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ISP-I-20-19

Office of Inspections

August 2020

Review of the Department of State’s Role
in Arms Transfers to the Kingdom of Saudi
Arabia and the United Arab Emirates

DOMESTIC OPERATIONS AND SPECIAL REPORTS

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 UNCLASSIFIED

August 10, 2020

TO:

Bureau of Political-Military Affairs – R. Clarke Cooper, Assistant Secretary

FROM:

OIG – Diana R. Shaw, Acting Inspector General

SUBJECT:

OIG’s Review of the Department of State’s Role in Arms Transfers to the Kingdom of Saudi
Arabia and the United Arab Emirates

Prior to completion of OIG’s review of the Department’s Role in Arms Transfers to the Kingdom of Saudi
Arabia and the United Arab Emirates, Inspector General Steve Linick was removed from office and, on May
15, 2020, the President appointed Stephen Akard as Acting Inspector General.1 Acting Inspector General
Akard subsequently recused himself from this matter, delegated full authority to me to make final
decisions pertaining to this review, and played no role in any aspect of the review.
It is for this reason that I write to inform you that OIG has completed its review of the subject matter. The
final unclassified report is attached. You will receive under separate cover OIG’s classified annex to this
report, as well as instructions on OIG’s compliance process for the recommendation contained in the
annex. Consistent with OIG’s statutory obligations,2 OIG will distribute a copy of this report to Congress
and post a redacted version of this report on OIG’s public website within 2 business days.
The Department indicated during its review of OIG’s draft report that certain information contained in the
report and classified annex should be withheld from release to the public and/or Congress on three bases:
(1) Sensitive But Unclassified information, (2) a deliberative process exemption under the Freedom of
Information Act,3 and (3) potential executive privilege concerns. Consistent with OIG’s commitment to
transparency and accountability, OIG worked with the Department in an attempt to maximize the
information to be released. Specifically, prior to finalizing the report, OIG engaged the Department to
understand the nature of the potential claims of executive privilege and to minimize the number of
Department-requested redactions. In a memorandum dated July 27, 2020, the Department asserted that
its requested redactions were necessary to protect executive branch confidentiality interests and, further,
stated its position that the Secretary “has the authority to direct the OIG not to disclose privileged
information, and the Department may do so without any final assertion of executive privilege.”
On August 5, 2020, the Department provided its redactions to OIG’s report. Although the Department
withheld relatively little information in the unclassified portion of the report,4 it withheld significant
information in the classified annex necessary to understand OIG’s finding and recommendation. The
1

Acting Inspector General Stephen Akard resigned from his position effective August 7, 2020.

2

Consistent with the Inspector General Act of 1978 (5 U.S.C.S. app. 3 § 2(3)), OIG is required to keep Congress fully and
currently informed about our work. OIG is also required to publish our reports on our website within 3 days of completion, as
outlined in 5 U.S.C.S. app. 3 § 8M(b)(1)(a).
3

The Department cites the exemption contained in 5 U.S.C. § 552(b)(5).

4

Congress will be provided with an unredacted version of the unclassified portion of the report.
Office of Inspector General   U.S. Department of State   1700 North Moore Street   Arlington, Virginia 22209
www.stateoig.gov

UNCLASSIFIED

 UNCLASSIFIED
Department asserted that the redactions made to the classified annex should be withheld from Congress
because the underlying information implicates “executive branch confidentiality interests, including
executive privilege.” While OIG continues to favor release to the greatest extent possible, the privilege
belongs to the Department and OIG is not in a position to overrule the assertion but must instead rely on
the good faith of the Department. Accordingly, OIG will make available to Congress a version of its
classified annex with the Department’s redactions applied. OIG notes that when the Department initially
explained its position with regard to the assertion of privilege, it stated its willingness to engage in
discussions with Congress to accommodate interest in the underlying information.
cc:
Office of the Legal Adviser

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CONTENTS
SUMMARY OF REVIEW.................................................................................................................... 1
BACKGROUND................................................................................................................................. 2
ARMS TRANSFER PROCESS AND MAY 2019 EMERGENCY CERTIFICATION .................................... 5
EMERGENCY CERTIFICATION PROCESS AND TIMELINE .................................................................. 7
OTHER MATTERS........................................................................................................................... 10
APPENDIX A: OBJECTIVES, SCOPE, AND METHODOLOGY............................................................. 13
APPENDIX B: MANAGEMENT RESPONSE ...................................................................................... 15
APPENDIX C: OIG REPLY TO MANAGEMENT RESPONSE .............................................................. 17
APPENDIX D: REVIEW PROCESS FOR ARMS TRANSFERS .............................................................. 18
APPENDIX E: ARMS TRANSFERS INCLUDED IN MAY 2019 EMERGENCY ...................................... 20
APPENDIX F: PAST USES OF EMERGENCY AUTHORITIES .............................................................. 21
ABBREVIATIONS ............................................................................................................................ 22

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Summary of Review1
In response to congressional requests, OIG reviewed the Department of State's (Department)
role in arms transfers to the Kingdom of Saudi Arabia and the United Arab Emirates following
the Secretary's May 2019 certification that an emergency existed under Section 36 of the
Arms Export Control Act (AECA).2 The Secretary's emergency certification3 waived
congressional review requirements for 22 arms transfer cases to the Kingdom of Saudi
Arabia, the United Arab Emirates, and the Hashemite Kingdom of Jordan,4 with a total value
of approximately $8.1 billion. Congress had previously placed holds5 on 15 of the 22 arms
transfer cases included in the May 2019 emergency certification. At the time the Secretary
certified the emergency, 6 of the 15 cases had been held by Congress for more than a year.
The held cases included at least $3.8 billion in precision-guided munitions (PGMs)6 and
related transfers. In explaining the decision to place the holds, members of Congress cited
concerns about the actions of the Saudi-led Coalition (Coalition)7 in Yemen since 2015,
including high rates of civilian casualties caused by Coalition airstrikes employing U.S.­
supplied PGMs.
For this review, OIG examined the process and timeline associated with the Secretary's May
2019 use of emergency authorities contained in the AECA. OIG also evaluated the
Department's implementation of measures designed to reduce the risk of civilian harm
caused by Saudi-led Coalition military operations in Yemen and analyzed Department
processes for reviewing arms transfers that do not require notification to Congress.8 The
AECA affords the President or Secretary considerable discretion in determining what
1

The Department has applied redactions to certain text in the version of OIG's report that will be made available
to the public. Each redaction is annotated to specify the basis on which the Department requested the information
be withheld.

2

Arms Export Control Act, 22 U.S.C. § 2776 (2018).

3

Federal Register, Vol. 84, No. 142, Arms Sales Notification, July 24, 2019.

4

The emergency certification included a single arms re-transfer case involving Jordan and the United Arab
Emirates. Jordan was not included in the scope of OIG's review because Congress did not consistently place holds
on arms transfers to the country prior to the May 2019 emergency certification.
5

The Department generally will not formally notify an arms transfer if a member of Congress raises significant
concern by placing a hold during the informal notification stage. The Department is not, however, precluded from
approving a transfer if the Department has provided formal notification to Congress and the period of advance
notification specified in the Arms Export Control Act (22 U.S.C. § 2776) has elapsed.
6

The Department of Defense's DOD Dictionary of Military and Associated Terms defines a precision-guided
munition as a guided weapon intended to destroy a point target and minimize collateral damage. This includes air­
and ship-launched missiles, multiple launched rockets, and guided bombs. Precision-guided munitions typically use
the global positioning system, laser guidance, or inertial navigation systems to improve the weapon's accuracy.
7

The Saudi-led Coalition is composed of 11 member states supporting Yemen's internationally recognized
government. Saudi Arabia and the United Arab Emirates are the most active participants. Other members include
Bahrain, Egypt, Jordan, Kuwait, Morocco, Pakistan, Qatar, Somalia, and Sudan.

8

The Department is required by sections 36(b)(l), 36(c)(l), and 36(d)(l) of the Arms Export Control Act (22 U.S.C. §
2776) to notify congressional committees of jurisdiction of its intent to proceed with certain, notifiable transfers.
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constitutes an emergency. Moreover, the AECA does not define the term "emergency."
Accordingly, OIG did not evaluate whether the Iranian malign threats cited in the Secretary's
May 2019 certification and associated memorandum of justification constituted an
emergency, nor did OIG make any assessment of the policy decisions underlying the arms
transfers and the associated emergency.
OIG determined that the Secretary's emergency certification was executed in accordance
with the requirements of the AECA. However, OIG also found that the Department did not
fully assess risks and implement mitigation measures to reduce civilian casualties and legal
concerns associated with the transfer of PGMs included in the May 2019 emergency
certification.9 In addition, OIG found the Department regularly approved arms transfers to
Saudi Arabia and the United Arab Emirates that fell below AECA thresholds that trigger
notification to Congress. These approvals included items such as PGM components on which
Congress had placed holds in cases where the transfers reached the thresholds requiring
congressional notification. However, the AECA does not require the Department to notify
Congress if it approves transactions below those thresholds specified in the law.
OIG issued one recommendation to the Department in a classified annex10 that accompanies
this report.

BACKGROUND
Conflict in Yemen Created Spillover Effects in Gulf Region
Despite a cease fire agreement brokered by the United Nations in December 2018, 11 Yemen's
civil war is in its fifth year and shows few signs of abating. In September 2014, Houthi 12 militant
groups based in northern Yemen defeated government forces and entered Yemen's capital,
Sana'a. Responding to an appeal for international intervention by exiled Yemeni President Abdo
Rabo Mansour Hadi, Saudi Arabia, with the support of other Coalition members, launched a
military offensive in 2015 that was aimed at restoring President Hadi's rule and evicting Houthi
fighters from the capital and other major cities. Figure 1, below, shows Yemen's location
relative to other countries in the Gulf region.
The Department indicated during its review of this report that it disagreed that such actions were required. The
Department's response and OIG' s reply appear in appendices Band C of this report, as well as in the classified
annex to this report.
9

10

OIG, Classified Annex to Review of the Department of State's Role in Arms Transfer to the Kingdom of Saudi
Arabia and the United Arab Emirates (ISP-S-20-19A).
11 Although

the conflict persists, the United Nations brokered a cease fire agreement between Yemen's
internationally recognized government and the Houthis in December 2018 known as the Stockholm Agreement.
12
The Houthi movement, also known as Ansar Allah or Partisans of God, is a predominantly Zaydi Shiite revivalist
political and insurgent movement based in the northern Yemeni governorate of Sa'dah.
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Figure 1: Map of Yemen and Gulf Region

Source: CIA World Factbook. OIG modified the map to label select countries referenced in this report.

Humanitarian Crisis and Coalition Airstrikes Result in Civilian Casualties
The United Nations has characterized the conflict in Yemen as the world’s worst humanitarian
crisis, with more than 24 million people—75 percent of the country’s total population—
requiring humanitarian assistance. Economic collapse in 2018 pushed Yemen to the brink of
widespread famine. According to an estimate produced for the United Nations,13 the conflict
had resulted in 233,000 deaths by the end of 2019. Although the majority of these deaths
resulted from a lack of food, health services, and infrastructure, air strikes by the Coalition have
also produced high rates of civilian casualties, as described below. The United States is the
largest donor of humanitarian assistance to Yemen, providing $764 million in 2019.
The Saudi-led Coalition’s air campaign against the Houthis has attracted international criticism
because of continued high rates of civilian casualties. The United Nations estimates that from
March 2015 to November 2018 there were 17,640 combat-related civilian casualties in Yemen,
including 10,852 caused by Coalition airstrikes. High-profile incidents include a March 2016
strike on a market that killed 97 civilians, an October 2016 attack on a funeral hall that killed
140, and an August 2018 strike on a school bus that killed 51, including 40 children. Open
source reporting stated that the PGMs used in each of these airstrikes may have been
manufactured by U.S. defense firms and would therefore be subject to the Department’s arms
13

Jonathan D. Moyer, et al, Assessing the Impact of War on Development in Yemen, 7 (2019).

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transfer review process, described below. At the time of OIG’s review, Coalition air strikes in
Yemen continued to result in high rates of civilian casualties and damage to civilian sites.14
Iranian Involvement in Yemen Adds to Regional Tensions
Yemen’s civil war is complicated by the involvement of foreign actors, including Iran, which
provides financial, technical, and materiel support to the Houthis. U.S. officials have stated that
Iranian support has exacerbated Yemen’s humanitarian crisis and contributed to broader
instability in the Gulf region. The widespread use of landmines by the Houthis along the
country’s western coast severely limits the international community’s ability to provide
humanitarian assistance inside Yemen. Outside of Yemen, the Houthis have attacked civilian
areas in Saudi Arabia and the United Arab Emirates with ballistic missiles and unmanned aerial
vehicles, resulting in the deaths of more than 500 Saudi civilians. The Houthis have also
attacked international shipping in the Bab-el-Mandeb strait, through which about 5 percent of
global oil shipments pass. On September 14, 2019, an attack on the world’s largest oil
processing facility in Saudi Arabia reduced global oil output by 5 percent. Although the Houthis
claimed responsibility for the attack, the United States and Saudi Arabia publicly blamed Iran.15
United States Seeks to Support Gulf Allies, Counter Terrorist Threats
Although not a member of the Saudi-led Coalition, the United States provides logistical and
intelligence support to the Coalition. The United States is also a major supplier of defense
articles and services16 used by members of the Coalition to execute their military campaign in
Yemen, including PGMs used in airstrikes. Separately, the United States conducts
counterterrorism operations against Al Qaeda and Islamic State affiliates in Yemen.17 The
United States has sought to bolster the ability of Saudi Arabia, the United Arab Emirates, and
other Gulf states to defend themselves against Iranian aggression. Sales of U.S. defense articles
and services are a key aspect of such efforts.

14

For example, on September 23 and 24, 2019, the United Nations reported that Coalition air strikes on a mosque
and a family home killed 22 civilians. In October 2019, Coalition air strikes damaged a United Nations-supported
water system that serves 12,000 people—the fourth time the facility had been hit since 2016.
15

The United Nations Secretariat assessed in June 2020 that the cruise missiles and uncrewed aerial vehicles
and/or parts thereof used in the attack were of Iranian origin. See United Nations, Implementation of Security
Council Resolution 2231 (2015): Ninth Report of the Secretary-General (S/2020/531, June 11, 2020).
16

The Arms Export Control Act requires the President to designate articles and services deemed to be defense
articles and defense services for the purpose of import or export controls. This responsibility has been delegated to
the Secretary of State. Items designated as defense articles and services constitute the U.S. Munitions List and are
specified in 27 C.F.R. § 121.
17

U.S. counterterrorism operations in Yemen are directed against Al Qaeda in the Arabian Peninsula and various
affiliates of the Islamic State. In conducting such operations, the Department of Defense relies on a 2001
authorization to use military force. See Pub. L. No. 107-40.
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ARMS TRANSFER PROCESS AND MAY 2019 EMERGENCY CERTIFICATION
Department Leads U.S. Government Review of Proposed Arms Transfers
The U.S. Government regulates the sale, export, and re-transfer of defense articles and services
to safeguard U.S. national security and advance U.S. foreign policy objectives. Transfers of
defense articles and services are governed by U.S. law, principally the AECA. Decisions to
approve or deny proposed arms transfers are based on criteria outlined in the Conventional
Arms Transfer Policy.18 The Department’s Bureau of Political-Military Affairs leads the U.S.
Government’s review and approval of defense exports, which totaled $192.3 billion in 2018.
The bureau consults with other Department and U.S. Government stakeholders when
evaluating proposed arms transfers.19 Additional information on the review process for
proposed arms transfers is in Appendix D.
The AECA specifies the types and monetary values of arms transfers that require formal
advance notification to Congress and outlines how much advance notice Congress requires.20 In
addition to the formal notification process required by the AECA, the Department has by
longstanding practice submitted a preliminary or informal notification of prospective major
arms transfers in advance of their formal notification to the congressional committees of
jurisdiction. This practice—known as the tiered review process—allows Congress to ask
questions or raise concerns before the Department initiates the formal notification. Under the
tiered review process, the Department generally will not formally notify an arms transfer if a
member of Congress raises significant concerns by placing a hold during the informal review
stage. Although the Department is not precluded from proceeding with an arms transfer
subject to a congressional hold, the Department must still formally notify Congress of the
proposed transfer, consistent with the requirements outlined in the AECA.21

18

White House, National Security Presidential Memorandum Regarding U.S. Conventional Arms Transfer Policy,
April 19, 2018. Beginning with the Carter Administration in 1977, five presidents have issued a conventional arms
transfer policy that provides a framework for reviewing proposed arms transfers within the Executive Branch.
19

Arms transfers include foreign military sales, in which the Department of Defense manages the transfer of
defense equipment purchased by foreign allies and partners, and direct commercial sales, in which the
Department of State provides regulatory approval for commercial sales of defense equipment, services, and
related manufacturing technologies controlled under the U.S. Munitions List.
20

See Sections 36(b), 36(c), and 36(d) of the Arms Export Control Act (22 U.S.C. § 2776). In addition to specifying
thresholds based on the value and type of proposed transfer, the law specifies that the notification occur at least
15 calendar days in advance for proposed transfers to the North Atlantic Treaty Organization (NATO), any member
country of NATO, Japan, Australia, the Republic of Korea, Israel, or New Zealand. For proposed transfers to all
other countries, notification must occur 30 calendar days in advance.
21

As described in more detail in Appendix D, Congress may attempt to block a proposed arms transfer through a
Joint Resolution of Disapproval. In the cases at issue here, the Secretary’s emergency certification waived the
duration of the advance notification requirements contained in the Arms Export Control Act (22 U.S.C. § 2776) and
allowed for the transfers to be immediately licensed or offered to the partner.
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United States Seeks to Minimize Civilian Casualties
As described in the Conventional Arms Transfer Policy, the United States seeks to reduce the
risk that supplying U.S. defense articles and services to foreign allies and partners will harm
civilians. Consistent with the Law of Armed Conflict,22 the current Conventional Arms Transfer
Policy expressly prohibits the Department from approving arms transfers in cases where the
United States has knowledge that the transferred arms will be used to commit attacks
intentionally directed against civilians.23 Current and past Executive orders24 also direct U.S.
officials to engage foreign partners on best practices for reducing the likelihood of and
responding to civilian casualties. The Bureau of Political-Military Affairs leads an interagency
effort to develop a global implementation plan for reducing harm to civilians.
Partly in response to concerns about the high rates of civilian casualties caused by Coalition
airstrikes in Yemen, the U.S. Government provides training to Saudi Arabia on the Law of Armed
Conflict and on best practices for preventing civilian casualties. The United States also supports
Saudi efforts to improve its targeting25 processes and mechanisms for investigating alleged
incidents of civilian casualties. Despite these efforts, the United Nations and non-governmental
organizations continue to express concern about the Coalition’s air campaign, and they also
continue to identify Coalition airstrikes that may be in violation of the Law of Armed Conflict.
Additional information on U.S. efforts to minimize civilian casualties in Yemen is contained in
the classified annex to this report.

22

The Law of Armed Conflict, also known as the Law of War or International Humanitarian Law, is a collection of
international treaties and customary international law which govern the conduct of hostilities and protection of
victims of war (i.e., civilians). It includes the Geneva Convention Treaty, Common Article 3, which prohibits
violence to people taking no active part in the hostilities. Under the Law of Armed Conflict, intentional attacks on
protected objects, such as hospitals or cultural property, are considered war crimes unless those objects have been
converted to a legitimate military target through their use by combatants for the conduct of hostilities.
23

The current administration’s Conventional Arms Transfer Policy, dated April 19, 2018, uses language similar to
that of the former administration’s regarding the prohibition of arms transfers in cases where the United States
has actual knowledge at the time of authorization that the transferred arms will be used to commit attacks
directed against civilians. However, the current administration added the word “intentionally” (i.e., attacks
“intentionally” directed against civilians).
24

Executive Order 13732, United States Policy on Pre- and Post-Strike Measures to Address Civilian Casualties in
U.S. Operations Involving the Use of Force, dated July 1, 2016, was reissued in March 2019 as Executive Order
13862. The new Executive Order is identical to the previous one, with the exception of revoking a reporting
requirement in section 3.
25

Targeting is the process of selecting and prioritizing military targets. The emphasis of targeting is on identifying
enemy targets that, if destroyed or degraded, will contribute to mission success.
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Emergency Certification Used to Proceed With Arms Transfers Subject to
Congressional Holds
On May 23, 2019,26 the Secretary certified that an emergency existed, allowing the delivery of
approximately $8.1 billion in defense articles and services to the Kingdom of Saudi Arabia, the
United Arab Emirates, and the Hashemite Kingdom of Jordan.27 The certification waived
congressional review requirements for 22 arms transfer cases that otherwise met thresholds
under the AECA requiring such review. Appendix E contains a summary of the 22 arms transfer
cases.
Of the 22 arms transfer cases included in the emergency declaration, Congress had previously
placed holds on 15 of the cases during the informal tiered review process, described above. At
the time the Secretary certified the emergency, 6 of the 15 cases had been held by Congress for
more than a year. The held cases included at least $3.8 billion in PGMs and related transfers to
Saudi Arabia and the United Arab Emirates, as described in Appendix E. In justifying the holds,
members of Congress primarily cited concerns about the actions of the Saudi-led Coalition in
Yemen, including high rates of civilian casualties caused by Coalition airstrikes and the
deteriorating humanitarian situation. Although most holds predated the October 2018 killing of
Saudi journalist Jamal Khashoggi by agents of the Saudi Government, members of Congress
cited Khashoggi’s murder as an additional factor in their opposition to the arms transfers.
In making his emergency certification, the Secretary described the threat posed by Iranian
malign activity to the stability of the Middle East and to U.S. national security. The justification
stated that Iran had directed repeated attacks on civilian and military infrastructure in Saudi
Arabia and the United Arab Emirates using Iranian-designed drones and missiles fired by the
Houthis in Yemen.28 Following the Secretary’s certification of the emergency, Congress
attempted to block the transfers by passing three bills, all of which were vetoed by the
President on July 24, 2019. A July 29, 2019, Senate vote failed to override the vetoes.

EMERGENCY CERTIFICATION PROCESS AND TIMELINE
In response to congressional requests, OIG reviewed the process followed by the Department
and the timeline associated with the Secretary’s May 2019 use of emergency authorities
contained in Section 36 of the AECA.29 OIG determined that the emergency certification was
26

The Secretary made a formal determination after close of business on May 23, 2019. The decision was notified
to Congress and announced publicly the following day, on May 24.
27

See 22 U.S.C. § 2776(b)(1), (c)(2), and (d)(2).

28

Although Department personnel first cited Iranian threats as the basis for the proposed emergency certification
in April 2019, Department officials told OIG the Secretary’s formal decision to certify the emergency on May 23,
2019, coincided with increased threat activity related to Iran.
29

22 U.S.C. § 2776.

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executed in accordance with the requirements of the AECA. OIG did not evaluate whether the
Iran ian malign threats cited in t he Secretary's May 2019 certification and associated
memorandu m of justification constituted an "emergency," which is not defined in the AECA,
nor did OIG make any assessment of the policy decisions underlying the arms transfers and the
associated emergency. Figure 2, below, conta ins a timeline of events related t o the May 2019
emergency certification.
Figure 2: Timeline of Events Related to the May 2019 Emergency Certification
(b) (5)

(b) (5)

Secret ary formally
approves paperwork
for emergency

I
April 3

April 23
(b) (5)

May4

May21

May23

Secretary briefs
Congress on
Iranian threats

May24
Certification
tra nsmitted to
Congress

Source: OIG-generated from information obtained from the Department.

Consideration of Emergency Evolved From Early April to Late May 2019
Secretary Requested Options for Proceeding With Arms Transfers
A priority of the President's National Security Strategy30 is to f aci litate exports of U.S. mi litary
equipment. Department officials told OIG they believed the congressiona l review process was
hindering exports of milita ry equipment. As noted above, Congress placed hold s o n arms
transfers to Saudi Arabia and the Un ited Arab Emi rates in response to concerns about the
Coa lition's military operations in Yemen. Department employees told OIG that, alt hough
Congress had permitted some transfers of defensive arms31 to proceed, the October 2018
murder of Jamal Khashoggi resu lted in fu rt her efforts to restrict arms transfers to Sa ud i
Arabia.32 As of late March 2019, 16 arms transfer cases involvi ng Saudi Arabia and the United
Arab Emirates were subject to congressional holds and had not proceeded. 33 OIG found that
Department staff (b) (5)

30

White House, National Security Strategy of the United States of America, December 2017.

31

Such transfers included defense articles and services unlikely to be used in t he confl ict in Yemen. For example,
Congress allowed sales of air and missile defe nse systems to proceed.
32

For example, members of Congress proposed t he Saudi Arabia Accountability and Yemen War Act in February
2019. If passed, t he act would sanction those involved in Jamal Khas hoggi's murder and prohibit the sales of
certain arms to Saudi Arabia.
33

Not all cases subject to congressional holds as of late March 2019 were included in the May 2019 emergency.

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(b) (5)

the Department could proceed with the

proposed arms transfers.
Secretary Instructed Department Staff (b) (5)
OIG found that on May 4, 2019, the Secretary asked (b) (5)
.
Records reviewed by OIG showed that the Secretary’s guidance

(b) (5)

. Although the
potential use of the emergency authorities was closely held within the Department, (b) (5)
in advance of the Secretary’s formal decision.

Emergency Certification Was Properly Executed
OIG determined that the Secretary’s May 2019 use of emergency authorities was executed in
accordance with the requirements of Section 36 of the AECA. Prior to May 2019, three previous
Presidents had used the emergency authorities to facilitate arms transfers.34 In this case, the
Secretary made the certification pursuant to a delegation of authority from the President.35
Additional information on past uses of the AECA emergency authorities is contained in
Appendix F.
In making a determination that an emergency requires the immediate provision of defense
articles and services, the AECA stipulates that the President36 must notify Congress and provide
a certification that includes a detailed justification with a description of the emergency and a
discussion of the national security interests. OIG reviewed documentation pertaining to the
Secretary’s decision, which included a certification, memorandum of justification, and
associated congressional notifications. OIG found that the documentation complied with the
requirements outlined in the AECA.

34

In addition to the three previous uses of the authorities in Section 36 of the Arms Export Control Act, President
George W. Bush exercised a similar authority contained in Section 514 of the Foreign Assistance Act (22 U.S.C. §
2321h) in 2006 to expedite delivery of munitions to Israel during a conflict with Hezbollah.
35

The delegation of authority used by the Secretary to make the May 2019 emergency certification is contained in
Executive Order 13637.
36

The Arms Export Control Act grants the President the authority to exercise the emergency authorities contained
in Section 36. As previously discussed, the Secretary made the May 2019 certification pursuant to a delegation of
authority from the President.
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Most Arms Included in Emergency Certification Not Delivered at the Time of
OIG's Review
Consistent with OIG' s objective to review the process and timeline associated with the May
2019 emergency and related arms transfers, OIG ana lyzed information on the status of each
arms transfer case included in the emergency to determine when foreign partners wou ld take
delivery of the associated defense articles and services. At the time of OIG' s review, foreign
partners had taken full delivery o f - arms transfer cases included in the May 2019
emergency.37 The Department reported issuing all 13 export licenses and approving one arms
re-tra nsfer req uest by June 2019, accounting for all direct commercia l sa les cases included in
the emergency. Additiona lly, as of November 2019, the Department of Defense had issued six
of eight letters of offer and acceptance for foreign milita ry sales included in t he emergency. O f
the six letters of offer and acceptance, on ly th ree had been signed by the foreign government ,
and one had been rejected by the receivi ng government. The rema ining two letters of offer and
acceptance had not yet been issued .
Department staff estimated that U.S. companies would begin delivery of equipment and
materials contained in arms transfer cases prior to the end of 2019. Furthermore,
at t he time of OIG's review, on ly
in foreign military sa les incl uded
38
in the emergency had been implemented. Although not all cases had estab lished delivery
schedu les, the Department estimated t h a t - cases included in the emergency would
not begin delivery until 2020 or later.39 A summary of the status for each of the cases included
in the emergency is contained in Appendix B of the classified annex to this report.

OTHER MATTERS
During OIG's review of the circumstances leading to the May 2019 emergency certification, OIG
identified additiona l information related to the Department's hand ling of arms transfers to
Saudi Arabia and the United Arab Em irates. In response to this information, OIG also evaluated
the Department's implementation of procedures to reduce the risk of civilian harm caused by
Saudi-led Coalition military operations in Yemen and ana lyzed Department processes for
reviewing and approving arms transfers that fa ll below thresholds in the AECA requiring
congressional notification to determine whether the Department followed appl icable laws,

37

(b) (4)

were among t he fi rst items delive red following t he May 2019 emergency

ce rtificat ion.
38

Once a foreign military sales case is approved, t he De partment of Defense issues t he fo reign governme nt a letter
of offer and acceptance . The fore ign government can eithe r accept or reject t he lett er of offer and acceptance. The
case is not considered implemented unt il t he fo reign government accepts t he letter of offer and acceptance and
transfers the agreed funds to the U.S. Government.
39

At least one of the cases included in t he eme rgency involved t he provision of defe nse services through 2025.
Howeve r, delivery of t hose services will begin in 2020.

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regulations, and policies. To accomplish these objectives, OIG interviewed Department staff
involved in the review and approval of proposed arms transfers, reviewed documents outlining
Department procedures for reviewing and approving proposed arms transfers,40 and analyzed
data on arms transfer cases involving Saudi Arabia and the United Arab Emirates that fell below
the AECA congressional notification thresholds.
As described below, OIG found that the Department did not fully assess risks and implement
mitigation measures to reduce civilian casualties and legal concerns associated with the
transfer of PGMs included in the Secretary’s May 2019 emergency certification. OIG also found
that, consistent with the AECA, which does not require the Department to notify Congress
when approving transactions below the thresholds specified in the law, the Department
approved arms transfers to Saudi Arabia and the United Arab Emirates under the AECA
thresholds, some of which were similar to those that had been held by Congress.

Department Did Not Fully Assess Risks and Implement Mitigation Measures to
Reduce Civilian Casualties and Legal Concerns
OIG found the Department did not fully assess risks and implement mitigation measures to
reduce civilian casualties and legal concerns associated with the transfer of PGMs included in
the Secretary’s May 2019 emergency certification. OIG describes this matter in detail and
issued an associated recommendation in the classified annex to this report.

Department Approved Below-Threshold Arms Transfers That Included
Components of Precision-Guided Munitions
OIG reviewed Department records on approved arms transfer cases involving Saudi Arabia and
the United Arab Emirates that fell below the AECA thresholds that trigger notification to
Congress.41 The records show the Department approved a total of 4,221 below-threshold arms
transfers involving Saudi Arabia and the United Arab Emirates, with an estimated total value of
$11.2 billion since January 2017. Components of PGMs were among the below-threshold
transfers to Saudi Arabia and the United Arab Emirates approved during this period. Although
the Department approved below-threshold transfers of PGM components as early as January
2017, the Under Secretary for Arms Control and International Security notified the Secretary in
2018 and 2019 that the Department intended to proceed with additional below-threshold

40

These documents included standard operating procedures for arms transfers maintained by the Bureaus of
Political-Military Affairs and Democracy, Human Rights, and Labor. The Bureau of Near Eastern Affairs is also
consulted in the review of arms transfer cases involving countries within its geographic region.
41

Sections 36(b)(1), 36(c)(1), and 36(d)(1) of the Arms Export Control Act (22 U.S.C. § 2776) specify the types of
arms transfers that must be notified to Congress. For example, transfers to countries other than NATO members,
Japan, Australia, the Republic of Korea, Israel, or New Zealand of major defense equipment in excess of $14 million
and non-major defense equipment in excess of $50 million must be notified to Congress.
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approvals notwithstanding congressional holds on larger, above-threshold transfers of similar
items.

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APPENDIX A: OBJECTIVES, SCOPE, AND METHODOLOGY
This review was conducted from October 22 to December 16, 2019, in accordance with the
Quality Standards for Inspection and Evaluation, as issued in 2012 by the Council of the
Inspectors General on Integrity and Efficiency, and the Inspector’s Handbook, as issued by OIG
for the Department of State (Department) and the U.S. Agency for Global Media (USAGM). Prior
to completion of this report, Inspector General Steve Linick was removed from office. On May
15, 2020, the President appointed Stephen Akard as Acting Inspector General.42 The Acting
Inspector General recused himself from this matter and delegated responsibility for it to Deputy
Inspector General Diana Shaw. Acting Inspector General Akard played no role in any aspect of
this review.
The Office of Inspections provides the Secretary of State, the Chief Executive Officer of USAGM,
and Congress with systematic and independent evaluations of the operations of the
Department and USAGM. Consistent with Section 209 of the Foreign Service Act of 1980, OIG’s
specific objectives for this review were to:
1. Determine the process and timeline related to the Secretary’s May 2019 exercise of
emergency authorities under the Arms Export Control Act.
2. Evaluate the Department’s implementation of established procedures to reduce the risk
of civilian harm caused by Saudi-led Coalition military operations in Yemen.
3. Analyze Department processes for reviewing and approving arms transfers that fall
below thresholds in the Arm Export Control Act requiring congressional notification.
For this review, OIG conducted 46 interviews with Department stakeholders. Beginning in late
2019, OIG also requested to interview the Secretary of State. While efforts to schedule the
interview continued, the Secretary instead submitted a written statement to OIG in February
2020, which cited his travel schedule as his reason for providing a written document. In
addition to delays resulting from efforts to schedule an interview with the Secretary,
finalization of this report was delayed because of COVID-19-related restrictions on OIG staff’s
in-office presence.
OIG also analyzed Department data on arms transfers to Saudi Arabia and the United Arab
Emirates, and reviewed classified and unclassified memoranda, files, and records. Finally, OIG
used professional judgment, along with documentary, testimonial, and analytical evidence
collected or generated, to develop its findings and the recommendation contained in the
classified annex to this report.

42

Acting Inspector General Stephen Akard resigned from his position effective August 7, 2020.

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Jonathon Walz (Team Leader), Arne Baker, Eleanor Nagy, Pauline Nguyen, and Linette Romer
conducted this review. Other report contributors include Veronica Green, Timothy McQuay,
and Rebecca Sawyer.

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APPENDIX B: MANAGEMENT RESPONSE

1lited States Department of tale
Washington, D.C.

20520

5 August 2020

UNCLASSIFIED
TO: OIG - Sandra Lewis, Assistant Inspector General for Inspections (U)
FROM: Political Military Affairs - R. Clarke Cooper (U)
SUBJECT: Response to Draft OIG Report - Review of the Department of State's Role in
Arms Transfers to the Kingdom of Saudi Arabia and the United Arab Emirates (U)

(U) The Department has reviewed the draft OIG inspection report and is grateful for this
opportunity to respond . We agree with the report's principal finding, that the Secretary's May
23, 2019 certification that an emergency which required the immediate sale of certain arms
and services to Saudi Arabia, the United Arab Emirates, and Jordan, was "executed in
accordance with the requirements of the AECA [Arms Export Control Act] ." We would note that
the Certification, which was made at a time of sharply increased tensions in the Middle East
resulting from Iranian aggression and other malign activities, served to deliver key capabilities
to our partners in the region and, even more importantly, sent a message of American resolve
that was heard by partners and adversaries alike, from Riyadh, Abu Dhabi and Jerusa lem to
Tehran, Beijing, and Moscow, and created opportunities that would not otherwise exist.
(U) In the report, OIG notes that "the United States seeks to reduce the risk that supplying U.S.
defense articles and services to foreign allies and partners will harm civilians," and notes the
requirements under the President's Conventional Arms Transfer (CAT) Policy to do so. The
current CAT Policy, approved by President Trump in April 2018, specifically requires us to work
with all recipients of U.S. arms to increase their capability to minimize civilian harm resulting
from the use of such weapons, which we do. As part of these efforts, several bureaus of the
Department of State participate in reviewing requests for the Foreign Military Sales, Direct
Commercial Sales, and Co-Production arrangements under the Arms Export Control Act,
together with partners in the Department of Defense. In addition, the Department is currently
implementing the Advanced Targeting Development Initiative, a global program to assist
partners and allies in this objective. Of note, Saudi Arabia and the United Arab Emirates were
the very first partners to avail themselves of this initiative.

UNCLASSIFIED

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The report also suggests that the majority of materiel authorized for sale in May 2019 had
not been delivered as of January 2020. It is unfortunate that this data has not been updated
prior to provision of this report to the Department in July 2020, but it is worth underscoring
that the most critical deliveries under Direct Commercial Sales cases occurred in the near­
immediate aftermath of the Certification of an Emergency, deliveries of Foreign Military Sales
cases under the Certification continue (including for those cases under which LOAs have been
more recently offered and accepted), and, as described above, the Certification itself was
perhaps the most major 'deliverable.'
(U) In addition to these points, we would like to provide the following comments in response to
the other recommendations and findings provided by the OIG:

(Ul OIG Finding 2: OIG found the Department did not fully assess risks and implement mitigation
measures to reduce civilian casualties and legal concerns. This matter is described in detail in the
classified annex to the report.
(U) Management Response: The Department notes assessing risks and implementing
mitigation measures to reduce civilian casualties and legal concerns related to arms sales is part
of an ongoing interagency process. Moreover, the Department carried out, and continues to
carry out, due diligence on all sales to the standards required by law and by the President's
Conventional Arms Transfer (CAT) Policy. We would note over the past year the Department,
working with the Department of Defense, established and implemented the Advanced Target
Development Initiative (ATDI), a program with the sole purpose to work with partners who
employ U.S.-origin precision guided munitions to assist them in reducing the risk of civilian
casualties. This program was a direct outgrowth of the CAT Policy directive to the interagency
to work with partners to reduce the risk of civilian casualties, and its origins predate the May
2019 Emergency Certification. The Department takes the risk of civilian casualties extremely
seriously, and we will continue to work with partners to mitigate the risk .

(Ul OIG finding 3: In addition, OIG found the Department regularly approved arms transfers to Saudi
Arabia and the United Arab Emirates that fell below AECA thresholds that trigger notification to
Congress. These approvals included items such as PGM components on which Congress had placed
holds in cases where the transfers reached the thresholds requiring congressional notification.
However, the AECA does not require the Department to notify Congress in advance if it approves
transactions below those thresholds specified in the law.
(U) Management Response: The Department agrees with this finding . There is no
practice nor precedent of the Department aligning its export licensing and Foreign
Military Sales authorizations to coincide with any informal, non-binding, Congressional
'holds' that may be emplaced during the Tiered Review process. The Department is
authorized under the Arms Export Control Act to approve licenses and authorize sales
according to the terms of the law, and we do so.

(U) The point of contact for this memorandum is Josh Paul.

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APPENDIX C: OIG REPLY TO MANAGEMENT RESPONSE
In response to the Department’s comments, OIG clarified the finding contained in this report
and the recommendation contained in the classified annex to reflect the specific language used
in Department records. OIG also provided additional information in the classified annex to
support the basis of OIG’s finding.

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APPENDIX D: REVIEW PROCESS FOR ARMS TRANSFERS
There are two primary mechanisms used to transfer U.S. arms to a foreign government: foreign
military sales (FMS) and direct commercial sales (DCS). An FMS case is a government-togovernment purchase agreement, in which the Department of Defense procures defense
articles or services on behalf of a foreign government. In a DCS case, a foreign government and
a U.S. company negotiate directly on the sale of defense equipment, services, or related
manufacturing technologies. Prior to delivering the items to the foreign government, the
company must obtain an export license from the Department. A summary of the review process
for proposed arms transfers is shown in Figure 3, below.
Figure 3: Review Process for Proposed Arms Transfers

Source: OIG-generated from information obtained from the Department.

Prior to approval, the U.S. Government reviews FMS and DCS cases to ensure compliance with
applicable legal and policy requirements.1 The Department shares responsibility for reviewing
FMS and DCS cases with the Department of Defense. Although the Bureau of Political-Military
Affairs has primary responsibility for leading foreign policy reviews of FMS and DCS cases, the
Department’s regional bureaus as well as the Bureau of Democracy, Human Rights, and Labor
and the Bureau of International Security and Nonproliferation participate in policy reviews.

1

For example, the Arms Export Control Act, 22 U.S.C. § 2776, requires the Department to assess the implications of
arms transfers to Middle Eastern countries on Israel’s capacity to address the improved capabilities provided by
such sale or export. In addition, all arms transfers are assessed using the criteria outlined in each administration’s
conventional arms transfer policy.
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The Department must notify Congress in advance of approving FMS or DCS cases that meet
criteria outlined in the Arms Export Control Act (AECA).2 By longstanding practice, the
Department sends preliminary or informal notifications to relevant congressional committees in
advance of the formal notification required by the AECA. This practice—known as the tiered
review process—provides Congress with an opportunity to raise concerns with the Department
in a setting that does not affect the bilateral relationship with the country in question. Again, by
longstanding practice, the Department generally will not proceed with a case that is subject to a
congressional hold. If a proposed FMS or DCS case falls below the thresholds contained in the
AECA, there is no notification requirement.
Once formally notified, Congress can block a proposed arms transfer by passing a Joint
Resolution of Disapproval. If this Joint Resolution of Disapproval is vetoed by the President and
that veto is not overridden, or if Congress does not pass a Joint Resolution of Disapproval in the
first instance, the Executive Branch can proceed with the transfer once the number of days
specified in the AECA has elapsed.3 For FMS cases, the Department of Defense then negotiates
and concludes a letter of offer and acceptance with the foreign government. For DCS cases, the
Department will issue an export license to the U.S. company supplying the defense articles or
services to the foreign government.

2

Sections 36(b)(1), 36(c)(1), and 36(d)(1) of the Arms Export Control Act specify the types and value of arms
transfers that must be notified to Congress in advance.
3

The Secretary’s May 2019 emergency certification waived the statutory congressional notification period
contained in the Arms Export Control Act (22 U.S.C. § 2776) and allowed for the immediate transfer of the defense
articles and services included in the emergency.
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APPENDIX E: ARMS TRANSFERS INCLUDED IN MAY 2019 EMERGENCY
Table: Cases Included in Emergency Certification

Recipient Country
Direct Commercial Sales:
Saudi Arabia
United Arab Emirates

Saudi Arabia
United Arab Emirates

Description

Estimated
Value
($ millions)

Paveway and Enhanced Paveway System
Maverick AGM-65 Weapons System and the
Paveway II, Paveway Ill, Enhanced Paveway II,
and Enhanced Paveway Ill System
Maintenance and Training for F-lSs
Integration of the FMU-152A/B Joint
Programmable Bomb Fuze System
Retransfer of Paveway II Laser Guided Bombs
from the United Arab Emirates to Jordan

Jordan
Saudi Arabia

Aurora Fuzing System for the Paveway IV
Precision Guided Bomb Program
M107Al, .SO Caliber Semi-Automatic Rifles and
Sound Silencers

United Arab Emirates
United Arab Emirates

ScanEagle and Integrator Unmanned Aerial
Systems and Support for Future Intelligence,
Surveillance, and Reconnaissance Requirements

Saudi Arabia
Saudi Arabia
Saudi Arabia

F 110 Engine Maintenance and Repair
120mm M933Al 120mm Mortar Bombs
Ministry of Defense Transformation Project

Saudi Arabia

F/A 18E/F and Derivative Series Aircraft Panels
Fl00-GE-132 Gas Turbine Engines for F-16s
Guidance Enhanced Missiles for the Patriot Air
Defense System

United Arab Emirates
United Arab Emirates
Foreign Military Sales:
United Arab Emirates
United Arab Emirates

One Additional AH-64E Apache Helicopter and
AH-64E Equipment Upgrade
RQ-21A Blackjack UAVs

United Arab Emirates
United Arab Emirates

Javelin Anti-Tank Guided Missiles
Advanced Precision Kills Weapons System

Saudi Arabia
Saudi Arabia
Saudi Arabia
United Arab Emirates

Aircraft Follow On and Support Systems
Tactical Air Surveillance System Support
Aircraft Follow on and Support Services
Training for Presidential Guard

Grand Total

Source: OIG-generated from information obtained from the Department.

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APPENDIX F: PAST USES OF EMERGENCY AUTHORITIES
Table: Summary of Past Uses of Arms Export Control Act Emergency Authorities
Year

Summary

Recipient Nation

1979

North Yemen

President Jimmy Carter certified an emergency
based on an escalation in the conflict between North
and South Yemen.

1984

Saudi Arabia

President Ronald Reagan certified an emergency to
protect global oil supplies and deter hostile action
against Saudi Arabia during the Iran -Iraq War.

1990

Saudi Arabia

President George H.W. Bush certified an emergency
to protect Saudi Arabia from advancing Iraqi forces
following Iraq's invasion of Kuwait.

Source: OIG-generated from inform at ion obtained from the Department.

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ABBREVIATIONS
AECA

Arms Export Control Act

DCS

Direct Commercial Sales

FMS

Foreign Military Sales

NATO

North Atlantic Treaty Organization

PGMs

Precision-Guided Munition

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HELP FIGHT
FRAUD, WASTE, AND ABUSE
1-800-409-9926

www.stateoig.gov/HOTLINE
If you fear reprisal, contact the
OIG Whistleblower Coordinator to learn more about your rights.
WPEAOmbuds@stateoig.gov

Office of Inspector General   U.S. Department of State   1700 North Moore Street   Arlington, Virginia 22209

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