Richard A. Love

The Proliferation Security Initiative, 2003-2008: A New and Effective Model for Proliferation Prevention?

Richard A. Love

A thesis in fulfillment of the requirements for the degree of Doctor of Philosophy

School of Humanities and Social Sciences UNSW Canberra at ADFA

March 2017

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Date ……………………………………………...... Abstract The objective of this dissertation is to explore and evaluate the development and effectiveness of political commitments and the Proliferation Security Initiative (PSI) as proliferation prevention and international security tool. This study evaluates how PSI differed from other more traditional multilateral proliferation preventions activities and the degree to which it was a departure from conventional strategies at the time for countering weapons of mass destruction (WMD). The paper assesses in detail how the Bush administration changed from a platform largely rejecting multilateralism and international engagement, to a policy of reaching out diplomatically to other countries to persuade and ultimately develop a global initiative based on unenforceable political commitments. The research indicates that sweeping changes in the perceptions of the WMD threat due to 9/11 and the aftermath of two additional events, the So San interdiction and the rollback of A.Q. Khan Network, radically changed the Bush administration’s strategy for combating WMD proliferation. This dissertation will assess the degree to which PSI represents not just a change in policy but a change in process, will examine how this change came to be, and will assess what the impacts of the PSI process are.

The scope of this effort is to study the process of the development of PSI during the George W. Bush administration. Through the methodology of process tracing and participant / observer analysis, this dissertation provides a rich and “thick” description of the origins and development of PSI and the process that led to PSI’s conception and implementation. While much policy analysis is written on PSI and its relative value – what PSI got “right” or “wrong,” little is written on the process that led to it. PSI as conceived, developed and implemented, represents a unique opportunity to explore the maturation of an international regime by policy-makers hesitant to embrace multilateral solutions. Why did the Bush White House change its approach to WMD proliferation? What circumstances and who drove this change? These “how” and “why now” questions are addressed in this dissertation.

The Bush administration developed new tools such as the Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism due to their international reach, flexibility and responsiveness to WMD threats. As envisioned, PSI was operationally focused rather than policy or strategy focused, and engaged the international community to build more effective, legal, and operationally capable international structures that deterred and imposed costs and risks on would-be proliferators, be they state or non-state oriented. The process that led to PSI was less an intentional new model for proliferation prevention than a pragmatic response to keep pace with a rapidly changing proliferation environment. The study concludes that PSI was and is a new model, but one that exists alongside enhanced traditional tools. The four foundational concepts of PSI of non-binding political commitment, adherence to a set of principles, and consistent with domestic and international law are, in and of themselves, not new, but their application to WMD interdiction and the attention to operations is new. The old tools lacked an operational focus. PSI addresses this gap. While the Bush administration pursued tightening existing nonproliferation regimes, the application of PSI specifically to interdiction activities represented a new approach to proliferation prevention.

PSI was not only a change in policy, but a change in process. The Bush administration changed not only the policy but also the process of responding to WMD threats due to not only the September 11th attacks, but also subsequent events such as the So San incident, which caused the administration to change its perceptions of both the threat environment and the need for new tools.

Table of Contents

List of Abbreviations ...... 10

List of Tables ...... 12

Chapter 1: Introduction, Aims and Significance, Methodology and Questions to be Addressed 14

1.1 Aims and significance ...... 14

1.2 Why Does PSI as a Case in International Security Policy Matter? ...... 23

1.3 Methodology ...... 24

1.4 Key Questions to be Addressed ...... 37

1.5 Conclusions ...... 39

1.6 Organization ...... 39

Chapter 2: Proliferation Security Initiative Literature Review ...... 43

2.1 PSI as a Continuation of Existing Proliferation Prevention Regimes ...... 47

2.2 PSI Outside Existing Regimes ...... 56

2.3 Literature Critical or Suspicious of PSI ...... 64

2.4 Summary ...... 84

Chapter 3: The International Security and Proliferation Environment 2001-2008 ...... 86

3.1 Overview ...... 86

3.2 Global, Networked and Increasingly Private ...... 91

3.3 The Security and Threat Environment and the BBC China ...... 94

3.4 The Bush administration Attempts to Meet the Threat ...... 99

3.5 Nuclear Weapons ...... 101

3.6 Radiological Dispersal Devices ...... 105

3.7 Biological Weapons ...... 109

3.8 Chemical Weapons ...... 116

3.9 Proliferation Trends and Concerns during the Bush Administration ...... 120

3.10 The Bush administration View of Proliferation Trends ...... 128

3.11 From Proliferation Threat to Proliferation Prevention ...... 132

3.12 WMD Terrorism and the “Convergence Challenge” ...... 134

Chapter 4: The Proliferation Prevention Framework...... 138

4.1 Nonproliferation and Arms Control ...... 139

4.1.1 The Nonproliferation Treaty (NPT) ...... 140

4.1.2 The Endurance of a “Fragile” Agreement ...... 142

4.1.3 Challenges to NPT Regime ...... 144

4.1.4 Internal Challenges to the NPT ...... 144

4.2 Counterproliferation ...... 147

4.3 The Bush administration’s Proliferation Prevention Agenda ...... 149

4.4 The Bush administration and A National Strategy to Combat WMD...... 152

4.4.1 Assumptions ...... 152

4.4.2 The 2002 National Strategy to Combat Weapons of Mass Destruction ...... 154

Chapter 5: The Origins of PSI ...... 160

5.1 The Case of the M/V So San ...... 160

5.2 The Krakow Initiative ...... 164

5.3 The Paris Meeting ...... 166

5.4 The A.Q. Khan Network ...... 168

5.5 PSI Expands ...... 174

Chapter 6: Understanding PSI ...... 179

6.1 PSI and Counter WMD Strategy ...... 184

6.2 Meeting PSI’s Objectives ...... 190

6.2.1 Disposition and Disposal: the sad case of the M/V Monchegorsk ...... 196

6.2.3 The Lack of Information on Actual Interdictions ...... 198

6.3 Defining and Scoping Interdiction ...... 201

6.4 Sustaining PSI ...... 202

Chapter 7: Domestic Authority, International Law and PSI ...... 206

7.1 Enhancing States’ Domestic Authorities...... 206

7.2 Relationship under International Law ...... 209

7.3 PSI and the United Nations Convention on the Law of the Sea ...... 214

7.4 Freedom of Navigation...... 220

7.5 Enforcement ...... 222

7.6 Legal Arguments in Favor of PSI Action...... 225

7.7 Is PSI Legal? ...... 228

Chapter 8: PSI and Other Approaches to Proliferation Prevention ...... 229

8.1 Targeted Financial Measures ...... 229

8.2 Banco Delta Asia ...... 233

8.3 Statutory Origins for Treasury Department Action...... 235

8.4 Impact on United States – North Korea Relations ...... 238

8.5 Difficulties Releasing the BDA $25 million ...... 240

8.7 Inconsistencies in the United States’ Stance ...... 244

8.8 BDA and the Lessons from Unintended Consequences ...... 246

8.9 UNSCR 1540 and Other Initiatives ...... 247

Chapter 9: PSI and Proliferation Prevention ...... 251

9.1 PSI Success or Mirage – BBC China, Libya and A.Q. Khan ...... 251

9.2 Impact of the BBC China Interdiction ...... 254

9.3 WMD Terrorism ...... 256

9.4 Adapting the PSI Model to WMD Terrorism...... 257

9.5 Domestic Nuclear Defense Activities in Conjunction with International Efforts ...... 263

Chapter 10: Evaluating PSI ...... 265

10.1 The Bush administration, the WMD Threat and a Coherent Strategy ...... 265

10.2 What PSI Achieved ...... 270

10.3 Is PSI as a Sustainable Model: Key Questions ...... 274

Chapter 11: Conclusion ...... 277

Bibliography ...... 286

Books 286

Articles 294

Official Documents ...... 317

Annex 1: Proliferation Prevention Institutions and Organizations ...... 330

Nonproliferation ...... 330

Treaty on the Non-Proliferation of Nuclear Weapons (NPT): ...... 330

International Atomic Energy Agency (IAEA): ...... 331

Nuclear Weapons Free Zones (NWFZs): ...... 332

Zangger Committee (ZAC): ...... 333

Nuclear Suppliers Group (NSG): ...... 333

Australia Group (AG): ...... 334

Missile Technology Control Regime (MTCR):...... 334

Wassenaar Arrangement: ...... 335

Proliferation Security Initiative (PSI): ...... 335

United Nations Security Council Resolution (UNSCR) 1540: ...... 336

Nuclear Terrorism Convention: ...... 336

Global Initiative to Combat Nuclear Terrorism: ...... 337

Arms Control ...... 337

Limited Test Ban Treaty (LTBT): ...... 337

Intermediate-Range Nuclear Forces Treaty (INF): ...... 338

Strategic Arms Reduction Treaty (START): ...... 338

Comprehensive Nuclear Test Ban Treaty (CTBT): ...... 339

Strategic Offensive Reductions Treaty (SORT): ...... 340

New Strategic Arms Reduction Treaty (New START): ...... 340

Combined Approach ...... 341

Geneva Protocol: ...... 341

Biological and Toxin Weapons Convention (BTWC): ...... 341

Conference on Disarmament (CD): ...... 342

Cooperative Threat Reduction Program (CTR): ...... 342

Chemical Weapons Convention (CWC): ...... 343

Global Partnership Against the Spread of WMD: ...... 344

Global Threat Reduction Initiative (GTRI): ...... 344

Annex 2: PSI Timeline ...... 345

Annex 3: PSI Endorsing States ...... 354

List of Abbreviations

BDA Banco Delta Asia BWC Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction CBRN Chemical, Biological, Radiological and Nuclear CD Conference on Disarmament CTR Cooperative Threat Reduction CWC Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction DHS United States Department of Homeland Security DNDO Domestic Nuclear Detection Office DoD United States Department of Defense DPRK Democratic People’s Republic of Korea DTRA Defense Threat Reduction Agency EEZ Exclusive Economic Zone EIF Entry Into Force FATF Financial Action Task Force GICNT Global Initiative to Combat Nuclear Terrorism GNEP Global Nuclear Energy Partnership GTRI Global Threat Reduction Initiative IAEA International Atomic Energy Agency ICAO International Civil Aviation Organization IRGC Islamic Revolutionary Guard Corps ISIS Islamic State in Iraq and Syria M/V Merchant Vessel MTCR Missile Technology Control Regime

NAM Non-aligned Movement NATO North Atlantic Treaty Organization NBC Nuclear, Biological and Chemical NDU National Defense University NPT Nuclear Nonproliferation Treaty NWFZs Nuclear Weapons Free Zones OEG Operational Experts Group OPCW Organization for the Prohibition of Chemical Weapons PSI Proliferation Security Initiative RDD Radiological Dispersal Device ROK Republic of Korea SOIP Statement of Interdiction Principles SORT Strategic Offensive Reductions Treaty UNCLOS The United Nations Convention on the Law of the Sea UNSCR United Nations Security Council Resolution UNSCR 1540 United Nations Security Council Resolution 1540 USD United States Dollar WMD Weapons of Mass Destruction WMDT Weapons of Mass Destruction Terrorism

List of Tables

Table Page Table 1: Author’s participation in PSI Operational Experts Groups. 30

Table 2: Author’s participation in other Proliferation Security Initiative (PSI) 32 activities including exercises, seminars and workshops.

Table 3: Key Agreements in the Nonproliferation Regime 141

The Proliferation Security Initiative, 2003-2008: A New and Effective Model for Proliferation Prevention?

Today, the gravest danger in the war on terror, the gravest danger facing America and the world, is outlaw regimes that seek and possess nuclear, chemical and biological weapons. These regimes could use such weapons for blackmail, terror and mass murder. They could also give or sell those weapons to terrorist allies, who would use them without the least hesitation. This threat is new; America's duty is familiar. Throughout the 20th century, small groups of men seized control of great nations, built armies and arsenals, and set out to dominate the weak and intimidate the world.

George W. Bush, 2003 State of the Union Address1

America will continue to lead the world with confidence and moral clarity. We put together a strong coalition to help us defeat the terror. There's 60 nations involved with the Proliferation Security Initiative… I know you join me in thanking the leaders of those countries who have committed their troops to peace and freedom around the world. We'll continue to strengthen our alliances and work with our friends for the cause of security and peace. George W. Bush, 20042

1 Bush, George W. “State of the Union Address”, Text of President Bush’s 2003 State of the Union Address, The Washington Post, 28 January 2003, . 2 Bush, George W. “Remarks by the President at Pensacola, Florida Rally”, The White House, August 10, 2004. August 10, 2004, .

Chapter 1: Introduction, Aims and Significance, Methodology and Questions to be Addressed

1.1 Aims and significance

This dissertation evaluates the origins and development of the Proliferation Security Initiative (PSI) and assesses the degree to which PSI represents a departure from traditional proliferation prevention approaches and presents a new model for countering WMD proliferation activities in the future. The dissertation will also explore how PSI attempted to break free of traditional countering WMD strategies and move beyond frameworks built in and for a different Cold War era that proved unable to meet the threats in a globalized, interconnected and networked world. Much of the academic literature on PSI focuses on policy analysis such as: is the initiative “good” or “bad”; does it favor specific actors and is it “more fair” or “less fair” to some states or promotes some interests over others; does it target certain states and/or regimes; is it legal; and, should it be expanded or disbanded, among others?3

Little attention, however, is given to why PSI was needed given global security concerns specific to that time, what drove its conception and how it changed from initial idea to implementation. For example, while some commentators argue that the Bush administration was bent on unilateralist strategies, this thesis seeks to reconcile how internationalist constructs, such as PSI, the Global Initiative to Combat Nuclear Terrorism (GICNT), UNSCR 1540, the G-8 Global Partnership, the Six Party Talks, and efforts in the Nuclear Suppliers Group and

3 For example, see, Valencia, Mark. “Maritime Security Cooperation: The Politics of the Proliferation Security Initiative”, World Politics Review, September 14, 2010, http://www.worldpoliticsreview.com/articles/6401/maritime-security-cooperation-the-politics-of-the-proliferation- security-initiative and Ron Huisken. “The Proliferation Security Initiative: Coming in from the Cold”, APSNet Policy Forum, April 20, 2006, http://nautilus.org/apsnet/0613a-huisken-html/.

International Atomic Energy were conceived and embraced by the administration.4 In short, what is lacking in the academic literature and what this dissertation seeks to achieve is a more full and robust explanation of why PSI evolved at a specific point of time, what pressures were involved in its formulation and how a small set of like-minded states based on shared visions and values evolved into a 105 state activity based on a statement of interdiction principles, which were not even conceived of when PSI was announced as the Krakow Initiative in May 2003. The purpose of this dissertation is to trace in detail the process of PSI’s development. Through process tracing, my goal is to analyze whether PSI represents a traditional approach to proliferation, or a new model. If PSI represents a new model or is a continuation of traditional soft-power approaches, the dissertation will uncover, analyze, compare, and contrast the benefits and challenges PSI as a proliferation prevention tool encountered from conception through implementation.

PSI as conceived, developed and implemented represents a unique opportunity to explore the maturation of an international regime by policy-makers hesitant to embrace multilateral solutions. What began as eleven “like-minded states” eschewing universal objectives and wide state adherence and preferring something of a “close knit” mentality, ultimately resulted in 105 state endorsees with regional and global reach.5 The puzzle here is that upon gaining office in 2001, the Bush administration in action and declaratory policy clearly favored more unilateral efforts internationally over what was viewed as slow, least-common-denominator international compacts pursued through traditional treaties and agreements through, for example, the United Nations or other binding international forums. Additionally, the WMD threat environment had changed drastically since the fall of Eastern Europe in 1989 and the Soviet Union in 1991 and international institutions were viewed by the aadministration as failing to keep pace with these

4 For example, there is literature on what PSI is and how to implement it, see, Wolf, Charles, Brian G. Chow and Gregory S. Jones. U.S. Combat Commands' Participation in the Proliferation Security Initiative: A Training Manual, RAND, 2006. 5 As the endorsees of PSI grew, the original eleven states came to be known as the “core” states. These eleven “core” states were Australia, United States, Poland, France, Germany, Japan, the Netherlands, Portugal, Spain, and the United Kingdom. Durkalec, Jacek. “The Proliferation Security Initiative: Evolution and Future Prospects”, Non-Proliferation Papers, EU Non-Proliferation Consortium, No. 16, June 2012, pp. 6-7.

fast moving post-Cold War challenges. As evidence for the Bush administration’s distrust of international organizations, consider the cases of the United States opposition to the International Criminal Court,6 the United Nations Population Fund (UNFPA) (where the Bush administration cut $34 million in funding that Congress had appropriated to the UNFPA) and the often quoted remarks of Undersecretary of State John Bolton on the United Nations, that “If the United Nations secretary building in New York lost 10 stories, it wouldn’t make a bit of difference” and that “If I were redoing the Security Council, I’d have one permanent member: The United States.”7 Yet, the Bush leadership team certainly believed it had good reason to reevaluate international security policy priorities, tailor and focus efforts on vital national security interests and re-think how the US could best achieve strategic objectives with new plans, procedures and policies. Indeed, as early as September 2002, President Bush mandated such a renewed effort:

Defending our Nation against its enemies is the first and fundamental commitment of the Federal Government. Today, that task has changed dramatically. Enemies in the past needed great armies and great industrial capabilities to endanger America. Now, shadowy networks of individuals can bring great chaos and suffering to our shores for less than it costs to purchase a single tank. Terrorists are organized to penetrate open societies and to turn the power of modern technologies against us.

To defeat this threat we must make use of every tool in our arsenal -- from better homeland defenses and law enforcement to intelligence and cutting off terrorist financing. The war against terrorists of global reach is a global enterprise of uncertain duration. America will help nations that need our assistance in combating terror. And America will hold to account nations that are compromised by terror -- because the allies of terror are the enemies of civilization. The United States and countries cooperating with us must not allow the terrorists to develop new home bases. Together, we will seek to deny them sanctuary at every turn.

6 Kristof, Nicholas D. “Schoolyard Bully Diplomacy”, New York Times, October 16, 2005. For an interesting perspective on how the crisis in Darfur challenged the Bush administration’s stance on the International Criminal Court, see Hogemarch, Warren. “France Asking UN to Refer Darfur to International Court”, New York Times, March 24, 2005, . 7 “John Bolton Quotes: In His Own Words”, The Financial Times, December 4, 2006, .

The gravest danger our Nation faces lies at the crossroads of radicalism and technology. Our enemies have openly declared that they are seeking weapons of mass destruction, and evidence indicates that they are doing so with determination.”8

The new Bush administration came to the White House with its own ideas on the international security threat environment and focused heavily on the primacy of the state. States made the rules, had “return addresses” if they misbehaved and were the preeminent actors on the world stage. “Non-state actors” were not important since everyone and every organization was located in a state, and states ultimately were in charge. Yet, this strategy had its detractors. As described by Jonathan Chait in the Daily Intelligencer:

… the Bush White House was dominated by neoconservatives, who were ideologically fixated on the threat posed by states and dismissed the threat of non-state actors. The administration’s defenders tend to gloss over the wee problem of Bush’s abject failure before the attack by treating it as a passing transitional problem, a matter of getting one’s feet wet, often speaking of the Bush presidency as if did not really begin until September 12. This willfully erases the administration’s gross negligence before the attacks. It also ignores the reality that Bush and his closest advisers clung to their state-focused neoconservative dogma even after the attacks.9

The administration’s view of the primacy of the state was not unique to the Bush White House in the wake of September 11th. For example, the Washington Post columnist and political observer Charles Krauthammer noted in Townhall that:

8 “Full Text: Bush's National Security Strategy”, The New York Times, September 20, 2002, http://www.nytimes.com/2002/09/20/politics/full-text-bushs-national-security-strategy.html?mcubz=1. 9 Chait, Jonathan. “Fighting Terrorism Was the Biggest Weakness of the Bush administration”, The Daily Intelligencer, The National Interest, November 13, 2015, .

Terrorists cannot operate without the succor and protection of governments. The planet is divided into countries. Unless terrorists want to camp in Antarctica, they must live in sovereign states. The objective of this war must be to make it impossible or intolerable for any state to harbor, protect or aid and abet terrorists. The point is not to swat every mosquito, but to drain the swamp. The war begins in Afghanistan. The first objective must be to destroy the Taliban regime. Indeed, to make an example of the Taliban, to show the world--and especially regimes engaged in terrorism--that President Bush was serious when he told the nation that we make no distinction between the terrorists and the governments that harbor them. The take-home lesson must be: Harbor terrorists--and your regime dies.10

Given this mentality, it is understandable why the Bush administration turned from Afghanistan to Iraq in 2003. Iraq, according to the Bush administration was the center and proponent of terrorist activities against the West. The National Review rationalized this line of reasoning by noting that:

Since there was no direct connection between Osama bin Laden and Saddam, take away the security apprehensions following 9/11, and George Bush probably would not have taken the risk of invading Iraq. By the same token, had the 1991 Gulf War ended differently, or had the United Nations and the NATO allies continued to participate fully in the no-fly zones and the containment of Iraq, there likewise would not have been a 2003 invasion. The Iraq War was predicated, rightly or wrongly, on the notion that the past war with Saddam had failed and containment would fail, and that after 9/11 it was the proper time to end a sponsor of global terrorism that should have been ended in 1991 — a decision that, incidentally, would save Kurdistan and allow it to turn into one of the most successful and pro-American regions in the Middle East.11

10 Krauthammer, Charles. “It’s Time to Change Regimes”, Townhall, September 28, 2001, . 11 Hanson, Victor Davis. “Why Did We Invade Iraq? The subsequent acrimony derives from the general amnesia over why we invaded”, National Review, March 26, 2013, .

This perspective was reinforced by the administration, as Secretary of State Colin Powell argued before the United Nations:

We know that Saddam Hussein is determined to keep his weapons of mass destruction; he's determined to make more. Given Saddam Hussein's history of aggression ... given what we know of his terrorist associations and given his determination to exact revenge on those who oppose him, should we take the risk that he will not someday use these weapons at a time and the place and in the manner of his choosing at a time when the world is in a much weaker position to respond? The United States will not and cannot run that risk to the American people. Leaving Saddam Hussein in possession of weapons of mass destruction for a few more months or years is not an option, not in a post– September 11 world.12

The threat of acquiring WMD and the prospect of no-notice and perhaps immediate WMD use, coupled with the October 16, 2002 Congressional authorization of military force was sufficient to justify use of force under conventional as well as anticipatory self-defense customary international law principles.13

The key point here is that given the administration’s policy that favored unilateral action, evidence of hostility toward multilateral institutions and its articulated policy to rely on unilateral military approaches where diplomacy failed, especially to threats involving WMD, why did a President so critical of multilateralism initiate a multilateral approach to countering WMD? Why and how could a President who made the primacy of United States action a central part of his election strategy and unilateralism a key component of his national security platform as president turn to multilateralism? Not surprisingly, at the time of the creation of PSI, there were many who questioned the administration’s motivations, intentions and objectives. This

12 Powell, Colin. “Transcript of Powell's U.N. Presentation”, CNN, Thursday, February 6, 2003, .

13 Joint Resolution. Authorization for Use Of Military Force against Iraq Resolution of 2002, Public Law 107-243, 107th Congress, October 16, 2002.

skepticism was particularly pronounced among foreign international relations academics and policy makers.

So the paradox is why did the Bush White House change its approach to WMD proliferation? What circumstances and who drove this change? The academic literature is generally very skeptical of the possibility of change and of creating new institutions.14 Both were skeptical of PSI. Was PSI simply another international regime, like traditional, previous international regimes such as the Australia Group or a trade compact aimed at strengthening existing international counterproliferation efforts? Would its purpose ultimately be taken up by the United Nations or other existing international or multinational regime? Did it represent a new model or was it a hybrid of some sort? From the beginning, it looked like this association of eleven states was part diplomacy, part advocacy, combining a strange mixture of diplomacy and advocacy with operational know-how and military action. Was PSI merely a coordination and cooperation tool to harmonize concepts and discuss ways to enhance partner capacity in the post 9/11 era?

If PSI was a new model constituting something unseen before and a novel approach to an evolving and urgent perceived and real threat, then why and how did this change happen at that specific time, and overcome the obstacles to change?

Following the 9/11 attacks, the United States focused on combating terrorism and pursuing al Qaeda. However, the fear of terrorists acquiring and using WMD was unequivocally the “gravest danger” facing not just the United States but also the world. President Bush made this very clear in his 2003 State of the Union address:

Today, the gravest danger in the war on terror, the gravest danger facing America and the world, is outlaw regimes that seek and possess nuclear, chemical and biological

14 See, Bohman, James. “Continental Political Philosophy”, in Gaus, Gerald F. and Fred D'Agostino (eds.). The Routledge Companion to Social and Political Philosophy, 2012, pp. 158-162.

weapons. These regimes could use such weapons for blackmail, terror and mass murder. They could also give or sell those weapons to terrorist allies, who would use them without the least hesitation. This threat is new; America's duty is familiar. Throughout the 20th century, small groups of men seized control of great nations, built armies and arsenals, and set out to dominate the weak and intimidate the world.

In each case, their ambitions of cruelty and murder had no limit. In each case, the ambitions of Hitlerism, militarism and communism were defeated by the will of free peoples, by the strength of great alliances and by the might of the United States of America.15

While there are many key elements to President Bush’s State of the Union speech, two are particularly noteworthy. First, the President specifically links terrorism with nuclear, chemical and biological weapons and not only describes the threat in stark terms but also characterizes it as the “gravest danger.” The plain meaning of this statement is clear; the prospect of WMD in the hands of terrorists is not one of many threats, but “the” gravest danger - the one to be feared the most by not just the United States but the entire world. The importance of this statement by the President following 9/11 coupled with the Iraqi invasion of 2003 cannot be understated. His justification for the Iraq invasion was predicated on the fear of WMD and the prospect that the Saddam Hussein regime may give WMD to terrorists. From national security policy to international engagement to science and technology to acquisition strategies and organization to war planning and intelligence, all were now oriented to preventing the spread of WMD to terrorists and if they were used, on how to manage the consequences of potential catastrophic attacks. Protecting the homeland became paramount and the greatest re-

15 Bush, George W. “Text of President Bush's 2003 State of the Union Address”, Washington Post, January 28, 2003, . Emphasis added by author.

organization since the US National Security Act of 194716 took place with the establishment of the Homeland Security Council at the White House (on par with the National Security Council) and of course, the establishment of the Department of Homeland Security which merged 22 Federal agencies and over 240,000 personnel into one responsible executive department.17

Second, President Bush explicitly states that this threat is new. The attacks on September 11th were conventional but executed by a terrorist group whose home base was half-a-globe away using unconventional planning and execution. WMD in the hands of al Qaeda presented a vastly more dangerous and immediate new threat, and new threats justify new ways of doing business. With the re-organization of DHS, the administration established and Congress authorized and appropriated the necessary funds for the Domestic Nuclear Detection Office (DNDO). This office, which opened in April 2005, sought to enhance the United States’ domestic capability to detect and prevent nuclear or radiological material from entering the United States or if in the United States to identify, track and interdict these materials or weapons.18 As instituted, DNDO was a unique office in mission and staffing. It was a new bureaucratic tool to meet a new and unconventional threat. For example, it is staffed from across the US Interagency and has intelligence analysts working with military operators who are engaged with emergency responders and managers. In essence, DNDO attempted to bring

16 National Security Act of 1947, Public law 80-253, July 26, 1947. According to Steve Cambone, the significance of the National Security Act of 1947 was that it changed the Department of War to the Department of the Army and created the National Military Establishment, headed by a Secretary of Defense. It also created the Department of the Air Force, and in 1949 through legislation, the National Military Establishment was renamed the Department of Defense. Cambone, Stephen A. “The National Security Act of 1947– 26 July 1947”, in A New Structure for National Security Policy Planning, CSIS, 1998, pp. 228-32. 17 See, Perl, Raphael. “The Department of Homeland Security: Background and Challenges", Terrorism—Reducing Vulnerabilities and Improving Responses, Committee on Counterterrorism, Challenges for Russia and the United States, Office for Central Europe and Eurasia Development, Security, and Cooperation Policy and Global Affairs, in Cooperation with the Russian Academy of Sciences, National Academies Press, 2004, p. 176. 18 See, Defense Nuclear Detection Office, Department of Homeland Security, undated, .

together radiological and nuclear experts with law enforcement, first responders and the intelligence communities.19

1.2 Why Does PSI as a Case in International Security Policy Matter?

This dissertation provides a greater examination of the origins, development and evolution of PSI. This study explains and analyzes an attempt to break out of conventional thinking and organizational models to move beyond security frameworks of the Cold War. These were ill-suited and lacked the elasticity needed to check rapidly developing global and networked threats that could strike anywhere globally and deep in the heartland. It is also important since it evaluates how the Bush administration assessed key security policy and tools, identified a specific gap in capability (how to conduct WMD interdiction missions), evaluated existing tools and finding them lacking, developed, over time, a new framework outside of more traditional approaches to arrive at a new model. PSI is also an important case study since it evolved dramatically over time and unlike many initiatives, PSI’s endorsees were able to learn, grow and develop activities as events unfolded. Equally important are a few of the unique characteristics of PSI that arose from this process. The key guiding principles underpinning the foundation of PSI were the ability to be flexible, to be operationally focused (to get things done), to cooperate, coordinate and work together with like-minded states and to improve across the globe the ability to detect and interdict illegal shipments of WMD. PSI was to demonstrate resolve and capability and deter would-be proliferators (both state-based and non-state based) from engaging illicit WMD transactions and to slow WMD acquisition, development and fielding programs. While desiring widespread acceptance of the PSI concept, the original eleven states were more focused on effectiveness.20 As such, several live exercises and operational- level tabletop exercises were conducted almost immediately after the PSI foundational

19 “Fact Sheet: Domestic Nuclear Detection Office”, Department of Homeland Security, April 20, 2005, . 20 For a good article discussing PSI effectiveness including limitations and ways to enhance effectiveness, see, Valencia, Mark J. “The Proliferation Security Initiative: A Glass Half-Full”, Arms Control Today, June 2, 2007, .

announcement in Krakow. Importantly and from inception, PSI proponents explained that all PSI efforts were in compliance with relevant international law and a key primary purpose was to “raise the bar” by improving domestic laws which would support collaboration and cooperation to conduct interdiction activities.

Much of this dissertation will examine the process from creating broad PSI principles that led to the agreed upon Statement of Interdiction Principles and chart the initial endorsement of eleven states to endorsement by 105 states today. By exploring PSI’s development in detail, this dissertation will contribute to understanding the practical and policy processes that are involved in moving from policy formation to policy implementation, and the challenges associated with translating a political commitment and a broad statement of intentions and principles to an effective operationally focused and tactically effective activity that deters proliferation and, when needed, provides the framework for actual WMD interdiction operations.

1.3 Methodology

PSI is an important case study in threat analysis decision making and crafting novel tools in support of proliferation prevention, deserving of greater study in its own right. Yet, the topics of this study are also relevant and applicable today for academics and policy makers. More than a decade after PSI’s inception, new violent extremist organizations such as the Islamic State and al Qaeda affiliated groups seek to acquire and threaten to use weapons of mass destruction. ISIS creates improvised explosive devices, and acquired radiological material when it captured the University of Mosul, Iraq, in 2014.21

Considering the current use of chemical agents dropped in barrel bombs by helicopters in Syria, to the prospects of black market movement of WMD to dangerous adversaries, the

21 Rasheed, Ahmed, Aref Mohammed and Stephen Kalin. “Exclusive: Radioactive material stolen in Iraq raises security concerns”, Reuters, February 17, 2016, .

questions of which tools to use to counter WMD remain vitally important now, as are questions about the possibilities for change and the effectiveness of existing multilateral institutions to confront these and emerging challenges. From Brexit to NATO, politicians and International Relations scholars differ over the importance and effectiveness of international and multilateral regimes, and the possibilities for change.

Change is hard to study in any field, and the academic discipline of International Relations in particular struggles with analyzing, characterizing and identifying the factors that bring about change.22 Maryann Cusimano of the Catholic University of America, notes:

Change happens in fits and starts (punctuated equilibrium) and is constrained by the weight of existing organizational structures. Rapid change can occur unexpectedly if “a stable structure is stressed beyond its buffering capacity to resist and absorb [change],”23 but such examples are rare because institutions actively influence the environment to promote their own survival. More often, old institutions are retrofitted to do new tasks. Even though these structures may not be the most efficient or logical way to tackle a new problem, the existing structure has the advantage of being available: “Credit cards can be used to open doors.”24 United Nations peacekeeping troops may be used to fight famine in Somalia; commercial airlines may be used as weapons. Having the tool often leads to its use.

This dissertation will assess the degree to which PSI represents not just a change in policy but a change in process, will examine how this change came to be, and will assess what the impacts of the PSI process are. The proponents of PSI, such as Mark Shulman25 and Emma

22 See specifically, Cusimano, Maryann. Beyond Sovereignty: Issues for a Global Agenda, Wadsworth Publishing, 4th edition, 2010. 23 Quoting from Krasner, Stephen. “Sovereignty: An Institutional Perspective,” Comparative Political Studies, April 1988, pp. 66–94. 24 Ibid, 80. 25 Shulman, Mark R. “The Proliferation Security Initiative as A New Paradigm for Peace and Security”, Strategic Studies Institute, US Army War College, April 2006.

Belcher26 argue that change is iterative and based on evolving circumstances and, in many respects, detractors of PSI similarly agree that the process that led to PSI’s development was predicated on not only policy changes, but process changes as well.27 In other words, PSI as envisioned changed due to changes in the perception of the threat as well as shifts in perspectives of the process by the actors involved in proliferation prevention. Therefore, changed international circumstances require not just a changed policy for combating proliferation, but also a changed process. Fast and fluid threats require faster and more fluid responses than traditional, slow, universal membership-based international institutions.

This dissertation uses qualitative research techniques to undertake detailed analysis of a single case study.28 This dissertation will largely adhere to the case study method of process tracing as detailed by Alexander George and Andrew Bennett.29 George and Bennett explain process-tracing methodology as “attempts to identify the intervening causal process--the causal chain and causal mechanism--between an independent variable (or variables) and the outcome of the dependent variable.”30 Process tracing is based on the connections between the specific events of a case assessed against a hypothesis about how these connections are causally related. My hypothesis is that the Bush administration changed not only the policy but also the process of responding to WMD threats due to not only the September 11th attacks, but also subsequent events such as the So San incident, which caused the Bush administration leadership to change its perceptions of both the threat environment and the need for new tools.

26 Belcher, Emma. “The Proliferation Security Initiative: Lessons for Using Nonbinding Agreements”, Working Paper, Council on Foreign Relations, July 2011. 27 Onderco, Michal and Paul van Hooft. “Why is the Proliferation Security Initiative a Problematic Solution?” Chinese Journal of International Politics, 9 (1), Spring 2016, pp. 81-108. 28 This dissertation drew on the following scholarship in developing the case study methodology and adapting it to this dissertation and PSI: Goertz, Gary. Social Science Concepts: A User’s Guide, Princeton University Press, 2005, King, and Gary Robert Keohane, and Sydney Verba. Designing Social Inquiry: Scientific Inference in Qualitative Research, Princeton University Press, 1994, and Ragin, Charles C. Fuzzy-Set Social Science, University of Chicago Press, 2000. 29 George, Alexander L. and Andrew Bennett, “Case Studies and Theory Development in the Social Sciences”, Belfer Center Studies in International Security, The MIT Press, 4th Edition, 2005. 30 Ibid, 206.

The scope of this effort will be to study the development of PSI from the time the George W. Bush administration took office on January 20, 2001 until the end of his administration on January 20, 2009. Outside of the scope of this dissertation are, for example, the President Obama transition and their foreign policy positions leading up to his Prague speech in 2009.31 This time period was chosen in order to fully capture and explore both the policy formation and policy implementation phases of PSI, and the movement from a political commitment of heads of state to operational processes that resulted in the development of the Statement of Interdiction Principles, noteworthy interdictions such as the M/V BBC China, and the rapid expansion and organizational growing pains of a “successful” heads-of-state political commitment. This dissertation, focusing on tracing the process of PSI initiation and implementation, lends itself to qualitative research methods.

Through the methods of process tracing and participant / observer analysis, this dissertation provides a rich and “thick” description of the origins and development of PSI. As described by David Collier from the University of California at Berkeley:

Process tracing is a fundamental tool of qualitative analysis. This method is often invoked by scholars who carry out within-case analysis based on qualitative data…, Process tracing and causal-process observations gives greater attention to description as a key contribution, and emphasizes the causal sequence in which process-tracing observations can be situated. In the current period of major innovation in quantitative tools for causal inference, this reformulation is part of a wider, parallel effort to achieve

31 The Prague speech is critical as a key transition and international policy speech which set the Obama administration’s policy for proliferation prevention for the bulk of his presidency and specifically re-affirmed the United States’ commitment of the Proliferation Security Initiative. “We must also build on our efforts to break up black markets, detect and intercept materials in transit, and use financial tools to disrupt this dangerous trade. Because this threat will be lasting, we should come together to turn efforts such as the Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism into durable international institutions. And we should start by having a Global Summit on Nuclear Security that the United States will host within the next year.” Obama, Barak. “Remarks by President Barack Obama in Prague, Czech Republic”, The White House, April 5, 2009, .

greater systematization of qualitative methods. A key point here is that these methods can add inferential leverage that is often lacking in quantitative analysis.32

Collier also notes that “As a tool of causal inference, process tracing focuses on the unfolding of events or situations over time. Yet grasping this unfolding is impossible if one cannot adequately describe an event or situation at one point in time. Hence, the descriptive component of process tracing begins not with observing change or sequence, but rather with taking good snapshots at a series of specific moments. To characterize a process, we must be able to characterize key steps in the process, which in turn permits good analysis of change and sequence.”33 In order to offer “good snapshots at a series of specific moments,” this dissertation is organized chronologically, first describing the traditional proliferation frameworks and threat environments prior to and at the start of the Bush administration, then describing the early Bush administration, followed by the So San interdiction on the high seas and the A.Q. Khan proliferation network that arose in Pakistan. This is followed by the policy formation phase when PSI was initiated in 2003 and then traces PSI from its conceptual and initiation phase to implementation, to its growth, the bureaucratic challenges PSI faced during the time of rapid expansion and change and finally considers the implications to PSI when other priorities eclipse proliferation prevention and WMD interdiction on the world stage.

PSI as a case study utilizes multiple sources of evidence and multiple data collection techniques, including historical documents, archival records, transcripts of journalists’ and others’ interviews with policy makers, direct observation, and participant observation.

A key component of this dissertation will be based on personal and direct participant observation at the strategic, political, operational and, to a lesser extent, tactical elements of proliferation prevention generally and PSI specifically. Participant observation, according to

32 Collier, David. “Understanding Process Tracing, PS Political Science and Politics”, PS: Political Science and Politics 44, No. 4, 2001, pp. 823-830. 33 Ibid, 824.

DeWalt, DeWalt and Wayland is methodically conducted over a mid to long period of time, ranging from several months to many years, and even generations.34 In this study, the author was an observer and participant in United States and global proliferation prevention efforts from before the So San interdiction in December 2002 through the Bush and into the Obama administrations. This extended research time period means that the researcher is able to obtain more detailed and accurate information about the individuals, community, and/or population under study.35 Observable and hidden details can be better assessed and characterized over a longer period of time affording analysts the time to find and investigate deviations from what participants say from what happened and thereby not only to evaluate the policies that arose but also the process by which those policies were chosen and implemented. This allows for a more detailed and intimate understanding of process maturation than would result from a more formal process such as surveys, questionnaires or interviews where responses will be perhaps less likely to highlight conflicts between different aspects of the decision making process. As such, participant observation is based on an analytical examination of experiences observed while events are unfolding that are considered important to the central research questions.36

As a Professor and Senior Research Fellow at National Defense University from 2002 to 2016, my work for the Center for the Study of Weapons of Mass Destruction allowed me to participate in all aspects of proliferation prevention, from nonproliferation policy to counterproliferation operations and WMD consequence management. Starting in 2002, several counterterrorism projects brought me to WMD interdiction or the process of identifying, tracking and ultimately targeting illicit WMD transfers. This included maritime interdictions on the high seas of ships suspected of engaging unwittingly or illicitly in the transfer of WMD or WMD components. As a countering WMD expert and professor with a TS/SCI security clearance, I

34 DeWalt, K. M., B. R. DeWalt and C. B Wayland. “Participant Observation”, in H. R. Bernard (Ed.), Handbook Of Methods In Cultural Anthropology, AltaMira Press, 1998, pp. 259-299. 35 Ibid. 36 Emerson, R. M., R. I., Fretz, and L. L. Shaw. “Participant Observation and Fieldnotes”, in Atkinson, Paul, Amanda Coffey, Sara Delamont, John Lofland, and Lyn Lofland (eds.). Handbook of Ethnography, Sage Publications, 2001, pp. 356-357.

was able to follow the So San interdiction as it unfolded and assisted in determining what happened and possible missteps through a rigorous lessons learned process. During this time, I was part of a team that made recommendations for enhancing interdiction effectiveness. As such, at the request of US government partners across the Interagency, I began running workshops and tabletop exercises to develop “proof of concept” positions and ultimately supported bringing PSI from idea to global initiative. In the early days of PSI, I hosted the first US-based Operational Experts Group meeting at National Defense University in Washington, DC in 2003 and regularly participated, facilitated, and ran PSI meetings and exercises from 2002 to 2016. I participated in hundreds of PSI meetings and chaired senior-level Operational Experts Group meetings, bilateral and multilateral PSI exercises, Senior Leader Seminars at the 4-star and civilian equivalent level, facilitated PSI discussions with NATO, the Pacific Rim countries and multilateral forums such as ASEAN, and conducted dozens of bilateral PSI exercises and subject matter expert engagements with such countries as Japan, Thailand, South Korea, Australia, Mongolia, Norway, Germany, United Kingdom, United Arab Emirates, Spain, Italy, France, Colombia, Panama, and Jordan and Iraq. My role in these meetings varied widely, but generally I served as an unbiased outside proliferation prevention expert called upon to provide dispassionate advice and guidance. As a professor at NDU, I did not have an equity stake in the discussions or debate. No decisions would directly impact or affect my position at NDU and many international partners and interagency collaborators relied on my impartiality to move issues forward and frame them in terms relatable and understandable to a vast array of interests represented with the PSI community. At NDU and overseas, I acted as the “lead” or facilitator for senior and executive-level discussions that charted the course for PSI. I hosted numerous PSI events at NDU including the first United States hosted Operational Experts Group37 and served as Chairman for the first Pacific Region PSI Regional Operations Experts Group and as the lead

37 The first United States’ hosted operational working group was a foundational and important international conference where I briefed the assembled state representatives on ideas for upcoming substantive events including workshops and exercises. At the time, three sub-groups or working groups were established, one subgroup on legal issues, another on information sharing and a final one centered on the operational aspects of conducting interdictions. Initially, the latter group on interdictions focused on maritime interdictions and decision making structures.

facilitator for the first South East Europe Regional Operational Experts Group and exercise in Zagreb, Croatia and the first South America Regional Operational Experts Group, Seminar and Tabletop Exercise held in Miami.

Below is a short list of the official PSI activities I facilitated or participated in as a subject matter expert, ran a sub-group, or chaired all or part of the official meeting. Not included here are all of the initial, mid and final planning workshops and preparatory meetings, internal United States government planning meetings and other outreach activities. The scope of PSI afforded me the opportunity to work regularly with a number of Interagency stakeholders that included, inter alia, the Department of Defense including the Office of the Secretary of Defense, the Joint Chiefs of Staff, all the Defense Services, the Defense Threat Reduction Agency, Special Operations and the geographical combatant commands, the State Department, the Department of Justice, the Federal Bureau of Investigation, the Department of Energy, the Department of Commerce, the Department of Homeland Security, the Transportation Safety administration, the Federal Emergency Management Agency, the Secret Service, and the National Security Council. Meetings are separated by senior-level PSI Operational Experts Group meetings and other activities such as bilateral engagement meetings.

Operational Experts Group Meetings38

February 10-11, 2015 Operational Experts Group Intercessional Meeting (Germany) May 26-28, 2015 Operational Experts Group Meeting (Canada) May 2014 Operational Experts Group Meeting (Newport, Rhode Island, USA) May 29, 2013 Operational Experts Group Meeting (Poland)

38 Author participation was checked through the Under Secretary for Arms Control and International Security, Bureau of International Security and Nonproliferation (ISN), Proliferation Security Initiative and by the activities listed on the US State Department “Diplomacy in Action” Calendar of Events website available at and with the US Office of the Secretary of Defense, US Department of Defense.

September 2012 Operational Experts Group Meeting (Seoul, Republic of Korea) November 2011 Operational Experts Group Meeting (Berlin, Germany) June 9-10, 2011 Regional Asia-Pacific Operational Experts Group Meeting (Honolulu, Hawaii, USA) November 1-2, 2010 Operational Experts Group Meeting (Tokyo, Japan) May 12-14, 2009 Operational Experts Group Meeting and Western Hemisphere outreach workshop (Miami, Florida, USA) May 28-29, 2008 5TH Anniversary High-Level Political Leaders Meeting and Outreach Workshop (Washington, DC, USA) December 5-7, 2006 Operational Experts Group Meeting (Montreal, Canada) July 25-26, 2006 Operational Experts Group Meeting (Singapore) April 11-12, 2006 Operational Experts Group Meeting (Miami, Florida, USA) November 24-26, 2005 Regional Operational Experts Group Meeting for Europe (Hamburg, Germany) November 30-December 2, Operational Experts Group Meeting (Sydney, Australia) 2004 July 25-26, 2006 Operational Experts Group Meeting (Singapore) August 5-6, 2004 Operational Experts Group Meeting (Oslo, Norway) April 16-17, 2004 Operational Experts Group Meeting (Ottawa, Canada) December 16-17, 2003 Operational Experts Group Meeting (Washington, DC)

Table 1: Author’s participation in PSI Operational Experts Groups.

Other Proliferation Security Initiative (PSI) Activities including Exercises, Seminars, Workshops39

September 26-30, 2016 PSI Asia-Pacific Exercise Rotation (APER) Exercise Deep Sabre 2016 (Singapore) January 27, 2016 Mid-Level Political Meeting (Washington, DC) November 1-4, 2015 PSI Exercise Leading Edge (Qatar) August 27-28, 2015 PSI Post-endorsement workshop (Malaysia) July 13-17, 2015 Asia-Pacific PSI Outreach (Republic of Korea) May 6-7, 2015 PSI Regional Mediterranean workshop/TTX (Cyprus) August 3-7 2014 Exercise FORTUNE GUARD 2014 (Hawaii, USA) January 2014 Western Hemisphere Table Top Exercise (Miami, Florida, USA) November 20-21, 2013 Southeastern European PSI Table Top Exercise (Zagreb, Croatia) August 2013 PANAMAX 2013 (Panama City, Panama) May 28, 2013 PSI Tenth Anniversary High-Level Political Meeting (Warsaw, Poland) January 27-February 7, 2013 Exercise LEADING EDGE 2013: UAE hosted Maritime, Air and Land Interdiction Exercise. (Abu Dhabi, UAE) September 26-27, 2012 Exercise EASTERN ENDEAVOR 2012: Republic of Korea hosted Maritime Interdiction Exercise. (Busan, Korea) August 6-17, 2012 Exercise PANAMAX 2012: U.S. Southern Command- coordinated multi-national exercise with maritime PSI scenario injects. (Panama City, Panama and Miami, Florida, USA) July 11-12, 2012 Critical Capabilities and Practices Regional Event: Poland-hosted Regional CCP Workshop (Warsaw, Poland)

39 Ibid.

July 3-5, 2012 PACIFIC SHIELD 2012: Japan-hosted Air Interdiction Exercise (Sapporo, Japan) June 6-7, 2011 PSI Critical Capabilities and Practices Planning Conference (Honolulu, Hawaii, USA) October 28-29, 2010 PSI Regional Workshop: ROK-hosted PSI workshop (Busan, Korea) October 14-15, 2010 Exercise EASTERN ENDEAVOR: ROK-hosted maritime interdiction exercise (Busan, Korea) January 24-28, 2010 Exercise LEADING EDGE: UAE & U.S. hosted PSI exercise. (UAE) October 27-30, 2009 Exercise DEEP SABRE II: Singapore-led PSI maritime interdiction exercise. (Singapore) September 11-22, 2009 Exercise PANAMAX 09: U.S. Southern Command-coordinated multi-national exercise with maritime PSI scenario injects. (Panama, Miami) August 11-22, 2008 Exercise PANAMAX 08: U.S. Southern Command-coordinated multi-national exercise with maritime PSI scenario injects. (Panama & Miami) January 31-February 1, 2007 Proliferation Finance Workshop (Washington DC, United States) October 10-31, 2006 Exercise LEADING EDGE: U.S.-hosted CPX and maritime/ground interdiction exercise. (Persian Gulf) September 25-26, 2006 Maritime Industry Workshop (London, UK) May 24-26, 2006 Exercise ANATOLIAN SUN: Turkey-hosted combined air, land and sea CPX and LIVEX interdiction exercise. (Turkey) April 4-6, 2006 Exercise PACIFIC PROTECTOR 06: Australia-hosted Air / CPX interdiction exercise. (Australia) August 15-19, 2005 Exercise DEEP SABRE: Singapore-led maritime/ground interdiction exercise. (Singapore)

October 13-17, 2003 Exercise SANSO 03: Spain-led maritime exercise. (Western Mediterranean)

Table 2: Author’s participation in other Proliferation Security Initiative (PSI) activities including exercises, seminars and workshops.

As stated above, my participation in PSI events varied widely depending on the nature, audience, level of participation and objectives for each meeting. Generally, and for the purposes of my analysis as a participant observer, it is important to note that for each meeting, I played an important if not key or central role and participated in the concept formulation, agenda development and objectives for and during the planning stages through execution and after action review development. For all of the meetings listed above, I participated as either a chair, facilitator, subject matter expert, panel chair or discussant, workshop director or exercise team leader. In many of these meetings, I was part of the US delegation but for several, my role as chair, leader, facilitator and expert placed me in the capacity of “honest broker” representing the interests of all endorsing states and not merely those of the US delegation team interests. NDU as an institution is known and recognized globally for its excellence in strategic research and education and by leveraging the knowledge, expertise and thinking at NDU, I was able to bring a unique background and perspective to all formal, planning and preparation meetings I attended. During PSI events, I clearly and transparently identified myself as a researcher and professor from National Defense University, detailed my specific role in the meeting and presented myself as a practitioner and academic researcher writing on PSI and WMD proliferation prevention issues. My name, research identity and academic credentials were clearly identified on my name badges at all meetings.

My knowledge of PSI from concept to initiation through the implementation phase thus comes not only from my extensive study of external historical documents, but also from my personal participation in PSI and countering WMD meetings and activities from 2001 until the present. Prior to PSI, I served as a contractor for the US Army’s arms control element as a nonproliferation and arms control attorney and supported the ABM Treaty, Open Skies Treaty,

and as the legal expert for the Special Right of Access component to the Strategic Arms Limitations Treaty. I also taught courses and continue to do so today on security and nonproliferation studies and law at the US Army War College, The Catholic University of America and Georgetown University. In sum, since 1993, I have worked in the proliferation prevention field and studied the discipline from deterrence theory through operational interdictions and strategic planning.

Why is the Proliferation Security Initiative an important case study and why is understanding its policy implications and the process that brought it about compelling research? PSI is a novel departure from traditional approaches to proliferation prevention in many aspects. It was designed not to seek universal membership but to remain a loosely organized “activity”, not organized under the United Nations Framework or other international governing authority. PSI has neither a centralized governing body nor secretariat to implement political decisions, nor does it have a dedicated cadre of experts that can leverage “institutional knowledge” for future events. PSI is intentionally represented as a “political” commitment rather than a legal commitment and as such, does not require any compellence actions under international law. This allows each state to take action only when deemed politically justified according to each endorsing state’s interpretations of their own domestic and international laws, and to take action independently or in small associations. Thus, there are neither “whole-of-PSI” proliferation prevention tactical or operationally focused actions generally, nor specific weapons of mass destruction interdictions. This does raise the question over how governments interact and what objectives they are seeking to achieve and providing a qualified analysis of such decisions may be difficult to divine. For example, consider the difficulty in determining if a specific prevention tool such as PSI is effective. Is it effective solely based on its own merits or are other factors such as the NPT regime framework or diplomacy at the time to credit? While this paper acknowledges that proliferation is undoubtedly occurring, the worst envisioned following the strikes of 9/11 has not been realized. Does that suggest or even prove effectiveness and if so, to what degree or level? As noted by Maryann Cusimano, “Government organizations raise different expectations. We care about what they produce as well as how they produce it. In some

cases, what is produced is so nebulous (national security, for example) and hard to measure that greater emphasis and constraints are placed on the process (which can be seen and measured).”40

The key dilemma this body of research and paper seek to understand is why did an administration that successfully ran on a platform against multilateralism and multilateral engagement reach out diplomatically to other countries to persuade and ultimately develop a new global initiative in an area traditionally left to diplomacy? The research indicates that while there were changes in the WMD threat environment that led to new thinking on how to prevent and contain proliferation, there were two primary events that led to the establishment of PSI: first, the aftermath and political fallout of the So San interdiction and the uncovering and rolling- back of the A.Q. Khan network which led to a greater realization that WMD proliferation was occurring at the private actor level. The threat environment, and these two events and their implications, will be explored in great detail throughout this dissertation.

1.4 Key Questions to be Addressed

This dissertation will examine how did new proliferation prevention strategies emerge and why during the George W. Bush years, roughly 2001 through 2008. This includes not just PSI, but also United Nations Security Council Resolutions to bolster global proliferation prevention efforts and the imperative to challenge non-state proliferation actors. Essentially, the dissertation will first explore how the WMD threat was viewed during this timeframe. Specific issues that will be explored regarding the threat include how rising security concerns post 9/11, such as WMD terrorism and networked WMD trafficking, were viewed and how were they balanced with more traditional nonproliferation and counterproliferation strategies. Additionally, as traditional threats continued and concerns rose over emerging threats, how did the Bush administration seek to counter these threats and what actions were taken to meet them? Specifically, how did new initiatives emerge and why? For example, where do activities such as

40 Cusimano, Maryann. Beyond Sovereignty: Issues for a Global Agenda, Wadsworth Publishing, 4th edition, 2010.

PSI, the Container Security Initiative (CSI), Megaports, the Global Initiative to Combat Nuclear Terrorism and other initiatives fit into proliferation prevention?

Other aspects of proliferation prevention will also be addressed, such as how and how long did it take for a comprehensive strategy to emerge; how was PSI viewed by other actors outside of PSI such as by Kofi Anan and other United Nations leaders; how was PSI received by countries such as Egypt and the Non Aligned Movement, and other important maritime states? International and domestic legal issue will be addressed as well and the dissertation will investigate how, over time, PSI developed a coherent legal narrative that would be broadly accepted.

After addressing these and other aspects of PSI, it is hoped that readers will appreciate the complex challenges in developing new tools and strategies to counter weapons of mass destruction proliferation. What emerges from this dissertation is the conclusion that PSI is a novel tool and a model for addressing a complex proliferation threat environment, a model based on a set of principles that can be used for many security and other challenges we face today. The essence of the PSI model comprises the following: a political versus a legal commitment; focus on “rules of the road” and guiding principles versus a treaty based approach; seeking like-minded participation versus universality; punishing undesirable behavior by acting together but maintaining flexibility in how to respond – states only act to the degree they have the political will to do so; and maintaining flexibility to respond to specific problems versus establishing formal and rigid organizational structures.

This is a useful model for threats we face today and has been adopted as the preferred model to counter the threat of nuclear terrorism through the Global Initiative to Combat Nuclear Terrorism, an activity jointly sponsored by the United States and Russian Federation. Other areas currently under discussion that may include a PSI-like model are “rules of the road” or a “statement of principles” for cybercrime, financial crimes and even violent extremism. This paper will outline what PSI is, and is not, and how it developed, and to assess whether this model is exportable.

1.5 Conclusions

In conducting the research and analysis to support answers for the primary questions posed in the dissertation proposal, it became clear that the proliferation prevention tools that existed during the early Bush years failed dramatically to keep pace with the threat as it existed in the post 9/11 environment. Nonproliferation tools negotiated in the 1960s through the 1980s were state-focused, based on concepts of universality and most important, were never designed to handle the rise of non-state actors, be they al Qaeda, the A.Q. Khan network or even how the North Korean government funded its illicit activities through complicit actors such as banking through Banco Delta Asia. I conclude that having made this assessment, the Bush administration sought new tools to complement the old and moreover, despite the rhetoric, sought to strengthen the existing and more traditional tools as well. The new tools were to be more flexible, could respond to crises faster, were operational versus policy or strategy focused, and PSI was the first and at the center of that effort to develop an effective, legal, and operationally capable international framework that deterred and imposed costs and risks on would-be proliferators, be they state or non-state oriented.

1.6 Organization

This introductory chapter provides an overview of the importance of the Bush administration’s proliferation prevention approach and how it changed due to many variables over time. This chapter also outlines the research contained in this dissertation and the purpose, objectives, key questions to be addressed, and the methodology employed to answer these questions and to present some of the fundamental conclusions drawn from the research. Chapter 1 outlines the key themes to be explored and lays the groundwork for the chapters that follow.

Chapter 2 presents conclusions from the Proliferation Security Initiative literature review and focuses on three trends in the literature, namely; PSI as a Continuation of Existing Proliferation Prevention Regimes; PSI as an effort that exists outside the then-present

proliferation prevention security Regimes; and Literature Critical or Suspicious of PSI. Chapter 2 argues that most of the literature on PSI is in the form of policy briefs and policy assessments, but that there is a need for a deeper analysis of the key drivers for how PSI evolved and a greater appreciation of how PSI fits into the larger proliferation prevention scheme, and whether PSI represents a different approach to preventing proliferation. In sum, the literature demonstrates that the bulk of research and commentary focuses on policy analysis of PSI and almost no attention is given to why it was conceived and how the process was envisioned to combat a specific set of threats during a certain time period. All of these issues and questions comprise the core subjects of this dissertation and important reasons that this dissertation is needed.

To understand the international security and WMD proliferation threat environment that existed in between 9/11and May 31, 2003 when PSI was introduced as the Krakow Initiative, Chapter 3, The International Security and Proliferation Prevention Environment 2001-2008, provides an overview of a world increasingly global, networked and private where non-state actors have greater capacity to act on the global stage and access to ever greater and more dangerous resources. The chapter lays out the threat, analyzes how the Bush administration organized to meet the threat and specifically discusses how nuclear, radiological, biological and chemical weapons and their components were viewed as the “gravest danger.”

Chapter 4, The Proliferation Prevention Framework discusses the traditional nonproliferation and arms control frameworks that existed at the time and focuses on the Nonproliferation Treaty (NPT) and its associated nonproliferation regimes. Chapter 4 also highlights the challenges the Bush administration faced in trying to work with allies and partners to modify and change the existing regimes to counter specific international security threats in general, and weapons of mass destruction proliferation specifically. The chapter also compares nonproliferation to counterproliferation approaches and discusses how the Bush White House adopted a proliferation prevention agenda leading to the development and implementation of the first National Strategy to Combat Weapons of Mass Destruction.

In Chapter 5, The Origins of PSI, the motivations for developing PSI are explored. Here, the interdiction and subsequent release of the M/V So San, a North Korean freighter carrying SCUD missiles to Yemen and its release with all of its dangerous cargo intact, is explored. This case exposed weaknesses and gaps in the proliferation prevention framework and, following gaps in defense strategy following 9/11, led to a new United States National Security Strategy and United States National Strategy to Combat Weapons of Mass Destruction. The chapter concludes with an assessment of the expectations for PSI at the outset, how PSI evolved and how well it achieved those objectives. In sum, chapter 5 begins with the catalyst event that prompted a reassessment of proliferation prevention objectives and strategies at the White House, the Case of the M/V So San. The chapter then follows evolution from its announcement in Krakow through its rapid expansion triggered by the exposure of the A.Q. Khan Network.

In Chapter 6, Understanding PSI, the more practical aspects of PSI are explored. These include the challenges of dual-use components and technologies, what it means to be an “activity” and not an “organization”, and how to bridge a lofty concept with actually developing a workable and effective initiative that will generate wide-spread political support. Chapter 6 outlines how PSI became a key component of the Bush administration’s countering WMD strategy and presents the key attributes of the initiative.

Chapter 7, Domestic Authority, International Law and PSI explores the legal aspects of interdiction at sea, on land and in the air. These issues were at the core of the initial discussions on how best to transform proliferation prevention and leverage existing legal structures which led to PSI. The chapter also reviews the arguments for the legality of PSI. Ultimately, the chapter concludes that PSI is legal, is backed by numerous United Nations Security Council Resolutions including 1540 and the ones associated with North Korea and Iran and that it is consistent with freedom of navigation principles and their exceptions and the United Nations Convention on the law of the sea.

In Chapter 8, PSI and Other Approaches to Proliferation Prevention, additional interdiction methods are explored. These include the initiation of the Financial Action Task

Force at the US Department of Treasury and their efforts to shut down North Korea’s access to global financial markets through targeted sanctions. Chapter 9 also investigates some of the more acclaimed successes of PSI, namely the interdiction of the BBC China and its ties to Libyan WMD programs and the A.Q. Khan proliferation network in Pakistan. The chapter also addresses the limitations of financial targeting, the importance of political will, and the implications for international policy when inconsistencies are perceived and discusses the challenges faced when adapting the PSI model to terrorism.

Chapter 9 explores how PSI relates to United Nations Security Council Resolution 1540 and other global initiatives including the Global Nuclear Energy Partnership during the Bush years. Chapter 10, “Evaluating PSI,” describes the process by which the Bush administration came to understand the WMD and how it changed resulting the need for and promulgation of a coherent national strategy. The chapter also reflects on what PSI achieved and whether PSI is a sustainable and replicable model.

Finally, in the Conclusion, the author reiterates the key assertions of the thesis, reviews the relative merits and arguments over the utility of PSI and links key initial thesis questions with research and analysis and presents conclusions. The paper concludes that PSI is an effective and important model for proliferation prevention and that, as designed, has the advantages unique to political commitments allowing it to shore up much needed gaps in the broader proliferation prevention framework but one that may not be as exportable to other important security-related challenges as was originally hoped.

Chapter 2: Proliferation Security Initiative Literature Review

The purpose of this literature review is to examine the primary works and schools of thought on how the Proliferation Security Initiative was received and is perceived by different segments of the proliferation prevention and policy-related community. As the Proliferation Security Initiative (PSI) evolved over the tenure of the Bush administration to address the weapons of mass destruction (WMD) proliferation threat, PSI was viewed quite differently by the international community. PSI sparked much debate, even from states that endorsed the Statement of Interdiction Principles. A review of the literature reveals a few important themes as the Initiate developed and matured. First, many states, proliferation practitioners, and policy analysts, particularly those associated with the non-aligned movement (NAM), were very vocal in opposing PSI, especially at the outset.1 This was in large measure due to suspicion over the motives of the United States and its allies, particularly due to the proximity of the War in Iraq; The Iraq war was initiated on 20 March 2003 and PSI announced on 31 May 2003 in Krakow, Poland.2 Coupled with this was the fear that PSI would serve as justification for conducting high seas interdiction on a whim in violation of freedom of navigation and innocent passage concepts established in international customary and conventional law. Second, other key maritime and trading states such as China and India were likewise opposed to PSI and concerned over the impact PSI may intentionally or unintentionally have on maritime shipping lanes, the costs associated with shipping, territorial, and flag-state sovereignty issues. Additionally, China was concerned that PSI’s proliferation prevention framework was aimed at North Korea, a key China ally and that the US was seeking to build an international coalition to confront North

1 Santoro, David and Shahriman Lockman. “The Proliferation Security Initiative in ASEAN: A Glass Half Full or Half Empty?” PacNet, Number 8, Pacific Forum, CSIS, January 28, 2013. 2 Onderco, Michal and Paul van Hooft. “Why is the Proliferation Security Initiative a Problematic Solution?” The Chinese Journal of International Politics, January 10, 2016, pp. 81–108.

Korea over its WMD programs in general and nuclear development program specifically.3 Third, both key maritime states and the NAM joined in opposing PSI and stated their opposition vocally in the press, other literary avenues and at conferences as an infringement on established international law.4 Fourth, the opposition to PSI, so forcefully argued during the early days of the initiative, diminished dramatically after the interdiction on the High Seas of the BBC China carrying nuclear technology to Libya.5 This, in turn, led to the public exposure of Khan Research Labs and A.Q. Khan’s role in establishing a nuclear proliferation network, and ultimately Libya’s strategic decision to give up all of its weapons of mass destruction, not just its nuclear program.

To understand how and why the Proliferation Security Initiative was created and later evolved, it is important to assess the many viewpoints on policy and process that drove PSI’s development. A search of the literature identifies three primary bodies of thought. The first group of writers argues that PSI is a new tool but one firmly rooted in traditional proliferation prevention constructs and theory. As will be seen, this is the viewpoint expressed by some of PSI’s most noteworthy founders such as Robert G. Joseph and Susan Koch. Other academics such as Emma Belcher also fall into this category. The second maintains that PSI is a new and unique activity and that constitutes a significant departure from prior proliferation prevention efforts but is on the whole, a positive and effective model for WMD threats as understood during the Bush years. The final grouping of writers and academics agrees with the second, that PSI represents a new approach to proliferation prevention but feels that it represents a dangerous precedent whose benefits are far outweighed by its threats.

3 Kemp, Geoffrey. The East Moves West: India, China, and Asia's Growing Presence in the Middle East, Brookings Institution Press, June 22, 2012, pp. 216-218. 4 Klein, Natalie. Maritime Security and the Law of the Sea, Oxford University Press, 2011, p. 196. 5 See generally, Luongo, Kenneth N. “Nuclear Black Markets / A.Q. Khan Network Making the Nuclear Security Summit Matter: An Agenda for Action”, Arms Control Association, January 20, 2010, .

Two other important themes also emerge from the literature. The first is the impact of rapid expansion and the unforeseen consequences to PSI as it grew from eleven to fourteen to nearly sixty endorsing states by the end of 2006.6 During this expansion, the PSI “core group” clearly demonstrated a better ability to convey clearer objectives, allay fears, and argue that PSI was not only aligned with domestic and international law, but could not exist absent strict adherence to both. Nevertheless, there were many states -- including some PSI endorsing states - - that disagreed over the nature, scope, purpose and usefulness of PSI. One process mechanism that helped ease these concerns was the formation of working groups to explore legal, operational and informational issues that helped to develop an understandable narrative based in international law. This, coupled with greater transparency and publicity for operational and senior-level tabletop exercises, primarily in the maritime domain7 aided and (as will be seen in the literature review below) changed opinions and expectations for PSI as well. Over time, other process innovations occurred lending greater support to PSI such as allowing states that had not endorsed PSI such as China to participate as observers at meetings and in exercises. This transparency and access to PSI deliberations was pivotal in helping to ease and allay concerns about the intentions and mechanics of PSI. Second, as membership increased, the number of states interested in PSI increased as well and interest in the concept of WMD interdiction and raising costs to would-be proliferators also increased. Interest in the topic drove demand for more global and regional forums on proliferation, the press was given better access to key statements and discussions, interviews were arranged and most importantly, an appreciation of the true nature of the WMD proliferation threat and the consequences of failing to overcome this threat drove public consciousness, political concern and political action.

As will be seen in the literature review, the fundamental concern most critics raised about PSI during its inception through early development go to the legality of PSI activities under international law. However, as PSI activities were perceived to be successful and states were

6 For a list of PSI endorsees, see Annex 3. 7 It is worth noting that air interdiction tabletop exercises were also underway. See, Ward, Major Thomas. “Enhancing Air Interdiction of WMD”, CUWS Trinity Site Papers, US Air University, May 2014.

viewed as successfully working together to stop shipments of materials to and from states of proliferation concern, there developed a greater appreciation for networked proliferation. Networked proliferation that spanned sectors in governments and privately-held concerns highlighted the dilemma of unwitting states, corporations, banks and private individuals could be unwitting players in proliferation. As such, all of these communities now had an interest in preventing proliferation where they did not before. Failure to take action was now viewed as a risk that could expose any unwitting party to potential liability. Other risks included the loss of reputation and reputational capital, damage to branding and brand names, censure or sanctions, fines and even jail time. Over time, the literature tends to show that risk considerations went hand-in-hand with a more fully developed narrative and PSI successes in broadening the acceptance of interdiction.

Over time, access and transparency also eased concerns over the “true” purpose and motivations of PSI. Many non-endorsing states changed their view of PSI as a United States ploy, supported by its closest partners, to stop ships on the high seas whenever, wherever and for whatever reasons the United States wanted. While some states continued to accuse the US government of attempting to target specific countries or materials, most came to the conclusion that PSI was a new and valuable tool to counter proliferation prevention.

Finally, while the literature widely addresses several key aspects of PSI, including changes in the perceptions of the PSI concept, its effectiveness, and purpose; how the Statement of Interdiction Principles were developed, the history of the initiative; and the successes surrounding the BBC China, Libya, and the A.Q. Khan network, very little is written on assessing how PSI represents a model different from the traditional non-proliferation, arms control and counterproliferation framework. For example, the literature does not well address the drivers for developing PSI – how the threat environment changed and how the traditional proliferation prevention framework was not adequate for the evolving WMD threat (nontraditional actors, al Qaeda, and WMD terrorism in the post 9/11 environment). Additionally, there is little mention of how PSI and other activities such as the Global Initiative to Combat Nuclear Terrorism (GICNT) fit into the larger proliferation prevention scheme.

Finally, while there is recognition that PSI represents a different approach to preventing proliferation, there is very little analysis on why and how this is so.

So is PSI new and novel, something borrowed and modified from the past or a dangerous precedent to be feared? Is it adaptable to other threats or problems? All of these questions are explored in this and is merely one reason this research project is needed today. One hundred and five countries have endorsed the PSI Statement of Principles.8 The popularity of this activity continues to grow dispelling some of the concerns of other nations; however, some key countries have not joined PSI, leaving gaps in the program’s ability to be effective. To better understand how PSI evolved from its earliest days to the end of the George W. Bush administration, below is a literature review of PSI and several opinions on the good, bad and future of the initiative.

2.1 PSI as a Continuation of Existing Proliferation Prevention Regimes

The authors in this category have a few common themes regarding PSI. First, that PSI was created to fix a specific problem, namely, to raise costs on proliferators engaged in illicit activities. Second, that PSI while improvising in many conventional respects, nonetheless was grounded on the fundamental principles of the primacy of state sovereignty, honoring obligations under domestic and international law and respect for current non-proliferation and counterproliferation regimes existing at the time. The authors in this group focus on the importance of strengthening domestic laws in order to criminalize proliferation behavior and enhance border security and protection to be able to interdict proliferation activities where they occur. The key aspect is that PSI builds on current proliferation prevention regimes and does not seek to replace, go around or supersede them. Thus they argue that PSI is an organic and natural development in the evolution of proliferation prevention to attack the proliferation problem based on a new set of threat conditions.

8 As November 1, 2016, there were 105 states that endorsed the Statement of Interdiction principles. A list of the endorsing states can be found in Annex 3. “Proliferation Security Initiative (PSI)” Nuclear Threat Initiative, February 20, 2017, .

Emma Belcher’s working paper “The Proliferation Security Initiative: Lessons for Using Nonbinding Agreements” is a prime example of authors who view PSI as an important new initiative but one consistent with and based on existing nonproliferation regimes. In her monograph, Belcher covers key lessons from PSI and discusses how they may apply to future events through nonbinding agreements similar to PSI. 9 She provides an explanation and a context for why government officials choose to work with these type of agreements, what the positives and negatives are for non-treaty arrangements, and her perspectives of the lessons learned from the PSI experience. Her fundamental argument is that PSI does represent a new way of doing business but one that is rooted in traditional proliferation prevention regimes. Her assessments and critiques focus primarily on the costs and benefits of non-treaty agreements and their relative expected values. Belcher maintains that the design of PSI was influenced by the need for quick action that was not overly bureaucratic and could be executed in a time-sensitive manner.

As the PSI was emerging as a concept in 2003, the United States was working with a high degree of urgency to stop the proliferation of WMD and did not believe there was enough time to negotiate full multilateral treaties or craft effective codicils to existing ones.10 Treaties are time consuming and require the negotiating states to reach a least common denominator agreement, often watering down the essence and purpose of a proposed agreement significantly. In contrast, as a nonbinding pledge, PSI was easier to negotiate, faster to implement, and could contain stronger commitments than a treaty.11 It was not universal and any state that supported the objectives and purposes of PSI could endorse the statement of interdiction principles at any time. The downside of a nonbinding pledge, as pointed out by Belcher however, was uncertainty over compliance and verification. At the time of publication in 2011, it was still unclear if states would actually follow through on their commitments in the form of a political pledge regarding

9 Belcher, Emma. “The Proliferation Security Initiative: Lessons for Using Nonbinding Agreements,” Working Paper, Council on Foreign Relations, 2011. 10 Ibid, p. 6. 11 Ibid, p. 6.

WMD interdictions. As a political commitment, states could merely let their participation in PSI lapse or, at any time, openly disavow participation in PSI.

Belcher notes that in order to quickly pull together support for the agreement, the United States first went to “like-minded states” who would almost assuredly commit to PSI, specifically strong allies who supported the war in Iraq. This method worked by building a strong core of initial support and then seeking other states to join.12

As argued by Belcher, in the early formation of PSI, participants decided against identifying specific actors and materials that allowed for flexibility in future PSI operations.13 By not having a set list of targets, PSI was able to evolve and change focus as threat environments changed over time. In addition, PSI had to evolve. In fact, in announcing PSI in Krakow, Poland in 2003, the fact is that many conceptual and organization details were not finalized. The announcement itself was intended to serve as a deterrent to proliferators but there was no statement of interdiction principles, no clear PSI plans and no engagement strategy at that time.14 The only thing that bound states to PSI, then called the Krakow Initiative, was a commitment to take some action individually or collectively against known or would-be proliferators.

While PSI is designed to be more than merely a maritime interdiction effort and applies to ground and air interdictions as well, one useful aspect of Belcher’s analysis is that she argues that many of the compliance problems can be overcome in the maritime domain by negotiating ship boarding agreements with the overarching commitment to adhere to PSI’s statement of interdiction principles.15 A Ship boarding agreement is a negotiated and formal commitment between states whereby each agrees that if certain proliferation related activities occurs or is suspected on one party’s flagged ship (registered in their state), the other party can request and

12 Ibid, p. 6. 13 Ibid, p. 8. 14 Ibid, p. 7. 15 Ibid, p. 11.

will be given permission to stop and inspect (interdict) the ship. Belcher argues that this layered approach based on the statement of interdiction principles and ship boarding agreements would overcome some of the early concerns over noncompliance and the lack of participation that arise from a nonbinding agreement.

Similar to Belcher, Susan Koch, in her occasional paper, Proliferation Security Initiative: Origins and Evolution provides an overview of the development of the PSI program from its beginnings through 2012.16 While Belcher wrote about PSI in academic terms, Koch considers PSI from not just an academic perspective but also as one who was on the National Security Council staff during the conception and execution of PSI. In her paper, Koch carefully details the evolution of PSI as the activity grew over the years, including the aspects that were successful and those that were less so. Koch also describes the key lessons learned through accounts from key policy individuals in the Bush administration who helped shape PSI in its early days. Additionally, she also lays out the motivations behind PSI and details the successful nature of PSI.

Koch makes several important observations regarding the process for developing PSI and its evolution. For example, she notes that the goal of PSI was not to create new international law, but to change international law “through actions by sovereign nations to change their national legal authorities.”17 Therefore, in her opinion, a central PSI objective in the early days was to establish, through continuous actions by many states, a customary international norm in favor of WMD interdictions on the high seas. Though Koch acknowledges that this has not yet been achieved nor will be achieved for decades, she does conclude that there is greater acceptance of PSI globally. Additionally, she notes that one of the key lessons learned in designing and implementing PSI revolves around the need to maintain and safeguard secrecy. Secrecy is paramount to the success of any interdiction yet is difficult to maintain while sharing

16 Koch, Susan J. “Proliferation Security Initiative: Origins and Evolution”, Occasional Paper 9, Center for the Study of Weapons of Mass Destruction, National Defense University Press, 2012. 17 Ibid, p. 6.

information with other PSI endorsing states. Public knowledge of an interdiction can hinder or prevent the success of an interdiction operation.18 Koch maintains that this lesson should be carried on through further PSI work, although recognizing that many believe that secrecy is also a hindrance to further growth of PSI as countries cannot overtly show the successes of the initiative.

Koch concludes that it is important to have individuals at the appropriate governmental and policy level involved in PSI activities and in making domestic choices regard interdicting WMD. In other words, presidential and other high-level support is essential to keep PSI going. She notes that one reason PSI was enacted quickly and grew at a rapid pace was due, in large measure, to high level political commitments supporting the initiative, primarily at the Head of State level.19 However, once enacted, this level of participation changed, but having Heads of State initiate the state commitments to PSI played a key role in pushing through their involvement quickly. Koch also notes that, originally, PSI in execution had a strong operational component and three expert working groups were developed: diplomatic, military, and information sharing and intelligence. The military group was regularized immediately, and merged somewhat with the diplomatic working group that eventually was called the Operational Experts Group (OEG), still in existence today. The OEG was and remains the focal point for multilateral PSI activities such as operational exercises and tabletop exercises and other scheduled international meetings. The information sharing and intelligence group was not useful and was ended after a few meetings due to the sensitivities involved in sharing sensitive content.20 PSI’s flexible nature and the fact that no secretariat existed allowed it to adapt as needed and form and in some cases re-form working groups to continue research and ideas generation between PSI meetings.

18 Ibid, p. 7. 19 Ibid, p. 11. 20 Ibid, p. 14.

With regard to the PSI Statement of Interdiction Principles, Koch cautions that the Statement does not include specifics for organizational structure, formal staffing or groups of member representatives. This, according to Koch allowed flexibility for the participants in seeing what did and did not work, what groups were needed and what schedule was necessary for meetings as the initiative moved forward.21 Importantly, participation carries no obligations.22 She asserts that this allowed states to join quickly, but also caused the United States and others to be more proactive in encouraging endorsing states to make the leap from just endorsing the principles to enacting domestic laws and participating in and/or hosting exercises. Since the structure of the PSI was not set in stone, it was able to adapt as needed and change as more participants joined the organization.23 This flexibility was necessary when the “core group” of 14 states comprising PSI’s more active states was abandoned to prevent new states or ones not as active in PSI from feeling like “second-class” participants.

Finally, Koch concludes with a recommendation that PSI still needs to develop a process or system for documentation, scheduling and exchanging information. Koch notes that there is a continuing need to develop a more effective website so documents, lessons learned, best practices and other information can be shared among PSI’s participating states.24

Like Koch, Robert G. Joseph was an insider during the creation and implementation of PSI. He served as a director at the National Security Council staff and later as the Undersecretary of State.25 Joseph in his book Countering WMD: The Libyan Experience covers the US government’s efforts to work with the Libyans and ultimately, to have the Libyans make

21 Ibid, p. 18. 22 Ibid, p. 19. Emphasis added by author. 23 Ibid, p. 21. 24 Ibid, p. 22. 25 Until March 2007, Robert Joseph was the United States’ Under Secretary of State for Arms Control and International Security at the US State Department. From January 2001 through November 2004, Joseph served as Senior Director and Special Assistant to the President for Counterproliferation Policy on the National Security Council Staff.

the strategic decision to relinquish their WMD materials and renounce their WMD programs.26 This book describes how PSI was useful in aiding in the interdiction of WMD materials on the BBC China and providing critical evidence to the Libyans that helped them decide to renounce and give up their clandestine nuclear and WMD programs. This is one of the few public documented cases of a PSI interdiction and is laid out with some detail by Joseph.

As the Senior Advisor to the President for Nonproliferation during PSI’s formulation, creation and implementation, Joseph argues that PSI did not seek universal membership to avoid a less common denominator agreement, but instead started with a small group of concerned participants and grew from there.27 Unlike many characterizations of the interdiction operation of the BBC China, he argues that that specific interdiction was brought about through PSI. Evidence for this includes the fact that both Rome and Berlin cited their commitments to PSI when they agreed to participate in the operation.28 He concludes that the interdiction and the material evidence from the BBC China had an “immediate effect” on their decision making process once the evidence was shown to the Libyans. This evidence ultimately led to the strategic decision to not only abandon their nuclear ambitions, but to abandon all of their WMD programs, stockpiles of chemical weapons and make international commitments such as joining the Chemical Weapons Convention29 and the Biological Weapons Convention.30 Joseph’s argument highlights an important tension that will later be explored, namely, was the interdiction of the BBC China a “PSI interdiction” or as Joseph argues, an interdiction based on intelligence resulting in a decision point for the Libyans and not brought about by the newly developed PSI?

Jacek Durkalec’s article “The Proliferation Security Initiative: Evolution and Future Prospects” focuses on the evolution of PSI and highlights the many negative and positives of PSI

26 Joseph, Robert G., Countering WMD: The Libyan Experience, National Institute Press, 2009. 27 Ibid, p. 30. 28 Ibid, p. 41. 29 Formally, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction and the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. 30 Ibid, p. 41.

and the influence of the activity on the international community.31 Like Koch and Joseph, Durkalec views PSI as a helpful proliferation prevention tool based on the fundamental principle of the primacy of sovereignty and existing domestic and international law. He emphasizes the challenges that PSI faces, including the missing critical actors such as China and states in the Middle East and points to gaps in national legislation and lack of measure for effectiveness. He also argues for further “institutionalization” of the program and holds that a more structured and accountable PSI would ease some of these shortcomings.

Overall, however, Durkalec views PSI quite favorably. For example, he points to the fact that that the non-binding character of PSI is a positive, allowing the initiative flexibility to adapt to the changing international security environment. As WMD challenges change, including the states of concern and the threat environment, PSI can evolve to meet those threats. More importantly, since “PSI was designed to complement and support other existing non-proliferation mechanisms, including binding multilateral treaties (e.g. the Non-Proliferation Treaty, the Biological and Toxin Weapons Convention and the Chemical Weapons Convention), voluntary export-control regimes (e.g. the Zangger Committee, the Nuclear Suppliers Group, the Australia Group and the Missile Technology Control Regime) and United Nation Security Council resolutions. 32 PSI supports these by adding in a last line of defense in interdicting materials and weapons in transit” and that PSI is an important component of the proliferation prevention framework, enhancing it, not seeking to undo it.

Durkalec acknowledges that maritime interdictions are the primary focus of PSI, as ninety percent of the world’s imports and exports travel by water at some point. Indeed, he states that the Statement of Interdiction Principles “outlines the PSI’s relevance to interdicting shipments transported by air, land or sea, but maritime interdiction remains the main focus of PSI actions. This reflects the fact that, according to data from 2009, around 90 per cent of the

31 Durkalec, Jacek. “The Proliferation Security Initiative: Evolution and Future Prospects,” Non-Proliferation Papers, No. 16, EU Non-Proliferation Consortium, June 2012. 32 Ibid, p. 2.

world’s imports and exports by volume are at some point transported by water, while about 9 per cent are transported by land and only about 0.25 per cent by air. In terms of imports and exports by value, 73 per cent are transported by sea, 14 per cent by land and 13 per cent by air.33 As such, Durkalec’s opinion is that PSI air and land interdictions gained prominence as PSI evolved. Additionally, he notes that the ambiguous language of the statement of interdiction principles not only gives PSI the flexibility to adjust to new challenges over time, but that there is a downside. The lack of definition and clarification over terms such as “states of concern” and “related materials” has the potential to cause confusion within and outside the PSI community. However, Durkalec argues that the positive side of ambiguity, flexibility, should be emphasized over the negative, the potential for confusion.

As for some of the legal issues, Durkalec points out that not all participating states have established the appropriate national legislation that allow land, sea and air interdictions to the extent permitted by international law and norms.34 He recommends that this should be a key element for PSI moving forward. Additionally, since there is no common interpretation of international legal norms clarifying whether or not interdiction can or would be carried out given particular scenarios or situations, this should be established.35

Operationally, Durkalec notes that PSI needs to grow number-wise and efforts to engage and convince more states to endorse the statement of interdiction principles are needed in order for PSI to be effective.36 These gaps in participation are especially a concern as certain geographic regions and key countries are poorly represented in PSI, leaving vulnerabilities and avenues for proliferators to take advantage of. As for activities such as meetings and exercises, there is very little predictability or a longer-term schedule or agenda. Since there is no strategic plan, the numbers of PSI exercises and activities vary by year, but have declined over time.

33 Ibid, p. 3. 34 Ibid, pp. 12-13. 35 Ibid, p. 5. 36 Ibid, pp. 14-16.

Durkalec concludes that in 2011, PSI members seeking to breathe new life in PSI developed critical capabilities and practices project for PSI in order to assist in endorsees’ capacity-building efforts.37

These authors, Belcher, Koch and Joseph and Durkalec all argue that PSI was based on existing commitments to domestic and international law and sought to strengthen these laws to combat proliferation prevention. Their arguments, likewise, can be added to United Nations Security Council Resolution 1540, a legally binding UN Security Council decision under Chapter VII of the UN Charter, calling on all states to strengthen domestic laws to criminalize the transfer of WMD, WMD components, technology or know-how to terrorist organizations.38 All three argue that while pursuing PSI, additional efforts to bolster the NPT regime and other nonproliferation treaties were concurrently underway. This is important since it demonstrates that the Bush administration was pursuing proliferation prevention across a wide front based on traditional as well as novel proliferation prevention strategies.

2.2 PSI Outside Existing Regimes

The second grouping of authors argues strongly that PSI is a new approach to proliferation prevention and generally evaluates the relative merits of PSI and its primary attributes. The authors tend to assess strengths and weaknesses of PSI, compare those to the threat environment and make a judgement as to whether or not PSI is helpful in the fight against global WMD proliferation.

Wade Boese in his article “An Interview with John Bolton,” notes that John Bolton states that shipments to rogue states and terrorists are a priority under PSI,39 that PSI was not directed

37 Ibid, pp. 14-17.

38 Resolution 1540 (2004), Adopted by the Security Council at its 4956th meeting, April 28, 2004. 39 Boese, Wade. “An Interview with John Bolton”, Arms Control Today 33, December 2003, p. 37, .

at the Indian, Israeli, or Pakistani nuclear programs40 and that Bolton claimed that Russia and China “have no serious objections to the PSI concept.”41 However, Boese notes that China doubts the legality and effectiveness of PSI42 and reports that John Bolton states that there are no plans to seek United Nations Security Council approval.43 The article suggests that while key actors in developing PSI such as Bolton view PSI as a good, others such as India, Israel and Pakistan view the initiative as an instrument of United States national security to target their programs and China along with many other states are concerned about the overt reach and breadth of PSI.

Similarly, in their article from 2009, Philip Coyle and Victoria Samson in “The Proliferation Security Initiative: Background, History and Prospects for the Future” lay out several recommendations for the future of PSI and while viewing PSI as a new effort, stress ways to improve upon PSI. 44 They look across both the domestic and international prospective on ways and methods to improve and grow the program and offer an optimistic view of the future of PSI, building from a successful start and growing through increased participation, a more nuanced and well-grounded legal narrative and better budgeting.45

Coyle and Samson argue that within the US government, the National Security Council initially guided the PSI program with the State Department and Department of Defense taking on some diplomatic and operational responsibilities. However, there remains confusion as to which federal agency is “in charge” of PSI and what the budgeting process is and should be for PSI.46 The implication is that since PSI is not a traditional nonproliferation activity, who within the Federal apparatus should have ownership of its vision, missions and goals? Coyle and Samson

40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid. 44 Coyle, Philip E. and Victoria Samson. “The Proliferation Security Initiative: Background, History and Prospects for the Future”, International Commission on Nuclear Non-proliferation and Disarmament, January 2009. 45 Ibid. 46 Ibid, p. 4.

argue that having a home agency or a lead federal agent would allow PSI to have a specific budgeting authority, allow for the adjudication of PSI differences of opinion in the Interagency and afford a mechanism for prioritized funding. They also maintain that the effects of the PSI program are difficult to quantify and reports of PSI successes are open to interpretations. Metrics are hard to establish and merely counting successful interdictions are not useful given the sensitivity of those operational activities. Indeed, successful interdictions are rarely publicized and when they are, few details are provided on the process that led to the interdiction.47 Secrecy within the program is necessary but also serves as an impediment to further growth. In addition, it is difficult to assess whether successful interdictions would or would not have occurred without PSI, making PSI outreach more difficult since the efficacy of the initiative is hard to quantify.48 The authors advocate document sharing as an easy way to increase participation and understanding among the PSI members.49 This can be done through a website, or through increased and more regularized meetings. They also suggest trying different formats for meeting, such as regional OEG meetings, instead of broader global OEG meeting where discussions are wide-ranging and diffuse. Regional meetings could serve to promote regional capabilities and closer ties among regional partners, especially in light of the growing number of countries involved and they can also help to build up regional accountability among nations. Additionally, they suggest trying different formats for meeting, such as regional OEG meetings, instead of broader OEG meeting. Regional meetings could serve to promote regional capabilities and closer ties among regional partners, especially in light of the growing number of countries involved in PSI. They could also help to build up regional accountability among nations.50

Coyle and Samson also argue that PSI participants need to address the fears of non- participants, such as India and China, that joining PSI will reduce their foreign policy independence by emphasizing the voluntary nature of PSI while also emphasizing the critical

47 Emphasis added by the author. 48 Ibid, p. 7. 49 Ibid, p. 13. 50 This recommendation was thoroughly discussed in 2010 and implemented in 2011.

threat of WMD proliferation.51 They note that United Nations backing for PSI would help promote international acceptance and that PSI endorsing states should seek such acceptance and that this could also help to reduce the perspective that PSI is heavily United States-centric.52 Finally, they note that a productive way to promote active and additional participation in PSI is to emphasize that the initiative combines aspects of nonproliferation and counterproliferation. As a new and novel program, PSI is not limited to either nonproliferation or counterproliferation strategies but includes elements of both. Programs such as Cooperative Threat Reduction, the Container Security Initiative and others serve as stepping stones to prevent and halt proliferation, and PSI can be shown as a step in this chain.53

Sharon Squassoni’s CRS Report for Congress: Proliferation Security Initiative from the US Congressional Research Service notes that PSI has no international secretariat, no dedicated offices in federal agencies, no reports of successes or failures, and no established funding.54 She also points out that some question the seriousness of the Bush administration’s effort and the sustainability of PSI without formal mechanisms55 and that there has been little by which to measure PSI’s success.56 Finally, she points out that according to the State Department, no authority has been worked out to seize cargo legally, and PSI authority doesn’t apply to government-owned vessels57 Squassoni argues that PSI is so informal that it may fail through its own legal, definitional and bureaucratic ambiguity. While pointing out that PSI is new and a potentially valuable tool, she raises the question about PSI’s sustainability in the absence of presidential leadership. Without the support of national leadership and with no organization, how can PSI survive as a global proliferation prevention framework?

51 Coyle, Philip E. and Victoria Samson. “The Proliferation Security Initiative: Background, History and Prospects for the Future”, International Commission on Nuclear Non-proliferation and Disarmament, January 2009, p. 9. 52 Ibid, p. 15. 53 Ibid, pp. 6, 15. 54 Squassoni, Sharon. “CRS Report for Congress: Proliferation Security Initiative”, Congressional Research Service, June 7, 2005. “Proliferation Security Initiative Frequently Asked Questions (FAQ)”, Bureau of Nonproliferation Fact Sheet, May 26, 2005, . 55 Ibid. 56 Ibid. 57 Ibid, p. 4.

For a slightly different perspective but building on Squassoni’s critique, Jinyuan Su’s article “The Proliferation Security Initiative and Interdiction at Sea: A Chinese Perspective” mirrors many other skeptical pieces but does note that while PSI is a new and creative initiative, acceptance by Chinese officials is slowly coalescing. 58 While noting concerns over the international legal basis for interdictions, the author describes a shift in Chinese perspectives on PSI, from the original negative view on how PSI posed a risk to national sovereignty to a more benign perspective in 2012. It is an important piece that supports the argument that though many states initially were highly skeptical of PSI’s motives and intentions, over time, these perspectives changed to a much more accepting viewpoint. Su notes that while there was a great deal of Chinese skepticism over PSI at the onset of the initiative since it was originally viewed as a power-grab by the United States to meddle in the free-flow of merchandise on the high seas and specifically in China’s back yard, PSI in practice has not substantiated those initial fears. At the outset, Chinese scholars and political leaders firmly believed that PSI was outside existing and traditional international legal frameworks. They also believed that PSI actions went against the Chinese foreign policy of non-aggression, non-use of force and sovereign equality.59

Su argues that establishing “reasonable grounds” for boarding a vessel was left undefined by the members of the initiative. Suspicion of WMD proliferation similarly was not clearly defined as a reason to take interdiction action, but the author notes that there is now an argument that it should be.60 As with Emma Belcher, Su finds the legal answer in reciprocal ship boarding agreements. Yet, there is still a cautionary note that many of the bilateral ship boarding agreements include an implied consent clause, meaning that if there is no response from the requested party within a certain time frame the requesting party has the authority to board.61

58 Su, Jinyuan, “The Proliferation Security Initiative and Interdiction at Sea: A Chinese Perspective,” Ocean Development and International Law, 43 2012, pp. 96-118. 59 Ibid, p. 98. 60 Ibid, p. 100. 61 Ibid, p. 101.

While concerning, as long as participating states agree, this remains consistent with international law.

Su concludes that the years of PSI practice and activities are consistent with international law, opening the door for even the most skeptical states to become involved.62 He maintains that years of successful interdictions and transparent exercises and meetings can and will help bring skeptical states on board.

Paul Kerr goes even farther than Su in his Arms Control Today article, “China Stresses Common Approach with Bush administration’s Nonproliferation Policy” as he reviews a Chinese white paper on nonproliferation policy that stresses the consistency between United States perspectives on nonproliferation and China’s.63 He notes that the Chinese position stresses that China takes its nonproliferation obligations and commitment seriously64 and the constancy of Chinese export controls are within existing international norms.65 Kerr does note, however, that the United States maintains continuing and growing concern that China is not enforcing its export control laws66 and that China at times willingly violates export controls and arms control conventions.67

Kerr concludes with the acknowledgement that the white paper stresses China’s proliferation prevention policy as focused on the supply side of WMD proliferation, which is similar to the approach favored by the Bush administration.68 China prefers an approach to proliferation prevention that is centered on peaceful means, using dialogue and international

62 Ibid, p. 112. 63 Kerr, Paul. “China Stresses Common Approach with Bush administration’s Nonproliferation Policy,” Arms Control Today, 34, Jan/Feb 2004, p. 36. 64 Ibid. 65 Ibid. 66 Ibid. 67 Ibid. 68 Ibid.

cooperation, to deal with proliferation threats.69 According to Kerr, while PSI is a new and creative diplomatic solution to proliferation prevention, China is moving from a position of hostility and skepticism to being benignly supportive of PSI.

John R. Holmes, in his article “India and the Proliferation Security Initiative: A U.S. Perspective,” assesses the benefits and limitations for India in considering the endorsement of the statement of interdiction principles.70 He begins by noting that while the PSI’s framers rarely speak in theoretical terms, the initiative bears closer resemblance to what international-relations theorists, specifically Stephen Krasner, call a “regime.”71 A regime is “a set of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given interest area” rather than an international organization.72 He points out that PSI displays the characteristics of a subcategory of regimes known as “global prohibition regimes” and that these regimes enjoin state and non-state actors from taking part in particular activities.73 Additionally, he argues that United Nations Security Council Resolution 1540, which “instructed United Nations member states to impose effective oversight on the trade in weapons-related commodities, is evidence of a maturing international norm against the proliferation of mass-destruction weaponry and the ballistic missiles used to deliver unconventional payloads.”74

69 Ibid. 70 Holmes, James R. “India and the Proliferation Security Initiative: A U.S. Perspective”, Strategic Analysis, 31, March 2007, pp. 315-337. 71 Regime theory is different from realist theory in that realism asserts that conflict is the norm in state relations. Regime adherents argue that states seek cooperation across a number of fronts where common interests outweigh individual state benefits. Where states cooperate is where you will find regimes. Stephen Krasner defines regimes as “institutions possessing norms, decision rules, and procedures which facilitate a convergence of expectations.” Krasner, Stephen D. (ed). International Regimes, Cornell University Press, 1983. 72 Holmes, James R. “India and the Proliferation Security Initiative: A U.S. Perspective”, Strategic Analysis, 31 March 2007, p. 317. On the concept of “regime”, the author cites Krasner, Stephen D. (ed.), International Regimes, p. 2. 73 Ibid. 74 Ibid.

PSI as a regime represents a good model and Holmes argues that there are several benefits for India endorsing PSI. First, New Delhi needs to put to sea a capable maritime force capable of conducting combined exercises and operations with the US Navy. PSI as an operationally-focused regime will help India overcome the tactical, equipment and bureaucratic impediments to joint maritime operations that they have currently face or are likely to encounter in the future.75 Second, “delousing commercial shipping of weapons-related items will reduce the likelihood of a catastrophic terror attack made possible by deficiencies in maritime security.”76 This is important given India’s connectivity to global markets and global trade and should argue strongly for joining such a regime. Finally, Holmes argues that “accession to the PSI will signal that India intends to assume a position of stewardship over international trade and security after years of being targeted by the international non-proliferation regime.”77 While presenting these benefits to India in joining the PSI “regime”, Holmes then turns to disincentives for India’s participation in PSI. He begins with the China dimension and notes that while Beijing has endorsed the PSI’s overarching goal of stemming weapons proliferation, China specifically remains noncommittal about eventual Chinese membership.78 Importantly, Holmes notes that the real motivation for supporting proliferation prevention in the region is economic and not concern over WMD proliferation:

Beijing attaches overriding importance to economic development, which increasingly depends on the free flow of seagoing commerce through the shipping lanes that link Chinese seaports with Middle East and African sources of petroleum. These shipping lanes pass through the Indian Ocean and the Strait of Malacca into the South, East China, and Yellow seas—riveting attention on waters that were formerly an afterthought for Chinese strategists. President Hu Jintao has spoken, for example, of a ‘Malacca Dilemma’ arising from China’s energy needs.79

75 Ibid, pp. 316-317. 76 Ibid, p. 317. 77 Ibid. 78 Ibid, p. 322. 79 Ibid, pp. 324-325.

As such, Holmes points out that as a practical and diplomatic matter, PSI could impinge on Indo- Pakistan or Indo-China relations.80

Finally, Holmes identifies a very important driver preventing India from participating in PSI and that is India’s primacy to maintaining independence and diplomatic freedom of action. Holmes argues that the evidence suggests that India has remained aloof from the PSI in large measure because it worries that PSI participation might seem to signify a formal alliance with the United States, something Indian governments have traditionally resisted.81 As in the case of China, however, India might collaborate with the initiative as its needs and interests warrant, while keeping its involvement in the United States-led initiative out of public view.82 Holmes does not make the argument, expressed by others, that India’s concern over PSI is based on a premise that PSI is aimed at India.

To recap, the authors above view PSI as a novel and new effort to tackle the global WMD proliferation problem and not necessarily linked to traditional nonproliferation or counterproliferation approaches. While some view PSI from different state perspectives, each concludes that PSI is a valuable tool to either be preserved, modified or expanded. We now turn to literature critical or suspicious of PSI, its motives and/or its members.

2.3 Literature Critical or Suspicious of PSI

The final category of scholarship centers on authors who are critical of PSI as a proliferation prevention activity or are suspicious of PSI’s motives.

James Cotton from the University of New South Wales Canberra at the Australian Defence Force Academy in “The Proliferation Security Initiative and North Korea: Legality and

80 Ibid, p. 328. 81 Ibid, p. 329. 82 Ibid, p. 331.

Limitations of a Coalition Strategy” focuses his 2005 analysis on how and why PSI is heavily focused on proliferation activities from North Korea and argues that South Korea should be a key factor in stopping proliferation from the DPRK.83 Additionally, Cotton argues that absent a United Nations Security Council Resolution, interdiction activities that occur within shipping routes on the high seas would neither be justified nor legal due to the maritime law of freedom of navigation. Cotton maintains that under current norms, the export of missiles by non-Missile Technology Control Regime (MTCR) countries to non-MTCR recipients does not violate any international agreements or obligations.84 Thus, the focus on North Korea is misplaced and events such as the So San interdiction would still remain outside the purview of legitimate high- seas interdictions. Cotton adds that PSI lacks “sufficient basis in international law” to legitimize the interdiction of alleged North Korean WMD and weapons shipments on likely shipping routes.85 He notes that it is not yet possible to reconcile the ambitious intentions of PSI with current international law and practice. Significantly, Cotton argues that further cooperation with key states will be necessary, and a specific United Nations Security Council endorsement will be required for PSI to be legitimatized under international law and the proliferation prevention framework.86 It should be noted that while South Korea endorsed the statement of interdiction principles and joined PSI in 2009 and there have been several statements from United Nations officials supporting PSI, no United Nations Security Council endorsement has officially been made.87 Cotton stresses that to build an effective PSI coalition, the full participation of South Korea is required. This is the case not only for reasons of geography and because US air and naval units would most likely operate from or use bases in South Korean territory, but also

83 Cotton, James, “The Proliferation Security Initiative and North Korea: Legality and Limitations of a Coalition Strategy”, Security Dialogue, Vol. 36 Issue 2, June 2005, pp. 193-211. 84 Ibid, p. 197. 85 Ibid, p. 208. 86 Ibid, p. 201. 87 “South Korea made the decision to join the Proliferation Security Initiative (PSI) following the DPRK’s April 5 rocket launch, but it had delayed a formal announcement in consideration of its efforts to resume dialogue with its communist neighbor, according to Yonhap News Agency. “S. Korea to Join US-Led Anti-Proliferation Drill”, The Korean Times, March 26, 2009, .

because since 2000, South Korea has emerged as North Korea’s most important trading partner and because there have even been some tentative agreements between Seoul and Pyongyang to permit shipping from the North to use South Korean territorial waters.88 According to Cotton,

The formation of a truly effective PSI coalition would require the full participation of South Korea. This is the case not only for reasons of geography and because US air and naval units would most likely need to operate from or use bases in South Korean territory, but also because since 2000 South Korea has emerged as North Korea’s most important trading partner and because there have even been some tentative agreements between Seoul and Pyongyang to permit shipping from the North to use South Korean territorial waters. It is clear from current public opinion data, however, that many South Koreans are reluctant to take part in any such undertaking, either because of the risks of conflict, because of the costs entailed in reconstruction in the event of regime collapse, or because for nationalist reasons they believe that foreigners should not be involved in the making and unmaking of states on the peninsula.89

Even with the South Korean endorsement of PSI, which was established in 2009, Cotton maintains that interdictions on the high seas runs counter to customary and conventional international law.

Similar to Cotton and his focus on the legality of PSI activities in international maritime law, Eric Yong Joong Lee views PSI as an illegal and unsupportable United States effort that runs counter to international law. As a law professor in South Korea, Lee in his article “Can the PSI be Legitimate for the Nonproliferation Regime? A Critical Analysis” highlights the challenges PSI fails to overcome working within the confines of international law.90 Lee argues that PSI faces several legal challenges in both its design and implementation.

88 Ibid, pp. 206-207.

89 Ibid. 90 Lee, Eric Yong Joong. “Can the PSI be Legitimate for the Nonproliferation Regime? A Critical Analysis” Journal of East Asia & International Law, 3 JEAIL 29, Spring, 2010.

This article questions whether the use of preemptive action for self-defense is a legal justification for self-defense in international law. Essentially, he argues that actions taken under or pursuant to PSI challenge the traditional understanding of self-defense, which would only be warranted after an armed attack occurs or is imminent.91 This is the traditional customary international law concept of “anticipatory self-defense” and distinguishes between “pre-emption” which is allowed under international law and “prevention” with is not.

He also focuses on the important right of freedom of navigation of the seas that guarantees, with very limited exceptions, that ships have the right to move freely on the open seas. Lee argues that PSI challenges this fundamental right by allowing member states to interdict suspicious ships on the high seas. He notes that the United States has negotiated ship- boarding agreements with flag states in order to remedy this concern, yet the vast number of states have no such customary relationship with the United States or other states.92

Similar to his freedom of navigation concerns, Lee asserts that under international law, ships have the right of innocent passage in territorial seas if the ship is not a threat to peace and security or to any domestic legal constraints. The “domestic legal constraints” is of concern to Lee since this exception for the right of innocent passage provides an opening to allow coastal states, through legislation or even merely as a PSI endorsee to interdict vessels within their territorial seas. All that would be needed to justify interference of innocent passage and interdict a ship would be to assert that the ship was a threat to security.93 This would constitute a very low barrier to interfering with maritime traffic under international law and thus violating both the intent and practice under international law. Lee does note that PSI endorsees are called on to enact domestic laws, activities well within the right of any sovereign state, which would allow them to take action against WMD proliferation occurring in their waters. These actions would be

91 Ibid, pp. 37-38. 92 Ibid, pp. 40-41. 93 Ibid, pp. 42-43.

consistent with state practices as well as in harmony with PSI’s statement of interdiction principles.

Finally, as to customary international law, Lee argues that PSI, and interdiction operations more broadly, do not rise to the level of a customary international norm. Customary international law is created by state practice and opino juris (a state’s belief that they are bound by customary international law) not by conventional international agreement.94 Lee argues that the United States desire for WMD interdiction practice to evolve into customary international law by continued activities under PSI will not and cannot exist since a non-treaty network is not sufficient to establish customary international law. He also states that although numerous states participate in PSI, there have only been “dozens” of known interdiction exercises over the years and much fewer actual interdiction.95 Lee concludes that the lack of knowledge of actual interdictions is a hindrance to PSI becoming a norm and that this is unlikely to be overcome in the future.

Similar to Lee in taking a legal view of PSI, A. Vinod Kumar’s article “India’s Participation in the Proliferation Security Initiative: Issues in Perspective” examines PSI from the perspective of India, a nuclear weapon armed state that has neither joined PSI nor is not a party to the NPT.96 His article addresses some specific concerns from India’s perspective but also notes more generally held reservations of other countries such as those from the non-aligned perspective. He highlights the phrase “states of concern” used in the statement of interdiction principles and often by PSI endorsing states as a sticking point for many Indians, who fear that specific targets under PSI may not be acceptable for India. The author also identifies the need for PSI to be more internationally focused and led rather than perceived as a US-led initiative.

94 Customary international law has two requirements to be controlling. Opinio juris is the second element (along with state practice) necessary to establish a legally binding custom that can be upheld by international law. Opinio juris denotes a “subjective obligation, a sense on behalf of a state that it is bound to the law in question.” See, ICJ Statute, Article 38(1)(b) (the custom to be applied must be "accepted as law"). 95 Ibid, p. 43. 96 Kumar, A. Vinod. “India’s Participation in the Proliferation Security Initiative: Issues in Perspective, Strategic Analysis 33:5, 2009, pp. 686-700.

Kumar argues that under international law, maritime agreements must respect flag state consent and absent such consent, the maritime boarding and search of a vessel is prohibited under international law. PSI participant states have, over the last decade, worked around this by negotiating bilateral ship-boarding agreements with flag of convenience states.97 Kumar also notes that determining the success of PSI now and over time is and will be difficult and perspectives will surely be widely at odds between those in the PSI camp and those outside of it. For example, PSI adherents may believe that even one WMD interdiction should be considered a huge success for peace and security. Kumar emphasizes that since the number of successful interdictions is not known, what is known is vague and lacking specific facts such as senior government officials during the Bush administration mentioning a variety of numbers of interdictions over their years in office. PSI interdictions are not shared openly as they are often the result of intelligence operations. Kumar holds that the lack of information about successful interdictions makes it difficult to access the validity and vitality of PSI and given PSI highly questionable interpretation of anticipatory self-defense under international law believes PSI is not only illegal but also ineffective as a matter of practice.98

That draws into question the legitimacy of PSI and Kumar argues that legitimacy is gained solely through international law and international cooperation, and since there are no specific laws that call for actions taken under PSI, the initiative and any activities taken under PSI auspices are likely illegal. And while UNSCR 1540 might provide some interdiction authority, Kumar points out that the Security Council has not endorsed PSI nor would a General Assembly resolution favoring PSI be anything more than a mere statement of support holding no authority under international law standards.99

97 Ibid, p. 688. 98 Ibid. 99 Ibid.

Kumar is similarly adamant that United States leadership for PSI opens many questions as to the legitimacy of the activity. He argues that some believe that with the United States at the helm, PSI will target “states of concern” designated by the United States while leaving out countries it views more favorably.100 To expand and explain PSI, Kumar argues that other states should take a more active leadership role. He also maintains that PSI participants use a number of conventions to justify their actions, such as UNSCR 1540 and 1718, 2005 SUA Convention, UNCLOS and the right to self-defense. Nevertheless, none of these specifically allow for PSI activities, leaving other states concerned that their vessels may be subject to unlawful search and seizure while in transit.101

For India specifically, joining PSI would be viewed by some as a pseudo-military allegiance with the United States. Indian politicians are hesitant to establish such a relationship due to regional and international political considerations or to be seen as “cozying up” to the United States.102 Finally, many political leaders in India may have concerns over joining PSI due to the lack of United Nations oversight. They fear a link may be drawn to India’s status as a non-signatory to the NPT should India endorse the statement of interdiction principles.103

Mark J. Valencia’s article “Maritime Security Cooperation: The Politics of the Proliferation Security Initiative” is a short, critical review of PSI as it existed following the Bush administration in 2010. 104 In the article, Valencia recognizes that PSI evolved from being solely focused on interdiction at sea to include port inspections, interdictions of materials transported

100 Ibid, p. 689. 101 Ibid. 102 Ibid, p. 694. 103 Ibid. 104 Valencia, Mark. “Maritime Security Cooperation: The Politics of the Proliferation Security Initiative”, World Politics Review, September 14, 2010, .

by air and disruption of financial networks.105 He asserts that PSI during the Bush years suffered from too many shortcomings, including large legal and operational gaps and implies that other, more traditional efforts should be pursued. Valencia holds that PSI lacks transparency, stretches or violates international law, weakens the United Nations system, is politically divisive and dilutes other nonproliferation and proliferation prevention efforts. The solution Valencia envisions to bring PSI into the United Nations system or to pursue a United Nations Security Council resolution authorizing the use of force for the interdiction of WMD and WMD related materials. Specifically, Valencia argues that PSI at its formation was intertwined with US foreign policy and the war on terror, and suffers from the same concerns such as “bias, double standards, lack of transparency, unilateralism and bullying.”106 He does, however, acknowledge that PSI has helped to enhance international awareness of the dangers in the proliferation of WMD and the need to halt it and that PSI’s focus on interdictions may be helping to constrain some trade in WMD and related materials. In addition, he maintains that PSI did lead to flag state consent for boarding ships in search of suspected WMD or related materials and that as such, some small measure of success is warranted.

Valencia’s fundamental argument is that flag state consent is now the consensus exception to freedom of navigation on the high seas but that PSI interdictions in the name of “self-defense” expand the traditional definition of self-defense and are illegal under international law. He argues that to expand the definition of self-defense to include preventative self-defense for a non-imminent threat, which would be illegal under international customary or conventional law, and sets a new and dangerous precedent that undermines the foundations for peace and stability as laid out by the United Nations charter. Valencia points out that most basic concern of the most critical voices of PSI since its inception - that the United States and its allies would

105 It is worth noting that PSI sought to expand the reach of interdiction to other domains, as Valencia points out. This includes, for example, tightening domestic legal codes to ensure that where illicit shipments were sought and found in warehouses that they could be seized and that barriers to interdiction operations such as bureaucratic red- tape and communications difficulties were overcome. 106 Ibid.

roam the seas, interdicting at will - did not transpire. Therefore, he argues that in order for PSI to be effective, it must garner wide-spread international support and move away from the widely held perception that PSI is a United States-led effort. Similar to other critics, Velencia notes that there are strong reservations and concerns over how PSI “targets” certain states for interdictions. Some states view the United States as being arbitrary in targeting specific “states of proliferation concern” while granting nuclear weapon states allied to the United States an exemption from PSI activities and interdictions.107

Hiroyuki Banzai in his article “The Proliferation Security Initiative and Internationals Law: A Japanese Lawyer’s Perspective” assesses the progress of PSI from the Japanese prospective.108 Similar to other critics that focus on international law, Banzai asserts that PSI conflicts with international law, specifically that PSI implementation should be limited under the obligations of the law of the sea convention. He also asserts that the United States has achieved little progress towards achieving its goals of establishing a counterproliferation regime based on interdiction and PSI. In Banzai’s view, as PSI has grown, it made a number of fundamental changes to try to attract new members. For example, India complained of discrimination between the PSI the more active "Core Group" and the other endorsees, so PSI decided to disband the Core Group.109 He also calls into question what it means to participate in PSI. Since states join PSI by “endorsing” the statement of interdiction principles, presumably based on some level of political rather than legal commitment, states are essentially free to participate as much or as little as they would like.110

Banzai also raises the question of whether PSI can be implemented against a non- participant. International law provides freedom of navigation and innocent passage for ships traveling around the world. Specific cargo and actions have been outlawed, but the

107 Ibid. 108 Banzai, Hiroyuki. “The Proliferation Security Initiative and International Law of the Sea: A Japanese Lawyer’s Perspective”, Journal of East Asia and International Law, 1, 2010, pp. 7-28. 109 Ibid, p. 13. 110 Ibid.

transportation of WMD is not specifically outlawed under conventional international law. As such, other than through a direct United Nations Security Council Resolution, it can be argued that absent such United Nations action, WMD transfers cannot be considered non-innocent and thus safeguarded by innocent passage principles.111 Since the implementation of PSI occurred in 2003 and “during a time of peace,” the laws of armed conflict are not applicable to WMD transfers, irrespective of the Bush administration’s declaratory policy of a global war on terrorism and actions in Afghanistan and Iraq. The importance of Banzai’s argument is that the boarding of a vessel on the high seas is only permissible in the specific cases outlined in Article 110 of the United Nations Convention of the Law of the Sea when there is reason to believe crimes have been committed and a “visit” is allowed under international law. A visit, however, is not an interdiction as will be seen in the legal section. Finally, Banzai notes that no exceptions to the principles of freedom of navigation and innocent passage include the transportation, transit or transfer of WMD.112

In 2003, the United States proposed to other PSI endorsees that they should negotiate bilateral ship boarding agreements with key flags of convenience states for consensual boarding of their ships. Banzai believes the United States would like to generalize the contents of bilateral ship boarding agreements and thus make stops easier.113 In the legal field, the United States has taken steps to revise the SUA Convention in order to implement PSI as a multinational convention.114 However, Banzai argues that for this to be effective, new offenses must be added to Article 3 of the 1988 Convention thus clearly criminalizing WMD proliferation activities.115

Wade Boese in his Arms Control Today article “Proliferation Security Initiative Advances,” makes a number of key points regarding PSI and its limitations.116 First, Boese

111 Ibid, p. 14. 112 Ibid, p. 16. 113 Ibid, pp. 19-20. 114 Ibid, p. 20. 115 Ibid, p. 23. 116 Boese, Wade. “Proliferation Security Initiative Advances: But Russia and China Keep Their Distance”, Arms Control Today, 34, March 2004, .

argues that with Russia and China refusing to join PSI, there may be severe limits to PSI’s effectiveness and that China and Russia are concerned about the legality and practicality of intercepting cargo in transit.117 Additionally he notes that PSI has limitations in that participants cannot board a ship registered to a non-PSI state and in waters not controlled by a PSI state. To mitigate this issue, Boese acknowledges that the United States was in the process of conducting ship-boarding agreements with flag states of convenience such as Liberia, which maintains the 2nd largest number of flagged ships.118 He also notes that Russia was unconvinced by a January 2004 visit by Undersecretary of State John Bolton and that a Chinese spokesman following a February 2004 press conference stated that “We believe that the issue of proliferation shall be resolved through political and diplomatic means within the framework of international laws, and all nonproliferation measures shall contribute to peace, security, and stability in the region and the world at large.”119 This article is still relevant as the Chinese position has not shifted. Russia, however, did go on to endorse the statement of interdiction principles a few months after the article was published and participates in PSI activities as an OEG member fully today.

Andreas Persbo of the British American Security Information Council (BASIC) takes on the fundamental question of whether PSI is “dead in the water” or moving “full steam ahead.” Persbo notes that media reports name up to fifty states as supporting PSI, but that some of these states have raised concerns.120 Similar to Eric Yong Joong Lee and Wade Boese, Persbo is specifically interested in the concerns arising from the Chinese. He states that China is concerned about the legality of some measures of PSI121 and that they released a white paper in December 2003 on its non-proliferation policy.122 In its white paper, according to Persbo, China prefers that proliferation issues be settled through dialogue and international cooperation, within the framework of international law – arguing that PSI is outside of legitimate international law

117 Ibid, p. 1. 118 Ibid, p. 2. 119 Ibid. 120 Persbo, Andreas. “The Proliferation Security Initiative: Dead in the water or steaming ahead?” Basic Notes, British American Security Information Council, December 12, 2003, p. 2. 121 Ibid. 122 Ibid.

constructs.123 China’s concern at its essence is that United States naval power could be used to harass legitimate shipping, even if its cargo cannot be confiscated.124 Therefore, the Chinese white paper asserts that PSI states must respect the right of innocent passage in territorial waters125 and that PSI authority should be based upon current international law, not a flawed reinterpretation of customary international law.126

G.S. Khurana discusses India’s reluctance to join PSI and the United States attempts to persuade India that the time is right to join.127 In his article for Strategic Analysis, Khurana argues that while India agrees that the current non-proliferation regime is insufficient to combat WMD trafficking,128 India is concerned that PSI presents a threat to free trade in weapons, as well as chemical, biological, and nuclear items intended for peaceful purposes.129 India is also fearful that PSI endorsing states could eventually monopolize trade in these lucrative and globalized market areas.130 On a more fundamental level, Khurana notes that there is concern that by joining PSI, espionage on potential adversaries’ weapons programs could be enabled.131 He also notes that India is worried about the prospect of arbitrary inspection of vessels on the high seas in violation of the principle of freedom of navigation132 and that India views interdiction in international waters as only being permissible in specific circumstances, such as with the permission of the flag state.133 The author questions the basis for labeling some states as “states of concern”134 and the difficulty in determining the intended end-use of dual-use

123 Ibid. 124 Ibid, p. 4 125 Ibid. 126 Ibid. 127 Khurana, G.S. “Proliferation Security Initiative: An Assessment”, Strategic Analysis, 28, April/June 2004, p. 239. 128 Ibid. 129 Ibid. 130 Ibid. 131 Ibid. 132 Ibid. 133 Ibid. 134 Ibid, p. 240.

materials.135 In addition, the legality of interdicting shipments to states not party to the BWC, CWC, NPT, or MTCR is raised.136 Khurana also points out several liability and indemnification problems such as there are no provisions for compensation in the case of a mistaken interdiction.137

India has additional misgivings over PSI, including that wide-spread acceptance of PSI could set off a chain reaction of powerful states harassing the vital trade of smaller maritime states or their adversaries.138 Khurana recommends that the United States should take steps to criminalize the international transportation of WMD by sea to make clear when and under what circumstances WMD interdiction is warranted and who pays if an interdiction is conducted in error.139

As a legal matter, Khurana notes that India along with other states critical of PSI views PSI interdictions as not justified by self-defense under United Nations Article 51, and contrary to the United Nations principle of minimizing the unilateral use of force in international relations.140 As a matter of principle, PSI actions could escalate tensions with states of concern and this, given tensions in the region, are not welcome.141 Khurana concludes that “Overall, PSI is a legally questionable half-measure with the potential for escalation of the threat, further heightened by an implicit focus on North Korea.”142

With regard to other states, Khurana notes that Russia’s endorsement of PSI is conditional on it not violating international law143 and points out that China vehemently opposed

135 Ibid. 136 Ibid. 137 Ibid. 138 Ibid. 139 Ibid. 140 Ibid, p. 241. 141 Ibid. 142 Ibid. 143 Ibid.

PSI, but doesn’t rule out eventual membership.144 With regard to United Nations Security Council Resolution 1540, he notes that the resolution was aimed at obtaining greater legitimacy for PSI, but language endorsing PSI was dropped in the final draft and inclusion was opposed by India.145

Recognizing the changing nature of the threat at the time, Khurana indicates that state- based and non-state threats justify efforts to develop different international security solutions146 He goes further arguing that the United Nations Convention on the Law of the Sea (UNCLOS) is ill-equipped to deal with non-state threats147 and that UNCLOS only recognizes piracy, slave trade, and human trafficking as non-state threats.148 He sums up that, “It would not be prudent for India to join the PSI, at least for the present, when the international community’s disillusionment with United States policies is growing. However, at a later date, if a quid pro quo from the United States (formal recognition of India’s nuclear-power status?) outweighs the advantages achieved through staying out of it, accession to PSI could be considered”.149 Khurana’s fundamental argument is that India’s underlying strategy is to ensure that any future agreement on maritime interdiction should uphold the principle of freedom of navigation.150

Mark Huband and James Kynge in their article “U.S. calls on China to help curb spread of nuclear arms,” focuses on the United States’ attempts to engage China on preventing proliferation and notes how the State Department urged China to help curb the spread of WMD.151 Additionally, the authors acknowledge that John Bolton’s attempted to convince Chinese officials to join PSI, but ultimately, these efforts did not lead to a PSI endorsement.152

144 Ibid. 145 Ibid. 146 Ibid. 147 Ibid, p. 244. 148 Ibid. 149 Ibid, p. 245. 150 Ibid. 151 Huband, Mark and James Kynge, “U.S. calls on China to help curb spread of nuclear arms”, Financial Times, February 17, 2004, p. 1. 152 Ibid.

Huband and Kynge assert that while China it opposes WMD proliferation, it has not and will not commit to joining PSI.153 They argue that this is due in part to the argument by critics that say PSI has no legal foundation, and the United States is reluctant to seek a UNSC resolution justifying PSI.154 Furthermore, since China criticized PSI’s unilateralism and double standards in a recent white paper on nonproliferation, it still does remain supportive of a United Nations role for broader proliferation prevention if the conditions are favorable.155 The article also notes a curious fact that Chinese nuclear weapon designs were found in Libya during the investigation of the A.Q. Khan network thus raising the question on whether this fact could be used to gain leverage over China and its PSI stance.156 There is room for cooperation, however, and the authors note that the United States needs China’s cooperation on handling North Korea’s nuclear ambitions.157

Luis Gutierrez Esparza is perhaps the most critical voice over the motivations and objectives of PSI.158 Gutierrez Esparza argues that PSI is part of a hegemonic strategy by George W. Bush and the United States to dominate the international community.159 He further maintains that PSI is an effort by the United States to control international airspace and maritime routes160 in order for the United States to monopolize espionage and the interception of ships and aircraft in international space under the pretext of counter-proliferation.161 He also notes that other countries have expressed concerns over the perception that the United States is attempting to strengthen its supremacy in WMD technology.162 Furthermore, there is the worry that there

153 Ibid. 154 Ibid. 155 Ibid. 156 Ibid. 157 Ibid. 158 Esparza, Luis Gutierrez, “The Krakow Initiative: Another Blow from Bush”, Nuclear Age Peace Foundation, November 11, 2003. 159 Ibid, p. 1. 160 Ibid. 161 Ibid. 162 Ibid.

are many cutting-edge technologies used in WMD development and production, and that these could be subject to confiscation by the United States and its allies.163

As a legal matter, Gutierrez Esparza maintains that some countries have pointed to the danger of the flexible interpretation of the legal basis for intercepting international transport.164 This, he argues, could allow interdiction activities to threaten free international trade and proper compliance with purchase-sale contracts.165

Gutierrez Esparza argues that under the pretext of the threat from bioterrorism, the United States is seeking to impose stricter control over foodstuffs and agricultural products, which, in violation of World Trade Organization rules and will pressure exporter countries.166 Additionally, establishing future bioterrorism laws will create barriers to the development of free trade in agricultural products by Latin American countries.167 He concludes that while stopping WMD proliferation is an important component of global and collective security, PSI is structured in a way to advance United States’ hegemonic domination168 and calls on PSI endorsing states to respect international law and the norms of the United Nations.169

Andrew Newman and Brad Williams in “The Proliferation Security Initiative: the Asia- Pacific Context,” focus on the Asia-Pacific perceptions of PSI and begin by acknowledging that, not surprisingly, North Korea is the most vocal opponent of PSI and calls the interdiction exercises a prelude to war.170 They note that indeed, many PSI exercises are directed at North Korea, which is a state of concern171 and that there is good reason for that since it is apparent that

163 Ibid. 164 Ibid. 165 Ibid. 166 Ibid. 167 Ibid. 168 Ibid, p. 2. 169 Ibid. 170 Andrew Newman and Brad Williams, “The Proliferation Security Initiative: the Asia-Pacific Context”, The Nonproliferation Review, 12, July 2005, p. 310. 171 Ibid.

North Korea had arms-related contacts with and/or sold missiles to such countries as Iran, Pakistan, and Yemen, and uranium hexafluoride to Libya.172 They also argue that the illicit commerce provides North Korea with the foreign currency needed to ensure the regime’s survival.173 Therefore, while PSI endorsing states repeatedly declare that PSI is not focused on any particular state, Newman and Williams point to North Korea as a key global WMD proliferation problem and one, despite the rhetoric, was a state PSI was created to confront.

China, they stress, is vital to curb North Korean proliferation and is committed to countering the spread of WMD.174 They also note China’s white paper and point out that it omits PSI from a list of multilateral nonproliferation regimes with which it aims to cooperate.175 As for PSI, the article maintains that China has an ambivalent approach toward PSI and that while it understands the concerns of PSI participants, China emphasizes the importance of international law and universal participation176 and while the United States and others are opposed to institutionalizing PSI in the United Nations, as China prefers this strategy.177 Within China, there are competing interests and perspectives on PSI. The authors argue that it appears that the Peoples Liberation Army (PLA) are against PSI and the Ministry of Foreign Affairs are generally supportive of it.178

The article continues to note that Indonesia is opposed to PSI, despite displays of concern for WMD proliferation.179 This, they argue, is based on traditional Indonesian resistance against unilateral regimes falling outside international norms180 and concern over the degree of United States hypocrisy in denying nuclear technology to other states and denying developing countries

172 Ibid. 173 Ibid. 174 Ibid, p. 311. 175 Ibid. 176 Ibid. 177 Ibid. 178 Ibid. 179 Ibid, p. 312. 180 Ibid, p. 313.

access to the benefits of dual-use technology.181 As with the case of China, Indonesia’s possible inclusion as a PSI endorsee would be contingent upon its institutionalization within the United Nations.182

Finally, as for South Korea, Newman and Williams note that South Korea is reluctant to endorse PSI since such a move could anger and provoke North Korea and that the current political leadership desires an easing of tensions on the peninsula.183 South Korea’s reluctance is, however, not outright opposition of PSI since South Korea is an active participant in global nonproliferation regimes and a close ally of the United States 184 so it is possible that South Korea will act consistent with PSI but not be an endorsee of it. The Andrew Newman and Brad Williams article was published in The Nonproliferation Review in July 2005 and predates South Korea’s endorsement of the Statement of Interdiction Principles in April 2009 when it officially moved from “observer” status to endorsee.185

Jack I. Garvey in “The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative,” maintains that the PSI approach unnecessarily undermines the legitimacy and effectiveness of interdiction186 and that the very nature of WMD threats requires the advantages of an institutional organization.187 His focus is on organization and process and he argues that institutional process provides the necessary capacity for intelligence sharing, mutual critique, and the maximization of political consensus.188 The institutional process would provide a more solid legal, practical, and political

181 Ibid. 182 Ibid. 183 Ibid. 184 Ibid.

185 Corn, Geoffrey S., Rachel E. VanLandingham, Shane R. Reeves, U.S. Military Operations: Law, Policy, and Practice, Oxford University Press, November 4, 2015, pp. 748-750. 186 Garvey, Jack I. “The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative”, Journal of Conflict and Security Law, 10, 2005, p. 125. 187 Ibid. 188 Ibid.

foundation for countering the WMD threat.189 Garvey contends that the concept of interdiction in the PSI model minimizes international legitimacy since it lacks any mechanism for achieving sustained multilateral consensus.190 He also criticizes PSI for a lack of standards and common practices that increases the risk of conflict resulting from interdiction.191 There is also concern over the dominance of the United States role in PSI and Garvey argues that if all determinations for interdictions are under effective U.S, control, then international legitimacy is trivialized.192

As for interdiction and organization, Garvey notes that PSI is a state-focused concept and process, suited to an organization of states.193 Organizations extend the legitimacy of political action beyond that possible in PSI194 and institutions have an agreed process for the formulation of joint positions.195 As such, the flexible nature of PSI is actually a hindrance to effective interdiction. He maintains that a more formal organization would not leave the United States vulnerable or any less capable to counter the proliferation threat since it always has the ability to act unilaterally.196 As for the future, Garvey recommends that the United States take the opportunity to internationally institutionalize its national-level security practices197 and pursue an organizational format that provides an opportunity for joint intelligence evaluation.198 In a crisis, PSI’s collection of partnerships will not be more efficient than a well-designed organizational structure.199 He ends with the argument that informal consensus processes become less effective as membership increases200 and that PSI should be reconciled to the structure of global anti- proliferation activities.201

189 Ibid. 190 Ibid, p. 136. 191 Ibid, p. 137. 192 Ibid. 193 Ibid, p. 138. 194 Ibid, p. 139. 195 Ibid, p. 140. 196 Ibid. 197 Ibid, p. 141. 198 Ibid, p. 142. 199 Ibid, p. 144. 200 Ibid. 201 Ibid, p. 146.

Siddharth Varadarajan in his Times of India piece “India, Pak join forces against U.S. move on N-Proliferation” notes that both India and Pakistan were concerned over the Bush administration initiatives in the United Nations and through activities such as PSI on nonproliferation.202 Both India and Pakistan at the time in 2004 argued that the Security Council cannot require countries to enact domestic legislation pursuant to Security Council mandates and that the United Nations is not the most appropriate forum to address nonproliferation-related issues.203 Both countries stressed that agreements should be unilaterally negotiated, not imposed.204 Specifically, Pakistan worried that United Nations could authorize coercive measures against a country for the actions of individuals outside its control.205 India would not accept obligations arising from treaties it has not signed.206 China, to some measure, appeared to agree with this position since the United States removed language in the Draft of UNSCR 1540 that condoned the interdiction of WMD shipments after China threatened a veto.207 Both countries also condemned PSI and asserted that it rested on shaky legal foundations and that interdiction is not supported by United Nations Convention on the Law of the Sea (UNCLOS).208

On the United States’ side, Rep. Brad Sherman (D-CA), at the time the second ranking member of the House Foreign Affairs Committee in the US Congress critiqued PSI during a hearing on nonproliferation in 2005.209 In his opening statement he acknowledged that PSI consisted of a loose coalition but that the meaning of membership was confusing and ambiguous.210 He noted that there was virtually no legal authority for the United States to board

202 Varadarajan, Siddharth. “India, Pak join forces against U.S. move on N-Proliferation”, The Times of India, April 24, 2004, . 203 Ibid. 204 Ibid. 205 Ibid. 206 Ibid. 207 Ibid. 208 Ibid. 209 “Proliferation Security Initiative: An Early Assessment”, Subcommittee on International Terrorism and Nonproliferation of the House Committee on International Relations, 109th Congress, June 9, 2005. 210 Ibid.

a ship outside its territorial waters without agreement of flag state or other territorial state but that the problem of legal authority may be solved by cooperating with flag of convenience jurisdictions.211 Finally, Rep. Sherman noted that the lack of South Korean participation was disappointing and that the United States was too hesitant to pressure China to reign in North Korean proliferation.212

2.4 Summary The purpose of this literature review is to demonstrate that the literature overwhelmingly reflects assessments based on relative benefits or limitations of PSI and does not, to any great degree, delve into the process by which PSI was conceived and implemented. With the exception of Susan Koch, all the literature can be assessed across three broad categories: those that view PSI as a continuation of proliferation prevention activities; those that see PSI as something new and innovative and largely an improvement; and finally, those that see PSI as something new and for the most part, infringing on state sovereignty. The literature review also highlights a few other key points. First, that concern over PSI’s intent and viewpoint as a United States focused effort to expand the reach of United States’ interest subsided after the first few years of PSI practice. This is due to several factors such as the success of a few notable interdictions such as the BBC China, the openness of PSI exercises and seminars, the expansion of PSI endorsing states and a concerted effort by those states to articulate clearly what PSI is and what it is not. Second, legal concerns over PSI remained throughout the Bush period and -- particularly with regard to interdictions on the high-seas -- remain today.

While some issues such as strengthening domestic laws to enhance territorial sovereignty against WMD proliferation fell away, other issues such as those touching on freedom of navigation and innocent passage remained problematic. For example, the ability to stop and

211 Ibid. Rep. Sherman notes that Congress is regularly asked to approve free trade agreements with Central American countries that do not cooperate with the United States on counterproliferation. Perhaps linking these two issues, he argues, might be a way to induce better cooperation on regional nonproliferation activities. 212 Ibid.

search a ship on the high seas after master consent is still debated, with the United States favoring this and most of the rest of the world, including PSI endorsing states, apposed. Third, it took years for PSI to be viewed as part of the larger proliferation prevention framework and only after the United Nations Security Council Resolution 1540 was enacted did PSI enjoy greater appreciation as a proliferation prevention tool. This is significant since it implies that there were a number of questions over PSI’s status as a legitimate tool that remained prior to UNSCR 1540 and the interdiction of the BBC China. Finally, as a participant observer in the development of PSI, the literature supports my contention that most scholarship focuses on the relative merits of PSI and little attention is given to the security situation and the process that led to the creation and implementation of PSI.

Chapter 3: The International Security and Proliferation Environment 2001-2008

Our Nation's cause has always been larger than our Nation's defense. We fight, as we always fight, for a just peace—a peace that favors liberty. We will defend the peace against the threats from terrorists and tyrants. We will preserve the peace by building good relations among the great powers. And we will extend the peace by encouraging free and open societies on every continent. George W. Bush, 20021 3.1 Overview In order to properly assess and understand the process by which PSI was conceived and developed, it is important to recognize the unique set of circumstances that existed at the time. This is particularly the case with regard to the threat environment and the fear of WMD state development and the prospect of WMD in the hands of terrorists in the post 9/11 world. The George W. Bush administration came into office in 2000 with the strong conviction that states matter. States build weapons of mass destruction, their leaders, from Saddam Hussein to Kim Jong Il, and later to Mahmoud Ahmadinejad were the ones who led the large-scale state-based programs required to develop weapons of mass destruction, and they represented the greatest threat to use them. States mattered and for the Bush leadership history demonstrated that states could be deterred and coerced if enough of the right mix of incentives and threats were applied. States and their leaders had “return addresses” and any terrorist or non-state actor could be deterred by threatening the state they were active in. For the Bush team, states were the actors that mattered in the global commons and sovereignty was fundamental concept for international relations.

1 Bush, George W. “Speech to the Students and Faculty of the US Military Academy”, The White House, June 1, 2002, https://georgewbush-whitehouse.archives.gov/news/releases/2002/06/20020601-3.html>.

The return address perspective changed after September 11, 2001. States could be targeted, but it was different if the state was essentially a failed state or one that had large and ungovernable regions or spaces where terrorists had a free hand.2 Calling these spaces ungovernable was merely so in terms of sovereignty since many factions, organizations and rogue elements acted in this vacuum as de facto governments providing typical government services from local courts and tribunals to police and social services functions. As Jeffrey Record noted in characterizing the Bush Doctrine:

(l)ike other states, rogue states have “return addresses” in the form of attackable assets, including leaders who, unlike suicide bombers, value their lives. In the case of Iraq, these assets include the person of Saddam Hussein, his internal security services, the Special Republican Guard, the Republican Guard, the Ba’ath Party leadership, and Saddam’s palaces.”3

Yet, this characterization failed in places such as Afghanistan.

Following 9/11, the Bush administration still maintained that states were the primary actors in geo-politics, however, their focus on the threat shifted to global associations of like- minded radicals with little in the way of a return address. The greatest threat facing not only the United States but also indeed the world suddenly appeared at the intersection of accessible WMD technology and terrorism. As President Bush famously stated in 2004, “The greatest threat before humanity today is the possibility of a secret and sudden attack with chemical, biological,

2 See, Stigall, Dan E. “Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law”, Notre Dame Journal of International & Comparative Law, Vol. 3: Iss. 1, April 4, 2013, . 3 Record, Jeffrey, “The Bush Doctrine and War with Iraq”, Parameters, Spring 2003, p. 13.

or radiological, or nuclear weapons.”4 This perspective, and the compelling fear of WMD in the hands of radicals that could not be deterred, drove much of the Bush administration’s policy for the next seven years. Indeed, it helped formed the basis of the Secretary of Defense Donald Rumsfeld’s insistence on “capabilities based planning” and acquisition, a departure from the traditional threat and intelligence based planning and acquisition. Essentially, Capability-Based Planning (CBP) was developed as an alternative to threat-based planning.

It represents an attempt to break down traditional stovepipes and provide for transparency and coherence. CBP provides a more rational basis for making decisions on future acquisitions, and makes planning more responsive to uncertainty, economic constraints and risk. CBP provides a framework to support analysis and facilitate risk management. It focuses on goals and end-states and encourages innovation. It starts by asking questions regarding what we need to do rather than what equipment are we replacing.”5 The problem with a capabilities-based approach was quickly apparent; how do you know what capabilities to develop absent an understanding of the threat environment of today and tomorrow?6

Can any state, even one as powerful as the world’s sole superpower, prepare for and fund programs to address all potential threats to the homeland and to allies and interests abroad?

The Department of Defense’s emphasis on developing capabilities across a complex and wide ranging set of scenarios was based on an assumption that in an era where surprise is likely,

4 King, John and Suzanne Malveaux. “Bush proposes steps to halt WMD proliferation: Says such weapons are 'the greatest threat to humanity today”, CNN, February 12, 2004, . 5 “Guide to Capability-Based Planning,” The Technical Cooperation Program, Joint Systems and Analysis Group, Technical Panel 3, JSA-TP-3, August 6, 2004. 6 For an interesting take on the demise of capabilities-based planning, see Ricks, Thomas E. “The Pentagoner: The Long, Slow Death of Capabilities-based Planning,” Foreign Policy, January 5, 2015, .

irrespective of an actual crisis facing the United States or its allies, capabilities must be available to deal with any threat. 9/11 was neither envisioned nor planned for and in the absence of an ability to understand where the next attack may be or originate from, the focus needed to be on capabilities that would span a range of threats. Unique capabilities would also be needed to combat the most dangerous threats, those from weapons of mass destruction. As Donald Rumsfeld, the then-US Secretary of Defense put it, “A capability-based strategy [is] one that focuses less on who might threaten us or where we might be threatened, and more on how we might be threatened and what we need to do to deter and defend against such threats.”7 This new approach was unveiled as defense policy in the 2001 Quadrennial Defense Review Report that states in relevant part:

A capabilities-based model - one that focuses more on how an adversary might fight than who the adversary might be and where a war might occur - broadens the strategic perspective. It requires identifying capabilities that US military forces will need to deter and defeat adversaries who will rely on surprise, deception, and asymmetric warfare to achieve their objectives. Moving to a capabilities-based force also requires the United States to focus on emerging opportunities that certain capabilities, including advanced remote sensing, long-range precision strike, transformed maneuver and expeditionary forces and systems, to overcome anti-access and area denial threats, can confer on the US military over time.8

This represented a departure from prior defense planning and acquisition policy since it no longer marshaled capabilities to the most likely scenarios, but sought to develop a wide array of capabilities that could be used across a wide threat spectrum. September 11, 2001 demonstrated the fact that surprise was likely in the current and future threat environment and in an era where intelligence limitations could prove fatal, new capabilities and more flexible

7 Ibid. As cited by Ricks. 8 US Department of Defense. Quadrennial Defense Review Report, September 30, 2001, p. 13-14.

defense planning would be required to mitigate against surprise.9 Surprise was likely due in part to a lack of intelligence coordination and an inability to develop a common picture of the threat environment. As the 9/11 Commission Report detailed, “Information was not shared, sometimes inadvertently or because of legal misunderstandings. Analysis was not pooled. Effective operations were not launched.”10 This finding in large measure encapsulates the thinking of the time and the urgency of the immediate threat held by the administration that led first to the creation of the Department of Homeland Security and later to the intelligence reform across the Interagency.

To emphasize just how immediate and important the threat posed by terrorists in general and the threat from weapons of mass destruction was at the time, consider the “one-percent doctrine.” As described by Ron Suskind, US Vice President Richard Cheney observed that:

If there's a 1% chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It's not about our analysis ... It's about our response.11

The shift here is important and represents a move toward lower probability events not ones with a higher probability that is based on threat analysis and intelligence. Though of low probability, the catastrophic potential from WMD threats pointed to developing new policies, procedures and frameworks able to produce capabilities to detect, prevent or at least effectively respond to attacks with high consequences, such as WMD terrorism. This fear that terrorists could acquire WMD also drove much of United States’ strategy development during the Bush

9 Rovner, Joshua and Austin Long. “Intelligence Failure and Reform: Evaluating the 9/11 Commission Report”, Breakthroughs, Vol. XIV, No. 1, Spring 2005. 10 “The 9/11 Commission Report.” The National Commission on Terrorist Attacks upon the United States, W.W. Norton, 2004, p. 353. 11 Suskind, Ron. “The Untold Story of al-Qaeda's Plot to Attack the Subways,” Time, June 26, 2006. The one- percent doctrine is also often referred to as the “Cheney Doctrine.”

administration.12 In fact, one year after 9/11, the Bush administration issued its National Security Strategy, pledging, “We will disrupt and destroy terrorist organizations by: direct and continuous action using all the elements of national and international power. Our immediate focus will be those terrorist organizations of global reach and any terrorist or state sponsor of terrorism which attempts to gain or use weapons of mass destruction (WMD) or their precursors.”13

To understand how the Bush administration developed their combating WMD strategy, it is worth exploring how they viewed the threat.

3.2 Global, Networked and Increasingly Private

Following September 11, 2001, there was greater recognition that the threat from the proliferation of weapons of mass destruction was global, networked, adaptable, and facilitated by private actors like A. Q. Khan who sought to benefit financially by exporting the world’s most dangerous technology. This was no longer a world where rational state actors used economic and military suasion to gain advantage over adversaries but a world where actors with unknowable motives could strike from afar with no warning and perhaps with no attribution. While the Bush administration came into office convinced that states matter and that any nefarious activity can ultimately be “pinned” on a state, it became clear in Afghanistan that there were large ungoverned or ungovernable spaces where traditional state sovereign power could not be exercised. Thus, the important albeit late recognition that individual states may not be able to solve the WMD proliferation problem single-handedly, let alone hope to safeguard their own borders isolated from important global actors, be they public or private, became manifestly apparent. This perception was in large measure shared by the American public. As such, there

12 National Security Strategy of the United States, The White House, September 2002. 13 Ibid. p. 6.

was strong political support for safeguarding the homeland, punishing al Qaeda and deterring other bad actors such as Iraq, Iran and North Korea from engaging in destabilizing behavior.

Because of this recognition, it became clear that proliferation control regimes premised on state-to-state agreements were likely to come up short since they ignored the growing threat posed by non-state actors and the role the private sector plays in proliferation, wittingly or not.14 This did not necessarily mean that the entire framework of proliferation prevention built on Cold-War threats needed to be jettisoned or started de novo, but it did mean that the current system was not meeting the current challenges in the post 9/11 world. Therefore, it was no longer sufficient to argue over particular treaties or to wish the NPT were “more verifiable” or to hope difficult states will cooperate more fully with the IAEA in the future. Indeed, the fundamental underpinnings of nonproliferation agreements based on the primacy of sovereignty that states will fulfill their international commitments and that they have the capacity to do so, retaining the ability to control what goes on within their borders, seemed well removed in the hamlets of Afghanistan. Following September 11th, many questioned whether or not the sanctity of sovereignty remained a viable given the threat from non-state actors. The consensus that evolved in the Bush administration was that when WMD was involved, the states were too high. Moreover, when it came to proliferation, it became clear that there were too many failing or failed states; too many opportunities for global networks, designed for speed, efficiency, and security in ways governments are not, to act globally. James Russell at the US Naval Post Graduate School argues that there are at least five related reasons that proliferation networks matter: “They make WMD acquisition easier; they make WMD acquisition less detectable; they

14 For and interesting article on the private sector and industry and their need to engage in WMD proliferation prevention, see, Stewart, Ian J. “Partnerships with the private sector to prevent proliferation,” 1540 Compass, Stakeholders Perspective, The University of Georgia, Center for International Trade and Security, Undated, pp. 41- 43, . Stewart argues, “The good-practice guidelines recently recognized by the NSG provide a case in point. While such guidelines cannot be binding, they do provide a basis for coordinated efforts to reach out to industry.” These guidelines are similar to the statement of interdiction principles in PSI.

may hasten WMD acquisition; they decrease state control over WMD technologies; and, they continue the erosion of the export control regime.”15 All of these attributes show why the proliferation threat jumped to the front of security-related discussions and called for new and different approaches to proliferation challenges.

To combat weapons of mass destruction, the Bush administration looked at traditional and novel ways to increase the cost to proliferators for engaging in illegal WMD activities, from WMD trafficking to illegal program development. To do this, not surprisingly, traditional nonproliferation activities were expanded. The Bush administration never called for abandoning the existing structures but first sought ways to shore them up and expand them where needed, possible and executable. Nevertheless, the question remained, given the rise and role of private actors that facilitated illicit WMD activity, what mechanisms and activities could be used to either involve the private sector or at least keep them from participating in the illicit activity? This was an important consideration since it was through their networks—their ships, planes, and trucks—and through their financial institutions—investment banks, insurance, transshipping concerns—that illegal weapons and components were moved and paid for, and it is here that the process of proliferation, while arguably at its most automatic, may also be most vulnerable.

The knowledge and machinery for legitimate enterprise can often be hijacked for dangerous ends. In the chemical and biological world, much of the expertise and equipment is readily available in the private sector. In the nuclear realm, states still retain a heavy degree of control. Even here, however, the network of suppliers that collaborated with A. Q. Khan indicates that significant nuclear-relevant technologies can be acquired from non-state entities.16

15 Russell, James A. and Christopher Clary. “Globalization and WMD Proliferation Networks: Challenges to U.S. Security”, Conference Report, Naval Postgraduate School, Monterey, California, June 29 – July 1, 2005, pp. 13-15. 16 Ibid, p. 6.

Now, not only were the usual state actors of concern (North Korea, Pakistan, India, Iran, Iraq) and the fear of terrorism real, a whole world of new actors became central to proliferation prevention objectives: bankers, lawyers, trans-shippers, states of convenience for mercantile transfers on the high seas, etc. Certainly, states and corporations have different interests, motivations, and capabilities. However, without engaging the private sector and finding mutual areas of interest to combat WMD, state-based initiatives alone were likely to be late and less likely to succeed in the global threat environment that existed in the post 9/11 world.17

3.3 The Security and Threat Environment and the BBC China

In 2003, the BBC China, a German-owned freighter, was intercepted by Italian authorities on the high seas as it made its way from Dubai in the Middle East bound for Libya.18 The ship’s cargo included centrifuge components and exposed a global network—a nuclear black market—operated by the Pakistani engineer Abdul Qadeer Khan.19 A. Q. Khan, the revered “father” of the Pakistani nuclear program that successfully conducted six nuclear tests in 1998 was suddenly exposed to the world as the greatest private (or quasi-private) WMD proliferator for money and not state interests.20 The BBC China intercept also pegged Khan as the principal

17 In 2016, Poland hosted a conference on proliferation prevention and proposed a new Centre based on public- private partnership principles to counter proliferation networks. Accordingly, the International Centre for Chemical Safety and Security (ICCSS) will seek “to share the principles of safety and security; promote prevention and preparedness against the misuse of toxic chemicals; enhance security at chemical facilities and transportation of chemicals; and promote national capacity building for research development, storage, production, and safe use of chemicals. The initiative will operate as a public-private partnership and attempt to build a bridge between the security objectives of the former, and the profit-making motive of the latter.” “Implementation of United Nations Security Council Resolution 1540 (2004): Innovative Approaches to Capacity Building and Assistance”, Conference Summary Report, Warsaw, Poland, July 12-13, 2016, p. 4. 18 Kaplan, Eban. “The Proliferation Security Initiative”, Backgrounder on PSI, Council on Foreign Relations, October 19, 2006, . 19 Albright, David and Corey Hinderstein. “Unraveling the A. Q. Khan and Future Proliferation Networks”, The Washington Quarterly, The Center for Strategic and International Studies, 28:2, Spring 2005, p. 111. 20 Yourish, Karen and Delano D'Souza. “Father of Pakistan Bomb Sold Nuclear Secrets”, Arms Control Association, March 1, 2004, .

supplier of Libya’s still-embryonic uranium enrichment effort, and the greatest trafficker in nuclear technology known to the world to that date.21 While the interception of the BBC China was a forcing function and only a small link in the long chain that prompted Libyan leader Gadhafi to abandon efforts to develop weapons of mass destruction (WMD) and ultimately rollback his entire WMD program including his chemical weapons capabilities, the scope and global reach of the Khan network illustrated the challenges of private global networks to traditional state-based solutions in combating the spread of weapons of mass destruction.22

What did intelligence have to do with this? First, we discovered the extent of Khan’s hidden network. We tagged the proliferators, we detected the networks stretching across four continents offering its wares to countries like North Korea and Iran. Working with our British colleagues, we pieced together the picture of the network, revealing its subsidiaries, its scientists, its front companies, its agents, its finances and

21 Ibid. 22 Shi-chin Lin. “The AQ Khan Revelations and Subsequent Changes to Pakistani Export Controls”, NTI, December 1, 2004, . 23 Arrangements for Libya’s disarmament involved the United States, the United Kingdom, the International Atomic Energy Agency (IAEA), and the Organization for the Prohibition of Chemical Weapons (OPCW). See, Bolton, John R. “Lessons from Libya and North Korea’s Strategic Choice”, Undersecretary of State for Arms Control and International Security Remarks at Yonsei University Graduate School of International Studies, Seoul, Republic of Korea, July 21, 2004.

manufacturing plants on three continents. Our spies penetrated the network through a series of daring operations over several years. Through this unrelenting effort, we confirmed the network was delivering such things as illicit uranium enrichment centrifuges. And as you heard me say in the Libya case, we stopped deliveries of prohibited material.24

Indeed, the threat environment looked even more sinister than feared with private players with monetary motivations engaging in sweeping global proliferation. Regardless of whether Khan was a rogue actor or an instrument of Pakistani state policy (or, as is most likely, something in between), the revelations of his activities carried important lessons for countering threats to global security.25 First, in an environment characterized by technology diffusion, global markets, networks, and open borders, the efforts and ambitions of one individual could make a difference.26 This convergence of events – readily available technology with a global network helmed by a capable administrator adept at the art of deception and concealment - meant that individuals were empowered by the global market in a new and more powerful way. Importantly, this “new way” was unanticipated by security measures that were developed to meet a threat that was primarily state-based with tools developed during the Cold War. Whether in the development of state nuclear, biological, and chemical (NBC) weapons programs, or in transferring knowledge, technologies and know-how to the highest bidder, individuals could now

24 Speech of CIA Director George Tenet to Georgetown University, Transcript, posted by the Center for New American Progress, February 5, 2004, . 25 Langewiesche, William. “The Wrath of Khan: How A. Q. Khan made Pakistan a nuclear power—and showed that the spread of atomic weapons can't be stopped”, The Atlantic, November 2005, . The Khan network, in addition to laboratories in Pakistan, involved suppliers and middlemen in Dubai, France, Germany, Italy, Japan, Malaysia, The Netherlands, South Africa, Spain, Switzerland, Turkey, United Arab Emirates, and the United Kingdom. The network’s business dealings are believed to be valued in the low hundreds of millions of dollars with countries that include Libya, Iran, and North Korea. 26 Ibid.

influence regional and even the global security environment. Secondly, the A. Q. Khan network exposed major gaps in the state-based nuclear technology control regime. “Secondary proliferation” by non-state actors (entrepreneurs in this case) still remains largely outside the reach and capacity of existing international control mechanisms, and to some extent exists as a problem that the states—parties that created the Nuclear Nonproliferation Treaty (NPT) and associated agreements—simply never anticipated.27 In many respects, international control mechanisms remain mired in a Cold War mentality and lack the flexibility to adapt to the emergent threat environment. Indeed, as with the A. Q. Khan network, if there is a willing and politically unconstrained single source for virtually an entire nuclear fuel cycle, then the very premise of supply controls—that slowing the transfer of critical technologies buys time for diplomacy and politics to address proliferation incentives—is fatally undermined. This recognition led many in the Bush administration to consider approaches outside the traditional state-to-state or United Nations-based nonproliferation framework. The idea that the Khan network, aided and abetted by private machining firms, trans-shippers, financiers, and outside WMD experts was not a potent proliferation model for the future, but a state-of-the art globalized activity that began operations twelve years ago, forced many to contemplate alternative avenues to combat this type of network. If the Khan network represented the art of the possible in the early 1990’s, what was the art of the possible like in 2003, in five years or in the longer term? How were intelligence agencies adapting to this evolving challenge and would it be possible to understand the range of the threat now that it went beyond traditional state-to-state intelligence collection and analysis?

27 Recent cases such as North Korea, India and Pakistan “…highlight secondary proliferation as a critical challenge facing the nonproliferation community. How does one ensure that emerging supplier states that are not part of multilateral export control regimes do not undermine the regimes’ effectiveness by becoming alternate sources for determined proliferators? This dilemma is particularly acute regarding India and Pakistan.” Srivastava, Anupam and Seema Gahlaut. “Curbing Proliferation from Emerging Suppliers: Export Controls,” Arms Control Today, Arms Control Association, September 1, 2003.

To the degree that private procurement networks persist, they hamper the ability of intelligence agencies to assess and warn about covert WMD programs. Despite the BBC China success, the United States and its allies still lacked a complete picture of the entire Khan enterprise, and even as the work to “roll-up” the network was coming to an end in the mid- 2000s, gaps remained to fully appreciate and understand the complexities and robustness of the network. Many in government simply lacked the acumen to appreciate fully the global nature of the proliferation network. Parties to the NPT regime, including the United States and partners in Asia, were confronted with the reality that threats in the mid-2000s occurred not in a world where rapid and global proliferation were possible, but in an already post-proliferated world where significant and sensitive nuclear, chemical, and biological technical information was globally dispersed and available now for a price.28 The international community also faced the reality that their conception of the “loose nukes” problem was incomplete.

The post–Cold War strategy pursued by the West, in large measure, was focused primarily on containing nuclear “leakage” from the former Soviet Union states. In addition, while the West and particularly the United States continued to devote resources to Cooperative Threat Reduction (CTR) to address and minimize this important risk in the former Soviet states, from Libya to North Korea to countries and individuals yet unknown, the fact remained that the A. Q. Khan network profited from selling nuclear technology from an entirely different source. Indeed, from a country that was and is an ally of the United States and key partner in the global war on terror was home to the A.Q. Khan network. The concern was not only shared among WMD experts, but by the President and his closest advisors. On 11 February 2004, President Bush stated, “In recent years, another path of proliferation has become clear, as well. America and other nations are learning more about black-market operatives who deal in equipment and expertise related to weapons of mass destruction … And with deadly technology and expertise

28 Ellis, Jason D. “The Best Defense: Counterproliferation and U.S. National Security”, The Washington Quarterly, The Center for Strategic and International Studies. Spring 2003, 26:2 pp. 119-122.

going on the market, there’s the terrible possibility that terrorist groups could obtain the ultimate weapons they desire most.”29

3.4 The Bush administration Attempts to Meet the Threat

Realizing that the global threat environment was highly dynamic with the entry of new actors like al Qaeda and that those actors were aided by increasingly available technology, the future following September 11th 2001 seemed quite fluid and difficult to predict. To confront that threat, innovative policies and new flexible operational concepts to meet these challenges and anticipate over-the-horizon threats were pursued and implemented. President Bush was quite clear in 2002 explaining that the greatest threat facing the United States is WMD in the hands of rogue states and terrorists.30 This was hardly a partisan assessment. Many on both sides of the political divide view the threat posed by WMD as having a much different and vastly more dangerous character than in 1990’s. This was due not only to the Iran and North Korean cases, but to the prospect of sudden and unexpected shocks, like a terrorist organization detonating an improvised nuclear device or even a radiological dispersion device.31

Indeed, the importance of “defining WMD” and determining its meaning was probed and debated as a concept and a term of art.32 Some, for example, argued that anything capable of producing a mass casualty event should be considered a weapon of mass destruction. In this characterization of WMD where WMD-like effects are the critical determinant, it was argued by some that logically, this may lead to excluding chemical weapons and radiological dispersion

29 “President Announces New Measure to Counter the Threat of Weapons of Mass Destruction (WMD), National Defense University, Fort Lesley J. McNair, February 11, 2004. 30 National Strategy to Combat Weapons of Mass Destruction, NSPD-17/HSPD 4, December 2002. 31 IND is an Improvised Nuclear Devices. RDD is a radiological dispersion device or a so-called “dirty bomb.” 32 For an excellent analysis of understanding and defining WMD, see, Carus, W. Seth. “Defining ‘Weapons of Mass Destruction”, Occasional Paper 8, National Defense University Press, January 2012.

devices from the WMD definition since those effects are usually local, do not involve mass casualties on the order of magnitude of a nuclear weapon or contagious biological weapon and are largely first response and decontamination challenges. There were other discussions about whether or not the psychological impact of a weapon should determine whether it constituted WMD. For example, a persistent chemical agent such as mustard gas is of a vastly different character than a contagious biological agent such as plague which is completely different that a radiological device or a nuclear weapon. The debate over how to define and characterize WMD continues to this day and is important for not only criminalization purposes but also to explain to the public the character and nature of WMD. Gert G. Harigel from the Nuclear Age Peace Foundation argues, “Only nuclear weapons are completely indiscriminate by their explosive power, heat radiation and radioactivity, and only they should therefore be called a weapon of mass destruction.”33 For our purposes, the discussion following September 11th 2001 centered on a few key questions: should the definition be centered on effects-based characteristics or should WMD serve merely as convenient shorthand for policy makers? Ultimately, different criminal codes and strategies opted for a variety of definitions. For example, a shotgun under certain circumstance that is used to cause mass terror could be considered a weapon of mass destruction in some jurisdictions.

There is a long WMD proliferation tradition for lumping nuclear, radiological, chemical, and biological weapons together under the term “weapons of mass destruction.” While convenient, the Bush administration realized that it was misleading since each weapon represents vastly different underlying technologies for development, weaponization, and delivery. Different concepts of operation apply to each, and countermeasures and consequence management procedures are implemented differently depending on the weapon used. It is

33 Harigel, Gert G. “Chemical and Biological Weapons: Use in Warfare, Impact on Society and Environment”, Nuclear Age Peace Foundation, November 20, 2001, .

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important, therefore, to explore these differences and assess how the Bush administration viewed and distinguished these threats.

3.5 Nuclear Weapons

On the scale of low probability, high impact threats, nuclear weapons were clearly on top for the Bush leadership. As stated above, an argument can be made that nuclear weapons are the only “true” mass-destructive weapons given their destructive power and ability to threaten a state existentially.34 Motivations for developing nuclear weapons are varied, ranging from their unique destructive potential and perceived deterrence value to their utility as instruments of coercion or blackmail, or as a means of advancing regional or geopolitical objectives, international prestige, or perhaps for domestic political motivations. It did not go without notice that Iraq was invaded and Gaddafi removed from power – both non-nuclear weapons states while the destabilizing regime in North Korea – a WMD and specifically a nuclear capable state – did not suffer such a fate.

Potential proliferators benefit from the fact that most of the basic research, as well as the basics of weapons design, are completed and widely disseminated via the Internet and other sources.35 Indeed, in response to claims that the Chinese stole nuclear secrets from the United States, in 1999 China responded that the information was readily available on the Internet.36 Access, however, does not mean that the process is free of cost. In fact, the information itself can be contradictory, misleading, incomplete, wrong, or even intentionally deceiving. Would-be nuclear powers were traditionally challenged by high financial and resource barriers to entering the nuclear club. Additionally, nuclear programs are time-consuming and significantly labor-

34 Ibid. 35 Pottinger, Matt, “China Says U.S. Nuclear 'Secrets' On Internet,” Reuters, June 1, 1999 accessed via the Federation for Atomic Scientist’s website . 36 Ibid.

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intensive given the development process for uranium or plutonium for weapons. Acquiring the key component of a nuclear weapon, the fissile material, remains the primary barrier to developing a nuclear weapon. While states traditionally sought to reprocess plutonium or produce HEU themselves, today, as demonstrated by the A.Q. Khan network, the potential for black market procurement is a cost-efficient alternative and was a highly concerning factor for the Bush leadership. While the A.Q. Khan network specialized in the means of HEU production and not HEU itself, the important consideration is the possibility of networks to move beyond production and to facilitate the movement of HEU in the future.

As demonstrated by the availability of nuclear-related information on the Internet and proliferation networks in general, nuclear weapons technology and knowledge were seen spreading in the early and mid-2000s. Consider the non-proliferation regime at the time of 9/11. There were and are five declared nuclear weapons states under the Nuclear Nonproliferation Treaty (NPT): Russia, the United States, China, France, and the United Kingdom. These states are also the five permanent members of the United Nations Security Council. The four states outside of the NPT and possessing or suspected of possessing nuclear weapons were and are India, Pakistan, Israel and North Korea. India and Pakistan are not part of the NPT and NPT regime framework since neither state signed nor ratified the NPT. While not de jure nuclear weapons states, they certainly are de facto since both tested nuclear weapons; India in 1974 and 1998 and Pakistan in 1998. Israel has never publically admitted to having nuclear weapons but is presumed to have them. The Arms Control Association estimates that Israel has “…between 80 - 100 nuclear warheads, with fissile material for up to 200.37 North Korea detonated a low- yield nuclear device in 2006 and a larger device in 2009 and the Arms Control Association estimates that they have “separated enough plutonium for roughly 6-8 nuclear warheads.”38

37 Fact Sheets and Briefs. “Nuclear Weapons: Who has what at a Glance”, Arms Control Association, February 2015, . 38 Ibid.

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Iran is widely suspected of having a clandestine nuclear weapons programs and is clearly interested in and suspected of having some nuclear capability. In the case of Iran, delivery technology through mid-range missiles was proven.39 Globally, when the Bush administration tried to understand the threat, it estimated that the total number of nuclear warheads globally was roughly 16,300.40 That is a large number of weapons requiring extensive security. Non-state actors were also interested in acquiring nuclear capabilities. Indeed, al Qaeda leader Osama bin Laden asserted in 2001 that he had acquired nuclear weapons, although he declined to indicate where they came from.41

As denial and deception capabilities changed and technology evolved in the 2000s, a new model for nuclear proliferation emerged. This new model was not as dependent on the amount of fissile material required for entry-level weapon designs. Fissile material denial was the essence of non-proliferation strategies, preventing non-nuclear states from acquiring the means to build nuclear weapons. With the chance of acquiring fissile material, there was concern that countries could work to achieve a latent nuclear capability where they developed all the infrastructure and material needed but stopped short of weapon construction and testing. The benefits of this “latent proliferation” model would appeal to many states since it provides access to strategic capabilities without the burdens associated with maintaining large industrial infrastructures or deploying large operational stockpiles. Chaim Braun and Christopher Chyba define latent proliferation as the situation:

39 The first test was conducted on September 9, 2006. 40 “World Nuclear Stockpile Report”, The Ploughshares Fund, August 28, 2014, . 41 “Bin Laden ‘has nuclear weapons,’” BBC News, November 10, 2001, .

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in which a country adheres to, or at least for some time maintains a façade of adhering to, its formal obligations under the Nuclear Nonproliferation Treaty (NPT) while nevertheless developing the capabilities needed for a nuclear weapons program. That country can then either withdraw from the NPT and build actual weapons on short notice, or simply stay within the NPT while maintaining the latent capability for the rapid realization of nuclear weapons as a hedge against future threats. This was the path followed by the DPRK with its plutonium program and one that is likely being followed by Iran and more subtly by others.42

However, latency would be unique to each state since the time to move from latency to a weapon would depend on the strategic calculus of states and would be dependent on, among other things, how the threat environment was changing, what investments had been made, the degree to which infrastructure was in place, and the amount of fissile material already produced. In other words, a very complicated calculation for a state such as the United States to gauge. However, whether a state sought to preserve the capability to produce a few weapons very quickly or many weapons over a longer period, the spread of relevant technologies was likely to speed up the time needed to produce a weapon. The challenge of latent proliferation was well described by a paper issued by Northrop Grumman:

First, any actor with modest technical and economic resources has the potential to exercise the option of going nuclear or, in some cases, to grow existing nuclear capabilities (although many actors, protected by the United States’ nuclear umbrella, have chosen not to or have disbanded ongoing developmental efforts). Second, identifying opportunities and actions to dissuade those actors from going nuclear have

42 Braun, Chaim and Christopher Chyba. “Nuclear Proliferation Rings: New Challenges to the Nuclear Nonproliferation Regime”, International Security, Vol. 29, Fall 2004, pp. 5-49.

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met considerable challenges. Finally, it will likely fall to the United States and its closest allies to offset or counter these nuclear choices.43

This model for future nuclear proliferation – latency – remains a great concern today and appeared more urgent to the Bush administration after 9/11. The prospect of rapid, competitive, nuclear proliferation, perhaps unseen and unverifiable by the international community, occurring in volatile regions or in response to geopolitical events troubled the Bush administration. To confront this threat, the Bush administration attempted to assure and reassure friends and allies particularly in the Middle East and Asia not to pursue this strategy. The administration also reaffirmed its extended deterrence commitments to NATO and others and embarked on a cooperative approach to missile defense, indeed, the Bush administration exercised Article 15 of the Anti-Ballistic Missile Treaty (ABM) and walked away from the commitment after giving six months’ notice. This was a controversial move since the ABM treaty was hailed by many as the “cornerstone” of geo-strategic security. Needless to say, WMD proliferation in general and latent proliferation in particular posed unique challenges for intelligence and to traditional approaches to nonproliferation that focus on limiting, controlling, or monitoring fissile material and its production. If gaining the fissile material needed to create a credible nuclear device can be provided in non-traditional ways, such as through the A.Q. Khan Network or elsewhere, a strategy premised on fissile material control becomes less credible and perhaps irrelevant.

3.6 Radiological Dispersal Devices

While the barriers to entry for joining the nuclear club are quite steep, the same cannot be said for developing a radiological dispersal device (RDD). A RDD does not produce a nuclear chain reaction and does not require the weapons-grade fissile material of a nuclear device. A RDD is

43 Haffa, Jr., Robert P., Ravi R. Hichkad, Dana J. Johnson and Philip W. Pratt, “Deterrence and Defense” in The Second Nuclear Age, Analysis Center Papers, Northrop Grumman, March 2009, p. 6.

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“designed to disperse radioactive material to cause destruction, contamination, and injury from the radiation produced by the material.”44 Since it lacks the destructiveness of a nuclear weapon, some call them “weapons of mass disruption” instead of “weapons of mass destruction.”45 Irrespective of how they are characterized, RDDs were considered by the Bush administration as an ideal weapon of terror and able to cause mass panic, create dangerous and contaminated areas that would require long and expensive decontamination operations and have long term health effects on populations that were largely unknown or able to be forecasted.

There are several types of RDDs, each using a different means of dispersing radioactive elements.46 Explosive RDDs, popularly known as “dirty bombs,” use conventional explosives to scatter radioactive material over a wide area, potentially causing contamination and casualties through radiation sickness. The most famous example of a threatened use of a RDD was that of Chechen insurgents when they placed explosive RDD devices in Izmailovo Park in Moscow in 1995.47 There was little doubt that terrorist elements were, in the post 9/11 world, interested in and possessing the capability to use these weapons. The real question for the Bush White House was not if a RDD would be used but when and what were the likely targets. In Izmailovo Park, The RDD contained cesium-137 and dynamite with the cesium likely removed from cancer treatment equipment.48 After reporters were notified about its location, the RDD was defused and did not detonate. This demonstrated another important component of WMD terrorism. Just like the Anthrax scares in the United States following 9/11, a terrorist does not need a weapon or explosive device to cause panic. Merely advertising that a RDD was placed or will detonate at a

44 “Terrorist CBRN: Materials and Effects”, Central Intelligence Agency, June 2003, p. 4. 45 Burton, Fred. “Dirty Bombs: Weapons of Mass Disruption”, STRATFOR, October 5 2006, . 46 “Terrorist CBRN: Materials and Effects”, Central Intelligence Agency, June 2003, p. 4; “Fact Sheet on Dirty Bombs”, US Nuclear Regulatory Commission, March 2003. 47 Love, Richard A. “Countering Weapons of Mass Destruction Proliferation” in Cusimano, Maryann. Beyond Sovereignty: Issues for a Global Agenda, Wadsworth, 4th edition, 2011, p. 286. 48 Ibid, pp. 286-287.

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certain time has the potential to cause panic. Additionally, RDDs do not even need an explosive device. Passive RDDs involve merely placing a radiation source in a location where people will be exposed and where the wind would transport the radiological material. Attributing such an attack absent an affirmative declaration by a terrorism may be nearly impossible since it may be hard to assess how long a device had been there.

The varied methods to disseminate radiological material coupled with its availability made it a top concern to the administration. Since these materials were widely used in universities, hospitals, construction sites, industry and laboratories, there was no need to “import” the material but merely to acquire it domestically.49 Terrorists did not need to ship dangerous materials into the United States, they had access to them here. The terror concern was real and tangible, especially with regard to al Qaeda. As detailed by the US Nuclear Regulatory Commission:

Since September 11, 2001, terrorist arrests and prosecutions overseas have revealed that individuals associated with al-Qaeda planned to acquire materials for a RDD. In 2004, British authorities arrested a British national, Dhiren Barot, and several associates on various charges, including conspiring to commit public nuisance by the use of radioactive materials. In 2006, Barot was found guilty and sentenced to life. British authorities disclosed that Barot developed a document known as the “Final Presentation.” The document outlined his research on the production of “dirty bombs,” which he characterized as designed to “cause injury, fear, terror and chaos” rather than to kill. United States federal prosecutors indicted Barot and two associates for conspiracy to use weapons of mass destruction against persons within the United States, in conjunction with the alleged surveillance of several landmarks and office complexes in Washington, D.C., New York City, and Newark, N.J. I n a separate British police operation in 2004, authorities arrested British national, Salahuddin Amin, and six others on terrorism-related

49 Ibid.

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charges. Amin is accused of making inquiries about buying a “radioisotope bomb” from the Russian mafia in Belgium; and the group is alleged to have linkages to al-Qaeda. Nothing appeared to have come from his inquiries, according to British prosecutors. While neither Barot nor Amin had the opportunity to carry their plans forward to an operational stage, these arrests demonstrate the continued interest of terrorists in acquiring and using radioactive material for malicious purposes.50

While not viewed as militarily effective, RDDs remain a relatively simple and straightforward way for non-state actors to conduct an attack. For example, al-Qaeda operative José Padilla, arrested in Chicago’s O’Hare International Airport in May 2002, was accused of planning to set off a dirty bomb. He was held as an “illegal enemy combatant” and formally charged with conducting a terrorist plot against the United States though he was convicted of the lesser charge of material support and received a comparatively light sentence.

Unlike nuclear weapons, which require uranium or plutonium, RDDs can use a wide variety of radioactive materials, such as caesium-137 as noted above.51 RDDs do not necessarily cause a great deal of blast damage, but they do raise issues regarding potential long-term contamination of targeted sites. 52 With a wide variety of sources and unlimited targets with attribution nearly impossible, the concept of capabilities based planning as applied to RDDs was nearly impossible. The 1 percent rule led many to expect a RDD attack focusing efforts on detection – knowing when and attack occurred – and remediation – the ability to respond and clean-up the aftereffects.

50 “Dirty Bombs: Fact Sheet”, US Nuclear Regulatory Commission, Office of Public Affairs, December 2012, p. 4. 51 RDDs could use Cesium-137, Strontium-90, or Cobalt-60, for example. 52 “Terrorist CBRN: Materials and Effects”, Central Intelligence Agency, June 2003, p. 4; See also, “Fact Sheet on Dirty Bombs”, US Nuclear Regulatory Commission, March 2003.

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3.7 Biological Weapons

Following on the heels of 9/11, the United States was hit with bioterrorism attacks. A mere seven days after the al Qaeda attacks, anthrax spores were mailed to several news offices and government building ultimately killing five and infecting seven others.53 As George W. Bush stated, “Bioterrorism is a real threat to our country. It’s a threat to every nation that loves freedom. Terrorist groups seek biological weapons; we know some rogue states already have them … It’s important that we confront these real threats to our country and prepare for future emergencies.”54

Suddenly, not only were terrorist attacks from the sky possible, and the concept of WMD terrorism a possibility, but the WMD taboo had been broken and WMD had actually been used by a terrorist against US citizens on United States soil. The importance of this cannot be underestimated by the public and the Bush administration so closely on the heels of 9/11. When would the next bioterrorism attack take place? Would it occur at the Super Bowl or other large event? What if it were a contagious agent? What if it targeted animals and wiped out the beef or pork industry? How would such attacks even be known and what could be done to prevent them? It is important to remember that but for notes declaring that the powder in the mailed pouches was anthrax, the only way that the attacks would have been known would be through sentinel casualties – the sick, dying and dead. As Wil S. Hylton wrote in the New York Times Magazine wrote:

53 “Amerithrax or Anthrax Investigation.” Famous Cases and Criminals, Federal Bureau of Investigation, undated, . 54 Fact Sheet. “President Bush Signs Biodefense for the 21st Century”, Office of Press Secretary, The White House, April 28, 2004.

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Biological agents and their use as weapons has a long history but are probably the least- understood element of. For traditional agents such as anthrax, there still remain important gaps in knowledge such as the ability to accurately model a release within an acceptable margin of error. During the Bush years, the incredible growth of the biological and pharmaceutical industries and scientific advances such as understanding the genome and DNA sequencing made the biological sciences more accessible to new communities and actors. The “biotechnology industrial complex” became more global everyday as states invested to create what in the new, strategically important industry. These technologies allowed the creation of infrastructures that supported bioweapons programs as well as advanced legitimate scientific pursuits such as the development of pharmaceuticals. The net was troubling, increased global access to biotechnology by terrorists determined to exploit the expertise and materials needed to execute biological attacks.55

With effects ranging from lower to higher lethality, some agents such as plague pose the risk of contagion. They can be genetically modified to make effects more severe and more difficult to diagnose and treat, as genetically modified pathogens are not found in nature and hence do not have a medical track record or treatment protocol. We see this genetic drift or shift each flu season as different varieties of flu strains are used in vaccines. Biological weapons may be employed as weapons of terror, or even against agricultural targets to poison food supplies, with potentially devastating economic or psychological effect.56 Many pathogens are endemic in certain regions of the world and therefore are relatively easy to acquire. This would include, for example, hoof and mouth diseases and anthrax and contagious diseases such plague.

55 Hylton, Wil S. “How Ready are we for Bioterrorism”, The New York Times Magazine, October 20, 2011, . Hylton details some of the Bush administration’s counter bioterrorism initiatives such as Project BioShield and developing a new Anthrax vaccine. 56 Corley, Heather, "Agricultural Bioterror Threat Requires Vigilance", (Press release), Institute of Agriculture and Natural Resource, University of Nebraska, November 12, 2001.

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Biological agents have a number of attractive attributes for actors from states to would-be terrorists. First, if an adversary wants to conceal or mask an attack, there is a low likelihood of discovery since the onset of symptoms may take days or in some cases weeks to present. Once symptoms occur, it may take more time for health experts to identify that something outside of normal disease has occurred. In addition, even if an attack is suspected, laboratory confirmation also takes additional time and resources. For example, in 1984, the Rashneeshee’s, a cult that had settled in The Dalles, Oregon, spread salmonella on salad bars in ten local restaurants in order to suppress voter turnout where initiatives against the Rashneeshee’s were on the ballot. Seven hundred and fifty one individuals suffered from food poisoning and forty-five received hospital treatment.57 It took police and investigators eighteen months to uncover the plot and that happened only because a conspirator told law enforcement authorities. While the 2001 anthrax attacks that follow 9/11were bad enough,58 it worth pointing out that it was estimated that hundreds were exposed and tens of thousands were put on the preventative antibiotics ciprofloxacin (Cipro) and doxycycline (Doxy) in Washington DC, New York, Florida, and Connecticut. Contamination efforts costed millions, not including the loss in productivity. Moreover, as for attribution, it took seven years for the FBI to identify Bruce Edwards Ivins in 2008 as the one “lone wolf” attacker that was probably responsible. Ivins committed suicide and questions still remain over his possible motives and where or not there were other possible perpetrators.59 Anthrax was a clever choice since unlike smallpox which

57 Flaccus, Gillian. “Ore. Town Never Recovered From Scare”, Associated Press, October 19, 2001. See also, Schweitzer, Glenn E and Carole Dorsch Schweitzer. “A Faceless Enemy: The Origins of Modern Terrorism”, Da Capo Press, 2002, p. Page 121. 58 Amerithrax or Anthrax Investigation”, Famous Cases and Criminals, FBI, undated, . 59 Bruce Edwards Ivins, a scientist who worked at the government's biodefense labs at Fort Detrick in Frederick, Maryland was the “lone wolf” suspect who, when told about his impending prosecution, overdosed on "Tylenol with Codeine," which was reported as a suicide on August 1, 2008.

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was eradicated as a naturally occurring disease, there are between 2,000 and 5,000 reported cases each year worldwide with about five reported in the United States so an attack may be mistaken for a natural outbreak making detection and attribution that much more difficult.60

Unlike nuclear programs, the equipment, technology, and materials needed to produce biological weapons are in many cases quite similar to those used in the production of legitimate pharmaceuticals and other commercial products. As a result, the building blocks of a biological warfare program are available and relatively easy to obtain through the commercial market. Thus, the development of particular biological agents can be a low-cost option as compared to much larger investments needed for other weapons of mass destruction for states or non-state actors seeking a WMD capability. Additionally, since many biological agents have pharmaceutical or laboratory applications, concealment and/or “hiding in plane site” becomes an issue. For example, the Soviet Union/Russian Biopreparat program is an excellent example. Biopreparat was a vast agency with some 30,000 employees that produced biological warfare agents from the 1970 to the early 1990s and perhaps beyond.61 The program was largely unknown until a senior Russian scientist defected to the West and reported its existence to Western intelligence agents. His story was deemed impossible; a program of that size and complexity requiring very specialized expertise would certainly have been uncovered by intelligence communities. Yet, in 1979, there was a major leak of anthrax from a Biopreparat facility in Sverdlovsk (now Yekaterinburg in the Urals) that killed at least 105; the exact number of those infected and who died is unknown.62 This accidental release and its size was hidden under the cover of being “tainted beef.” It is worth noting that all of Biopreparat’s activities

60 For general characteristics, see, “Anthrax Fact Sheet.” US National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention, August 26, 2009. 61 Tucker, Jonathan B. “Biological Weapons in the Former Soviet Union: An Interview with Kenneth Alibek”, The Nonproliferation Review, Spring-Summer 1999, pp. 1-10. 62 Alibek, Ken and S. Handelman. Biohazard: The Chilling True Story of the Largest Covert Biological Weapons Program in the World - Told from Inside by the Man Who Ran it, Delta Press, 2000.

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were conducted in violation of the 1972 Biological Weapons Convention.63 This case demonstrates the ease of a deception strategy, for example, co-locating illicit biological warfare facilities with legitimate sites such as labs or pharmaceutical buildings, making it harder to identify a biological weapons program.

Additionally, the expertise needed to produce biological weapons is widespread, and the knowledge base is growing due to scientific advances in biotechnology and genetic engineering. This raises the concern that state programs and possibly terrorist groups could use these techniques to improve characteristics of existing biological agents or to combine genetic features of several agents to create “designer” pathogens.64 However, many advanced biotechnologies and techniques are beyond the current capabilities of terrorist groups, and in some cases would provide few advantages over existing more traditional techniques. Regardless, wide spread literature is available online and the growth of “communities of interest” focused on sharing BW information suggest that realistic opportunities for exploitation of new biotechnologies are beginning to grow.

Finally, biological weapons have a wide range of effects and can be used against a wide range of targets. This versatility makes it difficult for states to craft an appropriate response and the Bush administration took years to develop a biodefense strategy. For example, an anti- livestock, entomological warfare (using insects to attack an enemy) and anti-crop weapons may not necessarily result in the loss of any human life but certainly have the potentially to cause severe economic damage to specific industries and may be used not merely by terrorists but

63 Moodie, Michael, “The Soviet Union, Russia, and the Biological and Toxin Weapons Convention”, The Nonproliferation Review, Spring 2001, p. 59. 64 Burch, Major B. “A Historical Perspective on the Role of Genomics in the Development and Utilization of Biological Weapons”, J Science Health Univ Alabama, 7(1): 52-56, May 2010.

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industry competitors to gain market advantages.65 Similarly, an adversary may opt to use an anti-personnel biological agent that has mass-casualty but not mass-fatality characteristics. In this case, the adversaries’ intent may be to “make a lot of people sick” rather than impose fatalities. It is worth noting that caring for the sick and injured puts a much greater strain on state infrastructure than caring for the dead.

During the George W. Bush era, the Intelligence Community assessed that “perhaps” a dozen states were actively pursuing offensive BW programs.66 Although the Russian offensive program was ended by presidential decree in 1992, the restrictive nature of the Russian scientific culture and community coupled with Russia’s more aggressive defense posture continued to fuel concerns that prohibited activities were continuing as the Biopreparat case above demonstrates. Furthermore, many Russian civilian facilities possessed pathogen and toxin collections that lacked adequate security or accounting measures. This was particularly concerning at the dispersed State Research Center of Virology and Biotechnology (VECTOR) in and around Novosibirsk and Academgorodoc in Siberia.67 VECTOR is one of only two facilities that has live smallpox virus samples preserved. That other samples are at CDC facilities in Atlanta, Georgia. As with nuclear and chemical weapons, there is the possibility that Russian scientists and technicians, with unique biological knowledge, could seek to improve their personal economic status by accepting employment in countries of proliferation concern thus exporting their knowledge and expertise to the highest bidder.

65 Whitby, Simon M. “Anticrop Biological Weapons Programs”, in Whellis, Mark, Lajos Rozsa and Malcolm Dando, Deadly Cultures: Biological Weapons since 1945, Harvard, 2006, pp. 213-223. 66 Wilson, Thomas R. “Statement for the Record to the Senate Armed Services Committee on Global Threats and Challenges,” March 19, 2002, p. 18; “Counterproliferation Program Review Committee”, Report on Activities and Programs for Countering Proliferation, US Department of Defense, May 1995, p. 8; Erlick, Barry. “Global Spread of Chemical and Biological Weapons”, Testimony before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, US Government Printing, S. Hrg. 101–744 Office, 1990, p. 33. 67 The author lived in Novosibirsk in 1995 and 1996 and worked under the framework established though US- Russian Federation cooperative agreements with elements of VECTOR and other research institutes in Siberia including, inter alia, Novosibirsk, Omsk and Academgorodoc.

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During the Bush era, several other countries were suspected of pursuing offensive biological warfare research, development, and possibly weaponization. Not surprisingly, the states of the greatest concern include North Korea, China, and Iran.68 Others of concern at the time included Pakistan, Cuba, Israel, India, and Syria.69 Still other states it was believed retained the capacity to mobilize rapidly resources in support of BW programs. Most of these countries are parties to or signatories of the Biological Weapons Convention,70 which provides that:

Each State Party to this Convention undertakes never in any circumstances to develop, produce, stockpile or otherwise acquire or retain: (1) Microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; (2) Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.”71

Consequently, any offensive program would violate their obligations under that treaty.

As biotechnology created more opportunities and a greater array of options for proliferators, what traditionally was a difficult intelligence target became even more so and a great deal of attention, planning and resources were dedicated to combating the biological threat. This was increased as other naturally occurring outbreaks of SARS and H5N1 occurred.

68 Bolton, John R. “Beyond the Axis of Evil”, Remarks to the Heritage Foundation, May 6, 2002. 69 Ibid and see “Unclassified Report to Congress on the Acquisition of Technology Related to Weapons of Mass Destruction and Advanced Chemical Munitions, 1 January Through 30 June 2001”, Central Intelligence Agency Library, January 03, 2012, . 70 The official title of the Biological Weapons Convention is “The Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction.” It entered into force on March 26, 1975. 71 Ibid, Article I, Biological Weapons Convention.

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3.8 Chemical Weapons

As with the radiological threat (RDDs), the chemical weapons (CW) threat was a high concern for the Bush administration following 9/11 and the Amerithrax case. Dangerous chemical are widespread, readily available and can be highly toxic and lethal. As a weapon, they can be easily acquired and employed since they are widely available. Chemical weapons make use of the toxic properties of various chemical compounds to kill, injure, or incapacitate. These weapons saw extensive use during World War I and were responsible for thousands of injuries and deaths. One estimate of poison gas casualties in WWI states that across all combatants, there were 90,198 fatalities and 1,230,853 non-fatal causalities.72 More recently, chemical weapons were used in the 1980s-era Iran-Iraq war,73 by the Iraqi government against its Kurdish citizens,74 and in a 1995 terrorist attack by Aum Shinrikyo on Tokyo subway commuters.75 Groups have long sought chemical agents for a number of reasons. First, they have been viewed as force multipliers on the battlefield or, more recently, as instruments of terror in urban areas. Second, the wide range of dispersal methods available, from very crude methods (such as briefcases filled with bladders full of sarin employed by Aum Shinrikyo) to crop dusters and other aerosol sprayers to sophisticated military munitions, leads to a range of different attack options. Third, some chemical weapons—especially “first-generation” weapons such as chlorine or phosgene, are relatively inexpensive, compared to other high-end weapons such as nuclear weapons. Virtually any country with a reasonably sized industrial base maintains the necessary infrastructure to produce first-generation chemical agents. Furthermore, the expertise and

72 Duffy, Michael. “Weapons of War: Poison Gas”, firstworldwar.com, August 22, 2009, . 73 Robinson, Julian Perry and Jozef Goldblat. “Chemical Warfare in The Iran-Iraq War 1980-1988”, SIPRI, May 1984. 74 “1988 Kurdish massacre labeled genocide”, UPI, March 8, 2010, . 75 Fletcher, Holly, “Aum Shinrikyo: Japan, Cultists, Aleph, Aum Supreme Truth”, Backgrounder, Council on Foreign Relations, June 19, 2012.

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equipment for many chemical weapons are readily available. Finally, similar to the biological weapons threat, the dual-use nature of many chemicals and equipment needed to produce a chemical weapons makes discovery of the diversion of chemicals from legitimate to illegal programs difficult. Who is to determine if a precursor chemical agent is to be legitimately used as an insecticide or lubricant versus a chemical weapon?

The Chemical Weapons Convention (CWC) builds and expands on the Geneva Protocol of 1925 for chemical weapons and includes extensive verification measures such as on-site inspections.76 The Convention is administered by the Organisation for the Prohibition of Chemical Weapons (OPCW), and is charged with conducting inspections of suspect facilities of the member states. Pursuant to Article 1 of the Convention, parties to the convention promise not:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in any military preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

Some states, however, retain active chemical weapons programs.77 Russia, for example, is estimated by Jane’s Defense to have the largest chemical weapons stockpile with roughly 40,000 metric tons at the end of the Bush administration.78 Even today, many experts have

76 The official title of the Chemical Weapons Convention is “The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.” It entered into force on April 29, 1997. 77 Jacoby, Lowell E. “Statement before the Senate Select Committee on Intelligence”, February 11, 2003. US Congress Senate Select Committee on Intelligence, Current and Projected National Security Threats to the United States, 108th Congress, 1st session, GPO, 2003, pp. 7–8. 78 “Key Facts, Chemical, Russian Federation”, Jane's CBRN Assessments, September 8, 2009.

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concerns that Russia has not declared its entire stockpile, as required under the CWC, and are worried that its illicit program is still active.79 Iran and Syria currently maintain stockpiles of munitions and are believed to be pursuing development of advanced agents with foreign assistance.80 Indeed, in Syria today, there are many reports of chemical weapon use. On 21 August 2013 in the suburbs of the Syrian city of Ghouta, Syrian government forces used Sarin and killed an estimate 1,729.81

Libya’s efforts in the chemical weapons arena attracted significant attention in the 1980s, especially with the construction of allegedly CW-related facilities at Rabta and Tarhunah. With the lifting of sanctions in 1999, Libya reportedly began renewing contacts with foreign suppliers to revive its CW efforts.82 However, in December 2003, following the interdiction of the BBC China, Libya publicly renounced its chemical weapons program along with its other WMD programs and began working with United States and international representatives to dismantle its production capabilities.83 India, an original signatory to the CWC, declared its CW capabilities, opened related facilities to international inspection, and destroyed its stockpile of agents. China, North Korea, and the Sudan are suspected of having CW programs, with the former two believed

79 Proliferation: Threat and Response, 57. 80 “Unclassified Report to Congress on the Acquisition of Technology Related to Weapons of Mass Destruction and Advanced Chemical Munitions, 1 January Through 30 June 2001”, Proliferation: Threat and Response, Central Intelligence Agency, January 30, 2002, pp. 36, 45. 81 “Bodies still being found after alleged Syria chemical attack: opposition", The Daily Star, August 22, 2013, . 82 “Unclassified Report to Congress on the Acquisition of Technology Related to Weapons of Mass Destruction and Advanced Chemical Munitions, 1 January through 30 June 2001”, Proliferation: Threat and Response, Central Intelligence Agency, January 30, 2002, p. 47. 83 See, for example, Tyler, Patrick E. “American and British Weapons Experts Return to Libya,” The New York Times, January 20, 2004, p. A3; LaGuardia, Anton. “Western Experts Arrive to Begin Disarming Libya,” Daily Telegraph, January 20, 2004, p. 11; Fidler, Stephen. “Libya to Admit Weapons Inspectors,” Financial Times, February 3, 2004, p. 11; and Fidler, Stephen. “Libya Had Sizeable Chemical Weapons Programme,” Financial Times, February 7, 2004, p. 8.

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to possess moderate to sizeable stockpiles.84 Pakistan is assessed to have clear potential to develop chemical weapons, although it remains uncertain whether it is pursuing offensive development efforts.85 Non-state actors are also suspected of pursuing activities in chemical weapons, although the available evidence is sketchy and sometimes of indeterminate credibility.86 A videotape was uncovered in Afghanistan that apparently shows dogs exposed to vapors from a “white liquid.” Some experts speculate that the gas could be a nerve agent such as sarin.87 Additionally, Ahmed Ressum, convicted for a millennium bomb plot on the Los Angeles airport, testified that he received instruction from al Qaeda on how to place toxins on doorknobs and that he was part of experiments that injected animals with a mixture containing cyanide and sulphuric acid.

Iraq had an active and advanced chemical weapons program prior to 1991. Even after the United States-led war, however, Iraq retained a latent capability and possibly hidden munitions stocks. UNSCOM, the United Nations Special Commission charged with implementing the non- nuclear provisions in Iraq following the first Gulf War, was unable to verify the destruction of several thousand chemical-filled munitions.88 The United States-led coalition began inspections of Iraq’s chemical-related facilities after its declared victory in 2003. The United States uncovered evidence that Iraq examined the possibility of resuming production of chemical agents in the 2001–2002 period, and evidence did seem to indicate that some proscribed CW-related

84 Proliferation: Threat and Response, pp. 11, 15. 85 Ibid, 28. 86 Nations in this category could include Egypt, Israel, and Vietnam, among others. For additional information, see, Cirincione, Joseph, Jon B. Wolfstahl, and Miriam Rajkumar. Deadly Arsenals: Tracking Weapons of Mass Destruction, Carnegie Endowment for International Peace, 2002, p. 52; Proliferation of Weapons of Mass Destruction: Assessing the Risks, OTA-ISC-559, US Congress, Office of Technology Assessment, US Government Printing Office, August 1993, pp. 65, 80–81. 87 Miller, Judith. “Qaeda Videos Seem to Show Chemical Tests”, The New York Times, August 19, 2002; “Al Qaeda video tapes obtained by CNN”, CNN, August 19, 2002. 88 Blix, Hans. “An Update on Inspection to the Security Council”, UN Security Council, January 27, 2003, .

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research may have been conducted by Iraqi scientists.89 However, no stockpiles of chemical munitions were uncovered, and in January 2004, David Kay, the head of the Iraq Survey Group that investigated Iraqi’s WMD programs, testified to the United Nations Senate Armed Services Committee that “We simply have no evidence” that Iraq maintained stockpiles of chemical weapons and concluded that “we were almost all wrong” in estimating Iraqi WMD stockpiles and capabilities.90

3.9 Proliferation Trends and Concerns during the Bush Administration

If any single concept gained prominence after the 9/11 attacks, it was the concern over the “nexus of WMD and terrorism.”91 This concept, that terrorist were pursuing, would get and ultimately use WMD was quite prominent in US strategies. Experts cautioned that terrorists were seeking such weapons, could not be deterred from using them, and their use would cause catastrophic damage. The result of expert consensus was that “possession = use,” which meant simply that if a terrorist organization were able to develop or acquire a weapons of mass destruction, they would use them. Given 9/11, such attacks could be sudden, with no-notice and no time to prepare or plan for such attacks or their consequences. In the hands of terrorist, especially religiously motivated ones, merely having WMD would have little deterrence, coercion or blackmail value and the intent to strike was made all too clear on 9/11.

89 Kay, David. “Statement on the Interim Progress Report of the Iraq Survey Group”, House Permanent Select Committee on Intelligence, the House Appropriations Committee Subcommittee on Defense, and the Senate Select Committee on Intelligence, October 2, 2003, . 90 Kay, David. “Testimony on Iraqi Weapons of Mass Destruction Before the Senate Armed Services Committee”, Senate Armed Services Committee, January 28, 2004. 91 Garamone, Jim. ”U.S. Combats Nexus of Illicit Networks, WMD Proliferation”, American Forces Press Service, January 20, 2014.

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The perception and in many respects the underlying working assumption that WMD possession equaled use, was underpinned by several events. The first one is as already discussed was the 1995 Tokyo subway sarin attack carried out by the Aum Shinrikyo cult and the subsequent police investigations that uncovered the extent of the group’s WMD aspirations. The investigation revealed that their planning spanned years, other sarin attacks in Matsumoto92 and included an original desire to buy a nuclear device.93 For example, the subsequent investigation revealed that only after failing to acquire a nuclear weapon and only after two failed attempts to attack the Japanese Diet with Anthrax did Aum Shinrikyo turn to the more expedient agent sarin.94 Other chemical events and threats that shaped the Bush administration’s perspectives were the October 2001 anthrax attacks in the United States, which resulted in five deaths and seventeen other infections,95 the discovery of ricin, a deadly BW agent, in a January 2003 anti- terrorist operation in London, and finding of a ricin-tainted letter in the office of Senator Bill Frist in February 2004. Of course, adding more fuel to the fire was Osama bin Laden’s declaration that the acquisition of, and therefore use of WMD was a religious duty. In the now famous interview with Time magazine, when asked if al Qaeda was interested in obtaining chemical or nuclear weapons, bin Laden responded, “Acquiring weapons for the defense of Muslims is a religious duty. If I have indeed acquired these weapons, then I thank God for enabling me to do so.”96 Similarly, he said to ABC News, “If I seek to acquire such weapons, this is a religious duty. How we use them is up to us.”97 Indeed, after coalition forces entered

92 “Main Matsumoto sarin victim dies 14 years after attack”, The Yomiuri Shimbun, August 6, 2008; “Survivor of Aum's '94 sarin attack dies while in coma”, The Asahi Shimbun, August 6, 2008. 93 For a very thoughtful case study on Aum Shinrikyo, see Danzig, Richard, Marc Sageman, Terrance Leighton, Lloyd Hough,Hidemi Yuki, Rui Kotani and Zachary M. Hosford. Aum Shinrikyo: Insights Into How Terrorists Develop Biological and Chemical Weapons, Second Edition, Center for a New American Security, December 2012. For a short overview, see, Clinehens, Neal A. “Aum Shinrikyo and Weapons Of Mass Destruction: a Case Study”, Air Command and Staff College, Air University, April 2000. 94 Ibid, p. 36. 95 Kiefer, Geoffrey. “Anthrax in America: A Chronology and Analysis of the Fall 2001 Attacks,” Center for Counterproliferation Research, National Defense University, November 2002. 96 Innes, John. “Bin Laden Admits He ‘Instigated’ US Embassy Attacks,” Scotsman, January 4, 1999, p. 2. 97 Transcript. “Interview with Osama bin Laden”, ABC News, December 24, 1998.

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Afghanistan to pursue al Qaeda, intelligence gathered revealed that al Qaeda was working to acquire nuclear, biological, and chemical weapons as well as to develop and test radiological dispersal devices.98 It was also reported that intelligence leads uncovered the alarming fact that al Qaeda was not merely posturing over the desire to acquire nuclear weapons but seemingly taking action to make it happen. Two Pakistani scientists from Pakistan’s Nuclear Regulatory Agency (PNRA) allegedly discussed nuclear information with al Qaeda sometime in or prior to 2001 and commented on the viability of a radiological bomb.99

Prior to 9/11, it was assumed that terrorists were reluctant to enter the realm of “mass terror” and “mass deaths” since to do so would alienate support. But 9/11 and al Qaeda changed that assumption. The original assumption was based on the theory that terrorists want political power and want more people watching a terrorist attack than they want killed by that event. The idea was that if a terrorist attack was perceived as too big, as crossing a certain threshold, public opinion, especially from those neutral to marginally supportive of the political objectives of the terrorist organization, would decrease of even evaporate.100 Large-scale mass casualty events, the argument went, would dry up public support, money and other resources and recruits. At the same time, large scale mass casualty events especially those targeting civilians would motivate the victims to seek a rapid, powerful and lethal response. It would therefore unify the targets, draw sympathy from the public, and put an urgency on investigations, law enforcement and possible military responses. Yet at the same time, many were arguing that globalization afforded terrorists the ability to broadcast the psychological shock value of large numbers of fatalities to a wider audience. Thus, though an

98 See Tenet, George. “Worldwide Threat: Converging Dangers in a Post 9/11 World”, Testimony Before the Senate Select Intelligence Committee on Intelligence, February 6, 2002. 99 Baker, Peter. “Pakistani Scientist Who Met Bin Laden Failed Polygraphs, Renewing Suspicions”, The Washington Post, March 3, 2002. 100 Quillen, Chris. “A Historical Analysis of Mass Casualty Bombers,” Studies in Conflict & Terrorism, 25, 2002, pp. 279–292,

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event would by its nature have a local impact, globalization allowed for mass casualties to be inflicted abroad, and not undermine local audiences’ sympathies for terrorist causes.101

At the time, there was a great deal of debate over the extent to which terrorist organizations possessed the necessary technical and financial resources to acquire effective WMD capabilities.102 Aum Shinrikyo was a favorite example with skeptics frequently stressing the fact that after investing roughly a billion dollars in assets and acquiring graduate-level trained scientists, Aum Shinrikyo was unable to develop biological weapons or a truly effective chemical weapons dissemination capability and in the end, only killed twelve.103 At the same time, that group’s partial success, coupled with known interest in acquisition and continuing advances in technology (usable for weapons development), suggested that sub-state actors were becoming increasing capable. Moreover, there were many misconceptions about the actual Aum Shinrikyo attack on Monday, 20 March 1995 as well. The most revealing is that the cult had terminated its sarin program months prior to the attack due to fear that law enforcement was about to take action against the cult for a prior chemical weapon attack in Motsumoto, Japan.104 What drove Aum Shinrikyo to reconstitute its sarin capability appears to be information before the attack from a source inside the metropolitan Tokyo police force that a raid on the Aum

101 Love, Maryann C. “Globalization, Ethics, and the War on Terrorism”, 16 Notre Dame J.L. Ethics & Pub. Pol'y 65, 2002. 102 “CBRN Terrorism: An Annotated Bibliography”, Center for Counterproliferation Research, National Defense University, November 2002, p. 4-5. 103 Marshall, Andrew. “It gassed the Tokyo subway, microwaved its enemies and tortured its members. So why is the Aum cult thriving?” The Guardian, July 14, 1999. Richard Danzig, former US Secretary of the Navy in his study puts the number killed as 13 and the number of injured at 6,000. Danzig, Richard, Marc Sageman, Terrance Leighton, Lloyd Hough,Hidemi Yuki, Rui Kotani and Zachary M. Hosford. Aum Shinrikyo: Insights Into How Terrorists Develop Biological and Chemical Weapons”, Second Edition, Center for a New American Security, December 2012, p. 19. 104 On 27 June 1994, Aum Shinrikyo used a converted refrigerator truck to release sarin. The aim of the attack was to kill the judges who were presiding over a case involving a real estate dispute. The cult feared the judges were about to rule against their interests. Seven people were killed and 500 were injured. Olson, Kyle. “Once and Future Threat?” Kyle B. Olson, Research Planning, Inc., Bioterrorism, Volume 5, Number 4, August 1999, .

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compound near Mt. Fuji was imminent and could occur in the next few days. The motivation for the attack appeared to be aimed at the police headquarters near Kasumigaseki station and not as a way to bring about the apocalypse, as widely reported in the press. Therefore, there is another way to view the attack; a terrorist organization with knowhow and the basic components of a chemical weapons program in a mere three days went from no weaponized capability to constituting sarin, weaponizing it and using it.

A growing prospect that terrorist organizations could acquire WMD, either on their own or with the help of others, be it a state or a smuggling entrepreneur such as A. Q. Khan, was a real concern in 2001. The intent to acquire these capabilities was clear – al Qaeda left no doubt – and the needed materials and knowledge were becoming more available. Moreover, many known proliferators such as Iran, Syria, and North Korea were state-sponsors of terrorism, raising the prospect that such states could provide weapons or material and technical assistance to terrorist groups. These groups could in turn use or threaten to use these weapons as proxies for the donor state or in pursuing their own political agendas. The possibilities were disturbing and few in the United States or elsewhere had developed the strategies, plans and capabilities to meet these threats.

Another avenue for sub-state acquisition of WMD was at the intersection of failing (or failed) states and WMD capabilities. While there was at the time no uniform or generally accepted definition of what constituted a failed or failing state, a few concepts emerged as useful. These included such attributes as the inability of a state to exercise the monopoly of the legitimate use of physical force within its borders, the lack of being able to provide public services and the inability to interact as a full member in the international community.105 In theory, a terrorist or sub-state actor could take advantage of the collapse of a WMD-capable state

105 Patrick, Stewart M. “Failed States and Global Security: Empirical Questions and Policy Dilemmas,” International Studies Review 9, 2007, pp. 644–662.

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and seize control over a portion of that state’s WMD arsenal. This was an acute concern when it came to WMD arsenals, materials, experts and research labs in the successor states to the Former Soviet Union but that concern was eased when all the nuclear related materials was consolidated within Russia and then secured with help from the Nunn-Lugar / Cooperative Threat Reduction program.106 New concerns arose after 9/11, specifically over Pakistan in late 2001 due to the stability of the government and the security of Pakistan’s nuclear stockpile.107 These concerns arose again following two attempts to assassinate Pakistan’s president, Pervez Musharraf, in December 2003.108

Western intelligence agencies learned much following 9/11 about al Qaeda’s interest in and pursuit of nuclear, radiological, chemical, and biological weapons. This new understanding shed a sobering light on how little the United States knew before that day. Before September 11, intelligence agencies believed al Qaeda was focused primarily on simple chemical warfare agents, guided by an over-inflated sense of what these weapons could accomplish in achieving mass effects. Following 9/11, a new realization emerged; that al Qaeda had in fact made a major investment in a range of chemical warfare capabilities, both simple and advanced. Analysis of an al Qaeda document recovered in Afghanistan in 2002 indicates the existence of crude procedures for producing mustard agent, sarin, and VX.109 In testimony before the Senate Select Committee on Intelligence in February 2004, former Director of Central Intelligence (DCI) George Tenet

106 Bresolin, Justin. “Fact Sheet: The Nunn-Lugar Cooperative Threat Reduction Program”, The Center for Arms Control and Nonproliferation, June 2014, . 107 Frantz, Douglas. “U.S. and Pakistan Discuss Nuclear Security”, The New York Times, Oct. 1, 2001, p. A3; Fialka, John J. and Scott Neuman. “Will Pakistan’s Warheads Stay Secure? If a War Topples Leader, Control Is Uncertain; Some Call Threat Slim”, Wall Street Journal, Oct. 4, 2001, p. A17; Richter, Paul. “Pakistan’s Nuclear Wild Card”, Los Angeles Times, September 18, 2001, p. A2; Hawkes, Nigel. “Pakistan Could Lose Control of its Arsenal”, The Times (London), September 20, 2001. 108 Noqvi, Sayed. “Musharraf survives two-pronged attack on convoy”, CNN, December 25, 2003, . 109 “Terrorist CBRN: Materials and Effects”, Directorate of Intelligence, Central Intelligence Agency, May 2003, p. 1.

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spoke of “a heightened risk of poison attacks” and the possibility of increasingly sophisticated delivery methods and tactics, including improvised chemical weapons that could create significant casualties in a crowded, enclosed area.110

Al Qaeda’s biological weapons effort was characterized by senior intelligence officials as sophisticated. In Afghanistan, the group was successful in acquiring the expertise and equipment needed to grow biological agents, including a dedicated laboratory near Kandahar.111 Anthrax was an area of emphasis, and while US intelligence agencies still lacked a comprehensive understanding of this program, the Intelligence Community viewed this as one of the most immediate terrorist WMD threats coalition in Afghanistan was likely to face.112 The threat was not only limited to the Afghan theater of operations but globally. The 9/11 hijackers made repeated inquiries regarding crop-dusters and law enforcement authorities viewed this as such a serious threat that Federal authorities grounded crop-dusters nationwide twice, questioned more than 3,000 pilots and crop-duster owners, and closed smaller local and regional airports in the metropolitan Washington, DC area. Many of those airports stayed closed for years.

Through intelligence, the West also learned more in Afghanistan about al Qaeda’s nuclear agenda, which is now described as ambitious in its pursuit of the materials and expertise required to construct a radiological dispersal device and possibly other kinds of nuclear devices. The Intelligence Community at the time assessed that construction of a “dirty bomb” is well within al-Qaeda’s capabilities provided it obtained the radiological material needed.113 Since the

110 “The Worldwide Threat 2004: Challenges in a Changing Global Context”, Testimony of Director of Central Intelligence George J. Tenet, Senate Select Committee on Intelligence, February 24, 2004 (as prepared for delivery), p. 4. 111 “The Worldwide Threat 2003: Evolving Dangers in a Complex World”, Testimony of Director of Central Intelligence George J. Tenet, Senate Select Committee on Intelligence, February 11, 2003, p. 4. 112 Ibid. 113 Ibid.

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Chechens were able to construct up to four RDDs in Izmailovo Park in Moscow in 1995, most intelligence and security analysts viewed this as a real and “validated” threat.

While al Qaeda was assessed as being the most advanced and the principal WMD-related concern, there were two to three dozen other terrorist organizations that were believed to be interested in acquiring WMD, particularly chemical weapons. In addition, their interest may have been driven not so much by an objective analysis of United States’ vulnerabilities as by the public and open discussions common in the United States about fears of WMD and the relative ease with which terrorists could mount devastating attacks. According to press accounts, an April 1999 memo apparently written by Ayman al-Zawahri comments on al-Qaeda’s decision to acquire chemical and biological weapons, “…despite their extreme danger, we only became aware of them when the enemy drew attention to them by repeatedly expressing concern that they can be produced simply.”114 As states made decisions to improve their defense capabilities by developing strategies, plans and capabilities against WMD attacks, it reasoned that terrorists likewise would invest and seek WMD capabilities as a means to achieve strategic effects. The rationale was that terrorists must demonstrate not only the will to use WMD but also have the capacity to do so. Hoaxes and threats to use WMD became a very troubling problem as did mass panic after the Amerithax case, for example. In the Amerithax case alone, the FBI reported collecting 5,730 environmental samples from sixty site locations that represented an enormous strain on manpower and other resources.115

114 This memo was discovered in 2001 on a computer acquired by the Wall Street Journal that had been used by al- Qaeda members in Afghanistan. Government officials are reported to have confirmed the authenticity of the files found on the computer’s hard drive, which also contained a table of lethal doses for poisons according to body weight and a list of disease agents, including anthrax. See “Al-Qaeda: New Evidence of Chemical and Biological Weapons Pursuit”, Global Security Newswire, January 2, 2002. 115 “Justice Department and FBI Announce Formal Conclusion of Investigation into 2001 Anthrax Attacks”, Justice News, Department of Justice, February 19, 2010.

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3.10 The Bush administration View of Proliferation Trends

As detailed above, following 9/11 the Bush administration not only changed its perspective on the urgency of the WMD threat, but also on how it viewed the proliferation landscape. Dedicated state programs to develop WMD and delivery means would continue and such programs would likely start covertly, would benefit from the growing diffusion of dual-use technologies and the opportunities for concealment inherent in legitimate civilian activities as guaranteed under the “grand bargain” of the NPT, for example. Proliferation networks were seen as expanding and becoming more complex and sophisticated as states sought to reduce further the visibility of their programs and the risks associated with discovery. For the administration, there were a number of proliferation-related concerns that drove key policy makers in the administration to re-evaluate and re-write policy and strategy. These included concerns over the growing self-sufficiency of programs, secondary proliferation, proliferation networks, development of “surge” capacities and the increased challenge posed by denial and deception strategies. Individually, each probably would have prompted a thorough review of proliferation prevention strategies but taken together, they prompted an urgent reassessment of the threat, the means that existed to combat the threat and new thinking on the need for additional tools to address the threat.

One trend the administration focused on was an increased emphasis on self-sufficiency through the development of indigenous or “home grown” research and production capabilities enabled by the global diffusion of science and technology. Greater self-reliance limited opportunities for interdiction and disruption, even if it also limited access to the most advanced technologies. This constituted a tradeoff for many countries, such as North Korea, Pakistan and India where they were willing to make the investment despite the costs and resource demands that were needed to do so. The “Secondary proliferation” problem was far worse than assumed prior to 9/11 as states with mature WMD infrastructures were emerging as suppliers in their own right. As a consequence, a growing degree of mutual self-help emerged among proliferators that

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existed outside international controls. For example, Shyam Bhatia argues that former Pakistani Prime Minister Benazir Bhutto, on a state visit to North Korea in 1993 smuggled critical data on uranium enrichment to help facilitate a missile deal.116 It would seem to suggest Pakistan was willing to trade nuclear secrets for enhanced missile capabilities on a quid-pro-quo basis well outside of any formal negotiation process. This process of secondary proliferation undermined the efficacy of international technology controls such as those controls management by the IAEA, Missile Technology Control Regime, the Australia Group and the Wassanaar arrangement. Further complicating problem was the difficulty in detecting these activities much less having the capabilities to interdict them. These relationships matured over time that they extended beyond supply to include other forms of sharing (WMD operations, logistics, and command and control knowhow). Indeed, operations, logistics and command and control were all areas A.Q. Khan and his network of experts specialize in. Global proliferation networks were seen by the Bush administration as providing services not yet available by states constrained, for example, by international agreements or fear of damaging international prestige. The A.Q. Khan case demonstrated that proliferation networks are no longer limited to state-to-state cooperation. The success of the Khan enterprise over a period of decades made it essential to assume that similar networks would arise in the future and that their associations, character and objectives would be hard to discern. These networks would be led by skilled “private” entrepreneurs with access to the materials, equipment, and expertise and who knew how to evade international controls. Perhaps they would draw from other illicit networks such as the drug trade, human smuggling, counterfeiting and illicit global finance? The emergence of sophisticated networks that were geographically dispersed and functionally diverse and spanned many enterprise domains such as research and development, manufacturing, finances, and transport, presented a fundamental challenge to the system of international technology controls. Since the networks were global and self-adapting and buyers, suppliers, manufacturers and financiers would change

116 Kessler, Glenn. “Bhutto Dealt Nuclear Secrets to N. Korea, Book Says,” The Washington Post, June 1, 2008, p. A16.

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over time depending on the changing objectives of the enterprise, the system largely put in place in the 1960’s though the 1980’s required an overhaul.

At the time, there was also growing unease over the prospect of surge capacities and the rapid modernization. This concept and model is premised on having an ambiguous and deniable WMD program founded on dual-use capabilities providing “probably deniability” as it related to an illegal WMD program. Therefore, if a state developed the expertise and infrastructure needed and then acquired the materials for a WMD program, a state would be able to quickly “break out” and construct a weapons. For example, if a state had the ability to rapidly produce and weaponize biological agents, it would afford it the opportunity to field a weapon in the run-up to a conflict while limiting the peacetime exposure of the program. There is some evidence that Iraq adopted such a strategy in the aftermath of United Nations inspections in the 1990s.117 Another variant of this approach is the so-called “basement bomb”118 in which a state chooses to avoid the presumed costs and risks of overtly deploying nuclear weapons in favor of maintaining components that can be assembled quickly to deliver operational capability. Even today, it is believed that many states with advanced economies and a deep technology base could develop WMD capabilities quickly if the strategic security environment were to change; Japan, South Korea, Taiwan, Australia in the Pacific alone come to mind.

More generally, one of the fears over WMD programs and proliferation-related activities was the challenge posed actions designed to mask and hide WMD-related activities. The purpose was to find ways to deny that a program exists and/or engage in deceptive actions to hide some or part of a program. In countries such as North Korea and Saddam Hussein’s Iraq,

117 Kay, David. “Denial and deception practices of WMD proliferators: Iraq and beyond”, The Washington Quarterly, Vol. 18, Iss. 1, 1995, pp. 83-105. 118 Windrem, Robert. “Japan Has Nuclear 'Bomb in the Basement,' and China Isn't Happy,” NBC News, March 11, 2014, .

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intelligence on motivations, capabilities and weapons proved difficult to collect and assess. For example, it was not until Iraqi General Hussein Kamel al-Majid defected in 1995 that the full scope of the Iraqi biological weapons program was reasonably understood. The program was not, as the intelligence at the time suggested, a modest program and in the experimental stage but a vast deployed Iraqi capability that included 6,000 liters of anthrax and 12,000 liters of botulinum toxins weaponized in a number of delivery systems including rockets, bombs and missiles.119 As seen from the Iraqi case, denial and deception practices often attempt to distort and deny intelligence collection activities by others seeking to gain information on WMD programs. Some of the techniques were not sophisticated and most militaries in the early 2000’s were already expert in the use of camouflage, cover, concealment, denial, and deception. Yet, other denial and deception are quite elaborate, costly and very labor intensive to build and maintain. For example, it was well known that North Korea maintained deep and hardened underground facilities to hide its WMD programs including its critical command and control elements.120 Additionally and more recently, the main Iranian enrichment facility at Natanz is 30 to 75 feet below the surface and protected by concrete walls eight feet thick.121 This facility was constructed to survive an attack by air or cruise missile and other likely delivery means available to the United States and its allies. According to the Public Intelligence website:

Natanz is a hardened Fuel Enrichment Plant (FEP) covering 100,000 square meters that is built 8 meters underground and protected by a concrete wall 2.5 meters thick, itself protected by another concrete wall. In 2004, the roof was hardened with reinforced concrete and covered with 22 meters of earth. The complex consists of two 25,000 square

119 Martin, James W., George W. Christopher and Edward M. Eitzen, “History of Biological Weapons: From Poisoned Darts to Intentional Epidemics,” in Dembekm, Zygmunt F. Medical Aspects of Biological Warfare, Series: Textbooks of Military Medicine, The Borden Institute, 2007, p. 11. 120 Several sites are suspected in and around the vast nuclear facility in Yongbyong. Duyeon Kim. “Fact Sheet: North Korea’s Nuclear and Ballistic Missile Program,” The Center for Arms Control and Non-proliferation, July 2013, . 121 Iranian officials have also acknowledged the construction of tunneled facilities to protect nuclear activities.

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meter halls and a number of administrative buildings. This once secret site was one of the two exposed by Alireza Jafarzadeh in August, 2002.122

3.11 From Proliferation Threat to Proliferation Prevention

Proliferation prevention is preventing the spread of weapons of mass destruction and their means of delivery. Prevention mechanisms were seen in terms of horizontal and vertical proliferation. Horizontal proliferation prevention seeks to prevent the spread of WMD weapons and technology to states that do not currently possess them. Vertical proliferation prevention, on the other hand, seeks to prevent the increase in the number and destructiveness of weapons within a state already possessing them. In some ways, nonproliferation, the full range of political, economic, and diplomatic tools to prevent, constrain, or reverse the proliferation of WMD weapons and their associated delivery means, represents the concept of horizontal proliferation prevention focused on preventing acquisition. Nonproliferation has a long history and is the traditional focal point for US government efforts. Such efforts include the Nuclear Suppliers Group, the Nuclear Nonproliferation Treaty regime, export controls, and the Cooperative Test Ban Treaty, among others. Nonproliferation controls, such as the Nuclear Nonproliferation Treaty (NPT), rely on state parties to control weapons and technology from spreading outside their borders. For example, the NPT requires the five declared nuclear weapons states to seek disarmament and to share peaceful nuclear technology with non-nuclear declared states. The non-nuclear weapons states in return are obligated not to seek nuclear technology for military or strategic application. Therefore, nonproliferation relies primarily on diplomacy and is based on the concept that sovereign states will adhere to their treaty commitments.

122 “Iran Nuclear Site: Natanz Uranium Enrichment Site”, Public Intelligence, February 9, 2010, .

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Counterproliferation, on the other hand, represents the full range of primarily military preparations and activities to reduce and protect against the threat posed by WMD weapons and delivery means. Grounded by the understanding that nonproliferation may fail and that an operational response may be likely, counterproliferation is a blend of vertical and horizontal prevention capabilities and plans focused on preventing the use of WMD weapons.123 The concept of counterproliferation grew from a recognition in the early 1990s that nonproliferation was geared according to Cold War objectives and ignored the growing concern over non-state actors. Thus, counterproliferation was envisioned as a tool to be used when diplomacy fails; when there is a threat of use or illicit proliferation.

As demonstrated by the Libya case, the nuclear black market operated by the Pakistani engineer A.Q. Khan posed challenges to both nonproliferation (preventing WMD acquisition beforehand) and counterproliferation (stopping the spread of WMD in progress). This points to a larger lesson of the A.Q. Khan experience: that there will always be policy tradeoffs as the world seeks to combat proliferation in a complex and dangerous regional setting. The United States accepted official Pakistani assertions that there was no government involvement in Khan’s activities, and did not challenge the conditional pardon Khan received, which immunized him from criminal charges.124 He was, however, put in house arrest during much the Musharraf presidency and was released in 2009.125 At the time, the political reality was that the war on terror and the search for Osama bin Laden was deemed more important imperatives in United States-Pakistan relationship than nonproliferation. In other words, the global war on terror was a

123 Larsen, Jeffrey A. “NATO Counterproliferation Policy: A Case Study in Alliance Politics”, Occasional Paper 17, Air Force Academy Institute for National Security Studies, November 1997 describing how nonproliferation activities failed to prevent Iraq and North Korea from obtaining “rudimentary nuclear capabilities.” 124 “Pakistan pardons 'father of bomb',” BBC, February 5, 2004, . 125 Warrick, Joby. “Nuclear Scientist A.Q. Khan Is Freed From House Arrest,” The Washington Post, February 7, 2009.

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higher and more immediate priority in the aftermath of September 11th than the pursuit of nonproliferation objectives.126

Proliferation events are constantly shaping and reshaping the agenda for countering the proliferation of WMD. As decision makers confronted a dynamic proliferation environment in the post 9/11 world, policy makers sought to respond with agility and innovation. The Proliferation Security Initiative (PSI) is a good example of how a group of like-minded states dealt with the WMD proliferation threat in the post 9/11 security environment. Allies and international institutions were certainly viewed as indispensable, whether for strengthening the nonproliferation regime, deepening cooperation on interdiction, or pursuing rollback in specific countries. However, the Bush administration grew to recognize the threats posed by terrorists and other non-state actors such as A. Q. Khan existed at the seam between nonproliferation and counterproliferation and new tools, such as PSI, were needed to fill the conceptual and operational gaps between the two.

3.12 WMD Terrorism and the “Convergence Challenge”

“…powerful and readily obtainable capabilities provide contemporary extremist organizations with increasingly dangerous strategic tools. These tools include chemical and biological agents and radioactive materials.”127

Since the WMD terror threat was seen as real and growing, terrorists were assessed by which ones were most likely to acquire and therefore use WMD. Foreign terrorist, insurgent or extremist groups that threatened or had the ability to attack the United States and their allies and

126 See generally, Parachini, John. “Non-Proliferation Policy and the War on Terrorism,” The Arms Control Association, October 1, 2001. 127 “The Military Strategic Plan for the War on Terrorism”, Draft, October 15, 2004. p. 5.

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other states that expressed interest in nuclear, radiological, chemical and biological weapons were of primary concern. Indeed, the concern over WMD as an unconventional threat against overwhelming US military superiority was acknowledge in the Clinton White House. While there remained important gaps in what was known, there was an urgent search among terror groups for capabilities that could create significant casualties, destruction or social-economic disruption, and psychological effects.

Materials, technology and information available through commercial sources, the Internet, sympathizers associated with state programs, black markets and criminal organizations, and potential sources in the former Soviet Union needed to be disrupted. The priority for the Bush team was on materials that were relatively easy to acquire and handle and that could be employed surreptitiously. While terrorists acquiring and using a nuclear weapon was considered a low probability but high impact scenario, chemicals ranging from “low end” applications such as cyanide (e.g., to contaminate food or water) and toxic industrial chemicals to traditional chemical warfare agents (e.g., blister and nerve agent) were consider much more probable though the effects of chemical attacks would be much smaller.128

Biological agents were viewed as presenting a greater technical challenge to terrorists, but retained strong appeal because of their potential lethality and the possibility of covert delivery. Al Qaeda made a significant investment in the acquisition of both chemical and biological capabilities for the purpose of mounting large-scale attacks. Al Qaeda’s biological weapons program, in particular and as noted above in this chapter, was considerably more robust than originally suspected. Senior intelligence officials publicly outlined a sophisticated research program that acquired expertise and equipment needed to produce agents, received assistance

128 Mowatt-Larssen, Rolf, Bernice Lee and Felix Preston, with Gemma Green, “Preparing for High-impact, Low- probability Events,” Chatham House Report, July 2012.

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from sympathetic scientists, came close to developing a feasible production capability for anthrax, and may have investigated the option of developing a smallpox capability.

Al Qaeda’s nuclear agenda was also described as ambitious, focused on efforts beginning in the early 1990s to acquire materials, components and weapons, and to recruit foreign scientists for design and fabrication expertise. Al Qaeda may not have been successful in gaining possession of the needed fissile material or in obtaining a nuclear device, but was certainly capable of constructing and detonating a radioactive dispersal device if the material could be acquired. For this reason, the Bush administration deemed the RDD threat as highly credible. Indeed, the administration took the threat so seriously it formed the Nuclear Radiological Threat Reduction Task Force within the Department of Energy’s National Nuclear Security administration (NNSA) in 2003 to “…control radiological materials by identifying and securing high-risk materials—especially abandoned sources—both in the United States and overseas, and identifying vulnerable research reactors worldwide needing further assistance securing their fresh and spent nuclear fuel. The task force will consolidate the Energy Department’s efforts in the United States and abroad.”129

While al Qaeda remained the most serious and immediate threat with respect to WMD terrorism, and went the farthest to provide a religious, strategic, and practical justification for the use of WMD in the service of jihad,130 the threat was not limited just to al Qaeda. At the time, there were more than thirty designated foreign terrorist organizations and other non-state actors. While it was deemed unlikely that all these entities had comparably broad ambitions for

129 Kucia, Christine. “WMD Security Draws U.S. Government Attention”, Arms Control Today, Arms Control Association, December 1, 2003. 130 See Wesley, Robert. “Al-Qaeda’s WMD Strategy Prior to the U.S. Intervention in Afghanistan”, Terrorism Monitor, Vol.13, Issue 19, October 7, 2005, and “Al-Qaeda’s WMD Strategy After the U.S. Intervention in Afghanistan”, Terrorism Monitor, Vol.13, Issue 20, October 21, 2005, .

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acquiring and using WMD, or even viewed such weapons as a high payoff means to advance their specific objectives, the administration urged a case-by-case approach built on a careful assessment of each group’s intentions and capabilities. Key components to this strategy included gauging the WMD terror threat on existing and emerging terror organizations that viewed WMD as weapons of choice. The focus on these groups, however, proved to be difficult. They were comprised of highly motivated leaders and recruits, resourceful, insensitive to retribution, and not easily deterred. They operated as part of sophisticated, dispersed and adaptive networks. They focused not simply on individual attacks, but on terror campaigns that involved multiple strikes over a period of time, possibly using different types of weapons. As a matter of doctrine, their preferred means of delivery was unconventional.131

Because they were highly motivated and difficult to deter, terrorist groups intent on acquiring and using WMD were seen by the Bush administration as best countered by strategies that emphasized denying their access to WMD materials and technology from state programs, “loose WMD,” and the global trade in WMD-related items. Strategic approaches to combat WMD addressed the convergence of motivated terror groups, states with WMD, and the WMD proliferation process. This convergence was characterized as one of the most critical security challenge facing the United States. PSI and other non-universal collective action and security activities were ideal to attack this convergence challenge since they were flexible, adaptive to the changing security environment, created a bias to take action and to work collaboratively together the meet specific security threats. For PSI specifically, the endorsing states took aim at the global WMD proliferation threat.

131 Ryan, Michael W.S. “What Al Qaeda learned from Mao: The surprisingly secular guerrilla strategy behind the would-be Islamist revolution,” The Boston Globe, September 22, 2013.

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Chapter 4: The Proliferation Prevention Framework

The inability of the traditional proliferation prevention framework to counter emerging WMD threats effectively drove the need to explore new proliferation prevention capabilities, plans and other cooperative tools. Even in today’s proliferation security environment, according to the Council on Foreign Relations,

In dealing with today's proliferation challenges, international organizations work in tandem with ad hoc forums of interested parties, such as the Six Party Talks on North Korea, the P5+1 grouping on Iran, and the most recent development of biannual global nuclear security summits. But such forums have often proven inadequate to arrest the spread of nuclear technology, and states such as Iran and North Korea continue to pursue nuclear capability, if not outright weaponization. Given these trends, rising doubts about the sustainability of the nonproliferation regime are no surprise.”1

These challenges drove the need to enhance interdiction capabilities and develop activities such as PSI and the Global Initiative to Combat Nuclear Terrorism.2

Understanding the proliferation prevention framework as it existed in during the early 2000s and its key attributes is crucial for understanding how interdiction as a tool and PSI as an activity arose during the Bush administration.3 Key themes during the Bush administration for proliferation prevention included distinguishing the goals and tools of arms control, nonproliferation and counterproliferation; understanding that proliferation is a process, not an outcome; that treaties and norms can only do so much – there were practical limitations; that

1 “Issue Brief The Global Nuclear Nonproliferation Regime”, Council on Foreign Relations, June 25, 2013, http://www.cfr.org/nonproliferation-arms-control-and-disarmament/global-nuclear-nonproliferation- regime/p18984#p2>. 2 Ibid. 3 Warren, Aiden. Prevention, Pre-Emption and the Nuclear Options: from Bush to Obama, Routledge Studies in Foreign Policy, 2012, pp. 34-39.

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unexpected developments and domestic changes can drive innovation; that good intelligence was critical but difficult and that United States leadership was essential in the proliferation prevention realm.4 Essentially, if the United States did not lead, the proliferation prevention framework would not remain static but atrophy.

4.1 Nonproliferation and Arms Control

Proliferation prevention seeks to dissuade state and non-state actors from acquiring or proliferating weapons of mass destruction or their means of delivery and to deny them access to WMD-relevant capabilities. Traditionally, these efforts were categorized within two domains, horizontal and vertical proliferation. Horizontal proliferation activities seek to stop the spread of weapons to states not currently possessing WMD while vertical proliferation prevention seeks to limit the numbers, capability and power or WMD weapons already possessed by nuclear weapons states.5 This is traditionally known as the arms control domain of proliferation prevention. The Nuclear Nonproliferation Treaty is the central agreement establishing nuclear horizontal requirements for the international community. Vertical proliferation prevention frameworks and arms control agreements, such as START, tend to be focused on bi-lateral agreements between nuclear weapons possessing states. A review of the frameworks and agreements will help explain the challenges facing the Bush administration during his Presidency.

4 See, Daalder, Ivo H. James B. Steinberg, and James M. Lindsay. “Report: The Bush National Security Strategy: An Evaluation”, The Brookings Institute, October 1, 2002, . 5 Sidel, Victor W., Barry S. Levy. “Proliferation of Nuclear Weapons: Opportunities for Control and Abolition”, America Journal of Public Health, 97(9), September 2007, pp. 1589–1594.

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4.1.1 The Nonproliferation Treaty (NPT)

The NPT opened for signature in 1968 and entered into force in 1970 and is generally regarded as the “cornerstone” of the broader nonproliferation regime.6 It is a “discriminatory” treaty and creates two categories of states, nuclear weapons states (NWS) and non-nuclear weapons states (NNWS). The nuclear weapons states are those that existed as of 1968 and are the United States, Russia, the United Kingdom, France and China. All other states parties to the NPT are non-nuclear weapons states. It is nearly universal with all but four countries states parties to the treaty. The four states outside of the NPT are India, Israel, Pakistan, and North Korea, which withdrew in 2003.7 Significantly, each of these states has or is suspected of having nuclear weapons. The NPT aims to prevent the spread of nuclear weapons to additional states, while still allowing for access to peaceful nuclear technology under international safeguards.

The NPT contains three central components.8

• Non-Proliferation: non-nuclear weapons states agree not to pursue nuclear weapons while the five nuclear weapons states agree not to transfer nuclear weapons technology to other states. • Disarmament: Commits nuclear weapons states to move in good faith toward eventual nuclear disarmament. • Access to nuclear technology: Nuclear weapons states agree to provide non-nuclear weapons states the benefits of nuclear technology.

6 “Non-Proliferation Treaty ‘Cornerstone’ of Global Security But Conference Must Narrow Gap Between Performance, Promise, Says Secretary-General”, SG/SM/9847-DC/2956, United Nations, May 2, 2005. 7 Weiss, Leonard. “Nuclear-Weapon States and the Grand Bargain”, Arms Control Today, December 1, 2003, . 8 “The Nuclear Nonproliferation Treaty at a Glance”, Arms Control Association, undated, .

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These key components are often regarded as the NPT “Grand Bargain” - Non-nuclear weapons states promise not to develop nuclear weapons, and in exchange, declared nuclear weapons states provide the benefits of nuclear technology to non-nuclear weapons states and commit to nuclear disarmament.9

The key provisions of the NPT are:10 • Article I, the nuclear weapon states undertake not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices, and not to assist encourage or induce any non-nuclear-weapon state to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices. • Article II, each non-nuclear-weapon state pledges not to receive, manufacture, or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive assistance in their manufacture. • Article III obliges each non-nuclear-weapon state to accept comprehensive international safeguards through agreements negotiated with the International Atomic Energy Agency (IAEA). The intent of these safeguards is to deter and detect the diversion of nuclear material for nuclear explosive purposes. • Article IV, parties may engage in peaceful nuclear programs in a manner consistent with Articles I and II and are expected to assist the nuclear programs of other parties, with special attention to the needs of developing countries. • Article VI obligates all parties to pursue good-faith negotiations on effective measures relating to ending the nuclear arms race at an early date, to nuclear disarmament, and to achieving a treaty on general and complete disarmament under strict and effective international control. • Article VII recognizes the right of any group of states to conclude regional treaties ensuring the total absence of nuclear weapons in their respective territories.

9 Keks, Michael. “Nuclear Weapons, Global Disarmament and the 'Grand Bargain': The Nuclear Non-Proliferation Treaty into the Twenty-First Century”, Ethos, 19 Issue 1, 2011, p. 25. 10 “The Treaty on the Non-Proliferation of Nuclear Weapons”, United Nations, July 1, 1968, .

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• Finally, Article X contains the right of states parties to withdraw from the NPT provided that a three month withdraw notice is given and conditioned on the need to specify the “Extraordinary events, related to the subject matter of this Treaty, [which] have jeopardized the supreme interests of its country.”

4.1.2 The Endurance of a “Fragile” Agreement

Despite lack of formal enforcement mechanism outside of referral to the United Nations Security Council, the NPT has endured and is widely thought successful. This is true for a number of reasons. First, the NPT establishes a core norm against nuclear weapons use.11 Use is unacceptable in international politics and the most fundamental way to guard against use is to move toward a world where nuclear weapons no longer exist, in other words, disarmament. Second, through the IAEA and safeguards agreement, the NPT also provides a measure of reassurance that technology and resources (including nuclear materials) dedicated for nuclear energy programs will not be diverted to a nuclear weapons program.12 Third, the NPT signals to all non-nuclear weapons states that nuclear power is a legitimate economic development tool and that using peaceful nuclear technology, is a right established under the treaty.13 Finally, the NPT establishes a norm and legal basis for broader regime of reinforcing agreements. These include treaties that prevent atmospheric and/or underground testing, the establishment of nuclear weapons free zones for Southeast Asia, Southern Pacific, Africa, and Latin America, and serve as the basis to strengthen export control guidelines and establish mechanisms for governing access

11 Biswas, Arka. “Iran Deal, NPT and the Norms of Nuclear Non-Proliferation: The Iran deal has serious implications for the nuclear non-proliferation architecture,” The Diplomat, February 18, 2016. 12 “Safeguards Legal Framework”, IAEA, July 16, 2015, < https://www.iaea.org/topics/safeguards-legal- framework>. 13 ElBaradei, Mohamed. “Peaceful Uses of Nuclear Energy: Meeting Societal Needs”, INSAC-2004, United Nations, 2004, < https://www.iaea.org/newscenter/statements/peaceful-uses-nuclear-energy-meeting-societal- needs>.

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to nuclear technology.14 Key agreements of the broader nonproliferation and proliferation control regime are included in the table below15:Key Agreements in Proliferation Control Regimes16 1922 Conference on the Limitation of Armament 1968 Nuclear Non-Proliferation Treaty (NPT) 1969-1972 Strategic Arms Limitation Talks (SALT I) 1972 Biological and Toxic Weapons Convention (BTWC) 1972 Anti-Ballistic Missile Treaty (ABM) 1972-1986 Strategic Arms Limitation Talks (SALT II) 1987 Intermediate Range Nuclear Forces Treaty (INF) 1991 Strategic Arms Reduction Treaty (START I) 1993 Strategic Arms Reduction Treaty (START II) 1993 Chemical Weapons Convention (CWC) 1996 Comprehensive Nuclear Test Ban Treaty (CTBT) 2002 Strategic Offensive Reductions Treaty (SORT) 2004 United Nations Security Council Resolution 1540 Proposed Fissile Material Cutoff Treaty (FMCT)

14 Nuclear weapons free zones are defined as “any zone recognized as such by the General Assembly of the United Nations, which any group of States, in the free exercises of their sovereignty, has established by virtue of a treaty or convention whereby: (a) The statute of total absence of nuclear weapons to which the zone shall be subject, including the procedure for the delimitation of the zone, is defined; (b) An international system of verification and control is established to guarantee compliance with the obligations deriving from that statute.” “General Assembly resolution 3472 B (1975)”, Nuclear-Weapon-Free Zones”, United Nations Office for Disarmament Affairs, undated, .

15 See, Nikitin, Mary Beth, Paul K. Kerr and Steven A. Hildreth. Proliferation Control Regimes: Background and Status, Congressional Research Service, 7-5700, RL31559, October 25, 2012.

16 For identification of proliferation control regimes, see, Squassoni, Sharon A., Steven R. Bowman and Carl E. Behrens, Proliferation Control Regimes: Background and Status, Novinka Books, 2002, pp. 3-4.

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Table 3: Key Agreements in the Nonproliferation Regime17 4.1.3 Challenges to NPT Regime

By the beginning of the Bush administration, there were a number of nuclear aspirants including Iran, Iraq and North Korea that, while members of the NPT, were using the right to acquire peaceful nuclear technology as a mask for developing a nuclear weapons program.18 This gave rise to a number of calls for strengthening the NPT since many asked, “What was the punishment for cheating?”19 Additional changes were also evident such as the fact that the NPT was designed for a bi-polar world driven by cold war rivalries that no longer existed. The NPT also assumed that the key, if not only actors, in engaging in WMD proliferation and preventing it would be states. Indeed, in the Brookings Institutes ranking of proliferation threats to United States national security in 2001, only states are listed.20 The NPT was negotiated at a time where state-based decisions led to state-driven treaty. The NPT struggled to account for globalization and the rise of open borders, open technologies, and open infrastructures that empower non-state actors.21 Indeed, it could be argued that the cadre of nonproliferation professionals ignored the changing landscape. While corporations benefited from economies of scale, new technologies and new markets in the emerging global marketplace, those with less market driven objects like terrorist organizations were likewise empowered.

4.1.4 Internal Challenges to the NPT

17 Treaty on the Non-Proliferation of Nuclear Weapons, International Atomic Energy Agency, INFCIRC/140, April 22, 1970. 18 Cirincione, Joseph. “Enforcing Compliance with the Non-Proliferation Treaty”, Carnegie Endowment for International Peace, March 24, 2005. 19 Ibid. 20 Graham, Thomas W. “Weapons of Mass Destruction: Does Globalization Mean Proliferation?” Brookings, September 1, 2001, . 21 Ibid.

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Within the NPT, some state actors changed their understanding of NPT obligations and their role in the treaty. Iran and North Korea, for example, posed an internal challenge to the NPT through insistence on nuclear technology and development for peaceful purposes while diverting nuclear assets for strategic purposes. This provided a road map for other states interested in hedging their possible need for a nuclear weapon in the future while pursuing legitimate peaceful nuclear technology today.22

By treaty, non-nuclear-weapon states are required to accept safeguards that detect diversions from peaceful activities, such as power generation, to the production of nuclear weapons or other nuclear explosive devices and this is done in accordance with an individual state agreement with the IAEA safeguards agreement. These agreements are negotiated between each non-nuclear-weapon State Party and representatives of the International Atomic Energy Agency. These agreements and require that all nuclear materials be declared to the IAEA and that nuclear facilities be open and subject to periodic monitoring and inspections. If there are questions concerning the information received from monitoring and/or inspections, or if there is a suspicion that declarations are incomplete, misleading or fraudulent, the IAEA may request enhanced special inspections to clear up any ambiguities.23

The actions of Iran and North Korea created a crisis of confidence in the NPT during the first term of the Bush administration. Effective April 10, 2003, North Korea withdrew from the NPT, threw out IAEA monitors, and reconstituting its nuclear weapons development program. At the same time, the United States was convinced that Iran was providing false and misleading statements to the IAEA and was building undeclared nuclear facilities covertly to develop a nuclear weapons program.24 The IAEA Board of Governors subsequently adopted a resolution

22 Cimbala, Stephen J. The New Nuclear Disorder: Challenges to Deterrence and Strategy, Routledge, 2016, pp. 143-146. 23 Zarimpas, Nicholas (ed.). Transparency in Nuclear Warheads and Materials, Stockholm International Peace Research Institute, Oxford University Press, 2016, pp. 143-149. 24 Fry, James D. Legal Resolution of Nuclear Non-Proliferation Disputes, Cambridge University Press, 2013, pp. 149-156.

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on September 24, 2005, finding Iran in “non-compliance” with its agency safeguards agreement. The resolution set the stage for the board to refer the Iranian nuclear issue to the United Nations Security Council but did not specify when or under what circumstances such a referral would take place.25 This did set the stage for a number of referrals to the United Nations Security Council that led to United Nations Security Council resolutions 1737, 1747 and 1929, among others. However, though United Nations and individual state sanctions were imposed and there was condemnation by the international community, there seemed to be little impact on Iran’s drive to acquire a nuclear weapon during Bush’s first term.26

The debate over nuclear weapons states’ disarmament was also a major internal challenge to the effectiveness of the NPT. Beginning in the mid-1990s, many non-nuclear states and especially those of the Non Aligned Movement, began to express frustration at the apparent nuclear weapons states’ complete disregard for their NPT disarmament commitments. 27 Following the Cold War, many non-nuclear weapons states felt that there was a strong incentive to disarm the nuclear stockpiles. However, the five nuclear weapons states showed no movement in reducing let alone engaging in a serious discussion on nuclear disarmament. During the Bush administration, the failure of the NPT review conference to agree on an agenda in 2005 stemmed in large measure from the non- nuclear weapons states pushing disarmament commitments.28 Countries such as the United States preferred to focus on preventing WMD terrorism and enhancing procedures to stem illicit WMD trafficking. The non-nuclear powers, led by countries such as Egypt, aggressively sought to put the issue of disarmament squarely on the agenda, seeking assurances and timeframes for the nuclear powers to disarm. The inability to resolve these differences ended the NPT review conference without an agreement on an agenda and the underlying argument over the role of disarmament and combating

25 Kerr, Paul. “IAEA Cites Iran on Safeguards Failures”, Arms Control Today, October 2005, . 26 In general, see, Rubin, Michael. “Was Bush to blame for Iran’s nuclear expansion?”, AEI, July 20, 2015, . 27 Statement on the Non Aligned Movement foreshadowing the NAM’s critique of PSI as unilateral and illegal. 28 Goldblat, Jozef. Ban on Nuclear Weapons Proliferation in light of International Law”, in Lodgaard, Sverre and Bremer Maerli (eds.). Nuclear Proliferation and International Security, Routledge Global Security Studies, 2007, pp. 47-49.

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terrorism continued well past the Bush administration.29 Several other internal challenges to the NPT existed at this time including disputes about compliance, concern over new limits on peaceful use, and the lack of political will to confront new challenges and apparent violations of NPT obligations.

Combined, these internal challenges coupled with external challenges to the NPT had an important impact on the Bush national security leadership. They leaned toward a more operational and capabilities driven approach to proliferation prevention and where nonproliferation was concerned, sought proactive and assertive strategies where possible. Many thus turned to developing a more counterproliferation focused strategy and designing and building the needed capabilities to support such a strategy.30

4.2 Counterproliferation

Whereas nonproliferation seeks to prevent acquisition of WMD and arms control to limit the numbers and capabilities of WMD programs, counterproliferation focuses on preventing use. Counterproliferation encompasses the full range of military preparations and activities to reduce, and protect against, the threat posed by NBC weapons and delivery means. While nonproliferation and arms control can be traced back to the early days of the Cold War, counterproliferation arose during the early 1990’s following the collapse of the Cold War. There was recognition, particularly in the United States, that nonproliferation was geared to Cold War adversaries and objectives did not fully appreciate the growing concern over rogue and non-state actors.

29 Mukhatzhanova, Gaukhar and William Potter. Nuclear Politics and the Non-Aligned Movement, IISS, February 15, 2012, pp. 17-29. 30 . McDonough, David S. “The "New Triad" of the Bush administration: Counterproliferation and Escalation Dominance in US Nuclear Strategy”, International Journal, JSTR, Vol. 59, No. 3, Summer, 2004, pp. 613-634.

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In 1993, US Secretary of State Les Aspin instituted the Defense Counterproliferation Initiative to develop new military capabilities to deal with this new threat.31 Critical to this initiative was the recognition that key tools of proliferation prevention could fail in the new post- Cold War environment. With the number of potential actors with an interest in acquiring WMD increasing in the early 1990s, it was unclear if the current framework was elastic enough to cover these arising threats. If the proliferation prevention framework failed and an actor, such as a terrorist was not deterred from WMD use, then what was “plan B?” The assumption became that “surprise was likely” and that if all eventualities could not be anticipated, options for acting quickly and globally were needed.32

Counterproliferation sought to develop new strategies, tactics and tools to provide options if the proliferation prevention framework failed.33 The ability to have the plans and capabilities ready to interdict WMD as it moved towards the homeland or ally was central to the effort. Not only did the United States need to develop counterproliferation capabilities, but partners and allies as well would need to develop strategies, plans and doctrine to fully militate against the threat. Counterproliferation developed into a key objective for the NATO alliance and by the time the Bush administration came to Washington, was a well-developed concept that included counterforce and offensive operations, passive defense, active defense and consequence management.34

31 See, Schneider, Barry S. Future War and Counterproliferation: US Military Responses to NBC Proliferation Threats, Praeger, 1999, pp. 46-52. 32 “The Bush administration's Doctrine of Preemption (and Prevention): When, How, Where?”, Council on Foreign Relations, February 1, 2004. 33 The term “counterproliferation” was coined by Larry Seaquist, an original member of the concept team that outlined the objectives of the Defense Counterproliferation Initiative. While CAPT(R) Seaquist was a colleague of the author’s, the terms origin is detailed in Zilinskas Raymond A. Biological Warfare: Modern Offense and Defense, Lynne Ryenner Publishers, 2000, p. 205 at footnote 1. 34 Love, Richard A. and Bruce Bennet, “Initiatives and Challenges in Consequence Management after a WMD Attack,” Counterproliferation Papers, Future Warfare Series, No. 26, Air University, August 2004. See also, USSTRATCOM and USSOCOM, “Counterproliferation Operational Architecture,” Department of Defense Joint Staff, April 26, 2002, p. 5.

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Counterproliferation was received skeptically by many in the US government, particularly those in the traditional arms control community. The military services likewise objected to what would clearly be an expensive distraction from more traditional missions.35 4.3 The Bush administration’s Proliferation Prevention Agenda

The Bush administration took over the White House firmly committed to proliferation prevention. According to Robert G. Joseph, then Under Secretary for Arms Control and International Security:

I believe that the Bush administration has done more than any previous administration to develop a comprehensive approach to counter the full range of WMD threats. Through presidential speeches and the publication of formal strategy documents, we have laid out a clear road map for action. This was important for two reasons: first, because of the importance of gaining wide support both within the executive and congressional branches, as well as from the broader national security community; and second, because of our confidence in the power of ideas, and the need for new ideas to transform our thinking about the threats that face our nation. Just one example early in the administration was the transformation of the decades-old debate surrounding the (Anti- Ballistic Missile) ABM Treaty, which I believe we won both on an intellectual basis and in diplomatic practice.36

While continuing many of the Clinton administration’s policies, the Bush national security team placed a greater emphasis on the rogue state problem. However, the underlying national security themes for the Bush administration were quite consistent with prior

35 For a good article discussing the military Services’ objections to reform and new missions in general, see, Pine, Art. “Military Chiefs Open Drive to Force Armed Services to Cooperate More: Pentagon: Increased pooling of weapons and other resources is the goal, Fierce turf battles among Army, Navy and Air Force are expected to result”, LA Times, May 17, 1994, . 36 Joseph, Robert G. “Applying the Bush administration's Strategy to Combat Weapons of Mass Destruction to Today's Challenges”, Remarks to the Fletcher School Conference on the Proliferation of Weapons of Mass Destruction, US State Department, October 21, 2005, .

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administrations and echoed the long-standing United States commitment to preventing the further spread of nuclear, chemical, or biological weapons.37

From the perspective of the US military, proliferation prevention policies were viewed as essential to contain the military threat. The benefits were clear. Proliferation prevention could reduce the number of potentially hostile countries that had acquired WMD. By developing measures that either prevented or slowed the ability of states to acquire needed WMD technology, proliferation prevention limited potential proliferator’s ability to build large stockpiles of nuclear, and, to a lesser degree, chemical or biological weapons. In addition, effective proliferation prevention activities would mean that covert and illegal programs would be exposed and measures taken, such as referring a state to the United Nations Security Council for action.38 Constraints on openly developing and deploying WMD resulting from proliferation prevention measures would result in a less effective adversary from the military perspective. Covert programs and forces are less likely to be tested, evaluated and exercised as robustly as ordinarily trained combat soldiers. Similarly, they would require special training, which drives up costs and intelligence denial strategies.39

Perhaps the best way to describe the Bush administration’s mindset at the time is to characterize it this way: traditional proliferation prevention activities relying heavily on nonproliferation strategies, though necessary, were not sufficient.40 Some hostile countries already possessed WMD and others were seeking those weapons. For still others, traditional prevention measures offered little reason to discontinue developing WMD weaponry. As such,

37 Ibid. 38 As an example, see, Security Council Decides All States Shall Act to Prevent Proliferation of Mass Destruction Weapons, United Nations, SC/8076, April 28, 2004. 39 Foran, Virinia and Leonard Spector. “The Application of Incentives to Nuclear Proliferation”, in Cortright, David (ed.). The Price of Peace: Incentives and International Conflict Prevention, Rowman and Littlefield, 1997, pp. 30- 31. 40 Allison, Graham T., Richard Falkenrath and Steve Miller. Avoiding Nuclear Anarchy: Containing the Threat of Loose Russian Nuclear Weapons and Fissile Material, CSIA Studies in International Affairs, No. 12, MIT Press, 3rd printing, 1999, pp. 8-17.

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the Bush White House from the outset was willing to consider more active steps to disrupt proliferation activities. Additionally, enhanced defenses and protective capabilities were needed not only to augment the United States’ ability to deal with new threats but also would have a deterrence value that could dissuade some countries from seeking these weapons since they would no longer expect to gain politically or militarily. In other words, a deterrence by denial strategy whereby adversaries would be denied the benefits of the costly programs they were pursuing even if they were successful in acquiring them, emerged as the central theme of the Bush administrations’ leadership.41

The relationship between nonproliferation and counterproliferation was important for the Bush administration and this is highlighted in the United States’ National Strategy to Combat Weapons of Mass Destruction.42 Both efforts were important and they were seen as mutually reinforcing. Nonproliferation and to a lesser extent Arms Control reduced the threat while counterproliferation supported proliferation prevention by serving notice that WMD threats or aggression will not succeed.

41 Knopf, Jeffrey W. “Wrestling with Deterrence: Bush administration Strategy After 9/11”, Contemporary Security Policy, Volume 29, Issue 2, September 10, 2008, pp. 229-265, . 42 National Strategy to Combat Weapons of Mass Destruction, The White House, December 2002.

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Counterproliferation would block the transfer of WMD or key components among states or non-state actors by developing more robust interdiction capabilities and plans needed to use this tool. However, there were added benefits beyond the mere operational ability to stop a transfer. Since counterproliferation activities are more operational in nature than nonproliferation or arms control, counterproliferation efforts would be reflexive and would rely on intelligence accuracy to a greater extent. The ability to dedicate greater resources to investigate WMD shipping and transfer routes over time would uncover the networks that made proliferation possible. This would include engaging private actors to uncover illicit transfers, financing and management beyond state control. Additionally, uncovering and where justified publicly revealing illegal proliferation activities would generate political and diplomatic leverage regardless of whether or not a specific transfer was prevented.43 Finally, one of the key thrusts of the Bush administration was to “follow the money.” This desire to attack global proliferation finance was linked to both nonproliferation and counterproliferation activities and was given great emphasis after September 11, 2001.44

4.4 The Bush administration and A National Strategy to Combat WMD

4.4.1 Assumptions

As the Bush administration recognized that WMD proliferation was an urgent threat, it set about developing a strategy to combat it. While nonproliferation and counterproliferation strategies, plans and capabilities existed, WMD in the hands of rogue states and terrorist generated a greater need to develop a grand strategy to set national objective, align programs and provide parameters for programs going forward. In developing this strategy, a few underlying assumptions became apparent. First and foremost was the tenet that weapons of mass destruction constituted a clear

43 Shamai, Patricia. “Name and Shame: Unravelling the Stigmatization of Weapons of Mass Destruction”, Contemporary Security Policy, 36(1), February 2015. 44 “Security Council Statement Reaffirms Concern over Weapons of Mass Destruction as It Marks 10 Years since Adopting Landmark Non-proliferation Text”, United Nations, SC/11382, May 7, 2014.

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and present danger to US security.45 For the Bush security leadership, it was clear that the United States was faced with a post-proliferated world – proliferation occurred and needed to be recognized for what it was.46 In addition, that capabilities have and would continue to spread and “putting the genie back in the bottle” was not an option. For many of the Bush administration’s security advisors, the political rhetoric of the time and even declaratory policy within the same administration did not recognize or understand what a “post proliferated world” implied.47 New and clear direction needed to be provided in an overarching policy directive where not only a change in diplomatic tone was required but a new sense of urgency that recognized the high stakes involved was needed. The second assumption was that critical gaps in the proliferation prevention framework existed now and were evident. This, as demonstrated by 9/11’s unconventional means and at the time unattributed Anthrax attacks meant that surprise was likely. In other words, even assuming a comprehensive overhaul in policy and capabilities, surprise was not only a possibility, but likely. Surprise on the WMD front likewise was now considered not only possible, but for planning purposes, also probable. If you could not rule out WMD terrorist use, then it must be planned for.48 The third assumption was that the intent to harm was clear, whether by terrorists or other states such as Iraq and Iran. To confront this looming and probable threat, the fourth assumption was that in order to be effective, “Nothing off the table.” Areas once deemed limited to secret diplomacy and covert operations were now more than part of official rhetoric but policy. For example, preemption and anticipatory self- defense to prevent WMD attack and the full suite of United States tools to combat WMD became the guideposts for programs and plans development and defense acquisition. This constituted a

45 Ellis, Jason D. and Geoffrey D. Kiefer. Combating Proliferation: Strategic Intelligence and Security Policy, Johns Hopkins University Press, 2004. 46 Ellis, Jason D. “The Best Defense: Counterproliferation and U.S. National Security”, The Washington Quarterly, 26:2, p. 119. 47 Ibid, pp. 119-122. 48 “The Department of Defense shall: have a strategy for combating WMD that supports the National Strategy to Combat WMD (Reference (c)) and related national strategic guidance; have the supporting military force planning and doctrine to organize, train, exercise, and equip U.S. Armed Forces to combat WMD; and prepare appropriate plans to address the defense related aspects of combating WMD.” “Department of Defense (DoD) Combating Weapons of Mass Destruction (WMD) Policy, US Department of Defense Directive 2060.02, Office of the Secretary of Defense, April 19, 2007.

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big shift not only in how to craft a national security strategy but also in how the United States viewed the WMD threat and what was to be done to meet the threat. The fifth assumption was that WMD in the hands of terrorists was a “game changer.”49 National security posture, from dealing with allies, partners and adversaries needed to be re-evaluated and every lever and tool to prevent WMD in the hands of terrorist available in any domain would be used. The way the United States understood threats to the homeland and how it organized to meet those threats was completely re-written.

4.4.2 The 2002 National Strategy to Combat Weapons of Mass Destruction

The result from the five WMD security and proliferation-related assumptions was the development of a new National Security Strategy and a new national strategy specifically designed to combat weapons of mass destruction. The primary fear during the cold war was that through misadventure, miscalculation or just bad luck, the strategic rivals of the United States and Soviet Union would either stumble into nuclear use, seek strategic advantage through use or use WMD to gain advantages through proxies or other subordinates.50 Use was envisioned in terms of megatons that would prompt a quick response and likely lead to instant escalation and massive retaliation. This mentality did not subside after the liberation in Eastern Europe in 1989 and the fall of the Soviet Union in 1991. It continued through the 1990s and assumed that the strategic rivals, United States, Russian and perhaps China, were the key if not sole actors in setting the proliferation prevention agenda.51 They were also the arbiters and enforcers for those states who upset the bounds of the strategic balance; Iraq’s invasion of Kuwait, for example. The strategic rivals, therefore, could contain their own strategic ambitions similar to classic

49 To understand the scope of concern for the United States and its allies presented by the terrorist threat, including the WMD threat, see, Paquin, Jonathan and Patrick James (eds.). Game Changer: The Impact of 9/11 on North American Security, UBC Press, 2014. 50 Lubkemeier, Ekhard, “Current NATO Strategy and No First Use: What can they Accomplish?”, in Hopmann, P. Terrence and Frank Barnaby (eds.). Rethinking the Nuclear Weapons Dilemma in Europe, MacMillan Press, 1988, pp. 115-123. 51 Stephenson, Scott. “The Revolution in Military Affairs: 12 Observations from an Out-of-Date Idea”, Military Review, May-June 2010.

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deterrence strategy during the Cold War and lesser strategic threats to the global peace could be handled by the rivals alone or together through the United Nations Security Council. The Bush administration’s early focus on rogue states and the need to hold them accountable recognized the bi-polar strategic dominance of the cold war rivals.52 It did not, however, recognize that the primacy of sovereignty had been replaced by a world comprised of large areas of ungoverned or ungovernable space. The Bush administration’s initial response – even after 9/11 – was that every bad autocrat remained a state and that state would be held to account. In the same vein, every terrorist lived somewhere and every terrorist training ground was located in some state and that state would be held accountable for bad behavior arising from that territory. Prior to 9/11, this was an even greater principle of foreign policy: for the Bush administration of 2000, not only did states matter, but in the post-cold war environment where the actions of rogue states could not necessarily be explained or controlled by Cold War Bloc politics, states were the only thing that mattered. WMD issues were viewed as critically important, but somewhat less so than during the Cold War. Nuclear stockpiles were still at Cold War levels, though their delivery systems through the Strategic Arms Reduction Talks (START) were being reduced. The risk of a large nuclear exchange with Russia seemed quite remote. There were other strategic-related concerns, however, such as the 1998 testing of five nuclear weapons by India followed quickly with six tests by Pakistan that caught the US intelligence community completely by surprise.53 There remained the continued provocations by North Korea and their on-again/off-again promises with regard to their nuclear program. But for the most part, regional rivalries between India and Pakistan, Iraq and its neighbors, Iran and Israel drove the new security agenda, with the United States playing a greater role in many of these issues as Russia receded. The United States was the lone superpower, would benefit from the “peace dividend” and would weigh in on world matters when strategic interests warranted.54 Terrorism remained a concern but not to the strategic or existential level of the threat nuclear adversaries posed. Hamas and Hezbollah were

52 Enold Scott A. “Rogue States and Deterrence Strategy”, US Army War College, April 2, 2009. 53 As to why Pakistan tested six, it was probably to account for the 1974 underground “Smiling Buddha” test conducted by India. The resulting tally meant that total test number would give India six and Pakistan six. 54 Walker, Bruce. “Who Spent the Peace Dividend?”, American Thinker, June 7, 2011, .

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active and the al Qaeda attacks on the World Trade Center in 1993, the US embassies in Dar es Salaam, Tanzania and Nairobi, Kenya in 1998, and the attack on the USS Cole in 2000 demonstrated a new reach and lethality of global terror, but after all, those terrorist operated from bases located in states and those states would be held accountable.

Eight months later, that mindset was gone. The national security leadership in the Bush White House failed to account for the possibility that friendly and allied states might produce the undesired actors. Attacking Afghanistan for the al Qaeda attacks was consistent with the original strategy. Nevertheless, the reality of combating a global terrorist network linked to key allies such as Egypt and Saudi Arabia proved a political quagmire. The hope, of course, was that states as sovereigns would be accountable for such terrorist’s acts but politically, Egypt and Saudi Arabia were staunch Middle East allies and in no way resembled the Taliban-led regime in Afghanistan. Something new would be needed to conduct terrorism where it existed and it existed everywhere. A concept started to gel.55 What was needed was a “global war on terror.”56

The result was a new US National Security Strategy released in September 2002 followed by the US National Strategy to Combat Weapons of Mass Destruction released in December 2002. The National Strategy to Combat Weapons of Mass Destruction establishes three pillars of combating WMD strategy: nonproliferation, counterproliferation, and consequence management.

The nonproliferation enterprise had long been the “go to” political, legal, and diplomatic framework aimed at establishing norms against WMD acquisition, reducing incentives to proliferate, and restricting access to critical technologies. This was a tried and true process and included: well established international treaties and supporting institutions (e.g., NPT and

55 Record, Jeffrey. “Bounding the Global War on Terrorism”, Strategic Studies Institute, US Army War College, December 2003. 56 For a critique of the war on terrorism, see, Zalman, Amy and Jonathan Clarke. “The Global War on Terror: A Narrative in Need of a Rewrite”, Ethics & International Affairs, Volume 23.2, June 24, 2009.

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IAEA); technology control agreements (e.g., Nuclear Suppliers Group, Missile Technology Control Regime); state enacted export control laws sometimes consistent with obligations under international convention law; weapons free-zones (e.g., nuclear weapons free zones in Latin America and Africa); security guarantees (e.g., Negative Security Assurances, provided by the legally recognized nuclear powers); alliance structures (e.g., NATO and the United States extended nuclear deterrent); threat reduction assistance (e.g., Cooperative Threat Reduction program with Russia); a wide range of bi- and multilateral cooperative initiatives (both United States, Russian and regionally led).57 These institutions and arrangements were understood, had a cadre of experts and organizations to support them and favored diplomacy, cooperation and agreement.

Counterproliferation, on the other hand, in concept and policy rapidly developed as a tool to provide new types of responses to the WMD threat. Counterproliferation at its core is to confront WMD on the battlefield with the need to either deter WMD use and/or defeat such weapons if used.58 For the United States, the aperture of counterproliferation was widened to include a wide range of military and other capabilities that were pursued to prevent WMD use. Counterproliferation became somewhat of a catch-all concept and included just about anything not in the traditional nonproliferation realm. To a large degree, counterproliferation programs became suspect and came under scrutiny for their objectives, goals and motives. Counterproliferation included improved passive defenses, missile defenses, and offensive capabilities to neutralize WMD before they could be used.59 Counterproliferation also now

57 Forsberg, Randall. Nonproliferation Primer: Preventing the Spread of Nuclear, Chemical, and Biological Weapons, MIT Press, 1999. 58 “Counterproliferation involves efforts to combat the spread or growth of weapons—conventional weapons, weapons of mass destruction, and related technology—that threaten the United States.” Definition Counterproliferation, FBI Counterproliferation Center, undated, . 59 Other countries may use “counterproliferation” differently. In the United Kingdom, this terms refers to all efforts to address the WMD problem, including those traditionally referred to as nonproliferation. In the United States, the term “Combating WMD” has emerged as the overarching strategic and defense planning construct for all activities directed at managing the proliferation problem.

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included cooperation with security partners to improve indigenous capabilities and prepare for possible contingencies involving WMD-armed adversaries.

Recognizing that surprise was likely, a new concept was promoted to one of the three pillars of the national strategy. Consequence management emphasized the need to respond effectively to WMD event(s) at home or abroad, both to limit damage and to demonstrate resilience to adversaries. Consequence management measures sought to mitigate WMD effects, protect public health and safety, provide emergency relief, restore essential government and civilian services, and reconstitute military capabilities as needed.60 In the United States, the vision for emergency preparedness and response emphasizes an “all-hazards” national response framework to deal with any type of event, integrating all federal, state and local response organizations and capabilities.

Within the United States various other strategies, decisions, directives and other guidance and policy was promulgated to support the national strategies; not surprisingly, their interpretation and implementation varied widely. However, even with these new strategies and policies, there was a recognition that this was still not enough. Some threats required a measure of diplomacy and operational capabilities. This was the challenged posed by interdicting WMD transfers. Diplomacy was needed to engage allies, strengthen domestic and agree upon the meaning of international law. Capabilities were needed to actually conduct an interdiction – work with militaries to stop a ship, truck, plane or other vessel, investigate its cargo, identify WMD or WMD components and get it out of the stream of commerce and safely secure it and render it safe. A WMD interdiction was not the only domain where diplomacy and operational capability were needed in tandem. From counter terrorism to human trafficking to counterfeiting to banking, new diplomatic efforts were needed and operational tools required to counter these threats.

60 Bennett, Bruce and Richard Love, “Consequence Management” in Schneider, Barry and Jim Davis (eds.). Avoiding the Abyss: Progress, Shortfalls and the Way Ahead in Combating the WMD Threat, Preager Security International, 2009, pp. 175-193.

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Chapter 5: The Origins of PSI

With all of the threats facing the United States and a relatively new Bush administration following 9/11 seeking to punish al Qaeda, why was high-seas interdiction of WMD one of the first items to be given high priority by the White House national security team? The answer is simple; a single event and its subsequent failure led to a reevaluation of not just US posture and policy for proliferation prevention but global capacity to counter the proliferation threat. For the administration, this meant understanding and evaluating the nonproliferation and counterproliferation divide and facing a hard reality that the current threat was misunderstood, diplomatic tools overstated and operational capabilities lacking common purpose and cohesion.

5.1 The Case of the M/V So San

The event in question begins when the Merchant Vessel M/V So San left Nampo Harbor, North Korea in 2002.1 Intelligence suggested that there were possible Weapons of Mass Destruction (WMD) delivery systems on-board, specifically SCUD missiles and possibly associated rocket fuel. The So San was tracked as it entered the Indian Ocean.2 During this time, the flag of the ship was in question since the So San began by flying a North Korean flag and then no flag and there are suggestions it may also have flown a false flag. On 9 December 2002, at the request of the United States, the Spanish frigate Navarra intercepted the So San and boarded her on the high seas.3 Upon inspection, beyond the declared cargo of cement, US naval forces cooperating with Spanish naval forces discovered undeclared SCUD ballistic missiles,

1 Winner, Andrew. “The Proliferation Security Initiative: The New Face of Interdiction”, The Washington Quarterly, Spring 2005, p. 131. 2 Regarding intelligence, Ian Williams at Arms Control Now concluded that “…the interdiction of the So San did not fail because of a failure of intelligence sharing or military cooperation, but rather because of a lack of legal authority to seize the missiles. Ian Williams, “The Proliferation Security Initiative: Ten Years On” Arms Control Now, 2013, . 3 “The So San Incident”, Goorangai, Occasional Papers of the Royal Australian Naval Reserve Professional Studies Program, Volume 3, Number 1 November 2007, p. 1.

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missile parts and rocket fuel. Intelligence also indicated that the final destination was a Middle Eastern state and as such, may constitute a violation of United Nations Security Council resolutions.4 Consider the importance of this interdiction. First, intelligence assets correctly tip off officials of a suspect cargo. Second, the cargo is tracked to a specific ship in a specific harbor. Third, the ship is tracked as it leaves Nampo and travels to the Indian Ocean. Fourth, information and it is presumed intelligence is shared with the Spanish government. Fifth, the Spanish government agrees to cooperate with the United States in stopping the ship. Working together, a Spanish frigate working with US forces stops the ship, conducts a search and finds exactly what they are looking for. So what was the problem? The government of Yemen declared that the missile shipment was the product of a legitimate transaction in accordance with international law and in violation of no United Nations Security Council Resolutions or other international law. It was neither a criminal act for North Korea to send merchandise with WMD components to willing buyers not prohibited by United Nations Security Council Resolution nor was it illegal or even improper for Yemen to import the “suspicious” cargo. The M/V So San proceeded to Yemen where it unloaded its ballistic missile cargo.

The So San case presented a tangible challenge to maritime proliferation prevention in general and the Bush administration’s desires to strengthen proliferation prevention mechanisms. In this case, the intelligence was right, the ship was tracked effectively across the Pacific, through the Straits of Malacca and into the Indian Ocean, the United States was able to work effectively with a close partner to interdict the ship on the high seas, inspectors found exactly what they were looking for but ultimately, the ship and its ballistic missile cargo were allowed to port in Yemen and discharge the missile cargo. As then President George W. Bush reportedly said to his national security team at the National Security Council, “tell me again, why exactly was this a good idea?”

The National Security Council Staff subsequently put together a "tiger team", that is a

4 Winner, Andrew. “The Proliferation Security Initiative: The New Face of Interdiction”, The Washington Quarterly, Spring 2005, p. 132.

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small group of national security experts on WMD proliferation, to review the facts of the So San case and investigate what happened.5 The team uncovered a number of key findings. Among them was that views on the legality of maritime interdiction on the high seas were inconsistent not only across states and other international actors such as the United Nations, but were even inconsistent within the United States, between Departments (the US State Department disagreed with the Department of Defense) and even within Departments (in the Department of Defense, the Joint Staff had differing legal interpretations than the Office of the Secretary of Defense). The team also concluded, perhaps even more strikingly, that few states had criminalized activities such as WMD transiting their domestic waters. For a vast majority of states, trafficking in WMD on, through or over their sovereign territory was not a criminal offense. Additionally, while there were organizations such as the Australia group, the Missile Control Technology Regime (MTCR) and the Wassenaar Arrangement dedicated to restricting access to the key components of a WMD or delivery system, there was nothing that specifically addressed the North Korea problem since they are outside each of these regimes. Furthermore, there was no mandate or sanction from the United Nations to prohibit these transfers or even criminalize there transfer to a non-state actor, such as a terrorist organization There were no nonproliferation efforts in the United Nations or elsewhere to strengthen laws individually or collectively that would prevent such transfers in the future. This was a very significant finding considering the United States and the Bush administration were still coming to grips with the events of September 11th and were in the process of significant structural changes to the government apparatus such as the massive undertaking to organize the Department of Homeland Security6 and in the White House, to create a new Homeland Security Council.7

5 Koch, Susan J. Proliferation Security Initiative: Origins and Evolution, Occasional Paper 9. (National Defense University Press: Washington, DC, 2012), pp. 6-7. 6 The Department of Homeland Security was first recommended by a Commission following the attacks of 9/11 through the “Road Map for National Security: Imperative for Change”, The Phase III Report of the US Commission on National Security/21st Century". www.nssg.gov/phaseIII.pdf. US Government. The Department was created through The Homeland Security Act (HSA) of 2002, (Pub.L. 107–296, 116 Stat. 2135, enacted November 25, 2002) and was signed into law by President George W. Bush in November 2002. 7 The Homeland Security Council (HSC) was created by Executive Order 13228 on October 29, 2001 thereby splitting the national security responsibilities in the White House between the National Security Council which focuses on overseas threats and the Homeland Security Council oriented to domestic threats.

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The review indicated that the status quo was insufficient to meet the current WMD proliferation threat. As such, the team envisioned and recommended a new initiative, a new concept in proliferation prevention in which taking action operationally was encouraged, cooperation and information sharing would be promoted, and states would demonstrate resolve by openly testing interdiction concepts at sea, on land and even in the air domain through exercises. Equally important, the new concept included experts from the legal and operational communities, who would address interdiction concepts and start to get a clearer and common understanding of interdiction, interception and the legal framework for operational proliferation prevention.

In the spring of 2003, a furious effort was underway to refine this concept, to seek international support and to enlist political commitment to these ideas. This effort was spearheaded by the National Security Council and the State Department. The first objective was to identify where the current system failed and the second, to devise options for remediating these shortcomings. Concepts were debated. Should a new international regime be instituted? Should an organization be established in the United Nations with the power of an international treaty and an organization to support its efforts? How long would this take? Who really should have a “seat at the table?” What would the objectives be, who would run it and what would it do? Would there be an executive body such as executive council, would it need a director and if so, how would that person or country be selected? All of these questions created a few central questions for the tiger team: the reliability of a treaty-based regime and organization versus the flexibility of a smaller, nimbler informal association; going through the treaty approval process or something less; universality or like-minded states and leaders; comprehensive and personnel heavy or reactive to specific events; new laws and international frameworks or building on what exists; education and proponency or close-hold and even secret operations; highest-level buy-in or operationally focused operators? These were just a few key considerations facing the team in light of the So San incident.

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5.2 The Krakow Initiative

The result was a remarkable meeting in Krakow, Poland in May 2003 where eleven states8, Poland, the United States, Australia, France, Germany, Italy, Japan, the Netherlands, Portugal, Spain, and the United Kingdom politically committed at the head-of-state level to take more action for proliferation prevention and to work together to develop practical measures to interdict WMD shipments and their delivery systems at sea, in the air or on land. The idea, fundamentally the same as the one recommended by the National Security Council "tiger team" was simple; a group of like-minded states concerned about WMD proliferation would work together and seek to raise the costs to would-be proliferators such as North Korea.9 There was one huge problem however. At the time of the announcement in Krakow, no one had any idea how these eleven states would work together. They had an idea in principle, but there was no agreement on how they would interact, how they would confront challenges such as the threat posed by North Korea and others, and what mechanisms would be used to improve interdiction on land, at sea and in the air.10 In other words, other than a commitment to cooperate and work together, there was no plan on how to do so, there were no specific or tangible objectives on which to build a plan, there was no consensus on organization or structure, and there was not even a common understanding of the threat environment for which PSI was being initiated. But the political commitment had been made at the Presidential level and that alone signaled an important impetus for high-level action.11 Foreign policy is not automatic. This dissertation examines the process from creating PSI principles and the initial endorsement of 11 states, to endorsement by 105 countries and operational guidance for interdiction activities. It would be several months before the idea of developing a common set of ideas, what became the Statement of Interdiction Principles, gained traction as the common set principles underpinning PSI.

8 The organizing eleven states were for some time afterwards often referred to as the "original eleven" diplomatically and in the press.

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The Statement of Interdiction Principles would serve as a guide for states willing to make the political commitment to abide by those principles in the future. However, drafting and agreeing to these principles still had not taken place. The commitment and framework of PSI started to take shape following the Krakow meeting with two informal meetings held in Madrid, Spain on June 12, 200312 and in Brisbane, Australia on July 9-10, 2003.13 The results of these efforts were unveiled in Paris 3-4 September 2003 with the announcement of the PSI's Statement of Interdiction Principles.14 The principles themselves are not overly long and serve as common ground for interdiction.15 They emphasize that PSI is an activity, not an organization (though the principles define neither term), that political commitment to the principles is required to join PSI and there would not be negotiated memberships, that the purpose is for states to act and be proactive. The Statement of Interdiction Principles emphasizes self-policing by states endorsing PSI, especially over ships that are flagged in their states, encourages the practice of flag states to grant permission to other states to conduct searches, and to expand participation in PSI in order to cut the number of available proliferation avenues thus imposing additional costs and risks to proliferators.

9 Koch, Susan J. Proliferation Security Initiative: Origins and Evolution, Occasional Paper 9, National Defense University Press, 2012, pp. 6-7. 10 See generally, John Bolton, Surrender Is Not an Option: Defending America at the United Nations and Abroad, Threshold Editions, 2007. 11 Belcher, Emma. The Proliferation Security Initiative: Lessons for Using Nonbinding Agreements, Council on Foreign Relations, Working Paper, July 2011, p. 11. 12 Proliferation Security Initiative: Chairman's Statement at the First Meeting, Foreign Ministry of Spain, First Meeting of the PSI, June 12, 2003. 13 Proliferation Security Initiative: Chairman's Statement at the Second Meeting, Foreign Ministry of Australia, Second Meeting of the PSI, July 9-10, 2003. 14 Bolton, John R. “Proliferation Security Initiative: Statement of Interdiction Principles”, Under Secretary for Arms Control and International Security Affairs, Remarks at Proliferation Security Initiative Meeting Paris, France, September 4, 2003. 15 Proliferation Security Initiative: Chairman's Statement at the Third Meeting, Foreign Ministry of France, Third Meeting of the PSI, September 3-4, 2003, September 4, 2003.

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5.3 The Paris Meeting

At the Paris meeting, on the 4th of September 2003, the eleven original members “endorsed” those interdiction principles and that is the reason to this day, PSI prefers to refer those states belonging to PSI as PSI “endorsees” rather than PSI members or associates.16 The statement, issued by the Chair of the meeting, reads in relevant part:

PSI participants are committed to the following interdiction principles to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the United Nations Security Council. They call on all states concerned with this threat to international peace and security to join in similarly committing to:

1) Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. 2) Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other states as part of this initiative, dedicate appropriate resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts. 3) Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international laws and frameworks in appropriate ways to support these commitments. 4) Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks, to include:

16 Ibid.

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a. Not to transport or assist in the transport of any such cargoes to or from states or non- state actors of proliferation concern, and not to allow any persons subject to their jurisdiction to do so. b. At their own initiative, or at the request and good cause shown by another state, to take action to board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial seas of any other state, that is reasonably suspected of transporting such cargoes to or from states or non-state actors of proliferation concerns, and to seize such cargoes that are identified. c. To seriously consider providing consent under the appropriate circumstances to the boarding and searching of its own flag vessels by other states, and to the seizure of such WMD-related cargoes in such vessels that may be identified by such states. d. To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) enforce conditions on vessels entering or leaving their ports, internal waters, or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry. e. At their own initiative or upon the request and good cause shown by another state, to i. Require aircraft that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and that are transiting their airspace to land for inspection and seize any such cargoes that are identified; and/or ii. Deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights. iii. If their ports, airfields, or other facilities are used as transshipment points for shipment of such cargoes to or from states or non-state actors of proliferation concern, to inspect vessels, aircraft, or other modes of transport reasonably

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suspected of carrying such cargoes, and to seize such cargoes that are identified.17

5.4 The A.Q. Khan Network

The second event that transformed PSI into the global activity it became today with 105 endorsing states was the uncovering of the A.Q. Khan network. In October 2003, literally a month after the Paris meeting and issuance of the Statement of Interdiction Principles, the German-owned BBC China was interdicted as it traveled in the Mediterranean Sea from Dubai en-route to Libya.18 Intelligence suggested that the ship was carrying WMD-related cargo to Libya in violation of United Nations Security Council Resolution. The United States contacted German and Italian authorities and Germany, a PSI endorsee, instructed the ship's owner to divert to the Italian port of Taranto. Upon inspection in the port, nuclear centrifuge parts were discovered. The United States immediately attributed the success of the interdiction to PSI. At the time, Undersecretary of state John Bolton continued to tout the interdiction as a PSI related success. Bolton said later, on September 28, 2004, “The seizure of that ship and the equipment on it, we think, had a major, perhaps dispositive role in Libya’s decision to give up the pursuit of weapons of mass destruction last year.”19 Bolton and other officials continued to stress that the interdiction of the BBC China led directly to the unraveling of the WMD proliferation network of A.Q. Khan, which was the source of the centrifuge components on the BBC China.20 Bush administration officials explicitly said the interdiction resulted from PSI. On February 26, 2004,

17 “Statement of Interdiction Principles', declaration issued by the Proliferation Security Initiative (PSI)”, The White House, September 4, 2003. 18 Chronology: A.Q. Khan, The New York Times, April 16, 2006, . 19 “Key US Interdiction Initiative Claim Misrepresented”, Arms Control Today, July 1, 2005, . 20 For a description of the Khan network, see, Langewiesche, William. “The Wrath of Khan", The Atlantic, February, 2004, .

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national security adviser Condoleezza Rice stated, “PSI has already proven its worth by stopping a shipment of centrifuge parts bound for Libya last fall.”21

It should be noted that while many Bush administration officials cited this as an example of a successful PSI interdiction, there were other who argued it was part of a separate intelligence operation and thus should not be used as evidence of PSI’s success. Disputing that the BBC China interdiction was a PSI-related activity, Assistant Secretary of State John Wolf told Arms Control Today that the BBC China resulted from a “separate” operation and that the interdiction was part of an intelligence operation against the A.Q. Khan network22 As quoted by Wade Boese in Arms Control Today, John Bolton said on September 28, 2004, “The seizure of that ship (the BBC China) and the equipment on it, we think, had a major, perhaps dispositive role in Libya’s decision to give up the pursuit of weapons of mass destruction last year.”23 According to Boese, “Bolton and other officials further said the interdiction helped lead to the unraveling of the nuclear black market network run by Pakistani scientist Abdul Qadeer Khan, which was the source of the centrifuge components.”24 Regardless, it put PSI on the map and gave it global recognition. The interdiction also demonstrated that: information was being shared among concerned states; a ship of concern was successfully tracked across two oceans; a flag state presented with information of an illicit transfer was able to receive the information, act on it and give consent; the ship was successfully diverted and ported; the WMD components were indeed found and impounded; and, the entirety of action needed for a successful interdiction had been achieved. It also exposed a troubling fact, proliferation was occurring not just among and between states. Private networks with financial motivations - not geopolitics - were in the game now. It became apparent that the parts were being smuggling from Khan

21 Chronology: A.Q. Khan, The New York Times, April 16, 2006, . 22 See, Boese, Wade. “Key U.S. Interdiction Initiative Claim Misrepresented,” Arms Control Association, July 1, 2005, < https://www.armscontrol.org/act/2005_07-08/Interdiction_Misrepresented>.

23 Ibid.

24 Ibid.

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Research Labs in Pakistan by Khan and his non-state agents. A.Q. Khan himself, the head of Khan Research Labs and the scientist hailed as the “father of the Pakistani bomb" ran an unprecedented proliferation operation.25 The scale of the network was unprecedented with global connections, finance and producers and Khan himself traveled regularly and openly to countries such as North Korea, Iran and Libya. Indeed, the current best estimate is that A.Q. Khan's last trip to Pyongyang in June of 2002 was his 13th.26 Additionally, the content was unprecedented dealing with everything from uranium enrichment know-how to equipment to precursors to providing actual nuclear weapons designs. Moreover, how the network used the aspects of globalization was also unprecedented. The same infrastructure that was revolutionizing global commerce and trade, global finance, global communications, and global travel coupled with the explosion in globally available technology allowed Khan to "outsource" when cost effective and hide money transfers and commodity shipments behind a blurring array of front companies, partners, agents, and subcontractors.27 As the A.Q. Khan network started to come into the light, it was clear, there were new actors and players taking advantage of global commerce, global banking, open technologies and open borders.

A.Q. Khan may have been a metallurgist by trade and some would argue a highly effective leader and manager at Khan Research Labs, but he was arguably a brilliant business visionary. He was able to see new markets and capitalize on his unique position at Khan Research Labs that allowed him access to a wide array of nuclear expertise, materials, and equipment and then seek global partners to fulfill the desires of clients. The A.Q. Khan network used front companies in Europe, the Middle East and Asia to pursue its proliferation agenda. For example: meetings were held in Casablanca and Istanbul with Iranian colleagues; the network

25 “The nuclear network of A.Q. Khan: A hero at home, a villain abroad”, The Economist, June 19, 2008. . 26 “A.Q. Khan’s Network”, Global Security.org, under Weapons of Mass Destruction, . See also, “Chronology: A.Q. Khan”, The New York Times, April 16, 2006, . 27 Pai, Nitin. “Nuclear Test Outsourcing: AQ Khan, China and the Truth” The Acorn: On the Indian National Interest, September 3, 2008, .

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used business connections in Germany and Holland to arrange for new contracts; Malaysian and Philippine agents were used to hide the true nature of transactions; shipping would routinely detour through Sri Lanka with false end-user declarations identifying ownership of mislabeled cargo as being owned or transshipped by Chinese or London connections.28 And the Khan network was brazen. Booths and brochures29 - in color mind you - advertising how Khan Research Labs could help a state, or anyone for that matter, acquire a nuclear capability were a regular feature at high-end international arms shows. They advertised on the World Wide Web, they had a marketing department, and the network was both successful and highly profitable for Khan and everyone involved. Therefore, for example, if you lacked the expertise to construct a proper building for, say, centrifuges, Khan could arrange that. If you lacked the proper expertise to put the centrifuges together, Khan could arrange that. If you lacked the nuclear material for the centrifuges, Khan could arrange that. Moreover, if you lacked the proper know-how to reprocess to go from low enriched uranium (LEU) to weapons grade, Khan could arrange that too. Indeed, Khan seems to have prided himself on customer service; why else would he have 24-hour technical assistance on-call and available to handle and question or concern.30

Contrasting the So San case with the BBC China, Libya and A.Q. Khan cases - though the prior three are all inter-linked, does yield an interesting insight. In the So San case, it was believed North Korea was illegally transiting weapons of mass destruction delivery systems to a state in the Middle East in violation of a United Nations Security Council Resolution. When Yemen stepped forward and claimed they were the legitimate end user for the missiles, the transfer, under international law at the time, was merely a commercial transaction to the benefit

28 Fitzpartric, Mark. “Nuclear Black Markets: Pakistan, A. Q. Khan, and the Rise of Proliferation Networks – A Net Assessment”, Strategic Dossier Press, IISS, May 2, 2007. 29 Alec Russell, “Nuclear weapon 'brochure' adds to U.S. dilemma over Musharraf”, The Telegraph, January 5, 2004, . A link to the brochure can be found here: . 30 Twenty-four hour technical assistance reported by the New York Times, “Q&A: Black Market Nuclear Proliferation” as reported from the Council on Foreign Relations, February 12, 2004 .

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of both states and not in violation of any United Nations Security Council resolution.31 The ship was let go and the weapons off-loaded in Yemen.32 In the BBC China case, the authority to intercept, search, divert, and impound the cargo heading for Libya was based on flag state consent. That authority rested with the universally accepted principle that a flag state retains control over its flagged vessels and in no way was predicated on any United Nations action. In this case, the weapons and weapons components were interdicted, pressure was put on Gaddafi to eliminate his state's nuclear program and ultimately, this was what transpired. But as the trail moved from Libya to the A.Q. Khan network, the "authorities" or "legal" questions again, as in the So San case, became very important.33 It quickly became apparent that while there might be moral and political leverage to be gained in having Pakistan tighten its proliferation prevention posture, but it was not as clear if legally and under the laws existing in Pakistan at the time, that anyone had done anything wrong.

As demonstrated by the A.Q Khan case, this new proliferation threat occurred largely outside the proliferation prevention framework in place at the time. The existing conventional international law assumed a world where states were not only the most important actors, but in terms of a nuclear weapons program, they - a state - were solely capable of having the resources necessary to engage in a nuclear program. The negotiators of the Nuclear Nonproliferation Treaty never imagined a world where any other actor other than states would be able to muster the treasure, manpower, materials and capabilities to engage in a nuclear weapons program, much less, be able to market one and sell it abroad. Times changed, globalization was moving at a fast clip, and at a time when the "Asian Tigers" were redefining the global economic balance, Khan Research Labs was attending air shows and arms demonstrations, and on October 9, 2006,

31 Cupitt, Richard T. and Chris Jones. “The Proliferation Security Initiative: An Anti-Institution” in Daniel Joyner, Non-Proliferation Export Controls: Origins, Challenges, and Proposals for Strengthening, Routledge, 2006, pp.197-212. See also, “Yemen protests over Scud seizure”, BBC News, December 11, 2002. 32 Ibid, Cuppitt. 33 Tito Drago, “U.S., Spain caught in Libya missile mix-up,” Asia Times, December 12, 2003.

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North Korea issued an announcement to the world claiming it had successfully conducted a nuclear test.34

The A.Q. Khan network, like the So San case, provides and important lesson since in both cases, the legal questions become central. Were any laws broken? Pakistan did not seem to have any penal laws addressing the selling of nuclear technology abroad. Did Pakistan violate any international conventional or customary law? Pakistan is neither part of the Nuclear Nonproliferation Treaty nor any other international compact that would sanction Khan's behavior. Would Pakistan take action against Khan? Absent a clear legal justification for action, no one at least in the United States seemed sure how Pakistan would react but the "name and shame" approach on the international stage seemed the most likely avenue to change policy, and hopefully the law, in Pakistan. This raised the question of what, exactly, was the A.Q. Khan network and if Pakistan's laws were insufficient, were other actors who were involved in the commoditization of nuclear technologies be held liable for their actions. This was a network, after all, where components were produced in factories in Malaysia, assembled elsewhere, transshipped through the Middle East and ultimately en-route to Libya. The project was financed and paid for through European third parties and though it was certainly a wake-up call to the proliferation prevention world, the legal community struggled to determine if anyone could be held legally accountable.35

The Libya and BBC China case also demonstrated that while there are many benefits to the then globalizing world, the same systems that propelled global economic development facilitated the rise of non-state proliferators such as A.Q. Khan. The key point here is that after BBC China interdiction and the revelation of just how deep and wide the A.Q. Khan network was, it was clear that a new global threat was exposed, the extent to which was not immediately

34 "N. Korea to conduct 'safe' nuclear test", UPI, October 3, 2006. "U.S.: Test Points to N. Korea Nuke Blast", The Washington Post, October 13, 2006. "North Korea Nuclear Test Confirmed by U.S. Intelligence Agency", Bloomberg, October 16, 2006. 35 Albright, David, Paul Brannan, and Andrea Scheel Stricker, Detecting and Disrupting Illicit Nuclear Trade after A.Q. Khan, The Washington Quarterly, CSIS, 33:2, April 2010, pp. 85-106.

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known, and PSI endorsees had a new and powerful argument to request other states endorse the statement of interdiction principles and join PSI. And states following the BBC China interdiction and Khan revelations endorsed in the dozens, changing the nature and character of the initiative.

5.5 PSI Expands

PSI embraced the new endorsees and the ranks continued to swell. Indeed, President Bush noted in 2004:

We are leading the world with confidence and moral clarity. And we're calling on other nations to help us. There are over sixty nations involved in the Proliferation Security Initiative, nearly forty nations in Afghanistan, over thirty nations in Iraq, countries committed to the same thing we're committed to, our own security through spreading democracy, and peace, and freedom. Over the next four years, I will continue to build coalitions to make the world a peaceful place. But I will never turn over America's national security decisions to leaders of other foreign countries.36

However, as PSI's reach expanded, it was changed fundamentally qualitatively and quantitatively. For example, not all endorsees really understood the statement of interdiction principles.37 Teams of proliferation experts were dispatched to explain PSI, its growing exercise agenda, and the legal underpinnings of the initiative. Meetings now had to consider the sixty or more states that could potentially send delegations or participate in the growing number of live and port exercises or tabletop exercises. Logistics required greater staffing, hotels needed to be booked and conference rooms expanded to accommodate the larger crowds of delegates, staffers,

36 “Remarks by President Bush in Waukesha”, Waukesha County Exposition Center, Waukesha, Wisconsin, July 14, 2004, . 37 See, Christer Ahlström, The Proliferation Security Initiative: international law aspects of the Statement of Interdiction Principles, SIPRI Yearbook 2005: Armaments, Disarmament and International Security, Non- Proliferation, Arms Control, Disarmament, 2004, pp. 743-767.

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press and those just interested. Success was a challenge for PSI. PSI was an activity, not an organization and with no central decision making apparatus, no secretariat, no structured way to exchange information or even adjudicate issues and the infusion of nearly 50 new endorsees stretched capacity.

Despite the growing pains, PSI thrived and expanded dramatically and it did so from roughly October 2003 to December 2005 for several reasons, mainly that PSI was success, had low barriers to entry, was relatively low cost, sent a message at home and abroad that a state was serious about proliferation issues and finally, permitted a state to participate at its speed consistent with its political will.38 Considering a few of the more relevant reasons for PSIs rapid expansion on the global stage, first and perhaps foremost was the fact that PSI was viewed as a successful global initiative that worked and any state who wanted to be aligned with proliferation prevention could join.39 Endorsing the statement of interdiction principles and going on the record as taking steps against WMD proliferation were all viewed in the close aftermath of 9/11 as not only an international commitment against the fear posed by weapons of mass destruction, but as a reassuring message to constituents at home.40 Second, as PSI was designed, the barriers to entry were low in that a state could express a political commitment that endorsed PSI and affirmed the statement of interdiction principles and that was all that was required to join. Usually, this meant no treaty requirements, no legislative action but merely a political commitment to the PSI cause.41 Third, once in, a state participated to the degree that its political

38 Williams, Ian. “Proliferation Security Initiative: Ten Years On: In Warsaw, the WMD interdiction initiative is getting a second look, and hopefully a second wind”, Arms Control Association, May 28, 2013, . 39 “Success of Proliferation Security Initiative Lauded in Congress, Expansion of initiative proceeding, State's Rademaker tells House panel”, US Embassy, June 9, 2005. 40 Minkov, Vladimir, Vadim Simonenko and George Stanford. Nuclear Shadowboxing: Legacies and Challenges, Fidlar Doubleday, 2005, pp. VI85-VI88. 41 Ho, Joshua and Catherine Zara Raymond (ed.). The Best of Times, The Worst of Times: Maritime Security in the Asia-Pacific, Institute of Defense and Strategic Studies, World Scientific Publishing Co. Pte. Ltd., 2005, pp. 243- 245.

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leadership decided.42 This meant that joining PSI was not only relatively easy, but at potentially a manageable cost. Not every state need attend all the meetings or exercises and if it desired to attend, there was the possibility that one or some of the original eleven states might be willing to absorb the costs or at least provide a subsidy for participation. Fourth, it was not only the international participation costs that were perceived as low, but the cost at home was also manageable. The emphasis was on self-policing and creating a bias for action so if a state endorsed the statement of interdiction principles, a self-study of existing laws and perhaps legislation to make the transit of weapons of mass destruction, components, or means of delivery illegal were all that were needed to satisfy the political requirement.43 It is worth noting that United Nations Security Council Resolution (UNSCR) 1540 came into effect during this time that mandated that each state of the United Nations General Assembly report on and strengthen legislation for the prevention of WMD proliferation. The obligations imposed by endorsing PSI and the statement of interdiction principles were viewed as possibly mere addendums to the requirements mandated by complying with international obligations under UNSCR 1540.44 Adopted unanimously on April 28, 2004, UNSCR 1540 established obligations under Chapter VII (enforcement) of the United Nations Charter that all member States develop and enforce appropriate legal and regulatory measures against the proliferation of chemical, biological, radiological, and nuclear weapons and their means of delivery and to prevent the spread of weapons of mass destruction to non-state actors, such as terrorist. UNSCR 1540 specifically recognized the threat posed by non-state actors if they acquired weapons of mass destruction and established an obligation for states to modify their internal legislation to prevent this. More importantly, it requires the criminalization and enforcement under domestic law of various forms of non-state actor involvement in weapons of mass destruction and its related activities.45 As

42 Kaplan, Eben. “Backgrounder: The Proliferation Security Initiative”, Council on Foreign Relations, October 19, 2006, . 43 “Nuclear-weapons proliferation: Going critical, defying the world, a big-power stand against North Korea and Iran? Or rivalry as usual?” The Economist, October 19, 2006. 44 “Security Council decides all states shall act to prevent proliferation of mass destruction weapons". United Nations, April 28, 2004. 45 Heupel, Monika. ‘Implementing UN Security Council Resolution 1540: A division of labour strategy", Carnegie Endowment for International Peace, 2007, p. 87.

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such, many states surely felt that PSI's emphasis on self-enforcement proliferation prevention could be achieved with minimal extra effort while complying with the UNSCR 1540 mandate.

The successful interdiction of the BBC China and the roll-up of the Khan network which led directly to Libya's "strategic decision" to abandon its WMD programs represents a remarkable turn of events and is perhaps even more remarkable since it was all ascribed by some as directly related to a new, novel, flexible proliferation prevention activity called PSI.46 Indeed, over time its success seemed to grow. Not only did Muamar Gaddafi give up his nuclear program, he was willing to give up all of his chemical weapons, with the exception of a small amount of precursor and non-weaponized chemicals, and he also gave up his biological weapons program, limited though it was.47 PSI was hailed as a success and rapidly states, including states as diverse as those with global reach such as Russia to states who were the world's "flags of convenience" such as Liberia and the Netherlands, to states whose controlled vital shipping lanes such as Panama and Singapore, to states who were concerned about the WMD in the hands of terrorists, such as Turkey, wanted a seat at the table.48 They were interested in having their input on what PSI was becoming and where it was going.

As such, these two cases characterized PSI. The So San drove the requirement to develop PSI and the interdiction of the BBC China transformed it into the global activity it became.

As an aside, though new tools were developed during this time frame, it is worth noting that the Bush administration did not abandon traditional nonproliferation efforts but expanded them. Citing the need for a more robust nonproliferation approach in the 2002 National Strategy

46 "Strategic decision" is a term of art applied to Libya's decision to abandon its weapons of mass destruction. Tobey, William. “A message from Tripoli, Part 2: How Libya gave up its WMD”, Bulletin of the Atomic Scientists, December 3, 2014, . 47 “Chronology of Libya's Disarmament and Relations with the United States”, Arms Control Association, February 2014, . 48 The International Transport Workers’ Federation list 32 registries it identifies as Flags of Convenience. Panama, Liberia and the Marshall Islands are the largest Flags of Convenience States by tonnage. “Flags of Convenience Countries”, the International Transport Workers' Federation, June 6, 2005.

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to Combat Weapons of Mass Destruction,49 the Bush administration pushed for and got the important proliferation prevention tool United Nations Security Council Resolution 1540. As noted above, this key resolution focused on requiring all members of the General Assembly to criminalize the transfer of WMD technology to terrorist organization.50

49 The National Strategy to Combat Weapons of Mass Destruction, The White House, 11 December 2002, pp. 3-5. 50 Todd E. Perry, “The Growing Role of Customs Organizations” in James Doyle, Ed., Nuclear Safeguards, Security and Nonproliferation: Achieving Security with Technology and Policy, Elsevier Inc., Burlington: MA, p. 551.

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Chapter 6: Understanding PSI

Launched on May 31st, 2003, the Proliferation Security Initiative (PSI) represents a landmark and novel effort in proliferation prevention and constitutes a new model in the way the international community builds coalitions to prevent and counter the proliferation of weapons of mass destruction (WMD).1 PSI breaks with proliferation prevention efforts of the past and seeks a flexible and dynamic framework that can quickly respond to a fast-moving WMD proliferation crisis.2 PSI is an “activity” rather than an organization; a group of like-minded states that agree to be bound by certain principles.3 Briefly, those principles include a commitment to interdict transfers to and from states and non-state actors of proliferation concern to the extent of their capabilities and legal authorities and to develop internal and cooperative procedures to facilitate the exchange of proliferation-related information with other countries. Additionally, states commit to strengthening their national legal authorities to facilitate interdiction and to take specific action in support of interdiction efforts. PSI is a new model in proliferation prevention and when announced in May 2003,4 was little more than aspiration and idea. The operational and organizational construct had yet to be decided. The Statement of Interdiction principles was yet to be defined and the states agreeing to the PSI concept in principle were not bound by anything other than the notion that WMD proliferation was a serious international threat and more needed to be done.

1 “Washington touts success of non-proliferation initiative”, AFP, May 27, 2008. 2 Harbaugh, Erin. “The Proliferation Security Initiative: Counterproliferation at the Crossroads,” Strategic Insights, Volume III, Issue 7 (July 2004), p. 2. 3 “Chairman's Statement at the 1st Anniversary PSI Meeting”, Krakow, Poland, Foreign Ministry of Poland, First Anniversary Meeting of the PSI, May 31-June1, 2004. 4 As argued by Jacek Durkalec, “The non-binding character of the PSI is very often perceived as an advantage. It guarantees the flexibility to adapt to a constantly changing international security environment. The PSI is also seen as a model for other similar activities, such as the Global Initiative to Combat Nuclear Terrorism.” Jacek Durkalec, “The Proliferation Security Initiative: Evolution and Future Prospects, Non-Proliferation Paper, No. 16, June 2012, p. 2. See also, National Institute for Public Policy, “The Proliferation Security Initiative: a model for future international collaboration,” Comparative Strategy, vol. 28, no. 5 (2009), pp. 397–405.

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As PSI evolved, a few key attributes began to take shape. By design, PSI was not going to seek universality. PSI was not going to be governed by a Secretariat, would not have a large, fixed staff, and would not be guided by the decisions of an executive board. It would attempt to bring the best of what an endorsing state could offer and would require no more. The barriers to entry were low, first a political commitment to do more under the concept of PSI, then endorsing a set of interdiction principles.5 While all states were invited to join PSI and agree to adhere to a statement of principles, PSI endorsee acknowledged that not all states would agree to do so. That suited the 11 founding PSI endorsees just fine since active involvement, at least at the outset, was viewed as more important that merely “signing-up” as many endorsees as possible. Indeed, the Chairman’s statement at the second PSI meeting in Brisbane, Australia specifically states:

Participants agreed on the importance of building a broad and effective partnership of countries prepared to play a part in disrupting and stopping the trafficking in WMD, missiles and related items. They agreed effective implementation of the PSI will require the active involvement of countries around the world. As the PSI moves forward, they aim to involve all countries that have the will and ability to take action to address this menace. It also will be crucial to involve countries that are key flag, coastal or transit states, and others that are used by proliferators in their WMD and missile trafficking efforts.6

While unstated, one rationale for PSI assumed that universality lowers effectiveness and brings proliferation prevention down to the least common denominator. Given the threat posed by weapons of mass destruction, PSI sought a more effective and flexible framework. Stated another way, global acceptance through traditional diplomacy whether through the United

5 See, “Remarks of John R. Bolton, Under Secretary for Arms Control and International Security Affairs”, Remarks at Proliferation Security Initiative Meeting, Paris, France, US Department of State, September 4, 2003 where he laid out the statement of interdiction principals, . 6 “Proliferation Security Initiative: Chairman's Statement at the Second Meeting, Foreign Ministry of Australia Second Meeting of the PSI”, US Department of State, July 9-10, 2003, Brisbane, Australia, July 10, 2003, .

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Nations process or the Nonproliferation Treaty Regime (NPT) represented a long, negotiated and cumbersome policy process that was viewed as quite rigid, time intensive and ultimately representing a negotiated minimum baseline standard.7

More fundamentally, PSI sought to address limitations in the global proliferation prevention framework as it existed in the early 2000s. For example, the “grand bargain” at core of the NPT only works if states act consistently and responsibly. The grand bargain is a pledge that non-nuclear weapons states will not pursue or acquire nuclear weapons while nuclear weapons states agree to provide nuclear technology for peaceful purposes to non-nuclear weapons states and ultimately to denuclearize. The problem was clearly evident in the early 2000s as states such as North Korea, Iraq and Iran used the cover of building a peaceful nuclear weapons program to mask their intention to develop nuclear weapons. This “giant loophole” persuaded many in the proliferation prevention community that little could be done to tighten the NPT sufficiently to counter states seeking to divert nuclear energy programs to nuclear weapons.8 PSI attempted to move beyond the minimum baseline and raise the costs to would be proliferators such as North Korea by not seeking universality but by focusing on specific countries with a common appreciation of the proliferation threat and a shared understanding of practical steps needed to counter the threat.9

Another distinguishing attribute of PSI that differs from more traditional proliferation prevention efforts is that PSI is operationally focused. The emphasis is on improving the ability of endorsing states to take action and where necessary, interdict the illegal transit of WMD at sea, on land or in the air. To accomplish this, during the first five years of PSI, the member

7 See generally, Touval, Saadia. “Why the U.N. Fails: It Cannot Mediate,” Foreign Affairs, September/October 1994, . 8 Sovacool, Benjamin K. “Contesting the Future of Nuclear Power: A Critical Global Assessment of Atomic Energy”, World Scientific, 2011, pp. 187–190. 9 Holmes, James R. “India Looks Seaward: The Case of the Proliferation Security Initiative,” University of Georgia Center for International Trade and Security, undated, pp. 151-164.

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states engaged in a high number of interdiction exercises. As stated by the US Strategic Command Center for Combating WMD, the PSI exercise activities:

… can vary in size (2-30 nations) and complexity, often explore and examine diplomatic and Interagency coordination mechanisms in order to exercise national and international laws and customs authorities designed to stop WMD proliferation. They may include tabletop as well as field exercises to examine scenarios, develop potential courses of action and test solutions for ground, maritime, and/or air interdictions. The most visible field exercises include either simulated in-port or at sea interdictions. These activities typically involve multiple PSI partner nations' combined military and civil law enforcement assets that practice communications and tactics related to boarding and searching vessels suspected of transporting WMD-related material and other activities.

The GCCs host or participate in partner nation PSI exercises within their area of responsibility (AOR), as well as in adjacent AORs. For example, the Cell embeds table top and at-sea counterproliferation interdiction vignettes within USSOUTHCOM's annual Exercise PANAMAX and within Exercise PHOENIX EXPRESS and SAHARAN EXPRESS in USAFRICOM's AOR. In addition, dedicated PSI exercises include LEADING EDGE in USCENTCOM's AOR and an annual six-nation rotational exercise series within USPACOM's AOR. These embedded and dedicated WMD interdiction events seek to enhance participants' understanding of the PSI and WMD interdiction processes, as well as serve as an opportunity to engage non-endorsing state representatives to join in supporting the overall goal to counter WMD proliferation worldwide.10

Since PSI’s focus would be on endorsee state self-regulation and operational interdiction, there would be no need for an elaborate international staff. Indeed, there is no PSI “organization” per se; no headquarters or PSI staff located in Geneva or The Hague to process

10 “USSTRATCOM Center for Combating WMD (SCC WMD) Proliferation Security Initiative (PSI) Support Cell”, US Strategic Command, undated, .

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requests for information or verify compliance.11 PSI works due to the high level political commitment of its member states coupled with having the operational capacity to interdict when and where necessary. Therefore, each interdiction opportunity is administered on a case-by-case basis predicated on the unique characteristics of the specific events as they are unfolding. Not all member states are involved in each operation but it is assumed that those who can assist will. The purpose here is to foster a “bias for action” where states are predisposed to work together to stop the illegal transfer of weapons of mass destruction technology, materials, components and knowledge.

While PSI is a new proliferation prevention model, it does not stand-alone or replace the existing proliferation framework. It was designed to complement the other proliferation prevention tools such as the NPT, the Chemical Weapons Convention, the Biological and Toxins Weapons Convention and others such as the Missile Technology Control Regime. Indeed, the US State Department consistently assets this narrative. According to the State Department:

The PSI will build on existing nonproliferation export control regime efforts to identify and prevent the export of certain commodities to WMD and missile programs of proliferation concern. In this regard, the Initiative complements and works within the limits of established national and international law, including nonproliferation treaties.… (T)he PSI complements these existing tools to help prevent the proliferation of WMD, their delivery systems, and related materials. It does not replace other nonproliferation mechanisms, but provides an operational mechanism when proliferators evade these regimes.12

In order to understand PSI and the ideas that led to its creation, it is useful to address three questions. First, where and how does PSI fit into the broader context of global and US

11 Williams, Ian. “Proliferation Security Initiative: Ten Years On,” Arms Control Now, May 28, 2013, . 12 “Proliferation Security Initiative Frequently Asked Questions (FAQ)”, Bureau of Nonproliferation Fact Sheet, May 26, 2005, .

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Countering WMD Strategy. Second, what PSI achieved during the George W. Bush administration from its inception in 2003 through 2008. Third, whether PSI, as conceived and organized, achieved its nonproliferation objectives and whether or not it is sustainable.

6.1 PSI and Counter WMD Strategy

There is little debate that one of the gravest threats the international community faces is the proliferation of chemical, biological, radiological or nuclear weapons and related technology and materials. This is even a more troubling trend when the proliferation threat is coupled with the possibility that terrorists will acquire such weapons or materials.13 As superpower rivalries eased following the end of the cold war, the stability of the established global non-proliferation regimes such as the Nuclear Nonproliferation Treaty and related agreements appeared to fracture.14 North Korea and increasingly in the late 1990’s and into the 2000’s, Iran continued to ignore or violate its commitments under the Nuclear Non-Proliferation Treaty and appeared committed to developing a capability that could produce a nuclear weapon. Concurrently, Iran and other states likewise improved their missile capabilities and North Korea continued to actively market, sell and transfer its WMD and missile technologies in exchange for cash. This included direct cooperation with Iran and Syria and other states.15 North Korea which withdrew

13 “Chapter 4: The Global Challenge of WMD Terrorism,” Country Reports on Terrorism 2009, Office of the Coordinator for Counterterrorism, August 5, 2010 . 14 For an assessment of the limitations of the NPT, see Miller, Steven E. “A Deeply Fractured Regime: Assessing the 2010 NPT Review Conference,” The International Spectator: Italian Journal of International Affairs, Volume 45, Issue 3, 22 September 2010, pp. 19-26. See also Green, Jim. “Uranium, India and the Fracturing Nuclear Non- Proliferation Regime”, EnergyScience Coalition, Briefing Paper No. 18 (revised), October 2010 (updated version of 2007 paper), pp. 4-9. 15 Kerr, Paul K., Mary Beth D. Nikitin, and Steven A. Hildreth, “Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation,” Congressional Research Service, April 16, 2014. See also, Squassoni, Sharon A. “Weapons of Mass Destruction: Trade between North Korea and Pakistan,” CRS Report for Congress, RL31900, October 11, 2006.

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from the NPT in 2003,16 conducted a small yield nuclear test on October 9, 200617 and also successfully detonated a larger nuclear weapon on May 25, 2009 with an estimated yield of 2.35 kilotons.18 It should be noted that the second test was strongly and almost universally condemned and led to the passage of United Nations Security Council Resolution 1874.19 United Nations Security Council Resolution 1874 imposed stronger economic and commercial sanctions on North Korea and encouraged United Nations member states to search North Korean cargo and demanded that North Korea halt its nuclear weapons programs and conduct no further nuclear or missile tests.20 The encouragement to search North Korean cargo was seen by many PSI endorsees and strongly supporting the objectives of PSI.

For the United States during the Bush years, the concern over WMD proliferation can be found in its strategic documents. For example, the December 2002 National Strategy to Combat WMD creates a framework that details the actions necessary build on the three pillars of nonproliferation, counterproliferation, and consequence management. 21 There is also the National Military Strategy to Combat WMD, which translates the National Strategy into eight

16 du Preez, Jean and William Potter, “North Korea's Withdrawal From the NPT: A Reality Check,” CNS, James Martin Center for Nonproliferation Studies, 2014, updated February 2015 . 17 Burns, Robert and Anne Gearan. “U.S.: Test Points to N. Korea Nuke Blast,” The Washington Post, October 13, 2006 which notes the yield was less than expected and might have been a fizzle. 18 Lian‐Feng Zhao, Xiao‐Bi Xie, Wei‐Min Wang, Zhen‐Xing Yao, "Yield Estimation of the 25 May 2009 North Korean Nuclear Explosion", Bulletin of the Seismological Society of America, April 2012 vol. 102 no. 2 467-478. See also, Choe Sang-Hun, “North Korea Claims to Conduct 2nd Nuclear Test, The New York Times, 24 May 2009 19 Neil MacFarquhar, “U.N. Security Council Adopts Stiffer Curbs on North Korea”, The New York Times, June 12, 2009. 20 For a general outline of the Resolution, see “The Korea resolution: key points,” The Daily Telegraph, June 12, 2009. 21 National Strategy to Combat Weapons of Mass Destruction, The White House, NSPD-17 / HSPD 4 [unclassified version], December 2002. See also, Love, Richard A. and Bruce Bennet, “Initiatives and Challenges in Consequence Management after a WMD Attack,” Counterproliferation Papers, Future Warfare Series, No. 26, Air University, August 2004.

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military mission areas.22 There is also a National Strategy to Combat WMD Terrorism.23 All of these strategies and associated policies have in common three key aspects: the need to prevent acquisition and use of WMD (nonproliferation and arms control or horizontal and vertical proliferation prevention); the need to protect, deter or defend against the use of WMD (counterproliferation); and the need to respond or recover from the use of WMD (consequence management and crisis response24).

PSI was arguably the centerpiece for how these strategies for countering WMD were implemented. Each strategy clearly identifies “interdiction” as a critical capability in preventing WMD proliferation. While the Bush administration continued to pursue traditional diplomacy- based nonproliferation, the need to develop plans, policies and capabilities to enhance the effectiveness of interdiction operations remained a cornerstone of Department of Defense priorities throughout the Bush years.25 The reasoning was clear, interdiction capabilities are unique in that they provide a key tool to both preventing the acquisition of WMD and in defending against possible WMD use.

PSI was also a key mechanism for addressing two other crosscutting themes in the Bush- era national strategies. First, the strategies emphasized the essential need to build international partnerships and improve the capacity and capability of partner states to meet the WMD proliferation challenge. This remained an important element of the overall strategy since it sought to reach out to partner states to build consensus on the proliferation threat, develop, and

22 The National Military Strategy to Combat Weapons of Mass Destruction, Office of the Chairman, Chairman of the Joint Chiefs of Staff, Joint Chiefs of Staff, February 13, 2006. The eight mission areas, Offensive Operations, Elimination Operations, Interdiction Operations, Active Defense, Passive Defense, WMD Consequence Management, Security Cooperation and Partnership Activities and Threat Reduction Cooperation are described on pages 7 and 8. 23 National Strategy for Combating Terrorism, The White House, September 2006. 24 Love, Richard A. and Bruce Bennet, “Initiatives and Challenges in Consequence Management after a WMD Attack,” Counterproliferation Papers, Future Warfare Series, No. 26, Air University, August 2004, pp. 31-32. 25 Ellis, Jason D. “The Best Defense: Counterproliferation and U.S. National Security”, The Washington Quarterly, 26:2, Center for Strategic and International Studies and the Massachusetts Institute of Technology, Spring 2003, pp. 115-133.

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expand partner willingness and ability to respond to the threat. According to President Bush in the National Security Strategy, “(w)e must be prepared to stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends. Our response must take full advantage of strengthened alliances, the establishment of new partnerships with former adversaries, innovation in the use of military forces, modern technologies, including the development of an effective missile defense system, and increased emphasis on intelligence collection and analysis.”26 He outlined his capstone strategy for combating WMD in that document as well:

Our comprehensive strategy to combat WMD includes: Proactive counterproliferation efforts. We must deter and defend against the threat before it is unleashed. We must ensure that key capabilities—detection, active and passive defenses, and counterforce capabilities—are integrated into our defense transformation and our homeland security systems. Counterproliferation must also be integrated into the doctrine, training, and equipping of our forces and those of our allies to ensure that we can prevail in any conflict with WMD-armed adversaries.

Strengthened nonproliferation efforts to prevent rogue states and terrorists from acquiring the materials, technologies, and expertise necessary for weapons of mass destruction. We will enhance diplomacy, arms control, multilateral export controls, and threat reduction assistance that impede states and terrorists seeking WMD, and when necessary, interdict enabling technologies and materials. We will continue to build coalitions to support these efforts, encouraging their increased political and financial support for nonproliferation and threat reduction programs. The recent G-8 agreement to commit up to $20 billion to a global partnership against proliferation marks a major step forward. Effective consequence management to respond to the effects of WMD use, whether by terrorists or hostile states. Minimizing the effects of WMD use against our people will help deter those who possess such weapons and dissuade those who seek to acquire them by persuading enemies that they cannot attain their desired ends. The United States must

26 National Security Strategy of the United States, The White House, September 2002.

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also be prepared to respond to the effects of WMD use against our forces abroad, and to help friends and allies if they are attacked.27

Building partnerships and partner capacity to counter the threat posed by WMD proliferation was not viewed as optional but central to having an effective strategy. PSI became the center for this effort and through the development of the Operational Experts Group (OEG) and the exercise and training program, PSI identified capabilities shortfalls and the OEG provided a forum that could tackle those limitations.28 Clearly following the attacks of September 11th, 2001, the Bush administration understood that the United States did not have the resources to counter the proliferation threat alone. This is why PSI was considered a key and central addition to the global nonproliferation framework. It was an important tool not just for the United States, but a complementary tool for global efforts to curb proliferation. It raised the costs to existing and would-be proliferators and increased the likelihood that proliferators would be caught.

From its establishment in 2003, PSI also realized a few quick benefits. Working with the original partner states and a number of observer states, PSI working groups identified the need to improve communications with counterparts in foreign countries, improve the understanding of international and domestic legal authorities and the need to expand the understanding of applicable resources and assets. The result was the establishment of three PSI working groups that would work to address communications, operations and legal issues.29 In May 2004, then Undersecretary of State John Bolton, in responding to a question seeking clarification between the “core group” and other working groups stated, “The core group really just began in Madrid a few weeks after President Bush’s speech in Krakow when eleven countries got together hosted by Spain and began working on what PSI would look like. In addition, in September in Paris,

27 Ibid, at pp. 14-15. 28 For a brief summary, see “Operational Experts Group” detailing the purpose and importance of the OEG to PSI and how the 21 states work together to promote efficiency that can halt WMD proliferation, . 29 Ibid.

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September of last year the group developed what we call the Statement of Interdiction Principles, which essentially is the document that describes what PSI would do. We’ve only added four countries to the core group since then because we think that the real test of PSI success will be the operational activities carried through working groups that we’ve established among the intelligence services and the military and law enforcement agencies. The real question is whether other countries participate in, one way or another, in interdiction activities. Some of them are prepared to have that known publicly, others are not. We respect those decisions. We just want to encourage more countries to work with us in a variety of ways to conduct interdictions and other disruptive activity.”30

Second, the characteristics of globalized proliferation forced the Bush administration to integrate the multiple elements of national power to focus more deliberately on the proliferation dilemma. Within the United States governmental structure, countering WMD inherently crosses many governmental Department and Agencies and to work effectively on these issues requires a multidisciplinary and Interagency approach. Many elements of national power from attacking proliferation financing to gathering intelligence on illicit actors to empowering law enforcement to investigate overseas activities are required to prevent proliferation. Therefore, any proliferation activity may potentially involve the Departments of State, Defense, Justice, Treasury, Health and Human Services and the Department of Energy, just to name a few. To their credit, the Bush administration recognized this and attempted to streamline information sharing and decision-making processes that can work across multiple Departments and agencies.31

30 Bolton, John R. “Press Conference on the Proliferation Security Initiative,” U.S. Consulate General in Krakow, Krakow, Poland, May 31, 2004. 31 For a critique noting the shortcomings of Interagency cooperation regarding interdiction and PSI, despite establishing informal working groups and noting a lack of budgetary authority and organization, see, Government Accounting Office, “U.S. Agencies Have Taken Some Steps, but More Effort Is Needed to Strengthen and Expand the Proliferation Security Initiative,” GAO Highlights, Report GAO-09-43, November 2008. The report states “U.S. Agencies Have Taken Some Steps, but More Effort Is Needed to Strengthen and Expand the Proliferation Security Initiative Agency officials reported that this informal Interagency working group is valuable because it is a regular channel for exchanging information about PSI and setting priorities identified at multinational PSI planning meetings among all U.S. agencies that support PSI activities.” Ibid. 14.

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From its inception, PSI attempted to combine the varied capabilities from military to law enforcement, from legal analysis to criminal prosecution. This was one of the benefits of having PSI originate as a presidential initiative. As a presidential initiative, PSI had the standing and attention to command improved Interagency integration and this high-level attention also translated into the ability to work more effectively with PSI partner countries.

6.2 Meeting PSI’s Objectives

PSI’s quick growth demonstrated both its attractiveness as a nonproliferation tool and exposed and highlighted some of its limitations.32 The United States and other PSI partners clearly improved their capabilities to interdict WMD-related shipments focused primarily on the components needed for WMD development and production. Some of these improvements were operational in nature and centered on actions based on security forces and law enforcement officials improving their ability to better identify, inspect, and stop materials that could be used in dangerous weapons development programs. This learning process was facilitated by regular interactions among PSI partners in the military, legal, law enforcement, information, and diplomatic communities who gathered to refine operational concepts to conduct interdictions. The robust exercise program that formed one of the foundational cornerstones of PSI also improved operational activities. Indeed, the PSI exercise program was and is one of the only global, Interagency, and multinational exercise programs that allow countries to practice

32 President Bush noted on the two-year anniversary of PSI’s announcement in Krakow Poland on 31 May 2003, that over 60 states had endorsed the statement of interdiction principles. “Bush Urges Endorsement of PSI Interdiction Principles: Initiative allows nations to expand capacity to stop WMD trafficking”, US Department of State, May 31, 2005, .

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applying the range of interdiction tools, often in coordination with partner countries where non- endorsing states can participate as observers.33

PSI also significantly expanded the global awareness of the WMD proliferation problem and gave visibility to member states on the range of interdiction options available. Because of PSI, there is a deeper understanding of the ways in which proliferators are exploiting, undermining, and in some cases violating, international law and national authorities. Due in large measure to the regular meetings of PSI’s operational experts groups during the Bush administration and the regular meetings of the legal working group within the OEG, awareness of how existing laws could be applied to interdict illicit WMD-related shipments improved.34 One reason for this may be the approach PSI took with regard to developing a workable legal framework for interdiction. PSI did not seek to create new laws, but rather sought to find ways to help states bolster their existing legal authorities through a process of self-study and consultation with relevant ministries.35

It is important to note that even in the early days of PSI, it was clear that there were limitations with the initiative. First, proliferators did not remain static and started to develop their own mechanisms to operate around the obstacles that PSI partners put in place. Not surprisingly, proliferators adapted their practices to avoid providing PSI partner states with reason or means to take action. By 2009 just after the end of the Bush administration, President Obama noted the changing and growing nature of the threat.

Today, the Cold War has disappeared but thousands of those weapons have not. In a strange turn of history, the threat of global nuclear war has gone down, but the risk of a nuclear attack has gone up. More nations have acquired these weapons. Testing has

33 For one perspective on the Australian experience with PSI exercises, see “Australian contributions to foreign hosted PSI exercises”, Department of Defense, Australian Government, undated, . 34 “Proliferation Security Initiative Frequently Asked Questions (FAQ)”, Bureau of Nonproliferation Fact Sheet, May 26, 2005, . 35 Ibid.

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continued. Black market trade in nuclear secrets and nuclear materials abound. The technology to build a bomb has spread. Terrorists are determined to buy, build or steal one. Our efforts to contain these dangers are centered on a global non-proliferation regime, but as more people and nations break the rules, we could reach the point where the center cannot hold.36

Second, proliferators advanced their own capacities while capitalizing on the global marketplace, procuring and transporting basic goods and intermediate materials instead of complete products. This challenge is particularly acute for “dual use” items; items that can be used both legally for one purpose but can also be used for WMD-related purposes. 37 When PSI was being developed, the driving objective was to interdict weapons and WMD-related components – the key imperative was focused on interdicting an actual weapon being smuggled to a dangerous end user such as a state of proliferation concern or a terrorist organization. This imperative, however, is somewhat less compelling when the items of concern are dual use, not illicit, and in the normal stream of commerce.38 In the absence of other corroborating information, such goods would not raise a “red flag” for any grantor of export licenses or port inspector. The question then becomes how to stop only those shipments that are bound for entities of proliferation concern, specifically, terrorist organizations and state-based WMD programs. Many in the Bush administration recognized that PSI may not be the best tool to address this complex problem but would remain an important component in raising the costs to proliferators. The dual use challenge was highlighted with respect to chemical weapons in a US Department of State report on WMD terrorism. The report notes:

The growth and sophistication of the worldwide chemical industry, including the development of complex synthetic and dual-use materials driven in part by the emergence

36 President Barack Obama, Prague Speech, April 5, 2009. 37“ Proliferation Security Initiative Frequently Asked Questions (FAQ),” Bureau of Nonproliferation Fact Sheet, May 26, 2005, . 38 “Suspected WMD-Related Dual-Use Goods and Procurement Transactions Regime Finance and Procurement - Annex I,” Central Intelligence Agency, April 23, 2007, .

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of nanotechnology, may make the task of preventing and protecting against this threat more difficult. Preventing chemical terrorism is particularly challenging as terrorists can, with relative ease, use commercial industrial toxins, pesticides, and other commonly available chemical agents as low-cost alternatives to conventional attacks.39

Third, PSI coincided with the growing need for cheap energy and heightened interest in nuclear power. This created more demand for nuclear material and injected more volume into the trade in nuclear material.40 PSI did not anticipate this new demand and did not account for a situation where there would be a sharp increase nuclear materials legally shipped as a commodity. Regardless of the legality of the shipments, the proliferation risk is increased.

In evaluating PSI as a concept, a number of shortcoming and questions remain. One of the primary challenges is the need to balance dual use commerce without unnecessarily disrupting legitimate commercial trade was and remains a difficult challenge. The dual-use dilemma requires PSI member states to balance national security interests with potentially competing interests in trade and development. This problem provided an incentive for many governments to build bridges with industry stakeholders positioned at all points along the global supply chain, with differing levels of success.41 A Norwegian Deputy Minister put it well when he said:

The shipping industry can make an important contribution to global counter-proliferation efforts through their participation in international shipping organizations. But the shipping companies and individual ship masters need information in order to get a

39 “Chapter 7 -- The Global Challenge of WMD Terrorism: Country Reports on Terrorism,” Office of the Coordinator for Counterterrorism, April 28, 2006, . 40 Sokolski, Henry, ed. “Executive Summary,” Moving Beyond Pretense: Nuclear Power And Nonproliferation, Strategic Studies Institute, U.S. Army War College Press, June 17, 2014, pp. 1-3.

41 Traavik, Kim, “PSI and the Shipping Industry: Speech by the Norwegian Deputy Minister, The Nuclear Files, Project of the Nuclear Age Peace Foundation, Krakow, Poland, June 1, 2004, .

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sufficiently clear understanding of the concerns of the authorities. The latter, for their part, need to understand the practical and financial constraints under which the shipping companies operate. Hence, governments and the shipping industry should together seek pragmatic and efficient ways of addressing proliferation concerns, with as little interference as possible in the day-to-day operations of the ships and the shipping companies.

Governments need to identify the best ways and mechanisms to engage the shipping industry in a dialogue, and get it actively involved in prevention activities. It is important to raise the shipping industry’s awareness of proliferation problems and concerns. We should keep in mind that in most cases involving cargos of proliferation concern, the operator of the ship, as well as the shipping company involved, had no knowledge of the proliferation activity, and were thus unwitting participants in the proliferation activity.42

PSI sought to bridge this gap by reaching out to the industry leaders particularly in the maritime shipping and financial arenas. Indeed, the London PSI meeting in 2006 specifically called for building a “public-private partnership to combat WMD proliferation.”43 However, the results from industry outreach have been less than what was hoped for. This is due to a number of disincentives for industry to engage. First, there is no single “PSI” – no standing group, organization, body or even board for industry to engage with. Industry can quite rightfully ask who speaks for PSI, who can make commitments, who adjudicates differences, and what force or authority does a “political commitment” to a statement of principles actually have? Second, the shipping industry is built for commerce and profit, not the prevention of trafficking in WMD- related items and materials. Adjusting this formula imposes costs and cuts into margins. Third, success in the shipping industry often rests on speed of transport. The entire PSI concept –

42 Ibid. 43 The London meeting was the third industry outreach meeting, the first was in August 2004 focused on the container line industry in Copenhagen, Denmark and the second in September 2005 which was concerned with the air cargo industry in Los Angeles, California. Office of the Spokesman. “London PSI Meeting Advances Public- Private Partnership to Combat WMD Proliferation,” US Department of State, September 26, 2006, .

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interdiction principles – is based on the ability to identify and prevent the transfer of WMD- related commodities thus monitoring and where needed, slowing down or stopping commerce. For most of industry, time matters and time is money. Diverting a ship, getting it into port, conduction a search, identifying the suspect commodity, and removing it from the ship (possibly needing to render it safe which may require specialized personnel and capabilities) take time and diverts cargo from the intended route. The fourth reason is similar, who bears the liability when a ship is interdicted and diverted? When the cargo does not arrive where it is supposed to be on time, who bears the burden when the commodity end-users do not get their commodities? Typically, this is resolved as a contract suit in a court of law but who gets sued, and more importantly, who pays? If it is the cargo carrier, that will raise prices as the shippers seek insurance to cover expected coast. And what if a ship is interdicted and on suspicious cargo is found? Is this negligence or gross negligence, for example, on the part of a state requesting a flag state to either make or allow an interdiction? Finally, probably the most important reason industry has a disincentive to participate in PSI is compellance. When PSI calls for outreach to industry and the development of a public-private partnership, industry is typically weary. First, states regulate and more regulation is usually not appealing to industry. If participating in PSI today might lead to establishing of “rules of the road” tomorrow, will regulation and other state- based or international law-based (perhaps through convention or United Nations Security Council action) follow? The second reason is that states, PSI-endorsees and industry view “partnership” differently. Industry tends to want a loose association where states support their corporate fiduciary responsibilities to shareholders. Industry is willing to participate, but generally favor initiatives with low cost or have “low-drag” on their corporate structure.44 PSI has numerous regional live exercises, tabletop exercises, port exercises, Operational Experts Group meetings, intercessional functional and thematic workshops, and other meetings. Industry may see little return on investment over time with this type of participation. PSI on the other hand may desire a closer, more rigid relationship where industry does agree to be bound by “rules of the road” or a statement of principles. Since PSI is a collection of states and

44 By low-drag, I am referring to the capacity challenge industry would face if they fully participated in PSI events.

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corporations are located in states, not only is there an element of compellance here, but PSI endorsees may view the “partnership” more in terms of a legal one once a commitment by a shipper is made than merely a political one.

6.2.1 Disposition and Disposal: the sad case of the M/V Monchegorsk

It is not only shippers who lack an incentive to work with PSI either. Other sectors such as contractors and ports may be disinclined to support PSI since once the suspect cargo is removed from the ship, where will it be stored, how will it be moved and how will it be disposed are all vitally important. Merely moving what could be hazardous material from a port to a secure location might put local populations at risk. For example, what if there is a chemical accident? The story of the M/V Monchegorsk is worth noting. The Monchegorsk was general cargo ship with a port of registry Limassol, Cyprus. The ship was interdicted at sea by United States’ warships conducting operations pursuant to Task Force 151 antipiracy operations as it left Iran.45 Having stopped the ship, suspicious materials were identified that potentially could violate the terms of United Nations Security Council Resolution 1747 prohibiting Iranian arms exports.46 The ship was then diverted to the port of Limassol on 29 January 2009 and a search conducted. Ninety-eight containers carrying 120, 122, 125, and 160 mm high explosives and 7.62 mm shell casings, compressed gunpowder, silver dollar-sized slugs, primer, and magnesium primers were found and off-loaded from the ship.47 Cyprus was able to exercise jurisdiction over the ship since the ship was registered in Cyprus and has flag state jurisdiction over all ships registered there. The containers were then stored at the Evangelos Florakis Navy Base under poor conditions. Unfortunately, the containers remained in the warehouses for more than two years as Cyprus struggled to determine what to do with the items. On 11 July 2011, the

45 Task Force 151 is a multinational anti-piracy force conducting operations off the Gulf of Aden and the coast of Somalia. It was organized and began operations in 2009. In 2014, it was renamed the Combined Maritime Forces (CMF). 46 “Security Council Toughens Sanctions against Iran: Adds Arms Embargo”, UN News Centre, United Nations, March 24, 2007. 47 Lewis, Jeffrey. “Saga of the Monchegorsk”, Arms Control Wonk, July 13, 2011, .

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containers exploded. The explosion killed thirteen, injured 61, created a six-hundred meter wide crater, destroyed the navy base and severely damaged the nearby power station of Vasilikos.48 Killed in the explosion included the Commander of the Cyprus navy Captain Andreas Ioannides49 as well as the Evangelos Florakis Naval Base Commander, Lambros Lambrou.50 The damage to the power station had a cascading effect since it produced over half of the power consumed by Cyprus and widespread outages occurred. Additionally, with a lack of power, the desalinization plants could not keep up with the demand for water and water shortages occurred. There was also a concern that the explosion may have released toxic fumes into the atmosphere, the putting the public in danger.51 Demonstrations followed for a week calling for the president to resign. The political fallout was severe; the Cypriot Defence Minister, Costas Papacostas, the National Guard Commander-in-Chief, General Petros Tsalikidis and Markos Kyprianou, the Foreign Minister resigned.52

The M/V Monchegorsk case illustrates a number of issues. Even when states work in concert to conduct a successful interdiction that is not the end of the story. Disposition issues such as what to do with the illicit cargo, where to put it, how to maintain it to what to do with the crew (are they witting or unwitting accomplices – do you arrest or detain them?) remain difficult challenges that raise questions about the decision-making process states must make before engaging in an interdiction. Though PSI has tried to address these issues, it has not solved them. There are ownership issues as well. Since Iran denied that the cargo was illegal, they claimed ownership and since Cyprus was unsure how to resolve the ownership issue, they were unsure what to do with the cargo. Ultimately, the Monchegorsk case had a chilling effect on states’ inclination to engage in interdiction operations. This runs counter to PSI’s objective to encourage a bias for action. The case also demonstrated that many practical issues from political

48 “Cyprus navy base explosion leaves several dead,” The Guardian, July 11, 2011, . 49 Captain Ioannides was the senior ranking officer in the Cyprus navy. 50 “The victims of the naval base tragedy”, Cyprus Mail, July 12, 2011. 51 “Reassurances on Mari health concern”, Cyprus Mail, July 20, 2011. 52 Spencer, Richard. “Anger grows in Cyprus over 'criminal errors' behind explosion”, The Daily Telegraph, July 12, 2011.

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to operational to tactical need to be considered before assisting where dangerous materials are concerned. In the future, states who are asked to support an interdiction may be hesitant unless they receive very clear assurances on precisely how these disposition issues will be resolved.

6.2.3 The Lack of Information on Actual Interdictions

PSI was conceived and implemented in part to enhance the ability of states to identify shipments of WMD proliferation concern on land, at sea and in the air, communicate with PSI endorsing states to take action against those shipments, and ultimately to interdict them. However, information on actual interdictions is sparse. As reported, Secretary of State Condoleezza Rice said in May 2005 that PSI was yielding results and that there were eleven examples of successful efforts conducted in the past nine months by the United States and ten other PSI partners.53 Jeffrey Lewis attempted to identify some of the possible interdictions the Secretary of State was referring to and found many challenges in gathering information. For example, Leew found that there were a number of discrepancies, redundancies and in fact, more than one interdiction was probably related to others. He was only to identify six possible interdiction:

• September 2004: German authorities stopped the export of 24 long-distance detonators. • September 2004: South African police seize 11 shipping containers holding components of a centrifuge uranium enrichment plant and related documentation. • End of 2004: A Gulf state (probably Dubai) intercepts 15 Vibration test machines. • January 2005: German authorities seize four special low-voltage motors destined for a nuclear power plant in Iran.

53 Porth, Jacquelyn S. “Rice Says Proliferation Security Initiative Is Yielding Results: International PSI leaders observe initiative's second anniversary”, Washington File Security Affairs, May 30, 2005, .

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• February 2005: Taiwanese authorities arrest a Taiwanese man for shipping missile parts to Libya. • May 2005: Authorities in Antwerp intercept a shipment of charged aluminum plates bound from Hamburg to Iran.54

As reported in a Congressional Research Service report in 2006, the only other quantifiable statement on the numbers on interdictions attributed to PSI is from then-Under Secretary for Arms Control and International Security Robert G. Joseph. He stated that between April 2005 and April 2006 PSI endorsees worked “on roughly two dozen separate occasions to prevent transfers of equipment and materials to WMD and missile programs in countries of concern.”55

The lack of specificity on specific interdictions is understandable if you consider, in the words of one legal scholar that “(t)here is no official or semi-official mechanism for determining what constitutes a PSI interdiction. During the early years of the PSI there were a series of (mainly United States) statements about the nature and number of PSI interdictions. More recently, there has been reluctance to quantify the PSI in any way other than by the number of SIP (Statement of Interdiction Principles) endorsing states.”56 Indeed, beginning around this time period, 2005-2006, there are few references to any PSI-related interdictions. There appears to have been a conscious effort to separate PSI as a political commitment focused on strengthening laws, building interdiction capacity, sharing information and best practices and exercises and training – everything to prepare for an interdiction operation – and actual interdiction operations. The focus shifted to using terms similar to PSI has led to “a number of interdictions” or “provides a framework for future interdictions” again, separating the PSI from actual interdiction operations. It was reported in 2013 that “The State Department also said it

54 Lewis, Jeffrey. “PSI: The Record to Date”, Arms Control Wonk, June 6, 2005, . 55 Squassoni, Sharon. “Proliferation Security Initiative (PSI),” CRS Report to Congress, RS21881, September 14, 2006, p. 3 citing Joseph, Robert G. Statement in Warsaw, Poland, June 23, 2006. 56 Dunne, Aaron. “The Proliferation Security Initiative: Legal Considerations and Operational Realities,” SIPRI Policy Paper, No. 36, May 2013, p. 10. See Also, Boese, Wade, “Interdiction initiative successes assessed”, Arms Control Today, vol. 38, no. 6, July/Aug. 2008. Italics are the author’s for clarification.

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could not release statistics on the number of interdictions carried out via the PSI program.”57 This indicates that the shift in thinking in 2005 or 2006 is still a matter of policy today.

The lack of specific information on PSI interdiction raises questions over how to assess the relative value of PSI in the broader proliferation prevention framework. For example, Jofi Joseph argued in Arms Control Today as early as 2004:

Therefore, a fair question to ask, but difficult to answer, is to what extent PSI has made additional interdictions possible. Would interdictions like the intercept of the Libya- bound freighter last fall have occurred without the organizing framework of PSI?

Although government officials in PSI core states have discussed some of their successes to date, no accompanying information has been provided on failures. Have there been cases where a PSI participant identified a suspicious naval vessel but was unable to convince the state where the vessel was docked to undertake inspections?58

Of the few made public, most of them are more recent. For example, in 2009, shortly after the United Nations Security Council adopted Resolution 1874, which imposed a global embargo on North Korean trade in weapons, the Kang Nam 1, a North Korean freighter sailed in to international waters.59 The United States monitored the ship but did not interdict it. It did turn around and return to port. It was unclear what the cargo was but South Korea suspected it was rifles and rocket launchers destined for Myanmar.60

57 Oswald, Rachel. “U.S.-Led WMD Interdiction Program Could do More, GOP Lawmakers Say”, Global Security Newswire, March 14, 2013. 58 Joseph, Jofi. “The Proliferation Security Initiative: Can Interdiction Stop Proliferation?”, Arms Control Today, June 1, 2004, . 59 Choe Sang-Hun, “South Korea Says Freighter from North Turns Back,” The New York Times, July 6, 2009. 60 Ibid.

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There is also the case of the United States attempt to intercept the M/V Light, a North Korean ship believed to be carrying missile technology to Myanmar in late May 2011.61 Interestingly, the ship was flagged in Belize, not North Korea and Belize is a member of PSI and according to reports, Belize gave the United States permission to interdict the ship.62 Additionally, it was reported that the ship was hailed four times by a US warship to stop and be inspected under the authority granted by Belize but the North Korean crew refused.63 While not boarded, the ship returned to North Korea, thus preventing the cargo from reaching its intended end users. Two arguments can be made here: first, this was a successful interdiction since the cargo failed to get to the intended users; second, this was a less than successful interdiction since ultimately, the ship was not stopped and the weapons seized. The point here is how interdiction is defined. Is it preventing the transfer of weapons, components and technology or is it seizing and disposing of it?

6.3 Defining and Scoping Interdiction

Another shortcoming is one of definition and scoping the concept of interdiction. From PSI’s inception, there was legitimate international debate on what, exactly, was meant by interdiction. For example, is it the interdiction of a weapon in transit, the disruption of a WMD program, the exploitation of WMD intelligence, the arrest of key individuals involved in a suspected program or venture, the seizing of assets and/or finances that would otherwise further proliferation? Is it some combination or subset of the above? Additionally, there is the issue of the role of interdiction in the context of reinvigorated diplomatic efforts. As the Bush administration placed great emphasis on broader, deeper and more meaningful international engagement, PSI partners were left to consider the value of interdiction against the fact that it may be perceived by these regimes as a mild form of harassment. Indeed, a number of academics and officials characterized PSI during the Bush administration as a United States tool

61 Sanger, David E. “U.S. Said to Turn Back North Korea Missile Shipment,” The New York Times, June 12, 2011. 62 Ibid. 63 Ibid.

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of coercion that sought to advance United States’ interests and preference for unilateral United States’ action.

6.4 Sustaining PSI

While the Bush administration placed great stock in the idea that PSI was merely an additional tool in the fight to counter the proliferation of WMD, the question remained on how well and to what degree PSI was actually integrated with, or was indeed complementary to, other nonproliferation tools. Certainly, for PSI to be effective, it must be viewed as part of a global, layered defense against proliferation that fits within treaty-based regimes and cooperative threat reduction programs. Noting how PSI was an important tool in the broader spectrum of proliferation prevention, Under Secretary of State for Arms Control and International Security Rose Gottemoeller stated at PSI’s 10 Anniversary High-level Political Meeting in Warsaw, Poland:

The PSI is an important tool in our efforts to break up black markets, detect and intercept WMD materials in transit, and use financial tools to disrupt this dangerous trade. It is an innovative and proactive approach to preventing proliferation that relies on voluntary actions by states that are consistent with their national legal authorities and relevant international law and frameworks. PSI participants’ use existing authorities — national and international — to put an end to WMD-related trafficking.64

However, PSI had noteworthy differences from the more traditional proliferation prevention communities since it was not designed to be universal, lacked a formal organizational structure such as a secretariat, was operationally focused and was designed to be adaptive to case-by-case contingencies. It was part political and diplomatic, part operational and part quite tactical – the actual interdicting of WMD-related materials. Since it was not a standing, regular

64 “Proliferation Security Initiative,” U.S. Department of State Website, undated, .

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activity, many in the arms control and nonproliferation communities were at a loss as to how to understand much less engage PSI.

Perhaps the most fundamental question about PSI from its inception was and remains PSI’s sustainability. The Bush administration argued that PSI was a mechanism to enhance interdiction and improve law enforcement efforts but it remains difficult to understand how this could be maintained without at least some rudimentary institutionalization or strengthening of the PSI organization. In a Congressional Research Service report in 2006, it was noted that “Others, however, question the seriousness of the administration’s effort as well as its sustainability, as long as no formal mechanisms are created. The current configuration holds nothing particularly to bind PSI adherents to this cooperative endeavor.”65 The same report also cautions, “PSI has no international secretariat, no offices in federal agencies established to support it, no database or reports of successes or failures, and no established funding. Many consider the lack of formal mechanisms an advantage and point instead to high- level meetings in Europe, Australia and the United States, the agreement on a set of principles in September 2003, and cooperative exercises to test interdiction procedures.”66

There are many concerns over the sustainability of the PSI framework. Early on, there was a recognition that PSI could be in perpetual jeopardy as, over time, there would be changes in state leadership, turnover in participants, and the challenges associated with organizing and holding PSI events. Yet at the time PSI was conceived, many in the United States believed that institutionalization could not be done in such a way as to preserve the flexible and adaptive nature of PSI against the changing (and unknowable) future security environment. For example, interdiction operations by their very nature are information-driven and may involve one or several participating states, as geography and circumstances dictate. PSI allows for countries to work together in combinations on an action-oriented and as-needed basis. It is not surprising that

65 Squassoni, Sharon. “Proliferation Security Initiative (PSI)”, CRS Report to Congress, RS21881, September 14, 2006, p. 3. 66 Ibid.

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the Bush administration found it hard to envision how a treaty-based organization or a multilateral treaty organization with a standing secretariat could ensure the same degree of flexibility.

Preventing and countering proliferation is largely about raising the costs to proliferators who are engaging in proliferation activities.67 Measures and activities that raise the cost of proliferation need to be continually adjusted since proliferators strategies and actions do not remain static. PSI helped to achieve the goal of raising costs and did have an impact on proliferators’ behavior. More importantly, as conceived and implemented, PSI did close the gap between strategy and tactics; between the idea that more needed to be done to prevent WMD proliferation and the capabilities, tactics, techniques and procedures needed to implement the strategy. Political commitments to PSI from senior levels of government did translate to a sense of urgency and importance for the law enforcement officers and customs inspectors at the ports and borders and those charged with conducting interdiction operations.68 It did result in starting the process that led to member states conducting legal reviews of domestic authorities and international legal frameworks, including the ability of states to fully implement United Nations Security Council Resolutions, to identify where what could be done and where ambiguities could be identified and worked. Most importantly perhaps, PSI afforded states concerned by proliferation trends the opportunity to integrate thinking on how to confront proliferation in a changing and globalized security environment and added an important tool that vastly expanded the ability to successfully stem proliferation. There are limitations to PSI, including a few less than successful efforts such as industry outreach, the less well known attempt to include the financial aspects of WMD proliferation as a PSI effort69 and the lack of publicly available information on specific interdictions. However, while it is hard to quantify PSI’s impact on global WMD proliferation prevention, there is little doubt that PSI drove up the costs of doing

67 Shulman, Mark R., “The Proliferation Security Initiative and the Evolution of the Law on the Use of Force,” Houston Journal of International Law, Vol. 28, No. 3, Spring 2006. 68 Joseph, Robert G. “Statement in Warsaw”, US Undersecretary for Arms Control and International Security, US Department of State, June 23, 2006. 69 A Proliferation Finance Workshop was held in Washington, D.C. from January 31 to February 1, 2007.

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business for proliferators and provided a mechanism to discuss strategies, concepts and activities among a large set of willing states. While metrics are difficult, the number of exercises, the success of working groups and OEG meetings and the 10th anniversary High-level political meetings, and sheer participation in the initiative, currently 105 states, justify the assertion that PSI was a vibrant activity from inception through the Bush years and remains so today. When coupled with the threat environment as it evolved during the Bush years as described in Chapter 3, it shows the flexibility the Bush White House had in crafting PSI and the GICNT when preferred avenues were not well tailored to combat the threat. Still, since PSI avows that it is consistent with law and the Statement of Interdiction Principles is based on it, exploring just how PSI fits within domestic and international law is needed and is discussed in the next chapter.

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Chapter 7: Domestic Authority, International Law and PSI

7.1 Enhancing States’ Domestic Authorities

From its inception, PSI was hailed by the eleven original PSI member states as a creative use of existing domestic sovereign authorities and international law to expand the scope, reach and effectiveness of global proliferation prevention through cooperation and a willingness to stop the illegal transfer of weapons of mass destruction.1 Others, particularly those states associated with the Nonaligned Movement, expressed immediate concern that PSI was, at best, an unwelcome expansion of United States-led influence on the high seas and at worst, an illegal justification of further United States unilateralism.2 The most vocal and significant challenge to PSI was based on the argument that the statement of interdiction principles was illegal under international law. There were two primary arguments. The first was that PSI specifically, and interdiction more generally, lacked the requisite legal authority to conduct actions without further authorization by United Nations.3 As such, the argument put forth by the Non-aligned movement and like-minded states was that PSI as a concept was not objectionable in and of itself but absent further and explicit Security Council authorization, any PSI interdiction operation outside of this narrow interpretation violated Article 2 Section 4 of the United Nations Charter, absent an Article 51 self-defense exception.4 The other more fundamental challenge was that

1 Newman, Edward, Ramesh Thakur and John Triman. Multilateralism under Challenge: Power, International Order, and Structural Change, United Nations University Press, 2006, pp. 209-210. 2 Ronzitti, Natalino (ed.), “Modern Means of Warfare: The Need to Rely on International Humanitarian Law, Disarmament and Nonproliferation Law to Achieve a Decent Regulation of Weapons”, in Cassese, Antonio (ed.). Realizing Utopia: The Future of International Law, Oxford University Press, 2012, p. 268. 3 Gurpreet, Khurana. “The Proliferation Security Initiative: the Legal Underpinnings”, in Verma, Bharat (ed.) Indian Defence Review, Vol 19(4), Oct-Dec 2004, pp. 60-62. 4 Article 2(4) reads, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” “Charter of the United Nations, Chapter 1: Purposes and Principles”, Art. 2(4), United Nations, June 26, 1945.

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PSI interfered with the long held fundamental international right to freedom of navigation on the high seas and innocent passage. While PSI endorsees maintained that certain important exceptions to freedom of navigation principles existed, such as when a vessel was stateless or its flag was in question, the argument that PSI represented at a minimum a risk to freedom of navigation was widely held.5

To put PSI and the legal arguments in context, a few basic principles are needed. First, it is important to remember that when PSI was conceived, it was intended and designed to be a proliferation prevention tool and not something that would be used should there be an immediate need to use military force. Put another way, PSI was intended be a multinational activity used during peacetime.6 Second, all PSI interdiction are to be conducted “consistent with national legal authorities and relevant international law and frameworks.”7 Thus, existing national legal authorities and international law are the legal authority for conducting all of PSI operations and activities. PSI member states also commit themselves to trying to bolster their domestic authorities through, for example, stronger border and customs laws and regulations and by improving law enforcement training and capacity.

The basic legal arguments underpinning PSI are not new or novel. The fundamental arguments are based on improving, enhancing and expanding the scope of domestic legal authorities for endorsing states and adhering to conventional and customary international law. New laws, duly and legitimately enacted and enforced by states to criminalize WMD proliferation behavior would go a long way to raising the costs to proliferators and would-be

5 See, Papastavridis, Efthymios. The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans, Hart Publishing, 2013, pp. 139-147. 6 Luke, Ivan T. “Naval Operations in Peacetime: Not Just Warfare Lite”, Naval War College Review, vol. 66, no. 2, Spring, 2013, pp. 12-18. 7 “PSI participants are committed to the following interdiction principles to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council.” “Interdiction Principles for the Proliferation Security Initiative”, Statement of Interdiction Principles, Fact Sheet, The White House, Office of the Press Secretary, September 4, 2003, .

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proliferators. Since a state’s legally generated domestic laws are binding on the citizens and legal entities of those states and those persons and legal entities within its territory and jurisdiction who do not otherwise enjoy sovereign immunity, the reach of domestic law is an essential component of proliferation prevention. An important revelation from the So San and other potential WMD transfer cases was that many states did not outlaw such transfers. Merely working with other states to criminalize WMD transfers, it was argued by PSI proponents including Undersecretary of State John Bolton, would not only bolster the legal proliferation prevention framework but be perfectly consistent with international principles of state sovereignty and United Nations principles and concepts.8 Jurisdiction and control over vessels within or transiting domestic waters and airspace are critical elements of state sovereignty and assessing, enhancing and where necessary expanding domestic authority within their jurisdiction would improve proliferation prevention activities. Such activities include all import and export laws, customs, anti-smuggling, counternarcotics, fiscal and monetary, safety, and environmental laws, among others. Additionally, extraterritoriality and long-arm statutes provide authority and jurisdiction over persons satisfying the minimum contacts rule extending the jurisdiction of federal and or in the case of the United States, a states’ legal authority to reach beyond a state's territory.9 In the PSI context, if similar laws exist between and among endorsees that criminalize certain WMD proliferation behavior, states may more effectively work together to prevent proliferation. For example, one state may ask another to stop an illegal shipment or money transfer or request a state to search and potentially seize illicit cargo on a vessel on the high seas that is registered in that state. Additionally, some states within the PSI framework have negotiated ship boarding agreements. These ship boarding agreements allow a state (notably, the

8 Bolton, John R. “Legitimacy" in International Affairs: The American Perspective in Theory and Operation”, Remarks to the Federalist Society, Washington, D.C., November 13, 2003, . 9 “As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist "minimum contacts" between the defendant and the forum State.... The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286 (1980).

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United States) to stop and inspect a ship that is registered in another state based on proliferation concerns. There are currently eleven ship boarding agreements between the United States and other states: Antigua and Barbuda, Bahamas, Belize, Croatia, Cyprus, Liberia, Malta, the Marshall Islands, Mongolia, Panama and St. Vincent and the Grenadines.10

7.2 Relationship under International Law

PSI relies primarily on international conventional law but also draws on customary international law in international public law.11 International conventional laws are contractual in nature and are comprised of written contracts between states. International customary laws are legally binding obligations and checks on state sovereignty though state practice and acceptance.

Conventional international law derives from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. International agreements create law for the parties of the agreement. They may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted.12

10 See, Spadi, Fabio. “Bolstering the Proliferation Security Initiative at Sea: A Comparative Analysis of Ship- boarding as a Bilateral and Multilateral Implementing Mechanism”, Nordic Journal of International Law, 2006. 11 “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bond, if the parties agree thereto.” Statute of the International Court of Justice, Article 38, . 12 “International law”, Legal Information Institute, Cornell University Law School, undated, .

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Conventional international law is based on treaties and agreements among states parties. Relevant international conventional law supporting PSI and the international proliferation framework include: 1968 Treaty on the Non-Proliferation of Nuclear Weapons, 1972 Bio-logical and Toxin Weapons Convention, 1993 Chemical Weapons Convention; 1982 United Nations Convention on the Law of the Sea and the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.

The International Court of Justice Statute defines customary international law in Article 38(1)(b) as “evidence of a general practice accepted as law.” Specifically, according to the United Nations’ General Assembly Commission on International Law, “identification of a rule of customary international law requires an assessment of both practice and the acceptance of that practice as law (‘two-element’ approach). This is generally determined through two criteria, the general practice of states and what states have accepted as law.” Practice is a ‘material’ or ‘objective’ element and plays an “essential role” in the formation and identification of customary international law. It may be seen as the ‘raw material’ of customary international law, as the latter emerges from practice, which “both defines and limits it”. Such practice consists of “material and detectable” acts of subjects of international law, and it is these “instances of conduct” that may form “a web of precedents” in which a pattern of conduct may be observed.13 “The second element necessary for the formation and identification of customary international law – acceptance of the ‘general practice’ as law – is commonly referred to as opinio juris (or “opinio juris sive necessitatis”). This “subjective element” of customary international law requires, in essence, that the practice in question be motivated by a “conception... that such action was enjoined by law”.14 States are to “believe themselves to be applying a mandatory rule of customary international law”, or, in other words, “[feel] legally compelled to ... [perform the relevant act] by reason of a rule of customary law obliging them to do so”.15 It is this “internal

13 Wood, Michael. Second Report on Identification of Customary International Law, International Law Commission Sixty-sixth session, Geneva, 5 May-6 June and 7 July-8 August 2014, p. 15. 14 Hudson, M.O. The Permanent Court of International Justice, 1920-1942 – a Treatise, Macmillan, 1943, p. 609. 15 “North Sea Continental Shelf, Judgment”, I.C.J. Reports, 44, para. 76, 1969, p. 3.

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point of view” through which regularities of conduct may harden into a rule of law, and which enables a distinction to be made between law and non-law.16

Proliferation prevention in general and PSI specifically draw from both conventional and customary international law. This is important for PSI since its success relies on an agreement in terms of endorsing the statement of interdiction principles. However, this agreement is nonbinding and does not have the force of conventional law. Thus, committing to the interdiction principles is based on establishing a political commitment to establish “rules of the road” that includes strengthening domestic laws, acting in concert to prevent WMD proliferation and taking action when interdictions are necessary. Thus, PSI seeks to establish a norm with a bias for action in favor of preventing proliferation and undertaking interdiction activities where practicable and in the interest of a state. PSI, as a norm-based activity, remains a paradox during the Bush era. The Bush administration was widely criticized for failing to recognize international norms and was even more vocal in its opposition to propagating and relying on them. For example, scholars noted that the 2003 invasion of Iraq ran counter the international norm against engaging in a war of prevention:

The main concern of other states is not with the goals of U.S. policy, but with the means, especially with the Bush administration’s willingness to use unilateral military action to achieve its otherwise acceptable goals. Such action violates long-standing international norms against the use of preventive war as a legitimate policy tool, provides important relative gains for the United States in a region of the world crucial to the economic growth of major states, and increases the United States’ already considerable military advantages over major nuclear powers.17

Indeed, Joseph S. Nye, Jr. argued that, “Skeptics of soft power (Secretary of Defense Donald Rumsfeld professes not even to understand the term) claim that popularity is ephemeral

16 Ibid, para 77. 17 Pape, Robert A. “Soft Balancing against the US”, International Security 30:1, Summer, 2005, p. 25.

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and should not guide foreign policy. The United States, they assert, is strong enough to do as it wishes with or without the world's approval and should simply accept that others will envy and resent it. The world's only superpower does not need permanent allies; the issues should determine the coalitions, not vice-versa, according to Rumsfeld.”18 Nye continued, “But although Washington has rediscovered the need for public diplomacy, it has failed to master the complexities of wielding soft power in an information age. Some people in government now concede that the abolition of USIA was a mistake, but there is no consensus on whether to recreate it or to reorganize its functions, which were dispersed within the State Department after the Clinton administration gave in to the demands of Senator Jesse Helms (R-N.C.).”19 So while eschewing soft power and normative approaches in foreign policy in general, when convenient or and faced with a perceived urgent threat such as WMD in the hands of terrorists, the Bush administration sought ways to capitalize on developing norms while bolstering the impact and relevance of those norms through political commitments and other conventional international law means such as United Nations Security Council action; in this case, United Nations Security Council Resolution 1540. Together, international norms, political commitments and conventional law such as UNSCR 1540 would work in concert to create a bias against for action against WMD proliferation and ultimately, over time, create a peremptory norm or Jus Cogens against it. Peremptory norms are unique in international law. They are norms that present:

A universal character in that no state may derogate from them, despite the will of the state to do so. This scope of peremptory norms extends to conflicting customary norms, general principles of international law, and treaty provisions. Reservations in violation of peremptory norms are considered void. A treaty may neither be severed nor incidentally derogated from if it violates a peremptory norm. Peremptory norms have been

18 Nye, Joseph S. Jr. “The Decline of America's Soft Power”, Foreign Affairs, May/June 2004, . 19 Ibid.

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recognized and justiciable since the late 18th century. Indeed, peremptory norms have rendered domestic norms non-existent since the late Roman Republic.20

In other words, peremptory norms override and supersede customary and conventional international law in conflict with peremptory norm principles.

Not only do Jus Cogens constitute a prohibitive norm in international law, they also convey jurisdiction and a compellance to act. “International crimes that rise to the level of Jus Cogens constitute obligati erga omnes which are inderogable. Legal obligations which arise from the higher status of such crimes include the duty to prosecute or extradite, the non- applicability of statutes of limitations for such crimes, the non-applicability of any immunities up to and including Heads of State, the non-applicability of the defense of ‘obedience to superior orders’ (save as mitigation of sentence), the universal application of these obligations whether in time of peace or war, their non-derogation under ‘states of emergency,’ and universal jurisdiction over perpetrators of such crimes.”21

20 Conklin, William E. “The Peremptory Norms of the International Community”, Eur J Int Law, 23 (3), 2012, pp. 837-861, < https://academic.oup.com/ejil/article/23/3/837/399870/The-Peremptory-Norms-of-the-International>. 21 Bassiouni, M. Cherif. “International Crimes: Jus Cogens and Obligatio Erga Omnes”, Law and Contemporary Problems, Vol. 59: No. 4, 1997, pp. 63-64.

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While three peremptory norms are widely accepted, the peremptory norms against piracy, slavery and unauthorized broadcasting, moving toward a peremptory norm against the proliferation of WMD was on the minds of the Bush administration leadership.22

7.3 PSI and the United Nations Convention on the Law of the Sea

There has always been an uneasy relationship between the United Nations Convention on the Law of the Sea (UNCLOS) and PSI.23 The Statement of Interdiction Principles makes clear that PSI activities will be consistent with domestic and international law. According to the Statement of Interdiction Principles, PSI countries are to pursue the goals of the initiative "to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks."24

The Statement of Interdiction Principles lays out "specific actions" to be undertaken by PSI participants. For example, it calls on flag states to board and search their own vessels regardless of their location in the world and to consider providing consent to other states for such boardings.25 This PSI principle poses no problem under international law and is completely consistent with UNCLOS Article 92 that, in large measure, gives exclusive jurisdiction to a state for ships that are flying the flag of that state on the high seas.26 Article 92 also allows the flag state to waive its exclusive jurisdiction by consent and grant jurisdiction to another state. PSI takes advantage of this article by seeking to encourage the granting jurisdiction by consent to another state that may have better proximity to act or has unique capabilities for an interception.

22 Nagan, Winston P. and Craig Hammer. “The New Bush National Security Doctrine and the Rule of Law”, Berkeley Journal of International Law, Vol. 22 Iss. 3., 2004, . 23 While the United States has yet to ratify the United Nations Convention on the Law of the Sea and is thus not a state party, it is bound by customary international law to many of the principles of the convention. 24 “Statement of Interdiction Principles”, Fact Sheet, The White House, Office of the Press Secretary Washington, DC, September 4, 2003. 25 Ibid, 4(a)-(f). 26 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3 / [1994] ATS 31 / 21 ILM 1261, 1982.

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It is also settled international law that with the exception of innocent passage, states have broad powers in their territorial waters and virtually absolute power in internal waterways. Additionally, ports are normally considered part of the internal waters of a coastal state and the right of innocent passage does not apply. With regard to a coastal state’s territorial waters, “The United Nations Convention on the Law of the Sea (UNCLOS) enshrines the concept of innocent passage through a coastal state’s territorial sea. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. A vessel in innocent passage may traverse the coastal state’s territorial sea continuously and expeditiously, not stopping or anchoring except in force majeure situations.”27

Not surprisingly, coastal states have the right to inspect any and all foreign vessels that dock at its ports and are free to detain vessels and seize illegal cargo when the vessels violates the domestic laws of the coastal state. The coastal states jurisdiction based on internal waters provides the legal justification for Subparagraph 4(f) of the Statement of Interdiction Principles which calls on port states to inspect vessels suspected of engaging in WMD proliferation and seize identified cargo when found.

However, the Statement of Interdiction Principles also includes a call to “take appropriate action” in territorial seas and contiguous zones:

To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are reasonably suspected of

27 Williams, Simon O. “Maritime Security: The Concept of Innocent Passage”, The Maritime Executive, December 17, 2014, < http://www.maritime-executive.com/features/Maritime-Security-Private-The-Concept-of-Innocent- Passage>.

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carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry.28

This clause raises an apparent conflict with UNCLOS since it can be interpreted as running against the explicit right innocent passage and the freedom of navigation.

The Law of the Sea Convention guarantees and assures the right of innocent passage both in territorial waters and in straits used for international navigation.29 Article 17 restricts control over foreign vessels in the territorial sea by granting these vessels the right of innocent passage. Innocent passage requires the coastal state to permit passage through its territorial waters unless the passage is "prejudicial to the peace, good order or security of the coastal State" and lists what might qualify as an activity that prejudices "the peace, good order, or security of the coastal State."30

In order for PSI interdiction operations to be legal within the territorial waters, the target vessel must be transiting the waters in a “non-innocent” manner. However, it is unclear whether the mere transiting of WMD would constitute an action “prejudicial to the peace, good order or security of the coastal State” as required by Article 19. Grounds for making a determination that passage is non-innocent include:31

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

28 PSI Statement of Interdiction Principles, Subparagraph 4(d). 29 U. N. Convention on the Law of the Sea, Dec. 10, 1982, art. 45. 30 UNCLOS, art. 19. 31 Ibid, 19 (2).

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(d) any act of propaganda aimed at affecting the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft; (f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention; (i) any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; (l) any other activity not having a direct bearing on passage.

There is perhaps a relevant exception in Article 19 that states that any threat or use of force against the coastal state constitutes a prejudicial activities and it might be argued that the shipment of WMD between states or non-state actors who desire to use them against the coastal state is a prejudicial threat against the coastal state's sovereignty. As such, the transit would be “non-innocent.” Taken a bit further, this reasoning may likewise be extended to characterizing WMD transiting equivalent to the use of armed force "against the territorial integrity or political independence of any State . . ." which would be a violation of the United Nations Charter.

To make a compelling case under international law that a vessel was not entitled to innocent passage under UNCLOS, the coastal state would require proof that the transport constitutes a "threat . . . of force" – not a generic threat that may exist sometime in the future but a very specific and immediate threat against that coastal state to justify action. The specific cargo, however, might pose a problem here since the suspected WMD cargo is very often merely components, parts or dual use items. Additionally, at least early in PSI’s development, there was concern over just how many interdictions would actually occur, whether or not there would be some “intelligence benchmark” to justify an interdiction or whether any and all mere hunches would trigger an interdiction. As such, in order to detect, stop and interdict an illegal shipment a coastal state may need to stop and search many ships a large majority of them able to claim their

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innocent passage was infringed upon. There is also a limitation found in Article 24 that imposes a duty on a coastal state from hampering the innocent passage of foreign ships or from “imposing requirements . . . which have the practical effect of denying or impairing the right of innocent passage.”32 In order to prevent non-innocent passage by using random interdictions, the coastal state would have to hamper the truly innocent passage of a large number of foreign vessels

Additionally, there must be proof that the shipment constitutes a threat to the “sovereignty, territorial integrity or political independence” of the coastal state.33 Again, it may be difficult to make a compelling case that the mere transport of weapons of mass destruction constitutes an actual and immediate threat to sovereignty unless there is a clear indication that the weapons are to be used against the coastal state. If there is justifiable concern based on intelligence or other information that the cargo consists of weapons that are indeed to be used against a coastal state, this probably moves the question beyond PSI as a peacetime activity and actions against the vessels will be judged under international humanitarian law (international law of armed conflict).34

However, UNCLOS Article 25 states that, “The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.” Article 25 also provides two scenarios to help clarify what actions a coastal state may take. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.35

32 UNCLOS art. 24, paras. 1, 1(a). 33 See, Carley, Patricia. Self-Determination: Sovereignty, Territorial Integrity, and the Right to Secession, Peaceworks 7, United States Institute of Peace, 1996. 34 Bunn, George. “International Law and the Use of Force in Peacetime: Do U.S. Ships Have to Take the First Hit?”, Naval War College Review, May-June 1986. 35 UNCLOS art. 25, para. 2.

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This paragraph is interpreted to mean that a coastal state has the right to intercept inbound ships and at a minimum, check for documentation. A more expansive interpretation would hold that the coastal state has the right to perform a limited search. Article 25, paragraph 3 goes further and permits the temporary suspension of the right of innocent passage in predetermined areas of the territorial sea “if such suspension is essential for the protection of its security, including weapons exercises.”36 There is a notice requirement that the suspension be duly published and that the suspension be universal and not discriminate among foreign ships. The suspension of the right of innocent passage is therefore contingent on several conditions: the suspension must be non-discriminatory; it must be temporary; it “may only cover specified areas of the territorial sea;” it must “be essential for [the] protection of coastal State security, including weapons exercises;” and, it must be published before becoming effective.37 Using this construct, the problem with PSI interdictions is that they would appear to fail a number of the conditions needed to suspend the right of innocent passage. PSI maritime interdiction operations do target specific states, ships and other actors of concern since specific cargos are targeted as suspicious. Furthermore, suspension will not be limited to a specific area within the territorial waters of a coastal state. Finally and perhaps more importantly, PSI interdictions require the flexibility to cross jurisdictions and will only be effective when an adversary does not know when or where the interception may take place. Publishing where and when the suspension will take place would certainly undermine its effectiveness.

36 UNCLOS, art. 25, para 3. 37 Ngantcha, Francis. The Right of Innocent Passage and the Evolution of the International Law of the Sea: The Current Regime of 'Free' Navigation in Coastal Waters of Third States, Bloomsbury Publishing, 1990, pp. 165-166.

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UNCLOS Article 27 provides some relief in the form of codifying the protective principle for coastal states territorial waters. This article allows a coastal state to exercise criminal jurisdiction on board a foreign ship in the territorial sea “if the consequences of the crime extend to the coastal State” or “if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea.” Therefore, in order for Article 27 to apply, the coastal state must first criminalize the conduct and then exercise jurisdiction within its territorial waters based on the illegal conduct. Again, criminalizing WMD proliferation activities is a key component of Statement of Interdiction Principles and an essential element of the political commitment each state makes in endorsing the principles. In sum, criminalization triggering Article 27 can be accomplished by having the member states’ governmental process determine and put into law that the transport of WMD and its associated material constitute a threat to its security thus justifying criminal sanctions against those that transport it.

7.4 Freedom of Navigation

The concept of freedom of navigation is in many respects a negative right under international law; the right of a state to claim that ships flying its flag should not be interfered with by other states. Freedom of Navigation is guaranteed in conventional international law through UNCLOS article 87(1)(a) and also through customary international law. However, scholars argue that the conventional international law established by UNCLOS makes the need to rely on customary international law less pressing,

… a widely accepted Convention should, over time, reduce its stressors, for States will be far less likely to make or enforce ocean claims beyond those permitted by its provisions. After all, treaties are more stable than customary international law, which is often vague, difficult to enforce, and malleable. The rules are easier to identify than with customary

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law's constant evolution through claim and counterclaim. (Indeed, the U.S. position that the LOS Convention represents customary law has been questioned by some nations.)38

Freedom of navigation is the bedrock of maritime law and since PSI was envisioned to do more than apply to the territorial waters of member states, understanding the law of the high seas is critical to understanding the breadth and scope of PSI. To understand freedom of navigation on the high seas and its relationship to PSI, it is first important to understand the basic principles of UNCLOS. UNCLOS Article 88 establishes the peaceful purposes standard that states, “The high seas shall be reserved for peaceful purposes.” The peaceful purposes requirement when read in conjunction with UNCLOS Article 301 establishes the link with the United Nations Charter and the renunciation of the use or threat of force essentially guarantees freedom of navigation. Article 301 states:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.39

Therefore, it follows that to be accorded freedom of navigation on the high seas a states’ intent must be for peaceful purposes.40 The question then arises as to whether or not the transshipping of weapons of mass destruction or their components and/or precursors as well as their delivery systems is or is not in line with the peaceful purposes requirement. If not, then the protection and guarantees of freedom of navigation is arguably lost. Furthermore, as with almost

38 Mandsager, Dennis. “The U.S. Freedom of Navigation Program: Policy, Procedure, and Future”, International Law Studies, Vol. 72, November 1997, p. 120. 39 UNCLOS, Art. 301. 40 Note, however, some argue UNCLOS 301 is being used to circumvent the intent of the law of sea and use that provision to expand rights witin the exclusive economic zones of states (EEZ). See, Pedrozo, Raul. “A Response to Cartner’s and Gold’s Commentary on “Is it Time for the United States to Join the Law of the Sea Convention?”, Journal of Maritime Law & Commerce, Vol. 42, No. 4, October 2011, pp. 487-510.

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all international conventional law, there is a “good faith” requirement in UNCLOS.41 If proliferating WMD constitutes an abuse of freedom of navigation, a state might be prevented from asserting an Article 87 defense based on freedom of the high seas since it failed to act in good faith. Article 87, regarding freedom of the high seas, states:42

1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) Freedom of navigation; (b) Freedom of overflight; (c) Freedom to lay submarine cables and pipelines, subject to Part VI; (d) Freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) Freedom of fishing, subject to the conditions laid down in section 2; (f) Freedom of scientific research, subject to Parts VI and XIII.

2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

7.5 Enforcement

The exclusive enforcement relationship between a flag state and its vessels on the high seas is long recognized by international law. UNCLOS Article 92 reserves to the flag state jurisdiction over ships flying its flags on the high seas. Flag states may waive their exclusive jurisdiction and grant it to other states if they desire and this is one method to expedite PSI

41 UNCLOS, Art. 300, "States Parties shall fulfill in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” 42 UNCLOSE, Art. 87.

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interdictions. Indeed, this principle underlies the ship boarding agreements between the United States and contracting states, primarily states providing flags of convenience services. In the absence of a waiver of exclusive jurisdiction by a flag state, however, UNCLOS Article 110 prohibits any ship, including a warship, from interfering with a vessels freedom of navigation on the high seas. As such, interception, stopping and boarding would be counter to UNCLOS. There are, however, a few specific exceptions to this default rule of freedom of navigation on the high seas:43

• A ship is a legitimate target and can be boarded if it is conducting any activity that that would rise to the level of peremptory norms under international law. These Jus Cogens activities are piracy, slave trade, or unauthorized broadcasting and confer universal jurisdiction on any state that discovers them. • If a ship is a stateless vessel, is without nationality, or is flying conflicting flags thereby creating a legitimate question about its nationality, it may be boarded. • If the target vessel is the same nationality as the warship, it may also be stopped and boarded.

These exceptions provide the ground rules for PSI interdictions, and for example, did form the underlying legal basis for the interdiction of the So San since its flag was in question.44 However, absent one of these exceptions, freedom of navigation is the default position under international law and the interception or interdiction of a vessel on high seas would not be justified absent an immediate and obvious threat.

Contiguous zones, another juridically defined area of state interest short of the high seas identified in UNCLOS also needs explanation. The Statement of Interdiction Principles calls upon member states to interdict vessels in their contiguous zones where illicit WMD trafficking

43 Wolfrum, Rüdiger. “Statement By President Of The International Tribunal For The Law Of The Sea”, International Tribunal For The Law Of The Sea, May 27, 2014, p. 10. 44 Neff, Robert. “Flags That Hide the Dirty Truth”, Asia Times, April 19, 2007.

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is suspected.45 Contiguous zones extend from the outer edge of the territorial sea to up to twenty-four nautical miles from the coastline and are areas where a state can exert limited control for the purpose of preventing or punishing “infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea”.46 However, unlike the territorial sea, there is no standard rule for resolving conflicts that arise in contiguous zones and the states in question must negotiate their own compromise. The United States invoked a contiguous zone out to twenty-four nautical miles on 24 September 1999.47 Yet, any interception or interdiction of foreign vessels in the contiguous zone without the consent of the flag state is almost certainly illegal since freedom of navigation applies, as contiguous zones are not part of the territorial waters of a coastal state. There is a minor exception to this where a state acts in order to “prevent [and punish] infringement[s] of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial sea.”48 In these cases, a state may use measures necessary within the contiguous zone to prevent and punish infringements. The problem for conducting interdictions under this exception where WMD materials are concerned is that the transiting of WMD materials probably does not satisfy any of the above exceptions unless there were other factors involved such as dangerous safety concerns such as a radiation leak.

Similarly, in exclusive economic zones (EEZs), a coastal state enjoys sovereign rights over living and non-living natural resources and may exercise jurisdiction with regard to (1) “artificial islands, installations, and structures,” (2) “marine scientific research,” and (3) “the protection and preservation of the marine environment.”49 In exercising these rights, a state must do so with “due regard to the rights and duties of other States” which certainly includes the right of freedom of navigation.

45 PSI Statement of Interdiction Principles, Subparagraph 4(d). 46 Gore, Al. “Extension of Federal Enforcement Zone in U.S. Coastal Waters Will Help Prevent Violations of Environmental, Customs, or Immigration Laws”, Office of the Vice President, The White House, September 2, 1999. 47 Ibid. 48 UNCLOS, Art. 33. 49 UNCLOS, art. 56, paras. 1(b)(i)- (iii).

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Therefore, attempting to justify and interdiction based solely on WMD transshipping through a coastal states contiguous zone or exclusive economic zone under intentional law would be at a minimum suspect and open to legal challenge and at the extreme a violation of law of the seas international law. To summarize, absent other compelling reasons based on a specific case at the time, the existence of WMD or other ultra-hazardous materials alone would not justify an interdiction in a contiguous zone or exclusive economic zone. However, considering the nature of WMD and the dangers involved in transshipping and/or smuggling them across borders on land, at sea and in the air, scenarios can certainly be envisioned necessitating interception consistent with international law.50

7.6 Legal Arguments in Favor of PSI Action

There are significant legal arguments that mitigate against innocent passage and freedom of navigation and may, in and of themselves, provide enough legal authority to sanction PSI interdictions. There are three general lines of legal reasoning to support this assertion: self- defense; United Nations Security Council authorization; and establishing a peremptory norm under customary international law. The place to begin is with the United Nations Charter and its unambiguous prohibition on the threat or use of force. Article 2(4) states:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.51

Of course, there is one key exception to this clear statement on the threat or use of force. No state relinquishes its right to self-defense. Article 51 is quite clear:

50 See, Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft, Congressional Research Service, RL32097, October 1, 2003. 51 UN Charter, Art. 2(4).

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Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain inter-national peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.52

It can be argued that PSI represents an effort of collective self-defense fully sanctioned by the United Nations Charter and PSI’s own statement of interdiction principles make it clear that all activities will be in compliance with domestic and international law, which certainly includes the United Nations Charter. However, read quite literally, Article 51 requires collective action “only after an armed attack occurs.”53 This runs counter to PSI’s originating concept that PSI is peacetime only activity.54 Certainly there are possible arguments for when an armed attack occurred, for example, one could argue the trigger for collective self-defense was September 11, 2001 or the 7-7 London attacks. The problem with this line of reasoning is that September 11th – or for that matter the wide range of terrorist attacks that have occurred over the past decade – was not a WMD attack, did not come from a state sanctioned by a United Nations Security Council resolution and cannot be linked to any WMD program but for a possible tangential connection between al Qaeda and supporters of A.Q. Khan.

There may be United Nations authority for more wide-ranging PSI interdictions. When the United Nations Security Council adopted Resolution 1540 (UNSCR 1540) in 2004, it mandated closer attention to how states self-police their proliferation prevention laws and

52 Ibid, Art. 51. 53 Ibid, emphasis by the author. 54 For an interesting discussion on the Japan’s limitations in participating in PSI during peacetime, see, Lai, David. “Great Power Peace and Stability in Asia: China’s Emerging Role”, in Gupta, Amit (ed.). Strategic Stability in Asia, Routledge, 2016, Ch. 1.

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regulations.55 States were called on to review their policies and assess how well their procedures would prevent the illegal transfer of WMD to actors such as terrorists.56 UNSCR 1540 also enjoined all states “to take cooperative action” to prevent proliferation of WMD, “their means of delivery, and related materials.”57

UNSCR 1540 may call for collective action and recognizes WMD proliferation as “a threat to international peace and security” but is stops well short of validating under international law all the types of interdiction activities envisioned by PSI advocates. In the opinion of many such as states of the Non-Aligned Movement, a United Nations Security Council Resolution that builds on 1540 would be needed to sanction broader PSI interdiction actions, especially interdictions that occur on the high seas and do not fall under one of the accepted exceptions.

In the aftermath of the embarrassment of the So San, a number of international security analysts asked the question, “How can future So San’s be avoided?” In other words, what is the end state and what are the pieces of the puzzle that start today and will lead to something enduring and robust in the future. The answer was surprisingly simple; take many small steps over time that lead to the development of a peremptory norm, a Jus Cogens for combating WMD proliferation. If one looks at proliferation prevention during the Bush years, many of the small steps can be seen: PSI, UNSCR 1540, the Global Initiative to Combat Nuclear Terrorism, enhanced nonproliferation engagement and even the counterproliferation effort to build partner capacity within key regions to fight proliferation. However, with PSI standing at 105 member states, even with a majority of the world standing with PSI, that is a long way from establishing a recognized peremptory norm accepted and mandated by customary international law.

55 Stewart, Ian J. and Rajiv Nayan. 1540: 10 years on: Opportunities, Challenges and Effective Practices for the Resolution’s Implementation, Centre for Science and Security Studies, King College, CSSS Occasional Papers, January 2014, pp. 15-17, . 56 Ibid, 16-17. 57 Allen, Craig H. Maritime Counterproliferation Operations and the Rule of Law, Praeger Security International, 2007, p. 202.

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7.7 Is PSI Legal?

PSI as a set of like-minded states dedicated to taking steps to prevent WMD proliferation is unquestionably legal and condoned under international law. 58 Indeed, United Nations General Secretary Kofi Annan specifically endorsed it and applauded the efforts of the PSI to “fill a gap in our defenses.”59 Under international law, PSI legality is strongest when an interdiction occurs within the territorial waters of a coastal state, when one of the exceptions to freedom of navigation is satisfied, or when a flag state waives its exclusive jurisdiction in favor of another state. PSI legality is at its weakest when an interdiction occurs on the high seas based solely on intelligence and not in accordance with established customary or conventional international law. One way that PSI members are strengthening their legal argument is by executing a wide array of mutual ship boarding agreements especially with countries whose ships flying its flag traditionally have been used for proliferation. These agreements codify the relationship between the flag states and PSI member states who may have capabilities and resources better arrayed to conduct an interdiction.

58 Annan, Kofi. “A Global Strategy for Fighting Terrorism,” The Hindu, March 12, 2005, . 59 The Proliferation Security Initiative (PSI), The State Department, Bureau of Nonproliferation, May 26, 2005, .

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Chapter 8: PSI and Other Approaches to Proliferation Prevention

8.1 Targeted Financial Measures

Disrupting the financial flows that fuel proliferation is a powerful tool the international community developed with growing sophistication during the Bush administration. Routine coordination between security agencies and finance ministries became an imperative as disrupting financial flows imposed costs on proliferators and slowed down vertical and horizontal proliferation efforts. Like terrorists, proliferators require access to the global financial system, and routinely abuse this system to bankroll their activities.1 Institutions and individuals enabling this abuse are subject to pressure and sanctions that, if properly targeted, can impede the ability of proliferators to operate. It is important to distinguish these measures, which are directed at individuals, key regime members from states of concern, front companies, and financial institutions, from more traditional sanctions regimes.

Targeting financial transactions supporting proliferation suggested that such measures could be effective in exposing and complicating the WMD activities of states of concern, and even influence their policies. The government of North Korea, for example, was clearly surprised at the disruptive effects of actions taken against a Macao-based bank used by Pyongyang to support illicit activities. The designation, in September 2005, of Banco Delta Asia (BDA) as a “primary money laundering concern” led the bank to freeze $25 million in North Korean assets.2 More consequentially, it also led a number of financial institutions to curtail or

1 Rademaker, Stephen G. “Tackling the Hard Cases in Nuclear Proliferation”, Acting Assistant Secretary, International Security and Nonproliferation, remarks to the Baltimore World Affairs Council, Baltimore, Maryland, US Department of State, March 27, 2006, . 2 “Treasury Designates Banco Delta Asia as Primary Money Laundering Concern under USA PATRIOT Act”, US Department of Treasury, JS-2720, September 15, 2005, .

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terminate business with both BDA and the regime in Pyongyang. This targeted financial measure ultimately created leverage in the Six Party Talks, as US negotiators were able to use the promise to lift the designation against BDA and work to release the funds as a bargaining chip in reaching the denuclearization agreement announced in February 2007.3 Combined with efforts such as PSI, targeted financial measures would not only hit proliferators and the means of conducting illicit activities in transit, but by investigating those financial flows, other proliferators and how they operate and who were the “key nodes” would become apparent. These revelations would thus inform intelligence collection and interdiction efforts thereby making proliferation activities more visible, trackable and ultimately, more vulnerable.4

Both unilateral and multilateral actions and authorities underpinned the increased use of targeted financial measures. In the United States, Executive Order 13382, issued in June 2005, was designed to freeze proliferators’ assets that come under US jurisdiction and deny proliferators access to the US financial system.5 As such, thirty-five entities and three individuals were designated for their links to WMD-related activities in Syria, North Korea, and Iran. The United States expanded this list in October 2007, designating a number of Iranian individuals and entities, including two state-owned banks (Melli and Mellat), the Islamic Revolutionary Guard Corps (IRGC) and the Ministry of Defense and Armed Forces Logistics.6 Two additional entities, Bank Saderat and the Quds Force – the foreign operations arm of the IRGC – were designated under a different executive order focused on support to terrorism.7 Even through unilateral actions, the United States’ realized that strong sanctions measures would

3 Lague, David and Donald Greenlees. “Squeeze on Banco Delta Asia hit North Korea where it hurt”, International Herald Tribune, January 18, 2007. 4 Schreier, Fred. WMD Proliferation: Reforming the Security Sector to Meet the Threat, Potomac Books, 2009, Chapter 12, “The Modern Security Sector”. 5 “Executive Order 13382—Blocking Property of Weapons of Mass Destruction Proliferators and Their Supporters, Federal Register, Vol. 70, No. 126, July 1, 2005. 6 “Fact Sheet: Designation of Iranian Entities and Individuals for Proliferation Activities and Support for Terrorism”, US Department of Treasury, October 25, 2007, < https://www.treasury.gov/press-center/press- releases/Pages/hp644.aspx>. 7 “U.S., Europe at odds over airline backed by Iran's Revolutionary Guard”, Chicago Tribune, November 2, 2016, .

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have a global impact, given the central role of the dollar and US institutions in the international financial system. At the same time, the continued effectiveness of US financial measures required careful, selective application to avoid generating a backlash in the broader international community aimed at reducing reliance on US financial instruments.

What the Bush administration came to understand was that to achieve wider and more lasting effects, an organized and sustained international response targeting proliferation activities and their finances would be required. Increasingly, as finance ministries around the world became sensitized to the problem, due in no small part to the M/V So San and A.Q. Khan developments, multilateral actions acting in concert with United States’ efforts emerged. Four United Nations Security Council resolutions adopted beginning in 2006 provided the basis for designating and freezing the assets of entities and individuals linked to the WMD programs of North Korea and Iran.8 The European Union (EU) enacted two rounds of its own sanctions, expanding the list of entities and individuals cited by the United Nations and adopting more far- reaching measures to limit arms sales and travel by Iranian officials.9

Additionally, the concerted US effort to increase international financial and economic pressure on the Iranian leadership – by sharing information about Tehran’s abuse of the global financial system with governments, publics, and private sector leaders – started to have an impact and due to some success, expanded the “name-and-shame” tactics. For example, in October 2007 the Financial Action Task Force (FATF), a group of thirty-four states created by the G7 to combat money laundering and financing of terrorism and proliferation, advised financial institutions of its member states to consider the risks in doing business with Iran and adopted guidelines for member states to follow in implementing the financial measures in

8 Davenport, Kelsey. “UN Security Council Resolutions on North Korea”, Arms Control Association, updated March 2016, . 9 Portela, Clara. “The EU's evolving responses to nuclear proliferation crises: from incentives to sanctions”, EU non-proliferation paper, No. 46, SIPRI, July 2015.

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UNSCR 1737.10 These actions to advance implementation of Security Council resolutions were reinforced just one week later by G7 finance ministers.11

While implementation of United Nations and European Union measures was and remains today uneven, by many accounts financial measures directed at Iran had and continue to have an impact. A growing number of banks were unwilling to conduct business with Tehran. According to US officials, foreign-based branches and subsidiaries of state-owned banks were increasingly isolated, with a significant drop in foreign investment, particularly in the energy sector where Iran needs overseas partners to develop its oil reserves. As characterized by Fareed Mohamedi from the US Institute for Peace:

Misuse of oil revenues has also caused long term-economic problems. After he was first elected in 2005, former President Mahmoud Ahmadinejad embarked on a populist spending program encouraged by higher oil prices. But his plan overcommitted the government to support social welfare, which Tehran could not afford due to sanctions and, later, the drop in oil prices in 2014. Iran had built up its foreign exchange because of higher oil prices over the past decade, but portions of the reserves were impounded by foreign countries as part of the sanctions regime.

When President Hassan Rouhani took office in 2013, he prioritized reforming the oil and gas sector. He appointed Bijan Zanganeh as his oil minister. Zanganeh, who previously held the post under reformist president Mohammad Khatami, claimed that “the problem we are facing now in the petroleum industry is not finance, but management problems.” Zanganeh and Rouhani had some success reforming poor management in the oil industry. But by 2015, international sanctions still restricted the industry from reaching its full potential. United States measures announced in October 2007 appear to be complicating new oil projects by targeting major oil-

10 Levett, Matthew. “The Iran Primer”, US Institute for Peace, 2010, . 11 “Joint Testimony Daniel Glaser, Deputy Assistant Secretary for Terrorist Financing and Financial Crimes”, US Department of Treasury, April 18, 2007, < https://www.treasury.gov/press-center/press-releases/Pages/hp361.aspx>.

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field engineering firms controlled by government entities such as the IRGC. Oil firms in Russia, China, and Europe now find it difficult to move forward with development projects. The government of France has asked its largest companies not to bid for projects in Iran.12

It is uncertain how effective targeted financial measures directed at Iran ultimately will be but as Mohamedi’s quote above demonstrates, once in place, financial actions including sanctions can have a lasting impact on the broader goals of a regime beyond punishing for illicit proliferation activities. The November 2007 National Intelligence Estimate on Iran’s nuclear intentions and capabilities suggested that international pressure and scrutiny may influence Iranian decision making, and that proved to be accurate.13 As such, the expansion of targeted financial sanctions proved an effective instrument in shaping Tehran’s calculus on balancing proliferation and WMD acquisition objectives with broader interests such as oil revenue and infrastructure development. At the same time, the effect of financial measures was to some degree for a time lessened by high oil revenues and steps taken to limit the impact of sanctions on the regime and the economy. Even taking these uncertainties into account, the emergence in recent years of targeted financial measures directed at proliferators – and the clear demonstration that they can raise significantly the cost of engaging in illicit activities – sends a strong signal that the international community is prepared to act collectively against those who would abuse the global financial system in pursuit of the most destructive weapons.

8.2 Banco Delta Asia

On September 12, 2005, the United States Treasury Department designated Banco Delta Asia (BDA), a bank in the Macau Special Administrative Region of China, an “institution of

12 Mohamedi, Fareed. “Iran Primer”, US Institute for Peace, 2010, . 13 See, Treverton, Gregory F. CIA Support to Policymakers: The 2007 National Intelligence Estimate on Iran’s Nuclear Intentions and Capabilities, RAND Corporation, May 2013, < https://www.cia.gov/library/center-for-the- study-of-intelligence/csi-publications/books-and-monographs/csi-intelligence-and-policy-monographs/pdfs/support- to-policymakers-2007-nie.pdf>.

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primary money laundering concern,” effectively freezing $25 million in North Korean money held at the bank.14 Stuart Levey, the Treasury’s Under Secretary for Terrorism and Financial Intelligence said “we are working to protect US financial institutions while warning the global community of the illicit financial threat posed by Banco Delta Asia.”15 The illegal transactions that Banco Delta Asia was accused of were connected to its dealings with accounts owned by North Korean entities. Central to the case was whether the Treasury Department action was a purely regulatory matter, or whether it was motivated by political maneuverings to increase pressure on North Korea in connection with ongoing negotiations.

Regardless of the intentions of the United States and despite a lack of direct links to the Six Party negotiations, the BDA issue quickly rose to prominence in the talks between North Korea and the United States. A few months after Treasury’s initial designation, North Korea left the Six-Party Talks which aimed at eliminating the country’s nuclear weapons program, citing the dispute over BDA.16 The North Korean delegation made “the return of the money” and opening its main conduit to the international banking system a condition of their compliance with any agreements made at the Talks.17 Sensing an advantage in the negotiations, the United States agreed to return the money frozen in BDA accounts to North Korea but found that making good on this promise was far from easily. Three months passed before the funds were transferred, causing North Korea to miss a deadline on shutting down its nuclear facilities and casting doubt over the permanence of the hard-won diplomatic breakthrough.18 Targeting BDA as a financial

14 Federal Register, 31 CFR Part 103, Vol. 70, No. 181, September 20, 2005, p. 55216. 15 “Treasury Designates Banco Delta Asia as Primary Money Laundering Concern under USA PATRIOT Act”, Press Release, US Department of the Treasury, JS-2720, September 15, 2005, . 16 Hall, Kevin G. “Money laundering allegations by U.S. false, report says,” McClatchy Newspapers, April 16, 2007, . 17 Associated Press. “Russia says U.S. asked for help to resolve nuclear impasse over NKorean bank funds,” International Herald Tribune, June 5, 2007, . 18 “Treasury Designates Banco Delta Asia as Primary Money Laundering Concern under USA PATRIOT Act”, United States Department of the Treasury, September 15, 2005, .

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target due to its use by North Korean leadership began as a supposedly regulatory matter ended up threatening more important US national security interests and demonstrated the difficulties that can arise when sanctioning a country with which negotiations are being held. The BDA case demonstrated the difficulties the United States encountered in returning the money, the legitimacy of United States allegations, the inconsistencies in the official US position, and the implications for future proliferation-related financial targeting.

8.3 Statutory Origins for Treasury Department Action

The actions taken by the Treasury Department were based on additions to existing US Code provisions mandated by the USA PATRIOT Act; Public Law 107-56, October 26, 2001. Enacted just weeks after the World Trade Center attacks of September 11, the act was intended to enable the United States to deal with potential terrorist threats, as illustrated by its full name: the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” However, as with many parts of the PATRIOT Act, the broad powers granted to the Executive were not restricted to combating terrorism, but could also be applied to a range of unrelated illicit activities. The actions against BDA fell in this category as evidenced by the fact that the Treasury Department did not cite any kind of links to terrorism or terrorist groups when it ruled against BDA.

Section 311 of the PATRIOT Act entitled, “Special measures for jurisdictions, financial institutions, or international transactions of primary money laundering concern,” added section

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5318A (of the same name) to the Bank Secrecy Act.19 This section granted the Director of the Financial Crimes Enforcement Network (“FinCEN”), in the Treasury Department, the authority to find that a foreign jurisdiction, institution, class of transaction, or type of account is a “primary money laundering concern.”20 The Director, to whom the Secretary of the Treasury’s authority to administer the Bank Secrecy Act has been delegated, must first confer with both the Secretary of State and the Attorney General before making the finding. Furthermore, the Director is required to consider jurisdictional factors, such as “the extent to which that jurisdiction is characterized as an offshore banking or secrecy haven by credible international organizations or multilateral expert groups,” and institutional factors, such as “the extent to which such financial institutions, transactions, or types of accounts are used to facilitate or promote money laundering in or through the jurisdiction.”21

Once the Director issues such a finding, he is able to choose from five special measures to address the problem. When deciding on which measures to implement, the Director is required to consult with Chairman of the Federal Reserve System, the Securities and Exchange Commission, the Commodity Futures Trading Commission, the National Credit Union administration Board, any other agencies that the Secretary of the Treasury deems necessary, and again with the Secretary of State. Also, at this step in the process, the Director is required to take into account four considerations: 1) whether other countries or groups have taken or will take

19 According to the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN), The Bank Secrecy Act is defined as: “The Currency and Foreign Transactions Reporting Act of 1970 (which legislative framework is commonly referred to as the “Bank Secrecy Act” or “BSA”) requires U.S. financial institutions to assist U.S. government agencies to detect and prevent money laundering. Specifically, the act requires financial institutions to keep records of cash purchases of negotiable instruments, file reports of cash transactions exceeding $10,000 (daily aggregate amount), and to report suspicious activity that might signify money laundering, tax evasion, or other criminal activities. It was passed by the Congress of the United States in 1970. The BSA is sometimes referred to as an “anti-money laundering” law (“AML”) or jointly as “BSA/AML.” Several AML acts, including provisions in Title III of the USA PATRIOT Act of 2001, have been enacted up to the present to amend the BSA. (See 31 USC 5311-5330 and 31 CFR Chapter X [formerly 31 CFR Part 103]).” . 20 Ibid. 21 The USA PATRIOT Act. Public Law 107-56, October 26, 2001, 115 STAT 298-303, .

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similar actions; 2) whether the measures would adversely affect institutions operating in the United States; 3) whether the actions would hurt the international system or the legitimate activities of the entity in question; and perhaps most importantly, 4) “the effect of the action on United States national security and foreign policy.”22

Of the five special measures, the first four do not require specific regulations, but may also be imposed by “order, or otherwise as permitted by law.” The first measure requires domestic financial institutions to keep records and file reports on transactions with the jurisdiction or financial institution named in the finding.23 The second requires domestic institutions to gather information about foreigners with accounts that involve the entity. The third requires domestic institutions to keep any information on customers using payable-through accounts that are connected to the entity, and the fourth measure has the same requirements for correspondent accounts.24 These four measures are generally meant to be temporary, as indicated by the stipulation that they only remain in effect for 120 days without a subsequent extension.25

The fifth special measure, however, has a much greater impact on the “primary money laundering concern,” and thus may only be imposed by regulation. This measure allows the Director of FinCEN to “prohibit, or impose conditions upon, the opening or maintaining in the United States of [an account] by any domestic financial institution or domestic financial agency for or on behalf of a foreign banking institution,” if the account involves a jurisdiction or institution that has been designated a money laundering concern.26 At its strongest, this measure places what is, in effect, a financial embargo on the entity named. Not only can it not do

22 The USA PATRIOT Act, p. 299. 23 “Definitions of Transmittal of Funds and Funds Transfer”, Financial Crimes Enforcement Network, US Department of Treasury, 31 CFR Part 1010, RIN 1506-AB20, Federal Register Volume 78, Number 233, Wednesday, December 4, 2013. 24 Ibid. 25 The USA PATRIOT Act, p. 300-301. 26 “USA PATRIOT Act”, FinCEN, US Department of Treasury, undated, .

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business in the United States, but it is also prohibited from doing business with any other entity that operates in the United States Since the United States dominates the world’s financial system, the measure can be crippling or lethal to foreign financial entities.27

To date, Treasury has issued sixteen findings under section 311 of the PATRIOT Act, with the BDA finding being the last. Of those sixteen, Treasury has gone on to give final rulings on six entities, all of which have involved the fifth special measure prohibitions. In eight of the other cases, the findings were officially withdrawn after the accused parties addressed the concerns identified and made sufficient adjustments in their financial practices. It is notable that none of the six cases that were given final rulings has had the rulings withdrawn, and that of the eight rescinded findings, six of them occurred very recently – on April 10, 2008.28

8.4 Impact on United States – North Korea Relations

When the US Treasury designated BDA a “primary money laundering concern” in September 2005, it used the language in the finding to frame the action as a purely regulatory measure against BDA’s knowingly illicit actions and not as a sanction against North Korea or in connection to the Six Party Talks. The action effectively froze $25 million in North Korean funds at BDA and cut the DPRK off from much of the international financial system.29 This happened because other banks felt threatened by the Treasury’s actions and would not transfer money that was the target of United States sanctions, with many even ceasing business relations with the DPRK entirely.30 Despite this, or perhaps not yet realizing the implications of the finding, North Korea agreed to the Joint Statement during the Six-Party Talks just one week

27 The USA PATRIOT Act, p. 301-302. 28 “Section 311 Special Measures”, Financial Crimes Enforcement Network, US Department of the Treasury, . 29 Solomon, Jay and Neil King Jr. “How U.S. Used a Bank To Punish North Korea Nuclear Talks Are Said To Proceed, as Macau Frees Frozen Accounts”, Wall Street Journal, April 12, 2007. 30 Hall, Kevin G. “Money laundering allegations by U.S. false, report says”, McClatchy Newspapers, April 16, 2007, < http://www.mcclatchydc.com/latest-news/article24462799.html>.

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later, on September 19. The Statement was the first major breakthrough in denuclearization negotiations since the collapse of the 1994 Agreed Framework in 2002.31 However, the cooperation of the North Koreans was short-lived. Just months later, the DPRK abandoned the talks, citing the dispute over BDA.32

In an attempt to clarify the official United States position, the Treasury Department gave a briefing to a DPRK delegation on March 7, 2006. Officials tried to stress the supposedly non- political nature of the finding by saying that the “action against BDA was not intended as a sanction against North Korea and should be considered a matter completely separate from the Six-Party Talks, the ongoing negotiations on nuclear programs on the Korean Peninsula.”33 Despite these assurances, in January 2006, North Korea began a boycott of the Six-Party Talks which lasted until December, after it had conducted a successful nuclear test in October 2006. At that point, even banks in friendly countries such as Vietnam and China began refusing to do business with Pyongyang.34

After the nuclear test, North Korea returned to the negotiations. On February 13, 2007, the six countries in the talks reached an agreement to implement the “Joint Statement”, although the DPRK said it would not take any action until the $25 million was returned.35 Part of the Agreement was an implicit understanding that the United States would resolve the issue by returning the frozen money to North Korea.36 One potential sticking point remained: the DPRK

31 “Joint Statement of the Fourth Round of the Six-Party Talks, Beijing”, US Department of State, September 19, 2005, . 32 Hall, “Money laundering allegations by U.S. false, report says.” 33 “Treasury Briefs North Korea on U.S. Financial System Protections”, US Department of State, March 7, 2006, . 34 Nanto, Dick K and Emma Chanlett-Avery. “The North Korean Economy: Leverage and Policy Analysis,” Congressional Research Service Report for Congress, RL32493, March 4, 2008, . 35 “Russia says U.S. asked for help to resolve nuclear impasse over NKorean bank funds,” The International Herald Tribune, June 5, 2007. 36 Haggard, Stephen and Marcus Noland. “North Korea in 2007,” Asia Survey, January 2008, .

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insisted that the funds be transferred through the international financial system, thereby breaking the unofficial taboo that banks held on doing business with the country.37

Almost exactly one month later, on March 14, the ruling against BDA was finalized, prohibiting US financial institutions from opening or maintaining accounts for or on behalf of the bank.38 Days later, the United States gave an official announcement that it would free up the $25 million by April 14 to convince North Korea to adhere to a 60-day deadline in the Agreement, although the final rule against BDA was to remain in place.39 However, even though both the United States and authorities in Macau said on April 10 that the funds were available to North Korea, 40 the money was not immediately transferred.41

8.5 Difficulties Releasing the BDA $25 million

The transfer did not begin until two months later, on June 14.42 Before then, no banks would agree to transfer the money to North Korea because they were worried that by handling the sanctioned money they would be liable to the same Treasury Department actions as those used on BDA. As former State Department official David Asher testified before Congress, “North Korea was, in effect, frozen out of the international financial system as banks around the

37 Fifield, Anna. “North Korea may win back cash but not its reputation,” The Financial Times, May 17, 2007, . 38 “Treasury Finalizes Rule Against Banco Delta Asia. BDA Cut Off From U.S. Financial System”, Press Release HP-315, US Department of the Treasury, March 14, 2007, . 39 “Statement by DAS Glaser on the Disposition of DPRK-Related Funds Frozen at Banco Delta Asia”, Press Release HP-322, US Department of the Treasury, March 19, 2007, . 40 “Macau unblocks North Korean funds,” BBC News, April 10, 2007, . 41 “Statement on North Korean-Related Funds Frozen at Banco Delta Asia,” Press Release HP-344, US Department of the Treasury, April 10, 2007, . 42 “N Korea fund transfer under way,” BBC News, June 14, 2007, .

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world suspended business relations with it.”43 Even so, the DPRK would not simply take the money out in cash, but demanded that the United States wire the money through a bank, in order to convince banks that it was safe to resume business with the country.44

Scott Snyder of the Asia Foundation spelled out the North Korean concerns when he echoed Asher’s testimony by saying, “The really hostile act is that North Korea is now branded a criminal entity - banks can't and won't do business with North Korea.” He went on to point out the complications caused by the lack of distinction in the United States’ actions between the illegal money and the legal money that together made up the $25 million.45 The money was divided among fifty-two different account holders, which in itself complicated the transfer of assets. All account holders had to be verified and had to give their assent before the funds could be transferred.46 Colin McAskill, Chairman of Koryo Asia, an investment advisory firm buying a controlling stake in North Korea-based Daedong Credit Bank (the largest BDA account holder), objected to the transfer of the BDA funds. He said that about $7 million of the $25 million held at BDA was Daedong’s money and he objected to its being included with the other money or transferred to the North Korean government-linked bank account without Daedong’s consent.47 Ultimately, however, his concerns, as well as those of the other account-holders, were overlooked in order to extract the money from BDA.

As a result of the delay in the transfer, North Korea missed the April 14 deadline to shut down its reactor as stipulated in the February 13 Agreement, demanding that the money transfer

43 “Isolating Proliferators and Sponsors or Terror: The Use of Sanctions and the International Financial System to Change Regime Behavior,” Joint Hearing before the House of Representatives Committee on Foreign Affairs and the Committee on Financial Services, U.S. Government Printing Office, April 18, 2007, p. 66, . 44 Fifield, “North Korea may win back cash but not its reputation.” 45 Ibid. 46 “After the North Korea Nuclear Breakthrough: Compliance or Confrontation?”, Asia Briefing, International Crisis Group, No. 62, April 30, 2007, . 47 “U.S. official meets North Koreans over funds,” Reuters, March 27, 2007, .

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happen first. However, the United States did not object to the actions, instead letting the deadline pass without incident. Several weeks later, Condoleezza Rice even said, “We have been willing to step back and give some time for this to be resolved,” while acknowledging that the situation was “considerably more complicated than perhaps we had realized.”48

The United States originally believed the Bank of China would help transfer the money back to Pyongyang, but it refused, scaring off even more banks.49 The United States then turned to American banks such as Wachovia to help with the transfer, but made no progress with those attempts either.50 Peter Beck of the International Crisis Group said that the Treasury Department might have been unwilling to issue a legal waiver to any bank that would make the transfer, dissuading private banks from participating.51

On June 6, Yonhap News Agency reported that the United States might free BDA of the sanctions if certain BDA officials acknowledged wrongdoing and resigned.52 This suggests that the United States may have considered removing the official ruling against BDA, however, the cooperation of the bank was doubtful. Stanley Au, the owner of BDA, claimed that the bank had been cooperating with United States officials since 1994 and disputed the legitimacy of the United States allegations.53

48 “U.S. to give North Korea more time,” BBC News, May 1, 2007, . 49 Anna Fifield, “Comment and Analysis: Frozen,” The Financial Times, May 30, 2007, . 50 Tom Mitchell and Robin Kwong, “More banks shun Macao’s BDA,” The Financial Times, May 23, 2007, . 51 Lim Chang-Won, “Inter-Korean Talks End without Agreement,” Agence France Presse, June 1, 2007, . 52 “U.S. Might Ease Bank Sanctions in North Korea Nuclear Standoff,” NTI Global Security Newswire, June 6, 2007, . 53 Kevin G. Hall, “Bank owner disputes money-laundering allegations,” McClatchy Newspapers, May 16, 2007, .

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Eventually, the United States relied on help from the Russian government to resolve the issue.54 The United States arranged for the money to be transferred first to the Macau Monetary Authority, then to the US Federal Reserve, which sent it on to the Russian Central Bank. Once in the Russian banking system, the money was transferred to the Far East Commercial Bank in eastern Russia where North Korea has a dormant account. The American ambassador in Moscow, William J. Burns, allegedly gave Russia assurances that its financial institutions would not be punished by any anti-money laundering statutes or regulations.55 In addition, the Treasury’s final ruling only imposed prohibitions on “covered financial institutions,” which did not include central banks.56 This meant that the Federal Reserve was “not subject to U.S. laws barring commercial transactions involving illicit funds,” and was therefore able to take part in the transfer without breaking the law or risking penalties; the same applied to the central banks in the other countries involved.57 However, the involvement of the Federal Reserve was still controversial, and some Congressmen in the House Foreign Affairs Committee requested that the Government Accountability Office investigate “whether all U.S. official actions undertaken…are in keeping with the prohibitions regarding money laundering and counterfeiting as stipulated in the U.S. Criminal Code, Title 18, sections 1956 and 1957.”58

On June 14, 2007, media reports said that the transfer was under way, and by June 25, the DPRK had confirmed the successful transfer of the funds. North Korea subsequently said that the funds would be used for humanitarian purposes.59 Two days after the transfer began, the

54 Demetri Sevastopulo, “Republicans query deal on frozen N Korea funds,” The Financial Times, June 13, 2007, . 55 Steven R. Weisman, “The Ripples of Punishing One Bank,” The New York Times, July 3, 2007, . 56 Federal Register, 31 CFR Part 103, Vol. 72, No. 52, March 19, 2007, p. 12737. 57 Ibid. 58 “GOP Members Request GAO Evaluation of U.S. Efforts to Transfer Frozen Banks Funds to North Korea”, Press Release, House Committee on Foreign Affairs, June 12, 2007, . 59 “North Korea says its banking row with Washington resolved,” The International Herald Tribune, June 25, 2007, .

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North Koreans invited a delegation from the IAEA to Pyongyang to begin discussing the shutdown of the Yongbyon reactor as provided by in the February 13 Agreement, and just one month later, the IAEA confirmed the shutdown.60 The final ruling against BDA still remains in effect.

It is unclear whether the final ruling could be rescinded, or whether waivers could be issued to individual financial institutions. However, as noted earlier, none of the six cases with a final ruling, all of which invoked the fifth special measure, have had their rulings rescinded.61 The official also would not comment on the involvement of the Federal Reserve in the money transfer, or the alleged assurances given to Russia by the American ambassador.62

8.7 Inconsistencies in the United States’ Stance

In the March 7, 2006 briefing by the Treasury Department to a delegation of North Koreans, Daniel Glaser and other Treasury officials said that the action against BDA was purely regulatory and was not intended to influence ongoing negotiations or to serve as a sanction against North Korea.63 However, testifying before Congress on April 18, 2007, the former Senior Advisor for East Asian and Pacific Affairs at the Department of State and Coordinator of the North Korea Working Group, David Asher, said that the Illicit Activities Initiative (IAI) that started in 2002 were specifically designed to use financial tools, such as Section 311 of the PATRIOT Act, against North Korea. Asher stated, “We worked hand in glove with the Treasury Department to apply and plan to apply against North Korea, and after a time of deep research we

60 Ueno, Teruaki and Jalil Hamid, “North Korea nuclear talks eye goals after shutdown,” Reuters, July 18, 2007, . 61 “Section 311 Special Measures”, The United States Department of the Treasury, Financial Crimes Enforcement Network, . 62 “Transcript, Treasury Department Spokesman, Telephone interview by Ian Grant”, US Department of Treasury, August 2007. 63 “Treasury Briefs North Korea on U.S. Financial System Protections”, U.S. Department of State, March 7, 2006, http://usinfo.state.gov/eap/Archive/2006/Mar/08-685510.html

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came to conclude that one of the best spots was in Macau against Banco Delta Asia.” This directly contradicts the official Treasury Department position, as given to the DPRK, and to the public, though press releases. Asher reveals not only that North Korea was indeed the intended target, but also that BDA was carefully chosen for the explicit purpose of damaging North Korean interests.64

Asher went on to say that “Banco Delta was a symbolic target. We were trying to kill the chicken to scare the monkeys. And the monkeys were big Chinese banks doing business in North Korea...and we’re not talking about tens of millions, we’re talking hundreds of millions.” This statement is even more revealing since Asher implies that the actions against BDA were intended to threaten Chinese banks in order to coerce them into abandoning business in North Korea, leading to a loss of hundreds of millions of dollars for the DPRK. As such, it seem clear that the US Treasury used BDA as a tool to put more pressure on the Kim Jong Il government and the already weak economy of North Korea.65

64 “Isolating Proliferators and Sponsors or Terror: The Use of Sanctions and the International Financial System to Change Regime Behavior,” Joint Hearing before the House of Representatives Committee on Foreign Affairs and the Committee on Financial Services, pp. 63, 74. 65 For more perspective and a fuller appreciation of how the deal was viewed, see, Miller, David. “A Bungled Deal with North Korea”, National Review Online, April 13, 2007, reprinted on CBS News Online .

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8.8 BDA and the Lessons from Unintended Consequences

David Asher’s testimony suggested that the Treasury Department’s objective in imposing financial sanctions on BDA was to use it strategically to disadvantage North Korea. This renders moot the lessons about the importance of preventing secondary policy from accidentally harming more important political maneuvers. The Treasury Department and the State Department were coordinating their efforts against the DPRK to achieve the best possible outcome. While the result of the decisions they made (North Korea’s successful test of a nuclear bomb) may have been a failure, their efforts were not well coordinated.

A clear lesson to be learned from this case is derived from the unintended consequences of the inability of the United States to return North Korea’s money from the accounts in BDA in an expeditious manner. The implementation of the denuclearization Agreement was delayed, and its success put in jeopardy as a result of the self-inflicted inflexibility of United States policy when trying to remedy the situation quickly. Had the North Koreans demanded a complete withdrawal of the ruling in return for cooperation in disarmament talks, the restrictive sanctions may not have allowed the United States any room to maneuver. By grounding the sanctions in the section 311 rules, the Treasury inadvertently took steps that it could not undo, even in the face of greater national security interests. This suggests that if other sanctions regimes are more readily rescinded, they should be the considered first. When considering which measures to use against a money launderer, the Director of FinCEN should consider “the effect of the action on United States national security and foreign policy.”66 However, in this case, the Treasury Department only saw the benefit of excluding BDA and failed to anticipate the secondary effects of the sanctions with respect to the negotiations with North Korea.

The Treasury Department may not have considered these significant side effects and unintended consequences when it acted against BDA, and must learn to be more cautious in the

66 Federal Register, 31 CFR Part 103, Vol. 72, No. 52, March 19, 2007, p. 12731.

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future. The fact that it has not issued a final ruling under section 311 since the BDA ruling in March of 2007 may indicate Treasury’s newfound awareness of the problem. The difficult nature of undoing such measures means that a simple financial prohibition could have a profound impact on national security.67 More broadly, as PSI developed and grew during this same timeframe, calls for linking PSI with targeted FinCEN sanctions became commonplace. Indeed, PSI endorsees held meetings and break-out sessions to assess the feasibility of developing a financial component to the Initiative. However, several costs, including the costs associated with unintended consequences of financial action militated against moving ahead with the concept.

8.9 UNSCR 1540 and Other Initiatives

As previously mentioned, the Bush administration’s proliferation prevention strategy rested on three pillars: Counterproliferation to Combat WMD Use, Strengthened Nonproliferation to Combat WMD Proliferation, and Consequence Management to Respond to WMD Use. The three pillars were mutually supporting and were designed to be “…seamless elements of a comprehensive approach. Serving to integrate the pillars are four cross-cutting enabling functions that need to be pursued on a priority basis: intelligence collection and analysis on WMD, delivery systems, and related technologies; research and development to improve our ability to respond to evolving threats; bilateral and multilateral cooperation; and targeted strategies against hostile states and terrorists.”68

United Nations Security Council (UNSC) Resolution 1540 was a key component of the countering WMD strategy based on strengthening nonproliferation. UNSCR 1540 strengthened nonproliferation by focusing on prevention the transfer of WMD components and technology to

67 Heo, Uk, Terence Roehrig and Jungmin Seo (eds.). Korean Security in a Changing East Asia, Praeger Security International, 2007, pp. 83-86; 180-188. 68 National Strategy to Combat Weapons of Mass Destruction, The White House, January 1, 2003, .

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terrorists and represents an important element of international cooperation in countering weapons of mass destruction. The effort to garner support for UNSCR 1540 and ultimately it adoption followed traditional nonproliferation security approaches through United Nations action. Rather than a political initiative designed to marshal a coalition of the willing such as PSI, Resolution 1540 provides a universal framework for all states to develop and implement measures to prevent the proliferation of WMD. Adopted unanimously in April 2004, Resolution 1540 established for the first time binding obligations on United Nations member states to refrain from supporting by any means non-state actors seeking to produce or acquire WMD, to criminalize the proliferation of WMD to non-state actors, and to adopt and enforce effective domestic controls on WMD, their means of delivery, related materials, and means of financing proliferation activities.69 To raise awareness of UNSCR 1540 and oversee its implementation, the UNSC 1540 Committee was established. UNSCR 1673, adopted in April 2006, called for intensified efforts to implement Resolution 1540 and extended the mandate of the 1540 Committee through April 2008. 70

More than 140 states submitted initial reports on their steps or planned action to implement Resolution 1540. 71 Efforts expanded through regional outreach activities to encourage and assist the roughly 50 states – largely in Africa, the Caribbean, and the Pacific – that have did not submit an initial report. What became clear was that some states were able meet UNSCR 1540 obligations on their own or with only modest help while many countries had limited capacity to do so and in some cases, required significant assistance from the international community. In April 2006, the 1540 Committee identified several important gaps in the ability of states to implement fully Resolution 1540: accounting, physical protection, law enforcement,

69 United Nations Security Council Resolution 1540, S/RES/1540, United Nations, April 28, 2004, . 70 United Nations Security Council Resolution 1673, S/RES/1673, April 27, 2006, . 71 Bernstein, Paul I. International Partnerships to Combat Weapons of Mass Destruction, Occasional Paper 6, National Defense University Press, May 2008, pp. 12-13.

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border controls, export and trans-shipment controls, and financial controls.72 According to Paul Bernstein of National Defense University in Washington, DC:

Four years after adoption, it was abundantly clear that implementation of Resolution 1540 would be a long-term process requiring sustained political commitment and the broadest possible degree of international cooperation to be successful. That said, despite some reservations (particularly in the G-77 group of developing states), Resolution 1540 was quickly accepted as a legitimate legal and political standard, and an important mandate for national action and international cooperation.73

Over time, the 1540 Committee served as an effective clearinghouse for facilitating needed assistance in capacity-building, matching requests for and offers of assistance, and actively promoting the role of donor nations, international and regional organizations, multilateral export control regimes, non-governmental organizations, and academia. By aggressively mobilizing and targeting available expertise and resources, the Committee sought and continues to develop a coherent and innovative strategies for assistance based on tailored outreach and assistance efforts and the development of national action plans and roadmaps.74

The purpose of this chapter is to demonstrate how PSI developed and complimented other Bush administration approaches to proliferation prevention.. These include the Financial Action Task Force at the US Department of Treasury and their efforts to shut down North Korea’s access to global financial markets through targeted sanctions and some of the limitations of financial targeting, the importance of political will, and the implications for international policy when inconsistencies are present. The next chapter builds on this and explores the merits and effectiveness of PSI and other efforts the Bush administration pursued directly related to the

72 See, “Remarks by Ambassador Peter Burian to Participants of the Workshop in Jordan on ‘Implementing United Nations Security Council Resolution 1540 (2004)’”, United Nations, undated, . 73 Bernstein, Paul. International Partnerships to Combat Weapons of Mass Destruction, Center for the Study of Weapons of Mass Destruction, National Defense University, May 2008. 74 Ibid.

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terrorism threat generally and the WMD terrorism threat specifically. This includes international efforts following the PSI models such as the Global Initiative to Combat Nuclear Terrorism and other activities, including domestic ones such as the establishment of the Domestic Nuclear Detection Office within the newly created Department of Homeland Security.

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Chapter 9: PSI and Proliferation Prevention

9.1 PSI Success or Mirage – BBC China, Libya and A.Q. Khan

In October 2003, less than five months after President Bush announced the Proliferation Security Initiative in Krakow and only one month after the decisive meeting in Paris endorsed the statement of interdiction principles, the BBC China, a German-owned freighter, was intercepted by Italian authorities on the high seas as it made its way from Dubai in the Middle East bound for Libya.1 The ship’s cargo included centrifuge components and exposed a global network, “a nuclear black market”, operated by the Pakistani metallurgist Abdul Qadeer Khan.2 A. Q. Khan was no ordinary scientist; he was none other than the revered “father” of the Pakistani nuclear program that successfully conducted six nuclear tests in 1998.3 He was known to travel widely, to places like North Korea and the lab that bore his name, Khan Research Laboratories, not only acted as a key facility in Pakistan’s nuclear program, but maintained a thriving commercial business for those entities interested in nuclear technology. The BBC China intercept also identified Khan as the principal supplier of Libya’s still-embryonic uranium enrichment effort, and the scope of his activities would reveal him as the greatest trafficker in nuclear technology yet known. While the interception of the BBC China was a forcing function that prompted Libyan leader Gadhafi to abandon efforts to develop weapons of mass destruction, the scope and global reach of the Khan network illustrated the challenges of private global networks to traditional state-based solutions in combating the spread of weapons of mass destruction.

1 Garvey, Jack. Nuclear Weapons Counterproliferation: A New Grand Bargain, Oxford University Press, 2013, pp. 185-191. 2 Mian, Zia. “A review of Nuclear Black Markets: Pakistan, A. Q. Khan, and the Rise of Proliferation Networks”, Bulletin of the Atomic Scientist, November 18, 2007, .

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As a result of the information gathered on board the BBC China and the subsequent investigation, intelligence agencies worldwide expanded their understanding of this clandestine procurement network, a global enterprise that for well over a decade provided “one-stop shopping” for nuclear fuel, uranium enrichment technology, and even nuclear weapons design.4 Regardless of whether Khan was a rogue actor or an instrument of Pakistani state policy (or, as is most likely, something in between), the revelations of his activities carry important lessons. First, in an environment of technology diffusion, global markets and networks, and open borders, the efforts and ambitions of one individual can make a difference. Whether in the development of state nuclear, biological, and chemical (NBC) weapons programs, or in transferring knowledge, technologies and know-how to the highest bidder, individuals can influence regional and even the global security environment. Secondly, the A. Q. Khan network exposed major gaps in the state-based nuclear technology control regime. “Secondary proliferation” by non- state actors (entrepreneurs in this case) remains largely outside the reach and capacity of existing international control mechanisms, and to some extent is a problem that the states, the parties that created the Nuclear Nonproliferation Treaty (NPT) and associated agreements, simply never anticipated. In many respects, international control mechanisms remain mired in a Cold War mentality and lack the flexibility to adapt to the emergent threat environment.5 Indeed, as with the A. Q. Khan network, if there is a willing and politically unconstrained single source for virtually an entire nuclear fuel cycle, then the very premise of supply controls, namely, that slowing the transfer of critical technologies buys time for diplomacy and politics to address proliferation incentives, is fatally undermined.

3 Windrem, Robert. “Pakistan’s Nuclear Father, Master Spy”, NBC News, 2013, . 4 “U.S. targets A.Q. Khan nuclear network”, CNN, January 12, 2009, . 5 Lavoy, Peter. “The Second Time is the Charm: Secondary Proliferation as a Distinct Phenomenon”, Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, California, USA, Mar 22, 2006.

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Encouraging Libya to renounce both terrorism and WMD aspirations was a longstanding global and regional objective. As Colonel Muammar Gadhafi intensified his efforts to “come in from the cold,” the West made clear the central importance of the WMD issue in any process of normalization. While Gadhafi may have believed he could achieve normalized relations and a lifting of US sanctions while still maintaining clandestine WMD programs, this position became increasingly untenable as he witnessed the global reaction to the events of September 11, 2001. The campaigns in Afghanistan and Iraq demonstrated that the United States and allies were prepared to marshal significant force to eliminate terror and WMD threats posed by rogue states. This probably led him to conclude that he too could become a target of coalition military action. Once it became clear that those centrifuge parts on the BBC China were going to Libya and that Libya was would be closely scrutinized by the United Nations and IAEA, the value of Gadhafi’s program was reassessed by the Libyan leadership. It was clear that Gadhafi had been exposed and the strategic decision he faced was clear: give up his nuclear ambitions and program or be added to the “axis of evil.”6 These political consequences had profound regional and global implication and they began with one single event, the successful interdiction of the BBC China. And the success of the interdiction was attributed to PSI.7

The interdiction itself was unremarkable. The suspect shipment involved Malaysian built uranium centrifuge enrichment transiting from Malaysia to Libya through Dubai. The German- owned BBC China, left Dubai and passed through the Suez Canal. The United States requested that the German shipping company divert the ship into the Italian port of Taranto, where it was searched.8 The resulting search uncovered the parts and Gadhafi had be caught red-handed.

6 Gardner, Frank. “Who's who in the 'axis of evil'”, BBC, December 20, 2003, . 7 Kaplan, Eben. “The Proliferation Security Initiative”, Council on Foreign Relations, October 19, 2006. 8 Bolton, John R. “Press Conference on the Proliferation Security Initiative”, Under Secretary for Arms Control and International Security U.S. Consulate General in Krakow, Krakow, Poland, US Department of State, May 31, 2004, .

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9.2 Impact of the BBC China Interdiction

The seizure of the BBC China in October 2003 demonstrated that Gadhafi’s nuclear program was no longer clandestine and that his procurement effort could be penetrated and shut down. According to some accounts provided by Libyan officials, the capture of Saddam Hussein in December 2003 underscored to Gadhafi the personal risk associated with maintaining rogue status.9 Considering these factors, one can see how the post-9/11 environment shaped Gadhafi’s calculus of the benefits and risks in pursuing WMD and led him openly to renounce WMD and to accept comprehensive disarmament rather than attempt to maintain covert programs.10

In this sense, WMD became a source of insecurity to Gadhafi and an impediment to his principal goal of reintegrating with the international community in order to address Libya’s growing economic and social problems. By tying the removal of sanctions and the prospects for political and economic rehabilitation to Libya’s WMD efforts, and by demonstrating a credible threat of military action, US policy presented Gadhafi a powerful set of incentives to disarm. In this “carrot and stick” dynamic it is important not to underestimate the power of the carrot, that is, the promise of significant benefits. By all accounts, economic sanctions by the United States and the United Nations beginning in the early 1990s hit Libya hard, and the regime’s poor economic management compounded their effects. Libyan oil production fell by more than half, with lost revenues estimated by the World Bank at $18 billion.11 Plagued by outdated

9 “The domestication of the erstwhile “mad dog” was held up as one of the few positive results of US President George W Bush's military invasion of Iraq in 2003. The argument went that Gaddafi had watched the fate of fellow miscreant Saddam Hussein, hanged by Iraqis after a US-instigated legal process, and had learnt a sobering lesson. It is perhaps more plausible to argue that the Libyan leader played his WMD card when he saw the benefits of forging strategic partnerships with the US and European powers.” Asser, Martin. “The Muammar Gaddafi story”, BBC News, October 21, 2011, . 10 . Leverett, Flynt L. “Why Libya Gave Up on the Bomb”, Brookings, January 23, 2004, . 11 "The World Bank estimated that sanctions have cost Libya as much as $18 billion in lost revenue, mostly as a result of underinvestment in oil”. Economist, March 13, 1999, p. 56 and see, Hufbauer, Gary Clyde, Jeffrey J. Schott, Kimberly Ann Elliott and Barbara Oegg, Case Studies in Sanctions and Terrorism: Economic Impact, Peterson Institute for International Economics, October 14, 2011.

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technology and mismanagement, the country’s oil infrastructure suffered. The rising expectations of an increasingly young population created conditions that demanded a serious program of economic reform critically dependent on opening the Libyan economy to the outside world. It was time, in the words of former Undersecretary of State Robert J. Joseph, for Libya to make “a strategic decision” to renounce publicly and once and for all that WMD had no place in Libya’s future. “I would point to Libya as a case in which we achieved a strategic decision on the part of a government pursuing nuclear weapons. The Libyans made the calculation that the pursuit of weapons of mass destruction was no longer in their interest. They announced their decision [December 19, 2003] to eliminate these programs and to allow full access by the International Atomic Energy Agency (IAEA), as well as the United States and the United Kingdom, to their programs, the individuals involved, and the facilities involved. We have confidence that the decision was permanent and it applied comprehensively.”12 According to President Bush, speaking at National Defense University in 2004, “Colonel Gadhafi made the right decision, and the world will be safer once his commitment is fulfilled. We expect other regimes to follow his example. Abandoning the pursuit of illegal weapons can lead to better relations with the United States, and other free nations. Continuing to seek those weapons will not bring security or international prestige, but only political isolation, economic hardship, and other unwelcome consequences.”13

The success of PSI led many to look for other enduring challenges that might benefit from the PSI model.

12Boese, Wade and Miles A. Pomper. “Reshaping U.S. Nonproliferation Strategy: An Interview with Undersecretary of State Robert Joseph”, Arms Control Today, June 1, 2006, < https://www.armscontrol.org/print/2063>. 13 Bush, George W. “President Announces New Measures to Counter the Threat of WMD”, Remarks at National Defense University, Washington, DC, US Department of State, February 11, 2004, < https://2001- 2009.state.gov/t/isn/rls/rm/29290.htm>.

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9.3 WMD Terrorism

Historically, only a few terrorist groups have shown an interest in WMD, and fewer still have acquired and used such weapons. There are a number of exceptions, such as the 1995 use of sarin by Aum Shinrikyo that killed twelve and injured over 5,000.14 Significantly, as pointed at by Michael Eisenstadt and W. Seth Carus, some groups that have used WMD subsequently abandoned them.15 Thus, the Tamil Tigers used chemical agents against Sri Lankan forces in 1990, but there is no evidence of subsequent interest by them in chemical weapons or other WMD. Similarly, the Rajneeshee, a cult responsible for infecting 750 people in Oregon during September 1984 by contaminating salad bars with salmonella, subsequently stopped using biological agents and focused on more traditional weapons.16

The rising concern over the ambitions and capabilities of al Qaida in the 1990’s prompted a new look at WMD terrorism. In 1998, Osama bin Laden issued a statement declaring that it was a religious imperative for Muslims to acquire WMD.17 In 2003, a Saudi cleric issued a fatwa justifying the use of WMD, even if it resulted in the mass death of innocents.18 There is considerable evidence that al Qaida showed interest in WMD, although there is less evidence to indicate serious progress in developing capabilities to use them. Al Qaida had a crude effort to develop poisons under the direction of Abu Khabab al-Masri, who reportedly was killed in July 2008.19 Al Qaida also explored producing radiological dispersal capabilities and devices. More

14 Sasaki, Sayo. “Aum victim keeps memory alive via film”, The Japan Times, March 9, 2010, p. 3. 15 Eisenstadt, Michael. Iraq and After: Taking the Right Lessons for Combating Weapons of Mass Destruction, Occasional Paper 2, Center for the Study of Weapons of Mass Destruction, National Defense University Press, 2005, p. 7. 16 Carus, W. Seth. “The Rashneeshees (1984)”, in Tucker, Jonathan, Toxic Terror: Assessing Terrorist Use of Chemical and Biological Weapons, MIT Press, 2001, pp. 115-137. 17 Mowatt-Larssen, Rolf. Al Qaeda Weapons of Mass Destruction Threat: Hype or Reality? Belfer Center for Science and International Affairs, Harvard Kennedy School, 2010, p. 2. 18 Ibid, pp. 26-30. 19 Ross, Brian, Nick Schifrin, Habibullah Khan. “Key Al Qaeda Bomb Maker and Poisons Expert Killed”, ABC News, July 28, 2008, < http://abcnews.go.com/Blotter/story?id=5464190>.

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seriously, it also had a program to develop biological weapons capable of causing mass casualties, which United States forces discovered after the invasion of Afghanistan.20

9.4 Adapting the PSI Model to WMD Terrorism

Prior global nonproliferation treaties including the Chemical Weapons Convention (CWC), Biological Weapons Convention (BWC), and Nuclear Nonproliferation Treaty (NPT)) served the global proliferation prevention agenda well over the years. Yet, as was discussed earlier, the Bush administration expanded and changed the way the United States responded to threats of terrorism, nuclear terrorism, and weapons of mass destruction. The Global Initiative to Combat Nuclear Terrorism (GICNT) was an attempt to break the link between WMD proliferators and the terrorists that sought to acquire them.

Launched in 2006 by President George Bush and Russian counterpart Prime Minister Vladimir Putin, GICNT was created to reflect the intentions of partner nations to pursue the necessary steps to “prevent the acquisition, transport, or use by terrorists of nuclear materials and radioactive substances or improvised explosive devices using such materials, as well as hostile actions against nuclear facilities.”21 GICNT, therefore, sought to prevent nuclear terrorism by denying terrorists access to nuclear sites and fissile material by developing a set of best practices based on a PSI-like political commitment to strengthen domestic laws preventing WMD transfers and working together as a global community to combat such proliferation.

As with PSI, GICNT stresses that all activity will be based on current international law and national legislation. In fact, GICNT priorities are fully supported by the United Nations Security Council and previously implemented resolutions 1540 and 1373, which are aimed at

20 Bergen, Peter. “Al Qaeda's track record with chemical weapons”, CNN, May 7, 2013, . 21 “Joint Statement by U.S. President George Bush and Russian Federation President V.V. Putin Announcing the Global Initiative to Combat Nuclear Terrorism”, The White House, July 15, 2006, < https://georgewbush- whitehouse.archives.gov/news/releases/2006/07/20060715-2.html>.

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preventing weapons of mass destruction from getting into the global commons and sharing information pertaining to the suppression of acts of nuclear terrorism, respectively22.

The core of GICNT is a set of principles, referred to as the “Statement of Principles” not unlike the Statement of Interdiction Principles that underpin PSI. The eighty-six endorsing nations23 are asked to demonstrate their commitment to build collective and individual capacity to combat the global threat of nuclear terrorism. Like PSI, states “endorse” the Statement of Principles and thus make a political commitment to abide by their terms. The Statement of Principles are short, voluntary, and based on UNSCR action and international law:

Participants in the Global Initiative to Combat Nuclear Terrorism (GICNT) are committed to the following Statement of Principles to develop partnership capacity to combat nuclear terrorism on a determined and systematic basis, consistent with national legal authorities and obligations they have under relevant international legal frameworks, notably the Convention for the Suppression of Acts of Nuclear Terrorism, the Convention on the Physical Protection of Nuclear Material and its 2005 Amendment, United Nations Security Council Resolutions 1373 and 1540. They call on all states concerned with this threat to international peace and security, to make a commitment to implement on a voluntary basis the principles:

1. Develop, if necessary, and improve accounting, control and physical protection systems for nuclear and other radioactive materials and substances; 2. Enhance security of civilian nuclear facilities; 3. Improve the ability to detect nuclear and other radioactive materials and substances in order to prevent illicit trafficking in such materials and substances, to include cooperation in the research and development of national detection capabilities that would be interoperable;

22 Olson, Conrad. “The Global Initiative to Combat Nuclear Terrorism: Progress to Date”, NTI, August 5, 2009, < http://www.nti.org/analysis/articles/initiative-combat-nuclear-terrorism/>. 23 “The Global Initiative to Combat Nuclear Terrorism”, The US State Department, undated, .

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4. Improve capabilities of participants to search for, confiscate, and establish safe control over unlawfully held nuclear or other radioactive materials and substances or devices using them; 5. Prevent the provision of safe haven to terrorists and financial or economic resources to terrorists seeking to acquire or use nuclear and other radioactive materials and substances; 6. Ensure adequate respective national legal and regulatory frameworks sufficient to provide for the implementation of appropriate criminal and, if applicable, civil liability for terrorists and those who facilitate acts of nuclear terrorism; 7. Improve capabilities of participants for response, mitigation, and investigation, in cases of terrorist attacks involving the use of nuclear and other radioactive materials and substances, including the development of technical means to identify nuclear and other radioactive materials and substances that are, or may be, involved in the incident; and 8. Promote information sharing pertaining to the suppression of acts of nuclear terrorism and their facilitation, taking appropriate measures consistent with their national law and international obligations to protect the confidentiality of any information which they exchange in confidence.24

Not only do GICNT endorsers support a global network towards the prevention of nuclear terrorism and the criminalization of WMD proliferation, but domestic, bilateral, and multilateral gains have occurred as well.

Given the number of endorsees, the way the GICNT complements UNSCR 1540, and since it is based on a model now familiar in the international community, GICNT would be expected to be stable and effective component of the proliferation prevention framework. Undersecretary of State Robert G. Joseph asserted that GICNT was the first initiative to take a

24 “Statement of Principles”, Global Initiative to Combat Nuclear Terrorism, undated, .

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comprehensive approach to dealing with all elements of nuclear risk.25 While the objectives of the initiative were certainly wide-ranging, GICNT failed to develop a mechanism that accounted for differing levels of capabilities, planning and resources across the wide-range of state endorsees. In other words, some states lacked the necessary resources to dedicate themselves to fully accomplishing the goals of the global initiative, some lacked the capacity to conduct an assessment of domestic laws and others lacked the ability to enforce existing or new laws once enacted. Since GICNT was based on the PSI model, it suffers from similar limitations. For example, GICNT essentially asks each of the endorsing states to be prepared for complex and expensive actions when needed in a short period of time. For example, activities that were deemed important included the ability to:

• Develop and improve accounting, control and physical security of nuclear and other radioactive materials and substances; • Improve and enhance security at civilian nuclear facilities; • Improve the ability to detect nuclear and other radioactive materials in order to prevent illicit trafficking, including cooperation in the research and development of national detection capabilities that would be interoperable; • Improve capabilities to search for, confiscate, and establish safe control over unlawfully held nuclear or other radioactive materials and substances or devices using them; • Prevent the provision of safe haven to terrorists and financial or economic resources to terrorists seeking to acquire or use nuclear and other radioactive materials and substances; • Ensure adequate respective national legal and regulatory frameworks sufficient to provide for the implementation of appropriate criminal and, if applicable, civil liability for terrorists and those who facilitate acts of nuclear terrorism;

25 Alcaro, Riccardo. “The Global Initiative to Combat Nuclear Terrorism: Big Potential, Limited Impact?”, The International Spectator, Italian Journal of International Affairs, Volume 44, 2009 - Issue 1, April 8, 2009, pp. 99- 112.

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• Improve capabilities of participants for response, mitigation, and investigation, in cases of terrorist attacks involving the use of nuclear and other radioactive materials and substances, including the development of technical means to identify nuclear and other radioactive materials and substances that are, or may be, involved in the incident; and • Promote information sharing pertaining to the suppression of acts of nuclear terrorism and their facilitation, taking appropriate measures consistent with their national law and international obligations to protect the confidentiality of any information which they exchange in confidence.26

By its structure, organization and its political commitment nature, GICNT has a number of limitations. For example, it does not cover nuclear facilities, materials, and weapons. Presidents Bush and Prime Minister Putin justified this exception by simply stating that their countries meet “current requirements…and [they trust] other nuclear weapon state parties to ensure the same level of protection.”27 The dilemma, however, remained that there was no verification mechanism in place to ensure “the same level of protection” is met. While the initiative is said to be in full compliance with UNSCR 1540, there is no language that the resolution provides the exclusion for military nuclear installations, leaving questions over whether or not all military nuclear storage facilities are adequately secure. GICNT also ignores inadequate international security and accounting standards. While the initiative complies with UNSCR 1540, in so far as members are asked to take “appropriate measures to account for and secure WMD, and takes appropriate effective physical protection measures”, the terms appropriate and effective are not clearly defined by GICNT’s statement of principles. The initiative could have been used as a tool to direct the development and implementation of these standards, but this was not the case. Some have suggested that standards should require each country possessing usable nuclear material to establish and effectively employ nuclear security

26 “Statement of Principles”, Global Initiative to Combat Nuclear Terrorism, undated, . 27 “Joint Statement by U.S. President George Bush and Russian Federation President V.V. Putin Announcing the Global Initiative to Combat Nuclear Terrorism”, The White House, July 15, 2006, < https://georgewbush- whitehouse.archives.gov/news/releases/2006/07/20060715-2.html>.

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systems that could defeat internal and external threats that terrorists and criminals are known to pose. This, however, would be far more compelling for endorsing states that embodied it in a political commitment. GICNT is a political commitment, and like PSI, has the strengths of flexibility and the coalescing of like-minded states to combat the transfer of WMD materials to terrorists but lacks important tools such as verification and inspection protocols that may be welcome by some. Due to these shortcomings, among others, some experts have concluded that GICNT, while a fundamentally progressive initiative, is not one that is prepared to deal with nuclear prevention now, but rather for the anticipation of what is to come in the future. In fact, with approximately one hundred-thirty research facilities in forty countries around the world, it can be assumed that the global chain of nuclear security is only as strong as its weakest link; and with some facilities secured only with an unarmed guard and a chain link fence, our allies could be as much a problem as our enemies.

Yet, if you look at proliferation prevention as a continuum or a layered defensive strategy that begins with a first desire to acquire nuclear weapons capabilities leading to a nuclear capable program or a weapon itself, GICNT is one tool that helps prevent an actor from sliding across that continuum to acquisition or use.

The announcement of GICNT came during a time when United States-Russia relations were strained. In both countries, the perception of the purpose and goals of the war on terror were different and concerns on the danger of nuclear devices versus radioactive ‘dirty bombs’ varied. This meant that there were real differences over which facilities were priorities and where resources should be used. GICNT provided and important opportunity for both states, suspicious of each other’s motivations they may be, to begin the work of developing clear nuclear standards through common principles that endorsees could work to achieve. GICNT and PSI afforded the endorsing states where there existed a historical resistance to mandate security

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standards for nuclear weapons and military fissile material stockpiles unilaterally to work together toward a common end.28

9.5 Domestic Nuclear Defense Activities in Conjunction with International Efforts

The launch of PSI and the GICNT also coincided with United States domestic efforts to strengthen its defenses against WMD terrorism. With the prospect of WMD terrorism now a threat to the homeland against not only international terrorists but also domestic “lone wolfs” such as the Amerithrax attacks, the United States undertook several initiatives. The United States established the Domestic Nuclear Detection Office and the position of Director of National Intelligence and the National Counterproliferation Center in order to detect and report attempts to import or transport nuclear materials for illicit use and to exercise strategic oversight of the intelligence community’s work in relation to the threat of WMD. Additionally, efforts to strengthen and improve nuclear security, as well as reduce the threat of nuclear terrorism were improved between the United States and Russia. The adoption, establishment, and launching of international programs during this time included: Adopting the International Convention for the Suppression of Acts of Nuclear Terrorism (2005) that providing legal basis for international cooperation in the investigation, prosecution, and extradition of those who commit terrorist acts and establishing the International Atomic Energy Agency Nuclear Security Program (2002): to assist member states with the improvement of safety and security of nuclear and radiological materials.

PSI did not develop independently and apart from other proliferation prevention activities. The scope of the threat as demonstrated first by the So San interdiction and later by the BBC China interdiction and uncovering the A.Q. Khan network merely months after PSI was

28 Countryman, Thomas M. “Remarks to the 2015 GICNT Plenary Meeting by the Assistant Secretary, Bureau of International Security and Nonproliferation”, Helsinki, Finland, US Department of State, June 16, 2015.

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announced, impacted all of the Bush administrations’ proliferation prevention actions. This spans greater nonproliferation efforts such as UNSCR 1540 and counterproliferation efforts such as building the tools and developing the needed plans to execute interdiction operations. Other global initiatives such as the Global Nuclear Energy Partnership and the Global Initiative to Counter Nuclear Terrorism and domestic efforts such as the establishment of the Department of Homeland Security in general and the Domestic Nuclear Detection Office specifically were aimed at meeting the increasingly global and private aspects of the nuclear threat.

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Chapter 10: Evaluating PSI

10.1 The Bush administration, the WMD Threat and a Coherent Strategy

Understanding the drivers that led to the creation of the Proliferation Security Initiative is important given the context of the security environment as it existed at the time. The primary drivers for developing the PSI were 9/11 and the recognition that weapons of mass destruction in the hands of terrorists was the greatest danger facing international society. Secondary drivers included the realization that following 9/11, proliferation networks, driven by globalization, private sector actors, and access to WMD resources, information and expertise were not only growing, but were a dangerous reality now. This urgency was brought into stark relief by uncovering and “rolling-back” the A.Q. Khan network. Intelligence pointed to a global enterprise, with global reach that included not merely state actors but also non-state global finance, global trade routes and elastic non-state networks willing to facilitate WMD proliferation.1 As a backdrop against these growing threats was the recognition that the Nuclear Nonproliferation Treaty was fractured and perhaps even failing. NPT compliance was a real concern with regard to a number of states. First there were the cheaters to worry about, Iran and North Korea. Second, states outside the NPT, such as Pakistan, India and North Korea presented real and pressing proliferation threats that may present themselves in unpredictable and unforeseeable ways. Third, there remained the nuclear aspirants, Syria, Libya and Burma for example, who may choose to use new avenues to get WMD capabilities that may or may not be obvious to the international proliferation control regimes. Against this backdrop, with the NPT apparently lacking the ability to adjust to these trends and institute changes to strengthen

1 It is very interesting to read Proliferation: Threat and Response in hindsight. The report was published by the Office of the Secretary of Defense in January 2001 and discusses ways to “deter” terrorist organizations such as al Qaeda from attacks. Proliferation: Threat and Response, Office of the Secretary of Defense, January 2001, p. 61, .

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inspection and verification measures, there was real fear that if the situation looked so dire in the post 9/11 word, what would it look like in five, ten or twenty years?2

So what changed? How did an administration that preferred direct and often unilateral solutions to proliferation challenges opt for a multilateral response? It is important to consider that key members of the Bush administration were educated, trained and influenced by the theory and experiences of the Cold War. During the Cold War, traditional wisdom suggested that chemical and biological weapons were merely a poor man's way to achieve some lesser degree of impact than a real existential weapon such as an atomic bomb. Radiological Dispersion Devices and chemical weapons were area denial weapons and only impacted an area for a period of time. RDDs and chemical weapons were the “poor man's atomic bomb” with limited impact that US, NATO and other coalition forces were organized, trained and equipped to fight through. Traditional thinking during the Cold War also suggested that weapons of mass destruction would be used only as a “weapon of last resort.”3 No sane leadership would risk certain annihilation in the face of overwhelming nuclear superiority unless regime survival was in immediate peril. So prior to 9/11, they believed that North Korea, for example, would only use a nuclear capability if regime survival were at risk. Short of that, nuclear use would not make sense.

Weapons of mass destruction were also viewed as creating operational challenges not just for the United States and its allies, but also those who would choose to use them. They were viewed as too hard for an adversary to use effectively. So, for example, the conventional wisdom held that chemical and biological weapons were not very effective against forces in the field, especially those of the United States that were prepared to conduct operations in or around affected areas. Chemical weapons used by Iraq against the Kurds and against Iran in the Iran-

2 See, Lugar, Richard. The Lugar Survey on Proliferation Threats and Responses, Chairman, Senate Foreign Relations Committee, The US Senate, June 2005, . 3 Arkin, William. “Not Just A Last Resort?”, The Washington Post, Sunday, May 15, 2005, .

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Iraq war and were generally believed to be ineffective, if not poorly used, or even counterproductive weapons. Biological weapons were seen as a mere extension of chemical weapons and while contagious biological weapons were of concern, vaccines and better tactics, techniques and procedures would mitigate effectiveness. In addition, while this generation understood that weapons of mass destruction could have effects on coalitions that might cause them to unravel, the global outcry against using these weapons would strengthen resolve against an attacker, not weaken it, as in the case of the London Blitz and Germany’s refusal to buckle under Allied aerial bombing.4

After 9/11, many of these conventional understandings were seriously challenged as were many of the principles of key members of the Bush leadership. States were not the only actors on the global stage. New actors with access to new capabilities challenged Cold War conventional wisdom. Given the grave nature of the threat, the Bush administration which had coldly asserted that every terrorist has a return address was now faced with a fundamental problem:5 what if a loose nuclear weapon originating from the unsecure stockpiles of Russia was acquired by terrorists and detonated in a major allied city or in the homeland? The “return address” might implicate an ally or new partner such as Russia. The old cost/ benefit logic might not apply. Nonstate actors might not be “deterrable” under these circumstances.6

Suddenly, the conventional wisdom gave way to the realization that weapons of mass destruction were seen as a counter to United States and coalition conventional superiority across a global stage encompassing soft and easy targets. Now, early chemical and biological use was viewed as not only possible but likely. This was due to the overwhelming US-led coalition military superiority demonstrated in the Middle East and across the globe since the early 1990s.

4 See, Geoghegan, Tom. “Did the Blitz really unify Britain?” BBC News Magazine, September 8, 2010, . 5 Betts, Richard K. “The Soft Underbelly of American Primacy: Tactical Advantages of Terror”, Political Science Quarterly, Vol. 117, No. 1, Spring, 2002, pp. 19-36. 6 Grossman, Elaine M. “What U.S. Could Do if Pakistan Loses Control Over Nuclear Weapons”, NTI, May 17, 2013, < http://www.nti.org/gsn/article/what-us-could-do-if-pakistan-loses-control-over-nukes/>.

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States fearing that such a conventional superiority could destroy their military and/or weapons of mass destruction capability would lead them to use or otherwise to lose them. For any state, the prospect of “use or lose” presented a dilemma: not to use them would result in their destruction; using them may lead to their annihilation.7 But perhaps, by using weapons of mass destruction, enough casualties, even civilian casualties, would bring the United States and its allies to the negotiation table. Civilian casualties and terrorists’ reach to the homeland presented a new and chilling problem: what to do with mass numbers of sick, dying and dead? How would societies deal with the psychological trauma of WMD used in the homeland? This poses an enormous medical challenge not to mention the societal drag, as seen during the 1995 Aum Shinrikyo Tokyo subway attacks, the “walking worried” and the “worried well” present a huge problem for emergency response. Keep in mind that during the Tokyo attacks, more than 5,000 people required hospital attention thus nearly crippling the ability of Metropolitan Tokyo to respond effectively to the healthcare effects of that sarin gas attack.8

Post-9/11, we see a concerted attempt to better specify and better understand the term “weapons of mass destruction.” In the new threat environment, nuclear weapons look a lot different than biological weapons, biological weapons were a lot different than chemical weapons and concern over radiological weapons and the availability of material and ease of weaponization became a disturbing reality. The recognition that chemical and biological weapons might have operation utility and differentiated effects outside the battlefield became a concern. For example, chemical weapons can be used as an area denial weapon and radiological weapons similarly can use to create terror. Therefore, the prospect of weapons of mass destruction use and likelihood changed. Following 9/11, these weapons were no longer merely regional or to be used to deter state behavior; everywhere in the homeland and abroad was now a battlefield. Airbases, military depots and deployment centers were not the only targets but ports, cities, malls, infrastructure, and even homes and civilians were now on the new front lines. The

7 Wellerstein, Alex. “Five ways that nuclear weapons could still be used”, The Guardian, August 6, 2015, < https://www.theguardian.com/commentisfree/2015/aug/06/nuclear-weapons-70-years-bombing-hiroshima-war>. 8 Seto, Yasuo. “The Sarin Gas Attack in Japan and the Related Forensic Investigation”, Organisation for the Prohibition of Chemical Weapons, June 1, 2001.

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later might very well be the first and primary targets of an adversary. Terrorist attacks were not limited to scope but sought mass casualty events to shock the conscience and drive terror recruiting. Terrorists were only limited by their creativity. The threat was not distant and over the horizon; it was near and immediate. Anyone, anywhere could be a target. Indeed the entire apparatus of the US government changed after 9/11. The creation of the Department of Homeland Security is one significant example that combined 240,000 US government workers into one organization.9

The changing perception of the threat had a dramatic impact on how the United States developed new tools and programs. Urgent action was needed and traditional tools found lacking needed to be strengthened or new tools developed. The Bush administration did not take an either/ or approach, but a both/ and approach, both strengthening old tools while adding new processes, such as PSI.

As envisioned, PSI would operate at the seam between diplomacy and operations. Diplomatic means would be used to elicit political commitments to form a coalition of the willing, with state action predicated on a set of interdiction principles. PSI would also have an operational component that included developing better interdiction plans, exercises and capabilities. The concept was unique to the Bush administration, through both diplomacy and operations, PSI along with UNSCR 1540 and the Global Initiative to Combat Nuclear Terrorism would not only bolster the norm against WMD proliferation but put in place laws and tools to prevent it more effectively.

9 According to the Department of Homeland Security, it “has a vital mission: to secure the nation from the many threats we face. This requires the dedication of more than 240,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector. Our duties are wide-ranging, and our goal is clear - keeping America safe.” “About DHS”, Department of Homeland Security, undated, < https://www.dhs.gov/about-dhs>.

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10.2 What PSI Achieved

PSI furthered the norm against WMD proliferation through a novel approach to soft power; political commitments and operational relevance. PSI’s foundational principle, and in many ways an important and key attribute that distinguishes it from traditional nonproliferation efforts, was that PSI would not be universal. While the avowed political focus would be on taking action to interdict illegal proliferation activities, PSIs purpose was many fold: raise costs to proliferators, expand cooperation among like-minded states, engage the private sector from trans-shippers to finance, deter would-be proliferators and build consensus for proliferation prevention. This was a unique model for the Bush administration and one forced by necessity and the shortcomings evident during the So San incident. PSI would be a non-universal and operationally focused activity with no standing organization. There would be no ratification, no treaty, no secretariat, and no pleas for universality. PSI would be a merger of counterproliferation and nonproliferation; horizontal and vertical nonproliferation objectives combined in an “activity” where only those countries committed to the same goals and driven by the same common set of principles would “lean forward” to prevent proliferation. By identifying and developing critical capabilities within and among PSI partners, building up a knowledge based on best interdiction practices, streamlining communication processes, and developing a common picture of the national and international legal framework that supports this effort, PSI broadened its effectiveness and participation over time. From the original political commitment of eleven “core group” states, PSI now numbers one hundred and five endorsees, and even countries like China that remain skeptical of US intentions acknowledge the need to strengthen proliferation prevention tools akin to PSI10.

PSI was able to attract and grow its numbers due in part to a few unique characteristics of the activity. First, PSI was an action-oriented initiative that facilitated time-sensitive collaboration among countries with a shared capability in stopping specific shipments. While the

10 Zhang, Hui. “China’s Perspective on a Nuclear Free World”, The Washington Quarterly, 33:2 pp. 139-155.

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emphasis was on taking action, PSI member states were not required to participate in any specific interdiction action. Thus, as a political commitment, if the politics of the moment favored no action, a state could demur in the safe harbor of political declarations without operational engagement in a specific interdiction. Second, interdictions generally and PSI specifically required action across a broad range of intergovernmental agencies and required the integration of all relevant levers of national power depending on the proliferation threat posed. PSI states improved their nonproliferation capacity since they were obligated to make their Interagency and intergovernmental nodes of government more effective to respond to a proliferation threat. For example, PSI’s exercises and activities to support improved information sharing and international education and training efforts helps endorsees fulfill their obligations under Security Council resolutions such as United Nations Security Council Resolution 1540 and others focused on “states of proliferation concern.” Additionally, there are other international obligations that PSI activities arguably help by states meeting their obligations. These include the “2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” which makes the illicit transfer of WMD-related materials by maritime vessels illegal and the 2010 International Civil Aviation Organization (ICAO) “Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation” and “Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft” illegalize the illicit transfer of WMD-related materials by aircraft.

Third, PSI was designed to have a flexible architecture that allowed it to adapt to the changing environment, respond to time-sensitive “pop-up” cases and accommodate the distinct but complementary capabilities of like-minded governments. The concept was that not every state was needed to respond to a proliferation threat and that circumstances would dictate who would be involved. Therefore, a small subset of PSI states with the right mix of willingness and abilities could work more effectively together depending on the specifics of a particular scenario. As a result, there was no need for a clearinghouse or a Secretariat to coordinate PSI activities. PSI activities would occur at the operational level under the framework of the already agreed to statement of interdiction principles.

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Regardless of how one assesses the degree to which PSI played an important role in specific interdictions such as the BBC China, it is beyond serious question that PSI produced benefits for the member states and increased their ability to detect and respond to illegal WMD transfers. In fact, the case of the M/V Chong Chon Gang is instructive. In July 2013, the North Korean freighter M/V Chong Chon Gang traveling from Cuba to North Korea was intercepted by Panamanian authorities as it entered the Panama Canal.11 Panama is a member of PSI and hosts a robust exercise series known as PANAMAX12. On board, authorities discovered a missile fire control radar for SA-2 surface-to-air missiles, other missile equipment and possible MIG airplane parts. The thirty-five members of the crew were arrested and the president of Panama proudly stated, “The world needs to sit up and take note: You cannot go around shipping undeclared weapons of war through the Panama Canal.”13 Though a more recent case, the Chong Chon Gang case does illustrate that PSI is not merely a United States activity, that other states are willing to take action and work in concert with other states, and that PSI endorsees are enhancing their capabilities to conduct interdiction operations. This was clearly an example of a state leaning forward to conduct the operation and once successful, was proudly touted as a demonstration of competence and expertise by a head of state.

As we have seen, in response to the rise of non-state actors engaged in proliferation activities, the United States envisioned a new model to combat weapons of mass destruction proliferation. This model eschewed the traditional treaty-based framework based on universal application and sought to align like-minded states under a certain nonproliferation principles based in part of strengthening domestic law and enhancing interoperability. During the George W. Bush administration, two multilateral initiatives in particular, the Proliferation Security

11 Byrne, Leo. “Chong Chon Gang passes through Panama Canal: The North Korean vessel caught smuggling weapons from Cuba last year allowed through Panama Canal”’ NK News, May 5th, 2014, . 12 “As Panama Canal Turns 100, Nations Hold War Games to Prevent Terrorist Attack at Nexus of Global Trade”, Fox News, August 15, 2014, . 13 Siddique, Haroon. “Panama seizes North Korean ship carrying weapons”, The Guardian, July 16, 2013, .

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Initiative (PSI) and later the Global Initiative to Combat Nuclear Terrorism (GICNT) represented this model and both were conceptualized and developed to prevent the proliferation of WMD by non-state actors and “states of proliferation concern” by using a less formal framework.14

While both PSI and GICNT were designed as “activities” and not organizations and as such, lack a secretariat or a more formal organizational framework, they effectively asked states to take action in support of a set of agreed-to principals geared toward countering the proliferation of WMD. Specifically, PSI is focused on stopping shipments of WMD while they are in transit to their destination and the GICNT seeks to have states secure nuclear material domestically. While both initiatives are non-binding and request that states to volunteer resources and make any changes to their national legal authorities they deem necessary to support the effort, this approach did prove effective in the proliferation prevention realm. According the US State Department:

The GICNT and the PSI are complementary, voluntary initiatives that use similar practices and strategies but focus on achieving distinct policy goals. Whereas PSI partners commit to halting and disrupting the trafficking in WMD, their means of delivery, and related materials to state programs and non-state actors of proliferation concern, GICNT efforts focus on strengthening capacity for prevention, deterrence, and response to a nuclear terrorist incident. Although some of these core competencies may be similar for all WMD events, the GICNT focuses exclusively on radiological- and nuclear-related incidents, while the PSI addresses the full spectrum of WMD proliferation.15

Despite the positive effects and collaborative efforts of PSI and GICNT there are doubts over their overall effectiveness and longevity. While for both the lack of a formal structure

14 Winner, Andrew C. “The Proliferation Security Initiative: The New Face of Interdiction”, The Washington Quarterly, 28:2, Spring 2005, pp. 129-143. 15 “The Global Initiative to Combat Nuclear Terrorism: Fact Sheet”, US Department of State, undated and see GICNT Fact Sheet, undated, .

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affords the initiatives flexibility, arguably not otherwise present in a treaty based organization, there remain questions as to how long they can survive on the pure political will of the participants, particularly given that both activities offer very little guidance to members (i.e. no “minimum standard” of participation) and are completely non-binding. With respect to the GICNT, it is uncertain if it can remain a viable entity in the long term if Russia withdraws it support as a co-sponsor of the activity. Moreover, both GICNT and PSI are limited to only commercial entities. What this translates into is that PSI activities and subsequent interdiction operations are prevented by international law from including war ships and non-commercial government ships, while GICNT does not extend to enhancing security or inspections of military instillations. “Since vessels on the high seas are viewed as equivalent to the sovereign territory of their flag states, warships and state vessels of other states may not detain or board them, subject to a limited class of exceptions laid out in UNCLOS.”16

Both PSI and GICNT were conceived to address specific shortfalls in the countering WMD nonproliferation landscape, yet while the concept makes them appealing to some, the organizational and other limitations that by design were an effort to afford flexibility, may make them unsustainable in the long-term. Additionally, these initiatives exist under the framework of conventional and customary international law and are best viewed as a nonproliferation model that comprises one layer in the effort to prevent the proliferation of WMD, the others remaining both traditional nonproliferation efforts based on the NPT framework and counterproliferation initiatives and capabilities. These efforts, in conjunction with PSI and GICNT must continue to offer states incentives to forego proliferation.

10.3 Is PSI as a Sustainable Model: Key Questions

While it can be argued that PSI represents a strong element to the global proliferation prevention strategy, a number of questions merit attention.

16 Johnson, Philip. Expanding the Proliferation Security Initiative: A Legal and Policy Analysis, Booz Allen Hamilton for the Defense Threat Reduction Agency, February 2010, p. 12.

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Are there too many initiatives asking too much of countries that may have limited capacity? If success begets success, then PSI was in for a fundamental shift in size, scope and notoriety following the interdiction of the BBC China. What occurred in the wake of 9/11 and the BBC China was that a sense of “needing to do something” was matched with an operational solution that “promised results.” As it turned out, PSI was the harbinger of a multiplicity of initiatives that reflected the complexity of the threat and an aggressive search for innovative means to attack it. Engaging the international community broadly across the many functional dimensions of the problem (e.g., police, border protection, political, military, financial, legal) required putting in place a range of mechanisms for collaboration. From the US perspective, there was merit in such an approach: it provided flexibility by marshalling small or large groups of partners into coalitions to work specific problems, and thus enabling tailored strategies to match specific problems. At the same time, the sheer number of combating WMD initiatives strained the ability of other states to contribute. The United States is unique with its diplomatic and military reach supported by a vast Department of Defense and Department of State infrastructure. Few, if any states could hope to match the United States’ zeal and reach to counter WMD proliferation. Herein lies the gap. Political commitments are not actions and the desire to act is not the same as having the capabilities needed to do so. A good example, discussed above, is implementation of UNSC Resolution 1540, where the gaps between what is required and what states can actually do are significant and will only be closed through the sustained political commitment of those who need help to create capacity and those capable of providing such assistance to continue to do so.

Will these initiatives have staying power? It is reasonable to ask whether the existing political state commitments can be sustained over the longer-term. At one level, this is a political challenge for the United States. Some partner nations question whether the United States will remain committed to this general approach to the WMD problem, and to specific initiatives, particularly given a change in administration that occurred in 2009 and 2017. In the policy reviews that will take place, which programs will remain priorities? This underscores the recognized leadership role of the United States in forging international collaborative efforts. If

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the U.S does not continue to push on key initiatives and exert proactive leadership, the political commitments other states could weaken. Washington must remain mindful of the fact that for many governments, joining and participating in United States-led initiatives entails a significant political and resource investment, especially during times where anti-American sentiment rises. For its part, it is reasonable for the United States to ask: Who else will step forward to assume a leadership role in this arena? The United States has facilitated leadership opportunities for states within the framework of existing cooperative efforts, but who will offer the next compelling idea for a partnership initiative? In other words, absent the United States, who will keep PSI and GICNT vibrant, relevant and meaningful?

Considering the lack of a bureaucracy or Secretariat, will PSI be forced to choose institutionalization thus losing its unique attributes or atrophy when political attention on these issues wanes? The question of staying power is an organizational and management challenge, especially for these two initiative so dependent on the expression of political will. PSI and the GICNT were and remain initiatives undertaken by heads of state but such high-level attention is hard to sustain. Indeed, could PSI and GICNT suffer from their success in that the lack of prominent cases and increased effectiveness of both lead administration leadership to put their efforts in other pressing security concerns? These and other questions will be addressed over time and will depend on the perception of the threat environment and the relative contribution both initiatives make to international security and stability. Can activities that by design have no permanent standing support organization be self-perpetuating? What is the right balance of institutional structure required to ensure sustainability, especially in the face of changes at the political level? The “policy entrepreneurship” that gave rise to the wide range of initiatives is essential to devising innovative approaches to tough policy challenges. At some point, however, there also may be a need for more formal or centralized coordination and harmonization of these activities to ensure unity of effort. The question then will be what will be lost by doing so.

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Chapter 11: Conclusion

This dissertation examined the origins and development of the Proliferation Security Initiative (PSI) and assessed the degree to which PSI represents a departure from traditional proliferation prevention approaches and presents a new model for countering WMD proliferation activities in the future. The dissertation examined how PSI moved beyond traditional countering WMD strategies and frameworks built in and for a different Cold War era.

The embrace of PSI was a surprise, because the Bush administration entered office skeptical of both the importance of nonstate actors and the value of multilateral approaches. For the incoming Bush administration in January 2001, the primacy of states and the interaction among them would characterize the administration’s foreign policy agenda early in their first term. States mattered and treaties and agreements that strengthened international state-to-state interaction were paramount. Treaties and agreements would be enforced and violations punished. The United Nations was important but, in terms of pursuing US objectives, of marginal utility. The United Nations was emblematic of outdated structures. Slow, deliberative and susceptible to influence from pariah states, the United Nations and other international bodies seemed more interested in developing general norms and standards rather than specific, verifiable and enforceable agreements. The Bush administration came in on a wave of self- assurance that sovereignty reigned and that all illicit activities, even terrorism, had a “return address” that could be reached if needed. Pariah states such as North Korea, Iran, Iraq and Libya that existed outside of the orbit of well-behaved states would be watched, pressured and checked by tightening existing enforceable agreements and ushering in new constraints through new initiatives. Unilateral action, from diplomatic to kinetic, would always be an option and international collaboration would not stand in the way of pursuing US strategic national interests.

What changed? Certainly the terrible events of September 11th, 2001 -- 9/11 -- changed this perspective, but the Bush administration did not create PSI on September 12th. The

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September 11th attacks broke the old mold of looking at the world, creating space for new approaches.

Terrorists’ cells with global reach capable of inflicting mass casualties at low cost jolted the new administration. Threats and soft targets were everywhere. Terrorists operated in “ungoverned spaces”, used the benefits of globalization to finance and execute operations and attracted followers and financing by non-traditional means. Following 9/11, the Bush administration looked for new ways to craft collaborative solutions to urgent problems, such as weapons of mass destruction proliferation lest they find their ways into the hands of terrorists who would not be deterred from using them. Arriving in office certain in their belief that traditional international norms were of little value and that their unverifiable and unenforceable nature were ill-suited to the new millennium, 9/11 changed their perceptions. Unilateral effort could only get you so far. Collaboration and cooperation were needed in the prevention business and none was more urgent than preventing terrorists from acquiring WMD.

In responding to “the gravest threat,” the Bush administration changed from eschewing multilateral approaches to understanding the need for them in creating a larger toolbox for combating WMD. All tools were needed, including strengthening alliances, empowering the United Nations and establishing and expanding norms previously out of favor. Unenforceable “political commitments” became an important tool to marshal consensus and build a bias for taking action against such issues as WMD proliferation. How did a leadership trained and educated in Cold War realism turned to norms and soft power to combat pervasive and urgent security threats?

In conducting the research and analysis to support answers for the primary questions posed in the dissertation, it became clear that there was a period of learning and experimentation and failure after the September 11th attacks, which created the political space and the incentives to change course and create PSI.

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The So San incident demonstrated that the proliferation prevention tools that existed during the early Bush years failed dramatically to keep pace with the threat as it existed in the post 9/11 environment. Nonproliferation tools negotiated in the 1960s through the 1980s were state-focused, based on concepts of universality and most important, were never designed to handle the rise of non-state actors, from al Qaeda, the A.Q. Khan network to North Korean government funding its illicit activities through complicit actors such as banking through Banco Delta Asia. In order to try to close these gaps in capabilities and strategies, the President himself challenged his national security team to do better. After So San, the process changed, and PSI was created. By tracing the process of the development of PSI through thick description of specific historical snapshots, this study showed that President Bush personally critiqued the response to the So San incident, and challenged his administration to devise new approaches. Action was needed now, and new tools were required to combat the threat. There would be no 9/11 for WMD; prevention was key. More effective means of preventing the spread of WMD were needed, because the So San operation showed that “pick-up games” were a failure. The stakes were too high to be left to an ad hoc response.

In response to President Bush’s challenge, the National Security team evaluated what currently existed to support interdiction operations, what existing laws, international treaties and agreements, capabilities, and plans, supported the interdiction of WMD, and where the gaps were. To address the gaps, the team considered several different approaches, from a UN approach to a concerted unilateral action. After conducting an internal evaluation of the options, the team realized that there was not consensus within the U.S. government on what an interdiction operation was, and how to conduct one. For example, there was a wide ranging interpretation of what could be done on land, in the air, and at sea.

The National Security team recommended a multi-pronged approach to stop the global proliferation of WMD. The first effort was to undergo a comprehensive internal review of U.S. authorities for conducting WMD interdictions. The second effort was to emphasize the traditional nonproliferation approach by pushing for agreements in multilateral settings, including the UN, which ultimately led to UNSCR 1540. Finally, a more informal approach was

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recommended, one that would be based on like- minded states agreeing with the urgency of the situation and the need to do something to prevent WMD. This non-universal principles-based political commitment became PSI.

To confront one aspect of the apparent growing global proliferation threat, President Bush in conjunction with a few other like-minded states announced the Proliferation Security Initiative, or Krakow Initiative in 2003. How did PSI grow from 14 initial endorsing states to 105 PSI states today? Uncovering the A.Q. Khan Network and its global reach, global financing, and outsourced manufacturing from Asia to the Middle East to Europe to the United States, jolted the international community. Those who had been skeptical either the threat of WMD by non-state actors, or of U.S. motivations in introducing PSI changed their outlook. A.Q. Khan was not uncovered until after PSI had been initiated, but it was the driver for attracting dozens of additional states to endorse, including states located in critical shipping routes. The network quickly grew to scale and too much greater operational reach.

The now much larger network experienced growing pains. PSI was not a premeditated model, but grew and adapted through the interactions of the endorsing states. The four foundational concepts of the PSI model are: 1) non-binding political commitment, 2) based on a statement of principles, that 3) would be consistent with international and domestic laws, and 4) be operationally focused. As the network grew and added endorsing states and additional activities, these four principles remained, and permeated all the additional activities.

This did not mean the Bush administration would abandon traditional proliferation prevention methods embodied by the Nonproliferation Treaty Regime. Quite the contrary, the new tools and diplomatic approaches such as PSI and the GICNT were rolled into a comprehensive national strategy, the National Strategy to Combat Weapons of Mass Destruction as part of a unified and national effort to stem WMD proliferation. The process from threat to response took time and was driven by the urgency of the moment. The Combating WMD Strategy was based on a tiered approach where new tools complement the old and moreover, despite the unilateral rhetoric, sought to strengthen the existing and more traditional multilateral

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diplomatic tools. Indeed, new initiatives within the traditional nonproliferation and arms control frameworks were pursued from UNSCR 1540 to stronger action in the UN Security Council toward North Korea and Iran for UNSCR violations. Together, these new tools provided flexibility, needed capabilities to respond to crises faster and were effective, with a basis in international and domestic legal authorities, and operationally capable. The result was an international framework that deterred and imposed costs and risks on would-be proliferators, be they state or non-state oriented.

Because the old tools were continued and enhanced at the same time as the PSI approach was initiated and pursued, this has led to confusion over whether PSI really represents a new model. PSI was and is a new model, but it exists alongside enhanced traditional tools. The four foundational concepts of PSI are not new, but their application to WMD interdiction and the attention to operations is new. The old tools had lacked an operational focus. PSI addresses this gap. While the Bush administration pursued tightening existing nonproliferation regimes, the application of PSI represented a new approach to proliferation prevention.

The PSI model was created in response to a quickly changing threat environment, but it was not merely a historical footnote. PSI remains active today, and the four foundational concepts of PSI are replicated in the GICNT. The problem that PSI was created to address still remains.

WMD use and its proliferation remain a major if not the preeminent security concern arising from the Cold War. This threat did not diminish following the fall of the Berlin Wall and collapse of the Soviet Union. Within a decade of those events, Pakistan and India would

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detonate a combined eleven nuclear weapons and in 2006, North Korea would conduct its first nuclear test. In the midst of this timeline, al Qaeda attacked the United States and terrorist attacks from Nairobi, Dar es Salaam and London to Moscow's Izmailovskiy Park changed the perception of vulnerability and in the case of Izmailovskiy Park, the WMD threat and exposed the lack of capabilities and planning needed to confront them.

Over time, 105 states joined to improve and pool their capacities to prevent and deter states and non-state actors from acquiring WMD. The initiative represented an important step in denying enemies’ access to WMD. PSI, coupled with other efforts such as UNSCR 1540 and the Global Initiative to Combat Nuclear Terrorism, continue to have an impact, and are key elements of the current proliferation prevention framework.

The Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism remain unique and important proliferation prevention activities based on political commitments encouraging action strengthened by operational capabilities and policy consensus. Combining elements of a variety of approaches from diplomacy to law to border security and law enforcement to military operational capacity, PSI and GICNT continue to pursue measures across the span of governmental activity to harness efforts to combat a singular and daunting threat. As a participant observer over the past twenty-five years to many of the WMD challenges that carried over and evolved after the Cold War, the questions remained; why this tool (PSI) at this time during this administration? The answer is that PSI was needed to fill a gap exposed at the seams of diplomacy and operations; between government and non-governmental solutions; and, at a time where an urgent answer, even one that ran counter to the thinking of the leadership, was needed. Following the success of PSI, the GICNT likewise was fashioned to embed within political commitments a bias for action based on a set of principles to prevent nuclear terrorism.

Many of the questions and issues arising from PSI and the process by which it became an activity are based on its fundamental premise that political commitments, endorsed at the highest levels of government, would show results. As demonstrated in this paper, PSI evolved

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dramatically as it evolved from a concept, to the development of interdiction principles, to how it was “operationalized” through conferences and Operational Experts Meetings, regional activities and exercises and ultimately emerged as a 105 state activity dedicated to taking practical steps to prevent WMD proliferation. The evidence shows that the success of PSI, as noted during the 10- year anniversary, was based on two concepts; that PSI be based on political commitments and that it seek “practical” steps where cooperation and coordination were possible and if a state did not wish to participate in any aspect of PSI, it was under no duty or obligation to do so. Was this a different approach to nonproliferation? No, nonbinding political commitments are familiar to proliferation prevention practitioners. The Nuclear Suppliers Group (NSG) is one such example.

The NSG serves as an export control regime and operates through a set of export guidelines. NSG guidelines are adopted by consensus and implemented voluntarily at the national level. The guidelines are consistent with and complement the NPT and various Nuclear Weapons Free Zones. The Guidelines govern both nuclear material and dual-use technology and members are admitted to the group based on their ability to supply nuclear-related items, their enforcement of domestic export controls, and their compliance with the NPT and IAEA Safeguards.1 The Australia Group is another example. The Australia Group seeks to limit the proliferation of chemical and biological weapons and operates through tightening and enforcing export licensing laws and procedures. The Australia Group was formed in 1985 in response to the use of chemical agents in the Iran-Iraq War and the fear that these materials could be proliferated elsewhere since it was clear that Iraq obtained materials from the international chemical industry calling into question the efficacy of export controls. The Australia Group is a voluntary organization with no legally-binding obligations on participants. Additionally, consider the Moscow Treaty which limits the numbers of deployable nuclear weapons to between 1,700 and 2,200 warhead that was signed and entered into force between the United States and Russian Federation in 2003. For a number of reasons such as the treaty having no verification provisions, that the reductions were not required to be permanent, that warheads

1 “Nuclear Suppliers Group,” Nuclear Threat Initiative, undated, .

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were not necessarily to be destroyed and that all reductions were to be completed on the date the treaty expired, December 31, 2012, many argued that it was merely an unenforceable political commitment.2

PSI’s success is demonstrated by the number of endorsees that agree to uphold the Statement of Interdiction Principles and the noteworthy WMD interdictions that occurred during the Bush Years. From A.Q. Khan to the BBC China, the cases and the literature suggest PSI was effective in closing the gaps in proliferation prevention. Based on high-level political commitments, PSI represents an important and collaborative tool to raise the barriers and impose costs to would-be proliferators.

Finally, one question always remained during the formative years of PSI. What would happen when a new US President was inaugurated? Was PSI so unique in place, time, and events that new leadership eight years removed from 9/11 with new ideas would still find value in PSI? Would leadership lag or lapse and/or would bureaucratic gravity pull PSI into conformity with traditional proliferation prevention mechanisms? Would PSI emerge with a Secretariat, a budget, a staff or would it be discarded altogether?

The incoming Obama administration seized on proliferation prevention as a top security concern and PSI as an effective tool to break up proliferation networks. The action oriented framework of PSI based on political commitments to a statement of principles was appealing to the more globalist President Obama. After all, his administration had few qualms about the need and importance of establishing political commitments and norms. As President Obama stated during his seminal nuclear security speech in Prague, Czech Republic in 2009:

2 Krauthammer, Charles. “A Token for Russia”, The Washington Post, May 31, 2002, .

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We must also build on our efforts to break up black markets, detect and intercept materials in transit, and use financial tools to disrupt this dangerous trade. Because this threat will be lasting, we should come together to turn efforts such as the Proliferation Security Initiative and the Global Initiative to Combat Nuclear Terrorism into durable international institutions. And we should start by having a Global Summit on Nuclear Security that the United States will host within the next year.

285

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46. “Remarks by President Barack Obama in Prague, Czech Republic”, The White House, April 5, 2009, . 47. “Remarks of John R. Bolton, Under Secretary for Arms Control and International Security Affairs”, Remarks at Proliferation Security Initiative Meeting, Paris, France, 4 September 200, . 49. “Safeguards Legal Framework”, IAEA, July 16, 2015, < https://www.iaea.org/topics/safeguards-legal-framework>. 50. “Security Council Decides All States Shall Act to Prevent Proliferation of Mass Destruction Weapons”, United Nations, SC/8076, April 28, 2004. 51. “Security Council Statement Reaffirms Concern over Weapons of Mass Destruction as It Marks 10 Years since Adopting Landmark Non-proliferation Text”, United Nations, SC/11382, May 7, 2014. 52. “Security Council Toughens Sanctions against Iran: Adds Arms Embargo”, UN News Centre, United Nations, March 24, 2007. 53. “Statement by DAS Glaser on the Disposition of DPRK-Related Funds Frozen at Banco Delta Asia”, Press Release HP-322, US Department of the Treasury, March 19, 2007, 54. “Statement of Interdiction Principles', declaration issued by the Proliferation Security Initiative (PSI)”, The White House, September 4, 2003. 55. “Statement of Principles”, Global Initiative to Combat Nuclear Terrorism, undated, . 56. “Statement on North Korean-Related Funds Frozen at Banco Delta Asia,” Press Release HP-344, US Department of the Treasury, April 10, 2007, . 57. “Status of Safeguards Agreements and Additional Protocols,” International Atomic Energy Agency, undated, < https://www.iaea.org/safeguards/safeguards-legal- framework/safeguards-agreements>.

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58. “Success of Proliferation Security Initiative Lauded in Congress, Expansion of initiative proceeding, State's Rademaker tells House panel”, US Embassy, June 9, 2005. 59. “Suspected WMD-Related Dual-Use Goods and Procurement Transactions Regime Finance and Procurement - Annex I,” Central Intelligence Agency, April 23, 2007, . 60. “Terrorist CBRN: Materials and Effects”, Central Intelligence Agency, June 2003, 61. “Terrorist CBRN: Materials and Effects”, Central Intelligence Agency, June 2003. 62. “Terrorist CBRN: Materials and Effects”, Directorate of Intelligence, Central Intelligence Agency, May 2003. 63. “The 9/11 Commission Report.” The National Commission on Terrorist Attacks upon the United States, W.W. Norton, 2004. 64. “The Global Imitative to Combat Nuclear Terrorism: Frequently Asked Questions”, US Department of State, undated. 65. “The Global Initiative to Combat Nuclear Terrorism”, The US State Department, undated, . 66. “The Proliferation Security Initiative (PSI)”, The State Department, Bureau of Nonproliferation, May 26, 2005, < https://2001- 2009.state.gov/t/isn/rls/other/46858.htm>. 67. “The Safeguards System of the International Atomic Energy Agency,” International Atomic Energy Agency, undated, . 68. “The Treaty on the Non-Proliferation of Nuclear Weapons”, United Nations, July 1, 1968, . 69. “The Worldwide Threat 2003: Evolving Dangers in a Complex World”, Testimony of Director of Central Intelligence George J. Tenet, Senate Select Committee on Intelligence, February 11, 2003. 70. “The Worldwide Threat 2004: Challenges in a Changing Global Context”, Testimony of Director of Central Intelligence George J. Tenet, Senate Select Committee on Intelligence, February 24, 2004 (as prepared for delivery).

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71. “Treasury Briefs North Korea on U.S. Financial System Protections”, US Department of State, March 7, 2006, . 72. “Treasury Briefs North Korea on U.S. Financial System Protections”, U.S. Department of State, March 7, 2006, . 73. “Treasury Designates Banco Delta Asia as Primary Money Laundering Concern under USA PATRIOT Act”, US Department of Treasury, JS-2720, September 15, 2005, . 74. “Treasury Designates Banco Delta Asia as Primary Money Laundering Concern under USA PATRIOT Act”, United States Department of the Treasury, Press Release JS-2720, September 15, 2005, . 75. “Treasury Finalizes Rule Against Banco Delta Asia. BDA Cut Off From U.S. Financial System”, Press Release HP-315, US Department of the Treasury, March 14, 2007, . 76. “U.S. Agencies Have Taken Some Steps, but More Effort Is Needed to Strengthen and Expand the Proliferation Security Initiative,” GAO Highlights, Report GAO-09-43, November 2008. 77. “Unclassified Report to Congress on the Acquisition of Technology Related to Weapons of Mass Destruction and Advanced Chemical Munitions, 1 January Through 30 June 2001”, Central Intelligence Agency Library, Last Updated: Jan 03, 2012, . 78. “United Nations Security Council Resolution 1540”, United Nations 1540 Committee, . 79. “USSTRATCOM Center for Combating WMD (SCC WMD) Proliferation Security Initiative (PSI) Support Cell”, US Strategic Command, undated, . 80. 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3 / [1994] ATS 31 / 21 ILM 1261, 1982. 81. 31 CFR Part 103, Vol. 72, No. 52, March 19, 2007. 82. 31 USC 5311-5330 and 31 CFR Chapter X [formerly 31 CFR Part 103]).” .

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83. Blix, Hans. “An Update on Inspection to the Security Council”, UN Security Council, January 27, 2003, < http://www.un.org/Depts/unmovic/Bx27.htm>. 84. Bolton, John R. “Beyond the Axis of Evil”, Remarks made at the Heritage Foundation, May 6, 2002. 85. Bolton, John R. “Lessons from Libya and North Korea’s Strategic Choice”, Undersecretary of State for Arms Control and International Security Remarks at Yonsei University Graduate School of International Studies, Seoul, Republic of Korea, July 21, 2004. 86. Bolton, John R. “Proliferation Security Initiative: Statement of Interdiction Principles”, Under Secretary for Arms Control and International Security Affairs, Remarks at Proliferation Security Initiative Meeting Paris, France, September 4, 2003. 87. Bolton, John R. “Press Conference on the Proliferation Security Initiative”, Under Secretary for Arms Control and International Security U.S. Consulate General in Krakow, Krakow, Poland, US Department of State, May 31, 2004, . 88. Bush, George W. “President Announces New Measures to Counter the Threat of WMD”, Remarks at National Defense University, Washington, DC, US Department of State, February 11, 2004, < https://2001-2009.state.gov/t/isn/rls/rm/29290.htm>. 89. Bush, George W. “Remarks by the President at Pensacola, Florida Rally”, The White House, August 10, 2004. August 10, 2004, . 90. Bush, George W. “Speech to the Students and Faculty of the US Military Academy”, The White House, June 1, 2002, https://georgewbush- whitehouse.archives.gov/news/releases/2002/06/20020601-3.html>. 91. Bush, George W. “State of the Union Address”, Text of President Bush’s 2003 State of the Union Address, The Washington Post, 28 January 2003, . 92. Bush, George W. “Text of President Bush's 2003 State of the Union Address”, Washington Post, January 28, 2003, .

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93. Countryman, Thomas M. “Remarks to the 2015 GICNT Plenary Meeting by the Assistant Secretary, Bureau of International Security and Nonproliferation”, Helsinki, Finland, US Department of State, June 16, 2015. 94. ElBaradei, Mohamed. “Peaceful Uses of Nuclear Energy: Meeting Societal Needs”, INSAC-2004, United Nations, 2004, < https://www.iaea.org/newscenter/statements/peaceful-uses-nuclear-energy-meeting- societal-needs>. 95. Erlick, Barry. “Global Spread of Chemical and Biological Weapons”, Testimony before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, US Government Printing, S. Hrg. 101–744 Office, 1990. 96. Fact Sheet. “President Bush Signs Biodefense for the 21st Century”, Office of Press Secretary, The White House, April 28, 2004. 97. Federal Register, 31 CFR Part 103, Vol. 70, No. 181, September 20, 2005. 98. Federal Register, 31 CFR Part 103, Vol. 72, No. 52, March 19, 2007. 99. Gore, Al. “Extension of Federal Enforcement Zone in U.S. Coastal Waters Will Help Prevent Violations of Environmental, Customs, or Immigration Laws”, Office of the Vice President, The White House, September 2, 1999. 100. House Committee on Foreign Affairs, “GOP Members Request GAO Evaluation of U.S. Efforts to Transfer Frozen Banks Funds to North Korea,” Press Release, June 12, 2007, . 101. Jacoby, Lowell E. “Statement before the Senate Select Committee on Intelligence”, February 11, 2003. US Congress Senate Select Committee on Intelligence, Current and Projected National Security Threats to the United States, 108th Congress, 1st session, GPO, 2003. 102. Joint Testimony Daniel Glaser, Deputy Assistant Secretary for Terrorist Financing and Financial Crimes, US Department of Treasury, April 18, 2007, < https://www.treasury.gov/press-center/press-releases/Pages/hp361.aspx>. 103. Joseph, Robert G. “Applying the Bush administration's Strategy to Combat Weapons of Mass Destruction to Today's Challenges”, Remarks to the Fletcher School Conference on

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the Proliferation of Weapons of Mass Destruction, US State Department, October 21, 2005, . 104. Joseph, Robert G. “Statement in Warsaw”, US Undersecretary for Arms Control and International Security, US Department of State, June 23, 2006. 105. Kay, David. “Statement on the Interim Progress Report of the Iraq Survey Group”, House Permanent Select Committee on Intelligence, the House Appropriations Committee Subcommittee on Defense, and the Senate Select Committee on Intelligence, October 2, 2003, . 106. Kay, David. “Testimony on Iraqi Weapons of Mass Destruction Before the Senate Armed Services Committee”, Senate Armed Services Committee, January 28, 2004. 107. Kerr, Paul K., Mary Beth D. Nikitin, and Steven A. Hildreth, “Iran-North Korea-Syria Ballistic Missile and Nuclear Cooperation,” Congressional Research Service, April 16, 2014. 108. Lugar, Richard. The Lugar Survey on Proliferation Threats and Responses, Chairman, Senate Foreign Relations Committee, The US Senate, June 2005, . 109. Nanto, Dick K and Emma Chanlett-Avery. “The North Korean Economy: Leverage and Policy Analysis,” Congressional Research Service Report for Congress, RL32493, March 4, 2008, . 110. National Security Act of 1947, Public law 80-253, July 26, 1947. 111. National Security Strategy of the United States, The White House, September 2002. 112. National Strategy for Combating Terrorism, The White House, September 2006. 113. National Strategy to Combat Weapons of Mass Destruction, The White House, December 2002. 114. Newman, Edward, Ramesh Thakur and John Triman. Multilateralism Under Challenge: Power, International Order, And Structural Change, United Nations University Press, 2006. 115. Obama, Barack. Prague Speech, April 5, 2009.

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116. Office of Public Affairs. “Dirty Bombs: Fact Sheet”, US Nuclear Regulatory Commission, December 2012 117. Office of the Spokesman. “London PSI Meeting Advances Public-Private Partnership to Combat WMD Proliferation,” U.S. Department of State, September 26, 2006, . 118. Proliferation Security Initiative: Chairman's Statement at the First Meeting, Foreign Ministry of Spain, First Meeting of the PSI, June 12, 2003. 119. Proliferation Security Initiative: Chairman's Statement at the Second Meeting, Foreign Ministry of Australia, Second Meeting of the PSI, July 9-10, 2003, July 10, 2003. 120. Proliferation Security Initiative: Chairman's Statement at the Third Meeting, Foreign Ministry of France, Third Meeting of the PSI, September 3-4, 2003, September 4, 2003. 121. Proliferation: Threat and Response, Office of the Secretary of Defense, January 2001, . 122. Rademaker, Stephen G. “Tackling the Hard Cases in Nuclear Proliferation”, Acting Assistant Secretary, International Security and Nonproliferation remarks to the Baltimore World Affairs Council, Baltimore, Maryland, US Department of State, March 27, 2006, . 123. Russell, James A. and Christopher Clary. “Globalization and WMD Proliferation Networks: Challenges to U.S. Security”, Conference Report, Naval Postgraduate School, Monterey, California, June 29 – July 1, 2005. 124. Seto, Yasuo. “The Sarin Gas Attack in Japan and the Related Forensic Investigation”, Organisation for the Prohibition of Chemical Weapons, June 1, 2001. 125. Squassoni, Sharon A. “Weapons of Mass Destruction: Trade between North Korea and Pakistan,” CRS Report for Congress, RL31900, October 11, 2006. 126. Squassoni, Sharon A. “CRS Report for Congress: Proliferation Security Initiative”, Congressional Research Service, June 7, 2005. “Proliferation Security Initiative Frequently Asked Questions (FAQ)”, Bureau of Nonproliferation Fact Sheet, May 26, 2005, . 127. Squassoni, Sharon A. “Proliferation Security Initiative (PSI),” CRS Report to Congress, RS21881, September 14, 2006.

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128. Statute of the International Court of Justice, Article 38, . 129. Tenet, George. “Worldwide Threat: Converging Dangers in a Post 9/11 World”, Testimony Before the Senate Select Intelligence Committee on Intelligence, February 6, 2002. 130. The Homeland Security Act (HSA) of 2002, Pub.L. 107–296, 116 Stat. 2135, enacted November 25, 2002. 131. The National Military Strategy to Combat Weapons of Mass Destruction, Chairman of the Joint Chiefs of Staff, Office of the Chairman, Joint Chiefs of Staff, 13 February 2006. 132. The USA PATRIOT Act. Public Law 107-56, October 26, 2001, 115 STAT 298-303, . 133. Traavik, Kim, “PSI and the Shipping Industry: Speech by the Norwegian Deputy Minister, The Nuclear Files, Project of the Nuclear Age Peace Foundation, Krakow, Poland, June 1, 2004, . 134. U.S. Nuclear Regulatory Commission, “Fact Sheet on Dirty Bombs”, March 2003. 135. United Nations Security Council Resolution 1540, S/RES/1540, United Nations, April 28, 2004, . 136. United Nations Security Council Resolution 1673, S/RES/1673, April 27, 2006, . 137. US Department of Defense. Quadrennial Defense Review Report, September 30, 2001. 138. US Department of State, “Proliferation Security Initiative Participants”, Bureau of International Security and Nonproliferation, June 9, 2015, . 139. USSTRATCOM and USSOCOM, “Counterproliferation Operational Architecture,” Department of Defense Joint Staff, April 26, 2002. 140. Valencia, Mark. “Maritime Security Cooperation: The Politics of the Proliferation Security Initiative”, World Politics Review, September 14, 2010,

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http://www.worldpoliticsreview.com/articles/6401/maritime-security-cooperation-the- politics-of-the-proliferation-security-initiative 141. Weapons of Mass Destruction Counterproliferation: Legal Issues for Ships and Aircraft, Congressional Research Service, RL32097, October 1, 2003. 142. Wilson, Thomas R. “Statement for the Record to the Senate Armed Services Committee on Global Threats and Challenges,” March 19, 2002. 143. World-Wide Volkswagen Corp v. Woodson, 444 U.S. 286 (1980).

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Annex 1: Proliferation Prevention Institutions and Organizations Nonproliferation Treaty on the Non-Proliferation of Nuclear Weapons (NPT):

The NPT provides the organizing principle around which the global nonproliferation regime is constructed. The treaty aims to prevent the spread of nuclear weapons, promote cooperation on peaceful nuclear energy, and further the cause of nuclear disarmament. The grand bargain enshrined in the treaty involves three components. The NPT requires non-nuclear weapon states (NNWS) to foreswear development or acquisition of nuclear weapons. In exchange, the nuclear weapon states (NWS) are forbidden from assisting or encouraging proliferation to NNWS and should pursue eventual disarmament. Furthermore, the NPT upholds the right of all states to peaceful nuclear energy development with the oversight of the International Atomic Energy Agency (IAEA).1

The NPT defines the United States, United Kingdom, France, Russia, and China as NWS and all other parties as NNWS. All NNWS must place their nuclear materials under international safeguards monitored by the IAEA. NWS status is afforded only to those states that manufactured and tested a nuclear weapon before 1967. As a result, all other nuclear powers have been unable to comply with the treaty without dismantling their arsenals. For example, South Africa dismantled its nuclear weapons program before acceding to the treaty in 1991.2

The NPT was opened for signature in 1968 and entered into force in 1970. Although the treaty was originally envisioned to last 25 years, it was renewed indefinitely at the 1995 Review

1 “Treaty on the Non-Proliferation of Nuclear Weapons,” Nuclear Threat Initiative, January 24, 2013, . 2 “The Nuclear Non-Proliferation Treaty at a Glance,” Arms Control Association, January 24, 2013, .

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Conference. At present, there are 189 state parties to the NPT, making it one of the most comprehensive treaties in the nonproliferation regime. The few states not party to the treaty, however, present a serious challenge to its effectiveness. India, Israel, and Pakistan have never signed the NPT, and North Korea withdrew from the treaty in 2003. All four states have nuclear weapons programs, undermining the NPT’s goal of containing horizontal proliferation.3 The NPT does not include built-in enforcement mechanisms. If the IAEA judges a NNWS to be in noncompliance with safeguards, it can report the case to the United Nations Security Council. In the past, the IAEA has found Iraq and North Korea to be in noncompliance with nuclear safeguards. The UNSC has also placed sanctions on Iran for its uranium enrichment activities.4

International Atomic Energy Agency (IAEA):

The IAEA was established by the United Nations in 1957 as part of President Eisenhower’s “Atoms for Peace” initiative. The organization works to promote safe, secure, and peaceful nuclear technology. Headquartered in Vienna, Austria, the IAEA runs a number of research centers, laboratories, and regional offices. The IAEA’s work focuses on five key areas: nuclear sciences and applications; nuclear energy; safety and security; safeguards; and technical cooperation.5 The IAEA Department of Safeguards is the verification arm of the IAEA, and its work is most directly relevant to nonproliferation. The department ensures that the NNWS under the NPT use nuclear energy for peaceful purposes. The IAEA Safeguards Agreements obligate member states to report on the activities of their nuclear programs. The IAEA verifies the accuracy of state declarations through inspections of nuclear facilities. The Department of Safeguards also contributes to verification of arms control and disarmament agreements.6 As required by the NPT, the IAEA has concluded bilateral Comprehensive Safeguards Agreements with most

3 “Treaty on the Non-Proliferation of Nuclear Weapons,” Nuclear Threat Initiative 4 Ibid 5 “About the IAEA,” International Atomic Energy Agency, undated, . 6 “Inside Safeguards,” International Atomic Energy Agency, .

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signatories. The IAEA also has agreements with the NWS and the NPT outliers (Pakistan, India, Israel, Taiwan, and North Korea).7

Following the 1991 revelation of Iraq’s nuclear weapons program, the IAEA attempted to strengthen the Safeguards system against cheating. Iraq had successfully evaded the IAEA, which only inspected declared nuclear materials and facilities. The Iraq situation provided the catalyst for the 1997 adoption of the Additional Protocol to the Safeguards Agreement. The Additional Protocol provides IAEA access to all stages of the nuclear fuel cycle, including activities not involving nuclear material. The protocol also enabled environmental testing by IAEA inspectors.8 Most states with Safeguards Agreements have also ratified the Additional Protocol. Notable exceptions include Pakistan, India, Syria, Iran, and North Korea.9

Nuclear Weapons Free Zones (NWFZs):

A number of treaties establish nuclear weapons free zones over a geographical area. The treaties prohibit anyone from developing, acquiring, possessing, or testing nuclear weapons on certain territories. Five treaties establish NWFZs within the territory of the signatories. The Treaty of Tlateloco (1967) establishes an NWFZ in Latin America and the Caribbean. The Treaty of Rarotonga (1985) establishes an NWFZ in the South Pacific. The Treaty of Bangkok (1995) establishes an NWFZ among the members of ASEAN. The Treaty of Pelindaba (1996) establishes an NWFZ in Africa. The Treaty on a Nuclear Weapon Free Zone in Central Asia (2006) establishes an NWFZ among the former soviet republics of Central Asia. Four global treaties include prohibitions against nuclear weapons amongst their provisions. The Antarctic Treaty (1959) prohibits military activity on Antarctica. The Outer Space Treaty (1967) prohibits

7 “Status of Safeguards Agreements and Additional Protocols,” International Atomic Energy Agency, . 8 “The Safeguards System of the International Atomic Energy Agency,” International Atomic Energy Agency, . 9 “Status of Safeguards Agreements and Additional Protocols,” International Atomic Energy Agency, < https://www.iaea.org/safeguards/safeguards-legal-framework/safeguards-agreements>.

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the placement of nuclear weapons in orbit. The Moon Agreement (1979) supplements the Outer Space Treaty and prohibits military activity on the Moon. The Seabed Treaty (1971) prohibits the placement of nuclear weapons on the ocean floor.10

Zangger Committee (ZAC):

ZAC was formed in 1971 to harmonize nuclear export controls in compliance with the NPT. The committee maintains a “trigger list” of special fissionable materials and the equipment used in their production. Items on the list trigger a requirement for safeguards and guidelines regarding their export to non-NPT states. The three conditions for export are a non- explosive assurance, IAEA safeguards, and a re-transfer provision. ZAC is an informal group whose decisions are not legally binding. The committee meets twice a year in Vienna to exchange information and review the trigger list.11

Nuclear Suppliers Group (NSG):

NSG, also known as the London Club, is a group of suppliers of nuclear material committed to the nonproliferation of nuclear weapons. As an export control regime, NSG operates through a set of export guidelines. NSG Guidelines are adopted by consensus and implemented voluntarily at the national level. The guidelines are consistent with and complement the NPT and various NWFZs. NSG Guidelines govern both nuclear material and dual-use technology. Members are admitted to the NSG based on their ability to supply nuclear- related items, their enforcement of domestic export controls, and their compliance with the NPT

10 “Nuclear Weapon Free Zones,” UN Office of Disarmament Affairs, . 11 “Zangger Committee,” Nuclear Threat Initiative, .

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and IAEA Safeguards. Since 1975, the NSG has grown to 46 member states, with the European Commission as a permanent observer.12

Australia Group (AG):

The AG is an export control regime aimed at limiting the proliferation of chemical and biological weapons (CBW). The regime operates through national level export licensing for necessary inputs banned under the CWC and BTWC. The group’s 41 members meet annually in Paris to review standards and suggest improvements. The AG was formed in 1985 in response to the use of chemical weapons in the Iran-Iraq War. Evidence that Iraq had obtained materials for its program from the international chemical industry prompted concerned states to impose export controls. AG harmonizes the export control measures of its member states. Items licensed through the AG include CBW equipment; bio-weapon agents and organisms; dual-use chemical and biological equipment; plant and animal pathogens; and chemical precursors. Since AG is a voluntary organization, the member states have no legally-binding obligations. Compliance is reinforced, however, by the fact that all group members are parties to the CWC and BTWC.13

Missile Technology Control Regime (MTCR):

The MTCR is an informal association of states with a common interest in the nonproliferation of missiles and associated technologies. The regime aims to limit the risks of WMD proliferation by controlling the transfer of delivery systems. MTCR guidelines include national control laws, a common control list, information sharing, and exceptions for space programs. The transfer of complete rockets and delivery systems is severely restricted, while the transfer of propulsion and launch components is less restricted. The G-7 created the MTCR in 1987, and the regime has grown to 34 member states since then. Other states, including China,

12 “Nuclear Suppliers Group,” Nuclear Threat Initiative, . 13 “Australia Group”, Nuclear Threat Initiative, .

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India, and Israel, have pledged to abide by MTCR guidelines. The MTCR has no formal enforcement mechanisms, leaving this task to the discretion of its member states. The United States prefers a sanctions-based approach to enforcement. Very few sales of long-range (over 600 km) missiles have taken place since the creation of the MTCR.14

Wassenaar Arrangement:

The 1995 Wassenaar Arrangement is an export control regime focused on conventional arms and dual-use technologies. The regime promotes transparency regarding transfers of arms and dual-use technologies, complementing existing control regimes for WMD and delivery systems. Through national policies, member states seek to ensure that weapons transfers do not contribute to destabilizing buildups. The 41 Wassenaar states meet regularly in Vienna and make decisions based on consensus. The Wassenaar Arrangement has no formal enforcement measures, but its members are encouraged to adopt non-binding best practices.15

Proliferation Security Initiative (PSI):

PSI is a global voluntary network of states organized to interdict the illicit transfer of WMD. PSI is neither a treaty and nor formal organization with staff. PSI enhances existing export control enforcement by facilitating cooperation amongst its members. The member states abide by a Statement of Interdiction Principles governing interdiction of WMD, delivery systems, and related materials. Member states pledge to streamline information sharing, strengthen domestic laws, and take action against suspected vessels or aircraft. The creation of

14 “Missile Technology Control Regime”, Nuclear Threat Initiative, . 15 “Wassenaar Arrangement”, Nuclear Threat Initiative, .

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PSI was spurred by the 2002 discovery of a ship carrying North Korean missiles to Yemen. Established in 2003, PSI now has 102 state participants.16

United Nations Security Council Resolution (UNSCR) 1540:

UNSCR 1540, adopted in 2004, declares the proliferation of biological, chemical, and nuclear weapons a threat to international security. The resolution obliges states to prevent non- state actors from acquiring, manufacturing, possessing, or using these weapons and their delivery systems. All states are obligated to adopt legislation to prevent proliferation of the weapons and delivery systems, including domestic controls over related materials. The 1540 Committee established by the resolution monitors implementation, facilitates assistance, and encourages cooperation. The resolution does not alter state obligations under the NPT, Chemical Weapons Convention, or Biological Weapons Convention. All states are required to abide by UNSCR 1540 regardless of their status with the other treaties. UNSCR 1540’s mandate was extended three times and is set to expire in 2021.17

Nuclear Terrorism Convention:

Adopted by the United Nations General Assembly in 2005, the Nuclear Terrorism Convention is designed to supplement the Convention on the Physical Protection of Nuclear Material (CPPNM). While the CPPNM deals with nuclear material used for peaceful purposes, the Nuclear Terrorism Convention extends states’ obligations to protect all nuclear material. The convention calls on states to prosecute non-state actors involved in nuclear terrorism and to share information in pursuit of this goal. The Nuclear Terrorism Convention entered into force in 2007

16 “Proliferation Security Initiative”, Nuclear Threat Initiative, . 17 “United Nations Security Council Resolution 1540”, United Nations 1540 Committee, .

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and has 83 state parties. Several nuclear weapons states, including Israel, France, and the United States, have not ratified the convention.18

Global Initiative to Combat Nuclear Terrorism:

The Global Initiative to Combat Nuclear Terrorism, or GICNT, launched in 2006 by the United States and Russia, aims to improve global capacity to prevent, detect, and respond to nuclear terrorism. GICNT’s multilateral activities build on the work of UNSCR 1540, the CPPNM, and the Nuclear Terrorism Convention. GICNT currently has 85 state partners and 4 international organization observers. Members are committed to improving the security of nuclear materials and facilities, as well as enhancing capabilities to detect and prevent illicit trafficking. GICNT holds workshops and exercises to share best practices and strengthen collaboration.19

Arms Control Limited Test Ban Treaty (LTBT):

The LTBT is one of the oldest nuclear agreements still in force today. The LTBT prohibits the testing of nuclear weapons in the atmosphere, in outer space, and under water. The treaty aims to curb the harmful environmental and public health effects of above-ground nuclear testing. Signed in 1963, the LTBT entered into force the same year. The treaty arose out of negotiations between the Soviet Union, the United Kingdom, and the United States. China and France, the other two nuclear powers at the time, did not sign the treaty.20 The Comprehensive Nuclear Test Ban Treaty, which opened for signature in 1996, supersedes the LTBT. The LTBT will remain relevant, however, until the CTBT enters into force.

18 “International Convention for the Suppression of Acts of Nuclear Terrorism”, Audiovisual Library of International Law, . 19 “Global Initiative to Combat Nuclear Terrorism”, Nuclear Threat Initiative, undated, . 20 “Limited Test Ban Treaty”, US Department of State, undated, .

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Verification was a primary concern during the negotiation of the LTBT. The United States required that any agreement have reliable means of verification. Although the negotiating parties initially wanted to ban all nuclear testing, technical limitations on the detection of underground tests inhibited agreement on a comprehensive ban. As a result, the final treaty only banned nuclear tests in the atmosphere, in outer space, and under water. Compliance within these realms could be adequately verified with existing detection mechanisms.21

Intermediate-Range Nuclear Forces Treaty (INF):

The INF treaty between the United States and the Soviet Union eliminated an entire class of nuclear delivery systems from their respective arsenals. The treaty mandates the destruction of all ground-launched ballistic and cruise missiles with ranges between 500 and 5,500 kilometers, along with their launchers and support structures. Signed in 1987 and entered into force in 1988, the INF treaty is still in force. Since most intermediate-range missiles were deployed in the European theater, the INF treaty has had its greatest impact in Europe.22

Strategic Arms Reduction Treaty (START):

START was the first treaty to make deep cuts to Soviet and American strategic nuclear arsenals. The treaty sets limits of 6,000 deployed warheads and 1,600 deployed delivery vehicles for each side. START cut strategic warhead arsenals by approximately 35%. The treaty also bans the production of new types of heavy ICBMs and SLBMs, as well as missiles with more than ten warheads. Under START, verification is accomplished by National Technical Means, data exchange, and on-site inspections. The treaty was signed in 1991 by the United States and the Soviet Union. The 1992 Lisbon Protocol adapted START’s provisions to the

21 Ibid. 22 “Intermediate Range Nuclear Forces Treaty”, US Department of State, .

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successor states of the recently-dissolved Soviet Union. Belarus, Kazakhstan, Russia, and Ukraine assumed the treaty obligations of the Soviet Union. As part of the agreement, Belarus, Kazakhstan, and Ukraine promised to adhere to the Non-Proliferation Treaty. START entered into force in 1994 and remained in force until December 2009.23 The New START treaty, signed in April 2010, continues and expands upon the work of START.

Comprehensive Nuclear Test Ban Treaty (CTBT): The CTBT aims to prohibit worldwide the testing of nuclear weapons. The CTBT expands on the Limited Test Ban Treaty of 1963, which prohibits testing in the atmosphere, in outer space, and under water. Opened for signature in 1996, the treaty obligates member states to not carry out any nuclear explosions. The CTBT will enter into force once all of a group of 44 states have ratified the treaty. The listed states are members of the United Nations Conference on Disarmament who operate nuclear reactors. Only 35 of the 44 states have ratified the treaty, so the CTBT has not yet entered into force. Pakistan, India, and North Korea have not signed the treaty. The United States, China, Egypt, Israel, and Iran have signed but not ratified the CTBT.24

The International Monitoring System (IMS) provides verification for the CTBT. The IMS consists of monitoring stations, on-site inspections, consultations, and confidence-building measures. A series of 321 seismological, radionuclide, hydro-acoustic, and infrasound stations monitor for signs of a nuclear explosion. An Executive Council approves requests for on-site inspections. Compliance with the treaty can be enforced through sanctions, and noncompliance may be referred to the United Nations.25 If implemented fully, the CTBT will have a powerful effect on both horizontal and vertical nuclear proliferation. Current nuclear powers will be dissuaded from developing new

23 “START I”, Nuclear Threat Initiative, . 24 “Comprehensive Nuclear Test Ban Treaty”, Nuclear Threat Initiative, . 25 Ibid.

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weapons if they cannot carry out tests. Aspiring nuclear powers will find it difficult to develop a credible deterrent capability without nuclear testing.

Strategic Offensive Reductions Treaty (SORT): SORT sets limits on the number of strategic nuclear warheads deployed by the United States and Russia. Each party to the treaty may have between 1,700 and 2,200 strategic warheads. The treaty permits each party to determine the composition and structure of its strategic weapons, so long as it abides by the provisions of START. A Bilateral Implementation Committee meets twice a year to discuss progress on the treaty’s goals. Although SORT stipulates no verification measures, a 2002 Joint Statement by the United States and Russia declares that the START treaty will provide the basis for verification and transparency. SORT, also known as the Moscow Treaty, was signed in 2002 and entered into force in 2003. In 2010, the New START treaty superseded SORT with its entry into force.26

New Strategic Arms Reduction Treaty (New START): New START is a follow-up on the original START agreement signed in 1991. The bilateral treaty limits the United States and Russia to 1,550 deployed strategic warheads and 700 deployed launchers (ICBMs, SLBMs, and heavy bombers) each. New START does not place any constraints on US missile defense or conventional long-range strike programs. The mandated reductions must take place within seven years of the treaty coming into force. The Bilateral Consultative Commission oversees treaty implementation. Treaty verification is accomplished using the same tools and procedures as the original START agreement.27

26 “Strategic Offensive Reductions Treaty”, Nuclear Threat Initiative, . 27 “New START”, Nuclear Threat Initiative, .

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Combined Approach Geneva Protocol: The Geneva Protocol prohibits the use in warfare of asphyxiating or poisonous gases and bacteriological weapons. Opened for signature in 1925, the protocol relies on voluntary compliance and has no verification mechanisms. The Geneva Protocol does not prohibit the production, development, or stockpiling of weapons. The protocol is chiefly concerned with the use of biological or chemical weapons against another state, and does not address internal conflicts. Many signatories declared reservations preserving their right to use biological or chemical weapons in retaliation for first use. With these reservations, the Geneva Protocol became a no-first-use agreement. The protocol was eventually succeeded by the Biological and Toxin Weapons Convention of 1972 and the Chemical Weapons Convention of 1993.28

Biological and Toxin Weapons Convention (BTWC): The BTWC, signed in 1972, prohibits the development, production, and stockpiling of biological agents or toxins for use in warfare. Delivery systems for biological agents are also prohibited. States may only possess biological agents or toxins for prophylactic, protective, or other peaceful purposes. Signatories are obligated to destroy or divert to peaceful purposes all biological weapons and associated equipment within nine months of entry into force. The BTWC prohibits states from transferring biological weapons or assisting other states in their manufacture. While the use of biological weapons is not explicitly forbidden in the treaty text, the 1996 Treaty Review Conference confirmed that use would be a violation of the convention. 164 states have ratified the convention, but 19, including Israel, remain outliers. Most of the non-signatories are African states.29

28 “Geneva Protocol”, Nuclear Threat Initiative, . 29 “Biological and Toxin Weapons Convention”, Nuclear Threat Initiative, .

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The BTWC has no formal verification mechanisms. Signatories are encouraged to undertake confidence-building measures such as consultation and lodging of complaints with the UNSC. Efforts to implement a verification protocol have so far been unsuccessful. Research for protective purposes may be difficult to distinguish from offensive weapons production. Any nation with an advanced pharmaceutical industry has the capability to make biological weapons, making verification difficult.30 Conference on Disarmament (CD): The CD, established in 1979, is a multilateral disarmament negotiating forum for United Nations member states. The conference is run and hosted by the United Nations Office at Geneva. Currently, the CD focuses on nuclear disarmament, preventing nuclear war, security assurances to NNWS, and new types of WMD. The CD meets in an annual session and has 65 member states. The conference sets its own agenda and conducts its work by consensus. The CD considers the recommendations of the General Assembly, and reports to the assembly annually. In the past, CD has negotiated the NPT, the BTWC, the CWC, and the CTBT.31 Since the negotiation of the CTBT in 1996, the CD has remained deadlocked. Its members have been unable to reach a consensus on a program of work due to disagreements and competing priorities. Important items under consideration by the CD include a fissile material cut-off treaty, a nuclear disarmament treaty, and nuclear security assurances.32 Cooperative Threat Reduction Program (CTR): Also known as Nunn-Lugar, the CTR program works to secure and dismantle WMD and their associated infrastructure in the former Soviet Union. CTR was the result of a 1991 bill sponsored by Senators Sam Nunn and Richard Lugar. The Defense Threat Reduction agency administers the program. CTR helps former Soviet states meet the requirements of arms control treaties through the provision of funding and expertise. While the program initially focused on

30 Ibid. 31 “Disarmament: An Introduction to the Conference”, UN Office at Geneva, . 32 “Conference on Disarmament”, Nuclear Threat Initiative, .

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the threat of nuclear proliferation, it has subsequently expanded to include biological and chemical weapons. CTR helped Kazakhstan, Ukraine, and Belarus to achieve NNWS status in 1995 and 1996. In 2004, the program expanded outside the former Soviet Union to assist Albania in eliminating its chemical weapons stockpile. CTR has deactivated over 7,500 nuclear warheads, neutralized chemical weapons, safeguarded fissile materials, and converted weapons facilities for peaceful use.33 Nunn-Lugar is set to expire in June 2013 after Russia refused to extend the program. United States and Russian officials are in the process of discussing the parameters of a replacement program. Future agreements may include shared costs and responsibilities, as well as joint projects in third-party countries.34 Chemical Weapons Convention (CWC): The CWC prohibits the production, acquisition, stockpiling, transfer, or use of chemical weapons by state parties. All state parties must enforce the convention with regards to individuals in their jurisdiction. CWC signatories agree to destroy any stockpiles of chemical weapons and their production facilities. The CWC establishes a verification regime for certain toxic chemicals to ensure that they are only used for peaceful purposes. A key component of the verification regime is the challenge inspection, whereby any state party can request an inspection of another state party at any time and place. Opened for signature in 1993, the CWC entered into force in 1997.35 The Organisation for the Prohibition of Chemical Weapons (OPCW) is the implementing body of the CWC. Headquartered in The Hague, Netherlands, the OPCW conducts inspections and resolves technical disputes between state parties. The 188 state parties to the CWC make up the OPCW’s membership. The eight nonmembers include Israel, Egypt, Syria, and North Korea. The OPCW provides support to nonmember states preparing to join the CWC.36

33 “Cooperative Threat Reduction Program”, Defense Threat Reduction Agency, . 34 Chernenko, Yelena. “Russia, U.S. may sign a new arms disposal agreement”, Kommersant, February 5, 2013, . 35 “Chemical Weapons Convention”, Organisation for the Prohibition of Chemical Weapons, . 36 “About OPCW”, Organisation for the Prohibition of Chemical Weapons, .

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Global Partnership Against the Spread of WMD: The Global Partnership against the Spread of WMD is an initiative by the G8 countries to combat proliferation of WMD. Also known as the “10 plus 10 over 10” initiative, the agreement commits $20 billion over ten years to assist Russia and other countries in eliminating their stockpiles of WMD. The United States committed $10 billion, while the other 7 countries contributed the remaining $10 billion. Conceived in 2002, the partnership was set to expire in 2012. At the 2011 G8 summit, however, the partnership was renewed for another decade with new funding pledges.37 Global Threat Reduction Initiative (GTRI): The National Nuclear Security administration established GTRI in 2004 with a mission to identify, secure, and dispose of high-risk nuclear and radiological materials at civilian sites around the world. GTRI has three main objectives: convert reactors and facilities from highly- enriched to low-enriched uranium; remove excess nuclear and radiological materials; and protect high-priority materials from theft. GTRI’s work helps deny civilian nuclear materials to terrorists around the world.38

37 “Global Partnership against the Spread of Weapons of Mass Destruction”, Nuclear Threat Initiative, . 38 “GTRI: Reducing Nuclear Threats”, National Nuclear Security administration, .

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Annex 2: PSI Timeline

• October 2001: United States begins negotiations with Libya to resolve the Pan Am 103 litigation. • 16 October 2002: The United States confirms that North Korea stated that during talks that North Korea did have a secret nuclear arms program. • Winter 2002: National Security Council organizes the Interdiction Policy Coordinating Committee to conduct a study of the So San interdiction and subsequent events. The study identifies and need for a better understanding of interdiction “rules of the road.” After the findings of the study are approved, the NSC begins developing the study into a presidential initiative. • December 9, 2002: Spanish ship Navarro interdicts the So San. The So San is turned over to the United States and the United States seizes the cargo, including SCUD missiles and fuel. • December 10, 2002: United States issues the National Strategy to Combat Weapons of Mass Destruction. • December 11, 2002: Following Yemeni complaints, the United States releases the So San and its cargo which immediately proceeds to Yemen. • December 12, 2002: North Korea states that it will reactivate its nuclear facilities for energy generation. • December 13, 2002: North Korea requests that the IAEA remove seals and surveillance equipment from Yongbyon. • December 22, 2002: North Korea removes monitoring devices from Yongbyon. • December 26, 2002: The IAEA expresses concern in the light of United Nations confirmation that 1,000 fuel rods were moved to the Yongbyon reactor. • December 27, 2002: North Korea expells the two IAEA nuclear inspectors and states that it intends to reopen a reprocessing plant capable of producing weapons grade plutonium within months. • January to June 2003: Libya begins rapidly enhancing its nuclear infrastructure. This includes conducting talks with Russia involving the Libyan Tajura Nuclear Research Center, ramping up

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its ballistic missile efforts and reestablishes contacts with the A. Q. Khan network. There are also indications that Libya is interested in dual-use biological capabilities. • January 6, 2003: The IAEA passes a resolution demanding North Korea readmit United Nations inspectors and abandon its secret nuclear weapons program "within weeks." • January10, 2003: North Korea announces its intention to withdraw from the Nuclear Non- Proliferation Treaty. • February 12, 2003: The IAEA finds North Korea in breach of nuclear safeguards agreement. North Korea is referred to the United Nations Security Council. • February 24, 2003: North Korea fires one missile into the Sea of Japan. • March 10, 2003: North Korea fires second missile into the Sea of Japan. • March 20, 2003: Operation Iraqi Freedom begins. • May 31, 2003: At the Wawel Castle in Krakow, Poland US President George Bush proposes the Proliferation Security Initiative. • June 2, 2003: Treaty between the United States of America and the Russian Federation on Strategic Offensive Reductions (SORT) enters into force. • June 12, 2003: First PSI Core Group is convened in Madrid, Spain. • June 30, 2003: Operational Experts Working Group meeting is held in London, England. • July 2003: Libyan leader Gadhafi announces that though Libya has uranium, it has no intention of developing nuclear weapons. • July 9-10, 2003: Second PSI Core Group meets in Brisbane, Australia. At this event, the first Operational Experts Working Group (OEG) meeting is held. • July 22, 2003: Saddam Hussein's sons Uday and Qusay are killed by United States task force. • August 2003: Libyan leader Gadhafi offers to allow international inspections of industrial sites in search of biological and chemical weapons. • August 15, 2003: Libya accepts responsibility for the Lockerbie bombing agreeing to pay each victim’s family up to $10 million USD. • August 27–29, 2003: China convenes the first “Six Party Talks” in Beijing. • September 3-4, 2003: The third PSI Core Group meeting and follow-on Operational Experts Group meeting is held in Paris, France.

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• September 4, 2003: The Statement of Interdiction Principles which form the basis of PSI membership are released. • September 2003: The United Nations Security Council lifts Sanctions on Libya. The United States and France abstain. • September 10-13, 2003: The maritime exercise Pacific Protector is held in the Coral Sea. Australia, a key foundational member of PSI, takes the lead for this event. • September 11, 2003: Ten other states join the Proliferation Security Initiative (PSI). • October 3, 2003: The BBC China is interdicted containing a shipment of nuclear enrichment centrifuge components bound from an A.Q. Khan-related facility in Malaysia to Libya. • October 8-10, 2003: OEG working group meeting and air interception command post exercise, held in London, England.

• October 9-10, 2003: Parallel to the OEG, the fourth PSI Core Group meeting is also held in London, England. • October 13-17, 2003: Organized and conducted by Spain, the maritime exercise SANSO 2003 is held in the Mediterranean. Sea • November 25-27, 2003: Developed and led by France, exercise BASILIC 2003is held in the Mediterranean Sea. • November 26, 2003: The IAEA Board of Governors condemns Iran´s pursuit of clandestine nuclear activities. Notes a clear violation of Iran’s IAEA safeguards agreement. • December 13, 2003: Saddam Hussein captured near Tikrit, Iraq in Operation Red Dawn. • December 16-17, 2003: National Defense University hosts the first Operational Experts Group (OEG) meeting Washington, DC independent of the Core Group meetings. • December 18, 2003: Iran signs the Additional Protocol to its IAEA safeguards agreement. • December 19, 2003: Libya announces that it will rollback not only its nuclear program but also all of its WMD programs and that it will allow full and transparent international verification during the dismantlement of its WMD programs. • January 6, 2004: Libya ratifies the CTBT and becomes a state party to the Chemical Weapons Convention.

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• January 11-17, 2004: Maritime exercise SEA SABER, led by the United States conducted in the Arabian Sea. • February 4, 2004: Abdel Qadeer Khan makes a live public confession on Pakistani television detailing his involvement in Khan Research Labs’ illegal nuclear activities. Khan receives a conditional pardon and is confined to house arrest until he is released in February 2009. • February 12, 2004: At National Defense University in Washington, DC, President George Bush details the interdiction of the BBC China interdiction calling for the expansion of PSI to additional states as well as additional areas such as intelligence and law enforcement. • February 19, 2004: Italian led air interdiction exercise AIR BRAKE conducted in Italy. • March 4-5, 2004: Final Core Group meeting in Lisbon, Portugal. This meeting included Canada, Norway and Singapore as well as the eleven foundational PSI members. • March 10, 2004: Libya signs the Additional Protocol with the IAEA. • March 31-April 1, 2004: German led customs exercise HAWKEYE conducted. • April 16-17, 2004: OEG meeting in Ottawa, Canada • April 19-22, 2004: Maritime exercise CLEVER SENTINEL conducted in the Mediterranean Sea and led by Italy. • April 28, 2004: United Nations Security Council issues Resolution 1540 on WMD and delivery system proliferation. Resolution 1540 requires all states to criminalize proliferation by non-state actors and urges cooperative action to prevent proliferation. • May 31-June 1, 2004: PSI first anniversary meeting in Krakow, Poland. All PSI partners invited with over 60 attending. • June 23-23, 2004: Simulated air interception exercise Apse led by France held. • August 3-4, 2004: OEG Container Shipping Workshop in Copenhagen, Denmark. • August 5-6, 2004: OEG meeting in Oslo, Norway. • September 27 - October 1, 2004: United States holds PSI Gaming Exercise. • October 25-27, 2004: Maritime interdiction exercise TEAM SAMURAI held and led by Japan. • November 8-18, 2004: Maritime interdiction exercise CHOKEPOINT, led by the United States, held.

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• November 14, 2004: Iran agrees to suspend most of its uranium enrichment under a deal with Britain, France and Germany, also known as the EU-3. • November 30 - December 2, 2004: Australia hosts OEG meeting in Sydney, Australia. • March 21-22, 2005: OEG meeting hosted by the US Strategic Commend is held in Omaha, Nebraska. • April 8-12, 2005: Maritime and ground interdiction exercise NINFA conducted by Portugal. • May 1, 2005: North Korea fires a short-range missile into the Sea of Japan, on the eve of a meeting of members of the international Non-Proliferation Treaty. • June 1-2, 2005: Exercise BOHEMIAN GUARD 05. Regional ground interdiction exercise led by the Czech Republic and Poland. • June 7-8, 2005: Exercise BLUE ACTION 05. Air/ground interdiction exercise led by Spain. • July 6-7, 2005: OEG meeting in Copenhagen, Denmark • August 8, 2005: Iran begins to feed uranium ore concentrate into the first part of the process line at its Uranium Conversion Facility. • August 10, 2005: Iran begins to remove International Atomic Energy Agency seals at the Uranium Conversion Facility in Esfahan. • August 15-19, 2005: Exercise DEEP SABRE. Maritime/ground interdiction exercise, led by Singapore. • September 14-15, 2005: OEG Air Cargo Industry Workshop in Los Angeles, California. • October 3-7, 2005: PSI Air Gaming Exercise, led by Norway. • October 14, 2005: International Maritime Organization Diplomatic Conference in London, England adopts the 2005 Protocol to the amended Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (2005 SUA Protocol). • November 14-19, 2005: Exercise EXPLORING THEMIS. Maritime/command post interdiction exercise, led by the United Kingdom. • November 24-26, 2005: Regional OEG meeting in Hamburg, Germany • January 10, 2006: International Atomic Energy Agency (IAEA) inspectors confirm that Iran has started to remove IAEA seals on enrichment-related equipment and material at Natanz and at two other locations.

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• February 2, 2006: Director of National Intelligence, John D. Negroponte testifies to the Senate Select Committee on Intelligence regarding Iran’s nuclear capabilities. According to Negroponte, “We [the National Intelligence Community] judge that Tehran probably does not yet have a nuclear weapon and probably has not yet produced or acquired the necessary fissile material.” He also said that Iran is seeking a nuclear weapon and it “is reason for immediate concern.” He added that if Iran continues on its current path, it "will likely have the capability to produce a nuclear weapon within the next decade." • February 17, 2006: The United States signs the 2005 SUA Protocol. • March 16, 2006: President George W. Bush presents the United States National Security Strategy of 2006. The NSS states that “The proliferation of nuclear weapons poses the greatest threat to our national security. Nuclear weapons are unique in their capacity to inflict instant loss of life on a massive scale. For this reason, nuclear weapons hold special appeal to rogue states and terrorists.” The report goes on to state that “We may face no greater challenge from a single country than from Iran.” • March 29, 2006: The United Nations Security Council issues a Presidential Statement calling on Iran to re-establish full and sustained suspension of all enrichment-related and reprocessing activities, including research and development. The Statement notes with concern the International Atomic Energy Agency Director General Statement of February 27. • April 4-5, 2006: Exercise TOP PORT. Maritime/command post interdiction exercise, led by the Netherlands. • April 4-6, 2006: Exercise PACIFIC PROTECTOR 06. Air/command post interdiction exercise, led by Australia. • April 11-12, 2006: OEG meeting in Miami, Florida. • May 8, 2006: Iranian President Mahmoud Ahmadinejad sends an 18-page letter to President George W. Bush in which he discusses “undeniable contradictions that exist in the international arena.” • May 24-26, 2006: Exercise ANATOLIAN SUN. Combined air, land and sea command post and live interdiction exercise, led by Turkey. • June 21-22, 2006: Exercise HADES 06. Air interdiction exercise, led by France.

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• June 23, 2006: High-Level Political Meeting at Warsaw, Poland. • July 4, 2006: North Korea test-fires at least six missiles, including a long-range Taepodong-2, despite repeated warnings from the international community. • July 6, 2006: North Korea test-fires a seventh missile, despite international condemnation of its earlier launches. • July 6, 2006: North Korea announces it would continue to launch missiles, as well as "stronger steps", if international countries were to apply additional pressure as a result of the latest missile launches, claiming it to be their sovereign right to carry out these tests. • July 25-26, 2006: OEG meeting in Singapore. • July 31, 2006: The United Nations Security Council adopts Resolution 1696 under Article 40 of Chapter VII of the United Nations charter. The resolution gives Iran until August 31, 2006 to “suspend all enrichment-related and reprocessing activities, including research and development” or face potential economic and diplomatic sanctions. • August 29, 2006: As Iranian nuclear specialists begin enriching a new batch of uranium, President Ahmadinejad challenges President Bush to a live televised debate. • September 13-15, 2006: Exercise AMBER SUNRISE. Maritime/ground exercise, led by Poland, Denmark, Russia and Sweden. • September 25-26, 2006: OEG Maritime Industry Workshop in London, England. • October 9, 2006: North Korea announces that it has performed its first-ever nuclear weapon test. The country's official Korean Central News Agency said the test was performed successfully and there was no radioactive leakage from the site. South Korea's Yonhap news agency said the test was conducted at 10:36 a.m. in Hwaderi near Kilju city, citing defense officials. • October 10-31, 2006: Exercise LEADING EDGE. Command post and maritime/ground interdiction exercise in the Persian Gulf, led by the United States. • October 14, 2006: The United Nations Security Council passed United Nations Resolution 1718, imposing sanctions on North Korea for its announced nuclear test on 9 October 2006 that include largely symbolic steps to hit the North Korea's nuclear and missile programs, a reiteration of financial sanctions that were already in place, as well as keeping luxury goods away from its leaders, for example French wines and spirits or jet skis. However, the sanctions do not have the

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full support of China and Russia.[30] The resolution was pushed in large part by the administration of George W. Bush, whose party at the time was engaged in an important mid- term election. • November 8, 2006: The day after Republicans receive an electoral “thumpin’,” President Bush announces that Secretary of Defense Donald Rumsfeld will step down and Robert Gates, president of Texas A&M University, will be nominated to replace him. • December 5-7, 2006: OEG meeting in Montreal, Canada. • January 10, 2007: In a televised address to the United States public, Bush proposed 21,500 more troops for Iraq, a job program for Iraqis, more reconstruction proposals, and $1.2 billion for these programs. • January 31 – February 1, 2007: Proliferation Finance Workshop in Washington, DC • March 26-28, 2007: OEG meeting in Auckland, New Zealand • April 26-27, 2007: Exercise SMART RAVEN. Air interdiction exercise, led by Lithuania. • May 27-29, 2007: Exercise ADRIATIC GATE. Ground/port interdiction exercise, led by Slovenia. • June 18-22, 2007: PSI Gaming Exercise, led by the United States. • June 25, 2007: North Korea announces resolution of the banking dispute regarding $25 million USD in DPRK assets in Macau's Banco Delta Asia • August 29 - September 2, 2007: Exercise PANAMAX 07. Southern Command regional exercise including PSI scenario, led by the United States. • October 1, 2007: President Bush submits the 2005 SUA Protocol to the US Senate for advice and consent to ratification. • October 2-4, 2007: OEG meeting in Rhodes, Greece • October 12-15, 2007: Exercise PACIFIC SHIELD 07. Maritime/port interdiction exercise, led by Japan. • October 29-31, 2007: Exercise EASTERN SHIELD 07. Combined air, ground and maritime interdiction exercise, led by Ukraine. • February 4-6, 2008: OEG meeting in London, England.

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• March 10-12, 2008: Exercise GUISTIR 08. Maritime/port interdiction exercise, led by Djibouti and France. • April 8-22, 2008: Exercise PHOENIX EXPRESS 08. Maritime interoperability exercise in the Mediterranean including PSI scenarios, led by the United States. • May 12-14, 2008: Exercise ADRIATIC SHIELD 08. Maritime/port interdiction exercise, led by Croatia. • May 28, 2008: Fifth Anniversary Senior-Level Meeting at Washington, DC. • May 28-29, 2008: OEG Outreach Workshop in Washington, DC • August 11-22, 2008: Exercise PANAMAX 08. Maritime interoperability exercise in the Mediterranean including PSI scenarios, led by the United States. • September 15-19, 2008: Exercise MARU. Maritime/port command post and live exercise, led by New Zealand. • September 25, 2008: The US Senate provides advice and consent to ratification of the 2005 SUA Protocol. • September 25-26, 2008: OEG meeting in Paris, France. • October 11, 2008: The United States removes North Korea from its State Sponsors of Terrorism list. • April 5, 2009: President Obama endorses PSI and calls for its institutionalization in a speech on proliferation and arms control policy in Prague, Czech Republic. • May 25, 2009: North Korea tests its second nuclear device.

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Annex 3: PSI Endorsing States1

Afghanistan Liberia Albania Libya Andorra Liechtenstein Angola Lithuania Antigua and Barbuda Luxembourg Argentina Macedonia Armenia Malaysia Australia Malta Austria Marshall Islands Azerbaijan Moldova Bahamas, The Mongolia Bahrain Montenegro Belarus Morocco Belgium The Netherlands Belize New Zealand Bosnia Norway Brunei Darussalam Oman Bulgaria Panama Cambodia Papua New Guinea Canada Paraguay Chile Philippines Colombia Poland Croatia Portugal Cyprus Qatar

1 US Department of State, “Proliferation Security Initiative Participants”, Bureau of International Security and Nonproliferation, June 9, 2015, .

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Czech Republic Romania Denmark Russia Djibouti Samoa Dominica Saudi Arabia Dominican Republic San Marino El Salvador Serbia Estonia Singapore Fiji Slovakia Finland Slovenia France Spain Georgia Sri Lanka Germany St. Lucia Greece St. Vincent and the Grenadines Holy See Sweden Honduras Switzerland Hungary Tajikistan Iceland Thailand Iraq Trinidad and Tobago Ireland Tunisia Israel Turkey Italy Turkmenistan Japan Ukraine Jordan United Arab Emirates Kazakhstan United Kingdom Korea, Republic of United States Kyrgyzstan Uzbekistan Kuwait Vanuatu Latvia Vietnam Yemen

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