By Richard Nephew
Following President Donald Trump’s decision no longer to certify that the Iran nuclear accord is in the
U.S. national security interest, the conversation in Washington has focused on what Congress can and ought to do next.
Given the centrality of the issue of when certain restrictions on Iran's nuclear activities expire under the accord, there is a possibility that Congress will seek to pass legislation to address the perceived problem by attempting to unilaterally change the terms of the 2015 agreement. Republican Senators Bob Corker (Tenn.) and Tom Cotton (Ark.) said they would introduce legislation1 that creates triggers or redlines for the automatic snapback of U.S. sanctions suspended pursuant to the agreement, known officially as the Joint Comprehensive Plan of Action (JCPOA), although there is a chance that they will hold off moving forward for some time due to lack of support.
These triggers or redlines could be simple (e.g., focused on uranium centrifuge numbers) or complex (e.g., related to stages of ballistic missile development). Yet, the concept is the same across the board: manage the political problem of a president who campaigned against the nuclear agreement having to validate Iranian compliance, which is occurring, while devolving responsibility for the response to that compliance away from the chief executive and legislative branch to a set of “dead man’s switches.”
Separate and apart from the wisdom of this approach, discussion of such options misses the real point concerning Iran and the challenge if Iran’s nuclear program expands in the future. The central challenge is not in figuring out how the United States could respond in such a scenario; it is in ascertaining how best to achieve the goal of preventing Iran’s nuclear program from expanding in the first place. In legislating on the topic of nuclear redlines and Iranian sunsets, Congress may be able to cobble together a framework for managing the U.S. policy response. By doing so, however, Congress might eliminate any chance for negotiations with the Iranians to arrest this problem. In fact, legislating on Iranian behavior without any thought as to how Iran will actually be convinced to agree is not only somewhat pointless, it is also counterproductive in the extreme.
The Trouble With Triggers
To start, it is worth reviewing the text of existing U.S. law, the Iran Nuclear Agreement Review Act of 2015 (INARA). In essence, it lays out the process whereby the JCPOA would be evaluated by Congress for its suitability and then enforced into the future. Congress was not entirely clear as to what would be involved in the JCPOA, as specific provisions were still under negotiation with the Iranians and U.S. partners in the P5+1 (China, France, Germany, Russia, and the United Kingdom) when the legislation passed. Nevertheless, as a result of extensive briefings provided by the Obama administration, Congress had a decent idea that the agreement would involve U.S. and UN Security Council sanctions relief being traded for Iran accepting restrictions on its nuclear program, as well as additional monitoring and transparency.
Congress therefore gave itself a broad mandate to review the JCPOA and its constituent parts and the president a broad obligation to confirm on a regular basis that Iran was living up to its responsibilities under the deal. The result was a series of reporting requirements imposed on various parts of the U.S. executive branch and intelligence community, as well as the quarterly certification requirement that Iran was complying with its obligations and that sanctions relief under the JCPOA was in the U.S. national security interest. It is this latter point that the president has now refused to certify.
The rest of that law, however, is constructed as a way of signaling to Iran what would happen if it were to cheat on its obligations and to simplify the process of mounting that response. The concept is that a sanctions snapback strategy might be required if Iran starts to break out of its nuclear restrictions and that it would be prudent for that process to be as expedient as possible. Congress therefore defined cheating in broad terms, speaking of “material breaches,” “compliance incidents,” and even “potentially significant breaches.”
Congress wisely left the determination of what constitutes what in the hands of the president and the executive branch, requiring information about any such problems but avoiding prescription. Congress even acknowledged the possibility that a breach or compliance issue might arise but be “cured” by Iran, noting in essence that mistakes or provocations were to be expected during the JCPOA and that flexibility ought to be afforded to the president and his diplomats to fix them.
By discussing redlines and triggers, Congress may undo this effective and prudent setup to our collective detriment. First and foremost, if drawn tightly, such redlines and triggers could create unwarranted and unnecessary crises with Iran even where fundamental risks from the nuclear program are not present. Triggers and redlines are intended to serve as a forcing function in which A automatically results in B. For example, a redline may be drawn that Iran may not possess more than 300 kilograms of enriched uranium in forms other than fuel in perpetuity. If the amount of enriched uranium was reported at 301 kilograms, although this has no significance from the perspective of weapons breakout, the result would be the same as if Iran possessed 1,000 or 10,000 kilograms of enriched uranium in the same form: snapback of U.S. sanctions and likely a confrontation with Iran. At the same time, if the decision is made to have a redline that is looser than the underlying JCPOA requirement, say, a redline at 350 kilograms rather than 301, then the approach opens up areas of “acceptable” marginal behavior, giving Iran the impression that it can play within the range of 300-350 kilograms.
Some may argue that this is precisely why a tight trigger ought to be agreed, to stop Iran from playing games on the margins of the JCPOA. Proponents of this strategy might note that Iran played such games on heavy-water production in 2016, edging just over the permissible threshold of heavy-water possession on two occasions, and that it is precisely this kind of behavior that merits prevention. The theory goes that if Iran sees a tight trigger, it will be dissuaded from testing the fences that ring it in the JCPOA.
But, there are few scenarios in which a numerical benchmark is obtainable. Many of the issues in the JCPOA depend on interpretation of data where there may be no consensus or no judgment. On transparency and verification, for example, throughout the JCPOA, the International Atomic Energy Agency (IAEA) is called on to conduct inspections and complementary access visits in order to verify various aspects of the agreement. As a matter of logical necessity, it is up to the IAEA to make the call as to whether it assesses Iranian compliance with those elements or not. Member states can object to the IAEA assessment and render their own verdicts, but this too is a subjective appraisal. It is impossible, therefore, to have a trigger attached to such access that is immune from interpretation unless it is so mundane as to be meaningless (e.g., numbers of inspector visits).
This opens up another problem: what happens if part of the JCPOA is not captured under an explicit trigger? Just as with the concept of a 350-kilogram limit on enriched uranium, any indication given to Iran that some provisions are less important than others could convey an unhelpful signal to Iran that noncompliance in one area would be treated differently than noncompliance in another. Even if a catchall provision were to be retained, the damage might still be done, as it is human nature to take signals from perceived prioritization. After all, laws are written to forbid specific crimes rather than to encourage people to behave as good citizens.
Last but not least, if a trigger and redline approach operates as intended, then it eliminates the opportunity for diplomacy and negotiation in managing incidents that might emerge. Automaticity in the design of snapback means by its very definition that once an assessment of noncompliance is made, there would be limited opportunities for the Iranians to make redress. Presumably, they could do so before such a determination was reported to Congress, although this would create all the same problems as under the present system and as outlined above with respect to a more flexible interpretation of noncompliance.
After that, unless there is significant leeway accorded to the president on enforcement of snapped-back sanctions, which would reduce the credibility of threat itself, the die would be cast. This might be fine if the intent is to police behavior without concern for the consequences of violations, but it is worth underscoring that it is not in the interest of the United States for there to be violations in the first place. The entire basis of the accord was that the imposition of consequences for Iran’s violations of its obligations was less valuable than a resolution of the underlying nuclear problem with Iran. That would not necessarily be the case with a less flexible approach.
In all of this, an analogy with U.S. nuclear strategy in the 1950s and 1960s may be warranted. Advocates of the trigger and redline approach lament the flexible response arrangements of the present, but it is not apparent that going to a “massive retaliation” strategy would accomplish much more than raising real risks of a rapid and unintended escalation into a crisis with Iran.
Of course, some advocates of triggers and redlines have underscored that their interest is not necessarily in going after Iran today but rather laying out a set of requirements on Iran for the future. This trigger and redline approach would be potentially different because it would not be intended to resolve implementation problems but rather to police Iranian behavior after Iran’s affirmative obligations under the JCPOA start to lapse.
In this conception, the redlines and triggers would not really come into play until such time as Iran’s nuclear program begins to change and expand toward the later years of the JCPOA restrictions, or roughly 2023 forward. Options could include things such as a decision to snap-back sanctions if Iran fields advanced centrifuges in greater numbers than research and development scale starting in 2028 or a decision to reimpose sanctions if Iran declined to source its future power reactors from foreign vendors, instead preferring to build and fuel its own.
From a nonproliferation perspective, both of these Iranian steps are objectionable in their own ways. Other examples of potentially problematic Iranian nuclear activities that could occur as restrictions lapse abound, such as a decision by Iran to restart R&D on spent fuel reprocessing or the production of uranium enriched to a level higher than 3.67 percent U-235. For this reason, it is in the U.S. interest to avoid these outcomes and to work to prevent these developments.
The Matter of Iranian Honor
Those inclined to pursue a redline and trigger approach appear to believe that the most effective way forward is to threaten Iran into cooperation. They are arguing implicitly that an Iran that knows the potential consequences of its activities is an Iran that will stay meekly in its box, abiding by foreign-imposed restrictions.
Unfortunately, that is not likely to take place. Iran’s very core identity is that of a revolutionary state that resists the imperialistic tendencies of the West and those of the United States in particular. This identity was forged in the resentments that were engendered in a history of colonialism and foreign power domination, most recently experienced in the U.S. and UK-assisted coup against Iranian Prime Minister Mohammad Mossadegh in 1953 and in the predatory oil investment arrangements that Iranians felt were foisted on them throughout the 20th century.
Taking aside completely whether a U.S. decision to impose penalties against Iran for nuclear activities that, to a certain extent, were determined to be acceptable in the JCPOA would be a violation, the simple reality is that an overt imposition of obligations on Iran from the outside is the completely wrong way to start this conversation with Iran. Throughout the 2002-2015 period, when various attempts at negotiation with Iran were made, the Iranians were unambiguous about precisely one thing: they would not accept any arrangement in which they were forced to obey the demands of an outside power.
The Iranian system imposed this constraint, and Iranian negotiators observed it religiously. It is this reason, for example, that the JCPOA and the Joint Plan of Action (JPOA) that preceded it included so many references to Iran undertaking voluntary actions or making a decision as to what it would do. The legal impact of these decisions was the same as a prohibition, but the phrasing was an essential element of getting Iran to agree.
U.S. negotiators were confronted with this challenge early on in the JPOA’s restrictions on its enrichment plants and the Arak heavy-water reactor. The United States wanted to have a concrete requirement on Iran not to expand its enrichment plants or to construct the reactor, which would be capable of producing weapons-usable plutonium. Iran would not agree to such blunt language. In the end, the United States agreed to accept a statement that “Iran announces that it will not make any further advances of its activities at the Natanz Fuel Enrichment Plant, Fordow, or the Arak reactor, designated by the IAEA as IR-40.”2 The United States then used IAEA inspector access and U.S. intelligence resources to verify that this announced intention was observed.
The result was that Iran was able to frame its commitment in its own way, and the United States got the desired end result. Proponents of a trigger and redline approach might argue that they too would be fine with such an outcome and that their concept would not inherently preclude Iran making a similar declaration in the future. Yet, by framing the very discussion of this approach as coercing Iran’s future behavior, Congress would nonetheless feed into the internal deliberations in Iran as to why it would be taking or, more likely, forgoing nuclear steps in the future. This would make the jobs of those future Iranian leaders more difficult if not impossible, especially if the next few years involve a more general increase in tensions between the United States and Iran.
An important difference must be made between legislating what the United States wants and getting what the United States wants. Congress naturally has the ability under the U.S. Constitution to set conditions for what the U.S. executive branch can offer insofar as sanctions relief is concerned or even what would constitute an acceptable policy toward Iran. Historical precedent has tended to accord a president latitude in implementing his own foreign policy, which Congress has largely respected. Yet, Congress cannot legislate what a foreign government will do, only what the United States will do in response. The problem therefore emerges: how to get Iran to sign on to U.S. requirements and preferences.
The prevailing theory of the redline approach is that the threat of overwhelming U.S. sanctions pressure will be sufficient. This is a dubious proposition. U.S. sanctions prior to the 2013 JPOA were hardly light in touch, driving the Iranian economy into recession and depriving it of more than $50 billion in oil revenues in 2012 alone. Some have argued that Iran would have accepted deeper concessions in JCPOA negotiations had sanctions not been held back in 2013, but this is at best conjecture and speculation, if not wishful thinking. This author’s own assessment is that sanctions had delivered as much pressure as was going to be achievable and that they were a wasting asset.
Either way, the sanctions pressure was able to bring Iran along only so far, and bringing more to bear would require not only snapback but far deeper sanctions against Iran. Given international hesitancy to support the Trump administration approach, it is a purely hypothetical exercise to suggest that even snapback would be effective, much less obtaining the comprehensive global embargo against Iran that would be necessary for a sanctions-focused strategy to have even a chance of succeeding.
Getting the Best of Both Worlds
As was hinted in the description of what Iran accepted in JPOA language, the right answer is to get Iran to believe it is in its own interest to take the required steps and to be able to sell the result at home. This requires more tact and diplomacy and less rigid demands from the outside, but has the hope of creating actual solutions with Iran and a more sustainable agreement to boot.
To start, Congress should not change the approach of a flexible response to compliance standards embodied in INARA, and it should not adopt rigid redlines to manage Iran’s future nuclear program. Instead, Congress should maintain its more general view of how Iranian compliance under the JCPOA should be judged and should outline the broad strokes of U.S. priorities for future negotiations with Iran.
Congress can offer legislation that mandates reimposition of U.S. sanctions against Iran long into the future if evidence emerges that Iran is once again violating its nonproliferation commitments or that the IAEA is unable to provide assurances as to the absence of undeclared Iranian nuclear activities after the JCPOA’s expanded verification requirements end. This would be the establishment of a redline but one sufficiently distant and broad so as to permit latitude for executive branch performance. Alternatively and preferably, Congress can simply wait to see what happens, content in the knowledge that a massive snapback of sanctions remains a U.S. policy option in perpetuity, provided there is adequate cause and scope.
Privately, Congress can register with the administration its views as to what would constitute sufficient measures for a long-term arrangement, charging the administration to seek negotiations with Iran and other U.S. partners in its pursuit. The administration can define core elements for such an arrangement, prioritizing those measures that would provide expanded confidence as to Iran’s nuclear intent, and then seek a variety of ways for bringing them about. These could include enhancements to the IAEA’s standard safeguards practices, improved global export controls, regional arrangements, and even a direct agreement with Iran.3
Such a strategy would not generate immediate headlines nor would it satisfy the visceral desire on the part of some to see Iran acquiesce to the demands of the United States. Yet, it might just have a chance of securing the kind of steps and commitments on Iran’s part that would be necessary to convert the JCPOA into a longer-term, more sustainable nonproliferation instrument.
2. “Appendix C: Text of the Joint Plan of Action,” Arms Control Association, June 23, 2014, https://www.armscontrol.org/reports/Solving-the-Iranian-Nuclear-Puzzle/2014/06/APPENDIX_C-Text-of-the-Joint-Plan-of-Action.
3. Robert Einhorn and Richard Nephew, “The Iran Nuclear Deal: Prelude to Proliferation in the Middle East,” Brookings Institution, May 31, 2016, https://www.brookings.edu/research/the-iran-nuclear-deal-prelude-to-proliferation-in-the-middle-east/.
Richard Nephew is a senior research scholar at the Center on Global Energy Policy at Columbia University. Previously, he was principal deputy coordinator for sanctions policy at the Department of State from 2013 to 2015. Nephew also served as the lead sanctions expert for the U.S. team negotiating with Iran on the nuclear deal. From May 2011 to January 2013, Nephew served as the director for Iran on the National Security Council Staff.