The Washington deal

Exciting times lie ahead as the India-US civilian nuclear cooperation agreement is put in its final stages

Kaushik Kapisthalam Atlanta

The US Congress will be the venue of what is now shaping up to be a monumental battle to clear the India-US civilian nuclear cooperation agreement. At the request of the George W Bush administration, identical bills have been introduced in both the House of Representatives and the Senate. In the House, Republican Congressman Henry Hyde, who chairs the International Relations Committee, introduced the bill while Senate Foreign Relations Committee chairman Richard Lugar initiated the process in the upper house. Both Lugar and Hyde were very keen however, to make it clear that they were doing this merely as a courtesy to the Bush administration and have subtly indicated displeasure in the manner in which this deal was presented to Congress.

Legal issues

When the Bush administration announced that it was rethinking on nuclear cooperation with India in July 2005, the decision not only shocked the world, but also offended Congress because its members felt that they were not consulted in the decision process. Few are aware that it is not the Nuclear Nonproliferation Treaty (NPT) that prevents the US from helping India on nuclear matters. In fact, there are several American laws, some directly aimed at India, that block US-India nuclear ties. To get the July 2005 accord to daylight, Congress must basically rewrite section 128 of the Atomic Energy Act of 1954 and figure out ways to bypass the Nuclear Nonproliferation Act of 1978. The latter act was written in the aftermath of India’s 1974 nuclear test in Pokhran.

Under the proposed legislation, Congress will basically set aside prior laws just for India, provided the US President can “make a determination” that:

(1) India has provided the US and the International Atomic Energy Agency (IAEA) with a credible plan to separate civil and military facilities, materials, and programs, and has filed a declaration regarding its civil facilities with the IAEA.

(2) An agreement has entered into force between India and the IAEA requiring the application of safeguards in accordance with IAEA practices to India's civil nuclear facilities as declared in the plan described in (1).

(3) India and the IAEA are making satisfactory progress toward implementing an Additional Protocol that would apply to India's civil nuclear programme.

(4) India is working with the United States for the conclusion of a multilateral Fissile Material Cutoff Treaty.

(5) India is supporting international efforts to prevent the spread of enrichment and reprocessing technology.

(6) India is ensuring that the necessary steps are being taken to secure nuclear materials and technology through the application of comprehensive export control legislation and regulations, and through harmonization and adherence to Missile Technology Control Regime (MTCR) and Nuclear Suppliers Group (NSG) guidelines.

(7) Supply to India by the United States is consistent with United States participation in the Nuclear Suppliers Group.

What this means

As with any legislation, the real-world meaning of the conditions needs to be explained. Sections one through four are straightforward and should be fulfilled relatively easily given that the Bush administration blessed India’s nuclear separation plan when President Bush visited India. However, Section five, which needs a Presidential determination that India is “supporting international efforts” against nuclear spread is a loaded condition. It basically means that India will have to continue to support US efforts against Iran and potentially other “rogue” states suspected of nuclear cheating. This basically reduces India’s diplomatic room when critical issues come to vote in the IAEA and other multilateral arrangements.

Supporters of the deal in the US say that such conditions are a sign that India matters today. Maverick moves, such as hugging Saddam Hussein or making common ground with Iran’s Mahmoud Ahmedinejad may be an option for irrelevant countries, they point out, but powerful nations have to be mindful that they have a stake in the system. Nevertheless, South Block strategists should be wary of the implications of this deal, going forward.

Another key provision of the India nuclear bill is that it has a clause to ban nuclear dealings with India if New Delhi conducts an atomic bomb detonation. While India has a voluntary moratorium on nuclear testing, it may not continue should Pakistan or China test their bombs again. In fact, the US itself may conduct a test in the future, if one is to believe the rumblings from right wing circles here.

The Ayatollahs

As expected, the biggest opponents of the India-US nuclear deal are the powerful nonproliferation “Ayatollahs” in Washington. These include former nonproliferation bureaucrats like Robert Einhorn (nonproliferation czar for Bill Clinton), Henry Sokolski (Pentagon nonproliferation guru for George HW Bush) and Leonard Spector (from the Jimmy Carter administration). Also in the mix are lobby groups and think-tank experts on nonproliferation, including Daryl Kimball (Arms Control Association), David Albright (former UN inspector), Joseph Cirincione (Carnegie Endowment) and Baker Spring (Heritage Foundation). To add to this, former Senator Sam Nunn, who is an influential figure in

the nonproliferation circles, has now come out openly against nuclear trade with India.

The nonproliferation Ayatollahs have not even tried to make a pretense of presenting balanced arguments and have pulled out all stops to torpedo the legislation. David Albright, for instance, came out with a recycled “research paper” alleging that the Indian Department of Atomic Energy procures illicit nuclear material from the Pakistani A.Q.Khan network. Many Congressional staffers have begun using it to smear India’s nonproliferation record.

Robert Einhorn, who is reviled in India for his key role in the pusillanimous Clinton administration policy in the face of China-Pakistan nuclear commerce, has now come out arguing that Congress mandate an Indian weapons cap before this deal is sanctioned. Virtually every expert believes that any such “fissile cap” requirement will cause India to walk out of this arrangement.

The significant point here is that there is immense opposition to this deal from both sides of the political aisle. Many members of the Congressional India Caucus have also been mysteriously reticent about the nuclear legislation. Usually when a lawmaker is unwilling to take a position, he or she is waiting to see which way the wind blows before picking a side. It will be imperative for deal supporters therefore to generate positive momentum for this agreement. However, there seem to be hardly any pro-Indian experts who are able to rebut the nonproliferation-based arguments against the nuclear deal. A former US government official who supports the nuclear deal told HardNews that the Ayatollahs are inundating Capitol Hill with their propaganda. “Those in favor of the deal have to take a more aggressive Hill-centered campaign,” he noted.

Sino-Pakistan nexus

As always, whenever anything positive is in the works for India, China and Pakistan waste no time in their efforts to scuttle it. Soon after the Indo-US nuclear deal was announced, Chinese and Pakistani embassy officials began reaching out to sympathetic think-tank figures to warn of an “arms race.” 

China is also trying a second approach. As part of the India-US deal, Washington has promised that it will lobby to get an India-specific exemption from the Nuclear Suppliers Group cartel. However, China is also an NSG member and since NSG operates on consensus, Beijing is now trying to stall American moves there and try to get a similar cutout for Pakistan. However, this is a double-edged sword because China needs NSG members’ cooperation in its plans to massively expand nuclear power production. NSG members are already uneasy about Sino-Pak nuclear ties and any aggressive move by Beijing may jeopardize China’s many pending nuclear procurement deals with Australia, US, France and Canada, all of whom are big nuclear suppliers. It is possible that China is doing this to try and scare off the NSG from giving India an exemption. However, State Department officials have gone on the record opposing any moves by China to give similar exception to Pakistan in the NSG.

Cautious optimism

The Bush administration too is making an all out effort to push this deal through Congress. Secretary of State Condoleezza Rice recently gave a tour-de-force performance by testifying to both houses of Congress on the same day and strongly pushing Congressmen and Senators to vote for this deal. Given that the Republican Party controls both legislative houses in Capitol Hill, it should not be too hard for a sitting Republican President to get people over to his side. The administration is asking Congress to vote by May, which is typically when party funds are released for mid-term elections slated for the end of 2006. Even key Democrats like Senators Joe Biden and John Kerry have come out in support. However, given that Bush’s approval ratings are heading south, anything can happen. Another factor to consider is Iran. Should things heat up in the Persian Gulf, Congress may not be willing to pass the nuclear deal quickly.

All said, most supporters of the nuclear deal are cautiously optimistic about Congressional clearance. One big reason is the overwhelming support of the business community, which is looking at grabbing a slice of nuclear related Indian market, estimated at $100 billion over the next few decades. Defense Contractors like Boeing and Lockheed Martin are also pushing for this deal because they sense that India may finally be convinced of America’s dependability once a 30-year old nuclear policy is booted out just for New Delhi’s sake.

That could give Bush huge leverage especially on vulnerable lawmakers seeking reelection. India has smartly decided to hire lobbyists from both sides of the aisle to clear the agreement. Amidst all this, the voice of the wealthy and successful Indo-American community seems to be feeble.

The author is a freelance defense and strategic analyst based in the US. He can be reached at contact@kapisthalam.com