Apr 02, 2020
Global crises have a unique way of making underlying weaknesses in international security burn brightly. Starting in the late 1990s, the crisis was the escalating number of intra-state armed conflicts. These conflicts were being fueled at alarming rate by the mass diffusion of firearms to rogue militias, terrorists, and other warring parties. The United States responded by leading efforts to enhance national and international controls on firearms exports. Now, as of March 9, 2020, the United States is reversing course on some of these key efforts even though many of the underlying weaknesses persist. The crisis began with the end of the Cold War. In less than five years, the promise of a more peaceful world looked more like “a state of chaos in which intra-state conflicts spilled over national borders, turned entire regions into wastelands, and caused unprecedented numbers of civilian deaths.” These wars were raging across the globe, from the Congo to Afghanistan to Albania. Unlike inter-state war, the insurgents and militias in these intra-state wars predominately fought with assault rifles, grenades, and mortars. And, they were receiving tens of thousands of them from external sources, which was escalating the death toll. At the same time, there was a growing threat from terrorist groups and criminal gangs. In 2003, the State Department indicated that more than half of the “roughly 175 terrorist incidents” it had identified in that year were committed using firearms. Organized crime in Mexico was increasingly deadly along the U.S.-Mexico border. “The unregulated and illegitimate sale of large quantities of weapons,” was a key problem fueling the violence, said then-U.S. Secretary of State Madeline Albright in 1998. These sales were often done “via middlemen, to places unknown, for purposes unasked, to end-users whose identities are not investigated.” As industrial countries cut their defense forces and found themselves with large surplus stockpiles of weapons, especially in Eastern Europe, private arms dealers skilled at bribery found it easy to take advantage of the situation. The once strongly controlled international arms trade withered. Enhancing export controls In response, the United States led a national and international effort to better control exports and surplus stocks of firearms. The State Department enhanced its efforts to register individuals that are engaged in the manufacture and export of U.S. arms. Secretary Albright said then that the United States had increased “scrutiny of export licenses to make sure that the named end-users are the real end-users” and no other abnormalities existed. U.S. laws tightened on arms brokers. The United States also decided to “refrain from selling arms to regions of conflict not already covered by arms embargoes.” Congress also took steps. In 2002, it required the administration to notify it of firearms sales valued at $1 million or more to better vet large quantities of firearms exports. The State Department also encouraged other countries to adopt similar or stronger national measures to curb firearms exports in regional and multilateral forums. It urged countries to establish “stronger steps, such as steps to…institute strict end-use and arms brokering controls…and curb weapons retransfers.” The administration supported “restraint with respect to the transfer of the surplus of small arms” and urged countries to “ensure the safeguarding of such weapons against loss through theft or corruption.” It also touted the U.S. government’s annual reports on arms sales, including firearms, as a model transparency measure. Pushing for eased exports controls More than a decade later, however, the Obama administration began pushing for reductions in export controls for arms, including certain types firearms. Concerned about the U.S. economic recession, top officials seemed to give into defense industry pressure that U.S. arms export controls were too strict. The United States needed to let go of its Cold War era regulations. The State Department discussed enhancing controls on firearms that were “inherently military” or that provided “a critical military advantage” and loosening controls on firearms readily available in the United States and elsewhere. It was the Trump administration that officially proposed to reduce U.S. firearms controls in a May 24, 2018 regulatory change. The rule proposed moving many types of firearms and ammunition from the State to Commerce Department oversight aims to “significantly reduce the regulatory burden on the US commercial firearms and ammunition industry…and promote American exports,” among other items. These firearms included semi-automatic AK-pattern and AR-15s rifles, 50 caliber Barrett sniper rifles, pistols, and most types of firearm ammunition. The rule would also allow foreign governments and private entities to buy thousands of firearms in one sale. The changes, however, risked easing key controls on firearms often used by insurgents, terrorists, criminal gangs, and other conflict actors. While these actors appear to rely on more diverse ways of obtaining firearms than two decades ago, weak national export controls remain an important concern. In fact, arms control experts continue to find cases of firearms and ammunition, including AK-pattern rifles and pistols easily converted to more lethal versions, being diverted from industrial countries to conflict zones in Libya, Somalia, and Nigeria. The State Department also often finds more risks with firearms exports than any other category of weapon. Reversing course on export controls Despite the continued objections by some congressional members and civil society, the Trump administration’s final regulatory change went into effect on March 9, 2020 with minimal amendments. While the changes are not bullish on unauthorized firearms sales, they are bearish on some key earlier approaches to curbing illegitimate U.S. firearms exports. For instance, it appears the Commerce Department will not regularly conduct the more detailed pre-export checks on arms export applications that the State Department does. These checks aim to verify the real end-users, sometimes with in-person visits, and dig deeper to identify any other risky anomalies. There are also key administrative and congressional checks missing that can help prevent the diversion of U.S. firearms. Companies do not have to register before exporting, which can help U.S. officials identify risky affiliates and subsidiaries. In most cases, companies do not have to provide written certification from the perspective end-user that the firearms will not be re-exported or misused as part of their export application process. The administration is also no longer required to notify Congress of proposed sales of firearms valued at $1 million or more and provide an annual report on firearms exported to every country. The Commerce Department’s oversight system is also weaker than the State Department’s at catching brokers and middlemen attempting to bribe officials. Companies must notify the State Department of any political contributions, marketing fees, or commissions or any defense offsets when they submit an arms export application to the State Department. The Commerce Department has no similar requirements. Re-adjust U.S. focus on firearms exports The international trade in firearms is too risky to minimize oversight over private actors that could divert weapons to unauthorized parties engaged in today’s conflict violence. In order to more effectively address the problem, the United States not only needs to do more to ensure U.S. weapons do not fall into the wrong hands but it also must be able to influence other countries to do so as well. The new regulatory changes reverse course on both fronts. However, the United States can re-adjust the U.S. approach by making several changes to firearms export controls. An important step would be for Congress and the administration to work together on a more effective approach to pre- and post-export end-use checks. The Commerce Department appears to have some good resources to conduct these checks, but it has focused too much on post-export checks. Congress could request the administration to provide more details on its specific approaches to conduct end-use checks for firearms to ensure they are as strong as those used by the State Department. Congress may also ask the Government Accountability Office to investigate the value of lost disclosures and certifications. Congress must also consider re-installing critical notifications and reporting. This includes ensuring that all proposed firearms exports controlled by the Commerce Department valued at $1 million or more continue to be sent to Congress for review. In the past, these notifications have helped curb very risky exports. An annual report on Commerce Department authorized firearms exports would also help identify potentially risk sales. Without a stronger focus on U.S. firearms export oversight, however, there is a greater risk that the firearms trade could again fuel the kind of violence that created the crisis in the late 1990s.