Sunday, August 02, 2015

The Art of the Deal

So let me slog through the July 14, 2015 Joint Comprehensive Plan of Action (the Iran nuclear deal) and take notes on my impressions.

I admit I'm biased against the deal based on the history of the Obama administration, on its history with Iran, and based on its general deficiency in wanting to defeat enemies or even recognize enemies.

The outline of a deal has long seemed obvious to me: Iran would pretend not to have nuclear weapons programs; and we would pretend to believe them.

Yet our State Department officials are sentient beings, so surely not even they could construct a deal without any merit, could they?

And I refuse to descend into territory of the Bush Derangement Syndrome who could not grasp the simple fact that the world's intelligence agencies fell for Saddam's WMD bluff, and that Bush did not lie us into war with Iraq. So while I may think President Obama is dangerously wrong, I assume he believes the deal is good for us.

This could be appeasement of Iran--which was at the time a proudly defended policy to prevent the Nazis from starting a war and considered wise, remember.

I'll also admit that a policy of appeasement can be appropriate if you know you can't stop your enemy now and never forget your partner is an enemy, and never stop seeking to use the time gained to build the ability to resist and defeat that enemy.

The Iran deal fails at every step of that justification, however, from need to focus.

Anyway, I owe it to myself not to rely on the reputation of those who support and oppose the deal to shape my views in totality.

What of the deal itself? It's a long journey of 159 pages, so let's start. I'll note things that stand out to me. So this isn't a detailed technical analysis, which lies beyond my expertise.

On page 1 we already have a problem. They say that this deal will "contribute to regional and international peace and security."

Unless Iran ceases support for a whole lot of violent actors in the region, this is nonsense.

Let's just stick to a nuclear agreement that ensures that Iran doesn't under any circumstances "seek, develop or acquire any nuclear weapons."

I assume that if North Korea develops the pieces of nuclear weapons, based on past agreements with Iran, that means that as of right now Iran obviously isn't developing anything and isn't acquiring anything, and isn't currently (or moving forward) seeking anything, that this vow is not inconsistent with getting within a wrench turn of having nuclear weapons.

But I'm suspicious that way.

Page two says the agreement will produce a comprehensive lifting of UN, multilateral, and national sanctions related to Iran's nuclear program. I have no doubt this is true.

Page two ends with the provision that the full implementation of the deal will ensure exclusively peaceful nuclear program in Iran.

So we have two caveats. If fully implemented. And note that the deal expires. So only within the time frame of a fully implemented deal will Iran's nuclear program be peaceful.

Page 3 has an interesting part that says the parties reaffirm their commitment to the purposes and principles of the UN Charter.

Let's look:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2.To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3.To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and
4.To be a centre for harmonizing the actions of nations in the attainment of these common ends.

I'm not sure what to make of this other than to say that I don't believe Iran believes one word of that article. If they did, we wouldn't even need this deal, no?

Page 3 says that parties will act in good faith consistent with the letter, spirit, and intent of the deal. But the only specific prohibition is aimed at the non-Iran parties who may not use rules and procedures to replace sanctions. Apparently only Iran is fully trusted with the general statement.

Page 4 says Iran is part of the monitoring body (the Joint Commission). We'll have to wait for the relevant annex to see what mischief Iran can achieve by being on the monitoring body of a commission essentially targeting Iran as a (until the deal goes in effect, of course!) nuclear-weapon-seeking state.

Page 4 gives the IAEA the job of monitoring and verifying the nuclear measures of the deal. This is also the place where the side deals are acknowledged as none of our business, since it says that "all relevant rules and regulations of the IAEA with regard to the protection of information will be fully observed by all parties involved."

So what happens in IAEA agreements with Iran stays in those agreements. What could go wrong other than getting a head of the IAEA who runs interference for Iran's nuclear programs the way ElBaradei did when he was in charge?

Page 5 apparently requires us to cooperate with Iran's new civilian-only nuclear programs. Great.

Page 5 says that 10 years after "adoption day" the UN Security Council terminates consideration of the Iran nuclear issue. So from that point on, Russia and China--because of their veto--can block any new consideration by the Security Council of Iran's nuclear status.

Page 6 says that enrichment limits will be eased in 8 years. Iran can't accumulate enriched uranium.

I assume they can accumulate uranium ready for enrichment.

Page 6 says that Iran will phase out their early centrifuges in 10 years. After 10 years of allowed research using the IR-4, IR-5, IR-6 and IR-8 centrifuges, why would Iran want to keep them? We'd have been better off to limit Iran to the IR-1 centrifuges, no?

Also, Iran is limited to 5060 installed IR-1s while the rest are stored under IAEA monitoring. We'll have to wait for Annex 1, but let's assume this means the centrifuges will remain in Iran.

Also, perhaps that annex will explain how Iran is allowed to continue testing the two most recent centrifuges and can test up to 30 of them after 8.5 years. Which is it?

Page 7 continues the confusion. Iran can manufacture advanced centrifuges. After 8 years they can produce the two most advanced centrifuges (without rotors) and store them at Natanz under IAEA monitoring "until they are needed under Iran's long-term enrichment and enrichment R & D plan."

Iran is restricted to uranium enrichment activities for 15 years at only their Natanz facility.

Iran could build other facilities, it seems, in preparation for year 16, without violating the agreement.

Fordow can be used for enrichment research as long as it doesn't use nuclear material. I assume Iran can learn a lot from this that is applicable to nuclear technology. And I guess the West is supposed to help since we commit to "international collaboration in the form of scientific joint partnerships."

Page 8 limits Iran's 3.67% enriched uranium hexafluoride but allows Iran to down-blend to natural uranium levels above the 300 kg. limit at unlimited quantities.

Also, enriched uranium in fabricated fuel assemblies from Russia or other sources aren't counted against the limit.

Why is Russia specifically mentioned? I wonder how secure those assemblies from Russia are? Can they can be popped open to access that enriched uranium rather easily?

The Arak reactor will be redesigned and rebuilt. Spent fuel produced will be exported for the lifetime of the reactor.

Where will it be exported? And doesn't the deal expire in 10-15 years? How does a lifetime limit fit with the end of the deal that leaves Iran unconstrained?

Page 9 says that Iran will not accumulate additional heavy water for 15 years. Excess will "be made available for export." No word on what happens if there are no buyers at whatever price Iran sets.

Spent fuel from all reactors will be exported. Well, Iran "intends" to do that. We'll see.

After 15 years, Iran does not "intend" to reprocess spent fuel. Intentions change.

Huh, the deal acknowledges the role of Iran's parliament in applying additional protocols. I can hardly wait for the acknowledgment of our Congress' role!

Page 10 says that Iran will clarify past issues that the West has had with Iran's nuclear weapons programs. This will be done with the IAEA by later in 2015. Remember that this is done with the IAEA, which does not have to reveal the contents to us.

Are we to be comforted or worried when the IAEA releases a statement that "Iran has clarified all past and present outstanding issues of concern regarding their nuclear programs."

The IAEA has other monitoring jobs. For 25 years, they will monitor uranium ore concentrate produced by Iran. That seems like a loophole to me.

There is 20 year containment and monitoring of centrifuge rotors and bellows.

But IAEA ability to resolve issues of access lasts only 15 years. As defined in Annex 1. That must be one heck of an annex.

Iran pledges not to engage in activities that could contribute to the development of a nuclear explosive device.

No word if they can accept the gift of such devices from North Korea or some other state that Iran might subcontract the job to.

Then we get a lot of stuff about lifting past sanctions. I have no doubt this will be carried out.

By page 18 we're past that stuff.

Starting here we find the milestones of the deal: Finalisation Day: the day the deal is completed; Adoption Day: at latest, 90 days after the UN Security Council approves it (wait, doesn't Congress have a say? Apparently not), at which point deal participants have to make arrangements to implement their commitments; Implementation Day: that's the day America and the EU certain actions specified in annex 5 and which takes place simultaneously with an IAEA report verifying Iran's implementation of nuclear related measures of the annex (what? no provision for Iran failing to comply? Simultaneous? We don't even get a week to reconsider based on what Iran does or does not do?);  Transition Day: no later than 8 years after adoption day, when America and the EU take certain actions  in annex 5 (sections 20 and 21) and when Iran will ratify the additional protocol (consistent with the parliament's role!; and UN Security Council resolution Termination Day: ten years from adoption day--unless previous resolutions are reinstated (hello, Russian and Chinese veto power) when the UNSC gets out of the Iran nuclear containment day--see annex 5 again (section 25).

Not mentioned are Holy Crap Day: when we realize that Iran has done as thorough job as North Korea in getting around the four corners of the deal to go nuclear; Proliferation Day: when Saudi Arabia, Turkey, and Egypt announce their nuclear weapons status; and Judgment Day: when the regional nuclear war commences.

At page 19 we start the dispute resolution part--as if the provisions on obeying the spirit of the intent of the deal will be disputed!

If a party believes the other side isn't meeting their commitments, the party can refer the issue to the joint commission. There is no word on how long a dispute should last before such referral. I assume this could be months.

Once referred, the commission has 15 days to resolve the issue, unless by consensus the time is extended. No word on limits on that. I assume this could mean months, too.

After the commission has considered the issue and the issue is still not resolved, parties can refer the issue to the Ministers of Foreign Affairs. This can apparently be parallel to joint commission consideration rather than sequential. How likely is that?

The ministers have 15 days to resolve the issue, unless there is consensus extension. Again, months are possible to give them time to peacefully resolve a highly technical issue that is surely just a difference of opinion.

Then the issue can go to the Advisory Board, consisting of one member appointed by each side of the dispute and one "independent" member. No word on how that is decided. Please God, tell me Russia is not involved in that determination. That board has 15 days to issue a non-binding opinion.

If, after this 30-day (at least) period the issue is not resolved, the joint commission (which includes Iran, remember) has 5 days to consider the non-binding opinion.

If a party believes the issue is not resolved, the complaining party can deem this a "significant non-performance" and cease performing any or all duties under the act.

So Iran could complain and withdraw after getting the cash; and we would have to ponder whether, after giving Iran the cash, it is worth it to risk Iran ending the deal in retaliation for our decision to cease performing duties.

Page 20 has the interesting part on "snapback" sanctions. First off, no already gained benefits will be lost by Iran.

This provision says that the UNSC has 30 days to vote to continue lifting sanctions or the old sanctions resolutions are reimposed, unless the UNSC says otherwise.

Further, any lawful contracts signed are not retroactively cancelled. So unless Iran is clueless, they will lock in long-term deals that will survive the reimposition of sanctions.

Also, the deal says that Iran will consider any reimposition of sanctions as grounds to abandon the deal in whole or in part.

And let me add a question I've asked before. Can the United Nations charter be amended by this deal to carve out an exception to the veto power of the 5 permanent members of the Security Council?

Here's what the Chapter V, Article 27 of the UN charter says about the veto:
1. Each member of the Security Council shall have one vote.
2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.
3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

Because I can see the Russians or Chinese objecting to the whole notion that UNSC resolutions can be reimposed after 30 days of inaction by the Security Council. What do we do when the Russians and Chinese (probably correctly, but it has been a long time since I had an international law class) argue that this deal provision is invalid and that no sanctions resolutions can go into effect without 9 votes, including the concurrence of the five permanent members, and they will not go along with it?

That's the deal. At page 21 we get to the annexes.

Here's an interesting provision in Annex 1 about the redesign, safer Arak reactor. It will be designed not to produce weapon grade plutonium in normal operation. Pray tell, in what type of operation can it produce weapon grade plutonium, how hard is it to shift to that type of operation. and could the IAEA detect temporary changes in operation?

The calandria (a Canadian-designed reactor) will be removed from the existing reactor under construction, kept in Iran, and filled with concrete to make it unusable. I assume filling it with concrete does not make it unusable even if it takes time. Why doesn't the agreement include destroying the calandria?

On page 22, it is noted that the West will help build the new Arak plant. Although Iran is in charge of the construction. How nice.

On page 23, Iran gets to keep the fuel for the current Arak reactor until the new reactor is built.

On page 24, spent fuel from the new reactor must be exported within a year of unloading.

On page 25, it says that Iran intends to ship out all spent fuel. There's that word again. Let me note that I fully intend to marry Summer Glau one day. Reality could be a real buzz kill.

There are a whole bunch of intend clauses on spent fuel reprocessing.

On page 26, Iran commits not to produce, seek, or acquire separated plutonium, highly enriched uranium (defined as 20% or greater uranium 235), or uranium 233, or neptunium 237 for 15 years.

Page 27 has the provision on using stored centrifuges to replace failed or damaged ones. No word on what happens to the "failed" or "damaged" centrifuges, although the IAEA is supposed to confirm that status "through the established practice.". I assume they could be repaired and installed elsewhere as long as nobody looks too hard.

Page 38 mentions the "Additional Protocol" to its "Safeguards Agreement" and "Modified Code 3.1 of the Subsidiary Arrangement to Iran's Safeguard Agreement." I hate references. Lord knows what is hidden in them.

Page 39 excludes Americans as part of the IAEA inspectors since only countries with diplomatic relations with Iran may be used. I assume this will be the administration excuse to resume diplomatic relations with Iran. Why else would we agree to only allow inspectors from countries willing to have diplomatic relations with Iran?

At page 42 we get to access to nuclear facilities. The section starts out by saying access shall be requested "in good faith, with due observation of the sovereign rights of Iran, and kept to the minimum necessary to effectively implement the verification responsibilities" under the deal.

Who decides good faith, what doesn't interfere with sovereign rights, and what the minimum is? These sound like multiple grounds for Iran to halt inspections.

If we think there are unlawful activities or materials or undeclared facilities, the IAEA has to tell Iran the basis for the concerns and request clarification. No time limit is mentioned for getting clarification.

If the clarification doesn't resolve the IAEA's concerns--not our concerns apparently, just the secretive IAEA's--the IAEA may request access to the location and provide Iran with reasons in writing and make available relevant information. May? Not must? What is relevant? The name of whoever provided the information? The type of satellite that spotted something? Doesn't this just give Iran information to refine their ability to avoid detection?

On page 43, Iran can propose an alternative to site visits, which should be given due and prompt consideration! Seriously?

Ah, the first time frame. So that doesn't include the time for clarification of the concerns expressed to Iran. If the absence of unlawful materials or activities cannot be verified within 14 days of the IAEA original request for access, Iran and the IAEA have to agree to a means to resolve the dispute.

And I'll ask whether this will morph into the need for the IAEA to prove there is unlawful materials or acclivities, the way Saddam got the world to reverse his WMD obligations under the 1991 ceasefire.

Anyway, if following that 14-day period, the IAEA and Iran can't agree to means to resolve the dispute, a vote of 5 out of 8 members of the Joint Commission (one each from France, Germany, the United Kingdom, China, Russia, the United States, Iran, and the European Union) would approve advice on means for resolving the IAEA concerns.

China, Russia, and Iran will vote as a bloc, meaning Iran only has to bribe one country to abstain (coughfrancecough).

The commission would have 7 days for this step and the Iranians would have 3 days to implement the means.

So that's the 24 days we keep hearing about for access to nuclear sites. I'm still not confident that clarification efforts won't suspend that time. Lord knows how long that can last. And that is only if the IAEA decides to try to gain access to the site. They don't have to do that and we can't make them try. [I amended this to include clarification within the theoretical 14-day limit, which hadn't been clear the first time I read through it.]

On page 45 there are a number of things that Iran can't do regarding building a nuclear explosion device. We stopped detecting such activities many years ago, which leads me to wonder if Pakistan or North Korea provided that material to Iran, so there is no need for a program to design such a nuclear explosion device.

Annex 2 sanctions relief provisions start on page 51. Have no doubt they will be followed. They go to page 135. So I guess you can see the emphasis of the deal--sanctions relief gets well over half of the deal.

Annex 3 is the part where France, Germany, the United Kingdom, China, Russia, and the United States cooperate with Iran on civil nuclear development. Call me crazy, but I think that training Iranians on any part of nuclear fission will allow Iranians to take that knowledge to the military side when they choose to do so.

Oh, and we promise to help Iran with building up their security for nuclear facilities and systems. I guess Iran gets all the air defenses they want and we have to help Iran fend off Israeli cyber (and other) efforts to damage Iranian nuclear programs. That's nice. I feel all partnerish already.

Annex 4 begins on page 144 and establishes the Joint Commission. The EU representative is the commission coordinator. The commission meets quarterly or within a week of the receipt of a request by a commission member. So that's a built in place for delay right there. Lord knows how many stamps and signatures will be required to state that a request has been officially "received."

On page 147-148, we find that Joint Commission work is confidential and may not generally be shared unless the commission decides otherwise, which must be by consensus unless specifically stated otherwise. Remember that Iran is part of the commission, so Iran has veto power unless otherwise specified (as in the access part where 5 votes are necessary). Votes are not public unless a recorded vote is requested.

On page 148, we find that the EU representative does not vote on nuclear-related transfers and activities in Annex 6. Which means that France, Germany, the UK, and the US need the vote of Russia, China or Iran to pass something on this. Interesting.

Or it means Iran, Russia, and China need France and another vote. So it's good to have the EU person out.

A Procurement Working Group is the body for this transfer work. It is made up of France, Germany, the United Kingdom, China, Russia, the United State, and Iran.The EU person is the coordinator but as noted doesn't participate in nuclear transfer decision-making.

Page 152 starts the working group on lifting sanctions on Iran. Again, have no doubt that will move along smartly.

Page 153 begins the much-mentioned annex 5 on the implementation plan.

And at page 159, that's it. Say? Where is annex 6?

So that's it. If Iran was trustworthy, any deal no matter how brief could be good enough.

The complexity certainly gives Iran plenty of room to argue with their Russian and Chinese friends that disputes are "technical" in nature. France might go along with that, depending on whether or not checks have cleared.

And you have to believe that Russia and China think that it is in their interest to prevent a nuclear threat to America, Israel, Saudi Arabia, and Europe from developing by their participation in this deal.

Nothing I read here makes me think that the usual suspects for this deal are correct in supporting the deal nor does anything make me think critics of the deal are refusing to recognize a good deal.

I know, you only make peace with enemies. That's lovely bumper sticker-level thinking.

But sometimes clever enemies use negotiations to try to achieve victory when they know other means will fail. Iran will go nuclear with this deal when the deal ends and perhaps before then if they get impatient and find they can push the limits of the deal without the West forcefully responding.

So Iran learns the nuts and bolts of enrichment and nuclear technology in general, gets lots of money, continues to sow chaos in the Middle East, is allowed to buy weapons again, and at the end of the deal gets to walk away from UN scrutiny about their nuclear programs.

Countries that worry about a nuclear-armed Iran are now on (at best) a ten-year countdown clock to get their own. Think Saudi Arabia, Turkey, and Egypt.

Unless somehow this transforms a nutball regime into a normal state, Iran becomes far more dangerous. And the region becomes far more dangerous.

Not shockingly, Iran's Rouhani feels they achieved their objectives:

In a national address late Sunday, he says the accord recognizes Iran's right to enrich uranium and lifts international sanctions.

And this is Nobel Peace Prize worthy?

I don't like this deal. Congress should reject it. And pass a law to create a special negotiator for Iran denuclearization to take over the job from Kerry, who is clearly not up to the task.

UPDATE: Hanson has it right:

The Iran deal is not Munich, but the same naiveté, vanity, and foolishness of Western leaders is close enough to warn us about what happens next. And it will not be good.

Have a super sparkly day.