WASHINGTON ― Shortly after Hamas killed about 1,200 Israelis — mostly civilians — and abducted more than 200 hostages, Biden administration officials told U.S. lawmakers to prepare their constituents for a long war in Gaza.
In the days after the Oct. 7 attack, the Defense Department began rushing weapons to Israel, including Small Diameter Bombs, precision-guided munitions, armored tanks, artillery rounds and ammunition.
The White House and the Pentagon both said at the time they would set “no red lines” for Israel’s military activities in Gaza. Defense Secretary Lloyd Austin stressed on Oct. 12 the U.S. had “not placed any conditions on the provision” of U.S. weapons and assistance for Israel.
More than three months later, Israel’s attacks have killed over 24,000 Palestinians — mostly civilians — with more than 61,000 injured and thousands more missing or buried under rubble. The attacks have resulted in the largest Palestinian displacement since 1948, forcing at least 85% of Gaza’s 2.3 million people into increasingly smaller, unlivable areas amid scenes aid agencies have described as “apocalyptic.”
Amid the destruction, U.S. President Joe Biden has gradually urged Israeli Prime Minister Benjamin Netanyahu to do more to limit civilian casualties. Addressing Democratic donors in December, Biden criticized Israel for “indiscriminate bombing” of Gaza.
But Biden has been hesitant to use one tool at his disposal to steer the conflict: He’s yet to impose conditions on the $3.8 billion in annual military assistance Israel receives from the United States. Now, a growing group of Democratic lawmakers is pushing him to put more pressure on Israel by using existing U.S. laws and regulations as Congress considers passing an additional $14 billion in aid to the close U.S. ally.
A series of human rights laws, sponsored by former Sen. Patrick Leahy, D-Vt., has ensnared numerous military units in U.S.-backed countries, including Ukraine, every year since its inception nearly three decades ago. Leahy, congressional staffers and former administration officials have sought to apply these laws to Israel while noting Biden is not adhering to his own internal arms transfers policy.
“The Biden administration continues to provide weapons to the government of Israel despite possible violations of international humanitarian law and massive, extensive, devastating civilian harm in Gaza,” John Chappell, an advocacy and legal fellow at the Washington-based Center for Civilians in Conflict, told Defense News. “It’s willing to softly criticize the operations, but it’s unwilling to use the many billions of dollars in leverage that it has over the Israeli government to actually change outcomes.”
The Biden administration hasn’t disclosed the exact breakdown and dollar amount of weapons sent to Israel from U.S. stockpiles since Oct. 7, but some of the largest defense contractors — such as Boeing and General Dynamics — are expected to receive additional contracts to replenish stocks of bombs and artillery. And if the Biden administration chooses to restrict aid to Israeli forces using the Leahy laws, it could impact up to $3.3 billion in annual foreign military financing for Israel, at least $2.5 billion of which must be used to buy weapons from U.S. defense contractors.
‘The Leahy law must be applied’
In 1997, Congress passed the initial Leahy laws, a series of human rights statutes introduced by the former Vermont senator during his lengthy tenure in Congress.
The laws cut off security aid to specific units of foreign militaries if the Pentagon and the State Department determine a country has committed a gross violation of human rights, such as shooting civilians or summarily executing prisoners. The aid remains off limits until the country brings those responsible to justice. The goal is to leverage U.S. military aid as an accountability measure to improve allies’ human rights records.
At least 30 countries have found themselves in the crosshairs since 2017, when the State Department began publishing a non-comprehensive annual list of foreign forces ineligible for U.S. security aid under the Leahy laws. For instance, Azerbaijan’s department fighting organized crime became ineligible for U.S. assistance in 2022; a State Department human rights report that year noted “numerous credible reports of torture” by the agency.
Multiple former administration officials and congressional staffers noted no Israeli security force has lost assistance, despite credible reports of human rights abuses, such as torturing prisoners or killing Palestinian civilians.
“There is a file of correspondence that Sen. Leahy sent to various administrations over a period of more than two decades raising concerns about the failure of the administration — and it’s been both Republican and Democrat — to apply the Leahy laws with respect to Israel,” Tim Rieser, Leahy’s longtime staffer who spearheaded the laws, told Defense News.
Rieser now works for Leahy’s successor, Sen. Peter Welch, D-Vt., who has joined efforts to enforce conditions on Israel aid.
Leahy voiced the same complaint in a November interview with the Vermont-based News & Citizen, noting that “shooting civilians and targeting civilian infrastructure” constitute human rights violations.
“What is being done to apply the Leahy law now?” Leahy asked. “I don’t know. I know past administrations have been too concerned to do it. It should apply to the Israeli defense forces.”
A December Amnesty International investigation found two separate Israeli strikes on Gaza homes in October killed a combined 43 civilians. Both used Boeing-manufactured Joint Direct Attack Munitions to convert the 1,000-plus pound bombs into precision-guided munitions, according to the investigation, which found no Hamas or militant activity in either home.
Sarah Harrison spent 2017-2021 as a former associate general counsel at the Defense Department, and for most of that time she was the lead attorney for the Leahy laws, vetting countries that receive U.S. security aid to ensure human rights compliance. She noted multiple administrations have not applied the Leahy laws evenly to Israel.
She said she once expressed dismay to a senior Pentagon official over the department’s decision not to enact consequences over a video depicting Israeli forces committing what she and others at the Pentagon determined to be a gross violation of human rights.
“It’s Israel, Sarah,” she recalled the official saying.
Harrison, now a senior analyst at the International Crisis Group think tank in Washington, declined to describe the footage.
Josh Paul, the former congressional affairs director at the State Department’s Bureau of Political-Military Affairs, which oversees arms transfers, also participated in Leahy vetting for Israel. He resigned in October to protest U.S. munitions transfers amid the skyrocketing civilian death toll in Gaza.
He told Defense News the typically preemptive vetting process is reversed for Israel, where allegations are reviewed only after the U.S. provides the assistance.
“In the regular process, it takes one person, one flag, to stop the provision of military assistance,” Paul told Defense News. “In the Israel Leahy vetting forum, it takes a consensus of all stakeholders to stop the provision of military assistance. And again, that consensus has never been reached despite what I would call some very compelling and concerning and credible allegations of gross violations of human rights.”
He said the State Department in 2021 raised an allegation of a gross human rights violation with the Israeli government, documented in a report by Defence for Children International–Palestine. The report alleged an Israeli interrogator tortured and raped a 15-year-old Palestinian boy in a detention camp in West Jerusalem.
Shortly thereafter, multiple reports indicate, the Israel Defense Forces raided Defence for Children International’s offices, removing computers and declaring it a terrorist group alongside five other nongovernmental organizations.
A State Department spokesperson said that “any military or security force unit around the world, including in Israel, that is credibly alleged to have committed an un-remediated gross violation of human rights undergoes Leahy vetting via the normal process by the department prior to the transfer of any U.S. assistance.”
The State Department’s Bureau of Democracy, Human Rights, and Labor has reviewed hundreds of thousands of requests for security assistance worldwide, screening foreign military units against a large internal database that tracks human rights violations across the globe. U.S. embassies are generally aware of units that have committed gross human rights violations and therefore usually don’t propose them for security aid eligibility.
But the congressional staffers and former officials say the overwhelming volume of military aid provided directly to a handful of countries makes it difficult to trace the flow of assistance to each individual unit — the component used to track eligibility for security assistance under the Leahy laws.
Those countries included Israel with an annual $3.8 billion in security assistance; Egypt with a yearly $1.3 billion; and Afghanistan, which received a cumulative $73 billion in military aid from 2001 until Biden’s 2021 withdrawal. Since Russia’s full-scale invasion in 2022, Ukraine has joined that list with a total $61.4 billion in U.S. military aid in fiscal 2022 and fiscal 2023.
Israel, Egypt and Ukraine signed agreements in December 2021, stating they will not transfer U.S.-provided security assistance to an ineligible unit if the State Department instructs them against doing so under the Leahy laws.
The department has submitted a list to Ukraine of its military units that are ineligible for assistance under the 2021 Leahy agreement, multiple sources told Defense News. But it has not done the same for Israel, and it’s unclear whether Egypt received a list, as the State Department did not answer questions about these agreements.
The agreements came as Leahy, the former Senate Appropriations chairman, dialed up pressure on the Pentagon and the State Department to close the traceability loophole during his final years in Congress.
The State Department first convened the Israel Leahy Vetting Forum in early 2020 to address the loophole, tracking allegations of human rights abuses in an Excel spreadsheet. The State Department set up similar Leahy vetting processes for Ukraine and Egypt.
“The more formal kind of process could still be contentious at times, but somebody was finally managing an orderly and organized review of Israel-related Leahy cases,” Harrison said.
The Pentagon and the White House did not respond to Defense News’ requests for comment.
“The U.S. can condition aid, and does so with other partners,” said Mick Mulroy, the former deputy assistant secretary of defense for the Middle East under the Trump administration, who is now a nonresident senior fellow at the Middle East Institute think tank. “But I believe it is unlikely to do so here. It will likely continue to push for a transition to lower-intensity combat operations and a change in tactics that have caused so many civilian casualties in Gaza.”
Biden has not publicly addressed the Leahy laws, but defended his approach after protesters calling for a cease-fire interrupted his speech at Emanuel African Methodist Episcopal Church in Charleston, South Carolina.
“I have been quietly working with the Israeli government to get them to reduce and significantly get out of Gaza using all that I can to do that,” Biden said.
Israel denied wrongdoing in 2022 after its soldiers fired 16 rounds and killed Shireen Abu Akleh, a Palestinian-American journalist in the West Bank wearing a press vest.
The Israel Defense Forces initially blamed Palestinian militants, only to backtrack and concede Israeli soldiers killed her after further evidence emerged. Later, the FBI opened an investigation into her death, but Israel refused to cooperate.
These incidents also did not trigger penalties under the Leahy laws.
“Whether her killing was intentional, reckless or a tragic mistake, there must be accountability,” Leahy said after her killing. “And if it was intentional, and if no one is held accountable, then the Leahy law must be applied.”
Chappell told Defense News that “it’s often necessary for Congress to step in, maintain oversight, find more information about how laws and policies are translated into practice — and there’s a pretty uneven record.”
The top four lawmakers who oversee and approve Israel’s annual $3.3 billion in Foreign Military Financing aid did not respond to Defense News’ requests for comments on the implementation of Leahy laws.
Those lawmakers include Democrat Rep. Barbara Lee of California, a progressive running for Senate who has called for a cease-fire, and Republican Sen. Lindsey Graham of South Carolina, who said Israel should “level” the Gaza Strip a few days after Hamas’ Oct. 7 attack. The others are Sen. Chris Coons, D-Del., and Rep. Hal Rogers, R-Ky.
The White House’s recently updated policy on transferring conventional arms provides a broader tool to leverage human rights conditions on weapons transfers. This policy applies to foreign military sales or arms transfers from U.S. stockpiles, neither of which are covered under the executive branch’s interpretation of the Leahy laws.
Some critics say the president is not adhering to this policy, which the White House updated a year ago to place more emphasis on human rights.
The White House’s new policy says the State Department will not authorize an arms transfer if it assesses it is “more likely than not” the recipient country will use the weapons to commit or facilitate the commission of actions such as genocide; crimes against humanity; breaches of the Geneva Conventions, including attacks directed against civilians; or serious violations of international law.
The updated guidance also states the U.S. “will exercise restraint in international arms transfers that may be destabilizing or threaten international peace and security.”
“The Biden administration has repeatedly said through its spokespeople that the U.S. is not assessing Israeli compliance with the law of armed conflict,” said Chappell, adding that this is “directly at odds” with the policy’s requirement to monitor the use of U.S.-origin weapons.
While the State Department told Defense News “Israel is no exception” to the conventional arms transfer policy, including “civilian protection considerations,” it did not respond to reports of civilian targeting from human rights watchdogs. White House spokesman John Kirby reiterated in January the Biden administration is not formally assessing Israeli compliance with international law.
“The downside of the conventional arms policy is that it is just a policy,” Paul said. “It is certainly not U.S. law, and therefore the executive branch is free to set it aside as it wishes, certainly in cases like this where there’s presidential support to advance arms transfers.”
Additionally, the State Department in August announced an initiative to mitigate civilian harm by investigating claims of allies and partners using U.S. military equipment to harm civilians. It’s a twin component to the Pentagon’s own civilian harm mitigation efforts, finalized in December, to investigate civilians killed by U.S. forces.
Sen. Elizabeth Warren, D-Mass., led four other senators in sending a letter to Biden in December, pushing him to enact these civilian harm mitigation efforts to “ensure that existing guidance and standards are being used to evaluate the reports of Israel using U.S. weapons in attacks that harm civilians.”
They also criticized “insufficient transparency around weapons transfers to Israel” via the Direct Commercial Sales process. The letter noted Israel is one of the few countries allowed to use foreign military financing to buy weapons directly from U.S. defense contractors, thereby sidestepping congressional and public notification requirements.
When the State Department approved a $106 million foreign military sale to Israel on Dec. 9, it invoked emergency authorities allowing it to bypass congressional review for nearly 14,000 120mm tank cartridges.
Former President Donald Trump last invoked emergency authorities in 2019 to bypass congressional review of an $8.1 billion foreign military sale to Saudi Arabia, the United Arab Emirates and Jordan.
The Biden administration again invoked those same emergency authorities on Dec. 29, bypassing review for a $147.5 million sale to Israel of fuzes, primers and chargers needed to operate 155mm shells. Human rights organizations, arms control groups and aid agencies have appealed to the Biden administration to stop these artillery transfers given their “indiscriminate” harm to civilians in urban Gaza.
Sen. Tim Kaine, D-Va., immediately criticized Biden’s second emergency sale on X, formerly Twitter, writing: “Bypassing Congress = keeping the American public in the dark.”
Other Democrats on the House Foreign Affairs, Armed Services and Intelligence committees are also asking the White House to pressure Israel.
Rep. Jason Crow, D-Colo., led five of his colleagues in a December letter to Biden criticizing the crisis in Gaza and urging him “to continue to use all our leverage to achieve an immediate and significant shift of military strategy and tactics in Gaza” — though the letter made no explicit reference to conditions on U.S. assistance.
Another $14 billion
With the destruction mounting in Gaza, Senate Democrats discussed placing conditions on Biden’s $14.1 billion military aid request to Israel during a weekly caucus meeting in late November.
The discussion took place at the behest of Sen. Bernie Sanders, I-Vt., who later told Defense News the discussions in part involved applying the Leahy laws to military aid for Israel.
But when Democrats ultimately released their roughly $110 billion military aid bill, it made no reference to existing or new conditions for Israel, even as it maintained stringent oversight of the $61 billion Ukraine portion of the bill. Instead, the bill included the Biden administration’s requested provisions to further relax congressional oversight for Israel.
A small group of Democrats have taken to using other provisions in the 1961 Foreign Assistance Act — the same statute the Leahy laws eventually amended — to enforce human rights conditions on Israel.
Sanders in January forced a vote on Israel’s use of U.S. military aid via a previously unused provision in the Foreign Assistance Act. The Senate voted 72-11 against the legislation, which would have required the State Department to assess whether Israel has committed human rights violations in Gaza and certify the government has not committed gross human rights violations per Leahy laws. Failure to submit the report within a month would have frozen Israel security aid.
Meanwhile, Congress continues to negotiate a supplemental aid package that includes additional security assistance for Israel and Ukraine. Senate Republicans blocked the bill from proceeding in December, echoing their House counterparts who insist on pairing additional Ukraine aid with unrelated immigration policy changes.
The supplemental spending bill allows the Biden administration to waive the customary congressional notification requirement for the $3.5 billion it appropriates in foreign military financing for Israel, a provision specifically requested by the White House. Kaine said in January he intends to offer a supplemental amendment that would maintain this congressional notification.
The Senate expects to conclude negotiations on the foreign aid package as early as next week.
Bryant Harris is the Congress reporter for Defense News. He has covered U.S. foreign policy, national security, international affairs and politics in Washington since 2014. He has also written for Foreign Policy, Al-Monitor, Al Jazeera English and IPS News.