September 2, 2015
Details of the nuclear talks between Iran and the five permanent members of the Security Council plus Germany have been made public thanks to Abbas Araghchi, an Iranian deputy nuclear negotiator - much to Araghchi's dismay. The website of the Islamic Republic of Iran Broadcasting, or IRIB, accidentally published the minutes of an off-the-record briefing with Araghchi on Aug. 5. The transcript was removed within hours after Araghchi voiced his anger, but the damage had been done.
Araghchi's briefing was meant exclusively for the senior management of the IRIB, the Islamic Republic's state television broadcaster and a major propaganda tool. The head of the IRIB is always appointed by the Supreme Leader, and its management is selected from senior employees of either the Islamic Revolutionary Guard Corps or the Ministry of Intelligence. Former IRIB heads have included high-ranking Revolutionary Guard officers such as Ali Larijani and Ezatollah Zarghami. IRIB management are culled from the exclusive club of ruling elite and from their underlings in the Islamic Republic. Members of this club do not generally change; they simply move from one position to another. Therefore, it is difficult to imagine that Araghchi would falsify facts to people ultimately responsible for implementing the terms of the Iran deal and its secret side agreements.
The points made by Araghchi strongly validate the considered judgment held by a majority in the U.S. Congress: that the Joint Comprehensive Plan of Action - the agreement reached between Iran and the P5+1 - is not in the national security interests of the United States and should not be approved. While U.S. President Barack Obama's plan to implement the JCPOA using his own executive authority appears to be succeeding, his plan may yet be undone. Supreme Leader Ali Khamenei may decide that he should not stain his legacy of advancing the Islamic Revolution by endorsing a nuclear deal claimed by the leader of the so-called Great Satan as his signature foreign policy achievement.
Iranian Nuclear Program Certified in its Entirety. Critics of the nuclear deal point out that the stated purpose of negotiations with Iran was to dismantle all or significant parts of Iran's illicit nuclear infrastructure to ensure it would not possess a nuclear weapons capability at any time. Yet the JCPOA requires no dismantling of Iran's nuclear infrastructure and in fact commits the international community to helping Iran develop an industrial-scale nuclear power program, including industrial-scale enrichment. Confirming this is Araghchi's statement that U.S. Secretary of State Kerry agreed not only to give Iran the right to enrich and move its nuclear program forward, but also to grant official recognition of even the commercial and industrial aspects of the program. Araghchi said this means that the Iranian nuclear program has been certified in its entirety.
Araghchi expanded on this point by quoting Russian Deputy Foreign Minister Sergei Rybakov, who headed the Russian negotiating team. Reportedly, Rybakov said:
"I was telling my associates last night that these Iranians are truly geniuses. They came to get a green light for their enrichment program from the Security Council in exchange for what? In exchange for their sanctions to be lifted. Not only do they not give anything in exchange, but they receive something in exchange for what they receive! Their sanctions will be lifted and their enrichment will continue."
Hollow Verification Inspections. There is now ample evidence to substantiate Rybakov's praise for his Iranian counterparts and to deepen congressional concerns about the flaws in the nuclear deal. Regarding Kerry's discussion of daily inspections of Iranian facilities, Araghchi made the following points, while noting that Kerry needed to be given some latitude by the Iranian regime to exaggerate the effectiveness of the inspections arrangements:
"Even before the Geneva agreement, the inspectors were in our sites four to five times a week. Therefore, we have no problems with inspections. Now in Natanz, they can not only stay there for 24 hours, but they may even sleep there if they so wish. In Natanz, there is nothing to be found so we have no problems with that. Mr. Kerry has to after all say something and aggrandize to be able to resist the pressures in Congress and to be able to confront the Zionists and the Zionist lobby. Therefore, we should not aggrandize things that he is aggrandizing in America because the American party's behavior is indicative of his frantic attempt to pass the deal in Congress."
Secret Side Agreements on PMD and Parchin. There is good reason for Araghchi not to publicly challenge Kerry's assertions about so-called unprecedented inspections, and Araghchi himself clearly is not concerned about the inspections. Just before the JCPOA was announced on July 14, Iran and the International Atomic Energy Agency signed a roadmap to resolve long-term concerns about the possible military dimensions of Iran's nuclear program. The joint roadmap contains the two secret side agreements to which the U.S. government has no access. One of the agreements is supposed to resolve the IAEA's concerns over possible military dimensions, and the other presumably is meant to address nuclear weapons research at Iran's Parchin military complex. According to an exclusive Associated Press report on Aug. 19, under the provisions of this secret side agreement Iran will be allowed to use its own inspectors to investigate the Parchin site. This revelation obviously undercuts the credibility of the so-called precedent-setting verification inspections touted by Obama and Kerry. The full text of this side agreement ishere.
Further, a former deputy director of the IAEA, in a report to the Iran Task Force, notes that the procedures in the Parchin side deal depart significantly from well-established safeguard practices and that historically the IAEA has not viewed such issues as confidential.
Araghchi explained how Iran will manage the outcomes of the side agreements as follows:
"In the new round of talks, I told our friends at the Ministry of Defense that I vow to you that not one more word than the information that has already been given to the IAEA will be conveyed to them. The story of Parchin is one of 12 fabricated cases against Iran and the Westerners vehemently insisted that the PMD issue must be resolved. (They said) this file cannot remain open while we lift the sanctions. Before the implementation of the deal, we need to answer certain questions that the IAEA has for us. As far as the deal is concerned, these issues have been resolved, but there remain issues between us and the IAEA before it can finalize its report. That report will be gray. It will neither be black nor white. With regards to this issue, a roadmap has been signed by Mr. Salehi and Mr. Amano based on which, for example,we will present some of our own assessments on PMD by Aug. 15 and the IAEA will review them by Oct. 15, and that will conclude the task of the IAEA. We have no further problems as far as the deal is concerned, but by Dec. 15, Amano will present the final assessment and we have made some precautionary arrangements to hold off on certain things we need to do until the IAEA presents its final report. Meaning this will cause the Westerners themselves to pressure the IAEA to wrap up the case as soon as possible so that the deal could be implemented."
It is particularly noteworthy that Araghchi, in stark contrast to the U.S. view, has repeatedly asserted that the side agreements in the IAEA roadmap are not part of the JCPOA and therefore not subject to international review.
PMD is a Mere Formality. In short, Araghchi let us know that the IAEA has already decided it will not reveal any new discoveries in its ambiguous report; it will neither entirely confirm nor deny any past military nuclear activities in suspect sites such as Parchin. He also notes that the IAEA will review the Islamic Republic's own assessment of possible military dimensions and implies that the entire process is nothing more than a formality. Furthermore, he sees circumstances as supporting Iran's strategy, because the IAEA will be under pressure from Western countries eager to wrap up the deal so that they may exploit the Iranian market. Araghchi's statements make it clear that inspections as detailed in the secret side agreements involve nothing more than the Islamic Republic's voluntarily submission of redundant and useless information to the IAEA: "To friends who ask us, I respond that we don't trust the IAEA, nor the inspectors and nor the Westerners ... we trust in ourselves."
Araghchi goes on to explain how Iran could handle the 24-day process triggered if the IAEA suspect activities in non-nuclear facilities: "The IAEA has to present us with evidence as to why it thinks there have been illegal activities occurring. After this step, we need to negotiate. Other countries do the same. After the negotiations, if we are convinced, we might allow them access. In cases where their evidence is not entirely unfounded, we can even use substitute methods; for example, we will say we cannot allow you into the main facility but we can allow you access to the area behind it. The other method is for us to videotape it ourselves and present it to them. But if the IAEA refuses our offers and insists on access, this subject has been left unsaid in the Additional Protocol."
In case of a dispute between the IAEA and the Islamic Republic, he explains that "other provisions" have been added to the JPCOA in order to avoid the usual IAEA process of reporting a denial of access to its Board of Governors and subsequently to the U.N. Security Council. "If Iran and the IAEA reach a dead end, the issue will be referred to a Joint Commission which will have seven to 14 days to clear the legal process ... This process takes 24 days. Of course, any access will be managed by us, meaning in the same blindfolded manner that I had explained before and some had made fun of. But this is really not silly. This has happened before. We can take them in blindfolded."
Fallacious "Snapback" Sanctions. Obama has said that if Iran violates the nuclear deal, all of the sanctions can snap back into place and we will not need the support of other members of the U.N. Security Council. The United States, he claims, can trigger these snapback sanctions on its own. But paragraph 37 of the JCPOA makes clear that the provisions of the U.N. Security Council resolutions would be reimposed "unless the U.N. Security Council decides otherwise," and it even goes on to insulate established contracts with Iran from whatever snapback sanctions are imposed. Knowing that any contracts entered into with Iran by foreign companies could survive so-called snapback sanctions even when Iran is caught cheating, the Obama administration has sent letters to the governments of China, Germany, France and Britain assuring them that companies doing business with Iran will not be penalized if Iran violates the JCPOA. Senators Mark Kirk and Marco Rubio are demanding that the Obama administration release the contents of these letters - contents that are currently undisclosed - to the American public.
Dropping Arms and Missile Sanctions from the Deal. Perhaps one of the most disturbing aspects of the nuclear negotiations is Obama's apparent complicity in dropping arms restrictions, including an embargo and missile sanctions, from the nuclear deal. The Iranian side made clear that it would not stop arming Hezbollah, and the president knew that he could not defend the deal before U.S. allies and the Congress without these sanctions. The solution: Kerry proposed relaxing the arms and missile sanctions and putting them in the U.N. resolution. By separating these sanctions from the nuclear deal, Obama and Kerry acknowledged that breaking the arms and missile sanctions would not break the nuclear deal. Problem solved! As Araghchi explained in his off-the-record briefing: "Maybe you will find it interesting that Mr. Kerry repeated this sentence on several occasions: You are the victims of your own successes in the region. When you have these kinds of successes in Yemen, Syria, Iraq and Lebanon and you have this kind of influence and if we lift the arms sanctions under these circumstances, we will effectively kill the deal. We can no longer defend this deal against our own allies, Israel and the Arabs, nor at the U.S. Congress. Meaning there will never be a deal.
"In the first days of the negotiations they expressed their readiness to immediately lift all financial and economic sanctions but that it was not possible to remove the arms embargo immediately. Hence, we responded that we will have no agreement at all if you cannot lift the arms embargo. We said we cannot deny arms to Hezbollah and we are not willing to sacrifice them for our nuclear program. Therefore, if you wish to keep the arms embargo as part of the deal, we will continue with our work. We had endless discussions over this issue ... But at the end they themselves came and said that we will separate the agreement from the resolution. We will include the arms and missiles sanctions in the resolution so that breaking it would not be considered as breaking the agreement. The senior member of our negotiating team said the key to finalizing the deal was the separation of the agreement."
Will Iranian Supreme Leader Ali Khamenei save Obama's JCPOA? In the course of his off-the-record briefing, Araghchi also noted that he believes it is not in Iran's benefit for the Iranian parliament, the Majlis, to ratify the nuclear deal because there is a "series of voluntary actions in the JCPOA that will turn into obligations should the Majlis approves the deal." This observation highlights a much broader set of concerns about the nature of the nuclear deal itself and whether Obama indeed will succeed in his plan to implement the JCPOA under his own authority.
Both Washington and Tehran have acknowledged that the JCPOA is not a legally binding international agreement. It is not a treaty. It is not even an executive agreement; it has no signatories. As The Washington Institute has correctly pointed out, it is nothing more than a set of voluntary understandings entered into by eight parties - Iran, the United States, Britain, France, Germany, the European Union, Russia, and China. Consequently, Obama is not required to obtain Congressional approval of the JCPOA. The President's strategy to keep the U.S. public and Congress in the dark and to minimize any possible congressional interference appears to have succeeded. He has entered into a non-binding arrangement without the approval of Congress - an arrangement that clears the way for him to use his discretionary statutory power to suspend sanctions as part of the U.S. implementation of the deal.
No American president has ever entered into a long-term arms control agreement on his own authority. Confronting this unusual set of circumstances, Congress passed the Iran Nuclear Agreement Review Act of 2015. The provisions of the statute call for the Senate and the House to vote on resolutions to either approve or disapprove the JCPOA. Obama, however, retains his veto authority over the resolutions, and overriding a presidential veto requires a two-thirds majority in both houses of Congress. Hence, while a majority of Senators and House members will vote against the nuclear deal, it is quite unlikely that Congress can halt the president's implementation of the JCPOA.
Further complicating the situation was the President's decision to quickly seek a U.N. resolution approving the JCPOA before Congress completes its review and votes on Sept. 17. President Obama used the resolution of approval as a means to make the JCPOA, a non-binding set of political commitments, the basis for a legally binding U.N. Security Council Resolution. In this way, President Obama's plan succeeded in not only avoiding Congress, but also in sanctifying the JCPOA as international law through a U.N. Security Council resolution.
The very clever political maneuvering by the White House has entangled the U.S. government in a web of interlocking multilateral political commitments contained in the JCPOA, the secret IAEA side agreements, and a legally-binding U.N. resolution. In spite of the efforts of Congress, Obama's strategy to conclude and implement the JCPOA under his own authority is likely to prevail. Only one event could derail his game plan: a decision by Iran's Supreme Leader, Ayatollah Ali Khamenei, to turn down the nuclear deal.Thus far, Khamenei has managed to evade direct responsibility for the nuclear deal and the Iran-IAEA roadmap. He has not taken a public position. Khamenei's Majlis and the Supreme National Security Council will consider the nuclear arrangement in the coming days, and at some point, Khamenei will decide whether to implement.
The grand irony of the circumstances engineered by Obama is that the American president has put Ayatollah Khamenei, Supreme Leader of the Islamic Revolution, in the position of endorsing Obama's signature foreign policy achievement. By approving the nuclear deal, Khamenei would be seen by his fellow revolutionaries as embracing the Islamic Republic's implacable foe, while a majority of Obama's own legislature repudiates the JCPOA. One would think that such a decision would shake the very ideological foundation of the 1979 Islamic Revolution to which Khamenei and his radical followers are devoted. Hence, there may still be hope for the majority in the U.S. Congress who oppose the fatally flawed nuclear deal: Perhaps the Supreme Leader will decide that he cannot turn his back on the Islamic Revolution by implementing the JCPOA.
Amir Abbas Fakhravar, (Siavash) is an Iranian dissident, award winning writer, and the recipient of the prestigious Annie Taylor Journalism Award. Currently, he is an adjunct professor at the Texas State University who teaches Comparative Constitutional Law, Political Crimes and International Crimes. Fakhravar has testified before the Senate Homeland Security Committee and the House Foreign Affairs Committee on U.S.-Iran relations, U.S. government broadcasting to Iran, and Iranian nuclear issues.
G. William Heiser is a former Reagan administration official who served as Arms Control Director on the National Security Council Staff and currently is an adviser to the Iranian Freedom Institute and the Confederation of Iranian Students.
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