A convoy of Israeli army tanks maneuvers near Gaza, November 24th.
At 11:00 pm on Friday night, the State Department notified Congress’s foreign affairs committees that it would be invoking emergency authority to bypass Congressional review in selling Israel nearly 14,000 rounds of tank shells—a type of ammunition Israel has so far used to attack militant forces in Gaza and Lebanon but have also hit civilian buildings such as schools and hospitals.
The decision to invoke emergency authority drew immediate criticism from Democratic members of Congress as well as human rights advocates who say that Congress must retain the opportunity to object to the sale of ammunition that Israel could use to harm civilians in Gaza and Lebanon. “The Biden administration should not bypass Congressional approval for weapons transfers, a process that is in place to ensure sufficient scrutiny and adherence to our US values and international law,” Democrat Rep. Betty McCollum told Jewish Currents. In a statement to Jewish Currents, fellow Democrat Rep. André Carson highlighted that the offensive nature of the weapons in particular merits review: “It is very concerning that Congress was bypassed in this case. It is important that the administration follow the established process and not create different standards for one ally over another, particularly when providing offensive weapons like tank shells,” he said. “Given the terrible disproportionality of civilian casualties in Gaza, more oversight and accountability are needed to address the humanitarian and human rights catastrophe unfolding each day the bombardments continue, not less.” Rep. Rashida Tlaib said in a separate statement that “rather than work for a ceasefire, [Biden is] sending more weapons to keep the massacres going,” while Senator Elizabeth Warren said on X (formerly Twitter) that it was a “mistake” to “bypass Congress to approve the sale of tank ammo for Israel amid unacceptable civilian harm.” Notably, Rep. Gregory Meeks, the most senior Democrat on the House Foreign Affairs Committee and a staunch supporter of Israel, also raised objections, telling Politico that he has “concerns” over the bypassing of Congressional oversight and that he wants “to make sure that oversight authority is continued.”
Skeptics of the tank shell sale say there is ample reason for Congressional Democrats to scrutinize it. Israel has reportedly used these types of tank shells in attacks on civilians and civilian infrastructure. Last month, a New York Times investigation uncovered evidence that Israel used a 120-millimeter tank shell—the type the US is now selling to Israel—to strike al-Shifa hospital in a November 10th attack that killed a 61-year-old man and injured two women, according to the hospital’s director. Last week, multiple investigations found that Israeli forces fired 120-millimeter tank shells at Reuters journalist Issam Abdallah in southern Lebanon, killing him. Human Rights Watch, Amnesty International, and Agence France Presse concluded that the tank attack was likely a targeted strike on Abdallah. “We have public documentation of apparent misuse of these weapons that raise serious questions about law of war compliance, [but] the administration is barreling ahead with transferring more of them to Israel, while shortcutting the normal process for doing so,” said Brian Finucane, senior adviser for the International Crisis Group’s US program and a former State Department legal adviser. Josh Paul, a former State Department official in the bureau that oversees arms sales who resigned in opposition to the Biden administration’s wartime policy, told Jewish Currents that the decision suggests Israel is running low on tank ammunition, which itself points to the scale of destruction of military operations in Gaza thus far. “That can only mean that so many thousands of these tank shells have already been used in Gaza, where they have caused so much devastation,” said Paul.
US law requires that the president formally notify Congress of an arms sale to Israel or other top allies 15 days before proceeding with the transaction. The notice triggers a review period, giving Congress the chance to block the sale via resolution if they have concerns over how the weapons may be used by a foreign country. Last month, for example, in response to notification of a $320 million munitions sale to Israel that was being proposed by the State Department, Rep. Ilhan Omar introduced legislation to block the deal. Omar’s bill is highly unlikely to come up for a vote given that most members of the Republican-controlled House Foreign Affairs Committee, which is where the bill will be first considered, support military aid to Israel.
The Arms Export Control Act, however, allows the president to waive such Congressional review in the event of an emergency involving US national security interests. It is this authority that the Biden administration has invoked to skip Congressional oversight and quickly push through the tank shell sale, with Secretary of State Antony Blinken saying that the decision to bypass Congress was necessary because “Israel is in combat right now” and “we want to make sure that Israel has what it needs to defend itself against Hamas.” Paul told Jewish Currents that according to his conversations with US officials, the administration decided to skip Congressional oversight after some Democrats scrutinized the transaction. “Republicans in the House Foreign Affairs Committee and Senate Foreign Relations Committee cleared it almost immediately, but the Democrats were asking questions,” he said. This apparently surprised the administration, who expected more compliance from Democrats. “Faced with what could have been an awkward conversation, they rushed to use the emergency procedure.” (Jewish Currents reached out to the Democratic chairs of the House and Senate foreign affairs committees about Paul’s account, but did not receive a response.)
This is not the first time the Biden administration has moved to shirk transparency on arms sales to Israel since October 7th. In the past two months, US officials have not made public the number of weapons being delivered to Israel. The administration is also pushing Congress to provide it with the authority to bypass transparency measures—which apply to every other country receiving military assistance—when it comes to sending Israel an additional $14.3 billion in military aid. Lillian Maudin, a founding board member at the group Women for Weapons Trade Transparency, said blocking transparency was an attempt to “prevent public knowledge and Congressional knowledge in order to prevent outrage on a wider scale from elected officials and citizens.”
The move to rush Israel more weapons comes as US officials repeatedly put out statements urging Israel to wage its war on Gaza more carefully, with more attention to preventing civilian harm. “The administration continues to express concern about civilian harm, but this is yet more evidence that it’s all just words,” said Matthew Duss, executive vice president at the Center for International Policy and a former foreign policy adviser to Senator Bernie Sanders. “When it comes down to it, they’re gonna keep passing them the ammunition to kill civilians.”
Finucane said that, in addition to undermining the administration’s rhetoric about curbing civilian suffering in Gaza, the sale of tank ammunition, as well as other weapons sales, threatens to undermine the administration’s goal of preventing the war on Gaza from becoming a full-blown regional conflict. “Is Israel envisioning prolonged combat operations in the Gaza Strip for which these shells would be used? Is it envisioning a potential significant escalation with Hezbollah—something the US government does not seem to want—in the north?” he said. “These are the bigger picture policy questions about what war Israel is going to use these for—and whether that’s a war the US wants to be fueling.”