Most of the speakers post their remarks online.  Of the speeches I was able to read at the BIS website, the more informative and balanced was Eric Hirschorn’s, a BIS Under Secretary.  While it had some of the perfunctory pro-Obama rhetoric, the Bushies would have done the same, it was a good overview of forthcoming and some overdue reforms to the export control system.  It was not a speech that I could share with my friends outside the beltway, but it was not designed to be.  In fact, most of what we do in this field for our clients is like a foreign language even for folks who follow these issues for a living.

The one comment that stood out deals with enforcement.  Hirschorn said that the Administration is “planning increased efforts against individuals (emphasis added) who flout the rules and against companies whose inadequate internal compliance programs tell us that they are indifferent to whether they follow the rules.”  I have worked with many clients that had excellent compliance programs in place, but also had individuals who found ways to make a lot of trouble for companies. In the end, the companies carry the brunt of the legal (and public relations) exposure, while the individuals seem to skate by with what seems to be a slap on the wrist.

Hopefully the Obama folks will provide sufficient funds for more robust enforcement.   Not surprisingly, you will find that this is the case in most areas of the federal government.  The enforcement folks always seem to lack money and people to do their job. When I used to work on the Hill, no matter the subject area, the enforcement folks at the agencies could always use a little more, sometimes a great deal more. No matter how much they wrap themselves in the reform mantra, it will mean little in the long-run if the Obama team fails to provide the enforcement folks with the tools that they need to take a bite out of crime.

• The Trinidad and Tobago government says it plans to pass new laws to deal with the long-standing problem of human trafficking.

• According to the non-profit Realite-EU, Iran is shoring up nuclear support, in Bolivia.

• Heritage Foundation scholar attempts to draw a parallel to Ronald Reagan and Barack Obama on export control reforms.  The thing is that the world Ronald Reagan led was fundamentally different from the world order today. Reforms in this area need to be responsive to these realities and, from what some of us have seen, these reforms will fall to short balancing security and commercial needs.  With little detail to go on because the Administration has only communicated via talking points and official speeches, still too early to place a “Reagan moment” accolade on the Obama team.

• Cuba Travel Part I:  Two weeks ago folks in town were buzzing about possible changes to travel restrictions being eased for Americans interested in visiting state sponsor of terrorism Cuba.  I was in Miami back then and they were buzzing there as well.  As it turns out, nothing of legal substance on travel has taken place, yet.  People in the know seem to think that there will be and soon.

• IAEA report to detail how Iran is impending international inspectors and violating economic sanctions.

• The Simon Wiesenthal Center estimates that there are approximately 3,000 Hezbollah operatives located throughout Latin America.  The Center’s Latin America representative are calling on regional government to expel these individuals as well as freezing or confiscating assets.

• Ahead of elections, Bahrain accuses Shiite activists of terrorism and subversion.

• The Australian Conservative published today the first in a series of articles dubbed, The New Economy of Terror.   Well worth a read.

• Cuba Travel Part II:  To the chagrin of opponents of U.S. policy, the President extended the sanctions for another year pursuant to his authority under the Trading with the Enemy Act.  As if there was ever a doubt this would happen …

• Despite extending sanctions on Cuba for another year, expect a significant announcement from the U.S. in a few weeks related to travel by Americans as well as the release of political prisoners in Cuba (and possible expatriation to the U.S., along with family members).

Earlier this summer Myrick also released a video about the letter she sent to Department of Homeland Security Secretary Janet Napolitano, in which Myrick calls for a task force to investigate the presence of Hezbollah in along the Southern border.

This issue of terrorism and other security risks at the U.S.-Mexico border is something folks in this town just do not want to admit or talk about it.  There is much more out there than anecdotal evidence and further serious study is warranted.

Mexico should have nothing to fear from a frank and thorough review of this matter.  It is their security as well.  When you factor in the Iran-Chavez-Castro connection, Mexico and the United States would be acting recklessly if they fail to study possible connections.

Myrick serves on the House Permanent Select Committee on Intelligence and is a member of the House Anti-Terrorism Caucus.

The Task Force is to assess the appropriateness of the goals of “basic research,” assess the management of basic research across DoD, identify gaps in the research program, examine the balance between individual and multi-user grants, and assess the competitiveness between intramural and extramural research programs.

The announcement should be of particular interest to universities as DoD is a significant source of federal funding of university research in several disciplines including electrical and mechanical engineering, computer sciences, and mathematics.

DoD is also a major source of funding in materials, optics, and oceanography.  Finally in some specific areas, DoD is the only source of basic research funding in areas such as the support of vacuum electronics needed for radiation-hardened electronics used in radar and space systems.

Text of the letter:

Blog scribes Ben Wittes, Jack Goldsmith, and Robert Chesney penned in the opening post:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

We may not agree always on substance, but the site is entertaining and informative and, besides, it is not a lot of fun to always exchange ideas with people you tend to agree with.  Be sure to pay them a visit.

The EECC or fusion center for enforcement was an idea that was tossed around in Congress and by agencies for some time, but it never took hold likely because there were many other security priorities after 2001.  Yet tucked away in December 2006 Government Accountability Office (GAO) report, the Department of Homeland Security (DHS) made the following comment:

Homeland Security agrees in principle with our first recommendation, but believes the establishment of an Export Enforcement Coordination Center within ICE would address coordination concerns in the most immediate and comprehensive manner.

This report was generated in response to a request by, Rep. Henry Hyde, the former Illinois Republican Chairman of the House Committee on International Relations (Democrats changed the Committee name to the House Foreign Affairs Committee when they won the majority) and Rep. Jim Sensenbrenner, the former Chairman of the House Judiciary Committee.

When it came to export controls, Hyde, Sensenbrenner, and others were national security hawks, but also balanced commercial concerns as well. They approached reform efforts incrementally, with a special eye on enforcement of the current laws on the books.  Go figure.   Frustrating to some, especially to those who wanted system overhauls, the step-by-step approach to improving the process makes sense because when it comes to national security moving too usually leads to mistakes that ultimately weaken our posture.

Some of the criticism of the current system borders on policy apostasy.  Yet in reality, while the current system may not be the most efficient from a process standpoint, and needs improvement, it is not as labyrinthical as these pan-reform advocates made it out to be. If you take the time to read the law, it is also not that difficult to understand and implement.  In the meantime, an EECC or related fusion center set-up for enforcement is an idea long overdue.

On a partisan note, it was refreshing to hear something positive from this White House, other than blame Bush for our current problems mindset, even if just in this largely parochial issue area of export controls.

• Russian arms dealer and sanctions buster Viktor Bout‘s extradition to the U.S. from Thailand is still delayed because of legal technicalities.  The latest charges include money laundering and fraud.

• Iranian proxy Hezbollah knocking at our southern door.  For years there has been anecdotal evidence that Hezbollah, as well as other Middle Eastern radical Islamic terrorist groups, have been operating just south of the U.S.-Mexico border.  An indictment handed down late month in the Southern District Court of New York has connected the dots to Hezbollah and the Mexican drug cartels.  May the lawyers keep going south – they will surely find links in places such as Nicaragua, Venezuela, Brazil, and even Ecuador.

• Pakistani Taliban added to US international terrorism blacklist, $5 million reward announced yesterday by State Department officials.

• A former North Korean Ambassador to the United Nations and another official may be at the center of North Korea’s illegal arms trade with other rogue regimes such as Iran.

• “Historic. Exotic. Affordable.”  That is how USA Today‘s travel reporter Bill McGee describes Cuba as travel destination.  McGee even provides tips on third country entry as an “open secret.”  Save your coin.  What he should have said is that Cuba is “Run down. Depressing.  Crumbling.”   If you want to be depressed, see repression, and partake in tourism apartheid, go ahead.  But, under U.S. law, third country travel is “illegal.

• Mexican drug cartels members, many of which are listed as specially designated nationals (SDNs) by the U.S. Government, are recruiting members in the United States.  Phoenix, Arizona bars seems to be a prime location for finding new drug mules or gun runners.  And there are still folks in this town who want to fight SB 1070?

• The editorial board of the Santa Fe New Mexican newspaper argues that the Obama Administration should not have sent a new ambassador to Venezuela because of that country’s ties to terror and poor human rights record.  Common sense?  Certainly, but not in Washington, DC.  There is enough on record to seriously deem Venezuela a region of terrorism concern.  Yet as the editors say in the piece, ni hablar.  These folks will not do it.

In a three judge panel decision, the U.S. Court of Appeals for the Eleventh Circuit ruled late last month that a 2006 Florida law restricting the use of public funds for travel to a “terrorist state” could be fully enforced.  The ruling effectively blocks any employee at a state university from using public funds, or private funds moving through the  university, from any activities involving travel to Cuba, Iran, Sudan, or Syria. The Florida education code states:

None of the state or nonstate funds made available to state universities may be used to implement, organize, direct, coordinate, or administer, or to support the implementation, organization, direction, coordination, or administration of, activities related to or involving travel to a terrorist state. For purposes of this section, “terrorist state” is defined as any state, country, or nation designated by the United States Department of State as a state sponsor of terrorism. Fla. Stat. § 1011.90(6).

One of the more interesting parts of the decision was the reversal of the District Court on the question of restricting the use of private funds moving through the university system.  Arguing that such a restriction was preempted by federal law and violated the federal government’s foreign affairs power, the District Court granted summary judgment to the plaintiffs, the Faculty Senate of Florida International University (FIU).   The Court of Appeals disagreed: the “[Travel] Act’s brush with federal law and the foreign affairs of the United States is too indirect, minor, incidental, and peripheral to trigger the Supremacy Clause’s — undoubted — overriding power.”  Faculty Senate of Florida International University, et. al. v. John Winn.

In summary, if you are a university professor you will need to pay for the trip out of pocket or raise the funds and plan the trip completely outside of the Florida education system. This likely means that such a trip would need to be planned off university grounds as using a university facility and equipment would be an activity that would involve the use of state funds (i.e., phone, electricity, computers, etc.).  There is no incidental or personal use exception in the law.

Opponents of the measure, including the ACLU of Florida that filed the suit, argue that the Act, among other things, violates civil rights and freedom of speech. The law does no such thing.  A majority of Florida taxpayers are not saying you cannot go to Cuba, Iran, Sudan, or Syria.  They just do not want to pay for it if you do.

Here is the complete Appeals Court decision:

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.

According to a Congressional Notification (CN) published this week, the State Department has informed the Congress that it has tentatively approved a transfer of sensitive U.S. satellite technology to Brazil worth at least $50,000,000.  These CNs are not very specific, so we can only make educate guesses as to the details of the transactions. At this stage of the process, the transfer of sensitive U.S. technology and defense services for use in Brazil’s commercial satellite program will likely be approved by the Congress.  Brazil and state sponsor of terrorism Iran are close allies and any transfer of satellite and other space-related technology, one would hope, has been closely scrutinized by the U.S. Government.

Brazilian and Iranian relations go beyond food sales, cultural exchanges, or diplomatic happy talk.  Brazil is Iran’s gateway to the Americas, affording Iranian businessmen, regime officials, and others access to the Western Hemisphere.  Besides potentially allowing individuals suspected of terrorism into the region, a more pressing concern is what steps has Brazil taken to protect sensitive U.S. and Brazilian space-based and rocket technology from falling into the hands of the Iranians? Brazil’s export control law regime is weak and this, coupled with Brazil’s diplomatic dance with Iran, do not raise confidence levels that our technology is safe.

Brazil’s recent quixotic and failed diplomatic moves to contain Iranian nuclear ambitions do not raise confidence either, nor does the May 2010 agreement for Brazil to sell uranium to Iran.  The U.S. Congress should take a closer look at this most recent CN and, before Congressional officials sign off on it, request additional assurances that U.S. technology will not find its way to Tehran.  During the 1990s Brazil sold rocket technology to Iraq, who is to say it is not doing so today with Iran?  Maybe that will temper future Câmara rocket envy statements.