Unpacking Biden’s Conventional Arms Transfer Policy

Nearly a year and a half after Reuters first reported the expected release of the Biden administration’s conventional arms transfer (CAT) policy, the CAT is out of the bag. On Feb. 23, the White House announced the release of its long-anticipated CAT policy in National Security Memorandum 18 (NSM-18), which revokes the Trump administration’s CAT policy (National Security Presidential Memorandum 10). 

NSM-18 follows the form of prior CAT policies with lists of objectives and considerations and familiar language about the U.S. technological advantage and the defense industrial base while significantly expanding on human rights and governance concerns. It clarifies its application to the whole of government, strengthens an arms transfer restriction with the aim of preventing atrocities, prominently features human rights concerns, incorporates security sector governance for the first time, and reflects changing concerns about strategic competition and the proliferation and use of weapons of mass destruction (WMD).

The Biden CAT Policy in Context

Six presidents—Carter, Reagan, Clinton, Obama, Trump, and now Biden—have released CAT policies to guide their administrations in decisions to transfer defense articles and services. The first CAT policy arose out of President Carter’s recurring campaign statement that the United States “cannot be both the world’s leading champion of peace and the world’s leading supplier of weapons of war” and his concern with the sharp increase in arms sales during the Nixon administration. Carter’s 1977 CAT policy centered on measurable arms sales restrictions and an overarching message of restraint.

The Reagan administration reversed most of the Carter administration’s arms transfer policy, which one Reagan appointee accused of “substitut[ing] theology for a healthy sense of self-preservation.” In rejecting Carter’s system of arms transfer controls, the Reagan administration also established the basic CAT policy format that persists to this day: a framework for case-by-case decision-making centered on lists of objectives and considerations for U.S. arms transfers, whereas Carter’s list of six specific controls included several bright-line rules to govern U.S. arms transfers. CAT policies lay out processes rather than prescribing outcomes. As presidential policy memos, the CAT policies are neither legally binding nor legally enforceable, and a subsequent president may rescind or replace them. As a 2019 report by the Government Accountability Office noted, CAT policies don’t require the State Department or the Defense Department “to evaluate the criteria in any specific way or take any specific actions” when reviewing arms transfers. 

The Biden administration’s policy is no exception. Like its predecessors, the new CAT policy revolves around lists of objectives and considerations with few bright-line rules, emphasizes its non-enforceability and consistency with existing laws, and can be revoked by a future president. However, the Biden administration policy explains its rationale and elaborates on decision-making processes more fully than past policies, making it nearly double the word count of the Obama CAT policy and 50 percent longer than the Trump CAT policy.

Despite CAT policies lacking the full weight of law, they are still important policy documents. Congress has delegated the bulk of its Foreign Commerce Clause authority over arms sales to the executive branch. While laws such as the Arms Export Control Act (AECA) and the Foreign Assistance Act include policy principles, oversight mechanisms, and general restrictions, they leave much to the White House’s discretion. The CAT policies fill gaps in legal frameworks and can help shape decision-making in the civil service.

Application to the Whole of Government

While all previous CAT policies have been broadly understood to apply to the whole of government, the Biden administration’s CAT policy explicitly clarifies that point. The policy states that it “applies to decisions on whether to authorize the transfer of United States arms to a foreign user, including certain items on the Commerce Control List.” This clarification is all the more important due to a Trump-era policy change that granted the Commerce Department authority over many U.S. arms exports. 

In October 2017, the Trump administration announced rules that came into effect in March 2020 and transferred authority over the regulation of small arms exports from the State Department to the Commerce Department. The change moved Categories I, II, and III of the U.S. Munitions List to the Commerce Control List administered by the Bureau of Industry and Security, making firearms, many kinds of artillery, and ammunition subject to the Export Administration Regulations rather than International Traffic in Arms Regulations. The change took heat from prominent Democrats for significantly decreasing transparency in the export of those categories. In the 15 months after the regulatory change, the volume of firearms export license approvals increased to $15.7 billion under the Commerce Department, compared to an average of approximately $9 billion annually under the State Department.

As a presidential candidate, Joe Biden pledged to “ensure that the authority for firearms exports stays with the State Department, and if needed, reverse a proposed rule by President Trump.” The Biden administration has not yet done so, and the clarifications in language mean this change is unlikely to be forthcoming. The lack of action sparked frustration among legislators, culminating in the December 2022 introduction of a bill by Rep. Joaquin Castro (D-Texas) that would, among other reforms, institute new oversight measures for Commerce Control List items previously on the U.S. Munitions List.

A Strengthened Restriction for Atrocity Prevention 

The Biden CAT policy strengthens a restriction on arms transfers that could contribute to atrocity crimes, lowering the standard from “actual knowledge” that arms would be used to commit atrocities to a commitment not to transfer arms that would “more likely than not” contribute to atrocities. Although the “more likely than not” standard remains subjective and legally unenforceable, its faithful implementation could decrease the likelihood of U.S. contributions to the atrocity crimes of partners.

Since the Reagan administration, presidents have released CAT policies revolving around multifactor lists of considerations. Those lists create balancing tests that allow for a high degree of flexibility in arms transfers. However, the Obama administration’s 2014 CAT policy introduced the first outright prohibition on certain arms sales since the Carter policy:

The United States will not authorize any transfer if it has actual knowledge at the time of authorization that the transferred arms will be used to commit: 

• genocide; 
• crimes against humanity; 
• grave breaches of the Geneva Conventions of 1949; 
• serious violations of Common Article 3 of the Geneva Conventions of 1949;
• attacks directed against civilian objects or civilians who are legally protected from attack or other war crimes as defined in 18 U.S.C. 2441. (Emphasis and formatting added.)

The provision closely resembles Article 6(3) of the Arms Trade Treaty, which President Obama signed in 2013. Although Obama transmitted the treaty to the Senate, the Senate did not provide the advice and consent required for treaty ratification amid opposition from the National Rifle Association. President Trump withdrew the U.S. signature in 2019. Nevertheless, the Obama administration’s negotiating position entered U.S. policy in the 2014 CAT policy. Despite its opposition to the Arms Trade Treaty, the Trump administration retained the substance of the atrocity prevention provision from the Obama CAT policy, only adding the word “intentionally” to qualify attacks directed against civilians.

The “actual knowledge” standard of the Obama and Trump administration CAT policies was especially high. By excluding instances of “constructive knowledge” where the United States should have known that transferred arms would be used to commit atrocities, the actual knowledge standard opened the door to willful blindness to atrocity crimes. As one senior State Department official conveyed in a briefing about the Biden CAT policy, without a “crystal ball,” the U.S. government almost never has actual knowledge at the time of transfer that arms will be used to commit abuses. The Biden CAT policy lowers the “actual knowledge” standard to a “more likely than not” standard, broadens how the United States should assess contribution to atrocities, and extends the list of atrocities to be considered. The policy states:

[N]o arms transfer will be authorized where the United States assesses that it is more likely than not that the arms to be transferred will be used by the recipient to commit, facilitate the recipients’ commission of, or to aggravate risks that the recipient will commit:

• genocide; 
• crimes against humanity; 
• grave breaches of the Geneva Conventions of 1949, including attacks intentionally directed against civilian objects or civilians protected as such; 
• or other serious violations of international humanitarian or human rights law, including serious acts of gender-based violence or serious acts of violence against children. (Emphasis and formatting added.)

Whereas past CAT policies considered only whether a given defense article would be used directly in an atrocity crime, the Biden policy includes the likelihood of an arms transfer facilitating commission of or aggravating the risk of a recipient committing atrocities. The atrocities under consideration include not only genocide, crimes against humanity, and grave breaches of the Geneva Conventions but also other serious violations of international humanitarian law (specifically war crimes, including as a matter of customary international law) and human rights law.

Beyond the broadened scope of the atrocity prevention provision, the Biden CAT policy offers further elaboration on how decision-makers should consider the likelihood of arms’ contribution to atrocities. The policy directs decision-makers to consider:

"available information and relevant circumstances, including the proposed recipient’s current and past actions, credible reports that the recipient committed any of the above violations, and other information related to the overall capacity or intention of the recipient to respect international law."

Finally, the atrocity prevention restriction creates a policy pathway to cease a previously authorized arms transfer when circumstances change to exacerbate atrocity risks. In such instances, the CAT policy states that “the United States will reassess and, as appropriate, review options for ceasing the transfer of or support for a previous authorization.” Although some narrow options exist to cancel the delivery of authorized sales pursuant to congressional action, the formalization of the option to cease an authorized transfer marks a new development in the CAT policies. The effectiveness of the provision will depend on how it is implemented. In all likelihood, the new policy will create opportunities for the State Department’s Bureau of Democracy, Human Rights, and Labor to more effectively advocate for the cessation of certain sales, but its effects in practice remain to be seen.

Considering Human Rights in Arms Transfers 

Beyond the shift to a “more likely than not” standard, the Biden CAT policy addresses human rights issues in its lists of objectives and considerations in a first-of-its-kind standalone human rights section. Every CAT policy, with the exception of the Reagan administration’s policy, has expressly featured human rights concerns, but the Biden administration’s policy features the most robust incorporation of human rights and international humanitarian law considerations to date.

The Trump administration’s CAT policy did not feature human rights promotion as a policy objective, mentioning only “reduc[ing] the risk of national or coalition operations causing civilian harm.” The Biden policy includes three objectives related to human rights, referencing both the prevention of harmful arms transfers and the promotion of human rights, international humanitarian law, and civilian harm prevention among allies and partners.

Human rights also feature prominently among NSM-18’s list of considerations. The list includes the risk of arms being used to violate international human rights or humanitarian law, a feature of the CAT policies’ considerations since the Obama administration. But the Biden policy also directs the consideration of a broader range of human rights-related harms than ever before, acknowledging how arms transfers could undermine “human rights, fundamental freedoms, or the activity of civil society; encourage or contribute to corruption; contribute to instability, authoritarianism, or transnational repression; contribute to impunity of security forces; or undermine democratic governance or the rule of law.” Critically, unlike in past CAT policies, this consideration takes into account the broader political conditions surrounding a transfer and does not require a specific, transferred munition to be directly used in a human rights violation. The mention of transnational repression complements an existing legal prohibition on security assistance to states that consistently harass or intimidate people in the United States. Concern with security force impunity relates to the Leahy Law’s encouragement of bringing to justice security force units that commit gross violations of human rights. Neither factor appeared in prior CAT policies.

While past CAT policies have communicated the need to balance between national security interest and human rights concerns, in addition to the new policy’s standalone human rights section, Biden’s CAT policy seems to argue that national security and human rights are inextricably intertwined. The policy states, “United States national security is strengthened by greater respect worldwide for human rights and international law, including international humanitarian law.” The human rights section also frames the “legitimacy of and public support for arms transfers among the populations of both the United States and recipient nations” as contingent upon the protection of civilians, a rationale that has not appeared in past CAT policies. 

The human rights section of the Biden administration’s CAT policy closes with an assurance that “the United States will engage in appropriate monitoring as part of its effort aimed at ensuring transferred arms are used responsibly and in accordance with these conditions and obligations.” How the Biden administration intends to conduct monitoring remains unclear. The U.S. end-use monitoring regime mandated in the AECA (22 U.S.C. § 2385) does not currently track the use of U.S.-origin defense articles or services in civilian harm, human rights abuses, or international humanitarian law violations. Instead, end-use monitoring focuses on preventing diversion and protecting U.S. technology, often struggling with resourcing and prioritization to fulfill that mandate. 

Recent legislative proposals, such as the SAFEGUARD Act and the Values in Arms Export Act, would amend the AECA to require that end-use monitoring cover use in international human rights and humanitarian law violations, among other reforms. But no such mandate exists in current law. If the Biden administration chooses to expand end-use monitoring to advance its stated human rights and good governance objectives, a future administration could overturn its policy absent a congressional mandate.

New Focus on Security Sector Governance

The Biden administration’s CAT policy incorporates the consideration of security sector governance (SSG) in arms transfer decisions for the first time, reflecting the administration’s increased focus on the issue in response to criticisms that U.S. security cooperation programs often contribute to the very problems they are intended to address. NSM-18 mentions accountability, rule of law, civilian control, and countering corruption as elements of SSG. Analysts have welcomed the emphasis, but successful SSG reforms are often long and complex processes and best practices in implementation remain debated.

Experts point to transparency in the security sector as a key factor in strong governance. The Biden CAT policy accordingly mentions that the United States will consider a country’s “demonstrated commitment to improving transparency” as a consideration for arms transfers. The policy also commits to “continue to promote control, restraint, and transparency of arms transfers.” However, references to transparency come as experts call attention to declining arms sales transparency in the U.S. system.

Evolving Security Priorities

Like the Reagan, Clinton, Obama, and Trump administrations’ CAT policies before it, the new CAT policy outlines promoting the U.S. defense industrial base and enhancing interoperability with allies and partners. In light of weaknesses in supply chains revealed by the coronavirus pandemic and Russia’s invasion of Ukraine, Biden’s policy also describes ensuring the resiliency of global supply chains as an explicit goal. While previous administrations have stressed maintaining the U.S. technological advantage over adversaries, Biden’s CAT policy is the first to explicitly name strategic competitors, China and Russia. The policy, then, is within the Biden administration’s precedent of naming and emphasizing strategic competitors in policy documents. 

This CAT policy also contains the strongest language to date on the nonproliferation of weapons of mass destruction, emphasizing U.S. adherence to international export norms. NSM-18’s prescription of “an assessment of whether the [arms] transfer might contribute to a recipient’s pursuit of WMD and their means of delivery” raises questions of long-standing U.S. security cooperation relationships that lawmakers have historically believed violate the AECA (22 U.S.C. § 2778(a)(2)). The section requires that export licenses “take into account” if an article’s export “would contribute to an arms race, aid in the development of weapons of mass destruction[, or] … increase the possibility of outbreak or escalation of conflict.” Many analysts believe that U.S. security cooperation activities to South Asian countries, from the contentious Cold War legacy of F-16 maintenance to Pakistan to the transfer of increasingly advanced defense technology to India, do not adequately weigh arms race and vertical proliferation concerns. Assessing how the Biden administration proceeds with security cooperation cases to South Asia will be a strong test case to see if the inclusion of this language evoking the AECA in the new CAT policy indicates a stronger adherence to the law. 

Putting Policy Into Practice

The Biden administration’s fact sheet about the new policy states that the government has already been operating in the spirit of the CAT policy prior to the document’s formal publication. For lawmakers and advocates who have criticized the Biden administration’s sales to security partners with troubling civilian harm and governance records, this raises questions about how the CAT policy’s principles factored into controversial sales, as well as what changes observers can expect to see in future arms transfer decisions now that the policy is officially in effect. Since the release of the CAT policy, the Biden administration has declined to comment on the continuation of sales to any specific country.

The CAT policy does not displace the need for legislative oversight of U.S. arms transfers. The Fiscal Year 2023 Consolidated Appropriations Act allocated $5 million to the State Department bureaus responsible for CAT policy implementation, and sustained oversight will help ensure effective operationalization of the policy. Lawmakers who welcome the Biden administration’s CAT policy could enshrine its guidance in legislation to bind future administrations, institutionalizing the new policy’s emphasis on rights and governance.

Correction appended (March 3, 2023, 1:47pm): An earlier version of this article stated that the volume of firearms export license approvals increased to $15.7 billion annually under the Commerce Department in the year after the Trump administration’s 2017 regulatory change. The $15.7 billion figure reflects an examination of the 15 months following those regulatory changes, a bit longer than a year, and is not an annual figure. This article has been updated to more accurately represent the statistic.