Reiteration of Requirement for Congressional Approval for Nuclear Testing

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Publication date: 
7 July 2004

July 7, 2004, No. 92 During a brief exchange on the Senate floor during consideration of the National Defense Authorization Act, reassurance was sought and provided that future nuclear weapons testing requires the permission of Congress. The exchange occurred on June 23 between Robert Bennett (R-Utah), Jon Kyl (R-Arizona), and Carl Levin (D-Michigan).

Utah is downwind of the Nevada Test Site, and some of Bennett's constituents are worried that the Robust Nuclear Earth Penetrator (RNEP) project would require resumption of testing. The website for Bennett's office has a section devoted to nuclear testing which includes newspaper articles and excerpts from a March 23 appropriations hearing transcript.

At this hearing, Bennett pressed the Administrator of the National Nuclear Security Administration (NNSA), Linton F. Brooks, about whether the Bush Administration anticipates "testing at any foreseeable time in the future." Brooks replied "we do not now foresee," and reiterated that Congress would have to fund such testing. The current NNSA appropriations bill allocates $24.9 million for Nevada Test Site readiness. The accompanying report states, "The conferees remind the Administration that Congressional authorization must be obtained before proceeding with specific activities that support the resumption of testing." Brooks confirmed the need for congressional approval, but added, "If I find a problem that can only be verified through testing, I would not hesitate to recommend to the secretary and he would not hesitate to recommend to the president that we test. I have no reason to believe I'm going to find that problem. But it is a hedge against the possibility of finding that problem that we have asked for the money to ensure that we are ready if that contingency occurs. We have no reason to believe it's going to occur." Later, Bennett met with Brooks and also with Deputy Secretary of Defense Paul Wolfowitz about nuclear weapons testing. Both subsequently sent letters to Bennett reiterating their positions about future testing (see below.)

To further reinforce the requirement for congressional authorization for testing, Bennett engaged Kyl and Levin in a colloquy on the Senate floor on June 23. A colloquy is establishes a legislative record. Bennett first asked Kyl "if he agrees that under current law, a vote from Congress would have to occur before a test could be conducted on RNEP?" Kyl replied, "yes, I agree that Congress would have to vote before a test could be conducted." Bennett asked the same question of Levin, the Ranking Minority Member of the Senate Armed Services Committee, who replied that, "Yes. I, too, agree that Congress would have to vote before a test could be conducted."

Bennett had originally planned to offer an amendment to the defense authorization bill reiterating the need for congressional authorization to resume testing. He decided not to, stating, "I have been dissuaded from offering that amendment by the arguments of some of my friends who insist it is unnecessary because it would be simply a statement of existing law. I wanted to be sure that was the case, and therefore I sought assurances from both the Department of Energy and the Department of Defense." Selections from the Brooks and Wolfowitz letters, which Bennet placed in the June 23 Congressional Record (p. S7275) follow:

- June 15 letter from NNSA Administrator Brooks to Senator Bennett:

"First, let me state unequivocally this Administration has no current plans or requirements to conduct an underground nuclear test. The Stockpile Stewardship Program is working today to ensure that America's nuclear deterrent is safe, secure and reliable. Currently there are no issues of sufficient concern to warrant a nuclear test. I certainly understand the concerns you and your constituents in Utah have with nuclear testing at the Nevada Test Site. However, I believe it is critical to maintain a readiness capability at the NTS to conduct such a test in the future if called for by the President of the United States, in order to ensure the safety and/or reliability of a weapon system. Therefore, I believe it is important for us to work together to ensure that the NNSA test readiness program continues to make safety a top priority.

"Furthermore, I know you are concerned that the ongoing RNEP study could lead to the resumption of underground nuclear testing. The RNEP study will not require an underground nuclear test. Should the President support, and Congress approve, full-scale engineering development of RNEP, the Administration does not intend to conduct a nuclear test. From the beginning, we have operated under the assumption that resuming testing to certify RNEP is not an option and for that reason, more than any other, the RNEP study is only looking at two existing weapon systems, the B-61 and the B-83. Both are well-proven systems with an extensive test pedigree from the 1970s and 80s. I would be happy to work with you and the Senate Armed Services Committee to address your concerns on this sensitive matter."

- June 23 letter from Deputy Secretary of Defense Paul Wolfowitz to Bennett:

"I understand that you have concerns about the Department's plans to study options for a Robust Nuclear Earth Penetrator (RNEP) that would give the United States the capability to threaten hardened, deeply buried targets in hostile nations. Specifically, you have raised concerns that the development of such a system could require the resumption of underground nuclear testing.

"I want to assure you that the Administration has no plans to conduct an underground nuclear test associated with the development of RNEP. As National Nuclear Security Administration Administrator Linton Brooks recently wrote to you, ‘the RNEP study is only looking at two existing weapon systems, the B-61 and B-83. Both are well-proven systems with an extensive test pedigree from the 1970s and 80s.'

"If RNEP were to move from its current study phase to development, such plans would be part of the Administration's annual budget request to Congress. The Administration's intentions concerning underground nuclear testing during RNEP development, if different from our current intentions, would be explicit in that request. Congress would have the opportunity at that time to debate and pass judgment on those plans."