- - Tuesday, August 9, 2016

ANALYSIS/OPINION:

An unmarked cargo plane filled with $400 million in cash lands in Tehran. Four American hostages held by Iran’s rulers are set free. These revelations have sparked two controversies.

First: Did the Obama administration pay ransom to the Islamic Republic of Iran, the world’s leading state sponsor of terrorism? White House spokesmen insist that’s not what happened, there was no quid-pro-quo; Iranian officials say that’s precisely what went down. Who is more credible? More importantly, whom do you think prospective hostage-takers around the world believe?

Second: Did this payment violate American law? Justice Department officials objected to the payment. Former federal terrorism prosecutor Andrew C. McCarthy argues that the transaction involved the commission of several “felony law violations.” Former Attorney General Michael Mukasey opines that while the transaction was not “right,” it wasn’t illegal.

The roots of this affair run deep. In early 1979, the Shah of Iran, as part of an arrangement to purchase jet fighters, deposited $400 million into a Pentagon account. Soon after, he was overthrown in the Islamic Revolution. As White House spokesman Josh Earnest phrased it: “Once the revolution took place, obviously that equipment was not transferred, but we also didn’t return Iran’s money, either.”

Return the money to whom, Mr. Earnest? At what point does the property of a government that has been toppled become the rightful possession of those who have done the toppling? International law is murky on this matter (as, truth be told, it is on many matters).

One thing we can say with reasonable certitude: Had envoys representing Ayatollah Ruhollah Khomeini reached out to President Carter, he would have done whatever was in his power to establish amicable relations.

But that didn’t happen. You know what did: On Nov. 4, 1979, loyal followers of the supreme leader seized the U.S. Embassy in Tehran and took 52 diplomats hostage. They would be held and, in many cases, tortured for 444 days. That such conduct violates international law — indeed, that it constitutes an act of war — is not a matter for lawyerly debate. The hostages would be released on Jan. 20, 1981, the day of Ronald Reagan’s inauguration.

Iran’s rulers have never apologized — much less compensated their victims. The Weekly Standard’s Lee Smith reports that President Bill Clinton considered using the $400 million to pay victims of Iranian terrorism who had won judgments against Iran in U.S. courts. In the end, however, he left it to American taxpayers to pick up the check. President George W. Bush could have reimbursed the Treasury using frozen Iranian funds. He did not.

There matters lay until, in January of this year, President Obama boasted that thanks to “strong American diplomacy” the United States and Iran “are now settling a long-standing Iranian government claim against the United States government and Iran will be returned its own funds, including appropriate interest, but much less than the amount that Iran sought.”

Note that the president neglected to mention claims against Iran. And shouldn’t there be some controversy over the notion of “appropriate interest” — which is how the $400 million “owed” to Iran rose to the $1.7 billion that is being paid?

Since the money in question was not loaned to the United States by Iran’s current regime, why should the assumption be that the U.S. invested it for the benefit of Iran’s current regime? As part of this hostage deal, the U.S. also freed seven Iranians charged or convicted of crimes and dropped extradition requests for 14 others. How much is that worth? Why does that not count as “interest”?

Surely, justice would have been better served had the Shah’s funds been distributed to the many victims of the Islamic Republic — the diplomats who were illegally imprisoned, to be sure, but also the families of those murdered on Iran’s orders, for example in Beirut in 1983, at the Khobar Towers in 1996 and, more recently, in Iraq by Shia militias armed and instructed by Tehran.

Also: Thousands of innocent Iranians were put to death by the leaders of the Islamic Revolution. Tens of thousands were forced to flee the country, their businesses, homes, lands and bank accounts stolen by the regime. Why have these victims been forgotten?

Here’s part of the reason: President Carter, during his final days in office, negotiated the Algiers Accord, agreeing that, in exchange for the release of the hostages, Iran’s new rulers would be granted immunity from criminal or civil penalties.

Congress did not approve the Algiers Accord, which was not a treaty but only an executive agreement. President Reagan could have revoked it, pointing out that his predecessor had negotiated it with a knife at his throat — or, more precisely, with knives at the throats of the hostages. But Mr. Reagan did not do that.

Instead, in 1981, pursuant to the Algiers Accord, the Iran-United States Claims Tribunal was set up in The Hague. This international arbitration mechanism has further entrenched the perverse notion of a moral equivalence between the United States and the Islamic republic.

It has led to Mr. Obama and Secretary of State John Kerry attempting to satisfy Iran’s “claims” against the United States against the backdrop of the Iran deal, another executive agreement. Mr. Obama considers that deal vital to his legacy. By contrast, Iran’s supreme leader, Ali Khamenei, has made plain that he’s more than willing to walk away from the deal — and will, should the river of American concessions not continue to flow.

So last week’s hostages-for-cash story turns out to be only one chapter in a long and sad saga. It should give rise to additional controversies, starting with this: Why are Iran’s negotiators so consistently more skillful than America’s?

Clifford D. May is president of the Foundation for Defense of Democracies and a columnist for The Washington Times.

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