Comments on: House Committee Passes Export Reform Proposal

By: JH

JH — Tue, 26 May 2009 14:37:08 +0000

I also read the satellite provision as limiting the power of the President to remove satellites and associated equipment from the USML unless the removal results in the items being classified in an ECCN that does not allow export to China.

(Thus only partially undoing the FY99 National Defense Authorization Act requirement that all satellites and associated equipment, including commercial and research satellites, be ITAR-controlled.)

By: Josh

Josh — Mon, 25 May 2009 12:13:43 +0000

Regarding the satellite provision, I read it as limiting the power of the President.

Section 826(a) of the bill permits the President to remove satellites from the USML (1) consistent with the procedures of Section 38(f) of the Arms Export Control Act, and (2) consistent with Section 826(b)(China) and (d) (90 days notice). But under Section 38(f) of the AECA the President is already empowered to remove items from the USML; thus the bill only adds the China restriction and the 90 days notice restriction to that power!

Am I missing something?

By: Hillbilly

Hillbilly — Fri, 22 May 2009 18:44:07 +0000

IEEPEA also arguably changed the scienter requirement for criminal prosecutions from willfully violating IEEPA to willfully committing an unlawful act. That brings it closer to the way DoJ has been drafting indictments and arguing in recent criminal cases, i.e., instead of tracking the words of the statute, DoJ has been crafting the indictments as willfully exporting without a license, which they know most juries and certain judges will interpret as simply (1) willfully exporting and (2) not having a license, instead of willfully violating some very complex regulations. Most jurors go into the court with the misconception that you have to have a license for all exports or at least for exporting and once some AUSA proves that the defendant knew it was exporting something to some “foreigner”, juries are ready to hang the defendant themselves. Amending the AECA to mirror IEEPEA will increase juror confusion and let DoJ rack up a higher body count.

The folks at the Trade Ministry in Beijing are no doubt very pleased.

By: Hillbilly

Hillbilly — Fri, 22 May 2009 15:37:47 +0000

Kind of reminds me of the sausage-making process that resulted in IEEPA. Roger Majak, who was the staff director of what was then HCFA trade subcommittee and who is the nicest guy but not a lawyer, drafted IEEPA based on the presumption that TWEA 5(b) was the primary authority for all embargo rules, which was a true assumption for asset snatching and financial transactions controls, but not for trade controls: Trade is defined in TWEA section 2, and trade controls were authorized under section 3. Under standard rules of construction the fact that trade is specifically the subject of Section 3 means that it is excluded from section 5(b), so when Congress passed IEEPA it really only authorized foreign asset and financial transaction controls. Certainly, the Senate Report doesn’t mention trade controls. Furthermore, the EAA was the subject of the third chapter of the same statute that contained IEEPA, so no one can claim that the drafters were ignorant of the existence of EAA. So reliance on IEEPA for statutory authority for trade controls is meretricious at best.

Given the negative impact of the trade deficit on GDP, its about time Congress gave serious attention to exporting. The time for amateur hour when drafting export control statutes is over.