In the Sunday edition of the New York Times, there was a story in which it was alleged that the National Security Council Staff was in much more disarray than is normal even for a new administration.
I want to focus on just one point in that NYT story, though, because it’s a point that may have escaped a lot of readers:
“Two people with direct access to the White House leadership said Mr. Flynn was surprised to learn that the State Department and Congress play a pivotal role in foreign arms sales and technology transfers. So it was a rude discovery that Mr. Trump could not simply order the Pentagon to send more weapons to Saudi Arabia.”
Now, I’m not going to mock Mr. Flynn for not knowing that Congress and the Department of State get to have a say in things involving money, weapons, technology, and foreign countries … although I AM going to point out that just having been in the military for more than thirty years does not actually make you an expert on security and defense policy.
It seems to me that even a basic understanding of how the U.S. government works ought to have tipped Flynn off that Congress might have a role in oversight of the executive branch … especially when it comes to selling weapons to foreign parties. He was a young officer during Iran-Contra; does he not remember how upset Congress was about that?
From what I can tell, what Flynn wants to do is ease the restrictions the Obama administration put in place in 2016 on what kinds of munitions the U.S. would supply to Saudi Arabia (and perhaps the UAE). It appears that the Obama administration was observing a 2009 law that limited the sale of cluster munitions to those with a failure rate of below 1%, and indicated that the administration ought not to sell if the munitions were being used where civilians were known to be present. While the Obama administration actually lobbied *against* a bill that would have banned *all* sales of cluster munitions to Saudi Arabia, it did want to avoid violating the 2009 law (by selling the munitions to Saudi Arabia while we knew their targeting was not up to our requirements), and appears to have had a policy in place to that effect. It also blocked a sale of precision munitions as late as December of 2016, arguing that precision munitions are no better than “dumb” bombs if you’re picking bad targets.
It’s not clear to me exactly what restrictions are purely policy and what is based on law, and I have no privileged access to the Pentagon discussions right now, but here is what I think may be going on:
The Saudis certainly believed that Trump would be more willing than Obama was to sell them all the munitions they wanted, and the new administration, hawkish on anything even smelling of Iran and wanting to demonstrate its counter-terror bona fides to the American public, wants to sell the Saudis anything they want. The companies that make these munitions also want to sell them. There has been bipartisan Congressional interest in keeping an eye on these sales, as Democrats tend to be concerned about the civilian casualties caused by the lax Saudi targeting practices, and some Republicans are cautious about supporting the Saudi government.
Flynn may be trying to get the DoD to go ahead with sales and transfers that were delayed or stopped last year. He may be running into problems here, partly because Secretary Mattis may have his own ideas about how the U.S. ought or ought not to be involved in the Yemen war, and partly because, if Flynn tries to go around Mattis, he may find that Pentagon bureaucrats don’t like taking orders from people outside their chain of command. While Flynn is the NSA, and thus can be presumed to represent the president’s preferences, he still has no authority to order anyone in the Pentagon to do anything.
If the Obama administration’s caution on the sale of cluster bombs was based on a concern that doing so would be violating a law, then it’s very possible that the new administration will face pushback from within the Department of Defense.
This is pure speculation, and I have no inside information on what people in the Pentagon are saying about this, but I remember working in a Pentagon under an activist NSA and NSC staff, and while we were always alert to what the president seemed to want, we considered it our jobs to educate the NSA and NSC staff when they were asking for things that we couldn’t do. In my case, we would often get requests that we couldn’t fulfill simply because of time constraints and the requirements of Congressional notification periods (“no, sorry, we can’t get sharks with lasers for the King of Kookaburra by this weekend; there’s a 15-day Congressional notification period on that”). In this case, the employees of the Department of Defense may find themselves in the awkward position of trying to explain that the administration is asking them to do something they think is really illegal. If that is the case, the most appropriate thing to do is take it to the relevant Congressional committees (HASC, SASC, HAC-D, SAC-D, HFAC, and SFRC) and ask them how they feel about it. If they say it’s okay, then it’s okay. If they say no … then we shall see how this administration deals with yet another branch of government that they don’t directly control.