Thursday, July 16, 2015

Second Blush Thoughts on the Iran Deal

On Facebook, I noted that I was working hard to not have an opinion on the Iran deal, because I knew nothing about it and shouldn't come to a conclusion simply via rote mimicry of ideological cohorts. It was observed by a friend, though, that one of my God-given rights as an American is to "have an opinion based on nothing and then broadcast it publicly through as many channels as possible". And as a blogger, I try my best to live by that credo.

I should start by saying that I have not read the deal itself. This is because the technical characteristics of the deal probably wouldn't mean that much to me, and in particular they'd mean nothing out of context (specifically, the context of feasible alternatives). The sources I read to educate myself include Tom Friedman's interview with the President, Jeffrey Goldberg, AIPAC, Marc Goldberg, David Adesnik, Max Fisher's interview with arms control expert Jeffrey Lewis (highly recommended), Douglas Murray, and of course the metric ton of commentary folks have been blasting all across Facebook for the past few days. Here, then, is where I'm at now.

(1) Obviously, the deal can't be evaluated against an ideal world where America stands steely-eyed and strong and Iran capitulates to everything our heart's desire. One makes deals with autocratic regimes pursuing nuclear weapons under less-than-ideal circumstances -- that comes with the territory. Likewise, we can't evaluate the deal based on what we could have gotten 10 years ago. Assessing this deal is a comparative exercise -- how does reaching this accord compare to either no deal or another deal that could be realistically obtained now?

(2) This deal clearly has its eye on one thing and one thing only: slowing down Iran getting a nuclear weapon. It doesn't care about ending Iranian terrorism. It doesn't care about liberalizing the country. It doesn't care about rectifying the nation's many, many human rights abuses. All of these things are important, but they're not the subject of this deal (and were not, realistically, going to be improved by any deal). I have heard the argument that lifting the sanctions will nudge Iran in a more conciliatory direction, but I'm highly dubious. I'm also inclined to agree that the cash flow it is about to see stemming from the sanctions relief will redound to the benefit of the various terrorist groups Iran likes to fund.

(3) I am unconvinced that there was a "better deal to be made". As far as I've seen there were essentially two mechanisms America supposedly had for exerting more leverage over Tehran: continuing the current regime of exceptionally tight sanctions, or military strikes. The former doesn't work: The current sanctions regime was unsustainable -- the only way we got countries like Russia and China (and arguably even the EU) onboard with tighter sanctions was in service of getting a deal. If no deal was in sight, most of our international allies would have walked away from the sanctions and we'd be left with nothing. The military option is risky for a host of reasons; it might not work, it definitely will prompt retaliation, it definitely would be a diplomatic catastrophe for the United States in forums far afield from Iran, and it definitely will result in blowback that we really don't need. Robert Farley has long convinced me that the ability of pure airpower to bend other countries to our will is overstated, and the more resources we invest in ensuring that the military operation is successful, the more we risk being mired in yet another intractable Middle Eastern conflict.

(4) Indeed, one thing that Lewis said in his piece -- which, again, is the most informative of all the one's I read -- really stuck out for me. It's that "[e]very six months, the deal we could have gotten six months before looks better. Every time we tried to hold out for a better deal, and every time we got in the position of a worse deal." That dates back to the Bush administration, so this isn't a case of weak Obama being weak and not leading with leadership. The fact is the trendlines haven't been good for awhile now, and experientially speaking trying to get a "better deal" has only made things worse. To quote Lewis again:
I was talking to a colleague who is unhappy [with the deal], and it's kind of fascinating. He's unhappy because, he said, "We spent eight years, and the deal we got is not better than the deal we could have gotten eight years ago." And it's like, oh, no kidding. That's not an indictment of the deal, my friend, it's an indictment of eight years of fucking around. [...]

I would give [this deal] an A....[Now, c]ompared to the deal we could have gotten 10 years ago, if the Bush administration hadn't had their heads up their butts? Not an A! That would have been a great deal!

I remember when they had 164 centrifuges, in one cascade, and I said, "You know what, we should let them keep it in warm standby. No uranium, just gas." And people were like, "You're givin' away the store!"
In short, I think opponents of this deal bear a heavy burden of persuasion as to why this time things will be different. And for me at least, they haven't met that burden. I agree with Jeffrey Goldberg that "The dirty little secret of this whole story is that it is very difficult to stop a large nation that possesses both natural resources and human talent, and a deep desire for power, from getting the bomb."

(5) On the particular metric of "slowing down Iran obtaining a nuclear weapon" -- which again, is clearly the only thing the deal is concerned about -- it seems likely to be a net positive over other feasible alternatives. Lewis certainly seems to think so (including ranking it higher than the alternative of bombing Iran). A lot of the technical details of course mean nothing to me, both on the science side (what are the risks of the technology Iran is allowed to keep) and on the logistical side (is 24 days lead time for inspections a lot or a little?). That said, I don't think the deal's efficacy depends on Iran suddenly not being a power-hungry illiberal reactionary autocracy. The "snapback" provisions seem pretty robust and offer ample opportunities for western states to punish Iran for cheating (or suspected cheating). And notably, these provisions can kick in without assent by China or Russia, who are the players whose commitment is most dodgy.

(6) All of that said, I still have a serious concern, although its an idiosyncratic one that maybe is only shared by me. One way of thinking about this deal is that it trades reduced Iranian nuclear capabilities (via inspections, etc.) for increased Iranian ability to sponsor terror (because of the cash infusion it will get when the sanctions are lifted). And my quite unique position is that I always thought that Iran getting a nuclear weapon was always exaggerated on the threat scale. Nuclear weapons are and have been easily deterrable via conventional modes of statecraft. Even countries which hate each other (like the US and the USSR) pulled it off for decades. And even if one thinks Iran is so entirely suffused with millennarian impulses with respect to Israel that it would risk itself being wiped off the map via an Israeli nuclear counterstrike, it's difficult to imagine that it would risk harming its own holy sites in Jerusalem. By contrast, Iran's sponsorship of terror organizations like Hezbollah has been a thicket that normal diplomatic statecraft has not been able to satisfactorily resolve. Hence, a trade that reduces the former risk while amplifying the latter strikes me as exactly backwards. This may explain why all major elements of the Israeli polity -- including the liberal opposition -- don't like the deal. It strengthens Iran on pretty much all axes save nuclear weaponry (of course it does -- that's what makes it a deal. Iran gives something -- ability to quickly get a nuclear weapon -- to get something -- increased resource access. Outside fantasies where America Green Lanterns Iran into a total capitulation, that was always going to be the result), and Israel quite reasonably doesn't want to see Iran strengthened. And of course, Israel will bear the brunt of an Iran more capable to fund its proxies in Syria, Lebanon, and around the Middle East.

(7) So if I was to argue against the deal, that would be my point of attack: it weakens Iran along a threat dimension whose danger was overstated at the expense of strengthening Iran along a threat dimension whose danger is understated. Yet ultimately, that argument seems more of a general criticism of misplaced global priorities than it is a specific criticism of this deal. Assuming I'm right that the sanctions would have been unsustainable absent a deal, the choice was never "weakened terror Iran/strengthened nuclear Ian versus strengthened terror Iran/weakened nuclear Iran". The alternative to weakening Iran's nuclear capacities while relieving it of international sanctions was to strengthen Iran's nuclear capacities while relieving it of international sanctions. The lifting of sanctions was baked into the cake -- they knew it, and we knew it, and the only question was whether we could use the leverage we temporarily possessed to get a deal that accomplished the one, solitary goal it set out to accomplish. Based on my read, and what I've seen, I think that it did. The result is, to be sure, an Iran that will in many ways be more powerful and more dangerous in 2020 than it is in 2015. That's a security risk that will need to be dealt with in its own way. But it wasn't an eventuality that this deal, in these circumstances, was capable of forestalling.


Mark said...


No thoughts on the Constitutional aspects? Like this. Seems surprising to ink a "10 year" deal that quite likely is only good for 18 months (on our side).

David Schraub said...

An interesting link (Ramsay is an excellent scholar, albeit one more originalist than the current median of American law). I don't typical have constitutional thoughts on foreign affairs issues, for two reasons: (1) Foreign affairs power is far from my speciality and (2) foreign affairs constitutional questions are almost never adjudicated (due to difficulties finding a plaintiff with standing, political question doctrine, and other like tools which let the judiciary avoid dealing with topics they'd rather not deal with). When I teach the topic to my students, I stress this second aspect -- while the constitution seems to divide foreign affairs powers between the legislature and the executive, Congress has effectively acquiesced to a presidential takeover of the field and the Court hasn't been inclined to challenge this (indeed, the most important SCOTUS opinion on this point -- Justice Jackson's concurrence in the Steel Seizure Case -- is expressly predicated on examining the degree of harmony or conflict between the executive action and the expressed legislative will.

This is most evident in the warmaking context, where you'll notice that we keep on attacking places without using the constitutional mechanism to declare war. Congress for the most part hasn't pushed the issue and so the Court has let sleeping dogs lie. The ongoing theater over the War Powers Resolution is similar -- the Executive Branch (since Nixon) thinks its unconstitutional, but plays along with the reporting requirements to keep Congress pacified, and Congress accordingly hasn't pressed its case any further.

It is interesting that while executive military action absent a declaration of war has entirely supplanted the declaration of war process, it still seems like the executive agrees that some international agreements must go through the treaty process. This is odd if only because scholars have been arguing for a similar interchangeability of "treaty" and "executive agreement" since at least the 1940s. Certainly, nobody has ever drawn a clear line between what is and isn't a candidate for an executive agreement -- let alone a standard that is judicially-enforceable (as, for example, one distinguishing between "minor" and "major" agreements almost certainly wouldn't be). Even if we were to import in such a standard, though, this agreement does not seem any more "major", for example, than the Algiers agreements between the US and Iran resolving the Iran hostage crisis and creating an arbitration process for ongoing US/Iran litigation (upheld by the court in Dames & Moore v. Regan -- a case, incidentally, I believe that Ramsay thinks was wrongly decided, but which I think would more or less foreclose any challenge to this agreement under current law).

Long story short: The constitutional doctrine in this area is unsettled and has been for a long time. It will almost certainly continue to be unsettled because the judiciary has shown no interest in intervening in this area and tends to allow the democratic branches to fight it out amongst themselves (which, historically, has meant the executive basically doing what it pleases). Ramsay isn't the first scholar to lament that (frankly, I'm unsure how I feel about it), but it has been the political and legal reality for some time now. Especially given that the political branches did work out a mutually-agreed upon process here (Congress has opportunity to "disapprove", subject to presidential veto), I predict that there is virtually no chance that the Court will disturb the outcome of that process.