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The new US foreign arms transfer policy adds human rights concerns to final decisionmaking on each request to sell or provide tools of war abroad, even as participants lament how long the foreign military sales process takes.
US defense contractors have to respond to government demand to back-fill stockpiles for the military and aid in deterrence strategies. The government has to balance competing policy priorities to streamline arms transfers and increase oversight of where contractors’ equipment ends up.
Factors affecting US defense manufacturers are sometimes in tension with each other. The Pentagon has depleted weapon stockpiles to aid Ukraine’s response to Russia’s invasion and the ongoing war. There is pressure for the Defense Department to build up weapons and technology inventory to be used to meet its priorities aimed at countering China’s growing influence in the Asia-Pacific region. US allies in other areas request military materiel aid. And there are rules designed to ensure government control over and transparency into where US military capabilities end up.
In late February, the Biden administration released its Conventional Arms Transfer Policy, elevating non-economic considerations where the Trump administration position focused on bottom-line impacts for defense industrial base companies.
The policy document is a voluntary presidential decree that governs foreign military sales, which are bilateral agreements enforceable in the international court of law and include country-to-country negotiations and Defense Department contracts with the industry. Foreign military sales (FMS) approval is managed by the State Department in partnership with DOD’s Defense Security Cooperation Agency.
Under the Biden administration, there’s been an “unprecedented influence” of the State Department’s non-proliferation team and human rights team in the approval process for a foreign power, including US’s closest allies, to buy or receive weapons from the US, according to Keith Webster, vice president at the US Chamber of Commerce.
Policy experts say the memo aligns with the administration’s larger foreign policy on protecting human rights, rule of law and democratic values.
“It also kind of bolsters what the United States is doing in sending military support to Ukraine whose human rights are being violated,” said Amy Nelson, a fellow at the Brookings Institution.
“If you want to speed up the FMS system, ultimately you need to get DOD acquisition reform,” a State Department spokesperson said.
The private sector is facing global supply chain, financing, and skilled workforce issues as well as increased defense sector demand. The State Department spokesperson said the administration’s arms transfer policy is a “modest contribution towards these considerations.”
A DOD task force under Deputy Secretary of Defense Kathleen Hicks has been set up to streamline the foreign military sales process to support the US response to the war in Ukraine and increase the number of defense and strategic partnerships for innovation and industrial base development.
One way to accelerate the international arms transfer process would be to increase approvals for direct commercial sales between defense companies and foreign nations, Webster said. Otherwise, “the ability to truly transform this process is very, very limited.” Fixes would be restricted to supplying Ukraine, staffing DOD contracting offices, and boosting the domestic industrial base’s ability to back-fill US weapon stockpiles.
The inconsistent and slow-moving timelines of Federal Acquisition Regulation-based contracting make it difficult for defense companies to keep the right cadence of their production lines and plan for future DOD needs.
“We need to smooth out these requirement provisions. We need to have reliable appropriations. We’re coming up on a debt ceiling debate, possible government shutdown,” Webster said, also noting the likelihood of a year-long continuing resolution for government funding. “All of that is contrary to what industry is trying to amplify to restore health and defense industrial base for surge capability.”
Contractors will be vulnerable to the impact of a debt limit crisis. Immediate problems could include stop work orders, canceled contracts, and frozen, delayed, or reduced contract payments.
Part of the Biden arms transfer policy will also look at competitive financing for partners looking to buy American technology, budget-friendly sales of legacy platforms no longer used by DOD, and integrating exportability into platform development, according to the State spokesperson.
The document’s emphasis on human rights is a result of political pressures from internal constituencies, but the Biden policy doesn’t institute actual controls and considerations on where US-made weapons end up in the total arms supply chain.
The policy “does not displace the need for legislative oversight over US arm sales, including legislation that bakes human rights and civilian protection into the arm sales process as a matter of law,” said Annie Shiel, a senior adviser for nonprofit Center for Civilians in Conflict, which is waiting to see if and how the policy is implemented in practice.
Senate Foreign Relations Committee Chairman Sen. Bob Menendez (D-N.J.) is expected to re-introduce an updated version of his Safeguard Act (S. 1473) to update the Arms Control Act to screen other countries’ weapon use for possible human rights violations, according to congressional sources. The measure would prevent sales to countries committing genocide or war crimes. It would also mandate certain weapons be sold through the foreign military sales process, which gives more congressional oversight.
This list would include rockets, space launch vehicles, missiles, bombs and precision guidance equipment, armored combat vehicles, uncrewed and crewed aircraft, turbofans and turbojets for training pilots, drones, and aircraft used for defense or intelligence purposes.
Current US arms monitoring systems include the Defense Department’s Golden Sentry program for government-to-government foreign military sales and the State Department’s Blue Lantern program for arms sold via direct commercial sales. The Cold War-era monitoring is “designed to protect U.S. technology, not people. The word ‘use’ in end-use monitoring is an unfortunate misnomer,” according to the Center for Civilians in Conflict.
Golden Sentry involves visits to the nation’s security installations, inspections of US arms and storage, and embassy-level information collection. Enhanced end-use monitoring standards—mandated for certain defense articles or munitions-controlled items—emphasizes proprietary protection of US defense technology. The list includes switchblade drones, various missiles, joint-standoff weapons, aircraft infrared countermeasures, and communication safety equipment.
The Blue Lantern program may include pre-license, post-license, and post-shipment checks on the nation’s compliance with US government standards. These checks are more targeted than Golden Sentry and conducted based on potential risks.
For items deemed dual use—with commercial and military applications, like certain microelectronics or telecommunications components—end-use oversight is managed by the Commerce Department’s Bureau of Industry and Security export control list.
Competition with China is still reigning supreme when it comes to final determinations of arms sales.
The Pentagon’s response to China’s dominance in Asia includes increasing the US military presence there and boosting regional defense partnerships.
Maintaining defense relationships as part of a China-oriented posture also means providing weapons to countries in the Middle East, which includes top buyers of US arms.
Weapons sales to Saudi Arabia and Egypt have seen increased scrutiny as a result of their role in the humanitarian crisis in Yemen.
Despite the administration’s human rights statement in the arms transfer policy, the US is continuing to move forward “because strategic competition with China is a lot more important,” said Bilal Saab, Senior Fellow and Founding Director of the Defense and Security Program at the Middle East Institute. “If you really are serious about promoting, creating, developing more effective military partnerships in the Middle East, then you need to provide them with the right kind of tools. Otherwise, they’re going to go to the Chinese and the Russians.”
“The human rights narrative is not going to overwhelm the way we do things,” according to a person who’s in contact with National Security Council about this issue. “It’s kind of like business as usual.”
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