The Lawfare Podcast: Conditioning Arms to Israel with Sarah Harrison

[Audio Excerpt]

Sarah Harrison

It took this particular strike on six foreign nationals and one Palestinian to hear any kind of collective outrage from the world, and especially the U.S. government. But I think that should make us skeptical that if operations continue to kill Palestinians, whether that's going to actually bring about any change from policy. And when we talk about change in policy for the Biden administration, it's really about conditioning assistance, right? Conditioning military assistance, which again, the president and his spokespersons continue to say is not their policy.

[Main Podcast]

Tyler McBrien

I'm Tyler McBrien, Managing Editor of Lawfare, and this is the Lawfare Podcast, April 11^th, 2024. Last week, 40 Democratic members of the House of Representatives wrote a letter to President Biden, expressing concern and outrage over an Israeli airstrike that killed seven aid workers from the World Central Kitchen. The lawmakers urged the president to reconsider his recent authorization of an arms transfer package to Israel and withhold any future offensive arms transfers if the strike was found to have violated U.S. or international law. They also urged Biden to withhold arms transfers if the humanitarian situation in Gaza continues to deteriorate.

I sat down with Sarah Harrison, a Senior Analyst with the International Crisis Group's U.S. program and Former Associate General Counsel at the Defense Department's Office of General Counsel, International Affairs. Sarah walked me through the laws and policies that govern U.S. security assistance, what recent reporting may or may not tell us about Israel's law of war compliance, and the difficulty of making some of these assessments. We also discussed what President Biden risks by not applying conditions on military aid abroad.

It's the Lawfare Podcast, April 11^th: Conditioning Arms to Israel with Sarah Harrison.

So Sarah, the main reason I wanted to talk to you today is about the laws and policies that govern U.S. security assistance with regard to Israel, especially over the past five to six months. But before we do that, I wanted to get a few basics on the table. So, from a high level, could you walk us through what the obligations are under international law for parties to a conflict?

Sarah Harrison

So it's important before determining what law applies to classify a conflict. When states are fighting each other, when there's a state-on-state conflict, there's certain applicable laws, like treaties, that those states are a party to. Some of the most well-known treaties are the Geneva Conventions. There's also the Hague Conventions and Additional Protocols, and these make up a body of treaty law that applies to armed conflict, and they are incomplete in their coverage of all issues that arise under IHL, International Humanitarian Law. I'll refer to that as IHL. And that is why there's customary international law that applies to other issues that are not covered under treaty law. And then if it's a non-international armed conflict, Common Article 3 of the Geneva Conventions applies to the non-international armed conflict as well as customary international law. And that can be both IHL and then also international human rights obligations that supplement IHL. But IHL is the specific body of law that applies to an armed conflict, and so Israel's obligations would flow from the treaties they are a party to and customary international law that binds all states when they are a party to an armed conflict, either in international armed conflict or non-international armed conflict.

Tyler McBrien

Thanks for that. And I also want to state up at the top the reasons why we're focusing today on Israel's alleged violations of IHL, and not necessarily Hamas's violations. And that's for two reasons. First, being that we're focusing on U.S. security assistance to Israel and the conditions under which it can be constrained or not. And then secondly, is that there's no eye for an eye principle in IHL. In other words, Hamas's violations or one party's violations doesn't release the other party from their obligations under IHL. Could you speak a bit to, just looking at IHL now, the four fundamental principles that undergird this body of law?

Sarah Harrison

Yeah, and I want to state at the outset, I'm rephrasing the U.S.'s position on these principles. I think when I recently spoke in a different interview about principles, there are different ways that states and ICRC, the International Committee of the Red Cross, view these rules. But this is how the U.S. would look at these issues. And I think that's important to frame it this way because the U.S. will look at IHL compliance under the laws we will discuss later as they interpret them.

And so the four main ones that I think we should discuss are military necessity, distinction, proportionality, and humanity. The DoD Law of War Manual also covers honor, but I don't think we need to get into that. Military necessity is what justifies the use of measures needed to defeat an enemy. It's why enemy combatants can shoot at each other or seize persons or property, and it also justifies incidental harm to civilians or civilian objects. But it doesn't ever justify prohibited measures that are prohibited under other principles or under the law of war or IHL.

And then there's distinction, which is, I think, very obvious principle, which means that parties to an armed conflict have to distinguish when they are targeting between armed forces and the civilian population or distinguish between a military objective and the civilian population and civilian objects. And they must also distinguish themselves from civilians as a party to the armed conflict. And distinction also requires classifying persons when it's a non-international armed conflict. So when a state is finding a non-state group, you need to distinguish by classifying who the armed group is and what is the military wing of that armed group.

And then there's proportionality. And proportionality is when targeting is done, the combatant must weigh the anticipated incidental loss to civilians against the direct and concrete military advantage anticipated to be gained. And the former can't be excessive in relation to the latter. So you can't have excessive anticipated civilian loss when targeting a military objective. And that really underscores precautions, which from the DoD perspective, flows from proportionality, that a party to an armed conflict must take all feasible precautions to protect civilians and other protected persons and objects, taking constant care to spare civilians in their targeting.

And then there's humanity. And humanity works along with military necessity. It basically prohibits unnecessary suffering and superfluous injury, reinforcing that you can only take necessary actions in war that have a military necessity. You can't do things like commit torture because there's no military advantage there. There's no military necessity to doing that when you have individuals already detained and off the battlefield. So those are the four main ones that would govern the conduct of hostilities and help reinforce and help interpret treaty law that's applicable to state conduct.

Tyler McBrien

So we've spoken a bit about these principles in the abstract, but I want to apply them in a sense to a recent report that came out of +972 magazine on the so-called Lavender AI program. In reading that reporting, could you just walk through, in broad strokes, what +972 reported on, and what this may or may not tell us about the Israeli military's compliance with IHL? And then also relatedly, what this may or may not tell us about the Israeli military's internal rules of engagement?

Sarah Harrison

Yeah. So I think two main takeaways for me from that reporting is, one, it seems as though, based on the interviews that the journalists conducted, that Israel was using AI technology to identify certain targets, Hamas targets, within Gaza. And it seems as though the definition ended up being quite broad. And in application it also appeared, based on the interviews, that there wasn't much effort taken to determine at a human level outside of the AI being used, if the targets identified were, in fact, the militant wing of Hamas and therefore, applying the principle of distinction, distinguishing between the militants and the civilian or political wing of Hamas or civilians, period. And so there should be, at least for U.S. officials, a lot of concerns regarding whether or not Israel was complying with this fundamental rule of distinguishing between Hamas and civilians during those strikes.

And then the other main takeaway for me from that reporting was the fact that, again, based on these interviews, it appeared as though leadership in the IDF had set certain proportionality numbers that were, like acceptable civilian casualty numbers per Hamas individuals, including one example given was for low-ranking Hamas to allow about 15 to 20, depending on the time period, civilian casualties per low-ranking Hamas member. Which disincentivizes, or I would assume, and it seems as though maybe it did, given the number of civilian casualties that occurred early on in the war, and continue to occur. But it would disincentivize the operators from taking further action to do a proportionality assessment that included taking all feasible precautions to avoid further civilian harm. And that can include using a different weapon or waiting till a different time when there's less civilians around. But if they've already been given the go-ahead to allow for 15 to 20 civilian casualties, then they might have felt comfortable moving ahead with that strike, even if IHL would have imposed a higher standard on them.

And so this reporting should be raising concerns within the U.S. government about whether Israel has been adhering to these principles that are binding rules. They're not just guidelines. They're binding rules on parties to an armed conflict. And so I imagine that there are discussions within the U.S. executive branch about what this means for U.S. assistance. But those are, I think, two of the main concerns I had. I'm curious if you thought there was anything else in there that was problematic, and how the fundamental rules that we've just spoken about, how they would be compromised if IDF, who were operating in Gaza, were actually following them in the way that the reporting describes.

Tyler McBrien

Yeah, as you just hinted at, I raised this specific case, not from the perspective of litigating whether or not Israel committed a war crime in this instance, but rather because these are the types of determinations or assessments that should be taking place in the U.S. government with regard to the continuing security assistance toward Israel. So by way of that entry, could you walk us through what exactly are the laws and policies that govern the U.S. security assistance to any country? Setting aside the example of Israel for now, what are the laws in the books? And what are the obligations?

Sarah Harrison

Yeah, so there are many. So we can walk through some of the relevant ones. I think that would be helpful. But basically, Congress has a role to play in foreign policymaking, just like the executive branch. And with the amount of security assistance that Congress authorizes and appropriates every year for the executive branch to give globally, some members of Congress have considered there to be a great responsibility to impose certain values on that transfer of security assistance around the world. And they do that through these laws that restrict security assistance in a number of ways, whether it's through trying to advance democracy, through the coup restriction, which isn't relevant here, or human rights, rule of law generally, or humanitarian access. There are different provisions in the State Department's Appropriations Act. They're in the Foreign Assistance Act, the Arms Export Control Act, Title 10, Title 22.

So I think most relevant for Israel's operations in Gaza right now are the Leahy Laws that apply to both DOD and State Department assistance. And they have been on the books for decades and are very limited because they only apply to restrictions on specific units of foreign security forces when there's credible information, those foreign security forces committed a gross violation of human rights. And then I think helpful to discuss is 620I of the Foreign Assistance Act. And that restricts assistance under the Foreign Assistance Act, or the Arms Export Control Act, to a country when its government is prohibiting or otherwise restricting, directly or indirectly, the transport or delivery of U.S. humanitarian assistance.

Now that's pretty wordy, but I actually think it's pretty straightforward. If a country is restricting assistance, whether it's directly or indirectly, that's provided by the U.S., then they can't receive arms from the U.S. There's an exception in the law and we can talk about that. But I think that's one of the most applicable laws here with respect to what's going on in Gaza, especially as it's on the brink of famine.

And then there's 502B of the Foreign Assistance Act, which prohibits U.S. security assistance when there's a consistent pattern of gross violations of human rights. And that's a blanket cutoff of security assistance to a foreign nation. But there's also this interesting oversight provision within 502B of the Foreign Assistance Act that allows for the Senate or House to ask for a report from the State Department. And actually, Senator Sanders tried to do this back in December. We can talk more about that if you're interested.

And then I think also another relevant law is the Arms Export Control Act. It says that the president can only provide defense articles and services for legitimate self-defense. The president has to promptly report to Congress if it's used for a purpose not authorized, and there have been accusations in the past by some members in Congress that, outside the context of this current conflict in Gaza, Israel was not using weapons for legitimate self-defense, and that the president should be reporting on that use of U.S. provided weapons.

And then there are a number of policies under this president, actually, that are relevant, and I think the most relevant is the Conventional Arms Transfer Policy. And this is a standard created by Biden that has been, that is actually more progressive than any conventional arms transfer policy in the past. And it was complemented by civilian harm mitigation groups and arms control groups because the standard was so different from past presidents. And what it did is set a policy for the president to not transfer arms, to agree basically to himself, he will not transfer arms, if the U.S. government determines, it is more likely than not that the arms transferred will facilitate a serious violation of IHL or IHRL. IHRL is international human rights law. And the policy was really intended to be above politics, right, to apply to all countries. But we've heard a lot of criticisms in the last several months from civil society that the Biden administration is not applying it objectively to Israel right now.

And then there's the Civilian Harm Incident Response Guidance that was reported on last fall, but there's not a lot of publicly available information about it. But what we know from the reporting is that if there are incidents of civilian harm involving the use of U.S. defense articles, then U.S. officials in the State Department will conduct certain types of investigations and try to recommend remedial measures to the foreign country in question.

And then the third policy which I think is relevant, and maybe the most covered policy in the last few months is National Security Memo 20, and President Biden issued this in early February. And it does two main things, which is it requires a foreign country receiving defense articles to provide written, credible, and reliable assurances to the U.S. government that it will comply with international law, and it will ensure certain types of humanitarian access in in areas of armed conflict where U.S. defense articles are being used. And then the second half of that policy requires reporting to Congress on partner state behavior and compliance with law and policy. And the first report will be due in early May.

But what the NSM does not do, it does not prohibit assistance if there's noncompliance with international law. It is not as forward leading as the Commission on Arms Transfer Policy. And it does reference the laws and policies I just walked through, or at least some of them, which I think was frustrating for analysts and civil society watching what was happening within the executive branch because those laws and policies weren't seemed to [have been] applied in this instance. And so developing this new policy to get written credible assurances and more reporting seem to just add layers to a policy of never conditioning an assistant to Israel, whether it be through law or the president's own policies and a distraction from that noncompliance.

Tyler McBrien

Yeah, and just picking up on that last point, I'd encourage listeners to read Sarah's excellent Lawfare piece on NSM-20 that I think we published about a week after the policy came out. Sarah, you wrote in the piece that you said while it was a step forward in some ways, especially in reporting requirements, you felt that in the context of Israel, the policy, quote, “avoids being another performative measure, creating additional processes that keep policymakers and lawyers in the bureaucracy busy while maintaining the status quo with respect to arms transfers.” I'm curious, just now that a couple of months have elapsed since we published, how do you think that analysis has played out, over the past six to eight weeks?

Sarah Harrison

Yeah, I would actually point to the frustration of those on the Hill in the Senate and the House who don't think that the assurances provided by Israel are credible based on its past behavior. So it was Israel had to provide by mid-March, it's written credible assurances to the executive branch, and it did. And there were some officials in the executive branch who immediately described them as credible and reliable assurances. And so I think that there was frustration, and I think also confusion, from lawmakers about why that assessment was made so quickly.

And it seems as though based on what we're hearing from spokespersons in the administration, like at the White House and the State Department, that they still have not made any determinations that Israel has not complied with international law is also frustrating for people. But I think based on what we've heard in private conversations, is that those assessments take time, and they are doing them. It's not as if they've determined that Israel has never violated international law. It's just that they are still discussing the different incidents that I think are being brought to their attention.

But there does seem to be a certain amount of confusion and misunderstanding about how this is going to work. We also keep hearing that they're building the plane as they're flying it with this policy. And it is quite a cumbersome policy, and I think that's why in the reporting requirement to Congress there is a bit of an out provided that the secretaries of state and defense can describe the challenges they faced when conducting the assessments that are required, and whether or not there's even available information that would be responsive to the report. And so, I think that they're working through a lot of issues. So it's been quite of a messy couple of months since the issuance of this memo.

And if we back up a little bit, the reason this memo was issued is because Senator Van Hollen was trying to pass an amendment that mirrored a lot of the language in NSM-20, and wasn't going to be successful, but was able to put pressure on the White House to do something. And they worked out a deal where the president adopted this language and put it in a memo. And our understanding is that there wasn't a lot of coordination among the State Department and Defense Department about how this would work. It was just a deal between the Senate and the White House. And so they're still trying to figure out what this looks like. And I think the thing that we all should be looking forward to is this report that will come out in May, though I'm not optimistic that much of it will actually be public or unclassified because there is the ability written into the NSM-20 for the executive branch to provide a classified annex. And so much of the information we might all be very interested to read, it might be in there.

Tyler McBrien

Yeah, it is interesting reporting. I've also read about the building a plane as you fly it element of the NSM-20 reporting requirement. But in looking at other assessments and determinations that are supposed to be made with regard to other laws and policies for U.S. security assistance, do you have a sense of how those are conducted? So we spoke earlier about some of the difficulty in determining whether a certain attack violated proportionality, for example, because, ideally, you would have the information available to the commander at the time. So how are these assessments supposed to be done from afar, so to speak? How did DOD and the State Department conduct other human rights abuse assessments with regard to other policies, not just NSM-20?

Sarah Harrison

Yeah, I think if you look at the Leahy Laws, because they've been around for so long, and there is a process in place for reviewing information to determine if it's credible that a gross violation of human rights occurred. It's easy to talk that through, and those processes have been ongoing, or were ongoing, pre- and post-October 7th of 2023. And what typically happens with most countries under the Leahy Laws is that a unit of a foreign security force is proposed to receive certain type of equipment or a training and then there's vetting of that unit, and if there is credible information a gross violation occurred then that unit is prohibited from receiving that assistance or training. With respect to a country like Israel, or Egypt or in the past, Afghanistan, there's so much money that is provided up front, that it's basically called untraceable assistance.

And so there has to be a system in place to review ongoing allegations determine if there's credible information of a gross violation of human rights. And so the bureaucracy is set up to have offices that cover Leahy Law issues. And the State Department and the executive branch come together and go over these incidents. And in public reporting, people talk about this Israel-Leahy forum that's been developed to look at cases to apply the Leahy Law to Israel. And I was told back in December that forum is very busy because they're having to review many allegations. And they try, so to your question, is they try to get as much information as possible from Israel to help inform whether they can determine that the allegation they're getting from a human rights organization or a journalist, whether that information is credible, that an actual gross violation of human rights occurred. And once those offices get together and make an assessment and there's a decision, then typically either in other countries if everybody agrees that assistance should be cut off because there is credible information, then that assistance doesn't go to that unit. In the case of Israel, there's never been a determination, to the public's knowledge, there's never been information that the Department of Defense and State have deemed credible of a gross violation of human rights to the extent that it would cut off assistance to a foreign security force within Israel.

And so I think what takes time, it takes up a lot of time with respect to these reviews, is that they're asking for a lot of information from the foreign nation as they're setting up these meetings, once a week or once a month to discuss cases. And it just takes a long time. And we keep hearing that from U.S. officials now, is it takes a long time to review these incidents, and I think that's very frustrating to hear for the public because when you see so much destruction and civilian death in front of you, it's hard to not understand why there's not immediate cuts in assistance. And I think it's a little more complicated for Leahy than it is for things like the Conventional Arms Transfer Policy and 620I, the Foreign Assistance Act. But I think what's actually gumming up the works with 620I, based on what we're hearing from U.S. officials, the lawyers are still working through the law to determine what it means. And that's why I really emphasize that it's actually very simple when I walked through it earlier, because it is a very straightforward provision in the Foreign Assistance Act. It's not very complicated at all. And I would say it's very clear that—and so would Senator Van Hollen, he has said this before—it's very clear that Israel's actions are in violation of 620I.

But I think, bigger picture, why these laws and policies don't seem to be sticking or really applied to Israel, goes back to the fact that there is an underlying policy from this president, and actually recent presidents as well, that you don't criticize Israel, you don't ever determine that Israel commits violations of international law, and assistance is not going to be conditioned. And the president and officials in his administration have made that very clear that there is not some kind of tripwire that's going to cut off any kinds of military assistance to Israel.

Tyler McBrien

Yeah, I want to pick up on that a bit. You've spoken elsewhere about this sort of framework in place between the branches. In this case, there has been reporting, as you said, that Biden himself is fairly determined not to condition aid on Israel, which would seem to render all of these laws and policies on conditioning aid useless, perhaps. What is the role of the other branches, specifically Congress and judiciary, if there is a role, in making sure that there is compliance toward these laws and policies on the books?

Sarah Harrison

Yeah. So I have said before, because I heard this a lot when I was in the executive branch, there's no such thing as a Leahy Law court, right, or a 620I court. There's no court that's going to review whether the executive branch has complied with these laws, in part because it's very difficult for anyone bringing a case to have standing, and then it raises issues of political questions of second guessing the executive branch's interpretation on these national security-related laws. And so it really is up to Congress to maintain some level of oversight and control.

The problem, with respect to arms transfers, is the way that the laws have been drafted, Congress just isn't actually able to control much. They can amend laws and they've done that, right? They've actually streaked in the Leahy Laws over the years and have been able to provide more clarity on laws that relate to restricting security assistance. I think it gets harder and harder as there is resistance, especially among Republicans, to inserting certain provisions in law related to human rights and IHL compliance. But one way that they do have a significant role to play, which has been reported on recently with respect to these arms transfers, is intervening when the executive branch comes to them for an informal discussion about arms transfers and airing their objections at that time.

So if there is a transfer that's going to occur, I'm sorry, an arm sale that's going to occur, that is above a certain threshold, Congress has to be notified by law. But before that's done, before the congressional notification happens, the executive branch typically goes to the chair and ranking member of the Foreign Affairs committees to talk to them about their concerns related to that specific transfer. This is not just for Israel, it's global, right. So they have these informal discussions, as a matter of custom, to talk through what are lawmakers concerns before the actual notification occurs, because then once the notification occurs, the executive branch assumes that there are not going to be any more bumps in the road, and they can move forward with the arms sales.

And the congressional notification, once it occurs under the law, there is a different time period at which Congress can act for different countries. For Israel and some of the U. S.'s major NATO and other allies, there's only 15 days during which Congress can act under the law. And then the way Congress can act is by passing a joint resolution of disapproval.

A joint resolution of disapproval has never successfully blocked an arms sale. There were attempts under the Trump administration that actually passed Congress, but Trump vetoed. So you, Congress would need veto-proof majority. And that's obviously very hard in such a fractured Congress as this one. And it's just hard historically to get veto-proof majorities in Congress. And so the way that the, again, the way that the law is set up doesn't really allow Congress to have much influence, except, I think, in those informal processes that occur before notification that allow a discussion to happen and for Congress to try to influence the president to have maybe a delay or repackage what is going to be provided.

And then outside of that, outside of the joint resolution of disapproval, Congress can pass a law. They can say, “This country can't receive assistance,” right, and name that particular country. But again, that's really difficult to get a veto-proof majority for a law like that as well. While Congress does have a role to play in foreign policymaking, I think it's just, the current political climate makes it makes it very hard for them to have any influence over arms transfers and arms sales.

Tyler McBrien

So if the executive branch, or, rather, the president, is fairly insulated from influence, should we say, from the other branches, or, at the very least, if the president enjoys quite a bit of latitude with regard to security assistance and arms sales, what about constraints or dissent from within the executive branch itself? What are the options for people within DoD and State Department, say, who may object to arms transfers? And I'm thinking specifically of some high-profile resignations we've seen over the past few months at the State Department. What are the other options though, or, if during these periods of assessment?

Sarah Harrison

Yeah, there's obviously the option to resign and do it in a high-profile way, to exert influence. There is the option to be a whistleblower. There is the option to send up a memo that is separate from the one that is packaged by colleagues that an individual or official at DoD or State might disagree with. At State, they have a different, they actually have a split memo process if they can't agree. And so there's a way to provide dissenting views that way. There's also the dissent cable. So there are many ways.

It's just that at the end of the day, I think you'd have to have a cumulative effort among the bureaucracy that really puts significant pressure on the president. It can't just be these one-off resignations, especially of civil servants. I think people who work in the administration, who are political appointees, who actually work on these issues, who are at a high-level, if they were stepping down, it would be different. But our understanding is the reason most of them are not stepping down is because—or any of them are not stepping down—is because they're worried about the impacts to the president in an election year, during an election that I think many of them see as a serious risk to international security. So yeah, those are some of the ways I can think of that people might be able to put pressure on the executive branch or the administration, but whether it's successful or not, is, I think, a question of the significance of whether it's a large number of civil servants or high-level, high-profile people taking action.

Tyler McBrien

One thing that has happened since you last wrote the piece for Lawfare on NSM-20 is the now very high-profile attack on seven aid workers who worked for World Central Kitchen who died in a missile attack launched by the Israeli military. Though that these are far from the only aid workers who have been killed in Gaza since the beginning of the conflict, they certainly, I think, got the most attention and have seemingly sparked the biggest outcry and pressure on the Biden administration. This likely directly led to a phone call, that I'm sure you're aware of, between President Biden and Israel's Prime Minister Benjamin Netanyahu, in which Biden said that the U.S. policy with respect to Gaza will be determined by our assessment of Israel's immediate action on the humanitarian situation there.

So all that is to ask, do you see the past few weeks as something of a turning point with regard to U.S. security assistance toward Israel? I know I'm asking a bit of prediction here, but do you see the tide changing a bit with the ratcheting up of public and political pressure on President Biden?

Sarah Harrison

I think at the time, the World Central Kitchen strike seemed to be a catalyst to change the U.S.’s approach. But I think we have to be very careful in assessing whether there was actually any change in policy. It was more of a change in approach, right, because the president had this phone call where he basically threatened to potentially change policy, right. Not that policy was actually changing. And it did seem to lead to some effects, though I've heard from an Israeli expert, a legal expert who lives in the country, that there were other things at play there, it wasn't just the president's phone call. And that there was also, there's international pressure, there's certain types of internal political pressure that started to change the way that the Netanyahu government was approaching the war and conducting its operations, as well as the access for humanitarian aid.

I don't think that the approach is necessarily addressing the gravity of the situation because the humanitarian crisis is so enormous that some of these smaller moves that have been taken are still not going to address the crisis of starvation that's happening there. And it's not clear whether things will go back to a situation where more and more Palestinians are dying, but Israel is being very careful to avoid hitting any individuals who are foreign aid workers, who bring a lot of scrutiny to their operations.

Because prior to the world Central Kitchen Strike, 32,000 Palestinians have died, half of which are reportedly children. So it took this particular strike on six foreign nationals and one Palestinian to hear any kind of collective outrage from the world, and especially the U.S. government. But I think that should make us skeptical that if operations continue to kill Palestinians, whether that's going to actually bring about any change from policy. And when we talk about change in policy for the Biden administration, it's really about conditioning assistance, right, conditioning military assistance, which again, the president and his spokespersons continue to say is not their policy. And the president didn't say what the policy change would be if Israel didn't take certain action.

So I think that you also have to look at the publicly reported arms transfers that are still being processed by the administration, which indicates to me that they are still prioritizing those arms transfers over the serious humanitarian situation that is occurring in Gaza. So you still have to look at their actions versus just what they're saying. And we can talk through all of the different currently reported arms transfers and how that's unfolding.

Tyler McBrien

Sure. Yeah. What is the current state of arms transfers to Israel at the time of recording? What are some of these packages that are ongoing?

Sarah Harrison

Yeah, I think if maybe some of your listeners will recall that there were some transfers that occurred in December where they were high profile because the Secretary of State signed some national security emergency waivers to avoid the congressional notification period because those were above-threshold transfers. And what we've been told by the administration up until now is that a lot of the transfers that have been reported on, for example, by the Washington Post about a hundred separate arms sales since October 7^th, a lot of those transfers were below threshold, so there was no congressional notification for those. But also that a lot of these cases are old cases, and so the only two really new transfers were those December transfers where the emergency authority or emergency waiver was applied. And so, under foreign military sales cases, they can take many years. They can take decades. And so, what we've been told by U.S. officials is that they've rushed a lot of these to get them quickly to Israel post-October 7^th.

And many of them have been below threshold, but some of them are above threshold that required notifications, but that happened a long time ago. One case was 2008 congressional notification. But those transfers are going to include 2000-pound bombs and 500-pound bombs, which, if anyone has been following the operations in Gaza, have been used in Gaza, which is a densely populated civilian area, and has contributed to the high amount of civilian casualties that have occurred there. And there's now this new reporting of 50 new F-15s, and there are informal discussions with Congress about this, and I think this is where Congress is trying to find an opening to influence the president and the executive branch on an arms transfer by having these informal discussions and expressing concerns about this transfer, even though it would take many years for Israel to get these F-15s, even if the approval of this transfer happened now.

And then if you and others recall, there was an appropriations package passed in late March that included another 3.3 billion dollars for foreign military financing that goes to Israel. And the executive branch is under an obligation to put that in an interest-bearing account within 30 days for Israel to use. So there hasn't been much change or any change in the approach. If anything, there has been an acceleration of trying to get equipment to Israel much quicker and moving these cases along. And I think, again, that just speaks to the fact that arms transfers are a priority of the president over limiting the destruction of Gaza, which is what we've all witnessed over the last six months.

Tyler McBrien

This next question seems almost too basic to ask, but why are these laws and policies and constraints and requirements on arms transfers and U.S. security assistance in place? And secondly, what does the Biden administration risk, both domestically and abroad, if the situation continues as it has the past six months, —in addition, of course, to the risk of just the further destruction and death in Gaza—what does the Biden administration specifically risk by continuing the status quo?

Sarah Harrison

Yeah, these are great questions. Why are these laws in place if sometimes they don't seem to have any teeth? Yeah, it's like I said, it's a matter of how legislation has unfolded over time. Decades ago, when members of Congress were more willing to be champions of certain types of provisions of law that would restrict assistance, like I mentioned earlier, the coup restriction for restricting assistance to a country where a military coup has occurred and a democratically elected leader has been ousted, or advancing human rights and accountability among foreign security forces. These laws are old. These are not new. And I think in the current environment, it's become—and 620I is also an old provision—but it's become very difficult for the U.S. government to critique its partners through interpreting these laws and applying them because the U.S. government relies so heavily on providing security assistance to build its partnerships around the world.

And when such a significant part of your foreign policy—and this is not driven by DoD, it's also driven by State and the way that the bureaucracy is set up to really want to build that military-to-military relationship, or to provide certain types of advanced U.S. equipment, and then also just to advance the U.S.'s defense industry here at home. All of these incentives build to resist the legal framework that's in place to try to advance certain values that I think are really important for long-term policymaking. Because when policymakers start to interpret laws and policies this way, that actually limit the utility of this framework, it develops a very short-sighted policy.

And then it gets to your second question of what is Biden risking? And I think what he's risking when—and I don't think necessarily the world is saying, “Oh, you're not applying 620I,” but they're seeing a certain type of hypocrisy, right? And so when these laws and policies are interpreted a certain way for a certain country and never applied the same way to a certain country that they are to other countries, the U.S. comes across as hypocritical.

And I think we've heard this a lot with respect to allegations of war crimes, that it was just weeks after Russia's invasion into Ukraine that there were allegations by U.S. officials about Russia using food as a weapon of war and weaponizing food in Ukraine, and then also carrying out war crimes and accusing Russia of disproportionately conducting attacks in Ukraine and killing civilians. And not that I think that we should compare the conflicts and the crimes that have occurred, but I think what people are pointing out is that, why is there not the same type of moral outrage and concern over the immense amount of death and suffering in Gaza, when it seems obvious that, based on the statements alone from the government of Israel, that they were prohibiting food from getting into Gaza, based on their very clear statements of, “We are going to conduct siege warfare and not allow products to get in.”

And so I think that's one risk is the international outcry and the hypocritical stance that the U.S. takes. But I think also domestically Biden runs the risk of losing important constituencies and swing states that he will need to win his reelection if that's a priority for him, which it seems to be. I think he is losing the support of young people. Young people don't see the conflict the way that his generation or the generation after him views it. And they seem to be very clear-eyed that what is happening is unacceptable. And then there are other constituencies like Arab Americans where we've seen have been very successful in the primaries of getting a lot of people to vote uncommitted and indicating to the president he needs to be very careful about this particular and very niche foreign policy because it might cost him reelection.

And unfortunately, I think that the president has made a calculation that domestically it's to his political advantage to maintain this policy. But I think that is an outdated view and what we're hearing from senators and members in the House is they think so as well, that they think that this is a policy of a different era, and it doesn't work now and it's really very risky.

So I think those are the two of the main problems that the president is facing, but maybe not really grappling with the way that he should.

Tyler McBrien

Sarah, thank you so much for helping us sort through the many laws and policies here and for taking the time to speak with me today.

Sarah Harrison

Yeah, of course. It was my pleasure. Thanks so much for having me.

Tyler McBrien

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