Ex-State Dept. Official on Paused U.S. Weapons Shipment: 'Significant But Not Cause for Celebration'

Edited by Sam Thielman

EVENTS SURROUNDING GAZA are moving very fast right now. Israel has begun what it calls a "limited" military incursion into Rafah and has seized the Rafah Crossing—the only point of access to Egypt—while telling residents of eastern Rafah to run for their lives. Right before Israel pressed into Rafah, Hamas announced that it accepted the terms of an Egyptian-led proposal for a theoretically scaleable ceasefire in exchange for a hostage release, something Israel simultaneously dismissed but, in a concession to the challenge Hamas' acceptance created, sent a delegation to Rafah to examine further. Crucially, after portraying Hamas last week as the rejectionists, the Biden administration said on Tuesday that what Hamas agreed to is within diplomatic field-goal range of what Israel has already accepted. That creates additional pressure on Israel to accept the terms that emerge from the Cairo negotiations.

But the crucial, material component of U.S. pressure materialized after seven months of uncaveated material support for Israel's genocide. Biden, officials confirmed Tuesday night, has finally withheld a shipment of 2000- and 500-pound bombs to Israel, as a means of conveying its (caveated) objections to a "large-scale" Rafah incursion. 

Now: The Washington Post reported that Israel "has enough weapons supplied by the U.S. and other partners to conduct the Rafah operation if it chooses to cast aside U.S. objections." And Israel is also saying that its operation will occur within the parameters of those subjectively-vocalized U.S. objections—hence Israel calling the push into Rafah as "limited," and its leaflets telling residents to get to what some reports chillingly call "humanitarian camps." But the Biden team is portraying the withheld weapons as "a shot across [Israel's] bow." For the moment, it is accepting Israel's word that the Rafah campaign is limited, but that acceptance "does to a great extent depend on what comes next," the State Department's spokesman said Tuesday. 

Today was also supposed to be a big day for the State Department. It owed Congress a response as to whether it credits Israel's assurances that the Israel Defense Forces are not using U.S. weapons in operations that violate international humanitarian law. That's a requirement of Biden's pre-Oct. 7 policy against supplying U.S. weapons for war crimes, known as National Security Memorandum 20 (NSM), and an enormous test of U.S. credibility as a material accessory to the killings of approximately 35,000 Palestinians. But now, as Rafah is under attack, that report is going to be delayed, for what officials say will only be a few days. We'll see. 

To make sense of the Biden team finally beginning to leverage its arms relationship with Israel, as well as the limits of this new development, I called Josh Paul. Josh, as you may be aware, resigned from the State Department over Gaza—and, helpfully for today's purposes, resigned from exactly the part of State with jurisdiction over arms provisions. He's also been vocal that Israel, for purposes of Biden's policy, is unequivocally violating international humanitarian law (IHL). 

Paul cautioned that it's too soon to know whether the delay of the arms-compliance report is an aspect of this leverage or just a reflection of routine bureaucratic lethargy. Either way, he said, stopping future arms shipments relies not on what that report says, but on a "sea change" in policy—in other words, something Biden must choose. 

"I know that several of the inputs to this report from offices within the State Department have continued to argue that there have been no violations of IHL, although those in others have [contended there have been]," Paul noted. An edited version of our conversation follows. 

FOREVER WARS: How do you interpret the decision to pause this heavy-weaponry delivery to Israel, ahead of whatever this Rafah incursion turns out to be, along with the State Department decision to punt on the IHL assurances report?

JOSH PAUL: I don't know that the two are related. First of all, just on the NSM report, it's not clear to me if that's being withheld as an incentive matter, or it's just a matter that these things take time to move between the wickets and they're moving as fast as they can. 

On the suspension of the bomb shipment, that does seem to be unprecedented. It's significant. It's something many people have been asking the U.S. to do for seven months now. And it of course comes too late for 35,000-at-least Palestinians who have been killed, mainly by American weapons, in Gaza. 

It also seems to be a point of tactical leverage. But what we really need is a sea change in our policy toward security assistance to Israel. I think the administration has remained really clear that that is not what this is. 

One can also argue that there are also legal questions that have not been addressed by the administration that raise the question of whether these bombs should even be going in the first place. So I think it's significant but not cause for celebration. It seems to be done on a relatively narrow tactical objective, in terms of the operation in Rafah, and perhaps as well linked to humanitarian assistance. 

But the big picture here is that the U.S. will continue to provide weapons by the billions of dollars. And I think what we need to say here is: Is that making Israel any safer? Is that making America any safer? Look at the damage it's doing to the Palestinians. So it seems that while pausing a bomb shipment is unprecedented and significant, there is a much broader shift in policy that needs to happen. 

When you say the shipment pause is a point of leverage, what do you think the administration is trying to achieve in terms of Israeli behavior in Rafah? 

It seems like this decision was made several days ago, and they were trying to stop an Israeli incursion, or at least signal that the U.S. would not support it. I think it's an interesting contrast. They've been saying for several weeks now that Israel should not go into Rafah and apparently had decided to suspend an arms shipment to signal that. But the fact that they haven't suspended any arms shipments up to this point—should we take that to suggest they were all right with everything that went before? 

What do you expect this State Department assessment, of the credibility of Israel's assurances of IHL compliance with U.S. weapons, to look like? 

All available evidence in the public sphere, let alone what the U.S. government is able to gain through intelligence, should be [sufficient] to draw the conclusion that violations of international humanitarian law have occurred using U.S. weapons. That's what the NSM requires State to report on. 

I think there is plenty of space for skepticism that it will do so, considering that they have spent seven months saying that they have not seen any violations of IHL. I know that several of the inputs to this report from offices within the State Department have continued to argue that there have been no violations of IHL, although those in others have. I don't want to pre-judge it. I don't know where the report will land on that question and on the other questions. But certainly all the evidence is there for them to come to what I believe is the clear conclusion. 

If State says that Israel is violating international humanitarian law with U.S. weapons, is there any automaticity to those weapons shipments stopping? 

No, there isn't. 

The NSM didn't create any new legal requirements. Reporting to Congress doesn't necessarily trigger any legal requirements. The one place where it may impose consequences concerns restrictions on humanitarian assistance. If the report says Israel has restricted humanitarian assistance, particularly U.S.-funded humanitarian assistance, which is one of the things it's asked to look at, you would think that would then trigger Section 620I of the Foreign Assistance Act, which prohibits assistance to a country that is restricting delivery of U.S.-funded humanitarian assistance. 

Now, the administration has been arguing to Congress for the last couple of weeks that 620I does not apply to U.S. assistance to Gaza, on the grounds that that assistance is pooled funding. So, the assistance is not direct from U.S. AID with an American flag on it. It's money we give to the World Food Programme or UNRWA. That is then mixed with money from other countries. I think that's an absurd reading. But even in that circumstance, it's not clear that findings from the report would actually trigger any significant changes in law and policy on the part of the United States. 

So restricting further weapons shipments would require an affirmative policy choice on the part of the Biden administration? 

I think so. 

Finally, if the State Department comes out with a report that says "We believe Israel has credibly assured us that it is not using U.S. weapons in violation of international humanitarian law," what will that mean for the credibility of the State Department? 

Oh, I think that would do massive damage to the credibility of the State Department. I think honestly we're talking about why the report is delayed, and one of the reasons could be that it's a matter of timing. Because that is what they intend to say, releasing such a report during an Israeli operation in Rafah would just be an absurdity. 

Even without that timing, the notion that the U.S. could find there have not been any IHL violations is unbelievable. 

ALLOW ME THIS ONE JEWISH FEELING: I do not have the words to properly express how repulsive, especially from the perspective of Jewish history, I find it for Israel to drop leaflets on desperate refugees telling them to run for their lives to—I can't believe I'm seeing these words used in reporting on this—"humanitarian camps" during Yom Hashoah, the day of Holocaust remembrance. 

May the negotiators of Cairo find a way to get Israel to accept a ceasefire and hostage release in time to spare Rafah. 

OVER AT THE HANDBASKET MARISA KABAS covers the car attack on protesters at Columbia, carried out by Reuven Kahane, a local Islamophobe who punched a middle-schooler in 2005.

IN HAPPIER NEWS, don't miss Sam's New York Times Book Review essay on Neil Gaiman and Mark Buckingham's Miracleman: The Silver Age. A couple years ago we went on a reporting road trip and he told me the extremely tangled backstory to this book ever existing—something so mind-bending that it made the drive much more enjoyable. Sam's new essay expands upon that conversation wonderfully. [I’ve only ever gotten through this story when someone is locked in a moving car traveling interstate with me—Sam.]

WALLER VS. WILDSTORM, the superhero spy thriller I co-wrote with my friend Evan Narcisse and which the masterful Jesús Merino illustrated, is available for purchase in a hardcover edition! If you don't have single issues of WVW and you want a four-issue set signed by me, they're going fast at Bulletproof Comics! 

No one is prouder of WVW than her older sibling, REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP, which is available now in hardcover, softcover, audiobook and Kindle edition. And on the way is a new addition to the family: THE TORTURE AND DELIVERANCE OF MAJID KHAN.