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Arms Export Control Act

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Arms Export Control Act
Great Seal of the United States
Other short titlesArms Export Control Act of 1976
Long titleAn Act to amend the Foreign Assistance Act of 1961 and the Foreign Military Sales Act, and for other purposes.
NicknamesInternational Security Assistance and Arms Exports Control Act
Enacted bythe 94th United States Congress
EffectiveJune 30, 1976
Citations
Public law94-329
Statutes at Large90 Stat. 729
Codification
Titles amended22 U.S.C.: Foreign Relations and Intercourse
U.S.C. sections created22 U.S.C. ch. 39 § 2751
Legislative history

The Arms Export Control Act of 1976 (Title II of Pub. L. 94–329, 90 Stat. 729, enacted June 30, 1976, codified at 22 U.S.C. ch. 39) gives the President of the United States the authority to control the import and export of defense articles and defense services. The H.R. 13680 legislation was passed by the 94th Congressional session and enacted into law by the 38th President of the United States Gerald R. Ford on June 30, 1976.[1]

The Act of Congress requires international governments receiving weapons from the United States to use the armaments for legitimate self-defense. Consideration is given as to whether the exports "would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements."[2] The Act also places certain restrictions on American arms traders and manufacturers, prohibiting them from the sale of certain sensitive technologies to certain parties and requiring thorough documentation of such trades to trusted parties.

When the President is aware of the possibility of violations of the AECA, the law requires a report to Congress on the potential violations.

U.S. Immigration and Customs Enforcement (ICE) conducts an industry outreach program called the Project Shield America to prevent foreign adversaries, terrorists, and criminal networks from obtaining U.S. munitions and strategic technology.[3]

History

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From 1963 to 1973, 128 nations received $2.5 trillion in weapons and services, the majority from the United States. Law only required that the Secretary of State report “significant” arms sales to Congress, semi-annually. In the early 1970s, legislators moved to become involved in deciding to whom arm sales could be made and under what circumstances.[4] Concern over arms sales increased significantly in the summer of 1973, when news surfaced of a potential Nixon Administration sale of F-4 fighter-bombers to Saudi Arabia.[5]

In 1973, Norvill Jones, a staffer of the Committee of Senate Foreign Relations, tried to interest members in establishing a procedure by which Congress could review large arms sales. Finding no takers, Jones mentioned the idea to Paula Stern, then a foreign policy aide to Senator Gaylord Nelson of Wisconsin, later the Chairwoman of the U.S. International Trade Commission (1984-1986). Nelson approved the idea and introduced an amendment for a one-house veto over significant arms sales. Stern and Nelson settled on a reporting "tripwire" of $25 million, the cost of a squadron of F-5E's. Nelson has credited Stern with conceiving the amendment and supplying the persistence needed to steer the attention of the Senate to arms sales.[5] Nelson's proposed floor measure passed 44 to 43 in the Senate but a like House measure introduced by Representative Jonathan Bingham of New York was defeated.[4]

In 1974, a renewed attempt passed as the Nelson-Bingham Act of 1974. It provided that when the U.S. government offered to sell any defense article or service costing $25 million or more, the President must inform both Houses of Congress of the details, giving Congress twenty days to adopt a "veto" resolution. The Nelson-Bingham initiative worked "a profound transformation in arms export policy" and had a "significant impact on U.S. government policy, both on long-range planning and on several major individual sales."[4]

In 1975, President Gerald Ford's arms sale to Jordan led Congress to examine how to strengthen the Nelson-Bingham Amendment. A significant number of sale notifications had been allowed to be kept classified by the executive. The time period of Congressional review had been found to be deficient and the dollar level of $25 million as a tripwire had prevented a number of smaller sales from avoiding scrutiny. Members of Congress also sought to expand the scope of their review beyond government-to-government sales. The 1976 Arms Control Act incorporated these and other changes.[6]

The scope of the act was challenged by professors and universities, who felt that restrictions placed on foreign nationals, including international students and visiting professors, were excessive. In the 1980s, Professor Bruce Lusignan of Stanford University and President C. Peter Magrath of the University of Minnesota both openly violated the arms export control act with support of their institutions.[7]

Application

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In the 1990s, after a report from RSA Data Security, Inc., who were in a licensing dispute with regard to use of the RSA algorithm in PGP, the Customs Service started a criminal investigation of Phil Zimmermann, for allegedly violating the Arms Export Control Act.[8] The US Government had long regarded cryptographic software as a munition, and thus subject to arms trafficking export controls. At that time, the boundary between permitted ("low-strength") cryptography and impermissible ("high-strength") cryptography placed PGP well on the too-strong-to-export side (this boundary has since been relaxed). The investigation lasted three years, but was finally dropped without filing charges.

From FY 2004 to FY 2006 there had been 283 arrests, 198 indictments, and 166 convictions based on AECA violations.[9]

In 2005 the Government Accounting Office (GAO) did a study on arms exports since 9/11. The study noted that the system itself had not been changed since 9/11 since the system was already designed to counter such threats. The study did report that the processing time for arms cases increased starting in 2003.[10]

In 2006 Boeing was fined $15 million for unlicensed foreign sales involving a gyroscopic microchip or gyrochip with military applications.[11]

In March 2007, ITT Corporation was fined for criminal violation of the act. The fines resulted from ITT's outsourcing program, in which they transferred night vision goggles and classified information about countermeasures against laser weapons, including light interference filters to engineers in Singapore, the People's Republic of China, and the United Kingdom.[12] They were fined $100 million US dollars, although they were also given the option of spending half of that sum on research and development of new night vision technology. The United States government will assume rights to the resulting created intellectual property.[13]

In January 2009, Congressman Dennis Kucinich sent a notice to Secretary of State, Dr. Condoleezza Rice, that Israel's actions in Gaza since December 27, 2008 may constitute a violation of the requirements of the AECA. The AECA requires that each nation that receives a shipment of arms from the United States must certify that the weapons are used for internal security and legitimate self-defense, and that their use does not lead to an escalation of conflict. However, the AECA does not define "internal security" or "legitimate self-defense." Kucinich said that Israel's actions in Gaza killed nearly 600 and injured over 2,500, including innocent civilians and children in residential areas and civilian institutions like schools. Kucinich said that this may have violated the AECA because they didn't further Israel's internal security or legitimate self-defense, but increased the possibility of an outbreak or escalation of conflict.[14] The charges were denied by the IDF and no action has been taken under the act.[citation needed]

In July 2009 John Reece Roth, a former University of Tennessee professor, was convicted of violating the AECA and sentenced to 48 months in prison. Roth had a United States Air Force (USAF) contract to develop plasma technology to reduce drag on airplane wings. One application was for unmanned air vehicles (drones). Roth was accused of violating the law by sharing technical (not classified) data with Chinese and Iranian graduate students, and of having technical data on his laptop during a trip to China. Roth and others said that the AECA, as applied in his case, would violate academic freedom and force professors to discriminate against students on the basis of nationality.[15][16][17][18]

Harris Corporation prior to its 2019 L3 Technologies merger settled a $13 million export violation to Canada of unauthorized transfers of software, military radios and other military gear after a report of 131 alleged violations by the State Department's Directorate of Defense Trade Controls.[19] L3Harris Technologies also admitted that T7 robots had been temporarily transferred to Thailand, Singapore and Germany without proper authorizations.[20]

See also

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References

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  1. ^ "Gerald R. Ford: "Statement on Signing the International Security Assistance and Arms Export Control Act of 1976" July 1, 1976". Internet Archive. U.S. National Archives and Records. July 1, 1976. pp. 1936–1938.
  2. ^ 22 U.S.C. § 2778(a)(2).
  3. ^ "About Project Shield America". ICE web site. US Immigration and Customs Enforcement. Archived from the original on May 27, 2010. Retrieved September 13, 2010.
  4. ^ a b c Thomas M. Franck; Edward Weisband (1979). Foreign Policy by Congress. Oxford University Press. ISBN 978-0195026351.
  5. ^ a b “Congressional Role in Arms Sales,” Congressional Quarterly, April 10, 1982, p. 798
  6. ^ Tompa, Peter K. (1986). "The Arms Export Control Act and Congressional Codetermination over Arms Sales". American University International Law Review. 1 (1).
  7. ^ Owen, Robert C. (January 13, 1982). "Police state for scientists?". Record-Journal.
  8. ^ "Lost in Kafka Territory – U.S. News & World Report". Archived from the original on June 16, 2013. Retrieved August 24, 2017.
  9. ^ "Registration & Compliance". Office of Research Integrity, Florida International University. May 23, 2007. Archived from the original on June 13, 2010. Retrieved September 13, 2010.
  10. ^ "Arms Export Control System in the Post-9/11 Environment" (PDF). Government Accounting Office. Archived (PDF) from the original on August 8, 2010. Retrieved September 13, 2010.
  11. ^ "Boeing Company Arms Export Control Act Violation (QRS-11 Gyrochip)". Federal Contractor Misconduct Database. Retrieved September 13, 2010.
  12. ^ Lindsey, Sue (March 27, 2007). "ITT Fined $100M for Illegal Tech Exports". FOXNews.com. Associated Press.
  13. ^ https://www.theregister.co.uk/2007/03/27/itt_fined_for_illegal_exports/ "ITT Fined for Illegal Exports" Tuesday March 27, The Register; Drew Cullen
  14. ^ "Congressman Dennis Kucinich". Archived from the original on January 19, 2009. Retrieved January 15, 2009. "Israel May Be in Violation of Arms Export Control Act" Tuesday January 6, Press Release; Dennis Kucinich
  15. ^ "Former University of Tennessee Professor John Reece Roth Sentenced to 48 Months in Prison for Illegally Exporting Military Research Technical Data". FBI. July 1, 2009. Archived from the original on August 22, 2010. Retrieved September 13, 2010.
  16. ^ "University professor and Tennessee company indicted for Arms Export Control Act violations". US Immigrations and Customs Enforcement. Archived from the original on May 8, 2009. Retrieved September 13, 2010.
  17. ^ Why the Professor Went to Prison by Daniel Golden, BusinessWeek, November 01, 2012
  18. ^ From Ivory Tower to Iron Bars: Scientists Risk Jail Time for Violating Export Laws, by Sharon Weinberger, Wired, 17 September 2009
  19. ^ Freightwaves. Benzinga.com. (26 September 2019). "L3Harris Will Pay $13 Million Fine For Export Violations". Yahoo News website Retrieved 5 March 2022.
  20. ^ Marjorie Censer. (26 September 2019). "L3Harris agrees to $13 million settlement following ITAR violations". Inside Defense website Retrieved 5 March 2022.
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