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Wording Tucked Into Fiscal Cliff Law Eases Nukes Certification Provision

By Elaine M. Grossman

Global Security Newswire

A U.S. Minuteman 3 ICBM takes off in a November 2008 test launch from Vandenberg Air Force Base in California. President Obama on Wednesday signed “fiscal cliff” legislation that amends language on arms control compliance found in a new defense policy law (U.S. Air Force Photo). A U.S. Minuteman 3 ICBM takes off in a November 2008 test launch from Vandenberg Air Force Base in California. President Obama on Wednesday signed “fiscal cliff” legislation that amends language on arms control compliance found in a new defense policy law (U.S. Air Force Photo).

WASHINGTON -- Buried inside legislation to avert the federal budget “fiscal cliff,” passed by the U.S. Senate and House on Tuesday, are two retroactive changes to wording on nuclear arms reductions found in a recently passed defense authorization conference bill.

The alterations pertain to a grand bipartisan compromise hashed out two years ago in which new strategic nuclear arms reductions agreed to by Russia and the United States could proceed as long as the Obama administration fully funded modernization of the aging U.S. nuclear arsenal and atomic weapons complex.

Pursuing Republican support for ratifying the New START arms control deal in late 2010, administration leaders pledged to allocate $85 billion over 10 years for modernizing the nation's nuclear weapons complex.

Among a number of related requirements initiated by the Republican-dominated House regarding the continued implementation of New START was a fiscal 2013 defense authorization demand that the president “certify to the congressional defense committees that the Russian Federation is in compliance with its arms control obligations with the United States.”

According to Capitol Hill sources, the administration had requested that Congress modify this provision’s wording.

In signing the new defense authorization legislation into law on Wednesday, Obama issued a written statement saying he retained the latitude to interpret the bill’s New START implementation restrictions in a manner that would not interfere with his “constitutional authority to conduct diplomacy.”

However, the president also said he was “pleased” that the fiscal cliff legislation -- which he also signed into law via “autopen” while on travel later in the day -- amended the defense bill's problematic prose regarding Russian arms control compliance.

Specifically, the new changes will require the president, in annual New START certification, to state “whether” Moscow is complying with its treaty obligations, rather than “that” the Kremlin is complying. The diction adjustment appears aimed at eliminating a presumption of Russian compliance in the certification process.

Referring to the same sentence in the authorization bill, the executive branch also asked lawmakers to insert the word “strategic” before “arms control obligations.” This new construct would allow the White House to certify Russian adherence to New START strategic nuclear arms control treaty stipulations, even if Moscow is not complying with other treaties involving the United States.

The revised wording would give Russia a pass -- at least in terms of this narrow presidential certification -- for no longer meeting terms of the Conventional Forces in Europe pact, for instance. Russia in 2007 announced it would suspend implementation of the accord.

The Obama White House objects to a number of the New START implementation requirements imposed by Congress, including those that hold the administration’s feet to the fire in funding atomic weapons and infrastructure modernization programs into the future at specific budget levels, noted Jeffrey Lewis, a nuclear arms expert at the James Martin Center for Nonproliferation Studies in Monterey, Calif.

Administration officials are tacitly accepting most of the legislative provisions related to New START even if they are viewed as inappropriate or onerous. As the defense authorization text was initially written, though, the Russia certification provisions were “impossible to meet,” and thus required change, Lewis said.

Under New START, which entered into force in 2011, the United States and Russia each agreed to reduce their deployed strategic nuclear warheads to a 1,550 ceiling by February 2018. The accord also limits fielded nuclear delivery vehicles -- including bomber aircraft and missiles based on land and at sea -- to 700, with an additional 100 allowed in reserve.

“We worked with the administration to facilitate having it happen,” said Claude Chafin, a spokesman for the House Armed Services Committee, referring to the wording adjustment. Republicans on the panel, led by Representative Howard McKeon (Calif.), “didn’t object” to the Obama team’s request, he told Global Security Newswire on Wednesday.

A Defense Department spokeswoman, Lt. Col. Monica Matoush, on Thursday said the Pentagon “will not comment on the internal deliberation between the Department and Congress that led to the change in language.”

A spokesman for the White House Management and Budget Office similarly would not address indications that the wording modifications were discussed at high levels inside the administration. Declining to be named, he also would not say whether Obama would have vetoed the defense authorization legislation if the Russian compliance certification provision had remained unchanged.

“The fiscal cliff package amended a poorly written provision that would have allowed the Russians to dictate U.S. nuclear arsenal policy,” a Democratic congressional source said by e-mail on Wednesday, implying that any Russian treaty noncompliance should not be permitted to force any specific U.S. responses. “Both Republicans and Democrats agreed to the fix, and it was quickly made.”

Similarly, both the Senate Armed Services Committee chairman, Carl Levin (D-Mich.), and ranking member, John McCain (R-Ariz.), “agreed” to the alterations, said a Senate Democratic committee aide. Neither this staffer nor the congressional source was authorized to speak on the record.

Levin, for one, “supports these wording changes because they are consistent with what was originally intended by the conferees,” the Senate aide said.

“Congress’s use of sanctions and reporting requirements reflects the relatively limited tools available to the legislative [branch] on issues of national security and foreign policy,” Lewis said in a Wednesday phone interview. “The administration -- I think rightly -- wanted to restrict the reporting requirements to issues that were germane. If Russia is not in compliance with the Antarctic Treaty, for example, we’re not going to pull out of New START.”

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