Should Congress Play a Role in Arms Sales?

Editor’s Note: The Trump administration’s proposal to end the informal practice of notifying Congress well in advance of major arms sales is a departure from long-standing norms and a means of decreasing congressional interference in controversial sales, such as those to help the Saudi war in Yemen. Alexandra Stark of New America explains why this shift would be a mistake, discussing both the role of Congress and why the notification process should continue.

Daniel Byman

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The Trump administration has proposed ending the informal practice of notifying Congress ahead of major arms sales. Despite the high barriers to Congress actually blocking an arms sale, ending this informal practice would close off one of the few channels of influence for the legislative branch to calibrate the United States’s relationships with its security partners around the world—and for citizen organizing to shape and respond to U.S. foreign policy.

Under the terms of the Arms Export Control Act, the president is required to formally notify Congress 30 days before the administration finalizes an arms sale worth $14 million or more (or defense articles or services worth at least $50 million) to a foreign government, or before the issuance of a license in the case of commercial sales. (The window is 15 days for NATO, NATO members, and other close U.S. partners Australia, Israel, Japan, New Zealand, and South Korea; the threshold values are also higher for this category of sales.) But, as Foreign Policy recently reported, the administration is now proposing to do away with informal arms sale notifications that the executive branch has traditionally submitted to Congress well before arms sales are finalized. This normative courtesy dates back to the 1970s, when Congress passed several pieces of legislation, including the 1973 War Powers Resolution and 1976 Arms Export Control Act, asserting its constitutional authority to conduct oversight of U.S. national security policy.

The president is also technically required to notify Congress if a recipient country violates the Arms Export Control Act. While it is rare for a president to do so, it has happened before: In 2007, for example, President George W. Bush informed Congress that Israel may have violated its agreements by using U.S.-supplied cluster munitions during the 2006 Lebanon War.

The Informal Notification Period and Congressional Holds

The informal notification period allows members of Congress to place holds on arms sales while they raise concerns, receive answers from the administration, and provide input before the deal is finalized. Even with such notifications in place, the barriers to Congress formally blocking a foreign sale are overwhelmingly high in practice. As arms control experts Diana Ohlbaum and Rachel Stohl note that “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.” Indeed, Congress has never been able to successfully block a sale via a joint resolution of disapproval, although it came closest to doing so in 2019, when a Senate vote failed to override the president’s veto of a joint resolution of disapproval of an arms sale to Saudi Arabia.

Nevertheless, informal congressional notification still serves a critical purpose. During the informal review period, the executive shares information about a sale with Congress prior to the formal notification period. This review period allows the relevant committees to place informal “holds” on specific sales and raise concerns before the formal notification period. The process can also be beneficial for the administration. As Acting Assistant Secretary of State Tina Kaidanow testified in June 2017, the informal process allows for Congress’s “concerns [to be] addressed, in a confidential process with the Administration, so that [the United States’s] bilateral relationship with the country in question is protected.” The administration typically extends “the review period until we can resolve those concerns,” Kaidenow added.

Historically, Congress’s role in conducting oversight this way has been obscured, since in the past an administration would be more likely to end a potential deal that faced a great deal of congressional criticism, thus negating the need for Congress to hold a vote. As then-Senator Joe Biden wrote in 1984, “Congress has never vetoed an arms sale, but that does not mean that Congress has not exercised influence over such sales. The Administration knew that Congress could veto a sale, and that encouraged the Administration to work with Congress, giving early notification of proposed arms sales and taking the opinions of Congress into account.” This informal review is one of few mechanisms that Congress has to actually conduct oversight over U.S. national security policy. Removing this mechanism would continue the erosion of Congress’s role in national security policy over the past few decades. According to the New York Times, if enacted, the proposal “would effectively end congressional oversight of the sale of American weapons and offers of training to countries engaged in wars with high civilian casualties or human rights abuses.”

Informal congressional notifications subject arms sales to public scrutiny and the public will, affording Congress (and its constituents) an avenue for oversight of U.S. national security policy in the face of expansive executive authority, and allowing Congress and the public to assess the costs and benefits of these security partnerships. This allows the U.S. public to exercise meaningful leverage to address the problematic behavior of security partners—like Saudi Arabia and the United Arab Emirates—when they undermine U.S. strategic objectives and when presidential administrations would rather look the other way, as Congress’s ongoing battle with the Trump administration over U.S. support for the war in Yemen demonstrates.

The Battle Between Congress and the Executive Branch Over Yemen

According to Foreign Policy’s reporting, the move comes “amid mounting frustration from senior administration officials over informal holds from lawmakers on arms sales to countries like Saudi Arabia and the United Arab Emirates.”

Tension between the administration and Congress over arms sales to these Gulf countries dates back almost to the launch of the Saudi-led coalition’s intervention in Yemen’s civil war in March 2015. Since then, legislators, former policymakers, humanitarian nongovernmental organizations and international organizations have expressed grave concerns about the toll that the coalition’s bombing campaign has had on Yemeni civilians.

While the Obama administration tried to provide the Saudi-led coalition with tools and training to decrease civilian casualties, civilian casualties continued to mount. Yemen Data Project reported that in the first three years of the air campaign, 30 percent of all recorded airstrikes targeted nonmilitary sites. By late 2015, although Houthi forces were implicated in the deaths of hundreds of Yemeni civilians, the United Nations estimated that the majority of civilian casualties—about 60 percent—were due to the Saudi-led coalition’s air campaign. Airstrikes targeted civilian facilities, including schools and hospitals; an October 2016 double-tap airstrike on a funeral killed at least 140 people; and an August 2019 bombing of a school bus killed 40 children. These attacks drew widespread condemnation.

The humanitarian situation in Yemen and the egregious nature of Saudi airstrikes on civilian targets grabbed the attention of some members of Congress. By 2016, a bloc in Congress comprising both progressive-leaning Democrats and conservative Republicans with a libertarian perspective on foreign policy, began to cohere. That spring, Sen. Rand Paul introduced S.J. Res. 31 and Rep. Ted Lieu introduced a similar bill, H.J. Res. 90, on the House side, that would limit future arms transfers to Saudi Arabia. A proposed amendment to the fiscal 2017 National Defense Authorization Act (NDAA) to prohibit the transfer of cluster munitions to Saudi Arabia was narrowly defeated. Members also began introducing legislation citing the War Powers Resolution and U.S. support for the Saudi-led coalition. Unlike almost anything else in a polarized Congress, engagement in the arms sale process has been bipartisan, with both Republicans and Democrats placing holds on arms sales to the Gulf countries in recent years.

After this initial push, Congress began to build momentum in late 2018 due to two factors. First, the Trump administration’s full-throated support for Saudi Arabia and its promotion of arms sales as a means of creating jobs in the United States focused congressional concern on conducting oversight of U.S. foreign policy, and particularly on arms sales to Saudi Arabia and the UAE. Second, the murder of Saudi journalist and U.S. resident Jamal Khashoggi by Saudi government operatives directly linked to the de facto ruler of the kingdom, Crown Prince Mohammad bin Salman (or MBS), sparked a national debate about the efficacy and nature of the U.S. security partnership with Saudi Arabia and the Trump administration’s close ties to MBS in particular.

Sen. Bob Menendez, ranking minority member of the Senate Foreign Relations Committee, summarized Congress’s concerns about U.S. arms transfers to Saudi Arabia and the UAE in a letter to Secretary of State Mike Pompeo and Secretary of Defense James Mattis in June 2018: “I am not confident that these weapons sales will be utilized strategically as effective leverage to push back on Iran’s actions in Yemen, assist our partners in their own self-defense, or drive the parties toward a political settlement that saves lives and mitigates humanitarian suffering. Even worse, I am concerned that our policies are enabling perpetuation of a conflict that has resulted in the world’s worst humanitarian crisis.”

In April 2019, the president vetoed legislation to end U.S. military support for the Saudi-led coalition. Then, on May 24, the administration announced a potential sale worth more than $8 billion to Saudi Arabia, the UAE, and Jordan. Members of Congress ranging from Sen. Lindsey Graham to Rep. Ro Khanna reacted with fury, both to what appeared to be an affirmation of Saudi Arabia’s egregious behavior and to the executive’s attempt to circumvent congressional review by citing an emergency provision in the Arms Export Control Act. The Senate and the House passed several measures blocking the sales that the president vetoed in July 2019, marking his third veto to that point since taking office. Trump asserted in his veto statement that the legislation “would weaken America’s global competitiveness and damage the important relationships we share with our allies and partners.” Earlier this year, State Department Inspector General Steve Linick was fired after refusing to drop an investigation of the sale and the administration’s efforts to circumvent congressional review. Linick’s firing is now the subject of a congressional investigation.

Affirming the Importance of Congressional Oversight

These setbacks have not dampened Congress’s enthusiasm for blocking arms sales and other forms of support to Saudi Arabia and the rest of the coalition intervening in Yemen. Menendez recently raised concerns that the administration is pursuing another sale and called on Congress to “reject this new multi-million dollar sale of weapons to Saudi Arabia.” Although House amendments to the fiscal 2020 NDAA that would prohibit U.S. support for the Saudi-led coalition were eventually dropped, Sens. Bernie Sanders, Mike Lee and Chris Murphy—the sponsors of the legislation invoking the War Powers Resolution to end the U.S. role in the intervention in Yemen—introduced an amendment to the fiscal 2021 NDAA that would prohibit funds and other support for the coalition, while Khanna added a similar amendment to the House version of the bill.

While the 2019 legislation was ultimately vetoed, it had a tangible effect on the conflict in Yemen. Analysts have credited the UAE’s drawdown from Yemen last summer and Saudi Arabia’s increased openness to a political settlement to their concerns about congressional censure and reputational damage. Acting Secretary of State David Satterfield told Sen. Todd Young and the Senate Foreign Relations Committee that “your efforts ... have been exceedingly helpful in allowing the Administration to send a message” over concerns about humanitarian aid and commercial goods entering Yemen, highlighting that reinforcing messaging from both the executive and Congress “is extremely important.”

Equally important, the legislation allowed the U.S. public to weigh in on the sale and on the United States’s relationship with security partners like Saudi Arabia more broadly via their representatives in Congress. It served as a focal point for advocacy organizations to raise awareness among their grassroots constituents about the war in Yemen and congressional oversight of U.S. national security policy more broadly. The legislation also shifted the terms of the national political debate: During the presidential primary, candidates were asked whether they would reevaluate the U.S.-Saudi relationship, and Vice President Biden promised to “end U.S. support for the disastrous Saudi-led war in Yemen and order a reassessment of our relationship with Saudi Arabia,” a departure from Obama administration policy.

Going forward, congressional oversight of arms sales will also be one of the few tools available to recalibrate the United States’s relationship with problematic security partners like Saudi Arabia by exercising meaningful leverage when these partners take actions that undermine U.S. strategic objectives, especially when the Trump administration would rather maintain the status quo in these relationships. As Senator Graham told Fox News Sunday last year, “I’ve got a real problem with going back to do doing business as usual with Saudi Arabia [on arms sales] …. Saudi Arabia is a strategic ally, but the Crown Prince was, in my opinion, involved in the murder of Mr. Khashoggi. And he’s done a lot of other disruptive things.”

The problem of executive overreach in national security policy is not just a Trump problem. While Trump has brought this issue to a crisis point, the problem of declining congressional oversight of U.S. national security policy has been a constant over the past few decades. To address this issue, advocates have promoted “flipping the script” on arms sales, which would have Congress vote affirmatively to approve any arms sales—an approach modeled on legislation introduced by then-Senator Biden in 1986. While such reforms may be a stretch for a deeply polarized Congress, Congress should at least hold on to its existing ability to weigh in on arms sales via the notification period and the ability to place holds on arms sales regardless of which party is in the White House.

The Trump administration is right in one sense: Congressional notification does slow down the arms sales process. But due deliberation is a good thing when deciding whether to provide U.S.-manufactured weapons to foreign governments. By doing away with this norms-driven tradition, the Trump administration would decrease transparency and accountability around U.S. foreign policy and weaken one of the few tools Congress and the public have to reset the nation’s relationship with security partners like Saudi Arabia that have “become a disruptive force” in the Middle East.

Ironically, if the Trump administration presses forward on getting rid of informal notifications, congressional ire could very well become the impetus for broader reform of the arms sales process. As Ohlbaum and Stohl write, while committees’ ability to place a hold on proposed sales “is a courtesy, rather than a legal obligation, a White House decision to ignore these objections” would not be taken lightly by members of Congress but, rather, “would be regarded as an assault on congressional prerogatives.” Even some staunch Trump allies have expressed anger about the administration’s approach on arms sales. “Do away with the emergency exception,” said Senator Graham, after the White House attempted to circumvent Congress last June. “I would not have agreed to that before, but after this maneuver by the administration, count me in.” By trying to push Congress out of the arms sales process, the Trump administration could unwittingly instigate a new era of arms sales reform.