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292 September 23, 1983 INTRODUCTION In recent years, Soviet bloc countries have been obtaining significant quantities of Western technology that strengthen Soviet military capabilities. Act (EEA) is an essential element of the remedy to this problem. At the h eart of the current congressional debate over amendments to the Act are two issues 1) whether the U.S. government will have the authority to act promptly and effectively to prevent the transfer of militarily relevant technology to the Soviet bloc; and 2) w hether the President will be able to impose economic sanctions in support of the conduct of foreign po1icy.l restricted by the state. However, a hostile Soviet Union and its allies pose a threat to the free world of a Korean Airlines passenger jet highlig hts both the nature of the Soviet challenge as well as the need for a President to have nuanced tools at his command for responding to such incidents. Therefore, the United States must consider the national security and foreign policy impact of its interna tional economic transac- tions. The Soviet Union consistently has sought to obtain mili tarily relevant Western technology by every means possible. Its success has contributed to shifting the military balance away from the West As a result of mistaken lic e nsing, weak enforcement, and illegal Soviet bloc activities, the West has suffered a virtual hemorrhage of technology in the past decade.2 An effective Export Administration Ideally, the free flow of goods and technology should not.be The recent downing T h e Senate will consider S. 979, and the House will debate H.R. 3231 For background on technology transfer to the Soviet Union, see: CIA Soviet Acquisition of Western Technology (Washington, D.C Government Printing Office, 1982); U.S. Congress, Senate, Perm a nent Subcommittee 2 To prevent this from continuing, national security export controls should be strengthened 1) an Office of Strategic Trade should be established 2) enforcement of the export control laws should be turned over to the Customs Service, whi c h has the needed expertise 3) licensing laws must be toughened 4) tech- nology diversion from other Western nations must be reduced via tighter oversight of the transfer of advanced U.S. technology to Western nations 5) U.S. authority to act against compa n ies out- side the U.S.that violate export restrictions must be maintained 6) foreign availability of items under consideration for trans- fer must be judged by strict standards 7) the President's ability to restrict imports as well as exports must be esta b- lished and maintained in order to place more presssure on poten- tial foreign violators of U.S. export controls. Further, presidential authority to implement foreign policy export controls must be maintained. Such controls should not be imposed frivolously, but, properly implemented, they would be effective instruments of U.S. foreign policy. BACKGROUND Prior to World War 11, U.S. export controls were instituted on an ad hoc basis against specified nations. threat emerged after World War 11, the U.S. to ok multilateral and unilateral steps to control exports for security reasons: multi- laterally, the U.S. in 1949 joined with Western European nations to coordinate export controls through the Coordinating Committee (COCOM);3 unilaterally, the Export Contr o l Act of 1949 gave the President substantial powers to restrict or prohibit trade with Communist bloc nations As the Soviet During the 1970s, influenced by detente, the statutes and their administration were relaxed to encourage greater trade with the Sov i et bloc. Current export policy, with respect to foreign policy and security aspects is governed by the Export Administra- tion Act (EAA) of 1979,4 which provides the following on Investigations of the Governmental Affairs Committee, Transfer of United Sta t es High Technology to the Soviet Union and Soviet Bloc Nations, 97th Cong., 2d. sess., November 15, 1982; U.S. Congress, Office of Technology Assessment, Technology and East-West Trade (Washington D.C Government Printing Office, 1979) and Update, May 1983 ; Paige Bryan et al Capitalists and Cokissars Policy Review, Fall 1982 pp. 19-34; Miles Costick, "Strategic Trade, Economic Sanctions and the Security of the Free World in Geoffrey Stewart-Smith, ed., Towards a Grand Strategy for Global Freedom (London Ins titute, 1981). COCOM now consists of the NATO nations (except Iceland and Spain) and Japan. See PL 96-72; 93 Stat. 603 Foreign Affairs Research 3 The President U.S. exports. is delegated authority to control Two types of controls--national security and Un der national security controls, the President foreign policy-are e~tablished is authorized to restrict the export of lldual-uself goods and technology, i.e. non-military items which would make a significant contribution to the military potential of any co u ntry whose strengthening would prove detrimental to the security of the U.S Under foreign policy controls, the President can restrict exports where necessary to further significantly the foreign policy of the U.S. or to fulfill its declared international o bligations Under both types of controls, extraterritorial jurisdiction can be asserted: that is, exports by foreign subsidiaries of U.S. companies of items not made in the U.S. can be restricted, as can the reexport of items to Western nations by non-U.S. companies under contract or license to U.S. companies Under both types of control, the question of whether the goods or technology involved is available from other countries is a relevant factor, but can be overridden by other considerations Fulfillment o f preexisting export contracts can be blocked. NATIONAL SECURITY CONTROLS National security controls are the most important element of the Soviet efforts, via legal and illegal means, to obtain Western technology and the beneficial use that the Soviet bloc has made of this technology are well-documented decade, the Soviets have applied Western technology to make advances in signal processing, command and control systems semi-conductor manufacturing, guidance technology and many other areas.. While no contr ols can be totally leakproof, much more can be done to prevent Soviet bloc acquisition of key products and technology. Ideally, a separate agency should be created with Over the past A third type of control--short supply--is not considered here. Controls o n strictly military items are administered by the Department of State; on items with both military and civilian use ("dual use") by the Department of Commerce 4 responsibility for national security control would be the rationalizing and strengthening of e x isting licensing and enforcement mechanisms, along with the creation of the post of Under Secretary of Commerce for Export Policy and an Office of International Strategic Trade Administration.8 tive would be to establish a White House office for export co n- trol matters to coordinate all U.S. agency policies. National security controls are now managed by the Department of Commerce. Yet there is an inherent institutional conflict between the priority duty of Commerce to promote U.S. exports and its role as licenser and enforcer of export restraints. Department's generally poor record on national security controls is a result of this flaw bility of dealing with export control issues, would result in deserved attention to the security aspects of export policy . would assure a high-level advocate within the Executive Branch to present a security perspective on export issues and to provide independent information and analyses to Congress.lo Second best A third alterna The A new independent agency, with the sole p r iority responsi It STRENGTHENING ENFORCEMENT MEASURES institutions must be strengthened. tration, charged with enforcement responsibility, has not performed effectively. the past two years in remedying past weaknesses, the institutional arguments for shif t ing criminal enforcement responsibility out of Commerce to the U.S. Treasury Department's Customs are strong. The inherent tension between Commerce's role as a promoter of ex- ports and its role as enforcer of export controls means an almost inevitable te n dency to ease up on activities which upset the business community; and Customs has the enforcement experience to do an effective job to Customs, the possession of restricted goods with intent to ex= port them should be criminalized; sentences and fines fo r illegal Creating the new agency will take time. Meanwhile, existing The Office of Export Adminis While Commerce has made extraordinary progress in In addition to giving priority criminal enforcement authority For background on the proposed Office of Stra tegic Trade, see Hearing Before the Senate Banking Committee, February 3, 1983; and S. 434 introduced by Senator Jake Garn (R-Utah). See Paige Bryan, "East/West Trade Controls," in Richard N. Holwill, ed Agenda 83 (Washington, D.C See the testimony of Theo dore L. Thau before the Senate Banking Committee March 2, 1983, pp. 390-449 It is important to note that no system of licensing, or of enforcement and controls can assure a security-minded policy; ultimately, the Administra tion in power will make the cru c ial decisions as to these matters and can override security considerations. See General Accounting Office, "Details of Certain Controversial Export Licensing Decisions Involving Soviet Bloc Countries." Mav 5. 1983 The Heritage Foundation, 1983), p. 51ff l o I 5 diversion should be increased; court authorized surveillance should be expressly permitted when there is probable cause that a violation of technology laws is being committed; the controlled commodities list should be revised; negotiations should be o pened with U.S. allies for the prosecution or extradition of those be lieved to have violated American export laws; and it should be a federal offense to steal, receive, buy or bribe to obtain technol ogy with the intent to export it unlawfully.ll At the s ame time, civil penalties should be maintained. In addition, the President should have the authority to restrict the transfer of items to U.S. diplomatic offices and other entities which are under the controls of countries to which export controls have be en applied. Another area of concern is technological research. conferences and exchanges are tempting targets for the Soviets. The CIA has concluded that over one-third of Soviet scientific pro posals made under joint exchange program auspices would have h ad negative security implications had they been approved. scholarly contacts should be respected, controls, where necessary, should be applied, including 1) classifying information 2) re- stricting communication of technical data to foreign nationals 3) r e quiring prepublication review by the Defense Department for key government financed research 4) establishing voluntary agreements to limit flows of technical data; and 5) limiting access to the U.S. for certain foreign nationals. More attention also shoul d be given to industrial research and all Western na- tions should expel immediately diplomats who engage in industrial spying. Finally, the Administration and Congress must consider how to assure that technology transfers via the sale of a U.S. company to a foreign corporation do not damage U.S. security Scholarly While Improved Licensing Process In the mid-l970s, Congress authorized development of a list of Militarily Critical Technologies (MCTL) to identify items to be restricted for national security re a sons.12 Unfortunately the list is not now fully useful. Priority should be given to completing this task, as well as to the monitoring of newly devel oping technologies. Monitoring new technologies (perhaps by a high-level joint government-industry commit tee) would reveal emerging security problems at an early stage and thus give manu- facturers warning of likely export controls. Also warranting more attention are Soviet technology needs. At little cost, the U.S. can maintain an accurate, timely 'list of t he technologies that the Soviets are likely to seek. The Soviets l1 These suggestions were made by Senator Sam Nunn (D-GA) as a result of oversight hearings by the Senate Permanent Subcommittee on Investigations of the Senate Governmental Affairs Committe e. The "Bucy Report of 1976 called for focusing on "arrays of design and manufacturing know-how," along with equipment incorporating advanced technical data, as opposed to emphasizing finished products per se l2 6 probably will deploy over 200 weapons syst ems in the next decade by analyzing the technology needed for such systems as missile guidance, computer-aided aircraft designs, and submarine and airborne navigation, the U.S. can prevent or 'limit Soviet break throughs by blocking technology transfers i n these areas. Above and beyond procedure, strict U.S. licensing is crucial both because U.S. technology is still the most advanced and because U.S. policy sets the standard for the West. Furthermore technology obsolete by Western standards may be state of the art to the Soviet bloc and capable of helping its military capabilities significantly. security control authority of sales of oil and gas exploration equipment would be consistent with a policy of strict standards A Departme n t of Defense veto under national One suggested licensing reform should be rejected: that an item unilaterally controlled by the U.S i.e. not on the COCOM list or subject to bilateral control agreement) should be totally decontrolled (for the particular co u ntry group and the particular item) after one year if, after an exception to the control is made, no other license applications are received or none are disapproved. The automatic lifting of controls without regard to military considerations would be harm ful to U.S. security. Other Measures Consideration must also be given to how the U.S. can deal with new small-sized technologies, such as microchips, as well as computer tapes, which are difficult to detect when smuggled out of the U.S. or are widely avail able to the public. For example Radio Shack offers computing systems with semiconductor components that are more sophisticated than most of those used in U.S defense systems. A policy that would automatically exempt all embedded microprocessors from contr o ls would not be consistent with U.S. national security interests ity export control process restricted and can assist with enforcement, including counter- espionage efforts private sector but to enhance Western security could join the government in establ i shing a center for technical expertise, which would be on the cutting edge of anticipating potential military applications of emerging technologies The business community can participate in the national secur It can help determine the items to be The obje c t of controls is not to penalize the The private sector RELATIONSHIP OF U.S. AND OTHER WESTERN EXPORT POLICIES In the early postwar years, the effective implementation of U.S. export restrictions was assured by U.S. economic and tech nological dominance. B ut now the export policies of other non Communist nations also must be considered in crafting a national security export control policy questions. Should the U.S. control items available from other sources? Should the U.S. control items exported to friend ly This raises some important i I 7 nations? necessary? Is the unilateral assertion of extraterritorial jurisdiction good policy? Are unilateral controls on COCOM designated items Some supporters of looser national security controls make what is known as t he "foreign availabilityi1 argument. If a particular product or technology is available from a foreign source, they argue, U.S. controls are useless and should not be authorized. Yet even if an item were available elsewhere, it would not necessarily make sense for the U.S. to export that item. The United States is the political and moral leader of the free world, and, choosing the circumstances wisely, occasionally must set an example in order to have effective leverage. There are difficult questions of ju dgment and evaluation regarding "foreign availability.Il tions of such matters as comparability (is the non-U.S. item really the same, or is it only similar quantity (can the non-U.S. producer supply quantities, or resupply, especially in a relatively sho r t time, and is the quantity sufficient to be militarily signi- ficant quality (is the item likely to last as long or be as efficient price (Soviet bloc hard currency problems make this relevant and maintenance It requires subjective evalua In the determin a tion of foreign availability, the burden of proof should be on those seeking an export license. The U.S. government should not have the task of proving that there is not foreign availability. The Department of Defense, moreover, should be involved in eval u ating the foreign availability question. Some critics have suggested loosening the controls even further by re- quiring that national security controls be lifted if the President cannot persuade other nations, within six months, which item in question to s top exporting. This would undercut U.S. leverage completely, as the government in question would know that, if it held out six months, it would no longer be subject to U.S. pres- sure to restrict the item WEST-WEST CONTROLS Many advocates of relaxed expor t controls suggest that restrictions on U.S. exports to non-Communist nations, or at least to fellow COCOM nations, be eliminated or substantially reduced. This should be a long-term policy goal; now it would create national security problems and would sen d mixed signals at a time when the U.S.is urging stricter controls by others. The Soviets acquire much of their technology via illegal diversions from Western nations. Illegal critical technology exports totaled around 1.6 billion in 1980, primarily becaus e non-Communist nations in general had not taken export restric- tions for national security as seriously as they should. The U.S. initiated "detentef1 policy of the 1970s persuaded many West- ern nations that they need not take the Soviet threat seriousl y ; and exports play a substantial role in the economies of many of these nations. 8 There are indications, however, that COCOM nations, at the urging of the U.S are beginning to take more seriously their role as guardians of Western militarily related tech n ology. example, Japan recently expelled a Soviet diplomat (for the first time since World War 11) on charges of technology espionage and is now taking steps to tighten its controls. On July 22, 1983, Britain announced tighter controls on militarily useful technology. By keeping West-West controls tight, the U.S. can be more effective in assuring that the COCOM nations take their obligations seriously. Further, some discretionary authority must remain with the Presi- dent to block sensitive exports that the U.S. may not want to share even with its allies; and maintenance of West-West controls allows the U.S. to monitor the flow of paper that discovers il- legal diversions of U.S. technology. U.S. policy must clarify the right of the Pentagon to review critic a l exports so that it can play a greater role in blocking potential diversion of items For to the Soviet bloc. At the same time, the Pentagon must be sensi- tive to Allied needs for U.S. technology for military purposes while working with U.S. allies to sa feguard its utilization. Western neutral nations which are major recipients of U.S technology (Switzerland, Austria, Sweden, and Finland) account for much of the technology illegally diverted to the Soviet bloc. The credible threat that certain goods or te chnologies might not be exported to these nations is necessary to assure that this pattern will be changed. In late 1982, high U.S. officials stated that the leakage of Western technology from Austria had to stop; they subsequently held up approval of U.S . construction of a much wanted semiconductor plant in Austria. As a result, the Austrian government agreed to tighten its controls; SJitzerland recently levied very heavy fines on companies that illegally diverted items to the East COCOM1 Although its eff e ctiveness has been limited, COCOM, or some equivalent body, remains essential to preventing the hemorrhage of vital technology. COCOM's past weaknesses can be attributed to 1) U.S. failure, especially during the 1970s, to give COCOM suitable priority 2) t h e example set by the U.S. itself during the 1970s, when its own national security export control mechanism deteriorated and when it applied for the single largest number of COCOM exceptions; and (3) the absence of formal leverage to assure full implementa tion by participating governments of decisions made at COCOM. COCOM needs common standards for evaluating licenses, and consideration should be given to ways of modifying COCOM's rule l3 For background on COCOM, see Gary Bertsch, East-West Strategic Trade, COCOM and the Atlantic Alliance (Paris: Atlantic Institute for International Affairs, 1983). 9 of unanimity, so that one nation can no longer block the addition of an item to the COCOM proscribed list. At the same time,'una nimity should be maintained fo r taking an item off the list. Multilateral policing and common sanctions against COCOM regula tion violators should be considered, and the defense ministries of allied nations should be more involved in COCOM decisions. There should be no exceptions allow ed for commercial reasons At a minimum, the COCOM structure must be strengthened. The full-time staff has consisted of only ten to fifteen persons, in a makeshift office. Ministerial-level COCOM meetings, which had not been held for two and a half decades until recently, should be held on a regular basis. Regular follow-ups to the current NATO study on technology should be instituted An international industry-government panel, though unwieldy, might be useful to gain consensus on emerging technologies whos e export should be restricted by COCOM It is argued by some advocates of looser national security controls that unilateral U.S. controls and procedures can be weakened because the same items will be on the COCOM lists and, thus, will be controlled by the U .S. in conformity with a COCOM mandate in any event. The trouble is that a single COCOM member can still block a consensus for restricting a particular item. Without the threat and leverage of possible unilateral U.S. sanc tions, some other Western nations might ignore or, at least, not enforce the controls. While other nations are indeed gaining on the U.S. in technological areas, the U.S. still has the leadership in a variety of goods, production processes and technologies that are of great benefit to th e private sectors of other coun tries commitment to COCOM. Weakening U.S. standards first places the cart before the horse This could provide leverage to obtain a strong Western U.S. ASSERTION OF EXTRATERRITORIAL JURISDICTION Current law gives the Presiden t authority to impose so-called extraterritorial controls when he feels that they are necessary. Such controls are of two types: restrictions on exports of non-U.S. made items by U.S. subsidiaries located abroad and controls on the reexport by non-U.S. com panies located overseas of items originally exported from the U.S. be used sparingly, but they are essential not only to effective export controls but to the effective enforcement of U.S. anti terrorism and anti-boycott laws. Further, the absence of such c ontrols would be an incentive for U.S. businesses to move over seas Such controls should It is unfortunately true that assertion of extraterritorial jurisdiction occasionally may increase political tensions with U.S. allies. Certainly, allied reaction sho u ld be heavily weighed, but it cannot be a determining factor when important U.S. national 10 security or foreign policy interests are at issue.14 argued that the pipeline sanctions would have a severe long-lasting impact upon U.S.-European relations were w rong. Recently, France's Defense Minister Charles Hernu stated that the disagreement "did not leave any scars" and "we do not even speak of it And in their June 1983 communiquk, NATO foreign ministers agreed that economic relations with [the Soviet bloc] must remain consistent with broad allied security concerns." President to require that a foreign company obtain a reexport license to export a specified U.S. origin item to another country. This means that the company has to receive approval from both its government and the U.S until U.S. allies more consistently take into account U.S. security concerns If and when other nations have secure safeguards and tough standards regarding technology diversion, there will be no real need for such action that autho r ity to impose import controls be added to current presidential powers useful addition to U.S. national security export control laws and should be incorporated in the EAA. Specifically, the President should have the option of prohibiting imports from an ov e rseas subsidiary of a U.S. company that violates the law by reexporting U.S. items and from a non-U.S. company outside the U.S. that violates U.S. or COCOM restrictions. Appropriate monitoring and enforcement mechanisms will also be needed. Given that the U.S is the world's largest market, such a potential sanction should prove very effective Those who With respect to reexport controls, the EAA permits the This provision should remain in force Extraterritoriality is a means to an end A new extraterritorial issue has developed with the suggestion This is a significant and potentially FOREIGN POLICY CONTROLS Foreign policy export controls, while not as directly related to the military security of the U.S. as national security controls are nonetheless an impor t ant tool for the President. Export controls (aside from setting a moral example), as Undersecretary of Commerce Lionel Olmer has suggested, can deter future actions mobilize international support against certain behavior; impose economic cost on the targe t ed nation; and express disapproval of another nation's policies. .Further, the President must have the ability to conduct policy through a variety of means construction of the Siberian pipeline 2) compelled the USSR to allocate scarce resources between pr i ority domestic projects and The Soviet pipeline sanctions, for example 1) delayed the l4 The U.S. ambassador to the Conference on Security and Cooperation talks Max Kampelman, has pointed out that "there is a tendency to end up some times with the lowest c ommon denominator" in working with the allies and that "we must continue to maintain our standards and exercise our judgment and express what is in our best interests without necessarily waiting for consensus in Europe, December 28, 1981, p. 40; Washingto n Post, January 20, 1983. Testimony before the Commission on Security and Cooperation 11 the export pipeline 3) gave the Europeans an opportunity to view of the soft assess- alternative energy- supply options in petroleum and gas market and possibly preven t further reliance on Soviet gas 4) gained European cooperation for a more coor dinated approach toward East-West trade cooperative on a coordinated economic policy toward the Soviet bloc because, not in spite of, the sanctions Europeans are now more Unde r current law, the President must llconsiderll six criteria in deciding whether to authorize foreign policy controls A suggestion has been made that the President must ltdeterminell that all six tests have in fact been met inadvisable or ability to weigh, c ompeting factors. In any event, the dis- tinction between foreign policy and national security is a fine one, and undue restrictions on foreign policy controls will merely encourage a President to use a national security justifi cation Such a requirement i s The President would have no discretion concerning Contract sanctity Some critics argue that export controls should not be applied to contracts already in effect tracts can be unfair, but is justifiable, if important national security or foreign policy i n terests of the U.S. are served. Not maintaining this authority would mean that the President would be powerless to act promptly and effectively should it be discovered that a particular item's export would be damaging to Western security or would be shipp ed to a country which has openly aided a heinous terrorist act. Thus an exception to contract sanctity for significant problems such as terrorism is the minimum that should be provided Private sector concerns can be accommodated in two ways. First it can be stipulated that short-term contracts, below a certain volume or dollar amount, could be carried out unless the President determines that extraordinary circumstances dictate otherwise. Second, businesses, which have made expenditures with r e spect to a contract that cannot be carried out or is abrogated should be allowed to recover their expenses by means of tax deduc tions; alternatively, insurance systems could be established for such contingencies. U.S. allies could take similar action. Ce r tainly, companies should always be put on notice that contract suspension is a possibility in certain situations. Advocates of total contract sanctity for foreign policy con trols suggest that the President could use new authority expanding the scope of the International Economic Powers Act to achieve the desired result of voiding existing contracts. While this would be better than nothing, it would expand needlessly the meaning of I1emergency1' beyond what it properly should be, and could raise serious l egal questions The abrogation of existing con CONCLUSION protecting U.S. interests. Some argue that crucial items will reach the Soviet bloc eventually anyway and that, therefore National security export controls are an important means ofignores the delay the absorp Soviet bloc 12 tisht controls are not warranted or useful. This principal benefit of controls, which is that they tion of new militarily relevant technology by the In the past, there was an eight- to ten-year technology acquisi tion gap from We s t to East, but that has already been reduced substantially, and in some instances the Soviet bloc is applying Western dual-use technology for military purposes even before the West does.15 Given the Soviet bloc conventional advantage in Europe and the inc r easing Western emphasis on new technologies to counterbalance the large Soviet quantitative advantage, controls are even more necessary than heretofore. Further, each Soviet bloc I technological breakthrough results in huge added costs to NATO nations for countermeasures i On the broadest plane, both national security and foreign policy controls must be seen within the context of the overall East-West struggle. The looser export controls of the detente era did not, as predicted by its formulators, result i n more responsible Soviet behavior; instead, security related exports were use to build up the Soviet bloc's military capability, and other trade was used to escape the consequences of disastrous economic policies. Given current Soviet conduct it should be the policy of the U.S. (and a consensus of Western nations) to restrict dual-use goods or technology and to give the President the option to limit trade for foreign policy reasons, such as the Soviet invasion of Afghanistan or the imposition of martial l a w by the Polish govern- ment all relations among nations. The export policies of the United States therefore cannot be considered solely in the context of ordinary business concerns, important though they may be.16 The context must be broadened to include U.S. security and Soviet behavior. Under present conditions, the correct policy is to err, if at all, on the side of protecting Western security and granting the President foreign policy authority and flexibility Economic matters are an increasingly impor tant aspect of over W. Bruce Weinrod Director of Foreign Policy and Defense Studies Juliana Geran Pilon, Ph.D. Policy Analyst l5 l6 For the latest discussion of this matter, see "Interview with Assistant Air Force Secretary Tidal McCoy," Current News, Part 2, July 15, 1983, p. 15 Private sector concerns should be accommodated to the extent consistent with security and foreign policy requirements. But it is also true that export controls affect a relatively small percentage of U.S. exports foreign policy co ntrols affected less than one percent of the 140 bil lion in U.S. manufactures exported in 1982 and are applied infrequently.
292 September 23, 1983 INTRODUCTION In recent years, Soviet bloc countries have been obtaining significant quantities of Western technology that strengthen Soviet military capabilities. Act (EEA) is an essential element of the remedy to this problem. At the h eart of the current congressional debate over amendments to the Act are two issues 1) whether the U.S. government will have the authority to act promptly and effectively to prevent the transfer of militarily relevant technology to the Soviet bloc; and 2) w hether the President will be able to impose economic sanctions in support of the conduct of foreign po1icy.l restricted by the state. However, a hostile Soviet Union and its allies pose a threat to the free world of a Korean Airlines passenger jet highlig hts both the nature of the Soviet challenge as well as the need for a President to have nuanced tools at his command for responding to such incidents. Therefore, the United States must consider the national security and foreign policy impact of its interna tional economic transac- tions. The Soviet Union consistently has sought to obtain mili tarily relevant Western technology by every means possible. Its success has contributed to shifting the military balance away from the West As a result of mistaken lic e nsing, weak enforcement, and illegal Soviet bloc activities, the West has suffered a virtual hemorrhage of technology in the past decade.2 An effective Export Administration Ideally, the free flow of goods and technology should not.be The recent downing T h e Senate will consider S. 979, and the House will debate H.R. 3231 For background on technology transfer to the Soviet Union, see: CIA Soviet Acquisition of Western Technology (Washington, D.C Government Printing Office, 1982); U.S. Congress, Senate, Perm a nent Subcommittee 2 To prevent this from continuing, national security export controls should be strengthened 1) an Office of Strategic Trade should be established 2) enforcement of the export control laws should be turned over to the Customs Service, whi c h has the needed expertise 3) licensing laws must be toughened 4) tech- nology diversion from other Western nations must be reduced via tighter oversight of the transfer of advanced U.S. technology to Western nations 5) U.S. authority to act against compa n ies out- side the U.S.that violate export restrictions must be maintained 6) foreign availability of items under consideration for trans- fer must be judged by strict standards 7) the President's ability to restrict imports as well as exports must be esta b- lished and maintained in order to place more presssure on poten- tial foreign violators of U.S. export controls. Further, presidential authority to implement foreign policy export controls must be maintained. Such controls should not be imposed frivolously, but, properly implemented, they would be effective instruments of U.S. foreign policy. BACKGROUND Prior to World War 11, U.S. export controls were instituted on an ad hoc basis against specified nations. threat emerged after World War 11, the U.S. to ok multilateral and unilateral steps to control exports for security reasons: multi- laterally, the U.S. in 1949 joined with Western European nations to coordinate export controls through the Coordinating Committee (COCOM);3 unilaterally, the Export Contr o l Act of 1949 gave the President substantial powers to restrict or prohibit trade with Communist bloc nations As the Soviet During the 1970s, influenced by detente, the statutes and their administration were relaxed to encourage greater trade with the Sov i et bloc. Current export policy, with respect to foreign policy and security aspects is governed by the Export Administra- tion Act (EAA) of 1979,4 which provides the following on Investigations of the Governmental Affairs Committee, Transfer of United Sta t es High Technology to the Soviet Union and Soviet Bloc Nations, 97th Cong., 2d. sess., November 15, 1982; U.S. Congress, Office of Technology Assessment, Technology and East-West Trade (Washington D.C Government Printing Office, 1979) and Update, May 1983 ; Paige Bryan et al Capitalists and Cokissars Policy Review, Fall 1982 pp. 19-34; Miles Costick, "Strategic Trade, Economic Sanctions and the Security of the Free World in Geoffrey Stewart-Smith, ed., Towards a Grand Strategy for Global Freedom (London Ins titute, 1981). COCOM now consists of the NATO nations (except Iceland and Spain) and Japan. See PL 96-72; 93 Stat. 603 Foreign Affairs Research 3 The President U.S. exports. is delegated authority to control Two types of controls--national security and Un der national security controls, the President foreign policy-are e~tablished is authorized to restrict the export of lldual-uself goods and technology, i.e. non-military items which would make a significant contribution to the military potential of any co u ntry whose strengthening would prove detrimental to the security of the U.S Under foreign policy controls, the President can restrict exports where necessary to further significantly the foreign policy of the U.S. or to fulfill its declared international o bligations Under both types of controls, extraterritorial jurisdiction can be asserted: that is, exports by foreign subsidiaries of U.S. companies of items not made in the U.S. can be restricted, as can the reexport of items to Western nations by non-U.S. companies under contract or license to U.S. companies Under both types of control, the question of whether the goods or technology involved is available from other countries is a relevant factor, but can be overridden by other considerations Fulfillment o f preexisting export contracts can be blocked. NATIONAL SECURITY CONTROLS National security controls are the most important element of the Soviet efforts, via legal and illegal means, to obtain Western technology and the beneficial use that the Soviet bloc has made of this technology are well-documented decade, the Soviets have applied Western technology to make advances in signal processing, command and control systems semi-conductor manufacturing, guidance technology and many other areas.. While no contr ols can be totally leakproof, much more can be done to prevent Soviet bloc acquisition of key products and technology. Ideally, a separate agency should be created with Over the past A third type of control--short supply--is not considered here. Controls o n strictly military items are administered by the Department of State; on items with both military and civilian use ("dual use") by the Department of Commerce 4 responsibility for national security control would be the rationalizing and strengthening of e x isting licensing and enforcement mechanisms, along with the creation of the post of Under Secretary of Commerce for Export Policy and an Office of International Strategic Trade Administration.8 tive would be to establish a White House office for export co n- trol matters to coordinate all U.S. agency policies. National security controls are now managed by the Department of Commerce. Yet there is an inherent institutional conflict between the priority duty of Commerce to promote U.S. exports and its role as licenser and enforcer of export restraints. Department's generally poor record on national security controls is a result of this flaw bility of dealing with export control issues, would result in deserved attention to the security aspects of export policy . would assure a high-level advocate within the Executive Branch to present a security perspective on export issues and to provide independent information and analyses to Congress.lo Second best A third alterna The A new independent agency, with the sole p r iority responsi It STRENGTHENING ENFORCEMENT MEASURES institutions must be strengthened. tration, charged with enforcement responsibility, has not performed effectively. the past two years in remedying past weaknesses, the institutional arguments for shif t ing criminal enforcement responsibility out of Commerce to the U.S. Treasury Department's Customs are strong. The inherent tension between Commerce's role as a promoter of ex- ports and its role as enforcer of export controls means an almost inevitable te n dency to ease up on activities which upset the business community; and Customs has the enforcement experience to do an effective job to Customs, the possession of restricted goods with intent to ex= port them should be criminalized; sentences and fines fo r illegal Creating the new agency will take time. Meanwhile, existing The Office of Export Adminis While Commerce has made extraordinary progress in In addition to giving priority criminal enforcement authority For background on the proposed Office of Stra tegic Trade, see Hearing Before the Senate Banking Committee, February 3, 1983; and S. 434 introduced by Senator Jake Garn (R-Utah). See Paige Bryan, "East/West Trade Controls," in Richard N. Holwill, ed Agenda 83 (Washington, D.C See the testimony of Theo dore L. Thau before the Senate Banking Committee March 2, 1983, pp. 390-449 It is important to note that no system of licensing, or of enforcement and controls can assure a security-minded policy; ultimately, the Administra tion in power will make the cru c ial decisions as to these matters and can override security considerations. See General Accounting Office, "Details of Certain Controversial Export Licensing Decisions Involving Soviet Bloc Countries." Mav 5. 1983 The Heritage Foundation, 1983), p. 51ff l o I 5 diversion should be increased; court authorized surveillance should be expressly permitted when there is probable cause that a violation of technology laws is being committed; the controlled commodities list should be revised; negotiations should be o pened with U.S. allies for the prosecution or extradition of those be lieved to have violated American export laws; and it should be a federal offense to steal, receive, buy or bribe to obtain technol ogy with the intent to export it unlawfully.ll At the s ame time, civil penalties should be maintained. In addition, the President should have the authority to restrict the transfer of items to U.S. diplomatic offices and other entities which are under the controls of countries to which export controls have be en applied. Another area of concern is technological research. conferences and exchanges are tempting targets for the Soviets. The CIA has concluded that over one-third of Soviet scientific pro posals made under joint exchange program auspices would have h ad negative security implications had they been approved. scholarly contacts should be respected, controls, where necessary, should be applied, including 1) classifying information 2) re- stricting communication of technical data to foreign nationals 3) r e quiring prepublication review by the Defense Department for key government financed research 4) establishing voluntary agreements to limit flows of technical data; and 5) limiting access to the U.S. for certain foreign nationals. More attention also shoul d be given to industrial research and all Western na- tions should expel immediately diplomats who engage in industrial spying. Finally, the Administration and Congress must consider how to assure that technology transfers via the sale of a U.S. company to a foreign corporation do not damage U.S. security Scholarly While Improved Licensing Process In the mid-l970s, Congress authorized development of a list of Militarily Critical Technologies (MCTL) to identify items to be restricted for national security re a sons.12 Unfortunately the list is not now fully useful. Priority should be given to completing this task, as well as to the monitoring of newly devel oping technologies. Monitoring new technologies (perhaps by a high-level joint government-industry commit tee) would reveal emerging security problems at an early stage and thus give manu- facturers warning of likely export controls. Also warranting more attention are Soviet technology needs. At little cost, the U.S. can maintain an accurate, timely 'list of t he technologies that the Soviets are likely to seek. The Soviets l1 These suggestions were made by Senator Sam Nunn (D-GA) as a result of oversight hearings by the Senate Permanent Subcommittee on Investigations of the Senate Governmental Affairs Committe e. The "Bucy Report of 1976 called for focusing on "arrays of design and manufacturing know-how," along with equipment incorporating advanced technical data, as opposed to emphasizing finished products per se l2 6 probably will deploy over 200 weapons syst ems in the next decade by analyzing the technology needed for such systems as missile guidance, computer-aided aircraft designs, and submarine and airborne navigation, the U.S. can prevent or 'limit Soviet break throughs by blocking technology transfers i n these areas. Above and beyond procedure, strict U.S. licensing is crucial both because U.S. technology is still the most advanced and because U.S. policy sets the standard for the West. Furthermore technology obsolete by Western standards may be state of the art to the Soviet bloc and capable of helping its military capabilities significantly. security control authority of sales of oil and gas exploration equipment would be consistent with a policy of strict standards A Departme n t of Defense veto under national One suggested licensing reform should be rejected: that an item unilaterally controlled by the U.S i.e. not on the COCOM list or subject to bilateral control agreement) should be totally decontrolled (for the particular co u ntry group and the particular item) after one year if, after an exception to the control is made, no other license applications are received or none are disapproved. The automatic lifting of controls without regard to military considerations would be harm ful to U.S. security. Other Measures Consideration must also be given to how the U.S. can deal with new small-sized technologies, such as microchips, as well as computer tapes, which are difficult to detect when smuggled out of the U.S. or are widely avail able to the public. For example Radio Shack offers computing systems with semiconductor components that are more sophisticated than most of those used in U.S defense systems. A policy that would automatically exempt all embedded microprocessors from contr o ls would not be consistent with U.S. national security interests ity export control process restricted and can assist with enforcement, including counter- espionage efforts private sector but to enhance Western security could join the government in establ i shing a center for technical expertise, which would be on the cutting edge of anticipating potential military applications of emerging technologies The business community can participate in the national secur It can help determine the items to be The obje c t of controls is not to penalize the The private sector RELATIONSHIP OF U.S. AND OTHER WESTERN EXPORT POLICIES In the early postwar years, the effective implementation of U.S. export restrictions was assured by U.S. economic and tech nological dominance. B ut now the export policies of other non Communist nations also must be considered in crafting a national security export control policy questions. Should the U.S. control items available from other sources? Should the U.S. control items exported to friend ly This raises some important i I 7 nations? necessary? Is the unilateral assertion of extraterritorial jurisdiction good policy? Are unilateral controls on COCOM designated items Some supporters of looser national security controls make what is known as t he "foreign availabilityi1 argument. If a particular product or technology is available from a foreign source, they argue, U.S. controls are useless and should not be authorized. Yet even if an item were available elsewhere, it would not necessarily make sense for the U.S. to export that item. The United States is the political and moral leader of the free world, and, choosing the circumstances wisely, occasionally must set an example in order to have effective leverage. There are difficult questions of ju dgment and evaluation regarding "foreign availability.Il tions of such matters as comparability (is the non-U.S. item really the same, or is it only similar quantity (can the non-U.S. producer supply quantities, or resupply, especially in a relatively sho r t time, and is the quantity sufficient to be militarily signi- ficant quality (is the item likely to last as long or be as efficient price (Soviet bloc hard currency problems make this relevant and maintenance It requires subjective evalua In the determin a tion of foreign availability, the burden of proof should be on those seeking an export license. The U.S. government should not have the task of proving that there is not foreign availability. The Department of Defense, moreover, should be involved in eval u ating the foreign availability question. Some critics have suggested loosening the controls even further by re- quiring that national security controls be lifted if the President cannot persuade other nations, within six months, which item in question to s top exporting. This would undercut U.S. leverage completely, as the government in question would know that, if it held out six months, it would no longer be subject to U.S. pres- sure to restrict the item WEST-WEST CONTROLS Many advocates of relaxed expor t controls suggest that restrictions on U.S. exports to non-Communist nations, or at least to fellow COCOM nations, be eliminated or substantially reduced. This should be a long-term policy goal; now it would create national security problems and would sen d mixed signals at a time when the U.S.is urging stricter controls by others. The Soviets acquire much of their technology via illegal diversions from Western nations. Illegal critical technology exports totaled around 1.6 billion in 1980, primarily becaus e non-Communist nations in general had not taken export restric- tions for national security as seriously as they should. The U.S. initiated "detentef1 policy of the 1970s persuaded many West- ern nations that they need not take the Soviet threat seriousl y ; and exports play a substantial role in the economies of many of these nations. 8 There are indications, however, that COCOM nations, at the urging of the U.S are beginning to take more seriously their role as guardians of Western militarily related tech n ology. example, Japan recently expelled a Soviet diplomat (for the first time since World War 11) on charges of technology espionage and is now taking steps to tighten its controls. On July 22, 1983, Britain announced tighter controls on militarily useful technology. By keeping West-West controls tight, the U.S. can be more effective in assuring that the COCOM nations take their obligations seriously. Further, some discretionary authority must remain with the Presi- dent to block sensitive exports that the U.S. may not want to share even with its allies; and maintenance of West-West controls allows the U.S. to monitor the flow of paper that discovers il- legal diversions of U.S. technology. U.S. policy must clarify the right of the Pentagon to review critic a l exports so that it can play a greater role in blocking potential diversion of items For to the Soviet bloc. At the same time, the Pentagon must be sensi- tive to Allied needs for U.S. technology for military purposes while working with U.S. allies to sa feguard its utilization. Western neutral nations which are major recipients of U.S technology (Switzerland, Austria, Sweden, and Finland) account for much of the technology illegally diverted to the Soviet bloc. The credible threat that certain goods or te chnologies might not be exported to these nations is necessary to assure that this pattern will be changed. In late 1982, high U.S. officials stated that the leakage of Western technology from Austria had to stop; they subsequently held up approval of U.S . construction of a much wanted semiconductor plant in Austria. As a result, the Austrian government agreed to tighten its controls; SJitzerland recently levied very heavy fines on companies that illegally diverted items to the East COCOM1 Although its eff e ctiveness has been limited, COCOM, or some equivalent body, remains essential to preventing the hemorrhage of vital technology. COCOM's past weaknesses can be attributed to 1) U.S. failure, especially during the 1970s, to give COCOM suitable priority 2) t h e example set by the U.S. itself during the 1970s, when its own national security export control mechanism deteriorated and when it applied for the single largest number of COCOM exceptions; and (3) the absence of formal leverage to assure full implementa tion by participating governments of decisions made at COCOM. COCOM needs common standards for evaluating licenses, and consideration should be given to ways of modifying COCOM's rule l3 For background on COCOM, see Gary Bertsch, East-West Strategic Trade, COCOM and the Atlantic Alliance (Paris: Atlantic Institute for International Affairs, 1983). 9 of unanimity, so that one nation can no longer block the addition of an item to the COCOM proscribed list. At the same time,'una nimity should be maintained fo r taking an item off the list. Multilateral policing and common sanctions against COCOM regula tion violators should be considered, and the defense ministries of allied nations should be more involved in COCOM decisions. There should be no exceptions allow ed for commercial reasons At a minimum, the COCOM structure must be strengthened. The full-time staff has consisted of only ten to fifteen persons, in a makeshift office. Ministerial-level COCOM meetings, which had not been held for two and a half decades until recently, should be held on a regular basis. Regular follow-ups to the current NATO study on technology should be instituted An international industry-government panel, though unwieldy, might be useful to gain consensus on emerging technologies whos e export should be restricted by COCOM It is argued by some advocates of looser national security controls that unilateral U.S. controls and procedures can be weakened because the same items will be on the COCOM lists and, thus, will be controlled by the U .S. in conformity with a COCOM mandate in any event. The trouble is that a single COCOM member can still block a consensus for restricting a particular item. Without the threat and leverage of possible unilateral U.S. sanc tions, some other Western nations might ignore or, at least, not enforce the controls. While other nations are indeed gaining on the U.S. in technological areas, the U.S. still has the leadership in a variety of goods, production processes and technologies that are of great benefit to th e private sectors of other coun tries commitment to COCOM. Weakening U.S. standards first places the cart before the horse This could provide leverage to obtain a strong Western U.S. ASSERTION OF EXTRATERRITORIAL JURISDICTION Current law gives the Presiden t authority to impose so-called extraterritorial controls when he feels that they are necessary. Such controls are of two types: restrictions on exports of non-U.S. made items by U.S. subsidiaries located abroad and controls on the reexport by non-U.S. com panies located overseas of items originally exported from the U.S. be used sparingly, but they are essential not only to effective export controls but to the effective enforcement of U.S. anti terrorism and anti-boycott laws. Further, the absence of such c ontrols would be an incentive for U.S. businesses to move over seas Such controls should It is unfortunately true that assertion of extraterritorial jurisdiction occasionally may increase political tensions with U.S. allies. Certainly, allied reaction sho u ld be heavily weighed, but it cannot be a determining factor when important U.S. national 10 security or foreign policy interests are at issue.14 argued that the pipeline sanctions would have a severe long-lasting impact upon U.S.-European relations were w rong. Recently, France's Defense Minister Charles Hernu stated that the disagreement "did not leave any scars" and "we do not even speak of it And in their June 1983 communiquk, NATO foreign ministers agreed that economic relations with [the Soviet bloc] must remain consistent with broad allied security concerns." President to require that a foreign company obtain a reexport license to export a specified U.S. origin item to another country. This means that the company has to receive approval from both its government and the U.S until U.S. allies more consistently take into account U.S. security concerns If and when other nations have secure safeguards and tough standards regarding technology diversion, there will be no real need for such action that autho r ity to impose import controls be added to current presidential powers useful addition to U.S. national security export control laws and should be incorporated in the EAA. Specifically, the President should have the option of prohibiting imports from an ov e rseas subsidiary of a U.S. company that violates the law by reexporting U.S. items and from a non-U.S. company outside the U.S. that violates U.S. or COCOM restrictions. Appropriate monitoring and enforcement mechanisms will also be needed. Given that the U.S is the world's largest market, such a potential sanction should prove very effective Those who With respect to reexport controls, the EAA permits the This provision should remain in force Extraterritoriality is a means to an end A new extraterritorial issue has developed with the suggestion This is a significant and potentially FOREIGN POLICY CONTROLS Foreign policy export controls, while not as directly related to the military security of the U.S. as national security controls are nonetheless an impor t ant tool for the President. Export controls (aside from setting a moral example), as Undersecretary of Commerce Lionel Olmer has suggested, can deter future actions mobilize international support against certain behavior; impose economic cost on the targe t ed nation; and express disapproval of another nation's policies. .Further, the President must have the ability to conduct policy through a variety of means construction of the Siberian pipeline 2) compelled the USSR to allocate scarce resources between pr i ority domestic projects and The Soviet pipeline sanctions, for example 1) delayed the l4 The U.S. ambassador to the Conference on Security and Cooperation talks Max Kampelman, has pointed out that "there is a tendency to end up some times with the lowest c ommon denominator" in working with the allies and that "we must continue to maintain our standards and exercise our judgment and express what is in our best interests without necessarily waiting for consensus in Europe, December 28, 1981, p. 40; Washingto n Post, January 20, 1983. Testimony before the Commission on Security and Cooperation 11 the export pipeline 3) gave the Europeans an opportunity to view of the soft assess- alternative energy- supply options in petroleum and gas market and possibly preven t further reliance on Soviet gas 4) gained European cooperation for a more coor dinated approach toward East-West trade cooperative on a coordinated economic policy toward the Soviet bloc because, not in spite of, the sanctions Europeans are now more Unde r current law, the President must llconsiderll six criteria in deciding whether to authorize foreign policy controls A suggestion has been made that the President must ltdeterminell that all six tests have in fact been met inadvisable or ability to weigh, c ompeting factors. In any event, the dis- tinction between foreign policy and national security is a fine one, and undue restrictions on foreign policy controls will merely encourage a President to use a national security justifi cation Such a requirement i s The President would have no discretion concerning Contract sanctity Some critics argue that export controls should not be applied to contracts already in effect tracts can be unfair, but is justifiable, if important national security or foreign policy i n terests of the U.S. are served. Not maintaining this authority would mean that the President would be powerless to act promptly and effectively should it be discovered that a particular item's export would be damaging to Western security or would be shipp ed to a country which has openly aided a heinous terrorist act. Thus an exception to contract sanctity for significant problems such as terrorism is the minimum that should be provided Private sector concerns can be accommodated in two ways. First it can be stipulated that short-term contracts, below a certain volume or dollar amount, could be carried out unless the President determines that extraordinary circumstances dictate otherwise. Second, businesses, which have made expenditures with r e spect to a contract that cannot be carried out or is abrogated should be allowed to recover their expenses by means of tax deduc tions; alternatively, insurance systems could be established for such contingencies. U.S. allies could take similar action. Ce r tainly, companies should always be put on notice that contract suspension is a possibility in certain situations. Advocates of total contract sanctity for foreign policy con trols suggest that the President could use new authority expanding the scope of the International Economic Powers Act to achieve the desired result of voiding existing contracts. While this would be better than nothing, it would expand needlessly the meaning of I1emergency1' beyond what it properly should be, and could raise serious l egal questions The abrogation of existing con CONCLUSION protecting U.S. interests. Some argue that crucial items will reach the Soviet bloc eventually anyway and that, therefore National security export controls are an important means ofignores the delay the absorp Soviet bloc 12 tisht controls are not warranted or useful. This principal benefit of controls, which is that they tion of new militarily relevant technology by the In the past, there was an eight- to ten-year technology acquisi tion gap from We s t to East, but that has already been reduced substantially, and in some instances the Soviet bloc is applying Western dual-use technology for military purposes even before the West does.15 Given the Soviet bloc conventional advantage in Europe and the inc r easing Western emphasis on new technologies to counterbalance the large Soviet quantitative advantage, controls are even more necessary than heretofore. Further, each Soviet bloc I technological breakthrough results in huge added costs to NATO nations for countermeasures i On the broadest plane, both national security and foreign policy controls must be seen within the context of the overall East-West struggle. The looser export controls of the detente era did not, as predicted by its formulators, result i n more responsible Soviet behavior; instead, security related exports were use to build up the Soviet bloc's military capability, and other trade was used to escape the consequences of disastrous economic policies. Given current Soviet conduct it should be the policy of the U.S. (and a consensus of Western nations) to restrict dual-use goods or technology and to give the President the option to limit trade for foreign policy reasons, such as the Soviet invasion of Afghanistan or the imposition of martial l a w by the Polish govern- ment all relations among nations. The export policies of the United States therefore cannot be considered solely in the context of ordinary business concerns, important though they may be.16 The context must be broadened to include U.S. security and Soviet behavior. Under present conditions, the correct policy is to err, if at all, on the side of protecting Western security and granting the President foreign policy authority and flexibility Economic matters are an increasingly impor tant aspect of over W. Bruce Weinrod Director of Foreign Policy and Defense Studies Juliana Geran Pilon, Ph.D. Policy Analyst l5 l6 For the latest discussion of this matter, see "Interview with Assistant Air Force Secretary Tidal McCoy," Current News, Part 2, July 15, 1983, p. 15 Private sector concerns should be accommodated to the extent consistent with security and foreign policy requirements. But it is also true that export controls affect a relatively small percentage of U.S. exports foreign policy co ntrols affected less than one percent of the 140 bil lion in U.S. manufactures exported in 1982 and are applied infrequently.
