. . . is to gag your opponent. And that’s exactly how the prosecution is trying to win the public domain argument in the Chi Mak trial, which we’ve discussed here and here.

At least two of the three documents that Mak is charged with exporting in violation of the Arms Export Control Act were clearly public domain. They were co-authored by Mak and presented at seminars which were conducted by the American Society of Naval Engineers and which were open to the public. Accordingly, under section 120.11(a)(6) of the ITAR, these papers were public domain information and not export-restricted technical data.

The prosecution’s approach to this argument was to ask the trial court through a Motion in Limine to forbid Mak from introducing any evidence that these papers were presented at public conferences, which is rather like trying to suppress evidence that the victim is still alive at a murder trial.

The government’s basis for this outrageous claim is, well, outrageous. The government asserts that DDTC has certified that the two papers were technical data within the rule and then claims that this certification is immune from any judicial review.

The basis for this argument is § 2278(h) of the Arms Export Control Act, which states

The designation by [DDTC], in regulations issued under this section, of items as defense articles or defense services for purposes of this section shall not be subject to judicial review.

So, did DDTC issue regulations designating these documents as technical data? Of course not. So how could this provision apply at all?

The government tries to get around this problem by citing Karn v. United States Dep’t of State, 925 F. Supp 1 (D.D.C. 1996). That case did indeed hold that a DDTC determination that a particular diskette was a defense article was not subject to review. But the government doesn’t tell the whole story of why the Karn court held that this determination was unreviewable. The court made that determination because the determination was made by DDTC pursuant to the specific procedures for a commodity jurisdiction request set forth in section 120.4 of the ITAR:

It is far more reasonable to read [the Arms Export Control Act] to preclude judicial review for the designation of items as defense articles pursuant to the language of the munitions list and the procedures provided for interpreting the list, all set forth in the ITAR–in other words, if the defendants follow the procedures set forth in the ITAR and authorized by the AECA for designating an item as a defense article, such item is a part of the munitions list.

I’ve seen these certifications from DDTC in other criminal export cases but, dollars to doughnuts, the DDTC has not made a formal commodity jurisdiction determination under the procedures set forth in section 120.4 Instead, it is likely that it simply responded to an informal request from the prosecution with a letter or affidavit. Nothing, not one word, in Karn suggests that such an informal response from the DDTC is immune from judicial review.

Even if the informal determination is unreviewable, it is only unreviewable as to what the DDTC actually determined. Clearly the DDTC would have determined that the papers related to a defense article on the USML. If the papers also had possible non-military applications, the DDTC would have determined in addition that the papers primarily related to the defense article.

But did the DDTC determine that the papers were in the public domain? Of course not. How could it? How could the DDTC determine that the documents had never been released to the public? At most, the DDTC determination, even if you buy the government’s non-reviewability argument, forecloses the defendants from litigating whether the papers predominantly relate to defense articles.

Yesterday we commented on the argument by the prosecutors in the Mak trial that export of public domain technical data to an embargoed country, such as China, violates the Arms Export Control Act. Josh Gerstein, the intrepid New York Sun reporter covering the case, read our post and sent a copy of the government’s brief in which it makes that claim.

The prosecution’s argument couldn’t be simpler and couldn’t be more wrong. The brief filed by the prosecution cites the portion of section 127.1 of the ITAR which states that the “exemptions” provided in the ITAR don’t apply to exports to embargoed countries:

These regulations make plain that the exemption in ITAR, including the public domain exception, do not apply to exports to the PRC because the PRC is subject to an arms embargo.

This argument thoroughly confounds exemptions — which exempt exports of defense articles and defense services from licensing requirements — and regulations which define the scope of the terms “defense article,” “defense service,” and “technical data.”

The reference to “exemption” in section 127.1 is clearly a reference to the various portions of the ITAR which are explicitly referred to as “exemptions” — such as the “Exemptions of General Applicability” for exports of defense articles provided in section 123.16, “Exemptions for training and military service” provided in section 124.2, the “Exemptions of General Applicability” for exports of technical data provided in section 125.4, and the “Exemptions for Plant Visits” provided in section 125.5.

“Exemption” does not refer to the provisions of section 120.10(a)(5) which state that the “definition” of technical data does not include:

information concerning general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities or information in the public domain as defined in § 120.11. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.

The government’s claim that this is an “exemption” not only contradicts the plain meaning of the regulations but leads to results that could not possibly be intended by anyone. Under the government’s claim that section 120.10(a)(5) is an exemption, hundreds of universities with Chinese graduate students are in peril of criminal prosecution for providing to them “general scientific, mathematical or engineering principles commonly taught in schools, colleges and universities.”

The prosecution in the Mak case attempts to support its position by relying on the Ninth Circuit’s decision in U.S. v. Posey, 864 F.2d 1487 (9th Cir. 1989). This is odd, to say the least, because the trial court in that case dismissed charges under the Arms Export Control Act for export of technical data on the grounds that the technical data was in the public domain. The Ninth Circuit did hold that public domain data was restricted for export under a different statute — the Comprehensive Anti-Apartheid Act (“CAAA”), which is no longer in force — because that Act explicitly limited exceptions to those contained in the CAAA itself and the CAAA did not contain a public domain exception.

When the export community learns about the government’s argument in this case, I suspect there will be an uproar.

The trial of Chi Mak and other members of his family for export of ITAR-controlled technical data begins this week. An article on the upcoming trial by New York Sun reporter Josh Gerstein, who has been following this case with some care, has this interesting tidbit:

Mr. Kaye [Chi Mak’s defense attorney] said the government made little effort to safeguard the material. “As you can see in the pleadings … every document in this case was distributed at a public conference,” the attorney said.

Material in the public domain is usually exempt from export controls, but the government argued that an embargo imposed on China after the Tiananmen Square massacre in [1989] made it illegal to share even widely disseminated defense materials with Beijing.

Say what? Is the government claiming that it is a felony to provide to the Chinese public domain data that the Chinese could have obtained on their own?

According to Section 120.11(a)(6) of the ITAR, technical data doesn’t include material distributed at a public conference. And if the information wasn’t technical data, it’s export would not, as charged by the Second Superseding Indictment, violate the provisions Section 127.1 of the ITAR which forbid export of technical data. Furthermore, nothing in the original order imposing the arms embargo on China or the subsequent amendment to the ITAR to reflect the embargo changes this in any respect.

But Section 127.1 of the ITAR also forbids providing defense services to foreign person. Defense services are defined in Section 120.9(a)(1) as the

furnishing of assistance . . . to foreign persons in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of
defense articles

The government’s contention can only make sense if it is claiming that provision of public domain technical data to a foreign person is a provision of a defense service in violation of section 127.1. But if this is the government’s claim, then there is no reason for the public domain exception to the definition of technical data. Every provision of technical data, whether or not it is in the public domain, is by definition a defense service. And activity once thought to be permitted under the ITAR would be a felony.

We will certainly be following this trial with great interest.

(Hat tip to reader Creighton Chin at CPII who brought the Gerstein article to my attention.)

UPDATE: Josh Gerstein read this post and then kindly sent me a copy of the prosecutors’ brief on the public domain issue. Their argument is even worse than I imagined. I’ll post it, along with my comments, later today.

SECOND UPDATE: My comments on the prosecution’s brief on the public domain issue are here.