Can the Iran Deal Be Fixed?

And should it be?

Omri Ceren   COMMENTARY MAGAZINE Mar. 15, 2018

https://www.commentarymagazine.com/articles/can-iran-deal-fixed/

President Trump and his administration are approaching a make-or-break May deadline for deciding whether to stay in the 2015 Iran nuclear deal. Lawmakers, analysts, and journalists have been struggling to reestablish something approaching a healthy debate in the aftermath of the factitious salesmanship of the Obama “echo chamber.” That was the mutually reinforcing and mutually credentialing network of ideologues, wannabe wonks, and callow journalists run by Obama’s deputy national-security adviser Ben Rhodes, who infamously bragged about how he had created it to drown out veteran journalists and experts.

If the Joint Comprehensive Plan of Action, or JCPOA, is a coherent cluster of policies in the service of a modest arms-control strategy, there might be a basis for building on it as policy. But if it is a mess of contradictions that can’t be integrated into any coherent policy advancing American interests, then there are a dozen different scenarios in which the deal’s collapse becomes inevitable long before it begins sunsetting in the mid-2020s, and Donald Trump should just withdraw from the deal and shake everyone out of their slumbers.

After a six-month comprehensive review process that concluded in October 2017, Trump declared that the JCPOA had been giving Iran too much in exchange for too little. Iran had been granted legalized nuclear and ballistic-missile programs, hundreds of billions of dollars, and the diplomatic and military space to expand across the Middle East right up to Israel and Saudi Arabia’s borders. For its part, Tehran gave up certain nuclear work for about a decade and agreed to let the UN’s nuclear watchdog monitor most of what remained.

The president was required by a 2015 law to assess whether ongoing relief from sanctions was “appropriate and proportionate” to Iranian behavior. Trump assessed that the answer was no. Even so, the deal was left in place. But the administration made clear that it considered the JCPOA fatally flawed for at least three reasons: a weak inspections regime in which the UN’s nuclear watchdog can’t access Iranian military facilities, an unacceptable arrangement where the U.S. had to give up its most powerful sanctions against ballistic missiles even as Iran was allowed to develop ballistic missiles, and the fact that the deal’s eventual expiration dates mean Iran will legally be allowed to get within a hair’s breadth of a nuclear weapon.

So, for the U.S. to stay in the deal, Trump said, Congress and the U.S.’s E3 allies—Britain, France, and Germany—would have to repair each of these flaws. On ballistic missiles, for example, the U.S. and the E3 would have to announce that as far as they’re concerned, Iran’s testing a prohibited ballistic missile would be the same as Iran’s testing a prohibited centrifuge, and sanctions would be reimposed. In January 2018, the president put an exclamation mark on the policy, announcing that he was starting a 120-day clock for the E3 to agree to the fixes. Without them, Trump said, he will have the U.S. exit the deal no later than the middle of May, when a technical sanctions deadline comes up.

The demand for coherence and clarity stands in stark contrast to the way Obama and his team handled the JCPOA after its announcement. After the deal was implemented in January 2016, the Iranians quickly started grousing that the U.S. wasn’t doing enough to restore their economy, and there were strong suggestions that State Department officials had promised them active help. What followed were months of interagency turf and policy battles between the Departments of State and Treasury. Secretary of State John Kerry would make up something about the need to invest in Iran or how financial crime risks had been mitigated, but Treasury officials would angrily pull U.S. policy back. In one episode in November, Kerry defined down a technical requirement related to investment risk, and State had to publicly reverse his position after an interagency bloodbath that went public.

This process often deepened the ambiguities and contradictions of the deal, many times in the context of Iranian demands for more sanctions relief. It preserved the deal in the short term, but it led to an untenable combination in which the Obamans secretly promised further sanctions relief while they promised American politicians and activists that they would push back against Iran.

Under the Trump administration, top White House and Treasury Department officials have been dispatched to Europe to emphasize to U.S. partners that, one way or another, inside the deal or outside, America will increase its pressure on Iran in response to the Iranians’ continuing their ballistic-missile development, regional expansionism, human-rights atrocities, terror sponsorship, cyberattacks, and other malign behaviors. National Security Adviser H.R. McMaster warned at the 2018 Munich conference that “when you’re investing in Iran, you’re investing in” Iran’s Islamic Revolutionary Guard Corps (IRGC), an entity that controls huge swaths of Iran’s economy and that was designated as a terrorist group by the Trump administration last year. Top Iranian officials, including the country’s foreign minister, Javad Zarif, described the efforts to chill investment in Iran for any reason as a violation of the nuclear deal.

It does appear that the Iranians genuinely believe they were implicitly (or maybe even explicitly) promised a hands-off approach—that the deal essentially prohibits the U.S. from using sanctions to keep Iran on the ropes in response to bad behavior. The terms of the JCPOA would suggest that this interpretation has merit, in the sense that the U.S. gave up its best nonmilitary leverage. In the banking sector, American diplomats agreed to lift sanctions on 23 out of 24 Iranian banks, including on the government-owned Central Bank of Iran, which bankrolls the IRGC. They also lifted sanctions on the full list of companies controlled by Iran’s supreme leader that had been designated in 2013.

The sanctions regime had been a patchwork of overlapping statutes, executive orders, and regulations aimed at countering the full breadth of Iran’s nuclear activities, global terrorism, ballistic-missile development, human-rights abuses, money laundering, military adventurism, and so on. In 2010, Congress passed the Comprehensive Iran Sanctions, Accountability, and Divestment Act to target not just nuclear activity but also terrorism, ballistic-missile development, and non-nuclear weapons of mass destruction. In 2011, the Treasury Department designated all of Iran as a jurisdiction of primary money-laundering concern, which is an illicit-finance issue. For 2012, that finding was cited at the top of a sanctions amendment to the defense-authorization bill about terrorism, proliferation, and sanctions evasion. The Central Bank of Iran was blacklisted for money laundering because the Iranians were using it to move funds for terrorism and ballistic-missile research, and to bolster the Assad regime.

Why the U.S. chose to shred the sanctions regime is a matter of ongoing debate. A straightforward explanation is that the Iranians would not accept anything less, and then President Obama ordered his negotiators to make the appropriate concessions. Another theory suggests that the Obama administration was trying to show goodwill, because staffers believed that past U.S. actions were the source of current friction with Tehran. Or did the Obamans view sanctions relief as part of a broader policy of tilting toward Iran, empowering it as a stabilizing regional hegemon and putting it beyond the reach of future U.S. pressure? There were enough differing views among the foreign-policy players in the Obama White House and State Department to sustain any of those theories. Many officials didn’t have any particular affection for the Iranians but accepted that giving Tehran what it asked for was necessary to secure the nuclear deal that the president badly wanted. Others had been known to suggest that Iranian hostility was an understandable reaction to past U.S. policies. Perhaps if Iran could be made to feel more confident about its geopolitical position, it would become less aggressive. Others speculated that Iranian political dynamics made regime moderation a plausible scenario.

The Iranians wouldn’t accept a deal in which only nuclear sanctions were lifted, because so many other sanctions would remain in place. So the Obama administration redefined non-nuclear sanctions as “nuclear” sanctions, just so it could lift them. The Associated Press archly reported that the administration said that almost anything counted as a nuclear sanction: “They say measures designed to stop Iran from acquiring ballistic missiles are nuclear-related because they were imposed to push Iran into the negotiations.… They say sanctions that may appear non-nuclear are often undergirded by previous actions conceived as efforts to stop Iran’s nuclear program.”

It’s impossible to overstate the consequences of this disingenuous wordplay. The JCPOA prevents the U.S. from using its most powerful sanctions against Iran without checking Iran’s ability to engage in activities that pose severe risks to the security of the U.S. and our allies. It’s a structural instability at the center of the agreement.

That instability is not just limited to sanctions. The Obama administration subordinated its entire Iran policy—and much beyond it—to securing the Iran deal. In late 2009, Tehran sent to Washington a list of Iranian operatives whom the regime wanted released from American custody and another list of anti-Iranian opposition groups it wanted the U.S. to blacklist—demands the Obama administration met in part. The administration dismantled anti-proliferation and anti-drug-trafficking efforts that were tripping up the Iranians and their proxies. It publicly attacked and secretly leaked against the U.S.’s traditional Middle East allies who feared the deal would unleash Iran. The president personally spoke about acknowledging Iranian “equities” in Syria and declined to enforce the “red line” he had drawn on Syria’s use of chemical weapons because it would have prevented the deal.

The way the Obama administration obfuscated its concessions on ballistic missiles and inspections—two of the flaws Trump is now demanding get fixed or else—also suggest just how far it had to go to secure Iran’s participation in the deal. The Obama administration insulated those concessions with deliberate Humpty Dumpty ambiguity, and Trump’s insistence on clarification may finally topple the deal.

In a July 2015 Senate hearing, Kerry sparred with Senator Bob Menendez over how the related UN Security Council resolution supporting the deal gutted what had previously been an absolute ban against Iran’s developing ballistic missiles. The resolution took previous UN language—“Iran shall not undertake any activity related to ballistic missiles capable of carrying nuclear weapons”—and weakened it in a number of ways, then said that even those weakened restrictions would expire after eight years. Menendez pushed Kerry on the change, to which Kerry responded that the new language was in fact “the exact same language.” Menendez was amazed and couldn’t do much more than point out that he was actually reading aloud the old and new language from a page. Kerry wouldn’t budge. Of course, the new language did gut the ballistic missile restriction.

The surreal quality of that exchange was soon supplanted by vulgar thuggishness on the part of the Obamans. A month after the announcement of the JCPOA, the Associated Press reported that rather than have the IAEA inspect Iran’s military base at Parchin, where the Iranians were broadly suspected of having conducted work relevant to nuclear warhead detonation, the deal would allow Iran to inspect itself. Experts expressed concerns about the establishment of a Parchin Precedent in which Iran would be allowed to keep its military facilities closed to inspectors.

The Obamans responded with an all-out press assault. They attacked the AP’s reporters by name, blasted them during briefings, ran to friendly reporters to help in the attacks, and whipped up online reaction. They even conscripted Democratic lawmakers. Senator Chris Murphy declared from the Senate floor, “There is not a single senator who could say the AP story was correct,” and Representative Debbie Wasserman Schultz said that she knew the story was false because she had been brought down to the White House Situation Room and shown proof, which she naturally couldn’t discuss. The AP scoop was subsequently confirmed. The Iranians were allowed to self-inspect.

It had always been a core demand of the international community that Iran needed to come clean on its past nuclear work, both to avoid kneecapping the IAEA—which had been in a protracted battle with the Iranians for years over Iranian opacity—and as a policy matter, because verifying any nuclear deal required determining what Iran’s past activities had actually been. Iran refused, and American diplomats collapsed on the issue. Kerry brushed off a reporter’s question by saying that the U.S. and its partners had “absolute knowledge” of Iran’s program anyway. Not “adequate knowledge,” which wouldn’t have been true either, but absolute knowledge! Shortcomings in intelligence about Iran’s past activities were confirmed by IAEA chief Yukiya Amano, former deputy national-security adviser James Jeffrey, and former CIA director Michael Hayden.

Two years after the nuclear deal was implemented, Iran’s military facilities have yet to be visited by the IAEA, according to all public accounts. IAEA officials suggested to Reuters that they are not going to make any requests that would give Trump an “excuse” to blow up the deal. For their part, the Iranians say their military sites are off-limits and were not included in the deal. Trump will have reason to be skeptical that any arrangement with the Europeans could ever get the IAEA to push the Iranians.

It’s not clear whether the president will tear up the deal. A team of American negotiators has been working on getting the E3 to agree to a range of fixes, and is testing whether there’s overlap between the maximum that the Europeans can give and the minimum that Trump will accept. The Europeans in turn are testing the Iranians to gauge their reactions and will likely not accept any fixes that would cause Iran to bolt.

The negotiations are problematic. The New York Times reported that, as far as the Europeans are concerned, the exercise requires convincing Trump they’ve “changed the deal without actually changing it.” Public reports about the inspection fix suggest that the Europeans are loath to go beyond urging the IAEA to request inspections, which the agency may be too intimidated to do. The ballistic-missile fix is shaping up to be a political disaster, with the Europeans refusing to incorporate anything but long-range missiles into the deal. That would leave us with inadequate tools to counter Iran’s development of ballistic missiles that could be used to wipe Israel, the Saudis, and our regional bases off the map.

The U.S. negotiating team is cognizant of all this, and the Europeans have gotten significant pushback. U.S. diplomats turned the president’s January demands into a checklist and made it clear to the Europeans that they’ll have to check every box. The Europeans for their part have been aggressively leaking and maneuvering—though that may be having the opposite effect of the one intended. Just before a March meeting between the U.S. and the E3 in Berlin on this topic, the State Department started quietly signaling that it would lay down the law on ballistic missiles, and the administration announced that Secretary of State Rex Tillerson will be replaced by current CIA Director Mike Pompeo. Tillerson was one of the main forces in the administration for preserving the deal. Pompeo has been one of the main advocates for dismantling it.

There is always reason to worry, however. The problem is structural. If the Obama administration was being deliberately ambiguous because it couldn’t publicly justify concessions that the Iranians absolutely demanded, then the Europeans will have discovered as much when checking in with Tehran in the aftermath of Trump’s demands. There is a risk the Trump administration may be pushed to accept the hollow fixes acceptable to the Europeans.

Fixing the deal in this way would be the worst of all worlds. It would functionally enshrine the deal under a Republican administration. Iran would be open for business, and this time there would be certainty that a future president will not act to reverse the inevitable gold rush. Just as no deal would have been better than a bad deal, so no fix would be better than a bad fix.