[Congressional Record Volume 154, Number 156 (Sunday, September 28, 2008)]
[Extensions of Remarks]
[Pages E2130-E2133]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 UNITED STATES-INDIA NUCLEAR COOPERATION APPROVAL AND NONPROLIFERATION 
                            ENHANCEMENT ACT

                                 ______
                                 

                               speech of

                         HON. EDWARD J. MARKEY

                            of massachusetts

                    in the house of representatives

                       Friday, September 26, 2008

  Mr. MARKEY. Mr. Speaker, I rise in strong opposition to this bill 
which will do unacceptable damage to the international nuclear 
nonproliferation regime.
  I have worked for over three years in opposition to the U.S.-India 
nuclear cooperation agreement because of its disastrous implications 
for nonproliferation. I've been called the ``Arch-Critic'' of the deal; 
but really I see myself as the ``Arch-Defender'' of nuclear 
nonproliferation. Halting the spread of nuclear weapons is not 
something over which the United States can afford to compromise; this 
issue is central to both international stability and our own security 
here at home. I'm not ``attacking'' India, I am defending the Nuclear 
Non-Proliferation Treaty.
  My goal has been to get meaningful nonproliferation conditions 
included in the agreement at all levels, including at the International 
Atomic Energy Agency (IAEA) and the Nuclear Suppliers' Group (NSG). But 
the Bush administration fought this at every turn.
  The legislation I introduced in 2005, H. Con. Res. 318 outlined the 
serious nonproliferation problems of the proposed India nuclear 
cooperation agreement.
  I testified before the House International Relations Committee on May 
11, 2006 and explained the incredible dangers of the President's 
proposal. I told them that the deal was ``ill-conceived, that it 
undermines U.S. national security interests, and that it sets a 
dangerous precedent that will be exploited by our adversaries and 
rivals.'' I continue to believe that this is the case.
  In response to the issues I and others raised regarding the threat to 
Congressional prerogatives from the administration's draft bill, the 
bill that was actually introduced removed many of the worst ``blank 
check'' provisions of the Administration bill. For instance, the 
administration bill would not have allowed the Congress to even see 
India's IAEA Safeguards Agreement or the Nuclear Suppliers' Group rule 
change before we voted on whether or not to give final approval.
  The Motion to Recommit which I offered during floor debate on July 
26, 2006 focused on India's dangerous relationship with Iran. My motion 
would have required India to help us halt Iran's nuclear program. It 
received 192 votes--the strongest vote that opponents of the deal were 
able to muster. Sadly, however, it was not included in the final bill.
  But after the Congress passed the Henry J. Hyde Act of 2006, to allow 
in principle nuclear trade with India, the Bush Administration ignored 
many of the most important nonproliferation-related conditions and 
requirements which were contained in that legislation. President Bush 
has negotiated a deal with India which is universally recognized by 
nonproliferation experts as ripping an enormous hole in the 
nonproliferation regime by granting unprecedented concessions to India, 
a country that has never signed the Nuclear Nonproliferation Treaty.
  I would like to take this opportunity to explain for the Record, the 
problems inherent with this bill, and more generally with President 
Bush's now three-year campaign to carve out a massive loophole to the 
nonproliferation rules on behalf of India.


             Administration Arguments Fail the Reality Test

  In selling its proposal for the nuclear cooperation agreement with 
India, the Bush Administration relied on arguments which simply fail 
the realty test. Among the most glaringly false arguments on which the 
administration continues to rely to this day are that the nuclear deal 
will unlock India for American commerce, and that India will be a 
natural strategic partner with the United States,
     The U.S.-India trade relationship
  The Bush Administration has argued that the nuclear cooperation 
agreement will exponentially boost commerce with India. They also 
argued repeatedly that if the nuclear deal were not immediately 
approved by the Congress, the U.S. would lose the benefit of this 
trade.
  But in reality, we already have strong and growing trade ties with 
India, and there is no reason to believe that this will be 
substantially altered by the nuclear cooperation agreement. 
Furthermore, I believe that the Bush Administration has sought to use 
this false economic argument to rush Congressional approval.
  The truth is that since 2000, Indian exports to the United States 
have doubled, and U.S. exports to India have almost tripled. In the 
last 30 years, total bilateral trade has grown almost 8-fold, an 
enormous increase. In 2006, our total bilateral trade topped $31.9 
billion, growing at a whopping 18.9% over the previous year. Even 
during the worst moments of the U.S.-India relationship, for instance 
after the 1974 and 1998 Indian nuclear tests, trade continued to grow 
at rapid rates.
  The bottom line is that trade between the United States and India 
will continue to grow, regardless of the ultimate outcome of the 
nuclear cooperation agreement.

[[Page E2131]]

     The U.S.-India strategic relationship
  The Bush administration has repeatedly called the U.S.-Indian 
relationship a ``Strategic Partnership.'' I am a strong supporter of 
India, and I believe that the United States and India must, and will, 
continue to have a relationship marked by mutual cooperation and shared 
values. But I do not believe, as the Bush Administration has 
essentially argued, that India will become a subservient partner to the 
United States.
  The reality is that India has always followed a fiercely independent 
foreign policy, and will certainly continue to do so. In fact, Indian 
Prime Minister Manmohan Singh told his Parliament in August of 2006 
that, ``Our sole guiding principle in regard to our foreign policy, 
whether it is on Iran or any other country, will be dictated entirely 
by our national interest.''
  The first major test of the U.S.-India strategic partnership is the 
question of how to deal with Iran's nuclear program. If lndia really 
were a steady strategic partner to the United States, New Delhi would 
be actively supporting the U.S. in halting the Iranian nuclear program. 
But instead of assisting the U.S. with Iran, India's longstanding 
strategic relationship with Iran has only grown stronger.
  Let me list some of India's actions vis-a-vis Iran which have led me 
to conclude that India is not fully and actively supporting United 
States' efforts to sanction and isolate Iran for its ongoing nuclear 
program: India has repeatedly defended Iran's nuclear program; India 
has developed intelligence outposts in Iran near the Pakistani border; 
India and Iran have held two joint naval exercises, in March 2003 and 
March 2006; The 2003 Iranian-Indian New Delhi Declaration explicitly 
raised concerns about U.S. unilateralism in Iraq; Indian scientists 
have been sanctioned by the U.S. for WMD-related transfers to Iran, 
most recently in July 2006; India is pursuing an $8 billion gas 
pipeline from Iran. India has committed to help Iran build a Liquefied 
Natural Gas terminal; the two countries established the Indian-Iranian 
Joint Working Group on Counter Terrorism in 2003; and India is 
developing a port in south-east Iran which analysts believe will be a 
naval base.
  The other major test of the U.S.-India strategic partnership is how 
to address the rise of China. Some supporters of the nuclear deal will 
admit, in their more candid moments, that the real driver behind this 
enormous change is a desire on the part of the Bush Administration that 
India become the U.S. ``hedge'' to contain China's rise in Asia.
  But India has no desire for conflict of any kind with China, and 
India will not act as an American proxy. To put it simply, it is not in 
India's interest to risk poor relations with China. China is India's 
second largest trading partner. India and China signed an energy 
agreement to prevent them from bidding for the same resources and 
driving up prices, in January 2006. Total bilateral India-China trade 
has grown at over 30% every year since 1999, even faster than India-
U.S. trade has grown.
  China is simply too valuable as a partner, and too potentially 
threatening as an enemy, for India to seek anything but positive 
relations. And all the armchair strategists who have been trying to 
sell the idea of India as an American proxy against China are 
absolutely foolish. It's not going to happen.
  I am not arguing that India cannot or should not have an independent 
foreign policy. I'm arguing it inevitably will chart its own course, as 
any powerful nation would be expected to do. My colleagues should be 
realistic about what we can expect from India in terms of support for 
U.S. foreign policy priorities. The Bush Administration seems to think 
that by granting India international nuclear trade we are locking them 
into a permanent foreign policy alliance with the U.S. That is 
absolutely naive, and I believe that the Bush Administration's 
strategic calculation that they are getting a permanent ally in 
exchange for a wholesale change of international nonproliferation rules 
is simply wrong.


         U.S. Violation of the Nuclear Non-Proliferation Treaty

  Article I of the Nuclear Non-Proliferation Treaty, of which the 
United States is a signatory, states that, ``Each nuclear-weapon State 
Party to the Treaty undertakes not to transfer to any recipient 
whatsoever nuclear weapons or other nuclear weapons or other nuclear 
explosive devices or control over such weapons or explosive devices 
directly, or indirectly; and not in any way to assist, encourage, or 
induce any non-nuclear weapon State to manufacture or otherwise acquire 
nuclear weapons or other nuclear explosive devices, or control over 
such weapons or explosive devices.'' However, the U.S.-India nuclear 
agreement could put the United States in violation of this central 
obligation, since India's nuclear weapons program is likely to both 
indirectly and directly benefit from the terms of civilian nuclear 
trade, and since the United States could therefore be said to be 
``encouraging'' India's manufacture of nuclear weapons.
  The non-partisan Congressional Research Service analyzed at my 
request the question of whether the U.S.-India nuclear agreement could 
violate the United States' obligations under the NPT, and identified 
three ways in which this could occur. First, it analyzed the 
``separation plan'' under which India's civilian and military nuclear 
facilities will be disentangled. Second, it investigated whether U.S. 
de-facto recognition of lndia as a nuclear power could encourage India 
to continue its production of weapons. And third, it examines the most 
significant issue of U.S. assistance to India's weapons program: how 
imported nuclear fuel would free up India's domestic uranium for use in 
its weapons program.
  Without a credible separation plan, the United States could wind up 
transferring technology directly into India's weapons program. The CRS 
analysis states:

       It should be noted that while IAEA safeguards ensure that 
     nuclear material is not diverted, there are no procedures or 
     measures in place to ensure that information, technology and 
     know-how are not transferred from the civil sector to the 
     military sector. This could become a key loophole, 
     particularly because the separation plan places 8 indigenous 
     power reactors under safeguards, while leaving at least 8 
     indigenous power reactors outside of safeguards. Without 
     additional measures to prevent the transfer of personnel 
     or knowledge from the safeguarded program to the 
     unsafeguarded program, there would be little assurallce 
     that assistance to the safeguarded program could not 
     migrate to the military program.

  By changing U.S. law to allow for nuclear trade with India, the 
United States will grant international legitimacy to India's nuclear 
arsenal. The CRS analysis states:

       The United States is not granting de jure recognition to 
     India as a nuclear weapon state, because doing so would 
     require amendment of the NPT, a prospect that is 
     unattainable, according to most experts. Nonetheless, a 
     successful U.S. effort to gain an exemption in U.S. nuclear 
     cooperation law would place India in the company of only four 
     other nations--the United Kingdom, France, China, and 
     Russia--all de jure nuclear weapon states. While this may not 
     constitute formal recognition of India as a nuclear weapon 
     state, many observers believe that it legitimizes India's 
     nuclear weapons program, thus providing de facto recognition.

  Critics of the President Bush's plan for the U.S.-India nuclear 
agreement long argued that allowing India to import uranium for its 
civilian reactors would free up its domestic fuel sources to 
concentrate exclusively on weapons production, giving India a vast new 
capacity for the manufacture of fissile material for weapons. The CRS 
analysis agreed with this argument, calling this indirect benefit to 
India's weapons program ``a clear consequence of such cooperation.'' 
The analysis continues:

       Secretary Rice seemed to be suggesting that having more 
     uranium would not encourage or assist India's nuclear weapons 
     program because it already had the fissile material it 
     needed. If, as Secretary Rice suggests, the military 
     requirements are dwarfed by civilian requirements, then 
     finding international sources for civilian requirements could 
     result in a windfall for the weapons program.

  It is my strong belief that the NPT is the single most important 
international security agreement in existence. Furthermore the United 
States has a unique responsibility as the sole remaining superpower, as 
well as the driving force behind the drafting of the NPT in the middle 
of the last century, to exert constant vigilance on behalf of this 
extraordinarily significant treaty. If the United States does not 
strictly adhere to its NPT commitments then we are likely to see a 
dramatic and dangerous deterioration in the strength and stability 
ofthe Treaty.


     Inconsistencies between the Hyde Act and the ``123'' Agreement

  The Hyde Act of 2006 set numerous requirements for the negotiation of 
the technical bilateral agreement for nuclear cooperation, known as the 
``123 Agreement'' in reference to Section 123 of the Atomic Energy Act 
of 1954. However, the Bush Administration did not meet these 
requirements, and the 123 Agreement is therefore inconsistent with the 
law.
  The most important inconsistencies between the Hyde Act and the 123 
Agreement are: nuclear testing and the termination of U.S. nuclear 
supply; assurances of nuclear supply to India in the case of supply 
``disruption;'' and, the reprocessing of U.S.-origin nuclear material.
     Nuclear Testing and the Termination of U.S. Nuclear Supply
  The Atomic Energy Act requires, and the Hyde Act reinforces, that 
nuclear trade with any nation will terminate if that nation conducts a 
nuclear test. In addition, U.S. law provides that the United States may 
demand the return of all transferred nuclear materials and technology 
in case of a test.
  Almost all other 123 Agreements state these requirements and rights 
explicitly. But the U.S.-India 123 Agreement doesn't. The India 123 
Agreement provides no detail at all on the kinds of actions that will 
result in termination. Given the difficult disagreements in the past

[[Page E2132]]

with India on nuclear rights and responsibilities, this is not wise. In 
addition, the India 123 Agreement does not state that the United States 
has the right to demand the return of all transferred nuclear materials 
and technology if India conducts a test.
  Because the 123 Agreement lacks these specific statements of the 
consequences of an Indian nuclear test, many in India argue that they 
not only have an unfettered right to test their nuclear weapons, but 
that no consequences will follow if they do. This is not what Congress 
intended with the Hyde Act, which specifically requires that 
cooperation end if India tests a nuclear bomb.
     Assurances of Nuclear Supply to India in the Case of Supply 
         ``Disruption''
  The 123 Agreement contains two unprecedented clauses with respect to 
assuring India a supply of nuclear fuel under all scenarios, even if 
they test a bomb.
  First, the 123 Agreement commits the United States to ``support an 
Indian effort to develop a strategic reserve of nuclear fuel to guard 
against any disruption of supply over the lifetime of the reactor.'' 
This means that the United States will assist India in stockpiling 
uranium from international suppliers. If supply was terminated for any 
reason, even if India failed to uphold its nonproliferation 
commitments, such as by testing a nuclear bomb, India could use this 
stockpile of fuel as a cushion against another supply cutoff. This 
clause flies in the face of the Hyde Act, which states that any fuel 
reserve should not exceed normal reactor operating requirements.
  Second, if India should ever have a fuel supply disruption, the U.S. 
is to convene ``a group of friendly supplier countries . . . to pursue 
such measures as would restore fuel supply to India.'' Again, this 
would take place in the event of any disruption of supply, including 
due to India exploding a nuclear bomb.
  This renders toothless the requirement in the Atomic Energy Act to 
stop nuclear exports to a country that tests a nuclear weapon. Will 
India care that U.S. cooperation is cut off if the U.S. itself is 
turning around and asking other countries to step in and provide the 
nuclear fuel to India? Would you think twice about illegally parking if 
you know your ticket will be paid for?
  The Hyde Act specifically states that the United States is to seek to 
prevent other countries from providing India with nuclear material or 
technology if our own cooperation is cut off. The 123 Agreement should 
say the same thing, but it doesn't.
     Reprocessing U.S.-origin nuclear material
  As a matter of policy, the United States doesn't transfer enrichment, 
reprocessing, or heavy water production equipment to any state because 
of the dangerous utility of those technologies for nuclear weapons 
programs. In fact, in February 2004, President Bush said that 
``enrichment and reprocessing are not necessary for nations seeking to 
harness nuclear energy for peaceful purposes.'' And he had it right!
  And reinforcing the point, the Hyde Act states that, ``Given the 
special sensitivity of equipment and technologies related to the 
enrichment of uranium, the reprocessing of spent nuclear fuel, and the 
production of heavy water,'' the United States will work to further 
restrict the transfers of such technologies to India.
  Yet, the U.S. has given India the right to reprocess our nuclear 
material, and promised cooperation in reprocessing technologies! How 
will the U.S. be able to stop other countries from transferring 
reprocessing technologies and other sensitive technologies if we are 
making such transfers ourselves?
  The fact of the matter is that President Bush negotiated an agreement 
with India that does not meet the requirements of U.S. law, on testing, 
on assurances of supply, and on reprocessing.


   Problems relating to International Atomic Energy Agency Safeguards

  The Hyde Act of 2006 set numerous requirements relating to India's 
negotiations and declarations to the International Atomic Energy Agency 
(IAEA). While a number of these key requirements have not met, 
President Bush made a formal declaration that all of the Hyde Act 
requirements were fulfilled.
     Separation plan
  Section 104(b)(1) of the Hyde Act requires the President to determine 
that India must provide to the United States and the IAEA ``a credible 
plan to separate civil and military nuclear facilities, materials, and 
programs.'' However, the separation plan that India has provided is not 
credible from a nonproliferation perspective, since it will not prevent 
all materials from moving between the civilian and military spheres.
  Under the separation plan, India will be allowed to use domestically 
produced heavy water to moderate its safeguarded civilian reactors. 
However, the domestically produced heavy water itself will not be 
safeguarded, and safeguards will be removed from old heavy water as it 
is removed from the reactor in exchange for new heavy water. This 
creates a serious problem within the separation plan, as the old heavy 
water will contain tritium, a nuclear byproduct material which is used 
to boost the yield of nuclear weapons.
  India will be able to use tritium generated in its ``safeguarded'' 
reactors to boost the yield of its nuclear weapons, making the 
civilian-military separation plan utterly meaningless from a 
nonproliferation perspective. Yet, on September 10, 2008, President 
Bush made a formal declaration that ``India has provided the United 
States and the IAEA with a credible plan to separate civil and military 
nuclear facilities, materials, and programs.''
     India's declaration to the International Atomic Energy Agency
  Section 104(b)(1) of the Hyde Act requires the President to determine 
that:
  India has ``filed a declaration regarding its civil facilities and 
materials with the IAEA.''
  However, India has not filed such a declaration with the lAEA, and 
has stated that it will not do so until after the 123 Agreement has 
been approved.
  Yet, on September 10, 2008, President Bush made a formal declaration 
that, India . . . has ``filed a declaration regarding its civil 
facilities and materials with the IAEA.''
     India's progress towards concluding an Additional Protocol
  Section 104(b)(3) of the Hyde Act requires the President to determine 
that:

       India and the IAEA are making substantial progress toward 
     concluding an Additional Protocol consistent with IAEA 
     principles, practices, and policies that would apply to 
     India's civil nuclear program.

  The ``substantial progress'' required by the Hyde Act has simply not 
occurred. India and the lAEA have met just one time to discuss 
negotiations of an Additional Protocol, and one concept paper has been 
exchanged. No one knows what the final Additional Protocol will look 
like, if indeed one is ever successfully negotiated.
  Yet, September 10, 2008, President Bush made a formal declaration 
that, ``India and the IAEA are making substantial progress toward 
concluding an Additional Protocol consistent with IAEA principles, 
practices, and policies that would apply to India's civil nuclear 
program.''


        Problems relating to the Nuclear Suppliers' Group Waiver

  The Hyde Act of 2006 set numerous statements of United States policy 
relating to the negotiation of a waiver from the Nuclear Suppliers' 
Group (NSG) guidelines for international nuclear trade with India. 
However, the Bush Administration ignored many of these statements of 
policy, and in at least one instance aggressively pursued a policy 
which was directly contradicted by the Hyde Act.
     Termination of NSG supply in response to violations
  Section 103(a)(4) of the Hyde Act states that it is the policy of the 
United States to:

       Strengthen the NSG guidelines and decisions concerning 
     consultation by members regarding violations of supplier and 
     recipient understandings by instituting the practice of a 
     timely and coordinated response by NSG members to all such 
     violations, including termination of nuclear transfers to an 
     involved recipient, that discourages individual NSG members 
     from continuing cooperation with such recipient until such 
     time as a consensus regarding a coordinated response has been 
     achieved.

  However, the United States did not seek to establish strengthen the 
NSG guidelines to require a termination of NSG supply to a recipient 
states in the event of a violation of supplier and recipient 
understandings. In fact, many NSG member states sought to strengthen 
the NSG guidelines in this manner but could not because opposition by 
the Bush Administration. In this case the Bush Administration actively 
worked to thwart the policy of the United States as set by Congress in 
the Hyde Act.
     Enrichment and reprocessing restriction
  Section 103(a)(5) of the Hyde Act states that it is the policy of the 
United States to:

       Given the special sensitivity of equipment and technologies 
     related to the enrichment of uranium, the reprocessing of 
     spent nuclear fuel, and the production of heavy water, work 
     with members of the NSG, individually and collectively, to 
     further restrict the transfers of such equipment and 
     technologies, including to India.

  However, the United States did not seek to strengthen NSG guidelines 
to restrict the transfers of enrichment and reprocessing technologies, 
despite having sought such a restriction for four years. In 2004, 
President Bush declared in a major speech on nonproliferation that 
achieving a historic international restriction on transfers of 
enrichment and reprocessing was one of his administration's highest 
priorities. For the next four years, the Bush Administration sought to 
achieve such a restriction at the NSG, yet abandoned this issue during 
the negotiations regarding India.

[[Page E2133]]

     Universalizing U.S. termination triggers
  Section 103(a)(6) of the Hyde Act states that it is the policy of the 
United States to:

       Seek to prevent the transfer to a country of nuclear 
     equipment, materials, or technology from other participating 
     governments in the NSG or from any other source if nuclear 
     transfers to that country are suspended or terminated 
     pursuant to this title, the Atomic Energy Act of 1954 (42 
     U.S.C. 2011 et seq.), or any other United States law.

  However, the United States did not seek to amend NSG guidelines to 
ensure that all international nuclear supply to India would be 
terminated if U.S. law required U.S. nuclear trade to be terminated. 
Such a rule would not only have significantly strengthened 
international nonproliferation policy, but it would have protected 
American firms from the possibility of being the only firms in the 
world barred from trade with India.
  Madam Speaker, this bill, and the nuclear cooperation agreement with 
India which it approves, will do great damage to the international 
nuclear nonproliferation regime. Can we afford to undermine the 
nonproliferation rules at the very moment when Iran is speeding toward 
a viable nuclear capability, when North Korea is redoubling its 
intransigence and throwing out IAEA observers, and when Venezuela is 
requesting nuclear cooperation from Russia? No, we cannot. I urge my 
colleagues to think carefully about the implications of this bill for 
international stability and U.S. security, and vote against H.R. 7081.

                          ____________________