Political gambling is a dangerous game.
This past week, President Trump withdrew America from the Iranian nuclear deal. Formerly known as the Joint Comprehensive Plan of Action (JPOA), the deal, which was finalized in the summer of 2015 by the Obama administration, was designed “ to ensure that Iran’s nuclear program will be exclusively peaceful.”
As far as this post is concerned, I am not particularly interested in analyzing the merits of the deal itself or in prognosticating future political problems that may arise out of President Trump’s decision. I am not interested in discussing how former administration members have been trying to remind people of what the deal could have done, but I am quite fascinated by the efforts of some members of individuals to rewrite what the deal was.
In his statement on the matter, former Secretary of State John Kerry wrote that President Trump’s withdrawal from the deal was an act of America breaking its word. Samantha Power, the former US Ambassador to the United Nations, tweeted that “Trump has demolished America’s credibility,” with this decision. President Obama himself, in his full statement, referred to President Trump as “flouting” an important agreement “that our country’s leading diplomats, scientists, and intelligence professionals negotiated.”
People can agree with the logic of these statements in so far as they are capable of characterizing the deal as effective and Iran as a good faith actor.
However, there is a sobering reality that nobody from the former administration has been willing to concede, and that is the fact that the Iran deal itself was designed to be a non-binding executive agreement from the very beginning. One need not merely take my word on this matter to understand this conclusion, for the Obama administration itself, during the time in which the deal was being crafted, spoke of the deal in this way.
Back in January of 2015, White House Press Secretary Josh Earnest, said, when speaking of the Iran deal, “this administration, as I mentioned, is committed to being in close touch with the Congress, whatever the outcome. But a congressional vote on a non-binding instrument is not required by law and could set an unhelpful precedent for other negotiations that result in other non-binding instruments” (emphasis added).
Several months later, Jen Psaki, one of the top State department spokeswomen for President Obama, repeatedly referred to the deal in one of her press conferences as a series of “political commitments,” and she described the deal as “a non-binding international arrangement” (emphasis added).
Top professors at Harvard Law School have been arguing this very point since the agreement was finalized.
To be clear, as far as the Obama administration was concerned, pursuing the deal in such a manner was a rational political choice, for it knew that there was “no chance to secure approval for the Iran Deal from Congress.”
However, every political choice is accompanied by a political tradeoff, and President Obama’s decision to finalize the Iranian nuclear deal as a non-binding executive agreement as opposed to a binding international treaty is no exception to this rule.
Understood in this light, the Iran deal was nothing more than a political gamble. As Jack Goldsmith, a highly esteemed law professor, has recently written, the Obama administration ultimately took a bet on this matter, as they hinged the success of the Iran deal on the chance assumptions that either Hillary Clinton would win the election or that the “reimposition of sanctions [would be] too painful politically.”
As with Trump’s decision to leave the Paris Climate Agreement, a deal which was plagued by similar structural deficiencies, this past week’s withdrawal from the Iran deal marks not just another re-alignment of American foreign policy. It was a reminder of the problems involved in placing important diplomatic measures on unstable political grounds.
It was a lesson in political gambling.