Foreign military sales

Army Lawyer, Jan-Feb, 2003

"Dear Uncle Sam, Thank You So Much for Your Military Assistance. You Are Too Kind."

The General Accounting Office (GAO) recently reported that Saudi Arabia was the largest Middle Eastern recipient of military assistance, (1) receiving approximately $33.5 billion of military equipment under the Foreign Military Sales (FMS) program from fiscal year 1991 through fiscal year 2000. (2) With equipment transfers totaling almost $18 billion during the same ten-year period, Israel came in as the second-largest Middle Eastern recipient of military assistance. (3) The Middle East's largest recipient of U.S. military aid in the form of Foreign Military Financing grants was Israel, totaling over $19 billion. Egypt placed a close second, at $13 billion. (4)

Executive Order--National Emergency Housecleaning

In 1999, former President Clinton issued Executive Order (EO) 13,129, (5) which declared the Taliban's harboring of Osama Bin Laden and the al-Qaeda terrorist organization a national emergency. (6) After the U.S. military campaign successfully ousted the Taliban from power, President Bush issued Executive Order (EO)13,268, terminating EO 13,129. (7) Although the Taliban were no longer in control of Afghanistan, President Bush used EO 13,268 to add the Taliban and Mohammed Omar to the list of terrorist leaders and organizations identified in the national emergency declared in response to the terrorist attacks of 11 September 2001. (8)

President Bush also restored normal trade relations with Afghanistan through Proclamation 7553 of 3 May 2002. (9) Through Proclamation 7553, President Bush hoped to "facilitate increased trade [between the United States and Afghanistan], which could contribute to economic growth and assist Afghanistan in rebuilding its economy." (10) Subsequently, the State Department amended the International Traffic in Arms Regulations (ITAR) to allow the government to grant licenses or approve exports of defense articles or services to the current interim government of Afghanistan. (11)

President Bush Waives Missile Proliferation Sanctions Imposed on Pakistan and Continues Certain National Emergencies (12)

To support the war against terrorism, the State Department waived missile proliferation sanctions against Pakistan for those transactions needed to support Operation Enduring Freedom. (13)

In other actions, the President continued emergency declarations with respect to Weapons of Mass Destruction, (14) Iran, (15) Iraq, (16) Cuba, (17) and the former Yugoslavia. (18)

"Sorry, No Act Today. Will an Executive Order Do?"

Last year, President Bush issued EO 13,222, (19) which declared a national emergency relating to the expiration of the Export Administration Act of 1979. (20) Through the issuance of EO 13,222, President Bush continued the provisions of the repealed Export Administration Act, the regulations established under the Act, (21) and delegations of authority, as if the Act was in full force and effect. (22) On 14 August 2002, President Bush signed Executive Order 13,222, (23) which continued the national emergency declaration for one year. The original declaration and the continuation were necessary because Congress failed to renew the Export Administration Act. (24)

State Department Export Licensing Procedures Need Improvement

The GAO recently criticized the State Department's export licensing procedures for processing delays, lost applications, and inconsistent licensing decisions. (25) The GAO reported that the lack of formal guidelines for determining when the State Department should refer license applications to other agencies was the primary cause of delays in the review process. (26) The GAO also stated that the State Department lacks adequate license tracking procedures, resulting in lost applications, (27) and that its licensing officers lacked adequate training, resulting in arbitrary and inconsistent results. (28) Subsequently, the State Department stated that it was planning and implementing a web-based export licensing program. (29) The GAO, however, characterized the State Department's proposed corrective action in its report as follows: "As we pointed out, past GAO work has proven that proceeding with information technology modernization without first correcting problems in current systems risks merely automating inefficient ways of doing business." (30)

Pick Your Poison--Commerce or State Jurisdiction Confusion for Missile Export Controls

The GAO also criticized the conflicting dual jurisdiction between the State Department and the Commerce Department over missile products and technology. (31) To "limit the proliferation of missiles capable of delivering nuclear, biological, and chemical weapons and their associated equipment and technology," the United States and six allies established the Missile Technology Control Regime (MTCR) in 1987. (32) The MTCR established export policy guidelines and a list of controlled missile systems, components and technologies (hereinafter Regime items). (33)

The GAO reported, however, that the United States has established conflicting export control regulations to fulfill its MTCR responsibilities. Under the authority of the Arms Export Control Act, (34) the State Department uses the U.S. Munitions List established in the International Traffic in Arms Regulations (35) to control Regime items. (36) Alternatively, under the Export Administration Act of 1979, (37) the Commerce Department identifies dual-use items and technologies in the Commerce Control List of the Export Administration regulations (38) to control Regime items. (39) The GAO identified two factors that have contributed to unclear jurisdiction for missile sensitive items and technologies: