Last Chance for Iran Nuclear Deal

The assassination last month of Mohsen Fakhrizadeh, a leading Iranian nuclear scientist, has further complicated relations between Iran and the West. US President-elect Joe Biden has maintained that he would rejoin the landmark 2015 Iran nuclear agreement, known as the Joint Comprehensive Program of Action, or JCPOA. But the assassination of the Iranian scientist and Iran’s response to that act have effectively removed the scope for any negotiations over the conditions under which the US would return. The assassination of Fakhrizadeh appears to remove all flexibility regarding the setting of any terms by Biden, leaving the new president with a binary choice — all in or all out. What’s more, this all or nothing decision must be made in a matter of days upon being sworn in. Nevertheless, given the geopolitical risks at stake, Biden seems likely to rejoin the Iranian nuclear agreement, opening the way for increased Iranian oil exports.

From the very start of the negotiations with the US that led to the signing of the JCPOA, the Iranian leadership doubted that the US would live up to its obligations. Following President Hassan Rouhani’s election as president in August 2013, Supreme Leader Ayatollah Ali Khamenei was approached about the new Iranian presidential administration going forward with secret talks with the Americans then being held in Oman. Khamenei gave Rouhani the green light, but only after reminding the conservative wing of Iranian politics about just how pragmatic Iran was about the path forward.

Khamenei was astute in his observations about the Americans. From the start, the US has never understood the Iranian nuclear program. It continues to embrace the flawed notion that Iran, at one time, undertook a covert effort to produce a nuclear weapon. US support for this position was not intelligence driven. Instead, it came from the political need for a narrative that permitted the US and its allies in Europe to advance a policy that would deny Iran its rights, under Article IV of the Non-Proliferation Treaty, to possess an indigenous nuclear fuel manufacturing capability inclusive of the enrichment of uranium. By embracing this theory, the US has not only given credence to allegations regarding possible military dimensions of Iran’s nuclear program, it has failed to understand the political commitment Iran has made to pursuing a robust indigenous civilian nuclear program and its abiding unwillingness to back away from that path.

This US contention that Iran once had, and possibly continues to retain, an undisclosed military dimension to its nuclear program was for the most part sustained by intelligence of questionable provenance consisting of documents, either doctored or outright forgeries, assembled by the Israeli security services and provided to the International Atomic Energy Agency (IAEA) through third parties, including the US. To move forward with a nuclear deal with Iran, the Obama administration had to walk back much of its claims regarding nuclear malfeasance, either dismissing them outright or creating mechanisms designed to hold them in check.

Under the previous administration, the US 2007 National Intelligence Estimate (NIE) for Iran judged “with high confidence” that Iran had halted its nuclear weapons program “in the fall of 2003.” This, of course, left open the possibility that Iran’s military program could, at some point, be restarted, since it never was dismantled. And yet the Obama administration, in its haste to secure a nuclear deal, did not take the logical step of correcting the 2007 NIE by clarifying the fact that there was, in fact, no proof that Iran ever possessed a nuclear weapons program. It should have sought to alter that earlier assessment if all outstanding questions were addressed and resolved. Had this occurred, then the actions of the IAEA Board of Directors in December 2015, which passed a resolution stating that Iran had answered all outstanding questions regarding the possible military dimensions of its nuclear program, would have slammed the door on any post-JCPOA speculation regarding Iranian intentions regarding nuclear weapons.

Instead, the 2007 NIE provided the US with the political cover to pursue a deal with Iran that permitted access to uranium enrichment, while sowing the seeds of the JCPOA’s eventual doom — by stating as fact that a nuclear weapons program had existed. By then doing nothing to confirm the scope and scale of this program, or implementing the means to verify that such a program had been dismantled, the Obama administration kept open a pathway for critics of the agreement to highlight the dangers that existed once the so-called “sunset clauses” of the JCPOA expire. As Amos Yadlin, the former head of Israeli military intelligence recently observed, “[JCPOA] enables Iran to continue developing its enrichment technology, and in the longer term, the ‘sunset’ clause grants full legitimacy to Iran’s unlimited nuclear program and places a nuclear weapon within Iran’s immediate access from the moment Tehran decides to break out to the bomb.”

The fact that Iran never had a military program is moot. Perception creates its own reality, and the perception of Iran’s nuclear program, as presented by the Obama administration in its definition of Iran’s past intent, is that such a program once existed and, if left to its own devices, could re-emerge once the “sunset clauses” of the JCPOA expire.

This fatal flaw in the JCPOA construct is what gave credence to then-candidate Donald Trump’s statement to the American Israeli Political Affairs Committee annual conference in 2016 about the expiration of the sunset clauses: “Iran will have an industrial-sized, military nuclear capability ready to go.” Trump’s proposed solution was not to shred the JCPOA, but rather create the conditions for its renegotiation, with a new agreement that lengthened the time of the sunset clause expiration to 30 years and linked their eventual lifting to Iran’s agreeing to limit its ballistic missile programs and alter its regional behavior. This renegotiation of JCPOA was Trump’s objective in withdrawing from the deal in May 2018.

While Biden has indicated that he will rejoin the JCPOA, he has conditioned this on Iran’s willingness to enter the same kind of negotiations that Trump has been pushing for over the past four years. Iran refused to entertain such a notion during the Trump administration, and it is unlikely that it would do so under a Biden administration. Up until the assassination of Fakhrizadeh, it thus looked like Biden would be playing the same kind of waiting game as Trump has, with the JCPOA gradually unraveling.

Make or Break

However, the assassination of Fakhrizadeh in late November 2020 has dramatically shortened the timetable in which the Biden administration can act on resolving the Iranian nuclear problem. Iran has so far refused to engage in any precipitous reaction that could trigger a deal-killing military conflict with either the US or Israel, both of which Iran blames for Fakhrizadeh’s murder. Iranian government spokesman Ali Rabiei instead declared that the Islamic republic “shouldn’t fall into the trap of linking the assassination to past nuclear negotiations.”

But this does not mean Iran has been silent. Iran’s parliament approved a bill a few days after the assassination that would suspend the enhanced inspection of its nuclear facilities under the Additional Protocol, the last remaining vestige of Iran’s JCPOA commitments, and mandate permanent increases in its uranium enrichment capabilities should relief from oil and banking sanctions not be forthcoming from the European parties to the agreement.

The 60-day timetable attached to this bill gives a new Biden administration little time. While many experts have advised Biden to proceed slowly on Iran, the fact is that if the Iranian bill is enacted by the supreme leader, the JCPOA will be essentially dead sometime in early February 2021. While Iran’s Rouhani has indicated that this entire issue can be resolved by Biden simply signing “a good piece of paper” — by which he means a US return to the JCPOA without preconditions, upon which Iran will return to full compliance under the JCPOA. But this scenario would preclude the kind of improvements Biden seeks to the JCPOA; improvements predicated on the misleading intelligence assessments which still hold that Iran has undeclared nuclear weapons ambitions.

It is do or die time for the JCPOA. If Biden stalls and allows the JCPOA to lapse, he will never get Iran back to the negotiating table. He knows this. He also understands that the pressure that an unconstrained Iranian uranium enrichment program creates on Israel to launch a military attack is real — it was this very pressure that forced the US to negotiate the JCPOA in the first place. In 2015, the US was forced to walk away from its prior insistence that Iran would not be permitted to possess “a single spinning centrifuge” to avoid a war with Iran. Once sworn in as president, Biden will in short order face a similar decision point regarding the JCPOA and its sunset clauses: either accept the deal as it is or pave the way for an Israeli attack on Iran that will inevitably draw the US into a wider military conflict in the Middle East. Given the myriad of other pressing issues, which include rebuilding a US and global economy ravaged by the Covid-19 pandemic, such a conflict is the last thing a Biden administration would want to see happen. As such, the smart money is on Biden agreeing to re-enter the JCPOA without preconditions.

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