U.S. Nonproliferation Legislation Could Gain Steam in GOP-led House

(Nov. 3) -U.S. House of Representatives Minority Leader John Boehner (R-Ohio), center, takes questions from reporters today at the U.S. Capitol. Republican gains in yesterday's midterm election might help boost Atomic Energy Act revisions in Congress, experts said (Win McNamee/Getty Images).
(Nov. 3) -U.S. House of Representatives Minority Leader John Boehner (R-Ohio), center, takes questions from reporters today at the U.S. Capitol. Republican gains in yesterday's midterm election might help boost Atomic Energy Act revisions in Congress, experts said (Win McNamee/Getty Images).

WASHINGTON -- The Republican leadership takeover of the U.S. House of Representatives could result in new impetus to pass legislation aimed at stemming the spread of nuclear arms, according to Capitol Hill aides and observers (see GSN, Oct. 7).

Both parties this year have displayed interest in amending the 1954 Atomic Energy Act to help ensure that any civil nuclear cooperation agreements that Washington signs with foreign nations include strong nonproliferation provisions. The so-called "123 agreements" -- named for a section of the law -- allow selected countries to buy U.S. nuclear materials and technology for their civil power programs.

However, measures proposing to amend the law have not yet come to a vote. With yesterday's historic GOP gains in the House and new seats in the Senate, the issue could be poised to pick up additional interest among Republicans as a partisan tool against the White House.

Bipartisan support for changes to the law could constitute a rare display of congressional unity -- but one that is largely unwelcome in the eyes of the Obama administration, according to pundits. Like any administration, this executive branch has sought to maintain maximum latitude in negotiating international agreements.

President Obama, in particular, has made a commitment to nonproliferation a central pledge of his administration. Yet his team has been criticized by key Democrats and Republicans for pursuing civil nuclear cooperation deals this year with Vietnam and Jordan that could exclude provisions to discourage proliferation that were secured in an earlier atomic trade pact with the United Arab Emirates.

The Persian Gulf nation pledged in its 2009 agreement not to engage in uranium enrichment or plutonium reprocessing, activities that can be used for generating civil nuclear power but also could potentially contribute to building atomic bombs. It is unclear whether Vietnam or Jordan would balk at such conditions in their own bilateral agreements with the United States.

Following administration briefings on Capitol Hill this summer to describe the new nuclear accords, House Foreign Affairs Committee Chairman Howard Berman (D-Calif.) blasted off a letter to the White House saying he could not support the Vietnam and Jordan pacts without stronger nonproliferation controls, according to congressional staffers. The letter has not been released.

In response, the Obama administration quietly launched an interagency review of the matter, the results of which were sent to the president last month, sources told Global Security Newswire. However, that was only after Deputy Energy Secretary Daniel Poneman squared off on the issue with James Steinberg, the No. 2 at the State Department, at a National Security Council deputies' meeting, insider sources said.

Steinberg reportedly argued that nonproliferation concerns must weigh significantly into decisions about nuclear cooperation. Poneman insisted, though, that attempting to restrict what some nations regard as a right to nuclear power could be a showstopper for selling advanced U.S. energy technologies abroad, according to Washington sources.

"Are we going to be serious about shoring back the bomb-making capabilities or not?" Edward Burrier, a Republican House staffer, said at an Oct. 28 panel discussion. "This is the acid test. And unfortunately ... it looks like they're going to fail it," he said of administration officials.

Burrier is a legislative aide to Representative Ed Royce (R-Calif.), the ranking member of the House Foreign Affairs Terrorism, Nonproliferation and Trade Subcommittee. It is unclear whether Royce will chair the subcommittee in the next Congress, as he has been cited in news reports as a possible pick to head the House Financial Services Committee.

How the administration resolves the issue could have implications for its policy on Iran. In the lead-up to possible talks with Tehran, the Obama team is weighing whether it could accept any continuation of the Middle Eastern nation's ongoing uranium enrichment. Iran's enrichment activities are broadly believed to advance its widely assumed effort to develop a nuclear weapon, though Tehran insists its motives are peaceful.

"How do you cut a deal [in which] you've got enrichment technology on Iranian soil, but then you're telling Jordan, Vietnam, UAE [and] others, 'Oh, you can't have this'?" Burrier said at the panel discussion, co-sponsored by the Nonproliferation Policy Education Center and the Foreign Policy Initiative. "This is the kind of dangerous box they're putting themselves in."

Nine existing nuclear cooperation agreements expire between 2012 and 2015, all of which will likely be renegotiated and submitted to Congress for review, according to Berman. The administration has also signed memoranda of understanding with Saudi Arabia and Kuwait, signaling that cooperative pacts might someday be in the offing with those states.

Gary Samore, the White House point man on nonproliferation issues, declined to discuss the deputies' meeting during a speaker event last month. However, he said that in crafting atomic trade agreements, it is appropriate to customize different policy approaches for particular nations.

"[The] mix of instruments that we use is going to vary, depending upon different countries," Samore said at an Oct. 18 event sponsored by the American Association for the Advancement of Science. "Some countries will be prepared to accept some mixture of instruments; others will be prepared to accept others. And I don't think we're likely to have a system that is uniform across the world."

Pending a presidential decision, the apparent White House policy scuffle is solidifying the determination of lawmakers on both sides of the aisle to advance legislation in the upcoming Congress that would tighten the rules under which any civil nuclear deal can proceed, Capitol Hill aides said. Several asked not to be identified in this article because they were not authorized to speak publicly about the matter.

Even prior to the latest skirmish on opposing ends of Pennsylvania Avenue, House leaders on international affairs issues from both parties have supported making changes to the Atomic Energy Act, which was last amended in 1978. The Senate has been slower to consider such measures, but there appears to be bipartisan support in that chamber, as well, for exploring at least some amendments to the law.

At the House, Berman is expected to introduce legislation next year that would raise the bar for any 123 agreement that by current law can go into effect if Congress has not acted to stop it within 90 days of continuous legislative session.

The California Democrat has proposed amending the Atomic Energy Act to require that a nation entering into a nuclear power technology-sharing accord with the United States must forgo any enrichment or reprocessing on its territory.

Berman also wants to ensure that any nation that is party to a nuclear cooperative pact with the United States agrees to accept the Additional Protocol, which allows for more intrusive U.N. inspections of its facilities to help ensure there is no diversion of materials to military programs.

Another key player in the chamber -- House Foreign Affairs Terrorism, Nonproliferation and Trade Subcommittee Chairman Brad Sherman (D-Calif.) -- last spring laid out two additional criteria that forthcoming legislation might require the administration to meet in any 123 pact.

First, a nation should agree to adopt liability protections that would allow U.S. companies to compete for reactor sales, he said. Second, that nation should also pledge to restrict third-party access to its nuclear facilities -- a provision that could help prevent countries like North Korea, Syria or Iran from acquiring U.S. technology or know-how, according to Sherman.

"A State Department [spokesman] has since described the UAE nuclear cooperation agreement as the 'gold standard' for such agreements, and I agree," Berman, the now-outgoing committee chairman, said at a Sept. 24 hearing. "The U.S. should seek the same commitment for every new nuclear cooperation agreement that it negotiates in all regions of the world. We should also consider making this an additional statutory requirement in the Atomic Energy Act."

Under Berman's forthcoming bill, the White House could still negotiate civil nuclear agreements with foreign nations without meeting these nonproliferation conditions. However, under the anticipated legislation, these accords would not be considered 123 agreements, and thus would be subject to greater congressional scrutiny. Such a pact would have to go before Congress for an affirmative vote rather than enter into force automatically after the 90-day waiting period, according to House sources.

In many cases, the White House would simply avoid sending to Congress an agreement that did not meet the stricter nonproliferation test for 123 pacts, rather than take on a big fight with lawmakers, one Capitol Hill aide speculated.

"Fundamentally, what we're really concerned about in nuclear agreements is whether it undercuts nonproliferation," the aide said. "If it doesn't meet those conditions, Congress should have a longer deliberative process and should vote on it."

Representative Ileana Ros-Lehtinen (R-Fla.), the presumptive incoming House Foreign Affairs Committee chairwoman, has a similar legislative measure of her own.

In January she introduced a bill that would amend the Atomic Energy Act to require that only those 123 agreements that receive an affirmative vote by Congress can enter into force, effectively strengthening lawmakers' ability to put the brakes on any proposed agreement.

Ros-Lehtinen, who also recently complained to the White House that the Vietnam and Jordan accords must include nonproliferation safeguards, is expected to reintroduce her Atomic Energy Act amendment legislation in the 112th Congress. Sherman supported her bill this year.

"The administration will oppose this, there's no question," one congressional aide told GSN this week, referring to House efforts to tighten the Atomic Energy Act provisions. "No matter who's in office, that'll be the case."

Once Berman becomes the committee's ranking member in January, he is expected to ask Ros-Lehtinen to hold at least one hearing with administration witnesses to testify on the legislative proposals before a vote on amending the nuclear energy law is taken. Action on the matter might even occur as early as this month's lame-duck session, but House aides regard that as unlikely.

Though Democrats and Republicans might differ on some bill details, what has become clear to both sides is that support exists across the aisle for the notion of holding 123 agreements to a stricter standard.

All four House principals on the issue -- Ros-Lehtinen, Berman, Royce and Sherman -- have "expressed a desire, or at least an interest, in reforming the law," said one House staff aide this week.

Even with the change in House leadership, "I expect bipartisan support" for amending the Atomic Energy Act, said another staffer. "The question is: How far do you go?"

While responses to this question have been relatively party-neutral to date, partisan politics might attract additional Republican interest on Capitol Hill, according to nonproliferation expert Henry Sokolski. After all, he and others noted, the congressional initiatives could be seen as faulting Obama's handling of one of his signature issues. The criticism might particularly gain traction in the run-up to the 2012 presidential election.

"There's always a desire when a party gets control of one of the houses to pass legislation that might be embarrassing to the prevailing party [in] the White House," said Sokolski, executive director of the Nonproliferation Policy Education Center and co-sponsor of last week's panel discussion. "This is the beginning of hope," he said, because it signals a new "interest in substance."

One factor in potentially attracting wider GOP interest in the debate could be a 123 agreement with Russia the Obama administration submitted to Congress earlier this year, several Capitol Hill sources noted (see GSN, May 5). The pending accord, first proposed by the George W. Bush administration, has elicited scorn from Ros-Lehtinen and other Republican lawmakers, who say Washington should not be rewarding the Kremlin with nuclear trade when its record on Iran's atomic development effort has been spotty.

Unless the upcoming lame-duck session is extended, it appears Congress will recess prior to the required 90 days for tacit approval of the Russia agreement. Issue experts are watching whether the White House will resubmit the pact again in January.

Arcane nuclear cooperation debates typically have not drawn much interest on Capitol Hill outside of a small handful of lawmakers. Increased partisanship could actually change that picture in favor of a broader goal, one that Obama appears to support, Sokolski said.

"Emotion drives reason in politics," Sokolski said. "I've always been a great proponent of trying to find the partisan angle on everything, because without partisanship you can't get people to pay attention to the arguments."

"I can see how [Sokolski] would say" the civil nuclear debate could become partisan "if the Obama administration gives the Republicans the ammunition to do that. But this administration tightened up the UAE agreement" to proscribe the Emirates' reprocessing or enrichment, said one congressional aide.

"The Obama administration has not sallied forth and taken a position on amending the Atomic Energy Act," the staffer said. "If the White House opts not to resubmit the Russia agreement and adds nonproliferation provisions to the Vietnam and Jordan pacts, that could cut the legs out of any partisan effort to embarrass Obama on civil nuclear issues."

Thus far, it seems neither the Democrats nor Republicans are playing the issue for symbolic value or political point-scoring. For one thing, "too few people are aware of [the issue], so it wouldn't be a very useful tool against the administration," said one Capitol Hill aide.

Congressional staffers said they expect that whichever proposals for revising the Atomic Energy Act move forward in the House, there will be a serious effort to draft similar measures in the Senate and find legislative vehicles to carry the changes into law. With opposition from the White House widely anticipated and veto-proof votes unlikely, negotiations between Capitol Hill and the White House on the matter are expected.

The even tougher sell might be Washington's foreign competitors for nuclear power business, experts point out. The Bush administration proposed a new set of guidelines for global technology sharing that might help discourage proliferation, but the issue has remained under debate at the Nuclear Suppliers Group for six years (see GSN, July 2).

The Bush effort "failed" because "a number of countries -- some for reasons that had to do with civil nuclear energy interests, some because they wanted to preserve their nuclear weapons options -- were not prepared to sign on to a new international system that limited enrichment and reprocessing to a very small number of countries that currently possess it," said Samore, Obama's special assistant and coordinator for arms control and weapons of mass destruction, proliferation and terrorism.

He said the Obama administration would continue the effort to build consensus around nuclear trade guidelines at the organization of nuclear-exporting states. Washington would also pursue an initiative to create a global "nuclear fuel bank" that could supply civil power programs, reducing the need for indigenous enrichment or reprocessing, he said.

As things stand, though, some international suppliers have proven adept at landing sales of nuclear reactors and related technology without attaching the kinds of nonproliferation strings under debate in Washington today.

"The U.S. efforts to prevent the spread of nuclear bomb-making capability are undermined by other countries," said one Capitol Hill aide. "France and Russia are in it for commercial purposes and will not put in any limitations that would convince people to buy from other sources."

November 3, 2010

WASHINGTON -- The Republican leadership takeover of the U.S. House of Representatives could result in new impetus to pass legislation aimed at stemming the spread of nuclear arms, according to Capitol Hill aides and observers (see GSN, Oct. 7).