Re-entering the Drone Debate

Readers will know that I spend a disproportionate amount of my time focused on Iran. The reasons for that are clear enough: the U.S. has skirted the border of a war with Iran for the past decade (if not much longer, as veteran observers of the Iran-Iraq War will note), and for the first time since the Islamic Republic’s founding, the chance exists for the U.S.-Iran to overcome its posturing and develop at least tepid relations with each other. That – in and of itself – is reason to exert one’s efforts almost single-mindedly to Iran.

But that has been far from my sole interest. While in law school, I studied public international law and U.S. national security law, and I was very invested in the debates surrounding the U.S.’s “global war on terror” – a war that rages on 12 years following its inception. One of those debates dealt with the U.S.’s “targeted killing” program, which first begun under the Bush Administration but sharply escalated during Obama’s term. Those familiar with the legal scholarship and debate on the U.S. drone program will, no doubt, know just how fraught and tense that debate is: there remains a gaping hole in our understanding of whether law constrains the U.S. in its fight against transnational terror groups, what law (if it did apply) would apply to U.S. conduct in this ‘war’ and where, and whether there can be any meaningful sanction for U.S. conduct that violates identified law. That, too, is reason alone to flock to the debate, and that is just what I did while in law school and continued to do sporadically (time-permitting) thereafter.

Thankfully, I’ve just recently been given the opportunity to revisit the debate, thanks to LobeLog (the foreign-policy blog of IPS News). I’ve been contributing to the blog ever more frequently, tasked with writing about the Obama Administration’s “targeted killing” program, and I wanted to let readers know about it. Below, I excerpt and link to three pieces I’ve published at LobeLog this month in the case readers are interested.

Here I discussed the latest Human Rights Watch report regarding a U.S. drone strike on an alleged Yemeni wedding procession:

“Despite successive rounds of official statements regarding the drone program — the latest being President Obama’s May 2013 speech at the National Defense University — the White House’s legal rationale for drone strikes remains murky at best. Also, a wide chasm continues to divide the Administration’s policy on targeted killings (e.g., the promise that civilians will go unharmed in strikes) from what is actually taking place in the field. The White House has, to this day, refused to offer the legal rationale for individual strikes, as human rights groups have requested, and have not publicly released internal reviews of strikes which have allegedly gone awry. This has made it impossible to adequately assess the Administration’s compliance not only to international legal norms, but also to its own ‘targeted killing’ policy.”

Earlier I wrote about news that the Obama Administration is debating whether to place another U.S. citizen on the ‘kill list':

“News broke that the Obama Administration is considering targeting a U.S. citizen located in Pakistan with lethal force. This quickly restarted the debate over what legal authorities the President has to do such, what policies the Administration has put in place to ensure that the targeted individual, in fact, poses a “continuing, imminent threat to U.S. persons,” and whether the legal criteria being employed for targeting meets international law standards.”

Finally, I wrote about news that there has been a long drought in U.S. drone strikes in the Pakistani tribal areas:

“It is unclear whether this development will continue in the months ahead. Good reasons, however, suggest so, as the war in Afghanistan draws down and U.S. (potentially) loses access to bases in the country and human intelligence sources.”

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Fixing the Coursera Problem

Nima Shirazi has an excellent piece on the Coursera debacle. For those who might have missed this story, MOOCs (massive open online courses) – including Coursera – have been prevented from offering their educational services to students in Iran, Cuba, and Sudan, thanks to U.S. sanctions. Students in Iran, for example, were greeted with a page that looked like this when they tried to access Coursera a couple of weeks ago.

News of this has been greeted with dismay from many corners. Denying Iranian students access to online education tools, like Coursera, evidences little but the sledge-hammer approach of U.S. sanctions. Nima does an excellent job of highlighting the most disturbing aspects of this.

But I wanted to add just a couple of things, primarily how easy it would be for the White House and the Treasury Department to fix this provided the will was there. Two options immediately come to mind – both of which are eminently doable and would help alleviate the problems that the U.S. sanctions are causing for Iranians.

What’s the Law?

In regards to Iran, the relevant law is located in CISADA (the Comprehensive Iran Sanctions and Divestment Act). Passed by Congress in 2010, CISADA enacted a de facto trade ban on Iran, barring the export to Iran of U.S.-origin goods, services, and technologies, and the import to the U.S. of Iranian-origin goods and services. (The former, of course, was applicable to Coursera.) Nonetheless, CISADA allowed for limited exceptions to the U.S. export ban, as well as provided to the President the authority to create regulatory exceptions to the wider trade ban.

Sec. 103(b)(2) of CISADA reads as such:

(A) IN GENERAL – Except as provided in subparagraph (B), no good, service, or technology of United States origin may be exported to Iran from the United States or by a United States person, wherever located.

Exceptions, however, include:

(B)(i) …The exceptions provided for in section 203(b) of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)), including the exception for information and informational materials, shall apply to the prohibition in subparagraph (A) of this paragraph to the same extent that such exceptions apply to the authority provided under section 203(a) of that Act.

If we turn to Section 203(b) of the IEEPA, we get a better idea of exactly what constitutes “information and informational materials” within the meaning of the exceptions to the U.S. export ban located at CISADA Sec. 103(b)(2):

50 U.S.C. §1702(b): Exceptions to grant of authority

The authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly –

(3) the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, or news wire feeds…

Obviously, thanks to the trouble Coursera and other MOOCs have run into, the Treasury Department has treated MOOCs as providing “services” not captured by the “information and information materials” exception. What is critical to remember is that this is a policy choice, not a legal mandate. The Treasury Department has a wide berth within which to interpret the relevant law in CISADA, and those who are familiar with U.S. administrative law will recall that U.S. courts generally defer to federal agencies when, in the absence of an “unambiguously expressed intent of Congress,” an agency’s reading of a particular statute is “based on a permissible construction of the statute.” Certainly, in this case, a “permissible construction” of CISADA would allow for the export to Iran of educational services not unlike that offered by Coursera. What would be needed is for the Treasury Department to interpret Coursera’s activities either as not “services” within the meaning of CISADA §103(b) or as “services” not captured by the export ban thanks to the “information and informational materials” exception.

In other words, nothing in the law would prevent the Treasury Department from permitting MOOCs to offer their services to students residing in Iran, so long as the Treasury read such educational services as fitting within the “information and informational materials” exception. Treasury is not obliged to make the “correct” reading of the statute, nor even adhere closely to what legislators intended when they drafted the law, but rather merely to render a “permissible construction of the statute” when implementing it. This is a very low bar that the Treasury Department would need to hurdle. This, however, it has chosen not to do.

But that is not the only way the Treasury Department could resolve this ongoing problem. It has, at least, one other option, and that is to create a regulatory exception to the export ban provided in CISADA Section 103(b). That means that even if the Treasury were to read Coursera’s activities as “services” not fitting within the “information and informational materials” exception, it still has the broad authority, by virtue of CISADA Section 103(d), to except certain activities that would otherwise be sanctioned.

(d) REGULATORY AUTHORITY. –

(1) IN GENERAL – The President shall prescribe regulations to carry out this section, which may include regulatory exceptions to the sanctions described in subsection (b).

It is this authority that allows OFAC to issue permissive licenses for what would otherwise be sanctioned activities. It is also this authority that would permit OFAC to issue a license for the kind of educational services that Coursera (and MOOCs more generally) provide to students residing in Iran. Thus far, however, the Treasury has made no moves to do such. This inactivity is, again, a matter of policy, not law. The White House can direct the Treasury Department to provide an exception to CISADA’s export ban on educational services, provided it has the will to do so.

I just wanted to clarify this, because pressure should be brought on the White House to ensure that students residing in Iran have access to Coursera’s materials. The United States has long tried to fit its policies towards Iran under the nomenclature of ‘targeted sanctions’, but it is totally unclear why Iranian students should be bearing the burden, as they are in this case. This disconnect between the U.S.’s actual policies and their rhetorical frame should be where activists jump in and exert significant pressure on the White House.

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Edward Said on Covering Iran

The late Edward Said contributed a great deal to uncovering the techniques by which we in the West come to understand those over whom we exercise a degree of control and authority. His work, starting with the epochal study, “Orientalism,” interrogated these techniques with due seriousness, separating the representation of a people from a people themselves and asking how that representation took shape and came to dominate popular understandings. As he himself said, “…the Orient is an idea that has a history and a tradition of thought, imagery, and vocabulary that have given it reality and presence in and for the West.” In other words, while the West studied, Said ensured they would be studied in return. It was a critical intellectual move whose lasting impact will be long felt.

His work has given rise to a contentious body of theory, some of whose value I have deep reservation, but as Said himself noted, “…the value and credibility of my case can be demonstrated by being much more specific, in the way, for example, Noam Chomsky studied the instrumental connection between the Vietnam War and the notion of objective scholarship as it was applied to cover state-sponsored military research.” This fact-intensive approach, in which the very process of cultural understanding is unveiled, has been a too-often-ignored part of Said’s thought, and yet remains the true avenue to bring alive the thrust of his ideas.

Perhaps my favorite example of this in Said’s own work is his “Covering Islam,” published in 1981 and several chapters of which are dedicated to what he calls the “Iran Story” (i.e., the revolution and its aftermath in the American media). Here, Said first approached an issue that would come to dominate U.S. political discourse up to the present: how the United States comes to make sense of the Islamic Republic and its challenge to U.S. hegemony. Said’s treatment is masterful, especially considering how early in the revolution’s aftermath he was writing, both during and right after the hostage crisis. Below, I extract two related pieces from these essays, both for their insight into past and present treatment of Iran in U.S. political folklore. Their relevance to today’s predicament should, no doubt, be obvious:

“Iran as a contemporary society going through extraordinarily important change had little impact on the Western press generally; certainly Iranian history for at least the first year of the revolution was rarely allowed to appear with much integrity. Clichés, caricatures, ignorance, unqualified ethnocentrism, and inaccuracy were inordinately evident, as was an almost total subservience to the government thesis that the only things that mattered were ‘not giving in to blackmail’ and whether or not the hostages were released. Conclusions were given recklessly; a contest in progress was rashly decided by the reporter, with the result that the distinctive continuities and discontinuities of Iranian revolutionary life never emerged…

And yet fairness enjoins us to note the changes taking place in the media as the hostage crisis wore on during 1980…The embassy seizure — immoral, illegal, and outrageous, politically useful in the short run but wasteful for Iran in the long run — had quite literally forced a crisis of awareness in the United States. From being an almost forgotten, taken-for-granted colony in Asia, Iran had intermittently become an occasion for self-examination on the part of the United States. The Iran story’s very persistence, its anxious, unseemly duration, gradually had modified the media’s early single-mindedness and narrow focus into something more critical and useful. In short, the embassy seizure instituted process where there had been only static anger; in time this process acquired a history of its own, through which the media — and Americans generally — saw more of themselves than they had hitherto.”

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Everything We Know is Wrong

U.S. Senator Christopher Murphy (D-CT) attended the Munich Security Conference this past weekend, where he sat on a panel alongside Iran Foreign Minister Javad Zarif, Swedish Foreign Minister Carl Bildt, and IAEA Director-General Yukiya Amano. (You can catch video of the panel here.) He then returned to the States in time to partake in Tuesday’s Senate Foreign Relations Committee hearing on Iran, where he played defense for the White House and argued against any Congressional action that would have the effect of disrupting the ongoing talks with Iran and the P5+1. In doing so, Senator Murphy has become a player in the policy field, representing the United States in international fora and playing vanguard for the White House in helping derail the new Iran sanctions bill.

But something he said during his short remarks at the Committee hearing struck me as an emblem for how little we still understand Iran and the interests that motivate it. Showing how he remains an ardent supporter of the U.S. sanctions on Iran even while opposing new ones, Senator Murphy recalled with a smile how Foreign Minister Zarif had made the “laughable contention” that U.S. sanctions had done little to press Iran to the negotiating table. Obviously, Murphy meant, Iran had been dragged to the table because of the U.S. sanctions, and Iran’s good-faith negotiation thus far was nothing more than a design to procure the desired sanctions relief.

For Murphy, sanctions are thus the sole cause for Iran’s willingness to negotiate. This view is not an atypical one. It is rather the premise upon which all discussion of the Iran nuclear dispute begins in the United States. To hold otherwise — i.e., to admit that Iran might have interests of its own that go beyond mere sanctions relief and that signal a desire to reintegrate with the broader world in unique and independent ways — is alleged to be anathema to reasoned debate and suggests that someone has picked up the Iranians’ talking points and run with them. Murphy can smirkingly write off Zarif’s “laughable contention” the way he does precisely because of this ‘sacred cow’ in U.S. political discourse. The unchallenged, after all, arrive arrogant.

But as others — including Hossein Mousavian, a former Iran official part of Rouhani’s old negotiating team — have repeated ad nauseam, Iran is negotiating now with virtually the same proposal it had offered the E3 back in 2005. That was long before the U.S. started its massive sanctions push first at the United Nations and then in Congress. Chronologically, then, relief from the then-phantom sanctions could hardly have been a motivating factor for Iran to negotiate seriously with the Europeans, as they did in the pre-Ahmadinejad period.

When Mousavian sat on a panel with seasoned U.S. diplomats, Thomas Pickering and Robert Einhorn, last month at the Asia Society, he pointedly asked Einhorn, who had just retired from his post as the U.S.’s chief negotiator with Iran, how to explain Iran’s March 2005 proposal if sanctions were the cause for Iran’s willingness to deal seriously on the nuclear issue now. Einhorn didn’t oblige, coyly stating that he didn’t want to go into it. His answer, however, would have been as interesting as his silence was revealing.

  • Did he not want to discuss the issue because it would strike down the mantra that has dominated U.S. political discourse of Iran since at least 2006?
  • Would it be the wrong time to admit to past U.S. mistakes in dealing with Iran on the nuclear issue, including the lost opportunities of the pre-Ahmadinejad period?
  • Is there something about Iran’s March 2005 proposal that didn’t make it an eminently reasonable perch from which to negotiate tighter limits on Iran’s nuclear program?
  • Why, in short, is Iran’s March 2005 proposal eviscerated from U.S. political memory?

These are all important questions that deserve answer. But underlying them is an even deeper one: Does the United States and its political leadership have the ability to recognize and appreciate Iranian activity that deviates from the tableau vivant that the United States itself has created for Iran?

I’m not so sure. This whole episode suggests not. The failure of U.S. political leadership to recognize the diversity of Iranian interests in coming to the table, only one part of which is a desire for sanctions relief, is troubling, insofar as it signals we don’t understand either the intentions or motivations of the party sitting across from us. And if that is the case, believing that sanctions relief is the only, or even most important, source of leverage we have over the Iranians during negotiations may prove to be very untrue and may spell trouble for the fate of the upcoming negotiations.

There may come a time in the not-so-distant future where we realize that everything we know about Iran is wrong. 34 years of endless hostility might have had that effect. But let’s hope that leadership in the White House and Congress can be a little more sensitive to the way Iranians view things from the other side of the table. Doing so might just not help illuminate the difficult terrain both parties have ahead in the negotiations, but may also ensure that the U.S. is offering the right things at the right time to extract important concessions from Iran in regards to its nuclear program.

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Kennan on Iran Oil Crisis

George Kennan’s diaries are out right now, and one passage struck me as emblematic of all that is wrong with U.S. political culture. For those who don’t know, Kennan was one of the chief architects of U.S. postwar planning and remained a leading light in foreign policy circles long after his star had waned towards the end of the Truman administration. He preached amoralism in U.S. foreign policy, being one of the key proponents of the ‘realist’ school of international politics, and his analysis, on the whole, tends to be a temperate one.

It is this latter element, though, that makes the below passage so curious and yet telling, as the ‘realist’ school is, by its own conceit, supposed to offer sober assessments, empty of ideology, of the geopolitical environment, so as to best advance what is identified as the ‘national interest’. Yet, as the passage makes clear, Kennan’s entire frame is bedeviled by ideology: the Iranians (and Mossadeq, in particular) described as wracked with parochial interests (such as that of receiving fair value for their petroleum resources), as compared to the U.S. and Britain, who have a ‘responsibility of the most solemn and far-reaching nature…[to the] entire Western world’ to ensure the oil consortium’s interests remain undisturbed.

To Kennan, Iran’s interest in exerting control over its own resources is nothing more but ‘amour propre’ (or vanity), as compared to the U.S. and British interest which is ‘important in a much more serious sense.’ This is not atypical in imperial histories (and as I have argued, is being replicated today), as the strong justify their actions by lofty appeal, while the weak are derided for their provincialism.

Here is the passage, written in 1952, in the midst of the Iran oil crisis:

‘The Western world has no need to be apologetic about the minimal facilities and privileges it requires in the Middle East. Most of these have already been in existence for long periods of time, and there has grown up around them a right of usage similar to that of my country neighbor whom I permit for years on end to drive over my property to reach his own. The thesis to which we acquiesced in Iran: that such arrangements can be cancelled or reversed abruptly, on the basis of somebody’s whim or mood, is preposterous and indefensible. It is a dangerous distortion of the concept of sovereignty. But beyond that the British and ourselves have a responsibility of the most solemn and far-reaching nature which prohibits our being spendthrift and over-generous with things that represent the strategic assets not of ourselves alone but of the entire Western world. The commitments we have undertaken to our allies in continental Europe and elsewhere place us in a new position: that of an agent as well as a principal — and charity, by consequence, is beyond our competence. Such things as Abadan and Suez are important to the local peoples only in terms of their amour propre — and an artificially inflamed amour propre at that. To us, some of these things are important in a much more serious sense, and for reasons that today are sounder and better and more defensible than they ever were in history…’

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Get Congress Out of the Way

Co-authored with the National Iranian American Council’s Policy Director, Jamal Abdi, I have a post over at CNN regarding how Congress is getting in the way of a strong and secure deal with Iran.

The basic point is this: If, as Iran hawks claim, the goal of the new Iran sanctions bill is to empower the President to get as best a deal as possible during the upcoming talks with Iran, then the bill poorly serves that purpose. Rather than empowering the President, the Nuclear Weapons Free Iran Act undercuts the President by both forcing on him the terms of a final deal with Iran and significantly limiting his ability to waive the sanctions should that deal be reached. This makes so little sense, in fact, that one need question whether the stated goal is not merely a ruse meant to hide ulterior motives (e.g., barring rapprochement with Iran altogether).

As we argue instead, if Congress wants to empower the President, it has ample room to do so. For one, it can signal trust in U.S. negotiators by allowing them free reign to work out the terms of a final deal with Iran. As Nicholas Burns, the chief U.S. negotiator with Iran during the Bush II administration, recently noted, it is far better to have one person negotiating on behalf of the United States than 525. Congress needs to get out of the business of conducting foreign policy and instead leave that to the branch of government most suited for it: the Executive. It has become an increasingly unseemly sight for Congress to run roughshod of each and every of Obama’s diplomatic victories.

Second, Congress can provide the White House the ability not merely to waive sanctions on a time-limited basis should a deal be reached with Iran, but also to lift the sanctions permanently. As we note, the fact that the best the President can offer Iran right now are limited waivers of existing sanctions crimps Obama’s leverage during negotiations. If Iran has serious concerns about the ability of the White House to follow through on any deal reached, then Iran will be able to extract better terms from the United States than would otherwise be possible. Such an outcome makes no sense if the ultimate goal of negotiations is to secure a strong deal that puts serious constraints on Iran’s nuclear program. The less the White House has to offer, the less Iran will be willing to give up at the negotiating table.

But things are topsy-turvy in Washington. Congress speaks of empowering the President by limiting his authority to negotiate a deal and lift sanctions once a deal is secured. Meanwhile, those who advocate for Congress to extend plenary power to the White House to secure a final and comprehensive deal with Iran and to use sanctions relief as a leverage point are most often labeled as appeasers for the Iranians. It is increasingly difficult to find a coherent and principled discussion of U.S. policy towards Iran in Congress. Why, then, should these people be handling a matter as critical as nuclear proliferation?

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The Senate’s Dangerous Games

This week, an A-list of former U.S. diplomats and national security experts signed and delivered a publicly-available letter to Senator Robert Menendez, the author of the Nuclear Weapon Free Iran Act of 2013, asking him to withdraw his new sanctions bill and to allow negotiations to proceed. The letter warned that the Act would force Iran to withdraw from the negotiations and ‘could lead to an unraveling of the sanctions regime,’ as international partners accuse the U.S. of bad-faith in the nuclear dispute and end the close cooperation they have so far provided the United States.

This repeated the warnings of the White House and involved diplomats, all of which have, in conference with the Congress, noted that a new sanctions bill would ‘threaten [international] unity’ in dealing with Iran’s nuclear program and provide ‘Iranians a public excuse to flout the [Joint Plan of Action reached in Geneva, November 24].’ To reporters, the White House has called the bill ‘damaging and destructive to the diplomatic efforts’, and the U.S.’s chief negotiator with Iran, Wendy Sherman, has repeatedly asked for a ‘pause’ in any new legislation to allow the negotiations to continue on their (so far) fruitful course.

Furthermore, in a letter dated December 18, 10 Senate committee chairs requested Senate Majority Leader Harry Reid to consult with them prior to considering any legislation on the floor. Interestingly, the letter quoted a December 10, 2013 intelligence assessment, holding that ‘new sanctions would undermine the prospects for a successful comprehensive nuclear agreement with Iran.’ That provided credence to the claims of the White House and U.S. diplomats that the U.S. intelligence community was in full agreement with its concerns that any new sanctions legislation would quickly bring to an end any opportunity for a nuclear agreement with Iran.

It seems clear, then, that there is unanimity in Washington, at least among the White House, the U.S. diplomatic corps, and the U.S. intelligence community. All believe that the Nuclear Weapon Free Iran Act of 2013 would stamp out the possibility for resolving the nuclear dispute with Iran in a peaceful way. The sole dissents to this view exist in the Congress, where 53 Senators have signed on as co-sponsors to the new sanctions bill and have chosen to ignore the advice of their diplomats and their intelligence agencies to attend to that infamous U.S. proclivity for overreach. Their game is a dangerous one, and despite their frantic cries when the White House accuses them of wanting war, it is proving increasingly difficult to see what other interest is being served by their consistent actions aimed at hampering a diplomatic settlement.

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