When the Marines evacuated the U.S. Embassy in Sanaá, Yemen, there were reports that they left some of their weapons behind, in large measure because they were leaving on a commercial flight. At first the military said that crew-served weapons and machine guns were destroyed before departure, but that M-9 pistols and M-4 carbines were handed over to Yemenis before the boarded the plane.
Realizing that this was perhaps a giant SNAFU, the military later revised its story to take care of the pistols and the carbines
“Upon arrival at the airfield, all personal weapons were rendered inoperable in accordance with advance planning,” the statement said. “Specifically, each bolt was removed from its weapons body and rendered inoperable by smashing with sledgehammers. The weapons’ bodies, minus the bolts, were then separately smashed with sledgehammers.”
There you have it: nothing to see here because the military used the smashed-to-bits exception which authorizes a U.S. person to retransfer a defense article to a foreign end user as long as someone takes a sledgehammer to it first. You may be wondering if there is such an exception, and the answer is maybe yes and maybe no.
A few initial observations are in order. First, the Arms Export Control Act applies to the military and active duty troops just as it does to everyone else. Second, the ITAR prohibits unlicensed transfer of defense articles from one foreign end use to another foreign end use without a license. So, unless there is a sledgehammer exception, we have a problem here.
The only possible source for the sledgehammer exception is section 126.4, which states:
The approval of the Directorate of Defense Trade Controls must be obtained before defense articles previously exported pursuant to this exemption are permanently transferred (e.g., property disposal of surplus defense articles overseas) unless the transfer is pursuant to a grant, sale, lease, loan or cooperative project under the Arms Export Control Act or a sale, lease or loan under the Foreign Assistance Act of 1961, as amended, or the defense articles have been rendered useless for military purposes beyond the possibility of restoration.
At first glance, this appears to support the sledgehammer exception. The military says it rendered the bolts “inoperable.” The rest of the weapons, however, were just smashed. So, I think we don’t have to worry about the bolts, but did smashing the rest of the weapons with a sledgehammer render every other part and component of those weapons “useless for military purposes beyond the possibility of restoration”? Those parts and components are defense articles in Category I(h) and each and every one of them needed to be sledgehammered beyond the possibility of restoration. That’s a lot of sledgehammering, and it seems to me unlikely that actually happened before the Marines hopped onto their flights out of Yemen.