The second problem is that both the Safe Port Act and the 9/11 Commission Act of 2007 contain a fatal flaw, the use of the word, "at." The SAFE Port Act contains 20 references to scanning containers but only two need to be used to demonstrate where the scanning is to take place. The SAFE Port Act which codified the Container Security Initiative, revealed the following:
"...scanning, and inspection protocols and technologies utilized at designated seaports and the effect on the flow of commerce at such seaports, as well as any recommendations for improving the effectiveness of screening, scanning, and inspection protocols and technologies utilized at designated seaports." (Section 205)
And with respect to scanning at U.S. domestic ports:
"SCREENING OF CARGO CONTAINERS.-The Secretary shall ensure that 100 percent of the cargo containers originating outside the United States and unloaded at a United States seaport undergo a screening to identify high-risk containers.
(2) SCANNING OF HIGH-RISK CONTAINERS.-The Secretary shall ensure that 100 percent of the containers that have been identified as high-risk under paragraph (1), or through other means, are scanned or searched before such containers leave a United States seaport facility. (Section 232)
The 9/11 Commission Act of 2007 focused on foreign ports:
"IN GENERAL.-A container that was loaded on a vessel in a foreign port shall not enter the United States (either directly or via a foreign port) unless the container was scanned by nonintrusive imaging equipment and radiation detection equipment at a foreign port before it was loaded on a vessel also mandate scanning. (Section 1701)
So why is the use of "at" so bad? For all of us outside of Congress who know something about international transportation and global supply chain security, the port is the worst and last place to find out about WMD, if one really finds out about it. We need to find out about it long before it gets to our trading partners' ports because they cannot risk an explosion in one of their major seaports anymore than we in our seaports.
The third problem is that these portal scanning machines used to detect shielded radiation do not exist, and Congress knew that they did not exist when the legislation was drafted. In referencing the requirement to scan at foreign ports, the 9/11 Commission Act of 2007 reflects the following with respect to its application:
"...shall apply with respect to containers loaded on a vessel in a foreign country on or after the earlier of--(A) July 1, 2012; or (B) such other date as may be established by the Secretary under paragraph (3)." (Section 1701)
At the present time U.S. ports utilize PVT portal machines that are very good at detecting radiation from materials such as ceramic tile but not highly enriched uranium or shielded uranium. Therefore, Congress is expecting that new portal machines will be developed and commercialized to detect dangerous radiation. These new machines, called Advanced Spectroscopic Portals (ASP), have not been yet developed. The GAO -- in April of 2007 (GAO-07-347R, Combat Nuclear Smuggling) -- stated very clearly that the Domestic Nuclear Detection Office (DNDO) established and responsible for ASP development has not even collected all the testing data on its basic PVT portal detectors and is not close to any developed ASP portal detector. Experts don't expect a commercial version of the ASP anytime soon, if ever. Congress knew the technology didn't exist. We do not have the machines now, and we won't likely have them in 5 years (in 2012). Therefore, Congress allowed for an extension until such time that these radiation portal detection machines become available.
The obvious question is: "How is that helping our security?" The follow-on question is: "Why did Congress limit scanning to seaports only with these non-existent machines?" I can say with absolute certainty that certain members of the respective House and Senate Homeland Security committees knew that this part of the legislation was inadequate, because I have electronic evidence demonstrating that I informed them how the scanning for shielded radiation can be done now without new portal-machine technology by simply using in-container technology and systems. With the use of in-container systems that can detect and report WMD, one can learn the container's risk factor long before it gets to any seaport. In fact, using in-container sensors and communication platforms allows us to detect shielded enriched uranium today (American Shipper, October, 2006, p.2-4), to reduce lines and the time it takes waiting to drive through portal machines that don't exist for WMD anyway. This would even reduce the time it takes today driving through portal x-ray machines at our seaports and land ports.