Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, February 16, 2009

ITAR

The United States government controlls the export of armaments through the International Traffic in Arms Regulations (ITAR). Of course, the notion of what constitutes a weapon these days keeps growing. Military-related technologies are now often classified as weapons systems of a sort under ITAR. For example, so-called "strong" cryptographic techniques, are classified as ITAR restricted, which causes a host of problems across the internet.

Another wrinkle in the ITAR regulations is that it sometimes restricts the flow of information based on a combination of citizenship and birthplace. For example, a Chinese-born Australian citizen would be restricted from viewing certain data, even if the US were to issue a waiver to share that technology with Australia. (As I understand it, this is because the waivers and restrictions inhabit slightly different portions of the law.) One of our Aussie friends notes this poses a serious obstacle to business because Australian law does not permit the government to discriminate based on birthplace.

ITAR costs American companies significant export business around the world in sales that would not harm US security--and that is no joke. This is one area of trade liberalization where the conservatives stymie themselves: it seems their xenophobic ideology gets in the way of their free-market ideology. It is part of a pattern, actually. The US tends to be rather overbearing in its dealings with foreigners, especially so during the past eight years. Anyone who wonders why ITAR is the way it is just needs to look at the Transportation Security Authority (TSA) or the INS.

I hope the Obama administration will look into streamlining ITAR. It would improve diplomatic and trade relations with our allies, help our allies better defend themselves (which might even relieve some pressure on the US military) and struggling US businesses economically over the longer term. [Note: many thanks to our Aussie friends for raising this issue and suggesting a post. I hope I have represented their views along with my own.]

12 comments:

Spotted Handfish said...

There is one other issue related to ITAR that Dr S didn't mention, that the list of prescribed countries can and does change. So one day you can find yourself in breach of the ITAR regulations even if you were compliant before.

It'd be interesting to know the legal ramifications of this, given that the US is effectively dictating who of their citizens another country can show information. To expand on Dr S's point above, in Australia, I was appalled to learn, exemptions from the discrimination acts in the various states are easy to come by. You have to be able discriminate, for example, if you have an Italian workers club or a women's support group where you want/need to exclude certain members of the population. Apparently companies, however, working with ITAR data have simply applied for exemptions in every state they work in. I, however, work for the Federal Government and it is not a good look for them to be applying for an exemption from discrimination legislation.

Of course the requirements are different for the US. If you are a naturalised citizen of the US, regardless of country of birth, you can see ITAR data. It is only naturalised citizens of other countries that are restricted.

This may seem fairly trivial: people can go and work on other things. Indeed some of the people I know who this effects are rather sanguine about it all. However, let's consider the case of one of our Air Force pilots who was born in Vietnam, emigrating with his parents at age one and considers himself Australian. He has just been told his career is very limited through no fault of his own since every fighter we have bought since the Mirage is US made.

The Law Talking Guy said...

As a matter of legal analysis, we would begin with the assumption that all of these restrictions should be unconstitutional under US law. The 14th Amendment is plain as day. However, courts have long read into the flat prohibitions on discrimination exceptions where a "compelling government interest" can be stated and where the exemption is "narrowly tailored" to meet that interest.

Unfortunately, Courts also have a habit, particularly Republican judges, of deferring to expressions of national security without even the remotest scrutiny. If General so-and-so says it's crucial to national security, who are they to second guess? I opposed Hillary Clinton for president in part on the grounds that I feared she would be exactly the same on national security matters, for fear of looking weak on military matters. It remains to be seen if President Obama will be much different. Eric Holder has not been encouraging on the extraordinary rendition issue.

I suspect that a case can be made that espionage is likely to be passed through, for example, Chinese ex-pats who have managed to get themselves naturalized in some Western country. I don't know what the facts are, but it wouldn't surprise me if someone could make such a showing.
But my guess is that there is a very specific origin for this sort of regulation. My guess is that it has to do with Russian emigres in the Cold War period.

It sounds to me that the regulation is not narrowly tailored today, if it ever was. Unfortunately, the supine judiciary will be unlikely to challenge it. This will remain a political issue only, and one where legitimate claims of right contend with the political potential of being seen as "soft on terror."

Raised By Republicans said...

I suppose it is impractical for the US to replace the categorical restrictions based on national origin with individual clearances. I would think that ideally you would want your allies to ensure that the clearances they use are as secure or better than the ones we have here in this country.

It's not like a 4th generation Australian of Irish decent isn't capable of selling secrets to the Chinese. These restrictions would seem to ignore that possibility while assuming that naturalized citizens are a security risk.

USwest said...

I don't know much about ITAR, but based on what I am reading here, I can see where it would be a problem, especially if hte requirements change all the time and the net cast over protected technologies is broad. But I have something that comes to mind as I read through these posts:

I wonder if the categorical restriction is in large part due to suspicion of naturalization processes in Western countries, including our own. What type of security vetting is being done by INS people granting citizenship?

I work in an organization with a lot of immigrants, many who hold US citizenship. Before 9/11 getting US citizenship must have been relatively easy judging by the number of suspicious characters I work with who have been naturalized. We once had proud, former SS member working with us who held US citizenship.

America is a nation of immigrants, be we are always suspicious of our immigrants. Remember how we interned the Japanese, many of them born and raised here. Remember the Chinese born scientist at Los Alamos who was accused of spying? Recently someone who works in my organization was arrested by agents in a local airport because he had a laptop with plans for "local disturbances" on it. He was a naturalized citizen from a hostile country. So while these limitations make the idealist in me sick, the pragmatic side of me gets it.

For many people, citizenship is a convenience, not a promise to protect and defend the new country. So to a certain degree, the naturalization process relies on trust between the new home country and the émigré. I imagine something similar goes on in all countries, western or otherwise.

Then there are those who have dual citizenship, which is another wrinkle.

Pombat said...

LTG, RbR and USWest: in your discussions about the security risks of a naturalised citizen born in another country you all seem to be missing a very important point - the US views its own naturalised citizens rather differently to those from other countries. If, for example, twins were born in whichever country the US doesn't trust today, and at one month old one moved to the US and became a citizen, whereas the other moved to Australia and became a citizen, only the US one would be allowed to see the data. In my view, it's a very hypocritical piece of legislation.

It's also damaging to the US in terms of its reputation with its allies: there was a running joke where I used to work in the UK that you had to think hard about sending the US lowly classified data that you'd generated yourself, because they'd reclassify it and tell you you weren't allowed to see it anymore.

The Law Talking Guy said...

For the US to say that it trusts its naturalization process more than that of other countries is arrogant, not necessarily hypocritical. It would be helpful in this discussion if we actually knew the justification advanced for the rule; sadly, we don't.

Dr. Strangelove said...

The US State Department ITAR FAQ regarding foreign persons offers the following justification:

Question: "What if the foreign person’s place of birth is different from the country he/she now resides in and holds citizenship from?"

Answer: "This would bring into question the issue of dual nationality and whether the individual had ties to his country of birth which would indicate a degree of loyalty and allegiance to that country. The license would be considered on the basis that it could be an export to both countries. Normally, this does not present a problem unless the country of birth is proscribed under 22 CFR 126.1 in which case we have to secure additional information to confirm lack of significant ties to the country of birth. [My Italics]"

USwest said...

Well, Pombat, if you haven't noticed, we in the US aren't terribly talented at the "black arts" they way the Brits and Aussies are. Take note of the crappy intelligence we get and that we produce. We aren't terribly conniving as a people, but rather naive. And take note of how easily the nastier bits of our intelligence world get exposed. Every secret organization in the world tortures. Ours does it, and they are clumsy about it and easily exposed. We lack the cold bloodiness of the Mossad and the brutal elegance of the Brits. We prefer to sleuth using computers rather than agents on the ground. And in saying this, I am not trying to backhandedly insult the Brits, Israelis or the Aussies. You need to be elegant, conniving, and cold blooded to be good at intelligence work. So it really is all about us and our shortcomings.

I do understand your frustration, and I do see the absurdity in it. I watch Spooks (MI-5), and to the extent that this mirrors reality, the American posture in intelligence matters is arrogant, but behind that arrogance is, I think, self-consciousness and a good deal of insecurity. It tells you more about us than it says about you. But I know it is rather inconvenient when you have to work with it.

USwest said...

Well, Pombat, if you haven't noticed, we in the US aren't terribly talented at the "black arts" they way the Brits and Aussies are. Take note of the crappy intelligence we get and that we produce. We aren't terribly conniving as a people, but rather naive. And take note of how easily the nastier bits of our intelligence world get exposed. Every secret organization in the world tortures. Ours does it, and they are clumsy about it and easily exposed. We lack the cold bloodiness of the Mossad and the brutal elegance of the Brits. We prefer to sleuth using computers rather than agents on the ground. And in saying this, I am not trying to backhandedly insult the Brits, Israelis or the Aussies. You need to be elegant, conniving, and cold blooded to be good at intelligence work. So it really is all about us and our shortcomings.

I do understand your frustration, and I do see the absurdity in it. I watch Spooks (MI-5), and to the extent that this mirrors reality, the American posture in intelligence matters is arrogant, but behind that arrogance is, I think, self-consciousness and a good deal of insecurity. It tells you more about us than it says about you. But I know it is rather inconvenient when you have to work with it.

Spotted Handfish said...

To a certain extent I respect the US's desire to protect their own intellectual property and self-made dominance in the military field. I just think the legislation is not terribly well thought through. I don't have a solution, though, on how you fix it.

In my job now I will be exposed to ITAR controlled data, and I have to decide and supervise a range of people across my organisation. Australia has had some very strong immigration patterns including a large number of people from Vietnam during the 70s. (I loooove pho soup which is a wonderful addition to the Melbourne culinary scene. That really has nothing to do with anything other than me being hungry.) I am liable for fines if ITAR data is seen by people who are disallowed, like Vietnamese. Australian law says I can't ask people's origin as his is discrimination and I risk fines for doing so. If the US regulation said something like ITAR data may only be seen by people satisfying the local countries security requirements then maybe we have an out.

I think I said all that before, but this is affecting my daily work. I think I'm getting a little frustrated...

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