Should Congress Play a Role in Arms Sales?

Editor’s Note: The Trump administration’s proposal to end the informal practice of notifying Congress well in advance of major arms sales is a departure from long-standing norms and a means of decreasing congressional interference in controversial sales, such as those to help the Saudi war in Yemen. Alexandra Stark of New America explains why this shift would be a mistake, discussing both the role of Congress and why the notification process should continue.

Daniel Byman

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The Trump administration has proposed ending the informal practice of notifying Congress ahead of major arms sales. Despite the high barriers to Congress actually blocking an arms sale, ending this informal practice would close off one of the few channels of influence for the legislative branch to calibrate the United States’s relationships with its security partners around the world—and for citizen organizing to shape and respond to U.S. foreign policy.

Under the terms of the Arms Export Control Act, the president is required to formally notify Congress 30 days before the administration finalizes an arms sale worth $14 million or more (or defense articles or services worth at least $50 million) to a foreign government, or before the issuance of a license in the case of commercial sales. (The window is 15 days for NATO, NATO members, and other close U.S. partners Australia, Israel, Japan, New Zealand, and South Korea; the threshold values are also higher for this category of sales.) But, as Foreign Policy recently reported, the administration is now proposing to do away with informal arms sale notifications that the executive branch has traditionally submitted to Congress well before arms sales are finalized. This normative courtesy dates back to the 1970s, when Congress passed several pieces of legislation, including the 1973 War Powers Resolution and 1976 Arms Export Control Act, asserting its constitutional authority to conduct oversight of U.S. national security policy.

The president is also technically required to notify Congress if a recipient country violates the Arms Export Control Act. While it is rare for a president to do so, it has happened before: In 2007, for example, President George W. Bush informed Congress that Israel may have violated its agreements by using U.S.-supplied cluster munitions during the 2006 Lebanon War.

The Informal Notification Period and Congressional Holds

The informal notification period allows members of Congress to place holds on arms sales while they raise concerns, receive answers from the administration, and provide input before the deal is finalized. Even with such notifications in place, the barriers to Congress formally blocking a foreign sale are overwhelmingly high in practice. As arms control experts Diana Ohlbaum and Rachel Stohl note that “a major weapons sale proceeds unless Congress enacts a law to stop it. If Congress fails to pass a resolution of disapproval, and to override the inevitable veto, then the arms transfer can be finalized.” Indeed, Congress has never been able to successfully block a sale via a joint resolution of disapproval, although it came closest to doing so in 2019, when a Senate vote failed to override the president’s veto of a joint resolution of disapproval of an arms sale to Saudi Arabia.

Nevertheless, informal congressional notification still serves a critical purpose. During the informal review period, the executive shares information about a sale with Congress prior to the formal notification period. This review period allows the relevant committees to place informal “holds” on specific sales and raise concerns before the formal notification period. The process can also be beneficial for the administration. As Acting Assistant Secretary of State Tina Kaidanow testified in June 2017, the informal process allows for Congress’s “concerns [to be] addressed, in a confidential process with the Administration, so that [the United States’s] bilateral relationship with the country in question is protected.” The administration typically extends “the review period until we can resolve those concerns,” Kaidenow added.

Historically, Congress’s role in conducting oversight this way has been obscured, since in the past an administration would be more likely to end a potential deal that faced a great deal of congressional criticism, thus negating the need for Congress to hold a vote. As then-Senator Joe Biden wrote in 1984, “Congress has never vetoed an arms sale, but that does not mean that Congress has not exercised influence over such sales. The Administration knew that Congress could veto a sale, and that encouraged the Administration to work with Congress, giving early notification of proposed arms sales and taking the opinions of Congress into account.” This informal review is one of few mechanisms that Congress has to actually conduct oversight over U.S. national security policy. Removing this mechanism would continue the erosion of Congress’s role in national security policy over the past few decades. According to the New York Times, if enacted, the proposal “would effectively end congressional oversight of the sale of American weapons and offers of training to countries engaged in wars with high civilian casualties or human rights abuses.”

Informal congressional notifications subject arms sales to public scrutiny and the public will, affording Congress (and its constituents) an avenue for oversight of U.S. national security policy in the face of expansive executive authority, and allowing Congress and the public to assess the costs and benefits of these security partnerships. This allows the U.S. public to exercise meaningful leverage to address the problematic behavior of security partners—like Saudi Arabia and the United Arab Emirates—when they undermine U.S. strategic objectives and when presidential administrations would rather look the other way, as Congress’s ongoing battle with the Trump administration over U.S. support for the war in Yemen demonstrates.

The Battle Between Congress and the Executive Branch Over Yemen

According to Foreign Policy’s reporting, the move comes “amid mounting frustration from senior administration officials over informal holds from lawmakers on arms sales to countries like Saudi Arabia and the United Arab Emirates.”

Tension between the administration and Congress over arms sales to these Gulf countries dates back almost to the launch of the Saudi-led coalition’s intervention in Yemen’s civil war in March 2015. Since then, legislators, former policymakers, humanitarian nongovernmental organizations and international organizations have expressed grave concerns about the toll that the coalition’s bombing campaign has had on Yemeni civilians.

While the Obama administration tried to provide the Saudi-led coalition with tools and training to decrease civilian casualties, civilian casualties continued to mount. Yemen Data Project reported that in the first three years of the air campaign, 30 percent of all recorded airstrikes targeted nonmilitary sites. By late 2015, although Houthi forces were implicated in the deaths of hundreds of Yemeni civilians, the United Nations estimated that the majority of civilian casualties—about 60 percent—were due to the Saudi-led coalition’s air campaign. Airstrikes targeted civilian facilities, including schools and hospitals; an October 2016 double-tap airstrike on a funeral killed at least 140 people; and an August 2019 bombing of a school bus killed 40 children. These attacks drew widespread condemnation.

The humanitarian situation in Yemen and the egregious nature of Saudi airstrikes on civilian targets grabbed the attention of some members of Congress. By 2016, a bloc in Congress comprising both progressive-leaning Democrats and conservative Republicans with a libertarian perspective on foreign policy, began to cohere. That spring, Sen. Rand Paul introduced S.J. Res. 31 and Rep. Ted Lieu introduced a similar bill, H.J. Res. 90, on the House side, that would limit future arms transfers to Saudi Arabia. A proposed amendment to the fiscal 2017 National Defense Authorization Act (NDAA) to prohibit the transfer of cluster munitions to Saudi Arabia was narrowly defeated. Members also began introducing legislation citing the War Powers Resolution and U.S. support for the Saudi-led coalition. Unlike almost anything else in a polarized Congress, engagement in the arms sale process has been bipartisan, with both Republicans and Democrats placing holds on arms sales to the Gulf countries in recent years.

After this initial push, Congress began to build momentum in late 2018 due to two factors. First, the Trump administration’s full-throated support for Saudi Arabia and its promotion of arms sales as a means of creating jobs in the United States focused congressional concern on conducting oversight of U.S. foreign policy, and particularly on arms sales to Saudi Arabia and the UAE. Second, the murder of Saudi journalist and U.S. resident Jamal Khashoggi by Saudi government operatives directly linked to the de facto ruler of the kingdom, Crown Prince Mohammad bin Salman (or MBS), sparked a national debate about the efficacy and nature of the U.S. security partnership with Saudi Arabia and the Trump administration’s close ties to MBS in particular.

Sen. Bob Menendez, ranking minority member of the Senate Foreign Relations Committee, summarized Congress’s concerns about U.S. arms transfers to Saudi Arabia and the UAE in a letter to Secretary of State Mike Pompeo and Secretary of Defense James Mattis in June 2018: “I am not confident that these weapons sales will be utilized strategically as effective leverage to push back on Iran’s actions in Yemen, assist our partners in their own self-defense, or drive the parties toward a political settlement that saves lives and mitigates humanitarian suffering. Even worse, I am concerned that our policies are enabling perpetuation of a conflict that has resulted in the world’s worst humanitarian crisis.”

In April 2019, the president vetoed legislation to end U.S. military support for the Saudi-led coalition. Then, on May 24, the administration announced a potential sale worth more than $8 billion to Saudi Arabia, the UAE, and Jordan. Members of Congress ranging from Sen. Lindsey Graham to Rep. Ro Khanna reacted with fury, both to what appear

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