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What the White House Announcement on Iran Deal Really Means: Three Takeaways

Three takeaways help to understand the significance of President Donald Trump’s announcement of a new policy toward Iran and steps he is asking Congress to take with respect to the existing multilateral nuclear agreement. These takeaways make clear that Trump is not expected to refuse to certify Iran’s compliance with the nuclear deal. Instead, the White House appears to have joined nuclear experts and our allies in the shared assessment that Iran remains in compliance. That’s what makes the proper path ahead for Congress much clearer as Trump puts the ball in their court.

1. The President is not pulling out of the deal:  The administration is effectively conceding Iran’s compliance with the agreement and aiming to keep the U.S. in compliance, for now

The Trump administration is effectively recognizing that Iran is in compliance with the Joint Comprehensive Plan of Action (JCPOA) and reaffirming U.S. participation.  While the White House’s statement accuses Iran of “exploit[ing] loopholes” in the deal and refusing access by international inspectors to military sites, Jarrett Blanc and James Acton’s analysis shows that access requirements have been upheld, and even the White House stopped short of portraying its allegations as a violation of the deal.  Nevertheless, the President will fail to provide a certification to Congress that is required, not under the JCPOA, but under a domestic statute called the Iran Nuclear Agreement Review Act (INARA). As I explained earlier this week at Just Security, there are four parts to the certification, which must be provided every 90 days.  While three relate to Iran’s compliance with the JCPOA, the fourth is that “suspension of sanctions related to Iran pursuant to the agreement” is “appropriate and proportionate to the specific and verifiable measures taken by Iran” with respect to its nuclear program and “vital to the national security interests of the United States.”  In other words, the administration is asserting that the suspension of our nuclear-related sanctions under the JCPOA is not proportionate to the nuclear steps Iran is taking, and/or that it is not in the national security interests of the United States.  (I previously explained why this is a manufactured pretense, especially since nothing material has changed since the two times the Trump administration certified the deal.)

Under INARA, the President’s failure to provide this certification opens a 60-day window for Congress to use fast-track procedures to “snap back” into place the nuclear-related sanctions that were suspended to implement our end of the deal.  Snap back would be a U.S. violation of the deal while Iran remains in compliance, tantamount to walking away entirely.  But Congress is not required to take any action in the event of a failure to certify.  And the White House is not calling on Congress to use INARA’s fast track to snap back.  So long as Congress doesn’t decide of its own accord to abandon the deal through snap back, the most likely outcome in the immediate term is that the JCPOA will remain intact.  That’s the good news.

2. The President’s asking Congress to legislate the collapse of the deal – automatically snapping back nuclear sanctions even if Iran remains in compliance would violate our commitments

The bad news is that the President is asking Congress to amend INARA to provide for the automatic snap back of our nuclear-related sanctions even if Iran remains in compliance with the JCPOA.  The draft legislation has not been made public (although Senators Corker and Cotton appear to be crafting a proposal based on the administration’s plan), but the idea seems to be that re-imposition of nuclear sanctions will occur: (1) at each of the points in time when a sunset in the deal would be reached, unless Iran continues performing that commitment even after it is no longer required to do so by the deal itself (this would be at 10, 15, 20, or 25 years depending on the commitment); and (2) in the event of unspecified, non-nuclear activities occurring, such as activities related to Iran’s ballistic missile program.  As I explained earlier this week, the attempted unilateral renegotiation through domestic legislation of a functioning multilateral arrangement is a badly misguided fantasy scenario. Colin Kahl (former national security advisor to Vice President Biden) has elaborated extensively why renegotiation won’t work in his piece, “The Myth of a Better Iran Deal.”  Here’s a brief overview of why the new legislation the President is seeking from Congress is so misguided.

So long as Iran has not violated the JCPOA, re-imposing sanctions is a violation of our commitments:  In the JCPOA, we committed to continue the lifting of our nuclear-related secondary sanctions, and not to impose new ones, so long as Iran continues to comply with its nuclear commitments.  If we stop the lifting of our sanctions based on activity that is not connected to the existing terms of the deal, we’re the ones who would be breaking our word and end up isolated.  If Iran remains in compliance with the deal, it is permanently and verifiably prevented from building a nuclear weapon, but breaking our commitments frees Iran from the significant restraints on its nuclear program under the deal.  This is true whether the President violates our commitments – such as by failing to continue to waive nuclear-related sanctions – or whether Congress legislates violations through creating automatic snap back tied to triggers that are unrelated to JCPOA compliance.  It’s also true that the U.S. would be breaking its commitments and freeing up Iran whether new snap back triggers are an attempt to alter the deal’s nuclear requirements (such as changing the agreed sunset of certain provisions over a 10 to 25-year period), or an attempt to add new issues to the deal as it was agreed (like ballistic missile-related restrictions). Just imagine what would happen if Iran announced it was not going to honor some of its nuclear commitments because of unrelated U.S. actions in Syria or because the U.S. would not provide even greater relief from sanctions above what the deal required.  The U.S. and our allies would rightfully call them out for cheating on their commitments, and Iran would be painted as a dangerous rogue that cannot be trusted in any future negotiations.

It’s also important not to lose sight of the fact that Iran is prohibited from pursuing a nuclear weapon at any point during the deal.  And the key monitoring and access provisions that are permanent ensure that if Iran ever tried to do so in violation of its commitments, inspectors would know, and we would have all of the options we currently have to stop Tehran from doing so. Indeed, we would also have international support behind us, and the opposite is true if Congress goes along with President Trump’s despoiling the JCPOA through legislation.

The Trump administration also appears to be interested in negotiating a separate multilateral agreement on Iran’s ballistic missile program, recognizing that the odds of success in this endeavor are likely to be low.  It is possible that this could be explored in a way that does not violate the JCPOA – but one way of ensuring failure at the outset of a diplomatic initiative to pursue a new multilateral agreement would be to violate our existing one with the same partners.

Automatic snap back is dangerous and ties Congress’ hands:  It’s worth pausing on one more feature of the legislation the President is pursuing: the new triggers for snap back of sanctions are supposed to be “automatic.”  It’s not entirely clear what this means, although one straightforward interpretation would be that Congress is being asked to pass legislation to take itself out of the equation entirely in the future – with no choice whether or not to vote on snap back, and no fast track mechanism. The snap back would simply be mandatory once the President determines a trigger point has been reached. The President can already pull the United States out of the deal unilaterally, and he appears to now be asking Congress to bless his doing so in advance, based on issues beyond the scope of the deal.  Congress was wise not to tie its own hands to the president’s determinations when it passed INARA, and it would be wise to resist the call to do so now. Congress would also easily (and rightfully) be blamed for the President’s later misuse or abuse of that greater authority.

3. The new sanctions on Iran stop short of designating the IRGC a foreign terrorist organization (FTO) and are intended to be consistent with our JCPOA commitments

The administration has rejected the idea of designating Iran’s Islamic Revolutionary Guard Corps (IRGC) as an FTO, like previous republican and democratic administrations before it, which would have been an unprecedented step for the armed forces of a sovereign country.  Instead, it will be imposing a new round of targeted sanctions, relying on existing authorities related to support for terrorism, against specific individuals and entities that are owned or controlled by the IRGC.  This, too, has been done previously by administrations of both parties, and will likely avert the feared security consequences of an FTO designation.  Also of interest, this move appears to be designed to remain compliant with our sanctions commitments in the JCPOA.

 

[Editor’s Note: Don’t miss Tess Bridgeman’s analysis from earlier this week:“How Congress Should Avoid Taking the Bait if Trump Fails to Certify Iran Nuclear Deal”]

Image: adventtr/Getty

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About the Author

Former Special Assistant to the President, Former Associate Counsel to the President, Former Deputy Legal Adviser to the National Security Council (NSC), Formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser