Feb
18
The Sledgehammer Exception
Posted by Clif Burns at 10:18 pm on February 18, 2015
Category: Arms Export • DDTC • ITAR • USML
![Sanaá, Yemen by Rod Waddington [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/rod_waddington/16293960729[cropped]](https://www.exportlawblog.com/images/yemen.jpg "Sanaá, Yemen by Rod Waddington [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Flickr https://www.flickr.com/photos/rod_waddington/16293960729[cropped]")
When the Marines evacuated the U.S. Embassy in Sanaá, Yemen, there were reports that they left some of their weapons behind, in large measure because they were leaving on a commercial flight. At first the military said that crew-served weapons and machine guns were destroyed before departure, but that M-9 pistols and M-4 carbines were handed over to Yemenis before the boarded the plane.
Realizing that this was perhaps a giant SNAFU, the military later revised its story to take care of the pistols and the carbines
“Upon arrival at the airfield, all personal weapons were rendered inoperable in accordance with advance planning,” the statement said. “Specifically, each bolt was removed from its weapons body and rendered inoperable by smashing with sledgehammers. The weapons’ bodies, minus the bolts, were then separately smashed with sledgehammers.”
There you have it: nothing to see here because the military used the smashed-to-bits exception which authorizes a U.S. person to retransfer a defense article to a foreign end user as long as someone takes a sledgehammer to it first. You may be wondering if there is such an exception, and the answer is maybe yes and maybe no.
A few initial observations are in order. First, the Arms Export Control Act applies to the military and active duty troops just as it does to everyone else. Second, the ITAR prohibits unlicensed transfer of defense articles from one foreign end use to another foreign end use without a license. So, unless there is a sledgehammer exception, we have a problem here.
The only possible source for the sledgehammer exception is section 126.4, which states:
The approval of the Directorate of Defense Trade Controls must be obtained before defense articles previously exported pursuant to this exemption are permanently transferred (e.g., property disposal of surplus defense articles overseas) unless the transfer is pursuant to a grant, sale, lease, loan or cooperative project under the Arms Export Control Act or a sale, lease or loan under the Foreign Assistance Act of 1961, as amended, or the defense articles have been rendered useless for military purposes beyond the possibility of restoration.
At first glance, this appears to support the sledgehammer exception. The military says it rendered the bolts “inoperable.” The rest of the weapons, however, were just smashed. So, I think we don’t have to worry about the bolts, but did smashing the rest of the weapons with a sledgehammer render every other part and component of those weapons “useless for military purposes beyond the possibility of restoration”?  Those parts and components are defense articles in Category I(h) and each and every one of them needed to be sledgehammered beyond the possibility of restoration. That’s a lot of sledgehammering, and it seems to me unlikely that actually happened before the Marines hopped onto their flights out of Yemen.
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8 Comments:
We often leave operable weapons behind on the battlefield you might be surprised to know. Like when we get shot or blown up by IEDs. Or drop a magazine on a reload.
Btw. If you take a sledgehammer to for example the barrel and receiver of most firearms (certainly an M4), they will be inoperable and nonrepairable. The pistols even more so.
Is there no national security exception for such unlicensed exports (like there is for bribery under the FCPA, for example?).
There is no “national security” exception for unlicensed exports. (By the way, there isn’t one for the FCPA either.) Obviously the ITAR, written by a bunch of people at the State Department, does not have a keen grasp of military realities in situations such as you describe. Certainly, weapons left behind by injured (or hastily evacuated) soldiers ought to be excepted; but they aren’t.
Also, I grant that the weapon itself may be irreparable after being sledgehammered. My point is that parts and components might still be useable and they are still subject to the ITAR. You would pretty much have to grind a weapon up into fine powder or smash it into into a million pieces for every part and component of the weapon to be rendered irreversibly inoperable.
Thanks, I’d suggest consulting with an armorer or firearms restoration expert on the realities of damage to a weapon that can be repaired, but that is I recognize much further into reality than export controls tend to go.
But on the FCPA, do take a look at section 78m – (A)…otherwise known as the CIA exception…
“With respect to matters concerning the national security of the United States, no duty or liability under paragraph (2) of this subsection shall be imposed upon any person acting in cooperation with the head of any Federal department or agency responsible for such matters if such act in cooperation with such head of a department or agency was done upon the specific, written directive of the head of such department or agency pursuant to Presidential authority to issue such directives. Each directive issued under this paragraph shall set forth the specific facts and circumstances with respect to which the provisions of this paragraph are to be invoked. Each such directive shall, unless renewed in writing, expire one year after the date of issuance”
I realize the weapon itself may not be restorable; however, if any single part (say a trigger) can be removed and used, that part itself is a defense article subject to export controls whether the rifle or pistol itself can be repaired.
The exception you cite is one that is restricted to books and records and allows companies, with approval of a specific agency like the CIA, to leave certain expenses off their books. It doesn’t permit a bribe of a foreign official in the name of “national security.”
So, let me get this straight: You are questioning Marines, who had been ordered to ‘bug out’ for doing their best not to leave operable weapons behind? Here’s a little something you ought to memorize:
“You want answers?â€
“I want the truth!â€
“You want answers?!â€
“I’m entitled to the TRUTH!!!â€
“You can’t handle the truth! Son, we live in a world that has walls and those walls need to be guarded by men with guns. Who’s gonna do it? You? You, [Cliff Burns]?
I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines; you have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives and my existence, while grotesque and incomprehensible to you, saves lives. You don’t want the truth because deep down in places you don’t talk about at parties you want me on that wall, you need me on that wall.
We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punch line. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide and then questions the manner in which I provide it. I would rather you just said “thank you,†and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a d@mn what you think you are entitled to!†~ Col. Nathan R. Jessup, “A Few Good Menâ€
Get it?
If you want to “get this straight,” I am not questioning the Marines here. I think the regulations are wrong in this regard. But they are what they are and should be changed to deal with situations like this or where weapons get left on the battlefield for other valid reasons.
Have to agree with Cliff here. When your unarmed civilian contractor employees are stopped at gun point by the Iraqi Army and your employees’ ITAR-controlled ballistic vests and helmets are confiscated, your company has violated the ITAR by making an unauthorized transfer.
I don’t think the point of this article or other articles regarding the US military was to judge or condemn the actions of service members. Clif uses this blog to show the problems with the system. In a case like this (ie. every case): the US government violates its own murky rules, does some hand-waving, and then issues heavy fines to others doing the same thing.
