Middle East Advanced Military Technology Protection Act

I 116TH CONGRESS 2D SESSION H. R. 8707 To require certifications for transfers of certain United States defense articles and defense services, and for other purposes. IN THE HOUSE OF REPRESENTATIVES OCTOBER 30, 2020 Mr. ENGEL (for himself, Mr. DEUTCH, Ms. SPANBERGER, Mr. MALINOWSKI, Mr. GOTTHEIMER, Mr. SCHNEIDER, Ms. WASSERMAN SCHULTZ, Mrs. MURPHY of Florida, Mr. TRONE, Mr. SHERMAN, and Mr. CONNOLLY) in- troduced the following bill; which was referred to the Committee on For- eign Affairs A BILL To require certifications for transfers of certain United States defense articles and defense services, 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 ‘‘Middle East Advanced 4 Military Technology Protection Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 8707 IH (1) In June 2017, the Assistant Secretary of 1 State for Political-Military Affairs testified to Con- 2 gress, ‘‘Arms transfers are foreign policy. When we 3 transfer a system or a capability to a foreign part- 4 ner, we are affecting regional—or foreign internal— 5 balances of power; we are sending a signal of sup- 6 port; and we are establishing or sustaining relation- 7 ships that may last for generations and provide ben- 8 efits for an extended period of time.’’. 9 (2) For more than 50 years, the United States 10 has worked to ensure Israel’s qualitative military 11 edge when considering the sale or export of defense 12 articles and defense services to Israel or to others in 13 the Middle East region. 14 (3) Maintaining a substantial qualitative mili- 15 tary edge is critical to preserving Israel’s safety and 16 security and has been a vital consideration in all 17 previous sales of weapons to the region. 18 (4) Congress codified United States support for 19 Israel’s qualitative military edge as United States 20 policy in 2008 in section 201 of Public Law 110– 21 429 (22 U.S.C. 2776 note), which requires that any 22 proposed U.S. arms sale to ‘‘any country in the Mid- 23 dle East other than Israel’’ must include a notifica- 24 tion to Congress with a ‘‘determination that the sale 25 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 8707 IH or export of such would not adversely affect Israel’s 1 qualitative military edge over military threats to 2 Israel’’. 3 (5) In 2016, the United States and Israel 4 signed a 10-year Memorandum of Understanding, in 5 which the United States committed that ‘‘the acqui- 6 sition of additional U.S.-produced capabilities and 7 technology provide the best means to ensure Israel 8 preserves its Qualitative Military Edge (QME)’’. 9 (6) In 2015, Vice President Joe Biden an- 10 nounced United States intention to transfer the F– 11 35 Joint Strike Fighter to Israel: ‘‘What you may 12 not know is that next year, we will deliver to Israel 13 the F–35 Joint Strike Fighter—our finest—making 14 Israel the only country in the Middle East with a 15 fifth-generation aircraft. No other.’’. 16 (7) In 2016, Israel received its first shipment of 17 F–35 Joint Strike Fighter aircraft and on the occa- 18 sion, the Israeli Defense Forces stated, ‘‘As the Mid- 19 dle East grows more and more unstable, and as 20 groups that threaten to destroy us race to stockpile 21 weapons, we need to stay a step ahead of the game. 22 The F–35 gives us the edge we need to take on 23 groups and armies with even the most advanced 24 technology.’’. 25 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 8707 IH SEC. 3. STATEMENT OF POLICY. 1 It shall be the policy of the United States that a pro- 2 posed sale or export of defense articles or defense services 3 must be determined not to adversely affect Israel’s ability 4 to counter and defeat any credible conventional military 5 threat from any individual state or possible coalition of 6 states or from non-state actors, while sustaining minimal 7 damages and casualties, through the use of superior mili- 8 tary means possessed in sufficient quantity, including 9 weapons, command, control, communication, intelligence, 10 surveillance, and reconnaissance capabilities that in their 11 technical characteristics are superior in capability to those 12 of such other individual state or possible coalition states 13 or non-state actors, consistent with section 36(h) of the 14 Arms Export Control Act (22 U.S.C. 2776(h)). 15 SEC. 4. CERTIFICATION ON CRITERIA FOR TRANSFER OF 16 COVERED DEFENSE ARTICLES AND DEFENSE 17 SERVICES. 18 (a) IN GENERAL.—Subject to subsections (c) and (d), 19 and notwithstanding any other provision of law, the Presi- 20 dent may not transfer covered defense articles or defense 21 services to any country in the Middle East other than 22 Israel until at least 60 days after the date on which the 23 President transmits to the appropriate congressional com- 24 mittees a certification described in subsection (b) with re- 25 spect to the proposed transfer. 26 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 8707 IH (b) CERTIFICATION DESCRIBED.—A certification de- 1 scribed in this subsection is a certification in writing of 2 the following: 3 (1) The recipient country has signed an agree- 4 ment of peace or normalization with Israel. 5 (2) The transfer of the covered defense articles 6 or defense services includes a determination pursu- 7 ant to section 36(h) of the Arms Export Control Act 8 (22 U.S.C. 2776(h)). 9 (3) The transfer of the covered defense articles 10 or defense services does not present a significant 11 danger of compromising the critical military and 12 technological military advantage such articles or 13 services provide to the United States Armed Forces. 14 (4) The transfer of the covered defense articles 15 or defense services will not negatively affect Israel’s 16 qualitative military edge. 17 (5) The covered defense articles have been 18 modified to ensure that Israel is able to identify, lo- 19 cate, and continually track such articles while in 20 flight at a distance that is satisfactory to Israel, and 21 that the recipient country will not alter such modi- 22 fications. 23 (6) The recipient country has provided specific, 24 reliable, and verifiable assurances to the United 25 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 8707 IH States that it will protect the covered defense arti- 1 cles and defense services from theft or diversion of 2 sensitive defense technology to any other country or 3 non-state actor. 4 (7) The recipient country has provided specific, 5 reliable, and verifiable assurances to the United 6 States that it will not use the covered defense arti- 7 cles or defense services to commit, or enable the 8 commission of, a violation of international humani- 9 tarian law or internationally recognized human 10 rights. 11 (8) The recipient country has provided specific, 12 reliable, and verifiable assurances to the United 13 States that it will not make transfers of the covered 14 defense articles or defense services to another coun- 15 try or non-state actor without specific authorization 16 from the United States. 17 (9) Except as provided in subsection (e), the re- 18 cipient country has provided specific, reliable, and 19 verifiable assurances to the United States that it will 20 employ the covered defense articles and defense serv- 21 ices when armed only after consultation with the 22 United States relating to the mission, flight plan, 23 and purpose of use of the articles and services. 24 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 8707 IH (10) The President has established procedures 1 to continually monitor and verify the compliance of 2 the recipient country with the requirements de- 3 scribed in paragraphs (1) through (8). 4 (c) EMERGENCY CIRCUMSTANCES.—If the President 5 determines that an emergency exists which requires the 6 proposed transfer of covered defense articles or defense 7 services to any country in the Middle East other than 8 Israel, the President shall provide the certification de- 9 scribed in subsection (a) with respect to the proposed 10 transfer not later than 10 days before the proposed trans- 11 fer. 12 (d) FAILURE TO PROVIDE CERTIFICATION.—If the 13 President is unable to make the certification described in 14 subsection (a) with respect to a proposed transfer of cov- 15 ered defense articles or defense services to any country 16 in the Middle East other than Israel, the President may 17 not transfer the articles or services to such country. 18 (e) EXCEPTION.—The requirements of subsection 19 (b)(9) shall not apply with respect to the use of the cov- 20 ered defense articles and defense services in the airspace 21 of the recipient country. 22 SEC. 5. ANNUAL CERTIFICATION. 23 (a) IN GENERAL.—Not later than February 1 of each 24 calendar year following a calendar year in which covered 25 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 8707 IH defense articles or defense services have been transferred 1 to any country in the Middle East other than Israel, the 2 President shall provide a certification to the appropriate 3 congressional committees that the country continues to 4 comply with the requirements described in paragraphs (1) 5 through (8) of section 4(b). 6 (b) FAILURE TO PROVIDE CERTIFICATION.—If the 7 President is unable to make the certification described in 8 subsection (a) with respect to a calendar year, the Presi- 9 dent may not provide logistic support, maintenance, or 10 supply replacement parts to the recipient country for the 11 remainder of such calendar year. 12 SEC. 6. DEFINITIONS. 13 In this Act: 14 (1) APPROPRIATE CONGRESSIONAL COMMIT- 15 TEES.—The term ‘‘appropriate congressional com- 16 mittees’’ means the Committee on Foreign Affairs of 17 the House of Representatives and the Committee on 18 Foreign Relations of the Senate. 19 (2) COVERED DEFENSE ARTICLES AND DE- 20 FENSE SERVICES.—The term ‘‘covered defense arti- 21 cles and defense services’’ means— 22 (A) the F–35 Joint Strike Fighter aircraft 23 and associated services; 24 VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 8707 IH (B) any electronic warfare aircraft and as- 1 sociated services; and 2 (C) any armed unmanned aerial systems 3 and associated services. 4 (3) QUALITATIVE MILITARY EDGE.—The term 5 ‘‘qualitative military edge’’ has the meaning given 6 that term in section 36(h)(3) of the Arms Export 7 Control Act (22 U.S.C. 2776(h)(3)). 8 Æ VerDate Sep 11 2014 18:58 Nov 20, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\H8707.IH H8707 pamtmann on DSKBC07HB2PROD with BILLS