MR KIRBY: Matt.
MR. LEE: — and others – that they’re wrong and your interpretation is right. And if you can’t —
MR KIRBY: We —
MR. LEE: — do that, then you’re going to lose. You’re not going to be able to get anything through the Security Council.
MR KIRBY: We’re comfortable we have a strong case.
MR. LEE: Well, no one else —
MR KIRBY: These launches —
MR. LEE: — these other people don’t —
MR KIRBY: These launches are clearly in defiance of that resolution. There’s no question about it. And again, we can have – you can have a debate about “shall not” or “will not” or “called upon to not do it” or “violation” or not. And that’s great, and I can debate that with you all day happily, and I’m happy to do that. What I’m telling you is we believe that there – these actions are not consistent with the obligations that they are called upon to meet in that resolution, and therefore, we have a case going forward and we want the council to bring it up and have that discussion. And look, let them have that discussion, and we’ll see where it goes. But as Ambassador Power said this morning, and the Secretary very much associates himself with her views, is that we – there is a case to be made here. Clearly these are in defiance with that resolution.
MR. LEE: Yeah, but the point is —
QUESTION: Why —
MR. LEE: — is that it’s very difficult to see how you can claim that, one, the two resolutions say the same thing when they clearly don’t, and —
MR KIRBY: I didn’t say that the language was exactly the same, and I did not say it said the same thing.
MR. LEE: Well, you had the Secretary and other people up on the Hill when people – when members of Congress asked about this language —
MR KIRBY: I did not say —
MR. LEE: — asked whether this was binding, and you made – they made the same argument that you’re making now and that Ambassador Power made. However, the language is clearly different, and so I don’t know how you’re able to say that they are in violation of something that they’re only being asked to do. They’re not being told not to do it; they’re being asked not to do it. So your argument, unless you can get into the back and forth of it and make a convincing argument that – for why the Iranians should be punished for this —
MR KIRBY: If we’re saying – you’re saying that because the resolution says we call upon them to not participate in any activity, ballistic missile-related, that that could lead – that can lead to the development of nuclear warhead capability (inaudible), right?
MR. LEE: Yeah.
MR KIRBY: So does – do you interpret that to mean that it – that that sentence means it’s okay to do it?
MR. LEE: Uh, no, but I interpret it —
MR KIRBY: Okay, right.
MR. LEE: — hold on —
MR KIRBY: No, no, no, no.
MR. LEE: But wait a second. But I also don’t interpret it, if they go ahead and do it, you don’t – I don’t interpret it as to say that Iran is definitely in violation and because of that is definitely subject to more penalties.
MR KIRBY: But clearly you can see, given the language as it’s written in 2231, and given their activity, that it is absolutely not in – it is not in keeping with that language.
MR. LEE: But look, this is what – but diplomats negotiated this for – maybe not long enough, if you want to – if the case that you guys were trying to make in the negotiations is that they’re the same, because they’re clearly not the same.
MR KIRBY: I’m not – I am not – I’m – look, I’m not a – I didn’t do well in grammar, so I’m not going to debate with you over “shall not” versus “calls upon to.” But even you admitted that by the language as it’s written, it wouldn’t be okay for them to conduct ballistic missile launches.
MR. LEE: But —
MR KIRBY: Even by your interpretation of the language. So, okay.
MR. LEE: Yeah, but being okay —
MR KIRBY: So let’s talk. Let’s have a discussion —
MR. LEE: — and not being okay is not something that’s punishable —
MR KIRBY: Let’s have a discussion in the council.
MR. LEE: — because this is language that is important for —
MR KIRBY: Right.
MR. LEE: — and it has legal implications. And —
MR KIRBY: And that’s why – precisely why —
MR. LEE: — “called upon” does not have a legal implication.
MR KIRBY: It certainly does in terms of —
MR. LEE: It does because you want it to.
MR KIRBY: No. No, it’s not – not because we want it to, Matt. It says that they are – it calls upon them to refrain from activity, ballistic missile activity, particularly as related to nuclear warhead capability. We believe that these tests are in defiance of – definitely not consistent with that language, and therefore it is exactly —
MR. LEE: Can I follow up on this?
MR KIRBY: — no, just let me – please let me finish this thought – that is exactly why we think the council should take it up. And let the council have this debate and discussion, and see where that goes. That’s why the process is set up the way it is.
MR. LEE: You just don’t want to have it here? You’re prepared to have it at the Security Council?
MR KIRBY: Yes, of course.
MR. LEE: Okay.
MR KIRBY: I mean, Ambassador Power said that.
MR. LEE: I want to go back to your words from last week, where you explicitly said, “If these reports are true, then yes, they are in violation of 2231.” So last week, you argued that it was a violation; now you’re using very different language that it is not consistent with or that it is in defiance of. Why did you say it was a violation last week unless you were certain that it was a violation, and why have you changed the language to “not consistent with” and “in defiance of”?
MR KIRBY: First of all, last week we weren’t sure whether the reports were true. And —
MR. LEE: But you said “if” they were true. You were acknowledging that you weren’t certain if the reports were true. We’re talking —
MR KIRBY: Again, if you would just let me finish my answer, I can get this to you, okay?
MR. LEE: Okay. Please. Yeah.
MR KIRBY: As I said, last week we weren’t sure. Now we have more information that leads us to believe that they did, in fact, do these launches. And on a more careful reading of the language, I am being more specific in my answer today, okay?
MR. LEE: Why weren’t you – I mean, these are not trivial matters and —
MR KIRBY: I didn’t indicate that it was trivial, not in the least.
MR. LEE: No, but you apparently mischaracterized it a week ago, right? You said it was a violation. Now you’ve looked at it more carefully, you’ve concluded it’s not, so —
MR KIRBY: There – again, I’m not going to get into a debate over verbs here. There is no doubt —
MR. LEE: But verbs are important.
MR KIRBY: There is no doubt that now we know these launches occurred. There’s no doubt. Look at the language yourself. You can’t sit here and tell me —
MR. LEE: I have; I read it last week.
MR KIRBY: — that, given that they’ve done these launches, that they are somehow in full compliance with their obligations under that resolution. There’s no way – there’s just simply no way you can make that determination.
So I’m not going to debate the verb, okay? I have – a more careful reading since last week has led me to use the language I’m using today, but that doesn’t by any means undermine the argument that they are still not acting in accordance with their obligations.
MR. LEE: Verbs are important. And when you adopt a position from the podium that something is a violation, you’re speaking on behalf of the U.S. Government.
MR KIRBY: I didn’t say it was a violation last week. I said if it was true —
MR. LEE: You said violated – if it was true, it violated. You’ve now concluded that it is true.
MR KIRBY: And I’ve also concluded – we have concluded that it is not in keeping with their obligations and therefore we’re going to have the council take it up.
MR. LEE: But it’s not a violation?
MR KIRBY: Look, I’ve answered this question 10 different ways today.
Yeah.
QUESTION: Different topics?
MR KIRBY: Yeah.
MR. LEE: Well, wait, wait. Hold on. I just want to – is there a distinction here between what you’re saying and what – Arshad’s question? In “not in keeping with,” it seems to me you think it’s a violation still, but I don’t know. Maybe you’re – maybe —
MR KIRBY: We believe that their activity, and even you admitted, is not consistent with what they are called upon to do in the resolution.
MR. LEE: Right. But —
MR KIRBY: Therefore we believe – and because since we now determined that these launches did occur —
MR. LEE: Right.
MR KIRBY: — with ballistic missile technology that they shouldn’t be testing, we believe that it’s important for the council to take this up. And the council can have this discussion about whether it was technically a violation or not. As I was speaking last week, I didn’t know whether the —
MR. LEE: Right, right.
MR KIRBY: — we couldn’t even confirm that the launches occurred.
MR. LEE: No, no. But —
MR KIRBY: So we’ll have the council take it up.
MR. LEE: So in other words, the U.S. is not taking a position now whether Iran violated the resolution or not?
MR KIRBY: We are certainly taking a position that these actions are – that they are against the obligations that they have —
MR. LEE: Does that – but does that mean “violate?”
MR KIRBY: I’m not going to get into the technical definition of “violate.” Clearly, what they’ve done here is in defiance of their obligations under that resolution, and we believe the council should take it up.
MR. LEE: All right. But see, the thing is is that it does not seem to be an obligation. You’re just calling on them not to. So that doesn’t – it would – that’s like saying, “You know, Iran, it would be really nice if you didn’t do this.”
MR KIRBY: So the counterargument would be that we just ignore it?
MR. LEE: No. No, no. I’m —
MR KIRBY: Oh, of course, not. We want to have it taken up (inaudible).
MR. LEE: I’m not trying to make a counterargument, and it’s not me who you need to convince about this.
MR KIRBY: Apparently it is.
MR. LEE: Whether I think it —
MR KIRBY: Apparently it is you —
MR. LEE: Whether I think Iran has violated the resolution or not is completely immaterial to what the argument is being made on the other —
MR KIRBY: We believe – we believe that —
MR. LEE: They did.
MR KIRBY: — based on what they’ve done, there is a case to be made in the council that they are not in compliance with their obligations under that resolution.
MR. LEE: Okay. And do you – is it your position then that they violated the resolution and should be subject to additional sanctions, or —
MR KIRBY: That is a matter for the council to take up, but we want —
MR. LEE: Yeah. But I’m not asking what the council thinks.
MR KIRBY: We want —
MR. LEE: I’m asking what the U.S. thinks.
MR KIRBY: I’m not going to get ahead of the report that we’re going to file.
MR. LEE: Okay.
MR KIRBY: We haven’t done that yet, okay?
MR. LEE: All right. So this afternoon?
MR KIRBY: So let’s let that happen. Let’s let that happen and then —
MR. LEE: Later this afternoon I can come back and ask the same thing?
MR KIRBY: — and then we can talk about the details of what’s in our report.
MR. LEE: All right. How do – how can you make a case that negotiators, the U.S. negotiators, at the UN in changing the – or allow – accepting a change in the language from the very straightforward “shall not undertake” to “is called upon not to undertake.” How do you make the case that that wasn’t a concession?
MR KIRBY: Because I wasn’t in the room when that was negotiated, Matt, I don’t know what went into the actual drafting of the language. But I mean, we – and I under – and I get the utility of a rhetorical exercise here to try to parse out the language, and I agree with Arshad, frankly, that language does matter. But there’s no question when you look at the language as written, what they’ve done definitely defies the obligation that they have under the resolution, and that’s why we think the council should bring it up.
MR. LEE: Except that —
MR KIRBY: And I can’t speak to how that language was derived.
MR. LEE: Where does the word – where does the obligation – okay. Where does – where do you get the word “obligation” from, or “obliged”? Iran is obliged or Iran is obligated. From 2231? I don’t see that – how that —
MR KIRBY: It calls upon Iran not to undertake any launches of ballistic missiles designed to be capable of delivering a nuclear weapon.
MR. LEE: But “calls upon”?
MR KIRBY: If I call upon you to stop asking me these questions, wouldn’t that —
MR. LEE: And that doesn’t work, does it? (Laughter.)
MR KIRBY: All right, true. It’s true, that never does work.
QUESTION: (Off-mike.)
MR. LEE: It has zero effect.
MR KIRBY: So you are in violation of my call. (Laughter.) No, but if I —
MR. LEE: All right, I’ll drop it.
MR KIRBY: But if I call upon you to do something or not do something, I’m clearly stating an intent of the international community for you not to do something.
MR. LEE: What you would like, it’s something that you would —
QUESTION: He’s in defiance of your call.
MR KIRBY: To comply or not comply.
MR. LEE: But you would – but it’s something that you would like —
MR KIRBY: And once again, you are not complying.
MR. LEE: Yes, but you would like to see happen, not something that is punishable by —
MR KIRBY: Let’s let the report go up to the council and we’ll go from there, guys.
MR. LEE: All right, fine. Obviously, we’re not going to get anywhere on this.
Which interlocutor had the better argument? The best Kirby could come up with was that the missile launchings by Iran were “not consistent with” or “in defiance of” the terms of the resolution, but not that those actions were a violation of the resolution. The top lawyers from our State Dept. could not anticipate that the new language would be a problem? Or worse, they knew — and didn’t tell the American public the truth about what Iran was and was not committing to.