Chapter 13
Regulation of Exports:

Lenin’s prophesy: “The capitalists will sell us the rope we need to hang them”

I. National Security and Foreign Policy Issues
A. Nations restrict exports of goods and technology for three basic reasons: 1. To protect national security – restricting the exports that could make a significant contribution to the military capabilities of any other country that could be detrimental to the U.S.

2. To implement foreign policy – nations may grant or deny trade privileges to further foreign policy objectives See p. 411 for a list of reasons

- As of 2010, the US had strict foreign policy trade controls, as well as restrictions on investment and travel, relating to 4 countries deemed to be “state sponsors of terrorism” = Cuba, Iran, Sudan, Syria

- Pres. Bush took North Korea off of the list

- Libya was also taken off the list after renouncing its attempts to possess weapons of mass destruction

3. To limit the sale of strategic goods and raw materials in short supply - Could apply to food, medicine, basic metals, or natural resources

B. Effectiveness of Trade Sanctions - Opponents and Proponents w/no clear consensus - However, to be effective, sanctions need universal cooperation

II. History of U.S. Export Laws

A. The Rationale
- U.S. concerns about technology and weaponry falling into enemy hands
Therefore, it regulates the export of arms, technology, commodities with military applications, and other strategic commodities including technical data, component parts, and chemicals

B. Development of the Legal Framework
- American Revolution: Congress outlawed exports to Britain

- Early 1900s: export controls in response to either war or emergency conditions

- WWII: export controls were reintroduced

- Export Control Act of 1949: reflected the archetypical battle between democracy and communism with export controls used as a way to ensure that the West proffered no economic or military help to the Eastern bloc

- The Act controlled the exporting of commodities with military applications to communist countries and gave the president the power to restrict exports based upon three criteria: national security, foreign policy, or the preservation of materials in short supply

- 1949 Coordinating Committee for Multilateral Export Controls (COCOM) - formed by the U.S. and six European countries to likewise control exports of technology to communist countries

- 1951 Battle Act (Mutual Defense Assistance Act) controlled arms exports, made official U.S. role in COCOM and tied foreign aid to compliance with the goals of export controls

- Mutual Security Act of 1954

- 1962 Export Control Act was strengthened (escalating U.S. Soviet tension) to authorize the denial of export licenses to ship goods “detrimental to the national security and welfare of the United States”

III. Currently: Export Controls on Commercial and Dual-Use Goods and Technologies
A. Export Administration Act of 1979 – forms the basis of current export regulations
- Export Administration Acts of 1969, 1974 and 1977 stated that the purpose was “to restrict the export of goods and technology which would make a significant contribution to the military potential of any other nation or nations which would prove detrimental to the national security of the United States.”

- 1979 Export Administration Act (EAA) - which acknowledged the necessity of balancing the need for trade and exports with national security interests.

Note that the act expired in 2001, but the regulations remain in effect pursuant to executive orders.

B. Mechanics of the Law
1. Purpose: to only control export trade as is “necessary to further fundamental national security, foreign policy, or short supply objectives”

2. Controls apply to four types of transactions:
- Export of commodities and technical data from the United States
- Re-exports of U.S. origin commodities and technical data among foreign countries
- Exports and re-exports from a foreign country of products with U.S. origin parts
- Exports and re-exports from a foreign country of products based on U.S. technical data (products designed from U.S. research and technical data)

3. There are many reasons for control of exports, such as:
- Antiterrorism
- Chemical and biological weapons
- Crime control, including illegal narcotics
- Missile technology
- National security
- Nuclear proliferation
- Regional stability

C. General inquiry under the law (Code of Federal Regulations) is encompassed in four basic questions:
- What is the item?
- Where is it going?
- Who will use it?
- What will it be used for?

D. BIS’s Red Flags
See list Ex. 13.1 p. 421

E. Compliance with the Law: Need an Export Management and Compliance Program
1. Creation of a system to maintain records for five years
Records to be maintained: invoices, shippers’ export declarations, bills of lading, and other shipping documents

2. Penalties: export violations are subject to administrative and criminal penalties
- The Bureau of Industry and Security may investigate and impose administrative remedies and civil fines, as well as detain shipments, issue temporary denial orders to prevent imminent illegal shipments, issue warning letters, and monitor compliance with the conditions of individual licenses.

- Civil penalties: up to $250K or twice the amount of the transaction per violation

- Criminal cases are based on willful avoidance ore conscious avoidance (purposefully avoided learning information, such as not asking relevant questions).

- Criminal Penalties: willful violations = up to $1 million and/or imprisonment for up to 25 years.

- Denial of export privileges or a “denial order” barring exports for a specified number of years.

IV. The President’s Emergency Powers During Peace and War
A. Trading with the Enemy Act (1917)
- To punish Americans who traded with the enemy - WWI
- Roosevelt used this act in 1933 to declare a domestic economic crisis
- 1970s significantly curtailed, repealing provisions except those curtailing trade with Cuba and North Korea

B. National Emergencies Act “NEA” (1976) (President Ford)
1. The President can declare a state of emergency, although the authority to act lasts only for one year
- President must consult with Congress first and
- report to Congress every 6 months

2. After 1 year, the President must ask Congress to renew authority

3. Congress votes every 6 months on whether to continue the emergency

4. Congress can terminate the national emergency declared by the President through a joint resolution of both houses of Congress

C. International Emergency Economic Powers Act “IEEPA” (1977) – where Is the threat coming from? Domestic or international?--> sets in this law.
-- Sets out the powers and scope of the remedies available to the President

1. President may declare a national emergency in the event of “any unusual and extraordinary threat, which has its source in whole or substantial part outside the U.S., to the national security, foreign policy, or economy of the U.S.”

2. President is allowed wide discretion to:
a. control international financial transactions, including the transfer of monies, goods, and securities to & from the U.S.

b. seize foreign assets held in U.S. banks or foreign branches of U.S. banks

c. impose a trade embargo with a foreign country and a wide range of economic sanctions
E.g. Nicaragua (ban on air flights), South Africa (computers, arms and nuclear equipment), Panama, Libya (ban on travel and freeze on Libyan assets), Haiti, Serbia, Sudan, Burma, Afghanistan (under the Taliban), and Iraq

D. USA Patriot Act (2001) (Bush) - Made significant changes to the IEEPA and other U.S. criminal statutes

- Key features: - created new federal crimes and penalties for terrorism, including attacks on mass transportation, harboring terrorists, possession of biological toxins or weapons, fraudulent charitable solicitation, and for providing material support to terrorists

- Modified immigration laws to give the government greater freedom to detain and deport noncitizens where the U.S. Attorney General has reasonable grounds to believe that an individual belongs to a terrorist group or jeopardizes U.S. security.

- Gives the U.S government greater flexibility to seize property of those who commit terrorist acts or who provide material support for terrorists

- Permits the president to order the confiscation of foreign property belonging to any individual, group or country that planned, authorized, aided or engaged in any attack against the U.S.

- Allows assets of an individual or organization to be frozen pending an IEEPA investigation into their links with terrorists

- Amends laws on financial transactions and bank secrecy so the government can better follow the trail of money supporting terrorists

- Expands record-keeping requirements for financial institutions

- Provides law enforcement with greater investigative tools to fight terrorism with less judicial supervision, expanding the government’s authority to conduct searches, permits nationwide execution of search warrants, allows use of “roving” electronic devices, monitoring of some e-mail and electronic messages, without a warrant.

- Expands the extraterritorial application of federal criminal law to terrorist acts committed against Americans or American property overseas

E. U.S. Sanctions on Trade with Cuba
1959 Castro took power
1960 Cuba nationalized the assets of U.S. citizens & firms w/o compensation
1961 Washington broke off diplomatic actions with Cuba U.S. sponsored an abortive invasion by Cuban exiles at the Bay of Pigs Castro proclaimed Cuba communist and began to ally it with the USSR
1962 Cuban missile crisis: fearing US invasion, Castro agreed to allow USSR nuclear missiles on the island - Resolution: USSR removed the missiles after US agreed to withdraw its missiles from Turkey

- 1963 Cuban Assets Control Regulations passed in an attempt to isolate Cuba economically & politically

Helms-Burton Act toughened sanctions in the 1990s controversial a . Allowed U.S. citizens with claims of confiscated property to file private lawsuits in U.S. courts

b. Requires U.S to deny entry visas to any foreign person who traffics in property that was confiscated by Cuba after 1959

c. Calls for sanctions to end once Cuba has a democratically elected government.

- 2000, U.S. government legalized some food and medicine sales to Cuba

2007 Fidel Castro steps down and Raul Castro took over as president

2008 May – bans on private ownership of mobile phones and computers lifted

2008 June EU lifts its diplomatic sanctions (imposed in 2003) & in October restored its ties and opened up trade.

2008 November – ties with Russia revitalized and China signed a trade agreement with Cuba.

2009 March – congress voted to lift restrictions on Cuban-Americans visiting Havana and sending back money

2011 January – Pbaba relaxes restrictions on travel to Cuba

Suggested reading: Dreaming in Cuban (novel)