House Armed Services Committee Needs to Restore, Strengthen Pentagon Role in Critical Export Control Decisions

(Washington, D.C.): Late today, the House Armed Services Committee (HASC) is expected to consider an amendment offered by its chairman, Rep. Bob Stump (R-AZ) to make vitally needed changes to H.R. 2581, the Export Administration Act of 2001. The Committee must adopt the “comprehensive manager’s amendment” Chairman Stump has drawn up if Congress is to avoid making the fight against international proliferation and the effort to prevent terrorists from acquiring weapons of mass destruction (WMD) and their delivery systems even more problematic than it has already become.

Specifically, the Stump Amendment will ensure that the Department of Defense and the President of the United States have the necessary and direct responsibility concerning transfers of sensitive dual-use technologies — not just the Commerce Department, which has hardly ever seen a proposed export that it considered to be too dangerous to U.S. security interests to approve.

Highlights of the Stump Amendment

In a 4 March letter to his HASC colleagues, Rep. Stump illuminated the key “fixes” his amendment will effect. It would:

• Preserve the Military Critical Technologies List (MCTL) created by the original 1979 EAA and charge the Secretary of Defense with responsibility for this list. In addition, improvements would be mandated to DoD’s management of the MCTL.

The MCTL is a list of dual-use technologies vital, as the name suggests, to the U.S. maintaining the military superiority and “qualitative edge” upon which America’s security depends. Such items include: low-observable technologies and jet engine “hot sections.” Under the proposed Amendment, items on the MCTL could not be licensed for export without the approval of the Secretary of Defense, and only the SecDef could add or remove items from the list. What is more, only the President would have the authority to overrule a decision by the Defense Secretary. Neither the Senate version of the EAA (S. 149) nor the version drafted by the House International Relations Committee (H.R. 2581) of the bill reauthorizes the MCTL.

• Enhance the Secretary of Defense’s role in export license approval. Under existing law, the Departments of State, Commerce and Defense grant militarily sensitive licenses in consultation, but the Pentagon is not allowed to exercise a veto over dual-use exports it deems harmful to the national security. This Amendment would require unanimous approval of the three agencies, preserving DOD’s prerogative to raise objections on national security grounds. In those presumably relatively rare instances were the relevant Cabinet officers simply cannot resolve their disagreement, the matter would be presented to the President for his decision.
• Afford the Secretary of Defense a role in determining which countries should be deemed eligible for certain exports and which items could contribute to the military or terrorism potential of a state-sponsor of terrorism.

  The amendment alters the Secretary of Commerce’s basic authority over national security controls in Section 201 to require the concurrence of the Secretary of Defense on such matters, rather than simply his consultation. In addition, it prohibits the President from delegating his authority for assigning countries to export tiers.

In addition, the Stump Amendment deals with a variety of computer- and satellite-related and foreign-availability issues, as well as the establishment of a notification requirement to Congress of changes in the National Security Control List before those changes are implemented.

What is more, it would equip the legislative branch with the information it requires to evaluate such changes: “Under this provision, the chairman or ranking member of the Armed Services Committee (and other committees) would have the right to require a detailed report by the Secretary of Commerce on the proposed change and the justifications for it, along with the Secretary of Defense’s national security assessment, before the change is implemented.”

As Rep. Stump put it in an explanatory summary of his amendment: “In addition to mandating a notification and report requirement for the Congress, the intent of this provision is to require the executive branch to do its homework and have a full understanding of the national security impact of changes in the export status of the item before it is decontrolled….”

How We Got Into this Fix

Ever since the Export Administration Act expired in 1994, there have been repeated efforts to reauthorize it in ways that would seriously weaken the Nation’s national security export control regime in deference to companies anxious to sell their wares to foreign customers. Fortunately, these legislative efforts have heretofore come to naught and the original EAA was simply extended on an annual basis. During President Clinton’s tenure, however, the Administration did immense harm by engaging in successive decontrol initiatives on its own authority. Particularly reprehensible was Mr. Clinton’s deliberate take-down of the only multilateral export control mechanism with teeth: the invaluable Coordinating Committee on Multilateral Export Controls (COCOM).

The war on terrorism has made manifest the need for something more than the interim — and minimalist — licensing and review of controllable items currently administered under the authority of the International Economic Powers Act (IEPA). Even before September 11th, this reality was obvious to many. For example, a study of U.S. exports to the People’s Republic of China undertaken by the Wisconsin Project on Nuclear Arms Proliferation in 1999 disclosed that between 1988 and 1998, “the U.S. Commerce Department approved more than $15 billion worth of strategically sensitive U.S. exports to the People’s Republic of China.”

Things went from bad to worse when President Clinton signed Executive Order 12981 on December 6, 1995. This directive required the Departments of Defense and State, as well as such entities as the National Laboratories, to provide the Secretary of Commerce with a recommendation to approve or deny a license application within 30 days. As a practical matter, rigorous national security reviews of sensitive dual-use technologies often cannot be performed in so short a period of time. Under the Clinton approach, rather than ensure the risks were really understood and avoided where necessary, when the clock ran out, the export license would generally be approved.

The Bottom Line

There is a real — and growing — cost to the U.S. military that is incurred as the qualitative edge upon which it relies is steadily eroded through ill-considered technology transfers. This is especially true in the area of asymmetric warfare, whereby potential enemies acquire hardware and capabilities aimed at defeating, not trying to match, our armed forces’ considerable conventional strengths.

In this connection, it is instructive to recall the impact of Toshiba’s sale of advanced machine tools to the Soviet Union in the 1980s. For a few tens of millions of dollars, the Japanese company and its Norwegian partners gave the Kremlin the capability to reduce dramatically the noise signature of its submarine force. This had the effect of degrading the U.S. Navy’s acoustic anti-submarine warfare capabilities to an extent that the Reagan Pentagon estimated would take over a billion dollars to restore to pre-sale levels.

Needless to say, it is the height of folly in wartime to exclude the Defense Department from deliberations that can result in similar erosion — if not even more egregious degradation — in our qualitative edge. This is especially true if no effort is made to compensate the armed forces for additional costs associated with ill-advised exports of sensitive dual-use technologies. Now more than ever, it should be apparent to every sentient Member of Congress that the Nation literally cannot afford to have export control decisions made exclusively on the basis of the parochial interest of the affected American companies and at the sole discretion of their representatives in the Department of Commerce.

Favorable HASC action on the Stump Amendment, and subsequently that by the full House, will be a litmus test of the Congress’ seriousness about the war on terror.