WASHINGTON ― A small, 2-year-old nonprofit think tank has taken a step that most advocacy organizations never dare try: It has sued the U.S. State Department to derail a $23 billion arms sale to the United Arab Emirates.
In a legal claim announced last month, the New York Center For Foreign Policy Affairs asserted that the Trump administration failed to provide a reasonable explanation for its decision to sell F-35 fighter jets and other weapons to the UAE, which places it in breach of the Administrative Procedure Act. It has asked the U.S. District Court for the District of Columbia to find the sale invalid.
The case is unusual, as is the theory of the case, but so is the Trump administration’s approach to the sale, said Brittany Benowitz, a legal expert on human rights and arms trade.
Such legal challenges rarely succeed, but if this one does, it could halt the deal even if Washington and Abu Dhabi follow through with plans to sign contracts in the waning days of the Trump administration.
“If you can say this deal was executed improperly and the contractor was on notice of that, which they are, then I think you can say it’s possible to stop the sale before delivery,” Benowitz said.
The State Department declined to comment on the pending litigation, in line with its policy.
The new lawsuit against the State Department came after a failed attempt in Congress to block the sale of 50 Lockheed Martin-made F-35 aircraft, 18 General Atomics-made MQ–9B Reaper drones and Raytheon Technologies-made munitions.
The Senate narrowly rejected a challenge to the sale amid arguments from the administration that the sales would make the UAE more interoperable with partners and defend itself from “heightened threats from Iran.”
Opponents said the fast-tracked process was incomplete, leaving questions about the security of U.S. weapons technology, the potential of sparking a Middle Eastern arms race, and the potential for the weapons to be used in Yemen and Libya; these arguments were echoed in the lawsuit.
The State Department came under scrutiny for irregularities in a previous sale. Its inspector general, who was later fired, found that a separate “emergency” sale of $8 billion in precision-guided bombs to Saudi Arabia and the UAE failed to “fully assess” or mitigate the risk of civilian casualties in Yemen.
To boot, Saudi Arabia and the UAE reportedly breached arms sale agreements with the U.S. by transferring American materiel to al-Qaida-linked fighters and other militant factions in Yemen. Lawmakers have also called for an an investigation into reporting that the UAE may have transferred American-made Javelin anti-armor missiles to the Libyan National Army in violation of a United Nations arms embargo.
“What we’re saying is that the State Department rushed this through without congressional oversight, they didn’t follow their own rules and they didn’t apply the same metrics that would guide approval to others,” said Justin Russell, the director of the New York Center For Foreign Policy Affairs. The organization conducts advocacy and research on the conflicts in Libya and Yemen.
“Congress tried to block [the sale] on the same merits and when that legislation failed, we said, ‘Wait a minute, we’ve got to stand up and do something.’”
The Administrative Procedure Act allows a court to “hold unlawful and set aside any agency action ... found to be in arbitrary, capricious, an abseils of discretion or otherwise not in accordance with the law.”
Here, the lawsuit argues the State Department didn’t find, as required under the Arms Export Control Act, that the sale “will strengthen the security of the United States and promote world peace” ― or present “a reasoned explanation” for its actions as required by the Administrative Procedure Act.
In 2019, the Campaign Against the Arms Trade won a U.K. Court of Appeal ruling to ban new arms sales to Saudi Arabia. The government has since renewed sales, and CAAT applied for judicial review into the legality of the U.K. government’s decision to renew arms sales to Saudi Arabia.
In the U.S., there has not been a successful court case of targeting government-to-government sales in recent years, according to Benowitz. What’s also unusual about the New York Center For Foreign Policy Affairs’ approach is that it doesn’t rely on a human rights argument but rather points to aberrations in the process ― particularly past end-use violations that ought to have have disqualified the UAE, she said.
“There have been court challenges to arms sales in the past on human rights grounds, but this challenge on national security grounds under the Administrative Procedure Act is unprecedented,” she said. “It’s rare because we have never had a record of irregularities like the one we have now.”
By Benowitz’s reckoning, if a finalized deal is invalidated in the courts and it is found that the deal never should have been entered in the first place, its unlikely the U.S. could be penalized financially by the UAE.
“To get a remedy, or damages, under contract law, you have to have ‘clean hands,’ so it would be difficult for the Emiratis to recoup,” she said.
Joe Gould is the Congress reporter for Defense News.