Selling American Bombs

Martin Luther King once called the United States government “the greatest purveyor of violence in the world.” That formulation may be controversial, but no one denies that the US is by far the world’s biggest arms dealer, with a 42 percent share of the global arms export market.   

Since the Cold War, Congress has passed various laws to govern the sale and financing of American weapons and humanitarian aid to foreign states. These laws, which have changed with the wars and conflicts of the intervening decades—and with the balance of powers in and between the Congress and the White House—impose limitations and notice requirements on certain kinds of transfers. 

Since October, arms transfers have become one point of tactical conflict over the US’s support for Israel’s genocide in Gaza—by those hoping to end that support and those looking to extend it. This week, months after the Biden administration declared Israel’s still ongoing invasion of Rafah, Gaza’s southernmost city, to be a “red line” for the US, Congress was notified of a new $20 billion arms sale to Israel. Meanwhile, Palestine solidarity activists have demanded that Vice President Kamala Harris, the Democratic nominee for President, endorse an end to such transfers altogether to compel Israel to end the war. In response, the Harris campaign clarified that Harris “did not support an arms embargo on Israel,” a statement which constitutes “one of her first firm policy positions.”

To understand the mechanics of the US role in supplying weapons and military equipment to foreign governments, Phenomenal World contributing editor Tim Barker and writer Dylan Saba spoke with Sarah Harrison, an attorney formerly employed by the Department of Defense’s Office of General Council. Among other roles, Harrison specialized in DoD humanitarian assistance, foreign disaster relief, the Leahy law, Women, Peace, and Security issues, and African affairs. She is currently a Senior Analyst at the International Crisis Group.

An interview with Sarah Harrison

DYLAN SABA: What happens when the US makes an arms transfer? What is the chain of decision making across the President, the Congress, the Defense Department, through to the delivery of weapons?

SARAH HARRISON: There are two legal categories that determine the course of an arms transfer, which depends on the type of purchase: whether a country is purchasing equipment from a private company versus equipment from the US government. The latter is classified as foreign military sales, or FMS. The former is a direct commercial sale, or DCS.

For foreign military sales, a country can purchase arms or defense articles (broadly, military-type equipment) using its own money or through foreign military financing, the acronym for which is FMF. FMF, generally speaking, is US-granted security assistance.

A lot of people are familiar with the fact that Israel receives from the US the most foreign military financing of any country in the world—close to $4 billion a year. Of the $3.8 billion that Israel annually receives, most of it is foreign military financing, which is used to purchase US-made weapons through foreign military sales. In April, Congress passed an even larger amount, as part of a big international security package with transfers to Ukraine, Israel, and Taiwan.

Once a request for a sale is made, there’s an internal review process in the State Department, which approves FMS cases, and DoD’s Defense Security Cooperation Agency (DSCA) oversees and executes the cases. This interagency process can be coordinated with the White House, but they are rarely involved in every sale to every country—different administrations have different policies regarding which sales get flagged.

Once the request is approved by the State Department there is, for certain major arms sales to most countries, a legal requirement in the Arms Export Control Act (1976) that the Executive branch notify Congress thirty days prior to issuing a letter of acceptance allowing the sale to formally move forward.¹ 

That thirty day period is the time in which Congress can act if they want to prevent a sale from happening. But for NATO allies, Israel, and certain other major partners of the US, that window is actually fifteen days. (“Ally” in this context specifically means a country that the US has a defense pact with, so Israel is typically referred to as a “close partner” in the US government for these purposes. At least that is how we referred to Israel in the Office of General Counsel at DoD when I worked there from 2017–2020.) A formal notification of an arms sale goes to the Senate Foreign Relations Committee, to the House Foreign Affairs Committee, and to the Speaker of the House. Each gets a notification, but in practice, for foreign military sales, the administration usually first has informal discussions with the majority and minority parties in each committee. They call this getting “four corners” approval because it’s the chair and ranking member on the House Foreign Affairs and the Senate Foreign Relations committees—these four give an informal nod indicating they won’t oppose the transfer. Then the executive branch moves forward with the formal notification and the sale, knowing it won’t get held up. There has never been an arms sale that’s been successfully stopped during the Congressional notice period.

(During the Trump administration, Congress did pass a joint resolution of disapproval—the formal term for stopping an arms transfer—in protest of an arms sale to the United Arab Emirates, but Trump vetoed.)

The notification process is similar under direct commercial sales, except it all runs through the State Department, which issues the export license to the private company selling the defense articles. Before the State Department issues an export license for that sale, they give the same thirty-day notification to Congress—though that is fifteen days for NATO allies, Israel, and other close US partners. Once the Congressional notice window has passed, the export license can be issued and then the procurement process starts: the company can build the defense article or provide the defense services for that foreign country.

Congressional notifications are only required by law when sales meet a certain threshold—and these thresholds are higher for NATO allies and major partners.² For example, if there was a foreign military sale with India of, say, $14 million for major defense equipment, Congress would be notified, but that wouldn’t be the case for a NATO member or for Israel.

DS: What kind of details are getting shown to Congress?

SH: Congressional notifications include detailed information about the sale, including the recipient country and a description of the amount and types of equipment and/or services that will be provided. Now, if a President wanted to get around this notification period, they could apply the emergency waiver, which requires a detailed description to Congress of the equipment and/or services and the emergency that requires the sale or issuance of an export license in the national security interest of the US. But overall, the institutional culture is that Congress is familiar with the executive’s foreign policy justifications, and they’re the body that set up the legal framework for the US to supply billions of dollars in weapons to other countries—so they don’t, as a body, exercise significant oversight of those arms transfers.

DS: Do we know how many times Israel has gone through this process since October? And what is, roughly, the total timeline from request to delivery?

SH: My understanding is that there have been over a hundred transfers since October 7, but most of these, if required, had Congressional notifications provided either prior to October 7 (meaning the procurement process took a long time), or they were transfers that didn’t cross the threshold to require congressional notification, or, as we know for two FMS cases, they received an emergency waiver.

The timeline question is tricky—there’s no set timeline for FMS cases. It depends on demand, production, and bureaucracy. For example, the production of ammunition has ramped up, but the demand is so high, largely due to the war in Ukraine, that it’s not clear that increased production means ammunition is getting especially quickly to any one country through FMS.

There are bureaucratic processes that can prioritize cases or countries. A presidential administration could require bureaucrats to hurry up on a certain country if there’s paperwork that needs to be moved. This is possibly what the government means when they say they’re trying to expedite transfers to Israel—it’s getting through that lengthy process to get the approvals completed.

The President, if he really wants to expedite the transfer of defense articles, can use the Presidential Drawdown Authority, which allows him to reach directly into Department of Defense stockpiles and transfer that equipment. This minimizes the length of time that a country has to wait for the equipment (because it does not have to go through the procurement process), which is what the Executive has mostly done with Ukraine. It’s a broad authority that allows the President to draw on Defense Department stocks anywhere in the world. The Presidential Drawdown Authority is separate from an FMS or DCS case.

DS: Is that authority also different from the war reserves stockpile, which you’ve written about?

SH: Yes. While the Drawdown Authority is a broad authority that allows the President to draw on Defense Department stocks anywhere in the world, the war reserve stockpile is set up through an authority provided to the DoD to be able to stock its weapons in another country for use in times of emergency.

The War Reserves Stockpile in Israel is a DoD stockpile that dates back to the 1980s. It’s physically located in Israel, and the goods that are stored there are available for use by the DoD or transfer to another country. It’s intended for times of war or emergency, but there’s no specific legal requirements on its use. Originally, overseas DoD stockpiles were only allowed in NATO countries, but Congress later expanded the law to include major “non-NATO allies” (a statutory term that confers certain benefits), which includes Israel. 

The stockpile in Israel has been used to transfer shells to Ukraine, and we know of instances in the past where it’s been used by Israel—notably in the 2006 Lebanon war and the 2014 Gaza war—but there’s no public reporting that they’ve done so since October 7. That’s partly because those transfers, and the implementation policy that facilitates them, are in general quite opaque. (In the 2014 case, for example, the White House was unaware of the transfer until after it happened, despite it being downstream of a $3 million foreign military sale from the US to Israel.) It holds an estimated $4.4 billion value of military equipment, but there is no robust reporting requirement on these stockpiles. In the Ukraine case, there is some evidence that suggests transfer was completed via a request from the US government with final approval coming from the prime minister of Israel—suggesting a significant degree of Israeli control over the stockpile.

Civil society groups have asked the Biden administration to be more transparent about when it transfers arms, what arms it’s transferring, and what legal authority it’s using, like it does with Ukraine via press releases from the State Department and DoD detailing what’s being sent, how much, and under what authority. Administration officials I and others have spoken with decline extending this practice to Israel. So we don’t know if they’ve used the war reserve stockpile post-October 7, 2023. If a true emergency existed, the president could use the drawdown authority to quickly transfer Defense Department stocks to Israel. 

But the Defense Department has been concerned about the depletion of its own stocks because of the war in Ukraine and because Congress took so long to provide more money for restocking. Congress finally did so in the significant appropriations bill that I mentioned earlier for Israel, Taiwan, and Ukraine.

DS: So you mentioned that there’s been no congressional nonapproval of arms transfers to Israel since October.

SH: No successful stoppage by Congress of an arms transfer ever.

DS: Does that mean that Israel is getting all of the specific quantities that it is asking for?

SH: No. It’s my understanding, based on trying to read into what the administration has said, particularly a statement by a general back in March that Israel isn’t getting everything they ask for, that the Biden Administration is not necessarily approving every single foreign military sale request. That is their prerogative. At the same time, they’re definitely not advertising any limitations, or the reasons for those limitations, with the single exception of the 2,000 pound bombs that the President put a pause on—which is of course a drop in the bucket compared to the sheer quantity of defense articles that continue to be sent to Israel.

TIM BARKER: You’ve talked about the lack of transparency and the various reporting requirements. What is the basic law governing transparency about the arms transfer process?

SH: It depends on the authority. For foreign military sales, DSCA posts on the website when a congressional notification has been issued for a major arms sale, but we don’t know anything about below-threshold transfers because there is no transparency required. And I think even if DSCA didn’t post the notifications on their website, we might still know about them because members of Congress could let the public know or journalists know about those notifications.

But, again, those notifications are only for major transfers. It’s possible that there could be an effort to just send a lot of below-threshold defense articles and defense services to another country in order to evade the kind of transparency that comes with congressional notifications. There are human rights groups, civilian protection groups, and groups that promote arms control who advocate for increased transparency in this process. 

Transparency is specifically dependent on the policy of the executive branch–it is by no means bipartisan. In regards to Ukraine, the Biden administration has demonstrated a well coordinated attempt, both internally in the executive branch and with partners and allies in Europe, to make this process of supporting Ukraine as clean, above board, and transparent as possible. That is unique to this administration. That said, they have chosen not to do that with Israel despite its status as a top recipient of US arms.

Leaving aside the question of whether they should be sending weapons at all, the executive branch should have the same approach it has with Ukraine with every partner and ally around the world.

TB: It’s striking how much basic information about arms transfers is only in the public record because of leaks of one kind or another.

SH: Yeah. The number I cited earlier—that there’ve been hundreds of transfers since October—came from a leak. That’s not something that the executive branch came out first to reveal.

TB: I want to ask about the arms pause of especially large bombs. What happens when an administration wants to slow-walk arms transfers or use this process as a form of putting pressure on the partner?

SH: As far as we know, that pause on 2,000 pound bombs is the only time in the war that the Biden Administration has publicly used its considerable leverage. After the World Central Kitchen strike in April, the President responded by making a private phone call to Netanyahu, during which Biden reportedly did not say his policy was changing, but did threaten to change it. After that call, it seemed like there was some kind of quick action taken by the Israeli government to open up some humanitarian access points, even if it was for show, because the White House seemed to indicate it was not going to put up with the killing of international citizens in a humanitarian organization.

The Biden Administration had already tolerated tens of thousands of Palestinians dying, but this was where Israel crossed a line. This underscored an obvious fact, which is that when you use your leverage you can change the trajectory of a conflict. This President has refused to do much more than that because he feels his administration’s approach to Israel is principled.

The arms pause reflected some discomfort on the part of the administration with dropping 2,000 pound bombs in places where there were a lot of people. That pause is clearly not as far as they ought to go—rather, it looked more like an attempt to save face, as they have stuck to a dead-end policy. The pause has not done anything to stop the bloodshed in Palestine; the phone call after the WCK strike seemed to be a more effective use of leverage.

DS: What is the extent of the prerogative of the executive here? I’m presuming that these sales can happen because there’s been an appropriation made by Congress that would cover them. Is that correct?

SH: The sale of arms can either happen with money the US has given another country—usually foreign military financing, or FMF, as I described earlier—or with money the foreign country has through taxpayer dollars or other means of income. Israel typically uses their FMF, which is $3.3 billion a fiscal year. That money is transferred to Israel in the first month of each fiscal year and sits in an interest-bearing account. Israel has used that interest to pay down debts to the US, but it cannot use the interest to purchase defense articles.

DS: And this account is for the purchase of American weapons, so to what extent does the prerogative of the executive extend over that? Can the President simply impose an arms embargo at that intervention point, and prevent sales until some condition is met?

SH: So I think the President’s lawyers would say yes, or they might say, it’s complicated, but here’s a way in which you can argue that you have this authority under the constitution. And I think members of Congress would push back against that and say, no, we hold the purse, we decide when countries receive and can spend US dollars.

That question has not been litigated or answered in the courts. This question comes up a lot in discussions with lawyers who think about the extent to which the president does have the authority to simply not allow the spending of money that Congress has authorized and appropriated. This sort of happened with Ukraine and the Trump administration, though it was a self-interested quid pro quo as opposed to an attempt at foreign policy-making. Congress authorized and appropriated security assistance for Ukraine if Ukraine met certain milestones. The executive branch eventually determined Ukraine met those milestones and that they should get the assistance.

But then-President Trump dangled that security assistance as a bribe to solicit information that might hurt his presidential opponent, then-former Vice President Biden. That’s one recent case of the President withholding congressionally approved money, although that was in the context of soliciting foreign interference in a domestic election. But no court has determined the specific context in which the President is constitutionally authorized to withhold funds that Congress has appropriated for security assistance.

DS: So while there’s an open legal question about the extent of presidential control here, there’s enough authority over this process that Biden was able to successfully change Israeli policy by making a phone call threatening to use this authority.

SH: Well I think that there were some proposals by Republicans, even after the WCK phone call, to basically say, in statute, that the president can’t have that authority. And I think there’s disagreement on the Hill about where the wiggle room lies within executive branch authority to hold one shipment, two shipments, three, all the way up to all transfers. Some of the disagreement is about legal authority, and some is about the nature of various conflicts—such as instances where the transfer of weapons may not be in the national security interest or where the US might be in violation of its international or domestic legal obligations by transferring such articles.

DS: On that topic, can you tell us about the Leahy Law, and the provision of the Foreign Assistance Act that regulates countries that are restricting the flow of humanitarian aid?

SH: Congress already has a legal framework that it has established through statutes to rein in transfers when the executive branch knows of violations of international law. There’s a handful of statutes related to prohibiting arms transfers or the provision of security assistance broadly to countries found violating human rights or the law of war. The main statutes related to human rights are the Leahy laws and 502B of the Foreign Assistance Act, while 620I of the Foreign Assistance Act relates to the provision of humanitarian aid.

We can just start with the Leahy laws. There are two of them. There is a Defense Department Leahy Law and a State Department Leahy Law. Both of these laws apply to expending US money on security assistance to units of foreign security forces. These laws are very narrow, and only apply to a unit of a foreign security force—not the entire force or entire country. They are triggered when the US government—either the Secretary of State or Secretary of Defense—has credible information that the unit of a foreign security force (this does not include non-state forces, only foreign state forces) committed a gross violation of human rights. If such credible information is available, that unit cannot receive any more granted US security assistance. However, both of the laws have an exception to this prohibition. The State Department exception requires that the unit perpetrators of the gross violation of human rights have to be remediated, which means they have to be taken to court and prosecuted and sentenced. The DOD exception is more watered down than that, but for consistency, the departments have agreed, under a policy memo, to do what’s called a remediation process at the state department standard (i.e., the perpetrators must be prosecuted and sentenced for the exception to apply). Those are the Leahy laws.

Meanwhile, 502B of the Foreign Assistance Act cuts security assistance to an entire country if there is a consistent pattern of gross violations of human rights. 502B has been applied in the past, but its application is not public because there’s no reporting requirement to Congress and no transparency requirement to announce its application. The oversight provision in 502B allows for the Senate or House to ask for a report from the State Department within thirty days on the human rights practices of a given country. Senator Bernie Sanders did attempt this last December—to force the production of a report and a debate in the Congress—but it unfortunately failed to pass. 

And then there’s 620I of the Foreign Assistance Act, which does not apply to human rights like the Leahy Laws and 502B, but does apply when a government of a foreign country is directly or indirectly prohibiting or otherwise restricting humanitarian assistance provided by the US. In the case of Israel, we saw that immediately. The Israeli government announced and executed a blockade very quickly after October 7. That persistent blockade is why there have been reports of famine there now: people are starving because of the Israeli blockade on humanitarian assistance.

Even US officials were frustrated by the fact that high level officials in the Israeli government weren’t allowing a shipment of flour and other dry goods to reach Gaza from Turkey. This was a very public case, and still the executive branch was not cutting assistance, even though 620I prohibits assistance under the Foreign Assistance Act and Arms Export Control Act to the whole country. There is even an exception in the law if the President provides a description to Congress of why they’re applying the exception for national security reasons, yet the Biden administration wouldn’t acknowledge any violation of 620I by Israel, so never applied the exception.

DS: The prevention of aid delivery is a very concrete, very unambiguous violation of human rights. There’s been a lot of documentation of Israeli practices that are arbitrary, which I think is the nicest way to say it, and in effect are a total limitation on the quantity of assistance getting in. I wanted to ask you about the report that the State Department issued reviewing Israeli practices in the war. I found it pretty notable that in the report, they said that there’s reason to think that Israel is violating international humanitarian law, or violating the principle of distinction with its bombing campaigns. But it basically gave approval to Israel’s practices around restricting aid. Why do you think they took that line, in light of all of the evidence?

SH: There are a few things I’d like to say here. When the blockade happened in October, I think 620I—the law that addressed the restriction of US aid—actually caught the executive branch off-guard. That law is pretty obscure—prior to last October, it was rarely applied or discussed. Typically, when the US government is trying to transport humanitarian aid to other countries, it gets in, and the challenges mainly involve dispersing aid within the active conflict areas. Those logistics are really difficult, and the US often hires local implementers to get aid out to people in those areas. But in general countries aren’t just implementing blockades on US humanitarian assistance or UN aid. That assistance often gets into places where logistics are hard and there are serious security concerns, like in Somalia. So the question about 620I, regarding Israel’s full blockade on Gaza, seemed to catch lawyers and policymakers off guard. It took pressure from the civil society groups that flagged the law for Congress to start asking questions. Public attention to that law only started to pick up in early 2024. 

Months later, in March, I talked with executive branch officials, and they said they were still discussing the legal interpretation of the statute. The central, lawyerly question they were assessing was: What is US humanitarian assistance? Are US contributions to the UN that are then provided, via the UN, to Palestinians in Gaza equivalent to direct assistance from the US? This is indicative of a lawyerly approach; executive branch lawyers are typically trying to read into the language of statutes to give as much flexibility to the executive branch as possible. 

Based on separate conversations, a second question that I know was being asked within the executive branch in late March was: what does “prohibiting or otherwise restricting” mean in the law? US officials told Congress that they were leaning toward an interpretation where otherwise restricted also meant prohibited—in other words, to read the language more narrowly such that 620I would only apply in the case of an all-out prohibition.

Let’s look back at the timeline of events related to 620I. In December, Senator Van Hollen had drafted legislation to address application of 620I to Israel, though the language in the statute was applicable world-wide. Then in February, the President issued National Security Memo 20 (NSM 20), which was based on Van Hollen’s draft legislation. In my opinion, this was the Biden administration’s attempt to appease critical Democratic lawmakers who were trying to hold the executive branch accountable for the laws it seemed to be flouting. When the memo was issued, the President’s press secretary said it created no new standards for the executive branch.

There’s a provision in NSM 20 that requires written, credible assurances of compliance with international law and ensured access for humanitarian aid from foreign countries receiving US defense articles. NSM 20 also requires the executive branch to report to Congress on whether countries are complying with 620I. This is not a requirement in 620I itself, it’s a requirement in the President’s own memo issued. This was good news because it required the lawyers to advise on the law and for the policymakers in the State Department to decide whether Israel is in compliance, which meant a lot of deliberating about what constitutes US assistance, and what is “prohibited” versus “otherwise restricted.” It’s also possible the lawyers ultimately applied an understanding that any prohibition or restriction would have to be arbitrary in order to constitute a violation of 620I. They might have used arbitrariness—a standard in international law—as a way to shape the interpretation of domestic law. I don’t know for sure. My point is that I think that there are a lot of ways the executive branch was working through the interpretation of 620I, all the way up until May when they had to give the report you mentioned to Congress.

And by the time they provided that report, they had supposedly gotten Netanyahu to ease up a little bit on restrictions to humanitarian access. This is likely why they could then feel comfortable in determining that 620I wasn’t applicable, because Israel wasn’t engaged in an all out prohibition or an arbitrary prohibition of US humanitarian aid—since there was some assistance getting in, any assistance still being prohibited could arguably be considered non-arbitrary for reasons like security. Of course we know there have been countless reports of things arbitrarily not being allowed into Gaza, but Israel argues it’s for national security reasons.

I think this all boils down to a story of just how creative executive branch lawyers are compelled to be in order to give as much flexibility as possible to the President—especially when the goal is to not cut assistance to Israel.

DS: I want to zoom out a bit, but still ask a legal question. One striking aspect of the US government’s response to this war has been its stated attitude towards bodies of international law. I know that the United States has long had a contentious relationship with a lot of the formal sources of international law and tribunals, but after the Security Council passed the ceasefire resolution in March with the US abstaining, some State Department spokesman got behind the lectern and basically implied that the Security Council resolution was non-binding. Given your experience in government, were you shocked by that?

SH: Because of everything that had happened up until that point, I was not surprised. I think the US stance mattered primarily because it continued to undermine the posturing of the Biden administration vis-a-vis the rules-based order. In abstaining from a UN Security Council resolution and then subsequently saying it’s non-binding, when many others consider it to be binding, the US continues to affirm the narrative that it is hypocritically flouting international law with respect to Israel, and will continue to do so. Obviously, as a legal matter, the State Department advised them that they could reasonably say that the resolution was not binding, but I don’t think it matters whether an international legal scholar would say that’s correct, it’s still detrimental to other US policies and objectives of advancing adherence to international law.

DS: It makes sense that there’s a plausible argument to make and then the lawyers make the argument. But do you think that similar discussions are happening around, for example, the ICJ preliminary measures ordered in the genocide case, which is unambiguously a declaration of international law? I’m curious if you have a sense of how orders such as those are received by the government, and how they’re counseled on their obligations with respect to orders from the ICJ.

SH: I don’t think the ICJ opinions, including the July advisory opinion on Israel’s occupation, were welcomed by this administration, mostly because of the self-imposed political constraints on how the US approaches its relationship with Israel. The ICJ opinions, as well as the ICC prosecutor’s application for warrants to arrest senior Israeli officials, does create real legal obstacles for executive lawyers that they have to work through in a serious way, because these issues cannot just be dismissed. While another country might straightforwardly ignore whatever the ICJ or the ICC says, the State Department and Defense Department lawyers will grapple with the rulings and warrant requests, work through them, and come up with ways in which to advise the President on how the US needs to adhere to its own international obligations. 

This is why I was really frustrated by NSM 20 when it was issued in February. I saw it as an attempt to appease the Democratic members of Congress who were criticizing the executive branch. But what it meant for lawyers and policymakers within the bureaucracy was a lot of churn because they take these things seriously. It would never result in stopping arms transfers to Israel, which as we know is where the United States’ leverage lies in ending this carnage.

Like NSM 20, it will take a lot of time for State Department lawyers and policymakers to handle the repercussions of the ICJ cases and ICC arrest warrant application. But clearly, at least as of now, they’re not taking any position that entails the US stopping the transfer of arms. So read into that what you will. It seems pretty clear that US lawyers don’t agree with what the ICJ has said or what the ICC is doing. If they did, they would have to advise their clients to stop transferring weapons to Israel.