Leverage

“Give me a place to stand and, with a lever, I will move the whole world.” -Archimedes

As a practicing attorney, I am constantly seeking to gain an advantage in negotiations and, therefore, create “leverage” for my clients. What is true in business is also true in the world of high-stakes diplomacy.

When negotiations began, between Iran and the five permanent members of the United Nations Security Council (France, the UK, Russia, China and the US) joined by Germany, commonly referred to as the P5+1, regarding the former’s nuclear program, the world community enjoyed a substantial amount of leverage on the Iranians.

In the years running up to the Joint Plan of Action (“JPA”) signed in November 2013, setting the parameters for the negotiation of a comprehensive agreement, Iran had been subjected to crippling economic sanctions enacted into law by the United States Congress, enforced by the Obama administration and endorsed by the world community through several resolutions passed by the United Nations Security Council and accompanying legislation in the EU.

This set of sanctions precluded Iran from doing business with the rest of the world and, as a consequence, crippled its economy by having the value of their currency, the Rial, fall precipitously, making life for the people of Iran more challenging and, therefore, exacted tremendous pressure on the regime to, either, seek relief or face collapse.

It was under this geopolitical environment of a resolute international community armed with a robust sanctions regime, leadership from the United States and the West, and, an Iranian economy in shambles, that compelled the, then newly elected President of Iran, Hassan Rouhani, to seek an agreement from the P5+1.

Let me be clear, there is no doubt in my mind, or in the mind of most serious analysts, that the nature of Iran’s nuclear program is not peaceful but, rather, military.

Over the last 20 years, Iran has gone to great lengths to build and hide its nuclear infrastructure, most notably at the reinforced underground facilities at Fordow and Natanz, and to deceive, obfuscate and lie to the international community as to the extent and nature of the same.

While Iran claims its nuclear program is for peaceful purposes (the pursuit of nuclear energy and medical isotopes), it has sought uranium enrichment beyond acceptable levels (5%), it has continued to work in the military dimensions of its program, by, among other things, experimenting in the design and deployment of intercontinental ballistic missiles (“ICBM”) and trigger systems and, in parallel, is seeking a plutonium path to a weapon, by building a heavy water reactor at Arak.

Experts have reiterated that, uranium enrichment beyond 5%, the development of trigger systems, the testing and deployment of ICBMs and the construction of a heavy water reactor, are not compatible with a peaceful nuclear program but, ratherm have the goal of turning fissile material (uranium or plutonium) into weapons of mass destruction.

As stated before, in an attempt to push the Iranian regime to change its calculus and, through diplomatic efforts, comply with international law and forgo its nuclear pursuits, the outlined sanctions regime was developed and implemented and, at the same time, the US and its allies, mostly Israel, sent a loud and clear message to Iran in the sense that, should sanctions and diplomacy fail in persuading the Iranians, then, the world’s military assets would be deployed to, at least, delay the progress of the program or, at best, destroy it or prevent the same from being restarted, just as it happened when Israel bombed the nuclear reactor at Osirak, Iraq in 1981 and, allegedly, the nuclear reactor found in Syria in 2007.

Therefore, it was this multipronged formula consisting of, a robust sanctions regime, a uniformed international diplomatic initiative led by the P5+1, and, a credible threat of the use of force led by the United States, that created the conditions that compelled Iran to come to the negotiating table and discuss, as originally outlined by world leaders and buttressed by several UN Security Council Resolutions, the dismantlement of its nuclear program and the military dimensions to the same.

While the signing of the JPA proved that the formula worked,it seems that in the process of negotiations, something has gone awry and the clarity of purpose has been clouded.

Somehow, in the course of the last 15 months, the international community’s position on Iran’s program has materially shifted. We have gone from,

• Prior to the JPA, demanding a full dismantling of the infrastructure to, then,
• In the context of the JPA, recognize a right by Iran to enrich  uranium (contrary to that provided in many UNSC Resolutions) to, now,
• As reported as being negotiated, a policy of détente for a specific period of time (10-15 years), to, eventually,
• An unconditional recognition of Iran’s right to an unrestricted nuclear program once the proposed comprehensive deal “sunsets.”

One has to ask itself, how did we get here? What events shifted the dynamics of negotiation to, seemingly, provide Iran with such level of leverage that, now, it seems like it is the P5+1 who are more desperate to complete a “deal” than the Iranian regime and are unwilling to walk away? Significant debate has been had on this subject.

Some, mostly within the Obama administration, argue that a deal in the terms initially outlined by the world community (full dismantling) is unfeasible and impractical because we cannot “unteach” the Iranians what they’ve already learned.

Some have speculated that the calculation being made by the P5+1 is that, by signing this deal and becoming a “provisional” member of the world community, the Iranians will either, moderate, or, better yet, in that time, the regime will crumble and Iran’s history as a flourishing culture will reemerge.

I just don’t buy either of those arguments, nor am I willing to take the gamble to prove me wrong. Why you ask? Here is why,

Even within the course of negotiations, when Iran has been “bending over backwards” to “charm” the world and demonstrate moderation through its President, Mr. Rouhani, and its Foreign Minister, Mohammad Zarif, they, along with Iran’s Supreme Leader, Ayatollah Ali Hosseini Khamenei, continue to, among other things,

• Call for the destruction of America and Israel,
• They continue to act as the world’s foremost State sponsor of terror by funding and sustaining organizations like Hamas and Hezbollah,
• Supporting the murderous regime of Bashar al-Assad in Syria, yes, the same Assad that has used chemical weapons and has murdered 220,000 of his own people, and
• Iran openly threatens its Arab neighbors and seeks to dominate the Middle East, first, and the world, eventually and, today, controls four capitals in the region, Sana’a in Yemen, Baghdad, Damascus and Beirut.

If Iran behaves likes this without a nuclear weapon, how do you think they will behave if they were to ever acquire the capabilities to obtain such weapons? I am not interested in finding out, are you?

So, I come back to leverage. While it seems that in the scope of the negotiations, the leverage has shifted to Iran, reality is materially different.

Since it was the sanctions that brought Iran to the negotiating table, it is precisely, the permanent lifting of these sanctions that Iran seeks the most.

A comprehensive agreement that only provides temporary or partial relief from sanctions is of little to no value to the Iranians.

Value to the Iranians is the ability to maintain their nuclear infrastructure, as it seems like the P5+1 is willing to concede while, most importantly, become free from sanctions.

Enter, the United States Congress. A body that, until now, has been shutout of the negotiations and whose role has been purposely diminished in this process, yet, the US Congress holds the absolute power to grant Iran the one thing they seek the most, and is the only thing that the negotiators cannot unilaterally provide: permanent relief from sanctions.

Since several Acts of Congress created the sanctions regime, to remove these sanctions will also require an Act of Congress.

Therefore, while, within the scope of the sanctions legislation, the current President of the United States, any President for that matter, can issue waivers and choose, to, partially, relax the sanctions regime, as has been the case during the pendency of the JPA, only Congress can permanently remove the sanctions by repealing the different laws that established them.

Why is permanent sanctions relief critical to Iran? In Clintonian terms, “it’s the economy, stupid”. Iran needs for the sanctions to be permanently lifted for its economy to reactivate.

Sophisticated investors will not engage in business dealings with Iran and pour millions of dollars into the Iranian economy, if the relaxation or waiver in the enforcement of sanctions can be reversed, by a stroke of a pen, by the current or any subsequent President. Multinational companies will want a minimum level of certainty, as to the legal standing of their investments and will not engage, significantly in Iran, if the sanctions can be reimposed by executive action. To get the agreement it seeks, Iran will need for the US Congress to support the termsof the same and, eventually, fully repeal the sanctions.

As it turns out, contrary to the current political dynamics, the ultimate fate of a comprehensive agreement, that seeks the permanent removal of sanctions, resides solely, within the discrete legislative authority of the US Congress.

Perhaps Congress should be allowed to weigh in on the overall terms of the deal, after all, it’s in the best interest of all parties that they do.

Leverage, my friends, is a finicky “female dog.”