The Real Problem with Iran’s Nuclear Exemptions is Secrecy

September 7, 2016

Publication Type: 

  • Policy Briefs


Simon Chin and Valerie Lincy

The controversy over the Iran nuclear agreement was reignited last week, after a new report revealed secret exemptions Iran received in order to meet the requirements of the agreement.  The response to the report has been predictably polarized, reflecting the entrenched political positions either for or against the deal.  While the specific exemptions allegedly received by Iran appear minor, the report did raise a serious concern: the secrecy surrounding oversight of the agreement.  These exemptions were granted by the multilateral Joint Commission overseeing the agreement—a body that operates confidentially.  This Commission has the authority to issue additional exemptions in the future that could materially affect Iran's nuclear weapon capability, and these decisions would remain hidden from the public.

The new report, published by the Institute for Science and International Security (ISIS), revealed that Iran was exempted from certain requirements of the nuclear agreement in order to expedite its implementation, which took place on January 16, 2016.  The exemptions fell into three categories, according to the Institute's report.  First, 3.5 percent low-enriched uranium (LEU) contained in low level nuclear waste was not counted toward the 300 kilogram cap on LEU set by the agreement.  Iran also was given a pass on the near 20 percent LEU contained in “lab contaminant,” which was judged “unrecoverable.”  Second, Iran received permission to continue operating 19 hot cells larger in size than permitted by the agreement.  Third, Iran has been allowed to bypass the 130 ton limit on heavy water by storing “large amounts” of heavy water in Oman that nevertheless remained under Iranian control.

On their own, these reported exemptions may appear minor.  LEU in waste or lab contaminant cannot be put through a centrifuge, and therefore the effect on Iran’s breakout time (how long it would take Iran to produce one bomb’s worth of nuclear fuel) is minimal, unless this material is recovered.  That recovery process would have to be reported to the IAEA.  Larger hot cells could separate plutonium if misused, but to do so would violate both Iran's nuclear safeguards agreement with the IAEA and the nuclear deal.  Still, the agreement specifically limits in size the hot cells Iran is permitted to operate for a good reason: their plutonium separation capability.  While the agreement authorizes the Joint Commission to review and approve the use of larger hot cells at Iran’s request, granting Iran an immediate exemption from this limit weakens the deal and could encourage Iran to seek additional such exemptions.  The heavy water issue is also troubling.  It suggests that Iran could use such overseas locations as a sanctuary for other nuclear materials in excess of the agreement's restrictions and potentially as a storage location for new purchases.  It also exposes a weakness in the deal that gives Iran a financial incentive to produce excess amounts of heavy water as long as it is exported.

But more than the specific exemptions, the real problem is the secrecy with which they were issued by the Joint Commission.  This Commission, which includes representatives from each of the P5+1 countries, Iran, and the European Union, is the agreement’s dispute resolution and oversight body.  As State Department spokesperson John Kirby took pains to repeat at a recent press conference, “the work of the Joint Commission, as stipulated in the agreement itself, is to be confidential.”  Mr. Kirby would not comment on any specific decisions of the Joint Commission and even pointedly refused to use the word “exemption.” 

The Commission’s secrecy is troubling because the agreement gives it the authority to review and approve exemption requests from Iran in a range of areas—exemptions that could materially affect Iran's nuclear capability by loosening the very restrictions that the agreement imposes.  Specifically, the Joint Commission can approve exemptions for research and development on uranium-metal based fuel; the operation of additional larger hot cells; mechanical testing of new types of centrifuges; the export of enrichment or enrichment-related equipment and technology; and the development, acquisition, or use for non-nuclear purposes of multi-point explosive detonators that could be used for a nuclear explosive device.  Iran could receive an exemption on any of these issues, and the public might never know.

Keeping the Commission’s decisions secret weakens the deal.  It erodes public confidence that the deal is maintaining strict limits on Iran’s nuclear capability.  It raises concern among already skeptical governments not party to the agreement or directly privy to Commission decisions.  And it provides fuel to the deal's political opponents, who want to see it fail. 

The best outcome would be to make Joint Commission's proceedings more transparent.  If exemptions granted by the Commission are reasonable, few would complain.  The agreement does allow the Commission to “adopt or modify” its procedures if all members agree, but the Commission is unlikely to do so in favor of greater transparency.  Iran, one of seven governments represented on the Commission, would surely object. 

Even if the United States cannot change the Commission’s rules, the administration should brief Congress on Commission decisions in a comprehensive way.  It is not clear that this is happening.  According to the State Department spokesman, “the Administration has briefed Congress frequently and comprehensively on all the Joint Commission’s work.”  But Senator Bob Menendez, a senior member of the Foreign Relations Committee, told Reuters: “I was not aware nor did I receive any briefing (on the exemptions).”  And Congressional sources have told us that members of the Senate Intelligence Committee have not been briefed about the exemptions either.

The Joint Commission’s secrecy, together with the reduced nuclear reporting by the IAEA since the deal was implemented, has resulted in less visibility into Iran’s nuclear program and a troubling lack of transparency on how the agreement is operating.  Congress, independent experts, and the public know less rather than more about what is happening at Iran's nuclear sites.   While the Obama administration promised that the deal would provide an unprecedented level of visibility into Iran’s nuclear program, reality so far has proven otherwise.