Part II: Arms Sales

Congress has the ability to regulate government-to-government weapons transfers and private sale of weapons to foreign countries. Congress also appropriates funding to finance foreign countries’ purchases of U.S.-manufactured weapons.

Passed in 1976, the Arms Export Control Act (AECA) gives the president the authority to regulate the export and import of defense articles and services. Executive Order 11958 delegated this authority to the State Department, which is the lead agency on arms sales regulation.¹

The AECA also says that end-use monitoring programs for arms exports should identify exports that are high risk and seek reasonable assurance that the recipient country is complying with its contractual agreements. The president must provide a report to Congress on monitoring of end-use activities, and must notify Congress if a recipient country violates the AECA.² While it is rare for a president to present such a notification to Congress, it has happened before. For example, President George W. Bush notified Congress in 2007 that Israel may have violated the AECA with its use of American-supplied cluster munitions in the 2006 war in Lebanon. Administrations have even imposed consequences for such violations: The Reagan administration put a temporary ban on sales of cluster munitions to Israel when a congressional investigation found that Israel had used cluster weapons in civilian areas in Lebanon in 1982.³

The Leahy Law says that no assistance may be provided under the AECA “to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.”⁴

Foreign military sales (FMS) are authorized under Section 3 of the AECA.⁵ FMS are government-to-government sales of major defense items. Purchases made through Foreign Military Financing (FMF; see below) are regulated under the FMS process except for purchases made by Egypt and Israel.⁶

Congress must be formally notified of an FMS sale worth $14 million or more (or defense articles or services worth at least $50 million) 30 calendar days before the finalization of the sale under Section 36(b) of the AECA.⁷ For NATO allies, Australia, Japan, Israel, New Zealand, and South Korea, there is a 15-calendar day notification window and the threshold value is higher.⁸

The State Department traditionally submits an informal or preliminary notification to the Congressional committees of primary jurisdiction for arms sales—SFRC and HFAC—before the executive branch takes any further action on the sale. Since 2012, the State Department has used a tiered review process, where the relevant committees receive an informal notification between 20 and 40 calendar days before receiving a formal notification.⁹ Informal notifications allow the State Department to consult with members prior to the formal notification period in a confidential process. These consultations allow Congress to have its concerns addressed and the State Department to ensure that a sale is more likely to pass through Congress, all while protecting the United States’ bilateral relationship with a given country by keeping Congress’s concerns confidential.¹⁰

When the chairs and ranking members of both committees have received this informal notification, their staff review the sale, and may ask for briefings from the State Department, try to get reassurances from the State Department and recipient country about how arms may be used, and/or add conditions or restrictions to a contract. At the end of this process, each of the four offices may decide to “clear” the State Department to move forward on the formal notification process of the sale, or place a “hold.” Placing a “hold” means that the office does not clear the sale and that issues may therefore come up during the formal notification process; however, these holds are a courtesy, so the administration has the legal authority to “blow” a hold, meaning they trigger the formal notification process anyway despite Congress’ objections.

Once the State Department has approved a sale and it has been informally cleared by these four offices , the Defense Security Cooperation Agency (DSCA) provides Congress with formal notification. The chair of the SFRC and the speaker of the House are legally required to receive these notifications; DoD also typically provides the notifications to the HFAC when it is submitted to the Speaker as a courtesy.¹¹ The formal notification starts the 30-day clock.¹² The Congressional notification stage typically marks the first time in the process that information around a specific sale becomes public.

Congress must pass a joint resolution of disapproval to proactively block an arms sale once it has been formally notified; if Congress fails to do so, the sale can move forward. Congress can also pass legislation modifying, conditioning, or permitting a sale through the regular legislative process at any point.¹³

Once they have received a formal notification, members of the Senate and House may introduce a joint resolution forbidding a particular sale. SFRC and HFAC then hold hearings on the legislation, and if the joint resolution of disapproval receives a majority of either the Senate or House committee’s support, it may be moved to the floor for consideration.

In the Senate, the legislation is privileged, so if the SFRC fails to report the resolution for floor consideration within 10 calendar days, a supportive senator can discharge the legislation to the floor. The legislation’s privileged status also means that there are various limits placed on debate so the legislation will receive an expeditious floor vote. In the House, this legislation is slightly more complicated: it still receives precedence over most other legislation, but the AECA has no provision for discharge from HFAC if the committee does not report the resolution to the floor for a vote. This means that HFAC must vote affirmatively to move the legislation to the House floor. ¹⁴

The successful passage of a joint resolution of disapproval requires the support of two-thirds of both chambers in order to override the expected presidential veto. While this is a high barrier to passage—indeed, Congress has never successfully blocked a sale via a joint resolution of disapproval—legislation to block an arms sale gets a privileged vote.¹⁵ Congress has never successfully blocked a proposed sale through a joint resolution.¹⁶

The president can also waive Congressional review periods if the administration determines that there is a national security emergency. In this case, the president must submit a “detailed justification for this determination, including a description of the emergency circumstances” to Congress.¹⁷ In May 2019, the Trump administration formally notified Congress of an immediate sale to Saudi Arabia and the UAE. In the justification for the determination, Secretary of State Pompeo wrote that “The rapidly-evolving security situation in the region requires an accelerated delivery of certain capabilities to U.S. partners in the region… Such transfers, whether provided via the FMS system, or through the licensing of Direct Commercial Sales (DCS), must occur as quickly as possible in order to deter further Iranian adventurism in the Gulf and throughout the Middle East.”¹⁸

The DSCA posts notices of certification notifying Congress of possible arms sales on its website.¹⁹ The Forum on the Arms Trade also has a useful notification tracker.²⁰

DCS denotes private sales between U.S. manufacturers and foreign purchasers with little U.S. government involvement, beyond monitoring and approval of transfers. As with FMS, Congress must be notified of a DCS at least 30 calendar days before an export license is issued. Jeff Abramson of the Arms Control Association notes that DCS “are not as transparent [as FMS], in part because any public notification is obscure or functionally comes after the initial review period has passed;" That is, while Congress receives notification of a sale under FMS before the contract has been finalized, whereas for DCS, the manufacturer first concludes a contract and its term and only then does the company apply for an export license. Congress is therefore essentially only able to approve or reject a DCS sale.²¹

Under the AECA, all defense items exported to a foreign country require a bilateral agreement covering the end-use of the items.²³ According to the State Department, end use monitoring “is an important component to protecting sensitive U.S. military and intelligence technologies.”²⁴

Recipients must agree to use the articles and services only for their intended purposes and not to transfer the title without the written consent of the U.S. government.²⁵ Recipients must also agree to provide the same degree of physical security to the articles as the U.S. government would, and to allow U.S. officials to verify compliance with these terms.

Congress appropriates funding for end-use monitoring programs managed by DoD to ensure that U.S. defense articles are used according to the terms of the transfer agreement. The Golden Sentry program provides end-use monitoring through FMS, while Blue Lantern monitors DCS. Golden Sentry is implemented by DoD and by Security Cooperation Organization (SCO) personnel assigned to U.S. embassies. Blue Lantern is implemented by the State Department’s Directorate of Defense Trade Controls and U.S. embassy personnel.²⁶ The State Department publishes an annual end-use monitoring report summarizing Blue Lantern’s activities.²⁷

The State Department is required to notify Congress of substantial violations of end-use agreements under Section 3 of the AECA.²⁸

The State Department, with advice from DoD, determines which items must appear on the list. Congress has oversight over changes to the USML but may not block revisions to the list.³¹

Arms exports that are regulated by the Commerce Department are also called the Commerce Control List or the “600 series.” Arms in the 600 series were previously on the USML but subsequently moved to the Commerce Department’s list.³⁶

FMF is a program that provides financing, by grant or direct loan, for foreign militaries to purchase U.S. weapons, training, and services through FMS (see above).³⁷ The AECA as amended authorizes the financing of procurement of defense articles and services. The State Department determines which countries may have FMF programs. FMS is executed by DoD.³⁸

1.Recommendation: Standardize and Increase Transparency around Congressional Notification

Under the terms of the AECA, “a major weapons sale proceeds unless Congress enacts a law to stop it. If Congress fails to pass a resolution of disapproval, and to override the inevitable veto, then the arms transfer can be finalized,” as Diana Ohlbaum and Rachel Stohl note.³⁹

While there is therefore a high barrier for Congress to affirmatively block an arms sale, there are several things Congress can do to standardize and increase transparency around the arms sales notification process and to negotiate the specifics of sales with the State Department before they are formalized. These measures can provide more information about the efficacy of arms sales as part of a broader U.S. security strategy, increase public awareness, and place pressure on the executive branch to in turn push U.S. security partners to change their behavior. For an administration that shares the goal of changing these partners’ behavior, these types of congressional measures can be a useful form of leverage to induce change.⁴⁰

Place Holds. Congress can place a hold on an arms sale before it has received a formal notification from the State Department. Informally, if the SFRC or HFAC raises concerns about an arms sale or export license, the State Department may extend the review period until the concerns can be resolved.⁴¹ These two committees can initiate and support “efforts during this pre-notification period in order to hold or amend” arms sales.⁴²

Because Congressional holds are not legislated, but are a courtesy that has been maintained as a norm, the executive is not required by law to respect them. Nevertheless, holds can be useful because they allow Congress to negotiate the terms of a sale with the executive, and give Congress time to gather information, build public awareness, and gather momentum to potentially block an arms sale via legislation. Congress can publicize impending deals via this mechanism: for example, Sen. Robert Menendez (D-N.J.), Ranking Member of SFRC, recently announced that the Trump administration is working on a deal to sell Saudi Arabia precision-guided missiles.⁴³

Hold Hearings on Large and/or Problematic Sales. While some Congressional staff deal with arms sale notifications on a day-to-day basis, discussions around notifications become public less often. In order to draw attention and engagement around arms sales, the HFAC and SFRC could instate an informal rule that arms sale notifications above a certain dollar amount, or to a list of pre-designated problematic partners (such as non-democratic regimes, or those that have been credibly accused of human rights violations), will automatically trigger an open hearing.⁴⁴

Build Congressional Capacity to Monitor Arms Sales. Congressional staff are responsible for monitoring and responding to hundreds of notifications each year. Appropriating more capacity towards this task would allow members and committees to be more strategic about selecting arms sales for informational holds and to negotiate with the State Department on the details of individual sales. Building Congressional capacity to monitor arms sales notifications will therefore require dedicated resources, including staff time.⁴⁵

Require Pre-Delivery Notification. Congress does not typically receive notifications before the delivery of equipment once a sale has been negotiated.⁴⁶ However, Congress can vote to block an arms sale at any point up to the delivery of items or services, including in the period after a sale has been finalized.⁴⁷ The chair and ranking members of SFRC and HFAC could therefore request notification before delivery. Congress gave itself the authority to receive such pre-delivery notifications at least 30 days before delivery in 2014 by writing it into the AECA.⁴⁸ However, this type of notification may have only been invoked one time, by Sens. Bob Corker (R-Tenn.) and Ben Cardin (D-Md.) in November 2015 regarding the potential sale of air-to-ground weapons to Saudi Arabia.⁴⁹

The chairs and ranking members of these committees could standardize pre-delivery notifications in order to make the entire process more transparent.⁵⁰ Additionally, because the DCS process is less transparent than FMS, “Congress could insist that, or possibly take it upon themselves to make, these potential DCS transactions more transparent.”⁵¹

2. Recommendation: Vote to Block Specific Arms Sales

Vote to Block Problematic Sales. Congress can vote to block an arms sale via joint resolution. Again, while there is a high barrier to legislatively block arms sales, a vote can serve as a focal point for public attention and can serve as leverage to change security partner behavior.

Limit Use of the Presidential Emergency Waiver. In response to President Trump’s use of the emergency waiver in 2019, both the House and Senate have introduced legislation seeking to limit how the president may use such a waiver. Legislation introduced by Sen. Menendez would limit the use of an emergency waiver to NATO, NATO-member countries, and Australia, Japan, the Republic of Korea, Israel, and New Zealand. Congress can continue efforts to pass such legislation.⁵²

3. Recommendation: Increase Funding Levels for End-Use Monitoring Programs

Via the appropriations process, Congress could increase funding for end-use monitoring programs Blue Lantern and Golden Sentry.

Condition Future Sales on Past Behavior. Congress could pledge to condition future arms sales on past behavior. For example, Congress could block sales to regimes that have been credibly found to commit violations of international humanitarian law or that have been found to violate end-use agreements. For example, in 2017 Congressman Ted Lieu introduced legislation that would have placed conditions on air-to-ground munitions sales to Saudi Arabia related to avoiding civilian casualties, facilitating humanitarian aid, and targeting U.S.-designated terrorist organizations. Similarly, the SAFEGUARD Act, S. 4712, introduced in September 2020 by Sens. Bob Menendez, Patrick Leahy, and Tim Kaine, would mandate that “No sale, export, or transfer of defense articles or defense services may occur to any country if the Secretary of State has credible information that the government of such country has committed or is committing genocide or violations of international humanitarian law after the date of the enactment of this Act."

A 2019 CNN investigation found that “Saudi Arabia and its coalition partners [in Yemen] have transferred American-made weapons to al-Qaeda-linked fighters… in violation of their agreements with the United States.”⁵³ A more robust and universal end-use monitoring system could more easily expose these types of violations, providing Congress with leverage to hold security partners to the terms of end-use monitoring agreements.

4. Recommendation: Hold Foreign Military Sales to the Same Standards as Other Kinds of Security Assistance

Under the FAA and the Leahy Law, U.S. security assistance can be restricted or cut off if it is determined that the recipient country or unit is implicated in human rights violation. Congress could require the inclusion of more stringent terms in bilateral FMS, for example by prohibiting recipient countries from using weapons and equipment in certain conflicts.