An Iranian nuclear arsenal could make the world more dangerous. That is why decisions regarding Iran’s nuclear program are among the most important of our time. Here, Harvard Law Professor Emeritus Alan Dershowitz argues that the negotiations that led to this bad deal were deeply flawed. Evaluating the pros and cons of the Iran nuclear agreement, he asks the fundamental questions about what the deal means, how it will be implemented, and whether we now have the capacity to stop Iran from developing nuclear weapons.
As a lawyer with decades of negotiation experience, and a regular commentator on Middle Eastern politics, Dershowitz explains how we could have gotten a better deal, and offers a unique analysis of the Obama administration’s negotiations with Iran and the implications of a deal for Israel, the Middle East, and the global community. It is a call for both intelligent reflection and determined action to stop Iran from getting the bomb.
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Part I: Maintaining Military Options
I have always believed, and still believe, that the only way to get a tyrannical and aggressive regime like Iran to end its nuclear weapons program is by the credible threat of military action coupled with crippling economic pressure. The difference between these two threats is that the United States alone is capable of conveying a military threat, whereas it takes collective action by the world's most powerful economies — including China, Russia, and Western Europe — to threaten to produce and maintain a crippling economic sanctions regime.
For that reason, the United States should have announced at the beginning of the nuclear negotiations a bright red line: the United States will never allow Iran to develop a nuclear weapons program. That should have been the constant, about which Iran had no say and about which there would be no negotiations. The variables would be how we achieve that constant: whether through negotiations, sanctions or — as a last resort — surgical military attack, repeated when and if Iran were to start its nuclear program again. Economic suffering alone would never drive a fundamentalist regime into submission. But crippling sanctions, coupled with the realization that we would never allow them to develop nuclear weapons, would have put us in a strong position from which to negotiate. Unilaterally giving up this advantage weakened our bargaining position considerably.
As we shall see in the chapters that come, I have taken this position from the beginning. And so did the Obama administration — at least in its early rhetoric. As we shall also see, the credibility of that option diminished over time, thus weakening our bargaining position.
The first part of this book sets out the legal, moral, military, political, and pragmatic case for maintaining a strong military option — coupled with the hope and desire that it would never have to be deployed.
In 2006, I wrote two articles on the military option against the Iranian nuclear weapons program. The first, which was published as a chapter in an academic book entitled Preemption: A Knife that Cuts Both Ways, set out the options available to stop Iran's nuclear weapons program as well as the legal and moral considerations relevant to a possible preemptive or preventive military attack against Iran's nuclear weapons program. The second, which appeared in the British magazine The Spectator, dealt with the practical limitations on any military actions.
A. The Options for Preventing Iran from Developing Nuclear Weapons
This chapter consists of a case study of the options regarding Iran's nuclear program. No reasonable person can doubt that the Iranian government wants to develop a nuclear weapon capacity. Despite its claim that it is seeking only to expand its energy sources, the evidence to the contrary is significant, if not overwhelming. First, Iran has enormous oil reserves and access to other nonnuclear sources of energy. Second, the material Iran is trying to import is of the type necessary for the construction of nuclear weapons, not merely nuclear energy. Third, several prominent Iranian politicians have acknowledged the military goals of the nuclear program. President Mohammad Khatami has threatened to use Iran's missiles to destroy Jewish and Christian civilization!
"Our missiles are now ready to strike at their civilization, and as soon as the instructions arrive from the leader, Ali Khamenei, we will launch our missiles at their cities and installations."
Khamenei has in turn urged his military to "have two [nuclear] bombs ready to go in January  or you are not Muslims." On 21 September 2004 the Iranian military paraded its Shahab-3 missile through the streets of Tehran. These missiles, which can reach Israeli and Iraqi cities, were draped with banners that read "Crush America" and "Wipe Israel Off the Map." In late October 2004, shouts of "Death to America" followed the rejection by the Iranian "legislature" of a proposal to assure peaceful use of nuclear technology. And in May of 2005, it was disclosed that Iran had converted thirty-seven tons of uranium into gas, which "could theoretically yield more than 200 pounds of weapons-grade uranium, enough to make five crude nuclear weapons." Several days later, Prime Minister Tony Blair of Britain warned that he was prepared to seek sanctions from the UN Security Council if Iran proceeded with plans to resume uranium reprocessing. The foreign ministers of Britain, France, and Germany wrote a sharply worded letter warning that any attempt to restart Iran's nuclear program "would bring the negotiating process to an end." But Iran responded defiantly that it "will definitely resume a part of its enrichment activities in the near future."
This apocalyptic attitude, combined with an expectation of heavenly reward for killing millions of Jews and Americans, makes the effectiveness of the usual deterrent approach to nuclear threat somewhat less promising than if directed against a more secular regime. Some Muslim extremists — whether they be conventional suicide bombers or nuclear suicide bombers — will not be deterred by the threat of mere death, and certainly not by sanctions. They welcome martyrdom as a necessary prelude to a paradise in which they will be rewarded for their martyrdom. This does not mean, of course, that a credible threat of material or economic damage will necessarily be ignored by all of those in power. There are pragmatists and materialists even among the most fundamentalist zealots. Moreover, there are genuine moderates and reformers both inside and outside the Iranian government, and their potential impact on Iranian nuclear policy cannot be overlooked. But in any worst-case scenario — a scenario that also cannot be ignored especially by the potentially targeted state — the threatening statements made by those in power must be given considerable weight.
Estimates vary as to the timing of Iran's independent development of deliverable nuclear weapons. Some believe it is as far as three to five years away — if it does not receive outside help. As one retired CIA official has put it:
The big wild card for us is that you don't know who is capable of filling in the missing parts for them ... North Korea? Pakistan? We don't know what parts are missing."
What is clear is that "its work on a missile-delivery system is far more advanced" and that it has plans to arm its missiles with nuclear, chemical, and/or biological warheads capable of mass destruction and murder of millions of civilians. Whether there are those in positions of authority who are actually contemplating the suicidal deployment of such weapons is, of course, far less clear, though the events of 9/11 made nothing unthinkable.
No democracy can afford to wait until such a threat against its civilian population is imminent. Both Israel and the United States should have the right, under international law, to protect their civilians and soldiers from a threatened nuclear holocaust, and that right must include — if that is the only realistic option — preemptive military action of the sort taken by Israel against the Iraqi nuclear reactor at Osirak in 1981, especially if such action can again be taken without an unreasonable number of civilian casualties.
Although the Security Council of the UN unanimously voted to condemn Israel's attack on the Iraqi reactor, [former] Secretary of State Condoleezza Rice has said that history had vindicated the Israeli strike by preventing Saddam Hussein from gaining access to nuclear weapons, but she declined to say whether the United States would support an Osirak-type attack by Israel against Iranian nuclear facilities. No two situations are ever exactly the same, and the considerations that must go into any military decision will depend on many subtle factors. Secretary Rice did say, however, that the United States and its allies "cannot allow the Iranians to develop a nuclear weapon." That appears to be the constant in the equation, with the variable being the means that might appropriately be employed to assure that neither the United States nor its allies will have to confront an Iran with a nuclear weapon capability (as we may already be facing a North Korea with such capability).
There have been periodic reports suggesting that the United States may be selling bunker-busting bombs to Israel, weapons that could be used to destroy the underground nuclear facilities being used by Iran to protect its nuclear weapons work-in-progress. Whether this information was leaked in order to bolster the deterrence threat or to enhance Israel's actual capacity to destroy the Iranian nuclear facilities is unknown.
Despite statements about the propriety of Israel's attack against the Iraqi nuclear reactor and the unacceptability of Iran developing a nuclear bomb, the American policy with regard to the Iranian nuclear program remains unclear. The former under secretary of defense for policy has said that "I don't think that anyone should be ruling in or out anything while we are conducting diplomacy," but the president [Bush] has not spoken directly about the military issue. To the contrary, he has said that "diplomacy must be the first choice, and always the first choice of an administration trying to solve an issue of ... nuclear armament. And we'll continue to press on diplomacy." That is certainly the correct view in any situation in which there is a heavy burden on those contemplating a military option. Former president Bill Clinton commended President Bush for keeping "the military option on the table, but not pushing it too far." But the question remains: If all diplomatic options fail, as they did with regard to Iraq in 1981, must a democratic nation committed to the rule of law as well as to its own survival and the protection of its citizens wait for help from an unfriendly Security Council (some of whose members have supplied Iran with the materials it may now be using to build nuclear weapons), or may it — as a last resort — take preventive military action, as Israel did in 1981?
Today most reasonable people look to Israel's surgical attack against the Osirak nuclear reactor as the paradigm of proportional preemption, despite the Security Council's condemnation. (Many forget that Iran actually attacked the Iraqi reactor before Israel did, but failed to destroy it; there was no UN condemnation of that attack.) If the Iranian nuclear facilities were all located in one place, away from any civilian population center, it would be moral (and under any reasonable regime of international law, legal) for Israel or the United States to destroy it if all nonmilitary options failed. But the Iranian militants have learned from the Iraqi experience and, according to intelligence reports, have deliberately spread their nuclear facilities around the country, including in or near heavily populated areas. This could force Israel or the US into a terrible choice: either allow Iran to complete its production of nuclear bombs aimed at its own civilian population centers and other targets, or destroy the facilities despite the inevitability of Iranian civilian casualties. The longer they wait, the greater the risks to civilians, especially if they wait until an attack on the reactors might spread radiation.
The laws of war prohibit the bombing of civilian population centers (even in retaliation for or deterrence of attacks on cities) but they permit the bombing of military targets, including nuclear facilities during wartime. By deliberately placing nuclear facilities in the midst of civilian population centers, the Iranian government has made the decision to expose its civilians to attacks, and it must assume all responsibility for any casualties caused by such attacks. In the context of domestic law, when a criminal uses an innocent bystander as a "shield" against the police, and the police, in a reasonable effort to apprehend the criminal, unintentionally shoot and kill the innocent shield, it is the criminal who is guilty of murder, even though the policeman fired the fatal shot. The same rule of culpability should apply in the military context. Israel, the United States, and other democracies locate their military facilities away from population centers, precisely in order to minimize danger to their civilians. Iran does precisely the opposite, because its leaders realize that decent democracies would hesitate to bomb a nuclear facility located in an urban center. They use their own civilians as a deterrent against a preventive attack.
Israel (with the help of the United States) should try everything short of military action first — diplomacy, threats, bribery, sabotage, targeted killings of individuals essential to the Iranian nuclear program, and other covert actions. But if all else fails, Israel (or the United States) must have the option of taking out the Iranian nuclear threat before it is capable of the genocide for which its leaders assert it is being built. The Chief of Staff of the Israeli Defense Forces put it this way:
"We believe there is a chance of success when talking about the elimination of the Iranian capabilities of weapons of mass destruction, first of all using political and economic resolutions, from my point of view and my recommendation, this has to be used first of all. If not we have to be prepared, and I am talking about the Western community, to use other options in order to eliminate the Iranian capabilities."
It is obvious therefore that the Israeli air force has been preparing for the possibility of employing a military option if that becomes the only way to stop Iran from developing a nuclear arsenal.
In early 2005, Israel's foreign minister, Silvan Shalom, reiterated the point that if European diplomatic efforts fail, "Israel cannot live with Iran having a nuclear bomb." Again, that appears to be the constant, with the variables dependent on the success of international diplomacy, sanctions, or other forms of intervention. It is possible, of course, that neither Israel nor the United States has any current fixed intention to attack preventively Iran's nuclear facilities, but are issuing their tough statements as part of an overall deterrent strategy.
According to an article in the 24 January 2005 issue of the New Yorker by Seymour Hersh, the US is preparing for the possibility of a preemptive military attack against Iran's nuclear weapons program:
The Administration has been conducting secret reconnaissance missions inside Iran at least since last summer. Much of the focus is on the accumulation of intelligence and targeting information on Iranian nuclear, chemical, and missile sites, both declared and suspected. The goal is to identify and isolate three dozen, and perhaps more, such targets that could be destroyed by precision strikes and short-term commando raids. "The civilians in the Pentagon want to go into Iran and destroy as much of the military infrastructure as possible," the government consultant with close ties to the Pentagon told me.
According to this report, the United States has been conferring with Israel about a possible military preemption:
There has also been close, and largely unacknowledged, cooperation with Israel.... (After Osirak, Iran situated many of its nuclear sites in remote areas of the east, in an attempt to keep them out of striking range of other countries, especially Israel. Distance no longer lends such protection, however: Israel has acquired three submarines capable of launching cruise missiles and has equipped some of its aircraft with additional fuel tanks, putting Israeli F-16I fighters within the range of most Iranian targets.)
They believe that about three-quarters of the potential targets can be destroyed from the air, and a quarter are too close to population centers, or buried too deep, to be targeted....
But there are some who doubt the benefits of a military approach:
... Shahram Chubin, an Iranian scholar who is the director of research at the Geneva Centre for Security Policy, told me, "It's a fantasy to think that there's a good American or Israeli military option in Iran." He went on, "The Israeli view is that this is an international problem. 'You do it,' they say to the West. 'Otherwise, our Air Force will take care of it.'" ... But the situation now is both more complex and more dangerous [than it was in Iraq in 1981], Chubin said. The Osirak bombing "drove the Iranian nuclear weapons program underground, to hardened, dispersed sites," he said. "... The US and Israel would not be certain whether all the sites had been hit, or how quickly they'd be rebuilt. Meanwhile, they'd be waiting for an Iranian counterattack that could be military or terrorist or diplomatic. Iran has long-range missiles and ties to Hezbollah, which has drones — you can't begin to think of what they'd do in response."(Continues…)
Excerpted from "The Case Against the Iran Deal"
Copyright © 2015 Alan Dershowitz.
Excerpted by permission of RosettaBooks.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
Table of Contents
Part I: Maintaining Military Options,
A. The Options for Preventing Iran from Developing Nuclear Weapons,
B. The Difficulties of Deploying Military Actions against Iran,
Part II: President Obama's First Term Approach to Iran,
A. Linking Iran to Palestinian Statehood: A Mistake,
B. Obama's Legacy and the Iranian Bomb: Neville Chamberlain was remembered for appeasing Germany, not his progressive social programs,
C. The Obama Administration's Conflicting Messages on Iran,
D. There Will Never Be Peace if Iran Gets the Bomb,
E. Why I Worry about Obama's Policy Toward Israel's Security,
F. The Disclosure of Arab Views on Iran's Nuclear Plans Has Made a Military Strike More Likely,
G. Israel and the US: Behind the Tension — Is Friendship a One-Way Street?,
H. Israel Now Has the Right to Attack Iran's Nuclear Reactors,
I. WikiLeaks Contradicts Obama Administration on Iran,
K. Obama's Failing Diplomacy in the Middle East,
L. Warning Iran Against Hitting "Soft" American Targets,
Part III: President Obama's Second Election Promises Regarding Iran,
A. President Obama Turns a Corner on Iran,
B. Assessing President Obama's Trip,
C. J Street Undercuts Obama Policy on Iran,
D. President Obama Can Stop Iran,
E. The Message Obama Should Have Sent,
Part IV: President Obama's Second Term Policy toward Iran,
A. President's Nomination of Hagel May Encourage Iran's Nuclear Ambitions,
B. Obama: Get Approval from Congress on Iran Now,
C. How the New York Times Distorted Netanyahu's UN Speech,
D. Oppose the Deal on Iran,
E. Congress Must Keep the Military Option on the Table,
F. A Discussion with the Pilot Who Bombed the Iraqi Nuclear Reactor,
G. The Education of a Wartime President,
H. Why Is the Obama Administration Provoking Israel?,
I. Will the Newly Elected Congress Push Obama into Being Tougher on Iran's Nuclear Weapons Program?,
Part V: Closing the Deal,
A. Democrats Should Not Boycott Netanyahu,
B. The White House Must Respond to Netanyahu's Important New Proposal,
C. Supporters of the Deal Are Strengthening Iran's Negotiating Position,
D. President Is Not Commander in Chief of Foreign Policy,
E. Obama Is Neither Anti-Israel nor Anti-Semitic,
F. Does This Deal Prevent Iran from Developing a Nuclear Weapon?,
G. US Gave Away Better Options on Iran,
Appendix 1: Timeline of the Iranian Nuclear Program and Ensuing Negotiations,
Appendix 2: Joint Comprehensive Plan of Action,
About the Author,