Analysis | U.S. arms sales to Saudi Arabia send a message of impunity — Congress should step in

John Ramming Chappell

U.S. President Joe Biden gives a fist bump to Saudi Crown Prince Mohammed bin Salman during a recent trip to Jeddah on July 15, 2022. (Image: Saudi Press Agency/Wikimedia Commons/Cropped from original)

“We were going to in fact make them pay the price, and make them in fact the pariah that they are.” Joe Biden’s promise in a 2019 presidential debate to isolate Saudi Arabia sharply contrasts with his recent trip to the kingdom, which included a much-derided fist bump with Crown Prince Mohammed bin Salman. But, when it comes to U.S. arms sales to the Saudi government, Congress can — and should — hold the administration to its commitments.

The Biden administration’s current policy to end support for “offensive” Saudi operations is insufficient — it lacks binding force, and the offensive-versus-defensive distinction is too ambiguous to be meaningful. Congress should use all available tools to formally restrict U.S. security assistance and arms sales to Saudi Arabia.

President Biden’s promise

Early in his administration, President Biden pledged to end “all American support for offensive operations in the war in Yemen, including relevant arms sales.” The promise marked an improvement from the Obama and Trump administrations, which funneled tens of billions of dollars in arms to the Saudi government even as American-made weapons killed civilians in their homes, shopping at marketplaces, riding a school bus, mourning in a funeral hall, and celebrating a wedding. Despite numerous publicly reported examples, the U.S. government has failed to fully assess the human impact of its arms sales to Saudi Arabia.

Experts argue that the offensive-versus-defensive classification creates a distinction without a difference — the U.S. government has not defined the terms as a matter of policy, and they have no discernible legal meaning. Moreover, any U.S. security assistance to Saudi Arabia arguably violates Section 502B of the Foreign Assistance Act, which prohibits security assistance — including arms sales — to countries where the government engages in a consistent pattern of gross violations of human rights. For over five years, the State Department’s human rights reports have documented such violations by the Saudi government, including torture, forced disappearance and arbitrary detention, as well as abuses in Yemen.

Despite allegations of war crimes and violations of international humanitarian law by the Saudi-led coalition in Yemen, arms transfers continued until President Biden halted sales of some “offensive” weapons most commonly implicated in civilian deaths, such as precision-guided munitions. But in November 2021, the Biden administration approved its first major arms sale to Saudi Arabia: $650 million in air-to-air missiles. The administration justified the sale as necessary to shoot down armed drones sent by Yemen’s Iran-backed Houthi militant movement. Still, experts argued that the Saudi military would use the missiles to enforce its blockade of Yemen, which has contributed to widespread food insecurity and a public health crisis.

Logistical support for coalition strikes in Yemen has also continued, and in early 2022 the Biden administration replenished Saudi Arabia’s Patriot missiles. Last month, Reuters reported that the Biden administration might lift the ban on sales of “offensive” weapons to Saudi Arabia in return for an increase in oil output to compensate for a decline in Russian energy exports. Most recently, on August 2 the Biden administration announced a three-billion-dollar sale of Patriot missiles and related equipment to Saudi Arabia, citing “persistent Houthi cross-border unmanned aerial system and ballistic missile attacks on civilian sites and critical infrastructure” in the kingdom.

Continuing any security assistance to Saudi Arabia — whether “offensive” or “defensive” — sends a message of impunity for abuses in Yemen, the 2018 murder of Washington Post journalist Jamal Khashoggi, arbitrary arrests and forced disappearances of human rights activists, and large-scale repression of the kingdom’s Shiite minority. And, despite seemingly unconditional U.S. support to the Saudi government, Crown Prince Mohammed bin Salman did not provide the oil output hikes President Biden sought to reduce energy prices. Telegraphing impunity to preserve the U.S.-Saudi relationship has neither reduced economic pressures nor ended Saudi human rights abuses.

Congress’s opportunity

Progressives and restraint-minded conservatives in Congress have made efforts to formally restrict arms sales and other security assistance to Saudi Arabia.

Legislators have often introduced joint resolutions of disapproval in response to arms sales to Saudi Arabia. This mechanism, established in the Arms Export Control Act, permits Congress to block major weapons sales upon presidential notification. However, the executive can veto these resolutions. In 2019, in response to a proposed arms sale to Saudi Arabia and its coalition partners, Congress passed a joint resolution of disapproval through both chambers, getting closer to blocking an arms transfer via joint resolution than it had in decades. But President Trump vetoed the resolution, Congress failed to override his veto, and the Trump administration went through with the sale. Congress has continued voting on joint resolutions of disapproval concerning arms sales to Saudi Arabia, most recently in December 2021 on the Biden administration’s sale of air-to-air missiles. None has come as close to success as the 2019 vote.

Although Congress enacted Section 502B to address situations similar to U.S. arms sales to Saudi Arabia, enforcement is tricky. The judiciary has historically declined to hear cases regarding Section 502B based on standing and separation-of-powers concerns. The statute includes enforcement measures that Congress could use — namely a targeted reporting mandate and a joint resolution of disapproval to block or modify security assistance to any country. But Congress has only invoked the reporting requirement once and has never voted on such a joint resolution which, if passed, would be subject to a veto. Nevertheless, 502B reports and joint resolutions would provide valuable opportunities to draw attention to Saudi human rights abuses.

Drawing on the War Powers Resolution and the U.S. Constitution’s allocation to Congress of the authority to declare war, a bipartisan group of legislators has called for and introduced a resolution to end all U.S. participation in the war in Yemen.

Congress has relied on the National Defense Authorization Act (NDAA) as a vehicle for Yemen-related legislation. The annual defense policy bill authorizes hundreds of billions of dollars for the U.S. military and has passed annually for more than sixty years. As a “must-pass” bill, the NDAA offers a chance for legislators to append measures that would otherwise be unlikely to come to vote. A proposed Senate amendment of last year’s NDAA would have prohibited “Department of Defense support for the Saudi-led coalition’s offensive operations against the Houthis in Yemen.” But the Biden administration called the provision — which would have enshrined the president’s promise in law — “unnecessary.” It was cut from the final NDAA.

Legislators often introduce restrictions on U.S. security assistance to Saudi Arabia, but they rarely make it to the enacted NDAA. However, reporting requirements often succeed in the NDAA process and provide transparency regarding U.S. security assistance and civilian harm. The House version of this year’s bill, which passed last month, requires the State Department to develop guidance for investigating the use of U.S.-origin defense articles in Yemen in violation of relevant agreements and temporarily restricts arms transfers to Saudi Arabia.

Yemen’s ceasefire, extended for another two months on August 2, remains fragile, and the country’s security environment and humanitarian crisis could take a turn for the worse at any time. U.S. pressure on Saudi Arabia could help bring the war to an end. At the very least, Congress can make President Biden’s pledge to cease sales of offensive weapons legally binding and clarify the meaning of “offensive” and “defensive” arms. Such a measure could bind future administrations.

Regardless of the outcome of the NDAA process, Congress should use its full array of tools — including rarely used ones such as Section 502B and the War Powers Resolution — to end support for Saudi abuses. Congressional reliance on Arms Export Control Act joint resolutions of disapproval has left effective tools underutilized. Forcing votes on joint resolutions of disapproval, instituting reporting requirements, introducing amendments, and passing legislation will be necessary to keep attention on Yemen and alleviate the harm that U.S. support for the Saudi campaign has caused.

John Ramming Chappell is a J.D. and M.S. in Foreign Service candidate at Georgetown University, where he focuses on human rights and legal aspects of U.S. foreign policy. He serves as Senior Notes Editor for the Georgetown Journal of International Law, has worked at several foreign policy advocacy organizations, and is an Emerging Expert at the Forum on the Arms Trade. Follow him on Twitter at @jwrchappell.

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