Mark HibbsKSA and Part 810: Inform Congress

On April 18, the Congressional Research Service (CRS) published a brief on how the U.S. Department of Energy (DOE) allows U.S. nuclear vendor firms to provide assistance and transfer technology to their foreign partners under 10 C.F.R. Part 810 regulations, and also about the basis in U.S. law for Congressional access to information about authorizations that DOE has granted.

The report was written and published in response to Congressional interest after the Congress and the Trump Administration sparred for several months over requests by lawmakers that DOE provide them information about the contents of seven Part 810 authorizations. DOE awarded these to U.S. industry firms related to efforts by President Donald Trump and DOE Secretary Rick Perry to negotiate a bilateral agreement for peaceful nuclear cooperation with the Kingdom of Saudi Arabia (KSA).

The CRS document spells out for all concerned that Secretary Perry should reveal to the Congress information concerning the contents of those Part 810 authorizations for the KSA.

I provided the background of this debate in this post published on April 16. Lawmakers requested information on the Part 810s for the KSA as they became aware that individuals had urged the President to support a scheme to export nuclear power plants to the KSA under conditions that White House personnel had warned might involve a conflict of interest with U.S. law. In writing that post, I was satisfied that DOE had acted within its authority in awarding the Part 810s without Congressional review; I steered clear however of separate Congressional and media claims that the authorizations for Saudi Arabia were “secret,” assertions that might imply that they were irregular or even illegal.

The above-cited CRS report makes clear how the Part 810s are awarded and on what basis Congress may get access to their content. Do read the report if you want to know what the facts are.

The bottom line concerning the Congress is that under Section 123e of the Atomic Energy Act (AEA), the President must keep the foreign affairs committees of both Houses of Congress “fully and currently informed of any initiative… relating to a new or amended agreement for peaceful nuclear cooperation;” and that AEA Section 303 requires the DOE Secretary to keep the Senate and the House “fully and currently informed with respect to the activities of the [DOE] Secretary.” Even more broadly, Section 303 requires “any government agency” to “furnish any information requested” by the Senate and House committees of jurisdiction “with respect to the activities… of such agency in the field of nuclear energy” within its jurisdiction.

This language is abundantly straightforward to conclude that DOE Secretary Perry should finally inform the Congress about what’s in those Part 810s for nuclear cooperation with Saudi Arabia. He should provide information to the extent that, in making any information public, he doesn’t violate common understandings about what are “proprietary information or trade secrets” which under AEA Section 57b require the “maximum degree of protection affordable by the law.” Fulfilling that legal requirement should not have to imply that DOE cannot give information to lawmakers on the basis that they respect its confidentiality.

What was the Problem?

Trench warfare over access to information about awarded Part 810s is a very rare event. So why did DOE’s granting of Part 810s in this case blow up in the Congress? In asking on and around Capitol Hill, you get several partial answers, the most frequently elaborated being these: 1.) unique concerns about proliferation risks in the KSA, and 2.) the relationship between Congress and the Executive Branch, particularly in this administration.

Congressional sensitivities concerning Saudi Arabia: The KSA is not on the DOE’s list for general authorizations for Part 810s. According to one former U.S. Senate staffer familiar with these issues, the Part 810s awarded for nuclear trade with the KSA are unusual because there have been few, if any, cases where an NPT non-nuclear-weapon state without an IAEA Additional Protocol and without (at least) a Modified Small Quantities Protocol (SQP) benefits from Part 810s without having first concluded with the U.S. a bilateral agreement for peaceful nuclear cooperation under Section 123 AEA, a so-called 123 Agreement.

The potential significance of DOE’s willingness to make awards in this case has been exacerbated, according to one source who has worked these issues in both the Congress and the Department of State, by President Trump’s significant elevation of U.S. bilateral relations with the KSA. This has meant that decision making by DOE and the National Nuclear Security Administration (NNSA) “for the last two years has been at the nexus of arms sales to and nuclear cooperation with the KSA,” he said. Beginning in 2018 this relationship has also been made more problematic by the murder of the regime critic Jamal Ahmad Khashoggi and by statements by KSA officials implying that Riyadh’s future participation in the NPT will depend on the nuclear behavior of Iran. The former U.S. Senate staffer cited above contrasted the willingness of DOE to award Part 810s for the KSA with the reluctance of two prior U.S. administrations to grant Part 810s for China, regardless of China already having a 123 Agreement with the U.S: The Sino-U.S. agreement became U.S. law in 1985, but in part because of nonproliferation concerns about Beijing, DOE issued no Part 810s for China until 2004. Other practitioners however underlined the fact that, while China through the 1980s had accumulated a track record of exporting highly sensitive items to proliferating destinations, to date the KSA has never been cited for non-compliance with its NPT safeguards obligations.

Legislative-Executive Dynamics: The patience of the Congress has been tried by limited information-sharing by the Executive Branch in several cases where concerns and questions about this administration’s actions and policies in national security matters have arisen. Congressional sources complain that on more than one occasion foreign relations committees have been denied information by the Executive Branch on the basis that information sought by lawmakers was deemed proprietary, for example, concerning arms sales notices. They also assert that Executive Branch notification of important developments–for example, on decisions concerning ongoing U.S. diplomacy with North Korea and on U.S. withdrawal from the INF Treaty–happened very late and only just before the President made significant announcements and took significant actions. In this aggressive environment, persons described by House Democrats as “whistleblowers” provided the Congress information about questionable activities in and around the Trump White House. Given low expectations by Congressional personnel that the KSA would on its own volunteer sensitive details of its diplomatic interactions with President Trump and his advisers about prospective future nuclear cooperation, and given–more generally–the polarized, even dysfunctional political atmosphere in Washington, the first above-cited source said that, if lawmakers are “not fluent in what they read or hear, they might easily conclude that dark matter lies behind” allegations of internal conflicts of interest and therefore “overreact,” when in fact there may be “little or nothing that is salacious.”

Instincts and habits may also be a factor in raising Congressional temperatures. Executive Branch agencies may interpret very narrowly the requirement cited by CRS that they inform Congressional “committees of jurisdiction” about ongoing developments. NNSA personnel, for example, may assume that “their” committees of jurisdiction are the Armed Services Committees of the House and Senate–not other legislative organs that are currently beset with the propriety of the Trump White House’s internal nuclear policy decision making. Lastly, whether members of Congress get their backs up over sharing of nuclear information can depend on who specifically is being asked to do the sharing. During the last two decades, a few upper-level Executive Branch officials acquired a reputation for stinginess in their response to the Congress, while a few others, one Congressional veteran said, “were pretty good at providing enough information in advance so as to avoid problems.”

I would conclude from all of this that in coming days or weeks the Executive Branch will likely inform the Congress in detail about what’s in those seven Part 810 authorizations for the KSA, if that hasn’t already happened. The initiative should be undertaken by DOE and Secretary Perry. If it is left instead to the Department of State or others who conferred with DOE on the margins of the award of these Part 810s, the road may be open for further misunderstandings, suspicion, or allegations that the administration may be hiding significant facts. That could happen, for example, should Congress’ briefers not know the answers to all the questions they are asked, because they and their agencies did not themselves interact with industry firms that received the Part 810s or did not themselves make the final determinations.

I also anticipate that what the Congress learns from the Executive Branch about the contents of those Part 810s for Saudi Arabia will be of zero interest to anyone looking for smoking guns pointing to sensitive technology transfers to the Middle East. In any case, the more time that goes by without any media “revelations” of ongoings in the Trump administration concerning U.S. nuclear diplomacy toward Riyadh, the more likely it will be that the Legislative and Executive Branches will sort this out among themselves and may return to something approximating business as usual–to the extent that this will even be possible as the campaigning season for the next Presidential election gets underway.