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The Electronic Communications Privacy act turns 40 this year and it's showing its age. On Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates to ecpa, a half day event on what's broken with the statute and how to fix it. The event is free and open to the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register.
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Can I make my site firmer? Can we sleep cooler?
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- [02:25]
A
If there is a limited US strike, Iran is probably likely most likely to respond, perhaps bigger than it did following Midnight Hammer, but still try to calibrate its response so it doesn't end up generating that outcome that it hopes to avoid, which is regime change.
- [02:41]
C
It's the Lawfare podcast. I'm Benjamin Wittes, editor in chief of Lawfare, with Lawfare Public Service Fellow Ari Tabatabhai and Eric Brewer of the Nuclear Threat Initiative.
- [02:55]
D
For the administration to indicate that the current regime, in its current format, led by people who are willing to just kind of shut down the Internet for several days and then kill this many people, is legitimizing that regime. And if we end up granting them sanctions relief, we're giving them a lifeline economically that we don't need to be giving them in this particular moment.
- [03:17]
C
Today, we're talking Iran. Is the United States going to war with Iran? And if so, why and what over? Is it about Iran's residual nuclear program, or is it about regime change? Ari, are we about to have a war with Iran?
- [03:38]
D
Maybe. It is a brilliant question. I don't know the answer to that. But we should be paying attention to two tracks here. One is the military side, and the other is the political side. On the military side, we sure look like we are posturing ourselves for a pretty significant campaign, I would say. Everything we're seeing move to the region. Naval assets, air assets, operational support assets. This is a massive buildup that seems to be going beyond what we saw in Midnight Hammer. That's the operation over the summer that targeted Iranian nuclear facilities, which was kind of designed to be a one and done, right? I mean, obviously, Iran could have retaliated more forcefully than it did, and we could have seen escalation. But in general terms, it seems like the administration's goal was to go in, target facilities, come back, and for that to be the end of it. This seems to suggest something very different. It seems to suggest a whole host of target sets and potentially setting us up for an operation that would last beyond just a quick kind of, you know, few hours going in and out. But we should be paying attention also to the political side of things, which is that, you know, there are still ongoing negotiations between the United States and Iran led by Steve Witkoff, the special envoy for all things, including the Middle East. And, you know, there are a number of questions that we can kind of get into as to whether or not we think those might be going anywhere. But, you know, I think there is still an opportunity here for some sort of diplomatic solution. The President keeps saying that he would like to see a deal, but that he's posturing for war as well. And I think that's probably true on the Iranian side. At least they seem to be preparing for potential military action while pursuing these negotiations at the same time.
- [05:27]
C
And when we say these negotiations and a diplomatic solution, a diplomatic solution to what, is this fundamentally a continuation of the nuclear talks, the nuclear program curtailment that has had a military element and has had a diplomatic element? Or is this about the protests and regime change and what is the problem set that we are purportedly solving for here?
- [06:05]
D
That's also a great question. And part of. I think what we're struggling with is that there's been a lot of back and forth over the past couple of months in the way the administration has talked about the negotiations and what it would like to see. I do think that we are fundamentally right now seeing a siloing of the nuclear issue from the other issues of concern, which sidebar, you know, is something that Republicans really hated about the Joint Comprehensive Plan of Action many years ago. But no one seems to be concerned with that right now. But putting that aside for now, it seems like the administration is actually focused on the nuclear peace in these negotiations. That said, just a couple of months ago, or maybe it was just a couple of weeks ago, the president had said that he wanted to see an end to the massacre that was going on in Iran, that he would not be negotiating with Iran as long as the death toll kept going up and if they didn't stop killing people. And then a couple of days later, negotiations were resuming. And then at the same time, he had talked about potentially going in to support protester, but now we're talking about potential military action to stop Iran's. Well, actually, I'm not sure what the goal is in terms of the nuclear program. Eric can opine more on this, but at least to go take care of the nuclear program, whatever that might mean in the way the administration is framing it. So, you know, it's been a bit of a messy kind of messaging coming out of the administration. We haven't seen a lot of focus in the way they've talked about the both tracks, both the military side and the political side of things. But it seems like we are now focusing more or less, at least for now, on the nuclear issue.
- [07:45]
C
All right, Eric, assuming we are focusing on the nuclear issue and that this is not about getting rid of the Iranian regime or supporting protesters or anything else, what is the residual issue with respect to the nuclear program that justifies or could be addressed with a massive buildup of force and a resulting medium to substantial campaign?
- [08:19]
A
Yeah, no, I mean, I think the relative value of any further US Military action that sort of is focused on Iran's nuclear program as sort of a counter proliferation strike, if you will, is relatively low because of the impact of Midnight Hammer. Right. We know the two major enrichment facilities that are Iran had at the time, Natanz and Fordo, are offline.
- [08:44]
D
All right?
- [08:45]
A
Iran's no longer enriching there and they're most likely unusable. We know that the places where Iran has potentially stored its 60% enriched uranium, which is really worrying because that's very close to the 90% weapons grade level. And actually you could, you could actually use 60% directly in a crude nuclear device in a pinch. So we're really worried about that material, but that is probably located in tunnels that are not penetrable by U.S. munitions. And that Iran has sort of worked to backfill to make it even harder to get at with any type of strike. And so we're not going to be able to eliminate that via airstrikes. And so the overall counter proliferation value is quite low. I wouldn't rule out that there's some kind of like target of opportunity, right? Like if Iran moved some of that material somewhere or, you know, you could, you could strike a facility, a military facility called Parchin, where Iran has done some, made some efforts to reconstitute where it was allegedly involved in some of the work around actually building that device. Right. Like building some of the components that could be used for a device. But the menu of targets is far less and the impact would be far less than it was back in June of 2025. And I think overall, Iran has really focused its efforts on reconstituting its missile program since that time. It's made some efforts on the nuclear front, but they're relatively small. A lot of it has been focused on the missile program. And to add one comment to what Ari said earlier, and I completely agree with her characterization of sort of this, the political scene. I mean, the US Demands of Iran have been completely inconsistent. Right. There's a line out there that I think a lot of people like to use and point to that. You know, Secretary of State Rubio has said at various points, maybe others have, which is that the United States is demanding that Iran sort of give up its proxies, give up its supports of proxies, give up its missile program and give up its nuclear program. But when Wyckoff was being interviewed the other day, he only mentioned two of those red lines. Two red lines. He said Iran's got to give up its enrichment and it's got to give up its nuclear material. And then maybe when Iran demonstrates that it can behave, then he implied some sort of flexibility there. So the Iranians, I think, are getting very different messages depending on who they listen to within the US System. And that's a huge problem. Right. Because as Ari mentioned, there's been this huge military buildup. And so, in a sense, you know, Iran is kind of negotiating with a gun to its head, and the person holding that gun is kind of continuing to change the demands that they're asking of Iran. And so that's a really. That's not really a great way to negotiate. That's not really a great way to get the result that you want. And so I do worry about sort of the prospects of escalation here.
- [11:31]
C
Yeah. So I'm curious, following from that, you've both referred to the results that one wants. How do you both, Eric first and then Ari, how do you both understand the result that the administration wants? Because I confess, having read the news stories here, I have no idea what the administration is trying to achieve.
- [11:57]
A
I think it depends on who you ask in the administration. Right. I think there is certainly a. I think a constituency that probably wants all of the big things. Right. They want Iran to capitulate across all of these. These areas that I mentioned. And that's what it is. It is a capitulation, which is a word that Wyckoff used in his interview when describing the way Trump thought about it. And so I think there's some who view that as the end game. And if we're not able to get that, then a war is acceptable, then a war is okay. Right. It's an acceptable outcome that if we can't get there, then we go all the way, and we essentially try to remove the regime via military action and sort of create conditions on the ground where the Supreme Leader is removed from power. I'm not sure Trump holds that view. Right. I actually think that Trump fundamentally wants a deal. He thinks of himself as a deal maker, but I think he just has no idea how to go about doing that. Right. I don't think he's really set up to succeed in getting a deal with Iran because of how he thinks about the problem and how the Iranians think about the problem.
- [13:02]
D
I agree with everything Eric said, and I think Trump has actually been fairly consistent in the way he's characterized what he would like to see out of Iran since his first term. Right. He has pretty consistently said, I would like a deal with Iran. That kind of. He hasn't said it in so many words. But that replaces the jcpoa. And if Iran is willing to make the concessions needed to get that deal, then Iran can prosper, quote, unquote. And that's further than many have been willing to go in the past. So, you know, we kind of understand that to be a deal that kind of gives Iran sanctions relief in exchange for concessions. When we start to kind of drill down a little bit, I think it becomes a little fuzzier for all the reasons that Eric explained. You know, depending on who you ask in the administration, you'll get a bit of a slightly different answer. And I think the other piece of this here is that there is an interagency process for those of us who are political, bureaucratic, politics nerds that seems to not be functioning the way it should be functioning. And there are significant players who are not at the table, it would seem, from the reporting we're seeing, that would help shape some of those objectives, would help think through some of the trade offs that we can talk about that would help clarify objectives. I'm thinking predominantly of there's been reporting over the past couple of days that the only person from the kind of DoD side of the House who's been present in these conversations is the chairman, General Kaine, which is great. But you have that civilian side of the DOD that is missing in action. And you need that because that's the kind of side that helps you think through what do we need to plan for action and what do we need to think about what happens next and when that side of the House is missing in action for whatever reason. I think even if the civilian in charge is Pete Hexseth, it's still not a great thing. So I think the process itself is not set up to give the President ultimately all the information that he needs, all the perspectives that he needs to be taken into account when it comes to taking to, you know, potentially be looking into something as significant as a multi day campaign on key Iranian military, nuclear, other targets.
- [15:13]
C
And do we assume that a multi day campaign of this variety is just an air power campaign, or do we assume that there is a significant ground element to it?
- [15:28]
D
I think part of it depends on what the objectives are. Right. If we're just thinking about going after select missile sites, for example, it would look one way. If we're thinking about actually going and trying to degrade the broader military capabilities, then that looks something completely different as well. So I really think it depends on the objectives here, on the target set, and also, by the way, the trade offs that need to be made. And we can talk about this again in a bit. But whatever we're doing, we're preparing to do in Iran is going to have significant costs elsewhere. So that it's also about accepting risk to some extent for other potential contingencies.
- [16:11]
A
Yeah, I completely agree. I mean, I think when you try to predict which way this is going to play out, sometimes it's useful to think about things that we haven't seen yet, like indicators that we have not seen. And I think one thing we have not seen is any sort of discussion. And please both of you, correct me if you've seen something different, but we haven't seen any discussion of ground forces. And so all of this seems to be about some type of air campaign. And we can imagine there's probably other things that are part of that, be it cyber or other types of tools that may be paired with an air campaign. But I think that part of this lack of clarity stems from what Ari kind of laid out at the outset, which is that there doesn't seem to be an overarching strategy or plan that's been part of this buildup. It's kind of unfolded over time. And it sort of started with that initial, you know, Trump's initial reaction to the suppression of the protest within, within Iran and the tweet about, you know, we're on our way essentially, or something to that effect. And then it is kind of just snowballed from there. Right. And so it's kind of, you know, the logic of what this could potentially be has kind of evolved over time. And so that's kind of how we've ended up where we are now.
- [17:23]
C
Yeah. So let's talk about that in sequence, because I think it nicely summarizes the kind of integration of the nuclear issue and the protests. So on the one hand you say, okay, well, the previous round went a lot more smoothly than anybody expected it to, as best as I can tell. And Iran was left without air defenses, the Israelis having destroyed a lot of their missile program operating at will. We came in and finished off some high value nuclear assets, and now they're kind of on the ropes and they don't have the ability to defend whatever's left. So if you're thinking about this bloodlessly, why not use this opportunity to. They're on the ropes domestically because of the protests, too. So why not use it to gouge maximum concessions from them on all international issues of their projection of malign force? I mean, assuming this were just about the nuclear program, what's kind of wrong right now with pressing the advantage and saying, let's see if we can get them to cry uncle.
- [19:01]
D
So just to clarify, I am not against military action in general. Right. I do think that under certain specific circumstances, military action can be part of the toolkit and should be part of the toolkit. For example, if there's intelligence indicating that Iran is weaponizing and it's going to do so very quickly, then maybe military action should be considered. But there needs to be a proper process. There needs to be congressional involvement. There needs to be clear objectives. There needs to be clear messaging to the adversary. There needs to be coordination and cooperation with allies and regional partners. There is to be planning for what comes next. And right now I don't have any indication that any of these things is actually happening. And it just feels like ID as opposed to thought and planning for what should be going on. And look, when we've had Venezuela talks about Greenland, by the way, maybe Cuba and Mexico all in the past couple of months, it makes it a little hard to take it seriously that the administration is actually paying careful attention to all of these things and is pursuing certain objectives as opposed to just using this shiny tool that it thinks don't necessarily bring the cost that we all know can be associated with military force. And I think to that point, the president and the administration might be taking out the wrong lessons from Midnight Hammer from Venezuela, which is that you can just kind of go in, conduct an operation, the US Military will do a fantastic job to achieve its operational objectives and then we're done. And that's not generally how it goes. It can, as we've seen, happen, but there was also a lot of risk that was associated that did not play out. And I'm concerned that now that means that the administration may be dismissing some of those risks that are associated with this action. The second piece here and to your more specific point about the protests, Ben, I do think that if we look at history and Iran's history specifically, when you have these moments of domestic weakness, it's generally not the best time to actually have military action. Right. Iran was having tremendous domestic upheavals right after the revolution. Saddam Hussein decided this was the perfect moment to go and take over a tiny region of Iran. And it was going to be a three day war, kind of like what we heard with Putin and Ukraine just a couple of years ago, four years ago. And you know, he was going to be getting all the oil resources and absorbing the Arab minority in that region and it was going to be done eight years later, hundreds of thousands of deaths later, that war did not go the way Saddam imagined it going. So, you know, when your adversary is in a moment of domestic weakness, it might seem like it's actually a good time to go and intervene. That is not necessarily true, and that's not what I think the historical lessons that we have from Iran's own history and broader history actually indicate.
- [22:01]
A
Eric, I agree with a lot of what Ari said. I too, am not wholly opposed to the use of force as a rule under any circumstances. I think there are situations where that could be a viable option and a sound option. Ari mentioned one, which is if there were evidence that Iran was weaponizing. But I don't think that military force. I'll leave it to others to judge the legality of all of it. But I don't think you're going to kind of probably bomb the regime out of existence. Right. I don't think that is a viable strategy. Right. A regime change via military force. And even if I'm wrong, and even if it is right, and the US kills the supreme Leader, they kill the sort of the next line of leadership that's in waiting, maybe additional IRGC officials, we don't know what's going to come in its place, and we have almost no ability to help shape that right now. Right. And there's obviously worlds in which something worse emerges from that. There's worlds in which you have an extended period of instability and chaos within Iran and we can have a whole separate conversation about the risks that that introduces from a nuclear standpoint. Right. We would have significant risks of, of nuclear material and technology that isn't under any sort of, you know, protective apparatus. And there's a risk that it, it goes missing or sort of falls into the wrong hands. I would add, you know, whatever regime comes in the current one's place is going to inherit that program and inherit that capability. And so that, that is a whole separate policy challenge. And so, you know, I'm not sure, you know, trying to, to achieve this better end state via military means as the principal tool is, Is really a smart play. To your fundamental question, though, about, like, why don't we try to. If you believe what you read in the papers, or I guess not everybody gets their news on paper anymore, you know, if you believe what you read on X or whatever.
- [24:07]
C
Papers are a metaphor.
- [24:08]
A
Yeah, yeah, exactly. That. The, that the administration may be trying this, this strategy of like, you know, gradually escalating strikes to try to kind of, as, you know, as you put it Sort of squeeze the regime and get it to cry uncle across this range of issues that we care about. The problem with that is that Iran gets a vote in that strategy too. Right. And so, you know, if we strike, you know, a sort of limited select number of targets tomorrow, Iran could respond. Right. And then we're forced to calculate what do we do next. And, you know, I actually think, you know, this is a bit of a tangent, but Iran's strategy recently has been to try to convince the United States that it's going to go big.
- [24:49]
C
Right?
- [24:50]
A
That's how it's trying to deter US Military action, is that it's claiming that we're not going to distinguish anymore between a limited strike and full blown war, unlimited war, and we're going to treat them the same and we're going to go after you as if you were coming after the regime. I don't think that's a particularly credible strategy, actually for Iran. And I do think if there is a limited US Strike, Iran is probably likely most likely to respond, perhaps bigger than it did following Midnight Hammer, but still try to calibrate its response so it doesn't end up generating that outcome that it hopes to avoid, which is regime change. But if the US Goes in with a different approach, if the US Goes in with a regime change approach, or Iran, and actually what matters here is what Iran believes. It's not what we're actually doing, it's what Iran believes. If Iran thinks it's in a situation where we are going to gradually tighten the noose around its neck, so to speak, it has more of an incentive to go bigger earlier because it's in a sort of a use it or lose it, damned if you do, damned if you don't situation. And so that's the other reason why I think that strategy is not particularly viable and is not particularly wise.
- [25:56]
C
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D
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- [33:42]
C
All right, so let's now add the protests to the mix here. I don't think they are irrelevant to the conversation. And the reason is that we weren't threatening to do this before the protests came along. And so they clearly, at least in terms of coincidence of time, show up as a precipitating event. And so, Ari, I want to start with you here. How much of this is really about Iranian domestic politics and about the fact that Trump made these noises about the cavalry being on the way and then the Iranian government killed 10 to 40,000 people, and so now you feel like you have to send the cavalry?
- [34:36]
D
It's possible. I don't know. It is possible that that is part of the equation. It could also just be that, you know, he, the president is losing patience with the pace of the nuclear negotiations these things tend to take. And we know that sometimes he just wants to kind of move forward a little faster than complex nuclear negotiations in exchange for sanctions relief can go forward. So it is possible that they're connected. I do think that, I mean, the regime came out, massacred tens of thousands of people. The lower ends of the estimates are still higher than Tiananmen Square. So really significant number of people and seems to have reasserted control for now. I do think, as we've talked about on this podcast and Rational Security in the past, I do think that it's just a matter of time before we see the next round. And ultimately, this is a regime that has irreversibly lost its legitimacy among its people. I do think that whether we decide to use force is going to also be part of the equation, though, because you could see a situation in which the external threat overpowers the ongoing internal discontent. And that is a concern I have about whatever direction we end up going here. I do Think it's really hard to separate out the two right now. And this is the first time where I think that it's actually, you know, the earlier point I was making. If the administration is trying to silo the nuclear from the domestic issues, from the human rights issues, I would say that's probably a mistake and it should be really looking at that whole issue said more holistically. In the past, I supported negotiations that siloed the nuclear issue. It's complex enough by itself and, you know, it is, from the US national security perspective, the biggest concern, because it can be. It can make everything, all the other challenges with Iran a lot worse. But I do think that in the current moment, given what we've just seen coming out of Iran, it is a huge mistake to silo those two things. So I do think that the administration needs to think very holistically about this issue and make sure whatever it is doing on one does not affect the other negatively.
- [36:44]
C
Do we have any sense at all of what Iranian public opinion or any substantial segments of it think of the possibility of US Military action at this point?
- [37:00]
D
We don't have good data. I mean, generally getting good public opinion numbers out of Iran is a challenge. It's especially a challenge now given that Internet connectivity has not been back to 100%. I mean, not that it's been 100% for a long time, but, you know, the flow of information remains disrupted. So I have not seen very good data that would kind of point us in one direction or the other. But Eric may have seen something that I'm not tracking.
- [37:27]
A
No, I haven't. And that's, you know, not an area I follow closely. But I do just want to kind of double down on the point that Ari made about the need to not just silo off the nuclear issue. Right. We have to think about it in the larger context. And one of the, one of the important changes, recent changes, as Ari noted, are those January protests and the really violent suppression of them. I also agree with ari's characterization of kind of where the regime is at. It seems even if it's not going to collapse tomorrow, it appears to be on this kind of downward spiral and incapable of sort of making the choices and taking the actions to rescue itself from that. And so the trade offs that would come with a nuclear deal include massive, significant sanctions relief for the regime, which has always been true. In 2015, when we had the JCPOA, I was of the view that that trade off was worth it for the reasons that Ari laid out. I think those Trade offs are a lot harder today. And I think there's a much more serious conversation that needs to occur around sort of the wisdom of those trade offs. And so I think that's where, you know, in my perfect world, we sort of hit pause with where we are now and don't get ourselves, you know, involved in this potentially unnecessary conflict that we don't have to get involved in. And we sort of reset and we have this important sort of serious policy conversation about the future of US Iran policy given big changes that have taken place over the past few years. Not just kind of the conflict in the Middle east that sort of stemmed from the October 7 attacks and everything that followed from that, but just the protest where Iran's nuclear program has evolved since then. It's just that the pictures become much more complicated and we need to have a much more serious conversation around that.
- [39:23]
C
All right, so you've both now said this. I let it pass when Ari first said it, but now you've doubled down on it. So I want to, I want to.
- [39:33]
A
A great risk.
- [39:34]
C
I want to. Yeah. Since there's consensus on this point, I want to delve into it that you both have said that you were supportive of the idea of segmenting the nuclear program negotiations at the time of the jcpoa and that that made sense then, but it doesn't now. I'm curious, why the change? Why, why not say, hey, this is an opportunity to get serious concessions, get a much more restrictive deal than the jcpoa. So for all the same reasons that you were willing to lop it off then and treat it separately, leave aside killing 50,000 people or whatever, you should be willing to do the same thing. Now, I was going to say, other than the deaths of 50,000 people or whatever the number is, what has changed? Of course, that's a kind of a big thing. But what, what, what are the parameters of, of the reason why what made sense in 2015, 2016 doesn't make sense now?
- [40:46]
A
So I make a couple of, I guess, comments on that one. I don't think it's that radical of a, of a position in some ways. Right. And actually, I don't want. Ari knows this story better than I do because she, she lived it. But, you know, there was a time in the Biden administration where during the Women Life Freedom protests, the Biden administration essentially backed off from nuclear negotiations and said, you know, it wasn't there, it wasn't the priority at the time. And so because of, because of both what was happening within Iran, because of Iranian support to Russia's war in Ukraine and a whole bunch of other issues. And so it's not a radical idea to sort of subordinate that or think about it in the context of other issues, that being the sort of the nuclear issue. I'm also not sure a viable deal is on the table right now, to be perfectly honest with you. Again, you look at the fact that the Biden administration tried to revive the jcpoa, which did not succeed, we can have a whole conversation, a whole separate podcast, I'm sure, around why that's the case, and I'm sure Ari's got views on that. But there was, there was a pretty viable deal on the table for Iran and it chose to reject it at a certain point and insert a bunch of things that it probably knew were not going to be accepted. And to get back to a comment I made earlier, the nuclear program is just, it's in a fundamentally different place today. And there's a lot of talk now about, oh, Trump's just going for a jcpoa. And usually it's in a kind of like derogatory sense. But the JCPOA is not adequate anymore. Like, if we were to bring that deal back today, it would not be adequate. It, just because of how Iran's program has evolved since then. It is, it has developed skills and capabilities. Some of those skills cannot really be unlearned on some really, you know, sensitive types of things, including operating advanced centrifuges, including working with uranium metal. That is a key sort of capability for a bomb. And the, the access the IAEA has had over the past few years and especially, especially sends the June 2025 strikes is just, it's, it's been drastically less. And so, you know, we're just starting from a completely different baseline where you would have to have much more rigorous inspections, much more rigorous restrictions on Iran than I think you had in the jcpoa. And I think, I'm not sure Iran would be willing to go for that. And so I think it's not just like, oh, you know, how do we weigh the trade offs of sanctions relief, you know, given, you know, where the regime is maybe at stability wise versus, you know, a nuclear deal. It's like, what do we, what will we actually need today to verify that Iran is not building nuclear weapons? I think it's, I think it's quite different than it was in 2015. And I'm not sure we're in a place where we're going to be able to get that.
- [43:30]
C
And just to be clear Are you confident or not that the administration is reasonably assessing these things?
- [43:41]
A
I am not confident. I hope they are. Again, what we've heard from the administration on the nuclear issue is really focused on no enrichment and getting rid of the material that's in Iran. You know, the 60% enriched material in particular. Those are both important things, right? What, what Iran's enrichment program looks like, if there's any enrichment allowed at all, not having highly enriched uranium, Very, very important things. But those are not the only things that need to be in a deal, right? The jcpoa, again, I just said it's, you know, it would be inadequate today. But the JCPOA went far and beyond enrichment, right? It dealt with things like reprocessing, which is sort of the other pathway to getting nuclear material for, for a bomb. It dealt with that. It dealt with weaponization work and put restrictions around that sort of the steps that Iran would need to take to actually build a device. It had a incredibly robust monitoring regime right across the ent, higher fuel cycle, across centrifuge manufacturing. You can't just kind of have a deal on paper. You need to think through all of the steps necessary for Iran to implement that, to monitor it and to make sure that Iran is not cheating. And I'm not, you know, based on what we're hearing from the administration, I haven't seen that. And I'm worried that there's not the same team in place that has sort of the staff of technical experts to help the lead negotiators think through these types of challenges.
- [45:05]
C
You don't think Steve Witkoff has all the technical stuff in his head?
- [45:11]
A
Perhaps he does. And so that would be. That would be fantastic.
- [45:15]
C
Just checking, because he's got the whole, you know, Ukraine, Russia deal, the Israeli, Gaza stuff, he's got all of that down. So figure maybe just a little section of the brain devoted to Iranian nuclear issues would cover it.
- [45:31]
D
The other thing, I mean, to add to what Eric said, the other piece here that is not irrelevant is that the part of the State Department that has been traditionally tasked with supporting these types of negotiations to study these issues actually took one of the biggest hits in the reorg that happened a few months ago. I'm not suggesting that no one is left to do this work. There are still really great career folks who have a lot of experience and expertise that support this work, but we've lost a lot of continuity at all different levels. And that's not ideal, especially when you have someone like Witkoff whose background is not in nuclear nonproliferation Right, right. And that's not unusual. We, We've had special envoys in the past. And, you know, typically the senior who leads a delegation doesn't necessarily need to be somebody who's done this work for decades and decades. But that's not irrelevant. That's one. The other piece is something was striking to me recently. Somebody quoted Trump saying something to the effect of, you know, I just don't understand why Iran is not ready to capitulate it, given everything that's going on. And I thought to myself, well, gee, if only we had, like, 17 intel agencies who did this for a living and could provide some of these answers. I just don't know that that information flow is. Is there to provide the. The, you know, these are all answerable questions. And I just don't know that they're getting to the places they need to be getting to. And it's not the fault of the people who are doing the work and doing the analysis. It's the fault of leadership and the people who should be making sure that the right information gets in the right place. Ben, the premise of your question there was why shouldn't the administration actually silo off the nuclear from the thousands and thousands of deaths? And I think that actually answers the question, right, that this is not. When a regime comes out and kills tens of thousands of people, it is not business as usual. And in the past, I think with previous rounds of protests, you know, they killed people, you know, in the hundreds sometimes, and the dozens, depending going back decades, thousands. But every time, there were a couple of things that were there that I think meant that negotiations could be siloed off a little bit. One is what Eric mentioned in terms of the status of the nuclear program itself. The second, though, is that there was always, I think, a potential for reform Internally. We can debate whether or not that was actually a viable path, but I think there was. There were efforts to reform the regime internally that doesn't exist anymore. And again, I think there was also popular support for the jcpoa. For example, the Iranian people supported negotiations because they thought that it would actually help make their lives better, because they thought that sanctions relief was key to their economy recovering to allowing for them to start the reform process that they wanted to do. All of that is gone. And to me, for the administration to indicate that the current regime, in its current format, led by people who are willing to just kind of shut down the Internet for several days and then kill this many people, is legitimizing that regime, and if we end up granting them sanctions relief. We're giving them a lifeline economically that we don't need to be giving them in this particular moment. So to me, the situation is fundamentally flipped from even two to three years ago. Eric mentioned the last round of protests that occurred during the Biden administration. I think, you know, even compared to that, things have shifted monumentally domestically. And for that reason, I just don't think that it's a good idea to be. To be giving that platform and that legitimacy to. To that regime.
- [49:14]
C
So what are the chances, Ari, that this is all principally a bluff and that the President has no particular commitment to doing this as a military, actual military campaign, but he wants to encourage that capitulation and he wants to maximize the threat, and then he will probably not back down as per Greenland, but back down in a sense of that what we will see will be something less than what this preparation would cause one to expect.
- [49:58]
D
It's entirely possible. I mean, his track record is one of unpredictability. And. And so I wouldn't be surprised even if we saw something to the effect of Greenland, actually where. And I think the next round of negotiations happen on Thursday this week. If Woodkop came out and said, well, we're making enough progress that we can call this whole thing off, I'm not suggesting that's necessarily the way it would go, but I think there's a spectrum of outcomes, and that is certainly one of those possible outcomes. I do think that it's a really resource intensive and expensive way to just get Iran to show up more seriously at the negotiating table and we can dive into whether or not it actually would do that. I'm sure Eric has thoughts. I think part of the challenge is that the administration often treats military readiness as something that resets after every operation. Kind of like a video game where you die fighting a boss or you lose a lot of health fighting a boss, and then you come out and then you conquer the boss and everything resets? That's not how it works in real life. Right. You don't just magically regain all of that military readiness once you have had a long deployment like this. So we're seeing reports about sanitary issues on the USS Ford where sailors are seeing their toilets overflow. We are seeing reporting about morale being really bad because folks are just stuck on a carrier for a really long time away from family. They're missing family engagements. We are seeing, just this morning, I think we saw reports about the chairman kind of talking about the munitions, the costs on the munitions side that this would take. And the president, of course, dismissed it. But there are significant costs here that really need to be taken into account. And if we need the same, you know, if we need to be going after another contingency, whether it's in Latin America where the administration still wants to be very involved, whether it's Greenland, I don't know, the Indo Pacific, any of these things would require us to be able to have a readiness that we're just hurting. And I think that's a part of the conversation that gets missed a little bit as we talk about buildup. Everybody thinks about assets, but there's people who are associated with it. By the way, assets also need maintenance and so on and so forth, which you can't necessarily do when you're kind of deployed for extended periods of time. So that's, it's a high cost to just kind of signal to Iran that it should get a little more serious about when it's moving. X proposal at the negotiating table.
- [52:31]
C
All right, let's flip rolls here for a minute and have a brief legal conversation and then we can wrap.
- [52:40]
D
All right, Ben, for those of us who are not lawyers, we all have questions. What is the actual legal basis for a potential war with Iran?
- [52:51]
C
Yeah, so I am not a lawyer either, but I do. You dabble, but I do edit lawfare. So look, the legal basis is tenuous both at a domestic level and at an international law level. I cannot think of a good international law argument for the legality of this. You know, last I checked, there was no exception to the, to the UN charters prohibition of the use of force for situations in which you perceive your adversary as weak domestically. And by the way, you see a lot of advantage in attacking them in international negotiations. I suppose the domestic law question is a little bit harder in that there is a line of OLC Office of Legal Counsel opinions that are very permissive with respect to overseas military actions without sanction of Congress in circumstances in which the President deems it in some overriding national interest, either because it's in self defense or because of something else, because there is a limited chance of ground force involvement or US Casualties and because there's some limitation on the duration of it. Right. These sort of incidental strikes. And that has been pushed a number of times pretty aggressively by different administrations. Think of Libya, think of Kosovo. And so I think you could, you can probably push that as a matter of, look, you're not going to get most constitutional law scholars to say, yeah, I think that's fine. But I do think you could probably make an argument based on precedent that, you know, it's not that different from what we've done before. I think how substantial the operation is matters to that conversation. And I also think how you articulate the, you know, is this a self defense, a preemptive self defense interest, or is this a, you know what I think it really is, which is we perceive them as weak, so thump our chests and let's get them. You know, that's a lot. You can't justify it in that language, which is, I think, the real truth of the matter. I do think that there's, you know, part of what's going on here is that the, the traditional atrophying of the requirement that Congress be involved in this sort of thing is pretty extreme at this point. And, you know, it used to be even as recently as 2001, that the President felt that it was important to go to Congress and get an authorization to use force before conducting major military operations against a perceived foe. And by the way, that was also true in the invasion of Iraq in 2003. There's a separate AUMF for that. And I, I do think that mostly if you're talking about the use of this kind of, this number, this volume and this amount of force, it is a relatively recent development that this would be done without consultation with Congress. It is a development that administrations of both parties have participated in, unfortunately. And I think one of the last straws in that regard was when Obama went to Congress to seek Syria authorization and Congress kind of stuffed it in his face. And I think the message that the institutional presidency took from that was kind of don't ask, right? Because you can get it done without it. But if you ask and they say no, then it becomes very awkward. Now that was for a small thing. This is a big thing. And I do think we've really had atrophy in the muscles of kind of congressional involvement in major military operations. That's very democratically unhealthy. All right, we are going to leave it there. Eric Brewer, Ari Tabatabhai, thank you both for joining us today.
- [58:01]
A
Thanks for having me.
- [58:02]
D
Thanks, Ben.
- [58:06]
C
The Lawfare podcast is produced by the Lawfare Institute Institute. You can get ad free versions of this and other Lawfare podcasts by becoming a material supporter of Lawfare at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Jen Patia and our theme music is, is from Alibi Music as Always. Thanks for listening.
- [58:48]
B
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