December 7, 1971
Memorandum for Mr. Henry A. Kissinger The White House
From: Theodore Eliot Jr
Subject: Jordanian F-104's for Pakistan
At the WASAG meeting on the morning of December 6, the question was raised as to the legal and policy problems involved in responding to a Jordanian request for a USG consent to transfer F-104's to Pakistan.
Since the United States provided the F-104's now in Jordanian possession, USG consent would be necessary for their transfer to any third country, including Pakistan. Under the present U.S. policy of suspending all arms transfers to Pakistan, the USG could not consent to such a transfer. Section 9 of Public Law 91-672 (January 12, 1971), amending the Foreign Military Sales Act, provides:
"In considering a request for approval of any transfer of a defense article to another country under section 505 (a) (1) and (a) (4) of the Foreign Assistance Act of 1961, and section 3 (a)(2) of the Foreign Military Sales Act, the President shall not give his consent to the transfer unless the United States itself would transfer the defense article under consideration to that country."
The United States has, since the 1965 Indian-Pakistani hostilities, refused to supply or to license the export of lethal end items for Pakistan. The only exception to this policy since 1965 is the so-called one-time exception which was announced in October 1970. Under this one-time exception, the United States offered to supply 300 armored personnel carriers and approximately 20 aircraft. The aircraft offered were F-104's but, after the Pakistanis expressed a preference for F-Ss, the United States indicated a willingness to supply F-5's under the one-time exception. The United States offer of aircraft was never formally accepted by the Pakistani Government, but a contract for armored personnel carriers was signed in January 1971. Following the outbreak of fighting in East Pakistan in late March 1971, the USG announced, among other things, that it would hold in abeyance any further action on the one-time exception. This policy was formally confirmed in a public statement of policy issued on July 1, 1971.
Conclusion:
In view of the foregoing, the President could not give his consent to the transfer of Jordanian F-104's to Pakistan unless he were also willing to establish, as a matter of policy, the USG's willingness to supply the F-104's directly. Such a policy decision would be consistent with the October 1970 one-time exception, but would conflict sharply with our general policy since 1965 against supply of lethal end items and, specifically, with the July 1, 1971 announcement that action on the one-time exception would be held in abeyance. It would also conflict with the prohibition on military assistance and sales to Pakistan, in the pending aid legislation, which has been approved by both Houses.
Furthermore, the transfer of these aircraft to Pakistan would create a serious deficit in Jordan's fighter inventory. Our consent could lead to a Jordanian expectation that the USG would replace these aircraft. At present there is no suitable aircraft available. Even if there were, to replace them through MAP would, in view of the present shortage of funds, require postponing the supply of APC's, tanks, and engineering equipment which the Jordanian army badly needs.
Theodore L. Eliot, Jr