The Myth of a ‘Better’ Iran Deal

The Obama administration didn’t botch negotiations with Tehran. And Trump isn’t going to be able to get something tougher.

On Aug. 31, the International Atomic Energy Agency (IAEA) confirmed for the eighth time that Iran continues to comply with the 2015 Joint Comprehensive Plan of Action (JCPOA) — more commonly known as “the Iran deal.” The agreement — which was negotiated among the United States, China, France, the United Kingdom, Russia, and Germany (the so-called P5+1) and Iran — places significant and verifiable constraints on Iran’s ability to build nuclear weapons, especially the country’s capacity to produce the highly enriched uranium or weapons-grade plutonium required for a bomb. For that reason, arms control and nonproliferation experts overwhelmingly support the JCPOA and have urged all sides to continue implementing it. On Sept. 14, the Trump administration lived up to its end of the bargain — at least for now — by continuing to waive nuclear-related sanctions on Iran as required by the accord.

But the deal isn’t safe. Not by a long shot.

On Sept. 19, U.S. President Donald Trump took to the podium at the United Nations General Assembly to rage against the nuclear deal:

We cannot let a murderous regime continue … destabilizing activities [across the Middle East] while building dangerous missiles, and we cannot abide by an agreement if it provides cover for the eventual construction of a nuclear program. The Iran deal was one of the worst and most one-sided transactions the United States has ever entered into. Frankly, that deal is an embarrassment to the United States, and I don’t think you’ve heard the last of it. Believe me.

Trump’s disdain for the Iran deal is long-standing, and the president claims to have decided what he plans to do about it. But what that is, exactly, remains unclear. A key date to watch is Oct. 15, when Trump will next have to decide whether to certify Iranian compliance with the JCPOA to Congress. The certification is not required by the JCPOA itself; rather, it is a requirement of the Iran Nuclear Agreement Review Act (INARA) passed by Congress in the summer of 2015. Under the law, the president must certify every 90 days that Iran is implementing the agreement, isn’t in material breach, and has not conducted activities that could significantly advance a nuclear weapons program — and that suspension of sanctions in accordance with the deal remains vital to the national security interests of the United States. If Trump fails to make such a determination and decertifies the deal, it would trigger a 60-day period for Congress to consider re-imposing (“snapping back”) nuclear-related sanctions suspended under the accord, including sweeping “secondary sanctions” that target foreign firms and banks conducting business with Iran. Under INARA, congressional deliberations would occur under extremely expedited procedures in both chambers, and a final vote could not be filibustered in the Senate.

Some outside hawks, including former U.S. Ambassador the United Nations John Bolton, are encouraging Trump to decertify Iranian compliance and abandon the JCPOA outright. For these hard-liners, that would pave the way for Congress and the administration to impose a “de facto global economic embargo” on Iran and, if necessary, for the United States or Israel to take military action.

Trump is undoubtedly attracted to the notion of tearing down yet another pillar of former President Barack Obama’s legacy, but it remains unlikely that he will just walk away from the JCPOA.Instead, the administration seems to be considering two other options meant to raise the heat on both Tehran and the international community to address the deal’s alleged shortcomings. As U.S. Secretary of State Rex Tillerson told Fox News on the day of Trump’s U.N. speech, “the president really wants to redo that deal.”

The first option would entail continuing to grudgingly certify Iranian technical compliance with the JCPOA and waive associated nuclear sanctions, while massively increasing non-nuclear sanctions and other forms of pressure on Iran outside the four corners of the deal. This represents a “waive and slap” approach, which is reportedly favored by Tillerson, Secretary of Defense James Mattis, and national security advisor H.R. McMaster. How expansive the “slap” would be remains uncertain. Some deal critics have called for re-imposing most sectoral, secondary sanctions suspended under the JCPOA on other, non-nuclear grounds even if it runs afoul of U.S. obligations under the nuclear agreement.

While there is little doubt that Trump will continue to apply additional non-nuclear sanctions on Iran, all signs suggest that “waive and slap” won’t be enough to quench his thirst to go after the nuclear deal itself. Instead, reports suggest that the president is leaning toward a second option, which could be called “decertification and renegotiation.” Although Trump has twice certified that Iran is complying with the JCPOA under INARA, he has made no secret of his frustration with this outcome. During an interview with the Wall Street Journal in July, Trump said he’d be “very surprised” if Iran were found in compliance next time, noting, “If it was up to me, I would have had them noncompliant 180 days ago.” In an apparent effort to lay the groundwork for such a move, U.S. Ambassador to the U.N. Nikki Haley presented the case for decertification in a speech to the American Enterprise Institute on Sept. 5. And on Sept. 14, Trump told reporters: “You’ll see what I’m going to be doing very shortly in October.… They’ve violated so many different elements and they’ve also violated the spirit of that deal.”

On Sept. 20, Tillerson acknowledged that Iran was in “technical compliance” with the deal. Yet Trump’s seeming determination to find Iran in noncompliance — despite overwhelming evidence to the contrary — has raised concerns that the administration may politicize intelligence or manufacture a crisis over inspections at Iranian military facilities to provide a rationale for decertification. This could indeed happen — but it isn’t actually necessary. Under Congress’s nuclear agreement review act, Trump could simply decide that U.S. compliance with the JCPOA no longer serves American interests, decertifying it on those grounds and kicking the issue to Congress to debate re-imposing sanctions.

However, if Trump goes forward with decertification, the immediate goal would probably not be to directly dismantle the Iran deal. Instead, the idea would be to use decertification to put Iran on notice and then try to leverage both additional non-nuclear sanctions and the threat that Congress or the administration may re-impose nuclear sanctions as a means to force Iran and America’s P5+1 partners back to the table to renegotiate the deal on more favorable terms. It is also conceivable that Trump will certify the deal one last time but threaten to decertify it 90 days later if the parties don’t re-enter talks. Either way, the goal would be to refashion the JCPOA to address its supposed “flaws,” most notably by making constraints on Iran’s uranium enrichment capacity, elements of which loosen at the 10-year and 15-year marks of the deal, permanent. Under this scheme, the administration would also seek to expand the contours of the deal beyond the nuclear domain to place limits on Iran’s conventional ballistic-missile arsenal and extract other concessions from Tehran regarding the regime’s support for terrorism and regional militancy.

Israeli Prime Minister Benjamin Netanyahu has strongly encouraged the Trump administration to go down this road. During his own speech to the U.N. General Assembly, Netanyahu said, “Israel’s policy regarding the nuclear deal with Iran is very simple: Change it or cancel it. Fix it or nix it.”

This option would allow Trump to appeal to his base and signal displeasure with the deal. It would also enable the president, who fancies himself a master negotiator, to use the threat to the JCPOA as a bludgeon to produce a “better deal.” The belief that such an outcome is possible is deeply rooted in a fundamental critique of the Iran deal advanced by some Israeli officials, conservative think tanks, and Trump himself: the idea that Obama simply lacked the skill and political will to push for tougher terms when the JCPOA was struck in July 2015.

There’s just one problem: It’s a myth. More pressure would not have produced a better outcome two years ago — and threatening to blow up the deal will not produce a better one today.

Israeli Prime Minister Benjamin Netanyahu addresses a joint meeting of Congress on March 3, 2015. (WIN MCNAMEE/Getty Images)

The cult of the counterfactual

The myth of the better deal took hold in 2015 as critics attempted to mobilize opposition to the Iran deal. In an address to a joint session of Congress on March 3, 2015, Netanyahu urged lawmakers to reject the emerging nuclear accord, demanding that it be replaced with an agreement that would dismantle Iran’s nuclear infrastructure and sustain those restrictions until Iran abandoned its development of ballistic missiles, its support for terrorism and regional aggression, and the regime’s stated hostility toward Israel. Such a deal was not only desirable, Netanyahu argued, but also possible. “Iran’s nuclear program can be rolled back well beyond the current proposal by insisting on a better deal and keeping up the pressure on a very vulnerable regime…. [B]y maintaining the pressure on Iran and on those who do business with Iran, you have the power to make them need [the deal] even more.”

A few weeks after the conclusion of the JCPOA, a widely read Foundation for Defense of Democracies report co-authored by Mark Dubowitz and Annie Fixler echoed similar themes. Dubowitz, the current CEO of the foundation and a longtime Iran hawk, was and remains one of the most influential outside voices on Iran. The August 2015 study called on Congress to use the vote called for under INARA to reject the Iran deal and demand changes to toughen nuclear constraints, address the deal’s sunset clauses, strengthen inspections provisions, and address the threat posed by Iran’s ballistic missiles and sponsorship of terrorism. Generating the leverage to secure such a deal was possible, the authors claimed, if the United States imposed new secondary sanctions and issued credible military threats to take out Iran’s program.

It’s worth noting that it remains uncertain whether any deal with the existing Iranian regime would actually have been acceptable to these critics. In numerous meetings between Netanyahu and senior U.S. officials across my time in the Obama administration, the Israeli prime minister repeatedly voiced concerns that any accommodation with Iran risked legitimizing and emboldening the Islamic Republic’s regional agenda, and that any agreement — no matter how stringent — would be of dubious value because the regime would inevitably cheat.

Similarly, in 2011, Dubowitz noted that “sanctions [against Iran] are working by putting pressure on the regime, although they have not secured their objective and may never do so — putting an end to Iran’s nuclear program. The best way is to work towards changing the regime. Any deal cut with this regime will be violated.” A year later, in an op-ed co-written with Reuel Marc Gerecht, Dubowitz argued that “if we are going to pursue tougher international sanctions against Iran — and we should — the goal should be regime change in Iran, not stopping proliferation.” (Shortly after Trump’s inauguration, Dubowitz also sent a detailed memo to the National Security Council staff suggesting that “Iran is susceptible to a strategy of coerced democratization,” an argument he made publicly in a recent Wall Street Journal op-ed.) Apparently, the disastrous legacy of the U.S.-supported Iranian coup in 1953 — which haunts relations between Washington and Tehran to this day — and the chaos unleashed by regime change in neighboring Iraq have done nothing to deter these critics.

British Foreign Secretary Philip Hammond, U.S. Secretary of State John Kerry, and European Union Representative for Foreign Affairs Federica Mogherini talk to Iranian Foreign Minister Mohammad Javad Zarif during negotiations in Vienna. (CARLOS BARRIA/AFP/Getty Images)

Deal or no deal

Whether or not there was (or is) any deal that would satisfy JCPOA opponents, an arrangement that permanently dismantled Iran’s nuclear infrastructure, eliminated the country’s ballistic missile program, and ended all Iranian misbehavior in the region was not achievable in 2015. This was the case for at least three reasons.

First, there was insufficient international support to insist on maximalist demands. During the JCPOA talks, the Obama administration succeeded in forging consensus among our international partners in favor of significant, long-term constraints on Iran’s ability to produce highly enriched uranium and weapons-grade plutonium, as well as support for the most intrusive inspections regime ever negotiated. At the outset of negotiations, the Obama administration attempted to go further, aiming for an agreement that would have eliminated Iranian domestic uranium enrichment altogether. It proved infeasible. There was simply no appetite among the other members of the P5+1 for insisting on conditions requiring a permanent dismantlement of Iran’s civilian nuclear infrastructure, nor international support for imposing even harsher economic sanctions aimed at achieving this objective.

There was also no agreement among the P5+1 to push for binding restrictions on Iran’s ballistic-missile program (which serves conventional retaliatory purposes, not just hypothetical nuclear ones), and there was strong resistance to folding all of Iran’s regional misbehavior into the talks. Indeed, our partners believed (as did the U.S. negotiating team) that attempting to integrate Iran’s regional behavior into talks risked weakening the deal rather than strengthening it by giving Tehran leverage — i.e., the ability to trade concessions on some regional policies for weaker nuclear constraints. As threatening as Iran’s conventional missiles and support for terrorism and militancy were (and are), there was widespread agreement that all these activities would be exponentially more dangerous if Iran possessed nuclear weapons. For that reason, the Obama administration remained laser-focused on securing a good nuclear deal while finding other ways to push back against Iran’s regional mischief, including targeted sanctions outside the nuclear domain and unprecedented levels of security assistance to Israel and Arab Gulf states.

In this environment, an attempt by the Obama administration to unilaterally impose “better” terms through additional nuclear-related sanctions would have backfired. Iran’s trading partners complied with sweeping U.S. sanctions despite significant costs to their own economies because they agreed with Obama’s objectives; indeed, Washington rarely had to enforce secondary sanctions to produce compliance. But with a good nuclear deal within reach, the international community was not willing to accept indefinite economic sacrifices, let alone more pain, in search of illusory perfection. Consequently, if Obama had insisted on a set of conditions that most members of the international community viewed as unreasonable, it wouldn’t have worked.

In the 1990s, for example, when there was no global consensus on Iran, the European Union ignored U.S. secondary sanctions targeting investments in Iran’s energy sector, threatened retaliation and referral to the World Trade Organization, and passed “blocking statutes” prohibiting companies from complying with U.S. law. In 2015, maximalist U.S. demands and unilateral sanctions would not have tightened the noose around Iran. Instead, it would have produced a major clash between the United States, on the one hand, and China, the EU, India, Japan, Russia, South Korea, and Turkey, on the other, weakening multilateral pressure and benefiting Tehran.

Second, even if the Obama administration had somehow managed to hold the international community together, additional sanctions (or military threats) aimed at forcing the Iranian regime to make an existential choice would not have made Tehran cry uncle. There is no question that nuclear sanctions — especially major oil-related sanctions imposed by the United States and the EU in 2012 — took a serious toll on the Iranian economy. Between 2012 and 2015, Iran lost around $160 billion in oil revenue, and Iran’s economy was perhaps 15 to 20 percent smaller in 2015 than it otherwise would have been if 2012 growth trajectories had continued. And yet, during the Iran-Iraq war, Iran absorbed more than $600 billion in economic damages and hundreds of thousands of casualties — and it still took eight years for the regime to settle for a tie. There is simply no evidence that the regime in 2015 would have buckled.

Moreover, despite the tremendous pressure Tehran was under prior to the JCPOA, Iranian leaders viewed total capitulation as a bigger danger to their rule than additional international pressure. The regime had invested more than $100 billion over the years in mastering uranium-enrichment technology and defending Iran’s “nuclear rights.” And the regime’s revolutionary identity was (and remains) defined by opposition to the United States, Israel, and the West. Supreme Leader Ali Khamenei and other Iranian hard-liners would have perceived demands to permanently dismantle the Iran’s civilian nuclear infrastructure, disarm the country’s conventional retaliatory capabilities (ballistic missiles), and abandon regional “resistance” as graver threats to the regime’s legitimacy and survival than additional sanctions or even a military strike. They would not have caved. And had the Obama administration insisted on a maximalist position and raised the threat level, the regime would have played on the assault by “arrogant powers” to rally public support against the Great Satan. That was especially true after Hassan Rouhani won the presidency in 2013. Rouhani ran on a platform of reintegration into the global economy. Had the United States responded to his ascendance and the window it provided for a nuclear compromise with escalating sanctions and saber-rattling, it would have made it even easier for Iranian officials opposed to any accommodation with Washington to portray America as irreconcilably hostile. Hard-liners in the regime would’ve been strengthened, not weakened.

Finally, even if it would have theoretically been possible to bring the regime to its knees, critics have to contend with another reality: time. As negotiations entered their final phase in 2013 to 2015, there simply was not enough time for pressure to work before the nuclear clock struck midnight. According to open-source estimates, Iran’s “breakout” time — the time it would theoretically take to produce one nuclear bomb’s worth of weapons-grade uranium — fell from around 6 months in 2010 to one or two months by mid-2013. An interim nuclear agreement reached between the P5+1 and Iran in the fall of 2013 put temporary caps on Iranian enrichment levels, expanding the breakout cushion to about two or three months and buying some time to negotiate a comprehensive accord.

Yet if JCPOA talks had collapsed, and Iran had resumed its nuclear progress, the breakout time would likely have fallen to near zero within a year. The Iranians were also poised to complete construction of the Arak heavy-water research reactor within about a year, opening a potential plutonium pathway to a nuclear weapon. Consequently, had the Obama negotiation failed to reach a comprehensive agreement, Iran was in a position to move rapidly toward a nuclear point of no return before an enhanced pressure campaign culminated. The United States, Israel, and the world would have been confronted with the fateful choice of living with an Iranian nuclear bomb or bombing Iran long before conditions were ripe for producing the mythical better deal. (And for those who may think there was or is a neat and enduring American or Israeli military solution to Iran’s nuclear program, I can tell you — as the former Pentagon official with responsibility for overseeing contingency plans for Iran — there wasn’t and there isn’t.)

Iran's Uranium Conversion Facility, just outside the city of Isfahan, in 2005. (Getty Images)

Back to the future?

The JCPOA addressed this acute threat by reducing the number of Iran’s operating centrifuges by two-thirds for 10 years and reducing Iran’s stockpile of low-enriched uranium by 98 percent for 15 years. Taken together, these restrictions extend the time it would take Iran to produce weapons-grade uranium under a breakout scenario to at least 12 months for the next decade. The agreement also required Iran to remove the core of the Arak heavy-water research reactor — and redesign the plant — to preclude the Islamic Republic from producing weapons-grade plutonium. To verify Iranian compliance, the JCPOA allows the IAEA to conduct intrusive inspections of Iran’s declared nuclear facilities and provides a procedure for inspectors to gain access to suspicious sites in perpetuity. The deal also creates additional defenses against cheating by allowing the IAEA to monitor centrifuge production, assembly, and storage facilities for 20 years and uranium mines and mills for a quarter-century. And, crucially, Iran’s obligation not to produce nuclear weapons under the JCPOA and the Nuclear Non-Proliferation Treaty is permanent. Even if Iran eventually expands its civilian nuclear infrastructure with the goal of violating this pledge, as critics assert they will, a U.S. president in 2025 or 2030 will have more time to detect and stop them than Obama had in 2015 because of this deal.

For all these reasons, the JCPOA is a good deal for U.S. national interests and for global security. Threatening to blow it up now unless Iran and our P5+1 partners acquiesce to new terms — as Trump seems hell-bent on doing — is not a recipe for a better outcome. It is a recipe for disaster.

If Washington walks back from its obligations under the deal, it could give hard-liners in Tehran an excuse to do the same. Iran could withdraw from the JCPOA and resume its march toward a nuclear-weapons capability, and the region would be back on the path to a major war. Nevertheless, it is actually more likely that Iran will stay in the deal, at least for some period of time. Doing so would provide Tehran a golden opportunity to exploit the inevitable rift between the United States, other P5+1 countries that remain committed to implementing the JCPOA, and the broader international community that supports the deal.

Although European leaders have suggested that they are open to considering “supplemental” arrangements to address issues not covered by the nuclear accord, they are adamantly opposed to renegotiating the JCPOA itself (see also here, here, and here). China and Russia are even more skeptical of doing so. Consequently, a U.S. threat to exit or dismantle the deal will leave the Trump administration, not Tehran, diplomatically isolated. That, in turn, would make securing a so-called better deal impossible. To be sure, the re-imposition of U.S. sanctions would harm the Iranian economy as banks and companies are forced to choose between doing business with the United States or Iran. Even the threat to re-impose U.S. secondary sanctions triggered by decertification could create enough uncertainty to deter some entities. But, in the absence of international consensus, compliance with U.S. sanctions would be highly uneven.

America’s P5+1 partners would stick with the deal and urge their banks and firms to continue doing business with Iran. As one State Department official recently told Politico, “[t]he Europeans are very clear they won’t go with us in pulling out of the Iran deal and will push back if we start going after European companies doing approved business in Iran.” The Europeans could respond with threats of retaliation and EU or national blocking legislation, as they did in the 1990s. Meanwhile, China and other large Asian customers for Iranian oil could fashion workarounds to make their banks less vulnerable to U.S. secondary sanctions, or they could simply dare the Trump administration to start a trade war with some of the world’s largest economies.

Thus, even if Trump’s gambit to decertify and threaten the JCPOA did some harm to Iran, the international reaction would produce far less net economic and diplomatic pressure on Iran than existed before the JCPOA was finalized. And it is literally insane to believe that it is possible to produce 150 percent of the current deal with 50, 70, or even 99 percent of the leverage the United States possessed in 2015. It simply ignores the laws of diplomatic physics.

None of that means that supplemental arrangements shouldn’t be considered to build on the Iran deal. But any effort to do so must start from the recognition that the JCPOA itself should be preserved. The deal remains the most effective mechanism to prevent Iran from developing nuclear weapons, and jeopardizing it unnecessarily brings forward in time the very circumstances — an unrestrained Iranian nuclear program — that critics worry about a decade from now. The first priority, therefore, is to stabilize it, not to play games of chicken every time U.S. sanctions waivers are due to be renewed or certification under INARA is required. If Trump ignores this advice and decertifies the deal, it will be up to Congress to keep the JCPOA alive. That will place many representatives and senators who took hard votes on the Iran deal in 2015 in a difficult position, and Trump undoubtedly hopes to force Democrats in particular to squirm. But the national security imperative of keeping the deal intact remains profound.

In the meantime, the United States has many ways to productively address Iran’s troubling non-nuclear behavior outside the contours of the deal, including diplomatic efforts to end the regional conflicts exploited by Iran, enhanced security and intelligence cooperation with our Israeli and Arab partners, and targeted sanctions — as both the Obama and Trump administrations have done — consistent with U.S. obligations under the JCPOA.

But as the JCPOA negotiations demonstrate, pressure alone is unlikely to be sufficient to coerce further Iranian concessions. Iran will not acquiesce to a “more for same” deal in which the Islamic Republic is expected to accept additional constraints in exchange for identical (or less) sanctions relief, especially given their ability to exploit disagreements among the P5+1. Any realistic prospect of extending the life of the JCPOA’s nuclear constraints to address sunset concerns, or crafting supplemental arrangements on ballistic missiles, will require a “more for more” approach that puts positive incentives — such as providing Iran with access to the U.S. financial system to conduct dollar transactions or completely lifting the U.S. primary embargo — on the table, not just additional sanctions and threats. And it will likely require creative diplomacy to forge regional nuclear compacts to expand and generalize elements of the JCPOA, as well as arms control and confidence-building measures to ease tensions, to create more space for Tehran to make further concessions.

The Iran nuclear deal addresses a critical threat to U.S. and international security, and it must be sustained. Expanding the agreement is a worthy enterprise, but not at the expense of the current deal. Improving the JCPOA will require patient, steady, and balanced diplomacy — not more presidential bluster and threats to destroy the deal. There is no crisis. The JCPOA has put Iran’s nuclear program in a straightjacket and it will continue to bind the program for years to come. At a time when the Trump administration faces actual nuclear crises elsewhere in the world, there is simply no reason to manufacture another one in the Middle East.

Photo credit: WIN MCNAMEE/Getty Images

Colin H. Kahl is the inaugural Steven C. Hazy senior fellow at the Freeman Spogli Institute for International Studies' Center for International Security and Cooperation and a strategic consultant at the Penn-Biden Center for Diplomacy and Global Engagement. From 2014 to 2017, he was deputy assistant to President Barack Obama and national security advisor to Vice President Joe Biden. (@ColinKahl)