An “Emergency” Arms Deal: Will Congress Acquiesce in Another Blow to Its Authority?

When it comes to the war in Yemen, Congress has made its feelings known: It wants to end any U.S. participation, as well as block the sales of weapons to the countries carrying it out. In April, both the House and Senate passed a bipartisan resolution that would end U.S. military involvement in the Saudi-led coalition. Lawmakers were concerned not only by the devastating humanitarian toll of the war, which has resulted in an estimated 233,000 deaths – more than half of which are children under five – but also by the lack of statutory authorization for U.S. military engagement there.

What did President Donald Trump do? He responded by upping the ante. He not only vetoed the joint resolution, but then declared a national emergency, citing tensions with Iran, so that he could bypass Congress and sell over $8 billion in weapons to Saudi Arabia, the United Arab Emirates (UAE) and other countries. It is safe to assume that these sales will bolster the Saudi-led coalition in Yemen, helping it prosecute the war against the Houthi rebels. American and British bombs have been directly responsible for the deaths of  more than 200 Yemeni civilians, including at least 122 children, but this number only includes  incidents where field researchers were able to identify weapons remnants, conduct interviews and analysis, and provide conclusive documentation. The actual number is likely much higher, and this arms deal will only push it up even more.

To do this, Trump announced on the Friday before Memorial Day that he was utilizing a rarely invoked “emergency” provision of the Arms Export Control Act (AECA), which allows the president to proceed with arms transfers without the legally mandated congressional oversight. The emergency declaration will allow 22 arms sales to nearly a dozen countries to go forward without a period for congressional review.

Some of the proposed sales had been blocked by Sen. Robert Menendez (D-N.J.) for nearly a year, including precision-guided munitions for Saudi Arabia and the UAE. Menendez had written to Secretary of State Mike Pompeo and then-Defense Secretary Jim Mattis in June 2018 of his concern that “our policies are enabling perpetuation of a conflict that has resulted in the world’s worst humanitarian crisis.” Placing a “hold” on arms sales is an informal procedure by which certain committee chairs and ranking members can register their opposition to proposed arms transfers, obtain additional information, and negotiate changes to or conditions on the package. Presidents typically respect these holds as a courtesy, since the procedure is not a matter of law, and because overriding them can provoke retaliation on other, often unrelated matters.

Other sales in the package bear no clear relationship to the emergency being declared about Iran. One would permit the transfer of bombs from UAE to Jordan, and another is designed for use in UAE counterterrorism operations. Some involve manufacturing and coproduction agreements, which would take years to bear fruit and would benefit countries that are not directly affected by heightened tensions in the region, such as Spain, France, Italy, Korea and Australia.

The AECA lays out the rules for making arms transfers and establishes regulations, processes and procedures for their approval. Under the law, the executive branch (through the State Department) must formally notify Congress of a potential major arms sale, if it’s valued at $14 million or more, at least 30 days before finalizing a transfer agreement or issuing an export license. Certain exceptions are made for close partners and allies – including NATO Member countries – in which the value threshold for congressional notification is higher and prior notice is not required until 15 days before concluding an agreement. With this advanced notice, Congress can pass legislation to modify or block a proposed sale, in the absence of which a potential weapons transfer is generally free to move forward.

The law also allows the president to waive the 30-day review requirement by notifying Congress that “an emergency exists which requires that consent to the proposed transfer become effective immediately in the national security interests of the United States.” This emergency provision requires the president to provide a detailed justification “of the emergency circumstances which necessitate immediate consent to the transfer.”

Though not invoked regularly, the provision in the AECA was also used in the 1970s and 1980s to push through arms sales to the Middle East. In 1979, the Carter administration used the provision to transfer aircraft, tanks, armored personnel carriers and training to Yemen, following attacks on North Yemen by forces of South Yemen using weapons supplied by the Soviet Union. And in 1984, the Reagan administration sold missiles, and requisite training to Saudi Arabia, “amid escalation of the Iran-Iraq war that featured Iraqi attacks on Iranian oil facilities and Iranian attacks on Kuwaiti and Saudi ships,” according to the Congressional Research Service. In both cases, the “emergency” declarations followed situations with clear conflict escalation and active attacks.

Today, the Trump administration is claiming that the situation with Iran is so tense, there is no time for Congress to review these controversial sales. Yet its memorandum of justification is mostly a recitation of old news, even admitting that the threat posed by Iran’s actions have “long been acknowledged.” It cites only “a number of troubling and escalatory indications and warnings from the Iranian regime” and a recent announcement in Houthi-controlled media of “the Houthis’ intent to target Saudi ARAMCO infrastructure” as indications of a heightened threat to U.S. interests. But, these nebulous signs of Iranian hostile intent arose against a backdrop of escalatory measures by the Trump administration, which the U.S. military and Intelligence Community warned would have consequences.

With all of this in mind, what exactly has changed to warrant an emergency declaration for additional arms sales to Saudi Arabia and the UAE? It is not as if the Trump administration has been unable to make arms deals with the Middle East up until now. Since taking office, the Trump administration has approved more than $20 billion worth of arms sales to Saudi Arabia and approximately $5 billion worth of sales to the UAE.

The principal beneficiary of the emergency declaration appears to be the U.S. defense industry. Companies including Raytheon – which is the primary supplier of the missiles and bombs mentioned in the sale notifications – along with Boeing, Thales USA, General Electric, and Booz Allen Hamilton, will all have big paydays from these sales. However, foreign manufacturers and governments will benefit as well through co-production and offset arrangements.  It is less clear that there would be a significant impact on U.S. jobs.

What Should Congress Do?

Congress is not without options in responding to this assault on its powers, however. Republican and Democratic senators are joining together to disapprove all 22 “emergency” sales proposed by the president. Even if there is insufficient time to pass resolutions of disapproval for these particular sales before the agreements are signed, Congress could pass a law to prohibit the delivery of these weapons systems. It could also override the president’s veto of its resolution to end U.S. military participation in the Saudi-led war in Yemen, which would require the support of Republican senators. It could impose a ban or strict conditions on all future weapons sales to Saudi Arabia and the UAE. And it could rewrite the procedures for consideration and review of arms sales. Instead of allowing weapons to be transferred unless two-thirds of both houses vote to override the inevitable presidential veto of attempted blocking legislation, Congress could treat major arms sales with at least the seriousness it treats trade agreements, which require affirmative congressional approval to move forward. In short, Congress must fight to reclaim its relevance as an active participant in foreign policy and national security decisions.

Returning from its Memorial Day recess, Congress has no lack of foreign policy emergencies to respond to – walking the administration back from the brink of war with Iran chief among them. But if it can’t stand up to protect its own prerogatives on arms sales, then its chances of being heard on anything else will be permanently diminished.

Photo by Kevin Dietsch-Pool/Getty Images

 

About the Author(s)

Diana Ohlbaum

Senior Strategist and Legislative Director for Foreign Policy at the Friends Committee on National Legislation, Chair of the Board of the Center for International Policy - Follow her on Twitter (@dohlbaum).

Rachel Stohl

Managing Director at the Stimson Center and directs the Center's Conventional Defense Program Follow her on Twitter (@rachelstohl).