211Refusal isn’t inability---societies fail at things they could do easily.
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
(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.
212Congress already put the whole export decision in one pair of hands.
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.
213Their 1NC author concedes the executive does get pulled into compliance.
Chappell 24 — John Ramming Chappell. March. Advocacy and legal fellow in the U.S. Program at the Center for Civilians in Conflict. Arms Control Today, “Can Biden’s New Arms Transfer Policy Be More Than an Empty Promise?,” https://www.armscontrol.org/act/2024-03/features/can-bidens-new-arms-transfer-policy-be-more-empty-promise Clopus
Law should be enough to force action. Policies to pressure the executive branch into compliance with statutes should not be necessary. In practice, however, congressional vigilance historically has been required to nudge the executive branch into compliance.
A Catalyst for Congress
The potential of NSM-20 lies in its reporting requirements. Reporting to Congress and the public creates opportunities for legislators, advocates, and constituents to pressure the executive branch to implement the law in good faith. Must-pass legislation such as the National Defense Authorization Act and appropriations acts provides opportunities for legislators to force the executive branch to implement the law in conjunction with periodic reports. Such a process, over the course of many years, made the Leahy law into the cornerstone security assistance law that it is today.
The fact that civilians in Yemen and Gaza, where U.S.-provided bombs have exacerbated humanitarian crises, have suffered from restrictions on U.S. humanitarian aid imposed by U.S. allies and partners speaks to the urgency of implementing Section 620I. Whether NSM-20 will change outcomes depends on whether Congress uses the opportunity that reports present to pressure the administration to comply with the law.
214The hardware sat in American warehouses for over a year---paid for, undelivered.
Hawthorne 14 — Amy Hawthorne. October 16. Senior fellow at the Rafik Hariri Center for the Middle East at the Atlantic Council. Atlantic Council, “What’s Happening with Suspended Military Aid for Egypt? Part I,” https://www.atlanticcouncil.org/blogs/menasource/what-s-happening-with-suspended-military-aid-for-egypt-part-i/ Clopus
Last October, the Obama administration announced it was holding back four large-scale weapons systems purchased for Egypt, including 125 M1-A1 battle tank kits, twenty F-16 fighter jets, twenty Harpoon cruise missiles, and ten Apache attack helicopters. It made their delivery contingent upon “credible progress toward an inclusive, democratically elected civilian government through free and fair elections.” This was a significant move, the first time a US administration had ever suspended any of the annual $1.3 billion military aid package. The administration lifted its hold on the Apaches, which are now on their way to Egypt , but the other weapons remain in storage in the United States, more than a year later.
The new aid policy, along with restrictions on military assistance enacted by Congress, sought to alter the bargain with Egypt from weapons in exchange for peace with Israel, to weapons in exchange for peace and democratic progress. This has of course angered Egypt, used to a steady flow of American weapons since the 1979 Peace Treaty regardless of its human rights record. On his first trip to the United States as president last month, Abdel Fattah al-Sisi complained about the suspension in a Charlie Rose interview . The Peace Treaty remains secure, but the policy has not advanced stated US democracy goals. During the past year, Egypt has slid back into authoritarian rule , experiencing one of the worst periods of repression in its modern history. This article discusses why the suspension has not been an effective democracy promotion lever; a forthcoming article will cover the status of the military aid on which Congress has imposed democracy conditions.
215Turkey owned the aircraft and never got them---possession beats the contract.
Mehta 19 — Aaron Mehta. July 17. Deputy editor and senior Pentagon correspondent for Defense News, reporting from the on-camera Pentagon briefing. Defense News, “Turkey officially kicked out of F-35 program, costing US half a billion dollars,” https://www.defensenews.com/air/2019/07/17/turkey-officially-kicked-out-of-f-35-program/ Clopus
WASHINGTON — The U.S. has removed Turkey from the F-35 joint strike fighter program, and Turkey will lose its production work on the jet by March 2020, following its acceptance of the S-400 Russian-made air defense system last Friday .
However, a top Pentagon official would not close the door on Turkey rejoining the program in some form, should it reverse the decision to buy the S-400.
The White House issued a statement Wednesday confirming the move, which Washington had threatened for months.
“Turkey’s decision to purchase Russian S-400 air defense systems renders its continued involvement with the F-35 impossible,” the White House statement read. “The F-35 cannot coexist with a Russian intelligence collection platform that will be used to learn about its advanced capabilities.”
“Turkey has been a longstanding and trusted partner and NATO Ally for over 65 years, but accepting the S-400 undermines the commitments all NATO Allies made to each other to move away from Russian systems," the statement continued.
Shortly after the statement was released, the Pentagon held a rare on-camera press conference to explain the process moving forward, with Undersecretary of Defense for Acquisition Ellen Lord and Deputy Undersecretary of Defense for Policy David Trachtenberg.
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“Turkey cannot field a Russian intelligence collection platform in proximity to where the F-35 program makes repairs, and houses the F-35,” Lord said. “Much of the F-35′s strength lies in its stealth capabilities, so the ability to detect those capabilities would jeopardize the long term security of the F-35 program. We seek only to protect the long term security of the F-35 program.”
Turkey, a partner in the F-35 program that helped fund the development of the jet, planned to buy 100 F-35As. Its first jet was rolled out in June 2018 in a festive “delivery ceremony." Though Turkey formally owns its jets, the U.S. has said it has the power to keep the planes from moving to Turkish soil and intends to keep all four existing Turkish jets from leaving the U.S.
Lord avoided saying that the door was shut on Turkey returning to the program should the S-400 be removed from its soil and repeatedly used the term “suspension” to characterize Turkey’s status in the F-35 program. When asked twice whether Turkey could be welcomed back if the situation changes, Lord did not give a direct answer one way or the other.
“At this point, the Turks have made a decision. We have said the F-35 and S-400 are incompatible. We will work forward at this point to unwind the relationship," she said.
All Turkish F-35 personnel have been informed they must leave the U.S. by July 31, including 20 individuals assigned to the Joint Program Office. Neither official would comment on if any of those individuals have requested asylum.
By March 2020, Turkey’s industrial participation in the F-35 program, which includes production on about 900 parts for the stealthy fighter, will be “unwound." Lord said the projection is this will cost Turkey’s economy around $9 billion over the life of the program. American suppliers will initially fill those production roles, but the goal is to eventually farm some of it out to other partners.
Lord said the process will have “minimal” impacts on the larger F-35 program because of the planning that has already gone on for several months.
To move the production from Turkey to the U.S. will require between $500-$600 million in nonrecurring engineering costs, Lord said. Which partners, if any, would be willing to buy the F-35s already in production for Turkey was still being worked out.
216Their own author---restraint law hardens over time instead of decaying.
Chappell 24 — John Ramming Chappell. March. Advocacy and legal fellow in the U.S. Program at the Center for Civilians in Conflict. Arms Control Today, “Can Biden’s New Arms Transfer Policy Be More Than an Empty Promise?,” https://www.armscontrol.org/act/2024-03/features/can-bidens-new-arms-transfer-policy-be-more-empty-promise Clopus
Law should be enough to force action. Policies to pressure the executive branch into compliance with statutes should not be necessary. In practice, however, congressional vigilance historically has been required to nudge the executive branch into compliance.
A Catalyst for Congress
The potential of NSM-20 lies in its reporting requirements. Reporting to Congress and the public creates opportunities for legislators, advocates, and constituents to pressure the executive branch to implement the law in good faith. Must-pass legislation such as the National Defense Authorization Act and appropriations acts provides opportunities for legislators to force the executive branch to implement the law in conjunction with periodic reports. Such a process, over the course of many years, made the Leahy law into the cornerstone security assistance law that it is today.
The fact that civilians in Yemen and Gaza, where U.S.-provided bombs have exacerbated humanitarian crises, have suffered from restrictions on U.S. humanitarian aid imposed by U.S. allies and partners speaks to the urgency of implementing Section 620I. Whether NSM-20 will change outcomes depends on whether Congress uses the opportunity that reports present to pressure the administration to comply with the law.
217One decision point---revocation takes no notice and no cooperation from the buyer.
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."
218Moving the article without the authorization is criminal---twenty years, per violation.
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
Any person who willfully violates any provision of this section, section 2779 of this title , a treaty referred to in subsection (j)(1)(C)(i), or any rule or regulation issued under this section or section 2779 of this title , including any rule or regulation issued to implement or enforce a treaty referred to in subsection (j)(1)(C)(i) or an implementing arrangement pursuant to such treaty, or who willfully, in a registration or license application or required report, makes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon conviction be fined for each violation not more than $1,000,000 or imprisoned not more than 20 years, or both.
219Congress closed this after Iran-Contra---no finding may break a statute.
IAA 91 — United States Congress. August 14, 1991. The Intelligence Authorization Act finding requirements, written by Congress in direct response to Iran-Contra. Office of the Law Revision Counsel, “50 U.S. Code §3093---Presidential approval and reporting of covert actions,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section3093&num=0&edition=prelim Clopus
The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions:
(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President's decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.
(2) Except as permitted by paragraph (1), a finding may not authorize or sanction a covert action, or any aspect of any such action, which already has occurred.
(3) Each finding shall specify each department, agency, or entity of the United States Government authorized to fund or otherwise participate in any significant way in such action. Any employee, contractor, or contract agent of a department, agency, or entity of the United States Government other than the Central Intelligence Agency directed to participate in any way in a covert action shall be subject either to the policies and regulations of the Central Intelligence Agency, or to written policies or regulations adopted by such department, agency, or entity, to govern such participation.
(4) Each finding shall specify whether it is contemplated that any third party which is not an element of, or a contractor or contract agent of, the United States Government, or is not otherwise subject to United States Government policies and regulations, will be used to fund or otherwise participate in any significant way in the covert action concerned, or be used to undertake the covert action concerned on behalf of the United States.
(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.
(b) Reports to congressional intelligence committees; production of information
To the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of National Intelligence and the heads of all departments, agencies, and entities of the United States Government involved in a covert action-
(1) shall keep the congressional intelligence committees fully and currently informed of all covert actions which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including significant failures; and
220Their own author---these authorities run to paramilitaries and proxy forces.
Ebright 22 — Katherine Yon Ebright. November 3. Counsel in the Liberty and National Security Program at the Brennan Center for Justice. Brennan Center for Justice, “Secret War: How the U.S. Uses Partnerships and Proxy Forces to Wage War Under the Radar,” https://www.brennancenter.org/our-work/research-reports/secret-war Clopus
This proliferation of secret war is a relatively recent phenomenon, and it is undemocratic and dangerous. The conduct of undisclosed hostilities in unreported countries contravenes our constitutional design. It invites military escalation that is unforeseeable to the public, to Congress, and even to the diplomats charged with managing U.S. foreign relations. And it risks poorly conceived, counterproductive operations with runaway costs, in terms of both dollars and civilian lives. So how did we get here?
Two sources of the government’s ability to wage war in secret are already the subject of much discussion. The first is the 2001 Authorization for Use of Military Force (AUMF), which was enacted in the wake of the September 11 attacks. Notwithstanding the limitations in its text, the 2001 AUMF has been stretched by four successive administrations to cover a broad assortment of terrorist groups, the full list of which the executive branch long withheld from Congress and still withholds from the public. The second is the covert action statute, an authority for secret, unattributed, and primarily CIA-led operations that can involve the use of force. 4 Despite a series of Cold War–era executive orders that prohibit assassinations, the covert action statute has been used throughout the war on terror to conduct drone strikes outside areas of active hostilities.
But there is a third class of statutory authorities that enable undisclosed hostilities yet have received little public attention: security cooperation authorities. Congress enacted these provisions in the years following September 11 to allow U.S. forces to work through and with foreign partners. One of them, now codified at 10 U.S.C. § 333, permits the Department of Defense to train and equip foreign forces anywhere in the world. Another, now codified at 10 U.S.C. § 127e, authorizes the Department of Defense to provide “support” to foreign forces, paramilitaries, and private individuals who are in turn “supporting” U.S. counterterrorism operations.
While training and support may sound benign, these authorities have been used beyond their intended purpose. Section 333 programs have resulted in U.S. forces pursuing their partners’ adversaries under a strained interpretation of constitutional self-defense. Section 127e programs have allowed the United States to develop and control proxy forces that fight on behalf of and sometimes alongside U.S. forces. In short, these programs have enabled or been used as a springboard for hostilities.
The public and even most of Congress is unaware of the nature and scope of these programs. The Department of Defense has given little indication of how it interprets §§ 333 and 127e, how it decides which § 333 partner forces to defend, and where it conducts § 127e programs. When U.S. forces operating under these authorities direct or engage in combat, the Department of Defense often declines to inform Congress and the public, reasoning that the incident was too minor to trigger statutory reporting requirements.
Notwithstanding the challenges Congress has faced in overseeing activities under §§ 333 and 127e, Congress recently expanded the Department of Defense’s security cooperation authorities. Section 1202 of the National Defense Authorization Act (NDAA) for 2018 largely mirrors § 127e, but instead of supporting U.S. counterterrorism efforts, the partner forces it covers are intended to support U.S. “irregular warfare operations” against “rogue states,” such as Iran or North Korea, or “near-peers,” such as Russia and China. Far beyond the bounds of the war on terror, § 1202 may be used to engage in low-level conflict with powerful, even nuclear, states.
221This is a declared government-to-government case with named US primes.
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.
222Their own rule---the transfer off the list keeps the licence requirement.
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.
223Delisting is notified, in advance, with the replacement controls spelled out.
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.
224The prime contractor’s own supply chain took the hit---the transfer stopped anyway.
Mehta 19 — Aaron Mehta. July 17. Deputy editor and senior Pentagon correspondent for Defense News, reporting from the on-camera Pentagon briefing. Defense News, “Turkey officially kicked out of F-35 program, costing US half a billion dollars,” https://www.defensenews.com/air/2019/07/17/turkey-officially-kicked-out-of-f-35-program/ Clopus
WASHINGTON — The U.S. has removed Turkey from the F-35 joint strike fighter program, and Turkey will lose its production work on the jet by March 2020, following its acceptance of the S-400 Russian-made air defense system last Friday .
However, a top Pentagon official would not close the door on Turkey rejoining the program in some form, should it reverse the decision to buy the S-400.
The White House issued a statement Wednesday confirming the move, which Washington had threatened for months.
“Turkey’s decision to purchase Russian S-400 air defense systems renders its continued involvement with the F-35 impossible,” the White House statement read. “The F-35 cannot coexist with a Russian intelligence collection platform that will be used to learn about its advanced capabilities.”
“Turkey has been a longstanding and trusted partner and NATO Ally for over 65 years, but accepting the S-400 undermines the commitments all NATO Allies made to each other to move away from Russian systems," the statement continued.
Shortly after the statement was released, the Pentagon held a rare on-camera press conference to explain the process moving forward, with Undersecretary of Defense for Acquisition Ellen Lord and Deputy Undersecretary of Defense for Policy David Trachtenberg.
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“Turkey cannot field a Russian intelligence collection platform in proximity to where the F-35 program makes repairs, and houses the F-35,” Lord said. “Much of the F-35′s strength lies in its stealth capabilities, so the ability to detect those capabilities would jeopardize the long term security of the F-35 program. We seek only to protect the long term security of the F-35 program.”
Turkey, a partner in the F-35 program that helped fund the development of the jet, planned to buy 100 F-35As. Its first jet was rolled out in June 2018 in a festive “delivery ceremony." Though Turkey formally owns its jets, the U.S. has said it has the power to keep the planes from moving to Turkish soil and intends to keep all four existing Turkish jets from leaving the U.S.
Lord avoided saying that the door was shut on Turkey returning to the program should the S-400 be removed from its soil and repeatedly used the term “suspension” to characterize Turkey’s status in the F-35 program. When asked twice whether Turkey could be welcomed back if the situation changes, Lord did not give a direct answer one way or the other.
“At this point, the Turks have made a decision. We have said the F-35 and S-400 are incompatible. We will work forward at this point to unwind the relationship," she said.
All Turkish F-35 personnel have been informed they must leave the U.S. by July 31, including 20 individuals assigned to the Joint Program Office. Neither official would comment on if any of those individuals have requested asylum.
By March 2020, Turkey’s industrial participation in the F-35 program, which includes production on about 900 parts for the stealthy fighter, will be “unwound." Lord said the projection is this will cost Turkey’s economy around $9 billion over the life of the program. American suppliers will initially fill those production roles, but the goal is to eventually farm some of it out to other partners.
Lord said the process will have “minimal” impacts on the larger F-35 program because of the planning that has already gone on for several months.
To move the production from Turkey to the U.S. will require between $500-$600 million in nonrecurring engineering costs, Lord said. Which partners, if any, would be willing to buy the F-35s already in production for Turkey was still being worked out.