Engineering Breakthroughs When Trust is Low

By PON Staffon / International Negotiation

The Obama administration capitalized on its recent nuclear deal with Iran to secure the release of Americans imprisoned in the Middle Eastern nation.

In recent years, the United States has urged Iran to release a number of Americans, including Washington Post reporter Jason Rezaian, who had been seized and imprisoned on what the U.S. government called baseless espionage charges. Yet with diplomatic relations between the two longtime antagonists frozen, it wasn’t until they made headway on an agreement regarding Iran’s nuclear program that the U.S. government was able to gain the leverage it needed to bring the prisoners home.

Wendy Sherman, the top U.S. negotiator in the nuclear deal with Iran, told the New Yorker that the prisoner-swap negotiations were in some ways harder than the far more technically complex nuclear negotiations because they “were about American citizens, human lives, the pain of their families, the pain of their daily existence.”

As we will see, the talks provided a slew of other challenges. The story suggests how professional negotiators can look for leverage when trust between parties is low.

Negotiating framing and scope

In early 2014, Iran and the five permanent members of the U.N. Security Council, including the United States, began meeting to negotiate the dismantling of parts of Iran’s nuclear program in exchange for sanctions relief.

That October, U.S. president Barack Obama assigned Brett McGurk, his special envoy in the global fight against ISIS (Islamic State of Iraq and al-Sham), to lead separate, bilateral secret talks with Iran over the release of U.S. prisoners, according to the New York Times. The Iranians put together their own team of negotiators from the country’s state security apparatus. As compared with the more moderate Iranians participating in the nuclear talks, those involved in the prisoner negotiations represented more hard-line Iranian factions.
Initially, the Iranians provided a list of about 40 prisoners they wanted to see freed from the United States and other nations. The Americans quickly rejected the idea of trying to free those held abroad, but approached the White House about the possibility of a prisoner swap.

The U.S. Justice Department and the Obama administration debated the question. U.S. attorney general Loretta E. Lynch objected to the idea of trading Iranians—who had been held and in some cases convicted of wrongdoing according to Western legal standards—for innocent Americans seized on spurious charges in Iran. President Obama believed a prisoner swap offered the best hope of freeing Americans from Iranian prisons, but to meet Lynch’s concerns and avoid setting a precedent, he decided to frame the swap as a “one-time gesture,” officials told the Times.
The Americans came up with a list of four Iranian Americans whom it wanted freed, including Rezaian and Marine veteran Amir Hekmati. Meanwhile, Iran provided a list of 19 Iranians being held in the United States whom it wanted released. Lynch’s department and other U.S. agencies scrutinized each case. After excluding those being held on charges related to violence or terrorism, they were left with a list of seven Iranians accused or convicted of violating sanctions or export restrictions.

From argument to opening

The American and Iranian negotiating teams met every four to six weeks to try to hammer out a prisoner swap, usually in Geneva, with Swiss officials managing the logistics of the trade on behalf of the U.S. government, according to the New York Times. Thanks to his official role as U.S. special envoy against ISIS, McGurk was able to moonlight as the American leader of the secret prisoner negotiations without attracting public attention.

Until the nuclear deal was reached in July 2015, the two sides in the prisoner-swap negotiations “spent more time arguing than agreeing,” the Times reports. The Iranian negotiators devoted significant time to berating their American counterparts over historical grievances, including a CIA-backed coup dating back to 1953.

Amid the ongoing nuclear negotiations, U.S. secretary of state John Kerry and American-educated Iranian foreign minister Mohammad Javad Zarif occasionally put their heads together to discuss the prisoners, but always in separate meetings. They worried that the sensitive issue could disrupt the fragile progress being made in the nuclear talks—and the United States reportedly feared endangering the prisoners further if news of the talks went public.

After the Iran nuclear agreement was finalized in July 2015, negotiations over the prisoners began to progress. “The feeling was, we got this really big thing done, we have better diplomatic openings,” one Obama administration official told the Huffington Post. “Now we can focus on the prisoners.”

Setbacks and delays

By the fall of 2015, U.S. negotiators believed that the prisoner deal was almost sealed, according to the Times. The United States would free seven Iranians and rescind international arrest warrants on 14 others in exchange for the release of the four Americans.

But in November, the American team was stunned when the Iranian team opened a new round of sessions in Geneva by reverting to their initial demand for dozens of Iranians to be released. Believing that someone in Iran was trying to scuttle the deal, McGurk and his team walked out. On the sidelines of Syria negotiations in October, Kerry and Zarif, who had built trust and rapport while hammering out the nuclear deal, stepped in and helped the prisoner negotiations get back on track.

Other bumps in the road followed. In December, after Iran arrested an American who was studying Farsi in Tehran, the American negotiators told the Iranians that they expected his release but would not include him in the official talks, lest Iran demand that more Iranians be released in return.

On December 29, Zarif learned that the United States was planning to announce new sanctions on Iran’s ballistic missile program the next day. The news was likely to anger those behind the prisoner deal and cause it to blow up, he warned Kerry. The Obama administration decided not to reveal the sanctions until after the prisoner swap, but Congress got wind of the delay and accused Obama of backtracking on his promises to hold Iran accountable for its ballistic missile program, according to the Huffington Post. Because the prisoner swap remained top secret, Obama was unable to explain the delay.

As 2016 dawned, it became clear that the prisoner-swap negotiations would be wrapping up right around the time that the United States and other nations were expected to lift economic sanctions against Iran. But on January 12, as both deals were about to be consummated, two U.S. Navy patrol boats drifted into Iranian waters, and Iran detained 10 U.S. sailors. Once again, Kerry placed a flurry of calls to Zarif. The sailors were released the next morning.

One day, two breaking stories

On January 16, the International Atomic Energy Agency reported that Iran was complying with the terms of the multistate nuclear agreement, news that prompted the United States, European Union, and United Nations to officially lift their longtime sanctions against Iran.

The same day, Iran preempted a planned U.S. announcement of the prisoner swap with its own announcement of the deal. One of the four American prisoners, plus the recently detained student, were released; one took a commercial flight home, and the other chose to stay in Iran.

The other three Americans, including Post reporter Rezaian, were taken to the airport to fly out on a Swiss plane. Yet down to the final hours, the drama continued: Rezaian’s mother and wife, who were in Iran awaiting his release, suddenly were nowhere to be found. Iranian officials eventually said they would not be permitted to fly out with Rezaian. Once again, urgent communications between Kerry and Zarif were needed. Finally, Rezaian, his relatives, and the final two American detainees were released.

Moving forward when trust is low

The following guidelines can help negotiators forge a deal even when they aren’t sure they can trust each other.

1. Build on past successes. The prisoner swap depended in large part on the success of the Iran nuclear deal, which created a sense of optimism that the longtime enemies were capable of reaching common ground. If a deal seems impossible, wait for breakthroughs on other fronts and try to capitalize on them.

2. Line up internal support. The Obama administration was careful to listen to the Justice Department’s concerns about a prisoner swap and look for ways to address them. To keep factions on your team from sabotaging a deal, ask for their input early in the process, and try to negotiate terms that will give you the bargaining power you need. The more united your side is, the more trustworthy you will seem to the other side.

3. Protect the deal from scrutiny. Publicity can easily sabotage a sensitive deal. When trust is low, parties need privacy to take the risk of brainstorming proposals and testing the other side’s intentions.

4. Kick it upstairs—judiciously. McGurk and his team handled day-to-day negotiations with the Iranian team. But when the Iranians pulled some surprise moves, the Americans contacted Kerry, who drew on his rapport with the moderate Zarif to resolve tensions. In your own negotiations, higher-ups may be able to break through impasse and ease conflict by connecting with leaders from the other side.