Here we go again.
One year after bypassing Congress to sell over $8 billion in weapons to Saudi Arabia, the United Arab Emirates (UAE), and other countries, President Donald Trump is preparing to again push through more problematic arms sales. This time, it’s half a billion dollars’ worth of bombs that have been used in the past to kill children in Yemen.
The proposed sale would provide Saudi Arabia with 7,500 precision-guided missiles and allow the Kingdom to manufacture high-tech bomb parts, according to media reports. This comes despite the fact that Saudi Arabia has repeatedly used these and other U.S. weapons in targeted strikes that have killed and injured thousands of civilians and destroyed livelihoods in Yemen. It follows a Pentagon announcement in May approving the proposed sale of up to 4,569 Mine-Resistant Ambush Protected (MRAP) vehicles to the UAE, worth approximately $556 million. Both sales are particularly problematic given reports of unlawful retransfers and irresponsible, if not illegal, end use by both Saudi Arabia and the UAE. Weapons sold to both countries last year were reportedly illegally retransferred to al Qaeda-linked fighters, Salafi militias, and other armed factions. Official investigations into the retransfers have not been made public, but the State Department recently cleared the UAE of wrongdoing, announcing that “the UAE now has a better understanding of its EUM (End User Monitoring) obligations.”
Unfortunately, the administration’s latest effort to ignore congressional objections and accelerate arms sales like these is not a new phenomenon. As the New York Times reported last month, Raytheon bombs – such as the Paveway precision-guided munitions included in both proposed sales – have been tied to at least 12 Saudi attacks on civilians in Yemen, including bombings of weddings, funerals, schools, and hospitals. The Times investigation showed that U.S. arms sales – aggressively promoted by Trump’s inner circle – have “helped prolong a conflict that has killed more than 100,000 people in the Arab world’s poorest nation, further destabilizing an already volatile region.”
In May 2019, the president invoked a rarely used “emergency” provision of the Arms Export Control Act (AECA) to expedite 22 arms sales to nearly a dozen countries over clear and sustained congressional opposition. Resolutions to block the most egregious of these sales were passed by bipartisan majorities of both houses, only to be vetoed by the president.
Concurrently, the House passed an amendment by Rep. Tom Malinowski (D-N.J.) to ban the sale of air-to-ground munitions to Saudi Arabia and the UAE for one year – but at the White House’s insistence, the provision was stripped from the final defense policy measure. Meanwhile, the Republican-led Senate Foreign Relations Committee passed, by a bipartisan vote of 13-9, a bill by Senators Robert Menendez and Todd Young to limit the sale of weapons to Saudi Arabia and to promote accountability for war crimes. Senate Majority Leader Mitch McConnell refused to bring the bill to the floor for a vote by the full Senate.
As we wrote last year, the Trump administration’s rationale for circumventing Congress failed to withstand scrutiny, and some of the sales in the package bore no clear relationship to the emergency being declared. It turns out that State Department Inspector General Steve Linick was investigating that very emergency declaration when he was fired, allegedly looking into whether Pompeo acted improperly in the process of developing a legal justification.
Once again, Congress is objecting to these weapons sales. After receiving informal pre-notification of the deal, both Eliot Engel, Chairman of the House Foreign Affairs Committee, and Menendez, ranking member of the Senate Foreign Relations Committee, are seeking to block final approval. They are calling for a bicameral investigation into last year’s emergency declaration and “what appears to be a politically motivated act of retaliation designed to protect Pompeo,” referring to Linick’s firing. While respecting such committee “holds” on proposed arms sales is a courtesy, rather than a legal obligation, a White House decision to ignore these objections would be regarded as an assault on congressional prerogatives.
But the truth is that such an executive branch assault is likely to go unanswered. The inability of Congress to stop these weapons transfers is not a bug in the system, it’s a defining feature. No matter how deadly the equipment or how abhorrent the end-user, Congress has never before been able to muster the two-thirds vote of both houses that is required to stop a sale the president is determined to complete.
Under the procedures set out in the Arms Export Control Act, 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. In other words, the default is for arms to be sold.
But Congress made this law, and Congress can change it. Instead of trying to stop an objectionable sale, Congress could flip the script and require that sales obtain affirmative congressional approval. In the face of congressional inaction, an arms sale would be halted. That was, in fact, the premise behind a bill introduced by then-Senator Joe Biden in 1986.
Realistically, it is hard to imagine individual votes on the hundreds of proposed sales each year that require congressional notification. It is possible, however, to define a subset of these sales that, because of the nature of the equipment or the previous or potential conduct of the buyer, pose substantial risks of abuse. Those risks include that the weapon would abet war crimes, violations of human rights, or humanitarian law; fuel corruption; enable aggression; escalate regional tensions; or be retransferred to an unauthorized third party. Congress could retain the disapproval procedure for routine sales to allies, while adopting a new approval procedure for the sales most likely to raise concern. Approvals could even be bundled to avoid the necessity of multiple votes. With such a system in place, Congress could stop sales by inaction – that is, by doing nothing.
Such changes to current law would still require support from a veto-proof majority of both houses, which remains a very high bar. However, divorced of the politics around a specific sale or a specific recipient, it could be easier for Congress to claw back its own decision-making powers. Given that 58 percent of U.S. voters want their government to stop selling weapons to authoritarian regimes that commit human rights abuses, Congress could make this change with broad public support.
Facing a slew of troubling new arms sale notifications during the COVID-19 crisis – over $9 billion in 15 separate deals since March alone – Congress could save itself a host of headaches by simply reversing the burden of proof. Arming the world’s worst human rights violators shouldn’t be something the United States does by default.