New tracking system for US weapons use overseas could be erased in a heartbeat

The Biden administration recently established a new system for responding to incidents in which a U.S. arms recipient is suspected of using American-made weapons to injure or kill civilians.

The policy represents the first systematic approach to monitoring when and where U.S. arms sales cause civilian casualties and aligns well with the Biden administration’s Conventional Arms Transfer (CAT) policy.

But an executive order is not enough to durably improve oversight of U.S. arms transfers. Congress should codify the new system into law, ensuring that it receives the resources and attention it needs to make an impact and making it impossible for a future president to end the program on a whim.

Losing this policy, or otherwise allowing it to languish, would mean eliminating the first process for tracking and punishing those who harm civilians with U.S. weapons. Having such a system in place is important because the United States itself has a terrible track record of harming civilians. And until now, the government did not appear to care about how many more were harmed by U.S. weapons in the hands of others.

The policy, known as Civilian Harm Incident Response Guidance (CHIRG), compels State Department officials to investigate and potentially penalize reported abuses of U.S. weapons abroad. Under this system, U.S. government officials will examine allegations of abuse reported by diplomatic or intelligence officials, the United Nations, international media, or civil society groups. If investigators deem a report valid, they will recommend a course of action that could include intensifying military training and education to shore up issues, curbing future arms sales until the recipient addresses its human rights problems, or other authorized diplomatic responses.

There are multiple security and humanitarian reasons to institutionalize such a policy. For example, there is evidence that U.S. national security is threatened when it sends arms to nations that frequently violate human rights. These risks include American-made weapons threatening U.S. troops, strengthening relations between autocrats and terrorist or criminal groups, and preventing less risky and strategically important partners like Taiwan from getting the weapons that they need.

The Cato Institute’s 2022 Arms Sales Risk Index analyzes the risks presented by every U.S. weapons recipient. While this year’s index shows that the Biden administration has thus far sold weapons to a less risky portfolio of clients than its two most recent predecessors, the White House continues to dole out significant numbers of weapons to some of the world’s riskiest countries, like Saudi Arabia, Turkey and Egypt.

Furthermore, the CHIRG allows the administration to finally put actions to its words. Biden’s CAT policy claims that the United States will strive to “prevent arms transfers that risk facilitating or otherwise contributing to violations of human rights or international humanitarian law.” Nonetheless, the White House continues approving massive weapons sales to some of the worst human rights abusers, including a recent deal to give 31 advanced drones to India despite concerns about the actions of Prime Minister Narendra Modi. A new policy analyzing civilian harm will at least force U.S. officials to confront the consequences of their decisions.

In fact, the CHIRG should reduce the risk of civilian casualties from problematic clients. The new system would theoretically impose some degree of punishment — including potentially delaying or ending weapons transfers — against countries like Saudi Arabia if, for example, Riyadh continues to use U.S. weapons to intentionally target civilians in Yemen.

Nonetheless, the CHIRG does contain potential pitfalls, similar to those found in the Leahy Laws. The Leahy Laws focus on preventing the president from providing U.S. security assistance to military units that have committed a gross violation of human rights. This vetting process often lacks any real bite because there is little guidance as to how to document instances of human rights abuses, vague definitions of what constitutes “civilian harm,” a reporting system that is difficult to use, and a lack of transparency. The CHIRG will likely face similar problems. Moreover, the CHIRG does not currently specify the exact consequences of violations, nor the resources required to undertake such an initiative.

Despite the problems associated with the Leahy Laws, Congress did codify them after more than a decade of yearly reauthorizations. This means that, to end the Leahy Laws, a president would need Congress to pass new legislation — no small feat in a gridlocked legislature.

The lack of codification for the CHIRG means that, at any point, a presidential administration can undo this policy. Absent congressional action to codify the CHIRG, it will likely be undone by a future administration that wants to sell more weapons to risky countries like Saudi Arabia.

Fortunately, Congress can codify this legislation. In fact, recent research shows that Congress has a good opportunity of successfully doing so in the near future. Even the Leahy Laws — named for democratic Senator Patrick Leahy, initially passed under President Bill Clinton, and codified under President Barack Obama — passed with the support of a Republican-controlled Congress. The key was framing the legislation as a way to publicly restrict Clinton’s foreign policy authority following arms transfer scandals in Colombia. The timing is also ripe to codify the CHIRG according to new findings about how lawmakers develop foreign policy, which show that the legislature tends to pass measures to restrict presidential authority abroad during bipartisan congresses.

The CHIRG is a positive step forward for reducing risk in arms sales, but without congressional codification to clarify the ambiguities, it will create only moderate improvements — like the Leahy Laws — until a new president decides to end the policy.