The U.S.-India nuclear deal keeps getting worse for everybody

Last year, Congress passed the Hyde Act, changing thirty-year old U.S. non-proliferation law to make a special exception for India to receive sensitive nuclear technology and material from the United States even though India has repeatedly rejected meaningful nuclear non-proliferation commitments (such as signing the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Comprehensive Test Ban Treaty, or ceasing the production of fissile material for weapons purposes in anticipation, as the five nuclear weapon states parties to the NPT have done). The Hyde Act substantially weakened U.S. non-proliferation law, undermined the NPT, and weakened the global norm against nuclear weapons proliferation.

However, the Hyde Act at least ensured that certain minimal non-proliferation conditions, including providing in section 106 that nuclear trade with India must cease if India conducts a nuclear weapon test. India balked at this condition, making sure that it was not included in the “123 agreement” it negotiated with the United States. Under the 123 agreement, it is unclear what the repercussion of an Indian nuclear test would be and subject to interpretation (which the Indians have been quick to use in their favor), and the requirement to cut off nuclear trade is gone.

Recently, NPR’s Steve Inskeep asked Undersecretary Burns about this blatant concession:

STEVE INSKEEP: Let’s talk about skeptics in the United States. You mentioned that Congress voted in support of this deal, but with a lot of conditions. And I wonder whether the negotiations are meeting those conditions. Here’s one. As I understand it, Congress said they want a deal that states that if India ever conducts another nuclear test, this civilian nuclear cooperation ends. Does your current deal do that?

UNDERSECRETARY NICHOLAS BURNS: Yes it does. We have a clear obligation under the Atomic Energy Act to react if a country like India conducts a nuclear test and the President, and any future President will always have that right under our law.

INSKEEP: Just so that I understand, you’ll have the right you say to end nuclear cooperation. Will the United States be required to end nuclear cooperation if there were another test under the agreement that you’ve negotiated so far?

BURNS: Steve, I believe that under the Atomic Energy Act of 1954, the President has the opportunity, the right, that’s how the law is written, and we have protected that right.

INSKEEP: Which means you wouldn’t necessarily end nuclear cooperation and the Indians seem to think that perhaps you wouldn’t.

BURNS: Oh I think it would be up to the American President at the time. But we have been very clear with the Indians that we do not want them to conduct another nuclear test and there is no indication that they have plans to do that any time soon. But protected the right and Congress was absolutely correct in asking us to do this.

INSKEEP: It sounds like you are right at the edge of what you might be able to get through Congress at some point and still you don’t have quite enough to bring Indians on-board.

BURNS: There are a lot of critics of this agreement but there are more people who support it.

Luckily, not in India, where the opposition parties – including the BJP and the Indian Communist party – have delayed the deal threatening to withdraw from Prime Minister Singh’s coalition if Singh goes forward with negotiations for the US-India deal.

However, despite these concessions, less distasteful to the Indian Communists may be a deal with Russia or France or Canada. Russia is already seeking to build four additional reactors at Kudankulam in India.

By making yet additional and dangerous concessions, the Bush Administration has not only further undermined U.S. law and international nuclear non-proliferation efforts, it has even failed to protect opportunities for American business.

Luckily for nuclear non-proliferation, the deal is still delayed in India.