Australia / Israel Review

Mark Dubowitz

The Iran nuclear deal is a ticking time bomb. Its key provisions sunset too quickly, and it grants Iran too much leverage to engage in nuclear blackmail. To defuse it, the US Congress needs to do what it has done dozens of times in the past including during the Cold War in requiring changes to key US-Soviet arms control agreements: Demand a better deal. And contrary to US President Barack Obama’s threats, this doesn’t have to lead to war. 

First, let’s review why this deal is so dangerous. The sunset clauses – the fatal flaw of the agreement – permit critical nuclear, arms and ballistic missile restrictions to disappear over a five- to 15-year period. Teheran must simply abide by the agreement to soon emerge as a threshold nuclear power with an industrial-size enrichment program. Similarly, it must only hang tight to reach near-zero breakout time; find a clandestine sneak-out pathway powered by easier-to-hide advanced centrifuges; build an arsenal of intercontinental ballistic missiles; gain access to heavy weaponry like more sophisticated combat aircraft, attack helicopters, and battle tanks after the lifting of the UN conventional arms embargo after five years; and develop an economy increasingly immunised against future sanctions pressure.

Iran can achieve all this without even cheating by simply waiting for the sunset dates to be reached; but cheating will only get Teheran there faster – for example, if it refuses physical access by the International Atomic Energy Agency to suspicious sites and Washington can’t get European support to punish Iranian stonewalling.

And it gets worse. If world powers reimpose sanctions in response to Iranian noncompliance, Teheran can void the deal. The nuclear agreement explicitly contemplates in paragraphs 26 and 37 of the main text that Iran will walk away from the deal if sanctions are reimposed in response to an Iranian violation.

But even without this arrow in their quiver, the Iranians over time will be immunised from economic shocks. Once European companies are sufficiently invested in Iran’s lucrative markets, any Iranian violations of the deal are likely to provoke disagreements between Washington and its European allies. Indeed, why would Europe agree to new sanctions when they have big money on the line? Their arguments against new nuclear sanctions will include questions about the credibility of evidence, the seriousness of the nuclear infractions, the appropriate level of response, and likely Iranian retaliation.

The same dynamics apply to the reimposition of non-nuclear sanctions, such as terrorism or human rights sanctions. On July 20, Iran informed the UN Security Council that it may “reconsider its commitments” under the agreement if “new sanctions” are imposed “irrespective of whether such new sanctions are introduced on nuclear related or other grounds.” Would Europe agree to a US plan to reimpose terrorism sanctions on the Central Bank of Iran if it was found – once again – to be financing terrorism? This is doubtful, given that Teheran would threaten to return to its nuclear activities including large-scale uranium enrichment, putting not just European investments but the entire nuclear deal in jeopardy.

So, what’s the alternative? The President says there is none. He’s wrong. The US Congress can and should require the Administration to amend the agreement’s fatal flaws, such as the sunset clause and the nuclear snap back.

There is ample precedent to amend the deal. Congress has required amendments to more than 200 treaties before receiving Senate consent, including significant bilateral Cold War arms control agreements with the Soviets like the Threshold Test Ban Treaty and the Peaceful Nuclear Explosions Treaty, as well as multilateral agreements like the Chemical Weapons Convention negotiated with 87 participating countries, including Iran, by President Bill Clinton.

Should Congress follow in this proud tradition and disapprove of the Iran deal, there are three possible scenarios. Each presents challenges. But each is preferable to this fatally flawed agreement.

In the first scenario, Iran could decide to implement its commitments in good faith despite congressional disapproval in order to trigger substantial and automatic UN and EU sanctions relief coming to it under the terms of the agreement. If President Obama wanted to move forward with the agreement, he could circumvent legislative attempts to block sanctions relief. He would do this by using his executive authority to de-designate all Iranian financial and other commercial entities that are targets of congressional sanctions, ignore the statutory designation of Iran’s central bank, and refuse to reauthorise key energy sanctions in December 2016. Alternatively, the President could heed Congress and threaten to use secondary sanctions against European and other businesses looking to work with Iran, which would be a powerful deterrent to stop these firms from rushing into Iran and provide more diplomatic space for key P5+1 partners like France, Britain and Germany to join the United States in demanding better terms.

In a second scenario, the Iranians abandon their commitments under the agreement, but don’t rush to break out toward a nuclear weapon. Iran would get none of the benefits of sanctions relief but would try to exploit the congressional disapproval domestically, claiming that it was wronged by the United States. As it did between the mid-1990s and 2013, Iran would then likely start to escalate its nuclear program incrementally. It would take gradual steps forward in its nuclear program to avoid unifying the major powers, not to mention even more crippling economic sanctions or even US military strikes. In this case, Washington would be in a stronger position to use diplomatic and economic coercion to force the Iranians back to the table for a better deal that amends the agreement’s sunset clauses and nuclear snap back.

In a third scenario, the Iranians exploit the temporary confusion of a congressional disapproval to divide the P5+1. This is a messy diplomatic scenario – and probably the most likely one. In this scenario, Iran would implement certain nuclear commitments but not others. In the policy disagreements that would be sure to follow, Iran could then try to divide the Russians and Chinese from the West, and the Europeans from the United States in order to undermine the multilateral sanctions regime.

China and Russia might return to some Iranian business – they were busting US sanctions even at the height of Obama’s sanctions enforcement.

Europe, however, is the key. Europe’s markets always have been Teheran’s big economic prize. The key for Congress and the White House will be to use diplomatic persuasion and US financial sanctions to keep the Europeans out of Iran. America has that leverage now, before Europe rushes to re-enter the Iranian market; relying on snap back sanctions to get the Europeans out again is a weak play.

In the event of a congressional disapproval, or a vote in which a simple majority of senators reject the deal, major European companies likely will hold off on investment until a new president comes into office in 2017. They will also be concerned about the legal and reputational risk of doing business with Iran’s Islamic Revolutionary Guard Corps (which dominates strategic sectors of Iran’s economy like finance, energy, construction, and automotive and will still be designated a proliferation sponsor by the United States).

This leverage can be used to get a better deal, one that would require that nuclear, arms and ballistic missile restrictions don’t sunset until the UN Security Council (where America retains its veto) votes to lift them. It would remove the Iranian nuclear snap back language and include Teheran’s explicit acknowledgement that sanctions can be reimposed for terrorism, human rights abuses, ICBM development, and on other non-nuclear grounds. It also would include other changes like the requirement that IAEA weapons inspectors physically enter and thoroughly investigate any suspect military or non-military site, something US lead negotiator Wendy Sherman said in a recent congressional hearing will not always be necessary because soil sampling carried out by Iran will be sufficient.

It won’t be easy getting changes to the deal as it now stands. It will require additional leverage. But the United States will never again have the kind of powerful secondary sanctions leverage that it does today. Congress now has an opportunity to ensure that we maintain and use that power. The aim should not be to torpedo diplomacy. Rather, it is to defuse that ticking time-bomb by making critical amendments to this Iran deal that lower the risk of a future war.

Mark Dubowitz is Executive Director of the Foundation for Defence of Democracies and its Centre on Sanctions and Illicit Finance. This article originally appeared in Foreign Policy. © Foundation for Defence of Democracies, reprinted by permission, all rights reserved.

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