Maybe those smiles are a bit premature.

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Nuke Deal Gives Iran Room to Cheat

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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A couple of weeks before the Iran agreement was finalized, I argued in this space that the negotiations could in theory reach an acceptable outcome even if one expected the Iranian regime to do a small amount of cheating. I still believe that. What I didn't anticipate was that room for cheating might be baked into the deal. But I fear that's exactly what's happened.

I am not referring to the question of whether Iran could hide its noncompliance within the bureaucratic labyrinth established by the Joint Comprehensive Plan of Action for those inevitable occasions when leaders in Tehran and the International Atomic Energy Agency inspectors reach an impasse. Others have tackled that point masterfully. I am concerned about what happens if at the conclusion of a dispute about an inspection, Iran will not back down.

My analysis of the 159-page agreement says: probably nothing.

I'm serious.

Let's take an example. Under the action plan, Iran is permitted to enrich uranium only at its Natanz facility, and only up to 3.67 percent, well below weapons-grade. Suppose that a few years down the road, once things are humming along, the U.S. discovers, through its fabled if imperfect "national technical means," that Iran has illegally established a second enrichment site apart from Natanz. The U.S. thinks that the regime is using its new, secret facility -- we'll call it Site X -- to enrich uranium up to 5 percent, a range not uncommon in light water reactors. This figure would not be sufficient to produce weapons-grade fissile material, but it would still exceed the 3.67 percent allowed under the agreement.

Now what happens?

Presumably the U.S. passes the information along to the IAEA inspectors. The next part of the process is guided by Part Q of Annex I of the action plan. Under paragraph 75, the IAEA will ask Iran for "clarification." If the explanation is not satisfactory, paragraph 76 allows the inspectors to "request access" to Site X. Paragraph 77 entitles Iran to offer an "alternative means" rather than inspection to resolve the issue. For example, Iran might say that Site X is militarily sensitive, but propose copying the hard drives of all the computers for the IAEA to study. The inspectors will have no way of knowing whether they have copies of all the drives, and might not be able to tell whether the copies have been altered, and so will insist on full access instead. If the parties reach an impasse, the bureaucratic wheels begin to turn.

And what's the result? Say that the required five of the eight members of the Joint Commission established to ensure compliance with the agreement decide that Iran must grant the inspectors access to Site X. Iran still says no. At that point, the dispute is bucked to the United Nations Security Council, which will vote on whether to continue to lift the sanctions. (The snap-back comes here, because the U.S. can presumably veto the resolution even if the rest of the Security Council votes for it.)

So, you're thinking, fine, there's a process -- Iran won't cheat. The costs are too great.

But wait. Are we really to imagine that the West will go to all the trouble of reimposing the UN sanctions because of one site that is enriching uranium illegally but nowhere near weapons-grade? Plainly the politics of the moment will matter. Theory and common sense, however, can help us make predictions. In my earlier column, I pointed out that a degree of cheating can be tolerated as long as the West's overall gain from the deal outweighs the cost of Iran's cheating. If the choice is between allowing this single illegal laboratory to go uninspected for a time and reimposing the entire sanctions regime, I would expect the West to blink. Indeed, it would be rational for the West to blink rather than wreck a deal that is in other respects working.

The trouble is that the West, in its focus on creating a mechanism for the snap-back of sanctions, has left itself without any other, lesser weapons. As several analysts have pointed out, there is the option to reimpose full UN sanctions ... and nothing else. Remember that the parties, including the U.S., have undertaken not to enact any additional nuclear sanctions except through the process set forth in the agreement -- that is, going through the Joint Commission and the Security Council. There is no way to impose small, measured sanctions for small, measured violations. This is what I mean when I say that room for cheating is built into the structure of the agreement.

In my course on the ethics of war, I warn my students that perfect agreements exist only in the classroom. Nations can and must make compromises, sometimes unhappily. So the bizarre incentives that the Iran action plan creates might not be reason enough to try to block the deal. But in the two-month run-up to the congressional vote, both sides should know exactly what it is they are voting on.

  1. This is not even considering the complaints that would doubtless be heard in the UN Security Council that reliance is being placed on U.S. detection technology and analysis, both of which failed spectacularly in the run-up to the Iraq War.

  2. Experts have puzzled over the precise meaning of this line in paragraph 26 of the action plan: "The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions." An executive agreement cannot possibly bind the House and the Senate, so it may be that the expectation is that the president will veto, or perhaps decline to enforce, any fresh nuclear sanctions adopted by the Congress.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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