[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
____________________