Nevertheless, as with the radio module case mentioned, the U.S. Department of Justice is working with Immigration and Customs Enforcement (ICE) and the Commerce Department to use the export-control regulations to keep components out of the hands of IED builders.
Private sector. As with substance controls, law enforcement cannot fight the export-control battle alone; U.S. exporters should accept some responsibility for preventing their products from entering the IED supply chain. Poblete says exporters who trade in components that could be used in IEDs should develop an internal compliance program to ensure that they do the neccessary due diligence before selling components overseas. Exporters need to understand the government’s regulations and cross reference a buyer’s information with government export control lists to ensure that they are not selling components to a prohibited country, company, or individual.
Export attorney David Hardin of Miller & Chevalier Chartered in Washington, D.C., says that exporters of items that could end up in IEDs should conceptualize the compliance process as two buckets. The first bucket is the items list. Companies exporting possible IED components commercially should first check the Commerce Department’s Commerce Control List to determine whether they need a license to export a particular item. They should also consult the U.S. Munitions List administered by the State Department if they believe their items could be considered military-grade.
The second bucket is the party list, against which companies should cross reference their buyers as well as the buyer’s customers if possible. These lists are kept by the Commerce Department’s Bureau of Industry and Security (BIS), the State Department, and the Treasury Department. BIS maintains the Denied Persons List, the Entity List, and the Unverified List.
Companies cannot export to anyone on the Denied Persons List. Parties found on the Entity List can trigger the need for the exporter to get a license from BIS before proceeding with the sale. Those on the Unverified List should trigger a “red flag” by the exporter because it means that BIS hasn’t been able to verify previous transactions.
Companies are also prohibited from exporting defense articles to anyone on the State Department’s Debarred List, maintained by Directorate of Defense Trade Controls. Companies are prohibited from doing business with anyone on the Treasury Department’s Specially Designated Nationals list. By checking these lists, a company can prove that it did its due diligence if the FBI or ICE later comes calling because one of the company’s components made its way into an IED.
Companies also need an audit trail. Good record keeping will help federal investigators try to map out where the component was diverted within the supply chain and who was responsible. Sometimes a buyer will not come up on any list but where the transaction somehow raises suspicions, “trust your gut and always err on the side of caution,” recommends Hardin.