(Photo: Br3nda / flickr)
Washington - An Iranian assertion that construction on its second enrichment facility began only last year and further analysis of satellite photos of the site have cast fresh doubts on the Barack Obama administration's charge that the construction of the plant near Qom involved a covert decision to violate Iran's obligations to report immediately to the International Atomic Energy Agency (IAEA) on any decision to build a new facility.
At a Sep. 25 briefing on the site, senior administration officials refused to provide any specific information to back up the claim that construction had begun before the March 2007 Iranian withdrawal from an agreement requiring that it inform the IAEA immediately of any decision to build a nuclear facility.
The U.S. charges on the Qom facility, coming a week before the first opportunity for negotiations with Iran on a full range of issues since 1981, appear to have been a deliberate ploy to make the Obama administration appear tough and on the offensive when the talks started.
Iran's Vice President Ali Akbar Salehi, who is also the head of Iran's Atomic Energy Organisation, told a news conference Tuesday that his agency took over a military ammunition dump in 2008 to begin work on the enrichment facility near Qom.
Meanwhile, a new photo analysis by the Washington-based Institute for Science and International Security (ISIS) of the Qom site in 2004 and 2005 suggests it was not dedicated to building a uranium enrichment facility at that time.
In a brief analysis posted on the ISIS webpage Tuesday, Paul Brannan, a specialist in interpreting satellite photography at ISIS, said he believed that the site on which the Qom enrichment facility was later constructed was "originally a tunnel facility associated with Iran's military" rather than a "construction site for a uranium plant".
Brannan wrote that there was evidence of some construction between June 2004 and March 2005, but that the pace appeared "slow". That tunneling activity, Brannan wrote, "may not have been originally associated with the later construction activity for the suspected uranium enrichment site".
Brannan told IPS it is "technically possible" that the relatively slight changes he saw from 2004 to 2005 were associated with the enrichment facility, but said the images of the site at that stage appear similar to many other tunnel facilities built into a mountain that are maintained by the Iranian military.
"The Iranian military has hundreds of these around Iran," Brannon said.
Brannan said he is now in the process of obtaining satellite imagery for 2006 through 2008 in order to establish more clearly when the construction on the facility began.
In his press conference, Salehi described the second enrichment facility as "a small version of Natanz" - Iran's large-scale commercial enrichment plant - and explained it as a measure aimed at ensuring the continuity of the programme if its nuclear sites were attacked.
If construction on the Qom site did not begin until 2008, as Salehi claimed, it would have been long after Iran had withdrawn from an agreement with the IAEA - the so-called "modified Code 3.1" - obligating it to report design information on nuclear facilities as soon as the decision is made.
That would further suggest that Iran is serious about remaining in compliance with its obligations under the Safeguards Agreement.
Iran notified the IAEA in March 2007 that it intended to revert to the earlier version of the "Code 3.1" Subsidiary Arrangement with the agency, which obligated it to provide design information at least 180 days before introduction of nuclear material into the facility. Subsidiary Arrangements are codicils to the Safeguards Agreement - the document which defines the basic transparency and other obligations of each IAEA member state.
In a briefing for reporters last week a "senior administration official" asserted that Iran had begun construction on the Qom enrichment facility "with the intent that it be secret", thus giving Iran "an option of producing weapons-grade uranium without the international community knowing about it".
A key element of that charge was that Iran had violated the "modified Code 3.1" agreement at the very time it had been ostensibly implementing that agreement.
"We know construction of the facility began even before the Iranians unilaterally said they did not feel bound by that obligation," the official declared.
But the briefing official seemed to confirm the conclusion of the ISIS analysis of the satellite imagery by suggesting that the site was considered as an enrichment site even though there was evidence that it had a different function. "[A]t a very early stage of construction," the official said, "a facility like this could have multiple uses."
There were other hints as well that the U.S. charge was not based on visual evidence of construction but on the supposition that the site was intended for the enrichment facility, even though little or no construction was actually taking place.
"[W]e wanted to wait until the actual construction caught up with that intent," said the official at one point.
The unnamed senior official declined on three different occasions during the briefing to answer questions on when construction on the facility had started.
When a reporter asked directly, "Do you have a clear idea of when the construction started?" the official flatly refused to answer. The official also refused to answer when asked if the construction was started before President Mahmoud Ahmadinejad took office in August 2005.
The official also said, "These kinds of things are always a matter of degree."
If the satellite imagery for 2006, 2007 and 2008 shows that construction did not begin until after the Iranian withdrawal from its commitment to modified Code 3.1, it would provide new evidence that Iran intended to remain within the letter of its safeguards agreement and was not planning a covert enrichment facility.
President Obama called the second enrichment facility "a direct challenge to the basic foundation of the non-proliferation regime", saying Iran had broken "rules that all nations must follow".
Outgoing IAEA Director General Mohamed ElBaradei declared in New Delhi Wednesday that Iran is "on the wrong side of the law... insofar as informing the agency about the construction."
Although it has remained unreported in the news media, however, Iran has a legal case that it has remained in compliance with its Safeguards Agreement.
In March 2009, the director of the IAEA Office of Legal Affairs, Johan Rautenbach, called Iran's reversion to implementation of the earlier version of the Code 3.1 "inconsistent with its obligations under the Subsidiary Arrangements".
But he went on to say that it was "difficult to conclude that providing information in accordance with the earlier formulation in itself constitutes non-compliance with, or a breach of, the Safeguards Agreement as such."
The Safeguards Agreement itself clearly forbids unilateral "modification" of a Subsidiary Arrangement, but it says nothing about withdrawal from such an agreement, which is what Iran is asserting it did in March 2007.
The distinction between "modification" and "withdrawal" from provisions of an international agreement is well established in the Vienna Convention on the Law of Treaties.
Unilateral withdrawal is permitted under that Convention, provided that the provision in question is separable from the remainder of the agreement, is not the essential basis of consent by the other party and continued performance of the remainder of the agreement would not be "unjust".
The head of the IAEA Legal Department appears to have accepted that those three conditions applied to the case of Iran's "Modified Code 3.1" agreement.
Gareth Porter is an investigative historian and journalist specialising in U.S. national security policy. The paperback edition of his latest book, "Perils of Dominance: Imbalance of Power and the Road to War in Vietnam", was published in 2006.