RULE, RULE, WHO GETS THE RULE?: WILL RULES COMMITTEE SUPPORT DELLUMS-SPENCE EFFORT TO FIX FLAWED EXPORT CONTROL BILL?

(Washington, D.C.) Amidst all the
highly publicized congressional jockeying
for jurisdiction and control of the
health reform issue, a truly momentous
realignment of power in the House of
Representatives has gone almost
completely unnoticed: the recent
assertion of oversight authority for
national security-related export controls
by the House Armed Services Committee
(HASC). For the first time in memory, the
HASC succeeded this spring in obtaining
sequential referral of legislation, H.R.
3937, emanating from the House Foreign
Affairs Committee (HFAC) that would
overhaul — and eviscerate —
the Export Administration Act.⁽¹⁾

As a result, the Armed
Services Committee was in a position to
provide the sort of “adult
supervision” of U.S. technology
transfer policy that has been so lacking
in recent years. With
astonishing bipartisan support, the HASC
adopted no fewer than thirty-two
amendments to H.R. 3937, substantially
rewriting its key provisions. The
Committee also unanimously issued a
report that sharply criticized the bill’s
principal authors — Reps. Sam Gejdenson
(D-CT) and Toby Roth (R-WI), chairman and
ranking member respectively of the HFAC
Subcommittee on Economic Policy, Trade
and Environment — for “severely
reduc[ing] the scope of current export
controls….[which] have been used to
stop the sale of materials that could
eventually harm U.S. military
personnel.”⁽²⁾

Among the noteworthy improvements to
H.R. 3937 proposed by the Armed Services
Committee were the following:

• Reestablishing a
  Statutory Role for the Secretary
  of Defense in Making Up the
  Control List: Although
  the HFAC version of H.R. 3937
  would have stripped the Secretary
  of Defense of any statutory role
  in compiling the list of goods
  and technologies subject to
  export controls, the
  Armed Services Committee
  amendment reestablishes the
  Defense Secretary’s authority as
  provided in current law.
  Additionally, the HASC bill would
  prevent the Secretary of Commerce
  from deleting items from the
  control list without the
  concurrence of the Secretary of
  Defense. These provisions reflect
  historical experience — namely,
  that the Commerce Department, if
  left to its own devices, would
  approve virtually any
  technology transfer to virtually any
  end-user.
• Restoring the Pentagon
  Responsibility for Reviewing
  Export Licenses: The
  bill reported by the HFAC would
  also have deprived the Secretary
  of Defense of any statutory
  authority to review applications
  for export licenses in order to
  determine whether or not the
  proposed export would enhance the
  military capabilities of American
  foes to the detriment of U.S.
  national security. The
  Armed Services Committee
  responded by giving the Defense
  Secretary assured authority to
  review licenses for products
  related to weapons of mass
  destruction.
• Reestablishing a Sensible
  Standard for Controlling Exports:
  The Foreign Affairs’
  version of H.R. 3937 would have
  required a further narrowing of
  the standard now used to judge
  whether or not an export can be
  controlled. Under the HFAC bill,
  an export would have to be seen
  as posing “a threat to the
  national security,” a
  definition which would be
  difficult to prove in many cases
  and would therefore unduly
  constrain what is already an
  inadequate list of controlled
  technologies. The Armed
  Services Committee restores the
  standard under existing law which
  authorizes export controls for
  goods or technologies which could
  “prove detrimental to the
  national security” of the
  United States.
• Setting More Reasonable
  Deadlines: The HFAC
  substantially constrained the
  time allotted to U.S. government
  agencies involved in the export
  license review process. For
  example, the Commerce Department
  would be given only 10 days
  to act on a license application,
  versus the 60 days provided by
  current law. Although the Armed
  Services Committee retains this
  10-day time constraint for
  licenses which do not require
  referrals to other agencies, the
  HASC would allow an additional 30
  days for licenses which required
  referral to other U.S. government
  agencies. In a limited
  number of precedent-setting
  cases, this time deadline could
  be extended further.
• Adding Sanity to the
  ‘Foreign Availability Provision’:
  The Armed Services Committee’s
  bill would require that the
  Secretary of Defense concur with
  a determination of foreign
  availability made by the
  Secretary of Commerce.
  Since positive findings of
  foreign availability set in train
  a process of permanently
  decontrolling a good or
  technology, such concurrence
  provides an important check on an
  incautious export licensing
  program. Additionally, the Armed
  Services Committee’s amendment
  deletes a ridiculous provision in
  the Foreign Affairs’ bill that
  would have required the Secretary
  of Commerce to decontrol anything
  that would “be available in
  fact within two years in the
  future,” — a highly
  speculative and subjective
  standard. Importantly, the House
  Armed Services Committee also
  reestablishes the burden of proof
  in foreign availability cases
  back to where it belongs, i.e.,
  from the U.S. government to the
  would-be applicant.
• Preventing Automatic
  Decontrol of Computers: Significantly,
  the Armed Services
  Committee bill would prevent the
  Secretary of Commerce from
  automatically decontrolling
  computers and computer technology
  without the concurrence of the
  Secretaries of Defense and
  Energy.
• Providing for Unilateral
  Controls When Needed: The
  Foreign Affairs Committee bill
  would have effectively prevented
  the President from imposing
  unilateral controls as he would
  have been required to certify
  that there were “no other
  alternative means” of
  stopping the transfer abroad of
  the technology or good in
  question. The Armed Services
  Committee amendment provides the
  President with some leeway in
  imposing export controls
  unilaterally by removing the
  excessively stringent “no
  alternative means” standard.
• Preventing Exclusive
  Jurisdiction by Commerce over
  Space Equipment: The
  Armed Services Committee bill
  deletes a provision included in
  the Foreign Affairs’ mark-up that
  would have given the Secretary of
  Commerce exclusive
  jurisdiction over space launch
  equipment — including space
  launch vehicles that are
  indistinguishable from ballistic
  missiles. Such an arrangement
  will only exacerbate an already
  acute problem involving, for
  example, Commerce’s efforts to
  push through approval of the sale
  of a missile “bus”
  capable of being used by China to
  deploy Multiple Independently
  Targetable Reentry Vehicles
  (MIRVs) as well as commercial
  satellites.
• Requiring Licenses for
  Sensitive Exports: The
  Armed Services Committee version
  of the EAA bill would also
  require the President to compile
  a list of the most sensitive
  exports that should be withheld
  from Iran, Iraq, Syria, Libya,
  Cuba and North Korea. Exporters
  wishing to sell any of
  these particular items anywhere
  abroad must obtain licenses
  to do so — improving the
  likelihood that potential
  diversions will be tracked.

The Intelligence Committee
Joins the Fray

Importantly, the House Armed Services
Committee was joined in its effort to
salvage the national security interests
jeopardized by the HFAC version of the
Export Administration Act by the House
Permanent Select Committee on
Intelligence (HPSCI), which also insisted
on a review of the Foreign Affairs’ bill.
On 15 June 1994, the HPSCI addressed two
provisions with dangerous ramifications
for the U.S. intelligence community.

• Preventing Compromising
  of Intelligence: First,
  the Foreign Affairs Committee
  bill would have required the
  Central Intelligence Committee to
  consolidate all of its
  intelligence information bearing
  on controlled end-users and to
  have this material available to
  the Commerce Department in
  computerized form no later than
  the end of this year. The
  House Intelligence Committee
  determined unanimously that this
  provision would not only cause a
  serious drain on CIA resources,
  it would also violate the
  important present requirement
  that such classified information
  remain compartmentalized and
  compromise the protection of
  sources. As a
  consequence, the provision was
  deleted.
• Preventing Decontrol of
  Encryption Technology: Second,
  the Intelligence
  Committee deleted a Foreign
  Affairs Committee provision that
  would have substantially
  decontrolled encryption
  technology viewed as “vital
  to the U.S. intelligence
  community.”⁽³⁾
  The Committee notes, for example
  that “the Committee recently
  received a thorough, classified
  briefing on the damaging
  implications of altering the
  present encryption export control
  regime” and that “the
  Committee on Foreign Affairs does
  not adequately address the
  national security interests put
  at risk by the uncontrolled
  export of encryption.”
  Instead, a study by the President
  on the international encryption
  market is commissioned and
  existing regulatory procedures
  and authorities are kept in
  place.

While there remain serious problems
with the reauthorization of the Export
Administration Act — such as the
creation of a license-free zone for
countries belonging to a multilateral
export control regime (e.g., the Missile
Technology Control regime) — the House
Armed Services Committee, as well as the
House Intelligence Committee, have
brought to bear a long-needed national
security focus to the subject of U.S.
export controls. As the Center for
Security Policy has chronicled over the
past five years, leaving this important
issue exclusively under the jurisdiction
of the House Foreign Affairs Committee
has been a damaging and costly mistake.

Portentous Promises to
Yeltsin

Never has this proposition
been more true, however, than it is at
present. After all, at their
summit on the margins of the Naples
Economic Summit, Russian President Boris
Yeltsin managed to secure a promise from
President Clinton that trade
restrictions on militarily critical
technologies will be lifted against
Russia in time for their next
scheduled rendezvous in Washington, D.C.
in late September. Obviously
well pleased with this pledge of
unprecedented access to state-of-the-art
military and related Western civil
technologies, Yeltsin crowed: “This
time we didn’t ask for money….As a
matter of fact we are a little displeased
at having received not even half of what
was promised to us in Tokyo in 1993, but
that’s not what’s most essential….
We’re saying, ‘Give us equal rights’ [to
trade relations on equal terms.]

The most colorful moment of the press
conference came when Yeltsin claimed he
was due no less than equal treatment
because, as he declared, “I’ve taken
that red, besmirched jacket off of
myself.” While President Yeltsin may
or may not continue to don the figurative
garb of the communist party apparatchik
he was until very recently, it is clear
that many others in the Russian
government find the present moment a
convenient one to dress as wolves in
sheep’s clothing in order to acquire
valuable dual use technology.⁽⁴⁾
Unless corrected through the
formal adoption by the full House of
Representatives of the Armed Services
Committee’s en bloc amendments
to the new Export Administration Act,
this legislation will serve greatly to
exacerbate the dangers posed by President
Clinton’s appalling prospective export
decontrol initiative.

The Bottom Line

The fate of the HASC
amendments, however, lies to a
considerable degree in the hands of the
House Rules Committee. It will meet
Tuesday afternoon to decide under what
circumstances the Armed Services
Committee’s amendments, a substitute
proposed by the Foreign Affairs Committee
and those that might be offered by other
Members of Congress will be in order.
With its decision, the Rules Committee
can do much to create conditions required
to fix H.R. 3937’s myriad defects — or
to fix the HASC’s “wagon” for
presuming to interfere in a wholesale
gutting of the Export Administration Act,
apparently orchestrated by Messrs.
Gejdenson and Roth with the enthusiastic
support of the Clinton Administration.

It can only be hoped that the Rules
Committee will permit a fair and honest
debate on the House Armed Services
Committee’s efforts to
“perfect” the EAA. The
consequences of its failure to do so will
be a perfect disaster:
adversaries around the globe (including,
quite possibly, in Russia) will be better
and more dangerously armed, thanks to
American technology, and Americans will
inevitably be faced with the need for
greater defenses to offset the dire
repercussions of the Clinton
Administration’s reckless abandon of
still-needed U.S. export controls.

– 30 –

1. For an analysis
of the House Foreign Affairs Committee
bill, see the Center’s Decision
Brief, Export Decontrolers Make
the Counter in U.S. Counter-Proliferation
Policy Stand for Counter-Productive
(No. 94-D 60,
14 June 1994).

2. House Armed
Services Committee Report, “Omnibus
Export Administration Act of 1994,”
17 June 1994, Rapt. 103-531, Part 4, p.
11.

3. House
Intelligence Committee Report,
“Omnibus Export Administration Act
of 1994,” 16 June 1994, Rapt.
103-531, Part 2, p. 3.

4. See the
Center’s Decision Brief, Restoration
Watch # 4: A Russian Weimar Republic Is
an Unworthy G-7 Partner, Unreliable Ally
(No. 94-D 70, 8
July 1994).