02-26-10 Ltr to Pelosi Transmitting DOJ Legislative Proposal - Nuclear Terrorism Conventions...

8/2/2019 02-26-10 Ltr to Pelosi Transmitting DOJ Legislative Proposal - Nuclear Terrorism Conventions Implementation Act of

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U.S. Department of JusticeO f i c e of Legislative Affairs

Office or ihe Assistant Attorney General Wushington.D.C. 20530

February 26 ,2010

The Honorable Nancy PelosiSpeaker of the HouseUnited S tates House of RepresentativesWashington, D.C. 20 515Dear Madam Speaker:

We are transmitting herewith a legislative proposal to implement important internationalagreements concerning nuclear terrorism and nuclear materials. These agreements and theimplementing legislation we are transmitting are essential for protecting our national security andworking with our allies toward stopping terrorism and proliferation. We have enclosedlegislative language and a detailed sectional analysis. Nearly identical legislation was submittedon July 28,2008.Principally, the legislative proposal would accomplish two aims: First, it would

implement the International Convention for the Suppression of Acts ofNuclear Terrorism("NTC"), which was adopted by the United Nations General Assembly on April 13,2005,andsigned by President Bush on behalf of the United States on September 14,2005. TheNTCrequires States Parties to criminalize certain acts relating to the possession and use of radioactivematerial and radiological dispersal devices, an d damage to nuclear facilities.Second, the proposal would implement certain provisions of an amendment to theConvention on the Physical Protection o f Nuclear Material ("CPPNM"). The amendment to theCPPNM was adopted by acclamation at a diplomatic conference of States Parties (including theUnited States) on July 25,2005. The CPPNM amendment, in pertinent part, requires StatesParties to criminalize nuclear smuggling and sabotage of nuclear facilities. The Senate agreed to

a resolution of advice and consent to both the NTC and the amendment to the CPPNM onSeptember 25, 2008.


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The Ho~~orableancy PelosjPage 2

Thank you for the opportunity to present this proposal. The Office of Management andBudget has advised us that submission of this letter is in accord with the program of th ePresident.Sincerely,

Ronald WeichAssistant Attorney General

AttachmentsIDENTICAL LETTER SENT TO TH E HONORABLE JOSEPH R. BIDEN, JR., RESIDENT,UNITED STATES SENATE


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BILL TEXTA bill to implement the International Convention for the Suppression of Acts of NuclearTerrorism and th e Amendment to th e Conver~tion n the Physical Protection of NuclearMaterial, and for other purposes.

Be it enacted by the Senate ~ l n d ouse of Representatives of the United Stales ofAmerica in Congress assembled,SEC. 1. SHORT TITLE

This Act may be cited as th e "Nuclear Terrorism Conventions ImplementationAct of2010."SEC. 2. NEW SECTION 23323.OF TITLE IS OF THE U.S. CODE

(a ) Chapter 1 13B of title 18, United States Code, is amended by adding aAerSection 2332h the followin g new section:" 5 2332i. Acts of nuclear terrorism

"(a) Offenses.-" ( I ) In general. - Whoever knowingly and unlawfillly-

"(A) possesses radioactive material or makes or possesses adevice:"(i) with the intent to cause death or serious bodily injury;or"(ii) with the intent to cause substantial damage to propertyor the envjronnlent; or

"(B) uses in any way radioactive material or a device, or uses ordamages or interferes with the operation of a nuclear facility in amannerthat causes the release of or increases the risk of th e release of radioactivematerial, or causes radioactive contamination o r exposure to radiation:

"(i ) with the intent to cause death or serious bodily injury orwith the knowledge that such act is likely to cause death orserious bodily injury;"(ii) with the intent to cause substantial damage to propertyor th e environment or with the knowledse that such act is likelyto cause substantial damage to property or the environment; or


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"(iii) with the intent to compel a person, an inlei-nationalorganization or a country to do or refrain from doing an act,shall be punished as prescribed in subsection (c).

"(A) Whoever threatens to commit an offense under paragraph ( I )shall be punished as prescribed in subsection (c).

"(B) Whoever demands possessiolr of or access to radioactivematerial, a device or a nuclear facility by threat or by use of force shall bepunished as prescribed in subsection (c)."(3) Attempts and conspiracies.- Whoever attempts to commit an offenseunder paragraph ( I ) or conspires to comrnit a11 offense under paragraphs (1) or (2)

shall be punished as prescribed in subsection (c)."(b) Jurisdiction.- Conduct prohibited by subsection (a) is within the jurisdictionof th e United States if-

" ( 1 ) the prohibited conduct takes place in the United States or the specialaircraft jurisdiction of the United States;" (2 ) the prohibited conduct takes place outside of the United States and

"(A) is committetl by a national of the United States, a UnitedStates corporation or legal entity or a stateless person whose habitualresidence is in the United States:

"(B) is comm itted on board a vessel of the United States or avessel subject to the jurisdiction of the United States (as defined in section70502 of title 46) or on board an aircraft that is registered under UnitedStates law, at the time the offet~ses committed; or

"(C) is committed in an attempt to compel the United States to door abstain from doing an y act, or constitutes a threat directed at the UnitedStates:"(3) the prohibited conduct takes place outside of th e United States and avictim or an intended victim is a national of the United States or a UnitedStates corporation or legal entity, or the offense is committed against anystate or government facility of the United States; or


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"(4) a perpetrator of the prohibited con duct is found in the United States."(c) Penalties.- Whoever violates this section shall be punished as providedunder section 2332a(a) of this title."(d) Nonapp1icability.- This section does not apply t o -

"(I) the activities of armed forces during an armed conflict, as those termsare understood under the la w of war, which ar e governed by that law; or" (2 ) activities undertaken by nilitary forces of a state in the exercise oftheir official duties.

"(e) Definitions.- As used in this section, th e terrn-"(1) 'armed conflict' has the meaning given that term in section

2332f(e)(11) of this title;" (2 ) 'device' means:

"(A)any nuclear explosive device; or"(B) any radioactive material dispersal or radiation-emitting device

that may, owing to its radiological properties, cause death, serious bodilyinjury or substantial damage to property or the environment;"(3) nternational organization' has the m eaning given that term in section

83 1 Q(3) of this title;"(4) 'military forces of a state' m ea l s the armed forces of a country thatare organized, trained and equipped under its internal law for the primary purposeof national defense or security and persons acting in support of those armed forceswho are under their formal command, control and responsibility;" ( 5 ) 'national of the United States' has the meaning given that term in section

101(a)(22) of the Imm igration and Nationality Act (8 U.S.C. 1101 a)(22));"(6) 'nuclear facility' means:

"(A) any nuclear reactor, including reactors on vessels, vehicles,aircraft or space objects for use as an energy source in order to propel suchvessels, vehicles, aircraft or space objects or for any other purpose;


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"(B) any plant or conveyance being used for the production,storage, processing or transport of radioactive material; or"(C) a facility (including associated buildings and equipment) inwhich nuclear material is produced, processed, used, handled, stored ordisposed of, if damage to or interference with such facility could lead tothe release of significant amounts of radiation or radioactive material;

"(7) 'nuclear m aterial' Ilas the meaning given that term in section831 f)( 1) of this title;"(8) 'radioactive material ' means nuclear material and other radioactivesubstances that contain nuclides that undergo spontaneous disintegration (aprocess accompanied by emission of one or more types of ionizing radiation, suchas alpha-, beta-, neutron particles and gamma rays) and that may, owing to theirradiological or fissile properties, cause death, serious bodily injury or substantial

damage to property or to the enviromnent;"(9) serious bodily injury' has the meaning given that term in section

83 1(f)(4) of this title;"(10) 'state or government facility' has the meaning given that term insection 7332f(e)(3)of this title;"(I 1) 'United States corporation or legal entity' means any corporation orother entity organized under the laws of the United States or any State,Co nm onw ealth , territory, possession or district of the United States;"(12) 'vessel' has the meaning given that term in section 1502(19) of title33";"(13) 'vessel ofthe United States' has the meaning given that term in section70502 of Title 46."

(b) CLERICA LMENDMENT.- he table of sections at the beginning of chapter113B of title 18,United States Code, is amended by inserting afier section 2332h thefollowing:"2332i.Acts of nuclear terrorism.".(c ) DISCLAIMER.-othing contained in this section is intended to affect theapplicability of any other Federal or State law that might pertain to the underlyingconduct.


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SEC. 3 AMENDMENT TO SE CTION 831 OF TITLE 18 OF THE U.S. CODESection 831 uf title I 8 of th e United StatesCode is amended by-(a) in subsection (a)-

(1) redesignating paragraphs (3) through (8) as (4) through (9);(2) after paragraph (21, inserting:

"(3) without lawful authority, intentionally carries, sends or movesnuclear material into or out of a country;";(3) in redesignated paragraph (8), striking "an offense under paragraph(I) , (2), (31, or (4)" and inserting "any act prohibited under paragraphs (1)through ( 5 ) " ;(4) in redesignated paragrap11 (9). striking "an offense under paragraph( I ) , (21, (3), or (4)" and inserting "any act prohibited under paragraphs ( I )through (7)" ;

(b ) in subsection (b)-(1) in paragraph (1), striking "(7)" and inserting "(8)";(2) in paragraph (2), striking "(8)" and inserting "(9)";

(c ) in subsection (c)-(1) in subparagraph (2)(A), adding after "United States", "or a statelessperson whose habitual residence is in the United States";(2 ) striking paragraph (5);(3) in paragraph (4), striking the final "or";(4) inserting after paragraph (4):

" ( 5 ) the offense is committed outside th e United States and againstany state or government facility of th e United States;"(6) the offense is committed on board a vessel of th e UnitedStates or a vessel subject to the jurisdiction of the United States (as


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defined in section 70502 of title 46) or on board an aircraft that isregistered under United States law, at the time the offense is committed; or" ( 7 ) he offense is committed in an attempt to compel the United

States to do or abstain from doing any act, or constitutes a threat directedat the United States.".(d) redesignating subsections (d ) through (f ) as ( e ) hrough (g), respectively;( e ) nserting after subsection (c):

"(d) Nonapplicabi1ity.- This section does not apply to-"(1) the activities of armed forces during an armed conflict, asthose terms are understood under the law of war, which are governed bythat law; or"(2) activities undertaken by military forces of a state in theexercise of their official duties.

(9 n redesignated subsection (g)-( I ) in paragraph ( 6 ) ,striking the final "and";(2) in paragraph ( 7 ) , striking the final period and inserting a setnicolon;(3) inserting after paragraph 7:

"(8) the term 'armed conflict' has the meaning given that term insection 2332f(e)(11) of this title;"(9) the term 'military forces of a state' means the armed forces ofa country that are organized, trainecl and equipped under its internal lawfor the primary purpose of national defense or security an d persons actingin support of those anned forceswho are under their formal command,control and responsibility;"( 10)the term 'state or government facility' has the meaning giventhat term in 2332f (3) (3) of this title; and"(1 I ) the term 'vessel of the United States' has the meaning given

that tettn in section 70502 of Title 46.".


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SEC. 4 ANCILLARY MEASURES(a) WIRETAPREDICATES. Section 25 16(I)(q) of title 18,United States Code, isamended by striking "2332h" and inserting "2333-h,2332i,".(bl FEDERAL R ~ M EF TERRORISM.Section 2332b(g)(5)(B) of title 18 , United

States Code. is amended by inserting "33321 (relating to acts of nuclear terrorism),"before "2339 (relating to harboring terrorists)".(c ) PROVIDTNG MATERIAL UPPORTO TERRORISTSREDICATE.Section 2339A

uf title 18, United States Code, is amended by inserting ",2332i" before "or2340A".


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SECTION-BY-SECTION ANALY SlSThis bill is necessary to implem ent certain provisions of (a) the Inte~mationalConvention for the Suppression of Acts of Nuclear T errorism ("Nuclear TerrorismConvention" or "NTC"), signed by President Bush on behalf of th e United States ofAmerica on September 14,2005; an d (b) certain provisions of an amendment to theConvention on the Physical Protection of Nuclear Material ("CPPNM"), adopted byacclamation at a diplomatic conference of States Parties to th e CPPNM on July 25, 2005.The NTC requires States Parties to criminalize certain acts relating to the possession anduse of radioactive material and radiological dispersal devices and damage to nuclearfacilities. The CPPNM amendment, in pertinent part, requires States Patties tocrirninalize nuclear smuggling an d sabotage of nucl ear facilities.Section 1. Short TitleThis section provides that this Act may be cited as the "Nuclear Ter~orismConventions Implementation Act of 2010."Section 2. New Section 23321 of Title 18 of the U.S. CodeThis section of the bill would create a new section in the U. S. Code in Chapter

1 13B , Terroiism, of Title 18, to implement certain provisions of the NTC and heamendment to the CPPNM . Solme of the conduct prohibited by the treaties is alreadycovered by exjstiilg provisions in the U.S. Code. For instance, the NTC's prohibitionagainst the possession or use of a nuclear explosive or radiation dispersal device with theintent to cause death or serious bodily injury may be covered by 18 U.S.C. 5 832(c)(prohibiting the unlawhl possession or use of a "radiological weapon") a n d o r 18 U.S.C.6 2332h (prollibitjng the unlawful possession or use of a "weapon" or "device" designedto release radiation). Similarly, the prohibitions contained in both the NTC and theamendment to the CPPNM against causing damage to a nuclear facility overlap with 42U.S.C. 9: 2284, which pro hibits sabotage of nuclear facilities. The CPPNM amendmentwas also largely anticipated in the existing 18 U.S.C. 3 831, which implemented theoriginal CPPNM as well as additional prohibitions regarding nuclear material. However,th e existing statutory coverage is not entirely coextensive with the offenses se t forth inthe new treaties. For example, the possession of radioactive material other than nuclearmaterial, or threatening to cause damage to a nuclear facility, with the intent to causedeath or serious bodily injury, damage to property or the environment, or to compel aperson, international organization, or country to do or refrain from doing such an act,may not be prohibited by existing law.

Section 2332i(a) would therefore implement th e provisions in ArticIes 2 an d 5(a)of th e NTC by creating two new criminal offenses regarding the possession and use of


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radioactive material, along with criminalizing, as required by the two treaties, attempts,threats, and conspiracies to commit the offenses. The provisions on damaging orinterfering with a nuclear facility would also implement the CPPNM amendment'sprovision on nuclear facility sabotage. While nuclear facility sabotage is also addressedat 42 U.S.C. 4 2284, that statute does not include a jurisdictional provision for offenders"found in" the United States and thus would not filly implement th e obligations of theCPPNM amendment.

Specifically, section 2332i(a)(l)(A) would make it a criminal offense toknowingly possess radioactive material or make or possess a nuclear explosive, radiationexposure device or radiological d ispersal device, with the intent to cause death or seriousbodily injury or substantial damage to property or the environment. Section2332 i(a)(l)(B) would make it a criminal offense to knowingly use radioactive material ora nuclear explosive or radiological dispersal device or radiation exposure device, ordamage or interfere with a nuclear facility in a tnatmer that risks or causes contaminationor exposure to radioactive material or radiation, with the intent to cause death or seriousbodily injury or substantial damage to property o r the envirotm ent, or with theknowledge that such effect is likely. W ith respect to this offense, the acts may alsoconstitute offenses if they are done with the intent to compel a person. internationalorganization, or state to do or refrain from doing an act. These offenses implement theNTC A rticle 2(1) an d the acts of sabotage described in the amendment to Article 7 of th eCPPNM. The CPPNM amendment also includes a specific exception for such sabotageacts "undertaken in conformity with the national law of the State Party in th e territory ofwhich the nuclear facility is situated." Such an exception would protect, for example,first responders bu t is no t necessary in domestic law because the statute only ctiminalizesunlawful activity. Moreover, the government would not prosecute first responders foracts within their official dutie s in respo nding to an incident.

Section 2332i(a)(2) would crimjnalize a threat to comm it eithe r offense insubsection (a)( l) and a demand fo r possession of or access to radioactive material, anuclear explosive, or a radiological dispersaI device or a radiation exposure device or anuclear facility by means of a threat or use of force. This language implem ents Article2(2) of the NTC, with slightly differen t but equivalent language for purposes of U.S. law.It also implements the threat provision of th e CPPNM amendment as applied to nuclearfacility sabotage. Threats to cor nl it the other acts identified in th e CPPNM amendmentare cr imi~~a l i zedt 18 U.S.C. $ 83 1.

Section 2332i(a#3) would criminalize attempts to commit the offenses insubsection (a)(]) and conspiracies to com mit the offenses in subsections ( a ) ( l ) an d (a)(2).This language implements Article 2(3) an d 2(4) of th e NTC, as well as th e amendm ent toArticle 7 of the CPPNM as it pertains to sabo tage attempts and parljcjpation. Conspiracyunder subsection (a)(3) would no t require proof of an overt act. Attempts to threaten arenot included in the NTC and therefore not inc luded in the legislation. The NTC andCPPNM amendmerit do iticlude the offense o f "participation" in an attempt, but the


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legislation does not criminalize conspiracy to attempt since the crime does not have ananalogue in U.S. law. Statutory provisions for conspiracy and attempt. as well as aidingand abetting liability through 18 U.S.C. 5 2, are sufficient to im plement the conventions'provisions on attempt an d participation.Section 2332i(b) would create jurisdiction for the offenses in subs ectioi~ a) .Article 9 of the NTC and Article 8 of the CPPNM require jurisdiction over offeilsesoccurring on the territory of a signatory, on board vessels flying the flag of a signatory,and on aircraft registered in a signatory, and over offenses committed by nationals of asignatory. Subsections (b)(l) , (b)(2)(A), and (b)(2)(B) implement these jurisdjctjonalgrounds in the new legislation and include the special aircraft jurisdiction of th e UnitedStates. The statute uses the term "vessel of the United States" and "vessel subject to thejurisdiction of the United States" (both terms defined in 46 U.S.C. 6 70502) to definejurisdiction over vessels. The treaties also require that a State Party establish jurisdictionover the offenses in cases where the alleged offender is present in its territory and it doesnot extradite that person to a State Party that has implemented procedures in compliance

with the treaties. Accordingly, the statute includes in subsection (b)(4) jurisdictio t~ if anoffender is found in the United States. The NTC also perm its jurisdiction in a number ofother cases, which this legislation adopts. There is jurisdiction over offenses committedagainst a U.S. national abroad; by a stateless person whose habitual residence is in theUnited S tates; against state or govei-nn~ent acilities abroad; or in an attempt to compelthe United States to do or abstain from doing any act.

In most respects. the adoption of these bases of jurisdiction parallels those in 18U.S.C. 83 1 , which implements the United States' obligations under the CPPNM. Therear e nevertheless a few differences. First, 18 U.S.C. # 831 includes jurisdiction based onimport or export activities, in accordance with the CPPNM. This jurisdictional basis,however, is not included in the NTC and therefore not included in section 2332i.

Section 2332i(c) would impose penalties for the comm ission of the offenses insubsection (a), in accordance with the obligation u nder A rticle 5(b) of the NTC andArticle 7 of the CPPNM. By reference to section 2332a(a), under this subsectionviolators of section 23321 are to be imprisoned for any term of years or for life, and ifdeath results, shall be punished by death or imprisoned for any term of years or for life.Article 4(2) of the NTC and the amendment to Article 2 of the CPPNM specifythat activities of armed forces are not covered by the conventions. The statutoryexemption in section 2332i(d) implements this exception. The statute draws on thedefinition of "military forces of a state"used in the Nuclear TerrorismConvention,Paragraph 6 of A rticle I. Consistent with the understandings included in the instrumentsof ratification for both th e NTC and CPNNM (Treaty Doc. 1 10-4 at IX and Treaty Doc.110-6 at 7) and with the Administration's interpretation of 18 U.S.C. 2332f. th eexemption in section 2332i(d) is understood to include civiliai~s ho direct or organizethe official activities of military forces of a State.


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Section 2332i(e) defines relevant terms in the section, most importantly,"radioactive material," "nuclear material," "nuclear facility," and "device." Thedefinitions of "1-adioactivematerial" an d "device" are adopted directly from the NTC.The definition of "nuclear material" is adopted from existing section 83l(f) n order toprovide consistency among the statutes. It is slightly broader than the definition in theCPPNM or the NTC because it covers all plutonium, rather than "plutonium, except thatwith isotopic concentration exceeding 80 percent in plutonium-238." When amendingsection 53 in 1996, Congress expanded the definition in that statute beyond the CPPNMdefinition in order to address other hazardous materials that might be used in radioactivedispersal devices or in other terrorist activity.

The definition of "nuclear facility" is adopted partly from the NTC, in subsections(e)(6)(A) and (e)(6)(B), and partly, in subsection ( e ) ( 6 ) (C ) ,rom the definition of thesame term in the CPPNM amendment because the statute covers offenses from bothconventions involving nuclear facilities. A nuclear facility would include a nuclearreactor or plant used for nuclear material, as well as a conveyance fo r radioactivematerial. It would also include facilities that use nuclear material, provided that damageto or interference with the facility could lead to a significant release of radiation orradioactive material.

Section 3. Amendment t o Section 831 of Title 18 of the U.S. CodeSection 83 1would be amended to implement certain provisions of the CPPNMamendment. New subsection (a)(3 1 would criminalize the additional acts o f nuclearsmuggling required to be prohibited under the CPPNM amendment As with the otheroffenses in section 831, since 1996, slightly more material would be covered in the

statute than in the treaty: section 83 1 includes "nuclear byproduct material" where theCPPNM does not, and section 83 1, as explained above, has a somewhat broaderdefinition of nuclear material than the CPPNM. Congress's findings in 1996 supportedthis expansion.Renumbered subsection (a)(8) retains the previous attempt offenses an d adds anattempt offense with respect to the ne w smuggling offense (new subsection (a)(3)),consistent with the CPPNM amendment. Renumbered subsection (a)(9) would includeconspiracies to com mit the substantive offenses criminalized in th e stahite, as required byth e CPPNM and its amendment.The jurisdictional provisions in subsection (c ) would be expanded to includesome of the grounds listed in the new section 2332i to promote consistency in theimplementation of these two conventions and the full assertion of permissible authorityover potential nuclear material offenses. The amendment would add, consistent withsection 23321, jurisdiction over offenses committed by stateless persons with theirhabitual residence in the United S tates. It would also extend jurisdiction over offenses


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against state or government facilities abroad and offenses committed on board an aircraftor vessel regjstered in the United States. Simpler language borrowed from the newsection 2332i would replace current subsection (c)(5) to achieve the same effect ofjurisdiction over terrorist acts done to influence the United States goven~ment r thatconstitute a threat directed at the United States.Similarly to section 2332i(d), a new subsection (d) in section 831 would provideexemptions to jurisdiction for activities of armed forces. implementing the amendment toArticle 2 of the CPPNM. The statute also draws on the definition of "military forces of a

state"used in th e Nuclear Terrorism Convention, Paragraph 6 of Article I. Consistentwith the understandings included in the instruments of ratification for both the NTC andCPNNM (Treaty Doc, 110-4 at IX an d Treaty Doc. 110-6 at 7) and with theinterpretation of 18U.S.C. 2332f, th e exemption in section 2332i(d) is understood toinclude civilians who direct or organize the official activities of military forces of a State.The amendments also include technical changes to update the cross-references

after the redesignations.Section 4. A~icillaryMeasuresThis section would ad d new section 2332i as a predicate for wjretappji~g nder 18U.S.C. 6 25 16(l)(q), and to the definition of "federal crime of terrorism" in 18 U.S.C. $2332b(g)(5)(B). In accordance with article 7 ( l )(a) of the NTC, which requires StatesParties to prevent th e provision of financing and technical assistance related to theoffenses in the NTC, the section would also include new section 2332i in the prohibitionson providing material support to terrorists in 18 U.S.C. 2339A.

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02-26-10 Ltr to Pelosi Transmitting DOJ Legislative Proposal - Nuclear Terrorism Conventions...

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