What is with the IAEA? Last August, it appeared that the agency had at last arrived at a workplan protocol with Iran which, if Iran dotted its 'p's and 'q's, could final emerge from the cycle of reports and sanctions that have dogged it since early 2006. Instead, the IAEA appears increasingly unwilling to close the book on Iran, even though it is unclear at this late date what material information, or deficit of information, is holding the agency back. Perhaps the answer is that there will always be questions without answers, without end.

The 22 February IAEA report revisits a number of subjects involving Iran's past suspected nuclear activities. None of these really pertained to the matter of great interest to the US and its allies, namely whether Iran is now engaged in a covert nuclear weapons program. The answer to this question remains negative: the IAEA "has been able to continue to verify the non-diversion of declared nuclear materials." The "one remaining issue" relevant to the programme is "the alleged studies (by Iran) on the green salt project, high explosives testing and the missile re-entry vehicle." ("Green salt" is an alleged uranium conversion process.) The report references discussions in late January; however, Iran was only given access to US information pertinent to these matters in February. The timing is not explained; Iran was given literally days to address this purported new evidence. The UK is now contending that this evidence indicates Iran was conducting weapons work after 2003, but the larger question is why we are only hearing of this now - perhaps the proximity of a new UN Security Council meeting has something to do about it.

Iran's current uranium enrichment activities are only controversial because the UN Security Council made them so. Nothing in the Nuclear Nonproliferation Treaty (NPT) precludes any signatory from engaging in peaceful fuel cycle activities including enrichment provided they comply with verification and safeguards agreement. The IAEA has been given access to the Natanz enrichment operation throughout and has carried out nine unannounced inspections since March 2007. According to the February 22 report, the throughput of uranium remains below the facility's stated capacity, and the enrichment levels are at 3.8% - nowhere near the levels required for an atomic bomb. There is no statement anywhere in the latest report complaining of lack of transparaency at Natanz.

It appears that the IAEA is now choosing to follow a 'middle' course that will ultimately please no one. This is not a technical choice; it is political. The 'why' behind this choice is probably complex, including a desire not to alienate its powerful governors from the US and EU, and at the same time avoid furnishing the US or its proxies with ammunition to do worse. Right now, Iran is claiming victory once more, demanding return of its UN dossier, but few are listening at this point. The US will cherrypick selective language as further evidence of Iranian bad faith, whether or not the specifics support the point being made.

If it their sober reflections Iran's leaders are beigining to suspect a rigged game, they may be right. The US is now complaining that Iran cannot answer all the questions put to it, but considering that many of these questions were not even raised until a week or so before the report, what does this say about the process? Quote: "The Agency only received authorization to show some further material to Iran on 15 February 2008. Iran has not yet responded to the Agency's request of that same date for Iran to view this additional documentation on the alleged studies. In light of the above, the Agency is not yet in a position to determine the full nature of Iran's nuclear programme." Once more, the US is moving the goalposts by selectively doling out documents they choose to have Iran respond to on short notice.

The more conseqeuntial issue is the lopsided burden of proof to which Iran is being subjected. A key sentence in the report appears near the very end. This is not a paraphrase, but an actual quote:

Confidence in the exclusively peaceful nature of Iran's nuclear programme requires that the Agency be able to provide assurances not only regarding declared nuclear material, but, equally importantly, regarding the absence of undeclared nuclear material and activities in Iran. With the exception of the issue of the alleged studies, which remains outstanding, the Agency has no concrete information about possible current undeclared nuclear material and activities in Iran.

Iran is, in other words, being asked to prove the negative beyond a shadow of a doubt , the non-existence of a fact. This was the same quandary faced by UNSCOM before 2003 inside Iraq, when the US told the world that the absence of WMD evidence only meant that Saddam had been especially clever in covering it up. US policymakers could additionallyargue that the absence of evidence is only proof of the inadequacy of the inspection process, and even proof of the continuing bad faith nondisclosure by the target nation.

Does this legal standard exist under the NPT, the IAEA statute, or the Safeguards Agreements between the IAEA and Iran? Certainly not - no country would reasonably subject themselves to a verification regime which cannot ever be satisfied in the eyes of the US and EU. It would be if any litigant in court could march in and simply argue, "prove to me you have not breached the contract," and sit back. Treaties are contracts - there has to be both objective proof of a breach and a reasonable burden of proof. By employing an ever-flexible evidentiary standard, the IAEA risks distorting and eroding its own ostensibly non-partisan process, which will not advance the overall goal of nuclear non-proliferation.