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BGS In The New – What Biden’s New Arms Transfer Policy Means – And What It Missed On

BGS In The New – What Biden’s New Arms Transfer Policy Means – And What It Missed On

“Although the policy sharpened the focus on human rights in these many ways, it missed a unique opportunity to show its commitment to the defense industrial base at a time where more is being asked of it that any point since World War II,” writes former State official Josh Kirshner.

March 3, 2023
As originally appeared in Breaking Defense.

A year ago, Josh Kirshner of Beacon Global Strategies penned an op-ed for Breaking Defense predicting what a Biden administration’s Conventional Arms Transfer policy — the document that guides how arm sales are approved — might look like. With the CAT finally released last week, Kirshner returns to weigh in on what the new document does and doesn’t do. 

After being delayed for over a year, the Conventional Arms Transfer (CAT) policy was released finally on Feb. 23. Signed by President Joe Biden as National Security Memorandum 18, the policy explains the administration’s rationale for selling arms abroad and provides insight into how it will evaluate proposed defense exports — sales that totaled over $161 billion under Biden in fiscal 2021.

It’s important to understand what the CAT isn’t. The document is not designed to show a change in policy, but rather to codify the guidelines administration officials have informally considered since he came into office. It’s not a revolutionary break from the CATs of either the Trump or Obama administration. Given Biden’s long-standing commitment to working with partners and Allies, it is no surprise that the CAT emphasizes basic concepts like “the United States is stronger and safer when it works in concert with allies and partners” and that the policy will support shared security objectives.

The new CAT does provide a welcome clarification on how human rights are considered in export decisions. But it feels like a missed opportunity to explain how the US government will support a defense-industrial base that is under increased pressure from the Pentagon to keep up with domestic and international demand.

The most important new elements of the policy involve how the US will leverage arms exports considerations to strengthen human rights. These new concepts should be welcomed by human rights advocates frustrated by the lack of attention their issues have received, from the underwhelming Summit for Democracy to there still being no confirmed Assistant Secretary of State for Democracy, Human Rights, and Labor.

The clearest shift from Trump’s policy to Biden’s concerns the likelihood that exported arms would be used to commit genocide or crimes against humanity. The Trump language, like that in Obama’s 2014 policy, stated that the US government would need to have “actual knowledge” that the arms would be used to commit atrocities. The new language uses a “more likely than not” standard that the arms would be used for these purposes, a lower threshold that likely still does not fully reflect the human rights concerns of many policymakers in both the Executive branch and in Congress.

The policy also includes new language broadening the elements of human rights that the US will consider. The key paragraphs states that it will examine:

“The risk that the transfer will have adverse political, social, or economic effects within the recipient country, including by negatively impacting the protection of human rights, fundamental freedoms, or the activity of civil society; encourage or contribute to corruption; contribute to instability, authoritarianism, or transnational repression; contribute to impunity of security forces; or undermine democratic governance or the rule of law”

The language about how defense exports may impact the activity of civil society or contribute to corruption, instability, or authoritarianism is noteworthy, not only because it is new, but because of the technologies that language could impact. While most of the focus of previous CAT policies has been on traditional defense equipment, this language appears to apply moreso to surveillance, artificial intelligence, and other technologies that can be manipulated for domestic repression.

This makes the CAT policy relevant to new sectors of the US economy — and hopefully the administration will ensure that relevant companies are aware of the impact it will have on them.

As with all policies, implementation is key. One element that will be worth watching during the implementation phase is the need to “strengthen ally and partner capacity to respect their obligations under international law and reduce the risk of civilian harm” by providing training and other tools. What is not clear is how the US plans to do this. Will the Departments of State or Defense request additional appropriations to provide this training via the US military or contractors, or will they require it of US companies as part of select Foreign Military and Direct Commercial Sales? Or will it end up as a de facto self-reporting situation, rendering this language effectively toothless?

Australian Defense Minister Marles said “we really do need to be trying to build a seamless industrial base between the United States” and Australia.

Although the policy sharpened the focus on human rights in these many ways, it missed a unique opportunity to show its commitment to the defense industrial base at a time where more is being asked of it that any point since World War II.

Senior administration officials have made clear equipping partner and Allied militaries is an increasingly urgent priority. Much of the focus of US efforts along these lines have obviously focused on Ukraine, but Congress is also pushing for the administration to do more to support Taiwan — from expediting already approved sales to discussing massive new security assistance funding that can be used by Taipei to buy from US defense firms. And in a few weeks, the US, UK, and Australia are expected to announce how the three will work together to provide Australia with nuclear submarines.

Yet the new CAT policy deemphasizes strengthening the very defense industrial base that it is asking more of, by lowering it in the list of priorities when compared to the Trump and Obama policies. It also could have seized the timing of the policy’s release — just one day before the anniversary of Russia’s reinvasion of Ukraine — to explain how it would help defense companies’ efforts to export responsibly through increased advocacy and internal reforms to approve exports more quickly. Doing so would enable the defense industrial base to justify new capital expenditures and produce at the scale requested by the Pentagon and partner militaries.

This CAT policy is very much in line with the National Security Strategy’s (NSS) objective of “using our diplomatic power to build the strongest possible coalition to support a world that is open, free, prosperous, and secure” and makes commonsense, reasonable changes to the human rights criteria considered in evaluating arms transfers. Hopefully, the administration will now turn to making reforms to better support the defense industrial base as it responds to the needs of partners around the world to defend the principles expounded in the President’s NSS and CAT policies.

Josh Kirshner previously served as special assistant to the Under Secretary of State for Arms Control and International Security and as a professional staff member on the House Permanent Select Committee on Intelligence. He is currently a senior vice president at Beacon Global Strategies.