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No. 1, July 2010
U.S. export control reform is a thorny political monster that periodically rears its ugly head. And it is back again. The Obama administration has proposed a comprehensive set of reforms to overhaul the U.S. export control system in an effort led by Defense Secretary Robert M. Gates.[1] Prior to his appointment by President George W. Bush in 2006, Gates served as a member of a National Academies committee that produced a report in 2009 titled Beyond “Fortress America”: National Security Controls on Science and Technology in a Globalized World, which declared the U.S. export control system “broken” and set in motion the entire reform effort.[2] Gates has been credited with raising export controls to the highest level of visibility within the Obama administration–even meriting a mention in the president’s State of the Union address.[3] In an April speech, Gates laid out the administration’s vision of a reformed export control system–featuring a single export control licensing agency, a list of controlled items, an enforcement agency, and an information technology (IT) system–to enhance U.S. national security and economic competitiveness.[4] National Security Adviser General James L. Jones provided further details of the administration’s proposals in a speech on June 30.[5] Yet, despite the high-level support for the reforms within the Obama administration, there is significant disagreement about the effectiveness of the proposed reforms and the likelihood that substantive reform can be achieved politically in the proposed one-year time frame. This National Security Outlook considers the Obama administration’s export control reform initiative and discusses its prospects.
Key points in this Outlook:
The Obama administration has proposed the most comprehensive plan to reform the U.S. export control system in three decades.
The Obama administration’s initiative has laudable goals, but how the reforms are implemented will determine whether U.S. national security is enhanced and the United States continues to be a preeminent hub of technological innovation.
The Obama administration must prove its national security bona fides in order to achieve political buy in from the national security community and Congress for its proposed export control reforms.
Whether or not one agrees with the Obama administration’s efforts to date, few would say the current export control system adequately achieves its objectives–that is, protecting U.S. national security and facilitating U.S. technological leadership. Supporters and detractors alike agree that the current, complex, cold war-based rules are overly broad and lack the sophistication and specificity needed to protect national security sufficiently and keep cutting-edge technologies out of the hands of our adversaries. Conversely, the rules also make it difficult to export high-tech products–even to allies–which has the perverse effect of harming U.S. national security through undermining our domestic defense industrial base. The overlapping jurisdictions of the various federal agencies involved, undecipherable lists of controlled products, varying methodologies and interpretations of the law among agencies, delays in the licensing process, and unaccountable administrators who make compliance a moving target are among the myriad problems with the current system. The system’s very incoherence undermines the controls’ national security ambitions. On the business side, unworkable rules eat away at U.S. economic competitiveness as high-tech R&D, manufacturing, and American jobs are driven abroad. At the end of the day, export controls are first and foremost national security provisions. How they are administered needs rethinking–not only to enhance U.S. national security but also to ensure the United States maintains its status as the preeminent hub of technological innovation.
What Reforms Are Needed?
This question gets to the crux of the debates that surround export control reform: the answer depends on where one sits. In a nutshell, there are two major camps on these issues: a “no” camp and a “pro-reform” camp–an admittedly highly simplified characterization that nonetheless is an illuminating way of framing their differences. The “no” camp includes those more hawkish on national security issues and tends to be generally averse to reform. It takes a transaction-by-transaction risk approach, perceives existing U.S. export controls as already too permissive, and believes controls have been ineffective in protecting sensitive U.S. products and technologies. This camp argues that even seemingly outdated U.S. technology could enhance the technical capabilities of our adversaries and distrusts any attempts to liberalize export controls, arguing that federal licensing agencies have not had a good track record of keeping sensitive technologies and products out of the hands of rogue regimes and hostile nonstate groups. In short, the “no” camp believes that reform efforts tend to be hijacked by industry and that the status quo–or even tightening controls–better serves U.S. national security interests.
The “pro-reform” camp tends to take a broader view of U.S. national security to confer more weight on U.S. economic competitiveness. Embodied by the National Academies’ Beyond “Fortress America” report, this camp believes the existing system stymies private technological innovation and damages national security by undercutting the U.S. high-tech manufacturing base.[6] Many who favor reform believe the controls impede U.S. interoperability with close allies and limit cooperation with strategic partners. The “pro-reform” camp questions the need for U.S. dual-use and defense controls on products and technologies available from foreign sources. This camp argues that exporters must contend with a protracted export licensing system, which disadvantages them vis-à-vis foreign competitors that both do not face such restrictions and often market their items as free of U.S. export control restrictions. Overall, those in this camp observe that, while the United States may have had a monopoly on cutting-edge products and technologies in the past, the U.S. export control system has not kept pace with the evolving global economic landscape.
These differences of opinion have caused a stalemate on export control reform. Due to the complexity of the system and a dearth of studies quantifying its costs, the “pro-reformers” have been unable to make convincing arguments that the system is actually broken: it is difficult to quantify in dollar terms business lost because of export controls, opportunity costs foregone due to delays in agency licensing decisions, or regulatory compliance costs. Even the best studies tend to base their analyses on the results of surveys, interviews, or projections.[7] As a result, the shortfalls of the system tend to be predominantly anecdotal. Just as the “no” camp tends to brush off the “pro-reform” arguments on the basis of industry capture, those in favor of reform have been unable to prove their bona fides on national security issues. Because the “pro-reform” arguments usually lack quantitative proof, the “no” camp’s national security arguments are dominant and more credible. There is only one answer to the question “should we risk exporting sensitive technology to Iran or North Korea?” And the “no” camp has embraced an absolutist approach to previous reform attempts, arguing that protections are routinely ignored in most reform plans.
Given these virtually irreconcilable philosophies that shape the export control reform debates, any kind of reform–liberalization or heightened restrictions–will be an uphill political battle. Whether the Obama administration’s proposed reforms can bridge the philosophical divide and meet these challenges is uncertain and warrants closer examination.
The Obama Administration’s Export Control Reform Proposals
In August 2009, the White House announced the commencement of a full-scale review of dual-use and defense trade export controls led by the National Economic Council and National Security Council (NSC).[8] The administration created an export control task force led by the NSC and composed of ten members from eight executive branch agencies to come up with a set of prescriptions for an ideal export control system divorced from the equities of the members’ respective agencies. The task force compiled its set of recommendations and submitted them for cabinet-level top-down review earlier this year. Gates made the results of this process public in his April 20 speech, in which he called for a consolidation of the list of controlled products as well as the licensing, enforcement, and IT functions in one year.
The last attempt to reform the export control system was in the aftermath of the 9/11 terrorist attacks, but nothing came of this effort. Since then, some attempts at legislation have been made, along with National Security Presidential Directives 55 and 56 in 2008, which made tweaks to military and dual-use trade controls. However, this is the first proposed reform of this magnitude since the Carter administration, and the announced proposals have been more ambitious than most anticipated.
Depending on how it is implemented, the administration’s proposal could be revolutionary in the chaotic world of export controls.[9] U.S. controls are administered primarily by the Department of State’s Directorate of Defense Trade Controls (DDTC) and the Department of Commerce’s Bureau of Industry and Security (BIS), the agencies that license defense and dual-use items, respectively. The Departments of Defense and Energy, other cabinet agencies, and the intelligence community are also involved in the interagency export control policy and licensing process. U.S. sanctions programs are admin-istered by the Department of Treasury’s Office of Foreign Assets Control (OFAC) and have their own complex statutory and regulatory bases. The Arms Export Control Act (AECA) of 1976 and the Export Administration Act (EAA) of 1979 are the statutory bases of U.S. dual-use and defense controls.[10] The AECA has been implemented through the International Traffic in Arms Regulations, which contains the U.S. Munitions List (USML), the list of controlled defense articles and services.[11] The EAA, implemented through the Export Administration Regulations, contains the list of controlled items, the Commerce Control List (CCL).[12] The control lists include those items controlled pursuant to multilateral export control regimes as well as U.S. unilateral controls. The lists of controlled products have seen only minor updates over the years. Exporters are largely left to themselves to determine which agency has jurisdiction over their exports. When an exporter or even a government agency is unsure whether an export is a dual-use or defense item, a commodity jurisdiction (CJ) can be requested from DDTC.[13] The CJ process is time-consuming–it can take more than a year–and often acrimonious among agencies. Overall, these and other bureaucratic complexities have undermined and paralyzed the system’s effectiveness, rendering its intended goals increasingly more difficult to realize. To attempt to address these issues, the Obama administration has proposed a three-phase approach to accomplish a full-scale overhaul of the system within one year.[14]
In Phase I, which is currently underway, the administration has commenced certain policy and regulatory changes. The USML and CCL are being reformulated, based on “independent objective criteria,” into a parallel, tiered system of cascading levels of control from the most sensitive military products and technologies to those items controlled under multilateral arrangements. The control lists are being modified to be more flexible in terms of adding and removing items, program licenses are being created to deal with controlled items as well as their parts and components, a system is being created to prioritize licensing processes, and a “bright-line process” is being formulated to identify which items belong on which list. It is envisioned that the USML will become a “positive” list like the CCL, meaning that items will be controlled only if they are enumerated. Licensing is in the process of being standardized between agencies with the creation of a single application form. The IT system has begun to be reformed to include a single-entry portal for exporters, which will be the Department of Defense’s USXPorts system. Enforcement activities have begun consolidation into an “Enforcement Fusion Center”–a permanent office with personnel from existing enforcement entities and the intelligence community that will be the locus of export enforcement activities. In addition, the recent Iran sanctions law included provisions to harmonize maximum export control penalties, add certain civil penalty provisions, and commission a study by the U.S. Sentencing Commission on the impact and advisability of imposing mandatory minimum criminal sentences for export control violations.
Phase II would build on Phase I by strengthening the parallel, tiered system of the control lists and removing unilateral controls as appropriate. The U.S. government would submit proposals to the multilateral regimes to add and remove items from the lists as necessary. Licensing would be further harmonized between agencies “to allow export authorizations within each control tier to achieve a significant license requirement reduction which is compatible with national security equities.”[15] The IT system would be transitioned to USXPorts, and enforcement outreach and compliance activities would be expanded. Phase II would require both congressional notification to remove items from the USML or transfer them to the CCL and appropriations for enhanced enforcement and IT infrastructure.
Finally, while the Obama administration asserts that Phase I and Phase II reforms can be completed through executive branch policy and regulatory changes, much of Phase III would require congressional action. Phase III would merge the USML and CCL and create a single independent licensing agency with cabinet officials serving as its board of directors (through the advice and consent of the Senate). Commerce’s Office of Export Enforcement and the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement Counterproliferation Program would be combined into a single dedicated enforcement unit, with a single IT system for licensing and enforcement.
Prospects for Effective and Meaningful Export Control Reform
The Obama administration’s commenced reforms are certainly ambitious and have laudable goals. However, their success–in actuality and content–is by no means assured. There are questions regarding whether the haste to reform this very complex system in one year will produce ill-considered results. Few in Washington believe something this progressive has a chance of success, at least in the proposed time frame. Moreover, the nearly irreconcilable battle between the “no” and “pro-reform” camps will be the ever-present framework for the ensuing discussions. Important details regarding the nuts and bolts of the envisioned system are yet to emerge, but the following sections outline a number of considerations for whether the proposed reforms will be possible and whether they will have their intended results.
Will the Obama Administration Make a Convincing Case That the New System Will Protect U.S. National Security More Effectively? U.S. export controls are national security export restrictions with roots in the Export Control Act of 1949, a federal statute dating back to the cold war. National security concerns have stymied prior reform attempts. If the current export control reform effort has any chance of success vis-à-vis Congress or stakeholders, the Obama administration must make the case that the new system will protect national security and prevent sensitive goods and technologies from falling to terrorists and rogue states more effectively than the current system. The Democratic Party’s reputation for being soft on national security will make this difficult for the president, whose foreign policy to date has done little to allay these concerns.
Further, the White House has not consistently cast export control reform as a national security initiative and has instead characterized it as an export promotion program. While the international trade agencies, such as the Office of the U.S. Trade Representative and the International Trade Administration of the Department of Commerce, are not participating in the reform efforts, the president’s mention of export controls in his State of the Union address, while momentous, was in the context of international trade and the National Export Initiative (NEI), a plan to double U.S. exports in five years.[16] In his recent announcement of the NEI’s Export Council, the president again featured export control reform.[17] One need only look at the 2010 National Security Strategy to see that the national security focus of this initiative continues to be muddled.[18] In each case, the president’s simple caveat that export control reform must be consistent with national security concerns does little to diminish the export promotion context of those statements.
In contrast, Gates understands the need to cast export control reform in national security terms–even when discussing economic competitiveness issues. In his April 20 speech, Gates explicitly stated that the current system is in itself a threat to national security. He explained that export control reform is key to U.S. military superiority in a world where cutting-edge products and technologies are developed by a private-sector, high-tech manufacturing base. Gates sees such a system as sustainable only if the private technology sector is able to sustain its health and productivity through exports. Moreover, the secretary’s mere presence as the standard-bearer for the reforms strategically attempts to convey the national security focus of the reforms. It also should not be forgotten that Gates is publicly leading the charge, even though the Department of Defense does not actually undertake export licensing.
Perceptions matter, but it is no secret that this effort also goes to the heart of long-term U.S. economic competitiveness. The proposal has an economic dimension and naturally fulfills a critical element of the president’s NEI, in which high-tech industries will presumably play a significant role. Yet the Obama administration will have to tread this line lightly so as not to be seen as pandering to industry at the expense of national security. This is perhaps why Jones announced in his recent speech that the administration would undertake a strategy of addressing first the most sensitive items–in Gates’s words, “those critical technologies and items–the ‘Crown Jewels’ if you will–that are the basis for maintaining our military technology advantage, especially technologies and items that no foreign government can duplicate.”[19] By commencing the reform efforts by bolstering controls on such defense items, the administration may be able to secure subsequent political buy in for reforms to the lower-tech, dual-use controls.
Are the Proposed Reforms Comprehensive Enough to Actually Make Any Difference? The answer to this question depends on the details of the structural, statutory, and regulatory reforms that ultimately occur, but there are some preliminary observations. First, many assume that consolidating the USML and CCL into a single, tiered control list with standardized licensing criteria would lead to a liberalization of controls. This may not be the case. While some items may move “down” from munitions-level controls, other cutting-edge commercial technologies and products currently controlled under Commerce controls may move to higher-level, munitions-type controls. For example, munitions items cannot be exported to China without a presidential waiver because of the so-called Tiananmen Sanctions put in place following the Tiananmen Square massacre in 1989.[20] Depending on how the control lists are tiered, higher-level products and technologies that currently are permitted to be exported to China may, for better or worse, become prohibited. Additionally, a single, tiered control list with unilateral foreign policy or country-based controls could result in a system very similar to the one already in place. Dual-use export controls have restrictions for national security, regional stability, crime control, and other foreign policy objectives. Countries are also divided into groups that determine the level of controls on exports. The export control task force is tasked with paring down the control lists as well as reconsidering the foreign policy and country controls in place, but a full-scale change in U.S. foreign policy is unlikely to emerge from the review. Country-specific export control changes have been floated as a possibility with respect to India, but reports have not been confirmed.[21]
Second, there appear to be some gaps in the reforms. While the dual-use and defense trade control licensing regimes are slated to be reformed, it is unclear whether the nuclear regulatory regime, administered by the Department of Energy and the Nuclear Regulatory Commission, will be. The nuclear regulatory regime is, in many ways, as convoluted and complex as its sister export control systems and is also in need of reform. The Departments of State and Commerce are both involved in the inter-agency licensing process for nuclear materials and technologies. In addition, while Jones announced that the sanctions regime administered by OFAC will be included in the reforms, details have yet to emerge regarding what aspects of OFAC’s controls might be affected.
Third, on a broader note, export control reforms have perennially suffered from piecemeal changes in which additional rules have led only to increased complexity, not simplification. Liberalizations have tended to require some restrictions–justified or unjustified–to secure buy in from the national security establishment. While Gates has been scrutinizing this system from a high-level policy perspective, the fragmented regulations in place will have to be revised and rewritten to implement the reforms. Horse-trading among security, foreign policy, and commercial interests is sure to ensue and could have unintended consequences. A simpler solution might have been to discard the existing layers of regulations and formulate a whole new system. A better system may not necessarily emerge from merging the USML and CCL if the levels of control on product- and technology-specific as well as country- and end-user-specific bases are not carefully considered. A single enforcement system will make a difference only if intelligence is used competently and significant violations are targeted. A single licensing agency will make the process more efficient only if a single licensing philosophy is maintained and enforced among the staff. All in all, effective reforms cannot simply add yet another level of complexity to the existing set of rules.
What Will the Planned Independent Single Licensing Agency to Administer Export Controls Look Like? Some had speculated that the single export control agency proposed in Phase III of the reforms would be housed in one of the existing cabinet departments. However, Jones announced in his June 30 speech that the administration has decided to create a single inde-pendent agency for export control licensing with cabinet members (presumably from the existing export control agencies) serving as its board of directors.
As discussed previously, the U.S. export control system currently is under the jurisdiction of a number of federal agencies. A single portal would eliminate much confusion for exporters but would not be an automatic panacea. Consolidating the export control licensing function into one agency and combining personnel under one roof do not guarantee an end to institutional warfare. A key hurdle will be to ensure that U.S. national security, foreign policy, and commercial interests are each adequately represented, as is the goal of the existing interagency process. If this significant set of reforms is undertaken only to arrive at a system hijacked by the disproportionate influence of one of the cabinet departments or by staff whose views are antithetical to the spirit of the reforms, the effort will have failed. In short, the chosen locus for the export control function must be sufficiently accountable and independent to integrate the many competing interests, and the philosophy of export control administration must be defined and faithfully administered with sufficient political oversight.
An independent agency would have its own challenges, apart from being another costly bureaucracy in the federal government. Would the staff from the requisite agencies be physically moved into the new agency? Would the agency be independent or would the process actually be controlled by one of the existing departments? Would the independent agency have sufficient political leadership and accountability? Would an independent agency have any political clout to administer the inherently political decisions involving export controls? How will decision making be handled among cabinet officials?
In addition, a massive reorganization of existing personnel can simply be an exercise of musical chairs. Many are concerned there is too much focus on creating the Phase III single agency instead of on implementing the important substantive reforms in Phases I and II. If Phase III is rushed and premature, creating a single agency will effectively postpone major policy decisions for years while bureaucrats wrangle over the new logo on the new stationery and who gets which job, which corner office, and which parking space. (One need only look at the continuing institutional difficulties of DHS and the Office of the Director of National Intelligence.) Stakeholders fear that reorganization inevitably means postponing important decisions in favor of minor ones and claiming victory on reform when little is changed in reality.
Is There Sufficient Political Will to See the Reforms Through? The administration’s entire reform effort to date has been a top-down effort. Senior administration officials commenced the effort and are providing the political backing to keep the process moving forward. Gates is the driving force, and Jones, Secretary of State Hillary Clinton, Secretary of Commerce Gary Locke, and Undersecretary of State for Arms Control and International Security Ellen Tauscher also appear to be on board. The president has taken a degree of ownership over the effort, too. Because of Gates’s stature and importance to the initiative, however, it will live and die with his role in the administration. If he leaves the administration within a year, as many speculate, the initiative will have even fewer prospects. This is why even the administration’s one-year time frame for completion of the reforms is apparently driven more by Gates’s departure schedule than by the congressional calendar.
This top-down strategy has been implemented at the operational level through the NSC-directed export control task force, presumably by design, to minimize institutional and bureaucratic resistance to change. Each of the agencies involved in the export control process and agency staff have their own “rice bowl” of equities that they will seek to protect through the reform effort. If the administration undertakes the requisite reforms through executive order in a continued top-down approach, institutional conflict could be minimized. The challenge will be to maintain political oversight over the subsequent implementation of the reforms to ensure each agency’s middle management (whose positions may be made redundant) complies.
Has There Been Enough Transparency to Secure Buy In from Stakeholders? In addition to bureaucratic resistance, it is possible that the reforms could ultimately have only reluctant support from stakeholders. Neither the export control task force nor any of the agencies has formally requested outside input. A number of high-profile industry groups have submitted comments and met with administration officials, but, for an administration that has notionally made transparency a priority, this process has been remarkably opaque to those who do not enjoy high-level access. Those outside this cadre have had to rely on periodic speeches by administration officials or leaks in specialized trade publications to understand how the reform efforts are progressing. Thus, the system that emerges from the reform effort may be the product of government bureaucrats together with input only from select users.
Will Congress Go Along? In his April 20 speech, Gates indicated that Congress would be consulted throughout the reform process but did not state that congressional approval would be required for every step. In his June 30 speech, Jones reiterated that congressional action would only be required for Phase III. On close examination, many of the proposed reforms do not require legislation and could be undertaken through executive branch policy and regulatory changes. Phase I of the proposed reforms could be achieved entirely through executive branch action. In Phase II, only certain changes to the control lists would require congressional notification, and Congress would probably need to appropriate funds for enhanced enforcement and IT infrastructure. Only Phase III, which envisions merging the control lists, licensing, enforcement, and IT functions, would require certain congressional action. Even then, depending on how the reforms are implemented, only limited statutory modifications may be required: the AECA delegates much discretion to the president to organize and administer U.S. military controls. Under a scenario in which the EAA, which has been in lapse since 2001, is not reauthorized, the AECA could instead be amended to include dual-use export control provisions. Congress would then need to amend one statute, avoiding a multitrack approach that would be required to independently rewrite both the AECA and EAA through the distinct committees of jurisdiction in the House (Armed Services and Foreign Affairs) and Senate (Foreign Relations and Banking).
This rosy scenario, however, is likely divorced from the political realities of Washington. First, deep-seated, perennial, bipartisan congressional opposition to export control reform exists for a variety of reasons, many of which are inherent to the “no” versus “pro-reform” debate. A number of key members and their staff appear to believe that changes to the current system will damage U.S. national security, while others harbor a lack of faith in the executive branch to stand up to industry and limit liberalization of controls that is detrimental to national security, or believe the United States should not be exporting high-tech products and technologies to China because these items will only benefit the Chinese military. Others are hesitant to take responsibility for the liberalization of controls lest it come to light that unsavory regimes have acquired sensitive U.S. technologies as a result. Still others are likely to oppose the reforms for reasons less about substantive concerns than about not wanting to give the president any national security victories in an election year. Bipartisan support will be difficult to forge.
Even if key members can be convinced to support export control reform, what may seem like perhaps small amendments to existing legislation under the scenario described above would still place a significant onus on Congress to pass sweeping legislation. This will be a heavy lift, especially since the history of congressional action on export controls has been anemic at best. Congress has allowed the EAA to be in lapse since 2001. Multiple bills to reauthorize the statute have gone nowhere. In addition, the AECA would have to be amended in an environment in which defense treaties with two of our closest allies, the United Kingdom and Australia, have languished in the Senate. For export control reform to happen amidst this, in an election year, and among the president’s other priorities, or next year with a newly elected (perhaps Republican-controlled) Congress, means facing virtually insurmountable political hurdles.
In addition, Con |
