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A nation must think before it acts.
As the United States prepares for the July 4 holiday, Senate Majority Whip John Thune, a Republican from South Dakota, proposed a curious amendment for the Fiscal Year 2021 National Defense Authorization Act (NDAA), the omnibus spending bill that funds the Department of Defense. Thune’s amendment would appropriate money to purchase—if it were available—the S-400 air and missile defense system that Ankara purchased from Moscow in December 2017, and ensure that any such purchase would not run afoul of American laws against procuring Russian origin defense equipment. The amendment may not make it into the final version of the Senate’s NDAA, and it is unlikely to survive conference with the House. The fact that such a proposal is being floated—no matter how unlikely—is indicative of the considerable challenges both Turkey and the United States now face in having to grapple with Ankara’s S-400 purchase.
Ankara’s purchase of the S-400 has divided the two allies, and has resulted in Turkey’s removal from the F-35 consortium, the multinational co-production arrangement that underpins production of the world’s first 5th generation fighter designed for export. The S-400 radar can collect sensitive data about the F-35, which relies on its low observability to maintain a technological and competitive edge over the latest fighters that Russia and China have built and are now flying.
The S-400 purchase has also triggered a bureaucratic battle between Congress and the White House over the imposition of mandatory sanctions, listed under the Countering America’s Adversaries through Sanctions Act (CAATSA). This legislation was written and passed in July 2017 to tie the hands of President Donald Trump after it became clear that he wanted to unilaterally lift sanctions imposed on Russia for its intervention in the 2016 presidential election in exchange for more cordial ties.
CAATSA has no presidential waiver, which is typically included in sanctions legislation to give the president flexibility to waive their imposition if it is deemed in the country’s national interest. The law also includes so-called secondary sanctions, which threaten third countries with punitive action if they engage in a “significant transaction” with Russian entities linked to the Ministries of Defense and Intelligence—the two entities, whose proxies engaged in election interference in 2016. Turkey emerged as the first test case for the secondary legislation provision, after it ignored American warnings.
The purchase triggered Turkey’s removal from the F-35 program, a multi-billion dollar loss for Turkish aerospace firms, and a long-term challenge for the Turkish Air Force to plan for future fighter procurement. As it stands, Ankara has no future fighter to replace its aging fleet of F-16s, outside of a domestic program, dubbed TF/X that is almost certainly to be delayed and experience significant growing pains as the program matures.
Trump has resisted CAATSA since it was passed, arguing (not without merit) that the legislation is unconstitutional because the law makes it difficult for the executive to waive sanctions without congressional review. This language was inserted precisely because there is bipartisan concern about the American president’s proclivities towards Vladimir Putin and because of his impulsive way of governing that often results in actions being taken quickly and without much deliberation with senior staff, or intra-bureaucratic collaboration.
Throughout the process, the United States sought to dissuade Turkey from purchasing the S-400, holding meetings with Turkish officials and eventually pushing an alternative offer. That offering included a two-phased purchase of Western-made missiles, beginning with the rapid transfer of the National Advanced Surface to Air Missile System (NASAMS), followed by the transfer of two off-the-shelf Patriot batteries. This timeline was designed to meet Turkish demands to rapidly field a long-rage air defense system. As these two Patriot batteries were being prepared for export, U.S. firms and Ankara would engage to build certain Patriot components inside Turkey, as part of a technology transfer and co-production arrangement. This proposal fell flat, despite the United States offering more incentives than Russia has offered to Turkey for indigenous production of S-400 components.
Russia delivered the first S-400 components to Turkey in July 2019, publicly flaunting the deliveries by inviting state-allied media to visit the air base and watch the delivery. The delivery was supposed to trigger CAATSA, but has instead only resulted in Turkey’s removal from the F-35 consortium.
Trump has sought to hold off on levying CAATSA sanctions, proposing an interim solution that would allow for Ankara to avoid punitive action if it kept the missiles in storage. The Turkish government, at first, dismissed this proposal, but as its economy has strained from the COVID-19 pandemic, it has tacitly endorsed this plan, choosing not to deploy the missile system in April 2020, as was initially intended. As of today, the S-400 missiles appear to be in storage at Akinci air base, but the components have been tested and the system could very easily be deployed.
However, it is unclear how long Ankara will choose to keep these missiles in storage, especially after Turkish efforts to negotiate a foreign exchange swap with the U.S. Federal Reserve failed, despite multiple direct appeals by Turkish President Recep Tayyip Erdogan to Trump in a series of phone calls over the past two months. Against this backdrop, the Thune amendment would seem to suggest that Congress is trying to get creative and figure out a way to move past the S-400 issue. However, this legislation may not even make it into the NDAA, and even if it were included, the chances that Ankara agrees to sell them to the United States are remote. Russia, too, has probably included a series of end-user terms in its purchase agreement with Ankara to preclude any third-party transfer without consent from officials in Moscow.
Thus, the language being proposed for inclusion into the NDAA that is worth watching was authored by Senator James Risch, a Republican from Idaho, and Senator Bob Menendez, a Democrat from New Jersey, which would force Trump’s hand and mandate the imposition of sanctions within 30 days of the NDAA’s passage. For Turkey, the issue is that its narrow, short-term avoidance of CAATSA sanctions has come at the expense of its relationship with Congress. It has also positioned Trump, an unpopular incumbent facing a daunting reelection challenge, as the only bureaucratic block on the government’s imposition of sanctions. If Trump were to lose, a new administration may not be as friendly. Further, as news about Russia grows worse—particularly after revelations that the Russian GRU may have paid militias in Afghanistan to kill American soldiers—the bipartisan calls to punish Moscow will grow more sharp. And CAATSA was meant to ensure that Russia would face hurdles if it sought to export defense equipment. Turkey, while not the target of CAATSA, could be made an example of to dissuade other countries from purchasing Russian defense equipment.
The challenge, of course, is that Turkey is a member of the North Atlantic Treaty Organization (NATO), and thus any degradation of its air power is deleterious for the Alliance writ large and any fiscal downturn will undermine defense spending, a key priority for the Alliance. Thus, any sanctions on Turkey risk eroding collective security at a time when tensions with Moscow are acute. There is ample incentive to try to avoid sanctioning Turkey. However, it is certain that Congress will demand some restitution on the S-400 issue, both from Turkey and the White House. In this sense, Trump’s shielding of Turkey has made things worse because his refusal to follow a law that Congress has passed has angered its members and Congress is now looking at ways to ensure that sanctions are imposed, are hard to lift, and will have a greater negative impact than if Trump had just acted quickly after the S-400 agreement was signed.
Projecting forward, whether Trump wins reelection or he loses to Joe Biden, the S-400 issue will not go away. The issue will need to be managed and congressional anger will remain in place, especially if the fallout from the potential killing of Americans in Afghanistan continues to fester. One option would be to fashion an agreement to verify Turkey’s non-deployment of the system. An option to consider would be to reach agreement with Ankara on one declared deployment site, which could then be monitored with commercial satellite imagery and allow for the easy sharing of unclassified satellite imagery between the two allies. To verify this imagery, the two sides could reach agreement on some sort of mechanism for a once-a-year site visit, perhaps administered through a multinational set of teams working under the NATO umbrella. This would allow the Alliance to play a role in verifying non-deployment, a shared interest across the Atlantic and amongst the European operators of the F-35.
This proposal would entail a concerted effort led by the White House to “make the case for Turkey” with skeptical members of Congress. However, this task is made harder by the Trump administration’s refusal to abide by the law, as evidenced by the continued bipartisan support for forcing Trump to sanction Turkey. The S-400 issue remains a serious impediment to improving U.S.-Turkish relations. Senator Thune has, without question, proposed creative language to try to tackle this problem. It may or may not work, and Ankara (and Russia) will likely preemptively signal its displeasure with the idea. It is a worth a shot because the alternative is sanctions, and those sanctions could lead to unintended outcomes that further fracture the U.S.-Turkish relationship.
The views expressed in this article are those of the authors alone and do not necessarily reflect the position of the Foreign Policy Research Institute, a non-partisan organization that seeks to publish well-argued, policy-oriented articles on American foreign policy and national security priorities.