197Nothing leaves the Munitions List quietly---Congress is told first.
AECA 38 — United States Congress. June 30, 1976. Section 38 of the Arms Export Control Act, the authority every U.S. arms export licence issues under. Office of the Law Revision Counsel, “22 U.S. Code §2778---Control of arms exports and imports,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2778&num=0&edition=prelim Clopus
(1) The President shall periodically review the items on the United States Munitions List to determine what items, if any, no longer warrant export controls under this section. The results of such reviews shall be reported to the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and to the Committee on Foreign Relations and the Committee on Banking, Housing, and Urban Affairs of the Senate. The President may not remove any item from the Munitions List until 30 days after the date on which the President has provided notice of the proposed removal to the Committee on International Relations of the House of Representatives and to the Committee on Foreign Relations of the Senate in accordance with the procedures applicable to reprogramming notifications under section 2394–1(a) of this title . Such notice shall describe the nature of any controls to be imposed on that item under any other provision of law.
198Congress already wrote spares and servicing into the term the plan uses.
AECA 47 — United States Congress. June 30, 1976. Section 47 of the Arms Export Control Act, the definitions binding every program in the chapter. Office of the Law Revision Counsel, “22 U.S. Code §2794---General provisions,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2794&num=0&edition=prelim Clopus
(3) "defense article", except as provided in paragraph (7) of this section, means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States-
(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,
(B) any property, installation, commodity, material, equipment, supply, or goods used for the purposes of making military sales,
(C) any machinery, facility, tool, material, supply, or other item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation, or use of any article listed in this paragraph, and
(D) any component or part of any article listed in this paragraph,
but does not include merchant vessels or (as defined by the Atomic Energy Act of 1954 [ 42 U.S.C. 2011 et seq. ]) source material (except uranium depleted in the isotope 235 which is incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material, production facilities, utilization facilities, or atomic weapons or articles involving Restricted Data;
(4) "defense service", except as provided in paragraph (7) of this section, means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States, any service, test, inspection, repair, training, publication, technical or other assistance, or defense information (as defined in section 2403(e) of this title ), used for the purposes of making military sales, but does not include design and construction services under section 2769 of this title ;
(5) "training" includes formal or informal instruction of foreign students in the United States or overseas by officers or employees of the United States, contract technicians, or contractors (including instruction at civilian institutions), or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice to foreign military units and forces;
199The campaign burns munitions---that’s why they keep coming back for more.
Martin 25 — Guy Martin. August 14. Journalist at defenceWeb, the African defence industry publication, reporting off the DSCA congressional notification. defenceWeb, “Nigeria requests $346 million worth of guided and unguided weapons from US,” https://defenceweb.co.za/african-news/nigeria-requests-346-million-worth-of-guided-and-unguided-weapons-from-us/ Clopus
Nigeria is looking to buy $346 million worth of munitions from the United States, including guided bombs and rockets, with the State Department approving the possible sale.
The US Defense Security Cooperation Agency (DSCA) on 13 August said it had notified Congress of the potential sale on Wednesday.
Nigeria has requested to buy 1 002 Mk 82 general purpose 500 lb (226 kg) bombs; 1 002 MXU-650 Air Foil Groups (AFGs) for 500 lb Paveway II GBU-12 bombs; 515 MXU-1006 AFGs for 250 lb (113 kg) Paveway II GBU-58 bombs; 1 517 MAU-169 or MAU-209 computer control group (CCG) for Paveway II GBU-12/GBU-58 bombs; 1 002 FMU-152 joint programmable fuzes; and 5 000 Advanced Precision Kill Weapon System II (APKWS II) all-up-rounds (AURs) (consisting of one each WGU-59/B guidance section; high-explosive warhead; and MK66-4 rocket motor).
Also included in the potential sale are FMU-139 joint programmable fuzes; bomb components, impulse cartridges, and high-explosive and practice rockets; and support.
“The proposed sale will improve Nigeria’s capability to meet current and future threats through operations against terrorist organisations and to counter illicit trafficking in Nigeria and the Gulf of Guinea. Nigeria will have no difficulty absorbing these munitions into its armed forces,” the DSCA said.
The principal contractors will be RTX Missiles and Defense, Lockheed Martin Corporation, and BAE Systems.
While not specifying which platforms the munitions are being acquired for, it is likely that they will be for the Nigerian Air Force’s A-29 Super Tucano light combat/trainer aircraft acquired via US company Sierra Nevada Corporation. They have been heavily used to combat Boko Haram terrorists, bandits, and other security threats in Nigeria.
In August 2024, the Nigerian Super Tucano fleet logged 10 000 flying hours. At the time the Air Force said “since its induction in August 2021, the A-29 Super Tucano fleet has been involved in several decisive missions in the various operational theatres across the country. So far, over 8 500 hours flown on the fleet were dedicated to both day and night operational sorties against terrorists, bandits and other violent non-state actors threatening national peace. No doubt, the aircraft’s night and precision munitions delivery capability has undoubtedly enhanced NAF’s versatility, flexibility and lethality in all air operations.”
A Nigerian Air Force Super Tucano.
When Nigeria bought its 12 Super Tucanos, it also acquired GBU-12 and GBU-58 Paveway II guided bombs, Laser Guided Rockets including Advanced Precision Kill Weapon System (APKWS) rounds; Mk 81 bombs; and 70 mm Hydra 70 unguided rockets.
The latest request for munitions could also indicate use on the Air Force’s dozen new AH-1Z Viper attack helicopters. Bell Textron was in March 2024 awarded a $455 million production contract, with work to be completed in July 2028. The Nigerian Air Force also has 24 M-346 combat/trainer aircraft on order from Leonardo.
Last month, Chief of Air Staff, Air Marshal Hasan Abubakar, said the Nigerian Air Force would acquire 49 state-of-the-art aircraft by the end of 2026. This figure includes three Airbus C295 transport aircraft; ten Leonardo AW109 Trekker helicopters; 12 AH-1Z attack helicopters; and 24 M-346s.
In the last two years the Air Force has received six Turkish Aerospace Industries T-129 ATAK helicopters; two AW109 Trekker helicopters; three Beechcraft King Air aircraft; and four Diamond 62 reconnaissance aircraft.
Strengthening the Nigerian Air Force comes amid continued pressure from Islamist terror groups and bandits. Abubakar this month said Nigeria’s military has killed 592 armed militia members in the northeastern sate of Borno in the past eight months, after stepping up air strikes in a region plagued by violence.
Abubakar said the Air Force also destroyed more than 200 technical vehicles and 166 logistics hubs in a sweeping offensive against insurgents in the northeast. “This year, our air war is faster, sharper and more surgical,” Abubakar said. “We are taking out high-value targets, crippling logistics networks and dismantling cells that threaten peace in the northeast.”
He said Nigerian Air Force aircraft flew 798 combat sorties and logged over 1 500 operational flight hours under Operation Hadin Kai, Nigeria’s military’s counterinsurgency operation in the northeast.
According to the Africa Center for Strategic Studies (ACSS), Nigeria experienced an 18% increase in fatalities tied to militant Islamist groups over the past year. Borno State in Nigeria’s North East Zone remains the epicentre of this violence and Nigeria accounts for 74% of all fatalities in the Lake Chad Basin region – a total of 3 982 deaths in the last year for the area.
200Every case arrives with a quantity and a named contractor, in advance.
AECA 36 — United States Congress. June 30, 1976. Section 36 of the Arms Export Control Act, the congressional notification and reporting statute for arms sales. Office of the Law Revision Counsel, “22 U.S. Code §2776---Reports and certifications to Congress on military exports,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2776&num=0&edition=prelim Clopus
(1) Subject to paragraph (6), in the case of any letter of offer to sell any defense articles or services under this chapter for $50,000,000 or more, any design and construction services for $200,000,000 or more, or any major defense equipment for $14,000,000 or more, before such letter of offer is issued, the President shall submit to the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and to the chairman of the Committee on Foreign Relations of the Senate a numbered certification with respect to such offer to sell containing the information specified in clauses (i) through (iv) of subsection (a), or (in the case of a sale of design and construction services) the information specified in clauses (A) through (D) of paragraph (9) 1 of subsection (a), and a description, containing the information specified in paragraph (8) 1 of subsection (a), of any contribution, gift, commission, or fee paid or offered or agreed to be paid in order to solicit, promote, or otherwise to secure such letter of offer. Such numbered certifications shall also contain an item, classified if necessary, identifying the sensitivity of technology contained in the defense articles, defense services, or design and construction services, proposed to be sold, and a detailed justification of the reasons necessitating the sale of such articles or services in view of the sensitivity of such technology. In a case in which such articles or services listed on the Missile Technology Control Regime Annex are intended to support the design, development, or production of a Category I space launch vehicle system (as defined in section 2797c of this title ), such report shall include a description of the proposed export and rationale for approving such export, including the consistency of such export with United States missile nonproliferation policy. Each such numbered certification shall contain an item indicating whether any offset agreement is proposed to be entered into in connection with such letter of offer to sell (if known on the date of transmittal of such certification). In addition, the President shall, upon the request of such committee or the Committee on Foreign Affairs of the House of Representatives, transmit promptly to both such committees a statement setting forth, to the extent specified in such request-
(A) a detailed description of the defense articles, defense services, or design and construction services to be offered, including a brief description of the capabilities of any defense article to be offered;
(B) an estimate of the number of officers and employees of the United States Government and of United States civilian contract personnel expected to be needed in such country to carry out the proposed sale;
(C) the name of each contractor expected to provide the defense article, defense service, or design and construction service proposed to be sold and a description of any offset agreement with respect to such sale;
201The baseline is itemized---warheads, motors, guidance sections, one by one.
Martin 25 — Guy Martin. August 14. Journalist at defenceWeb, the African defence industry publication, reporting off the DSCA congressional notification. defenceWeb, “Nigeria requests $346 million worth of guided and unguided weapons from US,” https://defenceweb.co.za/african-news/nigeria-requests-346-million-worth-of-guided-and-unguided-weapons-from-us/ Clopus
Nigeria is looking to buy $346 million worth of munitions from the United States, including guided bombs and rockets, with the State Department approving the possible sale.
The US Defense Security Cooperation Agency (DSCA) on 13 August said it had notified Congress of the potential sale on Wednesday.
Nigeria has requested to buy 1 002 Mk 82 general purpose 500 lb (226 kg) bombs; 1 002 MXU-650 Air Foil Groups (AFGs) for 500 lb Paveway II GBU-12 bombs; 515 MXU-1006 AFGs for 250 lb (113 kg) Paveway II GBU-58 bombs; 1 517 MAU-169 or MAU-209 computer control group (CCG) for Paveway II GBU-12/GBU-58 bombs; 1 002 FMU-152 joint programmable fuzes; and 5 000 Advanced Precision Kill Weapon System II (APKWS II) all-up-rounds (AURs) (consisting of one each WGU-59/B guidance section; high-explosive warhead; and MK66-4 rocket motor).
Also included in the potential sale are FMU-139 joint programmable fuzes; bomb components, impulse cartridges, and high-explosive and practice rockets; and support.
“The proposed sale will improve Nigeria’s capability to meet current and future threats through operations against terrorist organisations and to counter illicit trafficking in Nigeria and the Gulf of Guinea. Nigeria will have no difficulty absorbing these munitions into its armed forces,” the DSCA said.
The principal contractors will be RTX Missiles and Defense, Lockheed Martin Corporation, and BAE Systems.
While not specifying which platforms the munitions are being acquired for, it is likely that they will be for the Nigerian Air Force’s A-29 Super Tucano light combat/trainer aircraft acquired via US company Sierra Nevada Corporation. They have been heavily used to combat Boko Haram terrorists, bandits, and other security threats in Nigeria.
In August 2024, the Nigerian Super Tucano fleet logged 10 000 flying hours. At the time the Air Force said “since its induction in August 2021, the A-29 Super Tucano fleet has been involved in several decisive missions in the various operational theatres across the country. So far, over 8 500 hours flown on the fleet were dedicated to both day and night operational sorties against terrorists, bandits and other violent non-state actors threatening national peace. No doubt, the aircraft’s night and precision munitions delivery capability has undoubtedly enhanced NAF’s versatility, flexibility and lethality in all air operations.”
A Nigerian Air Force Super Tucano.
When Nigeria bought its 12 Super Tucanos, it also acquired GBU-12 and GBU-58 Paveway II guided bombs, Laser Guided Rockets including Advanced Precision Kill Weapon System (APKWS) rounds; Mk 81 bombs; and 70 mm Hydra 70 unguided rockets.
The latest request for munitions could also indicate use on the Air Force’s dozen new AH-1Z Viper attack helicopters. Bell Textron was in March 2024 awarded a $455 million production contract, with work to be completed in July 2028. The Nigerian Air Force also has 24 M-346 combat/trainer aircraft on order from Leonardo.
Last month, Chief of Air Staff, Air Marshal Hasan Abubakar, said the Nigerian Air Force would acquire 49 state-of-the-art aircraft by the end of 2026. This figure includes three Airbus C295 transport aircraft; ten Leonardo AW109 Trekker helicopters; 12 AH-1Z attack helicopters; and 24 M-346s.
In the last two years the Air Force has received six Turkish Aerospace Industries T-129 ATAK helicopters; two AW109 Trekker helicopters; three Beechcraft King Air aircraft; and four Diamond 62 reconnaissance aircraft.
Strengthening the Nigerian Air Force comes amid continued pressure from Islamist terror groups and bandits. Abubakar this month said Nigeria’s military has killed 592 armed militia members in the northeastern sate of Borno in the past eight months, after stepping up air strikes in a region plagued by violence.
Abubakar said the Air Force also destroyed more than 200 technical vehicles and 166 logistics hubs in a sweeping offensive against insurgents in the northeast. “This year, our air war is faster, sharper and more surgical,” Abubakar said. “We are taking out high-value targets, crippling logistics networks and dismantling cells that threaten peace in the northeast.”
He said Nigerian Air Force aircraft flew 798 combat sorties and logged over 1 500 operational flight hours under Operation Hadin Kai, Nigeria’s military’s counterinsurgency operation in the northeast.
According to the Africa Center for Strategic Studies (ACSS), Nigeria experienced an 18% increase in fatalities tied to militant Islamist groups over the past year. Borno State in Nigeria’s North East Zone remains the epicentre of this violence and Nigeria accounts for 74% of all fatalities in the Lake Chad Basin region – a total of 3 982 deaths in the last year for the area.
202The migration criterion excludes ordnance---and it doesn’t deregulate anything.
BIS 20 — Bureau of Industry and Security, U.S. Department of Commerce. January 23. The bureau that wrote the rule moving firearms off the Munitions List, explaining its own criteria. Federal Register, “Control of Firearms, Guns, Ammunition and Related Articles the President Determines No Longer Warrant Control Under the United States Munitions List (USML),” https://www.federalregister.gov/documents/2020/01/23/2020-00573/control-of-firearms-guns-ammunition-and-related-articles-the-president-determines-no-longer-warrant Clopus
( 83 FR 24166 ) (referred to henceforth as the “Commerce May 24 rule”) in conjunction with a Department of State proposed rule to revise Categories I, II, and III of the USML (referred to henceforth as the “State May 24 rule”). The Department of Commerce is issuing this final rule that describes how articles the President determines no longer warrant control under USML Category I—Firearms, Close Assault Weapons and Combat Shotguns; Category II—Guns and Armament; and Category III—Ammunition/Ordnance will be controlled on the CCL of the Export Administration Regulations (EAR) and is being published in conjunction with a final rule on Categories I, II, and III from the Department of State, Directorate of Defense Trade Controls (DDTC), completing the initial review of the USML that began in 2011 and making conforming changes to the EAR to control these items on the Commerce Control List (CCL).
The changes described in this final rule and in the State Department's companion final rule on Categories I, II, and III of the USML are based on a thorough interagency review of those categories, after which the Department of State concluded that the items added to the CCL in this final rule do not provide a critical military or intelligence advantage to the United States and, in the case of firearms, do not have an inherently military function. The Departments of Defense, State, and Commerce have, therefore, determined that the EAR is the appropriate source of authority to control these firearms, ammunition, and other articles previously controlled under Categories I-III of the USML. There is a significant worldwide market for items in connection with civil and recreational activities such as hunting, marksmanship, competitive shooting, and other non-military activities.
This final rule does not deregulate the transferred items. BIS will require authorization to export or reexport to any country a firearm or other weapon that is being moved from the USML to the CCL by this final rule, including releases of related technology and software to foreign persons in the United States. Rather than decontrolling firearms and other items, in publishing this final rule, BIS, working with the Departments of Defense and State, is continuing to ensure that appropriate regulatory oversight will be exercised over exports, reexports, and transfers (in- country) of these items while reducing the procedural burdens and costs of export compliance on the U.S. firearms industry and allowing the U.S. Government to make better use of its export control resources.
203You can’t relabel a serial number---the case lists every component by part.
Martin 25 — Guy Martin. August 14. Journalist at defenceWeb, the African defence industry publication, reporting off the DSCA congressional notification. defenceWeb, “Nigeria requests $346 million worth of guided and unguided weapons from US,” https://defenceweb.co.za/african-news/nigeria-requests-346-million-worth-of-guided-and-unguided-weapons-from-us/ Clopus
Nigeria is looking to buy $346 million worth of munitions from the United States, including guided bombs and rockets, with the State Department approving the possible sale.
The US Defense Security Cooperation Agency (DSCA) on 13 August said it had notified Congress of the potential sale on Wednesday.
Nigeria has requested to buy 1 002 Mk 82 general purpose 500 lb (226 kg) bombs; 1 002 MXU-650 Air Foil Groups (AFGs) for 500 lb Paveway II GBU-12 bombs; 515 MXU-1006 AFGs for 250 lb (113 kg) Paveway II GBU-58 bombs; 1 517 MAU-169 or MAU-209 computer control group (CCG) for Paveway II GBU-12/GBU-58 bombs; 1 002 FMU-152 joint programmable fuzes; and 5 000 Advanced Precision Kill Weapon System II (APKWS II) all-up-rounds (AURs) (consisting of one each WGU-59/B guidance section; high-explosive warhead; and MK66-4 rocket motor).
Also included in the potential sale are FMU-139 joint programmable fuzes; bomb components, impulse cartridges, and high-explosive and practice rockets; and support.
“The proposed sale will improve Nigeria’s capability to meet current and future threats through operations against terrorist organisations and to counter illicit trafficking in Nigeria and the Gulf of Guinea. Nigeria will have no difficulty absorbing these munitions into its armed forces,” the DSCA said.
The principal contractors will be RTX Missiles and Defense, Lockheed Martin Corporation, and BAE Systems.
While not specifying which platforms the munitions are being acquired for, it is likely that they will be for the Nigerian Air Force’s A-29 Super Tucano light combat/trainer aircraft acquired via US company Sierra Nevada Corporation. They have been heavily used to combat Boko Haram terrorists, bandits, and other security threats in Nigeria.
In August 2024, the Nigerian Super Tucano fleet logged 10 000 flying hours. At the time the Air Force said “since its induction in August 2021, the A-29 Super Tucano fleet has been involved in several decisive missions in the various operational theatres across the country. So far, over 8 500 hours flown on the fleet were dedicated to both day and night operational sorties against terrorists, bandits and other violent non-state actors threatening national peace. No doubt, the aircraft’s night and precision munitions delivery capability has undoubtedly enhanced NAF’s versatility, flexibility and lethality in all air operations.”
A Nigerian Air Force Super Tucano.
When Nigeria bought its 12 Super Tucanos, it also acquired GBU-12 and GBU-58 Paveway II guided bombs, Laser Guided Rockets including Advanced Precision Kill Weapon System (APKWS) rounds; Mk 81 bombs; and 70 mm Hydra 70 unguided rockets.
The latest request for munitions could also indicate use on the Air Force’s dozen new AH-1Z Viper attack helicopters. Bell Textron was in March 2024 awarded a $455 million production contract, with work to be completed in July 2028. The Nigerian Air Force also has 24 M-346 combat/trainer aircraft on order from Leonardo.
Last month, Chief of Air Staff, Air Marshal Hasan Abubakar, said the Nigerian Air Force would acquire 49 state-of-the-art aircraft by the end of 2026. This figure includes three Airbus C295 transport aircraft; ten Leonardo AW109 Trekker helicopters; 12 AH-1Z attack helicopters; and 24 M-346s.
In the last two years the Air Force has received six Turkish Aerospace Industries T-129 ATAK helicopters; two AW109 Trekker helicopters; three Beechcraft King Air aircraft; and four Diamond 62 reconnaissance aircraft.
Strengthening the Nigerian Air Force comes amid continued pressure from Islamist terror groups and bandits. Abubakar this month said Nigeria’s military has killed 592 armed militia members in the northeastern sate of Borno in the past eight months, after stepping up air strikes in a region plagued by violence.
Abubakar said the Air Force also destroyed more than 200 technical vehicles and 166 logistics hubs in a sweeping offensive against insurgents in the northeast. “This year, our air war is faster, sharper and more surgical,” Abubakar said. “We are taking out high-value targets, crippling logistics networks and dismantling cells that threaten peace in the northeast.”
He said Nigerian Air Force aircraft flew 798 combat sorties and logged over 1 500 operational flight hours under Operation Hadin Kai, Nigeria’s military’s counterinsurgency operation in the northeast.
According to the Africa Center for Strategic Studies (ACSS), Nigeria experienced an 18% increase in fatalities tied to militant Islamist groups over the past year. Borno State in Nigeria’s North East Zone remains the epicentre of this violence and Nigeria accounts for 74% of all fatalities in the Lake Chad Basin region – a total of 3 982 deaths in the last year for the area.
204Congress gets a detailed description and the capabilities---by law, before the offer.
AECA 36 — United States Congress. June 30, 1976. Section 36 of the Arms Export Control Act, the congressional notification and reporting statute for arms sales. Office of the Law Revision Counsel, “22 U.S. Code §2776---Reports and certifications to Congress on military exports,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2776&num=0&edition=prelim Clopus
(1) Subject to paragraph (6), in the case of any letter of offer to sell any defense articles or services under this chapter for $50,000,000 or more, any design and construction services for $200,000,000 or more, or any major defense equipment for $14,000,000 or more, before such letter of offer is issued, the President shall submit to the Speaker of the House of Representatives, the Committee on Foreign Affairs of the House of Representatives, and to the chairman of the Committee on Foreign Relations of the Senate a numbered certification with respect to such offer to sell containing the information specified in clauses (i) through (iv) of subsection (a), or (in the case of a sale of design and construction services) the information specified in clauses (A) through (D) of paragraph (9) 1 of subsection (a), and a description, containing the information specified in paragraph (8) 1 of subsection (a), of any contribution, gift, commission, or fee paid or offered or agreed to be paid in order to solicit, promote, or otherwise to secure such letter of offer. Such numbered certifications shall also contain an item, classified if necessary, identifying the sensitivity of technology contained in the defense articles, defense services, or design and construction services, proposed to be sold, and a detailed justification of the reasons necessitating the sale of such articles or services in view of the sensitivity of such technology. In a case in which such articles or services listed on the Missile Technology Control Regime Annex are intended to support the design, development, or production of a Category I space launch vehicle system (as defined in section 2797c of this title ), such report shall include a description of the proposed export and rationale for approving such export, including the consistency of such export with United States missile nonproliferation policy. Each such numbered certification shall contain an item indicating whether any offset agreement is proposed to be entered into in connection with such letter of offer to sell (if known on the date of transmittal of such certification). In addition, the President shall, upon the request of such committee or the Committee on Foreign Affairs of the House of Representatives, transmit promptly to both such committees a statement setting forth, to the extent specified in such request-
(A) a detailed description of the defense articles, defense services, or design and construction services to be offered, including a brief description of the capabilities of any defense article to be offered;
(B) an estimate of the number of officers and employees of the United States Government and of United States civilian contract personnel expected to be needed in such country to carry out the proposed sale;
(C) the name of each contractor expected to provide the defense article, defense service, or design and construction service proposed to be sold and a description of any offset agreement with respect to such sale;
205“Arms transfers” already reaches sustainment---parts, servicing and training.
AECA 47 — United States Congress. June 30, 1976. Section 47 of the Arms Export Control Act, the definitions binding every program in the chapter. Office of the Law Revision Counsel, “22 U.S. Code §2794---General provisions,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2794&num=0&edition=prelim Clopus
(3) "defense article", except as provided in paragraph (7) of this section, means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States-
(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other implement of war,
(B) any property, installation, commodity, material, equipment, supply, or goods used for the purposes of making military sales,
(C) any machinery, facility, tool, material, supply, or other item necessary for the manufacture, production, processing, repair, servicing, storage, construction, transportation, operation, or use of any article listed in this paragraph, and
(D) any component or part of any article listed in this paragraph,
but does not include merchant vessels or (as defined by the Atomic Energy Act of 1954 [ 42 U.S.C. 2011 et seq. ]) source material (except uranium depleted in the isotope 235 which is incorporated in defense articles solely to take advantage of high density or pyrophoric characteristics unrelated to radioactivity), byproduct material, special nuclear material, production facilities, utilization facilities, or atomic weapons or articles involving Restricted Data;
(4) "defense service", except as provided in paragraph (7) of this section, means, with respect to a sale or transfer by the United States under the authority of this chapter or any other foreign assistance or sales program of the United States, any service, test, inspection, repair, training, publication, technical or other assistance, or defense information (as defined in section 2403(e) of this title ), used for the purposes of making military sales, but does not include design and construction services under section 2769 of this title ;
(5) "training" includes formal or informal instruction of foreign students in the United States or overseas by officers or employees of the United States, contract technicians, or contractors (including instruction at civilian institutions), or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice to foreign military units and forces;
206“Won’t” isn’t “can’t”---predicted non-compliance indicts the actor, not the policy.
Estlund 11 — David Estlund. Professor of philosophy at Brown University, writing the article that frames this dispute for the field. Philosophy & Public Affairs, “Human Nature and the Limits (If Any) of Political Philosophy,” vol. 39, no. 3, p. 207-237 Clopus quoted from the author’s final draft, hosted by Yale Law School
1 is such that this will continue. I will not be engaging in this kind of dispute about what is or is not in human nature. Rather, I will argue against the constraint itself. It is important to acknowledge that the term “human nature” can be used to refer to other things about humans, such as their biological needs or their tendency to age. I am using the term in the narrower way I have indicated. However, disputes about whether political philosophy properly respects human nature are not normally about issues like our need for oxygen or our tendency to age. What political philosopher puts these aside? Traditionally, the disputes are very often about allegedly characteristic human structures of motivation, and especially about partiality and selfishness. I am engaging this traditional and central line of dispute about the relevance of human nature to political philosophy. To keep things simple, I will grant for the sake of argument that it is in the nature of humans to be more selfish and partial than socialist or egalitarian (or whatever other) theory would need them to be. I deny, however, that this refutes any such normative political theories. Far from taking a stand on the content of human nature, it would be open to me to deny that there is such a thing as human nature at all. But I will grant it for the sake of argument. Some have suggested that philosophical 2 criticism is often in one or the other of two categories: “Oh yeah?” or “So what?” When a political theory is alleged to violate the bounds of human nature, many have responded with “Oh yeah?” My response, by contrast, is “So what?” The appeal to human nature suggests something more than merely making claims about how people will act or are likely to act. The suggestion seems to be that there are, in addition, forces at 3 work. But let’s consider the weaker claim first, that people (simply) won’t act as the theory requires. In addition to the example of socialist or egalitarian theory, it might be held against a theory requiring significant civic virtue that, for example, people will never do that. It’s hard to see how this is an objection. It would not surprise any of us if people will never be very good or if societies will never be very just. But that very thought requires reference to a standard not met. To show
(supposing that one can show it) that a standard will not be met might count against people’s behavior rather than against the standard. Of course, it may be that the thought embodied in such a complaint is that if people won’t do it, or if we can know in advance that they won’t, then maybe this is because they can’t. Then, if “ought” implies “can,” that would refute the theory. If people can’t do it, then they are not required, and the theory that says they are required is thereby refuted. “Ought” implies “can” is a formula that stands for a number of separable ideas. I want to grant, for the sake of argument, that some version of it could refute a theory of justice. So let’s say that if a theory says that a society would be unjust unless it met certain conditions, then that theory of justice 4 would be false if the society lacked the ability to meet those conditions. This is debatable, but even if we grant it, there is no basis for supposing that what people won’t do is something they cannot do. People and societies fail to do things they should and could do (even do easily) all the time. If it could be shown that a society lacks the ability to meet a theory’s requirements, then I will grant for the sake of argument that the theory would be defeated. But knowing that society will never do certain things is a long way from having any basis for thinking that it lacks the ability. Here is an important point to keep in mind, if only in the background. For present purposes, when we ask ourselves whether a person can do something, we should not be assuming that causal determinism prevents it. If every event, including every action, is necessitated by causal antecedents, showing that nothing is ever required other than what we actually do, then the issue about justice and human nature isn’t of any further interest. This would not be the view that requirements of justice must stay within the bounds of human nature, but the view that they must stay within the bounds of what people and societies actually do. I will be assuming that either determinism is not true or (what seems more likely) that people can often do other than what they actually do even if determinism is true. For example, it might be that a person can do something only so long as they would tend to succeed if they were to try and not give up. That counterfactual situation might obtain even if it is not possible that they try. For example, it is causally guaranteed that Joe, being so uncaring, will never
try to help his neighbor. Still, if he were to try, he would tend to succeed, so it is not as if he can’t help her. This sort of view is “compatibilist,” in that it claims, compatibly with causal determinism, that people can often do other than what they actually do. (And if they can, then they might be required to.) A second important background point concerns oppressive threats and incentives. What people can bring themselves to do is very often relative to an environment of threats and incentives. In many cases, what look like motivational incapacities—whether they are morally unfortunate or not—can be overcome by structuring those threats and incentives. In a subset of cases that require inducement, only oppressive threats and incentives would be effective. (I do not assume that coercion, which law normally involves, is always oppressive and wrong.) Even where the initial motivations are themselves shortfalls from what is necessary for justice (such as weakness of will or willing vice), obviously not just any inducement, however oppressive, would be morally permitted. Many inducements would often only substitute one injustice for another. Nor, however, does the fact that the oppressive inducement should be forgone somehow erase the injustice of the behavior that will result. Just because we shouldn’t amputate the hands of thieves to eradicate theft (supposing it would) doesn’t mean that the theft itself is permissible or that a society rife with it is just. Similarly, just because we shouldn’t incarcerate and “reeducate” people who perpetuate bigotry (supposing that would work) doesn’t mean that resulting high levels of bigotry are compatible with a just society. So, returning to the main thread, suppose that “ought” implies “can.” Plainly, “ought” does not imply “will” (unless people can only do what they will do, a possibility we are putting aside). So, putting the same points the other way around, “can’t do” is requirement-blocking, but “won’t do” is not.
207The President can cancel the case before delivery and pull the licence without notice.
CRS 24 — Congressional Research Service. May 14. Nonpartisan research arm of the Library of Congress, writing for Members handling this exact question. Congressional Research Service, “U.S. Review of an Arms Sale to Israel: Issues for Congress,” IN12359, https://www.congress.gov/crs_external_products/IN/HTML/IN12359.html Clopus
In May 2024, U.S. officials confirmed reports that the Biden Administration is "reviewing some near-term security assistance" for Israel and has paused a shipment of 2,000-pound bombs and 500-pound bombs based on concern about their potential use in the city of Rafah, Gaza. The Administration's action comes after inconclusive Israel-Hamas cease-fire negotiations and the subsequent launch of Israeli air and ground operations near Rafah, where an estimated 1.4 million Gazans have gathered, including 1.1 million people displaced by fighting elsewhere in the Gaza Strip. For weeks, U.S. officials reportedly had warned Israel not to proceed with major military operations in Rafah without adequately planning for civilian safety and welfare. President Joe Biden said on May 8 that he had "made it clear to Bibi [Prime Minister Benjamin Netanyahu] and the war cabinet, they're not going to get our support, if in fact they go on these population centers." He also said, "We're not walking away from Israel's security; we're walking away from Israel's ability to wage war in those areas."
Two days later, the Administration released its report to Congress under Section 2 of the National Security Memorandum-20 (NSM-20). The report concluded that "given Israel's significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL [International Humanitarian Law] obligations or with established best practices for mitigating civilian harm."
Congress appears divided over the President's weapons pause, with some lawmakers agreeing with the President's decision and others decrying it for what they call its effect on the "timely delivery of security assistance to Israel." Opponents of the pause in the House have reportedly planned a floor vote on the Israel Security Assistance Support Act (ISASA – see below).
Issues for Congress
Presidential Authority to Pause U.S. Weapons Sales
The President has a number of mechanisms to alter or end the sales of U.S.-origin defense articles. The Arms Export Control Act (AECA) and the Foreign Assistance Act of 1961 establish the statutory foundations governing Foreign Military Sales (FMS) and Direct Commercial Sales (DCS) to foreign governments. The AECA prohibits the sale or delivery of U.S.-origin defense articles if the President finds that a recipient country has used such articles for unauthorized purposes. The AECA also stipulates that such countries would, absent a presidential waiver, be ineligible for future U.S. sales of defense articles until the President determines the violation has ceased and recipients assure violations will not recur. The law does not provide for such a waiver if Congress has adopted a joint resolution, which would be subject to presidential veto.
The executive branch also has wide-ranging authority to cancel an FMS transaction prior to the articles' delivery. The standard Letter of Offer and Acceptance (LOA) terms and conditions permit the U.S. government, under "unusual and compelling circumstances, when the national interest of the U.S. requires," to "cancel or suspend all or part" of such a letter "at any time prior to the delivery of defense articles."
The U.S. government similarly has extensive authority to cancel or modify export licenses for U.S.-origin defense articles. Section 126.7 of the International Traffic in Arms Regulations (ITAR) states that such licenses "may be revoked, suspended, or amended without prior notice whenever" the State Department "believes that" the recipient has violated "the terms of any U.S. Government export authorization." The Department may also take these actions if it deems them to be "in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable."
In 2021, the Biden Administration paused certain weapons sales and transfers to Saudi Arabia, reportedly including transfers of air-to-ground munitions, based on concerns about the effect of Saudi military operations in Yemen on civilians and U.S. national security interests.
U.S. Foreign Aid to Israel and Congressional Notification
President Biden's weapons pause has sparked some congressional concern over whether the Administration is obligating and notifying foreign assistance funding, such as Foreign Military Financing for Israel. Congress appropriated $3.5 billion in FMF for assistance to Israel and related expenses in the Israel Security Supplemental Appropriations Act. Such funds are available for obligation until September 30, 2025, and are required to have a spend plan within 15 days of enactment, outlined in Section 310 of Division A. Regular notification procedures apply, but the legislation includes a provision waiving the notification requirement for FMF funds if "the Secretary of State determines that to do so is in the national security interest of the United States." Congress monitors agency delay in making funds available for obligation or expenditure through the Impoundment Control Act of 1974 (ICA).
Possible Legislation
ISASA would prohibit FY2024 or earlier funds from being used to withhold defense items/services to Israel. It also would withhold funds from the Secretary of Defense, Secretary of State, and the National Security Council until U.S. officials can certify that items withheld from Israel had been delivered. The bill also would require a monthly report to Congress providing a list of the defense articles and services provided to Israel since October 7, 2023. On May 13, National Security Advisor Jake Sullivan said, "We are continuing to send military assistance, and we will ensure that Israel receives the full amount provided in the supplemental. We have paused a shipment of 2,000-pound bombs because we do not believe they should be dropped in densely populated cities. We are talking to the Israeli government about this."
208Export authority is the President’s own---he designates the list and issues the licence.
AECA 38 — United States Congress. June 30, 1976. Section 38 of the Arms Export Control Act, the authority every U.S. arms export licence issues under. Office of the Law Revision Counsel, “22 U.S. Code §2778---Control of arms exports and imports,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2778&num=0&edition=prelim Clopus
(1) In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List.
(2) Decisions on issuing export licenses under this section shall take into account whether the export of an article would contribute to an arms race, aid in the development of weapons of mass destruction, support international terrorism, increase the possibility of outbreak or escalation of conflict, or prejudice the development of bilateral or multilateral arms control or nonproliferation agreements or other arrangements.
(3) In exercising the authorities conferred by this section, the President may require that any defense article or defense service be sold under this chapter as a condition of its eligibility for export, and may require that persons engaged in the negotiation for the export of defense articles and services keep the President fully and currently informed of the progress and future prospects of such negotiations.
(b) Registration and licensing requirements for manufacturers, exporters, or importers of designated defense articles and defense services
(1)(A)(i) As prescribed in regulations issued under this section, every person (other than an officer or employee of the United States Government acting in an official capacity) who engages in the business of manufacturing, exporting, or importing any defense articles or defense services designated by the President under subsection (a)(1) shall register with the United States Government agency charged with the administration of this section, and shall pay a registration fee which shall be prescribed by such regulations. Such regulations shall prohibit the return to the United States for sale in the United States (other than for the Armed Forces of the United States and its allies or for any State or local law enforcement agency) of any military firearms or ammunition of United States manufacture furnished to foreign governments by the United States under this chapter or any other foreign assistance or sales program of the United States, whether or not enhanced in value or improved in condition in a foreign country. This prohibition shall not extend to similar firearms that have been so substantially transformed as to become, in effect, articles of foreign manufacture.
209The transfer is countable---bombs, kits and rockets for an American airframe.
Martin 25 — Guy Martin. August 14. Journalist at defenceWeb, the African defence industry publication, reporting off the DSCA congressional notification. defenceWeb, “Nigeria requests $346 million worth of guided and unguided weapons from US,” https://defenceweb.co.za/african-news/nigeria-requests-346-million-worth-of-guided-and-unguided-weapons-from-us/ Clopus
Nigeria is looking to buy $346 million worth of munitions from the United States, including guided bombs and rockets, with the State Department approving the possible sale.
The US Defense Security Cooperation Agency (DSCA) on 13 August said it had notified Congress of the potential sale on Wednesday.
Nigeria has requested to buy 1 002 Mk 82 general purpose 500 lb (226 kg) bombs; 1 002 MXU-650 Air Foil Groups (AFGs) for 500 lb Paveway II GBU-12 bombs; 515 MXU-1006 AFGs for 250 lb (113 kg) Paveway II GBU-58 bombs; 1 517 MAU-169 or MAU-209 computer control group (CCG) for Paveway II GBU-12/GBU-58 bombs; 1 002 FMU-152 joint programmable fuzes; and 5 000 Advanced Precision Kill Weapon System II (APKWS II) all-up-rounds (AURs) (consisting of one each WGU-59/B guidance section; high-explosive warhead; and MK66-4 rocket motor).
Also included in the potential sale are FMU-139 joint programmable fuzes; bomb components, impulse cartridges, and high-explosive and practice rockets; and support.
“The proposed sale will improve Nigeria’s capability to meet current and future threats through operations against terrorist organisations and to counter illicit trafficking in Nigeria and the Gulf of Guinea. Nigeria will have no difficulty absorbing these munitions into its armed forces,” the DSCA said.
The principal contractors will be RTX Missiles and Defense, Lockheed Martin Corporation, and BAE Systems.
While not specifying which platforms the munitions are being acquired for, it is likely that they will be for the Nigerian Air Force’s A-29 Super Tucano light combat/trainer aircraft acquired via US company Sierra Nevada Corporation. They have been heavily used to combat Boko Haram terrorists, bandits, and other security threats in Nigeria.
In August 2024, the Nigerian Super Tucano fleet logged 10 000 flying hours. At the time the Air Force said “since its induction in August 2021, the A-29 Super Tucano fleet has been involved in several decisive missions in the various operational theatres across the country. So far, over 8 500 hours flown on the fleet were dedicated to both day and night operational sorties against terrorists, bandits and other violent non-state actors threatening national peace. No doubt, the aircraft’s night and precision munitions delivery capability has undoubtedly enhanced NAF’s versatility, flexibility and lethality in all air operations.”
A Nigerian Air Force Super Tucano.
When Nigeria bought its 12 Super Tucanos, it also acquired GBU-12 and GBU-58 Paveway II guided bombs, Laser Guided Rockets including Advanced Precision Kill Weapon System (APKWS) rounds; Mk 81 bombs; and 70 mm Hydra 70 unguided rockets.
The latest request for munitions could also indicate use on the Air Force’s dozen new AH-1Z Viper attack helicopters. Bell Textron was in March 2024 awarded a $455 million production contract, with work to be completed in July 2028. The Nigerian Air Force also has 24 M-346 combat/trainer aircraft on order from Leonardo.
Last month, Chief of Air Staff, Air Marshal Hasan Abubakar, said the Nigerian Air Force would acquire 49 state-of-the-art aircraft by the end of 2026. This figure includes three Airbus C295 transport aircraft; ten Leonardo AW109 Trekker helicopters; 12 AH-1Z attack helicopters; and 24 M-346s.
In the last two years the Air Force has received six Turkish Aerospace Industries T-129 ATAK helicopters; two AW109 Trekker helicopters; three Beechcraft King Air aircraft; and four Diamond 62 reconnaissance aircraft.
Strengthening the Nigerian Air Force comes amid continued pressure from Islamist terror groups and bandits. Abubakar this month said Nigeria’s military has killed 592 armed militia members in the northeastern sate of Borno in the past eight months, after stepping up air strikes in a region plagued by violence.
Abubakar said the Air Force also destroyed more than 200 technical vehicles and 166 logistics hubs in a sweeping offensive against insurgents in the northeast. “This year, our air war is faster, sharper and more surgical,” Abubakar said. “We are taking out high-value targets, crippling logistics networks and dismantling cells that threaten peace in the northeast.”
He said Nigerian Air Force aircraft flew 798 combat sorties and logged over 1 500 operational flight hours under Operation Hadin Kai, Nigeria’s military’s counterinsurgency operation in the northeast.
According to the Africa Center for Strategic Studies (ACSS), Nigeria experienced an 18% increase in fatalities tied to militant Islamist groups over the past year. Borno State in Nigeria’s North East Zone remains the epicentre of this violence and Nigeria accounts for 74% of all fatalities in the Lake Chad Basin region – a total of 3 982 deaths in the last year for the area.
210It worked here---the committees froze this exact helicopter case over civilian harm.
Martin 21 — Guy Martin. July 30. Journalist at defenceWeb, the African defence industry publication. defenceWeb, “United States stalling on AH-1 Cobra sale to Nigeria,” https://defenceweb.co.za/aerospace/aerospace-aerospace/united-states-stalling-on-ah-1-cobra-sale-to-nigeria/ Clopus
Nigeria is attempting to acquire a dozen AH-1 Cobra attack helicopters from the United States, but the sale is being held back by US lawmakers over Nigeria’s human rights record.
US officials and congressional aides told Foreign Policy that Nigeria is seeking to acquire 12 Bell AH-1 Cobra helicopters and associated equipment in a deal worth around $875 million, but the Senate Foreign Relations Committee has delayed approving the sale. It is not known if the requested sale covers new-built AH-1Z Vipers or second-hand AH-1W Super Cobras.
With foreign military sales, the US State Department notifies Congress through the Senate Foreign Relations Committee and House Foreign Affairs Committee in advance of a formal notification. If committee members raise concerns about the proposed sale, the committees can freeze the sale until their concerns are addressed by the State Department.
According to Foreign Policy, the top Republican in the House Foreign Affairs Committee, Michael McCaul, has signed off on the Cobra sale, but Senator Bob Menendez, chairperson of the Senate Foreign Relations Committee, and Senator Jim Risch, the top Republican on the Senate Foreign Relations Committee, have apparently placed a hold on the proposed sale over concerns with Nigeria’s human rights record.
Quoting anonymous officials, Foreign Policy reported that the US State Department informed Congress of the intended sale in January. The deal involves 28 GE Aviation engines, 14 Honeywell navigation systems and 2 000 Advanced Precision Kill Weapon Systems laser-guided rockets.
In June this year Menendez told the Senate Foreign Relations Committee that “coups in Mali and Chad have undermined international counterterrorism and development efforts, and Nigeria requires a fundamental rethink of the framework of our overall engagement.”
In October last year he condemned the Nigerian government’s crackdown on protestors calling for an end to police brutality, saying, “I condemn the shooting of innocent civilians in Nigeria, and call for an immediate transparent investigation into the alleged actions of the military. I stand in solidarity with Nigerians who are peacefully calling for police reforms and an end to government corruption, and call on President Buhari to ensure security forces cease their violent crackdown on demonstrators. Civilian control of the military is a hallmark of a true democracy and the eyes of the world are now on Nigeria and President Buhari.”
Thousands of Nigerians protested nationwide for nearly two weeks last October, demanding an end to a police unit called the Special Anti-Robbery Squad (SARS), which they said was responsible for extortion and human rights abuses. The police disbanded SARS, but denied most accusations.