They did it again

First of all, I can't believe I totally scooped the ExportLawBlog on this story. Clif Burns runs a tight ship over there, so I'm assuming this is the one and only time I will beat him to an export control story.

What is left for an administration that has secretly signed and negotiated a treaty with India that punches a huge hole in our nuclear export control regime and another that punches a hole in defense export procedures for Great Britain? Go for a hat trick by steathly negotiating and signing a similar arms trade treaty with Australia!

In a very low-profile meeting on September 5th, President Bush and long-serving Australian Prime Minister John Howard did just that. The State Department issued a fact sheet on the subject that is pretty light on the details, but I would bet that the Aussies are getting the same deal with gave the Brits a few months ago.

Both Bush and Howard mentioned the treaty at their 'joint press availability' that day. Howard's statement danced around the details and as usual, Bush's statement was so inarticulate that he didn't need to do the same.

Frankly, I am a little surprised by this latest defense trade treaty on two accounts. Some of the folks in the defense cooperation community of the Pentagon were at least aware of the British DTCT a few months before it was signed. The Australian treaty, on the other hand, came as a complete surprise.

Moreover, I am surprised that the Bush administration signed a second DTCT before securing the first one. They have no conception of how the Senate will react when the first DTCT comes up for Congressional review. It is also my understanding that the U.S.-UK implementing arrangements are still being hammered out between State, the Office of the Secretary of Defense and the British Ministry of Defence.

Bringing the Aussies to the table right now is probably going to spread our already over-tasked U.s. negotiators out even more -- and I would know, they are about 2 months behind on approving some agreements my office has negotiated.

I hear one OSD lawyer is so busy that he has to come in on Saturday and Sunday just to do his regular office work. If I was in his position, I would just walk away from that job. Life is way to short.

Spinning back up

I'm back finally and I'm working on a post about JIEDDO that I hope to wrap up in an hour or two. In the meantime, read this post from the Federation of American Scientists' Strategic Security Blog about the history of the recently signed (but still under wraps) U.S.-UK Defense Trade Cooperation Trade. It also makes a fairly convincing case for why the treaty is bad for America and the legislative process. Good stuff.

Of export controls and special relationships

Export controls are probably the least popular, but most important component of nonproliferation policy. They are the where the 'rubber meets the road' when it comes to stopping the flow of technology, weapons and money to proliferators, terrorists and other 'evil-doers.' Despite being both the largest economy and the largest manufacturer in the world, the United States has one of the most obtrusive and tight-fisted export control regimes as well.

Some would argue that this is the result of America's obsession with proliferation and its preference for trade sanctions as punishment, but that is a story for another day...

Booking Danno

So here is the situation: Vermont cop sees kid out tipping cows and a chase ensues. Kid crosses the Canadian border and the cop follows in hot pursuit. Cop loses kid and attempts to return to the U.S., but is arrested by Immigration and Customs Enforcement.

What was his offense, you may ask? Was it his hot pursuit into another sovereign state? No, but he did violate the Arms Export Control Act by bringing his sidearm across the border without either first obtaining an export license from the State Department or declaring it to U.S. customs agents.

Thankfully this situation has yet to occur, but in order to head-off this potentially embarrassing diplomatic incident, the U.S. and Canada are hammering out an international agreement to cover such an eventuality.

Just how far does that 'special relationship' go?

One of Tony Blair's last actions as the British Prime Minister was to quietly sign a defense cooperation treaty with the U.S. that will supposed loosen some of the export restrictions that have been hampering some security cooperation. This is an issue my office in the Pentagon deals with all the time because of the UK's close involvement in FCS and the F-35.

Back in late 2005-early 2006, the UK almost pulled out of the F-35 program after having invested $2 billion in the fighter's development. This was largely because the U.S. was refused to let the Ministry of Defense or British defense contractors hired to performance maintenance and upgrades on the F-35's on board software. The flap was eventually deflated with an agreement that guaranteed access to enough technology to give the British 'operational sovereignty' over their fleet of fighters.

One of the key hang-ups over this issue is how the U.S. and UK define exports. Under the U.S.'s International Trafficking in Arms Regulation, an export occurs whenever you give a controlled item or piece of information to a foreign person, firm or government. The UK system, on the other hand, merely applies the movement of items and information across geographical locations. The key difference here being that giving a foreign an U.S. export-controlled item in the U.S. constitutes an export, but the same would not be true of UK export-controlled items in the UK. This largely stems from the fact that the UK, like Canada and many European nations, cannot discriminate on the basis of nationality (i.e. dual citizens and non-permanent residents), whereas the U.S. does.

The interesting part of this latest agreement is the extent to which the UK is doing back flips in order to relieve export license requirements. The exact text of the treaty hasn't been released yet (we don't even have a copy at work), but the Society for British Aerospace Companies released a summary of its high points. I was particularly surprised to read the following paragraph:

Currently, information and material supplied by the US to the UK is usually passed under individual export licenses issued by the US Government to the exporter. This is protected by the receiving company in the UK as part of its contractual relationship with the US supplier, but this protection is not subject to UK legal constraints. In future, information and material supplied from the US under the treaty will have a UK security classification attached to it, which means that its handling is subject to the UK Official Secrets Act (OSA) and therefore enforcement action by HMG in the event of any transgression. This is a major departure for HMG, which has hitherto not offered any UK-based legal protection for the handling of material exported under license from the US. The step is particularly significant as the OSA covers any unauthorised transmission of classified items, irrespective of where it happens geographically or of the nationality of the recipient, whereas UK export controls apply only to the physical transmission of items outside of the UK. The significance of this step by HMG should not be under-estimated, but the British government believes it to be justified as an enabler for an improvement in the flow of sensitive material between the UK and US.

So if SBAC is reading the treaty correctly, the UK has gotten around the difference in our two export control regimes by agreeing to treat U.S.-origin export-controlled information and items as if it were classified -- even if it was not classified by the U.S. government. This extra layer of protection will apparently be enough to allow for unrestricted retransfer within an 'approved community' in the UK.

I won't comment on the UK's decision, but I will say this: Does anyone know the name of the firm that makes classified information safes for the UK government? It is time to invest in that company's stock because this treaty will lead to an explosion in the amount of classified information held by the UK government and its defense contractors.