During the Cold War, the focus of U.S. nuclear policy was deterring or retaliating in responseto a Soviet nuclear attack. U.S. nuclear forces were designed and sized for that contingency. Othercontingencies in which the United States might have used nuclear weapons were much more remote,and would have required far fewer nuclear weapons, than responding to a Soviet attack. Defenseplanners dealt with them, but as "lesser included cases" not requiring new weapons. The end of the Cold War led to a reduction of the U.S. nuclear weapons development effort. The first Bush Administration halted nuclear testing except for safety and reliability of the nuclearstockpile, canceled weapons that were under development, and withdrew most U.S. battlefieldnuclear weapons. Numbers of personnel in the nuclear weapons complex -- the facilities managedby the Department of Energy (DOE) to develop, test, manufacture, and maintain nuclear weapons-- dropped sharply. At congressional direction, the United States began a moratorium on nucleartesting in October 1992 that is still in effect and worked to negotiate the Comprehensive Test BanTreaty (CTBT), a ban on all nuclear explosions. Before the moratorium, the United States conductednuclear tests on an ongoing basis; with the end of testing, the Clinton Administration changed thetest readiness posture to 24 to 36 months. The George W. Bush Administration came into office with a different stance on nuclear weapons policy, which the September 11 attacks stiffened. It delivered a Nuclear Posture Review(NPR) to Congress in December 2001. (3) Thisclassified study, mandated by legislation, (4) spelledoutthe Administration's views on the role of nuclear weapons. A strategic relationship with Russiabased on the threat of mutual annihilation had become "very inappropriate," (5) according to J.D.Crouch, Assistant Secretary of Defense for International Security Policy, and the threat had becomemore diffuse. The NPR focused on nuclear capabilities deemed needed for various contingenciesrather than mainly to counter the Soviet nuclear threat. That is, the Administration perceived a widerrange of possible uses for nuclear weapons quite different than the U.S.-Soviet nuclear war scenariosthat dominated Cold War strategy. Crouch said, "The capabilities-based approach argues that theremay be multiple contingencies and new threats that we have to deal with. We're focusing on howwe will fight ... not who or when." (6) To support thisapproach, the NPR envisioned a "new triad" --strike forces (nuclear and nonnuclear); defenses; and an infrastructure better able to respond tomilitary needs -- tied together by command and control, intelligence, and planning. The goal wasto "assure allies and friends" that the United States had "credible non-nuclear and nuclear responseoptions," "dissuade competitors" through a "diverse portfolio of capabilities [that] denies payofffrom competition," "deter aggressors," and "defeat enemies." (7) The NPR called for retaining the capability to deter or respond to a variety of contingencies, and for retaining Cold War-era nuclear weapons, at lower levels, to do so. With the demise of the SovietUnion and the September 11 attacks, a subset of targets -- terrorist-related facilities, some of whichhad existed for decades -- assumed greater prominence. One example is hardened and deeplyburied facilities. Rogue (and many other) states have built such facilities, which might house leadersand key communications facilities. Another example is facilities -- some deeply buried, others not-- for producing or storing weapons of mass destruction (WMD). The end of the Cold War also led to changed constraints on use of nuclear weapons. In anuclear war with the Soviet Union, assuring the immediate destruction of thousands of targets of allsorts would have been critical to national survival. Reducing fallout and "collateral damage," ordamage to people and things that were not the intended targets, was secondary in importance toachieving required probabilities of damage on targets. Warheads were typically designed to achievethat primary goal. Now, nuclear weapons to hold at risk specific, limited targets in rogue states ina credible manner are judged to need several characteristics: They would need to be able to counter threats that rogue states might pose, such as hard and deeply buried facilities or production facilities for WMD. Weapons to attack buriedfacilities would have different characteristics than weapons to defeat chemical and biologicalagents. They would be better able to minimize ( not eliminate) collateral damage consistent with military objectives. While this has long been a goal of U.S. nuclear policy, earthpenetration and increased accuracy sharply reduce the yield needed to destroy a target, making itmore feasible to attain that goal. They would need to be available readily, if not immediately, because thespecific threat might become known with little warning. They could be few in number. While an all-out nuclear attack on the Soviet Union would have struck thousands of targets, the option of an attack on a rogue state might involvea handful of targets. According to the National Nuclear Security Administration (NNSA), (8) "The Administrationbelieves the broader range of capabilities of a nuclear stockpile with these weapons will serve as amore credible, and hence more effective, deterrent than the Cold War stockpile we have today. Thismore effective deterrent will make the use of nuclear weapons less likely." (9) Some critics believe that the only use for nuclear weapons should be to deter and, if necessary, respond to the use of nuclear weapons against the United States. (10) They oppose attempts to developnuclear weapons with lower yield and reduced collateral damage as blurring the distinction betweenconventional and nuclear weapons. Even U.S. use of a low-yield atomic bomb, they assert, wouldresult in a firestorm of protest and worldwide opprobrium. Further, they believe that the U.S. nuclear arsenal has long been sufficient against a range of threats. Hardened and deeply buried targets (HDBTs), for example, have existed for decades, yetthe first Bush Administration halted work on nuclear weapons then under development and haltednuclear testing except for safety and reliability, effectively bringing work on new weapon types toa close. Presumably that administration would not have taken these steps had it envisioned a needfor new weapon types. The United States needs the active support of the entire international community in the war against terrorism, many observers believe. Assistance may take many forms: providing informationto the CIA on suspicious individuals, safeguarding shipping containers, securing radioactivematerial, or closing bank accounts of suspected terrorists. Other nations will be more likely tocooperate on issues important to the United States, it is argued, if the United States cooperates withother nations on issues important to them. One such issue is nuclear nonproliferation. The UnitedStates pledged in the Nuclear Nonproliferation Treaty (Article VI) "to pursue negotiations in goodfaith on effective measures relating to cessation of the nuclear arms race at an early date and tonuclear disarmament." In addition, as an inducement in securing international support for extendingthe treaty indefinitely, the United States and other nuclear weapon states pledged in 1995 to supportthe CTBT. (11) They made a similar statement atthe 2000 NPT review conference. (12) Critics maintain that the Administration's nuclear initiatives are at odds with these pledges. They argue that developing new or modified weapons runs counter to the NPT pledge and that suchweapons will ultimately require nuclear testing to ensure that they work. Reducing the time toconduct a nuclear test supports a future decision to test and, to the critics, implies an intent to test. These positions may harm U.S. security by undermining efforts to make worldwide cooperation onnonproliferation of nuclear and other WMD more effective. Even if some steps might be innocuousby themselves, critics believe that many around the world will see the confluence of them as piecesof a single policy and will infer that the United States is now much more willing to consider usingnuclear weapons. As an example of international concern over the new U.S. policies, the foreignministers of the New Agenda Coalition (Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa,and Sweden) issued a statement that said in part, 4. The Ministers stressed that each article of the NPT is binding on the respective States parties, at all times and in all circumstances... 7. The Ministers reiterated their deep concern at emerging approaches to the broader role of nuclear weapons as part of security strategies, includingrationalizations for the use of, and the development of new types of nuclearweapons. (13) These positions may undermine U.S. security, critics fear, by spurring nations that might be targets of a U.S. nuclear attack to step up their efforts to acquire nuclear weapons. Of the three"Axis of Evil" nations, Iraq, the first target of a U.S. attack, did not have nuclear weapons as far asis currently known. Having nuclear weapons to deter the United States may be a consideration forNorth Korea and Iran, both of which apparently have active programs to produce fissile material. North Korea has stated that it has several nuclear weapons; while Iran has declared that its nuclearprogram is for peaceful purposes, few in the United States believe that assertion. Even in military terms, critics argue, nuclear use would offer marginal to negative value. Deeply buried targets could be defeated (not necessarily destroyed) with conventional weapons,destruction of entrances and air shafts, or demolition by special forces. The effectiveness oflow-yield nuclear weapons for destroying biological or chemical agents is uncertain, as discussedbelow, and intelligence might be unable to locate targets in underground complexes, as recent effortsto find Iraqi WMD showed, rendering nuclear weapons of any yield of little use. Nations couldcounter earth penetrators by burying facilities more deeply. Even low-yield or earth penetratingweapons would throw a large amount of radioactive debris into the atmosphere. Substitutingradioactive materials for biological or chemical agents may offer little advantage to the localpopulation or U.S. troops. A provision in the FY1994 National Defense Authorization Act barred R&D that could lead to production by the United States of a nuclear weapon of less than 5 kilotons (kt) (14) that had notentered production by November 1993. In its FY2004 legislative proposals, the Administrationasked Congress to rescind this provision on grounds that it undercut U.S. ability both to exploretechnical options that could deter or respond to emerging threats, and to revitalize the nuclearweapons enterprise. This provision is often referred to as the Spratt-Furse provision, after itslegislative authors, Representatives John Spratt, Jr., and Elizabeth Furse, or as the PLYWDprovision, for Precision Low-Yield Weapon Design. The Armed Services Committees consideredthe proposed rescission; the Appropriations Committees did not do so because it involved no money. The FY2004 NDAA, Section 3116, repealed the Spratt-Furse provision but (1) made clear that therepeal did not "authoriz[e] the testing, acquisition, or deployment of a low-yield nuclear weapon"and (2) barred the Secretary of Energy from beginning engineering development or subsequentphases of work on a low-yield weapon without specific congressional authorization. With theprovision lifted, there is no parallel request for FY2005. Military Utility of 5-kt Weapons. The debate over the Spratt-Furse provision treated 5 kt as critical because that was the threshold in the law. Those who would lift the ban argued that the ban made it difficult to train weapon designers andimpossible to develop essential new weapons; their opponents were concerned that lifting the banwould signal U.S. interest in developing capabilities that would make the use of nuclear weaponsmore likely. Yet the threshold was of only slight relevance to the military or the weapons labsbecause very low yield nuclear weapons have uncertain military utility. Substantial advances wouldbe needed in the understanding of low-yield weapon effects to assess the military utility andcollateral damage of such weapons. Military utility derives from nuclear-weapon effects that are prompt and that can be measured with reasonable precision. Damage from the blast wave falls into this category; fallout andsecondary fires (e.g., fuel set afire) do not. For a 500-kt weapon, the blast effects are highlypredictable: almost anything on the Earth's surface over a large, known area will be destroyed. (Forcomparison, the Hiroshima bomb had a yield of 15 kt.) At the other end of the scale, the blast effectsof a 500-pound conventional bomb are strongly influenced by accuracy, height of burst, localfeatures, etc. For example, a hill or building can block or redirect the blast wave. Such factors alsoshape the effects of a low-yield nuclear weapon, and their influence increases as yield decreases. Modeling such factors is more complicated than for high-yield weapons, has been done to a muchlesser extent, and depends more on unknown details such as a building's construction. It may bethat detailed engineering studies and computer models of the prompt effects of existing low-yieldnuclear weapons could provide as much military value as designing new low-yield weapons. A 1979 report by the Office of Technology Assessment elaborated on the problem of uncertain weapon effects in discussing a 1-kt terrorist nuclear weapon detonated at ground level in a city: the highly built-up urban structure in which the weapon is placed will significantly modify the resulting nuclear environment. This occurs when the lethalrange of effects shrink to such an extent that they are comparable to the size of urban structures. Itis indeed reasonable to expect that the blast effects of a small weapon ... will be severely influencedby nearby structures having comparable dimensions. Preliminary calculations have confirmed this.... In summary, the ranges of nuclear effects from a low-yield explosion in the confined space of anurban environment will differ significantly from large yield effects, but in ways that are very difficultto estimate. (15) If the Warsaw Pact had invaded Western Europe during the Cold War, such uncertainties of low-yield weapons would have been immaterial for some missions (an atomic demolition munitioncould destroy a bridge, and an artillery-fired atomic projectile could destroy troop concentrations,more reliably than conventional munitions) and in some situations (as a last resort to keep front-linetroops from being overrun). Now, though, extreme accuracy may enable conventional weapons todestroy small targets, and massive conventional bombing can attack troop concentrations. At thesame time, this same accuracy may give low-yield nuclear weapons new military missions byenabling them to destroy targets that in the past would have required much larger weapons. On theother hand, low-yield weapons face uncertainties that render them of questionable value in goingafter key targets, such as buried facilities for which details of the structure and its overlying earth androck are poorly known. This uncertainty increases as yield drops. For reasons such as these, GeorgeMiller, formerly Associate Director for Defense and Nuclear Technologies at Lawrence LivermoreNational Laboratory, observed, "The vast majority of the 'low yield' concepts that would providesubstantial reductions in collateral damage have yields greater than 5 kt. Concepts in the less than5 kt regime are at an early R&D stage." (16) The United States has had many low-yield weapons in the stockpile for decades. (17) In the wakeof the 1991 Persian Gulf War, the U.S. military became more interested in them for attackingunderground structures. One news report stated that "[p]enetrating Saddam's hardened bunkersproved to be one of the most daunting tasks that faced the Air Force." (18) In late 1991, the Air Forcereportedly asked Los Alamos National Laboratory to study a very low yield warhead that coulddestroy underground bunkers. (19) A 1992 LawrenceLivermore National Laboratory journal stated,"Several possibilities for new types of weapons are being evaluated for prototype development. These include ... low-yield earth-penetrating warheads for attacking underground command postswith minimum collateral damage..." (20) DOE begana concept definition study for an AircraftDelivered Precision Low-Yield Weapon in FY1992, which it planned to continue in FY1993 andFY1994. (21) At the same time, many in Congress and elsewhere sought to restrain U.S. nuclear weapons development. Legislation mandated a U.S. nuclear testing moratorium, which started in October1992 and continues to the present, and directed the President to provide a plan for achieving amultilateral CTBT by September 30, 1996. (22) Preparations were underway in the U.N. in 1993 tobegin CTBT negotiations in 1994. The NPT review and extension conference, which would decidewhether to extend the treaty indefinitely, was planned for April 1995. Some saw testing, andweapons development that could lead to testing, as unhelpful to these efforts. In 1993, the House Armed Services Committee, concerned over efforts by DOE to study low-yield nuclear weapons, included a provision barring R&D on these weapons in its version of theFY1994 National Defense Authorization Act, H.R. 2401 . The committee's reportstated: The committee is aware of recent efforts by the department [of Energy] to perform concept and feasibility studies for designing very low yieldnuclear weapons. The committee opposes these efforts. Very low yield nuclear warheads threatento blur the distinction between conventional and nuclear conflict, and could thus increase the chancesof nuclear weapons use by another nation. In addition, the committee believes that the developmentof very low yield nuclear weapons undermines U.S. efforts to discourage nuclear weaponsdevelopment by other nations, and would undercut U.S. efforts to negotiate an extension of theNon-Proliferation Treaty or a Comprehensive Test Ban. Finally, the utility of very low yield nuclearweapons is questionable given the increasing effectiveness and availability of precision guidedconventional munitions. The committee therefore recommends a provision (sec. 3105 (e)) that would direct the Secretary of Energy to discontinue the ongoing concept design workwithin the department's nuclear weapons laboratories and to refrain from any future feasibility,engineering, development, or production work associated with very low yield nuclear weapons. Thecommittee further directs the Secretary to work with the President, and other interested agencies indiscouraging the development of similar weapons in othercountries. (23) The conference report summarized the House position, noted that the Senate bill had no similar provision, and stated: The Senate recedes with an amendment that would clarify that the prohibition applies to activities that could lead to production of new low-yieldweapons. While the conferees agree that the provision is intended to prohibit research anddevelopment geared toward the production of any low-yield nuclear weapons by the United States,the conferees recognize that there are instances where the Department of Energy may need toconduct research on these types of weapons for other purposes. This would include research, in theinterest of counter-proliferation, on the designs of low-yield weapons as a way to: (1) understandothers' activities, including potential terrorist threats; (2) provide information for export controlactivities; and (3) understand the potential damage that could be inflicted by the use of these typesof weapons. In addition, the conferees agree that nothing in this section would prohibit theDepartment of Energy from performing the research and development necessary for modificationsto existing weapons in order to address safety or reliabilityproblems. The conferees direct the Secretary to work with the President and interested agencies in discouraging the development of similar weapons in other countries. (24) The final legislation ( P.L. 103-160 , November 30, 1993, 107 stat 1946) follows: SEC. 3136. PROHIBITION ON RESEARCH AND DEVELOPMENT OF LOW-YIELD NUCLEAR WEAPONS. (a) UNITED STATES POLICY- It shall be the policy of the United States not to conduct research and development which could lead to the production by the United Statesof a new low-yield nuclear weapon, including a precision low-yield warhead. (b) LIMITATION- The Secretary of Energy may not conduct, or provide for the conduct of, research and development which could lead to the production by the UnitedStates of a low-yield nuclear weapon which, as of the date of the enactment of this act, hasnot entered production. (c) EFFECT ON OTHER RESEARCH AND DEVELOPMENT- Nothing in this section shall prohibit the Secretary of Energy from conducting, or providing for theconduct of, research and development necessary -- (1) to design a testing device that has a yield of less than five kilotons; (2) to modify an existing weapon for the purpose of addressing safety and reliability concerns; or (3) to address proliferation concerns. (d) DEFINITION- In this section, the term `low-yield nuclear weapon' means a nuclear weapon that has a yield of less than five kilotons. Several years later, the Office of Defense Programs asked DOE's General Counsel about the legal meaning of this prohibition. In a memorandum of March 1999, she concluded as follows: Section 3136 would appear to prohibit the Department from taking or supporting any action that could result in producing a weapon with a yield of less than5 kilotons, unless one of the following four exemptions applies: (1) the activities are related to aweapon that entered production prior to December , 1993; (2) the activities are supporting designof a testing device; (3) the activities are directed to modifying an existing weapon to address safetyand reliability concerns; or (4) the activities are supporting counterproliferationwork. As you can see, the question of legality on any course of action involving low-yield nuclear weapons is highly factdependent. (25) In its report on the FY2001 defense authorization bill, S. 2549 , the Senate Armed Services Committee made clear the issue prompting DOE's request to the General Counsel andsought to redress that issue legislatively: The committee recommends a provision that would require the Secretaries of Defense and Energy to assess requirements and options for defeatinghardened and deeply buried targets. The provision would expressly authorize the Department ofEnergy (DOE) to conduct any limited research and development that may be necessary to completesuch assessments. The committee notes that a recent legal interpretation of existing law raised questions regarding whether DOE could participate in or otherwise supportcertain Department of Defense (DOD) studies and options assessments for defeating hardened anddeeply buried targets. This provision removes any uncertainty and expressly allows DOE to assistthe DOD with a review of these targets and the options for defeating such targets. The committeebelieves that DOE should provide information and all other assistance required to help DOD makeinformed decisions on whether: (1) to proceed with a new method of defeating hardened and deeplyburied targets and; (2) to seek any necessary modifications to existinglaw. The committee is concerned that the ability to defeat hardened and deeply buried targets will continue to be a significant challenge for the foreseeablefuture. (26) Although the House bill did not include a similar provision, the conference bill, H.R. 4205 , did. Section 1044, "Report on the defeat of hardened and deeply buriedtargets," required the Secretary of Defense, in conjunction with the Secretary of Energy, to conducta study on this topic, due by July 1, 2001. (27) Thatsection directed that the study review U.S.requirements to defeat such targets "and stockpiles of chemical and biological agents and relatedcapabilities," review plans to meet the requirements and determine the adequacy of the plans,"identify potential future hardened and deeply buried targets," determine what is needed to defeatthem and to defeat stockpiles of chemical and biological agents, assess options to defeat such targets,and "determine the capability and cost of each option..." Section 1044 gave the Secretaries authorityto "conduct any limited research and development that may be necessary to perform thoseassessments." Further, "The conferees believe that DOE should provide information and otherassistance required to help DOD make informed decisions on whether: (1) to proceed with a newmethod of defeating hardened and deeply buried targets; and (2) to seek any necessary modificationsto existing law." (28) The DOD-DOE report required by Section 1044, dated July 2001, contained a rationale for low-yield nuclear earth penetrator weapons. (29) It stressed the problem that hardened and deeplyburied targets (HDBTs) posed to the United States: Our potential adversary's weapons of mass destruction (WMD), long-range missiles, modern air defenses, most sophisticated command and controlsystems, national leadership in wartime, and a variety of tactical arms are increasingly concealed andprotected by networks of hard and deeply buried facilities. If the United States does not have themeans to defeat these facilities and the threatening assets they protect, adversaries may perceive thatthey have a sanctuary from which to coerce or attack the United States, its allies, or its coalitionpartners with threats much more powerful than in past conflicts. (p.3) It discussed the potential problem posed by buried facilities containing chemical or biological weapons (CBW): Ordnance employing fragmentation and blast effects will not accomplish this objective [destroying agents within munitions or containers] and may furtherworsen the situation by releasing agents into the atmosphere and surrounding environment. In somesituations, there may be a need for multiple types of payloads to accomplish several objectives. Forexample, in the case of CBW located within a hardened facility, the goals might be in situ neutralization of the agents plus access-denial that prevents adversaries from recovering and usingagents or production equipment not destroyed. This class of problems is the most vexing challengeto defeat of HDBTs. (p. 14) While the DOD-DOE report focused on conventional weapons, special operations forces, intelligence, etc., for defeating HDBTs, it also discussed the potential value of nuclear weapons forthis mission, especially low-yield penetrators: DoD and DOE have completed initial studies on how existing nuclear weapons can be modified to defeat those HDBTs that cannot be held at risk withconventional high-explosive weapons or current nuclear weapons. (p.4) ... we also must prepare for those unique and emerging strategic threats that are critical and well protected ... This will require additional investment inintelligence, special weapons, and counter-WMD capabilities, including nuclear weapons. (p. 6) Nuclear weapons have a unique ability to destroy bothagent containers and CBW agents. Lethality is optimized if the fireball is proximate to the target. This requires high accuracy; for buried targets, it also may require a penetrating weapon system. Given improved accuracy and the ability to penetrate the material layers overlying a facility, it ispossible to employ a much lower-yield weapon to achieve the needed neutralization. The ability touse a lower yield would reduce weapon-produced collateral effects. The current nuclear weaponsstockpile, while possessing some limited ground penetration capability and lower yield options (notyet certified), was not developed with this mission in mind. (p.19) Despite the above, the DOD-DOE report ended by noting, "DoD has not defined a requirement for a nuclear weapon for WMD Agent Defeat missions." (p. 24) The FY2002 National Defense Authorization Act, and its predecessor versions in House and Senate, did not address the issue of low-yield nuclear weapons or nuclear earth penetrators. As noted, the Administration completed its congressionally-mandated Nuclear Posture Review (NPR) in December 2001. A text purported to consist of leaked excerpts of the NPR surfaced inMarch 2002 and was widely quoted in the press. (30) Among other things, this text stated that,compared to a surface-burst nuclear weapon of a given yield, a nuclear earth penetrator weaponcould destroy many buried facilities with much lower yield and thereby reduce fallout by a factor of10 to 20. (31) In action on the FY2003 National Defense Authorization Act, Representative Weldon initially offered an amendment on the House floor that, among other things, would have repealed theSpratt-Furse provision upon presidential certification that another nation conducted a nuclear testfor new or improved nuclear weapons, or that another nation was developing, in undergroundfacilities, WMD that could pose an imminent risk to the United States, or that the repeal "is in thenational security interest of the United States." (32) Before the amendment was debated,Representatives Spratt and Weldon subsequently modified it. While the 1993 provision barred"research and development which could lead to the production by the United States of a newlow-yield nuclear weapon," the modification barred such development but not research, and clarified"development" as follows: "The term 'development' does not include concept definition studies,feasibility studies, or detailed engineering design work." (33) The amendment passed, 362-53. TheSenate bill did not have a similar provision and the House provision was dropped in conference. A description of the "phases" of weapon development is needed to understand the subsequent discussion of legislation on low-yield R&D and the other three nuclear initiatives. The developmentof new nuclear weapons proceeds through a series of defined "phases." DOD and the AtomicEnergy Commission, a predecessor of DOE, entered an agreement on March 21, 1953, defining thesephases as follows: Phase 1, weapon conception; phase 2, program study; phase 2a, design definitionand cost study; phase 3, development engineering; phase 4, production engineering; phase 5, firstproduction; phase 6, quantity production and stockpile; and phase 7, retirement. (34) (Note that phase2 involves some prototype and subsystem testing as well as paper and computer studies.) The keydividing line is between phase 2a (design definition) and phase 3 (full-scale development). In phase2a, Los Alamos and Lawrence Livermore National Laboratories, the two laboratories that design thenuclear explosive components of nuclear weapons, would generate one or more designs each for aparticular warhead; personnel from Sandia National Laboratories, which design nonnuclearcomponents of a warhead, would participate in the two design teams. At the end of phase 2a, oneoption and laboratory would be selected. (No new warhead has been designed since the 1980s.) Inphases 3 and 4, which now would occur concurrently, the phase 2a design would be turned into adetailed design for a producible weapon through computer simulation, nuclear and nonnucleartesting, etc. For alterations and modifications of existing weapons, those in phase 6, the phasestructure above is repeated as the "X" in "phase 6.X," though with some different names: phase 6.1,concept assessment; phase 6.2, feasibility study and option down-select; phase 6.2a, design definitionand cost study; phase 3, development engineering; phase 4, production engineering; phase 6.5, firstproduction; and phase 6.6, full-scale production. (35) With that as background, Section 3143 of P.L. 107-314 , FY2003 National Defense Authorization Act, "Requirements for Specific Request for New or Modified Nuclear Weapons,"required DOE (1) to have a single line item for all funds requested for R&D that could lead to U.S.production of a new nuclear weapon in phase 1, 2, or 2a, or a modified nuclear weapon in phase 6.1,6.2, or 6.2a, or concept work occurring before phase 1 or 6.1; and (2) to request funds for eachweapon activity in phase 3 or 6.3 or higher as a separate line item. Further, the legislation provideda clear definition of a key term: (3) The term "new nuclear weapon" means a nuclear weapon that contains a pit or canned subassembly, either of which is neither -- (A) in the nuclear weapons stockpile on the date of the enactment of this act; nor (B) in production as of that date. (36) While the move from phase 2a or 6.2a to phase 3 or 6.3 typically involves a large increase in cost, requiring each weapon in phase 3 or 6.3 to have its own line item enhances the visibility ofthese programs and prevents them from being lumped with other programs, aiding congressionaloversight and control of the process. The explanatory language of this section of the conference report referenced the Spratt-Furse provision: "The conferees agree that nothing in this section may be construed to modify, repeal, orin any way affect the provisions of section 3136 of the National Defense Authorization Act for FiscalYear 1994 ...." (37) The Administration, in DOD legislative proposals for FY2004, requests repeal of the Spratt-Furse provision restricting low-yield nuclear weapon R&D. Its draft language states simply,"Section 3136 of the National Defense Authorization Act for Fiscal Year 1994 ( P.L. 103-160 ; 107Stat. 1946) is repealed." (38) The Administrationoffered the following rationale: Section 3136, the so-called PLYWD legislation, prohibits the Secretary of Energy from conducting any research and development which couldpotentially lead to the production by the United States of a new low-yield nuclear weapon, includinga precision low yield warhead. This legislation has negatively affected U.S. Government efforts to support the national strategy to counter WMD and undercuts efforts that couldstrengthen our ability to deter, or respond to, new or emergingthreats. A revitalized nuclear weapons advanced concepts effort is essential to: (1) train the next generation of nuclear weapons scientists and engineers; and (2)restore a nuclear weapons enterprise able to respond rapidly and decisively to changes in theinternational security environment or unforeseen technical problems in the stockpile. PLYWD hashad a "chilling effect" on this effort by impeding the ability of our scientists and engineers to explorethe full range of technical options. It does not simply prohibit research on new, low-yield warheads,but prohibits any activities "which could potentially lead to production by the United States" of sucha warhead. It is prudent national security policy not to foreclose exploration of technical options that could strengthen our ability to deter, or respond to, new oremerging threats. In this regard, the Congressionally-mandated Nuclear Posture Review urgedexploration of weapons concepts that could offer greater capabilities for precision, earth penetration(to hold at risk deeply buried and hardened bunkers), defeat of chemical and biological agents, andreduced collateral damage. The PLYWD legislation impedes this effort. Repeal of PLYWD, however, falls far short of committing the United States to developing,producing, and deploying new, low-yield warheads. Such warhead concepts could not proceed tofull-scale development, much less production and deployment, unless Congress authorizes andappropriates the substantial funds required to do this. (39) The Senate bill, S. 1050 , as reported from the Armed Services Committee, contained this repeal (Section 3131) and added that nothing in the repeal "shall be construed asauthorizing the testing, acquisition, or deployment of a low-yield nuclear weapon." On May 20, theSenate considered an amendment by Senators Feinstein and Kennedy to rescind Section 3131. (40) Thedebate, in which more than 20 Senators participated, aroused considerable interest. SenatorFeinstein argued that repealing the low-yield ban "will ... begin a new era of nuclear proliferation." (41) Senator Durbin said, "This bill is about to discard 50 years of American foreign policy and 50 yearsof American nuclear policy." (42) Senator Kyl said,"The reason low-yield weapons research is beingsought is because the world has changed since the time we developed these huge megaton nuclearweapons ... the United States would prefer, if it had to, to use a much smaller weapon, a low-yieldweapon." (43) The amendment was tabled, 51-43. (44) When that amendment failed, Senator Jack Reedoffered an amendment to modify Section 3131 by replacing "research and development" with"development engineering." Thus, the amendment would have barred development engineering thatcould lead to U.S. production of a new nuclear warhead. Senator Warner offered an amendment tothe Reed amendment, replacing the latter with the original committee amendment and adding asection, "The Secretary of Energy may not commence the engineering development phase or anysubsequent phase of a low-yield nuclear weapon unless specifically authorized by Congress." (45) Thedifference between the two amendments was summed up as follows: Mr. Reed. Essentially, the functional difference between my amendment and your second degree is, at this point, under my amendment theadministration would have to come and lift the prohibition; under your amendment, they would haveto come and get an authorization. I think that is the functionaldifference. Mr. Warner. I think the Senator is correct. (46) On May 21, the Senate agreed to the Warner amendment, 59-38, and agreed to the Reed amendment, as amended by the Warner amendment, 96-0. Subsequently, on May 22, the Senatepassed S. 1050 , as amended, 98-1, and on June 4 passed H.R. 1588 , theHouse version of the National Defense Authorization Act for FY2004, striking all after the enactingclause and inserting the text of S. 1050 . The House Armed Services Committee tackled the same subject. As reported by the committee, Section 3111 of H.R. 1588 modified the low-yield provision substantiallyfrom the language the Administration had requested, adopting by voice vote an amendment byRepresentative Spratt. (47) The FY1994 provisionis as follows: (b) LIMITATION- The Secretary of Energy may not conduct, or provide for the conduct of, research and development which could lead to the production by the United States ofa low-yield nuclear weapon which, as of the date of the enactment of this act, has notentered production. Section 3111 would revise that provision: (b) LIMITATION- The Secretary of Energy may not develop, produce, or provide for the development or production of a low-yield nuclear weapon which, as of November 30,1993, has not entered production. ... (d) Effect on Studies and Design Work -- Nothing in this section shall prohibit the Secretary of Energy from conducting, or providing for the conduct of, concept definitionstudies, feasibility studies, or detailed engineering design work. The amendment apparently drew the line separating permitted from prohibited activities between phase 2a/6.2a and phase 3/6.3. The explanatory statement of the committee was somewhatclearer on this point: "The amendment would maintain the prohibition on development of newnuclear weapons with yields less than five kilotons, but would allow research on such weapons,including concept definition studies, feasibility studies, and detailed engineering design." (48) Astatement of additional views by Representative Spratt and 24 other Democrats, in the committee'sreport on the bill, elaborated: "the amendment permits research of such [sub-5-kt] weapons, itprohibits development engineering (referred to as Phase 6.3 activities by the Department of Energy)and later stages of development." (49) The amendment is more permissive than the original provision but less so than the one the Administration had proposed, apparently permitting work through phase 2a/6.2a but barringsubsequent development. It also narrows the potentially broad applicability of the phrase "whichcould lead to the production." That phrase raises the prospect that a paper study, a computer model,or a metallurgical experiment might be illegal if it could somehow be construed as leading toproduction. With the new language, that possibility would no longer be enough to block such work;rather, the test would be whether the development or production is of an actual low-yield weapon.The rule for H.R. 1588 did not provide for amendments to this provision. The Housepassed the bill, as amended, on May 22, 361-68. Several aspects of the low-yield ban were potentially at issue in conference. Both bills sought to define which activities were permitted and which were barred in order to remove an ambiguityof the original legislation: the issue of R&D that "could lead to the production by the United Statesof a new low-yield nuclear weapon, including a precision low-yield warhead." They approached theproblem differently, though. The Senate would have rescinded the low-yield R&D provision whilebarring "engineering development" or subsequent phases of a low-yield weapon withoutcongressional approval; the House would have retained the low-yield ban while modifying itsubstantially. The Senate bill, as amended, clearly drew the line separating permitted activity andactivity requiring explicit congressional authorization between phase 2a (or 6.2a) and phase 3 (or6.3). The House language appeared to do the same thing, but it was not completely clear that"develop" and "detailed engineering design work" referred to that same line. It was unclear whetherthere were a difference between the Senate's requirement for "explicit authorization" of engineeringdevelopment or beyond and the requirement in Section 3143 of P.L. 107-314 for DOE to include aline-item request for each new or modified nuclear weapon in phase 3 or 6.3 or beyond. A seniorNNSA staff member held that while committee or conference report language would typicallycomment on weapons in phase 3 or 6.3 or beyond, NNSA would view authorization andappropriations of funds for such weapons, typically hundreds of millions of dollars, as constitutingthe "explicit authorization" that the Senate's bill required, but that in any event it would be up toCongress to define what form of authorization sufficed. (50) The House agreed to the conference report, (51) 362-40, on November 7, 2003. The Senate agreedto the conference report, 95-3, on November 12. The President signed the measure into law ( P.L.108-136 ) on November 24. The conference bill, section 3116, adopted the Senate provision. Section 3116 repealed the Spratt-Furse provision, stated that the repeal shall not "be construed as authorizing the testing,acquisition, or deployment of a low-yield nuclear weapon," and barred the Secretary of Energy frombeginning engineering development, or subsequent phases, of work on a low-yield weapon withoutspecific congressional authorization. The bill further required a report by the Secretaries of State,Defense, and Energy assessing whether or not the repeal of Spratt-Furse "will affect the ability ofthe United States to achieve its nonproliferation objectives and whether or not any changes inprograms and activities would be required to achieve those objectives." The legislation thus clearly delineates what R&D on low-yield nuclear weapons is prohibited, eliminating a point of confusion in the original provision, and sets the requirement (congressionalapproval) for overriding that prohibition. At the same time, the requirement for an assessment of"any changes in programs and activities" needed to achieve U.S. nonproliferation objectives isunclear both in terms of what those objectives are and how broadly the phrase "any changes" is tobe interpreted. Such changes could range from developing new low-yield nuclear weapons, totraining more specialists in Arabic, to strengthening the International Atomic Energy Agency. Andwhat definition of nonproliferation objectives is the report to use? (52) It appears that low-yield R&D will be a much less salient issue in the FY2005 cycle than in the previous one. Lifting the Spratt-Furse provision was a policy issue that was resolved last year, andnot a budget issue. Some critics expressed concern that NNSA would use the lifting of the provisionto develop new weapons. In an interview of December 2003, however, NNSA Administrator LintonBrooks stated, "there is no list of low-yield weapons we're thirsting to develop -- that's amisconception." (53) An NNSA manager withresponsibilities in this area elaborated in March 2004: We have no requirements from DoD for low yield weapon research. ... We definitely do not have funds identified specifically for that area of research.... We may get other requests between now and the start of FY2005. One or more could be forconcepts that would delve into the low yield area. So I can't and won't claim that none will be donein FY2005, just that as of today, we aren't planning any. (54) Would lifting the ban lead to acquisition and use of nuclear weapons? Supporters of the ban argue that new weapons would make acquisitionand use of nuclear weapons more likely. Any new weapon would broaden the President's range ofoptions. A President might find options made available by current nuclear weapons to beunacceptable, but a new weapon might offer a tradeoff between costs and benefits that tilts in favorof nuclear use. Critics further believe that the Administration is seeking to lift the ban with theintention of building low-yield weapons. Senator Feinstein asked Secretary of Defense DonaldRumsfeld about it, "and he said it's just a study .... They did the same thing with the nuclear posturereview: Oh, it's just an intellectual exercise. I don't believe either of those, not one whit, and I thinkthere's a very clear march on to develop these weapons." (55) Critics further argue that even researchon low-yield weapons would lead down a slippery slope to testing, production, deployment, and use. Senator Feinstein said, "The repeal of Spratt-Furse opens the door for America to begin to developnuclear weapons again." (56) Senator Biden saidthat many supporters of the ban are concerned because"we believe very much that if one of these weapons ... is developed, it will ultimately be fielded,"and that low-yield weapons send a "dangerous signal ... to other countries, whether intentional or not,that we intend to fight a nuclear war." (57) SenatorKennedy said, "a mini-nuke is still a nuke. ... If webuild it, we will use it. ... it is a one-way street that can lead only to nuclear war." (58) Critics preferto stop the momentum in this direction at the earliest opportunity. Those who would lift the ban see "lowering the nuclear threshold" and a "slippery slope to nuclear use" as a misreading of U.S. policy and practice. Congress will decide if a weapon is tomove to phase 3/6.3 through the authorization and appropriations process; approval would be farfrom automatic. The provision repealing Spratt-Furse in the Senate Armed Services Committee'sbill ( S. 1050 , Sec. 3131) stated explicitly, "Nothing in the repeal ... shall be construedas authorizing the testing, acquisition, or deployment of low-yield nuclear weapons." Senator Kylstated, "this is not an authorization. All we are doing is removing a self-imposed restriction onthinking about this, on doing research." (59) Further, they note, use of nuclear weapons has always been a presidential decision, and one that Presidents treat as arguably the most weighty decision that they can make. Having more weapons,or low-yield weapons, does not mean that the United States will use them. As Senator Warnerobserved, the threshold for using nuclear weapons remains very high indeed. ... the United States had a large number of low-yield nuclear weapons in our inventoryduring the '50s, '60s, and '70s which have now been removed from the inventory. During each ofthese decades there were significant national security challenges to the United States. None of thosechallenges came close to reaching the nuclear threshold ... (60) Would low-yield weapons make nuclear proliferation more likely? Those who would retain the ban assert that resuming low-yield R&D couldspur nuclear proliferation. If the world's only superpower requires for its security new types ofnuclear weapons in addition to the ones it already has, then this implies that other nations neednuclear weapons for their security as well. Building weapons that might be used against rogue stateswill not deter these states from building nuclear weapons, it is argued, but will instead lead themto develop such weapons of their own to deter U.S. attack. They maintain that althoughnonproliferation efforts have not been 100 percent successful, they have served as an importantrestraint. Resuming low-yield R&D could lead to nuclear testing, critics argue, likely leading to resumed nuclear testing by others. The head of the nuclear directorate of Russia's defense ministry reportedlystated in January 2002, "if any of the five countries officially possessing nuclear weapons startstesting nuclear munitions again, and we consider our nuclear stockpile to be in a critical state, wetoo will carry out nuclear tests." (61) Beyond that,the NPT is the cornerstone of the nuclearnonproliferation regime, which incorporates other agreements, treaties, groups, and arrangementsas well. (62) The NPT faced a key decision in 1995:states party had to decide whether or not to extendthe treaty indefinitely. They decided to do so, but this extension was linked to a set ofnonproliferation objectives, one of which was completing negotiations on a CTBT no later than1996. Accordingly, as Sidney Drell and others argue, "A decision to resume [nuclear] testing tobuild low-yield nuclear weapons could deal the [nonproliferation] regime a fatal blow ..." (63) Those opposed to the ban reject the argument that studying low-yield weapons would lead to nuclear proliferation. No other nation has such a prohibition, so lifting it would simply move theUnited States to a position of parity in that regard, they assert. Nations will act in their own interestson decisions involving their security or ambitions. The United States signed the CTBT in 1996, yetIndia and Pakistan tested nuclear weapons in 1998. These critics question the NPT's utility. NorthKorea and (apparently) Iran made substantial progress on their nuclear programs even while beingparty to that treaty. Nuclear programs in all four nations were underway decades ago, long beforethe U.S. ban on low-yield R&D. The ban's opponents argue that U.S. actions -- especially onsomething as remote as preliminary studies of possible weapons -- will not make other nations morelikely to develop WMD. To the contrary, they believe, U.S. ability to respond to WMD proliferationefforts by rogue states may dissuade them from undertaking such actions in the first place. AsSenator Domenici said, "to permit [weapons scientists] to work in this area [low-yield weapons] ispart of the deterrent." (64) The ban's opponents reject the contention that R&D on new weapons will lead to nuclear testing. As C. Paul Robinson, Director of Sandia National Laboratories, said, "I can categoricallystate that no one is proposing returning to nuclear testing." (65) The United States has decades ofexperience with low-yield nuclear weapons, including those with altered radiation outputs, such asthe neutron bomb of the 1970s. Use of existing, tested designs, perhaps with modifications notrequiring testing, would provide high confidence. A better understanding of the effects of low-yieldweapons is crucial for understanding their utility, yet key variables are how a blast wave wouldinteract with structures; computer models and engineering studies would arguably provide theneeded data. Would low-yield weapons offer military value? Some supporting the ban argue there is little meaningful use for low-yield weapons. They note astatement by Linton Brooks, at the time Acting Administrator of NNSA: "we have no requirementto actually develop any new weapons at this time." (66) As the Afghanistan and Iraq Wars showed, itis often difficult to know what to target. Al Qaeda presents few if any targets that would be suitablefor nuclear weapons. Another lesson of these wars is that if targets can be located, they can oftenbe defeated with conventional weapons. Deep burial, large tunnel complexes with multiple barriers,deception, etc., might make targets in rogue states difficult to destroy with nuclear weapons even ifthey can be located. Many potential targets are in cities, but detonating a low-yield nuclear weaponin or even near a city could cause much collateral damage. By one estimate, a 5-kiloton weapondetonated near and upwind from Damascus, Syria, at a depth of 30 feet would cause 230,000fatalities and another 280,000 casualties within two years. (67) Use of a low-yield earth penetratoragainst the bunkers thought to house Saddam in Baghdad, a city of nearly 5 million people, couldhave caused casualties on a similar scale. The ban's opponents claim that low-yield weapons may offer important military capabilities, such as for destroying biological munitions (discussed under ACI, below) or attacking undergroundbunkers. There is military interest in low-yield weapons. Admiral James Ellis, Commander, U.S.Strategic Command, wrote that "US Strategic Command is interested in conducting rigorous studiesof all new technologies, and examining the merits of precision, increased penetration, and reducedyields for our nuclear weapons." (68) At present,in the view of those who would lift the ban onlow-yield R&D, the ban makes it impossible to assess the value of the capabilities sub-5-kt weaponsmight bring to the stockpile, or how they might be designed for specific missions. The ban, theyassert, imposes broader constraints on nuclear weapons designers as they seek to stay well away fromany activities that could be construed as violating the Spratt-Furse provision. Senator Sessionsconcluded, "it would be irrational to prohibit research that could inform future decisions as towhether such weapons would enhance the national security of our country." (69) Senator Domenicinoted that the ban increases the leadtime to develop a low-yield weapon should the need arise. (70) For FY2004, the Administration requested $21.0 million for the Advanced Concepts Initiative (ACI). Of this amount, $15.0 million was for the Robust Nuclear Earth Penetrator (RNEP) weapon,discussed in the next section, and $6.0 million ($2.0 million for each of the three weapons labs) wasfor other advanced weapon concepts, discussed here. This latter program involves studies throughphase 2a/6.2a by small groups of weapons personnel at Los Alamos, Livermore, and Sandia, as wellas liaison with DOD commands. A Los Alamos publication stated: The ACI program will conduct new weapon studies and will explore concepts for new warhead designs and modifications to meet DoD needs that are notmet by the current stockpile. The ACI is a program for developing and exercising capability and forapplying that capability to examine options. (71) In its FY2004 legislative proposals, the Administration argued for ACI: A revitalized nuclear weapons advanced concepts effort is essential to: (1) train the next generation of nuclear weapons scientists and engineers; and (2)restore a nuclear weapons enterprise able to respond rapidly and decisively to changes in theinternational security environment or unforeseen technical problems in thestockpile. (72) The FY2004 NDAA and EWDAA both provided $6.0 million, as requested, but conferees on the latter made $4.0 million available for authorization only after delivery of a DOE-DOD report onthe nuclear stockpile and a 90-day congressional review period. As of early March 2004, the reporthad not been delivered, and NNSA could offer no indication as to when that might occur. As aresult, ACI may be limited to a budget of $2 million for much if not all of FY2004. The FY2005request for ACI is $9.0 million. During much of the Cold War, the three weapons laboratories had teams of scientists and engineers studying advanced weapons concepts. Studies ranged from modifications of existingweapons, to improvements for next-generation weapons, to exploration of new weapons technologiesand weapons for new missions. Tools used included laboratory experiments, computer modeling,data from past and ongoing nuclear tests, and data from experiments the teams added to nuclear tests. These teams were small, perhaps a half-dozen full-time professional staff, but during the Cold Warthey drew on the large advanced and exploratory R&D program that was a major part of the corenuclear weapons programs at the laboratories. Team members, new staff as well as experienceddesigners, would typically work on advanced concepts for a year or two. Team members would alsointeract with DOE headquarters, DOD elements, contractors, and others. With the end of the Cold War and the end of nuclear weapons development, the laboratories wound down their advanced concepts programs in the middle 1990s. Since then, there have beenstatements emphasizing the value of the type of work that advanced concepts programs performed,and subsequent calls for an ACI to reestablish advanced concepts programs at the labs. ACI wouldrecreate the small teams, but would not reorient the bulk of the nuclear weapons program, which isfocused on sustaining current weapons through the Stockpile Stewardship Program. The Chilesreport of 1999 stated, "DOE should also encourage the laboratories to continue their decades oldpractice of exploratory development programs since these programs have allowed experiencedengineers and scientists to maintain their systems engineering skills and train new employees." (73) TheFoster panel's FY1999 report stated: "The nuclear weapons complex should work on a range ofdesign and development tasks that exercise and sustain the capability to produce new weapondesigns. This provides both a broader set of technical options to meet future needs, and a programfor training new generations of stewards." (74) The purportedly leaked version of the Nuclear Posture Review stated: There are several nuclear weapon options that might provide important advantages for enhancing the nation's deterrence posture: possible modificationsto existing weapons to provide additional yield flexibility in the stockpile; improved earthpenetrating weapons (EPWs) to counter the increased use by potential adversaries of hardened anddeeply buried facilities; and warheads that reduce collateraldamage. To further assess these and other nuclear weapons options in connection with meeting new or emerging military requirements, the NNSA willreestablish advanced warhead concepts teams at each of the national laboratories and at headquartersin Washington. This will provide unique opportunities to train our next generation of weapondesigners and engineers. DoD and NNSA will also jointly review potential programs to providenuclear capabilities, and identify opportunities for further study, including assessments of whethernuclear testing would be required to field such warheads. (75) The Administration now proposes to re-create these teams. In July 2003, NNSA provided details on the FY2004 studies that the non-RNEP part of ACI would conduct. (76) Perhaps $200,000 would gofor participation by the weapons labs in an Air Forceconcept study of enhancing and modernizing a current warhead, such as examining if any additionalmilitary characteristics are useful and feasible. The balance would go for other laboratory studies. Specifically, Los Alamos would spend its funds on enhancing computer modeling and simulationcapability and for mechanical testing. Sandia would continue a study of "mission end-to-endcommand and control," which would enable military personnel to know where a warhead was at alltimes. This would be applicable to conventional as well as nuclear weapons. For example, if alaser-guided bomb lost track of its laser signal because of fog or smoke, end-to-end command andcontrol would indicate its location. Livermore would undertake an early study on "design to effect"(i.e. designing nuclear weapons to obtain desired output characteristics). These projects may or maynot support research directly on low-yield nuclear weapons. For FY2004, the Senate Armed Services Committee recommended authorizing the full $21.0 million requested for Advanced Concepts. (77) TheHouse Armed Services Committee stated that ACIhad several important purposes, such as exercising the weapons design process, training the nextgeneration of nuclear weapons scientists and engineers, and understanding what adversaries mightdo in the area of nuclear weapon design. Accordingly, the committee expressed its "[belief] thatNNSA should consider more significant future investment in these [Advanced Concepts] activities"and "recommends that NNSA proceed with its advanced concepts initiative forthwith." (78) Noamendments were offered on non-RNEP ACI in the Senate. The House rejected an amendment byRepresentative Tauscher to transfer all funds from ACI (including funds for RNEP) to conventionalprograms to defeat hardened and deeply buried targets, as discussed under RNEP, below. As aresult, non-RNEP ACI was not at issue in the conference. In its report on H.R. 2754 , the FY2004 Energy and Water Development Appropriations Bill, the House Appropriations Committee delivered a scathing criticism of thenuclear weapons program. The committee found that a flawed budget process raised questions aboutthe legitimacy of nuclear weapon requests: Unfortunately, the country possesses neither a modern stockpile nor a modern nuclear weapons complex. Instead, both are largely carryovers from the ColdWar era. After careful consideration, the Committee has concluded that much of the current situationresults from a flawed budget process. ... the weapons activities portion of the NNSA budget iseffectively insulated from any such [intra-agency] tradeoffs -- DoD sets requirements that anotheragency has to fund, and DOE treats the weapons activities budget as untouchable because DoD setthe requirements. There needs to be a serious debate about whether the approximately $6 billion spent annually on DOE's nuclear weapons complex is a sound nationalsecurity investment. Until that debate occurs and the DOE weapons budget request is subject tomeaningful budget trade-offs, this Committee will not assume that all of the proposed nuclearweapons requests are legitimate requirements. (79) This disconnect, the committee stated, led to new weapon-related initiatives, such as ACI, RNEP, and enhanced test readiness, that overstretched NNSA's management abilities. It appears to the Committee the Department [of Energy] is proposing to rebuild, restart, and redo and otherwise exercise every capability that was used overthe past forty years of the Cold War and at the same time prepare for a future with an expandedmission for nuclear weapons. Nothing in the past performance of the NNSA convinces thisCommittee that the successful implementation of Stockpile Stewardship program is a foregoneconclusion, which makes the pursuit of a broad range of new initiatives premature. Until the NNSAhas demonstrated to the Congress that it can successfully meet its primary mission of maintainingthe safety, security, and viability of the existing stockpile by executing the Stockpile Life ExtensionProgram and Science-based Stewardship activities on time and within budget, this Committee willnot support redirecting the management resources and attention to a series of newinitiatives. (80) For these reasons, it recommended eliminating the $6.0 million requested for ACI. The House passed H.R. 2754 on May 18, 2003, 377-26; no amendments were offered on ACI,RNEP, test readiness, or any other Weapons Activities provisions. (Weapons Activities is the partof NNSA's budget that funds stockpile stewardship.) The Senate Appropriations Committee recommended providing the full amount requested for ACI. (81) The Senate considered severalamendments on ACI on September 16. It tabled, 53-41, anamendment by Senator Feinstein to eliminate the full $21.0 million for RNEP and other ACI, andfor other purposes. (82) It adopted on voice vote anamendment by Senator Jack Reed that barred useof funds provided by H.R. 2754 for phase 3 or 6.3 or beyond for advanced nuclearweapon concepts including RNEP. (83) SenatorReed stated that his amendment "would assure that theappropriations bill is consistent with the language [on RNEP by Senator Nelson of Florida] that isincluded in the FY2004 Defense authorization bill." (84) The Senate agreed to various amendments enbloc, including one by Senator Bingaman that barred spending funds provided by the bill onadditional and exploratory studies (a category that excludes RNEP) under ACI until 30 days afterNNSA gives Congress a detailed report on activities planned in that category for FY2004. (85) TheSenate passed the bill, H.R. 2754 , on September 16, 92-0. Non-RNEP ACI was not expected to be at issue in the defense authorization conference because each House provided the same amount for it. Senate conferees could, however, have consideredwhether to endorse the House language regarding the program's future budget and proceeding,modify it, or be silent on it. Because of congressional interest in nuclear weapon programs,conferees could also have considered directing DOE to specify in detail the projects that future-yearACI requests will support. Non-RNEP ACI was at issue in the energy and water conference. A point of possible contention was whether conferees could arrive at a compromise somewhere between the House andSenate figures, or if the funding request was so small relative to other NNSA projects that a cut of,say, 50 percent would prevent one or two of the three labs from performing its planned study. Alsoat issue were the two amendments the Senate passed. An issue that implicitly faced energy and water conferees was the gulf between the House Appropriations Committee report, which argued that "pursuit of a broad range of new [nuclear]initiatives [was] premature," and the House Armed Services Committee report, which urged NNSAto "consider more significant future investment" in ACI (including RNEP). (86) Further, theauthorization bill as passed by the House included the $6.0 million requested, while theappropriations bill as passed by the House eliminated those funds. The section on the low-yield R&D ban, above, gave details on final passage of the NDAA. Regarding the EWDAA, the House agreed to the conference report, 387-36, on November 18, andthe Senate agreed to it on the same day by unanimous consent. The President signed the measureinto law ( P.L. 108-137 ) on December 1. The NDAA provided the amount requested for non-RNEP ACI, $6.0 million. It was not at issue in conference, and the conference report did not comment on it. The EWDAA provided $6.0 million for Advanced Concepts (excluding RNEP), but the conferees made $4.0 million available for obligation only after the Secretaries of Energy and Defensedeliver to Congress a revised Nuclear Weapons Stockpile plan detailing a plan and schedule forachieving the President's proposed adjustments to the strategic weapons stockpile (including areduction in operationally deployed weapons to 1,700-2,200 by 2012), and 90 days elapse for reviewby the Armed Services and Appropriations Committees. (87) The DOE-DOD report was due with thesubmission of the FY2005 budget request in early February 2004, but the two departments had notsubmitted it a month later. (88) This provisiontherefore limits ACI funds to $2.0 million until thereport is submitted. Further, conferees included as section 313 the amendment by Senator Bingamanbarring spending on ACI until 30 days after NNSA submits a report detailing certain planned ACIactivities. NNSA submitted the report on March 3, 2004, so the activities are suspended until April2. (89) While the EWDAA provided the Senate amount for ACI and not the House amount, the conferees' language requiring a DOE-DOD report on the link between the stockpile plan and thePresident's planned nuclear force structure addressed a central concern expressed in the HouseAppropriations Committee's report: While the conventional forces in the Defense Department go through a 21st-Century transformation to meet the challenges of a new era, the NNSAis forced, through inertia and indecision, to maintain all contingencies regardless of how unlikely thethreat. The Department of Defense needs to determine the composition of the stockpile required tosupport the President's announced stockpile reductions, and then coordinate with DOE to establishthe nuclear weapons complex requirements based on deliberate, timely, well-justified decisionssupported by Congress. (90) Regarding the amendment by Senator Reed on RNEP, the conference report contained thefollowing language: "The conferees remind the Administration that none of the funds provided maybe used for activities at the engineering development phases, phase 3 or 6.3, or beyond, in supportof advanced nuclear weapons concepts, including the Robust Nuclear Earth Penetrator." (91) The FY2005 request is $9.0 million. ACI activities include developing advanced concepts which could be applied to the stockpile of the future, code development for system-specific nuclear effects, phenomenology,and exercise of design skills; conducting pre-conceptual, conceptual, feasibility, design and costingstudies of options. (92) NNSA Administrator Brooks said that ideas for ACI include the ability to destroy biological agents, improved safety and security, and more capable or robust weapon designs that might bedeveloped without testing. He felt that the effort probably "will be focused on safety, securityflexibility, greater margins than on fundamental new capabilities." (93) NNSA's FY2005 budget request document includes, for the first time, budgets for out years (in this case FY2006-FY2009) as well as for the current year. The requests projected for ACI are:FY2006: $14.4 million; FY2007, $14.9 million; FY2008, $14.6 million; and FY2009, $29.5million. (94) The Administration, DOD, NNSA, the nuclear weapons laboratories, the Foster panel, and others see many benefits for ACI. Many are fine-grained in their detail. The labs in particular havea detailed sense of what they would undertake through ACI; many of the arguments for ACIpresented here are based on discussions with weapons lab personnel. Whether because of therelatively small amount of money involved, uncertainty over which projects ACI would undertake,or the attention drawn to RNEP, test readiness, and the ban on low-yield R&D, opponents of thosethree issues made few comments on ACI as a whole. Consequently, due to the paucity of publicdiscourse on ACI, some counterarguments come from critics of the program, but others are presentedas they might be made by the critics. Does deterrence require new types of nuclear weapons? A key aspect of the debate over ACI -- and over low-yield weapons andRNEP as well -- is the relationship between deterrence and new weapons. George Miller ofLivermore states: Deterrence is a dynamic concept -- it has to continually evolve and be able to respond to changes that our adversaries will make in order to be relevant andeffective. That's what happened in the Cold War. The real question that is being debated is whethernuclear weapons will be allowed to develop in response to the changing world situation. If they areto evolve, modifications to the Cold War arsenal will be required if for no other reason than to limitcollateral damage. If they are not to evolve, the nuclear arsenal will become irrelevant and will dieaway. Standing still is not stable. (95) Critics assert that the only role of nuclear weapons is to deter other nations from using nuclear weapons against the United States, or perhaps against its friends and allies. For this purpose,existing weapons are more than sufficient and their use is fully credible. In this view, there wouldbe no need for new weapons. With the threat of a U.S.-Russian nuclear war very low, the Administration is seeking something from nuclear weapons beyond deterrence. A goal set forth in the Quadrennial DefenseReview is that "[w]ell targeted strategy and policy can ... dissuade other countries from initiatingfuture military competitions." (96) The NuclearPosture Review, amplifying on this point, stated thata "[d]iverse portfolio of capabilities denies payoff from competition." (97) The Administration furtherargues that preemption may be needed to counter threats of WMD, and that the United States mayuse "all of our options" in responding to an attack using WMD. While these two statements do not state that the United States would use nuclear weapons preemptively, neither do they rule out suchuse. Another goal of the current Administration involves having potential adversaries take certain actions, such as having Iran open its nuclear facilities to inspection, having North Korea verifiablyhalt all work related to nuclear weapons, or (until recently) having Iraq cooperate fully withinspectors. Ideally, these goals would be achieved through diplomatic, economic, or similar means,but if those means do not suffice, preemptive force might be threatened or, as in Iraq, used. Coercion-- the threat to use force against states if they do not take certain actions -- goes beyond deterrence,which threatens to use force against states if they do take certain actions. Coercion works earlier inthe threat chain, with the intention of eliminating (through diplomacy, threat, or force) activities thatcould create threats rather than forestalling the use of existing capabilities, one argument being thatit is hard to know what is needed to deter a rogue state. A shift from deterrence to something more, whatever form that may take, could lead to a change in weapons desired to implement the new policy. Conventional or nuclear forces credible fordeterrence might not be credible under the new approach. Would any regime believe a U.S. threatto use nuclear weapons? New nuclear weapons -- especially lower-yield weapons tailored todestroy specific targets -- render such threats more credible, supporters argue. ACI's supporters believe that the ability to respond to potential threats, as ACI is intended to do, would promote U.S. security. John Gordon, former NNSA Administrator, said, "a demonstratedability to design, develop, and produce new warheads, including small builds of special purposeweapons, could be an important element in our overall deterrent posture. Such capabilities couldact to convince an adversary that it could not expect to negate U.S. nuclear forces, for example, byseeking to house vital command and control functions in hard, deeply-buried installations." (98) U.S.nuclear weapons able to hold at risk such targets could be used not only for deterrence but also forcoercion and preemption. In the view of critics, deterrence and something more come from threat of regime change, and that threat comes from conventional, forces, not nuclear forces. New weapons, in this assessment,might not enhance deterrence even if tailored for specific missions, as ACI might do, because roguestates would see use of new weapons as no more credible than use of current weapons. Critics citea 1992 letter by the first Bush Administration setting forth a presidential decision "to modify U.S.nuclear testing policy immediately, to impose limits on the number, purpose and yield of our tests. The purpose of all U.S. nuclear tests of our weapons will henceforth be for the safety and reliabilityof our deterrent forces." (99) Omitted from thisstatement was weapons development as a purpose fortesting. As developing new weapons typically required testing, critics interpret the statement asindicating that there was no need for new nuclear weapons. If existing weapons were sufficient forU.S. security in 1992, they assert, these same weapons should suffice now. At that time, U.S.nuclear weapons addressed as lesser included cases targets that are of current concern, such as deeplyburied targets and biological weapon storage sites. Additionally, critics oppose the Administration'spolicy of preemption and see concurrent requests for buttressing U.S. nuclear capabilities as adangerous part of it. Do ACI programs offer significant military value? There have been several suggestions for new types of nuclear weapons in addition to earth penetratorweapons (EPWs). General Richard Myers, Chairman, Joint Chiefs of Staff, stated, "In terms ofanthrax, it's said that gamma rays can, you know, destroy the anthrax spores, which is something weneed to look at." (100) Kathleen Bailey, formerAssistant Director for Nonproliferation, Arms Controland Disarmament Agency and Robert Barker, former Assistant to the Secretary of Defense forAtomic Energy, suggest several new warheads: "[w]arheads with suppressed electromagnetic pulsefor more effective missile defense; [r]educed residual radiation warheads for low collateral damage;and [r]obust warheads for longer shelf-life." (101) Another possibility would be warheads forintercepting missiles armed with chemical or biological agents. (102) If these ideas are of mutualinterest to DOE and DOD, projects of this sort would appear to fall within the purview of ACI. Critics question the value or feasibility of such weapons. Peter Zimmerman, a physicist, consultant to the Senate Foreign Relations Committee, and formerly science adviser for arms controlat the State Department, writes: "Reduced residual radiation weapons would be similar to the'neutron' bombs, made in the 1970s, with very low fission yield. For classified reasons they cannotbe readily made today without compromise to higher priority programs. Suppressingelectromagnetic pulse is very difficult because that would require capturing the many high-energyelectrons liberated by a nuclear explosion. Ultra-robust warheads could have been developed andtested decades ago, but weren't, perhaps because the nuclear weapons community feared that thatcould have ended the need to test." (103) TheAdministration and Congress appear to have little if anyinterest in nuclear-armed interceptors, as noted earlier. In a 1989 report, DOE explained its low interest in more robust warheads. It stated that the nuclear weapon laboratories were studying the feasibility of such warheads, which would havereduced sensitivity to aging, to material properties that might change slightly during remanufacture,to tolerances of manufacture, etc. "We cannot predict the success of this research program," DOEsaid, and noted that "such warheads would be less operationally efficient than the optimizedwarheads in current use and have some size and weight penalties with attendant cost andperformance penalties to weapon delivery systems." (104) Now, though, such penalties are arguably lessimportant than they were during the Cold War -- and ultra-robust warheads accordingly moredesirable -- because the United States plans to reduce the number of warheads carried byoperationally deployed ballistic missiles, (105) and bombers can be loaded with fewer bombs andmissiles, making extra carrying capacity available on these systems. Is it technically feasible to use nuclear weapons to destroy stored bioweapon stockpiles? If so, is such use advisable? One concept that ACI mightexplore would be nuclear weapons for destroying chemical or biological warfare agents. ACIsupporters advance it as a main reason for studying new or modified weapons, yet there is much lessunderstanding of this topic than of RNEP. This section deals with attacks on biological warfare(BW) agents because some of them, such as anthrax spores, are more lethal than the most toxicchemical warfare agents on a weight-for-weight basis. It first addresses the technical feasibility ofsuch attacks, drawing heavily on the work of Hans Kruger (106) and Jonathan B. Tucker. (107) Kruger isa physicist and an authority on the effects of nuclear weapons on chemical and biological agents. He led Livermore's weapons effects group from around 1973 to 1999, when he retired, and iscurrently working at Livermore on these issues. Tucker is a Senior Researcher at the Center forNonproliferation Studies, Monterey Institute of International Studies. He has written extensively onBW and was a U.N. biological weapons inspector in Iraq. (108) After considering feasibility, thissection addresses the advisability of such attacks, taking into account political, intelligence, andcollateral-damage issues, and then offers several concluding observations. Feasibility. In calculating the effects of nuclear weapons on BW agent, Kruger makes several assumptions about the target. (109) The agent would bestacked in steel barrels or larger containers in various configurations, stored in the open or in atypical warehouse. It would be in the form of a water slurry, (110) for which he used water as asurrogate for the purpose of computer modeling. (111) He stated that "[b]iological agent is typicallystored in barrels or larger storage containers." (112) He further stated that BW agent in a water slurryis a conservative assumption because less radiation would reach the bottom of a stack of barrelsfilled with water slurry than with, e.g., dry anthrax powder. (113) While there may be various ways to neutralize BW agent without the cooperation of the country possessing such agent, Kruger argues that using a nuclear weapon to neutralize BW agents requiresapplying a lethal dose of radiation to all parts of the storage site. Nuclear weapons produce variousforms of radiation. X-rays are stopped near the top of the material because they do not have enoughenergy to penetrate further. Gamma rays (electromagnetic radiation of higher energy than x-rays)penetrate more deeply. One study finds gamma rays of limited value: In two cases studied (attackingBW agent in an underground bunker, one case with a nuclear explosion inside the bunker and theother with the explosion in the ground but outside the bunker), "the amount of bio-agents effectivelyirradiated by this process [gamma rays] will in all likelihood be a small fraction of the total." (114) Neutrons are the most effective mechanism. They are more penetrating than gammas. In addition,neutrons generate gamma rays when they strike the target material; gammas generated far down inthe stack of stored agent can penetrate to the bottom of the stack. The key to calculating the effectsof a nuclear weapon on BW agents, then, according to this argument, is the number of neutrons andtheir energy level; a dose of neutrons and gamma rays sufficient to kill BW agent at the bottom ofthe stack would expose the rest of the stack to a much greater dose. The fireball of a nuclear explosion would probably incinerate BW agents, but radiation is a more useful kill mechanism from a military point of view because it can be calculated much moreprecisely if one knows the conditions under which the agent is stored. Currently-deployed nuclearweapons, which use a combination of fission and fusion to produce an explosion, must be detonatedclose to the ground -- creating much fallout -- in order to kill BW agents; for a greater height ofburst, the number and energy level of neutrons produced would be insufficient for this task. (115) Nuclear weapons can be made, however, that generate more neutrons. Such a weapon is a reducedblast/enhanced radiation weapon, such as the "neutron bomb" of the 1970s. (Neutron bombs werecontroversial and are discussed further below.) For a given yield, these weapons produce an orderof magnitude more neutrons than do standard low-yield nuclear weapons, and the neutrons have ahigher energy level. Kruger calculates that a 10-kt weapon of this type burst at a height of 10 meterswould neutralize BW agents to a radius of about 50 meters, vs. 10 meters for a 10-kt fission weaponat the same height of burst. (116) (For comparison,the Hiroshima bomb had a yield of 15 kt.) He notesseveral consequences of the increased neutron flux: a fusion warhead [e.g., a neutron bomb] has a larger sterilization area than a fission warhead of equal yield. Another (to me: significant) consequenceis that I can detonate a fusion warhead at an altitude above the ground (higher than the "optimum"altitude) sufficiently high that the fireball does not touch the ground, and still produce a sterilizingdose at the very bottom of the barrel stack over a militarily significant area. Avoiding fireballcontact with the ground eliminates most of the local fallout. This is not feasible for a fissionwarhead. (117) If an adversary stored BW agent in an underground bunker, the surrounding earth, steel, and reinforced concrete would significantly attenuate the neutrons from a weapon that burst far enoughfrom the bunker (vertically or horizontally) that the fireball did not enter it. To destroy the agent,an earth penetrator weapon (EPW) would have to place the fireball inside the bunker. The chief killmechanism would be the heat of the fireball, the effectiveness of which would be increased becausethe fireball would (at first) be concentrated within the structure. The delayed radiation resulting fromthe fission debris would expose any remaining agent to a further radiation dose. (118) Critics question Kruger's postulated target as optimized for destruction by a nuclear weapon. The next few paragraphs focus on anthrax because it is one of the tougher BW agents to kill and isalso one of the most militarily useful agents. Would a nation make anthrax in aqueous form? It is easier to make anthrax as a water-based slurry than a fine powder. According to Tucker, "It appears that at the time of the1991 Gulf War, Iraq only had the capability to produce wet anthrax. Iraqi BW scientists appear tohave worked during the 1990's to acquire the know-how to produce dry, powdered anthrax, usinga closely related bacterium (the biopesticide Bt) as a model system. If a country had the capabilityto produce dried, powdered anthrax, it would presumably store it in that form because of its muchlonger shelf-life and the fact that dry, powdered anthrax is much easier to disseminate as an aerosolfrom an aircraft sprayer system or a missile warhead." An Office of Technology Assessment (OTA)report of 1993 provides further information: "when anthrax bacteria are incubated under particularconditions, they transform themselves into the rugged spore form, which has a long shelf-life ... Thisspore-forming ability makes anthrax particularly well suited for delivery by missiles or bombs. Thespores are stable when suspended in air, can survive explosive dissemination from a bomb or shell,and ... will live for several days if direct sunlight is avoided." (119) Would a nation need huge quantities of anthrax? The OTA report states that "a gram of anthrax [in spore form] theoretically contains some 10 million lethal doses." (120) Theability of a single envelope with a small quantity of powdered anthrax to shut down the Capitolcomplex in October 2001 is a case in point. Tucker states, "A bioterrorist attack in a confined space,such as a subway station, would require a few ounces of dry anthrax. Military applications orstrategic attacks against cities would require much more material, perhaps hundreds of pounds toattack a large city. As a rough rule of thumb, about a kilogram of dry, concentrated anthrax sporeswould be required to infect 50 percent of the people in a square kilometer, assuming efficient aerosoldissemination under optimal conditions. A kilo of dry anthrax is equivalent to a much larger volumeof wet slurry." Would a nation make and store anthrax long before it intended to use it? According to Tucker, "A nation would probably not make anthrax far in advance of use unless it hadmastered the technology to produce dry powdered anthrax, which has a shelf life of several years.A wet slurry of anthrax will tend to coagulate after several months, rendering it unusable as aweapon. Thus, a country that possessed only wet-anthrax technology would probably produce theagent shortly before use." Would a nation store large quantities of anthrax aboveground? Attacking anthrax stored in shallow underground bunkers would require the use of EPWs to explode in thebunker; otherwise, the ground would shield the bunker from neutrons. An EPW would create muchfallout and could cause other problems, as detailed in the section on RNEP, below. Storing anthraxin a bunker at a depth considerably greater than that which EPWs could reach would preventneutrons, heat, and delayed radiation (from radioactive material left by the nuclear explosion) fromreaching the bunker. Tucker states that "[s]ince anthrax spores are quite rugged and are in a stateof suspended animation, it's reasonable to assume that [ground] shock alone would be unlikely tokill them reliably." The statement from the OTA report that anthrax spores can survive explosivedissemination, cited above, supports this point. For further protection from neutrons, an adversarycould shield anthrax with material that reflects neutrons (e.g., beryllium) or that absorbs them (e.g.,polyethylene mixed with boron). Alternatively, dry powdered anthrax could be hidden anywhere insmall lots, in which case its destruction would depend mainly on locating the agent; once that isdone, various types of weapons and tactics might be used to neutralize it. Advisability. Critics point to a number of intelligence hurdles. A successful attack would require detailed knowledge of the target, such as storageconfiguration. Knowing the target's precise location would be crucial because of the very shortrange at which even an enhanced radiation weapon would sterilize BW agent. Yet as Tucker notes,"During the 1991 Gulf War, many suspect BW production and storage facilities were targeted inerror, and several real facilities such as the al-Hakam factory -- which UNSCOM (121) later determinedwas Iraq's largest anthrax production facility -- were totally unknown to U.S. intelligence." Itwould be important to know the type of agent because, as Kruger states, "the neutralizing dose [ofradiation] for different bio agents varies by a couple of factors of two." Compensating foruncertainty as to which agent was being attacked by using a weapon able to neutralize the mostradiation-resistant agent could result in using a weapon with a yield several times larger than needed. Critics also note political problems with nuclear weapon development and use. An attack that sought to minimize fallout would have to use reduced blast/enhanced radiation weapons. Neutronbombs, which the United States developed in the 1970s, received intense domestic and foreigncriticism as the "capitalist bomb" that spared property while killing people. Similar criticism woulddoubtless reemerge if the United States began a program to develop such weapons, especially if theintended targets were perceived to be rogue states in the Third World. The development programcould require nuclear testing, fueling further criticism. Critics assert that there are nonnuclear approaches to destroying BW agents. According to one report, the Defense Department is working on nonnuclear weapons for destroying chemical orbiological agents. Destroying the actual chemical or biological material [in Iraq] is a task that may fall to agent defeat weapons being developed by the U.S. Navy andLockheed Martin under a program originally dubbed Vulcan Fire and now spearheaded by thesecretive U.S. Defense Threat Reduction Agency. The HTI-J-1000, as it is called, would be the fillinside the penetrating warhead used on the massive 2,000-pound GBU-24 laser-guided bomb andBLU-109 Joint Direct Attack Munition (JDAM) used to attack undergroundbunkers. (122) That report states that the chemical reactions would generate intense heat that would destroy the biological and chemical agents, and would generate other chemicals that would neutralize theseagents. (123) Michael Levi, director of the Strategic Studies Project at the Federation of American Scientists, suggested another approach to defeating a hypothetical underground anthrax storage bunker in Iraq: U.S. planners may not want to directly attack the bunker. Instead, a watch could be placed on the facility using satellite imagery coupled with armedunmanned aerial vehicles. Anyone or anything attempting to enter or leave the bunker would bedestroyed, making the anthrax inside unusable. (124) Kruger rejects the idea of using conventional high explosives to neutralize BW agents for two reasons. First, he calculates that it would take a huge quantity of these explosives, perhaps hundredsof 500-pound bombs, to raise the temperature of the quantity of agent in a typical storage sitesufficiently, assuming the agent was in a water slurry. Similarly, if acid were used instead ofexplosives to kill BW agent, it would take a very large quantity of acid. Second, he argues thatattacking a BW storage site with conventional weapons would cause much more collateral damagethan would an attack with nuclear weapons, even standard low-yield weapons: Conventional weapons are likely to only kill a small fraction of the agent while dispersing a significant fraction of the remaining live agent. My pastdispersal calculations for a generic target in a country of current interest have shown collateraldamage areas from dispersed bio agent that were very many orders-of-magnitude larger than thefallout area for the ground burst of a low-yield fission warhead. (125) It might be possible to deploy reduced blast/enhanced radiation weapons without testing them, such as by adapting designs made and tested several decades ago. Optimizing these weapons fordefeating specific BW agents, however, could involve changes that would eventually lead totesting. (126) An attempt to seal off a facility encounters at least two problems. First, a U.S. attack on a rogue state with no warning would be unlikely. With warning, that state could easily move materials andequipment to other sites before the attack. Indeed, leaders who believed that their nation was at riskfrom a U.S. attack would probably make plans well in advance to do just that. Second, some nations,such as Afghanistan and North Korea, have extensive tunnel networks that might provide undetectedaccess, at a distance, to military facilities connected to such networks. Conclusion. It appears that, under certain specific circumstances, a nuclear blast is technically capable of sterilizing BW agents. One example wouldbe a large quantity of agent in aqueous solution stored at or near the Earth's surface, with the locationpinpointed within meters and with accurate intelligence as to the agent present and how it is stored. (The agent would have to be stored long enough that intelligence assets could locate it, but not solong that it would deteriorate significantly.) Another example would be a depot with a ton ofpowdered anthrax, in which case a relatively small amount (as compared with hundreds of barrels)of agent could do immense harm and it would be imperative to minimize the risk of anthraxescaping. Few would suggest, though, that nuclear weapons would automatically be the means offirst choice for attacking BW agent. Nuclear-weapon use entails clear political disadvantages, theeffectiveness of nuclear weapons in particular situations may be uncertain, and nonnuclear meansmay be available. Whatever the case, it appears likely that Congress would examine closely anyrequest to proceed to development engineering or production of nuclear weapons intended to destroyBW agents. Such examination might include the following questions: How probable is the military scenario put forth to justify development and acquisition of these weapons? How plausible is the scenario? What are its flaws? How broad or narrow are the circumstances under which the scenario exists? Would nuclear use be the only option in that scenario, or could nonnuclear means suffice? What is the state of progress on nonnuclear alternatives? What are the military and political pros and cons of developing and acquiring these weapons? Can ACI help in the fight against nuclear proliferation? According to the FY2003 report of the Foster Panel, A second requirement defined in the NPR is for advanced concept exploration. Work must proceed on future concepts and technologies to avoidtechnical surprises, to attract and train future stockpile stewards, and to assess intelligenceinformation on the continuing development and proliferation of WMD and their delivery methods. The Panel emphasizes that it is essential for Congress to be kept apprised of developments in foreignweapons programs and their potential implications for U.S.security. (127) ACI could improve U.S. understanding of potential terrorist nuclear weapons, which could improve U.S. ability to interpret fragments of intelligence, to detect evidence of nations or groupsworking to develop nuclear weapons, to detect the transport of such weapons and attempts to bringthem into the United States, and to disable such weapons. It could also help avoid technical surpriseby improving U.S. ability to understand foreign weapon developments. For example, creatingnuclear weapon designs consistent with the Chinese or North Korean weapons program may helpthe United States interpret intelligence clues to gain insight into the pace of the program, itstechnological successes and failures, and warhead characteristics. ACI's supporters reject the claim that the program will encourage nuclear proliferation. They argue that nations will decide to go nuclear for reasons far larger than ACI. Even if ACI encouragedproliferation, that would not necessarily mean that the United States should halt the program. It islikely, supporters claim, that North Korea and Iran are pursuing nuclear weapons out of fear of U.S.conventional forces. Does this mean, supporters ask, that the United States should halt militarymodernization and shrink its conventional forces to keep those nations from going nuclear? At thesame time, it is argued, India and Pakistan are pursuing nuclear weapons not because of U.S.conventional or nuclear forces but because of threats that each sees from the other, and that Indiasees from China; these dynamics have nothing to do with ACI. ACI's critics maintain that designing new nuclear weapons tailored for use against targets in nonnuclear weapon states would undercut U.S. nuclear nonproliferation efforts by in effect tellingthe world to do what we say, not what we do. These critics assert that the program is scarcely needed to improve U.S. ability to understand nuclear weapons developments made by rogue states or terrorists. U.S. nuclear weapons experienceaccumulated over the past six decades provides ample information for interpreting intelligence cluesconnected with the design and fabrication of such weapons. Nor is ACI needed to improve U.S.ability to understand Russian or Chinese nuclear weapons programs. The Stockpile StewardshipProgram has greatly increased U.S. weapons knowledge, arguably placing this nation in a betterposition now to interpret intelligence data on Russian and Chinese nuclear programs than it was adecade ago. Another argument is that rogue states want nuclear weapons to deter U.S. nuclear forces. A North Korean statement of August 2003 makes this point: The Bush administration openly disclosed its attempt to use nuclear weapons after listing the DPRK as part of 'an axis of evil' and a target of a'preemptive nuclear attack.' This prompted us to judge that the Bush administration is going to stifle our system by force and decide to build a strong deterrent force to cope with it. ... Our deterrent force ... is a means for self-defence to protect oursovereignty. (128) Thus, it is argued, nuclear weapons designed to threaten key targets in rogue states will only accelerate development of nuclear weapons by those states. Does ACI offer unique value for the nuclear weapons enterprise? ACI's proponents believe that the United States must retain weaponsdesign capability because new weapons might be needed in the future, such as to attack specifictargets or to replace current weapons that deteriorate beyond the point of repair. To that end, it isfurther argued, the United States should avoid a situation in which it needs a new weapon yet no oneat the labs has had the experience of designing one. Supporters see ACI as complementing the Stockpile Stewardship Program. Maintaining existing weapons involves predicting, detecting, and fixing problems with existing weapons. Designing newweapons, however, arguably involves different skills and thought processes, just as editing differsfrom writing. A designer might be given a target and required warhead characteristics (yield, weight,compatibility with a specific delivery vehicle, etc.) and be tasked to design a warhead that producesthe required military effectiveness while minimizing collateral damage. Experienced weapondesigners from all three labs have stated to NNSA headquarters that the current StockpileStewardship Program (maintenance of the enduring stockpile) is not sufficient to provide the rangeof opportunities necessary to train and mentor the next generation of designers. (129) ACI, it is argued, will provide such training. The purportedly leaked NPR stated that ACI "will provide unique opportunities to train our next generation of weapon designers and engineers." (130) LosAlamos Director John Browne stated that ACI articulates a strategy for ... transferring nuclear warhead design knowledge, and exercising design skills. This initiative provides an outstanding opportunityfor the nuclear weapons complex to ensure that existing expertise is transferred to a future generationof stockpile stewards, and to extend the front-line weapons lifetimes beyond that of the designerswho designed and tested them. (131) ACI will also develop new links between the weapons community and DOD agencies. It is helpful, proponents believe, for some members of the weapons community to have personal contactswith members of the U.S. Strategic Command and the Defense Threat Reduction Agency, amongothers, to gain an understanding of what weapons might be of value to DOD, and to give DOD asense of what weapons technologies may be available. The harshest critics of nuclear weapons believe that there is no need to keep alive the skills to design new weapons. Current weapons, they argue, are more than sufficient, and their designs havebeen proven. Until nuclear weapons are abolished, these critics would maintain the existingstockpile; in their view, the multibillion-dollar stockpile stewardship program is excessive for thispurpose. This school of thought would reject ACI completely. Some critics of ACI see a value in maintaining design skills so as to improve U.S. ability to understand warhead problems that may emerge, to understand how changes made duringrefurbishment may affect weapon performance, and to design replacement weapons should that benecessary. Such skills can be maintained, they would argue, by designing weapons similar to currentones rather than designing new types of weapons. That approach would not require ACI. Critics would question training as a justification for ACI. The number of people trained by ACIis very small, and there are already training programs for junior staff. In October 1998, Sandiastarted an Intern Program, a two-year course for new employees on the nuclear weapons programand Sandia's role in it. In October 1996, Los Alamos started the Theoretical Institute forThermonuclear and Nuclear Studies on nuclear weapons design for new personnel in that field. (132) Some question whether ACI, as proposed for FY2004, offers a useful plan for maintaining weapon design capabilities. For example, Raymond Jeanloz, Professor of Earth and PlanetaryScience at University of California, Berkeley, and a member of the University of CaliforniaPresident's Council, (133) argues that repackagingan existing bomb with no work on the nuclearexplosive component (RNEP), working on low-yield designs (an area extensively studied in the past,including with underground tests), or other ideas proposed for ACI amount more to reworking oldground than to significantly exercising design activity. (134) There is no need for new links between DOD and the nuclear weapons establishment, in the critics' view, because several DOD-DOE groups have been in existence for many years. Theseinclude the Nuclear Weapons Council, program officer groups, and the Stockpile Assessment Teamof Strategic Command's Strategic Advisory Group. For FY2004, the Administration requested $15.0 million to continue a study, which began in May 2003, of the Robust Nuclear Earth Penetrator, or RNEP. The NDAA provided the amountrequested, while the EWDAA provided $7.5 million. The FY2005 request is $27.6 million. The RNEP study, part of the Advanced Concepts Initiative, is examining the desirability and feasibility of modifying an existing B61 or B83 bomb to enable it to penetrate into the ground beforedetonating. By so doing, a weapon of specified yield would have a much greater effect againsthardened and deeply buried targets -- such as are used in some rogue states to protect key assets --than would a nuclear weapon of the same yield burst on the Earth's surface. Modification wouldmainly involve strengthening the weapon's case, rather than changing the nuclear explosive package. In the 1990s, DOE conducted a similar modification, converting some B61 bombs into B61-11 earthpenetrators, a modification that did not require nuclear testing. If NNSA converts B61s or B83s intoRNEPs, current plans envision that the conversion would not require nuclear testing. While the histories of earth penetrator weapons and the Spratt-Furse ban on low-yield R&D are intertwined, repeal of that ban does not necessarily open the door to RNEP. The ban applied onlyto weapons under 5 kt; RNEP, if it proceeds, would be a modification of the B61 bomb or the B83bomb, both of which are available in a number of yields, with the maximum said to be far above 5kt. Further, both have been in the stockpile for many years. Even if they had yields only below 5kt, the ban applied only to weapons that had not entered production by November 30, 1993. (135) Structures can be hardened and deeply buried in an attempt to withstand an attack by conventional munitions. Such structures may be used to protect leadership, biological agentproduction facilities, nuclear weapon storage sites, and other strategic targets. Reports referencesuch facilities in Iraq, North Korea, and Iran. (136) A DOD-DOE report indicates that thousands of suchstructures exist worldwide, many in nations that do not pose a threat to the United States. (137) While special operations forces or precision-guided conventional bombs might defeat deeply buried structures by attacking power supplies, ventilation systems, and exits, these structures wouldprobably have backup power supplies, escape tunnels, etc. Accordingly, destruction would be a surermeans of completely eliminating the threat they pose. Facilities at shallow depths, perhaps 10meters, are vulnerable to destruction by conventional munitions that penetrate the ground. Destruction of facilities buried at greater depths may require a nuclear weapon. During the ColdWar, the United States deployed the B53 nuclear bomb, a weapon said to have a yield of somemegatons (thousands of kilotons), for such missions. A weapon of such high yield would create blastand fallout that would destroy surface structures and kill inhabitants out to many miles; in the currentenvironment, a President would be unlikely to order its use against a target in a rogue state so as toavoid killing very large numbers of civilians. As C. Paul Robinson, President of Sandia NationalLaboratories, said, we would be self-deterred from using high-yield weapons. (138) At issue, insofar as the nuclear option is concerned, is how to destroy hardened and deeplyburied facilities with lower-yield weapons. Much of the energy of a ground-burst weapon isreflected back into the air. Scientists on both sides of the larger debate agree that a nuclear weaponthat penetrates even a short distance into the ground will transfer much more of its energy intoground shock, which can destroy buried targets. For example, Sandia reports that a 1-megaton(1,000-kiloton) weapon burst on the Earth's surface has about the same effect on buried targets asa 33-kiloton weapon detonated at 5 meters depth. Most of the payoff comes from burying theweapon several meters in the ground, especially for lower-yield weapons; burial beyond severalmeters produces diminishing returns. (139) Figure1 illustrates these points. Robert Nelson reportssimilar data. (140) Thus a lower-yield earthpenetrator weapon (EPW) can have the same effect onburied targets as a much higher-yield surface-burst weapon. This large reduction in yield, in turn,reduces fallout and blast damage. A common misconception is that detonating a weapon a fewmeters underground reduces fallout; in fact, a weapon of specified yield detonated at shallow depthin wet soil will create more fallout than if it were detonated on the surface. The reduction in falloutfrom lower yield, though, can offset the increase in fallout from a shallow subsurface burst. Continuing the example just noted, fallout with a specific intensity (150 rads in 24 hours for anunsheltered person) would, by one calculation, be generated over 2,700 square kilometers by a1-megaton surface-burst weapon, or over 150 square kilometers by a 33-kiloton weapon detonatedat a depth of 5 meters. (141) Figure 2 illustratesthese points (though it assumes individuals would besheltered). Lower-yield weapons, even EPWs, may not suffice to destroy all buried targets. StephenYounger, then Associate Laboratory Director for Nuclear Weapons, Los Alamos NationalLaboratory, wrote, "Some very hard targets require high yield to destroy them. No application ofconventional explosives or even lower-yield nuclear explosives will destroy such targets, whichmight include hardened structures buried beneath hundreds of feet of earth or rock." Indeed,"Superhard targets, such as those found under certain Russian mountains, may not be able to bedefeated reliably by even high-yield nuclear weapons." (142) Similarly, Robert Nelson wrote, "Alow-yield nuclear EPW would still only be able to destroy facilities relatively close to the surface ...Very large yield (>~100 kt) weapons are still required to destroy facilities buried under theequivalent of 100 m of concrete." (143) Even low-yield EPWs would generate much fallout. For example, photographs of two nuclear tests show the fallout cloud generated by low-yield weapons buried hundreds of feet with theemplacement hole sealed. A test named "Des Moines,"a 2.9-kiloton test conducted June 13, 1962,at the Nevada Test Site, was buried in a mountain. Pictures show a huge cloud of radioactive dust,with cars and pickups of spectators rushing away from it. Another test, "Baneberry," with a yieldof 10 kt, was conducted December 18, 1970, in a vertical shaft some 900 feet deep at the NevadaTest Site. (144) The fallout cloud rose about10,000 feet into the air, (145) and was tracked tothe Canadianborder. (146) According to DOE, "FollowingBaneberry, new containment procedures were adopted toprevent a similar occurrence." (147) The minimumdepth of burial for even the smallest test is 600feet. (148) An EPW, in contrast, would be buriedperhaps a few tens of feet and the path by which itpenetrated the earth would not be sealed. Fallout from such weapons would not be contained at all,and standard-yield EPWs under consideration would produce more fallout than low-yield EPWs. Improvements in accuracy also permit a reduction in warhead yield for attacking buried targets. Four Los Alamos scientists calculate that a moderately hard structure buried at shallow depth couldbe destroyed by a 15-kiloton weapon with an accuracy of 100 meters, or by a 0.5-kiloton weaponwith an accuracy of 5 meters, with both weapons burst on the surface. Earth penetration furtherreduces the yield needed. The combination of improved accuracy and earth penetration, they argue,sharply reduces the yield required and the collateral damage. (149) While the foregoing discussion has focused on technical aspects of nuclear weapon effects, it must be kept in mind that even low-yield earth penetrator weapons could, depending on thecircumstances, kill large numbers of people. The calculation for such a weapon burst nearDamascus, cited above, illustrates this point. Interest in destroying buried targets traces back to the early days of the Cold War when the Soviet Union first built underground command posts and missile silos. Current interest in EPWs foruse against HDBTs traces back to the Persian Gulf War, as is detailed in the earlier section onlow-yield R&D. This latter experience led to the development of the current EPW, the B61 mod 11, or B61-11. (B61 is the basic weapon, while the mod number indicates a modification, converting the bomb toa specific purpose, delivery by a particular aircraft, etc.) The modification involved a strong caseand some internal strengthening. Because it entailed only minimal changes to the nuclear explosivepackage, DOE did not conduct nuclear tests of the weapon. (150) DOE converted a small number ofolder B61-7 bombs to B61-11s in the mid- to late 1990s. The B61-11, however, has its limitations. The Nuclear Posture Review stated, according to purportedly leaked excerpts, that the weapon "hasa very limited ground penetration capability" and "cannot survive penetration into many types ofterrain in which hardened underground facilities are located." (151) The growth in number of buried targets and the weaknesses of the B61-11 led DOD and DOE to study RNEP. According to a U.S. Strategic Command officer, Our current arsenal, developed in the Cold War, was not designed to address this growing worldwide threat [of buried targets]. There are facilities todaywhich we either cannot defeat, even with existing nuclear weapons, or must hold at risk using a largenumber of weapons. As a result, both the Department of Defense and the Department of Energy,through the Nuclear Weapons Council, have approved a study of how to effectively counter thisthreat. This study of a Robust Nuclear Earth Penetrator (RNEP) will evaluate modifications toexisting nuclear weapons that do not require nuclear testing. (152) Linton Brooks, then Acting Administrator of NNSA, provided further details on the study: this study will examine whether or not two existing warheads in the stockpile -- the B61 and the B83 -- can be sufficiently hardened through casemodifications and other work to allow the weapons to survive penetration into various geologiesbefore detonating. This would enhance the Nation's ability to hold hard and deeply buried targetsat risk. (153) Thus RNEP would not necessarily be a low-yield weapon. John Gordon, then Director of the National Nuclear Security Administration, stated in 2002 that the emphasis is on "a more standardyield system called an enhanced penetrator ... There's no design work going on low-yield nuclearweapons." (154) The cited advantage of the higheryield is that while EPWs can destroy a number ofburied targets with less yield than a surface-burst weapon, increasing yield increases the radius ofdamage to buried targets, some of which may be too hard, or too deep, to destroy with a low-yieldweapon. In July 2003, NNSA provided further detail on this topic. The ongoing RNEP study willselect one of the two candidate bombs. The study aims to retain all existing capabilities. It is notpart of the study to create new, lower yields. (155) NNSA had planned to begin the RNEP study in FY2002 by redirecting $10 million from Directed Stockpile Work Research and Development, a program within stockpile stewardship. (156) As discussed below, however, FY2003 legislation had the effect of delaying this study into FY2003. For FY2003, the Administration requested funds to begin this RNEP study. The planned budget forthe study was $15.0 million a year for FY2003-FY2005, inclusive. Brooks said, "The RNEPfeasibility and cost study is currently scheduled for completion in 2006; however, we are looking atopportunities to reduce study time." (157) The House Armed Services Committee supported the FY2003 request. It included a provision calling for a National Academy of Sciences study on the short- and long-term effects on civilians andmilitary forces of an EPW, an above-ground nuclear explosion to destroy buried targets, and use ofconventional weapons to destroy WMD storage or production facilities. (158) Representative Markeyoffered an amendment on the House floor to bar permanently the use of funds to develop or test anuclear EPW, and to bar FY2003 funds for conducting a feasibility study of that weapon. Theamendment was defeated, 172-243, on May 9, 2002. (159) The Senate Armed Services Committee recommended eliminating funds for RNEP and requiring the Secretaries of Defense and Energy to report on RNEP, including military requirements,employment policy, targets, and ability of conventional weapons to "address" types of targets thatRNEP would hold at risk. (160) The conferencebill included the House provision for a NationalAcademy of Sciences study; as of August 2003, it appears that the study will be completed aroundApril 2004. (161) The conference bill fully fundedRNEP but barred obligation of FY2003 funds forit until 30 days after the report called for by the Senate Armed Services Committee had beensubmitted to the Armed Services Committees. DOD submitted that report in classified form onMarch 19, 2003; the study began on May 1, 2003, with a meeting of NNSA, DOD, and nuclearweapons laboratory personnel in Washington. The FY2003 Energy and Water DevelopmentAppropriations Act included the amount requested for Stockpile R&D, the category within DirectedStockpile Work that includes RNEP. (162) NNSAindicated that this measure provided the full $15.0million requested for RNEP. (163) For FY2004, the Armed Services Committees and their respective Houses included the full $15.0 million request in the defense authorization bills. The House rejected, 199-226, an amendmentby Representative Tauscher to transfer all $15.0 million from RNEP (and $6.0 million from ACI)to conventional technology for use against hard and deeply buried targets. The Senate tabled, 56-41,an amendment by Senator Dorgan to bar use of funds for RNEP, and adopted an amendment bySenator Nelson (FL) to require congressional authorization to start engineering development orsubsequent phases of RNEP. In action on the FY2004 energy and water development appropriations bill, the House Appropriations Committee recommended reducing RNEP funds to $5.0 million, for reasons notedearlier in the "Legislative Actions in the FY2004 Budget Cycle" section under ACI. The HouseAppropriations Committee recommended having RNEP funds support penetration by conventionalas well as nuclear weapons: The Committee directs that funding provided for the Robust Nuclear Earth Penetrator (RNEP) be used for research on the problem of deep earthpenetration through hard or hardened surfaces, including modeling and simulation of the use ofadvanced materials, and varied trajectories and speeds. The Committee further directs that theNational Nuclear Security Administration (NNSA) coordinate the RNEP research program withongoing programs at the Department of Defense relating to research on earth penetration tomaximize the dual-use applicability for both conventional and nuclearweapons. (164) The House agreed to this bill without amending the Weapons Activities account, which includes RNEP. The Senate Appropriations Committee recommended providing $15 million for RNEP. On September 16, as detailed under ACI, the Senate tabled an amendment by Senator Feinstein toeliminate all FY2004 funds requested for RNEP and adopted an amendment by Senator Jack Reedthat barred use of funds provided by H.R. 2754 for phase 3 or 6.3 or beyond foradvanced nuclear weapon concepts including RNEP. RNEP was at issue in the Energy and Water Development Appropriations Act conference. Action on it was of concern to many because, of the four initiatives, RNEP is the one closest todeploying a weapon in response to NPR guidance. Non-RNEP ACI studies are in early stages, andenhanced test readiness and rescinding the low-yield ban are not weapons programs. In contrast,RNEP, if it proceeds, would involve conversion of an existing weapon. Conversion, under thecurrent plan, would not involve nuclear testing, and would require a much smaller production effortthan would production of complete new weapons. Even if the conference decided to proceed withthe RNEP study, and if Congress later decided to proceed with the actual modification, deploymentwould not likely be quick; it took six years to develop the B61-11 and certify it for acceptance intothe nuclear stockpile, (165) though lessons learnedfrom that process might expedite deployment ofRNEP. The NDAA provided the funds requested for RNEP; conferees did not comment on it. THE EWDAA provided $7.5 million. Further, The conferees remind the Administration that none of the funds provided may be used for activities at the engineering development phases, phase 3 or 6.3,or beyond, in support of advanced nuclear weapons concepts, including the Robust Nuclear EarthPenetrator. (166) The FY2005 request document seems to cast serious doubt on assertions that RNEP is only a study. Beginning with the FY2005 budget cycle, NNSA presented a detailed four-year projectionalong with the current request; for RNEP, the figures are: FY2005, $27.6 million; FY2006, $95.0million; FY2007, $145.4 million; FY2008, $128.4 million; and FY2009, $88.4 million, for a five-year total of $484.7 million. (167) Further,the document states the performance targets for RNEPas follows: FY2005: "Complete 56% of scheduled RNEP Phase 6.2/6.2A activity." Further, "In FY2005, subsystem tests and a full system test of the proposed design will becompleted." FY2006: "Complete 100% of scheduled RNEP Phase 6.2/6.2A activity." FY2007: "Report results of RNEP Phase 6.2/6.2A to Nuclear Weapons Council [a joint DOD-DOE agency that coordinates nuclear weapon requirements, productionschedules, etc.] Obtain, if applicable, RNEP Phase 6.3 appropriate authorization. Complete initial25% of scheduled RNEP Phase 6.3 activity (if authorized)." FY2008: "Complete 65% of RNEP Phase 6.3 activity (if appropriately authorized)." FY2009: "Complete 100% of scheduled RNEP Phase 6.3 activity (if authorized). Complete 15% of scheduled RNEP Phase 6.4 activity (if appropriatelyauthorized)." (168) An NNSA manager responsible for the program maintained that the budget increase beyond FY2005 is an artifact of the budget process. He stated that the money was inserted in the out yearsas a "placeholder" to protect the option of proceeding with RNEP. Were this not done, it is arguedthat NNSA would face two choices that it deems unsatisfactory: (1) By the time the budget for onefiscal year is submitted, the budget for the next fiscal year is largely fixed; without the placeholder,a decision to proceed with RNEP could therefore not be implemented until the second fiscal year. (2) Alternatively, without the placeholder, a decision to proceed with RNEP could be implementedpromptly only by taking the needed funds out of other programs. Similarly, the move to Phases 6.3and 6.4 reflects how the program might be expected to advance if it proceeds. The official, however,indicated that no decision has been made on whether or not to proceed with RNEP pendingcompletion of the study. (169) The RNEP study was initially projected to cost $45 million -- $15 million a year for FY2003-FY2005. The numbers, however, have changed for each year. For FY2003, delay insubmission of a DOD study required by the FY2003 National Defense Authorization Act ( P.L.107-314 , Sec. 3146) delayed the start of NNSA's RNEP study; as a result, $6.0 million was spentof the $15.0 million appropriated. For FY2004, Congress cut the RNEP appropriation to $7.5million. For FY2005, the request is $27.6 million, vs. the $15.0 million originally planned. Finally,FY2006, not FY2005, will be the last year of the RNEP study; NNSA estimates the FY2006 requestat $30 million. The four-year total is about $71 million. Owing to the uncertainties of the program,NNSA could not, as of early March 2004, project an RNEP budget for FY2007-FY2009. According to NNSA, the study's cost has grown for a number of reasons. The $45 million did not take into account participation in the study by Y-12 Plant, which would make components ofRNEP, or of Pantex Plant, which would convert existing weapons into RNEPs; their participationadds some $2 million. DOE has imposed additional project management requirements that add $2million. The rest of the increase comes from a better definition of the requirements of the study,refinement of cost estimates, and an increase in surety (safety, security, and use control) of theproposed weapon. On the latter point, DOE requires that any modifications of a nuclear weaponlook for ways to increase its surety. (170) NNSAsays it has found ways to increase RNEP surety, andplans to do so. Critics are likely to view the outyear plan in the FY2005 budget request document as indicating an intent to proceed with RNEP. They may also question how the cost of the RNEP study grewsome 58%. Congress, the media, and others, however, have not generally had access to theinformation presented here on the RNEP budget. This report will add views of critics and otherswhen they become available. Would RNEP promote deterrence? In the post-9/11 world, a new set of threats has come to the fore, including threats from rogue statesseeking WMD. To deter rogue states, RNEP supporters maintain that the United States must holdat risk those assets that the leaders value most, and that in some instances RNEP may be the onlyway to do so. Everet Beckner, NNSA Deputy Administrator for Defense Programs, reportedlyopined: "If we've got serious enemies in the world, I would like them to be deterred as much aspossible by our military capabilities. ... I want them to be afraid of us." (171) Similarly, the HousePolicy Committee argued: Credible deterrence requires that the President be able to hold at risk the things most important to an adversary who would seek to attack America. Deepunderground facilities, including hardened bunkers and hard-rock tunnels, provide effective havenfrom attack. ... The President should have options -- the options of conventional forces, of precision conventional weapons, and of nuclear weapons that are capable ofholding all targets at risk. (172) Critics question whether it is correct to apply the Cold War model of deterrence to rogue states, whose leaders might not be overly concerned about a U.S. nuclear attack on a few facilities in theirnation or about the casualties it would cause. They might even expect to benefit from worldwidecondemnation of the United States that an attack would likely generate. Furthermore, some RNEPcritics argue that the use of any nuclear weapon would not be credible because of the massivedamage and casualties that would result, and thus would not enhance deterrence. Would RNEP provide added military value? RNEP's supporters note that the Nuclear Weapons Council, a DOD-DOE organization chaired byDOD to coordinate nuclear weapons activities between the two agencies, approved the conduct ofthe RNEP study, and that DOD developed an Operational Requirements Document for RNEP thatgives the desired specifications and capabilities. (173) They assert that RNEP is not redundant with theB61-11 because of the latter weapon's limitations. Critics assert that nuclear EPWs are not needed. They note Brooks's statement, "we have no requirement to actually develop any new weapons at this time." (174) Representative Skelton stated,"the key to defeating hard deeply buried targets lies more in accuracy and penetration rather than theinherent explosive capability." (175) Manyconventional options are available for defeating suchtargets. (176) U.S. forces demonstrated the abilityof ground troops to attack tunnel complexes inAfghanistan and the ability of precision conventional ordnance to destroy underground bunkers inIraq. It would be better, in this view, to spend funds on improving the ability to destroy these targetswith conventional means rather than on nuclear weapons. Would fallout from RNEP bar use of the weapon? Critics of RNEP point to at least one claim by EPW supporters that low-yield EPWs would limitcollateral damage sufficiently to contemplate their use. (177) (RNEP could well have significantlyhigher yields.) Critics challenge this view. They argue that no EPW could penetrate deeply enoughto be fully contained, so that "the goal of a benign earth-penetrating nuclear weapon is physicallyimpossible," (178) as the descriptions of nucleartests Des Moines and Baneberry make clear. Forexample, Nelson calculates A one kiloton earth-penetrating "mininuke" used in a typical third-world urban environment would spread a lethal dose of radioactive fallout over severalsquare kilometers, resulting in tens of thousands of civilianfatalities. (179) Under these conditions, it is argued, RNEP would be unusable: the vast resulting collateral damage to noncombatant populations would presumably limit employment of the weapon to retaliatory, or "intra-war"preemptive use in scenarios of all-out warfare, involving another nuclear weapon-state with theresources to both construct such deeply buried targets and threaten the survival of the U.S. as anation-state -- that is, China and Russia. ... the weapon is strategically, legally, and morallyunsuitable for preemptive or retaliatory counter-proliferationwarfare. (180) Similarly, Representative Frank stated: ... we have said in Afghanistan, in Iraq, we are these days likely to be ... in an effort to rescue a people from an oppressive government. How welcomewill our wagon be when it comes to nuclear arms? Do we tell the people of Afghanistan, do notworry, we will free you from the Taliban by using nuclear weapons within your country. ... I thinkyou undercut the whole notion that America can be coming to the rescue of the victims ofoppression. (181) The argument over the extent of fallout RNEP would cause is, in the view of RNEP supporters,secondary to the key point, which, they contend, is that circumstances might call for the use of thisweapon. A President always has various military options, and no President since 1945 has chosento use nuclear weapons. Nonetheless, nuclear weapons might at some point be the only way toachieve a critical military objective, supporters argue. In that case, EPWs would be preferable in thisview because they could achieve the desired result at a lower yield, and with less fallout, thansurface-burst weapons. For some such uses, the B61-11 might suffice, but RNEP may be neededfor others. Would RNEP have an adverse effect on nuclear nonproliferation? On the issue of whether the United States should avoidresearching EPWs in order to lead the rest of the world by example, Representative Thornberryargued: It is an interesting line of argument to say that we make the world safer when we tie our hands behind our back, that the problem is with the United States,and that if we would just set a good example, the Saddam Husseins and the Kim Jong Ils and eventhe Putins would fall right in line ... The problem is not American strength. ... Peace comes whenAmerica is strong and when America has additional options. (182) The United States, in the view of RNEP's supporters, will not cause other nations to abandon WMD programs by abandoning RNEP. Nor, they suspect, would study, development, and deployment ofRNEP cause nations to pursue WMD programs; they assert that deployment of the B61-11 had nosuch effect, so they doubt that a second EPW would, either. Critics see grave proliferation risks arising from RNEP. They ask how the United States can preach to rogue states to restrain their nuclear programs while this nation is exploring new nuclearweapon capabilities. They see RNEP as tailored for use against rogue states, and fear that thatimplies a U.S. willingness to use the weapon for that purpose. They foresee serious consequencesfrom such use. As Representative Markey said, using one nuclear weapon "will destroy our moraland political credibility to end the spread of weapons of mass destruction, especially nuclearweapons." (183) In this view, it is inconsistentfor the United States to fight Iraq because of WMD andthen to develop WMD itself. Even studying RNEP, critics contend, would imply that the UnitedStates is considering its use, which could make nonnuclear weapon states accelerate their efforts toobtain nuclear weapons to deter U.S. attack on them, or to build new underground facilities at muchgreater depth. Will Targets Be Available for RNEP? Fewer nations hold potential future targets for RNEP in early 2004 than was the case a year earlier. Anygovernment that emerges in Iraq would in all probability be unable and unwilling to develop WMDfor many years. Libya is in the process of giving up its WMD; indeed, President Bush praisedColonel Muammar Ghadafi of Libya for making "the right decision" in ending its WMD programs. (184) Moving from the strategic to the tactical level, a successful attack on a deeply buried facility by an earth penetrator weapon would require precise targeting information. Yet events of the lastyear raise troubling questions on this score. Judging from press reports, U.S. intelligence failed todetect entire WMD programs in Libya, Iran, and North Korea, and detected chemical, biological, andnuclear weapon programs in Iraq that apparently did not exist. Given that record, critics may wellquestion whether intelligence can be sufficiently precise and reliable to pinpoint undergroundbunkers to attack. RNEP's supporters would note that Iran and North Korea pose a much more serious nuclear threat than did Iraq and Libya. Iran agreed in December 2003, under pressure from Britain, France,Germany, and Russia, to permit more intrusive inspections by the International Atomic EnergyAgency (IAEA). It did so in order "to prove that the Iranian nuclear program is for civilianpurposes," Gholam Reza Aghazadeh, Iran's Vice President, was quoted as saying. (185) Theinspections, however, discovered equipment and materials that could be linked to nuclearweapons. (186) Shortly after these discoveries,Iran appeared to begin pulling back from full disclosure. A senior Iranian official reportedly said that his country "has given enough answers to the [IAEA's]questions. ... We have other research projects which we haven't announced to the agency and wedon't think it is necessary to announce to the agency." (187) North Korea's statements have beencontradictory and confusing for some time, but press reports have presented evidence that that nationhas a program to produce highly enriched uranium, plutonium, and nuclear weapons, and that itreceived aid from Pakistan. (188) Regarding the ability of tactical intelligence to provide the basis for nuclear weapon use, RNEP supporters would note that the bar against such use is extremely high, but that many intelligenceassets, whether satellite imagery, communication intercepts, or information from defectors, wouldbe brought to bear to ensure that the target was in fact connected with WMD. During the Cold War, when the United States conducted nuclear tests on an ongoing basis, it took 18-24 months to prepare a typical test. With the end of the Cold War and the start of amoratorium on nuclear tests, the Clinton Administration required a U.S. ability to conduct a nucleartest in at most 24 to 36 months of a presidential order to conduct the test. DOD and NNSA,however, found that it would take close to 36 months to test, and they are uncertain as to theircontinued ability to test within even this length of time. Accordingly, they recommended "enhancedtest readiness," or moving to and maintaining a posture in which tests could be conducted in lesstime. They supported an 18-month test readiness posture. For FY2004, the Administration requested $24.9 million to maintain the existing posture and transition to the 18-month posture. (189) Thisfigure is in addition to funds to maintain the Nevada TestSite, where NNSA would conduct any nuclear tests. NNSA indicated that it has tightly integratedthe test readiness and enhanced test readiness programs into one program called "test readiness," sothat it would be difficult to split them into the two components. Of the requested $24.9 million,however, it would take at least $15.0 million to maintain the current 24- to 36-month posture. (190) TheNDAA provided the amount requested for test readiness; the EWDAA did as well, but confereesstated their expectation that NNSA would focus on restoring a 24-month posture before requesting"significant additional funds to pursue" an 18-month posture. Consistent with the legislation, NNSA plans to move toward a 24-month readiness posture in FY2004 and achieve it in early FY2005. It plans to reach an 18-month posture later in FY2005, andrequests $30.0 million for FY2005 for test readiness. Between 1951 and 1992, the United States conducted nuclear tests on a routine basis, with the numbers ranging from 96 in 1962, to 0 in 1959 and 1960 due to a moratorium, to 6 in 1992, the mostrecent year of U.S. testing, for a total of 1,030 tests. (191) As a result, the United States was alwaysprepared to test, although "18 months was a minimal time to design and prepare most tests." (192) AllU.S. tests since 1963 have been held underground, almost all at the Nevada Test Site. In October 1992, the United States began a moratorium on nuclear testing that continues to the present. Ambassador Linton Brooks, NNSA Administrator, said in December 2003, "The policy ofthe United States is that there is not now a need for testing." He further stated that he did not see areason to resume testing in the next two or three years. (193) During the era of testing, DOE and its predecessors conducted several types of nuclear tests, each with its own goals, schedules, and characteristics. Some are explained here; it is useful tounderstand the differences in order to place test readiness in context. Weapons modification and development. New-design warheads ( i.e. those with a new primary or secondary stage, typically required nuclear testing. Most U.S. nuclear testswere for weapons development. In addition, nuclear testing was occasionally used to understand aproblem in a stockpiled warhead, or to check a fix made to correct the problem, or for bothpurposes. (194) To conduct such tests, the labshad to design the test, fabricate a one-of-a-kind testdevice, fabricate the "diagnostics" (the elaborate set of instruments needed to gather the data), andemplace and seal the device and diagnostics in a shaft. These tests typically required 18 to 24months, (195) counting from when the test wasplaced on the test calendar until it was conducted. (196) Most tests used standard diagnostics; designing non-standard diagnostics added time. Developinga new warhead typically required several tests; some fixes required one test, others needed several. Most modification and development tests were conducted in vertical shafts in the ground; drillingthem typically took six to eight weeks. (197) Effects tests. Other tests examined how a nuclear explosion would affect military equipment, materials, electronics, nuclear warheads, etc., by exposing them to radiationfrom a nuclear explosion. These tests typically used a low-yield nuclear device designed to be areasonably predictable radiation source; in these cases, design and instrumentation of the deviceitself were not at issue. The experiments required elaborate preparation, such as creating a vacuumchamber to test how x-rays would affect satellites. Effects tests typically used horizontal tunnels andexperimental chambers bored into a mountain; excavation of the site for one such test, using threeshifts a day, might take a year. (198) Planning theexcavation, emplacing the experiments, and sealingthe tunnels took added time. Such tests were "inherently a two to three year process." (199) A smallfraction of U.S. tests were of this type. Stockpile confidence tests. Beginning in the 1970s, DOE would pull a warhead from the field (e.g., a bomb deployed at a bomber base), modify it minimally as needed to makecertain that its yield would not exceed the 150-kt ceiling of the Threshold Test Ban Treaty and tomake it compatible with testing procedures, and test it. The purpose was to assure that weaponsproduced in quantity and then deployed -- as distinct from one-of-a-kind devices built for weaponsdevelopment tests -- had the expected yield and met other basic performance criteria. These teststypically used diagnostics comparable to weapon development tests but less complex than for effectstests. They required less time for preparation than weapon development tests, typically about a year. They were conducted in vertical shafts, a little less than once a year. (200) Tests intended as political statements. When the Soviet Union terminated the 1958-1961 nuclear test moratorium in September 1961, the United States responded with a seriesof tests beginning two weeks later, (201) eventhough, by one analysis, "The United States was notprepared to conduct major experiments!" (202) All these tests had yields below 20 kt. (203) Suchtestsmight be done in the future to respond to a nuclear test by Russia or China. They would surely useexisting instruments and nuclear devices, and would probably involve experiments planned inadvance to maximize their technical value. NNSA finds that it may be feasible to conduct a test ofthis sort in as little as six months, though that posture would entail added costs compared to an18-month posture, would divert personnel from other tasks, and would require considerable advancepreparation. (204) At present, the only nuclear-related tests that NNSA is conducting are "subcritical experiments" (SCEs). CRS offers the following definition based on documents and on discussionswith DOE and laboratory staff: "Subcritical experiments involve chemical high explosives and fissilematerials in configurations and quantities such that no self-sustaining nuclear fission chain reactioncan result. In these experiments, the chemical high explosives are used to generate high pressuresthat are applied to the fissile materials." Twenty SCEs were held between July 1997 and September2003. SCEs study the behavior of plutonium. (205) One common purpose is to determine if materialchanges induced by radioactive decay of aged plutonium would degrade weapon performance. Allhave been held in a tunnel complex about 1,000 feet underground at Nevada Test Site. The UnitedStates sees them as consistent with the moratorium because they produce no fission chain reaction. They are also of value for maintaining the test site and exercising test-related skills. NNSA plans to conduct three SCEs in FY2004 and two or more in FY2005. (206) One of theFY2004 experiments, named "Armando," and two FY2005 tests, "Unicorn" and "Krakatau," willbe more complex than many of the earlier experiments. Unicorn, for example, will be the firstconducted in a vertical shaft dug from the surface. According to NNSA, Initial site preparation for this experiment is underway. This activity, and the means for emplacement of the experimental hardware into the vertical hole,will appear visually similar to those employed in underground nuclear tests conducted prior to the1992 moratorium. ... In addition to providing important information for stockpile stewardship, theUnicorn subcritical experiment will exercise key NTS capabilities not otherwise exercised inexperiments carried out at the U1a complex. (207) Some of the smaller, simpler SCEs held at the U1a complex may be replaced by the JointActinide Shock Physics Experimental Research Facility, a gas gun that accelerates a projectile tohigh speed and sends it into a mass of plutonium. (208) As a result, the schedule of subcriticalexperiments for FY2005 and beyond is uncertain. (209) In the future, the most probable type of nuclear test (as distinct from SCEs) would be to resolve a defect that emerged in a stockpiled weapon to remedy a safety or reliability problem. Such testswould probably be similar in form to weapon modification or development tests. Regardless ofpurpose, any future tests would be the first done in conjunction with the stockpile stewardshipprogram, which came into existence after the moratorium began. Preparation for testing wouldinvolve three parallel tracks: (1): Technical work involving the nuclear explosive. To fix a warhead problem, NNSA would "assess the problem, develop and implement a solution, and plan and executea test that would provide the precise information needed to certify the 'fix.'" (210) NNSA estimates thatit would take around 18 months to prepare this type of test. (211) As discussed below, some questionthis estimate. Technical preparation for other types of tests would take different lengths of time. Tests to make a political statement could be done in less than 18 months if the needed supportactivities were in place, and effects tests would take more than 18 months. (2): Support activities that can be done in advance to prepare for a generic test, such as conducting analyses of test safety, training personnel who can prepare the diagnosticequipment for a test, updating test-related agreements with federal and state agencies to ensurecompliance with federal regulations, and obtaining or locating heavy equipment needed to preparefor a test. (212) (3): Support activities for a specific test, such as designing and building instruments to acquire the needed data, and analyzing the safety of the particular test in itsemplacement site. Test readiness involves bringing the generic steps to the point where completing them and support activities for a specific test would take a specified length of time. An NNSA source indicatedthat the need to spend 18 months to complete the first track is what led NNSA to select 18 monthsas the test readiness goal. (213) When the 1992 moratorium started, it was unclear how long it would last. The legislation creating the moratorium permitted it to end no sooner than July 1, 1993, but President Clintoncontinued it several times in the next several years. At the same time, he considered the possibilityof a return to testing. His decision in August 1995 to press for a true zero-yield CTBT (as opposedto a treaty permitting nuclear tests of very low yield) was conditioned on several "safeguards,"actions that the United States would take consistent with the treaty in order to protect U.S. interestsdespite the loss of testing. Safeguard F was: The understanding that if the President of the United States is informed by the Secretary of Defense and the Secretary of Energy ... that a high level ofconfidence in the safety or reliability of a nuclear weapon type which the two Secretaries considerto be critical to our nuclear deterrent could no longer be certified, the President, in consultation withCongress, would be prepared to withdraw from the CTBT under the standard "supreme nationalinterests" clause in order to conduct whatever testing might berequired. (214) As a result, it was unclear how ready the nuclear weapons laboratories and the Nevada Test Site should be to conduct a nuclear test. Maintaining readiness to conduct a test promptly would increasecost at the test site and the labs, and require personnel to spend time on readiness rather than onongoing tasks. In a November 1993 Presidential Decision Directive, President Clinton decided tomaintain the ability to conduct a nuclear test in 24 to 36 months of a presidential order to test. Thisso-called test readiness posture was first established in FY1996. (215) Congress, the Administration, and others have expressed concern over the length of time needed to test. In January 1996, the Senate passed, 87-4, the resolution of ratification of the START IITreaty. The resolution included a number of declarations expressing the sense of the Senate. Declaration 12(E) included the following language: "The United States is committed to maintainingthe Nevada Test Site at a level in which the United States will be able to resume testing within oneyear following a national decision to do so." (216) In its FY2001 report, the Foster panel argued thatthe current posture of 24 to 36 months was "excessive" and that the United States should not be ina position where increasing test readiness was viewed as indicating a major problem with the nucleararsenal. It noted some reluctance by NNSA and DOD to increasing test readiness because the testmoratorium seemed unlikely to end, so that funds spent on test readiness would not be available forother projects. It recommended a test readiness posture of 3-12 months, and having devices fornuclear testing available on short notice. (217) The purportedly leaked December 2001 Nuclear PostureReview asserted that "the current 2-3 year test readiness posture will not be sustainable as more andmore experienced test personnel retire" and "the 2-3 year posture may be too long to address anyserious defect that might be discovered." (218) There was some uncertainty over the state of test readiness. In October 1999, Secretary of Defense William Cohen, in a statement before the Senate Armed Services Committee, maintained,"We would be able to conduct a nuclear test within 18 months to two years of a decision to do so." (219) The next day, Secretary of Energy Bill Richardson testified, "The test site is up and running andready -- while we are capable of fielding a well instrumented test in 18 to 24 months, my scientiststell me we, if pressed, could conduct a simple test in less than one year." (220) DOD and NNSA conducted several studies between 1999 and 2003 to determine the time needed to conduct a nuclear test and what the optimum posture should be. Based on these studies, NNSA concluded that because of a loss of expertise and degradation of some specific capabilities, the U.S. would more likely require about 36 months to test,with less confidence in being able to achieve the 24-month end of the range. Furthermore, as timepasses without further action, the 36-month posture is viewed as increasingly atrisk. (221) While NNSA's Nevada Site Office, which manages the Nevada Test Site, received funds in 2001 and 2002 to buttress the 24- to 36-month test readiness posture, NNSA and DOD favoredenhancing test readiness. In 2002, they decided to plan to move to an 18-month posture. TheNuclear Weapons Council endorsed this transition in September 2002, and on March 13, 2003,NNSA provided Congress a notification of intent to make this transition. (222) Congress provided $15million, the requested amount for enhanced test readiness, in H.J.Res. 2 ( P.L. 108-7 ),the Consolidated Appropriations Resolution for FY2003. (223) In action on the FY2003 National Defense Authorization Act, P.L. 107-314 , a provision in the House bill required the Secretary of Energy to report, with the FY2004 budget submission, on a planand budget to enhance test readiness, specifically the time and budget for a one-year test readinessposture. The Senate bill had no similar provision. The conference bill contained a provision,Section 3142, as follows: SEC. 3142. Plans for Achieving Enhanced Readiness Posture for Resumption by the United States of Underground Nuclear Weapons Tests. (a) Plans Required. -- The Secretary of Energy, in consultation with the Administrator for Nuclear Security, shall prepare plans for achieving, not later than one year after the dateon which the plans are submitted under subsection (c), readiness postures of six months,12 months, 18 months, and 24 months for resumption by the United States of undergroundnuclear weapons tests. (b) Readiness Posture. -- For purposes of this section, a readiness posture of a specified number of months for resumption by the United States of underground nuclear weaponstests is achieved when the Department of Energy has the capability to resume such tests,if directed by the President to resume such tests, not later than the specified number ofmonths after the date on which the President so directs. (c) Report. -- The Secretary shall include with the budget justification materials submitted to Congress in support of the Department of Energy budget for FY2004 (as submitted withthe budget of the President under section 1105(a) of title 31, United States Code) a reporton the plans required by subsection (a). The report shall include -- (1) an assessment of the current readiness posture for resumption by the United States of underground nuclear weapons tests; (2) the plans required by subsection (a) and, for each such plan, the estimated cost for implementing such plan and an estimate of the annual cost ofmaintaining the readiness posture to which the plan relates; and (3) the recommendation of the Secretary, developed in consultation with the Secretary of Defense, as to the optimal readiness posture for resumption by theUnited States of underground nuclear weapons tests, including the basis for thatrecommendation. The conference report further "[encouraged] the Secretary of Energy to submit plans for achieving and the cost of achieving and maintaining the recommended test readiness posture with, or as partof, the report required by the provision." (224) The required report, with a cover date of April 2003, recommended a test readiness posture of 18 months; estimated that achieving this posture by the end of FY2005 would cost $83 million forthe three-year transition period and that sustaining it would cost $25-$30 million a year thereafterfor resources unique to nuclear testing, vs. about $15 million a year for this purpose for the currentposture; assessed that the erosion of expertise over time due to retirements and the long time sincethe last nuclear test make the 24-36 month posture more likely a 36-month posture, with even that"viewed as increasingly at risk"; and argued that a 6-12 month posture would require "a substantialdiversion of personnel and facilities at the laboratories and production plants," and at the shorter endof that posture "would represent a major redirection of the stockpile stewardship program." (225) NNSA also noted that it costs some $225 million a year to support general requirements at theNevada Test Site such as infrastructure, personnel, and equipment. In S. 1050 , Section 3132 required the Secretary of Energy to achieve an 18-month nuclear test readiness posture by October 1, 2006, and to maintain that posture thereafter. If as aresult of the review for the report required by P.L. 107-314 , Section 3142, the Secretary, inconsultation with the Administrator for Nuclear Security (the head of NNSA), determined that aposture other than 18 months was preferable, the Secretary "may, and is encouraged to, achieve andthereafter maintain" that posture, and shall submit a report stating the preferred posture and thereasons for it. NNSA's report on test readiness, however, indicated a preference for 18 months. In H.R. 1588 , Section 3116 permitted DOE to obligate not more than 40 percent ofFY2004 funds for nuclear test readiness until 30 days after DOE submitted the report required by P.L. 107-314 , Section 3142. NNSA submitted that report, dated April 2003. There were noamendments to these provisions, or any others on enhanced test readiness, in the House or Senate. The House Appropriations Committee recommended eliminating the $24.9 million requested for "enhanced test readiness" on grounds of inadequate budget justification and dubious programcredibility. It was "concerned with the open-ended commitment to increase significantly fundingfor the purpose of Enhanced Test Readiness without any budget analysis or program plan to evaluatethe efficiency or effectiveness of this funding increase." (226) It questioned NNSA's ability to maintainan 18-month readiness posture during a test moratorium when that was the minimum time to preparea test when testing was ongoing. It linked budget and program issues: "the Committee will not spendmoney on a perceived problem when the Department [of Energy] has not provided a rationale or aplan that addresses the underlying problems inherent in maintaining a testing capability during atesting moratorium." (227) The House passed H.R. 2754 as reported from the committeewithout amending the Weapons Activities section, which includes test readiness. The Senate Appropriations Committee recommended providing the full $24.9 million requested, but did not comment on the readiness program. On September 16, the Senate rejected anamendment by Senator Feinstein on various nuclear programs, as detailed under ACI. One provisionof the amendment would have barred use of funds in the bill for modifying the test readiness postureof the Nevada Test Site to a readiness posture of less than 24 months. With the House having eliminated the $24.9 million requested for test readiness and the Senate having provided the full request, the appropriation amount was at issue. Complicating a decision,the House eliminated $24.9 million for "enhanced test readiness," while the Administrationrequested $24.9 million for "test readiness." Some of the requested funds were to maintain the 24-to 36-month posture and some were to transition to an 18-month posture. Yet the HouseAppropriations Committee expressed concern over the latter even as it "supports the continuedmaintenance of the Nevada Test Site." (228) Eliminating the $24.9 million would have eliminated fundsfor both postures. If conferees decided to reduce funds for test readiness, would they have eliminatedthe full request, as the House voted to do, or eliminated only the funds for moving to an 18-monthposture (perhaps $9.9 million), or settled on some other amount? (Note that the Nevada Test Sitereceives other funds. For example, the budget category "Nevada Site Readiness," for which DOErequested $39.6 million for FY2004, "[i]ncludes activities required to maintain the Nevada Test Site(NTS) that are not unique to the test readiness mission, but do support the stockpile stewardshipmission." (229) ) DOE's submission of the test readiness report rendered moot the limit on obligations in the House defense authorization bill and the provision in the Senate defense authorization bill regardinga test readiness posture of other than 18 months. Those provisions were not at issue in conference. While not a matter in dispute between House and Senate, authorization conferees could haveconsidered whether an 18-month test readiness posture should be achieved by October 1, 2006, asper the Senate bill, or by the end of FY2005, the date to which DOD and NNSA agreed. They couldalso have followed the House Appropriations Committee's lead and required DOE to provide a morecomprehensive justification before endorsing any approach. The NDAA conference report did not address test readiness. The EWDAA conference report provided the full funds requested, but changed the test readiness posture: The conferees recognize that test readiness activities in Nevada were allowed to atrophy during the last decade under the current nuclear test moratorium... However, the conferees expect the NNSA to focus on restoring a rigorous test readiness programthat is capable of meeting the current 24-month requirement before requesting significant additionalfunds to pursue a more aggressive goal of an 18-month readiness posture. (230) Thus the conferees, by basing their decision on the need for NNSA to restore a 24-monthposture before proceeding to an 18-month posture, simultaneously avoided the issue of what aspectsof test readiness would have been cut by reducing funds below the request; expressed their supportfor reversing the "atrophy" of the test program; pressed NNSA to "restor[e] a rigorous test readinessprogram"; implied that it would be technically difficult to restore an 18-month posture; reflectedconcerns expressed by the House Appropriations Committee, Senator Feinstein, and others aboutmoving to an 18-month posture; and left the door open to moving to that posture later. The FY2005 request for test readiness is $30.0 million. (231) As noted, conferees on the FY2004energy and water development appropriations conference report "expect" NNSA to move to a24-month posture before requesting "significant additional funds" to move to an 18-month posture.NNSA indicates that that provision does not restrict its actions on test readiness. It anticipatesreaching a 24-month posture in early to mid FY2005, and hopes to achieve an 18-month posture bythe end of FY2005. (232) Unlike ACI and RNEP,the budget document does not provide out-yearbudgets for test readiness. NNSA estimates, however, that it can maintain an 18-month readinessposture for $25 million a year once it has established that posture, which the FY2005 request wouldenable it to do. Is an 18-month test readiness posture desirable? Some see the current 24- to 36-month posture as adequate. In this view, enhanced test readinesswould divert resources, as well as the time of experts, to a task that is unlikely to be carried out, tothe detriment of the ongoing stockpile stewardship program that has so far enabled the United Statesto maintain its nuclear stockpile without testing. They believe that the current test readiness programhas sufficient means to maintain skills, such as subcritical experiments, simulations, and exercises. They point to a National Academy of Sciences panel that stated: We judge that the United States has the technical capabilities to maintain confidence in the safety and reliability of its existing nuclear-weaponstockpile under the CTBT, provided that adequate resources are made available to the Departmentof Energy's (DOE) nuclear-weapon complex and are properly focused on this task. (233) Some fear that enhancing test readiness could have adverse international consequences. Oneadvocacy group was "alarmed that the Administration and Congress would take steps towardresuming nuclear testing, which would undo decades of arms control and set the stage for a new armsrace." (234) Further, "U.S. resumption of full-scalenuclear testing would threaten the viability of theNuclear Non-Proliferation Treaty." Representative Markey and 55 House colleagues wrote to theHouse Appropriations Committee that they "are concerned that the proposed enhanced test readinessprogram will renew interest in testing among other nations." (235) Stewardship may not require an 18-month readiness posture, in the view of those opposed to shortening the posture, because test readiness could be improved on an ad hoc basis if needed. Itwould in all likelihood take months to convince the President and Congress that a test was needed. The interval between discovery of a problem and a political decision to test could be used forpreliminary planning for the test, reducing the time between the decision to test and the conduct ofthe test. The other main purpose for testing beside stockpile stewardship is development of new weapons. Those favoring the current readiness posture see an 18-month posture as irrelevant for thatpurpose. The idea that the United States can only respond to a particular threat by testing a newweapon in 18 months, and then producing and using it, is not credible in this view, given the massiveU.S. conventional and nuclear forces in being. Those who would enhance test readiness argue that the current posture is simply too long. Secretary of Energy Spencer Abraham said, "Should our scientists decide we cannot certify thereliability of our nuclear stockpile, we must be capable of conducting a nuclear test in a much shortertime frame than the current three years." (236) NNSA says that the 24- to 36-month posture has becomecloser to a 36-month posture, and even that is at risk as people formerly involved in the test programretire. (237) It is difficult to maintain skills thatwould be needed for a resumption of testing under a 24-to 36-month posture, it is argued, because that posture implies that test-related activities would onlybe a minor part of the workload for staff who would be responsible for conducting nuclear tests. Amore active test readiness program would sharpen their skills and help recruit people with skillsneeded for testing. It may even prove infeasible to stabilize the posture at its present unsatisfactorylevel as skills will erode. In this view, the choice would be between continuing current trends andreversing them. They dismiss charges that enhancing test readiness would lead automatically totesting; a decision to test would be decided separately by the President and Congress. Those who would improve test readiness divide into two groups. NNSA claims that 18 months is the optimal time: An 18-month posture is appropriate because this is the minimum time we would expect it would take, once a problem was identified, to assess the problem,develop and implement a solution, and plan and execute a test that would provide the informationneeded to certify the 'fix.' An 18-month posture also reflects what is cost effective while continuingto support other stockpile stewardship missions. (238) Others feel that 18 months is too long. As noted, the Senate called for a one-year test readiness posture and the Foster panel recommended a 3-12 month posture. Still others believe that changing the test readiness posture would have little practical significance because technical considerations determine the time needed to conduct various typesof tests. A press report quotes Raymond Jeanloz, a member of the former NNSA AdvisoryCommittee, on this point: The committee was told by the national nuclear laboratories that "the nation would be able to perform a test in 3 to 6 months" if the goal was simplyto produce an explosion, he said. "From the labs' point of view, until they know why they wouldhave to have a test to address some hypothetical technical problem, they don't know how long itwould take them. So this whole business of a three-year, or a one-and-a-half year, or a half-yeardelay before they can test is incredibly artificial," he said. (239) Is an 18-month posture feasible for stockpile stewardship orweapons development tests? As discussed earlier, tests to meet a political needcould be conducted rapidly, while some complex tests, such as effects tests, would probably takelonger than 18 months even with enhanced test readiness. Judging from history, such tests wouldbe rare. At issue would be the time to conduct the most likely types of tests, notably those to remedya problem in an existing warhead discovered through the stockpile stewardship program, or thoseto design new warheads. NNSA claims that an 18-month posture should be feasible. At the time of an active underground test program, 18 months was a minimal time to design and prepare most tests, and is therefore a reasonable indicatorof the time that would be required to prepare a device for testing if the details of the planned test arenot known in advance. (240) Critics respond that this argument is illogical. If it took a minimum of 18 months to prepare a test when the test program was in full swing, they ask, how can the nuclear test program expect toestablish that as a maximum after more than a decade without testing? In the intervening years, testexpertise has eroded through disuse, many people formerly in the test program have shifted to otherareas or have retired or died, fewer new staff have been trained with these skills than have left thetest program, construction crews would have to be found and trained, new diagnostic instrumentswould have to be designed to replace technology from 1992. Further, NNSA would have to meetregulatory standards for environment, safety, and health added since 1992. (241) It may be possible toreach 18 months eventually, but given the uncertainties, costs, and personnel issues, it is uncertainwhen that could occur. Debate over the four nuclear initiatives will in all likelihood continue for some years. Thisreport concludes by discussing some substantive and logical aspects of the debate that cut across thefour initiatives. The topics below speak to the nature of the debate in 2003 and may bear on it infuture years. Four small issues, or one large one? Supporters of the four initiatives argue that opponents are reading too much into the initiatives. They are, in thisview, unexceptional elements of a nuclear weapons program, each with its own justification. Supporters argue: lifting the ban on low-yield R&D simply permits scientists to study the full rangeof weapon issues, as is the case for scientists in all other nuclear weapon states; ACI is forearly-stage studies; and RNEP is just a study that at most could lead merely to adding a second typeof earth penetrator weapon to the U.S. inventory. A three-year test readiness posture is much toolong, and testing may be needed for other purposes, such as to check on a fix to a warhead type thatdeveloped a defect. As Secretary of Energy Spencer Abraham said, We are not planning to resume testing; nor are we improving test readiness in order to develop new nuclear weapons. In fact, we are not planning todevelop any new nuclear weapons at all. Our goal is designed to explore the full range of weaponsconcepts that could offer a credible deterrence and response to new and emerging threats as well asallow us to continue to assess the reliability of our stockpile withouttesting. (242) Domestic and foreign critics see these measures as parts of a whole -- a military policy with a lowered threshold against nuclear use. They contend: lifting the low-yield ban will enable pursuitof more-usable weapons; and, ACI will present the military with new weapon options. In turn,military requirements for these new weapons will lead to testing, and enhanced test readiness willpermit expedited testing and deployment of these weapons. They view RNEP as redundant, sincethe United States has another nuclear penetrator (the B61-11), conventional penetrators, and othernonnuclear options, but believe RNEP will make nuclear use that much more likely by giving theUnited States yet another nuclear option. From this perspective, these initiatives are consistent withother policy decisions, such as the Administration's policy of preemption, its willingness to use "allof our options," its disregard for negative security assurances, and its refusal to pursue the CTBT. Critics see this policy as extremely insensitive to world opinion at best, and potentially dangerous. Nuclear preemption and use: ambiguities and uncertainties. The Administration's policy statements leave a crucial uncertainty. In September 2002, The National Security Strategy of the United States of America stated, "Toforestall or prevent ... [attacks with WMD] by our adversaries, the United States will, if necessary,act preemptively." (243) And in December 2002,the National Strategy to Combat Weapons of MassDestruction stated, "The United States will continue to make clear that it reserves the right torespond with overwhelming force -- including through resort to all of our options -- to the use ofWMD against the United States, our forces abroad, and friends and allies." (244) These two statementsdo not specifically declare that the United States will use nuclear weapons preemptively againstpossible WMD attacks. Nonetheless, critics take them together as a sign that the Administration iscontemplating just such a course. Is the Administration willing to rule out preemptive use of nuclearweapons? It may prefer ambiguity on this issue, whether because it has not reached a decision oras a tactic to extend deterrence. But by removing ambiguity, declaring that it would not use nuclearweapons preemptively, the Administration could reduce fears worldwide about possible nuclear war. At issue for the Administration is deciding whether the benefits of resolving this ambiguity outweighthe costs. Will the new weapons deter? The Administration, expressing concern about the terrorist WMD threat, discusses a purpose of new ormodified nuclear weapons as being to counter WMD facilities. The Administration may wish toclarify how the nuclear initiatives -- or any military means, for that matter -- could deter or retaliateagainst a terrorist WMD threat. If the perpetrator is unknown, or is known but has no knownaddress, what targets would be attacked, and would new weapons offer any advantage for suchattacks? Are any assets of sufficient value to terrorists that holding them at risk might deter terroristattacks? If so, would current U.S. nuclear and conventional forces suffice for that purpose? Couldthe United States perhaps deter terrorist use of WMD by threatening to overthrow (usingconventional forces) regimes that support terrorism, or by threatening to destroy (using nuclear orother forces) facilities that these regimes see as critical? There is a more fundamental deterrence issue. Deterrence depends on holding at risk assets of great value to the leadership. But while the United States was able to calculate what assets neededto be held at risk to deter the Soviet Union (and vice versa), the United States cannot simply assumethat what deterred the Soviet Union would deter rogue states. The leaders of a nuclear-armed roguestate might calculate that the United States would not use nuclear weapons against them because ofthe risk of international opprobrium, or that U.S. nuclear weapons would not have a decisive effecton the regime because it could hide or bury its own WMD and the facilities of highest value to theleaders. They might be willing to accept the use of several nuclear weapons against their country,especially if they follow the U.S. debates and come to believe that the United States would only usea few low-yield weapons of limited effectiveness. Will research lead to testing, acquisition, and use? A key concern of opponents of nuclear testing is the prospect that ACI, RNEP, and low-yieldweapons development could lead to nuclear tests. One could imagine various ways in which theseprograms could lead to tests. Lifting the ban on low-yield R&D, for example, might lead to ACIdeveloping new types of low-yield warheads: earth penetrators, chemical and biological agentneutralizers, warheads with reduced neutron or enhanced gamma radiation output, and warheads withreduced electromagnetic pulse. Future military interest in these warheads would, in this view, leadinexorably to testing. Yet there are plausible arguments that testing would not be needed. The B61-11 penetrator was converted from a B61-7 bomb without testing, and the RNEP conversion anticipates converting anexisting B61 or B83 without testing. Those warheads are available in a number of yields; it may bethat a lower-yield option exists that would eliminate the need to develop a new-design EPW. TheAdministration has enough confidence in nonnuclear interceptors to withdraw from the ABM Treatyin order to deploy a system using them. Nuclear weapons tailored to destroy chemical and biologicalagents may not be needed. The ability to destroy these agents is arguably much more dependent onprecise intelligence than on weapon characteristics, some doubt the efficacy of nuclear weapons todestroy such targets, and some doubt that the advantages of avoiding contamination by chemical orbiological agents outweigh the disadvantages of contaminating an area with radiation. Beyond that,whether enhancing nuclear test readiness will lead to testing depends on policy rather than technicaljudgments on future weapons R&D. Some critics of the Administration's nuclear initiatives fear that studying nuclear weapon concepts or new weapons will lead to their use, but that result is far from inevitable, supporters reply. Nuclear weapons are an option available to the United States, but so are conventional forces,diplomacy, and economic leverage. The United States has had low-yield nuclear weaponscontinuously since the 1950s, and might have benefitted tactically from using them in the KoreanWar, Cuba, and the Vietnam War. Yet despite these military benefits and options, Presidentsrefrained from using these weapons. It appears, then, that nuclear weapons would only be used asa last resort. On the other hand, any new weapon would provide a President with a wider range ofoptions for nuclear use. A President might find options made available by current nuclear weaponsto be unacceptable, but a new weapon might tilt the tradeoff between costs and benefits in favor ofnuclear use. Any new weapon has limits to its military value. The claim that EPWs may be the only way to destroy certain hardened and deeply buried targets doesnot mean that any nuclear EPW will destroy any such target. Rather, nuclear EPWs would make adifference only against some specified range of targets. A bunker hardened to a given level andburied to depth X could be destroyed by a conventional EPW, and buried more deeply at depth Ycould not be destroyed by a nuclear EPW of 5 kilotons yield. Only if the facility is buried betweendepths X and Y would that EPW make a difference. The United States could increase the weapon'syield, permitting it to destroy the bunker at greater depth, but the target nation could counter byincreasing the hardness of the bunker, burying it deeper, or camouflaging its location. Further, theU.S. intelligence may not know details of the geology above the bunker or of the layout of a tunnelcomplex, both of which may greatly affect the weapon's effectiveness. Thus the weapon addsmilitary value over only a specific range of targets.

Summary: The Bush Administration completed its congressionally-mandated Nuclear Posture Review in December 2001. The review led to major changes in U.S. nuclear policy. It found that the Cold Warrelationship with Russia was "very inappropriate" and that this nation must be able to deal with newthreats. It planned to retain Cold War-era nuclear weapons, which would suffice for manycontingencies, though at reduced numbers. To complement these weapons so as to improve U.S.ability to deal with new, more dispersed threats in various countries, the Administration sought toexplore additional nuclear capabilities. Accordingly, the FY2004 request included four nuclear weapon initiatives: (1) rescinding the ban that Congress imposed in 1993 on R&D on low-yield nuclear weapons; (2) $6 million for theAdvanced Concepts Initiative (ACI) to begin certain studies of weapon-related science andtechnology; (3) $15 million to continue a study of the Robust Nuclear Earth Penetrator (RNEP), inwhich an existing bomb would be converted into a weapon able to penetrate into the ground beforedetonating to improve its ability to destroy buried targets; and (4) $25 million to enable the UnitedStates to conduct a nuclear test within 18 months of a presidential order to test, and for relatedpurposes, as compared with the current 24-36 month time that was set shortly after the end of theCold War. Congress acted on these requests in the FY2004 National Defense Authorization Act( P.L. 108-136 ), and acted on the latter three in the FY2004 Energy and Water DevelopmentAppropriations Act ( P.L. 108-137 ). For FY2005, the Administration requests $9.0 million for ACI,$27.6 million for RNEP, and $30.0 million for improving nuclear test readiness. These initiatives are controversial. Supporters claim that the first three initiatives would enhance deterrence, thereby reducing the risk of war, and that some weapons that might result fromthe initiatives could enable the United States to destroy key targets in nations that may pose a threat. Critics are concerned that these initiatives would lead to nuclear testing, increase the risk of nuclearproliferation, and make U.S. use of nuclear weapons more likely. Regarding enhanced test readiness,the Administration argues that nuclear testing might be needed, for example, to check fixes toweapon types with defects, and that 24 to 36 months is too long to wait; critics are concerned thatshortening the time to test could signal a U.S. intent to test, and that renewed testing could lead toa renewed interest in testing by other nations. This report provides the policy context for the four initiatives. For each, it then presents a description, history, FY2004 legislative actions, the FY2005 request (for all but low-yield R&D),and issues for Congress. It is designed for those who want a detailed introduction to the debate,those seeking arguments and counterarguments, and those looking for answers to specific questions. It will track congressional and executive actions on these initiatives through updates as developmentswarrant.