Lawfare Daily: The Biden Administration’s Approach to the Israeli-Palestinian Conflict with Former DAS Andrew Miller

[Introduction]

Andrew Miller: It's clear that Israel can and should be doing more to protect civilians, and we've seen some changes over time. And generally speaking, the targeting practices of aerial attack have improved, but I don't know that we've seen this same level of improvement from ground-based forces.

Scott. R Anderson: It's the Lawfare Podcast. I'm Lawfare Senior Editor Scott R. Anderson with Andrew Miller, a Senior Fellow at the Center for American Progress, who was until recently the Deputy Assistant Secretary of State for Israeli-Palestinian Affairs.

Andrew Miller: There's no way that the United States and Israel could win the conflict in terms of international public opinion. We could mitigate the damage, we could contain it, but ultimately we both were going to be criticized to varying degrees over what was done. What can be won is the post-conflict period.

Scott. R Anderson: Today, we are getting an inside view of the Biden administration's approach to the Israeli-Palestinian conflict and where it is likely to go from here.

[Main Podcast]

So Andrew, to start things off, you were recently part of, among other things, a Twitter exchange with Jill Stein, you know, a prominent former Green Party candidate for president who, among other people, identified you as having resigned in protest from the administration and from your recent role at the State Department. And you responded to correct that. So let's start there: why did you recently leave your position at the State Department? And how do you respond to the reporting in some quarters that you did so as a matter of protest?

Andrew Miller: Thanks for that question, Scott. The banal truth is I left for family, and while I recognize that officials routinely cite family as a pretext for leaving a job for other reasons and in my case, it happens to be true. I have a young child who I really hadn't seen for an eight-month period, and I remember growing up and my parents always being around. And I found it easier to sacrifice my own time than to sacrifice my child's time and development. And I recognized that in her interest, I needed to take a step away for at least some time to focus on her and that relationship. I would've preferred all circumstances being equal to remain in government and to continue to work on these issues and advocate for the policies that I thought would deliver the best benefit for the American people, but I simply couldn't ask my family to sacrifice any further.

Scott. R Anderson: Well, that is certainly an important and fair consideration. So now that we've cleared the air on that point, let's take a step back and talk about when you entered into this most recent position in 2022 before the October 7^th attacks that of course have proven to be a watershed moment in regional affairs broadly, particularly with the U.S. engagement with Israel, with Palestinians on a variety of sets. Before that event happened, when you entered into this position, what about your professional background led you to be interested in this position? What were your aspirations for the role you were stepping into?

Andrew Miller: I've been focused on the Middle East and particularly the Arab-Israeli conflict for the better part of 20 years now. I was in grad school, I was doing a dissertation on U.S. mediation in the Arab-Israeli conflict, which I regrettably, never finished thanks to the Arab Spring and the work responsibilities that entailed. But both in my academic research and then, you know, working in government as both a civil servant and then a political appointee beginning in 2008 and through 2017, and then resuming again, in 2021, I had always been focused on the Middle East. And while I covered basically every country that falls within the Middle East or the Near Eastern Affairs Bureau at State the two constants were Egypt and Israeli-Palestinian issues, and they're issues I feel passionate about.

When I entered the job, when I agreed to take it in December 2022, I anticipated it was going to be difficult. I thought there was a risk of an explosion of one kind or another. We were more focused on the West Bank as the location in which it would occur, but it was clear that the pathway was not stable and there was a great risk of a conflagration. So part of the reason, part of the appeal, if you can call it appeal, was that I thought we had an opportunity to avert something that would be disastrous for Israelis and Palestinians and potentially other people in the region and also severely detrimental to U.S. national security interests. So I can't say I'm completely surprised by what happened I did not have a crystal ball and anticipate October 7^th, but it was clear from the very start that the trajectory was a negative one.

Scott. R Anderson: So the Biden administration entered the Israeli-Palestinian conflict, the U.S. relationship with that conflict, I should say, in a kind of unique and challenging position. They were coming after a Trump administration that had made some pretty dramatic changes in long standing U.S. policy and legal positions about the capital being in Tel Aviv, not in Jerusalem, about the status of the Golan Heights, to some extent about the status of the West Bank. And the Biden administration, perhaps more importantly, also entered a situation where U.S. relationship with the Palestinians had deteriorated to a point that I think it was fair to say is a low of at least going back several decades. How did the Biden administration approach those relationships prior to October 7^th when you entered this position? Where did they fit into his kind of broader strategic picture and what was its strategy about how to deal with both the Israelis and the Palestinians and the conflict between them?

Andrew Miller: Well, I think when the president originally entered office and this is true of most presidents, his greatest ambitions lied in the domestic realm. And there, he had an ambitious domestic agenda he wanted to pursue, which required close cooperation with Congress. And there was a degree of reticence to take risks on foreign policy, where they were deemed unnecessary or gratuitous for fear that it could complicate the ability of the president to move forward on a variety of domestic items.

And then within the foreign policy realm, there was a real change, a sea change, in terms of how the United States viewed the Middle East for the better part of, two decades. The Middle East was the single most important foreign affairs topic, national security topic to the United States. And the Biden administration entered with a clear view of a need to focus on the PRC, a need to focus on Russia, the return of great power competition, but also to focus on some transnational issues that couldn't be reduced to state-to-state relations. Obviously the COVID pandemic was still severe at the time the president entered office. He had ambitious goals regarding climate change that required cooperation, not just with our partners, but even with our adversaries. So within that constellation of interest, it's not so much that the Middle East was downgraded. It's simply that these other issues were upgraded and prioritized to a greater extent. In contrast to the Obama administration, for instance, where you would have multiple deputies’ committee or principals’ committee meetings on the Middle East each day and certainly each week, they were relatively infrequent in the early part of the administration because there was a desire to focus on those other issues.

And I think in that context the attitude towards the Middle East was the administration didn't want it to impede on the other foreign policy concerns of the United States and there was a desire for de-escalation that administration officials wrote about which they hoped would prevent the Middle East from becoming a distraction or diversion from these other issues. And that had an effect of reducing the focus and the attention given to the issue with the exception, I would say of two issues. One being Iran and the question of its nuclear program and the second being Yemen and the relationship with Saudi Arabia. They earned a fair amount of concern and focus, but other parts of the region just weren't the focus that they had been in prior administrations.

Scott. R Anderson: So, the Biden administration has not, to the knowledge of people in the public at least, done a lot to reverse some of the dramatic changes in U.S. policy that the Trump administration did install. We know the U.S. embassy is still in Jerusalem, not Tel Aviv. That appears to be in place, and that's not necessarily surprising, that's a position Congress endorsed a long time ago and that prior administrations had resisted. But we also have Trump administration's open embrace of Israelis claims of sovereignty over the Golan Heights which prove controversial, even in parts of Congress at various points. And then, of course, we had the Trump administration reverse a longstanding U.S. legal opinion dating back to the 1970s, disputing the legality of settlements in the West Bank. We haven't seen a replacement of that; reporting indicates that they reached a somewhat contrary conclusion, but the subsequent opinion has not been released publicly. Can you give us a sense about where the Biden administration is on those issues or how it's envisioning those kind of foundational status questions? Is there more of a drift back, at least outside of the Jerusalem embassy context to the kind of status quo before the Trump administration? Or are those changes still in place as a matter of U.S. policy?

Andrew Miller: Well, I think from the Middle East team within the administration, there was a desire to be somewhat more ambitious in pursuing changes, not on all of those issues, but at least in reversing some of them. And there was change. It didn't come as fast and as extensively as we had advocated for. But number one, we resumed funding for UNRWA, which the Trump administration had suspended, relatively early. Unfortunately, it's been suspended again, first by the administration in response to accusations that UNRWA employees were involved in October 7^th. And then by law, it's been prohibited at least until early 2025. So we'll have to return to that, but that issue has, was reversed.

There also was a step short on the consulate. There was a desire to reopen the consulate. The president spoke to it, the Secretary of State spoke to it, and this is the historical consulate in Jerusalem that dealt with the Palestinian issues. And the problem was that the United States could not reopen it unilaterally. It required Israeli permission and, in particular, an agreement that Israel would recognize the privileges and immunities of U.S. diplomats assigned to that mission. And they weren't willing to grant it despite a number of requests from various levels of the U.S. government. And so what we did instead was create the Office of Palestinian Affairs, which is essentially the rump Consulate. And we separated its reporting chain from the ambassador to Israel, which it's a very bureaucratic maneuver, but it's actually quite important because it enables the Office of Palestinian Affairs to draft cables and communications back to the State Department, back to Washington, without having to get the sign off of the ambassador to Israel, who by dint of his or her responsibilities is going to be weighing other factors. So we thought that would ensure a separate reporting channel, independent of the U.S. embassy to Israel that would reflect different views and different perspectives. So that was a half measure and it was a compromise because we were unable to reopen the consulate. But it nevertheless has been important and I think we, we did see during my time that the reporting from the Office of Palestinian Affairs improved in terms of its diversity and quality once those changes were made. And that's a change that I hope will remain in place regardless of the outcome of the election. There's certainly a chance that another Trump administration could reverse it or if Vice President Harris wins, it's worth revisiting whether we would seek permission to reopen the consulate, but there is an improvement there. There was never any intention of moving the embassy from Jerusalem back to Tel Aviv. President Biden was clear on the campaign trail that he would continue to recognize Jerusalem as the capital of Israel and that the U.S. Embassy would be based there. And in the last several years, continued work has been done on identifying a location that in Jerusalem for a new embassy. So there was no change there, but there was never expected to be any change.

Where there was a change, although it came much later than we had originally anticipated, was actually regarding the administration stance on the legality of settlements. It wasn't done through a secretary level statement as Secretary Kerry did or Secretary Pompeo did. But the spokesperson for the State Department reaffirmed the, what was the longstanding conclusion of the United States, that the practice of the Israeli government of establishing civilian settlements in the West Bank was inconsistent with international law. So that it, in effect, it doesn't invalidate, but it's a different perspective than what Secretary Pompeo said, which as I know, you were following that settlements aren't per se illegal under international law. The statement by the State Department was intended to clarify that. As a general principle, they are inconsistent with international law. There may be some narrow circumstances in which you can make an argument that a given settlement was consistent with international law, but in the vast majority of cases, they were built in a way that is inconsistent. So that was done. It wasn't done until 2024. When I think we were planning to make that announcement at the start of the administration.

So, there has been some work that was done, but it wasn't a ripping off of the Band-Aid that I think a lot of people expected that the administration would come in and in one fell swoop, reverse all of these decisions. There were isolated decisions that were made over the last three and a half year but I don't think they attracted as much attention because they were dispersed over time. One change that hasn't been made, which is, from my perspective, somewhat frustrating is on labeling of products imported from the West Bank. And what the Trump administration did is they required all products made in Area C of the West Bank, which is the part of the West Bank that is under Israeli security and civilian control to be labeled “Made in Israel.” Previously it had to be “Made in West Bank” or “Gaza” or something along those lines. Importantly the Trump administration's policy, if applied, would force Palestinians who lived in Area C to label their products “Made in Israel.” And there has been consideration over whether we would reverse that decision and revert back to West Bank, Gaza labeling for products from either the West Bank or Gaza, but that decision has not been made as of yet. And I think for the same reason that these other decisions were taken slowly and very methodically, that there's just a high political risk aversion to these steps and a desire to avoid this issue as well as other issues in the Middle East impeding on other agendas.

Scott. R Anderson: So we have a sense now about where the administration was on these issues leading up to October 7^th. Let's now talk about what happened after that seminal and pretty horrible event that took place that day. How did the Biden administration's strategy pivot from what you've described initially? You know, how did it envision this attack? How did they see it fitting within the broader U.S.-Israeli-Palestinian relationship?

Andrew Miller: What October 7^th represented and what it did was precisely the type of distraction of diversion from other U.S. interests, both domestic and foreign, that the administration really wanted to avoid from the outset. And the most significant change since October 7^th is simply the amount of time, the priority accorded to the issue. Prior to October 7^th, the vast majority of time of the most senior level officials in the U.S. government was focused on Ukraine and Russia. It was focused on the relationship with PRC. It was focused on other issues. There still was a desire to contain the amount of time spent not just on the Israeli-Palestinian conflict, but on the Middle East generally, and just try to keep things quiet and, you know, relatively controlled.

October 7^th made that position, made it unviable to continue. And now as a result, I would say perhaps up to 60 percent of the time of senior officials who have global portfolios is being spent on the Israeli-Palestinian conflict. And there is an opportunity cost associated with it in terms of our ability to move forward with other interests and priorities. It's not that they're neglected. It's simply that we don't have as much time and as many resources to commit to them. So, we've seen this succession of visits multiple trips by Secretary of State Blinken, by National Security Advisor Sullivan, the Secretary of Defense Austin, the Chairman of the Joint Chiefs of Staff General Brown was just there. Meetings on a regular basis at the highest levels. Phone calls and other touch points with foreign leaders, not just Israelis and Palestinians and Arab countries, but also with our partners elsewhere in the world. So it has inverted the prioritization of these issues because there's a recognition that the conflict needs to be steered to an off-ramp and brought to an end.

The initial approach within that context of more robust engagement was heavily informed by the shorter Gaza conflict in 2021 that the administration was able to bring or help bring to an end relatively quickly. And during that conflict, the administration largely refrained from excessive public commentary and tried to focus on private engagement with the Israeli government on the war. And they came away from that episode with the conclusion that private engagement, working with the Israelis directly out of the spotlight gave us the best chance to influence and shape their behavior, and ultimately to bring a war to an end. That was the operating assumption coming into this conflict. And it's taken a long, long time for the administration to recognize that in this conflict and the one that began on October 7^th 2023, the same tactics have not been as, as effective. And that's due in part to the nature of the conflict that it did start with October 7^th, which was an unprecedented attack and has led to the longest Israeli-Palestinian war in history. But also due to the different political circumstances in Israel, where Netanyahu was a prime minister back in, I think it was May of 2021, but he had a coalition that was somewhat more stable and somewhat more centrist in orientation. It was still on the right, but there were some centrist members. His current coalition is much more skewed to the right, and he personally is committed to extremist parties with Jewish Power, and the National Religious Party of, of Smotrich who have incredibly hawkish and extreme views on these issues, and that has affected Netanyahu's space for maneuver. So he's in a different position than he was previously.

Just for that reason alone, I think it would have been fair to conclude that private diplomacy may not be enough, that it would require some degree of public diplomacy and public pressure, not just on Israel, of course, but the pressure on Hamas. The pressure on supporters of Hamas has been in place for a long time and has been intensified since October 7^th. But slowly over the course of this war, there's been a greater willingness to publicly criticize the Israeli government. And in particular, those extremist members who are seen as sowing instability, who are serving as an obstacle to a political off-ramp, to a eventually a permanent ceasefire. But ultimately, the decision does rest with Netanyahu. This coalition is one of his own making. He doesn't have to keep this coalition. He's choosing to keep this coalition because he fears that either he will lose power, or even if he keeps power, he's not going to have a coalition that will be as open to protecting him from judicial prosecution as he believes that Smotrich and Ben Gvir are.

Scott. R Anderson: So let's dig a little deeper into that question about Netanyahu's role in all of this. Because again, as you've described, I think quite eloquently, we've seen this trajectory of U.S. policy, at least it's looked like that from the outside. It sounds like it's lined up for that perspective on the inside from this bear hug strategy, where you hold people close and whisper in the ear, do this when you need to influence them to much more open criticism and much more willing to bring at least political and diplomatic pressure. And in the case of some cases, like the limited economic sanctions being pursued against certain parties in the West Bank, even other forms of more coercive pressure. Is that learning curve unique to Netanyahu? Is it unique to certain actors in the Israeli government? Or is it a broader learning that has to happen about the U.S.-Israeli relationship as a whole? How does the domestic political situation in Israel fit into the strategy? And, to what extent should we expect, can we expect a different coalition, a different government having a substantial change of policy? What things will change, what things will stay the same, and what does that mean for U.S. strategy?

Andrew Miller: Well, I can say that in devising our policies, in choosing how to engage with Israel, Israeli domestic politics are always factored into it. Not out of a desire to accommodate them as such, but out of a desire to have the maximally effective impact and understanding that Netanyahu is a extremely skilled politician and the politics that exist within Israel. Both within the government, but more broadly in Israel would affect his decision space as well as the incentives and disincentives for certain types of actions. That is not unique to Netanyahu. That is not new. That has been a longstanding pattern in U.S. engagement with Israel over many decades. There's always been somewhat of an imbalance in terms of the U.S. government's understanding, or at least appreciation of Israeli politics and Palestinian politics.

I think that there is an acute awareness of Israeli politics, that doesn't mean that that we always make the right conclusions or assessments of Israeli politics and how they will be affected, but there's an attempt to take them into account and try to, as much as possible, navigate them with the hope of producing the best policy. I think, I can't speak, I certainly can't speak, for the president or for any senior officials in government. I'm just speaking in a personal capacity. I think the perception of Israel does vary throughout the U.S. government. There are those who view Netanyahu, Ben Gvir, and Smotrich as being anomalies, that the Israel that Americans have grew up with, as it were, is still there. There’s just this superstructure over it of more extremist or more self-serving politicians who are leading the country astray.

There are others, however, that view Israel as having changed at a societal level. That there has been this rightward shift in Israeli politics, beginning with the Second Intifada, continuing to this day, that has really changed the policy preferences of the public. And we've also seen significant and meaningful evolution in the demographics of Israeli society where historically Ashkenazi Jews were the dominant force. They still are a dominant force, but the importance of both of the Mizrahim, of Sephardim Jews from the Middle East is significantly greater than it was previously. And they tend to have different views on an aggregate basis than Ashkenazi Jews. But also the role of religious Jews in particular, Orthodox, ultra-Orthodox Jews, as well as religious Zionists who combine the religion of Judaism with the nationalism of Zionism. That has made for a different Israel than the one we would have seen in 1967 and obviously the United States is different in 2024 and 1967. And there are similar types of changes. So it's not unique to Israel, but, you know there has been an important change that has taken place. And it's one that I think analysts of Israel in the region, as well as in the U.S. and other officials need to appreciate how Israeli politics have been influenced by these changing dynamics, you know, within society.

Now because of those changes, there is a limit to the degree of potential change in policy with another government. It's certainly conceivable that the Netanyahu government could fall. I think it's unlikely that the opposition, given the current content of the Knesset, would be able to forge an alternative government. So most likely what would happen is there would be a no confidence vote leading to elections in three months from when the no confidence vote takes place. And you could very well see that there is a change in government that Netanyahu will no longer be prime minister, that the Likud will be back in the opposition and that's not an insignificant change. But the change ideologically isn't going to be that great. I think that the change would be more one of tactics and also of the way in which they approach the U.S. government. Netanyahu is so comfortable with U.S. politics and so comfortable being involved in them. He believes he can master any political challenge in the United States and harness it to his benefit. Even other senior Israeli officials who have spent considerable time in the United States, they don't have the same level of comfort, so they are somewhat more, I don't want to say deferential, but certainly less confident that they can manage those relations. So there's unlikely to be the same level of involvement in U.S. domestic politics that we've seen with Netanyahu. And that does change policy because you end up treating U.S. politics as being something that circumscribes you as opposed to something that can be changed to accommodate the policy that you want to undertake.

The other difference is, while I'm sure Netanyahu doesn't believe this personally, I'm sure in his mind, he believes that his personal role, his personal premiership is absolutely essential to Israel's future, that there is no one who can possibly do what he does. Most people don't do things that are bad and recognize they're bad and rejoice in them. They rationalize that it's in the best interest, it's for the ultimate good. But it's, it seems clear based on a pattern of behavior that Netanyahu's unwillingness to upset this coalition, in particular Ben Gvir and Smotrich, has led him to either refuse to take steps that the United States wanted to see, and we strongly believe were in Israel's own interest, as well as the Palestinians. But also led to delays where a decision may ultimately be taken, but it takes longer. And we've certainly seen that in the humanitarian space in Gaza, where a lot of the things we've wanted Israel to do, and we thought were good for Palestinians, essential to their welfare, but also ultimately good to Israel's international reputation and the long-term effects of the war, they took a long time to achieve. Whether it was increasing the number of border crossings into Gaza, whether it was making changes to de-confliction mechanisms, whether it was the type of goods that were allowed to be imported, all of those things ended up being very prolonged exercises. I think it's conceivable that under a different Israeli leadership, even one that largely views the world in the same way that Netanyahu does, they would be less recalcitrant and more willing to take those issues and to understand that they would have an adverse consequence with certain constituencies within Israel. But either they're less dependent on it, or they're more willing to pay the price because there is a limit to which they will go.

I've spoken with a number of Israelis, average Israelis, not necessarily politically involved, but, you know, politically aware who, who genuinely believe that Netanyahu is putting his own personal interest over those of the state of Israel. I don't know him personally, and I'm not going, can't give a definitive answer on whether that's the case or not, but the fact that a considerable number of Israelis have come to that conclusion and come to that conclusion during a time of war, when there tends to be a rally around the fact that flag effect and support for the leader, whomever it is, is revealing. And may suggest that there is something to this reality, or something to this narrative that Netanyahu is being impeded or has impeded himself from taking necessary actions because of the fear of the political consequences.

Scott. R Anderson: So let's go from the Israeli side of the equation to the American side of the equation, as well. Because a criticism we have heard from folks on this podcast, even and from others engaging on this issue, particularly from outside of government is that it's not, has not always been clear where the steer is coming from and where the right points of contact are. There's no high-level envoy responsible for U.S. engagement with the Gaza conflict as a whole. You have David Satterfield handling kind of the humanitarian-ish side of things, plus some. You have Brett McGurk at NSC doing policy steering. You have the secretary involved. Obviously, you have a number of other people involved at different levels who have been flying in and out and doing high level meetings. Obviously, the president himself has a long-standing relationship with Israel that's become a rhetorical pillar, if not a substantive pillar of U.S. policy in a lot of ways. But who actually is running policy point on the big picture here, all these different parts and knitting them together? And is there an argument to be said that there should be more of an effort to have a more cohesive picture under one concerted leadership, particularly given the bandwidth concerns this issue presents, not just in and of itself, but also in relation to the other strategic priorities the United States is facing?

Andrew Miller: I understand why people on the outside have come to that conclusion or have that perception. I think, in reality, there is a clear point of contact and it is at the National Security Council. And that's not unusual that during a time of, of conflict, that during a crisis, a prolonged national security crisis, that the White House exercises a greater influence over policy and decision making than they would under more pedestrian circumstances. So the NSC has very much been in the lead. It's not that the State Department or the Department of Defense have been cut out. It's simply that this is the top foreign policy priority for better or worse of the administration. And the NSC, which reports directly to the president, wants to ensure that he's being well served.

And I don't, whether it's a, just a talking point or a straw man or not, it is true that the president has 50 years of experience in public service, 50 years of experience dealing with Israelis. He has very strong very fixed views of how to work with Israel, how to work with the Palestinians, how to work with other countries, you know, in the region. And he's not managing the policy on an hour-to-hour basis, but he has a great interest in how this plays out politically, but also he has his views as to what should happen. And it is true, it's not just a political talking point that he is deeply, deeply invested in Israel and Israel's future. He genuinely believes that it is important both for the Jewish people writ-large, but also for the United States and U.S. national security interests. And his advisors are operating with that ideology or within that, that general set of interests that he has laid out.

At times, there's always a risk and seeing this in many administrations where there's self-censoring, you assume, you know where the President or another senior leader is because they have such an established record, then they surprise you and they do something you wouldn't have expected and I think that has happened. I think that there was some surprise when the President issued the executive order on West Bank instability which for the first time led to sanctions against Israeli individuals. So, that's, even when someone has a well-formed view, even when someone has a clearly articulated approach to an issue, there's still a degree of flexibility. Anyone and everyone can change, but there is a tendency to cater to and to accommodate what the policy demand signals are coming, coming from the highest level. So the NSC is very much playing the critical role. And while, from a implementation perspective, the government works best when there is close synchronicity across departments and agencies, you know that's easier said than done, even under normal circumstances. And the reality is the President and the Vice President are the only elected members of the executive branch. Even with Senate-confirmed officials, the American people didn't elect them. The ultimate decision should rest with the President and to a lesser degree with the Vice President under certain circumstances. But the President has very much, has very much driven this and the policy has been a reflection of his view of how to approach Israel.

And again, it's not, I don't think it's particularly a surprise and anyone who looked at President Biden's track record, probably wouldn't be surprised that he would view it this way. I think the frustration that I heard when I was in government and I continue to hear is that he hasn't adapted more based on the feedback he's getting. But we're not computers, we don't automatically assimilate new information and make corrections in real time. It's a much slower process and there has been change. There has been, as I said before, a willingness to be more critical to apply pressure to a certain extent. And one case of that is the decision to withhold the delivery of the 2000 pound bombs. And I think if in 2021, when the President took office someone told me that President Biden would agree to withhold a weapons delivery to Israel. I would have told them that you must be you must be operating on too little sleep or you must be stressed out because that just doesn't seem right. But ultimately he took that decision. So there has been an evolution, it's just as with any conflict, the changes in policy will have a tendency to lag the changes on the ground.

Scott. R Anderson: So you mentioned this arms withholding of arms, which of course it gets to one of the central concerns of the Gaza conflict, which is the manner in which Israel has been pursuing it and the role United States plays within it, particularly as a provider of arms, to a lesser degree intelligence, but primarily arms and armaments. What has the learning been on that? What is your sense about how Israel has pursued this conflict? To what extent has it been giving adequate concern to civilian harm? And adequate concern to the big question, which is what happens next? What is its vision for what comes after the conflict? And how do those intersect with how the U.S. thinks things should happen on both fronts?

Andrew Miller: Regarding how, you know, Israel has approached the conflict, I think there, there are two important factors at play. One is, and this predates October 7^th, it's not that Israel doesn't take steps to avert civilian casualties, they do. But based on my experience, they would choose to engage, to launch military action in contexts where the a priori risk of civilian casualties was much higher than our own military, the U.S. military would feel comfortable doing. So once they do engage they're not trying to deliberately harm civilians, but they're more willing to take military action. They have a higher risk tolerance for civilian casualties than we do. And that's certainly been present throughout this conflict where, we've seen that they've taken some steps in asking populations to leave, but once they leave, they're not, they're opening up and they're using force at times that is not necessary. And that, that is directly related to the decision to withhold the 2000 pound bombs because there were at least some instances where it appears Israel used the 2000 pound bombs, which are designed to take out city blocks, to eliminate one or two militants, which is certainly disproportionate. And I've described as treating a toothache by immediately removing the tooth. It just isn't necessary to use that level of force.

The second factor at play is psychological, and it is the degree of trauma that the Israelis have experienced October 7^th. And that's not to justify the tactics. I think there's an important distinction between understanding and condoning. But I think there was a deep sense of vulnerability, of insecurity, similar to what we experienced in 2001. And Secretary Blinken, Secretary Austin, President Biden have all echoed that point that the United States has been here before. We've been hurt and when we've been hurt, we had every right to respond. We had every right to protect ourselves, but how we do so matters. Unfortunately, we made a number of mistakes that looking back on it, I think the vast majority of Americans would have wanted to avoid. And some of which have had deeply negative consequences that, in some ways exceed the damage done on September 11^th, 2001.

Similarly, out of this sense of fear, this sense of vulnerability I think there was, there's been a greater willingness on Israel's part to use force in ways that they might not have previously because they feel a need to restore their reputation, to restore their perception of military dominance in the region. The government feels a need to demonstrate to a public that is looking for reassurance that they'll do whatever's necessary to protect them. Unfortunately, in some cases that results in actions that could be inconsistent with international law or, you know, at least inconsistent with best practices for how you would conduct operations. So now that's how I view it. I think it's clear that Israel can and should be doing more to protect civilians, and we've seen some changes over time. And generally speaking, the targeting practices of aerial attack have improved, but I don't know that we've seen this, the same level of improvement from ground-based forces. And part of the reason for that is it's much easier for the military leadership to control what a pilot does when they're directly on the radio with him or her and communicating and passing messages. And the pilot can reach back and ask this is what I'm seeing, do I still take the strike? When it's a tank or an artillery installation and there is a perception of threat, you may have a 21-year-old sergeant who has very little experience making a decision and that decision may not be good.

And that's one of the weaknesses of the IDF. Because it's a conscript-based military, most people who are lifers in the IDF become officers. In the U.S. military, I think many would argue the greatest strength is the non-commissioned officer corps. That you have people who spend their entire lives as sergeants and in a modern military warfare, small unit tactics are what is most important. And so having someone there, having a sergeant with 10, 15 years of experience who can advise a lieutenant who might just be out of West Point or somewhere else makes a huge difference, both in terms of achieving the military objective, but also doing it in a way that is fully compatible with concern for civilians. So structurally, Israel could be expected to struggle in these circumstances. And again, the fact that the President made this decision, even though it was a single weapons, a single munition, class of munitions, was an indication of the level of frustration that so many civilians continued to be killed and the need to register with the Israelis that the United States government was not comfortable with this. We'd tried every means of telling the Israelis that the tactics, the approach needed to change. And when private persuasion was not successful, we had to consider some other type of move. I know that's insufficient from the perspective of many folks, and they would've called for that action much earlier, but it nevertheless represented, you know, an important data point, you know, in the conflict.

Scott. R Anderson: What about that question of “day after” planning, because this has been the big, open question since the outset of this conflict is where is it leading? What's the vision for who governs Gaza? Particularly when you hear conversation figures close to people like Ben Gvir in the government talking about reoccupation of Gaza, resettlement of Gaza.

Andrew Miller: Right.

 Scott. R Anderson: The whole range of possibilities includes a lot of really troubling outcomes for from the perspective a lot of people including U.S. policy for the last several decades. So, so, what is the sense of what we see Israelis planning there? And to what extent has the United States been able to exercise leverage to push them in a more, in a direction more, more in line with U.S. interests and policy perspectives?

Andrew Miller: When I was still in government, we had extensive conversations with professionals, security professionals in the Israeli government about day after planning, and they were substantive. They were open and transparent, and I think they were conducted in good faith. The problem was that they didn't have the buy-in of the political echelon to implement or effectuate any of those plans. And Prime Minister Netanyahu, in particular, was hesitant to authorize discussions on the day after precisely because he knew that having that debate would reveal the fissures within his coalition, within his government. Between the Ben-Gvirs and Smotriches who want to reoccupy Gaza and other ministers who are still, center right, but are a bit more pragmatic, that have no interest in Israel remaining in Gaza and could even contemplate a role for the Palestinian authority. So, the conversations took place and they're useful and I think the conclusions or at least hypotheses that we generated would be valuable in a day after scenario. But in the absence of political buy in, they didn't have any place to go and we could only advance them to, to a certain point.

With fairness, though, our discussions with the Palestinians, with other regional players, and even with some of our international partners in Europe and elsewhere haven't been especially better. There had, there has been a reluctance on the part of Arab countries to engage in substantive planning because they were concerned that it would appear they are in some way complicit in Israel's operation. I think that the Palestinians, the Palestinian Authority, had the same concern. And they also are conflicted in terms of their posture towards Gaza, where President Abbas still has, let's say, hurt feelings over the 2007 coup by Hamas in which he was ousted. And that has led to questions about what the PA's willing and capable of doing within Gaza.

So unfortunately, there, there have been good discussions at professional levels, but political leaderships have shied away from it precisely because this is such a politically contested and politically fraught issue. And that is a major concern, because if we are fortunate enough to get a ceasefire, and if it's a ceasefire that is enduring and not just temporary, we're going to find ourselves immediately in the post-conflict period. And as we've learned from our checkered history in post-conflict environments, if you don't have a credible plan, if you don't have a, not just a plan, but a scheme to implement that plan ready to go on day one, you may lose a step on the margin, find yourself far behind. And I think there is a danger of doing that, but it's not that the administration hasn't tried. There's been a lot of effort to push the Israelis, to push the Palestinians, Arab countries, to seriously engage on these issues at the highest level. But the resistance has been so, so strong, and as a result, I really do fear that we are going to be starting from a hole when this conflict does end. But in the grand scheme of things, if the conflict does end, that would be important in and of itself. And at least then we can start thinking about what comes next.

And in that vein, I think the concerns about government structure, how the U.S. postures itself will become more important because no administration, even if this extends in, you know, past, you know, past inauguration and there's a new President is going to be able to sustain the level of attention to personally manage this. There's going to have to be delegation. So in that context, having a special envoy, having someone who's identified as the single point of conflict will become increasingly important. And my view throughout the past 11 months has been, there's no way that the United States and Israel could win the conflict in terms of international public opinion. We could mitigate the damage, we could contain it, but ultimately we both were going to be criticized to varying degrees over what was done. What can be won is the post-conflict period. And I, what I've heard from people since leaving in government is a real thirst, a real hunger to know that when this conflict does hopefully come to an end, that's not the end of this engagement. That the U.S. does not revert back to a more hands-off, laissez-faire posture of just managing the conflict, that there's going to be another serious attempt at making progress towards an end of conflict settlement, ideally from a U.S. perspective, a two state solution. But that there needs to be an effort to do that.

And that's not said with naivete. I think this, that the probability of succeeding is low and that's part of the reason why the administration didn't prioritize this issue. It's part of the reason why they didn't name an envoy at the start of the administration to handle this portfolio. There wasn't an envoy, there weren't negotiations for there to be an envoy. But I think what we've seen and what we've learned over the last 11 months is even if the probability of success is low, there are some circumstances that are so costly that are just intrinsically so detrimental to U.S. interest. We have to try for a more complete outcome. We have to try for conflict resolution. Even when it's the less likely outcome, just because managing and trying to contain losses is going to be so damaging to U.S. interests, it's going to be so damaging to the people, Israelis and Palestinians and other, and other peoples in the region affected by the conflict.

Scott. R Anderson: So, while global attention has been focused on Gaza very understandably and appropriately for the last nine months or more at this point, there has been another crisis of sorts percolating in the other Palestinian territory, in West Bank, the area that you flagged early on as being a point of concern to you when you took this job before October 7^th. When we saw that not culminate, but reach a new height this week with a new wave of military slash militarized police action by Israeli authorities in the West Bank, including with some people in and close to government calling for a Gaza-type operation in West Bank. Talk to us about what the Israeli approach has been, and what's happening there, and how concerned United States should be about it.

Andrew Miller: The United States and the international community should be deeply alarmed by the potential for an uprising or for a conflagration in the West Bank. And as I mentioned earlier, coming into this job, I thought there was a non-zero probability that it could happen during my tenure in the position. All of the trend lines seemed and continue to seem to be moving in the wrong direction where the Palestinian Authority as a governing institution, its legitimacy is practically zero at this point. Financially, the Palestinian Authority doesn't even have the resources to administer governance. And the Israeli government in particular Finance Minister Smotrich has further squeezed, further limited the financial revenues available to the Palestinian Authority. And there is a real sense of disenchantment and frustration amongst the Palestinian people, both with the Palestinian Authority, but just with the absence of any political horizon of any kind, not just a two state solution, but any end to the conflict that would fulfill their needs and their aspirations. At the same time, you know, we have seen the growing expansion, not only of settlements, but of settlement infrastructure and of Israeli military presence throughout the West Bank, which is part of the reason why there's such high levels of discontent amongst the Palestinians. It's part of the reason why the PA is viewed as so illegitimate because they haven't been able to arrest that process. You add to that, that not only is there a growth in settlements, but there is this pernicious growth in extremist settler violence. And I use the term extremist settler violence for a deliberate reason, which is that the vast majority of settlers are not violent and many, settlers lived there for economic, not for ideological reasons.

That doesn't change the legal status of the settlements, but I think it would be unfair to come to a conclusion that all settlers are fanatics, religious or political, in the same way that it would be, it's offensive to suggest that all Palestinians are supportive of Hamas or supportive of violence against civilians, which is obviously, which of course is not the case. And this settler violence, the extremist settler violence we've seen has an interactive effect with Palestinian violence. There is this cycle where there is either a settler violence leading to Palestinian attack, which leads to more settler violence, or there is a Palestinian terror attack and there is a response from extremist settlers and then there's another Palestinian attack. It really is this vicious, this vicious circle that is leading to higher levels of tension and higher levels of contestation. And for perspective, in 2023, the number of Israelis and Palestinians killed was higher than any year since the Second Intifada.0 And we were on pace for that outcome, even before October 7^th. October 7^th just increased it further. So, it's clear that not only is the situation uncomfortable, not only is the situation not moving in the right direction, but it's continuing to regress. And that's directly related to the point I was making before about trying to make progress towards a two state solution or a negotiated agreement of one kind or another that would end the conflict.

There has been this view of conflicts generally, but the Israeli Palestinian conflict in particular, that if you can't resolve it, you can just manage it. You can just contain it. You can just keep it within bounds and it will be okay. You just have to prevent the really bad things from happening. But my observation from this period is that simply maintaining the status quo is not possible. If we're not moving forward, if we're not making progress, then we're moving in the other direction, and it's getting worse and worse and worse. So, the status quo today is worse than the status quo two weeks ago, which was worse than the status quo a month before that, and we're continuing to move in that direction. Hopefully this can be averted in some shape or form or another, but again, everything adds up to there being a, being an explosion at one point or another. And there is a probabilistic element in all of this: it's difficult to predict when something is going to happen. But there is some, probability it could happen on any day. And if you play the game long enough in the same way you gamble, eventually you're going to come up with the right or wrong, depending on your perspective, combination or outcome and things are going to completely explode.

I think it's worth emphasizing that the settler violence, the extremist settler violence had been escalating prior to this Netanyahu government and this is very much a trend of the last five years where it's been increasing. But with the installation of this government and with Smotrich and Ben Gvir acquiring positions of authority relevant to the West Bank and relevant to the treatment of extremist settlers of Palestinians, it has severely accelerated the deterioration taking place and that is not by accident. I believe that they want the situation to explode because their top priority is to kill the two-state solution once and for all. They view the two-state solution as the enemy. While I said not all settlers, and they are both settlers, believe in these political, religious extremes. They are individuals who believe that Israel should be established on the entire land that was the mandate of Palestine controlled by the British after World War I. That it should be Israel, West Bank and Gaza. In fact, Smotrich's party there's one of their symbols is a map of the state of Israel. It not only includes Israel, the West Bank and Gaza, but even Jordan, which was originally part of the Palestine mandate. So it gives you an idea of what their objectives are.

So it's not just a case where things are going in the wrong direction and neither the Israelis nor the Palestinians nor Americans or others with influence are taking the necessary steps. It's the case that there are at least some individuals, and they exist on the Palestinian side as well, with Hamas, with Palestinian Islamic Jihad, with other actors who are not only disinclined to take the steps to prevent an explosion, they want there to be an explosion because they believe it serves their interests. That is a characteristic that is somewhat different from past episodes of tension, where it was more inertia, and an unwillingness to take risks that led to deterioration. Here, deterioration is the deliberate objective of at least some of the members who are involved in all of this. The more recent violence that we've seen, including a failed suicide bombing in Tel Aviv, which was the first time in many years and now this Israeli IDF operation in the Northern West Bank. It's a reflection of just how dangerous the situation has become. And there is a catch-22 in terms of Israeli actions in the West Bank.

Most IDF professionals would say that they prefer that the Palestinian Authority takes the necessary actions because they have at least more legitimacy than the IDF does, even if they don't have a great level of legitimacy. But there are instances where the PA is not capable of doing it, or there are instances where they're not willing to do it. And Palestinians are just like any other people when they believe that their actions could be perceived as advancing the cause of an adversary and the Palestinian Authority security forces are viewed as subcontractors for the Israeli military for Israel. They are subject to ridicule. They're sometimes subject to physical threats, to being injured and killed. You become somewhat less willing to enter into those situations. So, what happens is, Israel sees some degree of Palestinian action, which is important, but it's never enough for the Israelis, so they go in, and they go in and they may eliminate the immediate threat, but in the process, they further delegitimize the Palestinians and the Palestinian Security Forces, which makes it more likely that Israel has to keep going back and forth.

I just say, finally, what the Israelis are saying about Iran's supporting militants in the West Bank, I think that is true. I can't, I don't know what their estimate is of the volume of the level of support, but it's clear that Iran has been providing more and more support, not just to Hamas, not just to Palestine Islamic Jihad, just more weapons, more cash to the West Bank generally as part of their effort to destabilize and present a threat to Israel. And what we've seen in the past couple of years is it's not just Hamas and PIJ that are conducting attacks against Israelis, we're seeing informal groupings of individuals who aren't part of an ideological struggle. Or we've seen Hamas cooperating with more secular oriented militants who have another axe to grind and working together in new ways.

This could be one of Iran's responses to the Haniyeh assassination. They were doing it before, but in the absence of directly striking Israel through another missile attack, which carries a very high level of risk of escalation, providing this type of financial and material support to militants in the West Bank is a way for the Iranians to get at Israel with a lower risk that Israel is going to retaliate directly against the Iranians. That doesn't mean that Iran won't eventually retaliate for the Haniyeh assassination, but it demonstrates that Iran has a number of tools, a number of options to use, to hurt, to undermine the Israelis. And of course, in all of this, in this competition between Israel and Iran, the Palestinian people are caught in the crosshairs and, you know, they're the ones who are suffering the most. They're the ones who are sustaining the greatest casualties or having their aspirations, their futures, the most limited by all of this, you know. And that's part of the tragedy where the people from all countries are suffering in this to one degree or another, but the political games that regional leaders are playing is leading to an outcome that is objectively worse for everyone involved

Scott. R Anderson: The October 7^th massacre and the aftermath of the Gaza conflict is obviously a pretty big shock to the system for the U.S.-Israeli relationship, the U.S.-Palestinian relationship, U.S. engagement with Israeli-Palestinian conflict. And it's a relationship that's been on a trajectory towards change, or at least towards some tension for a while, whether it's, you know, evidenced by the dramatic changes the Trump administration pursued, we discussed earlier. If you look at changes and differences between Republican and Democratic party platforms addressing this issue and expressing reservations about different aspects of the relationship in different ways, the relationships and the approach to the conflict just seems to be on a bit of a trajectory, perhaps in a direction we don't 100 percent know. From your perspective, from having sat inside a lot of these conversations, where do you think those relationships, the U.S.-Israeli, U.S.-Palestinian relationships are headed? And what can or should the United States be doing to try and steer them in a better direction?

Andrew Miller: I think from a U.S. national security interest perspective the longstanding commitment to Israel's security and to the country's future as a Jewish and democratic state, it is of importance to the United States, both for strategic and for more reasons. And hopefully that's a cooperation that can be maintained, that can be developed. But there's pressure on all of that, there's pressure on the security situation. There's pressure on Israeli democracy. There's pressure on the demographics where if there isn't a two-state solution you're going to have a situation where Israel has to choose between democracy and being Jewish. And that's something that would be certainly inconsistent with our values, but it would also be inconsistent with the values of the people who originally founded Israel. Likewise, I think it's manifestly in the interest of the United States for there to be a Palestinian state. Both Palestinians and Jews should have a right to self-determination like any other people.

I think there's this unfortunate tendency and discourse on this issue, reflecting the absolutism with which it's approached to view the two parties as being fundamentally incompatible. That it's one or the other, both national movements cannot succeed. Only one can succeed. And the reality, I think the true reality is that those national movements can not only not succeed, but they can actually thrive if there is a fulfillment, a realization of Israeli and Palestinian nationalism,. That's the only way to secure their futures for the long haul and to ensure that our values, our interests, our strategic perspectives are aligned and we're not forced to make choices that we would rather avoid and that are detrimental to people on both sides of the conflict.

With the Palestinians it's always been a tenuous relationship, but an important one. And for a long period of time, there was an unwillingness to even acknowledge a Palestinian people, not just in the part of the Israelis, but most U.S. plans towards the, not just the U.S., but international plans towards the Israeli-Palestinian conflict, viewed the Palestinians as being in some way derivative of the Jordanians or part of a broader arrangement with Jordan. They didn't necessarily recognize the Palestinian nationalism and as we know 242, UN Security Council Resolution 242 doesn't explicitly address Palestinian nationalism. It doesn't negate it, it doesn't reject it, but it's more focused on the conflict between Israel and the Arab states that were involved in the ‘67 War. As was mentioned before, we saw this contraction, this steep drop in the relationship during the Trump administration, and I think the Biden administration was able to reverse some of that damage, but not completely. And a lot of that progress has been under pressure since October 7^th.

And the, I think the administration, the administration can often be in a different place than Congress. In particular, there is a growing divide in Democratic and Republican views on the Palestinians, less so on Israel. Yes, there are, you know, Democrats who you know, who are anti-Zionist, certainly. But I think still a majority of Democrats are Zionist and believe there should be an Israel. But the major difference between Republicans and between Democrats is the degree to which Palestinian, the Palestinian national movement is legitimate and is important to address in in some manner to allow it to be achieved. And it's going to be very, very hard. The longer the war goes on, the harder it's going to be to repair that damage. Once the war hopefully does end, there will be an opportunity. But again, if we think that simply trying to maintain the status quo, trying to prevent bad things from happening is going to be enough, I think that's mistaken. I think we're going to have to at least make the attempt to make substantial progress. The administration used the term at one point “irreversible progress towards a two state solution”. And ideally where we'd want to wind up with the Palestinians is a U.S.-Palestinian relationship that is not exclusively derivative of the U.S.-Israeli relationship. And for the past several decades, the U.S.-Palestinian relationship has been almost wholly derivative of the U.S.-Israeli relationship. So it is going to face its challenges; it's going to be difficult.

With the Israel relationship, there's going to be, continue to be pressure on U.S. policy. There's going to continue to be pressure within Israel regarding U.S. policy. And the reason for this is not because as I think the Republicans would say that the Democratic Party has become anti-Israel. It's that all of the actors have changed. The United States, the American people have changed. The Israeli people have changed. The Palestinians have changed. When you look at the polling, it's not just people on the left wing of American politics who are more sympathetic to the Palestinians. You see, amongst younger American Jews, that their sympathy, their alignment with Israel exists, but it's not as strong. It's not as unqualified as it was for prior generations of American Jews. And if anything, the strongest supporter of this Israeli government is the evangelical community within the United States. And that is something that Netanyahu and Ron Dermer have leaned into and said, okay, we'll take their support, even though in their ultimate view of the world, you know, the Temple is rebuilt and Jesus returns. And the Jews either convert or are banished to hell, that doesn't matter to, in, in realpolitik. Well, Israel will take their support. I think that's a very dangerous game that, that Prime Minister Netanyahu's playing. And if Israel doesn't try to ensure support from both Democrats and Republicans, from Christians, from Jews. and also have some understanding from Muslims, and Arab Christians and others, it's a recipe for a declining relationship, which is not what we want.

The good news is it can be reversed. I do think that ultimately, if we are able to make progress towards the elusive outcome of a end of conflict settlement, there would be a stabilization. There'll be a stronger basis to justify the continuation of such a close relationship. And we've seen, with respect to our European partners, to South Korea, how U.S. support has persisted for decades well past the incident that led to the relationship in the first place. So the relationship can be put on a better course, but right now we see the Israeli public, the changes are pushing Israel further away from the American people. Changes in the United States are pushing the American people further away from Israel. We have the wrong trajectory in that regard.

So, this gets back to my point that there is an interdependence between Israelis and Palestinians, between Zionism and between Palestinian nationalism. They are constantly at tension with each other, but they can't exist without each other. And they're not going to survive unless they are both addressed, unless they are both allowed to achieve their, their full expression. And the circumstances are more difficult than they've ever been before, but the reality is the alternatives to that outcome are still inferior to what multiple administrations have pursued over decades. And again, for that reason alone, even if it is a low probability outcome, it's worth the current administration, and a future administration after January 20^th, putting some chits on the table and making a push to see what they can achieve. I'm not expecting a two-state solution in the next two years, but we need to start somewhere and simply kicking the can down the road just not only delays a potentially favorable outcome, it reduces the probability we'll ever get there in the end.

Scott. R Anderson: Well, on that note, we are out of time, but Andrew Miller, thank you for joining us here today on the Lawfare Podcast.

Andrew Miller: My pleasure. Thanks for having me.

Scott. R Anderson: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare Materials supporter through our website at lawfaremedia.org/support. You also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for other podcasts, including Rational Security, Chatter, Allies, and the Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. And be sure to check out our written work at lawfaremedia.org. This podcast is edited by Jen Patja, and your audio engineer this episode was Noam Osband of Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.