Eligibility and Scope of Sale · 3 of 3
The chapter that sets out what cannot be bought opens by saying that most of it can, with permission. "Certain items may be transferred using Foreign Military Sales (FMS) procedures only by exception", and the categories that follow "may not be included in Letters of Offer and Acceptance (LOAs) without special staffing or approvals as noted below" (SAMM C4.5).
That framing matters. Only a short list is genuinely closed. The rest is a set of approval gates, and knowing which is which decides whether a requirement is worth pursuing or should be dropped from a request before it delays everything behind it.
The largest category of refusals has nothing to do with weapons. "The USG does not serve as the disbursing agent for funds received under LOAs for commercial services or items directly obtained by foreign government or FMS purchaser authorized officials" (SAMM C4.5.1).
What that excludes is spelled out. "LOA funds are not available to pay for commercial transportation, commercial lodging, per diem, or other administrative expenses obtained by foreign government or FMS purchaser authorized officials even though such expenses may be indirectly related to FMS support" (SAMM C4.5.1). Vehicle hire is named separately: "Foreign purchasers may not use LOAs to lease commercial or General Services Administration (GSA) vehicles" (SAMM C4.5.1).
The limitation is narrower than it first reads. It "does not apply to the use of LOA funds required for defense articles and defense services provided by DoD, another federal agency, or through a DoD procurement contract" (SAMM C4.5.1). The bar is on acting as a paying agent for a partner's own commercial arrangements, not on buying things.
Two exceptions exist. The first covers students: a case funding American training may include travel and living allowance, hired transport where military transport is unavailable, and unexpected commercial healthcare costs (SAMM C4.5.1.1.1). The second covers a dedicated foreign training detachment on an American installation, where the partner trains its own people, and can extend to medical, travel, lodging and vehicle services and per diem (SAMM C4.5.1.1.2).
Where disbursing support is permitted it is capped. The services and per diem sit on a dedicated line "that is limited to 10 percent of the current total case value", and the work of administering the payments must itself be funded by the case (SAMM C4.5.1.2).
Four munitions categories carry restrictions of very different strength, and they are often lumped together as though they were the same.
Cluster munitions are conditional rather than barred. Nothing may be furnished, licensed, sold or transferred unless the submunitions have "a 99 percent or higher functioning rate" and the agreement specifies that they "will only be used against clearly defined military targets and will not be used where civilians are known to be present" (SAMM C4.5.2). The definition reaches components, parts, firmware, software and related technical data. One carve-out survives: "This restriction does not apply to technology used to clear or disarm unexploded cluster munitions" (SAMM C4.5.2).
Anti-personnel landmines are governed by a conversation rule rather than a transfer rule. American personnel "must get specific approval from DSCA (Office of International Operations, Weapons Directorate (IOPS/WPN)) prior to any discussions on landmines with any potential purchaser" (SAMM C4.5.3). The gate closes before the subject is raised at all.
Napalm is the flattest prohibition in the chapter. "Napalm, including napalm thickener, dispensers, and fuses, will not be provided through FMS or commercial contracts" (SAMM C4.5.4). Both routes are closed, which is unusual.
Riot control agents are closed on one route only. "Riot control agents will not be provided via FMS, but certain types are available on a commercial basis", subject to an export license from the state department (SAMM C4.5.5).
Combat clothing sounds like the easiest thing on any list and is not. "U.S. combat military uniforms may be eligible for sale or transfer to foreign countries via FMS", but three conditions apply at once (SAMM C4.5.6).
"Each type of uniform must be designated as excess by the U.S. Armed Forces (U.S. military and U.S. Coast Guard), must no longer be actively used by the U.S. Armed Forces or Reserves, and cannot contain Identification Friend or Foe (IFF) technology" (SAMM C4.5.6). A current-issue pattern is therefore unavailable, and an eligible list is held centrally.
The training restrictions are frequently described as three prohibitions. Two are approval requirements and one is statutory.
Counterterrorism training runs through a different door rather than a closed one. It "may be requested through the Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict (ASD (SO/LIC))" under a named fellowship program, with candidates vetted exactly as for any other training (SAMM C4.5.7.1).
Intelligence training is available but narrow. "Limited military intelligence training is available. The scope of this type of training is limited to training that is directly related to combat or operational intelligence, or to intelligence management of combat or operational intelligence at the joint military staff level" (SAMM C4.5.7.2).
Police training is the real bar, and it comes from a different statute than most people assume. "The Arms Export Control Act (AECA) does not prohibit police training or related programs; however, subject to certain exceptions, the Foreign Assistance Act (FAA), section 660 (22 U.S.C. 2420), generally prohibits use of funds available to carry out the FAA for police training" (SAMM C4.5.7.3).
The test is behavioral, and it is the part that catches ministries out. The prohibition "includes military police as well as civilian police if the military police perform on-going civilian law enforcement functions", and the label on the unit settles nothing: "The determining factor is the nature of the functions performed by the unit" (SAMM C4.5.7.3.2). Assistance for any civilian law enforcement function is prohibited, with maritime law enforcement and international narcotics control excepted.
The same logic produces the exceptions. "The prohibitions discussed above do not apply to units with the sole function of internal security that involves combat operations against insurgents, or legitimate self-defense of national territory against foreign invasion, whether or not the unit is called police" (SAMM C4.5.7.3.3).
It also cuts finely. Sometimes personnel from a smaller unit inside a larger eligible unit are detailed to civilian law enforcement. In that case "just the smaller unit is prohibited from receiving grant support", while no grant funds at all may be used for internal intelligence or surveillance on behalf of a foreign government (SAMM C4.5.7.3.4).
Where military police training is authorized, an undertaking follows the student home. "If foreign students are authorized to attend military police training, foreign governments must certify that the students are not involved in any civilian law enforcement functions for at least two years after receiving the training" (SAMM C4.5.7.3.5). Who may be trained under the grant program is set out in who may be trained under IMET.
| Disbursing agent | The role the government declines: paying a partner's own commercial bills. SAMM C4.5.1. |
|---|---|
| 99 percent rate | The submunition functioning rate below which cluster munitions may not move. |
| Section 660 | The Foreign Assistance Act provision that bars funding police training. |
| Function test | The rule that a unit's actual duties, not its name, decide whether it is police. |
| Two year certification | The undertaking required after authorized military police training. |
Every statement above links to the document behind it. The full source list for this piece is on the sources page.
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