[Not too long ago we published a blog about the Pope’s address to our most excellent Congress.[1] He covered a lot of ground in that speech, and at one point asked the nations of the world, including us, to abolish the international arms trade. “Why,” he asked, “are deadly weapons being sold to those who plan to inflict untold suffering on individuals and society? Sadly, the answer, as we all know, is simply for money: money that is drenched in blood, often innocent blood.”[2] The world’s silence about the arms trade is “shameful and culpable,” he said, and the whole business should be stopped.

Well, he got our attention with that. The U.S., of course, is a big vendor of advanced weaponry. Recently we accounted for over 25% of weapons deliveries in the world[3]. But that’s not the whole issue, is it? Do we sell the arms just to make money, or to protect domestic jobs, or are there other reasons as well? Our view last time – in case you didn’t notice – was that corporate greed and domestic jobs are important motivators, but aren’t the whole story.

How do I know that? Well, our laws say so. The arms trade is authorized by law and somewhat encouraged in this country. I’m not looking to be the resident expert on this, so I asked Larry, our retired lawyer, to look at the rules and tell us about them. He agreed but, of course, with some reservations. I’ll let him speak for himself.]

What Larry Doesn’t Know

Thank you. The first thing I’m going to say is that I don’t have any inside information about weapons exports, or at least any that’s less than 30-40 years old. What I do have is a current copy of the U.S. Code, and some other recent publications. So I’m going to try to do an intelligent reading of that stuff, and describe what’s there. Also, I don’t know anything about the illegal trade in weapons, if there is one; and I’m retired, so I’m not looking for clients in that or any other area.

The only way I would know about illegal weapons sales is if a story about that hit the New York Times, or some other newspaper. If you see a story about that you should call the Times reporter(s), not me. And finally, I don’t know anything about highly classified programs, authorized for the intelligence community or other Government folks. I haven’t seen anything like that in decades.

[Are you saying that CIA, etc. programs exist, but you don’t know the details? Or that they don’t exist?]

I’m saying I don’t know about any current programs, one way or the other, and I’ve forgotten the old stuff. If you want to study highly classified programs, you should check with Edward Snowden or other reliable leakers, or the Chinese. No doubt they have better information than the rest of us.

[Fine, tell us about the rules. We can discuss later if anyone follows them.]

DoD has published a nifty little pamphlet, called the Foreign Customer Guide, which describes in simplified terms the way we sell arms to other countries.[4]  You can get it online. [Its big cousin, the DoD Security Assistance Management Manual (SAMM), also is available on the internet.[5]]

Authorization

Weapons sales generally fall under the rubric of Security Cooperation. DoD’s agent for this kind of work is the Defense Security Cooperation Agency (aka, the DSCA).[6] As of 2014, the Agency says, the U.S. had “business with over 224 countries and international organizations around the world.”[7] There are two primary legal authorities for such activities: the Arms Export Control Act (the AECA)[8] and the Foreign Assistance Act of 1961 (the FAA).[9] Both are codified in Title 22 of the U.S. Code.

According to the AECA, the ultimate goal of the United States is to foster a world which is “free from the scourge of war and the dangers and burdens of armaments; in which the use of force has been subordinated to the rule of law; and in which international adjustments to a changing world are achieved peacefully.”[10]

Nevertheless, the AECA also recognizes that the U.S and “other free and independent countries” need “effective and mutually beneficial defense relationships” to maintain the peace. Defense equipment is costly, and the costs are not shrinking.  “Because of the growing cost and complexity of defense equipment, it is increasingly difficult and uneconomic for any country, particularly a developing country, to fill all of its legitimate defense requirements from its own design and production base.”[11]

This reality leads to an obvious conclusion, i.e., that the U.S. and its allies need to cooperate in developing and deploying defense equipment, and hopefully standardize much of it to enhance its operational capability. This was done by the NATO countries, for example, when they adopted the .556 x 45 mm rifle cartridge – originally developed by the U.S. – as a standard for NATO forces.[12] De facto standardization also occurs when the U.S. sells a common weapons system, say a fighter jet, to numerous allies. This is not just my interpretation. DoD has held the same view for many years.

When you get a little older, it’s dangerous to just remember things; so I looked for some of my old favorite references[13] for confirmation. Eventually I located a 1986-1987 version of the venerable Armed Services Pricing Manual[14], which gave DoD contracting officers, etc., of that time detailed guidance on how to analyze and negotiate weapons contracts. It also stated the policy case for foreign military sales in the mid-1980’s. “[The] objective of United States foreign military sales is to promote the defensive strength of friends and allies.”[15] Also, by selling U.S. equipment to allies, the U.S. can “promote the concept of cooperative logistics and equipment standardization and offset in part the unfavorable balance of payments resulting from military deployments abroad.”[16] That’s pretty much the same rationale used today.

[OK, you’ve convinced me. Our Government believes it has the legal authority to sell or facilitate sales of weapons abroad. How does it do that?]

Selling Weapons

Basically a foreign government can buy U.S. weapons by (i) going through DoD, and its Foreign Military Sales program, or (ii) by making a direct purchase from the manufacturer. Each approach has advantages and disadvantages, and generally they don’t overlap. The Foreign Customer Guide says “DoD is generally neutral” as to which way an international customer should buy weapons.  “However, as a matter of policy, the [United States] will not entertain a potential FMS case with you [the foreign purchaser] if you are already engaged in [direct negotiations] with a U.S. contractor.”[17] Also there are times when DoD may require foreign buyers to work through the FMS process.[18]

[Well, you’ve certainly made that clear. Foreigners can buy U.S. weapons through DoD, or directly from manufacturers, except when they can’t. Where are you going with this? And for that matter, what is this “FMS process” and what is an “FMS case?”]

Ask and you shall be answered.

How Foreign Military Sales Work

The FMS process is as follows. First, an authorized representative of the foreign government submits a Letter of Request (LOR) to the U.S. for the desired defense articles and services. If the U.S. agrees to the request, it will draft a government-to-government agreement, and submit it to the purchaser. This document is called a Letter of Offer and Acceptance (LOA). Once the LOA is accepted by the foreign purchaser, DoD then writes a standard contract with the U.S. vendor for the required items and services. The contract is “standard” in that it follows traditional guidelines for such things, and the laws and regulations applicable to U.S. contracts.[19] The foreign purchaser is not a party to the contract, and cannot sue under it.

Even so, there are advantages to foreign governments when they go this route. They are plugging into an established procurement system with experience in buying the items involved. There’s also a possibility, it is said, that prices may be lower if DoD “is able to combine [the FMS] purchase with one of its own to achieve greater economy of scale.” In addition, DoD’s direct involvement “ensures” that all of the necessary training, support and sustainment are considered to give “lasting operational capability” for the items bought. And finally, “[a]ny contracts with U.S. defense contractors, if needed, will be written by the USG using standard USG competitive contracting procedures, to include robust oversight and auditing.”[20]

Direct Commercial Sales

These are commercial contracts negotiated directly between a foreign purchaser and a U.S. defense contractor.  They are not administered by the United States Government. They do require, however, an export license issued by the State Department’s Office of Defense Trade Controls. The U.S. contractor is responsible for obtaining such a license. Export licenses are subject to U.S. International Traffic in Arms Regulations (the ITARS).[21] Countries might elect to skip the FMS process and go with a direct commercial sale if (i) their military requirements are significantly different from DoD’s, (ii) they have a sophisticated procurement staff with experience in defense systems, or (iii) the “purchasing government is seeking to establish a relationship between a U.S. manufacturer and its own domestic industry.”[22] Or they may simply not like DoD.

Conclusion

 [Well, this has all been very interesting, and you’ve given us a pretty good introduction the way U.S. weapons are sold – legally – overseas. But you really haven’t answered the Pope. “Why,” he asked, do we sell “deadly weapons … to those who plan to inflict untold suffering on individuals and society?” [23] Does our Government make weapons sales, or authorize them, to strengthen our allies, and strengthen our mutual defense; or do we do it for the money?]

You’re right. I haven’t answered that question; I ran out of time. In any case, I’m not so sure that the motives of particular individuals are all that important. The only question, to my way of thinking, is whether a particular sale makes sense from a defense standpoint. For example, selling weapons to a failed state, or an enemy, most likely wouldn’t make a lot of sense. We would never know when the weapons might be resold, given away, or otherwise turned against us or our interests. The same could be said for selling weapons to revolutionary groups.

So to answer the Pope I’d have to look first at the controls our Congress and others have place on weapons sales, and see if they make sense; and then perhaps at some cases where arguably we made a mistake in trusting this or that purchaser. That last part would be tough, of course, because nobody here has any inside information.

[Fine; you’ve done about all you can do for now, and I’m tired, even if you aren’t. But I am looking forward to the next installment. You’ll take a close look at the State Department’s role in these activities, won’t you? I understand the Secretary of State is responsible for continuous supervision and general direction of Security Assistance programs. And I’d like to see what limits Congress has put on weapons exports. Perhaps those limitations should be changed, or improved.]

Yes, I’ll do all of that and more.

[1] See the blog of 09/30/2015, The Pope Speaks, available at https://opsrus.wordpress.com/2015/09/30/the-pope-speaks/

[2] You can find transcripts of the Pope’s various addresses in lots of places. Some of these web sites allow you to see a transcript, but make it difficult to download. Others want to charge you for it. That’s modern capitalism at work. Take something that’s free, and sell it to others. You should avoid these problematic sources, and instead go to the Vatican for your [free] copies of any of the Pope’s addresses in the U.S. Transcripts [and translations] are available from Vatican Radio, at http://www.news.va/en/source/vatican-radio .  That’s where we got ours.

See Vatican Radio, Pope Francis makes historic address to U.S. Congress (September 24, 2015) at p. 8, 9. Please note that our version of this document is not paginated, so the page numbers we reference are our estimates.

[3] Actually a current estimate is 29%. See the SIPRI Arms Database, available at http://www.sipri.org/googlemaps/2014_of_at_top_20_exp_map.html

[4] See, Department of Defense, Security Cooperation Agency, Foreign Customer Guide (October, 2014) (hereafter, the Foreign Customer Guide, at p. __), available at http://dsca.mil/publications . Actually, for anybody interested in the field, the publications list at this site is quite impressive.

[5] See Department of Defense, DoD 5105.38-M, Security Assistance Management Manual (SAMM), available at http://www.samm.dsca.mil/ .

[6] DSCA has a very useful website. You can find it at http://www.dsca.mil/

[7] See Foreign Customer Guide at p. 4.

[8] See 22 U.S.C. §2751 et seq., as amended, available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE-2010-title22-chap39.htm

[9] See 22 U.S.C. §2151 et seq., as amended, available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE-2010-title22-chap32-subchapII.htm

[10] See 22 U.S.C. §2751, as amended.

[11] Id.

[12] An example, of course, is the .556 NATO round originally developed by the U.S., and today is a standard cartridge for NATO forces. For more information on this, see the Wikipedia entry at https://en.wikipedia.org/wiki/5.56%C3%9745mm_NATO

[13] One good source for the old stuff seems to be the Defense Acquisition University, Knowledge Repository & Acker Archives, available at  http://www.dau.mil/AckerLibrary/default.aspx

[14] I found the 1986 -1987 version. It’s in two volumes, and is available in a pdf version without charge. Don’t pay anybody else for it. See DoD, Armed Services Pricing Manual, Vol. 1 (1986), available at http://www.library.dau.mil/ASPM_v1_1986.pdf ; DOD, Armed Services Pricing Manual, Vol. 2 (1987), available at http://www.library.dau.mil/ASPM_v2_1987.pdf . The Chapters in the two volumes are numbered consecutively so henceforth the ASPM will be cited simply as ASPM at Chapter __.

[15] See ASPM at Chapter 9, §9.4, Pricing Procurements for Foreign Military Sales, p. 9-26.

[16] Id. Does anyone talk about the balance of payments anymore?

[17] See Foreign Customer Guide at p. 5.

[18] Id. “For example, the DoD requires all U.S. military training to be obtained through FMS. The DoD may also require defense articles to be sold “FMS-only.” Two common reasons for this are to ensure the security of sensitive technologies and the control of weapons and munitions to prevent proliferation.”

[19] For those of you who are insiders, we’re talking here about the Federal Acquisition Regulation (the FAR) and the Defense Federal Acquisition Supplement (the DFARS). The FAR is available online at https://www.acquisition.gov/?q=browsefar ; the DFARS at http://www.acq.osd.mil/dpap/dars/dfarspgi/current/index.html .

[20] The preceding material is a simple precis of the more lengthy presentation given in the Foreign Customer Guide at p. 3, 4.

[21] See Foreign Customer Guide at p. 3, 4. The ITARS are available at http://www.pmddtc.state.gov/regulations_laws/itar.html .

[22] See Foreign Customer Guide at p. 3, 4.

[23] See n. 2, supra, for citations.

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