Foreign Military Sales Congressional Review Process

Foreign Military Sales Congressional Review Process

April 19, 2016
Foreign Military Sales Congressional Review Process
Congressional Notification
a resolution within 15 or 30 calendar days after receiving
Section 36(b) of the Arms Export Control Act (AECA; P.L.
notification of the proposed sale, depending on the
90-629) governs congressional notification requirements for
destination of the proposed sale. Otherwise, the executive
proposed Foreign Military Sales (FMS). This section
branch is free to proceed with the sales process.
requires the executive branch to notify the Speaker of the
House, the Senate Foreign Relations Committee, and the
Past Congressional Opposition to Saudi
House Foreign Affairs Committee before the
Missile Sales
Administration can take the final steps to conclude a
Congress has never prohibited a proposed arms sale by use
foreign military sale. For sales to NATO member states,
of a joint resolution of disapproval. However, Congress
NATO, Japan, Australia, South Korea, Israel, or New
nearly did so in the case of President Ronald Reagan’s 1986
Zealand, the Administration must notify the committees 15
proposed missile sales to Saudi Arabia. On April 8, 1986,
calendar days before it may conclude a sale, enhancement,
President Ronald Reagan formally proposed selling
or upgrade of major defense equipment valued at $25
Sidewinder missiles, Harpoon missiles, and Stinger missile
million or more; a sale, enhancement, or upgrading of
launchers and re-loads to Saudi Arabia. The next month,
defense articles and defense services valued at $50 million
both the Senate and House adopted legislation prohibiting
or more; or a sale, enhancement, or upgrading of design and
this sale. President Reagan vetoed this legislation on May
construction services valued at $300 million or more.
21, 1986. But, in a letter dated the same day to then Senate
Majority Leader Robert Dole, the President wrote that he
For other destinations, the committees must be formally
would not include the Stinger missiles and launchers that
notified 30 calendar days before the Administration can
had been included in the proposed sale. On June 5, 1986,
proceed with the sale of major defense equipment valued at
the Senate narrowly sustained the President’s
$14 million or more, defense articles or services valued at
aforementioned veto, and the sale of the Sidewinder and
$50 million or more, or design and construction services
Harpoon missiles to Saudi Arabia proceeded.
valued at $200 million or more. Certain articles or services
listed on the Missile Technology Control Regime are
On October 14, 1981, the House adopted a resolution
subject to a variety of additional reporting requirements.
objecting to President Reagan’s proposed sale to Saudi
Arabia of E-3A airborne warning and control system
The Department of State submits to the committees an
(AWACS) aircraft, Sidewinder missiles, Boeing 707
informal notification of prospective arms sales subject to
refueling aircraft, and defense articles and services related
AECA reporting requirements between 20 and 40 days
to F-15 aircraft. An October 28, 1981, Senate vote on
prior to providing formal notification to the committees.
identical legislation failed, however, after President Reagan
made a series of written commitments to Congress
The President has the authority to waive the review periods
regarding the proposed sale. Congress later enacted
described above if the President notifies Congress that “an
legislation requiring the President to certify that the
emergency exists,” which requires the sale to proceed
commitments made in 1981 regarding the proposed sale had
immediately “in the national security interests of the United
been met prior to the delivery of the AWACS planes
States.” The President must provide Congress at the time of
(Section 127 of the International Security and Development
this notification a “detailed justification for his
Cooperation Act of 1985; P.L. 99-83).
determination, including a description of the emergency
circumstances” that necessitated this action and a
Other Notification Provisions
“discussion of the national security interests involved.”
The AECA contains congressional notification provisions
governing certain commercially licensed arms sales,
AECA and Congressional Options
prospective retransfers of U.S.-origin major defense
Pursuant to Section 36(b) of the AECA, the Administration
equipment, defense articles or defense services, and leases
may issue a letter of offer and acceptance (LOA) for a
or loans of defense articles from U.S. Department of
proposed FMS sale unless Congress enacts a joint
Defense stocks. The law also contains similar notification
resolution “prohibiting the proposed sale.” According to the
requirements, though not reporting thresholds, for
Defense Security Cooperation Agency, the LOA is “the
commercial technical assistance and manufacturing
legal instrument” used by the U.S. government “to sell
licensing agreements.
defense articles, defense services including training, and
design and construction services to a foreign country or
Joint Resolution Procedures
international organization under authorities provided” in the
The AECA has provisions that provide for expedited
AECA. The LOA “itemizes the defense articles and
congressional consideration of a joint resolution described
services offered and when implemented becomes an official
above.
tender” by the U.S. government. Congress must enact such
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Foreign Military Sales Congressional Review Process
Senate
 limit the time (one hour) to be used in connection with
Section 36(b)(2) of the AECA stipulates that Senate
any debatable motion or appeal; and
consideration of a resolution described above shall be “in
accordance with the provisions of Section 601(b) of the
 provide that a motion to further limit debate on a
International Security Assistance and Arms Export Control
resolution of disapproval, debatable motion or appeal is
Act of 1976” (P.L. 94-329). Those provisions, which
not debatable.
supersede the standing rules of the Senate,
House
 give the committee with jurisdiction [the Senate Foreign
The AECA directs the House of Representatives to consider
Relations Committee] 10 calendar days from the date a
a motion to proceed to the consideration of a joint
resolution of disapproval is referred to it to report back
resolution disapproving an arms sale reported to it by the
to the Senate its recommendation on any such resolution
appropriate House committee as “highly privileged.”
(certain adjournment periods are excluded from
Generally, this means that the resolution will be given
computation of the 10 days);
precedence over most other legislative business of the
House, and may be called up on the floor without a special
 make it in order for a Senator favoring a disapproval
rule reported by the Rules Committee. Unlike for the
resolution to move to discharge the committee from
Senate, however, the AECA contains no provision for
further consideration of the matter if the committee fails
discharge of the House committee if it does not report on
to report back to the Senate by the end of the 10-day
the joint resolution. If reported and called up, the measure
period described above (the AECA expressly permits a
will be considered in the Committee of the Whole, meaning
discharge motion after 5 calendar days for sales to
that amendments can be offered under the “five-minute
NATO, NATO countries, Japan, Australia, South Korea,
rule.” The Rules Committee could set the framework for
Israel, and New Zealand);
floor consideration of a joint resolution of disapproval. If
the House were to adopt the rule reported by the committee,
 make the discharge motion privileged, limit floor debate
the rule would govern the manner in which the legislation
on the motion to one hour, and preclude efforts to
would be considered.
amend or to reconsider the vote on such a motion;
For additional information, see CRS Report RL31675,
 make the motion to proceed to consider a resolution of
Arms Sales: Congressional Review Process, by Paul K.
disapproval privileged and preclude efforts to amend or
Kerr.
to reconsider the vote on such a motion;

Paul K. Kerr, Specialist in Nonproliferation
limit the overall time for debate on the resolution of
disapproval to 10 hours and preclude efforts to amend or
IF10392
recommit the resolution of disapproval;

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Foreign Military Sales Congressional Review Process

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