Congress

A Saudi nuclear deal is causing lawmakers from both parties to worry

The concern is whether Trump's administration is attempting to skirt legal oversight involving a potential nuclear agreement with Saudi Arabia

From left, ranking member Sen. Jack Reed, D-R.I., James Inhofe, R-Okla., and Energy Secretary Rick Perry talk before Senate Armed Committee confirmation hearing titled “The Department of Energy’s Atomic Energy Defense Programs,” in Dirksen Building on Thursday, March 28, 2019. (Tom Williams/CQ Roll Call)

Democrats and Republicans are growing more worried the Trump administration is attempting to skirt their legal oversight authorities when it comes to negotiating a potential nuclear cooperation agreement with Saudi Arabia.

Congress is entitled to review and potentially block proposed trade agreements that would enable a significant amount of nuclear collaboration with another country. But there is a lower level of nuclear exchanges happening outside of lawmakers’ and the public’s awareness, according to information made public in congressional hearings this week.

On Thursday, Energy Secretary Rick Perry confirmed to the Senate Armed Services Committee that his agency since 2017 has approved six so-called “Part 810” authorizations to export unspecified nuclear technology products to Saudi Arabia.

“What I’ve seen in this administration recently, and it’s just come out, is an effort to evade Congress and, to some extent, evade your department. And provide substantial nuclear technology and aid to Saudi Arabia, while Saudi Arabia refuses to abide by any of the controls we would like to see regarding reprocessing, enrichment,” said Rep. Brad Sherman Wednesday during a committee hearing with Secretary of State Mike Pompeo.

Sherman heads the House Foreign Affairs subcommittee that focuses on nuclear nonproliferation.

The California Democrat is the sponsor of a bipartisan bill with Florida Republican Rep. Ted Yoho that would require congressional approval for any potential formal nuclear trade deal with Saudi Arabia to go into effect, as outlined under Section 123 of the Atomic Energy Act. As the law stands, lawmakers must act proactively to block any proposed 123 agreement.

A committee markup of the House legislation has not been set although a hearing is expected. A matching bipartisan bill has been offered in the Senate by Sens. Edward J. Markey, a Massachusetts Democrat, and Marco Rubio, a Florida Republican.

On Wednesday, Sherman cited recent comments from Christopher Ford, assistant secretary of State for international security and nonproliferation, that the State Department thinks some nuclear cooperation can occur under a memorandum of understanding, which does not require congressional approval, rather than through a formal 123 agreement.

In order for U.S. companies to be allowed to export reactors, major reactor components, and reactor fuel, there needs to be a 123 agreement in place, which under the law Congress is entitled to review and potentially disapprove. But less significant types of nuclear technology can be sold abroad with only an Energy Department license.

While it is the Energy Department’s normal practice to publish Part 810 agreements, in the case of the six licenses to Saudi Arabia that Perry confirmed, the U.S. companies involved exercised their right to have the agreement kept private, arguing the public release of the authorizations “could cause them competitive harm or potentially provide insight into their proprietary information,” according to a December email from the Energy Department obtained by CQ.

U.S. and South Korean atomic energy companies are competing with China and Russia to win a potentially lucrative contract to build atomic energy reactors in Saudi Arabia. American and South Korean advocates of allowing the sale argue it is better that Riyadh buy its nuclear technology from the U.S. because American nuclear products are safer and more proliferation-resistant.

The Energy Department’s Part 810 permits usually involve unclassified nuclear technologies and services such as reactor designs and instructions for operating a nuclear facility, according to a January Congressional Research Service report.

Concerns of an end-run around Congress

The Atomic Energy Act permits the Energy secretary to approve Part 810 licenses without a 123 agreement in place if a determination is made it “will not be inimical to the interest of the United States.” The law requires Perry to get agreement from Pompeo in making such a determination. The Pentagon and Nuclear Regulatory Commission must also be consulted beforehand.

But a growing number of lawmakers are worried that nuclear cooperation with Saudi Arabia will backfire.

For one thing, the country’s de facto ruler, Crown Prince Mohammed bin Salman, has been public about his desire to obtain a nuclear weapon if Iran were to get one first. And Riyadh has consistently refused to agree to the type of nonproliferation safeguards that would reduce the chances of U.S. nuclear technology being used to produce a bomb.

The crown prince has few friends on Capitol Hill because lawmakers believe he was behind the October assassination in Turkey of U.S. resident Jamal Khashoggi, a dissident Saudi journalist. Lawmakers have also taken issue with Mohammed bin Salman’s recent regional foreign policy, which includes the kidnapping of the Lebanese prime minister, a travel and trade blockade of U.S. ally Qatar and a war in Yemen that has caused a humanitarian crisis.

Iran is currently abiding by the strictures of the 2015 multinational nuclear agreement that saw it surrender the vast majority of its atomic energy program. But if that pact collapses under sanctions pressure from the U.S., there is a good chance Tehran would resume previously-banned nuclear activities and within a few years develop a nuclear-armed missile.

According to a House Democratic staffer, an Obama-administration memorandum of understanding is already in place with Saudi Arabia that includes a non-binding agreement by Riyadh not to enrich uranium or reprocess plutonium — actions that can be used to produce warhead-grade material. It is thought that Ford is considering an MOU that would replace the older one.

“It is now clear why my repeated questions for the Trump administration have gone unanswered about how many authorizations it has issued to companies seeking to engage in nuclear cooperation with Saudi Arabia,” Markey said in a Thursday statement. “This administration has shown no qualms about going around Congress to assist authoritarians and promote private interests over public ones.”

Markey said he would shortly introduce legislation to mandate that any Part 810 authorizations be made available to Congress.

Sherman pressed Pompeo on Wednesday to provide Congress with a list of all the forms of nuclear trade the Trump administration believes it is allowed to engage in without a 123 agreement being in place.

Pompeo did not promise to do that, instead saying he would look at the request and comply with what the law requires.

“We treated Iran like an enemy” for engaging in activities that could be used to build a nuclear weapon, Sherman said. “If Saudi Arabia is hell-bent on developing a nuclear program that is uncontrolled and designed to make them a nuclear state or a possible nuclear state, will we treat them as an enemy?”

Pompeo did not say what U.S. policy would be toward Riyadh if it decides to pursue a nuclear weapon in violation of its commitments under the Nuclear Nonproliferation Treaty.

“We are working to ensure that the nuclear power that they get is something we understand and doesn’t present that risk,” he said. “That’s the mission statement.”

Senate Foreign Relations member Rand Paul in an interview with CQ said he was concerned about the administration trying to skirt congressional oversight of Saudi nuclear cooperation.

“I am very concerned about sharing any nuclear technology with Saudi Arabia,” the Kentucky Republican said. “Given the chance, I’ll vote against it.”

And Utah Republican Sen. Mitt Romney, who leads the Foreign Relations subcommittee with responsibility for Middle East issues, said he would be “happy” to examine the issue.

Earlier this month, Rubio and Senate Foreign Relations ranking member  Robert Menendez, New Jersey Democrat, wrote to the head of the Government Accountability Office, requesting an “urgent review of DOE’s interactions with Saudi Arabia regarding nuclear cooperation.”

The senators in the letter indicated they were concerned the State Department may have been left out of the loop on key issues while there may have been coordination between the Energy Department and U.S. nongovernmental organizations and commercial entities.

GAO confirmed to CQ it had begun work on the requested review but did not yet have a timeframe for when it would be completed.

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