US bureaucracy blocks arms deliveries to Ukraine

Ukraine desperately needs more weapons and ammunition to defeat the Russian invaders, but U.S. defense export regulations are proving to be a major obstacle.

The export of military goods from the United States is regulated 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 that includes firearms, ammunition, projectiles, 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 obtain approval before exporting them.

The Department of State’s Directorate of Defense Trade Controls (DDTC) interprets and enforces ITAR, and U.S. companies wishing to export must cooperate with the department. Organizations or individuals who violate the regulations face severe penalties.

Boeing was ordered to pay $51 million earlier this year for exporting goods to China and Russia in violation of ITAR and other regulations, the second-largest fine levied by the State Department, after a $79 million fine levied against BAE Systems in 2011. With such a high price tag, companies and individuals must be extra careful when selling defense-related equipment abroad—and many are deterred from doing so.

ITAR was passed by Congress in 1976 as part of the International Security Assistance and Arms Exports Control Act during the Cold War. The goal was to restrict arms exports to a key adversary during a period of conflict.

While these regulations seemed like a good idea at the time they were developed and kept ammunition from falling into Soviet hands, today they limit Ukraine’s chances of victory on the battlefield.

Designed for another era, they prevent allies, especially the U.S., from sending military aid to Ukraine, according to U.S. defense executives who asked not to be identified. If Washington really wants to help Ukraine win this war for good, it must be willing to take on higher levels of risk when it comes to exporting munitions and battlefield technology.

Another tool the U.S. government uses to regulate the export of American technologies and goods is the Export Administration Regulations (EAR) of the U.S. Department of Commerce’s Bureau of Industry and Security.

They regulate the export and re-export of certain goods, software and technology, for which companies are required to obtain export licenses.

The restrictions imposed by the EAR and ITAR effectively prevent U.S. products and technology from falling into the hands of dishonest foreign entities, but they need to be updated and modernized.

If helping Ukraine fend off Russia isn’t enough of an incentive, there’s also an economic argument. A 2014 study by the U.S. Department of Commerce’s Bureau of Industry and Security found that the U.S. space industry alone lost an estimated $988 billion to $2 billion in foreign sales between 2009 and 2012 because of export controls. That figure is likely to be much higher now.

Given that the export review process can take a long time and companies often complain about ambiguity about the required steps, the United States should consider options for expediting the review to help countries with active wars.

Although the U.S. Congress enacted several major reforms to ITAR as recently as 2013, it was time for a fresh overhaul. Some experts have suggested that Congress should commission a classified, independent review of the entire process to identify ways to make it more practical in the face of today’s challenges.

It is clear that export regulations have a negative impact on the battlefield, and the U.S. should rise to the challenge and update the regulations now. It is important to act urgently to aid and support our Ukrainian allies in their fight for the survival of their country.

Krista Viksnins is a senior program officer in the Transatlantic Defense and Security Program at the Center for European Policy Analysis. She holds a J.D. from the University of St. Thomas School of Law and a BA in Political Science and Spanish from St. Olaf College. She is also a licensed attorney.

The Edge of Europe is CEPA’s online journal covering key foreign policy issues in Europe and North America. All opinions are the author’s own and do not necessarily reflect the position or views of the institutions he represents or the Centre for European Policy Analysis.