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Congress and the U.S.-Indian Nuclear Deal
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June 20, 2006


Rep. Howard Berman (D.-Calif.), Senior Member of the House International Relations Committee. Rep. Berman has served in Congress since 1982 after serving in California's state legislature and practicing law. He introduced legislation (H.R. 5430) on May 19 for establishing criteria that non-states-parties to the nuclear Nonproliferation Treaty must meet to be eligible for civilian nuclear trade with the United States.

Robert Einhorn, Senior Advisor, International Security Program at the Center for Strategic & International Studies. His last position in a nearly 30-year U.S. government career was as Assistant Secretary of State for Nonproliferation. In 2001, he was awarded the Secretary of State's Distinguished Service Award.

Henry D. Sokolski, Executive Director, Nonproliferation Policy Education Center. He served as Deputy for Nonproliferation Policy in the Office of the Secretary of Defense during President George H.W. Bush's term. For his work, Sokolski received the Secretary of Defense's Medal for Outstanding Public Service.

Daryl G. Kimball, Executive Director of the Arms Control Association.

Edited Transcript by the Arms Control Association


DARYL KIMBALL: I want to welcome everyone this morning to the Arms Control Association. I want to briefly introduce the speakers we have here today and address how we are going to run the discussion. With me are Bob Einhorn from the Center for Strategic and International Studies and Henry Sokolski of the Nonproliferation Policy Education Center. We are also glad to have Congressman Howard Berman of California, the second ranking Democrat on the House International Relations Committee. His schedule didn't allow us to have him here with us today but he has agreed to join us by phone for 15 or 20 minutes this morning. What we wanted to do this morning is to allow Congressman Berman to give us his overall perspective on the U.S.-India deal and to outline his legislation, HR5430. We have copies here. He will then take reporters' questions and then we will have the experts here in the room make very brief comments, including a an overview of a new letter to members of Congress outlining our concerns about how U.S. civil nuclear cooperation may indirectly assist India's nuclear weapons program, which would be a violation of U.S. obligations under Article I of the nuclear Nonproliferation Treaty.

I want to thank you congressman for your attention to this issue and your leadership with your legislation. We're interested in hearing how you see things shaping up on the committee with this proposal. The floor is yours.

HOWARD BERMAN: Thank you, Daryl. It makes sense for me to make a few comments then if there are any questions for me, I would be happy to answer them. I have put in legislation HR5430. Of course, that is not going to be the bill that is marked up. Everything I'm told leads me to believe that [House International Relations Committee Chairman Henry Hyde (R-Ill.)] will be introducing his own bill. At this point, we hear that Henry is planning to ask the committee to mark this up next week, but it hasn't been formally introduced.

Here's where I come from on all of this. I'm a very strong believer in the importance of deepening our strategic partnership with India. In the jargon of Capitol Hill, I consider myself passionately pro-India. I also am a realist. India has nuclear weapons. We are not going to change that fact. Therefore, I think we have to move ahead understanding that that is a condition which is going to exist for the indefinite future. I'm also not opposed in any fashion to an appropriate nuclear cooperation agreement for nuclear energy purposes with India. I think that might make some sense and I'm quite happy to see that happen.

But I do have serious concerns about the deal that was negotiated by the administration. Secretary of State Condoleezza Rice and others in the administration have said that this is a strong "net-plus" for nonproliferation. I challenge that assertion. If we're going to change long established rules on nuclear trade for one country, even a friend of the United States, like India, I think there has to be a compelling nonproliferation gain on the other side. Otherwise, I feel that we are risking the unraveling of the entire nonproliferation regime. I'm particularly concerned that the agreement does nothing to limit India's production of fissile material for nuclear weapons, even though all five nuclear-weapon states [China, France, Russia, the United Kingdom, and the United States] have halted the production of fissile material. Many nonproliferation experts make a compelling case that this deal actually incentivises and enables India to increase its production of plutonium for nuclear weapons because importing nuclear fuel will allow India to dedicate all of its scarce domestic uranium for weapons production if it so chooses.

We're not the only ones saying this. Yesterday's edition of The Hindu, an Indian newspaper, quoted a top Indian foreign intelligence official making exactly the same point. Henry Sokolski and others have written a letter, which you may already have seen, that raises some interesting questions about whether this deal violates our obligations under the [nuclear Nonproliferation Treaty (NPT)] not to assist another country's nuclear weapons program for that very reason.

The bill I authored, HR5430, would establish a country neutral framework for U.S. civilian nuclear cooperation with countries that are not signatories to the NPT. I thought that was more defensible than an India-specific approach. It sets a number of conditions for nuclear cooperation, including, most importantly, a halt to the production of fissile material [highly enriched uranium and plutonium]. It also corrects what I consider to be a fundamental flaw in the administration's legislative proposal by providing Congress with a simple up and down vote once the actual [U.S.-Indian bilateral 123] nuclear cooperation agreement has been negotiated. I never thought my bill would be the vehicle for moving forward with the India deal, as I mentioned, but I introduced it to help generate a debate on some of the issues. I think we've done that. The real focus is going to have to be on Henry Hyde's bill. I'm going to work with him to try and incorporate some revisions that that could improve the bill. But to the extent that the final version doesn't address some of my key concerns, I am planning to offer some amendments at the markup.

I am going to mention five specific priorities I have in that process. First is to require a halt to the production of fissile material for nuclear weapons. Second, assuring that Congress is able to amend the final nuclear cooperation agreement and then approve it by an affirmative majority vote with appropriate procedures for expedited review. We don't want to stall this by non-action, but we should be able to see the final agreement before we give our final approval. Third, I'm concerned that there is a lot of talk both at the time of the agreement and since then that the safeguards agreement that India wants to negotiate would be India specific. I want to see the bill require that the safeguards agreement that India negotiates with the International Atomic Energy Agency (IAEA) is consistent with standard IAEA practices and that it doesn't deviate from those fundamental provisions that the IAEA requires in its standard safeguards agreements. Fourth, I want to maintain provisions in current law that require termination of nuclear cooperation if India tests a nuclear weapon or violates IAEA safeguards. Finally, I want to prohibit the president from helping India receive nuclear technology from other countries if those transfers would be illegal under U.S. law. I think I should stop here. I know that Daryl, Bob, and Henry can amplify these and other points that they plan to make.

KIMBALL: Thank you very much. That was a very good overview of what your bill does and the situation. Let's open up the floor here to reporters for questions for Congressman Berman. Bob, Henry, and I will be able to amplify if necessary.


QUESTION: I have a couple questions, congressman. First of all, on the country-neutral aspect, China reportedly also is favoring some kind of formula like that because China wants to reopen the option of having future deals with Pakistan. Are you worried that the country-neutral provision would leave the door open to future kinds of deals like this with other countries?

BERMAN: I am certainly worried about that kind of deal. That's part of my concern with this agreement. But our laws don't govern China, they govern the United States. My fear is whether we pass a country-neutral law or an India-specific law, that China will, if it doesn't have the right kinds of protections and take the proliferation issue seriously, go to the Nuclear Suppliers Group (NSG) and to the IAEA and say that it wants to do a similar thing with Pakistan. I think that's a very serious negative about the current approach. I don't think that depends on whether our bill is country neutral or India specific.


QUESTION: There have been several proposals, by Congressman Tom Lantos (D.-Calif.) and by the Council on Foreign Relations, of having this two stage approval process where Congress would take up initially a general resolution of support and then defer the substantive vote until the safeguards agreement and the 123 agreement are in place. Do you have any views on how effective that would be or whether that's an advisable way to go.

BERMAN: It's better than the administration's proposal, but not good enough. I think it's appropriate for Congress to speak about specific requirements it wants to see any agreement contain. That two stage process doesn't envision putting out any substantive markers for the administration to consider in negotiating the agreement. But it is better than just signing off now and having no say later.


KIMBALL: As Congressman Berman said in his opening remarks, one of the objectives of his legislation would be to make sure that congress retains the authority to amend the section 123 agreement. That is not what Congressman Lantos has proposed. He has proposed, as I understand it, an expedited process that would not allow for any amendments that might help correct any problems that do emerge through the negotiations between the United States and India on that section 123 agreement.

BERMAN: As I understand it, even under current law, a nuclear cooperation agreement, which does not require full-scope safeguards-and this one doesn't-can be amended by the Congress. We had a long protracted history before the U.S.-China nuclear cooperation agreement went into effect. I think it's very important to retain that ability to not just have an up or down [vote], but to amend that final agreement.


QUESTION: A technical point. In the upcoming markup session, will the legislators be looking at all aspects, all proposals, that have been put forward by the legislators, and eventually come up with some kind of a consensus.

BERMAN: Well, I hope so. But, by in large, that will be up to the chairman: whether he wants to try and achieve a consensus or whether he wants to place a bill that still has a great deal of dissent and controversy. Around here, consensus is nice, but all that's required is a majority.


QUESTION: Another quick question on a broader aspect of the nonproliferation question. How do you see this India deal against the backdrop of what's happening in North Korea now with the threat of a long-range missile test?

BERMAN: I would not place India in a category with North Korea. But I certainly believe that what we sometimes refer to here as the rogue states-the ones that either have or are seeking to get a nuclear weapons capability-are going to use this effort to justify their own position and try to make good propaganda out of it. One of the factors, interestingly enough, that we deal with in our bill is adherence to the Missile Technology Control Regime (MTCR). One of the requirements for a non-NPT country to participate [in civilian nuclear trade with the United States] would be a commitment to adhere to that regime.


QUESTION: We hear that the chairman's bill is close to being completed. Do you have a sense of where it comes down on the five key points that you just outlined?

BERMAN: I'm sure it won't contain a halt of the production of fissile material. At this particular point, we'll wait and see to judge on some of these other issues. But I will be pleasantly surprised if it covers these specific issues that I raised in the way that I would like to see them covered.


QUESTION: A quick housekeeping question. Any reason why the markup was postponed? It was supposed to be tomorrow. Is it because the chairman is still entertaining these bills? What is the process now with your bill? Have you referred it to the committee already?

BERMAN: My bill is referred to committee. The chairman gets to decide what the base bill is, and I have no doubt that he will decide, as I would if I were chairman, that the bill he's sponsoring is going to be the base bill for the markup. So all the other proposals, including mine, may be a frame of reference for the debate and the source for amendments, but it will not be the bill that we start with.


QUESTION: Is the markup next week a done deal?

BERMAN: No, we have not gotten a formal notice of it. Two weeks ago, we thought this would be the week. Things change. But generally I have a sense that they're, at this point, planning to mark it up next week.


QUESTION: How important is time a factor in all this, given that you're looking at the end of summer and then when we return in September, you're going to be looking at November?

BERMAN: I think for the administration time is very important. They are pushing very hard to get this moving. I think there are many in Congress who think this is a very important and complicated issue. It's of course taking some time to understand all the ramifications of it, but the administration has a different view, and their party does control.


QUESTION: There is a school of thought that thinks that people like you are putting in all these amendments more because of some sort of political nature; that you have the president on the ropes and why give him some kind of a victory just before the November elections. Is there any truth to this contention?

BERMAN: Absolutely not. The only concern that motivates me is the concern about the type of agreement that is being talked about from the initial announcement and subsequent reports, and to what extent it undermines our nonproliferation goals. As I mentioned in the beginning, I consider myself pro-India. I accept that India has nuclear weapons and that we have to be realistic about it. I'm not averse to a nuclear energy cooperation agreement; the right kind of an agreement. There is nothing in what I'm doing that seeks any kind of partisan advantage. If this were a Democratic president proposing the same agreement, I would be making the exact same points.


KIMBALL: If I might just make a point about the corollary to your question. Given the scale of the changes that are being proposed by the administration through this deal, I would argue and I think my colleagues would agree, that that is reason not to rush it in order to gain any political advantage by the administration. They should be willing to take the time necessary to work through these issues, and preferably not to present the proposal to exempt India from certain parts of the 1954 Atomic Energy Act until the section 123 agreement for nuclear cooperation and the IAEA safeguards negotiations are completed.

BERMAN: I think a little bit of the problem we're in now is because the administration did rush here. I think they imposed on themselves a time certain to get this done, and, as a result, conceded some points that didn't need to be conceded.


QUESTION: Are you getting any feedback from members of the Nuclear Suppliers Group on what this could mean for the NSG in the future.

BERMAN: The only conversations I've had were with some diplomatic representatives of several of those countries. I have to say that at least in one conversation they looked at this as new opportunities. People who have a lot of uranium see a new export opportunity.


QUESTION: You are a little pessimistic regarding your five priorities during the markup. Maybe fissile material cutoff might not be a good markup proposal by Chairman Hyde. Where is your bottom line? On nuclear testing, do you need any blocking measure for preventing future nuclear testing by India? There must be a bottom line for Democrats.

BERMAN: I don't think the members of the committee are looking at it as Democrats and Republicans, or at least let me speak for the Democrats. Even within our own Democratic membership on the House International Relations Committee, we have many different views. There is no party position as such. Some have endorsed the deal enthusiastically. Some Republicans have expressed some real reservations about the deal. I know that in almost everything else we're doing around this place at this time, the partisan consideration tends to dominate. But on this one, I don't think that's the case. By the presence of Henry [Sokolski] and Bob [Einhorn] there, you are bridging a wide range of philosophical and partisan differences.


QUESTION: Can you say a little bit about what kind of political support you have for your proposals and what you expect to happen based on the conversations you've had with your colleagues?

BERMAN: The political support I feel that I have is the force of the argument from almost every nonproliferation expert that I've worked with over the years: people inside the Reagan and Bush I administrations, people inside the Clinton administration, people who once were in this Bush administration, and people in the different think tanks and universities for whom nonproliferation has been a priority. The very strong consensus of those people who I've worked with on issues having nothing to do with India is that this framework agreement is woefully lacking in some very important provisions to make sure that this doesn't undermine nonproliferation. So that's where I feel that my strongest support comes from. The people who really know this area have real reservations about it.


QUESTION: But other members?

BERMAN: There are definitely other members who have concerns, but I don't have a vote count for you. Of course, not only the administration, but other forces are strongly supportive of that framework agreement. So I'm not here to make any predictions about what's going to happen in committee because I think it's much too soon to tell. But I think the best thing that I have going is the merits of the argument.


KIMBALL: That's actually a good transition to the next part of our session this morning. Thank you Congressman Berman for being with us and we look forward to working with you in the next several weeks.

I will provide a very brief overview of where we understand the committees, in both the House and Senate, to be. I want to give you a checklist of the things that we might be looking for. Robert Einhorn will amplify some of the points that Congressman Berman was making about what we think needs to be in this agreement. Henry Sokolski will provide a summary of the arguments that we and some other experts have been making about the indirect assistance problem which Congressman Berman alluded to.

Congressional schedules are about as easy to predict as hurricane landfalls. Having said that, everyone is expecting June 27 and June 28 to be the dates when the House International Relations Committee and the Senate Foreign Relations Committee have hearings that seek to markup the chairmen's respective texts on this agreement. They could slip. Congress is out for a short recess next week. But that's what everyone is looking at and from all accounts I think it is probable.

As we look at this proposal and the concerns that Congress has, they fall into two basic sets of categories: concerns about procedural matters and concerns about substance. Congressman Berman was going back and forth between these. Based on our information, what I expect Congressmen Hyde, and Senators [Richard] Lugar (R-Ind.) and [Joseph] Biden (D-Del.), who have been working on a draft bill, to do primarily is to address most of the several procedural anomalies that were contained in the president's proposed legislation. Now, if you recall, President Bush's legislation called for exempting India from section 123 a.(2) of the Atomic Energy Act, which is the full-scope safeguards requirement for civil cooperation with another state. It also called for Congress to treat the subsequent section 123 agreement for nuclear cooperation as a "non-exempt" agreement; that is treating this as if India met all the requirements. If it is treated that way, the only way that Congress can block it is through a joint resolution of disapproval, which would have to necessarily be disapproved by a two-thirds majority because the president could veto and send it back, and Congress would need a two-thirds majority to override that veto.

There are various other issues on substance related to what kinds of safeguards are going to be in there: what are the terms of the section 123 agreement, and are there any other conditions upon Indian nonproliferation behavior that clarify their commitments further from the July 18 proposal, or go beyond that? What I expect that we will see is the two chairmen arguing that the section 123 agreement should be treated as an "exempt" agreement, as Congressman Berman was suggesting, Congress should have the authority to make an affirmative vote in order for it to move forward. I would expect that because of administration pressure, the chairmen's proposals are going to call for expedited procedures for evaluating that 123 agreement. In other words, it might disallow amendments, which we and Congressman Berman think is not wise.

The chairmen's marks will probably require that the basic safeguards agreement with the IAEA cover all civil facilities and last in perpetuity regardless of any assurances of fuel supply. As I understand it, or at least it's unclear to me at this stage, how the chairmen's marks deal with what the terms of the section 123 agreement should be and what the conditions for termination will be. These are still being debated. These have been points of contention as they've been drafting this in consultation with the administration. Beyond that, it is hard to see whether the two chairmen are going to be able to tackle some of the other issues of concerns to us, including the fissile material cutoff matter, and the problem that we see of the United States providing India with some assurance of fuel supply even if the U.S. supply of fuel is terminated.

As I see the situation, it will be up to Howard Berman and other members of the Senate Foreign Relations and House International Relations Committees to try to amend and to fortify the chairmen's bills. How things will come out in the wash, I'm not sure. As the congressman said, nobody has done a head count, in part, because we don't know what the chairmen's drafts will look like. This could all happen relatively quickly in the course of a few days or it could drag out if members of these two committees are not satisfied with the chairmen's bills. If members are not able to make amendments or are not able to understand certain features of the bill, they may, especially in the senate, urge the chairmen to take more time to deal with the issue. That's a quick overview of what we understand to be the status and the process.

You also have to keep in mind that even after the chairmen's draft bills are marked up, possibly with amendments, they have to go to the floor of the Senate and the floor of the House of Representatives. The floor of the House is of course run a little more tightly due to its rules. I think most of us believe that the House would take time to act on a bill that comes out of the House International Relations Committee. That's not so certain regarding the Senate Foreign Relations Committee. In the Senate, it is not clear whether there will be time to do this. It is up to the majority leader, and to some extent other members who may want to take up additional time, as to whether it goes on the Senate's calendar. It's hard to predict what happens after these two committees do their work.

Let's turn to Bob Einhorn to amplify some of the points that Congressman Berman made and then Henry if you could tell us more about the letter.

ROBERT EINHORN: Congressman Berman covered many of the points that I was going to make, and covered them very well, so I won't repeat them. I just want to mention two points in addition. First, on the question about Pakistan and its eligibility and so forth. As I read Congressman Berman's bill, it would make all non-parties to the NPT, other than North Korea, eligible for cooperation if they met certain specific requirements. As I look at those requirements, I see several that would mean Pakistan would clearly be eligible, but it would not qualify in the near future under current circumstances. I'll just allude to some of those. The president has to certify, for example, that the non-party is playing an active and constructive role in addressing nuclear proliferation challenges posed by states of proliferation concern, preventing illicit nuclear transactions, and eliminating illicit nuclear commercial networks. Also, that country would have to have established and successfully implementing an export control system capable of effectively controlling transfers of nuclear and nuclear-related material, technology, and related data, including stringent rules and procedures prohibiting unauthorized contact and cooperation by personnel with nuclear expertise. If you look at those two requirements, what they tell you is that Pakistan would have to do a lot more to ensure the president in this case that it is capable of avoiding another A.Q. Khan situation in the future. So I think that's how the congressman's bill protects against prematurely admitting for eligibility countries that are not yet ready for that.

Let me just make one more point and that's about Iran. I don't expect the issue of Iran to be dealt with in any specific legislation. It's not going to be mentioned explicitly. But the Iran question will be in the back of the minds of the legislators as they consider this U.S.-Indian civil nuclear cooperation deal. A key administration argument for the deal is that this will help make India a partner with the United States in dealing with the current proliferation threat. The most urgent proliferation threat we face today, in my view, is Iran and its desire to have an enrichment capability that will give them nuclear weapons capabilities. A key test is whether India is genuinely a partner in dealing with this challenge. Now, India did two welcome things this last year. It cast two votes in the IAEA Board of Governors: last September to find Iran in non-compliance with safeguards obligations and then in February when it joined other IAEA board members when it voted to report Iran to the UN Security Council. Of those two, frankly, the September one was harder. The February one was politically much easier for India because it had the company of China and Russia and Egypt and Brazil and lots of other countries. But that's India's claim for being a constructive player in the Iran issue. But in some other areas, I don't think India has been very constructive. I would refer you to a Nonaligned Movement (NAM) statement at the foreign minister level, which was agreed at Kuala Lumpur on May 30; just several weeks ago. If you read this statement, it's clear that this NAM statement, which had the support of India, is diametrically opposed to what the Bush administration and its European friends are trying to do on the Iran issue. It specifically says that negotiations should be resumed without preconditions. The P-5 plus Germany in its proposal demands that Iran should completely and immediately suspend all enrichment activities. The NAM statement rejects that. It welcomes Iran's cooperation with the IAEA. The IAEA Director-General [Mohamed ElBaradei] has reported several times that he is not receiving Iran's cooperation. [The NAM statement] says that all countries must respect other countries' choices in terms of its nuclear fuel cycle. That's completely opposed to the philosophy of what the six [the P-5 plus Germany] are trying to do. India's joining this NAM statement suggests to me that India is not yet a full partner with the United States in dealing with today's most urgent proliferation challenge. As I said before, [Iran] is not going to be an issue that is worked in the language of a bill, but it will be in the back of people's minds as they move forward with this legislation.

HENRY SOKOLSKI: The comments made about Iran, the question about North Korea, should try to center our own minds on why the India deal actually may be related to other things. Proponents of the deal do not want you to think about the connected conductivity of this deal to anything else. They want you to emphasize the focus on the good relations that we could have with India. The problem is that the world doesn't work simply the way the proponents want. Things are connected. In the case of Iran, you've just heard Bob Einhorn explain India, which has a strategic cooperation agreement with Iran, may want to have things both ways. I think in addition, when you think about North Korea and the Indian deal, there is a connection. In the case of North Korea, they broke the rules, they got the bomb, and they withdrew [from the NPT]. So far, nothing has happened. Now that doesn't tend to make the rules look very good. If you flip that 180 degrees and give all the benefits of having followed all the rules to a country like India, which violated its peaceful pledge to the United States and Canada and tested nuclear weapons (some people argue when it was not clearly necessary), you get a 180 degree picture of how you could make the rules look even less significant than they were simply by letting North Korea get away with what it got away with. In the case of Iran, you do have a problem. Everyone keeps saying, "Well, Iran's not India."


India uses 150 tons of uranium for their weapons program. Well, they're running out [of uranium]. There's a 150 tons a year shortfall, and they're relying on a stockpile that's been there for years and that's dwindling. It's going to be exhausted, most experts think, by this year. We are coming to the rescue. We are going to save India from having to make a choice between peaceful nuclear activity and weapons activity. So when you read the administration's answer to whether Article I of NPT [will be] violated, you'll see that they kind of obfuscate this. It was that obfuscation that so irritated several people on this letter that we decided to write it. Had the administration been more modest and more honest, this letter wouldn't have been written. But they went too far with the answer they gave. They gummed the bullet. We should be under no allusion about what's being violated. That's the reason why you need to do something, like the Berman bill tries to do, to either cap the fissile production or safeguard lightly enriched uranium activities as far as highly enriched uranium production capabilities in India. None of that's being done. As long as none of that is being done, what you're doing is breaking the rules for very marginal benefits. You have to get something more if you're going to violate the rules the way we're doing. Congress needs to focus on that.


KIMBALL: Guests, the floor is yours again. Questions for us about any other issues that we've raised?


QUESTION: In his interview with The Financial Times, Senator John McCain (R-Ariz.) in effect says that this thing is not going to go through before the end of the year.

SOKOLSKI: Spoken like a true senator. He understands the free play of what happens when you have 100 individuals, rather than blocs.


KIMBALL: I'm not sure what his reasoning is. But it's pretty clear that the Senate has a lot of business to do in a short number of days. It's an election year. The majority leader, Bill Frist (R-Tenn.), has put several issues on the floor that are aimed to show differences between Democrats and Republicans. This one, I don't think, does so because there are Democratic and Republican concerns and there's Democratic and Republican support. My interpretation of what McCain is saying, going back to our earlier discussion, is that this is his best guess. We're not going to get to this controversial issue, in a busy year, even after the Senate Foreign Relations Committee deals with this. It's still a controversial issue that's going to take days of debate on the floor. Do they have days of debate time for this issue on the floor of the Senate?


QUESTION: What are the implications if this doesn't get through this year? Two-part question: one, you have a congress that comes back as it is and, two, it comes back entirely different in its makeup.

SOKOLSKI: Well, first of all, let me introduce you to American political science. We know how to apportion zones for voting in such a way so that last time we had an election only two seats changed in the House. It's not clear how these elections will go, first of all. Second of all, I focus your attention to the last paragraph of this letter which notes that India's foreign secretary recently acknowledged that the deal may not get by Congress, but this would not affect closer ties with the United States. I think he got it right. I think the drum roll and drama associated with this agreement is so hyped and overblown, it's harmful. I sat next to the former head of the Atomic Energy Commission of India, and this was in November, and someone at that time asked the same question, what happens if this doesn't go through? Without missing a beat he said, "Well, I would focus on clean coal." I think he got it right again. I think the Indians understand life better than we do. We are in such drama here in the United States because of lobbying efforts to make this into the end all be all. We've forgotten what it's about. This is supposed to help relations, not be the test of whether there are relations.


QUESTION: There are so many parallel strands going on. Am I right in thinking that as this is going through in Congress, we have separate talks going on between India and the IAEA and am I right in saying that the Bush administration is still negotiating as we speak with the Indians? Then, you've got the whole NSG process. If I were a congressman who couldn't get my head around this, surely the easiest solution would be, why don't we just wait until the Bush administration and the Indian government sort out what their agreement is, and get them to sort out what their agreement is with the IAEA, and then we rule on it. This is what Berman's thing is about: having the right to amend. Why is the administration trying to get them to agree to something that they haven't yet agreed themselves, and do we know what this final agreement will look like?

EINHORN: I'll give you one explanation. Within India, there is considerable domestic opposition and concern with respect to this agreement. The critics on this side say that the Bush administration didn't get enough out of the deal, but the opponents in India also say the Indian side didn't get enough from this deal. The Indian critics would like to see concrete evidence that the United States is going to implement this deal; concrete evidence in the form of legislation changing American law. They would like to see that upfront, before India takes some hard decisions on what the so-called 123 agreement would look like and what the IAEA-India safeguards agreement would look like. So they are pressing the administration to press the Congress to move ahead. They want to see U.S. law change before they will take decisions on these other issues. U.S. critics of the deal want to see it the other way around.

What you suggest is very logical. If I were a member of Congress, I would like to see a completed 123 agreement and a completed IAEA-Indian safeguards agreement because each of them will be unprecedented. They will be unlike perhaps any other agreements. The Indian government has said that the safeguards agreement will be India specific. The IAEA may have different views, by the way, on that. But we don't know how this is going to come out. So many on this side would like to do what Congressman Lantos wanted to do, pass a general resolution welcoming this deal, but saying that we're not going to consider it legislatively until we have these other two agreements in place. The administration didn't like the Lantos proposal. They want to move now.

Another reason the administration wants to move now is that things become unpredictable in 2007 with a new Congress sitting. They would like to grab an agreement now. They would like very much for the two committees to report out bills before July 4 and they would like both chambers to adopt a bill sometime this summer. If there are discrepancies between them, and there are likely to be, to conference them to remove any inconsistencies and have it then endorsed by both houses and sent to the president for signature. I think that's an optimistic time frame for the reasons we've discussed. Especially for deliberations in the Senate.

SOKOLSKI: This is worth dwelling on. It's a harsher view that I have. I think the critics in India, and if I'm reading them carefully, want no deal. They'll throw up anything to try to get this thing slowed down. In many respects, the worst of the critics of the deal here are not totally dissimilar in some respects to the worst of the critics in India. They're disingenuous. They don't want to face it that this deal is coming down, and it's coming down.

I think more important, though, is November. It's not like if there's a bunch of Democrats running the House it's going to be any different since they're divided on this deal anyway. The deal will go forward. In some fashion or another, the deal will go forward. The question is how? The reason the administration is in a rush is they know darn well that they've just begun their 123 negotiations. You know what those negotiations consisted of? "Here's my deal. Oh, and here's yours. Well, we don't like yours, we like ours. We'll get back to you in a couple weeks." That was what the negotiation consisted of: an exchange of views that didn't reach any compromises on anything.

Let me tell you how the negotiations [between India and the IAEA] went in Vienna about a month ago. The Indians flew in and said, "You know, we would like Indian specific safeguards. We only want safeguards to apply when there's foreign fuel present. We want these facilities and those facilities to be open to inspection but we specify when." The head of the [IAEA] safeguards division said, "Here is an Information Circular 66 (INFCIRC 66) standards safeguards agreement. That's what we have to offer." The Indians looked at it, they got up, and in 60 minutes that whole meeting was over.

The likelihood therefore of the 123 agreement and the IAEA safeguards matter being settled anytime soon is very low. So what do you do? You get Congress to say, "We passed something." Then you hope to lean on these institutions to bend. When you get the legislation passed, three things happen. One, you don't have to really get a very tough 123 agreement because the legislation the administration wants is very loose on these requirements. Two, you may not have to get much in the way of an IAEA safeguards agreement under the deal because all it has to do is be acceptable in some fashion to the IAEA. It doesn't specify what will be in the agreement. Three, with the Nuclear Suppliers Group, the biggest fear raised [by some people] is that India and the United States might ignore the Nuclear Suppliers Group altogether and go ahead with this, which would be the beginning of the end of all the nuclear rules altogether.


QUESTION: Undersecretary of State for Political Affairs Nicholas Burns told me in an interview that this whole 123 agreement was just a technical thing, just a formality. Now, it has thrown up all these problems. What happened here? Burns earlier told us that this was just a formality. He didn't even want us to talk about it. He said that it was just a formality. It's just a technical thing. You guys don't even have to know what it's about. Did the Indians go back on this or what happened?

EINHORN: The administration tabled a draft 123 agreement [in March]. The Indian side studied it and then came back with a counter offer. According to Americans directly involved in this process, that left five or six significant issues unresolved. Not technical issues, but basic kinds of questions. Does India want to accept the notion in an agreement that the United States will terminate nuclear cooperation in the event of an Indian nuclear test? That's not a technical issue. Should the United States have consent rights over the disposition of any nuclear material provided to India? What India decides to do subsequently? Should the United States have those consent rights? The United States has those consent rights in every other agreement we have. India may object to giving the United States consent rights over the disposition of those transfers. That's not a technical issue. My understanding is that there are five or six such issues that at least were unresolved before the U.S. team went [to New Delhi in mid-June]. I haven't gotten a report yet on what happened last week in New Delhi. Similarly, the IAEA-India safeguards agreement is not simply a technical matter. It uses technical language to deal with these issues, but they're not technical matters. As Henry said, is India going to insist on safeguards arrangements that are unique or will they agree to what the IAEA seems to be pressing for, which is Indian conformance to the model agreements that everyone else abides by?


QUESTION: I want to go back to your point Daryl in your summary in the beginning about the bills. The way you describe it, I don't think you distinguish between the House and the Senate bills. It sounds like they were fairly similar and parallel. Is that the case and is their coordination between them?


KIMBALL: Well, you should talk to the staffs of the two committees. But I understand that there is substantial consultation. I understand that they have similar concerns. My suspicion is that they may address these concerns in different ways. There are different ways to skin the cat. We will find out soon how closely their strategies conform to one another. Theoretically, there are a number of ways you can do this. You can start with the administration's approach, exempt India from section 123 a.(2) full scope safeguards and then outline a different set of determinations the president must make before the agreement for nuclear cooperation can become effective and different terms under which the section 123 agreement would be considered by Congress. You could also use the existing procedures written into the Atomic Energy Act that could allow for civil trade between the United States and India if the president makes existing determinations that are already spelled out in law. So they may pursue either or both of these two different approaches.

One other thing I would just mention on the point about the importance of the section 123 negotiations. Another reason why I think the administration wants to rush this through is because I think they understand there are going to be significant problems between U.S. and Indian negotiators on the section 123 agreement. They want Congress to basically accept, adopt, and buy into this before they even understand what these problems are. I would note that the proponents of the deal, I think, have unfairly and inaccurately described some of the proposed conditions that we and others, Congressman Berman among them, have put forward, like the fissile material cutoff as a condition, as deal killers. I think it's quite clear that if India pursues its idea that the section 123 agreement should not give the United States the right to suspend cooperation if India conducts a test explosion is a deal killer. If there's any deal killer, that's a deal killer. That's in the law today. The United States is supposed to negotiate agreements that give us that right. It's quite an interesting kind of situation. That's one reason why they're pursuing it.

SOKOLSKI: It goes one step deeper. All of the 123 objections, or practically all of them, arise from provisions that were put into standard nuclear cooperation agreements because of what India did in 1974. [India conducted a nuclear test explosion in 1974 using imports from the United States and Canada that were designated for peaceful purposes use.] So I can see an Indian official saying, "Geez, we really object to that." But as an American, I say, "No, no, you made us put them in." So there's some history here.


QUESTION: Just a quick one about the United States maybe bypassing the Nuclear Suppliers Group. Wouldn't that go against the heart of the proposal when it first said that you're going to get all this done with the Nuclear Suppliers Group?


KIMBALL: Let me just clarify this point. U.S. officials on the record have said that they will seek consensus approval for this agreement through the Nuclear Suppliers Group. We did an interview with [Undersecretary of State for Arms Control and International Security] Robert Joseph, May 18, and he states this pretty unequivocally. Privately, and in some meetings, some U.S. officials have hinted that if there is opposition at the NSG to this, that they may seek some other route, maybe a majority vote. There's a report in Nuclear Fuel to this effect that came out on the 19th. I think we need to be clear about what that means. That would be the end of the NSG if countries start seeking majority votes when some other country has a problem. China may come along two years from now, and say, "We want to trade with Pakistan. We want a majority vote." The United States may set a precedent that we may regret. That cannot be the approach that the United States pursues.

SOKOLSKI: The Chinese in particular are worried that the NSG will be no more than a speed bump to people making exceptions and saying that it doesn't really matter. They're worried that this is the beginning of the unraveling.


KIMBALL: The way it's been described to me is that a majority of states at the 45-country NSG have concerns or are opposed [to the U.S.-Indian deal]. A minority supports it. As Congressman Berman said, those are states that might profit by selling technology and material to India. The question is will the small number of states that are steadfastly opposed, be able to stand up to the pressure from France, Britain, the United States, and Russia, in the end?

EINHORN: My guess is that if there were a secret ballot in the NSG, this proposition would be defeated by around 35-10, 38-7, something like that. But the NSG doesn't take decisions by majority vote. There are a lot of countries who really don't like this agreement and resent the agreement. But they just don't want to hurt their relations with India or they don't want to hurt their relations with the Bush Administration. So they're reluctant to stand up and say, "I exercise my right to block this agreement." There's only one country that has the standing to do that and I don't think China will do that.


KIMBALL: One final point before I adjourn us. We haven't talked too much specifically about the fissile material cutoff idea. I just want to draw you attention to one thing. The United States put forward a proposal a month ago at the Conference on Disarmament in Geneva that calls for a declaratory global fissile material cutoff treaty (FMCT) that would enter into force when the five original nuclear-weapon states agree to it. We should keep in mind that that proposal does not include a verification protocol. The United States opposes the verification of the FMCT because this administration does not think that this is possible. The Indian government supports the negotiation of a global FMCT, but one that is verifiable. They reiterated this position on May 18th in Geneva. In a polite little message, Jayant Prasad, the representative for India said, "Several proposals have been put forward in the conference to advance our work. The United States has presented its initiative earlier today. We hope that further discussion on these ideas and suggestions will help us collectively to move towards a consensus." Well, that's a polite way of saying, we disagree with you, we hope for the best, and we hope that no one notices the differences on substance between the United States and India on the FMCT.

One other approach that could be pursued, which is taken into account in Congressman Berman's bill, is if the United States and India are really serious on a fissile cutoff, the United States, India, Pakistan, Russia, China, Britain, and France could all sit down at a meeting and work out a declaratory agreement that says they will not produce fissile material for nuclear weapons purposes. That would achieve one of our key objectives and address this problem with Article I of the NPT that Henry was talking about. If they're serious about this objective, they could do that. We hope they will. Congress has an opportunity to encourage them to do so. I thank everyone for being here and making time for this briefing.




Posted: June 20, 2006