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– Suzanne DiMaggio
Senior Fellow, Carnegie Endowment for International Peace
April 15, 2019
Letter to the Editor: Export Control Reform Tightens U.S. Arms Embargoes
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Rose E. Gottemoeller and Eric L. Hirschhorn

We would like to address a number of concerns raised by Brittany Benowitz and Barry Kellman (“Rethink Plans to Loosen U.S. Controls on Arms Exports,” April 2013).

First, the cornerstone of President Barack Obama’s Export Control Reform Initiative is rebuilding the nation’s control lists so that the administration can prioritize its controls. This prioritization does not mean that the administration is lowering its standards for ensuring that export controls prevent human rights abuses or that it is weakening U.S. arms embargoes. A careful reading of how the initiative is prioritizing controls will show that the new system will help the U.S. government do a better job of safeguarding vital technologies and will tighten U.S. arms embargoes.

Second, export control reform is a national security initiative and is unrelated to the National Export Initiative that promotes exports. At its heart, the national security review for the export control initiative was conducted by experts across the U.S. government to fundamentally reform the current system. Export control reform is intended to enhance U.S. national security and foreign policy by focusing resources on the threats that matter most, increasing interoperability with allies and partners by ensuring more timely access to U.S. defense articles during conflicts, and strengthening the U.S. defense industrial base by reducing incentives for foreign manufacturers to avoid or even eliminate their use of U.S. parts and components.

Third, the administration has not put forward any proposal to ease restrictions on the export of small arms. It is considering some consolidation of duplicative requirements that exist today, but this consolidation would not remove the requirement for an export license, regardless of which agency has licensing jurisdiction. Possible consolidation into one set of requirements is a commonsense approach that would make more efficient use of government resources and would ensure greater consistency and visibility for all agencies involved in the licensing and enforcement process. Consolidation also would make it easier for exporters to comply with the rules. As has been the case for all changes to the existing system proposed to date, any proposed changes to current export rules governing small arms will be published for public comment. The administration will continue to make all planned and actual changes available from a single webpage at www.export.gov/ecr/.

Brittany Benowitz and Barry Kellman respond:

The Obama administration’s efforts to enhance coordination of export controls and to focus on the most sensitive equipment deserve commendation. Our point of divergence is whether munitions transferred from State Department to Commerce Department control will be subject to the human rights and counterterrorism restrictions of the Foreign Assistance Act, including so-called Leahy vetting that prohibits the provision of munitions to foreign security forces that engage in human rights abuses. If not, there will continue to be serious cause for concern that shifting licensing authority to the Commerce Department will inadvertently lead to an increase in exports of atrocity-enabling military equipment to irresponsible actors.

    Fourth, unlike the State Department, the Commerce Department has a law enforcement branch with more than 100 special agents dedicated exclusively to criminal and administrative enforcement of export control violations, with all the requisite statutory law enforcement authorities. This special Commerce Department unit is in addition to the continued criminal enforcement of State and Commerce department regulations by the FBI and the Department of Homeland Security’s Immigration and Customs Enforcement. This means that any items moved to Commerce Department jurisdiction actually will be subject to more law enforcement oversight.

    Finally, the State Department’s ability to review proposed defense exports for potential human rights concerns under export control systems that it and the Commerce Department administer will not be diminished as a result of export control reform. The administration will continue to use its long-established criteria for assessing the potential risks to international stability and human rights arising from proposed exports of munitions and dual-use items.

    Export control reform will bolster, not diminish, the U.S. government’s ability to administer an effective export control system to address national security and foreign policy challenges, including human rights, in the 21st century.

    Rose E. Gottemoeller is acting undersecretary of state for arms control and international security. Eric L. Hirschhorn is undersecretary of commerce for industry and security.