DOJ is delivering a hard lesson to two former U.S. military pilots: teaching Chinese military pilots to fly can be an illegal export and a crime for which you get arrested.
Most people think export regulations only control the export of things: equipment, software, or technical data.
But that is not the case, and one example of an export that does not always come to mind is providing defense services. Under the U.S. Arms Export Control Act and U.S. International Traffic in Arms Regulations (ITAR) defense services is a legally defined term and it includes providing military training to foreign militaries whether regular or irregular such as:
- formal or informal instruction
- providing training through correspondence courses, training aids or exercises
- providing technical, educational, or informational publications or media
- giving military advice.
This means that, undertaking these activities is a controlled export even if:
- no documents are provided
- no hardware is demonstrated or provided
- no software or technology is provided.
If you are a U.S. person whether in the U.S. or in another country providing training or other defense services to a foreign military, even if not an organized foreign military, without an export license it can be a crime. It is also a crime carrying stiff penalties in the UK, Germany and Belgium.
Two former U.S. military pilots are learning all about this:
- In 2017 DOJ accused a former U.S. Marine Corps pilot of providing aviation training to Chinese military pilots through a flight academy. He supposedly trained Chinese military aviators on, among other things, taking off and landing on aircraft carriers.
In 2022, the former Marine pilot was detained in Australia and is now fighting extradition to the U.S. to be criminally prosecuted.
- Just this year, DOJ arrested a former USAF pilot and accused him of doing the same thing – training pilots for the Chinese People’s Liberation Army Air Force.
In both cases – DOJ claims that the pilots were providing defense services, military aviation training to the Chinese military and they did so without being registered under ITAR and without having a license. Doing so, DOJ says is a crime.
The U.S., NATO nations and our partners and allies down under have all been worried about China recruiting military personnel to train their forces. So much so that ODNI’s National Counterintelligence and Security Center along with Canada, New Zealand, Australia and the UK actually put out an alert: Safeguarding our Military Expertise explaining that China is actively looking to have former military personnel train their military personnel. The alert explains that some companies are banned from doing business with the U.S. and our allies and partners because they are recruiting military persons to train the Chinese military. Some of the companies operate in Africa and obscure their relationship to the Chinese military. China is actively recruiting military personnel from these countries through:
- private consulting firms
- aviation training companies
- headhunters
- professional networks
- former colleagues.
And once they get someone interested, they offer lucrative contracts.
Bottom Line:
Your people can get arrested and charged for a crime for providing defense services without a license. And as DOJ, the alert, and U.S. Air Force general officers note training Chinese military aviators enables China to advance its capabilities, to the detriment of the U.S. and our partners and allies. In the event of a conflict with China, this type of training exposes U.S. military pilots to an increased risk of harm.
If you are in aerospace, defense, provide consulting services or training in defense or aerospace identify and manage your risks:
- Make sure you understand what defense services include.
- Determine if your company is providing defense services.
- If providing defense services vet your end users and consulting or training firms you team with.
- Don’t provide defense services to a foreign military, regular or irregular, unless you are registered with ITAR and have obtained an export license to do it,
- Even if your business is overseas or your people are overseas, ITAR still applies if your company is a US business or your employees are US persons.
- Develop risk profiles for the countries where you work – see above – CHINA IS AGGRESSIVELY LOOKING for training.
- If you craft a nice tight statement of work making clear you are not providing defense services – LOOK OUT FOR SCOPE CREEP.
- Train your people to be alert – especially veterans since former military personnel are the primary recruitment targets.
- Document your analysis contemporaneous to the decision to provide the services, it will show you were thoughtful and considered the law.
- Since pilots and flight engineers are the most recruited, give some consideration when posting details on your experience, training, and stay alert to reach outs on LinkedIn or otherwise. Remember, if you have a security clearance, a reach out may require a disclosure because of a foreign contact.
