Kerry Sets A Dangerous Precedent With Letter to Iran

The norms of interpretation that are emerging now will be hard to shake in the future.

Buried in Congress’s big new budget deal was a controversial alteration to the Visa Waiver Program, a measure that allows travelers from many European countries to come to the United States without a visa. (Americans get the same privilege in return.) The reform prevents citizens of and recent visitors to Syria—and other countries determined to be sponsors of terrorism—from participating in the program. As I wrote last week, the measure has been heavily criticized due to the risk that the other countries that participate in the program would impose the same restrictions on Americans. Syrian American, Iraqi American, Sudanese American and Iranian American travelers would be, in the words of one advocacy group, “second class citizens.”

Many of the same critics have argued that the visa reform violates last July’s nuclear deal with Iran, under which the United States committed to “refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran inconsistent with their commitments not to undermine the [deal’s] successful implementation.” In other words, we can’t intentionally sabotage the restoration of trade with Iran; this bill, they charge, does that, as it imposes new hurdles on businesspeople who’d like to operate in both countries. Some Iranian politicians and apparently a number of European diplomats have advanced this view.

The Obama administration responded promptly to these concerns: shortly after the bill’s passage, Secretary of State John Kerry wrote a letter to Iranian foreign minister Mohammad Javad Zarif which stated that the administration would implement the reform “so as not to interfere with legitimate business interests of Iran.” Kerry ticked off a number of options the administration had available to soften the law’s impact and noted that the changes can also be waived.

This has drawn heavy criticism from Congressional Republicans like House Foreign Affairs Committee chair Ed Royce (R-CA), who accused the administration of “bending over backwards to try to placate the Iranian regime.” Royce couched his charge in a broader critique of the administration’s seeming reluctance to take firm measures in response to Iran’s recent ballistic missile tests, its ties to terrorism and its imprisonment of a number of American citizens on bogus charges. Royce’s counterpart in the Senate, Foreign Relations Committee chair Bob Corker (R-TN), raised similar complaints in a hearing last week, suggesting that the Obama team has been too reluctant to hold Iran to account. Part of this hesitation may be an attempt to avoid emboldening Iranian hardliners ahead of the momentous legislative elections two months from now. As well, the administration must be looking ahead to Implementation Day, a critical waypoint in the Iran nuclear deal in which sanctions will begin coming off and Iran’s major nuclear commitments are in full effect. Iranian president Hassan Rouhani has said Implementation Day will come in the current Iranian month, meaning before the end of January. So it’s hardly mad for the administration to be cautious these days, and Kerry’s letter was likely intended to forestall a destructive confrontation over a peripheral point.

Yet that doesn’t mean Kerry’s letter was the right approach—indeed, it was unseemly. The signal itself could have been sent differently, for example: the same letter could have been sent to all of the members of the Joint Commission, a multilateral body charged with resolving disputes over the deal. (Iran is among its members.) It could have been released as a statement from the State Department, addressed to nobody. It could have been communicated informally to the Iranians, not in writing. Kerry or a spokesperson could even have simply told a journalist about the administration’s intentions. Instead, we are given the appearance of a Secretary of State preemptively defending the Islamic Republic from U.S. legislators.