State Department Spokesperson John Kirby Addresses ISIS Report on JCPOA Exemptions for Iran (Excerpts)

September 1, 2016


QUESTION: I think there’s various questions regarding American citizens, but I guess we’ll get to them later. I wanted to ask first about this good ISIS report, the Institute for Science and International Security, specifically on various changes that were made to the JCPOA by the joint commission. I gather you’ve had a chance to read it. Can I just ask you, one, has there been any loosening to the low-enriched uranium stockpile rule, as written down in the agreement?


QUESTION: No. So 300 kilograms, that’s defined in the agreement, remains the stockpile limit for Iran and they have never crossed that?

MR KIRBY: It does, and yes, they’ve never crossed that.

QUESTION: So do you agree with the report – and also I think there was a media report by Reuters – that these amount to secret agreements that have changed the nature of the JCPOA in any way?

MR KIRBY: No, we wouldn’t agree with that characterization at all. I think as many of you know – and it’s written right in the JCPOA, which established the joint commission – that the work of the joint commission would be confidential unless the joint commission decided otherwise. It’s right there in the JCPOA itself. I mean, it’s designed that way.

QUESTION: Do you consider – and then I’ll let my colleague ask some follow-up questions. But the LEU that’s in the system, as it were – do you not count that as part of the stockpile?

MR KIRBY: Well, what I would tell you is that, according to the JCPOA, Iran is limited to a stockpile of 300 kilograms of low-enriched uranium that is usable for the making of fissile material or usable to be able to obtain a nuclear weapon. And that limit hasn’t changed; they’ve not exceeded that limit. And beyond that, I’m just not able to get into additional detail.

QUESTION: Why don’t we step back a second and just ask what is your broad reaction to this report?

MR KIRBY: Well, we’ve read the report. I’ve looked at it myself. What I can tell you is that Iran’s nuclear commitments under the JCPOA have not changed. There’s been no moving of the goal post, as it were. The joint commission has always been intended to address implementation issues when they arise. That’s the whole purpose for it. And as I said, the work of the joint commission, as stipulated in the agreement itself, is to be confidential. I also would assert that the joint commission has not and will not loosen any of the commitments and has not provided any exceptions that would allow Iran to retain or process material in excess of its JCPOA limits that it could use in a breakout scenario.

And as I think I answered in Brad’s questions, the notion, which I’ve seen in the report mentioned several times – the beginning, middle, and end – that there was some untowardness here about the confidentiality of the work of the joint commission is not founded. And any suggestion to the contrary is just false, and you can read it right in the JCPOA.

QUESTION: Putting aside whether it would require an exemption from the English language to use an alleged word like untowardness, the question it seems to me is if the work of the joint commission is by definition confidential, how then is appropriate oversight over the joint commission ever to be exercised by the U.S. Congress or any other interested party?

MR KIRBY: Well, the Congress has been fully briefed on the JCPOA and has been – and we have maintained regular contact with members of Congress about the work of the joint commission.

QUESTION: In other words, to put it plainly, the joint commission has not provided any exemptions for Iran’s requirements under the JCPOA or anything that could be construed as an exemption. That’s your position?

MR KIRBY: Well, okay, you don’t like the way I used untoward. I’m not going to quibble with you on what construes or who construes what. What I can tell you is, James, as I said in the past – and I’ll be happy to repeat it – the joint commission has not and will not loosen those commitments. There’s been no loosening of the commitments that Iran is responsible for under the JCPOA. And it has not provided any exceptions that would allow Iran to retain or process material in excess of its JCPOA limits that it could use in a breakout scenario.

And I will just remind you, if you will allow me, that as you and I sit here today, that breakout timeline is about a year long. And before the JCPOA we were talking about a few months.

QUESTION: Have there been any briefings to members of Congress on the work of the joint commission?

MR KIRBY: Yes. As I said, the Congress has been kept informed.

QUESTION: You said on the JCPOA.

MR KIRBY: And we have briefed – no, I did not. I said both. But I’ll say it again: The Administration has briefed Congress frequently and comprehensively on all the joint commission’s work.

QUESTION: When was the last such briefing?

MR KIRBY: I’d have to get a date for you. I don’t know. And what – I would also add that for members of Congress that continue to have questions and may have questions in light of this report, we are more than happy to continue to conduct those kinds of briefings.

QUESTION: Last one from me. The White House issued a background statement to Fox News earlier today, referring to the allegations in this report that have to do with Iran’s production of heavy water. And that statement noted that Iran had swiftly addressed its overproduction of heavy water to the satisfaction of the IAEA. When was Iran not in compliance with its overproduction of heavy water?

MR KIRBY: I think I addressed this back in March. And I don’t know the exact date, but we were very open about it at the time – in fact, I know I was from the podium – that they had exceeded the – I think it’s a 130-ton limit. The IAEA caught it, and Iran corrected it and they corrected it fairly expeditiously.

QUESTION: I don’t want to play semantics with you, but I am concerned that I ask you a question of whether or not the joint commission has enacted any exemptions for Iran or anything that a reasonable observer would conclude to be an exemption, and by way of answering you talk about the loosening of commitments. And so I just wonder if you can address my question on its own terms.

MR KIRBY: I’m not going to talk about the specific work of the joint commission, James. I’m not going to do that. And I can’t do that, because, by the agreement itself, it’s confidential. So I’m not going to get into that.

QUESTION: So what permits you to --

MR KIRBY: Wait – now wait a second. I understand where you’re going here. I’m not going to talk about that. But what I can assure you and everyone else is that there has been no loosening of Iran’s commitments and there have been no exceptions given that would allow them to exceed the limits, whether it’s the limits of LEU or the limits of heavy water, that would allow them to have a useable amount of material in excess of what they’re supposed to have towards the production of fissile material.

QUESTION: So if you can say there’s been no loosening and there’s been no exceptions, what is it that prevents you from using the word “exemptions” – there have been no exemptions granted?

MR KIRBY: The joint commission has provided guidance on implementing the JCPOA. That’s what it’s for. It’s designed to do that. None of that guidance allows Iran to have more than 300 kilograms of LEU that it can use to enrich further. And as the IAEA has said themselves, Iran is implementing on that commitment.

QUESTION: Do you regard David Isis as a reputable figure --

MR KIRBY: David Albright?

QUESTION: Excuse me, David Albright of the good ISIS. Do you regard David Albright as a reputable figure in this kind of analysis?

MR KIRBY: I’m not going to characterize the – look, Mr. Albright can speak for his own work. We certainly respect his intelligence and respect the position that he holds. We certainly respect the work of I-S-I-S. This isn’t about – I’m not going to get into characterizing one way or another. But --

QUESTION: But he’s not some partisan foe of the Iran deal, correct?

MR KIRBY: I don’t know. You’d have to ask Mr. Albright what his views are about the Iran deal. I’m not going to characterize his own proclivities with respect to the deal.

QUESTION: Kirby, I’d just like to return to the exception/exemption issue. As James points out, every time he asks you about exemptions and whether or not the joint commission has issued any exemptions, you say there’s no loosening and they did not provide any exceptions. Can you tell us – well, not can you tell us. Did they provide any exemptions?

MR KIRBY: What I can tell you is the work of the joint commission is confidential and I’m not privy to it, as I shouldn’t be. And even if I was, I wouldn’t be at liberty to discuss it. What I can assure you of is the same thing I assured your colleague of, is that there’s been no loosening of the commitments and Iran has not and will not under the JCPOA be allowed to exceed the limits that are spelled out in the JCPOA.

QUESTION: So just for the last time, you’re not going to address the question of whether or not exemptions were issued?

MR KIRBY: I’m not going to address the work of the joint commission because I cannot address the work of the joint commission.

QUESTION: Okay. Second --

QUESTION: You see, but you are. You’re standing there and telling us there was no loosening, there were no exceptions made. So you are very materially discussing their work in those sentences, aren’t you?

MR KIRBY: I’m telling you what is not happening, which is Iran is not being permitted under the JCPOA to exceed it, James. Look, I understand the wordplay here too, okay? And I get what you’re trying to do. But I’m not going to speak for the work of the joint commission and what – and the deliberations that they have worked through in order --

QUESTION: All I’m saying is --

MR KIRBY: -- to make sure that they are properly supervising Iran and the JCPOA.

QUESTION: But you expose yourself to this, John, because by telling us what is not happening, and here is X and Y is not happening with the work of the joint commission, and then declining to do so on the specific question we keep asking you, in essence you appear to be confirming that that is what is being done.

MR KIRBY: I don’t think I’m exposing myself, James. I think I’m trying to do the best I can to answer your questions. And I think, again, if I might, what’s important here for people to remember is that Iran is meeting its commitments under the JCPOA. Iran, under this deal, cannot possess a nuclear weapon, cannot threaten its neighbors with nuclear bombs. And the breakout, as you and I talk here, is one year. Before this deal, it was a few months. Before this deal, Iran had 12,000 kilograms of low-enriched uranium. Now they have less than 300. That’s the most important fact to remember about all this, not whether or not I’m going to go into detail in describing for you and getting into a definition of exceptions versus exemptions of the joint commission’s work.

QUESTION: I’m just trying to get you to be consistent in your practices from the podium, John. I’m just trying to get you to be consistent in your practices.

MR KIRBY: I appreciate all the help I can.

QUESTION: One – one --

MR KIRBY: My mom also gives me great advice every day.

QUESTION: One more --

MR KIRBY: I’m telling you everything I can tell you, and I am not able to go into the work of the joint commission.

QUESTION: I’d like to go back to the issue of the 300 kilograms of low-enriched uranium. The JCPOA in point seven explicitly states that Iran, quote, “will keep its uranium stockpile under 300 kilograms of up to 3.67 percent enriched uranium hexafluoride, or the equivalent in other chemical forms.” The Albright report says that one of the exemptions that it says was in effect on implementation day allowed Iran to have more than 300 kilograms of low-enriched uranium in the following forms: low-level solid waste, low-level liquid waste --

MR KIRBY: I’ve seen the report.

QUESTION: -- sludge waste.

MR KIRBY: I’ve seen the report, Arshad.

QUESTION: Do you – can you state unequivocally that Iran never had more than 300 kilograms of LEU in uranium hexafluoride or any other chemical forms, including the three that I just named?

MR KIRBY: What I said – I’ll say it again: Iran is allowed under the JCPOA to have no more than 300 kilograms of LEU in its stockpile, material that it could enrich further if it were not for the JCPOA. And they are not above that limit, and they have not exceeded that limit of 300 kilograms of usable LEU which could be used to enrich further. They have not exceeded that limit.

QUESTION: But what the agreement says – and I just read it – it doesn’t say “usable.” The word “usable” ain’t in there. It’s point seven, it’s explicit in the agreement, it’s in black and white, and it doesn’t say “usable.” It says “will keep its uranium stockpile under 300 kilograms of up to 3.67 enriched uranium hexafluoride (UF6), or the equivalent in other chemical forms.”


QUESTION: No word “usable” in there. So that’s the question: Did it ever go above it?

MR KIRBY: I answered the question, Arshad. Iran --

QUESTION: You said “usable”; you didn’t say --

MR KIRBY: Iran --

QUESTION: That – which caveats it. It’s quite possible they can go above 300 if it’s not in usable form.

MR KIRBY: Iran has not exceeded its stockpile limit of 300 kilograms of LEU.

QUESTION: Thank you. In any form?

MR KIRBY: Do you want me to put the punctuation point on the end of that?


MR KIRBY: Oh, you did. Okay.

QUESTION: (Laughter.) You asked if I did, and I told you I did.

QUESTION: So that’s in any form, including those forms that Arshad spelled out?

MR KIRBY: Gents, I’ve answered this question. I’ve answered the question.


MR KIRBY: They have not exceeded the stockpile limit set – stipulated under the JCPOA of 300 kilograms of LEU.

QUESTION: And just to --

QUESTION: In any form? As listed --

MR KIRBY: I answered the question.


QUESTION: When you say the JCPOA, you mean the original text of it, not anything that’s been adumbrated or modified later, correct?

MR KIRBY: Look, I don’t know that there’s been any modifications later. The joint commission’s work goes on as supervisory in terms of ensuring implementation. But the text hasn’t changed.

QUESTION: The guidance that you referenced the joint commission providing on implementation, is that guidance conceivably of a nature that could be decisive in how the deal gets implemented in one respect or another? Could it conceivably change the actual understanding of the original deal?

MR KIRBY: The joint commission’s job is not to change the text of the agreement. You can’t do that. It is designed to regularly consult and provide guidance on implementation, but it can’t change – it does not change the agreement itself.

QUESTION: Do you know, for --

QUESTION: John, can I have one?

QUESTION: Do you know, for example --

MR KIRBY: I don’t know if you can, actually. I’m not sure.

QUESTION: All right. Go ahead.

QUESTION: Yeah, I just want to – just to clarify. You said that Iran has not exceeded its limits on the JPOA, but are you saying at no time have they exceeded it or you’re saying that they’re not exceeding it currently?

MR KIRBY: No. I think Brad asked this. Since implementation day, they have not exceeded the 300-kilogram limit of LEU. Now, as I said, we did note and we were open about the fact that for a short period of time, they exceeded the quantity of heavy water that they were allowed to have, and they corrected that. The IAEA caught it, addressed it with them, and they got it back to within limits. But as far as LEU is concerned, since implementation day they have been in compliance.

QUESTION: Can I just ask, this term you’re using about usable for fissile material creation – what substances – do you have, like, a codification of what forms are usable? Is this a – this was not agreed to in the JCPOA. Where is this determination being made?

MR KIRBY: I’m not a nuclear expert, Brad.

QUESTION: Well, you said it, not me. I mean, so --

MR KIRBY: I know I said it --

QUESTION: So where is it coming from?

MR KIRBY: -- but that doesn’t make me an expert on nuclear energy. There are obviously forms of the material that are – cannot be further enriched and made into fissile material for a bomb. That’s – as I understand it, that’s a fact.

QUESTION: And the U.S. and Iran are in agreement on these as well as the entire P5+1?

MR KIRBY: I believe that this makes it very clear that the P5+1 is in agreement on all the commitments that Iran must make.

QUESTION: On the four – because you’re using this term that’s not in the document. I’m just trying to figure out how we can actually check that or understand what it means. If you say some things are usable but some things aren’t, but I don’t know which are which, you don’t – you’re supposed to – that’s not spelled out in the document. That seems to be a new idea here.

MR KIRBY: It’s not a new idea. I don’t – look, I don’t know.

QUESTION: Okay, then show me where it is if it’s not a new – no.

MR KIRBY: I don’t. Brad, Brad, no, I’m not going to go through this with you at the press conference here on chapter and verse in here.

QUESTION: You don’t have to. He already did.

MR KIRBY: The point is – the point is that there is a limit of 300 kilograms of low-enriched uranium that can be further enriched for fissile material to produce a nuclear bomb. That’s the limit that they’re allowed to possess.

QUESTION: Well, that’s what --

MR KIRBY: They are – they have not --

QUESTION: That’s not the limit. He just read it out.

MR KIRBY: They have --

QUESTION: It doesn’t say that. You’ve just changed it again. It does not say that in the agreement. This sentence you just said does not exist in the JCPOA. You’ve just invented it.

MR KIRBY: I don’t know how to address it any further, Brad.

QUESTION: Well, think about it after the briefing.

QUESTION: For the joint commission --

MR KIRBY: No, I’m not going to think about it, Brad. I’ve answered the question as best as I can.

QUESTION: Well, you should.

QUESTION: For the joint commission to issue its guidance, do the various members of that commission have to agree unanimously on that guidance?

MR KIRBY: The work of the joint commission is very collaborative and the deliberations are obviously shared with all the members, and it is a – their oversight duties are done as acts of consensus. I mean, they deliberate and talk and come to conclusions amongst themselves.

QUESTION: My concern about the guidance, if I can make a rough analogy, is that no judge here in the United States after the fact can change the text of a law that is brought before the judge for interpretation, but the way the judge interprets the law can have a very significant impact on how that law is administered. Correct?

MR KIRBY: I don’t know. I defer to your superior knowledge of the law.

QUESTION: And so perhaps the joint commission can’t change the text of the agreement, but the guidance they issue can potentially have a very serious impact on how the implementation is actually administered. Correct?

MR KIRBY: It’s a complicated agreement. I think it would be – it would have been foolhardy to not set up a process by which the P5+1 could implement this very complicated agreement. There’s a lot of good sense in having a commission to supervise and provide guidance on implementation. But that doesn’t change the fact that they can’t change the agreement itself and the tenets of it.

QUESTION: John, just a big-picture kind of question on this. I mean, part of the criticism here is that perhaps you feel as if Iran has adhered to the spirit of the agreement, but the question is: Are they adhering to the letter of the agreement in all its points? And that some critics are charging that, even if you feel that they’re adhering – that it’s enough for them to adhere to the spirit of the agreement and you’re willing to cut them some slack on a few kilometers here or a few kilometers there to make sure that they’re adhering in general to the agreement.

MR KIRBY: There’s been no cutting of slack, Elise, and the IAEA has certified – I’m aware of at least once, probably more than once – that Iran has been in full compliance of their JCPOA commitments. I don’t believe they refer to it as the spirit of their commitments. They talk very explicitly about Iran being in compliance with its commitments, and the Secretary himself has certified that to the Congress.

QUESTION: So this issue of what exactly constitutes the low-enriched uranium that is – that they’re not allowed to – that they’re only allowed to keep up to 300 kilograms of, is kind of important because there have been – through this process of negotiating this deal there was issues – there were these issues of Iran being able to change – to convert this material to other – to other forms, but that that conversion process can be reversed. So when you – when you, I guess, caveat or describe it as saying 300 kilograms of material that can be further enriched, it – I think we’re all trying to understand whether there’s other forms of LEU that they can – of low-enriched uranium that they can keep in some other kind of form, that – that would be allowed.

MR KIRBY: I’m certainly not enough of a nuclear power energy expert to address that specific question. What I can tell you is that the – the JCPOA has set the limit for low-enriched uranium to 300 kilograms and that since implementation day, Iran has been in compliance with holding to that limit. And as I said, before the deal they had 12,000, now they’ve got less than 300. They went from having a few months break out time to a bomb to now having about a year. And --

QUESTION: Would they have --

MR KIRBY: And oh, by the way – oh, by the way – and this is something that we’re, I think forgetting: that as a result of this, there is now in place the most stringent, strident inspection regimen ever put in place in a deal such as this on a nation that has nuclear power capabilities. And the IAEA themselves have said that they’re comfortable with the access that they have, the information that they have to make their certifications, and thus far, they have made clear that Iran is in compliance. Yeah.

QUESTION: Change of subject.


QUESTION: Do you have --

QUESTION: John? Same topic?

QUESTION: Do you have anything on the Secretary’s --

MR KIRBY: I don’t think we’re done with this right now.


MR KIRBY: Go ahead.

QUESTION: Julian Borger from The Guardian. What about these 19 extra hot cells that were bigger than the limits prescribed by the JCPOA? The significance being that you can separate plutonium in these if you line up these hot cells together.

MR KIRBY: Yeah. Again, not an expert here, but regarding the hot cells and without getting into specific discussions, which I am not able to do, the JCPOA specifically permits the possibility of larger hot sales – hot cells, excuse me – approved by the joint commission. And I can quote right here from the JCPOA: “Iran will develop, acquire, build, or operate hot cells with dimensions beyond 6 cubic meters in volume and specifications set out in Annex I of the Additional Protocol only after approval by the joint commission.” So if the joint commission approves larger hot cells, it’s – it’s possible for them to have larger hot cells.

QUESTION: So that figure is correct? There are 19?

MR KIRBY: I cannot speak to – as I said at the top of my answer to you, I’m not going to speak to specifics here. I can’t.

QUESTION: And on the question of the joint commission’s work being --

MR KIRBY: About the what?

QUESTION: On the question of confidentiality. Can you explain the rationale for that confidentiality, other than it’s in the agreement? In the – one of the virtues of JCPOA was it was a public document. Is there a rationale why these – this interpretation should be confidential?

MR KIRBY: I’d say in general diplomatic discussions are confidential in nature unless all the parties agree otherwise.

QUESTION: One last question, maybe taking this from a different approach. Is it the position of the department that Iran can only have been judged to be in compliance by implementation day by virtue of guidance that was, in fact, issued by the joint commission?

MR KIRBY: I – again, you’re asking me about the deliberative discussions that I’m not privy to and I couldn’t answer. What I could tell you is that since implementation day, they’ve been in compliance, with the exception of that one time when there was an excess of heavy water.

All right, are we done with this?

QUESTION: Can I – one follow-up on this? In – I think it was Annex IV, not Annex I, where it describes in detail how it is that the joint commission can permit larger hot cells if it wishes. It also says that the joint – and it describes that the joint commission’s deliberations and decisions are confidential, but it says that they can be made public. Why didn’t the joint commission – and I’m fully acknowledging that under the agreement it has the right to keep things confidential. Why not make its decisions public so that the public at large and the nuclear specialist community can understand precisely what is being decided and agreed to and permitted here? Why not make those things public?

MR KIRBY: Well, as I said, in diplomatic discussions, particularly multilateral diplomatic discussions, that they’re confidential in nature unless all parties agree otherwise. And the joint commission continues to work under the --

QUESTION: (Off-mike.)

MR KIRBY: -- work under the practice that these will be – that these deliberations, these discussions, their work will be maintained confidential.

QUESTION: Does the United States Government, as a member of the joint commission, believe that all such things should be confidential, all of its deliberations?

MR KIRBY: I’m not going to speak – I’m not going to speak for specific --

QUESTION: I’m not asking a specific – I’m just saying, do you think their deliberations should be confidential or not? I’m not asking you what the – what it is.

MR KIRBY: We respect the – we respect the consensus view of the joint commission, of which we’re a member, and that consensus view thus far has been to keep their work confidential.

QUESTION: So consensus – “consensus,” as you know, means unanimous in diplomatic terms. Every member of the joint commission has opposed making public its work?

MR KIRBY: I’m not going to – I don’t know the answer --

QUESTION: You just said “consensus,” that was a consensus position. The word “consensus” means everybody agrees to it. Does that – so I want to make sure you’re saying something accurate here that every member of the joint commission has decided it’s better to keep its deliberations and decisions secret, or if you’re using the word “consensus” in some other non-precise way.

MR KIRBY: Arshad, don’t insult me and don’t stand up there and try to lecture me on English, okay? Let’s get beyond that. Let’s be grownups here. In diplomatic discussions, particularly multilateral ones, as I said, those discussions are confidential unless all parties agree otherwise. So the joint commission – and I don’t know who voted for what, and frankly, it’s irrelevant. The join commission has decided to keep their work confidential as they are expected to do, unless they choose otherwise, in accordance with the JCPOA. That’s where we are. And I understand that you may not appreciate that and may not like that, but that’s the decision of the joint commission. And the information has been shared and briefed to members of Congress, as it has been shared and briefed to members of other legislative bodies and other members of the P5+1.

QUESTION: In classified setting, correct?

MR KIRBY: As far as I know, yes.

QUESTION: Yeah. So it’s not a consensus decision, it’s not a unanimous decision. You can’t say it was a unanimous decision?

MR KIRBY: I do not know.


MR KIRBY: I do not know.

QUESTION: Fine, thanks.

MR KIRBY: I can tell you that, again, they’re confidential unless all other – unless all parties agree otherwise.

Are we off this?