My latest in
@ForeignAffairs
on US arms in the Gaza conflict and the law of war and its limitations.
Is Washington Responsible for What Israel Does With American Weapons? via
@ForeignAffairs
A must read.
My former colleague Josh Paul resigned today from the
@StateDept
office that approves arms transfers because of the Biden admin's decision to rush arms to Israel.
I have deep respect for Josh and I know he did not take this decision lightly.
Read his letter.
Somehow I don't think
@StateDept
would defer to Russia as a credible source to investigate itself if a mass grave were discovered in Ukrainian territory it had occupied.
I asked the State Dept. today about the U.S. response to the discovery of apparent mass graves at a Gaza hospital — which has been to ask the Israeli govt. for more information.
— “And do you believe the govt. of Israel is a credible source in enlightening you?”
— “We do.”
In case you missed it:
In the last day, the US bombed Iraq, Yemen, and Somalia.
Like a return to good old GWOT days, except the US government is not even pretending these military actions have anything to do with threats to the US homeland.
Use of military force on autopilot.
I used to be a war crimes lawyer at
@StateDept
.
The Secretary of State's explanation at today's briefing for why the Department could assess the commission of war crimes in Ukraine but not Gaza is unconvincing.
Add this to the growing list of incidents about which the US should be asking Israel tough questions.
Warning civilians to evacuate and then (apparently) bombing evacuees requires an explanation.
The US has responsibilities to guard against facilitating LOAC violations.
Without commenting on the legal merits of the proceedings instituted by South Africa before the ICJ, it is notable that administration officials are willing to publicly opine on international law here but not when asked whether Israel is complying with the law of war in Gaza.
White House National Security Council spokesman John Kirby calls South Africa’s 84-page suit accusing Israel of genocide “meritless, counterproductive, and completely without any basis in fact whatsoever.”
Looking forward to someone explaining to me what the legal basis is for the IDF firing on civilians returning to northern Gaza or even seeking to bar their return in the first place.
Forget sanctioning the Houthis. Why hasn’t the US Navy leveled their military bases yet? And if Iran resupplies, destroy the Iranian navy too. You can’t let this two bit militia disrupt global trade. Enough already.
Seeing commentary that ICC arrest warrants against Israeli officials would create a dangerous precedent because Israel isn’t a party to the Rome Statute.
Guess who else isn’t a party to the Rome Statute?
Russia.
ICC already crossed that bridge with warrant for Putin.
In the
@washingtonpost
, my former
@StateDept
colleague Josh Paul describes how the normal process for approving arms transfers—including safeguards to mitigate the risk of civilian casualties—was circumvented in the rush to transfer weapons to Israel.
There’s a whole policy toolkit that the US government regularly uses to try to shape the behavior of other states and has used with Israel in the past.
Considerable leverage with Israel given extent of U.S. military/diplomatic support.
Learned helplessness as foreign policy.
Q: What leverage are you willing to use with Israel?
STATE DEPARTMENT: "There is a mistaken belief that the United States is able to dictate to other countries sovereign decisions. Israel makes its sovereign decisions."
Josh Paul, the
@StateDept
official who resigned over rushed arms transfers to Israel, indicates that the Biden administration is not implementing its own Conventional Arms Transfer policy for those weapons, including regarding anticipated law of war compliance.
The US has been engaged in hostilities in the Red Sea with the Houthis since mid-October.
The War Powers Resolution’s 60-day clock already ran out.
This is not a one-off strike, but instead a further attack in an ongoing conflict unauthorized by Congress.
@ryangrim
@OmarBaddar
Can you name any one-off military strike by the US, the good ones or the bad ones, in the last century that has been approved by Congress in advance? A single one?
GAZA/JERUSALEM, Jan 24 (Reuters)-Tank shells hit a U.N. training centre sheltering tens of thousands of displaced people in Khan Younis, killing at least nine people and wounding 75, a senior U.N. relief official said, as Israeli forces advanced through the southern Gaza city.
Given continued US arms transfers to Israel, the United States should in fact be checking Israel’s “homework” including to ensure US weapons won’t be used to facilitate law of war violations.
Q: Has the IDF provided any plans to protect civilians ahead of any kind of ground invasion?
PENTAGON: "I'm not aware of any plan fully presented to the United States to review. Again, we are not asking to check their homework."
This contrast is inescapable and severely undermines the US government’s pious rhetoric about civilian casualties and the law of war in connection with Russia’s illegal war on Ukraine.
US officials when Palestinian civilians are killed: “That’s what war is, it’s brutal, it’s ugly”
US officials when Ukrainian civilians are killed: *chokes up* “It’s difficult to look at some of the images and imagine that any well-thinking, serious, mature leader would do that”
Section 620I of the US Foreign Assistance Act bars military aid to states who restrict US humanitarian assistance.
With children starving in Gaza, it is past time for the Biden administration to apply the law.
My latest in
@just_security
.
🚨
"Members of the Israeli security and political establishment told the U.S. diplomats that the eradication of Hamas would require methods used in the defeat of the Axis powers in World War II."
Developments in LOAC may prohibit some of those methods.
Looks like the candidates at this forum will be trying to outbid one another in a contest for most over-the-top and unhinged statements about the conflict in Gaza.
Vivek Ramaswamy to the Republican Jewish Coalition: "I would love nothing more than for the IDF to put the heads of the top 100 Hamas leaders on stakes and line them up ... "
🧵The US has filed its "Article 51" letter arguing that recent US airstrikes on "militia groups affiliated with Iran's Islamic Revolutionary Guard Corps" constituted lawful self defense.
I used to draft these documents.
This one is inadequate. 1/n
Add the “Axis of Evil” speechwriter to the list of luminaries giving us the benefits of their insights on the Gaza conflict.
Ranks up there with Fabio, Hillary Clinton, and George W. Bush.
The Leahy Law is just one of many legal provisions the Biden admin has disregarded after 7 October, in addition to:
—Arms Export Control Act
—Section 620I of the Foreign Assistance Act
—War Powers Resolution
—Int’l law on aiding & abetting war crimes
New: Blinken has known for months his own experts concluded multiple Israeli units should be disqualified from U.S. aid for flagrant human rights abuses.
And for months, he's sat on those recommendations. "They've been sitting in his briefcase."
.
@IlhanMN
is an important voice in HFAC and Congress on matters of war, peace, and human rights.
The racist, sexist, and Islamophobic attacks on her are disgusting and disgraceful.
They just hate an African refugee who is Muslim having the power to shape policy in our country.
Their opinion won’t change the outcome of my election or the support of my constituents. My constituents didn’t just graciously welcome refugees to MN, they sent one to Congress 💪🏽
The United States has submitted an Article 51 to the UN Security Council, laying out its argument that recent US strikes in Syria were lawful measures of self-defense. A few observations as someone who used to write these letters. 1/n
AP: “4 US officials familiar with the discussions said American diplomats became increasingly alarmed by comments from their Israeli counterparts regarding their intention to deny water, food, medicine, electricity & fuel into Gaza, as well as inevitability of civilian casualties
Alex Jones says the Trump arrest is timed with the ICC charging Putin for “evacuating children from a war zone,” because globalists are trying to stop people who won’t go along with their plans. (Putin had Ukrainian children kidnapped and shipped to Russia).
Biden admin on course to be less transparent about the legal basis for US military operations in Syria than Trump admin. 7 weeks and no response to the bipartisan letter from
@RepPeterDeFazio
@NancyMace
and others posing a number of war powers and AUMF related questions. (1/2)
It’s been 7 weeks since I led a bipartisan letter to the Biden Adm asking their legal basis for ongoing US military involvement in Syria. Still no response. These recent strikes are only the latest in an escalating military conflict that Congress has not authorized.
Except the attacks didn't stop.
A few things that happened after Trump's strike on Soleimani in January 2020:
--a ballistic missile barrage against Al-Asad airbase (100+ TBIs)
--fatal attack on US troops at Camp Taji in March 2020
The undying myth of "restoring deterrence."
Appropriate to be cautious in drawing any factual or legal conclusions about this situation.
But particularly given US military support for Israel, the USG needs to get to the bottom of this mass grave matter ASAP and that requires independent fact finding.
UN Resolution 1441 gave Iraq one “final opportunity” to disarm. But, as
@mehdirhasan
points out, it did NOT authorize Bush and Blair to launch an invasion of Iraq.
So wouldn’t that make the invasion illegal? Mehdi asks
@RadioFreeTom
.
Circling back on this, his whole “take the oil” schtick, whether he’s talking about Iraq, Syria, or Venezuela, epitomizes his distinctive combination of profound ignorance and lawlessness.
If you think this is just campaign rhetoric for the rubes, file a FOIA request.
This is Baghdad Bob and Sean Spicer level of self-delusion.
Kirby: "Name me one nation that is doing more to alleviate the pain and suffering of people in Gaza than the United States. You won't succeed, it just won't work!"
"The orders are basically from the commanders on the ground is just 'shoot every man in fighting age.'"
Seems like information the
@StateDept
might want to take into consideration in deciding on arms transfers to Israel.
CNN Political & Foreign Policy Analyst Barak Ravid joins Anderson to analyze what went wrong when an Israeli attack in Gaza killed seven aid workers, including foreign nationals, from Chef José Andrés non-profit, World Central Kitchen.
Seems like
@StateDept
ought to be investigating a report that a U.S. origin bomb hit a compound housing medical personnel.
Gaza: IRC and MAP additional statement on airstrike on residential compound housing Emergency Medical Team via
@RescueOrg
NEWS: Somali, U.S. forces engaged insurgents in support of the Federal Government of Somalia on Aug. 14
The command’s initial assessment is that the strikes killed 13 al-Shabaab terrorists and that no civilians were injured or killed.
More:
I used to advise
@StateDept
on law of war assurances.
If Ambassador Lew buys these Israeli assurances, I have a bridge he’ll also be interested in purchasing.
SCOOP: US Ambassador to Israel Lew on Tuesday privately endorsed Israel's claims it's abiding by US law in using American weapons + sending aid to Gaza—alarming US officials who say that's untrue + setting up the Biden admin for a bigger fight with lawmakers, humanitarian groups.
The President of the United States has essentially accused Israel of committing war crimes (USG views indiscriminate attacks as war crimes), but the US government refuses to factor that conclusion into decisions on arms transfers.
On Tuesday, Biden said Israel was carrying out "indiscriminate bombing" in Gaza. On Wednesday, administration officials told CNN Biden has "no plans to shift its position and draw any red lines around the transfer of weapons and munitions to Israel."
People at
@StateDept
who continue to facilitate arms transfers to Israel need to think long and hard about whether the orders they are executing are lawful and whether they are risking complicity in law of war violations.
New: The Biden administration recently authorized the transfer of over 1,000 500-pound bombs and over 1,000 small-diameter bombs to Israel.
The transfer authorization of the MK82 bombs and small-diameter bombs, more than 2,000 munitions in total, occurred before an Israeli…
Sorry,
@SecBlinken
but
@StateDept
needs to be making those assessments about law of war compliance *now* if the United States is considering sending additional arms to Israel, both as a legal matter and under the administration's own Conventional Arms Transfer Policy.
Asked by
@APDiploWriter
if he believes Israel has respected the laws of war thus far,
@SecBlinken
says, “There will be plenty of time to make assessments about how these operations were conducted”
While we continue to collect information, our current assessment, based on analysis of overhead imagery, intercepts and open source information, is that Israel is not responsible for the explosion at the hospital in Gaza yesterday.
🧵The White House has released the War Powers notification for the Jan 11th US strikes on the Houthis in Yemen.
A few observations from someone who helped draft the last WPR report for US strikes on the Houthis 2016. 1/n
In addition to significant war powers and policy considerations relating to escalation, this exchange also raises the question of what the US views as Israeli territory.
Does the Biden administration consider the unlawfully annexed Golan Heights to be "Israel?"
Q: If Iran is to strike a target inside Israel, would the Pentagon be obliged to respond?
PENTAGON: I've highlighted our ironclad commitment to Israel's security.
Very serious, well thought out counter-drug proposals from DeSantis here.
Invade Mexico.
Blockade Mexican ports.
These measures will definitely stop the fentanyl epidemic and I can't imagine any possible downsides.
It is possible that unconditional U.S. military assistance to Israel speaks louder than the entreaties from the administration to mitigate civilian casualties in Gaza.
Israeli airstrikes hit the densely-populated Jabalya refugee camp again, killing 27 people and wounding more than 100, according to Gaza's Ministry of Health. Via
@catebrown12
and
@joesnell03
Good exchange between
@AymanMSNBC
and
@RepDean
on Israel’s dubious law of war assurances.
In short, if you believe these assurances, I have a bridge to sell you.
Will the U.S. accept reassurances from Israel that it has NOT broken U.S. or International law?
@RepDean
says she is “gravely concerned that Mr. Netanyahu, in the prosecution of this war, has been in violation and that the assurances are not great enough.”
As I wrote in
@ForeignAffairs
last year, the "creative" theories cooked up by the US executive branch to justify ongoing US military operations in Syria erode the legal constraints on the use of force and increase the likelihood of future conflict. 5/n
The US government also opposed an independent investigation when US forces attacked an MSF hospital in Kunduz, Afghanistan in 2015, killing 42.
Independent investigations are for US adversaries, not for the US and its friends.
A spokesperson of the U.S. government says the Biden administration doesn’t think it is “appropriate” for there to be an international investigation into the destruction of the hospital in Gaza.
Why would the U.S. oppose such an investigation if it believes Israel didn’t do it?
Option 1
Less War: Quiet down the Red Sea by pushing ceasefire in Gaza.
Option 2
More War: Fuel Gaza conflict with unconditional military support and bomb the Houthis for unclear and possibly unattainable ends.
Looks like US government has gone with option 2.
There’s another significant legal issue lurking here.
An attack on Iran of the sort reportedly contemplated by this “war plan” would likely have been illegal.
Reminds me that Kissinger was just being celebrated by US officials.
Recall he had certain positions of authority in the US government during this bombing of Laos.
"Less than 1% of the dormant bombs have been cleared since the war ended in Laos...Even as the numbers gradually decline, thousands continue to be killed, crippled and disfigured. Half the victims are children."
A generation that has grown up in peace and prosperity jonesing for the rush of having their own version of the 1960s, and looking desperately to shoehorn every cause into a replay of what they think their boomer grandparents were doing
“The first war crimes were committed by Hamas” is a strange formulation suggesting subsequent war crimes were committed by someone else in this conflict.
Full throated .
@POTUS
endorsement of
@IDF
operation on Al-Shifa: "The first war crimes were committed by Hamas. By having their headquarters, their military, under a hospital. That’s a fact. That happened."
"We’ve discussed the need for
@IDF
to be incredibly careful."...
Last November,
@LeaderMcConnell
pleaded with Barr to publicly shoot down Trump's claims of election fraud.
“Look, we need the president in Georgia,” he told Barr, “and so we cannot be frontally attacking him right now…You are really the only one who can do it.”
As a result of the Gaza conflict, the United States has involved itself in a regional conflict without congressional authorization or even a plan.
US forces are being targeted in/from Syria, Iraq, and Yemen.
Time to think much harder about de-escalation.
Iran is an existential threat to the U.S. and our allies in the region and must be held accountable for the murder of 3 U.S. soldiers. The President must respond. I pray for the families of those lost and injured.
Everything else aside, this invocation of Article 51 from Iran's mission to the UN is more legal argument for its use of force than Israel has provided for the Damascus attack or any of its other strikes in Syria.
Interested to see if it is followed with an Article 51 letter.
More fundamentally:
Why are US forces at Tower 22?
What is the mission they’re supporting at Tanf?
Does it have a legal basis?
Is the game worth the candle?
Tower 22, the US base in Jordan where 3 soldiers were killed in a drone attack last month, had "minimal if any" anti-drone defenses, soldiers who served on the base recently tell me:
🚨Israeli Minister of Defense Yoav Gallant will come to Washington next week with a long list of U.S. weapons Israel wants to receive in an expedited manner, two Israeli and U.S. officials told me. My story on
@axios
Three reactions:
1) ICC can’t arrest anybody, it depends on individual states for that. No ICC SWAT team to arrest Hamas.
2) Any arrest warrants for Israeli officials likely to be paired with warrants for Hamas leaders (eg hostage taking).
3) No ICC jurisdiction for Syria.
For months, families of Oct. 7th victims urged the ICC to arrest Hamas leaders for the worst massacre of Jews since the Holocaust. Instead the ICC apparently considers warrants on Israeli leaders for legitimate self-defense. Such a decision would be outrageous & I condemn it. 1/3
Which should raise the question of what exactly US forces are doing at Al Tanf garrison these days.
Both Pompeo and Bolton boasted in their memoirs about keeping US troops at Tanf to counter Iran, instead of the ostensible US mission in Syria of fighting ISIS.
BREAKING: Senior DoD official says Russia continues "concerning" activities in Syria. Just this morning Moscow flew a surveillance mission over Al Tanf garrison. The ISR aircraft was in that space for "an extended period of time" in order to collect on the garrison.
Blinken also faced intense pressure both from members of Congress, including House Speaker Mike Johnson (R-La.), U.S. Ambassador to Israel Jack Lew and other senior officials in the administration who opposed the move, two Israeli and U.S. officials said
President Biden seems to characterize earlier Israeli operations in the Gaza conflict as “indiscriminate bombing.”
(The US government regards indiscriminate attacks to be war crimes.)
Quick--but notable--comment from POTUS tonight as he was defending the Israeli military operation on the Al-Shifa hospital. At the very end of his answer, POTUS seemed to differentiate from previous IDF military operations as he used the term 'indiscriminate bombing.'
🧵
The US war on terror continues, with recent airstrikes in two different countries against two different jihadi groups--neither of whom existed at the time of the 9/11 attacks. 1/n
Conspicuously absent from this
@CENTCOM
statement is any mention of the legal basis for these latest hostilities. Yesterday’s statement about the US airstrikes direct by President Biden cited Article II of the Constitution as the legal authority.
Unlike any other unclassified, 48-hour War Powers report, this letter does not specify what it is reporting.
Neither the military action nor the location are identified. 2/n
Spoke with
@leloveluck
of
@washingtonpost
about LOAC and Gaza.
“Even if there is a legal justification for each and every airstrike in Gaza, this conflict has been catastrophic for the people of Gaza. Falling within the law only gets you so far.”
The Biden administration has yet to renounce Trump’s recognition of this illegal land grab.
Hard to square this inaction with the US government’s principled and righteous stance on Russia’s illegal annexations of Ukrainian territory.
“It’s about time. In late 2021, the United Nations estimated that this war, started by the Saudi leader with U.S. support, had killed or starved 377,000 people.”
Troubling response by
@StateDeptSpox
when asked whether
@StateDept
is making determinations about Israel's LOAC compliance.
Answer is basically "no."
I used to assess partner LOAC compliance for
@StateDept
, including for arms transfers.
Problem if that isn't happening now.
Even setting aside the lawfulness of these demolitions under the law of war, the Israeli creation of a "buffer zone" within Gaza runs afoul of the US position on "no reduction in the territory of Gaza."
Your reminder that Bill Barr’s legal opinions from his time as head of
@TheJusticeDept
’s Office of Legal Counsel remain on the books.
Including one that would authorize the president to unilaterally wage a war of aggression.
As do opinions by torture program figure John Yoo.
In late 2020 I wrote in New York Mag that prosecutor Nora Dannehy resigned from John Durham’s probe - because Bill Barr was pushing for the release of an interim report before the 2020 election to discredit Biden and elect Trump. Barr denied my story at the time. Dannhey…
“‘If the United States threatened to suspend aid to Israel, maybe my son would be alive today,’ John Flickinger told The Associated Press.”
His son, tens thousands of Palestinians, and a number of Israeli hostages might still be alive if the U.S. had used leverage earlier.
As is all too common, US armed forces engage in hostilities in Africa and the U.S. public only learns of it months after the fact.
How many Americans knew their country was at war in Kenya?
Most significantly, the document reports (for the first time I believe) a January 10 attack on US and Kenyan forces in Kenya by Al Shabaab.
US forces responded with small arms and mortar fire to the attack.
Quite a criticism of IDF standards from former CIA Director Leon Panetta: “You have to be able to verify, to take time…and I have to tell you that in the past, at least in my experience, the Israelis usually fire and then ask questions.”
A response more consistent with US law and policy would be:
“We are investigating this matter, including to ensure that no U.S. support is facilitating law of war violations.”
Of course, the admin refuses to enforce relevant US law and its own stated policies.
Reporter: Here’s a disturbing image of an Israeli soldier violating international law, how do you hold them accountable?
StateSpox: We leave it to the IDF to speak to those situations and ask them to respect humanitarian law.
So, nothing. We do nothing to hold them accountable.
Still surreal that Pompeo gave a speech entitled, "Restoration of Deterrence: The Iranian Example", five days after the ballistic missile attack on US troops.
Army awards 39 more Purple Hearts for troops hurt in Iranian missile attack that Trump downplayed
CC
@mikepompeo
and all the other faux tough on Iran guys
Old enough to remember when the Obama admin finally paused PGM transfers to Saudi Arabia in 2016 after RSAF bombed a funeral full of civilians in Yemen.
And Biden admin doing same again in 2021.
USG regularly having to relearn lessons about risks of arming reckless partners.
New: the Biden administration last week paused a shipment to Israel of some 1,800x 2,000-lb. bombs and 1,700x 500-lb. bombs over concerns of about a potential Rafah ground invasion, a senior administration official confirms to
@AlMonitor
.
An Israeli strike on a home in Rafah where displaced people were sheltering killed at least 25 people, including a 2-year-old boy and his newborn sister.
The number was revised closer to 300 bodies. If Israel and Egypt let the int’l press in you’d have throngs of TV reporters tonight doing live shots on the edge of this mass grave.
The letter neither specifies the groups who attacked US forces nor the groups the US targeted in response.
The letter does specify from where the fatal drone attack on US forces was launched. Syria? Iraq? 2/n
Since Yoo is back in the news in connection with Thomas and his Nazi-memorabilia-collecting benefactor, your regular reminder that OLC opinions Yoo wrote are *still* on the books.
Here's one holding the President could wage GWOT solely under Article II.
Option 1:
Use US leverage to compel the largest recipient of US military assistance to allow in sufficient humanitarian aid to Gaza.
Option 2:
Resort to desperate workarounds such as air drops and apparently building a new port.
Looks like USG chose Option 2.
BREAKING: President Biden has ordered the US military to establish a port at Gaza to receive humanitarian aid, per administration officials.
President Biden will announce the plan tonight during State of the Union address
New essay in
@ForeignPolicy
. Today is the 20th anniversary of US invasion of Afghanistan. Despite withdrawal of US forces and rhetoric about ending endless wars, the US "war on terror" continues. Reform of 2001 AUMF is needed to truly rein in this war.
Reminder: From 2015 onwards the United States could have pulled the plug on the Saudi air war in Yemen. Helping the Saudis (through arms sales and maintenance/sustainment of aircraft) bomb hospitals, markets, prisons, and a school bus full of kids was a choice.
Tom,
@RepCasten
and
@RepSusanWild
are calling for an end to US troop protection to Gulf partners. If Saudi Arabia and the UAE want to help Putin keep oil prices high, they should look to him for their defense.
Read their statement below:
BREAKING NEWS: Chair
@SenatorDurbin
is introducing the War Crimes Accountability Act, which will strengthen our laws to ensure war criminals and perpetrators of crimes against humanity—like Russian forces in Ukraine—cannot find safe haven in the U.S.
This investigation into a seeming IDF attack on an MSF facility in Gaza should prompt the
@StateDept
to do its own inquiry and not simply accept IDF claims it was responding to "terror activity."