Application for Judicial Review against the US Department of State and US Secretary of State

The submitted arguments proceeded on two main grounds.

First, that the State Department had failed to take into account compelling evidence from UN bodies, NGOs as well as its own reporting, that the exported arms are likely to be involved in ongoing armed conflicts in Yemen and Libya and diverted to non-state actors.

It was specifically argued that pursuant to the AECA, the export authorisation should not have gone ahead as it posed a threat to world peace and risked undermining US national security. Of particular interest, the plaintiffs argued that the risk of diversion to unintended actors, such as Al Qaeda, could jeopardise the US’ own national security, in addition to the threat to peace posed by the potential use of the exported arms in ongoing conflicts.

Second, that the State Department had not properly justified the change in its arms export policy. In support, the plaintiffs relied on evidence of previous situations in which the US had refused to export arms to problematic destinations, such as Turkey, due to the threat which it considered the export could pose to its own national security.

Government Opposition

The State Department opposed this claim on two main grounds.

First, that the New York Centre for Foreign Policy Affairs were not directly injured by the export decision as they were not affected by the arms sales and therefore did not have standing. Second, it claimed that arms export decisions are non-justiciable as they are political questions that are subject to ‘unreviewable agency discretion’.

Claimant Response

This was re-opposed by the claimants, who maintained that they have standing to bring the case due to the impact of the new arms export policy on their mission and resources as an NGO working on challenging problematic US arms exports. They also joined additional plaintiffs to the complaint, who had clearly directly suffered harm from the use of UAE weapons in Libya. On the justiciability argument, the claimants submitted that they were not questioning the political considerations that feed into the State Department’s choice of who to export to, but rather challenging the procedural inadequacies of the process by which this decision was made – in particular, the lack of a reasoned explanation for the decision.

The Court’s decision on whether to dismiss the case or proceed to trial is still awaited.