By Seyed Hossein Mousavian
To avoid that outcome, and allow full implementation of the nuclear deal, European and other non-American banks want concrete legal assurances from the United States government that they would not be punished if they entered Iran.
We firmly believe that President Obama has the power to provide such assurance, and that he should use it now.
To be specific, he should officially instruct his attorney general, and all subordinate American enforcement agencies, to refrain from prosecuting non-United States banks that wish to work with Iran. In other words, he should call a moratorium on American prosecution of foreign firms, sending the clear message that prosecution would not be the norm, but an improbable exception.
Such action would not be far-fetched. In fact, we believe that a strong case can be made that it would have precedents in the foreign-policy and constitutional history of the United States. For example, in 1831, Andrew Jackson’s attorney general, Roger B. Taney, issued a legal opinion in a case known as “Jewels of the Princess of Orange,” stating that the president, in his constitutional roles overseeing the execution of laws and conducting foreign affairs, also had the power to decide not to prosecute.
Since then, there have been other instances of presidential uses of executive power over law enforcement that have gradually consolidated the principle that the president, not courts or prosecutors, makes foreign policy. In 1981, for example, the Supreme Court in Dames & Moore v. Regan supported Ronald Reagan’s power to redirect a private claim against Iran to an independent claims tribunal in the Netherlands.
In sum, if the president finds that Washington politics make it impossible for him to work with Republicans to adapt domestic laws to the United States’ foreign-policy needs (and, at this point, to American obligations under international law), we believe that he can, and should, at least use his authority over law enforcement and foreign policy to protect the achievements of the nuclear deal.
The Iranian leadership, and with it the Iranian public, strongly believe that the American president has enough power and authority to solve the banking problem, and expect Mr. Obama to act accordingly. We believe that European countries share this expectation.
But time is running out, and nobody can be sure of the outcome of the coming presidential election. So Mr. Obama must act as quickly as possible. Prompt and specific reassurances from the administration that foreign banks would not be punished for conducting legitimate business with Iran would give financial institutions enough time to shape and sufficiently develop their business ties with Iran. That, in turn, would make it difficult for any new administration to reverse Mr. Obama’s policy of constructive engagement.
In other words, we believe that the remaining days of the Obama administration should be devoted to consolidating and stabilizing the post-agreement international order, and the numerous economic, political and security benefits it could bring everyone.
In the same vein, it is also said in Tehran that a few serious and sizable American investments in Iran — in fields allowable under current American laws — would send a very positive message to America’s allies, and allay the fear of other Western actors who might still be reluctant to enter the Iranian sphere.
Seyed Hossein Mousavian, a scholar at Princeton, is a former head of the Foreign Relations Committee of Iran’s National Security Council, and the author of “Iran and the United States: An Insider’s View on the Failed Past and the Road to Peace.” Reza Nasri is an international law expert at the Graduate Institute of International and Development Studies in Geneva who specializes in charter law, comparative law and legal aspects of Iran’s nuclear dosssier.
20 June 2016