Earlier this month, U.S. Sens. Chris Murphy (D-Conn.) and Mike Lee (R-Utah) introduced S.Res.109, a simple resolution that invokes Section 502B(c) of the Foreign Assistance Act (22 U.S.C. § 2304(c)) to request a report on the government of Saudi Arabia’s human rights practices.
During his presidential campaign, President Biden and his advisors repeatedly pledged to review the U.S.-Saudi relationship and hold the Saudi government accountable for abuses ranging from the brutal killing of Jamal Khashoggi to “murdering children and murdering innocent people” in Yemen. In October 2022, the Biden administration again promised to “re-evaluate” U.S. ties with Saudi Arabia amid the Kingdom’s oil production cuts. Nearly six months later, Sen. Murphy says that the administration has still not followed through on that commitment. Sen. Murphy describes S.Res.109 as a way to “set in motion a process that will allow Congress to debate the deteriorating human rights record of Saudi Arabia and how that should impact U.S. policy going forward.” Section 502B(c) offers a particularly effective mechanism for doing so.
Section 502B originated as a major legislative outcome of human rights oversight efforts on Capitol Hill in the wake of Watergate and the Vietnam War, but Congress has underutilized the oversight tool in recent decades. Section 502B is perhaps best known for the Country Reports on Human Rights Practices, mandated in Section 502B(b), but its complementary targeted reporting mechanism and joint resolution of disapproval in Section 502B(c) are far less understood. If the Murphy-Lee resolution passes, it will mark the first time that Congress has requested a report under Section 502B(c) since 1976.
The revival of Section 502B is long overdue. The statute fills gaps in other, more familiar oversight and reporting mechanisms and offers more flexibility than alternatives. It also provides expedited pathways to votes on the Senate floor, making it a potent tool to accelerate congressional action regarding support to partners with particularly concerning human rights records.
How Section 502B Works
Section 502B has two main parts: a binding prohibition and a congressional enforcement mechanism. The latter creates the framework for S.Res.109. (For a simplified explanation of how the Section 502B(c) process functions, see the Center for Civilians in Conflict’s explainer on the topic.)
The central prohibition of Section 502B(a) bans the provision of U.S. security assistance “to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights.” Section 502B defines gross violations of internationally recognized human rights, and the same definition applies for the purpose of the Leahy Law. Based on the Section 502B definition the State Department classifies “torture, extrajudicial killing, enforced disappearance, and rape under color of law” as gross violations of human rights in the context of Leahy vetting. However, Section 502B(d) includes “other flagrant denial of the right to life, liberty, or the security of person” as a gross violation of human rights. A 2017 expert opinion commissioned by the ABA Center for Human Rights argued that, in the context of U.S. arms sales to Saudi Arabia, “other flagrant denial of the right to life, liberty, or the security of person” should “encompass serious violations of international humanitarian law resulting in the loss of civilian life.”
Section 502B defines security assistance broadly to include arms sales, whether by private companies or the U.S. government itself, among other types of security cooperation. Although the executive branch has interpreted Section 502B’s central prohibition narrowly and sometimes resisted implementing it, administrations have reportedly cut off security assistance to certain countries, most recently Ethiopia, on the basis of Section 502B. However, public justifications for such cut-offs – or a lack thereof – referencing Section 502B are exceedingly rare.
S.Res.109 invokes Section 502B(c)’s congressional oversight mechanism,which complements Section 502B(a)’s binding prohibition. The first step of the 502B(c) oversight mechanism involves Congress requesting a report on human rights conditions in a target country. The report includes a standardized set of requirements related to human rights and U.S. policy justifications for continued arms sales and security assistance. Resolutions may also request “such other information as such committee or such House may request,” as the Murphy-Lee resolution does around end-use monitoring of U.S. weapon sales to Saudi Arabia for use in Yemen and a description of U.S. government actions regarding alleged abuses by Saudi Arabia against U.S. citizens, among other issues. Unlike the annual Country Reports, the Section 502B(c) report provides an avenue for specific requests of information and justifications of security cooperation decisions for countries of particular concern.
Congress may request a report in two ways. First, any member of Congress may introduce a simple resolution requesting a report, which is subject to privileged procedures in the Senate that allow any Senator to discharge the resolution from committee 10 days after introduction. The procedures, established in section 601(b) of the International Security and Arms Export Control Act of 1976 (ISAECA), provide a fast track to a simple majority vote on the Senate floor, offering the opportunity for at-times rare public debate on U.S. security cooperation and human rights. Such resolutions have been introduced, but never discharged, in recent years for Saudi Arabia, Turkey, and Azerbaijan. Sen.Murphy introduced one such resolution focused on Saudi Arabia in 2019 alongside Sen. Todd Young (R-Ind.).
Alternatively, the “Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives” may request a Section 502B(c) report in a letter. The letter process produced a report from Henry Kissinger’s State Department in 1976 covering Argentina, Haiti, Indonesia, Iran, Peru, and the Philippines. That letter process, spearheaded by Rep. Donald Fraser (D-Minn.), who also championed Section 502B, established the precedent that a committee chair can request a 502B(c) report without the concurrence of the ranking member.
Upon passage of a simple resolution or receipt of a letter, the State Department must provide the requested report within 30 days. If no such letter is received, Section 502B stipulates, “no security assistance shall be delivered to such country except as may thereafter be specifically authorized by law from such country unless and until such statement is transmitted.”
After the State Department provides Congress with the requested report, Congress may “terminat[e], restrict[e], or continu[e]” security assistance to the country that was the subject of the targeted report through a joint resolution of disapproval. The availability of the joint resolution does not expire and becomes available to Congress regardless of the contents of the report or the nature of human rights abuses in the target country. However, its usage is neither required nor inevitable; the request opens a door but does not require that Congress step through it. The targeted report could also inform standalone legislation, an appropriations rider, further oversight activity, or other forms of congressional follow-on action.
For example, during Operation Condor, U.S. government officials considered options to restrict security assistance to Argentina on the basis of Section 502B amid widespread forced disappearances and torture. Rep. Thomas Morgan (D-Penn.), chair of the House Committee on International Relations, requested a Section 502B(c) report on countries including Argentina. After publication of the report in 1976, Sen. Hubert Humphrey (D-Minn.) described it as “about as bland as swallowing a bucket of sawdust.” Nevertheless, Congress enacted the 1977 Kennedy-Humphrey amendment to halt arms sales and security assistance to Argentina, demonstrating how a Section 502B(c) report can result in legislative measures outside of the Section 502B framework.
The Section 502B joint resolution of disapproval offers a flexible and potent mechanism for congressional oversight. The ability to restrict certain security assistance in a 502B joint resolution of disapproval, rather than cutting off all assistance entirely, indicates that the mechanism should be understood as a scalpel rather than a sledgehammer. Like the simple resolution requesting a report, expedited procedures apply under section 601(b) of the ISAECA, whereby any Senator may discharge a resolution from committee after 10 days, providing a fast track to a simple majority floor vote in the Senate.
The Section 502B(c) joint resolution of disapproval differs from the more familiar Arms Export Control Act joint resolutions of disapproval, which can block major arms sales subject to congressional notification. But Congress only has thirty days after notification to pass an AECA joint resolution of disapproval, meaning that the White House controls the timing. Section 502B puts Congress in the driver’s seat. And unlike Section 502B joint resolutions, an AECA joint resolution only applies to particular notified sales, and it is limited to a simple block of such proposed sales. Compared to 502B resolutions, AECA joint resolutions are relatively inflexible and narrow.
Under both 502B and the AECA, joint resolutions of disapproval still require the president’s signature. Although Congress has passed joint resolutions under the AECA, it has never overcome the presidential vetoes that followed passage. And while Congress has not previously reached the joint resolution stage in the Section 502B process, a Section 502B joint resolution of disapproval would face the same challenge.
Why Hasn’t Congress Used Section 502B More?
During the human rights revolution of the 1970s, enacting and then strengthening Section 502B was a priority on Capitol Hill. Since then, its prominence has faded, with an increase in attention to its enforcement mechanism in recent years. A lack of awareness of Section 502B, a reliance on the Leahy Law, and the persistence of constitutional concerns may have contributed to Section 502B(c)’s disuse.
Awareness of Section 502B has waned in recent decades. As I wrote in a recent law review article, there was a steep decline in appearances of Section 502B in the Congressional Record from the 1970s to the mid-2010s, with renewed interest since 2018. Staff turnover and disuse likely contributed to Section 502B fading from view, but it reemerged amid growing congressional concern regarding implication of U.S. arms sales in possible war crimes by the Saudi-led coalition in Yemen.
In the 1990s, Sen. Patrick Leahy (D-Vt.) saw executive resistance to implementing Section 502B and championed the Leahy Law in response to extrajudicial killings and forced disappearances by Colombian security forces . A prevailing – albeit inaccurate – narrative has framed Section 502B’s mandate as a defunct precursor to the Leahy Law, detracting from Section 502B’s usage. In fact, a recent Politico article cited unnamed opponents of S.Res.109 who claim that the resolution is unnecessary because “the ‘Leahy Law’ is already on the books.” Those opponents are mistaken. The Leahy Law echoes some of the language first established in Section 502B, but its scope is far narrower. Whereas Section 502B prohibits security assistance to countries where the government consistently commits gross violations of human rights, the Leahy Law only prohibits assistance to specific units of foreign security forces credibly found to have committed a gross violation of human rights. Unlike Section 502B, the Leahy Law leaves assistance undefined. Contrary to Senator Leahy’s stated intent, the executive branch has interpreted Leahy vetting as applicable only to assistance provided using appropriated funds, exempting the vast majority of arms sales from such vetting.
Finally, some have raised doubts about the constitutionality of the automatic cut-off provision that enforces the 502B(c) targeted request for a report. I.N.S. v. Chadha, a 1983 Supreme Court decision, invalidated the legislative veto, ruling that legislative acts (i.e., acts that “alter the legal rights, duties, and relations of persons . . . outside the Legislative Branch”) require presentment and bicameralism. Because neither a letter from a committee chair nor a simple resolution meet the conditions of presentment and bicameralism, the argument goes, the automatic cut-off provision may raise concerns in light of Chadha.
The Chadha decision has been particularly harmful to Congress’s role in foreign affairs. In fact, in a 1984 article, then-Senator Biden expressed concern that “Chadha leaves us … dangerously uncertain about the role of Congress … in formulating foreign policy,” drawing particular attention to the Arms Export Control Act and War Powers Resolution. Forty years after Chadha, the decision has come under fire from the left and right alike for upsetting the balance of executive and legislative power, including in the context of key framework national security legislation.
Nevertheless, writing in 1993, Professor Louis Fisher observed that the legislative veto appeared alive and well in some contexts, noting that “the meaning of constitutional law in this area is evidently determined more by pragmatic agreements hammered out between the elected branches than by doctrines announced by the Supreme Court.” Although post-Chadha amendments to the AECA have hampered Congress’s ability to block arms sales, Fisher’s observation could still prove true for Section 502B, the status of which remains indeterminate.
If the State Department were to provide any report – even one that Congress deemed unsatisfactory – responding to a Section 502B(c) request, the automatic cessation of security assistance deliveries would not occur, and no constitutional dispute would arise. This would probably be the most likely outcome of a successful request to Secretary Blinken’s State Department, especially due to the political significance of a request supported by a majority of a congressional chamber or a committee chair and the precedent of Secretary Kissinger’s provision of a report in 1976, albeit before the Chadha decision. However, the Biden administration may provide a report and also include a disclaimer regarding the constitutionality of the automatic cut-off provision.
The legislative veto is a contested area of law, and its application to Section 502B merits a more fulsome analysis. One difference between the 502B(c) automatic cut-off and the legislative veto considered in Chadha is that the precipitating event for the cessation of security assistance is not legislative action but rather executive inaction. The Supreme Court has previously upheld the constitutionality of statutes conditioning a delegated authority upon the fulfillment or non-fulfillment of a specified condition. The executive branch’s failure to provide a requested report could similarly be seen as a condition precedent triggering a cut-off of aid established in legislation. Still, potential constitutional concerns should not dissuade Congress from testing Section 502B.
The Return of Section 502B
Section 502B should be understood as another tool, in addition to AECA joint resolutions of disapproval and the Leahy Law, among other mechanisms, that Congress can use to conduct vital human rights oversight of U.S. arms sales and security assistance. The appropriateness of any tool depends on Congress’ particular needs in a specific context. But the flexibility of Section 502B(c) and the expedited pathway to a Senate floor vote make it especially appealing.
Revitalizing Section 502B would not fix everything about U.S. arms sales and security assistance. Systemic reforms like the “flip the script” approach to AECA joint resolutions of disapproval, included in Sens. Murphy, Lee, and Sanders’ National Security Powers Act, would help reassert Congress’s oversight role originally envisioned in the Arms Export Control Act. Significant reforms and greater resourcing of end-use monitoring are also necessary to ensure that the United States can actually monitor whether weapons that originate in the U.S. are used in human rights abuses or violations of international humanitarian law – violations not currently covered by end-use monitoring programs. And significant gaps persist in the implementation of the Leahy Law, requiring sustained attention from legislators.
Nevertheless, Congress’ reacquaintance with Section 502B would add an important human rights oversight tool that fills gaps between more commonly used mechanisms. Developing a Section 502B habit on the Senate Foreign Relations Committee and House Foreign Affairs Committee could facilitate enhanced oversight for countries receiving U.S. security assistance that meet particular criteria of concern. Future Section 502B(c) reports could focus on other states with poor human rights records or revolve around groups of countries selected based on thematic concerns. Such reports could inform a range of follow-on measures, including possible Section 502B joint resolutions of disapproval. Sens. Murphy and Lee’s resolution could spark a revitalization of Section 502B.
A public conversation about the U.S.-Saudi relationship is long overdue, as is a reassertion of human rights oversight for arms sales. Members of the Senate should support S.Res.109 as part of their oversight duty and ensure its swift passage.