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Plan to Militarize Nuclear Security Could Face Legal Obstacles, Critics Say

By Douglas P. Guarino

Global Security Newswire

A worker handles equipment involved in nuclear-weapon refurbishment activities at the Pantex Plant in Texas. Existing law could complicate a U.S. legislator’s bid to militarize protections at the nation’s nuclear-weapon production facilities, according to critics of his proposal introduced last week (U.S. National Nuclear Security Administration photo). A worker handles equipment involved in nuclear-weapon refurbishment activities at the Pantex Plant in Texas. Existing law could complicate a U.S. legislator’s bid to militarize protections at the nation’s nuclear-weapon production facilities, according to critics of his proposal introduced last week (U.S. National Nuclear Security Administration photo).

WASHINGTON – A Reconstruction-era law limiting the powers of the armed forces on U.S. soil is one of several obstacles that could complicate Representative Mike Turner’s efforts to militarize security at nuclear weapons production sites, skeptics say.

Turner (R-Ohio), chairman of the House Armed Services Strategic Forces Subcommittee, unveiled the plan Friday in a bill co-sponsored by six other Republicans. In a press release, Turner suggested the effort is largely a response to a July incident in which an 82-year-old nun and two other peace activists were able to infiltrate the Y-12 National Security Complex in Tennessee.

According to Turner, “shifting security to the military provides a number of advantages over the current system” in which private contractors provide protection for nuclear weapons production and research facilities overseen by the Energy Department’s National Nuclear Security Administration.

“Our military has the capabilities, training and cultural mindset needed to secure the nation’s most powerful weapons,” Turner said, calling the current system for securing nuclear weapons facilities “broken.”

Turner’s office said that, under his legislation, “the military would provide security for nuclear weapons and special nuclear material at NNSA sites in the same manner as it does for nuclear weapons in military custody. In addition, responsibility for securing transportation of nuclear weapons would also shift to” the Defense Department.

The DOE branch today oversees eight nuclear security facilities, including Y-12 and three national laboratories in New Mexico and California.

One potential road block to Turner’s plan is a 19th century law known as the Posse Comitatus Act, skeptics say. The law, which Congress originally passed in 1878 following the 10-year period of post-Civil War Reconstruction, limits the ability of the military to be used for domestic law enforcement. At the time it was passed, the law was considered a reaction to the Army’s occupation of former Confederate states during the Reconstruction period.

Peter Stockton, a senior investigator with the Project On Government Oversight, said Congress explored the possibility of using the military to guard nuclear weapons production sites in the past but dropped the issue in part due to potential conflicts with the Posse Comitatus law. Specifically, Representative John Dingell (D-Mich.), former chairman of the House Energy and Commerce Committee, held hearings on the matter during the late 1970s and early 1980s, said Stockton, who at the time worked for the lawmaker.

While the military is responsible for guarding nuclear weapons in its possession, atomic arms production and research sites have been managed by civilians since the end of World War II. Having military guards at these civilian sites could potentially trigger a conflict with the Posse Comitatus law, Stockton and other observers suggested.

Stockton also questioned whether the Defense Department would be necessarily better at securing the NNSA sites than private protective forces.

“The military is lousy at protecting at protecting their own bases,” said Stockton, who pointed to a string of incidents at Air Force installations in recent years as examples.

In 2008, at least five Air Force units failed reviews of management of nuclear weapons under their care. One year earlier, personnel at Minot Air Force Base in North Dakota mistakenly loaded nuclear-armed cruise missiles onto an aircraft that flew to another base in Louisiana. Other incidents involving Minot included the Air Force disciplining three ballistic missile personnel for falling asleep while in possession of launch code devices and allegations that two officers took classified launch code devices home with them.

Also in 2007, personnel at F.E. Warren Air Force Base in Wyoming mislabeled some nuclear-weapon components that were accidently shipped to Taiwan.

Turner spokesman Thomas Crosson defended the legislation, arguing that NNSA oversight of the nuclear arms complex “has gone from bad to worse” in recent years and that a change is necessary.

“They are failing at warhead [life-extension programs], facility construction and can’t even do their own budget,” Crosson argued. “We should not and won’t wait for there to be a next time when it’s someone more malicious than an 82-year-old nun.”

Crosson also rejected suggestions that militarizing NNSA security could create a potential conflict with the Posse Comitatus Act.

“There is no Posse Comitatus concern,” said Crosson, who argued that military security at NNSA sites would be no different than existing operations at Navy nuclear bases in Georgia and Washington state.

One congressional staffer who follows the issue also raised concerns that making security at the NNSA sites a military responsibility would strain limited DOD resources that are already stretched thin.

Nickolas Roth, a policy fellow at the Center for Arms Control and Nonproliferation, cited similar concerns. He estimated Turner’s bill would require the military to provide more than 2,000 armed guards at NNSA sites at a cost of about $700 million annually. Roth complained that the legislation does not specify whether the Pentagon or the Energy Department would be responsible for providing these funds.

Roth also noted that the bill does not specify which branch of the military would be responsible for the NNSA security. Like Stockman, he noted that the Air Force has had a poor track record on nuclear security in recent years, but suggested that the Navy has been more successful in protecting its atomic assets.

“It’s not clear how it would be implemented,” Roth said of the legislation.

The Defense Department declined to comment on pending legislation.

Stockton, meanwhile, suggested that the standard military practice of periodically rotating personnel between sites could create a situation in which there is limited institutional knowledge amongst the security forces at high-risk nuclear facilities.

In addition, Stockton predicted the House Energy and Commerce Committee might oppose the plan, since it could reduce the panel’s ability to oversee NNSA security activities. While the committee has jurisdiction over the Energy Department, only Turner’s committee would normally have direct say in military matters, Stockton noted.

“I’m not sure this is a realistic suggestion,” Stockton said of Turner’s plan.

A spokeswoman for the Energy and Commerce Committee did not respond to a request for comment.

Limits on military liability could also be a concern if the armed forces took over security at the civilian-run nuclear weapons facilities, the congressional aide told GSN. The staffer, who spoke on condition of anonymity due to not being authorized to discuss the legislation, said liability protections under the Tort Claims Act could prevent civilians from suing the armed forces if they were harmed as the result of military involvement at the nuclear sites. That, the aide said, could create potential civil liberties issues.

Militarizing NNSA security also appears contrary to the intent of legislative language in the fiscal 2013 defense authorization bill that Turner has championed, Roth suggested.

Roth called the relationship between the two pieces of legislation “curious,” arguing that while the goal of authorization language appears to relax federal oversight on NNSA contractors in the interest of increasing efficiency, militarizing agency security would appear to increase, rather than decrease federal involvement at the sites.

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