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IMPLEMENTATION OF CERTAIN INTERNATIONAL 

NUCLEAR AND MARITIME TERRORISM AGREEMENTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

OCTOBER 5, 2011 

Serial No. 112–71 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

[Vacant] 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

LOUIE GOHMERT, Texas, Vice-Chairman 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

SANDY ADAMS, Florida 

MARK AMODEI, Nevada 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

SHEILA JACKSON LEE, Texas 

MIKE QUIGLEY, Illinois 

[Vacant] 

CAROLINE LYNCH, Chief Counsel 

BOBBY VASSAR, Minority Counsel 

(III) 

C O N T E N T S 

OCTOBER 5, 2011 

Page 

OPENING STATEMENTS 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 1 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security .......................................................................... 2 

WITNESSES 

Thomas M. Countryman, Assistant Secretary of State for International Security and Nonproliferation, U.S. Department of State 

Oral Testimony ..................................................................................................... 4 

Prepared Statement ............................................................................................. 6 

Brad Wiegmann, Deputy Assistant Attorney General, U.S. Department of 

Justice 

Oral Testimony ..................................................................................................... 14 

Prepared Statement ............................................................................................. 17 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Andrew M. Semmel, former Deputy Assistant Secretary of State 

for Nuclear Nonproliferation Policy and Negotiations ...................................... 32 

Letter of Support ..................................................................................................... 33 

Letter of Support from William H. Tobey .............................................................. 35 

Letter from Ambassador Linton F. Brooks, Independent Consultant on National Security ...................................................................................................... 36 

Response to Hearing Questions from Ronald Weich, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice ........................ 37 

(1) 

IMPLEMENTATION OF CERTAIN INTERNATIONAL NUCLEAR AND MARITIME TERRORISM AGREEMENTS 

WEDNESDAY, OCTOBER 5, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10 a.m., in room 

2141, Rayburn House Office Building, the Honorable F. James Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding. 

Present: Representatives Sensenbrenner, Goodlatte, Gowdy, 

Adams, Scott, Johnson, and Jackson Lee. 

Staff Present: (Majority) Caroline Lynch, Subcommittee Chief 

Counsel; Arthur Radford Baker, Counsel; Lindsay Hamilton, Subcommittee Clerk; (Minority) Bobby Vassar, Subcommitte Counsel; 

Aaron Hiller, Counsel; and Veronica Eligan, Professional Staff 

Member. 

Mr. SENSENBRENNER. The Subcommittee will be in order. 

Without objection, the Chair will be authorized to declare recesses during votes today, which I do not expect, and the Chair 

yields himself 5 minutes for the purpose of an opening statement. 

Today’s hearing examines the important international agreements that improve our efforts to protect the United States from 

terrorist attacks and specifically against attacks utilizing weapons 

of mass destruction or the destruction of ships and maritime platforms. Full implementation of the treaties discussed today will not 

be achieved unless Congress amends existing criminal provisions of 

the U.S. Code. 

This hearing will focus on four agreements, two of which concern 

nuclear and radiological materials, the sabotage of nuclear facilities 

and the protection of nuclear fatalities and the materials used for 

peaceful purposes. The other two treaties relate to the use of targeting of a ship or maritime platform as a part of a terrorist attack, 

the transporting of certain materials by ship for terrorist purposes, 

and the transport of terrorists by ship, among the other things. 

Now, it may seem odd that we need new legislation regarding 

terrorist acts against ships or the smuggling of nuclear materials; 

and a logical question would be, don’t we already have laws that 

prohibit this kind of activity? Existing law may cover certain aspects of these treaties, but, in order to comply fully and ultimately 

2 

ratify the treaties, parties to the agreement are required to criminalize certain offenses as well as comply with extradition requirements and other obligations relating to international cooperation. 

The treaties themselves were modified to cover gaps in their 

original drafting. For example, one of the treaties we will hear 

about today concerns the physical protection of nuclear materials 

which originally only covered protection during international transport. An amendment to that treaty now also requires protecting domestic nuclear facilities and materials. 

There are many reasons why it is important that we ratify these 

agreements. Doing so keeps the United States at the forefront of 

global counterterrorism and counterproliferation efforts. Also, these 

measures are consistent with our domestic efforts to protect our 

homeland, and ratifying these treaties will encourage other nations 

to follow suit, which further helps protect the United States. 

I look forward to hearing more about these proposals advanced 

by the Department of Justice for implementing the treaty requirements and how these matters are important to our national security, and I want to thanks the witnesses for participating in today’s 

hearing. 

It is now my pleasure to recognize for his opening statement the 

gentleman from Virginia and Ranking Member of the Subcommittee, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Good morning. I thank the Chairman for scheduling this hearing. 

When the Department of Justice proposes legislation to change 

our criminal laws, this Subcommittee benefits from the opportunity 

to hear testimony about why the Department believes that it is 

necessary and what its impact will be. Today we will discuss proposals to enact criminal offenses related to treaties signed by the 

United States related to international efforts to fight and prevent 

terrorism, certainly a laudable cause. 

At the outset, it is important to distinguish between the four 

treaties at the heart of our discussion and the legislation that has 

been proposed by the Administration to implement the treaties. 

The treaties themselves are the cornerstone of an important effort to update international law for the post-9/11 era. Two of the 

treaties, the International Convention for the Suppression of Acts 

of Nuclear Terrorism and the Convention for the Physical Protection of Nuclear Material, require party nations to better protect nuclear materials and to punish acts of nuclear terrorism. The two 

other treaties, the Convention for the Suppression of Unlawful Acts 

Against the Safety of Maritime Navigation and the Protocol for 

Suppression of Unlawful Acts Against the Safety of Fixed Platforms, address the use of ships and fixed platforms in terrorist attacks, as well as the transport of weapons, weapons delivery systems, and terrorist fugitives by sea. 

The United States signed these treaties in 2005. The Senate 

passed a resolution of advise and consent for all four in 2008. In 

an era where increasingly we rely on our allies to combat terrorism, these new treaty obligation also are plain commonsense, 

and I hope we find a swift path to total ratification. 

I am still not convinced, however, that the implementing legislation before us today is the best path forward. The fact is that existVerDate Aug 31 2005 14:59 Feb 09, 2012 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\100511\70575.000 HJUD1 PsN: DOUGA
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ing statutes already cover most of our obligations under these new 

agreements. One proposal suggests creating a new Federal crime 

prohibiting the possession or use of a nuclear explosive device in 

an act of terrorism, but this conduct is already illegal, and 18 

U.S.C. 832(c) prohibits the possession or use of a radiological weapon. 18 U.S.C. 2332(h) prohibits an unlawful possession and use of 

a weapon or device designed to release radiation. Section 831 and 

Section 2283 prohibit the unlawful transport of these materials. 

Why is it then that we need to invent a new crime? 

If our new treaty obligations create a gap in existing statutes, 

then the Committee should address those gaps. But we need to be 

convinced that there are in fact gaps; and if there are gaps in existing statutes, we should close them in a manner that simplifies the 

criminal code, rather than complicates it. 

The legislative proposals raise similar questions where the Administration has clearly asked for more than is necessary to implement these treaties. Why should we add to the list of wiretap 

predicates? Why should we give the Attorney General the authority 

to board ships when the U.S. Navy and Coast Guard already have 

broad authority to conduct such boardings? Why should Congress 

preauthorize the President to conduct additional international 

agreements? The legislation would expand the scope of conduct 

subject to the death penalty, but how many times do we need to 

be able to execute an individual for a crime of terrorism? 

When we have answered these questions to our satisfaction, I 

suspect that we will have arrived at a simpler legislative proposal 

that fully honors our new commitments. I look forward to hearing 

from our distinguished witnesses and discussing with them these 

issues. 

I yield back. Thank you, Mr. Chairman. 

Mr. SENSENBRENNER. Thank you very much, Mr. Scott. 

It is now my pleasure to introduce today’s witnesses. 

Thomas Countryman is currently serving as the Assistant Secretary for International Security and Nonproliferation in the Department of State. He has been with the State Department for almost 30 years. Mr. Countryman has served with distinction in a 

variety of assignments, including as the Principal Deputy Assistant 

Secretary for Political Military Affairs, Deputy Assistant Secretary 

for European Affairs, Deputy Chief of Mission at the U.S. Embassy 

in Athens, and Administrator Counselor for Political Affairs at the 

American in Rome. He has also worked as a Director of the Office 

of South Central European Affairs, Director for Near East and 

South Asian Affairs at the National Security Council, and as a 

counselor and political officer in Belgrade, Yugoslavia, and in the 

Department’s Office of Eastern European and Yugoslav Affairs and 

Office of Counterterrorism. He graduated from Washington University in St. Louis with a degree in economics and political science 

and studied at the Kennedy School of Government at Harvard. 

Brad Wiegmann has served as Deputy Assistant Attorney General for National Security with the Justice Department since 

March, 2009. He has been a career government attorney for the 

past 15 years, having previously served in legal position at the Departments of Defense and State and with the National Security 

Council. 

4 

Before joining the government, Mr. Wiegmann worked at Shay & 

Gardner in Washington where he focused on civil litigation and 

served as clerk for Judge Patrick Higginbotham on the United 

States Court of Appeals for the 5th Circuit. He is a graduate of 

Duke University and Harvard Law School. 

Both witnesses’ statements will be entered into the record in 

their entirety. I ask that each witness summarize his testimony in 

5 minutes or less. 

I now recognize Mr. Countryman. Please go ahead. 

TESTIMONY OF THOMAS M. COUNTRYMAN, ASSISTANT SECRETARY OF STATE FOR INTERNATIONAL SECURITY AND 

NONPROLIFERATION, U.S. DEPARTMENT OF STATE 

Mr. COUNTRYMAN. Good morning and thank you, Mr. Chairman, 

Ranking Member Scott—— 

Mr. SENSENBRENNER. Could you pull the mike a little bit closer 

to you. 

Mr. COUNTRYMAN. Good morning and thank you, Mr. Chairman, 

Ranking Member Scott, for the honor of being able to discuss with 

you today implementing legislation for these four multilateral 

counterterrorism treaties. 

The International Convention for the Suppression of Acts of Nuclear Terrorism addresses a critical category of terrorist activity, 

the nexus between terrorism and nuclear weapons and other radioactive materials and devices such as dirty bombs. The amendment 

to the Convention on Physical Protection of Nuclear Material addresses the physical protection of nuclear material used for peaceful purposes and domestic use, storage, and transport, in addition 

to that in international nuclear transport, and the physical protection of nuclear facilities used for peaceful purposes. And the Protocol to the Convention for the Suppression of Unlawful Acts 

Against the Safety of Maritime Navigation and the Protocol to the 

Convention for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf, the 2005 

SUA protocols, address the potential use of maritime vessels and 

platforms as a means of conducting or enabling terrorist activity 

and the unlawful transport of WMD and related items via commercial ships. 

These four treaties are key tools in the international fight 

against terrorism and the proliferation of WMD. The criminal offenses covered under these treaties are serious offenses involving 

nuclear terrorism, WMD proliferation, maritime terrorism, and unlawful maritime transport of WMD and their delivery systems. 

Each treaty fills a gap in the existing international regime. 

In 2008, the Senate provided advice and consent to ratify all four 

of these treaties. The ratification is critical for several reasons. 

First, joining these treaties will enhance U.S. national security. 

Terrorism and weapons proliferation do not recognize international 

boundaries. To combat these threats effectively, we need not only 

a complete domestic legal framework but also a broad international 

legal framework to facilitate international cooperation. These treaties help achieve that goal. 

Second, the treaties bolster other U.S. Government counterterrorism and nonproliferation policy priorities such as the Global IniVerDate Aug 31 2005 14:59 Feb 09, 2012 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\100511\70575.000 HJUD1 PsN: DOUGA
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tiative to Combat Nuclear Terrorism, the Proliferation Security Initiative, and the Nuclear Security Summit. They also further the objectives and support implementation of international obligations 

like United Nations Security Council Resolution 1540. The SUA 

protocols in particular help to promote implementation of U.N. 

sanctions on Iran and North Korea. 

Third, U.S. ratification of these treaties will encourage widespread ratification and implementation by other countries. For 

many years, the United States, both the Congress and the executive branch, have been and will remain the international leader in 

counterterrorism and nonproliferation efforts; and passage of this 

legislation will reinforce our leadership. 

Mr. Chairman, earlier this year, my colleagues from Justice submitted to Congress the draft implementing legislation that will enable us to ratify these key treaties. I will let my colleague speak 

about the specific provisions within the draft legislation, but just 

two more brief points regarding the relationship between the proposed legislation and these treaties. 

First, the proposed implementing legislation will ensure that the 

U.S. complies with our obligations which we have assumed under 

each treaty to criminalize certain terrorism-related conduct, and it 

will establish criminal jurisdiction over that conduct. This will fill 

gaps in current U.S. law and facilitate international cooperation in 

the framework of these treaties. 

Second, and finally, the proposed legislation is modeled after legislation approved by Congress to implement earlier counterterrorism treaties. Most recently, in 2002, Congress passed legislation to 

implement treaties related to terrorist bombing and terrorist finance. The proposed legislation tracks that which has been successfully used in the past. 

Thank you. I look forward to your questions. 

[The prepared statement of Mr. Countryman follows:] 

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Mr. SENSENBRENNER. Thank you very much. 

Mr. Wiegmann. 

TESTIMONY OF BRAD WIEGMANN, DEPUTY ASSISTANT 

ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE 

Mr. WIEGMANN. Chairman Sensenbrenner, Ranking Member 

Scott, thank you for inviting me to testify today regarding two important legislative proposals: first, a proposal to implement two 


DOS-9.eps
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international conventions concerning nuclear terrorism and nuclear 

proliferation; second, a proposal to implement two international 

protocols on maritime terrorism and the maritime transportation of 

weapons of mass destruction. The Department of Justice strongly 

supports enactment of the legislation needed to implement these 

four treaties, which we believe strengthen national security and enhance multilateral efforts to combat terrorism and proliferation. 

In 2008, the Senate gave its advice and consent to ratification of 

all four treaties, but the United States will not be in a position to 

ratify them until the implementing legislation is in place. We submitted the necessary implementing legislation in 2008, again in 

2010, and most recently in April of this year. Today, I am going 

to briefly describe what the implementing legislation does, why it 

is necessary, and then I would be happy to take your questions. 

The four treaties, as Assistant Secretary Countryman has explained, are the Nuclear Terrorism Convention, an amendment to 

the Convention on the Physical Protection of Nuclear Material, and 

the two SUA protocols adopted in 2005, one on the safety of maritime navigation and the other on the safety of fixed platforms on 

the Continental Shelf. All four treaties establish specific criminal 

offenses related to terrorism and proliferation that state parties are 

obliged to include in their criminal codes. 

Our proposal would accomplish this by creating one new section 

in Title 18 of the U.S. Code and amending three others. The new 

section is 2332(i) governing acts of nuclear terrorism related to possession or use of a nuclear weapon or device or radioactive material, as well as sabotage of nuclear facilities. 

Section 831 of Title 18 would also be amended to cover nuclear 

smuggling; i.e., intentionally transporting nuclear material into or 

out of a country without lawful authority. 

The maritime terrorism offenses required by the two SUA protocols are reflected in amendments to 18 U.S.C. 2280 and 2281. As 

amended, those provisions would address terrorism involving ships 

and offshore platforms, transportation of weapons of mass destruction and related materials, and transportation of terrorist fugitives. 

Now, while the United States already has an array of criminal 

offenses in these areas, there are some gaps between what the 

treaties require and what U.S. law currently covers. These gaps are 

both substantive and jurisdictional, and they are the reason why 

this implementing legislation is needed. Although my time is limited today, I would like to mention briefly a few examples of such 

gaps, as I did in my written testimony. 

First, let’s consider the issue of sabotage of a nuclear facility. Existing U.S. law already prohibits a person from destroying or damaging a nuclear facility, but the current statute, 42 U.S.C. 2284, 

does not cover threats of sabotage as required by the nuclear treaties and as our proposed legislation would do. 

Second, 18 U.S.C. 2283 already prohibits the transport by vessel 

of biological agents, chemical weapons, and radioactive or nuclear 

material with the requisite intent. However, the SUA protocol and, 

hence, our legislative proposal also covers the maritime transport 

of equipment or technology that contributes to the design, manufacture, or delivery of a nuclear, biological, or chemical weapon. So 

there is the gap. 

16 

Third, each of the four treaties require us to be able to prosecute 

an individual who is found in the United States if we do not extradite him, regardless of the connection of the offense to the United 

States. The relevant provisions of existing U.S. law addressing illicit nuclear activities, such as 18 U.S.C. 2332(h) and 42 U.S.C. 

2284, lack this bound-in jurisdiction, and there would be no basis 

for us to assert jurisdiction over the required offenses in the absence of implementing legislation. 

Fourth, there is no real analog in U.S. law that addresses shipboard transportation of terrorist fugitives, particularly those who 

may not have committed offenses against U.S. law. 

So these are just a few examples of the types of gaps this legislation is designed to fill. 

In addition to addressing these gaps, the implementing legislation contains procedural and investigative provisions that, although 

not required by the treaties, will help ensure the United States is 

able to implement effectively U.S. law. Examples include designating these offenses as wiretap predicates and designating them 

as predicate crimes under the material support statute, 18 U.S.C. 

2339(a). 

Thank you again for inviting me to this hearing. I am happy to 

answer any questions you may have. 

[The prepared statement of Mr. Wiegmann follows:] 

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Mr. SENSENBRENNER. Thank you very much, Mr. Wiegmann. 

The Chair yields himself 5 minutes to begin the questioning, and 

I don’t think it will take that much. 

Mr. Wiegmann, you heard the litany of complaints that the 

Ranking Member gave during his opening statement. If we accepted all of these complaints, would we be in violation of the terms 

of the treaty? 

Mr. WIEGMANN. Well, we think that the package we put forward 

is necessary to implement the treaty, if that answers your question. 

Mr. SENSENBRENNER. No, it doesn’t. 


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Maybe you would like to send a letter to be included in the 

record when you review the complaints that Mr. Scott had in his 

opening statement on which would put us in violation of the treaty 

and which would not. 

Mr. WIEGMANN. Sure. 

Obviously, there are different ways of implementing the statute. 

We think the manner in which we crafted it is the simplest way. 

Just to give you a few reasons for that, the reason why we have 

implemented other previous terrorism-related treaties is putting all 

the legislation in one place as opposed to trying to put it in different scattered sections of the U.S. Code where it would be hard 

to figure out. 

Mr. SENSENBRENNER. Well, I support that, even though I got a 

lot of grief for moving Senator Leahy’s National Security Letters 

into the PATRIOT Act. People blamed me for the NSLs, rather 

than him. 

Mr. WIEGMANN. Right. And while there is some overlap, there is 

also some benefits in terms of extradition so we don’t confront 

cases where other countries can’t tell how we have implemented 

the treaty and we have dual criminality issues. 

So there is a variety of issues why we have crafted it the way 

we have. 

There certainly are gaps. As I mentioned in my opening remarks, 

we can’t rely on existing provisions, which I admit do cover some 

of this conduct, but they don’t cover all of it. So without the implementing legislation, we won’t be in a position to implement the 

treaties. 

Mr. SENSENBRENNER. Thank you very much. 

The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you. 

In follow-up to the question from the Chairman, are there provisions in the bill that are not necessary for ratification? 

Mr. WIEGMANN. Yes, there are. I am going to give you a couple 

of examples. 

One is a forfeiture provision that allows assets that are used in 

the commission of these offenses to be forfeited to the U.S. Government. That is something that we think is good practice. It is consistent with other parts of U.S. law where we do that. So we think 

it is appropriate here, but it is really a matter of domestic law and 

not required by the treaty. 

Mr. SCOTT. Can you give us a list for the record of the provisions 

that are not necessary? 

Mr. WIEGMANN. We could do that. 

Mr. SCOTT. Mr. Countryman, the vote in the Senate to ratify all 

four of these treaties, was there any opposition? 

Mr. COUNTRYMAN. I am not sure, Congressman. I will get you an 

answer to that as soon as possible. 

[The information referred to follows:] 

25 

Mr. SCOTT. I don’t suspect there was. I think we all want to ratify these, so that is not the question before us. The question is 

whether these proposals are necessary. 

The Attorney General’s statutory authority to board ships, the 

Coast Guard and the Navy have that authority and know how to 

do it. Does the Department of Justice have that expertise, Mr. 

Wiegmann? 

Mr. WIEGMANN. We have, I believe, conducted such boardings in 

the past, yes. 

Mr. SCOTT. And is this specific authority necessary? 

Mr. WIEGMANN. Again, not strictly necessary. We believe we already have the authority without the statute, but we think it is 

prudent to codify that to make it clear. 

Mr. SCOTT. You have in the bill preauthority to the President to 

enter into international agreements. Mr. Countryman, is there 

precedent for that? 

Mr. COUNTRYMAN. I am sorry, sir? 

Mr. SCOTT. The Safety of Maritime Navigation Act would give 

the President authority to conclude additional agreements with 

other countries to further the underlying treaties. Is it unusual for 

the President to have preapproval to enter into agreements? Is 

there precedent? 

Mr. COUNTRYMAN. My belief is that it is not, but if I could get 

a more complete answer to that question from our legal advisors, 

I will do that. 

Mr. WIEGMANN. I can help on that. 

There is a precedent for that in the counternarcotics context, and 

the provision that we have here is based on that context, whereby 

we do have similar agreements that the executive branch has with 

other countries to work on counternarcotics interdiction and so 

forth. So this is modeled on that provision. 

We do already have in the executive branch agreements under 

the Proliferation Security Initiative that we have been doing under 


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our own authority in the executive branch. But, again, we think it 

is prudent for Congress to endorse and kind of codify our authority 

to enter into those agreements. 

Mr. SCOTT. Thank you. 

One particular provision, the bill would enhance the application 

of the death penalty. Is that needed to ratify these treaties? 

Mr. WIEGMANN. Again, it is not required, but we think that the 

death penalty, for example, is already provided for in the existing 

SUA protocol offenses. So in the amendments to those offenses, 

where the conduct is similar and related, we think would be anomalous not to have the death penalty for the new offenses when we 

have it for the existing SUA offenses. 

Mr. SCOTT. But you don’t need it—— 

Mr. WIEGMANN. It is not required by the treaty. That is right. 

Mr. SCOTT. I think your answers to questions for the record will 

satisfy the other questions I have. Thank you. 

Mr. SENSENBRENNER. The gentlewoman from Florida, Mrs. 

Adams. 

Mrs. ADAMS. Thank you, Mr. Chair. 

Mr. Countryman, I was just looking at this. If I understand it 

correctly, one requirement is to criminalize the possession of radioactive material other than nuclear material. Could you explain and 

give an example of radioactive material that would fall under this 

category? Are you talking about a dirty bomb scenario? 

Mr. COUNTRYMAN. Yes, that is correct. There are a variety of 

uses for nuclear material in medicine, in industry. All of those require effective handling and disposal after they are done. These 

new requirements in the treaties impose additional obligations 

upon countries to protect that material so that it can’t fall into the 

hands of a terrorist who could use it to build a radiological dispersion device or dirty bomb. 

Mrs. ADAMS. Could you elaborate on how the SUA protocols 

would enhance overall the maritime security? 

Mr. COUNTRYMAN. I think, in brief, the amendments to the SUA 

protocols are intended to expand the protection offered. The first 

protocols essentially provided or created obligations to prevent 

criminal attacks against ships and fixed platforms. The recognition 

of what terrorists are capable of doing caused the international 

community to say we also need measures to prevent ships and 

fixed platforms from becoming the base or the platform for terrorist 

attacks. The specific measures that are included in the new protocols should enhance the security not only of the ships and platforms themselves but of anybody going near those ships and platforms. 

Mrs. ADAMS. This is my first year in Congress, so how many different attempts have been made by State and Justice to get support in Congress for implementing legislation, not counting this 

year, and what is the time span of these efforts? 

Mr. COUNTRYMAN. The implementing legislation was first proposed in 2008 following the Senate’s advice and consent on the 

treaties. It was resubmitted last year, in 2010, by the current Administration. And the most recent proposal you have before you 

closely tracks those previous proposals submitted. We look forward 

to working with Congress in these coming weeks so that this can 

27 

be the year that this legislation is passed and we are able to complete ratification of the treaties. 

Mrs. ADAMS. And if you would, I would like to ask you, aside 

from treaty ratification, what gaps are there in the current U.S. 

law that will be closed by implementing these treaties? 

Mr. WIEGMANN. Yes, I talked about some of those in my opening 

remarks. There are I would characterize it as modest differences 

between what existing U.S. law covers and what the treaties require us to cover. These can be jurisdictional in nature. 

For example, I mentioned the found-in jurisdiction. Again, each 

of the treaties sets up essentially an extradite or prosecute regime, 

wherein you either have to prosecute the individual or extradite 

him to a foreign country. Sometimes there will be an individual 

here who has violated maybe foreign law but hasn’t violated U.S. 

law, and his only connection to the U.S. Law would be that he is 

present in the United States. 

We are obliged to either extradite or prosecute under the treaties 

an individual who is here so he doesn’t have refuge in the United 

States, And other counties would have the same obligation to extradite or prosecute to us. The existing jurisdictional provisions 

don’t provide for found-in jurisdictions. 

That is an example. There are a bunch of different examples I 

could raise for you today. I mentioned some of them in my opening 

statement. But there are jurisdictional and substantive gaps. 

Mrs. ADAMS. Can you explain the significance of your proposal 

for granting the Attorney General foreign ship boarding authority 

under the SUA protocols? I mean, are these for consensual 

boardings or—— 

Mr. WIEGMANN. Not necessarily. This could include, again, law 

enforcement boarding a ship to investigate criminal activity with a 

search warrant, et cetera, to board a vessel in U.S. waters to, let’s 

say, search for a terrorist fugitive, or where we have reason to believe there is contraband, prohibited material on board. That is the 

type of thing we would be talking about. 

Mrs. ADAMS. And you would seek a warrant? 

Mr. WIEGMANN. That is right. 

Mrs. ADAMS. I yield back. 

Mr. SENSENBRENNER. The gentleman from Georgia, Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Under current law, the relevant statutes contain a bar to prosecution which prevents Federal prosecutions where the underlying 

conduct is related to a labor dispute and is a felony under State 

law. Your proposals would exempt the new criminal offenses from 

this bar to prosecution. Can both of you explain why? 

Mr. WIEGMANN. Yes, I can take that one. 

We could not envision any scenario under which one of these 

very serious terrorism offenses would be involved as part of a labor 

dispute. My understanding of the existing labor bar is that in the 

event of a strike or other similar activity the Federal Authorities 

would not prosecute the activity. It would be left to the States 

where they could criminalize the activity for violence or whatever 

occurred as part of a strike. 

We think that these terrorism offenses involving vessels and 

platforms and nuclear materials couldn’t be really part of a legitiVerDate Aug 31 2005 14:59 Feb 09, 2012 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\100511\70575.000 HJUD1 PsN: DOUGA
28 

mate labor dispute; and, in any event, that there is a strong Federal interest in having the Federal Government prosecute serious 

offenses like nuclear terrorism and so forth and not leave it to the 

States. So that is why we thought it appropriate not to have that 

bar applicable in this context. 

Mr. JOHNSON. Mr. Countryman? 

Mr. COUNTRYMAN. Nothing further to add, sir. 

Mr. JOHNSON. Why would we bar the bar for labor disputes or 

anything that could—in other words, you are telling me that you 

can foresee no dispute that would be a labor dispute, you can see 

no labor dispute that would generate a prosecution under the statute, and I am wondering what is the harm in letting the bar to 

prosecution in labor disputes remain? 

Mr. WIEGMANN. Again, in our view, in the extraordinarily unlikely event that one of these terrorism offenses would be part of 

a labor dispute, we think there is a sound interest in the Federal 

Government being able to investigate and prosecute that activity 

and not leaving it to the States. Because it is a Federal terrorism 

offense which is likely to be not something we would want to leave 

to State authorities. 

Mr. JOHNSON. All right, thank you. I yield back. 

Mr. SENSENBRENNER. The gentleman from South Carolina, Mr. 

Gowdy. 

Mr. GOWDY. Mr. Chairman, I want to thank you for calling this 

very important hearing. 

I want to thank both of our witnesses for sharing their insights 

and expertise. They have done a remarkable job of answering the 

questions that I had, Mr. Chairman; and I would yield back the 

balance of my time to the distinguished gentleman from Wisconsin 

for him to use as he sees fit. 

Mr. SENSENBRENNER. Well, the way the gentleman from Wisconsin will use it as he sees fit is by saying, without objection, the 

hearing is adjourned. 

Ms. JACKSON LEE. Mr. Chairman? 

Mr. SENSENBRENNER. Oh, the gentlewoman—I didn’t see or hear 

you. The gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

To the witnesses, we have several matters that we are engaged 

in, so let me start out with a question. 

Under the DOJ proposals, the Safety of Marine Navigation Act 

would give the Attorney General the general authority to board 

ships while investigating the violations of 18 U.S.C. 2280 and ultimately authorize the President to conclude additional relevant 

agreements with other nations to further the aims of the treaty. 

While this has precedence, it is unusual to grant the President 

carte blanche authority to enter into agreements without consulting the Senate. How would this change preserve the constitutional role of the Senate in giving its advice and consent? 

If both of you would answer those questions, I would appreciate 

it—answer that question. Thank you. 

Mr. COUNTRYMAN. Thank you very much, Congresswoman. 

There is precedent for authorization for the President, as we 

have just heard explained in counternarcotics legislation, to enter 

into these agreements to further the purposes of the treaty. We 

29 

have a range of agreements with various countries under the Proliferation Security Initiative in which the United States and partners pledge to work together to interdict weapons of mass destruction and their precursor materials that are bound either for states 

or for non-state actors, that is, terrorists. These agreements serve 

us well, and we consult and inform the Congress regularly about 

these agreements. 

I think I may want to ask my colleague from the Department of 

Justice to talk about the larger issue that you have raised, how it 

connects to the larger treaties and conventions that the United 

States enters into. 

Mr. WIEGMANN. Yes. There is a complex body of law about what 

things you have to do by treaty and what things you can do by executive agreement. It was included in the nature of these agreements, which are essentially law-enforcement-related agreements 

about ship boarding and so forth. That is both based on history and 

precedent and the relevant constitutional analysis that these are 

things that could be done by executive agreement. 

They are provided to the Senate and I think the House after they 

are entered into; and, as Assistant Secretary Countryman said, I 

think we do have more than a dozen at least, maybe several dozen 

of these agreements already. I am not aware of any objection that 

the Senate has asserted to the executive branch’s authority to enter 

into these agreements as executive agreements. Nonetheless, we 

think it is useful for Congress to be on record to kind of codify the 

executive branch’s authority to enter into these agreements. 

Again, it is not strictly necessary, but we think it is useful to 

have this type of provision so that we kind of have a clarity on the 

relevant authority there. 

Ms. JACKSON LEE. Do any of these agreements or present implementation reflect the different climate that we are now in with respect to the, some would say, proliferation of weapons of mass destruction of the different independent or smaller countries that now 

pose, to some extent, international threat? Does this have any impact on the wave of piracy, for example, which one doesn’t necessarily associate with weapons of mass destruction but certainly 

has troubled the waters in places beyond our immediate boundaries? To both of you. 

Mr. COUNTRYMAN. On the first point, it certainly is related to the 

overall climate, the overall trends that we see in attempts by both 

states and non-state actors to acquire weapons of mass destruction. 

What the convention seeks to do and what the implementing legislation seeks to do is to ensure that we are closing every legal gap 

that we believe that terrorists will exploit. 

I expect as both technology and ingenuity advances there will be 

further need in the future for additional changes in these protocols. 

These are not intended to address the phenomenon of piracy that 

is now a problem off the coast of Somalia. There may be a marginal 

effect, but that is not the intention of either the treaties or the legislation. 

Ms. JACKSON LEE. To the DOJ, does this help us move quickly 

under this structure of treaty, that we can implement or move 

more quickly than we might ordinarily need to do? 

30 

Mr. WIEGMANN. I think it does. I think in cases where we would 

be extraditing someone for one of these offenses, this will make it 

easier. It will make it so we make sure that our foreign partners 

have the same laws on the books that we have on the books, eliminate disputes as to whether, again, as I mentioned earlier, for dual 

criminality that that offense is extraditable and will enhance and 

speed that procession. 

There are also other provisions of the treaties that I think require other sorts of law enforcement cooperation. 

So, yes, we fully support the treaties for those reasons. 

Ms. JACKSON LEE. I yield back. 

Mr. SENSENBRENNER. The gentlewoman’s time has expired. 

Now, without objection, the Subcommittee stands adjourned. 

[Whereupon, at 10:40 a.m., the Subcommittee was adjourned.] 

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