In the United States, the Export Administration Act (EAA), originally passed in 1979 to supply the US Commerce Department with regulatory powers over sensitive business transactions, was allowed to expire in 1994. For the rest of the 1990s, temporary extensions of the EAA, often achieved by executive orders from the President under the International Emergency Economic Powers Act, provided ad hoc export control measures that became progressively less rigid, focusing on case-by-case assessment and applying looser standards. The classic case study is the encryption industry, which supplies ever more advanced software essential to modern businesses but also potentially useful to terrorists and other criminals. Currently, the law grants US businesses relatively unencumbered export and international use of 64-bit encryption programs that were strictly regulated just five years ago.

US Trade Wars

The terrorist attacks of September 11, 2001, transformed the US approach to export regulation and set in motion the events that would bring multilateral DUT regulation into its third stage. Just days before, the US Senate passed a new and well-heralded Export Administration Act that further liberalized export controls on a wide variety of goods, increased penalties for violators, and granted the President case-by-case control over export prohibitions. The bill passed overwhelmingly, was backed by the President, and received significant support from US businesses. But in the wake of the attack, the bill failed in the House of Representatives, which supported broader and more severe control measures. The debate has continued since, with no immediate resolution in sight.

Meanwhile, the US Commerce Department intensified enforcement efforts after 2001, achieving previously unprecedented media attention. In the absence of a new EAA, criminal prosecutions related to DUT trade violations have been pursued under arms export laws that designate particularly dangerous commercial products as munitions. Following this strategy in 2002, an undercover US Customs Service investigation led to criminal charges that a group of executives at Oregon-based Camnetics Manufacturing concealed the nature of prohibited engine shipments to Iran; in the same year, two individuals were sentenced to jail time for trying to smuggle an encryption device to China.

Heightened enforcement of laws like the Arms Export Control Act has also applied increasing pressure on major corporations. In 2003, the Boeing Company concluded penalty agreement with the US government amounting to US$32 million after one of its recently acquired subsidiaries, formerly Hughes Electronics, was found to have shared rocket parts and regulated information with a Chinese company. Just two years before, Boeing had to pay a comparatively small three million US dollars—then the second largest export control fine in US history—after another of its subsidiaries, McDonnell Douglas, was accused of selling controlled machine parts to a Chinese firm.

US trade law also reinforced diplomatic efforts to increase DUT-compliance in foreign states like China, which has long occupied a vital but strangely contradictory position regarding export regulation. On one hand, China has been courted by the United States as a potential ally in the struggle to keep DUTs and arms out of states like India, Pakistan, Iran, and North Korea; yet China is also intensely distrusted as a long-time violator and beneficiary of anti-proliferation efforts. In the past, China’s government has walked this line on purpose, reaping the maximum benefits from both illicit DUT exchanges and high-tech Western trade

In July 2002, for example, US President Bush’s administration imposed trade sanctions on nine Chinese companies for allowing weapons-related exports to Iraq. US sanctions raised the following year against Norinco, a major state-run conglomerate accused of trading ballistic missile technology to Iran, could cost Chinese businesses US$100 million in exports. After years of empty promises to US authorities that it would rein in its international missile sales, however, China finally imposed missile control measures in August 2002, and the government is showing signs that it is trying to crack down on future DUT trades that could lead to increased proliferation of weapons of mass destruction (WMDs).

Interpreting Intelligence

But DUT came into its own only when Bush and UK Prime Minister Tony Blair began to promote the idea that Iraq had acquired sufficient technology, largely through commercial purchases, to reconstruct its WMD program. Suddenly, and for the first time, serious discussion of DUT-related export controls expanded beyond commercial law journals and market news reports to the mainstream international press. The stakes in this popular discussion, however, were markedly different from the ones typical of DUT debates in the past, when the technologies in question were products like computers, helicopters, or missile parts. Instead, the intelligence information made public in both countries to justify a possible invasion focused almost entirely on those DUTs that could be applied in the creation of WMDs.

Much of the information publicized in the months leading up to the war has since been sharply criticized for being misleading or unreliable, causing some to accuse the governments involved with deception, but it is possible that the errors contained in these documents might have more to do with the changing terrain of DUT-related intelligence analysis than deliberate subterfuge. DUTs are traditionally considered attractive components for WMD programs in part because they are easily mistaken by customs agents for legitimate transfers. In a post-September 11 world, however, the intense suspicion cast on any trades conducted by targeted rogue states has largely undermined this advantage and replaced it with the new danger that intelligence could be over-interpreted by regulating countries, leading to self-defeating policy decisions.

The simplest example is offered by the now infamous aluminum tubes and Nigerian uranium allegedly pursued by agents of the Iraqi regime in the years leading up to its demise. Iraq was known to have attempted to purchase thousands of aluminum tubes potentially useful in a uranium-enriching process that also employs gas centrifuge and magnetic assembly apparatuses. To a cynical intelligence analyst, verified attempts at purchasing very large quantities of these tubes unambiguously indicate the presence of a nuclear weapons program. Added to that even an uncorroborated intelligence report claiming that the same state sought enrichable uranium, and the guilt of the misbehaving country could not seem plainer.

Yet the pipes are still just pipes whether or not they could be useful in a WMD program, and the crucial component of the analysis must be the alleged attempt to acquire a fissionable substance, which accordingly deserves a level of scrutiny apparently not applied until after Iraq’s nuclear weapons program was shown to be far less advanced than suspected, if it even existed at all. Though at the time of this writing the intended fate of the thousands of imported aluminum tubes remains unconfirmed, there is—and was prior to the war—strong evidence that the pipes were meant for conventional weapons. If US and UK policy makers interpreting the evidence on Iraq’s nuclear program were fooled, one reason might be that they let an emphasis on the dangers of DUTs prevent fair consideration of less threatening possibilities.