Archive for the ‘Arms Export’ Category


Mar

3

Global Recession Hits Criminal Arms Merchants Too


Posted by at 9:38 pm on March 3, 2010
Category: Arms ExportCriminal Penalties

Monzer al-Kassar
ABOVE: Monzer al-Kassar


An article that I just noticed in the February 8 issue of The New Yorker, tells the fascinating story of a D.E.A. sting operation conducted in Spain against Monzer al-Kassar, the notorious arms dealer alleged to have sold weapons both to the Achille Lauro terrorists and to the United States as part of the Iran-Contra affair. Kassar was arrested in Spain, extradited to the United States, and convicted in a Manhattan court to thirty years in prison on charges that he conspired to sell arms to FARC, a paramilitary terrorist group in Colombia.

The whole story is worth reading, but several details in the article are of particular note. First, the article emphasizes that arms dealers can be elusive because they structure their deals to comply with the laws of the countries in which they reside, negotiating sales from one country to another without ever leaving their home base where the brokering transactions are perfectly legal.

Second, and I know this will come as a shock, corrupt countries readily sell end-user certificates to arms dealers and certain arms manufacturers don’t even bother to read the end-user certificates that they demand. In one instance, Kassar bought weapons using an end-user certificate from the People’s Democratic Republic of Yemen even though the DPRY had ceased to exist two years earlier when North and South Yemen reunited. One of the D.E.A. undercover agents almost blew his cover when he told Kassar that the Nicaraguan end-user certificate to be used in the FARC transaction had cost several million dollars.

Kassar scoffed, saying that with that kind of money he “could have bought a whole country.”

Third, Kassar was caught because he abandoned his ordinary caution and allowed himself to be taped agreeing to sell arms that the undercover agents told Kassar would be used by FARC to kill Americans. As the reporter for the article stated:

Everyone I spoke to who has worked with Kassar over the years expressed surprise that someone so cautious could be caught on tape agreeing to sell weapons to the FARC. One possible explanation is that, compared with the last decades of the twentieth century—when conflicts in Africa, Europe, and the Middle East generated steady revenue—these are difficult times for weapons traffickers. When Samir first approached Tareq al-Ghazi in Lebanon, Ghazi told him that Kassar had been struggling to maintain his profit margins.

A diminished demand for black-market weapons may be driving other arms traffickers to assume risks that they would never have taken in the past. A year after the capture of Kassar, the S.O.D. team arrested Viktor Bout, the Tajik arms dealer, in Bangkok—using the same sting. (Bout asserts his innocence, and, to date, the Thai government has refused to extradite him.)

Kassar maintains his innocence and continues to insist that he was playing along with the D.E.A undercover agents in order to turn them in to Spanish authorities.

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Feb

3

At Least Self-Debarment Beats Ritual Seppuku


Posted by at 4:55 pm on February 3, 2010
Category: Arms ExportDDTC

Interturbine HeadquartersEarlier this afternoon, the State Department issued a press release announcing a settlement it had reached with Interturbine Aviation Logistics GmbH, Germany, and its Texas branch office, Interturbine Aviation Logistics GmbH, LLC, for alleged violatons of the Arms Export Control Act and the International Traffic in Arms Regulations (“ITAR”). Under the agreement Interturbine agreed to a $1 million dollar fine, $900,000 of which would be suspended provided that these amounts were applied to Interturbine’s ITAR-related compliance programs and measures.

One part of the press release deserves particular attention:

$400,000 [of the suspended $900,000] will be suspended on the condition that Interturbine maintains its self-initiated exclusion from all ITAR regulated activities.

I suspect that I am not alone here in wondering how voluntary or “self-initiated” Interturbine’s self-debarment was. Although I’m certain that the State Department’s Directorate of Defense Trade Controls (“DDTC”) didn’t resort to rubber truncheons, heavy volumes of the phone book, bright lights and sleep deprivation, it wouldn’t surprise me if this self-debarment was strongly urged by DDTC officials while asking Interturbine officials how they thought they would look in orange. This is, after all, the first time I’ve seen a company adopt a lengthy self-debarment as the result of export violations.

The best part of the press release, however, is this:

The Department has determined that an administrative debarment of Interturbine is not appropriate at this time.

That seems to me not far removed from saying that, in light of the defendant’s suicide, the prosecution has decided not to seek the death penalty.

UPDATE: A source for Interturbine contacted me and said that the State Department’s reference to “self-initiated exclusion from ITAR activities” isn’t entirely accurate. The company says that none of its products are ITAR-controlled and that the company was simply continuing its existing policy of not dealing in ITAR-controlled products. The re-sale of the Dow Corning product was atypical and not a result of any intention by the company to deal in ITAR-controlled products.

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Jan

25

BIS Is from Mars and DDTC Is from Venus


Posted by at 8:40 pm on January 25, 2010
Category: Arms ExportBISDDTCPart 129

Locked HornsThere has never been a seriously-advocated rational reason for the U.S., unlike most other countries, to have one export agency regulating exports of weapons and a separate export agency regulating exports of dual use items. A new regulation adopted by the Bureau of Industry and Security (“BIS”) last May, and which I hadn’t noticed at the time but which was pointed out today by an astute reader, is a perfect example of the confusion sown by this split personality approach to export regulation.

The regulation created a new, and frankly obtuse, ECCN designated as 0A919 which, to the extent any sense can be made of it, covers military items produced outside the United States which incorporate certain thermal imaging devices and which are “not subject to the International Traffic in Arms Regulations.” Don’t go rushing now to your copy of the ITAR to find a definition of items “subject to the ITAR,” because you won’t find it. The Export Administration Regulations (“EAR”) administered by BIS talks about “items subject to the EAR” but the ITAR at times focuses instead on what people are subject to its jurisdiction, particularly in respect to Part 129’s brokering regulations which intersect uncomfortably with the new ECCN.

Let’s now look at a specific example and see what happens. Consider a military vehicle which incorporates a thermal imaging camera controlled by BIS and which was manufactured outside the United States. If a U.S. person sought to export that vehicle from its country of manufacture to another country, that person (depending on the value of the vehicle and its export destinations) could be required to get permission from the Directorate of Defense Controls (“DDTC”) which regulates brokering in Part 129 of the ITAR. And given the new ECCN, that person might also require an export license from BIS (depending, of course, on the destination of the exported vehicle).

BIS tries unsuccessfully to avoid this overlapping jurisdiction with an awkwardly worded note to the new ECCN:

Brokering activities (as defined in 22 CFR 129.9) of military commodities that are subject to the ITAR are under the licensing jurisdiction of the Department of State.

That note doesn’t work because under part 129 all defense articles, irrespective of U.S. content, “are subject to the ITAR.” The brokering regulations in part 129 cover U.S. persons and foreign persons in the United States or otherwise subject to U.S. jurisdiction if they engage in brokering a defense article even if not one single component of that article was produced in the United States.

The note, and indeed the entire ECCN, only makes sense if whether something was subject to the ITAR depended on U.S. content in the same way that “subject to the EAR” under the EAR’s definition depends on the amount of U.S. content. And that’s apparently what somebody at BIS was thinking. If we had one export agency handling both dual use items and military items, this kind of basic confusion would be much less likely to occur.

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Jan

21

DDTC Updates Firearms and Ammunition Export Guideline


Posted by at 9:41 pm on January 21, 2010
Category: Arms ExportDDTC

Guns and AmmoOn Tuesday, the website of the Directorate of Defense Trade Controls announced that it had updated its “Guidelines for the Permanent Export, Temporary Export and Temporary Import of Firearms and Ammunitions.” Although DDTC did not identify or explain the changes in the guidelines, the changes appear to be restricted to one paragraph marked in red. That paragraph, which can be found on page 7, reads:

Where the exporter uses an in–transit point (or points) in a country other than that of the ultimate destination, an authorization issued by the foreign government of the transit country authorizing the transit of the specified items must also accompany each application to export. Where items are temporarily imported into the U.S. for the purposes of transit or transshipment to other OAS countries, an Import Authorization, comprised of either a permit or a certificate issued by the foreign government authorizing the import of specified items, must accompany each application to import.

This paragraph requires that temporary import of firearms through the United States for another member of the Organization of the American States (“OAS”) be accompanied by an import authorization from the destination state. This is clearly an effort to conform to the requirement of Article IX(2) of the OAS Firearms Convention.

The other requirement, that an export license application for firearms that transit another country prior to the ultimate destination must be accompanied by a transit permit from the transiting country, is not restricted to OAS members, although that requirement conforms to Article IX(3) of the OAS convention. It also conforms to the requirement of Article 10(2)(b) of the U.N. Firearms Protocol which hasn’t been signed or ratified by the United States, largely based on fears, unfounded by the text of the Protocol, that the Protocol is an effort by the U.N. to regulate purely domestic sales of firearms in the United States.

Even so, it’s a sensible requirement because failure to obtain a transit license for countries that have signed the U.N. Protocol or which otherwise require transit permits can result in seizures of the firearms as they transit those countries. For other countries that have not signed the U.N. Protocol and which don’t require transit licenses, the provision is a bit more problematic in that it would appear to require obtaining a transit license from countries that don’t issue them. In the case of exports to countries that don’t require import authorizations, the guidelines permit the applicant to submit a statement from the end user or the country of import that no import authorization is required. It’s not clear why a similar procedure doesn’t appear to be available in the case of countries without transit license requirements.

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Jan

6

DDTC Imposes Pseudo-Embargo on Niger


Posted by at 8:59 pm on January 6, 2010
Category: Arms ExportDDTCNiger

Mamadou Tandja
ABOVE: Mamadou Tandja

The Directorate of Defense Trade Controls (“DDTC”) announced today that applications for exports of defense items and services to Niger might be delayed, possibly for a really, really long time:

In response to recent events in the Republic of Niger (Niger), DDTC wishes to inform exporters that although there is no current U.S. or UN arms embargo on Niger, the final decision of license applications for the export of U.S. Munitions List (USML) items to Niger received from this date or currently in the review process may be delayed. License applications will continue to be reviewed on a case-by-case basis, but approval should not be assumed. We encourage exporters to take the current situation into account and if applying for a new license to export or re-export USML items to Niger, that the license application provide detailed information on the end-use and end-user of the USML items.

The recent events referred to in the DDTC announcement were actions taken last August by Niger’s President Mamadou Tandja (or Tandja Mamadou, there seems to be some dispute as to the correct order) to amend his country’s constitution to give himself the right to run for a third term. The action was taken after a disputed referendum that was boycotted by the opposition and that Tandja pushed through by dissolving the parliament and the constitutional court.

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Copyright © 2010 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)