Five Dangers of Giving Commerce Department Oversight of Firearms Exports
U.S. President Donald Trump’s “Buy American” agenda is taking a potentially deadly turn, with the administration expected to issue new regulations that would make it easier for U.S. firearms and related ammunition to reach terrorists, criminal organizations and corrupt and abusive foreign security forces.
The Trump administration’s proposed regulations would likely transfer responsibility for reviewing licenses to export certain types of weapons — including assault-style rifles and pistols and armor-piercing sniper rifles — from the State Department to the Commerce Department.
Although not as eye catching as an F-35, these small arms are often called “the real weapons of mass destruction.” Responsible for up to 1,000 deaths a day, these weapons also threaten U.S. service members around the world. The proposal has raised significant concerns, including from U.S. law enforcement agencies that have fiercely opposed the transfer of these items because of the increased risk that they may land in the hands of unintended end users.
There are five key dangers of shifting oversight of firearms exports to the Commerce Department.
First, there is an increased risk of exports to unauthorized end users and conflict zones. Under the Commerce Department system, companies can generally use several broad license exemptions to export military equipment without U.S. government approval. When the U.S. government shifts oversight of firearms exports to companies, it loses the ability to identify key warning signs, including risky middlemen, unusual routes and mismatched weapons systems, of a possible diversion of U.S. guns to terrorists, criminals or conflict zones. Without U.S. oversight, the government also couldn’t stop the sale of firearms to foreign security force units accused of serious human rights violations or corruption.
Second, a shift to the Commerce Department could compromise the United States’ ability to investigate and prosecute arms smugglers. The Trump administration’s proposal would likely eliminate the current requirement that individuals receive government approval before attempting to broker a deal to non-NATO countries for firearms controlled by the Commerce Department. The proposal might also remove the requirement that companies first register with the U.S. government before engaging in arms exports, which U.S. law enforcement has used to build investigations against illegal arms traffickers. Furthermore, the proposal could create greater legal ambiguity about restrictions on firearms exports and, thus, impede U.S. law enforcement’s efforts to prosecute cases of illegal arms trafficking. Indeed, if an arms exporter can show that a reasonable person would be confused by U.S. regulations, the illegal exporter could escape prosecution.
Third, the proposal risks losing key legal restrictions on dangerous arms transfers. Commerce Department regulations, unlike the State Department’s, are not tied to all federal laws that regulate security assistance, including the commercial export of defense articles to foreign governments that support terrorism, violate internationally recognized human rights norms or interfere with humanitarian operations as well as country-specific controls imposed on nations of concern, such as China. A shift to the Commerce Department would likely complicate, if not end, State Department reviews of a recipient's human rights violations, as the State Department bureau in charge of human rights may face greater difficulties in pressing for restraint on risky firearms exports. Such a shift would thereby dilute the State Department’s ability to prevent high-risk transfers.
Fourth, the Trump proposal risks eroding global norms on firearms exports. Over the past two decades, through bilateral and multilateral agreements, the United States has successfully encouraged governments around the world to adopt better laws and policies to stop irresponsible and illegal arms transfers. Many of these agreements note the need to review export licenses on a case-by-case basis, highlight the importance of brokering registration and licensing and contain other key controls. If the United States decides to reduce or remove some of these controls, many other countries may choose to do so as well, particularly if it allows them to better compete with the United States.
Finally, a shift would likely result in less transparency in arms sales. The proposal could eliminate both Congress’s and the public’s view of U.S. firearms sales authorizations and deliveries around the world because the Commerce Department’s annual reports cover only about 20 countries. Furthermore, there are no public end-use reports on arms exports authorized by the Commerce Department such as those for exports authorized by the State Department. The reports are useful to identify key trafficking patterns that can help avoid risky arms transfers.
Although the Commerce Department maintains a regulatory process for exports, its oversight is notoriously less robust than the State Department’s. Indeed, Congress has limited the executive branch’s authority to transfer military equipment to the Commerce Department to only those articles that do not have “substantial military utility.”
While firearms might not appear to hold the destructive power of many other conventional weapons systems, their potential impact can be devastating. As such, they deserve greater, not less, scrutiny when making export decisions.
This article originally appeared in Defense News on September 25, 2017.