[House Hearing, 106 Congress]
[From the U.S. Government Printing Office]
IMPLEMENTATION OF THE IRAN NONPROLIFERATION ACT OF 2000: IS LOSS OF
LIFE IMMINENT ON THE INTERNATIONAL SPACE STATION?
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
OCTOBER 12, 2000
Serial No. 106-194
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COMMITTEE ON INTERNATIONAL RELATIONS
BENJAMIN A. GILMAN, New York, Chairman
WILLIAM F. GOODLING, Pennsylvania SAM GEJDENSON, Connecticut
JAMES A. LEACH, Iowa TOM LANTOS, California
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
DOUG BEREUTER, Nebraska GARY L. ACKERMAN, New York
CHRISTOPHER H. SMITH, New Jersey ENI F.H. FALEOMAVAEGA, American
DAN BURTON, Indiana Samoa
ELTON GALLEGLY, California DONALD M. PAYNE, New Jersey
ILEANA ROS-LEHTINEN, Florida ROBERT MENENDEZ, New Jersey
CASS BALLENGER, North Carolina SHERROD BROWN, Ohio
DANA ROHRABACHER, California CYNTHIA A. McKINNEY, Georgia
DONALD A. MANZULLO, Illinois ALCEE L. HASTINGS, Florida
EDWARD R. ROYCE, California PAT DANNER, Missouri
PETER T. KING, New York EARL F. HILLIARD, Alabama
STEVE CHABOT, Ohio BRAD SHERMAN, California
MARSHALL ``MARK'' SANFORD, South ROBERT WEXLER, Florida
Carolina STEVEN R. ROTHMAN, New Jersey
MATT SALMON, Arizona JIM DAVIS, Florida
AMO HOUGHTON, New York EARL POMEROY, North Dakota
TOM CAMPBELL, California WILLIAM D. DELAHUNT, Massachusetts
JOHN M. McHUGH, New York GREGORY W. MEEKS, New York
KEVIN BRADY, Texas BARBARA LEE, California
RICHARD BURR, North Carolina JOSEPH CROWLEY, New York
PAUL E. GILLMOR, Ohio JOSEPH M. HOEFFEL, Pennsylvania
GEORGE RADANOVICH, California [VACANCY]
JOHN COOKSEY, Louisiana
THOMAS G. TANCREDO, Colorado
Richard J. Garon, Chief of Staff
Kathleen Bertelsen Moazed, Democratic Chief of Staff
Stephen G. Rademaker, Chief Counsel
Liberty Dunn, Staff Associate
C O N T E N T S
Edward A. Frankle, Associate Administrator, Office of the General
Counsel, NASA.................................................. 5
W. Michael Hawes, Deputy Associate Administrator for Space Flight
Development, Office of Space Flight, NASA...................... 9
The Honorable Benjamin A. Gilman, a Representative in Congress
from the State of New York, and Chairman, Committee on
International Relations........................................ 19
Edward A. Frankle................................................ 22
Michael Hawes.................................................... 26
Additional material submitted for the record:
Response by NASA to additional questions submitted for the Record
by the Honorable George R. Nethercutt, a Representative in
Congress from the State of Washington.......................... 34
Response by NASA to additional questions submitted for the Record
by the Honorable Dana Rohrabacher, a Representative in Congress
from the State of California................................... 40
IMPLEMENTATION OF THE IRAN NONPROLIFERATION ACT OF 2000: IS LOSS OF
LIFE IMMINENT ON THE INTERNATIONAL SPACE STATION?
THURSDAY, OCTOBER 12, 2000
House of Representatives,
Committee on International Relations,
The Committee met, pursuant to call, at 10:18 a.m. in Room
2172, Rayburn House Office Building, Hon. Benjamin A. Gilman
(Chairman of the Committee) presiding.
Chairman Gilman. The Committee will come to order. We
received preliminary reports this morning that at least four
American sailors were killed and 12 are missing in a terrorist
attack on the USS COLE in the Gulf of Aden. We think of
ourselves as a nation at peace, but there will always be those
who, for misguided reasons of their own, seek to inflict harm.
Our hearts go out to the families of those servicemen who
made the ultimate sacrifice in the service of our Nation. So
let us take a moment of silence as we begin our hearing today.
Thank you. Our hearing will come to order. I called this
hearing in order for Members of Congress to hear firsthand
about a remarkable legal interpretation of the Iran
Nonproliferation Act that apparently has been adopted by the
National Aeronautics and Space Administration. This
interpretation threatens to eviscerate this important new law
that was enacted with great fanfare just 7 months ago.
As everyone knows, the problem of proliferation from Russia
to Iran of dangerous weapons technology, especially missile
technology, has been with us for many years now. The Clinton
Administration tried repeatedly in the past to do something
about it, but the results were invariably disappointing. In
exasperation, a number of us in the Congress felt compelled to
act. Here in the House, I joined with our distinguished Ranking
Democratic Member, Mr. Gejdenson, and the distinguished
Chairman of our Committee on Science, Mr. Sensenbrenner, to
introduce the Iran Nonproliferation Act. The lead Senate
sponsors of this measure included not only the distinguished
majority leader, Mr. Lott, but also the man that Vice President
Gore has chosen as his running mate, the junior Senator from
Connecticut, Mr. Lieberman.
The Clinton Administration did not like our legislation. In
fact, they threatened in writing to veto it, but we were not
deterred. The Gilman-Gejdenson-Lott-Lieberman bill passed the
House unanimously, and then it passed the Senate unanimously,
and eventually President Clinton signed it into law on March
14th of this year.
Since that time a remarkable thing has occurred. The
Administration has gone about its business as if the law didn't
exist. In essence, the law only requires two things: First, it
requires the President to report periodically to Congress about
proliferation to Iran from other countries. Second, it
prohibits NASA from buying new goods and services from Russia
for the International Space Station until the President
determines that all of the approximately 400 entities under the
Russian Aviation and Space Agency have gotten out of the
business of proliferating to Iran.
The law's reporting requirement has been utterly
disregarded by the Administration. The first report was
required by law to be submitted to Congress no later than 3
months after the date of its enactment, or by June 12th of this
year. The second report was required by law to be submitted to
Congress no later than 6 months after the date of enactment, or
by September 14th. Neither of these reports have been
The State Department has a number of excuses for
disregarding these report deadlines. They have been busy doing
other things. They have had a hard time figuring out how to
write the report. Also, it is a lot of work. Most recently,
they sent us a letter saying they are going to try hard to
finish the first report by December 1st, or 6 months after the
due date. But they are not making any promises.
Obviously the Administration has not treated compliance
with the reporting requirements of the Iran Nonproliferation
Act as a priority. In fact, after the bill was enacted they
waited for two full months to get around to asking the CIA to
collect the information they would need to write the first
report. That information apparently was not given to the people
who will actually write the report until just last month. And
when we asked, we were told that not a single person within the
executive branch had been put to work full time on complying
with this law.
And we have now learned that NASA is considering
implementing the law in a way that will make the State
Department's record look like a model of compliance. The law is
very clear that NASA cannot make what are called,
``extraordinary payments in connection with the International
Space Station,'' to Russia until the President gives all
entities within the Russia Aviation and Space Agency until they
have a clean bill of health on proliferation to Iran. The
President cannot even consider doing that now because the State
Department has not written any of the required reports about
what these entities are doing. There is, however, an exception
in the law for crew safety. If the President notifies Congress
in writing that an otherwise prohibited purchase from Russia
is, ``necessary to prevent the imminent loss of life by or
grievous injury to individuals aboard the International Space
Station,'' that purchase may be made notwithstanding the law's
This exception was inserted into legislation by a Member of
our own Committee, the gentleman from California, Mr.
Rohrabacher, during the Science Committee's markup of the bill.
Hopefully in a few minutes Mr. Rohrabacher will be able to
describe to us his intentions in writing this exception. My own
understanding was always that this was an exception that was to
be available to NASA in emergency situations only. NASA,
however, has come up with its own interpretation of what Mr.
Rohrabacher intended, which is considerably broader than an
exception just for emergency circumstances.
NASA apparently believes that the purchase of anything that
arguably enhances safety will fit within this exception. If
NASA's interpretation is allowed to stand, I fear that
virtually nothing will be left of the law's prohibition on
extraordinary payments in connection with the International
Space Station. I had hoped that we in the Congress had
concluded our work in this area when we enacted the Iran
Nonproliferation Act earlier this year, but regrettably NASA's
present course may leave us with no choice but to legislate
again on this issue. And if we are forced to do that, we may
also have to address some new areas of concern that are now
under investigation by the NASA Inspector General, such as
NASA's subsidization of other entities in Russia that have a
history of producing and proliferating weapons of mass
I am now pleased to recognize our Ranking Minority Member,
Mr. Gejdenson, for any comments he may have. Mr. Gejdenson.
Mr. Gejdenson. Thank you, Mr. Chairman. We are always in a
little bit of a quandary in dealing with the Russians.
Obviously we are concerned about their proliferation. On the
other hand, if we exclude their participation in every
commercial venture with the United States, they are only left
with commercial ventures with rogue nations. So it is a very
difficult balance obviously.
Clearly, though, no Member of this Committee would want any
Federal agency to make a decision that would put our people in
jeopardy when traveling in space. And it is clearly also the
intent of the legislation that if it is necessary for the
safety of our men and women who go into space that the agency
is perfectly legally within the law to purchase the elements
they need from the Russians. Maybe it is a lesson for the
Congress. Maybe we ask for too many reports too often and maybe
we need to pick fewer reports that we want to be more serious
about with the State Department.
Thank you, Mr. Chairman.
Chairman Gilman. Thank you, Mr. Gejdenson. I am now pleased
Mr. Sherman. I wonder if I could make a brief statement.
Chairman Gilman. Yes, but first I want to recognize Mr.
Rohrabacher. The gentleman from California.
Mr. Rohrabacher. Thank you, Mr. Chairman, and thank you for
your leadership, Mr. Chairman, in this and other issues that
have meant so much to our national security. Chairman Gilman
has taken the security of this country very seriously and
especially on this issue of proliferation of deadly weapons to
countries that wish us harm. I think it behooves all of us to
take this issue very seriously because people's lives are at
We started this hearing having a moment of silence for five
dead American military personnel. This is a very serious
matter, and I am afraid that what we see is that our government
that supposedly has the responsibility of watching out for the
safety of our people has again shown itself either incompetent
or unwilling to meet that responsibility, and that is very,
very sad, shameful.
As chairman of the Space and Aeronautics Subcommittee and
author of the crew safety exception amendment to the Iran
Nonproliferation Act, I have taken a keen interest in ensuring
that the law is properly carried out. Sadly, Mr. Frankle's
testimony today leads me to believe that NASA is not properly
carrying out the act as clearly intended. When I wrote the
amendment that became paragraph (f) in section 6, my intention
was to address those emergency situations in which the Russians
insisted that we pay them to resolve an immediate threat to the
lives of our astronauts while on board the International Space
Station. I said so at the time, stating, quote, emergency
payments are allowed. Let me repeat that, emergency payments
are allowed, end of quote, and then the quote again, we need to
do this just in case there is a life threatening emergency, end
Working with attorneys on the Science Committee and in the
Office of Legislative Counsel, I crafted the amendment
specifically and very narrowly to address just those
emergencies, which is how Chairman Sensenbrenner characterized
the amendment during the floor debate. Nobody questioned my
emphasis on the emergency aspects during the Subcommittee
markup, consideration by the full Committee on Science or
during the House passage of this bill.
Mr. Frankle, I was there, I know what I said, and I know
what I meant and I know what this amendment states. I don't
know how we could have made it any plainer. I have to assume if
someone is coming up with another interpretation that this is
not being done in good faith.
Your testimony selectively quotes myself and Chairman
Sensenbrenner to create the false impression that the Science
Committee meant to give NASA the ability to bypass our
nonproliferation efforts. Nothing could be further from the
truth. Your interpretation turns the entire legislation upside
down and guts it of its meaning and I expected better from
NASA, America's space agency, than that.
Mr. Chairman, I believe the political appointees at NASA
are abusing the exception that I created for America's space
agency. Had I anticipated this abuse, I would not have offered
the amendment now being misused. This is a very serious matter.
People's lives are at stake. Today we have five dead sailors to
testify here before us of the importance of our
nonproliferation stand in that part of the world. Perhaps the
Committee should consider repealing this exception if we keep
seeing members of this Administration trying to misuse it
With that, I yield back the balance of my time.
Chairman Gilman. Thank you, Mr. Rohrabacher. The
gentleman's time has expired. Mr. Sherman.
Mr. Sherman. Mr. Chairman, I do think there is an emergency
situation. There is an emergency threat to NASA's credibility
before Congress. I have never seen a situation where someone
can just ignore the word ``imminent'' that is right in the
statute, ignore its plain meaning. By this definition any time
NASA wants to do anything it just says, well, that is necessary
to prevent a loss of life because anything that enhances
whatever we want to do will lead to more successful and safer
I have supported this Administration on an awful lot of
votes. It is embarrassing, frankly, to be on this side of the
room. We also have a situation where we as a Committee are
faced again and again with whether to put a waiver into a bill.
And we are told give the Administration some reasonable leeway.
And this interpretation is not just an attack on NASA's
credibility, it is an attack on whether there should be waivers
in any of the legislation that we pass. And finally it is an
attack on whether Congress can by statute direct the
Administration and the agencies to do anything or whether the
statute will simply be ignored with a fig leaf so small and so
thin that it leaves nothing to the imagination.
I am confident that if this interpretation is not reversed
that Congress will respond very quickly. And I have been an
intense supporter of the space program and I think that this
interpretation certainly undermines that.
Chairman Gilman. Thank you, Mr. Sherman. We are pleased to
be joined today by the gentleman from Washington, Mr.
Nethercutt, who is a Member of the Science Committee. Welcome.
Did you have an opening statement?
Mr. Nethercutt. Thank you, Mr. Chairman. I would just say
thank you for allowing us on the Science Committee and the
Space and Aeronautics Subcommittee to join this Committee of
yours. I am delighted to participate in the question and answer
Chairman Gilman. Thank you for joining us. We will now
proceed with our table of witnesses. We are pleased to have two
distinguished witnesses from the National Aeronautics and Space
Administration. Edward Frankle is NASA's General Counsel,
having held that job since 1988. He served previously as NASA's
Deputy General Counsel. He is a graduate of the Georgetown
University Law Center and also worked as a lawyer at the
Selective Service System and the Department of the Navy.
Welcome, Mr. Frankle.
Mr. Frankle is joined by Michael Hawes, NASA's Deputy
Associate Administrator for Space Flight Development. Mr. Hawes
currently is responsible for directing U.S. participation in
the International Space Station project. He is a graduate of
the University of Notre Dame and the George Washington
University and he spent most of his career in a variety of
positions with NASA. Welcome, Mr. Hawes.
Whoever wishes to proceed may go first. Mr. Frankle. You
may put your full statement in the record and summarize, or
proceed as you deem appropriate. Please proceed.
STATEMENT OF EDWARD A. FRANKLE, ASSOCIATE ADMINISTRATOR, OFFICE
OF THE GENERAL COUNSEL, NASA
Mr. Frankle. Thank you, Mr. Chairman, Members of the
Committee. Thank you for the opportunity to appear before the
Committee to explain how NASA has been applying the provisions
of the Iran Nonproliferation Act to the agency's contracting
activities with Rosaviakosmos, the Russian space agency. My
remarks will address specifically the legal analysis underlying
NASA's decisions to utilize the act's exception for purchases
necessary to ensure crew safety on the International Space
The President signed the Iran Nonproliferation Act of 2000
on March 14th, 2000, and among other things the INA restricts
certain U.S. Government payments to Rosaviakosmos or any
organization or entity under its control or any other
organization, entity or element of the government of the
Russian Federation made in connection with the International
Space Station. The act prohibits NASA from making payments to a
Russian entity for work on the ISS that the Russian Government
had previously pledged to provide at its own expense.
In addition, without regard to previous pledges, the INA
also restricts payments to any entity of the Russian Government
for work on the ISS or for goods or services relating to human
space flight purchased under a contract or agreement that came
into effect after January 1, 1999.
These broad restrictions do not apply, however, when the
President determines that Russia's cooperation in preventing
proliferation to Iran meets certain criteria prescribed in the
INA. Since the President has not yet made those determinations,
the INA prohibits payments by agencies of the U.S. Government
to Russian entities unless one or two specific exceptions
The first exception relates to the ISS service module,
which is now in orbit and is not relevant here. The other
exception relates to crew safety and authorizes payments by
NASA to Russian entities that are necessary to prevent imminent
loss of life or grievous injury to individuals aboard the ISS.
To invoke this exception the President must notify Congress and
within 30 days submit a report describing the measures that
NASA is taking to ensure that both the conditions necessitating
extraordinary payments are not repeated and it is no longer
necessary to make any such extraordinary payments, as well as
to provide a status on Russian progress in preventing weaponry
proliferation to Iran.
I should add that on September 11th, 2000 the President
delegated to the Secretary of State the authority under the act
to make findings relative to Russian cooperation in preventing
proliferation to Iran and to the NASA Administrator the
authority to determine whether payments to Russian entities are
required because of an imminent concern for crew safety.
The restrictions on payments in connection with work on the
ISS emerge out of section 6 and 7 of the INA. Section 6 states
no action of the U.S. Government may make extraordinary
payments in connection with the International Space Station to
the Russian Aviation and Space Agency or any other entity of
the government of the Russian Federation.
The act, however, provides an important exception with
respect to crew safety. Section 6(f) authorizes NASA to make
otherwise restricted payments to an entity of the Russian
Government if the President has notified Congress in writing
that such payments are necessary to prevent the imminent loss
of life by or grievous injury to an individual aboard the
International Space Station. It is the authority to make this
finding and to notify Congress that has now been delegated to
the NASA Administrator. For each such notice a report to
Congress is also required, but not necessarily before the
extraordinary payment is made. Specifically section 6(f)(2) of
the INA states that not later than 30 days after notifying
Congress that NASA will make extraordinary payments the
President shall submit to Congress a report describing the
progress made in analyzing Russia's cooperation in
nonproliferation to Iran along with the results of that review
to date; and, two, the measures that NASA is taking to ensure
that the conditions posing a threat of imminent loss of life or
grievous injury are not repeated and that future extraordinary
payments for those purchases are not necessary.
But neither the act nor its legislative history provide
guidance concerning the meaning or scope of the phrase
``imminent loss of life by or grievous injury to individuals''
or the circumstances in which it should be invoked. So to
implement the safety-related provision we first reviewed the
accepted rules of statutory interpretation to see how best to
interpret the narrow exception placed into the statute by
Congress. A definitive legal text in this area of the law
states: It has been called a golden rule of statutory
interpretation that unreasonableness of the result produced by
one among alternative possible interpretations of a statute is
reason for rejecting that interpretation in favor of another
which would produce a reasonable result. It is a well-
established principle of statutory interpretation that the law
favors rational and sensible construction. The Supreme Court
echos that opinion frequently. Therefore, NASA has to interpret
this provision and apply both the INA payment restrictions and
the exception for crew safety in a manner that achieves
reasonable and intended results and provides clear and rational
guidance to mission operations managers.
In addition to simple application of the rules of statutory
construction, we also looked to other areas of Federal law and
practice for insight into the meaning and application of an
imminence test for matters involving health and safety. While
even expert opinions may differ over whether imminent safety
concerns exist in a specific situation, one point is clear: In
health and safety cases, imminent does not mean immediate. If
technical expertise leads to the conclusion that an impending
accident or disaster threatening to kill or cause serious
physical harm is likely to occur, then the threat is imminent
even if not necessarily immediate. Indeed, Federal courts have
noticed on numerous occasions that agencies should avoid narrow
or limited construction of statutes concerned with the
protection of human safety.
From this research our conclusion was that in interpreting
the safety exception, we had to abandon the notion that the
word ``imminent'' should be taken literally to mean immediate.
That interpretation would lead to one of two results, either of
which appears to go beyond the expressed intent of Congress and
could easily lead to an unreasonable result. For example, such
an interpretation could require that no purchase of required
safety-related goods or services could be made until someone's
life was in actual jeopardy. The legislative record provides no
support for that extreme proposition, which would mean that
NASA, faced with a situation involving human beings in
definite, significant and current peril, could not respond
until specific determinations and notifications were made.
The second problem with interpreting ``imminent'' to mean
immediate is that if NASA determined that a safety requirement
exceeds current contract requirements the agency could not
address that requirement unless and until it developed into an
actual life threatening emergency. Since the threatening
situation could not be addressed in advance, continued
performance of the program would compel NASA to launch crews to
the station knowing that an unnecessarily dangerous situation
to which it was not prepared to respond could arise. Given
NASA's emphasis on safety and on simple moral grounds as well,
NASA would not be able to knowingly launch crews to the ISS
under those circumstances. Such a result would halt the ISS
program and mean that the crew safety exception was self-
nullifying and meaningless, another reason to conclude that
Congress did not intend such a result.
These observations led us to the conclusion that the use of
the word ``imminent'' in the INA was consistent with its use in
the safety cases cited earlier. This in turn means that NASA
could respond to newly recognized dangers and act to avoid
placing people in situations posing mortal or other serious
personal risk. I believe this interpretation is legally
compelling as reasonable and consistent with both the rules of
statutory interpretation and the intent of Congress. Indeed,
given the unpalatable results of interpreting ``imminent'' more
restrictively, I doubt that Congress could have intended any
In summary, I believe that NASA's interpretation is
appropriate and indeed a conservative one. It gives effect to
the statute--it gives effect to the exception written into law
but does not let the crew safety exception swallow the general
rule against extraordinary payments to the Russians.
Even in light of the paramount congressional and agency
concern for crew safety, it does not follow, for example, that
NASA may pay a Russian entity for any effort for which some
tangential or remote link to crew safety can be identified.
Instead, the rule of statutory construction compels the
conclusion that to be compliant with the statute NASA be able
to demonstrate that protecting the ultimate safety of the ISS
crew is paramount to the transaction and that the acquisition
of the goods and services will significantly reduce safety-
related risks to the international crew and to the overall ISS.
At least three factors appear to be highly relevant to such
determination. First, the goods and services should be
necessary to meet U.S. standards for crew training and to
reduce overall safety risk to the ISS. The second, the
procurement will either prevent the occurrence of conditions
that would pose a threat of imminent loss of life by or
grievous injury to individuals aboard the station or enable
U.S. personnel to respond promptly and effectively to those
that do occur. Those are considered the Apollo 13 response type
purchases, the requirement. And third, the required crew safety
capabilities and equipment are required to be available for use
by the ISS program as soon as possible as time is of the
In conclusion, Mr. Chairman, for the reasons described
above, it is my opinion that NASA has a thorough working
understanding of the conditions that must be met in order to
utilize the crew safety exception. It is with this
interpretation that the needs of the ISS program to make
purchases from Rosaviakosmos as described by--to be described
by Mr. Hawes are analyzed to determine if they are permissible
under the INA.
Chairman Gilman. Thank you, Mr. Frankle.
Mr. Hawes, again you may put your full statement in the
record or summarize as you deem appropriate.
STATEMENT OF W. MICHAEL HAWES, DEPUTY ASSOCIATE ADMINISTRATOR
FOR SPACE FLIGHT DEVELOPMENT, OFFICE OF SPACE FLIGHT, NASA
Mr. Hawes. I would like to just summarize some points. I
believe that NASA vigorously follows the U.S. laws and
regulations relating to nonproliferation. As requested in the
invitation letter, I will focus on NASA's intention to purchase
a limited amount of goods from the Russian Aviation and Space
Agency under the crew safety exception of the INA. As you know,
now NASA has planned for some time to purchase some hardware
from the Russian Aviation and Space Agency to further its
contingency planning and to further improve and enhance the
safety of the International Space Station. We heard earlier
comments of unwillingness to meet responsibility. We take our
responsibility very seriously in terms of crew safety in the
planning and execution of the International Space Station. We
also take very seriously our responsibility under the
provisions of this act, and we have thoroughly analyzed and
vetted the purchases that have been proposed by our program
team in Houston for their applicability in this crew exemption
Two items were recently purchased, as you know, under the
service module exception, those that were required for
contingency planning and activities on the International Space
Station. One of those items because of the successful launch of
the service module is no longer needed, and as we notified
Congress in our operating plan letter just recently, we have
terminated that activity. We are now finishing our deliberate
review of the items that we proposed purchasing, and as the ISS
program executive, I will shortly recommend to the NASA
Administrator that a limited set of hardware and equipment that
can only be provided by Rosaviakosmos in a timely fashion be
procured to prevent certain types of safety threats to the ISS
These equipment include on-orbit safety equipment,
simulation and training capability, and integrated operations
support and service. As the lead agency in the ISS partnership,
it is NASA's duty to ensure that we have done everything
possible to ensure the safety of the in orbit crew while we
proceed with the most complex and difficult international
scientific endeavor ever attempted. We would be negligent and
Congress would rightfully criticize NASA if we were to allow a
situation to develop in which our in orbit crews and our
mission control teams could not respond to emergencies. I do
not believe that it could be the intent of the Congress to
prevent NASA from being able to respond appropriately and
successfully to an Apollo 13 type of emergency.
Therefore, in order to improve our ability to prevent such
situations, we feel strongly that a limited purchase of Russian
hardware under the crew safety provisions is the most prudent
course of action and is in fact required if NASA is going to
continue to be a responsible steward of the Nation's space
As you know, NASA has been recently delegated the authority
by the President to determine which purchases come under the
crew safety exception of the INA. The specific timing of the
congressional notification by the NASA Administrator will be
based solely on NASA's assessments of the safety needs of the
International Space Station.
I thank you, and I will be happy to respond to any
questions. Thank you very much.
Chairman Gilman. Thank you very much, Mr. Hawes. I
understand that the crew of the space shuttle Discovery is
scheduled to dock with the International Space Station tomorrow
and remain aboard the station for a week. Does NASA consider
that those crew members face imminent loss of life or grievous
injury during their week aboard the station?
Mr. Hawes. No, we do not.
Chairman Gilman. In what way are the items that you plan to
purchase from Russia necessary to prevent loss of life aboard
the space station?
Mr. Hawes. The items that we are considering purchasing in
some cases are specific hardware to be utilized by the crew on
orbit during their long stay expeditions, such as a SAFER
system, which in our acronym world, is a Simplified--Simplified
Aid for EVA Rescue. I am sorry. My own acronyms lose me. That
is a small backpack that would allow any space walking crewmen
to be able to translate back to the space station if their
safety tether breaks or becomes disconnected. We have that
capability for the United States developed space suits. We do
not have that capability for the Russian provided space suits
which we will be using in some cases on the space station.
The other capabilities that we are talking about procuring
are mock-ups and trainers of the Russian elements to be
utilized in Houston so that not all of our teams have to travel
all the time to Russia both for training and for the use of
these capabilities in response planning to real time mission
anomalies. We are also intending to purchase software testing
and certain hardware certification testing to ensure the
compatibility of all of the systems that we are required to use
on the space station.
I believe these are very specific purchases that have all
been reviewed for their applicability to enhance the crew
safety in the program and are necessary for us to plan ahead
and train both our flight crews and our mission control teams
to be able to respond to situations that will arise on orbit in
the space station.
Chairman Gilman. Mr. Hawes, are any of these items
available in other countries aside from Iran?
Mr. Hawes. All of these items are Russian in origin. They
are mock-ups and trainers, for instance, of the Russian
Chairman Gilman. That is not what I am asking. Are these
items available in other countries?
Mr. Hawes. Not at this point, no.
Chairman Gilman. They are not available at all except
Mr. Hawes. They could be developed probably at a much
longer schedule, at a much higher cost, but would still have an
uncertain fidelity with regard to the actual Russian elements
that are flying as part of this space station.
Chairman Gilman. If your agency doesn't buy these items,
are the crew members on the station likely to be grievously
injured or lose their lives?
Mr. Hawes. We have operational work-around procedures for
these situations that we believe we can continue to fly in the
short term, but in terms of long-term solutions that those
would not be appropriate and we should continue to pursue
higher fidelity training and operational capability in the
Chairman Gilman. Mr. Hawes, if you do buy these items will
the risk of loss of life be eliminated?
Mr. Hawes. I think it will be significantly reduced by
having the proper training and real time response capability
here in the United States to manage space station anomalies.
Chairman Gilman. Can none of these items that you plan to
buy from Russia under the imminent loss of life exception be
bought here in the United States or elsewhere outside of
Mr. Hawes. As I said, these are items that are all Russian
in origin. We certainly could pay dramatically more on a much
longer schedule and with questionable fidelity. One of these
items actually has a rather interesting heritage. We had posed
to an American company to build this Simplified Aide for EVA
Rescue for the Russian suit. They came back to us after
struggling with this problem and said we cannot meet schedule
nor cost and we recommend that you go to the Russian
manufacturer of their space suit, Zvezda, and procure this
Chairman Gilman. Thank you. Mr. Gejdenson.
Mr. Gejdenson. Thank you, Mr. Chairman. It seems to me that
what you are doing here is you are buying items that are
fundamentally designed to increase either training or survival
of crew members, is that correct?
Mr. Hawes. Yes, sir.
Mr. Gejdenson. And what you are assuming is that the
Congress was reasonable enough that they would desire that you
would maximize the safety and training of the crew even if, you
know, a statistical analysis of the life and death threat of
failing to buy this equipment might not put it at the forefront
of immediate and imminent danger. Still, rational people in the
Congress would want you to do everything you could to keep our
people in space as safe as possible?
Mr. Hawes. Absolutely, sir. I believe that the Congress has
shown time and again that they are very supportive of the
International Space Station program and its execution.
Mr. Gejdenson. And in answering the Chairman's questions,
these products are not available from other countries or in the
Mr. Hawes. No, they are not.
Mr. Gejdenson. So you came to the conclusion that a
rational Congress would want you to not just take a look at
immediate danger, but to minimize danger to the people that go
in outer space, is that correct?
Mr. Hawes. Absolutely, sir.
Mr. Gejdenson. Thank you.
Chairman Gilman. Mr. Rohrabacher.
Mr. Rohrabacher. Yes. And Mr. Gejdenson's line of
questioning certainly makes a lot of sense when taken totally
out of the context of our efforts to keep weapons of mass
destruction out of the hands of people who will kill Americans
in the Middle East and elsewhere. It has something else to do,
doesn't it, we are not just talking today about NASA policy,
are we? We are talking about an effort by the United States
Government to prevent weapons of mass destruction from getting
into the hands of people who hate our country. Is that not
Mr. Hawes. And as I have said, sir, I believe we are
Mr. Rohrabacher. The answer is yes, is it not?
Mr. Hawes. Yes, and we are following the----
Mr. Rohrabacher. Thank you very much. Thank you very much.
So, Mr. Gejdenson, this isn't just about those questions. The
answer is those questions in the context of people who hate our
country getting their hands on weapons that will put the lives
of millions of Americans in jeopardy and also the lives of our
American military personnel, who we happen to be mourning today
for the very same reason.
Mr. Gejdenson. Will the gentleman yield?
Mr. Rohrabacher. Yes, I will.
Mr. Gejdenson. Recognizing the danger of countries like
Iran or proliferation from any country, it seems to me not an
unreasonable conclusion, if you are a Federal agency, that
Congress would want you to take every effort to make sure that
our personnel, whether on a ship in the Persian Gulf or being
sent into space, have the maximum chance for survival. And I
think what they have told us, if you can demonstrate them wrong
I would be interested, that the equipment they have purchased
is either for training or used in increasing the chances of
Mr. Rohrabacher. Thank you, Mr. Gejdenson. I will reclaim
my time. Whereas Mr. Gejdenson isn't on the Science Committee
and is certainly not on my Subcommittee which oversees this
very effort, he is unaware of the battles that have taken place
with NASA and this Administration as to try to mold our
relationship, this specific relationship over the International
Space Station with the Russian Government, in a way that we
believe is beneficial to the United States of America and not
to the political whims of this Administration and their short-
term goals with the former Soviet Union. What we have here, Mr.
Chairman, is a manifestation not of an effort by NASA to look
at safety issues, but instead is a manifestation of policy by
this Administration to deal in a certain way with the Russian
Government, even if that way in dealing with the Russian
Government is contrary to the wishes of the legislative branch.
This is arrogance, this is thumbing their nose at the
legislative branch and our power and oversight not only of this
Committee in terms of nonproliferation but in terms of my other
Committee and my Subcommittee on Space and Aeronautics. This
Administration time and again has ignored ours pleas and from
the Science Committee and Chairman Sensenbrenner and myself and
the other Members of the Aeronautics and Space Subcommittee to
try to deal specifically with Russian companies rather than
going through the Russian space agency.
Maybe you could tell us, you just mentioned a moment ago
that there was a recommendation to go directly and make your
purchase directly from the manufacturer of the space suit. Is
that what NASA did or did they make this purchase through the
Russian space agency?
Mr. Hawes. First off, we have not made any of these
Mr. Rohrabacher. All right.
Mr. Hawes. We are proposing--I am proposing to make these
purchases and as yet----
Mr. Rohrabacher. Are you proposing to make it through the
Russian space agency?
Mr. Hawes. We are proposing to make the purchases through
the Russian space agency.
Mr. Rohrabacher. All right. That answers the question.
Thank you very much. Which is exactly opposite, Mr. Chairman, I
might add, again exactly opposite of the direction that has
been given by Chairman Sensenbrenner and myself and other
Members of the Space and Aeronautics Subcommittee and Science
Committee to try to make what purchases they can not through
the Russian space agency but directly through contracts with
Russian companies so that the money can specifically be held
accountable. Again this problem is flowing not from a concern
for safety, but instead for political considerations of this
Administration in its dealings with a power structure in the
former Soviet Union, now Russia.
Let me get back to some of the testimony that we have had
here today. By the way, let me just say this testimony
demonstrates and, Mr. Frankle, with all due respect and I am
sorry, I think is why people hate lawyers. Your testimony
demonstrates why so many people hate lawyers in this country.
It is not only--well, it is unbelievable that we have people
making these type of arguments directly to the people who wrote
the legislation. You know, it is incredible. And let me ask,
who was it who directed you to write this report, this opinion?
And were you directed to write the opinion specifically to
justify that position? Or did you--are you telling us that you
just on your own came up with this idea that that was your
conclusion after reading the legislation?
Mr. Frankle. Mr. Rohrabacher, after I had seen the
legislation, there was a question posed to me as to the
interpretation of the crew safety exception.
Mr. Rohrabacher. Who posed that question to you?
Mr. Frankle. The program. I don't remember the exact
individual. It may have been Mr. Hawes. It may have been
somebody else. We looked at it. We looked at the legislative
history, which was not extensive. We looked at the cases, and I
came to that conclusion on my own that that was what the
Mr. Rohrabacher. You came to that conclusion on your own;
you were not instructed by anyone here or higher up in NASA to
come to that conclusion?
Mr. Frankle. I am the chief legal officer of the National
Aeronautics Space Administration and nobody directs me to make
a specific determination.
Mr. Rohrabacher. Where did you get your law degree, sir?
Mr. Frankle. Georgetown University Law Center.
Mr. Rohrabacher. Let me say it is your answer to that
question that stretches your credibility even further. I don't
know when it will break. It is like the tether on that
astronaut going out there, eventually it is going to break and
there are going to be some problems. And what we have here is
something that is stretching credibility beyond the breaking
point that someone could interpret the law. This is beyond
bending over backwards. This is legal contortions that boggle
And that is why people are upset because it appears to be
just another Clintonesque, what the definition of ``is'' is, in
order to pursue a policy or pursue one's goals in an arrogant
manner; who cares what the legislative branch says, who cares
what other people's thoughts are.
Mr. Chairman, my time is up but I would hope that we would
have a second round of questioning. This is a disgrace.
Chairman Gilman. I believe we will.
Ms. Ros-Lehtinen. Mr. Nethercutt.
Mr. Nethercutt. Thank you, Mr. Chairman. Mr. Frankle, I
will try not to pile on here but this does seem to me to be a
curious interpretation of the Iran Nonproliferation Act. I
could agree with you, sir, if we didn't have the word
``imminent'' there. You indicate that imminence does not mean
immediate. I can understand an interpretation like that if you
talked about loss of life and/or grievous injury to
individuals. The nature of space exploration is risky. I assume
you would agree with that. You send people up in space, there
is some risk involved.
Mr. Frankle. Yes, sir.
Mr. Nethercutt. So it seems to me that with all due respect
where your interpretation fails is in your focus on the word
``imminent/immediate,'' because it seems under that
interpretation then that any modification or training or
additional equipment could be interpreted to significantly
reduce safety risks and so therefore it is convenient. And I
don't mean that in a negative fashion to you, but it is
convenient to broadly interpret the word ``imminent'' in such a
fashion that you have. And I don't even know that it is
convenient to do it. I am a little surprised that you might
broaden the definition of ``imminent'' like you have.
Any response to that?
Mr. Frankle. Yes, sir. I don't think that we stretched
anything significantly at all, sir.
Mr. Nethercutt. Did you stretch it at all or just not
Mr. Frankle. You have to interpret a statute when it is
applied. You have to figure out how to apply it. The amendment
was clearly one that was intended to help protect the lives of
the astronauts on the International Space Station. When we
looked at how those same words were used in other cases, in
other statutes, we found that ``imminent'' did not have and is
not generally given by the courts a meaning that means--you
might believe ``imminent'' really means. Specifically, one of
the cases that is cited in my testimony is talking about--I
believe it is OSHA, and it says since the act in question is
remedial and a safety statute with primary concern being the
preservation of human life, it is the type of an enactment to
which a narrow or limited construction is to be issued. And
then--one more sentence if you let me, sir. And then to limit
imminent danger to immediate danger would result in many cases
in gambling with human lives. Such a result is clearly
inconsistent with the humane purposes of the act.
And I believe this amendment from all I could see and I
still believe that this amendment was put in for humane
purposes, so that we would not unnecessarily place U.S.
astronauts at risk, and therefore we should not interpret it
too narrowly and we should interpret consistent with this.
And, yes, space is a dangerous place. So we need to have in
place the ability to respond to on-orbit emergencies when they
Mr. Nethercutt. I understand that, and I appreciate that.
But the name of the act is not OSHA, the name of the act is the
Iran Nonproliferation Act. That should give you, as a good
lawyer, some sense of what the overriding expectation is of the
statute. And that is why it seems to me you have sort of
conveniently--and I say it respectfully to you--looked at the
safety side and ignored essentially what the Congress, Mr.
Rohrabacher and others--and I am on the Science Committee as
well as the Chairman--have done to try to prevent
So I think you would be hard-pressed to identify any
language that could be any stronger than ``imminent'' that
would also cure the deficiency or the broad definition that you
have concluded is there.
Mr. Frankle. May I respond, sir?
Mr. Nethercutt. Well, I guess we will have a second round
and I will have a chance to ask Mr. Hawes some questions. I
have some serious questions of him. But go ahead.
Mr. Frankle. We understand that this is the Iran
Nonproliferation Act, and we absolutely concur in the need to
encourage nonproliferation. But this is an exception to that.
Congress understood by putting an exception in, Congress
understands that there might be instances when it is necessary
to do something you would not otherwise like to do. Otherwise,
it would not have to have an exception. So we are trying to
interpret the humane purposes of the exception.
I don't believe that if you look at the factors that we say
you must consider in making this specific one, the fact that it
is going to have an absolute impact on our ability to maintain
our standards, that it will allow us to prevent the situations
that would pose immediate risk of death or grievous injury
would be reduced, or our ability to respond would be increased,
and that time was of the essence. You will see we were trying
to make this as narrow as humanly possible because of the
importance of the nonproliferation activity, but at the same
time allow us to run our program in a way that is sensible and
not unnecessarily riskful to the astronauts.
Mr. Nethercutt. I will follow up with you, sir. Thanks.
Chairman Gilman. Thank you, Mr. Nethercutt. We will now go
into a second round. Mr. Gejdenson?
Mr. Gejdenson. No questions.
Chairman Gilman. Mr. Rohrabacher.
Mr. Rohrabacher. Thank you very much.
So, Mr. Frankle, your testimony today is that you were not
given any instructions as to what the outcome of your analysis
of this would be. You weren't told to give a suggestion, give
us some sort of wording that will justify us going in this
Mr. Frankle. No, sir, I was not.
Mr. Rohrabacher. All right. Is there any wording that you
could have suggested to us now that--clearly you have the
people here who authored the legislation that you analyzed in a
way in which we are making clearer to you, your interpretation
was exactly the opposite of what we intended. What wording
would you have put into the bill that would have ensured that a
legal interpretation from you and others would not have
permitted you this leeway?
Mr. Frankle. Without getting to the point of actually
drafting provisions, it seems to me that if you go to the
extent of putting a crew safety exception into a bill, that it
should be a usable and meaningful exception. If it was really
to be interpreted as only being able to be used when people
were physically and immediately and currently at life-
threatening risk, I believe an exception won't work. So I am
not sure you could have drafted a crew safety exception that
would have had the impact that has been suggested.
I think that once you do, you have to allow the agency to
do things that are necessary to preserve and protect the safety
of the astronauts.
Mr. Rohrabacher. So there was no way that we could have
written this legislation that would have prevented your
interpretation of going exactly opposite to the intent of the
Mr. Frankle. I am saying I don't see how you could write
something that really, in fact, was a crew safety exception.
Mr. Rohrabacher. Do you believe that it is up to Congress
to establish policy, and not unelected officials in government
agencies like NASA?
Mr. Frankle. Congress certainly passes the laws, sets those
policies, and if they are signed by the President they become
law. And we are sworn to uphold the Constitution and law of the
United States, and I believe we do, sir.
Mr. Rohrabacher. And sets the priorities in terms of things
like--nonproliferation has a certain priority, and thus we put
certain things in the law, based on that priority; not in your
job at NASA, maybe not even the International Space Station,
but we actually have priorities that sometimes go beyond your
purview as an unelected official.
Mr. Frankle. Yes, sir.
Mr. Rohrabacher. All right. I think that what we have here
is an example of unelected people making the determination for
the policy of the United States Government, no matter what the
people who are elected to write the laws are going to write,
because there is a difference in priority: your ideas, the
safety of the crew, within the context of getting the mission
done. And obviously Congress meant that nonproliferation has to
be a high priority, and perhaps would cause delays, if
necessary, or restructuring of programs, like our relationship
with Russia, if the Russians continued to engage themselves in
activity that put millions of American lives or even certain
sailors lives at risk.
Is this hard for people to understand? I mean, it seems to
me that is very clear, and it seems to me, with all due
respect, that your agency, and that you gentlemen, and
especially by your last answer, are suggesting that the elected
officials are not going to set the policy.
Mr. Frankle. I don't think we--I certainly did not mean to
imply that. I think that the elected officials through the
legislative process do set priority, and it is up to the
agencies to implement it, and I believe we have been and are
implementing it to the best of our ability.
Mr. Rohrabacher. Mr. Chairman, just for the record, being
the chairman of the Space and Aeronautics Subcommittee and
having followed this issue and other Space Station related
issues very closely, let me just say that NASA has
demonstrated, time and again--and it is not necessarily NASA,
it might be other people in the Administration who are
directing those people at NASA to move in certain directions--
but, time and again, our efforts to direct policy in the Space
Station, especially with our relationship with Russia, has been
ignored. And this is particularly egregious today, because we
believe that the efforts of Congress to protect the lives and
safety of our citizens, the safety of our country, are at sake.
Chairman Gilman. The gentleman's time has expired. Mr.
Nethercutt, please be brief.
Mr. Nethercutt. I will be brief, Mr. Chairman.
Mr. Hawes, would you agree, sir, that you have been wanting
to buy $24 million to $35 million worth of equipment for well
over a year, including spacesuits and tethers and those things
that we have talked about here today?
Mr. Hawes. Yes, we have been pursuing purchase of much of
this equipment for some time.
Mr. Nethercutt. That is right. And we have done--how many
EVAs, extra-vehicular activity, have there been that have
occurred on the Space Station thus far and in space?
Mr. Hawes. Using Russian suits on the Space Station? Zero.
Mr. Nethercutt. Okay. But there has been an awful lot done
with the American spacesuits, right?
Mr. Hawes. Which have the backup capability we are trying
to pursue for the Russians.
Mr. Nethercutt. So by your logic, it sounds like you are
saying if we don't have that additional Russian equipment, that
somehow our people's lives are in danger, right?
Mr. Hawes. We will have U.S. astronauts conducting space
Mr. Nethercutt. You didn't answer my question.
Mr. Hawes. Yes, I am answering your question. We will have
U.S. Astronauts conducting space walks in Russian spacesuits on
the Space Station.
Mr. Nethercutt. That is right. What is wrong with American
spacesuits? We have to have the Russian spacesuits?
Mr. Hawes. In some cases we have to use the Russian
spacesuits, because they are best suited to the tasks that we
have to do. But in the early part of the Space Station, we will
have only Russian suits, because we will not yet have the U.S.
Airlock that allows us to do space walks with the U.S. suits.
Mr. Nethercutt. I am going to submit some questions for the
record, if I may.
Chairman Gilman. Without objection, and if you will respond
to those questions at an early date.
[The information referred to is available in the appendix.]
Chairman Gilman. Thank you for being with us, Mr.
How soon do you expect the NASA Adminisrator to decide
whether to proceed with these purchases from Russia?
Mr. Hawes. I cannot answer, sir. I have yet to take these--
Chairman Gilman. Where are you in the decision-making
Mr. Hawes. I have built my list. I have vetted it against
Chairman Gilman. And who has to make the decision?
Mr. Hawes. The Administrator has to make the decision.
Chairman Gilman. And you have no idea how soon he will be
making that decision?
Mr. Hawes. I have to go through my chain of command, sir,
to the NASA Adminisrator. I expect that to be shortly.
Chairman Gilman. We have been told by State that NASA will
not make any decisions about use of the imminent loss of life
exception until after the first report required to be submitted
to Congress under the Iran Nonproliferation Act has in fact
been submitted; is that correct?
Mr. Hawes. We have absolutely no agreement with State that
these events are tied whatsoever. We will proceed on the basis
Chairman Gilman. You have not made any agreement with the
Mr. Hawes. No.
Chairman Gilman. I guess because we have votes on the
floor, we will conclude our hearing.
I thank you, gentleman, for appearing before our Committee.
The Committee stands adjourned.
[Whereupon, at 11:23 a.m., the Committee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record