Is Congress legal in it demand for the Ports Review?

As we all know, Congress has its bowels in an uproar over the UAE Port Deal and has gone on a rampage against the administration. The Congress claims that the 30 day review conducted by CFIUS was not long enough and are demanding a second review of the process. However, this second review by Congress is technically in violation of the law as it is written. The Exon-Florio provision was added to "Section 5021 of the Omnibus Trade and Competitiveness Act of 1988 and amended Section 721 of the Defense Production Budget Act of 1950 to provide authority to the President to suspend or prohibit any foreign acquisition, merger or takeover of a US Corporation that is determined to threaten the national security of the United States." In other words the determination as to whether or not a acquisition should be blocked or not fell entirely upon the President, not Congress.

According to CFIUS, once they are notified, it has 30 days from initial receipt of notification to begin an extended review. Any investigations is required to end within 45 days. The Exon-Florio Provision also states that "Information provided by companies contemplating a transaction subject to Exon-Florio is held confidential and is not made public except in the case of an administration or judicial action or proceeding." Section 721 also states that nothing in this section shall prevent disclousure to Congress or other authorized committees of Congress.

In accordance to the Exon-Florio Provision, the President or his "designee" may look at certain factors in determining whether the acquistion has any effect on National Security. According to Section 837(a) of the National Defense Authorization Act for 1993 (also known as the Byrd Amendment), requires and investigation when an acquisition by a foreign government and the purchase could effect the national security of the US.

Basically, so far everything outlined has been carried out by CFIUS. It has went through the required "investigation" within the prescribed time frame listed in the requirements. It has been reviewed by all appropriate members of CFIUS and given the green light. In 1993 CFIUS was expanded to include the Director of the Office of Science and Technology Policy, the President for National Security Affairs, and the Assistant to the President for Economic Policy. In 2003 the Department of Homeland Security was also added as part of the "review board." With the addition of Homeland Security to CFIUS, the total number of CFIUS members was brought to twelve. The President retains full authority to protect the national security with respect to any deal. After full review by CFIUS and the President (not to exceed 90 days), the president is required to notify Congress whether or not he will take action under section 721.

At no time does anything in this Provision, or sections give Congress authority the override the decision of CFIUS. It says that they must be informed within a certain period of time. The organization of CFIUS was brought about to keep Congress out of the decision making process, but they were to be informed after decision was made. However, it does stated that any information submitted by the company wishing to make an acquisition be kept confidential and out of the public eye. In this particular case it would seem that Congress wishes to override a process that is part of the law, simply for political reasons. It would seem that the Congressional screams for further review are unfounded and illegal under the law pertaining to this matter.

It seems rather strange to me that this much ruckus has been made over the UAE deal, considering the fact that nothing in the manner in which security for our ports will be changed from what they already are. even longshoremen in New Jersey are totally amazed at the fuming from Capital Hill. The Coast Guard, local port authorities, unions and US Customs still retain control over the ports not the UAE. This is just a "knee-jerk" reation by Democrats and some Republicans due to the fact that it involves an Arab country. A country by the way which has been of great importance tothe US in their fight on terror in both Iraq and Afghanistan. Now Congress is trying to implement new laws (after the fact) simply because the UAE does not recognize Isreal. Many Arab countries do not formally recognize Isreal and we still deal with them. So is this all a sham before the mid-term elections? Sure has the makings of such. Please contact your representatives in Congress and stop this. The repercussions of this deal could effect more than just the UAE. It could have a dramatic effect on all of our allies in the war on terror.

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