Friendly fire: The curious case of US sanctions on India

Friendly fire: The curious case of US sanctions on India
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Determined to punish Russia for interfering in the 2016 U.S. presidential election, last August Congress passed the Countering America’s Adversaries Through Sanctions Act (CAATSA). The bipartisan legislation requires the president to sanction foreign and domestic entities doing business with Russia’s defense and intelligence sectors. 

Congress’s intentions were noble. Russia should pay a price for meddling in America’s democratic process. Unfortunately, the way CAATSA was drafted it threatens to penalize not just Russia, but India and the promising U.S.-India partnership as well. That is, unless lawmakers move quickly to forestall this misguided burst of friendly fire.

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CAATSA orders the president to sanction any person who engages in a “significant transaction” (left undefined) with Russia’s defense or intelligence establishment. The president must impose “five or more” sanctions per individual, drawing from a list of potential actions that includes: prohibiting government loans or grants over $10 million, opposing loans from international financial institutions, blocking assets, and revoking visas.

 

Peculiarly, it appears the bill’s drafters never foresaw that key American partners like India were likely to be ensnared in CAATSA sanctions. Nor did they envision that even the threat of sanctions might pollute the diplomatic atmosphere or threaten some of the goodwill built with the government of Prime Minister Narendra Modi over the past four years. 

Like Vietnam, another Indo-Pacific country the U.S. has been courting, India still relies heavily on Russia for defense hardware. Much of its legacy military platforms are of Soviet origin, requiring costly maintenance and upkeep. New Delhi also continues to pursue new arms deals with Moscow, including a pending multibillion-dollar deal for advanced S-400 air defense systems.

Since the end of the Cold War India has come a long way toward diversifying its defense suppliers, with the U.S. serving as the principal beneficiary. Over the past decade India has purchased roughly $15 billion in U.S. defense equipment. According to the SIPRI database, from 2008 to 2012 Russia provided 79% of India’s arms imports while the U.S. accounted for only 2.7%. Over the next five-year period, Russia’s share plunged to 62%, while America’s share grew over five-fold to 15%.

India should be encouraged to continue weaning itself off Russian hardware. But no credible expert thinks it’s reasonable to demand that India halt defense trade with Russia immediately and indefinitely. None believes India could do so without seriously undermining its national security.

Recognizing this, Defense Secretary James MattisJames Norman MattisOvernight Defense: Trump identifies first soldier remains from North Korea | New cyber strategy lets US go on offense | Army chief downplays talk of 'Fort Trump' Pompeo backed continued US support in Yemen war over objections from staff: report Stand with veterans instead of predatory for-profit colleges MORE sought a traditional national security waiver from Congress that would have given the administration some strategic flexibility with India on CAATSA sanctions. The request was denied. As Capitol Hill aides confide, the legislation was written in a manner specifically designed to “tie the hands of the administration” on Russia sanctions. The bar for any waiver or delay was set particularly high.

CAATSA does allow for a presidential waiver, subject to congressional review but the terms are too onerous to be meaningful. Among other things the president must certify “the government of the Russian Federation has made significant efforts to reduce the number and intensity of cyber intrusions conducted by the government.” In other words, likely a non-starter.

CAATSA also contains a renewable six-month delay provision (not subject to congressional review) that the president can exercise if he or she can certify the target of sanctions is “substantially reducing the number of significant transactions” with Russia’s defense and intelligence sectors. However, “substantial reduction” is undefined and a cycle of continuous delays could ensure the subject remains a recurring bilateral irritant.

Finally, the president may terminate sanctions if they notify Congress: (1) the person is no longer engaging in the sanctionable activity or has taken significant verifiable steps toward stopping the activity, and (2) they have received reliable assurances that the person will not knowingly engage in similar activity in the future. India’s geopolitical sensibilities and the reality of its defense profile and requirements make such reassurances unlikely.

Ultimately, these are sub-optimal solutions for a problem that Congress admits it never wanted. For over a decade Washington has been trying to convince Delhi to shed the constraints of its Non-Alignment past—to persuade it that a partnership with America would in no way erode its prized autonomy and independence. For the most part, the U.S. has backed that pledge with action, carving out a panoply of special exemptions for India and demonstrating flexibility when their interests have diverged.

CAATSA risks undermining these long-term efforts at trust-building. Indeed, the very discussion surrounding these sanctions has already provided American skeptics in Delhi ample ammunition, while offering Russia a convenient narrative about America’s capriciousness. The more Delhi fears it can be subjected to U.S. sanctions randomly and haphazardly, the more it will view the U.S. as an unreliable defense partner. 

There’s at least one potential legislative remedy in sight. Even as the administration continues to push for a traditional national security waiver, the House version of the National Defense Authorization Act (NDAA) contains an amendment that would expand the president’s flexibility to apply (or not apply) CAATSA sanctions. An attempt to insert a different fix in the Senate version of the NDAA failed. Legislators will now have to reconcile the two bills in conference committee. While contemplating the House amendment and additional legislative remedies, Congress should carefully consider the geopolitical stakes and the tremendous investments Washington and Delhi have made in this relationship.

Punishing Russia for its electoral chicanery makes a great deal of sense. CAATSA, by contrast, could end up punishing a key U.S. partner while handing Russia an unexpected victory. At a time Delhi and Moscow have grown increasingly estranged, Russia would like nothing more than to drive a wedge between the two democracies. Congress, the ball is in your court.

Jeff M. Smith is a research fellow at The Heritage Foundation; Bharath Gopalswamy is the Director of the South Asia Center at the Atlantic Council