New Paradigms Forum
August 23, 2010
by Christopher Ford
In my last essay, I discussed the treatment of nuclear test moratoria in the Obama Administration’s new report on Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments – otherwise known as the “Noncompliance Report” (NCR). In this essay, I address the new NCR again, this time with regard to its treatment of compliance assessment standards under Article II of the Nuclear Nonproliferation Treaty (NPT) and its application (or rather, non-application) of such standards to Iran.
As I recounted before, great efforts were made during the Bush Administration to add substantive detail and analytical clarity to the NCR, which helped delay the document’s notionally “annual” production (see the discussion of this in the blog “Comments” on my last essay) but was intended to make it a much more valuable and credible document. Not all of this additional value, unfortunately, has been retained in the Obama Administration’s new version. Worse, the significant deletions that have occurred seem to have been done in order to facilitate a retreat from finding Iran in violation of Article II. The NCR’s articulation of NPT compliance assessment standards, in other words, has been dumbed down in order to accommodate the Obama Administration’s decision to let Iran off the hook with respect to Article II.
I. Article II Analytical Standards
To its credit, the 2010 NCR retains much of the earlier focus upon providing factual and analytical detail in the NCR. Its general emphasis upon the history of compliance dialogue is somewhat diminished, with the deletion of explicit sections on this subject, but the current document retains much detail in its “Background” and “Compliance Discussions” sections. The Obama Administration, in other words, seems largely to have continued Bush-era innovations in the NCR, offering readers what is still a sort of “one stop shopping” document that combines factual information (based upon intelligence reporting and other sources) and a compliance assessment by the policy community in which facts are evaluated in light of legal analysis of a country’s obligations or commitments and conclusions are drawn about whether that state is in compliance. So far, so good.
In light of this enduring commitment to detail, however, it is disappointing to see the Obama Administration paring back the U.S. approach to NPT compliance assessment. It is doubly disappointing to see this occur just when the integrity of such judgments is perhaps more important than ever, as Iran continues is headlong rush toward a nuclear weapons capability in violation now not merely of its NPT and nuclear safeguards obligations but of multiple legally-binding U.N. Security Council resolutions.
To understand this point – which no one seems yet to have noticed, with what little media coverage as there has been so far having been focused upon the 2010 NCR’s somewhat embarrassing account of Russian violations of the 1991 Strategic Arms Reduction Treaty (START) just as the Obama Administration pitches a successor agreement to the U.S. Senate – it is necessary to compare the discussion of NPT compliance standards in the 2005 and 2010 NCRs.
The 2005 NCR offered a long discussion of Article II of the NPT, walking through the meaning of the text and, in particular, offering an exegesis of how to interpret it, based upon both its provisions and the explanation of its meaning offered to the Senate at the time of its U.S. ratification. The key point in this regard was the meaning of what it means to “manufacture” a nuclear weapon – something that is prohibited by Article II, and which lies at the epicenter of NPT compliance analysis. As the 2005 NCR recounts,
“the prohibition against the ‘manufacture’ of a nuclear weapon, as well as against seeking or receiving any assistance in this regard, reaches more than simply the final assembly of such a device. In addition, [ACDA] Director Foster advised the Senate that ‘facts indicating that the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show noncompliance.’ Thus, as with Article I, an important factor in Article II compliance analysis is the purpose of a particular activity.”
Analytically, this is critical to the compliance assessment undertaking, as it establishes the intellectual framework – program intent – necessary for understanding the legal import of the employment of dual-use technology. Providing a solid rooting for such an analysis of “purpose” is critical to the coherence and efficacy of the NPT’s core nonproliferation provisions. (To ignore it would be to pander to the incorrect and proliferation-facilitating interpretations of the Treaty offered by Iran and its apologists, pursuant to which dual-use technology is per se permitted, as long as it is safeguarded by the International Atomic Energy Agency [IAEA], and only work on actual weapons is barred.)
Unless a proliferator is stupid or unlucky enough to provide the world with direct evidence of bad intent, however – and here one imagines the fortuitous discovery by IAEA inspectors of some kind of “Let’s build The Bomb!” memorandum – assessing program intent is a judgment call. In the real world, compliance assessors rarely have the benefit, as it were, of direct testimony. One must often use reason and inference. This is one reason why the 2005 NCR made clear that Article II assessments are not susceptible to bright-line definitions or invariant formulae.
But one must also prevent compliance assessment from degenerating into a sort of postmodern relativism of axiomatically equivalent assertions. Instead of treating compliance assessments merely as bare exercises of will – against which, presumably, one may simply counterpoise opposing assertions without regard to anything like veracity – it is essential to be clear that some assessments clearly are better than others. Accordingly, readers deserve as much clarity as possible about how one approaches such a critical question; they need this so that they can judge the integrity of one’s conclusion.
For this reason, the 2005 NCR explained that there were certain “‘warning signs’ that may indicate a prohibited nuclear weapons purpose, and thus suggest that a country’s ostensibly ‘peaceful’ nuclear program might have violated Article II.” Choosing not to leave such things opaque or mysterious, or to leave U.S. compliance assessment on merely a “trust me” basis, the 2005 Report noted further that such indicia can include:
“(a) the presence of undeclared nuclear facilities; (b) procurement patterns inconsistent with a civil nuclear program (e.g., clandestine procurement networks, possibly including the use of front companies, false end-use information, and fraudulent documentation); (c) security measures beyond what would be appropriate for peaceful, civil nuclear installations; (d) a pattern of Article III safeguards violations suggestive not of mere mistake or incompetence, but of willful violation and/or systematic deception and denial efforts aimed at concealing nuclear activities from the International Atomic Energy Agency (IAEA); (e) a nuclear program with little (or no) coherence for peaceful purposes, but great coherence for weapons purposes (e.g., heavy water production in a country the civil nuclear facilities of which use only light water as a moderator, or pursuit of enrichment facilities when other, cheaper energy-producing resources or an outside source of enriched uranium are available, or the pursuit of a full fuel cycle for a civil reactor program too small to provide economic justification for such an effort).”
Not content to provide such analytical openness and rigor with regard only to Article II assessments, moreover, the 2005 NCR provided an extensive discussion of how U.S. officials approached understanding noncompliance with IAEA safeguards as well.
Laboriously cleared through the interagency process, including with all relevant legal offices, these U.S. articulations of compliance standards were unique: as far as I know, this is the only example of any government ever having actually subjected to public accountability and debate the legal and policy framework it applies to such work. Most governments seem afraid of making clear compliance assessments at all, in fact, regarding such pronouncements as awkward impediments to the ad hoc improvisations of day-to-day policy expediency, if such conclusions are even within the competence of national governments at all. (Some are afraid to take responsibility for such exercises of judgment, preferring to look to the safety in numbers that is to be found in awaiting the judgment of international bodies such as the IAEA Board of Governors or the United Nations. Other governments simply prefer not to be tied down by the undiplomatic inflexibility of showing fidelity to principle.) Of those governments that are willing to demonstrate independent judgment in making compliance assessments, most prefer not to talk too much about how precisely they reach their conclusions. Uniquely, however, the United States opted, in 2005, in favor of openness, consistency of principle, and intellectual accountability in making NPT Article II assessments.
II. The Obama NCR
But that was 2005. How does the Obama NCR handle these issues in 2010? Unfortunately, it handles them with a retreat into mystery. To be sure – and to the Administration’s credit – the most recent Report does retain an extensive discussion of safeguards compliance, opting not to leave its readers in the dark in this regard, at least. Assessing compliance with the NPT’s Article II, however, is another story.
With respect to the two short paragraphs it offers on Article II – a mere 162 words, down from 639 in 2005 – the Obama NCR simply paraphrases the Treaty text (in the first paragraph) and then notes blandly that in making compliance judgments one must “look at the totality of the facts, including information supporting judgments as to the NNWS [non-nuclear weapon state] Party’s purpose in undertaking the nuclear activities in question.” This, of course, is not wrong, and it remains a mark of at least some progress that the Obama Administration has not entirely abandoned the “purpose test” for assessing the legal impact of dual-use technology.
Beyond this nod to the general idea of “purpose,” however, the Obama explanation is quite empty, even evasive, for the Administration has now dropped all efforts to explain how U.S. officials expect to approach judgments of program intent – particularly where inferences must be drawn on the basis of that same “totality of the facts.” Clarity is now carefully avoided, and the deletions make the situation even more confusing. (What is the reader to conclude from the omission of so much of this material? Have the prior standards been repudiated? Deemphasized? Altered? Or are they simply felt now to be understood or obvious enough that repetition is unnecessary? What is their status today? One can only guess.) We are moving back in the direction, it would seem, of the shadowy world of “trust me” compliance politics – with all the scope for gamesmanship and contestation that this implies.
III. Last Time Around: The History of “Fudging”
This watering-down of compliance assessment standards is particularly worrying given the history of U.S. nonproliferation compliance politics in the post-Cold War era. Throughout much of the 1990s, the Clinton Administration engaged in various struggles over proliferation sanctions issues with the Republican-controlled Congress. Republican leaders (and some hawkish Democrats) were appalled by the proliferation-facilitating transfers undertaken during this period by foreign governments and entities – to some extent with regard to nuclear technology, but most dramatically with ballistic missiles – and sought to impose penalties on such behavior by enacting mandatory U.S. sanctions legislation. Under such laws, discovery of a certain type of transfer would trigger specified penalties unless the president waived their application.
This was resisted by the Clinton Administration, however, which resented what it viewed as Congressional infringement of the President’s prerogatives, and which had no desire to let U.S. reactions to proliferation transfers rock the boat in its efforts to maintain congenial ties with countries such as China. The White House hated the idea that if a transfer occurred, U.S. sanctions laws required the president to make a de facto choice between punishing and excusing it – options which, either way, required that the U.S. Government acknowledge malfeasance by the transferor. Such legal requirements were not conducive to the go-along-get-along “soft power” diplomacy of the Clinton era.
As a result, the Clinton Administration began fudging its proliferation transfer assessments, reasoning that the awkward choice imposed by U.S. sanctions laws could be avoided if a sanctions-triggering transfer could be declared not to have really occurred in the first place. I do not use the word “fudge” lightly here: it is no slur of mine, but actually President Bill Clinton’s own term. As he explained in 1998, with remarkable candor,
“What always happens if you have automatic sanctions legislation is it puts enormous pressure on whoever is in the executive branch to fudge an evaluation of the facts of what is going on.”
And with this bold admission, that is exactly what he did. Confronted with U.S. laws imposing sanctions on foreign entities or governments found to have been involved in proliferation transfers, the Clinton Administration adopted the course that the president himself described: it “fudged an evaluation of the facts,” repeatedly dispatching officials to Capitol Hill to explain how various sanctions-triggering transfers that were discovered weren’t really sanctions-triggering transfers after all.
The classic example involves M-11 ballistic missiles exported by China. The George H.W. Bush Administration had sanctioned China in June 1991 for M-11 technology transfers to Pakistan, but the Clinton Administration neither wished to do so nor even to admit that China was engaged in such activity at all– no matter what U.S. law said, and no matter what the facts were. Accordingly, after U.S. intelligence acquired information that M-11 containers had been delivered to Pakistan, the Clinton Administration apparently declared that this didn’t count because we couldn’t prove that these M-11 missile containers actually contained M-11 missiles. (I’m not making this up. Remember, after all, that Clinton’s was an Administration that debated “what the meaning of the word ‘is’ is.”) This fudge let the White House avoid the toughest form of mandatory missile proliferation sanctions under U.S. law, for transferring “Category I” items under the Missile Technology Control Regime (MTCR).
IV. A Non-Finding on Iran
This compliance assessment gamesmanship under the previous Democratic administration did not involve the Noncompliance Report, because – perhaps for this very reason – the Clinton Administration did not include compliance assessments for MTCR commitments in that document. (MTCR issues were not added to the NCR until the George W. Bush Administration, which was apparently less interested in “fudging” compliance assessments to protect proliferators from embarrassment.) Nevertheless, this history of “fudging” makes especially troubling the Obama Administration’s deletion of detailed discussions of U.S. compliance analysis standards under the NPT’s Article II. Why was it so important to water things down?
One might, in fact, think that it is particularly important today to maintain analytical rigor. The United States is presently locked in a diplomatic standoff with Iran and its apologists over issues of nuclear nonproliferation noncompliance – a struggle in which the legal implications of dual-use technology are precisely at issue. Iran and its friends claims its nuclear program is a purely legitimate and entirely innocent one devoted to civilian energy production. Most observers think this is nonsense, and that Iran’s efforts are clearly aimed at developing a nuclear weapons capability. Essentially alone, however, the United States has hitherto been willing to describe Iranian noncompliance in terms that specifically include violation of the NPT’s Article II. (From the beginning of the Iranian crisis, most governments have spoken only vaguely of Iran’s “nonproliferation obligations,” leaving wiggle room for letting Tehran off the hook in return merely for returning to compliance with safeguards – that is, allowing IAEA inspectors to watch while the country builds the infrastructure for producing fissile material it will eventually use in weapons. To this all have now added noncompliance with U.N. Security Council resolutions, a type of violation that can be made to evaporate whenever the Council wishes. Article II violations, however, seem to scare most diplomats: they are so ... weighty.) What a time for America to retreat from openness and accountability on this very issue!
As a deliberate evasion of accountability – a policy choice in favor of opacity and compliance assessment wiggle room that could facilitate and conceal Clinton-style “fudging” as easily as mask intellectual laziness – the current NCR’s phrasing on Article II standards cannot help but make U.S. nonproliferation diplomacy more difficult. Such a retreat from openness and probity is disappointing.
But things are far worse than that. The Obama NCR does not simply retreat into evasions when it comes to articulating how it does Article II compliance assessment: disgracefully, it does this for a reason, for it also actually retreats from the U.S. Government’s prior Article II assessment on Iran.
As we have seen, the chapeau to the 2010 NCR’s section on the NPT tips its hat to the idea of assessing program intent (“purpose”) in making Article II compliance assessments. When it comes to Iran, however, the Obama Administration actually refuses to discuss purpose at all. Even though more information is (publicly) available now about actual Iranian weaponization work, the new NCR never declares Iran’s program to be designed to further its nuclear weapons ambitions. (In this respect, in fact, the Obama NCR actually says less about Iran’s intentions than did the January 1993 Noncompliance Report and every NCR since then, which assessed Tehran to be developing a nuclear weapons program.)
Moreover, the Obama NCR takes pains to repeat the mischievous phrasing from the unclassified “Key Judgments” section of the 2007 National Intelligence Estimate (NIE) on Iran – language drafted on a jaunt through the intelligence bureaucracy by one of the very State Department officials whom the Clinton Administration used to send to Capitol Hill to explain why missile transfers weren’t really missile transfers, and who has now been duly rewarded with a political appointment in the Obama State Department – that Iran has “halted” its nuclear weapons program. This language was misleading enough in 2007, but the Obama Administration now makes it more so, because the current NCR declares simply that “Iran had a comprehensive nuclear weapons development program that was ordered halted in [the] fall [of] 2003.” It does not bother to reiterate the NIE footnote making clear that this “halt” only applied to outright weaponization work, and thus did not necessarily mean that Iran had abandoned its nuclear weapons ambitions, or that Iran did not intend its uranium enrichment and plutonium reprocessing to support such ambitions. As senior U.S. intelligence officials have long made clear in explaining the 2007 NIE, only some of the “component parts” of Iran’s nuclear weapons program, and indeed perhaps “the least significant” portion, allegedly stopped in 2003. Allied intelligence agencies – and even Obama intelligence officials – are also reported now to think that Iranian weaponization research has restarted. Such crucial details, however, are not offered in the Obama NCR today. All we are told there is that Iran’s weapons program has “halted.”
The Obama Administration cannot avoid the fact that the U.S. Government previously found Iran to be in violation of Article II, and the new NCR admits – albeit apparently just as a matter of historical record – that “[i]n the 2005 Report, the United States found that Iran had violated the ‘seeking or receiving any assistance’ provision of Article II.” In keeping with its misleading appropriation of (some of) the (apparently outdated) language of the 2007 NIE, however, the Obama Administration undermines that 2005 Article II assessment, noting merely that there indeed was “evidence that in the past Iran received assistance that could be used in the manufacture of nuclear weapons.” One cannot fail to notice the pointed reference to “the past.”
Is Iran currently in violation of Article II? The Obama Administration apparently thinks not: it finds violations of IAEA safeguards, a violation of the NPT’s Article III (relating to safeguards), and violation of U.N. Security Council resolutions, but there is no finding of Iranian Article II noncompliance anywhere in the 2010 Noncompliance Report. The only current problem that the Obama Administration identifies in this regard is simply that “Iran refuses to resolve concerns regarding its former nuclear weapons program.” (Note the use of the term “former.”) The Obama Administration has apparently decided that Iran is not in violation of Article II of the NPT.
V. Fudging ... Again
The picture thus becomes clear, and we now see why it was necessary for the Obama Administration to delete the NCR’s discussion of “warning signs” or “indicia” suggestive of illicit nuclear weapons intent for purposes of Article II compliance analysis. The Obama NCR concedes that nuclear weapons “purpose” is legally relevant, but it does not wish actually to be held accountable for explaining how it assesses such things, or fails to. Such accountability would force it to explain why it now refuses to declare Iran to be in violation of Article II of the NPT.
(Such scrutiny would be very hard to bear. Secretary of State Clinton says “Iranian intentions” are bad, and claims to be dedicated to preventing Tehran from acquiring nuclear weapons, but what does she think Iran’s actual intentions are? Could the Obama Administration possibly think that Iran’s purpose is not to develop nuclear weapons? If so, Obama diplomacy on Iran is appallingly dishonest and the NCR’s volte face a rather foolish admission thereof. If not, the administration will be hard-pressed to sustain its retreat on compliance assessment in the new Report: why, pray tell, hide Iran’s Article II violation? By its nature, fudging does not look too good in daylight.)
Previously, the U.S. found Iran to be in violation of both the “seeking or receiving any assistance” and the “not to manufacture or otherwise acquire” portions of Article II. The Obama Administration’s selective retelling of the fact of that 2005 finding carefully ignores the second provision, however – as well it must, if it is to pretend that no Article II violation currently exists. (It is, after all, under the “manufacture” prong of Article II that program intent can most directly affect the legality of dual-use technology, even if such technology is indigenously produced and thus does not constitute “assistance” from elsewhere. This is a critical issue in the current U.S. diplomatic confrontation with Iran.) This is also why the discussion of “warning signs” had to be erased: as applied to Iran, such indicia point too obviously toward an inference of Iranian weapons intent, and hence an Article II problem.
This, then, is pretty craven stuff: the Obama Administration has dumbed down its NPT compliance analysis in order to permit it to absolve Iran of currently being in violation of Article II. Assuming it has bothered to read the 2010 Noncompliance Report, Tehran will no doubt be delighted at the news. Anyone with a nostalgic attachment to intellectual integrity and honesty in U.S. compliance assessment, however, should be less pleased. M-11 missiles, anyone?
Christopher A. Ford was formerly Senior Fellow and Director of the Center for Technology and Global Security at Hudson Institute.
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