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Foreign military sales (FMS), pseudo-FMS, and a response to the GAO - is pseudo-FMS the way forward?

  I. INTRODUCTION
 II. FOREIGN MILITARY SALES FRAMEWORK
     A. Policy Guidance and Regulations
     B. How FMS Works
     C. The Primary Players in the Process
     D. Items Sold Through FMS
     E. Direct Commercial Sales
III. PSEUDO-FOREIGN MILITARY SALES
     A. Pseudo-FMS Framework and Pseudo-FMS Players
     B. Pseudo-FMS and FMS Timelines
 IV. EVALUATING GAO CRITICISMS OF FMS AND PSEUDO-FMS
     A. Effectiveness of FMS End-Use Monitoring
     B. Effectiveness of NVD EUM in Afghanistan
  V. CONCLUSION


The United States cannot defend the free world's interests alone. The United States must, in today's world, not only strengthen its own military capabilities, but be prepared to help its friends and allies to strengthen theirs through transfer of conventional arms and other forms of security assistance.... Prudently pursued, arms transfers can strengthen us. (1)

--President Ronald Reagan

I. INTRODUCTION

In March 1941, President Franklin D. Roosevelt financially thrust the United States into WWII by signing the Lend-Lease Act. (2) Under Lend-Lease, the United States supplied the United Kingdom, the Soviet Union, China, and other nations with defense articles and supplies from 1941-1945. (3) Historians widely agree that this U.S. assistance was critical to the allied victory. (4) Through Lend-Lease the United States sent over $48 billion ($611 billion in 2012) worth of defense articles and supplies overseas, making the United States the "Arsenal of Democracy" even before entering the war. (5) The effect of Lend-Lease was soon apparent--Germany could not compete with the Allied powers when the United States reached full production of planes and tanks. (6)

Another example of foreign military assistance changing the course of war occurred in 1986 when the United States supplied 700 Man Portable Air Defense (MANPAD), FIM-92 Stinger missiles to the Mujahideen during the Soviet occupation of Afghanistan. (7) The Stingers were part of U.S. support for Operation Cyclone, a Central Intelligence Agency program to equip the Afghan Mujahideen. (8) Prior to introducing the Stingers, Soviet helicopters terrorized cities at will. (9) Less than a year after the Stingers arrived, at least 270 Soviet helicopters were shot down, decisively changing the course of the Afghan conflict. (10)

As these examples demonstrate, foreign military assistance is an important part of U.S. foreign policy. (11) This fact is underlined by upward trends in U.S. arms export value. (12) The United States has been the world's largest exporter of arms since 1992. (13) Since 2000, the United States sold defense articles and services to over 100 countries. (14) The primary method, by dollar value, of arming U.S. allies and friendly countries is Foreign Military Sales (FMS).

FMS reached $28 billion in sales in 1993, largely due to the Gulf War. (15) 2008 FMS figures exceeded $28 billion, and in 2009, FMS agreements reached $30.6 billion. (16) Pseudo-FMS is also a type of foreign security cooperation in which the United States, instead of selling arms or services to a foreign country, procures them from defense contractors using U.S.-appropriated funds and transfers the arms to allies or friendly countries. (17) Pseudo-FMS agreements totaled an additional $6.5 billion in 2009. (18) Thus, FMS and Pseudo-FMS transfers are big business in terms of dollars, and they can have even greater foreign policy effects by shaping the outcome when armed conflicts erupt. (19)

In spite of the increasing effects of FMS and Pseudo-FMS, many judge advocates are unfamiliar with the programs. This article will focus on orienting judge advocates to the basic framework of FMS and Pseudo-FMS procedures. After the overview, it will evaluate recent Government Accountability Office (GAO) reports that are critical of two aspects of the Department of Defense's (DoD) implementation of FMS and Pseudo-FMS, namely, end-use monitoring (EUM) and tracking of transferred military equipment. Finally, it will conclude that the upward trend in both FMS and Pseudo-FMS indicates that these are the preferred methods of accomplishing foreign security cooperation in the future.

II. FOREIGN MILITARY SALES FRAMEWORK
   It is not an understatement to say that FMS has a language of its
   own and that learning and communicating with the numerous acronyms,
   special terms, and organizational symbols is very often half of the
   battled. (20)


Current U.S. arms transfer law is based on two statutes, one regulation, and a DoD manual: the Foreign Assistance Act of 1961 (FAA) as amended, the Arms Export Control Act of 1976 (AECA) as amended, the International Traffic in Arms Regulation (ITAR), and the Security Assistance Management Manual (SAMM). (21) The FAA and the AECA are within Title 22, Foreign Relations and Intercourse, and under the general control of the Department of State (DOS). (22) The ITAR is the implementing regulation for the AECA and is likewise under the control of the DOS. (23) However, the DoD, primarily through the Defense Security Cooperation Agency (DSCA), administers the FMS program for the DOS (24)

Foreign Military Sales is not the only vehicle for foreign military assistance. Under the FAA and AECA umbrellas, the United States provides security assistance to other countries through twelve different programs. (25) While FMS is the largest of these programs by dollar value, other programs share the same overall purpose of building the defense and security capabilities of U.S. allies and friendly countries. (26) One of the programs, Direct Commercial Sales (DCS), is discussed briefly below because it can be an alternative to FMS. (27)

A. Policy Guidance and Regulations

The AECA identifies four conditions that must be met before the United States will sell a defense article or service to a customer country:

(1) The President must find that the sale would strengthen the security of the United States and promote world peace;

(2) The recipient country must agree not to transfer the arms or defense services to a third country without prior approval of the President;

(3) The recipient country must agree to maintain the security of the arms or defense services; and

(4) The recipient country must otherwise be eligible to purchase or lease defense items. (28)

These criteria have not changed since the AECA was passed, and the current SAMM reiterates them, and also provides definitions, purpose statements, and a procedural overview. (29) Further, the SAMM maintains a current listing of the countries and international organizations that meet the above eligibility criteria for FMS. (30) Most countries are eligible--out of 196 sovereign countries, only 18 are ineligible. (31) Other regulations that govern all U.S. federal procurement activities, including FMS and Pseudo-FMS are the Federal Acquisition Regulation (FAR), and for the DoD, the FAR as supplemented by the Defense Federal Acquisition Regulation Supplement, DFARS). (32)

B. How FMS Works

At its core, FMS is an exchange of information, money, and defense articles or services, in that order. This section gives a brief description of how the process works, touching on the main FMS milestones: eligibility, requirement generation, Letter of Request (LOR), Price and Availability (P&A), Letter of Offer and Acceptance (LOA), and administration/closeout. It also introduces a few essential concepts and terms, as necessary.

Foreign Military Sales begin with eligibility. As described above, a country listed at SAMM Table C4.T2 is generally eligible. (33) However, current events in the country may result in the customer's FMS eligibility being terminated or suspended. (34)

If a country is eligible, the next step is for the country to generate requirements based on that country's security objectives. (35) This determination may be the result of a threat analysis. (36) In deciding what to request, customer countries may require specific information on defense systems. Throughout the requirement generation process, the customer country may consult with and receive defense information from U.S. representatives, principally the in-country U.S. Security Cooperation Organization (SCO). (37)

Also during the requirement generation stage, a U.S. Security Assistance Survey Team will, if requested by the customer country, conduct an in-country survey to review military capabilities and make recommendations. (38) These teams are generally funded by the customer through an FMS case, i.e., paid for by the customer country. (39)

When specific written requirements are drafted, the country makes an official request to the United States in the form of a Letter of Request (LOR). (40) A country that is familiar with the specific requirements of interest, cost, and U.S. delivery capabilities may also request a sales offer directly in the LOR. In this case, the response from the United States government would be a Letter of Offer and Acceptance (LOA), which becomes a contract when executed. (41) However, if the requestor does not yet have enough information, the LOR may request price and availability (P&A) data only. (42)

The P&A data are rough estimates of cost and projected availability of defense articles and services. (43) These data are important because the United States obtains its own defense articles and services from the same defense contractors who may sell the requested items to a customer country. (44) Thus, P&A allows the customer country to determine whether it can afford a certain defense system, and more importantly, approximately when it could be delivered. Procedurally, if an initial LOR only requests P&A, a second LOR must be made to request a LOA. (45) The LOA represents a bona fide offer by the U.S. government to sell the described items at the indicated prices, until the offer expires. (46)

Once the U.S. government has a binding contract, the acquisition/ procurement engine within each military department addresses the request as if it came from a U.S. military unit. (47) For example, if the request is for F-16s, the Air Force's Program Management Office (PMO) is notified. That PMO team includes members of various disciplines (engineering, testing, contracting, logistics, financial management) currently procuring F-16s for various FMS customers, such as Iraq. (48) The PMO will then increase the quantity of its current procurements in order to gain economy of scale cost savings and efficiencies, as well as additional business for U.S.-based defense contractors. (49) The transaction would be advantageous to the United States even though it no longer purchases new F-16s for itself, because it continues maintenance for the F-16s in its inventory. (50)

The accompanying support and maintenance items for F-16s and other Major Defense Equipment (MDE) benefit the United States and other countries for the same reasons, but have the additional benefit of a certain degree of U.S. control. When the United States sells MDE to another country, and then breaks diplomatic relations with that country for any reason, it can stop continued support, maintenance, and logistics for that system, forcing the country to seek these items on the black market or attempt to reverse-engineer them in order to continue use of the MDE. (51) This action, particularly for high maintenance MDE such as aircraft, can significantly limit hostile use of U.S.-supplied MDE. (52)

During the contracting process, the U.S. government negotiates with defense contractors via a contracting officer using standard forms. (53) The contracting officer consults with the FMS purchaser as necessary concerning LOA clarification, identification of any special warranty provisions, requests for release of documents, and any minor or major amendments or modifications, among other issues. (54) Disputes arising between subcontractors, pre- or post- award, are dealt with in accordance with the Federal Acquisition Regulation (FAR), including litigation of disputes. (55) Additionally, there are several legal reviews of the developing and completed case file, as required by each military department. (56)

The final step is delivery of the defense articles and services. Although conceptually simple, delivery of FMS items is the subject of much GAO criticism. (57) For standard FMS cases, judge advocates providing oversight should be aware of the integral role of the transportation plan. (58) The export form DSP-94 is required for all FMS cases for permanent export, as well as all FMS cases for classified items. (59) For all Pseudo-FMS cases, the DoD transports, making the DSP-94 a DoD responsibility. (60)

C. The Primary Players in the Process

While several agencies may be involved, the majority of the work in the FMS process is done by a few key personnel. One of these is the case manager. (61) If not earlier in the process, the military department that corresponds to the type of article or training involved (Navy for maritime equipment, Air Force for aircraft, etc.) will assign a case manager to each FMS case during either P&A or LOA preparation. (62) There is only one case manager for each FMS case. (63) The case manager has primary responsibility for LOA content, as well as meeting the milestones toward offer, acceptance, delivery, follow-on support, and ultimately case closure. (64) Throughout the SAMM and DISAM Greenbook, tasks are also frequently ascribed to the "Implementing Agency," which is either a U.S. military department or one of eight security-related executive agencies. (65) As with other procuring activities, the contracting officer and judge advocate play a significant part. (66)

D. Items Sold Through FMS

There are several categories of defense articles sold through FMS. In ascending complexity and control, they are: Non-Significant Military Equipment (Non-SME), SME, Major Defense Equipment (MDE), classified items, and sensitive or missile-related technology. (67) Significant Military Equipment is items on the U.S. Munitions List because they require increased export control. (68) Generally, the more complex the items are, the greater the approval requirements. (69) Examples of FMS items sold include combat boots, military uniforms, airfield lighting, 105-155mm artillery, F-15SAs, F-15 upgrade packages, Apache and Blackhawk helicopters, various small arms, and Night Vision Devices (NVDs). (70)

E. Direct Commercial Sales

A DCS is an agreement directly between a customer country and a U.S. defense contractor. (71) For various reasons, a customer country may prefer to contact a U.S. defense contractor directly to purchase defense articles and services. (72) As FMS is a government-to-government purchase, some countries perceive political difficulties in such transactions. (73) DCS may also be preferred because for some items, it may be a faster process than FMS. (74) In DCS, the U.S. contractor obtains the export license rather than the SCO, and any other support associated with the procurement is negotiated directly between the customer and contractor. (75)

While there is no U.S. policy preferring FMS over DCS, there are certain items which--due to security, safety, and/or transportation reasons--are designated by the Defense Technology Security Administration (DTSA) for transfer through FMS only. (76) Such items include, for example, Airborne Warning and Control (AWAC) systems, cryptographic equipment, MANPADs, and Precise Position Service (U.S. military GPS).

Additionally, it is U.S. policy to sell "standard" U.S.-utilized defense articles and services rather than "non-standard" defense articles and services. (77) The policy promotes U.S. standard items to better take advantage of economy of scale cost-savings, and diplomatic weapon control as described above. Additionally, Foreign Military Financing (FMF) funding must be spent through the FMS process, vice DCS. (78)

III. PSEUDO-FOREIGN MILITARY SALES

Pseudo-FMS is the name of the process that uses the FMS procedural framework, but instead of selling defense articles and services to a customer country, the United States funds the purchase and transfer using appropriated funds. (79) Pseudo-FMS cases, in their present form, began after September 11, 2001. (80) In 2007, Senator Carl Levin, then-Chairman of the Senate Armed Services Committee, visited Iraq and found that FMS cases averaged 250 days in length from LOR to delivery. (81) Senator Levin wrote that half that time (125 days) is "still too long," which may have prompted processing of Pseudo-FMS cases in Iraq. (82) However, regardless of when Pseudo-FMS began, it is designed to arm U.S. allies and friendly countries that may lack financial resources, and to do so more rapidly than through traditional FMS procedures. (83)

The funds used for Pseudo-FMS are generally found in the National Defense Authorization Act (NDAA) and the Department of Defense Appropriations Act (DoDAA). (84) However, supplemental appropriations that are currently being used to fund Pseudo-FMS cases include the Afghanistan Security Forces Fund (ASFF), the Iraq Security Forces Fund (ISFF), the Pakistan Counterinsurgency Fund (PCF), and the Pakistan Counterinsurgency Capability Fund (PCCF). (85)

A. Pseudo-FMS Framework and Pseudo-FMS Players

Pseudo-FMS does not fit under the same AECA provisions that FMS does because it is not a sale to a foreign country or authorized customer, (86) which may be why it is referred to as "Pseudo." (87) In implementing the AECA, the ITAR addresses the FMS program at section 126.6(c), but even the most current version dated April 1, 2011, fails to mention Pseudo-FMS. (88) Although Pseudo-FMS procedures largely mirror FMS procedures, as prescribed by the SAMM, the statutory authority for Pseudo-FMS falls under either the FAA, section 632(b), or a different AECA provision, section 38(b)(2). (89) This can be a source of confusion for export licensing purposes because the ITAR, 126.6(c), exempts all FMS cases from licensing requirements, while Pseudo-FMS cases are not exempt. (90)

Although the administrative procedures are similar for Pseudo-FMS and FMS, the personnel typically performing Pseudo-FMS procedures are more frequently active duty military. (91) The majority of funds spent on Pseudo-FMS cases during the last fiscal year went through Combined Security Transition Command-Afghanistan (CSTC-A) and the Iraq Security Assistance Mission (ISAM). (92) Both CSTC-A and ISAM are under the control of United States Central Command (CENTCOM). (93) Additionally,
   [t]he organizations in Afghanistan and Iraq can loosely be termed
   "pseudo-SCOs" for a variety of reasons. First, their mission,
   including operational advice and training, exceeds that of a normal
   SCO under U.S. law. Second, these organizations are part of
   operational commands, rather than U.S. embassy country teams.
   As such, they do not report to the U.S. Ambassador, but to the GCC
   [Geographic Combatant Commander] through [military] channels. (94)


Thus, at CSTC-A and ISAM, where high volumes of Pseudo-FMS cases are processed, judge advocates play an essential role. (95) As the number and value of Pseudo-FMS cases continues to rise, more judge advocates who understand FMS and Pseudo-FMS will be necessary.

B. Pseudo-FMS and FMS Timelines

Processing timelines vary widely based on the complexity, value, and availability of the article or service being procured. (96) Most FMS and Pseudo-FMS cases occur within one year, (97) but for major weapon systems may take up to seven years from LOR to case closeout. (98) It takes the DoD similar periods of time to acquire its own MDE, such as the Mine Resistant Ambush Protected (MRAP) vehicle (over three years), (99) Tomahawk Cruise Missile (eight years), (100) and the F-22 (nineteen years). (101) FMS and Pseudo-FMS tend to work faster because articles sold or transferred are already in production for the United States, so no research and development is necessary. (102) Production and manufacturing time is still required in most cases. (103)

For both FMS and Pseudo-FMS, the longest phase of the life cycle is the execution phase. (104) The period from LOR to LOA, or for Pseudo-FMS, from Memorandum of Request (MOR) to LOA, is relatively short, i.e., one to six months in most cases. (105) In Afghanistan, for example, MOR to LOA averaged approximately 40 days. (106) The LOA preparation is significantly faster for Pseudo-FMS LOAs because the customer is the military department instead of a foreign country. (107)

The previous sections introduce a judge advocate to FMS and Pseudo-FMS by describing, among other things, the potential for this form of security cooperation to change the course of war, the policy, statutory, and regulatory framework, and key procedural steps. A few benefits highlighted include interoperability, economy of scale cost-savings, business for U.S.-based defense contractors, and diplomatic weapon control. In the current trend of tightening budgets and defense cutbacks, these benefits are especially attractive, according to Mr. Frank Kendall, Acting Under Secretary of Defense for Acquisition, Technology, and Logistics. (108) However, in spite of the benefits, the processes have been criticized by the GAO, providing a valuable perspective for judge advocates to appreciate.

IV. EVALUATING GAO CRITICISMS OF FMS AND PSEUDO-FMS

The GAO has been critical of FMS, and to a lesser extent Pseudo-FMS, over the last decade. (109) Specifically, the GAO "reported on numerous weaknesses in the [defense] export control system." (110) Interestingly, notwithstanding the criticism, Congress continues to confirm growing figures of FMS agreements and pass increasing appropriations that fund Pseudo-FMS. (111) A recent example is the $30 billion FMS of 84 F-15SAs (Saudi Avanced) to Saudi Arabia, finalized in December 2011. (112) The upward trend of both FMS and Pseudo-FMS suggests that the benefits of these programs outweigh the costs. This section will evaluate recent GAO criticisms in light of AECA's statutory requirements. (113)

Since January 2009, the GAO ramped up reporting on weaknesses of FMS and Pseudo-FMS, issuing seven reports to date. (114) These reports claim FMS and Pseudo-FMS, as currently implemented, have significant problems including, ineffective end-use monitoring, and ineffective tracking/reporting of military equipment. As shown below, these claims miss the mark when the statutes and data are closely examined.

A. Effectiveness of FMS End-Use Monitoring

The AECA requires U.S. government agencies involved in arms transfers to monitor the use of those arms by the recipient country, i.e., end-use monitoring (EUM). (115) The DOS shares EUM responsibilities with the DoD: DOS administers EUM for Direct Commercial Sales under a program called Blue Lantern, while DoD administers EUM for all FMS under a program called Golden Sentry. (106)

The EUM statutory requirements are to "improve accountability" for defense articles, to provide "reasonable assurance" that the articles are used consistent with the "purposes for which they are provided," and to prevent diversion, i.e., theft or illegal re-transfer. (117) Under Golden Sentry, there are two types of EUM: routine and enhanced. (118) Generally, EUM under Golden Sentry focuses on accountability, security, use and transfer or disposal of FMS articles. (119) Enhanced EUM measures--such as greater physical security/accountability requirements and possibly a compliance assessment visit by DSCA--are required for sensitive articles and technologies such as NVDs, MANPADs, Advanced Medium Range Air-to-Air Missiles (AMRAAM), cruise missiles (Tomahawk), and Unmanned Aerial Vehicles (UAV). (120) Routine EUM often consists of a post-shipment check to ensure delivery of the articles by the SCO, in conjunction with other duties. (121)

The recent GAO report discussing EUM highlights the difference between DoD and DOS EUM procedures and database capabilities. (122) The report found that the DuD EUM database, the Security Cooperation Information Portal (SCIP), was capable of confirming whether past inventories were conducted, but could not confirm whether the inventories were conducted on schedule. The report concluded, "DUD does not currently have assurance that its personnel in the Gulf countries completed past inventories on time, which may have resulted in gaps in accounting for sensitive equipment shipped through FMS." (123) While the conclusion may be accurate, the report may also mislead readers regarding DuD EUM compliance. Specifically, Golden Sentry's inventory schedule is self-imposed; AECA only requires "improved accountability," "reasonable assurance" of end-use and diversion prevention. (124) Measured against statutory requirements, DuD is certainly compliant.

The same section of this report shows that the six Gulf countries surveyed purchased a total of 14,367 defense articles requiring enhanced EUM as of August 2011, but 63 articles were lost or could not be observed. (125) The report does not put the facts in context--specifically, 63 lost articles represent less than one-half of one percent over three decades of FMS with six different countries. (126) Moreover, the majority of articles (73%) transferred are small, personal-sized NVDs which were sold beginning in the 1990s. (127) This feat of moveable property accountability is remarkable by any standard, but particularly for a military endeavor. (128) Such positive results frequently escape U.S. military units conducting inventories of U.S. equipment in garrison.

As these two examples show, FMS EUM in the Gulf countries meets or exceeds statutory requirements and has an effective accountability record. These positive aspects of FMS EUM are not mentioned in the report, and tend to undermine the conclusion of the report captured in the title, "Implementation Gaps Limit the Effectiveness of End-Use Monitoring." (129)

B. Effectiveness of NVD EUM in Afghanistan

One section of another GAO report has a similar flaw. In GAO-09-267, "Afghanistan Security: Lack of Systematic Tracking Raises Significant Accountability Concerns about Weapons Provided to Afghan National Security," the report discusses EUM of NVDs provided via Pseudo-FMS to the Afghan National Security Forces (ANSF). (130) Specifically, the report criticizes Combined Security Transition Command-Afghanistan (CSTC-A) because 15 months after transfer, "[o]f the 2,410 [NVDs] issued, 10 are currently unaccounted for, according to CSTC-A." (131)

To be fair, this section of the GAO report also pointed out that EUM of the NVDs had a slow start because DSCA was not aware of CSTC-A's transfer. (132) Yet the accountability result is similar; 10 NVDs unaccounted for out of 2,410 is less than one-half of one percent. Given the widespread illiteracy of Afghan Army personnel, (133) the historical culture of corruption, (134) and the fact that CSTC-A is building a military from the ground up, the accountability of 2,400 out of 2,410 NVDs over a year after transfer is a resounding success story. Thus GAO's findings regarding equipment tracking fail to support the conclusion claimed by the title, "Lack of Systematic Tracking Raises Significant Accountability Concerns."

V. CONCLUSION

This article serves as an introduction and starting point for a judge advocate assigned to work involving FMS or Pseudo-FMS. It concentrates on FMS rather than Pseudo-FMS because Pseudo-FMS builds on the FMS foundation, as shown in section III. After reviewing the basic framework of both processes, it highlighted benefits to the U.S. including interoperability, economy of scale cost-savings, business for U.S.-based contractors, and diplomatic weapon control. This article also introduced judge advocates to a sample of GAO reports critical of two aspects of FMS, and determined that the criticisms are misplaced.

The trend in value of defense articles and services sold or transferred is upward. (135) As noted in section III, Mr. Frank Kendall identifies with the benefits of FMS, and plans to encourage the program. The upward climb in value of Pseudo-FMS transfers is particularly steep, surpassing all other appropriated security cooperation program values in 2010. (136) Therefore, FMS and Pseudo-FMS appear to be the foreign security cooperation vehicles of choice in the near future, making a basic understanding of these processes invaluable to the judge advocate's skill set.

(1) President Ronald Reagan, National Security, Decision Directive 5, THE FEDERATION OF AMERICAN SCIENTISTS, July 8, 1981, http://www.fas.org/irp/offdocs/nsdd/23-1464t.gif.

(2) An Act to Further Promote the Defense of the United States, 22 U.S.C. [section][section] 411-419 (1941). This act is commonly referred to as Lend-Lease.

(3) Id. Accord R.G.D. Allen, Mutual Aid Between the US and The British Empire, 1941-5, 109 J. ROYAL STAT. SOC'Y 243, 245 (1946).

(4) Roger Munting, Lend-Lease and the Soviet War Effort, 19 J. OF CONTEMP. HIST. 495, 503 (1984) (quoting Russian historian N.S. Khrushchev, "without Spare we should not have been able to feed our army"). Munting also notes that the United States shipped 409,256 military trucks to the U.S.S.R. alone and that one-quarter of all supplies sent was food items. Id. See also W. AVERELL HARRIMAN & ELIE ABEL, SPECIAL ENVOY TO CHURCHILL .AND STALIN, 1941-1946, 277 (1st ed. 1975) (quoting Josef Stalin, "The United States is a country of machines. Without the use of these machines, we would lose this war.").

(5) WARREN F. KIMBALL, THE MOST UNSORDID ACT: LEND-LEASE, 1939-1941 147 (Kimball, 1st ed. 1969).

(6) GEORGE MELLINGER, SOVIET LEND-LEASE FIGHTER ACES OF WWII 6 (Tony Holmes, ed., 1st ed. 2006) (noting that "scores of thousands of military aircraft" were transferred to U.S. allies as part of Lend-Lease).

(7) COLONEL (COL) EDWARD B. WESTERMAN (RET.), THE LIMITS OF SOVIET AIRPOWER: THE BEAR VERSUS THE MUJAHIDEEN IN AFGHANISTAN, 1979-1989 77 (1st ed. 1997).

(8) Robert D. Billard, Operation Cyclone: How the United States Defeated the Soviet Union, 3.2 UNDERGRADUATE RES. J. U.C.C.S. 25 (2010).

(9) WESTERMAN, supra note 7, at 80.

(10) Id. at 75 (noting that "it is clear that both the psychological and physical impact of the Stinger proved decisive"). See also Dr. Robert F. Baumann, Compound War Case Study: The Soviets in Afghanistan, GLOBAL SECURITY.ORG, http://www.globalsecurity.org/military/library/report/2001/ soviet-afghan_compound-warfare.htm (last visited Jan. 25, 2012) (noting that the Stinger's impact on the Soviets was "unmistakable").

(11) CASSADY CRAFT, WEAPONS FOR PEACE, WEAPONS FOR WAR: THE EFFECTS OF ARMS TRANSFERS ON WAR OUTBREAK, INVOLVEMENT, AND OUTCOMES 2 (1999).

(12) DEF. SEC. COOPERATION AGENCY (DSCA), HISTORICAL FACTS BOOK 20 (2010).

(13) ANTHONY J. PERFILIO, FOREIGN MILITARY SALES HANDBOOK 2 (2011). Also noting that in 1992, "U.S. exports accounted for more than half the total value of all arms sales to third world countries." Id. at 4.

(14) DSCA, supra note 12, at 2 (totaling 104 countries with Foreign Military Sales (FMS) agreements since 2000).

(15) PERFILIO, supra note 13, at 4. See also CRAFT, supra note 11, at 4 (noting that upward trends in arms transfers follow armed conflicts, citing U.S. transfers to Saudi Arabia following the first Gulf War as an example). Interestingly, the largest customers in dollar value of FMS from 1950-2009 are Saudi Arabia, Egypt, Israel, and Taiwan, in that order. DSCA, supra note 12, at 24-36.

(16) DSCA, supra note 12, at 3.

(17) DEF. INST. OF SEC. ASSISTANCE MGMT. (DISAM), THE MANAGEMENT OF SECURITY ASSISTANCE (Greenbook) 6-3 (2011).

(18) Id. at 1-2. See also U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-454, DEFENSE EXPORTS--FOREIGN MILITARY SALES NEEDS BETTER CONTROLS FOR EXPORTED ITEMS AND INFORMATION FOR OVERSIGHT 1 (2009).

(19) CRAFT, supra note 11, at 2.

(20) DISAM, supra note 17, at 5-13.

(21) Foreign Assistance Act, 22 U.S.C. [section][section] 2151-2296 (1961); Arms Export Control Act, 22 U.S.C. [section][section] 2751- 2799 (1976). Accord, PEREILIO. supra note 13, at 23. See also DISAM, supra note 17, at 2-2 (noting that the Arms Export Control Act (AECA) was originally enacted in 1968 under the name Foreign Military Sales Act, then revised and renamed the Arms Export Control Act in 1976). Since 2003, any amendments to and authorizations under the Foreign Assistance Act (FAA) and AECA have been included in other legislation such as the National Defense Authorization Act or the annual foreign operations appropriations acts. hl.

(22) DISAM, supra note 17, at 4-3. The "'bulk of the workload" is performed by Department of Defense (DoD) personnel, however, security cooperation in general and FMS in particular are administered on behalf of the Ambassador. Id. Additionally, a U.S. military member working at a Security Cooperation Office (SCO) may serve two masters: complying with DoD guidance while ensuring the work is compatible with the Ambassador's goals for the host nation, Id.

(23) U.S. DEP'T OF STATE. DIRECTORATE OF DEF. TRADE CONTROLS, http://www.pmddtc.state.gov/ regulations laws/itar.html (last visited Sept. 30, 2011).

(24) DISAM, supra note 17, at 1-1. See also Executive Order No. 11,958, 3 C.F.R. (1976-1980) (signed by President Jimmy Carter in 1977, detailing precisely which responsibilities under AECA are delegated to the Department of State (DOS), and which are delegated to DoD).

(25) DISAM, supra note 17, at 1-1. The twelve programs are: 1) FMS; 2) Foreign Military Construction Services (non-appropriated program for sale of design and construction services); 3) Foreign Military Financing Program (FMF) (appropriated grants and loans to purchase defense articles and services through FMS or Direct Commercial Sales); 4) Leases (of defense articles for up to five years) (a non-appropriated program administered by DSCA); 5) Military Assistance Program, (MAP was merged with FMF in 1990 but remains a current security assistance program because the U.S. must continue end-use monitoring of all MAP provided defense articles); 6) International Military Education and Training (IMET) (appropriated grant financial assistance, primarily for training foreign military members in U.S. military programs); 7) Drawdown (non-appropriated provision of U.S. DoD articles and services to a foreign country during a crisis); 8) Economic Support Fund (appropriated support administered by United States Agency for International Development (USAID)); 9) Peacekeeping Operations (appropriated funds primarily for United Nation (U.N.) peacekeeping efforts in tense regions administered by DOS); 10) International Narcotics Control and Law Enforcement (appropriated grant program administered by DOS to suppress worldwide narcotics operations); 11) Nonproliferation, Antiterrorism, Detaining, and Related Programs (appropriated grant program administered by DOS); and, 12) Direct Commercial Sales (DCS) (commercial exports by U.S. industry directly to a foreign government). Additionally, "Security Assistance" now falls into the broader category of "Security Cooperation. Id.

(26) DISAM, SECURITY MANAGER'S TRAINING, 4, https://disam.blackboard.com (last visited Dec 2, 2011).

(27) DISAM, supranote 17, at 15-4.

(28) 22 U.S.C. [section] 2753 (1976); PERFILIO, supra note 13, at 30. The same criteria are restated in the Security Assistance Management Manual (SAMM), infra note 29, at Table C4.T1.

(29) DSCA, SECURITY ASSISTANCE MGMT MANUAL (SAMM), http://www.dsca.osd.mil/samm (last visited Jan. 25, 2012).

(30) Id. at C4.T2.

(31) Id. Sovereign countries currently ineligible include Andorra, Aruba, Belarus, Bhutan, Cuba, Cyprus, South Sudan, Indochina, Iran, North Korea, Liechtenstein, Monaco, Montenegro, Nauru, San Marino, Syria, Western Sahara, and Yemen.

(32) PERFILIO, supra note 13, at 26. In addition to the DFARS, there is a supplement for each military service, i.e., the Army Federal Acquisition Regulation Supplement (AFARS), the Air Force Federal Acquisition Regulation Supplement (AFFARS), and the Navy-Marine Corps Acquisition Regulation Supplement (NMCARS).

(33) 22 U.S.C. [section] 2753. Additionally, sale or lease of defense articles and services is limited to countries and international organizations; persons are not eligible, id.

(34) SAMM, supra note 29, at C4.2.4; Perfilio, supra note 13, at 51. One of the probable scenarios resulting in a customer's eligibility suspension is a human rights violation, such as a customer's military using deadly force to quell a riot. Not paying back a previous loan from the U.S. may also restrict eligibility. Many scenarios leading to ineligibility are discussed by Perfilio, Id. at 51. Additionally, an easy to follow eligibility chart is maintained by the DOS at http://www.pmddtc.state. gov/embargoed_countries/index.html (last visited Jan. 25, 2012).

(35) SAMM, supra note 29, at C1.3.2.7 ("Foreign governments determine their security objectives based on their own priorities.").

(36) DISAM, supra note 17, at 5-2. A threat analysis is similar to a "needs assessment" described in the SAMM, supra note 29, at C1.3.3.2.

(37) DISAM, supra note 17, at 5-2. A SCO is an office located in the host-nation, frequently at the embassy, that operates under the authority of the Senior Defense Official/Defense Attach6 sponsored by DSCA. Id. The SCO "acts as the primary interface with the host nation on all security assistance issues", Id. at 4-1. The FAA limits the number of active duty military members permanently assigned to a SCO to six. FAA [section] 515 (22 U.S.C. [section] 23211); DISAM, supra note 17, at 17-1. However, there are exceptions to this limitation, particularly in SCOs where Judge Advocates serve, such as Afghanistan, Iraq, and Pakistan. DISAM, supra note 17 at 4-2. Additionally, the DoD only began using the term SCO in 2008 and before that used the now outdated term "security assistance office (SAO)." Id. at 4-3.

(38) SAMM, supra note 29, at C1.3.4.2; DISAM supra note 17, at 5-17.

(39) SAMM, supra note 29, at C1.3.4.2.

(40) Id. at C5.1.2 (listing LOR requirements). Also, LORs can be and typically are submitted via email. Id. at C5.1.3.4.

(41) DISAM, supra note 17, at 6-7 (sample FMS LOA). For a sample Pseudo-FMS LOA see id. at 6-13. In practice, the more closely the LOR and LOA mirror each other, the smoother and faster the process leads to agreement. Interview with Major Thomas Barrow, Contract Div. Instructor, The Judge Advocate Gen.'s Legal Ctr. & Sch., Charlottesville, VA (Nov. 7, 2011).

(42) DISAM, supra note 17, at 5-3.

(43) Id. at 5-7.

(44) Memorandum from Deputy Sec'y of Def., Gordon England to the Honorable Carl Levin, Chairman, Senate Armed Services Comm. (SASC) (Nov. 14, 2007) (on file with SASC) ("There is no separate acquisition system for FMS. The DoD buys for FMS just as it does for U.S. forces."). See also DISAM, supra note 17, at 9-4 ("The DoD does not maintain a separate acquisition infrastructure just for FMS. Instead, the DoD supports FMS by using the same acquisition infrastructure already established to support its own acquisition and logistics needs.").

(45) DISAM, supra note 17, at 5-7.

(46) Id. at 5-13. The offer expiration date appears on the first page of the LOA.

(47) DISAM, supra note 17, at 9-1, 9-2, 9-4.

(48) Dave Majumdar, Iraq Places Order for 18 t:-16 Falcons, AIR FORCE TIMES, Dec. 6, 2011, http:// www.aifforcetimes.com/news/2011/12/defense-iraq-orders-f-16s-120611/(last visited Jan. 25, 2012) (noting that the FMS agreement to sell 18 F-16s was reached in December 2011). Additionally, the United States sold F-16s to 25 other countries. See infra note 50.

(49) DISAM, supra note 17, at 15-6. Interoperability with customer countries is also a benefit arising from both FMS and Pseudo FMS. Id. at table 15-1 (chart comparing pros and cons of FMS).

(50) F-16 Fighting Falcon. GLOBALSECURITY.ORG http://www.globalsecurity.org/military/systems/ aircraft/f-16.htm (last visited Mar. 6, 2012) (noting that the U.S. Air Force took delivery of the last F-16 in 2005).

(51) Iranian Air Force, GLOBALSECURITV.ORG, http://globalsecurity.org/military/world/iran/airforce.htm (last visited Mar. 6, 2012). Cutting off F-14 Tomcat support reduced Iran from 77 operational U.S.-supplied F-14s to only 10 in less than 8 years, Id.

(52) Id.

(53) SAMM, supra note 29, at C6.3.5.2.

(54) Id. Note that the DoD obtains the same warranties for FMS as it does for itself, which is one benefit a customer country receives by purchasing through FMS. Id. at C6.7.1.6.2.

(55) Protests, Disputes, and Appeals, FEDERAL ACQUISITION REG. pt. 33 (Jul. 1, 2011).

(56) U.S. DEP'T OF AIR FORCE, AUR FORCE FED. ACQUISITION REG. SUPP. pt. 5301.602-2 (Jan. 12, 2012); U.S. DEP'T OF ARMY, ARMY FED. ACQUISITION REG. SUPP. pt. 5101.602-2 (Apr. 1,2010, revision #25); U.S. DEP'T OF NAVY, NAVY-MARINE CORPS ACQUISITION REG. Supp. pt. 5206.303-90 (Jul. 1, 2011). These legal reviews are generally required for procurements over certain monetary thresholds. Additionally, these reviews, along with all other administrative responsibilities, are paid for by the customer in the 3.7% administrative fee. DISAM, supra note 17, at 12-16.

(57) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-454, DEFENSE EXPORTS--FOREIGN MILITARY SALES NEEDS BETTER CONTROLS FOR EXPORTED ITEMS AND INFORMATION FOR OVERSIGHT (2009).

(58) DISAM, supra note 17, at 11-6. Some FMS customer countries use freight forwarders, which do not require transportation plans.

(59) Id. at Table 7-2.

(60) Id. at 11-12. Note that there could be multiple transport methods for one case, as well as multiple ports from which equipment will be shipped, Id. See also DISAM, supra note 17, at note 45 (discussing "above the line" and "below the line" transportation charges, which must be correct because transportation cost of MDE is a significant part of the procurement).

(61) SAMM, supra note 29, at C2.4; DISAM, supra note 17, at 5-14.

(62) SAMM, supra note 29, at C2.4; DISAM, supra note 17, at 5-14.

(63) DISAM, supra note 17, at 5-15.

(64) Id. at 5-14. SAMM, supra note 29, at C2.T2 contains a complete listing of case manager responsibilities.

(65) SAMM, supra note 29, at Chapter 5; DISAM, supra note 17, at Chapter 5 (using the phrase "implementing agency" over 50 times). "Implementing Agency" is generally referring to a case manager responsibility within a military department that corresponds to the FMS item.

(66) DISAM, supra note 17, at 17-12. In Afghanistan, Iraq, and Pakistan, the SCO has its own contracting officer(s) in country. Generally, for standard FMS cases, the contracting officers are CONUS based. Ordinarily, the only warranted contracting officer in country is a DOS employee attached to the embassy. Id.

(67) SAMM, supra note 29, at C5.1.3.2; DISAM, supra note 17, at 5-6.

(68) DISAM, supra note 17, at 5-5.

(69) SAMM, supra note 29, at C5.1.3.3.

(70) Interview with Major Thomas Barrow, Contract Div. Instructor, The Judge Advocate Gen's Legal Ctr. & Sch., in Charlottesville, VA (Mar. 1,2011); Telephone interview with COL Ron Todd (Ret.), former DSCA Deputy Gen. Counsel, (Oct. 31, 2011); Telephone interview with Walter Pupko, former DSCA Case Writing Div. Attorney, (Sept. 30, 2011). Examples of Pseudo-FMS items transferred include Mi-17 (Russian helicopters), High Mobility Multi-purpose Wheeled Vehicles (HMMWV), modified Ford Rangers, and various training services. Id.

(71) DISAM, supra note 17, at 15-1.

(72) Id.

(73) Id. at 1 5-4.

(74) Id. at 15-6. The customer may take more administrative/managerial/support risk in exchange for a faster procurement in the case of non-SME support items. For DoD inventoried items, FMS will generally be faster.

(75) Id. at 15-4. Generally, the customer assumes more risk through DCS because defense contractors are more likely to stop production of maintenance items or go bankrupt than the U.S. government.

(76) SAMM, supra note 29, at C9.7.4.1.1.

(77) SAMM, supra note 29, at C4.3.3.2 (describing exceptions to this policy); DISAM, supra note 17, at AB-30 (main policy). An example of a "standard" U.S. military item is an M-16 rifle; a nonstandard item would be an AK-47 rifle because it is not generally used by the U.S. military.

(78) DISAM, supra note 17, at 15-4. However, there is an exception that effectively follows this general rule: FMF is permitted to finance DCS to ten eligible countries (Israel, Egypt, Jordan, Morocco, Tunisia, Turkey, Portugal, Pakistan, Yemen, and Greece). SAMM, supra note 29, at C9.7.4.1.1; Perfilio, supra note 13, at 172-174. Also, the use of FMF to purchase items through DCS is known as Direct Commercial Contracting (DCC). Perfilio, supra note 13, at 172.

(79) DISAM, supra note 17, at 6-4.

(80) The author contacted Lieutenant Colonel (Lt Col) John "Ricau" Heaton, DSCA Deputy Gen. Counsel; COL Ron Todd (Ret.), former DSCA Deputy Gen. Counsel; and Lieutenant Colonel (LTC) Brett Floro (Ret.), DSCA Country Program Director. None could say definitively when Pseudo cases began, but all agreed it was after Sep. I l, 2001.

(81) Memorandum from Deputy Sec'y of Def., Gordon England to the Honorable Carl Levin, Chairman, Senate Armed Services Comm. (SASC) (Nov. 14, 2007) (on file with SASC).

(82) Id. Additionally, one reason the FMS process ended up being used for Pseudo-FMS cases is that it was faster than attempting to develop a new acquisition approach from scratch. E-mail from Lt Col John "Ricou" Heaton, DSCA, Deputy Gen. Counsel (Feb. 24, 2012, 08:59 EST) (on file with author).

(83) E-mail from Lt Col John "Ricou" Heaton, DSCA, Deputy Gen. Counsel (Feb. 24, 2012, 08:59 EST) (on file with author). This does not mean that Pseudo-FMS cases are only processed for U.S. partners who lack financial resources. Iraq and Pakistan, for example, have purchased items through FMS at the same time they received items through Pseudo-FMS cases. Id. Additionally, Pseudo-FMS cases are generally processed faster than FMS cases. E-mail from COL Ron Todd (Ret.), former DSCA Deputy Gen. Counsel (Feb. 11, 2012 16:32 EST) (on file with author).

(84) DISAM, supra note 17, at 6-4. No fund authorizations are required for standard FMS cases because they are sales, and because administrative costs are paid by the purchaser via a 3.7% fee. Id. at 12-16. Note also that FMS cases are generally exceptions to the Anti-Deficiency Act in that deferred payment sales, payment on delivery, and dependable undertakings are permissible.

(85) DISAM, supra note 17, at 1-8. Other funds not listed but also used for Pseudo-FMS cases include Afghanistan Infrastructure Fund (AIF), Coalition Readiness Support Program (CRSP), DoD Counterdrug Program, Global Train and Equip (1206), and Coalition Solidarity Funds (CSF). Id. Additionally, supplemental funds such as ASFF are not used exclusively for either FMS or Pseudo-FMS; a significant part of those funds are currently used in local direct procurement administered by CSTC-A. Telephone interview with COL Ron Todd (Ret.), former DSCA Deputy Gen. Counsel, (Oct. 31, 2011).

(86) 22 U.S.C. [section] 2751, 38(b)(2). The introductory language of the AECA specifically refers to approving "sales," and items which are "sold" and "exported." Id. Credit for this observation, and for the remainder of this subsection belongs to Lt Col John "Ricau" Heaton, DSCA Deputy Gen. Counsel, via e-mail (Nov. 1, 2011, 1608 EST) (on file with author).

(87) A pseudo-FMS transaction has the appearance of a FMS transaction, but is not actually one because it is not a sale to a foreign customer. The author suggests that a more transparent name could be helpful to those not generally familiar with FMS, such as Military Assistance Program via FMS Procedures.

(88) International Traffic in Arms Regulation (ITAR), 22 C.F.R. [section][section] 120-130 (2009).

(89) DISAM, supra note 17, at 6-5; practitioners consulted disagreed. This section of the FAA is codified at 22 U.S.C. 2392. Section 38(b)(2) of the AECA authorizes an exception to licensing requirements when the export is for "carrying out any foreign assistance or sales program authorized by law."

(90) 22 C.F.R. at [section] 126.6(c). For an example of confusion caused by the licensing difference, see pg. 18 of the proposed charging letter, charging Xe (formerly Blackwater) for failing to secure an export license. See U.S. DEP'T Or STATE DIRECTORATE Or DEF. TRADE CONTROLS, Aug. 13, 2010, http:// www.pmddtc.state.gov/compliance/consent_agreements/pdf/Xe_PCL.pdf; E-mail from Lt Col John "Ricau" Heaton, DSCA Deputy Gen. Counsel (Nov. 1,2011, 1608 EST) (on file with author). See also Ronald J. Sievert, Urgent Message to Congress Has the Time Finally Arrived to Overhaul the U.S. Export Control Regime?, 37 TEX. INT'L. L. J. 89, 92 (2002) (observing that export control is generally confusing and the control regime is a "'national embarrassment").

(91) DISAM, supra note 17, at Table 4-1 (noting that CSTC-A and ISAM are military organizations under CENTCOM operational control, while FMS case work is generally done by U.S. embassy country teams under DOS control).

(92) Telephone interview of COL Ron Todd (Ret), former DSCA Deputy Gen. Counsel (Oct. 31, 2011). See also DISAM, supra note 17, at 1-8 (stating that the $11 billion 2011 Afghanistan Security Forces Fund (ASFF) and the $2 billion Iraq Security Forces Fund (ISFF) are funds that are "often, but not always" spent using Pseudo case procedures).

(93) U.S. CENTRAL COMMAND, Area of Responsibility, Countries, http://www.centcom.mil/area-of-responsibility-countries (last visited Mar. 6, 2012).

(94) DISAM, supra note 17, at Table 4-1.

(95) Id. (showing CSTC-A and ISAM as two of nineteen SCO-type offices where Judge Advocates perform Security Cooperation duties that include either FMS or Pseudo-FMS). Also, Judge Advocates are required to review Pseudo-FMS agreements at various stages and with either similar monetary thresholds or the presence of similar risk factors as required by DFARS pt. 170 (Nov. 2011).

(96) E-mail from Lt Col John "Ricou" Heaton, DSCA Deputy Gen. Counsel (Jan. 11, 2012, 1630 EST) (on file with author) (noting there is no single source of processing times maintained by DSCA).

(97) E-mail from COL Ron Todd (Ret.), former DSCA Deputy Gen. Counsel (Feb. 11, 2012 16:32 EST) (on file with author).

(98) DISAM, supra note 17, at 5-1. Contra U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-454, DEFENSE EXPORTS--FOREIGN MILITARY SALES NEEDS BETTER CONTROLS FOR EXPORTED ITEMS AND INFORMATION FOR OVERSIGHT 16 (2009) (stating that the average "life of the agreement," [presumably until case close out] is twelve years); RICHARD COOPEY, GRAHAM SPINARDI, & MATTHEW UTTLEY, DEFENSE SCIENCE AND TECHNOLOGY: ADJUSTING TO CHANGE 158 (Richard Coopey et al eds., 1st ed. 1993) (noting that "lead time for major defence (sic) projects can be ten years or more").

(99) Peter Eisler, The Truck the Pentagon Wants and the Firm that Makes it, USA TODAY, Oct. 2, 2007, http://www.usatoday.com/news/military/2007-08-01-force-protection-mraps_N.htm (last visited Oct. 25, 2012) (noting that the MRAP made by Force Protection took over three years to deliver).

(100) Greg Goebel, ALCM and SLCM, VECTORSITE, http://www.vectorsite.net/twcruz_4.html (last visited Mar. 1, 2012) (noting that Tomahawk development began in 1972 and reached initial operational capability in 1980).

(101) JEREMIAH GERTLER, CONGRESSIONAL RESEARCH SERVICE, AIR FORCE F-22 FIGHTER PROGRAM: BACKGROUND AND ISSUES FOR CONGRESS 3 (2009) (noting the F-22 took nineteen years to deliver).

(102) DISAM, supra note 17, at 5-14.

(103) Id. Although the United States does stockpile some items on the U.S. Munitions List, a typical FMS case for standard equipment includes items both from U.S. stocks and from new procurement. Id.

(104) SAMM, supra note 29, at C6.2.

(105) SAMM, supra note 29, at C5.4.2.1 (indicating the processing time from LOR complete date to Anticipated Offer Date (AOD) is 120 days for Defined Order LOAs). Note that the MOR for Pseudo-FMS cases is the functional equivalent of the LOR for FMS cases.

(106) Telephone interview with Brett Ftoro, DSCA Country Program Director (Oct. 26, 2011).

(107) SAMM, supra note 29, at C11.3.3 (noting that the Pseudo LOA is not signed by the country receiving defense articles or services).

(108) Transcript of Cowen and Co. 33rd Annual Aerospace/Def. Conference, Feb. 9, 2012, in New York, New York, at 5, WALL STREET WEBCASTING, http://www.wsw.com/webcast/cowen5/111/(quoting Frank Kendall, "We've always been supportive of FMS, but I think we can up our game a little bit. ... [W]e're going to be encouraging Foreign Military Sales.... I think that the benefits both on the policy side for International Relations and for cooperation for interoperability to achieve our strategic aims in the world, as well as the economic advantages are all well.... We have positive balance of payments and its good for the economy obviously, so there's that as well.").

(109) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-11-135R, EXPORT CONTROLS: AGENCY ACTIONS AND PROPOSED REFORM INITIATIVES MAY ADDRESS PREVIOUSLY IDENTIFIED WEAKNESSES, BUT CHALLENGES REMAIN 1 (2010).

(110) Id. at 1.

(111) DSCA, supra note 12, at 2-3 (showing the upward trend in FMS agreements since FY 2000).

(112) U.S. Finalizes Sale of F-15s to Saudi Arabia, Fox NEws, Dec. 29, 2011, http://www.foxnews. com/politics/2011/12/29/us-to-sell-f-15s-to-saudi-arabia-officials-say/ (Last visited Oct. 25, 2012).

(113) Arms Export Control Act, 22 U.S.C.A. [section] 2753(a) (1976). The first AECA requirement is to promote world peace. Some sources contend arms transfers only promote war; however, there isn't "clear, consistent, and systematic evidence to this effect." CRAFT, supra note 11, at 2.

(114) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-11-135R, EXPORT CONTROLS; AGENCY ACTIONS AND PROPOSED REFORM INITIATIVES MAY ADDRESS PREVIOUSLY IDENTIFIED WEAKNESSES, BUT CHALLENGES REMAIN (2010); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-12-89, PERSIAN GULF--IMPLEMENTATION GAPS LIMIT THE EFFECTIVENESS OF END-USE MONITORING AND HUMAN RIGHTS VETTING FOR U.S. MILITARY EQUIPMENT (2011); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-454, DEFENSE EXPORTS--FOREIGN MILITARY SALES PROGRAM NEEDS BETTER CONTROLS FOR EXPORTED ITEMS AND INFORMATION FOR OVERSIGHT (2009); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-267, LACK OF SYSTEMATIC TRACKING RAISES SIGNIFICANT ACCOUNTABILITY CONCERNS ABOUT WEAPONS PROVIDED TO AFGHAN NATIONAL SECURITY FORCES (2009); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-952, DEFENSE EXPORTS-REPORTING ON EXPORTED ARTICLES AND SERVICES NEEDS TO BE IMPROVED (2010): U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-10-918, PERSIAN GULF-U.S. AGENCIES NEED TO IMPROVE LICENSING DATA AND TO DOCUMENT REVIEWS OF ARMS TRANSFERS FOR U.S. FOREIGN POLICY AND NATIONAL SECURITY GOALS (2010); U.S. GOV'T ACCOUNTABILITY OFFICE, GAO- 10-557, EXPORT CONTROLS-OBSERVATIONS ON SELECTED COUNTRIES' SYSTEMS AND PROPOSED TREATIES (2010).

(115) 22 U.S.C. [section] 2785 (1996).

(116) DISAM, supra note 17, at 18-1. Blue Lantern is statutory, but the Golden Sentry program is not, rather it was created by DoDD 5111.1 and implemented by the SAMM and DoDI 4140.66 to provide protection equal to the requirements of the Blue Lantern program.

(117) 22 U.S.C. [section] 2785 (1996).

(118) SAMM, supra note 29, at C8.2.

(119) DISAM, supra note 17, at 4-7. Less formally, EUM answers the questions "does the transferee still have the article and is it being used legally?"

(120) SAMM, supra note 29, at C8.3. AMRAAMs must have a serial number inventory twice a year. Id.

(121) DISAM, supra note 17, at 4-7.

(122) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-12-89. PERSIAN GULF-IMPLEMENTATION GAPS LIMIT THE EFFECTIVENESS OF END-USE MONITORING AND HUMAN RIGHTS VETTING FOR U.S. MILITARY EQUIPMENT 15 (2011).

(123) Id. The report also repeats the same point at p. 17.

(124) Arms Export Control Act, 22 U.S.C.A. [section] 2785 (1996).

(125) GAO, supra note 122, at Table 5.

(126) Id. 63/14,367 = .0043.

(127) Id. See e-mail from Drew Lindsey, GAO Analyst-in-Charge for referenced report (Jan. 18, 2012, 10:50 EST) (on file with author) (confirming NVD's were transferred during 1990's). Also, NVD technology has developed rapidly much like computer technology, so that an NVD from 1995 is comparable to a laptop from 1995: while still functional it is worth much less and the threat is reduced.

(128) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-06-943, DoD EXCESS PROPERTY: CONTROL BREAKDOWNS PRESENT SIGNIFICANT SECURITY RISK AND CONTINUING WASTE AND INEFFICIENCY 3 (2006) (describing how garrison property disposition generally lacks effective accountability controls resulting in significant quantities of lost or missing items).

(129) GAO, supra note 122, at 1.

(130) U.S. GOV'T ACCOUNTABILITY OFFICE, GAO-09-267, LACK OF SYSTEMATIC TRACKING RAISES SIGNIFICANT ACCOUNTABILITY CONCERNS ABOUT WEAPONS PROVIDED TO AFGHAN NATIONAL SECURITY FORCES 4 (2009).

(131) Id. at 5.

(132) Id.

(133) Jennifer Griffin, Afghan Army Literacy Improves, Still Poses Problems, May 23, 2011, FOX NEWS, http://politics.blogs.foxnews.com/2011/05/23/afghan-army-literacy-improves-still-poses-problems (last visited Oct. 25, 2012) (noting that in May 2011, 86 percent of Afghan Army recruits were illiterate).

(134) EARNEST LEONARDO, ASSESSMENT OF CORRUPTION IN AFGHANISTAN, 1 (Qasim Akhgar ed., 2009) (noting that corruption has been a significant problem throughout the country's history).

(135) DSCA, supra note 12, at 2.

(136) DISAM, supra note 17, at 1-3 (showing the second largest appropriated fund-program, FMF, at $5.4 billion, and the third largest, IMET, $108 million).

MAJOR DEREK A. ROWE, Judge Advocate, United States Air Force. Presently assigned as General Counsel for the Exchange in Europe/SWA, located in Wiesbaden, Germany. J.D. 2004, J Reuben Clark Law School (Brigham Young University), Provo, Utah; B.A., 2001, Brigham Young University, Provo, Utah. Previous assignments include Chief of Operational Contracts, Ogden Air Logistics Center, Hill AFB, Utah, 2010-2011; Joint Investigative Committee Team, Law and Order Task Force, Baghdad, Iraq, 2009-2010; Chief of Military Justice, Ogden Air Logistics Center, Hill AFB, Utah 2008-2009; Chief of Military Justice, Kunsan Air Base, Republic of Korea, 2007-2008; Military Justice Trial Counsel, Sheppard AFB, Wichita Falls, Texas, 2005-2007. Member of the bars of Washington State, the Court of Appeals for the Armed Forces, and the Supreme Court of the United States. This article was submitted in partial completion of the Master of Laws requirements of the 60th Judge Advocate Officer Graduate Course, The Judge Advocate General's School, United States Army, Charlottesville, Virginia
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