The Trump administration has formally notified Congress that it plans to move forward with the sale of up to 50 F-35A Joint Strike fighters to the United Arab Emirates. The sale is significant both in terms of its size and its potential implications for U.S. national security interests in the Middle East. Including related sales of armed Unmanned Aerial Vehicles (UAVs) and munitions, the sale could be worth up to about $23 billion — by contrast, the U.S. notified a total of $19 billion in sales to the UAE between 2015 and 2019, according to Security Assistance Monitor.
Congress can play an important role in ensuring that the F-35 sale proceeds in ways that are not harmful towards U.S. national security interests. Under the 1976 Arms Export Control Act (AECA), the president must notify Congress of all arms sales above a certain dollar threshold. Congress can vote to block a sale entirely, although it has never successfully done so.
Nevertheless, this process gives Congress significant leverage over the terms of arms sales: for example, Congress can negotiate with the administration to extract concessions from the purchasing country on how the weapons will be used and secured, or it can directly legislate conditions or restrictions on a sale.
There are two key sets of issues that are raised by the potential F-35 sale. First is Israel’s “qualitative military edge,” or QME, and the potential to set off a regional arms race. Second, there are ramifications of sharing sensitive U.S. defense technology with a non-U.S. ally and related end-use issues to consider. Congress must use its leverage in the process to adjudicate these concerns and determine whether this sale will be a net benefit to U.S. national security interests.
QME and the Possibility of a Regional Arms Race
The sale of the F-35A Lightning II has engendered so much scrutiny in part because these aircraft are “the United States’ most advanced stealthy, fifth generation combat aircraft.” But to the countries that purchase them, the prestige of receiving the F-35s is just as important as their capabilities. As Dr. Jennifer Spindel, an expert on U.S. weapons sales, has shown, the United States uses the sale of its most advanced weapons technology as a means of conferring status on allies and security partners. Countries that want to be held in higher esteem by the United States vie to purchase these advanced weapons as a symbol of the strength of their security relationship with the United States.
But this particular sale of F-35s to the UAE has drawn additional scrutiny from Congress due to the effect it could have on maintaining Israel’s QME — and how the sale could set off a regional arms race.
The United States has committed to maintaining Israel’s QME in the region over the past several decades, a requirement that was formally enshrined in U.S. law in 2008. In terms of U.S. arms sales, the commitment to maintaining Israel’s QME has operated in practice in several ways. The United States has, for example, in practice offered Israel first access to U.S. defense technology of all states in the Middle East region, and when Arab states have acquired the same platform, Israel typically first receives a more advanced or customizable version of the platform.
Congress has historically played an important role in debates around maintaining Israel’s QME. In the debate around the 1981 sale of AWACS (Airborne Early Warning and Control System aircraft) to Saudi Arabia, for example, Congress got President Reagan to promise that Saudi Arabia would agree to additional conditions on how the aircraft would be secured and used.
The sale of the F-35 to the UAE was made possible by the signing of the Abraham Accords, an agreement between Israel and the UAE to normalize relations that was broadly welcomed by the United States across partisan lines. Although Israel’s Prime Minister Benjamin Netanyahu denied it, Israeli media sources reported that Netanyahu had secretly agreed to the sale as an unwritten condition of the Accords.
But Israel is currently the only state in the Middle East that has F-35s. Thus, the UAE sale could substantially alter the regional balance of military capabilities. As the Trump administration’s notification to Congress itself acknowledged, the proposed sale would represent “a significant increase in capability and will alter the regional military balance.”
However, the solution to the QME problem — namely selling Israel additional weapons — could also deepen the problem of a potential regional arms race. In discussions with the Israeli Defense Ministry, the Pentagon has apparently promised to maintain Israel’s QME by providing Israel with additional weapons. The Washington Post reported that, according to Israeli media sources, the Israeli army “is preparing to present the United States with a shopping list of advanced military hardware that would ensure Israel keeps its military edge…[including] advanced munitions and expedited delivery of V-22 Osprey tilt-roto aircraft, combat planes and other weapons.”
The sale could also provoke an intra-Arab Gulf state arms race. The prestige conferred by being able to purchase F-35s will make them desirable for other U.S. security partners in the Gulf. Qatar, host of the U.S. Combined Air Operations Center (CAOC) and CENTCOM’s Forward Headquarters at Al Udeid Air Base, is engaged in an ongoing diplomatic crisis with the UAE, Saudi Arabia, Bahrain, and Egypt since these states severed diplomatic relations and enacted a blockade of Qatar in 2017. Predictably, Qatar has expressed “concerns” about the sale to the Emirates. Doha has also reportedly formally requested F-35s for itself.
With no end in sight to the intra-Gulf diplomatic crisis, while the United States is unlikely to sell F-35s to Qatar without a corresponding normalization agreement with Israel, it will likely have to offer other arms and security support to reassure Qatar. Other Gulf countries could also put in requests for F-35s as a sign of the importance of their bilateral relationship with the United States. The sale could therefore spur an arms race in the region that will be difficult for the U.S. to put the brakes on.
Sensitive Defense Technology and End Use Issues
Some members of Congress have also raised concerns that the sale could mean that sensitive U.S. defense technology is at increased risk of falling into the wrong hands. As Senator Chris Murphy noted, the UAE “has a history of giving U.S. weapons to extremist militia groups.”
In Yemen, CNN reporting found that the UAE and Saudi Arabia have transferred American-manufactured weapons to fighters with links to al-Qaeda and other hardline Salafi militias, a violation of the end-use agreements that these countries must sign in order to purchase U.S.-manufactured arms. These agreements are intended to protect sensitive U.S. military and intelligence technology from falling into the hands of opponents.
There are also concerns that transferring this advanced technology to the UAE, a country that also has security ties to China and Russia, could “give U.S. adversaries the opportunity to acquire, observe, or exploit sensitive U.S. technologies.” This issue has emerged with other U.S. partners around F-35s as well: the Pentagon stripped Turkey, a NATO ally, of its industrial participation in the F-35 in 2019 in response to Turkey’s move to acquire the S-400 air defense system from Russia. U.S. officials were concerned that the deployment of the S-400 could expose some of the F-35’s classified technology to Russian intelligence gathering efforts. Similarly, the UAE signed a strategic partnership with Russia in 2018 and has since purchased Russian missile defense systems.
Aside from the need to protect the F-35’s classified advanced technology, the sale’s other elements also warrant scrutiny in terms of how they might actually be used. Amnesty International recently reported that the sale of armed drones to the UAE “could make [the] U.S. responsible for more deaths of civilians in Yemen and Libya.” In Libya, my New America colleagues report that the UAE conducted up to 67 drone strikes between June 2018 and February 2020, accounting for up to 167 civilian casualties. UN experts have said that the UAE has violated a UN arms embargo in Libya while supporting the forces of Khalifa Haftar, who launched an offensive against the UN-backed Government of National Accord (GNA) in Libya in 2019.
The importance of Congress’s role in this sale is heightened by the Trump administration’s approach to arms sales to Gulf security partners like the UAE and Saudi Arabia. The Trump administration has treated arms sales in a transactional way, seeing them largely as a booster for American jobs and an incentive for political agreements like the Abraham Accords. This approach almost entirely neglects potential ramifications of the sale for U.S. interests in the Middle East region. Instead of working with Congress to evaluate and address these national security concerns, the administration has tried to rush the sale through the lame duck session to meet apparently arbitrary political deadlines.
Fortunately, Congress has already started to push back. Sens. Bob Menendez and Jack Reed, respectively the ranking members of the Senate Foreign Relations and Armed Services Committees, wrote a letter to Secretary of State Pompeo and then-Secretary of Defense Esper in October raising concerns that “the administration appears to be ignoring long-standing, deliberative, internal U.S. processes for considering whether selling such a sophisticated and mission-critical military system abroad could compromise the United States’ national security interests.”
And on November 18th, a bipartisan group of lawmakers in both the Senate and House introduced several resolutions that would block the sales. A statement from Senator Bob Menendez, the Senate Foreign Relations Committee’s Ranking Member and one of the resolution’s sponsors, said “There are a number of outstanding concerns as to how these sales would impact the national security interests of both the United States and of Israel. As a result, Congress is once again stepping in to serve as a check to avoid putting profit over U.S. national security and that of our allies, and to hopefully prevent a new arms race in the Middle East.”
A resolution to block the sale would have to have enough votes to overcome the inevitable presidential veto, an almost insurmountable barrier. But this legislation will nevertheless serve as an important focal point to channel Congress’ concerns about the sale. It also sends an important signal to the incoming Biden administration that members of Congress on both sides of the aisle will remain engaged on arms sales.
Members of Congress have also introduced legislation in the House and Senate that would require the White House to certify that the sale does not alter Israel’s QME and that the purchasing country has not acquired foreign technology that could compromise the security of the F-35’s advanced technology, among other requirements.
Nevertheless there is more that Congress can do, now that it has been formally notified of the sale, to make sure the potential adverse national security effects are adequately vetted and that the sale has guardrails in place to prevent these effects. Congress can demand that the sale include additional reporting around its potential effects on Israel’s QME and that the UAE make additional guarantees around how the technology will be safeguarded and used in combat. It could also press for assurances from the UAE that it will end its violations of the Libya arms embargo. And it can hold public hearings to draw more senior-level attention to and scrutiny of these issues.
In short, Congress can step up to adjudicate concerns about eroding Israel’s QME, the potential to spark a regional arms race, the potential for sensitive U.S. defense technology to be shared with Russia or China, and other end-use issues.
This may come down to a race against the clock. An administration must notify Congress of a sale 30 calendar days before the terms of the sale can be finalized. If Congress fails to pass a joint resolution of disapproval in this period — and to override the inevitable presidential veto — the sale can go forward. The administration formally notified Congress of the UAE sale on November 10th, suggesting that it is rushing to finalize the sale before the end of the current term.
While a Biden administration is likely to support the sale, they will also likely be more respectful of Congress’ role in the arms sales process–after all, then-Senator Biden was a long-time member of the Senate Foreign Relations Committee, serving as Ranking Member and later as Chair. Under a Biden administration, Congress will therefore likely be more empowered to play its traditional role in vetting arms sales for their national security implications. But on its current track, the sale will be completed before Biden’s inauguration in January, so Congress must act now.
IMAGE: This photo taken on October 14, 2018 shows an F-35A fighter aircraft of the Japan Air Self-Defense Force taking part in a military review at the Ground Self-Defence Force’s Asaka training ground in Asaka, Saitama prefecture. (Photo by KAZUHIRO NOGI/AFP via Getty Images)