Court Overturns ITAR Conviction Based on the Vagueness of the Regulations

On June 15, 2009, the U.S. Court of Appeals for the 7th Circuit issued its decision in U.S. v. Doli Syarief Pulungan, (No. 08-3000), overturning the conviction of the defendant that was found guilty of exporting rifle scopes in violation of the International Traffic in Arms Regulations (ITAR). 

In support of its decision, the court stated that the government failed to properly identify which specific items were subject to export control regulations, or to justify the criteria for controlling them. According to the court, because the regulations were so vague, the defendant could not be held responsible for violating such vague regulations. 

The court stated that the State Department's claim of "authority to classify any item as a "defense article," without revealing the basis of the decision and without allowing any inquiry by the jury, would create serious constitutional problems." The court went on to state that in regular circumstances, a regulation is published for all to see, giving people an opportunity "to adjust their conduct to avoid liability." But, "a designation by an unnamed official, using unspecified criteria, put in a desk of a drawer, and taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian regimes." "Government must operate through public laws and regulations" and not through "secret laws," the court declared. 

Some commentators suggest this ruling could have a great effect on the export controls, as it discusses the ambiguity of the ITAR, which provide the State Department with great latitude in determining what articles are covered under the ITAR.