MISSING THE TARGET ON NONPROLIFERATION?
By Jerry Sorkin
More than two years later, how goes this strategy? There has been some success. The Libyan regime has abandoned its nuclear program. But the threat from Iran and North Korea looms larger than ever. And, while North Korea spreads missile technology throughout the Middle East, and Iran works to enrich weapons-grade uranium, there is evidence that, rather than rolling back proliferation, U.S. policymakers are missing the target, instead spending their resources chasing phantoms. While the Islamic Republic of Iran systematically built its centrifuges and imported reactor parts, in a Kafkaesque situation, the full wrath of U.S. counter-proliferation efforts descended upon my suburban Philadelphia antiques business.
On December 14, 2001, for example, Expediency Council Chairman and former President Ali Akbar Hashemi Rafsanjani ascended the podium at Tehran University in order to deliver the Islamic Republic's formal sermon. Rafsanjani declared:
Bush and the U.S. State Department are correct to recognize that a number of countries have catalyzed or even enabled the Islamic Republic's nuclear ambitions. In 1995, Russia agreed to sell Iran one VVER-1000 nuclear reactor and 2,000 tons of uranium, and to provide training for up to twenty employees.  Beijing agreed to assist Iran's efforts to enrich nuclear fuel.  While the International Atomic Energy Association (IAEA) inspects Bushehr's light-water reactor, real danger exists that the Bushehr plant can provide cover for other Russian-Iranian nuclear exchanges.  The August, 2002, revelation that the Islamic Republic had constructed a secret underground uranium enrichment facility in Natanz brought the issue to light again.
The Islamic Republic has used the space created by the European Union's "critical engagement" policy to bolster its weapons programs. The European Union is now Iran's largest trading partner. EU trade with Iran has doubled since 1999.  Bilateral trade now exceeds $13 billion. EU External Affairs Commissioner Chris Patten explained, "There is more to be said for trying to engage and to draw these societies into the international community than to cut them off."  International companies have also bolstered Iran's chemical weapons capability. In March, 2000, for example, the Islamic Republic contracted with the German firm Salzgitter Anlagenblau to build a 1,450-kilogram per hour phosgene generator.  While phosgene has legitimate industrial applications, it can be used in chemical munitions to cause respiratory failure.
Iran's missile program also relies on outside technology. The Shihab-3 intermediate range ballistic missile is derived from North Korea's Nodong-1 missile, modified with Russian technology.  On September 21, 2004, Iranian president Khatami presided over a military parade displaying the Shihab-3. Draped over a trailer carrying the Shihab-3 was a banner saying, "We will crush America under our feet." 
The effectiveness of Executive Order 13094 in countering Iranian proliferation is unclear. Despite repeated requests for the executive branch of the U.S. government to clear up this matter, neither the White House nor the Department of State has publicized the success of the sanctions or reported any detail regarding the effectiveness of the executive order in stopping the flow of arms to Iran.
On May 10, 2003, thirteen days before the executive order was listed in The Federal Register, a 40-foot container left the port of Tianjin, China, destined for Philadelphia. The cargo, worth $32,000, consisted of three Oriental rugs and 300 crates of Chinese antique furniture. The goods and shipping costs were paid for months prior to the announcement of sanctions. My agent in China chose to ship with China North Trading, also known as NORINCO. The reason was simple: NORINCO is one of the largest trading companies in China. As such, it is able to provide one-stop service, including freight forwarding, consolidation, shipping, and documents.
One month later, upon arrival at the Philadelphia port, the U.S. Customs and Border Patrol seized the shipment; they did not inform me of this for almost a month. Authorities of the U.S. Customs and Border Patrol, the Treasury Department's Office of Foreign Assets Control, the State Department, and even the White House concur that nothing in the shipment violated U.S. import laws.  Not only were there no weapons of mass destruction, but there also was not a single item that could possibly have any industrial use. Nineteenth century Chinese wooden cabinets do not make good centrifuges.
While authorities confirmed that I did nothing wrong while importing the shipment into the United States, its seizure was no miscalculation. Rather, it is symbolic of a U.S. failure to adopt policy that moves beyond symbolism to counter proliferation effectively.
Bush may have meant well when he targeted the shipping companies, but misdirected and uneven enforcement does little to stop proliferation, especially when the State Department considers a bargain with Iran to make available nuclear technology in exchange for a pledge not to develop nuclear weapons, sponsor terrorism, or interfere with stability in Iraq.  Retroactive sanctioning and seizure actually counters traditional U.S. practice. "Historically, as in the cases of sanctions imposed upon Sudan and Syria, a grace period was allowed at least for those shipments that were already in transit," according to Margaret Gatti, a specialist in international and U.S. Custom's law.  For example, the Anti-Terrorism and Effective Death Penalty Act of 1996 provided a 30-day delay in the sanctions' effective date for trade contracts that were concluded prior to the date sanctions were announced.  The Syrian sanctions, on the other hand, called their grace period a "savings clause," which prescribed that "items that are on dock for loading, on lighter, laden aboard an exporting carrier or en route aboard a carrier to a port of export" on May 14, 2004, the date sanctions commenced, "remain subject to the licensing rules applicable to such items" as of May 13, 2004.  The Sudanese sanctions allowed a two-week grace period by which time the export had to occur.
The retroactive sanctions may have affected a number of other companies, both large and small. While the State Department, Treasury Department, and U.S. Customs have refused to name other companies caught in the retroactive sanctions Catch-22, Phillip Saunders and Stephanie Lieggi, specialists in nonproliferation policies and U.S.A.-China relations, say that retroactive sanctions on NORINCO likely cast a large net which penalized many U.S. businesses in no way involved in proliferation:
Such companies, with ample funds for lobbying, may have been able to come to special arrangements with the Bush administration.
Almost nine months after the seizure, the office of John Bolton, Undersecretary of State for Arms Control and International Security, appeared to offer some help. In March, 2004, his special assistant, Mark Groombridge, advised that the State Department had decided to reverse its decision to seize the antiques and that the goods would be released. Groombridge wrote to my lawyer:
Despite Groombridge's promise, a month later he called to say that the State Department had again reversed its decision and that he could provide no further comment.  John S. Wolf, Assistant Secretary of State for Nonproliferation, explained the decision in a June 24, 2004, letter:
In an October 26, 2004, letter, Deputy Secretary of State Richard Armitage confirmed the decision to uphold the sanctions' retroactive clauses and not only liquidate the antiques but penalize me further with U.S. Customs' storage charges. 
The failure to provide a grace period or waiver is counter to precedent. While Wolf's commitment is laudable, the State Department has been unable to show that the sanctions have had any effect on proliferation. Indeed, the State Department seems more intent on targeting businesses, perhaps hoping to appear aggressive, while giving weapons proliferators a free hand. Talks about North Korea have bogged down as Pyongyang denies having any uranium enrichment program, despite evidence to the contrary.  On October 5, 2004, former Iranian President Rafsanjani, perhaps the second-most powerful man in Iran, announced that Iran had increased the range of its Shihab-3 missile to 1,200 miles, capable of reaching all of Israel, Turkey, or even Europe. 
The seizure of the antiques bought and shipped prior to the announcement of sanctions would be more understandable had Bolton's office shown the same diligence with regard to seized weapons cargo. On December 10, 2002, U.S. and Spanish forces boarded a freighter in the Indian Ocean. A search revealed fifteen North Korean Scud missiles hidden beneath sacks of cement. Two days later, U.S. authorities allowed the ship to proceed to Yemen, where authorities said it purchased the missiles for defensive purposes.  Unclear is why a supposed U.S. ally in the war against terror would surreptitiously purchase North Korean missiles and, if legally bought as Yemen maintained, why such cargo would be concealed. U.S. intelligence officials, frustrated with the decision of Undersecretary Bolton to allow the ship to proceed, questioned whether Yemen was the ultimate destination of such missiles. After all, Yemen has little defensive need for such weapons.  North Korea is an active proliferator, though, and its missile technology provides the basis for Iran's Shihab-3 ballistic missile. 
The U.S. State Department has also rewarded Libya, despite Mu'ammar Qadhafi's ongoing double game. Bush has cited Libya as a model of counter-proliferation success. On December 19, 2003, he revealed that, after nine months of talks, Libyan strongman Qadhafi had agreed to "disclose and dismantle all weapons of mass destruction."  The extent of Libya's illicit weapons program came as a surprise to U.S. intelligence. 
Nevertheless, Qadhafi's sincerity is questionable. Not long after Qadhafi commenced his secret negotiations with U.S. and British intelligence officials, the U.S. Navy caught his regime red-handed seeking to import equipment to enrich uranium.  Only when caught, did he come clean. Now that the Bush White House has resumed diplomatic relations with Libya,  and the European Union has lifted its arms embargo,  Qadhafi may use his new freedom to pursue old projects. The signs of Libyan sincerity are not good. Soon after Washington lifted sanctions on Libya, evidence emerged that Qadhafi sponsored a plot to assassinate Saudi Crown Prince Abdullah.  Two weeks after Bush lauded Qadhafi's release of leading dissident, Fathi El-Jahmi, as a sign of real change, Libyan security had, not only arrested El-Jahmi again, but imprisoned his wife and son as well. 
Sanctions are an important policy tool. Thomas Jefferson spoke of sanctions as one of the few policy tools short of war available to governments. If sanctions are not effective, then one step is removed on the path from diplomacy to war. The use of sanctions, as well as other diplomatic and trade policies aimed at punishing regimes, must not be so inflexible as to supersede our country's duty to correct an oversight when policy implementation brings harm to unintended targets.
The Middle East & the Problem of Iran
Jerry Sorkin is a Philadelphia entrepreneur.
The foregoing article by Jerry Sorkin was originally published in the Middle East Quarterly, Winter, 2005, and can be found on the Internet website maintained by the Middle East Forum.
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