Taiwan Arms Sales: Congressional Notification Issue Heats Up

Taipei Times reported today that chances appear slim that Congressional notifications will go forward this session. In response, Congress has sent two shots across the bow. The first is yesterday's passage of House Resolution (HR) 6646, which requires "the Secretary of State, in consultation with the Secretary of Defense, to provide detailed briefings to Congress on any recent discussions conducted between United States Government and the Government of Taiwan and any potential transfer of defense articles or defense services to the Government of Taiwan."

Hitting a nerve, the Bush administration didn't respond kindly. The Department of Justice already responded that the "bill would infringe upon the President's constitutional authority to conduct foreign diplomacy and to supervise and determine the timing and extent of the disclosure of diplomatic and national security information outside of the Executive branch."

In addition, Rep Tom Tancredo has prepared a bill that would require "in accordance with section 3(a)6 of the Taiwan Relations Act, the defense articles and defense services described in subsection (b) shall be transferred on a sales basis to Taiwan as soon as practicable after the date of the enactment of this Act. The proposed bill notes that "the unfulfilled elements of the request made by Taiwan and approved by President George W. Bush in 2001 that includes diesel electric submarines or relevant designs, Mark-48 ASW torpedoes, Harpoon submarine-launched anti-ship cruise missiles, PAC–3 missile defense systems, Paladin self-propelled howitzers, Apache helicopters, and mine-sweeping helicopters." It also highlights "66 F–16 C/D fighter planes that were requested by the Government of Taiwan in August 14 2007."

It further states that "the requirement to transfer defense articles and defense services under subsection (a) shall be carried out notwithstanding the provisions for congressional notification and approval of a proposed sale of defense articles or defense services in section 36(b) of the Arms Export 21 Control Act (22 U.S.C. 2776(b))."

Both probably aren't expected to go far, especially since Congress goes into recess tomorrow. However, it certainly sets the stage for a major battle when Congress reconvenes. However, there is reason to believe that the Bush administration should come out tomorrow with some annoucement.

There's sufficient reason to suspect that the hold on Congressional notifications is more than just a tactical expediency. Based on an interpretation of statements dating back the last couple of years, the delay, or freeze, whichever term one prefers, could represent a strategic shift toward Beijing's interpretation of the 1982 Shanghai Communique. This would be based on the Bush administration's belief that the security situation in the Taiwan Strait has changed in a fundamental way since May 2008. Or that a fundamental change could be imminent, and they want to buy some time to give Beijing a chance. In other words, they may be willing to take some hits now and then hope that Beijing responds by standing down a conventional Second Artillery brigade opposite Taiwan. This is all just based on a reading of the tea leaves.

Beijing almost certainly has been pressing the Bush administration to abide by its perceived commitment to the 1982 Communique. It has since signing of the communique. But with as much as US $11 billion in arms sales appearing to be imminent, Beijing authorities likely would be pressing its case harder than ever, together with credible threats. In the 1982 Communique, the United States stated that its arms sales to Taiwan would not qualitatively or quantitatively the level of those supplied in years preceding the establishment of diplomatic relations between the United States and China. Then, there's a stated intent to reduce gradually U.S. sales of arms to Taiwan, leading over a period of time to a final resolution.

If there has been a strategic shift -- a Presidential-level determination that there has been a fundamental shift in the security situation in the Taiwan Strait since May 2008 -- then it follows that there would be a reconsideration of the decisions that were made in the beginning of the Bush administration. It also follows that the Bush administration would deny there's a freeze on arms sales to Taiwan. Arms sales would continue, but at a much reduced level, in accordance with the 1982 Communique. As in 1982 and as stated in the Communique, there could be a renewed view that "the new situation which has emerged with regard to the Taiwan question also provides favorable conditions for the settlement of United States-China differences over the question of United States arms sales to Taiwan."

However, U.S. law under the Taiwan Relations Act (TRA) would remain the sticking point. The TRA requires that the United States provide Taiwan with necessary defense articles and services for sufficient self defense. In the 1982 Communique, U.S. agreement to limit and reduce its arms sales to Taiwan was premised on the assumption that Beijing would be commited to a peaceful approach in resolving its differences with Taiwan. However, the metric to assess whether or not Beijing's approach is peaceful is ambiguous. The only valid basis for providing Taiwan with necessary defense articles and services would be military judgments regarding Beijing's military posture opposite Taiwan (e.g., the annual DoD report to Congress on PRC Military Power). Theoretically, if Beijing's military capabilities increase, so should U.S. arms sales and other forms of assistance. If capabilities decrease, then so should arms sales and other forms of assistance. Beijing doesn't accept this interpretation. It doesn't like the annual DoD report to Congress either.

So the question that should guide decisions on arms sales is whether or not Beijing has sufficiently reduced its military capabilities that could be employed against Taiwan. There's been no indication that they have at all. The last DoD report to Congress certainly did give any indication that PRC military capabilities that could be directed against Taiwan are going down. The opposite is true. But if there's been some change, the Bush administration should give tangible evidence. Without any evidence of a diminished military posture -- a substantial reduction in military capabilities -- opposite Taiwan, any Bush administration conclusion that there's been a fundamental shift in the security situation is tenuous at best.