Closing the Weapons Export Loophole
Guest Blog by Josh Paul
“End-Use Monitoring” might be one of the most misleading terms in all of Government. It is the system by which the U.S. keeps an eye on weapons it transfers to other countries. But as I had to explain repeatedly to Congress while I worked on arms transfers at the State Department, “End-Use Monitoring” doesn’t actually mean that we monitor end-use. Rather, it is intended to ensure that weapons are not illegally retransferred to unauthorized third parties, or illicitly taken apart to steal American tech secrets. But when it comes to assessing how a country actually uses U.S. weapons, and particularly if they are being used in accordance with U.S. and international law - there’s no formal system in place.
It was apparent the absence of actual monitoring of end-use was a problem long before 2023, but given Israel’s blatant disregard for international humanitarian law, the laws of armed conflict, and Palestinian life while utilizing American weapons (particularly, but not uniquely, in Gaza, a consensus is finally emerging in Congress that something has to be done to close the gap.
Enter two new Bills before Congress: In the House, the Silver Shield Act of 2025 (H.R.4502) introduced by Representative Sara Jacobs (D-CA), and in the Senate, the Values in Arms Export Act of 2026 (S.5082) introduced by Senator Patty Murray (D-WA). Each of these bills is designed to close the existing gap in U.S. end use processes by directing the Executive Branch to actually keep an eye on how U.S. weapons are used by partners - and to take action when misuse occurs.
Let’s look at how they each do it - there are a lot of similarities between the bills, but also a couple of interesting differences.
First, the Silver Shield Act, which takes its name by reference to the two existing End-Use Monitoring Regimes (the ones that don’t monitor end-use!) - the Golden Sentry program for arms sold via the Foreign Military Sales program, and the Blue Lantern program for arms sold via direct commercial export licensing.
The Silver Shield Act creates a stand-alone program in the State Department to monitor whether there is credible information that a recipient used defense articles or defense services from the United States to inflict civilian harm, violate international humanitarian law, or violate international human rights law and to determine whether U.S. weapons were used to commit serious violations of IHL including genocide, crimes against humanity, or other grave breaches of the Geneva Conventions. It requires the Government to consider a range of sources for such allegations, including reporting by credible NGOs and media outlets, and also creates an external advisory board to inform implementation of the program.
Importantly, the Act modifies Section 4 of the Arms Export Control Act - the section which lists the purposes for which arms may be transferred - to make explicit that “violation of international humanitarian law or international human rights law may not be construed to be an authorized purpose for military sales or leases by the United States”. (You’d think this would already be clear, but sadly it does need to be spelled out, it seems.)
The Act also creates a requirement for recipient countries to make commitments including not to “commit or facilitate a violation of international humanitarian law or international human rights law” - meaning that if countries violate that commitment, they may be ineligible for future arms transfers.
Finally, the Silver Shield Act also creates an annual reporting requirement, and authorizes funding for the program.
Let us now turn to the Values in Arms Export Act of 2026 - a Bill that, to Murray’s credit, has been introduced in three consecutive Congresses, most recently in a modified and updated version this July.
Like Silver Shield, The Values in Arms Export Act directs the creation of a new process for monitoring how other countries actually use - or misuse - U.S. weapons, and lays out a series of definitions of misuse, including not only gross violations of internationally recognized human rights, but also some more specific acts such as patterns or egregious incidents of attacks on medical facilities, aid workers, and journalists. Although the Act directs fewer of the specific details as to how this mechanism would work, it does significantly increase transparency by requiring that all information gathered under the mechanism be shared with the appropriate Congressional Committees.
As it currently stands, there is no known standing tasking to the U.S. intelligence community to even keep an eye out for foreign misuse of U.S. weapons. This creates an easy out for the U.S. Government to say - as it has done so many times in the past 3 years - that it’s not aware of any. This Act would change that by mandating that the Director of National Intelligence must include the gathering of information relevant to the end-use monitoring program in the National Intelligence Priorities Framework, which guides U.S. intelligence collection activities and resourcing.
Although different to Silver Shield’s approach, the Act would also require for all major arms sales, a certification to Congress as to whether it is “more likely than not” that the weapons will be used to violate international law or commit human rights abuses, and, vitally, also amends the existing law to make clear that the issuance of an export license to a U.S. company “does not exempt the licensee from their own due diligence to ensure any defense article or defense service covered by the license is used with respect for and compliance with internationally recognized human rights and international humanitarian law.” This sentence alone could have extensive and significant implications for litigation against arms companies supplying arms to human rights abusers, as they currently hide behind the U.S. Government licensing process to dodge any responsibility.
While Silver Shield creates an Advisory Board, the Values in Arms Exports Act creates a somewhat more empowered Human Rights and Law of War Oversight Board, which not only provides advice on implementation of the Act, but also reports annually to Congress, and which has an oversight role that includes whether the Government is actually adhering to the policies and requirements of the program.
There is one final, and perhaps most substantive difference, between Silver Shield and the Values in Arms Exports Act: While Silver Shield creates a program that applies to all U.S. arms exports, the Values in Arms Exports Act limits some aspects of the end-use monitoring mechanism it creates to “countries of concern.” Countries of Concern are either designated by the President, Secretary of State, Secretary of Defense, Human Rights and Law of War Oversight Board, or by Congress, as well as any country in which any unit has been designated under the Leahy Laws. Once a country is designated as being of concern, not only does the full end-use monitoring mechanism apply, but that country becomes ineligible to receive “any defense article in the same category of the United States Munitions List as a defense article determined to have been involved in the foreign government’s designation as a country of concern.” So in other words, if a country was designated as being of concern due to its misuse of an air-to-ground munition, say a JDAM, it would immediately become ineligible to receive any U.S. air-to-ground munition. The designation lasts three years; a second designation within a 10-year period makes the country ineligible for any U.S. defense articles.
There’s a lot to like in both approaches, both in their similarities and in their differences - but particularly in the fact that both aim to close a very obvious gap in U.S. arms transfer practice whose implications have become most clear in recent years in the context of Israel, but the closing of which gap would have beneficial implications for U.S. defense cooperation around the world.
To set expectations, though, let’s be clear: Neither bill is going to pass in the present Congress, in which the Majority has bent over backwards to accelerate arms transfers and ease oversight of U.S. weapons exports, including by efforts to raise the monetary thresholds on required notifications, and by refusing to hold Hearings into the misuse of U.S. weapons by partner countries, most notably Israel.
But Americans should take heart that two serious Members of Congress are proposing two serious approaches to ensuring that our defense cooperation is better governed under our laws, and better aligned with our values. As someone who worked on these issues within the State Department for many years and often struggled to find a statutory hook I could lean on to make arguments concerning human rights in arms transfers, I would take either of these bills in a heartbeat. A New Policy is excited to support the Silver Shield Act of 2025 and the Values in Arms Exports Act of 2026. We encourage all Members of Congress to join one or the other of these Acts as cosponsors, and we look forward to seeing them be reintroduced and advanced in a future Congress. This is what it looks like to make sure our policies and laws reflect our interests - and our values.
Read our full analyses of each Act here:
