Prospects for the latest US nuclear security bill

Jun 20 2013
VERTIC Blog >> National Implementation Measures

By Sonia Drobysz, Paris

On 20 May, the United States House of Representatives voted in favour of ‘An act to amend title 18, United States Code, to provide for protection of maritime navigation and prevention of nuclear terrorism, and for other purposes.’ Adopted with a 390-3 vote, bill H.R. 1073 was introduced on 12 March by Republican Representative Jim Sensenbrenner. He explained that the legislation had been prepared ‘in full cooperation with’ Democratic colleagues.

The so-called ‘Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2013’ is the implementing legislation for four major nuclear security and terrorism treaties: the International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT), the Amendment to the Convention on the Physical Protection of Nuclear Material (CPPNM amendment), and two 2005 protocols to the Convention concerning Safety of Maritime Navigation and to the Protocol concerning Safety of Fixed Platforms on the Continental Shelf. The Senate adopted resolutions of advice and consent for all four treaties’ ratification in 2008 (see, for example, Senate Report on Resolution of advice and consent to ICSANT ratification), declaring that certain provisions were self-executing. As noted in the resolutions, however, other provisions obligate the US ‘to criminalize certain offenses, make those offenses punishable by appropriate penalties, and authorize the assertion of jurisdiction over such offenses.’ United States Code Title 18 on crimes and criminal procedure should therefore be amended to set up ‘a comprehensive domestic legal framework’ indispensable to combatting terrorist threats effectively, as sponsor James Sensenbrenner pointed out.

From that perspective, bill H.R. 1073 defines and clarifies key treaty terms such as ‘radioactive material,’ ‘nuclear material,’ ‘nuclear facility,’ and ‘device.’ It also provides for new offences and associated penalties, including maritime terrorism acts and the maritime transport of biological, chemical, or nuclear weapons (‘‘BCN weapons’’), unlawful possession and use of radioactive material with the intent to cause death, serious bodily injury or substantial damage to property or the environment, as well as attempts, threats, and conspiracies to commit these offenses. Damaging or interfering with the operation of a nuclear facility in a manner that causes the release of or increases the risk of the release of radioactive material, causes radioactive contamination or exposure to radiation is also criminalized.

As explained in House report 113-85, U.S criminal jurisdiction is expanded over, for instance, prohibited activities against U.S. ships ‘to include not just those ships flying the flag of the United States, but also “a vessel of the United States or a vessel subject to the jurisdiction of the United States.”’ Prohibited activities committed by a United States corporation or legal entity would also fall within US jurisdiction, in addition to those committed by a national of the United States or by a stateless person whose habitual residence is the United States. Furthermore, national enforcement measures are strengthened, updating ‘grounds permitting the master of a ship to deliver an offender to another state, under certain conditions, to include the new offenses.’

House report 113-85 rightly emphasizes that the legislation ‘enhances U.S. national security by modernizing and strengthening the international counterterrorism and counter proliferation legal framework and improving multilateral efforts to combat terrorism and nuclear proliferation’, and complements ‘important United States priorities such as the Global Initiative to Combat Nuclear Terrorism, the Washington Nuclear Security Summit, and the Proliferation Security Initiative.’

Effective national implementation measures for radiological and nuclear treaties and related instruments are in fact crucial to help combat the illicit trafficking and misuse of nuclear and radioactive materials. Leaders at the 2010 Washington and 2012 Seoul Nuclear Security Summits encouraged all States ‘to enhance their physical protection of and accounting system for nuclear materials, emergency preparedness and response capabilities and relevant legal and regulatory framework’. The IAEA Nuclear Security Plan for 2010-2013 also affirms the need to enhance the global nuclear security framework, especially through facilitation of implementation of the international legal instruments relevant for nuclear security, including the CPPNM amendment and ICSANT. Adoption of effective implementing legislation in the US would be in line with such objectives and should also, as noted by the House report, ‘reinforce the United States’ leading role in promoting these and other counterterrorism treaties and will prompt other States Parties to join.’

But as the bill moves to Senate, its future remains uncertain. Previous attempts to adopt similar legislation failed in 2012. Measures on the application of the death penalty for certain nuclear terrorism offences and on extension of federal wiretapping authority to specifically include investigations related to a nuclear incident turned the project into a ‘legislative quagmire’. Removal of such measures allowed the House to pass the bill on 28 June 2012, but pushed Senate Judiciary Committee Ranking Member Charles Grassley to oppose the bill and reintroduce the contentious language.

As explained by Republican co-sponsor John Conyers on March 14, the 2013 proposal is ‘free of proposed language that seemed entirely […] outside the scope of underlying treaties.’ He explained: ‘the Administration's original proposal expanded the scope of conduct subject to the death penalty, including new wiretap predicates, and authorized the President to conduct similar agreements in the future without congressional approval. These controversial provisions are not necessary in order to implement the underlying treaties, and I am grateful for the spirit of cooperation in which the bill before us has been drafted.’ The National Journal and Global Security Newswire reported that Senator Grassley, for his part, would now be willing to consider the bill on the Senate floor with a time agreement and a vote on the death penalty.

John Conyers nonetheless noted that the ‘bipartisan proposal has the full backing of the Obama Administration, is virtually identical to a bill that passed by voice vote in this committee and House last Congress’, and accordingly ‘urge[d] all the members to support the bill.’ Hopefully Senators will hear him, so efforts to effectively implement nuclear security and terrorism conventions can be pursued.


Last changed: Jun 20 2013 at 10:30 AM