Argument

Iran Is No Existential Threat

The best way to rescue Obama's failing diplomacy with the Islamic Republic is to stop letting Israel call the shots.

After months of halfhearted, fruitless attempts at engagement, the United States and its European partners are effectively re-enacting George W. Bush's Iran policy. In 2006, after Iran had ended a nearly two-year voluntary suspension of uranium enrichment, then-U.S. president pushed the International Atomic Energy Agency (IAEA) to send Iran's nuclear file to the U.N. Security Council, which duly imposed sanctions on the Islamic Republic. But the sanctions did not prove "crippling," as Bush had hoped: Iran continued to expand its nuclear infrastructure, and the risks of a military confrontation between the United States and Iran climbed.

Unfortunately, Barack Obama's administration has decided to repeat this sorry history. Last Friday, the IAEA passed a resolution urging Iran to send most of its current stockpile of low-enriched uranium abroad. It also reported Iran once again to the Security Council. Iran has wasted no time in upping the ante rather than backing down, saying it would restrict cooperation with the IAEA only to those measures "statutorily" required. Iranian President Mahmoud Ahmadinejad also announced that the Islamic Republic would build 10 new enrichment facilities in coming years. He later added, "Iran will produce fuel enriched to a level of 20 percent," the level required for Iran's research reactor in Tehran. This would be well above the 3 to 4 percent level that Iran has already achieved in producing low-enriched uranium and would take Iran closer to the 90 percent-plus level required for weapons-grade fissile material.

These developments again demonstrate the counterproductive futility of enshrining uranium enrichment and sanctions as the keys to resolving the nuclear issue. By prompting Tehran to reduce cooperation with the IAEA, the United States and its European partners have done real damage to the international community's ability to monitor the state of Iran's nuclear program. More broadly, U.S., British, and French insistence on "zero enrichment" in Iran makes successful nuclear diplomacy with Tehran impossible. At this point, there is no chance that Tehran will accept "zero enrichment" as a negotiated outcome, for at least two reasons: It is a country-specific formulation applied to Iran but not to anybody else, and it requires Iran to forswear its sovereign right to the full range of civil nuclear technology.

If the United States and its partners continue on their present course, the Islamic Republic will continue to expand its nuclear infrastructure, and the risks of an eventual military confrontation between the United States (or Israel, with U.S. support) and Iran will, once again, rise inexorably. There is no set of sanctions the Security Council might plausibly authorize that would change this reality, and various unilateral and secondary sanctions initiatives moving through the U.S. Congress will not work either.

A more constructive approach would seek to maximize international monitoring of Iran's nuclear activities by emphasizing country-neutral formulations for curbing nuclear proliferation in the Middle East. This would require international acceptance of enrichment on Iranian soil. Getting Iran to ratify and implement the Additional Protocol to the Nuclear Non-Proliferation Treaty would be an important step in this direction, but the most effective country-neutral initiative would be the establishment of a nuclear weapons-free zone (NWFZ) in the region.

Although talk of an NWFZ -- or, more broadly, a weapons of mass destruction-free zone (WMDFZ) -- in the Middle East is not new, serious consideration of these ideas in U.S. foreign policy circles always stops as soon as Israel's nuclear status comes up. For years, the Israeli position has been that, once Arab-Israeli peace is achieved, it might become possible for Israel to join in creating an NWFZ/WMDFZ in the region.  Although American foreign-policy elites typically take this position at face value, it deserves a higher degree of critical scrutiny.

It is simply not analytically credible to describe the unresolved Palestinian, Syrian, and Lebanese tracks of the Middle East peace process as "existential threats" to Israel. The 1978 Egypt-Israel Camp David accords effectively dispelled the prospect of Arab armies uniting to "push the Jews into the sea." Similarly, there is no amount of additional armed capabilities that would allow Palestinian and Lebanese militants to destroy Israel without also destroying the populations they are ostensibly seeking to liberate.

More recently, the dominant Israeli discourse about Iran has routinely characterized an Islamic Republic with a nuclear "breakout" capability -- not to mention actual nuclear weapons -- as an "existential threat" to Israel. (Both Prime Minister Benjamin Netanyahu and Defense Minister Ehud Barak have reiterated Israel's position that Iran's full suspension of uranium enrichment is the only acceptable outcome from nuclear talks with Tehran.)  But this position, too, does not stand up to rigorous scrutiny. It is not analytically serious to describe an Iran with mastery of the nuclear fuel cycle as an existential threat to Israel or any other state. Even if Iran were to fabricate a nuclear weapon, it is not credible to describe that as an existential threat to Israel -- unless one has such a distorted view of Shiite Islam that one believes the Islamic Republic is so focused on damaging "the Zionist entity" that it is collectively willing to become history's first "suicide nation."

Rhetoric from senior officials and politicians characterizing Iran as an existential threat resonates with the Israeli public, for understandable historical reasons, and Ahmadinejad's statements questioning the Holocaust only reinforce Israeli fears. As a result, there is, effectively, no political debate in Israel about Iran policy.

But, when Israeli politicians and policymakers use politically effective rhetoric about Iran's nuclear development being an existential threat to Israel, what is really motivating them? Fundamentally, Israel's political and policy elites are focused on eliminating Iran's fuel-cycle capabilities in order to preserve a regional balance of power that is strongly tilted in Israel's favor. Regional perceptions that the Islamic Republic had achieved a "breakout" capability would begin to chip away at Israel's long-standing nuclear-weapons monopoly. That, in turn, might begin to constrain Israel's currently unconstrained freedom of unilateral military action.

One can readily appreciate why Israel values its status as the Middle East's military hegemon and wants to maintain the maximum possible room for unilateral military initiative. But that strategic preference is not legitimated by the U.N. Charter, the laws of war, or any international convention. Moreover, Israel's strategic preference for preserving and enhancing its military hegemony does not, at this point, serve the cause of regional stability or containing the spread of nuclear weapons capabilities in the Middle East.

The United States has an abiding commitment to Israel's survival and security. But that commitment should not be confused with maintaining Israel's military hegemony over the region in perpetuity, by continuing to allow U.S. assurances of an Israeli "qualitative edge" for defensive purposes to be twisted into assurances of maximum freedom for Israel to conduct offensive military operations at will against any regional target.

It is time for the United States and its international partners to get serious about creating a regionwide framework for controlling WMD capabilities in the Middle East, including the full range of Israel's WMD capabilities, to create a more secure environment for all Middle Eastern states. Obama's observation, in his June 4 Cairo speech, that no single country should determine which other countries are permitted to have particular types of weapons, could be a positive first step in this direction.  But, if he does not follow up purposefully, this will become one more good Obama idea that ends up disappointing the expectations it initially raised.

Office of the Presidency of the Islamic Republic of Iran via Getty Images

Argument

The Danger KSM Still Poses in Washington

The architect of the 9/11 attacks is headed to a criminal trial in New York -- but Obama's made a muddle of the rest of the legal picture.

The dust is settling on the Obama administration's decision to send Khalid Sheikh Mohammed  (KSM) -- the confessed mastermind of the September 11 attacks -- and four of his al Qaeda accomplices to face a criminal trial in New York. The decision highlights the premium Barack Obama's administration has placed on using federal courts to hold terrorists accountable -- as a matter of principle, a way to regain legal legitimacy, and a symbolic break from George W. Bush's administration. But this move only adds to the confusion about what underlying legal principles the administration is applying and the approach it is using to prosecute the "war on al Qaeda."

The Obama administration has decided to try KSM and the highest-value al Qaeda detainees in criminal trials, others in military tribunals, and yet others in no court at all, instead holding them indefinitely in preventive detention. In speeches and legal briefs, the president and his administration have cited the "war on al Qaeda" and the laws of war as the justifications for counterterrorism policies at home and abroad -- everything from detention policy to the use of lethal force (as applied to, for instance, Saleh Ali Saleh Nabhan, a senior member of al Qaeda in East Africa, killed in Somalia in September). Missing in all of this is a coherent legal framework that clearly explains the basis for all of these decisions. 

Indeed, the choice to try KSM and four other al Qaeda members in criminal courts underscores a lack of consistency and confusion. This could ultimately undermine the legal basis to hold terrorist detainees and hinder The United States' ability to collect intelligence effectively in the field. 

The Bush administration used a patchwork of courts to prosecute terrorists, and this approach can be criticized on many levels. But it relied on a clear law-of-war framework as the baseline for its decisions. Federal criminal trials were reserved for U.S. citizens or people captured in the United States, like Jose Padilla. With the KSM decision, the Obama administration has adopted a three-tiered hierarchy -- criminal trials, military commissions, and indefinite preventive detention -- without articulating clearly the basis for such a system. This undercuts the legitimacy of the entirety of the legal system applied to detainees.

To start, KSM's trial could be seen as little more than a show trial. In the criminal justice system, the government presumes innocence. Common-law principles hold that it is better to let 10 guilty people go free than to have one innocent person suffer. But, as Sen. Lindsey Graham noted in a hearing with Attorney General Eric Holder, KSM and the four others will never be released from U.S. custody, regardless of the verdict. That's a political and national-security reality that diverges from the requirements of the criminal legal system -- turning the process into a grand legal fiction.

The KSM decision also effectively relegates military commissions to a second-tier legal system. The administration, which has revised the military commissions, is committed to relying on this process and now must defend it. This is hard to do when the criminal legal system is viewed as pre-eminent.

Additionally, the Obama administration has failed to clarify its venue-selection process. If the sole criterion is the government's likelihood of securing a guilty verdict -- as Holder has indicated -- that too does damage to the credibility of the process. The administration appears to be "system shopping," choosing a court for the likelihood of success and admissibility of evidence rather than selecting it by the nature of the alleged offense. These contortions make the legal process look like a vast legal fiction used simply to justify detention.

Even more worrisome, looming on the horizon is the administration's explanation that dozens of those remaining at Guantánamo will be held preventively -- and that the administration will reserve the right to hold others without any trial, especially al Qaeda operatives picked up on the battlefield. But how will the Obama administration justify detaining some low-level al Qaeda operatives without charging them if the highest level al Qaeda detainees have access to criminal courts?

This muddle has a collateral effect: It calls into question the core principle of intelligence gathering and prevention as the primary mission of U.S. intelligence and law enforcement officials abroad. Are these professionals being asked to gather intelligence (which simply needs to be credible and useful) or evidence (which needs to be admissible in court)? The two activities are not exclusive, and the United States can and has done both. But U.S. operators in the field -- along with their intelligence counterparts around the world -- need clarity about what the United States is trying to accomplish in the first instance.

Thus, the administration's legal approach could have detrimental intelligence-gathering consequences. If gathering evidence is the primary goal and criminal legal procedures apply to detained terrorists, then there will be less time and flexibility to gather information from detainees, who become defendants upon capture. Furthermore, if taking detainees into U.S. custody becomes too problematic or cumbersome, there will be an incentive to allow other countries to hold and interrogate individuals, leading to less usable information for the United States and a higher likelihood of human rights abuses.

Finally, the KSM decision is confusing due to its timing. There is yet no resolution on Obama's overarching detainee policy, and come January, the prison at Guantánamo will remain open, with the legal fate of the majority of the remaining detainees unclear. Meanwhile, the legal landscape in the courts remains murky. There is no final judgment on whether habeas corpus rights apply to detainees at the U.S.-run prison in Bagram, Afghanistan, and the Supreme Court has not resolved whether the courts have the ability to order a detainee from Guantánamo released into the United States.

All of this uncertainty argues for coherency of policy and principle. The prior administration was hobbled by its inability to formulate a lasting and credible legal framework for detention. This president can use his credibility to shape, articulate, and defend lasting legal principles and practices. He has already committed to the war paradigm in his speeches. Now the United States needs to be consistent in its application of this principle and in its defense of its legality.

The trial of KSM and his cohorts will no doubt be the trial of the century, and the prosecution has to succeed. But let's hope the decision to hold them accountable in the criminal system doesn't undermine America's ability to defend the very legal principles and practices that help defend the country against al Qaeda and its allies.

Janet Hamlin-Pool/Getty Images