Over the last several weeks, the U.S. Congress has been hard at work on the country’s annual defense spending bill, the National Defense Authorization Act (NDAA). The House of Representatives, where the legislation originates, passed their version of the legislation on July 14 with the Senate following with their own version just last night.
At a time when U.S. security assistance and arms transfers continue to rise, with real consequences for civilian protection and human rights, this year’s NDAA presented lawmakers with a chance to strengthen arms transfer law. Current law in this area is opaque and outdated, not to mention riddled with loopholes — especially when it comes to human rights and civilian harm. With appropriate action, lawmakers could close legal gaps, mandate processes to consider human rights risks, and shore up transparency among recipients of U.S. weapons.
Unfortunately, the House’s FY24 NDAA largely missed the mark.
The lack of progress on human rights conditions in the arms trade is particularly frustrating given the need for increased congressional oversight: the American people — or, at the very least, their elected representatives in Congress — deserve to know how taxpayer dollars are spent to arm the world. But even in the most cooperative administrations, Congress is only notified of certain arms transfers. Some experts estimate that tens of billions of dollars in arms sales may be sent internationally without congressional knowledge due to loopholes in the law.
For context, the United States has averaged more than $150 billion annually in weapons exports in recent years — more than three times the entire budget of the U.S. Agency for International Development, and more than the next four top exporters combined. So it is not surprising that arms sales and security assistance are hot topics in the NDAA. Indeed, according to some estimates, the United States in 2022 was arming at least one party in two-thirds of the world’s conflicts.
Here are some of the missed opportunities on security assistance in this year’s House NDAA, and a few bright spots to watch as the process progresses.
Missed Opportunities to Further Consider Human Rights in Arms Transfers & Assistance
This year, many needed arms sales provisions never received consideration by the full House of Representatives:
- Codification of Human Rights Considerations in Arms Transfers: In March, Congress’ top foreign policy Democrats introduced legislation known as the SAFEGUARD Act to require considering human rights in U.S. arms transfers and bar arms exports to any countries responsible for genocide or war crimes, among other provisions. The legislation would also help codify the stronger human rights standards in the Biden administration’s new Conventional Arms Transfer (CAT) policy, safeguarding against potential changes in future administrations. Representative Gregory Meeks, Chairman of the influential House Foreign Affairs Committee, reintroduced this legislation as an NDAA amendment — but it never received a full vote by the House.
- Reporting on Risks of Arms Transfers: If passed, several provisions would have increased reporting on the risks of particular arms transfers. First, an amendment by Representative Sara Jacobs — also known as the Atrocities Prevention Act, introduced as standalone legislation earlier this week — would have required the Department of State (DoS) to conduct annual reviews analyzing the risks of U.S. security assistance in countries at medium or high risk of atrocities. The amendment also would have required DoS to make determinations, with justifications, on whether the United States should change security assistance to specific countries in light of the identified risks. A separate amendment from Representative Pramila Jayapal would have directed DoS to report on risks related to firearm transfers to foreign countries. Among other things, these reports would have examined the potential for arms to be used in ways that violate U.S. law and detailed the human rights record of countries receiving firearms.
- Banning Cluster Munitions Exports: Most of the world prohibits the use, stockpiling, and transfer of cluster munitions, which pose significant risks to civilians — these weapons drop bomblets indiscriminately over a wide area and often fail to explode on initial impact, creating minefields that harm civilians for decades after wars end. But the United States, a notable exception, recently transferred cluster munitions to Ukraine. A global ban on cluster munitions exports proposed by Representatives Sara Jacobs and Ilhan Omar did not receive a vote by the full House despite bipartisan support. Instead, in a showing of eleventh-hour political gamesmanship, Representative Marjorie Taylor Greene introduced a competing version specific only to Ukraine, which failed after receiving a rare vote by the entire House.
- Reforming the Arms Export Control Act (AECA): An amendment from Representative Cori Bush would have required the President to notify Congress of all arms transfers — not only those above particular dollar thresholds. Once Congress knows about arms sales, it can vote to block or modify them. While Congress has never successfully blocked an arms sale through this process due to the de facto need for a supermajority, fears of Congressional disapproval have certainly affected the timing and composition of proposed sales. An amendment from Representative Jacobs would have also added an explicit mention of human rights into the AECA for the first time. By doing so, the provision would have required recipients of U.S. arms to agree not to use U.S. weapons to violate either “international humanitarian law or international recognized human rights law.”
- Oversight Over the Conventional Arms Transfer Policy: Earlier this year, the Biden administration announced a Conventional Arms Transfer (CAT) policy that elevates human rights considerations in the U.S. arms transfer process and prohibits transfers of U.S. weapons deemed “more likely than not” to facilitate certain abuses. However, questions remain about how the DoS will implement this standard, particularly as it simultaneously seeks to expedite many arms sales. A Representative Daniel Goldman amendment would have required a Congressional briefing to understand the processes that the Department of State uses to consider human rights in arms sales.
- Human Rights Vetting for Special Operations Assistance: An amendment proposed by Representative Jacobs would have required human rights vetting for those receiving U.S. assistance under two secretive special operations authorities: counterterrorism support under Section 127e programs, and support for irregular warfare under the Section 1202 program. Despite Leahy law prohibitions against the provision of U.S. security assistance to forces that have committed gross violations of human rights, recipients of support under these authorities are not subject to any human rights or “Leahy” vetting, a clear loophole.
- Addressing Country-Specific Rights Issues: Several amendments increasing oversight over security assistance to countries with known human rights and civilian protection issues did not receive consideration by the full House. For instance, an amendment proposed by Representative Joaquin Castro would have required a report on firearm diversion and trafficking in Latin America and the Caribbean, as well as an interagency strategy to address these issues. Further, a pair of amendments led by Representative Susan Wild would have restricted funds to the Philippines National Police until they meet certain human rights standards and required a report on the country’s human rights climate.
Bright Spots: Increased Reporting on Actual Use of U.S. Weapons
- End-Use Monitoring (EUM) Reform: The AECA requires the U.S. government to conduct end-use monitoring of U.S.-origin weapons. But Cold War-era U.S. EUM processes don’t actually track use of weapons at all, including whether they have been used in violations of human rights or international humanitarian law. Instead, these procedures focus on preventing diversion and protecting U.S. technology from adversaries. A provision led by Representative Jacobs requires the Government Accountability Office (GAO) to report on efforts to track how U.S.-origin defense articles are used by recipients in accordance with international law obligations.
- Tracking Misuse of U.S. Equipment in Parts of Central America: An amendment introduced by Representative Chuck Edwards requires the DoD to report on misuse of U.S. weapons in El Salvador, Guatemala and Honduras.
As the NDAA moves into conference – the process by which the House and Senate reconcile differences in legislation – lawmakers should incorporate human rights provisions and civilian harm oversight of U.S. arms transfers and security assistance in the final version of the NDAA. Unfinished efforts to increase transparency, close loopholes, and track the actual use of U.S. weapons must not be left on the cutting room floor; instead, lawmakers should support standalone legislation like the SAFEGUARD Act and the Atrocities Prevention Act to accomplish these goals.