On October 12, the Wall Street Journal published an op-ed arguing that the Joint Comprehensive Plan of Action (JCPOA) violates a U.S. law, American Medical Isotopes Production Act (AMIPA) of 2012.

We were almost grateful to see this new claim, as it becomes tiresome explaining the errors in more common critiques of the JCPOA.  Unfortunately for the authors – and inexplicably for the editors – the argument is premised on a series of claims that are easily, demonstrably false.

Working from non-alternative facts, there is not much to link the JCPOA and AMIPA.  To the extent that they are related, the JCPOA modestly advances AMIPA’s intent, which is to reduce the commercial use of highly enriched uranium, thus reducing proliferation risk.

Let’s start with the most important claim, that the JCPOA “specifically permits Tehran an unlimited right to generate highly enriched uranium for use in medical isotope production.”

In fact, the JCPOA specifically prohibits Iran from generating any highly enriched uranium for any purpose.  For 15 years, Iran is only allowed to enrich uranium up to 3.67% U-235, and it is only allowed to have a small amount of even that low enriched uranium, the equivalent of 300kg UF6.

This is wholly consistent with Iran’s plans for the production of medical isotopes (in particular, Molybdenum-99, or Moly-99).  Its only current medical isotope production is at the Tehran Research Reactor, which uses both fuel and targets enriched to a little under 20% (low enriched uranium both on standard parlance and by the definitions in AMIPA).  Iran is prohibited from producing the 20% fuel under the JCPOA, but they can use limited amounts of imported finished fuel under controlled circumstances. It is possible that the future Arak reactor could be used to produce Moly-99, but it will use fuel enriched to no more than 3.67%.

Laura Holgate
Laura Holgate is a senior fellow at Harvard’s Belfer Center for Science and International Affairs and was the U.S. representative to the Vienna office of the United Nations and the International Atomic Energy Agency.

What about the authors’ next claim, that the U.S. is legally obliged “to curtail such foreign medical isotope production.”

The law does not say any such thing.  AMIPA obliges the U.S. to support the domestic production of Moly-99 that does not use HEU.  At some point in the future, when U.S. medical needs can be met with Moly-99 not produced using HEU, it will bar the export of U.S. HEU to foreign Moly-99 producers.  None of this has anything to do with Iran, both because Iran does not use HEU and because the U.S. would not provide HEU to Iran for this or any other purpose for reasons of law and policy much deeper than AMIPA.  If anything, Iranian production of Moly-99 using LEU and under the strict inspection regime created by the JCPOA helps meet the goal of AMIPA by meeting a small part of international demand for Moly-99 without using proliferation-sensitive HEU.

Surely, though, we should be worried about the authors’ frightening insinuation that, thanks to the JCPOA, Iran is “Iran is free to join with other producers to control supply and price,” presumably leaving U.S. patients at risk?

Production of Moly-99 is clearly “peaceful use” under the Nuclear Non-Proliferation Treaty, and no one would have joined us in trying to deny it to Iran. How Iran chooses to market Moly-99 has nothing to do with the JCPOA, but the idea that Iranian production of Moly-99 would generate such market power that it would interfere with U.S. entrants to the market is laughable.

It hardly seems worth disputing any of the remaining claims, since even if they were true, the authors’ conclusion that the JCPOA violates AMIPA would still be false.  But, since they bothered to make further misstatements, we will bother to correct them.

They claim that the JCPOA commits the U.S. “to assist Iranian medical isotope development with technology transfer, project finance, export credits, or other forms of investment.”

It does not.  There are several parts of the JCPOA that describe potential civil nuclear cooperation, none of which contain any such commitments, and any potential projects are specifically limited those legally permissible under national law: Annex III para 2 states “All civil nuclear cooperation projects under this JCPOA will be mutually determined by the participating states and will be consistent with the JCPOA and the national laws and regulations of the participating parties.” It was well understood that U.S. participation in civil nuclear projects in Iran would be very limited for both policy and legal reasons.  These legal constraints derive from the Atomic Energy Act, not the AMIPA, and prevent any transfer of nuclear technology.

Specific language on nuclear medicine and radio isotopes is similarly broad, for example Annex III para 11 (emphasis added), “E3/EU+3 parties, as appropriate, are prepared to cooperate with Iran to improve the utilization of nuclear medicine in Iran in order to enhance Iran’s expertise in diagnostic imaging and radiotherapy, increase the availability of medical radioisotopes for diagnosis and treatment of Iranian citizens, and facilitate Iran’s participation in the broader international scientific and nuclear medicine community. Such cooperation may include….”

The U.S. co-chairs (with China) the working group guiding the redesign of the Arak reactor, because it is in our vital national security interest to ensure that the redesigned Arak reactor meets all current best practice so that it cannot be used to produce plutonium in quantities useful for building nuclear weapons.  While the redesigned Arak reactor might be used to produce Mo-99, the U.S. role in the working group is not to facilitate medical isotope production. The U.S. is not providing financial support or technology transfer of any kind to the Arak redesign effort.

Finally, the authors complain that “the Obama Administration conspicuously failed to fulfill [AMIPA’s] requirements” because Moly-99 is not being produced in the U.S. and the U.S. continues to export HEU for Moly-99 production.

But the law, written by sensible people, did not demand immediate disruption to this critical medical market.  It calls for a long process of study and industrial development, which the Department of Energy is supporting with funds and technology.  NNSA has provided over $80M to 4 US-based projects (out of a total commitment of $100M) that are developing non-HEU technologies to manufacture Moly-99.  These technologies are expected to begin production in the United States in the next few years.  The Department of Energy has reported all of this to Congress regularly, as required. AMIPA does not foresee ending export licenses for HEU until at least 2020.

This was fun.  But unlike imaginary Iranian HEU or imaginary U.S. laws, the risks of an Iranian nuclear program unconstrained by the limits and inspections agreed in the JCPOA are all too real.  Let’s keep the focus where it matters: making sure Iran continues to comply fully with its JCPOA commitments.

This article was originally published in Arms Control Wonk.