EXPORT CONTROL CHALLENGES ASSOCIATED
WITH SECURING THE HOMELAND

Committee on Homeland Security and Export Controls

Development, Security, and Cooperation

NATIONAL RESEARCH COUNCIL
OF THE NATIONAL ACADEMIES

THE NATIONAL ACADEMIES PRESS
Washington, D.C.
www.nap.edu



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EXPORT CONTROL CHALLENGES ASSOCIATED WITH SECURING THE HOMELAND Committee on Homeland Security and Export Controls Development, Security, and Cooperation THE NATIONAL ACADEMIES PRESS Washington, D.C. www.nap.edu

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THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. This study was supported by Contract/Grant No. HSHQDC-09-C-00126 between the National Academy of Sciences and the Department of Homeland Security. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations or agencies that provided support for the project. International Standard Book Number-13: 978-0-309-25447-2 International Standard Book Number-10: 0-309-25447-7 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W, Keck 360, Washington, DC 20001; (800) 624-6242 or (202) 334-3313; Internet, http://www.nap.edu. Copyright 2012 by the National Academy of Sciences. All rights reserved. Printed in the United States of America

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. www.national-academies.org

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COMMITTEE ON HOMELAND SECURITY AND EXPORT CONTROLS William J. Schneider, Jr. (Cochair) President, International Planning Services, Inc., Arlington, Virginia Mitchel B. Wallerstein (Cochair) President, Baruch College, City University of New York Richard C. Barth Senior Vice President, Government Relations, Tri Alpha Energy, Washington, D.C. Larry E. Christensen Lawyer, Miller & Chevalier Chartered, Washington, D.C. Vincent F. DeCain Managing Director, DeCain Group, Kensington, Maryland Carol A. Fuchs Counsel, International Trade Regulation, General Electric Company, Washington, D.C. G. Christopher Griner Partner, Kaye Scholer LLP, Washington, D.C. Carol E. Kessler Chair, Nonproliferation and National Security Department, Brookhaven National Laboratory, Upton, New York Martha A. Krebs Executive Director, Energy and Environmental Research Development, University of California at Davis Deanne C. Siemer Managing Director, Wilsie Co. LLC, Washington, D.C. Kathryn Sullivan Senior Advisor, Office of Integrative Activities, National Science Foundation, Arlington, Virginia William H. Tobey Senior Fellow, Belfer Center for Science and International Affairs, John F. Kennedy School of Government, Harvard University Christopher R. Wall Partner, International Trade, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C. Principal Project Staff Patricia S. Wrightson, Study Director Ethan N. Chiang, Program Officer Neeraj P. Gorkhaly, Research Associate Aaron Modiano, Research Associate (March–August 2010) v

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PREFACE By penetrating the security perimeter of the US air transportation network on September 11, 2001, nineteen Al Qaeda operatives succeeded in gaining access to and control of three commercial airliners. In their hands, these aircraft became weapons and killed almost three thousand people from more than 80 countries. The attacks instantly erased the security significance of distinctions between “domestic” and “foreign” threats, and changed—perhaps forever—the nature and scope of “national security” as a concept. Despite our formidable national defense establishment, the institutions created after the Second World War have proven inadequate to cope with the nature of modern security threats of the twenty-first century, as they expand from nation-states to sub-national groups employing asymmetric terrorist techniques to advance their aims. In response to a broader concept of national security than classic “national defense,” the Congress created a new institution to address the emerging threat—the Department of Homeland Security, whose chief mission is to prevent terrorist attacks on the U.S. homeland. However, the DHS has been saddled with the legal and regulatory legacy of the Cold War while attempting to deal with an entirely new set of security threats. This study focuses on one important dimension of this legal and regulatory legacy that affects directly the ability of the DHS to perform its mission—the nation’s export control system. The National Research Council established the Committee on Homeland Security and Export Controls to evaluate the impact of export controls on the research and development activities and the eventual foreign deployment of technology by the DHS Science & Technology Directorate. We are grateful to the committee members of the Committee on Homeland Security and Export Controls for their hard work on this study. Their expertise and continuing commitment made it both possible and enjoyable to work through a very complex set of problems that had not previously been explored. On behalf of all of our colleagues on the committee, we would like to thank Patricia S. Wrightson, the enterprising and experienced director of the study, Ethan N. Chiang, who served ably as program officer for the investigation, as well as Neeraj P. Gorkhaly and Aaron Modiano, who were research associates on the project. Given that the issue under investigation was future- focused and previously unexplored, the staff faced and overcame significant challenges in identifying the necessary information and helping the committee to analyze and understand the implications for U.S. policy and practice. For this, we offer our thanks and appreciation. William J. Schneider, Jr. Mitchel B. Wallerstein Cochair Cochair vii

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ACKNOWLEDGMENT OF REVIEWERS This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with procedures approved by the National Academies’ Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the process. We wish to thank the following individuals for their review of this report: Clyde Briant, Brown University; Melvin Bernstein, Northeastern University; Michael Chertoff, Covington & Burling LLP; Giovanna Cinelli, Jones Day; David Goldston, Natural Resources Defense Council; Robert Litwak, Woodrow Wilson Center; Peter Lichtenbaum, Covington & Burling LLP; William Lowell, Lowell Defense Trade, LLC; Carey Rappaport, Northeastern University; William Reinsch, National Foreign Trade Council; Rudolph Seracino, North Carolina State University; and George Sevier, Defense Trade Advisory Group. Although the reviewers listed above have provided many constructive comments and suggestions, they were not asked to endorse the conclusions or recommendations, nor did they see the final draft of the report before its release. The review of this report was overseen by Anita Jones, University of Virginia and Robert Frosch, Harvard University. Appointed by the National Academies, they were responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully considered. Responsibility for the final content of this report rests entirely with the authoring committee and the institution. viii

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CONTENTS Summary 1 Introduction 7 Chapter 1 Department of Homeland Security International Activities and Export Controls 11 Chapter 2 Department of Homeland Security’s Internal Processes 21 Chapter 3 The Interagency Process for Export Controls 33 Conclusion 47 APPENDIXES A Committee Member Biographies 49 B Department of Homeland Security Organization Chart 57 C Science and Technology Directorate Organization Chart 59 D Mission and Duties of the Science and Technology Directorate 61 E Agendas for Public Meetings 63 F 108 Congressional Committees Oversee the Department of Homeland Security 67 ix

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