A senior Democratic senator has blocked a Trump administration proposed rule to switch oversight authority of firearm sales abroad from the State Department to the Commerce Department, arguing the move would significantly weaken congressional oversight and increase the risk of terrorists and criminals getting their hands on powerful military-grade weapons.
Sen. Robert Menendez, ranking member on the Foreign Relations Committee, placed the hold last week after he was notified earlier this month about the proposed change by the State Department. Menendez is objecting to the final language of the rule.
“Firearms and ammunition — especially those derived from military models … are uniquely dangerous,” the New Jersey Democrat wrote in a Feb. 22 letter to Secretary of State Mike Pompeo announcing his hold. “They should be subject to more, not less, rigorous export controls and oversight.”
Hill staffers and outside experts are concerned President Donald Trump will disregard Menendez’s hold, which is not legally binding but is based on decades of bipartisan tradition. The development of the rule change started under the Obama administration, and the Trump administration is now proposing it.
The proposed rule change would switch oversight responsibility on exports of firearms, including semi-automatic pistols, sniper rifles and AK-47-type assault weapons from Foggy Bottom to the Commerce Department. Critics of the move say that human rights, terrorism and rule of law concerns would take a back seat when considering an export request. It would also, they say, make it more difficult for lawmakers to learn about and stop firearm sales they disagree with.
Menendez has halted — for now — the regulatory change process, which would otherwise next move to a formal congressional notification period before the rule change would go into effect. The final rule has not been shared but an earlier version was published in May 2018 in the Federal Register.
Supporters of the rule argue it will bring more efficiency to the firearm export control process and make it easier to investigate potential export violations as Commerce has more resources to commit to the matter than the State Department.
“At the time, I liked the fact that Commerce has 105 special agents whose sole purpose is to investigate and enforce export control violations,” Kevin Wolf, a former assistant secretary of Commerce for export administration in the Obama administration, said in an interview. “That was actually part of my motive for supporting this, because of the added enforcement resources that would be provided to this. Commerce is better able to deal with non-military customers.”
Wolf, now a partner with the law firm Akin Gump, said the Obama administration developed but never put forth the rule change because it occurred so close to the 2012 gun massacre at Sandy Hook Elementary School, and the political climate for it never improved. But the core motive of the rule change, which was part of a broader regulatory overhaul of defense industry exports, “was for State to do what it did best and for Commerce to do what it did best,” he said.
Also at issue is whether the State Department and other government agencies like the Pentagon will be able to block Commerce from approving an export request if the other agencies determine it is not in U.S. foreign policy or national security interests.
“They will send possible license exports over to State for comment but they will be the ones making the final decision,” said a congressional aide, referring to the Commerce Department. “One of the reasons for doing this is fundamentally for export promotion, to make it easier to traffic in these arms abroad.” The staffer opposes the rule change and is not authorized to be quoted.
But Wolf insisted that under the proposed rule, “Commerce must get consensus from the other agencies and any one agency can object.”
If there is interagency disagreement about a proposed gun sale, the matter would be brought up the chain to higher agency officials, but how disputes ultimately would be settled is still unclear.
“I’m an Obama appointee and I’m a gun-control Democrat,” Wolf said. “I am also just an export control person, who wanted a more efficient regulatory system to more properly [monitor] these dangerous items.”
Congress in the Dark
But rule opponents and supporters agree that Congress would be left in the dark on the majority of firearm exports.
Under the Arms Export Control Act, the State Department is required to notify Congress about any proposed exports of lethal weapons worth $1 million or more that fall under the United States Munitions List.
But the rule change would take firearms off the Munitions List and place them on the Commerce Control List, where they would be subject to much less congressional oversight including the pre-sale notification requirements contained in the export control law.
Furthermore, the Commerce Department is not required to notify Congress, as the State Department is, when there is evidence that U.S. defense exports have been misused, according to a July 2018 report by the liberal Center for International Policy. The Center objects to the proposed rule change.
In the past, lawmakers have used the notification period provided by the export control law to stop the proposed sale of guns to a number of problematic foreign governments that the State Department would otherwise have approved. In 2016 and 2017, lawmakers blocked separate Foggy Bottom proposals to export assault rifles and semi-automatic handguns to security services in the Philippines and Turkey due to human rights and rule of law concerns.
Without that final backstop of congressional notification, human rights advocates argue that even the State Department will be more likely to give the go-ahead to exporting military-grade weapons to buyers who could use them against civilians.
“It’s definitely the most dramatic reduction in export control since the creation of the Arms Export Control Act,” said Colby Goodman, an independent arms control analyst, who co-authored the Center for International Policy report. In the past few years, he said, “we know that Congress has played a pretty important role in reviewing arms control and human rights cases.”
Among other things, Goodman’s report recommends the rule change not go forward until Congress’ internal watchdog, the Government Accountability Office, has completed an analysis on the risks of moving firearms from State’s Munitions List to the Commerce Control List.
For his part, Menendez has said he will not lift his hold until his concerns are addressed about how congressional oversight over foreign firearms sales will be maintained.
Menendez is also demanding Commerce make a final legal determination on whether 3D-printed firearms, which are difficult for metal detectors to uncover, constitute an “emerging” technology. Such a determination would make it illegal for someone in America to upload to the Internet the blueprints for a 3D-printable firearm. The State Department until recently barred the posting online of 3D-printed gun designs, though a lawsuit has thrown the matter to the courts.
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