Mar
26
Chi Mak Export Trial Begins
Posted by Clif Burns at 8:54 pm on March 26, 2007
Category: Arms Export • Criminal Penalties • DDTC
The trial of Chi Mak and other members of his family for export of ITAR-controlled technical data begins this week. An article on the upcoming trial by New York Sun reporter Josh Gerstein, who has been following this case with some care, has this interesting tidbit:
Mr. Kaye [Chi Mak’s defense attorney] said the government made little effort to safeguard the material. “As you can see in the pleadings … every document in this case was distributed at a public conference,” the attorney said.
Material in the public domain is usually exempt from export controls, but the government argued that an embargo imposed on China after the Tiananmen Square massacre in [1989] made it illegal to share even widely disseminated defense materials with Beijing.
Say what? Is the government claiming that it is a felony to provide to the Chinese public domain data that the Chinese could have obtained on their own?
According to Section 120.11(a)(6) of the ITAR, technical data doesn’t include material distributed at a public conference. And if the information wasn’t technical data, it’s export would not, as charged by the Second Superseding Indictment, violate the provisions Section 127.1 of the ITAR which forbid export of technical data. Furthermore, nothing in the original order imposing the arms embargo on China or the subsequent amendment to the ITAR to reflect the embargo changes this in any respect.
But Section 127.1 of the ITAR also forbids providing defense services to foreign person. Defense services are defined in Section 120.9(a)(1) as the
furnishing of assistance . . . to foreign persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of
defense articles
The government’s contention can only make sense if it is claiming that provision of public domain technical data to a foreign person is a provision of a defense service in violation of section 127.1. But if this is the government’s claim, then there is no reason for the public domain exception to the definition of technical data. Every provision of technical data, whether or not it is in the public domain, is by definition a defense service. And activity once thought to be permitted under the ITAR would be a felony.
We will certainly be following this trial with great interest.
(Hat tip to reader Creighton Chin at CPII who brought the Gerstein article to my attention.)
UPDATE: Josh Gerstein read this post and then kindly sent me a copy of the prosecutors’ brief on the public domain issue. Their argument is even worse than I imagined. I’ll post it, along with my comments, later today.
SECOND UPDATE: My comments on the prosecution’s brief on the public domain issue are here.
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Copyright © 2007 Clif Burns. All Rights Reserved.
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24 Comments:
If this is not another Wen Ho Lee I don’t know what is. LA Times originally reported this last year, and it was clear the original espionage charges had to be dropped due to government misconduct:
– There were no classified documents involved.
– the alleged map to Knolls Nuclear Lab turned out to be direction to motel on a trip to Knolls year ago.
And here’s the most shameful part. With no charge to get Tai Mak’s wife, our government prosecutors decided to charge her with “fake marriage”, insinuating she whored herself out.
Shame on us America. The anti-Chinese hysteria in our nation’s history continues today.
ITAR 124.1 says, “The requirements of this section apply whether or not technical data is to be disclosed or used in the performance of the defense services described in 120.9(a) of this subchapter (e.g., all the information relied upon by the U.S. person in performing the defense service is in the public domain or is otherwise exempt from the licensing requirements of this subchapter…”
Most recent Consent Agreements contain a statement whereby the respondent acknowledges the definition of defense services, even when no technical data is involved or when the data is in the public domain.
Export Guy — I read those provisions as addressing the fact that there are defense services other than the disclosure of technical data. For example, if you are providing training to foreign troops all of the tech data you provide might be in the public domain, but you are still providing a defense service because you are training troops. The issue arises where the only defense service being provided is the provision of tech data and if so, is it still a defense service if the tech data is in the public domain.
Charles Liu – You need to take your blinders off and stop putting down America. Things like this does happen. This is why we have courts to find out the truth. Let it “play-out” before you pass judgement.
How do you draw the line between assistance (training) and furnishing? Since 120.9(a)(1) is so broad (assistance [including training]… in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of defense articles) is this at all surprising? Defense Service means any of the three definitions, therefore State Department will always use the broader definition to swallow the narrow.
The problem I see is that I don’t see any way of understanding when a marketing discussion provides too much “assitance.” I might provide a customer with public domain data to help them understand how my product is like my competitors. While it might be simple information it could easily assist the customer in the use of the defense article.
Too late Tim, our government already passed the judgemnt on Chi Mak. I’m sure it does happen, but our laws and constitution say Chi Mak is innocent until proven guilty.
But last year our government saw it fit to leak the sealed indictment to Bill Gertz, a well-known China alarmist. Now this case continue to be labeled as “spy/espionage” eventhough the espionage charges wer all dropped last year due to government misconduct and lack of evidence.
Why wasn’t the ITT case labeled as espionate? Why weren’t they slapped with FARA violation? The infraction were the same.
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Eofn, I agree with you and Mr. Burns that this “defense service” is too nebelous. It reminded me of the “material support” stuff from our war of terror.
BTW, here’s Mr. Burns’ NY Sun interview:
http://www.nysun.com/article/51299
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As someone of Asian descent, I can’t help but imagine a resurgent anti-Chinese hysteria in America replacing the olive-skinned muslins at Guantanamo Bay with people like Dr. Wen Ho Lee, Chi Mak, and me.
DoJ has become not just aggressive but down right unprincipled in its legal arguments in criminal export control cases, ignoring well-settled principles of statutory construction, and advancing the argument that any interpretation of any of the export control statutes is a political question not subject to review by the courts. Its another version of the”inherent powers” doctrine devised by John Yoo and other so-called Federalists. They rely extensively on the dicta in Justice Sutherland’s opinion in US v. Curtis-Wright, notwithstanding a long-line of earlier cases in which the courts routinely reviewed the legality of the Executive Departments acts in enforcing embargoes and trading with the enemy.
Here’s NY Sun’s report on the DoJ grand jury leak to Bill Gertz that smeared Chi Mak:
http://www.nysun.com/article/44099
It matters not if the espionage charges were later dropped. The damage has been done already; Chi Mak is convicted in the court of public opinion and media sensationalism.
Charles, do you really feel like you’re going to end up at Guantanamo Bay? Aren’t you going overboard just a bit? If anyone is starting mass hysteria, its you my friend. Yes, the government play games, but don’t follow them down that same dark road. When this trial started, nothing has happen to me. I still have the same friends, co-workers, nobody has came busting into house and searching for files/papers, taking my computer and asking me “who do I know in China?”…..nothing!! Life is good. So please again SIR!!, let us see what happens before we pass judgement.
Tim, if you stand by and let it happen to Chi Mak, you will be next. It’s that simple.
As to not passing judgement, again it is too late since our government has already passed judgement on Chi Mak by leaking the indictment.
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In other cases when dealing with our government, my activism has garnered veil threats like FARA prosecution, simply because of who I am.
You are in no position to pass judgement on me until it happens to you.
See, it just happened again. Today AP had to issue a correction on the misreporting (espionate, millitary secrets):
http://www.mercurynews.com/news/ci_5593436
But guess what, the damage was already done last year when the prosecution illegally leaked the indictment to well known China alarmist Bill Gertz.
Now Chi Mak’s case continues to be tainted by this, never mind the original espionate charges were all withdrawn after the government’s “classified information” allegation turned out to be a lie.
Charles, I’m not passing judgement on you; please don’t get me wrong. I just want you to slow down a bit and relax. If the government wanted to lock-up all Asians, we would not be here responding to each other. Also, what you say is true about “veil threats”, I would like to see some comments or something. I just want to know where you are coming from. I’m just trying to keep myself open to all points of view.
Tim, if you were Chi Mak would you say “slow down”? Our government slandered him, with serious charges vanished Mak stayed in jail.
The victims of Japanese-American internment was on TV couple days ago talking about the injustice. That was less than 50 years ago.
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As to my personal experience. Last year I emailed a congressman some research damaging to his anti-China stance. When I called him to follow up his staffer accused me of working for the Chinese government, and told me I should register myself as a foreign agent.
I immediately registered a complaint with my congressman. It’s been 6 month and nothing has happened.
Charles, the reason I said “slow down” is because the stuff that you are saying makes you sound like you have a “secret agenda”. I will never be in Chi Mak shoes because I will not put myself in that position. The things you are saying make me question your motive. It seems like, from your writings, that it’s ok to steal and not any consequences for your actions; just because you look or act different. If he did it, then he needs to pay the price, if not, then he will be able to go home and retire like he said.
Tim, you are missing the point. Chi Mak didn’t steal anything. I can not agree with you, because:
1) you seem to have judged Chi Mak, just like the government. I must remind you again Chi Mak is innocent until proven guilty.
2) I already explained to you my personal experience, and yes I am motivation by that. Aren’t you judging me with that “secret agenda” stuff? You are in no position to judge me until it happens to you, especially after I’ve told you what happened.
Charles, that is what I’m saying…..let him have his day in court!!! But it seem like you just want him to be release, period. I’m willing to wait and see what happens in court. But you don’t want him to go to court at all. Yes, Mr. Mak is innocent until proven otherwise.
I think I never judge you. If I did, I would sound like that staffer you talked about. I’m just trying to understand how did you get to this point, nothing more.
And you did jude me: “If anyone is starting mass hysteria, its you my friend.” What is that?
I’m sure as you would demand for yourself, let the Mak case go to court without being tainted by government misconduct.
Short of that, Chi Mak shouldn’t even be subject to repeated indictment, none the less a show trial based on twisted reasoning.
Charles…., yes we have different opinions, but one thing I’m trying to do is…find out where you coming from my friend, that is it. I know you have a strong opinion about this, but in my statement to you on April 5th, is because, you and I don’t have all the facts.
How can you make a decision on news info and web blogs??? Unless you really have some other real info. You really don’t know what the government has on Mr. Mak or you really don’t know what Mr. Mak did or did not do.
That is why I’m keeping an open mind. You my friend are just jumping to conclusions; just because it’s the government. If you know for a fact he is innocent, please let me know so I can be with you 100%; but I’m not going give someone a “free ride” just because they are chinese like me and/or betraying this country.
Tim, your betraying this country comment says it all. It’s obvious you do not believe in our constitution.
I am 100% certain Mak is innocent; he has not been found guilty. Until his guilt is proven, our constitution says Mak is presumed 100% innocent.
And no, it’s not because it’s the government; it’s the fact our government has abused it’s position in the prosecution of the Mak case (leaking indictment; false indictment of classified documents.)
Hello Charles, you know..,I like the way you twist and turn everything around, good, but not good enough. I will stand-by every comment I have written on this site. If you get a neutral third party to read my comments and yours…they would come to a different conclusion than you. I believe in the constitution more then what you believe my friend. I’m not the one who is “putting down” the country. I’m not the one who is saying “let everyone go” regardless if the government has evidence or not. It’s you, not me!! But, I like to read your comments and I can see we will not agree on anything here….even though I have tried.
timothy is probably a cHRISTIAN, a gwei-loh who happens to be asian, or a pro-independence taiwanese goon pretending he’s offering a level headed analysis of the situation. The U.S. government purposefully through gross distortions, outright-lies, and the use of legalistic semantic-parsing games( a practice they demonstrated throughout this administration such as with IRAQ, other so called “Chinese-espionage” cases, and that articulate GONZALES), to create an atmosphere of persistent harassment and intimidation among the Chinese scientific community (the government just only want to use our intellectual power, use us up, and then dispose of us in the trash) so that we become distrustful of each other…because “who knows where this Chinese spy is lurking among us” and effectively” put us in our place” through paralysis from FEAR.
Go ahead and hide like a litte PUNK. Why not be a man and put your name like everyone else and stop hiding. If you believe in what you are saying, you would not hide. You are a COWARD!!!!, whoever you are. I have more respect for Charles than you. So…, go back to your hole and don’t come out again. We will all happy for it. Peace.
The comments section is to discuss the substantive issues not to engage in personal attacks or name calling. If this continues, I will have to start deleting comments.
Sorry Clif…..I should not let people like that get under my skin.
