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The Export of Weapons: Past, Present and Future

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As long overdue negotiations on an Arms Trade Treaty (ATT) begin in early July under UN auspices, central to that discussion, by virtue of its international supremacy, will be the US export of arms that has facilitated the extensive sale of weapons around the planet. With only 19 out of 195 sovereign nations of the world with no military budget, the ATT conference will attempt to establish international standards for the $55 billion a year industry for the import, export and transfer of all conventional (small arms) weapons.

Even a widespread global recession and callous austerity budgets have done little to dampen an insatiable demand for weapons by industrialized nations, undemocratic nations and still developing or unstable nations with an estimated $1.7 trillion devoted to annual military expenditures in 2011, a 50 per cent increase in global military budgets since 2001 -- at the expense of providing a safe, secure world for all its citizens.

More than a year after the revolt in Syria against President Bashar al Assad's regime began, international leaders continue to 'deplore' the violence as they are 'disappointed' that both sides refuse to honor UN mediator Kofi Annan's proposed ceasefire while the fighting spirals into an orgy of death, devastation and carnage. As the conflict spills over into Lebanon, the world's political leaders wring their hands in hopeless despair. What is to be done they ask -- as if they were powerless to stop the slaughter.

The Stockholm International Peace Research Institute (SIPRI) reported a 580 per cent increase in military hardware to Syria between 2007 and 2011 with Russia importing 78 per cent of its weapons. According to SIPRI, the top five exporters of weapons worldwide between 2007-2011 responsible for 75% of all conventional weapon transfers were the US and Russia, at 40% and 24% respectively; followed by Germany, France and the UK in single digits -- all permanent members of the UN Security Council (with the exception of Germany).

As many Americans go about their daily routine with a mere glance at global headlines, there is little real recognition that the US, with 4.5 per cent of the world population, dominates the market share of armaments with 37% of the $1.7 trillion figure or that the US has more than doubled its military budget since 2001 and currently spends (almost) more than every other nation in the world combined on its military. If it is difficult to relate to the utter devastation of war in a foreign culture on the other side of the planet, the recollection of one isolated World Trade Center attack on a civilian population on a daily basis should serve as a wake-up call.

The bi-partisan Congressional Research Service reports that the US "made $170 billion in arms sales between 2003 and 2010" with Russia not even a close second at $81 billion as the US dominated the international arms market with "$22 billion out of a worldwide total of $40 billion" in 2010. As the US continues to increase its exports, Lexington Institute defense consultant Loren Thompson suggested that "Obama is much more favorably disposed to arms exports than any of the previous Democratic administrations" and Jeff Abramson, deputy director of the Arms Control Association, added "There's an Obama arms bazaar going on."

A flashback to 1934 reveals how US export policy has morphed from some level of accountability to virtually non-existent today as previous and the current Executive branch assume as much power as Congress allows. With adoption of a Joint Resolution, Congress authorized an arms embargo to Paraguay and Bolivia during the Chaco War with President Roosevelt's assurance that the embargo would reestablish peace between those two countries. Curtis Wright Corporation was later convicted of selling weapons to Bolivia in violation of the embargo with the Supreme Court upholding the conviction in 1936 citing the "exclusive power of the President as the sole organ of the Federal Government in the field of international relations." (US vs. Curtiss Wright) Through the Vietnam War, it was common for a bipartisan Congress to allow the Executive Branch to wield unfettered authority over international affairs and foreign policy issues.

But after an undeclared war in Korea, the deceits of Presidents Johnson and Nixon in escalating the war in Vietnam, the Watergate break-in, CIA and FBI surveillance abuses and even before the fall of Saigon in 1975 brought a bitter end to that debacle, a festering distrust of an over-reaching Executive emerged as Congress, in an unprecedented resurgence, set out to claim its Constitutional authority. The 1970's were a time when an activist Congress, especially with the 1974 election of a reform-minded class of "Watergate babies" to the 94th Session, expected the checks and balances to function and the media was still a defender of the public's right to know. Prominent among legislative initiatives were the War Powers Act of 1973 requiring Presidential consultation with the Congress prior to military action and the Arms Export Control Act (AECA) of 1976 required the Executive to inform Congress on proposed weapon sales with an option to deny that sale.

Since adoption, the WPA has been disregarded by every President as an unconstitutional infringement on executive power as Commander in Chief and an impediment on their ability to conduct foreign policy -- and while the AECA may have altered some weapon sales, it has never stopped an arms sale from occurring. Neither bill has functioned as fully intended and both have been relegated to subordinate status due, in part, to questions regarding the constitutionality of a legislative veto, a key controversial provision in both legislation. If invoked in the WPA, the legislative veto could require the president to withdraw troops and in the AECA, it could disallow the sale of weapons by a one-vote majority.

Also known as a concurrent resolution, the legislative veto allowed a single vote margin to decide rather than require the historic two-thirds necessary to override a Presidential veto. The Legislative veto dates back to the 1930's and was included in the Reorganization Act of 1939 as a credible legislative tool guaranteeing a more democratic parliamentary process. Although it lacked the status of the force of law, few presidents have been willing to risk a Congressional roll call vote in rejection of their policies. Once the legislative veto was incorporated into both the WPA and the AECA, an empowered Congress had the opportunity to rein in Executive overreach or express disapproval of a Presidential decision by a single vote majority. For all of the brilliance of the US Constitution, Congress is limited by a two-thirds vote to restrain a Commander in Chief who has no Constitutional 'enumerated power' to initiate military action.

However, in 1953, the Supreme Court (Immigration and Naturalization Service v. Chadha, 462 US 919) dealt a fatal blow to the original intent of both the WPA and the AECA when it declared the legislative veto to be 'unconstitutional' as a violation of the principle of separation of powers alleging that Congress cannot 'require' the executive branch to acquiesce its authority to the legislative branch. Justice Byron White (with Rehnquist) filed dissents to the majority opinion arguing that a legislative veto is essential for a modern government as a "necessary check on the unavoidably expanding power of the ...Executive" suggesting that the legislative and executive branches are co-equal participants in lawmaking.

While Congress provided Presidential authority for weapon sales with the Foreign Military Sales Act of 1961, amended in 1968, et al Nixon's sales to Iran and Saudi Arabia in 1973 without notification of Congress stirred war-weary Members to act in the fear that such sales would generate another military misadventure.

In response, Sen. Gaylord Nelson (D-Wisc) proposed an amendment to the Foreign Assistance Act of 1974 (FAA), another predecessor of the AECA, which provided Congress with greater oversight, required a Presidential report on a proposed sale to Congress and included an annual $9 billion cap on all weapon exports. Initially for the purpose of providing "legitimate self defense," Nelson's amendment included a Congressional right to deny a weapon sale and reverse a Presidential decision via a legislative veto.

As the world became a more complex place, the sale of weapons grew to be an integral part of US foreign policy objectives providing an opportunity to establish new diplomatic relationships. Weapon sales became an important political tool as it frequently implied support for American foreign policy or as a quid pro quo, for instance, as the tiny Kingdom of Bahrain has received $299 million worth of American weapons since 2009 in exchange for providing a strategically important base for the US Navy's Fifth Fleet.

In May, 1976, President Gerald Ford vetoed the FAA including Nelson's amendment citing the usual constitutional arguments with a specific objection to the legislative veto. (Both Presidents Carter and Reagan supported the legislative veto until taking office.) The Congress failed on a two-thirds vote to override the President's veto and the FAA was defeated until several months later when 'compromise' legislation eliminated the $9 billion cap and the legislative veto except as it applied to Congressional ability to reject a proposed Presidential export. What Nelson and the reformers of the 94th Congress had not anticipated was exactly how prescient President Eisenhower's warning regarding the military industrial complex would be.

The majority of US exports are direct government-to-government sales through the Pentagon's Foreign Military Sales (FMS) Program which includes the Foreign Military Financing program providing grants, loans and training for the purchase of US weapons. Prior to 2003, Israel received the majority of FMF assistance with Iraq becoming the largest recipient from 2003 through 2007 replaced by Afghanistan after 2007. Nations preferring a less public relationship with the US military may go through the Direct Commercial Sales (DCS) option which facilitates sales directly between a US manufacturer to a foreign country with the Department of Defense acting as a purchasing agent. DCS recipients may apply for FMF assistance although only ten countries are currently authorized to receive such government largesse: Israel, Egypt, Jordan, Morocco, Tunisia, Turkey, Pakistan, Portugal, Yemen and Greece. The FMS is considered preferable with the expectation of a better deal from the Pentagon, better contract compliance and provides a more politically advantageous opportunity to bond with the US via mutual military efforts. The AECA applies to both FMS and DCS contracts with the latter requiring an export license.

As a backdrop to the upcoming ATT Conference, the Senate Foreign Relations Committee revealed recently that the Obama Administration had eliminated a key provision of the AECA with a lack of notification to Congress of proposed weapon sales. An administration official confirmed that Congress would lose its oversight authority over proposed U.S. weapons deals pointing out that Congress was delaying contracts with Egypt, Saudi Arabia, Turkey and the United Arab Emirates. "In this economy, we can't allow a situation where a major client like Saudi Arabia walks away from us and spends billions of dollars with another supplier," the official said. Last December, the Obama Administration announced a $30 billion sale of 84 new Boeing F 15 fighter jets and the refurbishing of 70 existing jets to Saudi Arabia, a reliable US ally, although also the home of Osama bin Laden and 15 of the 19 September 11th attackers. That sale may be more about preparation for a future attack on Iran rather than Saudi Arabia's history as a repressive monarchy.

In addition, the Administration is drafting a proposed rule to reduce administrative requirements for the export of certain weapons to include rifles and drones as part of the President's Export Control Reform Initiative. Among other changes, the new rules would shift certain high powered weapons from the State Department's munitions list to the Commerce Department with less restrictions.

Initially suggested by a group of Nobel Peace Prize laureates in 2003, the UN General Assembly adopted Resolution 61/89 to establish an ATT working group with 153 nations in support, 19 nations abstained (including China, Russia and Israel) and one nation voted in opposition -- that one nation was the United States. In 2009, the Obama Administration reversed the US position with the caveat that all decisions at the conference be unanimous thereby providing one country with the ability to veto the Treaty.

As the ATT moves toward multilateral consideration in July, significant opposition to the Treaty has surfaced in the Senate with its 'advise and consent' authority on treaties. Sen. Jerry Moran (R-Ks) sent the President a letter of opposition signed by 44 Republican Senators and Sen. Jon Tester (D- Mt) sent a similar letter along with 12 Democrats stating that "the Arms Trade Treaty must not in any way regulate the domestic manufacture, possession or sales of firearms or ammunition."

Clearly, absent Sen. Nelson and the reformers of the 94th Congress, the ATT can expect a hostile reception even before it has been negotiated. As our current leaders, implacable and disconnected, continue on the path of militarism and war, they fail to recognize that peace is not simply a fervent ideal; it is the only path to survival.