Rep. Markey to Bush: India Nuclear Deal Must Abide by Congress’ Conditions for Nuclear Cooperation

*The third guest post by Max Postman, intern-extraordinaire at the Center

On Wednesday, July 25, the agreement on U.S.-Indian nuclear cooperation formed last week in Washington was approved by the Indian cabinet. The controversial deal, which would allow U.S. transfers of nuclear material and technology to a country that has always remained outside the Nuclear Non-Proliferation Treaty and developed nuclear weapons, must now pass muster with the United States Congress. Congress made an exception to U.S. laws to allow cooperation with India through the Hyde Act of 2006, but congressional permission came with several caveats concerning nuclear fuel reprocessing, permanent safeguards, and termination of cooperation in the event of an Indian nuclear test.

The day after the deal’s approval by the Indian cabinet, Rep. Edward Markey (D-MA) and 22 other members of congress sent a letter to President Bush stating that congressional approval of the deal would be “put in doubt” if the agreement does not comply with the conditions for congressional approval laid out in the Hyde Act.

Though the text of the deal has not yet been made public, Undersecretary of State for Political Affairs Nicholas Burns insisted that the agreement reached is “well within the bounds of the Hyde act.” However, press reports that the deal makes no mention of nuclear testing and allows Indian reprocessing suggest that the deal reached may be contrary to the spirit, and possibly the letter, of the non-proliferation provisions of the legislation.

If Members of Congress who have warned of the dangers of the deal, such as Rep. Ed Markey, oppose the implementation agreement provisions, they will have to muster majority support in both houses to block the deal. After the text of the agreement is released publicly, it will be possible to consider the question of Hyde Act compliance in more detail. And consider we shall!

See the full text of Markey’s letter below:

July 25, 2007

The Honorable George W. Bush
President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. President:

As you continue negotiations with India over nuclear cooperation, we write to underscore the necessity of abiding by the legal boundaries set by Congress for any such cooperation.

As you know, an Agreement for Nuclear Cooperation between the United States and India must be fully consistent with the letter and the spirit of the Henry Hyde U.S.-India Peaceful Atomic Energy Cooperation Act of 2006, and the Atomic Energy Act (AEA) of 1954 as amended. The Hyde Act and the AEA set the minimal conditions for nuclear trade with India.

We understand from press reports that there are differences between U.S. and Indian negotiators on several key issues which were addressed by the Hyde Act; the negotiations are therefore defined in large part by the necessity to comply with U.S. law. Among the minimal conditions under U.S. law are:

• No nuclear testing. Current law states that nuclear cooperation shall be terminated, and the U.S. would have the right to demand the return of all material, equipment, and technology, if India again tests a nuclear explosive.
• Permanent, unconditional safeguards. Current law states that the International Atomic Energy Agency safeguards applied to declared Indian materials and facilities must be “in perpetuity in accordance with IAEA standards, principles, and practices.”
• No fuel assurances if agreement is violated. Current law states that the United States should seek to prevent nuclear transfers to any country with which the U.S. has suspended nuclear cooperation. This would be triggered if India violates the Agreement for Nuclear Cooperation and the United States terminates cooperation, for instance if India tests a nuclear explosive.
• Reprocessing and Enrichment Prohibitions. Current law prohibits the transfer of sensitive nuclear technology to India, including uranium enrichment, plutonium separation, and heavy water production-related equipment and technology except under certain narrow circumstances. Congress also preserved the requirement for U.S. prior consent for the reprocessing or enrichment of U.S. origin nuclear material. As you correctly stated on February 11, 2004: “Enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.”
• Cooperation shall not assist weapons program. Current law states that no U.S. cooperation shall directly or indirectly assist India’s nuclear weapons program.
  
  

Article I. Section 8 of the United States Constitution provides the Congress with the sole authority to regulate foreign commerce. Through the AEA, the Congress has delegated the authority to negotiate international agreements concerning nuclear trade to the Executive, subject to certain restrictions. The Agreement for Nuclear Cooperation is subject to the approval of Congress, and any inconsistencies between the Agreement and the relevant US laws will call congressional approval deeply into doubt.

In addition, our concern over India’s ties to Iran have grown more acute with the formation this spring of a Joint Defense Working Group between the two countries. India’s deepening military-to-military relationship with Iran, even as Iran has continued to develop nuclear technology in defiance of repeated United Nations Security Council sanctions resolutions, places congressional approval of the Agreement for Nuclear Cooperation in jeopardy.

Sincerely,

Edward J. Markey
Howard Berman
Brad Sherman
Ellen Tauscher
Dan Burton
Henry Waxman
Jane Harman
Jeff Fortenberry
Adam Schiff
Rick Larsen
James Langevin
Mark Udall
Barbara Lee
Michael Capuano
James McGovern
Rush Holt
Doris Matsui
Raul Grijalva
Peter Defazio
Chaka Fattah
Rosa DeLauro
Lynn Woolsey
Sam Farr