By Jeff Abramson
President Joe Biden is taking advantage of rarely used legal authorities to expedite mass shipments of new US weapons and other assistance to Ukraine while continuing to delay the release of a new policy that broadly defines the purpose arms transfers.
In terms of helping to defend Ukraine against Russian aggression, the most symbolic decision so far has been Congress’s decision to pass legislation modeled on the Lend-Lease Act of World War II, which allowed the Roosevelt administration to quickly supply arms to American allies and transform the course of this conflict.
The Ukrainian Democracy Defense Lend-Lease Act of 2022 was passed by the Senate unanimously on April 6 and the House by an overwhelming 417-10 vote on April 28. In a speech touting the legislation that day, House Speaker Nancy Pelosi (D-Calif.) stressed the importance of “relinquishing time-consuming demands on the president’s power to send critical defensive resources to Ukraine.”
Biden waited until May 9 to sign the bill into law, providing a symbolic counterpoint to Russia’s Victory Day celebrations. “Every day Ukrainians are paying with their lives,” Biden said at the signing ceremony. “[T]The cost of fighting is not cheap, but giving in to aggression is even more costly.
Although lend-lease authorities already exist, they are rarely used. The new law removes a number of hurdles that plague Ukraine or other Eastern European countries affected by Russia’s war, including a ban on loans or leases longer than five years . Exactly how the president might use the new authority is unclear.
Meanwhile, on April 24, US officials said there was an urgent need to supply $165 million worth of ammunition to Ukraine under the Foreign Military Sales program. It was Biden’s first use of a rarely invoked authority under the Arms Export Controls Act that allows the executive branch to circumvent mandatory congressional review periods before sales can be completed. of weapons.
Unlike in 2019, when both houses of Congress passed resolutions to try to prevent President Donald Trump from using such authority for emergency arms transfers to Saudi Arabia and the United Arab Emirates, Biden encountered no significant opposition to its declaration of emergency. Trump had to veto the resolutions, which Congress was unable to overturn at the end of July 2019. (See LAWSeptember 2019.)
On the same day the House approved the lend-lease legislation, the Biden administration asked Congress for an additional $33 billion for Ukraine and European security through September, saying the $3.5 billion dollars from the existing authority to reduce US equities was nearly exhausted. (See LAWMay 2022.) The April 28 request included $5 billion in additional drawdown authority, $6 billion for the Ukraine Security Assistance Initiative, and $4 billion for the Military Funding Program foreigner from the State Department.
On May 10, the House added to the demand by passing an even larger $40 billion emergency package in a 368-57 vote. In a press release, House Appropriations Committee Chair Rosa DeLauro (D-Conn.), who sponsored the bill, said, “Given the magnitude of the campaign of terror waged against the Ukrainian people and Ukrainian democracy, we are morally obligated to ensure that Ukraine has the security and economic assistance they need. The Senate passed the 86-11 legislation on May 19, and Biden signed it on May 21.
The law places very few barriers to the administration’s use of the funds, an issue that prompted Sen. Rand Paul (R-Ky.) to block an effort to advance the bill by unanimous consent on 12 may. He proposed including language requiring the appointment of a special inspector general to oversee the funds. That could have forced the bill back into the House despite presidential calls for quick action.
The law requires the Inspector General of the Department of Defense to provide a funds report within 120 days, a report on end-use monitoring efforts within 45 days, and an unclassified report every 30 days detailing defense articles and services supplied to Ukraine.
While accelerating arms shipments to Ukraine, the Biden administration continues to delay actions that would more broadly clarify its view of the role of U.S. arms transfers. Specifically, the administration hasn’t used the moment to finally release its new conventional arms transfer policy, despite telling congressional offices at least as long ago as July 2021 that a presidential policy that would do more to promote human rights was forthcoming.
At an event hosted by the Arms Trade Forum on April 20, Mira K. Resnick, Deputy Assistant Secretary of State for Regional Security, reiterated that the revised Arms Transfer Policy is “intended to to revitalize American leadership in democracy and human rights. But she didn’t say when the document would be finalized.
Civil society advocates expressed frustration with the delay in releasing the policy, which they attributed to the administration’s preoccupation first with the collapse of the Afghan government in 2021 and now with the war in Ukraine. For many of these proponents, legacy policy from the Trump administration places too much emphasis on the commercial value of arms transfers. (See LAWJanuary/February 2021.)
The current policy was not discussed publicly at recent Arms Trade Treaty (ATT) preparatory meetings in late April. At the ATT’s annual conference of states parties last August, US officials said the policy would be “finalized and released shortly” and would be used to consider “the appropriate relationship of the United States” with the treaty. (See LAWOctober 2021.)
Despite expectations that this administration would, it took no action to honor the 2013 U.S. signing of the treaty, which Trump rejected in 2019. (See LAW, May 2019.) The vast majority of countries supplying arms to Ukraine are members of the treaty. Today, there are 111 states parties to the treaty, including all NATO countries except Turkey and the United States.