More on Port Management

The proposed legislation to ban foreign-government-owned firms from managing US ports has been defended by some as a national security measure. At some level of generality, of course, GATT law regards national security claims as self judging and therefore unreviewable (I have a discussion of this issue in my forthcoming book, The Limits of Leviathan: Contract Theory and the Enforcement of International Law, with Robert Scott, Cambridge University Press 2006, plug, plug). But let's put aside the question of whether the US would prevail in a WTO dispute settlement proceeding, were this legislation enacted. One might still ask whether it is productive to discuss this issue as one involving national security. Port security, of course, is a grave issue, and everything I know leads me to believe that the governments of the United States and its allies have addressed it insufficiently. But does a categorical rule excluding state-owned firms advance national security? We trust other state-owned firms (the Army, the Navy, the Air Force, the Coast Guard, the police) with protecting us from danger. Is it the problem rather the foreignness of the owning state? We rely on allied arm forces in almost every aspect of our national security, and foreign personnel are serving alongside US forces around the globe, in combat as well as elsewhere. Is it the UAE? Its subjects were involved in the 911 attack, but U.S. citizens served with the Taliban in Afghanistan, and Mr. Padilla is accused (perhaps unjustly) of some terrible things.
My larger point is that protectionism is a national security issue. I want port management to be the best it can be, with maintenance of security being one of the principal criteria [here I use the word correctly] for determining the quality of performance. Restricting competition for these services disserves the goal of getting the highest quality performance. It is one thing to isolate particular service providers (say, those owned by Syria, Iran, North Korea or Cuba) for national security reasons. But all foreigners? All Islamic foreigners?
I wish to state that I have no way of knowing whether the US government has made an adequate inquiry into this matter, or whether Dubai Ports World would be a desirable successor to Peninsular and Oriental. I have no dog in that fight. But the proposed legislation goes way beyond the current tempest, and raises problems similar to the those generated by the Exon-Florio legislation of the 1980s. Indeed, in some ways the proposed legislation is worse, because, if press reports are accurate, it will not provide for an administrative override.