A. BACKGROUND AND HISTORY OF INTERNATIONAL PROGRAMS
1. International programs with allied and other friendly countries are an increasingly important part of U.S. national security and defense acquisition strategy in the post-Cold War era. These programs flow from U.S. efforts during the late 1940s and early 1950s to support Western Europe and create a strong defensive alliance. In the early years this support was largely in the form of grants of surplus military equipment. As the stockpile of surplus equipment decreased, the emphasis shifted to sales of military equipment and the furnishing of technical assistance. A principal purpose of these programs was to ensure a high degree of equipment standardization within the North Atlantic Treaty Organization (NATO) and to build a European defense industrial base.
2. Building on a base of sophisticated U.S. military technology, the Western European countries were designing and producing their own weapons systems by the late 1960s. In the early 1970s, the United States again began to emphasize standardization of the growing number of weapons systems. In a change to the philosophy of the 1950s, armaments cooperation evolved into a "two-way street" in defense trade in which the United States and its allies would encourage standardization by purchasing each other's equipment. Subsequent legislation encouraged the establishment of cooperative research and development programs to achieve standardization.
3. The mid-1980s saw a substantial increase in DoD international cooperative program activity. This was a result, in part, of the growing assertiveness and improved technological capabilities of the U.S. allies and other friendly countries.
There also was a growing awareness of the wasteful and duplicative research and development (R&D) programs within NATO. On November 1985 Congress established the NATO Cooperative Research and Development Program and the NATO Comparative Test Program, Pub. L. No. 99-145, (reference a). Both of these programs emphasized collaborative research, development, test and evaluation (RDT&E) for weapons systems meeting common military requirements through deployment and support of common, or at least interoperable, equipment. The Congress later expanded the NATO Cooperative R&D Program to include major non-NATO allies (Australia, Egypt, Israel, Japan and the Republic of Korea).
4. The Department of Defense, with the strong support of the Congress, has placed increasing emphasis on international armaments cooperation in R&D and acquisition of weapons systems and defense technology. There has been a significant effort to identify and promote cooperative opportunities and participate in international cooperative programs. There are programs for the exchange of scientific and technical data, and personnel associated with RDT&E. Cooperative efforts to standardize military equipment, doctrine, and procedures with allies and friendly nations are ongoing. Programs for cooperative RDT&E, follow-on production and procurement of equipment (including logistic support) to meet U.S. or common U.S.-allied requirements and promote interoperability currently have a high priority.
5. International programs are therefore a fact of life. They will require sharing technology, classified military information (CMI) and controlled unclassified information (CUI) with allies and other friendly countries. The risk of its being exploited and falling into the wrong hands must be taken into consideration. DoD officials must therefore understand how to protect the military capability of our Armed Forces which is represented by the related technology and other controlled information, and, at the same time, support international programs.
B. STRIKING A BALANCE
1. This section provides an overview of the major laws, Executive Orders and directives, and departmental regulations that establish the foundation for the U.S. policy that governs the foreign disclosure of CMI and CUI, and form the basis for related security requirements for international programs. The laws and Executive Orders contain basic principles and conditions that are intended to protect U.S. national interests. The basic principles and conditions must be understood and applied to international programs in a correct and efficient manner to avoid their being perceived as impediments to the programs.
2. Federal Laws.
a. Arms Export Control Act (AECA), Pub L. 94-329 (1976), (22 U.S.C. 2751
(1) The AECA (reference b) governs the sale and export of defense articles and services and related technical data and is the legal basis for most international programs covered by this handbook. The Secretary of State, acting for the President, in consultation with the Secretary of Defense, designates which articles and services are defense articles and services. The articles comprise the U.S. Munitions List (USML) which is contained in the International Traffic in Arms Regulations or ITAR (reference c). The AECA covers commercial and government sales programs, including certain government cooperative research and development programs. The ITAR implements Section 38 of the AECA for commercial sales. The Security Assistance Management Manual (SAMM) (reference d) governs the government sales program.
(2) The AECA requires that exports support U.S. national security interests. It also requires the President to receive assurances that a proposed foreign recipient of defense articles and services has agreed to certain conditions before a sale of defense articles or services may be approved. First, the recipient must agree not to transfer title or possession of the articles or services (which include technical data) without prior U.S. Government consent. Second, the recipient must agree not to use the articles or services or permit their use for other than the purpose for which they were furnished without prior U.S. Government consent. Third, the recipient must agree to maintain the security of the defense articles and services and provide substantially the same degree of security as the U.S. Government. These conditions form the legal basis for the security assurances and requirements associated with international programs. The AECA is discussed further in Chapter 2.
b. Export Administration Act Of 1979, (EAA), Pub. L. 96-72 (1979), (50 U.S.C. 2401-2420), as Amended
(1) The EAA (reference e) governs the export of most of the unclassified articles and services not covered by the AECA. It controls exports on the basis of their impact on national security, foreign policy or supply availability. It requires the Secretary of Commerce, in consultation with other officials, to issue implementing regulations. Public Law No. 103-10 (1993), (reference f) extends the provisions of the EAA (which expired on September 30, 1990), and the rules and regulations issued under it, to June 30, 1994.
(2) Most of the goods covered by the EAA are not inherently of a military nature, such as refrigerators. A smaller number are dual-use goods which have both a military and a civilian application, such as lasers. The EAA authorizes the Secretary of Defense, in consultation with the Secretary of Commerce, to identify these dual-use goods and review and control their export for national security reasons. The Departments of State and Defense also must coordinate on the export of certain dual-use goods.
c. The Atomic Energy Act (AEA) Of 1954, Pub. L. No. 83-703 (1954), (42 U.S.C. 2121, 2153, And 2164), As Amended. The AEA (reference g) allows the U.S. Government to make available to cooperating nations certain nuclear material and information. An international agreement is required for sharing material and information controlled by the AEA with another nation.
d. The Freedom Of Information Act (FOIA), Pub. L. No. 89-554 (1966), (5 U.S.C. 552). The FOIA (reference h) requires the U.S. Government to provide the public access to Government information, upon request, except when the information falls within any of nine categories of information that qualify for exemption to the requirement. Only certain designated DoD officials have the authority to authorize a specific exemption. DoD 5400.7-R (reference i) implements the FOIA within DoD. The first exemption category is national security information that is classified pursuant to E.O. 12356 (reference j) as CONFIDENTIAL, SECRET, or TOP SECRET. The other eight exemption categories describe types of unclassified information that may be withheld from public disclosure. It is information in these eight categories that may be marked FOR OFFICIAL USE ONLY. The FOIA is discussed further in Chapter 4.
e. 10 U.S.C. 130. 10 U.S.C., also known as Pub. L. 98-94 (reference k), permits the Secretary of Defense to withhold from public disclosure export controlled technical data with military or space application. This information is identified by specified distribution and export control warning statements. DoD Directive 5230.25 (reference l) implements this law. DoD Directive 5230.24 (reference m) describes the distribution statements. This subject is covered in greater detail in Chapter 4.
3. Executive Orders And National Security Council and Other Directives
a. E.O. 12356
(1) E.O. 12356 provides the basis for classifying certain information as CONFIDENTIAL, SECRET, or TOP SECRET. The level of classification is based on the degree of damage to national security that would occur from the loss or compromise of the information. The order also identifies the types of information that qualify for classification and establishes the rules for declassification, downgrading and for protecting classified information.
(2) E.O. 12356 applies to all decisions on access to classified information, including foreign disclosure decisions, which are discussed in Chapter 3. First, it prohibits the release of classified information outside the Executive Branch without an assurance that it will receive equivalent protection. Second, it requires a determination that prospective recipients are trustworthy and have a need-to-know to accomplish a lawful and authorized Government purpose. Third, it requires the originator's consent for further dissemination (third agency rule). Fourth, it provides for safeguarding information received in confidence from foreign governments and international organizations. It also provides for holding in confidence, by mutual agreement, information produced jointly with them.
b. E.O. 12333, and Director Central Intelligence Directives (DCID) 5/6 and DCID 1/7. E.O. 12333 (reference n) provides the basis for controlling disclosures of classified U.S. intelligence to officials of foreign governments and international organizations. DCIDs 5/6 and 1/7 (references o and p) implement E.O. 12333. DoD Directive C-5230.23 (reference q) implements DCID 5/6 and establishes DoD policy and procedures and assigns responsibilities for the control of disclosures of classified U.S. intelligence to officials of foreign governments and international organizations. DCID 1/7, implemented by DoD Instruction O-5230.22 (reference r), establishes a system for controlling the dissemination and use of intelligence information produced by the intelligence community. The basic requirements for the disclosure of military intelligence are described in the National Policy and Procedures for the Disclosure of Classified Military Information to Foreign Governments and International Organizations, (short title: National Disclosure Policy (NDP-1), (reference s).
c. National Security Decision Memorandum 119 (NSDM 119)
(1) NSDM 119 (reference t) is the basic policy that governs the disclosure of U.S. CMI to foreign governments and international organizations and their representatives.
(2) NSDM 119 charges the Secretary of Defense and the Secretary of State with the responsibility for implementing the policy. It requires the Secretaries of Defense and State to form an interagency mechanism to establish procedures to carry out this directive. This mechanism is the National Military Information Disclosure Policy Committee (NDPC). The implementation of NSDM 119 is discussed in detail in Chapter 3.
d. International Traffic in Arms Regulations (ITAR), 22 CFR 120-130. The ITAR implements Section 38 of the AECA with regard to commercial exports of defense articles and related technical data. The Director of the Office of Defense Trade Controls (ODTC), Department of State administers the ITAR. It contains the USML (Part 121) which identifies the defense articles that are subject to export control. The export of classified defense articles and technical data also are subject to the provisions of the National Disclosure Policy, which is discussed in detail in Chapter 3. The ITAR also covers procedures for requesting an export authorization.
e. Export Administration Regulations (EAR), 15 CFR 768-799. These regulations (reference u) implement the EAA. The Secretary of Commerce issues the EAR in consultation with the Secretaries of Defense and State. The EAR governs the export of most goods which are not inherently of a military nature and thus do not qualify as defense articles. It takes special notice of those civilian goods which can also enhance the military capability of the recipient (i.e., dual-use items). The Commerce Control List (CCL), in Part 799 of the EAR, controls dual-use goods and associated technical data. The Bureau of Export Administration (BXA), Department of Commerce, administers the EAR.
f. National Policy Governing The Disclosure Or Release Of Communications Security Information To Foreign Governments And International Organizations (NCSC 6). NCSC 6 (reference v), a classified document issued by the National Security Telecommunications and Information Systems Security Committee (NSTISSC), provides the policy for exporting communications security (COMSEC) information. DoD Instruction S-5225.1 (reference w) implements NCSC 6.
C. ISSUES NOT COVERED
This handbook does not cover the details of information security, personnel security, physical security, communications security or other specific security disciplines. It also does not cover intelligence programs. To the extent that this handbook addresses such matters, it does so in terms of their relationship to foreign disclosure or export decisions related to international programs and the related security requirements. However, pertinent references are provided, where applicable.