The export of military-related items from the US is controlled by two pieces of legislation, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations.
There is a list of restricted items under ITAR which includes firearms, ammunition, missiles, explosives, vehicles, aircraft, military training equipment, personal protective equipment, and technical data. All items on the extensive list are restricted and companies or individuals must seek approval before exporting them.
The Department of State Directorate of Defense Trade Controls (DDTC) interprets and enforces the ITAR and US companies looking to export have to work with the department. Organizations or individuals who breach the regulations are subject to heavy penalties.
Boeing had to pay $51m earlier this year for exporting items to China and Russia in violation of ITAR and other rules. It was the second-highest penalty the State Department had imposed, after fining BAE Systems $79m in 2011. With such a high price tag, companies and individuals have to be extra cautious when selling defense-related equipment abroad — and many are deterred from doing so.
The ITAR was enacted by Congress in 1976 as part of the International Security Assistance and Arms Exports Control Act during the Cold War. The intention was to limit arms being exported to a key adversary during an era of conflict.
While the regulations were a good idea at the time they were drafted, and kept munitions out of the hands of the USSR, today they are hurting Ukraine’s chances of winning on the battlefield.
Designed for a different era, according to US defense sector executives who asked not to be identified, they are preventing allies, and the US specifically, from sending military aid to Ukraine. If Washington genuinely wants to help Ukraine win this war for good, it needs to be open to taking on higher levels of risk when it comes to exporting munitions and battlefield technology.
The other tool the US government uses to regulate the export of US technology and goods is the US Department of Commerce’s Bureau of Industry and Security’s Export Administration Regulations (EAR.)
These govern the export and re-export of some commodities, software, and technology for which companies are required to obtain export licenses.
The restrictions under both EAR and ITAR are great for ensuring US products and technology do not fall into the hands of malign foreign actors, but need to be updated and modernized.
If helping Ukraine repel Russia is not enough of an incentive, there is also an economic argument. A study published by the US Department of Commerce Bureau of Industry and Security in 2014 found that, between 2009 and 2012, the US space industry alone lost an estimated $988m–$2bn in foreign sales due to export controls. That number will likely be much higher now.
Given the review process for export, cases can take a long time, and companies often cite confusion about the steps required, the US should examine options for expediting reviews to help countries experiencing active wars.
Although the US Congress implemented some major ITAR reforms as recently as 2013, the time is right for a new overhaul. Some experts have suggested Congress should commission an unclassified independent review of the whole process to identify ways to make it more practical for today’s challenges.
It is clear that export regulations are having a negative impact on the battlefield and the US should step up to the challenge and update the regulations now. It is vital to act urgently to assist and support our Ukrainian allies as they fight for their country’s survival.
Krista Viksnins is a Senior Program Officer with the Transatlantic Defense and Security Program at the Center for European Policy Analysis. She received her J.D. from the University of St. Thomas School of Law and her B.A. in Political Science and Spanish from St. Olaf College. She is also a licensed attorney.
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions expressed on Europe’s Edge are those of the author alone and may not represent those of the institutions they represent or the Center for European Policy Analysis. CEPA maintains a strict intellectual independence policy across all its projects and publications.
US Bases in Europe
Military experts explain why US bases in Europe matter.
