The law, at least on paper, is quite clear: The sale or provision of lethal weapons by the United States to other countries is primarily governed by the 1976 Arms Export Control Act (AECA). In it, Congress directs the President, acting through the Departments of State and Defense, to limit arms sales to “friendly countries solely for internal security, for legitimate self-defense,” or “for the purpose of enabling the recipient country to participate in collective security or U.N. requested missions, or for the purpose of the construction of public works.” Congress can veto sales approved by the President, but it must do so by passing a joint resolution and most likely overcoming a presidential veto. Failure by Congress to pass such a resolution allows the sale under the AECA. In addition, the Foreign Assistance Act (FAA) of 1961 separately restricts “security assistance” to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights,” subject to certain exceptions.
That’s the theory. But the reality of how the executive branch is able to disregard these laws was dramatically illustrated by the resignation, 12 days after Hamas’s savage attacks in Israel, of Josh Paul, who served for more than 11 years as the director of congressional and public affairs for the State Department’s Bureau of Political-Military Affairs, an agency responsible for overseeing billions in arms sales. He told The New York Times that the problem with the current system is that “it rests on the executive branch making a determination that human rights violations have occurred.” In other words, any given administration gets to decide whether a country is engaged in human rights violations, and “there’s no incentive for the President to actually determine anything.”
Paul resigned in protest specifically because he was unable to use his position to prevent the Biden Administration’s rush to approve major weapons sales to Israel to allow it to launch a massive retaliation against Gaza in response to the Hamas attacks. In a matter of days, it became clear that thousands of non-combatant Palestinians—including women and children—had already been killed, trapped in Gaza by the Israeli lockdown. There are many more deaths to come as Israel carries out a ground invasion of Gaza and the United States appears likely to approve additional unrestricted arms sales to Israel.
In this dramatic context that had the attention of all the world, Paul protested the fact that U.S. law, as interpreted by the President, effectively allows the President—any President—unchecked authority to arm any country the United States wants to assist, regardless of the human rights consequences of the decision. This is the epitome of a separation of powers failure. Congress clearly intended to enact effective regulation to ensure that weapons sales were limited to “good” situations where the United States was helping an allied nation to defend itself and protect its own security while still upholding human rights. The situation with Israel broke down following recent events because the responsible bureaucrats, feeling unchecked by congressional regulation or supervision, acted on personal preferences to immediately side with Israel, even though no one could seriously doubt that the weapons would be used offensively to kill thousands of innocent civilians in Gaza. This dysfunctional pattern has been followed many times before.
This failure to regulate U.S. weapons sales will continue to haunt the world—and with fatal consequences—unless a meaningful separation of powers is restored. The current dysfunctional Congress is unlikely to tighten the regulatory framework and impose a meaningful check on presidential power. But there may yet be hope—in the courts. A new legal case involving massive civilian deaths in Yemen resulting from unrestricted U.S. weapons sales to Saudi Arabia and the United Arab Emirates seeks judicial intervention to check the executive branch’s failure to follow the most basic parameters set by the AECA and FAA.
The Yemen Case
In Amin Allawi Ali, et al. v. Mohamed Ben Zayed Al-Nahyan, et al., seven Yemeni nationals brought suit on March 2, 2023, in the District of Columbia, directly challenging the legal structure that allowed the United States to send weapons to a Saudi- and UAE-led coalition that orchestrated attacks on Yemen when Iranian-backed Houthi insurgents took control of Yemen’s capital, Sana’a, in 2014. The United States backed the coalition to drive back the Houthis, engaging in a proxy war that has led inevitably to the massacre of innocent Yemeni civilians. The author, International Rights Advocates’ executive director, was introduced to groups of civilian victims of the coalition’s indiscriminate bombing and decided to file the case to see if the laws designed to prevent the slaughter of innocents could actually be enforced and set a precedent to prevent future abuses of the process.
The plaintiffs were severely injured and had family members killed when the coalition dropped bombs on civilian gatherings in Yemen. The bombs hit a wedding, killing 49 people (including 13 women and 29 children), and a funeral, killing several hundred. The suit names as defendants the leaders of the governments of Saudi Arabia and the UAE, the major defense contractors whose weapons were identified at the scenes of carnage (Raytheon Technologies, Lockheed Martin, and General Dynamics), the CEOs of those corporations, and the U.S. Departments of State and Defense for failing to observe the laws that should have prevented the sale of the U.S. weapons that were used to attack innocent civilians in Yemen.
The horrific facts alleged in the complaint are supported by a remarkable report from the Government Accountability Office (GAO) that documents the underlying realities of the conflict in Yemen and the process under which the U.S. government supplied weapons to the coalition. As reported by the GAO, “The UN estimates that from March 2015 to August 2021 there were about 23,000 airstrikes by the Saudi-led coalition in Yemen, killing or injuring over 18,000 civilians.” During this same time period, the Defense Department administered the sale of military equipment worth at least $54.6 billion to Saudi Arabia and the UAE.
As noted, there are two legislative constraints on the U.S. government’s ability to provide arms to the coalition. First, as with the Israel example, the AECA directs that such sales be limited to “friendly countries solely for internal security, for legitimate self-defense.” Further, the FAA restricts “security assistance” to “any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights,” with certain exceptions.
Neither of these provisions should have permitted arms sales to the coalition for use in attacking Yemen. These arms killed thousands of civilians, deaths that could not remotely be characterized as for the “internal security” or “legitimate self-defense” of Saudi Arabia or the UAE. Moreover, both of these countries, domestically and in their attacks across the years in Yemen, were committing “gross violations of internationally recognized human rights.” Indeed, a September 2020 report by the Group of Eminent International and Regional Experts on Yemen (GEE) found that, in the words of the complaint, “since the beginning of the conflict, approximately 112,000 people have died as a direct result of hostilities, of whom around 12,000 were civilians.” A member of the GEE concluded that there were “reasonable grounds to believe that the parties to the conflict have committed and continue to commit serious violations of international human rights and international humanitarian law, some of which may amount to war crimes.”
While there are numerous legal claims asserted in the complaint against the various parties, regarding the conduct of Defense and State in approving arms sales to the coalition, the plaintiffs seek the only relief available to them: They ask the federal court to review whether the government acted in conflict with the specific legislative restrictions of the AECA and FAA governing arms sales. The facts alleged in the complaint make a strong case that Defense and State willfully and systematically ignored congressional restrictions in their approval of arms sales to the coalition:
Notwithstanding the strong recommendations by the GEE in its previous reports, the U.S. government has continued their support for the Coalition, including through arms transfers, thereby helping to perpetuate the conflict. According to Larry Lewis, who worked as a State Department adviser from 2015 to 2017, the U.S. government took steps to positively influence the conduct of the Saudi-led coalition and reduce civilian causalities. The efforts temporarily reduced the frequency of airstrikes on civilian targets, but the efforts were not sustained. Meanwhile, operational support and arms sales to the Saudi-led Coalition continued, with the U.S. government “struggling” to monitor how U.S.-made weapons were being used. This fragmented U.S. approach resulted in unmitigated civilian harm. President Trump’s aggressive arms sale policies were met with alarm by some in the State Department, in part because the administration did not seem concerned with human rights issues, according to several current and former State Department officials, who were not authorized to speak publicly.
The plaintiffs further allege that Defense and State violated the law by failing to perform a proper review of what the coalition bombings were doing to innocent civilians in Yemen. The AECA directs the President to “establish a program which provides for the end-use monitoring” of defense articles and services sold, leased, or exported. The act dictates that “to the extent practicable,” the end-use monitoring program “shall be designed to provide reasonable assurance” that the recipient of the arms complies with requirements imposed by the United States and that the articles and services are being used for the purposes for which they were provided. The U.S. government utterly failed to comply with this requirement.
The GAO report is devastating on this point: “DOD has not reported and State could not provide evidence that it has investigated indications that U.S.-origin equipment transferred to Saudi Arabia and UAE through FMS [the Foreign Military Sales program] may have been used for unauthorized purposes or against anything other than legitimate military targets.” Further, “DOD officials said there is no mechanism to track how foreign partners use defense articles and defense services transferred through FMS.” The report concludes, “As a result, DOD and State lack reasonable assurances that Saudi Arabia and UAE have only used U.S.-origin articles against legitimate military targets and for authorized purposes.”
The plaintiffs in this case are not arguing over judgment calls by State and Defense that they disagree with; their case demonstrates that these powerful agencies ignored the law and intentionally provided arms for purposes not permitted by the governing laws.
The U.S. Department of Justice recently responded to the complaint by filing a motion to dismiss. Highlighting the urgent need for judicial review, the government’s position is essentially that decisions by State and Defense about providing arms to support foreign conflicts are “foreign affairs” issues and “political questions” that are not reviewable by a court. That might be true if Congress had not passed the AECA and FAA, providing justiciable standards governing arms sales that State and Defense are not free to simply ignore.
The Judiciary Is Our Only Hope
The unfolding situation in Israel is a crisis that has already resulted in massive civilian death. The Yemen case provides a clear context for examining whether there is a sufficient legal structure established by Congress to prevent the sale to foreign countries of arms that could be used for an improper purpose, including killing innocent civilians. In the Yemen case, the court has the opportunity to establish an important precedent that no President can ignore congressional funding restrictions, particularly when there are extreme and lethal consequences, and that it remains the role of the federal courts to protect this balance. In other words, the doctrine of separation of powers is at stake.
One of the plaintiffs in the Yemen case, Fatima Mhamad Al Bayahi Al Kharabi, described what happened when she was attending the wedding of a close family member: “I heard a bang and a loud explosion that destroyed the house. The wall of the house fell on me and all the women at the wedding who were near me. I was hit in the head, lost my left eye, and broke my right foot.” This tragedy was repeated thousands of times in Yemen and is now being repeated again in Gaza. The AECA and FAA were enacted to prevent such horrors, and compliance is not, as the Biden and Trump Administrations have apparently concluded, optional. With Congress in paralysis and disarray, our only hope for preventing the unlawful killing of innocent civilians with weapons from the United States lies in the judiciary fulfilling its constitutional duty to ensure respect for the rule of law.