[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1610 Introduced in Senate (IS)]
107th CONGRESS
1st Session
S. 1610
To protect United States military personnel and other elected and
appointed officials of the United States Government against criminal
prosecution by an international criminal court to which the United
States is not party.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 1, 2001
Mr. Helms (for himself and Mr. Craig) introduced the following bill;
which was read twice and referred to the Committee on Foreign Relations
_______________________________________________________________________
A BILL
To protect United States military personnel and other elected and
appointed officials of the United States Government against criminal
prosecution by an international criminal court to which the United
States is not party.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Servicemembers' Protection
Act of 2001''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) On July 17, 1998, the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, meeting in Rome, Italy, adopted
the ``Rome Statute of the International Criminal Court''. The
vote on whether to proceed with the statute was 120 in favor to
7 against, with 21 countries abstaining. The United States
voted against final adoption of the Rome Statute.
(2) As of April 30, 2001, 139 countries had signed the Rome
Statute and 30 had ratified it. Pursuant to Article 126 of the
Rome Statute, the statute will enter into force on the first
day of the month after the 60th day following the date on which
the 60th country deposits an instrument ratifying the statute.
(3) Since adoption of the Rome Statute, a Preparatory
Commission for the International Criminal Court has met
regularly to draft documents to implement the Rome Statute,
including Rules of Procedure and Evidence, Elements of Crimes,
and a definition of the Crime of Aggression.
(4) During testimony before the Congress following the
adoption of the Rome Statute, the lead United States
negotiator, Ambassador David Scheffer stated that the United
States could not sign the Rome Statute because certain critical
negotiating objectives of the United States had not been
achieved. As a result, he stated: ``We are left with
consequences that do not serve the cause of international
justice.''
(5) Ambassador Scheffer went on to tell the Congress that:
``Multinational peacekeeping forces operating in a country that
has joined the treaty can be exposed to the Court's
jurisdiction even if the country of the individual peacekeeper
has not joined the treaty. Thus, the treaty purports to
establish an arrangement whereby United States armed forces
operating overseas could be conceivably prosecuted by the
international court even if the United States has not agreed to
be bound by the treaty. Not only is this contrary to the most
fundamental principles of treaty law, it could inhibit the
ability of the United States to use its military to meet
alliance obligations and participate in multinational
operations, including humanitarian interventions to save
civilian lives. Other contributors to peacekeeping operations
will be similarly exposed.''.
(6) Notwithstanding these concerns, President Clinton
directed that the United States sign the Rome Statute on
December 31, 2000. In a statement issued that day, he stated
that in view of the unremedied deficiencies of the Rome
Statute, ``I will not, and do not recommend that my successor
submit the Treaty to the Senate for advice and consent until
our fundamental concerns are satisfied''.
(7) Any American prosecuted by the International Criminal
Court will, under the Rome Statute, be denied procedural
protections to which all Americans are entitled under the Bill
of Rights to the United States Constitution, such as the right
to trial by jury.
(8) Members of the Armed Forces of the United States should
be free from the risk of prosecution by the International
Criminal Court, especially when they are stationed or deployed
around the world to protect the vital national interests of the
United States. The United States Government has an obligation
to protect the members of its Armed Forces, to the maximum
extent possible, against criminal prosecutions carried out by
the International Criminal Court.
(9) In addition to exposing members of the Armed Forces of
the United States to the risk of international criminal
prosecution, the Rome Statute creates a risk that the President
and other senior elected and appointed officials of the United
States Government may be prosecuted by the International
Criminal Court. Particularly if the Preparatory Commission
agrees on a definition of the Crime of Aggression over United
States objections, senior United States officials may be at
risk of criminal prosecution for national security decisions
involving such matters as responding to acts of terrorism,
preventing the proliferation of weapons of mass destruction,
and deterring aggression. No less than members of the Armed
Forces of the United States, senior officials of the United
States Government should be free from the risk of prosecution
by the International Criminal Court, especially with respect to
official actions taken by them to protect the national
interests of the United States.
(10) Any agreement within the Preparatory Commission on a
definition of the Crime of Aggression that usurps the
prerogative of the United Nations Security Council under
Article 39 of the charter of the United Nations to ``determine
the existence of any .... act of aggression'' would contravene
the charter of the United Nations and undermine deterrence.
(11) It is a fundamental principle of international law
that a treaty is binding upon its parties only and that it
does not create obligations for nonparties without their consent to be
bound. The United States is not a party to the Rome Statute and will
not be bound by any of its terms. The United States will not recognize
the jurisdiction of the International Criminal Court over United States
nationals.
SEC. 3. WAIVER AND TERMINATION OF PROHIBITIONS OF THIS ACT.
(a) Authority To Initially Waive Sections 5 and 7.--The President
is authorized to waive the prohibitions and requirements of sections 5
and 7 for a single period of one year. A waiver under this subsection
may be issued only if the President at least 15 days in advance of
exercising such authority--
(1) notifies the appropriate congressional committees of
the intention to exercise such authority; and
(2) determines and reports to the appropriate congressional
committees that the International Criminal Court has entered
into a binding agreement that--
(A) prohibits the International Criminal Court from
seeking to exercise jurisdiction over the following
persons with respect to actions undertaken by them in
any capacity:
(i) covered United States persons;
(ii) covered allied persons; and
(iii) individuals who were covered United
States persons or covered allied persons; and
(B) ensures that no person described in
subparagraph (A) will be arrested, detained,
prosecuted, or imprisoned by or on behalf of the
International Criminal Court.
(b) Authority To Extend Waiver of Sections 5 and 7.--The President
is authorized to waive the prohibitions and requirements of sections 5
and 7 for successive periods of one year each upon the expiration of a
previous waiver pursuant to subsection (a) or this subsection. A waiver
under this subsection may be issued only if the President at least
fifteen days in advance of exercising such authority--
(1) notifies the appropriate congressional committees of
the intention to exercise such authority; and
(2) determines and reports to the appropriate congressional
committees that the International Criminal Court--
(A) remains party to, and has continued to abide
by, a binding agreement that--
(i) prohibits the International Criminal
Court from seeking to exercise jurisdiction
over the following persons with respect to
actions undertaken by them in any capacity:
(I) covered United States persons;
(II) covered allied persons; and
(III) individuals who were covered
United States persons or covered allied
persons; and
(ii) ensures that no person described in
clause (i) will be arrested, detained,
prosecuted, or imprisoned by or on behalf of
the International Criminal Court; and
(B) has taken no steps to arrest, detain,
prosecute, or imprison any person described in clause
(i) of subparagraph (A).
(c) Authority To Waive Sections 4 and 6 With Respect to an
Investigation or Prosecution of a Named Individual.--The President is
authorized to waive the prohibitions and requirements of sections 4 and
6 to the degree such prohibitions and requirements would prevent United
States cooperation with an investigation or prosecution of a named
individual by the International Criminal Court. A waiver under this
subsection may be issued only if the President at least 15 days in
advance of exercising such authority--
(1) notifies the appropriate congressional committees of
the intention to exercise such authority; and
(2) determines and reports to the appropriate congressional
committees that--
(A) a waiver pursuant to subsection (a) or (b) of
the prohibitions and requirements of sections 5 and 7
is in effect;
(B) there is reason to believe that the named
individual committed the crime or crimes that are the
subject of the International Criminal Court's
investigation or prosecution;
(C) it is in the national interest of the United
States for the International Criminal Court's
investigation or prosecution of the named individual to
proceed; and
(D) in investigating events related to actions by
the named individual, none of the following persons
will be investigated, arrested, detained, prosecuted,
or imprisoned by or on behalf of the International
Criminal Court with respect to actions undertaken by
them in any capacity:
(i) Covered United States persons.
(ii) Covered allied persons.
(iii) Individuals who were covered United
States persons or covered allied persons.
(d) Termination of Waiver Pursuant to Subsection (c).--Any waiver
or waivers exercised pursuant to subsection (c) of the prohibitions and
requirements of sections 4 and 6 shall terminate at any time that a
waiver pursuant to subsection (a) or (b) of the prohibitions and
requirements of sections 5 and 7 expires and is not extended pursuant
to subsection (b).
SEC. 4. PROHIBITION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL
COURT.
(a) Application.--The provisions of this section--
(1) apply only to cooperation with the International
Criminal Court and shall not apply to cooperation with an ad
hoc international criminal tribunal established by the United
Nations Security Council before or after the date of the
enactment of this Act to investigate and prosecute war crimes
committed in a specific country or during a specific conflict; and
(2) shall not prohibit--
(A) any action permitted under section 8; or
(B) communication by the United States of its
policy with respect to a matter.
(b) Prohibition on Responding to Requests for Cooperation.--
Notwithstanding section 1782 of title 28, United States Code, or any
other provision of law, no United States Court, and no agency or entity
of any State or local government, including any court, may cooperate
with the International Criminal Court in response to a request for
cooperation submitted by the International Criminal Court pursuant to
the Rome Statute.
(c) Prohibition on Transmittal of Letters Rogatory From the
International Criminal Court.--Notwithstanding section 1781 of title
28, United States Code, or any other provision of law, no agency of the
United States Government may transmit for execution any letter rogatory
issued, or other request for cooperation made, by the International
Criminal Court to the tribunal, officer, or agency in the United States
to whom it is addressed.
(d) Prohibition on Provision of Support to the International
Criminal Court.--Notwithstanding any other provision of law, no agency
or entity of the United States Government or of any State or local
government, including any court, may provide support to the
International Criminal Court.
(e) Prohibition on Use of Appropriated Funds To Assist the
International Criminal Court.--Notwithstanding any other provision of
law, no funds appropriated under any provision of law may be used for
the purpose of assisting the investigation, arrest, detention,
extradition, or prosecution of any United States citizen or permanent
resident alien by the International Criminal Court.
(f) Restriction on Assistance Pursuant to Mutual Legal Assistance
Treaties.--The United States shall exercise its rights to limit the use
of assistance provided under all treaties and executive agreements for
mutual legal assistance in criminal matters, multilateral conventions
with legal assistance provisions, and extradition treaties, to which
the United States is a party, and in connection with the execution or
issuance of any letter rogatory, to prevent the transfer to, or other
use by, the International Criminal Court of any assistance provided by
the United States under such treaties and letters rogatory.
(g) Prohibition on Investigative Activities of Agents.--No agent of
the International Criminal Court may conduct, in the United States or
any territory subject to the jurisdiction of the United States, any
investigative activity relating to a preliminary inquiry,
investigation, prosecution, or other proceeding at the International
Criminal Court.
SEC. 5. RESTRICTION ON UNITED STATES PARTICIPATION IN CERTAIN UNITED
NATIONS PEACEKEEPING OPERATIONS.
(a) Policy.--Effective beginning on the date on which the Rome
Statute enters into force pursuant to Article 126 of the Rome Statute,
the President should use the voice and vote of the United States in the
United Nations Security Council to ensure that each resolution of the
Security Council authorizing any peacekeeping operation under chapter
VI of the charter of the United Nations or peace enforcement operation
under chapter VII of the charter of the United Nations permanently
exempts, at a minimum, covered United States persons participating in
such operation from criminal prosecution or other assertion of
jurisdiction by the International Criminal Court for actions undertaken
by such personnel in connection with the operation.
(b) Restriction.--Covered United States persons may not participate
in any peacekeeping operation under chapter VI of the charter of the
United Nations or peace enforcement operation under chapter VII of the
charter of the United Nations, the creation of which is authorized by
the United Nations Security Council on or after the date that the Rome
Statute enters into effect pursuant to Article 126 of the Rome Statute,
unless the President has submitted to the appropriate congressional
committees a certification described in subsection (c) with respect to
such operation.
(c) Certification.--The certification referred to in subsection (b)
is a certification by the President that--
(1) covered United States persons are able to participate
in the peacekeeping or peace enforcement operation without risk
of criminal prosecution or other assertion of jurisdiction by
the International Criminal Court because, in authorizing the
operation, the United Nations Security Council permanently
exempted, at a minimum, covered United States persons
participating in the operation from criminal prosecution or
other assertion of jurisdiction by the International Criminal
Court for actions undertaken by them in connection with the
operation;
(2) covered United States persons are able to participate
in the peacekeeping or peace enforcement operation without risk
of criminal prosecution or other assertion of jurisdiction by
the International Criminal Court because each country in which
covered United States persons participating in the operation
will be present either is not a party to the International
Criminal Court and has not invoked the jurisdiction of the
International Criminal Court pursuant to Article 12 of the Rome
Statute, or has entered into an agreement in accordance with
Article 98 of the Rome Statute preventing the International
Criminal Court from proceeding against covered United States
persons present in that country; or
(3) the United States has taken other appropriate steps to
guarantee that covered United States persons participating in
the operation will not be prosecuted by the International
Criminal Court for actions undertaken by such personnel in
connection with the operation.
SEC. 6. PROHIBITION ON DIRECT OR INDIRECT TRANSFER OF CLASSIFIED
NATIONAL SECURITY INFORMATION AND LAW ENFORCEMENT
INFORMATION TO THE INTERNATIONAL CRIMINAL COURT.
(a) In General.--Not later than the date on which the Rome Statute
enters into force, the President shall ensure that appropriate
procedures are in place to prevent the transfer of classified national
security information and law enforcement information to the
International Criminal Court for the purpose of facilitating an
investigation, apprehension, or prosecution.
(b) Indirect Transfer.--The procedures adopted pursuant to
subsection (a) shall be designed to prevent the transfer to the United
Nations and to the government of any country that is party to the
International Criminal Court of classified national security
information and law enforcement information that specifically relates
to matters known to be under investigation or prosecution by the
International Criminal Court, except to the degree that satisfactory
assurances are received from the United Nations or that government, as
the case may be, that such information will not be made available to
the International Criminal Court for the purpose of facilitating an
investigation, apprehension, or prosecution.
(c) Construction.--The provisions of this section shall not be
construed to prohibit any action permitted under section 8.
SEC. 7. PROHIBITION OF UNITED STATES MILITARY ASSISTANCE TO PARTIES TO
THE INTERNATIONAL CRIMINAL COURT.
(a) Prohibition of Military Assistance.--Subject to subsections (b)
and (c), and effective one year after the date on which the Rome
Statute enters into force pursuant to Article 126 of the Rome Statute,
no United States military assistance may be provided to the government
of a country that is a party to the International Criminal Court.
(b) National Interest Waiver.--The President may, without prior
notice to Congress, waive the prohibition of subsection (a) with
respect to a particular country if he determines and reports to the
appropriate congressional committees that it is important to the
national interest of the United States to waive such prohibition.
(c) Article 98 Waiver.--The President may, without prior notice to
Congress, waive the prohibition of subsection (a) with respect to a
particular country if he determines and reports to the appropriate
congressional committees that such country has entered into an
agreement with the United States pursuant to Article 98 of the Rome
Statute preventing the International Criminal court from proceeding
against United States personnel present in such country.
(d) Exemption.--The prohibition of subsection (a) shall not apply
to the government of--
(1) a NATO member country;
(2) a major non-NATO ally (including Australia, Egypt,
Israel, Japan, Jordan, Argentina, the Republic of Korea, and
New Zealand); or
(3) Taiwan.
SEC. 8. AUTHORITY TO FREE COVERED UNITED STATES PERSONS AND CERTAIN
OTHER PERSONS DETAINED OR IMPRISONED BY OR ON BEHALF OF
THE INTERNATIONAL CRIMINAL COURT.
(a) Authority.--The President is authorized to use all means
necessary and appropriate to bring about the release of any person
described in subsection (b) who is being detained or imprisoned by, on
behalf of, or at the request of the International Criminal Court.
(b) Persons Authorized To Be Freed.--The authority of subsection
(a) shall extend to the following persons:
(1) Covered United States persons.
(2) Covered allied persons.
(3) Individuals detained or imprisoned for official actions
taken while the individual was a covered United States person
or a covered allied person, and in the case of a covered allied
person, upon the request of such government.
(c) Authorization of Legal Assistance.--When any person described
in subsection (b) is arrested, detained, investigated, prosecuted, or
imprisoned by, on behalf of, or at the request of the International
Criminal Court, the President is authorized to direct any agency of the
United States Government to provide--
(1) legal representation and other legal assistance to that
person (including, in the case of a person entitled to
assistance under section 1037 of title 10, United States Code,
representation and other assistance in the manner provided in
that section);
(2) exculpatory evidence on behalf of that person; and
(3) defense of the interests of the United States through
appearance before the International Criminal Court pursuant to
Article 18 or 19 of the Rome Statute, or before the courts or
tribunals of any country.
(d) Bribes and Other Inducements Not Authorized.--This section does
not authorize the payment of bribes or the provision of other such
incentives to induce the release of a person described in subsection
(b).
SEC. 9. ALLIANCE COMMAND ARRANGEMENTS.
(a) Report on Alliance Command Arrangements.--Not later than 6
months after the date of the enactment of this Act, the President
should transmit to the appropriate congressional committees a report
with respect to each military alliance to which the United States is
party--
(1) describing the degree to which members of the Armed
Forces of the United States may, in the context of military
operations undertaken by or pursuant to that alliance, be
placed under the command or operational control of foreign
military officers subject to the jurisdiction of the
International Criminal Court because they are nationals of a
party to the International Criminal Court; and
(2) evaluating the degree to which members of the Armed
Forces of the United States engaged in military operations
undertaken by or pursuant to that alliance may be exposed to
greater risks as a result of being placed under the command or
operational control of foreign military officers subject to the
jurisdiction of the International Criminal Court.
(b) Description of Measures To Achieve Enhanced Protection for
Members of the Armed Forces of the United States.--Not later than one
year after the date of the enactment of this Act, the President should
transmit to the appropriate congressional committees a description of
modifications to command and operational control arrangements within
military alliances to which the United States is a party that could be
made in order to reduce any risks to members of the Armed Forces of the
United States identified pursuant to subsection (a)(2).
(c) Submission in Classified Form.--The report under subsection
(a), and the description of measures under subsection (b), or
appropriate parts thereof, may be submitted in classified form.
SEC. 10. WITHHOLDINGS.
Funds withheld from the United States share of assessments to the
United Nations or any other international organization during any
fiscal year pursuant to section 705 of the Admiral James W. Nance and
Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and
2001 (as enacted by section 1000(a)(7) of Public Law 106-113; 113 Stat.
1501A-460), are authorized to be transferred to the Embassy Security,
Construction and Maintenance Account of the Department of State.
SEC. 11. APPLICATION OF SECTIONS 4 AND 6 TO EXERCISE OF CONSTITUTIONAL
AUTHORITIES.
(a) In General.--Sections 4 and 6 shall not apply to any action or
actions with respect to a specific matter taken or directed by the
President in the exercise of the President's authority as Commander in
Chief of the Armed Forces of the United States under article II,
section 2 of the United States Constitution or in the exercise of the
executive power under article II, section 1 of the United States
Constitution.
(b) Notification to Congress.--
(1) In general.--Subject to paragraph (2), not later than
15 days after the President takes or directs an action or
actions described in subsection (a) that would otherwise be
prohibited under section 4 or 6, the President shall submit a
notification of such action to the appropriate congressional
committees. A notification under this paragraph shall include a
description of the action, a determination that the action is
in the national interest of the United States, and a
justification for the action.
(2) Exception.--If the President determines that a full
notification under paragraph (1) could jeopardize the national
security of the United States or compromise a United States law
enforcement activity, not later than 15 days after the
President takes or directs an action or actions referred to in
paragraph (1) the President shall notify the appropriate
congressional committees that an action has been taken and a
determination has been made pursuant to this paragraph. The
President shall provide a full notification under paragraph (1)
not later than 15 days after the reasons for the determination
under this paragraph no longer apply.
(c) Construction.--Nothing in this section shall be construed as a
grant of statutory authority to the President to take any action.
SEC. 12. PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL
COURT.
Notwithstanding any other provision of law, no agency or entity of
the United States Government or of any State or local government may
extradite any covered United States person to the International
Criminal Court, nor support the transfer of any covered United States
person to the International Criminal Court.
SEC. 13. NONDELEGATION.
The authorities vested in the President by sections 3 and 11(a) may
not be delegated by the President pursuant to section 301 of title 3,
United States Code, or any other provision of law. The authority vested
in the President by section 5(c)(3) may not be delegated by the
President pursuant to section 301 of title 3, United States Code, or
any other provision of law to any official other than the Secretary of
Defense, and if so delegated may not be subdelegated.
SEC. 14. SENSE OF CONGRESS.
It is the sense of Congress that the President should rescind the
signature made on behalf of the United States to the Rome Statute.
SEC. 15. DEFINITIONS.
As used in this Act and in section 706 of the Admiral James W.
Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years
2000 and 2001:
(1) Appropriate congressional committees.--The term
``appropriate congressional committees'' means the Committee on
International Relations of the House of Representatives and the
Committee on Foreign Relations of the Senate.
(2) Classified national security information.--The term
``classified national security information'' means information
that is classified or classifiable under Executive Order 12958
or a successor Executive order.
(3) Covered allied persons.--The term ``covered allied
persons'' means military personnel, elected or appointed
officials, and other persons employed by or working on behalf
of the government of a NATO member country, a major non-NATO
ally (including Australia, Egypt, Israel, Japan, Jordan,
Argentina, the Republic of Korea, and New Zealand), or Taiwan,
for so long as that government is not a party to the
International Criminal Court and wishes its officials and other
persons working on its behalf to be exempted from the
jurisdiction of the International Criminal Court.
(4) Covered united states persons.--The term ``covered
United States persons'' means members of the Armed Forces of
the United States, elected or appointed officials of the United
States Government, other persons employed by or working on
behalf of the United States Government, and other United States
citizens for so long as the United States is not a party to the
International Criminal Court.
(5) Extradition.--The terms ``extradition'' and
``extradite'' mean the extradition of a person in accordance
with the provisions of chapter 209 of title 18, United States
Code, (including section 3181(b) of such title) and such terms
include both extradition and surrender as those terms are defined in
Article 102 of the Rome Statute.
(6) International criminal court.--The term ``International
Criminal Court'' means the court established by the Rome
Statute.
(7) Major non-nato ally.--The term ``major non-NATO ally''
means a country that has been so designated in accordance with
section 517 of the Foreign Assistance Act of 1961.
(8) Participate in any peacekeeping operation under chapter
vi of the charter of the united nations or peace enforcement
operation under chapter vii of the charter of the united
nations.--The term ``participate in any peacekeeping operation
under chapter VI of the charter of the United Nations or peace
enforcement operation under chapter VII of the charter of the
United Nations'' means to assign members of the Armed Forces of
the United States to a United Nations military command
structure as part of a peacekeeping operation under chapter VI
of the charter of the United Nations or peace enforcement
operation under chapter VII of the charter of the United
Nations in which those members of the Armed Forces of the
United States are subject to the command or operational control
of one or more foreign military officers not appointed in
conformity with article II, section 2, clause 2 of the
Constitution of the United States.
(9) Party to the international criminal court.--The term
``party to the International Criminal Court'' means a
government that has deposited an instrument of ratification,
acceptance, approval, or accession to the Rome Statute, and has
not withdrawn from the Rome Statute pursuant to Article 127
thereof.
(10) Peacekeeping operation under chapter vi of the charter
of the united nations or peace enforcement operation under
chapter vii of the charter of the united nations.--The term
``peacekeeping operation under chapter VI of the charter of the
United Nations or peace enforcement operation under chapter VII
of the charter of the United Nations'' means any military
operation to maintain or restore international peace and
security that--
(A) is authorized by the United Nations Security
Council under chapter VI or VII of the charter of the
United Nations; and
(B) is paid for from assessed contributions of
United Nations members that are made available for
peacekeeping or peace enforcement activities.
(11) Rome statute.--The term ``Rome Statute'' means the
Rome Statute of the International Criminal Court, adopted by
the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court on July
17, 1998.
(12) Support.--The term ``support'' means assistance of any
kind, including financial support, transfer of property or
other material support, services, intelligence sharing, law
enforcement cooperation, the training or detail of personnel,
and the arrest or detention of individuals.
(13) United states military assistance.--The term ``United
States military assistance'' means--
(A) assistance provided under chapter 2 or 5 of
part II of the Foreign Assistance Act of 1961 (22
U.S.C. 2151 et seq.); or
(B) defense articles or defense services furnished
with the financial assistance of the United States
Government, including through loans and guarantees,
under section 23 of the Arms Export Control Act (22
U.S.C. 2763).
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