Export Control Challenges Associated with Securing the Homeland (2012)

INTRODUCTION

Explosives intended to cause mass casualties are concealed in cargo bound for the United States. A civilian airliner is attacked overseas by a shoulder-fired missile. The subway system in a major foreign city is attacked using poison gas.

These are not hypothetical situations. These incidents have all taken place.¹ Future attempts of this kind can and must be prevented. In addition, many critical infrastructure activities today are globalized, such as the civil aviation system and information and telecommunications systems. Protection for these systems must be equally effective throughout these globalized networks, because the security of the entire network can be compromised if an adversary is able to penetrate any given point. For example, the bomber who was able to penetrate the defenses of the civil aviation network at one of its weakest points (Murtala Muhammed Airport in Lagos, Nigeria) in December 2009 was able to compromise the security of a relatively strong point (Detroit Metropolitan Airport, United States) in the network.

After September 11, 2011, the federal government, supported by U.S. citizens, began to treat counterterrorism as a preeminent national mission cutting across the traditional missions of many government agencies. Previously, the federal government focused on counterterrorism chiefly after incidents had occurred and on an ad hoc basis by units dispersed throughout the government. When 22 existing agencies and several new entities were brought together in 2003² to create the Department of Homeland Security (DHS), it was the first time in American history that an explicit and proactive counterterrorism mission became part of the overall national security mission.

The Congress created the Department of Homeland Security to address this new counterterrorism mission under the Homeland Security Act of 2002. It defines the new department’s primary mission to:

(A) prevent terrorist attacks within the United States;

(B) reduce the vulnerability of the United States to terrorism; [and]

(C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States.³

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¹ These three incidents refer to, respectively: (1) On October 29, 2010, officials in Dubai and London intercepted bombs concealed inside printer cartridges that were shipped from Yemen and were destined for the United States; (2) in November 2003 a DHL cargo jet was struck in Iraq by a Man-Portable Air Defense System (MANPADS). This is 1 of 40 such incidents during the last 40 years. See www.state.gov/t/pm/rls/fs/169139.htm. Last accessed October 4, 2011; (3) in March 1995, domestic terrorists released sarin gas in several lines of the Tokyo metro system.

² Before September 11, 2001, the Federal Aviation Administration had responsibility for airport security. The U.S. Customs Service, responsible for incoming cargo, among many other authorities, was housed within the Treasury Department until 2003. The U.S. Border Patrol, founded in 1924, had responsibility for both persons and cargo; it resided originally in the Department of Labor and subsequently in the Bureau of Immigration (within the Department of Justice) until 2003.

³The Homeland Security Act of 2002, http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf. Last accessed January 23, 2011.

This mission requires DHS to prevent dangerous persons or goods from entering the United States and to protect U.S. civilian infrastructure networks and other specialized networks that connect Americans to each other and to the world. To conduct this mission, DHS must share information, technology,⁴ and equipment with foreign entities to develop antiterror technology for use in the United States and abroad, both to enhance our domestic systems and to strengthen the global networks upon which each nation’s communications, transportation, and commerce depend.

Accomplishing these goals often requires the export of technology and equipment. Because some of this technology and related equipment is of a “sensitive” nature,⁵ these exports may be subject to controls. The current export control system that governs the transfer of sensitive hardware, software, or technical data and equipment is managed primarily by two export control licensing agencies, one at the State Department and the other at the Commerce Department.⁶ The Defense Department also plays a critical advisory role to both licensing regimes. The Department of Homeland Security is not currently fully integrated into this system even though many of the department’s international activities are subject to export control regulations.

Regarding their export control responsibilities, the State and Defense Departments have traditionally focused on preventing militarily critical technology and equipment from leaving the United States so that it cannot fall into the hands of enemies. The Commerce Department has a national security responsibility to monitor the export of commercial items and technology that could have military applications (so-called dual-use items). The State Department and Commerce Department have the additional focus on preventing certain kinds of exports from falling into the hands of those states, groups, or individuals considered undesirable from a human rights or regional stability standpoint, or for other foreign policy reasons.

Because the Department of Homeland Security focuses its efforts on preventing terrorists and lethal materials that could cause mass casualties from entering the United States, the implementation of DHS’s mission on export controls is fundamentally different from these departments in two ways:

1. Major elements of the DHS mission—including equipment, technologies, and services, as well as concepts of operations—need to be widely shared in global civil networks (e.g., civil aviation; ocean shipping; information; and space, air, cable, and terrestrial communications). The Defense Department, in contrast, usually only provides equipment, technology, and related services to foreign entities with a shared defense mission.

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⁴In this report, the term technology is broadly defined as “know-how”—the software components and related hardware and the technical data that constitute a manufactured item. The term export refers to the transfer of goods and technology beyond U.S. borders, and to the transfer of sensitive technical data to foreign persons who are in the United States. In this instance, the word information refers to nontechnical data, such as information about terror suspects.

⁵“Sensitive, but unclassified information is information the disclosure, loss, misuse, alteration or destruction of which could adversely affect national security or other Federal Government interests. National security interests are those unclassified matters that relate to the national defense or the foreign relations of the U.S. Government.” http://www.fas.org/sgp/crs/RL31845.pdf. Last accessed February 23, 2011.

⁶ For discussion of the licensing regimes at the Departments of State and Commerce, see pages 35-38 in this report.

2. The DHS mission requires building relationships with civil agencies and private organizations from countries that may not have an established security relationship with the U.S. government. Under the auspices of the Defense Department, defense products and technology are provided to allied and friendly states to advance U.S. bilateral or regional security, and the user may not share access to U.S.-provided equipment and technology without U.S. government approval.

This mission requires exports from DHS to support its international efforts to provide the United States with access to the best foreign scientific developments in the antiterror field, and to make possible the deployment overseas of superior U.S. hardware and software for screening and detection purposes. The existing export control framework and processes do not sufficiently accommodate these new challenges. Nor has DHS yet fully integrated export control practices among its own components.⁷

The Science and Technology Directorate of the Department of Homeland Security asked the Committee on Homeland Security and Export Controls, an ad hoc committee of the National Research Council, to examine the impact of export controls on the DHS mission.

In conducting this investigation, the committee has studied the laws and regulations for defense and dual-use export controls, the geopolitical context in which they function, and the missions and practices of DHS and its relations with other national security departments. The committee’s findings and recommendations are addressed in the three chapters of this report.

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⁷ The word component is the term that DHS uses to refer to its individual offices, agencies, and directorates.

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