Sunday, July 19, 2015

I’ve Read the Nuclear Deal, Mr. President, and It’s Atrocious

By David Gerstman

Deal rewrites history: Iran committed no violations in the past

In his combative press conference last week to defend the P5+1 nuclear deal with Iran, President Barack Obama issued the following challenge:

So to go back to Congress, I challenge those who are objecting to this agreement, number one, to read the agreement before they comment on it; number two, to explain specifically where it is that they think this agreement does not prevent Iran from getting a nuclear weapon, and why they’re right and people like Ernie Moniz, who is an MIT nuclear physicist and an expert in these issues, is wrong, why the rest of the world is wrong, and then present an alternative.

First off it’s worth noting that Energy Secretary and MIT nuclear physicist Ernest Moniz said back in April that to be effective the deal would have to include “anytime, anywhere,” inspections, so Obama’s explanation about why 24 days notice is now good enough fails to convince me.

I want Moniz to explain why he changed his position on this AND why 24 days is now acceptable. I would like Deputy National Security Adviser Ben Rhodes to explain why he walked back his comments on requiring “anytime, anywhere” inspections.

And I want a more convincing explanation than negotiator Wendy Sherman’s excuse that the term was just a “rhetorical flourish.” (If that was a rhetorical flourish, I’m curious how many other administration comments about the nuclear deal were rhetorical flourishes.)

But in that paragraph, Obama limits the grounds of questioning the deal to whether the language of the deal is insufficient to prevent Iran from achieving a nuclear breakout over the course of the deal.

Here’s where I have problem. Even if the agreement was airtight, and I doubt that it is, there’s a matter of the administration’s behavior during the Joint Plan of Action, which was agreed to in November 2013. The problem is that the Obama administration has acted as “Iran’s attorney” covering for Iran’s violations of the previous agreement.

In a notable episode last month, administration officials attacked The New York Times for reporting that Iran would likely fail to reduce its stockpile of enriched uranium by the June 30 deadline. In the end Iran did reduce its stockpile but not by the method prescribed and not to the form that it was required to.

The nonproliferation think tank, the Institute for Science and International Security, earlier this month, explained why the administration’s behavior in this case was troubling:

The reason is not that somehow one form or other of LEU oxide is harder to turn back into hexafluoride form for use in a breakout. This is almost irrelevant to the debate. Unfortunately, these main forms of LEU oxide are straightforward to convert back and use during a breakout. That is a principal reason that in a final deal the United States wants all but 300 kilograms (kg) of Iran’s near 10,000 kg of LEU shipped out of the country or blended down to natural uranium. The United States is now making a very narrow interpretation of this provision in the JPA, and an interpretation that is at odds with its previous positions and common sense. It is also an interpretation that appears to favor Iran and not the United States. Reaching this interpretation seems overly driven by the administration’s fear of Congress. The administration appears to have lost sight of the true adversary in its on-going battle with Congress.

This weakening of interpretations is a bad precedent for the future. This case signals a U.S. willingness to legally reinterpret the deal when Iran cannot do what it said it would do, in order to justify that non-performance. The United States should have said, like we do, that Iran has not met its commitment in the JPA on this issue and fully explained the status of the stocks and what the future remedy will be. It should have used that position as leverage to gain additional concessions from Iran. Experts and Congress may have noted the discrepancy with concern but few would have advocated walking away from the JPA as a result of a frank discussion of this issue last winter or even now.

So President Obama made a point of appealing to science or scientific expertise as proof that his deal is solid, but when science said that a previous deal wasn’t being observed, the administration attacked the science!

President Obama insists that the fear of “snapback sanctions” (probably unworkable) will keep Iran from cheating. But if the administration’s past performance is any indication, Iran has nothing to fear. There will be no “snapback’s” if no violation is declared. If the administration papered over Iranian violations to keep negotiations going, what are the chances it will declare Iran in violation now that a new agreement has been reached?

So Obama’s challenge doesn’t work on two levels. The science might not be right and the problems with the deal, the Joint Comprehensive Plan of Action (JCPOA), extend to more than just what’s written in the deal.

But there’s another aspect to the deal that’s disturbing. I will quote a few non-contiguous items from the deal:

18. The UN Security Council resolution endorsing this JCPOA will terminate all provisions of previous UN Security Council resolutions on the Iranian nuclear issue – 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) – simultaneously with the IAEA-verified implementation of agreed nuclear-related measures by Iran and will establish specific restrictions, as specified in Annex V.

26. The EU will refrain from re-introducing or re-imposing the sanctions that it has terminated implementing under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. There will be no new nuclear related UN Security Council sanctions and no new EU nuclear-related sanctions or restrictive measures. The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realisation of the full benefit by Iran of the sanctions lifting specified in Annex II. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions. Iran

has stated that it will treat such a re-introduction or re-imposition of the sanctions specified in Annex II, or such an imposition of new nuclear-related sanctions, as grounds to cease performing its commitments under this JCPOA in whole or in part

36. If Iran believed that any or all of the E3/EU+3 were not meeting their commitments under this JCPOA, Iran could refer the issue to the Joint Commission for resolution; similarly, if any of the E3/EU+3 believed that Iran was not meeting its commitments under this JCPOA, any of the E3/EU+3 could do the same. The Joint Commission would have 15 days to resolve the issue, unless the time period was extended by consensus. After Joint Commission consideration, any participant could refer the issue to Ministers of Foreign Affairs, if it believed the compliance issue had not been resolved. Ministers would have 15 days to resolve the issue, unless the time period was extended by consensus. After Joint Commission consideration – in parallel with (or in lieu of) review at the Ministerial level – either the complaining participant or the participant whose performance is in question could request that the issue be considered by an Advisory Board, which would consist of three members (one each appointed by the participants in the dispute and a third independentmember). The Advisory Board should provide a non-binding opinion on the compliance issue within 15 days. If, after this 30-day process the issue is not resolved, the Joint Commission would consider the opinion of the Advisory Board for no more than 5 days in order to resolve the issue. If the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant nonperformance, then that participant could treat the unresolved issue as grounds to cease performing its commitments under this JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes significant non-performance.

37. … Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part.

Item (18) quoted above means that all of the resolutions involving Iran’s failure to comply with the Nuclear Nonproliferation Treaty (NPT) will be erased. These resolutions were passed because Iran pursued an enrichment program outside of its NPT obligations and failed to account for all of its past nuclear research.

Iran has maintained its enrichment program, and will be allowed to continued it under the terms of the JCPOA. It still has not come clean about its past nuclear work, and for the sanctions relief to take hold, Iran apparently only has to commit to admitting its past nuclear work to the International Atomic Energy Agency (IAEA). The JCPOA, in effect, legalizes Iran’s years of violations and rewards them for limiting their level of violations in the future.

The best analogy I could think of would be a corporation having been found in violation of emission standards for years agreeing to a deal that would absolve them of all fines accumulated over the years, have the violations expunged from government records and allowing the corporation to continue polluting at 50% over the standards instead of 100%.

Item (36) is curious too. I know that Iran’s Foreign Minister started off these negotiations with a presentation calling the crisis over its nuclear program an “unnecessary crisis.”

All along Iran called the sanctions “illegal.” So part of its goal was not just to get the sanctions removed, but to rewrite history so that Iran becomes the aggrieved party. By agreeing to cancel all the relevant Security Council resolutions about Iran’s nuclear program, the P5+1 nations are effectively rewriting history to Iran’s benefit. Worse, the Joint Commission empowers Iran to bring complaints against the other nations involved.

If the IAEA detected a violation and, say, France initiated an action against Iran in the Joint Commission, (another reason “snapback” is a fantasy), what would stop Iran from bringing some arbitrary action against France, and offer to drop it if France drops its action? I’m not a lawyer, maybe this is addressed elsewhere, but based on Iran’s behavior they will take advantage of any opening it is afforded in the deal.

And this brings us to (37) and the end of (26). If the process of finding Iran in violation is completed and an effort is made to reimpose sanctions, what is to stop Iran from saying, “okay we’re leaving the JCPOA.” Obama has said that this negotiation process has kept a rein on Iran’s nuclear development, but doesn’t this mean that an attempt to re-impose sanctions if Iran is found in breach of its obligations could mean that Iran could then legally “cease performing” its JCPOA obligations?

I see that (26) has language about the dispute resolution process, but if Iran loses that process and still maintains that it committed no breach, what’s to stop Iran from saying it was framed? Remember that the JCPOA rewrites history saying that Iran committed no violations in the past, what’s to stop Iran from doing that again,especially when there’s language that seems to preemptively gives them the means to do so?

So yes, Mr. President I have read the deal. Given the combination of your administration’s behavior and what’s written in this document, it is awful.

Read more at Legal Insurrection. [Photo: European External Action Service / Flickr ]

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