Bush's 'Signing Statement' Is Not US Law

By Roger Alexander

India has now ‘operationalised’ the 123 Agreement with the US despite the US Congress HR 7081 or  the US-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act. The new US domestic legislation has put an end to the Government of India’s spin that the 123 Agreement does not trump the provisions of the Hyde Act as far as American obligations are concerned. This has been done by explicitly inserting rules of construction stating that nothing in the Agreement should be construed to supersede the legal requirements of the Hyde Act.

India’s Ambassador to the US Ronen Sen curtly brushed aside pointed questions saying that India was “completely satisfied” by President Bush’s ‘Signing Statement’. A ‘Signing Statement’ is a written comment issued by a President at the time of signing legislation. Often, signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs etc.

The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional. Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3).

In one frequently used phrase, George W. Bush has routinely asserted that he would not act contrary to the constitutional provisions that direct the president to “supervise the unitary executive branch.”  This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George HW Bush. Basically, George W Bush asserts that Congress cannot pass a law that undercuts the constitutionally granted authorities of the President. 

John W. Dean, a FindLaw columnist, argues that Bush has used signing statements like ‘line item vetoes.’ Yet the US Supreme Court held the line item vetoes are unconstitutional. In 1998, in Clinton v New York, the High Court said a president had to veto an entire law: Even Congress, with its Line Item Veto Act, could not permit him to veto provisions he might not like.

The Court held the Line Item Veto Act unconstitutional in that it violated the Constitution's Presentment Clause. That Clause says that after a bill has passed both Houses, but "before it become[s] a Law," it must be presented to the President, who "shall sign it" if he approves it, but "return it" - that is, veto the bill, in its entirety - if he does not.

Following the Court's logic, and the spirit of the Presentment Clause, a president who finds part of a bill unconstitutional, ought to veto the entire bill - not sign it with reservations in a way that attempts to effectively veto part (and only part) of the bill. Yet that is exactly what Bush has been doing over the past eight years. The Presentment Clause makes clear that the veto power is to be used with respect to a bill in its entirety, not in part. The powers of foot-dragging and resistance-by-signing-statement are not mentioned in the US Constitution alongside the veto, after all.

Anyway, Bush remains in the White House for three more months before he retires to Crawford on January 20, 2009. And by incorporating an explicit reference to Bush’s letter — as well as other “authoritative representations” on the subject by the administration — Congress has given its interpretations a definite legislative status, which will live well beyond the life of the current presidency. The next President may well choose to ignore Bush’s personal interpretation of the Berman Law. And that is what is going to remain of the statute books.

ends

Secrets Of Iraq's Death Chamber

October 07, 2008

(It can't get more depressing than this. George W Bush invaded Iraq to make it a 'democracy'. And this is what happened. Pl keep a barf bag ready as you read Robert Fisk's dispatch - it'll make you puke)

Prisoners are being summarily executed in the government's high-security detention centre in Baghdad. Robert Fisk of The Independent reports 

Like all wars, the dark, untold stories of the Iraqi conflict drain from its shattered landscape like the filthy waters of the Tigris. And still the revelations come.

The Independent has learnt that secret executions are being carried out in the prisons run by Nouri al-Maliki's "democratic" government.

The hangings are carried out regularly – from a wooden gallows in a small, cramped cell – in Saddam Hussein's old intelligence headquarters at Kazimiyah. There is no public record of these killings in what is now called Baghdad's "high-security detention facility" but most of the victims – there have been hundreds since America introduced "democracy" to Iraq – are said to be insurgents, given the same summary justice they mete out to their own captives.

The secrets of Iraq's death chambers lie mostly hidden from foreign eyes but a few brave Western souls have come forward to tell of this prison horror. The accounts provide only a glimpse into the Iraqi story, at times tantalisingly cut short, at others gloomily predictable. Those who tell it are as depressed as they are filled with hopelessness.

"Most of the executions are of supposed insurgents of one kind or another," a Westerner who has seen the execution chamber at Kazimiyah told me. "But hanging isn't easy." As always, the devil is in the detail.

"There's a cell with a bar below the ceiling with a rope over it and a bench on which the victim stands with his hands tied," a former British official, told me last week. "I've been in the cell, though it was always empty. But not long before I visited, they'd taken this guy there to hang him. They made him stand on the bench, put the rope round his neck and pushed him off. But he jumped on to the floor. He could stand up. So they shortened the length of the rope and got him back on the bench and pushed him off again. It didn't work."

There's nothing new in savage executions in the Middle East – in the Lebanese city of Sidon 10 years ago, a policeman had to hang on to the legs of a condemned man to throttle him after he failed to die on the noose – but in Baghdad, cruel death seems a speciality.

"They started digging into the floor beneath the bench so that the guy would drop far enough to snap his neck," the official said. "They dug up the tiles and the cement underneath. But that didn't work. He could still stand up when they pushed him off the bench. So they just took him to a corner of the cell and shot him in the head."

The condemned prisoners in Kazimiyah, a Shia district of Baghdad, are said to include rapists and murderers as well as insurgents. One prisoner, a Chechen, managed to escape from the jail with another man after a gun was smuggled to them. They shot two guards dead. The authorities had to call in the Americans to help them recapture the two. The Americans killed one and shot the Chechen in the leg. He refused medical assistance so his wound went gangrenous. In the end, the Iraqis had to operate and took all the bones out of his leg. By the time he met one Western visitor to the prison, "he was walking around on crutches with his boneless right leg slung over his shoulder".

In many cases, it seems, the Iraqis neither keep nor release any record of the true names of their captives or of the hanged prisoners. For years the Americans – in charge of the notorious Abu Ghraib prison outside Baghdad – did not know the identity of their prisoners. Here, for example, is new testimony given to The Independent by a former Western official to the Anglo-US Iraq Survey Group, which searched for the infamous but mythical weapons of mass destruction: "We would go to the interrogation rooms at Abu Ghraib and ask for a particular prisoner. After about 40 minutes, the Americans brought in this hooded guy, shuffling along, shackled hands and feet.

"They sat him on a chair in front of us and took off his hood. He had a big beard. We asked where he received his education. He repeatedly said 'Mosul'. Then he said he'd left school at 14 – remember, this guy is supposed to be a missile scientist. We said: 'We know you've got a PhD and went to the Sorbonne – we'd like you to help us with information about Saddam's missile project'. But I said to myself : 'This guy doesn't know anything 'bout fucking missiles.' Then it turned out he had a different name from the man we'd asked for, he'd been picked up on the road by the Americans four months earlier, he didn't know why. So we said to the Americans: 'Wrong gentleman!' So they put the shackles on him and took him back to his cell and after 20 or 30 minutes, they'd bring someone else. We'd ask him where he went to school and he told us he had never been to school.

"Wrong person again. It was a complete farce. The incompetence of the US military was astounding, criminal. Eventually, of course, they found the right guy and brought him in and took his hood off. He was breathing heavily, overweight, pudgy, disoriented, a little bit scared."

On this occasion, the Americans had found the right man. The British and American investigators asked the guards to remove the man's shackles, which they did – but then they tied one of the man's legs to the floor. Yes, he had a PhD.

Again, the official's testimony: "We went through his history, what he'd worked on – he was obviously just a minor functionary in one of Saddam's missile programmes. Iraqi scientists didn't have the knowledge how to make nuclear missiles nor did they have the financial support necessary. It just remained in the dreams of Saddam."

The scientist-prisoner in Abu Ghraib miserably told his captors that he'd been arrested by the Americans after they'd knocked on his front door in Baghdad and found two Kalashnikov rifles a woman's hijab, verses from the Koran and, obviously of interest to his captors, "physics and missile textbooks on his bookshelves." But this supposedly valuable prisoner was never charged or previously interviewed even though he admitted he was a rocket scientist.

"I don't know what happened to him," the former official told me. "I tried to tell the UK and the US military that we've arrested this man but that he's got a wife, children, a family. I said that by locking up this one innocent person, you've got 50 men radicalised overnight. No, I don't know what happened to him."

For many of the investigators working for the Anglo-American authorities in Baghdad, the trial for the crime for which the Iraqi dictator was himself subsequently hanged was a fearful experience that ultimately ended in disgust. Through captured documents, they could see the dark, inner workings of Saddam's secret police. The idea of the Saddam trial was less to bring members of the former regime to justice than to show Iraqis how justice and the rule of law should operate.

"It was exhilarating to see Saddam being cross-examined," one of the court investigators said. "The low point was when he was executed. What drove me on was seeing how Saddam dealt with his victims – I was looking at a microcosm of all the deaths that had taken place in Iraq. But when he was executed, it was done in such a savage way."

Saddam Hussein was hanged in the same "secure" unit at Kazimiyah where Mr al-Maliki's people, in an echo of Saddamite Baathist terror, now hang their victims.

Iraq The death penalty

*The death penalty in Iraq was suspended after Saddam Hussein was deposed in 2003. It was reinstated by the interim government in August 2004.

*The United Nations, the European Union and international human rights organisations all spoke out against the reintroduction.

*At the time, the government claimed the death penalty was a necessary measure until the country had stabilised. Amnesty International claims that "the extent of violence in Iraq has increased rather than diminished, clearly indicating that the death penalty has not proved to be an effective deterrent."

*Saddam, left, his half-brother Barzan al-Tikriti and Iraq's former chief judge Awad Hamed al-Bandar were hanged at the end of 2006 for their part in the killings of 148 people in the mainly Shia town of Dujail in 1982. Illicit videos of all three executions later became public. Saddam's body could be seen on a hospital trolley, his head twisted at 90 degrees. Barzan – Iraq's former intelligence chief –was decapitated by the noose. Officials said it was an accident.

*According to Amnesty, there were at least 33 executions reported in Iraq last year. About 200 people were estimated to have been sentenced to death.

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Iran: Indo-US N. Deal to Create New Crises

(Here's Iran's take on the Indo-US Nuclear Deal. The Persians have a point)

TEHRAN (FNA)- Iran on October 6 warned that the Indo-US nuclear deal has "endangered" the Non-Proliferation Treaty (NPT) and will trigger a "new crises" for the international community.

"The method used by several nuclear states to transfer the technology to non-members of the NPT, will create new crises for the international community," Deputy head of Iran's Atomic Energy Organization Mohammad Saeedi said. 

"Cooperation in the area of transfer of nuclear technology to the NPT non-members will endanger the treaty," he said, adding that although India is enjoying nuclear weapons it is not a signatory to the NPT. 

He said that "privileges" to India which is not a member of NPT will endanger the treaty. 

According to the NPT, only signatories to the treaty can make use of the rights mentioned in the treaty, Saeedi noted. 

Both houses of the US Congress voted in favor of the landmark nuclear deal this week and President George W. Bush is expected to sign it into law on Wednesday. 

This is while Washington and its Western allies accuse Iran of trying to develop nuclear weapons under the cover of a civilian nuclear program, although they have never presented any corroborative evidence to substantiate their allegations. Iran denies the charges and insists that its nuclear program is for peaceful purposes only. 

Tehran stresses that the country has always pursued a civilian path to provide power to the growing number of Iranian population, whose fossil fuel would eventually run dry. 

Despite the rules enshrined in the Non-Proliferation Treaty (NPT) entitling every member state, including Iran, to the right of uranium enrichment, Tehran is now under three rounds of UN Security Council sanctions for turning down West's illegitimate calls to give up its right of uranium enrichment. 

Tehran has dismissed West's demands as politically tainted and illogical, stressing that sanctions and pressures merely consolidate Iranians' national resolve to continue the path. 

Iran insists that it should continue enriching uranium because it needs to provide fuel to a 300-megawatt light-water reactor it is building in the southwestern town of Darkhoveyn as well as its first nuclear power plant in the southern port city of Bushehr. 

Iran currently suffers from an electricity shortage that has forced the country into adopting a rationing program by scheduling power outages - of up to two hours a day - across both urban and rural areas. 

Iran plans to construct additional nuclear power plants to provide for the electricity needs of its growing population. 

The Islamic Republic says that it considers its nuclear case closed as it has come clean of IAEA's questions and suspicions about its past nuclear activities. 

Political observers believe that the United States has remained at loggerheads with Iran mainly over the independent and home-grown nature of Tehran's nuclear technology, which gives the Islamic Republic the potential to turn into a world power and a role model for other third-world countries. Washington has laid much pressure on Iran to make it give up the most sensitive and advanced part of the technology, which is uranium enrichment, a process used for producing nuclear fuel for power plants. 

Washington's push for additional UN penalties contradicts a recent report by 16 US intelligence bodies that endorsed the civilian nature of Iran's programs. Following the US National Intelligence Estimate (NIE) and similar reports by the IAEA head - one in November and the other one in February - which praised Iran's truthfulness about key aspects of its past nuclear activities and announced settlement of outstanding issues with Tehran, any effort to impose further sanctions on Iran seems to be completely irrational. 

The February report by the UN nuclear watchdog, the International Atomic Energy Agency, praised Iran's cooperation in clearing up all of the past questions over its nuclear program, vindicating Iran's nuclear program and leaving no justification for any new UN sanctions. 

The UN nuclear watchdog has so far carried out at least 14 surprise inspections of Iran's nuclear sites so far, but found nothing to support West's allegations. 

Also in his latest report to the 35-nation Board of Governors, IAEA Director General Mohamed ElBaradei confirmed "the non-diversion" of nuclear material in Iran and added that the agency had found no "components of a nuclear weapon" or "related nuclear physics studies" in the country. 

The IAEA report confirmed that Iran has managed to enrich uranium-235 to a level 'less than 5 percent.' Such a rate is consistent with the construction of a nuclear power plant. Nuclear arms production, meanwhile, requires an enrichment level of above 90 percent. 

The Vienna-based UN nuclear watchdog continues snap inspections of Iranian nuclear sites and has reported that all "declared nuclear material in Iran has been accounted for, and therefore such material is not diverted to prohibited activities." 

Many world nations have called the UN Security Council pressure against Iran unjustified, especially in the wake of recent IAEA reports, stressing that Tehran's case should be normalized and returned to the UN nuclear watchdog due to the Islamic Republic's increased cooperation with the agency. 

Observers believe that the shift of policy by the White House to send William Burns - the third highest-ranking diplomat in the US - to the latest round of Iran-West talks happened after Bush's attempt to rally international pressure against Iran lost steam due to the growing international vigilance. 

US President George W. Bush finished a tour of the Middle East in winter to gain the consensus of his Arab allies to unite against Iran. 

But hosting officials of the regional nations dismissed Bush's allegations, describing Tehran as a good friend of their countries. 

ends

After Muslims, Indian Christians Under Siege

By Roger Alexander

[Note: I have resisted writing on this topic so far for fear of being labelled an apologist, given my name. I was only born in a Christian family and have been an atheist since high school. However, curious to know how a minuscule section of an ancient civilisation converted to an “alien” religion, I worked on ‘The Political Economy of Religious Conversions’ for my PhD.

I came across enough evidence to demonstrate that most Christians in Rajasthan (the area of the study) – and indeed the rest of the country with the possible exception of Kerala and Goa – are indeed ‘Rice Christians’ i.e. the marginalised sections, especially Dalits and Tribals who embraced Christianity in exchange for a more dignified and hunger-free life. Many upper-caste, educated Hindus also came into the Christian fold in order to boost their careers in the service of the British Raj.

As an aside, let me mention that if you come across a Christian with a westernised name like mine, 99 per cent of the times such a person is the progeny of some Dalit or Tribal convert a century ago. A Christian with an upper-caste surname like Singh or Sharma or even a Haidar Ali (like my wife) had well-off forefathers who served the Raj well in the hope of out-of-turn promotions or plum postings. Or as in the case of Goa, they were landed gentry who used the simple expedient of conversion to prevent their land being expropriated by the marauding Inquisition-driven Portuguese colonialists.]

Now that you have survived the lengthy intro, let’s get down to what’s happening today in Orissa, Karnataka, Madhya Pradesh, Gujarat and Rajasthan – all NDA-ruled states – besides other parts of the country. The Sangh Parivar’s recurring theme is that Christian missionaries are “forcibly” converting Hindus, or offering “allurements/inducements” to win converts.

What is the reality? If there were so many thousands of conversions, as claimed by the Sangh Parivar, the number of Christians should have skyrocketed. The opposite is true. The Census of India shows a decline in the percentage of the Christian population of India vis-à-vis the total population: 2.6 per cent in 1971; 2.44 per cent in 1981 and 2.32 per cent in 1991, 2.3 per cent in 2001! This decline continues.

Besides, there is a disincentive to any Dalit to convert: those who convert forfeit the right to be recognized as a Schedule Caste and benefit from the reservation policy in education and government jobs.

Moreover, several states have passed anti-conversion bills. The first was Arunachal Pradesh in 1978, Gujarat in 2003, Madhya Pradesh and Chhattisgarh in 2006, and Himachal Pradesh in 2007. There exist very stringent punishments for conversions by force or allurement. Till today, not a single case of such conversion has been brought forward.

The fact that the even the NDA state governments have not been able to bring up even one case, is an indication that this charge is a fabrication. The very fact that a majority of secular Hindus, not to speak of the rabid right, vie to send their children to Christian schools for education is a sign that they do not really worry about conversion.

Indeed, even the likes of LK Advani and Bal Thackeray have testified that they are not worried their grandchildren studying in Christian schools might stray away from the Hindu fold. And we should not forget that come admission time, principals of Christian schools and colleges are threatened by these very same people of “dire consequences” if their children do not get a seat in Nursery and KG!

The attacks on the Christian community are not restricted only to Mangalore or Orissa, but have spread to other states like Madhya Pradesh, Kerala, Chhattisgarh and even the national capital. They are military-like operations, carried out with clinical precision and are brutal, with no discrimination - sparing neither clergy nor women and children. (Remember the brutal burning alive of Graham Staines and his two sons?)

Not only that, we are now witnessing the forced reconversion of Christians to Hinduism by Hindutva groups, especially in Kandhamal district of Orissa. Christian families have already suffered the loss of their homes, possessions and places of worship in sustained attacks by marauding mobs of Sangh supporters from August 24, and even now more than a month later they now cannot return to their villages unless they reconvert to Hinduism, reports Parvathi Menon of The Hindu from Ground Zero in Orissa.

In fact, there is now a sectarian movement that has not been experienced in independent India. August and September this year has witnessed a steady depopulation of villages of their Christian population who fled fearing for their lives. Now, if families wish to return, reconversion to Hinduism is the price they must pay.

“I am a tribal and my nephews are searching to kill me,” Father Lakshmikant, parish priest of the St Paul’s Catholic Church in Baliguda told Menon. In his testimony he said he had to flee from the mobs that were after him and spend days in the forest before he reached Bhubaneshwar.

Menon reports that thousands of Christian families in relief camps, who rejected the option of reconversion, have little hope of returning to their homes and villages that they left more than a month ago. In fact, Christian priests, pastors and nuns are unlikely to be able to return to their places of work in Kandhamal district in the near future. Some have been marked and get regular threatening calls.

Therefore, the most important question that has to asked is whether the reconversion or ghar wapsi programme of the Hindu fundamentalists fall under the anti-conversion law especially since gifts and incentives are given to people to return to the Hindu fold? Whatever happened to the anti-conversion law?

For the saffron brigade, Muslims have been fair game for long. But why are Christians – less than 3 per cent of the population - being targeted?

I’m putting together a cogent argument (hey, I’m the alleged expert). Watch this space tomorrow.

[Ends for the moment. But the debate continues! Pl post a comment. It helps me build up traffic that I need. Thanx] 

True Colours Of The Nuclear Deal

(Okay, you don't agree with me. So here's Dr PK Iyengar, Former Chairman of the Atomic Energy Commission - midwife (nay one of the fathers of our indegenous nuclear programme) and known opponent of Manmohan Singh's sell-out to the US making the same point. And if you think India has made a breakthrough deal with France - bypassing the US - you've got another thing coming. But more of that tomorrow)

 

The US House of Representatives has passed a bill (H. R. 7081) that approves the 123 Agreement, but which is contradictory to the assurance given by the Prime Minister to the nation. An identical version is before the US Senate for voting. Even as late as 26 September 2008, the Prime Minster was seeking an agreement that would ‘satisfy India’. This has not come to pass, and it will be interesting to see how the Indian government and the Indian media will ‘spin’ this into a victory for India. The Indian side is supposed to have been unhappy with the language. The fact is that one is not worried about the language, but the content and compulsions of the Bill.

Why is the House bill not satisfactory? Even the title of the Bill, ‘United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act’, makes it clear that they seek to press their non-proliferation agenda. The Bill makes a number of things explicitly clear, and reveals the true colours of the nuclear deal.

(1) The 123 Agreement is subject to the provisions of the Hyde Act and the Atomic Energy Act, and does not supersede them.

This is said, in so many words, twice in the Bill. Section 101 (page 3, lines 16-21) says that: “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.” Section 102 (page 6, lines 8-12) reiterates that: “Nothing 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.”

Therefore there is now no question of differences in the ‘interpretation’ of the 123 Agreement. Irrespective of what we think we are bound by, the Americans have made it abundantly clear that they are bound by the Hyde Act and the Atomic Energy Act, and the 123 Agreement does not supersede either of them. If we conduct a test it is now abundantly clear that, as per the provisions of the Hyde Act and the Atomic Energy Act, it is the end of the nuclear deal.

(2) In the event of a disruption of fuel supply from the US, the Americans will not help arrange for fuel from another country.

Article 5(b-iv) of the 123 Agreement says that in the event of fuel disruption the US will help India get fuel from ‘friendly supplier countries’. But it seems that the Congress is having none of this. Section 102 (page 5, lines 4-12) of the Bill explicitly states that in the event of fuel disruption, not only will the US not help arrange for fuel from other countries, but it will also “seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in the Nuclear Suppliers Group (NSG) or from any other source.” Since this sentence is not in the 123 Agreement, the Indian government will probably claim that we are not bound by it. However, the simple reality is that if there is a disruption of fuel from America, for whatever reason, the Americans will work hard to ensure that we do not get it from any other source.

(3) There will be no transfer of enrichment technology, and even permission for reprocessing imported fuel may be denied.

This is the most disturbing clause in the Bill. Sec. 204 of the Bill (page 14, lines 11-19) says explicitly that before the 123 Agreement enters into force (according to Article 16), the President has to certify that the US will work with NSG countries to “agree to further restrict the transfers of equipment and technology related to the enrichment of uranium and reprocessing of spent fuel”. So, one of the major advantages we were expecting from the NSG waiver and the 123 Agreement will not be forthcoming. But this Bill goes even further. Section 201 makes it very clear that any future proposal for reprocessing needs explicit approval from the US Congress, and the Congress retains the right to refuse (page 13, lines 1-4). This is a new twist, and extremely dangerous, because it leaves us completely at the mercy of the Congress. The same section also says that the US will pursue efforts with other countries to ensure that reprocessing of fuel from those countries will also be governed by ‘similar arrangements and procedures’.

This seems to suggest that the US would even like the existing arrangements with Russia for the Kudankulam reactors to be modified along the proposed lines. The same would also apply to any other supplier. It is surprising that in spite of our being a ‘strategic partner’, the US wants to restrain our fuel-cycle developments. This shows, again, that India is not being treated as an equal, in spite of the fact that for decades India has developed reprocessing and enrichment technology on its own, and produced plutonium for fast-breeder reactors as well as enriched uranium for the submarine reactor.

 These explicit statements in the House Bill only reaffirm what many of us have been saying for a long time. The 123 Agreement does not supersede, and is constrained by, the Hyde Act and the Atomic Energy Act. The House Bill has added new constraints. The entire Indo-US nuclear deal, which must now be taken to comprise of the Congress Bill, the 123 Agreement and the Hyde Act, is in contradiction to the July 2005 Joint Statement, because it doesn’t give India the status of an advanced nuclear state enjoying the same obligations and benefits as others. The nuclear deal does not allow cooperation in enrichment or reprocessing technology. The nuclear deal does not guarantee fuel supplies or a fuel reserve. In the event of a breach of the 123 Agreement, the US will not work with its allies to find alternate solutions – on the contrary it will pressure them to act against Indian interests. ‘Full cooperation’ in civil nuclear power is meaningless without assurances of fuel supply and technological cooperation in the fuel cycle.

 The House Bill also makes it clear that the US continues to impose on us the existing non-proliferation regime, and is not ready to recognize India as a nation with advanced nuclear technology. President Bush may have made many promises, but he will not be around to fulfill them. The reality is that the nuclear deal will not bring us as equals to the nuclear table. It will only serve to tighten the non-proliferation regime around us, make us dependent on the nuclear cartel for fuel, and completely cripple our strategic programme.

If the government’s intention is to import nuclear reactors and fuel, a simple bilateral agreement, which guarantees application of safeguards to the reactors, the fuel, and the end products of reprocessing the fuel, would have been sufficient and meaningful. There is already a precedent for this. In the nuclear deal with Russia, the irradiated fuel from the Kudankulam reactors can be reprocessed in India, provided this is done under IAEA safeguards. The plutonium that is produced in these reactors, when separated, will also attract IAEA safeguards. This is perfectly understandable, and India has accepted this. Why this should not be applicable in a more friendly agreement with the US, is incomprehensible.

 In 1974, when India was less developed and had a bleaker future, Indira Gandhi  was able to stand firm in supporting a strategic programme, in spite of ominous warnings of the retribution that would follow. It is ironic that in 2008, when India is in a much stronger position, economically and geopolitically, her own party is ready to betray her legacy and put on nuclear shackles, for a few dollars more.

Dr PK Iyengar

30 September 2008

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3-2-1-0: Indo-US Nuclear Deal Enters Home Stretch

By Roger Alexander

After a lot of drama and suspense, Congressman Howard Berman, a strong opponent of certain provisions of the Indo-Us Nuclear Deal, introduced a bill in the House of Representatives that is almost identical to the one that was overwhelmingly adopted by the Senate Committee on Foreign Relations.

However, his bill is said to have an extra paragraph that would require that the Senate and the House versions would have to be reconciled in a committee with the involvement of the administration as well, reports rediff.com.

 

Berman was also persuaded to drop killer amendments, including one on Iran that could have sabotaged the legislation following which he introduced the bill. He probably did so as the Hyde Act contains 17 references to Iran and directs India to have a foreign policy “congruent” to that of the US. That was why India voted twice against Iran in the IAEA.

(The Hyde Act requires an annual Presidential certification that India is in compliance with American law. And this so-called prescriptive clause is going to be a millstone around country’s neck for a long time to come.) 

As this blog reported yesterday (September 24) - ‘US Senate Committee Shafts India On Nuclear Deal’ - Berman provided considerable input into the Senate Committee’s legislation with his staffers and that Senate panel staffers worked in concert to craft a bill that could possibly be cloned in the House of Representatives for floor action. That has happened.

According to the rediff.com report, Berman's bill, though in all respects similar to the Senate Committee's Bill, contains an additional proviso that in the event of a nuclear test by India, which leads to the automatic termination of the deal, the presidential waiver of this termination could be limited. 

Under the Senate Committee's bill, as does many pieces of legislation dealing with such 123 Agreements and arms sales bills with America's allies, automatic termination of these agreements can be waived by the President on national security grounds and can be overridden by Congress only with a two-thirds majority.

Berman's Bill puts slightly more teeth into Congress with the presidential waiver having the authority for being overridden by the Congress with a simple majority and not two-thirds majority.

Now it is only a matter of time and procedure that the US Congress puts is imprimatur on the Indo-US 123 Agreement. It was being speculated that Congress might fail to endorse the 123 Agreement as House Committee on Foreign Relations chairman Howard L Berman, an alleged critic of the deal (even though he supported the passage of the Henry J Hyde Act) was refusing to play ball. But unlike in India, even the so-called maverick American politicians put the US' supreme national interest above personal preferences.

The Senate panel bill - the United States-India Nuclear Cooperation Approval and Nonproliferation Enhancement Act - though approved 19-2, forcefully stresses that “…nothing 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.”

It also introduces a new element impinging on India's right to uninterrupted fuel supplies guaranteed by the 123 Agreement. In the approval legislation sent to the full Senate, the Committee makes it clear that “...it is the policy of the US to seek to prevent the transfer to India of nuclear equipment, materials, or technology from other participating governments in NSG or from any other source.”

This contingency would arise in the event nuclear transfers to India are suspended or terminated in the event of a test in pursuance of provisions of the US enabling law, the Hyde Act, the Atomic Energy Act or any other US law, it says.

Manmohan Singh and his minions have consistently trotted out the specious argument that India is only bound by the 123 Agreement and papered over the supposedly "extraneous provisions" in the Hyde Act, the US legislation that grants the US administration an exemption from the Atomic Energy Act to carry out nuclear trade with India, a non-signatory to the Nuclear Non-Proliferation Treaty (NPT).

Another provision in the SCFR's recommendation sets limits on the nuclear fuel provided to India as part of promised fuel reserve saying "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.”

This is a far cry from Manmohan Singh’s assurance to Parliament on a number of occasions that India had obtained fuel supply guarantees for the lifetime of the reactors that would be purchased from the US and that India would have the right to build up a strategic reserve.

As usual, the Indian government’s spinmeisters are trotting out arguments that have already been discredited. "I am not going to comment on internal process in the US. We have the right to test and they have the right to react," Foreign Secretary Shivshankar Menon told reporters in New York. The usual bluster – India has the right to test while others have the right to react – was once again the retort to pointed questions from the media.

Still, the US Congress is all set to pass the Indo-US 123 Agreement along with the attendant riders (maybe some more may be added by Representatives and Senators). But Manmohan Singh is all set to sign away India’s sovereign rights and shackle us permanently to the Hyde Act and its pernicious conditions, including India’s foreign policy being “congruent” to that of the US. He has indicated as much in the past few days.

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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?

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