House Proposal To Rewrite Export Control Laws: “The Soviet Military Relief Act Of 1990”

Introduction

The House Foreign Affairs Subcommittee on International Economic Policy and Trade begins work today on legislation to rewrite the Export Administration Act (EAA), due to expire later this year. A thirty-six page "mark-up" authored by Chairman Sam Gejdenson (D-CT) will serve as the point of departure for the Committee’s deliberations.

The Gejdenson draft contains twenty-two sections, most of which effect a complete rewrite of the procedures and standards used in controlling goods and technology for national security reasons. In so doing, it dangerously expands the level of Western goods and technology that will be allowed to be exported to the Soviet Union, Eastern Europe and other destinations. Worse yet, the Gejdenson bill — which is replete with micromanaging provisions and negotiating directives that impinge dramatically on presidential authority — fails to take into account the abundant evidence that the Soviet Union has redoubled its efforts to secure currently controlled Western high technology, either directly or through diversions through East European intelligence assets.

Dangerous Provisions

The Gejdenson legislation, entitled "The Export Facilitation Act of 1990," fulfills one part of the Bush Administration’s stated export control policy, namely "placing higher fences around fewer products." In fact, the principal thrust of the legislation is its effort to reduce the number of export-controlled technologies by eliminating existing limits on the transfer of militarily relevant goods and technologies.

Unfortunately, the other, arguably more important element — "higher fences" — is conspicuously missing, despite the numerous, recent revelations of lax enforcement of export controls by such allies as West Germany and Italy. Indeed, notwithstanding all of the attention prompted by the Toshiba scandal in 1987 and focused on the inadequacy of penalties prescribed for the willful violation of export control laws, the maximum penalty recommended in the legislation for such criminals is just 10 years in prison.

Among the more egregious examples of ill-conceived provisions, the bill:

Types of Licenses

• In a major concession to the brutal Chinese regime, it would authorize distribution licenses for exporters to the People’s Republic of China. A distribution license enables an exporter to obtain one license to cover a series of shipments to a broad range of distributors — rather than seek individual validated licenses for each sale. Distribution licenses have heretofore primarily been used in COCOM countries where risks of diversion or unauthorized uses are considered to be lower.

 

• Authorizes distribution licenses for the Soviet Union and other controlled countries. Obviously, the probability of serious strategic diversions under such an authorization are even greater than in China.

 

• Authorizes comprehensive operations license to all destinations, including the Soviet Union. A comprehensive operations license, for example, can include the export of militarily critical technologies controlled for national security reasons.

Exports to COCOM

• All goods and technologies currently controlled, without exception, may be exported to COCOM countries and 5 (k) countries without a license, beginning 30 September 1991. In a tiny sop to prudence, the bill would permit the Secretary of Commerce to make exceptions for certain end-users.

 

• The Secretary cannot exclude a COCOM country, however, from the licence-free zone — even if that country is engaged in a pattern and practice of noncompliance with COCOM agreements — until 30 days after COCOM is notified and its cooperation is requested. This stands the current procedure on its head and makes it very unlikely that such an exclusion could ever occur.

Indexing

• In an utterly ill-conceived and mischievous provision, the Secretary of Commerce shall establish automatic indexing procedures which provide for annual increases in the performance level of goods or technology subject to licensing requirements. Goods or technology that no longer meet the higher performance thresholds shall be decontrolled. In other words, no matter how much damage a technology might do to Western security, it would automatically become decontrolled provided further advances had been made in the field of that technology.

Supercomputer Exports

• The indexing provision is particularly troublesome insofar as it is specifically applied to supercomputers. Under the bill, the Secretary of Commerce is required to establish a performance-based indexing system intended automatically to peg the relaxation of controls in the supercomputer industry to technological advances.

 

• Moreover, no security safeguards at all will be required for the export of any supercomputers with performance capabilities at or below 25 percent of the average of the two most powerful supercomputers available commercially, unless the destination is a controlled country. This will be especially good news for countries interested in acquiring the supercomputing technologies required for nuclear weapons programs, including Iraq, Iran, Libya, Pakistan, India, among others.

The Role of Secretary of Defense

• In perhaps the most gratuitous slap at the legitimate role of the Defense Department in technology security matters — and the most arrogant infringement on U.S. sovereignty — the Gejdenson bill stipulates that COCOM must approve all decisions made by the Secretary of Defense concerning exports to controlled countries.

 

• What is more, the bill limits Defense Department review of licenses for exports of goods and technology only to: (1) the Soviet Union, (2) those Eastern European countries that do not qualify for favorable treatment, and (3) controlled countries where the end-use is other than a civil end-use. The Secretary of Commerce is to be the exclusive judge of what is or is not a "civil" end-use. This would deny the president the benefit of his Secretary of Defense’s counsel on all technology issues falling outside of the designated areas. It would also likely produce a burgeoning of purportedly "civil" end-uses.

Exports to Eastern Europe and Other Countries

• The Secretary of State will be required to negotiate with COCOM to: (1) remove export controls on all goods and technologies below the "PRC Green Line" to all destinations, and (2) obtain a policy of favorable consideration for goods and technologies above the PRC Green Line for civil end-uses to East European countries that have imposed safeguards. This would result in the wholesale decontrol of an array of extremely sensitive strategic technologies to the Soviet Union.

Telecommunications

• The Secretary of State is also directed to negotiate with COCOM an agreement that exports of telecommunications equipment will be allowed to any country for civil end-use. Telecommunications equipment is defined to include optical fibers, optical cables, laser telecommunications equipment, microwave and other radio relay, transmitting, or test equipment, telecommunications transmission, measuring, or test equipment, etc. It goes without saying that such an arrangement would vastly enhance the effectiveness and reliability of Soviet military command, control and communications capabilities. As such, it would represent a devastating blow to NATO’s security and intelligence capabilities.

"Sunset" Provision for the Control List

• All goods and technology controlled for national security reasons would be terminated as of 30 September 1992, except for controlled country destinations. This would dramatically impinge upon the President’s ability to exercise discretion over the transfer of strategic technologies to destinations like Iraq, Libya and Iran.

 

• The Secretary of Commerce can then reinstate controls on an item only after he has determined that the item would make a significant contribution to the military potential of a country or combination of countries that would prove detrimental to the United States and he has published that determination in the Federal Register. This provision is fraught with difficulties and ambiguities, not the least of which is the wholly inappropriate delegation to the Secretary of Commerce of the responsibility to determine which technologies have military potential and what a "significant contribution" to such potential might involve.

Trade Shows

• Any good or technology may be taken by a U.S. exporter to a trade show or for demonstration purposes in any country as long as (1) the U.S. exporter retains title to that good, and (2) the U.S. exporter takes the good or technology out of the country when the trade show is over. This is a laughable arrangement, certain to facilitate the compromise of sensitive technologies.

Publication of COCOM Actions

• The Secretary of Commerce must publish the full text of the International Control List and the full text of any COCOM agreements, notes, understandings, revisions, and U.S. proposals related to the International Control List. To the extent possible, all other COCOM decisions must be published within 30 days after they are made. This provision would effectively preclude confidential deliberations and diplomatic consultations in support of multilateral efforts to maintain an effective allied technology security policy.

Conclusion and Recommendation

The Center believes that provisions such as these warrant extremely careful scrutiny by the full Foreign Affairs Committee and the Congress as a whole. In the latter regard, the Center strongly urges other committees in both the Senate and the House of Representatives — especially the Armed Services and Intelligence Committees — to seek sequential referral of this legislation so as to ensure that due weight is given to the national security and intelligence implications of the proposed rewrite of the Export Administration Act.