A brief filed last month in U.S. federal district court argues, on grounds related to Israel’s nuclear activities, that U.S. aid to Israel is illegal. It’s easy to dismiss its chances in court, but it raises questions that may well gain political resonance in the United States, and so merit attention.
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We need a bit of background. After the 1974 Indian nuclear test explosion the U.S. Congress became seized with the importance of restraining the spread of nuclear weapons. Congress was especially miffed when it discovered that the small reactor (one much like Dimona) that produced the plutonium for the Indian bomb used U.S.-supplied heavy water. What was worse, India had broken its promise to use the U.S.-supplied heavy water only for peaceful purposes.
The Indian reactor and the reprocessing facility that extracted plutonium from the reactor’s irradiated uranium fuel were not subject to international inspection. As it became clear that reprocessing technology was becoming widely available, Congress passed a law barring U.S. aid to countries involved in sale of reprocessing facilities unless the facilities were subject to international inspection. The law, proposed by Senator John Glenn, became known as the Glenn Amendment. It is now incorporated into Section 102(b) of the Arms Export Control Act.
Which brings us to what is of particular interest for Israel: in addition to restrictions on reprocessing transfers, the law imposed sanctions on any “non-nuclear-weapon-state” that “detonates a nuclear explosive device” after 1977. This is where the going gets heavy.
The law defines “non-nuclear-weapon-state” as any state other than the five nuclear powers authorized by the Nonproliferation Treaty, so the label includes India, Israel, North Korea, and Pakistan. The sanctions for detonating a nuclear explosion are tough: termination of assistance under the Foreign Assistance Act, termination of sales of defense equipment and military financing, prohibition of loans from US banks, and more. In other words, if the U.S. government were to conclude Israel detonated a nuclear explosion after 1977, the law, unless waived, would effectively end all U.S. aid to Israel.
Can it be argued that Israel detonated a nuclear explosion after 1977? As is now well-known, on September 22, 1979, a U.S. Vela satellite reported a signal from about a thousand miles south of South Africa that was widely interpreted as coming from a nuclear explosion — widely interpreted, that is, by the U.S. intelligence community and most analysts, but not by the Carter White House.
An announcement that a nuclear test had taken place, let alone an Israeli one, would have been politically awkward for U.S. President Jimmy Carter. His science adviser assembled a group of distinguished scientists and in effect asked them whether there was any other possible explanation for the satellite signal. And indeed the scientists came up with a possible alternative explanation involving a reflection from a tiny particle bouncing off the satellite.
However, so far as I know, there is only one knowledgeable and respected scientist remaining who believes this interpretation. The near universal view today is that the 1979 signal came from a nuclear explosion conducted by Israel — apparently to test battlefield weapons.
One can therefore say that all U.S. aid to Israel hangs on ignoring this fact.
Almost. The law contains a provision for a waiver, and, in 2001 U.S. President George Bush granted such a waiver to both India and Pakistan, each of which had set off several nuclear explosions in 1998. In fact, he waived not only the Glenn Amendment but also a series of other laws that would have imposed sanctions on the two countries as a consequence of their nuclear weapons activities. Undoubtedly, if the Glenn Amendment became an issue with respect to Israel, the U.S. president, whoever he or she may be, would waive the application of the law and Congress would approve.
But even if a waiver is assured, and therefore there is no risk that U.S. aid to Israel would be suspended, a presidential waiver would be terribly embarrassing and might have unexpected political consequences. For one thing, it would mean the uncomfortable acknowledgement that the U.S. government had misled the public for decades by pretending it had no information about any Israel nuclear weapons. Or, that it intended to mislead the public. The truth is that, whatever was the case decades ago, no one who has any interest in the subject of nuclear weapons has any doubts about who has what.
We now have the strange situation that while the U.S. government and the mainline U.S. press are silent, in part for fear of triggering legal sanctions, Israel openly brags about its nuclear force. One has only to look in Haaretz to read detailed accounts of Israel’s nuclear-armed undersea force, including boasts by the prime minister, lacking the word “nuclear” but nevertheless unmistakable: "Our submarine fleet is used first and foremost to deter our enemies who strive to extinguish us. They must know that Israel is capable of hitting back hard against anyone who seeks to hurt us...”
Israel takes for granted its ability to control U.S. political discourse regarding its nuclear program. Perhaps it can continue to do so indefinitely, but one has the feeling that in America’s increasingly volatile politics that is not a sure bet.
Victor Gilinsky was a commissioner of the U.S. Nuclear Regulatory Commission during the Ford, Carter, and Reagan administrations and head of the Rand Corporation's Physical Science Department.