23 House Members Defend Primacy of Hyde Act

WASHINGTON, D.C. – Amid reports that the Bush administration may have capitulated to India’s demands regarding nuclear cooperation, Representative Edward J. Markey (D-MA) sent a letter to President Bush, signed by 22 other members of Congress, reiterating that any inconsistencies between the so-called 123 agreement, U.S. law and the underlying intent and purpose of the Hyde Act will put final congressional approval in doubt. Cosigners on the letter include both members who originally supported and originally opposed nuclear cooperation with India, showing that the desire of Congress to defend the law transcends the differences which existed during the debate over the Hyde Act in 2006.

Rep. Markey said, “The Congress passed the Hyde Act less than a year ago, settling minimum conditions that must be met for nuclear cooperation with India, as well as the non-negotiable restrictions on such cooperation. These conditions and restrictions are not optional nor are they advisory; they were passed by the Congress and signed by the President. If the 123 agreement has been intentionally negotiated to side-step or bypass the law and the will of Congress, final approval for this deal will be jeopardized.”

The members wrote “to underscore the necessity of abiding by the legal boundaries set by Congress” for nuclear cooperation, and to again warn that India’s growing economic and military ties to Iran could imperil congressional approval of the nuclear deal. They remind the president that “The Agreement for Nuclear Cooperation is subject to the approval of Congress, and any inconsistencies between the Agreement and the relevant US laws will call congressional approval deeply into doubt.”

Among the bipartisan cosigners are: Rep. Howard Berman (Senior member of the Foreign Affairs Committee), Rep. Brad Sherman (Chairman of the Terrorism, Nonproliferation, and Trade Subcommittee), Rep. Dan Burton (Senior member of the Foreign Affairs Committee), Rep. Ellen Tauscher (Chairwoman of the Strategic Forces Subcommittee), Rep. Jeff Fortenberry, Rep. Henry Waxman (Chairman of the Oversight and Government Reform Committee), and Rep. Jane Harman (Chairwoman of the Intelligence Subcommittee).

“The President cannot re-write laws during a closed-door negotiation session with a foreign government. Though some of us disagreed during last year’s debate over nuclear cooperation with India, all of us are intent on defending the prerogatives of Congress and reinforcing that the law must be followed without exceptions,” Rep. Markey concluded.

Before any nuclear cooperation can commence between the U.S. and India, Congress must pass final approval of the deal. Among other remaining hurdles, India must negotiate a permanent and unconditional safeguards agreement with the International Atomic Energy Agency, and the U.S. must obtain consensus agreement from the 45 members of the Nuclear Suppliers Group to change their guidelines to allow transfers to India.

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July 25, 2007

The Honorable George W. Bush
President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. President:

As you continue negotiations with India over nuclear cooperation, we write to underscore the necessity of abiding by the legal boundaries set by Congress for any such cooperation.

As you know, an Agreement for Nuclear Cooperation between the United States and India must be fully consistent with the letter and the spirit of the Henry Hyde U.S.-India Peaceful Atomic Energy Cooperation Act of 2006, and the Atomic Energy Act (AEA) of 1954 as amended. The Hyde Act and the AEA set the minimal conditions for nuclear trade with India.

We understand from press reports that there are differences between U.S. and Indian negotiators on several key issues which were addressed by the Hyde Act; the negotiations are therefore defined in large part by the necessity to comply with U.S. law. Among the minimal conditions under U.S. law are:

• No nuclear testing. Current law states that nuclear cooperation shall be terminated, and the U.S. would have the right to demand the return of all material, equipment, and technology, if India again tests a nuclear explosive.
• Permanent, unconditional safeguards. Current law states that the International Atomic Energy Agency safeguards applied to declared Indian materials and facilities must be “in perpetuity in accordance with IAEA standards, principles, and practices.”
• No fuel assurances if agreement is violated. Current law states that the United States should seek to prevent nuclear transfers to any country with which the U.S. has suspended nuclear cooperation. This would be triggered if India violates the Agreement for Nuclear Cooperation and the United States terminates cooperation, for instance if India tests a nuclear explosive.
• Reprocessing and Enrichment Prohibitions. Current law prohibits the transfer of sensitive nuclear technology to India, including uranium enrichment, plutonium separation, and heavy water production-related equipment and technology except under certain narrow circumstances. Congress also preserved the requirement for U.S. prior consent for the reprocessing or enrichment of U.S. origin nuclear material. As you correctly stated on February 11, 2004: “Enrichment and reprocessing are not necessary for nations seeking to harness nuclear energy for peaceful purposes.”
• Cooperation shall not assist weapons program. Current law states that no U.S. cooperation shall directly or indirectly assist India’s nuclear weapons program.

Article I. Section 8 of the United States Constitution provides the Congress with the sole authority to regulate foreign commerce. Through the AEA, the Congress has delegated the authority to negotiate international agreements concerning nuclear trade to the Executive, subject to certain restrictions. The Agreement for Nuclear Cooperation is subject to the approval of Congress, and any inconsistencies between the Agreement and the relevant US laws will call congressional approval deeply into doubt.

In addition, our concern over India’s ties to Iran have grown more acute with the formation this spring of a Joint Defense Working Group between the two countries. India’s deepening military-to-military relationship with Iran, even as Iran has continued to develop nuclear technology in defiance of repeated United Nations Security Council sanctions resolutions, places congressional approval of the Agreement for Nuclear Cooperation in jeopardy.

Sincerely,

Edward J. Markey
Howard Berman
Brad Sherman        
Ellen Tauscher
Dan Burton
Henry Waxman
Jane Harman        
Jeff Fortenberry
Adam Schiff            
Rick Larsen
James Langevin      
Mark Udall
Barbara Lee           
Michael Capuano
James McGovern    
Rush Holt
Doris Matsui           
Raul Grijalva
Peter Defazio         
Chaka Fattah
Rosa DeLauro
Lynn Woolsey
Sam Farr

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