Congress’s role in the AUKUS nuclear-powered submarine deal

President Joe Biden, British Prime Minister Boris Johnson and Australian Prime Minister Scott Morrison recently announced the creation of a new security pact (AUKUS), and the first order of business is to give Australia access to sensitive nuclear technology for naval nuclear propulsion. Congress will have to review this particular part of the pact — and should carefully consider the implications of the request to transfer this technology to avoid harming the United States’ interests.

U.S. nuclear technology exports

The agreement would make Australia the second country without nuclear weapons to obtain a nuclear-powered submarine. The United States has only shared nuclear propulsion technology with one other country — the United Kingdom — and that was back in 1958. Even back then, the deal required Congress to pass a slew of legislation to allow this transfer. Since then, policies against exporting nuclear military technology have stood unchallenged.

When other countries, such as India and Brazil, showed interest in nuclear-powered submarines, the United States politely declined comment.

These laws and the United States’ policy on non-proliferation have not changed.

Speaking not for attribution, a senior State Department official said, “This technology is extremely sensitive. This is, frankly, an exception to our policy in many respects. I do not anticipate that this will be undertaken in other circumstances going forward. We view this as a one-off.”

What Congress can do

While more specifics of the deal will be hammered out over the next 18 months, Congress can — and should — be skeptical of any “exception” that could weaken nonproliferation policy or insist on changes to avoid proliferation concerns. 

Because the United States and Australia have an agreement that does not allow this sort of military transfer, Congress will get a say in whether it is amended. Section 123 of the U.S. Atomic Energy Act (AEA) of 1954 governs nuclear cooperation between the United States and other countries, laying out nine non-proliferation criteria. As recently as 2010, Congress permitted the Australian “123 agreement” to come into force until at least 2040. That deal, however, pertains only to civilian projects and explicitly forbids the transfer of materials for “military nuclear propulsion.”

The agreement also bans the transfer of fuel defined as “highly-enriched uranium” (HEU), meaning uranium enriched to 20 percent or higher in the isotope Uranium-235 (U-235). All United States nuclear submarines rely on fuel enriched to 93.5 percent in the isotope U-235, which technically qualifies as weapon-grade. A new arrangement with Australia, as well as the overall Foreign Military Sales agreement, will require separate Congressional approval processes that Congress will need to consider carefully.

One way to avoid proliferation concerns is to reject the technology transfer altogether. Another is to transfer the technology with low-enriched uranium (LEU), which cannot be used in a nuclear weapon.

While the U.S. Navy insists that it is not ready to make the change, France successfully transitioned from HEU- to LEU-fueled submarines and China relies on LEU fuel too, so it is clear the technology exists and works. It’s therefore reasonable to ask whether Australia needs HEU fuel to operate far from home, including in the same waters as China. If the answer is no, then there is a solution.

The U.S. Navy could develop new reactors to run on LEU fuel and the Australia deal could potentially serve as a trial balloon. The Obama White House saw merit in the idea and a contingency in Congress including Reps. James Langevin (D-R.I.) and Bill Foster (D-Ill.) and Sen. Dianne Feinstein, (D-Calif.) have been advocating for research into the potential transition for years.

In terms of Congressional involvement, this deal with Australia is more complex than past 123 agreements, as it would be the first to require an exemption from the AEA’s non-proliferation criteria. Either this one will, or Congress will have to pass a law as it did with India defining the permissible nuclear cooperation. If it is the former, Congress’s role will change from needing to garner a majority to pass a joint resolution of disapproval, to needing to pass a joint resolution of approval in favor of the deal.

Per the AEA, Congress has 90 days of continuous session to review a nuclear cooperation agreement, at which time the agreement would enter into force unless there was serious Congressional opposition. While Congress can usually be passive under the terms of the AEA, Congress will bear responsibility for any damage done to non-proliferation norms since President Biden will need to request an exemption.

Presidential exemptions for such agreements can only be made if they determine that the requirement would be “seriously prejudicial to the achievement of U.S. nonproliferation objectives or otherwise jeopardize the common defense and security.” It seems likely that President Biden will need to argue in favor of the latter.

Congress should be wary of undermining non-proliferation norms that might give political cover to Iran’s nuclear aspirations and be proactive about supporting the U.S. Navy’s research into LEU fueled reactors. Otherwise, Congress is stuck with either approving lending Australia massive amounts of HEU fuel or sabotaging President Biden’s ability to support the United States’ partners in the Indo-Pacific.

Samuel M. Hickey is a Research Analyst at the Center for Arms Control and Non-Proliferation. His areas of focus include nuclear power developments in the Middle East region, non-proliferation and nuclear diplomacy.