Monday, December 14, 2009

Is it time for the lawyers to go home?

Remember how Barack Obama reserves the right to ignore international standards in defending his nation?
To begin with, I believe that all nations - strong and weak alike - must adhere to standards that govern the use of force. I - like any head of state - reserve the right to act unilaterally if necessary to defend my nation. Nevertheless, I am convinced that adhering to standards strengthens those who do, and isolates - and weakens - those who don't.
"Standards" such as the UN Charter, a binding treaty that the US ratified and whose negotiation the United States played the leading role in directing, that prohibits unauthorized attacks on other nations. Here is Article 2, part 4:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
What is legal and what is not legal is often a very interesting question. So interesting that it is possible to ignore more important questions in favor of this one that sometimes is not the most important consideration.

The important questions regarding Iran's nuclear program are how many centrifuges is the West willing to accept, and how large a stock of LEU is the West willing to accept on Iranian soil. The conflict can be resolved if Iran and the West come to an agreement on these two questions, possibly combined with incentives such as reducing sanctions already in place and will not be resolved before these two questions are answered.

We've reached the point where even if Iran's nuclear program is the most illegal activity ever carried out by a nation in human history, the benefits to the nation of the program vastly outweigh, vastly, any consequence the US can arrange for Iran to be forced to pay for it. As Iran's nuclear capability stabilizes, Iran becomes immune to threats of foreign attack or invasion. Because of how virtual weapons work, Iran will never have to build a weapon. Knowing Iran could build a weapon will prevent the US from acting in a way that could invite the crisis it would take to cause Iran to exercise its weapon option. This deterrence will remain even after Iran loses its huge current deterrence when the US sheds its vulnerabilities in Iraq and Afghanistan.

Legal arguments can be made back and forth. Even before Barack Obama's proud announcement, during his Nobel Peace Prize acceptance speech, that probably the single most important international law of the last century is a "standard" to be ignored at his discretion in the name of protecting his country from hypothetical threats that only he evaluates, these arguments have seemed to ignore important realities. What if Iran's program is illegal, but sanctions and military attacks just would not work to prevent the program from reaching its goal? When legality or illegality does not make a practical difference, we're done with the lawyers. They can go home now.

One interesting idea to keep in mind is that a team of Western negotiators from 2009 would very easily come to an agreement with a team of Iranian negotiators from 2006. The 2006 Iranian negotiators would have been very happy with caps of fewer than five hundred centrifuges and less than 300 kg of LEU for maybe the next ten years, at which point it would be possible for the deal to be renewed.

The ground has been steadily shifting in Iran's favor ever since then. And importantly the sanctions and other measures taken against Iran have created a sense on the Iranian side that it has earned, and paid for, its advances to this point. I can fairly safely project that a team of 2013 Western negotiators would jump at holding Iran's LEU stock under one ton, and limit Iran's enrichment to fewer than four thousand centrifuges all at one facility.

But instead of facing a 2009 Iranian negotiating team, which probably would accept that offer, the 2013 Western negotiators will face 2013 Iranian negotiators who will feel that the delays in Bushehr and in the S-300s and the trade, energy and investment deals the US interfered with were an investment Iran was forced to make for a more capable nuclear program, that Iran by then will not be willing to relinquish.

So instead, Western negotiators are going to try to engage Iran in a debate about whether or not it is legal to plan tests on technology in nuclear weapons. Then they'll engage Iran in a debate about unsourced documents, and how they impact the legal obligations of IAEA members. Meanwhile they'll stumble forward until they find themselves in 2013 when they'll feel very generous offering that Iran revert to its 2009 nuclear program, which Iran will reject.

The question of what is legal or not is no longer an interesting question, but if Western analysts want to keep asking it, I guess that's in the long term better for Iran.


Anonymous said...

I found this interesting article

Arnold Evans said...

Gary Samore is an interesting figure in the Western anti-proliferation community. He makes the same mistakes everyone else makes and his membership in Obama's policy staff lends credence to the theory that, contrary to my belief that the Obama administration has begun discussions of a deal that was in reach before the Iranian position changed, the Obama administration, as Porter says, really thought it was tricking Iran into giving up most of its uranium so that it could work for a full suspension next year.

I still have to say that the plan Porter is describing seems so stupid that I cannot imagine professional diplomats giving it a try.

Every Western non-proliferation analyst I've read from outside the administration in 2009 has said that the US should give up on the unattainable objective of a suspension and instead come up with an acceptable amount and arrangement for enrichment.

Samore's paper in 2008, if memory serves, was literally the most recent argument for trying for a suspension from a source at the time outside of the administration.

Dennis Ross also said in an interview sometime earlier this year that the US has to prevent enrichment because if Iran gets it, the Saudis and Egyptians will want it.

But there is a solid consensus that the goal is unattainable. That consensus began forming very early. As secretary of state, Colin Powell said Iran is willing to absorb the type of sanctions we'd be able to get. Since then, the idea that it is plausible to stop Iranian enrichment has become an increasingly minority view.

It is a dumb, counter-productive view, and it is hard for me to imagine the administration really holds it, and isn't just saying that for an audience. John Kerry saying the view was dumb reinforces my doubt that it is the true administration position.

On the other hand, Samore and Ross are both in the administration, and they hold that view. It could be that the only people in Washington who still really believe Iranian enrichment can be stopped actually work for Obama.

I'll write a post about your link and links to Samore's 2008 paper which is at the Brookings Institution website

The Brookings Institution does very poor Iran analysis generally. Samore's paper is usual for where it's hosted.

It could well be that the Obama administration is less clever than I give it credit for. I'm continuing to hope not, but no clever or not-so-clever action the US can take will prevent Iran from maintaining its nuclear weapons capability.

b said...

Arnold - you misread the Obama administration.

Dennis Ross at least wants war. Not this or next year, but as soon as possible. For now he wants more sanction and when they will not work(they wont), calls for war will get louder up to the point where a blockade (an act of war) or something stupid like that will follow and Iran will have to act more aggressively.

It is that simple. Try to analyze what the administration does from that point and see if the facts fit.

Lysander said...

I think b is quite correct about Dennis Ross. He is, in essence, an agent of a foreign government and his orders are to try to maneuver the US into a war. He will try to do so using the framework b describes. It will be "sanctions have failed and so we must resort to war" or "the rest of the world wont follow us in sanctions and so it falls upon the US, yet again, to catty the burden for the rest of the self interested world and resort to war."

Whether he succeeds is a different matter. It took over a decade for the neocon movement to gin up their war against Iraq. And they were starting from a much more favorable position for the US. A decade from now Iran should have developed a breakout capability, precluding the use of force.

In the meantime, I don't think the Pentagon wants a war with Iran at all. Expending more resources in Afghanistan pretty much gives away their hand.

For the time being, the generals have more influence in Washington than The Lobby.

Indeed, Ross' strategy may backfire upon its authors. A few years from now, the US' position in Af-Pak may be much worse. Iran's nuke program will be more developed. Oil might be substantially more expensive if (when) stagflation becomes prevalent. Hizbullah will have acquired even more weapons.

Arnold Evans said...

The generals beating the pro-Israel lobby has been the story of the Middle East since in Bush's second term.

I was sure the US was working to break Iraq up - the US congress had even expressed support for that option. The generals, I think mostly because of Turkey, and in agreement with Iran, decided at the last minute to stop that project.

When the Iraqi constitution was written in the US embassy, it clearly was putting a break-up of the country into place.

By the time Bush left office, he was ignoring the terms he lobbied for.

Ross is part of the Obama administration because Obama does not fight entrenched interests as a matter of psychological composition, on domestic or foreign matters. The pro-Israel lobby is an entrenched interest and Obama is not confronting it head-on.

So what we're left with is Ross, not in a position to overpower the generals directly, but in position to discredit the administration, for example, either making the Balochistan attack possible or making US denials of participation non-credible, while at the same time not actually setting the direction of US/Iran policy.

It's unfortunate, but that's how Obama works.