Letter to President Bush from Reps. Edward J. Markey, and other in Agreement

Letter to President Bush from Reps. 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, July 25, 2007, underscoring the necessity of abiding by the legal boundaries set by Congress for any cooperation as the United States and India continued negotiations.

Here is the text of the letter:

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