Testimony: Reauthorizing the Export Administration Act

Testimony of Gary Milhollin

Professor Emeritus, University of Wisconsin Law School and
Director, Wisconsin Project on Nuclear Arms Control

Before the Committee on Armed Services
United States House of Representatives

February 28, 2002

I am pleased to appear before this distinguished Committee to testify on the re-authorization of the Export Administration Act.

I’m sure that no one is more aware than the members of this Committee that we now face a new situation in the world after September 11.  We have learned, in the most painful way, that our oceans and borders no longer protect us from violent attack, and that we must do more to protect ourselves.

It is with this new situation in mind that I urge the Committee to examine the bill now pending before the House, HR 2581.  The most important thing about the bill is that it was conceived, drafted, debated and reported in a bygone period of history – the days before September 11.  In light of the new threats before us, the assumptions behind the bill have become outdated.  What were those assumptions?  They were that the world was such a peaceful place that the United States could safely let its companies make a little more money on exports even if it meant lowering the barriers to the spread of weapons of mass destruction.  We should now be able to see that this assumption was wrong.  Our priorities should be exactly the opposite of those reflected by this bill.

Unlike our present law, this bill does not try to strike a balance between national security and freedom of trade.  Instead, it is a one-sided list of provisions advocated by commercial interests that have long opposed any form of export control.  If the bill passes, it would essentially dismantle the system of export control that the United States has built up over the past half-century.  Whatever one may have thought of this bill before September 11, it is now clear that we cannot afford to take such a dangerous step.  Instead of weakening export controls, we should be strengthening them.

Combating terrorism and arms proliferation

To show how outdated this bill has become, I would like to draw the Committee’s attention to what the U.S. Customs Service is doing.  Customs has set up a new program called “Shield America,” specifically to respond to the attacks of September 11.  Customs has drawn up a list of approximately one hundred dangerous items, and is now sending its agents out to visit American exporters to warn them about selling them.  The items are the ones that would make it easier for terrorists and terrorist-supporting nations to build weapons of mass destruction.  The Washington Post ran a news story about this important effort on December 11, 2001.  I would like to submit the article for the record.

Why should the Committee take note of this effort?  Because the bill now before the House would decontrol the very items that Customs is warning our exporters to keep away from terrorists and terrorist-supporting states.  These items include:

  • high-precision electronic triggers, used to detonate nuclear weapons,
  • specialized steel alloys, used to make nuclear weapon fuel and missile components,
  • glass and carbon fibers, used to make parts for long-range missiles,
  • corrosion-resistant valves, used to make nuclear weapon material,
  • specialized reactor vessels, used to make chemical weapon agents.

All of these technologies have been identified by experts in our government as essential to control in order to combat terrorism and the spread of mass destruction weapons.

I have attached to my testimony an appendix that describes a number of the items on the Customs list and the reasons why each of them would be decontrolled under the pending bill.  The items all fit the bill’s definition of “mass market status.”   The bill says essentially that if an item is available in quantity in the United States, it should be free for export.  The bill gives the  Secretary of Commerce the power to decontrol such items acting on his own.  The bill says that the Secretary of Commerce shall determine that an item has mass market status if it meets the criteria in Section 211, which these items do.  The items would then be decontrolled automatically.

The only way to retain control is for the President himself to make a special finding within 30 days, in which he would set aside the Commerce Department’s decision.  This is an authority that he is not allowed to delegate.  In effect, the bill sets up a powerful new machine at the Commerce Department for decontrolling exports.  Once that machine gets moving, it is going to chop big holes in the existing control list unless the President can find some hours in his schedule in which to undo the Commerce Department’s work.  Do we really want the President of the United States to put aside his concern about Osama bin Laden, or about the economy, and spend his time thinking about triggered spark gaps and corrosion resistant valves?

There is obviously something wrong with this picture.  What is wrong is that the world has changed, and this bill does not reflect that fact.  It is manifestly absurd to decontrol the same technologies that our Customs Service is now warning our exporters not to sell to terrorists.

Many of the items on the Customs list are controlled to combat terrorism.  In light of the attacks on September 11, Congress should not authorize the Commerce Department to decontrol any item that could help terrorists or terrorist-supporting nations.

It would be best simply to delete the mass market provision because it is outdated.  If it remains in the bill, however, it should be amended so as not to apply to any item now on the control list where a reason for control is anti-terrorism.

The mass market provision should also be amended to require the concurrence of the CIA and the Secretaries of Defense and State before any item could be deleted from the control list.  The Secretary of Commerce should not be allowed to delete items unilaterally.  The House Committee on International Relations, in its report, found that “State and Defense must have equal status with the Secretary of Commerce in determining which items are to be controlled on the National Security Control List.”  Under the bill’s present language, these departments do not have that status.  An amendment is needed to give it to them.

The “foreign availability” language in Section 211 suffers from the same problems as the mass market language.  Many of the sensitive items on the Customs Service list would also have “foreign availability status” because they are manufactured and sold by foreign companies.  In fact, the definition of foreign availability in the bill is so sweeping that it covers virtually anything that a controlled country can manage to buy from any supplier in the world.  If Iran or Pakistan or Syria can buy a nuclear weapon component or a missile component or a piece of sensitive equipment from China, Russia or North Korea, then this bill says that our industry must be free to sell the same thing.

When one reads Section 211 carefully, it would seem that even guidance sets or rocket engines would have “foreign availability status” because they are available from North Korea.  Under the bill’s criteria, North Korean rocket components:

  • Are “available to controlled countries from sources outside the United States;”
  • “Can be acquired at a price that is not excessive;”
  • Are “available in sufficient quantity so that the requirement of a license or other authorization with respect to the export of such item is or would be ineffective.”

Today, Egypt, Iran, Syria and Pakistan are importing North Korean rocket components in “sufficient quantities” without any trouble.  Requiring a U.S. license for their sale would obviously be “ineffective.”  Under the literal terms of the bill, they appear to have “foreign availability status.”  Any bill that decontrols rocket components is obviously flawed.

This foreign availability language too should be deleted.  However, if it is left in the bill, it should be amended to forbid the decontrol of any item now controlled for anti-terrorism purposes.  This language should also be amended to require the concurrence of the CIA and the Secretaries of Defense and State before any item is deleted.  As stated above, the national security agencies deserve equal status in determining what is controlled or decontrolled because of foreign availability.

There is also the fact that the great majority of the items now on the control list are controlled by our allies under multilateral regimes.  If the Secretary of Commerce begins to decontrol these items unilaterally, it will destroy U.S. credibility on export controls.  It may destroy the regimes as well, given the fact that the United States has always been the leader in setting up the regimes and preserving them.

Thus, the mass market and foreign availability language, if left in the bill, should also be amended to forbid the decontrol of any item that is now controlled by a multilateral regime, unless the regime members first agree that the item should be dropped.

The role of the intelligence agencies

One of the lessons of September 11 is that we need to make better use of intelligence information.  A good place to start is with export controls.  Not only is our intelligence community the first line of defense against terrorists, it is also the place to look for evidence showing that a particular end-user or a particular country is linked to weapons of mass destruction, or that a particular export presents a high risk of diversion.  For these reasons, it is time for Congress to make the Central Intelligence Agency a full participant in the export control process.

Instead of simply providing information to other agencies, which those agencies may or may not take into account, the CIA should take an official position – meaning that it should cast a vote – on each export license application that is reviewed.  If the CIA believes that an export should not occur, the dispute resolution procedures should take the CIA’s position into account. The quality of export control could only be improved by having the views of our intelligence community incorporated formally into the decision-making process.

To increase the CIA’s participation, Sections 401 and 402 of the bill should be amended to require explicitly that all license applications be referred to the CIA, that CIA participate on the same basis as the Departments of Defense and State in classification decisions, and that the CIA have a vote in the dispute resolution process.  In like fashion, Section 211 should be amended to require the concurrence of the CIA before any item is decontrolled under the mass market or foreign availability provisions.

The role of the national security agencies

This bill essentially turns the Secretary of Commerce into the czar of export controls.  In addition to deciding what will be controlled, the Commerce Department will chair the most important export control committee and will use its administrative preeminence to determine the outcome of licensing decisions.

This is exactly the opposite of the way things should be.  The national security agencies house the experts who understand how dual-use equipment operates and what the risks are if such equipment is diverted for military purposes.  They also know which countries and companies in the world are most likely to divert it.  In order to bring the maximum amount of government expertise to bear upon export control decisions, the qualified personnel at the national security agencies must be able to decide what is controlled and who is allowed to buy it.

Let us not forget that the Commerce Department is burdened by a conflict of interests – it must promote exports as well as regulate them.  The promotion function has always dominated, and has always caused the Commerce Department to champion the exporters’ point of view.  It is vitally important to insure that the national security agencies continue to have a strong voice in export control decisions, and that national security will not take a back seat to trade interests.

Under Section 202 of this bill, the Secretary of Defense would lose his existing power to put an item on the National Security Control List.  Only the Secretary of Commerce would have that power.  The Secretary of Defense has the right to concur with the Secretary of Commerce’s action, but that could only allow the Pentagon to keep an item off the list that the Commerce Department wants to put on it.  Since Commerce has always wanted to control as few items as possible, this is a meaningless concession.  This section should be amended to give the Secretary of Defense the same authority to designate items for inclusion on the National Security Control List that exists under present law.

The amendment should also preserve the authority of the Secretary of Defense, which exists under present law, to develop and maintain a list of militarily critical technologies.  HR 2581 does not provide for such a list.  It would be a great mistake to get rid of this list, which is one of main foundations upon which our export controls now rest.  It is hard to see why the Secretary of Defense should not have the power to decide which exports should be controlled to protect our national security.

Congress should also ensure that no license application is approved unless all the national security agencies concur.  It makes no sense to allow cases to be escalated to the political level where the judgments of national security experts can be reversed by political considerations.  If a national security agency takes a stand in opposition to an export application at the expert level, the case should end there.

Under Section 402 of the bill, the Commerce Department is set up as the final arbiter of interagency disputes.  If a national security agency objects to an export license application, the case is referred to an interagency committee set up by the Commerce Department.  The chair of the committee, which the Commerce Department appoints, can then simply decide to grant the license, regardless of what any national security agencies thinks.  Even if a majority, or indeed  all of the national security agencies object to the export, the chair of the committee can still approve it under the language of this bill.  The Commerce Department can simply override objections by any other agency and approve the export on its own.

Unless Congress is willing to see the national security agencies excluded from export control, this section must be amended.  First, a national security agency, such as the Department of Defense, should be put in charge of setting up and chairing the committee.  There is no reason to give this function to the Commerce Department, which has the least expertise in the subject matter.  Second, the section should specifically say that each reviewing agency shall have a seat on the committee and a vote on license applications.  Third, no export should be approved except by unanimous vote of the reviewing departments and agencies.  If a national security agency cannot be persuaded to change its mind during the process of committee debate, and remains convinced that the export is too dangerous to be approved, the export should be denied.

In addition to amending Section 402, Congress should amend Section 401, which gives the Secretary of Commerce sole authority to set up the procedures for interagency review of license applications.  Because these procedures affect all the participating agencies equally, all the agencies should have a voice in setting them up.  The CIA and the Secretaries of Defense and State should all be given the explicit right to concur in the procedures.

There are also two other provisions that need to be amended in order to give the national security agencies a proper role in export control.  The first is Section 201(c).  It authorizes the Secretary of Commerce to establish a database to help exporters identify end-users of concern.  The Commerce Department, however, has been notoriously reluctant to identify end-users in the past.  The State Department, by contrast, did an admirable job of identifying Indian and Pakistani end-users of concern after the nuclear weapon tests in 1998.  In doing so, State had to overcome fierce opposition from Commerce, which opposed the whole idea.  This section should therefore be amended to put the creation of the database in hands of the State Department, which is much more likely to carry out Congress’ intent.

The other provision is Section 214, which creates a new Office of Technology Evaluation.  It would gather information about the defense industrial base, technological developments, and national security.  The information would be used to make decisions relating to mass market and foreign availability.  The bill now places this office in the Department of Commerce, which has no background in these matters.  Instead, this section should be amended to place the new office in the Department of Defense, where our government’s expertise resides.

Keeping faith with the rest of the world

After September 11, the United States is more dependent than ever on foreign countries.  We must rely on them to help keep dangerous technologies away from terrorists and the nations that support them.  But how can we ask other countries to be more careful of what they sell if, at the same time, we are weakening our own export controls?

President Bush just returned from a trip to China, where he urged China to be more careful of its missile exports.  The United States is also asking Russia to stop exporting missile and nuclear technology to Iran, and I myself have visited ten countries in the former East Bloc over the past two years to help them strengthen their export control systems.

In light of all this, how can the United States now tell the rest of the world that export controls aren’t so important after all – that, in fact, they should be relaxed?  We should be sending the opposite message.  If we really want to protect our security, we would toss this bill in the wastebasket and start over.  We would draft a new set of controls to protect us against the new threats we face.  Until we do that, other countries won’t take us seriously, and dangerous technology will continue to flow to countries and groups that want to destroy us.


Sensitive items now controlled for export that have mass market status, and therefore would be decontrolled under Section 211 of H.R. 2581

Nuclear weapon triggers

For at least twenty years, the United States has controlled for export the high-precision electronic switches needed to detonate nuclear weapons.  These are key components in a nuclear weapon’s firing circuit and are popularly known as nuclear weapon “triggers.”  In 1998, Iraq tried to provide itself with a supply of these switches under the guise of medical equipment.  Iraq is allowed to import medical equipment despite the U.N. embargo, so Iraq bought a half dozen machines – called “lithotripters” – to rid its citizens of kidney stones.  The lithotripter pulverizes kidney stones inside the body – without surgery.  But each machine must be triggered by the same high-precision switch that triggers a nuclear weapon.  Iraq tried to buy 120 extra switches as “spare parts.”

Iraq ordered the machines and switches from Siemens, in Germany, which sold the machines but passed the “spare parts” order to Thomson CSF in France.  Siemens reported that Iraq got one switch with each machine and two more as spares, but to get any additional switches, Iraq would have to turn in a used switch for each new one and allow the United Nations to inspect the use of the machines.  The switches were controlled for export because they are on the control list of the Nuclear Suppliers Group, an international regime to which France, Germany and the United States belong.

These switches, however, would have “mass market status” under H.R. 2581, and would be decontrolled for export by the United States.  The switches meet all the criteria listed in Section 211 of the bill, and the bill says that the Secretary of Commerce shall remove them from the control list if they meet the criteria.  They meet the criteria as follows:

  • They are “available for sale in a large volume to multiple purchasers,” because they are used in radar, lasers and rockets as well as lithotripter machines and are advertised on the Internet by manufacturers in a number of different countries;
  • They are “widely distributed through normal commercial channels,” because they are sold by the thousands each year, including the hundreds sent to hospitals to keep lithotripter machines running;
  • They are “conducive to shipment and delivery by generally accepted commercial means of transport,” because they are small and easy to handle;
  • They “may be used for their normal intended purpose without substantial and specialized service provided by the manufacturer,” because they need only to be connected into an electrical circuit by attaching the appropriate wires.

Any bill that decontrols nuclear weapon triggers must be seen as seriously flawed.

Glass and carbon fibers

Glass and carbon fibers are used widely in ballistic and cruise missiles.  They go into solid rocket motor cases, interstages, wings, inlets, nozzles, heat shields, nosetips, structural members, and frames.  Composites reinforced by carbon or glass fibers also form the high-speed rotors of gas centrifuges used to enrich uranium for nuclear weapons.

In addition to these military applications, however, the fibers are used in skis, tennis racquets, boats and golf clubs, and are produced in a number of countries.  This availability would give the fibers “mass market status” under the bill, despite the fact that they have been controlled for export since January 1981.

  • They are “available for sale in a large volume to multiple purchasers,” because they are advertised on the Internet and can be ordered in large quantities by anyone;
  • They are “widely distributed through normal commercial channels,” because they are shipped in large quantities to manufacturers of sporting goods;
  • They are “conducive to shipment and delivery by generally accepted commercial means of transport,” because they do not require special handling except for refrigeration in some cases;
  • They “may be used for their normal intended purpose without substantial and specialized service provided by the manufacturer,” because they can be incorporated in manufacturing processes in the form received.

In 1988, a California rocket scientist was arrested in Baltimore as he tried to illegally load 420 pounds of carbon fibers on a military transport plane bound for Cairo.  The material was intended for the ballistic missile that Egypt was developing with Argentina and Iraq.  The scientist was sentenced in June 1989 to 46 months in prison.  It would be a big surprise to the world if the United States now decontrolled this material.

Maraging steel

Maraging steel is a high-strength steel used to make solid rocket motor cases, propellant tanks, and interstages for missiles.  Like carbon fiber, it is used to make centrifuge rotors for  enriching uranium for nuclear weapons.  In 1986, a Pakistani-born Canadian businessman tried to smuggle 25 tons of this steel out of the United States to Pakistan’s nuclear weapon program.  He was sentenced to prison as a result.  Maraging steel has been controlled for export since January 1981.

This steel is produced by companies in France, Japan, Russia, Sweden, the United Kingdom and the United States and it meets all the criteria for “mass market status.”  Several steel companies list maraging steel on the Internet and can produce maraging steel in multi-ton quantities.  Over the telephone, two American companies and one British company explained to my staff how to order 25 ton quantities with delivery in less than a month.  Maraging steel is bundled and shipped much like stainless steel, which it closely resembles.

Corrosion resistant valves

These special valves are essential components in plants that enrich uranium to nuclear weapon grade.  Both Iraq and Iran are hoping to build such plants, and will need these valves in great numbers.  The valves resist the corrosive gas used in the enrichment process.

These same valves are also used in the chemical, petrochemical, oil and gas, fossil power, pulp and paper, and cryogenic industries.  Their size can range from very large gate valves down to tiny globe valves used in instrument and control lines.  They are manufactured by companies in Australia, Japan, Russia, the United Kingdom and the United States.  Smaller corrosion resistant valves have been controlled for export since October 1994, and larger valves have been controlled since October 1981.

These valves fit all of the criteria for “mass market status.”  They are advertised on the Internet and are widely available to American buyers.  A quick survey this week by my organization revealed that dozens of companies make them and sell them in the hundreds per year.  They would therefore be decontrolled under Section 211, to the great delight of Iraq and Iran.

Other sensitive items that would be decontrolled

The items above are only four of the sensitive technologies that meet the “mass market” definition of the bill.  There also are many others, some of which are listed below.  All of these items are now controlled for anti-terrorism as well as non-proliferation purposes.


Gyroscopes are sensitive pieces of electromechanical or electro‑optical equipment that measure rotation about one or more sensitive axis.  Gyros are used in a missile’s guidance set or integrated flight instrumentation system to sense changes in accelerometer orientation.  Designs may use two, three, or four gyros. They usually are mounted perpendicular to each other in order to provide angular measurement information about all three axes.  They can be mounted in a floating ball, or affixed to a block which is in turn affixed to the missile airframe in a strapdown configuration.  Gyros are also used in integrated flight instrumentation systems, gyrostabilizers, automatic pilots, and in navigational equipment.  Military applications include artillery, tanks, ships, and aircraft.  Gyroscopes are produced by companies in Austria, Canada, China, France, Germany, Israel, Italy, Japan, North Korea, Russia, South Africa, Sweden, United Kingdom, and the United States.

Hot isostatic presses

Isostatic presses are used to infuse carbon into a porous carbon preform of a rocket nozzle or reentry vehicle nose tip under great pressure.  This process, referred to as densification, fills up and virtually eliminates voids in the preform and thereby increases the density and strength of the treated object.  Hot isostatic presses are produced by companies in France, Germany, Russia, and the United States.

Vacuum induction furnaces

Vacuum or controlled environment induction furnaces are used to heat or melt metal.  The furnaces create a vacuum because the metals inside would oxidize if they were exposed to the air.  The furnaces are typically closed cylindrical vessels with a number of ports and feedthroughs to provide access for vacuum piping, inert gas piping, electrical feeds, coolant piping, and instrumentation lines.  Vacuum furnaces can melt uranium and plutonium which can then be cast to make key parts of nuclear explosive devices.  These furnaces also may be used to heat-treat maraging steel for use in the rotor assemblies of gas centrifuges for uranium enrichment.  Vacuum furnaces are made by companies in Canada, Germany, Sweden, and the United States.


No other instrument has been more important to the development of nuclear weapons than the oscilloscope.  Oscilloscopes are electronic measuring instruments that record an electrical signal as a function of time and usually plot the information on a screen.  Because they can record events occurring in a hundredth of a millionth, or even a billionth of a second, oscilloscopes can log the brief events at the heart of an atomic bomb before it flies apart.  They are also widely used in designing and testing the timing, firing, and safing circuits for nuclear explosive devices, the testing and development of high‑speed electronics such as computers, radar and communications equipment, and can be used to help make guidance, control and tracking systems for missiles.  Oscilloscopes are made by companies in Germany, Japan, the United Kingdom, and the United States.


In the typical biological weapon production process, an organism is grown in a fermenter in a type of media favorable to the organism’s growth.  A 20‑liter fermenter combined with a filling port can be obtained from a home brewing supplier for under $50.  These suppliers can also be a source of larger capacity fermenters.

There are numerous types of fermentation vessels available. A standard fermenter consists of a cylindrical metal vessel (usually stainless steel) and either a cone‑shaped or a sloping bottom to facilitate emptying.  The fermenter also has a number of ports for adding or removing material.  Most are equipped for agitation with baffle plates fitted inside the fermentation tank and an impeller.  Fermenters are available from suppliers in Australia, Austria, Belgium, Canada, the Czech republic, Denmark, France, Germany, Italy, Japan, Netherlands, Russia, South Korea, Sweden, Switzerland, the United Kingdom and the United States.


Accelerometers are sensitive pieces of electromechanical equipment used in measuring acceleration, which is the rate of change of speed in a given direction.  Missile accuracy is directly dependent on the quality of the missile’s accelerometers and gyroscopes; missiles that fly for a long time without external updates require high quality accelerometers.  Information from the accelerometer, along with information on time, local gravity and orientation, allows vehicle speed, heading, and position to be determined by the guidance set or integrated flight instrumentation system.

Typically, three accelerometers mounted perpendicular to each other provide all the acceleration measurement information necessary for inertial navigation.  Combined with gyroscopes, they make up the missile’s inertial measurement unit.  Depending upon mission requirements, some unmanned aerial vehicles (UAVs) and cruise missiles require only one or two accelerometers.  Accelerometers are made by companies in China, France, Germany, Israel, Italy, Japan, North Korea, Norway, Russia, South Africa, Sweden, United Kingdom, and the United States.

Flow forming machines

Flow‑forming machines are used in manufacturing to make parts to precision dimensions.  They can produce rocket motor cases, end domes and nozzles, as well as numerous parts for the aerospace industry, including commercial aircraft parts, tactical missile components, and liners for shaped charges.  Flow forming machines are produced by companies in Germany, Japan, Sweden, Switzerland, the United Kingdom and the United States.

Centrifugal separators

Centrifugal separators utilize the force generated by rotating an object about a central vertical or horizontal axis.  The separator consists of a cylinder, a tangential inlet near the top, and an outlet for large suspended solids at the bottom.  The incoming agent-laden growth media is imparted with a rotating motion on entrance to the cylinder.  The vortex, so formed, develops a force that throws the heavier suspended solid radially toward the wall.  The force in a separator can approach 600 times the force of gravity, forcing separation of particles one micron or greater in diameter.

In a typical biological agent production process, an organism is grown in a fermenter in a type of media favorable to the organism’s growth.  The agent is then separated from the growth media or from other grown cells using a centrifugal separator.  Centrifugal separators are available from companies in Australia, Austria, Belgium, Denmark, France, Germany, Netherlands, Sweden, Switzerland, the United Kingdom and the United States.

Detonators and Multipoint Initiation Systems

These systems are needed to provide the precise explosive timing required to generate the implosion needed to start the nuclear chain reaction in implosive-type nuclear explosive devices.  They can also be used in military ordnance, including missile systems and directed detonation warheads.

These detonators utilize a small electrical conductor (bridge, bridge wire, or foil) that explosively vaporizes when a fast, high‑current electrical pulse is passed through it.  The exploding conductor then starts a chemical detonation in a contacting high-explosive material such as PETN (pentaerythritol tetranitrate).  In slapper detonators, the explosive vaporization of the electrical conductor drives a “flyer” or “slapper” across a gap, and the impact of the slapper on an explosive starts a chemical detonation.  Detonators are manufactured by companies in France and the United States.