Ignorance Is Indeed a Defense: NASA Ames Edition

Posted by at 6:06 pm on March 5, 2014
Category: DDTCDeemed ExportsITAR

Aerial View of NASA Ames Research Center [Public Domain]The NASA Office of Inspector General completed its investigation of unlicensed releases of ITAR-controlled technology to foreign nationals working at the Ames Research Center and — surprise! surprise! — it found no evidence of any violations of law. According to a summary of the OIG report, ITAR-controlled information was released without proper authorization to foreign nationals working at Ames. However, this was not a violation of law, just “poor judgment,” which is a nice way of saying that ignorance of the law can be a defense if you work at NASA and are being investigated by the NASA OIG. The full report was withheld because of privacy concerns, i.e., it mentioned the names, I would presume, of all the people running around at Ames and exercising poor judgment.

As they say on the car commercials: “Professional government workers exporting on closed course. Do not attempt this yourself.” In other words, “poor judgment” will not be enough to exonerate deemed exports in the private sector.

The reason for this all being just a lapse of judgment and not an export violation is this:

We … found significant disagreement between scientists and engineers at Ames and export control personnel at the Center and NASA Headquarters as to whether the work the foreign nationals were performing at Ames involved ITAR-controlled technology.

For you and me, such confusion means you need to file a Commodity Jurisdiction request with the State Department to clear things up. For NASA workers it means that export controls are hard and engineers can’t be blamed for getting hard questions wrong. This statement is somewhat incredible in the context of this finding in the report:

In addition, on two occasions a senior Ames manager inappropriately shared documents with unlicensed foreign nationals that contained ITAR markings or had been identified as containing ITAR-restricted information by NASA export control personnel.

But, yeah, everybody was still confused and disagreeing over whether this stuff was ITAR-controlled or not.

Then we have the part of the report which suggests that Professor Roth probably wishes he worked at NASA and not the University of Tennessee.

We also found that a foreign national working at Ames inappropriately traveled overseas with a NASA-issued laptop containing ITAR-restricted information. Even though the foreign national had an ITAR license at the time, the regulations forbid taking such export-controlled information out of the country. However, we were unable to substantiate concerns that the foreign national shared ITAR-protected information while overseas.

Professor Roth is sitting in a federal correctional facility in part because he carried a laptop with ITAR-controlled data to China without any evidence whatsoever that he even opened those files on his computer while in China. I think this is what some people might call a double standard.


Bookmark and Share

Copyright © 2014 Clif Burns. All Rights Reserved.
(No republication, syndication or use permitted without my consent.)


Your comment about Professor Roth was on point

Comment by Darrell Coleman on March 6th, 2014 @ 2:41 pm

This is indeed a double standard. One wonders why Main Justice chose Dr. Roth to be the one and only academic researcher to prosecute for using foreign graduate students and travelling with ITAR controlled data on a laptop when it was a common practice at more storied universities as well as research institutes outside the South. Could it be that the Ivy Leaguers at DoJ decided that if they had to make an example, they would choose to break a cracker rather than one of their own? The local AUSAs in Knoxville could not have persecuted Roth and Sherman without the permission and support of Main Justice and DDTC. Trust Main Justice and DDTC to treat Tennessee like Russia treats Georgia.

Comment by Hillbilly on March 6th, 2014 @ 3:01 pm

The irony is that Roth’s original funding for plasma actuator research was by a NASA grant. The difference between the above case, and nightmare involving Roth and myself, is that the responsible administrative entity for these engineers didn’t throw their employees to the lions.

The determination of what is and isn’t controlled seems to be determined by the droppings of glowing unicorns held in some secret government location. While Roth certainly did several things wrong, the entities involved successfully shucked their contractual responsibility onto their underlings. The prosecution of Roth and myself was about sending a message to academia and providing new grist for career bureaucrats. Roth got lucky that his scarlet letter only adorns during his retirement, and doesn’t restrict his whole profession career.

Comment by Daniel Max Sherman on March 7th, 2014 @ 12:55 pm