Trump May Already Be Violating the Iran Deal

The deal’s opponents keep saying Tehran has failed to live up to its commitments to the U.S. But what if it’s the other way around?

Kevin Lamarque / Reuters

As anyone who reads the news knows, Donald Trump will decide by May 12 whether to “withdraw from” or “pull out of” or “abandon” or “scrap” or “jettison” (the synonyms keep coming) the nuclear deal with Iran. Why May 12? Because last October, Trump declared that Iran isn’t complying with the agreement. Under a law passed by Congress, that “decertification” means Trump can reimpose the sanctions related to Iran’s nuclear activities that were waived as part of the deal. Trump hasn’t reimposed those sanctions yet. But he’s demanded that Iran make vast new concessions. And he’s threatened that if Iran does not do so by May 12, “American nuclear sanctions would automatically resume.”

There’s an irony here. For all of the drama surrounding Trump’s decision to decertify Iranian compliance with the deal, there’s little doubt that Iran is complying. The International Atomic Energy Agency has said so nine times. America’s European allies have said so. So has Trump’s own defense secretary, James Mattis. This very month, Trump’s State Department issued a report declaring that “Iran continued to fulfill its nuclear-related commitments under the Joint Comprehensive Plan of Action (JCPOA),” the technical name for the nuclear deal. (The deal’s opponents often cite the two times Iran narrowly exceeded the agreement’s 130-metric-ton cap on heavy water, which is used in nuclear reactors: In both cases Iran shipped the excess out of the country, and it remains in compliance with the deal.)

The more interesting question isn’t whether Iran has been complying with the nuclear deal. It’s whether America has. American journalists often describe the agreement as a trade. In the words of one CNN report, it “obliges Iran to limit its nuclear program in exchange for the suspension of economic sanctions.” But there’s more to it than that. The deal doesn’t only require the United States to lift nuclear sanctions. It requires the United States not to inhibit Iran’s reintegration into the global economy. Section 26 commits the U.S. (and its allies) “to prevent interference with the realisation of the full benefit by Iran of the sanctions lifting specified” in the deal. Section 29 commits the U.S. and Europe to “refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran.” Section 33 commits them to “agree on steps to ensure Iran’s access in areas of trade, technology, finance and energy.”

The Trump administration has likely been violating these clauses. The Washington Post reported that at a NATO summit last May, “Trump tried to persuade European partners to stop making trade and business deals with Iran.” Then, in July, Trump’s director of legislative affairs boasted that at a G20 summit in Germany, Trump had “underscored the need for nations … to stop doing business with nations that sponsor terrorism, especially Iran.” Both of these lobbying efforts appear to violate America’s pledge to “refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran.”

The Trump administration may have committed other violations as well. Section 22 of the deal specifically obliges the United States, subject to some restrictions, to “allow for the sale of commercial passenger aircraft and related parts and services to Iran.” To do business with Iran, any U.S. company—or even any foreign company that gets more than 10 percent of its components from U.S. companies—must get a permit from the Treasury Department’s Office of Foreign Assets Control (OFAC). OFAC must certify, for instance, that the transaction isn’t with an Iranian company designated under other U.S. sanctions programs such as those targeting terrorism. And under the Obama administration, OFAC began issuing these permits, albeit slowly. In November 2016, for instance, OFAC allowed the sale of 106 planes by Airbus to Iran Air.

But since Trump took over, notes Al-Monitor, “requests concerning permits to export planes to Iran have been piling up … OFAC has not responded to aircraft sales licensing requests since the first of such licenses were issued during the Barack Obama administration.” Erich Ferrari, a lawyer in Washington who works on sanctions issues, told me there’s “definitely been a shift. Certain transactions that we’ve seen licensed in the past under the Obama administration are now being denied.”

The Trump administration still issues licenses for routine personal divestment transactions: for instance, people who want to sell off their property or close their bank accounts in Iran. But as far as Ferrari can tell, the Trump administration has issued few, if any, licenses for commercial transactions. That’s hard to verify: There is no public database of OFAC licenses, and the Treasury Department didn’t respond to my request for comment. But in recent months, two close observers of the Iran deal have echoed Ferrari’s observation. As the pro–nuclear deal National Iranian American Council’s Reza Marashi reported earlier this year, “To hear senior Western diplomats tell it, the Trump administration has not approved a single Iran-related OFAC (Office of Foreign Assets Control) license since taking office.” If true, this too likely violates the Iran deal.

We’ve seen a version of this movie before. In 1994, the Clinton administration signed a nuclear deal with North Korea. Pyongyang promised to freeze its nuclear program. In return, the U.S. promised to provide “heavy fuel oil” to compensate for the electricity North Korea would lose by shutting down its plutonium reactor; to help build an entirely new, “light water” reactor; and to move toward normalizing relations. But that November, Republicans—many of whom were skeptical of the deal—took control of the House and Senate. And in the following years Congress hindered both America’s promised delivery of fuel oil and its promised help in building a light-water reactor. The North Koreans warned that if the U.S. didn’t abide by the deal, they wouldn’t either.

And they didn’t. While North Korea mostly met its promises not to build a bomb using plutonium, it secretly operated an alternative nuclear program based on enriched uranium.

Whether North Korea cheated in response to U.S. cheating, or intended to cheat all along, is a subject of debate. Either way, the Bush administration in 2002 confronted Pyongyang about its uranium-enrichment program. North Korean officials conceded its existence, while falsely claiming the deal covered only the plutonium route to a bomb. And they proposed a new, more comprehensive agreement, which would also cover uranium enrichment and require the U.S. to recognize North Korea, stop threatening it militarily, and lift sanctions. But the hawks in the Bush administration, who had opposed the 1994 deal from the beginning, refused to negotiate seriously. As John Bolton explained, the uranium-enrichment program “was the hammer I had been looking for to shatter the Agreed Framework.”

Now Bolton is back, and looking for another hammer. If Trump stops him from wielding it, and the U.S. doesn’t reimpose nuclear sanctions on Iran, many in the media will celebrate America’s decision to continue complying with the nuclear deal. But that will be wrong. The Trump administration has never fully complied with the nuclear deal, and likely never will. The real question isn’t whether Trump violates it, but how.

The truth is that, at least in the post–Cold War era, the United States hasn’t always been very good about keeping the promises it makes in nuclear deals. It’s important Americans know that. It might be nice to think that the U.S., as a democracy, is more trustworthy than its authoritarian adversaries. But America’s government won’t hold itself to a higher standard unless its people do.