‘Excess defense articles’ remains a powerful authority.

Feb 14, 2024

There’s a bureaucratically complex but perfectly legal way for the administration of U.S. president Joe Biden to send to Ukraine the thing Ukrainian brigades need the most: artillery shells. Millions of them.

As Russia’s wider war on Ukraine grinds into its third year and Russia-aligned Republicans in the U.S. Congress continue to withhold U.S. funding for Ukraine, Ukrainian artillery batteries are desperately low on ammunition.

Six months ago, Ukrainian batteries were firing as many as 6,000 shells a day and, in some sectors of the 600-mile front line, even matching Russians batteries’ own shellfire.

Today, four months after Republicans began blocking aid, the Ukrainians are firing just 2,000 shells a day. At the same time, the Russians—flush with shells from North Korea and Iran—are firing up as many as 10,000 shells a day.

That firepower disparity is the main reason why Russian forces are—admittedly at great cost—slowly advancing in and around the eastern city of Avdiivka, currently the locus of Russia’s winter offensive.

Given indicted ex-president Donald Trump’s cultish hold over the Republican Party and Trump’s longstanding affinity for authoritarian Russian leader Vladimir Putin, there’s seems to be little prospect of Biden getting much, or any, fresh funding for Ukraine now that Republicans hold a slim majority in the U.S. House of Representatives.

But that doesn’t mean Biden is powerless to help Ukraine. An under-appreciated U.S. law gives the president authority to sell at a discount, or even give away, any existing weapons the U.S. military declares excess to its needs.

The law caps annual transfers of so-called “excess defense articles” at a total value of $500 million a year. But the same law doesn’t dictate how much value the president assigns to a particular weapon. He in theory could price an item at zero dollars.

Biden only rarely has used his EDA authority for Ukraine. And where he has used it, lately it’s been a part of complex “ring-trades” where the U.S. government gives excess weapons to third countries—Ecuador and Greece, to name two—then encourages those same countries directly or indirectly to give to Ukraine some of their own surplus weapons.

The United States for instance offered Ecuador ex-U.S. Army UH-60 transport helicopters, freeing up Ecuador to donate to Ukraine its surplus Mi-17 helicopters as well as rocket-launchers and air-defense systems. Greece is getting ex-U.S. Air Force C-130 airlifters and ex-U.S. Army ground vehicles on the understanding the Greeks will try to find surplus weapons to pass onward to the Ukrainians.

There’s no legal reason Biden couldn’t cut out the middleman and use his EDA authority directly to support Ukraine. And there’s no practical reason this aid couldn’t include artillery ammunition.

Generally speaking, most artillery ammunition in U.S. Army and U.S. Marine Corps stockpiles clearly isn’t excess. Indeed, the Army and Marines need all the modern shells they can get as they prepare for Ukraine-style wars.

But there’s an important exception. There are potentially four million 155-millimeter dual-purpose improved cluster munitions in storage in the United States. M483A1 and M864 DPICM rounds respectively scatter 88 or 72 grenade-size submunitions, each of which can kill or maim a soldier.

All of these shells are obvious candidates for the “excess” label. The U.S. Army years ago determined that these DPICMs—produced in large quantities between the 1970s and 1990s—are unreliable and unsafe, as any particular submunition has up to a 14-percent chance of being a dud.

The Army around 2017 declared a requirement for a new cluster shell with a one-percent dud rate. “Rounds now in the U.S. stockpile do not meet the Office of the Secretary of Defense’s goal,” wrote Peter Burke, then the service’s top ammunition manager.

That orphaned, according to a 2004 report, 402 million DPICM submunitions. Do the math. That’s as many as 4.6 million 155-millimeter shells.

The Biden administration managed to ship to Ukraine, under authorities that don’t fall under the EDA law, an undisclosed number of DPICMs—tens of thousands, perhaps—before aid ran out and Republicans blocked additional money.

The White House’s main practice, for the first two years of Russia’s wider war on Ukraine, has been to give to Ukraine weapons from U.S. stockpiles—and then immediately to replace the donated materiel with newly-produced weapons.

In that sense, almost nothing Biden has given to Ukraine actually has been free. It has cost the Ukrainians a portion of the $75 billion in financial aid the U.S. Congress approved for Ukraine before Republicans gained their majority.

If Biden abandoned this practice, he could designate all the DPICM shells remaining in U.S. Army and U.S. Marine Corps warehouses as excess—and donate them to Ukraine without needing a single dollar to replace them.

All four million or so remaining rounds should be available. Enough for years of intensive combat.

Now, there is a caveat in the EDA law. All weapons must be given away “as is, where is.” In other words, the U.S. government legally can’t pay for shipping.

But another caveat is that any weapons in Germany are excluded from this rule. Biden could ship those DPICMs to Germany aboard a few sealift ships and then declare them as excess to need before having the U.S. Army drop them off somewhere the Ukrainian armed forces would have no trouble retrieving them.

Why Biden hasn’t already put in motion this plan is unclear. It’s possible—likely, even—he prefers to hold out for $60 billion in fresh funding, which gives him more options for buying, or even developing from scratch, a wide array of weapons for Ukraine.

But once Biden decides, as many other observers already have decided, that Russia-aligned Republicans never will approve more money for Ukraine, he could lean on his EDA authority—and speed millions of shells to Ukraine’s starving batteries.

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David Axe

https://www.forbes.com/sites/davidaxe/2024/02/14/joe-biden-could-send-millions-of-artillery-shells-to-ukraine-for-free-tomorrow-and-its-perfectly-legal/?ss=aerospace-defense