Values in Arms Export Act of 2020

II 116TH CONGRESS 2D SESSION S. 4739 To amend the Arms Export Control Act to provide for better monitoring and verification of the use of defense articles and defense services by countries of concern, and for other purposes. IN THE SENATE OF THE UNITED STATES SEPTEMBER 29, 2020 Mrs. MURRAY introduced the following bill; which was read twice and referred to the Committee on Foreign Relations A BILL To amend the Arms Export Control Act to provide for better monitoring and verification of the use of defense articles and defense services by countries of concern, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Values in Arms Export 4 Act of 2020’’. 5 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4739 IS SEC. 2. MONITORING AND VERIFICATION OF USE OF DE- 1 FENSE ARTICLES AND DEFENSE SERVICES. 2 Chapter 3A of the Arms Export Control Act (22 3 U.S.C. 2785) is amended— 4 (1) by redesignating the second section des- 5 ignated section 40A as section 40B; and 6 (2) by inserting after section 40B, as so redes- 7 ignated, the following new section: 8 ‘‘SEC. 40C. MONITORING AND VERIFICATION OF USE OF DE- 9 FENSE ARTICLES AND DEFENSE SERVICES. 10 ‘‘(a) PRINCIPLES.— 11 ‘‘(1) STATEMENT OF POLICY.—It is the policy 12 of the United States that a country’s respect for and 13 compliance with internationally recognized principles 14 of human rights and the law of war are central and 15 deciding factors in determining the eligibility of the 16 country to purchase defense articles or defense serv- 17 ices under this Act. 18 ‘‘(2) EXAMPLES OF INCONSISTENT ACTIONS 19 AND BEHAVIORS.—Actions or behavior by a country 20 inconsistent with the principles described in para- 21 graph (1) include the following: 22 ‘‘(A) Gross violations of internationally 23 recognized human rights (as defined in section 24 502B(d) of the Foreign Assistance Act of 1961 25 (22 U.S.C. 2304(d))). 26 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4739 IS ‘‘(B) Failure to adhere to standards of 1 proportionality and discrimination. 2 ‘‘(C) Patterns or egregious incidents of de- 3 struction or damage of medical facilities or 4 other civilian infrastructure. 5 ‘‘(D) Patterns or egregious incidents of 6 harming or disregard for the safety of medical 7 personnel, aid workers, peacekeepers, or jour- 8 nalists. 9 ‘‘(E) Patterns or egregious incidents of 10 harming or disregard for the safety of civilians. 11 ‘‘(F) The denial of humanitarian relief re- 12 sulting in serious harm to civilian populations. 13 ‘‘(G) Gross or systemic corruption, lack of 14 transparency, or lack of accountability in the 15 government or among security forces. 16 ‘‘(3) REPORTING OF INCONSISTENT ACTIONS 17 AND BEHAVIORS.— 18 ‘‘(A) REPORTS BY OFFICERS OR EMPLOY- 19 EES OF UNITED STATES.—Any officer or em- 20 ployee of the United States Government sta- 21 tioned in a country with knowledge of action or 22 behavior by that country that is inconsistent 23 with the principles described in paragraph (1) 24 shall report the action or behavior to the chief 25 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4739 IS of mission (as defined in section 102 of the 1 Foreign Service Act of 1980 (22 U.S.C. 3902)) 2 for that country. 3 ‘‘(B) REPORTING TO SECRETARY OF 4 STATE.—A chief of mission that receives a re- 5 port under subparagraph (A) with respect to an 6 action or behavior shall promptly report the ac- 7 tion or behavior to the Secretary of State. 8 ‘‘(C) REPORTING TO CONGRESS.—Not 9 later than seven days after the Secretary re- 10 ceives a report under subparagraph (B) with re- 11 spect to an action or behavior, the Secretary 12 shall submit to Congress a report on the action 13 or behavior. The report shall be submitted in 14 unclassified form, but may include a classified 15 annex if necessary. The report shall include at 16 a minimum the following information: 17 ‘‘(i) The title or subject of each re- 18 port. 19 ‘‘(ii) A description of significant prob- 20 lems, abuses, and deficiencies related to 21 the inconsistent actions and behaviors of 22 the country in question. 23 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4739 IS ‘‘(iii) A description of the evidence or 1 information used to form the basis for the 2 report. 3 ‘‘(4) INTELLIGENCE COMMUNITY REPORTING.— 4 The Director of National Intelligence may specify 5 additional reporting procedures for officers or em- 6 ployees who are members of the intelligence commu- 7 nity. Such procedures shall encompass reporting and 8 analysis of information relevant to the principles de- 9 scribed in this subsection but which may be insuffi- 10 ciently verified or not of sufficient severity for re- 11 porting under paragraph (3). 12 ‘‘(5) INCLUSION IN INTELLIGENCE PRIOR- 13 ITIES.—The Director of National Intelligence shall 14 ensure that collection and analysis of information re- 15 lated to the principles described in this subsection is 16 included in each National Intelligence Priorities 17 Framework, or any successor directive. 18 ‘‘(b) MONITORING AND VERIFICATION PROGRAM.— 19 ‘‘(1) IN GENERAL.—The Secretary of Defense 20 shall carry out a program of monitoring and 21 verification of the use of defense articles and defense 22 services acquired under this Act by countries of con- 23 cern. 24 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4739 IS ‘‘(2) ELEMENTS.—The program established 1 under this subsection shall include the following ele- 2 ments: 3 ‘‘(A) The observation and evaluation by 4 members of the United States Armed Forces of 5 the targeting process used by the country of 6 concern, the employment of the acquired de- 7 fense articles by the country of concern, the re- 8 turn of any unused defense articles, and the 9 post-use assessment of damage and casualties. 10 ‘‘(B) Employment by the Secretary of De- 11 fense of direct observation, real-time video 12 feeds, other real-time sensory data and collec- 13 tion methods, and other appropriate sources of 14 information that can be independently authenti- 15 cated by the United States Government, as op- 16 posed to reports or other nonobjective media 17 created or provided by a country of concern, 18 which are not appropriate sources of informa- 19 tion. 20 ‘‘(3) AVAILABILITY AND USE OF INFORMA- 21 TION.— 22 ‘‘(A) IN GENERAL.—The Secretary of De- 23 fense shall make available to the Secretary of 24 State, the appropriate congressional commit- 25 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4739 IS tees, and the Human Rights and Law of War 1 Oversight Board established under section 4 of 2 the Values in Arms Export Act of 2020 all in- 3 formation collected or evaluated as part of the 4 program established under this subsection. 5 ‘‘(B) APPROPRIATE CONGRESSIONAL COM- 6 MITTEES DEFINED.—In this paragraph, the 7 term ‘appropriate congressional committees’ 8 means— 9 ‘‘(i) the Committee on Foreign Rela- 10 tions, the Committee on Armed Services, 11 and the Committee on Appropriations of 12 the Senate; and 13 ‘‘(ii) the Committee on Foreign Af- 14 fairs, the Committee on Armed Services, 15 and the Committee on Appropriations of 16 the House of Representatives. 17 ‘‘(4) SEPARATE BUDGETARY LINE ITEM.—The 18 Secretary of Defense shall include in the budget jus- 19 tification materials submitted to Congress in support 20 of the Department of Defense budget for each fiscal 21 year (as submitted with the budget of the President 22 under section 1105(a) of title 31, United States 23 Code) specific identification, as a budgetary line 24 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4739 IS item, of the amounts required for the program es- 1 tablished under this subsection. 2 ‘‘(5) FUNDING.—Funding to carry out the re- 3 quirements of this section shall be derived from 4 amounts collected under section 21. The President 5 shall ensure such charges pursuant to such section 6 are sufficient to fully meet all requirements of this 7 section without cost to the United States. 8 ‘‘(c) EVALUATION BY THE SECRETARY OF STATE.— 9 ‘‘(1) CONSIDERATION OF INFORMATION.—The 10 Secretary of State— 11 ‘‘(A) shall consistently review all relevant 12 information related to a country of concern to 13 determine to whether the country has engaged 14 in any action or behavior inconsistent with the 15 principles described in subsection (a)(1), includ- 16 ing— 17 ‘‘(i) information gathered through the 18 program established under subsection (b); 19 ‘‘(ii) information from any agency of 20 the United States Government, including 21 reports under subsection (a)(3); 22 ‘‘(iii) information referred by Mem- 23 bers of Congress; and 24 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4739 IS ‘‘(iv) credible reports or information 1 gathered by members of the media, non- 2 governmental organizations, foreign coun- 3 tries, international organizations, or aca- 4 demic experts; and 5 ‘‘(B) may consider exculpatory information 6 proffered by the country if— 7 ‘‘(i) the information can be independ- 8 ently authenticated by the United States; 9 ‘‘(ii) the country provides access to all 10 information in its possession about alleged 11 incidents of the use of security forces of 12 the country in a manner that is incon- 13 sistent with the principles described in sub- 14 section (a)(1); and 15 ‘‘(iii) there is no evidence that the 16 country has attempted to obstruct inves- 17 tigations by independent parties. 18 ‘‘(2) DETERMINATIONS REQUIRED.—In each 19 case in which a country of concern may have en- 20 gaged in an action or behavior inconsistent with the 21 principles described in subsection (a)(1), the Sec- 22 retary of State, based on United States standards 23 and policy for the conduct of the United States 24 Armed Forces or international law, as applicable, 25 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4739 IS shall make a determination as to the legality and ap- 1 propriateness of— 2 ‘‘(A) the action or behavior; and 3 ‘‘(B) the employment of defense articles or 4 defense services acquired under this Act in the 5 action or behavior. 6 ‘‘(d) DESIGNATION OF COUNTRIES OF CONCERN.— 7 ‘‘(1) COUNTRY OF CONCERN DEFINED.—In this 8 section, the term ‘country of concern’— 9 ‘‘(A) means— 10 ‘‘(i) a country designated as a country 11 of concern by the President, the Secretary 12 of State, the Secretary of Defense, or the 13 Human Rights and Law of War Oversight 14 Board established under section 4 of the 15 Values in Arms Export Act of 2020; 16 ‘‘(ii) a country designated as a coun- 17 try of concern by law or by Congress 18 through the adoption of a concurrent reso- 19 lution; or 20 ‘‘(iii) any country with respect to 21 which the United States has determined 22 that one or more units of the security 23 forces of the country is ineligible for assist- 24 ance pursuant to section 620M of the For- 25 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4739 IS eign Assistance Act of 1961 (22 U.S.C. 1 2378d) or section 362 of title 10, United 2 States Code, notwithstanding any waiver 3 exercised under such sections; and 4 ‘‘(B) does not include the North Atlantic 5 Treaty Organization, or any member country of 6 such Organization, Japan, Australia, the Re- 7 public of Korea, Israel, or New Zealand. 8 ‘‘(2) DURATION OF DESIGNATION.—The des- 9 ignation of a country as a country of concern under 10 paragraph (1)— 11 ‘‘(A) shall remain in effect for a period of 12 three years; and 13 ‘‘(B) may be renewed, before the previous 14 designation expires, in any manner in which a 15 designation may be made under paragraph (1). 16 ‘‘(3) EXPEDITED PROCEDURES.— 17 ‘‘(A) CONSIDERATION IN SENATE.—Any 18 bill, joint resolution, or concurrent resolution 19 designating a country as a country of concern 20 under paragraph (1)(A)(ii) shall be considered 21 in the Senate in accordance with the provisions 22 of section 601(b) of the International Security 23 Assistance and Arms Export Control Act of 24 1976 (Public Law 94–329; 90 Stat. 765). 25 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4739 IS ‘‘(B) CONSIDERATION IN HOUSE OF REP- 1 RESENTATIVES.—For the purpose of expediting 2 the consideration of bills, joint resolutions, or 3 concurrent resolutions designating a country as 4 a country of concern under paragraph 5 (1)(A)(ii), a motion to proceed to the consider- 6 ation of any such bill, joint resolution, or con- 7 current resolution after it has been reported by 8 the appropriate committee shall be treated as 9 highly privileged in the House of Representa- 10 tives. 11 ‘‘(e) INELIGIBILITY FOR SALES AND TRANSFERS.— 12 ‘‘(1) IN GENERAL.—A country shall be ineli- 13 gible for sale or transfer of defense articles (includ- 14 ing spare parts for such articles) or defense services, 15 or the extension of credit (including participation in 16 the extension of credit) or loan guarantees under 17 this Act, for a 10-year period beginning on, and 18 shall immediately discontinue the use of, or return 19 to the United States, any covered defense articles in 20 its possession effective as of, the date— 21 ‘‘(A) the country is designated a country of 22 concern under subsection (d) for the second 23 time in a 10-year period; 24 VerDate Sep 11 2014 21:56 Oct 17, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S4739.IS S4739 kjohnson on DSK79L0C42PROD with BILLS 13 •S 4739 IS ‘‘(B) the Secretary of State, in consulta- 1 tion with the Secretary of Defense, determines 2 that the country, at the end of the three-year 3 [Text truncated for display. 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