Page 1 of 2 China hawks target US sign-off shuffle
By Peter J Brown
The White House in late September released a "presidential determination" that
entailed a memorandum to United States Secretary of Commerce Gary Locke. It
went virtually undetected. It simply stated:
Subject: Presidential
Determination on the Delegation of Certifications Under Section 1512 of Public
Law 105-261. By virtue of the authority vested in me as President by the
Constitution and the laws of the United States of America, including section
301 of Title 3, United States Code, I hereby delegate to you the functions of
the President under section 1512 of the National Defense Authorization Act for
Fiscal Year 1999.
Under Section 1512, President Barack Obama is
required to certify to the US Congress that above all else, US space-launch
industry interests are protected and that by exporting the missile hardware or
technology in question, China's missile or space launch capabilities will not
be somehow improved in the process, nor will China benefit even indirectly by
the proposed transaction.
Shortly thereafter, The Washington Times ran a story that said, in effect, that
China could now celebrate because by shifting authority to Locke's office Obama
had suddenly rewritten the rulebook when it came to exports of missile and
space-related technology to China.
Although US Commerce Department officials made an attempt to contradict this
claim in the same story by asserting that, "the shift will not cause controls
to be loosened in regards to the export of missile and space technology,"
critics, including Henry Sokolski, director of the Non-proliferation Policy
Education Center, disagreed and tagged this move as a "step backward".
The US Commerce Department is blamed for mishandling a series of sensitive
technology transfers in the late 1990s that resulted in China's deployment of
more accurate and reliable long-range missiles. As a result, the oversight of
this export activity was shifted to US State Department's Directorate of
Defense Trade Controls (DDTC), two US satellite companies were fined, and all
US-Chinese trade in this type of space-related equipment ceased.
Gary Milhollin, director of the Wisconsin Project on Nuclear Arms Control, told
the Washington Times that, "it is shocking that it would be delegated to the
secretary of commerce, whose job it is to promote trade, rather than to the
secretary of state or the secretary of defense, who have far more knowledge and
responsibility within their organizations for missile technology".
Edward Timperlake, a Pentagon technology-security official during the George W
Bush administration, told the Times that the decision is "greenlighting
engagement with China in very bad areas that will negatively impact United
States' national security".
It turns out the comments made by the Commerce team were right after all.
"There has been no substantive change of export control policy in regard to
missile and space technology for China or any other nation," said Michael Gold,
director of Nevada-based Bigelow Aerospace's Washington, DC area office. "As
always, fear is a great motivator, and there are elements out there that want
to paint China as some sort of boogeyman, and are also hoping to malign the
president in the process."
At the same time, Gold does not blame anyone for being cautious in regard to
export control reform relative to the Chinese.
"There are legitimate concerns in regard to human rights, Darfur, and
environmentalism that should be raised and addressed prior to any such
changes," said Gold. "However, we must be vigilant, and avoid over-reacting,
which I am afraid is exactly what happened here."
Gold credits the Obama administration for "pursuing common-sense export control
reform".
"Such reforms will bolster national security, along with commerce, and make the
nation both more secure and prosperous. However, the signatory change that has
occurred [in this instance] is again, superficial at best, and it is not
representative of the overall direction that any eventual reforms will take,"
said Gold.
As Clif Burns pointed in an excellent analysis of the situation entitled
"Unguided Missile Attacks", this decision by the White House does not shift the
obligation over section 1512 certifications from the State Department to the US
Commerce Department. Burns is a Washington, DC-based attorney at Bryan Cave
LLP, an adjunct professor of law at the Georgetown University Law Center and
editor-in-chief of ExportLawBlog.
"Items on the US Munitions List are licensed by DDTC and are subject to the
embargo in section 126.1 of the International Traffic in Arms Regulations
[ITAR], meaning, of course, that none of these items will be approved for
export to [China]. Nothing in the bemoaned action by the Obama administration
changed any of that or shifted any licensing authority over Missile Technology
Control Regime items from State to Commerce," wrote Burns, reminding everyone
that the president's certification to Congress under section 1512 happens only
after the state or commerce departments have completed their approvals of the
export.
"Suggestions that this change is effective to handing over US nuclear missile
technology to Beijing are, simply put, crazy talk," Burns wrote.
Apparently, among other things, all of this confusion has made life for the
DDTC staff a bit hectic.
"What created the confusion was, in my mind, a knee-jerk reaction by the usual
China hawks - the Wisconsin Project, for instance - prior to any examination of
the facts or the law. [There is a] response to anything that has even a remote
scent of appearing to change current regulations controlling satellite exports
to China - which the directive decidedly does not do," said one Washington
attorney who specializes in these matters.
What this decision also does not do is bring to fruition one of Obama's
campaign pledges. He stated in his white paper entitled "Advancing the
Frontiers of Space Exploration" that his new administration would, "direct a
review of the ITAR to re-evaluate restrictions imposed on American companies,
with a special focus on space hardware that is currently restricted from
commercial export". The discussion here clearly indicates that those
restrictions are still firmly in place.
However, up on Capitol Hill, Congress is stirring. Earlier this month, the
"Strengthening America's Satellite Industry Act" (HR 3840) was introduced in
the US House of Representatives, and the bill has since been referred to the
House Committee on Foreign Affairs.
HR 3840 declares that "it is the sense of Congress that the President should
redouble United States diplomatic efforts to strengthen national and
international arms export controls by establishing a senior-level initiative to
ensure that those arms export controls are comparable to and supportive of
United States arms export controls, particularly with respect to countries of
concern to the United States".
The bill's chief sponsor is Democrat Representative Dutch Ruppersberger, who
chairs the House Select technical and tactical intelligence subcommittee.
Ruppersberger is convinced that the current system is penalizing US space
sector companies, and he wants to quickly complete the reform of regulations
pertaining to satellite and space technology exports reform. He labels ITAR as
part of a failed framework of laws and regulations that are crippling US
companies. He is trying to do what Obama seems unable or unwilling to do, at
least thus far.
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