Can US withdraw from JCPOA if it endangers American interests?

Eric R. Mandel JERUSELEM POST 9-23-17 

"The Iran deal is not a fair deal to this country” – US President Donald Trump, September 14, 2017 What if the Trump administration comes to the conclusion that the Iran agreement (JCPOA ) authored by the previous administration has destabilized the Middle East and undermined American interests? Since it was signed, Iran has actively supported the ethnic cleansing of hundreds of thousands of Sunnis, while being complicit in Syrian President Bashar Assad’s genocide of his own people.

Can the US wash its hands of the agreement, or are we stuck with it? Prime Minister Benjamin Netanyahu has reportedly asked President Trump to either amend or withdraw from the 2015 agreement. There is no doubt that president Barack Obama believed that he knew better than the Israelis what was in their best interest, but now there is a new sheriff in town, who for years has made it clear that he believes the Iran agreement is a danger to America.

There are no American inspectors anywhere in Iran, or anyone else inspecting military sites, where agreement-breaking nuclear weapons development may be taking place. Can America withdraw or amend the agreement if Iran technically adheres to its commitment according to the IAEA (International Atomic Energy Agency), which refuses to confront Iranian intransigence on military inspections? Can Trump say sayonara, even if the other members of the P5+1 think it is not in their interest to leave the agreement? The answer is yes, but with a few caveats.

First, the Iran deal is not what it was presented by its authors to be. President Obama signed an agreement that betrayed his own words, promising to “end their nuclear program.” The agreement in fact guarantees an internationally accepted nuclear program in eight more years.

However, critics of withdrawal point out that despite the agreement having never having been signed, it is a commitment that was witnessed by five other major powers, and the consequences of America withdrawing would cast doubt on Western assurances in the future, undermining future negotiations.

The JCPOA is the most important American treaty of the 21st century, except that it was never submitted to the Senate for approval as a treaty.

According to Bruce Fein in The Washington Times, the JCPOA was “intended to constrain Iran’s nuclear ambitions in exchange for a relaxation of sanctions, and must be construed as a “treaty” under Article II, section 2, clause 2 of the U.S. Constitution.”

As National Review’s Andrew McCarthy explained, the Constitution “does not empower the president to make binding agreements with foreign countries all on his own.”

Even the Yale Journal of International Law, a strong supporter of the JCPOA which believes withdrawal is unwise, opines that “nothing in the JCPOA ...formally binds the United States to the Agreement.”

There is even a precedent for walking away from the agreement, set by Rahm Emanuel and the Obama administration itself.

Let us recall that president Obama disavowed the Bush-Sharon letters of 2004, which said that the “existing major Israeli population centers” were “realities on the ground” and it is unrealistic to expect Israel to return them in any final agreement, with the quid pro quo of Israeli withdrawal from Gaza in the disengagement plan.

According to Ben Caspit’s book The Netanyahu Years, an illuminating exchange occurred between Israeli ambassador Michael Oren and Obama’s chief of staff, Rahm Emanuel.

Ambassador Oren called Emanuel for a clarification and said, “You can’t repudiate former understandings... it will cause long-term damage.”

Emanuel responded emphatically, “If we think they are not effective it is our right to say so isn’t it? We can’t be committed to everything the previous administration thought.”

So the Obama administration itself created a framework for walking away from the JCPOA , a set of unsigned understandings according to the State Department. If the JCPOA is not effective in moderating Iranian ambitions, and is a glide path to a nuclear weapons program, isn’t it then the right of the new administration to cancel that agreement? Of course it is.

Non-binding agreements that are not treaties can be withdrawn from. If president Obama wanted a binding agreement for perpetuity, all he had to do was present it as a treaty to the Senate.

So what should the US do now? Work with Congress to write legislation to annul the JCPOA if Iran cooperates in any way with North Korea on nuclear or missile related technology, while imposing new sanctions. Better yet, submit the JCPOA for Senate ratification.

As for the Europeans, their latest rationale for maintaining the Iran deal is that it is the model for a resolution of the North Korean nuclear conflict. They say the Iran deal mustn’t be touched, in order to reassure the North Koreans that if they strike a diplomatic deal the West will not renege on it.

So then we should show the North Koreans that they, like Iran, can have an internationally recognized nuclear program in 10 years, free of military site inspections in the meanwhile, and free to build nuclear-armed ICBMs, with billions of dollars as a reward for signing a piece of paper it has no intent of honoring.

The Iranian-sponsored ethnic cleansing of the Sunni population in Syria and Iraq is a war crime, and has caused a catastrophic refugee exodus with profound demographic national security threats to Western European nations.

So why is Western Europe so blind to the fact that the JCPOA is a major source of resources for Iranian belligerency, a primary cause of the refugee epidemic? It seems today’s Western European leaders are so lost in political correctness that they are content to author their own suicide.

As US UN Ambassador Nikki Haley said, “It is this unwillingness to challenge Iranian behavior for fear of damaging the nuclear agreement that gets to the heart of the threat the deal poses to our national security.”

US Secretary of State Rex Tillerson said Iran is “clearly in default” of the nuclear deal, and “the Trump administration is fully committed to addressing the totality of malign activities attributable to the Iran regime and its proxies.”

But is it willing to see the JCPOA as the primary driver of those malign activates? 

The author is director of MEPIN™, the Middle East Political and Information Network ™. Dr. Mandel regularly briefs members of Congress and think tanks on the Middle East. He is a regular contributor to The Jerusalem Post.