Congressional Action on the Iran Nuclear Agreement: A Game Where all Sides Can Win
September 30, 2015
The Congressional fight over the Iran nuclear agreement -- the Joint Comprehensive Plan of Agreement (JCPOA) -- has scarcely ended. The battle over the agreement has left the Congress deeply divided, and it is likely to remain polarized for some years – continuing to disagree until time shows who was right. Supporters of the deal feel the agreement will play a major role in denying Iran nuclear weapons and helping to bring stability to the region. There are also opponents who are trying to find a way to keep the U.S. from implementing the agreement, and many members who continue to criticize the Agreement and the Obama Administration for supporting it.
There may still, however, be important areas where Congress can work together. Advocates want the agreement to be as effective as possible. Opponents want to make sure that any problems or failures are fully and openly addressed. Those who were privately undecided, or who made hard choices that did not always agree with their constituents, want to be seen as doing everything possible to show that Congress has fully exercised its ability to make sure the Administration does not conceal any problems or failures on the part of Iran to comply or that any benefits from the agreement are both real and fully publicized.
Shifting to a Focus on the Agreement’s Potential Near Term Benefits
Put differently, all sides now have a common interest in ensuring Iran does comply with the near-term requirements of the agreement, that it is properly verified, that any problems are made public and fully addressed, and that its implementation gets full Congressional review.
The focus of the debate also must shift to ensuring that the Agreement at least has its promised near term benefits. Both supporters and opponents must go from theory to practice, rather than focus on what might happen in ten or more years. They need to focus on what will actually happen as the Agreement moves towards meeting all the conditions for Implementation Day at some point in the next six to twelve months and how to properly institutionalize it.
It is important for all concerned to remember that much of the criticism to date has focused on what might happen once Iran begins to have more freedom of action some ten years or more in the future, whether Iran could create covert of undeclared facilities some years in the future, or if Iran could use the economic benefits of sanction relief in ways that threatened the U.S. and its allies over time.
Few have argued over the agreement’s potential short-term benefits in reducing Iran’s ability to quickly create nuclear forces. U.S., UN, and EU nuclear sanctions will only be lifted if an Implementation Day occurs in which Iran has actually met the conditions that will radically reduce its current nuclear programs and capabilities.
For the agreement to go into force, Iran must demonstrate that it has taken the following actions:
Enrichment only at Natanz —preventing “uranium path to weaponization”
- Iran currently has about 19,000 IR-1 and advanced IR-2M centrifuges installed.
- For 10 years: centrifuges reduced to 5,060 IR-1. Excess centrifuges stored under IAEA monitoring.
- For 15 years: level of uranium enrichment capped at 3.67%.
- For 15 years: Natanz is Iran’s only enrichment facility.
It is only 11-15 years after Implementation Day that Iran can replace IR-1 centrifuges at Natanz with more advanced ones.
Limits on Enriched Uranium Stockpile — preventing “uranium path to weaponization”
- Iran currently maintains a stockpile of about 10,000 kg of low-enriched UF6
- For 15 years: stockpile kept under 300 kg up to 3.67% enriched uranium hexafluoride (UF6) or the equivalent in other chemical forms (this is a 98% reduction from existing stockpiles).
- Excess sold based on international prices.
- Uranium oxide enriched 5-20% fabricated into fuel for Tehran Research Reactor.
- All other centrifuges and enrichment-related infrastructure will be removed and stored under IAEA continuous monitoring
Limits on Fordow “uranium path to weaponization”
- Iran currently has about 2,700 IR-1 centrifuges installed at Fordow of which about 700 are enriching uranium.
- Converted to research facility.
- No more enrichment or R&D at this facility.
- 1,044 IR-1 centrifuges in six cascades will remain here, but cannot enrich uranium.
Limits on Arak Heavy Water Reactor— preventing “plutonium path to weaponization”
- Iran will redesign and rebuild reactor into lower power research reactor with P5+1 partnership.
- Iran would take out the original core of the reactor; this will become unusable.
- Permanent: Iran will not produce weapons grade plutonium.
- For 15 years: no heavy water reactors in Iran.
- Permanent: Iran ships out all spent fuel from Arak reactor.
Iran and P5+1 agree on joint venture. Transparency— preventing “covert path to weaponization
- By October 15, 2015: Iran has to clear up questions about its alleged past research on nuclear weapons (Possible Military Dimensions, or PMD).
- A procurement channel must be created for monitoring and controlling Iran’s purchase of nuclear related equipment and material. For 20-25 years: IAEA has access to Iran’s supply chain for its nuclear program and has continuous surveillance of centrifuge manufacturing and storage facilities.
- Iran will not engage in activities, including at the R&D level, that could contribute to the development of a nuclear explosive device, including uranium or plutonium metallurgy activities.
- Iran will cooperate and act in accordance with the procurement channel in this JCPOA, as detailed in Annex IV, endorsed by the UN Security Council resolution.
- Iran must provisionally apply the Additional Protocol measures and its parliament will eventually ratify it.
- Iran must permanently agree to: full implementation of modified Code 3.1 of the Subsidiary Arrangements to its Safeguards Agreement.
- Iran must fully implement the “Roadmap for Clarification of Past and Present Outstanding Issues” agreed with the IAEA, containing arrangements to address past and present issues of concern relating to its nuclear program.
- Iran must allow the IAEA to monitor the implementation of the above voluntary measures for their respective durations, as well as to implement transparency measures, as set out by the JCPOA and its Annexes.
Regardless of how members voted on the agreement, few have argued that if Iran fully complied with these steps, it would not have a major impact on Iran’s near to mid-term capabilities.
But, the U.S. must verify, not trust.
Each step needs to be fully and convincing verified by the IAEA, by the new Joint Commission being set up by the Agreement, and by U.S. intelligence. The depth, credibility, and transparency with which this is done will also play a critical role in setting precedents for the future enforcement of the Agreement. It will set precedents for full reporting at both classified and unclassified levels, provide a test and development bed to create institutions that can deal with less obvious areas of compliance that will arise in the future, and establish precedents for dialogue with Iran, and cooperation between the members of the Joint Commission and the P5+1.
From the practical viewpoint of institution building, this will also be a time when the enforcement effort will get maximum attention and resources. A failure to properly fund the enforcement of the agreement will not block it, but it could do immense damage in ensuring that it is effective over time.
Living with an Uncertain Agreement and the Arms Control Duel that Must Follow
Creating the right institutional base, and level of Congressional review, from the start is critical. The Joint Comprehensive Plan of Agreement (JCPOA) is not a perfect document, but no negotiable document ever is. It is complex and some portions are unclear and will have to be clarified and debated. It is also a limited agreement between still hostile states with conflicting strategic goals and priorities, and this inevitably means challenges, debates, and confrontations.
- The enforcement of arms control agreements between largely hostile states is inevitably an extension of war by other means. Everything ultimately depends on how well and how diligently the U.S. and its allies enforce it, and the credibility that a combination of all the JCPOA’s provisions, U.S. and other friendly intelligence efforts, and work by the International Atomic Energy Agency (IAEA) can make it work over time.
- Iran is already the equivalent of a break out state in terms of the ability to build a basic gun device. The race to one crude bomb, however, should not be the test in the face of an Israel with thermonuclear weapons and a U.S. with massive nuclear forces. The test should be the ability to block Iran from creating anything like an effective nuclear force with effective delivery systems and small enough implosion and boosted weapons to be delivered on a missile. If the agreement is judged by these standards, it appears to be much stronger but only if it is clear that the UN, US, and other members of the P5+1 will act.
- No arms control agreement can really bind the future for 10 to 15 years, much less forever. This is particularly true in an area as unstable as the Middle East. The U.S. effort should focus on how to make the Agreement verifiable, enforceable, and adaptable, and not talk about the JCPOA as if change can be avoided regardless of shifts in the regional balance, alignments and security interests, and technology
- From now through Implementation Day to some unknowable point in the future, enforcing the JCPOA will sometimes be an adversarial operation where its value must be judged in terms of all the assets the U.S. can bring to bear – and its willingness to do so –rather than simply than the words of the agreement,
- The value of the Agreement depends in many ways on how its key provisions interact, and understandings reached during the talks that are not fully clarified in the text. Focusing on one provision without examining how it interacts with others makes the partisan debate more strident than it should be.
- At the same time, the Agreement leaves several key related activities to be defined in practice. These include (a) the way in which Iran’s future nuclear procurement is controlled, which in turn is critical to any ability to create new covert facilities; (b) the outcome of IAEA efforts to resolve the Possible Military Dimensions (PMD) that must be addressed by the IAEA Director General to the IAEA Board of Governors by December 15, 2015, and (c) the real world operation of the dispute resolution process which enables any JCPOA participant, to seek to resolve disagreements about the performance of JCPOA commitments.
It would be naïve to assume that all the past debates over the JCPOA, can be altered to focus on the U.S. national interest rather than on partisan politics, the Agreement’s impact on the 2016 presidential campaign, and efforts to secure pro-Israel votes. These are the realities of American political life, and involve partisan and ideological divisions in U.S. politics that will to endure well beyond November 2016.
Nevertheless, both Congressional opponents and supporters of the JCPOA do still have a wide range of options, some of which can be legislated quickly and others over time.
Here are a few examples:
- First, Congress can continue to use the time before Implementation Day to give Iran’s obligations and options for cheating and violation full visibility.
The agreement is complex. It is sometimes nearly opaque or uses words that seem to have far more real world impact than they really have. All the proper caveats and cautions need to be surfaced. Iran also needs to be put on notice that every portion, and Iranian compliance will be under constant review, that the JCPOA’s options are fully understood and that the U.S. as well as the IAEA will monitor them.
- Second, Congress can legislate a requirement for truly demanding reporting requirements that publically expose any hint of Iranian violations, and support such reporting with a requirement for classified reporting that provides a full range of sensitive intelligence data and classified technical analysis to the intelligence committees and a special select committee
The Congress can legislate a quarterly semi-annual reporting requirement for the life of the agreement that requires reporting on every key aspect of compliance as well as Iran’s other key activities: Conventional arms imports and build-up, missile programs and developments, and Iran’s activities to expand it influence and role in the region.
It can confront Iran with a legal requirement that every administration must provide a formal U.S. government public notice within affixed time period for any suspected violation, as well as provide regular classified briefings by the intelligence committees, armed service committees, and foreign relations committees.
The U.S. Congress can use reporting on Iran’s compliance and the effectiveness of the dispute resolution process to force verification in ways that are unclassified and public enough so that Iran has no hope of sheltering behind the politics of diplomacy.
- Third, the Congress can set up a joint committee and/or special subcommittees to focus entirely on the JCPOA and related Iranian security and proliferation issues. The security problems involved are too broad to come under the jurisdiction of any one committee, and require specialized member and staff expertise. A similar body existed to deal with SALT and START and set a clear precedent.
- Fourth, the Congress can establish a Special Inspector General for the JCPOA. Past experience has shown that the U.S. government lacks the ability to provide demanding review and self-examination on a regular basis. The Special Inspector Generals for Iraq and Afghanistan have demonstrated just how critical an independent Special Inspector General reporting directly to Congress can be in forcing the Executive Branch to review its activities, find gaps in its efforts and avoid the kind of bureaucratic politics that can spin failure into success or cover up or ignore key problems.
- Fifth, the Congress can provide dedicated staffing within the House and Senate Select Intelligence Committees to ensure the Congress has the specialized intelligence review capability it will need. The need for access to sensitive data will be as important as the need to protect it.
- Sixth, it can legislate the creation of a Special NIO for the JCPOA and budget line within the national intelligence budget to ensure that enforcement of the agreement is proper supported. Require full “fusion” of intelligence collection and analysis, and cooperation between the branches of the intelligence community and nuclear weapons labs.
- Seventh, it can have the GAO and Congressional Research Service provide independent examinations of the proper options and funding necessary to fully implement the agreement. There is no reason to over-fund the Agreement, but every reason to fully fund every aspect of the staffs and efforts necessary to make it work. This not only includes properly structuring and fully funding U.S. activities within the Executive Branch but in the staff fort the Joint Commission and IAEA. It will be far cheaper to support success than try to correct failure.
- Eighth, the Congress can hold regular hearings on IAEA and U.S. intelligence verification, and require both open source and classified reports.
The Congress can make sure that all the necessary resources and technologies are provided, that all the proper reporting and analysis is done, that the effort is properly funded, and that Iran and other allies both see just how serious we really are. The day may come when trust is an option. The day has already come when verification is vital.
It can also require quarterly or semi-annual independent Administration reporting on the effectiveness of the IAEA efforts, and of the broader mix of NPT, Protocol, and JCPOA limits. This might take the form of a requirement that this reporting be in the form of both a classified and unclassified NIE.
- Ninth, the Congress can legislate special reporting on any case where delays take place in inspection, and the provisions that can delay it up to 24 day or more are involved .
Such a requirement could require a daily report to Congress in unclassified and classified form, make sure no issue ever was dropped or lost visibility, and require the naming of states, entities, and individuals involved. It can require that all of the other tools in the JCPOA, particularly the provision and technology controls be fully reviewed for each delay, and that independent intelligence briefings be provided to Congress within fixed periods of time.
- Tenth, the Congress can legislate that the Administration provide regular updates on both Iran’s compliance with the arms sales, missile, 10 limits and 15 years limits, and an assessment of the impact of the end of these requirements at least two years in advance . This would provide an ongoing special review of the key aspects of the agreement and ensure full review of the impact of the end of key restrictions long in advance.
- Eleventh, the Congress can legislate that the Administration provide an ongoing assessment of Iran’s specific actions in terms of the support of outside state actors, non-state actors, and terrorists with money, arms, advisors, and security personnel and of the impact of the JCPOA in freeing funds that allow Iran to make such efforts , A mix of unclassified and classified reporting would both confront Iran with a constant public and media attention to such actions, and provide a basis for focused action in the future – rather than expressions of broad fears and possible worst cases.
- Twelfth, it can require regular reporting on the critical procurement channel of the JCPOA. This aspect of the agreement is more critical to limiting Iran’s future ability to create new covert facilities than the timing and nature of challenge inspections since it limits future capability rather than focuses on what Iran has already done. As an analysis by Harvard’s Belfer Center notes,
“The JCPOA establishes a Procurement Working Group under the auspices of the Joint Commission with responsibility for reviewing and approving proposed sales of certain nuclear-specific and nuclear-related dual use items, equipment, materials, and technology (specified on Nuclear Supplier Group control lists) from any state to Iran. The Working Group decides by consensus (meaning any state could block a sale) and remains in operation for 10 years. The agreement sets out procedures and a timetable for reviewing requests and provisions for verifying end-use of approved transfers. The procurement channel is intended to track Iranian acquisition of nuclear-related items for use in undeclared activities, but the procurement channel has several limitations that could weaken its effectiveness and lead to disputes. For example, Iranian purchases of nuclear-related dual use items for its ballistic missile and conventional military programs do not have to be approved by the Procurement Working Group.”
Giving this process maximum transparency, focusing on every indicator of a dual use of nuclear weapons related effort, and adding a requirement the U.S. add an assessment on possible impacts on Iran’s missile and other military capabilities could have a major impact in reducing any risk that Iran tried to manipulate the time windows and conditions for IAEA of new suspect facilities.
- Thirteenth, the Congress can legislate new sanctions on firms or state entities that do sell critical conventional arms and missile technology. And/or, it can set reporting requirements that publically identify the seller and cover not only whole weapons but critical components and technologies . It may be enough to simply embarrass sellers – who will have to deal with the Arab reaction – but the United States can certainly reinforce the five years limits to arms sales and eight year limits to missile sales with a permanent ban on exports and investment by foreign companies and entities that sell such components, or fines and tariff equivalents.
The Congress could also build on its failed effort to require a meaningful annual report on the Military Power of Iran, and demand the same kind of substantive report on all the aspect of Iran’s military efforts it receives in the annual assessment of Chinese military power. The Congress sometimes set requirements it fails to meaningfully define, fails to demand reports with any real content, or focuses on the cost of reporting to the exclusion of content. This, however, is an area where strategic communications are vital, where the full range of Iranian actions affect a wide range of key allies, and where any positive shifts in Iran’s behavior needed to be recognized if there is to be more substantive progress in U.S, and Iranian relations.
- Fourteenth, Congress can pass some form of “Snap Back” legislation to make it unambiguously clear to Iran and any entity that does business with Iran that a violation of the agreement will reestablish sanctions The Congress can legislate that the United States will not only resume sanctions if Iran is caught in violation, but also adapt and modify existing sanctions in ways that will both pressure and incentivize other nations to join the United States in enforcing them. A carrot and stick approach that offers supporting states trade and tax incentives and non-compliant states penalties would be more effective than relying on penalties alone.
This will require careful wording, the inclusion of waiver provisions to give the President some flexibility in enforcement, and possibly talks with the EU and our European allies. But, it will be clear to Iran that it cannot simply wait out the agreement or hope the United States will not react to a violation. This will also reassure Israel and our Arab allies.
At the same time, The Congress should avoid an all or nothing approach to both the JCPOA and a modified version of U.S. sanctions. The punishment should fit the size, nature, and certainty of the violation. The JCPOA already permits this, although it is not fully explicit in making this clear. All U.S. legislation and regulation should do the same. The goal should be to change the behavior of Iran, other states, and non-state actors, not punish.
- Fifteenth, as noted earlier, the Congress can call for the United States to offer both Israel and its Arab allies more formal security guarantees, and it can offer its Arab allies “extended deterrence” in some form . The United States needs to build trust on the part of its regional allies for many reasons and this is an ideal opportunity.
The U.S. did not offer the Gulf states or Gulf Cooperation Council (GCC) new formal security agreements at Camp David, but it can do so now. The US can state that if Iran violates the agreement, it will provide extended deterrence of the kind it once provided to Europe to meet the Warsaw Pact theater nuclear threat. It also can establish a formal agreement to provide advanced theater missile defenses to the GCC states, and possibly include Turkey in both the extended deterrence and missile defense offers.
The United States does not need to provide such assurances to a nuclear-armed Israel, but it can assure Israel that it will continue to help it maintain a decisive edge in weapons and missile defenses. It can offer anew 10-year MOU on security, and can establish an extended long-term missile defense cooperation agreement with Israel to continue the programs already underway.
A “Win-Win” Approach to Partisan Politics
It will take some tolerance on the part of both the White House and Republican leadership to work out such legislation, and make sure it takes a practical form without dangerous hair trigger provisions, a lack of necessary flexibility on the part of the President, or constitutional challenges. Inevitably, it will mean both gains for the Congressional Republicans, and their willingness to compromise with the Administration and Congressional Democrats.
It does, however, seem far better to focus on making the agreement work than to focus a veto fight or partisan divisions that accomplish nothing in the U.S. interest. From a practical political viewpoint, both sides in this partisan debate should also ask just how much damage they will do to the credibility they have and the public support they win by dividing so clearly on self-seeking partisan lines at the expense of the national interest. One does not win an election by shooting oneself in the mouth.
Most importantly, as long as the agreement is in force, the key issue will be for the U.S. to show Iran there are no good alternatives, there will be no time at which the agreement’s goals will be forgotten, and that the United States will stand by its allies. Not every form of partisanship has to be destructive. There are some games where both sides can win.
Anthony H. Cordesman holds the Arleigh A. Burke Chair in Strategy at the Center for Strategic and International Studies (CSIS) in Washington, D.C.
Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).
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