January 29, 2024

Warren, McGovern Lead Bicameral Coalition Pressing Biden Administration for Bypassing Congress to Approve Arms Transfers to Israel

“It is essential for Congress to be able to conduct oversight of these arms transfers and determine whether they are consistent with humanitarian principles and U.S. law, and whether they advance or harm U.S. national security.”

Letter Text (PDF)

Washington, D.C.  – Today, U.S. Senator Elizabeth Warren (D-Mass.) and U.S. Representative Jim McGovern (D-Mass.) led a bicameral coalition of lawmakers in sending a letter to Secretary of State Antony J. Blinken, requesting additional information on the administration’s decision to circumvent congressional review of arms transfers to Israel and whether these deals sufficiently considered civilian harm risks. The letter comes after the Biden administration exercised emergency authorities twice to provide weapons to Israel without notifying Congress. 

“We shared the world’s horror at Hamas’s terrorist attacks on October 7, in which Hamas killed 1,200 Israelis and foreign nationals, committed gross violations of human rights including using sexual violence as a weapon of war, and took approximately 240 people hostage,” wrote the lawmakers. “However, we are also deeply disturbed that Israel’s response to this attack included indiscriminate bombing and has killed over 22,000 Palestinians, the majority of whom have been civilians, including thousands of children. It is essential for Congress to be able to conduct oversight of these arms transfers and determine whether they are consistent with humanitarian principles and U.S. law, and whether they advance or harm U.S. national security.”

The Arms Export Control Act (AECA) requires the State Department, on behalf of the president, to provide Congress advance notification of government-to-government foreign military sales of defense equipment. That notification is designed to allow Congress the opportunity to raise questions or objections before a sale is complete. However, the AECA allows the State Department to circumvent this notification requirement if the Secretary of State certifies that “an emergency exists” that requires providing weapons without notice. 

“It is highly unusual for the president to bypass congressional oversight through an emergency declaration. In fact, since the AECA was passed into law, an emergency declaration authority has only been used 18 times in nearly 50 years,” the lawmakers wrote.  

Additionally, the lawmakers expressed concern that these arm transfers violate U.S. policy and international law. Last year, the Biden administration released a new conventional arms transfer policy that emphasized human rights and civilian harm mitigation. Israel’s military campaign, which has included indiscriminate bombing of Gaza, raises serious questions about whether approving these sales violates that policy.

“We are also troubled by the decision to provide equipment for 155mm shells, which over 30 U.S.-based civil society organizations warned poses ‘a grave risk to civilians’ and are “inherently indiscriminate” when used in densely populated areas like Gaza.,” the lawmakers continued. “Congress and the American public deserve thorough answers on how this policy was applied for these two emergency transfers. Use of a national emergency waiver does not exempt the U.S. government from assessing whether arms sales are consistent with these policies. 

The letter requests information on how State determined an emergency existed, whether its conventional arms transfer policy was applied, and what mitigation measures and conditions were put in place to reduce the risks of civilian harm. The lawmakers asked for answers by February 9.

The letter is co-signed by Senators Jeff Merkley (D-Ore.), Bernie Sanders (I-Vt.), and Peter Welch (D-Vt.); as well as Representatives Earl Blumenauer (D-Ore.), Joaquin Castro (D-Texas), Judy Chu (D-Calif), Raúl M. Grijalva (D-Ariz.), Pramila Jayapal (D-Wash), Barbara Lee (D-Calif.), Betty McCollum (D-Minn.), Eleanor Holmes Norton (D-D.C.), Chellie Pingree (D-Maine), Mark Pocan (D-Wis.), Delia C. Ramirez (D-Ill.), Jan Schakowsky (D-Ill.), Jill Tokuda (D-Hawaii), and Maxine Waters (D-Calif.). 

Senator Warren has consistently called attention to the devastating civilian impact of the Israel-Hamas war and urged American foreign policy to prevent harm to civilians: 

  • In December 2023, Senators Warren, Sanders, Merkley, Tim Kaine (D-Va.), and Martin Heinrich (D-N.M.) sent a letter to President Joe Biden, calling for closer oversight of Israel’s use of U.S. weapons to ensure the weapons will not be used to cause preventable civilian harm.
  • In September 2023, at a hearing of the Senate Armed Services Committee, U.S. Senator Elizabeth Warren (D-Mass.) called on the Department of Defense (DoD) to improve investigations into civilian harm by collaborating with civil society organizations on the ground.
  • In July 2023, Senator Warren, a member of the Senate Armed Services Committee, and Chris Van Hollen (D-Maryland), a member of the Senate Foreign Relations Committee, and U.S. Representative Sara Jacobs (D-Calif.), a member of the House Armed Services and Foreign Affairs Committees, sent a letter to Secretary of Defense Lloyd J. Austin III, expressing concerns that a recent May 2023 U.S. airstrike in Syria may have killed a civilian.
  • In December 2022, Senator Warren and U.S. Representative Sara Jacobs (D-Calif.) sent a letter to Secretary of Defense Lloyd J. Austin III, raising concerns that the Department of Defense’s (DoD) September 2022 report to Congress on civilian casualties appears to undercount civilian casualties from U.S. military operations and that DoD is not exercising its authority to make amends to civilian victims and survivors.
  • In December 2022, Senator Warren announced priorities that she secured in the FY 2023 NDAA, including fundamentally reforming DoD's approach to preventing civilian harm by creating a Civilian Protection Center of Excellence to serve as a focal point for civilian casualty, providing s $25 million in dedicated resources to implement the Civilian Harm Mitigation and Response Plan being developed by DoD and reforms prescribed in the NDAA, and enhancing annual reporting on civilian harm.
  • In September 2022, Senators Warren, Bernie Sanders (I-Vt.) and Mike Lee (R-Utah) sent letters to DoD and the Department of State, calling on the Departments to thoroughly investigate how U.S. military support to the Saudi-led coalition fighting in Yemen may have led to civilian harm and analyze to the effectiveness of civilian harm reduction efforts by the Saudi and Emirati governments
  • In August 2022, DoD released its Civilian Harm Mitigation and Response Action Plan that was responsive to Senator Warren’s numerous proposals and calls for DoD to prioritize civilian harm prevention. 
  • In March 2022, Senator Warren and Senator Chris Murphy (D-Conn.) sent a letter to the Pentagon calling on it to open investigations into instances of civilian harm from U.S. military operations in Yemen, after reports of dozens of deaths.
  • In April 2022, Senator Warren and Representatives Ro Khanna (D-Calif.), Jason Crow (D-Colo.), Jacobs and Tom Malinowski (D-N.J.) announced two pieces of bicameral legislation that would overhaul the prevention, mitigation, reporting, and transparency of civilian harm caused by U.S. military operations, the Department of Defense Civilian Harm Transparency Act and the Protection of Civilians in Military Operations Act.
  • In February 2022, Senator Warren secured a commitment from LTG Michael Kurilla, nominee to be General and Commander of United States Central Command, to prioritize reforms to mitigate civilian casualties.
  • In January 2022, Senator Warren and Representative Khanna led almost 50 of their colleagues in a letter calling on President Biden to overhaul U.S. counterterrorism policy after U.S. drone strikes have killed thousands of innocent civilians.
  • In January 2022, Senators Warren and Murphy and Representative Khanna released a statement in support of DoD’s directive to prevent civilian deaths.
  • In November 2021, Senator Warren sent a letter to Senator Jack Reed (D-R.I.), Chairman of SASC, requesting that the Committee launch a formal inquiry to review the findings and implications of a New York Times report detailing how the U.S. military hid an airstrike in Baghuz, Syria that killed dozens of civilians.
  • Following the August 29, 2021, unmanned airstrike that killed ten civilians in Afghanistan, Senator Warren and Representative Ro Khanna sent a letter to Secretary Austin to use the tragedy of civilian harm to look into the Pentagon’s history of accidentally targeting innocent civilians and significantly under-investigating and undercounting civilian casualties.
  • In July 2021, Senator Warren and Representative Khanna sent a letter urging Secretary Austin to review why significant undercounts of civilian casualties persist and why DoD made zero ex gratia payments to grieving civilians last year despite authorization and funding from Congress.
  • In June 2020, Senator Warren and Representative Khanna introduced the Protection of Civilians in Military Operations Act, bicameral legislation that would enhance reporting on civilian casualties resulting from U.S. military operations, improve investigations into civilian casualties, and strengthen resources for the Department's policies and practices relating to civilian casualty prevention and responses.