Congress to Tackle Export Controls and Oversight of the Reform Process

In less than two weeks Members of Congress will, finally, join in on the export control reform dialogue that the Obama Administration initiated in August 2009. The Export Control Reform Initiative (ECR Initiative) builds upon an inter-agency review process and is supposed “to enhance U.S. national security and strengthen the United States’ ability to counter threats such as the proliferation of weapons of mass destruction.” You can read more about the ECR Initiative, here. By the way, this effort was started with the folks in the Bush II Administration.

Up until now, Congressional input in this process has been limited, mostly a behind-the-scenes project for interested Congressional staff. On May 12, 2011, the House Foreign Affairs Committee will hold the first of what seems to be a series of hearings: “Export Controls, Arms Sales, and Reform: Balancing U.S. Interests, Part I.” All of the witnesses for the May 12 hearing are Under Secretaries so the Congressional opener will likely be used to set the tone and draw some lines by both sides. The hearing notice is available, here.

To their credit, the Obama Administration has done a good job of methodically putting in place a holistic process that has taken a fulsome look at most of the trade security system (the Treasury Department’s Office of Foreign of Assets Control and economic sanctions, to my knowledge, were not included in the review, nor were the nuclear technology export rules); however, some of us on the outside have wondered if pan reform was necessary rather than an incremental approach that targeted well-known issues with the regulatory regime.

For example, a push remains to create another federal agency to deal with export control issues (side note: they should change that term, export controls, to a more modern term such as Trade Security). Yet there is nothing said about streamlining or eliminating existing offices, desks, or bureaus at any of the existing federal agencies that deal with this matter.

A perennial debate with export controls trade security policy revolves around security vs. commerce. There is no cookie cutter, one-size fits all approach to this and there never will be.  For an extreme example of what can happen when things go wrong on the security side because controls were relaxed maybe a little too much, look no further than the Cox Report: U.S. National Security and Military/Commercial Concerns with the People’s Republic of China.

For recent examples of U.S. technology ending up in the wrong hands, or folks trying to break U.S. laws in this area, scan this list of Justice Department prosecutions, this list of Commerce Department export violations, or these lists of State Department consent agreements and debarred federal contractors. And, as detailed in this recent Associated Press story, China is still shopping.

As they have done in past hearings, the Congress will be looking to see if the Obama team has done a careful balancing between security concerns and commercial goals, both important elements of robust national security policy. It will be interesting to hear the Administration’s progress on the creation of a single list for controlled items as well as the modernization of IT systems to handle the information and sharing capabilities among the agencies.

In the end, if this is all they were to achieve, these two items will be a huge step in the right direction. It seems the Obama team has taken this process as far as it can without Congressional authorization. Will Congress weigh in with its own reform proposals? Let’s see how it all ends, this time around. This has been tried many times before.