II. CHANGES IN THE LEGAL REGIME

The United States provides various forms of military assistance, including sales, financing, equipment grants, and training, which it acknowledges (see table 1), and covert assistance, which it does not. Foreign governments negotiate "foreign military sales" (FMS) directly with the U.S. government under a program that allows the United States to sell either current defense stocks or yet-to-be-produced items. Alternatively, potential purchasers can pursue "direct commercial sales" (DCS) with private U.S. companies and then apply for an export license from the State Department's Office of Defense Trade Controls. The United States sometimes helps fund arms purchases with its Foreign Military Financing (FMF) program, which provides congressionally appropriated loans or grants earmarked for purchasing U.S.-made weapons. The United States also offers two types of grants of military equipment. Under the Excess Defense Articles (EDA) program, the Pentagon gives away older equipment that it no longer uses at little or no cost. In emergencies, the government is authorized to offer "drawdowns," grants of current defense stock, often but not always in the form of nonlethal equipment. Finally the United States organizes and helps fund different types of training for foreign security forces. The International Military Education and Training (IMET) program allows foreign military officials to train in the United States. Under the Joint Combined Exchange Training (JCET) program, U.S. special operations forces are deployed overseas and train with foreign militaries there.

Table 1-Types of U.S. Foreign Military Assistance

Category	Type of Assistance	Acronym	Description
Sales	Foreign Military Sales	FMS	Sales from U.S. government to foreign governments
	Direct Commercial Sales	DCS	Sales from U.S. companies to foreign governments
Financing	Foreign Military Financing	FMF	Congressionally appropriated grants and loans given to foreign governments to help finance FMS or DCS
Equipment Grants	Excess Defense Articles	EDA	Older surplus equipment that the Pentagon gives away at little or no cost
	Drawdowns		Grants of current (often nonlethal) defense stock given by the U.S. government in emergency situations
Training	International Military Education and Training	IMET	U.S. training of foreign military personnel
	Joint Combined Exchange Training	JCET	Joint training of U.S. special forces and foreign troops

A series of laws and associated regulations have governed U.S. military assistance since World War II. The Foreign Assistance Act of 1961 authorizes a variety of aid including foreign military sales, excess defense article grants, and IMET training.⁴ Section 502B of the this act forbids the transfer of assistance to governments that engage in "a consistent pattern of gross violations" of human rights, but the president can waive the restriction in "extraordinary circumstances."⁵ The Arms Export Control Act of 1976, passed in response to escalating arms sales in the 1970s, sets up elaborate procedures to regulate foreign military and direct commercial sales. It also seeks to limit the use of U.S.-made weapons to self-defense, internal security, and U.N.-sanctioned actions.⁶ Finally, Congress includes relevant provisions in its annual Foreign Operations Appropriations Act, which tend to restrict assistance to specific countries or situations. For example, a pair of provisions, known as the "Leahy Amendments" after their sponsor Senator Patrick Leahy (Democrat, Vermont), provides human rights-based controls on military assistance. The first prohibits the transfer of funds authorized by the act to any foreign security "unit" if the State Department "has credible evidence that such unit has committed gross violations of human rights." This provision has to be renewed every year, but it is unwaivable during the year.⁷ Its companion article, which can be waived under "extraordinary circumstances," prohibits the training of security units that have committed gross violations of human rights.⁸ Since September 11, both the executive and legislative branches have taken steps to loosen legal controls on foreign military assistance, paving the way for future arms transfers to governments that are known human rights abusers.

Lifting Sanctions

President George W. Bush exercised executive authority to waive restrictions on military assistance shortly after the September 11 attacks. On September 22, he lifted sanctions imposed on India and Pakistan after these nations performed nuclear tests in 1998. The 1976 Arms Export Control Act requires sanctions on countries that violate a range of nuclear controls by, for example, "detonat[ing] a nuclear explosive device."⁹ The sanctions prohibit, among other things, licenses for exports of goods on the U.S. Munitions List, foreign military financing, and the transfer of certain technology.¹⁰ In a presidential determination on September 22, Bush said those sanctions "would not be in the national security interests of the United States."¹¹ Although this waiver does not directly affect human rights protections, it loosens restrictions on military assistance to the two countries, opening the door to future transfers.¹²

Congress followed the president's lead by waiving other sanctions on Pakistan. Public Law 107-57, which Bush signed into law on October 29, suspends sanctions that the United States imposed on Pakistan under the Foreign Operations Appropriations Act after a military coup deposed its elected government in 1999. The act grants a waiver for fiscal year 2002, requiring only that the president give certain congressional committees five days notice before he promises any military assistance funds.¹³ With only five days notice to the relevant congressional committees, Bush can also extend the waiver through fiscal year 2003 if he finds that this "(A) would facilitate the transition to democratic rule in Pakistan; and (B) is important to United States efforts to respond to, deter, or prevent acts of international terrorism."¹⁴ In allowing this exception to its arms control policy, Congress relinquished part of its foreign military assistance oversight authority.

The State Department has also lifted sanctions as part of its post-September 11 foreign policy. On January 9, it announced the removal of arms sales restrictions imposed on Tajikistan in 1993. State Department spokesman Boucher said, "Tajikistan has been cooperating closely with the U.S. as a member of the international coalition against terrorism. We believe this cooperation and other changes in our relations merit removing Tajikistan from our proscribed countries list."¹⁵ Because of its instability in the early 1990s, Tajikistan had been included on a list in the International Traffic in Arms Regulations, which implement the Arms Export Control Act discussed above.¹⁶ The regulations prohibit the licensing or export of defense articles and services to countries on a list that changes according to current U.S. foreign policy.¹⁷ As discussed above, the war on terrorism has dominated this policy since September 11.

Expediting the Foreign Military Assistance Process

Both the executive and legislative branches have also worked to expedite the military assistance process since September 11. In addition to lifting sanctions on Pakistan, Public Law 107-57 facilitates military assistance around the world. It reduces the required notification deadlines for transfers of emergency drawdowns and excess defense articles by one half or more. The 1961 Foreign Assistance Act requires the president to notify Congress at least fifteen days in advance of any drawdown. The new act requires only five days notice if "the President determines it is important to United States efforts to respond to, deter, or prevent acts of international terrorism."¹⁸ The act similarly reduces the thirty-day notification requirement for EDA to fifteen days if the war against terrorism so requires.¹⁹ The shorter notification requirements give Congress, and therefore the public, less time to review and challenge any proposed transfers that have human rights or humanitarian law implications.

Meanwhile, the Defense Security Cooperation Agency (DSCA), the organization within the Department of Defense that handles foreign military sales, has established a "war room" to speed up approval of assistance. The DSCA's director, Air Force Lt. Gen. Tome Walters, said the agency formed an "Enduring Freedom Response Cell" to "fast track" requests from U.S. allies. "If you're an allied country, let's say Uzbekistan, and you need radios, we will do whatever we can to get the job done," Walters said on September 26.²⁰ At its Security Cooperation Conference the same week, the DSCA also announced ten reforms designed to facilitate the approval process.²¹ In the process of streamlining foreign military assistance, the United States must be careful not to reduce scrutiny of the human rights implications of proposed arms transfers.

A Measure To Increase Human Rights Protection: Uzbekistan

While the administration and Congress have acted in unison to lift restrictions on military assistance since September 11, Congress has taken the initiative to increase monitoring in at least one country-Uzbekistan, a major human rights abuser. In late October, Senator Paul Wellstone (Democrat, Minnesota) introduced an amendment to the Foreign Operations Appropriations Act that requires the State Department to submit to the relevant congressional committees two reports on military assistance to Uzbekistan. According to its final version, the provision requires one report four months after the bill's enactment and one six months after that. The reports must include a list of U.S. security aid given to Uzbekistan and describe in detail how Uzbek units used the U.S. defense articles, defense services, and financial assistance during that period.²² Wellstone told the Senate that while Uzbekistan is a key U.S. ally in the war on terrorism, it has a record of serious human rights abuses, including torture, illegal detention, and persecution of independent Muslims. He said, "We must ensure that anti-terrorism efforts are conducted in a manner that protects religious freedom and other human rights, and we must carefully monitor our cooperation with Uzbekistan to ensure that protection."²³ The Senate passed the amendment unanimously on October 24, and it appeared in the Conference Report accompanying the final Foreign Operations Appropriations Act in December.²⁴ The provision demonstrates the possibility of military assistance oversight even under extraordinary circumstances.

⁴ Foreign Assistance Act of 1961, U.S. Code, vol. 22, secs. 2151-2430(i) (1994).

⁵ Ibid., sec. 2304.

⁶ Arms Export Control Act of 1976, U.S. Code, vol. 22, secs. 2751-99(aa-2) (1994).

⁷ U.S. Statutes at Large 114 (2001): 1900A-46.

⁸ Ibid.: 694.

⁹ Arms Export Control Act of 1976, sec. 102(b)(1)(B).

¹⁰ Ibid., sec. 102(b)(2)(B, C, G). The U.S. Munitions List is the list of defense articles and services the export and import of which the president may regulate under the Arms Export Control Act.

¹¹ Federal Register, vol. 66, p. 50,095, October 2, 2001.

¹² For more information on Pakistan and India, see footnotes 63 and 64 and accompanying text.

¹³ Public Law 107-57, U.S. Statutes at Large 115 (2001): 403. The U.S. fiscal year, a twelve-month period used for budgeting purposes, runs from October 1 to September 30.

¹⁴ Ibid.

¹⁵ Richard Boucher, U.S. Department of State Daily Press Briefing transcript, January 9, 2002.

¹⁶ "Tajik Ministry Welcomes US Decision To Lift Ban from Arms Sale to Tajikistan," Asia-Pulse (Tajikistan), January 11, 2002.

¹⁷ U.S. Code of Federal Regulations, vol. 22, pt. 126 (2001).

¹⁸ Public Law 107-57, U.S. Statutes at Large 115 (2001): 404.

¹⁹ Ibid.

²⁰ "DSCA Forms `War Room' To Speed Allied Arms Requests: Unveils 10 Reforms," Defense Daily International, September 28, 2001. "Enduring Freedom" is the name given by the U.S. government to its campaign in Afghanistan.

²¹ These reforms include better use of technology to speed up the processing of requests, allowing states to post commercial bonds rather than cash for the amount of their purchase, and more customer participation in the contract process. Sharon Weinberger, "DOD Promises Faster Foreign Military Sales: Ally Still Doubtful," Aerospace Daily (Washington, D.C.), September 27, 2001; "DSCA Forms `War Room.'"

²² Conference Report 107-345, 107th Congress, 1st session, December 19, 2001, p. 97.

²³ Foreign Operations Appropriations Act, Senate Amendment No. 1937, Congressional Record, 107th Congress, 1st session, October 24, 2001, vol. 47, p. S10,915.

²⁴ Conference Report 107-345, p. 97. Although Wellstone's provision was not included in the final version of the Foreign Operations Appropriations Act, which became law in November, the Conference Report directs the Department of State to produce both of the proposed reports on Uzbekistan. The Conference Report, which accompanies and explains the law, was produced by the conference committee that ironed out differences between House and Senate versions of the bill.