06 Oct 2017 President’s Decision on Recertification Alone Doesn’t Change Iran Deal in National Security and Defense

As part of its attempt to create appropriate oversight of the Iran nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA), Congress mandated that the president, every 90 days, certify that the deal meets four specific criteria. The next deadline for certification looms on October 15. According to media reports, President Trump is expected to announce on October 12 his decision to withhold certification. While there is much that is not yet clear about what such non-certification means for U.S. policy on Iran and the future of the Iran deal, there are certain things we know that it does not mean.

1. It does not mean Iran is not complying with the deal

The certification requirement is often described as certification of Iranian compliance with the JCPOA. While this is a useful shorthand it can also be misleading; compliance is not all that certification is about. In fact, the Iran Nuclear Agreement Review Act of 2015 (INARA) put in place four conditions that the president has to certify are true every 90 days:

• Iran is transparently, verifiably, and fully implementing the agreement;
• Iran has not committed a material breach;
• Iran has not taken any action to advance its nuclear weapons program; and
• The terms of the deal are vital to the national security interests of the United States.

The operative word in all of this is the one joining these four certification criteria: “and.” All four conditions must be in place for certification to be appropriate. Thus, if the president believes that any of the criteria is not being fulfilled, he would be justified and required under INARA to not certify the deal. Given President Trump’s past statements about JCPOA being the “worst deal ever,” it is highly likely that he believes the deal to not be in the national security interests of the United States and could withhold certification on that ground alone (criterion #4). And, as past BPC analysis of the deal has shown, the president has some good reasons to be dubious of the deal’s long-term value. Indeed, the president could even have grounds to find that the deal is not being fully implemented (criterion #1).

By itself, the president’s decision to not certify the Iran nuclear deal will change nothing.

Criticism of the president’s planned announcement focused solely on Iranian compliance with the deal is misplaced. Even though Iran is largely complying with the terms of the deal and not in material breach, that alone is not sufficient reason, under the terms of INARA, to recertify the deal.

2. It does not mean the United States is pulling out of the JCPOA

The certification requirement created by INARA is entirely separate and distinct from the JCPOA. There is no condition in the JCPOA that requires the U.S. president to certify the deal in order for the deal to remain in place. Indeed, there is no provision that prevents the president from harshly criticizing the deal. The obligations imposed on the United States by the JCPOA have to deal primarily with sanctions relief. So long as the sanctions that the deal requires to be lifted remain lifted, the United States is complying with the JCPOA. By itself, the president’s decision to not certify the deal will change nothing.

3. It does not mean automatic or even certain reintroduction of U.S. sanctions on Iran

Under the terms of INARA, lack of presidential certification of the deal opens the door to reimposition of sanctions against Iran. But that process is not automatic. Instead, per the legislative text, “In the event the President does not submit a certification…, qualifying legislation introduced within 60 calendar days of such event shall be entitled to expedited consideration.”

Thus, first a senator would have to introduce specific legislation within the allotted time period of 60 days to reimpose sanctions and then a majority of the Senate would have to vote for it. But so far there has been little indication that there is any desire in Congress, or even sufficient bandwidth between October and December, to take up such legislation. Even Sen. Tom Cotton, calling for the president not to certify the deal in a speech earlier this week, has suggested that Congress would not yet act to put sanctions back on Iran.

4. It does not mean renegotiation of the deal

President Trump has made no attempt to hide his dissatisfaction with the Iran deal or his belief that the deal needs to be renegotiated. Refusal to certify the deal will, by itself, be yet another opportunity to restate this position. As discussed above, nothing automatically follows from the president’s non-certification. It does nothing to alter the deal, put in place any sanctions or other form of leverage against Iran, or open any chapter of negotiations on Iran’s nuclear program. The most that can be said of non-certification is that it puts Iran, as President Trump’s first national security advisor, Michael Flynn, said, “on notice.”

The most that can be said of non-certification is that it puts Iran… “on notice.”

 

5. It is not an Iran policy

Given these limitations of what non-certification accomplishes, on its own it does not amount to a policy on Iran’s nuclear program let alone a comprehensive U.S. Iran policy.

There are legitimate concerns about the deal itself, namely that it will allow Iran to obtain a legitimate nuclear weapons capability in the next 15 years. There are legitimate concerns about issues outside of the scope of the JCPOA, such as Iran’s rapid development of new ballistic missiles. And there are regional issues that include Iran’s support for terrorist and insurgent proxies that have brought death, destruction, and upheaval to Iraq, Syria, and Yemen, and threaten many of America’s partners in the Middle East. All of these issues must be addressed for the United States to protect its significant and enduring interests in the region; none of them are addressed by non-certification of JCPOA alone.

Hopefully, the president’s speech will contain, as media are now reporting, more than just an announcement of non-certification and instead lay out a strategy that addresses all these concerns.