The following is a summary of the 17th session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.
On November 21, 2021, the Congressional Study Group on Foreign Relations and National Security convened over Zoom to discuss U.S. arms sales policies and their intersection with human rights and related concerns. Few areas of U.S. foreign policy have proven more contentious in recent years than U.S. arms sales to foreign governments. Recent arms sales to countries such as Egypt and Saudi Arabia have proved particularly controversial, leading to clashes both between Congress and the Executive Branch and within Congress itself over the shape of U.S. policy in these regards. This session delved into these issues and examined possibilities for reform.
Two outside experts with extensive experience in this area joined the group for this session: Brittany Benowitz, chief counsel for the Center for Human Rights at the American Bar Association; and Brian Finucane of the International Crisis Group, who was previously an attorney-adviser at the U.S. Department of State working on political-military issues.
They recommended the following readings as relevant background prior to the session:
- Scott R. Anderson, “Untangling the Yemen Arms Sales Debate,” Lawfare (June 14, 2019);
- Nathan J. Lucas and Michael J. Vassalotti, “Transfer of Defense Articles; Sale and Export of U.S.-Made Arms to Foreign Entities,” Congressional Research Service Report No. R46337 (Apr. 30, 2020); and
- Brittany Benowitz and Alicia Ceccanese, “How States Supporting Armed Proxies Can Reduce Civilian Casualties and Protracted Hostilities,” Just Security (May 20, 2020).
A few months after the session, Benowitz co-authored a report entitled “Human Rights, Civilian Harm, and Arms Sales: A Primer on U.S. Law and Policy” that covered many of the issues discussed during the session.
Finucane began his remarks by discussing the constitutional and historical background of U.S. arms sales policies. The standard view is that Article I empowers Congress to regulate foreign arms sales. Since 1795, however, Congress has largely delegated that role to the Executive Branch. It currently does so through the Arms Export Controls Act (AECA) of 1976, which Congress passed following concerns over Nixon- and Ford-era arms sales to the Middle East, particularly Saudi Arabia (a recurring source of arms sales disputes). Though originally applicable only to government-to-government sales (which often concern the most expensive military equipment), a 1981 amendment applied the AECA to direct commercial sales as well.
Finucane described the basic bargain in the AECA as a delegation of authority to the Executive coupled with congressional power to veto any transfer via concurrent resolutions. However, the Supreme Court case INS v. Chadha (1983) upended this balance by holding that such legislative vetoes are unconstitutional. Although Congress replaced the concurrent resolution requirement with one using joint resolutions (which require presidential approval or approval from two-thirds of both houses to overcome a veto). Overcoming a presidential veto has often proved politically impossible, leaving Congress with only informal tools for influencing arms sales policies. In practice, the arms sales regime has become a “report and wait,” in which the Executive notifies Congress 30 days ahead of time and Congress has the ostensible power to reject the arms sales but can only exercise it confidently if it overcomes a likely presidential veto. Finucane lamented that even this notification period could be waived in cases of emergency, as Secretary Pompeo demonstrated in relation to 2019 arms sales to Saudi Arabia.
Finucane went on to describe problems with the current process. First, the United States typically sells arms via a “total package” approach, whereby the United States sells training, maintenance, and sustainment, as well as the weapons systems themselves. This means U.S. personnel could become active participants in customers’ wars, often making customers’ law of armed conflict violations its own—a prospect on display in Saudi Arabia’s recent atrocities in Yemen. Second, the State Department has not sufficiently institutionalized human rights vetting for arms transfers, which makes it difficult for the State Department to monitor U.S. military materiel and fully assess ways to mitigate civilian casualties. Moreover, such monitoring, while statutorily required, has no third-party oversight to ensure Executive Branch compliance.
He then raised three possible ways Congress could assert itself, though each would prove challenging. First, Congress could increase its oversight and seek more voluntary Executive Branch reporting. But the Executive Branch has often been reticent to share more information. Second, Congress could try to extend substantive controls by limiting arms sales to countries using U.S. arms for war crimes. But the Executive would still have authority to interpret whether a country was committing war crimes, interpretations which courts are likely to view as nonjusticiable. Third, Congress could try to “flip the script” by passing a statute requiring congressional authorization for certain types of arms sales. However, this would be politically challenging to pass. In addition, the Executive has raised concerns that such action would make U.S. arms sales less competitive and limit their effectiveness as a means of facilitating U.S. influence overseas.
Brittany Benowitz then spoke about four underutilized safeguards that Congress could use to limit U.S. arms sales’ detrimental effects on human rights. She focused on § 502(b) of the Foreign Assistance Act, which enables either of the foreign affairs committees to request further reporting. Currently, the State Department is required to provide a report within 30 days—a tool that neither committee has ever used. Benowitz explained how the law arguably allows any member of Congress to force a vote on a privileged resolution of disapproval of the arms sales. She believed such an action would have far more promise than a joint resolution because it could be tailored to the specific circumstances or simply require certain disclosures, rather than the dramatic option of outright rejection.
A second underutilized congressional tool is another provision in the AECA that requires the State Department to monitor the end use of its arms sales to determine if foreign assistance recipients were violating human rights. The requirement that the State Department report on where U.S. arms have been used for human rights abuses could enable Congress to focus its attention on the worst abusers. Presently, the State Department typically tries to avoid reporting on the full extent of diversion of U.S. materiel because a finding that materiel has been diverted to human rights abuses would require the State Department to halt the sale without high-level authorization. Enforcing such efforts would, however, face similar issues as the proposals put forward by Finucane, as courts are likely to deem State Department determinations relating to foreign affairs to be nonjusticiable.
Benowitz then moved on to two other means for Congress to assert greater authority but acknowledged both would face practical problems. Citing the Leahy Law limiting U.S. arms sales to human rights abusers, she conceded that it only covered training and contained many loopholes so was less promising than the AECA. She also discussed the standard congressional notification process around the AECA, acknowledging that the requirement that congressional approval or disapproval be expressed through an up-or-down vote, and the fact that a negative vote could seriously damage a foreign relationship would likely render it less practically effective.
The session then moved to open discussion, which focused on issues including the historic issues around congressional delegations of authority over arms sales to executive agencies; foreign policy considerations around arms sales, the question of using over leverage as an arms provider and the possibility of “reverse leverage” whereby arms purchasers may think we care more about the arms sales than they do; the role of partisanship within Congress on the arms sales issue; and the relationship between domestic and international law related to arms sales.
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