Editor’s Note: This article represents the second installment of a two-part series on the FY23 National Defense Authorization Act, civilian harm policy, and security sector assistance. Read part I here.
On Congress’ legislative agenda as the House and Senate return from a month-long recess is passing a National Defense Authorization Act (NDAA), the annual defense spending bill. This year, the bill features a number of provisions – at least 39 in the House-passed version of the NDAA – dealing broadly with security cooperation, including arms sales, defense services, and train and equip missions.
It is small wonder that security assistance has drawn such attention in this year’s NDAA given both the increasingly dominant role security cooperation plays in U.S. defense and foreign policy and growing concerns about the human rights impacts of that assistance. More than $57 billion in Foreign Military Sales (FMS) have been notified to Congress as of August this year, despite early signals from the Biden administration that it planned to pursue a more restrained – or at least more human rights-conscious – arms export policy. For example, while the administration has pledged to send no “offensive weapons” to Saudi Arabia in light of concerns of civilian harm in Yemen, continued U.S. maintenance support for Saudi operations and the sale of big-ticket “defensive” technology has further entrenched U.S. security commitments to the Gulf states and appeared to blur this distinction. Meanwhile, as President Biden hailed the end of the “forever war” when the last U.S. soldiers left Afghanistan, security cooperation programs conducted through Title 10–including 127e and 1202, which are intended to train, equip, and build partner force capacity–have continued and accelerated, suggesting that the United States now prefers to wage war largely “by with and through” its security partners. And with no revised Conventional Arms Transfer policy made public as of this writing, the details of U.S. arms transfer policy – and how current decisions consider human rights and civilian harm concerns – remain largely opaque.
The measures contained in the draft NDAA respond to these inconsistencies, dealing with due diligence of special operations authorities and Congressional oversight over arms sales and the coordination of security assistance. They also communicate Congress’ concern over the human rights, diversion, and corruption risks of U.S. security cooperation activities, with a slew of provisions attempting to better understand and track defensive aid to Ukraine, the addition of legislative text adding more human rights concerns to the arms transfer process, and many country-specific reporting and restriction requirements. Many of these provisions are reforms that civil society organizations have long asked for and are sorely needed, while several others have admirable goals, but would likely be better addressed by legislative vehicles outside of the NDAA, like invoking Section 502(B) of the Foreign Assistance Act.
Better Understanding and Overseeing Secretive Special Operations Authorities
Of the amendments seeking greater vetting and review of security sector assistance, Sections 1209 and 1037-1038 are among the most impactful. Currently, Congress has little oversight over the secretive 127e and 1202 programs, which authorize U.S. special operations forces to train, arm, and assist foreign partners to counter terror groups and other states, respectively. In an interview with POLITICO, retired Brig. Donald Bolduc acknowledged that under these authorities, U.S. forces “not only advise and assist and accompany” foreign forces, irregular forces, and militias, but often directly command them, posing considerable concerns for congressional oversight of counterterrorism and other security operations. Even most members of relevant congressional committees often have insufficient information about these operations, including with whom, to what ends, and where these missions are conducted. Reporting and freedom of information act requests, meanwhile, demonstrate that between 2017 and 2020, the United States engaged in at least 23 separate programs under the auspices of 127e, in a wide geographic range including Cameroon, Niger, and Tunisia. U.S. partners have included foreign forces found to engage in gross violations of human rights, including extrajudicial executions of civilians and rape.
Section 362 of Title 10 of the U.S. Code, one of the “Leahy laws,” bars Department of Defense (DoD) appropriated funds from training, equipping, or providing other assistance for foreign units who have committed gross violations of human rights. At present, however, DoD does not apply Leahy vetting to 127e and 1202 programs. Sections 1037-1038 of H.R. 7900 would close this loophole by applying human rights vetting to these recipients, ensuring that U.S. forces do not enable or abet further violations of human rights or international humanitarian law. To additionally allow greater congressional understanding of the goals and outcomes of these secretive programs, Section 1209 of the House-passed bill would require a report from the Secretary of Defense on the processes that DoD uses to assess, monitor, and evaluate security sector assistance under sections 127e and 1202.
Passing both these provisions offers Congress a valuable opportunity to promote due diligence over special operations authorities, countering some of the human rights and war powers concerns these programs raise. Conversely, Congress should reject Section 1331 of H.R. 7900, which would permanently extend the secretive special operations permissions temporarily authorized in Section 1202 of the Fiscal Year 2018 NDAA. This measure would substantially frustrate Congress’s ability to exert important oversight on matters related to war and its conduct, increasing the risk that U.S. forces might be deployed under Section 1202 to engage in escalatory operations or hostilities against countries like Russia and Iran without Congress’ knowledge or explicit authorization.
Requiring Human Rights and Atrocities Considerations in Arms Transfers
Sections 6401-6405, including language from the as-yet unpassed SAFEGUARD and National Security Reforms and Accountability Act, make a variety of needed legislative interventions to add more human rights considerations in arms transfer decisions. The sections would automatically bar arms sales to countries the Secretary of State determines to be committing genocide or war crimes with appropriate remediation provisions, rather than relying on piecemeal executive orders as has often been the case in the past. Additionally, Section 6404 would address gaps identified by both civil society and the Government Accountability Office in end use-monitoring (EUM) programs. The current EUM regimes do not evaluate or monitor the use of defense articles in breach of either contract of sale or international humanitarian law or human rights law. Instead, EUM checks verify only unauthorized diversionーand given the abundance of U.S. equipment proliferated throughout the world, including in the hands of rival extremist organizations, an assessment of those policies and practices is overdue. The text would also require that end-use monitoring programs track not only diversion, but also the misuse of U.S.-origin weapons in human rights violations, a needed reform that would be well complemented by the GAO report mandated by Section 5876 (detailed below).
Improving Congressional Oversight of Delivery Timelines, Civilian Harm, and End-Use Monitoring
The below NDAA provisions, if passed, would make relatively minor legislative changes, but considerably increase Congress’ and the public’s ability to monitor and evaluate U.S. arms transfers and their effects.
Section 1201 of the NDAA modifies reporting that DoD must deliver annually to Congress, offering topline figures on security cooperation under given authorities in every country. The section as a whole makes several welcome additions to the reporting system, including a “description of efforts to prevent civilian harm and human rights violations” for a given country’s security cooperation program. In line with the attempts to enhance oversight of the “by with and through” authorities mentioned above, the section also includes a requirement to notify Congress of the number of new programs carried out under Title 10, Section 333 “Building Partner Capacity” programs and the dollar value of each of those programs.
Section 5826 improves congressional oversight of arms sales by requiring that the Chair and Ranking Member of the Senate Foreign Relations Committee and House Foreign Affairs Committee receive notification at least 30 days prior to the shipment of armaments that previously required congressional notification. Under the current notification system, Congress is notified of FMS cases only when the proposed end-user, the Defense Security Cooperation Agency (DSCA), and the implementing agency are preparing a Letter of Offer and Acceptance. The average FMS case takes several years to execute, during which time U.S. tactical goals, geopolitical dynamics, and human rights conditions in a given region can significantly shift. Passing Section 5826 would account for these contingencies by ensuring Congress has up-to-date information about where and to whom U.S. weapons are sent, making delivery timelines for U.S. defense articles more transparent and responsive to evolving human rights or strategic concerns. To round out this provision dealing with pre-sale risk mitigation, Section 5876 assesses end-use monitoring concerns mentioned above by both civil society and GAO reporting to improve post-sale evaluation. The provision would analyze and recommend reforms to these programs by requiring the GAO to report on implementation and areas of concern in the existing end-use monitoring programs.
Another strong transparency-oriented provision, Section 1097, provides more information about the often opaque 1122 program, through which law enforcement agencies can buy military equipment from the federal government for counter-drug and homeland security purposes. Section 1097 requires the creation of a publicly available and searchable website making clear the type of equipment purchased, the end-user and purpose of the purchase, and related administrative costs. This system would be a needed reform to the hodgepodge of inconsistent or nonexistent record-keeping on 1122 purchases that make analysis of the program’s efficacy or risks nearly impossible.
Concerns Over Diversion, Tracking, and Waste in Security Sector Assistance to Ukraine
The unprecedented speed and dollar value of security sector assistance since Russia’s invasion is reflected by no fewer than six House-passed NDAA amendments on security cooperation with Ukraine. Given these amendments’ overwhelming similarities in text and goal, however, in future sessions House members should heed Chairman Smith’s call to better coordinate and not submit so many discrete amendments to the bill. Section 1232 modifies and extends the Ukraine Security Assistance Initiative, including introducing more reporting requirements, while two Sections, 1703 and 1710, express a Sense of Congress favoring and mandate, respectively, quarterly briefings on the transfer and replenishment of particular weapons. Section 1243, similarly, would require a report on distribution and use of U.S. weaponry in Ukraine. Potentially the most effective of these provisions, Section 1241, would require a report on best practices to track and monitor U.S. defense articles and services in both the Ukraine war and potential future conflicts, to be implemented within 180 days. Presumably, how the Senate-passed bill frames and approaches tracking security cooperation will help determine what language will move forward into the final bill.
Country-Specific Arms Sales and Transfer Provisions
The House-passed NDAA also included a number of provisions aimed at preventing and addressing risks of human rights violations and civilian harm associated with arms transfers to specific countries, including Saudi Arabia, Colombia, Azerbaijan, the Philippines, and Hong Kong.
Evidence has continued to mount that squadrons trained by U.S. forces in the Saudi-led coalition used U.S.-made weapons and services to kill and harm civilians in Yemen at a scale experts say amount to war crimes. Consequently, many civil society groups and Members of Congress have called for the end of arms sales & transfers, training and support (including refueling and intelligence sharing) to all members of the coalition, but particularly Saudi Arabia. Given this, two complementary provisions, Sections 1337 and 7001 are welcome small steps in reining in security sector assistance to states which habitually violate international law. However, with future legislation and votes, further assertive congressional action is needed to prevent more needless suffering in Yemen.
Section 7001 of H.R. 7900 temporarily limit the transfer of defense articles and services to the intelligence, internal security, or law enforcement agencies in the Kingdom of Saudi Arabia to allow the President to ensure that certain human rights conditions have been met, including the end of killing dissidents, torturing detainees, and unjustly imprisoning U.S. citizens and lawful permanent residents. A complementary provision, Section 1337 of H.R. 7900, as recommended by the GAO, require the Department of State to develop guidance to investigate whether U.S.-origin defense articles have been used in Yemen by the Kingdom of Saudi Arabia or the United Arab Emirates in violation of relevant agreements. Critically, there is no reason that strong methods to investigate misuse of U.S. weapons should not be applied to contexts outside Yemen. Given the many cases worldwide of misuse or diversion of U.S.-made armaments, Congress should use future legislative sessions to act on the results of investigation, while the Departments of State and Defense should use GAO findings to improve their end use-monitoring programs and more accurately account for misuse in pre-transfer assessments.
Recognizing the history of U.S. security assistance aiding the Colombian state’s gross violations of human rights, Section 5865 requires a report from the Secretary of State documenting U.S. intelligence of historic involvement of the Colombian government in atrocity crimes and provide an overview of past U.S. security assistance to Colombia, including military support, training, logistics, and weapons transfers. Another largely symbolic, but necessary, provision is Section 1051. Responding to the enormous harm done by U.S. aerial fumigation in Colombia, Section 1051 prohibits DoD-appropriated funds from being used in crop-spraying.
Two similar measures, Sections 5874 and 1343 require reporting on security assistance to Azerbaijan. Section 5874, implements a GAO recommendation for missing information required from the Department of State to Congress in order to receive a waiver under section 907 of the FREEDOM Support Act of 1992, which prohibits SSA to Azerbaijan under most conditions but is regularly waived despite persistent concerns. Section 1343, meanwhile, requires an investigation into U.S. defense exports to Turkey and Azerbaijan in the Nagorno-Karabakh conflict, as well as an assessment of those states’ recruitment of foreign fighters. With the overlap in goals between these two amendments, their relevant language should be combined in future iterations of the bill.
The Philippines and Hong Kong
Two provisions, Sections 5863 and 5865, reflect a growing cognizance of global police violence. Section 5863 would prohibit the transfer of equipment or training to the Philippine National Police (PNP) until the Secretary of State certifies that the PNP have met certain accountability conditions, most notably investigating members of the PNP who have violated human rights and fully complying with domestic and U.S. audits regarding the improper use of prior security assistance. Similarly, Section 5835 would extend prohibitions on U.S. firms selling munitions to the Hong Kong police, preventing another unsightly example of the force using U.S.-made tear gas against pro-democracy protesters.
For Many Country-Specific Concerns, Congress Should Use 502B
The attention to human rights risks demonstrated above is certainly a welcome aspect of the House-passed NDAA. However, given the political challenges many of these provisions may face in becoming law, lawmakers would also be wise to address these concerns through Section 502B of the Foreign Assistance Act. This little-invoked provision has four chief parts: a prohibition on security assistance to countries that consistently engage in gross violations of human rights; a requirement for annual human rights reports, which the State Department fulfills through the Country Reports on Human Rights; a congressional request for further reports to assess matters of particular concern in a given country, and a mechanism for joint resolutions of disapproval for Congress to enforce the core prohibition.
For requesting reports on a state’s potential misuse of U.S. security assistance or cutting off assistance to a state as a whole (rather than to problematic units as required by the Leahy laws), Section 502B of the Foreign Assistance Act is likely a more expedient tool than individual NDAA provisions. Section 502B is perhaps the most potent legal tool available for security assistance oversight. It defines security assistance broadly to capture cooperation provided under military assistance and counterterrorism authorities, economic support funds, military education and training, sales of defense articles or services, and licensing for articles and services listed under the 600 series of the Commerce Control List. Critically, the security assistance provided by the United States does not itself need to be used in gross violations of human rights. This means, for example, that restricting arms sales to Saudi Arabia does not need to adhere to the offensive/defensive weapons distinction many experts have criticized. 502B’s other strengths lie in its flexibility and privileged resolutions. While the NDAA is often a lengthy process – and one in which many human rights amendments get left on the cutting room floor, as evidenced by last year’s bill – any member of Congress can invoke 502B by introducing a single-chamber resolution requesting a report from the Secretary of State on their concerns for a given country. Like the Joint Resolutions of Disapproval Congress can adopt when notified of an arms sale, these resolutions are privileged in the Senate under the procedures detailed in the Arms Export Control Act (AECA). Additionally, the chair of the House Foreign Affairs Committee or Senate Foreign Relations Committee can automatically request this information by letter, without requiring a single-chamber resolution. Unlike NDAA provisions, which often leave a graveyard of unfulfilled reports in their wake, if the Secretary of State fails to respond within thirty days, “no security assistance shall be delivered to such country except as may thereafter be specifically authorized by law from such country until and such statement is transmitted.”
Amendments seeking greater human rights reporting or temporary bars on security assistance, such as those on Saudi Arabia and Azerbaijan, could thus be resolved more quickly through a 502B request. Congress would do well to use time remaining on the legislative calendar to finally use 502B to conduct stronger oversight on these priorities.