The United States has been at war with Iran for over thirty five years. Sometimes the war has been hot, sometimes cold, sometimes overt, and sometimes covert. Throughout this time period relations between the two countries have been hostile with very little diplomatic contact between officials of the two governments. In 2008, Barack Obama ran against Hillary Clinton on a platform of diplomatic engagement with Iran in opposition to her statements of being able to “totally obliterate Iran”.

Upon entering office, Obama, continuing America’s penchant for coercive diplomacy, doubled down on sanctions against Iran hoping that by causing economic hardship for ordinary Iranians he could pressure Iran to change its policies, particularly with respect to the development of nuclear capabilities. The strategy failed as Iran not only continued its peaceful nuclear development, but in many ways accelerated it. By his second term Obama, prioritizing addressing the nuclear proliferation issue, began negotiations with Iran on the nuclear issue in conjunction Germany, France, United Kingdom, Russia and China. (EU3 + 3) The negotiations resulted in the signing in July 2015 of the Joint Comprehensive Plan of Action (JCPOA) which limited Iran’s nuclear program in return for removal of economic sanctions. The agreement was endorsed by the UN Security Council in an action that requires member states to carry out the agreement.

The International Atomic Energy Agency (IAEA) has affirmed on numerous occasions that Iran has largely lived up to its obligations under the JCPOA. Obama has taken some executive action to live up the JCPOA by loosening the impact of the sanctions. The administration has approved the sale of aircraft and aircraft parts to Iran by Boeing and this week the US approved a license for Airbus to sell over 100 aircraft to Iran. However, the basic legal structure of sanctions remains in place. Obama has not moved as aggressively as he did in Cuba to increase U.S. business involvement in Iran, a step which would make the nuclear deal more difficult to reverse by engaging the business lobby in the issue.

Obama has not moved as aggressively as he did in Cuba to increase U.S. business involvement in Iran.

With the current sanctions authorization legislation set to expire on December 31, 2016, House of Representatives and the Senate passed the Iran Sanctions Extension Act by an overwhelming majorities (419 -1 and 99-0). Opponents of the JCPOA in the U.S. have argued in justifying this action, which is a clear violation of the JCPOA, that Iran has engaged in other “nefarious” activities, such as supporting the Assad in Syria, supplying arms to Hezbollah in Lebanon and the Houthi tribe in Yemen, developing ballistic missiles and in general resisting U.S. influence in the Middle East. The Senate has said that it will take up this bill in the rump session of Congress in December. Although Obama has indicated that he will veto the bill, the bipartisan support in Congress for sanctions extension means that a veto override is likely. Obama’s best option for preserving the nuclear deal is to fight a delaying action to “kick the can” down the road to the next administration where a Republican controlled Congress may be reluctant to create a big foreign policy problem for President Trump so early in his administration.

As on many issues, it is unclear what President Trump’s position will be on the JCPOA. During the campaign he condemned the JCPOA as a “horrible contract”, but acknowledging that it was a contract, vowed to renegotiate it. Renegotiating the agreement is probably not possible. The JCPOA is the result of complicated, intertwined negotiations over a long period of time. Reopening talks in an atmosphere of mistrust and recriminations likely means that the whole agreement would collapse. A number of senior Congressmen and potential officials in a Trump led government, having received large speaking fees, are closely tied with the Mujahidin-e-Khalq (MEK), an exiled Iranian opposition group with an odd Islamist/Marxist ideology. The MEK, having allied with Saddam Hussein during Iran-Iraq war, has the distinction of being more unpopular in Iran than the U.S. They will push a hard line approach under a Trump administration.

Passing Iran Sanctions Extension Act is a clear violation of the JCPOA.

The agreement, however, is not totally dependent on the U.S. Even if the U.S. withdraws from the agreement, Iran, under the administration of President Hassan Rouhani, and Russia, China and the EU have indicated that they will continue to abide by it. As it has in the past, the U.S. will likely use secondary sanctions on European companies to deter them from conducting business with Iran. This strategy will probably not be effective with Russia, India and China who have taken steps to disconnect their economy from the U.S. dominated and dollar denominated neo-liberal economic system. It remains to be seen how U.S. allies in Europe will react to being pressured to act against their own national interest.

The political situation in Iran will also have an influence on how U.S./Iran relations play out. Supreme Leader Ali Khamenei has said that if sanctions are extended Iran will “respond”. What the response will look like depends, in large measure, on the outcome of the May 2017 presidential elections. Incumbent President Rouhani has maintained a position that engagement with the West will benefit Iran diplomatically and economically. Because sanctions have, in large measure, remained in place and because Iran has been slow to reform its economic system, the benefits have not met public expectations. Opposions have attacked the policy of engagement with the West. Faced with these political threats, Rouhani may be forced to tack to the right and abandon the JCPOA, kick out the IAEA inspectors and expand the nuclear program. In that case the undeclared war with Iran will continue with all of the uncertainties and potential for disastrous consequences.

BY Donald Liebich, A Herald Tribune,

Rudy Giuliani belongs in prison

IF CLINTON BELONGS IN PRISON, SO DOES GIULIANI

Rudy Giuliani speaks before Republican U.S. presidential nominee Donald Trump at a rally in Cincinnati on October 13. Jacob Sullum writes that there is a strong case to be made that the former New York City mayor, who reportedly is in the running for secretary of state in the Trump administration, committed multiple federal felonies by assisting Mujahedeen-e-Khalq (MEK), an Iranian opposition group that the State Department listed as a terrorist organization until September 2012.

MIKE SEGAR/REUTERS

During the presidential campaign, Rudy Giuliani argued (correctly) that Hillary Clinton could be charged with a federal felony for mishandling classified information through her sloppy email practices as secretary of state even if she did not intend to break the law.

But there is also a strong case to be made that the former New York City mayor, who reportedly is in the running for secretary of state in the Trump administration, committed multiple federal felonies by assisting Mujahedeen-e-Khalq (MEK), an Iranian opposition group that the State Department listed as a terrorist organization until September 2012.

“My ties to them are very open,” Giuliani, a former U.S. attorney, recently told The New York Times. “We worked very hard to get them delisted.” But under the broad understanding of the federal ban on “material assistance” to terrorist groups that the Supreme Court upheld in 2010, that work was pretty clearly a crime punishable by up to 15 years in prison.

The “material support” statute, 18 USC 2339B, prohibits the provision of “training,” defined as “instruction or teaching designed to impart a specific skill”; “expert advice or assistance,” defined as “advice or assistance derived from scientific, technical or other specialized knowledge”; “personnel,” which means any person, including oneself, who works under the organization’s “direction or control”; or any other “service,” which is not defined at all. In Holder v. Humanitarian Law Project, the Supreme Court said the law covers volunteer work aimed at helping listed organizations resolve their grievances through nonviolent means.

While such advice and advocacy would ordinarily be protected by the First Amendment, the court said, “the government’s interest in combating terrorism” justifies the speech restrictions imposed by the ban on material support.

Notably, the Supreme Court refused to read the law as requiring an intent to further a terrorist organization’s illegal activities. As long as someone knows he is assisting a “foreign terrorist organization” (FTO), it is no defense to say he only meant to promote its lawful activities. Giuliani, who “worked very hard to get [the MEK] delisted,” obviously knew the group was considered an FTO.

Nor is it necessary that someone providing material support to an FTO receive compensation in return, although Giuliani apparently was paid handsomely for his speeches on behalf of the MEK. According to the court, the difference between protected and prohibited advocacy is not whether money changes hands; it’s whether the advocacy is “performed in coordination with, or at the direction of, a foreign terrorist organization.” By announcing that “my ties to [the MEK] are very open,” then, Giuliani is effectively confessing to a crime.

I am not saying Giuliani should go to prison for his efforts to rehabilitate the MEK. The State Department’s list is arbitrary and shaped by political considerations, the MEK had a strong argument that it should no longer be considered an FTO, and in any case peaceful advocacy of lawful activities should never be treated as a crime. Knowingly providing material assistance to an FTO (which Giuliani did) is not necessarily the same as knowingly providing material assistance to terrorism. For the sake of fairness and freedom of speech, the law’s mens rea requirement should be stronger.

The same goes for 18 USC 793, which Clinton arguably broke by allowing classified information to be removed “from its proper place of custody” through “gross negligence,” a felony punishable by up to 10 years in prison. A conviction under that law should require more than negligence, because it should not be possible to accidentally commit a crime. That is the main reason James Comey gave for declining to recommend charges against Clinton: Although the law does not require criminal intent, justice does.

But Giuliani was not willing to cut Clinton any such slack. As far as he was concerned, she violated the letter of the law, so she should have been prosecuted. It did not matter whether she realized she was breaking the law.

By that same reasoning, Giuliani should be prosecuted for providing material support to a foreign terrorist organization. It does that matter that he did not view the MEK as a terrorist group; it’s enough that the State Department did. Nor does it matter that he did not intend to promote terrorism, since the law does not include any such mens rea requirement.

If Hillary Clinton belongs in prison, so does Rudy Giuliani.

Jacob Sullum, Newsweek,

Jacob Sullum is a senior editor at Reason magazine and a nationally syndicated columnist.