On Tuesday my colleague in our London Office, Anita Esslinger, forwarded to me a directive from British export authorities adding “electro-statically powered explosive detectors” to its list of export-controlled items, otherwise known as the 2008 Export Control Order. Anita wondered if the U.S. was planning on doing the same thing. I wrote back that I didn’t think it would need to since explosive detectors were already covered under ECCN 1A004.d.
In fact, I was wrong, because these “electro-statically powered” explosive detectors aren’t covered by ECCN 1A004.d, but not for the reason that you might imagine, but rather for what might be called a metaphysical reason. These detectors aren’t covered by the ECCN because they don’t work, and, thus, aren’t really bomb detectors. Â At this point, before you accuse of me having read too much Aristotle, hear the rest of the story.
The British order is directed at the ADE-651, a device marketed by a British company named ATSC, which is run by Jim McCormack from a former dairy farm in Somerset. The device, according to ATSC, can detect explosives from a distance of 1 kilometer. Â It can also, allegedly, detect other items such as elephants and dollar bills from the same distance, depending upon whether a card programmed to detect elephants or dollar bills is inserted into the device’s card reader. As a further miracle of modern technology, the device has no power supply but is powered by the static electricity generated by the user, hence, the reference to them as “electro-statically powered” in the amendment to the 2008 Export Control Order.
A BBC Newsnight investigative report (video embedded at the end of this post) examined the device and found that the inside of the device was empty (as in being filled with nothing but air  . . .  literally). The report also discovered that the cards “used” by the device were no more than RFID tags used to deter shoplifting and not specially programmed cards designed to whiff out the essence of elephant or anything else for that matter.
This would be humorous were it not for the fact that the use of these devices may have resulted in death and injury. A recent wave of successful car-bomb attacks in Baghdad has led even some Iraqis to question the efficacy of the device even though Iraq has bought $85 million dollars worth of the non-functional plastic shells at $40,000 to $60,000 per pop.
Jim McCormack has been arrested for fraud and is out on bail.
the new control reads:
PL9006 The export of ‘electro-statically powered’ equipment for detecting “explosivesâ€, other than detection equipment specified in Schedule 2 or in 1A004.d. in Annex I to “the dual-use Regulationâ€, is prohibited to any destination in Afghanistan or Iraq.
Technical note
‘Electro-statically powered’ means using electro-statically generated charge.â€.
It is hard to see how the equipment described could be controlled by this entry. It appears that it is not “equipment for detecting explosives”. The Government cannot have it both ways: either it is “equipment for detecting explosives” and would now, but not at the time of the exports, require a licence for export to Iraq or Afghanistan, or it is not. Presumably, the apparent inability of the equipment to detect explosives form the basis of the fraud allegation.
If the equipment was capable of detecting explosives, where is the fraud?
Excellent point, David. The control probably should have read “electro-statically powered equipment claimed to be capable of detecting explosives.” However, even in the present wording ATSC is in an awkward position. Could it defend against export charges by arguing that the devices don’t work?
If subject to the EAR, I would imagine that intent to export an item under 1A004.d without a license would constitute a violation (acting with knowledge that a license is required) however once you determined that the goods were not controlled under 1A004.d, the export, or intent to export, would not be controlled. What did you know and when did you know it?
Absolutely astonishing. Reading through this post and the items to which you provided links, I kept thinking, “How on earth does a government spend $85 million on shiny widgets that are no more useful than dowsing rods?”
It turns out dowsing was exactly the “technology” that ATSC was promising. From the NYT article:
“The Times of London quoted Mr. McCormick in November as saying that the device’s technology was similar to that of dowsing or divining rods used to find water. ‘We have been dealing with doubters for 10 years,’ he said. ‘One of the problems we have is that the machine does look primitive. We are working on a new model that has flashing lights.'”
Because when lives depend on a mumbo-jumbo piece of junk, flashing lights make all the difference.
I think the intent here is to prevent future exports but, even then, I have difficulty with the wording and I think it can be argued that, becuase the product does not work and never had a chance of working it is not equipment for detecting explosives any more than are, for example, two bent coathangers.
Conversely, if the equipment is “equipment for detecting explosives, the argument that it is now controlled can be made. However, where then is the mens rea for fraud?
It’s not just the ADE 651; there’s a big row in Thailand at the moment over a very similar device, the GT200 (of which the ADE 651 appears to be a clone). See Wikipedia’s articles on the ADE 651 and GT200 for more info – http://en.wikipedia.org/wiki/ADE_651 and http://en.wikipedia.org/wiki/GT200 .
It is trivial to prove that the ADE651 is not ‘electro-statically powered’, although the manufacturers erroneously claim it to be. So how does the Control Order achieve its stated aim?
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