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In proposed Iran deal, Bush might have to waive law

'05 statute forbids providing reactor

WASHINGTON -- If President Bush follows through on a reported proposal to provide a nuclear reactor to Iran in exchange for a pledge by Iranian leaders to cease activities that could produce an atomic bomb, he could set up another confrontation between presidential power and a law passed by Congress.

In August 2005, Congress passed a law forbidding the United States from exporting any nuclear materials or equipment to countries the State Department says sponsor terrorism -- a list that includes Iran. The law allows Bush to waive the ban if he certifies to Congress that the technology transfer would not increase the risk that Iran will acquire ``nuclear weapons, nuclear reactors, or any materials or components of nuclear weapons."

The terms of the proposed deal, as reported in the European and American press, would involve the United States and European nations providing Iran with a light-water nuclear reactor technology to produce electricity. Legal specialists said that if the United States offers any equipment or know-how that results in Iran getting a nuclear reactor, it would be difficult for Bush to justify waiving the law.

Bush may not believe he is bound to obey the law, however. When he signed the Energy Policy Act of 2005 into law on Aug. 8, 2005, he issued a ``signing statement" in which he asserted that he has the authority to ignore several dozen of the newly-created statutes because they conflict with his interpretation of the Constitution.

One category of laws Bush challenged were statutes that could tie his hands in matters of foreign relations -- although he did not specifically mention the ban on exporting nuclear technology.

``The executive branch shall construe provisions of the Act that purport to direct the conduct of communications, negotiations, and other relations with foreign governments and international organizations . . . in a manner consistent with the Constitution's commitment to the president of authority to conduct the nation's foreign relations," Bush wrote.

A White House spokesman declined to comment yesterday on whether Bush believes he has the authority to disobey the nuclear-technology law .

``We have not publicly discussed any of the elements of the proposal, as we are allowing the Iranian government time to evaluate and respond," said National Security Council spokesman Frederick Jones.

The Bush administration has embraced an expansive theory of executive power under which the president has the constitutional authority to run the nation's foreign affairs, national security, and internal government operations largely free from constraint by laws passed by Congress. Under this theory, Bush could be free to ignore the transfer ban.

However, many legal scholars reject the administration's view. They say the Constitution clearly gives Congress the power to pass laws limiting the president's handling of national security and foreign affairs.

Richard Epstein, a prominent conservative and a law professor at the University of Chicago, said yesterday that the ban on exporting nuclear technology appears to fall well within Congress's authority.

``It may be that Bush is right on the [policy merits of] the deal . . . but what I really don't understand is how he thinks he can ignore statutes," Epstein said.

During the 1990s, President Clinton provided a nuclear reactor to North Korea as part of a deal to get that country to stop developing nuclear weapons. North Korea developed a nuclear bomb anyway, and last year Congress passed the ban on exporting nuclear technology to state sponsors of terrorism, with an eye on Iran.

The law was co-sponsored by former representative Christopher Cox, a California Republican whom Bush later named chairman of the Securities and Exchange Commission, and Representative Edward J. Markey, Democrat of Malden.

In a statement, Markey said the reported deal with Iran is ``both misguided and illegal." He said the only way Bush could give Iran the reactor while complying with the law would be for him to take Iran off the list of state sponsors of terrorism .

Bush has used signing statements to claim the authority to disobey more than 750 statutes -- more laws than all previous presidents combined.

Among the laws Bush has said he can ignore are a ban on torturing detainees, oversight provisions of the USA Patriot Act, whistleblower protections for executive branch employees, and rules and regulations for the military.

The Republican chairman of the Senate Judiciary Committee, Arlen Specter of Pennsylvania, promised last month to hold a hearing about the administration's use of signing statements. Also, the American Bar Association board voted unanimously last weekend to create a task force to explore the constitutionality of Bush's signing statements.

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