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, inClinton 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.
(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.
With the US Senate Foreign Relations Committee all set to determine whether to recommend to the Senate to accept or reject the 123 Agreement with India with or without additional amendments. The Indo-US Nuclear Deal is in its home stretch.
In opening remarks before the crucial testimony of Undersecretary of State for Political Affairs William Burns before the Committee on Thursday, September 18, ranking minority member of the powerful Senate Foreign Relations Committee Senator Richard Lugar (R, Indiana) stressed that the nuclear agreement was an "important strategic opportunity" for the US.
He pointed out that the nuclear deal reinforced non-proliferation efforts and maintained US obligations under the Nuclear Non-proliferation Treaty.
Lugar also talked about the "seven determination requirements that the President must make in order to waive provisions of the Atomic Energy Act and submit the agreement to Congress."
"Last week, President Bush determined that each of these requirements has been met. Today's hearing will review these determinations in preparation for Congressional acceptance," he said.
He also outlined the four main policy and legal questions that must be resolved during the hearing. He emphasised on the need to "establish the definitive US interpretation of this agreement and avoid any ambiguity about the effect of this agreement on US law and policy."
Later after the hearing got underway, Acting Chair of the Senate Panel (Senator Joe Bidden, the permanent chair was away campaigning) Senator Dodd asked whether the fuel supply commitments were binding on the next administration taking charge on January 20, 2009. William Burns replied, "Any president would be bound by US law, just as you described, and I believe that the Indians understand the clarity of
our position,"
Then it was Acting Undersecretary for Arms Control and International Security John Rood’s turn to answer queries. “What was the legal effect of including assurances in the agreement? If those have no legal effect, then why were they included in the agreement at all? What would the United States do to help India create its strategic reserve of nuclear fuel? Does the government of India agree that those assurances were not legally binding and if so, has it said so in public,” asked Dodd
Replying to Senator Dodd's question, Rood said, "With regard to their understanding that our actions are going to be guided by US law and will be consistent with US law, I believe the Indians do understand that." (Emphasis added)
Let us, therefore, examine the US interpretation of the deal, which is consistent with US laws.
The documents submitted to the US Congress by the US President along with the Presidential Determination on Indo-US civil nuclear cooperation have made it amply clear that the terms of the 123 Agreement are fully in conformity with the Hyde Act.
In brief, the following points have been underscored to demonstrate that the 123 Agreement with India is in full conformity with the Hyde Act:
·India will not have any uninterrupted fuel supply assurance;
·India will have to place its civilian reactors under IAEA safeguards in perpetuity without such a fuel supply assurance;
·India will not have any assurance regarding stock piling fuel reserve for the life time of the reactors;
·Whatever corrective measures India may contemplate vis-à-vis fuel supply disruption, taking the reactors out of IAEA safeguards will be impermissible;
·India will not have access to full civilian nuclear technology;
·The consent to India's reprocessing of spent fuel is only notional;
·The US can terminate the 123 Agreement at will and stop all supplies immediately;
·India will have to align its foreign policy to that of the US, particularly on Iran.
Regarding Fuel Supply Assurances, the signed covering note to the Presidential Determination (President's Transmittal of Text to Congress) – also referred to as the ‘Hyde Package’ - George Bush makes it clear that the fuel supply assurance in the 123 Agreement is not legally binding. "In Article 5(6) the Agreement records certain political commitments concerning reliable supply of nuclear fuel given to India in March 2006. The text of the Agreement does not, however, transform these political commitments into legally binding commitments because the Agreement, like other US agreements of its type, is intended as a framework agreement."
This categorical denial of any legally binding fuel supply assurance in the 123 Agreement by the US President is accompanied by a specific observation contained in the Report Pursuant to Section 104(c) of Hyde Act Regarding Civil Nuclear Cooperation with India accompanying the Presidential Determination, which states:
"Once a facility is listed in the Annex, safeguards will continue indefinitely unless 'India and the Agency have jointly determined that the facility is no longer usable for any nuclear activity relevant from the point of view of safeguards’. Thus the facilities and materials subject to safeguards are under 'safeguards in perpetuity in accordance with IAEA standards, principles, and practices'."
The Report Pursuant to Section 104(c) of Hyde Act has also left the quantity of nuclear material transferred under the 123 Agreement undefined. Therefore the US is under no obligation to help India build up adequate fuel reserves for lifetime operations of the reactors.
Regarding Full Co-Operation in Civilian Nuclear Technology, the Presidential Determination clearly states:
"It (the 123 Agreement) does not permit transfers of any restricted data. Sensitive nuclear technology, heavy-water production technology and production facilities, sensitive nuclear facilities, and major critical components of such facilities may not be transferred under the Agreement unless the Agreement is amended." This is also reiterated in the Report Pursuant to Section 104(c) of Hyde Act.
Regarding Consent to Reprocess, the Nuclear Proliferation Assessment Statement accompanying the Presidential Determination states:
"Subsequent to India's March 2006 separation plan, the Indian government decided to pursue development of a new civil facility dedicated to reprocessing material under safeguards. Development of this facility (and agreement with the United States on arrangements and procedures related thereto) will be required to bring into effect the ‘programmatic consent’ in Article 6 of the Agreement.”
Regarding Iran, the Report Pursuant to Section 104(c) of Hyde Act approvingly talks about India aligning with the US on the Iran question both in the IAEA and the UN and that India "maintained a strong public line of support for P5+1 and US diplomatic efforts to resolve international concerns with Iran's nuclear program".
Regarding Missile Technology Control Regime, the Report Pursuant to Section 104(c) of Hyde Act mentions that India has written a letter stating its "adherence to the MTCR and its annex in a letter dated September, 9, 2008, to Mr Jacques Audibert, the MTCR Point of Contact in Paris".
As Dr AN Prasad and other critics of the deal point out that all this makes the 123 Agreement almost identical to the Tarapur one, where India had been forced to run from pillar to post for fuel after the US unilaterally terminated the Tarapur 123 Agreement.
India still continues to hold spent fuel as the US has never given its consent to reprocessing, even though such a "programmatic consent" was there in the Tarapur 123 Agreement also. It is with the experience of Tarapur that India had sought fuel supply assurances and various other terms including the right to reprocess spent fuel.
With the documents accompanying the Presidential Determination, the US has made its intentions clear - this 123 Agreement is no different from the earlier Tarapur one, with all the attendant Tarapur problems. Therefore, India can again land into a Tarapur-like mess, as the right of the US to terminate the agreement is an unfettered one.
Therefore the argument that India has a different interpretation of the 123 Agreement is meaningless. The US as a supplier of nuclear equipment and materials will undertake such supply only under the terms of what it calls a "framework agreement."
A different interpretation of the 123 Agreement by India will in no way bind the US as a supplier.
