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Marcus Montgomery

How a legal loophole is helping Trump sell arms to Saudi Arabia

The Trump administration is exploiting a provision of the Arms Control Export Act [AFP]

Date of publication: 28 May, 2019

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Comment: Trump is using tensions with Iran to bypass Congress and push through weapons sales to Saudi Arabia and UAE, writes Marcus Montgomery.
President Donald Trump and his administration have decided to exploit a seldom-used loophole in US law to bypass Congress and sell a spate of arms to Saudi Arabia, the United Arab Emirates, and indirectly, Jordan.

The manoeuvre will result in more than 
$8 billion in munitions, aircraft maintenance, intelligence, and more being offered to the trio. This comes at a time when Riyadh and Abu Dhabi continue their assaults on Yemen's Houthi rebels, and tensions in the region more broadly are rising amid US and Iranian sabre-rattling.

The Trump administration is exploiting a provision of the Arms Control Export Act (ACEA), which governs the arms export process. Normally, once a potential arms sale clears a governmental review, the State Department notifies Congress of the desired sale.

Here there is - or at least there traditionally has been - an informal rule that says that key members of Congress can raise objections to the State Department prior to any formal notification. Historically, this has deterred administrations from moving forward as it tried to address the member's concerns and thus acted as an informal hold on potential arms sales.

Most recently, Senator Robert Menendez (D-New Jersey), the ranking member on the Senate Foreign Relations Committee, used this "hold" to bar $2 billion worth of precision-guided missiles from going to Saudi Arabia and the UAE.

But after that formal notification, Congress has 30 days to review the sale. If members disagree that the proposed sales are in Washington's best interest, any one member can author and introduce a "joint resolution of disapproval" that, with enough support, would prohibit the arms sale from moving forward.

The manoeuvre will result in more than $8 billion in munitions, aircraft maintenance and intelligence being offered to the trio

This informal hold was so useful because the process for passing a joint resolution of disapproval through both chambers of Congress with majorities large enough to override what would most certainly be the president's veto, is prohibitively difficult. In most cases, the informal hold was the only way to gain concessions from any administration.

Despite the fact that the 30-day review period has hardly, if ever, scuttled a proposed sale, the ACEA allows for all of these procedures to be cast aside if the president cites an "emergency". This exception, if invoked, would preclude any Congressional review and would allow for any arms sale the president identifies as necessary for addressing such an emergency to proceed accordingly.

It is this provision that the Trump administration is exploiting to circumvent Congress, citing Iranian behaviour in the region as the "emergency". But it is curious that the administration would opt for this route. There is likely no veto-proof level of opposition to the sales in Congress and the 30 day review period would not delay what will already be a lengthy process for an unbearable amount of time.

The move is ostensibly legal and though it has rarely been used, there is precedent.

Lawmakers, however, are incensed by the president's decision because it further erodes the oversight capabilities Congress had to influence US foreign policy decisions and relegates what is supposed to be a coequal branch of government to something more akin to a subordinate.

And this is not an isolated incident; President Trump has repeatedly ignored the will of Congress, most recently when he vetoed a War Powers Resolution that sought to end US support for and involvement in the Saudi-led war in Yemen.

Ultimately, opponents of the decision argue that this, like Trump's 
domestic emergency declaration, is just another example of the administration going around Congress when it finds itself stymied by the legislative branch.

The ACEA allows for all of these procedures to be cast aside if the president cites an 'emergency'

This offense is made worse by the administration's decision to cast Iran's undoubtedly destabilising activity in the region as an "emergency." Tehran has mastered its brand of low level unconventional conflict over decades, how is it that all of a sudden its behaviour has become an emergency?

Further, how does selling smart bombs to Riyadh and Abu Dhabi help protect the two against the "emergency" that is Iranian threats, when those missiles are likely to be dropped in Yemen?

Read more: Proxies as pretext for war with Iran

Democrats who have reviewed the intelligence regarding Iranian threats in the region claim that the potential threats are being embellished, and others argue that many of the threats facing the US and its partners are a direct result of US escalation.

Even more, many on Capitol Hill cite the fact that some of the 22 individual potential sales are, by no measure, crucial for addressing an emergency (eg., the years' long project of refitting Saudi fighter jets) as proof that no actual emergency exists.

Though the true nature of Iran's threat to the region can be debated, it is clear that this administration is unilaterally shifting US policy in the Middle East towards a more confrontational one. The question for Congress now is whether it will act to rein in the executive branch and reassert itself as a co-equal branch of government.

Lawmakers are incensed by the president's decision because it further erodes the oversight capabilities Congress had

Technically, both chambers could pursue stand-alone legislation to prohibit one or more of the proposed arms sales to Saudi Arabia or the UAE, but without the specified language in the ACEA that allows for guaranteed expedited consideration of joint resolutions of disapproval, there is hardly any chance Senator Mitch McConnell (R-Kentucky) would allow any legislation constraining the Trump administration to move forward in the Senate.

But Congress could flex its "power of the purse" to force changes in the administration's policy.

For instance, the White House and GOP-held Senate need the Democratic majority in the House to implement any "must pass" legislation (i.e., spending bills) to avoid the third government shutdown of Mr Trump's tenure.

Democrats in the House could play hardball with the White House and add language prohibiting arms sales to Riyadh and/or Abu Dhabi to the defense budget or other crucial spending legislation, and dare the Senate or White House to refuse to fund the government all for the right to sell lethal weapons to the Gulf states.

Whatever the method lawmakers choose to pursue, Congress must regain its voice in the discussion about US policy towards the Middle East.

Refusing to act will only cede yet more power to an increasingly imperial executive branch and this president - and future ones - will bypass Congress when he so chooses.

Marcus Montgomery is a Junior Analyst for Congressional Affairs at Arab Center Washington DC.

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, al-Araby al-Jadeed, its editorial board or staff.

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