Tate Zeigler (202-224-5972) or Kevin Bishop (864-250-1417)

Tate Zeigler (202-224-5972) or Kevin Bishop (864-250-1417)

WASHINGTON—Following the Justice Department’s decision to subpoena the phone records of reporters from the Associated Press (AP), U.S. Senators Charles E. Schumer (D-NY) and Lindsey Graham (R-SC) urged their Senate colleagues Thursday to get behind their media shield bill.

The bipartisan legislation offers legal protections to journalists engaged in newsgathering activities, while providing reasonable exceptions in national security cases in order to allow federal law enforcement to compel information that would mitigate terrorist threats.

“The government has a legitimate interest in preventing and investigating leaks of classified information; at the same time, the public has a legitimate interest in a robust free press.  This bill strikes a fair and reasonable balance between those interests, and we urge you to join us in advancing it,” the senators wrote in a letter to their other 98 colleagues.

While it is unclear whether the bill would have changed the outcome in the AP phone records case since a national security exception may have applied, the bill would have set up a legal process for approving the subpoenas that would guarantee consideration of the public’s interest in protecting the freedom of the press. Prosecutors would have to convince a judge that the information at issue would “prevent or mitigate an act of terrorism or harm to national security.” The bill would also have compelled concurrent notice of the subpoena to the AP unless law enforcement could convince a court that special circumstances warranted a delay in the disclosure.

The bill was last considered by the Senate Judiciary Committee in 2009, when it passed 14-5.

A copy of Schumer and Graham’s letter to their fellow senators appears below.

May 16, 2013

Dear Colleague,

We write to encourage you to co-sponsor the Free Flow of Information Act, legislation we are introducing shortly.  In the wake of the debate about the subpoena of Associated Press phone records, it has become even more evident that we need unambiguous and fair rules of the road.

The Free Flow of Information Act, also known as the media shield bill, would provide clear and meaningful protection at the federal level for journalists against improper intrusion into the free press.  The bill would prohibit demands for protected information (such as confidential source information) from journalists unless a court determines that the public interest is better served by disclosure of the information than by protecting the journalist’s source.   The legislation includes carefully crafted exceptions for national security—in cases where a judge finds that the information sought is necessary to prevent terrorism or harm to national security, the information must be disclosed.  However, a judge will still have to approve that request.    In addition, the bill treats requests for records from third parties—such as phone companies—in the same manner as requests from journalists themselves, and requires notice to those journalists when such a request is made.

The legislation we are introducing represents the product of extensive negotiations between the journalism community and the national security experts in the Administration, and has won the support of both the Administration and the Newspaper Association of America.  It passed out of the Senate Judiciary committee by a strong bipartisan vote in 2009.  In sum, the bill is a balanced approach that meets both the needs of the press and the needs of our national security.

The facts in the AP phone records case are still coming to light, so we cannot say for certain whether the bill would have changed the ultimate outcome.  However, it would undoubtedly have ensured a fairer, more deliberate process, and would have set up a legal, predictable framework for a court to approve the subpoenas that would guarantee consideration of the public’s interest in protecting the freedom of the press.

The government has a legitimate interest in preventing and investigating leaks of classified information; at the same time, the public has a legitimate interest in a robust free press.  This bill strikes a fair and reasonable balance between those interests, and we urge you to join us in advancing it.

Sincerely,

Senator Charles E. Schumer

Tate Zeigler (202-224-5972) or Kevin Bishop (864-250-1417)

WASHINGTON – The United States senators representing the states of South Carolina and Georgia – Lindsey Graham (R-South Carolina), Tim Scott (R-South Carolina), Saxby Chambliss (R-Georgia) and Johnny Isakson (R-Georgia) today warned that the Obama administration is jeopardizing the 60-year partnership between the Savannah River Site and both states over its interest in changing the agreed-upon plan to dispose of surplus weapons-grade plutonium.

In 2000, with the signing of the Plutonium Management and Disposition Agreement (PDMA) with the Russian Federation, the United States and Russia agreed to dispose of 68 metric tons of weapons-grade plutonium. The United States’ plan would send American plutonium to the Savannah River Site (SRS) where it would be turned into commercial nuclear fuel (MOX).

In 2010, President Obama hailed the plutonium disposition agreement in a joint press conference with Russian President Dmitry Medvedev, and noted it prevented terrorists from acquiring these materials. Now, the Obama administration is seemingly backing away from the MOX program and the agreements made with the state of South Carolina.

• Delays to the MOX program threaten American national security; 
• Potential alternatives to MOX have already been studied and they fail to meet our economic or nonproliferation needs;
• Reassessment of the MOX program adds billions of additional costs and uncertainty domestically; and
• Plans to again study plutonium disposition alternatives destroy 60 years of collaboration with South Carolina and the Savannah River Site.

“It is with great dismay that your Fiscal Year 2014 budget request risks the future of the PMDA and the MOX program,” wrote the senators.  “Your budget request will result in the breaking of our international agreement with Russia, the stranding of up to 68 metric tons of weapons grade plutonium, the addition of billions of dollars in increased costs to the government, and the violation of commitments the federal government has made to the state of South Carolina.  This is unacceptable and we will be looking to use the confirmation, authorization, and appropriations processes to ensure the program moves forward.”

“A fundamental component to the MOX project involves assurances to South Carolina regarding the ultimate disposition of the plutonium,” said the senators.  “Never before has the local community had their faith in DOE and SRS tested as they do now.  The delays in the MOX program have caused the community to once again fear that the plutonium currently in state will remain there indefinitely.

“The residents of South Carolina and Georgia have always been willing partners of DOE in carrying out missions critical to our national security at SRS,” wrote the senators.  “The residents of the states have never hesitated to support the mission of SRS even though it resulted in the shipment, storage, and use of some of the most dangerous items known to man.  In fact, the community surrounding the site is widely regarded as the most supportive community of any DOE site in the country.  We want to be able to continue this partnership.”

#####

Full text of the letter to President Obama:

May 13, 2013

The Honorable Barack Obama

President of the United States

The White House

1600 Pennsylvania Avenue, N.W.

Washington, D.C. 20500

Dear Mr. President:

On June 24, 2010, on the heels of your Nuclear Security Summit, where you trumpeted a major non-proliferation agreement with Russia, you held a joint press conference with Russian President Medvedev, and stated that, “…to prevent terrorists from acquiring nuclear weapons, we came together at our Nuclear Security Summit, where our two nations made numerous commitments, including agreeing to eliminate enough plutonium for about 17,000 nuclear weapons.”  This statement was the culmination of years of work that began in 2000 with the signing of the Plutonium Management and Disposition Agreement (PMDA) with Russia to dispose of 68 metric tons of weapons grade plutonium.  The program involved sending plutonium to the Savannah River Site (SRS) in South Carolina where it would be turned into commercial nuclear fuel at the Mixed Oxide Fuel Fabrication Facility (MOX).

Now it is with great dismay that your Fiscal Year 2014 budget request risks the future of the PMDA and the MOX program.  Your budget request will result in the breaking of our international agreement with Russia, the stranding of up to 68 metric tons of weapons grade plutonium, the addition of billions of dollars in increased costs to the government, and the violation of commitments the federal government has made to the state of South Carolina.  This is unacceptable and we will be looking to use the confirmation, authorization, and appropriations processes to ensure the program moves forward.

Your recently submitted budget request calls for slowing down the MOX project while the Administration conducts an assessment of alternative plutonium disposition strategies. Officials at the Department of Energy (DOE) and National Nuclear Security Administration (NNSA) have been unable to explain exactly what this means.  They are unable to provide an idea as to who will conduct the study, the length of the study, or the options being studied.  They are unable to explain what the impact of the budget request will have on the construction of the facility, the impact on the schedule for the disposition of plutonium, or a cost estimate for the increased storage costs due to any additional delays that result from the study.  Additionally, nobody has been able to explain how the Administration plans to comply with Section 4306 of the Atomic Energy Defense Act (50 USC 2566) which mandates at least one metric ton of plutonium be processed through MOX or be removed from South Carolina by 2016 or the federal government will be liable for fines to South Carolina of up to $100 million per year.

While we would like to work with you and the contractor to reduce construction and operating costs at MOX, make no mistake; the decision to slow down the plutonium disposition project makes no sense from a national security or an economic point of view.  Your decision violates the commitments that were made to South Carolina and jeopardizes a 60-year partnership between the Savannah River Site (SRS) and the state.  We will not allow this ill-conceived plan to proceed.

Delays to the MOX program threaten our national security 

As a result of your budget request, the U.S. will be forced to notify Russia that it cannot meet the 2018 start date of plutonium disposition as set forth in the PMDA or conversely, that it is withdrawing from its obligations under the PMDA.  In turn, this can be expected to cause Russia to slow down or halt its plutonium disposition efforts.  If this were to happen, 34 metric tons of surplus Russian plutonium would then become available for re-use in nuclear weapons or become subject to an increased risk of theft or diversion.

In addition, delaying plutonium disposition sends a strong signal to the International Atomic Energy Agency (IAEA) and the world community that the U.S. is walking back on its support for nuclear nonproliferation.

Delaying or canceling MOX eliminates the means by which the U.S. is able to dispose of additional quantities of surplus weapons grade plutonium from future stockpile reductions and/or Arms Control Agreements.

Reassessment of the MOX program adds billions of additional costs and uncertainty domestically

While we share your concern about the cost increases associated with the plutonium disposition program, your budget request does nothing to reduce these costs.

A decision to significantly delay construction of the MOX facility would likely kill the overall plutonium disposition effort and leave the U.S. with no means to dispose of its stocks of surplus weapons grade plutonium. This would leave 34 metric tons of plutonium stranded with no disposition path at SRS in South Carolina, Pantex in Texas, and other sites across the country.  As a result, the government will be forced to continue its current program of storing and monitoring this nuclear material indefinitely.  The storage of this material alone costs hundreds of millions of dollars annually.

A decision to slow down or halt MOX construction can be expected to have an adverse impact on operations at Pantex which currently stores the U.S. inventory of surplus and non-surplus plutonium pits.  A significant fraction of Pantex’s pit inventory is destined for fabrication into MOX fuel on a just-in-time processing basis.  Furthermore, current and expected future declines in the active stockpile are expected to increase the number of pits already stored at Pantex, creating a need for tens and perhaps hundreds of millions of dollars to design and construct safe, secure additional pit storage capacity at Pantex in the event that plutonium disposition at SRS does not take place.

Consequently, any significant delay to MOX construction or concomitant funding reduction would lead to the lay off of hundreds of highly-skilled nuclear craft workers employed on the project, workers it takes years and significant cost to hire and train.

Potential alternatives to MOX fail to meet our economic or nonproliferation needs

Studies on how best to dispose of surplus plutonium have been ongoing since 1995.  In 2001, a study prepared for the National Security Council by NNSA, Analysis of Options for U.S. and Russian Plutonium Management and Disposition, evaluated more than 40 approaches for plutonium disposition with 12 distinct options selected for detailed analysis, i.e., six mixed-oxide (MOX)-based reactor disposition options, two advanced reactor disposition options, and four non-reactor options (immobilization and long-term storage).  MOX has always been the best option to meet our nonproliferation goals at the best cost to the taxpayer.

Any alternative to MOX would add years to the plutonium disposition process and would come with additional complications.  For example, if the government were to pursue vitrification, it would take years of additional research and development in order to research, design, license and construct a vitrification facility.  This would be further complicated by the fact that according to NNSA, vitrification/immobilization is no longer an option because there are insufficient quantities of high level waste (HLW) in the SRS waste tanks to immobilize over 40 metric tons of weapons grade plutonium.  Vitrification also fails to meet the nonproliferation goals of putting the plutonium beyond re-use.

With the half-life of plutonium being 24,000 years, the most expensive option was long-term storage because it requires the expenditure of many millions of dollars a year for storage, security, and health physics after which, the U.S. government would still have to pay for disposition.

This plan destroys 60 years of collaboration with South Carolina and the Savannah River Site

Importantly, your current plan will destroy over 60 years of collaboration with South Carolina and Georgia. The residents of South Carolina and Georgia have always been willing partners of DOE in carrying out missions critical to our national security at SRS.  The residents of the states have never hesitated to support the mission of SRS even though it resulted in the shipment, storage, and use of some of the most dangerous items known to man.  In fact, the community surrounding the site is widely regarded as the most supportive community of any DOE site in the country.  We want to be able to continue this partnership.

A fundamental component to the MOX project involves assurances to South Carolina regarding the ultimate disposition of the plutonium.  Never before has the local community had their faith in DOE and SRS tested as they do now.  The delays in the MOX program have caused the community to once again fear that the plutonium currently in state will remain there indefinitely.

During your first term, you made an effort to focus the government’s attention on securing the supply of nuclear weapons around the world.  Cancellation of the MOX program after investing 17 years to study disposition alternatives, completing the necessary environmental reviews, designing the facility, obtaining the necessary Nuclear Regulatory Commission construction license, appropriating and spending hundreds of millions in the effort and completing more that 60% of the actual MOX Facility would be a terrible blemish on DOE’s reputation for completing major construction projects.  After signing an agreement with Russia that has been ratified by the Duma, getting the Director General of the IAEA to agree to monitor plutonium disposition in each country and testifying for years to Congress and the American public about the urgent need to eliminate surplus weapons-usable fissile materials in speeches by various Presidents, National Security Advisers, Secretaries of Energy, Secretaries of State and other senior U.S. government officials, to now cancel the MOX Project would be a major domestic and international embarrassment which will take years to recover from.

Sincerely,

Lindsey Graham

Tim Scott

Saxby Chambliss