US Senate Committee Shafts India On Nuclear Deal

By Roger Alexander

Critics of the Indo-US Nuclear Deal in India – including eminent scientists who nurtured India’s nuclear programme during its infancy along with the entire opposition in Parliament - have consistently pointed that the deal is rooted in the Henry J Hyde Act and comes with many strings attached.

However, the government’s spinmeisters and their surrogates in the corporate media have continually claimed that the Hyde Act with its “prescriptive” clauses is only an “enabling legislation” that India can safely ignore for it is bound only by the 123 Agreement which is a legally binding international treaty.

Now that the US Senate Foreign Relations Committee has approved and forwarded a bill titled ‘The United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act' to the Senate floor for ratification, it has become abundantly clear that the pro-deal spinmeisters in India have their task cut out to prove that only the provisions of the 123 Agreement – and not the Hyde Act and other tough US laws - will determine Indo-US nuclear commerce and that everything else in the US’ “internal political process” are extraneous and not binding on India.

First and foremost, contrary to the spin being dealt out by Prime Minister Manmohan Singh and his minions in the Cabinet, the bureaucracy and the corporate media, the 123 Agreement’s conformity with the Hyde Act is iterated in the bill titled the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act states in sub-section (d) titled ‘Rule of Construction’: “(N)othing in the Agreement shall be construed to supersede the legal requirements of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 or the Atomic Energy Act of 1954.”

Indeed, the bill clearly states that when signed into law by President Bush, the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act has to be in strict conformity with the Hyde Act. Besides, in the event India tests an explosive devise, the US would not simply “discourage” other Nuclear Supplier Group (NSG) members to deny India nuclear equipment, materials and technology to India but work to “prevent” such transfers, reports Aziz Haniffa for rediff.com.

(Do link to Aziz Haniffa on rediff.com for his excellent Washington coverage of the Nuclear Deal – no Indian media outlet has been as comprehensive. This blog is greatly beholden to him and rediff.com for the coverage on this topic.)

If this is not good enough to make you sit up and look, senior Congressional sources told Haniffa that Congressman Howard Berman, chairman of the House Foreign Affairs Committee, also provided considerable input into the Senate Committee’s legislation with his staffers and that Senate panel staffers working in concert crafted a bill that could possibly be cloned in the House of representatives for floor action. (Berman is not obliged to call for hearings from the Bush Administration and can directly recommend to the House a bill that mirrors the Senate’s document.)

It will be recalled that Bremen, even though he reluctantly supported the passage of the Hyde Act, now wants append additional conditionalities – especially on fuel supply, weapons testing, and export of reprocessing technologies – to India.  

Now these are some of the many issues that the UPA’s spinmeisters have to grapple with to explain why the Deal is not a sell-out:

In Section 101, titled Approval of Agreement, and sub-section (b) with regard to Applicability of Atomic Energy Act of 1954, Hyde Act, and other provisions of Law, the legislation approved by the Committee says, “The Agreement shall be subject to the provisions of the Atomic Energy Act of 1954, the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, and any other applicable United States law.”

In Section 102 of the bill titled, Declarations of Policy; Certification Requirement; Rule of Construction, and the sub-section which dealt with Declarations of Policy Relating to Meaning and Legal Effect of Agreement, the legislation clearly lays out: “Congress declares that it is the understanding of the United States that the provisions of the United States-India Agreement for Cooperation on Peaceful Uses of Nuclear Energy have the meanings conveyed in the authoritative representations provided by the President and his representatives to the Congress and its committees prior to September 20, 2008, regarding the meaning and legal effect of the Agreement.”

Indeed, the bill clarifies that the commitments regarding fuel supplies are political and not legally binding. It will be recalled that senior Bush Administration officials, led by Undersecretary of State for Political Affairs William Burns, under intense questioning by the Acting Chair of the panel Senator Chris Dodd and others whether the 123 Agreement commitment regarding fuel supplies were only political commitments and not legally binding in the event that India tested, testified before the Committee on September 18 acknowledged that they were the former.

That is not all. Subsection (b) of Section 102, titled Declarations of Policy Relating to Transfer of Nuclear Equipment, Materials, and Technology to India says: “Pursuant to section 103(a)(6) of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, in the event that nuclear transfers to India are suspended or terminated pursuant to title I of such Act, the Atomic Energy Act of 1954, or any other United States law, it is the policy of the United States to seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group or from any other source.” (Emphasis added)

Note, the word “prevent” has replaced the earlier “discourage,” adding on a more punitive component in the case of India testing a nuclear devise.

The conditionalities do not end here. Sub-section (2) also eliminates India being the beneficiary of any additional material, when it states: “(P)ursuant to section 103(b)(10) of the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, any nuclear power reactor fuel reserve provided to the Government of India in safeguarded civilian nuclear facilities should be commensurate with reasonable reactor operating requirements.”

The Americans are convinced that Manmohan Singh - blinded as he is by the legacy spiel to "unshackle" India from a "nuclear aparthied regime" and his specious "lasting legacy bit - will play along and sign on the dotted line. Congressman Gary Ackerman, (D, New York), who chairs the House Foreign Affairs Subcommittee on South Asia, while acknowledging that the were some changes from the original 123 Agreement and the Hyde Act, told Haniffa that all of this was nothing serious but just “a political issue.” 

He went on to argue: “The issue of testing is there - that the deal is off if there’s testing. So, then you can have a challenge from the Left politically in India, saying that India gave in to this or that or the other thing. But that’s a political question because India says it’s not going to test anyway…So, if it’s not going to test, it’s only a psychological barrier…My view is get the darn thing done and we’ll worry about the politics there, the politics here later. That’s what politicking is - who gets blamed, who gets the credit…Let's get it done. That the main issue - keep the eye on the ball. That’s the prize.”

So there you have it. Either India has to accept the ‘United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act’ in the manner in which the Foreign Relations Committee it has presented to the full Senate, and will most probably be akin to the House of Representatives’ resolution given Berman’s “assistance” to the Foreign Relations Committee.

Indeed, one senior Administration source told Haniffa, if India rejects the Senate Committee bill, “It wouldn't be just looking a gift horse in the mouth - particularly when timing is of the essence - it will be kicking it in the mouth.” Meaning, India can leave it or lump it.

Going by his statements during his current visit to the US, Prime Minister Manmohan Singh seems to have already made up his mind to lump it. But will his government and party be able to weather the political tsunami - that will certainly castigate him for doing a Mir Jaffar (a sell-out) – that will follow in the wake of his reckless action if he does indeed and go ahead and sign the 123 Agreement without taking Parliament into confidence, as he solemnly promised in the Lok Sabha (whiile tabling his reply to the trust mothion moved by him) on June 23?

ends