Yesterday the U.S. Court of Appeals for the Ninth Circuit upheld the dismissal of a lawsuit filed against Caterpillar by relatives who had been injured when Caterpillar D9 bulldozers were used to demolish homes in the Palestinian Territories. The court ruled that, because of the foreign policy issues implicated by the case, the complaint was subject to the political question doctrine and therefore not justiciable, i.e. not within any court’s jurisdiction.

This ruling was premised on the court’s finding that all the bulldozers had been sold to Israel under the Foreign Military Financing (FMF) program. According to the court:

[T]hese sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States. See 22 U.S.C. § 2751 (stating that the purpose of the Arms Export Control Act, which authorizes the FMF program, is to support “effective and mutually beneficial defense relationships in order to maintain and foster the environment of international peace and security essential to social, economic, and political progress”).

Now this might make sense if Caterpillar manufactured an armored or military spec version of the D9 bulldozer. But it doesn’t. The Israeli Army customizes the civilian D9 to its own military specifications and then ironically renames these armored behemoths “Doobi” (Hebrew: דובי‎; lit. teddy bear). In fact, the U.S. Army has purchased armor kits from the IDF to convert D9s for use in Iraq.

The point of this is that Section 23 of the Arms Export Control Act, which authorizes the FMF program, only covers procurement of defense articles and services. If the D9 bulldozer is not a defense article, then the Ninth Circuit’s reliance on the AECA as a justification for finding that the law suit presents non-justiciable questions of foreign policy is misplaced. And if an unmodified D9 is now considered a defense article, it can’t be exported without a license under section 38 of the AECA, a conclusion that the folks at Caterpillar might find somewhat inconvenient. The Ninth Circuit, however, never looked behind the U.S. Government’s suspect decision to sell these items under the FMF program and, therefore, never saw this possible dilemma.

The Guardian had an interesting dispatch from this year’s Defense Systems and Equipment Show:

Two companies were ejected last night from Britain’s biggest arms fair for promoting leg irons for prisoners and battlefield captors. BCB International, a British-based firm, and Famous Glory Holding, a Chinese company, were thrown out of the biennial Defence Systems and Equipment show which opened in London’s Docklands yesterday.

Although the type of leg irons on offer appear to escape the government’s ban on the sale and export of equipment that can be used for repression and torture, their promotion is hugely embarrassing to the exhibition’s organisers.

I’m sorry but I just don’t get that. You can exhibit at the DSEI show equipment that can wreak havoc six ways to Sunday but you can’t display leg irons? Because its embarrassing? That’s like banning the exhibition of skimpy pajamas at an “adult” product show.

On another note, you have to admit that Famous Glory Holding is the best name — ever — for a Chinese defense company.

The fact sheet released by the State Department’s Bureau of Political-Military Affairs on the defense trade treaty recently signed by President Bush and Australia’s Prime Minister Howard provides few details on what the treaty says. Fortunately, a detailed FAQ on the treaty was posted on the Australian Prime Minister’s website. Here are some of the more interesting portions of the FAQ.

First, unlicensed exports under the treaty will still require governmental notification:

Under the Treaty, US exporters will only need to advise the State Department that they have engaged in an eligible defence export activity; they will not need to apply for a licence.

Second, although government-to-government sales under the Foreign Military Sales programs are not addressed by the treaty transfers of technical data relating to the approved FMS equipment will not be required:

The arrangements for approving the export of US defence equipment to Australia on a government-to-government basis under the Foreign Military Sales (FMS) program will not be included under the Treaty. But once the equipment has been received in Australia, retransfers of the FMS-origin technology within the approved community of Australian companies will be permitted without the need for further approvals, significantly enhancing our ability to support this equipment in country and creating improved opportunities for Australian companies.

Third, the treaty permits unlicensed exports to companies in the “approved community.” The FAQ provides more detail on the requirements to be in that community. An Australian company would be excluded if

- There is a serious failure to comply with Australian export control laws and regulations and/or the commitments undertaken in joining the approved community;

- A company fails to meet its security obligations under the Defence Industry Security Program;

- There is a failure to provide written notification of material changes in the facts provided with the company’s application for qualification;

- There is a significant risk that there will be unauthorised diversion of articles or data provided under the treaty;

- There are false statements, misrepresentations or omissions of fact in the application or export related documentation, or significant failures to provide or maintain records of US defence articles and data in the company’s possession.

Fourth, the treaty will include verification procedures:

The Treaty will stipulate the setting up of a compliance and audit regime, the details of which have yet to be mutually determined.

Finally, as with the analogous U.S.-U.K. treaty, the treaty with Australia will exclude “highly sensitive exports” although there is not yet any agreement as to what articles will be deemed to be “highly sensitive.”

Last Friday, the UAE announced it’s long-promised export law. The new law not only forbids the unlicensed export of “strategic goods” including military hardware, CBW precursors and dual use items but also creates a catch-all exception that would allow the UAE government to ban other exports that it deems a threat to the country’s “national security, foreign policy, natural resources, public health and safety or the environment.” The announcement of the new law is part of the UAE’s response to continuing complaints from the United States that sensitive exports to Iran have been funneled through the UAE.

The ink on the new law was scarcely dry before Iran chimed in to denounce the law:

The U.S. pressure on the UAE is in the direction of the same illegal U.S. policy against Iran in the past and beyond the U.N. resolutions,” said Mohammad Ali Hosseini, spokesman for Iran’s Foreign Ministry.

…

Iran’s most widely circulated newspaper, Hamshahri, warned in its editorial Sunday that trade restrictions would hurt Iran, the UAE and other Mideast countries.

“Putting Iran’s economic interactions in danger would mean economic risk for many countries,” said the paper. “Under the circumstances, the UAE would not be able to repeat its economic boom years.”

Since the U.A.E. law doesn’t forbid all exports to Iran, the hue and cry from Tehran seems an implicit concession that defense articles and dual use items are indeed being funneled to Iran through the UAE.

An article in today’s edition of the Financial Times reports on a press conference given yesterday by John Rood, Assistant Secretary of the State Department’s Bureau of International Security and Nonproliferation, where Rood discussed the recently signed Defense Trade Cooperation Treaty between the U.S. and the U.K. (Don’t go looking for a transcript at the State Department’s website; usually only Sean McCormack’s daily press briefing is posted and other special press briefings, such as Rood’s on the treaty, are not.)

Rood had a few interesting things to say. First, he said that the administration hopes to get the treaty through the Senate before the end of this year. This seems optimistic at this point with the August recess nearly upon us. Additionally, it is unclear how functional the Senate will be after the slumber party planned for the next few nights.

Second, Rood said that the State Department and the Department of Defense hoped to have “implementation procedures” in place “within six months” to determine what companies and individuals would be part of the “approved community” that could receive and disclose ITAR-controlled technical data without formal approval by the Directorate of Defense Trade Controls (DDTC).

Finally, Rood more or less dashed the hopes of other countries — such as Canada and Australia — that might arguably wish to have similar treatment as the U.K. Rood said the treaty was entered into because of the “close relationship” between the U.S. and U.K. Then he said:

If other countries approach us we’d have to ask ‘Do they have the same close relationship?’ I don’t know if we’ll do anything like that or not.

I’m sure that remark was well received in Ottawa and Canberra.

Amnesty International, according to a letter it sent last Friday to the President of the Council of Ministers of the E.U., has evidence that India intends to transfer two military helicopters to the Myanmar military. The Dhruv Advanced Light Helicopters in question contain component parts from E.U. defense suppliers. As a result Amnesty International is asking E.U. member states to withdraw existing licenses and deny future license for any exports to India that could be used for the Dhruv helicopter. Amnesty is also asking the E.U. to impose upon future exports a strict and enforceable condition that items could not be re-exported to countries subject to arms embargoes.

The Dhruv helicopter also incorporates U.S. parts. The active vibration control system is made by Lord Corporation in North Carolina. U.S. companies supplying components to India that could be used for the Dhruv should expect increased scrutiny if the delivery to Myanmar takes place.

Although incorporating a number of advanced features, the Dhruv has been plagued by some controversy. In February of this year a Dhruv crashed, killing one pilot and injuring the other, during practice maneuvers for an air show. A 2004 crash had been blamed on defective tail rotor design, which was claimed to have been fixed. The February crash calls that into question. However, the Myanmar regime can’t afford to be picky and will no doubt accept delivery of the Dhruv whether or not the tail rotor has been fixed.

Officer Ozzie Ossifer is patrolling in Vermont near the Canadian border when he witnesses a juvenile engage in an act of malicious criminal cow-tipping. He takes off after the delinquent who crosses the Canadian border. He follows the youth into Canada, his service revolver still firmly stored in his holster. Donuts and desk work have taken their toll on Officer Ossifer and the youth eludes him.

A bad day for the faithful law enforcement official becomes worse when he’s stopped by ICE as he attempts to cross back into the United States. He’s cuffed and taken away for having violated the Arms Export Control Act when he carried his service revolver into Canada without a license from the Directorate of Defense Trade Controls. The cow-tipper having escaped scot-free returns night after night to Vermont to terrorize the local bovine population while Officer Ossifer is on forced administrative leave.

“Nonsense,” you say. Surely the ITAR must have an exemption for this. Well, the ITAR does have an exemption for temporary exports of firearms in section 123.17, but that exemption would be of no avail to the officer in this case. Officer Ossifer made no declaration of the weapon and there was no customs inspection. Things look grim for our fictional Officer Ossifer.

However, the U.S. and Canada are working on an agreement that may protect future (and real) law enforcement officers that cross the Canadian border with their weapons. An article on the CTV website today revealed that Canada is considering a change in its Export and Import Permits Act to permit exempt imports and exports by law enforcement officers when they cross the U.S.-Canada border in the course of their official duties. Significantly this is said to be part of a reciprocal arrangement with the United States, although the United States has yet to announce that it is considering such a reciprocal arrangement.

The chief motivation appears not to be hot pursuit cases such as the one described above, but the U.S. Air Marshall program and its Canadian equivalent, the Canadian Air Carrier Protective Program. Section 123.17 of the ITAR doesn’t apply to U.S. air marshals, who instead can only export firearms without a license under section 123.18 and then only “if they are assigned abroad for extended duty.” It is, of course, safe to assume that the TSA and its air marshals have simply been ignoring the ITAR. If the CTV report is right, we can expect to see soon a revision of the ITAR to cover temporary exports of service weapons by law enforcement officers in the course of their official duties.

The Canadian Gazette notice of the proposed change in Canadian law can be found here.

Although the text of the Defense Trade Cooperation Treaty signed last week by Bush and Blair has not yet been released to the public, the Society of British Aerospace Companies has published a summary of key points of the treaty. The summary answers some of the preliminary questions that were raised by conflicting press accounts of the treaty that we previously reported here.

Of key interest are what items will be subject to the treaty. Apparently the answer to that is almost everything on the USML. According to the SABC summary:

All USML items, with a small number of exceptions for highly-sensitive technologies that will be agreed between the UK and US, will be included in the coverage of the treaty. Subject to final agreement, the exceptions are likely to relate to low-observable technology and countermeasures, “anti-tamper” technology and communication security technology.

Additionally, dual-use items on the U.S. Commerce Control List will not be subject to the treaty, whereas “dual use” items on the U.K. Strategic Export Control List would be subject to the treaty. The reason for the different treatment of U.S. and U.K. dual use items is not clear and is not explained in the summary.

The SBAC summary also provides some interesting details on the export of technical data. The treatment of technical data in the treaty will be the subject of a separate post.

Credit is due to Jim Bartlett at Northrop Grumman for finding the SBAC summary. When a text of the treaty is made available, we will post it here.

UPDATE: SBAC removed the key points summary of the treaty from its website. We have fixed the link above to point to our archive of the key points document. You can also see that document by clicking here.

President Bush and Prime Minister Blair today signed the “Defense Trade Cooperation Treaty” which will ease export license requirements for defense articles exported between the United States and the United Kingdom. Details of the treaty are scarce at this point as the text of the treaty has not yet been released. The treaty will also require Senate approval, so even if the text were available, nothing is certain yet.

The official press release from 10 Downing Street, which first reported the signing of the treaty, was, to say the least, vague. No indication was made in the press release to the elimination of export license requirements.

The White House thereafter announced the treaty during Dana Perino’s Press Gaggle this afternoon on Air Force One:

The President and Prime Minister Blair signed a treaty this morning. It’s called the U.S.-U.K. Defense Trade Cooperation Treaty. It would improve transatlantic defense cooperation and counterterrorism efforts by alleviating barriers to trade in defense goods, services, and information between the two countries, including our defense industries. We are going to present this treaty to the Senate for their advice and consent.

The reasons we’ve undertaken this treaty with the U.K.: As you know, it’s our closest ally and our biggest defense trade partner, for several reasons. It’s in our national security interest to support joint U.S.-U.K. military and counterterrorism operations in a timely way, and to speed U.S.-U.K. research and development and production of the next generation of interoperable defense technologies. It’s also in our homeland security interests. We’re going to be collaborating with the United Kingdom to develop the most effective countermeasures possible to combat terrorist attacks at home and against our partners in the war on terror, and we also believe it is in our security and economic interests to save money by leveraging each other’s experience and by reducing duplication of efforts on some of the research and development that’s been going on.

To which a reporter immediately asked:

Q. Can you do any of that in English?

MS. PERINO: That wasn’t in English? I totally understood it.

Another press conference was held at State Department where spokesman Sean McCormack appears to have provided more details on the treaty. As of the time of this post, the transcript of that briefing was not yet on the State Department website.

Of course, the question in the forefront of everyone’s mind is what items will be exempted from export license requirements. The AP story on the treaty seems to suggest that the license requirement will be dropped on all military equipment. The Agence France Presse story is somewhat more circumspect and says that the license requirement will be eliminated for “certain U.S. military equipment.”

As soon as we can provide any answers to that question, we will try to do so.

UPDATE: The White House just released on its website a “Joint Statement Between the United States and the United Kingdom,” which also provides no detail on the elimination of export licenses between the two countries.

The Directorate of Defense Trade Controls (”DDTC”) announced today that it was amending section 126.1 of the ITAR to reflect a partial lifting of the arms embargo against Somalia. These amendments are being adopted to implement revisions made to the Somalia arms embargo by U.N. Security Council Resolution 1744 adopted on February 21, 2007. Thee three month delay in announcing the amendments, which have not yet even been published in the Federal Register, indicates that revising the arms embargo on Somalia was not exactly put on the front burner at DDTC.

In January this year, an offensive by Ethiopian troops overthrew the fundamentalist Islamic militia that had ruled the country and allowed the emergence of the Transitional Federal Government of Somalia (”TFG”). The TFG is the result of mediation by the Intergovernmental Authority on Development. Formed in late 2004, the TFG governed from neighboring Kenya and then moved to Baidoa, a city in Western Sudan. On January 8, 2007, the TFG established itself in Mogadishu, the capital of Somalia. Shorthly thereafter, the African Union announced that it was opening a mission in Somalia aimed at promoting stability in Somalia as the TFG attempts to establish itself, consolidate power, and transition to a democracy through elections in 2009.

The UN resolution lifted the arms embargo in two respects. First, it permits export to Somalia of “weapons and military equipment, technical training and assistance intended solely for the support of or use by” the AU Mission. Second, it permits exports of the such military supplies, assistance and training “intended solely for the purpose of helping develop security sector institutions, consistent with the political process” leading to the establishment of the TFG and elections in 2009. The meaning of “security sector institutions” is unclear, but all such exports need to be notified to the Security Council Committee on Somalia and may proceed only in the absence of a negative decision by the Council within five days of such notification.

Continued violence and unrest in Somalia suggest that the January victory of the Islamic militias may not have been complete and call into question whether the TFG will be able to bring stability to the nation with a view towards elections in 2009. The U.S. seems to harbor some skepticism about the situation in Somalia, and this could well explain the delay by DDTC in implementing Resolution 1744.