topicality supplement

acknowledgments

This file was brought to you by:

Matty Heublein

Kristen Lu

Rishi Mukherjee

Emma Schroeder

William Soper

Michele Tang

If you have questions or concerns – please email Jordan Foley at: jordan.michael.foley@gmail.com

fyi – fms process

From the DISCS “Green Book”: https://www.discs.dsca.mil/documents/greenbook/05_Chapter.pdf

fyi – dcs Process

From David Heidt’s Topic Lecture: https://sites.google.com/site/umichdebate2019/lectures

1nc’s

1nc sole purposeInterpretation – Topical plan texts must exclusively reduce arms sales and specify the means of dissociation through the Foreign Military Sales and the Direct Commercial Sales process outlined in the Arms Export Control Act (AECA) and the Security Assistance Management Manual (SAMM).Stephen Cohen (Associate Professor of Law at Georgetown Unvieristy, Former Deputy Assistant Secretary of State for Human Rights and Security Assistance (1978-1980)) 1982 “CONDITIONING U.S. SECURITY ASSISTANCE ON HUMAN RIGHTS PRACTICES” 76 Am. J. Int’l L. 246 (1982) https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2605&context=facpub

IV. CONCLUSIONS

What are the lessons to be drawn for implementation by the Executive when Congress attempts to legislate foreign policy? The history of section 502B is a case study of executive frustration of congressionally mandated foreign policy and underlines the need, particularly with this kind of legislation, for clearer directives , less discretion, and more assiduous congressional oversight. While these observations emerge from experience in the human rights area, they are relevant to other congressional attempts to influence the Executive's conduct of foreign policy . They are especially apt when congressional objectives may require decisions that displease particular governments and that will therefore be resisted by the Foreign Service bureaucracy whose paramount interest is maintaining cordial relations. For example, conclusions about the effectiveness of legislation conditioning security assistance on human rights practices are likely to be highly relevant to legislation conditioning nuclear exports on practices with respect to nuclear proliferation.

Congress has the most decisive impact when its directives allow the Executive no discretion at all , as in the country-specific legislation stating precisely which governments are to be denied military aid and arms sales on human rights grounds. On the other hand, when ever the statute permits any exercise of discretion at all , the career Foreign Service is likely to use it to attempt to thwart congressional objectives .

Precision in a statute, of course, is a matter of degree and some provisions allow considerably more discretion than others. No one should be surprised at the bureaucracy's lack of enthusiasm for implementing a vaguely worded general directive . Given its "clientist" impulse, the Foreign Service can be expected, for example, to ignore a statutory directive that the United States "disassociate itself from governments that violate internationally recognized human rights." In such a provision, the means of disassociation are unspecified and left to the diplomat to choose . Disassociation, moreover, is set forth as only one foreign policy goal, which presumably may give way to other objectives when, in the judgment of the bureaucracy, the national interest so requires.

But compared to such a hypothetical statute, section 502B is a model of precision . The means for achieving disassociation are particularized both by the clear, unambiguous definition of security assistance and by the requirement that it be denied in specific cases . The disassociation objective is ranked relative to other foreign policy goals, and it is to be paramount whenever the other government "engages in a consistent pattern of gross violations" and "extraordinary circumstances" are absent. While both these phrases do have considerable elasticity, it should also be clear that the arbitrary

imprisonment, summary execution, and torture of thousands of people amount to a "consistent pattern" and that a mere desire for cordial relations without more is not "extraordinary" by any reasonable standard. Yet the Foreign Service consistently argued the contrary and resisted attempts to apply section 502B to deny military aid or arms sales in nearly every instance when its application was urged. In other words, giving the Foreign Service any discretion at all is to invite its abuse.

There are, perhaps, some drawbacks to statutes that deny all discretion, such as the country-specific legislation. Once such a provision is enacted, the Executive lacks the flexibility to respond quickly to changed conditions. 31 While Congress has a legitimate role to play in setting basic foreign policy goals, it may be less well equipped to make day-to-day decisions about how best to fulfill those goals in specific cases. Its members, by and large, are not specialists in foreign affairs, and they generally lack the detailed knowledge and expertise required to make careful assessments of human rights practices and United States interests or to balance the benefits and costs of providing military aid or selling arms to a particular government.132

For these reasons, a general rule that sets forth basic goals may be preferable to country-specific legislation. Yet the history of section 502B suggests that the creation or tightening of a general rule will produce, by itself, little change in executive behavior. Special implementing mechanisms are required if a substantive rule is to have a direct influence on decisions . Because the career bureaucracy can be expected to abuse the discretion allowed by a general rule, a countervailing center of bureaucratic influence is essential to implementation.

When Congress does provide an implementing mechanism, implementation will still be highly dependent on the attitudes of high political officials. If they are hostile, even a general rule written with a high degree of precision will probably have little impact on executive decisions. The career Foreign Service will exert no influence on political appointees to implement the law, and the Bureau of Human Rights can be effectively neutralized. The Assistant Secretary is a presidential appointee, and a hostile administration can either select someone to fill the position who will not push for implementation or simply leave the post vacant. In such a case, country-specific legislation is the only effective means for Congress directly to influence specific decisions on military aid and arms sales .

Even when a hostile administration disregards section 502B, the Statute may serve as an affirmation by Congress that disassociation from repressive governments is a desirable goal of U.S. foreign policy. It reinforces the idea that military ties with such governments can impose considerable costs and should not be pursued unless they are the only available means of securing especially important national interests. Its existence legitimates efforts by Congress to enact legislation that prohibits military aid and arms sales to specific countries. It may also focus the attention of journalists, scholars, and the interested public on executive decisions that would otherwise escape scrutiny.

Violation – The affirmative does not specify [DCS and/or FMS, countries/weapon systems/means by which reduction occurs].

Precision – Legal clarity is a prerequisite to an informed discussion about arms sales. Understanding the complexities of the bureacracy is necessary for topic educationSusan Waltz (professor of public policy at the Ford School at the University of Michigan) June 2018 “ITAR Amendment - Categories I II, and III/EAR Amendment - RIN 0694-AF47”, letter to the Office of Defense Trade Controls Policy, Department of State and Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, https://www.forumarmstrade.org/uploads/1/9/0/8/19082495/comment_on_regs_6-30-18.pdf

By way of a few introductory remarks, I am familiar with the complexities of US arms export laws and policy, as well as the regulatory framework. There is a legitimate need for periodic updates of the USML and—in view of the labyrinth of entangled laws, regulations, and agencies involved in the current system —I am supportive of the reform initiative. I am generally more concerned about keeping weapons out of the hands of those who would misuse them than in making them easier to procure, but that end is not at odds with the objective of putting in place a single control list and a single administrative agency. The

reform effort has not progressed to that point, however, and I am wary about these proposed regulatory changes as an interim step. I will also add that I have been following the export control reform project since it was announced in 2009 and this is the only time I have felt the need to express concerns about the proposed changes. That is largely due to the particular, complete and recognizable, weapons that are being considered for change.

1. I urge you to delay the effective date of the proposed changes until the Government Accounting Office or the Library of Congress has publicly reported to the Congress their impact on numerous statutes referring to “defense articles.”

If enacted, the changes would have implications for several provisions of law. From my reading of both sets of proposed regulations, I am not

reassured that the implications have been fully considered. The USML is formally defined in the AECA (22 USC 2778) as a definitive list of defense articles , 1 and from a quick search of US statutes the term “defense article” appears in some 45 sections, 2 in many instances (but not always) explicitly linked to the USML. In addition, several provisions of the AECA itself are explicitly linked to an item’s presence on the USML (without necessarily referring to “defense articles”). On a separate statutory track , the Foreign Assistance Act was recently amended to include CCL 600 series items as defense articles, along with all items contained on the USML [22 USC 2304.

(d)(2)(C)], but the legislation did not anticipate the new 500 series so there is likely a gap there with regards to Congressional intentions. To complicate things further, the US Munitions Import List ( USMIL) makes liberal use of the term “defense article,” defined as articles on the USMIL –which currently include the

same items that are slated to lose the “defense article” designation that extends from inclusion on the USML – so that items designated as defense articles on the USMIL will not be considered defense articles for purposes of export.3

It is very challenging to sort out the tangle . Some of the instances where terms and definitions are at variance may not prove significant, but others may have far-reaching implications . Due to the disparate definitions and linkages , the proposal to remove specified firearms from the USML raises some important questions about the continuing applicability of provisions of law that refer to “defense articles,” a term that currently encompasses such firearms. In numerous situations the current statutory treatment of nonautomatic firearms would be altered – or at least become ambiguous—as a result simply of moving these weapons from Category I of the USML to the 500-series on CCL. Statutory provisions that could be affected by the proposed change range from Export-Import Bank financing of defense article sales to human rights conditionality on security assistance, to the provisions for third-party transfer of grantsupplied defense articles, and various reports to Congress. (See

references in the footnote below.4 ) In some cases, the law in question is not directly linked to arms exports, but the relevant statute refers to defense articles and links the definition to items on the USML . In this way, removing specified firearms from the USML is likely to have a host of unintended and unanticipated repercussions.

Further, if semi-automatic weapons and other non-automatic firearms are removed from the USML it will impact the ability of law enforcement to charge weapons traffickers with violating the AECA as was done in several of the cases cited in a recent report from the Department of Justice on export enforcement.5

As Acting Assistant Secretary for Political-Military Affairs Tina Kaidanow explained to the House Foreign Affairs Committee last June,6 the US arms export architecture is very complex and involves what her predecessors have described as “cradle to grave” oversight of exported US defense articles. Removing that designation defense article from weapons that are not fully automatic has the effect of detaching them from the US Munitions List and the regulatory framework built around it: there may well be significant unintended consequences.

In the event that consideration of the proposals is not delayed, I would recommend several other changes to the proposed ITAR and EAR revisions.

2. Retain existing USML I(a) and (d) unchanged; retain the existing coverage of USML II(a) unchanged; delete proposed 0A501.a and .b; and limit proposed 0A502 to renumbering existing 0A984. My concern here is based on principle and definition.

Several of the weapons that would be moved to CCL are military-style weapons that are either used in battlefield situations or are substantially comparable to weapons as used in battlefield situations – including semi-automatic assault rifles and bolt-action sniper rifles. All of USML I(a), I(d), and II(a) are currently designated “significant military equipment” due to “their capacity for substantial military utility or capability,” per the ITAR definition.7 The prevalence of armed extremists and insurgents who depend on weapons currently included in USML Categories I and II makes the military utility or capability of these weapons as relevant as ever. Due to their size and long shelf life, firearms are easily diverted and resold on black markets around the world. The Department of Justice’s January 2018 summary of major US export enforcement cases noted above includes recent smuggling of semi-automatic assault rifles (and other firearms) to Dominican Republic, the Gambia, Russia via Latvia, Thailand and other destinations. In addition, the report documents the case of two men in Georgia attempting to export firearms to a range of international on the dark net, and another similar case from Kansas.8

While the US military may not derive great advantage from most of these weapons, they still have the military utility and capability of threatening the lives and welfare of many people around the world. It is in the interest of the US and American citizens to keep the tightest control on them. Indeed, it is for that very reason that the same weapons being proposed for removal from the US Munitions List are expected to remain on the US Munitions Import List, where their entry into the US will remain tightly controlled. It is also for that reason that a growing number of states are imposing limitations on the retail availability of these weapons and many retailers are voluntarily removing them from their shelves. They should remain where they are, on the USML.

3. Before proposed regulatory changes are adopted, an opinion should be obtained from the Department of Justice concerning the legality of

applying ITAR brokering restrictions to exports of firearms transferred from the USML to the CCL. Furthermore, Congress and the public should be informed as to how the proposed arrangements will address the risk of diversion.

There are several reasons to be concerned about the proposed rules pertaining to brokering. From their origin in the 1930s, a major intent of efforts to regulate arms exports has been to curtail illicit and undesirable trafficking in weapons. In the 1980s and 1990s, illicit flows of small arms flooded international markets, with calamitous effects in every region of the world. The rate of flow may have slowed since the 1990s, but as the 2018 Justice Department report attests, the efforts to supply contraband firearms are very much alive in our own time. From a global perspective, brokering laws are considered a weak link in the regulatory apparatus, to the extent that in the 1990s there was some talk of negotiating an international treaty focused entirely on arms brokering. Provisions written into US law around that time were considered some of the strongest in the world. With the transfer of specified semi-automatic and nonautomatic weapons to CCL, the brokering laws would no longer be applied to these weapons (or would be applied only in a much-weakened version) and they would not be available to law enforcement for prosecution purposes.

My specific concerns with the proposal to apply existing AECA/ITAR brokering rules to items intended for transfer to the CCL are twofold, related to the dubious statutory underpinnings of the proposed rule change and to its practical implications.

(a) The first concern is a matter of statutory coherence and proper statutory authority. The brokering clauses of the AECA require commercial brokers involved in the transfer of defense articles to register with the State Department and apply for their

transactions to be licensed (22 USC 2778).9 The AECA brokering provisions are explicitly linked to defense articles on the USML (and by implication, ITAR). Because the proposed changes to ITAR and CCL would remove specified non-automatic and semiautomatic firearms from the USML, on the face of it, it would seem that commercial brokers of these items would be released from ITAR registration and brokering requirements. To prevent this outcome, the State Department proposes a patch, by asserting that the AECA brokering provisions will also apply to the US Munitions Import List (which, as noted above, will continue to include the items that—for export purpose—are deemed no longer to warrant control under the USML). The intended effect is that brokers wanting to export items included on

the list of items controlled as defense articles for import (but not for export) will be subject to the rules pertaining to the export of such items. The logic is convoluted at best, and it raises questions about the statutory grounding for requiring brokers who are exporting items “no longer

warranting control under USML” to register with the State Department and comply with related ITAR requirements. Given the complexity of the issue and the risks associated with brokering activities, it would seem advisable and prudent to seek a legal opinion within the Executive Branch to ensure that the provisions of the AECA pertaining to brokers—including the registration requirement-- can be applied robustly to all involved in the wide range of brokering activities associated with the export of items on the US Munitions Import List.10 Such a legal opinion should be obtained and considered before the regulatory changes are adopted .

(b) The second issue about brokering rules relates to the practical effects of the numerous proposed changes to ITAR section 129. It is hard to imagine, in the first place, the steps by which the licensing of a transaction will be handled by Commerce and any brokering aspects (including completion of information required by 22 CFR 129.6) will be handled by State. It boggles the mind to consider how this might actually amount to a time-saving simplification of rules. I am primarily concerned about the proposed amendment 129.2(b)(2)(vii), however, which appears to negate the controls on brokering for transactions subject to EAR and open a significant loophole for unscrupulous brokers. If I have understood the proposed changes to Section 129.2 correctly, if a Michigan-based retail sports outlet licensed to sell firearms in the US wanted to sell, say, AR-15 semi-automatic rifles to clients in another country, then so long as the Michigan retailer could secure approval via the BIS licensing process, the various parties involved in shipment, financing, and possibly transshipment would be exempt from any registration and approval requirements. Nor would they necessarily be known to licensing and enforcement agents based in the Commerce Department. What in this

scenario would deter an unknown and independent handler from diverting the weapons to unauthorized end-users? I would like to assume that government officials in the State and Commerce Departments have thought through the implications of the proposed rules as they might be bent for nefarious purpose as well as their service for industry cost and convenience, but the published rules do not provide assurance in that regard. More clarification is needed about how the brokering regulations will be applied, how the inter-agency process will be managed, and the extent to which the proposed arrangements for registering and licensing brokers involved in acquiring, financing and transporting exported firearms will address the risk of diversion to non-authorized end-users. One effect of transferring non-automatic firearms from the USML to the CCL is to remove them from the remit of the State Department’s Blue Lantern program, which otherwise might be engaged to make post-shipment checks. It is not clear whether Commerce has a comparable program or what resources it will assign to monitoring the commerce in semi-automatic firearms.

Ground – The neg loses access to process CPs that are the heart of topic-specific education. Only our interpretation structurally incentivizes students to learn about the process of reducing arms sales instead of recycling outdated backfiles. Normal means-based strategies are unpredictable and allow the aff to shift the goal posts.

Extra-T – As written, the plan text, includes reductions in non-FMS and non-DCS of arms. Linguistic slippage allows systematic distortion of the lit base – results in implicit mechanism expansion. Disincentivizes in-depth research and justifies unpredictable advantages. Vote neg to affirm strict norms to deter lazy

1nc reduce ≠ courts

Interpretation – arms sales are solely driven by statutes, regulations, and policies executed by the Department of Defense and Department of StateTina Kaidanow (Former Acting Assistant Secretary, Bureau of Political-Military Affairs at the Department of State) June 2017 “Foreign Military Sales: Process and Policy” Testimony to Congress https://www.state.gov/foreign-military-sales-process-and-policy/

Overall Framework

Our approach to arms sales is driven by statute, regulations, and policy .

The key statutes through which we conduct arms transfers are the Foreign Assistance Act of 1961, as amended (FAA), and the

Arms Export Control Act, as amended (AECA).

• Pursuant to section 622(c) of the FAA, the Secretary of State is responsible for the continuous supervision and general direction of military assistance and military education and training programs, including whether there shall be such assistance for a country. It is through this authority that the Department of State approves the transfer of Excess Defense Articles (EDA) under section 516 of the FAA. Such transfers must be consistent with section 502 of the FAA, which provides that defense articles and defense services may be furnished to a foreign government only for specific purposes, including internal security, legitimate self-defense, and to permit the recipient country to participate in regional or collective arrangements or measures consistent with the Charter of the United Nations.

• Section 1 of the AECA authorizes “sales by the United States Government to friendly countries having sufficient wealth to maintain and equip their own military forces at adequate strength, or to assume progressively larger shares of the costs thereof, without undue burden to their economies, in accordance with the restraints and control measures specified herein and in furtherance of the security objectives of the United States and of the purposes and principles of the United Nations Charter.” Pursuant to section 2 of the AECA, “under the direction of the President, the Secretary of State (taking into account other United States activities abroad, such as military assistance, economic assistance, and food for peace program) shall be responsible for the continuous supervision and general direction of sales, leases, financing, cooperative projects, and exports under this Act, including, but not limited to, determining – (1) whether there will be a sale to or financing for a country and the amount thereof; (2) whether there will be a lease to a country; (3) whether there will be a cooperative project and the scope thereof; and (4) whether there will be delivery or other performance under the sale, lease, cooperative project, or export, to the end that sales, financing, leases, cooperative projects, and exports will be integrated with other United States activities and to the end that the foreign policy of the United States would be best served thereby.” Section 4 of the AECA provides the purposes for which defense articles and defense services may be sold or leased, which include internal security and legitimate self-defense.

• The AECA also authorizes the President, in “furtherance of world peace and the security and foreign policy of the United States” to “control the import and the export of defense articles and defense services.” The AECA requires that decisions on issuing export licenses for defense articles and defense services “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.”

•There are also a number of restrictions that apply to arms transfers in the AECA, FAA, other statutes, or that apply through regulation or United Nations sanctions.

• We are further bound by our commitments to a number of international export control regimes, such as the Missile Technology Control Regime and the Wassenaar Arrangement.

Under the AECA, there are three main authorities through which the U nited S tates can provide defense articles or services to another country : government-to-government Foreign Military Sales ( FMS) ; licensed exports of direct commercial sales ( DCS ); and the lease of defense articles. We are also authorized to provide EDA under the FAA and to approve third-party transfer requests under both the AECA and the FAA.

A variety of regulations apply to these programs. On the FMS side, government-to-government sales are implemented by the Department of Defense , and the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement apply to all programs. Admiral Rixey will address this in more detail. On

the DCS side, my Bureau manages the International Traffic in Arms Regulations (ITAR), which implements part of Section 38 of the AECA, authorizing the President to control the export, temporary import, and brokering of defense articles and defense services. Permanent imports of defense articles pursuant to section 38 of the AECA are regulated by the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives.

Courts can’t reduce arms sales — only declare a statute or regulation unenforcableSperling and Treanor 1993 (Gene — Director of the National Economic Council under both President Obama (2011-2014) and President Clinton (1997-2001). He is the only person to serve in that capacity for two Presidents. He also has served as Deputy Director of the National Economic Council (1993-1996) and Counselor to the Secretary of Treasury and member of Auto Task Force (2009-2010), William — Executive Vice President and Dean of the Law Center; Paul Regis Dean Leadership Chair; Professor of Law, B.A., Yale; J.D., Yale; Ph.D., Harvard, Georgetown Law Review, “Prospective Overruling and the Revival of ‘Unconstitutional' Statutes,” 93 Colum. L. Rev. 1902-1955 (1993), Pgs 1912-1913, https://pdfs.semanticscholar.org/b5b5/ecac9f4fa68d0d271fcc59b7b87396bcde2f.pdf) Heublein

Unlike the Supreme Court, several state courts have explicitly addressed the revival issue. The relevant state court cases have concerned the specific issue of whether a statute that has been held unconstitutional is revived when the invalidating decision is overturned.42 With one

exception, they have concluded that such statutes are immediately enforceable. The most noted instance in which the revival issue was resolved by a court involved the District of Columbia minimum wage statute pronounced unconstitutional in Adkins. After the Court reversed Adkins in West Coast Hotel, President Roosevelt asked Attorney General Homer Cummings for an opinion on the status of

the District of Columbia's statute. The Attorney General responded, The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute, and that notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books; and that if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective.43 Enforcement of the statute followed without congressional action.44 When this enforcement was challenged, the Municipal Court of Appeals for the District of Columbia injawish v. Morlet 45 held that the decision in West Coast Hotel had had the effect of making the statute enforceable. The court observed that previous opinions addressing the revival issue proceed on the principle

that a statute declared unconstitutional is void in the sense that it is inoperative or unenforceable , but not void in the sense that it is repealed or abolished; that so long as the decision stands the statute is dormant but not dead; and that if the decision is reversed the statute is valid from its first effective date

At best, the aff fiats a legal attempt to prevent future sales, not tangibly reduce current salesPOPATTANACHAI, 18 – PhD dissertation at Nottingham Trent University (NAPORN, “REGIONAL COOPERATION ADDRESSING MARINE POLLUTION FROM LAND-BASED ACTIVITIES: AN INTERPRETATION OF ARTICLE 207 OF THE LAW OF THE SEA CONVENTION FOCUSING ON MONITORING, ASSESSEMENT, AND SURVEILLANCE OF THE POLLUTION” http://irep.ntu.ac.uk/id/eprint/33374/1/Naporn%20Popattanachai%202018.pdf

For the second question, the provision demonstrates that the goal of adoption of such laws and regulations must be to ‘prevent, reduce, and control’ MPLA. In so doing, the LOSC obliges States to ‘taking into account internationally agreed rules, standards, and recommended practices and procedures’.480 Having considered the ordinary meanings of the term ‘prevent, reduce, and control’, ‘prevent’ means ‘to stop something from happening or someone from doing something .’481 The word ‘reduce’ means ‘to make something smaller in size, amount, degree, importance etc.’482 and the word ‘control’ means ‘to order, limit, or rule something or someone's actions or behaviour.’ 483 From the meanings, the term ‘prevent’ suggests an action to stop the future occurrence of something, whereas the terms ‘reduce’ and ‘control’, noting their difference, point to an action dealing with something that

has already happened and continues to occur, but needs to be made smaller, limited or regulated. Also, control also applies to future pollution in the sense that it limits the future pollution to be created or emitted not to exceed the specified level. Therefore, the preliminary reading of these terms suggests that laws and regulations adopted to deal with MPLA must yield the result that conforms with these terms. In so doing, the adoption of laws and regulations to prevent, reduce, and control MPLA can be done by legislating primary or secondary regulations with the use of various legal techniques and procedures and are underpinned by some rules and principles of international law discussed in the previous chapter. These legal techniques and procedures can be used to achieve the prevention, reduction and control of MPLA depending on the design and use of them. Noting that the measures outlined below are not exhaustive and not exclusively limited to implement any specific obligation, these are typical legal techniques and procedures used to prevent, reduce, and control pollution and therefore protect the environment. They can be categorised into two groups, that is, (1) substantive and (2) procedural legal techniques and measures. They can be discussed hereunder.

Violation- the aff fiats the federal judiciary.

Vote Neg:

Ground – All negative offense is predicated on a reduction in arm sales, only fiating courts opens the door to affs that don’t reduce sales but claim perception-based spillover advantages based on legal signal rather than the reduction in sales.

Limits – Expanding aff fiat to the federal judiciary generates an unmanagable number of cases by adding unpredictable procedural affirmative mechanisms to access advantages. That short-circuits education and makes adequate negative preparation impossible.

standards/impacts

precision good – general

Precision is prerequisite to educationResnick 1 [Evan Resnick, Journal of International Affairs, 0022197X, Spring 2001, Vol. 54, Issue 2, “Defining Engagement”]

In matters of national security, establishing a clear definition of terms is a precondition for effective policymaking. Decisionmakers who invoke critical terms in an erratic, ad hoc fashion risk alienating their constituencies. They also risk exacerbating misperceptions and hostility among those the policies target. Scholars who commit the same error undercut their ability to conduct valuable empirical research. Hence, if scholars and policymakers fail rigorously to define "engagement," they undermine the ability to build an effective foreign policy.

Precise wording in legislation is essential to preserve the intent of the planTuratsinze 12 (Elias Turatsinze 2012 https://sas-space.sas.ac.uk/4711/1/Elias_Turatsinze_LLM_ALS_Dissertation.pdf)

Precision is traditionally viewed as the main goal of common law drafters who make the greatest effort to “say all, to define all”: to leave nothing to the imagination: never to presume upon the reader’s intelligence.31 In legislative drafting, precision requires choosing correct words and maintaining their grammatical sense. This avoids uncertainty in the meaning of words or sentences, which in turn affects construction of statutes. In United Kingdom, this point was succinctly expressed by Lord Bridge of Harwich as follows: “The courts’ traditional approach to construction, giving primacy to the ordinary, grammatical meaning of statutory language, is reflected in the parliamentary draftsman’s technique of using language with the at most precision to express the legislative intent of his political masters and it remains the golden rule of constructions that a statute means exactly what it says and does not mean what it does not say.”32 Bridge’s assertion indicates that courts are primarily concerned with statutory words before resorting to other cannons of construction. Thus, whenever, a court seeks to understand the legislative intent, the first thing it does is to read the law. The court proceeds to other methods of construction, only if the wording of the law does not permit to understand the legislative intent. The drafter should therefore ensure precision in expressing the legislative intent, so as to minimize the possibility of applying other methods of construction which at times may disfavour realisation of the legislator’s objective.

Precision matters in contracts — different interpretations could muddle intent and cause disputesNicholson 11 (John, Strategic negotiator (former transactional attorney) who focuses on structuring and negotiating large outsourcing transactions (both on and offshore) including IT outsourcing and various BPOs (including HRO, Facilities Management, Procurement, Finance and Accounting), large systems development and implementations. Interested in privacy and information security law. Frequent speaker on outsourcing, privacy and security issues. Before becoming a lawyer, was the acting IT director for a mid-size company prior to hiring the CIO and project manager for the company's Oracle Financials implementation; Sourcing Speak, “What Does That Mean? The Importance of Precise

Language In Sourcing Contracts,” 3/29/11, https://www.sourcingspeak.com/what-does-that-mean-the-importance-of-precise-language-in-sourcing-contracts/) Heublein

The truth is, if a contract is drafted precisely, conversations like that shouldn’t happen because the term “photocopier”

would be defined precisely in a way that both sides had agreed on (indeed there would be a defined term in the contract). This is especially important in a sourcing contract where the type and number of “photocopiers” (and the

number and type of copies or images produced by those “photocopiers”) could form the basis for the pricing of the deal. Later in that same deposition, the Deponent revealed that he referred to those devices as “Xerox” machines and the process of making a

copy “Xeroxing,” regardless of whether the machine involved was actually manufactured by Xerox. If the contract were prepared

using this terminology without the benefit of a precise definition of “photocopiers” (including, for example, whether one or

more manufacturers’ models were intended), it’s possible that someone attempting to interpret the contract might consider only “Xerox” machines as being in scope. Later on, if Fuji or Canon machines were discovered in the customer’s environment, a change order might be required for the service provider to support them (which might include an associated change in pricing and service levels). Among other things, the job of the lawyer is to make sure that the intentions of the parties are captured (and clearly stated) in the

contract. So, for example, someone who was not involved in the deal should understand the contract to mean the same thing as the people who entered into it in the first place . Although it may, at times, seem like a deliberate focus on terms such as these slows down the process, the upfront investment to clearly define the

terms associated with scope, pricing and service levels can decrease the likelihood of disputes (or unintended changes) down the

road – making the relationship more likely to be successful.

precision good – arms salesPrecision is key in arms sales legislationStephen B. Cohen (Associate Professor of Law at Georgetown Unvieristy, Former Deputy Assistant Secretary of State for Human Rights and Security Assistance (1978-1980) 1982 “Conditioning U.S. Security Assistance on Human Rights Practices” https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2605&context=facpub)

Congress has the most decisive impact when its directives allow the Executive no discretion at all, as in the country-specific legislation stating precisely which governments are to be denied military aid and arms sales on human rights grounds. On the other hand, whenever the statute permits any exercise of discretion at all, the career Foreign Service is likely to use it to attempt to thwart congressional objectives. Precision in a statute, of course, is a matter of degree and some provisions allow considerably more discretion than others. No one should be surprised at the bureaucracy's lack of enthusiasm for implementing a vaguely worded general directive. Given its "clientist" impulse, the Foreign Service can be expected, for example, to ignore a statutory directive that the United States "disassociate itself from governments that violate internationally recognized human rights." In such a provision, the means of disassociation are unspecified and left to the diplomat to choose. Disassociation, moreover, is set forth as only one foreign policy goal, which presumably may give way to other objectives when, in the judgment of the bureaucracy, the national interest so requires. But compared to such a hypothetical statute, section 502B is a model of precision. The means for achieving disassociation are particularized both by the clear, unambiguous definition of security assistance and by the requirement that it be denied in specific cases. The disassociation objective is ranked relative to other foreign policy goals, and it is to be paramount whenever the other government "engages in a consistent pattern of gross violations" and "extraordinary circumstances" are absent. While both these phrases do have considerable elasticity, it should also be clear that the arbitrary imprisonment, summary execution, and torture of thousands of people amount to a "consistent pattern" and that a mere desire for cordial relations without more is not "extraordinary" by any reasonable standard. Yet the Foreign Service consistently argued the contrary and resisted attempts to apply section 502B to deny military aid or arms sales in nearly every instance when its application was urged. In other words, giving the Foreign Service any discretion at all is to invite its abuse

Precise legal definitions are necessary for courts to create and enforce lawsSanchez 19 (Oscar Arias Sanchez, Former President of Costa Rica, Received the Nobel Peace Prize in 1987 for his efforts to end the Central American Crisis, Received a Doctoral Degree in Political Science from the London School of Economics. 2019 http://blogs.shu.edu/diplomacy/files/archives/sanchez.pdf)

The United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (July 2001) provides the international community with an excellent opportunity to reflect on all sorts of arms transfers in light of today’s realities. The line between licit and illicit arms deals is often so thin as to be invisible. We must begin to ask ourselves what is more important: legalistic definitions or principles? When civilians are massacred by a paramilitary member, rebel group, or army in a civil war, does it matter if the weapons used were acquired legally? When a woman is murdered by her ex-soldier husband with his service weapon, does it matter whether he had a permit to own it? In principle, I am

sure we would all agree that the answer is “No.” Yet, in the real world, we do need legal definitions, as the power of judgment is vested in our courts, which depend on those definitions, and their interpretations, to do the business of justice. How , then, shall we define legal transfers of weapons ? Which transfers are illicit? These questions are so far without a convincing answer from the community of states embodied in the United Nations. The July conference should be taken as an opportunity to explore these questions and build consensus around clear and definitive answers. In particular, I would like to see the UN member states seriously consider the Framework Convention on International Arms Transfers described in this article. I believe it presents a potential solution to the problem of definitions and, more importantly, a viable way of getting the “legal” arms trade under control. Any death from gun violence is one too many. There is no time to lose

Robust and precise weapons laws are essential Stohl 17 (Rachel Stohl AIP 11/15/17

https://aip.scitation.org/doi/pdf/10.1063/1.5009220)

Elements of a National Arms Control System • Arms Trade Legislation: Legal instruments, in the form of laws or decrees, serve to provide government authorities the legal basis to register and license weapons producers, brokers, traders, transporters, and owners – as well as to authorize individual weapons transaction. • Licensing Procedures: Licensing procedures work to control the export, import, re-export, transit, and transshipment of weapons into, out of, and through national territory, including brokering activities. • Export Criteria and Control Lists: Arms control lists detail those weapons and weapons systems that are subject to licensing procedures and must be authorized by government authorities. Lists of controlled goods also include lists of proscribed destinations, such as those subject to an arms embargo. Export criteria based on international norms and standards help to determine whether a weapons transfer should be authorized. End-user criteria such as respect for human rights, involvement in armed conflict, involvement in terrorist activities, and level of democratic development are often considered when making licensing decisions.

Legal precision and specificity in arms sales law is key to justify and enforce reductionsStephen Cohen (Associate Professor of Law at Georgetown Unvieristy, Former Deputy Assistant Secretary of State for Human Rights and Security Assistance (1978-1980)) 1982 “CONDITIONING U.S. SECURITY ASSISTANCE ON HUMAN RIGHTS PRACTICES” 76 Am. J. Int’l L. 246 (1982) https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2605&context=facpub

The substantive standard of section 502B differed from that of section 32 in three important respects. First, the statute used the term "security assistance" (rather than "military assistance"), and this new term was defined to include sales of arms for cash as well as military aid.28 Second, it changed the category of relevant human rights violations from "internment or imprisonment" for "political purposes" to "torture," "prolonged detention without charges," and other inhuman treatment. 29 By replacing a status that lacked a precise definition with specific practices, Congress appears to have been responding directly to Ingersoll's complaint that the violations under section 32 had been too difficult to define objectively. Third, it attempted to recognize the need for executive flexibility by providing an "extraordinary circumstances" exception (but at the same time required the President to report to Congress when exceptions were to be made).

Specific definitions clarify legal and program requirementsJones Et al. 06 (Seth G. Jones, Olga Oliker, Peter Chalk, C. Christine Fair, Rollie Lal, James Dobbins. Writing for the RAND Corporation. 2006. https://apps.dtic.mil/dtic/tr/fulltext/u2/a470461.pdf)

Various agencies carry out their own vetting procedures, and while some of them adopt a “check-the-box” mentality, others are thorough and based on U.S. officials’ desire to ensure that the foreign security forces they train and work with can be trusted—and that their assistance will not be misused. But the confusion regarding legal requirements and specific program situations remains , and this is likely to persist for the foreseeable future. Our analysis suggests that the U.S. government needs to improve its vetting practices by making them more consistent across programs and agencies and standardizing them across different types of assistance. Congress can play a critical role by establishing uniform guidelines and providing further definition regarding what criteria executive branch agencies should use in identifying and vetting both units and individuals (whose culpability can, after all, tar organizations of various sizes).

precision bad – arms salesUsing legally precise definitions is bad - they justify hierarchical and inefficient agency operation while ignoring the nature of actual defense agreements Ward and Galvin 08 William E. Ward, former United States Army four-star general who served as Commander, U.S. Africa Command, former Deputy Commander, U.S. European Command, served as a special assistant to the Army’s vice chief of staff, current rank of lieutenant general, Dr. Thomas P. Galvin, assistant professor of leadership studies, former colonel, holds master’s degrees in strategic studies from the U.S. Army War College, Carlisle, PA, and artificial intelligence from the Naval Postgraduate School in Monterey, CA; and a doctor of education degree in human and organizational learning from The George Washington University, Washington, DC., “U.S. Africa Command and the Principle of Active Security,” National Defense University Press, issue 51, 4th quarter 2008, http://intelros.ru/pdf/jfq_51/16.pdf)eks

This vignette illustrates the ultimate purpose of U.S. Africa Command (USAFRICOM). In support of U.S. foreign policy and as part of a total U.S. Government effort, USAFRICOM’s intent is to assist Africans in providing their own security and stability and helping prevent the conditions that could lead to future conflicts. The command will do this by employing the principle of Active Security, which governs who we are and what we plan to do. It is the basis for our theater strategy. The types of activities described above fall within the spirit of security assistance as defined in DOD Publication 5105.38–M, Security Assistance Management Manual, dated October 2003. However, these activities did not all follow the strict definition of “programs, authorized by law, that allows the transfer of military articles and services to friendly foreign Governments.”1 While the assistance provided did “increase the ability of our friends to . . . help foster regional stability,” much of the above involved the transfer of subject matter expertise and not necessarily the “transfer of articles or services.” Unfortunately, this has led to a cultural paradigm where security assistance and the management thereof are defined and resourced based on a very narrow definition of “program,” which regards only the sales, grants, leases, or loans of goods or services that are essential to the security and economic well-being of allied governments. As a partner requests a particular good or service, a program is established or expanded. Program managers are assigned to execute the transfer, usually in the form of an Office of Security Cooperation (OSC).2 When the program is complete, the management mission is concluded, and the OSC is disbanded or moved But the real needs of our partners go beyond receiving goods or services; these nations are exercising a vision of their security goals and objectives. Many of the requirements that emerge are nebulous because their perspectives are different from ours, although we often have mutual interests. While existing program vehicles such as Foreign Military Sales and International Military Education and Training (IMET) can provide means by which our partners can meet specific objectives, these partners also look to us for subject matter expertise and other intangible forms of assistance. Furthermore, many of our partners have security concerns whose resolutions fall outside of the DOD purview or that overlap multiple U.S. agencies. The narrow view of programs reaffirms stovepiped responsibilities, predetermining who administers a program and causing all others to step aside. The modern dynamic security environment requires that we address security from a holistic perspective and integrate our efforts horizontally across the U.S. Government.

Precision is unachievable in the context of arms sales - policies are too incoherent Forsyth 04 (Tim Forsyth, Professor of Environment and Development “Encyclopedia of International Development,” November 15, 2004, https://books.google.com/books?id=jXl0DwAAQBAJ&pg=PT166&lpg=PT166&dq=%22arms+sales%22+%22wide+definition%22&source=bl&ots=dC1s5cG958&sig=ACfU3U3-r2g 5dbXvtLmErKgVb14mlioPg&hl=en&sa=X&ved=2ahUKEwjm3KfP4IzjAhUFXc0KHUBpAgYQ6AEwAXoECDEQAQ#v=onepage&q=%22arms%20sales%22%20%22wide%20definition%22&f=false)

The concept of coherence refers to the deliberate management of different policies to ensure that they support, rather than undermine, each other's objectives. The term has been used increasingly since the 1990s. Coherence can be defined either narrowly or broadly. A narrow definition would be that objectives of policy in a particular field may not be undermined or obstructed by actions or activities in this field. This mainly involves here incoherence between the different objectives and/or instruments of development policy. A wide definition would be that objectives of policy in a particular field may not be undermined or obstructed by actions or activities of government in that field or in other policy fields. This broader definition of fields refers to development policy and, in theory, all parts of policy-making, but the most common incoherences could be found in trade, agriculture, human rights and arms trade policies (see arms sales and controls). Despite these efforts to achieve coherence, incoherences do occur. One cause for incoherences may be the need for governments try and find optimal - if contradictory - solutions to the demands placed on them by wide-ranging

Precision in measuring the arms trade is impossible – no common definitions or transparency and varying data Holtom and Bromley 10 (July 2010, Paul Holtom is a researcher at the Small Arms Survey Team and Mark Bromley is the director of the SIPRI Dual-Use and Arms Trade Control Programme, “The International Arms Trade: Difficult to Define, Measure, and Control”, https://www.armscontrol.org/act/2010_07-08/holtom-bromley) MT

As has been shown in the past, financial resources—from domestic budgets or foreign military assistance—are not the only factor that influences arms acquisitions. Perceived internal or external threats to national security, the need to replace or upgrade military inventories, demonstrations of international status, development of domestic arms industries via licensed production and offsets, the desire to strengthen ties with suppliers, and the influence of the military play important roles in the arms acquisition process. Before permitting exports of arms and military equipment, suppliers will assess the potential economic gains and the potential impact of the transfer on their strategic interests and foreign policy. Will the transfer harm or help friendly states or the supplier’s international commitments,

reputation, or standing? For several reasons, there is no straightforward answer to the question, “How big is the international arms trade ?” First, there is no globally agreed definition of “arms.” States and international organizations that seek to measure or control the arms trade use lists of items that vary in their complexity and coverage, most notably with

regard to their inclusion of “dual-use goods,” items with both military and civilian applications.1 Second, there is no common agreement on what types of activities constitute the arms trade. Examples of areas where differences exist include arms leased to other states; gifts and donations; the transfer of technology to produce arms and military equipment; and upgrades, parts, and services related to the transfer of arms and military equipment. Third, the lack of openness and transparency by many arms suppliers and recipients regarding the value and volume of their arms exports and imports makes it difficult to collect accurate

data . As a result, a variety of different definitions of the international arms trade and estimates of its scale exists. This has implications for efforts to establish controls on arms transfers via a future international arms trade treaty (ATT). This article will outline some of the challenges in defining, measuring, and controlling the international arms trade. Definitions and Estimates The national lists of arms and military equipment to be subject to export controls (control lists) maintained by most states and all major arms exporters provide a useful starting point for defining “arms” and the international arms trade. The Munitions List and Lists of Dual-Use Goods and Technologies of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies provide the basis for the control lists of the 40 states that are members of the group. The Munitions List covers a wide range of arms and military equipment, from small arms to ships, as well as ammunition, information and communication technologies, training equipment, and equipment for producing arms. Several significant arms-exporting nonmembers, including China, have fully or partially aligned their national control lists with the Munitions List. As a result, all of the top 10 arms suppliers during 2005-2009 have control lists derived from the Wassenaar Arrangement. National control lists serve as the basis for national reports on arms exports. As of January 2010, 32 states had published at least one national report on arms exports since 1990, and a further nine states provided information on the value of their export licenses and exports to the 2009 European Union (EU) Annual Report on Arms Exports.2 These reports vary in detail but, at a minimum, tend to provide data on the financial value of arms export licenses or arms

exports. Several major exporters (e.g., Russia) do not produce such reports , but do release official data on the financial value of their arms exports. Using national reports and official statements, the Stockholm International Peace

Research Institute (SIPRI) has attempted to provide estimates of the financial value of the international arms trade (see below). The now-defunct U.S. Arms Control and Disarmament Agency (ACDA) created the following comprehensive definition of the arms trade, which has been widely used by researchers: weapons of war, parts thereof, ammunition, support equipment, and other commodities designed for military use.… Dual-use equipment…when its primary mission is identified as military. The building of defense production facilities and licensing fees paid as royalties for the production of military equipment.… Military services such as training, supply operations, equipment repair, technical assistance and construction are included where data are available.3 A similar definition of the arms trade is used to compile

the U.S. Congressional Research Service’s (CRS) annual report, “Conventional Arms Transfers to Developing Nations.” In spite of the name, the report contains estimates for the value of the global arms trade, not just trade with developing countries. The CRS estimated the financial value of deliveries of arms to be $34.5 billion for 2007.4 Despite using a narrower

definition of arms transfers than the CRS, SIPRI’s accounting of official financial data contained in national reports and official statements for 2007 generated a figure of $51.1 billion for arms exports, representing 0.3 percent of world trade.5 This figure is likely to be lower than the true figure because a number of significant exporters , including China, do not release data on the financial value of their arms exports . The difference between the SIPRI and CRS estimates is a further demonstration of the difficulty of estimating the financial value of the international arms trade. The SIPRI arms transfers database provides information on international arms transfers from 1950 to the most recent calendar year.6 Its coverage is narrower than that of the ACDA, CRS, and national control lists; for example, it does not include transfers of most small arms and light weapons (SALW). However, it provides information on the number of units transferred and employs a unique pricing system to measure the volume of arms transfers. The SIPRI trend indicator value allows researchers to track developments in transfers to and from different suppliers, recipients, and regions. SIPRI data form the basis for the discussion below.

Government DCS figures are unreliable – underreporting and lack of updating Freeman 18 (July 19, 2018, Sam Perlo Freeman is the Program Director of the World Peace Foundation, “How Big is the International Arms Trade?”, https://sites.tufts.edu/wpf/files/2018/08/How-big-is-the-International-Arms-Trade-20180725-f.pdf) MT

US arms exports are conducted through two main separate routes: Foreign Military Sales (FMS), which are government-to-government contracts between the US government and a foreign government, with the US DOD subcontracting the delivery of the equipment and/or services to a US defense company; and Direct Commercial Sales (DCS), which are negotiated directly between the US exporting company and the client government, and which must receive an export license from the Directorate of Defense Trade Controls (DDTC) in the US Department of State. The data situation is very different for these two types of sale. Detailed country-by-country data on both orders and deliveries for Foreign Military Sales are provided by the DOD Defense Security Cooperation Agency (DSCA), covering both equipment and services in each case; the data are updated in subsequent years as more information becomes available, and as far as it is possible for an outside observer to tell, is comprehensive and accurate. Full details of individual contracts are published on the DOD website. 14 The average level of FMS

deliveries for 2012-2016 was $15,975 million. In contrast, the publicly available data for Direct Commercial Sales are unclear, noncomprehensive, appear to vary considerably in methodology over time, and are not updated with new information after initial publication. While notification to Congress is required for individual license requests over a certain size, the details of these are buried within the overall record of

activities of the House Foreign Affairs Committee,15 although the Security Assistance Monitor has extracted a full list of notifications for 2016 and 2017.16 Data on DCS licenses and deliveries by country are provided by the DDTC in their annual Section 655 report.17 These give totals by country for licenses approved, broken down by category of good on the US military list, but only a single total by

country for the value of goods shipped. As discussed earlier, the data on DCS license approvals are essentially worthless in that they include licenses for deliveries to US forces overseas, and due to the long period for which licenses, especially for services, are valid. The data for the value of equipment shipped have one major lacunae, in that they do not include the value of military services delivered , unlike for FMS. The US Government Accountability Office (GAO) estimated in 2010 that about a third of the value of FMS contracts tends to be for services.18 Delivery of services is not reported to US Customs , and there is no reporting requirement for companies in relation to the provision of military services overseas . Thus, no-one collects data for the export of military services via DCS . Where services are provided as part of FMS contracts, the data is collected as part of the US Government’s monitoring of FMS delivery. A second flaw is

that the data for deliveries is not revised in subsequent years as more information becomes available .

Moreover, the annual data for total DCS deliveries (see figure 1) fluctuates wildly in a way that cannot be explained by changes in actual levels of arms exports. In particular, the figures for 2005, 2006, and 2008 are vastly higher than for other years, over $30 billion, and include figures for individual countries such as Japan and Iraq that cannot be accurate given these countries’ levels of military spending (and in the case of Japan the amount of equipment they source domestically). The reason for this would

appear to be that the figures for these years include deliveries to US forces, being based on a complete search of the US customs database. The basis for the figures in other years is unclear; whether it is based on customs data, or returns by companies from used or expired licenses, and if the latter if this reporting is mandatory or voluntary. I have heard different stories from different sources. Reporting based on license use would naturally give underestimates, as licenses for equipment are valid for 4 years, so a company might only return a used license after the full 4 years, by which time it would be too late to include any shipments made in the first 3 years in the Section 655 reports for the years in question (which, as

noted, are not revised in subsequent years). In some years, in particular in the late 1990s, the level of DCS deliveries reported sinks to below $1 billion, which seems hard to believe given the level of US arms exports overall at the time. Finally, the presentation of the section 655 reports by the DDTC has become progressively less user-friendly over the past decade or so. In 2008 and 2009, the reports were provided in both PDF and spreadsheet form, and had detailed introductions. Since then,

the spreadsheets have been removed, and the introductions have become less detailed. No global total figure is provided, so that this must be obtained by manually adding up the figures for each country. The PDF documents provided appear to come from a printout of an Excel spreadsheet, implying that an effort has been made to convert the more usable format into a less usable one. Finally, the report covering exports in 2016 has been buried in an extremely obscure location on the DDTC website (fortunately the reports are reproduced by Security Assistance Monitor), and the introduction has disappeared completely. It is almost as if the DDTC do not actually want the public to have the information . Due to the suspected underestimation of DCS deliveries, the US State Department’s World Military Expenditure and Arms Transfers (WMEAT) estimates these figures by assuming that all DCS licenses are delivered over the 4-year period for which they are valid; however, this makes the mistake of including deliveries to US forces overseas, thus producing huge overestimates. The degree of overestimation is likely to be even worse for military service exports for several reasons: i. The largest proportion of such authorizations that are for services provided to US forces overseas, as such maintenance and logistic services are overwhelmingly outsourced to the private sector; ii. Authorizations may cover a 10- year period, rather

than 4-year, according to the GAO report, with the value of services exported often lower than what is authorized; iii. The section 655 reports state, in relation to service agreements, (e.g. in the 2016 report) “Export authorizations furnished in FY 2016 also include certain activities occurring in prior years because the scope of the Department’s regulatory authority over such agreements continues for as long as these multi-year agreements remain in effect.” The interpretation of this is not clear, but it may mean that the value of authorizations reported in each year is the total value of authorizations for all agreements that are still in operation; this would imply that, rather than each authorization being counted only in the year it is granted, they are counted towards the total for each year for which they

apply Hence, the WMEAT approach to estimating DCS exports cannot be considered viable. By contrast, the Congressional Research Service (CRS), in its annual reports on the global arms trade, considers the DCS data to be so unreliable that it excludes it altogether . Evidence that—with the exception of 2005, 2006 and 2008—official data for DCS

deliveries is underestimated is supported by two sources. First, a GAO report in 2010 makes a rigorous assessment of US

defense equipment (not services) exports from 2005-2009, under both FMS and DCS, based on a detailed search of the US Customs database, taking care to exclude DCS exports made under temporary export licenses, and those for deliveries to US forces overseas.19 The figures for DCS deliveries range from $9.6 billion in 2005 to $13.3 billion in 2013; much lower than the official figures for the outlier years of 2005, 2006 and 2008, but much higher than those in 2007 and 2009. The report criticizes the quality of reporting on US arms exports through DCS. Secondly, there is data from the annual reports to Congress by the Bureau of Industry and Security (BIS) on Offsets in Defense Trade. While the main purpose of these reports is to provide information on offset agreements made in relation to US arms exports, the reports also provide annual data for total US defense merchandise exports (not including services), through FMS and DCS combined. The most recent report covers data up to 2015.20 The GAO figures are presented in the report in constant 2009 dollars; these have been converted into current dollars using the DOD deflator used in the report, taken from budget tables from the Whitehouse Office of Management and Budget. Table 2 shows the figures for the various different sources for FMS, DCS, and combined totals, from 2005-2016. The offsets report is based on US trade census data, using end-user codes that relate to military products. The codes included are: export end-use codes: (50000) Military aircraft, complete; (50010) Aircraft launching gear, parachutes, etc.; (50020) Engines and turbines for military aircraft; (50030) Military trucks, armored vehicles, etc.; (50040) Military ships and boats; (50050) Tanks, artillery, missiles, rockets, guns, and ammunition; (50060) Military apparel and footwear; and (50070) Parts for military-type goods. The GAO report, meanwhile, includes the following subcategories of military equipment: military aircraft and spares; satellites, communications and electronics equipment, and parts; aircraft; vehicles, weapons, and parts; other equipment and parts; missiles and parts; ammunition, explosives, and parts; firearms and parts; and ships and parts. These two would appear to cover the same ground, except for the “satellites, communications and electronics equipment, and parts” category in the GAO report, which has no counterpart in the offsets report;

presumably as the trade data does not distinguish between satellites and communication systems etc. for military and civilian use. While not providing an annual breakdown or an exact figure, a bar graph in the GAO report shows the total for each category for the five-year period. The apparent figure for the satellites etc. category of around $19 billion (in current prices) corresponds almost exactly to the difference between the totals for 2005-09 between the two sources. Hence, the GAO report and the offsets report are mutually consistent in their figures for total exports of defense articles for 2005-09, supporting the contention that the official DCS figures for 2007 and 2009 are underestimates, and suggesting that figures for other years (apart from the methodological outliers of 2005, 2006, and 2008) may also be underestimated. Further support for this claim comes from a comparison of the offset report figures with the official figures for FMS and DCS in later years. Bear in mind that the offset report excludes FMS services, which typically account for around a third of the FMS total, according to the GAO report. (For the period 2005-09, services appear to have accounted for 39% of the FMS total, based on the difference between the official figures for total FMS, and the GAO figures for FMS articles only). Moreover, the offset report appears to exclude satellites, communication and electronics equipment and parts, from both FMS and DCS figures—a category that accounted for

approximately 20% of defense equipment exports over 2005-09 according to the GAO report. Nonetheless, the total figure for defense equipment exports from the offset report for 2014, $20.6 billion, is actually higher than the total official figures for FMS and DCS, indicating a severe underreporting of DCS exports (assuming that the

FMS figures are to be considered accurate). In other years, the official FMS+DCS total is higher than the offset report, but in some cases only slightly higher, so that the share of FMS services and satellites etc. in the total would have to be implausible small for the figures to be consistent. (The difference amounts to just 4.5% of the total of official FMS+DCS figures in 2012, and 6.5% in 2015, for example). A final piece of evidence in support of the claim that DCS figures are underestimated in later (and possibly earlier) years as well as in 2007 and 2009 comes from my own analysis of US exports of major conventional weapons over time, based on the SIPRI Arms Transfers Database. I examined the records for individual arms transfers in SIPRI’s internal database, looking at all US arms deliveries over the two

periods, 2005-09, and 2012-15, and identifying those which were, or were most likely, DCS sales. The result was that, over the period 2005-09, DCS sales averaged a TIV value of 3285 per year, or 46% of the total for US arms deliveries. Over the period 2012- 2016, this declined to an average annual TIV of 2768, a decline of 16%, and only 26% of the total TIV value of US deliveries for the period. Against this decline, we may note that there has been some inflation between the two periods (with military cost inflation likely at least as high). Overall, it would appear from this analysis of SIPRI data that the volume of DCS arms deliveries has probably not changed substantially in either direction. At any rate, the apparent decline from the average of $11.5 billion a year for 2005-09 reported in the GAO report, to just $4.5 billion for 2012-

16 according to the official figures, seems too large to be plausible. Hence, if the GAO figures—which, as noted, are consistent with the offset report—are to be believed, then the official DCS figures for later years must be considered highly suspect. While not completely conclusive, the accumulation of evidence suggests a systematic under-counting of DCS exports in official figures. The reasons for this likely undercounting cannot be determined without far greater methodological transparency from the DDTC, which was not forthcoming under the previous administration, and is hardly likely to be more so under the current one.

limits good - generalDepth of understanding of core subject areas offers inroads to understanding of the breadth of a topic Conley 15 (Oct 13 2015, David T. Conley is a professor of educational policy and leadership and director of the Center for Educational Policy Research in the College of Education at the University of Oregon, "Breadth vs. Depth: The Deeper Learning Dilemma", https://blogs.edweek.org/edweek/learning_deeply/2015/10/breadth_vs_depth_the_deeper_learning_dilemma.html) MT

It is impossible to go in depth on every subject area, instead we should learn the core parts of each topic because it allows us to learn about the structure of the entire discipline of that topic which one can then apply to broader content knowledge

Few people overtly object to the idea that students should understand what they are learning at a deep level so that they might retain and use the knowledge and skills they are taught. To do so, however, almost always requires students to spend more time on a topic or concept. Spending more time in one area almost always means exposing students to less of the curriculum as a whole. This fundamental tug-of-war must be addressed for students to achieve the dual goals of acceptable performance on tests that cover the breadth of the curriculum and on assessments that plumb the depths of student understanding. Standardized tests are built around the concept of domain

sampling. A test is constructed by creating items that are drawn from the overall knowledge domain of the subject or course. Ideally, the items taken as a whole are a representative cross-section of the knowledge and skills in the domain. The test does not gauge all that could conceivably be learned about the domain, but by sampling in an unpredictable but systematic fashion

from the domain, the test purports to determine the degree to which the test taker has mastered the domain as a whole. Performance assessments take a different approach. They select a key subset of the knowledge in the domain and explore student understanding and facility within that subset. Such assessments are often multidimensional. In other words, they end up gauging both content knowledge and other skills essential to the subject area. While the results from one performance assessment cannot be

used to judge the test taker's mastery of the entire domain, it is not unreasonable to assume that performance on a challenging performance assessment focused on key content and skills says a lot about overall student mastery of the domain without testing each and every part of it. The greatest challenge for teachers who wish to incorporate deeper

learning is to balance the amount of content they cover with the depth to which students explore what they are learning. It's not practical for students to go to deeper levels on all the content they learn, and it may not be necessary for them to do so. The key is for teachers to determine which concepts or skills are the keystones that unify or connect the subject area. I f students can go deep in those areas, they can gain insight into disciplinary thinking , the way experts in that subject go about applying their content knowledge.

Depth in research is better for understanding a topic—leads to increased research skills and academic outcomes Coker et. al 17 (Coker, J. S., Heiser, E., Taylor, L., & Book, C. from Elon University (2017). Impacts of Experiential Learning Depth and Breadth on Student Outcomes. Journal of Experiential Education, 40(1), 5–23. https://doi.org/10.1177/1053825916678265) MT

Numerous studies suggest that undergraduate research that spans multiple semesters is most beneficial for student outcomes (Russell, Hancock, & McCullough, 2007; Zydney, Bennett, Shahid, & Bauer, 2013). A study comparing student research

gains after a summer experience versus a yearlong experience found that students in the latter showed significantly higher

gains overall, especially in research skills that require time to develop and that often occur toward the end of research projects (data interpretation, communication of results, independence, relating results to the bigger picture of their fields, and so on; Adedokun et al., 2014). Gilmore, Vieyra, Timmerman, Feldon, and Maher (2015) found that graduate-level research skill performance increased substantially with the duration of undergraduate research experiences. Craney et al. (2011) found that undergraduates with more research experience find the research more advantageous for employability and graduate school admissions

than students with shorter experiences. Similarly, Fechheimer, Webber, and Kleiber (2010) found that longer undergraduate research experiences were positively related to student grades. Research on the outcomes of internship depth is sparse and often focuses on training teachers. Spooner, Flowers, Lambert, and Algozzine (2008) found that preteachers in yearlong internships reported better relationships with supervising teachers, greater knowledge of school policies and procedures, and higher scores for the perceived adequacy of time spent in school than did the students in a semester internship. However, preteachers did not differ in perceptions of their own teaching ability (Spooner et al., 2008). Chambers and Hardy (2005) found that two-semester internships did not lead to added benefits over one-semester benefits in terms of instructional management, behavioral management, or self-efficacy. However, another study found that the most effective teacher training programs require 6 or more months of internship (DarlingHammond, Chung, & Frelow, 2002). A study by the company Intern Bridge found that, across 6,147 students, the level of student satisfaction with an internship was directly

correlated with length, ranging from short experiences of 1 to 4 weeks to long experiences of 13 to 16 weeks (Grasgreen, 2012). Student outcomes are also affected by depth during service-learning experiences . Students involved in more than 20 hr of service-learning tend to gain a greater sense of social issues and a deeper commitment to community involvement than students involved in less than 20 hr (Kendrick, 1996; Markus, Howard, & King, 1993).

Likewise, civic identity is shaped only when service-learning is regular and sustained (Hepburn, Niemi, & Chapman, 2000; Mabry, 1998). Student leadership is another form of experiential learning that, though less studied, shares a developmental framework with other forms (Guthrie & Jones, 2012). The Multi-Institutional Study of Leadership (MSL; 2015) found that students who held more leadership positions scored significantly higher on measures of congruence, commitment, consciousness of self, collaboration, handling controversy with civility, citizenship, overall socially responsible leadership, resiliency, leadership efficacy, complex cognitive skills, and social perspective-taking. A study of leadership at a military academy found that more experienced student leaders were more self-critical (West, 2012).

A more limited topic leads to more creative affsGibbert et al. 07(Michael Gibbert is an assistant professor of management at Bocconi University (Milan, Italy). Martin Hoegl is a professor of leadership and human resource management at WHU-- Otto Beisheim School of Management (Koblenz, Germany). Lifsa VAlikangas is a professor of innovation management at the Helsinki School of Economics (Finland) and a director of the California-based Woodside Institute.)

Resource constraints can also fuel innovative team performance directly. In the spirit of the proverb "necessity is the mother of invention," teams may produce better results because of resource constraints. Cognitive psychology provides experimental support for the "less is more" hypothesis. For example, scholars in creative cognition find in laboratory tests that subjects are most innovative when given fewer rather than more resources for solving a problem. The reason seems to be that the human mind is most productive when restricted. Limited - or better focused - by specific rules and constraints, we are more likely to recognize an unexpected idea. Suppose, for example, that we need to put dinner on the table for unexpected guests arriving later that day. The main constraints here are the ingredients available and how much time is left. One way to solve this problem is to think of a familiar recipe and then head off to the supermarket for the extra ingredients. Alternatively, we may start by looking in the refrigerator and cupboard to see what is already there, then allowing ourselves to devise innovative ways of combining subsets of these ingredients. Many cooks attest that the latter option, while riskier, often leads to more creative and better appreciated dinners. In fact, it is the option invariably preferred by professional chefs.\

limits good – # of countriesThe size of the topic is already huge – 98 nations import US weapons Abramson and Czejdo 19 (April 2019, Jeff Abramson and Izabella Czejdo, Jeff Abramson is a non-resident senior fellow for arms control and conventional arms transfers at the Arms Control Association and Izabella Czejdo is a writer for the Arms Control Association, "U.S. Arms Policy & Sales", https://www.armscontrol.org/taxonomy/term/36) MT

Since the 1990s, the United States has remained the world’s leading arms exporter, and the gap between it and the second-

largest exporter, Russia, has grown steadily. Together, they supply nearly 60 percent of all major conventional weapons systems exports, with 98 nations importing U.S. weapons , about double the number of Russian customers. Adding French, German, and Chinese transfers brings the exports of the five countries to 75 percent of the global market. Accounting for just more than one-third of global arms imports as a region, Middle Eastern countries increased weapons purchases by 87 percent from the 2009–2013 period to the 2014–2018 period. The United States supplied 54 percent of weapons to the region, which is wracked by ongoing conflicts and is increasing its weapons imports faster than any other region. Saudi Arabia, which has nearly tripled its weapons imports over the past decade, now accounts for 12 percent of global imports and has replaced India as the largest global importer. Egypt, the United Arab Emirates, and Iraq were also top 10 global importers from the region. Arms transfers to the region have grown increasingly controversial, especially to Saudi Arabia and the UAE, which are leading the air and ground forces fighting Houthi forces in Yemen. The conflict there has become a major humanitarian crisis. More than 17,000 civilians have died in the fighting as of August 2018, according to the Office of the UN High Commissioner for Human Rights, which estimated that 60 percent of those deaths resulted from airstrikes by the Saudi-led coalition. Regional arms imports have enabled the coalition to blockade Yemeni ports, halting the inflow of commercial goods. About 24 million people, 80 percent of the Yemeni population, require humanitarian assistance, reports the UN Office for the Coordination of Humanitarian Affairs. The European Parliament has approved numerous nonbinding resolutions prohibiting arms sales to Saudi Arabia, with countries such as Austria, Germany, the Netherlands, and Sweden taking steps to restrict exports to Riyadh. France, the United Kingdom, and the United States have continued to provide Saudi arms, although a UK court is expected to resume consideration of a case in

April, challenging the legality of London's sales to Riyadh. U.S. Sales Already the top arms exporter, the United States has recently sought to boost its sales. SIPRI reports that Washington now accounts for 36 percent of global exports , up from 30 percent in the prior five-year period. The misuse of U.S. arms transferred by recipient countries has drawn recent scrutiny after reports that Saudi Arabia and the UAE had provided U.S. weapons to al Qaeda militias in Yemen. Separately, Indian leaders raised allegations that Pakistan had misused U.S.-supplied fighter aircraft during recent border tensions. In implementing U.S. conventional arms transfer policy moving forward, “we are examining our procedures for evaluating allegations of misuse,” Laura Cressey, State Department deputy director of the Office of Regional Security and Arms Transfers, told Arms Control Today March 18. That policy, overdue for a quarterly implementation update, currently states the intent to “facilitate ally and partner efforts…to reduce the risk of national or coalition operations causing civilian harm.” The policy has received criticism for justifying arms transfers to “maximize the ability of the United States industry to grow and support allies and partners” in the face of competition from other exporters. SIPRI “does not support this narrative” of stiff competition as a rationale for U.S. policy, said report co-author Aude Fleurant in a press statement. “The United States is “by far the largest exporter…[and] has increased its gap with Russia,” she added. Noting that changes in broader patterns take time, she also cautioned that “the policy was adopted in 2018, it is a bit early to see its potential impacts.” Global arms transfers are expected to experience continuing growth, Fleurant said, despite somewhat lower transfers in 2018 than the previous year. “Outside of a major economic downturn like the 2008–09 crisis, I don’t think we will see a reversal of the upward trend,” she said. U.S. is top-seller again as questions simmer over where its weapons end up.

limits good – # of armsMultiple actors in FMS process and unknown number of non-standard items make topic unmanageable GAO 19 (Feb 2019, United States Government Accountability Office, “Report to Congressional Committees: Foreign Military Sales Observations on DOD’s Approach to Developing Price and Availability Estimates for Foreign Customers”, https://www.gao.gov/assets/700/697041.pdf) MT

The FMS program, which transfers defense articles and services to international partners and organizations, is essentially an acquisition process through which the

U.S. government procures military equipment, training, and other services on behalf of foreign customers.5 Multiple organizations have a role in the FMS program . The Department of State has overall responsibility for the program, including approving what defense items and services can be

sold to specific countries. DOD administers the FMS program and manages the procurements executed within the military departments on behalf of foreign governments. Within DOD, DSCA carries out key functions such as supporting development of policy for FMS. The military departments carry out the day-to-day implementation of FMS procurements which can include providing price and availability data at the customer’s request. Typically, defense items—such as weapon systems—made available for transfer or sale to foreign customers are systems that have

completed operational testing and are entering or have entered full rate production. In addition, DOD also sells non-standard items, which are defined as items that DOD does not currently manage and may include items that (1) are commercially available, (2) DOD previously purchased and have since been retired, or (3) were purchased in a different configuration for DOD components. For example, a customer may express interest in buying tanks that DOD no longer buys for its own needs. A customer may also express interest in buying a tank that DOD currently procures but with a radio communications configuration that is different from what DOD uses. A single DOD entity may not have full responsibility for all aspects of responding to a foreign customer’s request to purchase U.S. defense items and services. Under DSCA policy, FMS procurements must generally be managed at “no cost” or “no profit” to the U.S. government. DOD’s work related to developing price and availability data and other FMS operations is generally paid for through the administrative charges collected from foreign customers.

Depending on the complexity of the customer’s request, coordination within and across DOD components may be necessary to obtain complete information on pricing and availability . DOD may also need to coordinate with defense contractors who ultimately develop and provide the equipment or services. The FMS process generally begins when a foreign government submits a letter of request to the Department of State or DOD to purchase defense articles or services. In the letter of request, the foreign customer may express interest in obtaining preliminary price and availability data for the capabilities it seeks. While DOD describes price and availability data as rough order of magnitude estimates, DSCA’s guidance does not define the precision of these estimates. According to DOD, FMS price and availability data are non-binding estimates for the defense items and services and are not intended to be budget-quality estimates. Requests for price and availability data can signal to DOD and defense contractors the potential for future sales. DOD and contractors may also draw upon these requests to forecast staffing needs and production line availability. DOD security cooperation organizations working in U.S. embassies around the world can assist potential customers with defining and refining their requirements prior to submitting a request for price and availability data. The security cooperation organizations engage in this early coordination to help customers articulate their capability needs. This early coordination also gives DOD components advance notice of upcoming requests so they can initiate technology security and foreign disclosure processes for the timely release of information.6 Requests for price and availability data represent an optional step in the process. Customers may forgo the price and availability process and instead submit a formal assistance request for a letter of offer and acceptance, which when signed by the customer and U.S. government becomes an executable FMS case. Figure 1 illustrates where the option to request price and availability occurs in the overall FMS process.

limits bad - generalBreadth outweighs depthColander and McGoldrick 9 (David, Professor of Economics at Middlebury College, and KimMarie, professor of economics in the University of Richmond, Liberal Education, Vol. 95, No. 2 “The Economics Major and Liberal Education,” Spring)

The success or failure of a liberal education, or an undergraduate major, depends far more on how the educational process influences students’ passion for learning than it does on what specifically they learn. A successful liberal education creates a lifelong learner, and classroom instruction is as much a catalyst for education as it is the education itself. Because passion for learning carries over to other fields and areas, the catalyst function of education

does not depend on content. Academic departments tend to focus on both the need for depth in the field and the need for specialized training as a component of liberal education. The push for depth over breadth by disciplinary scholars is to be expected. Just as a Shakespeare scholar is unlikely to be passionate about teaching freshman composition, a scholar of classical game theory is unlikely to be passionate about teaching general economic principles

within the context of an interdisciplinary consideration of broad themes. Because breadth is not usually associated with research passion by disciplinary specialists, and because a college is a collection of disciplinary specialists, breadth often gets shortchanged; it is interpreted as “superficial.” But in reality, breadth pertains to the nature of the questions asked. It involves asking questions that are unlikely to have definitive answers—“big-think” questions that challenge the foundations of disciplinary analysis . By contrast, depth involves asking smaller questions that can be answered—“little-think” questions that, too often, involve an uncritical acceptance of the assumptions upon which research is built. Questions and areas of study have two dimensions: a research dimension and a teaching dimension. The disciplinary nature of both graduate education and undergraduate college faculties leads to an emphasis on “research questions,” which tend to be narrow and in-depth, and a de-emphasis on “teaching questions,” which tend to involve greater breadth. Economics has its own distinctive set of teaching questions: Is capitalism preferable to socialism? What is the appropriate structure of an economy? Does the market alienate individuals from their true selves? Is consumer sovereignty acceptable? Do statistical significance tests appropriately measure significance? It is worthwhile to teach such “big-think” questions, but because they do not fit the disciplinary research focus of the profession, they tend not to be included in the economics major. This is

regrettable, since struggling with “big-think” questions helps provoke a passion for learning in students and, hence, can be a catalyst for deeper student learning. It is similarly worthwhile to expose students to longstanding debates within the field. For example, Marx considered the alienation created by the market to be a central problem of western societies; Hayek argued that the market was necessary to preserve individual freedom; and Alfred Marshall argued that activities determine wants and, thus, wants

cannot be considered as primitives in economic analysis. Such debates are highly relevant for students to consider as they study economics within the context of a liberal education. But these kinds of debates are not actively engaged as part of cutting-edge research, which instead tends to focus either on narrow questions that can be resolved through statistical analysis or on highly theoretical questions that exceed the level of undergraduate students.

Breadth is key to education Care and Anderson 16 (May 2016, Esther Care and Kate Anderson, “How Education Systems Approach Breadth of Skills”, https://www.brookings.edu/wp-content/uploads/2016/05/brookings_how-education-systems-approach-breadth-of-skills_web_07-2016.pdf) MT

Many governments are aware of this need for a broader range of skills and make this explicit in different ways and to varying degrees. For example, countries such as Australia or Singapore provide specific guidelines for the integration of both cognitive and social-emotional skills into schooling. Australia identifies several “general capabilities,” including literacy, numeracy, information and communication technology competence, critical and creative thinking, personal and social competence, ethical behavior, and intercultural understanding. These general capabilities are the key “set of knowledge, skills, behavior, and dispositions that can be developed and applied across the curriculum to help students become successful learners, confident and creative individuals and active and informed citizens” (ACARA, 2016). The general capabilities are integrated within and across the content of key learning areas as appropriate. The Australian online curriculum provides links to show where the general capabilities have been incorporated in key learning area descriptions, and also provides examples and guides for their implementation into teaching and learning. Singapore’s approach calls for the integration of 21st century skills into both the academic and the non-academic curricula, and sees this as part of the country’s “holistic education.” Singapore notes that responsibility for development of these skills is placed with both the formal education system and parents and the two layers must work together, “hand in hand.” The Singaporean framework also notes that knowledge and skills must be underpinned by values. The skills referenced in Singapore’s approach include social-emotional competencies and “emerging” competencies such as communication, civic literacy, and critical thinking. Many other countries express similar goals around breadth of skills, such as in Rwanda, Ontario Canada, South Korea, and Mauritius where the education ministries’ websites feature mission statements and visions for learners (see Figure 2). Although the skills

identified in these mission statements are described differently, they share common ground. From high- to low-income countries, a trend toward broadening of curriculum is emerging, at least in terms of aspirational statements. The extent to which this breadth is reflected in the implementation of education systems is less clear. As far as global aspirations are concerned, the Sustainable Development Goal 4 (United Nations, 2015) names only literacy and numeracy skills specifically (target 4.1), although other skills are implied in various targets. These targets include readiness for primary education (target 4.2),

technical and vocational skills (target 4.4), and skills needed to promote global citizenship and sustainable development (target 4.7). These targets signal an emphasis on the breadth of skills necessary to comprehensively prepare children, youth, and adults for 21st century citizenship and life. In the Skills for a Changing World project, we study the alignment of the worldwide aspiration for breadth of skills with its implementation. As with the execution of any vision, particularly large-scale

transformations, the application of breadth to education systems varies greatly from country to country. We focus on the factors that fuel the uptake of breadth of skills as well as the elements that lay the foundation for breadth within the formal education ecosystem. The formal education system will need to undergo wholesale change to provide breadth of skills for its students and graduates. Since education was acknowledged as a human right nearly 70 years ago, educational endeavors have primarily focused on content and knowledge accumulation. Accordingly, teachers focused on content (primarily on its delivery); curricula focused on content (not on how to use it effectively); and assessment focused on content (particularly on its accumulation or lack thereof).

Refocusing our activities from content accumulation to skills development sharply impacts each of these three components. This project focuses on the extent to which this interdependency is recognized and acted upon and the degree to which it facilitates the implementation of breadth of skills in curriculum, pedagogy, and assessment. All three will need to be reformed in the drive for breadth of skills . Curriculum Curriculum is the education system’s roadmap. It has a starting point and an end point. It outlines both the objects along the way, such as subjects, topics, and activities, and the route (or routes) to take. It can describe different ways of using the objects and different ways to navigate the routes. When breadth of skills is valued in the curriculum, the roadmap focuses on how the objects along the way are used in the service of the end goals, whereas a curriculum valuing content knowledge simply notes their existence or emphasizes memorization of their origins and purpose. Consequently, within a skills development context, the curriculum needs to be explored and analyzed in a way that optimizes these objects as learning stepping stones rather than as discrete learning objectives. Pedagogy Teaching is not the mere provision of content knowledge from instructors to students. Teachers are the primary navigators and implementers of the curriculum, and as a broad range of skills becomes valued as “core business” for education systems, teachers will need to teach these skills and their application. Teaching for these skills may require a specific set of pedagogical strategies, with new methods and tactics adapted to the changing roadmap. Therefore, one of the consequences of including a breadth of skills in the curriculum is the need to reexamine pedagogical practices. Assessment Assessment is the way we evaluate learners’ progress toward the endpoints of the roadmap. In an education system focused on breadth of skills, the learning target is the students’ capacity to process and use information, not their ability to store and recall facts. Thus the assessment target also changes to evaluating that processing capacity, which poses a challenge for assessment experts. Assessing whether a student knows a fact is relatively simple for test development. Assessing whether a student can identify how that fact can be used is complex. We shift from a well-defined goal to an ill-defined goal (Care & Griffin, 2014; Fischer, Greiff, & Funke, 2012). In the context of classroom assessment, we move from a “closed” question—where a student can

respond yes or no, correct or incorrect, true or false, or provide the fact itself—to an “open” question or prompt, where a student can demonstrate understanding and application within parameters that capture student proficiency in an efficient and standardized way. Figure 3 provides an illustration of the assessment, curriculum, and pedagogical interdependencies and how change in one requires change in the others. Our goal is to work with education systems to understand how these interdependencies are considered and to contribute to reform efforts associated with adopting breadth of skills in formal education. Accordingly, for this project, this implies a deep look at the education systems and practices across the countries that are part of our project. THE GLOBAL MOVEMENT TOWARD BREADTH OF SKILLS Skills for a Changing World seeks to understand the factors that propel systemic reform at the national and global levels as well as the factors that might inhibit such reform. Why have some countries fully integrated breadth of skills across ages and opportunities into their education systems? Why have others included this breadth in name only (for example, in vision statements or curricula, but not in practice), and why have some

not included it at all? Our project will attempt to answer these questions. Changing Workforce Demands The work of researchers from the Massachusetts Institute of Technology and Harvard University provides evidence that technological change is driving the major shift in workforce demand for skills, particularly with respect to the transition toward more educated workers. Autor, Levy, and Murnane (2003) and Levy (2010) show how the workforce since 2000 has increasingly demanded “non-routine” competencies in employees. Routine activities are those which could in principle be scripted (Acemoglu & Autor, 2010), and that are procedure- or rule-based activities; non-routine activities, whether abstract or manual, are less predictable and require flexibility and adaptability. Extensive reviews of the nature of skills and characteristics valued globally in the 21st century have been undertaken. Substantial works include that of Binkley and colleagues (Griffin, McGaw, & Care, 2012), Hilton and Pellegrino (National Research Council, 2013), and the World Economic Forum (2014). These reviews rely on substantive contributions from UNESCO’s

DeLors Report (1996) and Organisation for Economic Co-operation and Development (OECD)’s DeSeCo Report (2001). While there is much overlap in the skills and characteristics presented in these reports, researchers, and practitioners have diverse views on the most useful frameworks, organizing principles, and specific skills and characteristics. These views may reflect some of the technical concerns around assessment and measurement, pedagogical concerns around effectiveness of skills development, and research concerns around predictive capacity of skills enhancement for study and work outcomes. Figure 4 shows results from a quick web search of the most frequently used terms associated with early childhood development, on the left; and, employability and life skills, on the right. In this project, we will be exploring the common ground between these two life stages, as well as the characteristics and skills that are highlighted in the formal education system in the years between. What is notable just from the skills and characteristics noted in Figure 4 is the common ground between what is valued at the two life stages. Whether or how these skills are addressed in the school years is at the heart of this project. Skills for a Changing World will undertake a review of the evidence of skills development in the formal education system. The review will have two components. The first is an analysis that describes salient characteristics in early childhood development and identifies the associations of these characteristics with skill development in adolescence and early adulthood. This analysis will draw especially upon the fields of psychology and education. The second component is a study describing the workforce demand in the focus countries and linking it with the skills implied by the analysis of the demand.

vagueness bad - generalTheir framework produces worse policy—vague shifting conceals weaknesses and results in manipulation that turns their impactGalles 2009 (Gary, Professor of Economics at Pepperdine, “Vagueness as a Political Strategy,” March 2, http://blog.mises.org/archives/author/gary_galles/)

The problem with such vagueness is that any informed public policy decision has to be based on specific proposals. Absent concrete details, which is where the devil lurks, no one--including those proposing a "reform"--can judge how it would fare or falter in the real world. So when the President wants approval for a proposal which offers too few details for evaluation, we must ask why. Like private sector salesmen, politicians strive to present their wares as attractively as possible. Unlike them, however, a politician's product line consists of claimed consequences of proposals not yet enacted. Further, politicians are unconstrained by truth in advertising laws, which would require that claims be more than misleading half-truths; they have fewer competitors keeping them honest; and they face "customers"--voters-- far more ignorant about the merchandise involved than those spending their own money. These differences from the private sector explain why politicians' "sales pitches" for their

proposals are so vague. However, if vague proposals are the best politicians can offer, they are inadequate. If rhetoric is unmatched by specifics, there is no reason to believe a policy change will be an improvement, because no reliable way exists to determine whether it will actually accomplish what is promised. Only the details will determine the actual incentives facing the decision-makers involved, which is the only way to forecast the results, including the myriad of unintended consequences from unnoticed aspects . We must

remember that, however laudable, goals and promises and claims of cost-effectiveness that are inconsistent with the incentives created will go unmet. It may be that President Obama knows too little of his "solution" to provide specific plans. If so, he knows too little to deliver on

his promises. Achieving intended goals then necessarily depends on blind faith that Obama and a panoply of bureaucrats, legislators, overseers and commissions will somehow adequately grasp the entire situation, know precisely what to do about it, and do it right (and that the result will not be too painful, however serious the problem)--a prospect that, due to the painful lessons of history, attracts few real believers. Alternatively, President Obama may know the details of what he intends, but is not providing

them to the public. But if it is necessary to conceal a plan's details to put the best possible public face on it, those details must be adverse. If they made a more persuasive sales pitch, a politician would not hide actual details. They would be trumpeted at every opportunity, proving to a skeptical public he really had the answers, since concealing rather than revealing pays only when better informed citizens would be more

inclined to reject a plan. Claiming adherence to elevated principles, but keeping detailed proposals from sight, also has a strategic advantage. It defuses critics. Absent details, any criticism can be parried by saying "that was not in our proposal" or "we have no plans to do that" or other rhetorical devices. It also allows a candidate to incorporate alternatives proposed as part of his evolving reform, as if it was his idea all along. The new administration has already put vague proposals on prominent display. However, adequate analysis cannot rest upon such flimsy foundations. That requires the nuts and bolts so glaringly absent. In the private sector, people don't spend their own money on such vague promises of unseen products. It is foolhardy to act any differently when political

salesmen withhold specifics, because political incentives guarantee that people would object to what is kept hidden. So while vagueness may be good political strategy, it virtually ensures bad policy , if Americans' welfare is the criterion.

Vagueness means the aff is manipulated to failThompson 2k (Anne, FAO, Sustainable Livelihoods Approaches at the Policy Level

Paper prepared for FAO e-conference, March, http://www.livelihoods.org/pip/pip/tho2-fao.doc) (emphasis in original)

Policy itself can be analysed conceptually at a number of different levels. In its broadest sense, the term policy can be used to include projects, programmes, strategies, plans and their implementation, in fact every element of public or collective decision-making. Although it is a rather artificial simplification, policy can be divided into content and the process of policy formulation, in other words

the way in which that content is arrived at. The way in which policy is implemented can change the effective content

of policy, either because policy interactions have not been fully understood, or because the policy is subverted by those responsible for implementing it.

discs definitions good

The DISCS is the official DoD school for educating the personnel who will implement the planSAMM (Security Assistance Management Manual, executive guidance on security assistance adminsitered by the Defense Security Cooperation Agency (DSCA)) No Date, definition of the Defense Institute of Security Cooperation Studies (DISCS), https://www.samm.dsca.mil/glossary/defense-institute-of-security-cooperation-studies-discs

The centralized DoD school for the consolidated professional education of personnel involved in security assistance management. DISCS is located at Wright-Patterson Air Force Base, Ohio, and provides an array of resident and nonresident instruction for both USG and foreign government military and civilian personnel as well as for defense contractor and industry personnel.

samm definitions good

SAMM’s regulations are detailed & specific to arms salesDTIC 88 (Defense Technical Information Center, “DoD Security Assistance Management Manual – Dtic.mil”, https://apps.dtic.mil/docs/citations/ADA283876, Published 10/1/88, Accessed 6/29/19, Lex RM)

The Security Assistance Management Manual (SAMM) provides, in a single volume, information and instructions needed at all levels within the Department of Defense to carry out responsibilities of the Secretary of Defense for administering U.S. Military Assistance and Foreign Military Sales Programs and related

activities. Subjects unique to these programs are covered in detail; those affecting program administration,

but which are of general application to other DoD programs, are referenced and summarized if appropriate. The SAMM has been structured to capitalize on the flow of security assistance functions and take advantage of the fact that many of the topics have a natural interrelationship and corresponding logical interaction.

Prefer the SAMM over the Green BookDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

While this textbook offers an overview of the FMS process, it is not intended to replace the SAMM or other official policy references. The SAMM and DSCA policy memoranda can be found on DSCA’s website: http://www.samm.dsca.mil/. In this dynamic national security environment, it is important to keep abreast of new or revised SA policies and procedures by periodically reviewing the SAMM and policy memoranda. There is also a convenient link to the SAMM and policy memoranda at the Defense Institute of Security Cooperation Studies’ (DISCS) website: http://www.discs.dsca.mil. These references are essential reading to understanding the FMS process. Much of the information discussed in Chapters 5 and 6 of this textbook correlates to Chapters 1-6 of the SAMM. Since DoD executes FMS on behalf of the State Department, it is also Security Cooperation, in addition to SA.

extentions

fms = agent salesNSPA & OCCAR are FMS eligible & other countries are FMS on an exceptional basisSAMM 18 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Memorandum 18-08: Agent Sales - New Multinational Foreign Military Sales (FMS) Initiative”, https://www.samm.dsca.mil/policy-memoranda/dsca-18-08, Published 7/6/18, Accessed 6/29/19, Lex RM)

The Department of State has determined that two International Organizations -- the NATO Support and Procurement Agency (NSPA) and the Organisation Conjointe de Coopération en matiére d'Armement (OCCAR) -- may act as Agents under section 3(a) [22 U.S.C. §2753(a)] of the Arms Export Control Act (AECA) to purchase defense articles and services through FMS on behalf of FMS-eligible NATO and European countries when certain conditions are met. Non-European countries may be considered on an exceptional basis at the recommendation of NSPA or OCCAR.

NSPA & OCCAR are FMS eligible & other countries are FMS on an exceptional basisSAMM 18 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Memorandum 18-08: Agent Sales - New Multinational Foreign Military Sales (FMS) Initiative”, https://www.samm.dsca.mil/policy-memoranda/dsca-18-08, Published 7/6/18, Accessed 6/29/19, Lex RM)

Although Agent Sales do not support subsequent blanket retransfers among the participants as is possible through Lead-Nation, they will allow the Agent access to, or temporary custody of, FMS-origin equipment to provide support through an FMS case without additional prior U.S. retransfer consent.

Agent Sales are FMS & are designated by a formal letter signed by an official from each principal to allowSAMM 18 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Memorandum 18-08: Agent Sales - New Multinational Foreign Military Sales (FMS) Initiative”, https://www.samm.dsca.mil/policy-memoranda/dsca-18-08, Published 7/6/18, Accessed 7/1/19, Lex RM)

Agent sales are those sales in which an international organization officially designated as an Agent is acting on behalf of one or multiple FMS-eligible countries or international organizations to procure defense articles and services. The countries or international organizations represented by an Agent in a particular sale are known as Principals. ASSIGNMENT OF AN AGENT Each Principal in an Agent Sale must provide a formal letter, signed by a government official with the authority to sign a Letter of Offer and Acceptance (LOA), indicating that either NSPA or OCCAR will act as its agent.

Agents have access to FMS-origin equipment to provide support through an FMS caseSAMM 18 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Memorandum 18-08: Agent Sales - New Multinational Foreign Military Sales (FMS) Initiative”, https://www.samm.dsca.mil/policy-memoranda/dsca-18-08, Published 7/6/18, Accessed 7/1/19, Lex RM)

DSCA is implementing a new FMS Initiative to permit Agent sales. Agent sales enable international organizations officially designated as Agents to act on behalf of one or multiple FMS-eligible countries or international organizations to procure defense articles and services. The Agent Sales initiative and the complementary Lead-Nation Procurement initiative reaffirm the United States' commitment to supporting partners' ability to procure U.S. defense articles and

services through innovative procurement processes. Agent sales are designed to facilitate multinational procurement and lifecycle support of services and high value systems to a greater degree than is possible through Lead-Nation Procurement. Agent sales will allow organizations permitted to act as Agents access to, or temporary custody of, FMS-origin equipment to provide support through an FMS case without additional prior U.S. retransfer consent. Preliminary guidance for implementing Agent Sales is provided in Attachment A. DSCA will provide final guidance after a trial period of implementing Agent Sales.

fms = training

FMS includes trainingDFAS 17 (Defense Finance and Accounting Service, Financial Management Systems Requirements Manual Strategy, Policy and Requirements Volume 18, Foreign Military Sales, April 2017, https://www.dfas.mil/dam/jcr:a63b8e9c-37ff-42db-8db2-ebb56f891255/DFAS7900_4_M_V18_FMS_042017.pdf) Heublein

The Department of Defense (DoD) has launched a major effort to reform the current foreign military sales (FMS) system and to ensure that this valuable program remains viable into the next millennium. This reform effort will focus on improving the FMS

system's performance and adopting better business practices wherever possible. The FMS program is the government-to-government method for selling United States (U.S.) defense equipment, services, and training. Responsible arms sales further national security and foreign policy objectives by strengthening bilateral defense relations, supporting coalition building, and enhancing interoperability between U.S. forces and militaries of friends and allies. These sales also contribute to American prosperity by improving the U.S. balance of trade position, sustaining highly skilled jobs in the defense industrial base, and extending production lines and

lowering unit costs for key weapon systems. The FMS Program is that part of Security Assistance authorized by the Arms Export Control Act (AECA) and conducted using formal contracts or agreements between the United States Government (USG) and an authorized foreign purchaser. These contracts, called Letters of Offer and Acceptance (LOAs), are signed by both the USG and the purchasing Government or international organization; and provide for the sale of defense articles and/or defense services (to include training) usually from DoD stocks or through purchase under DoD managed contracts. As with all Security Assistance, the FMS program supports U.S. foreign policy and national security. This volume and other DFAS 7900.4-M volumes may be applicable to your system.

dcs = qpq

DCS is, by definition, conditional – the USFG is only involved in DCS by conditioning private sales on the acquisition of a license. Reducing DCS is, by definition, a conditional reduction.Tina Kaidanow (Former Acting Assistant Secretary, Bureau of Political-Military Affairs at the Department of State) June 2017 “Foreign Military Sales: Process and Policy” Testimony to Congress https://www.state.gov/foreign-military-sales-process-and-policy/

DCS

The first is Direct Commercial Sales. Generally in a DCS case, a foreign entity – be it a government, a corporation, or an individual – works directly with a partner in the U.S. defense industrial base to obtain equipment or services. Neither the U.S. military nor the U.S. government is directly involved in the sale or acquisition. If the articles or services in question constitute defense articles or defense services, as defined by the U.S. Munitions List and the ITAR, the State Department must authorize the transaction through a license or other form of approval. All such applications are reviewed under the CAT policy and other statutes or regulations as appropriate, and may include interagency review to ensure U.S. interests are properly protected. Depending on the nature of the transaction, the Department may convene an interagency working group to formulate policy recommendations on whether to grant the license or other form of approval. The composition of this group varies, but the main players include the Department and DoD. If the value of the license exceeds the levels identified in the AECA, the Department must notify the proposed license to Congress. Following State Department review, and, if required, the successful conclusion of Congressional notification, the Department may issue a license or otherwise approve the transaction.

Negotiations are part of DCSLMD 12 (LM Defense, LMD provides consulting and brokering services to help U.S. defense companies do business overseas with challenges, including complex business environments, complicated logistics, and unfamiliar foreign cultures; LMD services are designed to demystify the international sales process, identify opportunities, connect with potential customers, and navigate the logistics of international sales, “FMS vs. DCS”, http://lmdefense.com/foreign-military-sales/fms-vs-dcs/, Published 11/2/12, Accessed 6/25/19, Lex RM)Direct Commercial Sales Contract Issues: The Vendor negotiates with the Customer. The Customer assumes management responsibility. These activities represent overhead management costs to the Customer. The size and skill of the Customer contracting staff may be a limiting factor during procurement.

reduce = qual or quantReducing arms sales can be done in qualitative or quantitative terms, but most not exceed the level of those supplied in years past – prefer this ev, comes from the joint communique Hickey 86 (Dec. 1986, Dennis Van Vranken Hickey is a Foreign Policy Analyst and Assistant Professor of Political Science at Missouri State University, he has lived and taught in in the People’s Republic of China, “U.S. Arms Sales to Taiwan – Institutionalized Ambiguity”, https://www.jstor.org/stable/pdf/2644550.pdf?loggedin=true) MT

On August 17, 1982, President Ronald Reagan and the government of the PRC issued a joint communique focusing on the overall issue of continued U.S. arms transfers to the ROC. A passage from one particularly relevant paragraph, paragraph six, is quoted below : (6) The U.S. government states that it does not seek to carry out a long term policy of arms sales to Taiwan and will not exceed, either in qualitative or in quantitative terms, the level of those supplied in recent years since the establishment of diplomatic relations between the United States and China, and that it intends to reduce gradually its sales of arms to Taiwan , leading over a period of time to a final resolution .9 Taken at face value, the Joint Communique would appear to pledge the United States to eschew long-term arms sales to Taiwan, and to keep sales from exceeding either the quality or quantity of arms sold to Taiwan after the U.S. established diplomatic relations with the PRC. The Communique also apparently commits the United States to gradually reduce arms sales to Taiwan.

reduce ≠ courts The processes of the resolution exclude the courts- they lie in the purview of the DoD and DoSSAMM 2019 (Security Assistance Management Manual, chapter 1, https://www.samm.dsca.mil/chapter/chapter-1) Heublein

Congress authorizes and appropriates funds for the United States Government (USG)-financed portions of Security Assistance (SA). Congress has a keen interest in the sale and transfer of defense articles and services to foreign countries and international organizations. Executive Branch agencies such as the National Security Staff, the Office of

Management and Budget, the Department of the Treasury, and others have responsibilities related to SA. However, aside from the President, the principal legislated responsibilities fall to the DoS and the DoD. Under the FAA, AECA, and Executive Order 13637 the Secretary of State is responsible for continuous supervision and general direction of Security Assistance programs. This includes determining whether (and when) there will be a program or sale for a particular country or activity (to include International Military Education and Training (IMET)) and, if so, its size and scope. It also includes the determination of budget requests and

allocation of funds for military assistance. The DoS reviews and approves export license requests for direct commercial sales of items on the United States Munitions List (USML) of the International Traffic in Arms Regulations

(ITAR). The DoS also reviews and approves third party transfers of exported defense articles and services. The DoS ensures FAA, section

503 (22 U.S.C. 2311) eligibility and obtains the assurances from recipient countries and organizations required by

FAA, section 505 (22 U.S.C. 2314) prior to most grant transfers of defense articles. The DoS prepares the Mission Strategic Resource

Plan (MSRP) and reviews and submits to Congress the Congressional Budget Justification (CBJ), which includes an annual estimate of

the total amount of sales and licensed commercial exports expected to be made to each foreign nation as required by AECA 25(a)(2) (22 U.S.C. 2765(a)(2)), and annual arms sale proposal (Javits Report) as required by A

“The” means aff fiat must include congress and the executiveMerriam-Websters, 2010 (Online dictionary)

used as a function word before a noun or a substantivized adjective to indicate reference to a group as a whole

Courts can’t reduce—they rely on acquiescence.Hanson et al, 2006 (Jon D. Hanson, professor at Harvard Law School; and Adam Benforado, Frank Knox Fellow at Cambridge University, “The drifters: Why the supreme court makes justices more liberal” January/February, online)

It would be a mistake to believe that the only situation that influences justices comes from within the Supreme Court building or individual judges’ limited spheres of interaction. The mechanisms designed to keep the judiciary independent of the other branches of government are necessarily incomplete, and there is good evidence that judges frequently interpret laws in ways that align with the particular policy desires of sitting members of Congress and the current president. This is not surprising given the forces that Congress and the president can bring to bear on the judiciary—including limiting or even stripping jurisdiction in certain areas, altering the size of federal courts, and instituting impeachment hearings. Just as important is the fact that the court cannot implement its orders without the acquiescence and assistance of other government actors. In addition, lower-court judges may be constrained by pressures not to be overruled by higher courts or the need to stake out particular positions in order to improve their chances of promotion within the judiciary.

ccl/dual-use

The 600 series & spacecraft-related items are ECCNNoah 19 (David Noah, Noah is an employee of the BIS, the BIS is the Bureau of Industry & Security, “USML vs. ECCN: What's the Difference?”, https://www.shippingsolutions.com/blog/usml-vs-eccn-whats-the-difference, Published 4/1/19, Accessed 6/28/19, Lex RM)

Look first within the new 600 series entry under the specific category for your products. These are items that used to be on the USML but were moved to the CCL as part of the export reform efforts. Next, look at spacecraft-related items or what the USML refers to as the 9x515 ECCNs, where the x represents the five product groups: A–E. If your item is not

described in the 600 series codes or the 9x515 ECCNs, determine whether it falls within the catch-all paragraph of these classifications as parts, components, accessories or attachments specially designed for items in that specific ECCN. If your product is not listed in the two above, look in the CCL for dual-use items.

The USML is distinct from ECCN’s which are dual useNoah 19 (David Noah, Noah is an employee of the BIS, the BIS is the Bureau of Industry & Security, “USML vs. ECCN: What's the Difference?”, https://www.shippingsolutions.com/blog/usml-vs-eccn-whats-the-difference, Published 4/1/19, Accessed 6/28/19, Lex RM)

In simplest terms, the USML is a list of defense articles and services that are specifically designed, developed,

configured, adapted or modified for a military application and don’t have a predominant civil application or civil

performance equivalent; have significant military or intelligence applicability; and could be classified as a defense article or defense service. The USML list can be found in 22 C.F.R. Chapter I, Subchapter M, Part 121. The USML is divided into 16 sections with seven sections reserved for future use; one section addressing the general USML list and the remaining sections further describing and adding to the USML. You need to have a registration number with the DDTC if you’re shipping these goods in the first place. If goods fall under jurisdiction of the State Department, you’re always going to need a license. You can find out more about the USML in the following articles: What Exporters Need to Know about the U.S. Munitions List (USML) Understanding ITAR—the International Traffic In Arms

Regulations How ECCNs Work An ECCN is an alphanumeric, five-character number classification found in the Commerce Control List of the Export Administration Regulations to identify dual-use items for export control purposes. You can find out more about ECCNs and how they are classified at the ECCN page on the BIS website.

ECCNs are in the CCL – explodes the topic – there’s ten categories which each have 5 subsetsNoah 19 (David Noah, Noah is an employee of the BIS, the BIS is the Bureau of Industry & Security, “USML vs. ECCN: What's the Difference?”, https://www.shippingsolutions.com/blog/usml-vs-eccn-whats-the-difference, Published 4/1/19, Accessed 6/28/19, Lex RM)

All ECCNs are listed in the Commerce Control List (CCL), which is divided into 10 categories. Each category is subdivided into five product groups. The first character of the ECCN identifies the broader category to which it belongs and the second character identifies the product group (BIS).

cancel/suspend

US Government initiated cancellations are governed by the standard terms and conditions of the LOA associated with the saleSAMM (Security Assistance Management Manual) 2019 “Chapter 6: Foreign Military Sales Case Implementation and Execution” https://www.samm.dsca.mil/chapter/chapter-6

C6.8.2. USG-Requested Case Cancellations. In accordance with the LOA Standard Terms and Conditions (See Figure C5.F4.), the USG may cancel a case (or any part of a case) when U.S. national interest requires. The amount of administrative charges assessed against cases cancelled by the USG must be approved by DSCA (Directorate of Business Operations (DBO) Financial Policy & Analysis (FPA) Division) even if the proposed amount is $0.

Reductions would involves terminating LOA’s prior to delivery or performance of defense servicesSAMM (Security Assistance Management Manual) 2019 Figure C5.F4 “Letter of Offer and Acceptance (LOA) Standard Terms and Conditions” in Chapter 5: FMS Case Development https://www.samm.dsca.mil/chapter/chapter-5#C5.F4.

Under unusual and compelling circumstances, when the national interest of the U.S. requires, the USG reserves the right to cancel or suspend all or part of this LOA at any time prior to the delivery of defense articles or performance of defense services. The USG shall be responsible for termination costs of its suppliers resulting from cancellation or suspension under this section. Termination by the USG of its contracts with its suppliers, other actions pertaining to such contracts, or cessation of deliveries or performance of defense services is not to be construed as cancellation or suspension of this LOA itself under this section.

The SAMM outlines the process for suspending and cancelling DISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

Security Cooperation Program Suspensions

Security cooperation programs may be suspended by the Department of State (DoS) for various reasons, as described in Chapter 2 of this textbook and the SAMM C6.6. If the DoS determines that it is necessary to suspend security cooperation to a particular country, it issues guidance for execution. Upon receipt of this guidance, the Defense Security Cooperation Agency (DSCA) issues appropriate instructions to the implementing agency informing the Combatant Commander and the Security Cooperation Organization (SCO).

The DoS may direct that all deliveries of defense articles to the suspended country be stopped immediately. Materiel is not released to the country’s freight forwarder or to the country. In the absence of such direction, materiel support cases implemented prior to the effective date of sanctions are allowed to continue regardless of term. New LOAs are not signed. If procurements have started but

contracts have not been awarded, the IA provides details to DSCA and requests guidance. Contracts that have been awarded should continue. However, when items are ready for delivery, DSCA issues guidance on possible diversion of the materiel to another country, to the DoD itself, or to storage consistent with DoS guidance.

If the DoS so directs, shipments of defense articles, where the materiel is under USG control, are not loaded at the ports of embarkation. Materiel already in route to the country is not delivered; it is retained under USG control. These articles are stored by the appropriate DoD component until DSCA issues further direction.

Materiel ready for shipment from a contractor may be shipped to a DoD facility for segregated storage to await DSCA disposition instructions. If economical, the materiel may be stored at the contractor’s facility. The purchaser is responsible for any storage fees if the title has passed. Any requisitions submitted against either a Cooperative Logistics Supply Support Agreement (CLSSA) or a blanket order FMS case may be required to be held by the IA and not be filled. The DoS may extend a suspension to become a cancellation in accordance with AECA, Sections 2(b) and 42(e). DSCA directs case cancellation and appropriate contract actions to include termination. DSCA provides guidance on the disposition of items, funding, etc., after a case-by-case review.

Forum on the Arms Trade 2019 “High School Policy Debate Resources - 2019-2020” https://www.forumarmstrade.org/hspolicydebate.html

The Foreign Military Sales (FMS) program manages government-to-government purchases of U.S. defense articles and defense services that are on the U.S. Munitions List (USML) for export to foreign countries. The Direct Commercial Sales (DCS) program regulates U.S. companies' international sales of U.S. defense articles and defense services that are on the USML. The Foreign Assistance Act of 1961 and the Arms Export Control Act of 1976 provide the primary legal basis for the FMS and DCS programs, which require Congressional notification and other reporting steps.

What are the main legal means by which U.S. weapons are sold abroad?

There are now five main mechanisms by which U.S. weapons and military services are sold abroad: Foreign Military Sales (FMS), Foreign Military Construction Sales (FMCS), Excess Defense Articles (EDA) sales, Direct Commercial Sales (DCS), and Commerce Department 600 series sales. The first three mechanisms are government-to-government sales and the latter two are commercial arms sales. The Obama Administration split the control system for commercial arms sales into two separate programs starting in 2013 as part of its Export Control Reform Initiative (see below question for more information). In government-to-government sales, the U.S. government negotiates directly with the foreign government buying the weapons. The U.S. government often approves commercial arms sales, but these deals are negotiated between U.S. companies and foreign buyers.

condition/qpqCOMSEC/TRANSEC items cannot legally be sold without conditionsSAMM 4 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Memorandum 04-23: Communication Security (COMSEC)/Transmission Security (TRANSEC) Devices Sold via Foreign Military Sales (FMS) for Integration Into Multifunctional Information Distribution Systems (MIDS) Terminals - Note Requirement for Letters of Offere and Acceptance”, https://www.samm.dsca.mil/policy-memoranda/dsca-04-23, Published 6/8/4, Accessed 6/29/19, Lex RM)

The purpose of this memorandum is to provide LOA note wording to be used on FMS cases where COMSEC/TRANSEC devices are being provided to a U.S. contractor for integration work to be performed at a U.S. location. This note does not alleviate the requirement for a third party transfer approval from the Department of State should the items go beyond a single transfer to one U.S. contractor. The attached table provides specific text for this new note and indicates when the note should be included on LOAs, Amendments, and Modifications. This new note is incorporated in Table C5.T5. of the SAMM (SAMM E-

Change 13) and should be used on any future cases. The note requires that certain conditions be met before the COMSEC/TRANSEC items in question can be transferred. The Military Departments and other Implementing Agencies who might provide these items should provide DSCA/P3- Weapons Division with information on how they will implement the requirements in this note.

Multiservice LOAs require internal negotiation, coordination, and consultation before an LOR can be finalized for an FMS saleSAMM 4 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Memorandum 0: Guidance for Multi-Service Letter of Offer and Acceptance (LOAs)”, https://www.samm.dsca.mil/policy-memoranda/dsca-04-26, Published 6/24/4, Accessed 6/29/19, Lex RM)

2. Communication (USG and Foreign Purchaser): Communication and information exchange is key to the success of a Multi-Service LOA. All MILDEPs/Agencies involved in the case are responsible for ensuring proper coordination and communication of case-related material or issues throughout the pre-LOR, development, implementation, execution, and closure phases of the FMS case. The need for case reconciliation throughout execution is paramount. The Implementing Agency is responsible for ensuring this occurs. Guidelines for communication with the FMS purchaser will be established at the pre-case meeting. The MILDEP/Agency having technical and procurement authority for the defense articles/services shall provide the technical and programmatic briefings to the purchaser. Pricing and

delivery information provided to the Case Manager may only be altered through prior coordination with the Line Manager(s). Under no circumstances will pricing or technical information be released to the foreign purchaser without prior consultation with and concurrence from the MILDEP/Agency that has cognizance over the item. Each MILDEP/Agency will remain responsible for proper reviews and approvals before authorizing release of that information. The Implementing Agency must allow adequate processing time for this additional coordination.

a2 conditions/qpqReductions of arms sales grounded in existing legislative conditions on arms sales are topicalCongressional Research Service 19 (May 6, 2019, Congressional Research Service, “U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions”, https://fas.org/sgp/crs/weapons/IF11197.pdf) MT *trigger warning: Rape and torture

Even if poorly enforced, all arms sales have some condition tied to it

How does the current Administration’s conventional arms transfer policy address human rights considerations? Pursuant to a national security presidential memorandum of April 19, 2018, U.S. arms transfer decisions must take into consideration several factors, including “human rights and international humanitarian law.” Specified considerations include the risk that an arms transfer would contribute to abuses of human rights, including acts of gender-based violence and acts of violence against children. The memorandum prohibits transfers of conventional arms if the U.S. government has “actual knowledge at the time of authorization” that such a transfer “will be used” to commit genocide, crimes against humanity, or certain human rights violations in breach of the Geneva Conventions. How does U.S. policy guidance on arms sales address human rights consideration? The Security Assistance Management Manual (SAMM) provides the U.S. Department of Defense (DOD) with policy guidance for executing arms sales. Among its provisions, the SAMM requires senior U.S. Embassy leadership to prepare a Country Team Assessment (CTA) that describes and justifies support for a proposed arms sale. Such CTAs accompany letters of request for certain significant arms sales, including those requiring congressional notification pursuant to Section 36 of the AECA. According to Table C5.T1 of the SAMM, all CTAs must include a description of the “human rights … record of the proposed recipient and the potential misuse of the defense articles in question.” How does the U.S. government verify that recipients use defense articles as authorized? Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22 U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of the FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense articles sold via FMS and DCS are subject to end-use monitoring (EUM) to ensure that recipients use such items solely for their intended purposes. DOD’s Defense Security Cooperation Agency manages the department’s Golden Sentry EUM program for defense articles sold via FMS. The State Department’s Directorate of Defense Trade Controls coordinates the Blue Lantern program, which performs an analogous function for items sold via DCS. Can arms embargoes be applied on the basis of human rights concerns? Human rights considerations are among the reasons the United States may invoke to impose an arms embargo on a foreign government and prohibit U.S. persons from selling or transferring defense articles to such governments. The International Traffic in Arms Regulations reflect the executive branch’s implementation of statutory provisions related to the export of defense articles, including those related to arms embargoes. In addition, the U.N. Security Council may apply an arms embargo against a country for human rights purposes; Section 5 of the United Nations Participation Act of 1945 (22 U.S.C. 287c) authorizes the President to implement such sanctions. Do the Leahy Laws apply to arms sales? The U.S. “Leahy Laws”—Section 620M of the FAA (22 U.S.C. 2378d) and 10 U.S.C. 362—prohibit U.S. security assistance to a foreign security force unit when there is credible information that such unit has committed a “gross violation of human rights” (GVHR)—described by the State Department to mean (1) torture, (2) extrajudicial killing, (3) enforced disappearance, or (4) rape under color of law (in which a perpetrator abuses their official position to commit rape). In order to comply

with the laws, the State Department leads a process of unit-level GVHR vetting before providing security assistance, including training and equipping. The Leahy Laws, however, do not define security assistance; in practice, the executive branch considers the term to mean support provided with U.S.- appropriated funds and, in its view, the restrictions are thus not applicable to FMS or DCS.

circumvention

circumvention - fyi

FMS and DCS are only 2 of 14 statutorally authorized security asstance programs that sell or transfer armsDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

Security Assistance

Over the years, security assistance has included programs authorized by the FAA or AECA. According to the FAA, as amended, the term “Security Assistance” means; military assistance, economic support fund, military education and training, peacekeeping operations, anti-terrorism assistance, sales of defense articles or services, export to or for the armed forces, police, intelligence or other international security forces of a foreign country. While many of these programs are administered by DoD, specifically by DSCA, they remain under the general control of the Department of State (DoS).

Foreign Military Sales

The foreign military sales (FMS) program is a non-appropriated program administered by DSCA through which eligible foreign governments purchase defense articles, services, and training from the USG. The purchasing government pays all costs associated with a sale. There is a signed government-to- government agreement, normally documented on a Letter of Offer and Acceptance (LOA) between the USG and a foreign government. Each LOA is commonly referred to as a “case” and is assigned a unique case identifier for accounting purposes. Under FMS, military articles and services, including training, may be provided from DoD stocks (Section 21, AECA) or from new procurement (Section 22, AECA). If the source of supply is new procurement, on the basis of having an LOA which has been accepted by the foreign government, the USG agency or MILDEP assigned cognizance for this case is authorized to enter into a subsequent contractual arrangement with U.S. industry in order to provide the article or service requested. FMS is a large program with the final FMS total for FY 2018 being $55.6 billion. This includes $4.4 billion in pseudo LOA agreements.

Foreign Military Construction Services

Foreign Military Construction Services (FMCS) is a non-appropriated program administered by DSCA and authorized by Section 29, AECA which designates the President to sell design and construction services to any eligible foreign country or international organization. The construction sales agreement and sales procedures generally parallel those of FMS and are usually implemented by the MILDEP civil engineering agencies.

Foreign Military Financing Program

The Foreign Military Financing Program (FMFP) is an appropriated program administered by DSCA that has undergone a variety of substantive and terminological changes over the years. At present, the program consists of congressionally appropriated grants and loans which enable eligible foreign governments to purchase U.S. defense articles, services, and training generally through FMS, or direct

commercial sales (DCS) for select countries. Foreign military sales credit (FMSCR) is authorized under the provisions of Sections 23 and 24, AECA, and originally served to provide credit (loans) as an effective means for easing the transition of foreign governments from grant aid, e.g., Military Assistance Program (MAP) and International Military Education and Training (IMET), to cash purchases.

Prior to FY 1989, the USG variously identified this financing program as the Foreign Military Sales Credit Program or the Foreign Military Sales Financing Program. In the FY 1989 Foreign Operations Appropriations Act (FOAA), Congress introduced a new title, the FMFP, and further identified the forgiven loan/forgiven credit component of the program as FMFP grants to distinguish them from repayable direct FMFP loans. Also, the terms non-repayable loans or non-repayable credits are often used by various security assistance organizations (including DSCA) in place of the term “FMFP grants.” Beginning in FY 1992, the Federal Credit Reform Act of 1992 (P.L. 101-508) changed the method of accounting and budgeting for all government loans, including FMFP loans issued under the AECA. This legislation provides a more accurate portrayal of the true cost of loans by providing new budget authority only for the subsidy element of the loan program and is the basis for the establishment of two new financial accounts:

• The first contains only the FMFP grant portion of the program administrative costs

• The second account provides the budget authority needed to fund the subsidy element of the proposed loan programs

While there are previously authorized FMFP loans still being repaid to the USG, the FMFP grant element (no repayment) has become the norm.

Over the past several of years, per the Presidential Policy Directive 23 of April 2013 (PPD 23), new FMF pilot programs have been established under the authority of Section 23 of the AECA—the Foreign Military Financing Challenge Fund (FMFCF) and Foreign Military Financing Regional Funds (FMFRF). The FMFCF is intended to provide one-time investments for special projects for a partner nation that has demonstrated political will to pursue reform efforts, contribute to common goals, and build lasting, self-sustaining capabilities. The FMFRF provides flexibility and responsiveness in implementing portions of the FMF program based upon geographic region. For example, in FY 2016, $5 million was provided for the FMF European Security Assistance Fund (ESAF). Through a competitive proposal system these FY 2016 ESAF funds are available for countries in Europe and Eurasia that have received bilateral FMF with the five fiscal years prior to submission. FMFP funding for FY 2018 was $5.7 billion. The FY 2019 Congressional Budget Justification (CBJ) request is for $5.3 billion. All FMFP appropriations are grants; however the FY 2019 CBJ requests this funding to be used for a combination of loans and grants to partner nations.

Leases

Chapter 6, AECA, authorizes the President to lease defense articles to friendly governments or international organizations for up to five years (renewable). This non-appropriated program is administered by DSCA. The law allows the lease of defense articles only for compelling foreign policy or national security reasons, and stipulates the recipient, with some exceptions, must bear the full cost of the lease. Furthermore, the U.S. must not need the leased articles during the lease period, and the U.S. retains the right to terminate the lease at any time. For the recipient country, leases may be cheaper

than purchasing the article outright, and they provide a convenient vehicle for obtaining defense articles for temporary use. Leases are executed through a lease agreement, with an associated FMS case to cover repair, training, supply support and/or transportation, if required.

Military Assistance Program

In FY 1990, the Military Assistance Program (MAP) was formally merged with the FMFP as Congress adopted an administration proposal for integrating all MAP grant funding into the appropriations account for the FMFP. DSCA administered this appropriated program. However, Congress has not appropriated MAP funds for subsequent fiscal years, and there is no interest in seeking any such funds for the future. This legislative change, therefore, had the dual effect of causing existing MAP-funded programs to lose their former identity and become FMFP-funded programs and establishing the FMFP as the major U.S. financing program for the acquisition of U.S. defense articles and services by foreign governments.

MAP remains as a current security assistance program because the MAP-provided articles remain throughout the world. As such, these articles retain their requirements for end-use monitoring (EUM), their return to the USG when no longer needed, and the requirement to return to the USG any proceeds from a sale to a third country or scrapping.

International Military Education and Training

The International Military Education and Training (IMET) program provides grant financial assistance for training in the U.S. and, in some cases, in overseas facilities to selected foreign military and civilian personnel. In earlier years, grant aid training of foreign military personnel was funded as part of the MAP appropriation. Starting with FY 1976, a separate authorization for IMET was established in Section 541, FAA. DSCA administrates this appropriated program. Although historically a relatively modest program in terms of cost, both the President and Congress attach significant importance to this program. The recipient countries, likewise, rely heavily on this grant program and in many cases, this program serves as the only method to receive training from the U.S. military.

At a time of declining foreign aid budgets, IMET advances U.S. objectives on a global scale at a relatively small cost. In many countries, having a core group of well-trained, professional leaders with firsthand knowledge of America will make a difference in winning access and influence for our diplomatic and military representatives. Thus, a relatively small amount of IMET funding will provide a return for U.S. policy goals, over the years, far greater than the original investment.

In 1980, Section 644(m)(5), FAA, was amended to authorize IMET tuition costing in terms of the additional costs that the USG incurs in furnishing such assistance. Section 21(a)(1)(C), AECA, was also amended to allow IMET recipients to purchase FMS training on an additional cost basis. The practical effect of these changes was to substantially reduce tuition costs for IMET-funded students, thereby increasing the amount of training an eligible country can obtain by using both national funds for FMS purchases and also using alloted IMET grant funds.

Expanded IMET

The FY 1991 Foreign Operations Appropriation Act (FOAA) introduced an IMET initiative via a Senate-proposed earmark of $1 million to be used exclusively for expanded IMET courses for foreign officers.

Congress later allowed this initiative to include civilian managers and administrators of defense establishments. The focus of such training is on developing professional level management skills, with emphasis on military justice systems, codes of conduct, and the protection of human rights. Congress amended Section 541, FAA to permit non-Ministry of Defense civilian government personnel to be eligible for this program, if such military education and training would:

• Contribute to responsible defense resource management

• Foster greater respect for and understanding of the principle of civilian control of the military

• Contribute to cooperation between military and law enforcement personnel with respect to counter-narcotics law enforcement efforts

• Improve military justice systems and procedures in accordance with internationally recognized human rights

In FY 1993, Congress further extended this expanded IMET (E-IMET) program to also include participation by national legislators who are responsible for oversight and management of the military. Through P.L.104-164, Congress again amended the E-IMET program authority in 1996 to also include non-governmental organization personnel.

The IMET funding for FY 2016 was $108 million. The IMET funding requested for FY 2017 was $110 million. In the 2018 Consolidated Appropriations Act Congress appropriated $111 million for IMET for 2018. The FY 2019 Congressional Budget Justification requests $95 million for this program.

Drawdowns & Special Presidential Waiver Authority

During a crisis, Section 506, FAA, authorizes the President to provide USG articles, services, and training to friendly countries and international organizations at no cost, to include transportation, spares, and training. There is a $100 million ceiling per fiscal year on articles, services, and training provided for military purposes and another fiscal year ceiling of $200 million for articles, services and training required for non-military purposes such as disaster relief, nonproliferation, anti-terrorism, counter-narcotics, refugee assistance, and Vietnam War-era missing in action/prisoners of war (MIA/ POW) location and repatriation. When emergency support for peacekeeping operations is required, Section 552(c)(2), FAA, separately authorizes the President to drawdown up to $25 million per fiscal year in USG articles and services from any agency. Special drawdown authorities have been annually legislated in the State Department and Foreign Operations Appropriation Acts (S/FOAA) to include $30 million in support for the Yugoslav International Criminal Court. When the USG avails DoD defense articles, services, or training via drawndowns; DSCA administers these non-appropriated authorities.

Economic Support Fund

The Economic Support Fund (ESF) is authorized by Chapter 4 of Part II of the FAA. ESF is an appropriated program administered by the U.S. Agency for International Development (USAID). Congress established this fund to promote economic and political stability in areas where the U.S. has special political and security interests and where the U.S. has determined that economic assistance can be useful in helping to secure peace or to avert major economic or political crises. ESF is a flexible economic instrument available on a grant basis for a variety of purposes, including balance of payments support, infrastructure, and other capital and technical assistance development projects, in addition to funding a

variety of programs to enhance political stability. In earlier years, the ESF program included concessional (i.e., low interest rate) loans as well as grants; recently all ESF funds receive allocation as grant assistance. While a substantial amount of these ESF grants are used to provide balance of payments, the ESF also provides for programs aimed at primary needs in health, education, agriculture, and family planning. Where long-term political and economic stability is the primary concern, ESF finances projects that meet the basic needs of the poor.

The ESF for FY 2016 totaled $4.49 billion. The ESF requested for FY 2017 was $6.08 billion. In the 2018 Consolidated Appropriations Act Congress appropriated $1.816 billion for ESF for 2018. The FY 2019 Congressional Budget Justification requests for economic and development assistance through a consolidated account- the Economic Support and Development Fund (ESDF)-that will replace the separate account for the Economic Support Fund (ESF) and consolidate it with other program accounts. The FY 2018 request for this consolidated fund is $4.9 billion. For FY 2019, the Congressional Budget Justification request is at $5.06 billion. All EDSF appropriations are grants.

Peacekeeping Operations

Peacekeeping Operations (PKO) is an appropriated program authorized by Chapter 6 of Part II of the FAA. For several years, PKO provided funds for the Multinational Force and Observers (MFO), which implemented the 1979 Egyptian-Israeli peace treaty, and the U.S. contribution to the United Nations Force in Cyprus (UNFICYP). Subsequent funding has been provided to support peacekeeping efforts in the Balkans, East Timor, sub-Saharan Africa, and lately in the Darfur region of the Sudan, South Sudan, and Somalia.

Global Peace Operations Initiative

Global Peace Operations Initiative (GPOI), which has become the principal PKO program, was originally a Presidential initiative in coordination with other G-8 countries to increase the capacity of selected countries to deploy in support of international peacekeeping operations. It was envisioned as a five-year program (FYs 2005-2009) to train seventy-five thousand troops worldwide, with emphasis in the Africa region and building an African command headquarters capability. GPOI is to support the deployment of peacekeepers by providing equipment, transportation, training, and sustainment in the field. Remaining a DoS program requiring DoD support, GPOI subsumed the previous SA-funded PKO Africa Contingency Operations Training and Assistance (ACOTA) program and the FMFPfunded Enhanced International Peacekeeping Capabilities (EIPC) program. The ACOTA term is still used when referring to the Africa training component of GPOI.

The FY 2016 PKO fund was $600 million. All PKO appropriations for FY 2016 totaled $600 million. In the 2018 Consolidated Appropriations Act Congress appropriated $213 million for PKO for 2018. The FY 2019 Congressional Budget Justification requests $291 million. All PKO appropriations are grants managed by the DoS.

International Narcotics Control and Law Enforcement

The International Narcotics Control and Law Enforcement (INCLE) program is an appropriated grant program which the DoS administers. Authorized by Section 481, FAA, INCLE is intended to suppress the worldwide illicit manufacture and trafficking of narcotic and psychotropic drugs, money laundering, and precursor chemical diversion, and the progressive elimination of the illicit cultivation of the applicable

crops. Recently, the elimination of related narco-terrorism has been included. This program can include the purchase of defense articles, services, and training. This is similar to the authorized and funded programs within DoD and the Departments of Justice and Homeland Security. In FY 2017, DoS received $1.2 billion for the INCLE program. The 2018 Consolidated

Appropriations Act appropriated $951 million for INCLE. For FY 2019, the Congressional Budget Justification requests $880 million for this program.

Nonproliferation, Antiterrorism, Demining, and Related Programs

The DoS administers a series of appropriated grant programs collectively known as the Nonproliferation, Antiterrorism, Demining, and Related (NADR) programs. Part II, Chapters 8 and 9 of the FAA, and Section 504 of the FREEDOM Support Act authorize NADR. Additionally, Section 23, AECA, for NADR focuses on demining activities, the clearance of unexploded ordnance, the destruction of small arms, border security, and related activities. Related defense articles, services, and training can be provided through this program. U.S. funding support for the International Atomic Energy Agency and the Comprehensive Nuclear Test Ban Treaty Preparatory Commission is provided through this program. The DoD role in this program is that DoS can purchase demining, unexploded ordnance clearance, and anti-terrorism systems with this funding.

In FY 2016, NADR funding was $885 million. For FY 2017, this program received $970 million. In the 2018 Consolidated Appropriations Act, Congress appropriated $655 million for NADR for 2018. The FY 2019 Congressional Budget justification requests is $690 million.

Direct Commercial Sales

Direct Commercial Sales (DCS) are commercial exports of defense articles, services, and training licensed under the authority of Section 38, AECA, made by U.S. defense industry directly to a foreign government. Unlike the procedures employed for FMS, DoD does not administer DCS transactions and a DCS sale does not normally include a government-to-government agreement. Rather, the DoS Directorate of Defense Trade Controls (PM/DDTC) implements the required USG controls through licensing. The International Traffic in Arms Regulations (ITAR) [22 CFR 120-130] contains the dayto- day rules and procedures for Direct Commercial Sales.

Of note, not all license approvals will result in signed contracts and later actual deliveries. Like FMS, DCS deliveries are likely to take place years after U.S. industry obtains the export license from PM/DDTC and the interested parties sign the commercial contract.

Other Security Assistance Programs

Excess Defense Articles

Excess defense articles (EDA) identified by the MILDEP or DoD agency are authorized for sale using the FMS authority in Section 21, AECA, and FMS processes identified within the SAMM for property belonging to the USG. Prices range from five to fifty percent of original acquisition value, depending on the condition of the article.

Additionally, Section 516, FAA, authorizes the President to transfer EDA on a grant basis to eligible countries (annually identified within a joint DoD/DoS letter to Congress). While EDA can be transferred

at no-cost, the recipient must typically pay for any transportation or repair charges. Under certain circumstances, transportation charges may be waived, with the cost absorbed by DoD appropriated funds.

Third-Country Transfers

Section 3(d), AECA, authorizes the President to manage and approve the transfer of U.S.-origin defense articles from the original recipient country to a third country. Requests for third-country transfers are normally approved if the USG is willing to conduct a direct transfer to the third-country. Countries must obtain third-country transfer authority in writing from the DoS in advance of the proposed transfer. This applies to all U.S.-origin defense articles regardless of the method of original transfer from the USG or U.S. industry. More can be found on this subject in the Chapter on End-Use Monitoring and Third Party Transfers.

circumvention – charts/tablesWe’ll submit this slide from an official 2018 lesson in an introduction to security cooperation management course at the DSCA – FMS and DCS are distinct programs Byron Hinrichsen (Instructor of Security Cooperation Management, DoD Acquisition Program Management Level II Certification at the Defense Security Cooperation Agency (DSCA)) October 2018 “Introduction to Security Cooperation Management Lesson #0107” https://www.ndtahq.com/wp-content/uploads/2018/10/Slides-Hinrichsen-DSCA.pdf

There’s 12 major categories – we’ll insert this tableSAMM 2003 (Security Assistance Management Manual available on the DSCA website, Defense Security Cooperation Agency, the DSCA is part of the DoD [Department of Defense] & provides financial and technical assistance, transfer of defense material, training and services to allies, and promotes military-to-military contacts, “Security Assistance Overview”, https://www.samm.dsca.mil/sites/default/files/2003%20SAMM/2005-06-01%20-%202003%20SAMM.pdf, Pulished 10/3/3, Accessed 7/1/19, Lex RM)

C1.1.2. Types of Security Assistance. Table C1.T1. outlines some of the major types of Security Assistance and identifies the department (Department of Defense or Department of State (DoS)) that administers the program. Each program or activity is described in more detail in later chapters of this Manual.

circumvention - generalFMS and DCS aren’t the only means of arms sales Rachel Stohl (senior analyst at the Center for Defense Information (CDI)) 2016 “Arms Embargos and Arms Sales Codes of Conduct”, Arms Control Association, Accessed at: https://www.armscontrol.org/taxonomy/term/39?page=1 Accessed on: 6/25/19] KKL

U.S. conventional arms export policy is codified in Presidential Decision Directive 34, set by President Bill Clinton in 1995. This

directive guides U.S. arms exports decisions and establishes the foreign policy goals for U.S. conventional arms transfers. These include: • Ensuring that U.S. military forces enjoy technological advantages over potential adversaries; • Helping allies and friends deter or defend themselves against aggression, while promoting interoperability with U.S. forces when combined operations are required; • Promoting regional stability in areas critical to U.S. interest, while preventing the proliferation of weapons of mass destruction and their missile delivery systems; • Promoting peaceful conflict resolution and arms controls, human rights, democratization, and other foreign policy objectives; • Enhancing the ability of the U.S. defense industrial base to meet U.S. defense requirements and maintain long-term military technological superiority at lower costs. Still, the United States cannot necessarily sell weapons to any country that meets one of these

conditions. Arms exports also must be consistent with three crucial laws and two implementing regulations. The 1979 Arms Export Control Act (AECA) is one of the crucial laws. This statute stipulates the purposes for which weapons may be transferred (self-defense, internal security, and UN operations) and establishes the process by which the executive branch must give Congress advance notice of major sales. The AECA also requires a series of quarterly and annual reports from the Departments of Defense and

State to Congress on overseas sales activity. Executive Order 11958 delegates responsibility for the implementation of the AECA primarily to the State and Defense Departments. At the State Department, the Directorate of Defense Trade Controls develops

and updates the International Traffic in Arms Regulations (ITAR), which implements the AECA. These regulations contain a U.S. munitions list that covers all weapons regulated by the State Department. They also list those countries that are ineligible to receive weapons under U.S. law. A second essential law is the 1961 Foreign Assistance Act, which guides provision of economic and military assistance to foreign governments. For example, this act requires that weapon exports not undermine long-term security and stability, weaken democratic movements, support military coups, escalate arms races or exacerbate ongoing conflicts. Nor are the exported weapons supposed to cause arms buildups in unstable regions or be used to commit human rights abuses. The

third major law is the 1970 Export Administration Act, which governs shipments of dual-use goods, technology and

information with both military and civilian uses. The act lapsed in 1994 but has been retained under the emergency powers of the president. It is administered by the Department of Commerce through the Export Administration Regulations (EAR), which govern the sales activities of exporters of these items, as ITAR does for munitions. The EAR contain the Commerce Control List, which includes certain ballistic missile production technologies, dual-use chemicals, shotguns, and police

equipment. These laws govern many different types of arms sales and military assistance programs. The largest sales programs are: • Foreign Military Sales (FMS): government-to-government sales negotiated by the Pentagon , in which

the weapons come from existing Pentagon stocks or new production; • Direct Commercial Sales (DCS): arms sales concluded between U.S. weapons manufacturers and foreign clients managed by the State Department. The largest military assistance programs are: • Excess Defense Articles (EDA): surplus or obsolete U.S. weapons given away for free or at a dramatically reduced cost to foreign governments; • Foreign Military Financing (FMF): grants to foreign governments that are used to purchase weapons, training, and other defense articles and services from the United States; • International Military Education and Training (IMET): grants for members of foreign governments and militaries to participate in any of more than 2,000 courses in U.S. military management and technical training. Although much smaller in dollar value, the United States also offers military training separate from or part of other arms packages. Military training is an important foreign policy tool used to bolster support for U.S. values and interests in foreign governments and military institutions, as well as to establish common military goals, procedures, and mechanisms. The utilization of military training to build military and political relationships is part of an emerging trend that began at the end of the Cold War. In the last decade, the United States has trained more than 100,000 foreign soldiers, police, and civilians annually through these programs. Such training programs, which take place within the United States and in about 150

countries around the world, range from English-language training and counternarcotics strategies to preparation of forces for peacekeeping operations.

There’s 3 other major mechanisms for arms salesAbramson et al. 19 (Jeff Abramson, Abramson is a non-resident senior fellow for arms control and conventional arms transfers @ the Arms Control Association & manages the Landmine and Cluster Munition Monitor, the de facto monitoring regime for the Mine Ban Treaty and Convention on Cluster Munitions; Abramson served as a policy advisor and director to the secretariat of Control Arms, the global civil society alliance that championed the adoption of the Arms Trade Treaty and established global regulations for the arms trade & was former Deputy Director of the Arms Control Association and Managing Editor of their publication Arms Control Today, Rachel Stohl, Stohl is Managing Director and directs the Conventional Defense Program @ Stimson, was an associate fellow at Chatham House, the Royal Institute of International Affairs, was a senior analyst at the Center for Defense Information in Washington, DC, has been a consultant for many international organizations, including Oxfam, Project Ploughshares, SIPRI, the Small Arms Survey, and World Vision, has served as a Scoville Fellow at the British American Security Information Council in DC, has worked at the United Nations Center for Disarmament Affairs in New York and at the Program for Arms Control, Disarmament, and Conversion in Monterey, CA, was an adjunct professor in the Security Studies Program @ Georgetown University, was the consultant to the UN ATT process, was previously the consultant to the UN Group of Governmental Experts (GGE) on the Arms Trade Treaty in 2008 and the UN Register for Conventional Arms in 2009, & holds an M.A. in international policy studies from the Monterey Institute of International Studies and an honors B.A. in political science and German from the University of Wisconsin-Madison, William Hartung, Hartung is director of the Arms and Security Project @ CIP [Center for International Policy], served as the director of the Arms Trade Resource Center at the World Policy Institute & also worked as a speechwriter and policy analyst for New York State Attorney General Robert Abrams, H Shannon Dick, Dick is research analyst at the Stimson Center, where she directly supports the work of the Conventional Defense Program, focusing on issues pertaining to U.S. security assistance and the international arms trade, including policies guiding U.S. arms transfer decisions, efforts to prevent the recruitment and use of child soldiers, and opportunities and challenges presented by emerging weapons technologies; she holds an M.A. in Security Studies from Georgetown University & a B.A. in Political Science and Psychology @ USBerkeley, Seth Binder, Binder is the Advocacy Officer at the Project on Middle East Democracy (POMED) where he focuses on U.S. policy, security assistance, and arms sales to the Middle East and North Africa, was the Program Manager at the Center for International Policy for the Security Assistance Monitor program where he focused on U.S. security assistance and arms sales policy where, among others, he authored articles and publications on US security assistance to Palestine, Yemen, Israel, and Tunisia, and received his B.A. in History from Oberlin College and M.A. in International Relations from Syracuse University’s Maxwell School of Citizenship and Public Affairs where he received certificates in Advanced Study in Middle Eastern Affairs and International Counterterrorism, Allison Pytlak, Pytlak is a Program Manager in the disarmament program of the Women’s International League for Peace and Freedom,has nearly a decade of experience working in arms control and disarmament with direct participation in several prominent international advocacy campaigns. She most recently held the post of Policy and Advocacy Specialist with Control Arms, where she played a key role in the organization’s successful work to see the adoption of an international Arms Trade Treaty, received a bachelor’s degree in International Relations from the University of Toronto and a master’s degree, also in International Relations, from the City University of New York where her research focused on cyber

security, has published on conflict and security issues, as well as the role of civil society in multilateral affairs, and is an adjunct fellow of the Niskanen Centre researching cyber repression of human rights, Andrew Feinstein, Feinstein is Founding Director of Corruption Watch, an NGO that uses case studies of large-scale corruption to create policy proposals for the purpose of combating corrupt behavior by governments and corporations & was a former African National Congress (ANC) Member of Parliament in South Africa for 7 years, N.R. Jenzen-Jones, Jenzen-Jones is a military arms and munitions specialist and security analyst focusing on current and recent conflicts and emergent technologies, is the Director of Armament Research Services (ARES), has produced extensive research and analysis on a range of small arms and light weapons (SALW) and small and medium calibre ammunition issues, and has also provided technical assessments of incendiary weapons, cluster munitions, indirect fire artillery weapons, and conventional arms proliferation, maintains a broad focus on how weapon systems are selected, acquired, stockpiled, and employed examining the many facets of the arms trade, and is geared towards helping others understand the impacts and nuance of the military and technical factors at play, and is a certified armourer and ammunition collector, and a member of the International Ammunition Association (IAA), the European Cartridge Research Association (ECRA), the Society for Libyan Studies (SLS), the Ordnance Society (OS), and the International Ballistics Society (IBS), “Forum on the Arms Trade”, https://www.forumarmstrade.org/hspolicydebate.html, Updated 6/23/19, Accessed 7/1/19, Lex RM)

There are now five main mechanisms by which U.S. weapons and military services are sold abroad: Foreign Military Sales (FMS), Foreign Military Construction Sales (FMCS), Excess Defense Articles (EDA) sales, Direct Commercial Sales (DCS), and Commerce Department 600 series sales. The first three mechanisms are government-to-government sales and the latter two are commercial arms sales. The Obama Administration split the control system for commercial arms sales into two separate programs starting in 2013 as part of its Export Control Reform Initiative (see below question for more information). In government-to-government sales, the U.S. government negotiates directly with the foreign government buying the weapons. The U.S. government often approves commercial arms sales, but these deals are negotiated between U.S. companies and foreign buyers.

FMS is distinct from FMF, IMET, EDA, and leasesCRS 16 (Congressional Research Service citing DOD, “Security Assistance and Cooperation: Shared Responsibility of the Departments of State and Defense,” 4/4/16, https://www.everycrsreport.com/reports/R44444.html) Heublein

DOD defines security assistance as the group of State Department programs authorized by the 1961 FAA and the Arms Export Control Act of 1976 (AECA) that are administered by the Defense Security Cooperation Agency (DSCA). These programs are FMF and IMET, as well as three others that do not require appropriations: (1) Foreign Military Sales (FMS), through which foreign governments purchase defense articles and services with their own funds, (2) the leases of equipment, and (3) the provision of excess U.S. defense articles.

circumvention - fundingFMS and DCS are funded by recipient countries – they are managed by separate accounting proceduresDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

The FMS and DCS components of SA are normally funded by direct cash outlays of the purchasing countries. These two programs can also be funded using appropriated FMFP funds or, in the case of Building Partner Capacity (BPC) programs, DoD SC funds. Consequently, the FMS and DCS do not require Congressional budget authorizations or appropriations. Nevertheless, the financial activity generated by FMS cash purchases has a substantial impact on USG financial programs. Special accounting procedures have been instituted for the management of these funds , and FMS cash activities are documented in the annual U.S. budget in terms of the FMS Trust Fund. This trust fund will be furthered addressed later in Chapter 12 of this text, “Financial Management.”

circumvention – motivation – trump

Trump cares only for the economy – he’s circumvented conventional arms export policy and would exploit any loopholeWard, 5/24 [Alex, associate director in the Atlantic Council's Brent Scowcroft Center on International Security where he worked on military issues and US foreign policy, 5/24/19, ‘The US may use a loophole to sell billions in weapons to Saudi Arabia and the UAE” Vox, Accessed at: https://www.vox.com/2019/5/24/18638286/us-loophole-saudi-arabia-uae-

weapons-sale. Accessed on: 6/28/19] KKL

The US may use a loophole to sell billions in weapons to Saudi Arabia and the UAE It would let the Trump

administration circumvent Congress’s authority to approve or reject weapons sales. A fighter aligned with Yemen’s Saudi-led coalition-backed government shows Houthi rebel land mines the militia had recovered on September 22, 2018, in al-Himah, Yemen.

Andrew Renneisen/Getty Images The US plans to send billions of dollars in weapons to Middle Eastern allies — including Saudi Arabia — by declaring an emergency that experts say doesn’t really exist. Multiple reports

detail that Trump officials are considering using a legal loophole within days to export roughly $7 billion in arms to Saudi Arabia and the United Arab Emirates, both of which have waged a brutal war in Yemen against Houthi rebels for more than four years. The idea, pushed by Secretary of State Mike Pompeo and other top officials, would allow the administration to

circumvent Congress’s authority to approve or reject weapons sales. There is a provision in a weapons export law allowing the executive branch to sell arms without congressional sign-off if “an emergency exists which requires the proposed sale in the national security interest of the United States.” Administrations rarely invoke it ,

experts say, mainly because of how controversial it is and the high bar required to claim a dire situation exists. President George W. Bush used the provision in 2006 to send precision-guided weapons to Israel during the Israel-Hezbollah July War, but that was last time an administration took advantage of the loophole. President Donald Trump likely will claim that Saudi Arabia and the UAE need new munitions because they face repeated attacks

from Houthi rebels. However, the Yemen war has raged since 2015, with the US supporting the Saudi-led coalition’s side. It’s jarring now to say that an emergency exists after all this time, especially when the US previously sold weapons to the Saudis through the normal process. There’s also the fact that introducing more weapons to the war will likely worsen a catastrophic situation. The conflict has already claimed tens of thousands of lives; some estimates indicate that at least 60,000 people have died, though it’s hard to keep an accurate tally because of dangerous conditions in Yemen. Last August, the Saudi-led coalition carried out a horrific attack on a school bus where dozens of people, including 40 children, died. The US sending more munitions to Saudi Arabia and the UAE likely won’t do much to tip the scales of the fight — but could imperil the lives of millions of people in Yemen already suffering from wounds,

famine, and disease. “The Trump administration is manufacturing an emergency to push through the sale of deadly weapons to Saudi Arabia and the United Arab Emirates,” Scott Paul, a Yemen expert at the humanitarian group Oxfam America, told me. “Once again, the Trump administration is demonstrating that it values profit and its Gulf allies over resolving the world’s largest

humanitarian crisis.” The Trump administration knows Congress likely wouldn’t approve the deal News of the loophole plan comes at a particularly tense moment. The US and Iran, Saudi Arabia’s main regional rival, are locked in a potentially deadly standoff. Earlier this month, the Trump administration said it had intelligence showing that Iran planned to attack Americans in the Middle East. As a result, the US put an aircraft carrier, bomber planes, and anti-missile batteries in the region, though it’s not clear exactly where. The administration is even considering sending thousands of troops to the region, perhaps in an effort to deter an Iranian assault. Iran, meanwhile, told its proxies in Iraq to prepare for war if the US attacks, and has greatly accelerated low-enriched uranium production for its nuclear program (though it has not said that it plans to pursue a nuclear weapon). The weeks-long crisis has split Democrats and Republicans in Congress over just how forcefully the US should engage Iran right now, while Saudi Arabia has mostly pushed for America to seriously get involved. Lawmakers from both parties remain enraged with the Trump administration’s handling of the killing of Saudi journalist, dissident, and US resident Jamal Khashoggi last October. Despite ample evidence showing a planned, coordinated assassination, Trump did little to punish Riyadh other than impose a few sanctions. That wasn’t enough for many Democrats and Republicans, including reliable Trump allies. Sen. Lindsey Graham (R-SC), for example, told reporters on Thursday that he would “not do business as usual with the Saudis until we have a

better reckoning” with Crown Prince Mohammed bin Salman, the country’s de facto ruler who US spies say ordered the Khashoggi hit. The likely reason the administration wants to invoke the loophole is not that an emergency exists, then, but that Trump officials fear lawmakers

might shoot down the arms sale. “President Trump is only using this loophole because he knows Congress would disapprove of this sale,” Sen. Chris Murphy (D-CT), who first raised awareness of the administration’s plan, told the Wall Street Journal on Thursday. “It sets an incredibly dangerous precedent that future presidents can use to sell weapons without a check from Congress.”

Trump has long prioritized weapons sales over human rights Asked by reporters last November if he would stop a massive arms sale to Saudi Arabia over Khashoggi’s killing, Trump emphatically said no. “This took place in Turkey and to the best of our knowledge, Khashoggi is not a United States citizen,” he said in the Oval Office. “I don’t like stopping massive amounts of money that’s being poured into our country,” referring to his desire to sell $110 billion worth of weapons to Riyadh, adding that “it would not be acceptable to me.” Trump on possibility of punishing Saudi Arabia for apparently murdering a dissident journalist: "I don't like stopping massive amounts of money that's being poured into our country... they are spending $110b on military equipment and on things that create jobs for this country." Trump’s comments made one thing extremely clear: He cares much more about getting American companies paid

than defending human rights. It was perhaps one of Trump’s most honest articulations about how he conducts foreign policy: He won’t call out a country that infringes on human dignity as long as it’s willing to inject cash into the American economy. Partly for that reason, Trump has continued to strengthen America’s relationship with the Saudi regime despite its conduct in

Yemen, its stoking of tensions with Iran, and the Khashoggi murder. And now, with the impending use of the loophole, it appears Trump has literally put a price tag on the lives of those already suffering in the Saudi-led war. “Yemenis will continue to pay the price of the US’s indefinite and unconditional support of one side in their country’s horrific war,” Paul, the Oxfam expert, told me.

Trump uses baseless national security justifications to circumvent restrictions on executive authority. Burke and Matisek, 19 [Ryan, associate professor of Military & Strategic Studies at the U.S. Air Force Academy, and Jahara, Assistant Professor in the Department of Military and Strategic Studies at the US Air Force Academy, 2/15/2019, “EXECUTIVE ORDERS AND TROOPS ON THE BORDER: POLITICAL NORMS AND THE SECURITIZATION OF AMERICAN PROBLEMS”, Modern War Institute at West Point, accessed at: https://mwi.usma.edu/executive-orders-troops-border-political-norms-securitization-american-problems/] KKL

Congressional ignorance (or apathy) is precisely why the United States has morphed the military into a new twenty-first-century national security architecture in which everything can be an existential threat. Rosa Brooks astutely identified this growing issue in How Everything Became War and the Military Became Everything, where she described

how the US military is becoming an “all-purpose tool” for problems around the world. The same trend, it

appears, holds true for problems at home. The American defense enterprise has modernized and adapted to fit changing

times. Unfortunately, US defense policy and law governing the domestic use of the military lags. It only took one president motivated by partisan gridlock and a bedrock campaign promise to challenge tradition and buck the status quo. Unless Congress acts to bring modern American defense policies and laws into the twenty-first century, things like the use of executive orders to identify an existential threat by presidential decree will only continue. This is problematic because the use of executive orders to address national security problems is a new form of norm erosion, especially when Congress is fully capable of passing legislation to address threats to US security. For instance, Congress actually passed legislation regarding Chinese political operations in the United States, and appears primed to pass even more legislation to deal with Chinese espionage, to include even restricting Chinese students and their access, due to some of these students passing sensitive information and technology to Chinese intelligence. However, Congress is not fully to blame. Annoyed by

congressional inaction, President Trump has issued more executive orders—on average, per year—than every president since Jimmy Carter. Overreliance on executive orders can establish new norms of presidential conduct that skirt the normal democratic process. Norm erosion in presidential behavior is not a new phenomenon per se. President Franklin D. Roosevelt was the first president to serve more than two terms, breaking with tradition that was first established by George Washington. Several years later, Congress would eventually pass the Twenty-Second Amendment, formally

restricting presidents to two terms, as a response to Roosevelt’s breaking of the presidential tradition. The degradation of presidential norms becomes insidious, though, when a supposed national security threat can be declared a national emergency without any check on this power. Following a newly established precedent, future

presidents may continue leveraging the full extent of executive authority in their use of the military to address virtually any “threat.” Under the current national security architecture this is completely legal. Senator Marco Rubio recently described the slippery slope of over-securitizing threats, stating, “If today the national emergency is border security, tomorrow the national emergency might be climate change.” This is already within the realm of possibility given that a 2014 Department of Defense report noted that climate change is a future trend “that will impact our national security.”

Trump doesn’t take accountability for his actions – he’ll continue to unilaterally act without regard for consequencesMatthews 17 [Dylan, Vox Writer, 10/18/17, “Trump’s refusal to take responsibility is a deep moral failure” Vox, accessed at: https://www.vox.com/policy-and-politics/2017/10/18/16495288/trump-responsibility] KKL

President Trump doesn’t take responsibility. For anything. He didn't take responsibility for the death of Sgt. La David Johnson, a Green Beret killed during a counterterror operation on the border between Niger and Mali earlier this month. After going nearly two weeks without calling Johnson's loved ones, Trump told his pregnant widow, Myeshia Johnson, that her late husband "knew what he signed up for" — placing responsibility for his death not on Trump, his commander in chief, or the rest of the government, but on Sgt. Johnson

himself, for choosing to serve. When a Congress member who overheard the exchange publicized it, Trump denied it ever happened. Except Johnson's mother, who was also there, confirmed it did. Trump refused to even take responsibility for his own callous failure to

take responsibility. And this was hardly the first time. Trump didn’t take responsibility for the death of Army Specialist Etienne Murphy in Syria in May. Murphy’s mother, Sheila Murphy, told the Associated Press that she still has not heard from Trump, despite writing the president to tell him "some days I don't want to live." Trump did take the time to call the parents of Army 1st. Lt. Weston Lee. Murphy was black; Lee was white.

Trump didn’t take responsibility right after taking office, when a botched special operations raid in Yemen left a Navy SEAL and several civilians dead without any actionable intelligence to show for it. He took to Fox News to assert that the mission “started before I got here” and to blame “the generals” who “lost [Sr. Chief Petty Officer] Ryan [Owens].” He didn’t take responsibility for the safety of the country after a judge struck down his initial “travel ban” targeting some Muslim-majority countries, tweeting, “If something happens blame him and court system.” Just this past Monday, he refused to take responsibility for his failure to enact significant legislation on health care or taxes so far. "We're not getting the job done. And I'm not going to blame myself, I'll be honest," he said at a Cabinet meeting. "They're not getting the job done," he continued, referring to Republicans in Congress. On Tuesday, he refused to take responsibility for the effects of his executive actions to destabilize Obamacare, insisting on Twitter, “Any increase in ObamaCare premiums is the fault of the Democrats for giving us a ‘product’ that never had a chance of working.” And on. And on. And on. Trump is incapable of processing the idea that he might have failed There is a tendency when discussing Trump to exaggerate the beneficence and decency of past presidents to make the contrast starker. So let’s be clear: Trump is hardly the first American leader to fail to take responsibility, or to take too long to do so. It took nearly four years for President George W. Bush to concede that the war in Iraq was failing, fire Defense Secretary Donald Rumsfeld, and attempt a new strategy. Even then, he never forthrightly admitted that a war that killed nearly 270,000 people for no clear end was a mistake. President Bill Clinton did not admit that he contributed to the rise in mass incarceration until 14 years after he left office. And taking responsibility for your actions, especially belatedly, is of somewhat limited value if those actions were mistakes and are not followed up with effective corrective action. But it’s an important first step. “The buck stops here” is a cliché for a reason. And for presidents still in office, that attitude can lead to actual progress. President Obama, by his own admission, failed badly during the rollout of Obamacare in fall 2013, more grievously due to the failures of HealthCare.gov. But he took responsibility and fixed it, launching an unprecedented number of outside programmers and tech specialists to overhaul the site and get it in working order. "I take full responsibility for making sure it gets fixed ASAP,” Obama said at the time. And so he did. Here are a few other things Obama took responsibility for while in office: The failed Tom Daschle and Bill Richardson Cabinet nominations in 2009 The BP oil spill in 2010 Democrats’ loss of the House of Representatives in 2010 The attack on the US Consulate in Benghazi, Libya, in 2012 The VA scandal in 2014 Democratic losses in the 2014 midterms The death of two hostages in an operation against al-Qaeda in 2015 The Syrian government’s atrocities in Aleppo in 2016 What’s telling is that this included instances when Obama did not believe he made a mistake. As he said at the time, he had no reason to think the al-Qaeda compound targeted in 2015 had innocent hostages in it when he ordered the attack. His expression of sorrow at the Syrian government’s butchery was not followed by regret over his decision not to send ground troops or launch airstrikes against Bashar al-Assad’s regime. You can view this as hollow, as a failure to actually change in response to mistakes. But taking responsibility sometimes means bearing the weight of negative consequences of actions that you, nonetheless, do not regret. The horrors of Aleppo did not change Obama’s determination that further intervention against Assad would have done more harm than good (a conclusion shared by researchers the US Holocaust Museum commissioned to look at that decision). The deaths of the hostages did not mean the raid was not the

right decision at the time. But even if an action is, all told, still justifiable, its costs should weigh on the actor. He should feel the gravity of his role in what happened, and take seriously the human toll, even if his mind does not

change in response. Nowhere is this more important than in military affairs. Franklin Roosevelt needn’t have regretted D-Day to take

responsibility for, and feel the weight of, the 2,500 Americans killed during the Normandy landings. When presidents and commentators talk about the sacred and solemn duty of honoring wounded and dead soldiers, they’re not just speaking in clichés. They’re making a statement about the kind of moral psychology you must have to make regular decisions about death and war without growing emotionally calloused and inhumane. Trump has been very clear that he lacks that psychology, that kind of reverence and appreciation for the gravity of his actions. He cannot hold in his head at the same time the idea that he was right to have troops in Niger and that some of those troops died, and that he owes it to their families and the nation to understand and grieve that loss. He definitely appears incapable of considering that the mission itself might have been a mistake, that he himself may have screwed up. And if he can’t consider the possibility that he caused pain when he’s sending troops out to fight and die, how could he consider it when he’s making regulations that could cost people their health insurance? Or their clean air and water?

Trump ignores conventional norms of the executive and overreaches whenever he canWhittington 5/16 [Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University, 5/16/2019, “How Trump Will Weaken the Presidency”, Lawfare Blog, accessed at: https://www.lawfareblog.com/how-trump-will-weaken-presidency] KKL

On the formal dimensions of presidential power, Trump might well wind up weakening the presidency by overreaching. The president has made a habit of issuing executive orders, such as his travel ban and his swipe at sanctuary cities, without much planning or careful thought about either their legality or their policy efficacy. As a consequence, the Trump White House has created opportunities for opponents of his administration to exploit vulnerabilities

and encourage greater judicial scrutiny of how the president exercises his discretionary authority. The administration has repeatedly advanced policies, such as the declaration of a national emergency to fund a border wall, with the thinnest veneers of legal justification—veneers that the president himself, to the consternation of his lawyers, often strips away with his own words. As a result, the administration has ended up daring the courts to show the kind of deference traditionally

granted to presidents who have more carefully and more cautiously used the powers available to them. Now Trump has embarked on an unprecedented campaign of obstruction of congressional oversight that will likely force the courts to reevaluate the scope of executive privilege and the limits of legislative investigatory authority . It is a familiar refrain that bad cases make bad law. Legal rules that are drafted to account for unusual fact situations can deform the law in ways that make it less well adjusted to respond to more routine situations. Trump’s attempts to push his legal powers to their outermost extremes risk having the courts trim away those powers. In the past, presidents who have won the trust of judges and legislators have been accorded more practical

power to exercise discretion and to enjoy deference. With the loss of trust, that discretion is likely to be restricted. By persistently testing the limits of the president’s constitutional and legal powers, Trump forces his defenders to offer increasingly strained legal arguments to justify his actions. By declaring a national emergency where none exists and proposing to use funds to pay for “military construction projects” that have no military purpose, Trump dares the courts to call his bluff and expose the fact that his legal arguments are offered in bad faith. By declaring that, in his view, preexisting oversight efforts were “enough” and so the administration will be “fighting all the subpoenas,” he invites

Congress and the courts to assume that his resistance to congressional oversight is purely personal and has no firm basis in a reasonable desire to protect the institutional prerogatives of the executive branch .

circumvention – motivation - ecr

Empirics prove that the government responds to obstacles in arms sales with new pathways to sales Albright and Stricker 17(David Albright is founder and President of the non-profit Institute for Science and International Security, former contractor to the Environmental Policy Institute, the Congressional Research Service, the International Task Force on Prevention of Nuclear Terrorism, Los Alamos National Laboratory, and the International Atomic Energy Agency. Andrea Stricker provides policy guidance for Institute publications and develops recommendations for U.S. and international non-proliferation efforts, “U.S. Export Control Reform: Impacts and Implications for Controlling the Export of Proliferation-Sensitive Goods and Technologies, A Policy Document for the New President and Congress,” May 17, 2017, http://isis-online.org/isis-reports/detail/u.s.-export-control-reform-impacts-and-implications/) eks

The U.S. control system is complex. Authorities and control lists are delegated to multiple federal agencies, and the system was created largely piecemeal to prevent the spread of sensitive goods during the Cold War. Governmental and non-governmental analyses, along with the relevant exporting sectors of industry, have noted for decades serious problems with the system, including the slow pace of obtaining an export license, overregulation of small parts, the failure of the government to standardize and interconnect information technology (IT) systems, and

inefficiencies and redundancies in export law enforcement efforts. With these criticisms in mind, the Obama administration set out in 2009 to carry out a wholesale reform of the system and in 2010 launched the Export Control Reform Initiative (ECR Initiative). The ECR Initiative planned to create a single export licensing agency, merge commodity control lists into a single list, adopt a common IT system, and move most export enforcement efforts under the purview of a single agency. These so-called “four singles” were never achieved due to a shortage of time and a lack of Congressional support for carrying out a bureaucratic restructuring of this

scale. Several important and impactful reforms did occur, however, bringing the reforms part of the way to completion. The ECR Initiative at its core attempted to address the question of what the appropriate balance is between increasing U.S.

exports and trade and maintaining strict control of sensitive goods in order to enhance national security objectives. Overall, we assess that the reforms tilted the balance more toward increasing exports and trade at the expense of controls and national security. As a result of the reforms, thousands of items usable in military systems and equipment are now more readily available to long time U.S. allies, as well as to some countries of governance or transshipment concern. Little effort was devoted to better securing the most proliferation-sensitive goods. In response to the inherent question asked by the reforms: should the United States loosen controls on items that are being made available from other countries – the

answer reached appears to have been tilted to the affirmative. As a result, it is far from clear whether U.S. adversaries such as Iran and North Korea are now increasingly able to obtain sensitive parts and components to outfit their military and other sensitive programs. The export control reforms were announced by the Obama administration to Congress and the business community as an effort to fix overregulation of the most innocuous items and allow allies to obtain needed items more easily, while more tightly regulating the most sensitive goods. These goals are not problematic if the items truly are innocuous and the changes addressed legitimate concerns of the government, allies, and exporters. However,

the effort may have simply contributed to increasing the world’s supply of sensitive goods usable in military programs – and thereby increasing availability of such goods to adversaries . This result is likely to be at odds with overarching U.S. national security goals in the long term . Serious review is needed to answer important questions, such as: what damage, if any, has been done to national security objectives by the freer availability of goods usable in military equipment? Where are these goods today? Are they remaining with legitimate end users or are they being sent onward to proliferant states such as Iran, Syria, Pakistan, or North Korea? Are the goods being misused in countries favored by U.S. export control reforms? Is there a need to re-visit controls on some of the goods? What about the integrity of the process for determining the control status of goods in the reformed “catch and release” system? The Obama administration did not have to answer these questions through any substantive reporting or testimony during a review. It is now time for Congress to become involved to ensure that this review and reporting is performed by the

executive branch. The risks of not performing such a review may be that only a major scandal associated with the spread of deregulated goods would necessitate a review ipso post facto, which is not a preferable way to conduct policy.

circumvention – motivation - backlogForeign military sales are woefully inefficient – the government is desperately looking for a means to streamline the process Gould, 15 [Joe, staff reporter at Defense News, 2/23/15, “DSCA Reorganizing to be More Nimble, Defense News, accessed at: https://www.defensenews.com/digital-show-dailies/idex/2015/02/23/dsca-reorganizing-to-be-more-nimble/ Accessed on: 6/25/19] KKL

The Defense Security Cooperation Agency's (DSCA's) director, Vice Adm. Joseph Rixey, said buyers have many options outside the US from among the vendors arrayed at the massive IDEX show, where he spoke to a defense industry crowd. "It's pretty competitive out there,

so if you [have] a bureaucracy on something that can simply be [sold] by someone else, that's a problem ,"

Rixey said. "So how can we streamline what we do, or get a sense from the technology that's out there where we can relieve ourselves of the restrictions we have. It's a whole new ball game." Digital Show Daily: Complete

coverage from IDEX The most recent public triumph of an American competitor in the region was Egypt's decision to buy France's Rafale and multimission frigate in an arms package worth €5.2 billion (US $5.9 billion). Rixey declined to comment, but later acknowledged competition, "worldwide." "Just walk around this facility here," he said. "You can see it when you walk the floor here." The demand from Arabian Gulf countries in recent months has become all the more urgent in response to the Islamic

State threat, which has buoyed requests for small arms, ammunition, ordnance, counter-mortar radars and humvees. "Just imagine what you need for the counterterrorism fight, that's what we're seeing a lot of pressure on, and they need it immediately," Rixey said. Sign up for our Early Bird Brief Get the defense industry's most comprehensive news and information straight to your inbox Subscribe Historically, US foreign military sales held at roughly $12 billion per year between 2001 and 2005, when they began a

climb to $30 billion per year today. DSCA is working through a backlog of 12,000 open requests as an average of 140 new requests enter the system each month, Rixey said. "There are people running around with their hair on fire," in the organization, Rixey said. US officials don't fully understand what is fueling the demand and they are not taking it for granted. Though there is a rough correlation between demand, OPEC oil prices and the value of the US dollar, a recent decline in OPEC prices has yet to have an impact on DSCA, Rixey said.

"If the sales drops off, what happens to the workforce, what are we going to do ," he said. "We have to look at where this is going to trend because we may have to get lean if it trends the other way ." DSCA has begun to forecast and study probable requests to devise speedier responses, and is looking at streamlining the organization to lower costs in the foreign military sales (FMS) program. One highlight is a reorganization by region, with a strategic team to look at the priorities of the regional combatant commanders, the Defense Department and foreign partners. Combatant commanders can place foreign sales requests on a priority list for rapid action. "One of the biggest criticisms they had was they didn't know what was going on in our organization, but now they do," Rixey said. "I can also articulate what I'm not doing because I'm off doing

the things we clearly articulated are strategically important." Despite a trend toward direct commercial sales over FMS, the relationship with the US that comes with FMS remains main selling point, as the US seeks to foster a network of relationships to support its own national security, Rixey said. "The sales have a strategic value, but we can't lose sight of the fact that we are a tool of foreign policy, and there has to be a discussion about being deliberate in what it is we transfer," Rixey said.

circumvention – enforcement

Circumvention inevitable- executives will mess with the plan no matter how precisely wordedStephen Cohen (Associate Professor of Law at Georgetown Unvieristy, Former Deputy Assistant Secretary of State for Human Rights and Security Assistance (1978-1980)) 1982 “CONDITIONING U.S. SECURITY ASSISTANCE ON HUMAN RIGHTS PRACTICES” 76 Am. J. Int’l L. 246 (1982) https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2605&context=facpub

When Congress does provide an implementing mechanism, implementation will still be highly dependent on the attitudes of high political officials. If they are hostile, even a general rule written with a high degree of precision will probably have little impact on executive decisions. The career Foreign Service will exert no influence on political appointees to implement the law, and the Bureau of Human Rights can be effectively neutralized. The Assistant Secretary is a presidential appointee, and a hostile administration can either select someone to fill the position who will not push for implementation or simply leave the post vacant. In such a case, country-specific legislation is the only effective means for Congress directly to influence specific decisions on military aid and arms sales.

circumvention - leases

Leases are distinct from foreign military sales DISCS Green Book [DISCS Green Book, The basic textbook employed by the Defense Institute of Security Cooperation Studies (DISCS) for instruction covering the full range of security cooperation activities, Defense Institute of Security Cooperation Studies, accessed at: https://www.discs.dsca.mil/documents/greenbook/08_Chapter.pdf?id=1] KKL

Normally, the USG makes defense articles available to foreign governments by FMS under the AECA. However,

there are instances where a lease, rather than sale, to eligible foreign countries or international organizations is appropriate. Leases are authorized under the AECA Section 61 when it is determined that there are compelling foreign policy and national security reasons for leasing rather than selling, and the articles are not needed for USG use during the proposed lease period. For example, a foreign government may desire to obtain a defense article for a short period under a lease LOA Standard Terms and Conditions 8-20 for testing purposes to assist it in determining whether to procure the article in quantity. As another example, the USG may only be able to respond to an urgent foreign requirement for defense property by making it available from inventory, but for national defense reasons cannot sell the property and must require its return to the inventory after a specified term. Attachment 8-1 provides a sample lease. Section C11.6 of the SAMM provides lease policy. Approval DoD components must obtain DSCA concurrence before indicating to a foreign country or international organization that a lease is being favorably considered or is an available option. The DoD component will provide a determination and forward a memorandum written in the format specified in the SAMM, starting at Figure C11.F5, along with the draft lease. A detailed rationale must be provided for any proposed lease outlining the reasons why the defense articles are being leased rather than sold. Security Cooperation Organization Responsibility The Security Cooperation Organization (SCO) or Defense Attaché Office (DAO) where no SCO is assigned in the partner country should receive a copy of each lease entered into with the respective government of the country where

they serve. The SCO should assist DoD components in monitoring the use of USG-owned equipment in the country. Lease Format Leases are prepared using the Defense Security Assistance Management System (DSAMS). Attachment 8-1 illustrates the basic lease format. Additional provisions may be added with the concurrence of the appropriate legal office of the DoD component concerned and with DSCA approval. The lease will be signed by the appropriate IA and provided to DSCA for countersignature. A separate LOA will be used for packing, crating, handling, and transportation (PCH&T), and the sale of associated articles and services, including any refurbishment of the defense article(s) required prior to, during, or after the lease period. The LOA will also be used to recover applicable costs if the article is lost, damaged, or destroyed during the lease period.

We’ll submit a draft of the official template for forwarding memoranda involving a lease request – it explicitly requires justifying why a lease was chosen over a saleSAMM (Security Assistance Management Manual) 2019 “Chapter 4: Foreign Military Sales Program General Information” https://www.samm.dsca.mil/chapter/chapter-4

circumvention - bpc

BPC programs are legally and financially distinct from the FMS processDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

Contracting for BPC Programs

Building Partner Capacity (BPC) programs that are implemented via pseudo-LOAs will utilize the FMS infrastructure for execution. However; due to the different authorities and appropriated funding sources for BPC programs, acquisitions for BPC will not follow the FMS acquisition processes and procedures outlined in SAMM C6.3 and the DFARS Subpart 225.7300. Instead, acquisition for BPC programs will follow the processes and procedures outlined in SAMM C15 as well as the FAR and DFARS provisions associated with contracts funded by USG appropriated funds.

A key consideration in conducting BPC acquisitions is to recognize the time limited nature of BPC funds for both obligation and disbursement purposes. SAMM Table C15.T2 lists the various BPC programs with the associated appropriation authority, fund expiration date and funds cancellation dates. These dates are essential in procurement planning and execution for BPC. Due to the fiscal time limitations, SAMM C15.2.5 outlines the role of a feasibility assessment in planning for a BPC acquisition.

Another major difference for a BPC acquisition is that the benefiting country is not provided an opportunity to request procurement from a specific vendor. The FMS sole source process based on the FAR subpart 6.302-4 international agreement exception is ineligible to be utilized with BPC programs. The other than full and open competition process can be used for BPC programs but the justification for use must be based on other exception criteria outlined in the FAR subpart 6.3. SAMM Figure C15. F2 discusses the sole source process that is applicable to BPC programs.

In regard to contract pricing, BPC requirements default to all the normal DoD pricing rules. The FMS contract pricing provisions outlined in DFARS subpart 225.7303 are not applicable to BPC acquisitions. Additionally, offsets as discussed for FMS are not applicable in BPC acquisitions.

BPC is distinct from FMSDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

The fundamental principle regarding contracting for FMS requirements is that the USG essentially treats the FMS customer’s requirements as if they were USG requirements. In contracting for FMS, the same contracting regulations, policies and procedures are applied. Per the SAMM, this is one of the principal reasons customers select the FMS system rather than contracting themselves using direct commercial processes.

The unique aspects of the procurement process that pertain to FMS are few in number, but they

have a major impact on the FMS process. Competitive source selection is the norm; however, the FMS customer has the option to use other than full and open competition if they desire the USG to contract with a specific firm. Under other than full and open competition procedures, the FMS customers need not provide a rationale for the request.

The USG also has established a comprehensive contract administration infrastructure that will be used to oversee the execution of contracts awarded in support of FMS requirements. Again, the USG uses the same contract administration, quality assurance and contract audit processes for FMS that it uses for DoD procurements.

Offsets are an international market reality. Offsets are permitted in association with FMS when the LOA funding the procurement contract is financed by customer cash or repayable credit. If the LOA is funded by USG grant funds, offset costs claimed by the contractor will be considered unallowable.

Building Partner Capacity (BPC) programs that are implemented via pseudo-LOAs will utilize the FMS infrastructure for execution. However; due to the different authorities and appropriated funding sources for BPC programs, acquisitions for BPC will not follow the FMS acquisition processes and procedures outlined in SAMM C6.3 and the DFARS Subpart 225.7300. Instead, acquisition for BPC programs will follow the processes and procedures outlined in SAMM C15 as well as the FAR and DFARS provisions associated with contracts funded by USG appropriated funds.

FMS is a unique arms sales process – its legally distinct from BPCDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbook

Basic contract law concepts are evident in the government-to-government agreements for security assistance (SA). This chapter examines the foreign military sales (FMS) standard terms and conditions that are an integral component of every FMS Letter of Offer and Acceptance (LOA). In contrast, the standard terms and conditions introduced in this chapter are not included as a component of pseudo LOAs used to implement various Building Partner Capacity (BPC) programs. For BPC transfers, the benefitting country acknowledges its various responsibilities via a separate agreement pursuant to Section 505 of the Foreign Assistance Act. More information about pseudo LOAs is contained in Chapter 6 of this textbook. Additionally, this chapter discusses the purpose and application of other SA agreements such as LOA amendments, LOA modifications, leases, loans, and international agreements.

Contracts

The term contract is commonly understood to refer to a binding agreement between two or more parties that is enforceable by law. Contracts to acquire supplies or services for the USG are developed and executed under the uniform policies and procedures delineated in the Federal Acquisition Regulation (FAR). The USG contracting process under the FAR is briefly outlined in Chapter 9 of this textbook. The LOA is not a procurement type contract developed and executed under the FAR. Instead, an FMS LOA is a unique agreement that is developed under the authority of the Arms Export Control Act (AECA) and in accordance with the policies and procedures specified in the Security Assistance Management Manual (SAMM). The LOA documents the bilateral government-to-government agreement between the USG and the partner nation. In the LOA, the USG commits itself to provide certain defense

items or services and the purchaser commits to abide by specific terms and conditions associated with the sale and to make specified financial payments. Although the LOA is its own unique type of agreement, a brief examination of the LOA viewed through the contract paradigm is a helpful tool to better understand the LOA.

circumvention – waivers

Multiple methods Trump could circumvent & give countries arms for free – We’ll insert a list of waivers for FMS coded into the lawUSC 6/27 (U.S. Code, From Title 22-Foreign Relations & Intercourse: Chapter 39-Arms Export Control; Subchapter II-Foreign Military Sales Authorizations, “Title 22: Chapter 39”, http://uscode.house.gov/view.xhtml?req=(title:22%20section:2761%20edition:prelim), Updated 6/27/19, Accessed 6/28/19, Lex RM)(2)(A) The President may reduce or waive the charge or charges which would otherwise be considered appropriate under paragraph (1)(B) for particular sales that would, if made, significantly advance United States Government interests in North Atlantic Treaty Organization standardization, standardization with the Armed Forces of Japan, Australia, the Republic of Korea, Israel, or New Zealand in furtherance of the mutual defense treaties between the United States and those countries, or foreign procurement in the United States under coproduction arrangements.

(B) The President may waive the charge or charges which would otherwise be considered appropriate under paragraph (1)(B) for a particular sale if the President determines that-

(i) imposition of the charge or charges likely would result in the loss of the sale; or

(ii) in the case of a sale of major defense equipment that is also being procured for the use of the Armed Forces, the waiver of the charge or charges would (through a resulting increase in the total quantity of the equipment purchased from the source of the equipment that causes a reduction in the unit cost of the equipment) result in a savings to the United States on the cost of the equipment procured for the use of the Armed Forces that substantially offsets the revenue foregone by reason of the waiver of the charge or charges.

(C) The President may waive, for particular sales of major defense equipment, any increase in a charge or charges previously considered appropriate under paragraph (1)(B) if the increase results from a correction of an estimate (reasonable when made) of the production quantity base that was used for calculating the charge or charges for purposes of such paragraph.

(3)(A) The President may waive the charges for administrative services that would otherwise be required by paragraph (1)(A) in connection with any sale to the North Atlantic Treaty Organization (NATO) Support and Procurement Organization and its executive agencies in support of-

(i) a support or procurement partnership agreement; or

(ii) a NATO/SHAPE project.

a2 circumvention - fms-onlyAll key arms sales are designated as FMS-Only – multi-agency review process ensures no circumventionSAMM (Security Assistance Management Manual) 2019 “Chapter 4: Foreign Military Sales Program General Information” https://www.samm.dsca.mil/chapter/chapter-4

C4.3.5. FMS-Only Determinations. The AECA gives the President discretion to designate which military end-items must be sold exclusively through FMS channels. This discretion is delegated under statutory authority to the Secretary of State. Generally, as a matter of policy, this discretion is exercised upon the recommendation of DoD.

C4.3.5.1. DoS approves or disapproves all arms sales and is responsible for the continuous supervision and general direction of all sales. Each MILDEP or DoD Component develops recommendations for FMS-Only designations on specific weapons systems and military technologies considering the criteria in Section C4.3.5.3. and Section C4.3.5.4. The MILDEP or DoD Component forwards related recommendations and rationales for adding or removing such FMS-Only systems designations to DSCA (Directorate for Security Assistance (DSA)) and DTSA. DSCA will provide such recommendations to DoS for its review and approval/disapproval. Through the export licensing process for Direct Commercial Sales (DCS), overseen by the Directorate of Defense Trade Controls at DoS, DTSA will review licensing requests to ensure license requests are consistent with FMS-only designations. Requests for further assistance with FMS-Only designations should be directed to DSCA (Directorate for Security Assistance) for reconciliation or referral to the appropriate DoD element for resolution.

C4.3.5.2. FMS Only List. The key purpose of this list and related USG processes is the codification and more consistent application of the USG requirement that certain military items be sold only on a government-to-government basis. The following is a listing of military capabilities and systems by general category that the USG broadly considers to be available for export solely on an FMS-Only basis. Inclusion of items on the below list should not be construed as a change to policy as it exists as of September 2016.

Select Radars: such as but not limited to AESA, Ballistic Missile Defense, and High-Frequency Phased Array Microwave

Air-to-Air Missiles

Attack Helicopters

Autonomous Weapons Systems

Ballistic Missile Defense Items: Effectors; Firing Units; Software

Special Purpose Aircraft Items

Counter Improvised Explosive Device Items

Cross Domain Solutions (involving critical U.S. systems)

Directed Energy Weapons

Fighter Aircraft

Ground Based Air Defense Items

Infrared Countermeasures

Intelligence Libraries/Threat Data

LADAR/LIDAR

Man-Portable Air Defense Items

Military Aerosol Delivery Systems

Missiles

Mission Equipment/Systems

Mission Planning Systems

Missile Technology Control Regime CAT I Items

GPS/PPS (Allowances made for certain DCS transfers remain in effect)

Nuclear Weapons/Nuclear Propulsion

Select Electronic Warfare Items

Select Sensor Fusion Man-Portable Night Vision Devices

Sensor Fused Weapons

Stand Off Weapons

Sonar

COMSEC

Select Torpedoes

Torpedo Countermeasures

Anti-Ship Cruise Missile Countermeasures

Unmanned Aerial Systems and related components

C4.3.5.3. DoS uses four general criteria to determine whether a sale should be required to proceed through the FMS process: Legislative/Presidential restrictions; DoD/MILDEP policy, directive, or regulatory requirement, e.g., the National Disclosure Policy; government-to-government agreement requirements; and interoperability/safety requirements for U.S. Forces.

C4.3.5.4. These DoS criteria, also outlined under DoD/MILDEP policy, can be further understood by considering four possible elements:

C4.3.5.4.1. U.S. Political-Military Relationship with the End-User. The geopolitical situation and security relationships are taken into account when considering the appropriateness of recommending FMS-Only. The inherent strengths of FMS or DCS licensing methods are also considered in selecting the method that best suits the interests of the United States and the foreign purchaser within the context of existing global security circumstances.

C4.3.5.4.2. Sale of a New or Complex System or Service. DoD may recommend FMS-Only:

C4.3.5.4.2.1. To maximize the purchaser's ability to assimilate the technologies and manage its acquisition/logistics.

C4.3.5.4.2.2. For enhanced interoperability and cooperation between U.S. and purchaser's military forces.

C4.3.5.4.2.3. For end-items or services that require complex systems integration with other combat systems.

C4.3.5.4.2.4. For end-items or services that require access to sensitive U.S. government databases, libraries, or software-source code.

C4.3.5.4.2.5. For end-items or services that require EEUM or on-site accountability

C4.3.5.4.3. Diversion and Exploitation of Defense Systems Technologies. Security of sensitive technologies requires greater scrutiny in the transfer process. Defense systems and munitions that are not particularly complex or sensitive but still require enhanced control to prevent proliferation to rogue states or terrorist organizations represent another area where FMS may be more appropriate than DCS.

C4.3.5.4.4. Feasibility of Separating Weapon System Components into FMS/DCS Elements. At times, purchasers may desire all or a portion of a sale to be DCS. In instances where possible, FMS-Only aspects of a purchase may potentially be separated from the portion that can be sold DCS.

a2 circumvention – signal/perception

Circumvention doesn’t matter- the statute being in place sends a credible signal to other countriesStephen Cohen (Associate Professor of Law at Georgetown Unvieristy, Former Deputy Assistant Secretary of State for Human Rights and Security Assistance (1978-1980)) 1982 “CONDITIONING U.S. SECURITY ASSISTANCE ON HUMAN RIGHTS PRACTICES” 76 Am. J. Int’l L. 246 (1982) https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2605&context=facpub

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2605&context=facpub)

Even when a hostile administration disregards section 502B, the statute may serve as an affirmation by Congress that disassociation from repressive governments is a desirable goal of U.S. foreign policy. It reinforces the idea that military ties with such governments can impose considerable costs and should not be pursued unless they are the only available means of securing especially important national interests. Its existence legitimates efforts by Congress to enact legislation that prohibits military aid and arms sales to specific: countries. It may also focus the attention of journalists, scholars, and the interested public on executive decisions that would otherwise escape scrutiny.

a2 circumvention – leases

Reductions in arms sales legally apply to leases as well – AECA section 64AECA (Arms Control Export Act) 2019 https://legcounsel.house.gov/Comps/Arms%20Export%20Control%20Act.pdf

SEC. 64. ø2796c¿ APPLICATION OF OTHER PROVISIONS OF LAW.—Any reference to sales of defense articles under this Act in any provision of law restricting the countries or organizations to which such sales may be made shall be deemed to include a reference to leases of defense articles under this chapter.

Leases are T — SIPRI includes it in its dataHoltom et al 11 (Paul — was the Director of the SIPRI Arms Transfers Programme; Mark Bromley — Director of the SIPRI Dual-Use and Arms Trade Control Programme. His areas of research include arms acquisitions in Latin America, transparency in the field of international arms transfers and the efforts to combat the illicit trafficking of small arms and light weapons (SALW).; Pieter Wezeman — Senior Researcher with the SIPRI Arms Transfers and Military Expenditure Programme. His area of research is the global production and proliferation of conventional arms with a special focus on military expenditure and arms procurement in and arms transfers to the Middle East and Africa. He also monitors multilateral arms embargoes and maintains the SIPRI database on that issue; Siemon Wezeman — Senior Researcher with the SIPRI Arms Transfers and Military Expenditure Programme. His areas of research include the monitoring of arms transfers, military spending and arms production, with particular focus on the Asia–Pacific and former Soviet Union, and the use of weapons in conflicts. He also researches military technology and transparency in arms transfers. Since 1992 he has worked with the SIPRI Arms Transfers Programme, SIPRI, “Developments in arms transfers in 2011,” 2011, https://www.sipri.org/sites/default/files/SIPRIYB12c06sI.pdf) Heublein

SIPRI’s definition of an arms transfer includes sales of weapons, including manufacturing licences, as well as aid, gifts,

and most loans or leases. The recipient of the arms must be the armed forces, paramilitary forces or intelligence agencies of another country, a non-state armed group, or an international organization. In cases where deliveries are identified but it is not possible to identify either the supplier or the recipient with an acceptable degree of certainty, transfers are registered as coming from an ‘unknown supplier’ or going to an ‘unknown recipient’.

FMS includes leasesDiamond and Castellano 16 [Stephen, Chairman @ American Bar Association, Arnold & Porter Kaye Scholer LLP, and Nathaniel, Adjunct Professor @ George Washington University Law School, 4/14/16, “FMF Leasing: A New Alternative For Foreign Military Sales” Aerospace & Defense Law360, https://www.arnoldporter.com/~/media/files/perspectives/publications/2016/04/fmf-leasing-a-new-alternative-

for-foreign-military-sales.pdf] KKL

FMF Leasing: A New Alternative For Foreign Military Sales --By Steven S. Diamond and Nathaniel E. Castellano, Arnold & Porter LLP Law360, New York (April 14, 2016, 12:55 PM ET) --Government contractors interested in pursuing international sales should also consider the potential availability of foreign military funding (FMF) to their foreign government customers for the lease of defense equipment. Although typically prohibited,[1] in some circumstances, the Defense Security Cooperation Agency (DSCA) has approved the use of FMF funding

for equipment leases. As explained below, using FMF funds to facilitate leases of defense equipment can be advantageous to American defense contractors, foreign government customers and the U.S. government. Contractors may be in a position to self-finance these leases, or they may require third-party financing. For the latter, executing these deals will require combining the worlds of FMF transactions and commercial equipment lease financing, which at first blush present mutually conflicting requirements. The Case For FMF Leasing With the decline in U.S. defense spending, American contractors are looking abroad to sell their goods and services to foreign customers. At the same time, increasingly unstable geopolitical conditions and rapid growth in emerging economies make some foreign governments eager customers for U.S.-produced defense equipment. Under certain circumstances, the U.S. government facilitates and funds the sale of military supplies and services to friendly

countries. Often, the U.S. government will assist in funding these transactions to f f urther foreign policy and military objectives. The sale of defense equipment to foreign customers generally occurs within the legal framework of either a (1)

foreign mlitary sale (FMS) or (2) direct commercial contract (DCC) with a foreign government, assisted with FMF funds. FMS, which is the more common of the two approaches, involves a foreign government purchasing directly from a U.S. defense agency, with the defense agency contracting through a standard federal government supply contract with a U.S. contractor. The U.S. Department of Defense handles all aspects of the procurement — including contract formation and administration, selection of terms and conditions, quality assurance, payment, and dispute resolution. This relieves the foreign government of a considerable administrative burden, and allows it to capitalize on the DOD’s acquisition experience. Conversely, the foreign customer loses some control over the acquisition process and may pay a premium for the DOD’s services. Under the DCC framework, the foreign customer contracts directly with a U.S. contractor. The U.S. government may provide assistance in the form of FMF. In contrast to the FMS framework, in a DCC, there is privity between the contractor and the foreign government. Although various requirements are imposed by the U.S. government, the foreign government and the contractor act relatively independently during the acquisition process. The prerequisites for entering a DCC and obtaining FMF funding are set forth in DCSA guidance,[2] which requires, among other things, that the contractor execute a contractor certification and agreement with DSCA and, potentially, submit to a pre-

award survey, pricing review and U.S. government audit rights.[3] FMS and FMF transactions are typically contracts for sale, but they can also be structured as leasing arrangements. Foreign governments might prefer leases because leasing may involve lower cost and less risk of owning equipment that could become obsolete. As in any equipment lease, the lessee pays for the value it uses. From the U.S. government perspective, the U.S. Department of State and the DOD are incentivized to approve FMF for leases, because such arrangements allow leverage of increasingly scarce appropriations and facilitate

relations with allies. Leases appeal to contractors, because they generate increased revenue and may ultimately result in the foreign customer purchasing the equipment (e.g., through a lease-to-own provision). Even

without a sale, the contractor may be able to re-lease or resell the equipment. The FMS legal framework expressly allows for leases under certain circumstances, but leases generally have been prohibited from receiving FMF funding.[4] Foreign customers may nevertheless prefer direct lease contracts supported by FMF, so that they have more control over the transaction and can obtain equipment that they otherwise may not have funding to procure. The DSCA, in limited circumstances thus far, has

shown a willingness to consider FMF for lease transactions. Unlike FMS leasing, which is more common, there are no guidelines for FMF leases, and striking the balance between a compliant FMF transaction and a commercial equipment lease can be difficult. The following section addresses issues that must be considered when contemplating an FMF lease.

The most common types of arms leases are encompassed under FMS Diamond and Castellano 16 [Stephen, Chairman @ American Bar Association, Arnold & Porter Kaye Scholer LLP, and Nathaniel, Adjunct Professor @ George Washington University Law School, 4/14/16, “FMF Leasing: A New Alternative For Foreign Military Sales” Aerospace & Defense Law360, https://www.arnoldporter.com/~/media/files/perspectives/publications/2016/04/fmf-leasing-a-new-alternative-

for-foreign-military-sales.pdf] KKL

FMS and FMF transactions are typically contracts for sale, but they can also be structured as leasing arrangements. Foreign governments might prefer leases because leasing may involve lower cost and less risk of owning equipment that could become obsolete. As in any equipment lease, the lessee pays for the value it uses. From the U.S. government perspective, the U.S. Department of State and the DOD are incentivized to approve FMF for leases, because such

arrangements allow leverage of increasingly scarce appropriations and facilitate relations with allies. Leases appeal to contractors,

because they generate increased revenue and may ultimately result in the foreign customer purchasing the equipment (e.g., through a lease-to-own provision). Even without a sale, the contractor may be able to re-lease or resell the

equipment. The FMS legal framework expressly allows for leases under certain circumstances, but leases generally have been prohibited from receiving FMF funding.[4] Foreign customers may nevertheless prefer direct lease contracts supported by FMF, so that they have more control over the transaction and can obtain equipment that they otherwise may not have

funding to procure. The DSCA, in limited circumstances thus far, has shown a willingness to consider FMF for lease transactions. Unlike FMS leasing, which is more common, there are no guidelines for FMF leases, and striking the balance between a compliant FMF transaction and a commercial equipment lease can be difficult. The following section addresses issues that must be considered when contemplating an FMF lease.

Leases are associated with FMS DISCS Green Book [DISCS Green Book, The basic textbook employed by the Defense Institute of Security Cooperation Studies (DISCS) for instruction covering the full range of security cooperation activities, Defense Institute of Security Cooperation Studies, accessed at: https://www.discs.dsca.mil/documents/greenbook/08_Chapter.pdf?id=1] KKL Lease Identification Using DSAMS, the IA assigns a unique designator to each lease. The lease designator is composed of the country code, the IA code, and a three-position code assigned by the IA. The lease designator is included on each lease page, including schedules, appendices, and

accompanying documents. FMS cases associated with leases must reference the lease designator Duration Leases may be written for a maximum of five years with an additional specified period of time required to complete major refurbishment work prior to delivery. Leases may include multiple items with different lease duration periods. The shortest lease period is one month and the longest lease

period is sixty months. Leases of one year or more require congressional notification in accordance with the AECA Section 62(a)(22 U.S.C. 2796(a). Leases shall provide that, at any time during the lease period, the USG may terminate the lease and require the immediate return of the defense article. Leases of less than five years may be extended via an amendment but the total period under a specific lease may not exceed five years plus the time needed for refurbishment. Amendments Lease amendments may be used to extend or change existing leases. Such changes include variations to payment schedules, Schedule A items, or periods of performance. Each amendment includes the original lease designator and undergoes the same staffing process as the original lease. If a lease for LOA Standard Terms and Conditions 8-21 less than one year is amended so that the total period of the original lease and the amendment equals or exceeds

one year, the amendment must be notified to the Congress before it can be offered. Loss, Destruction, or Damage The lessee must agree to pay the costs of restoration or replacement if the articles are lost, damaged, or destroyed while leased. In this case, the customer is charged the replacement cost (less any depreciation) if the U.S. intends to replace the articles or the

actual article value (less any depreciation) if the U.S. does not intend to replace the articles. These charges are recouped under an FMS transaction via an LOA. Lease Payment The lessee must agree to pay in U.S. dollars all costs incurred by the USG in leasing articles, including reimbursement for depreciation (rent) of articles while leased. The rental payment is calculated in accordance with DoD 7000.14-R, Volume 15, Chapter 7. Rental payments do not include an administrative charge. Schedule A of each lease identifies the replacement costs of the items being leased and the schedule for rental payment due to the USG. Billings to the foreign lessee are based on this schedule of payments and are included on a separate DD Form 645A with the country’s quarterly FMS billing statement. Defense Finance and Accounting Service (DFAS) deposits receipts from lease rental payments in the Miscellaneous Receipts Account 3041 (FMS Recoveries, DoD Lease Costs) in accordance with the Treasury Financial Manual, Supplement to Volume 1. The use of Foreign Military Financing Program (FMFP) funds is not authorized for payments of lease rental charges except for leases of aircraft for counternarcotics purposes pursuant to FAA Section 484 (22 U.S.C. 2291c). FMFP funds may be authorized by DSCA for FMS cases prepared in support of a lease.

Leases are permitted using FMS funding Diamond and Castellano 16 [Stephen, Chairman @ American Bar Association, Arnold & Porter Kaye Scholer LLP, and Nathaniel, Adjunct Professor @ George Washington University Law School, 4/14/16, “FMF Leasing: A New Alternative For Foreign Military Sales” Aerospace & Defense Law360, https://www.arnoldporter.com/~/media/files/perspectives/publications/2016/04/fmf-leasing-a-new-alternative-

for-foreign-military-sales.pdf] KKL

[1] The Arms Export Control Act (AECA) allows the president to lease DoD defense articles to eligible foreign countries or international organizations for a period not to exceed five years and a specified period of time required to complete major refurbishment prior to delivery. 22 U.S.C. § 2796 There must be compelling foreign policy and national security reasons for providing such articles on a lease basis, and the articles must not be needed for public use at the time. Id. This authority is delegated to the director of DCSA. Leases are permitted using FMS funding, ESAMM § C.11.6, but FMF funds are generally prohibited for the lease of defense articles.

a2 circumvention - bpcFMS infrastructure used for BPCDFARS 19 (Defense Federal Acquisition Regulation Supplements, PGI 225.73--ACQUISITIONS FOR FOREIGN MILITARY SALES, 4/1/19, https://www.acq.osd.mil/dpap/dars/pgi/pgi_htm/current/PGI225_73.htm) Heublein

(a) The Foreign Military Sales (FMS) acquisition infrastructure is also used to execute cases funded with U.S. appropriated funds under special authority to build international partner capacity . These Building Partner

Capacity (BPC) cases are implemented using Pseudo Letter of Offer and Acceptance (LOA) documents.

Building Partner Capacity programs are administered as cases within FMSSAMM NO DATE [Security Assistance Management Manual (SAMM) issued by the Defense Security Cooperation Agency (DSCA), Chapter 15: “Building Partner Capacity Programs”, DSCA, Accessed at: https://www.samm.dsca.mil/chapter/chapter-15] KKL

Building Partner Capacity (BPC) programs encompass security cooperation and security assistance activities that are funded with U.S. Government (USG) appropriations and administered as cases within the Foreign Military Sales (FMS) infrastructure. These programs may provide defense articles and/or services to other USG departments and agencies under the authority of the Economy Act or other transfer authorities for the purpose of building the capacity of partner nation security forces and enhancing their capability to conduct counterterrorism, counter drug, and counterinsurgency operations, or to support U.S. military and stability operations, multilateral peace operations, and other programs. They are crucial tools used by the Department of Defense (DoD)

and other USG agencies in furtherance of U.S. national security objectives. To enable BPC program execution through existing

security assistance automated systems, the DoD Implementing Agency (IA) develops a pseudo Letter of Offer and Acceptance (LOA) in the Defense Security Assistance Management System (DSAMS). The pseudo LOA is not signed by the partner nation that will ultimately receive the articles and/or services, but serves to document the transfer of articles and services to the USG Requesting Authority.

a2 circumvention - edaExcess Defense Articles (EDA) still go through the FMS processDISCS (Defense Institute of Security Cooperation Studies) January 2019 “The Management of Security Cooperation”, otherwise known as the “Green Book”, the textbook used to educate personnel, https://www.discs.dsca.mil/_pages/resources/default.aspx?section=publications&type=greenbookExcess property procedures afford still another method for limited materiel support. Property that is excess to U.S. MILDEP requirements and cannot be used by other DoD components may be provided to eligible foreign governments through the FMS program as Excess Defense Articles (EDA). Providing excess materiel is accomplished either through the military departments or the DLA Disposition Services. EDA include lethal and non-lethal defense equipment owned by the MILDEPs, excluding construction equipment, which may be provided to selected countries on a grant or as an FMS sale. All sales of excess significant military equipment (SME) or materiel valued at $7M or higher in original acquisition value require a thirty-day advance congressional notification prior to transfer. The DLA Disposition Services program, on the other hand, is the sale of non-lethal, non-SME excess government property, which may include major end items, support equipment and consumables that are no longer needed by the MILDEPs, and are transferred by DLA as a grant to eligible countries, or sold to non-grant eligible countries at a reduced cost based on the condition of the items.

Surpluses of US arms are inevitably transferred to foreign countries as Excess Defense Articles DSCA 17 (Defense Security Cooperation Agency, administers security cooperation programs that support U.S. policy interests and objectives identified by the White House, Department of Defense, and Department of State, “Excess Defense Articles (EDA),” December 11, 2017, https://www.dsca.mil/programs/excess-defense-articles-eda) eks

Excess Defense Articles (EDA) are defined in the Foreign Assistance Act (FAA) as amended, section 644(g), as: …the quantity of defense articles (other than construction equipment, including tractors, scrapers, loaders, graders, bulldozers, dump trucks, generators, and compressors) owned by the United States Government, and not procured in anticipation of military assistance or sales requirements, or pursuant to a military assistance or sales order, which is in excess of the Approved Force Acquisition Objective and Approved Force Retention Stock of all Department of Defense Components at the time such articles are dropped from inventory by the supplying agency for delivery to countries or international organizations under this Act. The Military Departments determine what is or is not excess. Equipment which has been transferred from the Military Departments to the Defense Logistics Agency, Disposition Services, is also available for transfer through the EDA program if an eligible foreign government makes known its requirements for the equipment. The Department of Defense is authorized by law to transfer Excess Defense Articles to foreign governments under the following authorities: Section 516 of the Foreign Assistance Act of 1961, as amended, authorizes grant transfers of lethal and non-lethal EDA to countries which receipt of such articles were justified to Congress for the fiscal year in which the transfer is authorized. EDA may also be sold to foreign countries under the normal FMS system authorized by the Arms Export Control Act (AECA). When EDA is sold, the price is a percentage of the original acquisition value, based on age and condition, and ranges from 5% to 50% of the original acquisition. All grant recipients must sign agreements pursuant to Section 505 of the FAA agreeing to end-use restrictions and giving the U.S. first right to proceeds of any sale.

EDA makes buying weapons through alternate avenues extremely cheap Wayne 06 (LESLIE WAYNE, contributes to the New York Times, “Free to a Good Country,” OCT. 31, 2006, https://www.nytimes.com/2006/10/31/business/31tagsale.html) eks

Across the world, the Pentagon has thousands of garages, hangars and sprawling lots to store all its jets, tanks and other weaponry. But, like most American households, it is cluttered with old, unused and unwanted things. And so the Pentagon runs a little-publicized giveaway and tag

sale program to clean out its overstuffed attics and closets, bulging with the greatest weapons buildup since the Reagan era. The Pentagon also uses the Excess Defense Articles program, as it is called, to reward government friends and allies across the globe. There are deals galore, available free to the right customer or for cents on the dollar of their original cost. There

are lots of deal hunters, but access is by invitation only, and only for governments. Pakistan and Jordan have snapped up a bunch of used F-16 Fighting Falcon jets. Afghanistan kicked the tires on a fleet of slightly used armored personnel carriers and walked away with 75 of them. A small fleet of 30-year-old sea rescue lifeboats has become the backbone of the Yemeni coast guard, and Portugal is about to take possession of a decommissioned guided-missile frigate. “It is a flea market,” said a State Department official who oversees the program. “It’s our yard sale, and we make no guarantees.” The program is meant as a good will operation that the government uses to build friendships internationally. And the program has been picking up: the equipment offered in 2006 had an original price tag of around $1.56 billion, twice that of the previous year. It is expected to grow again in 2007. “There’s everything from

M-16s to F-16s, and anything in between,” said Rachel J. Stohl, a senior analyst at the Center for Defense Information, a nonprofit group often critical of military spending. “You can’t get everything you want. But, boy, can you get a bargain.” Between 2000 and 2005, the Pentagon offered up wares originally valued at $8 billion: helicopters, torpedoes, airplanes, a wind tunnel, utility landing craft, cargo trucks, high-power

radars, missiles, ammunition, uniforms and tenders, harbor craft and other vessels. Around $2 billion of this merchandise was given away

to countries deemed needy enough to qualify. Another $800 million was sold at drastically reduced prices — even as low as 5 cents on the dollar. The rest had no takers. Most of the recipient countries cannot afford brand-new equipment on their own; the Philippines, Morocco and the Dominican Republican have been recent shoppers. But first-world countries like Australia and Canada have picked up some cheap castoffs, as well. There is no central site where all the weaponry is gathered for inspection by would-be buyers. Instead the merchandise is offered on an “as is, where is” basis, with the buyer having to pay for shipping and repairs — which can sometimes make the bargain less appealing and accounts for why not all the merchandise moves. Few shoppers, however, complain — and they often observe the hand-off of weapons in ceremonies in their home countries, with American officials in attendance. “We’re grateful,” said Sgt. Maj. Irving Estrada, assistant to the military attaché of Guatemala. His country has received used body armor, flight suits, boots and computers which were presented by the American ambassador at a ceremony in Guatemala City last April. “This is very important to us,” said Sergeant Major Estrada. “Everything is useful and we use everything that we get.” The program is not without its critics, who say it contributes to a global arms race and may be a short-sighted way of winning friends. “Aren’t there more constructive ways for the United States to make friends?” asked Danielle

Brian, executive director of the Project on Government Oversight, a watchdog group that studies Pentagon spending. “We are arming countries that otherwise would not afford to be armed. If we want to make friends, we should have something better to offer.” Critics also say the tag sale are giveaway metaphors are not apt, and prefer to describe it in terms of a business giving out free samples. The program, they say, gives nations a taste of weapons that they might like to purchase later, often with foreign aid from the United States.

“It’s like, ‘Here, have this and next time you’ll come back,’ ” said Ms. Stohl of the Center for Defense Information. “Excess defense articles are a springboard to other sales.” State Department officials say the program provides a steady source of rewards to help build critical international relationships. Last year, Pakistan obtained two used F-16s as a sign of appreciation for its help to the United States when it invaded Afghanistan after 9/11, according to statements from State Department officials at the time. These were 1980s vintage planes with a current value of $6.5 million, but were given to Pakistan free. These two used F-16s have already been delivered to Pakistan, and were offered just as the country placed a controversial $5 billion order for advanced F-16s, a fighter jet that Pakistan had been banned from obtaining since the early 1990s because of American objections to its nuclear program. That ban is no longer in effect. President Bush has also provided old equipment to help secure support for foreign policy goals. For instance, in 2003, in the countdown to the war against Iraq, a squadron of used National Guard F-16s was transferred, free of charge, to Jordan, which shares a border with Iraq. The arrival of the first six F-16s was heralded at a ceremony at the Sahid Muwafak al-Salti air force base in northern Jordan that was attended by Maj. Gen. Prince Faisal bin Hussein, brother of the Jordanian king, as well as by the United States ambassador to Jordan and high-ranking Pentagon officers. “It’s hugely important,” said Lt. Gen. Jeffrey B. Kohler, director of the Defense Security Cooperation Agency, which manages the transfers. “It is one of the ways that we can help some of our friends obtain the capabilities they need.” General Kohler noted that used personnel carriers had gone to the Lebanese army and that excess Coast Guard cutters patrolled the Caspian Sea. “It gives us access and influence and builds friendships,” he added. In a policy statement, the State Department said that the program “has contributed to our foreign policy successes” and has had a “positive global impact, furthering U.S. national security interests and supporting the growth and strengthening of democracies.” The program traces its roots back to the 1970s, and the amount of goods flowing through it comes in waves. One high point was in the early 1990s, as bases around the country were closing and the military was downsizing. In the 12 months through September, used weapons valued at $235 million were put into the program, with some $220 million of those being offered free. Since the current depreciated values generally represent around 15 percent of the purchase price, that puts the original value at $1.56 billion. Soon the program is supposed to get a vast infusion of ships, helicopters and planes from the Coast Guard, which is getting a new fleet. Critics say that the government may not be able to control how these weapons are finally used. While the State Department says it will not ship arms to countries with human rights violations and prohibits countries receiving weapons from selling them to others, critics argue such restrictions can provide false comfort. “The United States believes that if we sell weapons at low prices to other countries, we can control their foreign policy or military actions,” Ms. Stohl said. “But in reality, once you sell or give it away, you lose control of what was done with it.” As an example, Ms. Stohl said the Pentagon was selling excess M-16s to the Dominican Republic, which shares a notoriously porous border with Haiti, at a time when international peacekeepers were facing off against Haitian rebels. Government officials counter that there are controls in place to monitor the use of the equipment and prevent it from falling into the wrong hands. One of the largest recipients of excess defense articles has been the Philippines. When President Bush met with President Gloria Arroyo of the Philippines in Washington in 2003, he promised 20 used UH-1 Huey helicopters to help the country wipe out a three-decade-old communist insurgency, the New People’s Army. “These helicopters are a demonstration of an attachment,” said Maj. Gen. Roberto Sylim, the Philippines’ military attaché in Washington. “We are assisting an ally and getting equipment free or at cost. We hope to maintain this kind of strong relationship in the global war on terrorism.” Since 9/11, the Philippines has received 14,600 used rifles with an original price tag of $13.3 million, two dozen cargo trucks that initially cost $41,000 each, a C-130B cargo airplane and Coast Guard patrol boat.

Ms. Brian, of the Project on Government Oversight, suspects the Pentagon may be pushing perfectly usable military goods out the door to make way for new ones. “The Pentagon is always trying to mothball weapons,” said Ms. Brian. “It’s a perennial excuse to buy new ones.”

a2 circumvention - fmfFMF falls under the FMS frameworkMaloberti 12 (Matias, career in the Argentine Navy, serving for more than 10 years in as a communications officer. This background gives Matias an insiders’ understanding of the military in a developing country, which faces different resource constraints and capacities than the U.S. armed forces. After leaving the navy, Matias earned his MBA and entered the world of international military sales. Working for the U.S. Military Group in Quito, Ecuador, he coordinated the logistics for all U.S. Foreign Military Sales (FMS) to Ecuador. There he helped U.S. defense companies to identify market opportunities and navigate the logistics of a direct commercial sale or an FMS transaction. During this time, Matias completed all available training from the U.S. DOD on Foreign Military Sales and Financing, LMDefense, “Military Export Basics: What is FMF,” 10/31/12) Heublein

How does FMF work? Most FMF-funded purchases are made through the Foreign Military Sales (FMS) framework. A

few countries have received exceptions to use FMF funds for Direct Commercial Sales. Foreign Military Financing funds are budgeted three years in advance, as part of the regular State Department budget cycle. For FY2011, the total funding for the FMF program was $5.37 billion. The FY2012 estimate was $6.31 billion. (Source – pdf file; see p. 171) How does an FMF-financed sale work? For the

most part, an FMF-financed sale works just like other sales under the Foreign Military Sales process. The main difference is that funding comes from the FMF program rather than the foreign government customer. (A sale may be fully funded through FMF, or may be partially FMF-funded and partially paid by the foreign customer.) This has the benefit of helping allied countries buy military equipment they otherwise might not be able to afford, creating additional sales opportunities for U.S. defense companies. For U.S. defense companies, ensuring that Foreign Military Financing funds are available and budgeted to a particular sale will probably require additional coordination during the pre-LOR stage of the FMS process. We’ll discuss the pre-LOR process in more detail in a separate post. FMF vs. FMS Clients often ask me about the difference between Foreign Military Financing and Foreign Military Sales. In reality, FMF and FMS aren’t directly comparable. FMF provides funding for defense purchases, while FMS is the program for managing the sale and transfer of military

items. Sales funded by FMF are almost always processed through the FMS program. (Only a few countries have exceptions to use FMF funds for Direct Commercial Sales.) The FMS program, on the other hand, may be used for FMF-financed sales, or for sales paid for by the foreign customer.