On March 19, President Trump invoked emergency authorities to bypass the congressional review period for at least $16.5 billion in Foreign Military Sales (FMS) to security partners in the Middle East. The proposed sales take place against the backdrop of a metastasizing U.S. and Israeli war against Iran and Tehran’s subsequent targeting of civilian, military, and energy infrastructure in the Arab Gulf. Though circumstances in the region may reflect the sort of crisis that might justify the use of these extraordinary authorities, the increasing frequency of their invocation raises questions about the sincerity of emergency declarations, the degree to which they are necessary in supporting legitimate security challenges, and the norms surrounding congressional oversight of arms transfers.
The Emergency Sales at a Glance
The six proposed emergency transfers to three Middle East partners – Jordan, Kuwait, and the United Arab Emirates (UAE) – have a cumulative value of $16.53 billion. They include:
$70.5 million in aircraft and munitions support and related equipment for Jordan;
$8 billion to support eight Lower Tier Air and Missile Defense Sensor (LTAMDS) Radars for Kuwait;
$1.22 billion in Advanced Medium-Range Air-to-Air (AMRAAMs) for the UAE;
$644 million in F-16 munitions and upgrades for the UAE, including
3 GBU-39/B inert practice bombs,
1,500 GBU-39/B Small Diameter Bombs Increment I,
900 KMU-556 Joint Direct Attack Munition (JDAM) guidance sets
300 KMU-557 JDAM guidance set,
and a range of additional non-major defense equipment;
$4.5 billion to support one Long-Range Discrimination Radar with Terminal High Altitude Area Defense (THAAD) Integration for the UAE;
and $2.1 billion in Fixed Site-Low, Slow, Small Unmanned Aircraft Integrated Defeat System (FS-LIDS) and related equipment for the UAE.
There were also additional notifications that bypassed congressional review under the Direct Commercial Sales (DCS) process. Though these notifications are not publicly posted, media reports suggest the total value of the emergency proposed sales is approximately $23 billion.
A Good Faith Use or Simply Cutting Congress Out?
The Arms Export Control Act (AECA) requires congressional review of certain proposed arms sales before the Executive Branch may proceed with either a letter of offer and acceptance for Foreign Military Sales (FMS) or a license in the case of Direct Commercial Sales (DCS). Once submitted, the notification starts the clock on the congressional review period, which ranges from 15 to 30 days depending on the intended recipient. However, the AECA also provides the president with the authority to waive the review period if they determine an emergency exists requiring the immediate transfer of defense articles or services as a matter of national security.
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
While there is little doubt that the U.S. and Israeli war against Iran has plunged the region into a crisis, there remain questions as to whether the president’s use of emergency powers to bypass congressional review was driven by sincere necessity or by politics. For many of these proposed sales, it is unclear whether the defense articles are available for immediate transfer or whether it will take many weeks, months, or longer before they are ready for export. In a Thursday press release, Representative Gregory W. Meeks, Ranking Member of the House Foreign Affairs Committee, suggested that among the dozen or so defense articles covered in the proposed transfers, only one is readily available for export. In other words, the use of the emergency authority may have little practical effect in accelerating transfers to the region, effectively circumventing congressional review without sufficient cause or meaningful effect.
Direct Commercial Sales (DCS) – Sales of defense articles or defense services by U.S. industry directly to a foreign buyer, made under a Department of State issued license but not administered, managed, or negotiated by the U.S. government.
Foreign Military Sales (FMS) – Sales of defense articles or services made directly by the U.S. government to eligible foreign governments and international organizations.
Moreover, these transfers must be seen in the context of the increasingly frequent and potentially superfluous use of the AECA’s emergency waiver provision. While resorting to use of the emergency power was once a relatively rare occurrence, the executive branch has shown a greater willingness to invoke it, including in instances where the practical value of bypassing congressional review is dubious. Since 2019, there have been a number of such waivers, including for transfers to Jordan, Saudi Arabia, the UAE, Israel, and Ukraine. In several of these instances, critics noted that the transfers were unlikely to have a meaningful impact on the immediate military or security circumstances of the recipient governments but were instead intended to avoid legislative scrutiny or bypass congressional opposition.
Emergency Transfers and the Erosion of Congressional Oversight
Although the laws governing U.S. security cooperation clearly envision a strong congressional role in shaping arms transfer decisions, the practical influence of Congress over the process has waned considerably in recent years. The executive branch’s increasingly liberal use of emergency authorities has contributed considerably to that waning influence, circumventing one of the few mechanisms by which lawmakers are able to weigh in on U.S. arms transfers. Moreover, the more frequent use of emergency waiver provisions stacks atop a number of parallel trends and developments that all contribute to the continued erosion of congressional defense trade authority, including efforts to shrink the number of sales reviewed by Congress by raising the dollar value of notification thresholds; the bypassing of the tiered review process which provides congressional leaders advance notice of proposed arms transfers and the ability to place “holds” on formal notification; and the abrogation of reporting obligations that have kept important data and information from lawmakers and the public. Taken together, these trends have sapped Congress’ ability to fulfill its statutorily mandated oversight role over an incredibly consequential tool of American foreign policy.
What to Know About Emergency Arms Sales to the Middle East
By Elias Yousif
Conventional Arms
On March 19, President Trump invoked emergency authorities to bypass the congressional review period for at least $16.5 billion in Foreign Military Sales (FMS) to security partners in the Middle East. The proposed sales take place against the backdrop of a metastasizing U.S. and Israeli war against Iran and Tehran’s subsequent targeting of civilian, military, and energy infrastructure in the Arab Gulf. Though circumstances in the region may reflect the sort of crisis that might justify the use of these extraordinary authorities, the increasing frequency of their invocation raises questions about the sincerity of emergency declarations, the degree to which they are necessary in supporting legitimate security challenges, and the norms surrounding congressional oversight of arms transfers.
The Emergency Sales at a Glance
The six proposed emergency transfers to three Middle East partners – Jordan, Kuwait, and the United Arab Emirates (UAE) – have a cumulative value of $16.53 billion. They include:
There were also additional notifications that bypassed congressional review under the Direct Commercial Sales (DCS) process. Though these notifications are not publicly posted, media reports suggest the total value of the emergency proposed sales is approximately $23 billion.
A Good Faith Use or Simply Cutting Congress Out?
The Arms Export Control Act (AECA) requires congressional review of certain proposed arms sales before the Executive Branch may proceed with either a letter of offer and acceptance for Foreign Military Sales (FMS) or a license in the case of Direct Commercial Sales (DCS). Once submitted, the notification starts the clock on the congressional review period, which ranges from 15 to 30 days depending on the intended recipient. However, the AECA also provides the president with the authority to waive the review period if they determine an emergency exists requiring the immediate transfer of defense articles or services as a matter of national security.
While there is little doubt that the U.S. and Israeli war against Iran has plunged the region into a crisis, there remain questions as to whether the president’s use of emergency powers to bypass congressional review was driven by sincere necessity or by politics. For many of these proposed sales, it is unclear whether the defense articles are available for immediate transfer or whether it will take many weeks, months, or longer before they are ready for export. In a Thursday press release, Representative Gregory W. Meeks, Ranking Member of the House Foreign Affairs Committee, suggested that among the dozen or so defense articles covered in the proposed transfers, only one is readily available for export. In other words, the use of the emergency authority may have little practical effect in accelerating transfers to the region, effectively circumventing congressional review without sufficient cause or meaningful effect.
Direct Commercial Sales (DCS) – Sales of defense articles or defense services by U.S. industry directly to a foreign buyer, made under a Department of State issued license but not administered, managed, or negotiated by the U.S. government.
Foreign Military Sales (FMS) – Sales of defense articles or services made directly by the U.S. government to eligible foreign governments and international organizations.
Moreover, these transfers must be seen in the context of the increasingly frequent and potentially superfluous use of the AECA’s emergency waiver provision. While resorting to use of the emergency power was once a relatively rare occurrence, the executive branch has shown a greater willingness to invoke it, including in instances where the practical value of bypassing congressional review is dubious. Since 2019, there have been a number of such waivers, including for transfers to Jordan, Saudi Arabia, the UAE, Israel, and Ukraine. In several of these instances, critics noted that the transfers were unlikely to have a meaningful impact on the immediate military or security circumstances of the recipient governments but were instead intended to avoid legislative scrutiny or bypass congressional opposition.
Emergency Transfers and the Erosion of Congressional Oversight
Although the laws governing U.S. security cooperation clearly envision a strong congressional role in shaping arms transfer decisions, the practical influence of Congress over the process has waned considerably in recent years. The executive branch’s increasingly liberal use of emergency authorities has contributed considerably to that waning influence, circumventing one of the few mechanisms by which lawmakers are able to weigh in on U.S. arms transfers. Moreover, the more frequent use of emergency waiver provisions stacks atop a number of parallel trends and developments that all contribute to the continued erosion of congressional defense trade authority, including efforts to shrink the number of sales reviewed by Congress by raising the dollar value of notification thresholds; the bypassing of the tiered review process which provides congressional leaders advance notice of proposed arms transfers and the ability to place “holds” on formal notification; and the abrogation of reporting obligations that have kept important data and information from lawmakers and the public. Taken together, these trends have sapped Congress’ ability to fulfill its statutorily mandated oversight role over an incredibly consequential tool of American foreign policy.
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