New Article by Muhammad Sahimi
Posted: July 25, 2013 Filed under: Nuclear 4 CommentsProfessor Muhammad Sahimi of USC has just published an article in the Cairo Review of Global Affairs, recounting and analyzing the history and dilomacy surrounding Iran’s nuclear program. THIS IS A MUST READ, PEOPLE!
Should the Entire NAM Collectively Withdraw from the NPT?
Posted: July 23, 2013 Filed under: Nuclear 34 CommentsSince Hossein Mousavian wrote his powerful piece a few weeks ago on the choices Iran’s new leadership has in dealing with its dispute with the West over its nuclear problem, there’s been a good deal of discussion about one of the options he outlined in particular: withdrawal by Iran from the NPT. In my post about Mousavian’s article, I cited to some things I’ve written on this subject recently as well.
Others have, however, written very thoughtful pieces on whether it would be wise or productive for Iran to withdraw from the NPT, reaching mostly negative conclusions. See here and here in particular for quality pieces.
I think overall these commentators are correct to say that it would be imprudent for Iran to unilaterally withdraw from the NPT, for the reasons they discuss.
But I also think, and have said before, that the NPT is in serious need of replacement. The basic facts are these: the NPT was never intended to be the final agreement on the subject of nuclear energy and nuclear weapons. It was understood at the time of its drafting to be a “halfway house” on the road to a treaty that would ban nuclear weapons outright. The concept of nuclear weapons haves and have nots as the legal status quo both was and still is understood not to be indefinitely sustainable. What utility there was in the NPT for decades has now been eclipsed by the problems the treaty causes as the cornerstone treaty governing nuclear energy in all of its applications. First, the NPT is woefully out of date and has become problematically anachronistic. The landscape of states that have nuclear weapons has changed drastically since 1968, and the treaty is incredible in not including these countries in some manner within its scope. This causes all sorts of problems – from civilian nuclear tech sharing with India, to the thorny problem of Israel’s nuclear weapons stockpile in the Middle East. Second, the two primary obligations to which the nuclear weapon states committed themselves, in exchange for non-nuclear weapon states’ promises not to acquire nuclear weapons, have become so thoroughly undermined and marginalized as to now be almost farcical. I’m referring to Article IV and Article VI of the NPT. There is a strong, and well supported view, among the states of the NAM, that the NWS are in breach of their obligations pursuant to Article VI, and that the rights and obligations in Article IV have been so diluted and abused by supplier states through the NSG, that there really is very little left that the NPT accomplishes in this area. And this of course goes to the heart of the original grand bargain of the NPT.
Of course, NAM states still in general strongly support the nonproliferation aims of the NPT. For this reason, and for the cost reasons associated with unilateral withdrawal which the pieces noted above explain, no one NNWS (with the exception of NK) has so far been willing to go out on the limb of international opinion to unilaterally withdraw from the NPT on these principled grounds.
But what if the member states of the NAM, comprising about two-thirds of the NPT NNWS, collectively agreed that the NPT is no longer a viable paradigm for governing nuclear energy and nuclear nonproliferation, and decided to finally bring the issue to a head and withdraw from the treaty collectively, on a coordinated date? The benefits of such an approach would be several. First, no one state would bear the stigma of outlier in unilaterally withdrawing from the treaty, with the implication of “something shady” going on in their territory. This would be a collective action more persuasively based in mutually agreed principle. Second, it would in fact force the issue of producing a new treaty to take the place of the NPT. For all of the reasons mentioned above and more, the NPT has been perceived less and less credibly by NAM states for many years now. However, when you talk with officials about amending or replacing the NPT, they just roll their eyes at the enormity of the task, and the improbability of ever achieving consensus on a new treaty. The result has been that the NPT is simply left in place to limp along as it has for 45 years, becoming more and more problematic by the year. Surely this is not an acceptable long term approach to the issue. At some point the NPT will have to be replaced. If not, it will continue to slide into disdain and irrelevance among the states of the NAM, comprising by far the majority of states in the world, as it already has in large measure, because of the fundamental principled inequity of the treaty’s structure, along with the previously discussed failure of the NWS and supplier states collectively to maintain their obligations under it.
I have no delusion that this scenario is likely to be played out soon. But I think that it may be the only realistic way in which to bring the issue of the NPT’s essential unfitness for purpose to the fore, and to bring about the necessary conditions for serious work to be commenced on a replacement treaty.
CRS Report on Iran’s Compliance with its International Nuclear Obligations
Posted: July 22, 2013 Filed under: Nuclear 20 CommentsI just read over the new Congressional Research Service report on Iran’s compliance with its international obligations in the nuclear area. My memory is that the same CRS researcher – Paul Kerr – published a very similar report last year, and I seem to remember commenting on it somewhere as well, though I can’t now remember where. Anyway, I remember my thoughts then being pretty much what they are now about this version. It comes across to me as low quality analysis. And in particular, the material on whether Iran has violated the NPT, which begins on Pg. 10, is unfortunately quite erroneous. It really just relies on what the U.S. State Department thinks on the question, and their analysis is also low quality and erroneous.
I remember specifically sending an email to Paul Kerr after reading his last version of this report, and offering to advise him on future reports on the topic. He was apparently not interested in my advice – though I note in one of the footnotes to this version that he did consult Andreas Persbo, whose views are much closer aligned to those of the U.S. State Department than are mine. This is probably not a coincidence.
Oh well. What can you do? There’s alot of inertia to the erroneous views on nuclear law that have been perpetuated by the US nonproliferation epistemic community and their friends for a long time now. And they have a weirdly strong hold over opinion in DC that’s hard to break. Inside the bubble of DC, these views are just accepted, even though they are radically different from the views of most of the rest of the world on these issues. It’s frustrating, but all anyone can do is keep trying to fight back against the tide of BS through solidly grounded explanation, analysis and persuasion.
Zero-Sum Game: The Global Market for Software Exploits
Posted: July 18, 2013 Filed under: Cyber | Tags: Christopher Soghoian, confidence-building measures, cybersecurity, cyberspace, Paul Rosenzweig, zero day exploits 2 CommentsOn July 13, 2013, Nicole Perlroth and David Sanger published a story entitled “Nations Buying as Hackers Sell Flaws in Computer Code” in the New York Times. Perlroth and Sanger wrote:
All over the world, from South Africa to South Korea, business is booming in what hackers call “zero days,” the coding flaws in software like Microsoft Windows that can give a buyer unfettered access to a computer and any business, agency or individual dependent on one.
. . .
But increasingly the businesses are being outbid by countries with the goal of exploiting the flaws in pursuit of the kind of success, albeit temporary, that the United States and Israel achieved three summers ago when they attacked Iran’s nuclear enrichment program with a computer worm that became known as “Stuxnet.”
The flaws get their name from the fact that once discovered, “zero days” exist for the user of the computer system to fix them before hackers can take advantage of the vulnerability. A “zero-day exploit” occurs when hackers or governments strike by using the flaw before anyone else knows it exists, like a burglar who finds, after months of probing, that there is a previously undiscovered way to break into a house without sounding an alarm.
The cybersecurity challenge created by the emerging global market in “zero day” exploits has been recognized before by experts (see, e.g., efforts by Christopher Soghoian of the ACLU to highlight this issue) and journalists (see, e.g., this story entitled “The Digital Arms Trade” from The Economist on March 30, 2013). But the Times article gives this problem heightened exposure and will increase political attention on it. With companies–such as Microsoft, Google, and Facebook–and countries–such as Brazil, Britain, China, India, Iran, Israel, Malaysia, North Korea, Russia, Singapore, South Africa, South Korea, and the US–willing to buy “zero day” exploits, Perlroth and Sanger report that “the market for information about computer vulnerabilities has turned into a gold rush.”
Among the many cybersecurity issues the development of this market creates is the question of whether to regulate it, and, if regulation is thought prudent, how to regulate the problem effectively. In its article, The Economist noted that:
Laws to ban the trade in exploits are being mooted. Marietje Schaake, a Dutch member of the European Parliament, is spearheading an effort to pass export-control laws for exploits. It is gathering support, she says, because they can be used as “digital weapons” by despotic regimes. For example, they could be used to monitor traffic on a dissident’s smartphone. However, for a handful of reasons, new laws are unlikely to be effective.
The effort to turn to export-control laws as a way to regulate the sale of “zero day” exploits or, more broadly, the development and sale of purpose-built malware, suggests that strategies and “soft” or “hard” regimes used in non-proliferation and arms control might serve as a basis for thinking about what to do about the market for “digital weapons,” including:
- National export-control laws with multinational coordination of such regimes among countries (a cyber version of something like the Wassenar Arrangement);
- Bans or limitations on development, transfer, and use of certain weaponized code intended to have specific purposes or effects considered illegitimate (a cyber version of something like the Protocol Banning Blinding Laser Weapons); or
- Confidence-building measures, including declaratory policy strategies, aiming for heightened transparency and trust (cyber versions of the CBMs used in the BWC or of “no first use” declaratory statements).
The attractiveness of drawing on ideas from non-proliferation and arms control experience in the realm of cyber weapons exists, as made clear by, among other things, a provision in the proposed National Defense Authorization Act for Fiscal Year 2014 for the President to “establish an interagency process to provide for the establishment of an integrated policy to control the proliferation of cyber weapons through unilateral and cooperative export controls, law enforcement activities, financial means, and diplomatic engagement, and such other means as the President considers appropriate” (Sec. 946, Control of the Proliferation of Cyber Weapons).
Without question, reasons why cyber versions of these approaches would not work can multiply rapidly, including arguments related to the questionable effectiveness of these strategies in their traditional non-proliferation and arms control contexts. In addition, as in many areas of cybersecurity policy and law, reasoning by analogy to policies and regimes designed for other challenges breaks down rather quickly because cyber presents such a different kind of problem attached to technologies unlike what non-proliferation and arms control efforts have addressed in the past.
These various reasons are often why cybersecurity experts exhibit skepticism about “arms control” in the cyber context. Here are Paul Rosenzweig’s thoughts on this question in his blog post on the Perlroth and Sanger article on “zero day” exploits:
In the physical world, the production of weaponry is restricted by the need for an industrial base. In cyberspace, weapons are bits and bytes and produced as intellectual property. With such an ease of manufacture (comparatively) and a global market, there seems to be precious little prospect for an arms-control type approach to eliminating the trade. The market for zero-day exploits will, I think, grow exponentially in the years to come.
Rosenzweig’s prediction might well prove accurate, but policy concerns with this uncontrolled global market for “zero day” exploits and other purpose-built malware are mounting, as illustrated by the ideas being floated in the European Parliament and (perhaps ironically given significant US government participation in this market) by proposed Section 946 of the National Defense Authorization Act for Fiscal Year 2014. As the market charges on, policy anxieties and demands for action will also increase, which will make efforts to control behavior amounting to “beggar thy neighbor’s software” one of the most interesting and difficult cybersecurity challenges governments and companies face.
Surveillance Like a Cancer Grows? The Implications of NSA Intelligence Activities on the Non-Proliferation & Arms Control Communities
Posted: July 17, 2013 Filed under: Biological, Chemical, Cyber, Nuclear, Terrorism | Tags: cyberspace, Edward Snowden, NSA, Surveillance, WMD 10 CommentsELECTRONIC SURVEILLANCE AND THE COMMUNITIES INVOLVED IN NON-PROLIFERATION AND ARMS CONTROL
In a comment to Dan Joyner’s post on Lawyers, Guns, and Money, Yousaf Butt raised the need to link the disclosures being made about NSA surveillance to the work of people engaged on non-proliferation and arms control issues. In particular, he cited a July 6, 2013, New York Times article by Eric Lichtblau entitled “In Secret, Court Vastly Broadens Powers of N.S.A.” This article was widely read, as evidenced by The Economist basing a story on it. In the Times article, Lichtblau reported US intelligence officials obtaining “access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.” Yousaf asked whether this example means anyone discussing nuclear proliferation could be subject to NSA surveillance. Or, more broadly, could electronic communications about WMD proliferation challenges to US national security be subject to NSA collection activities? Yousaf thought such surveillance could create a “chilling effect” that might adversely affect “free discourse” in the non-proliferation area. Dan asked me to share my thoughts on this issue, so here goes . . .
THE NUCLEAR PROLIFERATION CASE CITED IN THE TIMES ARTICLE
Section 702 of FISA
Let me start with the case reported in the Times and cited by Yousaf. Apparently, the e-mail communication that contained the attachment accessed by US intelligence officials was sent and received in the US, so, if accurately reported by the Times, this case does not involve the authority created in the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 that permits the FISA Court to authorize “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information,” including communications involving US persons (Section 702, Foreign Intelligence Surveillance Act, 50 USC sec. 1881a(a)). Even though this case does not involve this authority, the free speech concerns raised by lawyers, journalists, and human rights activists in Clapper v. Amnesty International (decided on standing grounds, 133 S.Ct. 1138 (2013)) apply to persons engaged in electronic communications with foreign nationals located overseas on issues relating to US national security.
FISA defines “foreign intelligence” to include “information that relates to . . . the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power” (50 USC sec. 1801(e)(1)). As the challenge mounted in Clapper indicates, many communities of interest are concerned about the “chilling effect” of the surveillance authority created by the FISA Amendments Act. The inclusion of WMD proliferation in the definition of foreign intelligence means the non-proliferation and arms control communities have been on notice about this US government power since 2008.
However, Snowden’s disclosures of PRISM (the NSA program operated under Section 702 of FISA) revealed how the US government uses this power. People in communities of interest not previously nervous about Section 702 of FISA might now be concerned about their communications with foreign nationals, and perhaps, as Yousaf’s comment suggests, this includes persons working on non-proliferation and arms control questions. So, as with other interested persons and organizations, the non-proliferation and arms control communities should monitor what happens next with this controversy, including law suits already filed in federal court challenging PRISM.
US Communications, Metadata, and Access to the Content of Communications
However, the case reported in the Times involved an e-mail and its attachment sent and received in the US, meaning that different aspects of FISA applied to this surveillance activity. The Times article is not exactly clear what happened, when it happened, what the FISA court did, and why it did what it did (at least these things are not clear to me from the article). My point is not that the Times article is wrong; my point is that it raises more questions than it answers, and trying to answer some questions proves difficult because of a lack of information. As explained below, these questions require more scrutiny of the Times article’s claim that the FISA court “vastly broadens powers of the N.S.A.” In short, we should not jump to conclusions about the Times article and its implications. In what follows, I try to sort through what the article does contain.
Collecting Internet and E-Mail Metadata
US intelligence officials probably picked up information from collecting and analyzing “metadata” on e-mail traffic that triggered a desire to see the e-mail attachment in question. Part of Snowden’s disclosures included information about the US government’s collection of e-mail and other Internet metadata within the US after 9/11 through 2011, when this aspect of NSA surveillance was apparently terminated. Initially undertaken by the Bush administration outside FISA, the collection and analysis of e-mail and other Internet metadata came within FISA court review and approval in 2004, after which the FISA court reviewed and approved orders for such surveillance periodically until 2011, when the Obama administration stopped this particular metadata surveillance effort.
Application of the “Special Needs” Exception to Collection of Internet and E-Mail Metadata under FISA
According to the Times article, the FISA court determined that such metadata surveillance did not violate the Fourth Amendment and relied, apparently, on the “special needs” exception to the Fourth Amendment’s warrant requirement. Generally, the “special needs” exception allows the government to undertake a search without a Fourth Amendment warrant to gather information unrelated to law enforcement purposes (e.g., drug tests of railway workers; passenger screening at airports). Referring to outside legal experts, the Times article commented that this application of this exception “is significant . . . because it uses a relatively narrow area of the law . . . and applies it much more broadly, in secret, to the wholesale collection of communications” for foreign intelligence purposes, including countering terrorism, WMD proliferation, espionage, and cyber attacks. This alleged expansive use of the “special needs” doctrine by the FISA court forms part of the Times article’s observation that this court is perhaps becoming “almost a parallel Supreme Court” because it regularly assesses “broad constitutional questions” and establishes judicial precedents for foreign intelligence surveillance.
Here is where the questions about the article begin to multiply. For starters, telephony and Internet metadata is not protected by the Fourth Amendment under existing jurisprudence, so, presumably, the FISA court does not need the “special needs” exception to the Fourth Amendment to review and approve collection of metadata. As Orin Kerr commented, if the FISA court “has ruled that all metadata is outside the Fourth Amendment, that’s not a surprise.”
Next, the “special needs” exception has long been associated with the gathering of foreign intelligence by the US government and with FISA itself. As Kris and Wilson put it, “Congress enacted FISA explicitly to serve as a special need not related to ordinary law enforcement: foreign intelligence and counter-intelligence. The courts have upheld FISA under a special-needs theory against multiple constitutional challenges” (David S. Kris and J. Douglas Wilson, National Security Investigations & Prosecutions (2007), sec. 11:12, p. 11-30). So, foreign intelligence activities subject to FISA fall under the “special need” exception for foreign intelligence gathering under existing law and jurisprudence. Again, Kerr commented that, if the FISA court has held that foreign intelligence efforts to locate terrorists fall under the “special needs” exception, then “that’s not noteworthy.” The same applies to foreign intelligence gathering for other serious national security threats, such as WMD proliferation.
These observations suggest that the FISA court is not vastly increasing the powers of the NSA or acting as a “parallel Supreme Court” but is operating within existing jurisprudence and statutory law. So, what’s going on here? I’m not sure based on what the Times article contains. Now, people might be worried about the powers existing jurisprudence and statutory law give the NSA and the FISA court–but the Times article claims something new, different, and secret is happening that does not track case precedents and legislation.
Accessing the E-Mail Attachment Related to Nuclear Proliferation
As noted above, the Times article reported that US intelligence officials went beyond metadata collection and accessed the content of an e-mail communication in the form of an attachment the officials feared “contained a schematic drawing or diagram possibly connected to Iran’s nuclear program.” The Times article is not clear how, and under what authority, the US intelligence officials accessed the content of this e-mail communication. The article states that gaining such access “[i]n the past . . . probably would have required a court warrant because the suspicious e-mail involved American communications.”
Well, if the US government wanted access to the e-mail attachment for foreign intelligence purposes, then FISA requirements for obtaining a FISA court order to undertake such content-based surveillance within the US apply. However, the Times article is not clear whether US intelligence officials obtained a FISA court order to access the content of the e-mail communication in question. Confusingly, the article follows up its statement about the probable need for a “court warrant” with a description of the broadening of the FISA definition of “foreign intelligence” in 2008 to include information related to WMD proliferation–information that is not helpful to understanding whether the US government obtained FISA court approval to access the e-mail attachment in question.
If the government obtained the FISA court’s specific approval for its access to the e-mail attachment, then the government complied with the relevant law–nothing new, then, legally speaking. However, if the FISA court has constructed some “special needs” exception to the FISA requirement to obtain a specific order for electronic surveillance in the US for foreign intelligence purposes, then we might have something new to ponder. But the Times article does not provide enough information to pursue this inquiry in any productive manner. We would have to be able to examine the FISA court decisions mentioned in the article, but those remain secret.
CONCLUSION
OK, so what does all of this mean for communities interested in non-proliferation and arms control that communicate through e-mail and other electronic means with people inside and outside the US? Based on what’s in the Times article, here’s my answer:
- Since the FISA Amendments Act of 2008 added Section 702 to FISA, it has been clear that electronic communications by US persons with foreign nationals could be subject to broad, FISA court-approved surveillance to acquire foreign intelligence through targeting persons reasonably believed to be located outside the US. The Times article does not change what we have known for quite some time on this aspect of FISA.
- The Times article’s reference to the “special needs” exception creates more questions than answers, meaning that, in such a state of affairs, it is best not to rage first and ask legal questions later. We know enough to wonder whether the article is accurately describing what’s actually happened in the FISA court. But, given recent disclosures, we also know enough to worry that we don’t know everything we need to know to assess what’s going on.
- What exactly the FISA court has done in the rulings mentioned in the Times article remains unclear, and the rulings remain secret. For the time being, we don’t know what we don’t know concerning the legal reasoning used by the FISA court.
My intent is not to promote a “don’t worry, be happy” attitude about the implications of NSA surveillance programs disclosed in recent weeks either generally or specifically to work that you might do. Like many people, I worry about the scale of the surveillance the disclosures have revealed and about some legal justifications given for these secret programs. But I am also concerned that the incomplete information we are getting through leaks in dribs and drabs is creating and agitating fears that, like a toxic miasma, government surveillance is permeating everything, everywhere and affecting everybody without meaningful limits or oversight. To prevent actual and imagined surveillance from doing more damage to the body politic, more transparency is required politically and legally.
Einhorn on Getting to Yes with Iran
Posted: July 13, 2013 Filed under: Nuclear 22 CommentsI’ll try to stay calm as I write this. I’ll try.
I just read Robert Einhorn’s new article over at Foreign Policy entitled “Getting to ‘Yes’ with Iran.” Most of you will know that for the past four years, until May, Einhorn was a key member of the Obama administration’s diplomatic team working on the Iran nuclear issue, and was involved in the P5+1 negotiations with Iran. Because of this, I think its fair to take his opinions as fairly representative of the US perspective on the ongoing diplomatic process with Iran.
It’s honestly hard to know where to begin to criticize this piece. There’s so very much to criticize. I think the most maddening aspect to it is simply the tone throughout – the paternalistic, arrogant tone that drives most of the world crazy about US “diplomacy,” and makes them want to collectively scream at us “who the f#&*! do you think you are!?!” Here are a few jewels:
The two sides could try to work out a road map containing the general elements or principles of a phased, comprehensive deal, including an outline of the key elements of an Iranian civil nuclear program that would be permitted in an end-state. . .
More specifically, any acceptable approach to permitting enrichment would have to provide confidence that Iran could not quickly or secretly “break out” of agreed arrangements and use its enrichment capabilities to produce highly-enriched uranium for nuclear weapons. This would require limits on Iran’s enrichment capacity (both in terms of numbers and types of centrifuges), restrictions on its stocks of enriched uranium (in terms of quantities and locations), and special monitoring measures capable of detecting a breakout at the earliest possible moment. . .
The question of whether the negotiations’ end-state should include a domestic enrichment program cannot be answered until we have explored such practical arrangements with the Iranians. Such engagement will not be easy for either side. It will require the United States and its partners to do what they have so far avoided: talk about what would make an Iranian enrichment program acceptable. And it will require the Iranians to recognize that the United States and the international community will not accept an unrestricted enrichment program, but only a regulated capability that denies them the opportunity to convert their program rapidly or clandestinely to the production of nuclear weapons.
Do you hear it? How many times he uses words like “permit,” “accept,” and “acceptable”? This drives the rest of the world crazy – how the U.S. and the West generally put themselves in the position of parents telling other states – as if they were little children and not fully equal sovereigns – what they will accept and not accept, permit and not permit those states to do in their own countries! And if you don’t go along with these parental orders, the U.S. and E.U. will slap sanctions on you, like a parent punishing a child. Nevermind if there is no international legal basis either for the substantive “non-acceptance” of the activity, or for applying punitive sanctions, as is the case with Iran’s nuclear program. Dad’s going to do it anyway, because he knows what’s best, and because he can.
Do you not see how this drives other states crazy, and makes them want to defy these edicts from the West, just on principle? It’s basic schoolyard psychology. And we would feel and respond the same way, if the tables were turned.
But wait, there’s more. He also tries his hand at legally justifying the U.S. refusal to recognize Iran’s right to peaceful uranium enrichment:
The United States has been justified in rejecting an unfettered “right to enrich.” The Nonproliferation Treaty protects the right of compliant parties to pursue nuclear energy for peaceful purposes, but it is silent on whether that right includes enrichment, which is a dual-use technology that can also produce fissile material for nuclear weapons. Lawyers can debate whether a right to enrich is included in the treaty, but what is not debatable is that Iran has forfeited — at least temporarily — any right to enrichment (and reprocessing) until it can demonstrate convincingly that it is in compliance with its NPT obligations. For the time being, whatever rights it has to these technologies have been suspended by a series of U.N. Security Council resolutions, which are legally binding on all U.N. members, including Iran.
Well, I wrote a whole book on why he is wrong in his assessment of the NPT and Article IV. I’d be happy to explain it to him sometime, or he can just buy the book and read it (it’s out in paperback!), now that he’s out of office and has time to actually think about policies, instead of running around implementing them based on erroneous understandings. And as far as the Security Council resolutions are concerned, I’ve written about them as well, including in an article in the George Washington International Law Review. And I’m currently writing another piece in which I will discuss more thoroughly the issue of states’ rights in international law. In that piece I plan to demonstrate that the rights of states, including the one codified in NPT Article IV, have jurisprudential meaning and implications, and impose obligations on other actors to respect them – including the Security Council. And when the Council acts to prejudice these rights, its decisions are null and void.
But coming back to a macro view of this piece by Einhorn, it really makes for a depressing read. It convinces me that there really is no hope for a practical, negotiated solution, as long as the U.S. approaches the negotiating table with this attitude and with these erroneous ideas about both the principle and practicality of what they’re hoping to accomplish through them.
Hibbs on Closing the Iran File
Posted: July 11, 2013 Filed under: Nuclear 10 CommentsA couple of days ago I wrote a post in which I said this about Mark Hibbs’ most recent post over at Arms Control Wonk:
While I’m writing, I might as well also quickly address Mark’s other recent piece over at Arms Control Wonk. This one is entitled Closing the Iran File, and contains Mark’s prescription for how Iran can normalize its relationship with the IAEA. I honestly don’t see much that is novel in this piece. It seems to just be saying that Iran should do everything the IAEA and UNSC says it should do, and that if they do, in time the IAEA may back off on its scrutiny of Iran’s nuclear program and normalize its safeguards relationship with Iran. The piece doesn’t seriously engage with any of Iran’s objections to the substance or process of IAEA/UNSC actions regarding it, or with Iran’s proposals for normalizing relations with the IAEA. It appears to offer no new insights into how the dispute between Iran and the West can practically be resolved.
It is of course all wrong in its fundamental assumption, upon which the entire piece is based, that the IAEA should be investigating ”potential military dimensions” in Iran, or anywhere else for that matter. But I’ve made this point so many times before that I didn’t really see it as worth the time or effort to do so again in comments to this new piece.
After writing this, I decided to make a short comment to his post, agreeing with Yousaf and Johnboy and some of the others that had commented. Mark didn’t allow my comment to be posted. So I suppose I’m now officially persona non grata with both Mark Hibbs and Jeffrey Lewis, the latter of which has made his disdain for me very clear for a long time. Lewis is of course a poster child for the US nonproliferation epistemic community, which I critiqued here.
But I have actually respected Mark Hibbs for years, and continue to think that his work is extremely valuable overall – in particular his more journalistic and explanatory pieces. And if you were to look at his pieces over the past several years on ACW, you’ll see that I’ve been very openly complimentary of him in the comments to many of them. Its really only on the issue of Iran that I have taken issue with his analysis. Its a bit strange to me – on other issues Mark seems to be quite open minded and willing to challenge the US and the IAEA on things. But on the Iran issue, somehow it seems that Mark has drunk the Kool Aid flowing from the DC echo chamber which, along with its unfortunate implications, was recently insightfully discussed by Robert E. Hunter in a post over at LobeLog.
Oh well. I guess its a good thing that I have my own blog now where I can say anything I want and neither Lewis nor HIbbs can stop me.
With regard to Hibbs’ most recent post, I stand by what I said previously. PMD issues are not within the IAEA’s mandate to investigate and assess. Period. Nothing has changed, or can change that. At one point in the comments, Mark says:
There can be no question that the IAEA has that authority to pursue these issues in the case–as I outline in the blog post–should Iran volunteer to ratify, bring into force, and implement its Additional Protocol.
And then he cites to the hatchet job report that Albright and friends did on my work a while back. Fortunately, Yousaf was allowed by Hibbs to reply to that comment and to site to my responses to that report, and to my earlier Jurist piece on the PMD issue specifically. Mark’s allusion to the AP here is confusing and inapposite. The AP gives the IAEA no additional remit of authority to investigate PMD issues than it has under the CSA, which is zero. The AP is about increasing the IAEA’s authority to verify both the correctness and completeness of a safeguarded state’s declaration about the location and amounts of fissile material within its territory. Its not about giving the IAEA the authority to investigate or assess nuclear warhead development related research within the state, which is what the PMD issue is all about. As I’ve explained before, the entire PMD issue is a red herring that should be completely and immediately dropped by the IAEA.
Many of the regular commenters here at ACL have, however, been allowed to comment on HIbbs’ post, and I’ve been very glad to see the excellent legal points that you’ve been making there. In a comment to one of my earlier posts, Johnboy asked me a question about something Hibbs wrote over there:
Dan, I’m reading the comments in Mark’s post at armscontrolwonk, and one of his statements left me puzzled.
This comment in reply to Cyrus:
“The Board of Governors made a big mistake in not responding to the IAEA’s 2003 findings of 18 years of systematic deception by Iran, by passing a resolution stating clearly and without further ado, in 2003, that Iran was in non-compliance with its safeguards obligations and then ordering Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding”That the Board can pass a resolution declaring that based on the “IAEA’s 2003 findings” that Iran is guilty of non-compliance with its safeguards is not something that I dispute.
It’s the “and then ordering Iran” bit that leaves me puzzled, because I can’t see where the Board of Governors has the authority to order anyone to pull the pin on their uranium enrichment plant.
It does rather suggest that Mark thinks that the Board has the authority to be judge, jury and executioner which – to say the least – is a level of unaccountable power that is Somewhat Open To Abuse.
Maybe I’ve missed something.
Maybe the Board of Governors does have the power to “order” a country to “suspend sensitive nuclear activities pending clarification of outstanding issues”.
What’s your take?
My take is that you’re not the one who is puzzled, Johnboy. You are right on the law, as have the other ACL commenters been, and Hibbs is wrong. Of course the IAEA BOG has no authority to “order[] Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding.” All the BOG can do is determine that a safeguarded state is in noncompliance with its safeguards agreement, and, if it chooses, refer the matter to the Security Council. Its this kind of comment, from someone as knowledgeable about the IAEA as Hibbs, that shows me how much misunderstanding there is in the nonproliferation community about what the actual legal authority of the IAEA is, and how limited it is.
At another point, George William Herbert makes this statement: “. . . I believe that the AP has caused the international standard / legal expectation to be that the IAEA becomes the NPT enforcer.” Again, this isn’t even in the ballpark of a correct understanding of the IAEA’s legal authority.
I know that all of these guys – Lewis, Albright, Hibbs, Herbert, Fitzpatrick, Pollack, Ford, Wulf, Kittrie, and the rest of the US nonproliferation crowd, along with their few foreign friends like Persbo and Heinonen, think I’m just a pain in the butt, and an Iran apologist. They’ve made that very clear. And I’m sure I am a pain in their collective butts in bringing up these legal issues that they would rather not have brought up. But I am right, and people who really understand international law agree that I’m right. And the rest of the world, that actually cares about international law and the lawfulness of acts of international organizations, thinks these things are important and shouldn’t be marginalized.
Mousavian: Iran’s Options Include Building a Nuclear Weapon, or Withdrawing from the NPT
Posted: July 10, 2013 Filed under: Nuclear 11 CommentsThis is a powerful new piece by Seyed Hossein Mousavian, Iran’s former chief nuclear negotiator, that’s getting a lot of attention in nonproliferation circles. In it, he goes through five options that Iran has for dealing with the dispute with the West over its nuclear program. Two of these options are building a nuclear weapon, and withdrawing from the NPT, respectively. You really need to read the whole thing to see why the piece is so powerful and is being so widely talked about. It makes for a disturbing read.
I think the underlying message to the West is that Iran, quite reasonably, cannot be expected to abide by the current status quo forever. Like any sovereign state with a strong sense of national identity and pride, and significant resources, it will be highly resistant to coercion by outside forces into taking actions it doesn’t perceive to be in its national interest. And like any similarly situated state, it does have other options – some of which would be extremely unwelcome to the West and to Israel. Again, I think the underlying message here to the West is that the West needs to get serious about achieving a negotiated solution, before Iran decides it must take one of these other steps.
Just to note, I did recently publish a two-part treatment of the question of whether Iran can legally withdraw from the NPT, and what the legal implications of such a withdrawal would be. See the papers here and here.
Kicking the Hornet’s Nest
Posted: July 8, 2013 Filed under: Nuclear 2 CommentsA colleague sent me a link to this piece today. It’s entitled “Kicking the Hornet’s Nest: Iran’s Nuclear Ambivalence and the West’s Counterproductive Nonproliferation Policies,” and was written by Patrick Disney and published in the Nonproliferation Review last July. I found myself very impressed with the persuasiveness of the author’s explication and application of the “concept of nuclear ambivalence” to the case of Iran’s nuclear program. I think that the way this concept is explained and applied to the Iran case is parsimonious, valid and highly explanatory. And I agree with the author’s prescriptions for how the issue should be dealt with going forward. I recommend the piece highly.
Lawyers, Guns and Money
Posted: July 8, 2013 Filed under: Nuclear 5 CommentsWe should make this the unofficial theme song of this blog.
Warren Zevon’s “Lawyers, Guns and Money”
Perfect, right? Great song.
Actually, if you listen to the lyrics, it could also be the theme song for Edward Snowden.
Arms Control Law 