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A Third Way

August 25, 2015

The decision about the proposed Joint Comprehensive Plan of Action (JCPOA) does not have to be a binary choice, either accepting the nuclear deal as-is or rejecting it out of hand. Thoughtful commentators, aware of both the potential benefits and the potential risks of the deal, have proposed other courses of action.

Many have suggested renegotiating the deal. Reject the proposed JCPOA, say some critics, and go back to the Iranians with our P5+1 partners to get “a better deal.” Senator Chuck Schumer (D-NY), in stating his opposition to the agreement, proposes to “keep U.S. sanctions in place, strengthen them, enforce secondary sanctions on other nations, and pursue the hard-trodden path of diplomacy once more, difficult as it may be.”

Senator Robert Menendez (D-NJ), announcing his intent to vote against the agreement, went beyond the general idea to offer “specific parameters for the Administration to guide their continued negotiations and ensure that a new agreement does not run afoul of Congress.” Sen. Menendez listed as these parameters: Iran ratifying the Additional Protocol for inspections, banning research and development on advanced centrifuges, closing the underground enrichment facility at Fordow, resolving questions about the “possible military dimensions” of Iran’s program, extending the term of the agreement beyond the current 10-15 years, and strengthening penalties for Iranian violations. These are all highly desirable provisions, if Iran can be coaxed back to the negotiations and convinced to agree to them.

But Secretary of State John Kerry called the idea of negotiating a better deal “a unicorn fantasy.” Many agree with him that we cannot roll back the clock or pick up where we left off on July 14, 2015. If our skilled and experienced negotiators could not get the Islamic Republic to agree to these conditions during the negotiations in Lausanne and Vienna, why would they agree to them now? If anything, the Iranian position is stronger now, given the domestic, regional, and international perception that they achieved an upper hand in the deal, and with the international sanctions already starting to fray.

Legal expert Orde Kittrie has proposed a more pragmatic alternative: Congress should attach to a resolution of disapproval specific changes it requires in order to accept the agreement. The Senate, explains Prof. Kittrie, has this explicit authority, and has required changes to in hundreds of previous treaties, including multilateral ones. Since this agreement is not a formal treaty or binding international law, and Congress already has the power to accept or reject it under the Iran Nuclear Agreement Review Act, making approval conditional would be even more straightforward.

Alan Dershowitz, a fierce critic of the nuclear agreement (though otherwise a supporter of President Obama) has suggested a different approach. Whether the JCPOA is approved or rejected, says Prof. Dershowitz, “Congress should pass legislation enshrining the deal’s preamble and the reaffirmation of an eternal ban on nuclear weapons as an integral part of the agreement”—along with legislation that “would preemptively authorize the current and all future US presidents to use military force, without negotiation or warning, to prevent Iran from acquiring a military weapon if it ever sought one.” The goal, according to Dershowitz, is to “underline the centrality to the deal of Iran’s reaffirmation never to acquire nuclear weapons” and to “provide both a deterrent against Iran violating its reaffirmation and an enforcement authorization in the event it does.” (Other foreign-policy and defense experts, including some former Obama administration officials, agree on the need for credible deterrents, both military and economic.)

Middle East expert Robert Satloff, writing at The Atlantic, proposes a different strategy: Congress should reject the deal, but only temporarily, buying time to address its flaws. Satloff argues, convincingly, that the Islamic Republic will not walk away from a deal that gives it so much, but rather will still abide by its initial obligations under the agreement. This process will take six to nine months, during which the U.S. can put in place new legislative and regulatory mechanisms to address the deal’s shortcomings—outside the scope of the JCPOA and without having to modify or renegotiate the agreement. These include strengthening the consequences of violations, deterrence of and push-back against Iran’s regional aggression, a credible declaration that the U.S. will prevent Iranian nuclear-weapons capacity “by all means necessary,” and supplying deterrent weapons to Israel. Once Iran has met its commitments and the U.S. has implemented these complements to the JCPOA (ideally with support from our European partners), Congress can revisit and approve the deal, and still meet the timetable for lifting sanctions. Satloff concludes that “while the option of voting no to compel the administration to improve the deal may have risks, those short-term risks are likely to be less severe than beginning a long-term arrangement knowing that it is already deeply flawed.”

One does not have to be a “warmonger” to be uneasy with the JCPOA as it stands. And one does not have to believe in unicorns to think that it can and should be changed. Whether Iran can be persuaded to return to negotiations, or Congress attaches conditions to make the agreement acceptable, or passes supplemental legislation to give it “teeth”—there are, in fact, viable alternatives to accepting the deeply flawed deal.


This article was also published on the Times of Israel, August 27, 2015

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