The Hindu Business Line : <I>How tenable are Mr Bush's caveats? </I>

There is nothing left to be hashed or rehashed on the hard-core, substantive part of the nuclear deal. There are, however, certain aspects concerning the remarks of the US President, Mr George W. Bush, on some of the conditions attached by the Congress to the Henry J. Hyde US-India Peaceful Atomic Energy Cooperation Act that have not received the attention they deserve.

These remarks, whereby Mr Bush, tries to brush aside those conditions as "advisory", and not mandatory, do not figure on the body of the Bill itself above his signature, but are in the form of a statement issued following his signing the Bill into law.

That means that the Act and the statement have not been formally interlinked, and the Presidential caveats have no more force than an opinion not binding on the Congress.

Referring to the stipulation in the Bill that the President should annually report to the Congress whether India is fully and actively participating in the efforts of the US and other countries "to dissuade, isolate, and, if necessary, sanction and contain Iran" for its pursuit of indigenous efforts to develop its own nuclear capabilities, Mr Bush says that "given the Constitution's commitment to the presidency of the authority to conduct the nation's foreign affairs", he considers it only advisory in nature.

With regard to other provisions asking him to furnish information to the Congress on end-use, stockpiling of nuclear fuel and so on, he declares his intention to construe them in a manner "consistent with the President's Constitutional authority to protect and control information that could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's Constitutional duties".

Despite these demurrers, the problems created for India by the prescriptions and prohibitions contained in the (Dr Jekyll and Mr Hyde) Act will still remain. For one thing, the assumption by the President that the Constitution in so many words assigns the conduct of foreign policy to the presidency is not borne out by the text. Actually, as the Encyclopaedia of American History points out, there is no comprehensive grant of a foreign affairs authority in the US Constitution. Because of this, Presidents have from time to time assumed authority over foreign affairs. Arthur Schlesinger in his book The Imperial Presidency calls this presidential aggrandisement a product of one part usurpation and two parts acquiescence.

In any case, the contention of Mr Bush is questionable on two grounds: For one thing, the Congress has explicit authority over commerce which will cover the sale and export of any product or service, including nuclear reactors, fuel or technology, within or outside the US, and, therefore, has to be fully kept in the picture.

For another, there is no way the President can violate, without risking impeachment, a provision categorically requiring him to report, or furnish information, to the Congress. His reports will necessarily have to be based on information obtained from the Government of India, which means intrusive queries, cross-checks and investigations on the spot. Those who have gone into raptures over Mr Bush's self-serving observations need to ponder over these implications.

They are also claiming that the Hyde Act simply paves the way for the agreement to be negotiated under Section 123 of the US Atomic Energy Act and hence, need not be taken seriously. This is an untenable supposition. The 123 Agreement cannot wash away the conditionalities of the Hyde Act which will haunt India for as long as it is on the statute book.

B. S. Raghavan

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