[For the last couple of blogs we’ve been exploring the international arms trade or, more specifically, the U.S. role in it. For those of you who don’t like to hear about such things, blame the Pope. He’s the one who asked why the world supplies weapons to various hot spots and running sores around the globe. People are doing it for the money, he said, and we ought to just stop.[1]

Well, some of us here know a little bit about the arms trade, and we thought the Pope’s explanation was a bit over-simplified. Sure there’s profit to be made in arms sales, but there are jobs as well; domestic jobs that pay well and support our declining middle class. Our defense contractors – crafty fellows for the most part – understand this and cleverly spread their operations around the country, thereby maximizing their political influence on lots of things, including the defense budget. Does this mean they always get what they want? No. Sometimes they compete with each other, for programs, contracts, etc., and they can’t all win every time, no matter how much our Congress might wish to make it so. But there’s no doubt that – each year – politics, and jobs, are big factors in putting together a defense budget.

But given this[2] – and I think it’s true – there also are military reasons for selling weapons abroad. As we pointed out last time, U.S. policy 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.”[3]

Until that wonderful day arrives, however, we need to develop and maintain a competent military, allies in the world, and the ability to use force to protect our interests. It’s expensive to do that kind of thing – especially to develop new weapons – so like-minded countries ought to share the burden. [4] They should cooperate in developing new weapons, and standardize equipment to enhance its “operational capability.” As we pointed out earlier, the NATO countries did this when they adopted the .556 x 45 mm rifle cartridge – something any of them could manufacture; and they do the same thing  when they buy the same weapons system – say a fighter jet – from a common source. Do I need to point out that, in many cases, the “common source” is the U.S.? That’s good for our economy, but there’s also a military reason for it.

So this all sounds very rational, but is it successful? There are multiple interest groups in the world, not just us and NATO. Suppose more than one of them gets interested in the same country, region or issue. Take Syria, for example. We’re supporting a revolution, or at least a part of one, against the incumbent government. The Iranians, the Russians, etc. support the incumbent.[5] Parts of the Sunni population in the area apparently sympathize with ISIS, our avowed mortal enemy[6]. So who should we arm? Turkey is a NATO country, so nominally is on our side. But perhaps the Turks are more interested in defeating the Kurds, an insurgent part of Turkey’s population[7]; but Kurds also are scattered across parts of Syria, Iraq and Iran, and often are militarily successful against ISIS. When we try to develop our own insurgents to fight over there, we’re not very successful. At last report the forces we trained at great expense to engage ISIS [and presumably the Syrian government] amount to 4 or 5 individuals[8]. Our great allies in the region, the Iraqis, tend to abandon their weapons and take off for the hills.[9] That’s why ISIS controls territory in Iraq and the Iranians have to support the Iraqi as well as the Syrian governments.

Is this confusing? It is. Syria and Iraq are a mass of competing interests, sectarian differences and old feuds that are virtually incomprehensible to outsiders, so, of course, the Republican candidates for President want us to show leadership and intervene, ultimately with ground forces. That didn’t work very well for 10+ years in Iraq or Afghanistan but, hey; the third time’s the charm!

What does this have to do with the arms trade? It’s tangentially involved. People can’t fight wars without weapons, but any country that wants to arm this side or that in the Middle East needs to do it very carefully. Depending upon circumstances today’s allies may disappear tomorrow, or change sides, or abandon their weapons, or sell them or whatever. If we give [or sell] advanced weapons to one group the next year circumstances may change, and we might find them used against us or someone we currently like.

So this is all very interesting, but how does it affect the way we sell arms abroad? We’ve poked at that question in the two earlier blogs, but haven’t really answered it. This time Larry’s going to tell us about the State Department, and how it regulates arms sales. Hopefully we’ll know more and understand the problems better when he’s done.]

“Hopefully” is the operative word. I’m going to talk about who’s supposed to be in charge of arms sales and what actually happens.

[The State Department is in charge?]

More or less. Arms sales are regulated by the Arms Export Control Act [the AECA],[10] but that Act specifically provides that nothing in it infringes on the Secretary’s power to conduct foreign affairs.[11] The Secretary is “responsible for the continuous supervision and general direction of sales, leases, financing, cooperative projects, and exports [of arms].” Among other things, the Secretary determines whether there will be a sale of weapons, or a delivery under a contract, “to the end that the foreign policy of the United States would be best served thereby.” [12]

[I’m not sure I understand that last part. Does it mean that the Secretary can cancel an existing sale if he [or she] determines that the foreign policy of the U.S. would not be “best served” by it?]

I think so, but don’t hold me to that. Ask DoS if you have a serious question. Anyway, the Secretary’s powers are formalized by Presidential Executive Order 13637.[13] The Secretary’s power to “continuously supervise” weapons sales includes the power to determine whether there will be any sale at all and, if so, its size and scope.

[That’s interesting. But, as we discussed before, DoD also runs quite an active security assistance program which can involve sales of armaments to foreign entities. Its implementing directive doesn’t seem to mention the Department of State very much if at all.[14]Am I to understand that DoS at some point has to sign off on DoD’s activities as well?]

Yes, it would seem so. Section 2 of the Executive Order says the two Departments must “consult with each other and with the heads of other executive departments and agencies on matters pertaining to their responsibilities.”[15] In addition, it repeats the statutory language of the AECA, i.e., that the Secretary of State is

… responsible for the continuous supervision and general direction of sales and exports under the Act, including the negotiation, conclusion, and termination of international agreements, and determining whether there shall be a sale to a country and the amount thereof, and whether there shall be delivery or other performance under such sale or export, to the end that sales and exports are integrated with other United States activities and the foreign policy of the United States is best served thereby.[16]

So they are supposed to talk.

[All right, let’s move on to our last point. As we noted last time, DoS actually licenses direct sales of U.S. weapons to foreign buyers. How does that work?]

Well, it’s authorized by the AECA.[17]Basically anyone who wants to manufacture arms in, import them to or export them from the U.S. has to get a license.[18] In this context, “arms” are officially “defense articles or defense services.”[19] How does a person know whether his or her product qualifies as such? Why, that’s easy; just look it up in the United States Munitions List.[20] You can find that in the Code of Federal Regulations.[21] The Munitions List is part of the State Department’s International Traffic in Arms Regulations (the ITAR).[22]

Since we don’t have a question about any specific export, etc., I don’t see much point to getting further into how things are done over at State. If you’re looking to criticize a specific sale, say, one to a Middle Eastern entity that turns against us a year later, all you need to know for openers is that the State Department should have approved it, if it was a direct sale, or at least should have known about it, if it went through DoD’s FMS program. I don’t know if the buck always stops[23] at the State Department, but it always should rest there for a bit.

[Well, let’s get back to the Pope’s question. You know I like to do that. Why don’t we just cut off the international arms trade to eliminate runaway conflicts? Should we get rid of the whole thing?]

As a practical matter I don’t think it’s possible. Too many U.S. jobs depend on the defense industry. Also, often there are good, solid defense-related reasons for standardizing equipment and sharing technology with allies. As long as they remain allies, of course. But there is one kind of situation where sending arms abroad really doesn’t make much sense. I’m talking about when revolutions break out and states begin to come apart. Often there are lots of factions, and many of them don’t want to give up. So they’re willing to go on for years, fighting each other, running the internal meat grinder and expelling hordes of refugees. It’s not good for them, or for the neighbors.

So in that case, in my opinion, outsiders shouldn’t back one side or the other, except as a temporary expedient. Instead they should gang up on the warring factions, and encourage them to make peace. And by “encourage” I mean, use extreme encouragement, if necessary. And I certainly wouldn’t give high-tech weapons to any faction. When a situation is chaotic, the good stuff can disappear; it can migrate to and be used in the most unlikely and inconvenient places, including possibly our own country.

Anyway, that’s my opinion.

[And it’s an interesting one, at that. I like the notion of “extreme encouragement.” What would that involve, I wonder?]

It depends upon the situation, I guess. I don’t think we should discuss it in a blog.

[1] Go to the Vatican for [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-radioSee 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 from the pdf. page counter.

[2] See, e.g., The New York Times, Editorial Board, Stupid Pentagon Budget Tricks (May 23, 2015), available at http://www.nytimes.com/2015/05/24/opinion/sunday/stupid-pentagon-budget-tricks.html?ref=topics

[3] See 22 U.S.C. §2751, as amended.

[4] Id. “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.”

[5] See The Huffington Post, Vicenzino, Syria’s Assad Is Expendable But Regime’s Survival Is Not (11/06/2015), available at http://www.huffingtonpost.com/marco-vicenzino/syria-assad-is-expendable_b_8479346.html

[6] See The New York Times, Opinion, Bolton, To Defeat ISIS, Create a Sunni State (November 24, 2015) available at http://www.nytimes.com/2015/11/25/opinion/john-bolton-to-defeat-isis-create-a-sunni-state.html?_r=0

[7] See the article in WikipediaKurds in Turkey, available at https://en.wikipedia.org/wiki/Kurds_in_Turkey

[8] See World, Langdon, Midday Roundup: U.S. anti-ISIS training program an ‘abject failure (September 17, 2015) available at http://www.worldmag.com/2015/09/midday_roundup_u_s_anti_isis_training_program_an_abject_failure See also the Reuters video at http://www.reuters.com/video/2015/09/16/only-handful-of-us-trained-syrian-rebels?videoId=365620393#2Cm7Sqt0hJUdZV2G.97

[9] See Fox News, Politics, ISIS moving seized US tanks, Humvees to Syria (June 17, 2014) available at http://www.foxnews.com/politics/2014/06/17/isis-moving-seized-us-tanks-humvees-to-syria.html

[10] 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

[11] See 22 U.S.C. §2752(a). “Nothing contained in this chapter shall be construed to infringe upon the powers or functions of the Secretary of State.”

[12] See 22 U.S.C. §2752(b).

[13] See Executive Ord. 13637, Administration of Reformed Export Controls (March 13, 2013), 78 Fed. Reg.16129.

[14] See DoD Instruction 5105.65,  Defense Security Cooperation Agency (DSCA) (October 26, 2012), available at http://dtic.mil/whs/directives/corres/pdf/510565p.pdf

[15] See Executive Ord. 13637, Sec. 2

[16] Compare 22 U.S.C. §2752(b) with Executive Ord. 13637, Sec. 2(b).

[17] See 22 U.S.C. §2778.

[18] See 22 U.S.C. §2778(b).

[19] See 22 U.S.C. §2778(a).

[20] See 22 C.F.R. §121.1(a), General, The United States Munitions List: “The following articles, services and related technical data are designated as defense articles and defense services pursuant to §§38 and 47(7) of the Arms Export Control Act (22 U.S.C. 2778 and 2794(7)).”

[21] More specifically, it’s at Title 22, Part 121 of the Code of Federal Regulations. You can access Part 121 through the State Department, at http://www.pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_121.pdf

[22] If you want the most up-to-date version of the ITAR, check first with the State Department’s Directorate of Defense Trade Controls, at http://www.pmddtc.state.gov/regulations_laws/itar.html

[23] “The buck stops here?” Where did that expression come from? Probably from poker, the card game. Wikipedia seems to have a good explanation. Go to Wikipedia, at https://en.wikipedia.org/wiki/Buck_passing