A broad sanctions law crafted in haste amid anti-Russia fever and without foresight on its potential impact on other countries has been partially fixed.
The US Congress has agreed to grant the Trump Administration limited authority to waive sanctions on India under the Countering America’s Adversaries Through Sanctions Act or CAATSA for buying Russian military equipment. Indonesia and Vietnam are the two other countries covered by the waiver.
A conference committee of the House and Senate while reconciling the two versions of the 2019 National Defence Authorisation Act (NDAA) decided to provide “flexibility for strategic partners and allies to move away from the use of Russian military equipment to American equipment, while ensuring that US defense and security interests remain protected, through a modified waiver” under CAATSA.
But is it a real solution or might India still get sanctioned if it were to buy the Russian S-400 air defence system? As they say, it’s complicated.
The new authority definitely allows the administration to waive sanctions if India were to proceed with the purchase. Without the latest amendment, the law was very clear about imposition of sanctions following any “significant transaction” with Russia, which the S-400 deal would be.
It is highly likely the Trump Administration will use the waiver for India given strength of the “strategic partnership” and the stated US policy on the Indo-Pacific in which a significant role for India is envisaged.
The final version of the NDAA, now ready, will be voted on by both chambers in the coming weeks before being signed into law by President Donald Trump. Some will keep their fingers crossed until then because of the extremist nature of Washington politics these days even though once finalized the NDAA has always gone through unscathed in recent memory.
The waiver is certainly a welcome and positive development as India and the United States prepare for their first 2 plus 2 dialogue on Sept. 6 in New Delhi between the foreign and defence ministers. It removes a major irritant because the threat of US sanctions against India had created uncertainties about American commitment to the partnership.
The absurdity of sanctioning a partner while trying to strengthen relations to create a safer, rules-based Indo-Pacific region was not lost on the Trump Administration and on key members of the House and Senate.
But the rage against Russia for alleged meddling in the 2016 elections – the reason for CAATSA’s birth in 2017 – was greater. CAATSA also targets Iran and North Korea. The thrust was to not only punish the three but also anyone else dealing with them.
Trump had signed CAATSA reluctantly last year. He issued a statement at the time saying the law encroached on executive power and that it would “drive China, Russia and North Korea much closer together.”
Ever since, Trump’s Secretary of Defence James Mattis has argued that the Congress should amend CAATSA and give the administration wide authority to grant waivers.
What Mattis got on Monday was a “modified” waiver weighed down by several conditions. He immediately wrote a letter to the chairman of the House Armed Services Committee, William Thornberry, calling the conditions “stringent” and renewing his request for a cleaner national security waiver.
Mattis asked that the authority to grant waivers be vested in the Secretary of State rather than the president. That is indeed the tradition.
In the current dispensation, it might especially be best for all concerned that CAATSA waivers are settled one rung below the Oval Office.
The new language in NDAA 2019 amends Section 231 of CAATSA, saying the US president may use the authority to waive sanctions if he certifies in writing to the US Congress that the waiver is in the national security interest, that it is not a significant transaction with any one of seven Russian defence or intelligence agencies listed in the amendment and that the transaction doesn’t affect specific US interests.
In addition, the president must also certify that the foreign government in question meets one of two conditions: that it is “is taking or will take steps to reduce its inventory of major defense equipment and advanced conventional weapons” made by Russia or it is “cooperating” with the US government on security matters critical to US strategic interests.
Then the secretary of state and the secretary of defence must jointly submit a report to the House and Senate Armed Services committees within 120 days and annually for two years thereafter.
Jeff Smith of the Heritage Foundation called it a “sub-optimal but reasonably effective solution, at least in the near term.” The new amendments “should provide the White House a clear enough path to exempt India from any related sanctions, including over a possible S-400 deal.”
But certifications, conditions and endless reporting back to the Congress can create their own complications and dynamics over time depending on the pattern of political winds of the day.
In the meantime, it would be best to keep rhetorical flourishes at a minimum in both New Delhi and Washington in the interest of the larger security relationship.
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