Fred Thompson

Mr. THOMPSON

Mr. THOMPSON. Will the Senator agree the issue is whether or not it is good policy to require the Secretary to cut off an end user, if postshipment verification is not allowed, but would give the Secretary discretion to cut off or not cut off a country that denies postshipment verification? It seems that is the issue. The point my friend from Arizona was making was in some cases you have a country, such as China, where we have a situation with them where we request postshipment verifications for various sites, and they agree to a few and remain silent on the rest. They never say no; they just never say yes. This is a country decision. Under the legislation, the Secretary does have the discretion, and I can see an argument for giving him discretion, but I can also see a very good argument, and more persuasive, that as it makes good policy sense to require the Secretary to cut off, as a matter of national policy, an end user if they behave in such a way, that the same logic would make it good policy to cut off a country if they are, in fact, calling the shots, as is often the case.

Mr. THOMPSON. Madam President, let me make one thing clear. Those of us who are concerned about certain provisions of this legislation are not denying anyone the right to export. Those of us who have concerns about the direction in which we are going are not advocating that we in any way lessen the overall quantity of our exports in this country. The Senator from Utah very effectively constructed an elaborate straw man and has now beaten him to pieces. We cannot take ourselves out of the world market. We cannot allow our exporters, the people who are producing high technology in this country, to be frozen out of the market and become insular. No one is advocating that. That is not the case now, and that would not be the case of every amendment we thought would be a good one and which passed. The people who are advocating this legislation tell us--I am not sure these figures are precisely accurate--that something like 98 percent of all of these export applications are approved. It is not as if we are holding up anything, except in rare circumstances where there are national security considerations. The problem is not that our exporters are being frozen out of the market or that in some way they are victims of 19th century thinking; it is that they don't want to have to wait a few days to get a license. We are not saying we need to shut down computer exports or even supercomputer exports. We are just saying that before they go out the door, somebody ought to take a look at it and make sure it is a good idea in terms of the nature of the equipment that is being sent, in terms of the end user, or in terms of the potential use of the entity to which it is being shipped. This is not a matter of export versus nonexport or export opposition. As I say, the overwhelming number of applications have been approved, or will be approved, under any circumstance. The question is, Does the Department of Commerce predetermine broad categories of things that might prove to be dangerous without even going through a licensing process where somebody can take a look at it? That is what this is all about. We heard yesterday in broad categories of items that I think the average time it took before the approval was made was 13 days. I have read otherwise where there are categories of items that required 40 days for the process to go through. I am sure the exporters would rather not wait 24 hours. But we are talking about matters of national security. Why do we even have an export law? If in fact everything is out the door, the genie is totally out of the bottle, and we don't even need licenses for anything to anybody, why do we still restrict exports to Iraq? Why do we still restrict exports to Iran and Libya and North Korea? Wouldn't that be the logical conclusion of the position that everything is out there now and no one can restrict anything? Our policy has been, and still is, and will be I think implicit based on the supposition and the assumption that in some ways, for some things, to some end users, we should and we must and we can exercise some degree of control. The question is, Where do you draw the line? You don't do it foolishly. You don't try to control things that are uncontrollable. You don't try to control things to your friends the way you would someone who is a potential enemy. But surely we are not saying that there is no degree of control, and no degree of supervision, where we ought to have somebody in our Government take a look at it for national security purposes. Otherwise, why have any restrictions to Saddam Hussein if he can go next door and get the same thing from somebody else? The answer is because we know that is not true. What this is all about is we have some exporters who are in business and who need to be in business. We are all for them. They don't want to have to go through a licensing process. That is what this is all about. I think it is true that the key to our success in the future is not going to be totally reliant on some kind of export control. The more important part is going to be our ability, as they say in the business, to run faster. We must keep our technology at a level that outstrips all the rest. We should stay ahead. In order to do that, we need vibrant industries. I agree with all of that. But it doesn't totally answer the question. The rest of the question is whether or not we are doing what we need to do to help others run faster in significant ways. Pick a country of concern--a country that is on the upswing economically, a country that is rapidly building up their military, a country that has already been known to use our technology for its military purposes. Is it wise policy to have no consideration for how rapidly they may be able to use our technology for their purposes? I am not saying that is an easy question. Do you slow them down by an hour or do you slow them down by a year? Those are important answers that I don't have. It would depend on the circumstances that would hopefully be considered by our Government when a license is on the table and people are sitting around the table asking, Is this a good idea or not? Under this bill, if they are foreign available as determined by a technician over in the Department of Commerce, or if they are mass- marketed under the same determination, you don't have to go through that process; I don't have to wait for 13 days, or the 40 days, or in some cases longer, I am sure, but an average of numbers that we have used here. That is the question. It is true that nowadays you can cluster computers to boost the MTOPS power. I, for one, have changed my view somewhat about the efficacy of regulating, controlling computers based on MTOPS. The GAO report also said there are possible other ways of controlling computing power that might be questionable, that have never been explored, and that have never been tried. And goodness knows, there is no one outside of Government who has any motivation to explore or try those other methods. They also demonstrated that while you can cluster computers to reach high MTOPS levels, those clustered computers cannot be used in the same way that another, shall we say, unclustered computer could be used with the same MTOPS level. If you want to use a clustered computer situation for research, or something like that, it is perfectly suitable. If you want to use it for military purposes, it is much more questionable. So these are complex issues that have complex answers. And I don't think anybody has all the answers. But we do know that technology is expanding, it is more accessible. That is not the issue; everyone understands that. But I hope everything we are doing--and the purpose of this legislation; it is in the bill --is premised on the notion that we can, by legislation, do something to assist in curbing the proliferation of weapons of mass destruction. That is what this is all about. If we do not believe we can do that, if technology is such and the world has changed as such that we can have no control over anything at any time for any period of appreciable time, then we might as well do away with the legislation altogether. Our legislation, our policy, is premised on the contrary. So it is not black and white. It is: Where is the balance? And who decides? That is the issue. Where is the balance between, we can't do anything, so let's eat, drink, and be happy, and make our money while we are arming our adversaries, or that we need to build a wall around the country and not give anything out? Where is the balance? And who decides? Well, we have decided, so far, in this country that the people whose business it is to promote commerce essentially decide. In some ways, in some instances, they have to get the approval of or consult with others, but in many important respects we have decided--I think mistakenly in this legislation and as a matter of policy--that the Department of Commerce makes these important national security decisions. Now we are going to be deciding, when we pass this bill, that the Department of Commerce will not even get to take a look at things that have been deemed to be mass marketed or foreign available. So be it. But let's not fool ourselves into thinking that this is an all-or- nothing situation or that someone is suggesting that we not export computers or that we isolate ourselves in that regard or that we blind ourselves to the technology revolution. That is not the case at all. We are just trying to reach some kind of a reasonable, measured way in which we can do what is doable. My basic problem with all this is that we do not know to what extent we may be making a mistake. We do not know to what extent some of this is controllable, as the GAO has pointed out. The GAO listed in its report, I think, about a dozen potential ways supercomputers can be limited in ways that other people did not have them and also pointed out that they have not been tried, they have not been attempted. Our law required, in the 1998 Defense authorization bill, that there be a national security assessment, as we were in the process of totally decontrolling computers. I would not cite the Clinton administration as having good policy in that regard, but I must confess, this administration is picking up where the Clinton administration left off in that respect. The law required that we have a national security assessment. It has never been done. So I have one opinion and my colleagues--a clear majority of them-- have another opinion about the effect of what we are doing with this legislation, but the fact of the matter is, nobody knows. And that concerns me. It concerns me greatly because it is going to be some time now before we know the effect of this. We should have been studying this issue. We should have had a blue ribbon commission. We should have had a group of objective people who are unaffiliated with people who are in the export business--which is hard to come by on this subject, by the way--to make an objective assessment. I am hoping before this debate is over with we can, at least after the fact, move in that direction. I may be wrong about some of my concerns, but I can afford to be wrong. As to those who say there is no problem, we cannot afford for them to be wrong because that would mean matters of national security would be implicated. So I am hopeful we will be able to move in that direction, the direction of really doing an objective assessment as to where this balance is and to who ought to be making the decisions. I yield the floor.

Mr. THOMPSON. I thank the Chair. Mr. President, I have listened to the distinguished majority whip this morning expressing concern that we move on with this bill. I think we can do that. We had a good discussion yesterday. We had a vote on one amendment that was a pretty definitive vote. We all get to the point where we can count votes around here, and we know which way the die is cast as far as this bill is concerned. The administration supports this bill. Apparently, the administration is going to oppose any and all amendments. That is unfortunate. That is, frankly, shortsighted, but that is the way it is. I do not think we want to belabor the matter any more than necessary. I must say, we have had some very good discussions this morning on both sides of export administration in this country. We are still talking, and we may be able to come together on some things that will help the bill and help some of us who have concerns about this bill. I know Senator Kyl from Arizona is on his way to the Chamber and would like to make an opening statement, and then we will move on from there and see where we are. Until Senator Kyl gets here, I will reiterate some of the bases for our concern. We make no apologies for bringing these amendments up regardless of the fact we have an appropriations bill pending. As important as these appropriations bills are, the national security of this country is even more important. That is what we are dealing with here, the issue of national security. We all have the same thing as our ultimate goal for the protection of this country, but we have some quite distinct and different ideas about how to get there. Export administration legislation in this country traditionally has been designed not to facilitate business but to help protect the national security interests of this country. If one looks at the purpose that is set out in this legislation, it does not say anything about expediting business. No one wants to bog these exports down, but the fact of the matter is, they are not being bogged down. It was said yesterday for a broad category of items, the average processing time is 13 days, I believe-- 13 days. What it does set out and the purpose for this legislation, as similar legislation in the past has set out, is that we want to make sure we are not assisting the proliferation of weapons of mass destruction. We want to make sure that in our haste to do business-- there is no greater freetrader in this body than I am--and to export that we do not make mistakes. That is what the export administration legislation is all about. We are living in a different time than the last time we addressed this issue. We are living in a world where we do not have the old Soviet Union and the massive European assault that we all feared looming over our heads. But what we do have is many different threats, more insidious threats in many respects and more dangerous in many respects because those threats are in the hands of totally irresponsible individuals in other parts of the world. We get these reports from Presidential commissions. We get these reports from our intelligence community warning us, time and time again, that it is growing, that it is based on technology, that the threats are great--nuclear, biological, chemical threats--and the ability to deliver those threats to our soil is growing year by year. Even a country such as North Korea, which is starving it's people to death, can pose a mortal threat to major American cities, having already launched a three-stage rocket over Japan just to demonstrate what they can do, while a million people are starving in North Korea. That is the nature of the growing threat based on technology. Our intelligence agencies point out to us that a lot of this technology is derived from countries such as Russia and China, which our intelligence agencies still say are massive proliferators of weapons of mass destruction. Here we are getting ready to pass legislation to make exports of dual-use items, which can possibly be used for military purposes, to countries such as Russia and China easier. When Mr. Cox and others on the commission tell us that the Chinese, for example, are diverting products imported for civilian reasons to military purposes, and they also tell us that part of the problem has been created by our own laxity in our export laws, I do not know how much more definitive the record needs to be for us to be concerned, when we sit down to write an export administration bill, that we not make any significant mistakes in the bill with regard to contributing to the growing threat to the national security of this country. There are great commercial interests involved. There is substantial commercial interest. They are substantially involved in the political process, but in terms of the trade welfare to this country, they constitute about 3 percent of our total exports. The exports to these controlled countries constitute about 3 percent of our total exports; 90-some-odd percent of those export applications to those countries are approved, so we are talking about a small fraction of 3 percent of our exports that we are dealing with. Some make it sound as if we are trying to shut down exports or we are trying to close the borders. We are not. It is important, and it is growing. The interest here is not what can happen today. The interest is the potential, and the potential is great, but therein lies the potential problem. Even though the technological genie is somewhat out of the bottle, to be sure, but not totally out of the bottle or we still would not be trying to keep things out of the hands of Saddam Hussein, Iran, and North Korea, we implicitly acknowledge some control is doable. But let's just say for the sake of argument the genie is out of the bottle and eventually everybody is going to get everything. Does it not benefit our country somewhat to say with regard to these most sensitive items we need to slow certain countries down while we are trying to come together on a consensus on things such as national missile defense? We are expending great political capital in this country and will be spending, I think, great monetary capital, as it were, on a missile defense system. I think that is an appropriate thing to do. We are willing to go to our European friends, Russia, China, and have a debate here based upon this threat about which I am talking. Does it make sense when we are so concerned about this threat, and we do not have a missile defense system off the drawing board yet, for us to be hustling to make sure that potential adversaries a few years down the road are caught up to date, technologically, to be even with us or to improve themselves to a point where they can be competitive with us? Does it make sense for us to be helter-skelter assisting as much as we can while we are in this stage over here and trying to defend ourselves against these same technological challenges? That is what this is all about. We may have appropriations bills we want to get passed and we may say: We had a big vote yesterday and the die is cast; get away, son, you bother me. It is not going to be quite that easy. This issue is not going to go away. I understand those of us who comprise the committees that have to do with intelligence and national defense matters form a distinct minority. When we first started debating this issue, I was chairman of the Governmental Affairs Committee that has jurisdiction over matters of proliferation, as well as other things. The chairman of the Armed Services Committee, the chairman of the Intelligence Committee, and the chairman of the Foreign Relations Committee, all of us were as one in expressing the concerns I have laid out today. We still have those concerns, although we are ranking members now instead of chairmen of the various committees, but we also recognize we are in a distinct minority. We have been unsuccessful in persuading enough of our colleagues these concerns are so great we ought to at least have some amendments to address some of these concerns. I am still hopeful. We have had some good discussions recently, as discussions tend to come about once we are considering an issue. With regard to things like a Presidential commission, for example, that is an idea that Senator Shelby, who was chairman of the Intelligence Committee, now ranking member, has espoused for a long time and one that we have all supported at one time or another. The idea is we have a blue ribbon commission established. We know some of these commissions do a good job and some do not, but we had such a good experience with the Rumsfeld commission, a bipartisan commission made up of experts, some from a more liberal persuasion, some more conservative, but people of unimpeachable expertise who were appointed and took a look at the kinds of issues I have been talking about this morning, why can't we do something along those lines to answer some of these questions we have posed, such as what effect are our export policies having on national security? As I talk about it, I am very well aware the distinguished senior Senator from West Virginia, who now presides, has been a leader on this very issue and he is responsible for a commission that is doing some good things in this same area but perhaps targeted a little bit more on answering some of these questions. The problem, as I see it, is not that I have the answers that we are definitely doing something that is going to be hurting national security or it is not that my colleagues on the other side of this issue have the answers that they are definitely sure we are not doing anything that is going to be harming national security. I am afraid the point is, we do not really know. We do not know the effect of what we are doing. We do not really know, now that we are about to pass this bill, what the effect of this bill is going to be or what it might look like a year from now. As a part of the Defense appropriations bill in 1998, there was a provision which acknowledged, first of all, that there was a massive decontrolling of our supercomputers going on in the Clinton administration. They changed the MTOPS level rapidly so more and more supercomputers could be exported. There has been a growing concensus almost, I would say, among a lot of the people who follow these matters in the country that perhaps MTOPS is not the best way to decide what should be controlled in terms of these supercomputers. Maybe we need to look at something else. We did not really look at something else. We decontrolled, and now what we are doing in this legislation, in terms of MTOPS, is totally decontrolling and doing away with it. So it is an extension of the Clinton policy. Also in that 1998 legislation, there is a provision that says, as we do that we must do a national security assessment of the effect of doing this. That was never done. It has never been done. It is bad enough we are not following our own laws, but it is doubly bad we do not know the answer. So we are having some discussions now about can we not get together and come up with an independent assessment, over a period of time, as to what the effect of this might be? Another issue we are discussing is the so-called deemed export rules. As I am sure the Presiding Officer knows, we have a system in this country that basically says if you export a certain item or information to another country, you need a license for certain kinds of things. Also, if you give that same information to a foreign student, a foreign national, who is over here working in, say, one of our laboratories, or one of our businesses, if you give him that same information, that is the equivalent, potentially, of exporting the matter. It is called a deemed export, and we need to look at that carefully also. We had hearings in the Governmental Affairs Committee a year or so ago, and we found out that the law is being universally ignored by our laboratories. Private business is doing a much better job of complying with the deemed export rules and seeking licenses for these transfers of information than is the Government. Of course, they have a proprietary interest in doing so, but for whatever reason they are doing a much better job. Our laboratories have done a very poor job and now, of course, we know that valuable information has been taken, illegally and improperly, from our laboratories, which is the repository of some of the most sensitive information, if not the most sensitive information, our country possesses. We need to do something about that. This bill does not address that. These are as much exports or potential exports as some of the goods flying to another country. My understanding is the administration has expressed some concern that this is a complicated subject which they have not had an opportunity to address yet and would prefer to have the opportunity to address, and I understand that. A lot has been laid on their plate in a short period of time. We came to them with this whole export business, this whole overhaul issue, when they were still trying to get draperies in their office. Getting any modern President's team together now is a long, drawn out process. Some say it will be 12, 14, or 16 months before this administration gets its team together. We are laying this highly technical stuff on them at a time when many of the important departments do not have their team together. I prefer to put this off until later, until they have had the opportunity to get their team together, but they have seen fit to agree to have this go forward. It makes a certain amount of sense. We do not want to discourage foreign students from coming to the United States. It is important for many different reasons. We do not want to close our borders. With as many problems as we have had with the People's Republic of China over the last few years, they have 54,000 students here now. We do not want to reverse that process. Many make valuable contributions to us and what we are doing. Many choose to stay here. However, in the process we have to learn to protect ourselves. Because we have peace and prosperity today does not mean we will have it forever. I just finished reading a book called ``While America Sleeps'' in which the Kagans were drawing a parallel between the United States today and England after World War I. This book is based on Winston Churchill's ``While England Slept.'' They talk about when a country wins a war or skirmish, the tendency is to allow your military to go down, to have a higher threshold for engagement elsewhere. You want a peace dividend. You want to come back home and enjoy the peace dividend and forget about the unpleasantness. By doing that, you encourage problems here, there, around the world. They are very small at first, and they grow into major problems that ultimately a democracy has to address. We do not want to do that. That is what we are trying to avoid. These are a couple of areas on which I think we might still have come together, even at this date. I am hopeful of that. Again, I reiterate, this is not foolish business we are engaged in. These are not dilatory tactics. These are not things to get on with while we wait to get on with the more important business of spending money. It is not about money but about the national security of this country. I do not care if we have to have 95-5 votes on some of these issues. Time will tell the correctness of the various positions. Some Members believe it is very important to lay them on the table, require deliberate consideration, and see whether or not even at this stage of the game we cannot come together at least on some things that might make this a better bill and ensure the enhanced security of this country. I yield the floor.

Mr. THOMPSON

Mr. THOMPSON. Mr. President, the scenario that has been outlined is a probability. That is something for which we can strive. We have accomplished some things in this down time we have had today. We are talking about a couple of amendments, and we are talking about a couple of letters, all of which will need to be finally agreed upon among the parties. I do not think that would be any problem. I do not anticipate other amendments at this time, but I say to my colleagues who might be listening, if anyone has any amendments, they should come forth immediately and announce them. Otherwise, I would anticipate tomorrow morning we would know where we stand with regard to the blue ribbon commission issue and would tomorrow morning be able to enter into some sort of unanimous consent agreement. There being no further amendments other than our agreeing to the language of the letters and to the other amendments, we will be able to proceed on to final passage.

Mr. THOMPSON. I will be happy to.

Mr. THOMPSON. I certainly will, and I express appreciation to the leadership for allowing us to do this unfettered and unhassled because I know the Senator wants to finish and move on to other things. We have accomplished a couple of different things in the first day. We have had an opportunity to say our piece on our side to express our concern with some of the provisions. We have also had an opportunity to have a vote. It does not take a genius to count that vote. After the vote occurred, the proponents of this legislation, in a very reasonable fashion, suggested we get together and see if some of the concerns we expressed could not be addressed. That is what good debate and good interchange is all about: actually listening to each other and learning something from each other and trying to see whether or not we could address some issues. Those thoughts have been expressed in a way that had not been heard before. All of this happened, and that is a good thing. We are going to wind up with a better product than we otherwise would have. So, yes, I concur with the Senator. It is time to do what we can do and then move on. I add we still need to be diligent and make sure we agree on the language, as we have orally, and hopefully wrap this thing up tomorrow.

Mr. THOMPSON

Mr. THOMPSON. I would appreciate a clarification on comparing the Presidential set-aside on foreign availability with the enhanced controls; the former section, section 212, and enhanced controls is under 201. I will ask a question in a moment. I know the Senator knows that under 212, the Presidential set-aside, if he determines that failing to control an item would constitute a threat to the national security, the President can set aside the Secretary's determination of foreign availability. Then it requires the President to pursue negotiations, as the Senator has described. It requires the President to notify Congress that he has begun such negotiations. The President shall review a determination at least every 6 months and notify the committees. Then, 18 months after the date, the determination is made; if the President has been unable to achieve an agreement to eliminate foreign availability with these other countries he is negotiating with within the 18 months, then the set-aside is lifted. But when you come over here to enhanced controls, it seems to give the President broad authority to lift the application of provisions of, in this case, foreign availability. I take it from what the Senator said a moment ago he thinks with enhanced controls the President would still be required to enter into the negotiations with foreign countries, for example. And, if so, which of these other provisions--the notifying Congress--presumably the cutoff would not apply, the 18-month cutoff. I am a little curious, if the President has enhanced controls, you would think that would obviate all of these other reporting conditions and negotiation requirements and things of that nature because that 18- month requirement certainly would be obviated, and it would make the requirements under the set-aside unnecessary. Will the Senator comment or give me his view on that? There is a lot of legislation here. I have referred to it once. We will have an opportunity to discuss it.

Mr. THOMPSON. Will the Senator yield for a moment?

Mr. THOMPSON. I just noticed when the Senator was reading under enhanced control that it refers to control 204, incorporated parts, 211, which has to do with the determination of foreign availability along with mass marketing. But it does not refer to 212. Enhanced control does not refer to 212; it refers to 211, which has to do with making the determination of foreign availability, but it does not refer to 212, which has to do with Presidential set-aside. The first question would be, Do in fact the enhanced controls override 212?

Mr. THOMPSON. I see what the Senator is saying. If you are assuming that the determination made by the Secretary of foreign availability and the President's decision to set that aside were made simultaneously, I am wondering whether or not there could be a situation where that would not be the case, that a determination could be made of foreign availability by the Secretary. The President doesn't have anything to do with that. Then at a later date the President makes a determination that this is not working out very well and he wants to use his enhanced authority. But enhanced authority doesn't refer to 212, which gives him the right to set aside which foreign availability would subsume.

Mr. THOMPSON. That gets to my second point, if I may. I go back to my original question. If that is the case, then why is the section under 212--the set-aside that has to do with the President's actions in the case of set-aside, which has to do with pursuing negotiations with foreign governments, notifying Congress, periodic review, exploration of Presidential set-aside --if the President did in fact decide to use his enhanced control authority, why would any of that be applicable? Certainly the exploration of the Presidential set-aside would not be applicable. Or would it?

Mr. THOMPSON. Mr. President, I would like to address S. 149. I believe my colleagues who have spoken are correct in that they have substantial support for this legislation. I do not doubt they have a majority of the Democrats and a majority of the Republicans. I do not doubt they have the support of the administration. My understanding was that the President made a campaign statement or commitment with regard to this issue during the last campaign. President Clinton made the same commitment during his campaign for President. The President had a group of high-tech executives to the White House, just as President Clinton did, to promote this sort of legislation. My colleagues are correct in that the President now supports essentially a continuation of the Clinton policy with regard to the liberalization or loosening of our export controls law. I disagreed with it when President Clinton was President. I disagree with it now. While we need an Export Administration Act and while we need to take into consideration commercial circumstances and changes in the world, I think the balance between our national security interests and our commerce interests is not there. This is not really a bill, as I think about it, that is supposed to balance as such. It is a bill that has very specific purposes. It is consistent with our export administration process that we have had for decades in this country. It is based on the notion that there are some items we need to try to keep out of the hands of some people for as long as we can. The most ardent proponents of liberalized trade restrictions, of course, would acknowledge that. We have the so-called rogue nations, and so forth, to which, we all acknowledge, we should not let any of this high-tech stuff get through. If we were really in a world where the technology genie were totally out of the bottle, I suppose we would not bother ever making the distinctions between really bad countries and pretty bad countries and friends because it would be out there for all to have. This is based on the proposition that is not the case, that there are some things controllable and that we should try to keep these things out of the hands of some entities and some countries for as long as we can. When you look at the purpose of the act we are dealing with today, I think it correctly states that the purpose is about national security export controls, it is not about enhancing exports. In fact, you might say it is kind of anti-export. I think the norm is and should be that this country is for free trade. I certainly have tried to be one of the leaders in that area. I think the President ought to have trade promotion authority. I think we need to do more in that area. I think it is the basis for a large segment of our economic security and prosperity in this country. We had a debate with regard to a section of NAFTA recently. I think most of us are very committed to the process. But the fact that we have an export administration process and an Export Administration Act acknowledges that, be that as it may, there are some things that bring in extremely serious national security considerations. I refer to S. 149. It says the purposes of this act are to restrict the export of items that would contribute to the military potential of countries so as to prove detrimental to the national security of the United States. It further says the purpose is to stem the proliferation of weapons of mass destruction. It doesn't really talk about a balance of those grave and primary considerations that we all must acknowledge are, more than anything else, against some commercial considerations. Here we are talking about I think our total exports to these control countries, which are about 3 percent of our exports. So we are talking about a small fraction--3 percent of our exports as balanced against what I just described in the act. I am not for some kind of equipoise, or some kind of a balance, when it comes to these things. We shouldn't control things that are uncontrollable. We shouldn't be foolish about it. But we ought to have a very careful process that is not weighted or prejudiced in any way by those whose interest it is to get things out the door, whose interest is to export, whose interest is to come to the White House and come to the Congress and lobby on behalf of more and more exports for economic reasons. You don't have the average man on the street with a lobbying team coming up here saying be very, very careful about how you liberalize our export control laws because we are concerned about what we read about what is going on in the world in terms of proliferation. The world has changed a lot. We should look at these matters from time to time to see whether or not we are operating in the right century. We don't have the old Soviet Union anymore. We don't have the threat that posed. But in its place are several new threats which, in many cases, are more dangerous than the ones we had. We know, for example, that with the development of technology, weapons of mass destruction can now kill many, many more people than they otherwise could. There are ways of delivering weapons of mass destruction that did not exist a short time ago to countries such as the United States. We have biological weapons that stagger the imagination with the description of the devastation that just a small amount of it can wreak, again, accompanying that with the means to deliver them, the means that did not exist a short time ago. That is the other side of the technological coin, the technology that has helped us in so many ways and has made the world a better place. That is the other side of that coin. It is real. Of course, the world has changed in another way. My colleagues are correct when they say that more of this technology is available around the world. In some cases, to some extent perhaps, there is nothing we can do about it. But in some cases, to some extent, there is something we can do about it. Therein lies what we are trying to deal with here with regard to our export administration policy; that is, being very careful in making sure, with regard to the things we can have some control over, even if it is just to slow down the bad actors that wish our country and our national security ill, that it is a good thing to do. If we are not willing and committed to doing that, regardless of what it does to trade in a certain segment of exports, then we should not have any export policy at all; we should not have any export restrictions at all. I do not think we are there. I do not think that anyone would advocate that. But it concerns me to hear that my colleagues think by passing this bill we are in some way enhancing our security. We are not. You can make a case that it is out of balance the other way, that we are trying to control things that are uncontrollable, and it is hurting our exports to the extent we need a new balance. I disagree with that strongly, but you can make that case. But I do not think you can have your cake and eat it, too. I do not think you can liberalize trade so people do not have to have licenses anymore for some of this dangerous stuff while at the same time claiming you are enhancing national security. It is just not the case. And it is not as if I have the answer as to where to draw the line. It is not as if my colleagues have the answer as to where to draw the line. Reasonable export controls that do not do any more harm than is necessary but protect us to the extent possible: It is very difficult to draw that line. What is important is that we have a process because that line has to be drawn every day. There are thousands of applications--15,000 to 20,000 applications--for exports on an annual basis. We must have a very carefully thought-out process where responsible people, in all objectivity, with requisite expertise, have an opportunity to pass on these things and make those judgments. That is what this is all about: whether or not we are setting up the right responsible framework, not to be so irresponsible that we shut things down, but, on the other hand, that we recognize that the world is a much more dangerous place, that countries have the ability to harm us and harm our allies, which would directly involve us immediately, more so than ever before, and that we must do what is reasonably necessary to keep these things out of the hands--as the world's leading manufacturer in the creative genius behind most of the advanced technology that is going on in the world in so many areas now, that we have a stewardship, we have a responsibility to use that in a proper and correct way. As I said, it may be difficult to draw that line, but we must have a procedure that errs, if it is to err, on the side of national security. Because even the bill, as drafted, points out that this is the purpose of the Export Administration Act. This is the fundamental purpose of an Export Administration Act. So does this act take into consideration sufficiently the matters of national security? And does it take into consideration sufficiently the matters of commerce and exports? If we are going to talk about balance, let's talk for a minute about the side where we have our concern, the things that we are trying to address. In many different ways this is just a part of an overall policy of recognizing we live in a more dangerous world. But while realizing that genie is out of the bottle, we are trying to--through our policies, through our diplomacy, and through our policies--mitigate somewhat the danger that we see. As I have stated, because of the proliferation of weapons of mass destruction, the world is a more dangerous place in many respects than ever before. Numerous reports have confirmed that a ballistic missile strike on the United States is not a distant but an imminent threat. The Rumsfeld report, published in July of 1998, concluded that emerging ballistic missile powers such as Iran and North Korea could strike the United States within 5 years of deciding to acquire missile capability. Shortly after that, North Korea surprised our intelligence agencies by successfully launching a three-stage rocket over Japan, essentially confirming the Rumsfeld conclusions. Certainly they, along with Iraq, Syria, Libya, and others, can strike our allies and our troops stationed abroad today. In September of 1999, the national intelligence estimate of the ballistic missile threat concluded that the United States would ``most likely'' face ICBM threats from Russia, China, North Korea, and possibly from Iran and Iraq over the next 15 years, and that North Korea could deliver a light payload sufficient for biological or chemical weapons to the United States right now. It has also said that some rogue states may have some ICBMs much sooner than previously thought, and those missiles would be more sophisticated and dangerous than previously estimated. The classified briefings are even more disconcerting. Perhaps the most alarming report from these commissions and intelligence sources is that, despite the urgency of this problem, the United States' lax export controls are contributing to the proliferation of weapons of mass destruction by global bad actors--our own export policies. The Cox commission concluded that U.S. export control policies have facilitated, rather than impeded, China's ability to acquire military- useful technology. The Rumsfeld commission has said the U.S. export control policies make it a major, albeit unintentional, contributor to the proliferation of ballistic missiles and associated weapons of mass destruction. There you have it. I do not know how it can be stated much plainer than that and with more authority than that; that we have a serious problem on our hands and that our own policies are contributing to that problem. Nowhere is it more clear than in the case of China, which is really the country that stands to benefit from changes to our export control laws the most, and, ironically, is also the country of greatest proliferation concern. China was described by the Rumsfeld commission as a significant proliferator of ballistic missiles, weapons of mass destruction, and enabling technologies. The PRC has sold missiles to Pakistan, missile parts to Libya, cruise missiles to Iran, and shared sensitive technologies with North Korea. All these actions have occurred despite the PRC's public assurances and commitments to several international proliferation regimes. Within the last few days, this Government sanctioned a Chinese company again for transferring missile components to Pakistan. Even more disturbing is that many of the items that China is proliferating to rogue nations around the world may have been legally acquired from the United States. The Cox commission notes that China has deliberately taken advantage of our lax export enforcement policies to further its proliferation efforts. China has illegally diverted or misused many sensitive dual-use technologies or items to further their military modernization. In January of 2000, the licensing threshold for high-performance computers was 2,000 MTOPS. In January of 2001, the licensing threshold was 75,000 MTOPS, a fortyfold increase in a 12-month period. (Mr. NELSON of Nebraska assumed the chair.)

Mr. THOMPSON. As the Cox committee points out, no threat assessment was ever conducted. As we have seen the rapid decontrol of supercomputers in this country to countries such as China, under the notion that, well, MTOP is not a valid criteria anymore and they will get it from somebody else anyway, the defense authorization bill in 1998 required that if we are going to do this rapid decontrol of our computers, that we do a national security assessment as a part of that, because the real bottom line is, we don't know what the effects of this rapid decontrol are. We don't know what the significance to national security is. We operated for a long time under the notion that it was very important--and the Cox committee will bear this out--to try to keep the supercomputers at a certain level out of the hands of Russia and China and countries such as that because they use them for nuclear simulation, their stockpile enhancement programs, things of that nature. We have totally changed our view about that based on no study, based on anecdotal comments by people who come and testify before these committees who have a direct or indirect interest in companies or represent companies that are interested in exporting in many cases--not all of them, but many--time after time. We have not really had any in-depth study or analysis by this Government as to what the effect of this substantial change in our policy is to our national security. I am not saying I know the answer. I rest assured that no one else, even in this body, has the answer. It is extremely complex, but it is extremely important. I know of no other change of that importance in that short period of time that has undergone less assessment. That is one of the things we should address. The PRC diverted and used these American supercomputers to improve their nuclear weapons. The Cox commission notes that in 1992, U.S. satellite manufacturers transferred missile design information to the PRC without obtaining the legally required license, and China used that information to improve the reliability of its rockets. We are all familiar with the Hughes-Loral problem. I noticed the report in the Wall Street Journal the other day that Loral apparently is about to cut a deal with the State Department and Justice to pay a fine and still be allowed to go ahead and launch Chinese rockets in the future, going back to their business. I will be interested in comparing the amount of that civil fine with the profit they make over the subsequent launches that they have in their deals with the Chinese. In 1993, China diverted six high-precision machine tools it obtained from McDonnell-Douglas and used them to manufacture military aircraft and cruise missile components. Just months ago we learned that Chinese technicians were installing fiber optic cable for Iraqi air defense in violation of U.N. sanctions. This fiber optic system is based on U.S. technology sold to China in the mid-1990s. According to published reports, we have discovered twice that companies in China were assisting Saddam Hussein with regard to his antiaircraft capability, which is what this fiber optic cable is used for, in order to help him shoot down our aircraft in the no-fly zone. There have been over 300 incidents where Saddam's troops have shot at our aircraft over that no-fly zone. I hope and pray they never hit one. I hope and pray that if they do, we don't discover that the technology used to shoot that airplane down did not originally emanate from the United States of America. I would not want to be the one to try to tell the mother of that pilot who was shot down: Ma'am, we are sorry about your son, but they probably could have gotten this ability from someone else if we hadn't given it to them. The Cox commission informs us that China pursues a deliberate policy of using commercial contacts to advance its efforts to obtain U.S. military technology. The commission states that China uses access to its markets to induce U.S. businesses to provide military-related technology and to lobby on behalf of liberalized export standards, a policy that has had significant success. We see from the Rumsfeld report, the Deutch commission, the biennial CIA reports, the nature of this threat and the fact that it is based on technology, technology in some cases where we are certainly the leader. We know that a lot of this proliferation activity from these rogue nations, a lot of their assistance comes from China. We claim we need a missile defense system. I believe we do because of the threats these rogue nations present to us. They, in turn, are getting their capability in significant part from countries such as China and Russia. We simultaneously, with all of that liberalizing of our export laws, make it easier to sell high tech items and equipment to China and Russia. That does not make sense. Where is the balance? What do we balance that threat against? What is the concern--that our export licensing procedure is too onerous? It is not like we are stopping these exports. As was said, 99 percent of them are approved. It is just the ones that are disapproved that are really important, important to our national security. It is not like we are trying to stop a great many exports because we are not. We are trying to have a procedure where we are more likely to not let something important slip through the cracks. Let's be clear about how much business is at stake. The total value of goods subject to export controls in 1998 was approximately $20 billion, less than 3 percent of U.S. exports. The fact that an item is controlled does not mean that it can't be exported. It only means that it has to go through a review process. The overwhelming majority of them are approved. But what this legislation does is take certain categories, incorporated parts, mass marketing, foreign availability, and says, with regard to those items, with regard to those matters, if someone within the bowels of the Department of Commerce essentially decides that they fit into these categories, you don't have to have a license at all. You don't have to go through that process. It decontrols those matters and takes them outside of the regulatory process altogether. They say the President can stop it. We will talk about that in a minute. First of all, let's understand what we are doing here. In the past there was no such animal as the one I just described. In the past, foreign availability was legitimate as a consideration, and it ought to be. When the licensers looked at the matter, if there was foreign availability, that was something they could take into consideration in issuing the license. Now it is taken out of their hands. If someone in commerce, their technical evaluation team, decides that there is foreign availability, it doesn't even come through the process anymore. Mass marketing is a whole new concept. Mass marketing was not even used, that concept was not even used in prior administrations. Now I am sad to say that the embedded component was, but it makes less sense of all. If an item is controlled and deemed to be significant from a potential national security purpose, under this bill if it constitutes 25 percent or less of the item that it is incorporated in, then it is decontrolled. So if you have a controlled item and it is put into an item that is bigger and worth more, that is not controlled, that makes the item that is controlled decontrolled. Of course, all an importer has to do, in some cases, is to buy the larger item and take out the item that perhaps he wants, which is the embedded part. If it is significant from a national security standpoint before it goes into the larger item, it is significant from a national security standpoint after it is put into it. What does money have to do with it? What is the fact that it is or is not 25 percent of the price of a larger item? Of what significance is that? Especially from a national security standpoint. That makes no sense whatsoever. So when we talk about building higher walls around fewer things, point out the higher walls to me. When we talk about making it more difficult to export some things, making it easier for some and harder for others, somebody point out to me the things that this bill makes it more difficult to export. This legislation provides broad and sometimes exclusive authority to the Secretary of Commerce on important procedural issues such as commodity classifications, license and dispute referrals, license exemptions, and development of export administration regulations. I have a lot of faith in our new Secretary of Commerce. I think he is a fine man, excellent choice, and is doing a great job. But the fact remains that the mission of the Department of Commerce is to promote exports. We used to criticize Secretary Ron Brown for his export policies and getting items changed from one list to another to make it easier to export, and things of that nature. The Commerce Department simply doesn't have the personnel and expertise to protect national security. It should not have to. That is not their job. Somehow we have set it up this way. We are letting the tail wag the dog. If national security concerns ought to be given adequate consideration in an export decision, the Departments of State and Defense must be given greater authority and a greater role in this process. This legislation doesn't do that. Really, to the contrary, it increases the authority of the Department of Commerce. Let me go over a few things here, and keep in mind, first of all, the purposes of this bill, the stated purposes of this bill. I didn't hear it discussed much when we were talking about the details of it. I think it is probably the most important part: To restrict the export of items that would contribute to the military potential of countries so as to prove detrimental to the national security of the United States. And also: To stem the proliferation of weapons of mass destruction. . . . That is the stated purpose. Whose job is it to do that? Well, we are going to give it to the guy who is in charge of commercial activities. Look at some of these areas. The Secretaries of Commerce and Defense must concur in order to add items to the control list. While this is an improvement over the previous draft of S. 149, which left sole discretion to the Department of Commerce, S. 149 still gives the Department of Commerce a veto over the Department of Defense if the Secretary of Defense believes an item should be controlled on the national security control list. Secondly, on commodity classification, the Secretary of Commerce has sole discretion over classifying items when exporters make commodity classification requests. These classifications determine whether items will require license or not and are particularly critical for new technologies. Commerce must notify Defense, but it is not required to solicit any input. What about the interagency dispute resolution process? Well, S. 149 gives the Secretary of Commerce sole authority to select a chairperson of, and determine procedures for, the interagency committee to review license applications. The chairperson considers the positions of all the reviewing agencies but then makes the final decision on the license application. The only role of the Department of Defense is to provide a position, and additional levels of review are resolved by a majority vote. What about foreign availability and mass marketing? The Secretary of Commerce has sole authority to determine whether items are foreign available or mass marketed. He must consult with other agencies, including the Department of Defense. Since items determined to be foreign available and mass marketed are automatically removed from the national control list and decontrolled, this authority to Commerce essentially creates a loophole around the Department of Defense veto over removing items from the national security control list. What about issuing regulations? The Department of Commerce and the President have the authority to issue regulations. These regulations must be submitted for review to any department or agency the President considers appropriate, but the legislation explicitly notes that the requirement to submit the regulations for review doesn't require the concurrence or approval of any reviewing department. Finally, the catch-all provision in S. 149 provides that unless otherwise reserved to the President or department or agency in the United States, all power, authority, and discretion conferred by this act shall be exercised by the Secretary of Commerce. Mr. President, that is substantial authority and control by the Office of the Secretary of Commerce. Regarding matters of national security, they should not have to bear that much responsibility. So now in the act here, we are not really building higher walls around anything. We are not trying to come up with a procedure to determine the national security implications of what we are about to do. We recognize that there is more dangerous technology out there than ever before, and we are providing it to people who are misusing it, but we want to continue to do that at a more efficient rate. With regard to the increased penalties on exporters, I think by and large that is an improvement. But the act totally decontrols large segments of exports. So if you are decontrolled, how are you going to get in trouble? If I were an exporter, I would make that tradeoff, too. Give me a penalty on something that there is no way I could ever be accused of violating if it falls under one of these items that don't even require a license. How do you violate something like that? We are going to make a higher, more onerous penalty on you for violating this, but we are going to amend the law so it doesn't apply to you. The Presidential override: It is true that there is a section here that, as the proponents indicate, really does override both the incorporated parts provision and the mass marketing and foreign availability provisions. In other words, the President can step in regardless of any of those provisions. To me, it is inconsistent with and renders a nullity many of the provisions in the foreign availability section, for example, because that section says the President must jump through all these hoops and go negotiate with all these countries and report back to Congress. In other words, Mr. President, if you are going to step in on behalf of national security, we are going to make it awfully tough on you; you have to jump through all these hoops. They are saying: Enhanced control provisions, no, no; the President, if he wants to use this section, does not have to do all that; in other words, if there is a significant threat, not just a threat to national security but a significant threat to national security. I am not sure how all that operates. I think it bears more studying. I think we are going to have to look at those sections together. If it does what is suggested, I still think we need to ask ourselves: Do we want to create whole new categories that are essentially determined by the Secretary of Commerce to decontrol and then say to our President: Catch me if you can? If we have made a mistake out of these thousands of applications we get every year--another section says the President cannot delegate this authority, so let's make it as tough on him as we can; he does not have many other responsibilities; let's create these whole new avenues of decontrol and then say to the President: You have the authority if you can come up with something. I do not know how much longer he is going to sit over there with a skeletal staff in some of these departments. Some people are estimating it will be 14 months before he gets his full team together, as far as his government is concerned. Assuming the President does have the authority ultimately to step in, is that a wise idea? We are not just giving him new authority to step in with regard to an old situation. We are creating a whole new situation, a much more decontrolled situation, and giving him the invitation without delegating any authority. If he personally wants to step into one of these situations, he has the authority to do that. He did not need this authority before because we did not have a concept such as foreign availability except as something to be considered. We did not have a concept of decontrol based on foreign availability or mass marketing up until this bill. Under those sections, if a company can persuade the Department of Commerce that it ought to be decontrolled, then it is decontrolled; there is no license requirement. We cannot even keep up with the number of computers we are sending to China or anywhere else. We do not even have a list to make some cumulative effect assessment if we wanted to. The business community ought to have their say. I get the top rankings from the businesses and small businesses. I do pretty good by them. But I must say, when it comes to matters of export controls based on national security in a world where we are being threatened as we speak by weapons of mass destruction, it irritates me somewhat when I see in this export bill ``the Secretary shall permit the widest possible participation by the business community on the export control advisory committees.'' This bill allows the Secretary to appoint advisory committees to advise the Secretary on these matters--quite objectively, I am sure. It also says the Secretary has to disclose to them information consistent with national security and intelligence sources and methods pertaining to the reasons for the export controls which are in effect or contemplated. If you want to impose any export controls for national security purposes, you have to go to these business entities and explain what you are doing and why you are doing it. Not only is that unnecessary, I am afraid it gives an indication or it belies the purposes of this act. This bill is going to pass, and we all know that. The forces behind it are strong. When you have the administration and probably the majority of both parties supporting it, that is a pretty fair indicator. I understand that. But for some time now, starting back a couple of years ago, the chairman of the Intelligence Committee, the chairman of the Foreign Relations Committee, the chairman of the Armed Services Committee, the chairman of the Governmental Affairs Committee, and the chairman of the Commerce Committee, along with Senator Kyl, who is an expert in these matters, have had grave concerns about the balance we are striking; that we are continuing a policy based upon the tremendous pressures that are being brought to bear and based on campaign commitments that were made. It is not in the best long-term interests of this Nation. I do not think any of us can say for sure to what extent it is not or in what way our security might be harmed, but we are concerned that the process is not properly weighted. We are concerned that if we are going to err, we err on the part of national security; that when we are willing to engage in such debate to take on our European allies, to take on Russia and China all for the sake of a national missile defense system, based on the concept of tremendous threats this country faces-- and I believe in the system--we must move forward on it because I believe in the threats, but we are refusing to acknowledge and recognize what is right before us and that we are helping to create the threat. When we are exporting high-tech items to countries that have already shown that they will take them legally or illegally, that they will divert them for military purposes, that they will send them to rogue nations, and we come up with a concept to make it even easier because it takes 40 days to go through a licensing process--we do not want our companies to have to wait 40 days for people take an adequate look at this before they do that--I do not think we have our values in the right place; I do not think we are looking at what is right before us. I am not suggesting we not reauthorize the Export Administration Act. I am not suggesting we build a wall around our technology. We know we cannot do that. But we must have a procedure that is not dominated by commercial interests, either outside Government or inside Government. And those in the Department of Commerce who are rightfully concerned about our commercial interests, that is their job. It cannot be dominated that way. We have to have a fair shot. All this is weighted too heavily on the side of people who have vested interests in foreign commercial relationships. We have a $100 billion trade deficit with China today. I just got back from China with the distinguished chairman of the Banking Committee. The biggest meeting we had was with the American Chamber of Commerce in Shanghai. We have tremendous foreign investment over there. That is fine. That is well and good. But surely to goodness we are not going to let that cause us, when we are considering matters of this nature, to come down too heavily on making the process more efficient for exports of potentially sensitive materials. Again, we are not even talking about stopping exports. What we are talking about is a procedure where, more likely than not, we can stop from making one substantial mistake. We should not back end load this process and put all that responsibility on the President, if he or his people are fortunate enough to catch something on which those who, with good intentions, just simply do not have the expertise to make a call. That is what we are concerned about. So I hope in the rush to get this bill approved and passed, which will eventually happen, we will have an opportunity to get some fair considerations for some amendments. I would overhaul this whole bill if it were left up to me, but it is not, and I do not have the votes. I am not going to stand in the way any longer. We have held this up now for a couple of years, and we cannot do it any longer. The votes are too great, and I see that. We could not filibuster it successfully if we wanted. Surely we can consider some amendments that just as an example might give a little bit more time to an agency to review a complicated export request based on the potential impact of the export on national security. An agency now only has 30 days. If they do not get back within 30 days, it is deemed to be approved. Thirty days is fine for most things, but they ought to be able to have 60 days, if they need it, for the complexity of the analysis or if the reviewing agency requires additional time based on the potential impact of export on national security, a bit of additional time under those circumstances. I hope we consider an amendment requiring the Secretary of Commerce to refer commodity classification requests to the Secretary of Defense and the Secretary of State. The current draft of the bill requires the Secretary of Commerce to notify the Secretary of Defense of commodity classification requests, but there is no referral, and the Secretary of State is not even required to be notified. That is a prudent addition, an improvement. We should have unanimous consent of all the reviewing agencies on a license application. The Cox committee recommended that. It can still be taken up and ultimately approved if need be, but if the Department of Defense, for example, objects and no one else does, or the CIA or whoever, should that not require their sign-off? As to postshipment verification, S. 149 says the Secretary of Commerce may deny licenses to countries that deny postshipment verification, although it says the Secretary shall deny licenses to particular end users. I suggest we add to that language that the Secretary of Commerce shall deny licenses to countries. Why do we mandate denying a license to an end user that will not let you verify it but leave it discretionary with the Secretary of Commerce to deny to a country that will not let you verify, when in many, if not all, of these cases it is a country policy? We have an agreement, for example, with the country of China. If we are being denied the right to go in and do our postshipment verification, it makes no sense to blame it on a company. It is the country that is denying us. So why should we make it mandatory on a company but discretionary with the country that is calling the shots? As to foreign availability, the definition of ``foreign availability'' requires only that an item or substantially identical or directly competitive item be available to control countries from sources outside the United States in sufficient quantities at a price not reasonably excessive. This definition does not speak to relative quality. In other words, if it is out there, if other countries can supply it but if it is not the same quality as that of the United States, and it is potentially dangerous and it is something that can potentially be used for military purposes to a country of some concern, would we not want to take into consideration the fact we are liberalizing or loosening our standards because they have access to a similar item even though it is not of the same quality as our item? We ought to consider that carefully. The deemed export issue, the definition of ``exports'' in S. 149 includes transfers of items out of the country or transfers of items within the country with the knowledge and intent that a person will take the item out of the country, but it does not cover any transfer of technology to a foreign national. We have had a concept of deemed exports in this country for a long time, and that is if you give a foreign national the same kind of controlled information that is sent abroad, it ought to operate under the same rules if it is the same information because of the potentiality of it getting back, and we know that happens. Under the current definition of the statute, the Secretary of Commerce has discretion over whether to control deemed exports. I do not think the Secretary of Commerce ought to have that discretion. Now my concern here is that there has been pressure from the business community to eliminate the deemed export requirement altogether, and S. 149 includes language stating it is the committee's understanding that the administration will be reviewing the deemed export process with a view toward clarifying its application. I do not have any idea what that means. What I think it means is that we are going to work to get rid of this sucker, but we need a deemed export rule and we need it to be mandatory. We had hearings and heard countless hours of testimony about what was happening in our National Laboratories when we were concerned about the information was getting out, and we saw the thousands of hours and thousands of people who were coming in from other countries who had access to information. Private industry was doing much better than the Government, but our own Government people were not submitting the necessary documentation for deemed exports to tell our people what information these folks had access to. It was common sense. We do not want to cut off foreign students. We do not want to cut off foreign experts, the technology; it benefits our own economy; we need that interplay. But it is common sense to protect yourself a little bit. We need to do that. There are others we might consider, but those are some I hope within the next couple of days we have the opportunity to consider in some detail with an idea toward tightening it up some, and making it so when we leave this, having passed it, we have not unwittingly done something that made it more difficult in the operation of this process. It all sounds pristine when we describe it. It goes here and here and here, and then someone has this right and the other fellow has the other right and these thousands of things that come rushing through, but in actual application it is not always quite that smooth. This bill, thank goodness, devotes some additional funding for this licensing process, which I think is a good thing. Let us make sure that in all of this we do what we can, at least around the edges, is the way I would look at it, to make sure we give enough time to properly consider these things, and we have them considered by the entities that ought to be looking at it and not being totally weighted or unduly weighted toward the commercial side. So I look forward to the discussion. I congratulate my colleagues on their perseverance to get this bill this far. We have been arguing and discussing this bill for a long time. It is one of those cases where people have strong feelings on both sides and make valid points on both sides. Everyone is trying to strive for the right thing and the proper balance, and hopefully at the end of the day we will have something that will not produce grave concern among the American people. I yield the floor.

Mr. THOMPSON. Will the Senator yield?

Mr. THOMPSON. I thank the Senator.

Mr. THOMPSON. So we will vote at 5:15 on this amendment that we are discussing right now.

Mr. THOMPSON. Mr. President, I will address the issue concerning the amendment I have submitted having to do with the amount of time agencies would have to consider a license application. This amendment provides additional exceptions from acquired time periods for processing license applications if the reviewing agency requires more time due to the complexity of the analysis or if the reviewing agency requires additional time based on the potential impact of the export on national security or foreign policy interests of the United States. It limits any additional time to not more than 60 days. In other words, what this amendment does--first of all, as it is currently drafted, it gives an agency 30 days to look over this license application and to come to a decision as to whether or not it wants to go along with it or try to oppose it. If the agency is not heard from within 30 days, then it is deemed the agency waives its rights and the agency approves it. What this amendment does is it takes a particular set of circumstances where there are national security implications; in other words, the Department of Defense takes a look at something and says: Perhaps this is a very complex application, and it very well may have national security implications. We simply cannot get this done in 30 days. We need additional time. As to the Cox Commission, I hope my friends who are sponsoring this legislation will not choose the Cox Commission as authority when it chooses and ignore the Cox Commission when it makes recommendations that oppose it because the Cox Commission concluded in its determination that there were undue time pressures brought to bear on these agencies sometimes. We needed to get the merchandise out the door when these agencies were trying to make these national security determinations, so they came up with recommendations that are consistent with what we are talking about here. The amendment was accepted unanimously by voice vote in the House International Relations Committee markup of the Export Administration Act. The Cox Commission recommended this: With respect to those controlled technologies and items that are of greatest national security concern, current licensing procedures should be modified to provide longer review periods when deemed necessary by the reviewing executive department or agency on national security grounds. I have heard it said this is when there is great national security concern. As I indicated, the Cox committee recommended additional time be given under appropriate circumstances, and these are appropriate circumstances. Opponents of this amendment say these are just circumstances where there is substantial national security concern. I ask my colleagues, how do we know whether or not there is a substantial national security concern if the agencies that are determining that do not have sufficient time enough to investigate it? Are we going to decide if the Department of Defense believes it needs additional time and believes there may be national security concerns? Are we going to cut them off prematurely because they cannot make out a prima facie case at that point? Should they not, as the agency dealing with this and having the expertise, be given, in a matter of national security--as we are trying to get the merchandise out the door, let us remember what we are talking about--national security. Do we not let the Department of Defense have a little additional time to make sure we are not sending something dangerous to somebody dangerous? I do not fully appreciate the talk of the balance between jobs and security. We are not dealing with a jobs bill. We are dealing with a bill that is designed to protect national security. We are not balancing off how much money somebody could make. Three percent of our total exports are exports to these controlled companies, so we are talking about most all of them are approved. We are talking about a fraction of 3 percent. They have a very effective lobby and they have been doing their job well, but let us not lose sight of the smallness of the exports we are talking about in terms of the total economic picture. Even if it were large, I would think the same way about it. If we want to talk about a balance or a tradeoff, are we not willing to trade off a fraction of 3 percent over against, say, the Department of Defense when it has a national security concern, having an additional 60 days to take a look at it? Are we that eager to get the merchandise out the door when we are being told on a regular basis these rogue nations are developing this additional technology; that they are developing weapons of mass destruction; that China and Russia are supplying them with technology that will assist them in their weapons of mass destruction; that China, which will greatly benefit from this bill, is taking our technology and using it for military purposes; when our commissions and agencies are telling us in their reports, whether it be Rumsfeld, Deutch, or our own intelligence agencies that report on a biannual basis, that these threats are growing and that they are using American technology; when we hear things like Saddam Hussein has been furnished by a Chinese company with technology that will assist him in his fiber optic cable network that will actually assist him in shooting down American airplanes--we have caught him twice at it now--and it is being supplied by a company that has a relationship with a company in the United States? I hope if one of our boys gets shot down over there it is not determined it is with American technology. It is not farfetched. I am not claiming I can suggest anything that would forever prohibit that, but we can surely give the Department of Defense an extra 60 days if it believes it has a national security concern. We have gotten past, I suppose, the debate on things such as foreign availability. We are going to have somebody down in the bowels of the Department of Commerce determine all that needs to be deregulated and it is out the door; anything they say is foreign available. Mass marketing: Somebody within the bowels of the Department of Commerce decides it is mass marketed so all of that goes out the door. Embeded components: If something is regulated and considered to be sensitive because it can be used potentially for military purposes, it is regulated, you have to have a license. But if somebody puts it in a bigger component, you do not have to have a license for it or the bigger component if the bigger component is worth more than 75 percent of the total value of what is being shipped. It makes no sense at all. It makes no national security sense. It might make economic sense for some folks. But all that is by the board. We passed that. We will do that and tell the President, catch him if you can, fixing it so the President can't delegate any of this. The President has to make the determination that he wants to come in with oversight action that will go against this entire regulatory process when we have thousands of these applications a year. We are not going to be able to do anything with that. The train left the station. I can count votes. Apparently, we have decided in this Nation to turn a blind eye to the proliferation activities in this world, to the fact that we are now subject to being hit from some of the smaller rogue nations, countries that are starving their own people to death, putting their money into missile and nuclear capability, to now hit us, our allies, or our troops in the field, and we are opening the door wider to send stuff to countries that are supplying the rogue nations. We have apparently made that decision. For goodness' sake, can't we give the Department of Defense a little more time when they are asking us to hold up a little bit and make sure we are not hurting our country? Do we have to draw the line at an additional 60 days for that kind of consideration? If we can't do this, we might as well fold up our tent and do anything that exporters want to do. I don't see why we ought to have an export process anymore. It clearly will not be designed to protect this country, which was its original design. I hope history does not prove this is an even more unwise decision than I fear it might be. The cold war certainly is over, and it has left a country that is more vulnerable than ever to our own technology. Most of it we are not dealing with today. We are not dealing with nontechnology matters. We are dealing with limited items in a very narrow regulatory process. We approve 98 percent of them anyway, even in the regulatory process. The average time it takes is 40 days. We can't stop and take a deep breath long enough to make sure we are not hurting our country, when it takes 40 days on average to get this done? And the overwhelming majority are already approved. We need to reauthorize the Export Administration Act. We need to tighten it up, instead of loosening it. But that will not happen. It will be loosened. I ask, can't we at least consider the agencies involved, as the Cox commission suggested? It has been said if there is a national security concern, they can raise it later in the review process. If the Department of Defense has not had time to adequately investigate the matter, it is already in the interagency review process and they will not have the information on which to base an objection. Do we want to force the process along so fast we ensure the Department of Defense or the affected agency does not have sufficient time to make an objection, had they known the full extent of the nature of the export and perhaps the end user and how it would be used and the potential uses for it? We may have to go down this road, but we don't have to get in the jetstream. We don't have to do it with blinders. I suggest this is a minimalist amendment that we would want to pass to benefit the process and to show the world we are not so intent on trade and money that we will not even take modest measures to make sure we are not making a mistake with regard to something important to our country. I yield the floor.

Mr. THOMPSON. Yes. The House committee reported this out with unanimous consent.

Mr. THOMPSON. I believe it is essentially the same.

Mr. THOMPSON. What was the unanimous consent with regard to the provision of time right before the vote?

Mr. THOMPSON. All right. That was my understanding, 2 minutes per side.

Mr. THOMPSON. Mr. President, this amendment does nothing to lessen the certainty for the exporters. Under the old law, it is 30 days the agencies have. Under the new law, it will be 30 days. The only difference is that in the case of potential national security, an agency would have additional time. The agency doesn't have to take that time. If the average time for these licenses, as the Senator described, was 13 days, it certainly doesn't sound like that bureaucratic mess we heard described earlier.

Mr. THOMPSON. Madam President, the amendment I have offered makes a small but significant change in the license application review process. This amendment allows executive branch agencies such as the Department of Defense or the Department of State that are reviewing licensing applications to have an extension of up to 60 days to review the license if the analysis involved in reviewing the license is complex or based on the potential impact of the export on the national security or foreign policy interests of the United States. This amendment should not be controversial. The amendment is simple and easy to understand and, in my view, it is very hard to oppose. For example, if the Department of Defense is reviewing a license application for sensitive dual-use technologies that are controlled under our export control process, it should be able to get additional time if the analysis is complex or if the export presents particularly sensitive national security concerns. This change is small but very important. The House International Relations Committee accepted this amendment unanimously by voice vote in its recent markup of the Export Administration Act of 2001. And this amendment reflects a recommendation made by the Cox commission on U.S. National Security and Military/Commercial Concerns with the People's Republic of China. The Cox commission report concluded that U.S. export control policies and practices have ``facilitated the PRC's efforts to obtain militarily useful technology.'' One of the issues the Cox commission discussed was the fact that in 1995, the U.S. reduced the time available for national security agencies to consider export licenses. The commission said that these new deadlines placed national security agencies under ``significant time pressures.'' It concluded that the time allowed for consideration of licenses was ``not always sufficient for the Department of Defense to determine whether a license should be granted, or if conditions should be imposed.'' The Cox commission recommends: With respect to those controlled technologies and items that are of greatest national security concern, current licensing procedures should be modified. . .to provide longer review periods when deemed necessary by any reviewing Executive department or agency on national security grounds. The current version of the legislation contains strict time restrictions. Reviewing agencies, such as the Department of Defense, the Department of State, or the Department of Energy, have 30 calendar days to provide a recommendation to the Department of Commerce. If they do not provide a recommendation within 30 days, they are deemed not to have any objection. This means that if the Department of Defense, for example, has inadequate time to complete a complex review, the license application is automatically granted and sensitive dual-use technology is exported. Allowing additional time in particularly complex or sensitive cases would protect our national security at little cost to any economic interests. Under the current draft of the legislation, the longest time an applicant could wait for an answer under the legislation is 129 days. The Secretary of Commerce has 9 days from receipt of the license application to refer it to the appropriate reviewing agencies. These agencies have 30 days to respond. If there is an interagency dispute regarding whether to grant the license, it is referred to the interagency dispute resolution process. The interagency process must resolve the issue or refer it to the President within 90 days after the license application is referred to the interagency process by the Secretary of Commerce. In fiscal year 1999, average processing time for all applications was 40 days. Applications that did not need to be referred to another agency, which comprised 14 percent of all applications, had an average processing time of 20 days, and applications that were referred to reviewing agencies had an average processing time of 43 days. This amendment would provide up to 60 additional days of review for export license applications that are complex or based on the potential impact on U.S. national security or foreign policy interests. While this could lengthen the process somewhat in the most sensitive cases, it would have little or no impact on the majority of export licenses. Madam President, this change to the legislation is small, but significant. It is designed to address a national security issue identified by the Cox commission and it implements one of the Cox commission's recommendations. The House International Relations Committee accepted this amendment unanimously during its markup of the Export Administration Act. I hope that my colleagues will join me in supporting this important amendment. I yield the floor. Mr. HELMS addressed the Chair.

Mr. THOMPSON. My understanding is that this will probably be the vote at 5 o'clock.

Mr. THOMPSON. Yes.