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N-deal: US lawmaker's salvo was not expected this early

Aziz Haniffa in Washington, DC | August 08, 2008 09:20 IST

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It was a salvo that none in the Indian-American community and US business who were mobilising to push through the US-India civilian nuclear deal immediately after it reverted to the US Congress once it cleared the Nuclear Suppliers Group hurdle, had expected -- at least not this early.

On August 6, even before the nuclear deal could be reviewed by the NSG -- let alone get its nod -- in more than a hint of the US Congressional opposition that can be expected if it gets to Capitol Hill on time for action during the remainder of this year legislative calendar, opposition surfaced when Congressman Howard Berman, chairman of the House Foreign Affairs Committee, fired off an angry missive to US Secretary of State Condoleezza Rice [Images] about his angst over the administration's efforts to seek an exemption for India from the NSG that is inconsistent with US law.

He also strongly suggested to her that the agreement be put off till next year, for action by the new Congress.

In his letter, Berman, while declaring at the outset that, "I am a friend of India and a supporter of US-India nuclear cooperation," said, "Yet I find it incomprehensible that the administration apparently intends to seek or accept an exemption from the NSG guidelines for India with few or none of the conditions contained in the Henry J Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006."

Berman, a California Democrat, who was the author of several 'killer amendments' to the enabling Hyde Act when it was debated and voted on the floor in 2006 -- all of which were defeated -- warned Rice that "such an exemption would be inconsistent with US law, place American firms at a severe competitive disadvantage, and undermine critical US nonproliferation objectives."

"It would also jeopardise Congressional support for nuclear cooperation with India, this year and in the future," he added.

Swadesh Chatterjee, the point man and key organiser of the US-India Friendship Council -- a coalition of the Indian-American political, specialty and community organisation -- constituted solely to help push through the deal in Congress, which is working in concert with the US-India Business Council under an even larger umbrella known as the Coalition for Partnership with India under the aegis of the US Chamber of Commerce, acknowledged that Berman's letter to Rice "is a very serious matter."

"We are very concerned and my phone has been ringing off the hook after we learned of it," but asserted, "on the other hand, there is a positive part to it -- it really woke us up very quickly, so that we can get our act together and try to move forward, knowing what kind of opposition and resistance we are going to face," he told

"We knew where he (Berman) was coming from, we had our doubts about him, but we didn't know that it would come so early -- and so clearly and so categorically," Chatterjee said.

Some Congressional sources said that Berman's curve ball so early and while Congress was in its summer recess, was sparked off by Indian Atomic Energy Commission Chairman Anil Kakodkar's public demand that the US must deliver a 'clean' and 'unconditional' waiver from the NSG and that India would not compromise on any new conditions to the agreement since it would nullify the safeguards pact cleared by the International Atomic Energy Agency.

Administration sources acknowledged that this was the reason the US ambassador to India had attempted some damage control by imploring India not to talk about an unconditional waiver from the NSG since it would be viewed as 'provocative' even though that's why the US would seek it when the NSG meets on August 21.

This confluence of rapid-fire events was also what administration sources acknowledged would invariably advance the visit of Under Secretary of State for Political Affairs Bill Burns -- who took over from the chief negotiator of the deal on the US side Nicholas Burns who retired from the Foreign Service -- to India.

Burns is expected to be in New Delhi [Images] sometime next week to discuss the final language of the draft of the agreement to be circulated among NSG members and any slight changes of nuance in order to alleviate concerns among some countries in this group, particularly some of the smaller nations who are expected to express concerns and could delay consensus.

One community source, who is also part of the core group of activists who have been in touch with the Congressional leadership including House Speaker Pelosi and has also been briefed by Burns (see interview with Arms Control Association executive director Daryl Kimball), but who didn't want to be identified because of the sensitivity involved particularly at this crucial time, complained that Kakodkar should not have been so public with his demand for a clean and unconditional waiver.

"We all know where Berman was coming from, but his firing this first shot has now put us on the defensive. And we believe that Kakodkar's statement contributed to it and sparked it off," he said. "He should not have made this comment publicly at all. That was not correct. It was a huge mistake. It puts the administration also on a bit of the defensive."

State Department Acting Spokesman Gonzalo Gallegos said on August 7, even while stressing "we believe this is an important programme, we believe that we can get it through this year, (and) we're going to work toward that end," said that the 123 Agreement would not supersede the Hyde Act.

"Obviously, anything that we proceed with will be consistent with the US law," he said, and added, "we're working with Congress to discuss the issues and resolve any outstanding concerns that they may have. We're working through the NSG to obtain their approval by early September, (and) we hope at that time to present the package to our Congress."

Gallegos said, once this is done "we hope that after discussions that they will be able to pass that and we'll be able to proceed with this very important programme."

"We have already spoken with some of Berman's top aides and we will also be sending him letters and e-mails," urging him not to scuttle the deal. "We're telling him that we understand and appreciate his concerns and we hope that the State Department will address his concerns, but that if the agreement is put off to the next Congress, it will definitely kill the deal," the community source said.

"There will be elections in India," the source said it had been explained to Berman's aides and would also shortly to the lawmaker himself when a community delegation meets with him, "and that the prime minister put his political credibility on line to become and ally of the United States, and the Left and Mayawati [Images] are waiting even for a pin hole to oust this government and so if this is sent to next year, then this deal is absolutely going to be out of the question."

"We will make all this clear to him again when we meet with him," the source added.

Another source said, however that for all Berman's bluster, "(House) Speaker (Nancy) Pelosi is with us. Although Berman is thinking this way, and although he is the chairman, he is one person in the committee and the other members of the committee are on board and most importantly, we believe the Speaker is on board with us."

Also, according to this source, "He may be the chairman, but he is no (Senator Joe) Biden (chairman of the Senate Foreign Relations Committee). He doesn't have the kind of clout and influence that for example Biden has. He doesn't have that kind of power. He doesn't have that kind of gravitas."

"But on the other hand," the source acknowledged, "We cannot start a war with him. We have to work with him. And, the last thing we need are any delaying tactics because we are hoping that if the agreement clears the NSG in late August or early September and comes to Congress when it reconvenes (on September 8), it can be quickly taken up and voted on so that we can have a done deal for the president to sign this year."

Berman in his letter to Rice reminded her that in her appearance "before the Foreign Affairs Committee on February 13 of this year, you assure me that any NSG decision, 'will have to be completely consistent with the obligations of the Hyde Act.'"

"As such," Berman wrote, "I expect you to instruct the US representative to the NSG not to seek or support any exemption for India that does not faithfully reflect all of the Hyde Act conditions."

He said it was his understanding that the current chair of the NSG, Germany [Images], intends to schedule a plenary session of the body in late August to consider an exemption for India, with a second plenary session possible in early September.

"However, even if the members of the NSG were able to achieve consensus on the many complex issues related to the India exemption during those sessions, and the administration were able to submit the India agreement to Congress immediately after we convene on September 8, it is not likely that Congress will have sufficient time to full consider all the issues and details surrounding the agreement, the associated safeguards agreement, and the NSG decision -- and to ascertain their impact on US and global non-proliferation standards -- prior to the target adjournment date of September 26."

Berman made clear to Rice that "any effort to consider the agreement outside of the requirements of current law will be impossible if the administration accepts the NSG exemption that fails to include the Hyde Act conditions."

Thus, in this context, he  informed Rice that he was also "deeply concerned about the potential for a significant time gap between an accelerated NSG decision and Congressional action on the India agreement."

"This would give other countries an unacceptable headstart in securing commercial nuclear contracts with the Indian government, thus placing US firms at a competitive disadvantage," Berman argued.

"If the administration is unwilling to change its position and make clear to the other members of the NSG that it will only accept an exemption that fully conforms to the Hyde Act, then I would urge you in the strongest possible terms to suspend all US efforts to seek an NSG decision on India for the remainder of this administration," he wrote.

"Given the lateness in the Congressional session, it would be better to review these complex matters in the next Congress when they can receive a full and serious examination," Berman suggested.

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