314. Memorandum From the Acting Assistant Secretary of Defense for International Security Affairs (Ware) to the President’s Assistant for National Security Affairs (Kissinger)1

SUBJECT

  • Export Control Guidelines

We have reviewed the two memoranda on the above subject, one of which was sent to you by the Department of Commerce on 13 January and the other by the Department of State on 26 January.2 Although there are some points on which we differ with both papers, the Department of Defense is in general accord with the views outlined by the Department of Commerce.

In implementing the Export Administration Act of 1969 it is necessary to note that the language used in the Act as well as the statements of its proponents in both Senate and House are unequivocal in stating that liberalization of controls is not intended to apply to strategic items whose export would prove detrimental to the national security. The formulation in paragraphs A.1 and A.2 of Attachment A to the Department of Commerce memorandum is consistent with this aspect of the legislation and the Department of Defense therefore would support it.

By contrast, while correct in observing that the new Act expressly drops “economic potential” as grounds for requiring an export license or denying an export, the Department of State memorandum is in error in equating “economic potential” with the criterion of “military-industrial capability” which the Department of Commerce proposes to continue to apply. The potential contribution of an export to the military-industrial capability of the country of destination has always been one of the tests applied to determine whether the item should be treated as strategic. The criterion of “economic potential” was introduced only in 1962 as an additional and quite distinct ground for controlling exports. Whether this criterion is or is not now discarded has no bearing on the continued use of the test of “military-industrial capability.”

We also agree with the Department of Commerce that a prompt review of all presently controlled commodities is required but again we cannot accept the Department of State idea that in making this review the COCOM list be used to determine what items have significance for the [Page 813]national security of the United States. To place an item on the COCOM embargo list requires the unanimous consent of all the NATO nations and Japan.

Given this fact and the traditional attitudes of our allies on sharing the burdens of maintaining international security, the COCOM embargo list cannot provide any reliable measure of the significance for U.S. national security of individual commodities. Indeed, the smaller COCOM embargo list is probably indicative of little more than the level of success we have achieved in negotiating these matters with our allies.

With regard to the Commerce proposal on items of “emotional” or “public image” significance, we believe these are not a special category and should be dealt with in the framework of “foreign policy” reasons. Certainly the export of jet fuel, to cite one of the examples given, may need to be controlled on occasion to some destinations in terms of the diplomatic consequences which may follow its export from the U.S.

As we see it, the chronic difficulty with our export control activities is that they have not been and are not now discriminating enough both as to the commodities placed under control and the countries to which controls have been applied. Accordingly, we are wholly in accord with the idea of a prompt and thorough review of the present control list, but would emphasize that a review based on superficial judgments intended to result in sweeping changes in present controls would not be in accordance with the new legislation and could be detrimental to our national security.

In sum, we believe that the differences in basic views which exist between the Department of State on the one hand and the Departments of Commerce and Defense on the other are important enough to make an inter-agency discussion with you worthwhile. If the broad questions involved can be settled, we believe it will be possible to reach prompt decisions on the individual transactions mentioned in the Department of Commerce memorandum.

RA Ware
  1. Source: National Archives, Nixon Presidential Materials, NSC Files, Agency Files, Box 224, DOD, Volume VI 2/l/70-4/20/70. Confidential.
  2. Neither found, but see Document 315 .