S.Amdt. 2331

SA 2331. Mr. CARDIN submitted an amendment intended to be proposed by
him to the bill H.R. 5515, to authorize appropriations for fiscal year
2019 for military activities of the Department of Defense, for military
construction,

[[Page S3247]]

and for defense activities of the Department of Energy, to prescribe
military personnel strengths for such fiscal year, and for other
purposes; which was ordered to lie on the table; as follows:

At the end of title XVI, add the following:

Subtitle G--Commission to Examine the Legal Authorities for the Use of
Nuclear Weapons

SEC. 1671. FINDINGS.

Congress makes the following findings:
(1) Since the advent of the nuclear age, the nuclear
arsenal of the United States has played a critical role in
ensuring United States national security interests and
provided a vital extended deterrent to United States allies
around the globe.
(2) In 1946, the Atomic Energy Act (Public Law 79-585),
also known as the McMahon Act, established into law civilian
control of nuclear weapons.
(3) In 1948, President Harry S. Truman, during a meeting
with David Lilienthal, Chairman of the Atomic Energy
Commission, and other military and Cabinet members,
articulated the inherently political nature of nuclear
weapons, stating, ``You have got to understand that this
isn't a military weapon. It is used to wipe out women and
children and unarmed people, and not for military uses. So we
have got to treat this thing differently from rifles and
cannons and ordinary things like that.''
(4) During the Cold War, the United States faced a rival
nuclear power in the Soviet Union that had the ability to
rapidly launch nuclear weapons and potentially destroy United
States retaliatory strike capabilities.
(5) The United States Government developed nuclear command
and control protocols to counter the Soviet nuclear threat by
providing the President with the unilateral authority to
swiftly identify, assess, communicate, decide, and, if
necessary, launch a nuclear strike.
(6) Today, the Soviet Union no longer exists and the
primary nuclear threats that the United States faces are far
different from the threats of the Cold War, but United States
nuclear command and control protocols remain rooted in Cold
War strategy.

SEC. 1672. APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.

In this subtitle, the term ``appropriate congressional
committees'' means--
(1) the Committee on Foreign Relations, the Committee on
Armed Services, the Committee on Energy and Natural
Resources, and the Select Committee on Intelligence of the
Senate; and
(2) the Committee on Foreign Affairs, the Committee on
Armed Services, the Committee on Energy and Commerce, and the
Permanent Select Committee on Intelligence of the House of
Representatives.

SEC. 1673. ESTABLISHMENT OF THE JOINT COMMISSION.

(a) Establishment.--There is established the Commission to
Examine the Legal Authorities for the Use of Nuclear Weapons
(referred to in this title as the ``Commission'').
(b) Membership.--
(1) Composition.--The Commission shall be composed of 8
members, of whom--
(A) 2 members shall be appointed by the Majority Leader of
the Senate;
(B) 2 members shall be appointed by the Minority Leader of
the Senate;
(C) 2 members shall be appointed by the Speaker of the
House of Representatives; and
(D) 2 members shall be appointed by the Minority Leader of
the House of Representatives.
(2) Qualifications.--
(A) In general.--The appointments under paragraph (1) shall
include--
(i) 2 former military officers;
(ii) 2 lawyers or legal experts;
(iii) 2 former members of Congress or senior officials in
the executive branch; and
(iv) 2 civilian nuclear experts.
(B) Restriction on current officials and military
members.--The Commission may not include any individual
currently serving as a Member of Congress, officer or
employee of the Federal Government, officer or employee of a
State or local government, or member of the Armed Forces.
(C) Political affiliation.--Not more than 4 members of the
Commission may be affiliated with the same political party.
(D) Other qualifications.--The individuals appointed to the
Commission shall--
(i) be United States citizens;
(ii) be prominent and nationally recognized persons with
considerable previous experience in the United States Armed
Forces, public and government service, law, foreign and
national security policy, and emerging technologies; and
(iii) have deep expertise in subjects including the United
States nuclear command and control architecture, nuclear
strategy, the law of armed conflict, and use of force
matters.
(3) Date for appointment.--The appointments of the members
of the Commission shall be made not later than 90 days after
the date of the enactment of this Act.
(c) Period of Appointment; Vacancies.--
(1) In general.--A member of the Commission shall be
appointed for the life of the Commission.
(2) Vacancies.--Any vacancy in the Commission--
(A) shall not affect the powers of the Commission; and
(B) shall be filled in the same manner as the original
appointment.
(d) Initial Meeting.--Not later than 60 days after the date
on which all members of the Commission have been appointed,
the Commission shall hold its first meeting.
(e) Meetings.--
(1) In general.--The Commission shall meet at the call of
the Chairperson or a majority of the members of the
Commission, and at least once every 30 days for the duration
of the Commission.
(2) Quorum.--Six members present for a meeting shall
constitute a quorum, but a lesser number of members may hold
hearings.
(f) Chairperson and Vice Chairperson.--The Commission shall
select a Chairperson and Vice Chairperson from among the
members of the Commission. The Chairperson and Vice
Chairperson may not be of the same political affiliation.

SEC. 1674. DUTIES OF THE COMMISSION.

The Commission shall carry out the following duties:
(1) Examining the full range of nuclear threats facing the
United States and the potential response options available to
the United States, including threats from--
(A) the Russian Federation;
(B) the People's Republic of China;
(C) the Democratic People's Republic of Korea (DPRK);
(D) non-state actors and terrorist organizations; and
(E) countries seeking to acquire nuclear weapons,
materials, and commensurate delivery systems.
(2) Examining how different response options and
declaratory policies would impact United States nuclear
command and control protocols.
(3) Investigating whether the current United States nuclear
command and control protocols, which are rooted in Cold War
era practices for rapidly responding to a massive surprise
nuclear attack from the Soviet Union, remain the optimal
structure for responding to the current and future nuclear
threats the United States faces.
(4) Assessing whether Congress, as the institutional body
authorized to declare war under Article I of the United
States Constitution, has sufficient oversight and input into
the United States nuclear command and control structure, and
how greater inputs from Congress could affect decision-making
within the nuclear command and control chain.
(5) Exploring the constitutional and legal relationship
between a declaration of war or an authorization of military
force by Congress and the use of nuclear weapons.
(6) Exploring the legal obligations of military and
civilian leaders in carrying out a nuclear strike.
(7) Exploring and evaluating potential changes or
alternatives to the current United States nuclear command and
control structure and protocols in comparison to the current
model.
(8) Preparing and submitting the report required under
section 1675.

SEC. 1675. REPORT.

(a) In General.--Not later than one year after the
Commission convenes its first meeting, the Commission shall
submit to the appropriate congressional committees a report
on the United States nuclear strike decision making process.
(b) Elements.--The report required under subsection (a)
shall include the following elements:
(1) A detailed statement of the activities, findings, and
conclusions of the Commission under section 1674.
(2) A set of recommendations for congressional
consideration, including the following matters:
(A) Determinations on whether and how to strengthen
Congress's role and input into the nuclear strike decision-
making process, including potential legislation.
(B) Suggested improvements, changes, or alternative
structures to the United States nuclear command and control
protocols that--
(i) allow the United States to best respond to all current
and future nuclear threats; and
(ii) maintain the constitutional and legal authorities
inherent to the legislative, executive, and judicial branches
of the United States Government.
(C) Policy proposals for best responding to the various
nuclear threats examined pursuant to section 1674.
(D) Best practices for ensuring that nuclear weapons remain
under civilian control due to their inherently political
nature.
(3) Detailed summaries of the advice and recommendations
provided by all outside organizations and leaders to the
Commission.
(c) Classification.--The report required under subsection
(a) shall be submitted and published in unclassified form,
but may include a classified annex.

SEC. 1676. POWERS OF COMMISSION.

(a) Hearings.--The Commission may hold such hearings, sit
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out this subtitle.
(b) Information From Federal Agencies.--
(1) In general.--All Federal departments and agencies
shall, in accordance with applicable procedures for the
handling of classified information, provide reasonable access
to documents, statistical data, and other such information
that the Commission determines necessary to carry out the
functions described under section 1674.

[[Page S3248]]

(2) Obtaining classified information.--The Chairman of the
Commission, in consultation with the Vice Chairman, shall
submit a written request to the head of a Federal department
or agency for access to documents, statistical data, and
other information described in paragraph (1) that is under
the control of such department or agency.
(c) Assistance From Federal Agencies.--
(1) General services administration.--The Administrator of
General Services shall provide to the Commission, on a
reimbursable basis, administrative support and other services
for the performance of the Commission's functions, as well as
sufficient office space for the day-to-day activities of the
Commission.
(2) Other departments and agencies.--In addition to the
assistance prescribed in paragraph (1), Federal departments
and agencies may provide to the Commission such services,
funds, facilities, staff, and other support services as they
may determine advisable and as may be authorized by law.
(d) Authority to Contract.--
(1) In general.--Subject to subtitle I of title 40, United
States Code, and division C of subtitle I of title 41, United
States Code, the Commission is authorized to enter into
contracts with Federal and State agencies, private firms,
institutions, and individuals for the conduct of activities
necessary to the discharge of the functions of the Commission
under section 1674.
(2) Duration.--Any contract, lease, or other legal
agreement entered into by the Commission under this
subsection may not extend beyond the termination date of the
Commission.
(e) Postal Services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other departments and agencies of the Federal Government.
(f) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.

SEC. 1677. COMMISSION PERSONNEL MATTERS.

(a) Compensation of Members.--
(1) In general.--A member of the Commission who is not an
officer or employee of the Federal Government shall be
compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the
Executive Schedule under section 5315 of title 5, United
States Code, for each day (including travel time) during
which the member is engaged in the performance of the duties
of the Commission.
(2) Federal members.--A member of the Commission who is an
officer or employee of the United States shall serve without
compensation in addition to that received for service as an
officer or employee of the United States.
(b) Travel Expenses.--A member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their home or regular places of
business in the performance of services for the Commission.
(c) Staff.--
(1) In general.--An executive director of the Commission
may be appointed and terminated by a majority of 6 members of
the Commission without regard to the civil service laws
(including regulations). The executive director may, without
regard to such laws and regulations, appoint and terminate
such other additional personnel as may be necessary to enable
the Commission to perform its duties.
(2) Compensation.--The Chairperson of the Commission may
fix the compensation of the executive director and other
personnel without regard to chapter 51 and subchapter III of
chapter 53 of title 5, United States Code, relating to
classification of positions and General Schedule pay rates,
except that the rate of pay for the executive director and
other personnel may not exceed the rate payable for level IV
of the Executive Schedule under section 5315 of that title.
(d) Detail of Government Employees.--Any Federal Government
employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption
or loss of civil service status or privilege.
(e) Procurement of Temporary and Intermittent Services.--
The Chairperson of the Commission may, with the approval of 6
members of the Commission, procure temporary and intermittent
services under section 3109(b) of title 5, United States
Code, at rates for individuals which do not exceed the daily
equivalent of the annual rate of basic pay prescribed for
level IV of the Executive Schedule under section 5315 of that
title.

SEC. 1678. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE
ACT.

(a) In General.--The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to the Commission.
(b) Protection of Information in Public Hearings.--Any
public hearings of the Commission shall be conducted in a
manner consistent with the protection of information provided
to or developed for or by the Commission as required under
any applicable statute, regulation, or executive order.

SEC. 1679. SECURITY CLEARANCES FOR COMMISSION MEMBERS AND
STAFF.

(a) In General.--No person shall be provided with access to
classified information under this subtitle without the
appropriate security clearances. The appropriate Federal
agencies or departments shall cooperate with the Commission
to provide, to the extent possible, appropriate security
clearances to Commission members and staff in accordance with
existing procedures and requirements.

SEC. 1680. TERMINATION OF COMMISSION.

The Commission shall terminate 30 days after the date on
which the Commission submits the report required under
section 1675.
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