Biden has the power to limit any foreign arms deliveries, even ones previously approved by Congress. Far from cutting off Israel, however, he is pushing a request he made shortly after the October 7 attacks for $US14 billion in additional arms aid to the country and US military operations in the Middle East. The money has been stalled in Congress amid disputes over Ukraine aid and US border security and faces growing Democratic concern.
Because of a legal loophole, the State Department does not have to tell Congress and the public about some new arms orders placed by Israel since October 7 since they fall below a certain dollar value. Congressional officials have criticised the secrecy, which stands in contrast to the Biden administration’s public fanfare around arms deliveries to Ukraine.
Since the Hamas attacks, State Department officials have continued to authorise arms shipments to Israel that are tranches of orders, or what officials call “cases”, approved earlier by the department and by Congress – often years ago, and often for delivery in batches over a long period. Officials describe this step as pro forma. The authorisations have occurred almost daily in recent weeks and are in line with Biden’s policy of giving full support to Israel.
Biden has hinted about a possible shift. In a phone call with Israeli Prime Minister Benjamin Netanyahu on Thursday, he warned that US policy could change if Israel did not take more action to protect civilians and aid workers in Gaza, according to a White House summary of the conversation.
Israel regularly receives arms from the US Defence Department, as well as directly from American weapons makers. The largest arms orders are often filled over years in smaller groups of specific items. For such cases, arms buyers such as Israel come to the US government saying they are ready to pay for part of an order.
When the Defence Department is supplying the arms – which includes the most expensive weapons systems – the State Department then tells the Pentagon to issue a letter of acceptance to the buyer. That authorisation is often a pro forma step, and a buyer signing it means there is now a legal contract to fill that part of the larger order.
The State Department’s Bureau of Political-Military Affairs, which manages foreign defence relationships and arms transfers, typically acts within two days of hearing about a buyer’s fulfilment request to tell the Defence Department to issue the letter. If defence officials decide to fill the case by placing an order with a US weapons maker, the assembly and shipment would normally take years.
The US has been supplying weapons to Israel for decades.Credit: Bloomberg
For Israel’s immediate needs since October 7, defence officials have drawn from US military stockpiles, including one in Israel.
Since October 7, Israel has placed new orders. The State Department only needs to notify Congress when a price tag is above a certain threshold. That amount varies by country and the type of military aid. If Israel orders a major weapons system, the department only tells Congress if the tranche is valued at more than $US25 million.
Congressional officials are pushing the State Department to give them more information on orders that fall below the price tag threshold.
At least three of the new Israeli orders have crossed the threshold required for congressional review – and Secretary of State Antony Blinken bypassed that twice. In December, Blinken invoked a rare emergency authority to avoid legislative review and push through two of those orders worth $US253 million in total, for tank ammunition and for artillery shells. The Pentagon then drew from US stockpiles to send those quickly to Israel.
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The State Department told Congress in January about a third one – a $US18 billion order of F-15 jets that Israel placed after October 7. The department is seeking approval from four lawmakers on two congressional committees with oversight of arms transfers. Two Republicans approved the order in January, a US official said, and two Democrats apparently have not so far.
The Biden administration is pressuring the Democratic lawmakers to approve the order, after which the State Department would officially notify it. The order is one of the biggest from Israel in years. The first jets would not be delivered until 2029 at the earliest, one official said.
And Israeli officials are expected to place an order for F-35 jets soon, US officials said.
If the administration tried to ram an order past informal congressional review, lawmakers could seek to block that through a super-majority joint resolution during the formal notification period. But even if such a resolution passed in both chambers, the president could veto it.
Martin Indyk, a special envoy for Israeli-Palestinian negotiations in the Obama administration, said “the problem with this American largesse is that it has bred a sense of entitlement among Israelis over the years”.
Israel’s dependence on the United States has grown “exponentially because its deterrent capability collapsed on October 7,” he said, noting that Israel would need the US military to help ward off major assaults by Hezbollah or Iran. The Biden administration needs to use that leverage to shape the Israeli government’s behaviour, he added.
Within the State Department, there has been some dissent about the arms transfers, reflected in three cables sent to Blinken last fall and in an internal exchange after a recent White House move.
Biden issued a national security memorandum in February requiring all recipients of US military aid to provide written promises that their forces abide by international law. The move was intended to defuse growing pressure in Congress.
Critics say the exercise adds little to existing US requirements that military aid recipients observe international and humanitarian law.
After Israel submitted its assurances last month, officials in the two State Department bureaus that focus on human rights and on refugees raised concerns with Blinken about Israel’s commitment, a US official said. But Blinken accepted Israel’s assurances.
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Speaking in general terms, Matthew Miller, the State Department spokesperson, said last month that when it comes to Israel, US officials “have had ongoing assessments about their compliance with international humanitarian law”.