An Analysis of the Obama Administration’s New Arms Sales Policy Directive
In the past few years, with little media attention or Congressional debate, the United States has engaged in record levels of weapons exports, many of them to the conflict-ridden Middle East and Persian Gulf region. U.S. arms sales agreements topped $60 billion last year, and in 2011, the last year for which full global statistics are available, U.S. corporate and governmental transfers accounted for three-quarters of the global trade.
On Wednesday January 15, the Obama administration offered a comprehensive justification of its approach to arms transfers by issuing the first official policy directive on conventional arms sales in nearly two decades. The document, Presidential Policy Directive 27, calls for active promotion of U.S. exports while simultaneously promising to show restraint in deciding who gets U.S. arms and arms-manufacturing technology. The revision of U.S. policy in this area was long overdue. Prior to the issuing of the new directive, official U.S. arms transfer policy had not changed for nearly three decades, since the Clinton administration signed Presidential Decision Directive 34 in February of 1995.
The most promising element of the new policy is its pledge to forego sales where there is a likelihood that the weapons transferred will be used to conduct genocide or other atrocities, violate international humanitarian law, or contribute to violations of human rights. The directive’s language on this score is more explicit than that contained in the prior policy, and it holds out hope that human rights will be restored to a central place in arms transfer decision making after years of being subordinated to other concerns. The language in the new policy directive mirrors the language and concepts contained in the United Nations Arms Trade Treaty, which the Obama administration signed last September.
Tom Kelly, the State Department's acting assistant secretary for political-military affairs, underscored the administration’s human rights commitment when he told Reuters that "we wanted to make sure that it's very clear that human rights considerations really are at the core of our arms transfer decisions."
The real question is how these new human rights criteria will be applied in practice. It will be important for Congress and the public to look closely at future cases and try to hold the administration to its commitments.
A second promising element of the new policy is its pledge to pay closer attention to how U.S. arms may end up being used in the future. For example, the policy directive notes that the administration will take into account “the risk that significant change in the political or security situation of the recipient country could lead to inappropriate end-use transfer of defense articles.” This is particularly relevant with respect to sales to regions undergoing rapid political change, like the Middle East and Persian Gulf.
The policy directive makes it clear, however, that the administration’s approach is at least as much about arms sales promotion as it is about arms sales restraint:
The United States government will provide support for proposed U.S. exports that are consistent with this policy. This support will include, as appropriate, such steps as: tasking our overseas mission personnel to support overseas marketing efforts of U.S. companies bidding on defense contracts; actively involving senior government officials in promoting transfers that are of particular importance to the United States; and supporting official Department of Defense participation in international air and trade exhibitions.
The balance between promotion and restraint and the strict application of the directive’s criteria will determine whether the administration’s new arms transfer policy will effectively safeguard human rights and promote broader U.S. security interests, rather than sacrificing these critical concerns to commercial considerations.
An equally important question is how the new policy will be implemented. It has been released in parallel with an ongoing administration effort to loosen arms export controls, an initiative that could inadvertently make it easier for U.S. weapons to fall into the hands of terrorists or human rights abusers. These dangerous transfers flow from the decision to take thousands of items off of the United States Munitions List (USML) and place them on the less restrictive Commerce Control List (CCL). This change will mean that these items will no longer require a license from the State Department to be exported, and will instead be subject to the less stringent controls maintained by the Department of Commerce. As Brittany Benowitz and Barry Kellman have noted in an April 2013 piece in Arms Control Today, the kind of rigorous human rights-related vetting of arms exporters and arms recipients that occurs under the State Department’s review process will no longer happen in the case of many militarily useful items.
The implications of this landmark change in how arms exports are handled are far reaching. Three dozen allies will be eligible to receive large numbers of military-related items without any license at all – a potential boon to smugglers who often set up front companies within the borders of U.S. allies in hopes of importing U.S. arms and arms components and re-transferring them to prohibited destinations like Iran and China. And former Justice Department officials and independent analysts have suggested that the removal of the requirement for many U.S. arms exporters to register with the State Department will make it harder to detect, prevent, and prosecute illegal transfers.
These potential negative outcomes are not the intent of the administration’s arms export control reforms. But they are likely outcomes that flow from the fact that the administration has tilted too far towards simplifying matters for arms exporting companies at the expense of maintaining or streamlining existing controls.
The combination of the new policy directive and the arms export control reform effort will have significant impacts on key arms transfer channels like the Pentagon’s Foreign Military Sales program, the Direct Commercial Sales program, and the Excess Defense Articles (EDA) program. If the human rights elements and regime stability elements of the new arms transfer policy receive their due, sales of major equipment like fighter planes and attack helicopters – which normally go via FMS channels – would be subjected to greater scrutiny. The Direct Commercial Sales program would change substantially as a result of arms export decontrol, as thousands of weapons and weapons components that formerly went via this channel (and therefore required a State Department license) will now be regulated by the Commerce Department and will be considered dual use transfers, not arms sales per se. And because the easing of arms export regulation includes taking some entire systems off of the U.S. Munitions List – including Huey helicopters and older model C-130 transfer planes – it will be easier to transfer these kinds of used systems to a wider range of countries under EDA.
The release of the new arms transfer policy directive provides an opportunity for Congress to take a closer look at the administration’s arms export decontrol initiative and make changes that will ensure that all significant military items continue to be carefully scrutinized on human rights grounds, and that any loopholes that may make it easier for smugglers to successfully transfer U.S. equipment into the wrong hands are closed. Doing so would better align the administration’s export control procedures with the intent of its new conventional arms export policy. It would also ensure that U.S. arms export decisions better promote U.S. security interests.
William Hartung is the director of the Center for International Policy's Arms and Security Project
This post was adapted and expanded from a piece that originally appeared in The Hill on January 17, 2014.