News

INTERPRETING THE PRESSLER AMENDMENT (Senate - March 19, 1992)



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Mr. PRESSLER
Memo Received From State Department
Pressler Amendment: Licensing of Arms Exports Pursuant to Private Sales

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From the Los Angeles Times, Mar. 6, 1992
Despite Ban, United States Arms Are Sold to Pakistan

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From the Washington Post, Mar. 7, 1992
Shipments to Pakistan Questioned; Commercial Sales of War Materiel May Break U.S. Law

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From the Los Angeles Times, Mar. 7, 1992
United States Knew Arms Sales Broke Law, Pell Charges
From the New York Times, Mar. 8, 1992
Senators Seek Full Cutoff of Arms to Pakistan
INSISTS ON LEGAL OPINION
RIVALS AT INGRATIATION
From the Chicago Sun-Times, Mar. 8, 1992
Sales to Pakistan Seen Skirting Law

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From the Orange County Register, Mar. 8, 1992
Total Arms Cutoff to Pakistan Sought
From the Austin American-Statesman, Mar. 8, 1992
Senators Push White House To Halt Private Weapons Sales to Pakistan
From the Houston Chronicle, Mar. 8, 1992
Military Shipments to Pakistan Raising Questions in Congress

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Mr. PRESSLER. Mr. President, the world today is poised, perhaps as close as it has ever been, to achieving the dream of world peace. No longer is our planet engaged in a bipolar contest, a world living under the threat of global nuclear war.

Yet the Government of Pakistan continues to proceed along the path of nuclear club membership. I have worked against the proliferation of nuclear arms for years in the Senate, and it is frustrating to see that our own State Department seems not to share the concern of Congress with Pakistan's Nuclear Program.

Last month, when Secretary of State James Baker appeared before the Foreign Relations Committee, I inquired about the administration's policy on the Pressler amendment. Agreed to as part of the 1986 Foreign Assistance Act, the amendment was designed to force Pakistan to curtail its growing nuclear capability. Since 1990, the President has been unable to certify that Pakistan does not possess a nuclear explosive device. Consequently, as provided in the amendment, all foreign assistance to that country has been terminated. However, the State Department continues to allow the licensing of commercial military parts and technology sales to Pakistan.

Mr. President, I am an attorney, but I do not believe it takes one to understand the Pressler amendment. To quote from the amendment, `no assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan. * * *' The language seems quite clear. By licensing the export of arms and military technology to the Government of Pakistan, it seems to me the State Department is in violation of both the letter and the spirit of the Pressler amendment.

The Department of State has furnished me with an unsigned memorandum outlining its rationale for its interpretation of the amendment. As I told the Washington Post, it reads like a paper for political science 101. The paper did not fully address the questions I raised with Secretary Baker during the Foreign Relations hearing. During my tenure as a lawyer at the Department of State, departmental interpretations of legislation were based on memorandums of law in a specific format and signed by an attorney. It was my understanding that Secretary Baker was referring to just such a document when he said `as a legal matter it is the view of our lawyers that the [Pressler amendment] does not apply to commercial arms sales or exports.'

The paper simply does not answer how the State Department, as a matter of law, can permit private sales in the light of what appears to be a straightforward statutory ban on the sale or transfer of any military equipment or technology to Pakistan. Mr. President, the memorandum I received from the State Department is not a memorandum of law, but I ask unanimous consent that it be inserted in the Record at the conclusion of my remarks so it may be evaluated by our colleagues.

Mr. President, I would also like to share with my colleagues a legal analysis of the administration's position paper, prepared by the American Law Division of the Congressional Research Service [CRS] at my request. I commend Raymond Celada, senior specialist in American public law at CRS, for his excellent work on this memorandum. The legal analysis presented in the CRS memorandum is exactly the kind of information we need to resolve this matter. It will be highly useful in the continuing debate. The CRS memorandum concludes that while the State Department's position is plausible, the Department's reasons for `nonapplication [of the Pressler amendment] seem open to serious question.' I ask unanimous consent that this legal memorandum also appear in the Record following my remarks.

In letters to the chairman and ranking member of the Senate Foreign Relations Committee last week, I requested that hearings be scheduled to examine the administration's interpretation and application of the Pressler amendment. I would also like to explore the level of congressional consultation engaged in by the State Department in developing its interpretation. Finally, I hope to examine the implications of a policy that allows weapons to be sold but forbids humanitarian assistance, all in the name of arresting Pakistan's ability to build a nuclear weapon. These are matters of such grave importance that I believe the issue must be spread upon the record.

Mr. President, I ask unanimous consent that several articles on this controversy, as well as the State Department's paper and the Congressional Research Service legal memorandum be inserted in the Record at the conclusion of my remarks.

There being no objection, the material was ordered to be printed in the Record, as follows:

Memo Received From State Department

[MEMO RECEIVED FROM STATE DEPARTMENT]

Pressler Amendment: Licensing of Arms Exports Pursuant to Private Sales

On February 5, 1991, during hearings on another subject before the Senate Foreign Relations Committee, Secretary Baker was asked by Senator Pressler whether the `Pressler Amendment' concerning assistance and military sales to Pakistan applied to the licensing of arms exports pursuant to private sales. The Secretary responded that the Administration had concluded that it did not apply, but had adopted a restrictive policy on such licenses designed to preclude the acquisition of new military capabilities by Pakistan. This paper is a recapitulation of the reasons why a suspension of such licensing was not legally required by the Pressler Amendment.

The Pressler Amendment was adopted in 1985 as a new section 620E(e) in the Foreign Assistance Act (FAA). The Presidential certifications called for by this Amendment were made in the five years immediately following its adoption. However, the President was unable to make that certification for FY 1991, with the result that the prohibitions of the Pressler Amendment first took effect in October 1990 (the beginning of FY 1991).

Because the President was able to make the required Pressler Amendment certifications for FY 1986 through FY 1990, the Executive branch did not need during that period to resolve all the potential issues relating to the scope of its prohibitions. It is noteworthy, however, that during the first weeks of each fiscal year prior to the President's certification, the question did arise as to how the Amendment's prohibitions should be applied pending the President's decision. While it was decided that funds should not be obligated nor FMS sales made during such a period, there was never any serious suggestion that the licensing of arms exports pursuant to private sales had to be suspended or modified. This reflected the Administration's confident belief that the Amendment had no application to these private transactions.

The issue of whether the Amendment applied to licensing of such private exports was among those addressed within the Administration when it became clear that a certification might not be made for FY 1991, and again it was concluded that the Amendment did not apply, but that a restrictive policy should be adopted with respect to the licensing of private exports to preclude the acquisition of new military capabilities by Pakistan. This policy was restated in the January 1991 issue of the Defense Trade News (a bulletin provided to the defense trade community by the Department's Politico-Military Bureau), where it was reiterated that assistance and Government sales had been suspended because of the legal requirement of the Pressler Amendment, and that (though not required by the law) the Department would `consider only those license applications for defense articles and services that are necessary to maintain and operate defense systems already in the Pakistani inventory.' As indicated in the following, the Department informed Congress of this position in a series of periodic reports called for under the Arms Export Control Act (AECA).

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1. It is not reasonable to interpret the language of the Pressler Amendment as prohibiting Executive branch licensing of arms exports pursuant to private sales.

The Pressler Amendment provides:

`No assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan, pursuant to the authorities contained in this Act or any other Act, unless the President shall have certified in writing to the Speaker of the House of Representatives and the Chairman of the Committee on Foreign Relations of the Senate, during the fiscal year in which assistance is to be furnished or military equipment or technology is to be sold or transferred, that Pakistan does not possess a nuclear explosive device and that the proposed United States assistance program will reduce significantly the risk that Pakistan will possess a nuclear explosive device.'

Like the rest of the Foreign Assistance Act (FAA), the Pressler Amendment is directed to the U.S. Government rather than to private parties. But in a private arms export transaction (assuming the Government does not provide financing for the sale), the Government neither `furnishes assistance' to the recipient country, nor does it `sell' or `transfer' the items in question--which are the only actions prohibited by the Amendment. By its plain language, the Amendment thus does not apply to Government licensing of such arms exports, and indeed has no apparent applicability to such private arms transactions at all. If the purpose of the provision were in fact to direct the Executive branch to cease granting export licenses in such cases, Congress would have enacted a direct prohibition on the granting of such license, as it has consistently done in other cases.

Furthermore, the Pressler Amendment does not prohibit sales or transfers generally, but only sales or transfers `pursuant to the authorities contained in' the AECA or any other act. This is not relevant to private arms transactions. Neither the AECA nor any other act authorizes private arms sales and transfers, which do not require statutory authorization. Rather, section 38 of the AECA provides for the imposition by the President of licensing controls on the export and import of such items. Section 38(a)(3) specifically distinguishes this licensing process from `sales under the Act'--language which the Act clearly uses to refer only to U.S. Government sales.

In addition, the rest of the Pressler Amendment (as well as the statutory section of which it is a part) confirms that it applies to U.S. Government assistance programs and not to private arms transactions. Under the Amendment, the President must certify not only that Pakistan does not possess a nuclear explosive device, but also that `the proposed United States assistance program' will reduce significantly the risk that Pakistan will possess a nuclear explosive device. Likewise, the Pressler Amendment is an amendment to section 620E of the FAA, which is entitled `Assistance to Pakistan', and the remainder of the section describes the purposes Congress hoped to achieve through U.S. `assistance' to Pakistan.

These references to U.S. `assistance' cannot reasonably be read to apply to the licensing of arms exports pursuant to private sales that are contracted, priced and financed through private arrangements, and which are not generally regarded as `assistance' to a foreign country. (This is in contrast to FMS sales by the U.S. Government, which do provide foreign purchasers the important benefits of U.S. Government contract, pricing and program arrangements--as well, in many instances, of financing for the sales.)

2. Licensing of arms exports pursuant to private sales have consistently been treated as not covered by statutory language comparable to that used in the Pressler Amendment.

Statutory provisions in foreign assistance legislation referring to sales or transfers under the authority of the AECA or other acts, and not referring specifically to the licensing of private transactions, have consistently been interpreted as not applying to private arms exports. Some notable examples are (emphasis added):

Drug producing countries. The prohibition in section 681 of the FAA on assistance to major illicit drug producing countries includes `sales . . . under the Arms Export Control Act' and does not specifically mention private transactions licensed under that Act. This prohibition has accordingly not been applied to such private transactions.

Countries violating the terms of U.S. military sales. The requirements of section 3(c) of the AECA with respect to countries that may have violated the terms of previous sales apply to `defense articles or defense services furnished under this Act, or any predecessor Act'; private transactions licensed under these acts are not specifically mentioned. These requirements accordingly have not been applied to private transactions involving defense articles or services.

Notifications to Congress. The requirements of section 36(b) of the AECA with respect to notification of proposed sales to Congress apply to certain categories of offers `to sell any defense articles or services under this Act' and private transactions licensed under the Act are not specifically mentioned. These requirements accordingly have not been applied to such private transactions.

Prohibitions on specific countries. Section 728 of the International Security and Development Cooperation Act of 1981 prohibited various transactions with respect to El Salvador until certain certifications were made. Subsection 728(c) required the suspension of `all deliveries of defense articles, defense services, and design and construction services to El Salvador which were sold under the Arms Export Control Act' after the date of enactment of the section, but no specific reference was made to private transactions. Likewise, section 566 of the 1989 Foreign Operations Appropriations Act prohibited the issuance of `letters of offer and acceptance' to Oatar but made no specific reference to the licensing of private exports. These sections have not been applied to such private transactions.

The same is true with respect to the prohibitions on transactions with Panama contained in section 561 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990. That section covered `sales . . . under the Arms Export Control Act' as well as transfers of defense articles by other agencies, such as the CIA, but did not mention private transactions. The section was accordingly not applied to such private transactions (although as a matter of policy, the Department did not issue licenses for private arms exports to Panama during the period of its applicability).

Congress is and has been well aware of the manner in which the Executive branch has consistently interpreted such statutory language. Each year, pursuant to a statutory requirement, the Executive branch submits periodic reports clearly identifying the countries which are expected to receive (among other things) FMS sales or private export licenses. In particular, Congress has been well informed of the precise manner in which these prohibitions have been applied in cases such as El Salvador, and has changed the scope of the prohibitions by further statutory enactment when it believed such changes were called for.

Since the prohibition in the Pressler Amendment took effect in October 1990, the Administration has clearly informed Congress of intent not to discontinue granting export licenses for private arms sales to Pakistan (while at the same time maintaining a restrictive policy on issuing such licenses to prevent the acquisition by Pakistan of new military capabilities). For example, in each of the unclassified quarterly reports to Congress required under section 36(a) of the AECA since October 1990, the Administration included the amounts of arms exports to Pakistan pursuant to private sales. The same is true with respect to the Congressional Presentation Documents for FY 1992 and 1993 that were provided to Congress pursuant to section 25 of the AECA, which listed the total anticipated value of such exports.

3, When Congress intends that provisions in foreign assistance legislation apply to private arms transactions, it consistently uses language making clear that intention.

The great majority of the provisions of U.S. legislation on foreign assistance and arms transactions apply only to Government sales, the use of U.S. funds for the financing of private arms sales, or other forms of U.S. assistance. On occasion Congress has also provided for the application of such provisions to private transactions not financed by the Government. Recognizing that this is an unusual step, however, Congress has consistently used clear and specific statutory language to do so. Some notable examples are (emphasis added):

Human rights violations. The provisions of section 502B of the FAA concerning governments which commit human rights violations are, under subsection (d)(2)(B), applicable to `sales of defense articles or services * * * under the Arms Export Control Act' and are, under subsection (d)(2)(C), applicable to `any license in effect with respect to the export of defense articles or defense services' of certain types `under section 38 of the Arms Export Control Act.' Subsection (d)(2)(C) would have been superfluous if Congress thought `sales under the AECA' included the licensing of private exports under the same act.

Notifications to Congress. The provisions of section 3(d)(3) of the AECA concerning notification to Congress of consent to retransfers apply to certain defense articles or defense services, `the export of which has been licensed or approved under section 38 of this Act * * *' Similarly, the provisions of section 36(c) concerning notification of transactions apply to any `application by a person other than with regard to a sale under section 21 or section 22 of this Act) for a license for the export of * * *' certain other categories of defense articles or services. These provisions are in clear and deliberate contrast to other notification provisions of the AECA, which refer to sales under the Act but not to private exports licensed under the Act.

Harassment of persons in the U.S. Section 6 of the AECA, concerning countries engaged in harassment of persons in the US, states that `no letters of offer may be issued' to such countries, and then separately states that `no export licenses may be issued under this Act' with respect to such countries.

Countries supporting international terrorism. Section 40 of the AECA, which applies various sanctions to countries supporting international terrorism, also treats private transactions separately from sales under the AECA or other acts. Subsection (a)(1) prohibits `exporting or otherwise providing (by sale, lease or loan, grant, or other means), directly or indirectly, any munitions item * * * under the authority of this Act, the Foreign Assistance Act of 1961, or any other law * * *.' Subsection (a)(4) separately prohibits `providing any license or other approval under section 38 of this Act for any export or other transfer * * * of any munitions item * * *.' Clearly Congress treated its prohibition in subsection (a)(1) on sales under the authority of the AECA or any other law as not applying to the licensing of private exports, which had to be separately covered in subsection (a)(4).

Prohibitions on specific countries. Sections 725 and 726 of the International Security and Development Cooperation Act of 1981 imposed prohibitions on various transactions with Argentina and Chile until certain certifications were made. Each of these sections contains a prohibition on sales of defense articles and services under the Act, and a separate prohibition on the issuance of export licenses for private transactions. This is in conspicuous contrast to Section 728 of the same act (noted above), which contains only a prohibition on deliveries of defense articles and services, and therefore has not been applied to private transactions.

Likewise, section 586G of the Foreign Operations, Export Financing and Related Programs Appropriations Act, 1991 contains in subsection (a)(1) a prohibition on `any sale with Iraq under the Arms Export Control Act' and, in subsection (a)(2), a separate prohibition on the issuance of licenses for the export to Iraq of any Munitions List items. Similarly, section 620(x) of the FAA, which imposed restrictions on transactions with respect to Turkey until certain certifications relating to Cyprus were made, applied by its terms to `all sales of defense articles and services (whether for cash or by credit, guaranty, or any other means)' and separately to `all licenses with respect to the transportation of arms, ammunitions, and implements of war * * *.'

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4. The legislative history of the Pressler Amendment confirms that it was meant to apply to U.S. Government sales and assistance, but not to licensing of arms exports pursuant to private sales.

Although the Pressler Amendment was enacted in 1985, it originated in the previous year. The Senate Foreign Relations Committee (SFRC) reported out the Pressler language in April 1984. The SFRC Report (S. Rep. No. 98-400) referred repeatedly to the prospective termination of the U.S. assistance program for Pakistan (e.g., p. 19, 59), but did not refer to private arms sales to Pakistan. It expressed a specific preference for the Pressler language requiring the additional certification that the U.S. assistance program for the fiscal year in question would reduce significantly the risk that Pakistan would possess a nuclear explosive device, stressing the importance of the U.S. assistance program as an incentive for Pakistani restraint.

Further, the 1984 SFRC Report states (at p. 19) that `This amendment extends the current standards for terminating assistance from detonation to possession of a nuclear device.' This was a reference to section 670 of the FAA, which applies by its terms to U.S. assistance, including credits and guarantees for FMS sales, but clearly does not apply to the licensing of arms exports pursuant to private sales. Thus the Committee's statement shows its intent to apply the sanctions of other nonproliferation sections to Pakistan if it possessed a nuclear explosive device, but not to expand the scope of the prohibition to encompass private sales. During floor debates on this question, the proponents of action against Pakistan stressed the importance of suspending U.S. assistance and of the pending FMS sale of F-16s by the Government if the terms of the amendment were not met, but the licensing of private arms exports was not addressed.

No foreign assistance legislation was adopted in 1984, but in 1985 the Pressler Amendment was adopted as part of the 1985 foreign assistance legislation. The 1985 committee reports for both the Senate (S.Rep.No.99-34) and the House (H.Rep.No.99-39) were consistent with the description of the Amendment in the SFRC's 1984 report. The importance of the U.S. assistance program and FMS sales was stressed; but no mention was made of licensing of private sales.

The Senate report stated (at p. 14) the the Amendment `is directed to Pakistan because that country is the only aid recipient with a statutory exemption from the existing nuclear non-proliferation requirements contained in Section 669 of the Foreign Assistance Act.' (President Reagan had previously waived section 669--which deals with unsafeguarded transfers of enrichment equipment and technology, and section 670--which deals with unsafeguarded transfers of reprocessing equipment and technology, with respect to Pakistan. These sections apply by their terms to U.S. assistance, including credits and guarantees for FMS sales, but clearly do not apply to the licensing of arms exports pursuant to private sales.) Similarly, the House report stated (at p. 99) that `Pakistan is the only country for which waivers of sections 669 and 670 of the Foreign Assistance Act are currently in force; hence its particular attention to Pakistan.' Once again, this confirms that the intent was to apply to Pakistan other statutory prohibitions concerning nonproliferation if it possessed a nuclear explosive device, but not to extend the scope of those prohibitions to private transactions.

We are aware of nothing else in the brief legislative history of the Pressler Amendment that is inconsistent with these conclusions. In particular, we are aware of nothing that would indicate that Congress thought it was taking the unusual step of suspending private arms transactions, which it has elsewhere done only with specific language and a clear indication of Congressional intent. 1

1 In fact, the Amendment technically does not even establish a comprehensive ban on FMS sales of `defense articles and services', which is the usual language adopted in such cases. The language of the Amendment covers only the more narrow class of `military equipment or technology', which would technically not cover non-military items sold under the FMS program for military use, or training in military techniques not involving the transfer of technical data.

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Congressional Research Service,
Washington, DC, March 10, 1992.
To: Hon. Larry Pressler. Attention: Tom Hohenthaner.
From: American Law Division.
Subject: The Pressler Amendment and Private Arms Sales to Pakistan.

This memorandum is in response to your inquiry of February 26, 1992 requesting our comments regarding the position recently taken by the Department of State that the licensing of arms exports to Pakistan pursuant to private sale is not subject to the restrictions contained in the Pressler Amendment because the latter does not apply in these circumstances.

The Pressler Amendment or the provision of the International Security and Development Cooperation Act of 1985 offered by Senators Mathias, Pressler, and Boschwitz, Senate Report No. 99-34 (1985), page 14, is section 620E(e) of the Foreign Assistance Act (FAA), codified at 22 U.S.C.A. Sec. 2375(e). It provides:

`No assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan, pursuant to the authorities contained in this chapter [Chapter 32--Foreign Assistance or any other Act, unless the President shall have certified in writing to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate, during the fiscal year in which assistance is to be furnished or military equipment or technology is to be sold or transferred, that Pakistan does not possess a nuclear explosive device and that the proposed United States assistance program will reduce significantly the risk that Pakistan will possess a nuclear explosive device.' (Emphasis supplied.)

In summary, the Pressler Amendment requires the President, as a condition for further assistance and sales or transfers of military equipment or technology, to certify that Pakistan does not possess a nuclear explosive device and that the proposed United States assistance will significantly reduce the risk of Pakistan possessing such a device. In reporting the amendment to the Senate, the Foreign Relations Committee seemed faced with a pair of unenviable choices, namely shutting down assistance and military sales to Pakistan in circumstances fraught with adverse consequences to the national security interests of both countries and continuing such assistance and sales and, in the view of some persons, impliedly rewarding Pakistan for its anti non-proliferation activities. The Committee report thus states:

`. . . that continued U.S. assistance to the people of Pakistan is in the national security interests of both countries. The Committee is deeply concerned by the continued development of military capabilities in Pakistan's unsafeguarded nuclear program which jeopardizes future U.S. economic and military assistance.

`The amendment is directed to Pakistan because that country is the only aid recipient with a statutory exemption from the existing nuclear non-proliferation requirement contained in section 669 of the Foreign Assistance Act. The Committee is also deeply concerned about nuclear proliferation risks worldwide. Senate Report No. 99-34 at 14.'

During a February 5, 1992 appearance before the Senate Foreign Relations Committee on another matter, Secretary of State James A. Baker III was essentially asked by Senator Larry Pressler to reconcile the requirements of the amendment bearing his name and allegations of `continuing . . . private commercial sales of certain military items to Pakistan. . . .' Secretary Baker answered that because of some initial uncertainty regarding the reach of the Pressler Amendment the Department gave it a broad interpretation, that is, interpreted it as `cut[ting] off all foreign assistance' to Pakistan. (In light of the State Department's subsequent position regarding the implications for the licensing of arms exports pursuant to private sales of the word `assistance', initial application of the Pressler Amendment in the across-the-broad manner indicated by the Secretary seems both interesting and revealing.)

Secretary Baker went on to say that the initial interpretation of the Pressler Amendment was revised following a `careful review' which concluded that one, it does not apply `to commercial sales or exports controlled by the Department of Commerce' and, two, `that as a legal matter it's the view of our lawyers that it does not apply to commercial arms sales or exports. And so we look at munitions and spare parts that are necessary to maintain the Pakistani military at current levels on a case-by-case basis.' (Emphasis supplied)

Although the distinction between export sales controlled by the Department of State and those controlled by the Department of Commerce is a plausible one, the export of defense articles and defense services which are contained on the United States Munitions List and which to all appearances includes anything and everything in the way of munitions and spare parts worth having, `is regulated exclusively by the Department of State.' 22 CFR 120.4. The vesting of exclusive jurisdiction over arms exports in the Department of State is mirrored in the Department of Commerce export administration regulations which list among `Exports which are not controlled by the Bureau of Export Administration', `[r]egulations administered by the Office of Munitions Control, U.S. Department of State. . . .' 15 CFR Sec. 770.10. Although it is true that the export of items not listed on the Munitions List `are generally under the regulatory jurisdiction of the Department of Commerce pursuant to the Export Administration Act . . . and the implementing Export Administration Regulations . . .', 22 CFR 120.4, the virtually all inclusive, if not exhaustive, nature of the items on the Munitions List, makes it difficult to appreciate what meaningful
`munitions and spare parts' are regulated by the Commerce Department that justify the non-applicability of the Pressler Amendment suggested by Secretary Baker during his February 5, 1992 testimony.

Since that time, State Department lawyers have prepared a briefing paper which sets forth several other reasons for the conclusion that the Pressler Amendment does not bar the licensing of arms exports pursuant to private sales. These reasons include (1) that the language of the Pressler Amendment, conspicuously the terms `assistance' and `military equipment or technology . . . sold or transferred', confine its reach to the United States Government as distinguished from private parties where the former neither furnishes assistance nor sells or transfers military equipment or technology; (2) that the licensing of private sales has not been covered by laws that contain language along the lines of the Pressler Amendment; (3) that statutes applicable to private arms transactions have consistently done so in clear and unmistakable language; and (4) that the legislative history of the Pressler Amendment confirms that its reach only extends to United States Government sales and assistance, not to the licensing of arms exports pursuant to private sales.

Notwithstanding that neither the Pressler Amendment on its face nor circumstances surrounding its passage into law disposes definitively of the issue under discussion, the State Department's reasons for its non-application seems open to serious question. In line with Senator Pressler's February 5, 1992 remarks, we have heretofore assumed that the words `assistance' and `sales and transfers', but most especially `transfers' which is the generic almost universally used to mean arms transactions in the lump, covered the range of activity culminating in the export of arms from the United States, however financed and by whomsoever conducted.

The Pressler Amendment by definition involves arms transfers pursuant to the FAA and of necessity involves those pursuant to the Arms Export Control Act (AECA), 22 U.S.C.A. 2751 et seq. It is literally a part of the former, to wit: `[n]o assistance shall be furnished pursuant to the authorities contained in this chapter [Chapter 32-Foreign Assistance] . . . .' The AECA, the basic authority regulating virtually all other transfers of conventional arms, is implicated for that reason and the language `[n]o assistance shall be furnished . . . and no military equipment or technology shall be sold or transferred . . . pursuant to the authorities contained in . . . any other Act.'

As indicated by the briefing paper, the words `assistance' and sale in the context of these two Acts mean arms transfers wholly or partly at United States expense or with United States financing and sold by or through the United States Government, respectively. However when it comes to the phrase in the Pressler Amendment relating to the transfer of military equipment or technology pursuant to the authorities contained in the FAA and in any other laws, express and implied, the briefing paper excludes arms exports pursuant to private sale on the narrow ground that these exports are not authorized by any law. The latter seems to be a crabbed view of word authorities as it relates to the AECA since its language and implementing regulations (the International
Traffic in Arms Regulations or ITAR) apply to all arms transfers. Stated differently, all arms exports have to be conducted in accord with the rules laid out in the AECA and ITAR. The latter, for example, states that [s]ection 38 of the AECA `authorizes the President to control the export . . . of defense articles and services.' 22 CFR 129.10. `Export' for this purpose means, among other things, `(a) Sending or taking defense articles out of the United States in any manner; (b) Transferring registration or control to a foreign person of any aircraft, vessel, or satellite on the United States Munitions List, whether in the United States or abroad; or (c) Sending or taking technical data outside of the United States in any manner except by mere travel outside of the United States by a person whose personal knowledge includes technical data; . . . .' (Emphasis supplied).

It seems clear that jurisdictional linchpin for application of AECA is the export of defense articles and defense services without qualification, not simply the export of defense articles and defense services furnished or sold or transferred by the United States Government. There is no apparent warrant in the AECA or ITAR for limiting the word `transfers' to exclude arms exports pursuant to private sales and the assertion seems to be at adds with the ITAR provision defining the word `export' which elsewhere states rather clearly that sales are but one of various forms of transfers. `Most of the requirements of this subchapter relate only to exports, as defined above. However, for certain limited purposes, the controls of this subchapter apply to sales and other transfers of defense articles and defense services . . . .' Ibid. (Emphasis supplied). Accordingly, the implicit distinction undertaken by the briefing paper between authorized and regulated by the AECA, for purposes of circumscribing the reach of arms transfers pursuant to the AECA, seems somewhat strained. This and other comments regarding alleged language shortcomings of the Pressler Amendment seem to disregard one of the cardinal rules of statutory construction which is to carry out the intent of Congress. In this connection, Justice Frankfurter observed: `If Congress chooses by appropriate means for expressing its purposes to use language with an unlikely and even odd meaning, it is not for this Court to frustrate its purpose. The Court's task is to construe not English but congressional English. Our problem is not what do ordinary English words mean, but what did Congress mean them to mean.' Dissenting, Commissioner v. Acker, 361 U.S. 87, 94 (1959). Would it have suited the Congressional purpose in indicating to Pakistan that there is a price to be paid for going its own nuclear way and then leave the arms export gap asserted by the briefing paper's authors? The Pressler Amendment's use of the word `transfer' in the context of arms exports seems neither `unlikely' nor `odd' but in keeping with the general practice that gives it the meaning equivalent to transaction.

The briefing paper's second reason for concluding that arms exports pursuant to private sales are not covered by the Pressler Amendment is that its language is `comparable' to that in other laws which it is asserted do not apply to private arms exports. We note in passing that none of the cited laws contain language very similar, much less identical, to the Pressler Amendment's language; comparable seems a bit too elastic and elusive when precision and probative value are the qualities being sought. See and compare `[n]o assistance
shall be furnished to . . . and no military equipment or technology shall be sold or transferred . . . pursuant to the authorities contained in this Act or any other Act . . . .' in the Pressler Amendment with the definition of `United States assistance' as `(B) sales, credits, and guaranties under the Arms Export Control Act . . .' in section 481 of the FAA, 22 U.S.C.A. 2291(i)(4)(B), with using `defense articles and defense services furnished under this chapter [Chapter 39-Arms Export Control], or any predecessor Act . . .' in section 3(c) of the AECA, 22 U.S.C.A. Sec. 2753(c)(1)(a), with `any letter of offer to sell any defense articles or services under this chapter [Chapter 39-Arms Export Control]' in section 36(b) of the AECA, 22 U.S.C.A. 2776(b), with `suspend all deliveries of defense articles, defense services, and design and construction services to El Salvador which were sold under the Arms Export Control Act after the date of enactment of this Act' in section 728(c) of the International Security and Development Cooperation Act of 1981, 22 U.S.C.A. 2370 note, with `before issuing any letter of offer to sell any defense article or defense service to Qatar . . .' in section 566(d), Foreign Operations Appropriations Act, 1989, Public law 100-461, 102 Stat. 2268, 2268-43 (1988), and with the definition of `United States assistance' as `(2) sales, credits, and guarantees under the Arms Export Control Act . . .' in section 561, Foreign Operations Appropriations Act, 1990, Public Law 101-167, 103 Stat. 1195, 1240 (1989).

The briefing paper implies but does not show that the implied exclusion of private transactions claimed for these provisions conforms to the congressional intent or that their administration by the Department of State to exclude private transactions came to the actual as distinguished from constructive attention of Congress. Indeed, in the last mentioned example relating to arms exports to Panama, the briefing paper acknowledges that the Department did not issue licenses for private exports to Panama although by its own account the Department was at liberty to do so.

In this latter connection, the briefing paper implies but never expressly invokes the canon of statutory construction that congressional inaction may be construed as approving administrative interpretation even if unaccompanied by positive act such as reenactment of the law. The most important factor in the application of the canon seems to be congressional awareness of the interpretation when it revisits the same or related provisions. See, e.g., Zuber v. Allen, 396 U.S. 168 (1969), Bob Jones University v. United States, 461 U.S. 574 (1983). In the second of these cases the Court in finding acquiescence by Congress in administrative interpretation noted Congress' `prolonged and acute awareness of . . . [the controversial] issue.' 461 U.S. at 601. The reactions of Senator Pressler and other members to Secretary Baker's February 5, 1992 testimony regarding the reach of the Pressler Amendment seems to fall somewhat short of the described elements.

The briefing paper's third reason for concluding that arms exports pursuant to private sales are not covered by the Pressler Amendment is that when Congress desires to reach them it consistently uses language making clear that intention. The dozen or more statutory examples cited in support of the claim show little consistency, much less uniformity, in language used to achieve the
described result. See and compare the language of the Pressler Amendment with `sales of defense articles or services, extensions of credits (including participations in credits), and guaranties of loans under the Arms Export Control Act . . .' in section 502B(d)(2a)(B) of the FAA, 22 U.S.C.A. 2304, with `any license in effect with respect to the export of defense articles or defense services to or for the armed forces, police, intelligence, or other internal security forces of a foreign country under section 38 of the Arms Export Control Act . . .' in section 502B(d)(2)(C) of the FAA, 22 U.S.C.A. Sec. 2304, with `the export of which has been licensed or approved under section 38 of this Act . . .' in section 3(d)(3) of the AECA, 22 U.S.C.A. 2753(d)(3), with `[i]n the case of an application by a person (other than with regard to a sale under section 21 and 22 of this Act) for a license for the export of any major defense equipment sold under a contract . . .' in section 36(c)(1) of the AECA, 22 U.S.C.A. 2776(c)(1), with `[n]o letters of offer may be issued, no credits or guarantees may be extended, and no export licenses may be issued under this Act . . .' in section 6 of the AECA, 22 U.S.C.A. 2756, with `[e]xporting or otherwise providing (by sale, lease or loan, or other means), directly or indirectly, an munitions item . . .' in section 40(a)(1) of the AECA, 22 U.S.C.A. 2780(a)(1), with `[p]roviding any license or other approval under section 38 of this Act for any export or other transfer (including by means of a technical assistance agreement, manufacturing licensing agreement, or coproduction agreement) of any munitions item . . .' in section 40(a)(4) of the AECA, 22 U.S.C.A. 2780(a)(4), with `credits . . . and loans . . . guaranteed with respect to Argentina under the Arms Export Control Act, . . . and export licenses may be issued to or for the Government of Argentina under section 38 of the Arms Export Control Act . . .' in section 725 of the International Security and Development Cooperation Act of 1981, Public Law 97-113, 95 Stat. 1519 (1981), with `no sale of defense articles or services may be made under the Arms Export Control Act to Chile . . . no export licenses may be issued under section 38 of the Arms Export Control Act to or for the Government of Chile . . .' in section 726 of the International Security and Development Cooperation Act of 1981, ibid., with `[t]he United States Government shall not enter into any sale with Iraq under the Arms Export Control Act . . . [l]icenses shall not be issued for the export to Iraq of any time on the United States Munitions List' in section 586G, Iraq Sanctions Act of 1990, Public Law 101-513, 104 Stat. 1979 (1990), and with `[a]ll military assistance, all sales of defense articles and services (whether for cash or by credit, guaranty, or any other means), and all licenses with respect to the transportation of arms, ammunitions, and implements of war (including technical data relating thereto) to the Government of Turkey . . .' in section 620(x) of the FAA, 22 U.S.C.A. 2370(x). (Emphasis supplied.)

Whether the foregoing statutory sources support the briefing paper's contention that Congress has been consistent in reaching all arms exports, including private transactions, when that is the congressional goal, is a matter of conjecture. To get beyond conjecture and prove or disprove the claimed congressional consistency calls for an analysis of all relevant (not simply the listed) laws and their legislative histories, an enormous undertaking which ultimately might prove inconclusive insofar as a definitive resolution of the issue being considered is concerned. Assuming for the sake of argument the basic thrust of the briefing paper's conclusion in regard to its third point, one thing appears to be beyond controversy: Congress has not been consistent, much less uniform, in the manner or language it has used to accomplish unabridged coverage. Not only has Congress used different language in alleged pursuit of that goal, in the instance italicized in the immediately foregoing recital of laws, Congress has indicated that it understands the word `transfer' to cover the universe of arms exports, including licensed exports. As noted in connection with section 40(a)(4) of the AECA, 22 U.S.C.A. 2780(a)(4), the law states, in pertinent part `[p]roviding any license or other approval under section 38 of this Act for any export or other transfer . . . of any munitions item to a country . . ..' In brief, just as there are many roads leading to Rome, there appear to be many ways of covering the arms export waterfront including, among others, the Pressler Amendment's use of the words `assistance', `sales', and `transfers.'

The briefing paper's final comments regarding the supportive quality of the Pressler Amendment's legislative history do not require extended comment; in the main these consist of several general statements at best directed at the act of furnishing assistance to Pakistan, and generalized conclusions inferred from silence on the subjects of licenses, sales, and transfers. As indicated at the outset, the record surrounding the adoption of the Pressler Amendment seems inconclusive insofar as the issue under discussion is concerned. More persuasive, or so it would appear, are the noted instances of statutory and regulatory language that are in accord with the apparent common, every day practice of using the term `arms transfers' to describe all arms exports. Furthermore, the view of the Pressler Amendment espoused by the briefing paper does not advance the congressional non-proliferation purpose for the amendment but creates a glaring opening by which that purpose may be frustrated.
RAYMOND J. CELADA,

Senior Specialist in
American Public Law.

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[Page: S3954]

From the Los Angeles Times, Mar. 6, 1992

[FROM THE LOS ANGELES TIMES, MAR. 6, 1992]

Despite Ban, United States Arms Are Sold to Pakistan

(BY MURRAY WAAS AND DOUGLAS FRANTZ)

Despite a ban on military sales to Pakistan by the U.S. government, the Bush Administration has quietly permitted the Pakistani armed forces to buy American-made arms from commercial firms for the last year and a half, according to classified documents and Administration officials.

Among the military items licensed for sale to Pakistan are spare parts for American-made F-16 fighter planes, which form the nucleus of Islamabad's air force, Administration officials confirmed. The volume of sales could not be determined. But officials said the equipment is intended to help Pakistan maintain its current arsenal.

The Administration permitted the sales despite a 1985 federal law, which says that `no military equipment or technology shall be sold or transferred to Pakistan' unless the President certifies to Congress that `Pakistan does not possess a nuclear explosive device.'

The ban is part of an effort by Congress to curb the spread of nuclear weapons and to punish nations that actively support such development programs. Pakistan, which has admitted possessing the capability to build a nuclear bomb, is one of a handful of countries that has refused to sign the international Nuclear Non-Proliferation Treaty.

In Senate testimony in January, CIA Director Robert M. Gates described Pakistan's nuclear weapons program and its arms race with India as serious threats to peace and security in the region. Gates acknowledged that intelligence reports have indicated Pakistan is trying to equip its American-supplied F-16 fighters to deliver nuclear weapons.

In October, 1990, the Administration was unable to certify Pakistan's compliance with the law, and the arms ban passed by Congress took effect, freezing $570 million in U.S. military aid. Although the Administration cut off direct country-to-country arms sales at the time, it decided to allow continued private, commercial arms sales to Pakistan, according to documents and interviews.

The sales illustrate how the Administration has used private-sector transactions, looser regulations governing `dual-use' equipment and other methods to get sensitive technology to nations supposedly on embargo lists. Before the Persian Gulf War fractured U.S.-Iraqi relations, Iraq obtained an assortment of valuable U.S. defense equipment through private transactions and
export loopholes.

Key members of Congress said they did not learn of the commercial sales to Pakistan until last month. Some said that they believe the sales violate the law.

The first public acknowledgment of the policy came Feb. 5 when Secretary of State James A. Baker III described it to the Foreign Relations Committee in response to a question from Sen. Larry Pressler (R-S.D.). Pressler sponsored the restrictive amendment in 1985 and said that he had heard rumors of commercial arms sales to Pakistan.

`We have carefully reviewed the amendment, we've reviewed the legislative history and as a legal matter, we do not believe it applies to commercial sales or exports controlled by the Department of Commerce,' Baker testified. `And so we look at munitions and spare parts that are necessary to maintain the Pakistani military at current levels on a case-by-case basis. Commercial sales are limited, and in our view none are being approved that would contravene either the letter or spirit of the law.'

Taking issue with Baker, Pressler said: `Now the amendment . . . did include the language `no military equipment or technology shall be sold or transferred to Pakistan.' . . . That's fairly hard to argue with.'

Baker responded that State Department lawyers concluded that the law does not restrict commercial arms sales to Pakistan.

Several members of Congress who were involved in the fight for passage of the Pressler amendment in August, 1985, as well as others who sit on committees that oversee U.S. foreign policy in South Asia, said they believe that the Administration policy may violate the law. They also said that the sales were kept secret from them until recently.

Sen. John Glenn (D-Ohio), chairman of the Senate Government Affairs Committee, said in an interview that he considers the Administration's actions to be potential violations. He also said he was unaware that the sales had been allowed since October, 1990, until told of them by a reporter.

`Their efforts to bypass and thwart the law of the land are now very clear,' said Glenn. `They knew what the intent of the law was. The legislative history is very clear. And it should be their intent or purpose to abide by what we all knew was the intent of the law. It (the 1985 amendment) was signed by the President into law. And then his Administration took steps to not comply with it.'

Peter Galbraith, a senior staff member of the Senate Foreign Relations Committee, said the Administration's policy `is a direct violation of both the spirit and letter of the law. . . . The law is very clear. It prohibits all arms transactions of any type to Pakistan unless the President certifies Pakistan does not possess a nuclear weapon.'

An Administration official said the decision to allow commercial military sales to Pakistan was first made Oct. 1, 1990, when the President refused to certify that Pakistan was not trying to develop an atomic weapon. Several members of Congress said that, when Baker revealed the policy last month, they thought it had been implemented only recently and did not suspect that the commercial sales had been permitted for nearly 18 months.

An Administration official said Pakistan is allowed to buy spare
parts and other items on a munitions list to maintain its military. A classified document describing the policy sets out similar guidelines. The official, who asked that his name be withheld, said that a ban on all sales would have severely damaged U.S.-Pakistani relations.

Leonard Spector, senior associate of the Carnegie Endowment for International Peace, said that an outright ban would have put severe pressure on the Pakistanis, posing the prospect of their `losing their ability to fly their F-16s from want of spare parts. Clearly the Bush Administration did not see the need to continue that type of pressure.'

According to the Administration official, selected members of congressional staffs were told about the private sales on an informal basis, if they inquired. The official declined to name the staffers who were told of the policy, saying he wanted to protect their privacy.

On Feb. 7, two days after Baker's Senate testimony, Pakistani Foreign Secretary Shahryar Khan acknowledged publicly for the first time that his country had the capacity to build an atomic bomb. Khan told a gathering at the United Nations: `There was a capability in 1989 when the present government came to power and that means we could have moved forward in an unwise position. But we didn't. Instead we froze the program.'

Despite its ability to do so, Khan asserted that Pakistan would not take the final steps to build or deploy nuclear weapons. He said that the freeze is part of an effort to obtain new American aid and also to lead Congress to do away with the Pressler amendment restrictions.

During the same trip, Khan also stressed that his government would not `reverse' its nuclear capability unless the United States obtains commitments from India to do the same. The two nations have fought three wars since they gained independence in 1947 and occasionally exchange artillery fire.

Although it was widely known for years that Pakistan was engaging in a massive, covert effort to build atomic weapons, the Reagan and Bush administrations were reluctant to take strict measures against Pakistan because of its assistance to U.S. efforts to arm the Afghan rebels, who were fighting Soviet troops in Afghanistan.

Justification for the leniency began to dissolve after Soviet troops withdrew from Afghanistan in 1989.

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[Page: S3955]

From the Washington Post, Mar. 7, 1992

[FROM THE WASHINGTON POST, MAR. 7, 1992]

Shipments to Pakistan Questioned; Commercial Sales of War Materiel May Break U.S. Law

(BY STEVE COLL AND DAVID HOFFMAN)

A senior Bush administration official said today that the United States issued licenses for more than $100 million in commercial sales of military equipment to Pakistan in 1990 and 1991, actions that some in Congress charge may violate a law blocking aid to Pakistan as long as that country continues its nuclear weapons program.

Congressional officials said they learned of the sales this year when the State Department's own inspector general's office inquired about them as part of an investigation into whether the sales were illegal.

`Many in the State Department are aware that commercial sales to Pakistan do violate the law,' said Sen. Claiborne Pell (D-R.I.), chairman of the Senate Foreign Relations Committee. `The State Department's own investigators believed that commercial sales violate the plain meaning' of the law.

The Bush administration stopped most military and economic aid to Pakistan in October 1990 under the provisions of the Pressler Amendment, which states that `no assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan' as long as it possesses a nuclear bomb or a bomb's essential components.

The aid cutoff has crimped Pakistan's influential military, depriving it among other things of dozens of F-16 fighter jets on order, and has sent Pakistani generals scrambling to locate spare parts for their jets, helicopters, tanks and other U.S.-supplied equipment.

But administration officials said that after announcing the aid cutoff, the State Department assisted the Pakistani military by continuing to grant licenses for commercial sales of military equipment, such as spare parts, because the department's lawyers interpret the Pressler ban as applying only to government-financed aid.

A senior administration official said that in fiscal 1991, which began on Oct. 1, 1990, the department authorized `not much over' $100 million in such commercial sales, an amount somewhat below their authorizations in previous years when the aid ban did not apply.

State Department officials defended their decision to authorize the commercial military sales, saying that such transactions had been permitted in similar circumstances in the past, they they were necessary to maintain stable relations with a longtime U.S. ally that has a large Muslim population, and that they had not
significantly enhanced Pakistani military capabilities.

`The department has issued licenses for commercial military exports based on a case-by-case review and only for items to support equipment already in the Pakistani inventory,' said State Department spokesman Margaret Tutwiler. `The department has not licensed the export of the new military equipment, new technology or upgrades to equipment in the Pakistani inventory.'

Some congressional officials involved in drafting and monitoring the Pressler Amendment expressed anger over the administration's actions and said they intended to hold hearings to determine whether the administration acted legally.

Last week, following inquiries about the issue from Congress, the State Department sent an unsigned memorandum defending its position to Senator Larry Pressler (R-S.D.), the author of the Pressler Amendment. The memo cited legal cases supporting the department's interpretation of the amendment and said the administration had complied with all of the requirements of U.S. law while authorizing the commercial sales.

Pressler today described the State Department memo as a `political science paper' that was `unacceptable to me.' He said he believes the law he sponsored `bans the sale of private arms. On the face of it the language is clear.'

The administration has so far declined to disclose exactly what items it authorized for sale to Pakistan. Some congressional officials said that if the administration approved large-scale shipments of spare parts for top-of-the-line Pakistani aircraft such as the F-16 and the Cobra attack helicopter, then it clearly violated the spirit of the Pressler Amendment. The law, they said, was intended to ensure that the United States would not support Pakistan's military and economy as long as the country pursued a nuclear weapons capability.

Not all of the items licensed for sale by the State Department in fiscal 1991 have been shipped to Pakistan because licenses granted by the department are valid for up to three years, officials said. In its annual budget request for military aid to foreign countries, the department told Congress earlier this year that $22.7 million in commercial military exports had been delivered to Pakistan in fiscal 1991.

In that same request, the department estimated that as much as $1.2 billion in commercial military exports might be delivered to Pakistan in fiscal 1992 and 1993. But some congressional officials said they believed that the figure was highly inflated because of a law that requires the department to estimate each year how much military equipment a given country might need in the most extreme circumstances. In the past, these congressional sources said, actual exports have been 20 percent or less of the estimates.

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[Page: S3956]

From the Los Angeles Times, Mar. 7, 1992

[FROM THE LOS ANGELES TIMES, MAR. 7, 1992]

United States Knew Arms Sales Broke Law, Pell Charges

(BY MURRAY WAAS AND DOUGLAS FRANTZ)

In unusually strong language, the chairman of the Senate Foreign Relations Committee charged Friday that the State Department has knowingly violated federal law by permitting commercial sales of arms to Pakistan.

`Many in the State Department are aware that commercial sales to Pakistan do violate the law,' said Sen. Claiborne Pell (D-R.I.), a co-sponsor of the 1985 law that bars sales of military equipment to Pakistan while that nation is developing nuclear weapons.

Pell was responding to a story in the Times on Friday. The report disclosed that the Bush Administration had permitted Pakistan to buy spare parts for American-supplied F-16 fighter planes and other arms from U.S. firms vital to keeping its military operating.

Sources said the United States had issued munitions licenses for about $100 million in military equipment to Pakistan in 1990 and 1991.

According to Pell, the Foreign Relations Committee learned only recently of the commercial sales policy. The disclosure came after a department employee alerted the State Department inspector general's office and the office opened an investigation, Pell said.

So far, Pell and other angry lawmakers have not indicated what they plan to do in response to disclosure of the sales. On Thursday, another powerful committee chairman, Sen. John Glenn (D-Ohio), said he, too, believes that the sales violate the law. A Foreign Relations Committee staff member said the panel will demand strict enforcement of the law.

Margaret Tutwiler, chief spokeswoman for Secretary of State James A. Baker III, told reporters Friday that the arms sales to Pakistan do not break the law because they are conducted by commercial firms. She repeated Baker's contention that the law covers only direct sales by the U.S. government.

But Pell and other lawmakers challenged that interpretation of the law, called the Pressler amendment for its chief sponsor, Sen. Larry Pressler (R-S.D.). `To permit Pakistan to purchase spare parts for its existing American-supplied arsenal and to make commercial purchases in the U.S. defeats totally the non-proliferation goals of the Pressler amendment and would appear to be a blatant violation of the law,' Pell said.

In testimony before Pell's committee last month, Baker acknowledged that commercial arms sales are being allowed. He asserted, however, that State Department lawyers had determined that they do not violate the amendment.

But Pell said other State Department officials believe the sales are illegal. `The committee, which was never informed of the commercial sales, learned of them from the State Department's own inspector general's office * * *,' he said. `The State Department's own investigators believed that commercial sales violate the plain meaning of the Pressler amendment.'

The law, passed in 1985, says that `no military equipment or technology shall be sold or transferred to Pakistan' unless the President certifies to Congress that `Pakistan does not possess a nuclear explosive device.' It was intended to slow nuclear proliferation.

In October, 1990, President Bush told Congress he was unable to certify that Pakistan was not developing a nuclear weapon and the arms ban went into effect. But the State Department continued to permit U.S. firms to sell arms and technology to Pakistan so it could maintain its existing arsenal.

Pell, who sponsored a predecessor to the Pressler amendment, said: `The broad language of both amendments was specifically designed to cover commercial sales. The policy reason for the Pressler amendment was to make Pakistan choose between a sophisticated conventional military capability and a nuclear capability.'

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From the New York Times, Mar. 8, 1992

[FROM THE NEW YORK TIMES, MAR. 8, 1992]

Senators Seek Full Cutoff of Arms to Pakistan

(BY STEVEN GREENHOUSE)

Washington, March 7: Senators of both parties said today that they were pressing the Bush Administration to stop all private arms sales to the Pakistani Government, arguing that the practice violates a law barring American military aid there because of Pakistan's nuclear weapons program.

Adminstration officials assert that the cutoff applies only to government-sponsored arms sales and not so-called commercial sales by companies that are licensed by the State Department.

But Senator Larry Pressler, Republican of South Dakota, who sponsored the arms cutoff, said today that the legislation `was intended to turn off private arms sales to Pakistan as well.'

Senator John Glenn, Democrat of Ohio and chairman of the Government Affairs Committee, said: `I think it flies in the face of everything we try to do with regard to Pakistan. They know the intent of that law just as well as anybody else.'

Aid has been suspended since the autumn of 1990 under the arms cutoff law, which says that if the Administration cannot certify to Congress that Pakistan's nuclear program is for peaceful uses, all military assistance must be halted and no new economic help sent beyond what is on the way.

The arms sales were publicized in Senate hearings early last month. Soon after, in a gesture to Washington, a ranking Pakistani foreign affairs official, Shahrya M. Khan acknowledged that his country had the ability to make nuclear weapons. This confirmed what American intelligence had already indicated.

INSISTS ON LEGAL OPINION

Mr. Pressler said the State Department had not complied with his request for a memorandum explaining why the commercial arms sales are legal under the cutoff legislation, which is known as the Pressler Amendment.

`If they can't produce a legal opinion signed by their legal adviser, then they can't do it and they shouldn't be doing it,' he said in a telephone interview.

The State Department spokeswoman, Margaret D. Tutwiler, said at a briefing Friday that what she called commercial exports of spare parts and maintenance items were continuing.

The Washington Post said in an article today that an Administration official acknowledged that the United States had issued licenses for more than $100 million in military-equipment sales to Pakistan in 1990 and 1991. The article followed a report on the sales Friday in The Los Angeles Times. The arms sales reportedly include spare parts for Pakistan's F-16 fighters and other American-made arms.

The Pressler Amendment, adopted in 1985, says that as long as the Islamabad Government has a nuclear bomb or a bomb's main components, `no assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan.'

* * * At that time, the United States was willing to take a tougher stance toward Pakistan because Soviet troops had left Afghanistan and Pakistan's aid to the rebels fighting the Soviet-backed Afghan Government had become less important.

RIVALS AT INGRATIATION

The Pressler Amendment leaves Islamabad in a difficult situation because of military tension with India and because the two old adversaries are vying to be friends of Washington.

Senator Claiborne Pell, Democrat of Rhode Island and chairman of the Foreign Relations Committee, said in an interview today that permitting the sale `certainly goes against the spirit of the Pressler Amendment.' He added that `if the majority of the Congress is as concerned as I am, some strong actions might be taken.'

Senator Pressler said he had asked Secretary Baker in the hearings last month to provide him with the legal basis for the commercial sales. He said that the State Department gave him a document on Friday that he considered inadequate. `It just makes some arguments,' he said. `No one signed it. What we're looking for is something signed by a legal adviser, stating the legal authority for what they're doing.'

Miss Tutwiler said the department believed that commercial sales were not covered by the amendment.

Senator Glenn said the State Department's position provided scant incentive for developing nations to abide by the Nuclear Nonproliferation Treaty, which Pakistan has refused to sign.

`They play little word games, but while they're doing that, this nuclear proliferation goes on with no penalty,' Mr. Glenn said today. `Nations will ask why should they stay aboard with the nonproliferation treaty when nations that are transgressors in building nuclear weapons get favored treatment.'

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From the Chicago Sun-Times, Mar. 8, 1992

[FROM THE CHICAGO SUN-TIMES, MAR. 8, 1992]

Sales to Pakistan Seen Skirting Law

(BY STEVE COLL AND DAVID HOFFMAN)

Washington: A senior Bush administration official said Friday the United States issued licenses for more than $100 million in commercial sales of military equipment to Pakistan in 1990 and 1991, actions that some in Congress charge may violate a law blocking aid to Pakistan, a country that maintains a nuclear weapons program.

Congressional officials said they learned of the sales this year when the State Department's own inspector general's office inquired about them as part of an investigation into whether the sales were illegal.

`Many in the State Department are aware that commercial sales to Pakistan do violate the law,' said Sen. Claiborne Pell (D-R.I.), chairman of the Senate Foreign Relations Committee.

The Bush administration stopped most military and economic aid to Pakistan in October, 1990, under the provisions of the Pressler Amendment, which bans assistance of the transfer of equipment and technology to Pakistan as long as it possesses a nuclear bomb or a bomb's essential components.

The aid cutoff has crimped Pakistan's military, depriving it among other things of dozens of F-16 fighter jets on order, and has sent Pakistani generals scrambling to locate spare parts for U.S.-supplied equipment.

But administration officials said, after announcing the aid cutoff, the State Department assisted the Pakistani military by continuing to grant licenses for commercial sales of military equipment, such as spare parts, because the department's lawyers interpret the Pressler ban as applying to government-financed aid.

A senior administration official said that, in fiscal 1991, which began Oct. 1, 1990, the department authorized `not much over' $100 million in commercial sales, an amount somewhat below their authorizations in previous years when the aid ban did not apply.

State Department officials defended their decision to authorize the commercial military sales, saying that such transactions had been permitted in similar circumstances in the past, that they were necessary to maintain stable relations with a longtime U.S. ally that has a large Muslim population, and that they had not significantly enhanced Pakistani military capabilities.

Some congressional officials involved in drafting and monitoring the Pressler Amendment expressed anger over the administration's actions and said they intended to hold hearings to determine whether the administration acted legally.

Last week, following inquiries about the issue from Congress, the State Department sent an unsigned memorandum defending its position to Sen. Larry Pressler (R-S.D.), the author of the Pressler Amendment. The memo cited legal cases supporting that interpretation of the amendment and said the administration had complied with U.S. law.

Pressler described the memo as a `political science paper' that was `unacceptable to me.' He said he believes the law he sponsored `bans the sale of private arms.'

The administration has so far declined to disclose exactly what items it authorized for sale to Pakistan. Some congressional officials said that if the administration approved large-scale shipments of spare parts for top-line Pakistani aircraft such as the F-16 and the Cobra attack helicopter, it clearly violated the spirit of the Pressler Amendment.

Not all of the items licensed for sale in fiscal 1991 have been shipped to Pakistan, officials said. The department told Congress earlier this year that $22.7 million in commercial military exports had been delivered to Pakistan.

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[Page: S3957]

From the Orange County Register, Mar. 8, 1992

[FROM THE ORANGE COUNTY REGISTER, MAR. 8, 1992]

Total Arms Cutoff to Pakistan Sought

Senators of both parties said Saturday that they were pressing the Bush administration to stop all private arms sales to the Pakistani government, arguing that the practice violates a law barring U.S. military aid there because of Pakistan's nuclear weapons program.

Administration officials assert that the cutoff applies only to government-sponsored arms sales and not so-called commercial sales by companies that are licensed by the State Department.

But Senator Larry Pressler, R-SD, who sponsored the arms cutoff, said Saturday that the legislation `was intended to turn off private arms sales to Pakistan as well.'

Senator John Glenn, D-Ohio, chairman of the Government Affairs Committee, said: `I think it flies in the face of everything we try to do with regard to Pakistan.' They know the intent of that law just as well as anybody else.'

Aid has been suspended since fall 1990 under the arms cutoff law, which says that if the administration cannot certify to Congress that Pakistan's nuclear program is for peaceful uses, all military assistance must be halted and no new economic help sent beyond what is on the way.

The arms sales were publicized in Senate hearings early last month. Soon after, in a gesture to Washington, a ranking Pakistani foreign affairs official, Shahrya M. Khan acknowledged that his country had the ability to make nuclear weapons. This confirmed what US intelligence had already indicated.

Pressler said the State Department had not complied with his request for a memorandum explaining why the commercial arms sales are legal under the cutoff legislation, which is known as the Pressler amendment.

`If they can't produce a legal opinion signed by their legal adviser, then they can't do it and they shouldn't be doing it,' he said.

State Department spokesman Margaret D. Tutwiler said at a briefing Friday that what she called commercial exports of spare parts and maintenance items were continuing.

The Washington Post said in an article Saturday that an administration official acknowledged that the United States had issued licenses for more than $100 million in military-equipment sales to Pakistan in 1990 and 1991. The article came after a report on the sales on Friday in the Los Angeles Times. The arms sales reportedly include spare parts for Pakistan's F-16 fighters and other US-made arms.

The Pressler amendment, adopted in 1985, says that as long as the Islamabad government has a nuclear bomb or a bomb's main components, `No assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan.'

In October 1990, the Bush administration for the first time refused to certify that Pakistan did not have a nuclear bomb. At that time, the United States was willing to take a tougher stance toward Pakistan because Soviet troops had left Afghanistan and Pakistan's aid to the rebels fighting the Soviet-backed Afghan government had became less important.

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From the Austin American-Statesman, Mar. 8, 1992

[FROM THE AUSTIN AMERICAN-STATESMAN, MAR. 8, 1992]

Senators Push White House To Halt Private Weapons Sales to Pakistan

Washington: Senators of both major parties said on Saturday that they were pressing the Bush administration to stop all private arms sales to the Pakistani government, arguing that the practice violates a law barring American military aid there because of Pakistan's nuclear weapons program.

Administration officials assert that the cutoff applies only to government-sponsored arms sales, not so-called commercial sales. Such arms sales were publicized in Senate hearings early last month.

But Senator Larry Pressler, R-S.D., who sponsored the arms cutoff legislation, said Saturday that the law `was intended to turn off private arms sales to Pakistan as well.'

Senator John Glenn, D-Ohio, chairman of the Government Affairs Committee, said: `I think it flies in the face of everything we try to do with regard to Pakistan. They know the intent of that law just as well as anybody else.'

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From the Houston Chronicle, Mar. 8, 1992

[FROM THE HOUSTON CHRONICLE, MAR. 8, 1992]

Military Shipments to Pakistan Raising Questions in Congress

(BY STEVE COLL AND DAVID HOFFMAN)

Washington: A senior Bush administration official has confirmed that the United States issued licenses for more than $100 million in commercial sales of military equipment to Pakistan in 1990 and 1991, actions that some in Congress charge may violate a law blocking aid to Pakistan as long as that country continues its nuclear weapons program.

Congressional officials said they learned of the sales this year when the State Department's own inspector general's office inquired about them as part of an investigation into whether the sales were illegal.

`Many in the State Department are aware that commercial sales to Pakistan do violate the law,' said Senator Claiborne Pell, D-R.I., chairman of the Senate Foreign Relations Committee. `The State Department's own investigators believed that commercial sales violate the plain meaning' of the law.

The Bush administration stopped most military and economic aid to Pakistan in October 1990 under the provisions of the Pressler Amendment, which states that `no assistance shall be furnished to Pakistan and no military equipment or technology shall be sold or transferred to Pakistan' as long as it possesses a nuclear bomb or a bomb's essential components.

The aid cutoff has crimped Pakistan's influential military, depriving it among other things of dozens of F-16 fighter jets on order, and has set Pakistani generals scrambling to locate spare parts for their jets, helicopters, tanks and other U.S.-supplied equipment.

But administration officials said that after announcing the aid cutoff, the State Department assisted the Pakistani military by continuing to grant licenses for commercial sales of military equipment, such as spare parts, because the department's lawyers interpret the Pressler ban as applying only to government-financed aid.

A senior administration official said that in fiscal 1991, which began on Oct. 1, 1990, the department authorized `not much over' $100 million in such commercial sales, an amount somewhat below their authorizations in previous years when the aid ban did not apply.

State Department officials defended their decision to authorize the commercial military sales, saying that such transactions had been permitted in similar circumstances in the past, that they were necessary to maintain stable relations with a longtime U.S. ally that has a large Muslim population, and that
they had not significantly enhanced Pakistani military capabilities.

`The department has issued licenses for commercial military exports based on a case-by-case review and only for items to support equipment already in the Pakistani inventory,' said department spokeswoman Margaret Tutwiler. `The department has not licensed the export of new military equipment, new technology or upgrades to equipment in the Pakistani inventory.'

Some congressional officials involved in drafting and monitoring the Pressler Amendment expressed anger over the administration's actions and said they intended to hold hearings to determine whether the administration acted legally.

Last week, following inquiries about the issue from Congress, the State Department sent an unsigned memorandum defending its position to Sen. Larry Pressler, R-S.D., author of the Pressler Amendment. The memo cited legal cases supporting State's interpretation of the amendment and said the administration had complied with all of the requirements of U.S. law while authorizing the commercial sales.

Pressler described the State memo as a `political science paper' that was `unacceptable to me.' He said he believes the law he sponsored `bans the sale of private arms. On the face of it the language is clear.'

The administration has so far declined to disclose exactly what items it authorized for sale to Pakistan. Some congressional officials said that if the authorization approved large-scale shipments of spare parts for top-line Pakistani aircraft like the F-16 and the Cobra attack helicopter, then it clearly violated the spirit of the Pressler Amendment, which they said was intended to ensure that the United States would not support Pakistan's military and economy as long as the country pursued a nuclear weapons capability.

Not all of the items licensed for sale by the State Department in fiscal 1991 have been shipped to Pakistan because licenses granted by State are valid for up to three years, officials said. In its annual budget request for military aid to foreign countries, the department told Congress earlier this year that $22.7 million in commercial military exports had been delivered to Pakistan in fiscal 1991.

In that same request, the department estimated that as much as $1.2 billion in commercial military exports might be delivered to Pakistan in fiscal 1992 and 1993. But some congressional officials said they believed that the figure was highly inflated because of a law that requires State to estimate each year how much military equipment a given country might need in the most extreme circumstances. In the past, these congressional sources said, actual exports have been 20 percent or less of State's estimates.

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