Over the years, Congress has compiled a poor record in using its authority to shape U.S. arms export policy. In February, however, Senator Mark Hatfield (R-OR) and Representative Cynthia McKinney (D-GA) took a major step to change that by introducing legislation designed to expand congressional responsibility for, and authority over, U.S. arms transfers.
The "Code of Conduct for Arms Transfers Act of 1993," introduced at a news conference on February 1, marks the first legislative effort in a decade to broaden the authority of Congress to check executive branch decisions concerning U.S. weapons exports and military aid.
The code would require states to meet certain minimum criteria in their domestic and international practices in order to be eligible to receive U.S. military assistance or weapons. Countries failing to meet these standards (see box, below) could be eligible, but only if the president determines that a waiver is in the "national security interest" of the United States and Congress "enacts a law approving such exemption request." As co-sponsor McKinney puts it, the legislation "works as a sort of International Brady Bill," requiring that a country be pre-screened before it is eligible to receive weapons or military aid.
The four criteria established by the code essentially build on standards of international behavior the Clinton administration has identified as the major goals of its foreign policy. Under the legislation, U.S. arms transfers and assistance "may not be provided" to any foreign government that lacks democratic institutions, fails to respect human rights, is engaged in "acts of armed aggression" in violation of international law, and is not fully participating in the UN Register of Conventional Arms.
The major innovation of the legislation is that rather than attempting to impose an across-the-board ban on exports to certain countries, it gives the executive branch and Congress the opportunity-and the obligation--to explain their reasons for proposing transfers to controversial recipients.
HOW IT WOULD WORK
While the proposed legislation does not specify a timetable for reviewing a country's eligibility, a typical arms export approval process under the provisions of the code might work as follows: Each year at budget time, a president would submit two country lists. The first would comprise those countries the president certifies as automatically eligible to receive U.S. weapons and aid because they met the criteria established by the code. The second would include those countries that failed to meet the code's four standards, but which the president determines should nonetheless be eligible because it is in the national security interest of the United States.
Congress would then schedule hearings to review all requests for country exemptions. (The bill does not require hearings, but recommends them in non binding "sense of the Congress" language.) These hearings would provide a forum in which the human rights conditions and arms control practices of prospective recipient states could be openly debated by official and non-governmental specialists. Congress would then vote to approve or reject the president's proposed waivers by a simple majority of both houses.
Finally, when a particular sale is proposed, the existing requirements of the Arms Export Control Act would continue to apply. Under those provisions, the president must give Congress advance notification of proposed arms transfers. Congress can reject proposed exports with a two thirds majority vote by both houses.
THE CODE'S IMPROVEMENTS
The Hatfield-McKinney bill would make four major improvements in the current system of congressional oversight.
First, because it requires an affirmative vote to sustain a presidential waiver, the legislation forces Congress to face up to its responsibility in this increasingly important area of foreign policy. Congress is not now required to vote when a president proposes an arms sale, and, as a result, legislators--including those with defense industries in their home states--have opted to leave these controversial national security decisions up to the president. …