WASHINGTON, D.C.– Representative Edward J. Markey (D-MA), the Co-Chair of the Bipartisan Nonproliferation Task Force and a senior Member of the House Energy and Commerce Committee, today released two reports from the nonpartisan Congressional Research Service (CRS) analyzing the Bush Administration’s proposed legislation to exempt India from U.S. nuclear nonproliferation law.  The CRS reports, prepared at Rep. Markey’s request, reveal that the Administration’s proposed legislation would make sweeping changes in the Congressional review and approval process for any future nuclear cooperation agreement with India.

“These reports show that the Administration bill really goes far beyond the objective of allowing nuclear cooperation with India despite India’s failure to accept full-scope international safeguards over its nuclear program,” said Rep. Markey, explaining that “The Administration bill proposes to give the White House a blank check to cut any deal it wants with India and makes it virtually impossible for Congress to address the very serious nonproliferation concerns this deal creates.”

The two CRS reports Rep. Markey released today analyze the Administration’s proposed legislation to create an exception for India from certain sections of the Atomic Energy Act of 1954, the law governing nuclear exports from the United States (H.R. 4974 and S. 2429).  CRS found that the proposed legislation “presents three major changes from the existing law,” as follows:

• “First, it would change the approval process from that of an exempted agreement…to that of a routine, or conforming agreement.  This would mean that the U.S.-India nuclear cooperation agreement would automatically enter into force after sitting before Congress for 90 days…It would take a joint resolution of disapproval by Congress, within 90 days, to oppose the agreement.  However, a joint resolution of disapproval would have to be signed by the president and therefore risks a veto, essentially requiring a veto-proof two-thirds majority vote to ensure that the agreement would not enter into force.”
• “Second, in contrast to existing law, the propose legislation contains no provisions for Congress to review or counter the President’s determinations.  It can be argued that Chadha [the Supreme Court decision invalidating legislative vetoes] weakened Congress’ ability substantially to overturn such Presidential determinations, and therefore, that the proposed legislation does not affect Congressional review very much at all.  Congress would always be free to pass new legislation barring nuclear exports.  However, such legislation is subject to the possibility of a presidential veto and thus would require more votes to effectively implement Congress’ intent.”
• “Third, the proposed legislation has the effect of eliminating Congressional review of subsequent nuclear exports.  Administration officials have suggested that the annual review of licenses would be too cumbersome and the process itself has never been implemented.”

In addition, CRS concluded that “It is not clear how the legislation as proposed by the Administration affects meeting other requirements of the Atomic Energy Act.”  CRS noted that under current law, a proposed nuclear cooperation agreement that does not meet any one of 9 nuclear nonproliferation and security criteria set forth under the law must be presented as an exempted agreement.  The proposed Administration bill specifically exempts India from one of these 9 criteria (full scope safeguards), and stipulates that the agreement shall be considered under the regular approval process. This raises the possibility that the Administration could submit an India agreement that failed to meet other criteria – such as the requirement for adequate physical security or prior U.S. consent for retransfers – and still have the agreement considered as a conforming agreement.  As CRS notes, “the proposed legislation does not include specific provisions for Congress to reject the President’s determination that the agreement meets all of the requirements” of existing law. 

CRS also notes that “it is not clear whether, under the proposed legislation, there would be an automatic cutoff of U.S. exports if India” terminated or abrogated international safeguards, materially violated safeguards, materially violated the terms of any future nuclear cooperation agreement with the U.S., or assisted any other non-weapons states in acquiring nuclear explosives or the materials and technologies needed to produce them.

CRS concluded, “In sum, the proposed legislation raises several questions about the basis for presidential determinations on India’s nonproliferation commitments.  The proposed submission of the non-conforming agreement as a conforming agreement for the purposes of expedited approval raises the question of whether Congress will be able to review the agreement thoroughly.  While the legislation appears to facilitate implementation of nuclear cooperation with India, it also appears to reduce congressional reviews, both in substance and process.”

Rep. Markey said, “The Administration is looking to snooker Congress into signing an agreement now, promising that details will follow later. Bush’s India exemption bill will reduce Congress to the role of a passive rubber-stamp with respect to one of the most critical nuclear nonproliferation issues of the last decade. If Congress passes this bill, it will be little more than a potted plant when it comes to nuclear nonproliferation.”

For copies of the CRS report, more information on Rep. Markey’s work to address the proliferation of nuclear weapons or a copy of the resolution Rep. Markey has introduced to express opposition to the proposed India nuclear deal (H. Con. Res. 318), please visit  http://markey.house.gov/

 CRS Report on the Proposed Legislation to Create an Exception from the AEA for India (238.08 KB)
 CRS Report on Legal Issues Regarding INS v. Chadha and the Atomic Energy Act (94.48 KB)