- - Wednesday, April 26, 2017

ANALYSIS/OPINION:

On April 18, the State Department certified Iran to be in compliance with its commitments under the Iran nuclear deal (Joint Comprehensive Plan of Action, or JCPOA). As France’s iconic foreign minister, the Marquis de Talleyrand, once reportedly said: “This was worse than a crime; it was a mistake.”

The applicable statute not only did not require such a certification, it openly invited President Trump not to make one if circumstances warranted, as they clearly did here. More seriously, the certification raises fundamental questions whether the State Department’s bureaucracy knows or cares that U.S. Iran policy has changed with the Trump administration’s advent.

The applicable reporting statute requires that, at least every 90 days, the president must determine whether he “is able to certify” that among other things, “Iran is transparently, verifiably, and fully implementing the agreement, including all related technical or additional agreements,” and that “Iran has not taken any action, including covert activities, that could significantly advance its nuclear weapons program.”

By the explicit terms of the reporting obligation, the president (whose authority had been delegated to the secretary of State) was required only to decide whether he could avow Iran’s full implementation of its JCPOA obligations. He was not required to make a binary choice, either certifying that Iran was complying or that Iran was not complying. He could have sidestepped, especially given his administration’s short time in office and its ongoing review of Iran policy, not to mention what we know about Iran’s violations just from publicly available information.

Of course, one consequence of not certifying compliance is that the reporting statute also provides for expedited legislative consideration of new anti-Iran sanctions legislation. That may have been the bureaucracy’s motivation, but, given Mr. Trump’s clear views on the Iran deal, could hardly have affected the White House view.

How could such a mistake have been made? Perhaps because of a significant challenge facing Mr. Trump, namely avoiding becoming entangled in a bureaucratic trap set by his predecessor.

In critical respects, President Obama negotiated the JCPOA to be inherently unverifiable. The vaguely written and internally contradictory text of the agreement, with language invariably favorable to Iranian interpretations that would subvert its ostensible intent, is the opposite of how arms agreements should be written. This is no surprise, because a verifiable nuclear agreement was not what Mr. Obama wanted. Instead, he sought a political agreement with Tehran that would neither require Senate approval nor be easily terminated by subsequent administrations. Given that objective, a tightly written, readily verifiable agreement with which Iran never had any intention of complying would have been an obstacle rather than an aid.

Equally troubling were steps taken during Obama’s administration to lessen the State Department’s capacity to determine compliance with all international arms-control agreements. In 1999, a remarkable bipartisan coalition led by Sens. Jesse Helms and Joe Biden, over the Clinton administration’s vigorous objections, created in the State Department a Bureau of Verification and Compliance (VC). The Senate Foreign Relations Committee, in its report on the legislation creating VC, rejected the Clinton State Department’s proposed “demotion of verification and compliance functions” by putting them under the assistant secretary for arms control. Noting “a true commitment to vigorous enforcement of arms control and nonproliferation agreements and sanctions cannot be maintained by submerging compliance analysis within other bureaus,” and given “the inevitable tension between enforcement of arms control and nonproliferation agreements and the implications of enforcement with various countries,” the VC assistant secretary was to provide the essential independent voice on verification and compliance matters “at the most senior level of the Executive Branch.”

VC was never accepted by State’s arms-control bureaucracy. When Mr. Obama took office, his appointees immediately and effectively downgraded VC. Knowing that repeal of the Helms-Biden legislation was politically impossible, the Obama administration instead merged VC into State’s arms-control bureau, creating the Bureau of Arms Control, Verification and Compliance.

The verifiers were thereby all but silenced. In fact, the merger essentially recreated the situation that had given rise to the Helms-Biden legislation in the first place. As a result, there was no institutional check on the Obama administration’s desire to get a deal with Iran at any cost, particularly when it came to verification. As assessed in the Sept. 2, 2015 Letter of Experts to Mr. Obama, verification of the JCPOA, is “completely ineffective.” Thus, the very bureaucracy that negotiated the deal now gets to assess Iran’s compliance.

In addition to the vagueness of many of the JCPOA’s terms, the agreement expresses many Iranian commitments as being voluntary, based on Iran’s “plans.” For example, “Iran will abide by its voluntary commitments, as expressed in its own long-term enrichment and enrichment R&D plan to be submitted as part of the initial declaration for the Additional Protocol to Iran’s Safeguards Agreement.” That is, after Iran’s nuclear program is declared to be peaceful in eight years.

Candidate Trump called the JCPOA “the worst deal ever negotiated.” Now, the State Department personnel who helped John Kerry ensure it was a U.S. diplomatic Waterloo will be free to color the Trump administration’s review of their work. President Trump and his team should urgently address this critical deficiency, or with absolute confidence, we can predict it will return to bite them again.

• John R. Bolton is a former U.S. ambassador to the United Nations and a former undersecretary of State for arms control and international security affairs. Paula A. DeSutter is a former assistant secretary of State for verification and compliance.

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