Tan­gled in Obama’s Iran nu­clear trap

Cer­ti­fi­ca­tion of Tehran’s com­pli­ance is nei­ther wise, nec­es­sary nor ac­cu­rate

The Washington Times Daily - - COMMENTARY - By John R. Bolton and Paula A. DeSut­ter John R. Bolton is a former U.S. am­bas­sador to the United Na­tions and a former un­der­sec­re­tary of State for arms con­trol and in­ter­na­tional se­cu­rity af­fairs. Paula A. DeSut­ter is a former assistant sec­re­tary of State f

On April 18, the State Depart­ment cer­ti­fied Iran to be in com­pli­ance with its com­mit­ments un­der the Iran nu­clear deal (Joint Com­pre­hen­sive Plan of Ac­tion, or JCPOA). As France’s iconic for­eign min­is­ter, the Mar­quis de Tal­leyrand, once re­port­edly said: “This was worse than a crime; it was a mis­take.”

The ap­pli­ca­ble statute not only did not re­quire such a cer­ti­fi­ca­tion, it openly in­vited Pres­i­dent Trump not to make one if cir­cum­stances war­ranted, as they clearly did here. More se­ri­ously, the cer­ti­fi­ca­tion raises fun­da­men­tal ques­tions whether the State Depart­ment’s bu­reau­cracy knows or cares that U.S. Iran pol­icy has changed with the Trump ad­min­is­tra­tion’s ad­vent.

The ap­pli­ca­ble re­port­ing statute re­quires that, at least ev­ery 90 days, the pres­i­dent must de­ter­mine whether he “is able to cer­tify” that among other things, “Iran is trans­par­ently, ver­i­fi­ably, and fully im­ple­ment­ing the agree­ment, in­clud­ing all re­lated tech­ni­cal or ad­di­tional agree­ments,” and that “Iran has not taken any ac­tion, in­clud­ing covert ac­tiv­i­ties, that could sig­nif­i­cantly ad­vance its nu­clear weapons pro­gram.”

By the ex­plicit terms of the re­port­ing obli­ga­tion, the pres­i­dent (whose au­thor­ity had been del­e­gated to the sec­re­tary of State) was re­quired only to de­cide whether he could avow Iran’s full im­ple­men­ta­tion of its JCPOA obli­ga­tions. He was not re­quired to make a bi­nary choice, either cer­ti­fy­ing that Iran was com­ply­ing or that Iran was not com­ply­ing. He could have sidestepped, es­pe­cially given his ad­min­is­tra­tion’s short time in of­fice and its on­go­ing re­view of Iran pol­icy, not to men­tion what we know about Iran’s vi­o­la­tions just from pub­licly available in­for­ma­tion.

Of course, one con­se­quence of not cer­ti­fy­ing com­pli­ance is that the re­port­ing statute also pro­vides for ex­pe­dited leg­isla­tive con­sid­er­a­tion of new anti-Iran sanc­tions leg­is­la­tion. That may have been the bu­reau­cracy’s mo­ti­va­tion, but, given Mr. Trump’s clear views on the Iran deal, could hardly have af­fected the White House view.

How could such a mis­take have been made? Per­haps be­cause of a sig­nif­i­cant chal­lenge fac­ing Mr. Trump, namely avoid­ing be­com­ing en­tan­gled in a bu­reau­cratic trap set by his pre­de­ces­sor.

In crit­i­cal re­spects, Pres­i­dent Obama ne­go­ti­ated the JCPOA to be in­her­ently un­ver­i­fi­able. The vaguely writ­ten and in­ter­nally con­tra­dic­tory text of the agree­ment, with lan­guage in­vari­ably fa­vor­able to Ira­nian in­ter­pre­ta­tions that would sub­vert its os­ten­si­ble in­tent, is the op­po­site of how arms agree­ments should be writ­ten. This is no sur­prise, be­cause a ver­i­fi­able nu­clear agree­ment was not what Mr. Obama wanted. In­stead, he sought a po­lit­i­cal agree­ment with Tehran that would nei­ther re­quire Se­nate ap­proval nor be eas­ily ter­mi­nated by sub­se­quent ad­min­is­tra­tions. Given that ob­jec­tive, a tightly writ­ten, read­ily ver­i­fi­able agree­ment with which Iran never had any in­ten­tion of com­ply­ing would have been an ob­sta­cle rather than an aid.

Equally trou­bling were steps taken dur­ing Obama’s ad­min­is­tra­tion to lessen the State Depart­ment’s ca­pac­ity to de­ter­mine com­pli­ance with all in­ter­na­tional arms-con­trol agree­ments. In 1999, a re­mark­able bi­par­ti­san coali­tion led by Sens. Jesse Helms and Joe Bi­den, over the Clin­ton ad­min­is­tra­tion’s vig­or­ous ob­jec­tions, cre­ated in the State Depart­ment a Bureau of Ver­i­fi­ca­tion and Com­pli­ance (VC). The Se­nate For­eign Re­la­tions Com­mit­tee, in its re­port on the leg­is­la­tion cre­at­ing VC, re­jected the Clin­ton State Depart­ment’s pro­posed “de­mo­tion of ver­i­fi­ca­tion and com­pli­ance func­tions” by putting them un­der the assistant sec­re­tary for arms con­trol. Not­ing “a true com­mit­ment to vig­or­ous en­force­ment of arms con­trol and non­pro­lif­er­a­tion agree­ments and sanc­tions can­not be main­tained by sub­merg­ing com­pli­ance anal­y­sis within other bu­reaus,” and given “the in­evitable ten­sion be­tween en­force­ment of arms con­trol and non­pro­lif­er­a­tion agree­ments and the im­pli­ca­tions of en­force­ment with var­i­ous coun­tries,” the VC assistant sec­re­tary was to pro­vide the es­sen­tial in­de­pen­dent voice on ver­i­fi­ca­tion and com­pli­ance mat­ters “at the most senior level of the Ex­ec­u­tive Branch.”

VC was never ac­cepted by State’s arms-con­trol bu­reau­cracy. When Mr. Obama took of­fice, his ap­pointees im­me­di­ately and ef­fec­tively down­graded VC. Know­ing that re­peal of the Helm­sBi­den leg­is­la­tion was po­lit­i­cally im­pos­si­ble, the Obama ad­min­is­tra­tion in­stead merged VC into State’s arms-con­trol bureau, cre­at­ing the Bureau of Arms Con­trol, Ver­i­fi­ca­tion and Com­pli­ance.

The ver­i­fiers were thereby all but si­lenced. In fact, the merger es­sen­tially recreated the sit­u­a­tion that had given rise to the Helms-Bi­den leg­is­la­tion in the first place. As a re­sult, there was no in­sti­tu­tional check on the Obama ad­min­is­tra­tion’s de­sire to get a deal with Iran at any cost, par­tic­u­larly when it came to ver­i­fi­ca­tion. As as­sessed in the Sept. 2, 2015 Let­ter of Ex­perts to Mr. Obama, ver­i­fi­ca­tion of the JCPOA, is “com­pletely in­ef­fec­tive.” Thus, the very bu­reau­cracy that ne­go­ti­ated the deal now gets to as­sess Iran’s com­pli­ance.

In ad­di­tion to the vague­ness of many of the JCPOA’s terms, the agree­ment ex­presses many Ira­nian com­mit­ments as be­ing vol­un­tary, based on Iran’s “plans.” For ex­am­ple, “Iran will abide by its vol­un­tary com­mit­ments, as ex­pressed in its own long-term en­rich­ment and en­rich­ment R&D plan to be sub­mit­ted as part of the ini­tial dec­la­ra­tion for the Ad­di­tional Pro­to­col to Iran’s Safe­guards Agree­ment.” That is, af­ter Iran’s nu­clear pro­gram is de­clared to be peace­ful in eight years.

Can­di­date Trump called the JCPOA “the worst deal ever ne­go­ti­ated.” Now, the State Depart­ment per­son­nel who helped John Kerry en­sure it was a U.S. diplo­matic Water­loo will be free to color the Trump ad­min­is­tra­tion’s re­view of their work. Pres­i­dent Trump and his team should ur­gently ad­dress this crit­i­cal de­fi­ciency, or with ab­so­lute con­fi­dence, we can pre­dict it will re­turn to bite them again.

The vaguely writ­ten and in­ter­nally con­tra­dic­tory text of the agree­ment, with lan­guage in­vari­ably fa­vor­able to Ira­nian in­ter­pre­ta­tions that would sub­vert its os­ten­si­ble in­tent, is the op­po­site of how arms agree­ments should be writ­ten.

IL­LUS­TRA­TION BY LINAS GARSYS

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