NDAA FY18 Watch – Problematic Provisions Regarding Nuclear Weapons and Strategic Stability

The following provisions are currently included in the FY18 National Defense Authorization Act that will be considered by the full House Armed Services Committee this week.

Provision: Limits Funds to Extend New START

  • No funding can be used to extend the Russia-U.S. arms control agreement known as New START beyond 2021 until the President certifies that Russia has destroyed all missiles that are in violation of INF Treaty.
  • Cooper (D-TN) amendment to remove this provision was struck down in the subcommittee by voice vote.

Assessment:

This provision would restrict the President’s ability to extend the arms control agreement that limits Russia’s deployment of nuclear weapons. If the treaty is not extended beyond its 2021 deadline, the United States would lose the ability to conduct 18 annual inspections of Russia’s nuclear forces and would lose access to data exchanges that increase transparency and reduce the risk of miscalculation between U.S. and Russian strategic forces.

Response:

This provision should be removed from the final version of the FY18 NDAA. This provision is not in the interest of the United States and contradicts broad support for New START throughout our country’s military and diplomatic leadership.

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Provision: Limitations on Nuclear Weapon Dismantlement

  • Extends a provision from the FY17 NDAA that caps funding for nuclear weapon dismantlement at $56 million for FY19 through FY21.
  • Cooper (D-TN) amendment striking this provision failed by voice vote.

Assessment:

This provision foolishly limits our ability to dismantle nuclear weapons that have been retired.  The dismantlement process eliminates the security risks associated with stockpiling retired nuclear weapons. There is already a backlog in the National Nuclear Security Administration’s efforts to dismantle these weapons, restricting future funding for this endeavor will exacerbate this problem.

Response:

This provision should be struck.

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Provision: Limitation on Availability of Funds Relating to Implementation of the Open Skies Treaty

  • No funds can be used to conduct a surveillance flight by the United States unless the President submits a plan for all planned flights that year.
  • No funds may be used to modify U.S. aircraft to implement the Open Skies Treaty.

Assessment:

By complicating planning and banning modernization of the sensor technologies employed in treaty flights, these provisions appear designed to needlessly reduce the advantages the United States gains from the Open Skies Treaty. By allowing us, our allies and our competitors to observe each other’s behavior, the treaty enhances stability and reduces mistrust; for that reason, it has broad support throughout the national security community. Such a self-inflicted limitation would be senselessly unilateral: The Department of Defense has already approved the use of modernized sensors on Russian flights.

Response:

The United States has nothing to gain from unilaterally hobbling our implementation of the Open Skies Treaty. The provision should be struck.

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Provision: Intermediate-Range Nuclear Forces Treaty Preservation Act of 2017

  • Requires development of a conventional ground-launched missile system that would violate the Intermediate-Range Nuclear Forces Treaty (INF).
  • Congress determines that, if the President certifies that Russia remains in violation of the treaty over the next year, the United States will no longer consider the treaty’s limits binding.

Assessment:  Make no mistake, this provision has nothing to do with preservation of the INF Treaty.  This is an attempt by Republicans to effectively kill the Treaty.  In doing so, Russia would be free to develop intermediate-range cruise missiles without any constraints, putting our allies at risk and likely spurring a new nuclear arms race. 

Fair or not, U.S. action to develop this ground-launched intermediate range nuclear cruise missile system would place the failure of INF at our feet. The testing of such a system with a range of between 500 to 5,500 kilometers would trigger violation of the INF Treaty. 

Despite the current Russian violation, INF continues to be in the U.S. national security interest.  Our military leaders and allies have continually affirmed that fact. 

This provision would also require a periodical report on Russian INF compliance and a possible assertion that if compliance is not restored, the United States, as a matter of law, would no longer be bound by the prohibitions set forth in the Treaty.  This is an unconstitutional legislative abrogation of the Treaty. Congress can deny appropriations or seek to enact legislation that would make it impossible for the United States to fulfill the obligations of a treaty duly ratified by the President pursuant to the Constitution’s advice and consent requirements.  It does not have the ability to state “as a matter of law” that the United States is not “bound” by an international treaty. 

Response:  This provision should be struck.  Congress can require that the Administration continue to work to get Russia back into compliance with INF and demand reports on that process.  They may also ask for the Pentagon and the Joint Chiefs to keep them informed about their efforts to make sure Russia does not gain any military advantage from this system.  

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Provision: Establishment of a Space Corps in the Department of the Air Force

  • Secretary of Air Force must certify establishment of a Space Corps by January 1, 2019.
  • The mission of the Space Corps is to train and equip combat-ready space forces to fight and win wars.
  • The relationship between the Space Corps and Air Force would function similar to the Marine Corps and Navy – separate entities led by the same civilian leadership.

Assessment:  This provision is premature, unnecessary and it is not supported by the sitting Air Force Secretary Heather Wilson. She has made it clear that a “Space Corps” at this time will make efforts to secure space more complex and more costly. “If I had more money,” she said, “I would put it into lethality, not bureaucracy.”  The entire U.S. military is dependent on space – the focus should be on integration, not separation.  Further, this provision will divert funds from critical and time-sensitive military priorities.

As a note, Chairman Rogers of HASC Strategic Forces Subcommittee was so incensed at Wilson’s assessment that he threatened to reduce her authorities.  Any attempts to limit Secretary Wilson’s duties should be resisted. 

Response:  This provision is premature and should be struck.  For now, Congress should ask the Air Force to submit a report on our capabilities and our ability to protect U.S. and allied assets in space and ask State about the status of further confidence-building measures to avert the militarization of space.

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Provision: Space-Based Sensor Layer for Ballistic Missile Defense

  • Requires the Director of the Missile Defense Agency to provide a plan for assessing, developing, and deploying a space-based sensor layer for ballistic missile defense within one year of the FY18 NDAA’s enactment.

Assessment: This provision requests a report from the MDA on the perceived utility and requirements necessary for a space-based Sensor layer of ballistic missile defense. While the effectiveness and efficiency of the overall proposal will need to be debated before being implemented, this provision should be more specific about its aims and objectives.

Response: Congress should pass an amendment making clear that this provision does not authorize any funds to be expended for the study, research and development, and/or deployment of space-based interceptors (directed energy, kinetic, etc.) of any form. This would ensure that this provision is tailored for space-based sensors only.

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Provision: Restriction of Nuclear Security Cooperation with Russia

  • No funds may be used to cooperate with Russia on nuclear security initiatives.
  • The Secretary of Energy has waiver authority if the threat “arising in the Russian Federation must be addressed urgently and that it is necessary to waive the prohibition to address the threat.”

Assessment: This provision would restrict any cooperation with Russia on a nuclear-related threat in a third country, subjectively limiting U.S. leadership in response to an international incident that could harm U.S. national security.

Response: Congress should strike the language “in the Russian Federation” from section (b) subsection (1) of the provision, allowing for the U.S. to cooperate with Russia on a nuclear-related threat anywhere in the world.