Operation Merlin: A Violation of NPT Article I by the U.S.

Iran Statement in BoG March 2015

The other day I was reading over Iran’s most recent statement to the IAEA Board of Governors (see it at the above link), which is itself a response to the IAEA’s most recent report on Iran’s nuclear program.  In Ambassador Najafi’s statement, I was struck by the following section:

A small portion of the report, as usual and unfortunately, is the reappearance of the baseless past allegations on which our position is well known. The repetition of such unfounded accusations would not add to their value.
Indeed a recent revelation on manipulation of the evidences on the so-called “possible military dimension” testifies to the correctness of Iran’s statement and proves that all information and documents provided to the Agency on this issue are fabricated. This evidence manufacturing machine case and declassified documents submitted to the court of a member State is now a very new decisive element on the resolution of the so-called PMD issues without which the final
assessment is impossible. All of documents including the “NUCLEAR WEAPONS BLUEPRINTS” presumably intended to emplace in Iran, though never reached its destination, must be provided to the Agency for further examination. In addition, access to all personnel involved in manufacturing artificial evidences against Iran, particularly
interview with recruited foreign nuclear engineer on “Operation Merlin”, must be provided to the Agency.
Since sending the blueprints of nuclear weapons, though flawed, by one IAEA member to any other member is a serious matter, we expect the Agency request the sending country to provide explanations as well as original blueprints to the inspectors for further examination.
In our view, from now on, PMD should stand for Predominantly Manufactured Dimension.

Readers will recall that I wrote a post last week on the most recent developments in the legal case against Jeffrey Sterling, a former CIA officer who has now been convicted of having leaked details about Operation Merlin, to which Ambassador Najafi referred by name in his statement, to journalist James Risen.

Again, you can look up the details about Operation Merlin in lots of places. One good brief excerpt from Risen’s book on the operation can be found in this Guardian article. The basic gist is that back in 2000, the CIA hired a former Russian nuclear scientist to pass along to Iranian officials – specifically the Iranian representative to the IAEA in Vienna – blueprints for a critical element of a nuclear weapons design, that were complete and accurate except for at least one intentionally included technical flaw.  The idea was that the Iranians would accept these blueprints gladly, and follow them to the letter in their attempts to construct a nuclear weapon. The CIA’s assessment was that the Russian-origin design information they were providing Iran was significantly advanced in comparison to anything Iran had or could otherwise procure through open sources at the time. So, went the theory, the Iranians would take the bait and create a nuclear weapon along the lines of the design being provided to them in the flawed blueprints, but would ultimately be disappointed and embarrassed when the device they created thereby was tested and proved to be a dud. Furthermore, according to the plan, Iran would have by that point invested time and resources in the decoy project, that could otherwise have been invested in more potentially successful avenues toward creating a bomb, and so the operation would have succeeded in imposing an opportunity cost on Iran, and in delaying their success in acquiring a functioning nuclear weapon.

As Risen reports, the plan went pear-shaped when the Russian scientist courier discovered the technical flaw, and warned the Iranians about it through a letter enclosed with the blueprints.

Operation Merlin is now generally considered to have been an ill-advised (read boneheaded) idea, and isn’t something the CIA is proud of. In fact, in the worst case scenario of its consequences, the weapons design provided to Iran by the CIA might actually have helped Iran in its development of a nuclear weapons manufacturing capability. As Risen observes in the Guardian excerpt:

Iran has spent nearly 20 years trying to develop nuclear weapons, and in the process has created a strong base of sophisticated scientists knowledgeable enough to spot flaws in nuclear blueprints. Tehran also obtained nuclear blueprints from the network of Pakistani scientist Abdul Qadeer Khan, and so already had workable blueprints against which to compare the designs obtained from the CIA. Nuclear experts say that they would thus be able to extract valuable information from the blueprints while ignoring the flaws.

In a Bloomberg piece last week, Jonathan Tirone also reported that, due to the revelations about Operation Merlin that have been made in the context of the Sterling case, the information the IAEA has received over the last decade from third party states, including the U.S., regarding Iran’s nuclear program, and specifically regarding allegations of military dimensions to Iran’s nuclear program, will now likely have to be reviewed by the IAEA.

So, not the CIA’s finest hour.

But going back to Ambassador Najafi’s recent statement to the BOG, he says that the providing of nuclear weapons blueprints by one IAEA member state to another, even if flawed, is a serious matter, and he requests that the IAEA investigate the case further. This phrasing got me to thinking. He is right, after all, that this is exactly what happened. A NPT NWS party (the US) did intentionally provide nuclear weapons design information to a NPT NNWS party (Iran). There were intentional flaws in the designs, yes. But again, the whole idea was that these designs overall were more advanced than anything Iran had or could otherwise get. That was the intended bait. And indeed, Risen quotes unnamed experts who assessed that Iran likely would have been able to derive useful information from these blueprints, even with the flaws. I’ve heard this same assessment anecdotally from other people with nuclear weapons knowledge.

So notwithstanding an alternate specific intent, we have here a case of a NPT NWS voluntarily providing information to a NPT NNWS that, one can infer, assisted or is likely to in fact have assisted that NNWS in its understanding of how to manufacture a nuclear weapon.

Now let’s go back and read NPT Article I, paying particular attention to the italicized (by me) text:

Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Don’t we have here a pretty solid case for a violation of NPT Article I by the US?  Doubtless the rebuttal would be that there was no intent to assist Iran in its weaponization understanding, and that any assistance provided was accidental.  But the law of state responsibility for internationally wrongful acts does not include a mens rea, or mental requirement, as would be required in either domestic or international criminal law.  Nor does it require a particular failure to uphold a burden of care (i.e. negligent or reckless behavior), as common lawyers are used to finding in tort law (even though I would say that there was a reasonable foreseeability here that giving nuclear weapons blueprints to Iran might indeed assist them). Rather, the International Law Commission’s draft articles on state responsibility are based on the principle of objective liability, without a particular requirement of fault.  As stated in Article 12:

There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.