AUKUS can work without gutting US export control laws

AUKUS can work without gutting US export control laws

Time Stamp: November 30, 2023 7:37 AM
Source Node: 2405142

The United States has the most comprehensive series of military export controls in the world, implemented through the International Traffic in Arms Regulations. Yet, this year those controls have faced their biggest challenge in a decade – an attempt from industry and some in Congress to tar it as a threat to U.S. national security, and a barrier to the AUKUS security partnership between the U.S., U.K., and Australia.

Lawmakers must resolve differences in AUKUS-related sections of the Senate National Defense Authorization Act (NDAA) over the next few weeks. As they do so, representatives should preserve the traditional deal offered to allies requesting military-industrial partnerships: ITAR exemptions in exchange for export control alignment. This deal would encourage collaboration amongst AUKUS partners while ensuring that foreign adversaries can’t siphon U.S.-origin weapons and military technology through American allies because of discrepancies in our export control regimes.

The AUKUS-ITAR debate is a false dilemma created by the shifting focus of the partnership since its announcement in 2021. While AUKUS was originally about the transfer of nuclear propulsion technology for an Australian submarine fleet, it has since been reframed into an ambitious program to collaboratively develop advanced military capabilities in artificial intelligence, hypersonic speed, cyber and quantum technologies, among others.

It is true that ITAR compliance isn’t easy, and many military producers and governments would prefer to have the perks without the paperwork. Two bills currently before the House would do just that, by providing blanket exemptions to the ITAR for AUKUS partners – no strings attached.

Another proposal in the Senate (the TORPEDO Act), creates a more limited exemption while eliminating other export barriers, but ignores disparities between U.S., U.K., Australia military export controls. A third proposal, embedded in the Senate defense authorization legislation, provides the most responsible choice – targeted exemptions and expedited technology transfers in exchange for export control alignment with the United States.

After all, while accelerating AUKUS innovation in quantum, cyber, AI and other technologies is a laudable goal, doing so by reducing oversight on U.S.-origin technology undermines the purpose of the pact and increases the risk of both espionage and illicit technology transfer.

The ITAR regime has long been a source of friction between the United States and its allies, forcing military industry to keep a close eye on U.S.-origin military articles and services. Exporters are required to register with the Directorate of Defense Trade Controls (DDTC), and apply for export licenses for articles and services on the U.S. Munitions List (USML) – including both tangible weapons, equipment and components, and intangible technologies, software, and technical data.

The controls are “sticky” and extraterritorial; each subsequent transfer or reexport of an ITAR-controlled article or service requires another license, even if it has been incorporated into a larger product. While the ITAR doesn’t exclude dual- and foreign nationals from handling controlled articles and services, it does consider their access (even within the U.S.) to be an export requiring a license. Tracking these transfers and applying for licenses imposes rigorous compliance requirements on both U.S. and non-U.S. companies, and can limit open information-sharing and collaboration.

Indeed, ITAR critics like to argue that U.S. controls are an evolutionary throwback, locked in ice like a desiccated mammoth. Yet over the last 15 years, the US. government has revised the ITAR to ease the export of low-risk military goods and services to our partners. The USML has been shortened, the number of annual license requests has shrunk, and new mechanisms have been created to facilitate exports and transfers to trusted partners. Some of these reforms, like moving many firearms to the less restrictive Commerce Control List (CCL), are concerning for other reasons, yet many, like the creation of bilateral defense cooperation treaties with Australia and the U.K., their addition to the National Technology and Industrial Base (NTIB), and the pilot Open General License (OGL) program have somewhat eased the burden of ITAR-compliance for Australian and British military producers.

Yet there are weaknesses in U.K. and Australian military export controls that closer alignment with U.S. controls would mitigate. Both lack regulatory mechanisms related to the transfer of data and technology, which could be exploited by China and Russia. To cite one example, a former U.S. Marine accused of training Chinese pilots in classified tactics is currently avoiding extradition from Australia because his crime (a violation under the ITAR) is not recognized under Australian export control law. Australian controls also don’t apply to controlled technology transfers that occur within Australia, no matter the nationality of the recipient.

U.K. government reporting indicates a surprisingly high proportion of strategic exporters are non-compliant with U.K. regulations – even after repeat visits. Despite this fact, the U.K. has only successfully prosecuted four strategic export violations since 2016.

Additionally, any ITAR exemption given to Australia and the U.K. will need to be defended to NATO member countries and other close allies should they demand similar exemptions. It would be best if Congress continued to require recipients of an ITAR exemption to align their export control regimes with the U.S. (as it did with Canada decades ago), since this sets a high bar for any future AUKUS expansion. Lowering the bar could catalyze a flurry of AUKUS “applications” from other allies and a series of diplomatic dilemmas in Washington – especially if New Zealand and Canada join, and AUKUS (like the Five Eyes intelligence-sharing partnership) begins to resemble a new Anglo alliance.

Despite pressure from industry, Congress shouldn’t abandon the normal deal: ITAR exemptions for regime alignment. Only the “AUKUS Matters” proposal attached to the Senate NDAA insists that the U.K. and Australia reach this standard before benefiting from increased access to U.S.-origin military articles and services. Congress must not allow AUKUS to become a “trojan horse” to undermine ITAR for the sake of commercial interests and at the expense of national security.

Paul Esau is a 2023 Herbert Scoville Jr. Peace Fellow at the Wisconsin Project on Nuclear Arms Control; Valerie Lincy is Executive Director of the Wisconsin Project.

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