The following is a summary of the 24th session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.
On September 8, 2022, the Congressional Study Group on Foreign Relations and National Security convened over Zoom to discuss emerging issues in U.S. export controls. In recent years, U.S. export controls have been used in a variety of new and interesting ways, particularly in relation to China, Russia, and the conflict in Ukraine. Many of these applications underscore the potential value of export controls as a foreign policy tool, but they also bring to the fore a number of challenging legal and policy questions.
The study group was joined by two outside experts: Martijn Rasser, senior fellow and director of the Technology and National Security Program at the Center for a New American Security and a former senior U.S. intelligence and defense official; and Brandon Van Grack, a law firm partner and former senior national security official at the U.S. Department of Justice.
Prior to the discussion, the presenters circulated the following background readings to the Study Group:
- “Commentary Series: Export Controls Are a Defining Instrument of U.S. National Security,” Center for a New American Security (Aug. 13, 2020) (collection of short commentaries);
- Martijn Rasser, “Rethinking Export Controls: Unintended Consequences and the New Technological Landscape,” Center for a New American Security (Dec. 8, 2020);
- Ian F. Ferguson, Paul K. Kerr & Christopher A. Casey, “The U.S. Export Control System and the Export Control Reform Act of 2018,” Congressional Research Service (June 7, 2021);
- Emily Kilcrease, “Noteworthy: The New Russia Export Controls,” Center for a New American Security (Mar. 7, 2022); and
- Karen M. Sutter & Christopher A. Casey, “In Focus: U.S. Export Controls and China,” Congressional Research Service (Mar. 24, 2022).
The presenters began by discussing the emergence of export controls as a prominent tool of economic statecraft. While export controls themselves have a long history of use, in recent years they have assumed a more prominent role in U.S. foreign policy. The presenters noted that the Trump administration’s use of export controls marked the start of this mainstreaming, citing the U.S. government’s expanded use of the U.S. Department of Commerce’s Entity List and the Foreign Direct Product Rule as examples. The presenters observed that bipartisan support for the use of export controls in sectors such as artificial intelligence and quantum information science suggest that there is a strong foundation for future action in this area. But the expanded use of export controls is often the result of innovative interpretations by the executive branch, which may require oversight and monitoring by Congress to ensure continued alignment with its legislative purposes.
Export controls, the presenters noted, cannot be regarded as an end in and of themselves but must serve as a component of an overall strategy. Such a strategy should also consider the extent to which the technology landscape has changed: the presenters noted that many export control regimes date to a time when the United States had fewer competitors in science and technology. The decline of the U.S. share of global research and development funding and increased U.S. reliance on other countries for certain technology inputs suggest that unilateral imposition of export controls will be less effective than in the past because targeted countries can more easily find work-arounds as technology know-how and capabilities proliferate beyond the United States. For these reasons, close cooperation with allies on export controls is of growing importance.
Ultimately, the presenters observed, an export control strategy calls for policymakers to identify a goal, such as freezing a target’s technological progress in a particular area. Other relevant considerations can include the extent to which a particular technology enables military power, and the U.S. government’s ability to achieve broad support for export control decisions from stakeholders, including in Congress.
The experts’ initial remarks were followed by open discussion with study group participants. Topics discussed included: how the U.S. government conducts diplomacy associated with export control policy initiatives; changes in views on the role and use of export controls across presidential administrations; how effectively new innovations in export controls can be enforced with existing authorities and capabilities; and Congress’s ability to monitor the use of export controls by the executive branch.
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