The time has come to take a stand. Over the course of the past three years Bigelow Aerospace has suffered mightily under an irrational and counterproductive export control regime. Despite the unwarranted and egregious burdens of the International Traffic in Arms Regulations (ITAR) we successfully completed both the Genesis 1 and 2 campaigns. However, while forced to tolerate the vicissitudes of America’s broken export control system, we returned from Russia steadfastly determined to fight for change.
Frustration with ITAR has been growing. The Government Accountability Office, the Center for Strategic and International Studies and even officials within the National Security Space Office have all called for reform. But in Washington, talk is cheap. We at Bigelow Aerospace prefer action to words, which is why in December 2007 Robert Bigelow authorized my office to proceed with a Commodity Jurisdiction (CJ) request that represents no less than a direct challenge to the current regime.
For those of you who are unfamiliar with the Byzantine processes of our export control system, a CJ request is a legal vehicle that companies can use to force the Directorate of Defense Trade Controls (DDTC) to rule on whether a particular technology or piece of hardware should be covered by the Department of State’s U.S. Munitions List or by the Department of Commerce’s Commerce Control List. Many have complained that widely available commercial space-related technologies should be transferred back to Commerce from State, but, to my knowledge, Bigelow Aerospace is the first entity to actually try to do something real about it.
Specifically, our CJ request is based upon the unassailable fact that expandable space habitats are not advanced telecommunication satellites whose export would pose a national security risk, and therefore the ITAR is not applicable. In support of this contention I refer back to the 1999 Defense Authorization Act, which stated that ”the exportation or transfer of advanced communication satellites and related technologies from United States sources to foreign recipients should not increase the risks to the national security of the U.S.”
This simple desire, to not increase national security risks via the transfer of advanced communication satellite technology, has been perverted by placing all spacecraft systems and associated equipment under the U.S. Munitions List and the ITAR. The problem here is not Congress, congressional language or existing law – a fact that many in Washington seem to miss. The real issue lies in the Department of State’s interpretation and implementation of Congress’ words.
Simply put, the great tragedy of ITAR reform is that no real “reform” is necessary. The congressional language described above is neither irrational nor overly burdensome. As Mr. Bigelow stated in a previous editorial [“Pouring Whiskey on a House Fire,” Feb. 4, page 19], Congress never intended nor likely could have even imagined that the 1999 Defense Authorization Act would have led to a situation where widely available commercial technologies would be regulated under the ITAR.
It is the Department of State’s interpretation of the law that has led to the current crisis. In implementing Congress’ wishes, State failed to establish a process that would distinguish benign, widely available commercial space systems whose export poses no national security risk whatsoever, from the “advanced communication satellite technology” that Congress really wanted them to focus on. Instead, the bureaucracy decided to treat all space systems and hardware under the same harsh regime. I can certainly understand the reasoning for doing so; it’s the safe and easy way out. If you don’t bother to distinguish widely available commercial technologies from “advanced telecommunication satellites that could pose a national security threat” you will never make a mistake. However, the price we have paid for this dramatically overly broad policy, the crippling of America’s ability to compete in the global space marketplace, has been far too high.
Yet, neither this editorial nor our CJ request should be viewed as antagonistic in its intent or nature. Far from it, we believe there are some excellent people at DDTC and many more at the Defense Technology Security Administration, several of whom privately share our concerns. We hope that such individuals will seize the opportunity our CJ request presents to work with us in establishing a common sense export control regime that properly places benign technologies on the Commerce Control List and hardware that actually is militarily sensitive under ITAR and the U.S. Munitions List.
We at Bigelow Aerospace consider ourselves patriots, and are the first to support protecting sensitive technologies. Such efforts will be bolstered when personnel at the Defense Technology Security Administration and DDTC don’t have to deal with the distractions caused by monitoring technologies that are already widely available on the international marketplace. We can have both security and sanity in our export control regime and, via our CJ request, we look forward to working with our friends at the Department of State to craft such a policy.
The benefits of Bigelow Aerospace successfully resolving its CJ request would affect not just our company, but the entire industry. Our CJ request represents a unique opportunity for industry and regulators to together actually begin the process of change. As always, Bigelow Aerospace is happy to be the trailblazer, but we cannot fight this battle alone. Instead of cowering in the shadows, and complaining at meetings and conferences, we would urge others, whether you work for the private sector, government or academia, to contact the DDTC and express support for our request and the implementation of a commonsense export control policy. The time for talk and trepidation is past and the time for action and courage is upon us. It is our responsibility as citizens to reign in an out-of-control regime that is threatening our national security and destroying American commerce and competitiveness. If we don’t do it, no one will. To quote Thomas Paine, “the strength and power of despotism consists wholly in the fear of resistance.”
Mike N. Gold is corporate counsel for Bigelow Aerospace.