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SUMMARY
The “homeland” security mission of the Department of Homeland Security (DHS) is
paradoxical: Its mission space is uniquely focused on the domestic consequences of security
threats, but these threats may be international in origin, organization, and implementation. How
then does the DHS mission deal with export control issues, which are addressed by other
agencies with an international mission?
The DHS is responsible for the domestic security implications of threats to the United
States posed, in part, through the global networks of which the United States is a part. In
December 2009 we saw how an al Qaeda operative based in Nigeria was able to navigate the
global civil air transportation network, and in doing so, penetrate U.S. civil air transport
security. Networks have the property that once the network is penetrated, the outsider becomes
the trusted insider. While the security of the U.S. air transportation network could be increased
if it were isolated from connections to the larger international network, doing so would be a
highly destructive step for the entire fabric of global commerce and the free movement of people.
Instead, the U.S. government, led by DHS, is taking a leadership role in the process of
protecting the global networks in which the United States participates. These numerous
networks are both real (e.g., civil air transport, international ocean shipping, postal services,
international air freight) and virtual (the Internet, international financial payments system), and
they have become vital elements of the U.S. economy and civil society.
To protect these global networks, it will often be necessary for the United States to share
“know-how” and, in some cases, sensitive or dual-use equipment that can support network
security, including sophisticated cargo and personnel surveillance sensors, knowledge extraction
from sensor data, secure communications, and other advanced technologies. Many of these
technologies originate in the U.S. defense sector; hence, they are considered defense articles
under the provisions of the Arms Export Control Act of 1976 (AECA). Their export is
controlled by the International Traffic in Arms Regulations. Drafted three decades before the
2001 attacks, the AECA was initiated to protect U.S. national defense and foreign policy
interests by restricting exports of defense articles and services. The regulations and licensing
practices implementing the AECA will not effectively support homeland security needs as
technology requirements become more demanding and varied.
The committee found that outdated regulations are not uniquely responsible for the
problems that export controls pose to DHS, although they are certainly an integral part of the
picture. In fact, efforts to modernize U.S. export control policy are already under way within the
Obama administration (efforts which this committee largely supports, as discussed in
Recommendation III) and in Congress.
Rather, the committee found that a primary source of these problems lies within a policy
process that has yet to take into account the unique mission of DHS relative to export controls.
For example, current regulations do not recognize the new national security mission space that
DHS occupies—one that differs from the State and Defense departments. When those
departments share technology, such transfers are almost exclusively government to government.
DHS, in contrast, must be able to share or send abroad advanced technology or sensitive or dual-
use equipment to both public and private entities to prevent dangerous persons and goods from
entering the United States.
1
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2 EXPORT CONTROL CHALLENGES ASSOCIATED WITH SECURING THE HOMELAND
This is not to say that the existing export control system cannot be adapted to support the
DHS mission. On the contrary, the current administration’s initiative to reform the government-
wide export control system affirms its recognition that the system can be modernized largely by
administrative means. Because of the brief period of the existence of the DHS, its need for
export control reform is largely anticipatory (even though there have been some incidents in
recent years that illustrate the risk to U.S. interests). Nevertheless, there is an urgent need to
protect the global networks that are vital to the U.S. economy and defense posture, as these
networks will serve as an important attack vector in future conflict, whether state-sponsored or
the result of an effort by nonstate entities. As a result, the creation of an export control regime
able to flexibly address the unique characteristics of the DHS mission is crucial.
The Science and Technology (S&T) Directorate of the Department of Homeland Security
asked the National Research Council (NRC) to conduct a study that would address the source of
their export control problems and to make recommendations to resolve them. To that end, the
Committee on Homeland Security and Export Controls was established in 2009 to conduct a
study based on the following statement of task:
An ad hoc committee will conduct a study and prepare a report on the impact
of export controls on the DHS mission to strengthen the U.S. security envelope
abroad. The committee will examine the current impact of export controls on the
research, development and eventual foreign deployment of S&T Directorate
programs, and will also assess the effectiveness of factoring export controls into
programmatic decision-making within DHS. The committee will review the
Department’s role in the export control interagency process. The committee will
make recommendations in two areas: (1) how to factor export control policies into
programmatic decision-making in DHS with a focus on the S&T Directorate; and
(2) whether and if so, how to modify DHS’ role in the export control interagency
process.
In its investigations, the NRC’s Committee on Homeland Security and Export Controls
found instances in which existing export control regulations were affecting the S&T
Directorate’s mission: Counterterror research projects have been delayed, international
conferences have been canceled, and DHS officials have been unable to attend conferences in the
United States when foreign nationals were present.1 In each of these instances, the S&T
Directorate was prevented or delayed from developing, sharing, or in some cases, learning about
advanced antiterror technology that is being developed outside the United States. Currently, this
problem primarily affects the department’s research and development efforts in the S&T
Directorate, but other components of the department could be affected in the future.
The committee identified three interrelated needs regarding the S&T Directorate’s
involvement with export controls. The first involves the need by the Departments of Defense
and State to recognize the international nature of DHS’s vital statutory mission. The committee
has chosen to lead with this finding to emphasize this critical aspect of DHS’s activities. The
second involves the need to further develop internal processes at DHS to meet export control
requirements and implement export control policies. The department is still very young relative
to its counterpart agencies; it is in the process of consolidating many preexisting and new offices
1
All of these examples are discussed in Chapter 1.
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3
SUMMARY
into a unified whole. Thus, stovepipes still exist that hamper DHS components from export
control best practices.
The third addresses the need to reform the export control interagency process in ways that
enable DHS to work through the U.S. export control process to cooperate with its foreign
counterparts. The anachronisms of the current system were identified in a 2009 report of the
National Research Council entitled Beyond “Fortress America”: National Security Controls on
Science and Technology in a Globalized World. Among the central findings of the report was
the following:
Many of the federal government’s regulations governing what information,
components, and products can be delivered to or shared with citizens of other
countries are harming the nation’s security . . . this system was designed for a world
that no longer exists, and it needs to be replaced.2
Indeed, it is not only that certain aspects of export control laws and regulations are
anachronistic, it is also that the export control interagency process is out of step. It does not yet
fully take into account the existence of DHS itself, given that most current export control
regulations were formulated before the Department of Homeland Security existed, and DHS does
not yet have a full voice in the export control policy process. The export control reform process
that has been under way since August 2009 is promoting several changes to modernize the
system, but these efforts primarily affect the three agencies that have historically managed the
process: Commerce, State, and Defense.
The committee developed findings and associated recommendations that are listed below
and are discussed in detail in the following report.
Finding I
The Department of Homeland Security’s vital statutory missions require extensive
international cooperation to counter present and anticipated terrorist threats,
including the following:
1. Identification, development, and acquisition of foreign technology.
2. Collaboration with foreign governments and private entities.
3. Development and deployment of U.S. technology overseas.
The implementation of U.S. export control laws and regulations and related administrative
processes currently prevent DHS from accomplishing some of these missions effectively
and, in some cases, deny the United States access to the best technology to protect its
citizens.
2
Committee on Science, Security, and Prosperity; Committee on Scientific Communication and National Security;
National Research Council. 2009. Beyond “Fortress America”: National Security Controls on Science and
Technology in a Globalized World, p. 13. Washington, DC: National Academies Press.
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4 EXPORT CONTROL CHALLENGES ASSOCIATED WITH SECURING THE HOMELAND
Recommendation for Finding I
Within the U.S. export control decision-making process, DHS should carry the
primary responsibility for assessing when international collaboration is necessary to
promote important homeland security interests and have an equal position to other
cabinet-level agencies in assessing the conditions under which the United States
should deploy selected sensitive U.S. technologies or equipment abroad for
homeland security purposes.
Finding II
DHS would be more effective in carrying out its national security mission if it
addressed the current lack of the following:
1. A dedicated administrative entity at a sufficiently high level in the DHS to
implement export control policies and processes internally and participate
effectively in the interagency export control processes.
2. A strong, coherent internal process to meet export control requirements.
3. An adequate network of international agreements to support current or future
foreign cooperation, acquisition, and deployment of export-controlled items.
Recommendations for Finding II
1. DHS should organize and augment its current staff resources for export
controls, for example, by creating a dedicated administrative entity within DHS
headquarters.
2. DHS should have a written plan for identifying projects or programs that may
fall under export control requirements and for meeting export control
requirements as part of its regular development and acquisition processes.
3. DHS should continue to build a network of international agreements that
facilitate compliance with U.S. export control requirements.
Finding III
As recognized by reform efforts during the past 2 years, the current export control
system has weaknesses and involves delays that harm national security. In the
current context, this includes harm to counterterrorism programs and international
collaboration and deployment to support the specific mission of DHS. Although
current reform efforts may resolve many jurisdictional disputes, additional
measures are needed to enable DHS to work with its foreign counterparts and other
entities to develop the best possible technology for homeland security applications.
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5
SUMMARY
Recommendations for Finding III
A. The committee endorses, in principle, the current reform efforts of the
administration to enhance national security by reforming and streamlining the
export control system.
B. The ITAR process should be amended to include an exemption for situations
when the DHS or other relevant Agencies’ missions require an export without a
license. The criteria for situations meeting the exemption should be clearly
stated in the exemption.
C. For DHS to be effective in carrying out its mission, it will be important to:
1. Put DHS on an equal footing in interagency processes for export controls
when its interests are affected.
2. Streamline processes for exports necessary to execute urgent DHS missions.
3. Provide for commodity jurisdiction and advisory license decisionmaking
early in the interagency process upon DHS’s request.
These recommendations call for a modified and augmented set of practices within the
department itself and a more formal role for DHS in the export control process. They do not
require legislative action, and the direct costs are minimal. These changes will save both money
and time—and will make the nation safer. However, the costs to our national security could be
great if no action is taken. The time to act is now.
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