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A Bad Deal

July 25, 2015

So much has been said and written about the Vienna agreement—the Joint Comprehensive Plan of Action (JCPOA) between six world powers and Iran to curb the Islamic Republic’s nuclear project—that I hesitated to add to the torrent of words and bytes. But enough people have asked for my thoughts that I decided to write up and share my analysis of the deal’s flaws and shortcomings.

I’ll start with some disclaimers. There has been too much hysteria, too much spin on both sides of the debate. Reasonable, thoughtful people who look out for U.S. interests are divided on this one. There are smart, pro-America people who think it’s a good deal. There are also smart, pro-America people who think it’s a bad deal. There are valid, rational arguments on both sides. Supporting the agreement doesn’t mean that you’re an “appeaser,” and opposing it doesn’t make you a “warmonger.” Not everybody whose viewpoint is different from yours is, automatically and by definition, stupid or ill-intentioned. This is a policy debate, not a personal disagreement. We all share the objective of preventing Iran from obtaining nuclear weapons, making the Middle East (and the world) safer, and reducing the chances of a military conflict. We all see in the deal both potential benefits and potential risks, though we may differ in our evaluation of their relative magnitudes and probabilities. So please, let us tone down the rhetoric, refrain from inflammatory language and ad-hominem attacks, and focus our attention (and endorsements or critiques) on the agreement itself. This is a serious issue that deserves serious consideration by serious people, beyond the sound bites and talking points.

In similar vein, it is possible to oppose this deal without being (a) a Republican partisan, (b) a Netanyahu stooge; or (c) an advocate for war. While Republicans are fairly united against the agreement, many prominent Democratic leaders reject it as well, and others (including, hopefully, some who are reading this now) remain undecided and open-minded. Vocal critics in Israel include not only members of Netanyahu’s government but also leading opposition figures.

The argument that “If you disapprove of the agreement you are clamoring for war,” or “It’s this deal or war,” is such a trivial straw-man that it would be laughable if this were not such a grave matter. In a underhanded effort to support this dubious argument, partisan pollsters ask leading questions on whether respondents would prefer “diplomacy or war” or whether they support “a peaceful resolution” of the Iranian nuclear pursuit. Of course large majorities—including those, like me, who think this is a bad deal—prefer “diplomacy” and a “peaceful resolution”— while disapproving of this specific version. There are many, many other options, a plethora of diplomatic and economic tools available to the U.S. and the international community, to curb the mullahs’ nuclear ambitions—short of bombing Iran. (More on these options in a future post.)

With these caveats out of the way, we turn back to our featured analysis: While the agreement includes important benefits, I fall squarely on “bad deal” side of the debate. After closely reading the full text of the JCPOA and thousands of pages (er, screenfuls) of analysis and commentary, I have summarized here its main flaws and risks. I have also included links to other sources that elaborate on each of these points (with the obvious caveat that I don’t necessarily endorse or agree with everything written in these external references); the “§” symbol refers to sections of the JCPOA text itself.

The key problems with the agreement are the weak inspections; front-loaded, unconditional, and effectively irreversible sanctions relief; legitimization and endorsement of Iran’s nuclear program; and its limited duration, virtually guaranteeing Iran’s status as a threshold nuclear state after a decade. There are also a long list of issues that the agreement does not address, problems with its legitimacy and implementation, and the question of who is actually strengthened or empowered by this deal.

I. The Inspections Are Weak

Originally envisioned as a deal to roll back international sanctions in return for rolling back the Iranian nuclear program, the agreement became instead, over the course of the months-long negotiations, a framework for rolling back sanctions in return for transparency on Iran’s nuclear pursuit. Therefore, the effectiveness of the entire effort, and even its basic validity, hinge on the robustness of the verification and monitoring regime it creates. Unfortunately, these mechanisms fall short in multiple ways.

1. Inspections don’t account for previous illicit nuclear activities. Iran was supposed to disclose its prior weaponization work, the so-called “possible military dimensions” (PMD). This requirement was not intended as to be a “mea culpa” on Iran’s past violations, but to provide a baseline for future inspections and verification by the International Atomic Energy Agency (IAEA). This provision is significantly watered down in the final JCPOA. The agreement (§14 & Annex I, §M) refers to the IAEA’s Roadmap for Clarification of Past and Present Outstanding Issues. In this Roadmap, Iran commits to discussing the “outstanding issues” with the IAEA, but not to actually resolving them to the IAEA’s satisfaction. There are no consequences for further stalling or incomplete answers; even if the IAEA reports that its concerns remain unanswered, the deal goes ahead. This guts the essence of verification: Without knowing what the Iranians have previously done and where, it is essentially impossible to confirm that they have stopped doing whatever it was they were not supposed to be doing in the first place.

2. Inspections may not really ensure a one-year “breakout time.” The purpose of the inspections is to ensure that Iran remains at least a year away from “breakout,” i.e., acquiring enough fissile material for a single nuclear bomb. This, the assumption is, long enough for the world powers to detect, react to, and stop the prohibited activities before Iran actually gets a nuclear weapon. But some experts have warned of a “creep-out” scenario in which Iran exceeds the agreed-upon limit on its stockpile of enriched uranium, and/or reactivates centrifuges “mothballed” but not dismantled under the JCPOA, under the inspections’ radar. Whatever the mechanism, the one-year breakout time may be an overly optimistic assumption.

3. Iran participates in the inspections decisions. Rather than being determined only by the IAEA and the international community, Iran will have a say on when and where nuclear inspectors are allowed to go (Joint Commission; Preamble §ix; §24, §36, §78; Annex IV §1, §4).

4. Military sites appear to be off-limits to inspectors. Two weeks after the JCPOA announcement, a top adviser to Supreme Leader Ali Khamenei said in an interview to Al-Jazeera: “Regardless of how the P5+1 countries interpret the nuclear agreement, their entry into our military sites is absolutely forbidden. The entry of any foreigner, including IAEA inspectors or any other inspector, to the sensitive military sites of the Islamic Republic is forbidden, no matter what.”

5. Iran controls access. One report claims that a classified side agreement includes the provision that “the IAEA will rely on Iran to collect samples [for testing] at its Parchin military base and other locations.” As Sen. Bob Menendez (D-NJ) said in a Senate Foreign Relations Committee hearing, “If that is true, it would be the equivalent of the fox guarding the chicken coop.”

6. Inspections may require disclosing confidential information. If the IAEA suspects Iranian cheating, it can “request clarification,” but must disclose the “basis” for such concern (Annex I §Q.75-76)—potentially compromising sensitive intelligence sources.

7. Inspections have long lead times. The JCPOA outlines a lengthy and cumbersome procedure for the IAEA to obtain access to suspected “undeclared” (i.e., clandestine) nuclear facilities. There are no “anytime, anywhere” inspections as originally envisioned; rather, Iran can block inspections for weeks at a time. The agreement provides for a 24-day process to request and receive access to suspect sites §74-78). In practice the lead time may be much longer, three months or moreplenty of time for Iran to hide, move, dismantle, destroy, re-purpose, obscure, or even pave over the intended inspections target.

8. Inspections may be incomplete. Iran postpones by up to eight years implementation of the Additional Protocol, which grants the IAEA authority to verify Iran’s nuclear safeguards (§34.iv, Annex V §22 p. 158)—and even that is not a binding requirement: Iran will “provisionally apply” (§13) and will “seek ratification” (§34.iv) of the Protocol. In any case, the Additional Protocol does not grant access to undeclared sites. It was Iran’s failure to abide by the Protocol that led to the first UN sanctions against Iran, in 2006.

II. Sanctions Relief Is Prompt, Broad, and Effectively Irreversible

The clear benefit to Iran in the agreement is the lifting of all international sanctions imposed by the European Union (§19), the U.S. (§21-24 & Annex II), and state and local jurisdictions (§25).

1. Iran receives a short-term bonanza: a “signing bonus” of at least $100 billion in frozen assets and oil revenues—more than a third of its gross domestic product (GDP)—that it can use to strengthen the regime, oppress dissidents and minorities, prop up Assad in Syria, support terrorism, foment instability in the region, and, potentially, continue to clandestinely advance its nuclear program.

2. Iran’s financial benefits are front-loaded, while its obligations are weighted to later years, gives a strong incentive to cheat, or even renege on the deal and walk away.

3. There is no real “snap-back” mechanism. The much-ballyhooed “snap-back” would take 65 days to implement (§36-37). But more importantly, the JCPOA clearly states that Iran sees any re-introduction or re-imposition of sanctions that have been lifted, or “imposition of new nuclear-related sanctions, as grounds to cease performing its commitments under this JCPOA in whole or in part” (§26, §37; also Preamble §viii). In other words, the lifting of sanctions is a one-way street; any reversal or “snap-back,” and any new sanctions, will allow Iran to walk away from the deal altogether, having pocketed the relief it already received and its associated windfall—Iran’s “nuclear snap-back” option. Indeed, Iran’s envoy to the UN has already informed the UN Security Council that Iran would consider abrogating the agreement if it faces “continued application or the imposition of new sanctions with a nature and scope identical or similar to those that were in place prior to the implementation date, irrespective of whether such new sanctions are introduced on nuclear related or other grounds.”

4. Existing contracts are exempt from “snap-back.” In the unlikely event that sanctions are in fact re-instituted, a “grandfather clause” excludes from the re-imposed sanctions any contracts already signed (§37). This provision virtually guarantees a gold rush of international companies to finalize agreements for deals—real, potential, contemplated, or imaginary—as an insurance policy against Iran later backtracking on its JCPOA obligations and challenging the world powers to re-impose sanctions. The a mad dash to sign commercial contracts will further fill Iranian coffers with much-needed hard currency with which to continue its domestic repression and international mischief. And it will place powerful economic interests on the side of keeping the agreement in place even if Iran does not meet its obligations.

5. The deal does not include any remedies or penalties for minor violations; it’s an “all-or-nothing” proposition. As Robert Satloff of the Washington Institute points out, “there is only one penalty for any infraction, big or small—taking Iran to the UN Security Council for the ‘snapback’ of international sanctions. That is like saying that for any crime—whether a misdemeanor or a felony— the punishment is the death penalty. In the real world, that means there will be no punishments for anything less than a capital crime.” Actually, in the real real world, Iran will get an opportunity to walk away from its commitments (see above) after pocketing all the up-front concessions, sanctions relief, and “grandfathered” contracts exempt from any new sanctions.

6. The U.S. and its allies cannot even impose new non-nuclear sanctions. The JCPOA commits them to “refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran” (§29). And Iran has already said that it would consider any new sanctions, nuclear or non-nuclear, as grounds for walking away from the entire agreement (see II.3. above). This means that the U.S. has no recourse, short of military action, if Iran blows up a community center, or assassinates an ambassador—not fanciful or imaginary scenarios. The JCPOA is the end of the line for diplomacy, and effectively prevents any economic incentives or pressure, leaving only a military option as a way to address any future Iranian bad behavior in any area.

7. Sanctions relief goes beyond Iran’s nuclear program. The agreement lifts restrictions on institutions and businesses affiliated with the Execution of Imam Khomeini’s Order, sanctioned in 2013 for fraud, theft, exploitation of Iranian citizens and confiscation of private property, and other financial and human-rights abuses. It removes from the sanctions list Iranian Revolutionary Guards Corps Quds Force commander Maj.-Gen. Qasem Soleimani (Annex II, Attachment 3, p. 94), a man responsible for numerous American deaths in Iraq. Also to be absolved is Gerhard Wisser, a German engineer convicted in South Africa of involvement in illicit trading of nuclear technology.

III. Iran Is Allowed to Re-Arm

1. Iran is allowed to import and export conventional weapons after five years. Canceling the UN Security Council resolutions (§18) lifts the international arms embargo on Iran, including restrictions on sales of conventional weapons. Indeed, Iran has already declared that it has not accepted and will not respect any restrictions on its military capabilities, and will continue arming its allies in the region. So Iran can, and intends to, purchase weapons—and potentially use them against American allies.

2. Iran is allowed to develop or import ballistic missiles after no more than eight years. The restrictions on ballistic missiles—a technology “that has no reason to exist outside of a nuclear weapons program”—are lifted (§18) when UN Security Council Resolution 1929 is canceled. Once the embargo ends, Iran will be able to develop or import intercontinental ballistic missiles (ICBMs) that can be used to attack the United States. Even for the first 8 years, restrictions on Iranian ballistic missiles have become voluntary and non-binding, as Iranian Foreign Minister Mohammad Javad Zarif has boasted. The now-defunct UN Security Council Resolution 1929 said “Iran shall not undertake any activity related to ballistic missiles” (p. 5) while its replacement, Resolution 2231, uses the wording “Iran is called upon not to undertake any activity related to ballistic missiles” (p. 99, emphasis added).

3. Lifting the embargo is not dependent on Iranian compliance; the restrictions go away regardless of Iranian performance or behavior (Annex II, p. 55 & §5, p. 56; Annex V, §20, p. 157).

IV. The Agreement Retroactively Legitimizes Irans Illegal Behavior

1. The international community implicitly concedes Iran’s “right to enrich” uranium (Preface, p. 1; §1; Annex I, §F.27-28, §I.52, §J), outside of the parameters of the Nuclear Non-Proliferation Treaty (NPT).

2. The agreement erases previous resolutions regarding Iranian violations. Along with its subsequent endorsement by the UN Security Council, the deal nullifies all previous international resolutions and references to the program’s illegality. It dismisses Iran’s prior violations of its obligations under the NPT (§18, p. 11; Annex V §18, p. 157). This launders Iran’s previous noncompliance and confers retroactive legitimacy on its once-illicit nuclear pursuits.

3. Iran keeps all of its nuclear infrastructure. The agreement does not require Iran to dismantle any of its nuclear installations. It keeps Natanz with 5,060 centrifuges (§2, §27), Arak (§8), the underground bunker facility at Fordow (§6), the uranium conversion facility in Isfahan (§68), the research center in Tehran (§40), and the military installation at Parchin. (The Parchin site is not even mentioned in the agreement, nor is the nuclear power plant at Bushehr.) 14,300 additional centrifuges will not be destroyed or shipped out of the country; they will be stored under IAEA supervision (§2, §29, §48, §62) and available as backup for the operating ones (§29, §49).

4. Iran is allowed to continue research and development on enrichment, within certain parameters (Annex I §G.32). It is also allowed to continue research and development on advanced centrifuges, including design (§3, Annex I §G.43) and testing (Annex I §G.36-42). After eight years, it can manufacture these advanced centrifuges (§4, Annex I §K.63). When the restrictions on Iran’s enrichment activities expire in 10 years, Iran will be able to quickly enrich and stockpile large quantities of weapons-grade uranium. After 15 years, it will be able to test centrifuges anywhere in the country (§40).

5. There are no significant consequences to Iran from decades of violating international agreements and flaunting UN Security Council resolutions. This makes a mockery of the Nuclear Non-Proliferation Treaty and the entire system of international law. If an outlaw state can thumb its nose at the international community and not only get away with it but be retroactively rewarded and legitimized, the foundation for our international system has a credibility crisis—not to mention enforcement problem. Is Iran expecting that violations of its obligations under this JCPOA will be similarly retroactively erased or blessed?

V. The U.S. and Its Allies Commit to Strengthen Irans Nuclear Program

1. The U.S. and its allies will supply nuclear technology to Iran (Preamble, §xiii, p. 5, and Annex III). Iran will receive international support for its civilian nuclear program, including nuclear fusion, power plants, safety and security (§32), construction and modernization at the Arak reactor (Annex I §T.82, “Fundamental Principles,” 10th bullet point, p. 47; Annex III §B.5). The P5+1 and European Union (referred to in the JCPOA as the “E3/EU+3 parties”) will provide Iran with light-water reactors, including supplying “state-of-the-art instrumentation and control systems” and jointly developing “nuclear simulation and calculation codes and software solutions,” training, joint technical reviews (Annex III §B.4), and fuel supply (Annex III §B.6). Iran will receive assistance in nuclear waste disposal and facility decontamination (Annex III §F.12-13). The parties “will seek cooperation and scientific exchange in the field of nuclear science and technology” (Annex III §C.7)—in other words, transferring nuclear technology and know-how from Western powers to the Islamic Republic.

2. The U.S. and its allies will help Iran protect its nuclear program. The E3/EU+3 parties commit “to strengthen Iran’s ability to protect against, and respond to nuclear security threats, including sabotage, as well as to enable effective and sustainable nuclear security and physical protection systems” (Annex III §D.10). This may require the U.S. to defend Iran against attacks (including cyber-attacks) by Israel, Saudi Arabia, or Iranian dissidents against Iranian nuclear facilities. (For the record, Secretary Kerry says that this is incorrect.)

VI. The Agreement Does Not Last Long Enough

1. UN Security Council supervision ends after 10 years (Preamble, §xiv; §35.v).

2. Most restrictions expire after 10 years, including limits on centrifuge numbers and types (§27, §32, §35, §36, §39) and R&D on advanced centrifuges (§43, §81). Enrichment levels are capped for 15 years (§28).

3. The “sunset” timetable does not depend on Iranian compliance or behavior, only the passage of time. Whatever the Islamic Republic does or does not do during the term of the agreement, and regardless of any violations, most of its significant obligations and restrictions end after 8, 10, or 15 years.

4. Iran will be a threshold nuclear-weapons power in less than 15 years. Even in the best possible case—assuming that Iran does not cheat, and that it fully complies with the letter and spirit of the agreement—the JCPOA only kicks the can down the road for ten to fifteen years. At that time, Iran will have all the capabilities to develop nuclear weapons—endorsed, funded, armed, and supported by the international community.

VII. The Agreement Is Missing Critical Elements

1. The deal does not address Iran’s human-rights violations. It includes no mention or consequences for Iran’s horrific record of executions, jailing of journalists, persecution of ethnic and religious minorities, criminalization of homosexuality, or gender discrimination.

2. The deal does not require the release of Americans detained by Iran. Iran is holding four American citizens: former U.S. Marine Amir Hekmati, Christian pastor Saeed Abedini, former FBI agent Robert Levinson, and Washington Post journalist Jason Rezaian. President Obama has called on Iran to release the detainees, but the JCPOA does not include any such requirement.

3. The deal does not address Iran’s support for terrorism worldwide, including bombing U.S. embassies in Africa, blowing up a Jewish community center in Buenos Aires, attempting to assassinate a Saudi ambassador on U.S. soil and an Israeli ambassador in Kenya, and a bombing in Delhi.

4. The deal does not address Iran’s regional aggression and expansionism, including its support for the genocidal regime of Bashar al-Assad in Syria, and its proxies the Shi’a militias in Iraq, Houthi rebels in Yemen, Hezbollah in Lebanon, and Hamas and Palestinian Islamic Jihad in Gaza. Iran has also supported the Taliban and Afghan insurgents and Al Qaeda in Syria. In fact, Ayatollah Khamenei said after the deal was announced that “Iran would continue to support its allies in the Middle East.”

5. The deal does not address anti-American incitement. It does not say anything about the state-sanctioned hate-education, including chants of “Death to America” and threats to annihilate Israel.

Note: The standard response to these issues is that the JCPOA is intended to address only the Iranian nuclear program, not any of these other issues. But in fact it gives Iran substantial benefits in areas not directly related to its nuclear activities (see sections II.6, II.7, and II.8 above), making non-nuclear concessions to Iran but no non-nuclear demands of it.

VIII. The Agreement Undermines American Sovereignty and the U.S. Constitution

The process by which the JCPOA was approved undermines American sovereignty and the U.S. Constitution, as well as its legitimacy and enforceability.

1. The Iranian parliament has veto power—while the U.S. Congress or any other legislative body do not—in the form of a requirement to ratify the Additional Protocol (§8, §13, §34.iv, §64).

2. The agreement preempts and circumvents Congressional review and the approval process created by the Iran Nuclear Agreement Review Act passed in May (98-1 in the Senate and 415-0 in the House) and signed into law by President Obama. Senators Bob Corker and Ben Cardin, respectively chairman of and ranking Democrat on the Foreign Relations Committee,  asked President Obama to postpone UN considerationof the agreement until Congress can review it and potentially vote on its own assessment. House Democratic Whip Steny Hoyer made a similar statement. But the UN Security Council vote went ahead on July 20, and the resolution endorsing the agreement passed unanimously.

3. The agreement has questionable legitimacy and longevity in the American legal system.

  • It is not a binding international treaty, which would override U.S. law (and therefore requires ratification by a two-thirds majority in the Senate).
  • It is not U.S. law, subject to a vote in Congress (and which Congress can later vote to repeal or change).
  • Rather, it is an executive action by the President, and as such may be reversed or modified by a future president.
  • This constitutional limitation has already prompted Iran’s parliamentary speaker to accuse the U.S. of being “deceitful” and “untrustworthy.”


I have heard the argument that the deal “empowers the moderates” in Iran. But no one has yet explained to me how can giving such a huge windfall to the radical regime, with so few concessions on its part, empowers anyone but the ruling mullahs. If they are able to oppress their people, execute and jail dissidents, and enforce a reactionary theocracy while under the yoke of sanctions, how does this change once their coffers are filled? Where exactly is the benefit to the moderates, the dissidents, the human-rights activists, the opposition forces? On the contrary: The Khamenei-Rouhani leadership gets a huge economic benefit along with the diplomatic win, allowing them to consolidate domestic political power at the expense of the Iranian people and the broader Middle East.

Okay, so the deal suffers from dubious monitoring, weak enforcement, prompt and irreversible sanctions relief, and short duration. It legitimizes the Iranian nuclear program, allows the Islamic Republic to obtain lethal weapons and reach nuclear-weapon-threshold status, and empowers the mullahs. It’s missing crucial elements and raises implementation and legitimacy concerns. So it’s a bad deal, or at least not a very good one. But this analysis still leaves other, more difficult questions. Was a better deal possible? Even if it’s a bad one, is it still superior to the option of having no deal at all? What are the alternatives, and what might happen next if the agreement is rejected? I will turn to these questions in further posts.


Also published at The Times of Israel on August 2, 2015

As always, I look forward to your feedback: Please send me any comments, thoughts, additions, and rebuttals.

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