Sep
15
Do U Feel Like 1 of the Kool Kidz Yet?
Posted by Clif Burns at 8:54 pm on September 15, 2010
Category: Criminal Penalties
Face it, we export folks have always felt that we weren’t part of cool crowd. We work with agencies that absolutely no one else has ever heard of. Our shop talk is littered with more acronyms than your kid’s bowl of Alpha-Bits cereal. We have to advise people to comply with regulations that regularly prompt those people to say “Tell me you’re joking.”
So when an export case shows up on the über-Kool website The Smoking Gun, well, you can stand up tall, puff your chest up, and sneer at people who previously snickered at your pocket copy of the USML. We have arrived. Next thing you know, Gawker will be reporting on sightings of DDTC licensing officers at hot spots on U Street and Wonkette will put ExportLawBlog on its blogroll.
The case at issue involves a former Marine accused of selling export controlled defense items on eBay, specifically some light interference filters, night-vision parts that he claimed to have found in a dumpster at Camp Pendleton. The marine said that, although he knew that night-vision goggle themselves were export-controlled, he was unaware that these restriction also applied to night-vision parts such as light interference filters. Whether or not the Marine’s claim is true, it is undeniable that our current export system criminalizes activities that aren’t widely understood to be criminal or even illegal. Sure, everyone knows that selling dope is illegal but how many people would even imagine that selling a piece of glass on eBay to a guy in Britain might be against the law?
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Copyright © 2010 Clif Burns. All Rights Reserved.
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3 Comments:
I knew I had a hope of being cool when export compliance was mentioned in a fairly recent Dilbert. The North Elbonians took military tech. home to build a laser.
Dilbert and Smoking Gun we are now really cool.
Most people don’t know that it is illegal. That’s why DoJ, instead of tracking the language of the statute in indictments, always takes the occasion to effectively rewrite the statutes by wording the indictment as “willfully exporting a [widget] without a license”, a phrase that does not exist in the statute, focusing the jury on willfully exporting, rather than on the specific intent to violate the law, whereas the statutes are worded in terms of willfully violating the statutes or the regulations and licenses issued pursuant to the statutes.
Criminal lawyers, as well as those who practice criminal law, but who have no experience in export law routionely fall for DoJ’s trap, and are suckered into endless hours of pin dancing about the meaning of the single word “willfullY’ while ignoring, as DoJ hopes, the basic canon of construction that all the words of the statute must be construed together.
So here’s my question. The ITAR section 121.1 does NOT specify under Category XII(e) that the item is also demilitarization code “D” requiring end-of-service-life destruction rather than transfer or resale. So how are people supposed to know about that requirement, even if they are otherwise savvy about export controls in general? In fact the ITAR 121.1(e) does not even show an asterisk in front of that entry to specify that it is classified as SME, supposedly the only types of items requiring destruction upon disposal. (Note that DoD Demil Instructions do not require destruction for all SME items, others can simply be disabled, etc.)
