Foreign military sales and the Missile Technology Control Regime: a new focus for the future

DISAM Journal, Summer, 2002 by Bill Lieutenant Colonel Rimpo

June 7, 2009, intermediate ballistic and cruise missiles carrying chemical and biological weapons rain down on the Bandarian capital and Bandarian military bases. The missiles, launched from neighboring Zastavia, shattered Bandaria's infrastructure and military forces. Allied forces were stunned by the swiftness of the attack, in particular the sophistication of the delivery systems. The technological advances Zastavia made in developing weapons of mass destruction and acquiring the capability to deliver such weapons left intelligence services scrambling to uncover the source of Zastavia's rapid advancements.

While this scenario is fictional, in reality there are countries and terrorist organizations that are in full press to acquire weapons of mass destruction along with the delivery systems for those weapons. Foreign sources use a variety of methods, both legal and illegal to acquire the technical knowledge required to develop the sophisticated hardware to conduct such operations as seen in our fictional scenario. To combat the proliferation of weapons, international agreements and treaties are in force to limit the spread of weapons, from conventional to chemical, biological and nuclear, as well as the hardware to deliver these weapons of mass destruction. The Missile Technology Control Regime (MTCR) is one such international agreement.

In April 1987, the G7 nations of Canada, West Germany, France, Italy, Japan, the United Kingdom, and the United States created the Missile Technology Control Regime, which drafted guidelines for the transfer of sensitive missile related hardware and technology. Currently thirty-three nations have agreed to the guidelines of the MTCR. The purpose of the MTCR is to "limit the risks of proliferation of weapons of mass destruction by controlling transfers that could make a contribution to delivery systems for such weapons." (1) These guidelines provide member nations a framework in which to develop national export policy within the laws of each individual nation. The guidelines and the annex provide the framework for a case-by-case consideration of transfers of items contained in the annex, while at the same time not impeding national space programs or international cooperation in space programs. (2)

The MTCR annex is the heart of the regime. It contains a list of twenty items that are to be considered controlled items and subject to export controls. These twenty items are grouped into two categories: Category I consists of the first two items which are considered the most sensitive and subject to a strong presumption of denial for transfer to foreign governments and entities; Category II consist of the remaining eighteen items and particular restraint will be exercised in considering transfers.

In considering transfers of MTCR items, the guidelines provide criteria to evaluate such transfers: (3)

* Concerns about the proliferation of weapons of mass destruction;

* The capabilities and objectives of the missile and space programs of the recipient state;

* The significance of the transfer in terms of the potential development of delivery systems (other than manned aircraft) for weapons of mass destruction;

* The assessment of the end-use of the transfers, including the relevant assurances of the recipient states;

* The applicability of relevant multilateral agreements.

The United States Government has adopted the MTCR guidelines and codified the requirement to apply export controls in the Arms Export Control Act (P.L. 90-629) Chapter 7, Control of Missiles and Missile Equipment or Technology. (4) The Arms Export Control Act (AECA) is the legal authority for the sale, lease, financing, and cooperative programs involving defense articles or services as found in the U.S. Munitions List. Controlled items under the MTCR are included in the munitions list and are subject to the same scrutiny as other defense articles. The AECA applies to direct commercial sale as well as foreign military sales and every effort is made to ensure that transfers of technology occur only in the national interest and in concert with U.S. foreign policy. However, there are times when technology is inadvertently released to countries in contradiction to foreign policy.

It is just such inadvertent and illegal releases of tools, materials and know-how that Colonel Craig McLane, Director Weapons Division, Defense Security Cooperation Agency, was referring to in his opening remarks to a recent gathering of specialists from program offices across all three services and other defense agencies, when he explained, "You are here because the Department of Defense has a problem, and we need your help to fix it."

Colonel McLane is heading DoD's effort to ensure foreign military sales (FMS) exports comply with the MTCR. The problem he refers to was highlighted by a 1999 Government Accounting Office report to the Chairman, Committee on International Relations, House of Representatives regarding how defense articles and technical information to be delivered under a letter of offer and acceptance are checked for missile technology. As its starting point, the report examined an FMS case which delivered all the machinery and supplies to equip a customer's co-production factory. Among the many lines of the case were entries for the delivery of tooling and quality assurance equipment. Unbeknownst to both the implementing agency and the Department of State, some of the seemingly innocuous items that were delivered under those lines were, in fact, desperately sought by agents of covert missile development programs. Specifically, they were an automated lathe-like machine for spinning forms out of fiberglass, and a high-power x-r ay for checking welds. These items are unclassified, non-sensitive, commercially available industrial equipment but, because they are not commonplace and it is not possible to build long range ballistic missiles without them, they are listed in the MTCR Annex. Unfortunately, the Department of State reviewers familiar with the Annex could not tell that these items were included in the case, while the implementing agency reviewers who were familiar with the case were not aware of the Amex.