[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





IMPLEMENTATION OF CERTAIN INTERNATIONAL NUCLEAR AND MARITIME TERRORISM 
                               AGREEMENTS

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 5, 2011

                               __________

                           Serial No. 112-71

                               __________

         Printed for the use of the Committee on the Judiciary









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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada                  MIKE QUIGLEY, Illinois
                                     [Vacant]

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel















                            C O N T E N T S

                              ----------                              

                            OCTOBER 5, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     2

                               WITNESSES

Thomas M. Countryman, Assistant Secretary of State for 
  International Security and Nonproliferation, U.S. Department of 
  State
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6
Brad Wiegmann, Deputy Assistant Attorney General, U.S. Department 
  of Justice
  Oral Testimony.................................................    14
  Prepared Statement.............................................    17

                                APPENDIX
               Material Submitted for the Hearing Record

Letter from Andrew M. Semmel, former Deputy Assistant Secretary 
  of State for Nuclear Nonproliferation Policy and Negotiations..    32
Letter of Support................................................    33
Letter of Support from William H. Tobey..........................    35
Letter from Ambassador Linton F. Brooks, Independent Consultant 
  on National Security...........................................    36
Response to Hearing Questions from Ronald Weich, Assistant 
  Attorney General, Office of Legislative Affairs, U.S. 
  Department of Justice..........................................    37

 
IMPLEMENTATION OF CERTAIN INTERNATIONAL NUCLEAR AND MARITIME TERRORISM 
                               AGREEMENTS

                              ----------                              


                       WEDNESDAY, OCTOBER 5, 2011

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10 a.m., in 
room 2141, Rayburn House Office Building, the Honorable F. 
James Sensenbrenner, Jr. (Chairman of the Subcommittee) 
presiding.
    Present: Representatives Sensenbrenner, Goodlatte, Gowdy, 
Adams, Scott, Johnson, and Jackson Lee.
    Staff Present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Arthur Radford Baker, Counsel; Lindsay Hamilton, 
Subcommittee Clerk; (Minority) Bobby Vassar, Subcommitte 
Counsel; Aaron Hiller, Counsel; and Veronica Eligan, 
Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee will be in order.
    Without objection, the Chair will be authorized to declare 
recesses during votes today, which I do not expect, and the 
Chair yields himself 5 minutes for the purpose of an opening 
statement.
    Today's hearing examines the important international 
agreements that improve our efforts to protect the United 
States from terrorist attacks and specifically against attacks 
utilizing weapons of mass destruction or the destruction of 
ships and maritime platforms. Full implementation of the 
treaties discussed today will not be achieved unless Congress 
amends existing criminal provisions of the U.S. Code.
    This hearing will focus on four agreements, two of which 
concern nuclear and radiological materials, the sabotage of 
nuclear facilities and the protection of nuclear fatalities and 
the materials used for peaceful purposes. The other two 
treaties relate to the use of targeting of a ship or maritime 
platform as a part of a terrorist attack, the transporting of 
certain materials by ship for terrorist purposes, and the 
transport of terrorists by ship, among the other things.
    Now, it may seem odd that we need new legislation regarding 
terrorist acts against ships or the smuggling of nuclear 
materials; and a logical question would be, don't we already 
have laws that prohibit this kind of activity? Existing law may 
cover certain aspects of these treaties, but, in order to 
comply fully and ultimately ratify the treaties, parties to the 
agreement are required to criminalize certain offenses as well 
as comply with extradition requirements and other obligations 
relating to international cooperation.
    The treaties themselves were modified to cover gaps in 
their original drafting. For example, one of the treaties we 
will hear about today concerns the physical protection of 
nuclear materials which originally only covered protection 
during international transport. An amendment to that treaty now 
also requires protecting domestic nuclear facilities and 
materials.
    There are many reasons why it is important that we ratify 
these agreements. Doing so keeps the United States at the 
forefront of global counterterrorism and counterproliferation 
efforts. Also, these measures are consistent with our domestic 
efforts to protect our homeland, and ratifying these treaties 
will encourage other nations to follow suit, which further 
helps protect the United States.
    I look forward to hearing more about these proposals 
advanced by the Department of Justice for implementing the 
treaty requirements and how these matters are important to our 
national security, and I want to thanks the witnesses for 
participating in today's hearing.
    It is now my pleasure to recognize for his opening 
statement the gentleman from Virginia and Ranking Member of the 
Subcommittee, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Good morning. I thank the Chairman for scheduling this 
hearing.
    When the Department of Justice proposes legislation to 
change our criminal laws, this Subcommittee benefits from the 
opportunity to hear testimony about why the Department believes 
that it is necessary and what its impact will be. Today we will 
discuss proposals to enact criminal offenses related to 
treaties signed by the United States related to international 
efforts to fight and prevent terrorism, certainly a laudable 
cause.
    At the outset, it is important to distinguish between the 
four treaties at the heart of our discussion and the 
legislation that has been proposed by the Administration to 
implement the treaties.
    The treaties themselves are the cornerstone of an important 
effort to update international law for the post-9/11 era. Two 
of the treaties, the International Convention for the 
Suppression of Acts of Nuclear Terrorism and the Convention for 
the Physical Protection of Nuclear Material, require party 
nations to better protect nuclear materials and to punish acts 
of nuclear terrorism. The two other treaties, the Convention 
for the Suppression of Unlawful Acts Against the Safety of 
Maritime Navigation and the Protocol for Suppression of 
Unlawful Acts Against the Safety of Fixed Platforms, address 
the use of ships and fixed platforms in terrorist attacks, as 
well as the transport of weapons, weapons delivery systems, and 
terrorist fugitives by sea.
    The United States signed these treaties in 2005. The Senate 
passed a resolution of advise and consent for all four in 2008. 
In an era where increasingly we rely on our allies to combat 
terrorism, these new treaty obligation also are plain 
commonsense, and I hope we find a swift path to total 
ratification.
    I am still not convinced, however, that the implementing 
legislation before us today is the best path forward. The fact 
is that existing statutes already cover most of our obligations 
under these new agreements. One proposal suggests creating a 
new Federal crime prohibiting the possession or use of a 
nuclear explosive device in an act of terrorism, but this 
conduct is already illegal, and 18 U.S.C. 832(c) prohibits the 
possession or use of a radiological weapon. 18 U.S.C. 2332(h) 
prohibits an unlawful possession and use of a weapon or device 
designed to release radiation. Section 831 and Section 2283 
prohibit the unlawful transport of these materials. Why is it 
then that we need to invent a new crime?
    If our new treaty obligations create a gap in existing 
statutes, then the Committee should address those gaps. But we 
need to be convinced that there are in fact gaps; and if there 
are gaps in existing statutes, we should close them in a manner 
that simplifies the criminal code, rather than complicates it.
    The legislative proposals raise similar questions where the 
Administration has clearly asked for more than is necessary to 
implement these treaties. Why should we add to the list of 
wiretap predicates? Why should we give the Attorney General the 
authority to board ships when the U.S. Navy and Coast Guard 
already have broad authority to conduct such boardings? Why 
should Congress preauthorize the President to conduct 
additional international agreements? The legislation would 
expand the scope of conduct subject to the death penalty, but 
how many times do we need to be able to execute an individual 
for a crime of terrorism?
    When we have answered these questions to our satisfaction, 
I suspect that we will have arrived at a simpler legislative 
proposal that fully honors our new commitments. I look forward 
to hearing from our distinguished witnesses and discussing with 
them these issues.
    I yield back. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. Thank you very much, Mr. Scott.
    It is now my pleasure to introduce today's witnesses.
    Thomas Countryman is currently serving as the Assistant 
Secretary for International Security and Nonproliferation in 
the Department of State. He has been with the State Department 
for almost 30 years. Mr. Countryman has served with distinction 
in a variety of assignments, including as the Principal Deputy 
Assistant Secretary for Political Military Affairs, Deputy 
Assistant Secretary for European Affairs, Deputy Chief of 
Mission at the U.S. Embassy in Athens, and Administrator 
Counselor for Political Affairs at the American in Rome. He has 
also worked as a Director of the Office of South Central 
European Affairs, Director for Near East and South Asian 
Affairs at the National Security Council, and as a counselor 
and political officer in Belgrade, Yugoslavia, and in the 
Department's Office of Eastern European and Yugoslav Affairs 
and Office of Counterterrorism. He graduated from Washington 
University in St. Louis with a degree in economics and 
political science and studied at the Kennedy School of 
Government at Harvard.
    Brad Wiegmann has served as Deputy Assistant Attorney 
General for National Security with the Justice Department since 
March, 2009. He has been a career government attorney for the 
past 15 years, having previously served in legal position at 
the Departments of Defense and State and with the National 
Security Council.
    Before joining the government, Mr. Wiegmann worked at Shay 
& Gardner in Washington where he focused on civil litigation 
and served as clerk for Judge Patrick Higginbotham on the 
United States Court of Appeals for the 5th Circuit. He is a 
graduate of Duke University and Harvard Law School.
    Both witnesses' statements will be entered into the record 
in their entirety. I ask that each witness summarize his 
testimony in 5 minutes or less.
    I now recognize Mr. Countryman. Please go ahead.

TESTIMONY OF THOMAS M. COUNTRYMAN, ASSISTANT SECRETARY OF STATE 
     FOR INTERNATIONAL SECURITY AND NONPROLIFERATION, U.S. 
                      DEPARTMENT OF STATE

    Mr. Countryman. Good morning and thank you, Mr. Chairman, 
Ranking Member Scott----
    Mr. Sensenbrenner. Could you pull the mike a little bit 
closer to you.
    Mr. Countryman. Good morning and thank you, Mr. Chairman, 
Ranking Member Scott, for the honor of being able to discuss 
with you today implementing legislation for these four 
multilateral counterterrorism treaties.
    The International Convention for the Suppression of Acts of 
Nuclear Terrorism addresses a critical category of terrorist 
activity, the nexus between terrorism and nuclear weapons and 
other radioactive materials and devices such as dirty bombs. 
The amendment to the Convention on Physical Protection of 
Nuclear Material addresses the physical protection of nuclear 
material used for peaceful purposes and domestic use, storage, 
and transport, in addition to that in international nuclear 
transport, and the physical protection of nuclear facilities 
used for peaceful purposes. And the Protocol to the Convention 
for the Suppression of Unlawful Acts Against the Safety of 
Maritime Navigation and the Protocol to the Convention for the 
Suppression of Unlawful Acts Against the Safety of Fixed 
Platforms Located on the Continental Shelf, the 2005 SUA 
protocols, address the potential use of maritime vessels and 
platforms as a means of conducting or enabling terrorist 
activity and the unlawful transport of WMD and related items 
via commercial ships.
    These four treaties are key tools in the international 
fight against terrorism and the proliferation of WMD. The 
criminal offenses covered under these treaties are serious 
offenses involving nuclear terrorism, WMD proliferation, 
maritime terrorism, and unlawful maritime transport of WMD and 
their delivery systems. Each treaty fills a gap in the existing 
international regime.
    In 2008, the Senate provided advice and consent to ratify 
all four of these treaties. The ratification is critical for 
several reasons.
    First, joining these treaties will enhance U.S. national 
security. Terrorism and weapons proliferation do not recognize 
international boundaries. To combat these threats effectively, 
we need not only a complete domestic legal framework but also a 
broad international legal framework to facilitate international 
cooperation. These treaties help achieve that goal.
    Second, the treaties bolster other U.S. Government 
counterterrorism and nonproliferation policy priorities such as 
the Global Initiative to Combat Nuclear Terrorism, the 
Proliferation Security Initiative, and the Nuclear Security 
Summit. They also further the objectives and support 
implementation of international obligations like United Nations 
Security Council Resolution 1540. The SUA protocols in 
particular help to promote implementation of U.N. sanctions on 
Iran and North Korea.
    Third, U.S. ratification of these treaties will encourage 
widespread ratification and implementation by other countries. 
For many years, the United States, both the Congress and the 
executive branch, have been and will remain the international 
leader in counterterrorism and nonproliferation efforts; and 
passage of this legislation will reinforce our leadership.
    Mr. Chairman, earlier this year, my colleagues from Justice 
submitted to Congress the draft implementing legislation that 
will enable us to ratify these key treaties. I will let my 
colleague speak about the specific provisions within the draft 
legislation, but just two more brief points regarding the 
relationship between the proposed legislation and these 
treaties.
    First, the proposed implementing legislation will ensure 
that the U.S. complies with our obligations which we have 
assumed under each treaty to criminalize certain terrorism-
related conduct, and it will establish criminal jurisdiction 
over that conduct. This will fill gaps in current U.S. law and 
facilitate international cooperation in the framework of these 
treaties.
    Second, and finally, the proposed legislation is modeled 
after legislation approved by Congress to implement earlier 
counterterrorism treaties. Most recently, in 2002, Congress 
passed legislation to implement treaties related to terrorist 
bombing and terrorist finance. The proposed legislation tracks 
that which has been successfully used in the past.
    Thank you. I look forward to your questions.
    [The prepared statement of Mr. Countryman follows:]
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you very much.
    Mr. Wiegmann.

TESTIMONY OF BRAD WIEGMANN, DEPUTY ASSISTANT ATTORNEY GENERAL, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Wiegmann. Chairman Sensenbrenner, Ranking Member Scott, 
thank you for inviting me to testify today regarding two 
important legislative proposals: first, a proposal to implement 
two international conventions concerning nuclear terrorism and 
nuclear proliferation; second, a proposal to implement two 
international protocols on maritime terrorism and the maritime 
transportation of weapons of mass destruction. The Department 
of Justice strongly supports enactment of the legislation 
needed to implement these four treaties, which we believe 
strengthen national security and enhance multilateral efforts 
to combat terrorism and proliferation.
    In 2008, the Senate gave its advice and consent to 
ratification of all four treaties, but the United States will 
not be in a position to ratify them until the implementing 
legislation is in place. We submitted the necessary 
implementing legislation in 2008, again in 2010, and most 
recently in April of this year. Today, I am going to briefly 
describe what the implementing legislation does, why it is 
necessary, and then I would be happy to take your questions.
    The four treaties, as Assistant Secretary Countryman has 
explained, are the Nuclear Terrorism Convention, an amendment 
to the Convention on the Physical Protection of Nuclear 
Material, and the two SUA protocols adopted in 2005, one on the 
safety of maritime navigation and the other on the safety of 
fixed platforms on the Continental Shelf. All four treaties 
establish specific criminal offenses related to terrorism and 
proliferation that state parties are obliged to include in 
their criminal codes.
    Our proposal would accomplish this by creating one new 
section in Title 18 of the U.S. Code and amending three others. 
The new section is 2332(i) governing acts of nuclear terrorism 
related to possession or use of a nuclear weapon or device or 
radioactive material, as well as sabotage of nuclear 
facilities.
    Section 831 of Title 18 would also be amended to cover 
nuclear smuggling; i.e., intentionally transporting nuclear 
material into or out of a country without lawful authority.
    The maritime terrorism offenses required by the two SUA 
protocols are reflected in amendments to 18 U.S.C. 2280 and 
2281. As amended, those provisions would address terrorism 
involving ships and offshore platforms, transportation of 
weapons of mass destruction and related materials, and 
transportation of terrorist fugitives.
    Now, while the United States already has an array of 
criminal offenses in these areas, there are some gaps between 
what the treaties require and what U.S. law currently covers. 
These gaps are both substantive and jurisdictional, and they 
are the reason why this implementing legislation is needed. 
Although my time is limited today, I would like to mention 
briefly a few examples of such gaps, as I did in my written 
testimony.
    First, let's consider the issue of sabotage of a nuclear 
facility. Existing U.S. law already prohibits a person from 
destroying or damaging a nuclear facility, but the current 
statute, 42 U.S.C. 2284, does not cover threats of sabotage as 
required by the nuclear treaties and as our proposed 
legislation would do.
    Second, 18 U.S.C. 2283 already prohibits the transport by 
vessel of biological agents, chemical weapons, and radioactive 
or nuclear material with the requisite intent. However, the SUA 
protocol and, hence, our legislative proposal also covers the 
maritime transport of equipment or technology that contributes 
to the design, manufacture, or delivery of a nuclear, 
biological, or chemical weapon. So there is the gap.
    Third, each of the four treaties require us to be able to 
prosecute an individual who is found in the United States if we 
do not extradite him, regardless of the connection of the 
offense to the United States. The relevant provisions of 
existing U.S. law addressing illicit nuclear activities, such 
as 18 U.S.C. 2332(h) and 42 U.S.C. 2284, lack this bound-in 
jurisdiction, and there would be no basis for us to assert 
jurisdiction over the required offenses in the absence of 
implementing legislation.
    Fourth, there is no real analog in U.S. law that addresses 
shipboard transportation of terrorist fugitives, particularly 
those who may not have committed offenses against U.S. law.
    So these are just a few examples of the types of gaps this 
legislation is designed to fill.
    In addition to addressing these gaps, the implementing 
legislation contains procedural and investigative provisions 
that, although not required by the treaties, will help ensure 
the United States is able to implement effectively U.S. law. 
Examples include designating these offenses as wiretap 
predicates and designating them as predicate crimes under the 
material support statute, 18 U.S.C. 2339(a).
    Thank you again for inviting me to this hearing. I am happy 
to answer any questions you may have.
    [The prepared statement of Mr. Wiegmann follows:]
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you very much, Mr. Wiegmann.
    The Chair yields himself 5 minutes to begin the 
questioning, and I don't think it will take that much.
    Mr. Wiegmann, you heard the litany of complaints that the 
Ranking Member gave during his opening statement. If we 
accepted all of these complaints, would we be in violation of 
the terms of the treaty?
    Mr. Wiegmann. Well, we think that the package we put 
forward is necessary to implement the treaty, if that answers 
your question.
    Mr. Sensenbrenner. No, it doesn't.
    Maybe you would like to send a letter to be included in the 
record when you review the complaints that Mr. Scott had in his 
opening statement on which would put us in violation of the 
treaty and which would not.
    Mr. Wiegmann. Sure.
    Obviously, there are different ways of implementing the 
statute. We think the manner in which we crafted it is the 
simplest way.
    Just to give you a few reasons for that, the reason why we 
have implemented other previous terrorism-related treaties is 
putting all the legislation in one place as opposed to trying 
to put it in different scattered sections of the U.S. Code 
where it would be hard to figure out.
    Mr. Sensenbrenner. Well, I support that, even though I got 
a lot of grief for moving Senator Leahy's National Security 
Letters into the PATRIOT Act. People blamed me for the NSLs, 
rather than him.
    Mr. Wiegmann. Right. And while there is some overlap, there 
is also some benefits in terms of extradition so we don't 
confront cases where other countries can't tell how we have 
implemented the treaty and we have dual criminality issues.
    So there is a variety of issues why we have crafted it the 
way we have.
    There certainly are gaps. As I mentioned in my opening 
remarks, we can't rely on existing provisions, which I admit do 
cover some of this conduct, but they don't cover all of it. So 
without the implementing legislation, we won't be in a position 
to implement the treaties.
    Mr. Sensenbrenner. Thank you very much.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you.
    In follow-up to the question from the Chairman, are there 
provisions in the bill that are not necessary for ratification?
    Mr. Wiegmann. Yes, there are. I am going to give you a 
couple of examples.
    One is a forfeiture provision that allows assets that are 
used in the commission of these offenses to be forfeited to the 
U.S. Government. That is something that we think is good 
practice. It is consistent with other parts of U.S. law where 
we do that. So we think it is appropriate here, but it is 
really a matter of domestic law and not required by the treaty.
    Mr. Scott. Can you give us a list for the record of the 
provisions that are not necessary?
    Mr. Wiegmann. We could do that.
    Mr. Scott. Mr. Countryman, the vote in the Senate to ratify 
all four of these treaties, was there any opposition?
    Mr. Countryman. I am not sure, Congressman. I will get you 
an answer to that as soon as possible.
    [The information referred to follows:]
    


    
                               __________

    Mr. Scott. I don't suspect there was. I think we all want 
to ratify these, so that is not the question before us. The 
question is whether these proposals are necessary.
    The Attorney General's statutory authority to board ships, 
the Coast Guard and the Navy have that authority and know how 
to do it. Does the Department of Justice have that expertise, 
Mr. Wiegmann?
    Mr. Wiegmann. We have, I believe, conducted such boardings 
in the past, yes.
    Mr. Scott. And is this specific authority necessary?
    Mr. Wiegmann. Again, not strictly necessary. We believe we 
already have the authority without the statute, but we think it 
is prudent to codify that to make it clear.
    Mr. Scott. You have in the bill preauthority to the 
President to enter into international agreements. Mr. 
Countryman, is there precedent for that?
    Mr. Countryman. I am sorry, sir?
    Mr. Scott. The Safety of Maritime Navigation Act would give 
the President authority to conclude additional agreements with 
other countries to further the underlying treaties. Is it 
unusual for the President to have preapproval to enter into 
agreements? Is there precedent?
    Mr. Countryman. My belief is that it is not, but if I could 
get a more complete answer to that question from our legal 
advisors, I will do that.
    Mr. Wiegmann. I can help on that.
    There is a precedent for that in the counternarcotics 
context, and the provision that we have here is based on that 
context, whereby we do have similar agreements that the 
executive branch has with other countries to work on 
counternarcotics interdiction and so forth. So this is modeled 
on that provision.
    We do already have in the executive branch agreements under 
the Proliferation Security Initiative that we have been doing 
under our own authority in the executive branch. But, again, we 
think it is prudent for Congress to endorse and kind of codify 
our authority to enter into those agreements.
    Mr. Scott. Thank you.
    One particular provision, the bill would enhance the 
application of the death penalty. Is that needed to ratify 
these treaties?
    Mr. Wiegmann. Again, it is not required, but we think that 
the death penalty, for example, is already provided for in the 
existing SUA protocol offenses. So in the amendments to those 
offenses, where the conduct is similar and related, we think 
would be anomalous not to have the death penalty for the new 
offenses when we have it for the existing SUA offenses.
    Mr. Scott. But you don't need it----
    Mr. Wiegmann. It is not required by the treaty. That is 
right.
    Mr. Scott. I think your answers to questions for the record 
will satisfy the other questions I have. Thank you.
    Mr. Sensenbrenner. The gentlewoman from Florida, Mrs. 
Adams.
    Mrs. Adams. Thank you, Mr. Chair.
    Mr. Countryman, I was just looking at this. If I understand 
it correctly, one requirement is to criminalize the possession 
of radioactive material other than nuclear material. Could you 
explain and give an example of radioactive material that would 
fall under this category? Are you talking about a dirty bomb 
scenario?
    Mr. Countryman. Yes, that is correct. There are a variety 
of uses for nuclear material in medicine, in industry. All of 
those require effective handling and disposal after they are 
done. These new requirements in the treaties impose additional 
obligations upon countries to protect that material so that it 
can't fall into the hands of a terrorist who could use it to 
build a radiological dispersion device or dirty bomb.
    Mrs. Adams. Could you elaborate on how the SUA protocols 
would enhance overall the maritime security?
    Mr. Countryman. I think, in brief, the amendments to the 
SUA protocols are intended to expand the protection offered. 
The first protocols essentially provided or created obligations 
to prevent criminal attacks against ships and fixed platforms. 
The recognition of what terrorists are capable of doing caused 
the international community to say we also need measures to 
prevent ships and fixed platforms from becoming the base or the 
platform for terrorist attacks. The specific measures that are 
included in the new protocols should enhance the security not 
only of the ships and platforms themselves but of anybody going 
near those ships and platforms.
    Mrs. Adams. This is my first year in Congress, so how many 
different attempts have been made by State and Justice to get 
support in Congress for implementing legislation, not counting 
this year, and what is the time span of these efforts?
    Mr. Countryman. The implementing legislation was first 
proposed in 2008 following the Senate's advice and consent on 
the treaties. It was resubmitted last year, in 2010, by the 
current Administration. And the most recent proposal you have 
before you closely tracks those previous proposals submitted. 
We look forward to working with Congress in these coming weeks 
so that this can be the year that this legislation is passed 
and we are able to complete ratification of the treaties.
    Mrs. Adams. And if you would, I would like to ask you, 
aside from treaty ratification, what gaps are there in the 
current U.S. law that will be closed by implementing these 
treaties?
    Mr. Wiegmann. Yes, I talked about some of those in my 
opening remarks. There are I would characterize it as modest 
differences between what existing U.S. law covers and what the 
treaties require us to cover. These can be jurisdictional in 
nature.
    For example, I mentioned the found-in jurisdiction. Again, 
each of the treaties sets up essentially an extradite or 
prosecute regime, wherein you either have to prosecute the 
individual or extradite him to a foreign country. Sometimes 
there will be an individual here who has violated maybe foreign 
law but hasn't violated U.S. law, and his only connection to 
the U.S. Law would be that he is present in the United States.
    We are obliged to either extradite or prosecute under the 
treaties an individual who is here so he doesn't have refuge in 
the United States, And other counties would have the same 
obligation to extradite or prosecute to us. The existing 
jurisdictional provisions don't provide for found-in 
jurisdictions.
    That is an example. There are a bunch of different examples 
I could raise for you today. I mentioned some of them in my 
opening statement. But there are jurisdictional and substantive 
gaps.
    Mrs. Adams. Can you explain the significance of your 
proposal for granting the Attorney General foreign ship 
boarding authority under the SUA protocols? I mean, are these 
for consensual boardings or----
    Mr. Wiegmann. Not necessarily. This could include, again, 
law enforcement boarding a ship to investigate criminal 
activity with a search warrant, et cetera, to board a vessel in 
U.S. waters to, let's say, search for a terrorist fugitive, or 
where we have reason to believe there is contraband, prohibited 
material on board. That is the type of thing we would be 
talking about.
    Mrs. Adams. And you would seek a warrant?
    Mr. Wiegmann. That is right.
    Mrs. Adams. I yield back.
    Mr. Sensenbrenner. The gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    Under current law, the relevant statutes contain a bar to 
prosecution which prevents Federal prosecutions where the 
underlying conduct is related to a labor dispute and is a 
felony under State law. Your proposals would exempt the new 
criminal offenses from this bar to prosecution. Can both of you 
explain why?
    Mr. Wiegmann. Yes, I can take that one.
    We could not envision any scenario under which one of these 
very serious terrorism offenses would be involved as part of a 
labor dispute. My understanding of the existing labor bar is 
that in the event of a strike or other similar activity the 
Federal Authorities would not prosecute the activity. It would 
be left to the States where they could criminalize the activity 
for violence or whatever occurred as part of a strike.
    We think that these terrorism offenses involving vessels 
and platforms and nuclear materials couldn't be really part of 
a legitimate labor dispute; and, in any event, that there is a 
strong Federal interest in having the Federal Government 
prosecute serious offenses like nuclear terrorism and so forth 
and not leave it to the States. So that is why we thought it 
appropriate not to have that bar applicable in this context.
    Mr. Johnson. Mr. Countryman?
    Mr. Countryman. Nothing further to add, sir.
    Mr. Johnson. Why would we bar the bar for labor disputes or 
anything that could--in other words, you are telling me that 
you can foresee no dispute that would be a labor dispute, you 
can see no labor dispute that would generate a prosecution 
under the statute, and I am wondering what is the harm in 
letting the bar to prosecution in labor disputes remain?
    Mr. Wiegmann. Again, in our view, in the extraordinarily 
unlikely event that one of these terrorism offenses would be 
part of a labor dispute, we think there is a sound interest in 
the Federal Government being able to investigate and prosecute 
that activity and not leaving it to the States. Because it is a 
Federal terrorism offense which is likely to be not something 
we would want to leave to State authorities.
    Mr. Johnson. All right, thank you. I yield back.
    Mr. Sensenbrenner. The gentleman from South Carolina, Mr. 
Gowdy.
    Mr. Gowdy. Mr. Chairman, I want to thank you for calling 
this very important hearing.
    I want to thank both of our witnesses for sharing their 
insights and expertise. They have done a remarkable job of 
answering the questions that I had, Mr. Chairman; and I would 
yield back the balance of my time to the distinguished 
gentleman from Wisconsin for him to use as he sees fit.
    Mr. Sensenbrenner. Well, the way the gentleman from 
Wisconsin will use it as he sees fit is by saying, without 
objection, the hearing is adjourned.
    Ms. Jackson Lee. Mr. Chairman?
    Mr. Sensenbrenner. Oh, the gentlewoman--I didn't see or 
hear you. The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    To the witnesses, we have several matters that we are 
engaged in, so let me start out with a question.
    Under the DOJ proposals, the Safety of Marine Navigation 
Act would give the Attorney General the general authority to 
board ships while investigating the violations of 18 U.S.C. 
2280 and ultimately authorize the President to conclude 
additional relevant agreements with other nations to further 
the aims of the treaty. While this has precedence, it is 
unusual to grant the President carte blanche authority to enter 
into agreements without consulting the Senate. How would this 
change preserve the constitutional role of the Senate in giving 
its advice and consent?
    If both of you would answer those questions, I would 
appreciate it--answer that question. Thank you.
    Mr. Countryman. Thank you very much, Congresswoman.
    There is precedent for authorization for the President, as 
we have just heard explained in counternarcotics legislation, 
to enter into these agreements to further the purposes of the 
treaty. We have a range of agreements with various countries 
under the Proliferation Security Initiative in which the United 
States and partners pledge to work together to interdict 
weapons of mass destruction and their precursor materials that 
are bound either for states or for non-state actors, that is, 
terrorists. These agreements serve us well, and we consult and 
inform the Congress regularly about these agreements.
    I think I may want to ask my colleague from the Department 
of Justice to talk about the larger issue that you have raised, 
how it connects to the larger treaties and conventions that the 
United States enters into.
    Mr. Wiegmann. Yes. There is a complex body of law about 
what things you have to do by treaty and what things you can do 
by executive agreement. It was included in the nature of these 
agreements, which are essentially law-enforcement-related 
agreements about ship boarding and so forth. That is both based 
on history and precedent and the relevant constitutional 
analysis that these are things that could be done by executive 
agreement.
    They are provided to the Senate and I think the House after 
they are entered into; and, as Assistant Secretary Countryman 
said, I think we do have more than a dozen at least, maybe 
several dozen of these agreements already. I am not aware of 
any objection that the Senate has asserted to the executive 
branch's authority to enter into these agreements as executive 
agreements. Nonetheless, we think it is useful for Congress to 
be on record to kind of codify the executive branch's authority 
to enter into these agreements.
    Again, it is not strictly necessary, but we think it is 
useful to have this type of provision so that we kind of have a 
clarity on the relevant authority there.
    Ms. Jackson Lee. Do any of these agreements or present 
implementation reflect the different climate that we are now in 
with respect to the, some would say, proliferation of weapons 
of mass destruction of the different independent or smaller 
countries that now pose, to some extent, international threat? 
Does this have any impact on the wave of piracy, for example, 
which one doesn't necessarily associate with weapons of mass 
destruction but certainly has troubled the waters in places 
beyond our immediate boundaries? To both of you.
    Mr. Countryman. On the first point, it certainly is related 
to the overall climate, the overall trends that we see in 
attempts by both states and non-state actors to acquire weapons 
of mass destruction. What the convention seeks to do and what 
the implementing legislation seeks to do is to ensure that we 
are closing every legal gap that we believe that terrorists 
will exploit.
    I expect as both technology and ingenuity advances there 
will be further need in the future for additional changes in 
these protocols. These are not intended to address the 
phenomenon of piracy that is now a problem off the coast of 
Somalia. There may be a marginal effect, but that is not the 
intention of either the treaties or the legislation.
    Ms. Jackson Lee. To the DOJ, does this help us move quickly 
under this structure of treaty, that we can implement or move 
more quickly than we might ordinarily need to do?
    Mr. Wiegmann. I think it does. I think in cases where we 
would be extraditing someone for one of these offenses, this 
will make it easier. It will make it so we make sure that our 
foreign partners have the same laws on the books that we have 
on the books, eliminate disputes as to whether, again, as I 
mentioned earlier, for dual criminality that that offense is 
extraditable and will enhance and speed that procession.
    There are also other provisions of the treaties that I 
think require other sorts of law enforcement cooperation.
    So, yes, we fully support the treaties for those reasons.
    Ms. Jackson Lee. I yield back.
    Mr. Sensenbrenner. The gentlewoman's time has expired.
    Now, without objection, the Subcommittee stands adjourned.
    [Whereupon, at 10:40 a.m., the Subcommittee was adjourned.]








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