It happens every few decades: foreign regimes that the White House or State Department want to help seek weapons. Congress refuses. The Executive Branch grows frustrated and illegally provides them anyway.
On December 15, 1978, President Jimmy Carter announced that, as of January 1, 1979, the United States would recognize the People’s Republic of China and sever formal relations with Taiwan. This completed a nearly seven-year process begun when National Security Advisor Henry Kissinger traveled secretly to Beijing followed soon after by President Richard Nixon. Zbigniew Brzezinski, Carter’s Polish-born national security advisor, wanted to solidify the new anti-Soviet relationship further by shipping Communist China weaponry. Congress was not as enthusiastic, though, and so Brzezinski sought to make an end run around them and provide the People’s Liberation Army weapons via America’s European allies. He even solicited a list of weaponry from Beijing.
Less than a decade later, it was Reagan-era National Security Advisor Robert “Bud” McFarlane’s turn to bypass Congress. He and National Security Council staffer Oliver North formulated a scheme to sell weaponry and spare parts to Iran through a variety of middlemen, and then divert the proceeds to fund Nicaraguan Contras whose direct financing Congress had forbidden. This so-called Iran-Contra Affair paralyzed Reagan’s second term and almost brought down his presidency.
Pushing Weapons to Azerbaijan
Today, it is President Joe Biden and Secretary of State Anthony Blinken’s turn. They continue to provide military support to Azerbaijan via a waiver to Section 907 of the Freedom Support Act. Biden’s waiver is illegal by both the letter and spirit of the law, as it requires the White House to certify that Azerbaijan remains committed to a diplomatic resolution of its dispute with Armenia. Azerbaijani President Ilham Aliyev, by both word and deed, has made clear his desire to attack if not eliminate Armenia by military force if need be.
Against this backdrop, on October 13, 2022, Palm Desert, California lawyer Hrair Kaladjian, a U.S. citizen and descendent of Armenian genocide survivors, sued both Biden and Blinken before the Ninth Circuit Court of Appeals, on Appeal from the United States District Court for the Central District of California. The basis of the suit is the Biden administration’s “substantive and procedural violations of the Administrative Procedure Act.”
Biden and Blinken will either seek to have the court dismiss the suit, or drag out litigation to enable the administration to continue to provide weaponry to Azerbaijan. In either case, Congress should be outraged. Not only is the Biden administration’s decision to supply an aggressor with weaponry for no clear purpose bad policy but, as Kaladjian shows, it is also against the law. Congressional silence simply enables the White House and State Department to run roughshod over the legislative branch and treat the parameters of the Freedom Support Act and the subsequent waiver process as optional.
In the 1970s and 1980s, Congressional leaders from both parties rallied to shut down White House efforts to make poorly-advised end runs around the separation of powers. That, in the 2020s, Congress fails to act against a former senator and staffer who should know better is a sorry reflection on the willingness of Congressional leaders to defend their institution and the sanctity of law.
Now a 1945 Contributing Editor, Dr. Michael Rubin is a Senior Fellow at the American Enterprise Institute (AEI). Dr. Rubin is the author, coauthor, and coeditor of several books exploring diplomacy, Iranian history, Arab culture, Kurdish studies, and Shi’ite politics, including “Seven Pillars: What Really Causes Instability in the Middle East?” (AEI Press, 2019); “Kurdistan Rising” (AEI Press, 2016); “Dancing with the Devil: The Perils of Engaging Rogue Regimes” (Encounter Books, 2014); and “Eternal Iran: Continuity and Chaos” (Palgrave, 2005).