How the “Arms Sales Oversight Act” Could Prevent American Arms from Contributing to the Next Overseas Crisis

The debate over U.S. complicity in Yemen’s humanitarian catastrophe is coming to a head in the Senate, with a series of votes on the Sanders-Lee-Murphy war powers resolution. But beyond this immediate measure, other members of Congress are planning to increase their long-term leverage over weapons sales to problematic security partners. Foremost among them, Representatives Ted Lieu (D-Calif.) and Jim McGovern (D-Mass.) recently introduced House Resolution 7080, the “Arms Sale Oversight Act,” to little fanfare. The bill’s unassuming title and procedural focus should not escape the attention of conventional arms control advocates. If passed, H.R. 7080 would expand Congress’s constricted ability to vote down damaging arms sales and mark a first step toward preventing the United States from exacerbating the human cost of conflict.

The legislation would reform Section 36 of the Arms Export Control Act (AECA) to ensure that any supportive representative can move to discharge a joint resolution of disapproval against a proposed arms sale ten days following its introduction if the presiding committee fails to report it. Win the vote in the House, pass the same joint resolution in the Senate (or vice versa), and Congress has successfully exercised its primary legal means of immediately barring a harmful transfer (whether or not the White House agrees).

The measure could dramatically reshape congressional authorities over arms exports. Currently, due to a separate AECA provision, only senators are guaranteed a vote on a joint resolution of disapproval. Absent H.R. 7080’s proposed reform, corresponding House resolutions will remain “highly privileged”—which means that those seeking to stop a transfer at present can only secure a vote only if leadership acquiesces.

This inter-chamber imbalance not only robs representatives of a vote in determining U.S. foreign policy, but also diminishes the efforts of conventional arms control advocates in the Senate. Because joint legislation from the House is unlikely to see the floor, Senate efforts can be reduced to signaling opposition to, rather than truly shutting down, an administration’s proposed sale.

By correcting this imbalance, H.R. 7080 will open another avenue to ending U.S. enabling of other governments’ gross violations of international humanitarian and human rights laws. Nowhere is this avenue more needed than for Yemen’s internationalized civil war. There, parties to the conflict routinely conduct indiscriminate attacks on civilians and have created a humanitarian crisis that has pushed millions to the brink of starvation. Yet, it is Saudi Arabia and the UAE, using U.S.-manufactured weapons and logistical support, that have caused the majority of the conflict’s recorded civilian casualties. Causing further concern, a new documentary aired by Deutsche Welle, presents credible evidence that the coalition states have diverted U.S.-manufactured armored vehicles to unaccountable non-state militias.

Admittedly, the Senate has rarely made a serious attempt to block an arms sale by resolution of disapproval, but support for exercising greater Congressional oversight over arms sales seems to be on the rise. And even when a resolution of disapproval fails to pass, mere consideration of the legislation can send clear signals to the executive branch and recipient countries alike, and can stimulate valuable policy debate. While S.J. Res. 39, a 2016 effort to block tank sales to Saudi Arabia, mustered 27 votes, S.J. Res. 42, a June 2017 measure to freeze a sale of precision-guided munitions to Saudi Arabia, garnered 47. The administration has not moved forward with a further sale of as many as 120,000 precision munitions to both Saudi Arabia and the UAE due to Senate opposition; the weapons’ traceable serial numbers, as damning as “made in the USA” stickers, could embroil the United States in further strikes on buses, hospitals, and homes. While the threat of unicameral opposition has worked for now, the reforms advanced by H.R. 7080 would further increase the chances for debate on arms sales in the Congress, and create a more efficient path for the House and Senate to indefinitely arrest a sale. Had the procedures outlined in H.R. 7080 been in place in June 2017, H.J. Res. 102 (the House companion to S.J. Res. 42), could have forced a vote on a motion to discharge instead of dying quietly in committee, creating a debate that, as it did on the Senate side, swayed moderate offices against the sale and focused a news cycle on U.S. complicity in Saudi-led coalition attacks on civilians.

While the most recent and egregious example, Yemen is not the only case where enhanced Congressional oversight is necessary to add reasonable constraints to the arms sales process. By some credible estimates, the United States sells arms, including bombs and missiles, to at least 62 countries that are an active party to a conflict. Some countries to whom the United States sells arms, such as Bahrain and Egypt, have demonstrated a consistent pattern of human rights violations; others present a very clear risk of misuse or diversion, or even the potential for mass atrocities. And some countries with lower levels of capacity simply require a greater degree of due diligence to ensure equipment can be used appropriately. If H.R. 7080 makes it more likely that Congress could exercise more meaningful oversight in even a handful of these cases, the risk of U.S. complicity in human rights abuses or the next humanitarian disaster, wherever it is, could be meaningfully diminished – and at minimal opportunity cost.

H.R. 7080 does not have to become law this Congress to have an impact – advocates should view it as an organizing tool around which to rally, and that could ease the way to reforms small and large which can check the executive’s nearly unfettered prerogative to sell weapons to any regime, regardless of their crimes. To begin, H.R. 7080 does not have to pass for next year’s House to respect its provisions as an intra-chamber rule: regardless of eventual passage, Democratic leadership should open this procedural path to the floor for joint resolutions of disapproval as a matter of course.

Furthermore, if H.R. 7080 is reintroduced in the 116thCongress, it should be resurfaced alongside a host of measures to strengthen Congress’s hand in overall arms export policy. These can include requiring detailed and unclassified answers from the departments of State and Defense concerning the likelihood that a sale of certain items will exacerbate armed conflict or spur an arms race (theoretically a judgment the executive already makes under AECA) and outlining robust processes for monitoring the way weapons’ are used among recipients with a history of rights violations or violations of the laws of armed conflict, and those for which the indicators suggest a high risk of future violations. Congress should also consider lowering notification thresholds, so that members can vet arms sales valued at less than $50 million. The time is also long past for Congress to unequivocally clarify that the Leahy Law applies to Foreign Military Sales (FMS) and Direct Commercial Sales (DCS), thereby prohibiting State and Defense from permitting the transfer or maintenance of defense articles to security forces that have committed unconscionable human rights violations with impunity.

There is no simple trick to ending the devastation yielded by the war and intervention in Yemen, which has directly killed at least 57,000, contributed to the further deaths of tens of thousands of children per year from preventable causes, and threatened 14 million with famine. Yet without a congressional freeze on weapons to the coalition states, there will never be enough political space for peace negotiations to take root. So long as short-term profit motive driving executive branch arms sales policy supersedes a reasonable modicum of self-restraint, the Congress, and H.R. 7080 present the best opportunity to limit the risk that American weapons will be involved in – or aggravate – both Yemen’s catastrophe and the next humanitarian crisis.

Photo of U.S. President Donald Trump and Saudi Arabia’s Crown Prince Mohammed bin Salman announcing U.S. arms sales on March 20, 2018, by Mandel Ngan/AFP/Getty Images.

 

About the Author(s)

Daniel R. Mahanty

Director for the U.S. program at the Center for Civilians in Conflict; served at the State Department (1999-2015); led the creation of the Office of Security and Human Rights in the Bureau of Democracy, Human Rights and Labor. Follow him on Twitter (@danmahanty).

Eric Eikenberry

Director of policy & advocacy at the Yemen Peace Project, Follow him on Twitter @YemenPeaceNews.