An Export Control Potemkin Village

For weeks now numerous Obama Administration officials have been delivering speeches that they are busy at work reforming what they call “outdated” U.S. export control laws.  Outside input has been limited to a very select group of industry and like-minded academic types. Even key Congressional Committees have been kept out of the substantive loop.

Better the devil you know than the devil you don’t. This reform process has not only set the wrong tone, but has inspired little confidence if what is coming any better than the procedures that are in place today.  There is nothing more pernicious in a democracy than decisions made in secret that need not be.

Export control laws, regulations, and processes will never be as clear-cut and dry as, say, criminal law or contracts. The balancing act that must be done by the government is not an easy one.  Choosing between pure security and commercial equities is not an easy chore. Some of us are comfortable with these shades of gray so long as we feel that our clients are getting a fair and reasonable consideration by the agency in question.

While many speeches have been made, little has been said.  Frankly, most of the commentary is demonization of current laws and regulations.  Just because a law is old does not make it bad.  Think Constitution.  And the few nuggets that fall out from what sounds like a reform grab bag fail to get to the heart of the changes that are needed that in addition to transparency, must include a better use of taxpayer resources to enforce current laws and regulations.

Creating a single and independent agency to deal with export controls makes as much sense as creating the Office of the Director of National Intelligence (ODNI) in 2004.  In the case of the ODNI, rather than creating a new costly government agency, the Congress should have allocated more funds and tasking authorities to the Director of Central Intelligence (DCI).  Rooted in the National Security Act of 1947, the DCI has always been the DNI but never received full support to do its job well.

Without substantive reform that empowers one of the current agencies to do this job and do it well, moving administrative boxes, creating a single control list as well as what seems to be an export control enforcement fusion center, could be nothing more than an export control Potemkin Village – reform in name only.  In the long-term, such an approach will make things more confusing for folks and companies that need to comply with these rules.  It can also hurt the legal premise for these laws, protecting U.S. national security by controlling who has access to our most valuable technologies and weapon systems.

The current rules, regulations, and procedures may not be perfect, nothing is, but they are not undecipherable or as complicated as folks make them out to be sometimes.  Some of the regulations could use some updating.  The control lists and its definitions, simplification. But the substantive reform that may be needed should be done in the open and, likely, with full Congressional participation.

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