II 111th CONGRESS 1st Session S. 1464 IN THE SENATE OF THE UNITED STATES July 16, 2009 Mr. Casey introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to establish the transfer of any nuclear weapon, device, material, or technology to terrorists as a crime against humanity.

1.

Short title

This Act may be cited as the Nuclear Trafficking Prevention Act.

2.

Findings

The Congress finds the following: (1)A single, simple nuclear weapon detonated in the heart of an American city would kill 100,000 people instantly, and seriously injure tens of thousands more. A significant portion of the city would probably become permanently uninhabitable, with little chance of a successful cleanup. (2)Making such a weapon would not be difficult, by modern technological standards, given 25 to 35 pounds of highly enriched uranium. (3)Since the development of the first nuclear weapons, countries around the world have recognized the unique risk that nuclear weapons pose to peace and security. (4)The first treaty limiting the use of nuclear technology was the Limited Test Ban Treaty of 1963, which banned the testing of nuclear weapons in the atmosphere, in outer space, and underwater. Since that time, many treaties to limit the use and proliferation of nuclear weapons have been signed. (5)Perhaps the most important of these treaties is the Treaty on the Non-Proliferation of Nuclear Weapons, which restricts almost all of the 188 nations that are signatories from developing nuclear weapons. As part of their obligation under the Treaty on the Non-Proliferation of Nuclear Weapons, 163 countries have reached safeguards agreements with the International Atomic Energy Agency that require a comprehensive system for accounting for nuclear materials and intrusive inspections of their nuclear facilities. (6)These treaties and safeguards agreements reflect the worldwide understanding that nuclear materials in the wrong hands pose a direct threat to peace and prosperity. (7)Chapter VII of the United Nations Charter, article 39 states the following: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.. (8)In 2004, the United Nations Security Council unanimously adopted Resolution 1540, binding on all members of the United Nations, which stated in part the following: The Security Council, … Acting under Chapter VII of the Charter of the United Nations, …2.Decides also that all States, in accordance with their national procedures, shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them; 3.Decides also that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to this end shall: … (d)Establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations; . (9)Resolution 1540 reflects the general understanding of the members of the United Nations that the illicit transfer of nuclear weapons and related materials is a threat to the peace. (10)The international community has demonstrated a growing appreciation of the scope and urgency of the threat posed by nuclear terrorism. At the G–8 Summit held in July 2009 in L’Aquila, Italy, the heads of state assembled agreed that The threat of terrorists acquiring WMDs continues to be cause for deep concern and We are determined to continue working together to ensure that terrorists never have access to those weapons and related materials.. (11)The President has announced his intention to host a Global Nuclear Security Summit in March 2010 in part to deter, detect, and disrupt attempts at nuclear terrorism, declaring that the international community should not wait for an act of nuclear terrorism before working together to collectively improve our nuclear security culture, share our best practices and raise our standards for nuclear security..

3.

Statement of policy regarding crimes against humanity

It is the policy of the United States that the transfer of a nuclear weapon or device or of nuclear material or technology with reason to believe that the weapon or device, or a weapon or device made using the transferred material or technology, may be used for terrorist purposes, is a crime against humanity and that individuals are liable for such acts under customary international criminal law.

4.

Criminal offense

(a)

Offense

Chapter 113B of title 18, United States Code, is amended by adding at the end the following new section:

2332i.

Transfer of nuclear weapons, devices, material, or technology

(a)

Unlawful conduct

(1)

In general

It shall be unlawful for any person to knowingly transfer to any organization or person described in paragraph (2)— (A)any weapon that is designed or intended to release radiation or radioactivity at a level dangerous to human life, or that uses a nuclear reaction in order to create an explosion; (B)any device or other object that is capable of endangering, and is designed or intended to endanger, human life through the release of radiation or radioactivity; (C)any nuclear material or nuclear byproduct material; or (D)any sensitive nuclear technology. (2)

Organizations and persons described

The organizations and persons referred to in paragraph (1) are— (A)any organization designated by the Secretary of State under section 219(a)(1) of the Immigration and Nationality Act as a foreign terrorist organization; and (B)any other person, if the transferor knew or had reasonable grounds to believe that the weapon, device, material, or technology transferred would be used in preparation for, or in carrying out, a Federal crime of terrorism or an act of international terrorism, whether or not such a crime or act occurs. (3)

Effect on international law

Nothing in this section shall be construed to apply with respect to activities undertaken by the military forces of a country in the exercise of their official duties. (b)

Jurisdiction

Conduct prohibited by subsection (a) is within the jurisdiction of the United States if— (1)the offense occurs in or affects interstate or foreign commerce; (2)the offense occurs outside of the United States and is committed by a national of the United States; (3)the offense occurs outside of the United States and the recipient of the weapon, device, material, or technology that is the subject of the offense has at any time conspired, attempted, or threatened to commit a Federal crime of terrorism or an act of international terrorism against the United States Government, any property of the United States, a United States national, or an instrumentality of the interstate or foreign commerce of the United States; (4)a financial institution or other person doing business in the United States, or any other financial institution or other person that is under the control of an entity organized under the laws of the United States, provides funds or any form of financing in furtherance of the offense; or (5)an offender aids or abets any person over whom jurisdiction exists under this subsection in committing an offense under this section or conspires with any person over whom jurisdiction exists under this subsection to commit an offense under this section. (c)

Criminal penalties

(1)

In general

Any person who violates, or attempts or conspires to violate, subsection (a) shall be fined not more than $2,000,000 and imprisoned for a term of not less than 25 years or for life. (2)

Special circumstances

If the death of another results from the use of the weapon, device, material, or technology that is the subject of the person’s violation of subsection (a), the person shall be fined not more than $2,000,000 and punished by imprisonment for life. (d)

Definitions

For purposes of this section— (1)an institution or person is under the control of another entity if that other entity owns a majority of the equity interest in that institution or person; (2)the term Federal crime of terrorism has the meaning given that term in section 2332b(g)(5); (3)the term international terrorism has the meaning given that term in section 2331(1); (4)the terms nuclear material and nuclear byproduct material have the meanings given those terms in section 831(f) of this title; and (5)(A)the term sensitive nuclear technology means any information (including information incorporated in a production facility or utilization facility or important component part thereof) which is not available to the public and which is important to the design, construction, fabrication, operation or maintenance of a uranium enrichment or nuclear fuel reprocessing facility or a facility for the production of heavy water, or detonators, charges, or other components necessary to ignite or facilitate the detonation of a weapon, device, or object described in subparagraph (A) or (B) of subsection (a)(1); (B)the terms production facility and utilization facility have the meanings given those terms in section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014).

. (b)

Conforming amendment

The table of sections for chapter 113B of title 18, United States Code, is amended by adding at the end the following new item: 2332i. Transfer of nuclear weapons, devices, material, or technology. .

5.

International organizations and bilateral and multilateral fora

(a)

United Nations

The Secretary of State shall direct the Permanent Representative of the United States to the United Nations to seek the adoption in the General Assembly of a resolution recognizing that the transfer of a nuclear weapon or device, material, or technology, with reason to believe that the weapon or device, or a weapon or device made using the transferred material or technology, may be used for terrorist purposes, is a crime against humanity. (b)

Bilateral and multilateral fora

The Secretary of State shall direct the representatives of the United States to bilateral and multilateral fora to urge their foreign counterparts to seek the enactment in their home countries of national laws recognizing that the transfer of a nuclear weapon or device, material, or technology, with reason to believe that the weapon or device, or a weapon or device made using the transferred material or technology, may be used for terrorist purposes, is a crime against humanity.