Memo to 2016 Presidential Candidates: How to Fix the Iran Nuclear Agreement

Friday, August 21, 2015

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Congress will shortly vote on a resolution of disapproval on the Iran nuclear agreement (formally the Joint Comprehensive Plan of Action, or "JCPOA"). Whether you are for or against the agreement, whether you have promised to rip it to shreds on your first day in office, or not, its aftershocks are going to reverberate throughout your presidency.

It is obvious to those of us who have spent weeks carefully studying the JCPOA's fine print and the expert analysis written by the deal's opponents and proponents that on the two most important tests to our national security the JCPOA does not: 1) prevent Iran from ever building a bomb; and 2) provide adequate deterrents if Iran commences a grinding, grueling effort to cheat & retreat. Consequently, the agreement falls quite short of its Broadway billing.

While the agreement is what it is and is likely to survive a Congressional vote of disapproval there is much you can encourage President Obama and Congress to do before you are elected to improve the agreement's chances of fulfilling America's national security objectives.

As I note below, there is a hidden minefield of national security challenges in the JCPOA. President Obama has worked hard to secure this deal, so he should be more open-minded about what negotiations did not achieve and commence his own repair job in order to reduce those national security threats. But the President seems quite content with his handiwork and has not evidenced an intent to take a presidential glue gun to fill in the agreement's gaps.

"Never Allowed" vs. "Never"
In his strikingly underwhelming American University Speech on August 8, President Obama played fast and loose with what the JCPOA actually accomplishes by proclaiming: "Under its terms (referring to the JCPOA), Iran is never allowed to build a nuclear weapon." True. The agreement never allows Iran to build a bomb. But Iran was never allowed to get as close as it is to the bomb today and yet, it is just two to three months away from a "breakout." This is not a semantical gyration.

Perhaps the President was being more forthright when he told NYTimes columnist Tom Friedman several weeks before his AU speech: "Judge me on one thing: does this deal prevent Iran from breaking out with a nuclear weapon for the next ten years...?" In other words, the JCPOA delays -- perhaps by 10 - 15 years Iran's nuclear bomb making program (if Iran does not tear up the deal first). However, it does not stop Iran from ever acquiring a bomb as the President allegedly would like you to believe in his AU speech. Big difference!

I share the President's aspiration to rely on the JCPOA as a foundation to delay by 10-15 years Iran's bomb-making potential. However, if there are initiatives lawmakers can now consider to improve upon the JCPOA's shortcomings by preventing Iran from ever getting a bomb and deterring it after the expiration of the JCPOA, why not work toward that objective with Congress on a bipartisan basis before Iran is able to break out of its shackles?

In ten years, President Obama will be long gone and after 15 years all physical constraints preventing Iran from producing highly enriched nuclear material are lifted. Consequently, your successor may face an unshackled Iran determined to resume where it left off in 2015.

What should you do to avert that outcome?

A Credible Alternative to the Deal? Unfortunately Not!
Even though the JCPOA is a tin Lizzy I see no credible alternative to it on the horizon. I have searched and soul-searched. I wish you and Congress could have been given a choice between Tide and Cheer, but President Obama has left you with the diplomatic equivalent of a bar of soap and a washboard instead. Scrub you must!

Members of Congress who are opposed to the deal - such as New York's Senator Schumer and New Jersey's Bob Menendez - believe the P5+1 nations will be compelled under an American rejection to regroup with Iran in order to drive a harder bargain.

If I believed for one second negotiations could be reconvened under the pointed gun of an American rejection I would be all for it. But that is not in the cards. And try as you may once inaugurated to jawbone our allies back to Vienna, they will not go back - they have already blessed the agreement and so has the United Nations Security Council - however prematurely courtesy of the Administration.

Whatever respect our European allies may have for you, or empathy for your unhappiness with this undesired inheritance, they will have already commenced implementing it. And if they won't return to Vienna you can be certain neither will Iran even under re-imposed unilateral American sanctions. It is the United States that will be left out in the cold - creating the very uncertainty about our capacity to deter Iran that is best avoided in order to maintain America's leadership against an unshackled Iranian terrorist regime.

A Congressional Rejection Effectively Takes All Options Off the Table
Moreover, in the event the JCPOA is rejected by Congress don't count on President Obama - busy licking his wounds from the defeat of his legacy achievement -- ordering a U.S. military strike against Iran's nuclear infrastructure for incrementally testing the resolve of our allies who signed on. Iran would have to actually be caught testing a bomb to force this President's hand.

Given Iran's penchant for cheating on the IAEA, it is highly likely that in your first term the first tell-tale challenges to the vaunted inspections regime will occur. What then? All the more reason why you will need to have in place the most effective deterrents possible to dissuade Iran's regime from daring to test our resolve.

Propose A Congressional Authorization to Use Military Force Against Iran. Between now and 2030 when the JCPOA snap-back sanctions are the only multilateral deterrent to punish Iran for producing highly enriched uranium or worse, crossing the bomb-making threshold I recommend that you call on Congress to authorize you and future presidents to use whatever means necessary, including the use of military force, to prevent Iran from building a bomb.

This authorization could take the form of a new joint Congressional resolution that is appended to the renewal of the Iran Sanctions Act (see below), or any other implementing legislation that the Obama Administration requires to implement the JCPOA. Iran must know NOW that the U.S. will NEVER permit Iran to build a bomb so long as Iran is ruled by its revolutionary Shiite theocratic military dictatorship. If and when Iran establishes cordial diplomatic relations with Israel, give me a call.

A Joint U.S. - European Alliance Declaration of Intent
Britain, France, and Germany are also signatories to the JCPOA. It is not America's job alone to stop Iran from building a is their duty, as well. Why should our allies benefit from the new trade they will enjoy with Iran once sanctions are removed without sharing the burden of enforcing the JCPOA, as well? What if the snapping back of sanctions fails to dissuade Iran from violating the JCPOA? I recommend you declare it your intention to secure a new joint alliance declaration by which Iran is on notice that not just the U.S., but the JCPOA's other European signatories, will use military force, if necessary, to prevent Iran from building a bomb even after the JCPOA's expiration. Iran must be placed on notice that our partners are prepared to resolutely act jointly with us.


Snap-Back Applies Only For "Felony" Level Violations
President Obama also stated in his AU speech: "If Iran violates the agreement over the next decade ALL OF THE SANCTIONS (my emphasis) can snap back into place." This, too, is a distortion of the "snap-back" penalty. Sanctions can only be "snapped back" if Iran commits the equivalent of a first degree murder felony violation - openly and convincingly -- to trigger the Security Council snap-back mechanism.

Caveat Emptor. Lesser Iranian offenses do not trigger the JCPOA's snap-back provisions. "Lesser" JCPOA violations are relegated for evaluation to a future "Joint Commission" or an outside "advisory board." There are only vague understandings, as I discuss below, what punishment Iran will endure for "serious crimes and misdemeanors" - type violations - a critical JCPOA deficiency in dire need of rehab.

Remedying "Misdemeanor-Level" JCPOA Violations
What if Iran is suspected of, or actually caught committing "run of the mill" violations of the deal that do not rise to the level of a full-fledged snap-back first degree violation? So-called "creep & retreat" violations are inevitable to test U.S. resolve. President Obama devotes much energy touting the deal's verification procedures rather than on the price Iran would pay for toying with the verification regime. Iran must be made to pay a prohibitive price for ANY violation as a deterrent to further illicit conduct.

Mark my word, there will be no triggering of the "capital punishment" snap-back sanctions if Iran is begins playing low grade cat and mouse games with the IAEA. There are no snap-back sanctions if IAEA inspectors catch a couple of centrifuges mysteriously back where they do not belong. The list of potential "misdemeanor" infractions is endless, but the agreement fails to address Iranian misdemeanor-type "misbehavin'."

And while the deal delegates to a "joint commission" responsibility for defining penalties for these types of infractions (which in turn may then refer the alleged violation to their foreign ministers and/or then to an outside "advisory board") make no mistake about it the Obama Administration has zero intention of scuttling the deal even if Iran is actually caught cheating and retreating for so-called "lesser" violations.

I can just hear John Kerry refer to them as "technical violations."

Amending the JCPOA to Remove Iran's Alibi to Cease Compliance. You are likely unaware that Mr. Kerry agreed to two provisions in the agreement (Sections 26 & 37) by which Iran declares its intent to tear it up if any sanctions lifted are re-imposed. "Iran will treat that as grounds to cease performing its commitments..." under the JCPOA. It is a way for Iran to threaten to walk away and resume its nuclear program if Iran cheats and is caught doing so. Hmmm...who will have the leverage then??? 

Neither Mr. Kerry nor President Obama have offered any explanation why they agreed to enshrine in a deal whose entire deterrent is the re-imposition of sanctions a provision by which Iran asserts a right to abrogate the deal if sanctions are snapped back.

Of course, if and when Iran triggers the deal's snap-back sanctions penalties it is likely that Iran will have already benefited from the lion's share of sanctions relief. It smacks of enabling Iran to "get its cake and eat it, too!"

This is a recipe for disaster.

A meat cleaver has to be taken to Sections 26 and 37 of the JCPOA. Iran must have no alibi, much less a provision enshrined in the agreement, which absolves it of its obligations in the event any sanction is reimposed. What was Kerry thinking?

Broken Windows" Sanctions Enforcement.
The controversial policing theory of "broken windows" helps when it comes to holding Iran to account for breaching any aspect of the deal. ANY violation of the agreement must trigger a new re-seizure or assets and the reimposition of sanctions. None of this cheat and retreat stuff, or endless passing the buck around as the agreement enshrines. If the IAEA inspectors report a violation - by golly it is a violation. Why must there be so many intermediaries to judge whether the IAEA is factually accurate...they have no more expertise than the IAEA!

You should urge Congress to demand that President Obama provide it no later than December 31, 2015 a detailed account how the U.S. and its NATO allies will redress any Iranian no matter how minor. The JCPOA must have an equivalent of Title 18 of the U.S. Code (Crimes & Punishments) making it crystal clear to Iran the price for any culpable violation of the deal.

Advocate an Extension of the Iran Sanctions Act Until 2030
The Iraq Sanctions Act (ISA) which imposed U.S. economic sanctions on Iran is set to expire in 2016. Under the JCPOA President Obama would suspend sanctions imposed by Congress under the ISA, but the sanctions would remain law in case Iran violates the deal and the president needs to "snap-back" U.S. unilateral sanctions on Iran. The Obama Administration (consistent with its "blink first" approach on all things Iran) claims that renewing the ISA that expires in 2016 is premature.

The Administration's mindset on Iran is deeply troubling.

It is so afraid of angering the mullahs that it won't commit itself on the record now to a re-authorization of the ISA. You should call on the White House to get out of its defensive crouch and declare its intent to support re-authorization of the ISA.

Fix the Lifting of the Arms and Missile Technology Embargoes
The JCPOA lifts the international arms import embargo against Iran in 5 years (2020), and the global prohibition against missile technology imports after 8 years (2023). Mr. Kerry admitted that the snap-back sanctions DO NOT apply to a violation of either embargo.

So just to be clear. The JCPOA lifts BOTH the arms embargo and the missile technology import embargo, BUT the JCPOA does not impose sanctions on Iran for violating either UNSC embargo. 

The U.S. has its own unilateral embargoes on Iranian arms and missile does the United Nations. But guess what? Iran has consistently evaded without consequence those two embargoes for years.

Mr. Kerry assured that "the U.S. and its allies would have ample tools at our disposal if Iran violated the arms embargo and missile sanctions. Well, I don't see them working now, and I certainly don't see them in the JCPOA.

Is there anything you can do to hold Iran to account given how much of a financial windfall it will have to buy more arms?

Recommend that Congress include new unilateral sanctions and a snap-back of existing sanctions if Iran violates either embargo before their respective expirations. Further, recommend that Congress prohibit any arms transfers to Iran for as long as the agreement remains in effect, rather than merely for the time allotted for the embargoes to expire if Iran is caught violating any provision of the deal before the expiration of either the arms or missile embargo occurs.

Tighten Up Sanctions Against Iranian Support for Hezbollah and Hamas
What is the point of having Iran listed as THE foremost state sponsor of terror if the U.S. refuses to leverage the JCPOA to prevent Iran from using its financial windfall to arm its terror proxies? The U.S. should make it its declared policy that any assets released by the deal that find their way to Hezbollah and Hamas will trigger a snap-back of sanctions under a newly reauthorized Iran Sanctions Act.


President Obama could be reinforcing the JCPOA by creating a durable regional security shield to help contain Iran as long as it remains the #1 state sponsor of terror. I see little evidence of that other than more assurances of military assistance to our Sunni allies and to Israel.

Regrettably, the agreement's proponents hold fast to the White House's view that the two year negotiation (much less the secret back-channel Oman talks) were never intended to redress Iran's global terrorism and regional threats, let alone result in the freeing of American hostages. But that does not absolve the White House from having had a comprehensive deterrent strategic plan in place to complement the JCPOA - which could have gone a long way to earn more Congressional support so far.

Iran is now on track to become the dominant regional power in the Middle East. Add billions of dollars in a windfall sanctions bonanza and, voila, more financial fuel to fund more terrorism. And as more and more frozen assets are released Iran will be able to leverage them by earning more national income of trade relations are relaxed and Iranian petroleum exports begin hitting the global oil market.

A New U.S. - Israel Treaty of Mutual Cooperation & Defense
Despite decades of strategic cooperation, the U.S.-Israeli alliance has never been enshrined in a formal mutual defense agreement between the U.S. and the Jewish state - our most vital ally in the Middle East. Previous Israeli leaders have brushed off talk of such a bilateral treaty - asserting that Israelis prefer standing alone as long as vital U.S. military support was there. But Iran's regional posture under the JCPOA and its ability to resume its bomb program after the deal's expiration poses an entirely new series of challenges for Israel.

I have long admired President Obama's steadfast support for Israel where it counts despite the vexing affronts instigated by Mr. Netanyahu - an exceptional uninterrupted supply chain of military and security assistance. But Mr. Obama could have short-circuited much of the opposition to the JCPOA by borrowing a page from his predecessors.

Why not end the uncertainty that has driven so much fear and despair surrounding the JCPOA's danger to Israel and propose that the U.S. and Israel enter into a formal mutual defense treaty - comparable to The Treaty of Mutual Cooperation and Defense the U.S. has currently with Japan, or the Mutual Defense Treaty with South Korea? Why not place Iran on notice once and for all that any attack on Israel directly from Iran or indirectly by Hezbollah or other Iran-sponsored terror proxy will compel the U.S. to come to its aid?

Under such a treaty the U.S. and Israel would require both nations to collaborate to meet any mutual danger to their security - NOT a license for Israel to draw the U.S. into a pre-emptive unilateral attack on Iran. It is not a panacea toward resolving Israel's other regional threats, but could be one more key element in a comprehensive strategic plan of deterrence that would help alleviate the legitimate fears of our ally and, perhaps, give pause to Iran's worst ambitions against Israel.

A New Middle East Treaty Organization (METO)
The U.S., along with its NATO allies (UK, France & Germany) should consider creating a new Middle East Treaty Organization composed of Sunni Arab states, and Turkey. The principal purpose of METO would be to develop a regional policy to help prevent Iran from further destabilizing the region, combating ISIS, and laying a coordinated framework for finally resolving the horrific Syrian civil war.

Getting Tough Against Iran Hostage Taking
The release of our American hostages held by Iran should no longer be left to vague assurances from Mr. Kerry that all is being done to obtain their release. It is disturbing that American citizens are still being held by the Supreme Leader as some sort of bargaining chip likely tied to the agreement's implementation. Holding American hostages is an act of terrorism against the U.S. Tehran has had ample opportunity to free them by now. The Supreme Leader is toying with us, and it harkens back to how the Ayatollah Khomeini disparaged Jimmy Carter by failing to release the American embassy hostages until Ronald Reagan was inaugurated. What can you recommend be done by the White House to confront Iran with a serious "cost/benefit?" that compels the Supreme Leader to end to this intolerable hostage stalemate?

Since little can be expected out of the Obama Administration's efforts, recommend that Congress include a new provision in a newly-reauthorized ISA that prohibits the U.S. government from releasing any Iranian assets held unilaterally by the U.S. until all hostages are released and to compel the President to enforce the Hostage Act of 1868 under which a president is authorized to use all means necessary, short of war, to effectuate the release of illegally detained American citizens abroad. Let the Iranians howl that that violates the deal. I assure you they are not going to walk away from the JCPOA over American hostages.


In the final analysis, the Obama Administration has had a barely hidden grand design toward Iran. As a result the White House has all too often turned a blind eye to Iran's constant taunts, terror, and oppression.

The White House took regime change off the table even when Ahmedinjad was denying the Holocaust and threatening Israel's very existence. It brushed aside criticism of its failure to come to the aid of ordinary Iranians who were being massacred in the streets of Iran's city for protesting a rigged presidential election. It conducted secret negotiations in Oman without informing our allies. It has refused to resettle loyal Iranian opposition refugees detained against their will in Iraq who are targeted for death by the Supreme Leader. It paid lip-service to Iran's takeover of Iraq, its support for Assad, its interference in Yemen, and has tossed a few lines around protesting Iran's support of Hezbollah and Hamas...the list goes on and on.

Iran is not disposed to change anytime soon - just read what the Supreme Leader has been lately saying. Why just the other day he even went after a McDonald's in Tehran as a sinister American plot to his rule!

The JCPOA should be considered a "transactional" contract only. It will only be "transformative" if Iran's regime is credibly held to account - constrained in its revolutionary zeal, compelled to pay the highest price for daring to challenge the international community, and slowly but surely coerced to unshackle the chains on its long-oppressed people to enjoy the freedoms they have been so long denied by the mullahs.
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