Iran Sanctions and the Dangers of Overdetermination

By Yishai Schwartz
Monday, June 15, 2015, 11:30 AM

A few days ago, the Associated Press reported that “the Obama administration may have to backtrack on its promise that it will suspend only nuclear-related economic sanctions on Iran.” This promise is the product of months of sparring between the White House and opponents of the looming Iran deal over whether Iran’s generally destabilizing role can be separated from its nuclear ambitions. While critics like former Secretaries of State Kissinger and Shultz have warned that the absence of “linkage between nuclear and political restraint” will have dire consequences, the White House has insisted that the nuclear issue can and must be be treated separately.

At the base of this notion of severability lies the assumption that nuclear and non-nuclear sanctions will be separated. As Treasury Secretary Jack Lew said recently: "Iran knows that our array of sanctions focused on its efforts to support terrorism and destabilize the region will continue after any nuclear agreement." On this account, American policy toward Iran can proceed in two tidy parallel tracks, simultaneously generous (in exchange for nuclear concessions) and punitive (in response to its unchanged regional aggression). But as AP reporters Bradley Klapper and Matthew Lee explain, this sort of parallel thinking is sheer fantasy, at least in the area of sanctions. The sanctions imposed because of Iran’s nuclear activities are simply so entangled with those imposed for terrorism or other reasons that it is impossible to separate each out.

Disappointingly, the AP story presents this intertwinedness as primarily a political headache: The web of overlapping sanctions will inevitably force the administration to “backtrack on its promise” and to take steps that “would face substantial opposition in Congress and elsewhere.” This perspective is bizarrely narrow, and overly focused on domestic politics. The primary problem with the interwoven sanctions’ is not that the President may run into some messiness in his interactions with Congress; the problem is that the country is engaged in a high stakes diplomatic negotiation with no clear benchmarks.

First, the inseparability is even worse than the AP article suggests. The first sanctions leveled against Iran (by presidential directive) arose from Iran’s seizure of US embassy personnel and its attacks on US ships during the Iran-Iraq war. In 1996, when Congress first began legislating specific sanctions against Iran with the Iran and Libya Sanctions act, it made clear that the sanctions were as much about terrorism as proliferation. The law explicitly cites Iran’s “support of acts of international terrorism,” and its text mentions support for terrorism exactly as many times as its weapons program.

The most recent sanctions legislation, the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, reflects the overdeterminedness of the current sanctions regime particularly strongly; its opening list of “findings” lambasts Iran for everything from nuclear activities, to terrorism, to domestic human rights violations. Perhaps most telling, the vast majority of executive orders that deepened and defined sanctions cite as their basis President Clinton’s Executive Order 12957, which was described at the time by the White House as a response to Iranian support for terrorism even more than to its nuclear activities.

There is simply no “sorting out this mess”—despite the reportedly tireless efforts of Treasury’s sanctions czar, Adam Szubin. The nuclear sanctions cannot be carefully pulled out and isolated by meticulous lawyers, because in most cases, they are inherently inseparable.

As a result, the primary challenge is not the White House’s political problem in explaining itself to Congress and its critics; the far more serious problem is that our negotiators have no clear baseline. Lacking a clear delineation of which sanctions are tied to which offenses, American negotiators have no signposts to point to as they wrestle with their Iranian counterparts over which sanctions should go and which should stay. They can barely ever say “these sanctions are off the table because they are unrelated to your nuclear activities, and we are only here to negotiate about the latter.” After all, on paper, sanctions are largely a web. The decision of how to treat any specific sanction quickly becomes a matter of discretion, and when something is discretionary, negotiators’ leverage dissipates. Soon, there are no red lines. Everything is on the table.

This is how we enter the strange world where elements of Iran’s ballistic missile program are “nuclear-related” enough to justify dialing back sanctions that focus on them—while still being separate enough from its nuclear program that they need not be inspected or shut down. And it is how we enter a world where, according to an increasingly despondent Benjamin Netanyahu, world powers are “are accelerating their concessions to Iran.”

It will take years, and likely decades to learn the proper lessons from these negotiations and from our decades long conflict with Iran. But one of the first may be the danger of overdetermined sanctions. A long list of grievances may feel cathartic and thorough, and it is an easy way to please a coalition of interests who want to demonstrate their support for a variety of causes (non-proliferation, democracy, human rights, anti-terrorism, Israel etc). A dearth of clarity on the purpose of sanctions and abundance of discretion on when to end them may seem like a gifts to a president, but they are also poison pills to negotiators. Because when sanctions are about everything, they are also about nothing.