It’s Good to Be the King

If You’re the United States

Jeff Foust of The Space Review concludes that the Congress is the “biggest obstacle” to export control reform. His post can be read here. I tend to agree with Foust, however, not for the same reasons.  The Congress is an easy target for voters and politicians to beat on with regards to just about any issue.  This time, however, there are a few more actors involved and failure of all of the stakeholders to communicate seems to be the emerging issue.

For folks who do not follow this matter, we might as well be talking in some extinct language such as Atakapa or Ofo. So first some brief background about what these rules are all about. The U.S. Government likes, and in some cases must, know the comings and goings of certain U.S. products and services. The particular controls Foust is talking about deal with military goods and services as well as high-tech items that could have both a civilian and military uses.

There are just certain things we do not want our political and economic partners (and adversaries) getting their hands on. Why?  In the words of that great sage, Mel Brooks, “It’s good to be the King.”  In the case of our allies, we want to know who is purchasing or using our technological crown jewels. We also want them to control the technology when they get it to make sure the bad guys do not get their hands on it and, in turn, use it against the U.S. in the battlefield or in technology development.

Limiting access to controlled technology is easier said than done.  The process is compounded by human nature.  Think of it this way, the moment you tell a child that he or she cannot have something, what does that child do?  They will find a way to get it.  The U.S. has been grappling with how to protect its military and technological secrets since the founding of the Republic. And it will continue to do so if it wishes to remain an economic and military powerhouse.  Most reasonable Americans would agree that we should.

The modern export control regime is supposed to be international in scope.  Every country that is a member to that system should, but does not, have in place reliable systems to control sensitive technology and military equipment. It should come as no surprise that the United States maintains the more robust system. Not only do we have all the toys that people want, but we actually have cared who gets them and what the do with them. It is not a perfect system, none will ever be.  But at least we have something tangible to work with.

The federal regulatory state is an oppressive beast that can suffocate innovation and free markets. Its tentacles touch every sector of the economy and lawyers like us make a living dealing with the federal administrative state.  But many of the issues in the headlines causing economic problems, for example, can be linked to too much and unclear regulatory frameworks. Even agency officials find it mind-numbing. Regulatory reform is long overdue for many sectors of the economy.  There is just too much red tape. Trade controls are no exception.

When it comes to controlling access to military technology and dual-use wares, however, we must err on the side of caution.  Regulatory changes that move too fast can hurt U.S. national interests in the long-term. The current system may need updating, but it is not as tyrannical as staunch reform advocates argue, or as good as the security hawks would think. Considering the unique national security considerations that undergird these regulations, there is a system in place that tells folks what they need to do and how to do it.  No process will be perfect, but compared to other countries, we have one.

During the past few weeks folks have started playing the blame game again for not doing more to update and innovate a system that really needs it.  Congress will, as usual, be blamed for most of it.  In reality, there is nothing moving yet because stakeholders in this process are not of one mind on the specifics. Had they been, they would have done something not weeks, but years ago.  As odd as this will sound to some folks, when things like this happen in this town, it usually mean there is a minority interest pushing a parochial issue. Blaming the oversight entity that is closest to the voters, may not be the right place to focus energies.

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