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Security Cooperation Programs Legislation and Policy

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  1. Security Cooperation ProgramsLegislation and Policy

  2. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  3. Security Cooperation Legislation • Arms Export Control Act (AECA)(22 U.S.C. §2751 et seq.) • Foreign Assistance Act (FAA)(22 U.S.C. §2151 et seq.) • Foreign Assistance Authorization Act (§7022, Div. I, P.L.112-74 for FY12) • State/Foreign Operations Appropriations Act (Div. I, P.L.112-74 for FY12)

  4. Other Sources of Security Cooperation Legislation • National Defense Authorization Act • P.L.112-81, 31 Dec 11, for FY12 • Defense Appropriations Act • Div. A. P.L.112-174 23 Dec 11, for FY12 • Emergency or Supplemental Funding Acts • None thus far for FY12 • Continuing Resolutions • Five necessary for FY2012

  5. Foreign & National Security Policy Objectives • Congress recognizes ... that Countries ... have valid (defense) requirements ... • To this end, ... [§1, AECA] ... authorizes sales ... (when) consistent with the Foreign Policy interests of the United States

  6. Goal – To help build and sustain democratic, well-governed states that respond to the needs of their people, reduce widespread poverty and conduct themselves responsibly in the international system. Objectives (with selected programs) Peace and security – FMFP, IMET, ESF, INCLE, NADR, PKO, ACI, FSA, SEED Governing justly and democratically – SEED, FSA, INCLE, ACI, etc. Investing in people – ESF, FSA, SEED, ACI, etc. Economic growth – ESF, SEED, FSA, ACI, etc. Humanitarian assistance Ref: FY12 Congressional Budget Justification Foreign Assistance Strategic Framework

  7. U.S. Conventional Arms Transfer Policy • Arms transfers continue to be a legitimate instrument of U.S. foreign policy • They are deserving of U.S. Government support when they: • Help allies and friends to deter aggression • Promote regional security, and • Increase interoperability among allies. PDD 34, 17 Feb 95

  8. Supporting U.S. Transfers • Decisions will be made on a case-by-case basis • Country team may support U.S. overseas marketing efforts • Active involvement by senior USG officials in promoting sales of particular importance to the U.S. • Support of international air and trade shows when determined to be in the best interest of the U.S. PDD 34, 17 Feb 95

  9. Authorities for FMS §21(a)(1), AECA - Sales from Stock “The President may sell defense articles and defense services from the stocks of the [DoD & USCG] to any eligible country...” §22(a), AECA - Procurement for Cash Sale “The President may enter into contract for the procurement of defense articles or defense services for sale...to any foreign country...” §23(a), AECA - Credit Sales “The President is authorized to finance the procurement of defense articles, defense services... by friendly foreign countries...”

  10. Recovery of Cost The FMS program must be managed at no cost to the USG (with certain exceptions specifically identified in the AECA) [§C9.3.1, eSAMM]

  11. Authorized Military Sales / Leases To friendly countries solely: • For internal security. • For legitimate self-defense • For preventing or hindering the proliferation of weapons of mass destruction and of the means of delivering such weapons. • To permit participation in regional / collective arrangements or measures consistent with the charter of the United Nations. • To enable foreign military contribution to public works and civic action programs [§4, AECA]

  12. Eligibility Requirements for FMS and Leases • Furnishing of defense articles / services must strengthen U.S. security & promote world peace. • No retransfers without Presidential consent • No use of articles / services for purposes other than for which furnished, unless consent of the President has first been obtained. • Recipient to maintain security of such article • Country or international organization must otherwise be eligible to purchase articles [§3, AECA]

  13. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  14. FAA General Prohibitions Security Cooperation is prohibited for countries which: • Consistently violate internationally recognized human rights. [§502(B)]. • Nationalize / expropriate U.S. property. [§620(e)] • Are communist countries [§620 (f).] • Sever diplomatic relations with the U.S. [§620(t)] • Repeatedly provide support for international terrorism [§620(A)]

  15. Other General Prohibitions Security Cooperation is prohibited for a country which: • Prevents a U.S. person from participating in furnishing assistance on the basis of race, religion, national origin, or sex (§666, FAA, and §5, AECA) • Deliver/receives nuclear materials or technology w/o appropriate international safeguards (§101-103, AECA) • Intimidates or harasses individuals in the U.S. (§6, AECA) • Has not taken adequate steps to halt drug trafficking (§490, FAA) • Violates “Use” provisions governing transfers (§505 (d), FAA)

  16. Other General Prohibitions Security Cooperation is prohibited for a country which: • Deposes elected head of government by military coup d’etat or decree (§7008, P.L. 112-74) • Is in default on loan repayments [§620(q), FAA, and §7012, P.L. 112-74] • Participates in economic boycott of Israel (§561-565, P.L. 102-236) • No assistance to countries that recruit or use child soldiers (§404, P.L.110-457)

  17. Other General Prohibitions Security Cooperation is prohibited for a country which: • Prohibits or restricts the provision of U.S. humanitarian assistance (§620I, FAA) • Is not in compliance with minimum standards for combating the trafficking in people (§110, P.L.106-386, as amended) • Nonpayment of NYC and Wash DC parking tickets and property taxes (§7055, P.L.111-117) • Taxation of U.S. assistance (§7013, P.L.111-117)

  18. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  19. Annual Arms Sales Proposal Report[“Javits’ Report”; §25(a)(1), AECA] • Required by Congress NLT 01 Feb each year from DoS, with DoD input • Lists FMS/DCS sales eligible for approval during current calendar year. • Major weapons/weapons-related defense equipment greater than $7M • Any other weapons/weapons-related defense equipment greater than $25M • Identifies “most likely” and “possible” sales • Classified report in two parts: FMS & DCS • Generally, no notifications until submitted

  20. FMS Notification to Congress • Foreign Military Sales reporting threshold • $50M total case value • $14M [Major Defense Equipment (MDE)] • $200M design and construction services • $100M / $25M / $300M for NATO countries, Japan, Australia, New Zealand, Israel, and ROK • Congressional review period • NATO/Japan/Australia/New Zealand/Israel/ROK - 15 days • Other countries - 30 days (with 20 days informal advance notification) • Congress can adopt joint resolution objecting to the sale. [§36(b)(1), AECA]

  21. DCS Notification to Congress • $50M total value or $14M (MDE) • $100M / $25M for NATO countries, Japan, Australia, New Zealand, and ROK • $1M for USML category I items (small arms .50 cal or less) • Congressional review period • NATO/Japan/Australia/New Zealand/ROK/Israel - 15 days • Other countries - 30 days • Joint resolution objecting to sale • President may require specific sales be made through FMS channels [§36(c), AECA]

  22. Third Country Transfers • $50M total value or $14M (MDE) (orig. acq. value) • $100M / $25M for NATO countries, Japan, Australia, New Zealand, Israel, and ROK • Congressional review period • NATO/Japan/Australia/New Zealand/ROK/Israel - 15 days • Other countries - 30 days • Joint resolution objecting to transfer • Exempted from congressional review • Maintenance, repair, or overhaul services • NATO cooperative cross-servicing or lead nation procurement [if in §36(b) notification] [§3(d), AECA]

  23. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  24. Missile-Related Legislation • Prohibition on the transfer of Stinger MANPADs to any country bordering the Persian Gulf, except to replace one-for-one those previously furnished and nearing the end of their shelf life. [§705, P.L. 106-280] • Termination of U.S. assistance to any government that knowingly transfers MANPADs to state-sponsors of terrorism or terrorist organizations [§12, P.L. 109-472]

  25. Cluster Munitions • No military assistance, to include DCS, for cluster munitions or related technology, unless: • The sub-munitions do not result in more than 1 percent in unexploded ordnance, and • The transfer agreement specifies: • that the munitions will only be used against clearly defined military targets, and • will not be used where civilians are known to be present [§7054(b), P.L.112-74]

  26. Anti-Personnel LandmineTransfer Moratorium • Extends moratorium on the sale, transfer, or export of such landmines from 23 Oct 92 to 22 Oct 14 • U.S. Policy: Seek verifiable international agreements to prohibit the sale, transfer, and export of these weapons, and to limit their manufacture, possession, and use [§634(j), P.L. 110-161]

  27. Landmine and Unexploded Ordnance Clearance • Clearing of landmines, etc. • During FY 2012, Nonproliferation, Anti-terrorism, Demining, and Related (NADR) Program and FMFP funding may be used for landmine and unexploded ordnance clearance. [Title IV, P.L. 112-74] • Grant transfer of demining equipment • For humanitarian purposes • Available from USAID or State Dept [§7054(a), P.L. 112-74]

  28. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  29. Emergency Crisis Management • §506, FAA / 1961 “Special Authority” • Permits drawdownof articles from USGstocks, and provision for services and training • Requires presidential determination/report to Congress that: • An unforeseen emergency exists • Requires immediate military assistance • Cannot immediately meet requirement under any other statutory authority

  30. Emergency Crisis Management (cont.) • $100M annual authorityfor military assistance from DoD. [§506(a)(1),FAA] • $200M annual authorityfor narcotics, refugee,natural disaster, anti-terrorism, nonproliferation, and Vietnam MIA/POW assistance from any agency. [§506(a),(2), FAA] • Not more than $75M from DoD • Not more than $75M for narcotics • Not more than $15M for Vietnam MIA/POW • 15-day notification for narcotics and anti-terrorism

  31. Emergency Crisis Management (cont.) • $25M of commodities and services annually from any agency for unforeseen PKO emergencies. [§552(c)(2), FAA] • $25M of FAA-authorized funding annually for unanticipated contingencies. [§451(a)(1), FAA] • $30M of commodities and services during FY12 for UN war crimes tribunals in former Yugoslavia or other such UNSC-established tribunals. [§7048, P.L.112-74] • Delayed FMS payment [§21(d), AECA] • Until delivery, • Up to 60 days (by DSCA) after delivery, or • Up to 120 days (by the President) after delivery.

  32. Emergency Crisis Management (cont.) • Presidential waiver of AECA 15/30- day congressional review for FMS [§36(b)], DCS [§36(c)], third country transfers [§3(d)], and leases [§62(b)]. • Special Authority [§614, FAA] • President may authorize assistance without regard to FAA, AECA, or related laws; notification is still required. • Worldwide, annual ceilings: $250M (Credit/ Grants), $750M (Cash); $50M per country, but up to $500M if victim of active aggression. • Does not create additional monies (current appropriations)

  33. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  34. Excess Defense Articles • FMS sale at reduced price [§21, AECA] • Grant transfer [§516, FAA] • For any country justified for such assistance • Countries identified in a DSCA notification to Congress • Determined preferable over sale because of benefit to U.S. foreign policy • Presidentially determined to have no adverse effect on U.S. marketing • 30-day notification for SME or articles originally valued at $7M or more

  35. Grant EDA (continued) • Delivery (transportation) priority for Portugal, Greece, Turkey, Israel, Egypt, Jordan, and Philippines • USCG EDA eligible for transfer • Total aggregate current value transferred annually cannot exceed $425M • Annual report NLT 1 Feb listing SME believed likely to be available for transfer as EDA during the next 12 months [§25(a)(13), AECA]

  36. Grant EDA (continued) • “As is - Where is” • However, PCH&T can be waived (DoD-funded) when: • Determined to be in U.S. national interest, • For a developing country receiving less than $10M in FMFP and IMET for the year, • Transfer does not exceed 50,000lbs, and • Completed on space-available basis. [§516(e)(1), FAA]

  37. Conditions of Eligibility - Grants • No defense articles or related training or other defense service shall be furnished to any country on a grant basis unless the country agrees to the following “use” provisions: • Limits use to government officers, employees, and agents • Does not permit unauthorized transfers • Does not permit use for purposes other than those for which furnished • Maintains required security • Will permit observation and furnish information • Returns equipment to the U.S. when no longer needed [§505a, FAA]

  38. Lesson Overview • General Constitutional/Legislative Authorities • U.S. Foreign Policy and the CATP • Sanction Authorities • Congressional Notification Requirements • Weapons-Specific Restrictions • Crisis Action Authorities • Excess Defense Articles • Building Partnership Capacity

  39. Train and Equip – Afghanistan/Iraq • $11.6B authorized (and appropriated) during FY11 for ASFF [§1510, NDAA, FY11, P.L.111-84] • DoD ASFF appropriation for FY2012 is $11.2B [Title IX, DoD Approp. Act, FY12, P.L.112-74] • DoS funding for FY12 to include continued ESF, INCLE, and IMET • $1.5B authorized (and appropriated) during FY 11 for ISFF [§1510, NDAA, FY11, P.L.111-84] • No DoD ISFF funding for FY2012 • DoS funding for FY12 to include FMFP along with continued ESF, INCLE, and IMET • DoD, with concurrence of DoS, may equip, supply, support, train, and fund Afghan/Iraqi security forces • Pseudo LOA process used for programs assigned to DSCA • Detailed 15-day congressional notification by USD(C) prior to obligation • DoD O&M funding generally available through end of following fiscal year

  40. “1206” Building Capacity of Foreign Military Forces • Up to $350 million annually of DoD funding for providing defense articles, supplies, and training to countries • to conduct C/T operations, or • to participate in or support military and stability operations in which U.S. forces are a participant. • FY12 limited to $100M annually • No FMFP in support of past “1206” programs • to build capacity of a country’s maritime security forces to conduct C/T operations • Not for countries not otherwise eligible by law for such assistance • Normally executed using non-FMS pseudo LOA procedures • Must be obligated by end of current FY with 15-day advance notification to Congress • Expires 30 Sep 2013 [§1206, NDAA, FY06, P.L.109-163, as amended]

  41. “1206” Building Capacity of Foreign Military Forces (cont) • Overall: 40 countries, 16 multilateral • Top Tier (44%): Yemen - $252.6M, Pakistan - $203.4M, Lebanon - $128.5M • Upper Middle Tier (19%): Philippines, Indonesia, Bahrain, Malaysia • Just initial support, no sustainment • FY11 emphasis was Africa and coalition partners • Questions: • Effectiveness • Sustainability • Timeliness • DoD military tool or DoS political tool • Permanent DoD authority or a sub-set of FMFP Ref: CRS Rpt RS 22855 of 13 Jan 12

  42. “1207” Global Security Contingency Fund (GSCF) • Authorizes a program for either DoD or DoS to provide equipment, supplies, and training assistance to countries designated by SecState, with the concurrence of SecDef, to: • Enhance the capabilities of a county’s national military and other security forces that conduct border and maritime security, internal security and counterterrorism operations, as well as their agencies to: • Conduct such security and counterterrorism operations, and • Participate in or support military, stability or peace support operations • Support the justice sector, rule of law programs, and stabilization efforts where determined that instability challenges the existing capabilities. • Any assistance is to be jointly formulated by DoD and DoS • Any USG agency may assign personnel to DoS for GSCF purposes • Any activity is to be 20% funded by DoS and 80% funded by DoD • $200M in FY12 DoD O&M is authorized for transfer to the GSCF [Sec. 8089, DoD Approp. Act, FY12, P.L.112-74] • $50M in FY12 INCLE, FMFP, or PCCF is authorized for transfer to the GSCF [Sec. 8004, S/FOAA, FY12, P.L.112-74] • Congress is to be notified prior to any transfer of funds and 15 days prior to initiating any GSCF activity • GSCF funds remain avail thru FY15 with the program to expire 30 Sep 15 [Sec. 1207, NDAA, FY12, P.L.112-84]

  43. “1207” GSCF Transitional Authority • Until SecState reports that GSCF procedures are in-place and operational, or NLT 30 Sep 12, an authority is provided to SecDef, with SecState concurrence, to provide equipment, supplies, training, and minor milcon assistance to enhance: • Not exceeding $75M, the capacity of national military and security forces, and border security forces in Djibouti, Ethiopia, and Kenya and to the African Union Mission in Somalia to conduct C/T ops against al-Qaeda, any of its affiliates, and al-Shabaab. • Not exceeding $75M, the ability of the Yemen MOI C/T forces against al-Qaeda and any affiliates in Yemen. • 15-day advance notification is required prior to any obligation [Sec. 1207, NDAA, FY 2012, P.L.112-81]

  44. Pakistan Security Cooperation • Pakistan Counterinsurgency Capability Fund (PCCF) • $850M appropriated to DoS for FAA/AECA assistance • Remain avail thru FY2013 [Title VIII, S/FOAA, FY2012, P.L.112-74] • SecState authorized to transfer any PCCF funding to the DoD PCF account [§204, P.L.111-73] • PCCF can be used to fund DoS share ($50M) of GCSF • $472M in agreements during FY2010 • Pakistan Counterinsurgency Fund (PCF) • $800M appropriated to DoD for security forces assistance, • Remain avail thru FY2012 [Title IX, DoD Approp. Act, FY2012, P.L.112-74] • Pseudo FMS LOA procedures are normally used

  45. “1208” Support of Special Operations to Combat Terrorism • Up to $50 million annually of DoD funding for providing support to foreign forces, irregular forces, groups, or individuals • Engaged in supporting or facilitating ongoing U.S. special forces operations to combat terrorism • Authority cannot be delegated below SecDef • Congressional notification NLT 48 hrs of use • With concurrence of the relevant COM • Pseudo FMS procedures are NOT used • Expires 30 Sep 2015 [Sec. 1208, NDAA, FY05, P.L.108-375, as amended]

  46. “1202” Significant Military Equipment (SME) Loans to Certain Forces • For combined operations forces in Afghanistan, or peacekeeping operations forces or while training for such deployment • Only USML Cat. I, II, III, VII, XI, and XIII items • Only when no unfilled U.S. rqmt exists, and with SecState national security interest concurrence • Transfer is subject to provisions of AECA and any other military export laws • The loan cannot exceed one year • Implemented using Acquisition Cross-Servicing Agreements (ACSAs) [10 U.S.C. 2341, et seq. and SAMM, C11.1.2] • Expires 30 Sept 2014 [§1202, NDAA, FY07, P.L.109-364, as amended]

  47. “1202” Significant Military Equipment (SME) Loans to Certain Forces Applicable U.S. Munitions List (USML) Categories • Cat I – combat firearms .50 cal or less • Cat II – guns greater than .50 cal • Cat III – ammo for cat I and II weapons • Cat VII – military vehicles (less tanks) • Cat XI – military electronics other than fire control equipment • Cat XIII – hardware associated with measurement or modification of system signatures for detection of military articles (SME portion) [Section 121.1, ITAR]

  48. “1233” Coalition Support Fund (CSF) • DoD O&M authorized thru FY2012 to reimburse key countries in support of oversea contingency operations • $1.69B appropriated for FY2012 [Title IX, DoD Approp. Act, FY12, P.L.112-74] • But Pakistan reimbursement authority thru FY2013 • For logistical, military, or other support, including access, provided by that nation to or in connection with U.S. milops in Operation New Dawn or OEF • Other support includes providing training, supplies, and equipment on a non-reimbursable basis • Subset program entitled “Coalition Readiness Support Program (CRSP)” implemented using pseudo-FMS LOAs • $238M in agreements during FY2010 • SecState concurrence required in consultation with OMB [§1233, NDAA, FY08, P.L.110-181, as amended]

  49. “1234” Logistics Support for Coalition Forces Supporting Operations in Iraq and Afghanistan • DoD O&M authorized thru FY2012 to provide up to $450M in DoD O&M funding for supplies, services, transportation and other log support to coalition forces in Iraq and Afghanistan [§1211, NDAA, FY12, P.L.112-81] • Includes airlift and sealift. • Applicable export laws are to apply. • SecDef must determine: • Supported forces are essential, and • Coalition forces would not be able to participate w/o the support. [§1234, NDAA, FY08, P.L.110-181, as amended]