Senate Banking, Housing and Urban Affairs Committee

Subcommittee on International Trade and Finance

Hearing on the Export Control Process

Prepared Testimony of Mr. Dave Tarbell
Technology Security Directorate
U.S. Department of Defense

10:00 a.m., Tuesday, April 14, 1999

Thank you, Mr. Chairman, for the opportunity to testify on current security challenges, export controls on dual-use goods and technologies, and the statutory framework for administration and enforcement of such controls. The Department of Defense believes that the proliferation of nuclear, biological, and chemical weapons, and their means of delivery, and advanced and other destabilizing conventional weapons, now represent perhaps the most formidable threat to our national security. Such proliferation can exacerbate instability in regions of the world where we have major security and economic interests, and can directly threaten U.S. citizens and armed forces virtually anywhere around the globe.

DoDís role in U.S. government export control policy development and implementation focuses on slowing the spread of items and technologies that can threaten U.S. national security -- particularly the security of U.S., allied, and friendly armed forces. Our approach on export controls seeks to balance four basic objectives: (1) Promoting efforts to prevent and counter the proliferation of nuclear, biological, and chemical weapons, and their means of delivery; (2) Preserving critical U.S. military technological advantages; (3) Controlling and limiting the acquisition of defense-related goods, services and technologies by any country or entity that could be detrimental to U.S. security interests; and, (4) Supporting legitimate defense cooperation with U.S. allies and friends. At the same time, our approach emphasizes the implementation of controls that can be effective. Ineffective export controls only create an illusion of security protection where -- like a Maginot Line -- none exists, and wastes scarce government and industry export control resources with no compensating security benefit and can thereby have a negative effect on national security.

Preserving our military technological advantage involves not only limiting the acquisition of critical technology by potential adversaries, but also involves promoting a vibrant, innovative private sector supporting defense research, development, and production. Our national security is enhanced by ensuring that U.S. industry can engage in legitimate international trade and investment because the Department of Defense and our principal contractors are increasing our reliance on commercial products, technologies, and processes to improve military capabilities. Moreover, allied and coalition warfare are increasingly important to our national security interests, and enhancing interoperability of forces and promoting cooperation among defense industries are key ingredients for success.

We also recognize that the U.S. is not the only supplier of many key items and technologies, and that we need the cooperation of other supplier nations to have effective export controls that meet our security interests. In this regard, DoD works closely with our interagency export control partners to foster multilateral export control regimes, to increase the effectiveness of other nationsí export control systems, and to encourage other countries to adopt policies and practices in consonance with U.S. security interests.

One of the key elements of any effective export control system is a comprehensive export control list. U.S. and multilateral control lists serve as the foundation for all national security and nonproliferation export controls. We believe that in order for control lists to be effective, there must be a clear and compelling national security or nonproliferation rationale for all items on the list. In that regard, DoD participates actively in the interagency and multilateral processes that define these lists. We have a system in place that has worked quite well whereby Commerce consults with DoD and other agencies before adding or deleting items from the U.S. control list, as well as in developing proposals to change control lists in multilateral regimes. This is an open and transparent process that affords all agencies an opportunity to address all concerns and, when consensus is not reached, to escalate issues for resolutions.

DoD participates in the development of control lists because the specialized knowledge and expertise required to make the often complex judgments regarding the potential impact of particular high technology items on our national security resides primarily, if not solely, with the Department of Defense. My organization, the Technology Security Directorate of the Defense Threat Reduction Agency, coordinates the development of DoDís analysis of these lists. We draw on expertise throughout DoD in the military departments, the Joint Chiefs of Staff, the operational commands, military labs, and DoD intelligence organizations. Development and refinement of control lists is an ongoing and continuing process that recognizes the dynamics of technology development and the diffusion of technology on a global basis, and seeks to identify those items and technologies that require control in terms of their contribution to military and proliferation capabilities.

While control lists represent the foundation of U.S. national security export controls, the engine of export controls is the inherent case-by-case export licensing process. It is essential that DoD continue to be an equal participant in the licensing process in order to ensure full consideration of the national security interests at stake in export license decisions. We support a robust interagency license review process that considers all interests affected by export license decisions for dual-use items and technologies -- whether they be security, foreign policy, nonproliferation, or economic. We support the principles of transparency and discipline in the dual-use export licensing process. In this regard, we believe that the current license review system established by the 1995 Presidential Executive Order serves these principles. All agencies have an equal opportunity to bring their interests to bear, and to escalate concerns in a deliberate manner through various levels of decision-making that can ultimately lead to the President, if necessary. We strongly believe that the Executive Branch must be afforded the flexibility under this system to adapt to changing security and technology circumstances.

DoD is prepared to work with this committee and with the Congress as a whole to consider both existing legislation and legislation that was considered in previous Congresses in a collaborative effort to fashion an Export Administration Act appropriate to the threats and challenges I have outlined. While H.R. 361 represents a useful point of departure for such discussions, we believe that there is a need to reexamine many provisions based on the security environment we expect for 2000 and beyond.

It is not possible in this statement to discuss all of the provisions in the HR 361 that might need revision. However, I wish to emphasize several key elements that I believe should be kept in mind as we work together in this enterprise. First, we need a strong policy basis in the law that recognizes U.S. security interests as a major underpinning for U.S. export controls. Second, in order for the controls to be effective in furthering our nationís national security objectives, it is essential that the underlying authority provide substantial flexibility in both establishing and implementing controls. The security environment and the advance of technology require an agile system that can adapt quickly to changing circumstances. Third, the law needs to maintain a sufficiently broad basis for imposing unilateral controls under certain circumstances, while recognizing that controls are generally more effective if they are also implemented by other supplier nations. There are occasional circumstances where the U.S. needs to take a stand on principle in order to lead. We agree that the application of unilateral controls should be tightly monitored and regularly reviewed, but the ability to apply those controls in particular circumstances is an important mechanism to further our national security objectives.

With respect to this last point, I want to stress again that DoD strongly supports and participates in U.S. Government efforts to encourage other nations to adopt export control policies and practices in consonance with U.S. security interests. We favor establishing a statutory framework for U.S. export controls that highlights the existing multilateral nonproliferation regimes such as the Nuclear Suppliers Group, the Missile Technology Control Regime, the Australia Group, and the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. At the same time, we need a strong statutory basis for controls we share with other nations, who are suppliers of comparable items and technologies, but that are not necessarily within a "formal" regime framework. In this uncertain and fast-moving security and technology environment, we need to have a strong legislative base that supports multilateral efforts, whether they are formal or not.

Finally, we need a strong basis for enforcement in any new Export Administration Act. Export controls are a cooperative activity between government and the private sector that generally works quite well. However, we must recognize that there will always be those that are tempted by illicit motives, and we need a strong legal basis to deter those temptations, and when necessary, punish those that choose to flout the law. One particular area that needs immediate attention -- even absent a wholesale reauthorization of the Export Administration Act -- is much tougher criminal and civil penalties for violations of export controls.

Mr. Chairman, I have sought to lay out some of the key elements that should be considered in a new Export Administration Act. This concludes my formal statement, and I would be happy to answer any questions that you or the other Committee members might have.

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