Lawmakers’ Retort to Obama’s ‘Flexible’ Nuclear Trade Policy: Potential New Limits

Students look at a model of a nuclear power plant jointly designed by Hitachi and General Electric on display at an international nuclear power exhibition held in Hanoi in October 2012. On the eve of signing a nuclear trade pact with Vietnam, the Obama team is recasting an existing negotiating policy and seeing pushback from Capitol Hill.
National Journal
Elaine M. Grossman
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Elaine M. Grossman
Dec. 12, 2013, 11:02 a.m.

Lead­ing House and Sen­ate law­makers will of­fer le­gis­la­tion as early as Fri­day to tight­en con­gres­sion­al re­view of U.S. nuc­le­ar trade pacts.

The move is in re­sponse to the con­clu­sion this week of an in­tern­al Obama ad­min­is­tra­tion re­view, which has been un­der way for sev­er­al years.

In an ex­pec­ted Thursday af­ter­noon an­nounce­ment, Glob­al Se­cur­ity News­wire has learned that the State and En­ergy de­part­ments will double down on a de facto policy to­ward “flex­ible” ne­go­ti­ations on nuc­le­ar trade and non­pro­lif­er­a­tion that a num­ber of Cap­it­ol Hill Demo­crats and Re­pub­lic­ans con­tend would not ad­equately pro­tect glob­al se­cur­ity.

Sen­at­or Ed­ward Mar­key (D-Mass.) joined Rep­res­ent­at­ives Ileana Ros-Le­htin­en (R-Fla.) and Brad Sher­man (D-Cal­if.) on Wed­nes­day in an­noun­cing they plan to in­tro­duce a meas­ure that could make it tough­er for the White House to win con­gres­sion­al ap­prov­al for shar­ing sens­it­ive nuc­le­ar ma­ter­i­als, re­act­or equip­ment and know-how with in­ter­na­tion­al trade part­ners.

U.S. nuc­le­ar-co­oper­a­tion ac­cords with na­tions that agree to fore­go an in­di­gen­ous ca­pa­city for mak­ing nuc­le­ar fuel would get more fast-track treat­ment un­der the pro­posed bill. Its pro­ponents fear that al­low­ing na­tions to man­u­fac­ture their own fuel for en­ergy pur­poses could make it easi­er to con­struct il­li­cit nuc­le­ar bombs.

The le­gis­la­tion is ex­pec­ted to be al­most identic­al to a bi­par­tis­an meas­ure in­tro­duced by Ros-Le­htin­en in March 2011 that the U.S. nuc­le­ar-en­ergy in­dustry op­posed and which failed to at­tract the sup­port of House Re­pub­lic­an lead­er­ship. It passed with un­an­im­ous sup­port of the House For­eign Af­fairs Com­mit­tee, which Ros-Le­htin­en chaired at the time, but nev­er went to a floor vote.

The law­makers spoke at a Wed­nes­day event on Cap­it­ol Hill sponsored by the Non­pro­lif­er­a­tion Policy Edu­ca­tion Cen­ter, in ad­vance of an an­ti­cip­ated Obama ad­min­is­tra­tion policy an­nounce­ment by Rose Got­te­moeller, the act­ing un­der­sec­ret­ary of State for arms con­trol and in­ter­na­tion­al se­cur­ity, and Daniel Pone­man, the deputy En­ergy sec­ret­ary.

Speak­ing at the At­lantic Coun­cil on Thursday, the pair is ex­pec­ted to de­scribe what is now be­ing termed a “flex­ible” U.S. ap­proach to ne­go­ti­at­ing nuc­le­ar co­oper­a­tion with for­eign na­tions.

Un­der the policy, Wash­ing­ton will at­tempt to in­terest new nuc­le­ar-trade in­ter­locutors in mak­ing either leg­ally bind­ing or polit­ic­al pledges not to do­mest­ic­ally en­rich urani­um or re­pro­cess plutoni­um, ac­cord­ing to a State De­part­ment of­fi­cial in­ter­viewed on Wed­nes­day.

However, the Obama team will not al­low the lack of so-called nuc­le­ar non­pro­lif­er­a­tion “gold stand­ard” pro­vi­sions to stop any de­sired trade ac­cord from go­ing for­ward, be­cause of the eco­nom­ic be­ne­fits these pacts can bring, the of­fi­cial ex­plained.

The an­ti­cip­ated Thursday an­nounce­ment comes after years of in­tern­al policy re­views about wheth­er the Obama ad­min­is­tra­tion should im­ple­ment its long-pro­posed “case-by-case” ap­proach to ne­go­ti­at­ing nuc­le­ar trade agree­ments.

That ap­proach has re­ceived strong and con­sist­ent push­back from lead­ing fig­ures on Cap­it­ol Hill. These Demo­crats and Re­pub­lic­ans have sought in­stead more ag­gress­ive cham­pi­on­ing of a no-en­rich­ment-and-re­pro­cessing pledge by trade part­ners in ex­change for Wash­ing­ton’s in­flu­en­tial “bless­ing” on their bud­ding nuc­le­ar-en­ergy pro­grams.

The State De­part­ment of­fi­cial, speak­ing on con­di­tion of not be­ing named, told GSN on Wed­nes­day that the flex­ible ne­go­ti­at­ing ap­proach be­ing un­veiled this week is es­sen­tially the same as the con­tro­ver­sial case-by-case ap­proach touted in earli­er years, but that “flex­ible” seemed like a more ac­cur­ate de­scrip­tion.

Got­te­moeller and Pone­man are set­ting the stage for Sec­ret­ary of State John Kerry’s vis­it to Vi­et­nam next week, where he is ex­pec­ted to sign a form­al nuc­le­ar co­oper­a­tion agree­ment with the South­east Asi­an na­tion. Kerry and his Vi­et­namese coun­ter­part ini­tialed the pact on a pre­vi­ous vis­it to the re­gion in Oc­to­ber.

Cap­it­ol Hill aides said the ques­tion of wheth­er to al­low con­tin­ued urani­um en­rich­ment in Ir­an in a fu­ture long-term deal with West­ern powers — des­pite con­cerns about Tehran’s widely sus­pec­ted am­bi­tions of de­vel­op­ing a nuc­le­ar-arms cap­ab­il­ity — have stoked the push in Con­gress to re­sus­cit­ate the earli­er shelved le­gis­la­tion.

Un­der the up­com­ing meas­ure, any nuc­le­ar trade pact that lacks leg­ally bind­ing pro­vi­sions that leave open the pos­sib­il­ity of a new trade part­ner’s do­mest­ic en­rich­ment or re­pro­cessing would re­quire a ma­jor­ity vote by the House and Sen­ate be­fore go­ing for­ward in­to im­ple­ment­a­tion.

Those that do con­tain bars against in­di­gen­ous re­pro­cessing or en­rich­ment would pro­ceed along the same, more per­missive con­gres­sion­al re­view pro­cess that ap­plies to all atom­ic trade agree­ments today — namely, a 90-day con­tinu­ous-ses­sion wait­ing peri­od of con­gres­sion­al re­view after which the pact can be im­ple­men­ted, with no Cap­it­ol Hill votes re­quired.

Con­cerns are not lim­ited to the situ­ation with Ir­an, though. The up­com­ing U.S. nuc­le­ar trade ac­cord with Hanoi con­tains a pre­amble that says any for­eign re­act­ors built on Vi­et­namese soil will use for­eign fuel, rather than do­mest­ic­ally en­riched urani­um or re­pro­cessed plutoni­um, ac­cord­ing to key sources.

However, this non­pro­lif­er­a­tion safe­guard is not in the main text of the agree­ment and thus is not con­sidered leg­ally bind­ing. U.S. of­fi­cials have said they were un­able to win a leg­ally en­force­able gold-stand­ard prom­ise from Vi­et­nam, but they be­lieve the pact suf­fi­ciently as­sures se­cur­ity and re­mains in U.S. eco­nom­ic in­terests.

Obama ad­min­is­tra­tion of­fi­cials re­portedly have told Cap­it­ol Hill that they will de­term­ine wheth­er to de­mand gold-stand­ard pro­vi­sions in fu­ture nuc­le­ar trade agree­ments based on three factors: The re­l­at­ive sta­bil­ity or in­stabil­ity of the re­gion in­volved; the past be­ha­vi­or of the par­tic­u­lar na­tion; and wheth­er that na­tion would walk away from a pact with Wash­ing­ton if such a pledge were re­quired.

Sev­er­al key law­makers who sup­por­ted en­act­ing new le­gis­lat­ive re­straints on nuc­le­ar trade agree­ments in the past are no longer on Cap­it­ol Hill or serving in lead­er­ship po­s­i­tions — to in­clude Ros-Le­htin­en, who is no longer the For­eign Af­fairs com­mit­tee chair­man, and former Rep­res­ent­at­ive Howard Ber­man (D-Cal­if.) and Sen­at­or Richard Lugar (R-Ind.), both voted out of of­fice.

The re­newed bi­par­tis­an push this week by sit­ting law­makers, though, guar­an­tees that the Obama ad­min­is­tra­tion’s head­aches on nuc­le­ar trade talks and non­pro­lif­er­a­tion is­sues are far from over, just as the Vi­et­nam agree­ment gets sent up to Cap­it­ol Hill.

“Dis­cour­aging the spread of en­rich­ment and re­pro­cessing tech­no­logy by whatever means should be a pri­or­ity goal for the ad­min­is­tra­tion, es­pe­cially giv­en where we are with Ir­an,” one con­gres­sion­al aide told GSN on Thursday.

This art­icle was pub­lished in Glob­al Se­cur­ity News­wire, which is 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.

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