Carter's Last Capitulation
On January 19 and 20, James Earl Carter, Jr., then President of the United States, brought to what he evidently regarded as a happy conclusion a disgraceful episode in the history of two nations, Iran and the United States. He persuaded the government of Iran to accept several billion dollars and various humiliating and possibly unconstitutional promises by the United States in exchange for 52 Americans, mainly diplomatic personnel, whom Iran had kidnapped on November 4, 1979 and held in close captivity ever since.
The facts are hardly in dispute. Shortly after the Shah’s flight and the Ayatollah’s accession to supreme power, a band of so-called “student militants” stormed the American embassy in Teheran, captured all the people therein, and seized and rifled through everything on the premises, including diplomatic correspondence and files. Three other American diplomats were imprisoned in the Iranian Foreign Ministry. Just who the assailants were is less clear. They were “militant” (i.e., violent), all right, but it is questionable whether they were students. They represented themselves as super-Muslims, but it is hard to avoid a suspicion that some of them were disguised Communists. Certainly they never attacked Soviet premises or personnel, though that restraint may have been merely prudential. What is relevant, however, is not the identity of the actors, but their act.
So far, the seizure was only one more instance of terrorism, not essentially different from similar attacks on American embassies in Pakistan and the Sudan; it could not be called a violation of international law. But almost immediately the Ayatollah ratified (though he may not have directly ordered) the actions of those whom he called “our dear young people.” Kidnapping diplomats and holding them hostage by authority of the host state’s government was something new, never done even by Hitler or Stalin. It is hard to imagine a more flagrant violation of the law of nations.
First, the Vienna Convention on Diplomatic Relations, to which both Iran and the United States are signatory, provides in the most explicit terms that embassy premises and property shall be immune from search; that the embassy’s archives, documents, and its official correspondence shall be inviolable; that the receiving state shall insure to all members of a diplomatic mission freedom of movement; and that it shall permit and protect their free communication with their own government. Article 29 is worth quoting:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving state . . . shall take all appropriate steps to prevent any attack on his person, freedom, or dignity.
Finally, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.” (Spokesmen for the Iranian government were constantly threatening to try the hostages as “spies” and maybe execute some of them, although these threats were probably intended only as bargaining tactics and to inflict mental torture on the captives.) All of the hostages were within the Convention’s protection. I have mentioned only the most important violations of the treaty: practically all its other substantive provisions were also breached.
Although it may be redundant, it should also be pointed out that Iran’s actions were similarly in flagrant violation of its obligations under the Treaty for the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, which in essence requires the signatories either themselves to try or to extradite for trial elsewhere terrorists, like the “student militants,” who commit such crimes. The only reason that the Iranians did not violate the United Nations’ Resolution Against the Taking of Hostages was that that treaty was not opened for signatures until December 4, 1979, at which time the Ayatollah himself would not have had the effrontery, even if he had had the desire, to sign it.
Perhaps even more basic is the fact that, as stated in the preamble to the Vienna Convention, “peoples of all nations from ancient times have recognized the status of diplomatic agents.” To be specific, we know that they have done so for at least 2,500 years. Herodotus tells us that when Xerxes, the Persian King of Kings, sent heralds to Athens and Sparta to demand earth and water (as symbols of submission) the Spartans threw them down a well, and the Athenians into “the pit of punishment,” bidding them take earth and water and carry it to Xerxes. What punishment this brought upon Athens the Father of History did not know, but the god of heralds, who had a temple in Sparta, thereupon subjected Sparta to such a series of alarming omens that the city sent two noble Spartan volunteers to Susa, the Persian capital, to atone with their lives for the slaying of the heralds. But Xerxes sent them home, saying that “he would not act like the Lacedaemonians, who, by killing the heralds, had broken the laws which all men hold in common.” The comparison between the Ayatollah and the Achaemenid kings of Persia is not to the former’s advantage. (We are also told that the ancient Persians taught their sons to ride, to shoot the bow, and to speak the truth. What the state of horsemanship and archery is in Iran I do not know, but its mullahs obviously do not count veracity among the Islamic virtues. However, in fairness it must be said that the Ayatollah’s lies display a gorgeous fantasy, far more entertaining than the drab products of the Pravda factory.)
Iran, therefore, is disgraced by the commission of a monstrous crime against “the laws which all men hold in common.” The disgrace of the United States rests on a different base, its acquiescence in that crime. What the President should have done, of course, was to deliver an ultimatum and then, if the hostages were not released by a specified date, resort to force, as the Israelis did at Entebbe and the West Germans at Mogadishu. At the very least, he should have recognized that in certain circumstances the lives of diplomats, like those of soldiers, are at risk; and he should have honored the basic principle that a government should never make any concession to terrorists, whether governmental or private, and should negotiate with them only to persuade them to surrender or to gain time to prepare military measures. Mr. Carter preferred to rely on appeasement. The principal peaceful measures which he and Cyrus Vance, his Secretary of State, took included the following:
- Iranian assets under American control were frozen. This was an obvious and appropriate sanction, but by itself inadequate. It did not seriously inconvenience the Iranian government for more than a year.
- Imposition, on April 7, 1980, of a trade embargo on Iran. Some of our allies were persuaded to do likewise, although without much enthusiasm. These restrictions were easily evaded and do not seem to have bothered Iran so long as its supply of hard currency held out. Carter’s order not to buy Iranian oil, imposed shortly after the embassy seizure, was nearly meaningless, since Iran’s oil production soon fell to a small fraction of what it had been under the Shah, and was still further reduced by the Iraqi attack in September 1980.
- Also in April, the United States broke diplomatic relations with Iran. Why it took so long to take this obvious step has never been explained. No serious effort was made to deport the pro-Khomeini Iranian students in this country, many of whom were staging noisy and provocative demonstrations. Although large numbers of them had dropped out of school or had overstayed their visas, the American Civil Liberties Union came to their defense so vigorously and interposed so many legal obstructions (ultimately rejected by the courts) that only about 1,000 out of some 50,000 Iranian students were actually deported. (It should be emphasized, however, that many or most of the 50,000 did in fact behave themselves and were not subject to deportation. The vast majority, including Khomeini supporters, seemed to prefer life in the domain of Satan to sanctity in the Imam’s theocracy.)
- The case was brought to the United Nations Security Council, which (for a wonder) called upon Iran to free the hostages. The gesture was, of course, entirely futile; Iran simply ignored the whole proceeding. When a majority of the Council voted to impose sanctions, the Soviet Union interposed its veto. Secretary General Waldheim went to Teheran, where his car was mobbed, he was not allowed to see the hostages, and he was denied admission to the presence of the Ayatollah. Thereafter he formed a commission, which accomplished nothing and quietly faded away.
- Resort was next had to the World Court, where the Attorney General of the United States, wearing a morning coat, argued the obvious to the judges, who unanimously ordered Iran, which had not bothered to show up in court, to release the hostages. The order was, it goes without saying, ignored—an experience to which the Court has become accustomed.
The chronicle of silliness, futility, and weakness could be prolonged. Some of Mr. Carter’s tactics would be funny, if they were not so sad. Early on, he dispatched Ramsey Clark to Teheran to plead with the Ayatollah. Khomeini (who probably did not realize how much pro-Iranian propaganda Clark could have been counted on to generate) refused to see him, and he got no farther than Turkey. The former Attorney General did not actually reach Teheran until June 1980, when he was the life and soul of a hate-America conference. Similarly, at Christmas 1979, some of the hostages received the ministrations of the Reverend William Sloane Coffin, Jr., and a couple of like-minded American clergymen acceptable to the terrorists. The President did his bit by urging Americans to fly flags and send Christmas messages to the captives. He even went to the length of refusing to light the White House Christmas tree.
At the end of April 1980, almost six months after the kidnapping, Carter finally attempted what he should have done at first—a military raid to rescue the hostages. It was, of course, too late and too little, ill-planned and worse executed, as we know in the light of hindsight. The circumstances were undoubtedly much more difficult than those which the Israelis faced at Entebbe and the Germans at Mogadishu, for the kidnappers (who, of course, included the government of Iran) were numerous and the hostages were held in the middle of Teheran, far from the sea or any airport. Probably some or all of them would have been killed even if the operation had gone as planned—though some Israeli generals were quoted as saying that they thought it could have been successful.
On the other hand, the military resources of the United States were—or at least should have been—much greater than those of Israel or West Germany. Clearly there were other and perhaps better military options, ranging from the relatively mild one of a naval blockade to the destruction of Iran’s air force, navy, and key military installations, with threats of more to come unless the hostages were promptly released.
Although Iran had, of course, committed and was continuing an act of war, and the United States could properly have taken whatever unilateral measures were permitted by the law of war, no such thing was threatened or attempted. Mr. Vance’s reaction to the solitary and inadequate effort to use force was in fact to resign in virtuous indignation.
Thus the outrage proceeded to its sorry end. The Iranians, perceiving that the incoming President was likely to be a tougher customer than the outgoing one, decided to bargain seriously with the latter in order to get as much as they could before he left office. Although they did not get the $24 billion which was their original asking price (possibly because it was constitutionally impossible for Carter to pay it), they got quite a lot. Crime paid.
The contention of Messrs. Carter, Mondale, Muskie, and the rest of the surrender team—that Iran was given only what it already owned—cannot survive examination of the agreement with Iran which Deputy Secretary of State Warren Christopher signed in Algiers on January 19. The agreement is complex, sometimes vague, and the parts relating to American bank loans on which Iran is in default have not (as of this writing) been published. Whether Iran would receive several hundred million dollars worth of military supplies which had been bought and paid for before the revolution was left obscure. The United States had proclaimed its neutrality in the war between Iraq and Iran, and the delivery of a lot of weapons to Iran would have been at least embarrassing. (Shortly after the new administration took office, Secretary of State Alexander M. Haig said unambiguously that no arms would be delivered to Iran.)
Still, it is possible to itemize the major American concessions to terrorism. I shall describe them in simple, but I hope not oversimplified, terms.
Claims of Americans for breach of contract, expropriation of property, etc. There are more than 300 such American claimants. Many of them have filed suit in American courts and obtained attachments of Iranian property, such as bank deposits, in the United States to insure satisfaction of judgment. The agreement purports to cut off all such litigation and to wipe out the attachments on the property handed over to Iran: “The United States agrees to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration.”
In exchange for their rights under American law, the claimants are relegated to an “International Arbitration Tribunal,” composed of members one-third appointed by Iran, one-third by the United States, and one-third selected by mutual agreement of the members so appointed. To insure payment of any awards the Tribunal may make against Iran, that country will pay $1 billion of the funds transferred to it into a “security account” in Algeria, to be used only for that purpose. Whenever the amount in the “security account” drops below $500 million, Iran will put in funds sufficient to bring it up to that figure. What would happen if Iran breached that commitment is unclear.
But the contingency may not arise, for I think it possible that the Tribunal will never function at all. Iran is likely to propose as “impartial” members Libyans or Syrians, for example, to whose appointment the American members could not (I trust) possibly agree. How such a deadlock would be resolved is not apparent in the text of the agreement.
The question of the constitutionality of this abrogation of creditors’ legal rights is complicated, there are few legal precedents, and lawyers disagree, but it is at least doubtful that the President has power to take any such action. This issue is pretty certain to be raised in American courts by many of the claimants, who will contend that President Carter’s action deprives them of property without just compensation, in violation of the Fifth Amendment, and that the executive has no power to abrogate the courts’ jurisdiction. Presumably government lawyers, as distinct from lawyers paid by Iran, will have the unsavory job of trying to defeat the suits brought by American claimants. If the claimants win, American taxpayers will presumably foot the bill, for there will be no way of retrieving the assets handed over to Iran.
The United States also agreed promptly to withdraw all claims pending against Iran before the International Court of Justice. Presumably Iran insisted on this merely to give Mr. Carter’s nose an additional rub in the dirt, for it would certainly pay no attention to any orders that Court might issue.
Banks. American banks, including their European branches, controlled something more than $5 billion in Iranian deposits. They were owed $4-5 billion on defaulted loans to Iran. (The defaults were not deliberate, since Iran’s assets were frozen.) Under American law the banks could have paid themselves by “setting off” what they owed Iran (i.e., the deposits) against what Iran owed them, and paying Iran only the surplus. Except in certain types of bankruptcy, not relevant here, the banker’s right of set-off is virtually foolproof. Yet in this case the banks gave up their right of set-off.
Although I have seen no text of an agreement on the bank loans, the New York Times has reported without qualification or citation of sources that about $5 billion of the returned assets will be used to repay American and other Western banks. If this is so, the probable reason for Iran’s agreement is simply its need to preserve the possibility of further borrowing. If Iran does not pay, I do not know how the banks can collect. There is a suggestion, adumbrated in the Times, that some bank managements went along because they believed that, even if their banks never saw their money again, the President’s order to return the frozen deposits would be a defense to stockholder suits against directors. Maybe, maybe not.
Assets of the Shah and his family. The United States agreed to freeze any assets in the United States which are owned by the Shah’s estate or his “close relatives,” and to enforce the freeze order by civil and criminal proceedings.
Similarly, the United States must order everyone within its jurisdiction to report to the Treasury for transmission to Iran within 30 days everything he knows about any such assets, and must enforce this order too by civil and criminal proceedings. “The United States will make known to all appropriate United States courts that in any litigation [concerning such assets] the claims of Iran should not be considered legally barred either by sovereign immunity principles or by the act of state doctrine and that Iranian decrees and judgments relating to such assets should be enforced by such courts in accordance with United States law. As to any judgment of a United States court which calls for transfer of any property or assets to Iran, the United States hereby guarantees the enforcement of the final judgment to the extent that the property or assets exist within the United States.” Another dirty job for government lawyers, and one of very dubious constitutionality.
But Iran may not gain much from these concessions. The Pahlevi family owns, probably through a tangled web of corporations, some valuable real estate and perhaps other assets in the United States. But I think it intrinsically probable that most of their wealth is in Swiss banks and similar safe hiding places whose like does not exist in this country.
Claims of the hostages and their families. “The United States . . . will . . . bar and preclude the prosecution against Iran of any pending or future claims of the United States or United States nationals arising out of events . . . related to (a) the seizure of the 52 United States nationals on Nov. 4, 1979, (b) their subsequent detention, (c) injury to the United States property or property of the United States nationals or their property within the United States Embassy compound in Teheran after Nov. 3, 1979, and (d) injury to the United States nationals or their property as a result of popular movements in the course of the Islamic revolution in Iran which were not an act of the government of Iran. The United States will also bar and preclude the prosecution against Iran in the courts of the United States of any pending or future claims asserted by persons other than the United States nationals [e.g., the hostages' families] arising out of the events specified in the preceding sentence.”
Many epithets and expletives, including “unconstitutional,” come readily to mind, but this provision can stand without characterization or comment. If the hostages are compensated, as they should be, it will be done by American taxpayers.
There are other objectionable concessions, but these are enough to show that the Carter administration surrendered far more than property to which Iran was lawfully entitled and that its assertions to the contrary were simply untrue.
Perhaps the most depressing aspect of the whole miserable business was that the surrender to terrorism was negotiated without audible objection by the New York Times, the Washington Post, or any of the other creators of orthodox liberal opinion. They all thought that anything was preferable to force. The Times, after the agreement had been signed, found it to be “tolerable,” and “neither triumph nor humiliation,” but nonetheless came boldly out with a declaration that “No government or terrorist group, whatever its domestic or diplomatic purpose, should be left to think it can profit from seizing and abusing American citizens. The final deal with Teheran, unless fully examined and properly explained, might well create the wrong impression.”
Might? It is difficult to see how governments like Libya, Vietnam, or North Korea can fail to draw the conclusion from Carter’s capitulation that the way to extract concessions from the United States is to kidnap its diplomats and threaten to shoot them as spies.