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Russian-American Nuclear Security Advisory Council

An Overview Of The 2002 CTR Certification Crisis

David Smigielski, Research Assistant

April 2003

Included in the initial and subsequent legislation creating the Department of Defense and State Department Cooperative Threat Reduction programs is a clause that requires recipient states to meet six conditions in order for funding to be authorized. Specifically, the President must annually certify that each state is committed to:

(1) Making substantial investment of its resources for dismantling or destroying its weapons of mass destruction, if such state has an obligation under a treaty or other agreement to destroy or dismantle any such weapons.

(2) Foregoing any military modernization program that exceeds legitimate defense requirements and foregoing the replacement of destroyed weapons of mass destruction.

(3) Foregoing any use in new nuclear weapons of fissionable or other components of destroyed nuclear weapons.

(4) Facilitating United States verification of any weapons destruction carried out under this title, section 1412(b) of the Former Soviet Union Demilitarization Act of 1992 (title XIV of Public Law 102-484; 22 U.S.C. 590(b)), or section 212(b) of the Soviet Nuclear Threat Reduction Act of 1991 (title II of Public Law 102-228; 22 U.S.C. 2551 note).

(5) Complying with all relevant arms control agreements.

(6) Observing internationally recognized human rights, including the protection of minorities.

In addition, starting in FY2002, six conditions were placed on CTR funding for chemical weapons destruction in the former Soviet Union. The President must annually certify that Russia is meeting the following requirements:

(1) providing information that the United States assesses to be full and accurate, regarding the size of the chemical weapons stockpile of Russia;

(2) making a demonstrated annual commitment by Russia to allocate at least $25,000,000 to chemical weapons elimination;

(3) development by Russia of a practical plan for destroying its stockpile of nerve agents;

(4) enactment of a law by Russia that provides for the elimination of all nerve agents at a

single site;

(5) an agreement by Russia to destroy or convert its chemical weapons production

facilities at Volgograd and Novocheboksark; and

(6) a demonstrated commitment from the international community to fund and build

infrastructure needed to support and operate the facility.�

While the original laws did not give the President authority to waive these criteria, on 2002 action was taken to allow the President to waive these restrictions if it is "important to the national security interests of the United States."[i] This waiver authority allows funding for CTR projects to continue even if the recipient nation fails to meet all of the stated legislative requirements.

CTR Noncertification

Throughout the 1990s, this annual certification for CTR was generally routinely provided.[ii] However, on March 23, 2002 the State Department sent a cable to Moscow announcing that, because of concerns regarding Russian compliance with chemical and biological weapon treaties, the U.S. would be unable to provide the certification, and that funding for new CTR programs or initiatives in Russia would be frozen. Specifically, the rationale for the U.S. action centered around Russia's refusal to share a modified strain of anthrax with American scientists, its refusal to grant access to Ministry of Defense biological research centers, and its failure to admit past work on biological and chemical weapons.

The effects of the freeze were widespread. Because of the non-certification, unobligated funds, both from FY2002 and from prior years, could not be spent, although those already obligated or transferred to another agency remained available.[iii] In addition, funding for bioredirection programs run through departments such as Agriculture and Health and Human Services were frozen as were export control assistance programs. And while $450 million in DoD programs and $70 million in State Department programs were caught up in the controversy, the Department of Energy's threat reduction programs were not affected due to the fact that the DOE programs were created outside the CTR legislation and are not bound its certification requirements.

Russian Reaction

Moscow's reaction to the American announcement was predictably critical. On April 9, a week after the cable was sent, a Russian Foreign Ministry spokesman said that the American decision was not based on "concrete examples" and risked damaging trust between the two countries. He went on to say that the certification issue was being used by the Bush administration to "distract attention from the United States' own actions," a reference to Washington's resistance to the inspection protocol in the 1972 Biological Weapons Treaty and its efforts to oust the head of the Organization for the Prohibition of Chemical Weapons.

Congressional Reaction

Hill reaction to the certification issue was described as "ambivalent" by one Senate staffer interviewed by RANSAC. Some felt that it was better to get this issue out of the way now. According to one Hill source "the deadlock over access and transparency (between DoD and the Ministry of Defense) can only go on so long. This was bound to happen sooner or later." The fact that the Administration had selected a policy of deliberate ambiguity- only threatening not to certify- was seen as an indication that the announcement was intended to get Moscow's attention and signal the Bush administration's seriousness about Russian compliance with arms control treaties, and not a prelude to ending Nunn-Lugar funding, as some in the administration wanted. 

Senator Richard Lugar, author of the original CTR legislation, called the freeze a "dangerous situation" but also admitted that "complete Russian accountability and transparency in the chemical and biological arena [by Russia] have been lacking." Lugar said that he hoped Congress would work quickly to grant the President waiver authority, but that the Russians must be more forthcoming in respect to stockpile transparency and accountability.

The issue of primary interest for Congress was when to pass legislation granting the President waiver authority for the CTR funds. The White House had included in its second FY2002 supplemental request to Congress a provision amending the law and giving the President permanent authority to exempt states from the certification criteria. The idea was that immediate relief would be delivered via the supplemental, while a longer-term waiver would be addressed on a separate, parallel track in the defense authorization process. Congressional Republicans believed that Senators Byrd (at the time chair of the Appropriations Committee) and Daschle should make an effort to move the supplemental legislation as quickly as possible, though not because they saw a need for the waiver. Congressional Democrats, already dubious of the White House's decision, questioned the need to set aside other business to deal with this issue.

Granting General CTR Waiver Authority

Debate revolved around the scope of the waiver (i.e. whether it should apply to all countries or just Russia) and which conditions could be exempted (some called for just the arms control criterion to be waived, others for all six). Some members argued that the President should be given the authority to waive recipient countries in perpetuity. Others felt that the system of annual waivers should remain. Still others wanted language that would give the President a permanent annual ability to waiver without giving him the ability to grant a permanent waiver.

In its supplemental funding request, the White House proposed that the President be given "all or nothing" waiver authority; that is, a recipient nation could only be waived from all of the criteria or none of them. Many in Congress, however, felt this gave the President too much authority and insisted on giving him authority to waive individual conditions.

On August 2, 2002, the President signed the emergency supplemental bill and, five days later, signed a waiver to free up the CTR funds which had been frozen since April. While a step forward, this waiver would only last through September 30, 2002, after which CTR funds would once again be frozen until the next year's certification, which is usually decided in January, or by enactment of the longer-term waiver.

During the Spring and Summer of 2002, Congress was working on the FY2003 Defense Authorization Act which included longer term waiver authority.

The Senate version of the FY2003 National Defense Authorization Act granted the President permanent authority to waive the certification requirements if doing so would be vital to American national security. In addition, the President would be able to waive CTR requirements for any recipient nation, not just Russia.

The House version of the FY2003 National Defense Authorization Act, on the other hand, would only grant the President waiver authority through December 31, 2005 and would only grant such authority for Russia.

Unfortunately, the budget process took longer than expected and October 1 came and went without a new waiver, freezing CTR funds once again.

In December 2002, Congress passed the FY2003 Defense Authorization Act which included language granting the president waiver authority over CTR funds through FY2005. The authority to waive the chemical weapons conditions was much more restrictive and only extended waiver authority for one year, making it likely that the issue would come up again as FY04 budgets are drawn up. On January 14, 2003 the President signed two waivers which released both the frozen CTR funds and the funds "for the construction of a chemical weapons destruction facility in Russia."[iv]

Pending Action

In January 2003, Congressman Adam Schiff (D-CA) introduced the Threat Reduction Implementation Act of 2003 (H.R. 182) which would grant the President "permanent waiver of the restrictions on use of funds in states of the former Soviet Union" and "permanent waiver of restrictions on use of funds for chemical weapons destruction." The resolution is still pending and has been referred to the House Armed Services and International Relations committees for future consideration.