FAS Public Interest Report
The Journal of the Federation of American Scientists
March/April 2001
Volume 54, Number 2
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Front Page
Degraded Lands: South China's Untapped Resource
U.S. Stalls BWC Protocol Negotiations
NMD Q&A
Dual-Use Exports Liberalized
Making Your Views Heard to Congress
Another Intelligence Review Underway

Dual-Use Exports Liberalized

By Tamar Gabelnick & Bryan Stewart

Congress is once again trying to rewrite the Export Administration Act (EAA), the law governing exports of commodities that have both civilian and military uses, from high-speed computers to crime control equipment. First passed in 1979, the EAA expired in 1994 and only remains in force thanks to repeated presidential executive orders, next set to expire this August 20. Congress has tried unsuccessfully in past years to rewrite the law, hampered by a deep schism between conservatives that fear the transfer of sensitive materials to potential adversaries like China and business proponents that want to ease export restrictions on high-tech goods.

S.149, introduced by Senators Mike Enzi (R-WY), Paul Sarbanes (D-MD), Phil Grahm (R-TX), and Tim Johnson (D-SD), represents the pro-business side of the debate. As currently drafted, it would significantly loosen export controls. It would place imposing and repetitive burdens on the president to justify controlling items that are considered widely available or that need to be controlled primarily for foreign policy reasons. The authors of the bill make no attempt to conceal that the bill's goal is to liberalize exports of all but the most sensitive goods. As Senator Gramm articulated, "we need to build higher walls around a smaller number of things." The bill also encouraged the use of export control advisory committees with "the widest possible participation by the business community."

Arms control and human rights advocates are therefore seriously concerned that the bill would limit the government's ability to control potentially dangerous items, including police and security equipment commonly used for torture. The bill passed the Senate Banking Committee 19-1, but debate on the Senate floor on April 26 th showed greater to bipartisan opposition, leaving a full Senate vote pending.

The new version of the EAA differs from the original Act in its heavy emphasis on foreign market availability and its disdain for unilateral export controls. Under the new version, there would be no more unilateral controls on goods that are deemed to have "foreign availability" or "mass market" status by the Commerce Secretary. The President can override this determination for specific items, but only if he reports to Congress on the reasons for his decision and begins multilateral negotiations to reduce foreign availability of the goods in question. He must reaffirm the need for controls and the status of negotiations every six months.

If the President seeks to control items for foreign policy reasons, he must follow similarly rigorous reporting and negotiating requirements_and he may not delegate these tasks. Fortunately, the bill was amended to explicitly require an export license for crime control equipment (such as shackles or electroshock equipment). But an exception was made for NATO states, Japan, and Australia, despite well documented cases of torture in at least one of those states.

The idea of basing export control policy on such purely commercial criteria has led some Senators to hesitate. During the Senate floor debate, Sen. Fred Thompson (R-TN) pointed out that the U.S. firms do not need to make questionable sales just because other countries permit them. "It raises a question…as to whether or not there is a moral dimension to our foreign policy," he commented, adding, "I would not feel any better to find American troops shot down with technology supplied by American companies if I knew there was mass marketing of those products." Sen. John McCain (R-AZ) noted, "It brings into question the influence of big money and big business in American politics."