An image of Iranian leaders is projected on a giant screen in front of demonstrators during a rally apposing the nuclear deal with Iran in Times Square in the Manhattan borough of New York City, July 22, 2015. REUTERS/Mike Segar
Report

Debating the Iran nuclear deal: A former American negotiator outlines the battleground issues

Robert Einhorn

Since its completion in Vienna on July 14, the Joint Comprehensive Plan of Action (JCPOA)—the nuclear deal between Iran and the P5+1 countries—has been the focus of formal congressional hearings, countless private briefings, exhaustive media coverage, strenuous lobbying efforts, and intense public scrutiny. From the initial skirmishes between supporters and opponents, we now have a good idea of the battleground issues that will drive the debate when Congress returns from its summer recess and prepares to vote on the agreement.

The battleground issues

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Many elements of the JCPOA are widely seen as positive, even by skeptics, and are unlikely to be hotly debated in the weeks ahead.

  • Deep reductions in installed centrifuges and enriched uranium stocks, as well as other constraints on enrichment capacity, will reliably lengthen the time it would take Iran to produce enough weapons-grade uranium for a single bomb to at least one year for at least the first 10 years of the agreement.
  • The re-design of the Arak heavy water reactor, the shipment of its spent fuel out of Iran, and the 15-year ban on reprocessing will effectively block the plutonium path to a bomb for the foreseeable future.
  • Limits on research and development of advanced centrifuges for the first 10 years are highly restrictive, allowing Iran to test only single machines or very small cascades. Testing of Iran’s most advanced centrifuges in larger, operationally-sized cascades can only take place after a decade, delaying deployment and operation in significant numbers.
  • The agreement ensures high confidence in the ability to detect non-compliance at declared facilities because of the use of advanced verification technologies and the scope and intensity of monitoring arrangements, including continuous surveillance and inventory accounting of activities not usually subject to such rigorous monitoring (e.g., production of uranium ore concentrate and centrifuge rotors and bellows).
  • The procedure for resolving disputes over site access will allow the United States and its European partners to overrule Iran (even if supported by Russia and China) and require it to grant the International Atomic Energy Agency (IAEA) access to any location, ensuring that military installations will not be out of bounds to inspectors.
  • The JCPOA makes clear, notwithstanding earlier Iranian rhetoric about sanctions being terminated on the day a deal is reached, that Tehran will not receive sanctions relief until the IAEA confirms that Iran has fulfilled its key nuclear commitments, including moving roughly 13,000 excess centrifuges to monitored storage, reducing enriched uranium stocks from well over 10,000 kilograms to 300 kilograms, and removing and disabling the core of the Arak heavy water reactor.
  • Under an unprecedented snap-back procedure, if the United States charges Iran with significant non-performance of its commitments, previous Security Council sanctions will be restored, unless a new, veto-able Security Council resolution is adopted that maintains the suspension of sanctions.
  • The annexes contain numerous detailed, technical agreements that will minimize ambiguities and should reduce implementation problems down the road.

In coming weeks, as Congress and the American public evaluate the Iran nuclear deal, other, more controversial aspects of the JCPOA—the battleground issues—are likely to command the main focus of what promises to be a knock-down, drag-out fight.

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1. What happens to Iran’s nuclear program after the deal’s first decade?

Wikimedia Commons/Nanking2012 - A photo of the Arak IR-40 heavy water reactor in Iran
Wikimedia Commons/Nanking2012 – A photo of the Arak IR-40 heavy water reactor in Iran

An issue likely to receive much attention, deservedly so, is what happens in the “out years”—the later years of the deal, when some key restrictions on Iran’s enrichment capacity begin to expire. JCPOA limits will ensure that, at least for 10 years, Iran would need at least one year to produce enough weapons-grade uranium to build a bomb, if it decides to breach the agreement. But as Iran becomes free to increase the number of operating centrifuges and introduce more advanced types (after 10 years) and to increase its enrichment level and stocks of enriched uranium (after 15 years), breakout time will decrease and eventually shrink to a matter of weeks—leaving Iran with a “threshold” nuclear weapons capability. Critics assert that allowing Iran to ramp up its enrichment capacity in the “out years” means that the deal merely postpones but does not prevent a nuclear-armed Iran.

There are two separate “out-year” issues. The first is how rapidly Iran can increase its enrichment capacity and thereby shorten breakout time in the second decade of the agreement. The second is whether Iran can be prevented from building nuclear weapons once the breakout time is reduced to a few weeks.

On the first issue, several elements of the nuclear deal will impede Iran’s ability to rapidly boost its enrichment capacity. Strict limits on research and development in the first 10 years will require Iran to do further R&D on advanced centrifuges after 10 years, delaying the time those machines could be deployed and operated. Moreover, maintaining the 300-kilogram cap on enriched uranium stocks and the 3.67 percent cap on enrichment levels for 15 years will further slow the rate at which breakout time will decrease between years 10 and 15.

Also important, as part of its obligations under the Additional Protocol, Iran will submit a plan to the IAEA this fall indicating the rate at which it will increase its enrichment program up to year 14, including any plans for introducing more advanced centrifuges. Under the JCPOA, Iran commits itself to abide by that plan. The P5+1 countries are aware of the plan’s key elements, which have been briefed in confidence to Congress. Reportedly, the plan indicates that Iran will increase its enrichment program at a gradual pace, not race to an industrial-scale capability that its leaders describe as their goal.

On the basis of these factors, it is expected that, at least until year 14, breakout time will be significantly greater than it is at present, perhaps in the neighborhood of half a year. If Iran encounters technical problems in developing or manufacturing advanced centrifuges—which would not be surprising given the difficulties it experienced with the IR-1 first-generation machines—breakout time will decline more slowly.

Still, whatever the rate of decline, at some point—likely between years 15 and 20—Iran will be able to increase enrichment capacity sufficiently to lower breakout time to a few weeks. At that point, the question becomes whether Iran can be prevented from making the decision to cross the threshold and build nuclear weapons.

Critics argue that, once Iran has gotten that close to the nuclear threshold, it will have a clear path ahead to nuclear weapons and will almost surely embark on that path at a time of its choosing. But it is far from certain that Iran’s leaders—having paid the huge price of devastating sanctions and international isolation for pursuing nuclear weapons—would judge that nuclear arms are a national imperative. Much would depend on how, at the time, they viewed their regional security environment, whether they thought their national aspirations could be met without nuclear weapons, and how they perceived other nations would react to their deceit in violating their international obligations and declared religious principles.

The idea that Iran ultimately may not opt for nuclear weapons is consistent with repeated assessments by the U.S. intelligence community. Since 2007, the intelligence community has judged that, while Iran’s leaders have kept open the option to pursue nuclear weapons, they have not made the decision to do so.

Even if Iranian leaders, after 15 years or more, believed their national interests were best served by having nuclear weapons, they would run major risks in going forward, with no guarantee of success.

But even if Iranian leaders, after 15 years or more, believed their national interests were best served by having nuclear weapons, they would run major risks in going forward, with no guarantee of success. Even in the ‘out years,’ the JCPOA’s rigorous monitoring arrangements will remain in force. The world will have gained intimate knowledge of Iran’s nuclear program, which would give the United States prompt warning of any Iranian effort to make a dash for the bomb. Even if breakout time had declined to a few weeks, the United States would likely have sufficient time to intervene militarily to stop them. And during the preceding years, the United States will have pursued more effective intelligence means to discover, and more effective military means to thwart, any Iranian movement toward building the bomb.

It would have been preferable to have permanent or longer-term restrictions on Iran’s enrichment program to preserve a one-year breakout time well beyond 15 years. But preventing a nuclear-armed Iran is possible without longer-lasting restrictions—provided the United States and key partners maintain a strong and credible deterrent against a future Iranian decision to go for the bomb. To that end, current and future U.S. presidents, explicitly supported by Congress, should declare that it is U.S. policy to prevent Iran from acquiring nuclear weapons and that the United States will use any necessary means, including military force, to enforce that policy.

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2. How does the deal address concerns about the possible military dimensions of Iran’s past nuclear work?

International Atomic Energy Agency (IAEA) Director General Yukiya Amano addresses a news conference after a board of governors meeting at the IAEA headquarters in Vienna March 2, 2015. REUTERS/Heinz-Peter Bader
International Atomic Energy Agency (IAEA) Director General Yukiya Amano addresses a news conference after a board of governors meeting at the IAEA headquarters in Vienna March 2, 2015. REUTERS/Heinz-Peter Bader

Another battleground issue involves persistent IAEA efforts, long frustrated by Iranian stonewalling, to gain a better understanding of past Iranian research, experimentation, and procurement believed to be related to the development of nuclear weapons. On July 14, 2015, Iran and the IAEA agreed on a “roadmap” aimed at resolving all outstanding issues related to the “possible military dimensions” (PMD) of Iran’s nuclear program. The roadmap provides for “technical-expert meetings” and “technical measures”—presumably IAEA interviews with Iranian scientists and IAEA access to documents and certain sites. Those agreed activities, all of which are to be completed by October 15, are contained in separate, confidential agreements. By December 15, the IAEA director general will provide his final assessment of the PMD issue to the agency’s board of governors and the U.N. Security Council.

Iran’s completion of all agreed roadmap steps by October 15 is a prerequisite—along with Iran’s implementation of several other nuclear-related commitments—for the suspension of U.S., EU, and U.N. sanctions. The confidential nature of Iran’s roadmap steps reflects the IAEA’s standard practice of confidentiality on safeguards matters, but this has understandably caused a stir on Capitol Hill, especially because sanctions relief depends on fulfillment of those steps.

The IAEA’s professional judgment is that implementation of the agreed steps would provide the agency what it needs to gain an adequate understanding of the PMD issue. But U.S. legislators want to make their own evaluation of those steps before casting votes on the JCPOA. Administration officials apparently are not in possession of the detailed IAEA-Iran arrangements, although they are aware of the key elements. To address legitimate congressional concerns, they have confidentially briefed those elements to members. Moreover, the Senate Foreign Relations Committee held a closed-door session with IAEA Director General Yukiya Amano on August 5 to discuss the roadmap.

Implementation of the roadmap may well give the IAEA greater insights into past Iranian activities than it has gained to date. But even if Iran takes the formal steps required by the roadmap–grants the required access to scientists, documents, and sites—it is hard to imagine that Iranian cooperation with the IAEA will be sufficiently forthcoming or that Iranian responses to IAEA questions will be sufficiently complete and truthful to give the IAEA a full understanding of those activities. As a result, the director general’s December report is likely to be inconclusive, indicating progress in clarifying certain issues but noting questions and concerns that remain. It may say, on the one hand, that the agency is unaware of evidence that weaponization activities continue but, on the other, that it cannot conclude that past activities were not nuclear weapons-related.

Clearly, such an outcome of the PMD issue would not be very satisfying. But a full and honest disclosure by Iran of its past weaponization activities—which would contradict Tehran’s narrative of an exclusively peaceful program as well the supreme leader’s fatwa that Islam forbids nuclear weapons—was never in the cards. The key question is whether the absence of a full Iranian confession regarding its past activities is a serious obstacle to achieving confidence that Iran is not pursuing nuclear weapons going forward.

Considering the range of tools we will have for preventing a nuclear-armed Iran, including but not limited to those provided in the JCPOA, the failure to achieve full knowledge of the past does not represent a critical deficiency.

The answer to this question will be vigorously debated. However, considering the range of tools we will have for preventing a nuclear-armed Iran, including but not limited to those provided in the JCPOA, the failure to achieve full knowledge of the past does not represent a critical deficiency.

The JCPOA contains a number of provisions that can help deter and prevent future weaponization activities. Correcting a serious omission in the Non-Proliferation Treaty, it explicitly commits Iran not to engage in a range of specific activities related to the development of nuclear weapons, including certain work in uranium and plutonium metallurgy, nuclear explosive modeling, research on explosive detonation and neutron initiation systems, and procurement of specialized equipment for those purposes. In addition, Security Council restrictions on importing sensitive technologies for military end-uses, together with the consensus approval procedure for the procurement channel set up to allow nuclear and dual-use items for peaceful purposes, will impede Iranian attempts to import materials and equipment relevant to weaponization. And the deal’s provisions that ensure IAEA access to any locations in Iran where illicit activities are suspected of taking place (discussed below) can play a role, albeit a modest one, in discouraging future nuclear weapons-related activities.

In addition to the tools provided in the agreement, the international community will need to rely heavily on national intelligence capabilities, especially those of the United States and its foreign partners, to discover any future work on weaponization. Indeed, what we know about Iran’s past weapons-related activities comes primarily from Western intelligence sources. Keeping the Iran nuclear issue near the top of U.S. intelligence priorities may be the most promising way to address weaponization going forward.

Some observers have argued that full knowledge of past activities is necessary to design an effective verification system for the future. But the relevance of activities over 12 years ago to devising today’s monitoring arrangements is not clear. Would the Iranians return to the same sites they used for weaponization activities previously? Would future weapons-related activities be confined to the same personnel who participated before?

More fundamentally, the challenge of detecting small-scale weaponization work is much greater than the challenge of monitoring higher-profile, less easily concealed activities related to the production of fissile materials. With or without full knowledge of the past, it is hard to imagine reaching agreement on monitoring arrangements intrusive enough to provide confidence that Iran has no ongoing weaponization activities. For example, among the measures that could be helpful in providing such confidence would be arrangements for closely and frequently keeping track of the activities of Iranian scientists with the necessary expertise or for verifying on site the end-uses of equipment throughout Iran that could be used in nuclear weapons design and diagnostics.

However, such intrusive arrangements are simply unrealistic. No sovereign state will permit that level of external scrutiny. Full knowledge of past Iranian activities would not make it any easier to persuade Tehran to accept such monitoring. That is why deterring weaponization activities must depend less on agreed monitoring measures and more on intelligence capabilities, procurement restrictions, and the threat of harsh penalties for violations.

Some analysts argue that, in order to calculate how much time we would have to intervene and thwart an Iranian attempt to break out and build nuclear weapons, we need to know how much progress Iran made in its past weaponization efforts—and that this requires full disclosure by Iran of its past activities. But why would we depend on Iranian accounts of how far they had progressed, especially when they would have incentives to mislead us, most likely to understate how far they had gotten?

From our own sources, we already have considerable knowledge of past Iranian activities—not “absolute knowledge” as U.S. Secretary of State John Kerry claimed in a recent misstatement, but a significant amount. Moreover, in calculating the time available to thwart an Iranian breakout attempt, we would have to make the conservative assumption that Iran had made major headway on weaponization, and that going from the production of weapons-grade uranium to the fabrication of a workable nuclear weapon would not be a significant challenge. It is unlikely that anything Iranian scientists might tell the IAEA about activities before 2003 (when dedicated weaponization research is believed to have been suspended) would affect U.S. planning for interrupting an Iranian dash for nuclear weapons.

It would certainly be preferable for Iran to come clean on its past weaponization work, not because it would have much practical utility in devising the agreement’s monitoring measures or in planning to thwart a possible future breakout, but because an admission of past nuclear weapons intent would provide greater confidence that Iran had made a strategic decision to abandon any aspiration to acquire nuclear arms. Unfortunately, Iran will not come clean, and that will perpetuate concerns about its intentions.

Still, with vigorous enforcement of the JCPOA, aggressive intelligence-gathering, and the credible threat of forceful intervention in the event of an Iranian breakout attempt, it is possible to deter Iran from exercising the option to build nuclear weapons, even if the outcome on the PMD issue is less than fully satisfactory. And if Iran’s implementation of the PMD roadmap does not allay IAEA concerns and leads to an inconclusive report in December, the PMD file should stay open over the next several years as the IAEA considers the “broader conclusion” on whether Iran’s nuclear program is exclusively peaceful—the conclusion that would provide the basis for a future U.S. administration to ask Congress to terminate, not just suspend, statutory sanctions.

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3. Is IAEA access to sensitive sites timely enough?

Iranian Foreign Minister Mohammad Javad Zarif, Iranian ambassador to IAEA Ali Akbar Salehi, Russian Foreign Minister Sergey Lavrov, British Secretary of State for Foreign and Commonwealth Affairs Philip Hammond, U.S. Secretary of State John Kerry and U.S. Secretary of Energy Ernest Moniz (L-R) prepare for a family photo in Vienna, Austria 14 July, 2015. REUTERS/Leonhard Foeger
Iranian Foreign Minister Mohammad Javad Zarif, Iranian ambassador to IAEA Ali Akbar Salehi, Russian Foreign Minister Sergey Lavrov, British Secretary of State for Foreign and Commonwealth Affairs Philip Hammond, U.S. Secretary of State John Kerry and U.S. Secretary of Energy Ernest Moniz (L-R) prepare for a family photo in Vienna, Austria 14 July, 2015. REUTERS/Leonhard Foeger

Another battleground issue that has gained prominence in recent weeks is whether the JCPOA’s provisions on IAEA access to suspect sites—beyond those declared sites that will be subject to continuous verification—can effectively deter and detect covert violations of the agreement. The text of the agreement has largely put to rest concerns that the IAEA might be denied access to such suspect sites—concerns heightened by statements from Iran’s supreme leader, Ayatollah Ali Khamenei, that access to military sites would cross one of his redlines. The JCPOA’s provisions for resolving access disputes—under which a Joint Commission can, by majority vote, require Iran to grant access or face the Security Council’s restoration of sanctions—provide assurance that Tehran cannot get away with blocking access to any location in the country.

The main controversy on access involves the question of whether IAEA inspectors will be admitted to suspect facilities in a timely fashion—in particular, whether they will gain access before Iran is able to hide or remove evidence of illicit activities. Although the IAEA Additional Protocol does not establish a time limit after which parties are required to admit inspectors, the P5+1 insisted on imposing one on Iran in the JCPOA. It provides for a maximum of 24 days from the time the IAEA requests access to the time Iran must accede to a Joint Commission decision to provide access. In a breakout scenario, the time limit would prevent the Iranians from stalling indefinitely in the hope of buying time for breakout activities to advance before the United States or others could intervene to stop them.

Critics argue that 24 days would give Iran plenty of opportunity to eliminate incriminating evidence before inspectors can arrive—either by simply moving equipment or materials to another location or scrubbing the facility of any physical traces of illicit activity.

Supporters of the agreement point out that it would not be possible in 24 days to hide evidence of covert production facilities, such as conversion and enrichment plants or centrifuge manufacturing workshops, or other relatively large objects, such as a high-explosive chamber. Moreover, they maintain that sophisticated environmental sampling technologies would have a good chance of detecting microscopic traces of covert activity if uranium or other nuclear materials were involved, even long after 24 days. And they argue that, as soon as the IAEA requests an inspection, U.S. intelligence assets would focus on the suspect site and be able to identify signs that incriminating cleanup efforts were underway.

The critics are right that removal and cleanup efforts could be successfully completed within 24 days in the case of small-scale illicit activities, especially if no nuclear materials are involved. Moreover, although intelligence assets have in the past detected efforts to sanitize sites—notably at Iran’s Parchin facility—detection of such efforts cannot be counted on in all instances.

In the absence of no-notice, surprise inspections–which have only been achieved in a case like Iraq, where the Security Council was in a position to dictate terms to a defeated country–no inspection system can reliably ensure on-site confirmation of small-scale, non-nuclear activities.

In the absence of no-notice, surprise inspections—which have only been achieved in a case like Iraq, where the Security Council was in a position to dictate terms to a defeated country—no inspection system can reliably ensure on-site confirmation of small-scale, non-nuclear activities. Even a system requiring access to be granted in a week or even several days, which some of the critics advocate, could not provide such assurance. The inspection system established under the JCPOA is not perfect, but it is timely enough to prevent the removal or concealment of incriminating evidence of the kind of illicit activities that would be of greatest concern and would most significantly lessen Iran’s breakout time.

Moreover, responding to Iranian violations need not depend on proof gathered by the IAEA on site. While an IAEA inspection that catches Iran red-handed would probably provide the strongest basis for going to the Security Council and re-imposing sanctions, the United States would not need to wait for IAEA confirmation of Iranian cheating. If the United States acquired reliable intelligence of Iranian violations that posed a serious security threat and could be shared with others, the nuclear deal enables Washington to go directly to the Security Council without waiting for IAEA access. Indeed, depending on the scale and time-urgency of the threat, the United States could choose to act on its own to penalize Iran.

Inspections are only one component of the JCPOA’s comprehensive monitoring system. Continuous surveillance of the entire nuclear supply chain, including the prohibition of sensitive imports other than those individually approved and monitored for legitimate purposes, will make it difficult for Iran to pursue an undetected covert enrichment program. To succeed, a covert program requires not just a single clandestine site but a substantial number of effectively hidden facilities and undetected movement of equipment and materials between them. It requires unaccounted-for or successfully diverted supplies of uranium ore, processed uranium, uranium gas, centrifuge components, and facilities designed to produce those supplies. The JCPOA’s layered monitoring system will greatly increase the likelihood of detecting one or more of the necessary elements of a covert program and provide a substantial deterrent to Iranian cheating.

“Anywhere, anytime” inspections were never a possibility. But the approach to inspections outlined in the nuclear deal can prevent extended foot-dragging, facilitate IAEA confirmation of violations that cannot be rapidly covered up, and heighten the perceived risks to Iran of cheating—all of which make a significant contribution to the JCPOA’s overall verification system.

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4. What is the significance of restrictions on conventional arms transfers and ballistic missile activities?

Iran's Shahab-3 medium range missile is pictured in this September 25, 1998 file photo at a military parade in Tehran. REUTERS/Damir Sagolj
Iran’s Shahab-3 medium range missile is pictured in this September 25, 1998 file photo at a military parade in Tehran. REUTERS/Damir Sagolj

An issue that was only resolved in the final days of negotiations and has become controversial since then is the question of restrictions on Iran’s export and import of conventional arms and on its ballistic missile program. These restrictions were part of the Security Council sanctions in place prior to the conclusion of the JCPOA. Iran, supported by Russia and China, pressed for eliminating them at the same time other Security Council sanctions are removed, but the United States insisted on preserving them in a new council resolution. A compromise was reached on their duration, with the conventional arms embargo lasting five more years and the ballistic missile restrictions lasting eight more years.

The original Security Council restrictions were adopted as punishment for Iran’s violations of its nuclear obligations and as an inducement to negotiate a nuclear deal. The restrictions were not intended to be permanent; their termination was linked to an agreement that would provide confidence in the peaceful nature of Iran’s nuclear program. Given that reality and strong pressures for immediate repeal by Iran, Russia, and China, it was a significant accomplishment to have preserved the restrictions at all.

Critics have attacked the expiration of the restrictions after five and eight years. They maintain that, once the restrictions end, Iran will be free dramatically to increase its military capabilities and threaten its neighbors. Moreover, the Iranians have made clear that, even during the five-year and eight-year periods, they will not consider themselves bound by the renewed conventional arms and ballistic missile constraints, just as they did not consider themselves bound by the original Security Council restrictions, which they termed illegal. They say they are only committed to comply with their commitments under the JCPOA and have given every indication that they will disregard and seek to circumvent the renewed council restrictions.

But even though the conventional arms and ballistic missile restrictions have finite durations and even though Iran has no intention to comply with them, they are well worth having. They will prevent Tehran from using the $100-plus billion in previously frozen oil revenues that will be released under the JCPOA to go on a buying spree next year for advanced conventional weaponry and ballistic missile technology. Although Iran will seek to evade the renewed restrictions, Russia and China voted for them and, together with other U.N. members, will be bound to enforce them. Although the arms embargo does not cover all categories of arms (air defense systems such as the S-300 are not included), neither Russia nor China is expected to sell Iran the weapons that are covered, such as high-performance aircraft.

During the five- and eight-year reprieves on the termination of the restrictions, the United States and its partners will have time to strengthen their regional conventional military and missile defense capabilities. To maintain the qualitative advantages currently held by Israel and several Gulf Arab states, Congress should approve proposed arms sales to the Gulf Arabs and pass a new 10-year Memorandum of Understanding (MOU) for military assistance to Israel, which should include additional funding for the development and deployment of the next stage of the Arrow ballistic missile defense system.

The continuation of conventional arms and missile restrictions will also provide international legitimacy to efforts by the United States and others to interdict shipments and stop transactions that violate the restrictions. Should the United States receive intelligence or other information about Iranian attempts to procure arms or technology illicitly or to export arms (of any category) to its proxies, it will have the Security Council’s continuing authorization to take steps to block such transfers, and it can call on other U.N. members to cooperate in enforcing the Council’s mandated restrictions.

Even after the renewed Security Council restrictions expire, the United States will have other legal authorities and policy tools to address Iranian arms transfers to its proxies and imports of sensitive technologies.

Even after the renewed Security Council restrictions expire, the United States will have other legal authorities and policy tools to address Iranian arms transfers to its proxies and imports of sensitive technologies. Existing U.N. embargoes on transfers to Hezbollah, the Yemeni Houthis, and Shiite militants in Iraq require U.N. members to prevent prohibited transfers from or through their territory. Other available policy tools include the Proliferation Security Initiative which facilitates international cooperation in interdicting illicit transfers, U.S. sanctions laws which target certain Iranian conventional arms and missile activities, and the Missile Technology Control Regime which coordinates the missile export policies of the major missile supplying governments, including Russia.

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5. WHAT ARE THE IMPLICATIONS OF SANCTIONS RELIEF, INCLUDING RELEASE OF $100-PLUS BILLION IN RESTRICTED ASSETS?

Iranian President Mahmoud Ahmadinejad visits the Natanz nuclear enrichment facility, 350 km (217 miles) south of Tehran, April 8, 2008. REUTERS/Presidential official website/Handout (IRAN).
Iranian President Mahmoud Ahmadinejad visits the Natanz nuclear enrichment facility, 350 km (217 miles) south of Tehran, April 8, 2008. REUTERS/Presidential official website/Handout (IRAN).

The nuclear deal’s provisions on sanctions relief have generated many important questions—including whether relief would be conditioned on Iran’s performance, whether major and early relief would forfeit too much leverage needed to incentivize continued Iranian compliance, whether sanctions can be restored in the event of non-compliance, and whether Iran will be penalized for behavior outside the nuclear realm.

Obama administration officials have addressed many of these questions—not to the full satisfaction of the deal’s critics but enough to allay some of the most serious concerns. They have pointed out that, under the nuclear deal:

  • Sanctions relief will follow, not precede, Iran’s implementation of key nuclear commitments.
  • Existing sanctions for non-nuclear-related Iranian behavior (e.g., support for terrorism, human rights abuses) will remain in force, and additional sanctions can be imposed, including on entities no longer sanctioned for nuclear reasons.
  • A substantial number of entities on the U.S. sanctions list will remain on the list for eight years or indefinitely (including the Iranian Revolutionary Guard Corps—IRGC—and its regional arm, the Quds Force, and various military and missile entities).
  • Foreign banks and other entities dealing with those that remain on the sanctions list will be subject to being cut off from the U.S. financial system.
  • U.S. sanctions can be restored in a matter of days if Iran violates its commitments, and Security Council sanctions can be snapped back automatically within 30 days if a single JCPOA party charges Iran with significant non-performance of its commitments.
  • Entities that legally enter into contracts before the snap-back of Security Council sanctions will be subject to sanctions if they do not stop or wind down the implementation of any such contracts covered by the restored sanctions. Contrary to an impression created by convoluted language in the JCPOA text, those contracts will not be grandfathered.

Although the JCPOA clearly provides for snap-back, legitimate questions remain about whether businesses and governments will conscientiously go along with the re-imposition of sanctions, especially if they have established a strong commercial or political stake in remaining engaged with Iran. Much will depend on the seriousness of the Iranian violation that triggered the re-imposition and the strength of the evidence that a violation had been committed. Strong, shareable evidence of major violations, such as breakout preparations, would facilitate the reassembling of the international sanctions coalition. Weaker evidence or less serious infractions would make it harder.

The Obama administration should engage now with key international partners to sensitize them to the possible future need to restore sanctions, in whole or in part, and to develop procedures and contingency plans for doing so. It should build support for rigorous enforcement of compliance from the outset, addressing and resolving promptly the inevitable implementation problems that will arise and not allowing even minor violations of the JCPOA to proceed without an appropriately firm response.

One sanctions relief issue that remains highly controversial is what the Iranians will do with the oil revenues held in restricted overseas bank accounts that will be released to them on “implementation day,” when the major tranche of nuclear-related sanctions will be suspended. Critics of the nuclear deal, both at home and abroad, regard the released funds—somewhere in the neighborhood of $100 billion—as a windfall that will enable Iran to devote substantial additional resources to destabilizing its neighbors and expanding its regional influence, including by boosting assistance to its proxies and allies in Lebanon, Syria, Iraq, Bahrain, Gaza, and Yemen and strengthening the capabilities of the IRGC’s Quds Force. They note that, unlike the ability to reverse the suspension of most other sanctions, the previously frozen assets, once released, will be unrecoverable.

The administration has tried to minimize the potential adverse effects of the released funds. In a hearing of the Senate Foreign Relations Committee on July 23, U.S. Treasury Secretary Jack Lew pointed out that, of the roughly $100 billion in released funds, about half are already committed to meeting outstanding obligations, including payments to China for infrastructure projects, leaving Tehran with approximately $50 billion not yet spoken for. Administration officials have maintained that Iran will likely give priority to the huge expenditures needed for rehabilitating its economy, which Lew said would require well over $500 billion in pressing investment requirements and government obligations.

Administration officials also point out that, for the IRGC—the organization many critics believe will be a major beneficiary from released assets—sanctions relief will be a mixed blessing. While it may gain access to additional funds, it will also likely lose out on profits derived from its control over the black market for sanctioned goods and sectors—at least part of the explanation why the IRGC opposes the nuclear deal.

Still, the release of the restricted assets clearly poses risks. Even if only half the released $100 billion is uncommitted and even if the lion’s share of those uncommitted funds will go to addressing Iran’s economic woes, which seems like a very safe assumption, even a small fraction of the released assets could make a significant difference if allocated to supporting Tehran’s aggressive regional behavior, including arming and funding proxies like Hezbollah and the Assad regime in Syria. This is the source of deep concern among America’s Gulf Arab friends and Israel.

The most effective U.S. response to the risks posed by the released assets is not to scuttle the deal or to try to re-negotiate a phased or substantially delayed release which, given the priority the Iranians attached to early recovery of the funds, would have little chance of success. Instead, Washington should work with its partners to counter Iranian provocations. That means stepping up interdictions of illicit arms shipments, strengthening counter-terrorism efforts (including impeding and sanctioning terrorism financing), building up the capacities of America’s friends, and in general demonstrating U.S. resolve to play a strong leadership role in the region, including opposing Tehran’s aggressive regional designs.

Critics of the nuclear deal are correct that nothing in the JCPOA prevents Iran from continuing to engage in destabilizing regional behavior. By the same token, nothing prevents the United States and its partners from countering that behavior.

Critics of the nuclear deal are correct that nothing in the JCPOA prevents Iran from continuing to engage in destabilizing regional behavior. By the same token, nothing prevents the United States and its partners from countering that behavior, including by imposing sanctions not removed by the JCPOA and by employing a wide range of available policy tools to counter terrorism and illicit arms trafficking. Moreover, while the released assets will put additional resources at Tehran’s disposal, those funds are much more than offset by the substantially greater resources that the United States and its Gulf Arab partners can bring to bear to address the regional challenges posed by Iran.

At the Senate Foreign Relations Committee hearing, Secretary Lew stated that the United States “will aggressively target any attempts by Iran to use funds gained from sanctions relief to support militant proxies.” U.S. partners in the region will be watching closely to see if Washington follows through on that pledge.

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6. WHAT ARE THE CONSEQUENCES OF REJECTING THE DEAL?

Gas flares from an oil production platform at the Soroush oil fields in the Persian Gulf, 1,250 km (776 miles) south of the capital Tehran, July 25, 2005. REUTERS/Raheb Homavandi
Gas flares from an oil production platform at the Soroush oil fields in the Persian Gulf, 1,250 km (776 miles) south of the capital Tehran, July 25, 2005. REUTERS/Raheb Homavandi

As a congressional vote on the JCPOA nears, the debate over the consequences of disapproval will intensify. The administration argues that, in the event of rejection, the U.S.-led sanctions regime would unravel; the United States would be isolated as the spoiler; Iran would quickly build up its nuclear capabilities; and prospects for a military confrontation would increase. Opponents of the deal paint a much rosier scenario: The United States would build support for stronger sanctions; members of the international sanctions coalition would stick together in the hope of getting negotiations back on track, preventing confrontation, and avoiding the imposition of sanctions on their own firms; the Iranians would continue the interim freeze on their nuclear program; and before long, negotiations would resume and a better deal would be concluded.

Of course, we can only speculate on the consequences of rejection. But available evidence suggests that the likely outcome would be closer to the administration’s predictions, although not quite as rapid or precarious.

Should Congress pass a joint resolution disapproving the nuclear deal and then override Obama’s promised veto, the Iran Nuclear Agreement Review Act (INARA) would prevent the president from issuing the waivers needed to implement the U.S. commitment under the JCPOA to suspend U.S. sanctions—nullifying a central element of the deal and preemptively removing the incentive for Iran to begin implementing its nuclear commitments. Under the JCPOA, the suspension of U.S. sanctions is supposed to take place after Iran has fulfilled key nuclear commitments, most likely not until early 2016.

More immediately, congressional rejection would prevent the president from continuing to implement the limited sanctions relief required by the Joint Plan of Action (JPOA)—the interim agreement reached in November 2013.

One of the JPOA’s relief measures has been to release $700 million to Iran each month of the roughly $100 billion of Iran’s assets frozen in overseas accounts. Those payments would stop.

The most important of the JPOA’s interim sanctions-relief measures involves the purchase of Iranian crude oil. Starting in 2012, U.S. oil sanctions compelled key countries purchasing Iranian crude to make significant cuts in their imports every six months. Under the JPOA, those countries were allowed to freeze reductions at already-reduced levels without risking sanctions. The end of JPOA sanctions relief under the INARA would mean that the administration would be required to impose sanctions on countries importing Iranian crude oil if they did not make significant additional reductions over the next six months. The countries that would be affected would include China, India, Japan, South Korea, and Turkey.

The key would be China, the largest purchaser of Iranian crude, which reluctantly made major cuts in imports to provide leverage for diplomacy. Convinced that the United States walked away from an effective solution to the nuclear problem, Beijing might simply ignore the re-imposition of U.S. oil sanctions and refuse to make further cuts, forcing the United States to choose between not imposing sanctions (and exposing them as a paper tiger) or imposing them and risking a major confrontation with China. And even if the U.S. chose the more confrontational course, China could possibly find workarounds, creating new banks and companies to bear the brunt of sanctions for facilitating oil purchases, while insulating major Chinese entities from the reach of U.S. sanctions and proceeding to increase purchases.

A less likely possibility is that the Chinese, wishing to avoid a confrontation with the United States and able to find alternative suppliers in today’s well-supplied oil market, might decide to go along with the re-imposed sanctions. But instead of making the significant additional reductions required by U.S. sanctions law (roughly 20 percent additional cuts over six months), it might proffer a token reduction (e.g., a few percent), counting on the United States to regard that as sufficient not to trigger sanctions rather than precipitate a confrontation.

To avoid commercial disadvantage, India, Japan, and South Korea have been willing since 2012 to reduce crude oil purchases only as long as China was doing so. Following the rejection of the nuclear deal, they could be expected to follow Beijing’s lead, either making token reductions of their own or ignoring the re-imposition of sanctions in the expectation that Washington would not pick a major fight with a united front of regional powers and trading partners.

So, in the worst case, congressional rejection could thrust the United States into a damaging standoff, threatening and possibly imposing sanctions against the world’s leading economies in the uncertain hope of forestalling a rapid hemorrhaging of oil sanctions. In the best case, the United States could win grudging support for token additional reductions. But the likelihood of persuading Iran’s principal customers to accept dramatic new cuts in purchases—on a scale that could pressure Iran to make major concessions it has been unwilling to make under the devastating sanctions it has faced for years—is extremely small, especially when all those customers view the negotiated deal as reasonable and would resent Washington’s decision to walk away from it.

Meanwhile, the United States would be trying to maintain existing sanctions in areas other than crude oil. It would be assisted in this effort by the cautious approach many entities could be expected to take when considering whether to buck the current sanctions regime. Major international banks might be especially guarded, fearing a cutoff from the U.S. financial system if they ran afoul of U.S. sanctions.

A U.S. rejection of the nuclear deal and the indefinite continuation of American sanctions would give many [businesses] pause. But we could expect others to begin testing whether existing U.S. sanctions would be vigorously enforced.

But the temptation to enter or re-enter the Iranian market may, in many cases, override that caution. In anticipation of a nuclear agreement and the removal of sanctions, businesses all over the world, supported by their governments, have been eager to establish or restore commercial relationships with Iran and work on new deals. Sensing major opportunities, they want to move quickly, lest they wait too long and find themselves at a disadvantage relative to their competitors. A U.S. rejection of the nuclear deal and the indefinite continuation of American sanctions would give many of them pause. But we could expect others to begin testing whether existing U.S. sanctions would be vigorously enforced.

Until now, the United States has had the strong support of the European Union and European governments in enforcing sanctions. But in the wake of U.S. rejection of an agreement that European governments strongly support, European authorities may be less resolute in cracking down on sanctions evaders.

In an effort to hold the line on existing sanctions, the United States would need to pursue a vigorous worldwide campaign to penalize sanctions busters, threatening and imposing sanctions even on close allies and trading partners. And as the ranks of sanctions evaders grew and as the defectors came to believe there was strength in numbers, such a campaign could become increasingly confrontational, futile, and self-defeating, especially if the sanctioned entities had substantial economic links to the United States.

Existing sanctions would not collapse suddenly. But over time—perhaps a period of several months to a year—they would certainly erode. And if keeping the current sanctions regime intact would be very difficult, persuading the international community to ratchet up sanctions dramatically—what critics of the JCPOA are counting on to pressure Iran to accept a “better deal”—would be nearly impossible, especially in the absence of a major new provocation by Iran, such as a rapid increase in its enrichment capacity.

How would the Iranians react to congressional rejection of the JCPOA and U.S. efforts to strengthen sanctions? Some engagement-minded Iranians might recommend taking the “high road”—let the Americans shoot themselves in the foot; maintain the interim accord’s nuclear freeze and enhanced monitoring measures without initiating the nuclear and monitoring steps required by the final deal; launch a worldwide campaign to blame the United States for the collapse of the diplomatic effort; and plan for increasing nuclear capacity at a time when Iran would escape any criticism for doing so.

However, such an Iranian reaction is very unlikely. With the United States resuming sanctions that had been suspended during the negotiations and the U.S. president legally barred from implementing the comprehensive sanctions relief that was Iran’s main reason for reaching the nuclear deal, there is little chance of Tehran opting for the high road. Spurred on by domestic opponents of the nuclear deal, the supreme leader could be expected to retaliate against congressional action by forbidding steps to implement the JCPOA and authorizing the resumption of nuclear activities suspended under the JPOA.

To win over international opinion and encourage the erosion of international sanctions, Iran might initially see advantage in only a gradual increase in nuclear activities—testing advanced centrifuges but not increasing the number of operating centrifuges, resuming the construction of the originally designed Arak reactor, suspending the conversion of enriched uranium hexafluoride to oxide, discontinuing the JPOA’s enhanced monitoring measures, and so on.

However, as time passed and the Iranians saw the United States actively seeking to retain and expand sanctions, nuclear self-restraint would become less and less politically tenable and Iran’s nuclear capabilities would grow. Even then, the Iranians might well be reluctant to boost their capabilities at a rate that would cause alarm and provide a justification for new sanctions or the consideration of military options.

Congressional rejection of the JCPOA would mean the end of negotiations for quite some time. With the U.S. pursuing stronger sanctions and the Iranians increasing their nuclear capabilities, and each side accusing the other of bad faith, the climate for resuming diplomacy would deteriorate. Movement toward a military confrontation would not be inevitable—it would depend significantly on the pace and direction of Iran’s nuclear program.

It is not inconceivable that a new round of negotiations could begin at some future date. But prospects for success would be more remote than at present. Iranian opponents of negotiations would have the convenient and domestically powerful argument that Iranian concessions make little sense when the Americans have demonstrated that they cannot be trusted to live up to their end of any deal. And by the time new negotiations got underway, both the scale and technical sophistication of Iran’s nuclear program would be significantly greater than they are today.

A “better deal”–now or in the future–is an illusion.

Achieving a deal that would be as strong a barrier to a nuclear-armed Iran as the one currently on the table, especially without the powerful sanctions leverage that made the JCPOA possible, would be next to impossible. A “better deal”—now or in the future—is an illusion.

Go back to battleground issues list »

CONCLUSION: AN IMPERFECT BUT WORTHY DEAL

U.S. Senator Bob Corker (R-TN) talks to reporters after the weekly Republican caucus policy luncheon at the U.S. Capitol in Washington May 12, 2015. REUTERS/Jonathan Ernst
U.S. Senator Bob Corker (R-TN) talks to reporters after the weekly Republican caucus policy luncheon at the U.S. Capitol in Washington May 12, 2015. REUTERS/Jonathan Ernst

The preceding discussion has focused on battleground issues related to the nuclear deal. Of course, congressional debate and voting will not be based exclusively, or even primarily, on the merits and shortcomings of the deal itself. For many members of Congress and the American public at large, the particulars of the JCPOA may be less important than questions surrounding the deal: Can we trust the Iranians? Will the deal moderate Iranian regional behavior or empower them to expand their destabilizing activities? Will it affect the internal political balance in Iran between pragmatists and ideologues, strengthen or jeopardize the security of traditional U.S. friends in the region, signal a decline in America’s regional role or lead to a reassertion of U.S. leadership?

These are all crucial questions that need to be thoroughly debated. They should and will have an important bearing on any congressional vote. But the threshold test for the nuclear deal is whether it achieves its essential goal of preventing Iran from acquiring nuclear weapons. And to evaluate whether the JCPOA passes this critical test, the issues dealt with here must be well understood.

Any discussion of these battleground issues exposes some of the deal’s imperfections. This is not surprising. Elements of the deal widely seen as positive do not become battleground issues. The negotiating outcomes that attract the most criticism and attention are those where difficult compromises have been made. As the deal’s supporters would acknowledge, it would have been better for restrictions on enrichment capacity to last longer, for Iran to disclose the details and true purpose of its past activities, for inspections to be carried out without advanced notification, for constraints on conventional arms and ballistic missiles to be accepted as binding by Iran and to last indefinitely, and for restricted assets to be released gradually over time. Unfortunately, these and other ideal outcomes were not achievable.

However, such ideal but unrealizable outcomes are not necessary to achieve an acceptable agreement. The questions and concerns raised by the battleground issues can be addressed by U.S. policies that supplement the deal and bolster its overall effectiveness. None of these policies are constrained by the JCPOA.

  • To address concerns about Iran reaching threshold nuclear status in the out years, the United States should adopt a firm public policy aimed at deterring a future Iranian decision to cross the threshold and build nuclear weapons. With the endorsement of Congress, U.S. presidents should declare that the United States will use any means necessary, including military force, to prevent Iran from acquiring nuclear weapons. In that connection, the United States should identify privately to Tehran activities that have no plausible peaceful justification in Iran and would be regarded as evidence that Iran had decided to pursue nuclear weapons (e.g., production of highly enriched uranium or separated plutonium).
  • In the event of unresolved issues regarding the possible military dimensions of past Iranian activities, the United States should make detection of any future Iranian weaponization activities a high priority for U.S. intelligence; enforce strictly JCPOA restrictions on Iranian procurement of weaponization-related equipment; and encourage the IAEA to remain focused on the weaponization issue as it implements the Additional Protocol in Iran and develops its “broader conclusion” on the nature of Iran’s nuclear program that will provide the basis for a future congressional decision on terminating U.S. nuclear-related statutory sanctions.
  • To avert Tehran’s exploitation of the time allotted for IAEA inspections, the United States should press for the most expeditious implementation of the JCPOA’s access procedures; share intelligence with the IAEA and its Joint Commission partners on suspect activities and on possible efforts by Iran to sanitize suspect sites; and be prepared to go directly to the U.N. Security Council, without waiting for IAEA access, when warranted by the seriousness and time-urgency of illicit Iranian activities.
  • The United States should take a number of steps to reinforce restrictions on conventional arms and ballistic missiles:
    ◦ Press potential supplier governments to comply with renewed Security Council prohibitions on transferring major conventional weapons and missile technology to Iran;
    ◦ Step up U.N.-authorized efforts to interdict illicit shipments to and from Iran;
    ◦ Strengthen the conventional military and missile defense capabilities of U.S. regional partners (with congressional approval of proposed arms sales to the Gulf Arabs and a new 10-year military assistance MOU with Israel); and
    ◦ When U.N. restrictions expire after five and eight years, use other available legal authorities and policy tools—including U.N. embargoes on transfers to certain non-state actors and U.S. sanctions laws—to impede Iran’s conventional and missile capabilities and support for its proxies.
  • To strengthen international backing for the snap-back of sanctions in the event of Iranian violations, the United States should actively build support at the outset for rigorous enforcement of compliance (including with respect to minor violations); ensure a common understanding among the P5+1 and other key states regarding JCPOA provisions dealing with sanctions relief and snap-back; and work with those partners to establish procedures and contingency plans for the re-imposition of sanctions and adoption of other penalties, including appropriate responses to both small and major infractions.
  • To address concerns about Iran’s use of the funds released from restricted overseas accounts, the United States, working with its regional partners, should closely monitor and be prepared to counter Iranian efforts to arm, train, and fund its proxies throughout the Middle East. While the United States and its partners should welcome any genuine Iranian interest in resolving disputes diplomatically, they should remain vigilant against further Iranian efforts to destabilize the region and should mobilize their collective economic resources and military capabilities in a coordinated strategy to thwart any such efforts. A strong U.S. commitment to remain engaged militarily and politically in the region will be indispensable in re-building the region’s confidence in U.S. leadership and in reassuring our partners that the nuclear deal will not adversely affect their interests.

Any negotiated agreement involves compromises and, from the perspective of one party or another, shortcomings. The real and imagined shortcomings of the JCPOA will be on full display as Congress debates the battleground issues and eventually votes on the deal. But despite its imperfections, a careful review indicates that the JCPOA, especially if supplemented and bolstered by the kind of U.S. policies suggested here, will prevent Iran from becoming a nuclear-armed state for the foreseeable future and serve the security interests of the United States and its regional partners. On that basis, it is worthy of support by Congress and the American public.

About the author

Robert Einhorn is a senior fellow in the Arms Control and Non-Proliferation Initiative and the Center for 21st Century Security and Intelligence, both housed within the Foreign Policy program at Brookings.

During his career at the U.S. Department of State, Einhorn served as assistant secretary for nonproliferation during the Clinton administration, and as the secretary of state’s special advisor for nonproliferation and arms control during the Obama administration. From 2009 to 2013, he was a member of the U.S.-Iran negotiating team.

At Brookings, Einhorn concentrates on arms control, nonproliferation, and regional security issues (including Iran, the greater Middle East, South Asia, and Northeast Asia) and U.S. nuclear weapons policies.

Learn more about Robert Einhorn »

Read more on the Iran nuclear deal

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Will the Iran nuclear deal create a more stable Middle East? That all depends—on the United States – by Kenneth M. Pollack

Countering misconceptions about sanctions “snapback” – by Richard Nephew

Iran surprises itself and the world – a Brookings Essay by Suzanne Maloney

Why I’m torn about the Iran deal: Was it worth it? – by Shadi Hamid

Netanyahu and the Iran nuclear deal: A historic mistake? – by Shibley Telhami

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