UK Warns USA Over ITAR Arms Restrictions

Multi-national defense programs have gone from isolated instances to a major defense industry trend over the last two decades, and technology transfers are a critical and often-overlooked aspect of that trend. They also play a major role in fostering interoperability among allied militaries, especially those who wish to keep up with the USA and its seemingly endless stream of high-tech kit.

Britain is the USA's single most important global defense relationship, and they were promised a waiver for the USA's International Traffic in Arms Regulations (ITAR) under the Clinton administration in 2000. That waiver would enable the UK to acquire and make use of certain US military technologies without going through a tortuous license approval process. Now, with British troops fighting side-by-side with US forces in Iraq and major projects like the F-35 Joint Strike Fighter (and its associated CVF carriers) moving into a critical phase, British officials are becoming increasingly angry that the US had been unable to deliver.

Absent a satisfactory resolution, the risk that British defense procurement will shift explicitly toward European links and partners as a more dependable alternative is growing. If it is unfair to describe the present British state of mind as analogous to The Boston Tea Party, Thomas Jefferson's 1774 "A Summary View of the Rights of British America" might not be very far off the mark.

This is surely a development that could carry long-term foreign policy and defense implications for both countries, with ripples that extend beyond to new US alliances like India, where unease concerning US reliability as a supplier/ partner is palpable. DID explains the current situation, the source and root of opposition in the American political system to ITAR waivers for Britain and Australia, and the prognosis for progress.

ITAR relates to Section 38 of the USA's Arms Export Control Act (22 U.S.C. 2778), which authorizes the President to control the export and import of defense articles and defense services. In practice, amendments have been made to delegate this task to the Secretary of State. Applications to export items that fall under ITAR's reach because they are on the United States' Munitions List (a list that includes far more than just bullets), or are otherwise deemed to be military in character, are primarily administered by the Directorate of Defense Trade Controls within the US Department of State Bureau of Political-Military Affairs.

The problem is that complex ITAR rules force the UK and Australia to wade through a weeks-long process to get military export approvals, sometimes on mundane weapons parts and components. Indeed, the restrictions extend to "defense services," which can include "furnishing of assistance, including training, to foreign persons in the design, engineering, development, production, processing, manufacture, use, operation, overhaul, repair, maintenance, modification, or reconstruction of defense articles, whether in the United States or abroad" or furnishing of technical data. Unsurprisingly, therefore, this process also plays a role in joint defense projects.

On a managerial level, the effort required by the process has an effect on how broad information sharing will be on mutual defense projects. Time is a critical project variable, after all; if clearances take time, there will be fewer of them. This reduced breadth of sharing feeds into the ability of foreign industry partners to perform, and therefore affects both their frequency and breadth of participation. That dynamic, in turn, has consequences down the road for interoperability.

In an analagous vein, revelations that British and Australian officers serving in Iraq on joint operations are sometimes barred from the briefings because they aren't cleared to receive this information generate understandable chagrin, even as these practices reduce the allies' joint effectivenes on the ground.

ITAR and related restrictions also influence the difficulties associated with making use of of the resulting learnings elsewhere. That is, of course, their precise point; nevertheless, if close sharing inevitably results in a large stream of bureaucratic restrictions, the benefits of sharing decline somewhat. Especially if those restrictions also apply to trivial items, impede your close allies' ability to share with each other, and aren't seen by them as preventing any outcomes that wouldn't already be prevented by their existing policies.

On a human level, a refusal to remove at least some ITAR restrictions speaks to the issues of mutual interest, trust, and friendship upon which alliances of all kinds ultimately depend. Facing ongoing restrictions five years after promises are made at the higest levels of a closely allied government doesn't help much, either.

A recent unanimous release from the UK Parliament's Defence Committee ably illustrates the shift from initial patience, to recent chagrin, to a hardening of attitudes:

"According to the Financial Times, US Administration officials have concluded that political opposition on Capitol Hill to granting the UK a waiver from the International Traffic in Arms Regulations (ITAR) is insurmountable. The ITAR create a bureaucratic barrier to the export of unclassified defence equipment and technology.

The Committee regards that flow of equipment and technology as crucial to US-UK defence cooperation. Failure to achieve an ITAR waiver for the UK threatens the future of a number of joint procurement projects and has implications for UK defence policy and the UK defence industrial base.

The Committee have pursued this issue for several years and warned in a recent report that if the waiver was not secured there was a "a real risk that the close relationship between the UK and the US could be harmed." Commenting on the report, Committee Chairman, Rt Hon1 James Arbuthnot, MP said that "the inability of Congress to find a resolution on this issue will cause serious problems not only for the UK defence industry but also our Service men and women."

The Committee2 has asked MoD to comment on the media reports and it will consider taking oral evidence in December if it does not receive assurances that they are not well founded."

Nor is this the only expression of discontent. The issue has come up in past Defence Committee documents (see "Additional Readings...," below), and one can see the growing discontent as time passes. MSNBC also reports that UK Defence Minister Geoff Hoon sent a strongly worded letter last year to US Secretary of Defense Donald Rumsfeld, warning of a "serious blow to US-UK relations" if the promised waiver was not granted, and that Prime Minister Tony Blair raised the issue with George W. Bush during the President's recent visits to London.

Given the escalating seriousness of this situation, one is tempted to wonder why it has gone unaddressed for five years. The answer is not a question of sloth, or willingness on the part of the U.S. executive branch. It lies, instead, in the workings of the U.S. Congress.

It may seem strange to an observer from a parliamentary system to hear that one elected representative, and not even a Cabinet member at that, could bring such an important initiative to a halt. In the American political system, however, a well positioned representative can do exactly that. Henry Hyde [R-IL] is one of the House's most senior Republicans, and has held the position of Chairman of its Committee on International Relations since 2001. He has not budged on the ITAR issue - and therefore, neither has the USA.

This is not a position taken out of spite, or out of antipathy to Britain. Rep. Hyde's expressed concerns are threefold:

- His belief that after 9/11, the USA needs to tighten weapons technology controls rather than loosen them. In a response to then-Secretary of State Colin Powell, Rep. Hyde reportedly wrote: "Your department's proposal would suspend virtually the entire US government system of scrutiny and control... It is not obvious to us why suspending this system now makes sense in the post-9/11 security environment."

- Britain's lack of specific laws that prevent transfers of military technology to third parties. In the absence of firm laws, reliance on the future goodwill of Britain's industry, Cabinet, and Parliament is not seen as enough. DID has covered the EU push to lift the ban on military exports to China. Even though Britain eventually came around and helped lead the effort to shelve the proposal, initial participation by some British personalities and firms in the push to lift the ban gave Rep. Hyde a great deal of ammunition on this front.

- The specific nature of some of the potential recipients. We mentioned China, above, but a greater concern might be France, with whom Britain has significant defense technology ties via corporate cross-ownerships and some projects. Given France's "anything goes" defense export policies, an ITAR waiver that clears items to Britain without oversight could be seen as creating a potential clearing-house for technology transfer et. al. via other joint projects. The question of whom an ITAR waiver risks admitting is thus a live one.

Which brings us to the present impasse - an impasse that appears to be escalating. The issue has taken on more urgency as US military technology has become more sophisticated, making it challenging for its allies to operate on the same battlefield. If "interoperability" is a must, how shall it be realized?

The bad news is that unless Rep. Hyde changes his mind, it is unlikely that substantial progress can be made on this issue during this session of Congress. Which means a likely escalation of this situation in the UK come December, via Parliamentary Defence Committee hearings that could attract coverage and begin to publicize the ITAR issue in a way that would be detrimental to US interests in its relationship with Britain. The opportunity to combine this issue of implicit US mistrust with ongoing questions that relate to the Global War on Terror's Iraqi campaign may well be too great for some to pass up.

With major decisions at hand regarding Britain's future carrier force, minor but linked stirrings and questions about Britain's ongoing participation in the F-35 Joint Strike Fighter program, and relations between the USA and technology-transfer conscious India at a formative point, the timing could hardly be worse.

1. Can measures be taken in the short term that would serve to calm this situation, addressing British (and Australian) concerns within the limits of political possibility?

2. Can a longer-term modus vivendi be worked out that solves this problem in a more permanent way? MSNBC reports that according to US officials, talks to find an alternative to the ITAR waiver began earlier this month, and a revised approach has been broached with both British and Australian officials. A UK official reportedly confirmed this tack, noting that they "are looking to see if there is any other way we can make progress."

At the moment, the only country with an ITAR waiver in any form is Canada, under Sec 126.5 - and that waiver is limited in nature. In 2004, Congress agreed to pass a watered-down "solution," which gave UK and Australian export requests expedited status. That represents action in some form, but it does not really ease the problem - or the potential for fallout in the short term.

One hopes a sufficiently creative solution is possible, and that ways to streamline technology sharing and interoperability can be found even without a waiver.

In the longer term, however, one notes that this is Rep. Hyde's last term in Congress. He will not be running for re-election in 2006. While the Republicans are overwhelmingly favored to retain their House majority and therefore the chairmanship of the Committee on International Relations, there will be definitely a successor in the Chairman's seat. Whch leads one to the obvious questions:

- Will the White House retain enough clout post-2006 to influence that succession choice in a way favorable to Britain, Australia, and its own position on ITAR?

- Or has the legacy of the French-led EU push to lift the weapons embargo on China done so much damage that any successor is likely to insist on specific weapons export laws in Britain before waivers can be considered?

- If that should turn out to be so, will Britain draft such laws, or bridle at the restrictions and choose a different path - even if that means beginning to part company with the US?

- The answers to these questions could end up having a significant influence on America's British relationship - in the defense sphere, and possibly beyond. Wise choices on all fronts are essential.

- US Department of State - Defense Trade Controls - The International Traffic in Arms Regulations (ITAR) [HTTPS connection]. See the official version, and an unofficial consolidated version that integrates recently-introduced amendments. Note that all documents here are in PDF format.

- USA's International Trafficking in Arms Restrictions - excerpts in HTML. Warning: older version.

- UK House of Commons Defence Committee (Nov 24/05) - ITAR Waiver Defence Committee Comment

- UK House of Commons Defence Committee Transcript, Evidence heard in Public Questions 146 - 247 (Oct 25/05) - Minister for Defence Procurement Lord Drayson re: CVF Program Progress. See esp. Questions #219-229, all of which cover technology transfer and operational independence concerns in the context of the Joint Strike Fighter, and its implications for their CVF future carrier project.

- UK House of Commons Quadripartite Defence, Foreign Affairs, International Development and Trade and Industry Committees (March 14/05) - Strategic Export Controls: First Joint Report of Session 2004â€“05 [PDF format]

- UK House of Commons Defence Committee (July 14/04) - Defence Procurement: Sixth Report of Session 2003-04, Volume 1 [PDF format]

- Financial Times UK (Nov 23/05) - The Hyde-bound struggle for transatlantic understanding US House of Congress, Committee on International Relations

- Rep. Henry Hyde (Apr 18/05) - Congressman Henry Hyde Will Not Seek Another Term in Congress

- DID (Aug 31/05) - Britain's "Anti-US" Procurement Policies - and the Future Dynamics of Global Procurement. Its conclusion re: modern defense procurement generally underlines the critical role of effective technology transfer, esp. in the less visible places. See also the Sept 2/05 follow-up UK Issues Several FRES Transformational Armored Vehicle Contracts, which examines some of the assertions made by crtics in the previous article.

1 For non-Parliamentary readers, "Right Honourable" is the term of address for a Baron or a Member of the British Privy Council. It is also used in other Commonwealth countries to describe certain positions, such as the Prime Minister.

2 The UK Parliament's Defence Committee is currently made up of the following Members of Parliament:

The EU should stop threatening to lift the arms embargo to communist china. Most of their tech is shared technology from the US. Also, you cant trust the French once they get their hands on it.

Does the US need the UK enough to trust it with its military tech ?

Would the US be better served by fostering relations with India, and letting Europe slide into insignificance ?

Does the US need the UK enough to trust it with its military tech?

Would the US be better served by fostering relations with India, and letting Europe slide into insignificance?

One does not preclude the other. India has it's own issues, but any partnerships dealing with military sensitive technology should be based on mutual assurance that that technology won't end up in the enemy's hands.

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