President Donald Trump has reportedly decided how to proceed with the Iran nuclear deal — but no one, not even his own top advisers, knows what that decision is.
He has repeatedly called the 2015 agreement struck between the P5+1 countries (United States, United Kingdom, Russia, France, China, and Germany) to reign in Iran’s nuclear program in exchange for sanctions relief, the “worst deal ever.” He used his first speech at United Nations General Assembly on Tuesday to further slam the deal, calling it an “embarrassment.”
The president has threatened to either pull out of the deal — also known as the Joint Comprehensive Plan of Action (or JCPOA) — or renegotiate it. Iran has been unequivocal in its assertion that it has not violated the deal and Iranian President Hassan Rouhani on Thursday told reporters in Tehran that, “There was some discussion by some people that the nuclear deal isn’t very bad but shouldn’t stay as it is. (That) it’s a deal that’s good, but we should sit down again and debate to see if it can be improved. If it has flaws, we can fix them. They were told clearly and definitively (by us) that the nuclear deal cannot be renegotiated.”
ThinkProgress reached out to Richard Nephew, former Director for Iran on the National Security Staff, to break down Trump’s options:
Stick with the deal: “I think we can go ahead and say that this is not going to happen,” said Nephew, currently a senior research scholar at Columbia University’s Center on Global Energy Policy. Indeed, this seems highly unlikely as undoing the deal was one of Trump’s key campaign promises. But according to U.S. intelligence, the United Nation’s nuclear watchdog agency (the IAEA), and, even Secretary of State Rex Tillerson, there’s no evidence that Iran has, so far, violated the terms of the deal. Indeed, a group of 80 arms control experts last week asked Trump to honor the agreement. Reportedly under pressure by his own advisers, Trump recertified the deal (which is up for recertification every 90 days) in July and has already threatened to decertify it in October.
Decertify the deal: Under the terms of the Iran Nuclear Agreement Review Act (INARA) the president of the United States has to certify two things, said Nephew. “One, that Iran isn’t cheating and two, that the deal is in the national interest of the United States — and he has to make an affirmative decision on both of those things.”
In other words, even if Iran is found to be in full compliance with the terms of the deal, Trump can still decide to decertify it. However, decertifying the deal is not the same as pulling out of it. “The JCPOA does not even recognize certification as a requirement,” said Nephew. If Trump chooses to decertify the deal, as NBC reported late Wednesday night, he’ll then have to kick the deal to Congress, which will have 60 days to decide whether the U.S. will re-impose the sanctions related to Iran’s nuclear program (not to be mistaken with sanctions related to its ballistic missile program).
“INARA does not require the president to re-impose sanctions. It requires a discussion to happen on Capitol Hill about whether or not to re-impose sanctions. From that perspective, Congress now gets to decide whether or not they want to do that,” explained Nephew.
Pull out of the deal: Can Trump unilaterally decide to withdraw from the deal, irrespective of INARA and Congress? “The answer is an absolute yes — what he can do under the U.S. legal system is re-impose all the sanctions and revoke the waivers that allow the JCPOA to work, and Congress doesn’t have to say anything about that,” said Nephew. Congress could intervene, passing legislation to prevent Trump from pulling out of the deal, “But there’s a snowball’s chance in hell that they’ll do this.”
But why drag Congress into it at all? Because, said Nephew, “They want congressional leaders on board, they want to see if they can smear some Democrats — they don’t want to own walking away from the JCPOA on their own, which is absolutely their right, legally, and under the structure of the sanctions laws we have. Given that the deal is a multilateral one with which the other signatories seem fairly content, a U.S. pull-out is unlikely to make the deal implode. China, Russia, France, the United Kingdom, and Germany have all in recent days expressed support for keeping the deal. Iran has also signaled that it is willing to keep the agreement, even without the U.S., so long as the European partners remain.
This could get very messy, Nephew said, as Congress or the administration could choose to re-impose sanctions. “Then it comes down to the question of, ‘do European countries and companies voluntarily cooperate, or do they resist?’ And if they resist, is the United States prepared to impose sanctions against them in order to punish them for still doing business with Iran when we don’t want them to,” he said, adding that this scenario “is highly unlikely.”
Renegotiate: While Iran has made it clear it has no appetite for this, insiders told NBC that Trump could give European partners 90 days to agree to renegotiate the deal. “They might be talking about this within the administration, but they are crazy — that is not going to happen,” said Nephew. The Europeans, he said, don’t have the authority to push Iran into new concessions. “The Iranians won’t show up at that meeting,” he said. And that would be assuming the Europeans are keen to renegotiate, which they have clearly stated they are not.
The deal, Nephew acknowledges, is not perfect. Tillerson has raised the issue of the “sunset clause” — which allows restrictions on Iran’s nuclear program to be lifted after 2025. “This is a fair criticism of the deal that it doesn’t prevent Iran from having a nuclear program and it doesn’t prevent Iran from having the full nuclear cycle forever.” From a nonproliferation standpoint, Nephew said that both of those things would have been ideal.
“My hypothesis is that if you implement the deal faithfully, and if everyone is seen to be trustworthy and operating on the up-and-up, it would be easier to negotiate a follow-on arrangement that would take effect once those restrictions go away,” said Nephew. But the Trump administration, he added, has chosen to “threaten the Iranians now because they will be so terrified about the consequences of what we can do to them that they will concede things they weren’t willing to concede to Obama.” That is, to give up its nuclear enrichment program permanently is “beyond optimistic — it’s crazy.”
The Trump strategy, said Nephew, plays into the hands of the Iranians, who are unlikely to “damage their own reputation,” opting instead to abide by the deal and be seen as “the reasonable party” making the Americans look responsible for “turmoil in the international community.”
“At the end of the day the JCPOA is working to do what it set out do…The only slings and arrows that the JCPOA can take is that it also didn’t solve all the other problems that we have in Iran, which was never what it was supposed to do,” said Nephew. “For the same reason that my car also does not make espresso and therefore is a horrible car, I’m not overly inclined to walk away from the JCPOA.”
Update: On Thursday, October 5, The Washington Post reported that Trump is planning on decertifying the deal, claiming that it does not serve U.S. national interests, as required by INARA. The deadline for recertification is on October 15, with the Post qualifying that “All cautioned that plans are not fully set and could change.”