Biden Administration Requires Compliance Assurances From Foreign Governments Receiving U.S. Defense Articles

On February 8, the White House released the National Security Memorandum on Safeguards and Accountability With Respect to Transferred Defense Articles and Defense Services (NSM-20), which highlights the Biden administration’s focus on arms transfers to U.S. allies and how such weapons are to be used. Among other things, NSM-20 requires the U.S. Secretary of State to “obtain credible and reliable written assurances” from foreign governments that U.S. defense articles and defense services to be supplied are used in accordance with international and humanitarian law.

This assurance requirement applies to defense articles supplied for and paid through congressional appropriations under their respective security assistance and security cooperation authorities, including with Foreign Military Financing and Ukraine Security Assistance Initiative funds. The requirement also can apply to defense services as determined by the Secretary of State or the Secretary of Defense.

NSM-20 does not apply to most transfers under Direct Commercial Sales administered by the Department of State’s Directorate of Defense Trade Controls (DDTC). Any application to Direct Commercial Sales in support of the programs outlined above, or as expanded to cover defense services, likely will be provided through further administrative guidance or licensing provisos issued by DDTC. For those Direct Commercial Sales transfers subject to the new restrictions, other governments now will be required to assure the U.S. government that they will facilitate (and not deny, restrict, or otherwise impede) U.S. humanitarian assistance or U.S.-supported international efforts to provide such assistance.

NSM-20’s requirements apply prospectively. By March 2, the Secretary of State must obtain required assurances from foreign governments engaged in active armed conflict using U.S. defense articles. Assurances from foreign governments not actively engaged in an armed conflict must be obtained by October 17. If not obtained in time, the U.S. will suspend transfers of defense articles until such assurances are obtained.

NSM-20 also outlines certain congressional reporting requirements, which must include “any new assurances obtained since [a] prior report” and “an assessment of any credible reports or allegations” of U.S. defense articles being used to commit human rights abuses. The Secretary of State must also report to Congress any instances where U.S. defense articles were not received by the foreign government that was the intended recipient or were not used for their intended purposes.

NSM-20 does not apply to (1) air defense systems; (2) other defense articles or defense services that are intended to be used for strictly defensive purposes or are exclusively for non-lethal purposes other than in armed conflict; (3) defense articles or defense services that are non-lethal in nature; or (4) transfers strictly for the operational needs of the Department of Defense.

For any questions about NSM-20 or other national security issues, please contact the authors or any of their colleagues in Arnold & Porter’s National Security practice group.

© Arnold & Porter Kaye Scholer LLP 2024 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.