Iran Nuclear Agreement

For six years the mantra of the Obama administration about the Iran nuclear negotiations has been simple, direct, and powerful: "No deal is better than a bad deal." One cannot count the number of times the President, his secretaries of state, his national security advisors, and his negotiators have said exactly this--including this week when Susan Rice repeated it to an AIPAC audience. Some people believe the proposed deal is a bad deal, and therefore that no deal is better. One might have expected the administration to reply "No, here we disagree; on its merits this deal is a good one." The administration says that but cannot leave it there. We also hear, and have been hearing for months, that unless you accept the proposed deal you are choosing war. If you’re the prime minister of Israel and criticize the deal, you’re no longer an ally; you’re treated with vicious invective. If you object, you’re told you don’t really seek a better deal; you are seeking a collapse of the talks. To quote Susan Rice,"we cannot let a totally unachievable ideal stand in the way of a good deal." But how does one define what is totally unachievable? Our Congress is not permitted by the administration to play any role. The administration seeks to limit public debate by scolding and warning the Israelis against revealing supposedly secret information-- not secret from Russia, or China, or Iran, but from the American people. Suddenly our choice is not a bad deal or no deal, it’s this deal or a conflict with Iran. The administration treats disagreement on this as a nearly form of sedition. Yet those who disagree include not only the government of Israel: many members of Congress in both parties fear the terms of this agreement that is apparently near conclusion. From the bitter experience of North Korea the administration has apparently learned little--and that was a bad deal that was surely worse than no deal at all. Disagreement is predictable and a healthy debate is essential. But the explanation that we must now choose between any deal this administration can get or war with Iran is an unworthy argument that should be met with derision.      

Two remarkable statements must be juxtaposed to understand how much trouble lies ahead in trying to get a nuclear deal with Iran. Thus far, the trouble has been over the temporary arrangements, meant to last six months and likely to be extended for another six. That deal was reached last year and an implementation agreement then took two more months to reach. The next task is to negotiate an arrangement that is comprehensive and permanent. How likely is that, and have we really thus far reached any agreement at all? The first statement is that of the Institute for Science and International Security (ISIS)  in Washington, reported by The Wall Street Journal. ISIS is led by former UN weapons inspector David Albright.  This is from the Journal’s account of the ISIS report:   The report by Mr. Albright’s institute focuses on denying Iran the ability to make weapons-grade fuel through the two separate tracks Tehran is developing: the enrichment of uranium and the production of plutonium. On uranium enrichment, ISIS said Iran’s activities must only take place in Natanz. A second, underground plant near Qom needs to be closed to guarantee better IAEA monitoring, it said. The study concluded Iran also needs to reduce to 4,000 the total number of centrifuges it is operating from a current capacity of nearly 20,000. This will deny it the ability to quickly produce the highly enriched uranium needed for a bomb.   So denying Iran a weapons capability means it must destroy 15,000 centrifuges. And as the Journal notes, "The institute’s prescriptions aren’t viewed as particularly harsh or hard-line. The report accepts that Iran will maintain some ability to continue producing nuclear fuel as part of a final agreement through the enrichment of uranium at low levels for civilian use." How likely is it that Iran will agree to destroy 15,000 centrifuges? The second statement, that of Iran’s foreign minister Mohammad Javad Zarif, offers an answer.  Zarif was in Davos this week, and did an interview with CNN’s Fareed Zakaria that will be broadcast on Sunday, February 2nd. "We did not agree to dismantle anything," Zarif said.  And there’s more:   Zarif told CNN Chief National Security Correspondent Jim Sciutto that terminology used by the White House to describe the agreement differed from the text agreed to by Iran and the other countries in the talks -- the United States, Britain, France, Russia, China and Germany. "The White House version both underplays the concessions and overplays Iranian commitments."   In old-fashioned contract law, a contract (say, for instance, a nuclear deal) is only reached when the parties have a meeting of the minds. As one law dictionary puts it, "when two parties to an agreement (contract) both have the same understanding of the terms of the agreement. Such mutual comprehension is essential to a valid contract." Black’s Law Dictionary, the most famous one, says that a contract requires "mutual assent," defined as a "meeting of the minds" in which each of the  parties "agrees to all the terms and conditions, in the same sense and with the same meaning as the others." Nuclear negotiations are not private contracts, of course, but the old contract law precepts ought to give us pause. If the parties disagree strongly over what has been agreed, has anything really been agreed?  

There are many arguments today about the substance of the agreement between Iran and the P5+1. But there is a prior question: is there really an agreement at all? Looking at the text of the "agreement," the most striking thing is the conditional or aspirational language:   The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iranˈs nuclear program will be exclusively peaceful....This comprehensive solution would build on these initial measures....There would be additional steps in between the initial measures and the final step....This comprehensive solution would involve a reciprocal, step-by step process....   Would, would, would. Not "shall." The White House fact sheet on the "agreement" says that   Today, the P5+1 and Iran reached a set of initial understandings....   But the White House text keeps saying "will," not would. It does seem, at a minimum, that the "agreement" reached in Geneva is not self-executing and will next require negotiation of an implementation agreement. The text of the agreement says that "The E3+3 and Iran will be responsible for conclusion and implementation of mutual near-term measures...." But the need for "conclusion" of near-term measures suggests that the "near-term measures" are not actually yet agreed. The Obama administration should clarify whether that is or is not the case, because the entire "agreement" can be hung up over that negotiation over implementation. The "agreement" does not appear to be binding on any party, which is convenient for the Obama administration in one way: no one can argue that it is a form of treaty that must be approved by the Senate. But what is this beast? Is it a binding agreement at all? An "Executive Agreement?" An expression of intent? Given the difficulty ahead in getting Iran to comply with any promises it has made, the exact nature of those promises is worth defining.