U.S. Restrictions on Military Aid

Because Israel misuses U.S. weapons to commit human rights abuses of Palestinians living under Israeli military occupation in the West Bank, East Jerusalem and Gaza Strip, including, but not limited to:  the injuring and killing of civilians, the destruction of Palestinian civilian infrastructure, the severe restrictions on Palestinians' freedom of movement, and the expropriation of Palestinian land and resources for Israeli settlements, it is pertinent to investigate whether Israel is violating U.S. laws aimed at ensuring that U.S. military aid and weapons are appropriately and legally used.  

There are two primary laws that place conditions and restrictions on how foreign governments can use U.S. foreign assistance: the Foreign Assistance Act and the Arms Export Control Act.

The Foreign Assistance Act (FAA) (P.L. 87-195), which regulates all U.S. bilateral economic and military aid programs, declares that "The United States shall, in accordance with its international obligations as set forth in the Charter of the United Nations and in keeping with the constitutional heritage and traditions of the United States, promote and encourage increased respect for human rights and fundamental freedoms throughout the world without distinction as to race, sex, language, or religion.  Accordingly, a principal goal of the foreign policy of the United States shall be to promote the increased observance of internationally recognized human rights by all countries."  In furtherance of this goal, "no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights."  To promote human rights as a cornerstone of U.S. foreign policy, the law directs the president "to formulate and conduct international security assistance programs of the United States in a manner which will promote and advance human rights and avoid identification of the United States, through such programs, with governments which deny to their people internationally recognized human rights and fundamental freedoms, in violation of international law or in contravention of the policy of the United States". ^{[46]22 U.S.C. ¤2304, available at: http://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE-2010-title22-chap32.htm (Click red citation number to open this link.)}

In addition, the Foreign Assistance Act more narrowly determines that "No assistance shall be furnished under this chapter or the Arms Export Control Act [22 U.S.C. 2751 et seq.] to any unit of the security forces of a foreign country if the Secretary of State has credible evidence that such unit has committed gross violations of human rights." ^{[47]22 U.S.C. ¤2378(d), available at: http://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE-2010-title22-chap32.htm (Click red citation number to open this link.)}

The Arms Export Control Act (AECA) (P.L. 90-629), which conditions and restricts the sale and leasing of U.S. defense articles and services, limits the use of U.S. weapons "solely for internal security, for legitimate self-defense, for preventing or hindering the proliferation of weapons of mass destruction and of the means of delivering such weapons, to permit the recipient country to participate in regional or collective arrangements or measures consistent with the Charter of the United Nations."  The law stipulates that no credits, guarantees, sales, or deliveries of weapons can be extended to a foreign country if it is "in substantial violation (either in terms of quantities or in terms of the gravity of the consequences regardless of the quantities involved)" of the narrowly limited uses of weapons cited above. ^{[48]22 U.S.C. ¤2754, ¤2753, available at: http://www.gpo.gov/fdsys/pkg/USCODE-2010-title22/html/USCODE-2010-title22-chap39.htm (Click red citation number to open this link.)}

Given that U.S. military aid to Israel, as documented in the previous section, does not further the advancement of human rights, but rather directly contributes to Israel's systematic human rights violations against Palestinians, and that these human rights violations cannot constitute "legitimate self-defense" and take place not in the context of "internal security" but in the framework of furthering a foreign military occupation, strong prima facie evidence exists to find that Israel is in violation of the FAA and AECA.  Both Congress and the President must utilize the investigative and reporting mechanisms found in these laws and hold Israel accountable for any and all violations of these laws as required.  

Prior U.S. Sanctions against Countries Violating these Laws

To exempt Israel's use of U.S. military aid and weapons from scrutiny would be to deviate from the rule of law and to hold Israel to a lower standard of account than the United States does for other countries.  As the supposed democratic ally of the United States in the Middle East, to do so for Israel is unacceptable.  Indeed, on many occasions in past decades, the United States has held foreign countries, many of them considered close U.S. allies, accountable for their violations of these laws, including in the following cases.

Turkey:  In July 1974, Turkey used U.S. equipment during its military intervention in Cyprus.  President Richard Nixon considered this an inappropriate use of U.S. military assistance under the terms of the AECA and independently suspended the issuance of new Foreign Military Sales credits and guarantees for Turkey from late July until October 17, 1974.  On that day, Congress imposed an embargo on military sales, credits, assistance and deliveries to Turkey and on December 10, 1974, an arms embargo against Turkey went into effect.  The embargo was partially lifted by President Gerald Ford in 1975 and fully lifted by President Jimmy Carter on September 26, 1978. ^{[49]Richard F. Grimmett, Specialist in National Defense, "U.S. Defense Articles and Services Supplied to Foreign Recipients: Restrictions on Their Use," Congressional Research Service, March 14, 2005, pp. 6-7, available at: http://www.fas.org/sgp/crs/natsec/RL30982.pdf. (Click red citation number to open this link.)}

Indonesia:  In response to Indonesia's military intervention in East Timor on December 7, 1975, the Ford Administration initiated a policy review and placed a hold on new contracts and orders that were part of the U.S. military assistance program to Indonesia.  The policy review was completed in May 1976 and military assistance and sales resumed in July because no formal finding was made of substantial violations of U.S.-Indonesian agreements regarding the use of U.S. military equipment. ^{[50]Ibid, p. 6.}

Guatemala:  In 1977 the Carter Administration suspended direct military aid to Guatemala after determining the government was a gross and consistent human rights violator.  Aid was not resumed until 1983 by President Ronald Reagan who claimed the human rights situation was improving.  In 1990 President George H.W. Bush again cut military aid after a U.S. citizen was murdered by Guatemalan soldiers. ^{[51]Clair Apodaca, Understanding U.S. Human Rights Policy: A Paradoxical Legacy, Routledge, 2006, pp. 99-100.}

El Salvador:  In 1981 Congress passed the International Security and Development Act, which required the president to certify every six months that El Salvador was making a concerted effort to ensure progress in improving human rights conditions if it were to be eligible for U.S. assistance.  This law was enacted in response to a hearing of the House Appropriations Subcommittee on Foreign Operations, which found that Salvadoran death squads, responsible for the murder of thousands, were made up of members of the security forces and that high-ranking members of the military actually planned the murders.  By threatening to cut off aid, the United States did succeed in forcing the Salvadoran military to reassign the officers who were known to be leaders of the death squads.  In 1983 President Reagan submitted a document to Congress outlining that El Salvador no longer demonstrated a consistent pattern of human rights abuses and Congress agreed to continue providing aid. ^{[52]Ibid, pp. 18-19, 101-103.}

Argentina:  On April 30, 1982 the Reagan Administration reported to Congress that Argentina may have substantially violated its agreements with the United States by using U.S.-supplied military equipment in its military operations in the Falkland Islands on April 2.  The United States suspended all deliveries of defense articles and services to Argentina until September 24, 1982. ^{[53]Grimmett, ibid, p. 5.}

Nicaragua:  Between December 1982 and December 1985, Congress enacted several pieces of legislation reducing and then prohibiting U.S. military or security assistance for the Contra rebels, an armed force of Nicaraguan exiles intent on overthrowing the Sandinista government.  The rebels had been accused of kidnapping, torturing and killing civilians.  The Boland Amendment, first passed by Congress in 1982, only outlawed U.S. assistance to the Contras for the purpose of overthrowing the Nicaraguan government while allowing limited humanitarian assistance.  In October 1984 it was amended to forbid action supporting the Contras by the Department of Defense, the Central Intelligence Agency and all U.S. government agencies.  This ban lasted two years before Congress approved $100 million of military and humanitarian aid to the Contras. ^{[54]Apodaca, ibid, pp. 88-90, 103-104.}

Turkey:  Turkey was again a target of U.S. sanctions in 1999 when the Leahy Amendment, subsequently enacted into permanent law as part of the FAA and referenced above, was invoked to substantially slow down the sale of U.S. military equipment, specifically armored personnel vehicles.  In order to win Congressional approval of deliveries, President Bill Clinton had to stipulate that the vehicles would not be sent to Turkish provinces that were associated with Turkey's human rights violations against the Kurds. ^{[55]Apodaca, ibid, pp. 161-162.}

Zimbabwe:  In 2002 President George W. Bush imposed an embargo on arms sales to Zimbabwe in response to the government's subversion of the democratic process through a flawed presidential election, a campaign of violence and intimidation against its political opposition and other serious human rights abuses. ^{[56]Jan Grebe, "And They are Still Targeting: Assessing the Effectiveness of Targeted Sanctions Against Zimbabwe," Africa Spectrum, volume 45, number 1, January 2010, pp. 16-17, available at: http://hup.sub.uni-hamburg.de/giga/afsp/article/viewFile/246/246 (Click red citation number to open this link.)}

Colombia:  In response to thousands of unsolved cases of extrajudicial killings by Colombian armed forces, which took place between 1985 and 2009, Congress since 2002 has required that the Secretary of State certify that the Colombian military and police forces are severing their links to paramilitaries, investigating complaints of human rights abuses and prosecuting those who have had credible charges made against them.  Funding to the Colombian military is contingent on these certifications, which have been approved every year. ^{[57]June S. Beittel, Analyst in Latin American Affairs, "Colombia: Issues for Congress," Congressional Research Service, March 18, 2011, p. 36, available at: http://www.fas.org/sgp/crs/row/RL32250.pdf (Click red citation number to open this link.)}

Philippines:  Since 2008 the United States has placed human rights conditions upon its military aid program to the Philippines.  In FY2008, $2 million was withheld pending the satisfaction of human rights conditions.  The penalty was raised to $3 million the following year.  The Consolidated Appropriations Act for FY2010 provided $32 million in military aid for the Philippines, of which $3 million was to be held back until the Secretary of State reported in writing to the Appropriations Committees that the government of the Philippines was continuing to take effective steps to eliminate extrajudicial executions and was punishing military personnel who have violated human rights. ^{[58]Thomas Lum, Specialist in Asian Affairs, "The Republic of the Philippines and U.S. Interests," Congressional Research Service, January 3, 2011, pp. 8-9, available at: http://www.fas.org/sgp/crs/row/RL33233.pdf (Click red citation number to open this link.)}

Pakistan:  In October 2010, the Obama Administration suspended U.S. military aid to approximately half a dozen Pakistani army units that were believed to have committed human rights abuses, including the killing of unarmed prisoners and civilians during recent military offensives. ^{[59]Eric Schmitt and David E. Sanger, "Pakistani Troops Linked to Abuses Will Lose Aid," New York Times, October 21, 2010, available at: http://www.nytimes.com/2010/10/22/world/asia/22policy.html (Click red citation number to open this link.)}  This was just the latest example of U.S. aid to Pakistan being cut.  In 1979 the Carter Administration cut aid in response to Pakistan constructing a uranium enrichment facility.  The Soviet invasion of Afghanistan led President Reagan to negotiate an economic and military aid package with Pakistan in September 1981, but four years later, Section 620E(e)—the Pressler Amendment—was added to the FAA requiring the president to certify to Congress that Pakistan does not possess a nuclear explosive device during the fiscal year for which aid is to be provided.  Due to this restriction, President Bush suspended most economic and all military aid in October 1990. ^{[60]K. Alan Kronstadt, "Pakistan-U.S. Relations," Congressional Research Service, March 6, 2006, pp. 2-3, available at: http://www.fas.org/sgp/crs/row/IB94041.pdf (Click red citation number to open this link.)}

Bahrain:  On September 14, 2011, the Pentagon informed Congress that it intended to fulfill a planned sale of $53 million in weaponry to Bahrain.  The sale was to have included 44 armored Humvees and 300 missiles.  This alarmed many in Congress who were concerned with Bahrain's harsh treatment of pro-democracy protesters. According to human rights organizations, since February 2011, more than 40 people have been killed by security forces and another 1,600 people have been arrested.  The government has led a campaign of retribution against anyone participating in or supporting protests, firing about 2,500 employees and destroying 40 Shi'a mosques and religious sites.  Both the House and Senate introduced resolutions to prevent the U.S. government from going ahead with the weapons sale; however the Obama Administration is proceeding with the sale of spare parts and maintenance of equipment. ^{[61]Josh Rogin, "Obama Administration Using Loophole to Quietly Sells Arms Package to Bahrain," The Cable, January 27, 2012, available at: http://thecable.foreignpolicy.com/posts/2012/01/27/obama_administration_selling_new_arms_package_to_bahrain(Click red citation number to open this link.)}

Prior U.S. Conditioning, Withholding, and Sanctioning of Aid to Israel

As evidenced in the previous section, Congress and various Administrations have worked in a bipartisan fashion to sanction a broad array of countries that have misused U.S. weapons in violation of U.S. law, and to promote human rights as the objective of U.S. foreign policy and the basis upon which to determine eligibility for U.S. weapons.  Not only have Latin American, Asian, African and Middle Eastern countries faced these sanctions; Congress and previous Administrations have also conditioned, withheld, and sanctioned aid to Israel on several occasions.

In 1952 the United States and Israel signed a Mutual Defense Assistance Agreement, limiting the use of U.S. military equipment to defensive purposes.  In language mirroring the Arms Export Control Act, it states that "The Government of Israel assures the United States Government that such equipment, materials or services as may be acquired from the United States... are required for and will be used," inter alia, "solely to maintain its internal security" or "its legitimate self-defense," and "that it will not undertake any act of aggression against any other state." ^{[62]Text of agreement in author's files.}

In October 1953 President Dwight Eisenhower suspended economic aid to Israel as requested by the United Nations Truce Supervision Organization after Israel refused to stop work on its hydroelectric project on the upper Jordan River.  Aid was resumed only after Israel ended the water project. ^{[63]Steven Spiegel, The Other Arab-Israeli Conflict: Making America's Middle East Policy, from Truman to Reagan, University of Chicago Press, 1985, p. 63.}   In response to the joint Israeli-British-French October 1956 war against Egypt, the United States again suspended all governmental aid to Israel. ^{[64]Spiegel, ibid, p. 79.} On November 1, President Eisenhower explained that "We cannot—in the world any more than in our own nation—subscribe to one law for the weak, another law for the strong; one law for those opposing us, another for those allied with us.  There can only be one law—or there shall be no peace." ^{[65]David A. Nichols, Eisenhower 1956: The President's Year of Crisis—Suez and the Brink of War, Simon & Schuster, 2011, p. 226.}   Israel was warned on November 7 that if it did not withdraw from Egyptian territory, there would be a complete termination of U.S. governmental and private aid.  Israeli Prime Minister David Ben-Gurion announced the next day that Israel would withdraw.  Israel completed its withdrawal in March 1957. ^{[66]Spiegel, ibid, p. 77.}

Israel's intransigence in diplomatic negotiations after the 1973 war led President Gerald Ford to "reassess" U.S.-Israeli relations.  In March 1975, after Israel rejected a plan to partially withdraw from Egyptian territory it had occupied since the 1967 war, Ford sent the Israeli government a letter stating:  "I wish to express my profound disappointment over Israel's attitude in the course of negotiations... Failure of the negotiations will have a far-reaching impact on the region and on our relations.  I have given instructions for a reassessment of United States policy in the region, including our relations with Israel, with the aim of ensuring over-all American interests... are protected.  You will be notified of our decision." ^{[67]Spiegel, ibid, p. 293.}   The United States for six months refused to conclude a new arms agreement with Israel until it agreed to withdraw from parts of the Egyptian Sinai Peninsula.

On four different occasions between 1978 and 1982, the Secretary of State notified Congress that Israel "may" have violated the provisions of AECA.  In March 1978 Israel invaded Lebanon and used U.S.-made antipersonnel cluster bombs to kill civilians.  President Jimmy Carter instructed the State Department to prepare a UN Security Council resolution condemning Israel's actions and informed Israeli Prime Minister Menachem Begin that he was required by law to notify Congress that U.S. weapons were being used illegally, which could result in the end of military aid to Israel. ^{[68]Jimmy Carter, Palestine Peace Not Apartheid, Simon & Schuster, 2006, pp. 44-45.}   Israel's actions in Lebanon brought scrutiny from the Carter Administration again in 1979 but no action was taken to cut U.S. military aid because on both occasions Israel assured the State Department that it would not misuse U.S. cluster bombs again. ^{[69]Michael F. Brown, "Arms Export Control Act: Israeli Breaches and U.S. Indulgence Result in Palestinian and Lebanese Civilian Casualties," The Palestine Center, April 15, 2008, pp. 6-7, available at: http://www.thejerusalemfund.org/images/AECA_MichaelFBrown.pdf (Click red citation number to open this link.)}

President Ronald Reagan temporarily suspended the delivery of F-16 aircraft to Israel after it bombed the Iraqi nuclear reactor Osirak in 1981.  The United States also voted for UN Security Council Resolution 487 which condemned the attack. ^{[70]Spiegel, ibid, p. 409.}   On July 15, 1982, the Reagan Administration determined that Israel "may" have violated the Mutual Defense Assistance Agreement by reportedly using U.S.-supplied anti-personnel cluster munitions against civilian targets during its invasion of Lebanon.  In response to this finding, as well as Congressional hearings on Israel's war in Lebanon, the Reagan Administration prohibited the export of cluster bombs to Israel for six years.  The ban was lifted in 1988 only after Israel asserted that the cluster bombs would not be used against civilian targets, ^{[71]Grimmett, ibid, p. 5.} a pledge which Israel subsequently violated again during its 2006 war on Lebanon.

In 1991 Israeli Prime Minister Yitzhak Shamir requested $10 billion in U.S. loan guarantees to help absorb Jewish immigrants from the former Soviet Union.  President George H.W. Bush refused to fulfill this request due to Shamir's rejection of a U.S. stipulation that Israel freeze all settlement activity in the Occupied Palestinian Territories.  The loan guarantees were later approved in October 1992 after Yitzhak Rabin came into office and his coalition approved a partial settlement construction freeze. ^{[72]James A. Baker III with Thomas M. Defrank, The Politics of Diplomacy: Revolution, War and Peace, 1989-1992, G.P. Putnam's Sons, 1995, pp. 540-557.}   This loan guarantee package and its successor program enacted in 2003 (Emergency Wartime Supplemental Appropriations Act of 2003, P.L. 108-11) limit funds from the loan guarantees "only to support activities in the geographic areas which were subject to the administration of the Government of Israel before June 5, 1967."  Also, the amount of loan guarantees that could be issued "shall be reduced by an amount equal to the amount extended or estimated to have been extended by the Government of Israel... for activities which the President determines are inconsistent with the objectives and understandings reached between the United States and the Government of Israel regarding the implementation of the loan guarantee program," a provision which has been interpreted by the president as the amount of money Israel spends on settlements in the Occupied Palestinian Territories. ^{[73]Text of the law is available at: http://www.gpo.gov/fdsys/pkg/PLAW-108publ11/html/PLAW-108publ11.htm (Click red citation number to open this link.)}

In short, the United States has in the past sanctioned both Israel and other countries for violations of U.S. laws.  Yet, despite Israel's killing of at least 2,969 Palestinians who took no part in hostilities during the 2000s and its other systematic human rights abuses during this period, not once since 2000 has any Administration formally or publicly held Israel accountable for its misuse of U.S. weapons in violation of its own laws, as detailed above.  

On at least five occasions since 2000, Members of Congress have requested the Administration to investigate Israel's potential violations of U.S. laws and/or the Administration has considered reporting a violation, including the following instances:

• In June 2001, Rep. John Conyers wrote a letter to President George W. Bush expressing concern that Israel's use of U.S. weapons in extrajudicial assassinations, or "targeted killings," of Palestinians constituted a violation of the Arms Export Control Act.  According to the Jerusalem Post, on August 17, 2001, Secretary of State Colin Powell sent Rep. Conyers a letter in response, stating, in part, "Under the AECA, we are required before supplying defense articles to obtain the recipient's agreement that those defense articles will be used only for specified purposes, including internal security and legitimate self-defense.  Under section 3c, a report must be submitted to Congress if a substantial violation of such an agreement may have occurred."  Secretary Powell concluded:  "Based on our assessment of the totality of the underlying facts and circumstances, we believe that a report under section 3c of the AECA is not required." ^{[74]Janine Zacharia, "Powell: Israel use of U.S. Arms not Illegal," Jerusalem Post, September 9, 2001, archived at: http://www.highbeam.com/doc/1P1-46811445.html (Click red citation number to open this link.)}

• On July 23, 2002, Rep. Nick Rahall and Rep. John Dingell wrote a letter to President George W. Bush condemning in the "strongest possible terms" Israel's missile strike on an apartment building in Gaza City that killed at least 17 Palestinians and wounded 150.  These Members of Congress wrote to "request that the Administration examine whether the American-made and supplied military hardware employed in this attack was used in violation of the Arms Export Control Act, U.S. Public Law 90-829." ^{[75]The letter is in author's files.}

• On May 1, 2005, U.S. News and World Report reported that Undersecretary of State John Bolton "recalled" a "split memo" to Secretary of State Colin Powell in which officials of the Department of State outlined positions both for and against Israel's possible violations of the Arms Export Control Act in the same July 2002 missile strike on an apartment building in Gaza City. ^{[76]"White House Week: Foggy Bottom's Case of the Missing Memo," U.S. News and World Report, May 1, 2005, available at: http://www.usnews.com/usnews/news/articles/050509/9whitehouse.htm (Click red citation number to open this link.)}

• On January 30, 2007, the Washington Post reported that the Department of State preliminarily notified Congress that Israel may have violated the Arms Export Control Act through its use of cluster bombs during its 2006 war on Lebanon.  The report was reportedly sent to Sen. Joseph Biden and Rep. Nancy Pelosi.  Department of State spokesperson Sean McCormack stated that "There may likely could have been some violations" of the Arms Export Control Act but that the Department of State had not yet made a final determination. ^{[77]Glenn Kessler, "Israel May Have Misused Cluster Bombs, U.S. Says," Washington Post, January 30, 2007, available at: http://www.washingtonpost.com/wp-dyn/content/article/2007/01/29/AR2007012900510.html (Click red citation number to open this link.)}

• On January 5, 2009, during Israel's war on the Gaza Strip, or "Operation Cast Lead," Rep. Dennis Kucinich wrote a letter to Secretary of State Condoleezza Rice in which he stated that "I believe that with the current escalation of violence in Gaza, a legal threshold has been reached, warranting a Presidential examination and report to Congress.  I hereby request an examination of Israel's compliance with the provisions of the Arms Export Control Act of 1976 (AECA)." ^{[78]"Israel May Be in Violation of Arms Export Control Act," Press Release, January 6, 2009, available at: http://kucinich.house.gov/News/DocumentSingle.aspx?DocumentID=108151 (Click red citation number to open this link.)}

The US Campaign to End the Israeli Occupation submitted a Freedom of Information Act (FOIA) request to the Department of State on March 26, 2009, for documents pertaining to these cases and other potential cases of U.S. investigations into Israel's misuse of U.S. weapons since 2000.  At the writing of this paper, the organization has not received any documents as a result of this request.