Order Code RL31675
Report for Congress
Received through the CRS Web
Arms Sales: Congressional Review Process
December 20, 2002
Richard F. Grimmett
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Congressional Research Service ˜ The Library of Congress

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Arms Sales: Congressional Review Process
Summary
This report reviews the process and procedures that currently apply to
congressional consideration of foreign arms sales proposed by the President. This
includes consideration of proposals to sell major defense equipment, defense articles
and services, or the re-transfer to third party nations of such military items. In
general, the executive branch, after complying with the terms of applicable U.S. law,
principally contained in the Arms Export Control Act, is free to proceed with an arms
sales proposal unless Congress passes legislation prohibiting or modifying the
proposed sale. Under current law Congress must overcome two fundamental
obstacles to block or modify a Presidential sale of military equipment: it must pass
legislation expressing its will on the sale, and it must be capable of overriding a
presumptive Presidential veto of such legislation. Congress, however, is free to pass
legislation to block or modify an arms sale at any time up to the point of delivery of
the items involved. This report will be updated, if notable changes in these review
procedures or applicable law occur.

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Contents
Congressional Notification Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Congressional Disapproval by Joint Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Senate Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
House Floor Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Final Congressional Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Congressional Use of Other Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Presidential Waiver of Congressional Review . . . . . . . . . . . . . . . . . . . . . . . . 5
Examples of Congressional Opposition . . . . . . . . . . . . . . . . . . . . . . . . . 6

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Arms Sales: Congressional Review Process
Congressional Notification Requirements
This report reviews the process and procedures that currently apply to
congressional consideration of foreign arms sales proposed by the President. This
includes consideration of proposals to sell major defense equipment, defense articles
and services, or the re-transfer to other nations of such military items. In general, the
executive branch, after complying with the terms of applicable U.S. law, principally
contained in the Arms Export Control Act, is free to proceed with an arms sales
proposal unless Congress passes legislation prohibiting or modifying the proposed
sale. The traditional sequence of events for the congressional review of an arms sale
proposal has been the submission by the Defense Department (on behalf of the
President) of a preliminary or “informal” classified notification of a prospective
major arms sale 20 calendar-days before the executive branch takes further formal
action. This “informal” notification is submitted to the Speaker of the House (who
traditionally has referred it to the House International Relations Committee), and to
the Chairman of the Senate Foreign Relations Committee. This practice stems from
a February 18, 1976, letter of the Defense Department making a nonstatutory
commitment to give Congress these preliminary classified notifications. It has been
the practice for such “informal” notifications to be made for arms sales cases that
would have to be formally notified to Congress under the provisions of Section 36(b)
of the Arms Export Control Act (AECA)1. These “informal” notifications always
precede the submission of the required statutory notifications, but the time period
between the submission of the “informal” notification and the statutory notification
is not fixed. It is determined by the President. He has the obligation under the law
to submit the arms sale proposal to Congress, but only after he has determined that
he is prepared to proceed with any such notifiable arms sales transaction.
Under Section 36(b) of the Arms Export Control Act, Congress must be
formally notified 30 calendar-days before the Administration can take the final steps
to conclude a government-to-government foreign military sale of major defense
equipment valued at $14 million or more, defense articles or services valued at $50
million or more, or design and construction services valued at $200 million or more.
In the case of such sales to NATO member states, NATO, Japan, Australia, or New
Zealand, Congress must be formally notified 15 calendar-days before the
Administration can proceed with the sale. However, the prior notice thresholds are
higher for NATO members, Australia, Japan or New Zealand. These higher
thresholds are: $25,000,000 for the sale, enhancement or upgrading of major defense
equipment; $100,000,000 for the sale, enhancement or upgrading of defense articles
and defense services; and $300,000,000 for the sale, enhancement or upgrading of
1 22 U.S.C. 2776(b).

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design and construction services, so long as such sales to these countries do not
include or involve sales to a country outside of this group of nations.
Commercially licensed arms sales also must be formally notified to Congress
30 calendar-days before the export license is issued if they involve the sale of major
defense equipment valued at $14 million or more, or defense articles or services
valued at $50 million or more (Section 36(c) AECA2). In the case of such sales to
NATO member states, NATO, Japan, Australia, or New Zealand, Congress must be
formally notified 15 calendar-days before the Administration can proceed with such
a sale. However, the prior notice thresholds are higher for sales to NATO members,
Australia, Japan or New Zealand specifically: $25,000,000 for the sale, enhancement
or upgrading of major defense equipment; $100,000,000 for the sale, enhancement
or upgrading of defense articles and defense services, and $300,000,000 for the sale,
enhancement or upgrading of design and construction services, so long as such sales
to these countries do not include or involve sales to a country outside of this group
of nations. It has not been the general practice for the Administration to provide a 20-
day “informal” notification to Congress of arms sales proposals that would be made
through the granting of commercial licenses.3
A congressional recess or adjournment does not stop the 30 calendar-day
statutory review period. It should be emphasized that after Congress receives a
statutory notification required under Sections 36(b) or 36(c) of the Arms Export
Control Act, for example, and 30 calendar-days elapse without Congress having
blocked the sale, the executive branch is free to proceed with the sales process. This
fact does not mean necessarily that the executive branch and the prospective arms
purchaser will sign a sales contract and that the items will be transferred on the 31st
day after the statutory notification of the proposal has been made. It would, however,
be legal to do so at that time.
Congressional Disapproval by Joint Resolution
Although Congress has more than one legislative option it can use to block or
modify an arms sale, one option explicitly set out in law for blocking a proposed
arms sale is the use of a joint resolution of disapproval as provided for in Section
36(b) of the Arms Export Control Act. Under the AECA, the formal notification is
to be submitted to the chairman of the Senate Foreign Relations Committee and the
Speaker of the House. The Speaker has routinely referred these notifications to the
House International Relations [previously Foreign Affairs] Committee as the
2 22 U.S.C. 2776(c)
3 Similar notification requirements and reporting thresholds also apply to prospective re-
transfers of United States-origin major defense equipment, defense articles or defense
services as stipulated in Section 3(d) of the Arms Export Control Act (AECA); commercial
technical assistance or manufacturing licensing agreements (see Section 36(d) AECA), and
leases or loans of defense articles from U.S. Defense Department stocks (see Sections 62
and 63 AECA). As with arms sales, Congress can block any of these reportable transactions
by enacting a joint resolution of disapproval as stipulated in the Arms Export Control Act
(AECA) (see 22 U.S.C. 2753, 2776, 2796).

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committee of jurisdiction. Under this option, after receiving a statutory Section 36(b)
notification from the executive branch, opponents of the arms sale would introduce
joint resolutions in the House and Senate drafted so as to forbid by law the sale of the
items specified in the formal sale notification(s) submitted to the Congress. If no
member introduces such a measure, the AECA’s provisions expediting congressional
action, discussed below, do not take effect.
The next step would be committee hearings in both Houses on the arms sale
proposal. If a majority of either the House or the Senate committee supported the
joint resolution of disapproval, they would report it to their respective chamber in
accordance with its rules. Following this, efforts would be made to seek floor
consideration of the resolution.
Senate Procedures. At this point, it is important to take note of procedures
crafted to expedite the consideration of arms sales resolutions of disapproval. Since
1976, Section 36(b)(2) of the Arms Export Control Act has stipulated that
consideration of any resolution of disapproval in the Senate under Section 36(b)(1)
of the AECA shall be “in accordance with the provisions of Section 601(b) of the
International Security Assistance and Arms Export Control Act of 1976" (P.L.
94-329, 90 Stat. 729). Since 1980, this stipulation has also applied to resolutions of
disapproval in the Senate relating to commercially licensed arms sales under Section
36(c)(1) of the Arms Export Control Act. The purpose of Section 601(b) was to
establish rules to facilitate timely consideration of any resolution of disapproval in
the Senate. The rules set forth in Section 601(b) supersede the standing rules of the
Senate and among other things do the following:
! Give the committee with jurisdiction [the Senate Foreign Relations
Committee] 10 calendar-days from the date a resolution of
disapproval is referred to it to report back to the Senate its
recommendation on any such resolution (certain adjournment
periods are excluded from computation of the 10 days);
! Make it in order for a Senator favoring a disapproval resolution to
move to discharge the committee from further consideration of the
matter if the committee fails to report back to the Senate by the end
of the 10 calendar-days it is entitled to review the resolution (the
AECA expressly permits a discharge motion after 5 calendar-days
for sales to NATO, NATO nations, Japan, Australia and New
Zealand);
! Make the discharge motion privileged, limit floor debate on the
motion to one hour, and preclude efforts to amend or to reconsider
the vote on such a motion;
! Make the motion to proceed to consider a resolution of disapproval
privileged and preclude efforts to amend or to reconsider the vote on
such motion;

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! Limit the overall time for debate on the resolution of disapproval to
10 hours and preclude efforts to amend or recommit the resolution
of disapproval;
! Limit the time (one hour) to be used in connection with any de-
batable motion or appeal; provide that a motion to further limit
debate on a resolution of disapproval, debatable motion or appeal is
not debatable.
The Senate is constitutionally empowered to amend its rules or to effect a rule
change at any time. The fact that an existing rule is in Section 601 of the International
Security Assistance and Arms Export Control Act of 1976 is not an obstacle to
changing it by Senate action alone should the Senate wish to do so.
House Floor Procedures. The House of Representatives is directed by
Sections 36(b)(3) and 36(c)(3)(B) of the Arms Export Control Act to consider a
motion to proceed to the consideration of a joint resolution disapproving an arms sale
reported to it by the appropriate House committee as “highly privileged.” Generally,
this means that the resolution will be given precedence over most other legislative
business of the House, and may be called up on the floor without a special rule
reported by the Rules Committee. Unlike for the Senate, however, the AECA
contains no provision for discharge of the House committee if it does not report on
the joint resolution. If reported and called up, the measure will be considered in the
Committee of the Whole, meaning that amendments can be offered under the “five-
minute rule.” Nevertheless, amendments to joint resolutions disapproving arms sales
have apparently never been offered in the House.
The Rules Committee usually sets the framework for floor consideration of
major legislation in the House of Representatives, however, and could do so for a
joint resolution of disapproval. Upon receiving a request for a rule to govern
consideration of such a resolution, the House Rules Committee could set a time limit
for debate, exclude any amendments to, and waive any points of order against the
resolution. If the House adopted the rule reported by the Committee, it would govern
the manner in which the legislation would be considered, superseding the statutory
provision.
Final Congressional Action. After a joint resolution is passed by both the
House and the Senate, the measure would next be sent to the President. Once this
legislation reaches the President, presumably he would veto it in a timely manner.
Congress would then have to muster a two-thirds majority in both Houses to override
the veto and impose its position on the President.
Congressional Use of Other Legislation
Congress can also block or modify a proposed sale of major defense equipment,
or defense articles and services, if it uses the regular legislative process to pass
legislation prohibiting or modifying the sale or prohibiting delivery of the equipment
to the recipient country. While it is generally presumed that Congress will await
formal notification under Section 36(b) or 36(c) of the Arms Export Control Act
before acting in opposition to a prospective arms sale, it is clear that a properly

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drafted law could block or modify an arms sale transaction at any time -- including
before a formal AECA notification was submitted or after the 30-day AECA statutory
notification period had expired – so long as the items have not been delivered to the
recipient country.
Congressional use of its lawmaking power regarding arms sales is not
constrained by the reporting requirements of the Arms Export Control Act. In order
to prevail, however, Congress must be capable of overriding a Presidential veto of
this legislation, for the President would presumably veto a bill that blocked his wish
to make the arms sale in question. This means, in practical terms, that to impose its
view on the President, Congress must be capable of securing a two-thirds majority
of those present and voting in both Houses.
There are important practical advantages, however, to prohibiting or modifying
a sale, if Congress wishes to do so, prior to the date when the formal contract with
the foreign government is signed--which could occur at any time after the statutory
30-day period. These advantages include: (1) limiting political damage to bilateral
relations that could result from signing a sales contract and later nullifying it with a
new law; and (2) avoiding financial liabilities which the United States Government
might face for breaking a valid sales contract. The legislative vehicle designed to
prohibit or modify a specific arms sale can take a variety of forms, ranging from a
rider to any appropriation or authorization bill to a freestanding bill or joint
resolution. The only essential features that the vehicle must have are (1) that it is
legislation passed by both Houses of Congress and presented to the President for his
signature or veto and, (2) that it contains an express restriction on the sale and/or the
delivery of military equipment (whether it applies to specific items or general
categories) to a specific country or countries.
Presidential Waiver of Congressional Review
It is important to note that the President also has the legal authority to waive the
30-day statutory review period set out in the Arms Export Control Act. For example,
if the President states in the formal notification to Congress under Sections 36(b)(1)
or 36(c)(1) of the Arms Export Control Act that “an emergency exists” which
requires the sale (or export license approval) to be made immediately “in the national
security interests of the United States,” he is free to proceed with the sale without
further delay. He must provide Congress at the time of this notification a “detailed
justification for his determination, including a description of the emergency
circumstances” which necessitated his action and a “discussion of the national
security interests involved.”
Section 614(a) of the Foreign Assistance Act of 1961 (FAA), as amended4, also
allows the President, among other things, to waive provisions of the Arms Export
Control Act, the Foreign Assistance Act of 1961 (FAA), and any Act authorizing or
appropriating funds for use under either the AECA or FAA in order to make
available, during each fiscal year, up to $750 million in cash arms sales and up to
$250 million in funds. Not more than $50 million of the $250 million limitation on
4 22 U.S.C. 2364(a).

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funds use may be made available to any single country in any fiscal year through this
waiver authority unless the country is a “victim of active aggression.” Not more than
$500 million of cash sales (or cash sales and funds made available combined) may
be provided under this waiver authority to any one country in any fiscal year. To
waive the provisions of these Acts related to arms sales, the President must determine
and notify Congress in writing that it is “vital” to the “national security interests” of
the United States to do so. Before exercising the authority granted in Section 614(a),
the President must “consult with” and “provide a written policy justification to” the
House Foreign Affairs [International Relations] and the Senate Foreign Relations
Committees and House and Senate Appropriations Committees.
In summary, in the absence of a strong majority in both Houses of Congress
supporting legislation to block or modify a prospective arms sale, the practical and
procedural obstacles to passing such a law -- whether a freestanding measure or one
within the existing framework of the Arms Export Control Act -- are great. Even if
the Congress can pass the requisite legislation to work its will on an arms sale, the
President need only veto it and secure the support of one-third plus one of the
members of either the Senate or the House to have his veto sustained and permit him
to make the sale.
It should be noted that Congress has never successfully blocked a proposed arms
sale by use of a joint resolution of disapproval, although it has come close to doing
so (see text-box note below for a detailed legislative history). Nevertheless,
Congress has – by expressing strong opposition to prospective arms sales, during
consultations with the executive branch – affected the timing and the composition of
some arms sales, and may have dissuaded the President from formally proposing
certain arms sales.
Examples of Congressional Opposition. For example, in the fall of
1990, during the Persian Gulf crisis, the George H.W. Bush Administration
reportedly planned to make large arms sales of several advanced weapons systems
to Saudi Arabia. Some reports placed the value of a potential Saudi arms package
at over $20 billion. During executive branch consultations with Congress, it became
clear that there was significant opposition to such a large and controversial arms sales
package taking place so close to congressional adjournment when it would not be
possible for Congress to make a careful review of it. In response, this Bush
Administration submitted a smaller arms package of about $7 billion for Saudi
Arabia for formal congressional review in September 1990. This package was
composed of only those weapons systems deemed most urgently needed by the
Saudis and ones for which the need for quick American procurement decisions was
especially critical. Agreement was reached at the time between the Bush
Administration and Congress that final decisions on other major weapons sales to
Saudi Arabia would be deferred until Congress reconvened in January 1991 at the
earliest.

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SAUDI ARABIA MISSILES CASE
(1986)
On April 8, 1986, President Ronald Reagan formally proposed the sale to
Saudi Arabia of 1,700 Sidewinder missiles, 100 Harpoon missiles, 200 Stinger
missile launchers and 600 Stinger missile re-loads. On May 6, 1986, the Senate
passed legislation to block these sales (S.J.Res. 316) by a vote of 73-22. The
House concurred with the Senate action on May 7, 1986, by passing H.J.Res. 589
by a vote of 356-62. The House then passed S.J.Res. 316 by a voice vote and (in
lieu of H.J.Res. 589) sent it to the President. On May 21, 1986, President Reagan
vetoed S.J.Res 316. But, in a May 21 letter to then Senate Majority Leader Robert
Dole, President Reagan said he would not include the controversial Stinger
missiles and launchers in the sales proposal, in the hope that the Congress would
then agree not to block the other missile sales. On June 5, 1986, the Senate by a
66-34 vote, sustained the President’s veto of S.J.Res. 316, and the sale of the
Sidewinder and Harpoon missiles to Saudi Arabia proceeded.

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