US Congress paves way for waivers from sanctions for India

The United States Congress has passed the conference report on National Defense Authorization Act-2019 (NDAA-19), which paves the way for waiver to India from punitive Countering America's Adversaries Through Sanctions Act or CAATSA, under which sanctions kick off on countries that purchase significant military equipment from Russia.

The Senate passed the John McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) by an overwhelming, bipartisan vote of 87 to 10.

Passed by the House last week, the bill, named after Senate Armed Services Committee Chairman John McCain, would provide USD 716 billion support in funding for national defense for fiscal year 2019.

The bill, which now moves to the White House for President Donald Trump to sign it into law, among other things, provides a modified waiver to section 231 of CAATSA.

Unlike the existing version of the act, the proposed modified waiver requires presidential certifications designed to protect US alliances, military operations and sensitive technology.

"The CAATSA waiver that the Congress has made available to India in the 2019 National Defense Authorization Act should provide ample flexibility for New Delhi to proceed with the purchase of the Russian S-400 system," Joshua White, a former senior official of the National Security Council in the White House, told PTI.

"The legislative language is designed to look very tough, as though the Congress is tightening its secondary sanctions on countries that procure Russian equipment. In reality, the language contains multiple loopholes that benefit India," he said.

"The most significant (such) loophole allows the President to certify that a country is "cooperating with the United States Government on other matters that are critical to United States strategic national security interests". As certifications go, this one is relatively easy to justify in the case of India," White said.

At the same time, it is important to remember that even "easy" waivers can have unpredictable political effects, he cautioned, adding this legislation will require that the administration track and report the degree to which India "is taking or will take steps" to reduce its inventory of Russian equipment.

"This means that neither Washington nor New Delhi can simply point to a long term, historical decline in India's inventory of Russian equipment, but have to identify specific and forward-looking efforts to do so. These kind of reporting requirements can become political irritants and can be used by future legislators to exert leverage in unexpected ways," White said.

Anish Goel, a former senior administration official in Barack Obama's White House, and till recently a senior professional staff member in the Senate Armed Services Committee, said the Congress should be commended for providing the CAATSA waiver authority for strategic partners such as India.

"By doing so, the Congress has avoided putting serious strain on the bilateral relationship, put additional pressure on the Russian defense industry, and fulfilled the original objective of the CAATSA legislation. The waiver authority is a strong signal that the United States greatly values its partnership with India," Goel told PTI.

The John McCain National Defense Authorization Act for Fiscal Year 2019, which authorises funding for the Department of Defense and the national security programmes of the Department of Energy, encourages US allies and partners to reduce inventory of Russian-produced major defence equipment and advanced conventional weapons.

At the same time, it excludes the possibility of waivers for Russian intelligence agencies and other entities engaged in cyber-attacks.

Last month, US Defense Secretary James Mattis, in a letter, asked the Congress to give the Secretary of State the waiver authority.

Doing so allows nations to build a closer security relationship with the US as they continue to transition from reliance on Russian military equipment, he had said.

"The fundamental question we must ask ourselves is do we wish to strengthen our partners in key regions or leave them with no other option than to turn to Russia, thereby undermining an once in a generation opportunity to more closely align nations with the US vision for global security and stability," Mattis had said.