Analysis of Ukraine Freedom Support Act after amendments

США-Украина

 

2014/12/17 • Politics

Article by: George Barros

I have written this report to set the record straight about the Ukraine Freedom Support Act of 2014. My colleagues and I have seen many people, and even the media, mention the bill with misunderstanding.  This comprehensive bill contains some of the strictest US sanctions against Russia to date since the Cold War, as well as multiple lethal and non-lethal provisions for Ukraine. Part of the reason there are so many rumors and misconceptions about this recently passed piece of landmark legislation arises from the fact that the bill was subjected to last minute amendments before its passage on Thursdayevening. Furthermore, the majority of reports at the time of its passage were made based off of the bill’s pre-amendment text. The public only learned of the amendments once the text for the version of the UFSA that was passed became available, which was several days later. I will now detail the notable changes that affected the bill.

I will first talk about what this bill will do if enacted by President Obama.

If enacted, here are some of the things the Ukraine Freedom Support Act of 2014 will provide:

What the Ukraine Freedom Support Act will do if enacted by President Obama

If enacted, here are some of the things the Ukraine Freedom Support Act of 2014 will do:

Lethal Aid:

  • Provisions for training, defense articles, anti-tank weapons, anti-armor weapons, crew weapons, ammunition, counter-artillery radar, fire control, range diner, tactical troop-operated surveillance drones, and other equipment pursuant to the provisions of the Arms Export Control Act[1] – Total of $350,000,000 over three years
  • Legally mandates the President to submit a timeline how defensive aid will actually get to Ukraine[2]

Sanctions:

  • Mandates the President to impose at least three sanctions against Rosoboronexport[3]
  • Mandates the President to impose at least three sanctions against Russian defense article brokers who knowingly transfers defense articles into Ukraine without Ukrainian government consent [4]
  • Mandates the President to impose sanctions against Gazprom if Gazprom withholds significant gas supplies from Ukraine[5]
  • Authorizes the President to enact a myriad of economic various sanctions against Russia 

Nonmilitary Aid:

Aid for Internally Displaced Persons:

  • Mandates the Secretary of State to submit a plan to meet the needs of internally displaced persons in Ukraine[6]
  • Mandates the President to use the voice and vote of the United States to instruct UN voluntary agencies to support assistance for internally displaced persons in Ukraine[7] 

Emergency Energy Assistance:

  • Mandates the Secretary of State and Secretary of Energy to develop a plan to work with the government of Ukraine to address the heating fuel and electricity shortages facing Ukraine[8]
  • Authorization for Secretary of State and Secretary of Energy to provide assistance to invest in solutions to secure Ukrainian energy safety though:[9]
  • Procurement and transport of emergency fuel supplies
  • Provision of technical assistance for crisis response and crisis planning
  • Infrastructure repair
  • Repair of power generating or power transmission equipment or facilities
  • Procurement and installation of compressors or electricity generation units
  • Provision of emergency weatherization and winterization materials and supplies
  • Mandates the Secretary of State and Secretary of Energy to develop a plan to work with the government of Ukraine to develop long-term plans to increase Ukrainian energy production[10]
  • Increases energy security by helping Ukraine reduce its dependence on natural gas imported from Russia
  • $50,000,000 in aggregate appropriated for fiscal years 2016 through 2018 for energy assistance[11]

 Assistance to Civil Society in Ukraine: 

  • Mandates the Secretary of State and the Administer of the United States Agency for International Development to:[12]
  • Strengthen capacity of democratic civil society in Ukraine
  • Support independent media outlets
  • Fight corruption and improve Ukrainian government transparency and accountability
  • Support organized democratic organizing and election monitoring in Ukraine
  • $20,000,000 appropriated for fiscal year 2016 to assist this civil society in Ukraine 

Expanded Broadcasting in Former Soviet Republics: 

  • Mandates the Chairman of the Broadcasting Board of Governors to submit a plan and cost estimate to increase Russian-language broadcasting into countries of the former Soviet Union funded by the United States in order to counter Russian propaganda.[13]
  • Prioritizes expanding Voice of America and Radio Free Europe/Radio Liberty[14]
  • $10,000,000 appropriated for each of fiscal years 2016 through 2018 for this section[15] 

Support for Russian Democracy and Civil Society Organizations: 

  • Mandates the President to submit a strategy and mandates the Secretary of State to work with nongovernmental or international organizations to:[16]
  • Improve democratic governance, transparency, accountability, and anti-corruption in Russia
  • Strengthen democratic institutions and civil society organizations in Russia
  • Expand uncensored internet access in Russia
  • Expand free and unfettered access to independent media of all kinds in Russia
  • $20,000,000 appropriated for fiscal year 2016 through 2018 to assist this section in Russia 

 

Why the Ukraine Freedom Support Act is the Best Possible Bill 

I will now provide some background history on this bill to you naysayers who think the Ukraine Freedom Support Act is worthless because it is not strong enough:

The Congress wanted to be pragmatic in passing a bill into law to grant the Ukrainian people the aid they need. This being said, Senators Corker and Menendez knew from the beginning that they would have to write a bill that would be passable. A stricter bill always looks better on paper, but is ultimately worthless if it is unpassable. Senator Bob Corker learned this with S.2277 – the Russian Aggression Prevention Act of 2014. The Russian Aggression Prevention Act of 2014 is a very good pro-Ukraine bill and was very strict- so much so to the point that lawmakers were doubtful if Congress would pass such a strict bill, and even if Congress did, the President would certainly veto it.

After the unsuccessful S.2277, Senator Corker teamed up with Senator Menendez to introduce S.2828- the Ukraine Freedom Support Act of 2014. Although the UFSA was formally introduced by Senator Bob Corker and Senator Robert Menendez, the UFSA is by no means the product of one or two individuals. The Ukraine Freedom Support Act borrowed language and provisions from many pieces of proposed pro-Ukraine legislation from both the House, and the Senate- this is visible as some text from S.2277 was reused in S.2828. Contributions came from both Democratic and Republican members and was the product of combining the best pieces of legislation that D.C. lawmakers could create. In its inception, the UFSA was a compilation of multiple lawmakers’ contributions- this resulted with the bill’s instantaneous strong bipartisan support and ultimate passage. More importantly, the UFSA was purposely designed as the strongest pro-Ukraine bill that would be passable through the White House.

 

What  amendments were made to the bill

With that being said, I will now discuss the amendments made to the bill.

The majority of the changes the amendments made to the Ukraine Freedom Support Act from that occurred are mostly minor technical formalities, clarifications, and expansions on definitions- nothing very major or policy-changing. There are, however, a few major changes that the amendments brought upon the bill. The major changes from the amendment are:

  • The provision for the major non-NATO ally status for Ukraine, Georgia, and Moldova, with regards to the Foreign Assistance Act of 1961 and the Arms Export Control Act was removed.
  • The appropriated funding amount for military assistance for the government of Ukraine was decreased.
  • The language of a few economic sanctions were weakened.
  • The appropriated funding for emergency energy assistance was removed.

I will now address all of these changes and the affects the amendment will have on the policy, with first regards to removal of the section providing Ukraine major non-NATO ally status. From a legislative-strategy point of view, I believe that the MNNA status was never intended to pass President Obama to begin with, since it also included MNNA status for Georgia and Moldova. As of now most Americans care very little about Georgia and Moldova, which for the most part are perceived as relatively stable. I am of the opinion that Senator Corker included the MNNA for Ukraine as a bartering chip to ensure the passage of the rest of the bill with President Obama.

This is a common practice and it was brilliant. The U.S. Congress has had no problem showing solidarity for Ukraine. The MNNA status was not sacrificed in the name of bipartisanship in Congress, but rather through negotiation with the White House. Additionally, the original UFSA text before the amendment stated, “Ukraine, Georgia, and Moldova are each designated as a major non-NATO ally for the purposes of this Act and the Arms Export Control Act.

Based on this text, one can make the legal argument that Ukraine would not totally become a major non-NATO ally, but simply a major non-NATO ally for the purpose of one other law- thus not granting Ukraine the full benefits of being a full major non-NATO ally. There is also a legal school of thought that believes it is technically up to the President, not Congress, to designate a country as a major non-NATO ally. Therefore the implication is that it is also possible that the provisions for MNNA in the UFSA was simply a linguistic formality.

The appropriated funding for the section dealing with “Increased Military Assistance for the Government of Ukraine,” was also altered. Again, this was most likely to ensure presidential enactment. Prior to amendment, the UFSA appropriated $350,000,000 each for fiscal years 2015, 2016, and 2017 just for military assistance- a grand total of $1,050,000,000 over the span of three years. The amendment changed the amount so that for military assistance there is appropriated $100,000,000 for fiscal year 2015, $125,000,000 for fiscal year 2016, and $125,000,000 for fiscal year 2017- a grand total of $350,000,000 over a span of three years. The difference is $700,000,000 less.

Now onto economic sanctions. In the UFSA there are two different sections that deal with economic sanctions. One section is titled “Sanctions on Relating to the Defense and Energy Sectors of the Russian Federation,” and the other is titled, “Sanctions on Russian and other Foreign Financial Institutions.” I can happily report that there were no compromises to the section regarding Russian financial institutions, but there was one sanction weakened in the section regarding the Russian energy sector. Before the amendment, in Section 4 of the UFSA, the President was legally mandated to impose at least three sanctions with regards to Russian crude oil export[17], but after the amendment the mandate was absolved as the word “shall,” was changed to the word, “may,”[18] thus resulting with only an authorization.

Finally in the section regarding “Expanded nonmilitary assistance for Ukraine,” the subsection that originally appropriated $50,000,000[19] to address the energy crisis in Ukraine was removed. This does not necessarily mean that the program will not get its funding, as the Secretary of State and Secretary of Energy are required to work on this project.[20] It just means the program has no explicit independent appropriation and that the Secretary of State and Secretary of Energy will have to tap into their own departments’ funds to carry out the required tasks.

These compromises are an unfortunate part of the legislative process, but we have strong evidence that suggests without them, this bill would not have passed the White House. America may not be ready to make Ukraine a major non-NATO ally just yet, but we have successfully set distinct policy change in foreign policy to Ukraine. This was a monumental step in the right direction and we’ve paved the path for future legislation to designate Ukraine as major non-NATO ally.

Up until this point US policy has been to provide Ukraine only non-lethal assistance, but if enacted, this piece of landmark legislation will provide Ukraine with the arms she needs and will save countless lives.

The White House has resisted arming Ukraine, fearing escalation of the conflict, but this bill will make it extremely difficult for the White House to continue this policy.

Once again, in short, the Ukraine Freedom Support Act of 2014 does the following: 

  • Makes provisions for lethal defensive aid for Ukraine
  • Mandates the President to submit a timeline how lethal aid will actually get to Ukraine
  • Mandates the President to impose certain economic sanctions
  • Authorizes the President to impose certain economic sanctions
  • Holds Russia accountable for INF Treaty violations
  • Helps improve and repair Ukrainian electricity infrastructure
  • Helps develop Ukrainian oil and natural gas reserves
  • Helps stimulate private investment in reconstruction of Ukraine
  • Helps provide assistance to internally displaced persons in Ukraine
  • Helps strengthen organized Ukrainian democracy
  • Helps fight corruption in Ukrainian government
  • Helps counter Russian propaganda
  • Legally mandates POTUS to direct US World Bank Executives to reconstruct and develop Ukraine
  • Helps improve accountability, rule of law, and anti-corruption efforts in Russia
  • Authorizes total of $510,000,000 in various appropriations over fiscal years 2015, 2016, and 2017. (if I did my addition correctly)

The referenced documents in this report are available here:

  1. S.2277- Sen. Corker’s strict bill: https://www.congress.gov/113/bills/s2277/BILLS-113s2277is.pdf
  2. S.2828- UFSA prior to amendment: https://www.congress.gov/113/bills/s2828/BILLS-113s2828rs.pdf
  3. H.R. 5859- UFSA after amendment: https://www.congress.gov/113/bills/hr5859/BILLS-113hr5859eh.pdf
[1] H.R.5859: Sec. 6 subsec a
[2] H.E.5859: Sec. 6 subsec b
[3]H.R.5859: page 5, lines 16-20
[4] H.R.5859: Sec.4 subsec, a paragraph 2
[5] H.R.5859: Sec. 4 subsec, b paragraph 3
[6] H.R.5859: Sec. 7 subsec a, paragraph 1
[7] H.R.5859: Sec. 7 subsec a, paragraph 3
[8] H.R.5859: Sec. 7 subsec c, paragraph 1
[9] H.R.5859: Sec. 7 subsec c, paragraph 1, subparagraph C
[10] H.R.5859: Sec. 7 subsec c, paragraph 2
[11] H.R.5859: page 31, line 17
[12] H.R.5859: Sec. 7 subsec d, paragraph 1, subparagraphs A-D
[13] H.R.5859: Sec. 8 subsec a
[14] H.R.5859: Sec. 8 subsec b
[15] H.R.5859: Sec. 8 subsec e
[16] H.R.5859: Sec. 9 subsec a
[17] S.2828 as reported on September 18th: page 9, line 6
[18] H.R.5859: page 8, line 11
[19] S.2828 as reported on September 18th: page30, lines 4-11
[20] H.R.5859: page 27, lines 2-13

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  • Paul P. Valtos

    So what the hell does this do after all of the gibberish amendments? Is congress in the business of supporting the paper making companies? Cut the bullshit and stop hiding the lack of work you guys do.

  • Don Casavant

    This bill is not all that I wanted for Ukraine, however it does provide the most needed items, weapons to kick Russia’s ass if they even think of invading more Ukrainian territory! Something is better than nothing any day of the week!

    • Ricardo Galvan

      Hopefully with the Republican Congress starting next year, more can be given. I hope that this is the case.

      • Don Casavant

        My thoughts exactly!

  • Candice

    This should have been Europe’s job to cover not ours. Angela Merkel is the biggest failure here and anyone else waiting to make a difference until others got involved.

  • Irakli Bokuchava

    This bill is very progressive step towards needs of Ukraine.It is US response on Russian brutal aggressiveness.Major non-NATO ally status to Georgia and Moldova also gives to bill extraordinary importance.At last US confirms its strategic support first of all to Ukraine and also to Georgia and Moldova.