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27–347 PDF

" ! COMMITTEE PRINT 109TH CONGRESS

2d Session

S. PRT.

2006

109–61

U.S.-INDIA ATOMIC ENERGY

COOPERATION: STRATEGIC AND

NONPROLIFERATION IMPLICATIONS

A COMPILATION OF

STATEMENTS BY WITNESSES

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

APRIL 26, 2006

Printed for the use of the Committee on Foreign Relations

Available via World Wide Web: http://www.access.gpo.gov/congress/senate

COMMITTEE ON FOREIGN RELATIONS

RICHARD G. LUGAR, Indiana, Chairman

CHUCK HAGEL, Nebraska

LINCOLN CHAFEE, Rhode Island

GEORGE ALLEN, Virginia

NORM COLEMAN, Minnesota

GEORGE V. VOINOVICH, Ohio

LAMAR ALEXANDER, Tennessee

JOHN E. SUNUNU, New Hampshire

LISA MURKOWSKI, Alaska

MEL MARTINEZ, Florida

JOSEPH R. BIDEN, Jr., Delaware

PAUL S. SARBANES, Maryland

CHRISTOPHER J. DODD, Connecticut

JOHN F. KERRY, Massachusetts

RUSSELL D. FEINGOLD, Wisconsin

BARBARA BOXER, California

BILL NELSON, Florida

BARACK OBAMA, Illinois

KENNETH A. MYERS, JR., Staff Director

ANTONY J. BLINKEN, Democratic Staff Director

(II)

CONTENTS

Page

Letter of Introduction .............................................................................................. v

Lugar, Hon. Richard G., U.S. Senator from Indiana, Chairman, Senate Committee on Foreign Relations ................................................................................ 1

Biden, Hon. Joseph R., Jr., U.S. Senator from Delaware, Ranking Member,

Senate Committee on Foreign Relations ............................................................ 3

Carter, Hon. Ashton B., Co-Director, Preventive Defense Project, John F.

Kennedy School of Government, Harvard University ....................................... 7

Perry, Hon. William J., Senior Fellow, Hoover Institution, Stanford University, Stanford, California ..................................................................................... 17

Gallucci, Hon. Robert L., Dean, Edmund A. Walsh School of Foreign Service,

Georgetown University, Washington, DC .......................................................... 19

Tellis, Dr. Ashley J., Senior Associate, Carnegie Endowment for International

Peace, Washington, DC ....................................................................................... 23

Lehman, Hon. Ronald F., II, Director, Center for Global Security Research,

Lawrence Livermore National Laboratory, Livermore, CA .............................. 31

Einhorn, Hon. Robert J., Senior Adviser, International Security Program,

Center for Strategic & International Studies, Washington, DC ...................... 35

Milhollin, Dr. Gary, Director, Wisconsin Project on Nuclear Arms Control,

Washington, DC ................................................................................................... 45

Cohen, Dr. Stephen P., Senior Fellow, The Brookings Institution, Washington,

DC .......................................................................................................................... 53

Material Relating to the Committee’s November 2, 2005 Hearing, ‘‘U.S.-

Indian Nuclear Energy Cooperation: Security and Nonproliferation Implications’’

Responses to Senator Lugar’s Questions to the Hon. R. Nicholas Burns,

Under Secretary for Political Affairs, and the Hon. Robert G. Joseph, Under

Secretary for Arms Control and International Security, Department of

State, Washington, DC

Responses of Under Secretaries Burns and Joseph ....................................... 57

Responses of Under Secretary Burns ............................................................. 66

Responses of Under Secretary Joseph ............................................................ 68

(III)

LETTER OF INTRODUCTION

May 8, 2006.

Dear Colleagues:

DEAR COLLEAGUE: On April 26, the Committee on Foreign Relations held a hearing titled ‘‘U.S.-Indian Nuclear Energy Cooperation: Strategic and Nonproliferation Implications.’’ Given the ongoing committee consideration of this U.S.-Indian Civilian Nuclear

Agreement, we wish to make the testimony of all our witnesses

available to the entire Senate. Additionally, the answers to initial

questions for the record that were posed some months ago are included.

On our first panel, which focused on the strategic dynamics of

the U.S.-India nuclear agreement, the witnesses included: former

Secretary of Defense William J. Perry; former Assistant Secretary

of Defense Ashton Carter; Robert Gallucci, Dean of the Edmund A.

Walsh School of Foreign Service, Georgetown University; and Dr.

Ashley Tellis from the Carnegie Endowment for International

Peace. Members of the second panel, which considered the issue of

the nonproliferation implications of nuclear cooperation between

the United States and India, included: Dr. Ronald Lehman, Director of the Center for Global Security Research at Lawrence Livermore National Laboratory and formerly the head of the U.S. Arms

Control and Disarmament Agency; Mr. Robert Einhorn, Senior Advisor at the Center for Strategic and International Studies and formerly Assistant Secretary of State for Nonproliferation; Dr. Gary

Milhollin, Director of the Wisconsin Project on Nuclear Arms Control; and Dr. Stephen Cohen, Senior Fellow at the Brookings Institution.

We believe that their testimony can be helpful in preparing

members for subsequent Senate consideration of the U.S.-Indian

Civilian Nuclear Agreement.

Sincerely,

RICHARD G. LUGAR,

Chairman.

JOSEPH R. BIDEN, JR.,

Ranking Member.

(V)

(1)

OPENING STATEMENT OF

HON. RICHARD G. LUGAR

U.S. SENATOR FROM INDIANA,

CHAIRMAN, SENATE COMMITTEE ON FOREIGN RELATIONS

APRIL 26, 2006

The Foreign Relations Committee meets today to continue its examination of the U.S.-India Civilian Nuclear Agreement. On April

5, the committee met in open session with Secretary of State

Condoleezza Rice. On March 29, we examined the agreement in

closed session with Under Secretaries Nick Burns and Bob Joseph.

Today, we will have the opportunity to hear the views of eight esteemed experts from outside the U.S. government.

Some months ago, I submitted 82 questions related to the agreement to the State Department as an initial step toward establishing a dialogue that would help Congress make an informed decision. The State Department provided answers to those 82 questions. After the hearing with Secretary Rice, I submitted about 90

additional questions for the record. The Ranking Member and several other members of the committee also submitted questions after

the hearing. We appreciate the administration’s attention to these

questions as the committee carefully works through the intricacies

of the nuclear agreement with India.

The committee is cognizant of how valuable a closer relationship

with India could be for the United States. At our last hearing,

many members commented on the importance of improving ties

with India. Our nations share common democratic values, and the

potential of our economic engagement is limitless.

Energy cooperation between the United States and India is particularly important. India’s energy needs are expected to double by

2025. The United States has an interest in expanding energy cooperation with India to develop new technologies, cushion supply

disruptions, cut green house gas emissions, and prepare for declining global fossil fuel reserves. The United States’ own energy problems will be exacerbated if we do not forge energy partnerships

with India, China, and other nations experiencing rapid economic

growth. That is why I have introduced S. 2435, the Energy Diplomacy and Security Act, which would encourage international energy dialogues and advance a broad range of energy diplomacy

goals.

But even as we pursue closer ties with India, we must examine

the implications and risks of initiating a cooperative nuclear relationship. India has not signed the Nuclear Non-proliferation TreaVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 27347.TXT SFRELA2 PsN: SFRELA2
2

ty; it has built and tested nuclear weapons; and it has declared its

intention to continue its nuclear weapons programs and the production of fissile material. If Congress approves this agreement, we

will be establishing a new course after decades of declining any cooperation with India’s nuclear program. Consequently, our committee has spent much time probing the details of the U.S.-India

Civilian Nuclear Agreement.

Among many questions, we are attempting to evaluate the potential benefits of drawing India into a deeper relationship with the

International Atomic Energy Agency and placing more Indian reactors under safeguards. The committee has also expressed great interest in the timing and sequence of how the India Nuclear Agreement would be implemented. Since the committee last met with

Secretary Rice, India has initiated discussions with the International Atomic Energy Agency on a safeguards agreement and an

additional protocol. This is a welcome development, but I urge

India andthe IAEA to work hard to conclude an effective agreement

in a timely fashion. All parties involved in the negotiations, including the Bush administration, should facilitate the maximum

amount of transparency possible, so that Congress is better

equipped to make informed judgments.

Today we will hear from two panels of highly knowledgeable experts. Our first panel will focus on the strategic dynamics of the

agreement, and the second panel will take up the question of the

non-proliferation implications of nuclear cooperation between the

United States and India.

On our first panel, we welcome the distinguished former Secretary of Defense William Perry. Presently, he is Co-Director of the

Preventive Defense Project. He is joined by Dr. Ashton Carter, also

a Co-Director of the Preventive Defense Project and a former Assistant Secretary of Defense for International Security Policy. Joining them will be Dr. Robert Gallucci, Dean of the Edmund A.

Walsh School of Foreign Service at Georgetown. Dr. Gallucci served

as a chief U.S. negotiator during the 1994 crisis over North Korea’s

nuclear program. Finally, Dr. Ashley Tellis is with us from the

Carnegie Endowment for International Peace. Dr. Tellis played a

leading role in the formulation of the U.S.-India nuclear agreement, serving in key State Department positions.

On our second panel, we welcome Dr. Ronald Lehman, director

of the Center for Global Security Research at Lawrence Livermore

National Laboratory and formerly the head of the U.S. Arms Control and Disarmament Agency; Mr. Robert Einhorn, a Senior Adviser at the Center for Strategic and International Studies and formerly Assistant Secretary of State for Nonproliferation; Dr. Gary

Milhollin, Director of the Wisconsin Project on Nuclear Arms Control; and Dr. Stephen Cohen, a Senior Fellow at the Brookings Institution.

We are pleased to have with us so many good friends of the committee. Most of our witnesses have provided invaluable service to

the Foreign Relations Committee as we have struggled with nonproliferation and other geo-political issues. We thank each of them

for their willingness to again lend us their extraordinary expertise.

(3)

OPENING STATEMENT OF

HON. JOSEPH R. BIDEN, JR.

U.S. SENATOR FROM DELAWARE,

RANKING MEMBER, SENATE COMMITTEE ON FOREIGN RELATIONS

APRIL 26, 2006

Thank you, Mr. Chairman. And thank you for chairing this series

of hearings on the administration’s nuclear deal with India.

The administration did not consult us as it negotiated the July

18 Joint Statement between President Bush and Prime Minister

Singh.

It paid little attention to our concerns as it negotiated with India

regarding India’s plan for separating its civil nuclear facilities from

its military ones.

And it submitted a legislative proposal to us and a decision proposal to the Nuclear Suppliers Group that were so poorly drafted

as to cast doubt on the administration’s seriousness of purpose.

Despite this, I indicated three weeks ago that I will probably

support the agreement at the end of the day. I did so because I

agree that the time has come to develop a new relationship between India and the parties to the Nuclear Non-Proliferation Treaty.

And I did so also because undoing this deal could do more damage—in terms of our relationship with India—than approving it,

with carefully drafted conditions.

This deal brings risks, and I believe the administration and Congress must minimize those risks.

So far, Mr. Chairman, the administration has done a lot more to

lobby us than to work with us.

• It has yet to answer our questions for the record.

• It has yet to share its negotiating record or explain just what

it agreed to when it accepted the idea of ‘‘India-specific safeguards,’’ or ‘‘corrective measures that India may take . . . in the

event of disruption of foreign fuel supplies,’’ or U.S. ‘‘assurances regarding fuel supply,’’ or ‘‘a strategic reserve of nuclear

fuel’’ for India.

• The administration has yet to share with us the full list of India’s civil nuclear facilities—even in classified form.

• And it has reneged on an earlier promise to share drafts of the

peaceful nuclear cooperation agreement that it is negotiating

with India.

4

Mr. Chairman, I still think that a new deal for India makes

sense. But it isn’t a ‘‘slam dunk,’’ as they say, and that is why we

are here today to take testimony from some of our country’s best

thinkers on nuclear policy.

Today’s witnesses all have impressive backgrounds, and I have

relied upon the wisdom of many of them over the years. I look forward to hearing their insights today.

I want to especially thank Bill Perry for coming in from California and for upsetting his schedule in Washington in order to

help us today. Dr. Perry is a man who answers his country’s call,

just as he did regarding North Korea policy after he had retired as

Secretary of Defense.

I would recommend that we also schedule a follow-up hearing

with experts on the Atomic Energy Act, to discuss possible amendments to S. 2429, and experts on India who could tell us what the

consequences of enacting those amendments might be.

Finally, Mr. Chairman, I hope that you will make clear to the administration that the Senate and this committee should not be

taken for granted.

We expect the administration to answer our questions, to provide

us the details on the related agreements that India is negotiating

with the United States and with the IAEA, and to work with us

to make S. 2429 a respectable bill.

Until the administration does that, we simply should not act on

its proposed legislation.

Mr. Chairman, we recently received a letter from Ambassador

John Ritch, a former staff member of this committee, in support of

the India nuclear deal. I ask that his letter and an attached oped from the International Herald Tribune be included in today’s

hearing record.

Thank you.

[The material to which Senator Biden referred follows:]

23 April 2006.

Hon. RICHARD G. LUGAR, Chairman,

Hon. JOSEPH R. BIDEN, JR., Ranking Member,

Committee on Foreign Relations,

U.S. Senate, Washington, DC.

SUBJECT: Submission on U.S.-India Nuclear Cooperation

DEAR SENATORS LUGAR AND BIDEN: For the committee’s consideration and record in connection with the 26 April hearing on proposed U.S.-India nuclear cooperation, I offer the attached summary

of my views, as published recently in the International Herald

Tribune. My perspective derives from:

• 22 years of service on the staff of the Foreign Relations Committee;

• 7 years as U.S. representative to the IAEA and other UN agencies in Vienna; and

5

• 5 years interacting with the Indian nuclear establishment in

my current capcity.

With respect and warm regards,

JOHN B. RITCH, DIRECTOR GENERAL,

World Nuclear Association.

IT MAKES SENSE TO END INDIA’S NUCLEAR ISOLATION

John B. Ritch, International Herald Tribune

THURSDAY, APRIL 6, 2006

LONDON—President George W. Bush has taken a momentous

step in shelving a U.S. policy that for three decades cast India as

a nuclear pariah- state and isolated the world’s largest democracy

from nuclear commerce, even for the peaceful purpose of generating

electricity.

In Washington a fierce debate has erupted over the impact on

the Nuclear Nonproliferation Treaty.

The U.S.-India deal conforms to the treaty by ensuring that nuclear commerce remains in the civil realm. But critics say it jeopardizes the treaty by legitimizing India’s nuclear deterrent. Supporters counter that India’s weapon is a long-standing fact, that

India has used nuclear technology responsibly and that it is time

to close ranks with a democracy.

Before the Bush initiative, two truths coexisted uneasily. First,

the nonproliferation regime is one of history’s great diplomatic

achievements. Since its inception in 1970, the treaty has kept the

number of nuclear-armed nations under 10.

Episodes of non-compliance have shown the treaty’s value. After

the first Gulf War revealed Iraq’s covert nuclear efforts, the treaty

regime gained strength as the International Atomic Energy Agency

acquired new detection capabilities and broader authority for its inspectors. Treaty inspections ‘‘caught’’ both North Korea and Iran,

and have spurred collective diplomacy against these violations.

A second, less convenient truth is that the treaty was, from the

outset, unfair to India as a great nation. The treaty drew a line in

time, recognizing only the UN Security Council’s five permanent

members as ‘‘nuclear-weapon states.’’ Thus, when India became the

world’s sixth nuclear power in 1974, it faced Hobson’s choice: Disarm or remain outside the treaty.

For reasons of principle and strategic interest India remained

outside, declaring that it would eliminate its small deterrent as

soon as the five favored ‘‘weapon states’’ fulfilled a treaty pledge to

dismantle their own much larger nuclear arsenals.

Indians went on, for three decades, to become proud developers

and careful custodians of their own sophisticated nuclear technologies. To supply power for economic growth, India now plans to

build hundreds of reactors by mid-century, even without the new

agreement.

The Bush initiative would accept India’s reality. Critics complain

that the accord leaves India’s military program ‘‘unconstrained.’’

6

Advocates counter that India’s civil power reactors will fall under

inspection safeguards.

This debate is sterile. Inspections on India’s civil facilities cannot

affect its military program. But neither will civil nuclear trade with

India spur an Asian arms race. India’s leaders have no motive to

abandon India’s long-standing policy of maintaining minimal nuclear deterrence vis-a ́-vis Pakistan’s smaller nuclear force and China’s larger one.

Although legal under the nonproliferation treaty, the deal will require change in a U.S. law enacted in 1978 that made treaty membership a condition of nuclear trade. In 1992, the Nuclear Suppliers

Group of nations embraced the same coercive approach. Now these

countries are set to follow the U.S. lead, with only China expressing resistance.

The new policy would revert—in the unique case of India—to the

basic treaty requirement of confining nuclear trade to the civil

realm. It would also welcome India as a partner in world nuclear

trade controls and collaborative projects to develop nuclear technology.

Some say that ending India’s nuclear isolation sends a dangerous

message to potential proliferators. This charge does not withstand

analysis. How will the ambitions of Iran, North Korea, and Pakistan be inflamed by the principle now being affirmed?

The principle is this: In sensitive nuclear technology, we will

trade legally—and with nations that have earned the world’s trust.

As a practical matter, no nation appears likely to ‘‘proliferate’’ because India is allowed civil nuclear commerce.

Thus has the new policy been endorsed by Hans Blix and

Mohamed Elbaradei, the IAEA leaders entrusted over the last

quarter century to oversee the nonproliferation regime.

Nuclear cooperation with India offers some economic opportunity—and potentially enormous environmental value. India has

recognized the urgency of a worldwide clean-energy revolution if

humankind is to avoid unleashing devastating climate change.

The U.S.-India deal promises a partnership between the two

largest democracies to deliver this environmental benefit—within

India and to a wider world—on a scale that can make a difference.

With a strong legal, strategic and environmental rationale, this

is a Bush initiative that has gained a broad coalition of support

abroad.

John B. Ritch, U.S. ambassador to the International Atomic Energy Agency in the Clinton administration, is the director general

of the World Nuclear Association and president of the World Nuclear University.

(7)

1 An edited version of this statement appeared in the July/August issue of Foreign Affairs.

PREPARED STATEMENT OF

THE HONORABLE ASHTON B. CARTER

CO-DIRECTOR, PREVENTIVE DEFENSE PROJECT, JOHN F. KENNEDY

SCHOOL OF GOVERNMENT, HARVARD UNIVERSITY

BEFORE THE

SENATE COMMITTEE ON FOREIGN RELATIONS

WEDNESDAY, APRIL 26, 2006

ASSESSING THE INDIA DEAL 1

During a state visit to Washington in July of 2005, Indian Prime

Minister Manmohan Singh and U.S. President George W. Bush announced a potentially far-reaching ‘‘strategic partnership’’ between

what will probably be the 21st century’s most powerful democracies. To inaugurate what came to be known as the India Deal,

Bush abruptly fulfilled a thirty-year quest by Delhi to be recognized as a sixth ‘‘legitimate’’ nuclear power, alongside the five victors of World War II. In March of 2006, in a reciprocal visit to

India, Bush settled most of the remaining details of the nuclear

part of the India Deal in Delhi’s favor.

Debate in both Washington and Delhi has swirled around the nuclear aspects of the India Deal. This is understandable, since preventing nuclear war and terrorism is the highest American national security priority in this era, as Bush himself has acknowledged. The decade has already witnessed a stunning defeat for the

United States in North Korea’s runaway nuclear program. The

same could be unfolding more slowly in Iran. Meanwhile, an unbowed Osama bin Laden has declared to his followers that obtaining weapons of mass destruction is a ‘‘religious duty.’’

Indeed, if the nuclear aspects of the India Deal are assessed in

isolation, one must conclude that the Deal was a bad one for the

United States. Washington recognized Delhi’s nuclear status in return for little in the way of new steps by India to combat nuclear

proliferation and terrorism that Delhi was not already committed

or inclined to give, and for almost no technical restraints on India’s

growing nuclear arsenal. Through the U.S. concession, the nonproliferation regime also paid a palpable, although probably manageable, price to its integrity and support.

But it would be a mistake to assess the India Deal in a nuclearonly frame. President Bush and his key advisors were clearly looking through a wider lens, and so should the public and the U.S.

8

Congress, which must amend U.S. nonproliferation laws that forbid

the policies Bush agreed to. Viewed through such a wider geopolitical lens, the Deal has the United States giving the Indians

what they have craved for so long—nuclear recognition—in return

for a strategic partnership between Washington and Delhi as the

two democracies face similar potential challenges from China, Pakistan, Iran, and elsewhere in the coming decades. In short, Washington gave on the nuclear front to get something on the non-nuclear front. Powerful arguments can be made that strategic partnership with India will prove to be in the deep and long-term U.S.

security interest. Indo-U.S. partnership seems not only logical but

eminently achievable in India’s democracy: in an influential 2005

Pew Research Center poll of 15 leading nations, India reported the

highest proportion of favorable views of the United States at 71%.

A nuclear-recognition quid for a strategic-partnership quo is therefore a reasonable framework for an India Deal.

However, as a diplomatic transaction the India Deal as negotiated by President Bush is quite uneven. First of all, a U.S.-Indian

strategic partnership would seem to be in Delhi’s interest as well

as America’s. So why pay them for it? Second, the Deal is uneven

in its specifics—what the U.S. gives is spelled out quite clearly, but

what India gives in return is vaguer. Third, the Deal is uneven in

timing—the United States gave its big quid of nuclear recognition

up front, but what it stands to get in return from partnership with

India lies further out in the uncertain future.

Rebalancing the Deal

Despite the Deal’s flaws, Congress should not attempt to renegotiate the Deal to win a more balanced version than the Bush administration obtained. The big U.S. card of nuclear recognition has

already been played and cannot be taken back by Congress at this

point without casting a lasting cloud over the whole idea of IndoU.S. partnership. Haggling over some of the details of the implementation of the nuclear parts of the Deal is unlikely to restore

much of whatever lost reputation for nonproliferation consistency

that the U.S. has already suffered, and would probably be viewed

as grudging and punitive in Delhi. The result would be to undermine the goodwill that was supposedly the whole purpose of giving

nuclear recognition in the first place.

Rather than subtracting from the Indian side of the ledger in an

effort to rebalance the India Deal, Congress should instead emphasize what the U.S. expects on its side of the ledger to give meaning

to the new ‘‘strategic partnership.’’ The United States should expect

India to join it in countering any destabilizing effects China’s future rise might have on Asian security; assisting in any emergency

in Pakistan such as radicalization of its government or loss of control of its nuclear weapons; reversing traditional Indian opposition

to controls on transfer of nuclear technology and especially using

its diplomatic clout against potential proliferators like Iran; growing its military-to-military relationships, including arms cooperation, to match in time those the United States has with its closest

allies; and giving preferential treatment to the U.S. defense and

nuclear industries when the Indian government makes investments

in these sectors.

9

To see how the ledger can be rebalanced over time, one needs

first to consider what India already got from the Deal on the nuclear front, and its repercussions for the nonproliferation regime;

second, to prescribe the broader benefits the United States should

aim to get from strategic partnership from India in coming decades;

and third, to assess the chances that U.S. expectations will actually

be met.

What Delhi Got

India obtained defacto recognition of its nuclear weapons status:

the United States will behave, and urge others to behave, as if

India were a nuclear weapons state under the Nuclear Nonproliferation Treaty (NPT). The U.S. will not deny it most civil nuclear technology or commerce, nor require it to put all of its nuclear

facilities under International Atomic Energy Agency (IAEA) safeguards—only those it declares to be civil. India can now import

uranium, which has been a bottleneck in its nuclear program. It is

worth noting that even if the Bush administration wished to make

India a formal Nuclear Weapons State under the NPT (which it refused to do), it probably could not persuade all the other signatories of the NPT to agree to the change (such amendments require

unanimity).

Besides the new access to technology, nuclear recognition grants

an enormous political benefit to India. With one stroke India joins

the United States, Russia, China, Great Britain, and France as ‘‘legitimate’’ wielders of the power and influence that nuclear weapons

confer. The Deal allows India to transcend the nuclear box that has

for so long defined and constrained its place in the international

order, hopefully jettison at last its outdated Non-Aligned Movement

stances and rhetoric, and occupy a more normal and modern place

in the diplomatic world. Critics of the Deal contend that India’s

past and likely future behavior do not warrant this free pass. Proponents predict that with the nuclear issue (which the Bush administration describes as the ‘‘basic irritant’’ in Indo-U.S. relations)

out of its psychological way, India will pivot from detractor of much

of the international order, including especially the nonproliferation

regime, to responsible stakeholder. Both sides agree that nuclear

recognition is huge.

The Deal has naturally been popular in India. Supporters of Congress Party Prime Minister Singh have emphasized Bush’s nuclear

recognition and downplayed any sense that India has taken on important obligations in return. Criticism from the opposition

Bharatiya Janata Party (BJP) has been narrow and technical and

probably reflects chagrin that a Congress Party government and

not the BJP secured the Deal. The other source of criticism has

been leftists in the Left Front parties. They are wedded to the old

politics of the Non-Aligned Movement which was overtaken by the

end of the Cold War, but they are unlikely to be able to block the

Deal.

Measuring the Impact of Nuclear Recognition for India

Previous U.S. administrations have adopted the stance that India’s nuclear arsenal, first tested in 1974, is illegitimate and should

be eliminated, or at least sharply constrained. They have done so

10

for two reasons: First, India’s nuclear arsenal is watched closely by

arch-rival and nuclear-armed Pakistan and by China, with which

India has fought no fewer than three wars since its independence

from Great Britain. Recognizing the Indian arsenal, the argument

went, might spur its open growth and thus an arms race in South

Asia. Second, Washington wanted to stick strictly to the principles

underlying the NPT: that signatories would get the benefits of

international standing and peaceful nuclear commerce, but those

like India that stood outside the regime would not. Compromising

these principles would, it was feared, give heart to nuclear aspirants that they could ‘‘end run’’ the NPT if only they waited thirty

years like India; it would also dishearten the many countries that

were not about to go nuclear but which loyally supported the NPT

against new proliferators.

But a stance is not a policy. As policy, elimination of India’s arsenal became increasingly unrealistic as Pakistan went nuclear in

the 1980s, and then more so when India tested five bombs underground and openly declared itself a nuclear power in 1998. As the

Bush administration conducted its nuclear negotiations with India

in the fall of 2005 and spring of 2006, it ultimately abandoned efforts by nonproliferation specialists to attach further conditions to

the Deal that would constrain India from increasing its nuclear arsenal further. The U.S. insisted that the Deal is a broad strategic

agreement, not an arms control treaty. For example, some have argued that India should be required to stop making fissile material

for bombs now like the other acknowledged nuclear powers have

done rather than wait for the negotiation of an international Fissile

Material Cutoff Treaty. Others contend that India should have to

place more of its nuclear facilities under IAEA safeguards, to prevent diversion of fissile materials from its nuclear power program

to its nuclear weapons program. Yet others would have India sign

the Comprehensive Test Ban Treaty rather than abide, as it has

since 1998, by a unilateral moratorium on further underground

testing of its nuclear arsenal.

The Indian government, with strong public support, has resisted

all these efforts to constrain its future nuclear arsenal in technical

ways. If the objective of U.S. proponents of these ways of rebalancing the India Deal is to prevent Indian arms racing with Pakistan and China, then that important goal would be better pursued

in non-technical ways. India has stated its intention to pursue a

‘‘minimum deterrent’’ rather than an all-out arms race. The Bush

administration has encouraged this path, and can now make it an

expectation of India as a responsible member of the nuclear club.

But if the objective of seeking additional constraints on India’s nuclear program is to ‘‘take back’’ some of the gain India got from nuclear recognition, then such a grudging move is likely to backfire.

Indians will understandably view such a move as inconsistent with

Bush’s whole intent to use nuclear forgiveness as a way to open the

way for strategic partnership.

The second impact of nuclear recognition for India has to do with

the integrity of the NPT regime and is more serious, though probably manageable. It is inconceivable that North Korea’s Kim Jong

Il pays much heed to the internal consistency of the NPT regime

as he calculates how far he can get with his nuclear breakout.

11

North Korea’s governing ideology is less communism than a fanatical embrace of autarky and ‘‘self-reliance,’’ including open defiance

of international norms like the nonproliferation regime. North Korea’s tolerance for international ostracism is legendary. If Kim’s

nuclear program can be stopped at all at this point, it will be

through a tough and focused diplomacy of sticks and carrots in

which the NPT will play little part. Likewise, after 1995 Saddam

Hussein simply ceased paying attention to the NPT.

Iran’s cat-and-mouse game with the EU-3, the U.S., and the

IAEA over its recently-revealed nuclear program bespeaks at least

a smidgen of sensitivity to international opinion as embodied in the

NPT. Nuclear recognition for India gives Teheran a new talking

point: If India gets a free pass, why not Iran which is also an important nation with an ancient culture? But like North Korea,

Iran’s nuclear program has deeper roots in its sense of security

threat and Persian pride. Against these the NPT will not weigh in

very heavily. Besides, for now Teheran denies it is seeking a nuclear arsenal at all but only nuclear power, so it will be hardpressed to use India as a precedent for its current diplomatic position.

The impact of the Bush-Singh deal on the ‘‘rogues’’ is therefore

minimal. Its main impact will be felt among two other groups of

countries. First, there are the ‘‘in-betweens’’—states that are not

rogues but that flirt with nuclear status. In the recent past the inbetweens have included South Africa, Argentina and Brazil, the

post-Soviet states of Ukraine, Kazakhstan, and Belarus, South

Korea, Taiwan, and (only recently joining this category) Libya.

These in-betweens turned away from nuclear weapons for many

reasons specific to their own individual circumstances, but in each

of these cases the lasting international ostracism threatening them

if they stood outside the NPT regime was an influential factor for

both governments and their people. Nuclear recognition for India

suggests that forgiveness will eventually come to proliferators who

wait, and tomorrow’s in-betweens—Brazil comes to mind—might be

tempted by the Bush-Singh precedent.

The most nonproliferation damage, curiously, might be done

among the stalwarts of the regime: governments that have no nuclear ambitions at all but that faithfully uphold the rules, and the

nuclear powers that already enjoy a privileged place in it. These

groups not only provide political support to discourage in-betweens

and confront rogues, they provide vital and direct technical support

by denying critical exports to those who infringe the NPT’s rules.

The Nuclear Suppliers Group (NSG), in particular, coordinates controls on exports by the nations with advanced nuclear power technology. The NSG was created through U.S. leadership, and it is the

U.S. that has long stood against backsliding by member governments that come under pressure from their nuclear industries to

sell technology abroad more liberally, including especially to India.

Now all of a sudden the United States has decided to change policy, and others too might consider themselves free to pick and

choose where they apply the nonproliferation rules—the Chinese

with Pakistan, the Russians with Iran, and some European vendors everywhere.

12

Damage-limitation from the Bush-Singh deal must therefore center on the in-betweens and stalwarts. A plan for doing so was a logical part of the U.S. diplomatic initiative, but it is clear that the

Bush administration did not have one until after the Deal was concluded, still less did it consult widely before Bush made his dramatic volte-face in July 2005. But most of the nations whose adherence to the NPT regime is critical will either support the Deal or

acquiesce in it. First, most accept the U.S. argument that India’s

nuclear nonproliferation behavior has been good—there have apparently been no Indian A.Q. Khans—and that India’s possession

of nuclear weapons is an established fact and cannot be reversed.

Second, all can see that India is hardly a rogue state, but a stable

democracy likely to play a large and constructive role in the world

of the 21st century. Third, many will regard India’s thirty years in

the ‘‘penalty box,’’ which exacted a heavy price from Delhi in both

prestige and technology, as sufficient to make the point that the regime’s adherents are serious about enforcing its norms. These arguments have won over many in the international nonproliferation

community, notably IAEA Director General and Nobel Laureate

Dr. Mohamed ElBaradei And so while there is some grumbling

within the NPT regime over the Deal, a revolt or collapse is not

likely, and the damage to the regime can be limited.

As critics have exaggerated the nonproliferation costs of the nuclear part of the India Deal, so also its proponents have exaggerated its benefits in terms of energy security and nuclear security.

Bush administration spokesmen have defended the Deal’s nuclear

power provisions as critical to stopping India’s rise from posing an

oil and environmental crisis. But this claim does not survive close

scrutiny. Energy security is terribly important to both India and

the United States. All want India’s huge population to satisfy its

energy needs, which will grow faster than its GDP, increasing as

much as fourfold within 25 years, without contributing further to

dependence on Middle East oil, pollution, and global warming. But

the arithmetic does not support the case that nuclear power will

add up to make the critical difference for India, though it can and

should play a role. For the foreseeable future, electricity generation

in India will be dominated by coal burning whereas nuclear plants

(which today produce only 3% of India’s electricity) will remain a

single-digit contributor even under the most extravagant projections of U.S.-assisted nuclear expansion in India. Indian coal is

plentiful but of poor quality and highly polluting. Burning coal

more cheaply and more cleanly will do more than any conceivable

expansion of nuclear power to aid India’s economy and the environment. India’s share of world oil consumption will grow from 3% to

4% over the next twenty years. But nuclear power does nothing to

address the principal Indian oil consuming sector—cars and

trucks—since these don’t run off the electrical grid and won’t for

a long time. Finally, the type of assistance the United States is

best positioned to provide to India’s nuclear generation capacity

(light water reactors operating on low-enriched uranium fuel) is at

odds with the Indian establishment’s uneconomical vision of a civil

nuclear power program built primarily around breeder reactors.

The administration also claims the Deal will require India to improve its laws and procedures for controlling exports or diversions

13

of sensitive nuclear technology—preventing an Indian A.Q. Khan.

But at the same time, the administration acknowledges India’s apparently excellent record of controlling nuclear exports (though not

always ballistic missile exports). India is already bound by the

U.S.-sponsored U.N. Security Council Resolution 1540 which requires such good conduct, so on paper at least Delhi has sold the

same horse a second time in the Deal. In any event, the United

States is justifying the Deal’s nuclear recognition to other nations

around the world on the grounds that India’s nuclear proliferation

behavior is already exemplary, It will be difficult for the U.S. to

argue this point both ways at the same time.

What Washington Should Get

What is it then that the United States might expect from the

‘‘strategic partnership’’ in return for the nuclear recognition it conferred upon India?

First and foremost, the United States should expect India to

serve as a potential future Asian counterweight to China. Though

no one wants to see China and the United States fall into strategic

competition, neither can anyone rule this out. The evolution of

U.S.-China relations will depend on the attitudes of China’s younger generation and new leaders, on Chinese and U.S. policies, and

on unpredictable events like a crisis over Taiwan. It is reasonable

for the United States to hedge against a downturn in relations with

China by improving its relations with India, and for India to do the

same. But for now both are intent on improving their relations and

trade with China, not antagonizing China. Neither government will

wish to talk publicly, let alone take actions now, pursuant to this

shared—but hypothetical and future—common interest.

Second, the U.S. will want Indian assistance in a range of possible contingencies involving neighboring Pakistan—another common interest that is awkward for either party to the Deal to acknowledge. Pakistan, alongside Russia, belongs at the very center

of urgent concern about nuclear terrorism. Terrorists cannot make

nuclear bombs unless they obtain enriched uranium or plutonium

from governments that have made these materials. The exposure

of the A.Q. Khan network in Pakistan makes clear that Pakistan

has to be regarded as a potential source of such materials—whether by theft, sale, diversion by internal radical elements with access

to bombs or materials, change of government from Mushanaf to a

radical regime, or some sort of internal chaos. Which version of the

A.Q. Khan story is more alarming—that the government and military of Pakistan was unaware of what he was doing, or that they

were aware and permitted it? Either way it illustrates a serious

danger. Were there to be a threat or incident of nuclear terrorism

originating in Pakistan, the United States would want to act in

concert with as many regional players as possible, including India.

The Pakistan contingency is even more difficult than the China

counterweight contingency for the newly-minted strategic partners

in Washington and Delhi to acknowledge. India seems intent on

improving its relations with Pakistan—despite last year’s bombings

in Delhi and their impact on Indian public opinion—and a rapprochement between these long-time antagonists is in the U.S. interest. The United States, for its part, has important interests at

14

stake with the Musharraf government—among them supporting

the search for Osama bin Laden and other terrorists on Pakistani

territory, arresting the growth of radicalism in Pakistan’s population, and stabilizing Afghanistan—and can ill afford the perception of a ‘‘tilt towards India.’’ For now, therefore, the Pakistan contingency, like the China counterweight, remains a hypothetical and

future benefit of the India Deal.

Third, and most urgently, India should be expected to weigh in

against Iran’s nuclear ambitions and to compromise to a considerable extent its friendly relations with Iran in the interests of nonproliferation. Whether Delhi does this will be the clearest test of

whether nuclear recognition ‘‘brings India into the nuclear mainstream,’’ as the Bush administration predicts, or whether India

persists in its pre-Deal (actually, Cold war) positions of rhetorical

support for the spread of nuclear fuel-cycle activities (uranium enrichment and plutonium reprocessing). India’s September 24, 2005

and February 4, 2006 votes with the United States and its European partners in the IAEA Board of Governors, finding Iran in

noncompliance with its NPT obligations and referring the matter

to the United National Security Council were a welcome suggestion

that India will support the international campaign to curb Iran’s

nuclear ambitions. But India’s willingness truly to join the nuclear

club, reversing old non-aligned habits and putting its diplomatic

shoulder to the wheel in the case of Iran and other urgent counterproliferation efforts will be an early and major test of the value of

strategic partnership and its new status.

Fourth, the United States should expect a continued intensification of Indo-U.S. military-to-military contacts, ultimately envisioning joint action in operations outside of a United Nations context. India has historically refused to join the United States military in operations that were not mandated and commanded by the

United Nations. In the future, when the United States needs partners in disaster relief, humanitarian intervention, peacekeeping

missions, or stability operations, the United States can reasonably

expect India to cooperate. Judging from the evolution of U.S. security partnerships in Asia and Europe (especially NATO’s expanded

membership and Partnership for Peace), anticipation of joint action

can lead first to joint military planning, then progressively to joint

exercises, intelligence sharing and forging of a common threat assessment, and finally to joint capabilities. This is the path foreseen

for a deepening U.S.-India strategic partnership in the defense

field. Additionally, there could be occasions when access for and, if

needed, basing of U.S. military forces on Indian territory would be

desirable. At first this might be limited to port access for U.S.

naval vessels transiting the Indian Ocean and overflight rights for

U.S. military aircraft, but in time it could lead to such steps as use

of Indian training facilities for U.S. forces deploying to locations

with similar climate (the way German training areas were used for

forces deploying to the Balkans). Ultimately, India could provide

U.S. forces with ‘‘over-the-horizon’’ basing for Middle East contingencies of the sort preferred by Saudi Arabia and other Gulf states.

Fifth, the United States will expect preferential treatment for

U.S. industry in India’s civil nuclear expansion and modernization

of its military. The authors of the India Deal might have anticiVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00020 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
15

pated preferential treatment for U.S. industry in construction of Indian nuclear reactors and other civil power infrastructure made

possible by the Deal. But there are two barriers to realization of

this U.S. benefit. First, the United States must secure preferential

access for its nuclear industry at the expense of Russian and European suppliers who are also seeking access to the Indian market.

Second, the United States will also need to persuade India to focus

its nuclear power expansion on light water reactors, not the exotic

and uneconomical technologies (e.g., fast breeders) that the Indian

nuclear scientific community favors. This benefit should therefore

not be exaggerated. India is expected to increase the scale and sophistication of its military, in part by purchasing weapons systems

abroad. In view of its concessions in the India Deal, the United

States can reasonably expect preferential treatment for U.S. vendors relative to Russian or European vendors. Early discussions

have included the F-16 and F-18 tactical aircraft and the P-3C

Orion maritime surveillance aircraft.

Will the United States Get the Benefits of the India Deal?

The list above is a very substantial—even breathtaking—set of

potential benefits to the United States of a strategic partnership

with India. How realistic is it?

Some of the items on this list reflect common national interests

of India and the United States. The United States might therefore

have had many of these benefits without having to pay the nonproliferation costs associated with nuclear recognition for India.

Most of the items on the list are also hypothetical and lie in a future that neither side can predict—this is certainly the case with

regard to the China counterweight and Pakistan contingency items.

Other items on the list, like Iran’s nuclear program, will unfold

sooner. The United States can certainly hope that India will behave

as a true ‘‘strategic partner’’ in the future across all the items on

this list. But there is a risk that when the United States comes to

ask India to do something it is reluctant to do, that it comes to regret having played its big diplomatic card—nuclear recognition—so

early in the process.

India, as befits a great nation on its way to global prominence,

will have its own opinions about this list. Some American proponents of the India Deal have compared it to Nixon’s opening to

China—a bold move based on a firm foundation of mutual interest,

but more a leap of trust than a shrewd bargain. Mao and Nixon,

however, had a clear and present common enemy—the Soviet

Union—not a hypothetical set of possible future opponents. But the

real difference between the Nixon/Kissinger deal and the India

Deal is that India, unlike Mao’s China, is a democracy. No government in Delhi can turn decades of Indian policy on a dime or commit it to a broad set of actions in support of U.S. interests—only

a profound and probably slow change in the views of India’s elites

can do this. India’s bureaucracies and diplomats are fabled for their

stubborn adherence to independent positions regarding the world

order, economic development, and nuclear security. Proponents of

the India Deal suggest that these positions will yield to the grand

gesture of nuclear recognition by the United States. This expectation is naive. Americans view the change of long-standing and prinVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00021 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
16

cipled nonproliferation policy to accommodate India as a concession. Indians view it as acknowledgement of something to which

they have long been entitled. This is not a durable basis for a diplomatic transaction.

It is therefore premature to judge whether the expectations of

this strategic partnership as apparently foreseen on the U.S. side

are shared by India and will, in fact, materialize. The Deal itself

was premature. The risk with a hastily prepared diplomatic initiative is that disenchantment will set in on both sides. At this point,

the United States, including the Congress, can only do its best to

ensure that its benefits are fully realized—by both parties.

(17)

TESTIMONY OF

THE HONORABLE WILLIAM J. PERRY

SENIOR FELLOW, THE HOOVER INSTITUTION

BEFORE THE

SENATE COMMITTEE ON FOREIGN RELATIONS

WEDNESDAY, APRIL 26, 2006

My views on the recently concluded Civilian Nuclear Cooperation

Agreement between India and the United States can be summarized in three points.

Firstly, I enthusiastically support the development of a strategic

partnership between the United States and India, of which this

agreement could be an important step. The benefits of a strategic

partnership were convincingly outlined in the earlier testimony of

Secretary of Rice to this committee. I associate myself with her

views on the importance of a strategic partnership. In particular,

I expect that this could include a robust military-to-military partnership, including, for example, joint exercises in humanitarian relief operations, in responding to emergencies at sea, and in peacekeeping operations. Those exercises could be modeled after the

comparable exercises conducted in Europe by the Partnership for

Peace.

Secondly, I understand the need of India to aggressively develop

nuclear power for its growing industrial base, and I believe that

the United States should support India in that development. The

importance of nuclear power to India and to the global environment

were convincingly outlined by Dr. David Victor in his op-ed piece

in the International Herald Tribune on 17 March. And I commend

this to the committee. I associate myself with Dr. Victor’s views on

this subject.

Thirdly, I am disappointed that the United States did not seize

the opportunity presented in the formulation of this agreement to

undertake a joint program with India directed at preventing the

spread of nuclear weapons. Stopping nuclear proliferation is an important American objective. It is an important international objective. And it should be an important Indian objective. I believe that

it is not too late to join forces with India to further this critical objective.

I’d like to highlight four actions that India could take that would

make a significant difference in preventing the spread of nuclear

weapons:

18

First, India could join other nuclear powers in implementing strong controls on the transfer of nuclear technology and materials.

Secondly, India could take a leadership position in promoting an international cutoff in the production of fissile

material.

Third, India could cooperate with the United States and

the EU-3 in pressuring Iran to stop the programs that are

facilitating an Iranian nuclear bomb.

And, fourth, India could explicitly reaffirm its intention

of limiting its nuclear arsenal to minimal deterrence levels.

Secretary Rice, in her testimony, has suggested that India is prepared to take many of these actions, but they are not an explicit

part of the agreement. I do not recommend that the Senate try to

modify the agreement to include them. Instead, I recommend that

the Senate task the administration to vigorously pursue continuing

diplomacy to facilitate these actions, and that should be as a follow-on to the agreement. Indeed, I believe that these actions are

strongly in the interest of India, and I believe that the Indian Government understands that.

What is the motivation—what is the incentive that the administration would have to actually carry out this diplomacy? First of

all, they are in India’s interest. And, secondly, only if India moves

aggressively to carry out these actions will they be providing the

foundation on which the strategic partnership desired by both

countries can, in fact, be achieved.

(19)

PREPARED STATEMENT OF

HON. ROBERT L. GALLUCCI

DEAN OF THE EDMUND A. WALSH SCHOOL OF FOREIGN SERVICE, GEORGETOWN UNIVERSITY

BEFORE THE

U.S. SENATE COMMITTEE ON FOREIGN RELATIONS

26 APRIL 2006

In this brief statement, I wish to make only three points. The

first is that those who advocate making this special arrangements

to permit nuclear cooperation with India ought to be clear—and

honest—about why they are doing so. The second is that the reasons for making the particular deal they propose, while important,

do not justify the cost to the national security of doing so. And

third, that there is an arrangement which would, in fact, strike the

right balance between competing national security interests, an arrangement that may be negotiable at some future time, if not now.

The United States has good reasons for improving its relations

with India, both political and economic. Part of the calculation

must turn on our uncertainties about China, about whether Beijing

will turn out to be more of a strategic competitor than partner in

the decades ahead. If internal developments in China do not proceed as we hope, and if Chinese foreign policy turns out to be more

hegemonic than we expect, a solid political relationship with India

could be important to our security. Moreover, independent of such

considerations, India’s enormous and growing economic and political importance make the improvement of relations with New Delhi

a prudent objective for the United States.

If this is obvious, so also is the chronic irritant that our non-proliferation policy has been to U.S.-India relations over the last thirty

years. We should acknowledge the importance that India attaches

to American willingness to change that policy so that the United

States can begin to sell it nuclear equipment, material and technology. We should also admit that the proposed deal would grant

what New Delhi values most, namely our acceptance of India as a

nuclear weapons state. And while we are at it, we should admit

that although the deal would be critically important to our goal of

improving relations with India, it will really do nothing to help us

deal with the risks posed by the proliferation of nuclear weapons.

Assertions to the contrary are less than honest.

There is no reason why we should attach any positive value to

India’s willingness to submit a few additional nuclear facilities of

its choosing to international safeguards, so long as other fissile maVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00025 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
20

terial producing facilities are free from safeguards. This move has

been called ‘‘symbolic’’ by critics, but it is not at all clear what useful purpose it symbolizes. The other elements of the deal that are

supposed to contribute to its non-proliferation value were in place

before the deal was struck. The first point then, is that the administration proposes this deal to address a genuine regional security

objective and not because it helps in any way our global security

concern over nuclear proliferation.

The second point is that the proposed arrangement will be too

costly to the national security to be justified by the gain in relations with India.

Since the dawn of the nuclear age and the arrival of intercontinental ballistic missiles, our nation has been defenseless against

devastating attack—leaving us to rely on deterrence, the promise

of retaliation, to deal with nuclear armed enemies. From the beginning, we recognized that this left us vulnerable to anyone who

could not be deterred, and so, in some basic way, our security depended on limiting the number of countries who ultimately acquired nuclear weapons. Most analysts believe that fifty years of

non-proliferation policy has something to do with explaining why

the spread of nuclear technology has not led to the proliferation of

nuclear weapons, why we live in a world of eight or nine nuclear

weapons states, rather then eighty or ninety. A key part of that

policy has been our support for an international norm captured in

the very nearly universally adhered to Nuclear Non-Proliferation

Treaty (NPT). The norm is simple: in the interest of international

security, no more states should acquire nuclear weapons. There are

many provisions in the treaty and details to be understood to fully

appreciate the norm, but that is its essence. Certainly the fact that

we have eight or nine states with nuclear weapons rather than

only the original five, means that the norm has not held perfectly

well. But it has had substantial force in the face of widespread acquisition of critical nuclear technologies, and that has been of vital

importance to America’s security. Simply put, the administration

now proposes to destroy that norm.

Some claim the deal would only recognize the reality of India’s

nuclear weapons program. But that is not accurate. Recognizing

that India and a few additional countries have acquired nuclear

weapons over the last three decades is not the issue. The damage

will be done to the non-proliferation norm by legitimatizing India’s

condition, by exempting it from a policy that has held for decades.

And we would do this, we assert less than honestly, because of its

exceptionally good behavior. In truth, we would reward India with

nuclear cooperation because we now place such a high value on improved relations with New Delhi, not because of its uniquely good

behavior.

Critics ask, if we do this deal, how will we explain, defend, and

promote our policy of stopping Iran’s proposed uranium enrichment

program? Iran is, after all, a party to the Nuclear Non-Proliferation

Treaty, and as far as we know, has no fissile material outside of

international safeguards and has never detonated a nuclear explosive device. A good question, but not the best one because India has

arguably been a more responsible member of the international community than Iran. Rather, if we do this deal, ask how we will avoid

21

offering a similar one to Brazil or Argentina if they decide on nuclear weapons acquisition, or our treaty ally South Korea. Dozens

of countries around the world have exhibited good behavior in nuclear matters, and have the capability to produce nuclear weapons

but choose not to, at least in part, because of the international

norm against nuclear weapons acquisition reinforced by a policy we

would now propose to abandon. Will we legitimatize only India because it never joined the NPT and thus did not have to withdraw

from it to pursue nuclear weapons? No, if India was truly unique,

there might not be much risk to that non-proliferation norm we so

depend upon, but it is not unique: the deal would set a dangerous

precedent. If we do this, we will put at risk a world of very few

nuclear weapons states, and open the door to the true proliferation

of nuclear weapons in the years ahead.

Finally, if there are two national security objectives in conflict

here, one regional and the other global, is it possible to reconcile

them? The answer is probably yes, but not now, not in the current

context. Clearly and regrettably, if the administration’s proposal

does not succeed in much the same form in which it has been put

forth, U.S.-India relations will deteriorate for a time. But acknowledging that does not mean that we should go ahead with a deal

that would do irreparable damage to our long-term national security interests. Instead, we should put forth a proposal that more

nearly balances regional and global security interests, recognizing

that it will be some time, at best, before it will appeal to New

Delhi.

In looking for that balance, we should understand that there is

something of a continuum to be considered in terms of non-proliferation provisions. At one end, for purists, is nothing less than

Indian adherence to the NPT. This is nearly impossible to foresee.

Next, for non-proliferation realists, is an Indian commitment to end

fissile material production for any purpose and forego those facilities, enrichment and reprocessing, that yield it. This would leave

India with nuclear weapons, but no means to produce the material

to make more. Significantly, it would also deny India the option of

exploring breeder reactor technology, something the Indian nuclear

energy establishment very much wants to do.

Finally, there is a more practical posture, which is to permit nuclear cooperation with India if it accepts a reasonably verifiable

ban on the production of any more fissile material for nuclear

weapons purposes. This approach would permit India reprocessing

and enrichment facilities, but effectively require international safeguards on all its nuclear facilities and any nuclear material produced in the future. Its appeal in regional terms is that it would

allow India to pursue nuclear energy without restrictions of any

kind—more than we are willing to do for Iran at the moment. From

the global security perspective, we will have succeeded in capping

a nuclear weapons program, a substantive achievement which arguably offsets a breach of the long-standing policy against nuclear

cooperation with a state such as India that does not accept fullscope safeguards. The deal would have to have other provisions,

such as rigorous nuclear export control policies, a ban on export of

enrichment or reprocessing technology, and a permanent prohibition on nuclear explosive testing, but this is its essence.

22

The deal described above would require India to choose between

the opportunity to expand its nuclear energy program on the one

hand, and the expansion of its nuclear weapons arsenal on the

other. The administration proposes to allow India to do both, and

that would be a mistake. Our security depends on maintaining the

norm against nuclear weapons proliferation.

(23)

1My previous reflections on different aspects of the U.S.-Indian nuclear cooperation initiative

can be found in Ashley J. Tellis, ‘‘South Asian Seesaw: A New U.S. Policy on the Subcontinent,’’

Policy Brief, 38 (Washington, D.C.: Carnegie Endowment for International Peace, May 2005);

Ashley J. Tellis, India as a New Global Power: An Action Agenda for the United States (Washington, D.C.: Carnegie Endowment for International Peace, June 2005); Ashley J. Tellis, Testimony to the House Committee on International Relations, Subcommittee on Asia and the Pacific, on ‘‘The United States and South Asia,’’ June 14, 2005; Ashley J. Tellis, ‘‘Should the US

Sell Nuclear Technology to India?—Part II,’’ YaleGlobal Online, November 10, 2005; and, Ashley

J. Tellis, Prepared Testimony to the House Committee on International Relations on ‘‘The U.S.-

India ‘Global Partnership’: How Significant for American Interests?’’ November 16, 2005.

PREPARED STATEMENT OF

DR. ASHLEY J. TELLIS

SENIOR ASSOCIATE, CARNEGIE ENDOWMENT

FOR INTERNATIONAL PEACE

BEFORE THE

U.S. SENATE COMMITTEE ON FOREIGN RELATIONS

APRIL 26, 2006

Good morning, Mr. Chairman, and Members of the committee.

Thank you for inviting me to testify on the proposed cooperation

between the United States and India in regards to atomic energy.

This is obviously a complex subject with different facets stretching

from the political to the technical. It is also a subject I have given

some thought to and have written about in the past.1 As requested

in your letter, I will focus my oral and written remarks this morning mainly on the strategic logic underlying the President’s initiative on civil nuclear cooperation and its importance for the transforming U. S.-Indian relationship. I will be happy, however, to

cover those aspects that I have not touched on in my formal testimony during the discussion that follows. I respectfully request that

my statement be entered into the record.

The United States and India today are confronted by an incredible opportunity to craft a new global partnership that promises to

advance a range of common interests in a way that was simply impossible during the Cold War. These interests encompass a wide

variety of issues ranging from the preservation of peace and stability in a resurgent Asia over the long term, through the current

exigencies relating to the global war on terror, to promoting complex collective goods such as arresting the spread of weapons of

mass destruction, managing climate change, and promoting liberal

democracy and an open trading system.

Thanks to the tight bipolarity of the Cold War, U.S.-Indian relations during that entire epoch were characterized by alternation: in

almost every decade, troughs of estrangement invariably followed

peaks of strong cooperation. Despite the desires of leaders on both

24

sides, the quest for a strong bilateral relationship was repeatedly

frustrated, which from an American perspective appeared to be the

case for at least three reasons unique to India: first, New Delhi’s

emphatic determination to pursue a non-aligned foreign policy at a

time when liberal states were under threat from global communism; second, India’s relative weakness during much of the Cold

War caused by its pervasive economic underperformance that, in

turn, sealed its strategic irrelevance to the global system; and,

third, India’s anomalous nuclear status since 1974 when, in becoming ‘‘a state with nuclear weapons, but not a nuclear weapon state,’’

New Delhi found itself cast into a netherworld where it soon became the most important target of global anti-proliferation efforts.

By the time the Cold War ended, the first two impediments were

on their way to being resolved. The demise of the Soviet Union destroyed the international system that made non-alignment structurally relevant and freed both the United States and India to seek

better relations undistracted by the pressures of Cold War geopolitics. By 1991—and although it was difficult to see this clearly

at the time because of New Delhi’s financial crisis—the Indian

economy was also on its way to becoming a star performer, having

left behind the abysmal 3.5 percent ‘‘Hindu rate of growth’’ that

had characterized its productive performance since independence.

To its credit, the Clinton administration, perceiving both these

realities, made an initial effort to construct a new relationship with

India. A wide-ranging diplomatic dialogue was instituted in the

hope that the two democracies could find common ground, and

India was designated a ‘‘big emerging market’’ worthy of special

U.S. commercial attention. But, despite its good intentions, the

Clinton administration could not redress the third impediment that

had by now come to haunt U.S.-Indian relations, namely India’s

anomalous nuclear status which made it the single most important

target of U.S. anti-proliferation activities worldwide. Confronted by

this challenge, the administration attempted to implement two different policies towards India. It began with an effort to improve

ties with New Delhi across the board, while simply quarantining

the nuclear issue in the hope of preventing it from contaminating

improvements that might be realized in other areas of the bilateral

relationship. This approach, however, quickly reached the limits of

its success because the U.S.-led anti-proliferation efforts since 1974

had effectively succeeded in institutionalizing a complex global

technology denial regime that prevented India from getting access

even to important non-strategic technologies because of fears that

these might eventually leach into its nuclear programs. India’s irregular nuclear status under the Non-Proliferation Treaty had in

fact become such an impediment that the Clinton administration’s

strategy of quarantining the nuclear issue failed either to resolve

the nuclear disagreement or to transform the bilateral relationship.

By the second term, the Clinton administration emphasized an

alternative strategy, driven largely by its efforts to tighten the

global nonproliferation regime. While continuing its previous effort

to improve relations with India in a variety of areas such as diplomatic engagement and defense cooperation, the administration focused its energies simultaneously on capping, rolling back, and

eventually eliminating India’s nuclear weapons program. This shift

25

in emphasis, unfortunately, turned out to be unsuccessful: not only

did it exacerbate the already high Indian frustration with the U.S.-

led technology denial regime, but it finally provoked New Delhi

into a spectacular act of defiance through the nuclear test series of

1998 when India in a deliberate challenge to the international

order declared itself to be a ‘‘nuclear weapon state.’’

Although much of this story may sound like ancient history, it

is worth remembering for two important reasons that are critical

to understanding the strategic wisdom underlying President Bush’s

decision to initiate civilian nuclear cooperation with India.

First, the transformation of U.S.-Indian relations, as desired by

the President and which enjoys bipartisan support in Congress,

cannot be consummated without resolving the problems caused by

India’s anomalous status in the nuclear non-proliferation order.

The Clinton administration spent eight long years trying to improve U.S. relations with India, while at the same time avoiding

any effort to alter India’s status as an outlier in the global non-proliferation system. The historical record shows conclusively that well

intentioned though it was—and perhaps even necessary—this

strategy ultimately failed. An old maxim of military strategy calls

on leaders to ‘‘reinforce success, abandon failure.’’ President Bush’s

initiative on civil nuclear cooperation with India is an effort to do

just that, given that all other U.S. policies since at least 1974 have

by now proven to be less than successful.

Second, the transformation of U.S.-Indian relations, as desired by

the President and which enjoys bipartisan support in Congress,

cannot be inherently schizophrenic if it is to be successful enough

to advance common American and Indian interests in this new century. As our ties with friends and allies in Europe and Asia demonstrate, the United States has a variety of bilateral relationships

defined by different degrees of intensity and intimacy. What all

these relationships have in common, however, is that in no case is

any U.S. partner made the deliberate target of a punitive policy

concertedly pursued by Washington. Through his proposal for full

civil nuclear cooperation with India, President Bush has in effect

conveyed his belief that if India is to become a full strategic partner of the United States in this new century, a comparable courtesy must be extended to New Delhi as well. Stated in a different

way, the President has recognized that it is impossible to pursue

a policy that simultaneously seeks to transform New Delhi into a

strategic partner of the United States on the one hand, even as

India remains permanently anchored as Washington’s nonproliferation target on the other.

These two reasons combine to underscore the point that Secretary Rice made in her recent testimony to this committee. Far

from being an appendage to growing U.S.-Indian ties, bilateral civilian nuclear cooperation promises to become ‘‘the key that will

unlock the progress of our expanding relationship.’’ Congressional

action to implement this initiative is therefore critical not simply

because it will help address India’s vast and growing energy

needs—though it will certainly do that—or because it will mitigate

the burdens of environmental pollution and climate change in

South Asia—though those must be counted among its benefits as

well—but because it symbolizes, first and foremost, a renewed

26

American commitment to assisting India meet its enormous developmental goals and thereby take its place in the community of nations as a true great power.

Renewed civilian nuclear cooperation thus becomes the vehicle by

which the Indian people are reassured that the United States is a

true friend and ally responsive to their deepest aspirations. By altering the existing web of legal constraints on civilian nuclear cooperation with India, Congress would also expand simultaneously

India’s access to a wide range of controlled technologies that are

useful for numerous peaceful economic endeavors going beyond

merely the production of electricity. The successful implementation

of the civilian nuclear cooperation agreement would therefore

epitomize’as Prime Minister Manmohan Singh told Under Secretary of State Nicholas Burns in New Delhi in February 2006—

‘‘a historic reconciliation between the United States and India and

a new concord after many decades of anxiety, distrust, and suspicion in our bilateral relations.’’

The increasing value of this transforming bilateral relationship

with India for the United States will be manifested most clearly in

three areas that will be vitally important to American security in

this century.

To begin with, a strong American partnership with a democratic

India will be essential if we are to be able to construct a stable geopolitical order in Asia that is conducive to peace and prosperity.

There is little doubt today that the Asian continent is poised to become the new center of gravity in international politics. Most analyses suggest that although national growth rates in several key

Asian states—in particular Japan, South Korea, and possibly

China—are likely to decline in comparison to the latter half of the

Cold War period, the spurt in Indian growth rates, coupled with

the relatively high though still marginally declining growth rates

in China, will propel Asia’s share of the global economy to some 43

percent by 2025, thus making the continent the largest single locus

of economic power worldwide. An Asia that hosts economic power

of such magnitude, along with its strong and growing connectivity

to the American economy, will become an arena vital to the United

States—in much the same way that Europe was the grand prize

during the Cold War. In such circumstances, the administration’s

policy of developing a new global partnership with India represents

a considered effort at ‘‘shaping’’ the emerging Asian environment to

suit American interests in the twenty-first century.

This should not be interpreted as some kind of thinly veiled code

signifying the polite containment of China, which many argue is in

fact the administration’s secret intention. Such claims are, in my

judgment, erroneous. A policy of containing China is neither feasible nor necessary for the United States at this point in time. Further, it is not at all obvious that India, currently, has any interest

in becoming part of any coalition aimed at containing China. Rather, the objective of strengthening ties with India is part of a larger—and sensible—administration strategy of developing good relations with all the major Asian states. As part of this general effort,

it is eminently reasonable for the United States not only to invest

additional resources in strengthening the continent’s democratic

powers but also to deepen the bilateral relationship enjoyed with

27

each of these countries—on the assumption that the proliferation

of strong democratic states in Asia represents the best insurance

against intra-continental instability as well as threats that may

emerge against the United States and its regional presence.

Strengthening New Delhi and transforming U.S-Indian ties, therefore, has everything to do with American confidence in Indian democracy and the conviction that its growing strength, tempered by

its liberal values, brings only benefits for Asian stability and American security. As Under Secretary of State Nicholas Burns succinctly stated in his testimony before the House International Relations Committee, ‘‘By cooperating with India now, we accelerate the

arrival of the benefits that India’s rise brings to the region and the

world.’’

Further, a strong American partnership with a democratic India

will be essential if we are to succeed in preserving an efective nonproliferation system that stems the difusion of nuclear materials

and technologies required for the creation of nuclear weapons. The

central component of civilian nuclear cooperation is critical in this

regard because it formalizes a bargain that gives India access to

nuclear fuel, technology, and knowledge on the condition that New

Delhi institutionalizes stringent export controls, separates its civilian from its strategic facilities and places the former under safeguards, and assists the United States in preventing further proliferation. Bringing India into the global non-proliferation regime

in this way produces vital benefits both for the United States and

for all non-nuclear weapons states insofar as it transforms India’s

hitherto commendable nonproliferation record, which is owed entirely to voluntary sovereign decisions made by successive Indian

governments, into a formal and binding adherence through a set of

international agreements. Thanks to the President’s initiative,

India has now agreed to obligations that in fact go beyond those

ordinarily required of NPT signatories, such as refraining from

transfers of enrichment and reprocessing technologies to states that

do not already possess them and supporting efforts to limit their

spread; working with the United States to conclude a multilateral

Fissile Material Cutoff Treaty; continuing its unilateral moratorium on nuclear testing; and adhering to the Missile Technology

Control Regime (MTCR) and the Nuclear Suppliers Group (NSG)

guidelines.

Bringing India into the global nonproliferation regime through a

lasting international agreement that defines clearly enforceable

benefits and obligations not only strengthens American efforts to

stem further proliferation but also enhances U.S. national security.

The President’s accord with India advances these objectives in a

fair and direct way. It recognizes that it is unreasonable to ask

India to continue to bear the burdens of contributing towards ensuring the viability of the global nonproliferation regime in perpetuity, while it suffers stiff and encompassing sanctions from that

same regime. And so the President has asked the Congress to support his proposal to give India access to nuclear fuel, technology,

and knowledge in exchange for New Delhi formally becoming part

of the global coalition to defeat the proliferation of weapons of mass

destruction. In other words, he offers India the benefits of peaceful

nuclear cooperation in exchange for transforming what is currently

28

a unilateral Indian commitment to nonproliferation into a formally

verifiable and permanent international responsibility.

The fruits of this initiative are already in evidence, for example,

in connection with India’s strong support for the U.S.-led efforts to

persuade Iran to live up to its freely accepted non-proliferation obligations. This Indian decision has not been easy because of New

Delhi’s otherwise good relations with Tehran. India and Iran share

historical links that go back thousands of years; India and Iran

played a pivotal role in ensuring the viability of the Northern Alliance in Afghanistan during the darkest days of Taliban rule; India

remains one of Iran’s most important customers for oil and natural

gas, and it continues discussions with Islamabad and Tehran about

the construction of a gas pipeline that would link the three countries and help meet India’s large and growing energy needs. Many

voices in the American debate on the civilian nuclear initiative

have demanded that India curtail its economic and diplomatic links

to Iran as the price of securing U.S. cooperation in regards to civilian nuclear energy. Such demands are unreasonable. The negotiations over the Iranian-Pakistani-Indian gas pipeline are unlikely to

succeed simply because of economic considerations, but New Delhi

is unlikely to concede to any demands that rupture its diplomatic

and economic relationship with Tehran if these are seen to have no

relationship with the issue of nuclear proliferation. On this score,

India is likely to behave in a fashion identical to that of our close

allies such as Japan and Italy. It will demand—as it has done thus

far—that Tehran live up to its international non-proliferation commitments and obligations, and it will abide by any decisions made

by the international community to enforce these responsibilities,

but it is unlikely to unilaterally sacrifice its bilateral relationship

with Iran in areas that are not perceived to have any connection

with non-proliferation and which do not pose a threat to common

security.

Finally, a strong American partnership with a democratic India

will be essential if we are to successfully preserve a global order

that protects liberal societies and advances freedom in myriad

ways. This objective encompasses a congeries of diverse goals, including promoting democracy, defeating terrorism and religious extremism, collaborating to protect the energy routes and lines of

communication supporting free trade and commerce, expanding the

liberal international economic order, and managing climate

change—each of which is critical to the well being of the United

States. It does not take a great deal of imagination to recognize

that for the first time in recent memory Indian and American interests on each of these issues are strongly convergent and that India’s contribution ranges from important to indispensable as far as

achieving U.S. objectives is concerned.

The President’s intention in proposing civilian nuclear cooperation with India is fundamentally driven by his conviction that

every impediment to a closer relationship ought to be eliminated,

so that both our countries can enjoy the fullest fruits of an evertighter partnership in regards to each of the issues above. It is also

driven by his desire to assist New Delhi’s growth in power on the

assumption that a strong democratic India would ultimately advance America’s own global interests far better than a weak and

29

failing India would. The key word, which the administration understands very well in this context, is ‘‘partnership.’’ A strengthened

bilateral relationship does not imply that India will become a treaty-bound ally of the United States at some point in the future. It

also does not imply that India will become a meek, compliant and

uncritical collaborator of the United States in all its global endeavors. Rather, India’s large size, its proud history, and its great ambitions, ensure that it will always pursue its own interests—just like

any other great power.

During his recent visit to the United States in March this year,

India’s Foreign Secretary Shyam Saran, appealed to his American

interlocutors to recognize that ‘‘when an open society like India

pursues its own interests, this is more likely than not to be of benefit to the United States.’’ If the President’s views on India going

back to the campaign in 2000 are any indication, George W. Bush

had already reached this conclusion at least five years ago. In fact,

every initiative involving India, beginning with the Next Steps in

Strategic Partnership in the first term and ending up with the proposal on civilian nuclear cooperation in the second, suggest that the

President has concluded—correctly—that a strong and independent

India represents a strategic asset, even when it remains only a

partner and not a formal ally. This judgment is rooted in the belief

that there are no intrinsic conflicts of interest between India and

the United States. And, consequently, transformed ties that enhance the prospect for consistent ‘‘strategic coordination’’ between

Washington and New Delhi on all the issues of global order identified above serve U.S. interests just as well as any recognized alliance.

The question that is sometimes asked in this connection is

whether a close U.S.-Indian partnership would be impossible in the

absence of civilian nuclear cooperation. The considered answer to

this question is ‘‘Yes.’’ This is not to say that U.S.-Indian collaboration will evaporate if civilian nuclear cooperation between the two

countries cannot be consummated, but merely that such collaboration would be hesitant, troubled, episodic, and unable to realize its

full potential without final resolution of the one issue that symbolically, substantively, and materially kept the two sides apart for

over thirty years. At a time when U.S.-Indian cooperation promises

to become more important than ever, given the threats and uncertainties looming in the international system, the risk of unsatisfactory collaboration is one that both countries ought not to take.

Through the civilian nuclear cooperation initiative, President

Bush has embarked on a bold and decisive step to eliminate those

long-standing impediments between Washington and New Delhi

and to place the evolving U.S-Indian relationship on a firm footing

guided by a clear understanding of the geo-strategic challenges

likely to confront the United States in the twenty-first century.

Recognizing that a new global partnership would require engaging

New Delhi not only on issues important to the United States, the

administration has moved rapidly to expand bilateral collaboration

on a wide range of subjects, including those of greatest importance

to India. The proposal pertaining to extending civilian atomic energy cooperation to India is, thus, part of a larger set of Presidential initiatives involving agriculture, cybersecurity, education,

30

energy, health, science and technology, space, dual-use high technology, advanced military equipment, and trade.

Irrespective of the issues involved in each of these realms, the

President has approached them through an entirely new prism,

viewing India, in contrast to the past, as part of the solution rather

than as part of the problem. He has judged the growth of Indian

power to be beneficial to America and its geopolitical interests in

Asia and, hence, worthy of strong support. And, he is convinced

that the success of Indian democracy, the common interests shared

with the United States, and the human ties that bind our two societies together, offer a sufficiently lasting assurance of New Delhi’s

responsible behavior so as to justify the burdens of requesting Congress to amend the relevant U.S. laws (and the international community, the relevant regimes) pertaining to peaceful nuclear trade.

On all these matters, I believe—without any qualification—that the

President has made the right judgment with respect to India and

its importance to the United States. I hope that Congress will

agree.

Thank you, Mr. Chairman, for your attention and consideration.

(31)

PREPARED STATEMENT OF

HON. RONALD F. LEHMAN II

DIRECTOR, CENTER FOR GLOBAL SECURITY RESEARCH, LAWRENCE

LIVERMORE LABORATORY

BEFORE THE

U.S. SENATE COMMITTEE ON FOREIGN RELATIONS

APRIL 26, 2006

MR. CHAIRMAN, MEMBERS OF THE COMMITTEE: In November of

last year, the committee asked me to join in its consideration of the

July 18, 2005 Joint Statement of President George W. Bush and

Prime Minister Manmohan Singh on civil nuclear cooperation. You

have that testimony before you. Today’s hearing considers the strategic and nonproliferation implications of the Joint Statement in

the context of S. 2429, legislation to advance that agreement.

In the last six months, intense negotiations have taken place.

Uncertainty still exists and warrants caution, but both sides have

taken steps and made clarifications. Nothing has become known,

however, that would cause me to change my basic conclusions and

concerns, which again are my personal views. Let me briefly recall

that analysis:

The Joint Statement is an historic milestone for nonproliferation that creates both great opportunity and great

risk. It creates an opportunity to strengthen a nuclear nonproliferation regime that is suffering from its own internal

weaknesses such as inadequate enforcement, the threat of

breakout once an advanced nuclear capability has been

achieved, and an inability to engage effectively the nonparties to the NPT. Because the terms of the Joint Statement, however, also spotlight those weaknesses, mishandling of the implementation of its terms can have adverse consequences even when the best of intentions are

involved.

* * * * *

If the basic approach contained in the Joint Statement

collapses, we will not return to the status quo ante. U.S.-

Indian cooperation will be set back, but also the weaknesses in the existing regime will be exposed to even greater pressure. Bringing India into a more comprehensive regime of nonproliferation and restraint, however, could sigVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00037 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
32

nificantly enhance our ability to reduce the dangers associated with weapons of mass destruction. Congress can help

insure that this is a sufficiently ambitious agenda. India

could do much to help within its borders, in South Asia,

in other troubled regions, and globally.

* * * * *

I would urge the Congress to focus on the dynamics of

the process and the goals to be achieved as a result of the

U.S.-India Joint Statement rather than attempting to rearrange the pieces of the initial package. Much that one

might have detailed in the original package may be more

successfully achieved by driving subsequent interactions in

the right direction. This can only be done, I believe, if nonproliferation is a centerpiece of strategic engagement rather than a trade-off. It is best achieved by retaining a viable

Nuclear Non-Proliferation Treaty at the core of a broader

nonproliferation regime that uses more targeted, embedded engagement to address the fundamental causes and

conditions of proliferation. In short, widely shared goals

should guide our actions, but implementation will fail if a

‘‘one size fits all’’ mentality is applied rigidly to different

circumstances.

The legislation before you is intended to support these goals by

memorializing the principles for a bi-partisan consensus between

both executive and legislative branches that can provide a stable

basis over time for both India and the United States to work together. Such cohesion and clarity of purpose, as the United States

engages India, would be very valuable, particularly in support of

our nonproliferation efforts.

That is not the same as saying that partnership with India will

be easy. My own view is that the road ahead with India will be

rocky, certainly when measured against the current euphoria about

India even among those who have concerns about civil nuclear cooperation. The overselling of the new relationship today by many

will become more obvious in the near term, but in the long term,

common interests and steady foreign policy could result in achieving or exceeding expectations. This is not a certain outcome, however.

At the same time, many of the concerns about the strategic partnership’s impact on nonproliferation are also overstated or manageable. Too often the friends of the NPT act as if they are rearranging the deck chairs of what their rhetoric describes as a sinking nonproliferation ‘‘Titanic.’’ The nuclear nonproliferation regime

is under stress, but the Indo-U.S. Civil Nuclear Cooperation Agreement did not put it there. Indeed, the agreement offers an opportunity to strengthen the regime through partnership with India, especially if India calls a truce in its more than thirty years guerrilla

war against the NPT. Real nonproliferation needs real, embedded

engagement. Again, the successful execution of the partnership

over time must be the measure of merit, not the initial ceremonies

or even enabling legislation.

33

It is right to take the time now to codify clear nonproliferation

commitments that will guide the strategic partnership, but, in the

future, we must also insure that the parties live up to those commitments and adjust to new challenges. We must not let time erode

the emphasis on nonproliferation that should be integral to the

Indo-U.S. relationship. This legislation can be consistent with that

approach, but changing circumstances could also undermine our

clarity of purpose over time, particularly in nonproliferation. In the

early 1990s erosion of purpose perhaps fatally damaged our nonproliferation prospects and achievements with respect to North

Korea, and one sees similar developments emerging on Iran among

allies, friends, and non-governmental organizations. In this age of

rapidly advancing technology, time is not always on the side of

nonproliferation.

S. 2429 gives emphasis to the nonproliferation objectives of the

new Indo-U.S. partnership. It conditions civil nuclear cooperation

on the President’s determination that India:

• has provided the US and the IAEA a credible plan to separate

its civil and military facilities,

• has an IAEA safeguards agreement in force,

• is making progress with the IAEA ‘‘toward implementing’’ an

Additional Protocol,

• ‘‘is working with the United States for the conclusion of a multilateral Fissile Material Cut-off Treaty,’’

• ‘‘is supporting international efforts to prevent the spread of enrichment and reprocessing technology,’’

• is securing nuclear materials and technology through export

controls and adherence to the Missile Technology Control Regime and the Nuclear Suppliers Group guidelines, and

• the Section 123 Agreement between the U.S. and India is consistent with U.S. ‘‘participation in the Nuclear Suppliers

Group.’’

An eighth condition is dealt with separately, differently, and

more emphatically; namely that India not ‘‘have detonated a nuclear explosive device after the date of enactment.’’

All of these are important conditions, not only when we begin

going down this path of partnership, but also in the years ahead.

The Executive Branch seems legitimately concerned that an annual

process of determinations and legislative enactment would be corrosive and counterproductive over time in the real world of political

give and take at home and abroad. That view is not wrong.

(35)

PREPARED STATEMENT OF

HON. ROBERT J. EINHORN

SENIOR ADVISER, CENTER FOR STRATEGIC

AND INTERNATIONAL STUDIES

BEFORE THE

SENATE COMMITTEE FOREIGN RELATIONS

APRIL 26, 2006

Mr. Chairman, thank you for the opportunity to testify before the

committee on the nonproliferation implications of the U.S.-India

agreement on civil nuclear cooperation.

The argument for overcoming the nuclear impasse with India—

for altering the nuclear status quo that cut India off from international civil nuclear cooperation for over 30 years—has become increasingly persuasive. It has been clear for many years that maintaining existing U.S. laws and Nuclear Suppliers Group (NSG)

guidelines prohibiting such cooperation would not succeed in inducing New Delhi to join the NPT or give up nuclear weapons. And

as the Bush administration has argued, modifying those laws and

guidelines for India could give a boost to U.S. relations with a rising democratic world power and assist in addressing India’s growing energy needs.

The dilemma we now face is how to achieve the benefits of

changing the rules without undermining the vital U.S. interest of

preventing the proliferation of nuclear weapons. How, for example,

can the United States seek exceptions to the rules for India without opening the door to exceptions in less worthy cases—indeed,

without weakening the overall fabric of rules the U.S. worked so

hard to create? How would U.S. allies and friends who had to

choose between nuclear weapons and civil nuclear cooperation (and

who made what the U.S. regarded as the right choice) view giving

India the opportunity to have its cake and eat it too? How can we

avoid conveying the impression to countries contemplating the nuclear option in the future that, if they opted for nuclear weapons,

the world would eventually accept them into the nuclear club?

Given the inevitable nonproliferation risks involved in reversing

three decades of U.S. law and multilateral policy to permit nuclear

cooperation with India, it is essential that such a major shift be accompanied by Indian steps that, on balance, strengthen the nonproliferation regime. Moreover, a policy departure of such magnitude should be preceded by thorough discussions with the Congress and key international partners to ensure they are comVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00041 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
36

fortable with the initiative and share the view that it does not undercut nonproliferation interests.

But the U.S.-India civil nuclear cooperation deal negotiated by

the Bush administration doesn’t meet those requirements. In the

administration’s eagerness for a foreign policy success, the deal was

concluded in great haste, driven by the calendar of Bush-Singh

meetings rather than by the seriousness and complexity of the task

at hand. Key stakeholders in the U.S. Congress and the 45-nation

Nuclear Suppliers Group (NSG) were not consulted in advance.

While speed and exclusivity are often necessary to overcome bureaucratic and international resistance to major initiatives, this

must be balanced against the need for buy-in, especially when the

success of the initiative depends on approval by both the Congress

and NSG. In its desire to show boldness and demonstrate a clean

break with the past, the administration gave too little weight to

the nonproliferation downsides and too much weight to proving to

the Indians its dedication to building a qualitatively new relationship. In the process, it failed to use the leverage available to it to

achieve U.S. objectives.

As a result, the deal outlined in the Joint Statement concluded

when Prime Minister Singh visited Washington last July, and further elaborated on March 2nd when President Bush was in Delhi,

gave the Indians virtually all that they wanted—the ability to acquire nuclear equipment and technology and desperately needed

uranium on the world market, acceptance as a nuclear weapon

state in all consequential respects, and complete freedom to continue and expand production of fissile material for nuclear weapons. What the U.S. got from the deal was, for the most part, speculative—the hope that a stronger partnership with India will pay

strategic dividends down the road.

BENEFITS FOR NONPROLIFERATION ARE MODEST

Recognizing that much of the criticism of the civil nuclear deal

would be based on its implications for nonproliferation, the administration has made a special effort to show that the deal strengthens the global nonproliferation regime. But the arguments are not

very convincing.

Several of the steps promised by India are simply reaffirmations

of existing commitments, including its pledges to continue its unilateral moratorium on nuclear weapons testing, strengthen its national system of export controls, and work toward the conclusion of

a multilateral fissile material cutoff treaty. Some other steps—including adherence to the guidelines of the NSG and the Missile

Technology Control Regime—were actions India was already planning to take before the July 18 th Joint Statement as part of a

U.S.-Indian dialogue on technology transfer and export control.

Still others—such as the promise to refrain from transferring enrichment and reprocessing technologies to countries that do not yet

possess them—were codifications of existing Indian policies and

practices.

The potentially significant new development was India’s commitment in July to separate civilian and military nuclear facilities and

put the civilian facilities under International Atomic Energy Agency (IAEA) safeguards, thereby placing them off-limits for the proVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00042 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
37

duction of plutonium for India’s nuclear weapons program. But the

separation plan insisted upon by India’s nuclear establishment,

backed by Prime Minister Singh, and accepted by President Bush

in March would put only 14 of 22 existing or planned nuclear

power reactors under safeguards (including the six imported reactors India has no choice but to put under safeguards) and would

allow New Delhi to decide entirely on its own which future reactors

it wished to designate as civilian and submit to safeguards.

The administration has trumpeted as a major nonproliferation

gain that India will have 65 percent of its thermal reactors under

safeguards. As a gesture of support for the IAEA’s safeguards system, India’s putting eight more reactors under safeguards than it

would otherwise be obliged to do is welcome. But strategically, the

percentage of reactors under safeguards is meaningless.

The purpose of IAEA safeguards is to prevent non-nuclear weapon states from diverting nuclear materials from civilian facilities to

a nuclear weapons program. For nuclear powers like India, which

can use unsafeguarded facilities to produce fissile material for their

weapons programs, safeguards covering only a portion of their facilities serve primarily a symbolic function—to reduce the perceived

discrimination between countries that are obliged to accept safeguards on all their facilities (i.e., NPT non-nuclear states) and

those that are not. Much more meaningful than the percentage of

reactors covered by safeguards is the amount of fissile material

that could be produced at facilities not covered by safeguards.

Under the separation plan approved on March 2nd, India has kept

open plenty of options for producing fissile material for its weapons

program (including at fast breeder reactors well-suited to producing

bomb-grade plutonium).

The administration claims that the nuclear deal is a major

breakthrough because ‘‘for the first time’’ it brings India into the

international nonproliferation ‘‘mainstream.’’ In her April 5th testimony, Secretary Rice argued that: ‘‘We better secure our future by

bringing India into the international nonproliferation system, not

by allowing India to remain isolated for the next thirty years the

way it has been for the last thirty. We are clearly better off having

India most of the way in rather than all the way out.’’

This statement creates the impression that India today is totally

outside the rules and, because of that, perhaps even a potential

source of proliferation difficulties. But India, to its credit, has been

moving into the nonproliferation ‘‘mainstream’’ for quite some

time—in such areas as export controls, physical protection of nuclear materials, and interdictions of WMD-related shipments. It

still has a distance to go before its export controls meet the highest

international standards (and indeed the U.S. has sanctioned Indian

entities for sensitive assistance to Iraq, Libya, and Iran). But it is

working hard to strengthen its controls—and it will continue to do

so because it is a responsible country that recognizes that nonproliferation controls are in its own self interest. The civil nuclear

deal would reinforce these positive trends, but they will continue

with or without the deal.

38

THE RISKS ARE SUBSTANTIAL

While the nonproliferation gains that can be attributed directly

to the civil nuclear deal are modest, the potential downsides are

substantial.

By seeking an exception to the rules for a country with which the

United States wishes to build a special friendship, the nuclear deal

will reinforce the impression internationally that the U.S. approach

to nonproliferation has become selective and self-serving, not consistent and principled. Rules the U.S. previously championed will

be perceived as less binding and more optional. In general, the deal

will send the signal that the U.S.—the country the world has always looked to as the leader in the global fight against proliferation—is now de-emphasizing nonproliferation and giving it a back

seat to other foreign policy and commercial goals.

If the U.S. is seen as changing or bending the rules when they

no longer suit us, others can be expected to follow suit. Indeed, that

already seems to be happening. Russia, which a year ago said it

couldn’t provide nuclear fuel to India’s Tarapur reactors because of

its Nuclear Suppliers Group obligations, recently sent a large fuel

shipment to those reactors, arguing (over the objections of most

NSG members) that it was entitled to do so under the NSG’s ‘‘safety exception.’’ It is highly unlikely that Russia would have played

so fast and loose with the NSG’s rules in the absence of the U.S.-

India nuclear deal. It is also not by coincidence that, not long after

the U.S.-India deal, China and Pakistan began discussing additional reactor sales. It is not clear whether they will await NSG approval for such sales or simply proceed outside the guidelines of the

NSG.

The U.S.-India deal could make it harder to achieve Bush administration nonproliferation initiatives. The U.S. is now asking the

NSG to permit nuclear cooperation only with countries that adhere

to the IAEA’s Additional Protocol and to ban transfers of enrichment and reprocessing technologies to states that do not already

possess fuel-cycle facilities. But getting NSG partners to tighten

the rules in ways favored by the U.S. will be much harder if they

are also being asked to bend one of their cardinal rules (i.e., no nuclear trade with non-parties to the NPT) because the U.S. now

finds it too constraining.

The civil nuclear deal could also reduce the perceived costs to

states that might consider ‘‘going nuclear’’ in the future. In calculating whether to pursue nuclear weapons, a major factor for most

countries will be how the U.S. is likely to react. Implementation of

the deal with India will inevitably send the signal, especially to

countries with good relations with Washington, that the U.S. will

tolerate and eventually accommodate to a decision to acquire nuclear weapons.

In the near term, U.S. plans to engage in nuclear cooperation

with India will make it more difficult to address proliferation challenges such as Iran. Of course, Iran’s interest in nuclear weapons

long pre-dated the India deal and its motives for seeking nuclear

weapons have nothing to do with the deal. But the U.S.-India

agreement has strengthened the case Iran can make—and is already making—internationally and at home. Why, Iranian officials

39

ask publicly, should Iran give up its right as an NPT party to an

enrichment capability when India, a non-party to the NPT, can

keep even its nuclear weapons and still benefit from nuclear cooperation? It is an argument, however flawed and disingenuous,

that resonates well with the Iranian public and with developing

countries around the world and weakens the pressures that can be

brought to bear on Tehran.

The most serious defect of the U. S.-India nuclear deal is its failure to constrain the further production of bomb-making fissile material—plutonium and highly enriched uranium—for nuclear weapons. Indeed, as it now stands, the deal could actually help India

dramatically increase its fissile material stocks.

India’s indigenous uranium supplies are limited. Domestic uranium ore is of low quality and expensive to mine and process into

yellowcake. Annual production is low and has difficulty keeping up

with demand for both the civil energy and nuclear weapons programs. Under current nonproliferation restrictions, which prevent

India from buying uranium on the world market, India will soon

face serious shortages and painful trade-offs. Under the Bush administration plan to change U.S. law and NSG guidelines, India

could satisfy the needs of an expanding civil nuclear energy program through imports, while freeing up its domestic uranium reserves for military purposes. It would be a windfall gain for the nuclear weapons program.

In negotiations leading up to the July 18th Joint Statement, the

Bush administration proposed that India stop producing fissile material for nuclear weapons, which would have prevented India from

taking advantage of freed-up uranium supplies for weapons purposes. India rejected the proposal. The administration then made

a further attempt to limit fissile material production by proposing

that most Indian nuclear facilities, including its fast breeder reactors, be placed under IAEA safeguards and therefore made ineligible for weapons plutonium production.

But India’s nuclear establishment dug in its heels, calling publicly for minimizing safeguards coverage and avoiding constraints

on India’s bomb-making capacity. Prime Minister Manmohan

Singh, already under attack on the nuclear deal from his left-wing

coalition partners, backed up the nuclear establishment’s demands.

Anxious to conclude the nuclear deal lest the Delhi summit be seen

as a failure and calculating that Singh had less political room for

maneuver than President Bush, the administration threw in the

towel on placing meaningful limits on India’s fissile material production capacity.

As a result, a third of India’s reactors that currently exist or are

under construction will be outside safeguards and available for plutonium production. Any future reactor, thermal or breeder, can be

designated by India as outside safeguards. Of course, the Indians

will not devote all their unsafeguarded nuclear reactors to weapons

plutonium production. Indeed, given India’s ambitious nuclear energy goals, we would expect most of those reactors to be used for

civilian purposes. But even if only two or three large reactors were

used as bomb factories, India could produce enough plutonium for

well over 50 nuclear weapons each year.

40

Why should the U.S. care about Indian production of fissile material? After all, India is a friend and a responsible nuclear power.

One reason we should care is that, especially after 9/11, we have

a vital interest in limiting the availability of bomb-making materials around the world and preventing such materials from falling

into the hands of terrorist groups who, we know, are actively seeking to acquire them. If India steps up production, Pakistan can be

expected to follow suit, China could decide to resume production,

and others may be encouraged to seek their own production capabilities. The more materials produced, the more difficult and costly

it will be to secure them, and the greater the risks of nuclear terrorism.

Another reason we should care about stepped up Indian production of fissile materials is that it could lead to increased tensions

and destabilizing arms competition in southern Asia, involving

India, Pakistan, and China. Pakistani authorities have publicly

taken special note of the failure of the U.S.-India nuclear deal to

limit Indian fissile material production. Reportedly, the Pakistani

National Command Authority recently met to assess the impact of

the deal and consider adjustments Pakistan may need to make to

its own strategic plans. President Musharraf said, ‘‘We cannot remain oblivious to the changes evolving in the region. All the steps

will be taken for the defense, security, and safety of Pakistan.’’

Moreover, China has warned that the deal threatens to ‘‘undermine

global disarmament moves,’’ suggesting that Beijing may also decide that it needs to respond programmatically.

Of course, continued or even stepped up nuclear weapons production in the region would not necessarily translate into increased

tensions. Relations between Indian and Pakistan and between Indian and China have both been improving in recent years. But India’s insistence on keeping substantial fissile material production

capacity outside of safeguards—thereby keeping options open for a

substantial strategic build-up—could raise suspicions about its intentions in the minds of its neighbors and have an adverse effect

on the processes of reconciliation underway in the region.

CAN THE DEAL BE STRENGTHENED?

As it currently stands, the U.S.-India civil nuclear cooperation

deal is a net loss for nonproliferation. Can it be transformed into

a net nonproliferation gain? The answer, at this stage, lies mainly

with the U.S. Congress.

The Bush administration and the Indian Government would naturally like to see the Congress approve the deal as is, on the basis

of the draft legislation the administration has already submitted,

and to do so as quickly as possible. But especially given the unprecedented character of the deal and its far-reaching implications,

Congress has a responsibility to scrutinize it carefully before passing judgment and to adopt any modifications or conditions it deems

necessary to protect U.S. interests, including in preventing the proliferation of nuclear weapons or fissile materials.

Implementation of the civil nuclear deal will require Congressional approval of amendments to the Atomic Energy Act as well

as a bilateral U.S.-India agreement for peaceful nuclear cooperation. In addition, India and the IAEA will have to conclude an

41

agreement that applies IAEA safeguards to Indian nuclear facilities

as well as an Additional Protocol to that agreement. And finally,

the NSG will have to agree by consensus to modify its guideline

that currently precludes nuclear cooperation with states outside

the NPT. All of these arrangements are interrelated. For example,

the Bush administration’s willingness to seek changes in U.S. law

and NSG policies depended on India’s willingness to accept IAEA

safeguards on certain Indian nuclear facilities in perpetuity.

Before deciding to amend the Atomic Energy Act, the Congress

should therefore insist on seeing as much of the overall package as

possible, including the IAEA-India safeguards agreements (concluded but not necessarily already approved by the IAEA Board)

and a concluded U.S.-India agreement for peaceful nuclear cooperation. The need to assess these arrangements as a package is particularly justified because some of them will be unprecedented.

India has put the IAEA on notice that its safeguards agreement

will not follow standard models but will be ‘‘India-specific.’’ The

meaning of India-specific is not yet clear. Moreover, because India

is a nuclear power that must still be treated as a non-nuclear state

for the purposes of U.S. law, the U.S.-India peaceful nuclear cooperation agreement will be different from any previous U.S. agreement for cooperation. Negotiations on the IAEA-India safeguards

agreements and the U.S.-India agreement for peaceful nuclear cooperation have already gotten underway; and so assuming those

negotiations go smoothly, Congressional insistence on looking at

the package as a whole need not cause significant delays.

Congress should not permit normal approval processes to be

short-circuited. The Atomic Energy Act provides that agreements

for peaceful nuclear cooperation that meet all the requirements of

U.S. law will be approved automatically if the Congress does not

pass a joint resolution of disapproval within 90 days; whereas

agreements that do not meet all the statutory requirements (i.e., in

cases where those requirements are waived) must be approved by

both houses of Congress. Although the U.S.-India agreement for cooperation will not meet all the requirements of law (it is the first

of about 40 such U.S. agreements not to do so) and will therefore

require a waiver (because India will not have safeguards on all of

its nuclear facilities), the administration is nonetheless proposing

that the agreement be fast-tracked with the much less demanding

approval procedure. Clearly, the India case deserves more scrutiny,

not less. Congress should insist that both houses of Congress get

the opportunity to review and vote on the U.S.-India agreement.

In terms of the substantive elements of the U.S.-India civil nuclear deal, there are several the Congress will want to probe and

understand more clearly. Among them will be whether an Indian

nuclear test explosion—or some other Indian actions—would trigger the termination of U.S. nuclear cooperation. A related question

is whether the U.S. would be committed to assist India in obtaining

reactor fuel from third parties if U.S. fuel supplies had to be cut

off as a result of an Indian nuclear test or some other action.

Based on its review of the nuclear deal, Congress may wish to

adopt legislation that strengthens the deal and minimizes the risks

it poses to the global nonproliferation regime.

42

One means of minimizing those risks would be to restrict the

scope of nuclear cooperation with India that would be permitted by

the new legislation. A long-standing element of the nonproliferation

regime has been the ‘‘NPT preference policy,’’ which has meant giving NPT parties benefits in the civil nuclear energy area not available to those outside the NPT. A way of maintaining some preferential treatment for NPT parties would be to modify U.S. law

(and NSG guidelines) to permit nuclear-related exports to India except equipment, materials, or technologies related to sensitive fuelcycle facilities, including enrichment, reprocessing, and heavy

water production. Such a distinction would permit India to acquire

uranium, enriched fuel, nuclear reactors and components, and a

wide range of other nuclear items, but would retain the ban on

transfers of those items that are most closely related to a nuclear

weapons program. The British and French, both of whom are

strong supporters of nuclear cooperation with India, reportedly believe that nuclear cooperation with India should not include fuelcycle equipment and technologies.

Another way of reducing nonproliferation risks would be to implement the nuclear deal in a country-neutral manner—not as a

special exception to the rules for India alone, which is what the administration has proposed. A problem with the country-specific approach is that it accentuates concerns that the U.S. is acting selectively on the basis of foreign policy considerations rather than on

the basis of objective factors related to nonproliferation performance.

To avoid the pitfalls of making a country-specific exception without opening the door to nuclear cooperation in cases where it is

clearly not yet merited, the Congress might consider permitting nuclear cooperation with any state not party to the NPT that meets

certain criteria of responsible nuclear behavior (e.g., moratorium on

nuclear testing, effective export controls, strong nuclear security

measures, cooperation in stopping illicit nuclear trafficking). While

such an approach would be country-neutral, it would still enable

the U.S. Government (and other NSG members) to distinguish

among non-parties to the NPT in terms of whether—and how

soon—they would be eligible for nuclear cooperation.

By far the most important way to reduce nonproliferation risks—

and to turn the civil nuclear deal into a net nonproliferation gain—

would be for Congress to take action that would make the deal a

catalyst for curbing or even capping the worldwide buildup of

fissile material. In particular, Congress should adopt legislation

that permits nuclear cooperation to proceed when India stops producing fissile material for nuclear weapons, either by ceasing production unilaterally, by joining other nuclear powers (including

China and Pakistan) in a multilateral moratorium, or by adhering

to a multilateral, verifiable treaty banning the production of fissile

material for nuclear weapons (i.e., a fissile material cutoff treaty,

or FMCT).

In the run-up to the July 18th Joint Statement, India rejected a

Bush administration proposal that it stop producing fissile material

for nuclear weapons. But it is possible New Delhi might take a different view toward ending production not unilaterally but as part

of a multilateral moratorium or treaty. After all, India has long deVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00048 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
43

clared its support for a multilateral FMCT. Indeed, in their July

18th Joint Statement, India and the United States agreed to work

together to achieve an FMCT. If that is a serious undertaking and

not a throwaway line, it would not be unrealistic for the key nuclear powers to reach agreement on a cutoff in a reasonably short

period of time. The U.S., UK, France, and Russia have all ceased

producing fissile material for nuclear weapons as a matter of policy. China is also believed to have stopped production. With intensive diplomatic effort, it should be possible for India and the U.S.

to persuade Pakistan to join them and these other nuclear powers

in a multilateral moratorium pending completion of a formal multilateral treaty. By linking nuclear cooperation to the termination of

fissile material production, Congress could provide additional incentive for Washington and New Delhi to reach agreement at an

early date.

CONCLUSION

In seeking to make India an exception to longstanding nonproliferation rules, the Bush administration has given India virtually all that it wanted and has run major risks with the future

of the nonproliferation regime. It is therefore reasonable to ask

India to take steps to minimize the risks and demonstrate its own

strong commitment to fighting proliferation. But the administration has settled for far less than what is required to make the civil

nuclear deal a net gain for nonproliferation.

India has long wanted to be regarded as a legitimate member of

the nuclear club, not a pariah or outsider. The administration is

right that it is time that India be brought into the nonproliferation

mainstream. But with membership comes responsibilities—not just

in ensuring against leakage of nuclear equipment or technology to

other countries but also in practicing strategic restraint that can

increase international security generally. India has stated that it

is prepared to assume the same responsibilities and practices as

other nuclear powers. It so happens that the five original nuclear

weapons states have all stopped producing fissile material for nuclear weapons. Should India not be asked to join them?

Indian leaders might be expected to say that, since the original

five nuclear powers have produced more bomb-grade material than

India, India should be entitled to catch up. But since its May 1998

nuclear tests, India has often stated that its strategic requirements

are not open-ended and that it doesn’t seek nuclear parity with

China or any other country. Instead, it has consistently maintained

that it requires only a ‘‘credible, minimum deterrent capability.’’ If

that remains the case, perhaps it can soon decide that it has accumulated sufficient fissile material for its minimum deterrent needs

and can afford to forgo further production.

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A multilateral cap on the accumulation of fissile material would

make a major contribution to fighting nuclear proliferation and

preventing nuclear terrorism. Making a U.S.-India civil nuclear

deal a catalyst for achieving such an outcome would transform the

deal from a substantial loss to a substantial gain. It would enable

the U.S. to advance its strategic interest in a qualitatively improved relationship with India as well as serve its nonproliferation

interests—not promote one at the expense of the other. Congress

can play a key role in achieving such an outcome.

(45)

PREPARED STATEMENT OF

DR. GARY MILHOLLIN

DIRECTOR, WISCONSIN PROJECT ON NUCLEAR ARMS CONTROL AND

PROFESSOR EMERITUS, UNIVERSITY OF WISCONSIN LAW SCHOOL

BEFORE THE

U.S. SENATE COMMITTEE ON FOREIGN RELATIONS

APRIL 26, 2006

Mr. Chairman, and members of the committee, I would like to

thank you for inviting me to testify today on the administration’s

plan for nuclear cooperation with India, and particularly on the

plan’s strategic impact.

The committee is right to emphasize the strategic nature of the

plan. The legislation to implement it goes to the heart of our national security. The bill now before Congress would change our export control laws—laws that have been in effect for almost thirty

years, and that were adopted in response to India’s nuclear test in

1974. It is worth remembering that India achieved that test by diverting plutonium made with a peaceful U.S. nuclear export, which

is why India had to call the test a ‘‘peaceful nuclear explosion.’’

The broad question before us is this: Why, after 9/11, when we

should be doing all we can to fight terrorism, and when we talk almost every day about states or terrorists getting their hands on an

atomic bomb, should we weaken the controls on the export of nuclear material? Is this the right time to do that? And if we do it,

will it make us safer?

These are the questions that Congress should ask. So far, the debate has emphasized diplomacy and trade. The most important

questions, however, are strategic. The answers, I’m afraid, are that

the legislation will not make us safer. Instead, it will put us more

at risk.

Why? Because it is impossible to weaken export controls for

India without weakening them for everyone else. The ‘‘everyone

else’’ includes Iran, Pakistan, and even terrorist groups—working

through a national government or not—who might want to buy the

means to make mass destruction weapons. And if we do weaken export controls for everyone, which is bound to happen if we weaken

them for India, we may hasten the day when a nuclear explosion

destroys an American city.

The great flaw in the administration’s proposal is that it considers India an isolated case. This is simply impossible. To do so

contradicts the fundamental principle upon which export controls

are based. The controls today are administered through interVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00051 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
46

national regimes. The regimes include the Nuclear Suppliers Group

and the Missile Technology Control Regime. The first tries to stop

the spread of nuclear arms, the second the missiles to deliver them.

A cardinal principle of both regimes is that they are ‘‘country

neutral.’’ That is, they do not make exceptions for specific countries. The MTCR uses objective criteria to target ‘‘projects of concern’’ for missile proliferation. The NSG requires all non-nuclear

weapon states that import items designed or prepared for nuclear

use to accept comprehensive inspections. Under such inspections,

all critical nuclear material must be accounted for, regardless of

the country. In this way, the regimes have avoided making politically motivated decisions.

There is good reason for this practice. If the United States decides to drop controls to help one of its friends—in this case India—

other supplier countries will do the same for their friends. China

will drop controls on its friend Pakistan, and Russia will drop controls on its friend Iran. There will be no way to convince either

China or Russia not to do that. They will say that what is good for

your friend is good for mine. If you want to develop your market

in India, I want just as much to develop my market in Pakistan

or Iran. No country will give up a market unless other countries

do the same. That is the way international regimes work.

The regimes also rely on coordination, and on consensus. The

United States acted unilaterally when it made its deal with India.

There was no reported notification or coordination with the NSG or

MTCR before the deal was concluded. By violating the consensus

norm of these regimes, the United States has invited other members to act the same way. If they do, they may make unilateral

deals with Iran or Pakistan without informing the United States.

This risk has been created by our own action, and certainly does

not make us safer.

The regimes also require enforcement. The member countries are

required to investigate and shut down unauthorized exports by

their own companies. Since the attacks on 9/11, we have been asking the other countries to do more of this. But can we really ask

them to crack down on companies that are exporting the same kind

of goods to Pakistan or Iran that we are exporting to India? The

same kind of technology will be going to the same kind of projects.

What sense will there be in trying to interdict the one and not the

other? Even if we can convince the other supplier countries to give

lip service to an exception for India, it is unrealistic to expect them

to follow through with enforcement against their own companies.

Once we start tinkering with the regimes, they could unravel

quickly. As one expert in the Pentagon told me, they are like a

spring-loaded box. If you raise the lid, you may never get it closed

again. What he meant was that the United States has always set

the standard for export controls, and other countries have often

taken a long time to follow the U.S. lead in strengthening them.

But if the United States decides to loosen controls, it will take only

an instant for other countries to follow. The lid will fly off, and we

may never be able to get it back on.

I would also like to add a personal note to this point. I have just

returned from trips to Jordan and the United Arab Emirates,

where I helped provide training and information to assist these

47

countries in improving their export controls. I hope to go to Turkey

next. These are all Muslim countries in which the U.S. government

is trying to improve export control performance. The export control

officials in these countries are now the front-line troops in the fight

against terrorism. They must do their jobs well in order to keep

terrorists from getting their hands on dangerous technology.

In Jordan, one of the first questions I was asked was: ‘‘What

about India? Why has the United States decided to export to

India?’’ There is no way I, or any other American, can answer that

question in a credible way in a Muslim country. India, Pakistan

and Iran all decided to develop nuclear weapons under the guise

of peaceful nuclear cooperation. From this standpoint, they are indistinguishable. Why punish Pakistan and Iran but not India?

They are all guilty. There is no persuasive reason for treating them

differently. India is no different today than it was in 1998, when

it tested a nuclear weapon. So, the second question, hiding behind

the first, is ‘‘what is the ground for the discrimination?’’ None of

us wants to think of the word religion, but it is a word that is in

the mind of Muslim countries. If the United States is only against

proliferation by countries it does not like, which now appears to be

the case after the deal with India, why does it like some countries

but not others?

Congress should look deeply into these questions before approving the legislation. So far, it does not appear that anyone has done

so, including the administration. The administration’s plan was arrived at hastily, with no consultation with other regime members,

and virtually none with Congress. If the press is to be believed,

there was even little consultation with arms control experts within

the administration itself. The proponents of the deal have presented it as if it were simply a matter of trade and diplomacy. Congress should insist upon a full review of the strategic impact.

If one looks at the strategic side, it is hard to see why we should

be helping India. Only three countries have refused to sign the Nuclear Nonproliferation Treaty: India, Israel and Pakistan. Of the

three, India is the least important strategically.

Under any calculation of America’s strategic relations, Pakistan

ranks higher than India. Pakistan is essential to our ongoing military and political efforts in Afghanistan. Pakistan is also essential

to our campaign against Al Qaeda. Without the aid of General

Musharraf, we would have a much harder time accomplishing our

goals in either of these endeavors. Pakistan is also a leading power

in the Muslim world, a world with which the United States needs

better relations. Yet, our deal with India is a blow to General

Musharraf’s prestige at best, and at worst a public humiliation. We

should not give General Musharraf more trouble than he already

has.

Israel, of course, has always been a close U.S. ally, and will continue to be. Israel would like to have U.S. nuclear cooperation. In

addition, Israel is located in a part of the world that is of the highest importance to U.S. foreign policy interests.

In any competition for strategic favor from the United States,

India finishes a distant third.

Is India nevertheless important because it will become a counterweight to China? Proponents of the deal so argue. But the notion

48

that India might assist the United States diplomatically or militarily in some future conflict is pure speculation. India’s long history as the leader of the ‘‘non-aligned’’ movement points in the opposite direction. India will follow its own interests as it always has.

An example is India’s decision to train Iranian sailors and import

Iranian gas. In addition, India shares a border with China, is keen

to have good relations with China, and does have good relations

with China. It will not sour such relations simply from a vague desire to please the United States.

This India-as-counterweight-to-China theory reminds one of the

argument made by the first Bush administration in the 1980s,

when it contended that the United States should export sensitive

dual-use equipment to Saddam Hussein in order to build up Iraq

as a counterweight to Iran. U.S. pilots were later killed in Iraq trying to bomb things that U.S. companies had provided. History

shows that such predictions can be dangerous.

Then why choose India for preferential treatment? If it is not because of our need to fight terrorism, and not because of our desire

to reward a faithful ally, what is it? There seems to be only one

answer: India is the biggest market. Secretary of State Rice readily

admits the commercial interest. On April 5 she testified to this

committee that the agreement with India was ‘‘crafted with the private sector firmly in mind.’’ She cited a 13 billion dollar deal by

Boeing; she cited the hope of reactor sales by our nuclear industry;

she cited the opportunity for ‘‘U.S. companies to enter the lucrative

and growing Indian market.’’

She might also have mentioned India’s defense market. That

market seems to be the one that is really motivating the deal.

India is shopping for billions of dollars worth of military aircraft,

and the administration is hoping it will buy both the F-16 and the

F-18. According to the American press, officials in the defense industry and the Pentagon are saying that the main effect of the nuclear deal will be to remove India from the ranks of violators of

international norms. And once this change in India’s status occurs,

there will be no impediment to arms exports. The Russian press is

even more explicit. It complains that in addition to ‘‘recognition of

India’s nuclear status by the United States,’’ the nuclear deal

‘‘opened the door to the Indian market for American arms merchants,’’ with the result that Russia may be squeezed out.

Boiled down to the essentials, the message is clear: Export controls are less important to the United States than money. They are

a messy hindrance, ready to be swept aside for trade. But, a decision to put money above export controls is precisely what we don’t

want China and Russia to do when they sell to Iran. We don’t want

China and Russia to tell us that money in their pockets is more

important than stopping Iran’s march toward the bomb. But China

and Russia are now hearing the new commercial message coming

from America, and they are not stupid. If they see that we are willing to put money above security, and willing to take the risk that

dangerous exports won’t come back to bite us, they will do the

same. Everyone’s security will diminish as a result.

Thus, this legislation has clear costs to our security. Are these

outweighed by the benefits? What are the benefits?

49

The principal benefit cited by the administration is that India

will place 14 of its 22 power reactors under inspection. But, as others have pointed out, this leaves a great number of reactors off-limits. In fact, the reactors that are off-limits will be sufficient to

produce enough plutonium for dozens of nuclear weapons per year.

This is more than India will ever need. India is not restricting its

nuclear weapon production in any way. Therefore, there is no ‘‘nonproliferation benefit’’ from such a step.

In effect, India’s offer is like that of a counterfeiter with a 22

room house, who offers to let the police look into 14 rooms as long

as they stay out of all the others. Why would any policeman in his

right mind accept such an offer, or want to inspect one of the 14

rooms? It would be the only place where he was sure not to find

anything. It would waste his time, just as it will waste the time

of international inspectors to look at India’s 14 declared reactors.

Everyone knows that it will be the eight undeclared ones that

make the bombs. India, in fact, appears to have calculated the

number of reactors to put off-limits according to how much plutonium they will make. India has assured itself that the resulting

amount of plutonium will be enough to allow it to continue making

bombs at an unfettered pace.

This point about wasting inspection time may seem minor, but

it isn’t. The International Atomic Energy Agency has a limited

number of inspectors. They are already having trouble meeting

their responsibilities. To send them to India on a fool’s errand will

mean that they won’t be going to places like Iran, where something

may really be amiss. Unless the Agency’s budget is increased to

meet the new burden in India, the inspection of India’s declared reactors will produce a net loss for the world’s non-proliferation effort.

The other major benefit that the administration cites is that

India may buy American reactors. Such a possibility exists, but is

remote. The precedent is our experience with China. Some members of the committee may remember the intense debate in Congress over the U.S. nuclear cooperation agreement with China in

the 1980’s. At the time, our industry was citing the large number

of reactors that China was planning to buy, and predicting that

many of the orders would come to us. How many American reactors

did China actually buy? The answer is: none. Exactly zero. The

main effect of China’s agreement with us was to increase the number of vendors who were in competition. The result was to drive the

price down for the Chinese reactor buyers. That was good for

China, but did nothing for us. The Chinese import orders went to

France, Russia and Canada.

We are not likely to fare any better this time. New Delhi is already building a string of reactors on its own that are less expensive to put up than ours. And if India wants to import reactors, it

can turn to the Russians, who will charge less money and attach

fewer conditions, and who are already ahead of us in the Indian

market. It can also turn to the French or even perhaps the Canadians. All of these countries will compete with us if we sell to

India. The chance that we will defeat this competition is slim.

The administration also argues that India has a great need for

nuclear power to meet its electricity demand. This too is farVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00055 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
50

fetched. India has been generating electricity with nuclear reactors

for more than 40 years. Yet, reactors supply only about 2 percent

to 3 percent of its electricity today. If reactors are so vital to India’s

energy needs, why hasn’t India built more? The answer is that reactors have not turned out to be as safe, or as clean, or—most important—as economical as originally thought. Nuclear power has

been virtually insignificant in India’s energy mix in the past, and

will be no more important in the future. It is worth noting that the

United States hasn’t ordered a new reactor for about thirty years.

Why do we expect India to buy American reactors when even we

aren’t buying them?

I would also like to comment on the effect that the administration’s new policy will have on missile proliferation. President Bush

and Indian Prime Minister Manmohan Singh agreed to cooperate

in ‘‘space exploration,’’ including ‘‘satellite navigation and launch.’’

This language is broad enough to allow missile-useable components

and technology to be exported. The United States seem entirely

ready to permit such sales. The U.S. Commerce Department recently dropped restraints on American exports of missile-related

equipment to three subsidiaries of the Indian Space Research Organization, despite the fact that all three are active in Indian missile development. This appears to be only a first step in a general

loosening of U.S. missile export controls for India.

It is difficult to predict where this will lead. One cannot help a

country like India build better space launchers without helping it

build better missiles. Our experience with China is again the precedent. In the 1990’s China got crucial American help in rocket design, guidance, launch operation, and payload integration, all of

which were directly useable in making intercontinental ballistic

missiles. The help came from American companies that were supposed to be engaged only in a peaceful space effort.

India will be no different. India, in fact, is the first country to

develop a long-range nuclear missile from a civilian space-launch

program. India’s Agni missile, tested in 1989, was built by using

the design of the American ‘‘Scout’’ space rocket. India imported

the blueprints from NASA under the cover of peaceful space cooperation.

India has every intention of building nuclear missiles that will

reach the United States. For some years, India has been working

to develop a nuclear submarine, which will be able to threaten

every coastal city in the world with a nuclear payload. India has

also been working on an intercontinental ballistic missile, known

as the Surya, which will fly much farther than any target in China.

Two questions come to mind. Why should India want to reach such

targets? And does the United States really want to make it easier

for India to succeed?

The final point I would like to make has to do with the power

of Congress. That power will be greatly reduced if the administration’s legislation passes.

The important question to ask about the power of Congress is

this: Why is this bill necessary? What is wrong with present U.S.

law?

Under the present Atomic Energy Act, the president could make

an agreement tomorrow for nuclear cooperation with India. All the

51

president has to do is submit to Congress what is known as an ‘‘exempt’’ agreement—that is, an agreement that does not satisfy the

Act’s present criteria for nuclear cooperation.

India does not satisfy the criteria because it has refused to put

all of its nuclear material under international inspection and is, in

fact, running a secret nuclear weapon program. That is why the

president must ‘‘exempt’’ the agreement before submitting it to

Congress. After such a submission, Congress must adopt a joint

resolution saying that it favors the agreement. If Congress disagrees, or does not act, the agreement does not go into effect.

The president must meet a high standard to justify the exemption. He must find that holding India to the present criteria ‘‘would

be seriously prejudicial to the achievement of United States nonproliferation objectives’’ or that it would ‘‘otherwise jeopardize the

common defense and security.’’ He must also persuade Congress

that he is right, because Congress must take action for the agreement to operate.

Why hasn’t the president taken this course of action? Apparently,

because he cannot meet the standard. He cannot find that it

‘‘would be seriously prejudicial to the achievement of United States

non-proliferation objectives’’ to make India meet the existing criteria. To the contrary, it would advance U.S. non-proliferation objectives if India met the criteria, because India would be giving up

its bomb program and putting its fissile material under international inspection. That would be a clear gain for non-proliferation instead of a loss.

Because the administration cannot meet the present standard,

the administration has asked Congress to lower it. India would

only have to meet a list of weaker criteria that the administration

is already confident India can comply with.

But the administration has not been content to stop there. It also

wants to shift the burden of proof. Under the new legislation, the

burden of proof would shift to Congress. Instead of having to convince Congress to act after submitting an ‘‘exempt’’ agreement, the

agreement would take effect automatically after 90 days unless

Congress voted affirmatively to block it. Any such vote could be vetoed, so Congress would have to muster a 2/3 majority in both

houses in order to have its view prevail. That is in direct contradiction to present law, under which an exempted agreement would

have to be affirmatively agreed to by a joint resolution.

Thus, the effect of the bill is twofold: it makes it easier for the

president to exempt an agreement, and it makes it harder for Congress to prevent an exempted agreement from taking effect. If Congress wishes to preserve its existing power, it could require that an

exempted agreement still be reviewed under the present process.

The administration has not advanced any persuasive reason why

the process of Congressional review should be changed.

Preserving the existing process would have several advantages.

Congress would have more than 90 days to study the agreement;

Congress would not have to muster a veto-proof majority to block

the agreement, or attach conditions to it; and Congress would be

able to see the actual agreement before taking a vote.

Under the new legislation, Congress is being asked to lower the

standards for nuclear cooperation and to shift the burden of proof

52

before any agreement with India has been reached. Congress is

being asked to vote without knowing what kind of inspections India

will eventually agree to, without knowing whether India will really

improve its own export controls, and without knowing whether India’s plan for separating its civilian from its military nuclear facilities is ‘‘credible,’’ as the new criteria require. Congress would be

buying a pig in a poke. It would be giving the administration carte

blanche authority to make an agreement that, because of Congress’

reduced power of review, there would be little opportunity to

change.

(53)

PREPARED STATEMENT OF

DR. STEPHEN P. COHEN

SENIOR FELLOW, THE BROOKINGS INSTITUTION

BEFORE THE

SENATE COMMITTEE ON FOREIGN RELATIONS

WEDNESDAY, APRIL 26, 2006

Mr. Chairman and members of the committee, thank you for the

opportunity to share my knowledge of South Asian security, nonproliferation and arms control issues as you grapple with this important initiative. On balance, the initiative should be welcomed. I

have argued in print for a non-proliferation half-way house since

1990—an admittedly imperfect response to an imperfect situation,

but far better than the status quo. By minor modifications in the

proposed legislation and changes in American policy the nuclear cooperation agreement could be still further improved.

I am a signatory of a March 10 letter backing the initiative. That

letter argues that the agreement enhances American strategic interests, and if properly implemented, it will advance, not retard,

American non-proliferation objectives. We also argue that the initiative will help India move to an energy strategy that makes it

less dependant on imported oil and that it will positively address

our global environmental concerns.

I was resident in India during many of the major Indian debates

over its nuclear weapons policy. In 1964–65 it debated its response

to the Chinese nuclear test at Lop Nor; in 1967-68 it debated

whether or not to sign the NPT, and in 1974, after its phony

‘‘peaceful nuclear explosion,’’ India debated whether to weaponize.

In the late 1980s there was a major debate over the proper response to evidence of a Chinese-assisted Pakistani nuclear weapons

program. The Rajiv Gandhi ‘‘Action Plan’’ of 1988 was in part a

last-minute attempt to forestall a response-in-kind to Pakistan’s

program; in the early 1990s Indians grappled with the highly publicized American effort to cap, roll back, and eliminate its nuclear

weapons program and that of Pakistan. More recently, I spent a

month in New Delhi observing the Indian debate over the BushManmohan Singh initiative.

There are two major conclusions to draw from this forty-year history:

First, in most of these cases India was responding to nuclear developments elsewhere. It’s strategic elite was

sharply divide as to the utility and morality of nuclear

54

weapons, and until the 1998 tests India’s policy was one

of maintaining an ‘‘option’’ or a ‘‘recessed’’ (i.e. unannounced) deterrent. As opponents of this agreement have

noted, India simply lied about its small weapons program

and it certainly violated the spirit and the letter of agreements reached with foreign governments concerning the

peaceful use of nuclear assistance. For that India has been

subjected to thirty years’ of sanctions.

Second, in all of these debates the military, and purely

military calculations, have been notably absent. The Indian nuclear program was nurtured by a small enclave of

scientists and bureaucrats who were largely responsive,

not pro-active in their thinking. As George Tanham wrote,

Indian strategic thought is notable by its lack of interest

in military things. There was and remains a curious blend

of extravagant idealism (epitomized in the many plans for

global nuclear disarmament generated in India over the

years) and Kautilyan-Machiavellian realism (epitomized by

the secrecy that shrouded the covert weapons program).

It is my judgment that this initiative need not trigger an arms

race with Pakistan, and it is certainly not a green light to India

to build a thousand or more nuclear weapons. It does provide the

United States with an opportunity to work with India to help prevent a broader nuclear arms race, something that is certainly not

in the interest of India, Pakistan, China, or America.

Therefore, I would propose the following steps:

First, The agreement with India should eventually be

folded into legislation that would develop criteria that

would allow other states to enter such a nuclear half-way

house. This half-way house would provide civilian nuclear

assistance in exchange for impeccable horizontal non-proliferation record. Right now India seems to meet most reasonable tests, as does Israel, but Pakistan and North

Korea would not.

Second, the administration should undertake an initiative that would constrain vertical proliferation via a nuclear restraint regime in Asia, this initiative would include

India, Pakistan and China. Such a regime need not involve

formal, negotiated limits, which would be very difficult to

achieve, but certainly could be based upon a fissile material cutoff, continued restraint on testing, and limited deployment of weapons. The first two feature in the US-India

nuclear initiative, but they need to be made multilateral,

especially to ward off an arms race between Pakistan and

India. Of course, China’s decision on renewing testing will

be shaped by its response to the United States, and I believe that we can continue our own ban on tests indefinitely without damaging nuclear preparedness.

Third, with this agreement in place New Delhi should

feel less paranoid about discussing its own nuclear capabilities and their interaction with those of other states. As

long as India felt that the U.S. was trying to strip it of its

weapons program Indian officials talked on endlessly

55

about global nuclear disarmament, but they refused to discuss concrete steps that would enhance India’s security

through cooperative agreements with others. Indeed, the

Indians are still reluctant to allow their country to be the

venue for such discussions by non-government organizations, unless they are strictly scripted. Under the auspices

of the new Indo-U.S. Agreement on Science and Technology the U.S. should assist India in setting up a center

to study ‘‘best practices’’ gleaned from the American and

Russian/Soviet nuclear and missile experience. We should

also expect that India will eventually join the process of

nuclear arms reduction that began with U.S. and Russian

nuclear cuts; I am disappointed that such a long-term goal

was not even mentioned in the various U.S.-Indian

communique ́s, we do not want to continue down the process of arms reduction only to see some of the new nuclear

weapons states such as India and Pakistan pass us on

their way up.

To summarize, while supporting the agreement I believe that it

should be the initial step in a process of crafting a diplomacy that

addresses wider complex arms control and security concerns, not

just meeting India’s energy needs. America has such concerns in an

area that stretches from Israel to China; this includes at least five

states that have nuclear weapons and two that may be trying to

acquire them. This agreement does much to repair the torn US-Indian strategic tie, it is important in reshaping and revitalizing India’s massive energy shortfall, and it has already been helpful in

our attempt to constrain an Iranian program, but this administration and its successor—with Congress’’ assistance—should regard it

as a beginning, not an end as far as our nonproliferation and strategic interests are concerned.

(57)

Material Relating to the Committee’s November 2, 2005

Hearing, ‘‘U.S.-Indian Nuclear Energy Cooperation: Security and Nonproliferation Implications

RESPONSES TO SENATOR LUGAR’S QUESTIONS TO THE HON. R. NICHOLAS BURNS, UNDER SECRETARY FOR POLITICAL AFFAIRS, AND

THE HON. ROBERT G. JOSEPH, UNDER SECRETARY FOR ARMS CON- TROL AND INTERNATIONAL SECURITY, DEPARTMENT OF STATE, WASHINGTON, DC

The Administration’s Legislative Proposal and the July 18 Joint

Statement

Question. When will the administration present this committee

with legislation regarding nuclear energy cooperation with India?

Answer. We do not intend to ask Congress to take legislative action to facilitate this agreement until the Indian Government takes

certain important steps. We have made it clear to the Indians that

they need to begin to follow through on their commitments, including to present—and begin to implement—a credible and transparent plan for separation of their civilian and military nuclear facilities that is defensible from a nonproliferation standpoint before

we would further seek to adjust our legal frameworks.

We have agreed to work closely with the Indians over the next

several weeks to months on this plan and on other Indian steps

which will allow us to seek changes to our laws. We hope to be in

a position to seek formal legislative relief in the first quarter of

2006.

Question. When do you anticipate that India will have completed

all of the steps it has committed to undertaking in the July 18,

2005, Joint Statement?

Answer. Some of the actions to which India has committed are

ongoing, such as its pledge to continue its moratorium on nuclear

testing and its commitment to refrain from the transfer of enrichment and reprocessing technologies to states that do not already

have them. Others can be completed with additional effort, such as

India’s adherence to the Nuclear Suppliers Group and the Missile

Technology Control Regime. Some of the actions that India must

take are complex, and will take time to complete. There is not yet

an established timetable for the separation of India’s civil and military nuclear infrastructure, for instance. Implementation of the

plan will, as the Joint Statement suggests, take place in a phased

manner. We intend to move expeditiously and will assess progress

on all aspects of the Joint Statement prior to President Bush’s expected trip to India in early 2006. We hope that India will have developed and begun to implement a plan for civil-military separation

58

and also be engaged in substantive discussions with the IAEA by

that time.

Question. In your view, when should Congress act to change U.S.

law? Before or after completion by India of all its undertakings in

the July 18 Joint Statement or after the completion of certain parts

of the Joint Statement?

Answer. Because the Joint Statement will take considerable time

to implement fully, we do not intend to wait until all Indian commitments are fully realized to submit proposed legislation to the

Congress. Rather, once India develops a transparent and credible

civil-military separation plan for its nuclear facilities and programs

and begins to implement it, we will then seek appropriate legislative solutions. Ideally, U.S. law would be properly adjusted before

the Nuclear Supplies Group Guidelines are adjusted.

Question. What are the interim forms of legislation being considered by the Department in this area? Will there be a new nuclear

cooperative agreement with India, one for which statutory amendments would be required, or does the administration prefer to create a broad, new authority outside of the current Atomic Energy

Act of 1954 (42 U.S.C. 2011, et seq.) for India?

Answer. In consultation with Congress, our objective is to conclude a new agreement for peaceful nuclear cooperation with India

that satisfies all requirements of section 123(a) of the Atomic Energy Act, except for the requirement that full-scope IAEA safeguards be applied in India. India has agreed to separate its military and civilian nuclear facilities and programs, and to place its

civilian components under IAEA safeguards. The result will not be

‘‘full-scope’’ IAEA safeguards, so the agreement for peaceful nuclear

cooperation will not provide for that; but the agreement will allow

for appropriate controls to help ensure that material or goods provided for civilian purposes remain within the civilian sector. The

administration prefers stand-alone, India-specific legislation, but

could envision alternatives as well. We look forward to continuing

consultations with both the Senate and the House in the coming

weeks.

Question. Could you please provide me with your understanding

of current U.S. law, i.e., which U.S. laws or regulations prohibit exports to India of nuclear and dual-use nuclear items and which

U.S. laws or regulations provide a presumption (of approval or denial) of such exports to India, and which such laws and regulations

would need to be modified to implement the Joint Statement?

Answer. Under Section 123 of the Atomic Energy Act (AEA) of

1954, as amended, an agreement for cooperation between the

United States and India will be required in order for the United

States to engage in major nuclear cooperation (e.g., nuclear material, nuclear facilities, and major nuclear components) with India

as contemplated by the Joint Statement. One of the requirements

is that an agreement for cooperation (outside of the NPT-recognized

five nuclear weapon states) must include full-scope safeguards unless exempted by the President as provided in section 123. An

agreement that has been exempted by the President from one or

more requirements in section 123(a) cannot become effective until

59

Congress adopts, and there is enacted, a joint resolution stating

that Congress favors the agreement. We believe stand-alone legislation offers a preferable long-term solution.

Section 128 of the AEA requires, as one of the export license criteria for significant nuclear exports, that a recipient nonnuclear

weapon state have full-scope safeguards. The AEA’s full-scope safeguards requirement is incorporated in the regulations of the Nuclear Regulatory Commission at 10 CFR § 110.42(a)(6), as one of

the export licensing criteria for exports of nuclear facilities and material. Section 129 of the AEA prohibits significant nuclear cooperation with a nonnuclear weapon state that is found by the President

to have undertaken certain activities, including detonating a nuclear explosive device, or to have engaged ‘‘in activities involving

source or special nuclear material and having direct significance for

the manufacture or acquisition of nuclear explosive devices, and

has failed to take steps which, in the President’s judgment, represent sufficient progress toward terminating such activities.’’ The

Nuclear Regulatory Commission’s regulations at 10 CFR § 110.46

incorporate section 129 of the AEA. Both section 128 and section

129 provide Presidential waiver authority.

With respect to dual use nuclear items under the Export Administration Regulations (EAR), there would be no need to make a regulatory change. Dual-use items are reviewed on a case-by-case

basis. As a matter of policy, Commerce does not approve exports to

unsafeguarded facilities. Moreover, the United States remains committed to not ‘‘in any way’’ assist weapons programs in nonnuclear

weapon states as defined by the NPT.

Question. The Joint Statement commits the United States to ‘‘full

civil nuclear energy cooperation with India.’’ As the United States

has different forms of nuclear energy cooperation with many nations, differing even among NPT Parties, what is the meaning of

this phrase in relation to U.S. law and regulation regarding nuclear commerce with India?

Answer. For the United States, ‘‘full civil nuclear cooperation’’

with India means trade in most civil nuclear technologies, including fuel and reactors. But we do not intend to provide enrichment

or reprocessing technology to India. As the President said in February 2004, ‘‘enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.’’ We

do not currently provide enrichment or reprocessing equipment to

any country.

We will also need to ensure that any cooperation is fully consistent with U.S. obligations under the NPT not to ‘‘in any way’’

assist India’s nuclear weapons program, and with provisions of

U.S. law.

Question. What regulatory changes (beyond those already made

under the Next Steps in Strategic Partnership or NSSP) would

need to be made to implement full civil nuclear energy cooperation

with India?

Answer. Many of the specifics of required regulatory changes to

implement full civil nuclear energy cooperation with India have yet

to be determined by the administration. U.S. regulations that incorporate or reflect statutory language will need to be modified or

60

waived in order to permit civil nuclear cooperation consistent with

the Joint Statement, and will need to be addressed along with

modification or waiver of the related statute. No Department of

Commerce regulatory changes will be required in order to implement full civil nuclear cooperation, except as facilities are put

under IAEA safeguards, they could in principle be removed from

the Entity List.

Question. Presuming Congressional approval of statutory amendments and Nuclear Suppliers Group approval of an exception to its

Guidelines for India, when would the United States Government

begin to approve the export of nuclear items or technical data to

India, and what are those items or technical data likely to be?

Answer. Should the NSG and the Congress approve, in principle,

supply would be feasible when the United States and other potential suppliers assess they can confidently supply to Indian facilities

and remain in compliance with our obligations under the NPT and

NSG. This will occur once IAEA safeguards are put in place and

applied in perpetuity. Further, the separation plan must ensure—

and the safeguards must confirm—that cooperation does not ‘‘in

any way assist’’ in the development or production of nuclear weapons. In this context, nuclear materials in the civil sector must remain within the civil sector. A clear and transparent separation between India’s civil and military facilities is essential. We will be

unable to supply facilities that are not under appropriate safeguards.

We cannot say precisely which nuclear technologies the United

States (or other suppliers) would export to India, except that we

would exclude reprocessing and enrichment technologies from our

list. In our view, once India makes demonstrable progress in implementing key Joint Statement commitments—with the presentation

of a credible, transparent, and defensible separation plan foremost

on the list—we will be ready to engage with our NSG partners in

developing a formal proposal to allow the shipment of Trigger List

items and related technology to properly safeguarded facilities in

India.

Nuclear Suppliers Group Issues

Question. What are the positions of each of the 44 members of

the Nuclear Suppliers Group on the comments and proposals made

by A/S Rocca and A/S Rademaker during their consultations with

NSG members in Vienna, Austria, last October?

Answer. Not every member of the Nuclear Suppliers Group expressed an opinion on the comments made by A/S Rocca and A/S

Rademaker during their consultations with NSG Participants at

the Consultative Group meeting in October. The meeting provided

many NSG partners the first opportunity to consider our proposed

approach to realizing full civil nuclear cooperation without amending the NSG Guidelines, per se.

Of those delegations expressing an opinion, some governments,

including the Czech Republic, France, Russia, and the U.K., expressed support for the proposal; several governments, including

Argentina, China, Greece, Japan, and South Korea, said that their

governments would require further information on implementation,

61

including details of India’s plans for the separation of civilian and

military nuclear facilities, before they could make a decision on the

proposals; and some governments, such as Sweden and Switzerland, expressed initial reservations and indicated a need for further

study.

Question. Could you please furnish the remarks made by Assistant Secretary Rocca and Assistant Secretary Rademaker in Vienna

to the NSG members to the committee?

Answer. Yes. To satisfy standard NSG confidentiality practices,

Assistant Secretary Rocca’s and Assistant Secretary Rademaker’s

statements are reproduced below. These are not intended for open

publication.

Question. Did the remarks made by the U.S. delegation present

specific proposals regarding changes to specific parts of the NSG

Guidelines for Nuclear Exports for India?

Answer. We have not yet tabled any formal proposals. We expressed a preference at the October meeting of the NSG Consultative Group to treat India as an exceptional case in light of its substantial and growing energy needs, its nuclear nonproliferation

record, and the enhanced nonproliferation commitments it has now

undertaken. We also expressed our firm intention that the NSG

maintain its effectiveness, and emphasized that we will not undercut this important nonproliferation policy tool. The U.S. proposal

neither seeks to alter the decisionmaking procedures of the NSG

nor amend the current full-scope safeguards requirement in the

NSG Guidelines.

Question. Has the United States shown proposed changes to NSG

Guidelines to Indian Government officials?

Answer. No. Our discussions with India to date have centered on

implementation of Indian and U.S. commitments rather than on

what the NSG should do.

Question. Will India join the NSG?

Answer. In the 18 July Joint Statement, PM Singh committed

India not to join but to adhere to Nuclear Suppliers Group (NSG)

and Missile Technology Control Regime (MTCR) Guidelines. The

practice of unilateral adherence to the MTCR or NSG is not unique

to India. Unilateral adherents voluntarily abide by the Guidelines

of the regime—as do regime members—but are not formal members, per se. We expect to hold unilateral adherents, such as India,

to the same standards specified in the Guidelines.

Question. Do you anticipate that the NSG will be able to make

a consensus decision on the U.S. proposal(s) regarding India at its

next plenary meeting?

Answer. While we will certainly consider advancing a formal proposal for NSG consideration at the next plenary, the pace and

scope of India’s implementation will help determine the specific

timing. Should its actions, and our ongoing consultations with NSG

partners support it, we may be in a position to seek agreement on

a formal proposal at the 2006 plenary session, expected in the May/

June timeframe.

62

INPA Sanctions

Question. On September 23, 2004, the administration sanctioned

two Indian scientists for their activities in Iran under the authority

of the Iran Nonproliferation Act of 2000 (P.L. 106–178, or INPA).

• Has the administration considered other sanctions against Indian entities or persons under INPA or any other relevant U.S.

law or executive order since last September?

Answer. While we believe India has a solid record overall of ensuring that its nuclear-related expertise and technologies do not

pose a proliferation risk, we continue to review information and

take action to implement U.S. law as appropriate. In an unclassified response, it would not be appropriate to comment on the consideration of any other sanctions cases due to intelligence sensitivities that would surround any such case. However, if additional details are required, we could provide a classified response separately.

• What was the reaction of the Indian Government to the INPA

sanctions last year?

Answer. In the context of our ongoing dialog with India, we informed the Indian Government when sanctions were imposed. At

that time, they expressed serious concerns, and we discussed the

sanctions cases as part of the dialog. The Indian Government has

made clear to us its commitment to close any loopholes and ensure

that its entities are not a proliferation source of sensitive technologies in the future. Among recent steps, India has improved its

export control legislation and has harmonized its national control

list with the Nuclear Suppliers Group Guidelines.

• What steps has India taken to prevent Indian interactions with

Iranian entities or persons closely involved with Iran’s atomic

energy activities?

Answer. We cannot comment in unclassified channels on specific

Indian actions, but would be able to discuss this further in a classified setting.

We believe India has a solid record overall of ensuring that its

nuclear-related expertise and technologies do not pose a proliferation risk, and we have an ongoing dialog with India on proliferation

issues. India has clearly demonstrated over the past several years

its desire to work with the United States and the international

community to fight the spread of sensitive nuclear technologies.

As part of an effort launched with India during the administration’s first term—the Next Steps in Strategic Partnership—India

took a number of significant steps to strengthen export controls

and to ensure that Indian companies would not be a source of future proliferation. Not only did India pledge to bring its export control laws, regulations, and enforcement practices in line with modern export control standards, but also passed an extensive export

control law and issued an upgraded national control list that will

help it achieve this goal.

Other measures were also instituted as a part of the NSSP process, which included India permitting U.S. Government end-use

verifications and agreement to increase bilateral and multilateral

cooperation on nonproliferation.

63

In addition, India has become a party to the Convention on the

Physical Protection of Nuclear Material and has taken significant

steps toward meeting its obligations under UNSCR 1540.

The additional nonproliferation commitments India made as part

of the Joint Statement go even further and, once implemented, will

bring it into closer conformity with international nuclear nonproliferation standards and practices.

In our view, it is clear that India agrees that Iran’s pursuit of

a full nuclear fuel cycle makes no sense from an economic or energy-security standpoint. India has called on Iran to return to negotiations with the EU–3 aimed at ending Iran’s pursuit of a nuclear

weapons capability in exchange for expanded cooperation from Europe and others in the field of peaceful nuclear energy, as well as

economic, commercial, political, and security incentives. India has

also called on Iran to cooperate fully with the IAEA’s ongoing investigations, and to resume a suspension of all enrichment-related

and reprocessing activities as a way of building confidence. We welcomed India’s decision to join 21 other IAEA Board members in

voting to adopt the September 24 resolution that found Iran in

noncompliance with its safeguards obligations. That outcome demonstrated to Iran that it is not just the United States and other

Western countries that have concerns about Iran’s nuclear activities, but the entire international community. India has offered full

support to the EU–3’s efforts to seek an end to Iran’s nuclear weapons ambitions.

India and Iran

Question. India’s vote in favor of IAEA Board of Governors (BOG)

Resolution GOV/2005/77 was seen by some as a departure from its

traditional siding with developing countries in multilateral fora.

Prior to the vote, it had been my understanding that the goal of

the United States and the EU–3 at that BOG meeting was to report Iran’s noncompliance to the U.N. Security Council.

Indian officials have taken credit for preventing such a report by

supporting language that found Iran’s noncompliance ‘‘within the

competence of the Security Council.’’ An earlier Indian Ministry of

External Affairs press release regarding a telephone conversation

between Indian Prime Minister Singh and Iranian President

Ahmadinejad stated that ‘‘India supports the resolution of all

issues through discussion and consensus in the IAEA.’’

• What were the reasons India did not support reporting Iranian

noncompliance to the Security Council at the last meeting of

the BOG?

Answer. India voted for a resolution that requires a report to the

United Nations Security Council (UNSC) and finds Iran in noncompliance with its NPT safeguards obligations under Article XII.C

of the IAEA Statute. However, the timing and content of this report to the UNSC are still to be determined.

• Under what circumstances would India support reporting Iranian noncompliance to the Security Council?

Answer. In its support for IAEA BOG Resolution GOV/2005/77,

India endorsed sending a report to the Security Council. The contents of the report and the timing of transmitting the report are

64

unclear at this point. In our view, it would not be useful to speculate further on this hypothetical question.

• Is it the Administration’s position that Iran’s noncompliance

should be reported to the Security Council?

Answer. The United States has long expressed the view that Iran

should be reported to the United Nations Security Council. At the

International Atomic Energy Agency’s (IAEA) Board of Governors

meeting on September 24, India voted—along with the United

States and our EU–3 partners—in favor of a resolution that requires a report to the United Nations Security Council and finds

Iran in noncompliance with its NPT safeguards obligations under

Article XII.C of the IAEA Statute. In addition, for the first time,

the IAEA Board concluded with this resolution that Iran’s pattern

of deception and denial, continued lack of cooperation with the

IAEA, and continued pursuit of nuclear fuel cycle capabilities in defiance of the international community, is a matter that falls within

the competence of the United Nations Security Council, under Article III.B.4 of the IAEA Statute.

• Does the administration consider Iran’s July–August 2005 resumption of uranium conversion activities at UCF-Isfahan to

be a breach of its suspension of fuel-cycle activities agreed to

with the EU–3?

Answer. Yes. Under the November 2004 Paris Agreement, Iran

agreed ‘‘on a voluntary basis, to continue and extend its suspension

to include all enrichment related and reprocessing activities, and

specifically: The manufacture and import of gas centrifuges and

their components; the assembly, installation, testing or operation of

gas centrifuges; work to undertake any plutonium separation, or to

construct or operate any plutonium separation installation; and all

tests or production at any uranium conversion installation.’’ Iran’s

uranium conversion activities represent a breach of its commitments under the Paris Agreement with the EU–3 and defy the September 24 IAEA Board resolution, which called on Iran to suspend

all enrichment-related activity including uranium conversion.

• Does the Indian Government consider Iran’s July–August 2005

resumption of uranium conversion activities at UCF-Isfahan to

be a breach of its suspension of fuel-cycle activities agreed to

with the EU–3?

Answer. We do not know whether India considers Iran in breach

of the Paris agreement, an agreement between Iran and the EU–

3. Certainly, the EU–3 considers Iran in breach.

Question.I understand that India has a formal defense cooperation agreement with Iran. Has the Department been provided with

a copy of that Agreement, and if so, could you please furnish it to

this committee?

Answer. We do not know of a formal defense cooperation agreement between Iran and India. A Memorandum of Understanding

between the Government of the Republic of India and the Government of the Islamic Republic of Iran on Road Map to Strategic Cooperation, was signed on January 23, 2003, in New Delhi by the

previous administrations in both countries. According to the Indian

Ministry of External Affairs, this MOU set out, among other

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things, ‘‘to agree to explore opportunities for cooperation in defense

in agreed areas, including training and exchange of visits.’’

Question. Public reports in late 2004 suggested that India was

considering the sale to Iran of an advanced radar system known as

‘‘Super Fledermaus,’’ a system capable of detecting low-flying objects such as the unmanned aerial vehicles (UAVs) the United

States frequently uses to conduct surveillance operations. The

radar system is produced by Bharat Electronics Limited (BEL)

under license from Ericsson Radar Electronics, a U.S. firm.

(a) Has India decided not to proceed with this sale?

(b) Do you know of other significant defense equipment sales to

Iran being considered by India?

Answer.

(a) We understand that the sale of the Super Fledermaus system

has not occurred.

(b) We do not know of other significant defense equipment sales

to Iran being considered by India.

Interaction with Other Nonproliferation Policies and Countries

Question. Could you please explain how the policy the administration adopted in the Joint Statement is consistent with other administration policies and statements regarding the ongoing crises

of noncompliance in North Korea and Iran?

Answer. The Joint Statement represents a carefully tailored approach that helps solve a real-world nonproliferation issue: How to

integrate the world’s largest democracy and rising 21st power into

the nonproliferation mainstream.

We need to adjust our approaches to take into account the conditions that exist, so that we can achieve our nonproliferation objectives. This has been a premise of administration policy since the

outset of President Bush’s first term, in which he established nonand counterproliferation as top national security priorities. Recognizing that traditional nonproliferation measures were essential

but no longer sufficient, the President has established new concepts

and new capabilities for countering WMD proliferation by hostile

states and terrorists.

There is no comparison between India’s nonproliferation history

and energy needs, and the compliance violations incurred by Iran

and North Korea.

Our position on Iran’s nuclear program is well known and is unrelated to our increasing cooperation with India. We do not want

to see any additional states developing nuclear weapons, whether

Iran, North Korea, or others. Iran’s compliance violations are a national security concern to the United States and many of its international partners—not just the EU–3. Indeed, India’s September

vote in the IAEA Board of Governors which found Iran in noncompliance with its nuclear nonproliferation obligations, demonstrated India’s coming of age as a partner in global nonproliferation efforts.

Further, our understanding with India should not affect the SixParty Talks in any way. India has taken a number of steps to deepen its commitment to nonproliferation and did not violate the NPT

in order to pursue its nuclear weapons ambitions since it was not

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a party to the treaty. There can be no comparison of North Korea’s

record with that of India. North Korea has violated its NPT and

IAEA safeguards commitments; it must abandon its nuclear weapons program.

RESPONSES OF UNDER SECRETARY NICHOLAS BURNS TO QUESTIONS

SUBMITTED BY SENATOR LUGAR

The Administration’s Legislative Proposal and the July 18 Joint

Statement

Question. During your testimony before the committee, you

seemed to indicate that the administration would prefer India-specific legislative language rather than country-neutral criteria. What

are the strengths, in your view, of an India-specific exception to

current U.S. law as opposed to a country-neutral exception?

Answer. An India-specific exception would build on the precedent

set by the Brownback II amendment, which created a South Asiaspecific waiver authority for four different statutory sanctions without amending those statutes. An India-specific exception is appropriate to this country-specific initiative and well reflects the need

for tailored, actor-specific strategies to combat WMD. It would confirm that the confluence of India’s solid nuclear nonproliferation

record, enhanced nonproliferation commitments, growing energy

needs and strategic position in the world requires an unique approach. Finally, singling out India through legislation would also

provide assurances to the Indian Government that the United

States intends to develop key aspects of this partnership for the

long-term.

Question. Is it your view that if Congress did not approve provisions for India related to nuclear energy that the U.S.-India relationship would be harmed?

Answer. The initiative to reach civil nuclear cooperation with

India recasts one of the most divisive issues in our relationship,

and is viewed by many in India as a litmus test for our strategic

partnership. If Congress does not approve provisions for India related to nuclear energy, it is likely that the nuclear issue will continue to constrain our diplomatic relationship, as well as our strategic, commercial, defense, and scientific ties, thereby having a

negative impact on many of the bilateral activities mentioned in

the July 18 Joint Statement.

Question. Have Indian officials stated to you that if Congress

does not approve a legislative exception for India from current law

for nuclear commerce that India would either look differently on its

new relationship with the United States or respond negatively to

the lack of congressional action?

Answer. Indian officials have not stated that they will treat the

United States differently if Congress does not take action. They

have, however, expressed concern about achieving extensive advances in the future of U.S.-India relations if either side does not

complete its Joint Statement commitments.

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Question. What does India’s current plan for its nuclear power

sector call for in terms of the types of reactors (heavy- or lightwater reactors) it will seek from foreign providers?

Answer. Because of the current international restrictions on nuclear commerce with India, India’s plan for its nuclear power sector

seeks to provide for a 20-fold increase in nuclear-generated electricity by 2020 without reactors from foreign suppliers. In support

of this objective, India’s Department of Atomic Energy (DAE) has

committed extensive resources to develop a three-stage nuclear fuel

cycle, based on its plentiful domestic thorium reserves, that involves fast-breeder reactors, which could pose proliferation risks.

Moreover, some specialists assess that such an approach would not

prove cost-effective, and there are clear technical challenges to

overcome.

Opening the Indian market to foreign suppliers provides India

with a vast array of new civil nuclear energy options. Access to new

technologies, such as pebble-bed reactors and low-enriched uranium reactors, and participation in the Generation-IV Forum (GIF)

on advanced nuclear energy systems would encourage more viable

and proliferation-resistant alternatives.

Place in the New Relationship

Question. In testimony before the committee, several experts suggested that creating an exception from long-standing U.S. law and

policy, and asking the Nuclear Suppliers Group (NSG) to do the

same with respect to NSG Guidelines, damages U.S. nonproliferation leadership, and that the strategic rationale for the Joint Statement does not provide a basis for such changes.

Why does nuclear energy figure so prominently among the many

ways the United States can forge a new, strategic partnership with

India?

Answer. The initiative to reach civil nuclear cooperation with

India recasts a divisive issue that has for decades constrained our

diplomatic relationship, as well as our strategic, commercial, defense, and scientific ties. In addition to firmly aligning the United

States with a country that shares our democratic values and commitment to freedom, it holds substantial, concrete benefits for the

United States, India, and the global community.

When implemented, all the steps that India pledged on July 18

will strengthen the international nonproliferation regime, and bolster our efforts to prevent the spread of weapons of mass destruction. Commercially, the opening of India’s lucrative and growing

civil nuclear energy market to U.S. firms could provide jobs for

thousands of Americans, and provide India with a vast array of

clean and viable options to meet its skyrocketing energy needs. India’s participation in the International Thermonuclear Experimental Reactor (ITER) program will add significant resources and

critical talent to global efforts to develop fusion as a cheap energy

source program. If India joins the Generation-IV International

Forum (GIF), it could contribute to GIF’s mission to make the next

generation of reactors safer, more efficient and more proliferation

resistant. Finally, these efforts will also help India pursue its ambiVerDate 11-MAY-2000 18:11 May 09, 2006 Jkt 025358 PO 00000 Frm 00073 Fmt 6601 Sfmt 6601 27347.TXT SFRELA2 PsN: SFRELA2
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tious plans for power development and electrification in a more environmentally friendly manner.

RESPONSES OF UNDER SECRETARY ROBERT JOSEPH TO QUESTIONS

SUBMITTED BY SENATOR LUGAR

The Administration’s Legislative Proposal and the July 18 Joint

Statement

Question. In your statement you note that Congress should not

‘‘make the perfect the enemy of the good’’ and that adding any conditions to the eventual changes to law that Congress might make

for India would be a ‘‘deal breaker.’’

• Do you mean that the entire set of things contained in the

Joint Statement, beyond civil nuclear cooperation, would also

be sacrificed if Congress conditioned nuclear commerce with

India on things not detailed in the Joint Statement?

Answer. I testified that, based on our interactions with the Indian Government, we believe that additional conditions such as implementing a moratorium on fissile material production, ratifying

the Comprehensive Test Ban Treaty, and/or joining the NPT as a

nonnuclear weapon state ‘‘would likely be deal breakers.’’

The initiative to reach civil nuclear cooperation with India will

remove one of the most divisive issues in our bilateral relationship.

If the civil nuclear aspects of the Joint Statement are not realized,

we believe that our diplomatic relationship and our strategic, commercial, and scientific ties will remain constrained; many of the bilateral activities delineated in the statement will be adversely affected.

The critical point is that we must resist the temptation to pile

on conditions that will prejudice our ability to realize the important

and long-standing nonproliferation objectives embodied in the Joint

Statement. We assess that additional conditions such as those specified above remain deal breakers for India. We are better off with

India undertaking the nonproliferation commitments to which it

has now agreed than in allowing status quo stalemates to prevail.

Question. Does the administration oppose any additional nonproliferation measures for India beyond those stipulated in the

Joint Statement?

Answer. I testified that, based on our interactions with the Indian Government, we believe that additional conditions such as implementing a moratorium on fissile material production, ratifying

the Comprehensive Test Ban Treaty, and/or joining the NPT as a

nonnuclear weapon state ‘‘would likely be deal breakers.’’

In our ongoing dialogs, we strongly encourage India to take additional steps to strengthen nonproliferation, such as joining PSI and

harmonizing its national control lists with those of the Australia

Group and Wassenaar Arrangement. We have indicated that we

also plan to continue to discuss such issues as a fissile material

cutoff. But we strongly recommend against adding additional conditions to Joint Statement implementation. The Joint Statement

reached by President Bush and Prime Minister Singh is good both

for India and for the United States, and when implemented, offers

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a net gain for global nonproliferation efforts. Rather than add additional conditions or seek to renegotiate the Joint Statement, we believe it would be better to lock in this deal and then seek to achieve

further results as our strategic partnership advances. We believe

that this is a sound arrangement that should be supported because

the commitments India has made, will, when implemented, bring

it into closer alignment with international nuclear nonproliferation

standards and practices and, as such, strengthen the global nonproliferation regime.

Question. Could you please provide me with your views with regard to each of the following items, items which have been proposed as those I might consider including in legislation:

• A requirement that India stop producing fissile materials for

nuclear weapons.

Answer. I testified that, based on our interactions with the Indian Government, we believe that additional conditions such as implementing a moratorium on fissile material production, ratifying

the Comprehensive Test Ban Treaty, and/or joining the NPT as a

nonnuclear weapon state ‘‘would likely be deal breakers.’’

We have sought India’s curtailment of fissile material production

but have not reached agreement on this issue. In our assessment,

insisting on such a cutoff as a precondition for implementing the

Joint Statement would likely be a deal breaker for the Indian Government. We believe that we achieved an important objective, however, by obtaining India’s commitment to designate, separate, and

safeguard its civilian nuclear program. Moreover, the commitment

to work toward the completion of a Fissile Material Cutoff Treaty

(FMCT) is a significant step.

We continue to encourage India, as well as Pakistan, to move in

the direction of a fissile material cap or moratorium as part of our

discussions with both governments. We also are willing to explore

other intermediate options that might serve such an objective.

The Joint Statement does not alter our policy on FMCT. We continue to support immediate commencement of negotiations in the

Conference on Disarmament of a treaty banning production of

fissile material for use in nuclear weapons or other nuclear explosive devices. We welcome India’s support for the FMCT, which

should help to build a consensus to begin those negotiations.

• A requirement that India declare it will not conduct any more

tests of its nuclear weapons.

Answer. I testified that, based on our interactions with the Indian Government, we believe that additional conditions such as implementing a moratorium on fissile material production, ratifying

the Comprehensive Test Ban Treaty, and/or joining the NPT as a

nonnuclear weapon state ‘‘would likely be deal breakers.’’

In principle, making new U.S. law or waivers contingent on India

fulfilling its commitments in the Joint Statement is a sound idea.

As reflected in its pledge in the Joint Statement, India has already

declared that it will maintain its nuclear testing moratorium. Since

to date Pakistan has test-exploded nuclear weapons only in response to Indian nuclear tests, this commitment should help diminish the prospects for future nuclear testing in South Asia.

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• A distinction between India and NPT parties that would provide different treatment in terms of the nuclear exports for

non-NPT parties, i.e., India would be eligible for most U.S. exports except equipment, materials, or technology related to enrichment, reprocessing, and heavy water production.

Answer. I testified that, based on our interactions with the Indian Government, we believe that additional conditions such as implementing a moratorium on fissile material production, ratifying

the Comprehensive Test Ban Treaty, and/or joining the NPT as a

nonnuclear weapon state ‘‘would likely be deal breakers.’’

We do not export enrichment or reprocessing technology to any

state. Therefore, ‘‘full civil nuclear cooperation’’ with India will not

include enrichment or reprocessing technology. We have not yet determined whether such a prohibition would extend to heavy water

production.

• Permitting U.S. nuclear exports only to those Indian facilities,

sites, and locations that are under IAEA safeguards in perpetuity—not to facilities, sites, or locations under voluntary

safeguards arrangements.

Answer. I testified that, based on our interactions with the Indian government, we believe that additional conditions such as implementing a moratorium on fissile material production, ratifying

the Comprehensive Test Ban Treaty, and/or joining the NPT as a

nonnuclear weapon state ‘‘would likely be deal breakers.’’

To ensure that the United States and other potential suppliers

can confidently supply to India and meet our obligations under the

NPT, IAEA safeguards on civil facilities must be applied in perpetuity. We, and other potential suppliers, will be unable to supply

facilities that are not under permanent safeguards.

India’s Violations of U.S. Law

Question. In testimony before the House on October 26, 2005,

Leonard S. Spector, Deputy Director of the Center for Nonproliferation Studies at the Monterey Institute of International Studies,

stated that

India’s misuse of plutonium produced in the Canadiansupplied CIRUS research reactor is not a matter of ancient

history; it is an ongoing offense. The original transgression

took place in the 1970s, when India misused the reactor,

along with U.S.-supplied heavy water that was essential

for the reactor’s operation, in order to produce the plutonium for India’s 1974 nuclear detonation.

• What is the status of India’s violation of its peaceful use undertakings in the 1956 U.S. heavy-water contract, are they ‘‘ongoing’’ or are they, as a result of the termination of U.S.-Indian

nuclear cooperation, no longer operative?

Answer. India used heavy water that the United States provided

under a 1956 Nuclear Regulatory Commission (NRC) contract—

along with Indian and third-country heavy water—as a moderator

for the Canadian-provided CIRUS research reactor, the reactor

India reportedly used to generate plutonium for its weapons program.

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After India detonated a nuclear device in 1974, the U.S. Government examined whether India’s actions were inconsistent with a

clause under the 1956 contract stating that the heavy water would

be used for ‘‘research into and the use of atomic energy for peaceful

purposes.’’ The outcome was that a conclusive answer was not possible due to both the factual uncertainty as to whether U.S.-supplied heavy water contributed to the production of the plutonium

used for the device and the lack of a mutual understanding of scope

of the 1956 contract language.

• Has any of the plutonium from CIRUS that was produced

using U.S.-origin heavy water been incorporated into Indian

nuclear explosive devices or used in any Indian tests of nuclear

explosive devices?

Answer. As noted above, a conclusive answer has not been possible as to whether U.S.-supplied heavy water contributed to the

production of the plutonium used for Indian nuclear explosive devices.

• Will the administration, as a part of the process under the

Joint Statement, obtain from India a full, accurate, and complete account of the disposition of any U.S.-origin heavy water

in India?

Answer. The administration believes the most productive approach is to focus on India’s new commitments under the Joint

Statement. These commitments include, among other things, acceptance of IAEA safeguards (including monitoring and inspections

of its civil nuclear facilities and programs), and agreement to sign

and implement the Additional Protocol, which provides for broadened access to locations and information regarding nuclear and nuclear-related activities.

• Does the Government of India acknowledge that its unauthorized end use of U.S.-origin heavy water supplied for the CIRUS

reactor was a violation of U.S. law?

Answer. Following India’s 1974 detonation of a nuclear device,

the Government of India plainly stated its disagreement with the

United States over the meaning and scope of the clause in the 1956

contract that stipulated that the heavy water would be used for

‘‘research into and the use of atomic energy for peaceful purposes.’’

At the time, the debate on whether India had violated the contract was inconclusive owing to the uncertainty as to whether U.S.-

supplied heavy water contributed to the production of the plutonium used for the 1974 device and the lack of a mutual understanding of scope of the 1956 contract language on ‘‘peaceful purposes.’’

We have since made it clear that we exclude so-called ‘‘peaceful

nuclear explosions’’—and any nuclear explosive activity—from the

scope of peaceful nuclear cooperation.

India has not acknowledged to the United States that it considered that its use of U.S.-supplied heavy water was a violation of

the 1956 contract.

• Does the Government of India acknowledge that its 1974 nuclear weapon test was not a ‘‘peaceful nuclear explosion’’?

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Answer. It is our understanding that it remains the view of the

Indian Government that its test of a nuclear explosive device in

1974 was a ‘‘peaceful nuclear explosion.’’

• If India declares that CIRUS is a peaceful reactor, would any

plutonium produced there need to be removed from those plutonium stocks that India has set aside for weapons and placed

under permanent IAEA safeguards?

Answer. We do not yet have from the Government of India a plan

outlining which of its nuclear facilities will be declared civilian; our

discussions continue.

The details of the safeguards agreement which India has undertaken to negotiate with the IAEA will presumably follow. However,

as most such agreements are not retroactive, we would not expect

the agreement to specify that previously produced material must be

returned to the plant in order to be placed under safeguards. Were

the plant to be placed under safeguards, those safeguards would be

applicable in perpetuity to any material produced by, used by, or

stored in the plant after the effective date of the agreement.

Safeguards Verification and Compliance

Question. Has the Government of India entered into discussions

with International Atomic Energy Agency (IAEA) officials regarding a new declaration of civil nuclear sites, facilities, or locations?

Answer. To our knowledge, the Government of India has not yet

entered into discussions with the IAEA. Such a step might be

viewed as premature, considering that India has not yet developed

a separation plan upon which such a declaration would be based.

We have indicated that such a plan must be credible, transparent,

and defensible from a nonproliferation standpoint.

Question. When will India submit a new declaration to the IAEA

of its civil sites, facilities, or locations that would be subject to safeguards?

Answer. There is no set date. The first step is for India to develop a credible and transparent plan for separating its civil and

military facilities and programs. We hope that such a separation

plan and subsequent declaration to the IAEA of what is to be civilian—as well as initial implementation toward safeguarding its facilities—can be accomplished by early 2006.

Question. What kinds of safeguards will be applied to India’s declared civil sites, facilities, or locations (please specify IAEA Information Circular (INFCIRC) number)?

Answer. Safeguards agreements are modeled after INFCIRC/153

(the NPT safeguards agreement) or INFCIRC/66 (the Agency’s safeguards system predating the NPT). India will not likely sign a safeguards agreement based strictly on INFCIRC/153, as this would require safeguards on India’s nuclear weapons program. NPT-acknowledged nuclear weapon states have so-called ‘‘voluntary’’ safeguards agreements that draw on INFCIRC/153 language, but do

not obligate the IAEA to actually apply safeguards and do allow for

the removal of facilities or material from safeguards. We heard

from other states at the recent NSG meeting that they would not

support a ‘‘voluntary offer’’ arrangement as, in their view, it would

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be tantamount to granting de facto nuclear weapon state status to

India. We have similarly indicated to India that we would not view

such an arrangement as defensible from a nonproliferation standpoint. We, therefore, believe that the logical approach to formulating a safeguards agreement for India is to use INFCIRC/66,

which is currently used at India’s four safeguarded reactors. For

the most part, INFCIRC/66 and INFCIRC/153 agreements result in

very similar technical measures actually applied at nuclear facilities.

Question. Will India allow the safeguards applied to its declared

civil sites, facilities, or locations to be permanent, i.e., that no declared site, facility, or location may be removed from India’s declaration to the IAEA and that the safeguards in place on those declared sites, facilities, or locations are to be in place in perpetuity?

Answer. We do not view a safeguards agreement that would

allow India to withdraw facilities or material from safeguards as

acceptable, and we have informed India of this view. Among other

considerations, we must be assured that safeguards will be applied

in perpetuity, that ‘‘civil’’ material remains in the civil sector, and

that any assistance provided in no way contributes to India’s nuclear weapons program. The safeguards must effectively cover India’s civil nuclear fuel cycle and provide strong assurances to supplier states and the IAEA that material and technology provided or

created through civil cooperation will not be diverted to the military sphere.

Question. Has the administration briefed the IAEA on its discussions of a civil-military split in Indian sites, facilities, or locations,

and if so, when?

Answer. No, we have not briefed the IAEA Secretariat on our

discussions of a civil-military split in Indian sites, facilities, or locations. The IAEA Secretariat will play an essential role in this process, but that role is still in the future, once India has taken certain

key steps and there is a clearer understanding and acceptance of

India’s separation plan.

Question. What are the general ‘‘phases’’ (not dates) that will unfold under the Joint Statement’s terms with respect to India’s separation of its civil and military nuclear facilities, sites, or locations?

Answer. The first step in the process will be for India to produce

a general plan for the separation of its civil and military facilities

and programs. We expect that India will propose a civil-military

separation plan that is credible, transparent, and defensible from

a nonproliferation standpoint. Such a plan would form the basis for

a declaration by India to the IAEA of its civil facilities. It would

also form the basis for the negotiation of a safeguards agreement

between the IAEA and India. Negotiation of an Additional Protocol

would probably proceed in parallel with the negotiation of the basic

safeguards agreement, but this remains to be determined. Upon

completion and entry into force of the safeguards agreement, the

IAEA would begin inspections of Indian nuclear facilities. Based on

the language of the Joint Statement, we expect that it will take

some time to complete full implementation of safeguards at India’s

civil facilities, and thus implementation would occur in a ‘‘phased’’

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manner, based on a sequence identified in the separation plan and

as agreed to with the IAEA and as specified in the safeguards

agreement.

Question. The IAEA, because of budgetary pressures, discontinued inspections in the United States in 1993, largely because

the value of such inspections is of limited utility in states with declared and lawful nuclear weapons programs. At the request of the

U.S. Government, the IAEA resumed inspections in 1994 by applying safeguards to several tons of weapons-usable nuclear material,

which had been declared excess to U.S. national security stockpiles.

The IAEA undertook this effort on the condition that the United

States reimburse the IAEA.

The Joint Statement notes that India will ‘‘assume the same responsibilities and practices and acquire the same benefits and advantages as other leading countries with advanced nuclear technology, such as the United States.’’

• Will India declare a portion of its weapons-useable materials

excess to its defense needs and place them under permanent

IAEA safeguards?

Answer. India has not informed us of whether it views any existing weapons-usable material as ‘‘excess.’’

• Will India reimburse the IAEA for any inspections conducted

in India on safeguarded facilities, sites, locations, and materials?

Answer. To our knowledge, the IAEA and India have not yet discussed whether India will reimburse the IAEA for any inspections

conducted in India on safeguarded facilities, sites, locations, and

materials.

Question. Do you assess that the IAEA currently has the staff,

funding, and necessary information to support safeguards monitoring for India without taking away from inspection and

verification efforts in other countries?

Answer. We recognize that implementing safeguards in India will

entail significant costs that are not currently included in the

IAEA’s budget. We look forward to working with the IAEA and the

Government of India to estimate those costs and to identify how

best to meet them without undercutting inspections/verification efforts in other countries.

Question. Would India permit the IAEA, as a confidence-building

measure, to conduct inspections of its declared facilities, sites, or

locations, and if so, how many such inspections and how many facilities, locations, or sites would be inspected?

Answer. The safeguards agreement that India negotiates with

the IAEA after developing a separation plan will require sustained

IAEA inspections on all Indian civil facilities containing nuclear

material, with frequency to be determined by the IAEA. The Additional Protocol will allow inspections of additional nuclear-related

locations.

Question. Will the Additional Protocol (AP) that India signs be

identical to the Model Additional Protocol (INFCIRC/540)?

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Answer. No. The Model Additional Protocol is structured to accompany a country’s full-scope safeguards agreement. Because India’s safeguards agreement will differ from a full-scope safeguards

agreement, India’s Additional Protocol will differ from the Model as

well.

Question. In the Joint Statement the Indian Prime Minister

states that India commits to ‘‘signing and adhering to an Additional Protocol with respect to civilian nuclear facilities.’’ Does this

mean that India would not ratify and implement its Additional

Protocol?

Answer. No. We expect that India will ratify and implement both

its safeguards agreement and its Additional Protocol.

Question. Is it permissible for any Non-Nuclear Weapon State

(NNWS) under the NPT to sign and adhere to, but not to ratify and

implement, the Additional Protocol?

Answer. While India is not a party to the NPT, nonnuclear weapon states party to the NPT are obliged under the NPT to bring into

force a full-scope safeguards agreement, effectively covering all nuclear material in the state. The NPT does not, however, require

such a party to either sign or bring into force an Additional Protocol, whose provisions strengthen the safeguards agreement beyond what is required by the NPT. The Additional Protocol’s provisions include, for example, requirements to declare information regarding, and to allow access to, locations that do not involve nuclear material. The NPT also does not, unlike the NSG, condition

full scope safeguards as a condition of nuclear supply. Rather the

NPT requires that cooperation does not ‘‘in any way assist’’ any

weapon program in nonnuclear weapon states.

Question. Is it permissible for any Nuclear Weapon State (NWS)

under the NPT to sign and adhere to, but not to ratify and implement, the Additional Protocol?

Answer. Nuclear weapon states parties to the NPT are not required by the NPT to sign any type of safeguards or inspection

agreement, including an Additional Protocol. All such undertakings

by the nuclear weapon states are voluntary.

Question. Will the Additional Protocol that India signs permit it

to exclude the application of safeguards to any facilities, sites, or

locations in India?

Answer. India has not yet negotiated an Additional Protocol with

the IAEA. The Joint Statement indicates that India’s Additional

Protocol will apply to Indian civil nuclear facilities, and we expect

that there will be some language in the Indian Additional Protocol

making its scope consistent with that concept. We believe it is unlikely that India will permit access to its nuclear military facilities

under its Additional Protocol.

Question. When will India sign an AP?

Answer. There is not yet an established timetable for this step.

The actions India committed to, in the Joint Statement, involve

complex issues, and they will take time to implement fully. We

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tive and will assess progress prior to President Bush’s expected trip

to India in early 2006.

Question. What would be the relationship between India’s list of

declared civil sites subject to safeguards and its AP? Are the provisions of its AP binding on its declared civil sites?

Answer. Two types of inspections would presumably occur at civil

facilities in India: Safeguards inspections that would take place at

nuclear facilities containing nuclear material of a defined purity,

and complementary access inspections that would take place at

other facilities, which, with minor exceptions, do not contain such

material. The first type of facilities is declared and inspected as

specified by the safeguards agreement, and the second type is declared and inspected as described by the Additional Protocol. The

two types of facilities are distinct, but we anticipate that both

would be part of an Indian declaration. The requirements on the

state to provide information and access are equally binding in the

two cases.

Question. With regard to the plan that GOI will bring here this

month, and in connection with the principle of ‘‘Transparency’’: If

we are talking about an INFCIRC/66 Rev.2 [safeguards agreement]

(SGA), it would clearly spell out which facilities were covered by

the terms of that SGA. But if India does a voluntary safeguards

agreement, or has some sites covered under a voluntary SGA, or

sites, facilities, and locations colocated with sites that are not covered by the terms of an INFCIRC/66 Rev.2 SGA, then some of the

list of eligible, declared civilian facilities would be considered ‘‘safeguards-confidential’’ not under an INFCIRC/66 Rev.2 SGA nor

made all that transparent. In other words, there would be an

INFCIRC agreement, but no one would have access to the actual

list of sites, facilities, and locations (like our Voluntary Offer SGA).

• Are we prepared to accept a mixed situation in India? Some

sites under VOA-type SGAs and some under INFCIRC/66

Rev.2 SGAs? Does the IAEA hold such a situation with any

other countries?

Answer. Because the IAEA publishes a list of all facilities to

which safeguards are applied, all exporters will be aware of which

facilities in India they can export to. So-called ‘‘voluntary offer’’

agreements are used only by the five NPT-recognized nuclear

weapon states. In general, voluntary arrangements allow the covered state to withdraw facilities and material from safeguards at

will. In our view, a voluntary offer arrangement for India would be

inconsistent with the Joint Statement and would not be defensible

from a nonproliferation standpoint.

• Is the administration looking to accept a cooperation agreement that would already be covered by an existing 66 agreements (i.e., Tarapur), and then let India put additional civilian

facilities on an eligible list?

Answer. Both an Agreement for Peaceful Nuclear Cooperation between the United States and India and a new safeguards agreement between India, the IAEA, and possibly other parties, would

have to be negotiated.

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There is no ‘‘eligible list’’ associated with current Indian safeguards arrangements, which conform to INFCIRC/66. We expect

India ‘‘to place all its civil nuclear facilities under full IAEA safeguards and that includes monitoring and inspections,’’ as Under

Secretary Burns said July 20, 2005. Since a voluntary offer arrangement would not require the IAEA to apply safeguards to facilities on a list of those eligible for safeguards, it would not meet

that standard. Furthermore, in order to provide reasonable assurances to potential suppliers that they are not assisting the Indian

nuclear weapons program, among other things safeguards must be

applied in perpetuity and ‘‘civil’’ nuclear material must remain

civil.

India’s Export Control Laws, Regulations, and Policies

Question. Has the administration undertaken an expert-level

legal analysis of India’s export control laws and regulations?

Answer. Department of State and Commerce lawyers and export

control experts have reviewed India’s Weapons of Mass Destruction

and Their Delivery Systems (Prohibition of Unlawful Activities)

Act, adopted in 2005, consistent with India’s NSSP and Joint Statement commitments. We continue to discuss export control related

issues with the Government of India.

Question. If so, could you please furnish that analysis to this

committee?

Answer. There is today no consolidated analytical document representing an interagency assessment of India’s export control law

and regulations. As always, we stand ready to brief the committee

on the results of our review.

Question. I understand that the State Department sent a number

of questions concerning India’s export control law(s) (what is

termed its ‘‘WMD law’’) to New Delhi some time ago. Has the Government of India answered all of those questions, and could you

please furnish (a) those questions and (b) answers to this committee?

Answer. Given the sensitivities of the diplomatic communications

involved, we cannot provide the information for the record. However, we would be happy to provide the committee with a briefing

on our exchanges with India on this issue. We intend to have follow-on discussions regarding the implementation of the WMD law

within the High Technology Cooperation Group meetings in early

December 2005.

Question. Does Indian law specify anything with regard to the reexport or resale of foreign-origin dual-use equipment?

Answer. As we understand the Indian legislation, export from

India of foreign-origin dual-use equipment exported to India, if of

types covered by India’s own control list and catch-all controls,

would be subject to the same requirements that apply to export of

Indian-origin goods.

Question. What does Indian law specify about the access of either

foreign nationals or dual-nationals to sensitive items exported from

other nations to India?

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Answer. India’s new WMD law deals specifically with the possession, export, reexport, transfer, and other conveyance or trafficking

of WMD and their delivery systems, their components, and related

technology by Indian and foreign nationals. The law, however, does

not address access by foreign nationals or dual nationals to such

items or technology in the course of those individuals’ legitimate

employment in India.

Clause 13(4) of the WMD law seems to address in-country transfers of items to foreigners, but the operation of this provision is not

entirely clear.

Question. Do any foreign nationals or dual-nationals work at or

have access to sites currently subject to IAEA safeguards in India

(Rajasthan 1 & 2 and Tarapur 1 & 2)?

Answer. We do not have sufficient information as to which specific foreign nationals may work or have access to these facilities.

In general, however, IAEA inspectors, who are foreign nationals,

have access to Rajasthan 1 & 2 and Tarapur 1 & 2, since these

sites are subject to IAEA safeguards. The Indians have also granted Nuclear Regulatory Commission (NRC) delegations limited access to those facilities, most recently in February 2005. Additionally, the World Association of Nuclear Operators (WANO) is able

to conduct peer reviews at these sites.

Question. Do any foreign nationals or dual-nationals work at or

have access to the Indian nuclear facilities Kundankulam 1 and 2?

Answer. We do not have sufficient information as to which specific foreign nationals may work or have access to these facilities.

In general, however, Kundankulam 1 & 2 are being constructed

under a contract between India and the Russian Federation, so we

presume that Russian nationals have access to these sites. IAEA

inspectors, who are foreign nationals, will eventually have access

to Kundankulam 1 & 2, once they are placed under IAEA safeguards.

Question. Do any foreign nationals or dual-nationals work at or

have access to the Indian Space Research Organization (ISRO)

Headquarters in Bangalore, India; ISRO Telemetry, Tracking and

Command Network (ISTRAC); ISRO Inertial Systems Unit (IISU),

Thiruvananthapuram; Liquid Propulsion Systems Center; Solid

Propellant Space Booster Plant (SPROB); Space Applications Center (SAC), Ahmadabad; Sriharikota Space Center (SHAR); Vikram

Sarabhai Space Center (VSSC), Thiruvananthapuram?

Answer. We do not have sufficient information as to which, if

any, foreign nationals may work or have access to these facilities.

We stand ready to discuss this and other considerations relating to

these organizations further with the committee in a separate classified forum.

Question. Do any foreign nationals or dual-nationals work at or

have access to the following Indian Department of Atomic Energy

entities: Bhabha Atomic Research Center (BARC); Indira Gandhi

Atomic Research Center (IGCAR); Indian Rare Earths; Nuclear reactors (including power plants) not under International Atomic Energy Agency (IAEA) safeguards, fuel reprocessing and enrichment

79

facilities, heavy water production facilities and their collocated ammonia plants?

Answer. We do not have sufficient information as to which, if

any, foreign nationals may work or have access to these facilities.

We stand ready to discuss this and other considerations relating to

these organizations further with the committee in a separate classified forum.

Question. Does Indian law contain ‘‘catch-all’’ controls on items

not otherwise stipulated in national controls?

Answer. Clause 11 of the 2005 WMD law prohibits export of any

material, equipment, or technology if the exporter knows that the

exported items are intended for use in the design or manufacture

of a biological weapon, chemical weapon, nuclear weapon, or other

nuclear explosive device, or in their missile delivery systems, but

does not specifically refer to transfers, retransfers, items brought

in transit or transshipment. We read Clause 11 of the 2005 WMD

law as a catch-all provision similar to the ‘‘knows’’ portion of the

U.S. catch-all control provisions. Clause 5 of the 2005 WMD law

may provide the equivalent of the ‘‘is informed’’ portion of the U.S.

catch-all controls over exports, reexports, transshipments, and

transits.

Question. Have there been successful prosecutions of entities or

persons brought by the Government of India for violations of its export control laws?

Answer. The Government of India has been actively prosecuting

the Indian entity NEC Engineers Private Ltd.’s cooperation with

Iraq. According to Indian press reports, NEC sent 10 shipments

containing titanium vessels, filters, titanium centrifugal pumps,

atomized and spherical aluminum powder, and titanium anodes to

Iraq. The NEC prosecution is ongoing.

We do not have information on other examples of Indian prosecutions regarding violations of its export control laws. One reason for

this is that, before India passed its WMD law this year, its governmental authority over such export activities was relatively limited.

India’s new WMD law has greatly increased its ability to hold its

entities and individuals accountable for activities that impinge on

nonproliferation practices.

Question. Did India pursue any action (civil or criminal) against

Dr. Y.S.R. Prasad and Dr. C. Surendar after the United States

sanctioned them under the authority of the Iran Nonproliferation

Act of 2000 (P.L. 106–178)?

Answer. We understand that India investigated the activities of

the retired scientists Dr. Y.S.R. Prasad and Dr. C. Surendar after

the United States imposed sanctions on them in September 2004.

As far as we are aware, India did not pursue any civil or criminal

action against Drs. Prasad or Surendar.

Question. Does the United States have any information that Indian entities or persons in the United States have engaged in attempts to falsify necessary bona fides in transactions with U.S. entities or persons?

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1 As found at http://www.exportcontrolblog.com/blog/2005/10/updatedayone4.html. 2 Available at http://wwwc.house.gov/internationalrelations/109/alb102605.pdf.

Answer. Any such activities would be regarded as a law enforcement matter in this country. Any such matters would need to be

addressed to the Department of Justice, Department of Commerce,

and/or the Department of Homeland Security.

Question. In oral remarks made at the Department of Commerce’s annual Bureau of Industry Security (BIS) ‘‘Update’’ Conference recently held in Washington, DC, Steven Goldman, director

of the BIS Office of Nonproliferation and Treaty Compliance, stated

that ‘‘India has modified its approach, has made major commitments, in many respects commitments that exceed those of our

closest allies.’’ 1

Do you concur with this assessment, and if so, how does India

exceed the nonproliferation commitments made by our closest allies, in particular, those who are nuclear weapon states (such as

the United Kingdom) under Article I of the NPT?

Answer. The Department of State agrees that India has made

major commitments which, when implemented, will bring it closer

into conformity with nonproliferation standards and practices.

India has committed to a number of important nonproliferation

steps. Some of these steps exceed NPT requirements, such as India’s export-restraint of enrichment and reprocessing technologies

and its willingness to sign and adhere to an Additional Protocol.

RMP Facility

Question. Do you concur with the assessment of alleged Indian

attempts to illicitly acquire certain dual-use nuclear technology

provided by David Albright during testimony before the House on

October 26, 2005? Which states in relevant part:

Indian nuclear organizations use a system that hires domestic or foreign nonnuclear companies to acquire items

for these nuclear organizations. Such procurement appears

to continue for its secret gas centrifuge enrichment plant

near Mysore. In an attempt to hide its true purpose from

suppliers and others when it started this project in the

1980s, India called the facility the Rare Materials Plant

(RMP) and placed it under Indian Rare Earths (IRE) Ltd,

an Indian Department of Atomic Energy company focused

on mining and refining of minerals. Since the mid-1980s,

IRE has served as a management company for RMP and

appears to be the declared end-user of its procurements of

centrifuge-related equipment and materials.2

Answer. We cannot comment in any detail in unclassified channels on assessments of activities of Indian entities or facilities. We

could discuss further in classified session.

Question. What is the purpose of the RMP facility?

Answer. We cannot comment in any detail in unclassified channels on assessments of activities of Indian entities or facilities. We

could discuss further in classified session.

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3 69 FR 56,693 (2004), revised in 69 FR 58,049 (2004).

Question. The Commerce Department issued revised U.S. regulations for balance of plant exports to certain Indian entities last

September.3 The Indian Department of Atomic Energy entity

called ‘‘Indian Rare Earths’’ is named in those FR notices, but

could you please explain for the record the current regulatory treatment provided to the entity Indian Rare Earths under current law

and regulation?

Answer. The September 22, 2004, regulatory change did not

change the regulatory treatment for Indian Rare Earths. India

Rare Earths is still a listed entity under Commerce regulations, as

it has been since the sanctions were imposed in 1998. Therefore,

under the Export Administration Regulations, exporters need to

apply for licenses to export even uncontrolled commodities to this

end-user.

Proliferation Security Initiative

Question. Why has India not joined the Proliferation Security Initiative (PSI)?

Answer. The United States has encouraged India to join PSI,

given its geographic location along several key routes for proliferation trafficking and its significant operational capabilities in the region. Officials of the Government of India have told us that they

are continuing their internal review of PSI, including an examination of the international and national legal underpinnings for their

possible participation in PSI. We are hopeful that India will soon

endorse PSI, and join the more than 70 countries around the

world—and United Nations Secretary General Kofi Annan—that

have expressed their support for PSI.

Question. What are the views of the Government of India on the

Statement of Interdiction Principles?

Answer. Officials of the Government of India have told us that

they are continuing their internal review of PSI, including an examination of the international and national legal underpinnings for

their possible participation in PSI. We are hopeful that India will

soon endorse the PSI Statement of Interdiction Principles, and join

the more than 70 countries around the world—and United Nations

Secretary General Kofi Annan—that have expressed their support

for PSI.

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