Dershowitz: The Case Against the Iran Deal

2015-08-05T172607Z_116046601_GF20000014425_RTRMADP_3_IRAN-NUCLEAR-OBAMA
President Barack Obama defended the Iran nuclear deal at American University in Washington on August 5. Jonathan Ernst
/Reuters

What does the future hold? Will Iran obtain a nuclear arsenal? If so, when? Will it become a “game changer?” If so, how will things change?

“Predicting is hazardous, especially about the future,” says a quote attributed to various wise men. But prediction is essential to policy choices, despite the hazards of making a mistake. Some predictive mistakes, however, are more costly than others.

President Obama is staking this deal on a series of predictions—“bets,” “rolls of the dice” and “faith”—that include the following:

  • Under the deal, Iran is less likely than without a deal to develop a nuclear arsenal in the short, medium, and long term;
  • Under the deal, the Iranian regime is more likely to become part of the community of nations and to change its status from an outlaw nation that tyrannizes its own people, exports terrorism, hegemonizes its Arab neighbors, and threatens to annihilate Israel;
  • War in the Middle East is less likely under the deal than without it.

There are other unintended consequences that, though unpredictable, may flow directly or indirectly from the deal. They include the following:

  • New alliances may form in the Middle East. It was predicted that Saudi Arabia may have to become closer to Israel because of their common enemy. But the opposite may result as well: seeing the handwriting on the wall, and sensing the growing strength of Iran and the shrinking influence of the U.S., Saudi Arabia may begin to hedge its bets by moving closer to Iran.

To demonstrate how unpredictable the Middle East is, within days of the deal being signed, the king of Saudi Arabia met with the leaders of Hamas, a virulently anti-Israel terrorist organization that is both an offshoot of the Muslim Brotherhood and a client of Iran—both of which the Saudis have long regarded as mortal enemies. But in the Middle East, power attracts, and this deal empowers Iran as never before.

  • Iran, with hundreds of billions more dollars in its treasury, may increase its funding of terrorism by surrogate groups such as Hezbollah and others in various parts of the Middle East. On the other hand, as a regional superpower, it may have a growing interest in stability and in defeating other terrorist groups, particularly ISIS (or ISIL) and Al-Qaeda.
  • Despite its insistence that this deal does not reduce its enmity toward the U.S., it is possible that it may, over time, empower those within the Iranian regime who are less hostile to America, especially following the demise of Ayatollah Ali Khamenei. This deal is—and is seen in Iran as—a major victory for the Islamic Republic, and the victory was brought about largely by “moderates”—a relative term when it comes to Iran—over the objection of some of the most hard-line elements in the regime.

Although the Iranian leadership regards the U.S. as having shown weakness in its negotiation, and although it regards the threat of any military action by the U.S. as having been dissipated, it still understands that America has the most powerful military in the world, that Obama will not be president for long, and that the outcome of the 2016 election is unpredictable. So even if the Iranian regime makes decisions based on power rather than principle, the enduring military and economic power wielded by the U.S. and its allies creates a disincentive toward escalating the conflict—at least until Iran becomes a nuclear weapons power.

  • This brings us to the most unpredictable consequence of the deal: If and when Iran breaks out and develops a nuclear arsenal—and that may happen in a decade even if the Iranian leadership complies with the deal in full—how will it deploy its newfound power? President Obama has told us that an Iran with nuclear weapons would be a “game changer” that would be dangerous to our national security interests and those of our allies.

Is there any reason to believe that it will be less of a game changer in 10 years than it would be now? That is certainly what the president—and indeed the rest of the world—hopes will happen, but we cannot predict such a positive outcome with any degree of confidence, because although 10 years is a blink of an eye for purposes of assessing dangers to national security, it is an eternity for purposes of making predictions.

That is why this deal is indeed a roll of the dice—or perhaps more aptly a game of Russian roulette for us and our allies. Although the odds of losing in Russian roulette are only one in six, no one would praise a leader who got us into a situation where playing Russian roulette is the best alternative available, especially if we got into that situation by putting our own weapons away.

Having concluded that the negotiations with Iran were deeply flawed and that the resulting deal is extremely dangerous, it might be expected that I would advocate its rejection by Congress by means of overriding the promised presidential veto.

But the latter conclusion doesn’t necessarily follow from the former. Perhaps one of the worst consequences of the negotiation and deal is that they put us in a position where rejecting a bad deal may be worse than accepting it. It is impossible to know.

If the deal were to be rejected by Congress, and accepted by Iran, most of the sanctions—those imposed by the Security Council, by our Western European partners, by China and Russia, and even those imposed by the president without congressional approval—would quickly disappear. The crippling sanctions regime would end, and Iran would get much of the hundreds of billions of dollars of sanction relief it has been seeking. Secretary of State John Kerry acknowledged this in an interview on July 19 on Face the Nation:

"If Congress says no to this deal, then there will be no restraints on Iran. There will be no sanctions left. Our friends in this effort will desert us."

Moreover, the military option would remain off the table, because it can be deployed only by the president, not by Congress, and President Obama is now not likely to use military force to prevent Iran from developing nuclear weapons.

When Secretary Kerry said “there will be no restraints on Iran” if Congress rejects the deal, he was telling us and Iran that no military constraints would be imposed, despite statements that all options remain on the table. That is certainly the way the Iranian leaders see it, as evidenced by Ayatollah Ali Khomeini’s statement on May 6 that the Iranian nation "does not tolerate negotiation under the shadow of threat” and that the U.S. cannot “do a damn thing.” Israeli officials view Kerry’s statement as “thinly veiled efforts to muzzle criticism” of the deal.

Dershowitz_FINAL (6) The Case Against the Iran Deal: How Can We Now Stop Iran from Getting Nukes?, by Alan Dershowitz Jay McNair, RosettaBooks

My proposal, made in September 2013 and echoed recently by Thomas Friedman, is that Congress should now authorize the president “to use force to prevent Iran from ever becoming a nuclear weapons state.” But such a law would merely authorize, not compel, the president “to destroy—without warning or negotiation—any attempt by Tehran to build an atomic bomb.” It would be a good step to take, whether or not the presidential veto of a vote disapproving of the deal were upheld.

The result of a congressional rejection of the deal could be a win-win for the Iranian regime, because they would have accomplished their three goals—ending most of the sanctions, taking the military option off the table, and presenting themselves to the international community as reasonable leaders who were willing to sign the deal.

But if Congress were to reject the deal, the Iranians would not feel bound to honor its provisions regarding centrifuges, inspections and other constraints—temporary though they may be—on moving toward becoming a nuclear weapons power. Indeed, there is a cautionary tale to be found in our recent history: The failure of the Republican-controlled Congress to fully implement the terms of President Clinton’s nuclear agreement with North Korea provided an excuse for that country to renege on the terms of the deal, and successfully resume its pursuit of nuclear weapons.

So President Obama may well be correct when he says that the current deal is “a better outcome for America, Israel, and our Arab allies than any other alternative on the table.” But even if that were true—and it is speculative at best—it is damning with faint praise if all the available outcomes are bad, and if President Obama got us into the situation when there could have been better alternatives that are now no longer on the table.

This variation on Hobson’s choice—call it “Obama’s choice”—would not have been necessary had President Obama kept, and communicated to Iran, the promise he repeatedly made before he was re-elected: namely that “we are determined to prevent Iran from acquiring nuclear weapons [so] rest assured, we will take no options off the table. We have been clear.”

If Iran had been persuaded that the U.S. would never allow it to develop nuclear weapons, and that enduring the crippling sanctions was therefore foolish, it might well have accepted President Obama’s original red lines. But because the Obama administration changed its policy after his re-election and the subsequent midterms—from prevention to containment and from permanent to temporary—the Iranians were able to outmaneuver us.

The entirely preventable result may well be that within a decade, Iran will have a nuclear arsenal that in President Obama’s own words will “pose a security threat not only to the [Middle East] but also to the United States.”

It is possible, of course, that Obama’s “bet”—his “roll of the dice”—could produce the result we all hope for: namely a reformed Iran that does not pursue its nuclear weapons ambitions when the deal allows it to continue to spin centrifuges capable of producing nuclear weapons.

If the bet pays off, and the deal encourages Iran to give up its role as a rogue-state sponsor of terrorism that threatens the stability of the Middle East and Israel’s existence, and Iran rejoins the international community, then it will become a positive legacy for President Obama—perhaps his most important international accomplishment. This possibility should encourage the Obama administration in its waning months to do everything in its power to move Iran in this direction so that the hope for a good outcome is realized.

But hope is different from “faith,” though neither is an appropriate basis on which to “roll the dice” on a nuclear deal that might well threaten the security of the world.

Because the stakes are so high, Congress has an especially important constitutional role to play as the primary institution empowered to serve as a check and balance on the executive branch. Under our Constitution, the power to make long-term foreign policy decisions that affect the security of our nation and the world is vested jointly in the executive and legislative branches. President Obama has sought to diminish the role of Congress with regard to the Iran deal by:

  • Declaring it to be a sole executive agreement rather than a treaty or a joint executive-legislative agreement;
  • Initially opposing even the Corker Bill and then promising to veto any rejection of the deal by Congress;
  • Agreeing to submit the deal to the United Nations Security Council before Congress had the ability to consider it;
  • Trying to marginalize opponents of the deal as politically motivated partisans who are the same people who pushed us into war with Iraq, and who present “overheated and often dishonest arguments…”;
  • Describing the only alternatives to the deal as either Iran quickly developing nuclear weapons or America going to war with Iran, and insisting that this deal is better than any alternatives now on the table.

In order to determine whether rejecting the deal at this point would be worse than accepting a bad deal that could have been a lot better, it is imperative that Congress perform its constitutional duty to check and balance the executive branch by asking and demanding answers to the following questions:

  • Even after the expiration of the nuclear agreement, does Article iii. of the “Preamble and General Provisions”—stating that “…under no circumstances will Iran ever seek, develop or acquire any nuclear weapons”—mean that Iran would be found in breach of its commitments under this deal were it to try to develop a nuclear bomb after 10 years? If so, what would be the consequences? Will the president explicitly state that his understanding of the deal is that it precludes Iran from “ever” seeking to “develop or acquire any nuclear weapons”? Will the other P5 plus one? Will Iran?
  • After the major constraints contained in the deal end, or were the deal to collapse at any point, how long would it take Iran to produce a deliverable nuclear bomb?
  • Would the United States allow Iran to begin production of a nuclear arsenal when the major constraints of the deal end?
  • Does the deal reflect a reversal in policy from President Obama’s pre-re-election promise that “my policy is not containment; my policy is to prevent them from getting a nuclear weapon”?
  • If not, will President Obama now announce that it is still the policy of the United States that Iran will not be allowed to develop a nuclear weapon? And will he sign legislation, as advocated by Thomas Friedman, myself, and others, that authorizes “this President and future presidents to use force to prevent Iran from ever becoming a nuclear weapons state”?
  • How exactly will the inspections regime work? Precisely how much time will the Iranians have between a request for inspection and the inspection itself? What precisely will they be permitted to do during this hiatus? And why do they need so much time if they don’t plan to cheat?
  • What will President Obama do if Iran is caught cheating on this deal during his administration?
  • Precisely when will which sanctions be lifted under the agreement? Do provisions that prevent the P5 plus one from imposing new sanctions apply even if Iran is found to be in violation of its commitments under the agreement? When exactly will sanctions prohibiting the sale of weapons, and particularly missile technology, be lifted?

If and when these and other important questions about the deal are answered—directly, candidly and unambiguously—Congress will be in a better position to answer the fundamental questions now before it: Would rejecting this deeply flawed deal produce more dangerous results than not rejecting it? If so, what can we now do to assure that Iran will not acquire a nuclear arsenal? The answers to those questions may profoundly affect the future of the world.

Alan Dershowitz is an emeritus professor of law at Harvard Law School. This is extracted from The Case Against the Iran Deal: How Can We Now Stop Iran from Getting Nukes? by Alan Dershowitz, published by RosettaBooks.

0807_Dershowitz_01 Alan Dershowitz is an emeritus professor of law at Harvard Law School. His new book, The Case Against the Iran Deal: How Can We Now Stop Iran from Getting Nukes?, is available as an eBook and on Aug. 11 as a paperback. Alan Dershowitz