Public Contract Law Journal

JCPOA: Implications & Effects on Our Foreign Military Sales Program

by Ariel Bachar

Ariel Bachar ( is a 2017 graduate of the George Washington University Law School and a member of the Public Contract Law Journal.

I.  Introduction

Despite its small size, Israel withstands the variety of threats it faces in the volatile Middle East region. Since the creation of the Jewish state in 1948, Israel has been involved with a near constant number of wars, armed conflicts, and skirmishes with its Arab enemies.1 Today, Israel faces threats from those enemies as well as from members of its own population who oppose the existence of a Jewish state.2 To combat these threats, Israel often looks for help from the United States — generally considered Israel’s strongest ally.3

Some argue Israel might not exist in its current form if not for its long- standing relationship with the United States.4 Since World War II, Israel is “the largest cumulative recipient of U.S. foreign assistance,” — the majority being military aid.5 The origins of the majority of Israel’s military equipment traces back to the U.S. Foreign Military Sales (FMS) program.6 Under the FMS program, Israel can obtain U.S. military equipment as long as it uses  the goods, among other ends, for “legitimate self-defense” purposes.7

The two nations maintained a strong bilateral relationship for decades, with the United States providing Israel with over $127.4 billion of assistance to date.8 The United States recently made plans to appropriate a record $38 billion in foreign assistance to Israel over the next decade.9

However, current political events revealed problems caused by the United States’ relationship with Israel. The United States’ recent agreement with Iran, called the Joint Comprehensive Plan of Action (JCPOA), permits Iran to pursue a nuclear program limited to “peaceful” purposes.10 Israel, considered “one of the most vocal opponents of the [JCPOA],” remains apprehensive over Iran’s newfound nuclear capabilities.11

In the past, Israeli officials considered strikes against the Iranian nuclear program to neutralize a perceived threat to Israel’s existence.12 Although most Israeli analysts believe that JCPOA takes a deliberate attack on Iran’s nuclear facilities off the table, future military conflict remains a possibility.13An Israeli attack on Iran could involve U.S. equipment or technology, given the large amount Israel acquires through the FMS program.14 The United States might then be faced with determining: (1) whether the attack violates the conditions of the FMS program; and (2) if so, whether to suspend or terminate Israel’s participation in the program.15

A restriction on Israel’s participation in the FMS program may contradict current legislation committing the United States to annually provide Israel with aid, thus helping Israel to maintain a qualitative military edge in the Middle East.16 Additionally, it might negatively impact the U.S. defense industry, costing defense contractors one of their largest consumers and creating long-term profit loss.17 Conversely, failing to take action against Israel for its potential questionable conduct can lead to both public scrutiny and litigation against the U.S. government and defense contractors.

To correct these issues, the United States should amend the Arms Export Control Act (AECA). The amendments proposed in this Note create a clear framework to punish foreign purchasers for their acts of aggression using U.S. goods. The increased transparency would allow defense contractors   to more easily assess potential AECA violations, helping to determine their desired future course of conduct. Additionally, modifying the target of AECA sanctions might reduce the inadvertent harms of the Act on U.S. companies for the transgressions of other foreign nations.

Part I of this Note provides a description and background of the United States – Israel and Iran – Israel relationships, including their origins, the reasoning behind them, and the current statuses resulting from JCPOA. Part II outlines JCPOA and examines the problems it brings to light, specifically with legislation that guides our defense trade with Israel. Part III suggests solutions to those problems, concluding that the United States should amend certain provisions of the AECA to increase transparency and balance.


II.  Background

A.   Growth of U.S. – Israeli Relationship

The strong relationship between the United States and Israel “is hardly a recent phenomenon.”18 World War II catalyzed this relationship.19

Following the conclusion of the war, the United Kingdom terminated its responsibility over the area formerly known as Palestine and turned it over to the United Nations (U.N.).20 On November 29, 1947, the U.N. partitioned Palestine into an Arab state and a Jewish state, giving both Jews and Arabs sovereignty over their own territory.21 Less than six months later, Israel declared its independence.22 President Harry Truman recognized Israel within minutes of its declaration, making the United States the first nation to recognize the new Jewish state.23 The United States supported Israel in part “to help settle the large number of Jewish refugees, displaced persons, and survivors of the Nazi holocaust.”24

From the time of its recognition of Israel, the United States committed to Israel’s security in some form. Primarily, the United States supports Israel by helping Israel create and maintain a superior military force in the Middle East.25 The United States provides aid for a variety of reasons based not only on Israel’s value as a strategic asset but also on the shared religious   and ideological values.26 Rather than explore every reason in depth, this Note will focus on the strategic reasoning behind U.S. assistance to Israel, which some call the most significant factor behind the relationship.27

The Cold War heightened the United States’ strategic interest in Israel.28 During the war, the United States hoped to foster the growth of democracy and thus, contain the Soviet Union’s expansion into the Middle East.29 To accomplish these goals, the United States needed to build political ties and military power within the region by expending large amounts of resources.30 Without an Arab ally in the Middle East with the same political and military clout as Israel, the United States had no alternative but to support Israel.31 As a result, the United States diverted its resources into raising Israel’s military and economic power in order to block Soviet expansion.32

Following the Soviet Union’s collapse, the United States’ strategic interests in Israel changed and expanded. Today, these interests include promoting democracy and economic development in the Middle East, preventing violent leadership regimes and terrorist organizations in the Middle East, containing the expansion of radical Islamism, and inhibiting the spread of nuclear weapons.33

B.  Current Arrangement

Currently, the United States’ commitment to Israel includes providing military assistance to help maintain Israel’s “Qualitative Military Edge” (QME) in the Middle East.34 David Ben-Gurion, the first prime minister of Israel, established the basic idea of this defense doctrine in 1953.35 Ben Gurion recognized that because of its small size and limited resources, Israel “is and will continue to be quantitatively inferior” to its Arab neighbors.36 In order to overcome this disadvantage, Ben-Gurion believed Israel needed to develop a qualitative edge through possessing better training and equipment than its numerically superior enemies.37 As such, Israel continuously attempts to obtain “superior weaponry, tactics, training, leadership, and other factors of military effectiveness.”38

The United States did not support Israel’s pursuit of a QME until after the 1973 Yom Kippur war.39 In the aftermath of the war, the United States determined its strategic interests in the region would best advance through Israel and thus quadrupled foreign aid to the Jewish State.40 However, the two countries originally shared a largely informal arrangement.41 The United States acknowledged its commitment to Israel’s QME through public statements and selling it defense equipment.42 Additionally, the United States often “downgrad[ed] the capability of weapons systems it sold to Arab states or upgrad[ed] versions sold to Israel.”43 For example, on several occasions in which the United States concluded a major political or military deal with a Middle Eastern nation, it mitigated the effects of the deal by selling the Israelis “ ‘balancing’ weapons packages.”44

As previously mentioned, current legislation formalizes the United States’ support of Israel’s pursuit of a QME in the Middle East.45 The Naval Vessel Transfer Act (NVTA) of 2008 additionally defines QME as the “ability to counter and defeat any credible conventional military threat . . . through the use of superior military means . . . including weapons, . . . intelligence, surveillance, and reconnaissance capabilities that . . . are superior . . . to those of such other individual or possible coalition of states or non-state actors.”46 In 2012, Congress followed up the NVTA by passing the US-Israel Enhanced Security Cooperation Act.47 This act formally states the U.S. policy of “help[ing] . . . Israel preserve its qualitative military edge amid rapid and uncertain regional political transformation.”48 Accordingly, the United States committed itself to helping Israel maintain its QME in the Middle East, both formally and informally, and ensuring the sale of defense articles to other countries does not adversely affect the QME.49 The United States primarily meets its commitment by providing Israel with monetary grants and loans, which helps Israel purchase U.S. defense equipment and services.50 

Important to defense contractors, the United States requires Israel to buy U.S. weaponry in order to receive such aid.51 Israel also pays a reduced rate for such weaponry and defense equipment “due to its designation as a major non-NATO ally.”52 This arrangement provides defense contractors with a lucrative and consistent foreign market for military equipment and technology.53 U.S. companies rely heavily on export sales because they increase consumer bases and profits — enabling these companies to hire more workers, pay higher wages, and improve equipment and technology.54

A subjective analysis determines what Israel needs to maintain its QME,  and no set formula exists to determine the precise amount of aid the United States must provide.55 The NVTA tasks the President with making continuous QME assessments and determining the amount of aid necessary.56 Accordingly, as long as Israel, “and more specifically, the U.S. President, can produce evidence [of] need,” the United States may grant its requests.57 Israel relies on the uninterrupted flow of aid from this loose, yet consistent, arrangement in order to achieve certain advantages over its Arab neighbors.58

C.  How the Arrangement Works

1.  Basics of the Arms Export Control Act

The United States provides Israel with a large amount of military assistance in order to maintain its QME.59 In addition to providing a large volume of equipment, the United States sells Israel the most sophisticated weaponry in its arsenal.60 For example, the United States recently “approved a $1.9 billion dollar arms sale to Israel . . . includ[ing] 3,000 Hellfire missiles, 250 AIM-120C Advanced Medium Range Air-to-Air Missiles, and 50 BLU- 113 ‘bunker-buster’ bombs.”61 The United States conducts such transactions in accordance with its FMS program, which some consider to be a crucial part of international affairs.62

The AECA authorizes the FMS program.63 It permits the United States government, through the Department of Defense (DoD), to act as a direct seller of defense articles and services to eligible foreign governments.64 Sales through the program build relationships with foreign countries, benefitting the United States.65 Additionally, sales increase the technological capabilities of foreign nations, helping the United States achieve certain foreign policy objectives.66

FMS transactions are made on a case-by-case basis in accordance with both foreign policy and national security objectives.67 Approved participants wishing to purchase defense articles or services must file a letter of request (LOR) with the DoD.68 Then, the letter becomes subject to various levels  of review, including whether: (1) ”the prospective purchaser is eligible to make a purchase under the FMS program,” (2) the proposed sale is in the United States’ national interest, (3) the sale will meet a valid military requirement, and (4) whether the sale will adversely impact the resources of the U.S. forces.69 After the foreign purchaser signs the agreement and satisfies its financial obligations, the DoD takes the necessary actions required to fulfill the agreement.70 This typically requires the DoD to enter into contracts with private contractors to obtain the goods or services.71 Typical procurement statutes and regulations, specifically the FAR, DFARS, and the CICA, govern these procurements.72

The AECA also permits foreign customers to obtain defense articles and services from U.S. companies directly, rather than through the DoD.73 For example, Israel purchased over $18 million dollars’ worth of “guided missile systems, complete” from the Boeing Company and over $6 million dollars’ worth of “guns, over 30 MM up to 75 MM,” from General Dynamics in fiscal year 2011.74 These types of transactions are known as direct commercial sales (DCS).75

Typically, in a DCS transaction, the foreign purchaser deals directly with the industry as the two sides negotiate the majority of the contract elements without the involvement of the U.S. government.76 These transactions can be more advantageous than FMS transactions because they are not subject to the same stringent procurement procedures, such as the FAR.77 The FMS process requires the development, review, and acceptance of a letter of offer and acceptance as well as a government-to-government agreement concerning the terms, conditions, and obligations of the transaction.78 Meanwhile, a DCS transaction only requires the foreign nation and private company negotiate the contract.79 The U.S. government subsequently approves the DCS sale — with congressional approval required for items worth over $14 million dollars.80

Regardless of whether a foreign country chooses to acquire U.S. defense equipment through FMS or DCS, the AECA contains provisions regarding their usage.81 Section four of the AECA states that “[d]efense articles and defense services shall be sold or leased . . . to friendly countries solely for internal security, [or] for legitimate self-defense.”82 Should a foreign nation violate this provision, the United States must restrict its participation in the FMS program.83 Through section four, the United States aims to deter countries from using weapons for reasons other than defensive or peacekeeping purposes.84

Additionally, if a foreign nation arguably commits a “substantial violation” of the AECA, section 3(c)(2) requires the President to promptly report the violation to Congress.85 If either Congress or the President determines a substantial violation occurred, the foreign nation “becomes ineligible for further U.S. military sales under the AECA.”86 However, the AECA allows the President to veto a congressional decision by “certifying in writing to Congress that termination of such sales and deliveries would have a significant adverse impact on United States security.”87 Should no veto occur, the United States must terminate cash sales and deliveries to the purchaser.88 For example, following Argentina’s 1982 occupation of the Falkland Islands using U.S.-supplied military equipment, Assistant Secretary of State Powell A. Moore suspended “until further notice” all deliveries of defense articles and services to Argentina.89 Moore reported to Congress that the President determined Argentina “may” have committed a substantial violation of the AECA.90

Misuse of U.S. defense equipment not only creates consequences for foreign nations but for U.S. defense contractors as well. In the event of foreign purchasers misusing U.S. produced equipment, people harmed by this misuse could bring the contractors to court. 91 For example, the parents of Ra chel Corrie and four Palestinian families brought Illinois company Caterpillar, Inc. into the U.S. District Court for the Western District of Washington over its sale of equipment to Israel.92 During Israel’s operations in the Gaza Strip, the Israeli military crushed Corrie to death using a Caterpillar bulldozer93 while she attempted to stop the demolition of a Palestinian family’s home.94 The lawsuit alleged Caterpillar was liable for providing Israel with military equipment with the knowledge Israel would use the equipment for purposes other than “legitimate self-defense.”95 The plaintiff claimed that Caterpillar provided the Israeli military with bulldozers since 1967, despite knowing the military would use bulldozers to demolish homes in the Palestinian territories.96

Although the court dismissed the lawsuit on the basis of the political question doctrine, the case created a trickle-down effect for Caterpillar.97 Caterpillar shareholders called for the corporation to stop selling bulldozers to the Israeli military.98 This internal pressure coincided with public backlash, leading Caterpillar to suspend the delivery of bulldozers, valued at a total of $50 million, to the Israeli military.99 The Caterpillar suit caused lawyers, as well as the public, to question corporate dealings with Israel, particularly where they potentially involve international law violations.100

In 2014, following Israeli military operations in the Gaza Strip, Boeing became the target of a nationwide campaign “demanding cessation of weapons sales to Israel.”101 The Israeli operations in the Gaza Strip resulted in the deaths of over 2,200 Palestinians, the majority of whom were civilians.102 Many of the civilians died from Boeing equipment — including the Hellfire missile, AH-64 Apache helicopter, and laser guided smart bombs.103 Protests occurred outside a Boeing stockholders meeting in Chicago that year, and several members brought a resolution before the stockholders demanding transparency and a comprehensive report and risk analysis of Boeing’s weapons sales to Israel.104

Both examples show how the foreign misuse of military equipment can bring negative consequences, including lawsuits, negative publicity, and internal organizational pressure. These can cause certain companies, such as Caterpillar and Boeing, to reconsider selling military equipment to foreign nations directly or through the FMS program.105

2.   Arms Export Control Act Enforcement

Previously, the United States overlooked potential Israeli violations of the AECA. For example, in 2002, Israel used U.S.-provided F-16s to destroy an apartment building in Gaza City, killing seventeen Palestinian civilians.106 However, the United States did not punish Israel for this incident.107 Even when the United States found Israel responsible for some sort of wrongdoing, it never invoked the AECA to terminate military aid to the Jewish state.108

Instead, the United States elected to temporarily suspend Israel’s FMS involvement.109 For example, in 1981, Israel conducted a successful air strike using U.S. planes on an Iraqi nuclear reactor in response to Saddam Hussein’s attempt to develop nuclear weapons.110 The Israelis managed to destroy Iraq’s nuclear reactor before it became functional.111 In response, the United States chose to suspend, rather than cancel, the delivery of arms previously contracted for sale to Israel.112 This response left the door open for Israel to conduct similar operations in the future without the fear of serious consequences.113

Additionally, the United States has never found Israel or any other country in “substantial violation” of the AECA, which would potentially result from a “substantial violation” requiring the United States to completely terminate the sale of arms and services to the wrongdoer.114 Complete termination becomes a costly scenario because these kinds of major export-sanctions cause U.S. companies to suffer long-term profit loss.115 If the United States completely terminated its current relationship with Israel, the U.S. defense industry would face a yearly loss of over $2 billion dollars.116 As one scholar noted, the U.S. military industry is “accustomed to billions of dollars in sales to Israel.”117

Even after the United States eventually lifts the “substantial violation” sanctions it places on a foreign nation, the damage on U.S. businesses would already have been done.118 Businesses would face costly fights to get their goods back into the defense market.119 Without competing with the United States, foreign companies gain the ability to take control of certain markets, thereby presenting a barrier for prospective re-entrants.120

Additionally, the United States’ hesitation to make substantial violation determinations may arise from fear of retaliation because many countries see arms sales as a prerequisite for U.S. access to military bases abroad.121  In 1975, the United States implemented an arms embargo on Turkey after it used U.S. weapons during an invasion of Cyprus.122 In response to the embargo, Turkey closed 27 U.S. military installations.123

Turkey’s actions severely hurt U.S. intelligence capabilities because the United States could no longer monitor Soviet communications from the Soviet Armenia, the Black Sea, and the Eastern Mediterranean.124 Additionally, Turkey repudiated a defense agreement with the United States, choosing to instead acquire its military equipment from the Soviet Union.125 These types of retributive actions are costly to U.S. interests and may cause the United States to err on the side of caution when faced with a potential AECA violation.126

D.  Times Have Changed

1.   Israel–Iran Conflict

Israel and Iran were strong allies until the 1979 Iranian Revolution, when the National Republic, led by Grand Ayatollah Khomeini, replaced the Iranian monarchy.127 The new regime “immediately severed diplomatic ties with Israel, turning over the Israeli Embassy to the Palestine Liberation Organization.”128 Today, the two nations remain hostile enemies.129 Iran views Israel as a regional competitor that wants to undermine its revolutionary system, while Israel believes Iran poses grave strategic and ideological challenges.130

Iran’s support of anti-Israeli terrorist groups, such as Hezbollah, contributes to the uncertain relationship.131 Israel previously accused the Lebanese group of being a “front-line operational arm of Iran against Israel.”132 During Israel’s recent skirmishes with Hezbollah, it “tracked large Iranian arms shipments [made] to Hezbollah via Syria.”133 The U.S. State Department also called Iran “the most active state sponsor of terrorism,” stating it provided “Hezbollah and Palestinian terrorist groups — notably HAMAS, the Palestinian Islamic Jihad, the al-Aqsa Martyrs’ Brigade, and the Popular Front for the Liberation of Palestine-General Command — with  funding, safe haven, training and weapons.”134

Additionally, Israel’s concerns over Iran’s pursuit of nuclear weapons135 led to increased efforts building up its enrichment capabilities, which can be used to produce highly enriched uranium for a nuclear weapon.136 Israeli leaders worry that should Iran ever possess nuclear weapons, it might be more emboldened to take hostile action toward Israel or increasingly carry out destabilizing activities.137 The Israeli public also shares these fears. “In one poll, 27 percent of Israelis said they would consider leaving the country if [Iran] developed nuclear capabilities.”138 The rhetoric of Iranian leadership in recent years — denying the existence of the Holocaust, stressing Israel’s illegitimacy as a Jewish state, and threatening Israel’s disappearance —  likely engrained itself in the minds of Israelis.139

Also, Iran recently conducted tests of ballistic missiles designed “to be able to hit [their] enemy the Zionist regime from a safe distance.”140 It is widely thought that Iran’s missile program serves as a “delivery system for nuclear warheads.”141 Reportedly, Iran stamped the missiles with the following words in Hebrew: “Israel should be wiped from the pages of history.”142 Iran conducted similar ballistic missile tests a year later in potential violation of both JCPOA and an U.N. Security Council Resolution.143 In response to international criticism following the tests, Iran’s foreign minister, Mohammad Javad Zarif, simply stated Iran “has the right to defend itself.”144

2.  Joint Comprehensive Plan of Action

Israel’s fears surrounding the Iranian nuclear program increased in 2015 when Iran entered into a historic agreement, called JCPOA, with China, France, Germany, Russia, the United Kingdom, and the United States.145 JCPOA permits Iran to pursue a nuclear program for exclusively peaceful purposes.146 According to the Obama administration, JCPOA blocks every possible pathway Iran could use to build a nuclear bomb while ensuring Iran’s nuclear program will remain peaceful through a comprehensive over- sight and inspection process.147 The agreement not only benefits Iran with the freedom to pursue a nuclear program without fear of international repercussion, but it also lifts all current economic sanctions levied against Iran related to the country’s nuclear program from every country involved in the pact.148

Israel negatively reacted to JCPOA due to its concerns over the ability of the agreement to hinder Iran’s pursuit of obtaining nuclear weapons.149 Israeli Prime Minister Benjamin Netanyahu called JCPOA a “historic mistake” that could create a “terrorist nuclear superpower.”150 Netanyahu specifically criticized how “Iranian ballistic missiles were not a part of the deal; restrictions would expire at most in a decade; . . . Iran would be allowed to use the advanced centrifuges in a decade; and . . . Iran’s nuclear infrastructure [would be allowed] ‘to remain largely intact.’ ”151

Additionally, Israel expressed concerns that lifting economic sanctions against Iran might allow “the Islamic Republic [to] upgrade its aged military hardware.”152 According to an American Enterprise Institute military analyst, Iran will have an estimated $100 billion in revenue previously frozen   by sanctions.153 This newfound revenue could “make possible an Iranian military shopping spree that will be near-impossible for Israel to keep up with.”154 Additionally, Iran could use the revenue to increase its support of Israeli enemies, such as Hezbollah.155

JCPOA could have a larger negative impact than U.S. legislators and policy makers anticipated.156 Initially, the United States may attempt to calm Israeli fears by giving a substantial foreign aid package.157 The United States’ commitment to Israel’s “qualitative edge” historically meant it would not undermine Israel’s strength by transferring technology and weapons to its enemies, and if it did, would compensate Israel accordingly.158 For example, after Israel withdrew from Sinai and transferred the area to Egypt in 1982, Egypt received $1.8 billion from the United States in FMS and Israel received $3.2 billion.159 Accordingly, if Israel can produce evidence of the need for military aid due to Iran’s increased revenue and nuclear capabilities, the United States may meet those requests in order to lessen Israel’s apprehension.160

Israel’s heightened concerns due to JCPOA also increases the possibility it will strike or attack Iran using U.S. equipment and technology.161 Regardless of how much aid the United States provides Israel, “it will still never be enough to safeguard against [an Iranian] nuclear attack.”162 In the past, Israel has been wary of its regional rivals’ pursuit of nuclear capabilities because nuclear weapons pose a mortal threat to the Jewish state.163 Israel has shown a willingness to address threats by “us[ing] force to protect nationals abroad, tak[ing] anticipatory self-defense, and respond[ing] to terrorism as part of self-defense.”164 In 1985, Israel carried out an attack against the Palestine Liberation Organization (PLO) headquarters in Tunisia using U.S.-supplied aircrafts.165 Israel also shows a willingness to use force to specifically address nuclear threats. As previously mentioned, in 1981, Israel attacked an Iraqi nuclear reactor using U.S.-made F-15 and F-16 planes.166 In addition, Israel carried out an airstrike against a Syrian facility in 2007, which it identified as a nuclear reactor.167

III.  Contradictions

In the event Israel attacks Iran, the United States will experience pressure   to determine whether to suspend Israel’s participation in the FMS pro- gram.168 U.S. citizens and interest groups pressure Congress to ensure the United States conditions military assistance to Israel on its “compliance with applicable U.S. laws and policies.”169 For example, amid Israel’s invasion of the Gaza Strip in 2009, Congressman Dennis Kucinich sent a letter    to the Bush administration requesting an examination of its compliance with  the provisions of the AECA.170 Additionally, media growth enables U.S. citizens to receive constant “coverage of international conflicts, inducing strong emotional reactions and public demand for a U.S. response.”171

However, the current framework renders an AECA assessment difficult. First, a preemptive Israeli strike raises the question of whether the action falls within the scope of the AECA’s “legitimate self-defense” provision. Un- fortunately, the AECA’s drafters did not define this language.172 As a result, the President, or Congress, must determine the definition when evaluating a potential AECA violation.173 This decision remains subjective because not even international law scholars agree on a uniform interpretation of the concept of legitimate self-defense.174

The lack of a clear definition invites legal dispute as to whether a foreign country violated the AECA’s restrictions on the use of defense articles or services.175 For example, following Israel’s invasion of Lebanon, in order to “combat international terrorism” in May 1978, the National Association of Arab Americans (NAAA) filed suit in U.S. District Court.176 The NAAA sought to enjoin the U.S. government from selling arms to Israel, claiming that Israel became ineligible for aid when it used U.S.-supplied arms for purposes other than legitimate self-defense.177 The NAAA also sought to compel the United States to publicly rule on whether Israel violated the AECA and to subsequently impose an arms embargo.178

Although the NAAA eventually withdrew its suit because Israel withdrew from Lebanon, similar litigation could occur in the future in the event of an Israeli attack.179 In 1981, the NAAA threatened to revive its former suit in response to Israel’s attack on the Osirak nuclear reactor.180

Additionally, the United States must consider potential retaliation in the event it finds a country in violation of the AECA.181 Sanctions and similar punishments cause deep resentment among allies.182 As previously mentioned, after Turkey used U.S. arms to invade Cyprus and restore its former government, the United States imposed an arms embargo against Turkey.183 In response, Turkey turned its business toward the United States’ biggest rival, choosing to purchase defense articles from the Soviet Union.184 Additionally, Turkey cut off U.S. access to its military installations in the region, severely affecting U.S. intelligence capabilities.185 As this example illustrates, restricting a foreign purchaser’s participation in the FMS program comes at too high a cost because it can divert business away from the United States and contribute to the deterioration of foreign relations.

Specifically, restricting Israel’s participation in the FMS program hurts U.S. interests and contradicts legislation. While the FMS program conditions the sale of defense articles on good behavior, the Naval Vessel Transfer Act binds the United States to provide Israel with a continuous flow of military aid and technology without regard to its actions.186 In terms of U.S. interests, enforcing the provisions of the AECA might cause a substantial reduction in revenue for both the defense industry and the U.S. government — revenue that both are accustomed to.187

Alternatively, failing to enforce the AECA in favor of QME legislation preserves the status quo, creating issues for the U.S. defense contracting industry. Defense contractors already receive criticism for perpetuating arms races and selling to countries with questionable human rights records.188 By selling defense equipment to foreign nations committing arguable violations of the AECA, U.S. companies risk facing public scrutiny or litigation from those seeking compliance with the law.189 Irrespective of their justiciability, the negative publicity from these lawsuits force contractors to reconsider DCS sales or sales to the DoD.190 Without addressing them, these issues could eventually leave the FMS program in disarray.

Repealing QME legislation is not a viable option for the United States because it would significantly reduce the abundance of aid that the United States provides Israel. Israel relies on such financial and military aid to maintain its strategic advantage in the Middle East. A large reduction could have devastating consequences, thereby costing the United States its stronghold in the region.191 Enemies of Israel might engage in hostilities with the Jewish State, knowing its weakened alliance with the United States.192

IV.  Possible Solutions

The United States could reform the FMS program by amending various provisions of the AECA. The proposed amendments in this section will increase transparency, improve the likelihood of enforcement, and reduce the participation risks for U.S. defense contractors. The discussion in Part III of this Note already highlighted some of the AECA’s problems. The ambiguity of AECA’s “legitimate self-defense” provision and “substantial violation” provision give the United States too much leeway when assessing potential violations.193 Additionally, AECA imposes the drastic mandatory termination punishment for a “substantial violation.” It imposes large costs on the United States by eliminating foreign trade partners and invites retaliation from affected countries.194 Finally, the AECA’s export-control sanctions for violations impose a large financial burden on U.S. defense contractors and punish them for the transgressions of others.

A.  Clarify Legitimate Self-Defense

The United States could attempt to clarify the AECA’s “legitimate self- defense” provision. In instances of aggressive conduct by a foreign nation, such as an invasion in response to terrorism, the United States and the foreign nation involved may offer differing opinions on whether the action constitutes a necessary defensive measure.195 Additionally, the United States might not have access to the same information or intelligence as the nation carrying out the operation — potentially leading to the United States determining the justifiability of the actions based on different information.196

Although a precise definition of legitimate self-defense remains too difficult to uniformly apply, the United States could draft guidelines that help indicate what conduct falls outside of its scope. Clear guidelines might help the U.S. administration more easily assess whether goods potentially violated the AECA. Additionally, increased transparency and public knowledge of what conduct constitutes an AECA violation could pressure the United States into consistently implementing the law and punishing aggressors.

Clarifying the legitimate self-defense provision might also create better protection for defense contractors against public scrutiny. Rather than wait and rely on a governmental decision on a potential AECA violation, contractors might be able to assess AECA violations themselves and thus choose to terminate sales to the perpetrator on their own accord.

B.  Amend “Substantial Violation” Provision

The United States could also choose to clarify the AECA’s “substantial violation” provision. Not only does the vague term give the United States   too much discretion, but the lack of clarity also results in an absence of any substantial violation determination over the years. The United States overlooked instances in which foreign governments committed egregious acts, including the killing of innocent civilians.197 As a result of the United States’ consistent failure to restrict access to the FMS program, the AECA does not adequately deter foreign nations from aggressive conduct. Additionally, U.S. companies can choose to continue selling to the foreign nation involved without the fear of certain punishment.

The benefits previously discussed regarding a clarification of the “legitimate self-defense” provision similarly apply here. A more transparent definition of “substantial violation” would allow for easier AECA assessment. Additionally, it would allow the public to clearly tell if a substantial violation occurred — giving it an increased watchdog ability over the U.S. government. The United States might have little choice but to apply the law justly with the additional public oversight, no matter the ally or allies involved. Finally, U.S. contractors would no longer exist in limbo on this issue. They would have no legal choice but to comply with the AECA and terminate sales to the violating nation.

C.  Modify Mandatory Termination

The United States could also choose to modify the punishment for a “substantial violation” of the AECA, shifting away from a mandatory embargo. The mandatory embargo — a rigid punishment — can lead to foreign retaliation and the loss of lucrative business relationships. Therefore, it is unlikely that the United States will ever find that a substantial violation occurred.198 However, by simply eliminating the mandatory embargo, the United States would lose an important deterrent against aggressive acts and violations of international law.199

Thus, the United States could choose to modify the punishment from a mandatory embargo to a temporary suspension.200 The limited duration of a temporary suspension might minimize economic damage to U.S. interests because the United States would only temporarily lose out on important relationships. Additionally, it might lessen the likelihood of foreign retaliation.201 Foreign nations may not seek retaliation against the United States knowing that they do not face an indefinite or lengthy ban from acquiring U.S. equipment.202

B.    Shift Toward Import-Control Sanctions

Finally, the United States could shift away from the export-control sanctions that dominate the AECA and instead impose more import-control sanctions. By restricting foreign nations’ abilities to purchase U.S. defense equipment, export sanctions currently impose high costs on U.S. businesses.203 As one legislator stated, “[h]urting American jobs because of what India did doesn’t make sense.”204 Export sanctions reduce company revenue because of lost sales and forfeited business opportunities.205 Additionally, they result in the loss of U.S. jobs.206

In contrast, import control sanctions generally result in fewer lost sales in the United States.207 These sanctions limit the number of goods and services the United States and its citizens can purchase from the target state.208 Thus, instead of imposing large financial costs on the U.S. industry and its workers, these sanctions instead place the financial burden on the target state.209

Besides shifting the costs from U.S. companies to the target state, importcontrol sanctions might also increasingly deter the misuse of defense equipment, which is the main goal of the AECA.210 These sanctions force the target state to attempt to locate adequate alternative markets for its standard goods — a more costly and difficult practice than locating a substitute weapons supplier.211 The increased costs and risks resulting from import-control sanctions make it more likely foreign nations will comply with the terms of the FMS program.212

V.  Conclusion

JCPOA indirectly brings to light the ineffectiveness of certain aspects of the U.S. FMS program, specifically certain provisions of the AECA. The AECA’s ambiguous language gives the United States too much discretion when forced to determine whether a violation occurred. This results in inconsistent rulings with the U.S. administration considering factors such as the status and relationship with the offending nation.

The inconsistencies, as well as specific AECA sanctions, create uncertainties for private defense contractors and impose too high of a cost on governmental and private interests. The United States needs to address these statutory weaknesses and amend the AECA before a potential Israeli attack thrusts some of these issues into the spotlight.

  1. See generally Ray Sanchez, Israel and Its Neighbors: Decades of War, CNN, [] (last updated Aug. 13, 2016).
  2. See generally Hassan Jabareen, Why Palestinians Can’t Recognize a ‘Jewish State’, HAARETZ (Sept. 2, 2011, 2:22 AM), [].
  3. See generally Strong Allies, AIPAC, israel/strong-allies [].
  4. See generally Peres: We Cannot Exist Without the United States, JERUSALEM POST (Oct. 22, 2010), [].
  8. SHARP, supra note 5.
  9. See Oren Dorell, U.S. $38B Military Aid Package to Israel Sends a Message, USA TODAY (Sept. 14, 2016, 1:42 PM), [].
  10. See Joint Comprehensive Plan of Action, China–Fr.–Ger.–Iran–Russ.–U.K.–U.S., July 14, 2015, at 2 [hereinafter Iran Nuclear Deal].
  12. See generally Ben Brumfield & Oren Liebermann, Leaked Audio: Israeli Leaders Drew Up Plans to Attack Iranian Military, CNN (Aug. 22, 2015), []; Barak Ravid, Barak: Steinitz, Ya’alon Thwarted Iran Strike in 2011, HAARETZ (Aug. 23, 2015, 1:52 AM), [].
  13. See KAYE, supra note 11, at 11–12 (“[A] military conflict between Iran and Israel . . . is less likely to be the result of a deliberate Israeli attack on Iran’s nuclear facilities than from an unintended escalation between Israel and Iran in southern Syria.”).
  14. Frida Berrigan, Made in the U.S.A.: American Military Aid to Israel, J. PALESTINE STUD., Spring 2009, at 6, 9.
  15. See generally GRIMMETT, supra note 7.
  16. See generally Naval Vessel Transfer Act of 2008, Pub. L. No. 110-429, 122 Stat. 4842 (codified in scattered sections of 22 U.S.C.).
  17. See generally Shawn L. Twing, A Comprehensive Guide to U.S. Aid to Israel, WASH. REP. ON MIDDLE EAST AFF. (April 1996), []; see also Sarah P. Schuette, Note, U.S. Economic Sanctions Regarding the Proliferation of Nuclear Weapons: A Call for Reform of the Arms Export Control Act Sanctions, 35 CORNELL INT’L L.J. 231, 253 (2001).
  18. U.S.-Israel Relations: Roots of the U.S.-Israel Relationship, JEWISH VIRTUAL LIBR., [].
  20. Id. at 3.
  21. UN Partition Plan—Resolution 181 (1947), ISR. MINISTRY FOREIGN AFF., [].
  22. REICH, supra note 19, at 4.
  24. Id. at 1.
  25. See EL-KHAWAS & ABED-RABBO, supra note 6, at 27.
  26. See Marissa L. Marandola, Note, More Money, More Problems: A Look at the Implications of the Naval Vessel Transfer Act of 2008, Pub. L. No. 110-429, § 201, 122 Stat. 4842 (2008) on U.S.-Israeli Relations, 38 SUFFOLK TRANSNAT’L L. REV. 93, 100–01 (2015).
  27. See id.
  28. See id. at 103.
  29. See POWERS, supra note 5, at 34.
  31. See id.
  32. See id.
  33. See Marandola, supra note 26, at 101.
  34. See Naval Vessel Transfer Act of 2008, Pub. L. No. 110-429, § 201, 122 Stat. 4842, 4843.
  36. See id.
  37. See id., at 1; see also SHARP, supra note 5, at 1.
  38. WUNDERLE & BRIERE, supra note 35, at 1.
  39. See Result of the Yom Kippur War of 1973, PALESTINE FACTS, [].
  40. Matthew Dorf, Remembering Yom Kippur War: Decision to Resupply Israeli Forces Forever Changed U.S. Mideast Policy, JEWISH TELEGRAPHIC AGENCY (Sept. 20, 1998, 9:00 AM), [].
  41. See generally Marandola, supra note 26, at 118–19.
  42. See id.
  43. WUNDERLE & BRIERE, supra note 35, at 6.
  44. See id.
  45. See generally Naval Vessel Transfer Act of 2008, Pub. L. No. 110-429, § 201, 122 Stat. 4842, 4843.
  46. Id.
  47. Julian Pecquet, Congress May Re-examine Special Arms Deals with Israel, AL-MONITOR (Feb. 5, 2015), [].
  48. Id.
  49. See Marandola, supra note 26, at 119.
  50. See id. at 118.
  51. AHARON KLIEMAN & REUVEN PEDATZUR, REARMING ISRAEL: DEFENSE PROCUREMENT THROUGH THE 1990S 67 (1992); Roger Zakheim et al., Private-Sector Opportunities—and Challenges—in the New $38.8 billion U.S.-Israel Military Assistance Package (Nov. 28, 2016), [] (“Israel will spend more funding, as much as $1.2 billion per year, on the advanced military capabilities that only the U.S. can provide.”).
  52. RHONDA L. CALLAWAY & ELIZABETH G. MATTHEWS, STRATEGIC US FOREIGN ASSISTANCE 51 (2008) (internal quotation marks omitted).
  53. See Shawn L. Twing, Israeli Defense Contract Illustrates How U.S. Aid Harms American Industries, WASH. REP. ON MIDDLE EAST AFF. (Oct. 1996), [] (noting U.S. defense contractors often bid on lucrative defense contracts); see also Mark Mazzetti & Helene Cooper, Sale of U.S. Arms Fuels the Wars of Arab States, N.Y. TIMES (Apr. 18, 2015), [] (“As the Middle East descends into proxy wars, sectarian conflicts and battles against terrorist networks, countries in the region that have stockpiled American military hardware are now actually using it and wanting more. The result is a boom for American defense contractors looking for foreign business in an era of shrinking Pentagon budgets. . . .”).
  54. See Schuette, supra note 17, at 252; Exporting Is Good for Your Bottom Line, INT’L TRADE ADMIN., [].
  55. Marandola, supra note 26, at 127.
  56. Id. at 119.
  57. Id. at 126–27.
  58. See id. at 107.
  59. See REICH, supra note 19, at 154.
  60. See Stephen Snyder, A Massive USWeapons Deal with Israel Means MoreWeapons for Its Arab Neighbors, Too, PUB. RADIO INT’L (Sept. 22, 2016, 11:00 AM), [] (“The difference between what Israel can get and what other countries in the region can get . . . from the United States is that Israel always can choose . . . the most advanced type of arms that the US has to offer.”).
  61. Calev Ben-David, U.S. in $1.9 Billion Arms Sale to Israel Amid Iran Deal Concerns, BLOOMBERG (May 21, 2015, 7:36 AM), [].
  64. See id. § 1.1 n.2.
  66. See id. at 2–3 (referencing the United States’ use of FMS to “build the capabilities of foreign partners to participate in counter-terrorist operations, and in operations in Afghanistan and Iraq”).
  68. See PERFILIO, supra note 63, § 3:2.
  69. See id.
  70. Id. § 3.3.
  71. Id.
  72. Id.
  73. See Harvey G. Sherzer & Donna Lee Yesner, Export Controls Over Direct Commercial Sales of Military and Strategic Goods and Technologies: Who’s in Charge?, 7 B.C. INT’L & COMP. L. REV. 303, 304 (1984).
  76. Id. at 20.
  77. See THE MANAGEMENT OF SECURITY COOPERATION, supra note 67, at 15-4 (“U.S. industry has no structured, regulatory guidance, such as the [FAR], that must be followed as is the situation in FMS.”).
  78. See id. at 15-3.
  79. See id.
  80. MOORE ET AL., supra note 62, at 22.
  81. See GRIMMETT, supra note 7.
  82. 22 U.S.C. § 2754 (2012).
  84. See Karen M. Hayworth, Note, The Arms Export Control Act: Proposals to Improve Observance of American Arms Law, 12 N.Y.U. J. INT’L L. & POL. 135, 137 (1979–1980).
  85. GRIMMETT, supra note 7.
  86. Id.
  87. Berrigan, supra note 14, at 11 (internal quotation marks omitted).
  88. GRIMMETT, supra note 7.
  89. Id. at 5.
  90. Id.
  91. See e.g. Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007).
  92. Id.
  93. Id.
  94. See id.
  95. See id. at 979.
  96. Id. at 977.
  97. Id. at 984.
  98. Emily Schaeffer & Garrett Wright, Corrie v. Caterpillar: The Struggle for Justice Continues, ELEC. INTIFADA (Mar. 16, 2006), [].
  99. See Yanira Farray, Caterpillar Withholding Sale of D9 Death Bulldozers to Human Rights Violator, VETERANS TODAY (Oct. 30, 2010), [].
  100. Grietje Baars, Corrie et al v. Caterpillar: Litigating Corporate Complicity in Israeli Violations of International Law in the U.S. Courts, 11 Y.B. ISLAMIC & MIDDLE EASTERN L. 97, 132 (2004).
  101. Bill Chambers, Boeing Faces Increased Opposition on Weapons Sales to Israel, CHI. MONITOR (May 3, 2016), [].
  102. Id.
  103. See id.
  104. See id.
  105. See generally Baars, supra note 100, at 132.
  106. MOORE ET AL., supra note 62, at 36.
  107. See id. at 36–37.
  108. See GRIMMETT, supra note 7, at CRS-6.
  109. See Berrigan, supra note 14, at 11.
  110. See Jules Lobel, Preventive War and the Lessons of History, 68 U. PITT. L. REV. 307, 321 (2006).
  111. Id.
  112. See id.
  113. See The Use of United States Supplied Military Equipment in Lebanon: Hearing Before the Subcomm. on Int’l Sec. & Sci. Affairs & on Eur. & the Middle E. of the H. Comm. on Foreign Affairs, 97th Cong. 66 (1982).
  114. See GRIMMETT, supra note 7, at CRS-1.
  115. See Schuette, supra note 17, at 253; Michael McAuliff, Iran Sanctions Cost the U.S. Billions: Study, HUFFINGTON POST ( July 14, 2014, 6:00 PM), [].
  116. MOORE ET AL., supra note 62, at 36–37; Berrigan, supra note 14, at 18.
  117. Berrigan, supra note 14, at 18.
  118. See generally GEOFF SIMONS, IMPOSING ECONOMIC SANCTIONS: LEGAL REMEDY OR GENOCIDAL TOOL? 123 (1999); Schuette, supra note 17, at 253.
  119. See Schuette, supra note 17, at 253.
  120. See id.
  121. See SIMONS, supra note 119, at 123; See generally William George Wentz, The United States Is Moving Further From Fostering Multilateral Restraint of Conventional Arms Sales, 6 DICK. J. INT’L L. 343, 366 (1988).
  122. See Hayworth, supra note 84, at 150, 152.
  123. Id. at 153.
  124. Id.
  125. Id.
  126. See SIMONS, supra note 119, at 123.
  127. See Steven Simon, Iran and Israel, IRAN PRIMER, [].
  128. Id.
  130. Id.
  131. See id. at 17.
  132. S. Samuel C. Rajiv, Deep Disquiet: Israel and the Iran Nuclear Deal, 3 CONTEMP. REV. MIDDLE E. 47, 48 (2016).
  133. Simon, supra note 128.
  135. See KAYE ET AL., supra note 129, at 27.
  136. See Iran, NTI, [] (last updated Mar. 2017).
  137. See KAYE ET AL., supra note 129, at 27.
  138. Yoaz Hendel, Iran’s Nukes and Israel’s Dilemma, MIDDLE E. Q., Winter 2012, at 31, 33.
  139. See KAYE ET AL., supra note 130, at 17.
  140. Sam Wilkin & Bozorgmehr Sharafedin, U.S. Mulls Response After Iran Test- Fires Missiles ‘Designed to Hit Zionist Regime’, HAARETZ (Mar. 9, 2016, 5:31 PM), [].
  141. Peter Kenyon, Did Iran’s Ballistic Missile Test Violate A U.N. Resolution?, NPR (Feb. 3, 2017, 12:27 PM), [].
  142. Wilkin & Sharafedin, supra note 141.
  143. Kenyon, supra note 142.
  144. Id.
  145. See Joint Comprehensive Plan of Action, supra note 10, at 2.
  146. See id.
  147. See id.
  148. See id.
  149. See Michael R. Gordon & David E. Sanger, Deal Reached on Iran Nuclear Program; Limits on Fuel Would Lessen with Time, N.Y. TIMES (July 14, 2015), [].
  150. Id.
  151. Rajiv, supra note 133, at 55.
  152. See Nicole Gaouette and Tony Capaccio, U.S. Offers Billions in Arms to Ease Mideast’s Iran Anxiety, BLOOMBERG ( July 9, 2015, 12:00 AM), [].
  153. See id.
  154. Id.
  155. See geneally id.
  156. For example, JCPOA may require the U.S. to send larger amounts of money to Israel, or it may increase Israeli apprehension and therefore the likelihood of preventative hostilities with Iran.
  157. See Marandola, supra note 26, at 131–32.
  159. See EL-KHAWAS & ABED-RABBO, supra note 6, at 167.
  160. See Marandola, supra note 26, at 126–27.
  161. See EL-KHAWAS & ABED-RABBO, supra note 6, at 64 (noting Israel has a propensity for striking at will against near and far Arab targets).
  162. Marandola, supra note 26, at 132.
  163. See id.
  165. See id. at 161.
  166. See id. at 133; David K. Shipler, Prime Minister Begin Defends Raid on Iraqi Nuclear Reactor; Pledges to Thwart a New ‘Holocaust’, N.Y. TIMES ( June 10, 1981), [].
  168. See SHARP, supra note 5, at 23.
  169. Id.
  170. Berrigan, supra note 14, at 16.
  171. Schuette, supra note 17, at 237.
  172. GRIMMETT, supra note 7, at CRS-3.
  173. See id.
  174. See id. See generally ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 205 (1963); Yehuda Z. Blum, State Response to Acts of Terrorism, 19 GERMAN Y.B. INT’L L. 223 (1976).
  175. See Hayworth, supra note 84, at 138–39, 147.
  176. Id. at 138, 147–48.
  177. See id. at 135.
  178. See id.
  179. See An Arab-American Group Said Tuesday It Will Revive a . . . , UPI ( June 9, 1981), [].
  180. See id.
  181. See Hayworth, supra note 84, at 153.
  182. See SIMONS, supra note 119, at 123.
  183. See Hayworth, supra note 84, at 150, 153.
  184. Id. at 153.
  185. Id.
  186. See Marandola, supra note 26, at 121–22.
  187. See William D. Hartung & Frida Berrigan, U.S. Arms Transfers and Security Assistance to Israel, WORLD POL’Y INST. (May 6, 2002), [] (“Israel is one of the United States’ largest arms importers. In the last decade, the United States has sold Israel $7.2 billion in weaponry and military equipment, $762 million through Direct Commercial Sales (DCS).”).
  188. See generally Lerna K. Yanik, Guns and Human Rights: Major Powers, Global Arms Transfers, and Human Rights Violations, 28 HUM. RTS. Q. 357, 357 (2006) (noting there have been countless instances of arms transfers to countries with problematic human rights records, many of which have been cited in the reports of various advocacy groups).
  189. See, e.g., Corrie v. Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007).
  190. See, e.g., Saed Bannoura, Caterpillar Corporation Stops Shipment of Armored Bulldozers to Israeli Military, INT’L MIDDLE E. MEDIA CTR. (Oct. 30, 2010, 12:55 PM), [].
  191. See SIMONS, supra note 119, at 119; Marandola, supra note 26, at 134.
  192. See SIMONS, supra note 119, at 119.
  193. See Hayworth, supra note 84, at 156, 158.
  194. See id. at 157–58.
  195. See id. at 156 (noting a sovereign nation must make its own determination whether selfdefense is both justified and necessary).
  196. Id.
  197. See Reem Salahi, Israel’s War Crimes: A First Hand Account of Israel’s Attacks on Palestinian Civilians and Civilian Infrastructure, 36 RUTGERS L. REC. 201, 201–02 (2009) (detailing Israel’s ‘Operation Cast Lead’ into Gaza, whereby 1,417 Palestinians were killed).
  198. See Hayworth, supra note 84, at 158 (noting the repercussions of an embargo).
  199. See id. at 158.
  200. Id.
  201. See id.
  202. See id.
  203. See Richard N. Haaas, Economic Sanctions: Too Much of a Bad Thing, BROOKINGS INST. ( June 1, 1998), [].
  204. India-Pakistan Nuclear Proliferation: Hearing Before the Subcomm. on Asia & the Pac. of the H. Comm. on Int’l Relations, 105th Cong. 27 (1998) (statement of Donald A. Manzullo, Member, H. Comm. on Int’l Relations).
  205. See Haaas, supra note 204.
  206. Id.
  208. Schuette, supra note 17, at 254.
  209. See CARTER, supra note 208, at 235.
  210. See Schuette, supra note 17, at 254–55.
  211. See id.
  212. See id.