Russia’s invasion of Ukraine and the intense pressure it has placed on Washington to expedite arms transfers to the region have given fresh attention to familiar claims from key stakeholders in the defense industry and Congress that overly burdensome arms control and defense trade regulations are inhibiting the United State’s ability to meet surging international demand and undermining Washington’s position as the security partner of choice among key allies. In an attempt to allay these long-standing concerns, and with non-coincidental timing, the State Department has released a summary of a 10-point plan to “retool” the Foreign Military Sales (FMS) process to better meet global demands for U.S. arms amidst rising geo-strategic tensions and, in short, reduce the time necessary to evaluate FMS cases.
The new plan comes just a few short months after the release of the Biden Administration’s revised Conventional Arms Transfer (CAT) policy, which promises a more evaluatively robust, human rights and civilian protection-centric, and restrained approach to U.S. security cooperation. How the proposed reforms square with commitments in the CAT policy remains to be seen, but for those in the human rights community, elements of the retooling are seen as potentially troubling. Given the vagueness of the public summary produced by State, several key questions can help illuminate how the proposed reforms might shape U.S. efforts to better assess the risks and consequences of arms transfers.
Question One – For the 5% of arms transfers not evaluated within 48 hours, which are the target of these reforms, what are the principal reasons for longer adjudication times?
The State Department’s summary notes that “While 95 percent of FMS cases are evaluated and approved by the Department of State within 48 hours, FMS 2023 examined how the Department’s review process can be improved for the remaining 5 percent of cases, which may entail complex policy issues and extensive interagency coordination.” For that remaining 5 percent, it would be worth knowing what “complex policy issues” are at stake. If it is the case that longer adjudication often reflects thorny policy debates about arms transfers to governments with questionable human rights practices or a history of abusive behavior, a more expeditious process could easily undermine efforts to mitigate civilian harm risks and belie commitments reflected in the revised CAT policy.
Question Two – How will a regional approach to FMS shape generalized anticipatory policy choices, assessment criteria, and the “case-by-case” nuance of individual arms transfer decisions?
The summary says that the U.S. government will develop a “regional approach” to arms transfer decision-making by “anticipating comparable demands for its neighbors and making anticipatory policy decisions for these countries’ potential future FMS purchases.” But how assessments, policy considerations, and evaluation of key risks will apply across multiple countries remains unknown. For example, what elements of the evaluation process will be pre-determined based on the region of the potential recipient government? Even within geographic regions, there can be enormous variations in human rights and civilian protection landscapes. Similarly, the political, diplomatic, and human security environments of regions are not static and require consistent re-evaluation as new information becomes available. Widening the evaluation aperture to consider policy choices and key risks across entire regions may be at odds with the long-standing demand from human rights advocates for greater nuance and contextually specific evaluations of the risks to civilians of U.S. arms transfers.
Question Three – What is the U.S. government’s vision for congressional engagement and consultation in a reformed FMS process?
The new plan makes vague suggestions about “eliminating duplicative reporting” and improving the quality of Congressional consultations to “demonstrate […] why the United States remains the security partner of choice.” While improving congressional engagement on arms-related issues is a laudable goal, the implicit suggestion that current reporting requirements create redundancies and inefficiencies raises questions. Though Congress has been essential in enhancing human rights considerations and oversight of U.S. security cooperation, executive branch reporting on security cooperation issues reaches very few desks on the Hill, narrowing the opportunity for lawmakers, including those on the relevant committees, to engage in the process or raise concerns. Similarly, changes to congressional consultations likely mean looking at the delicate “informal notification” system, a normative process by which the chairs of the Senate and House Foreign Relations Committees are informed of potential FMS cases and have an opportunity to either provide feedback on proposed sales or place holds, effectively blocking the transfer, before Congress is officially notified of the proposed sale. Though informal notifications have been an essential mechanism for holding up controversial arms sales to human rights-abusing governments, because the process is not enshrined in any statute, any reform efforts focused on expediting arms transfers may find a natural target in the “informal notification.” Understanding the potential consequences of the proposed reforms will require a far more granular explanation of the envisioned mechanics of a revamped congressional engagement ecosystem.
Conclusion
The proposed reforms to the FMS process need not inherently contribute to human rights or civilian protection risks in U.S. arms transfers. On the contrary, improving bureaucratic efficiency to free up resources that might instead be dedicated to implementing the more robust human rights commitments in the latest CAT policy would be a step in the right direction. Indeed, much of the new plan seems to be based on longstanding industry concerns around overly restrictive and burdensome regulations aimed at securing and protecting sensitive U.S. technologies. Nevertheless, the lack of detail in the publicly available plan leaves open the opportunity for speculation. Without more information, it is easy to see how some of the proposed reforms, whatever the intent, could have negative knock-on effects when it comes to improving human rights and civilian protection due diligence in the U.S. arms transfer process. To ensure these reforms align with the Biden administration’s commitments to ensuring a more responsible arms trade, the U.S. government should clarify how it plans to implement and operationalize its proposed reforms and how those reforms are in line with the objectives of the CAT policy.
FMS 2023 – Questions on The Administration’s Plans for Retooling Foreign Military Sales
By Rachel Stohl • Elias Yousif
Conventional Arms
Russia’s invasion of Ukraine and the intense pressure it has placed on Washington to expedite arms transfers to the region have given fresh attention to familiar claims from key stakeholders in the defense industry and Congress that overly burdensome arms control and defense trade regulations are inhibiting the United State’s ability to meet surging international demand and undermining Washington’s position as the security partner of choice among key allies. In an attempt to allay these long-standing concerns, and with non-coincidental timing, the State Department has released a summary of a 10-point plan to “retool” the Foreign Military Sales (FMS) process to better meet global demands for U.S. arms amidst rising geo-strategic tensions and, in short, reduce the time necessary to evaluate FMS cases.
The new plan comes just a few short months after the release of the Biden Administration’s revised Conventional Arms Transfer (CAT) policy, which promises a more evaluatively robust, human rights and civilian protection-centric, and restrained approach to U.S. security cooperation. How the proposed reforms square with commitments in the CAT policy remains to be seen, but for those in the human rights community, elements of the retooling are seen as potentially troubling. Given the vagueness of the public summary produced by State, several key questions can help illuminate how the proposed reforms might shape U.S. efforts to better assess the risks and consequences of arms transfers.
Question One – For the 5% of arms transfers not evaluated within 48 hours, which are the target of these reforms, what are the principal reasons for longer adjudication times?
The State Department’s summary notes that “While 95 percent of FMS cases are evaluated and approved by the Department of State within 48 hours, FMS 2023 examined how the Department’s review process can be improved for the remaining 5 percent of cases, which may entail complex policy issues and extensive interagency coordination.” For that remaining 5 percent, it would be worth knowing what “complex policy issues” are at stake. If it is the case that longer adjudication often reflects thorny policy debates about arms transfers to governments with questionable human rights practices or a history of abusive behavior, a more expeditious process could easily undermine efforts to mitigate civilian harm risks and belie commitments reflected in the revised CAT policy.
Question Two – How will a regional approach to FMS shape generalized anticipatory policy choices, assessment criteria, and the “case-by-case” nuance of individual arms transfer decisions?
The summary says that the U.S. government will develop a “regional approach” to arms transfer decision-making by “anticipating comparable demands for its neighbors and making anticipatory policy decisions for these countries’ potential future FMS purchases.” But how assessments, policy considerations, and evaluation of key risks will apply across multiple countries remains unknown. For example, what elements of the evaluation process will be pre-determined based on the region of the potential recipient government? Even within geographic regions, there can be enormous variations in human rights and civilian protection landscapes. Similarly, the political, diplomatic, and human security environments of regions are not static and require consistent re-evaluation as new information becomes available. Widening the evaluation aperture to consider policy choices and key risks across entire regions may be at odds with the long-standing demand from human rights advocates for greater nuance and contextually specific evaluations of the risks to civilians of U.S. arms transfers.
Question Three – What is the U.S. government’s vision for congressional engagement and consultation in a reformed FMS process?
The new plan makes vague suggestions about “eliminating duplicative reporting” and improving the quality of Congressional consultations to “demonstrate […] why the United States remains the security partner of choice.” While improving congressional engagement on arms-related issues is a laudable goal, the implicit suggestion that current reporting requirements create redundancies and inefficiencies raises questions. Though Congress has been essential in enhancing human rights considerations and oversight of U.S. security cooperation, executive branch reporting on security cooperation issues reaches very few desks on the Hill, narrowing the opportunity for lawmakers, including those on the relevant committees, to engage in the process or raise concerns. Similarly, changes to congressional consultations likely mean looking at the delicate “informal notification” system, a normative process by which the chairs of the Senate and House Foreign Relations Committees are informed of potential FMS cases and have an opportunity to either provide feedback on proposed sales or place holds, effectively blocking the transfer, before Congress is officially notified of the proposed sale. Though informal notifications have been an essential mechanism for holding up controversial arms sales to human rights-abusing governments, because the process is not enshrined in any statute, any reform efforts focused on expediting arms transfers may find a natural target in the “informal notification.” Understanding the potential consequences of the proposed reforms will require a far more granular explanation of the envisioned mechanics of a revamped congressional engagement ecosystem.
Conclusion
The proposed reforms to the FMS process need not inherently contribute to human rights or civilian protection risks in U.S. arms transfers. On the contrary, improving bureaucratic efficiency to free up resources that might instead be dedicated to implementing the more robust human rights commitments in the latest CAT policy would be a step in the right direction. Indeed, much of the new plan seems to be based on longstanding industry concerns around overly restrictive and burdensome regulations aimed at securing and protecting sensitive U.S. technologies. Nevertheless, the lack of detail in the publicly available plan leaves open the opportunity for speculation. Without more information, it is easy to see how some of the proposed reforms, whatever the intent, could have negative knock-on effects when it comes to improving human rights and civilian protection due diligence in the U.S. arms transfer process. To ensure these reforms align with the Biden administration’s commitments to ensuring a more responsible arms trade, the U.S. government should clarify how it plans to implement and operationalize its proposed reforms and how those reforms are in line with the objectives of the CAT policy.
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