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The Fiscal Cliff Deal and Nuclear Reductions

On January 1, as I was psychologically preparing for the Rose Bowl (sadly my Wisconsin Badgers lost for the third year in a row), I was shocked to find that the text of the Biden-McConnell fiscal cliff deal (H.R. 8) included a section on strategic delivery systems. Obviously intrigued, I had a look at the text and found that the provision amended Section 1035 of the Fiscal Year 2013 National Defense Authorization Act (NDAA) “(1) by striking ‘‘that’’ before ‘‘the Russian Federation’’ and inserting ‘‘whether’’; and (2) by inserting ‘‘strategic’’ before ‘‘arms control obligations’’.”

Now doubly intrigued, I went back and had a look at the original text of Section 1035 in the NDAA. The specific language in question stated:

`(c) Prior Notification- Not later than 60 days before the date on which the President carries out any reduction to the number of strategic delivery systems, the President shall–

`(1) make the certification under subsection (a) for the fiscal year for which the reductions are proposed to be carried out;

`(2) transmit the additional report matters under subsection (b) for such fiscal year, if such additional report matters are so required; and

`(3) certify to the congressional defense committees that the Russian Federation is in compliance with its arms control obligations with the United States and is not engaged in activity in violation of, or inconsistent with, such obligations.

It turns out that the President would be unable to certify that Russia is in compliance with all of its arms control obligations since Russia is in fact not in compliance with all of its arms control obligations if said obligations are defined to include the Conventional Forces in Europe Treaty (CFE), the Chemical Weapons Conventions (CWC), etc. Given the President’s inability to certify “that the Russia Federation is in compliance…” the provision could prevent the reduction of strategic delivery systems under the New START treaty (and beyond). By adding “whether” in place of “that” and “strategic” before “arms control obligations”, the language cannot stop reductions required by New START and is consistent with the rest of the provision.

I missed this subtle wording during my first run through of the NDAA, but thankfully better minds in the administration did not. Indeed, the administration issued a signing statement with the bill which included this:

Section 1035, which adds a new section 495(c) to title 10, is deeply problematic, as it would impede the fulfillment of future U.S. obligations agreed to in the New START Treaty, which the Senate provided its advice and consent to in 2010, and hinder the Executive’s ability to determine an appropriate nuclear force structure. I am therefore pleased that the Congress has included a provision to adequately amend this provision in H.R. 8, the American Taxpayer Relief Act of 2012, which I will be signing into law today.

Clearly this was a very big deal behind the scenes (it has also generated a surprising amount of media coverage) and the language of the statement suggests the President may not have signed the NDAA if this provision wasn’t fixed. What’s less clear is whether the House authors of this conference provision, which was a compromise version of two differing provisions on strategic delivery system reductions in the original House and Senate version of the defense bill, deliberately worded Section 1035 to prevent implementation of New START, made a drafting error, or something in between.

In any event, it’s obviously a good news that the problem was fixed (reportedly there was bipartisan agreement on the need for the fix). As our friends at the Arms Control Association point out, New START shouldn’t be “held hostage to longstanding disagreements with Russia on other issues.”

I’d go a step further and argue that even the amended version of Section 1035 is unnecessary and redundant because the issues it raises re: nuclear weapons spending and Russian compliance with New START are already adequately addressed in the New START resolution of ratification and the FY 2012 NDAA.  

While Section 1035 may not initially have been deliberately worded to impede New START, Republicans on the House Armed Services Committee have been on a mission the last two years to delay and even block implementation of the treaty and further changes to US nuclear posture via the NDAA. As we’ve tried to regularly remind readers, doing so defies the bipartisan counsel of former government officials and military leaders and would be a major setback for US national security.

Laicie Olson and Kingston Reif Quoted on 2013 NDAA in the Korean Herald

Revised U.S. defense act urges tougher measures against N.K. By Shin Hyon-hee The Korean Herald The NDAA resulted from months-long negotiations between Democrats and Republicans through the double-chamber legislature’s conference committee. The Democrat-controlled Senate had resisted some hard-line proposals from the Republican-dominated House including the MD base plan due to uncertainty and budget pressure. It […]

Analysis of the Conference Version of the FY 2013 National Defense Authorization Act (NDAA)

by Kingston Reif and Laicie Olson On December 18 the Senate and House Armed Services Committees filed the Conference version of the FY 2013 National Defense Authorization Act (NDAA). Click here for the text of the Conference report and here for the Joint Explanatory Statement. The House is scheduled to take up and approve the bill […]

Nukes, the Shaheen Amendment, Afghanistan and Spending Money on Unneeded Programs

Key arms control and national security policy differences remain to be resolved by the House-Senate conference committee including the East Coast missile defense system, withdrawal of American troops from Afghanistan, strategic arms reductions under the New START Treaty, the Shaheen amendment to protect military victims of sexual violence and funding for the next generation of Ohio-class strategic nuclear submarines, long-range bombers and the plutonium research facility at Los Alamos.

Senate Approves FY 2013 National Defense Authorization Act by vote of 98-0

NOTE: This post is being regularly updated in response to events on the Senate floor

On December 4 the Senate approved the FY 2013 Defense Authorization Act (NDAA) – S. 3254 – by a vote of 98-0. The Senate considered 145 amendments to the legislation.

The bill authorizes $631.4 billion for defense, including $525.8 billion for the base budget, $88.2 billion for the war in Afghanistan and $17.4 billion, mostly for the Department of Energy nuclear weapons programs.

The Senate began debate on the legislation on November 27. Initially there appeared to be an unwritten agreement that the bill must be passed and off the floor by the end of the day Friday (November 30). However, bill managers Armed Services Committee Chairman Sen. Carl Levin and Ranking Member Sen. John McCain missed this unofficial deadline. Majority Leader Sen. Harry Reid (D-NV) filed cloture on the bill on November 30. The Senate voted to invoke cloture on the bill on the evening of December 3.

See here for our earlier analysis of the House version of the bill. Click here for our take on the Senate Armed Services Committee version of the bill.

On November 29, the Obama administration released a statement of administration policy threatening to veto the final version of the bill if it includes certain provisions with which it has significant concerns, including a provision that would provide funding for and require construction of the Chemistry and Metallurgy Research Replacement Nuclear Facility (CMRR-NF).

Below is a list of the amendments that were filed on nuclear weapons including their final fate. The bill now moves on to a House-Senate conference committee which will iron out the differences between the two versions of the bill. Key differences between the bills re: our portfolio include a House-proposed East Coast missile defense site, House-proposed increases on nuclear weapons spending, House-proposed limitations on the implementation of the New START treaty, and more.

  • Iran Sanctions: Menendez (D-NJ)-Kirk (R-IL) amendment No. 3232 (APPROVED 94-0) to enhance sanctions imposed with respect to Iran. The amendment would bar all transactions with Iran’s energy, shipping and shipbuilding sectors and its ports, and would ban the sale to Iran of certain metals, including graphite, aluminum, steel and metallurgical coal used in those sectors, as well as other industrial processes.
  • National Nuclear Security Administration: Kyl (R-AZ)-Tom Udall (D-NM) amendment No. 2927 (MODIFIED AND APPROVED BY UNANIMOUS CONSENT) to set up a Congressional advisory panel on the governance structure of the National Nuclear Security Administration, the agency tasked with managing US nuclear warheads and their supporting infrastructure.
  • National Nuclear Security Administration: Nelson (D-NE) amendment No. 3279 (APPROVED BY VOICE VOTE) calling for additional external and independent oversight of the National Nuclear Security Administration by the Department of Energy.
  • Nuclear Triad: Hoeven (R-ND)-Tester (D-MT)-Hatch (R-UT) amendment No. 2991 (APPROVED BY UNANIMOUS CONSENT) expressing the sense of the Senate that (1) the United States should maintain a triad of strategic nuclear delivery systems; and (2) the United States is committed to modernizing the component weapons and delivery systems of that triad.
  • Intercontinental Ballistic Missiles (ICBMs): Hoeven (R-ND) amendment No. 2992 requiring the United States to maintain 450 operational land-based intercontinental ballistic missile launch facilities whether in deployed or non-deployed status.
  • Intercontinental Ballistic Missiles (ICBMs): Barasso (R-WY)-Hoeven (R-ND)-Enzi (R-WY)-Tester (D-MT)-Hatch (R-UT) amendment No. 3083 (APPROVED BY UNANIMOUS CONSENT) allowing the Secretary of Defense to maintain the readiness and flexibility of the ICBM force.
  • Missile defense: Ayotte (R-NH)-Lieberman (I-CT)-Collins (R-ME) amendment No. 3003 (WITHDRAWN) to require by the end of 2013 a report on three possible locations for an East Coast missile defense site, an environmental impact statement for each possible location, and a plan to deploy an appropriate missile defense interceptor for a missile defense site on the East Coast.
  • Nuclear Terrorism Prevention: Grassley (R-IA) amendment No. 2990 to attach the Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2012 to the FY 2013 NDAA. For more information on this issue, see here.
  • Plutonium Pit Reuse: Kyl (R-AZ) amendment No. 3033 to require a report on the feasibility, cost, and advisability of reusing plutonium pits in nuclear warheads.
  • Arms Control Negotiations with Russia: Kyl (R-AZ) amendment No. 3123 3239 (MODIFIED AND APPROVED BY UNANIMOUS CONSENT) requiring the Secretary of Defense to provide Congress with regular briefings and updates on the military implications of proposals of the United States and Russia under consideration in negotiations on nuclear arms, missile defense, and long-range conventional strike systems. There is also a sense of the Senate recommending Senate treaty approval for any negotiated arrangements obligating the U.S. to reduce or limit forces or armaments “in any militarily significant way.”
  • Nuclear Nonproliferation and Nuclear Security: Risch (R-ID) amendment No. 3094 (APPROVED BY UNANIMOUS CONSENT) requiring the Secretary of Energy to carry out a program on scientific engagement in countries selected by the Secretary for purposes of the program in order to advance global nonproliferation and nuclear security efforts.
  • Medical Isotope Production: Bingaman (D-NM)-Murkowski (R-AK) amendment No. 3208 (APPROVED BY UNANIMOUS CONSENT) to promote the production of molybdenum-99 in the United States for medical isotope production, and to condition and phase out the export of highly enriched uranium for the production of medical isotopes.