Lawmakers Differ Over Prospects for Nuclear Trade Oversight Reforms

(Mar. 25) -U.S. House Foreign Affairs Terrorism, Nonproliferation and Trade Subcommittee Chairman Edward Royce (R-Calif.), shown above, last week expressed optimism regarding the prospect of Congress winning heightened authority to oversee atomic trade agreements (U.S. Representative Edward Royce photo).
(Mar. 25) -U.S. House Foreign Affairs Terrorism, Nonproliferation and Trade Subcommittee Chairman Edward Royce (R-Calif.), shown above, last week expressed optimism regarding the prospect of Congress winning heightened authority to oversee atomic trade agreements (U.S. Representative Edward Royce photo).

WASHINGTON -- Two key U.S. lawmakers differed last week over the likelihood that proposed reforms aimed at strengthening legislative oversight of civil nuclear trade pacts would be enacted during the current Congress (see GSN, Jan. 31).

Under U.S. law -- specifically, Section 123 of the Atomic Energy Act -- a nuclear cooperation agreement with a foreign nation can go into effect if Congress does not act to stop it within 90 days of continuous legislative session. These accords typically allow Washington to share nuclear materials and expertise with selected nations in support of their civil energy needs.

Over the past year, several lawmakers from both parties have proposed altering the law so that any such pact -- or at least the most controversial among them -- could be implemented only after receiving floor-vote approval from both the House and Senate. These reform proposals have been largely nonpartisan, but were never put to a vote in either chamber.

Representatives Edward Royce (R-Calif.) and Brad Sherman (D-Calif.) -- respectively the chairman and ranking member of the House Foreign Affairs Terrorism, Nonproliferation and Trade Subcommittee -- squared off during a hearing last week over the feasibility of obtaining tighter congressional control over the provisions in these pacts.

Like Royce, Sherman supports heightening this form of Capitol Hill oversight. However, the California Democrat said he thinks the odds are slim of any such measure making it into law unless some legislative maneuvers are employed.

"Let's face it," Sherman said at the full committee hearing on nuclear nonproliferation, held March 17. "The only bills the president is going to sign this year are appropriations bills and post offices. Everything else is a statement. And so if we're going to be able to have Congress play a role in this area, we're going to have to take whatever bill this committee comes up with and insist that it be made part of the appropriations bill."

Sherman is not alone in thinking that no matter who inhabits the White House, a president is unlikely to voluntarily weaken his own ability to implement negotiated nuclear trade agreements -- unless it meant having to reject crucially important legislation, such as a government-funding bill, to which the measure was attached.

The Democrat suggested that the only way that changes to the trade pact review process could proceed would be if they were seen by members of both parties in Congress as reasonable, and if they were made part of federal funding legislation.

"If we're not able to do that -- unwilling to do that, unwilling to cross party lines in order to demand it -- it's not going to happen," Sherman said. "The president is not going to want us to re-inject Congress into the decision-making process."

Royce, though, said getting such legislation enacted might not be as challenging as Sherman thinks. Potentially there are enough congressional votes in favor of reform to override a presidential veto, he suggested.

"I don't think that the problem is as dire as my colleague would indicate," the subcommittee chairman said. "And certainly with the two-thirds override, the administration would, I think, be confronted with the realpolitik of dealing with this issue."

Royce and Sherman actually agree about some important fundamentals: That the United States should make a serious effort to get foreign nations to forswear potential nuclear-weapon activities -- enriching uranium or reprocessing plutonium -- if they want Washington's assistance with civil nuclear power. The Obama administration has dubbed this type of commitment the "gold standard."

Also, while they might differ on the details of desired legislation, the two Californians from opposing parties both support measures that would strengthen Congress's hand in directly approving or disapproving of nuclear trade agreements negotiated by the executive branch.

Royce -- who conceded during the hearing that the appropriations process might offer a good venue for nonproliferation measures -- has voiced support for legislation anticipated within the next month or so from House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen (R-Fla.).

If her new bill mirrors a nonproliferation measure she filed last year, it would require up-or-down votes in the House and Senate on all nuclear trade agreements, replacing the current system for more passive congressional approval following the 90-day waiting period.

"The Atomic Energy Act, which governs these agreements, was written in an era when safe, clean nuclear energy was the hope of the future and proliferation concerns were minimal," she said at last week's hearing. "Over the years, tougher provisions have been written into the act, but the situation remains far from satisfactory."

As it stands, the law leaves Capitol Hill with "little influence," she said, "largely because these agreements automatically go into effect unless those seeking to stop them can secure veto-proof majorities in both houses, a high hurdle indeed."

When drafting the 1957 act, "Congress never intended for our long-term national security interests to be made subordinate to short-term political concerns," Ros-Lehtinen said.

Reform advocates from both parties argue that change is necessary following an administration move last year to apply the gold standard to some agreements around the globe but not to others.

The White House told Capitol Hill last summer that although the United Arab Emirates had volunteered such a commitment in its 2009 trade agreement with the United States, Jordan and Vietnam would not necessarily accede to a pact with such restrictions. Enrichment and reprocessing can be useful for power needs but also introduce the potential to advance a covert nuclear weapons effort.

Both Democrats and Republicans have warned the administration against pursuing new civil nuclear cooperation deals without seeking gold standard provisions. Inside the administration, interagency debate is simmering over the question of whether any future deal with Saudi Arabia must include a commitment not to enrich or reprocess (see GSN, Jan. 25).

Gary Samore, the NSC coordinator for arms control and nonproliferation, in November confirmed that the matter was before Obama to decide, and it appears the president has not yet issued a determination (see GSN, Nov. 19, 2010).

Obama's advisers reportedly are divided over whether a diplomatic effort to seek the gold standard in every new trade pact would unduly hinder the U.S. nuclear industry's effort to compete in building reactors around the globe.

"We don't know where the Jordan and Saudi Arabia agreements or the Vietnam agreements are," said Henry Sokolski, executive director of the Nonproliferation Policy Education Center, testifying before the House committee. "They quietly went into the rear of the freezer [amid] all of the [Middle East] demonstrations, but I don't think they're dead."

"The administration will soon have to decide whether it wants to advance the nonproliferation ball or not," Royce said. "Congress should reclaim powers it surrendered to the executive branch long ago in a different era. We need to act so Congress positively, not passively, approves future nuclear cooperation agreements."

To become law, any measure that passes in the House would first have to go before the Senate, where to date there have been few similar proposals.

Interest in that chamber has begun to percolate recently, though, with a number of Democratic and Republican staffers saying they would like to see legislation that encourages adherence to the gold standard worldwide.

Senator John Ensign (R-Nev.) in January introduced a bill that would require Congress to vote in favor of approving a nuclear trade agreement before it could become law. The lawmaker filed similar legislation last year with then-Senator Russ Feingold (D-Wis.), who later lost his bid for re-election.

Ensign's 2011 measure was referred to the Senate Foreign Relations Committee in early February, but that panel has not yet acted on the proposal.

Royce expressed confidence that the Senate committee's leadership might take interest in the matter.

"We could also run [House] legislation into the Senate and talk to Mr. Lugar and talk to Mr. Kerry and other members of the Senate," said Royce, referring to panel Chairman John Kerry (D-Mass.) and Ranking Member Richard Lugar (R-Ind.).

"Civilian nuclear cooperation agreements need increased oversight and must include stringent standards," Ensign told Global Security Newswire last month in a written statement. "The recent events in Egypt and other Middle Eastern nations, coupled with reports that al-Qaeda is still attempting to acquire components to make a dirty bomb, further underscores the need to take necessary precautions when it comes to proliferation and enrichment."

Back at the House, Foreign Affairs Committee Ranking Member Howard Berman (D-Calif.) is widely expected to join Sherman in pushing for a bill that would subject to congressional vote only those agreements lacking key nonproliferation provisions.

Based on bills filed last year, any Democratic alternative this year is likely to allow the existing, more permissive legislative review period of 90 days for those "123 agreements" in which a partner nation agrees to the gold standard. It might also require that a nation agree to adopt the "Additional Protocol," which involves a more intrusive set of U.N. inspections of nuclear facilities to ensure there is no diversion of sensitive materials to a military program.

Sherman would additionally like to see nations benefiting from nuclear trade agreements with Washington offer liability protections that would allow U.S. companies to compete for reactor sales, and to pledge to restrict third-party access to their nuclear facilities. The latter provision is aimed at preventing nations such as North Korea, Syria or Iran from acquiring U.S. technology or know-how, according to the lawmaker.

"We're told that the UAE ... agreement is the gold standard. It contains only the first two of those provisions, so I'd call it the bronze standard," Sherman said at the hearing. "Let's say that unless an agreement meets the gold standard, it requires an act of Congress to put into effect."

To those who favor Ros-Lehtinen's approach, one advantage of putting each and every U.S. nuclear trade agreement to a congressional vote could be to increase the chances that Washington's diplomatic corps would pursue the tightest nonproliferation standards available.

"Right now we have the leverage," Royce said. "We have the president's statement in Prague in '09 that we were going to face this new paradigm for civil nuclear cooperation in which all countries were going to be able to enjoy the benefits of nuclear power while avoiding the spread of nuclear weapons and technology."

Since laying out this overarching vision, the Obama team sealed the gold standard in the UAE accord but then appeared to walk away from it in negotiations for civil nuclear pacts with Vietnam and Jordan, Royce remarked.

"I think what you call that was driving a stake through the heart over our efforts to stop the spread of nuclear fuel," Royce said. "Once we back off of the position that you had to forgo enrichment and reprocessing, we really are in a new paradigm."

Ros-Lehtinen's approach of advocating for a dramatic change to the atomic energy law might prompt Obama to offer an olive branch to Congress in the form of shoring up the gold standard policy, according to some observers. It also might allow for some legislative give-and-take down the road, perhaps paving the way for bipartisan consensus, some Capitol Hill sources said.

However, Sherman and others are arguing that lawmakers should offer more modest reform approaches from the start.

In this view, Ros-Lehtinen's proposal to jettison the existing review process could prove so alienating to legislators fearful of gutting the U.S. nuclear industry -- particularly amid commercial repercussions anticipated from this month's Japanese nuclear disaster -- that the opportunity to pass any Atomic Energy Act reforms might be dashed, a number of sources said. Under her anticipated measure, even otherwise noncontroversial nuclear pact renewals would be subject to votes and potentially become political lightning rods, according to critics.

It might also risk losing the support of those Democratic lawmakers who are interested in reform but reluctant to fully break ranks with the White House over the issue. Fence-sitters might be even less likely to back reform legislation if the debate begins to polarize along party lines, some congressional aides said.

"We anticipate administration resistance to any effort to strengthen congressional participation in the process," one House Republican aide countered. "Even an incremental addition to Congress's role is likely to produce strong administration resistance."

No one, however, is calling the passage of legislation impossible. The potential even exists for cooperation across the aisle as the committee chairwoman puts the final touches on her measure, according to lawmakers and staff aides.

"On the ... the whole question of our approach to this tremendously important subject of nonproliferation," Berman said last week, "I believe the opportunity for close and bipartisan work exists."

Ros-Lehtinen sounded a similar note of optimism, even if it remained unclear exactly how she and her colleagues would bridge their differences over bill provisions.

"Several other members on both sides of the aisle are considering similar legislation, and I hope to work with them to craft a bipartisan bill that can be passed by this committee quickly, and hopefully, unanimously," she said.

March 26, 2011

WASHINGTON -- Two key U.S. lawmakers differed last week over the likelihood that proposed reforms aimed at strengthening legislative oversight of civil nuclear trade pacts would be enacted during the current Congress (see GSN, Jan. 31).