On December 18, 2006, the President signed into law H.R. 5682, an Act containing the “Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006.” As has seemingly become customary, the President included a signing statement that appears to purport to nullify reporting requirements contained in the bill:
The executive branch shall construe provisions of the Act that mandate, regulate, or prohibit submission of information to the Congress, an international organization, or the public, such as sections 104, 109, 261, 271, 272, 273, 274, and 275, 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.
Here are the offending provisions:
Sec. 104 (c) Submission to Congress-
(1) IN GENERAL- The President shall submit to the appropriate congressional committees the determination made pursuant to subsection (b), together with a report detailing the basis for the determination.
(2) INFORMATION TO BE INCLUDED- To the fullest extent available to the United States, the report referred to in paragraph (1) shall include the following information:
(A) A summary of the plan provided by India to the United States and the IAEA to separate India’s civil and military nuclear facilities, materials, and programs, and the declaration made by India to the IAEA identifying India’s civil facilities to be placed under IAEA safeguards, including an analysis of the credibility of such plan and declaration, together with copies of the plan and declaration.
(B) A summary of the agreement that has been entered into between India and the IAEA requiring the application of safeguards in accordance with IAEA practices to India’s civil nuclear facilities as declared in the plan described in subparagraph (A), together with a copy of the agreement, and a description of the progress toward its full implementation.
(C) A summary of the progress made toward conclusion and implementation of an Additional Protocol between India and the IAEA, including a description of the scope of such Additional Protocol.
(D) A description of the steps that India is taking to work with the United States for the conclusion of a multilateral treaty banning the production of fissile material for nuclear weapons, including a description of the steps that the United States has taken and will take to encourage India to identify and declare a date by which India would be willing to stop production of fissile material for nuclear weapons unilaterally or pursuant to a multilateral moratorium or treaty.
(E) A description of the steps India is taking to prevent the spread of nuclear-related technology, including enrichment and reprocessing technology or materials that can be used to acquire a nuclear weapons capability, as well as the support that India is providing to the United States to further United States objectives to restrict the spread of such technology.
(F) A description of the steps that India is taking to secure materials and technology applicable for the development, acquisition, or manufacture of weapons of mass destruction and the means to deliver such weapons through the application of comprehensive export control legislation and regulations, and through harmonization with and adherence to MTCR, NSG, Australia Group, and Wassenaar Arrangement guidelines, compliance with United Nations Security Council Resolution 1540, and participation in the Proliferation Security Initiative.
(G) A description and assessment of the specific measures that India has taken to fully and actively participate in United States and international efforts to dissuade, isolate, and, if necessary, sanction and contain Iran for its efforts to acquire weapons of mass destruction, including a nuclear weapons capability and the capability to enrich uranium or reprocess nuclear fuel and the means to deliver weapons of mass destruction.
(H) A description of the decision of the NSG relating to nuclear cooperation with India, including whether nuclear cooperation by the United States under an agreement for cooperation arranged pursuant to section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153) is consistent with the decision, practices, and policies of the NSG.
(I) A description of the scope of peaceful cooperation envisioned by the United States and India that will be implemented under the agreement for nuclear cooperation, including whether such cooperation will include the provision of enrichment and reprocessing technology.
(J) A description of the steps taken to ensure that proposed United States civil nuclear cooperation with India will not in any way assist India’s nuclear weapons program.
SEC. 109. UNITED STATES-INDIA SCIENTIFIC COOPERATIVE NUCLEAR NONPROLIFERATION PROGRAM.
(a) Establishment- The Secretary of Energy, acting through the Administrator of the National Nuclear Security Administration, is authorized to establish a cooperative nuclear nonproliferation program to pursue jointly with scientists from the United States and India a program to further common nuclear nonproliferation goals, including scientific research and development efforts, with an emphasis on nuclear safeguards (in this section referred to as `the program’).
(b) Consultation- The program shall be carried out in consultation with the Secretary of State and the Secretary of Defense.
(c) National Academies Recommendations-
(1) IN GENERAL- The Secretary of Energy shall enter into an agreement with the National Academies to develop recommendations for the implementation of the program.
(2) RECOMMENDATIONS- The agreement entered into under paragraph (1) shall provide for the preparation by qualified individuals with relevant expertise and knowledge and the communication to the Secretary of Energy each fiscal year of–
(A) recommendations for research and related programs designed to overcome existing technological barriers to nuclear nonproliferation; and
(B) an assessment of whether activities and programs funded under this section are achieving the goals of the activities and programs.
(3) PUBLIC AVAILABILITY- The recommendations and assessments prepared under this subsection shall be made publicly available.
Sec. 261 – This provision is odd because the President appears to be saying that he has the right to issue the information below if it suits him. The first case so far we’ve seen where the president has been less restrictive than Congress.
SEC. 261. PROTECTION OF CERTAIN INFORMATION.
(a) Locations and Facilities of Direct National Security Significance- No current or former Department of Defense or Department of Energy location, site, or facility of direct national security significance shall be declared or be subject to IAEA inspection under the Additional Protocol.
(b) Information of Direct National Security Significance- No information of direct national security significance regarding any location, site, or facility associated with activities of the Department of Defense or the Department of Energy shall be provided under the Additional Protocol.
(c) Restricted Data- Nothing in this title shall be construed to permit the communication or disclosure to the IAEA or IAEA employees of restricted data controlled by the provisions of the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), including in particular `Restricted Data’ as defined under paragraph (1) of section 11 y. of such Act (42 U.S.C. 2014(y)).
(d) Classified Information- Nothing in this Act shall be construed to permit the communication or disclosure to the IAEA or IAEA employees of national security information and other classified information.
Sections 271 – 275
SEC. 271. REPORT ON INITIAL UNITED STATES DECLARATION.
Not later than 60 days before submitting the initial United States declaration to the IAEA under the Additional Protocol, the President shall submit to Congress a list of the sites, locations, facilities, and activities in the United States that the President intends to declare to the IAEA, and a report thereon.
SEC. 272. REPORT ON REVISIONS TO INITIAL UNITED STATES DECLARATION.
Not later than 60 days before submitting to the IAEA any revisions to the United States declaration submitted under the Additional Protocol, the President shall submit to Congress a list of any sites, locations, facilities, or activities in the United States that the President intends to add to or remove from the declaration, and a report thereon.
SEC. 273. CONTENT OF REPORTS ON UNITED STATES DECLARATIONS.
The reports required under section 271 and section 272 shall present the reasons for each site, location, facility, and activity being declared or being removed from the declaration list and shall certify that–
(1) each site, location, facility, and activity included in the list has been examined by each agency with national security equities with respect to such site, location, facility, or activity; and
(2) appropriate measures have been taken to ensure that information of direct national security significance will not be compromised at any such site, location, facility, or activity in connection with an IAEA inspection.
SEC. 274. REPORT ON EFFORTS TO PROMOTE THE IMPLEMENTATION OF ADDITIONAL PROTOCOLS.
Not later than 180 days after the entry into force of the Additional Protocol, the President shall submit to the appropriate congressional committees a report on–
(1) measures that have been or should be taken to achieve the adoption of additional protocols to existing safeguards agreements signed by non-nuclear-weapon State Parties; and
(2) assistance that has been or should be provided by the United States to the IAEA in order to promote the effective implementation of additional protocols to existing safeguards agreements signed by non-nuclear-weapon State Parties and the verification of the compliance of such parties with IAEA obligations, with a plan for providing any needed additional funding.
SEC. 275. NOTICE OF IAEA NOTIFICATIONS.
The President shall notify Congress of any notifications issued by the IAEA to the United States under Article 10 of the Additional Protocol.
Taken together, the above cancellations appear to make it impossible for Congress or the American public to know whether India is using our technology for peaceful purposes or not. Additionally, it seems to hide information about what our country intends to do about proliferation threats from already nuclear states.
Will the new Congress take President Bush to court and put an end to “Cafeteria bill signings?”
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