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– Gary Samore
Former White House Coordinator for Arms Control and WMD Terrorism
House Agrees on NK Sanctions Waiver

Peter Crail

The House of Representatives May 15 approved a provision granting the president the ability to waive certain sanctions on North Korea in order to allow U.S. agencies to advance additional efforts to dismantle Pyongyang’s nuclear facilities. The waiver was approved despite increasing criticism, in particular from Republican lawmakers, regarding the Bush administration’s diplomatic approach toward North Korea. (See ACT, May 2008. ) Similar legislation has been approved by two Senate committees.

The House provision, which was introduced by Foreign Affairs Committee Chairman Howard Berman (D-Calif.), was passed as part of the broader Security Assistance and Arms Export Control Reform Act of 2008. The Bush administration has sought congressional approval for such a waiver since the end of 2007 when it determined that certain sanctions would hamper U.S. agencies from spending funds in North Korea, including work to disable and dismantle North Korea’s nuclear facilities. (See ACT, January/February 2008. )

Legislation authored by Sen. John Glenn (D-Ohio) in 1994 forbids the United States from providing any nonhumanitarian assistance to states that have detonated a nuclear device and are considered non-nuclear-weapon states under the nuclear Nonproliferation Treaty. North Korea tested a nuclear device in October 2006.

As an interim measure, current U.S. disablement efforts have utilized a limited funding source in the Department of State that is exempt from the Glenn restrictions. U.S. officials have argued, however, that this funding will be insufficient to carry out more extensive work in the future to permanently dismantle North Korea’s facilities. (See ACT, March 2008. ) Negotiations to move forward with such dismantlement are expected to be held once North Korea and the United States fulfill commitments under a February 2007 agreement also involving China, Japan, Russia, and South Korea.

The waiver provision requires that the president certify that “all necessary steps” will be taken to make sure that any assistance provided to North Korea will not be used to improve Pyongyang’s military capabilities and that use of the waiver is in U.S. national security interests. It also specifies that the waiver must be used “in order to provide material, direct, and necessary assistance” for disablement, dismantlement, and verification activities in line with North Korea’s denuclearization.

According to the bill, the waiver authority would remain in effect for a period of four years after the enactment of the act but may not be exercised after the third year it is in effect. Congressional sources told Arms Control Today that this time frame may not be sufficient to carry out the dismantlement work. Moreover, in April 30 testimony to a Senate Appropriations subcommittee, William Tobey, National Nuclear Security Administration deputy administrator for defense nuclear nonproliferation, estimated that the process could take about five years, depending on the level of cooperation from North Korea.

In order to address concerns expressed by Republican lawmakers that the Bush administration has been too eager to grant concessions to North Korea, the bill also establishes conditions for the administration to remove North Korea from the State Department’s list of state sponsors of terrorism. The United States pledged in a February 2007 agreement to begin the process of removing North Korea from this list in return for North Korea disabling its nuclear facilities and its provision of a “complete and correct” declaration. (See ACT, March 2007. )

The bill requires the president to certify that North Korea is no longer transferring “technology related to the acquisition of nuclear weapons,” has provided a complete and correct declaration of all its nuclear programs, and has agreed to allow the International Atomic Energy Agency to monitor and verify the shutdown and sealing of “the Yongbyon nuclear facility.” The IAEA announced in July 2007 that it verified the shutdown of the plutonium-related facilities at Yongbyon and sealed them. (See ACT, September 2007. )

The terrorism list certifications were the result of a compromise between Berman and House Committee on Foreign Affairs ranking member Ileana Ros-Lehtinen (R-Fla.), who offered them as an amendment and co-sponsored the bill. Ros-Lehtinen has been critical of the administration’s approach to North Korea and, in September 2007, introduced legislation that would place more stringent conditions on the terrorism list removal than those contained in the security assistance bill. (See ACT, May 2008. )

Senate Mulls Waiver Provisions

Congressional sources told Arms Control Today that the Senate intends to draft its own security assistance bill, but expressed doubts about whether Congress can approve a measure and have it approved by President George W. Bush in this Congress.

A more likely scenario is that the North Korea provision would find another legislative vehicle. The Senate has added similar waiver provisions to a pending fiscal 2008 supplemental appropriations bill funding U.S. operations in Afghanistan and Iraq and a fiscal year 2009 Department of Defense authorization bill. Although the House versions of the war supplemental and the defense authorization bills do not include any waiver provisions regarding North Korea, Congress could decide to accept the provision in final compromise legislation.

Both Senate waiver provisions, which are identical, require the same presidential certifications as the House security assistance bill. Unlike the House bill, however, the Senate waiver provisions do not include any reference to the terrorism list. Nor does the waiver authority expire in the Senate bill, although the waiver itself must be renewed annually.

During the May 15 Senate Appropriations Committee markup of the war supplemental, Sen. Sam Brownback (R-Kan.) submitted an amendment intended to narrow the provisions of the waiver to allow the expenditure of funds only “on nuclear material and verification.” The amendment was defeated by a vote of 23-6.

A Department of Energy letter to committee members regarding the Brownback amendment indicated that the amendment would prohibit the United States from procuring equipment and other actions that may be needed to carry out disablement and dismantlement work.