Drafter of Leahy law says it was never applied to Israel

Following immense pressure from Israel and its most fervent supporters, the Biden administration announced recently that it will keep giving weapons to five Israeli units that had committed “gross violations of human rights,” including a notorious battalion whose soldiers killed an elderly Palestinian-American man in the West Bank in 2022.

The decision drew sharp backlash from legal analysts and former officials, who noted that the State Department’s own experts had found the units in violation of the “Leahy law,” a 1997 statute that is supposed to stop foreign militaries from using U.S. weapons in war crimes.

In a sense, the move was standard. Israel has long been able to dodge U.S. laws surrounding arms transfers, and it even gets a special process for Leahy vetting that leaves more room for political interference, according to a former State Department official.

Indeed, the Biden administration has shown little public interest in holding Israel accountable for alleged war crimes even as Israel begins its assault on Rafah, where more than 1 million Palestinians have sought shelter amid the war. While the White House has reportedly held up a pair of weapons transfers in recent days, it’s carefully avoided giving a reason for the move, leaving open the possibility that the delay was caused by logistical problems.

Tim Rieser brings a unique perspective to these issues. During a long tenure as an aide to former Sen. Patrick Leahy, Rieser drafted the law that Israeli units now stand accused of violating. Today, he’s pushing for real enforcement of U.S. policy on weapons transfers as a senior adviser to Sen. Peter Welch (D-Vt.).

In an email exchange, RS asked Rieser about whether the Leahy law has ever really been applied to Israel and why policymakers should care. The following conversation has been lightly edited for length and clarity.

RS: You played a major role in the drafting of the Leahy law. From what you understand, is the Biden administration applying the law to Israel as it was originally intended?

Rieser: No, and Sen. Leahy has said the same. In its long history, the Leahy law has never been applied to Israel. Yet the administration insists it’s being applied consistently worldwide. If that were true, there would have been any number of instances when the law was applied to the Israel Defense Forces (IDF).

A good example, and there are many, was the fatal shooting of journalist Shireen Abu Akleh, after which Secretary Blinken called for a credible, thorough investigation and that those responsible be held accountable. None of that happened, and no action was taken by the United States under the Leahy law. The reality is that the law is applied differently with respect to Israel in multiple ways, with the result that it has never been applied to deny U.S. assistance to any IDF unit. As to why, I think it is due to a lack of political will.

RS: Has the Biden administration followed the intended process for evaluating violations by Israel? Is Israel capable of holding its own units accountable for violations that may occur?

Rieser: Israel, like any country, can hold accountable members of its security forces who commit gross violations of human rights, which are crimes everywhere. It’s a question of political will and, in some countries, judicial capacity. In four IDF cases, the State Department determined that the individuals responsible for gross violations were appropriately punished. But two of those cases involved fatal shootings of unarmed Palestinians for which the shooters served nine and zero months in prison, respectively.

In the fifth case, the Secretary determined the unit committed a gross violation after a Palestinian-American was killed more than two years ago. But instead of applying the Leahy law, the State Department has been discussing remediation of the unit with the Israeli government. Remediation is a key goal of the Leahy law, but U.S. assistance to that unit should have been cut off a long time ago.

RS: Why should policymakers care about applying the law uniformly, particularly when it comes to close U.S. partners?

Rieser: The law doesn’t apply one standard to some countries and a different standard to others. No country is above the law. If a government doesn’t want to comply with the law, they shouldn’t receive U.S. assistance. But beyond that, the U.S. wants partners that respect human rights and abide by the laws of war, not partners that commit crimes with impunity.

RS: What pathways are there to legislate meaningful conditions on military aid to Israel?

Rieser: There are no pathways currently for legislative conditions on U.S. assistance for Israel. That opportunity came and went with the recent passage of the supplemental appropriations bill. The next opportunity would be in the context of the fiscal year 2025 appropriations bill, which will be marked up in the appropriations committee in June or July.

RS: In what ways are Sen. Welch and his like-minded colleagues putting pressure on the administration to change its tack on weapons transfers to Israel? Have you seen any shifts in the administration's thinking on this issue?

Rieser: Sen. Welch has spoken repeatedly about the need for Congress to stop supporting a war strategy that he believes is fundamentally flawed. He was one of only three members to vote in the Senate against the supplemental appropriations bill, specifically because of the additional funding for offensive weapons for Israel.

We have not seen any noticeable shift in the administration’s policy, at least not to the extent of withholding or conditioning U.S. assistance to the IDF, although it’s also clear that the administration is trying hard to reduce civilian casualties and address the humanitarian crisis in Gaza.

RS: The Biden administration will have to report to Congress Wednesday about whether Israel has abided by U.S. and international law in its war in Gaza. Do you expect that the report will acknowledge widespread allegations of illegal Israeli conduct? What message will it send if the report fails to acknowledge these allegations?

Rieser: I doubt it will go that far. If the report accepts assurances of the Israeli government that it is abiding by international law and not impeding access to humanitarian aid, the message it will send is that, as a practical matter, the National Security Memorandum didn’t mean much, and the administration is still unwilling to hold Israel to a higher standard.