New Delhi: The Joe Biden government Thursday approved the sale of 31 MQ-9B Remotely Piloted Aircraft (RPA) and related equipment to India for an estimated cost of $ 3.99 billion under what will be a Foreign Military Sale (FMS).
The State Department has also gone ahead and notified the Congress, which has a 30- day window to object to the deal.
As reported Thursday, government sources told ThePrint the Senate Foreign Relations Committee and House Foreign Affairs Committee had given the nod for the deal, after which the Congress was formally notified.
While the Congress has one month to object or seek modification, an actual contract could take a few months more because the final negotiations with the manufacturers of the predator drones — General Atomics — have to be concluded.
ThePrint takes a look at what is FMS and what are the various processes involved in such deals.
What is FMS
While one would imagine that the FMS will be under the Department of Defense (DoD), it is actually the State Department that is in charge.
This is so because the FMS programme is part of Security Assistance (SA) authorised by the Arms Export Control Act (AECA) and is a fundamental tool of the US foreign policy.
The FMS process is complex and, for a major weapon system sale, may last for many years. In FMS, a foreign country contracts with the Department of Defense to provide a defence article from stock or through a DoD purchase from the US defense industry.
This means that instead of a country buying directly from the American defence company, the DoD buys the product and then sells it to the country seeking the same.
The process constitutes several steps, with the first being the Letter of Request (LOR) from a foreign country.
According to the US State Department, the LORs can be vague, referencing simply an overall capability required, or they can lay out in detail a proposed procurement. LORs, which can be received via many channels, are processed by Defense Security Cooperation Agency (DSCA) and turned into draft Letters of Offer and Acceptance (LOA), which provide far more detail, including cost.
The LOAs — once fully approved with the U.S. government and accepted by the foreign government — ultimately constitute an agreement between the partner and Washington.
But before a country sends in the LOR, there are multiple discussions that take place at various levels between the two countries.
An LOR is only sent when the broad parameters of the deal are fixed, and the US expresses its willingness to sell the needed equipment. The draft LOA is provided by the DSCA to the State Department, where it reviews the case under the statutory, regulatory, and policy frameworks.
The processing times can vary depending on the circumstances of individual proposed sales.
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Congressional notification
The US Congress plays a critical role in oversight of arms transfers. Under the Arms Export Control Act (AECA), the US President must formally notify the Congress 30 calendar days before the administration can take the final steps to conclude a government-to-government foreign military sale of major defence equipment valued at $14 million or more, defence articles or services valued at $50 million or more, or design and construction services valued at $200 million or more.
According to the Congressional Research Service, the AECA contains a mechanism for Congress to adopt a joint resolution of disapproval for arms sales notified by the President but the “Congress has never successfully blocked a proposed arms sale via such a resolution”.
The Congress may adopt legislation to block or modify an arms sale at any time up to the point of delivery of the items involved.
The whole process starts each year with the annual ‘Javits’ report and briefing to the Congress on anticipated arms transfers in the coming year.
Informal notifications
The Department of State (on behalf of the President) submits an informal notification of a prospective major arms sale to the Senate Foreign Relations Committee and the House Foreign Affairs Committee before the executive branch takes further formal action.
This informal notification practice began with a 18 February, 1976 letter from the DoD making a commitment to give Congress these preliminary classified notifications.
Starting in 2012, the State Department implemented a new informal notification process, which it calls a “tiered review,” in which the relevant committees are notified between 20 and 40 calendar days before receiving formal notification, depending on the system and destination in question.
During a June 2017 testimony, then Acting Assistant Secretary of State Tina Kaidanow described this process as a “review period during which the Committees can ask questions or raise concerns prior to the Department of State initiating formal notification. The purpose is to provide Congress the opportunity to raise concerns, and have these concerns addressed, in a confidential process with the Administration, so that our bilateral relationship with the country in question is protected during this process”.
The Congressional Research Service notes that as per the Inspector General Report, the State Department “generally will not formally notify an arms transfer if a member of Congress raises significant concerns by placing a hold during the informal review stage,” adding that “the Department is not precluded from proceeding with an arms transfer subject to a congressional hold”.
The AECA contains provisions for Congressional review and disapproval of arms sales. The President may not proceed with a proposed FMS or DCS (Direct Commercial Sale) transaction if the Congress adopts a joint resolution of disapproval within the statutory review period of one month in case of a non-NATO member.
It is important to note that a Congressional recess or adjournment does not stop these review periods.
What are the chances of Congress rejecting drone deal
The AECA contains procedures for Congressional joint resolutions of disapproval concerning notified FMS and DCS transactions.
21 Section 36(b)(1) of the AECA prohibits the American government from issuing an LOA if the Congress “enacts a joint resolution prohibiting the proposed sale.” AECA Section 36(c)(2) prohibits the government from issuing an export licence for a DCS transaction if the Congress “enacts a joint resolution prohibiting the proposed export.”
The Congress has never successfully blocked a proposed arms sale via a joint resolution of disapproval. Nevertheless, it has, by expressing strong opposition to prospective arms sales, during consultations with the executive branch, affected the timing and the composition of some arms sales, and may have dissuaded the President from formally proposing certain arms sales.
President has the veto power
Incidentally, the President has the authority to waive the AECA statutory review periods. If the President states in the formal notification to the Congress under AECA Sections 36(b)(1), 36(c)(2), 36(d)(2) that “an emergency exists” which requires the sale (or export license approval) to be made immediately “in the national security interests of the United States,” he/she is free to proceed with the sale without further delay.
However, the President must provide Congress at the time of this notification a “detailed justification for his determination, including a description of the emergency circumstances” that necessitated his action and a “discussion of the national security interests involved.”
The President has used his veto powers on several occasions. For instance, on 24 May, 2019, then-Secretary of State Michael Pompeo stated that he had directed the State Department “to complete immediately the formal notification of 22 pending arms transfers” to Jordan, Saudi Arabia, and the UAE.
(Edited by Tony Rai)
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