LEARN ABOUT U.S. ARMS SALES

Transfer of Defense Articles: U.S. Sale and Export of U.S.-Made Arms to Foreign Entities

An extensive set of laws, regulations, policies, and procedures govern the sale and export of U.S.-origin weapons to foreign countries (“defense articles and defense services,” officially).

Congress has authorized such sales under two laws:  The Foreign Assistance Act (FAA) of 1961, 22 U.S.C. §2151, et seq.  The Arms Export Control Act (AECA) of 1976, 22 U.S.C. §2751, et seq.

The FAA and AECA govern all transfers of U.S.-origin defense articles and services, whether they are commercial sales, government-to-government sales, or provided with U.S.-appropriated funds through security assistance/security cooperation programs.

These transfers can occur under Title 22 (Foreign Relations) or Title 10 (Armed Services) authorities.

Arms sold or transferred under these authorities are regulated by the International Traffic in Arms Regulations (ITAR) and the U.S. Munitions List (USML), which are located in Title 22, Parts 120-130 of the Code of Federal Regulations (C.F.R.).

The two main methods for the sale and export of U.S.-made weapons under these authorities are the Foreign Military Sales (FMS) program and Direct Commercial Sales (DCS) licenses.

Some other arms sales occur from current Department of Defense (DOD) stocks through Excess Defense Articles (EDA) provisions.

For FMS, the U.S. government procures defense articles as an intermediary for international partners’ acquisition of defense articles and defense services, which allows partners to benefit from U.S. DOD technical and operational expertise, procurement infrastructure, and purchasing practices.

For DCS, registered U.S. firms may sell defense articles directly to international partners.

The U.S. government is not party to the arms agreement, but defense firms must still apply for an export license from the State Department.

In some cases where U.S. firms have entered into international partnerships to produce some major weapons systems, comprehensive export regulations under 22 C.F.R. 126.14 are intended to allow exports and technical data for those systems without having to go through the licensing process.

The State Department maintains responsibility for notifying Congress of proposed FMS cases and DCS export licenses, as required by the AECA.

Congress has amended the FAA and AECA to restrict arms sales to foreign entities for a variety of reasons.

These include restrictions on transfers to countries that violate human rights and states that support terrorism, as well as limitations on specific countries at certain times, such as any Middle East countries whose import of U.S. arms would adversely affect Israel’s qualitative military edge.

Arms transfers to Taiwan are governed under the Taiwan Relations Act of 1979, P.L. 96-8, 22 U.S.C. §3301 et seq.

Under the AECA, Congress can also overturn individual notified arms sales via a joint resolution.

During the 116th Congress, such joint resolutions were introduced in opposition to planned arms sales to Saudi Arabia, but did not pass.

All U.S. defense articles and defense services sold, leased, or exported under the AECA are subject to end-use monitoring (to provide reasonable assurance that the recipient is complying with the requirements imposed by the U.S. government with respect to use, transfers, and security of the articles and services) to be conducted by the President (Section 40A of the AECA) to ensure compliance with U.S. arms export rules and policies.

FMS transfers are monitored under DOD’s Golden Sentry program and DCS transfers are monitored under the State Department’s Blue Lantern program.

Letter to President Biden Regarding Section 620I of the Foreign Assistance Act and Humanitarian Access in Gaza

For Immediate Release: March 12, 2024

Media Contact: Daryl G. Kimball, executive director, (202) 463-8270 x107

(Washington, D.C.)—Today the Arms Control Association joined a prestigious group of organizations specializing in humanitarian assistance and international security on a letter to President Joe Biden "to express our deep concern regarding continued U.S. security assistance to Israel despite Israeli restrictions on humanitarian aid, an apparent violation of U.S. law.”

The letter, endorsed by two dozen organizations, notes that Section 620I of the Foreign Assistance Act “… prohibits the United States from providing security assistance or arms sales to any country when the President is made aware that the government ‘prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.’”

In the letter, the organizations call on President Biden to "urgently comply with U.S. law, end U.S. support for catastrophic human suffering in Gaza, and use your leverage to protect civilians and ensure the impartial provision of humanitarian assistance."

“As Israel threatens to attack Rafah, where more than one million civilians have sought refuge, it is imperative that President Biden fully exercises America's leverage to protect civilians before even more are killed or die from starvation and disease,” said Daryl G. Kimball, executive director of the Arms Control Association.

"The facts on the ground suggest that President Biden should follow the logic of U.S. law and his own administration’s conventional arms transfer policies by withholding U.S. military assistance for Israeli offensive military operations because, more likely than not, they may be used to commit, facilitate, or aggravate the risk of a serious violation of international human rights or humanitarian law, and because of Israeli actions that are impeding the delivery of humanitarian assistance to Palestinians in Gaza,” he said.

The text of the letter is below.

For further analysis, see "Can Biden’s New Arms Transfer Policy Be More Than an Empty Promise?” by John Ramming Chappell in Arms Control Today, March 2024.

Letter to President Biden on Security Assistance to Israel, Restrictions On Humanitarian Aid to Gaza, and U.S. Law

March 12, 2024

Dear President Biden,

We write to express our deep concern regarding continued U.S. security assistance to Israel despite Israeli restrictions on humanitarian aid, an apparent violation of U.S. law. We demand that you urgently comply with U.S. law and end U.S. support for catastrophic human suffering in Gaza.

On March 2, the United States began its first airdrops of humanitarian aid into Gaza – a risky, expensive, and ineffective method for assisting civilians that is widely considered an option of last resort.

On March 7, your administration announced that it would build a floating pier along the Gaza coast to bring aid to the population.

Both efforts are the latest implicit recognition of Israel's severe restrictions on humanitarian access amid extraordinary human suffering.

Your administration has now publicly recognized what humanitarian organizations have reported for months: that the government of Israel is obstructing the delivery of humanitarian aid to starving Palestinians.

More than 30,000 Palestinians – at least two-thirds of them women and children – have been killed in Gaza and over 70,000 wounded, with thousands more estimated to be buried under the rubble.

Over 90 percent of people in Gaza are acutely food insecure, with a growing number of children dying of starvation and dehydration.

Over 75 percent of Gaza’s population is already displaced, and the level of damage to shelter and infrastructure means people increasingly have nowhere safe to go nor reliable provisions if and when they move.

As civilians face bombardment, disease, and starvation, lifesaving health care is increasingly inaccessible.

The United States is a leading donor of the humanitarian response in Gaza. Secretary Blinken has called on Israel to “maximize every possible means” to get aid to Gazans, noting that “the situation, as it stands, is simply unacceptable.”

And you have rightly said you will accept “no more excuses” for continued obstacles to aid.

But since October 7, the government of Israel has failed to facilitate the entry of sufficient humanitarian aid, including through additional border crossings into Gaza and northern Gaza in particular; blocked the entry of many humanitarian aid trucks; denied humanitarian access requests; enforced arbitrary customs restrictions on humanitarian goods; and attacked humanitarian workers and their facilities as well as civilians seeking aid.

Longtime U.S. implementing partners around the world have come under attack in Gaza, and lifesaving U.S.-funded humanitarian aid has been blocked from entering Gaza.

Just last week, hours after your State of the Union address, an Israeli airstrike on a housing complex hosting displaced people killed a humanitarian aid worker employed by a US-based NGO.

These restrictions are not isolated instances but the policy of the government of Israel: as Prime Minister Netanyahu stated clearly on October 18, “We will not allow humanitarian assistance in the form of food and medicines from our territory to the Gaza Strip.”

While Israel has subsequently allowed some aid into Gaza, it remains far from sufficient – a fact that Netanyahu confirmed when he stated in January that Israel was only allowing a "minimum" amount of relief into Gaza.

During your own State of the Union address, you implicitly acknowledged that Israel was using humanitarian aid as a bargaining chip. Human Rights Watch and Oxfam have determined that the Israeli government is committing a war crime by using starvation of civilians as a method of warfare in the Gaza Strip.

Meanwhile, the United States continues to provide Israel with unconditional arms transfers and other security assistance.

This not only facilitates Israel’s harmful conduct, but also appears to violate Section 620I of the Foreign Assistance Act (22 U.S.C. § 2378–1), which prohibits the United States from providing security assistance or arms sales to any country when the President is made aware that the government “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”

U.S. weapons, security assistance, and blanket political support have contributed to an unparalleled humanitarian crisis and possible war crimes in Gaza.

We demand that you urgently comply with U.S. law, end U.S. support for catastrophic human suffering in Gaza, and use your leverage to protect civilians and ensure the impartial provision of humanitarian assistance.

Signed,

Airwars

American Friends Service Committee

Amnesty International USA

Anera

Arms Control Association

Center for Civilians in Conflict (CIVIC)

Center for International Policy

Charity & Security Network

Demand Progress Education Fund

Foreign Policy for America

Friends Committee on National Legislation

Human Rights Watch

Humanity & Inclusion

MADRE

Middle East Democracy Center (MEDC)

MPower Change

Norwegian Refugee Council USA

Oxfam America

PAX

Peace Action

Quincy Institute for Responsible Statecraft

Refugees International

U.S. Campaign for Palestinian Rights Action (USCPR Action)

Win Without War

Zomia Center