A Review of the 1976 Arms Export Control Act
Up until the AECA, the executive branch viewed the negotiations, acceptance and/or refusal of arms sales as falling within the President’s domain, and Congress generally agreed. Supporters of the President having exclusive power over arms deals pointed to the Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States…” (The Constitution, Article II, Section II). This meant, supporters argued, that the President also had the power to command and allow any arms sales that he desired to, as long as they did not threaten the safety of the country.
Congress, however, encouraged by gains it had made in foreign policy through the WPR and other pieces of legislation, stressed that it too should have a role in arms deals. Supporters of increased congressional power over arms sales also used the Constitution to justify their stance: “The Congress shall have the Power To… …establish Commerce with foreign Nations…” (The Constitution, Article 1, Section 8). As arms deals were clearly commercial transactions, authority in establishing them lay with the Congress, these supporters said. The primary concern Congress had, however, was being able to influence foreign policy through arms deals; the commercial aspect was simply a justification for giving Congress that opportunity.
The AECA of 1976, then, was an effort made by Congress to legislate itself more power in deciding foreign policy. The AECA was created in response to an increase in arms sales to foreign countries. Over the 20th Century, America’s military industry grew in leaps and bounds, as did requests from foreign countries to purchase American arms. American weapons were viewed as higher-quality than many others, and also often came with training from Americans themselves. As arms sales increased, they began to play a vital role in foreign policy; selling arms to a country often implied a partnership with that country, and, in effect, worked as an unofficial treaty. It was noted by the American government that selling arms to a country could considerably strengthen relations with that country, and selling arms only once certain conditions were met by a country could have the effect of changing a country’s policy. By placing itself in the arms dealing equation, Congress was giving itself another chance to exercise control over foreign policy.
The concept behind the AECA was first developed by an amendment in 1974 by Senator Gaylord Nelson, D-Wisconsin. The amendment , which was later changed and passed as the AECA in 1976, had two functions: to require the President to report arm sales to Congress, and to give Congress an oversight function on the approval of arms sales. “The President may not give his consent… …to a transfer of a defense article, or related training or other defense service… … unless, 30 days prior to giving such consent, the President submits to the Speaker of the House of Representatives and Committee on Foreign Relations of the Senate a written certification with respect to such proposed transfer…” (Arms Export Control Act). “The letter of offer shall not be issued if the Congress, within thirty calendar days after receiving such certification, adopts a concurrent resolution stating that it objects to the proposed sale…”(Arms Export Control Act). This allows Congress to deny the sale of arms to any country it wishes, simply by passing a concurrent resolution; concurrent resolutions only require a majority of both the House and the Senate, and are not signed by the President, thus removing the possibility of a veto. (The Supreme Court later ruled that such “legislative vetoes” were unconstitutional, and the language was changed to “joint resolution”, requiring the President’s signature; this effectively meant that, if Congress wished to truly block an arms sale, they would need to override a presidential veto, and thus require two-thirds of both the House and Senate.)
While certainly providing Congress with another tool to attain greater congressional control of foreign policy, the AECA is not entirely effective in achieving what it was intended to: enough loopholes are left in the legislation that the President can often find ways to bypass Congress entirely. Directly following the section of the AECA that states Congress can refuse an arms sale is a proviso which says the deal is blocked “…unless the President states in his certification that an emergency exists which requires such sale in the national security interests of the United States.” (Arms Export Control Act). No guidelines are given for what the “national security interests of the United States” are; the interpretation is left to the President. This gives him a chance to define security interests as they come up, and allows him to disregard congressional opposition to an arms sale with little trouble.
Another reason the AECA is not entirely effective is because Congress only acts on an arms sale when it disapproves of one, and does not have to do anything when it approves. This keeps Congress from being as active a player as possible in the negotiation process. The partial ineffectiveness of the AECA, resulting from loopholes and limiting the congressional role to disapproval, is seen in the fact that the AECA is rarely used to block an arms deal. There have been very few times when the Hill and the President have gone head to head on a prospective arms sale. When there has been an occasion to invoke the AECA, however, it has proven that it is not entirely ineffective: one such case occurred in 1985, when Congress passed a resolution ordering an arms sale with Jordan to be delayed by six months; Reagan, knowing he faced strong opposition, backed down, and the arms deal never happened.
Congress could likely attain greater control over arms deals and, through the deals, foreign policy, by requiring itself to approve all transactions, rather than only playing a role when a member disapproves of a particular sale. While Congress would certainly gain more power by adopting an approval position, a key question must be considered: would greater congressional powers in arms deals be beneficial or detrimental for the United States in terms of defense and foreign policy?
After careful examination of how greater congressional control of arms deals would affect relations with other countries, and through those relations, the relative safety of the United States, it is clear that Congress should continue influencing arms deals under the AECA as it currently exists. The reasons for not changing Congress’ role are many: the job of affirming every transaction is simply too great for Congress to undertake; the possibility of adversely affecting the United States’ relations with buyer countries, or losing business from such countries, is much greater with more direct congressional control; and the fact that, with arms deals supplying allies of the US and in effect acting as informal treaties, they should be under the President’s control.
The nuts and bolts of an arms deal and the implications it will have on defense are very complicated issues. They require a great amount of expertise to truly understand, and thus must be studied thoroughly before they are approved. The executive branch of the government is able to conduct these studies through the State Department and the bureaucracy that supports it. Congress, on the other hand, with literally thousands of other issues to deal with, does not have the resources or capabilities to investigate the full implications of every single arms deal that the United States conducts. Asking members of Congress to vote in the affirmative before allowing an arms deal to go through, then, would be folly; it is simply inconceivable to expect any member to be able to devote the time and resources needed to fully grasp the intricacies of every arms deal before he or she voted on it.
Critics of this thought may point out that the number of issues a congressperson has to deal with is staggering already, and there is little chance that the member can fully understand any vote they make; that is just their job. The nature of arms deals, however, makes them unique in that they often have very broad consequences, more so than most legislation considered by Congress. Providing arms to countries can mean the rise or fall of entire governments, and the very nature of weapons means that any decision to sell them often has life-or-death consequences. Because of their unique nature, then, as much consideration as possible must be given to arms sales. Critics may also argue that there are certain members of Congress who do specialize in arms sales and their implications, and who would be able to advise the rest of Congress how to vote. These specialized members, however, are quite rare; there are simply not enough to provide an accurate portrayal of the issue for Congress as a whole.
Another reason Congress should continue operating under the AECA is because arms deals are often used by the United States to secure the US’ best interests in purchasing countries; a Congress required to affirm each sale would undoubtedly refuse a good number, for any number of reasons. Countries shopping for weapons, faced with having to win congressional approval, may seek out other suppliers, such as Saudi Arabia’s decision in 1985 to purchase jets from Great Britain. This decision was made by the Saudis when they were faced only with the provisions of the AECA; even greater congressional involvement would certainly drive other countries away. When countries buy weapons from sources other than the United States, the US loses a vital bargaining tool; by promising to supply (or withhold) arms, the US can exercise a good amount of leverage over states. An example of just how effective a tool arms sales can be is evidenced in the clash between Greece and Turkey over Cyprus in the 1960s. The US cut the sale of weapons to Turkey several times over the conflict; while some argue that such a signal may have been too obvious, it had the intended effect: showing US displeasure with Turkish policy.
Critics of this argument against an increased congressional role would point to the fact that the current AECA only gives Congress 30 days to respond to arms deals; prior to reaching Congress, both countries have invested time, money, and effort into negotiating the details of the sale. Cancelling a transfer of weapons late in the deal not only wastes the resources put into negotiations, but also signals, perhaps unwantedly, a disapproval of a purchasing country overall. Critics would say that that is the reason some countries are driven to other buyers: the possibility of an 11th-hour refusal. If Congress was given an affirming role, it could potentially enter the process much earlier, and therefore refusals would also occur much earlier. While the logic is clear, this argument ignores a vital fact: refusals would still occur, and, with Congress affirming all sales, refusals would occur at a higher rate. Congress is much less likely to allow arms deals if it must vote for selling weapons; any vote in the affirmative automatically gives a member a pro-war stance, something that many Congress members do not wish to have. It is much easier to ask Congress not to bring the issue up; if Congress does not have to vote, then individual members do not have to take responsibility for affirming the transfer of weapons. If Congress did have to affirm every transaction, prospective buyers would simply seek out other sellers rather than try to win congressional approval, removing the political leverage that accompanies arms deals, and ultimately weakening the US’ foreign policies.
The final reason why Congress should be content with the AECA is because arms deals really should be left to the executive branch. The President, as commander of American troops, must make decisions on when and where to deploy armed forces. In making these decisions, the President must weigh a variety of factors; one is the relative military strength of countries in the region. Allowing the President control of arms deals gives him the power to affect this factor. By supplying arms to or withholding arms from a particular country, the President can directly impact that country’s military strength; assuring a country is well-off militarily will bind that country to the US, and may preclude the need for US troops. This was evidenced in Israel in the 1960s and 1970s: Israel proved to be a strong ally against communism in the Middle East; the President increased the sale of weapons to Israel, and thus was able to remove the need to send in troops.
Critics here might argue that the responsibility of Congress to “establish Commerce with foreign nations” (The Constitution, Article 1, Section 8) means that the defense aspect of arms deals should not be taken into account, and that the commercial aspect should be the only one considered. Arms deals are unique, however, in that they play a vital role in American foreign policy, more so than other types of commerce. While food and monetary aid are important, weapons have the ability to protect or to kill, to enforce or to enslave. Arms deals’ uniqueness must be taken into account when considering who has jurisdiction over them: the ability to preclude the use of troops, and perhaps save American lives, outweighs the commercial aspect that Congress would like to use.
Ultimately, the AECA does give Congress a fair role in the arms deal process. Greater congressional oversight of arms deals would weaken the position of the President, hurt US foreign policy, and result in a break in the separation of powers. While the legislation does have limitations, such as only giving Congress 30 days to deal with an arms sale, and only allowing Congress a chance to refuse particular sales rather than affirm all of them, it achieves it purpose: the AECA allows Congress to weigh in on arms deals, and at the same time protects the President’s right to use arms deals as a means of administering foreign policy. The AECA has proven effective when used, such as in 1985, when Congress blocked the sale of aircraft and missiles to Jordan, and in 1987, when Congress was able to convince President Reagan that the Maverick missile portion of an arms deal to Saudi Arabia would run into opposition on the Hill; Reagan removed the missiles from the deal, and the transaction went through as modified by Congress. The AECA has also proven that the executive may still complete an arms deal when he believes it is necessary, such as in 1981, when Reagan faced congressional disapproval of an $8.5 billion deal with Saudi Arabia; Reagan was able to get former president Carter to endorse the deal, and effectively lobbied for it in Congress, and ultimately the deal went through. The AECA, as it exists, is an effective management tool for both Congress and the President, and should not be changed.
Works Cited:
United States. Cong. Arms Export Control Act. 90th Cong., 2nd sess. Washington: GPO, 1976.
United States. The United States Constitution. .
