In the waning days of 2023, the Biden administration twice invoked a rarely used emergency authority to bypass congressional review of more than $250 million in weapons sales to Israel. The two transfers, one for 120mm tank shells and the other for 155mm artillery shells, come amidst growing concern over the severe humanitarian toll of Israel’s military campaign in Gaza and mounting criticism of the Biden administration’s seemingly unrestrained and unconditioned material support for the war effort. In bypassing Congress, the Biden administration is both circumventing an important oversight mechanism as well as exposing the erosion of congressional authority over U.S. arms transfers.
What is the Emergency Authority?
The Arms Export Control Act (AECA) mandates congressional review of certain proposed arms sales before either a Foreign Military Sale (FMS) or Direct Commercial Sale (DCS) may proceed. Depending on the recipient and type of transfer under consideration, the threshold value triggering notification varies, as does the time available to lawmakers to review the sale. Whatever the circumstances, the formal notification and review process is intended to enable congressional oversight and influence over U.S. arms transfers and ingrain the legislative branch as a key arbiter of security cooperation decisions.
However, the AECA also provides the President the legal authority to waive the congressional review period if they determine that an emergency exists requiring the immediate transfer of arms as a matter of national security. In effect, the AECA’s waiver provisions not only limit one of the only practical opportunities for Congress to potentially block a proposed sale (something which has never occurred in practice) but also shrink the time and space for public debate about the merits of a transfer, the risks it may pose, and the mitigation measures needed to address those risks.
The AECA waiver had traditionally been a sparingly used authority, exercised only a handful of times over the past several decades. However, the last few years have seen new and more regular use of the waivers. In 2019, amidst growing bipartisan opposition to U.S. military support to the devastating Saudi and Emirati-led war in Yemen, the Trump administration used the emergency authority to send more than $8 billion worth of arms to Riyadh and Abu Dhabi, among others, without congressional review. The incident sparked significant backlash from both Democratic and Republican lawmakers, especially as many assessments suggested that the use of the authority was aimed at avoiding congressional scrutiny rather than responding to a legitimate national security emergency.
The Biden administration has also used the authority for a 2022 transfer of ammunition to Ukraine. Against this backdrop, the administration’s use of the provision to authorize two transfers to Israel in rapid succession despite serious humanitarian concerns surrounding its conduct in Gaza seems to suggest a worrying normalization of Presidents waiving away vitally important congressional oversight of arms transfer decision making.
Emergency Waiver Use for Israel
On December 9, 2023, Secretary Blinken informed Congress of his determination that “an emergency exists that requires the immediate sale to the Government of Israel” of 120mm tank shells without any congressional review, invoking the AECA’s emergency waiver provision. The Secretary made a second such determination for 155mm artillery shells, notified to Congress on December 29. But while the circumstances in Israel and Gaza undoubtedly amount to a crisis, there are several reasons to be skeptical of the need to bypass congressional review for the transfer of these munitions. First, the U.S. government has already afforded Israel an expedited review process. The congressional review period for arms transfers to Israel is just 15 calendar days – half the standard timeframe for all but a handful of countries. Given this already brief review period, and the fact that the administration has yet to publicly disclose its “detailed justification” for invoking its emergency authority, the rationale for bypassing congressional review in this case merits scrutiny.
Table 1. Arms Transfer Notification Values Review Periods
| Recipient | Transfer Type | Congressional Review Period | Transaction Value Threshold for Major Defense Equipment | Transaction Value Threshold for Defense Articles | Transaction Value Threshold for Design and Construction | Transaction Value Threshold for Firearms |
| Israel, NATO, Japan, Australia, South Korea, and New Zealand | FMS | 15 Calendar Days | $25 million | $100 million | $300 million | N/A |
| DCS | 15 Calendar Days | $25 million | $100 million | $300 million | $1 million |
| All Other Recipients | FMS | 30 Calendar Days | $14 million | $50 million | $200 million | N/A |
| DCS | 30 Calendar Days | $14 million | $50 million | $200 million | $1 million |
Source: Congressional Research Service, “Arms Sales: Congressional Review Process,” January 4, 2024.
Increased scrutiny is also appropriate due to Israel’s unique military context. As a highly sophisticated military power with a strong defense industrial base, Israel is believed to maintain a considerable store of munitions. Coupled with the thousands of weapons the United States has already made available to Israel through other authorities and mechanisms, there is room to doubt whether Israel faces an acute ammunition shortage that requires bypassing the usual (and already exceptionally short) congressional review period.
Moreover, if Israel is indeed expending high explosive munitions in densely populated Gaza at such a rate that would necessitate emergency resupply, it should raise even graver humanitarian concerns. Human rights groups have already sounded alarm bells regarding the use of these very munitions in Gaza’s dense urban environment and their role in the deaths of thousands of civilians. Oxfam, for example, has produced research suggesting that, given Israel’s past employment of 155mm artillery, their use in the current conflict “would be virtually assured to be indiscriminate, unlawful, and devastating to civilians in Gaza.” More broadly, Israel’s pattern of use of all types of explosive weapons inside Gaza has devastated the small enclave, killed thousands of civilians, and severely inhibited humanitarian operations. Evidence that Israeli strikes are indiscriminate, are causing disproportionate harm to civilians and civilian objects, and may amount to war crimes or even genocide should all give pause to the administration’s desire to rush the transfer of these weapons.
Caution with regards to arms sales to Israel on humanitarian grounds is also wholly consistent with existing U.S. policy. Preventing U.S. arms transfers from contributing to atrocities is among the express aims of the Biden administration’s revised Conventional Arms Transfer policy, which explicitly commits the U.S. government to abstaining from arms transfers if it is assessed they are “more likely than not” to contribute to a range of abuses, including “attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law.” Given the serious concerns raised by human rights and humanitarian organizations regarding Israel’s military conduct in Gaza, efforts to bypass oversight mechanisms seem at odds with the commitments in the new policy.
The Role of Congress in the Arms Trade
Whatever its justification, the move by the Biden administration to bypass congressional review of arms transfers to Israel amidst mounting concern over the United States’ unconditional military support to the country illustrates Congress’ increasingly feeble grasp of its security cooperation oversight role. Despite being statutorily enshrined as an important arbiter of U.S. arms transfers, in practice, the mechanisms available to Congress to shape arms sales decisions are few and rife with loopholes.
Informal Notification
The informal notification process, a customary practice wherein the administration informs the Senate Foreign Relations Committee (SFRC) and House Foreign Affairs Committee (HFAC) of prospective arms sales ahead of formal notification, allows certain lawmakers to engage the executive branch on prospective sales, raise questions or concerns, and even place informal holds on transfers before the sale is officially introduced. Traditionally, the executive branch has refrained from proceeding with arms transfers without the consent of SFRC and HFAC. But this is a normative process, and dependent on the good faith commitment of the executive branch. No law prevents an administration from proceeding with a formal notification in the face of an informal hold, as exemplified by the Trump administration’s 2019 sales to Saudi Arabia and the United Arab Emirates, which proceeded without review and despite congressional opposition.
Formal Notification
Formal notification to Congress of certain arms sales provides a more concrete and public opportunity for oversight. These notifications are submitted to the Speaker of the House as well as HFCA and SFRC, triggering the review periods illustrated in Figure 1. This period provides the best opportunity for public engagement on arms transfers, including congressional debate as well as civil society advocacy and awareness raising. In short, the review period creates a moment when the administration must publicly justify and bear any political costs associated with its transfer decisions. Vitally, this stage is also when lawmakers are most likely to block a proposed arms sale, which they may do using the joint resolution of disapproval (JRD) procedures laid out in the AECA.
In practice, however, Congress has never successfully blocked a proposed arms sale using a JRD. The technical barriers to success are nearly insurmountable. Not only would a successful JRD require prompt passage of bicameral legislation, but there would also have to be sufficient congressional opposition to overcome a presidential veto – a high bar, and one that lawmakers failed to clear after President Trump vetoed the last successful JRD in 2019. In other words, the mechanism explicitly enumerated in the AECA for lawmakers to block arms transfers has proved to be of little practical use beyond the political signaling it can send.
Sub-Threshold Sales
While sales reaching certain dollar values are notified to Congress, many fall below that threshold and are, therefore, not subject to prior congressional review. By avoiding congressional as well as public scrutiny, these sub-threshold sales pose a serious oversight gap and could incentivize the breaking up of controversial or risky sales into smaller sub-packages. A 2020 Government Accountability Office report found that, since January 2017, the Department of State had approved 4,221 below-threshold arms transfers to Saudi Arabia and the UAE worth more than $11 billion. These sales proceed with virtually no congressional or public oversight and allow Presidents to shirk the political costs of authorizing sales that often carry considerable humanitarian and strategic risks.
Abundant Waiver Provisions for Security Cooperation
Looking beyond the AECA, most all legislation governing U.S. arms transfers and security cooperation provide for expansive executive branch authorities and caveats which severely limit opportunities for effective congressional oversight. Most notably, Section 614(a) of the Foreign Assistance Act (FAA) provides the President broad authority to waive provisions of both the FAA and AECA, or any act authorizing or appropriating funds under either of those statutes, to make available $750 million in cash arms sales and $250 million in funds to foreign recipients if deemed in the vital national security interests of the United States. The FAA also allows the President to transfer U.S. materiel from war reserve stockpiles to foreign governments, which, depending on the value or transfer authority, may proceed without congressional review.
Other legislation aimed at preventing irresponsible U.S. arms transfers also comes with significant waiver provisions. The Child Soldiers Prevention Act, which is intended to restrict certain U.S. arms transfers and military aid to governments complicit in the use or recruitment of child soldiers, contains a national interest waiver authority that has seen widespread use. Since the law took effect in 2009, Presidents have waived 97% of the law’s restrictions, allowing at least $6.36 billion in otherwise prohibited arms and assistance to flow to governments complicit in child soldier recruitment or use.
Conclusion
Despite a legal and regulatory framework that clearly envisions Congress playing a meaningful role in U.S. security cooperation oversight, the current security cooperation ecosystem is overwhelmingly subject to the will and preferences of the executive branch, and the ability of lawmakers to shape arms sales decisions or intercede in transfers they oppose is exceptionally circumscribed. President Biden’s use of the AECA’s emergency provision to transfer weapons to Israel despite grave humanitarian and human rights concerns is emblematic of an enterprise that is run by a narrowing set of stakeholders and without sufficient checks and balances that are key to democratic governance. In this context, Congress should consider what a more effective and meaningful approach to security cooperation oversight might look like, and how it can avoid the pitfalls that have made current guardrails so easy to ignore.
A Primer on the Emergency Declaration for Arms Transfers to Israel
By Elias Yousif
Conventional Arms
In the waning days of 2023, the Biden administration twice invoked a rarely used emergency authority to bypass congressional review of more than $250 million in weapons sales to Israel. The two transfers, one for 120mm tank shells and the other for 155mm artillery shells, come amidst growing concern over the severe humanitarian toll of Israel’s military campaign in Gaza and mounting criticism of the Biden administration’s seemingly unrestrained and unconditioned material support for the war effort. In bypassing Congress, the Biden administration is both circumventing an important oversight mechanism as well as exposing the erosion of congressional authority over U.S. arms transfers.
What is the Emergency Authority?
The Arms Export Control Act (AECA) mandates congressional review of certain proposed arms sales before either a Foreign Military Sale (FMS) or Direct Commercial Sale (DCS) may proceed. Depending on the recipient and type of transfer under consideration, the threshold value triggering notification varies, as does the time available to lawmakers to review the sale. Whatever the circumstances, the formal notification and review process is intended to enable congressional oversight and influence over U.S. arms transfers and ingrain the legislative branch as a key arbiter of security cooperation decisions.
However, the AECA also provides the President the legal authority to waive the congressional review period if they determine that an emergency exists requiring the immediate transfer of arms as a matter of national security. In effect, the AECA’s waiver provisions not only limit one of the only practical opportunities for Congress to potentially block a proposed sale (something which has never occurred in practice) but also shrink the time and space for public debate about the merits of a transfer, the risks it may pose, and the mitigation measures needed to address those risks.
The AECA waiver had traditionally been a sparingly used authority, exercised only a handful of times over the past several decades. However, the last few years have seen new and more regular use of the waivers. In 2019, amidst growing bipartisan opposition to U.S. military support to the devastating Saudi and Emirati-led war in Yemen, the Trump administration used the emergency authority to send more than $8 billion worth of arms to Riyadh and Abu Dhabi, among others, without congressional review. The incident sparked significant backlash from both Democratic and Republican lawmakers, especially as many assessments suggested that the use of the authority was aimed at avoiding congressional scrutiny rather than responding to a legitimate national security emergency.
The Biden administration has also used the authority for a 2022 transfer of ammunition to Ukraine. Against this backdrop, the administration’s use of the provision to authorize two transfers to Israel in rapid succession despite serious humanitarian concerns surrounding its conduct in Gaza seems to suggest a worrying normalization of Presidents waiving away vitally important congressional oversight of arms transfer decision making.
Emergency Waiver Use for Israel
On December 9, 2023, Secretary Blinken informed Congress of his determination that “an emergency exists that requires the immediate sale to the Government of Israel” of 120mm tank shells without any congressional review, invoking the AECA’s emergency waiver provision. The Secretary made a second such determination for 155mm artillery shells, notified to Congress on December 29. But while the circumstances in Israel and Gaza undoubtedly amount to a crisis, there are several reasons to be skeptical of the need to bypass congressional review for the transfer of these munitions. First, the U.S. government has already afforded Israel an expedited review process. The congressional review period for arms transfers to Israel is just 15 calendar days – half the standard timeframe for all but a handful of countries. Given this already brief review period, and the fact that the administration has yet to publicly disclose its “detailed justification” for invoking its emergency authority, the rationale for bypassing congressional review in this case merits scrutiny.
Table 1. Arms Transfer Notification Values Review Periods
Increased scrutiny is also appropriate due to Israel’s unique military context. As a highly sophisticated military power with a strong defense industrial base, Israel is believed to maintain a considerable store of munitions. Coupled with the thousands of weapons the United States has already made available to Israel through other authorities and mechanisms, there is room to doubt whether Israel faces an acute ammunition shortage that requires bypassing the usual (and already exceptionally short) congressional review period.
Moreover, if Israel is indeed expending high explosive munitions in densely populated Gaza at such a rate that would necessitate emergency resupply, it should raise even graver humanitarian concerns. Human rights groups have already sounded alarm bells regarding the use of these very munitions in Gaza’s dense urban environment and their role in the deaths of thousands of civilians. Oxfam, for example, has produced research suggesting that, given Israel’s past employment of 155mm artillery, their use in the current conflict “would be virtually assured to be indiscriminate, unlawful, and devastating to civilians in Gaza.” More broadly, Israel’s pattern of use of all types of explosive weapons inside Gaza has devastated the small enclave, killed thousands of civilians, and severely inhibited humanitarian operations. Evidence that Israeli strikes are indiscriminate, are causing disproportionate harm to civilians and civilian objects, and may amount to war crimes or even genocide should all give pause to the administration’s desire to rush the transfer of these weapons.
Caution with regards to arms sales to Israel on humanitarian grounds is also wholly consistent with existing U.S. policy. Preventing U.S. arms transfers from contributing to atrocities is among the express aims of the Biden administration’s revised Conventional Arms Transfer policy, which explicitly commits the U.S. government to abstaining from arms transfers if it is assessed they are “more likely than not” to contribute to a range of abuses, including “attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law.” Given the serious concerns raised by human rights and humanitarian organizations regarding Israel’s military conduct in Gaza, efforts to bypass oversight mechanisms seem at odds with the commitments in the new policy.
The Role of Congress in the Arms Trade
Whatever its justification, the move by the Biden administration to bypass congressional review of arms transfers to Israel amidst mounting concern over the United States’ unconditional military support to the country illustrates Congress’ increasingly feeble grasp of its security cooperation oversight role. Despite being statutorily enshrined as an important arbiter of U.S. arms transfers, in practice, the mechanisms available to Congress to shape arms sales decisions are few and rife with loopholes.
Informal Notification
The informal notification process, a customary practice wherein the administration informs the Senate Foreign Relations Committee (SFRC) and House Foreign Affairs Committee (HFAC) of prospective arms sales ahead of formal notification, allows certain lawmakers to engage the executive branch on prospective sales, raise questions or concerns, and even place informal holds on transfers before the sale is officially introduced. Traditionally, the executive branch has refrained from proceeding with arms transfers without the consent of SFRC and HFAC. But this is a normative process, and dependent on the good faith commitment of the executive branch. No law prevents an administration from proceeding with a formal notification in the face of an informal hold, as exemplified by the Trump administration’s 2019 sales to Saudi Arabia and the United Arab Emirates, which proceeded without review and despite congressional opposition.
Formal Notification
Formal notification to Congress of certain arms sales provides a more concrete and public opportunity for oversight. These notifications are submitted to the Speaker of the House as well as HFCA and SFRC, triggering the review periods illustrated in Figure 1. This period provides the best opportunity for public engagement on arms transfers, including congressional debate as well as civil society advocacy and awareness raising. In short, the review period creates a moment when the administration must publicly justify and bear any political costs associated with its transfer decisions. Vitally, this stage is also when lawmakers are most likely to block a proposed arms sale, which they may do using the joint resolution of disapproval (JRD) procedures laid out in the AECA.
In practice, however, Congress has never successfully blocked a proposed arms sale using a JRD. The technical barriers to success are nearly insurmountable. Not only would a successful JRD require prompt passage of bicameral legislation, but there would also have to be sufficient congressional opposition to overcome a presidential veto – a high bar, and one that lawmakers failed to clear after President Trump vetoed the last successful JRD in 2019. In other words, the mechanism explicitly enumerated in the AECA for lawmakers to block arms transfers has proved to be of little practical use beyond the political signaling it can send.
Sub-Threshold Sales
While sales reaching certain dollar values are notified to Congress, many fall below that threshold and are, therefore, not subject to prior congressional review. By avoiding congressional as well as public scrutiny, these sub-threshold sales pose a serious oversight gap and could incentivize the breaking up of controversial or risky sales into smaller sub-packages. A 2020 Government Accountability Office report found that, since January 2017, the Department of State had approved 4,221 below-threshold arms transfers to Saudi Arabia and the UAE worth more than $11 billion. These sales proceed with virtually no congressional or public oversight and allow Presidents to shirk the political costs of authorizing sales that often carry considerable humanitarian and strategic risks.
Abundant Waiver Provisions for Security Cooperation
Looking beyond the AECA, most all legislation governing U.S. arms transfers and security cooperation provide for expansive executive branch authorities and caveats which severely limit opportunities for effective congressional oversight. Most notably, Section 614(a) of the Foreign Assistance Act (FAA) provides the President broad authority to waive provisions of both the FAA and AECA, or any act authorizing or appropriating funds under either of those statutes, to make available $750 million in cash arms sales and $250 million in funds to foreign recipients if deemed in the vital national security interests of the United States. The FAA also allows the President to transfer U.S. materiel from war reserve stockpiles to foreign governments, which, depending on the value or transfer authority, may proceed without congressional review.
Other legislation aimed at preventing irresponsible U.S. arms transfers also comes with significant waiver provisions. The Child Soldiers Prevention Act, which is intended to restrict certain U.S. arms transfers and military aid to governments complicit in the use or recruitment of child soldiers, contains a national interest waiver authority that has seen widespread use. Since the law took effect in 2009, Presidents have waived 97% of the law’s restrictions, allowing at least $6.36 billion in otherwise prohibited arms and assistance to flow to governments complicit in child soldier recruitment or use.
Conclusion
Despite a legal and regulatory framework that clearly envisions Congress playing a meaningful role in U.S. security cooperation oversight, the current security cooperation ecosystem is overwhelmingly subject to the will and preferences of the executive branch, and the ability of lawmakers to shape arms sales decisions or intercede in transfers they oppose is exceptionally circumscribed. President Biden’s use of the AECA’s emergency provision to transfer weapons to Israel despite grave humanitarian and human rights concerns is emblematic of an enterprise that is run by a narrowing set of stakeholders and without sufficient checks and balances that are key to democratic governance. In this context, Congress should consider what a more effective and meaningful approach to security cooperation oversight might look like, and how it can avoid the pitfalls that have made current guardrails so easy to ignore.
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