I
116th CONGRESS
2d Session
H. R. 8707
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) introduced the following bill; which was referred to the Committee on Foreign Affairs
A BILL
To require certifications for transfers of certain United States defense articles and defense services, and for other purposes.
Short title
This Act may be cited as the Middle East Advanced Military Technology Protection Act
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Findings
Congress finds the following:
In June 2017, the Assistant Secretary of State for Political-Military Affairs testified to Congress, Arms transfers are foreign policy. When we transfer a system or a capability to a foreign partner, we are affecting regional—or foreign internal—balances of power; we are sending a signal of support; and we are establishing or sustaining relationships that may last for generations and provide benefits for an extended period of time.
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For more than 50 years, the United States has worked to ensure Israel’s qualitative military edge when considering the sale or export of defense articles and defense services to Israel or to others in the Middle East region.
Maintaining a substantial qualitative military edge is critical to preserving Israel’s safety and security and has been a vital consideration in all previous sales of weapons to the region.
Congress codified United States support for Israel’s qualitative military edge as United States policy in 2008 in section 201 of Public Law 110–429 (22 U.S.C. 2776 note), which requires that any proposed U.S. arms sale to any country in the Middle East other than Israel
must include a notification to Congress with a determination that the sale or export of such would not adversely affect Israel’s qualitative military edge over military threats to Israel
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In 2016, the United States and Israel signed a 10-year Memorandum of Understanding, in which the United States committed that the acquisition of additional U.S.-produced capabilities and technology provide the best means to ensure Israel preserves its Qualitative Military Edge (QME)
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In 2015, Vice President Joe Biden announced United States intention to transfer the F–35 Joint Strike Fighter to Israel: What you may not know is that next year, we will deliver to Israel the F–35 Joint Strike Fighter—our finest—making Israel the only country in the Middle East with a fifth-generation aircraft. No other.
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In 2016, Israel received its first shipment of F–35 Joint Strike Fighter aircraft and on the occasion, the Israeli Defense Forces stated, As the Middle East grows more and more unstable, and as groups that threaten to destroy us race to stockpile weapons, we need to stay a step ahead of the game. The F–35 gives us the edge we need to take on groups and armies with even the most advanced technology.
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Statement of policy
It shall be the policy of the United States that a proposed sale or export of defense articles or defense services must be determined not to adversely affect Israel’s ability to counter and defeat any credible conventional military threat from any individual state or possible coalition of states or from non-state actors, while sustaining minimal damages and casualties, through the use of superior military means possessed in sufficient quantity, including weapons, command, control, communication, intelligence, surveillance, and reconnaissance capabilities that in their technical characteristics are superior in capability to those of such other individual state or possible coalition states or non-state actors, consistent with section 36(h) of the Arms Export Control Act (22 U.S.C. 2776(h)).
Certification on criteria for transfer of covered defense articles and defense services
In general
Subject to subsections (c) and (d), and notwithstanding any other provision of law, the President may not transfer covered defense articles or defense services to any country in the Middle East other than Israel until at least 60 days after the date on which the President transmits to the appropriate congressional committees a certification described in subsection (b) with respect to the proposed transfer.
Certification described
A certification described in this subsection is a certification in writing of the following:
The recipient country has signed an agreement of peace or normalization with Israel.
The transfer of the covered defense articles or defense services includes a determination pursuant to section 36(h) of the Arms Export Control Act (22 U.S.C. 2776(h)).
The transfer of the covered defense articles or defense services does not present a significant danger of compromising the critical military and technological military advantage such articles or services provide to the United States Armed Forces.
The transfer of the covered defense articles or defense services will not negatively affect Israel’s qualitative military edge.
The covered defense articles have been modified to ensure that Israel is able to identify, locate, and continually track such articles while in flight at a distance that is satisfactory to Israel, and that the recipient country will not alter such modifications.
The recipient country has provided specific, reliable, and verifiable assurances to the United States that it will protect the covered defense articles and defense services from theft or diversion of sensitive defense technology to any other country or non-state actor.
The recipient country has provided specific, reliable, and verifiable assurances to the United States that it will not use the covered defense articles or defense services to commit, or enable the commission of, a violation of international humanitarian law or internationally recognized human rights.
The recipient country has provided specific, reliable, and verifiable assurances to the United States that it will not make transfers of the covered defense articles or defense services to another country or non-state actor without specific authorization from the United States.
Except as provided in subsection (e), the recipient country has provided specific, reliable, and verifiable assurances to the United States that it will employ the covered defense articles and defense services when armed only after consultation with the United States relating to the mission, flight plan, and purpose of use of the articles and services.
The President has established procedures to continually monitor and verify the compliance of the recipient country with the requirements described in paragraphs (1) through (8).
Emergency circumstances
If the President determines that an emergency exists which requires the proposed transfer of covered defense articles or defense services to any country in the Middle East other than Israel, the President shall provide the certification described in subsection (a) with respect to the proposed transfer not later than 10 days before the proposed transfer.
Failure To provide certification
If the President is unable to make the certification described in subsection (a) with respect to a proposed transfer of covered defense articles or defense services to any country in the Middle East other than Israel, the President may not transfer the articles or services to such country.
Exception
The requirements of subsection (b)(9) shall not apply with respect to the use of the covered defense articles and defense services in the airspace of the recipient country.
Annual certification
In general
Not later than February 1 of each calendar year following a calendar year in which covered defense articles or defense services have been transferred to any country in the Middle East other than Israel, the President shall provide a certification to the appropriate congressional committees that the country continues to comply with the requirements described in paragraphs (1) through (8) of section 4(b).
Failure To provide certification
If the President is unable to make the certification described in subsection (a) with respect to a calendar year, the President may not provide logistic support, maintenance, or supply replacement parts to the recipient country for the remainder of such calendar year.
Definitions
In this Act:
Appropriate congressional committees
The term appropriate congressional committees means the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate.
Covered defense articles and defense services
The term covered defense articles and defense services means—
the F–35 Joint Strike Fighter aircraft and associated services;
any electronic warfare aircraft and associated services; and
any armed unmanned aerial systems and associated services.
Qualitative military edge
The term qualitative military edge has the meaning given that term in section 36(h)(3) of the Arms Export Control Act (22 U.S.C. 2776(h)(3)).