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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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