Presidential Determination and Waiver Pursuant to Section 2249a of Title 10, United States Code, and Sections 40 and 40A of the Arms Export Control Act to Support U.S. Special Operations to Combat Terrorism in Syria

This determination waives statutory prohibitions under the Arms Export Control Act and Title 10 to allow the Department of Defense to provide defense articles and services to foreign forces, irregular forces, groups, or individuals supporting U.S. counterterrorism operations in Syria. It delegates congressional notification responsibilities to the Secretaries of State and Defense, requiring 15-day advance notice before exports proceed or waivers take effect.

Federal Register Open PDF 81 FR 90183

Impact dates

Dec 23, 2016
Secretary of State must consult with and submit reports to Congress prior to authorizing proposed exports
Dec 23, 2016
Secretary of Defense must notify congressional committees before waiver takes effect

Key directives

Waive AECA sections 40 and 40A prohibitions on provision of defense articles/services to foreign forces supporting U.S. counterterrorism operations in Syria
Waive 10 U.S.C. 2249a prohibitions to extent necessary for DoD to carry out such support
Delegate to Secretary of State responsibility to consult with and submit reports to Congress 15 days prior to authorizing proposed exports
Delegate to Secretary of Defense responsibility to notify congressional committees at least 15 days before waiver takes effect
Secretary of Defense authorized and directed to publish determination in Federal Register

Who is ordered

Timeline

Immediate

Waiver of AECA sections 40 and 40A prohibitions takes effect upon 15-day congressional notification
Waiver of 10 U.S.C. 2249a takes effect upon 15-day congressional notification

Near term (90d)

Secretary of State must consult with and submit reports to Congress 15 days prior to authorizing proposed exports
Secretary of Defense must notify congressional committees at least 15 days before waiver takes effect

Long term

Ongoing authority for DoD to support foreign forces in Syria counterterrorism operations

Risks & tensions

Arms transfers to irregular forces and non-state actors carry inherent accountability and end-use monitoring risks
15-day congressional notification provides limited window for oversight of potentially sensitive transactions
Vague scope of 'foreign forces, irregular forces, groups, or individuals' creates implementation uncertainty
Waiver of statutory prohibitions reflects tension between counterterrorism urgency and nonproliferation norms