Urgent Message to Congress-Nuclear Triggers to Libya, Missile Guidance to China, Air Defense to Iraq, Arms Supplier to the World: Has the Time Finally Arrived to Overhaul the U.S.
Sievert, Ronald J., Texas International Law Journal
I. A POST COLD WAR HISTORY OF DANGEROUS AND REPEATED FAILURE
Surprise, when it happens to a government, is likely to be a complicated, diffuse, bureaucratic thing. It includes neglect of responsibility, but also responsibility so poorly defined or so ambiguously delegated that action gets lost .... It includes straightforward procrastination, but also decisions protracted by internal disagreement. It includes, in addition, the inability of individual human beings to rise to the occasion ....1
So that's the problem. What might be the solution? For starters, international controls over the traffic in nuclear materials and technology ought to be made something more than the joke they currently are.2
The Export Administration Act (EAA)3 and the Arms Export Control Act (AECA),4 the primary statutes forming the foundation of the U.S. export control regime, were first enacted and implemented during the Cold War. The purpose of the EAA, as stated by Congress, was to restrict the sale of scarce materials, to utilize exports to further U.S. foreign policy, and to advance the primary and overriding interest of protecting our national security.5 The AECA, while recognizing that "free and independent countries have valid requirements for effective and mutually beneficial defense relationships," stated, as its ultimate goal, that U.S. policy should "exert leadership in the world community to bring about arrangements for reducing the international trade in implements of war."6 To this end the executive branch was directed to "check and control the international sale and distribution of conventional weapons" and adhere "to a policy of restraint in conventional arms transfers. The Trading with the Enemy Act (TWEA),8 International Emergency Economic Powers Act (IEEPA),9 Anti-Terrorism and Effective Death Penalty Act (AEDPA),10 Nuclear Non-Proliferation Act (NNPA),11 various U.S. Treasury directives (e.g., Office of Foreign Assets Control (OFAC)),12 and other specifically targeted export legislation and regulations have also had the underlying purpose of furthering U.S. domestic and global security interests.13
Although our export control statutes may have been somewhat effective during the course of our long struggle with the Soviet Union and its client states, their post-Cold War performance in meeting the stated goal of insuring national security has been dismal. Between 1989 and 1990 the Haliburton Company of Dallas, Texas, sent to Libya a number of pulse neutron generators "that could be used as nuclear trigger mechanisms."14 U.S. News and World Report has noted that United Nations inspectors found that, in the six years before the Gulf War, U.S. exporters shipped $1.5 billion in equipment to Iraq-including $100 million in high speed computers-and that a significant portion of these exports were directly utilized in Saddam Hussein's nuclear weapons program.15 Congressional hearings subsequently confirmed that Iraq's nuclear, missile, artillery, and fire control programs were all dramatically enhanced by the purchase of U.S. technology.16 Three years after the General Accounting Office reported to Congress that there were inadequate export controls over the shipment of U.S. missile technology to China,17 government officials disclosed that the Loral and Hughes aerospace corporations had exported to China information and technology which could be expected to greatly increase the accuracy of Chinese intercontinental ballistic missiles and their ability to hit specific targets in the United States.18 In October of this year, U.S. aircraft were repeatedly attacked while patrolling the no-fly zone by an invigorated Iraqi air defense system. Observers traced the sudden improvement in this system to the installation of fiber optic technology sold by the United States to China and subsequently installed by Chinese engineers in Iraq.19
Efforts to achieve the AECA's goal of "reducing the international trade in the implements of war" and executive branch restraint in arms transfers have been equally unsuccessful. …