THE SPECIAL SENATE COMMITTEE ON ANTI-TERRORISM
OTTAWA, Monday, June 11, 2012
The Special Senate Committee on Anti-terrorism, to which was referred Bill S-9, An Act to amend the Criminal Code, met this day at 1:30 p.m. to give consideration to the bill.
Senator Hugh Segal (Chair) in the chair.
The Chair: Honourable senators, this is the ninth meeting of the Special Senate Committee on Anti-Terrorism, in the First Session of Canada's Forty-first Parliament. In our first session this afternoon, we are very pleased to welcome officials from the Belfer Center for Science and International Affairs at the John F. Kennedy School of Government, Harvard University.
William Tobey is a senior fellow and is with us here in Ottawa today. By video conference from Boston, we welcome Matthew Bunn, who is an associate professor of public policy, and Simon Saradzhyan, who is a research fellow.
Today, honourable senators, we are continuing our examination of Bill S-9, the nuclear terrorism act. This 10-clause bill seeks to introduce four new indictable offences to Part II of the Criminal Code, in completion of Canada's compliance obligations under international treaties on nuclear terrorism.
These four new offences prohibit certain activities in relation to nuclear or radioactive material or nuclear or radioactive devices. This bill was introduced first in the Senate of Canada on March 27, 2012.
I believe that our guests have opening comments, so I will call on Dr. Tobey to offer an opening statement.
William Tobey, Senior Fellow, Belfer Center for Science and International Affairs, Harvard University: Mr. Chair and members of the committee, it is a pleasure to be here today. My colleagues at the Belfer Center and I appreciate the opportunity to testify on a matter of surpassing importance, preventing nuclear terrorism and proliferation. Defeating nuclear terrorism is vital to international peace and security. The proposed legislation, Bill S-9, which is consistent with and would support the implementation of the amended Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism, would advance nuclear security.
I would also note that it is consistent with long-standing and effective Canadian cooperative threat reduction efforts aimed at securing nuclear materials worldwide. These efforts have already borne considerable results, and the world is safer because of them.
I would like to briefly address the nuclear terrorism threat, while my colleague Matthew Bunn is prepared to describe progress on nuclear security and what remains to be done, and my colleague Simon Saradzhyan is prepared to offer a view of the Russian perspective.
In May of last year, the Belfer Center for Science and International Affairs at Harvard University and the Institute for U.S. and Canadian Studies of the Russian Academy of Sciences published The U.S.-Russia Joint Threat Assessment on Nuclear Terrorism.
The report was written by academics with government experience in military, intelligence and diplomatic positions and reviewed by a panel of former senior U.S. and Russian military and intelligence officers.
The joint threat assessment concludes that the threat of nuclear terrorism is urgent and real. Making a crude bomb would not be easy, but it is potentially within the capabilities of a technically sophisticated terrorist group if it were to obtain sufficient fissile material or an intact weapon. Al Qaeda has sought nuclear weapons for almost two decades, as have other groups at other times. I would note parenthetically that, given the death of Osama bin Laden, while al Qaeda's capabilities have been blunted, it has not yet been defeated.
The nuclear material sufficient for a bomb is small and difficult to detect, making it a major challenge to stop nuclear smuggling or to recover nuclear material after it has been stolen. Hence, the primary focus in reducing the risk of nuclear terrorism must be to keep weapons and fissile material from being stolen by continually improving security.
This threat is not hypothetical. The International Atomic Energy Agency has documented some 18 cases of fissile material seized outside the control of governments. Other cases have been reported subsequently, including several over the recent decade. While none of the cases involved sufficient material to construct a nuclear bomb, they all demonstrated significant security breaches.
One can only imagine the devastating consequences should a terrorist group succeed in detonating a nuclear weapon in a major city. Tens, perhaps hundreds, of thousands of people might be killed or injured. International commerce might grind to a halt as border control authorities struggled to ensure that no such devices entered other countries. Of course, international security arrangements would be changed in ways far more profound than the sweeping changes caused by the September 11 attacks.
Thus, the need for improved nuclear security, like the threat of nuclear terrorism, is real and urgent. The proposed legislation, as well as Canada's ongoing cooperative threat reduction efforts and new work, such as support for the World Institute for Nuclear Security, which facilitates the sharing of best practices, are vitally important and should be pursued urgently and energetically. Thank you for your consideration.
The Chair: Thank you very much, Mr. Tobey. Could I now call on Matthew Bunn for a few opening comments?
Matthew Bunn, Associate Professor of Public Policy, Belfer Center for Science and International Affairs, Harvard University: Thank you very much. It is an honour to be here with my colleagues to talk about a subject that I think is extraordinarily important to the security of Canada, the United States and the world. The potential consequences if terrorists did detonate a nuclear bomb are so horrifying, both for the country attacked and for the world, that even a small probability is enough to demand urgent action to reduce it further.
Canada and the United States have been leaders in the effort to secure nuclear material and to prevent nuclear terrorism. Since the September 11 attacks, both countries have improved security for their own nuclear materials, helped others to do the same, helped to strengthen the International Atomic Energy Agency's efforts in this area and worked to strengthen other elements of the global response.
If the United States and Canada are to succeed in convincing other countries to take a responsible approach to reducing the risks of nuclear theft and terrorism, at the Netherlands Nuclear Security Summit in 2014 and beyond, then the United States and Canada have to take the lead in taking responsible action themselves. Hence, it is important for both of our countries to ratify the main conventions in this area, the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism, as the Seoul Nuclear Security Summit called on countries to do.
The legislation before you would make it possible for Canada to ratify both of these conventions, and I urge you to support the legislation.
Since the collapse of the Soviet Union, and particularly since the 9/11 attacks, tremendous progress has been made in improving security for nuclear weapons and weapons-usable nuclear materials around the world. No longer are there sites where the essential ingredients of a nuclear bomb are sitting in what you and I would consider the equivalent of a high school gym locker, with a padlock that could be snapped with a bolt cutter from any hardware store and with no security camera in the area and no detector at the door to set off an alarm if someone were carrying out plutonium or highly enriched uranium.
At scores of sites around the world, dramatically improved nuclear security has been put in place, and, at scores of other sites, the weapons-usable nuclear material has been removed entirely, reducing the threat of nuclear theft at those sites to zero. More than 20 countries have eliminated all of the weapons-usable nuclear material on their soil. These successes represent, in a real sense, bombs that will never go off.
The Nuclear Security Summits in 2010 and 2012 provided new high-level political impetus that has accelerated this progress. However, there is still a great deal to be done, as my Belfer Center colleagues and I described in a report published before the Seoul Nuclear Security Summit, which I will provide for you by email.
In Pakistan, a small but rapidly growing nuclear stockpile that is under heavy security faces more extreme threats than any other nuclear stockpile in the world, both from heavily armed extremists and potential insiders who might help them.
In Russia, which has the world's largest stockpiles of both nuclear weapons and weapons-usable nuclear materials disbursed in the largest number of buildings and bunkers of any country in the world, the nuclear security measures have dramatically improved. However, some weaknesses remain that a more sophisticated conspiracy than those we saw in the 1990s could still exploit. Sustainability remains a major concern as Russia still has neither the strong rules effectively enforced nor the sufficient targeted funds assigned to sustain security for the long haul.
At the over 100 research reactors in the world that still use highly enriched uranium for their fuel, the security measures in place are often extremely modest. Some of these reactors — but by no means all — have enough material on site to make a nuclear bomb.
All of the cases of theft of highly enriched uranium or plutonium where we know how it happened were perpetrated by insiders or with the help of insiders. Therefore, protection against insiders is particularly important and in many countries still requires improvement.
Given that insider danger, corruption in the nuclear establishment is a concern, particularly in countries where corruption is very widespread, including both Pakistan and Russia, which I mentioned before. The recent case in which a general commanding a nuclear weapons storage site was arrested in Russia for corruption is a worrisome case in point.
At the moment, unfortunately, the mechanisms for global governance of nuclear security remain very weak. No global rules specify how secure a nuclear weapon or the material needed to make one should be. No mechanisms are in place to verify that countries are securing these stockpiles responsibly. Fukushima made clear that action is needed to strengthen both the global safety and security regimes because terrorists could do on purpose what a tsunami did by accident.
A central goal leading up to the 2014 Nuclear Security Summit must be to find ways to work together to strengthen the global framework for nuclear security and continue high-level attention on this topic after nuclear security summits stop taking place. Ratifying the conventions that are under consideration now is important, but it is only the beginning.
There are important roles that Canada can play in this effort. As the world heads towards that 2014 summit, there is an opportunity for groups of like-minded countries to join together and commit to high standards of security and mechanisms to convince each other that those standards are being met. Canada can and should join in that effort.
The United States has now committed to the goal of eliminating all the civil use of highly enriched uranium. Canada should join in that goal. At the Seoul Nuclear Security Summit, all the participants agreed on the goal of minimizing the civil use of highly enriched uranium with plans to be announced by December 2013. By then, Canada should join with the European and South African producers of medical isotopes in committing to shift to producing those isotopes without highly enriched uranium within the next few years. Canada should also work with Russia — with whom the leading Canadian isotope firm has signed a contract for medical isotope supply — to convince it to convert its production away from the use of highly enriched uranium for either the fuel for the reactor or the targets that produce the isotopes.
In December 2013, Canada should also announce a concrete plan for eliminating its last civil uses of highly enriched uranium and its last civil stocks of highly enriched uranium.
Before the Seoul summit, my colleagues and I produced another report on consolidating nuclear weapons and materials around the world, which I would be happy to provide.
I want to thank you for the opportunity to speak today, and I am open to your questions. Thank you.
The Chair: Thank you, Professor Bunn. I will now invite Simon Saradzhyan to share a perspective with us before we go to questions.
Simon Saradzhyan, Research Fellow, Belfer Center for Science and International Affairs, Harvard University: Thank you, sir. My presentation will focus on Russia as a case study.
The collapse of the totalitarian Soviet state has opened the floodgates of many trends suppressed previously, including the trends of ethnic separatism and religious fundamentalism.
Confluence of these trends and the government's initially botched response to it have produced a threat that remains a top national security concern in Russia. It is the threat of terrorism and the threat that the terrorists can use weapons of mass destruction or materials in their attacks.
To illustrate the point, I would like to focus your attention on the actions and intent of the terrorist groups based in Russia's North Caucasus.
These groups have acquired radioactive materials. They have threatened to attack Russian nuclear facilities. They have plotted to hijack a nuclear submarine using expertise acquired by a former naval officer who was part of these networks. They have also planted a container with radioactive materials and threatened to detonate it in Moscow in an effort to coerce the federal government into changing their position on the separatist movement in the North Caucasus.
That all happened during the first so-called Chechen war in 1994 to 1996.
The second military campaign in the North Caucasus — which started in 1999 and has since slowed down in Chechnya but unfortunately spread to other parts of the North Caucasus — has seen these groups scout nuclear facilities, including those where nuclear weapons are stored. They have also established a contact with an officer in the rank of captain who is serving as a guard at a nuclear power plant. All these things illustrate their intent.
I would like to point out that in their actions, such as a massive hostage taking at a Beslan school where hundreds of children have died, and earlier, horrendous acts such as apartment bombings. By displaying their preparedness to cause indiscriminate, massive casualties they have already crossed the moral threshold between conventional and catastrophic terrorism, even though none of their attempts to stage acts of catastrophic terrorism with use of nuclear weapons or materials have succeeded so far.
I would also like to point out that these groups are becoming increasingly frustrated in their failure to defeat the federal government. That increases their motivation to up the ante and go for even greater casualties, which an act of nuclear terrorism can unfortunately provide.
As well, they have shifted from the ethnic separatism agenda towards the religious fundamentalism agenda. The majority of the groups these days are seeking to establish an Islamic caliphate in the North Caucasus. It allows them to seek interpretation and justification of acts of catastrophic terrorism, including nuclear terrorism, in radical interpretation of Islam.
In terms of their capabilities, they displayed very serious capabilities to plan and execute complex attacks hundreds of kilometres away from their bases, deploying dozens of people from the North Caucasus to Moscow to take an entire theatre hostage with hundreds of people inside. While doing that, they used the help of turncoats. In some cases, they bribed their way to targets. The ranks of these terrorist groups have included people prepared to die in the course of the attack because of their religious beliefs.
I would also like to point out, when I speak about their capabilities, their ties to al Qaeda. Osama bin Laden personally met with representatives of the North Caucasus-based terrorist groups. Al Qaeda has been supporting these networks since the mid-1990s. An imam travelled to Russia and was detained in Dagestan but released because the authorities could not establish his true identity. He was allegedly on a mission to shop around for a nuclear bomb in Russia.
How has the Russian government responded to this threat? On the ground, the initial response, as I said, was a military one; and it did not work well. The first campaign ended in failure and withdrawal. The second campaign was diversified for military response to more of a counter-insurgency and counterterrorism response, including seek and destroy operations by small groups rather than carpet bombing and so on, with reliance on local loyalists.
On the federal level, Russia has proceeded to toughen the punishment for terrorism and to improve coordination. The 2006 law on counterterrorism finally designated one agency that would play the lead role in coordinating all other agencies in countering terrorism. It cancelled jury trials for terrorists, which previously had resulted in a number of acquittals. That sort of act, as unfortunate as I think it is, has also acted as a deterrent. It also introduced amendments to the Russian Criminal Code that would send accomplices, who have not done anything themselves but have assisted a terrorist in some way, to 20 years in prison. The current Russian Criminal Code provides life sentences for those who attempt to stage acts of nuclear terrorism or any other kind of weapons of mass destruction terrorism to life in prison, even if the attacks have not succeeded and they have not killed anyone.
On the international level, my colleagues have described all of the major instruments that Russia has signed onto, including conventions, NNTs and UN Security Council resolutions. I would like to point out a number of bilateral agreements that Russia signed with its lead partner, the United States, in international cooperation against nuclear terrorism. There is the Cooperative Threat Reduction Umbrella Agreement on cooperation and criminal law matters; the so-called "one, two, three agreement" on cooperation for the peaceful use of nuclear energy; and a number of joint statements. With Canada, Russia has also had a very successful record of cooperation, both multilaterally and bilaterally. In the multilateral field, I would single out the G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, which committed $20 billion at the 2002 summit; and $10 billion more was committed by the United States as well as significant sums by other partners. Canada has been playing a very positive role.
All these efforts in countering terrorism and terrorist groups to try to dismantle them, while using these bilateral and international mechanisms to improve the security environment not only in Russia but also internationally, have produced tangible results for Russia, first of all. Its effort to dismantle networks has resulted in the fact that the number of terrorist group members has decreased from several thousand to several hundred in the North Caucasus. These groups are no longer capable of mounting attacks that would storm entire towns. However, these groups are still capable of fielding up to 100 well-trained fighters that could split into groups and use insiders that they recruit to stage a multi-pronged attack on nuclear facilities.
I concur with Professor Bunn that much remains to be done in both improving nuclear security in Russia and sustaining the upgrades that have already been carried out. Russia has to do more to improve its security culture. Whether in the nuclear sphere or in other spheres in life, manifestations of poor security cultures are plenty. I will not dwell on them, but this is a serious issue. Apart from that consolidation, Professor Bunn has already described what should be done, so I will not repeat.
Corruption is an exceptionally important aspect of responding to this threat. As I said, groups have deployed with the use of corrupt officials, who have allowed them to pass or to register in Moscow preparing for their attacks. This issue has to be dealt with. Otherwise, no matter how good your defences are, they will not work if there is corruption. The same goes for insider threat, which is related, because some of the insiders can be corrupted. Others can be ideologically converted. The number of law enforcement officials in the North Caucasus who have switched sides because of their religious beliefs is significant: at least one dozen cases that I know of. This is something to keep an eye on.
Of course, Russia needs to address the root causes of terrorism and contributing factors in policy, which are lack of education and upward social mobility, poverty, and the youth bulge, combined with unemployment and abuses of civilians in the hands of law enforcers.
As for international level cooperation, I would like to concur with my colleagues. Russia, as one of the two countries that together account for 95 per cent of all nuclear materials and weapons, has to take a lead role in crafting an international strategy that would consolidate all weapons-usable material, a fewer number of sites that are reliably protected against all plausible combinations of insider and outsider threats. It has to work with the United States, Canada and other responsible countries that share the perception of the threat to stop our production of plutonium that could be used in weapons.
The Chair: Thank you, Mr. Saradzhyan. I will open the floor to senators with questions.
Senator Day: Mr. Tobey, on a point of clarification to your presentation, you talked about cases that had been reported subsequently. You said that threat is not hypothetical because 18 cases of material have been seized outside the control of governments. You indicated, which triggered my question, that none of these cases involve sufficient fissile material to construct a nuclear bomb. Could you tell us about fissile material? What are we talking about? I presume that how highly enriched it is factors into how much of it you need. However, when you talk about a nuclear bomb, you are not talking about dirty bombs. Is that correct?
Mr. Tobey: That is correct, senator. I was speaking about material that was either highly enriched uranium or plutonium that could be used to assemble a nuclear device should terrorists have wished to do so. The amounts in question were not sufficient to actually do so. The International Atomic Energy Agency has standards for what they call "significant quantities," which are essentially the amounts that might be necessary to make a nuclear weapon. For plutonium, it is 8 kilograms, and for highly enriched uranium of weapons grade, it would be 25 kilograms. The amounts of material seized generally have been smaller. In many cases, it is hundreds of grams, while in a few cases it has been somewhat larger than that.
However, it remains a source of significant concern for several reasons. First, in most of those cases, the amount of material was advertised as a sample of a larger amount for sale, the amount of which remains unknown. Second, the mere fact that this material was outside a secured facility shows that there has been a breach, which is of significant concern.
Senator Day: Thank you for that clarification.
Mr. Bunn, I would like to direct my next question to you, if you could help me with your comment. In Canada we have two areas of concern, amongst many others. One of the areas of concern is the storage of spent fuel at our nuclear generating plants. We have not solved the problem of long-term storage, so it is all temporary storage in ponds next to the facilities. Could you talk about spent fuel as being an area of concern, or is it the enriched uranium before it is used in the reactor that is of concern to you?
In Canada we do not use enriched uranium in the production of electricity through our CANDU reactor, but we have the spent fuel nonetheless. However, we do have enriched uranium that comes in here to Canada. We actually get it from the United States to make medical isotopes. Could you comment on each of those in terms of potential for problems and mischief?
Mr. Bunn: I would be happy to, senator. Thank you for the question. There are several different kinds of acts that terrorists might carry out with respect to nuclear or radiological materials. One is setting off an actual nuclear bomb. For that purpose the spent fuel is not a major concern, but another is sabotage of a nuclear power plant or another nuclear facility. That is where the spent fuel is important. The third is dispersing radioactive material in what is sometimes called a dirty bomb.
In terms of an actual nuclear bomb, it is highly enriched uranium or it is separated plutonium that is worrisome. In Canada, the highly enriched uranium is, as you say, used for the production of medical isotopes, and there are still one or two research reactors that use it as fuel that are in the process of being converted to use low-enriched uranium.
Once the production of medical isotopes has converted and the reactors have converted then there will also be the issue of getting rid of the highly enriched uranium waste that accumulated over the time when highly enriched uranium was being used.
In terms of the spent fuel, of course the United States has exactly the same problem and has also not managed to find a repository. Our blue ribbon commission in the United States actually looked to Canada as one example of a somewhat more democratic and open process for thinking about how to manage spent fuel than the one that the United States had pursued. I would say the pools are really the main thing to worry about from the point of view of sabotage and not so much the dry casks that the fuel is moved into. The fuel in Canada is, in my view, not as much of a concern as the fuel in the United States because with the Canadian CANDU reactor design the fuel is not taken to as high a burn-up and does not end up as hot if the water should drain from the pool as would be the case for a light water reactor such as the ones used in the United States. The potential for a fire in the fuel, I would argue, is significantly lower in Canada than it is in the United States or that it was feared to be at Fukushima in Japan.
I would argue that both the sabotage threat and the actual nuclear bomb threats are real dangers that need to be addressed. The radiological dispersal, the dirty bomb threat is probably more likely, but the consequences are so much smaller that overall I would argue that the risk, if you think of risk as probability times consequences, is probably not quite as substantial. That is certainly a point that can be debated.
Senator Day: Thank you very much.
Senator Buth: Thank you very much to our witnesses for being here today. Mr. Tobey, thank you for your opening comments, especially the comparison between Canada's proposed legislation and the U.S. potential legislation. Could you provide additional information on how Canada compares to our other close allies in terms of the regulations proposed and other measures that have been put in place?
Mr. Tobey: I have to admit I will comment only somewhat generally. I am not a lawyer, so even my knowledge of U.S. law is limited. I am more of an analyst of proliferation and counterterrorism issues.
My general understanding of both Canadian law and the proposed legislation is that it does meet international standards and in most cases surpasses them. The level of security in Canada tends to be better than the general level of security worldwide. Nonetheless, it is important, I believe, for both the United States and Canada to ratify the two conventions that we spoke of, and to implement the legislation necessary to do so, not only because it might improve the level of security here but also as an example for other nations. When we talked about nuclear smuggling and the cases involving nuclear smuggling, it has been disappointing to observe that in at least some of those cases the level of punishment allotted to those who were caught has been pretty meager.
Of course, that was a similar case with respect to those who were involved in the A.Q. Khan organization who trafficked in equipment and technology that could be used to make nuclear weapons. It is encouraging to see this legislation not only in terms of what it might do for Canada but also as an example for other countries.
Senator Buth: To clarify, there have been 18 known attempted thefts of nuclear material or 18 thefts?
Mr. Tobey: There have been 18 cases where fissile material — plutonium and highly enriched uranium — has been seized outside the control of governments. Remarkably, in only one of those cases do we know where the material came from, who took it, how they got it out of the facility, and who might have helped them. These are all important questions. I believe until they are solved we cannot be sure that the level of nuclear security worldwide is sufficient.
Senator Buth: You are not even sure what countries it potentially could have come from?
Mr. Tobey: That is correct.
Senator Dallaire: My question is leading, if I may, and I will go through a series of them. Mr. Tobey, your report of May 2011 has gained what acceptance within the military constructs and intelligence constructs of both Russia and the U.S.?
Mr. Tobey: We have worked to put together a group, named after the meeting of the two sides in World War II, of retired U.S. military and intelligence professionals, generally at the general officer level. They reviewed this report and endorsed its conclusions. Additionally, those who were authors of the report had generally worked in policy or military positions in the respective governments.
Senator Dallaire: That does not tell me how the official strategic position, allocation of resources, priority of effort is being committed to this assessment that you have provided both Russia and the United States forces.
Mr. Tobey: That is a fair point, and it is difficult to know exactly what the consequences of the report are. I can tell you that the U.S. government hosted a meeting of ambassadors in Vienna at the IAEA to help them to understand the findings of the report. The Russian government was less enthusiastic about participating in that event, and there are probably some differences between the United States and Russia in terms of their commitment to nuclear security.
Senator Dallaire: Is that post-meeting report available, or is it classified?
Mr. Tobey: Are you asking about the meeting in Vienna?
Senator Dallaire: Yes.
Mr. Tobey: As far as I know, no notes were taken about the meeting. I would be surprised if a Canadian representative were not present, but I do not know what provisions there are for sharing that information.
Senator Dallaire: The last recommendation in your report says:
Counterterrorism strategies too often depend on current trends shaping al-Qaeda’s status and activities. This is a prescription for being once again surprised by the unanticipated.
That is one reference versus the Caucasus.
When you look at the nature of the threats — bombs, hitting facilities and radiological dirty bombs — as you say on page 42:
Its main goal is to create an atmosphere of fear to coerce the entire society.
It is not the numbers; it is just the fact that you have used radioactive or nuclear devices. If the ultimate aim is to create fear and so on without necessarily employing it, even moving it being a significant threat and a real concern, what actions are being taken to reassure people that as nuclear devices are being modernized the old systems are being destroyed?
Mr. Tobey: Both the United States and Russia have undertaken a significant program to eliminate weapons-grade material. They agreed to eliminate 30 tonnes each of weapons-grade plutonium, and the United States is constructing a $4.8-billion facility in South Carolina to turn that material into nuclear reactor fuel which, when complete, will provide enough energy for 1 million households for 50 years, an enormous project.
On the Russian side a similar effort is being undertaken to get rid of those 34 metric tonnes. In fact, the United States has added an additional 9 metric tonnes to that amount. That is enough material for thousands and thousands of weapons.
In the area of highly enriched uranium, the United States has nearly completed the acquisition of 500 metric tonnes of highly enriched Russian uranium from their weapons program. Twenty per cent of American electricity comes from nuclear power. Half of that is fueled under this program. On average, one in ten light bulbs in America is powered by material from weapons that were once aimed at us or our allies.
Senator Dallaire: The old systems are being destroyed as part of the projects of modernization, or is that a separate exercise that is going on?
Mr. Tobey: The United States has not fielded a new nuclear weapon since the late 1980s, so there has been very little modernization of its arsenal.
Senator Dallaire: It is more delivery systems rather than bombs?
Mr. Tobey: Even delivery systems have not been modernized.
Senator Dallaire: The Brits are putting $40 billion into new submarines.
Mr. Tobey: The Brits are building new submarines, and there are plans to build new American submarines, but none have been built. We have not fielded a new nuclear weapon or delivery system since the late 1980s. Since the end of the Cold War, the U.S. nuclear arsenal is down by about 80 per cent.
Senator Dallaire: I told this committee before about my wife going across the border to have tests done in a hospital. They went absolutely berserk at the border and it took time to convince them that we were not trying to move stuff.
If the threat is the threat of using nuclear radiation material, are we covering the bases enough with this legislation without mentioning actual weapons but saying that even threatening is sufficient to cause a person to be arrested, prosecuted and held potentially for life?
Mr. Bunn: I leave it to you to interpret the words in your legislation, but my understanding is that the legislation covers actual acts, attempted acts and also threatened acts, so I would argue that it probably is sufficient.
Canada has existing laws on these topics. The purpose of this legislation is to ensure that the specific words associated with the conventions are in Canadian law so that Canada can ratify these conventions. Certainly the legislation would serve that purpose.
On your previous question, not only have the United States and Russia reduced the number of weapons deployed, but thousands of nuclear weapons have been physically dismantled. What is often perceived as modernization of the U.S. nuclear weapons stockpile is mainly what are referred to as life extension programs, which is fixing some components of existing nuclear weapons so that there is not a new object but a weapon along the lines of an old object. It is the same object, but it has been fixed up so that it will be reliable for a long period of time.
Thousands of U.S. nuclear weapons have been physically dismantled. Only about half of those that existed in the last days of the Soviet Union still exist. Although Russia has not declared what it has done in great specificity, we believe that they have dismantled thousands of nuclear weapons as well.
Senator Dallaire: That is extending the shelf life of systems.
Mr. Bunn: Exactly.
Senator Dagenais: Canada produces a lot of uranium. Are you not worried that some countries would be tempted to cross our borders to get some of it?
I also heard you talk about corruption. Do you think that we should take special measures in order to avoid what I may refer to as undue pressures that could come from abroad?
Mr. Saradzhyan: It depends upon what uranium you are referring to. I would be concerned mostly about weapons-grade uranium in general. My reference to corruption was to corruption inside Russia. I do not see any interest of the agents of terror inside Russia in obtaining materials for use inside Russia in Western countries. Yes, Russian-based terrorist groups have cooperated and established ties with international terrorist networks such as al Qaeda and other groups based in Central Asia. Yes, they have exchanged fighters and emissaries, and yes, they have established hideouts in Western Europe where they would rest and regroup before going back to the North Caucasus. So far, however, I have not heard of a single report that would say that Russia-based groups are seeking to acquire nuclear material in Western countries for use anywhere.
Mr. Bunn: I should add that the uranium that Canada produces in such large quantities is, of course, natural uranium, not enriched uranium. It is not especially useful either for a dirty bomb or for a nuclear bomb. The issue of corruption with respect to that particular production of uranium is, in my view, not an especially high security priority.
Where you really worry about corruption is, as Mr. Saradzhyan says, where it relates to people who have access to nuclear weapons, highly enriched uranium or separated plutonium.
Senator D. Smith: I was quite intrigued by your comments about the problems in the North Caucasus in Russia. You referred to the failed Communist regime, and I was there about four times before it failed, going back to the late 1960s. We were there in late 2009, and I will never forget — this is sort of an aside — our meeting with the foreign affairs committee from the Duma. The question was asked as to whether they had any advice for Canadians on lessons that Russia had learned from their experiences in Afghanistan. They all looked at each other, and no one said anything. They sort of looked at the chair, and, after 30 seconds of silence, he said, "The only thing I would say about that is good luck."
I remember chatting with one of them afterwards, and he said, "For a lot of Afghans, it does not matter where you are from. If you are a foreigner, they do not like you."
Okay, that is Russia. I want to talk about the one so-called Communist state that has not yet collapsed, North Korea. It is a rogue state if there ever was one. I would refer to it as a hereditary Communist monarchy for the family of Kim Il-sung.
I have been to South Korea a dozen times or so on private business, and I been to Panmunjom a few times and looked over the Bridge of No Return but never walked over it. When you talk to South Koreans, they all hate the regime, and a lot of them have family up there. They are all scared that, if that regime is ever going down, Kim Il-sung and that crowd will literally push buttons that set off all kinds of nuclear missiles that are aimed at Seoul to flatten the place. It is almost like a Communist jihad of some sort.
We saw the missile flop there a few months ago, but, with regard to a rogue state like North Korea and atomic matters, what thoughts do you have? Any observations?
The Chair: Which of our distinguished panel would like to try?
Senator D. Smith: Whoever would like to respond on whether it is a problematic situation. My hunch is that they may not do anything to provoke something, but if, for whatever reason, they are going down, I know that, in South Korea, they are just scared of them pushing buttons.
The Chair: I will ask Mr. Tobey to start and invite his colleagues to add as they deem appropriate.
Mr. Tobey: Certainly, Mr. Chair. Senator, I think that is an excellent question. I participated in several rounds of the six-party talks with North Korea and have spent a fair amount of time in South Korea. It is an enormously difficult problem. One thing I think is a bit encouraging is that, fundamentally, North Korea is a weak state surrounded by strong states. They face some of the strongest economic and military powers in the world, and I think this constrains them.
Equally, as a matter of personal opinion — and my colleagues may have different views — I think that the last 20 years or so of negotiations have demonstrated that there is very little indication that North Korea is willing to give up its nuclear weapons. Therefore, resolving the problem really must lie in areas outside of North Korea, in speaking to China and to other powers in the region and making it clear that peaceful reunification of the Korean peninsula is really the only logical solution to what is an economic, humanitarian and political tragedy. The people of North Korea are unbelievably oppressed. Frankly, it is an economic drain on the entire region. Northeast China is a rust belt and depressed. Were North Korea to become democratically reunited with the south, it would be a region of great economic growth.
Mr. Bunn: Let me add a couple of points, if I may. It seems to me that there are several grave dangers with respect to North Korea. One is the potential, which exists with any state that has nuclear weapons but particularly one that is so dark and ruled in such a dictatorial manner by such a small clique, that, if there were some future military crisis, the situation might get out of control and nuclear weapons might be used.
The second risk is, as you say, what happens if North Korea collapses. Among other things, if the North Korean regime were to collapse and end up in a failed-state scenario, then you would have a loose nukes problem, as you had, to some degree, when the Soviet Union collapsed. It would probably be a much worse scenario because, in the Soviet Union, you still had functioning governments in each of the pieces of what had been the Soviet Union. On the other hand, the nuclear stockpile is much smaller.
Another key issue with the North is the issue of the transfer of their capabilities to others. We saw, for example, the export of a plutonium production reactor to Syria. I — and my colleagues may disagree — do not worry a great deal about sales to terrorists simply because the North Korean regime is so bent on maintaining power that they would probably consider it a bad idea to give something to terrorists that they might use in a way that would provoke retaliation and possibly remove the North Korean regime from power forever. The amount of money that they might get from that, given that terrorists do not have the resources of states, is probably not enough to be considered important to the survival of the North Korean regime.
Nonetheless, I would argue that, even though I agree with Mr. Tobey that it is unlikely that we will be able to get them to give up their nuclear weapons entirely, the record suggests that they behave better, on the nuclear front, in periods of engagement and negotiation than in periods of isolation and sanction. It behooves us to see how much we can negotiate and, in particular, what kinds of steps we can put in place to reduce their incentives and opportunities to transfer and to at least cap their nuclear program so that they do not keep building it up further.
Senator D. Smith: Does our other witness want to comment?
The Chair: Mr. Saradzhyan, did you want to add to that in any way?
Mr. Saradzhyan: I can only restate the earlier arguments. I think that, in the case of the implosion of the state, the gravest threat would not be suicidal behaviour of the leaders but a loose-nuke scenario in which opportunists, generals or anyone with access to nuclear weapons-grade material or bombs, if they had more of them than they have now, would sell them to make money and try to find a hideout in some other country. That would be the greatest threat, not the suicidal behaviour of launching everything on South Korean or U.S. forces in the region.
In terms of the current situation, the gravest threat — I again concur with Mr. Bunn — is the transfer of technology from state to state. They have proved they can do it in a clandestine manner that was not detected until the work was well under way in Syria, and they can try to do it again. What were the consequences for North Korea after that was discovered? What has happened that could have changed their behaviour? I do not see anything particularly punishing out of that incident.
In terms of transferring to non-state actors, I think as much as they resemble a sect bent on implementing an ideology that is long defunct, they are also bent on survival. Transferring it to a non-state actor that would use the weapon or use nuclear weapons-grade material to assemble a weapon would be suicidal because the United States has explicitly said that it would use weapons of mass destruction against anyone who would cause such an attack. Retribution is no longer a problem. I do not think they would engage in such suicidal behaviour.
Senator D. Smith: I agree it would be suicidal. Thank you.
Senator Dallaire: You indicated that we produce uranium, not enriched uranium, and it is moved around and used in different areas. I go back to what I would consider to be the real threat: someone being able to convince the intelligence communities and the nations that they have the ability to threaten us with a dirty bomb, radiation or whatever other device.
Do we have enough in the world in the movement of the the raw materials to have established enough of the controls to ensure that it is not in any way, shape or form being made vulnerable, even before they are moved to a different level of capability? If we panic with two towers going down, even the word of somebody stealing some of this material out of Saskatchewan is enough to create panic. Do we handle that well enough with the legislation and the instruments we have now, or are there still gaps in North America in that regard?
Mr. Bunn: That is a good question. I would argue that if you are concerned about the fear and panic that could be caused by a threat from a radiological dirty bomb, you have to broaden your aperture and look way beyond just uranium. As it is mined out of the ground, uranium is not very radioactive; it is not useful for creating this kind of fear and panic. However, there is radioactive material in hospitals, industrial sites and in many different kinds of places in Canada, the United States and in most countries around the world that would be quite dangerous if dispersed by terrorists.
I think there is more to be done to improve the security and tracking of those kinds of materials. There are some countries that went into the radiological material business later than the United States did that have birth to death registries. Every movement of a radiological source is tracked and accounted for and so on. The United States does not have that today. I think that is the kind of direction we need to go in.
One of the things we have been doing in the United States, and I am not familiar to the extent to which it has been done in Canada, is putting in simple alarms and various forms of hardening. It makes it more difficult, for example, at a hospital for anybody to take the radiological source out of a piece of medical equipment. It is just changes to the medical equipment itself so that it is harder to take apart and get the source out, number one. Number two is putting in alarms that go directly to the local police and so on, so they would know if that happened.
Senator Dallaire: We tend to treat our population, certainly through the media, as grade 9 students, so even stealing low-grade uranium as an actual resource would create a reaction. To me, the legislation covers nearly all elements that might be in one way or another built or brought together or enriched to create a radiation problem and should fall under the same premise of security as the actual bombs and systems that could deliver them. Do you not agree with that?
Mr. Bunn: I think it makes sense to have a structured and layered approach where you have the most severe punishments and most intense controls over those materials that would cause the greatest problem if they were to get out of control, and progressively weaker controls for the things that pose a lower risk. It is what is called "graded safeguards" in the international community.
I think the approach that the Canadian regulatory authorities have generally taken is to put the most stringent controls on the things that need to be the highest priority. I am not saying there should not be any controls on the less dangerous materials, but just make sure the priority stays on the most dangerous materials.
Senator Dallaire: Thank you. I wish to make the point that it is not the actual use as much as the threat of use after 9/11 that has made everybody so hypersensitive and panicky. I would argue that any element that has any sort of loophole or is taken at less of a security can be blown apart by the media and by the panic of the population, including the politicians, to create fear and achieve the aim that they are looking for. If underwear can do it, certainly some of this material can.
The Chair: I am sorry I neglected to come to you in round one, Senator Frum.
Senator Frum: Not a problem, chair. I will be brief because I know we are at the end of our time. Gentlemen, in your report you mentioned that one of the vulnerabilities for nuclear terrorism is the amount of sensitive information that is available — nuclear weapons related information — on the Internet.
Maybe you can explain what exactly you mean by that, but also what, if anything, responsible governments can do to control that apparently dangerous information that is on the Internet.
Mr. Tobey: Sadly, I think it is basically a fact of life. When nuclear weapons were created first in 1945, the number of people that had access to that technology was in the perhaps dozens, and eventually, quickly, hundreds. However, I believe there are now tens of thousands of Americans who have access to nuclear weapons design-related information, and many thousands of others around the world in the various nuclear programs.
At one point it would have been necessary for someone who wanted to pursue a terrorist nuclear plot to come to the United States and study in a scientific library. That in itself is something of a barrier, even if it is not insurmountable. Certainly visa controls would need to be passed through.
Now of course, as you note, much material is available on the Internet. The world is much more interconnected than it once was. I do not see a way to turn back the clock on this. There may be one, but I looked at this problem when I was in government and there were no obvious solutions.
Mr. Bunn: I agree with Mr. Tobey. On the availability of this information, once the horses are out of the barn, you cannot get them back into the barn. What that emphasizes is the importance of controlling the ingredients for those recipes. If they cannot get the nuclear material to make a bomb they cannot make a bomb, no matter how much information they may have available. Again, it highlights the importance of security for nuclear weapons and the materials needed to make them.
Mr. Saradzhyan: I think in the case of Russia, and I suspect it is the case of many other governments, offices in charge of security, whether it is police or special services, are significantly outgunned. They just do not have the capacity to track and bring down even those sites that are in the domain of their national governments. I can see that problem manifest itself in such terrorist acts in Russia as the bombing of the open-air market. Ultra nationalists used a bomb that they constructed using a design downloaded from the Internet.
The sites exist, and if I go on a Russian segment of the Internet, I can find dozens of sites that offer all sorts of information about all sorts of weapon designs. I think you should decide where to best allocate resources to stop this from happening. I agree with Professor Bunn that it is simply not possible, even if you allocate 10 times more people to deal with the problem of the availability of this information on the Internet. It is best to try to secure the material components and the weapons themselves than to try to bring down all the sites that might have information on designs.
The Chair: Thank you, Mr. Saradzhyan. On behalf of all the members of this Senate committee, I thank William Tobey and Matthew Bunn and Simon Saradzhyan for being so helpful and generous with their time, insight, experience and academic work on this issue. We are very appreciative of the Belfer Center at the Harvard Kennedy School for also being supportive and helpful.
This is the ninth meeting of the Special Senate Committee on Anti-terrorism, in the first session of Canada’s 41st Parliament.
As part of our second meeting, this afternoon, we are welcoming Miles Pomper, Senior Research Associate at the James Martin Center for Nonproliferation Studies. Mr. Pomper is testifying by videoconference from Washington.
We are continuing our study of Bill S-9, the Nuclear Terrorism Act. This 10-clause bill introduces four new indictable offences pursuant to part II of the Criminal Code. Provisions related to those four new offences prohibit certain activities in relation to nuclear or radioactive material or devices.
Mr. Pomper, we understand that you have an opening statement. We are delighted to welcome you and invite you to give your statement, after which I will open the floor to questions.
Miles Pomper, Senior Research Associate, James Martin Center for Nonproliferation Studies, Monterey Institute of International Studies: Thank you very much, Mr. Chair and members of the committee. I appreciate the invitation to appear before you today to discuss Bill S-9. I know the committee just heard from three other experts in the anti-nuclear terrorism field from Harvard University. I believe they testified to the very real nature of the nuclear and radiological terrorism threat and why measures such as those you are considering today are important to Canada's security. Therefore, I wish to focus my initial testimony on two areas: How Bill S-9 compares with similar legislation currently being considered by the U.S. Congress and the importance of advancing the treaties to bolstering global nuclear security efforts.
The Bush administration submitted the 2005 amendment to theConvention on the Physical Protection of
Nuclear Material and the Nuclear Terrorism Convention to the U.S. Senate for advice and consent. This was granted easily in 2008. However, as in Canada, implementing legislation is needed in the United States before the treaties can be ratified by the Executive Branch.
The Obama administration submitted draft legislation for the first time in 2010 shortly before the first nuclear security summit was held here in Washington. At that time, the Democratic Party controlled both houses. The Obama administration submitted essentially the same legislation one year later in 2011, by which time there was a split Congress with a Republican House of Representatives and a Democratic Senate. Both times, the primary objections to the legislation came from the Democrats in Congress. Their key concerns related to the fact that they saw the legislation granting the Executive Branch powers beyond those required by the conventions themselves when it came to two aspects in particular: opposing the death penalty and certain wiretap provisions.
After nearly a year of negotiations between 2011 and 2012, final bipartisan compromise legislation was introduced this past week and passed by the House Judiciary Committee last Wednesday. This legislation still has to pass the full House of Representatives, and the Senate has to act on similar legislation. Indications are that the Senate is seeking a bill that is not only more sweeping than the current House bill but also more sweeping than the administration's initial proposal. To be clear, the current House bill is unlikely to represent final U.S. law. However, I will describe it and how it differs from the initial administration proposal.
This comes in certain respects. When you look at the issue of penalties, the U.S. House bill, like that in Canada in Bill S-9, introduces new offences similar to the four offences that Bill S-9 would add to the Canadian Criminal Code. The initial Obama administration proposal might have allowed some of these offences to carry the death penalty as other federal terrorism crimes do. The legislation Congress is now considering in the House would not provide the death penalty for these offences, although individuals conceivably might be simultaneously charged with other crimes that would. Now the maximum penalty in the House bill for all the offences would be life imprisonment and a $2-million fine.
In this way, the House bill differs from Bill S-9 in that not only the other three offences but also the threat to carry out offences would be subject to life imprisonment and a $2-million fine. By contrast, threats under Bill S-9 would only carry a maximum penalty of 14 years and no fine is mentioned.
Then there is the issue of wiretap authority. The original U.S. administration measure would have added the new nuclear and radiological terrorism offences to those crimes that are eligible for a wiretap predicate. The U.S. House bill does not. By contrast, Bill S-9 specifically adds new offences to those for which the Criminal Code permits law enforcement authorities to apply for warrants to intercept private communications of individuals.
There are also some differences in scope. I know that some senators on the panel there have complained that Bill S-9 does not include in its offences the crime of "making" a radioactive device. The U.S. House bill does so. Otherwise, the U.S. House bill appears more restrictive in the scope of the acts it punishes than Bill S-9. In part, this is because some of the nuclear provisions, as opposed to those covering radiological crimes, were already covered in U.S. law. However, it is a bigger difference than that.
As one example, the Bill S-9 provision would punish acts against a nuclear facility or that cause serious interference with or disruption of a nuclear facility's operations with the intent to cause death, serious bodily harm or substantial damage to property or the environment.
By contrast, the U.S. House bill restricts these sabotage offences to those that "cause the release or increase the risk of the release of radioactive material or causes radiation contamination or exposure to radiation."
Taking a step back from the specific legislation, I want to point out generally how important it is to global security that Canada ratify these treaties. As you know, Canada and other countries, at the 2010 and 2012 Nuclear Security Summits, committed to ratifying these conventions. At the 2012 Nuclear Security Summit, just held a few months ago in Seoul, states also made a particular commitment to have the 2005 CPPNM amendment enter into force by the time of the next nuclear summit in 2014. For this to happen, two thirds of the 145 parties to the original CPPNM, or 97 states, need to ratify the treaty. To this date only 56 have done so.
In ratifying this treaty, therefore, Canada will not only bring us one step closer to the magic number needed for entry into force. Canada is deeply respected in the international community for its leadership on nuclear issues and its commitment to multilateral diplomacy. Its ratification will encourage other countries to move forward with their own ratifications and improve global security.
Thank you again for this opportunity and I look forward to responding to your questions.
The Chair: Thank you very much, Mr. Pomper.
Senator Dagenais: Mr. Pomper, if there was a parallel to establish between the Canadian nuclear policy and the American one, how would you compare those two policies?
Regarding the two nuclear policies, is Canada getting closer to its allies and, of course, its American allies?
Mr. Pomper: In a general sense, on the value of these conventions and on the value of nuclear security, the United States and Canada are quite close. We both have strong domestic nuclear security regimes in terms of what kind of physical protection standards we apply and our concerns about materials. For instance, we regularly train our forces in a way that is required that a lot of other countries do not do and we have both supported these conventions.
I would say there is one area that I have concerns about Canada's record, which is not directly related to this pending matter. We are both very much in lockstep and looking to punish the same kinds of crimes. It has to do somewhat with the area of minimization of highly enriched uranium. Canada, as you know, is a large player in the medical isotope industry and it uses highly enriched uranium in the production of this material which is something that other countries, including the United States, and countries in Western Europe have moved to phase out.
Other than that one small difference, Canada, the United States and other countries Canada is allied with are standing shoulder to shoulder on these issues.
The Chair: As you may know, we have not had a death penalty in Canada since the 1960s. The changed legislation after negotiation in the American context was to go from a death sentence to a life sentence plus a substantial fine.
Setting aside the history of many American states having a death penalty and Canada not, do you have a view on the comparative punishment that is laid out now in the Canadian bill and the American bill, the American bill being a life sentence plus a $2-million fine and ours being somewhat less onerous? Do you have a constructive view about the deterrent factor with respect to this kind of legislation, setting aside whatever the different operating cultures might be in both countries?
Mr. Pomper: The main point of this, which I think both countries have now captured in their law, is that these are very serious crimes that deserve serious punishments. This was also called for in the conventions themselves. They are grave crimes that deserve grave punishments. I believe both countries have met that particular standard. As I pointed out, the question that Canada, would have to decide is whether there is a reason to punish threats differently from the actual commission of the offences. Is there a reason that you would punish those differently?
I have to be frank, I do not know enough about general Canadian law and Canadian jurisprudence to know if that is typically how Canada deals with those issues. However, I think that the addition of a fine makes a lot of sense, for instance; and then I would look at that question about whether you think the threats should be punished equally with the crimes themselves.
Senator Dallaire: I am concerned about the fact that we do not have the actual articulation of the bomb, the device, in the bill, and that might be an element that we need to seriously consider.
However, in that regard, what sort of philosophy is required to cover the base of ineptness in security structures in the authorities that have been chosen as different supervisors, the different inspectors general and the like? Should they also be specified in the law because of the nature of the beast that they are working with versus simply working through their near-normal disciplinary processes, be they military or civilian? Would it be in more important if power generating plants are hiring various security companies whose ethos and loyalty could sometimes be in question? To what degree are they really doing the analysis of these individuals?
Do you think we should not only be looking at bringing in that proof of ineptness or incompetence or errors into this arena as a deterrent, but also as incitement for people to do the job properly?
Mr. Pomper: I would think it is a question that you have to determine whether it is better to put these in a law or they should be regulatory matters, which I suppose they are at this point.
There is only so much that you can specify in the law itself. I think a lot of this is your oversight responsibility over the regulators to judge whether they are doing a proper job. One issue that would be helpful in that regard, which Canada does not do and the United States does, is to require the regulators to publish an annual report on nuclear security and what they are doing in this regard. This would help you to maintain better oversight of the regulatory function. However, I am not sure how much you can get into the specifics of each punishment, each background check and so on in legislation. It may be too rigid to do that, but that is, obviously, a judgment that you will have to make.
Senator Dallaire: I am not asking you as a legal person, although, as a commanding officer, I had authority, until not had that long ago, to use capital punishment. I am coming to you about the nature of the impact of this threat. This is not someone simply not locking a door on the local truck that the company owns. We are talking about something that could be of worldwide impact if it is known and potentially even used. Should we not be engaging those who are playing in this realm to be, in some way, linked into the severity of the legislation in order to prevent people from trying just that much more to get at it because these guys are playing at a much higher level of risk to their own freedom and, ultimately, job?
Mr. Pomper: I think it is worth considering. You just have to judge whether it will be too hard to craft the language to get to the specific level you want to get it carried out. There are certain basic requirements and security standards that Canada does have in place. The real question is: Are they actually carrying them out or doing the training? Are they doing the exercises and so on? You could legislate that, but, in the end, you would still have to have reporting or some kind of mechanism to check that they are doing it. The real issue is making sure that you have the reporting and the oversight to ensure that whatever — whether it is regulations or legislation — is being carried out. The follow-up, I think, is the most important.
Senator Dallaire: People using this material are civilian companies, working, of course, under the rule of law. They also work under another law called "profit" and have all kinds of innovative ideas of doing more with less and all these kinds of scenarios.
We see in a number of areas, even in the medical world, that they are cutting corners that have impacts. Planes flying into buildings is one thing. The minute one of these things goes off, we are in a state of world panic. With the first tactical nuke that takes out Atlanta or something, the whole game is over. It seems to me that maybe I could extract from you at least a statement that says that those who are engaged in the security of this material, not just those who are trying to commit an offence, must, by legislation, have a different set of parameters in regard to what regulates them to bring it closer to this legislation, in particular, as the highest threat to nuclear systems is them being stolen.
Mr. Pomper: As I said, I think that is worth considering. As legislators, you have to decide what the most efficient way of holding people accountable is. Is it to write it in the legislation and maybe put crimes or something else in there for failing to comply, or are there sufficient standards in regulations that are maybe not being enforced. You would have to get into the specifics of what is being done and whether people are carrying that out enough.
My understanding is that the Canadian regulations are generally pretty good, so it may be a question of whether there are sufficient crimes for failing to uphold the regulations. Are they just administrative penalties? Are they supposed to be criminal penalties? You would have to get into that depth. I do not want to give you an answer without knowing enough about the details of Canadian regulation on that matter.
Senator Dallaire: I am trying to get from you is that this is on a different plane than the run of the mill.
Mr. Pomper: Certainly. This is a very serious problem, and this is a responsibility that the operators and so on need to take seriously. It is not just operating a normal factory or normal business.
Senator Dallaire: This is not business. Thank you.
Senator Buth: Thank you, Mr. Pomper, for being here today. You made a comment, in your presentation, that the U.S. Senate is seeking a bill that is not only more sweeping than the current House bill but also more sweeping than the administration's initial proposal.
Can you give us any indications of how sweeping that will be? Can you speculate on where they might go with it and when they would be likely to introduce a bill? When might the whole process of negotiating between the House and the Senate end?
Mr. Pomper: I can tell you a little bit. They have not drafted anything, so this is just what I have heard in sort of corridor gossip about what people are thinking about. It is a Democrat-controlled chamber, so they will be more inclined to do what the administration wants. Part of the issue in the United States, with the death penalty, is that African American representatives were the strongest group in the House of Representatives that did not want it because, historically, the death penalty has tended to be disproportionately applied to African Americans. You do not have that kind of constituency in the U.S. Senate. I would think that some of the death penalty provisions and some of the wiretap language may make it back into the bill, and we may have a greater scope. However, since we have not had a bill introduced yet, it is a little too early to tell. That is just what I have been told by people involved in the process.
In terms of the timetable, the House is hoping to take the current bill to the full floor in two weeks. Usually the Senate, in that case, would take the House bill and use it as a base to mark up its own legislation, which may be quite different. They would wait until the House bill was passed and filed, and then they would operate off of that. We are probably talking about July. The administration is obviously eager to get this done. It has pledged to do so at the last two summits, so it is somewhat embarrassed not to have it done, given that it is the leader of the process. I would anticipate that we will see some action in the Senate this summer or fall, before the election.
Senator Buth: You commented that it is likely to be before the election then?
Mr. Pomper: Yes, I would think so.
Senator Day: Mr. Pomper, thank you to be being here and helping us through this material. I would like to go, first of all, to the potential U.S. legislation, the process that is going on down there and your comment in relation to scope. Some senators have complained that Bill S-9 does not include in its offences "making" a radioactive device, and the U.S. legislation does.
In the Canadian legislation, I just wonder if I could refer your attention to clause 5 at the bottom of page 3, if you have it before you. We have to go there to find out, for the purposes of section 82.3 to 82.5, what "device" means. Proposed paragraph 82.2(b), it says: "a device that disperses radioactive material."
Then, we go into one of the first offences that is created, over on the next page, and it talks about everyone who, with intent to cause death, et cetera — so there is a qualifier on this — alters the device. We must have a qualifier on it because presumably a radioactive device could be a medical device or something like that, which uses radiological material. It is altering that device with intent to threaten or to cause death or harm to the environment or to people.
Does that not cover, with that qualifier, the making of a radioactive device?
Mr. Pomper: It could. I guess the question would come in the situation where someone assembled all the non-radiological, non-nuclear materials for a device, absent evidence of the radiological materials. I think that would be the only case where there would be a substantive difference between making a device and altering a radiological device, or all these other elements of making what you would actually need to make a dirty bomb or radiological device.
Senator Day: It is alters radioactive material or a device, and you have to go back to the earlier page to determine what the device is.
Mr. Pomper: "Device" always had radiological material. In those cases, the language as I would read it would say if there is a device that already is used in medicine or something to dispense radiological material and you alter it so it is now a deathly device to people instead of saving lives, it is a crime.
Senator Day: It is under —
Mr. Pomper: Under Canadian law and under this, right. If you took explosive material and your intent was to use that in a dirty bomb but you had not done all the things with the radiological material yet — you just assembled the explosive material, the casing and all these things — I could see that case not be covered under the Canadian statute. That would be the only situation.
Senator Day: Would it be under the U.S., the term "making"?
Mr. Pomper: Conceivably. I am not sure how you could prove it is a radiological device if you do not have radiological material. That would conceivably open a small difference. I do not want to exaggerate the scope of this, but there are a few cases where it might be useful for a prosecutor to have that authority.
Senator Day: In the U.S. legislation, do you have the qualifier of making the radiological device for the purposes of taking life or harming the environment?
Mr. Pomper: It says:
. . . possesses radioactive material or makes or possesses a device with the intent to cause death or serious bodily injury or with the intent to cause substantial damage to property or the environment.
It has the intention part of it.
Senator Day: That is close to ours, except we use "alter."
Mr. Pomper: It is a very small difference. I do not want to exaggerate the scale. I knew that it was a concern of the committee, so I just wanted to point it out in the U.S. legislation.
Senator Day: A concern of some of the members of the committee.
I find clause interesting. I do not have our Criminal Code here to help us, but I presume that it is in 7 and 8 where the wiretap provisions appear. We do not have the full amount here, but I find in an interesting use of "etc." My lawyer friend will agree with that it is not usual in legislation to see the word "etc."
Mr. Pomper: I am sorry. I am missing clause 7 of your legislation.
Senator Day: Our legislation, clause 7, page 5, Bill S-9. Do you have anything like that in the U.S. or can you help with that?
Mr. Pomper: Which part?
Senator Day: I am looking at the first part of clause 7. Do you have something equivalent in the U.S.?
Mr. Pomper: I do not think so. Let me look at that for you.
Senator Day: They do not usually do summaries in the body of the legislation.
Mr. Pomper: There is no point where there is an "etc." in there.
Senator Day: That is good news because I can get our researchers to help us here, and they will not be able to say we have the same thing as the U.S. Congress has. Thank you very much. I appreciate your help.
The Chair: Mr. Pomper, I want to express the deep appreciation of the committee for the time you have given us this afternoon, and your insights and comparative analysis of the various pieces of legislation, both from the American perspective and with respect to the cross-border perspective.
It is of immense value to us as we consider this bill and go forward with it. I want to thank you and the Monterey Institute for International Studies for your assistance and support in this process.
Mr. Pomper: Thank you, Mr. Chair.
The Chair: If there is no other motion, I will just point out that we will gather next week on Monday to hear witnesses from DFAIT and the Royal Canadian Mounted Police. We will then move to clause by clause in the second hour as agreed between the two major groups, and we hope to circulate observations and any possible amendments. There has been some discussion about some toughening amendments well before the weekend, so people can reflect upon them before we meet on Monday.
Senator Day: For the record, I think it is a little unseemly to rush a clause by clause right after having evidence. I usually like to have a little bit of time to consider the evidence and the witnesses. I understand the urgency of wanting to pass this legislation, and it is not that controversial, so I will not push that point, but in the future I think we should provide some time between the last evidence and doing clause by clause.
The Chair: Senator Day, that point is very well taken and appreciated. I am hopeful that it will be part of the written record of this committee, and we very much appreciate the indulgence of the official opposition on this issue because of the urgency of this legislation.
If there is a motion for adjournment, I would accept it.
Senator D. Smith: So moved.
The Chair: Meeting adjourned.
(The committee adjourned.)