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Congress Could Rewrite Obama Proposals on Adopting Nuclear Pacts

By Diane Barnes

Global Security Newswire

(Oct. 6) -U.S. and Australian navy personnel conduct a security sweep of a ship in 2009 as part of an exercise under the Proliferation Security Initiative, a program aimed at intercepting illicit WMD transfers. Concerns over legislation proposed by the Obama administration for complying with four international nuclear security and counterterrorism pacts might prompt lawmakers to develop a counterproposal, the top Democrat on a key congressional committee suggested on Wednesday (U.S. Defense Department photo). (Oct. 6) -U.S. and Australian navy personnel conduct a security sweep of a ship in 2009 as part of an exercise under the Proliferation Security Initiative, a program aimed at intercepting illicit WMD transfers. Concerns over legislation proposed by the Obama administration for complying with four international nuclear security and counterterrorism pacts might prompt lawmakers to develop a counterproposal, the top Democrat on a key congressional committee suggested on Wednesday (U.S. Defense Department photo).

WASHINGTON -- A key Democratic lawmaker on Wednesday suggested Congress might amend legislation submitted by the Obama administration in April for complying with four international nuclear security and counterterrorism agreements, potentially delaying full adoption of the pacts by the United States (see GSN, April 14).

The administration proposal would expand presidential powers in areas not required by the accords, House Judiciary Crime, Terrorism and Homeland Security Subcommittee ranking member Robert Scott (D-Va.) said at a hearing on the legislation. Citing several elements of concern, Scott said the submission would allow the president to unilaterally conclude international agreements on enforcing the pacts, and would specifically permit federal wiretaps in WMD terrorism investigations.

“I'm still not convinced … that the implementing legislation before us today is the best path forward. The fact is that existing statutes already cover most of our obligations under these new agreements,” Scott said.

“When we've answered these questions to our satisfaction, I suspect that we will [arrive] at a simpler legislative proposal that fully honors our new commitments,” he said.

Scott later emphasized his support for the pacts themselves.

“I think we all want to … ratify these,” he said. “That's not the question before us. The question is whether these proposals are necessary.”

The Senate in September 2008 issued resolutions of advice and consent for all four of the accords, but ratification is not possible until U.S. law is updated to fall in line with their requirements, Deputy Assistant Attorney General Brad Wiegmann said in written testimony to the subcommittee.

Congress failed to pass compliance legislation submitted in 2008 by the Bush administration as well as another proposal put forward by the Obama administration in 2010.

The new legislation “will fill gaps” between existing U.S. law and treaty mandates, and it “closely tracks” both of the earlier proposals, Assistant Secretary of State for International Security and Nonproliferation Thomas Countryman told the panel. A Democratic Judiciary Committee staffer backed that view, adding that career officials in the State and Justice departments considered the language “absolutely necessary” for implementing the International Convention for the Suppression of Acts of Nuclear Terrorism and three other agreements.

“The proposed implementing legislation will ensure that the United States complies with our international obligations under each treaty to criminalize certain conduct and establish criminal jurisdiction over that conduct,” Countryman said in a statement to the panel. “The criminal offenses covered under these treaties are serious offenses involving nuclear terrorism, WMD proliferation, maritime terrorism, and unlawful maritime support of WMD and their delivery systems.”

Still, questions over the necessity of certain elements in the latest Obama administration proposal have hindered passage of the legislation. Judiciary Committee ranking member John Conyers (D-Mich.) opted not to introduce the bill in Congress, and Democrats are interested in “pursuing a more elegant solution” to implementing the treaties, according to the committee staffer, who declined to be identified while communicating the views of panel lawmakers.

Of particular concern was a legislative provision to authorize potential use of executions for some infractions covered under the pacts. Neither Scott nor Conyers would support broadening the potential application of the death penalty, the staffer said.

“How many times do we need to be able to execute an individual for a crime of terrorism?” Scott asked in his opening remarks.

The International Convention for the Suppression of Acts of Nuclear Terrorism, which entered into force in 2007 and now has 77 states parties, requires member nations to criminalize threats and efforts to carry out a terrorist strike involving nuclear or radiological weapon, and to cooperate in investigating such acts and in extraditing connected suspects.

The 2005 Amendment to the Convention on Physical Protection of Nuclear Material would expand on a 1980s-era pact governing international shipments of civilian nuclear material to also include standards for securing nonmilitary atomic material held, used or transferred within a single nation’s borders. The agreement must be ratified by 97 of its 145 states parties to take effect; only 49 countries have done so.

The 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and the 2005 Protocol to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, which both entered into force last year, standardize legal procedures for individuals with suspected links to terrorist attacks involving ships or fixed platforms, or to the overseas transfer of terrorist fugitives or of WMD materials or delivery systems.

Scott questioned the need for the administration’s proposal to expand wiretapping authorities to include violations covered under the agreements, though the pacts themselves do not require such a measure.

“It is clear that wiretaps should be available to investigate WMD terrorism when they are also available to investigate crimes like money laundering, fraud, theft, misuse of passports and sporting event bribery,” Wiegmann said in his written testimony.

Another provision of concern to Scott expressly permits the attorney general to authorize the boarding of suspect vessels when “the Coast Guard and the Navy have that authority and know how to do it.”

The language is “not strictly necessary,” Wiegmann said during questioning. “We believe we already have the authority without a statute, but we think it's prudent to codify that to make it clear.”

Presidential administrations have already entered into international agreements with preapproval by Congress as part of the WMD interdiction Proliferation Security Initiative, "but again, we think it's prudent for Congress to endorse and kind of codify our authority to enter into those agreements,” the Justice Department official said.

Both Countryman and Wiegmann stressed the potential for full U.S. implementation of the agreements to generate momentum for their adoption abroad.

“U.S. ratification of these treaties will encourage widespread ratification and implementation by other countries,” Countryman said.

Note to our Readers

GSN ceased publication on July 31, 2014. Its articles and daily issues will remain archived and available on NTI’s website.

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