TIME world affairs

Chertoff: Iran Deal Worthless Without the Right Enforcement Mechanisms

From left, U.S. Under Secretary for Political Affairs Wendy Sherman, U.S. Secretary of State John Kerry, U.S. Secretary of Energy Ernest Moniz, Robert Malley, member of the U.S. National Security Council, Iranian Deputy Foreign Minister Abbas Araghchi, Head of Iran Atomic Energy Organization Ali Akbar Salehi, Iranian Foreign Minister Javad Zarif and Hossein Fereydoon, special assistant to Iranian president, wait to start a meeting at the Beau Rivage Palace Hotel in Lausanne, Switzerland, March 29, 2015.
Brendan Smialowski—AP From left, U.S. Under Secretary for Political Affairs Wendy Sherman, U.S. Secretary of State John Kerry, U.S. Secretary of Energy Ernest Moniz, Robert Malley, member of the U.S. National Security Council, Iranian Deputy Foreign Minister Abbas Araghchi, Head of Iran Atomic Energy Organization Ali Akbar Salehi, Iranian Foreign Minister Javad Zarif and Hossein Fereydoon, special assistant to Iranian president, wait to start a meeting at the Beau Rivage Palace Hotel in Lausanne, Switzerland, March 29, 2015.

Michael Chertoff was secretary of Homeland Security from 2005 to 2009. He is now executive chairman of The Chertoff Group, a global security and risk-management advisory firm.

How will we enforce Iranian compliance to the deal?

In the wake of the recently announced “framework” on Iran’s nuclear activities, both the Barack Obama administration and critics are spinning faster than the centrifuges. But the pivotal moment – when any actual agreement is signed – is yet to come. That is when we must face the crucial issue of how Iranian compliance with any agreement will be monitored and enforced.

As outlined by the president in a set of talking points already disputed by the Iranians, the proposed agreement will limit the number of centrifuges to be used while mothballing the rest; will allow the underground (and previous concealed) facility at Fordow to operate, but only to enrich isotopes other than uranium; and will permit “peaceful” nuclear research. Issues such as restrictions on Iran’s missile program or support of terrorism are outside the scope. But even those restrictions envisioned will be subject to interpretation and riddled with ambiguity.

The stakes are high. So long as Iran is deemed to be complying with a nuclear agreement, it will be relieved of many, if not all, sanctions, and it will be able to rebuild its economy. Further, an agreement will effectively place any future covert or military efforts to retard or destroy Iran’s nuclear efforts off limits. For example, it is inconceivable that Israel would be allowed to strike at a nuclear facility in Iran so long as the proposed pact is in force. Thus, if the agreement is deemed effective, it will act as a shield against efforts of any kind to interfere with Iran’s nuclear activities.

This, of course, was what happened in Syria, when President Bashar al-Assad crossed Obama’s red line and used prohibited chemical weapons. The United States signed onto a last minute Russian deal in which Assad agreed to dispose of certain declared chemical weapons. But the bargain was one-sided. It effectively legitimated the Assad government and shielded its continued use of other mass-killing weapons such as barrel bombs and chlorine gas.

Thus, there will be huge significance to any determination that Iran is complying with or violating the proposed nuclear agreement, especially one incorporating several subjective and uncertain requirements. For this reason, the president has understandably placed great reliance on the promise that there will be strict verification, and a “snap back” of sanctions if Iran transgresses.

Here’s the rub: The framework merely states that there will be a dispute-resolution mechanism when Iran and the West disagree about whether Tehran has broken its commitments. But actually the whole ballgame depends on the identity and the authority of the umpire who will make the finding that Iran has breached. If an allegation of Iranian violation is merely the opening round of an endless dispute, there will be wide latitude for cheating while that dispute is being litigated. And who will be the final judge? Will it be the UN Security Council, where Iran is likely to be protected by Russia, as was their mutual ally Syria?

The history of sanctions compliance suggests that there are many ways to rationalize or explain away apparent violations. Delay, obfuscation, quibbling over terms – especially when operative terms will need to be translated through multiple languages – are time-tested ways to protract resolution of international compliance disputes. Moreover, three reasons in particular will make it difficult for the international community to reach a decision that Iran has violated its obligations under this agreement.

First, recent history shows that once an agreement is signed, the parties view finding of violation as a defeat for their accomplishment. Indeed, many will take the lesson of the Iraq war to be that there can rarely be sufficient proof to establish a weapons-of-mass-destruction violation. You can be sure that if nuclear inspectors in Iran claim denials of access or violations, there will be vigorous push back by the Iranians and by a chorus singing “remember Iraq.”

Second, once sanctions are lifted, many Westerners will have vested interest similar to the Iranians in keeping them suspended. There is a lot of money to be made trading with Iranians. After Western enterprises have invested in Iran, they will be a strong voice against “snapping back” sanctions that will destroy their investments.

Third, any adjudication mechanism that requires UN Security Council approval to reimpose sanctions will give Russia a veto over the sanctions process. Besides further inserting itself into the Middle East through Syria and elsewhere, President Vladimir Putin’s Russia has also shamelessly interfered with Ukraine, and would be able to use its whip hand over Iran sanctions as a bargaining chip for its bullying in Europe. It’s not comfortable to contemplate a nonproliferation agreement that depends on Russia for its efficacy.

Whatever the debate about the framework, by far the most important negotiations are yet to come. Any nuclear agreement with Iran that is not enforceable and sanctionable through an impartial, apolitical, and swift dispute-resolution mechanism will not be worth the paper it’s printed on.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME world affairs

Chertoff: We Need a Clear Doctrine of Deterrence to Cyber Attacks

Michael Chertoff was secretary of Homeland Security from 2005 to 2009. He is now executive chairman of The Chertoff Group, a global security and risk-management advisory firm.

And just as we did not abandon our aviation system after 9/11, we should defy demands that we curtail our free speech.

For years, cyber security specialists have reported on intensifying intrusions into the information networks of our major institutions, both public and private. Most of these have involved theft of personal information for financial gain or espionage aimed at stealing valuable intellectual property.

But occasionally we have seen more destructive attacks, aimed at “wiping” or destroying the networks and data themselves. In 2012, Saudi Aramco was a victim of a cyber attacks that destroyed thousands of machines, and in 2013 South Korean banks were also targeted for cyber damage.

The recent Sony attack is a disturbing new chapter in this escalation of cyber conflict, not least because of the reaction we have seen. North Korean sympathizers styling themselves “Guardians of Peace” have claimed credit for cyber intrusions that released substantial amounts of confidential Sony information and intellectual property and subsequently incapacitated Sony’s IT system. The group—thought by many to be directed by or at least complicit with the regime in North Korea—claim to be aggrieved because of a forthcoming Sony comedy that ridicules and ultimately portrays the assassination of North Korea’s dictator. The attack on Sony was followed in recent days by additional threats to cause “another 9/11″ at movie theaters that showed the film publicly.

Although Homeland Security Secretary Jeh Johnson affirmed that there is no credible evidence that this is a real risk, several movie chains cancelled showings and the release of the film has been suspended. Regardless of how empty this threat of retaliation really is, some of our theater companies have handed the North Korean regime and terrorists generally a major victory by effectively conceding a terrorist’s veto over our First Amendment.

Terrorist threats of physical or on-line violence to suppress free speech are not new. After a Danish newspaper published a cartoon deemed by some unflattering to Mohammed, some violent Islamist extremists plotted bombings in Denmark. Years ago, the Iranian regime levied a “death sentence” against author Salman Rushdie for his book Satanic Verses, which Ayatollah Khomeini deemed blasphemy. Some publishers were sufficiently intimidated that they self-censored cartoons or writings which might offend violent radicals.

But the wholesale cancellation of film showings in direct response to terrorist bluster is a profile in timidity. Moreover, as is the case when we pay ransom to kidnappers, a craven response to threats simply encourages more threats. Do we really want to hand the censor’s pen to North Korea or to ISIS? Is it really good business if media companies begin to reject books or film ideas because someone might be offended to the point of violence?

What is to be done? First, inasmuch as critical infrastructure companies are treated as national priorities for cyber security, our government needs to afford media companies the same sort of help. Second, as our citizens become the victims of actual destructive attacks by nation states or their proxies, we need a clear doctrine of deterrence and response by the U.S. government. Finally, just as we did not abandon our aviation system after 9/11, we should defy demands that we curtail our free speech. The filmmakers ought to make this new film available as widely as possible as soon as possible.

Michael Chertoff was secretary of Homeland Security from 2005 to 2009. He is now executive chairman of The Chertoff Group, a global security and risk-management advisory firm.

TIME Ideas hosts the world's leading voices, providing commentary and expertise on the most compelling events in news, society, and culture. We welcome outside contributions. To submit a piece, email ideas@time.com.

TIME foreign affairs

Michael Chertoff: China’s Strategic Campaign To Steal Western Commercial Secrets

The indictment lays down an important marker that strategic intellectual property theft will be treated as a serious breach.

This week’s indictment of five members of Chinese People’s Liberation Army “Unit 61398″ shines a spotlight on China’s strategic and systematic campaign to steal Western commercial secrets in order to unfairly advantage Chinese state owned or favored enterprises.

For years, many of us inside and outside government have warned that China was using espionage to obtain American intellectual property and confidential business plans for the benefit of Chinese companies. Recent US government reports have identified China as a profligate source of cyber intrusions into Western commercial networks. A private report by Mandiant released in 2013 pointed at the same Chinese Army unit as targeting over 140 companies across a wide variety of corporate systems, including those of technology companies and even media outlets. Last year, President Obama raised the intellectual property theft issue with President Xi at their summit in California.

But this is the first time criminal charges have been brought against specific Chinese military personnel for commercial cyber espionage. Of course, it is not plausible that these individuals will be extradited to the US to see the inside of a courtroom. Nevertheless, the indictment is a milestone for several reasons.

First, these charges set an important precedent that state sponsored intellectual property theft is not immune from prosecution. Indeed, taking the logic of this prosecution further, we may one day see prosecution of companies that induce and benefit from this cyber espionage under a theory of conspiracy. Such prosecutions would operate as an economic deterrent and would pave the way for ancillary civil lawsuits to recover damages.

Second, the lengthy indictment spells out in detail the kinds of commercially valuable data that was stolen and — somewhat unusually — identifies the victims, which include iconic American companies. What emerges is the portrait of a Chinese military unit assisting state owned enterprises by mounting a strategic campaign to target particular business processes, negotiating plans, and sensitive pricing and marketing information of their Western competitors. This puts real meat on the bones of what are usually just general warnings about cyber espionage. And it is striking to observe the sheer breadth of data that was taken, including very particular product specifications and business strategies. The result included giving Chinese companies an illicit look at their American counterparts’ negotiating tactics, as well as at attorney-client privileged communications in a trade dispute.

Third, the detailed nature of the charging document serves as a not too subtle warning that US investigators are quite capable of assembling a detailed picture of Chinese state backed cyber hacking operations. While that will not prevent all future such espionage efforts, it may cause foreign authorities to be more hesitant to engage in massive intellectual property theft.

Why does this all matter? Of course all nations engage in intelligence collection and espionage for national security purposes, and we have an intelligence community that does the same. But in the field of commercial competition we expect a level and fair playing field. When a nation state harnesses its intelligence capabilities to give its state-favored enterprises the advantage in negotiating or in bringing technology to market, the global trading system is skewed. Cyber espionage in the service of commercial companies allows those companies to harvest the benefit of others’ research and development without making any investment of their own. If state owned companies can secretly see their competitors’ production data, pricing calculations, and business strategies, those state enterprises can underprice or block the competition.

This week’s indictment lays down an important marker that strategic intellectual property theft will be treated as a serious breach of the rule of law and as a threat to the global economic and trade system.

Michael Chertoff was secretary of the Department of Homeland Security from 2005 to 2009. He co-founded and is chairman of the Chertoff Group, a global security and risk management advisory firm, and is senior of counsel at Covington & Burling LLP.

Your browser is out of date. Please update your browser at http://update.microsoft.com