Biden administration makes clear it has no plans to place conditions on military aid to Israel despite pressure from lawmakers

A picture taken in southern Israel near the border with the Gaza Strip on December 11, 2023, shows smoke billowing during Israeli bombardment on northern Gaza, amid continuing battles between Israel and the militant group Hamas. (Photo by Menahem KAHANA / AFP) (Photo by MENAHEM KAHANA/AFP via Getty Images)

A picture taken in southern Israel near the border with the Gaza Strip on December 11, 2023, shows smoke billowing during Israeli bombardment on northern Gaza, amid continuing battles between Israel and the militant group Hamas.Menahem Kahana/AFP/Getty ImagesCNN — 

The Biden administration currently has no plans to place conditions on the military aid it is providing to Israel, officials told CNN, despite growing calls by Democratic lawmakers and human rights organizations for the US to stop providing weapons unless Israel does more to protect civilians in Gaza.

Speaking to Democratic donors in Washington this week, President Joe Biden acknowledged that he has had tough conversations with Israeli Prime Minister Benjamin Netanyahu about Israel’s military campaign, how Israel is losing international support, and the need for a two-state solution led by the Palestinian Authority. But he said even throughout those discussions, “we’re not going to do a damn thing other than protect Israel in the process. Not a single thing.”

Echoing that sentiment, US officials told CNN that the US has no plans to shift its position and draw any red lines around the transfer of weapons and munitions to Israel. They noted that the administration already expects allies and partners to use US-made equipment in accordance with international humanitarian law and pointed to Israel’s practice of embedding military lawyers with Israel Defense Force units who determine beforehand whether a strike will be proportional and legal.

But rather than independently assess each Israeli strike that the US deems concerning or disproportionate, the US leans on Israel to justify strikes after the fact, a US official said. And while Biden said last month that conditioning aid was a “worthwhile thought,” the president ultimately believes that a strategy of quiet pressure on Israel to change its tactics has been more effective than threatening to withhold weapons, the official said.

In a move underscoring how committed the US remains to arming Israel, the State Department transmitted an emergency declaration to lawmakers late Friday night for the sale of thousands of tank munitions to Israel, bypassing the standard 20-day period that congressional committees are typically afforded to review such a sale.

The State Department did not provide any assurances to lawmakers that the administration would monitor how the munitions are used, a congressional source told CNN, and some Democratic lawmakers were unhappy with the move.

“It’s a mistake for the Biden admin to bypass Congress to approve the sale of tank ammo for Israel amid unacceptable civilian harm,” Democratic Sen. Elizabeth Warren of Massachusetts said Monday on X. “Weapons transfers demand public scrutiny and thorough review. U.S. military aid should be contingent on upholding our values and international law.”

Contrast to conditions on Ukraine

The US places conditions on the military equipment it provides to Ukraine and has made clear to Kyiv that it cannot use US-provided weapons to attack inside Russia. But there are no such red lines on the aid being provided to Israel. The US has advised Israel against opening another front in the war by launching a large-scale attack on Hezbollah, officials said, but has not threatened to cut off aid if they do.

In its supplemental funding request to Congress, the Biden administration included provisions that would lift several existing limits on US weapons transfers to Israel. The provisions would waive the current monetary cap on replenishing Israel’s internal stockpile of US-provided weapons, known as the War Reserve Stockpile Allies-Israel, allow the Pentagon to transfer weapons to Israel even if they are not obsolete or surplus to the US’ own stocks, and shorten the amount of time afforded to Congress to review weapons sales to Israel.

Asked on Monday about reports that Israel used US-supplied white phosphorus munitions in an attack that injured civilians in southern Lebanon earlier this year, National Security Council spokesperson John Kirby told reports that “any time that we provide items like white phosphorous to another military, it is with the full expectation that it will be used in keeping with those legitimate purposes and in keeping with the law of armed conflict.”

The US does not consider the death of civilians as the result of a military operation to be itself a violation of the law of armed conflict, one of the US officials explained. Rather, the US is judging the legality of Israel’s operations on whether its strikes are proportional and seeking a legitimate military target. But officials acknowledge they are not conducting real-time assessments of each Israeli strike, what weapon was used, and how many civilians were killed as a result.

That is at least partly because it is “nearly impossible” to do so in such a high-intensity war zone, two officials explained. Israel also purchases weapons from several different countries and does not tell the US each time it uses a US-provided bomb or munition.

But human rights organizations have demonstrated that such an accounting, even if limited to case-by-case studies, is possible. An investigation by Amnesty International released last week found that a US-made Joint Direct Attack Munitions guidance system was used in two Israeli airstrikes in Gaza in October in which 43 civilians are said to have been killed. The US has provided approximately 3,000 JDAMS to Israel since October 7, one source familiar with the US’ weapons sales to Israel told CNN.

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A senior defense official told CNN on Monday that while the Pentagon is not conducting a formal review of the Amnesty report, officials on the Pentagon’s Civilian Harm Mitigation and Response team “will consider the report along with other publicly available information related to civilian harm as they carry out their responsibility to advise senior DoD leaders.”

Some lawmakers and human rights activists argue that the US appears to be shirking its obligation under international law to keep track of how Israel is using US-provided weapons, particularly the larger “bunker-buster” bombs that leave a signature and fragmentations that the US could assess. The US has provided at least 140 such bombs to Israel, the source familiar with the weapons sales said.

“The US may share responsibility for serious violations of international humanitarian law committed by Israel with US-supplied weapons, as all states have a duty not to knowingly contribute to internationally wrongful acts by other states,” Amnesty warned in a statement.

The Hamas-run Gaza Ministry of Health says over 17,000 Palestinians have been killed since Israel declared war on Hamas on October 7, when the organization killed over 1,200 Israelis in the worst terror attack in Israel’s history.

The Biden administration is keeping track, to some extent, of how many US-provided bombs Israel has used in the war. In closed-door briefings to lawmakers, officials said the intelligence community estimates that Israel dropped 22,000 US-provided guided and unguided bombs on Gaza in the first six weeks of war, according to a source with direct knowledge of the matter.

Democratic lawmakers have stepped up their calls for the US to do more. Last week, more than a dozen Senate Democrats announced they would be supporting an amendment to the Biden administration’s supplemental funding request that would require the president to verify to Congress, within 30 days, that countries receiving US military aid as part of that supplemental are using it in accordance with international humanitarian law and the law of armed conflict.

“It is imperative that all assistance to Israel abide by U.S. and international law, prioritize the protection of civilians, assure the provision of desperately needed humanitarian assistance to civilians in Gaza, and align with a long-term vision for peace, security, and two-state diplomatic solution,” Democratic Sen. Ed Markey of Massachusetts said in a statement last week.

Language in the annual intelligence authorization bill for 2024, if passed, would also require the intelligence community to notify Congress if any US-provided intelligence used by a third nation results in civilian casualties. The legislation was written before October 7, but has gained new relevance as scrutiny around Israel’s use of American aid in Gaza has grown.

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