[Congressional Record Volume 166, Number 212 (Tuesday, December 15, 2020)]
[Senate]
[Pages S7496-S7498]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        ARMS SALES NOTIFICATION

  Mr. RISCH. Mr. President, section 36(b) of the Arms Export Control 
Act requires that Congress receive prior notification of certain 
proposed arms sales as defined by that statute. Upon such notification, 
the Congress has 30 calendar days during which the sale may be 
reviewed. The provision stipulates that, in the Senate, the 
notification of proposed sales shall be sent to the chairman of the 
Senate Foreign Relations Committee.
  In keeping with the committee's intention to see that relevant 
information is available to the full Senate, I ask unanimous consent to 
have printed in the Record the notifications which have been received. 
If the cover letter references a classified annex, then such annex is 
available to all Senators in the office of the Foreign Relations 
Committee, room SD-423.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  Defense Security


                                           Cooperation Agency,

                                                    Arlington, VA.
     Hon. James E. Risch,
     Chairman, Committee on Foreign Relations,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: Pursuant to the reporting requirements 
     of Section 36(b)(1) of the Arms Export Control Act, as 
     amended, we are forwarding herewith Transmittal No. 21-07 
     concerning the Air Force's proposed Letter(s) of Offer and 
     Acceptance to the Government of Italy for defense articles 
     and services estimated to cost $500 million. After this 
     letter is delivered to your office, we plan to issue a news 
     release to notify the public of this proposed sale.
           Sincerely,
                                                   Heidi H. Grant,
                                                         Director.
       Enclosures.


                         Transmittal No. 21-07

     Notice of Proposed Issuance of Letter of Offer Pursuant to 
         Section 36(b)(1) of the Arms Export Control Act, as 
         amended
       (i) Prospective Purchaser: Government of Italy.
       (ii) Total Estimated Value:
       Major Defense Equipment* $10 million.
       Other $490 million.
       Total $500 million.
       (iii) Description and Quantity or Quantities of Articles or 
     Services under Consideration for Purchase: The Government of 
     Italy has requested to buy articles and services to support 
     the integration of two (2) Airborne Intelligence, 
     Surveillance, Reconnaissance, and Electronic Warfare (AISREW) 
     mission systems onto two (2) Italian Ministry of Defense 
     provided G550 aircraft consisting of:
       Major Defense Equipment (MDE):
       Four (4) Multifunctional Information Distribution Systems--
     Joint Tactical Radio System (MIDS JTRS) (2 installed, 2 
     spares).
       Three (3) Embedded/GPS/INS (EGI) with GPS Security Devices, 
     Airborne (2 installed, 1 spare).
       Four (4) RIOTM Communications Intelligence 
     Systems (2 installed, 2 spares).
       Non-MDE: Also included are Missile Warning Sensors, AN/ALE-
     47 Countermeasure Dispenser Sets (CMDS), MX-20HD Electro-
     Optical and Infra-Red systems, Osprey 50 AESA Radars, AISREW 
     ISR equipment, Secure Communications equipment, 
     Identification Friend or Foe Systems, aircraft modification 
     and integration, ground systems for data processing and crew 
     training, ground support equipment, publications and 
     technical data, U.S. Government and contractor engineering, 
     technical and logistics support services, flight test and 
     certification, and other related elements of logistical and 
     program support.
       (iv) Military Department: Air Force (IT-D-BAA).
       (v) Prior Related Cases, if any: None.
       (vi) Sales Commission, Fee, etc., Paid, Offered, or Agreed 
     to be Paid: None.
       (vii) Sensitivity of Technology Contained in the Defense 
     Article or Defense Services Proposed to be Sold: See Attached 
     Annex.
       (viii) Date Report Delivered to Congress: December 15, 
     2020.
       * As defined in Section 47(6) of the Arms Export Control 
     Act.


                          policy justification

      Italy--Gulfstream G550 Aircraft with Airborne Intelligence, 
 Surveillance, Reconnaissance, and Electronic Warfare (AISREW) Mission 
                                Systems

       The Government of Italy has requested to buy articles and 
     services to support the integration of two (2) Airborne 
     Intelligence, Surveillance, Reconnaissance, and Electronic 
     Warfare (AISREW) mission systems onto two (2) Italian 
     Ministry of Defense provided G550 aircraft consisting of: 
     four (4) Multifunctional Information Distribution Systems--
     Joint Tactical Radio System (MIDS JTRS) (2 installed, 2 
     spares); three (3) Embedded/GPS/INS (EGI) with GPS security 
     devices, airborne (2 installed, 1 spare); and four (4) 
     RIOTM Communications Intelligence Systems (2 
     installed, 2 spares). Also included are Missile Warning 
     Sensors, AN/ALE-47 Countermeasure Dispenser Sets (CMDS), MX-
     20HD Electro-Optical and InfraRed systems, Osprey 50 AESA 
     Radars, AISREW ISR equipment, Secure Communications 
     equipment, Identification Friend or Foe Systems, aircraft 
     modification and integration, ground systems for data 
     processing and crew training, ground support equipment, 
     publications and technical data, US Government and contractor 
     engineering, technical and logistics support services, flight 
     test and certification, and other related elements of 
     logistical and program support. The total estimated program 
     cost is $500 million.
       This proposed sale will support U.S. foreign policy and 
     national security by helping to improve the security of a 
     NATO ally, which is an important partner for political 
     stability and economic progress in Europe.
       The proposed sale supports and complements the ongoing 
     efforts of Italy to modernize its airborne Intelligence, 
     Surveillance, Reconnaissance, and Electronic Warfare 
     capability and increases interoperability between the U.S. 
     Air Force and the Italian Air Force (ITAF). Italy will have 
     no difficulty absorbing these articles into its armed forces.
       The proposed sale of this equipment and support will not 
     alter the basic military balance in the region.
       The principal contractor will be L3Harris, Greenville, TX. 
     There are no known offset agreements proposed in connection 
     with this potential sale.
       Implementation of this proposed sale will require the 
     assignment of up to six (6) additional U.S. contractor 
     representatives to Italy for a duration of one (1) year to 
     support equipment familiarization.
       There will be no adverse impact on U.S. defense readiness 
     resulting from this proposed sale.


                         transmittal no. 21-07

     Notice of Proposed Issuance of Letter of Offer Pursuant to 
         Section 36(b)(1) of the Arms Export Control Act

                           Annex Item No. vii

       (vii) Sensitivity of Technology:
       1. Missile Warning Sensor (MWS) units are mounted on the 
     aircraft exterior to provide omni-directional protection. The 
     MWS warns of threat missile approach by detecting radiation 
     associated with the rocket motor. The Infrared Missile 
     Warning System (IRMWS) is a small, lightweight, passive, 
     electro-optic, threat-warning device used to detect surface-
     to-air missiles fired at helicopters and low-flying fixed-
     wing aircraft and automatically provides counter-measures, as 
     well as audio and visual warning messages to the aircrew.
       2. Multifunctional Information Distribution System-Joint 
     Tactical Radio System (MIDS JTRS) is an advanced Link-16 
     command, control, communications, and intelligence (C3I) 
     system incorporating high capacity, jam-resistant, digital 
     communication links for exchange of near real-time tactical 
     information, including both data and voice, among air, 
     ground, and sea elements.
       3. The AN/ALE-47 Countermeasure Dispenser Set (CMDS) 
     provides an integrated threat-adaptive, computer controlled 
     capability for dispensing chaff, flares, and active radio 
     frequency expendables. The system is internally mounted and 
     may be operated as a standalone system or may be integrated 
     with other on-board Electronic Warfare (EW) and avionics 
     systems. The AN/ALE-47 uses threat data received over the 
     aircraft interfaces to assess the threat situation and 
     determine a response. Expendable routines tailored to the 
     immediate aircraft and threat environment may be dispensed 
     using one of four operational modes.
       4. The Embedded GPS-INS (EGI) is a sensor that combines GPS 
     and inertial sensor inputs to provide accurate location 
     information for navigation and targeting, and can be loaded 
     with crypto-variable keys.
       5. Wescam MX-20HD is a gyro-stabilized, multi-spectral, 
     multi-field of view Electro-Optical/Infrared (EO/IR) system. 
     The systems provide surveillance laser illumination and laser 
     designation through use of an externally mounted turret 
     sensor unit and internally mounted master control. Sensor 
     video imagery is displayed in the aircraft real time and may 
     be recorded for subsequent ground analysis.
       6. The Osprey family of surveillance radars provides second 
     generation Active Electronically Scanned Array (AESA) 
     surveillance capability as the primary sensor on airborne 
     assets. The Osprey radars are at a high technology readiness 
     level and are in production for fixed and rotary wing 
     applications. This Osprey configuration employs a side-
     looking radar. Osprey radars provide a genuine multi-domain 
     capability, with high performance sea surveillance, notably 
     against difficult targets, land surveillance with wide swath, 
     very high resolution ground mapping, small and low speed 
     ground target indication, high performance air to air 
     surveillance, tracking and intercept.
       7. The AISREW mission systems, to include the 
     RIOTM Communications Intelligence Systems, provide 
     near-real-time information to tactical forces, combatant 
     commanders and national-level authorities

[[Page S7497]]

     across the spectrum of conflict. The mission system can 
     forward gather information in a variety of formats via 
     secured communications systems. Most hardware used in this 
     system is generic and commercially available. However, if any 
     of the specialized hardware or publications are lost, the 
     information could provide insight into many critical U.S. 
     capabilities. Information gained could be used to develop 
     countermeasures as well as offensive and defensive counter-
     tactics.
       8. The highest level of classification of information 
     included in this potential sale is SECRET.
       9. If a technologically advanced adversary were to obtain 
     knowledge of the specific hardware and software elements, the 
     information could be used to develop countermeasures that 
     might reduce weapon system effectiveness or be used in the 
     development of a system with similar or advanced 
     capabilities.
       10. A determination has been made that Italy can provide 
     substantially the same degree of protection for the sensitive 
     technology being released as the U.S. Government. This sale 
     is necessary in furtherance of the U.S. foreign policy and 
     national security objectives outlined in the Policy 
     Justification.
       11. All defense articles and services listed in this 
     transmittal have been authorized for release and export to 
     Italy.

  Mrs. BLACKBURN. Mr. President, I am pleased that we've finally agreed 
on language to enhance penalties for female genital mutilation, or FGM, 
a truly horrible practice. I thank my colleagues in the House who 
worked with me on this issue.
  More than 200 million women and girls alive today in 30 countries in 
Africa, the Middle East, Asia, and the United States have fallen victim 
to this monstrous practice. Researchers estimate more than 500,000 
women and girls in the U.S. have experienced or are at risk of falling 
victim to FGM.
  I introduced legislation on this subject earlier this year, and, 
although the final language adopted by the House in H.R. 6100 doesn't 
include the protections I championed in a legally precise manner, it 
will send a strong message that Congress condemns the violent and 
disgusting butchery of young girls and women in this country.
  Federal law bans the practice of FGM. However, in 2018, a district 
judge in Michigan found unconstitutional under Commerce Clause grounds 
the Federal statute banning FGM. Rather than appeal, the Department of 
Justice's Solicitor General wrote a letter asking Congress to amend the 
law to address the constitutional problem. I ask unanimous consent that 
this letter be printed in the Record following my remarks.
  The bill I introduced in response to this request, S. 2017, the 
Federal Prohibition of Female Genital Mutilation Act of 2019, fixes the 
constitutional defects by adding specific commerce clause-focused 
language to the current law. It is a straightforward change that would 
make the existing statute consistent with Supreme Court precedent.
  The House version of my bill will go a long way in protecting women 
and girls from FGM, but I remain convinced Congress can and should go 
even further to prevent this barbarity. Because H.R. 6100 only 
criminalizes FGM acts committed for nonmedical reasons, it creates a 
loophole in the form of a medical benefits defense. Criminal defendants 
could leverage this defense against their victims by claiming they 
performed FGM to prevent infections, inflammation, or sexually 
transmitted diseases, all common excuses in countries where FGM is 
widespread. Unlike the old law, the burden is now on the government to 
prove the act was not done for medical reasons. Previously, it was the 
defendant's burden to prove the act was not medically necessary, per 18 
U.S.C. 116(b).
  While medical issues are commonly contested in FGM cases, the 
addition of a new element for the government to prove as part of its 
case-in-chief makes it tougher to prosecute perpetrators.
  Furthermore, section 5 of H.R. 6100 declares that the Michigan 
district court decision on interstate commerce is erroneous. That 
language squarely conflicts with the Solicitor General's letter to 
Congress, which asserts the exact opposite.
  A fix-it law should make a defective law better, not introduce new 
problems or make it easier for defendants to escape accountability. I 
am disappointed that these concerns were not addressed early on in the 
legislative drafting process, but I am also optimistic that we will 
resolve them in a future Congress.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                              Office of the Solicitor General,

                                   Washington, DC, April 10, 2019.
      Re United States v. Jumana Nagarwala et al., No. 17-cr-20274 
         (E.D. Mich. Nov. 20, 2018)

      Hon. Dianne Feinstein,
      Ranking Member, Committee on the Judiciary,
      U.S. Senate, Washington, DC.
       Dear Senator Feinstein: Consistent with 28 U.S.C. 530D, I 
     write to call your attention to the above-referenced decision 
     of the United States District Court for the Eastern District 
     of Michigan. A copy of the decision is attached.
       This case is the first federal prosecution under 18 U.S.C. 
     116(a), which prohibits female genital mutilation (FGM). 
     Section 116(a) makes it a criminal offense to ``knowingly 
     circumcise[ ], excise[ ], or infibulate[ ] the whole or any 
     part of the labia majora or labia minora or clitoris of 
     another person who has not attained the age of 18 years.'' 
     Ibid. The district court dismissed the FGM charges, holding 
     that Section 116(a) is beyond Congress's power. First, the 
     court concluded that Section 116(a) is not necessary and 
     proper to effectuate an international treaty under Missouri 
     v. Holland, 252 U.S. 416 (1920). The court rejected the 
     government's argument that the provision was rationally 
     related to implementing the United States' obligations under 
     the International Covenant on Civil and Political Rights 
     (ICCPR), done, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368. 
     Second, the court relied on United States v. Lopez, 514 U.S. 
     549 (1995), and United States v. Morrison, 529 U.S. 598 
     (2000), to hold that Section 116(a) was beyond Congress's 
     power under the Commerce Clause. The court found that FGM was 
     not an economic activity but was instead a form of physical 
     assault, and that the statute adding Section 116(a) to the 
     U.S. Code was unaccompanied by detailed, record-based 
     findings from which a court could determine that FGM 
     substantially affects interstate commerce. The court further 
     emphasized that, unlike many federal criminal statutes, 
     Section 116(a) does not include any jurisdictional elements, 
     such as a requirement that the charged offense have an 
     explicit connection with, or effect on, interstate commerce.
       Section 116(a) targets an especially heinous practice--
     permanently mutilating young girls--that should be 
     universally condemned. FGM is a form of gender-based violence 
     and child abuse that harms victims not only when they are 
     girls, suffering the immediate trauma of the act, but also 
     throughout their lives as women, when it often results in a 
     range of physical and psychological harms. See Act of Sept. 
     30, 1996, Pub. L. 104-208, Div. C., Tit. VI, Sec. 644(a), 110 
     Stat. 3009-708 (18 U.S.C. 116 note). The Centers for Disease 
     Control and Prevention estimates that half a million women 
     and girls in the United States have already suffered FGM or 
     are at risk for being subjected to FGM in the future. See 
     Howard Goldberg et al., Centers for Disease Control and 
     Prevention, Female Genital Mutilation/Cutting in the United 
     States, 131 Public Health Reports 340 (2016). The Department 
     therefore condemns this practice in the strongest possible 
     terms.
       That said, the Department has reluctantly determined that--
     particularly in light of the Supreme Court's decision in 
     Morrison, which was decided after Section 116(a)'s 
     enactment--it lacks a reasonable defense of the provision, as 
     currently worded, and will not pursue an appeal of the 
     district court's decision. Instead, we urge that Congress act 
     forthwith to address the constitutional problem, by promptly 
     enacting the attached legislative proposal, which, in our 
     view, would clearly establish Congress's authority to 
     criminalize FGM of minors and ensure that this practice is 
     prohibited by federal law.
       First, the Department has determined that it lacks an 
     adequate argument that Section 116(a), as it is currently 
     written, is necessary and proper to the regulation of 
     interstate commerce. Pursuant to the Commerce Clause, 
     Congress can regulate and protect the channels of interstate 
     commerce, the instrumentalities of interstate commerce, and 
     activities that ``substantially affect interstate commerce.'' 
     Gonzales v. Raich, 545 U.S. 1, 17 (2005). Unlike many federal 
     criminal statutes, however, Section 116(a) does not require 
     proof of any nexus between the conduct at issue (performing 
     FGM on minors) and interstate commerce--the critical defect 
     found by the Supreme Court in Morrison and Lopez. 
     Furthermore, although FGM can be performed in circumstances 
     with commercial characteristics, FGM itself does not appear 
     to be inherently an economic activity, and when performed 
     purely locally, FGM does not appear to be ``part of an 
     economic `class of activities' that have a substantial effect 
     on interstate commerce.'' Ibid.
       Second, the Department has determined that it does not have 
     an adequate argument that Section 116(a) is within Congress's 
     authority to enact legislation to implement the ICCPR, which 
     does not address FGM. None of the ICCPR's provisions 
     references FGM at all. Nor do they provide a basis for the 
     federal government itself (rather than the individual States) 
     to criminalize FGM of minors by private parties. This case is 
     therefore not analogous to Holland, which involved a treaty 
     that more directly addressed the parties' obligation to 
     protect certain migratory birds and to propose legislation to 
     do so. See 252 U.S. at 431. Thus, even maintaining the full 
     continuing validity of Holland, the Department does not 
     believe it can defend Section 116(a) on this ground.

[[Page S7498]]

       Although the Department has determined not to appeal the 
     district court's decision, it recognizes the severity of the 
     charged conduct, its lifelong impact on victims, and the 
     importance of a federal prohibition on FGM committed on 
     minors. Accordingly, the Department urges Congress to amend 
     Section 116(a) to address the constitutional issue that 
     formed the basis of the district court's opinion in this 
     case. Specifically, concurrently with submitting this letter, 
     the Department is submitting to Congress a legislative 
     proposal that would amend Section 116(a) to provide that FGM 
     is a federal crime when (1) the defendant or victim travels 
     in or uses a channel or instrumentality of interstate or 
     foreign commerce in furtherance of the FGM; (2) the defendant 
     uses a means, channel, facility, or instrumentality of 
     interstate commerce in connection with the FGM; (3) a payment 
     is made in or affecting interstate or foreign commerce in 
     furtherance of the FGM; (4) an offer or other communication 
     is made in or affecting interstate or foreign commerce in 
     furtherance of the FGM; (5) the conduct occurs within the 
     United States' special maritime and territorial jurisdiction, 
     or within the District of Columbia or a U.S. territory; or 
     (6) the FGM otherwise occurs in or affects interstate or 
     foreign commerce. In our view, adding these provisions would 
     ensure that, in every prosecution under the statute, there is 
     a nexus to interstate commerce.
       Please let me know if we can be of further assistance in 
     this matter.
           Sincerely,
                                                Noel J. Francisco,
     Solicitor General

                          ____________________