New Transparency Measures Urged to Fight Nuclear Tech, Material Smuggling

STEYNING, United Kingdom -- A wide array of potential new measures to heighten the penalties for smuggling nuclear-weapon technology or materials were debated during a three-day conference here last week (see GSN, Aug. 17).

U.S. and European government officials and issue experts underscored the potential benefits of civil litigation as an emerging nonproliferation tool (see related GSN story, today).

However, a number of other initiatives to increase transparency in the often-murky sales of technologies useful in the production of illicit nuclear weapons could also help stem the spread of these arms worldwide, participants in the Wilton Park conference said.

Each of the measures explored could offer "different ways of creating transparency with liability exposure," said Harvey Rishikof, who chairs the American Bar Association's Standing Committee on Law and National Security.

To complement or augment civil litigation, initiatives to combat nuclear-weapon trafficking recommended by one or more conference speakers included:

-- Holding bad actors responsible for where a technology ends up. A technology exporter could potentially protect himself by shifting the legal liability of his export onto intermediaries, "requiring that the purchaser post a bond" that would cover any "severe financial penalty that the original exporter would be subjected to" for the export, "whether or not he was at fault," said Victor Comras, an attorney and consultant on international sanctions and export control issues.

Any other intermediaries could also require such an indemnification bond, effectively "passing the penalty to those ultimately responsible for the violation," he said;

-- Requiring publicly traded companies to disclose to shareholders any violations of export-control laws. This might alert investors to a risk of corporate vulnerability to future government fines and could lead to increased divestment;

-- Raising the dollar amount on fines for violation of export-control laws;

-- Imposing tougher minimum sentencing guidelines for criminal convictions; and

-- Requiring exporters to file brief declarations about the end use and user of the item. This might allow the government a more usable tool for penalizing false statements, even in cases where conspiracy cannot be proved.

Some of these measures might be facilitated by the enactment of new congressional legislation, several conferees agreed.

Participants also discussed the possibility that Washington and its allies could expand export-control coordination in a number of respects.

For example, one law-enforcement official recommended that allied countries create specialized task forces at the national level. These teams would be populated by experts on applying controls and penalties related to nuclear-technology smuggling, said this official.

They could include "investigators and prosecutors experienced and trained in [these] types of investigations, laws, evidentiary rules, [and] international [regulations]," Rishikof said. They would be "focused on criminal [activity] but would [also] have an understanding of the civil implications for private civil suits," he said.

Allied nations might also do a better job of circulating their blacklists of companies denied export licenses for attempted transfers of dual-use goods. The U.S. Commerce Department publicly announces the penalties it assesses, but the Customs Department does not, according to one conference participant.

"Blacklists are usually not shared between countries. I don't understand why," Comras said. "One country's blacklist should, at least, become another country's cautionary list."

Nations interested in capping proliferation should also share more intelligence, particularly in instances where rapid information-gathering is required to interdict suspicious cargo, a number of participants said.

Countries might also adopt "extraterritoriality" provisions, similar to those in U.S. law that allow national legal jurisdiction in the case of crimes committed by its citizens abroad. This practice allows Washington to extend its export controls to the re-export of U.S. items or technologies produced overseas with significant U.S. content, according to Comras.

October 30, 2009

STEYNING, United Kingdom -- A wide array of potential new measures to heighten the penalties for smuggling nuclear-weapon technology or materials were debated during a three-day conference here last week (see GSN, Aug. 17).