Options for Congress to Respond to Saudi Transgressions: Here’s What Works according to Former Senior U.S. Officials

What are the more effective and less effective measures that the United States could pursue in response to recent actions by Saudi Arabia? I asked several experts, including former senior officials. Their views provide valuable perspectives on how to think about some of the challenges and tradeoffs with different approaches.

Among the important insights were statements that reveal potential weaknesses in current and proposed legislation, including: legislation that relies on executive branch certification as a condition for further congressional action, legislation that excessively relies on executive branch discretion in the implementation of sanctions, and legislation that focus on more symbolic than material forms of U.S. support for the Saudi war in Yemen. Another theme that several experts raised is to think not only about sanctions to penalize Saudi Arabia for wrongdoing or sanctions to encourage responsible behavior by Crown Prince Mohammed bin Salman in the future, but to think more broadly about how to orient the U.S. relationship to Riyadh.

Purposes of new congressional action on Saudi Arabia

Despite lack of strong support from the White House, a bipartisan group in Congress seems poised to take action. Last year, an arms package to Saudi Arabia was almost blocked, missing by just 4 votes. In recent days, at least three Republican Senators who voted in favor of that arms sale—Senators Bob Corker (R-TN), Lindsey Graham (R-SC), and Marco Rubio (R-FL)—have come out strongly against Riyadh and in favor of substantive repercussions the Kingdom will likely face in light of Jamal Khashoggi’s death. Ten Republican Senators who voted for the 2017 arms sale including Corker, Graham, and Rubio, signed a letter to President Trump triggering the sanctions process against Saudi officials under the Global Magnitsy Act [John Barrasso (R-Wyo.), Jeff Flake (R-Ariz.), Cory Gardner (R-Colo.), Johnny Isakson (R-Ga.), Rob Portman (R-Ohio), Ron Johnson (R-Wis.), Jim Risch (R-Idaho)]. Also earlier this month, and over one week into the Khashoggi crisis, two other Republican Senators who had voted in favor of the 2017 arms sale—Senators Susan Collins (R-ME) and Jerry Moran (R-KS)—signed a bipartisan letter to Secretary of State Mike Pompeo challenging his recent certification that Saudi Arabia had taken sufficient steps to reduce civilian casualties to warrant the same continued U.S. support for the Saudi-coalition in Yemen.

The question now turns to what precise measures Congress should adopt in response to Saudi Arabia. The answer to that turns on the particular purposes in mind. Brian McKeon, former Under Secretary for Policy at the Department of Defense and now senior director at the Penn Biden Center for Diplomacy and Global Engagement, told me, “I think the question really is what is the goal. Is it to untie ourselves from the stain of the war in Yemen?  Or to send a broader signal to the Kingdom that there’s a price to pay for their behavior in murdering Khashoggi and then lying to everyone about it? If the former, a statute, whether in an appropriations bill or otherwise, could readily bar some or all support for the conflict. And if the policy choice is that continuation of the war is a mistake, or at least US direct involvement, then I should think members would want to ban any continued support. It would need to be combined with more pressure on KSA and the UAE to get serious about a resolution of the conflict.”

All of these purposes may now be on the table. As the latest in a series of extremely wanton acts by the Saudi leadership, the killing of Khashoggi has triggered a significant reevaluation of the U.S. relationship with Riyadh. Depending on which set of purposes Congress has in mind, an issue is what legislative measures would be more or less likely to pressure Sadia Arabia to effectuate U.S. policy goals.

Menu of options

I focused my conversations with former U.S. officials and other experts on the following set of options:

  1. Bar future foreign military sales(FMS) relating to air-to-ground strike capabilities for operations in Yemen (e.g., precision-guided munitions)
  2. Suspend existing Direct Commercial Sales (DCS) licenses relating to air-to-ground strike capabilities for operations in Yemen (e.g., for maintenance and sustainment of fighter aircraft)
  3. Bar appropriations for in-flight refuelingof Saudi aircraft conducting missions in Yemen
  4. Adopt targeted and mandatory financial sanctionsof the senior-most Saudi officials.
  5. Push for Global Magnitsky Actsanctions
  6. Other options

This list does not include suspending U.S. support for defensive weapons systems, and none of the experts suggested placing such support on the list. One former official who supported measures to suspend arms sales specially highlighted the importance of maintaining U.S. support for defensive systems to protect Saudi Arabia from threats coming over its border from Houthi militants. “We should not suspend THAAD or sale of other weapons necessary to defend the KSA from missile/rocket attacks. And we should send a strong signal to Iran that any effort to exploit this moment will be met with a harsh response,” the former official said.

One recurring theme involved concerns about predicating any approach on executive branch certification, such as the State Department’s determination that Saudi Arabia met specified conditions. A former senior official told me, “I don’t like any approach that involves certification requirements, because this administration has shown it’s prepared to certify just about anything (other than the manifest Iranian compliance with the JCPOA).”

[Editor’s note: on the Secretary of Defense’s recent certification of Saudi Arabia and the UAE actions in the Yemen war, see Larry Lewis, “Grading the Pompeo Certification on Yemen War and Civilian Protection: Time for Serious Reconsideration,” and Ryan Goodman, “Annotation of Sec. Pompeo’s Certification of Yemen War: Civilian Casualties and the Saudi-Led Coalition.”]

Options 1-3

It is important to separate option 1 (includes blocking future arm sales) and option 2 (includes suspending maintenance and logistics for existing weapons systems), because the latter may have more immediate effects on Saudi offensive military operations in Yemen. In short, Riyadh would have no readily available substitute for maintaining and servicing existing American weapons systems. On Fox News Sunday, Senator Rand Paul said, “We have incredible leverage. … They can’t last a couple of months without parts and mechanics to help them run their air force.” National Review’s David French wrote:

“American F-15s comprise close to half the Saudi fighter force, and the Saudi variant of the F-15E Strike Eagle represents a substantial portion of the air force’s striking power….They can’t just waltz over to a different country and transform their armed forces — not without suffering enormous setbacks in readiness and effectiveness during a years-long transition. A fundamental reality of arms deals is that a major arms purchase essentially locks the purchasing nation in a dependent posture for training, spare parts, and technical upgrades.”

Threatening support for Saudi Arabia’s war machine can serve a variety of purposes.

First, such levers present a potentially significant stick and carrot for achieving policy goals that are broader than the Yemen war. As Senator Macro Rubio stated earlier this month on CNN’s State of the Union, “Arm sales are important, not because of the money, but because it also provides leverage over their future behavior….They will need our spare parts. They will need our training. And those are things we can use to influence their behavior.”

Options 1-3 can also help curtail Crown Prince Mohammed bin Salman’s misadventures, if not his leadership of the Saudi government itself. Bruce Riedel, who served as senior adviser on South Asia and the Middle East to the last four presidents, explained in a recent essay, “Responsibility for the war is on Mohammed bin Salman, who as defense minister has driven Riyadh into this quagmire. Shaking the arms relationship is by far the most important way to clip his wings.” A former Obama official said as well, “The message needs to be that the relationship is being frozen unless MBS moves aside. What Yemen and the Gulf crisis and Khashoggi affair have clarified is that MBS has allows personal pique and vendettas to override any impulse to reform. He has made the region an even more dangerous place, and, left to his own devices, is very likely to drag us into regional conflict. So I would pursue 4 and 2, with the former underscoring our message that MBS needs to step aside, and the latter grounding their Air Force, to both add internal pressure on MBS and to pressure the Saudis to negotiate a resolution to Yemen.”

Options 1-3 can, indeed, serve purposes specific to the Yemen War, including distancing the United States from support for Saudi crimes and encouraging the Saudis and United Arab Emirates to finally bring the war to a close through political negotiations.

In a New Yorker Radio Hour interview with David Remnick back in March, Riedel explained, “The United States is not a direct party to the war, but we are an enabler of the war. If the United States decided today that it was going to cut off supplies, spare parts, munitions, intelligence, and everything else to the Royal Saudi Airforce, it would be grounded tomorrow.”

One former senior official suggested tying arm sales to different sets of purposes, “I think Congress should pause all FMS and end other support to the Saudi campaign in Yemen. Resumption of arms sales should be conditioned on Riyadh agreeing to a fully transparent international investigation into the Khashoggi incident, regular intelligence community assessments of Saudi efforts to reduce civilian casualties in Yemen, and a report from the administration outlining their strategy for addressing the humanitarian crisis in Yemen and producing a peaceful settlement.”

Another former senior official supported a clean break from U.S. support for the Yemen war rather than a piecemeal approach. “On Yemen, the best move would be to support the Khanna-Murphy War Powers resolution. A clean end to US military support for the Saudi-UAE war in Yemen is better than more targeted efforts to police that support (like the bar on in-flight refueling). Suspending existing DCS licenses and placing limits on future foreign military sales for things like air-to-ground strike capabilities would be a natural supplement to this approach,” the former official said.

Jeffrey Prescott, who served as Special Assistant to the President and Senior Director for Iran, Iraq, Syria, and the Gulf States on the National Security Council and now a strategic consultant to the Penn Biden Center expressed a similar perspective, “My view is that the callous murder of Mr. Khashoggi — and the Trump administration’s clear impulse to sweep it under the rug — demonstrates how far the relationship with Saudi Arabia has gotten off track, and the need for serious consequences. As a start, we could use this moment to extricate ourselves from military involvement in the disastrous war in Yemen, a step that is long overdue. Ideally we would simultaneously help push for a diplomatic resolution of the conflict – necessary, not easy, and very unlikely given how little effort the Trump administration has put into serious diplomacy. But washing our hands of involvement in the war, even in the absence of a US diplomatic push, will still put pressure on UAE and Saudi to end the conflict.”

Professor Mohamad Bazzi, who is writing a book on proxy wars between Saudi Arabia and Iran, had a similar assessment of the effectiveness of suspending US military support as a means to effectuate a resolution to the conflict. Bazzi told me, “Together, actions 1, 2, and 3 (likely in that order of effectiveness) would go significantly beyond the Obama administration’s freeze on the sale of precision-guided munitions to Riyadh in late 2016. They would signal to the Saudis and Emiratis that US military assistance will now truly become contingent on progress in political negotiations. I suspect that’s the only way Saudi and UAE leaders can be convinced to pursue a political settlement, which the Trump administration agrees (at least rhetorically) is the path to ending this war.”

Notably, in my interviews with former U.S. officials, suspension of in-flight refueling (option 3) was generally considered a weak measure on its own, treated as a supplement or afterthought to other measures. That may be due to the percentage of Saudi aircraft that actually depend on such refueling and the Saudis’ ability to replace U.S. in-air refueling with other substitutes. Concerns about the utility of option 3 as a pressure point is especially important because it is the only measure that’s triggered by section 1290 of the McCain National Defense Authorization Act if the Secretary of State fails to certify that the Saudis are taking appropriate steps to reduce civilian casualties in Yemen.

Options 4-5

A key distinction between options 4 and 5 is that the decision whether to impose sanctions on wrongdoers under the Magnitsky Act is up to the discretion of the executive branch. A former senior official told me, “The Global Magnitsky leaves an enormous amount of discretion in the hands of the executive branch.  Direct sanctions on Saudi Arabia, passed by Congress, would be a more effective approach — and even drawing up a bill may lead the executive to negotiate over how it applies Magnitsky.” McKeon made a similar point about how simple momentum on the Hill can translate into more serious action by the administration. He told me, “Congress could choose to pass sanctions by statute if the Administration resists those under the Magnitsky Act. If the Administration resists using Magnitsky, then the threat of a bill moving forward in the Congress will likely be enough to get the Administration to change course and do something, to head off something more onerous and less flexible.”

There are possible models for how major sanction legislation can be adopted.  “Congressionally mandated Iran sanctions were the basis for extensive negotiation between the Obama administration and Congress over how exactly to apply pressure. A similar model of give and take may be the best way forward here,” a former senior official told me, but he added a caveat. “That said, I somewhat agree with Jarrett Blanc’s recent argument that sanctions are a lazy tool. His piece is worth a read.” Others I interviewed also referenced Blanc’s recent piece in Politico. Blanc argues, “Sanctions will not work,” and offers instead a checklist of “four things the U.S. should do instead,” in which he proceeds to describe a more fundamental reorientation of U.S. national security policies involving Riyadh.

One question is how proposals such as Blanc’s can be translated into legislation and congressional oversight, in a sense managing to help steer U.S. policy in directions the current administration may not always want to go. In that respect, the legislative model may look more like congressional involvement in U.S. policy on Russia. Heather Hurlburt has written about the policy on Saudi Arabia, “If Washington wants to disentangle itself, there are steps it can take. The fact that those would be slow and led by Congress might actually, given the risk of instability and violence, be just right.”

In an email Prescott said, “Over the longer term, we need to rebalance our relationships in the Gulf more in line with our national interests, but that is beyond this administration.”

Is there bipartisan political will for Congress to perform its role over the long haul? McKeon, who also served as Chief Counsel to the Senate Foreign Relations Committee, said, “I think the bipartisan unhappiness with Saudi Arabia on the Hill is real and enduring. I don’t think this episode is going to blow over. The White House is badly miscalculating if they think it will.”

 

Photo credit: Secretary of State Mike Pompeo with Chairman Sen. Bob Corker (R-TN) and Ranking Member Sen. Bob Menendez (D-NJ) as he arrives to testify before the Senate Foreign Relations committee, on Capitol Hill, on July 25, 2018 (Al Drago/Getty Images) 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.