The Council on Foreign Relations just released a “Special Report,” U.S.-India Nuclear Cooperation by Michael Levi and Charles Ferguson. Mike and Charles are first rate thinkers but I disagree with almost every aspect of their report.

The report is seductively misleading because many of the recommendations make good sense given the presumptions and context of the report. But the presumptions and context are wrong. So first, we need to step back and examine the context. The authors state early on that “…the Bush administration has stirred deep passions and put Congress in the seemingly impossible bind of choosing between approving the deal and damaging nuclear nonproliferation, or rejecting the deal and thereby setting back an important strategic relationship.” [p. 3] This is true, but the problem is with the deal, not the implementation.
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An earlier FAS blog entry analyzed, and criticized, proposed legislation that grants the Bush Administration pre-approval of the details of an eventual nuclear trade deal with India. FAS has also organized a petition campaign to encourage members of Congress to vote against the legislation. (And blog readers are encouraged to sign the petition.) The Times of India picked up on the petition. The Times piece was, in my view, pretty good and fair. They did not agree entirely with the FAS position but I think the article did a good job of representing the FAS position.

Nevertheless, with the Times article, many in India learned of FAS involvement in the issue, resulting in a lot of emails to FAS and almost all of the letters were negative, specifically saying that the FAS position is anti-Indian. I can imagine that if all anyone knew about FAS was its position on the Indian nuclear deal, it might somehow appear that we have some gripe against India. And for those people, I simply ask that they view all of the work of the Federation. We have worked hard against what we believe is an oversized U.S. arsenal. We worked against the RNEP, or nuclear bunker buster. We are working now against the U.S. Global Nuclear Energy Partnership, or GNEP, that will restart plutonium reprocessing in the United States after a three decade hiatus. We have publicized the inflation of the Chinese threat and the growing importance of tactical nuclear weapons in military planning. (Once we figure out what the Reliable Replacement Warhead Program actually is, we might work against that, too, but we don’t think anyone is absolutely certain what the program is yet.)

The point is that FAS works to reduce the number and salience of U.S. nuclear weapons. We want to reduce the world’s nuclear weapons and fully realize that most of those are in the United States and Russia. We also oppose the Indian deal but not because we are anti-Indian but because we are anti-proliferation.

One of the tragedies of the Cold War is that a confrontation between the United States and Russia sucked in other “balancing” powers like China, India, and Pakistan. Due to circumstances that had little to do with India and the United States directly, the world’s two largest democracies ended up, certainly not enemies, but suspicious of one another looking across that divide. FAS, and we suspect an overwhelming majority of Americans, strongly support closer ties with India. India has some of the best scientists in the world and there are a hundred different ways that the United States and India could work together. Even in the area of energy research, programs in clean coal, carbon dioxide sequestration, wind and solar power, improved efficiency in buildings, transportation, and electricity transmission, could benefit from close U.S.-Indian collaboration. But not nuclear power, not with an agreement that critically undermines the Non-Proliferation Treaty.

President Bush has submitted an amazing piece of legislation to Congress that essentially strips Congress of its authority to evaluate and limit nuclear exports to India and asks Congress to approve whatever trade deal the Administration develops, that is, to approve the Indian nuclear deal months in advance, sight unseen.

Much was made of the nuclear “deal” arrived at by President Bush and Prime Minister Singh during Bush’s recent trip to India. But there really isn’t any deal, yet. What the President and Prime Minister really did was agree in principle to develop nuclear technology trade. The actual trade package will be a complex technical business arrangement. It will take at least months, perhaps a year or more, to work out all the details.

When the trade agreement is all spelled out, it must, under current law, be submitted to Congress for evaluation and, under some circumstances, approval. This is all spelled out in the Atomic Energy Act. The key section is 123, Cooperation with Other Nations. (Find it on page 1-52 of the linked document.) Section 123 lays out the requirement for sharing nuclear technology with another country. There are basically four sets of requirements set out in four paragraphs. (And bear with me, I am not a lawyer, so I too was a bit surprised to find a “paragraph” that was two and a half pages long.)

The first, paragraph 123(a), lists nine conditions that must be met. Most have to do with securing material and technology transferred under any agreement. All of these should be met but they can be waived if the President judges that requiring compliance would harm non-proliferation or national security. (Keep that in mind, we come back to it later.)

Paragraphs (b) and (c) describe reports that the administration must submit to Congress.

Paragraph (d) says that if all the reports are in order and have been sent to the right offices, then Congress has sixty days to disapprove the agreement by joint resolution. That is, the default is approval: if the Congress does nothing the deal goes through; Congress has to actively intervene.

Except, if the President invoked his waiver power up in paragraph (a). If there is a waiver, then the burden of proof is completely reversed. Now the deal does not go through unless the Congress explicitly accepts the waiver and approves the deal.

Bush wants this deal, whatever it turns out to be, to go through regardless of what Congress thinks. So the Administration would much prefer to have the default be that the deal goes through unless Congress specifically objects. Then Congressional allies can simply stall, never vote, and tacitly approve the deal.

There are two ways to deal with this. Bush could not invoke the waiver clause of paragraph 123(a), simply asserting that India has met all the conditions. This might not pass the “laugh test.” Subparagraph 123(a) (2), for example, states that for “non-nuclear weapon states” that all “peaceful” nuclear sites anywhere in the country be under IAEA surveillance. Ironically, part of the India deal is that, for NPT purposes, India will remain a “non-nuclear weapon state.” In any case, by not invoking the waiver when a reasonable person thinks it should be invoked, the President lays himself open to court challenge by members of Congress.

Thus, the second approach. Bush has submitted to Congress H.R. 4974. The bill is very short and simply states that the President can, at his discretion and only in the case of India, waive the requirements of 123(a) without activating the approval requirements of 123(d). With this legislation, whatever the India deal eventually turns out to be, it will be approved unless a majority of both houses of Congress disapprove the deal within sixty days by joint resolution, meaning they have to agree on identical language. Moreover, since the President can be expected to veto any attempt to block the deal that he just submitted, disapproval will in practice require a two thirds majority of both houses.

What this amounts to is that the Administration is asking the Congress to approve the India nuclear technology transfer deal in advance, sight unseen. Not even the President now knows what will eventually be included in the package but once this legislation is passed, the Administration can promise India essentially anything it wants with little to no concern about Congressional interference. The President does not have this authority with Britain or Canada. This bill constitutes a major attack on Congressional oversight prerogatives.

The Congressional Research Service has prepared an excellent issue paper on a possible Indian nuclear deal. Sam Nunn was cited in the Washington Post as saying a nuclear deal with India should be examined carefully.