WASHINGTON — The Trump administration has formally invoked an exemption that allows the White House to clear $8.1 billion in weapon sales for Saudi Arabia, Jordan and the United Arab Emirates over congressional objections, in a move that could create trouble for the defense industry.
For the last year, Sen. Bob Menendez, D-N.J., the ranking member of the Senate Foreign Relations Committee, has held up the sale of precision-guided munitions to Saudi Arabia and the UAE, over concerns of how they will be used as part of the Saudi-led actions against Iranian-backed fighters in Yemen, an operation that has led to a humanitarian crisis in that country.
Now, the administration is pushing through those weapons, as well as a mix of unmanned aerial vehicles and aircraft maintenance, using an obscure exemption to circumvent Congress’ ability to say no to foreign weapon deals.
The Arms Export Control Act contains an exemption to sell weapons to partners in case of an emergency, something designed to speed up the process amid a crisis. In this case, Trump appears to be using the tense situation with Iran — based on intelligence reports that have been widely questioned by Democrats, but supported by the Pentagon — as a reason to push through the weapons.
Around noon on Friday, Menendez said the administration officially informed the Senate it will use what his office called an “unprecedented and legally dubious” move to push the weapon sales through, breaking years of tradition where the Senate has a say over whether other nations can buy American defense goods.
“In trying to explain this move, the Administration failed to even identify which legal mechanism it thinks it is using, described years of malign Iranian behavior but failed to identify what actually constitutes an emergency today, and critically, failed to explain how these systems, many of which will take years to come online, would immediately benefit either the United States or our allies and thus merit such hasty action,” the New Jersey legislator wrote.
On that last point, it could in fact take years for the weapons to go under contract, be produced and then sold. However, there are alternatives the White House could use, particularly for munitions, including giving weapons from U.S. stockpiles to those nations or having governments cut ahead of others on the wait list.
Later in the afternoon, Secretary of State Mike Pompeo released a statement saying that 22 individual sales would be cleared through the exemption, saying the sales would help the countries “deter and defend themselves from the Islamic Republic of Iran.”
“I intend for this determination to be a one-time event,” Pompeo wrote, saying the exemption has been used “by at least" four previous administrations. “This specific measure does not alter our long-standing arms transfer review process with Congress.”
Sen. Chris Murphy, the Connecticut Democrat who first raised the possibility Trump would use a “loophole” to push the sales through this week, said the move “sets an incredibly dangerous precedent that future presidents can use to sell weapons without a check from Congress."
“We have the constitutional duty to declare war and the responsibility to oversee arm sales that contravene our national security interests. If we don’t stand up to this abuse of authority, we will permanently box ourselves out of deciding who we should sell weapons to,” Murphy added.
Justin Amash, a Michigan Republican who in recent weeks has become a vocal critic of Trump, joined the criticism, tweeting that Trump"is (again) going around Congress—this time to unilaterally approve billions in arms sales, including to the brutal Saudi regime. Congress must reclaim its powers. When will the legislative branch stand up to the executive branch?"
Both Menendez and Murphy hinted at introducing legislation to make sure Trump cannot use the emergency procedure for future sales, but gave no details on how that might work. And in his statement, Menendez specifically warned that U.S. industry may regret Trump’s latest move
“With this move, the President is destroying the productive and decades-long working relationship on arms sales between the Congress and the Executive Branch. The possible consequences of this decision will ultimately threaten the ability of the U.S. defense industry to export arms in a manner that is both expeditious and responsible,” according to Menendez.
Speaking to Defense News late Thursday, the senator expanded on that idea, saying that “any attempt to export under [the emergency] provision would be a violation of the Export Control Act. And so, [does industry] want to subject themselves to the liability of that? They understand that, and why have the industry break the protocol for something that’s really not of value to the industry?"
Analysts contacted about that statement expressed confusion about what legal liabilities industry could suffer, as under a foreign military sale the U.S. government makes a decision on whether a licence is legal or not. One analyst, who asked not to be named given the unknowns around the Trump situation, pointed out that industry can’t be liable for the government telling them something is legal, even if it is later decided the government was wrong.
However, Brittany Benowitz, a lawyer and former adviser to a member of the Senate Foreign Relations Committee, says getting clearance from the White House, especially for systems like precision guided munitions which have been shown to be used against civilian populations in Yemen, is a risky proposition for American arms manufacturers.
“It’s possible they could face civil liability or criminal liability for proceeding with the sale of weapons that have been previously used in violations of international law, including PGMs," Benowitz said. "Whether or not they would be entitled to any immunity would depend on if they knew their weapons had been misused. The mere fact they got a licence would not necessarily immunize them from liability.”
And legal questions aside, should this move by Trump result in new legislation that slows down the arms sale process, it could impact American defense firms that have been happy to see attempts over the past several years to speed up the process.
Joe Gould in Washington contributed to this report. This story was updated 5/24/19 at 5:16 PM EST.
Aaron Mehta was deputy editor and senior Pentagon correspondent for Defense News, covering policy, strategy and acquisition at the highest levels of the Defense Department and its international partners.