Last month, the United States Department of State notified Congress of a potential $24.3 billion sale of the Lockheed Martin F-35 Lightning II Joint Strike Fighter to the Kingdom of Saudi Arabia. It was one of several pending “Foreign Military Sales” (FMS) approved by the State Department.
“This proposed sale will support the foreign policy and national security objectives of the United States by improving the security of a major non-NATO ally that is a force for political stability and economic progress in the Gulf region,” the State Department explained in its media statement.
Under Section 36 of the Arms Export Control Act (AECA), Congress must be formally notified of any FMS, provided the sales meet specific monetary and recipient thresholds.
FMS Vs. DCS
FMS dates back to the post-World War II and early Cold War period, when the United States began more systematically tracking and structuring international defense transfers and security assistance.
Unlike Direct Commercial Sales (DCS), where a foreign entity buys straight from a private U.S. defense company, FMS has the U.S. Department of War – managed through the Defense Security Cooperation Agency (DSCA) – act as the intermediary.
Private U.S. defense contractors are still able to negotiate and contract directly with foreign governments or authorized international buyers. However, U.S. firms can’t simply sell to any country. Instead, DCS exports are regulated and licensed by the U.S. Department of State Bureau of Political-Military Affairs – specifically via the Directorate of Defense Trade Controls (DDTC)- under the International Traffic in Arms Regulations (ITAR) and the AECA.
Moreover, unlike FMS, which is essentially exempt from standard ITAR licensing requirements because the U.S. government runs the transaction, DCS instead requires U.S. companies to apply for and obtain specific export licenses or approvals before shipping hardware, technical data, or services.
In addition, DCS transactions that meet specific monetary thresholds, notably for major defense equipment or commercial arms sales, do still require formal notification and review by the U.S. Congress, similar to FMS.
Contractors that violate the ITAR or AECA can face severe penalties, exceeding $1.2 million per violation or twice the transaction value. In addition, corporate officers, directors, and other employees can even face up to 20 years in prison, while the government can revoke or deny existing export and manufacturing licenses.
Evolution of the FMS
The Foreign Assistance Act of 1961 established a broader framework for economic and military assistance to allies during the Cold War, laying early groundwork for modern defense logistics and support. That was followed by the Foreign Military Sales Act of 1968, which formally separated commercial arms transactions from government-to-government military sales, creating the statutory basis for what would become the core FMS framework.
The International Security Assistance and Arms Export Control Act of 1976 (Public Law 94-329) officially amended and renamed the Foreign Military Sales Act of 1968 to the Arms Export Control Act (AECA), which remains the primary legal authority for FMS today. It grants the President and the Department of State authority to control the import and export of defense articles and services.
After the end of the Cold War and the dissolution of the Soviet Union, the program transitioned from supporting a rigid bipolar alliance system to building regional partner capacity, counter-terrorism support, and interoperability with allies including those in NATO, Israel, Taiwan, Australia, Japan, and Ukraine.
The DSCA acts as the intermediary, protecting buyers from private contract risks and leveraging U.S. procurement scale. It also takes a “Total Package Approach,” whereby FMS agreements – executed via Letters of Offer and Acceptance (LOAs) frequently bundle the main platform, such as an aircraft or air defense systems, with spare parts, training, munitions, and lifecycle logistics.
Where Notifications Are Necessary
For NATO Allies, as well as the above nations, notifications to U.S. lawmakers are required for major defense equipment of $25 million or more; for other articles/services of $50 million or more; or for design/construction services of $300 million or greater.
The statutory review window for Congress is 15 calendar days.
For all other countries, notifications are required for major defense equipment of $14 million or more; for other articles/services of $50 million or more; and for design/construction services of $200 million or greater. The statutory review window is 30 calendar days.
Sales below those thresholds do not require formal congressional notification or a review period.
Congress may attempt to block a sale via a joint resolution of disapproval, though no historical attempts have successfully overridden a presidential veto. Additionally, the President can utilize emergency waiver authorities under the AECA or Foreign Assistance Act to bypass standard notification windows.
Formal notices of a FMS are sent to relevant committees and made public through the DSCA’s Major Arms Sales portal and the U.S. Department of State Arms Sales Notifications directory.
Congress can attempt to stop a notified sale by passing a joint resolution of disapproval, although it still must overcome a presidential veto to succeed. That is why numerous resolutions have been introduced over the decades to block a sale; Congress has never successfully overridden a presidential veto. The president can also bypass standard review periods using emergency national security waiver authorities.
