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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.

Boehner scraps "Plan B," lemmings might want to take note.

Those gearing up to oppose House Republicans’ “Plan B” budget solution received a welcome surprise last night, when Speaker Boehner announced that the plan would not come to the floor.  The measure failed to garner enough Republican support to make even a viable statement.

But what does this mean for the fiscal cliff? Should the lemmings prepare? The President and Congress now have just over a week to strike a deal, and as of yet things aren’t looking good, at least for any hope of a grand bargain.

Reports now indicate that the White House will push for an interim measure that would extend the Bush-era tax cuts on income below $250,000, pause sequestration, and renew unemployment insurance benefits.  This means a large number of tax provisions would expire, bringing in new revenue, and budget cuts would be left to another day.  

A cynical mind might begin to wonder if this could signal the quiet death of sequestration cuts, given that at its outset the mechanism was meant to force Republican members of Congress into a deal on tax cuts.  With the larger goal accomplished, the budget could gently slip back into its old routine, Republicans having dodged the defense budget bullet and Democrats having succeeded in raising taxes on the wealthy.

There’s still a chance for the two sides to come together after Christmas, and who knows, maybe the spirit of the season will take hold.  But just days from the deadline, when any agreement will have to contend with what could be a tough fight in the House, the cliff is beginning to look more and more realistic.

Merry Christmas!  Hope you’re not afraid of heights.

Analysis of the Conference Version of the FY 2013 NDAA

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 on December 20, with the Senate expected to act soon thereafter.

The Conference report authorizes $633.3 billion for defense, including $527.5 billion for the Pentagon base budget, $88.5 billion for the war in Afghanistan and $17.4 billion for the national security programs in the Department of Energy and the Defense Nuclear Facilities Safety Board.

The House version of the NDAA included a number of policy and funding proposals that would 1) block the Pentagon’s ability to implement the New START treaty; 2) prevent the President and senior military leaders from making changes to U.S. nuclear posture beyond those outlined in the 2010 Nuclear Posture Review and agreed to in the New START treaty; and 3) drastically increase spending on nuclear weapons programs and national missile defense. See our full analysis of the House bill here.

The Senate version generally did not impose policy or funding limitations on New START implementation or future changes to US nuclear policy, posture, and force size. However, like the House version of the bill, the Senate version required construction of a new plutonium facility at Los Alamos National Laboratory in New Mexico (aka the Chemistry and Metallurgy Research Replacement Nuclear Facility (CMRR-NF)) by the end of 2024. See our full analysis of the Senate bill here.

The Conference report watered down or eliminated most of the objectionable House nuclear provisions, usually substituting certification requirements or reports. However, the agreement requires the construction of an unnecessary new plutonium facility at Los Alamos, authorizes the expenditure of funds to complete the design (but no construction funds) of this new facility, and prohibits the expenditure of funds on an alternative strategy to sustain US plutonium capabilities that does not include achieving full operational capability of a new facility by the end of 2026. Senate and House appropriators have refused to appropriate funds for the new facility at this time as essential plutonium missions can be performed for less money by the existing complex.

The Conference report also calls for a study of at least three possible additional missile defense locations in the United States, but eliminated a House requirement for deployment by 2015. Given the severe limitations of existing long-range defenses, rushing to develop a plan to deploy an additional defense site on the East Coast or elsewhere does not make technical or financial sense.

Despite objections from the Obama Administration, the legislation includes additional economic sanctions on Iran’s energy and shipping sectors. The Conference report does “increase some of the time that is available to them to implement this legislation,” according to Chairman of the Senate Armed Services Committee Carl Levin, but remains largely unchanged from the original Senate version.

The Conference report rejects House language that would encourage a large-scale troop presence in Afghanistan until 2014. It endorses the President’s stated goal of transitioning lead responsibility to the Government of Afghanistan by mid-summer 2013 and states that the President should end all regular combat operations by December 31, 2014.

Additionally, the legislation rejects Senate language banning indefinite detention of suspects held as a result of the “war on terror,” bars the transfer of detainees from Guantanamo Bay to the US for one additional year, and rejects a House provision that would ban the purchase of biofuels by the US military.

Click the image below for a detailed overview of many the key nuclear and non-nuclear provisions.

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 […]