Bush Agrees to Provide Nuclear Assistance to India:  Will Congress Approve?
By George Bunn
Sept. 19, 2005

President Bush and Indian Prime Minister Singh issued a joint statement in July of 2005 which called  for a return to U.S.- Indian cooperation in peaceful nuclear matters. This cooperation had ended in the 1970s after India conducted a nuclear test, allegedly for  “peaceful purposes.”  Starting in1964, and based in part on technology and equipment provided for peaceful purposes by the United States, Indian scientists had secretly learned how to create nuclear explosives.1  As a  result, India declined to join the nuclear Non-Proliferation Treaty of 1968 (NPT) which would have prohibited it from testing or acquiring nuclear explosives. 2  Later, in 1974, India exploded a nuclear device, which it said was “for peaceful purposes.” 3 

An adverse U.S. reaction to the 1974 Indian test helped produce amendments to the U.S. Atomic Energy Act in 1978.  These require a non-nuclear-weapon  state that receives U.S. nuclear assistance to guaranty that the assistance will not be used to make  a nuclear explosive device.  The statute defines “nuclear-weapon state” to include only the five nuclear-weapon states of 1967 (Britain, China, France, Russia and the United States).4 These are the five permitted by the NPT to have nuclear weapons.  Thus, if the 1978 statute is to be followed today,  India must be treated as a non-nuclear-weapon state, and the strict export licensing procedures and requirements for non-nuclear-weapon  states must  be applied (including the submission of a proposed agreement to Congress which can disapprove it or do nothing -- in which case the agreement can go into effect).

Could  President Bush authorize nuclear exports to India if this procedure was followed and his decision was submitted for review by Congress for a 60-day period of continuous session, as the statute requires?   The Bush-Singh joint statement, not yet in the form of an agreement to be submitted to Congress, calls for the United States to provide important U.S. nuclear exports to India, something that has not happened since the Indian test of 1974 because of U.S. anger produced by the test which produced the 1978 statute.  Even if Congress accepted India as a non-nuclear-weapon state for U.S. export purposes as the1978 statute requires, would the exemption advance U.S. nonproliferation policy as the statute also requires?5

In their talks, President Bush promised Prime Minister Singh that he would seek “agreement from Congress to adjust U.S. laws and policies” to permit the changed nuclear relationship with India.6  Undersecretary of State Nicholas Burns said later that “special approval from the U.S. Congress” will be required.7

The president, he said,  promised nuclear cooperation with India, “a responsible state with advanced nuclear technology,” so that it could “acquire the same benefits and advantages as other such states.”8  This seems to mean accepting India  as a nuclear-weapon state  though the 1978 statute, still on the books, says otherwise. Whether the “special approval from the U.S. Congress” is expected to be in the form of acceptance of the exports under the existing legislation (under which India would have to be treated as a non-nuclear-weapon state) or in the form of a new statute approving the exports to India, is not clear.  The first step will probably be consultation with important members of Congress.

The next step will probably be to negotiate a formal agreement with India dealing with nuclear cooperation.  Then the formal agreement will have to be authorized by Congress, through  the Atomic Energy Act procedure outlined above, or by enactment of a new statute, or by putting the agreement  in the form of a treaty for submission to the Senate for a two-thirds vote.

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