(Bloomberg) -- The Trump administration is considering using a rarely cited provision in the Arms Control Act to clear arms sales to Saudi Arabia over congressional opposition, according to a person familiar with the matter and U.S. lawmakers.
The provision allows President Donald Trump to circumvent the normal approval process by declaring that an emergency exists that requires the sales to go through immediately “in the national security interests of the United States.”
Trump’s first foreign visit as president was to Saudi Arabia and he considers the kingdom a crucial ally in his efforts to isolate Iran. Yet both Democrats and Republicans have urged the U.S. to hold the Saudis accountable for the killing last October of columnist Jamal Khashoggi and for their role in Yemen’s civil war.
For more than a year, Senator Bob Menendez of New Jersey, the ranking Democrat on the Senate Foreign Relations Committee, has had a hold on $2 billion worth of precision-guided munitions kits for Saudi Arabia and another $1 billion sale to the United Arab Emirates over concerns about civilian casualties from the Saudi-led military campaign in Yemen.
He said Thursday in an interview that there would be bipartisan opposition if the Trump administration overrules this hold and other holds, and he warned that the companies involved may face consequences.
“Any attempt to export under that provision would be a violation of the Export Control Act,” Menendez said in an interview. “Do they want to subject themselves to the liability of that?”
Menendez said in a statement Thursday that he would “pursue all appropriate legislative and other means to nullify these and any planned ongoing sales should the administration move forward in this manner.”
Such an emergency declaration, if cited, would seem to leave Congress with few options and little legislative recourse.
But Senator Lindsey Graham, South Carolina Republican and a Trump ally, said on Thursday evening that there was a bipartisan effort underway to figure how how to prevent the administration from following through with the declaration.
“The Senate always has tools to deal with the administration,” he said, without elaborating.
“There’s pretty widespread concern that now’s not the time to go back to business as usual with Saudi Arabia,” Graham said, adding that that he had expressed his concerns to Secretary of State Michael Pompeo, who would play a major role in any decision.
Menendez’s hold on the sale has lasted much longer than it usually takes Congress to review arms deals.
Congress is typically notified by the administration of arms sales that exceed a certain threshold before the sales are completed. If the top Republican or Democrat on the House Foreign Affairs and Senate Foreign Relations Committees have any concerns, they can place an informal hold on the sale by refusing to consent to the notification process. This “informal hold” allows for those concerns to be worked out between the parties.
An emergency declaration circumvents that process and allow the sale to go through without the notification requirement. According to the law, the president is supposed to give Congress a “detailed justification for his determination, including a description of the emergency circumstances” and a “discussion of the national security interests involved.”
Arms sales to Saudi Arabia, which is the U.S.’s top weapons buyer, have become more controversial over the past year because of the Saudi-led military campaign in Yemen and concerns over civilian casualties there.
The killing of Khashoggi in the Saudi consulate in Istanbul worsened the kingdom’s relationship with Congress to the point where Republicans such as Graham have said they would oppose any sales to the kingdom until the matter was resolved. The U.S. and Saudi Arabia had total trade of $42 billion in 2018, according to data compiled by Bloomberg.
The strongest bipartisan statement yet on U.S.-Saudi policy was a joint resolution to withdraw U.S. support for the war in Yemen, which prompted Trump’s second presidential veto. The Senate failed to override that veto on May 2.
Menendez said his April 2018 block on the order would continue until he sees evidence that the precision-guided technology involved in the sale actually does reduce civilian casualties by turning gravity bombs into more precise “smart” bombs, as the administration has claimed.
Menendez and Graham this year re-introduced their Saudi Arabia Accountability and Yemen Act, which includes a suspension of arms transfers to Saudi Arabia as well as sanctions against anyone hindering humanitarian aid to Yemen or supporting the Houthi rebels active in that country.
A 2018 United Nations investigation concluded the Saudi-led coalition may have committed war crimes in its disregard for civilian life. With roughly 17,700 civilian casualties in the four year conflict, Congress has hardened its attitude toward Saudi Arabia.
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