Five Reasons Why the Iran Nuclear Deal is Still a Really Bad Idea

October 14, 2015

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Most Republicans in the House and Senate seem to have accepted that President Obama has won in his quest to enact the nuclear agreement between the P5+1 and Iran. Indeed, earlier efforts to block the deal on Capitol Hill have failed. Even Israeli Prime Minister Netanyahu seems resigned to the deal’s inevitability. But not everyone has given up. Several Republican presidential candidates have promised to nix the deal once they get to the White House. And indeed they should.

No other arms control or nuclear non-proliferation agreements have played out so publicly and divisively. The negotiations produced a tome — the Joint Comprehensive Plan of Action (JCPOA) — whose every word will be studied and parsed by governments, international organizations, military officers, academics, think tanks, non-governmental organizations, and others.

It is unusual for American negotiators to work so diligently, yet obtain an agreement that we would be better off without. Why, you ask? First, the deal provides international legal cover for Iran that will expedite its quest for nuclear weapons. Second, the United States will not know precisely when Iran possesses nuclear weapons unless it tests them. Third, the JCPOA should have been a treaty requiring Senate advice and consent rather than an executive agreement. Fourth, the most important commitment in the agreement is placed in such a manner that it would be irrelevant even if the agreement were legally binding. And finally, Iran freely violates treaty obligations, so will not likely observe a mere political commitment. Let’s go over each of these in more detail.

1. The agreement is legal cover for the bomb

The Obama administration asserts that the JCPOA will prevent Iran from building a nuclear weapon for 15 years. Instead, the agreement will facilitate Iran’s path to a nuclear weapon, while unwisely providing international legal cover for its entire nuclear program. The agreement breaks with decades of consistent, bipartisan nonproliferation policy. That understanding concerns an interpretation of the Nuclear Nonproliferation Treaty (NPT) in which states party to the treaty are entitled to the peaceful uses of nuclear energy, but not to enrichment and reprocessing technologies, which provide a clear route to nuclear weapons. This agreement announces to the world that it is fine to allow Iranian enrichment of uranium, even though we have not conceded that right to many allies (although we have done so indirectly with India). Iran will use this deal to keep the world focused in one direction, allowing inspections at declared facilities where nothing is happening, while pursuing its nuclear weapons goals at undeclared sites as it did, at a minimum, from 1985 to 2003. Iran knows how to play this sort of shell game.

Iran, of course, has no peaceful need for nuclear power, as it is sitting on a sea of oil — but let’s pretend that it does. Iran deems the offer of an international nuclear fuel bank — an alternative to its own nuclear program — as “nuclear apartheid” and refuses to support such a concept. But why would it refuse offers to have fuel rods shipped in and spent fuel removed from its reactors? This would not only save it the significant effort and expense of enrichment, but would also simultaneously remove all suspicion regarding intent to build nuclear weapons, because it is impossible to build them indigenously without enrichment of uranium or reprocessing of spent fuel to extract plutonium. That such a limitation is unacceptable to Iran only makes sense if Tehran is seeking a clear path to nuclear weapons acquisition. Further, only enrichment will permit Iran to build multiple nuclear weapons.

A state, as opposed to a terrorist group (although in the case of Iran, it is hard to tell the difference at times), requires more than one nuclear weapon, unless it is willing to use a very crude design. Otherwise, it requires a nuclear weapons program, allowing for several nuclear tests of a basic design, followed by manufacture of nuclear weapons based on a proven design. But we really don’t know what direction Iran will take to the bomb. By enriching uranium far in excess of the permissible 3.67 percent under the JCPOA, Iran could secretly expand its program to a point at which it has the requisite amount of highly enriched uranium to assemble a nuclear weapon in short order without nuclear testing. Estimates vary about how long this will take, but Iran already has the nuclear weapon designs. We don’t know if Iran has learned how to produce warheads able to withstand the rigors of ballistic missile flight and atmospheric re-entry, a technical achievement necessary to hold Israel or the United States at risk.

This uncertainty highlights the importance of the documents that the International Atomic Energy Agency (IAEA) seeks from Iran regarding the “possible military dimensions” of its program. Coming clean could well reveal a separate nuclear weapons bureaucracy in Iran, rather than mere development of a parallel nuclear fuel cycle. Iran has not yet produced those documents.

2. We won’t know Iran has the bomb ‘til they do

Thanks to the JCPOA, Iran may now go about its business in a manner that permits the maintenance of plausible deniability regarding its true intent. After all, why should anyone be concerned about Iran pursuing peaceful nuclear power? That right is guaranteed by the NPT, although Iran also insisted on enriching uranium, a right not specified in the NPT — at least according to the United States. The U.S. view on this matter is now a minority view in the international community, with most states, including Iran, believing that the NPT confers the right to enrichment.

The trouble with a surreptitious weapons program is that, like a thief in the night, it creeps up on you very slowly, not announcing itself, even once it has arrived. And Iran is studiously practiced at secrecy, evasion, and the art of denial on the international stage. We will surely fail to know if Iran elects to conduct a nuclear test, given the failure of the U.S. intelligence community to catch the nuclear tests conducted by India and Pakistan in 1998. Why are we so confident that effective monitoring of Iranian nuclear programs is possible now? Such certainly seems highly misplaced. American inspectors will not even be permitted inside Iran pursuant to the JCPOA, since citizens from states that do not have diplomatic relations with Iran are not allowed to join IAEA inspection teams in Iran.

3. It should have been a treaty

International agreements that enter into force for the United States after two-thirds of the Senate provides advice and consent are known as treaties. International agreements that enter into force for the United States without the advice and consent of the Senate are executive agreements. Typically, international agreements of major import are submitted to the Senate. No U.S. president has ever claimed the authority to negotiate such a highly controversial arms control or non-proliferation agreement unilaterally as an executive agreement. Usually, only minor agreements that attract little interest in the nonproliferation and arms control spheres have been concluded as executive agreements. Yet the JCPOA is of vital importance and produced major international attention and debate. It stands to re-shape the balance of power in the Middle East, and yet here we are with an executive agreement. Bruce Fein writes that the JCPOA is clearly a treaty pursuant to the U.S. Constitution and that the administration “mischaracterized the JCPOA as an executive agreement to avoid the necessity of Senate approval … (that is) beyond his political reach.” Because this is not a treaty, it is not legally binding and therefore stands as a mere political commitment.

4. The strongest language is in the least binding part of the agreement

The JCPOA’s preamble reads, “Iran reaffirms that under no circumstances will Iran ever seek, develop, or acquire any nuclear weapons.” After reading that, one might conclude that there is no need to delve any further into the cumbersome document, since the entire subtext of the agreement was to prevent Iranian acquisition of nuclear weapons. Given Iran’s willingness to make that commitment, why not just stop there? Unfortunately, this declaration only appears in the preamble and is therefore nearly irrelevant, as any international agreements lawyer will tell you.

International agreements typically have two major components: the preamble and operative clauses. Operative text is legally binding. In non-legally binding agreements such as the JCPOA, the operative text still constitutes the content the parties are substantively agreeing to, and is therefore politically binding. By contrast, text in the preamble is not legally binding and often represents ideas or concepts that are merely aspirational or that the parties were unable to agree to. Such language commits no party to do or refrain from doing anything.

Similar language occurs in the “preface” — whatever that is. I have never heard of a preface in an international agreement. But since the preface is not an operative part of the agreement, Iran need not act on it. If a preamble has no legally or politically operative meaning, then surely a preface does not either. The bottom line here is that even non-legally binding agreements such as this are still politically binding. But in the JCPOA, the critical binding language is placed to ensure that Iran need not follow it.

5. Iran will probably not take political commitments seriously

The JCPOA is a political commitment that can be changed at any point in time. Indeed, that is why most states have a strong preference for legally binding commitments over politically binding ones. Legally binding agreements typically have withdrawal clauses and provisions for entry-into-force, duration, amendment, and the like. For example, NPT Article X permits a state party to withdraw from the treaty if “extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.” Such clauses in arms control agreements usually require the withdrawing state to offer a rationale for its actions. Even though this is generally a subjective requirement, it nonetheless demands that a rationale be provided. Withdrawal clauses normally require 90-day notice to the other treaty parties (which, in important agreements, means notice to the world), prior to actual withdrawal.

So what the JCPOA boils down to is a statement by Iran that it won’t do certain things, such as enrich uranium above 3.67 percent for 15 years, unless the ayatollahs change their minds. And then it may do so. Upon expiration of that term, Iran could have everything it needs to make a nuclear weapon if it successfully cheats using multiple undeclared facilities where the JCPOA’s protections are the weakest. And what about Iran’s international behavior makes anyone think they won’t try to cheat and won’t be able to do so at least with partial success?

And that’s only if Iran purports to stick by its commitments.

Iran may very well manufacture some real or perceived grievance to withdraw from the JCPOA as well as from the NPT, claiming that the latter was signed during the Shah’s regime and must therefore be abrogated. It could manufacture similar excuses to withdraw from its commitment not to violate the object and purpose of the Comprehensive Nuclear Test Ban Treaty (CTBT), which it only signed and has not ratified, thus limiting its obligations. There is abundant precedent in Iranian behavior for breaking its commitments as a state, such as secret nuclear sites, threats to the existence of a UN member state, intercontinental ballistic missile programs, violation of its legally binding safeguards agreement, and a failure to provide information of the “possible military dimensions” of its nuclear programs.

A Really Bad Deal

Given the politically binding nature of this agreement, one might justifiably wonder why Iran presumably insisted that its promise not to seek nuclear weapons should be contained in what would normally be considered the non-binding portion of the JCPOA — the preamble. It is curious, is it not? Did Iran need this extra assurance that it could not in any way be held to observe this commitment? In fact, since Iran is a state party to the NPT, in which it made a legal commitment not to pursue nuclear weapons, one might ask what benefit the JCPOA confers at all, other than allowing IAEA inspectors back into Iran. But Iran is a big state and the IAEA has limited resources. Or are we hoping that the JCPOA will be taken more seriously than the legal commitment that Iran undertook with the NPT? Something is seriously out of kilter here.

Politically binding agreements are often still useful, and I don’t intend to demean such agreements unfairly. If politically binding agreements are reached with states that will observe them, they may be of great value. The United States typically treats its political commitments as it does its legally binding obligations — it scrupulously observes them, as most Western states do. In such cases, political commitments have clear value. But the JCPOA was not concluded with Belgium or Switzerland. Iran, which does not even follow certain legally binding commitments, such as its safeguards agreement with the IAEA, will not feel so constrained with a mere political commitment, an agreement of a lower order. A political commitment may be revoked by a simple statement from the president himself, or an executive branch official. Indeed, several GOP candidates for the White House have promised to nix the agreement and any president would have the clear authority to do so. Once a president states that America is no longer bound by the deal, the commitment is effectively terminated. An Iranian official may make a similar statement at any time and the JCPOA would become a dead letter.

How comfortable should we be with this commitment from Iran? It should give all of us pause.

 

David S. Jonas is a retired Marine Corps lieutenant colonel. He concluded his military service as nuclear nonproliferation planner for the Joint Chiefs of Staff. He was a member of the career Senior Executive Service and served as General Counsel of the National Nuclear Security Administration and the Defense Nuclear Facilities Safety Board. He teaches Nuclear Nonproliferation Law & Policy at Georgetown and George Washington University Law Schools and has also taught that subject at the U.S. Naval War College. He has negotiated dozens of international nuclear agreements, including the U.S.–India Civil Nuclear Agreement. He is widely published and is a frequent speaker on nuclear nonproliferation matters.

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5 thoughts on “Five Reasons Why the Iran Nuclear Deal is Still a Really Bad Idea

  1. Mr. Jonas might be correct that Iran will continue to develop nuclear weapons. After all, the Iranians might have concluded that the US does not invade countries with nuclear weapons.
    However, this agreement is more likely to curb that development than any other proposed way or means. And while Mr. Jonas poses reasons for concern, we could also identify reasons why the agreement will succeed.
    Moreover, Mr. Jonas fails to recognize the limited leverage the US has in this situation. What ways and means would be available to the US if Russia and China (and perhaps our allies in the EU) decided that Iran’s promises are adequate and lift their sanctions without waiting for the US?
    Regarding Iran’s need for nuclear power (which Mr. Jonas summarily dismisses), we should note that Saudi Arabia plans to construct 16 nuclear power reactors over the next 20 years at a cost of more than $80 billion, with the first reactor on line in 2022. Iran, like the Saudis, recognizes the limited value of their oil reserves and are preparing for the long-term.

  2. The Iranians, at least in this matter, are strategic thinkers. They have made substantial progress towards building a bomb, but paid an economic price. It’seems time for them to temporarily set aside that goal and restore their economy. Their embargoed funds will be returned, they will attempt to use part of those funds to solidify their conventional goals in the region. That will enable them to establish economic ties with Russia and China.

    Iran will acquire sophisticated SAM missile systems and more electro diesel subs and defensively position themselves. They obviously are continuing to work on missile systems development.

    When the time is right, maybe in 5 to 6 years, Iran’s leaders will drop all pretenses of cooperation and resume work on their bomb, counting on the fact that by that time their strategic ties with Russia and China will be so strong those nations will not agree to participate in another boycott.

    The U.S. will bite the bullet and advise Iran that our policy of MAD now includes them. Israel will then publicly announce their possession of atomic weapons and let the world know their nuclear warheads sitting atop Israeli Jericho III missiles can hit any location on the globe.

    Atomic weapons development will begin to proliferate across the Middle East and maybe elsewhere, perhaps starting in about six years. Kerry and Clinton will tell us they voted for it before they voted against it as the U.S. attempts and fails to restore an effective boycott. The Iranians have learned Bill Clinton’s deal with North Korea.

  3. Very many similar articles have been written, with the tone and qualities of rant: Broad, unsupported assertions; hyperbole; and little attempt to seriously, carefully present and analyze the various facts or arguments. Even I know much more than what is written here, discrediting most of what is said; these argument are, in a way, misinformation because they omit many crucial facts and issues; they also waste my time.

    The article attempts to persuade by anger and ridicule. I know that’s trendy – just watch some political candidates – but that means we need less of it and not more, and I understand that getting serious analysis into policy discussions is part of WOTR’s mission. As it is, the article only adds more confusion and emotion to a very confused, fraught discussion. It prevents rather than helps the nation address these issues thoughtfully, something we desperately need to do.

    It would be great to see clear thinking, fully informed, reasoned, expert analysis.

  4. 1) It is in no way legal cover for a nuclear weapons program. This simple fact is under international law it is perfectly legal for a nation to pursue a peaceful nuclear industry. Now I’m not saying that’s what Iran wants, but if we do not acknowledge Iran’s right to such a program, any diplomatic solution would be impossible. At least this deal puts legal limitations on the program, has reasonably thorough inspections process, and vitally, has broad international support. What other option is there? Demand that Iran stop any nuclear program, something it is entitled to under international law? That simply isn’t acceptable to Tehran or the international community at large. So really what you’re advocating is a military solution. You might as well just be honest about where you see this going.

    2) This is just factually incorrect. Yes, there will always be a breakout time to monitor, but this deal has dramatically INCREASED Iran’s break out time to ~5 years IIRC, from where it is currently at around 2 years (If I remember the WOTR podcast on this topic correctly). Anyway these kinds of increases in production are relatively easy to monitor, because the entire enrichment process is industrial in scale, and it’s very difficult to hide some of its components. For example, deliveries of yellow cake to enrichment centres are very visible, and there’s no good way to hide them. So they can’t just quietly double or triple their enrichment process without anyone knowing, and if they do, there will be broad international support for re-imposing the crippling sanctions regime which brought Tehran to the table in the first place. And in that case, all we are is back to where we were pre-deal. Thus we can pretty effectively monitor Iran’s enrichment process rather than waiting for testing of a weapon, which at current level of enrichment would be many years away.

    3) A treaty may have been better, but again the rest of us live out here in the real world and there was very little chance that the Senate would have accepted this deal. So what would you have had the administration do? Nothing? This is very strange reasoning: if the current deal cant be made into a treaty, what we should do is abandon diplomacy as a means to resolving this problem, as opposed to accepting an executive agreement which still achieves these goals diplomatically? That’s a pretty ridiculous position to take, if you ask me.

    And the treaties are not legally binding on congress. In any liberal democracy the people are sovereign, and their representatives can abrogate any law which is not bound in the constitution. Treaties can be, and have been, abandoned before. Congress can do what it likes in terms of legislation, of course accounting for Veto. Thus, the only difference between a treaty and an executive order is the former is a formal political commitment, you can put ‘mere’ in there if you like. Even if a treaty is violated, the imposition of penalties is a political action. There are countless historical examples of violated treaties were penalties were simply not applied due to the lack of political will in the other signatories; Germany’s militarisation of the Rhineland – a clear violation of the treaty of Versailles – comes to mind. Political commitment is ALL THAT MATTERS, treaty or no treaty.

    4) Again, this is pretty tangential. What matters in this agreement is the commitment by Iran to dramatically cut its enrichment program and submit to international monitoring. That is binding. That is what is important. That is what this deal achieved.

    5) This is simply worst case thinking. Yes, Iran may not openly back out of the deal but attempt a secret enrichment program. But the notion that they would be able to effectively increase their enrichment activities without alerting the international community, for 15 years, given both the visibility of the enrichment process and the formidable ISR capabilities of the United States, is VERY remote. They haven’t been able to keep their operations secret to date have they? But now why should we expect they will magically be able to in future, especially as now they have international inspectors to fool as well? Honestly this barely seems credible. Thus – this seems to be a recurrent theme here – the idea that we should abandon diplomacy because the Iranians might magically fool us for 15 years, doesn’t seem like a very sensible rationale to me. After all, couldn’t the Soviets have secretly developed and produced massively destabilising new delivery systems even though START 1 was in place? We could never be 100% sure could we? Thus why even bother with arms control agreements in the first place?

    But even with all of the very weak reasoning mentioned above, the biggest issue I have with arguments like this is they simply do not offer us an alternative. The truth of the matter is this may very well be the best deal we could achieve that was acceptable to both the international community and Tehran. Given the effort expended to this point, and the amount of time Iran had already endured a crippling sanctions regime, it seems to me if there was a better deal to be had, we probably would have seen it. Thus what you are really advocating here isn’t a better deal; it’s the abandonment of diplomacy, which leaves us with two options: increasing the sanctions regime and taking military action. Given how relatively insulated the IRGC is from sanctions, the ability and of Russia and Beijing to simply circumvent them, especially in terms of military systems, and the immense expenditure of political and economic capitol into the nuclear program to date, there is no reason to think that any sanctions regime imposed by the west would be effective enough to compel the Iranians to totally abandon its nuclear program.

    All that leads us with is the military option. But we should be honest about what that entails. We would not just have to strike Iranian nuclear infrastructure, which is extensive and hardened, but the Iranian IADS generally, which means as significant counter air and SEAD campaign: striking airfields, C3I nodes, radars, political facilities. In addition to that, we have to account for Iranian countermeasures in the straits of hormuz, which means a sustained campaign to roll back Iranian A2/AD capability from the coast, and a significant naval presence there. Thus we aren’t just talking about a few strategic strikes to take out a couple of bunkers, but a week long+ air campaign across the whole of Iran; it’s a dramatic escalation and there’s no reason to think the Iranians wouldn’t do everything in their power – which is significant – to destabilise Iraq and Afghanistan.

    So all of that, that’s what’s preferable to the deal we have on the table today?