Global Security Newswire

WASHINGTON -- A number of influential U.S. lawmakers are expected to protest an agreement announced last week that would allow India to reprocess spent nuclear fuel purchased from the United States, but the deal is widely expected to proceed (see GSN, March 30).

Political pushback -- potentially from both Democrats and Republicans -- could come in the form of an official letter to U.S. President Barack Obama or Secretary of State Hillary Clinton, according to Capitol Hill sources. Issue experts also would not rule out the possibility of hearings being held on the matter, perhaps most likely in the Senate.

Such reprocessing agreements are relatively rare, having previously been granted by Washington only to its closest allies in Europe and Japan. The technologies used for reprocessing plutonium for civil energy needs are the same as those used for producing nuclear weapons.

The 12-page document -- officially called a "subsequent arrangement" to a landmark civil nuclear agreement penned by India and the United States in 2008 -- is raising the ire of nonproliferation advocates because it seems to represent Washington's blessing for New Delhi to produce more weapon-capable plutonium (see GSN, Oct. 14, 2008).

The new accord also might open the door further to Indian nuclear weapons tests, according to critics. India's most recent test blast was in 1998, and New Delhi has not ruled out further underground explosions despite opposition from Washington and other capitals.

The arrangement with the United States allows India a right to reprocess even if New Delhi takes any number of national security measures that Washington does not support -- including testing a nuclear weapon -- though the text avoids mentioning potential test blasts or spelling out specific scenarios.

Only in the case that reprocessing would "result in a serious threat to [a] party's national security" or "to the physical protection of the facility" or its nuclear materials could Washington demand a temporary suspension, according to the text.

The State Department last week hailed the document as facilitating U.S. industry investment in India's "rapidly expanding civil nuclear energy sector."

U.S. collaboration has been delayed pending Indian guarantees of legal limits on the extent to which companies could be held liable in the event of an accident, while Russian and French deals have proceeded (see GSN, March 16; Feb. 16; and Jan. 15).

Undersecretary of State Ellen Tauscher last week told reporters the arrangement was the result of "a very successful negotiation, a very successful agreement with a very significant partner of the United States."

However, some observers are crying foul because the deal would seem to run counter to the White House objective of reaching a global cessation in the production of nuclear "building blocks" for making weapons. A year ago, President Barack Obama said in a widely noted speech in Prague that "the United States will seek a new treaty that verifiably ends the production of fissile materials intended for use in state nuclear weapons" (see GSN, March 30).

"If we are serious about stopping the spread of these weapons," he said, "then we should put an end to the dedicated production of weapons grade materials that create them."

Still, Obama's team has embraced the 2008 U.S.-Indian pact -- negotiated by the previous administration -- at times invoking former President George W. Bush's view that India has been a responsible steward of its nuclear arsenal and needs help in building its energy sector to fuel a growing economy.

An oft-unstated objective of the deal, according to proponents and detractors alike, is that Washington would like to see India as an economic and military counterbalance to China, whose influence in Asia and around the world is on the rise.

At the same time, critics complain that growth in India's nuclear weapons program could stoke already simmering tensions with nuclear-armed neighbor Pakistan, a linchpin ally to Washington in combating violent extremists.

Once the deal is formally submitted to Congress -- likely by the end of the month -- lawmakers will have 30 days of continuous legislative session to disapprove it, if they so choose. Yet, because the issue is fairly complicated and does not have the highest profile, observers cite long odds for getting the votes needed to disapprove the deal, let alone the two-thirds majority needed to override a presidential veto.

Even so, congressional critics of the reprocessing agreement said Obama might be persuaded to seek changes in the text based on the seriousness of their concerns.

On Capitol Hill, several provisions in the arrangement are drawing criticism, including a move to allow Indian reprocessing at two facilities rather than just one, and limitations on U.S. access to the facilities to ensure they remain secure.

"Some of the provisions in this agreement are stunning," said one congressional source.

"Indians are neuralgic about the idea of Americans visiting any nuclear sites, even civil ones," another aide said. "They mistakenly fear we'll be crawling all over their reactors."

The deal's suspension clause is expected to raise the most hackles.

Critics said the Obama administration will face questions as to why it would agree to deny Washington the ability to threaten the agreement's suspension in the case of an Indian nuclear test, which might not rise to the level of a bona fide "national security threat" under the terms of the new pact.

"This sets a potentially dangerous precedent of distinguishing between nuclear testing that is a serious threat to national security and nuclear testing that is not," said Daryl Kimball, executive director of the Arms Control Association.

He is calling on Obama to "publicly reiterate that nuclear testing anywhere is a serious threat to international security and that it is U.S. policy to suspend nuclear cooperation with any state that conducts a nuclear weapon test explosion for any reason or violates its safeguards agreement."

That view appears to have had Obama's support when he served as a U.S. senator.

"In the event of a future nuclear test by the government of India, nuclear power reactor fuel and equipment sales, and nuclear technology cooperation would terminate," the Illinois Democrat said in a November 2006 floor colloquy with Senator Richard Lugar (R-Ind.), ranking member of the Senate Foreign Relations Committee.

In an unusual twist, the main nuclear cooperation agreement between the two nations includes a termination clause that allows either side to end cooperation based on virtually any reason. Some congressional staffers find consolation in that provision and argue that the subsequent reprocessing arrangement does not affect the fairly permissive right of termination.

Others, though, warn against Washington forsaking a potential interim step -- threatening suspension or actually invoking it in the reprocessing agreement -- which could be useful down the road for condemning New Delhi's testing while stopping short of backing out of the agreement altogether.

Opponents say this latest step toward implementing the 2008 U.S.-Indian deal comes at a delicate time, just one month before the 2010 Review Conference on the Nuclear Nonproliferation Treaty. Several non-nuclear NPT member nations reportedly are fuming that New Delhi has won a primary treaty benefit -- assistance with its civil nuclear program -- without signing the pact or adopting a comprehensive safeguards regime for all its atomic facilities.

The goal of the U.S. nuclear cooperation agreement with India was to "narrow the gap between states outside of the treaty and try to bring the Indians closer to the goal -- the principles that the U.S. supports -- the nonproliferation principles," Ambassador Susan Burk, who will represent Washington at the NPT review conference in May, said last week. "I think we will be prepared to discuss it in New York and to describe the thinking behind it and describe its implementation."

"I think it's problematic," Kimball told Global Security Newswire, referring to the timing of the deal. "It runs directly counter to what the United States and others are trying to underscore at this conference."

The pact also comes on the eve of Obama's April 12-13 Nuclear Security Summit. The White House is eager to show that it is working closely with India and other responsible nuclear weapons nations to safeguard atomic materials, experts said.

"This important step is part of the great, win-win narrative of the U.S.-India global partnership, affirming the commitment of our two countries to realize the full potential of our landmark civil nuclear agreement," U.S. Ambassador to India Timothy Roemer said in a March 29 statement. "These arrangements will help open the door for U.S. firms in India's rapidly expanding energy sector, creating thousands of jobs for the citizens of both our countries."

Roemer was so eager to get the pact that he personally intervened when the U.S.-Indian talks stalled last month, according to congressional sources (see GSN, March 10). The ambassador agreed to several concessions demanded by New Delhi that the Obama administration's negotiating team had earlier resisted, including provisions limiting the justification for suspension of the arrangement, these sources said.

"There isn't one thing India asked for that we didn't give them," said one Capitol Hill aide. "We get nothing."

The U.S. Embassy in New Delhi did not respond to a request for comment.

"There is nothing positive about this sort of concessionary bargaining for U.S. nonproliferation credibility at either the Nuclear Security Summit [or] the NPT Review Conference," said Henry Sokolski, executive director of the Nonproliferation Policy Education Center. "Some in Congress on the right and the left are thinking about how to change U.S. nonproliferation laws to correct for this."