This article was originally published in Global Security Newswire, produced independently by National Journal Group under contract with the Nuclear Threat Initiative. NTI is a nonprofit, nonpartisan group working to reduce global threats from nuclear, biological, and chemical weapons.
Just weeks before the second Global Nuclear Security Summit convenes in South Korea, the United States still has not enacted a law critical to ratifying what the Obama administration at the first summit called “the two key international treaties governing nuclear security” (see GSN, Oct. 6, 2011).
The Senate endorsed both pacts four years ago without opposition. However, Congress has yet to sign off on legislation that would force the United States to come into line with the mandates.
The administration is still wrangling with Congress over legal specifics for implementing the international agreements, according to representatives of the State Department and involved congressional committees.
Officials from the Justice and State departments are meeting routinely with Capitol Hill staffers in an effort to resolve disputes, but neither side has promised formal action on the proposals prior to the March 26-27 event in Seoul or before the current congressional term ends next January.
Some issue specialists called for senior-level White House involvement in finalizing U.S. adoption of the agreements, a step they said is crucial to improving atomic-material protections around the world and to bolstering global collaboration in apprehending and punishing potential nuclear-terrorism suspects.
“The White House needs to call Democrats who are on the Hill and tell them to make it happen,” said Miles Pomper, a senior research associate at the James Martin Center for Nonproliferation Studies in Washington.
One of the two arrangements requires member nations to criminalize the possession or use of sensitive materials in a nuclear or radiological weapon with the intent of causing death and destruction. It also establishes guidelines for cooperating in the extradition and prosecution of individuals linked to a nuclear plot or threat. The 2005 pact -- called the International Convention for the Suppression of Acts of Nuclear Terrorism -- took effect in 2007 and now has 77 member states; the United States, however, remains outside the regime.
The second agreement, also completed in 2005, would revise the Convention on the Physical Protection of Nuclear Material to demand a number of requirements aimed at protecting nonmilitary nuclear material in domestic use, storage, or transport. The accord presently only requires such measures for material in transit between countries. To take effect, the amendment must be ratified by 97 of the original 145 signatories to the 1980 pact; 53 had done so as of late February, according to a U.N. document.
At the 2010 nuclear summit in Washington, the Obama administration said the United States had “accelerated efforts to complete ratification procedures” for the convention and amendment. One month earlier, it had provided Congress with a draft bill to implement the agreements, describing the legislation as “nearly identical” to a proposal put forward by the Bush administration in July 2008.
No lawmaker has sponsored a bill in Congress for complying with the treaties, however. Last year, the Justice Department provided the new 112th Congress with a slightly revised proposal for meeting the terms of the pacts. Also included in the submission was the department’s fourth draft bill since 2007 for implementing two separate agreements on legal procedures for terrorism cases involving ships or fixed platforms, as well as overseas transfers of terrorist fugitives or of WMD materials or delivery systems.
The Senate in September 2008 provided constitutionally mandated “advice and consent” for all four deals, but the two bills for complying with the agreements would also require approval from the House of Representatives.
The Obama administration in 2010 launched discussions with Congress aimed at hammering out consensus language for implementing the two nuclear-security agreements, and the State Department as of late January was holding talks on all four pacts “at least once a month or so” with staffers from the Judiciary and Foreign Affairs committees in the House or Senate, one department official said. The Justice Department has also participated in the discussions, said the source, who was authorized to speak only on condition of anonymity.
A second State Department official on Thursday suggested the talks have intensified in the last month.
“Things have started moving with Congress, and we are now working with them to enact legislation that will allow us to implement the treaties,” the official -- also not authorized to comment on the record -- stated by e-mail.
Staffers from both houses have been working on their own proposals for implementing the four international agreements, the first official said, adding that all negotiations on legislative measures have used the Justice Department’s proposal as a starting point.
“There have been some discussions regarding draft legislation from the House side, draft legislation from the Senate side, so we’re working with both sides to try to realize legislation that could get through both houses expeditiously,” the source said.
The administration’s 2011 draft bill for the two nuclear agreements nearly matches the first, with the exception of brief additions that the State Department official said were intended to match the international and U.S. definitions of a “nuclear weapons state.”
Spokespeople for every participating committee turned down requests to discuss the latest roadblocks. The State Department insider, though, said lawmakers remained deeply concerned about two provisions in the Justice Department’s latest bill that take steps not required by the international nuclear security agreements: language to make an “act of nuclear terrorism” as defined under the law an executable offense if it results in death, and a measure to extend federal wiretapping authorities to specifically include investigations related to a nuclear incident.
House Judiciary Crime, Terrorism and Homeland Security Subcommittee ranking member Bobby Scott, D-Va., took issue with both aspects of the legislation at a hearing convened last October.
“The administration has clearly asked for more than is necessary to implement these treaties,” he said, noting the pacts themselves still enjoyed broad, bipartisan support.
In a separate criticism, Scott said the administration’s proposals would result in legal redundancies. The nuclear-security compliance text would create a new section of the federal criminal code, but the lawmaker said “existing statutes already cover most of our obligations” under the pacts. Any mandates in the four international accords not covered by existing U.S. law should be addressed “in a manner that simplifies the criminal code rather than complicates it,” Scott said.
Deputy Assistant Attorney General Brad Wiegmann at the hearing acknowledged “some overlap” with existing statutes.
It is uncertain to what extent GOP lawmakers on the panel share the concerns of their Democratic counterparts. The State Department insider admitted that “the death penalty has been an issue for some folks but not an issue for other folks,” but subcommittee Chairman James Sensenbrenner, R-Wis., railed with Scott at a December hearing against what both lawmakers described as a proliferation of unnecessary federal criminal statutes.
The State Department official said he was “confident we’re going to have consensus” on the legislation. “Everyone supports the aims of the treaty and what we’re trying to do and everyone’s trying to work with us and find ways to do it.”
It was still unclear how soon a deal could be reached, the official said, adding the administration has consistently sought in talks with congressional staff to “impart a sense of urgency” for completing ratification of all four security deals.
Pomper, though, said implementing the two nuclear agreements “is not a high priority item for Congress.”
“There’s not a lot of political benefit to doing this, and … even though they’re important, they’re sort of obscure to your average congressman, and they’re not going to win or lose an election on it,” the expert said.
The security benefits of the two agreements could outweigh their domestic political significance, statements by U.S. and international experts suggest. Both measures are “essential elements of the global nuclear-security architecture,” according to the 2010 summit communique and a statement by current and former top officials assembled to advise South Korean President Lee Myung-bak on the upcoming forum in Seoul.
“These treaties already won broad bipartisan support from the Senate in 2008 so passing simple legislation to implement them should be possible,” Senate Foreign Relations Committee Chairman John Kerry, D-Mass., told Global Security Newswire in an e-mail statement.
CORRECTION: The original version of this story misstated the number of countries that have ratified the Convention on the Physical Protection of Nuclear Material amendment. The correct number is 53.
In advance of the October hearing, Sensenbrenner received letters from several top Bush-era nuclear officials urging action to advance the 2005 amendment to the Convention on the Physical Protection of Nuclear material.
“Approving the implementing legislation … is important because it would strengthen the international regime to counter nuclear terrorism and because it would, among others, criminalize specified offenses such as the possession of radioactive materials other than nuclear material that are not now permitted by [U.S.] law,” former National Nuclear Security Administration head Linton Brooks said in one of the statements.
The move could also help the United States “steer the outcome” of this month’s summit, Brooks wrote.
Pomper said the amendment would not impose specific physical security requirements for nuclear material in member nations, but it could provide “a foothold” for pressuring signatory states to accept voluntary audits and to agree to international recommendations, such as calls by the International Atomic Energy Agency last year for security assessments, physical barriers, human sentries and other measures at member nations’ nuclear sites.
The amendment remains “well short” of the number of ratifications required to take effect, he noted.
“A lot of countries look at us and say, ‘If the U.S. isn’t going to ratify this, why should we bother?’ ” Pomper said. “We were the ones who pushed the negotiation of this amendment, so this is doubly embarrassing.”
A one-time senior State Department nuclear-security official under President Bush aired the same concern.
“I can assure you that other countries look to the United States' action or inaction on this amendment … as a guide to their own behavior,” Andrew Semmel, who served from 2003 to 2007 as deputy assistant secretary of State for nuclear nonproliferation policy and negotiations, said in his own letter to Sensenbrenner.
The International Convention for the Suppression of Acts of Nuclear Terrorism has already entered into force. Ratification by the United States could serve to further broaden its membership, Assistant Secretary of State for International Security and Nonproliferation Thomas Countryman said told the House subcommittee in October.
“While 77 states are party to [the agreement], it still lags far behind other similar counterterrorism conventions, most of which have over 150 states parties,” Countryman said. “The U.S. has ratified the 12 [earlier] counterterrorism conventions … and U.S. leadership in promoting those treaties has been instrumental in getting other countries to also ratify those treaties.”
This month’s summit in Seoul could provide crucial leverage for action on the agreements, said Kingston Reif, nuclear nonproliferation head for the Center for Arms Control and Nonproliferation.
“The question is if the U.S. doesn’t get this done after the summit, and there’s not necessarily pressure to do it until the next summit or if there’s not really a time line at all, I don’t know how that’s going to … encourage Congress to act on this,” Reif said. “The time is now.”
“Congress has oversight responsibility on this and they should do their due diligence … but this has been going on for months and months and months now, and the time has since passed to move this process forward,” he said.