Hyde-bound

Senator Henry Hyde. The Hyde Act is stacked with rules on proliferation, far in excess of what was required to circumvent extant U.S. law.-LARRY DOWNING/REUTERS

The Hyde Act was a major White House achievement at a time when the Bush presidency entered its lame duck phase.

ON December 18, 2006, United States President George W. Bush stood in the East Room of the White House with a phalanx of dignitaries, all of whom played a major role in the U.S.-India Peaceful Atomic Energy Cooperation Act (the Hyde Act, named after Illinois Congressman and Chairman of the Committee on International Relations Henry J. Hyde). Members of the India Caucus of Congress (such as Gary Ackerman, Frank Pallone and Thaddeus McCotter), Congressional leaders of the Foreign Affairs Committees (such as Richard Lugar), Indian Ambassador to the U.S. Raminder Jassal and Secretary of State Condoleezza Rice, who led the team on the U.S. side that began the open negotiations in 2005, were in attendance.

Clearly pleased with the Bills smooth passage through the U.S. Congress, Bush laid out its four key goals: to bring India and the U.S. together, to promote economic growth, to help India reduce its greenhouse emissions, and form a partnership against nuclear proliferation. There was no mention of Iran or of the Nuclear Non-Proliferation Treaty (NPT), and none whatsoever of the Atomic Energy Act of 1954 that this Bill sidelined. The main elements of the Bill found no place in the celebrations.

The agreement signed by President Bush and Prime Minister Manmohan Singh on July 18, 2005, triggered a provision in the 1954 Atomic Energy Act that prohibits the U.S. from selling nuclear materials to states that have nuclear weapons but who are outside the ambit of the NPT and the International Atomic Energy Agency (IAEA) monitoring system.

The initial reaction from Congress was cold. Opening a hearing into the agreement in November 2005, Senator Lugar, chairperson of the Foreign Relations Committee, pointed out that not only had India not signed the NPT (the foundation of international efforts to stop the spread of nuclear weapons), but its nuclear record with the international community also has been unsatisfying. Few expected the then Republican-controlled Congress to give the President the benefit of the doubt.

The two main objections were that the agreement violated U.S. and international law (or else weakened the regulation regime) and that the U.S. was being exceptionally generous with India at a time when it sought to be tough on rogue nuclear states (such as Iran and North Korea). Legally, the White House needed Congress to provide a path around the 1954 Atomic Energy Act. To get there, the Bush administration needed to manage the Republican concerns and isolate the Democratic objections. The Hyde Act, which was passed a year later with substantial margins, was a major White House achievement at a time when the Bush presidency entered its lame duck phase.

In 1997, John Bolton, who would later be Bushs Ambassador to the United Nations, wrote an opinion piece in the Wall Street Journal, in which he claimed, Treaties are law only for domestic purposes. In their international operation, treaties are simply political obligations.

The withering contempt for international law was visible early in the Bush administration, when the government reneged on the Kyoto protocols on climate change, walked away from the International Criminal Court in the Hague, denounced the U.N. as ineffectual, and promoted a vigorous unilateral agenda. The lead-up to the Iraq war was simply a culmination of this process.

Leonard Weiss, as staff director of the U.S. Senate Subcommittee on Energy and Nuclear Proliferation, was the chief architect of the 1978 Nuclear Non-Proliferation Act. This law created Section 123 and blocked the U.S. governments ability to conduct nuclear commerce with non-NPT states. Asked about the Hyde Act, Weiss told me that it became a battleground over the importance of international law as much as it enabled the U.S. government to sidestep its own laws. While Congress was prepared to accept changes in the non-proliferation law in order to accommodate nuclear cooperation with India, he said, it was not prepared to treat India as a nuclear weapon state under the NPT. Hence the restrictions on nuclear testing and on reprocessing and enrichment technology transfers.

The Hyde Act is stacked with rules on proliferation, far in excess of what was required to circumvent extant U.S. law. This, Weiss says, has as much to do with the Bush administrations desire to exert presidential or Executive Branch primacy over the legislature as anything. The administration wanted to reduce Congress statutory prerogatives of review over the nuclear deal, Weiss points out, but Congress rejected this ploy. The U.S. Congress, now controlled by the Democrats, will have a second look at the deal. But the Bush administration did make one significant gain. It reduced Congress ability to periodically review license applications for India before they are approved. Weiss, whose article on the deal will appear in the November 2007 issue of the Non-Proliferation Review (US-India Nuclear Cooperation: Better Later than Sooner), points out that the Hyde Act was designed to create an expectation of Congress ional approval, and to assert presidential privilege.

George Perkovich, author of the award-winning Indias Nuclear Bomb and scholar at the Carnegie Endowment, was confronted with officials across the world, from China to South Africa, who think that the U.S.-India deal is a very bad thing because it undermines global proliferation rules. On the back foot to an aggressive administration, Congress felt compelled, Perkovich told me, to repair some of the damage by putting in very modest, almost meaningless conditions to demonstrate that the U.S. had not completely abandoned responsibility for non-proliferation. On the one hand, Section 105 of the Hyde Act sanctimoniously pledges that the deal is not in violation of an obligation of the United States under the NPT, and then it says little about the question of limitations on the production of fissile material for weapons.

The ambiguity is so sharp that even a normally measured scholar such as Perkovich talks of the deal as a fig-leaf to create the appearance that the U.S. maintains the NPT, and to help prevent other countries from becoming even more angry at the way the Bush administration rewards its friends whether they follow the rules or not. But, Michael Krepon of the Stimson Centre told me: A norms-based system can only be harmed by seeking exceptions for friends, because profit takers [defence contractors and others] will have different friends.

In early August 2007, U.S. Under Secretary of State Nicholas Burns, who has shepherded the deal in the U.S., told an interviewer that the 123 Agreement was a technical one and that it doesnt speak to political issues. Nevertheless, Burns continued, we have been very actively involved in counselling the Indian government that they should remain with the rest of the international community in arguing to the Iranians that they should not become a nuclear weapons power, and that India will not conclude any long-term oil and gas agreements with Iran. The U.S., Burns hoped, would pressure India to give Iran the right advice.

The U.S.-India nuclear deal is part of a long-standing attempt to revise the relations between the two countries. This dynamic began in the late 1990s when the Bharatiya Janata Party-led government was in power, and it intensified with the Bush administrations attempt to draw India into its missile defence programme. The main adversary in U.S. documents in those days was China, but since 9/11 the crosshairs have been trained firmly on Iran. During Rices visit to India in 2005, the U.S. government offered India nuclear power in exchange for the India-Pakistan-Iran pipeline, and nuclear weapons forgiveness in exchange for Indias support in the isolation of Iran.

When the Hyde Act draft was before the U.S. House International Relations Committee, Congressman Tom Lantos (Democrat) fulminated against Iran. I want to be damn sure that India is mindful of U.S. policies in critical areas such as U.S. policy towards Iran. India cannot pursue a policy vis-a-vis Iran which takes no account of U.S. foreign policy objectives.

During the debate over the Hyde Act in Congress, some Democrats pushed to strengthen the anti-Iran language in the Bill. Senator Barbara Boxer of California, for instance, moved an amendment in the Senate that demanded that the Indian government suspend its military relations with Iran (formalised in 2003). The President, she said on the floor of the Senate, should have made severing military ties with Iran a precondition to civil nuclear cooperation. Boxers amendment failed (59 to 38 votes), and many called it a killer amendment. Senator Lugar, the senior Republican who moved the Bill, said of it: This is a killer condition that, if adopted by Congress, would require renegotiation of the agreement.

Instead, Congress went in for slightly softer language, asking the U.S. President to report to Congress annually to show that India is giving the U.S. full and active participation to dissuade, isolate, and, if necessary, sanction and contain Iran. As the Bill proceeded through Congress, the Bush administration downplayed the technical aspects and highlighted the political ones. In June 2006, Vice-President Dick Cheney called the Bill one of the most important strategic foreign policy initiatives of our government.

Henry Sokolski, who runs the Non-proliferation Policy Education Center in Washington, D.C., told me that the Iran issue is growing in importance. The Democrats, in general, are averse to a war with Iran and the Republicans, in general, do not want the Bush administration to negotiate a settlement with Teheran that replicates its deal with Pyongyang. The reason the Senate pushed back the Boxer Amendment, he said, was pragmatic since people argued the Hyde Act already had language and there was no need to be so truculent before seeing how India might act once the Hyde Act itself with its Iran language was passed. Indias votes against Iran at the IAEA meetings (September 2005 and February 2006) sent a message to Washington that was well received.

The U.S. Congress and the U.S. administration are eager to sanction anyone who deals with Iran, including foreign companies. This aspect of the U.S.-India relationship has not been addressed at all. Sokolski wonders what will happen to the Indian oil firms who recently confirmed a natural gas find in Iran, ironically only 90 kilometres from the nuclear reactor town of Busheir.