225Presidents do pause munitions over civilian harm---the levers get used.
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."
226Post-plan the President can’t consent---the test is what we would do.
AECA 3 — United States Congress. June 30, 1976. Section 3 of the Arms Export Control Act, the statutory bar on onward transfer of U.S. defense articles. Office of the Law Revision Counsel, “22 U.S. Code §2753---Eligibility for defense services or defense articles,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2753&num=0&edition=prelim Clopus
No defense article or defense service shall be sold or leased by the United States Government under this chapter to any country or international organization, and no agreement shall be entered into for a cooperative project (as defined in section 2767 of this title ), unless-
(1) the President finds that the furnishing of defense articles and defense services to such country or international organization will strengthen the security of the United States and promote world peace;
(2) the country or international organization shall have agreed not to transfer title to, or possession of, any defense article or related training or other defense service so furnished to it, or produced in a cooperative project (as defined in section 2767 of this title ), to anyone not an officer, employee, or agent of that country or international organization (or the North Atlantic Treaty Organization or the specified member countries (other than the United States) in the case of a cooperative project) and not to use or permit the use of such article or related training or other defense service for purposes other than those for which furnished unless the consent of the President has first been obtained;
(3) the country or international organization shall have agreed that it will maintain the security of such article or service and will provide substantially the same degree of security protection afforded to such article or service by the United States Government; and
(4) the country or international organization is otherwise eligible to purchase or lease defense articles or defense services.
In considering a request for approval of any transfer of any weapon, weapons system, munitions, aircraft, military boat, military vessel, or other implement of war to another country, the President shall not give his consent under paragraph (2) to the transfer unless the United States itself would transfer the defense article under consideration to that country. In addition, the President shall not give his consent under paragraph (2) to the transfer of any significant defense articles on the United States Munitions List unless the foreign country requesting consent to transfer agrees to demilitarize such defense articles prior to transfer, or the proposed recipient foreign country provides a commitment in writing to the United States Government that it will not transfer such defense articles, if not demilitarized, to any other foreign country or person without first obtaining the consent of the President. The President shall promptly submit a report 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 of the Senate on the implementation of each agreement entered into pursuant to clause (2) of this subsection.
(b) Necessity of consent by President
The consent of the President under paragraph (2) of subsection (a) or under paragraph (1) of section 2314(a) of this title (as it relates to subparagraph (B) of such paragraph) shall not be required for the transfer by a foreign country or international organization of defense articles sold by the United States under this chapter if a treaty referred to in section 2778(j)(1)(C)(i) of this title permits such transfer without prior consent of the President, or if-
(1) such articles constitute components incorporated into foreign defense articles;
(2) the recipient is the government of a member country of the North Atlantic Treaty Organization, the Government of Australia, the Government of Japan, the Government of the Republic of Korea, the Government of Israel, or the Government of New Zealand;
(3) the recipient is not a country designated under section 2371 of this title ;
(4) the United States-origin components are not-
(A) significant military equipment (as defined in section 2794(9) of this title );
(B) defense articles for which notification to Congress is required under section 2776(b) of this title ; and
(C) identified by regulation as Missile Technology Control Regime items; and
(5) the foreign country or international organization provides notification of the transfer of the defense articles to the United States Government not later than 30 days after the date of such transfer.
227The retransfer route was tried here and blocked---over civilian casualties.
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 has had a sometimes rocky road in acquiring military hardware from the United States. In 2014, the United States blocked any sale by Israel of surplus American-made weapon systems to Nigeria, nixing the proposed sale of ex-Israeli AH-1 Cobras after citing human rights concerns, saying Nigeria was not doing enough to avoid civilian casualties in the fight against Boko Haram. In 2014 the Nigerian Air Force expressed interest in acquiring a dozen Scorpion jets from Textron AirLand to fight Boko Haram insurgents, but nothing came of this.
Under former President Barack Obama’s administration, arms sales to Nigeria were cut back, but when Donald Trump assumed power in 2016, his administration agreed to sell Nigeria 12 A-29 Super Tucano turboprops manufactured in the United States by Sierra Nevada Corporation. The first six arrived in Nigeria this month.
Nigeria continues to acquire military hardware, including from Russia, Pakistan and China, to fight the Islamic State-allied group Boko Haram in the northeast and armed bandits in the northwest of the country. Nigeria is also battling rising armed robberies and kidnappings for ransom where thinly deployed security forces have struggled to contain the influence of armed gangs.
Recent Nigerian Air Force acquisitions have come from Pakistan (three JF-17 Thunder fighter jets and ten MFI-17 trainers), Italy (six armed AW109M light helicopters), Russia (a dozen Mi-35M attack helicopters), and China (CH-3, CH-4 and Wing Loong II unmanned aerial vehicles). The Air Force is also overhauling its existing fleet and bringing grounded aircraft, such as Alpha Jets and L-39s, back into service.
228The destination on the licence is the restriction---it travels with the article.
CFR 123.9 — U.S. Department of State, Directorate of Defense Trade Controls. Current through August 2026. The licensing regulation DDTC administers under the Arms Export Control Act. Code of Federal Regulations, “22 CFR §123.9---Country of ultimate destination and approval of reexports or retransfers,” https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-123/section-123.9 Clopus
( a ) The country designated as the country of ultimate destination on an application for an export license, or in an Electronic Export Information filing where an exemption is claimed under this subchapter, must be the country of ultimate end-use. The written approval of the Directorate of Defense Trade Controls must be obtained before reselling, transferring, reexporting, retransferring, transshipping, or disposing of a defense article to any end-user, end-use, or destination other than as stated on the export license, or in the Electronic Export Information filing in cases where an exemption is claimed under this subchapter, except in accordance with the provisions of an exemption under this subchapter that explicitly authorizes the resell, transfer, reexport, retransfer, transshipment, or disposition of a defense article without such approval. Exporters must determine the specific end-user, end-use, and destination prior to submitting an application to the Directorate of Defense Trade Controls or claiming an exemption under this subchapter.
Note to paragraph ( a ):
In making the aforementioned determination, a person is expected to review all readily available information, including information readily available to the public generally as well as information readily available from other parties to the transaction.
( b ) The exporter, U.S. or foreign, must inform the end-user and all consignees that the defense articles being exported are subject to U.S. export laws and regulations as follows:
( 1 ) The exporter must incorporate the following information as an integral part of the commercial invoice, whenever defense articles are to be shipped (exported in tangible form), retransferred (in tangible form), or reexported (in tangible form) pursuant to a license or other approval under this subchapter:
( i ) The country of ultimate destination;
( ii ) The end-user;
( iii ) The license or other approval number or exemption citation; and
( iv ) The following statement: “These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.”
229Weapons don’t swap platforms---even moving a station takes years of certification.
Hainline 26 — Megan Hainline. May 22. Active-duty Air Force major, F-16 weapons instructor and operational test and evaluation pilot, currently a Department of the Air Force strategic policy fellow. National Defense Magazine, “VIEWPOINT: Maximizing Airpower: Flexibility in Weapons and Platforms,” https://www.nationaldefensemagazine.org/articles/2026/5/22/maximizing-airpower-flexibility-in-weapons-and-platforms Clopus
To quickly equip forces with the most effective or available munitions, software compatibility streamlining is critical, yet remains under-resourced.
The aircraft must be able to send target information to the weapon, in the correct software language, which can vary from each aircraft.
Some programs, such as the Universal Armament Interface, have attempted the so-called modular open systems approach. It provides a standardized software interface with a weapon for multiple aircraft; however, hardware upgrades are required for each platform to enable it. These modifications have been slow or unfunded on many aircraft, including B-1 and B-52, and compliance is not enforced.
Despite policies requiring the use of open systems approaches, program offices often first pursue bespoke aircraft-specific software to speed one platform’s timeline, duplicating later work to employ the weapon from other aircraft.
This scenario occurred with the AGM-158C Long Range Anti-Ship Missile. Early threshold platforms chose aircraft-specific software integration initially, and only recently has common interface work begun, adding months to widespread weapon integration.
For interoperable standards such as the Universal Armament Interface to be effective, platform hardware modifications must be prioritized and fully resourced, and compliance must be enforced for all weapon and aircraft programs.
Another hurdle to weapons flexibility is the process ensuring physical flight safety, known as aircraft-store compatibility engineering. New weapons and sensors must be flown or modeled to ensure safe use across specific flight envelopes.
The process is time-consuming; even seemingly simple changes like moving munitions to a different aircraft station have significant flight sciences implications and can require reevaluation of airworthiness certifications. Tacticians often submit requests for new configurations, weapons loadouts or flight regimes deemed critical for combat capability, only to face years-long delays due to request backlogs for each platform.
New weapons testing delays are exacerbated by insufficient quantities of physical testing hardware, such as instrumented test vehicles — special versions of the munition or sensor wired to record flight test information. These resources are expensive and often only purchased in quantities to ensure threshold platform availability, to the detriment of fielding timelines and interoperability.
Weapons testing bottlenecks must be remedied with early investment in greater quantities of flight and ground test vehicles to support all possible platforms.
Other emerging technologies such as artificial intelligence also have the potential to accelerate aircraft-store compatibility engineering with advanced modeling and simulation.
230Licensed manufacture is a State-approved instrument---and it covers training foreign forces.
CFR 124.1 — U.S. Department of State, Directorate of Defense Trade Controls. Current through August 2026. The rule governing every licensed-manufacture and co-production agreement. Code of Federal Regulations, “22 CFR §124.1---Manufacturing license agreements and technical assistance agreements,” https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-124/section-124.1 Clopus
( a ) Approval. The approval of the Directorate of Defense Trade Controls must be obtained before the defense services described in § 120.32 of this subchapter may be furnished. In order to obtain such approval, the U.S. person must submit a proposed agreement to the Directorate of Defense Trade Controls. Such agreements are generally characterized as manufacturing license agreements, technical assistance agreements, distribution agreements, or off-shore procurement agreements, and may not enter into force without the prior written approval of the Directorate of Defense Trade Controls. Once approved, the defense services described in the agreements may generally be provided without further licensing in accordance with §§ 124.3 and 125.4(b)(2) of this subchapter . The requirements of this section apply whether or not technical data is to be disclosed or used in the performance of the defense services described in § 120.32 of this subchapter (e.g., all the information relied upon by the U.S. person in performing the defense service is in the public domain or is otherwise exempt from licensing requirements of this subchapter pursuant to § 125.4 of this subchapter ). This requirement also applies to the training of any foreign military forces, regular and irregular, in the use of defense articles. Technical assistance agreements must be submitted in such cases. In exceptional cases, the Directorate of Defense Trade Controls, upon written request, will consider approving the provision of defense services described in § 120.32 of this subchapter by granting a license under part 125 of this subchapter .
( b ) Classified articles. Copies of approved agreements involving the release of classified defense articles will be forwarded by the Directorate of Defense Trade Controls to the Defense Security Service of the Department of Defense.
( c ) Amendments. Changes to the scope of approved agreements, including modifications, upgrades, or extensions must be submitted for approval. The amendments may not enter into force until approved by the Directorate of Defense Trade Controls.
231Manufacture abroad triggers a presidential certification---the escape hatch is his own signature.
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) In the case of an approval under section 2778 of this title of a United States commercial technical assistance or manufacturing licensing agreement which involves the manufacture abroad of any item of significant combat equipment on the United States Munitions List, before such approval is given, the President shall submit a certification with respect to such proposed commercial agreement in a manner similar to the certification required under subsection (c)(1) containing comparable information, except that the last sentence of such subsection shall not apply to certifications submitted pursuant to this subsection.
(2) A certification under this subsection shall be submitted-
(A) at least 15 days before approval is given in the case of an agreement for or in a country which is a member of the North Atlantic Treaty Organization or Australia, Japan, the Republic of Korea, Israel, or New Zealand; and
(B) at least 30 days before approval is given in the case of an agreement for or in any other country;
unless the President states in his certification that an emergency exists which requires the immediate approval of the agreement in the national security interests of the United States.
232A munition is bound to its platform---integration is engineering, not smuggling.
Hainline 26 — Megan Hainline. May 22. Active-duty Air Force major, F-16 weapons instructor and operational test and evaluation pilot, currently a Department of the Air Force strategic policy fellow. National Defense Magazine, “VIEWPOINT: Maximizing Airpower: Flexibility in Weapons and Platforms,” https://www.nationaldefensemagazine.org/articles/2026/5/22/maximizing-airpower-flexibility-in-weapons-and-platforms Clopus
To quickly equip forces with the most effective or available munitions, software compatibility streamlining is critical, yet remains under-resourced.
The aircraft must be able to send target information to the weapon, in the correct software language, which can vary from each aircraft.
Some programs, such as the Universal Armament Interface, have attempted the so-called modular open systems approach. It provides a standardized software interface with a weapon for multiple aircraft; however, hardware upgrades are required for each platform to enable it. These modifications have been slow or unfunded on many aircraft, including B-1 and B-52, and compliance is not enforced.
Despite policies requiring the use of open systems approaches, program offices often first pursue bespoke aircraft-specific software to speed one platform’s timeline, duplicating later work to employ the weapon from other aircraft.
This scenario occurred with the AGM-158C Long Range Anti-Ship Missile. Early threshold platforms chose aircraft-specific software integration initially, and only recently has common interface work begun, adding months to widespread weapon integration.
For interoperable standards such as the Universal Armament Interface to be effective, platform hardware modifications must be prioritized and fully resourced, and compliance must be enforced for all weapon and aircraft programs.
Another hurdle to weapons flexibility is the process ensuring physical flight safety, known as aircraft-store compatibility engineering. New weapons and sensors must be flown or modeled to ensure safe use across specific flight envelopes.
The process is time-consuming; even seemingly simple changes like moving munitions to a different aircraft station have significant flight sciences implications and can require reevaluation of airworthiness certifications. Tacticians often submit requests for new configurations, weapons loadouts or flight regimes deemed critical for combat capability, only to face years-long delays due to request backlogs for each platform.
New weapons testing delays are exacerbated by insufficient quantities of physical testing hardware, such as instrumented test vehicles — special versions of the munition or sensor wired to record flight test information. These resources are expensive and often only purchased in quantities to ensure threshold platform availability, to the detriment of fielding timelines and interoperability.
Weapons testing bottlenecks must be remedied with early investment in greater quantities of flight and ground test vehicles to support all possible platforms.
Other emerging technologies such as artificial intelligence also have the potential to accelerate aircraft-store compatibility engineering with advanced modeling and simulation.
233Unauthorized onward use ends cash sales and deliveries---the statute cuts the pipe.
AECA 3 — United States Congress. June 30, 1976. Section 3 of the Arms Export Control Act, the statutory bar on onward transfer of U.S. defense articles. Office of the Law Revision Counsel, “22 U.S. Code §2753---Eligibility for defense services or defense articles,” https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title22-section2753&num=0&edition=prelim Clopus
(1)(A) No credits (including participations in credits) may be issued and no guaranties may be extended for any foreign country under this chapter as hereinafter provided, if such country uses defense articles or defense services furnished under this chapter, or any predecessor Act, in substantial violation (either in terms of quantities or in terms of the gravity of the consequences regardless of the quantities involved) of any agreement entered into pursuant to any such Act (i) by using such articles or services for a purpose not authorized under section 2754 of this title or, if such agreement provides that such articles or services may only be used for purposes more limited than those authorized under section 2754 of this title for a purpose not authorized under such agreement; (ii) by transferring such articles or services to, or permitting any use of such articles or services by, anyone not an officer, employee, or agent of the recipient country without the consent of the President; or (iii) by failing to maintain the security of such articles or services.
(B) No cash sales or deliveries pursuant to previous sales may be made with respect to any foreign country under this chapter as hereinafter provided, if such country uses defense articles or defense services furnished under this chapter, or any predecessor Act, in substantial violation (either in terms of quantity or in terms of the gravity of the consequences regardless of the quantities involved) of any agreement entered into pursuant to any such Act by using such articles or services for a purpose not authorized under section 2754 of this title or, if such agreement provides that such articles or services may only be used for purposes more limited than those authorized under section 2754 of this title , for a purpose not authorized under such agreement.
(2) The President shall report to the Congress promptly upon the receipt of information that a violation described in paragraph (1) of this subsection may have occurred.
234The restriction travels with the item---including after it’s built into something else.
CFR 123.9 — U.S. Department of State, Directorate of Defense Trade Controls. Current through August 2026. The licensing regulation DDTC administers under the Arms Export Control Act. Code of Federal Regulations, “22 CFR §123.9---Country of ultimate destination and approval of reexports or retransfers,” https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-123/section-123.9 Clopus
( a ) The country designated as the country of ultimate destination on an application for an export license, or in an Electronic Export Information filing where an exemption is claimed under this subchapter, must be the country of ultimate end-use. The written approval of the Directorate of Defense Trade Controls must be obtained before reselling, transferring, reexporting, retransferring, transshipping, or disposing of a defense article to any end-user, end-use, or destination other than as stated on the export license, or in the Electronic Export Information filing in cases where an exemption is claimed under this subchapter, except in accordance with the provisions of an exemption under this subchapter that explicitly authorizes the resell, transfer, reexport, retransfer, transshipment, or disposition of a defense article without such approval. Exporters must determine the specific end-user, end-use, and destination prior to submitting an application to the Directorate of Defense Trade Controls or claiming an exemption under this subchapter.
Note to paragraph ( a ):
In making the aforementioned determination, a person is expected to review all readily available information, including information readily available to the public generally as well as information readily available from other parties to the transaction.
( b ) The exporter, U.S. or foreign, must inform the end-user and all consignees that the defense articles being exported are subject to U.S. export laws and regulations as follows:
( 1 ) The exporter must incorporate the following information as an integral part of the commercial invoice, whenever defense articles are to be shipped (exported in tangible form), retransferred (in tangible form), or reexported (in tangible form) pursuant to a license or other approval under this subchapter:
( i ) The country of ultimate destination;
( ii ) The end-user;
( iii ) The license or other approval number or exemption citation; and
( iv ) The following statement: “These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.”
235The exemption is bounded to Australia, the UK and the United States---and nowhere else.
CFR 126.7 — U.S. Department of State, Directorate of Defense Trade Controls. Current through August 2026. The AUKUS licence-free exemption, in the regulation’s own words. Code of Federal Regulations, “22 CFR §126.7---Exemptions for defense trade and cooperation among Australia, the United Kingdom, and the United States,” https://www.ecfr.gov/current/title-22/chapter-I/subchapter-M/part-126/section-126.7 Clopus
( a ) By U.S. persons, government departments or agencies, or Authorized Users. No license is required for the export, reexport, retransfer, or temporary import of defense articles, furnishing of defense services, or engaging in brokering activities as described in part 129 of this subchapter , between or among parties described in § 126.7(b)(2) , subject to the requirements and limitations in paragraph (b) of this section.
( b ) Requirements and limitations. The exemption described in paragraph (a) of this section is subject to the following requirements and limitations:
( 1 ) The activity must be to or within the physical territory of Australia, the United Kingdom, or the United States;
236There are three switches and the executive holds all of them.
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."
237It’s bombs and rockets for the Super Tucano---the fleet that flies the campaign.
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.
238The whole portfolio is a handful of FMS cases and an advisory line.
State PM 25 — U.S. Department of State, Bureau of Political-Military Affairs. January 20. The bureau that administers Foreign Military Sales and export licensing, describing its own Nigeria portfolio. U.S. Department of State, “U.S. Security Cooperation with Nigeria,” https://www.state.gov/u-s-security-cooperation-with-nigeria Clopus
For more than 50 years, the United States and Nigeria have enjoyed a strong security partnership and friendship. The U.S.-Nigeria relationship is among the most important in sub-Saharan Africa, given Nigeria’s status as Africa’s most populous country, largest economy, and our shared democratic values. The United States works closely with Nigeria, both bilaterally and through regional and multilateral fora like the Economic Community of West African States (ECOWAS), the Multinational Joint Task Force (MNJTF) , the Global Coalition to Defeat Daesh/ISIS , and the African Union . Our joint efforts are focused on increasing cooperation on maritime and border security, military professionalization, counterterrorism efforts against Boko Haram and ISIS-West Africa, defense trade, and strengthening governance of the security sector.
The Department of State provides Nigeria with one of the highest International Military Education and Training (IMET) allocations in sub-Saharan Africa, with approximately $5 million obligated from FY 2019 –2023.. Nigeria is also a partner in the Africa Military Education Program (AMEP) and has benefited from approximately $500,000 since FY 2016 to support instructor and curriculum development at Nigerian military schools. From FY 2016-FY 2020, $1.8 million was obligated for Nigeria in Foreign Military Financing to support maritime security, military professionalization, and counterterrorism efforts. Nigeria is an active member of the Trans-Sahara Counterterrorism Partnership (TSCTP) and has benefitted over $8 million worth of training, equipment, and advisory support for counterterrorism efforts between FY 2019-FY 2023.
The United States has $590 million in active government-to-government sales cases with Nigeria under the Foreign Military Sales (FMS) system. Recent and significant sales include the 2017 sale of 12 A-29 Super Tucano aircraft worth $497 million to support Nigerian military operations against Boko Haram and ISIS West Africa. The case included special training on International Humanitarian Law, including an Air-to-Ground Integration (AGI) program designed to provide institutional and technical training to the Armed Forces of Nigeria (AFN) in order to mitigate the risk of civilian harm incidents. In August of last year, Nigeria delivered the first payment for 12 AH-1Z Attack Helicopters worth a total of $997 million. The FMS case includes an additional$25 million of funding allocated for the Nigeria’s AGI program, which continues to train the AFN on developing targeting processes that are legally compliant with International Humanitarian Law; The light attack and Intelligence, Surveillance, and Reconnaissance (ISR) capabilities Nigeria is developing will involve more than just airplanes; Nigeria will have the trained personnel and sustainment infrastructure to ensure a robust capability for the aircrafts’ full-service lifetime.
In FY 2018-22, the United States also authorized the permanent export of over $53 million in defense articles to Nigeria via the Direct Commercial Sales (DCS) process. The top three categories of defense exports to Nigeria were Fire Control, Laser, Imaging, and Guidance Equipment; Firearms and Related Articles; and Guns and Armament.
Building on the AGI program, the Department of State has obligated $941,000 in Peacekeeping Operations Funds (PKO) since 2021 for advisory services to the AFN to enhance accountability and justice by developing systems and practices on civilian harm mitigation.
In 2011 and 2015 Nigeria received $15 million in defense articles granted under the Excess Defense Articles program, to include 24 Mine-Resistant Ambush Protected (MRAP) vehicles and two Hamilton-class U.S. Coast Guard high endurance cutters – the USCGC Chase and USCGC Gallatin – which entered service in the Nigerian Navy as Thunder and Okpabana in 2011 and 2014, respectively.
In 2016, the United States and Nigeria signed an Acquisition and Cross-Servicing Agreement to exchange common types of support, including food, fuel, transportation, ammunition, and equipment. Since 2000, the United States has had a Status of Forces Agreement with Nigeria establishing the legal framework under which U.S. military personnel may operate when present in Nigeria.