A Cautionary Tale:

Tyler Cullis
Dec 11, 2014 · 6 min read

How the Mistaken Claims of One Hawkish Think-Tank Put at Risk the Prospects for a Nuclear Deal

Congressional hawks and pro-Israel advocacy groups are railing against the extension of the Joint Plan of Action and are using the claims of one hawkish Washington think-tank — the Institute for Science and International Security (“ISIS”) — to support their push for renewed sanctions on Iran.

In its quarterly report on Iran’s adherence to its Safeguards Agreement released last month, the International Atomic Energy Agency (“IAEA”) reported that Iran had fed uranium hexafluoride (“UF6”) into one of its advanced centrifuges at the Natanz Pilot Fuel Enrichment Plant (“PFEP”). Quickly, this minor detail threatened to explode into a full-blown diplomatic crisis, as ISIS judged Iran to have violated its obligations pursuant to the Joint Plan of Action (“JPOA”) by feeding UF6 into the advanced centrifuge. Its claim was subsequently published by major news agencies.

However, ISIS’s accusation originated first from a basic misreading of the JPOA’s text — an error compounded by ISIS’s subsequent failure to issue a retraction or correction — and later from a flawed interpretation of the “spirit” of the JPOA. Despite its obvious errors, ISIS’s claim has turned fiction into fact in Washington, as hawkish pro-Israel advocacy groups pushed the claim forward and Congress gladly ate up news of alleged Iranian malfeasance.

Analysis Gone Awry

Shortly after the IAEA released its November 7th report on Iran, ISIS drew immediate attention to the IAEA’s finding that Iran “[had] fed UF6 into the single installed [IR-5] centrifuge” at the PFEP. This constituted, according to ISIS, a “possible violation” of the Joint Plan of Action. By ISIS’s reading of the JPOA, “this centrifuge should not have been fed with UF6 as reported in the safeguards report.”

However, ISIS failed to point to any actual text of the JPOA in support of its claim against Iran. For instance, while admitting that Iran was “not precluded from continuing its centrifuge R&D activities under the [JPOA],” ISIS could only produce a conclusory statement that Iran had “agree[d] that it cannot feed [UF6] into any centrifuges that had not been fed with UF6 as of November 2013.”

Only later, in a now-deleted tweet, did ISIS make explicit the textual basis for its claim that Iran had violated the JPOA, pointing to Footnote 1 of the JPOA to argue that, by feeding UF6 into the single IR-5 centrifuge at the PFEP, Iran had violated the terms of the interim deal. According to the JPOA’s Footnote 1, “Iran [would] not feed UF6 into any centrifuges installed but not enriching uranium.” Because both the November 2013 and February 2014 Iran safeguards reports had “stated the ‘single installed IR-5 centrifuge had yet to be fed with UF6’” — as ISIS had noted in their initial analysis — the IR-5 centrifuge was subject to the prohibition laid down in Footnote 1 of the JPOA.

However, as I and others quickly pointed out, ISIS had made a basic interpretive error: Footnote 1 refers to activities at the Natanz Fuel Enrichment Plant (“FEP”), while the single IR-5 centrifuge at issue here was located at the Natanz Pilot Fuel Enrichment Plant — an entirely separate nuclear facility. In other words, ISIS had transferred an obligation imposed on one of Iran’s nuclear facilities to another without any textual basis for doing so.

When challenged on this point, ISIS deleted their own tweet and backtracked on their initial claim, arguing in the alternative that Iran’s feeding UF6 into the single IR-5 centrifuge violated the “spirit” of the JPOA. The intent of the Joint Plan of Action was to “freeze” Iran’s nuclear program, according to ISIS, and that intent should be read into the agreement even where explicit textual support was lacking.

However, what ISIS elided from discussion is that the JPOA does contain a section relevant to Iran’s centrifuge R&D activities: “Iran will continue its safeguarded R&D practices, including its current enrichment R&D practices, which are not designed for the accumulation of enriched uranium.” While publication of the JPOA’s technical annexes would go a long way to aiding in interpretation of this section, there is no clear justification for reading “current enrichment R&D practices” in the way that ISIS has. An alternative reading, for instance, suggests that Iran is permitted, pursuant to the initial terms of the JPOA, to engage in safeguarded R&D practices that go beyond its “current enrichment R&D practices” — something suggested by the use of the word “including” — so long as those practices are “not designed for the accumulation of enriched uranium.”

If the U.S., its P5+1 partners, and Iran had intended to restrict Iran’s permitted R&D activities in the way that ISIS reads the JPOA, it would not have been difficult to draft that language in a clear and concise manner. Footnote 1 of the JPOA provides guidance on how such language could have been drafted. The fact that the parties failed to do so suggests that the shared intent was lacking — likely, because of the difficulties Iran’s negotiators would have had bringing back an interim deal that limited their R&D activities. In the absence of clear signals as to the intent of all parties to the agreement (or of language in the yet-to-be-released implementation agreement), no unilateral interpretation of intent can displace the open-ended text of the JPOA.

Is the Damage Done?

However, the damage created by ISIS’s flawed interpretation of the JPOA has been done. The idea that Iran has violated the terms of the JPOA has gone from the margins to the mainstream over the past few weeks, driven in large part by ISIS’s initial analysis and follow-up reports.

In their briefer on why Congress should pass new sanctions, for instance, the American Israel Public Affairs Committee (“AIPAC”) cited “evidence that Iran has not fully complied with the [JPOA] with respect to both its research and development of advanced centrifuges.” Likewise, in a series of hearings on Capitol Hill, members of Congress pointed to Iran’s feeding UF6 into the single IR-5 centrifuge as proof of Iranian bad-faith. On December 8, House Foreign Committee Chairman Ed Royce piled on, releasing a statement citing ISIS’s report as evidence of Iran’s intent to be a “determined cheater.”

The tide is building on Capitol Hill. If the matter was not so deftly handled by the U.S. and Iranian parties, a claim like this could have collapsed the delicate edifice that the U.S., its P5+1 partners, and Iran have courageously built up over the past year. Nonetheless, with an incoming Republican Congress next month, the bandwidth of the White House to both negotiate a deal with Iran and correct false narratives as they develop on Capitol Hill is limited.

A Cautionary Tale

Not long ago, ISIS’s President, David Albright, had warned against “overstat[ing] the intelligence” on Iran’s nuclear program — a lesson he had learned shortly after witnessing the manner in which intelligence on Iraq’s nuclear program had been marshaled by the Bush administration in support of war. Yet, that lesson has gone unheeded, as ISIS routinely trafficks in accusation — often without a solid evidentiary basis for doing so—and lays the groundwork for the push towards war.

This episode is instructive, however, not just for the vigor with which some in Washington push accusation before calm consideration of the facts, but also for the difficulties the U.S. and Iran will have sustaining any nuclear deal in an environment that will remain hostile for the foreseeable future. It suggests quite clearly that hawks on both sides will be on the hunt for a long time to come, waiting to turn dispute into crisis and undermine any working resolution to the nuclear issue. It is, in short, a cautionary tale for the troubled waters the U.S. and Iran will have to sail for some time before landing in safe harbor.

Tyler Cullis is the Legal Fellow at the National Iranian American Council. He is a lawyer who graduated from the Boston University School of Law with Honors in International Law.

    Tyler Cullis

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    I focus on Iran, int'l law, and whatever else is on the agenda.

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