The Slippery ‘Spirit’ of Nixing the Iran Deal

President Donald Trump announced on Friday that he will not certify the Iran deal. As Elena Chachko and Suzanne Maloney have already explained, this will not necessarily lead to the reimposition of sanctions. It will, however, trigger a period of intense congressional debate and geopolitical uncertainty. According to the deal’s architects, this is enough to unleash disastrous foreign policy repercussions.

Perhaps these critics are correct. However, an honest reckoning with the president’s decision must include not just projections about its effects, but also an evaluation of its causes. Foremost among these is the framework created by decades of U.S. sanctions legislation.

First, consider the certification requirement. Despite some misleading reporting, certification is not simply a matter of the president affirming or denying whether Iran is complying with the 2015 nuclear deal. On the contrary, current law requires that a president make two different kinds of determinations. First, the president must decide whether Iran  is “transparently, verifiably, and fully implementing the agreement;” is not in “material breach with respect to the agreement;” and has not acted to “significantly advance its nuclear weapons program.” Second, the president must also make more general determinations about the worth of deal: whether the suspension of sanctions is “appropriate and proportionate” to Iranian conduct and “vital to the national security interests of the United States.”

The existence of these twin requirements places the president’s expected certification decision in a different — even reasonable — light. Rather than claiming Iran is in material breach when, according to most judgements, Iran is largely complying, the president can claim that his failure to certify is based on his evaluation of American interests.

This claim has the virtue of truth. For better or worse, Trump really does seem to believe that the United States would be better off taking a harder line with Iran. So, the president’s failure to certify is best understood as a policy disagreement rather than a politically motivated lie about Iranian actions. Just as my Lawfare colleague Benjamin Wittes has encouraged readers not to become accustomed to presidential lying, recognizing this difference is crucial.

As importantly, the existence of these twin determinations also means that a president’s refusal to certify would comply with law. The certification determinations are not optional. The Iran Nuclear Agreement Review Act (INARA) mandates that “the President shall, not less than every 90 calendar days” make such determinations, and that if he is able to certify an affirmative answer to congressional leadership, he must do so. So if not for the law’s “national interests” determination, a presidential failure to certify would actually be a violation of law. This too is important to ignore. Even now, specific presidential breaches of law would be a big deal. As Jack Goldsmith has noted, while Trump has profoundly eroded American political norms, he has been “almost entirely blocked from violating laws.”

Of course, Trump did not draft the INARA; Congress did. If members of Congress dislike that certification requires a policy judgement — in addition to a factual one about compliance — they have only themselves to blame.

In fact, the legislative origins of the dual determinations framework lie even deeper than the INARA. It’s crucial to remember that the American sanctions regime did not begin with Iran’s nuclear program. It accrued over decades, frequently referencing Iran’s nuclear program — but just as frequently citing Iran’s heinous human rights record, support for terrorism, and destabilizing regional role. During the nuclear negotiations, American officials made a show of only bargaining away “nuclear-related” sanctions. Yet the troublesome truth is that there is no such category. The vast majority of sanctions punished Iran both for its nuclear behavior and for other activities in conflict with American interests.

It is precisely because these sanctions are complex, multipurpose policy tools that Congress sought to provide presidents with maximum flexibility. Therefore, the vast majority of sanctions contained provisions permitting a president to waive or suspend sanctions when he determined it was “essential to the national interest” to do so. Because sanctions were never just about nuclear weapons, presidents would be required to make wider judgements as they adjusted sanctions to control Iranian behavior.

This suspension power was precisely what President Barack Obama used so effectively in reaching a deal without congressional support. In doing so, he operated within the legal framework that already existed. In accordance with underlying sanction legislation, he affirmed — publicly and repeatedly — that these suspensions were essential to the national interest.

In the lead up to the nuclear deal, opponents lacked the votes in congress necessary to block it. But a strong bipartisan majority did agree that the preexisting certification requirements ought to continue to limit future presidents. Consequently, the INARA’s demand for recertification that sanctions relief is “vital to the national interest” is a retention of a standard at the heart of decades of American sanctions policy.

None of this means that Trump’s evaluation of the national interest is particularly wise. But it does mean that criticism based entirely on the claim that “Iran is in compliance” is inadequate. Indeed, decades of law dictate that the president must look beyond compliance alone when evaluating whether to continue the suspension of sanctions.

“The spirit of the deal”

There is still some rhetorical slipperiness afoot. For weeks, the White House has signaled that a central rationale for decertification will be Iran’s violation of “the spirit of the deal.” This phrase is frustratingly ambiguous.

But here, too, the president has a point. In recent months, Iran has repeatedly conducted ballistic missile tests in defiance of the very same U.N. Security Council resolution that implemented the Iran deal, or Joint Comprehensive Plan of Action (JCPOA). Iran is specifically “called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology.” Crucially, the same resolution explicitly states that the parties’ “participation in the JCPOA is contingent upon the United Nations Security Council … requir[ing] States to comply with the provisions in this statement.” So in a sense, restrictions on Iranian ballistic missile activity are an element of the deal.

Yet, the same resolution noticeably (and inexcusably) avoids binding legal language for these restrictions. In contrast to other provisions which are “decided” by the Security Council under Article 41, the missile restrictions are simply issued as an exhortation. Moreover, Footnote 3 of the JCPOA’s Annex V explicitly warns that “[t]he provisions of this [Security Council] Resolution do not constitute provisions of this JCPOA.” So as a technical matter, the missile launches also seem to lie outside of the deal itself.

Hence the strange conclusion, shared by the White House (and interestingly, France): Iran may be “technically compliant,” but is not abiding by the agreement’s “spirit.” This also follows Trump’s corollary: ongoing sanctions relief is no longer in the U.S. national interest.

As should be clear, the administration’s verbal gymnastics are rooted in the diplomatic dance that went into the deal itself. The United States and its allies wished to retain ongoing restrictions on Iran’s ballistic missile activity as part of the deal. Iran adamantly refused. Where Western negotiators saw such activities as an illegal (under prior Security Council resolutions) and aggressive supplement to Iran’s nuclear program, Iran claimed that any such restrictions were themselves a form of punishment. Rather than resolving the issue, diplomats fudged it. The result gives the appearance of restraining Iran’s missile program, but without legal teeth. It does so in a way that ensures that both a bellicose Iran and compliance hawks can self-righteous condemn the other.

When combined with the “national interests” certification requirement — and of course, a singularly unpredictable president — this sort of ambiguity becomes radioactive. Sunday’s deadline also reveals a sad if unsurprising irony: Artful diplomacy may have facilitated the deal’s formation, but overly clever drafting may also lead to its unraveling.

The president has made his choice, and he must bear full responsibility. But decades of prior choices — particularly legislative and drafting choices — created the framework for Friday’s decision. Prior Congresses, presidents, and the public ought to recognize this. Blame, or credit, will be due.

Photo credit: Brendan Smialowski/AFP/Getty Images 


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Author: warfareweb

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