U.S. Review of an Arms Sale to Israel: Issues for Congress
INSIGHTi
U.S. Review of an Arms Sale to Israel: Issues
for Congress
May 14, 2024
Overview
In May 2024, U.S. officials confirmed reports that the Biden Administration is “reviewing some near-term
security assistance” for Israel and has paused a shipment of 2,000-pound bombs and 500-pound bombs
based on concern about their potential use in the city of Rafah, Gaza. The Administration’s action comes
after inconclusive Israel-Hamas cease-fire negotiations and the subsequent launch of Israeli air and
ground operations near Rafah, where an estimated 1.4 million Gazans have gathered, including 1.1
million people displaced by fighting elsewhere in the Gaza Strip. For weeks, U.S. officials reportedly had
warned Israel not to proceed with major military operations in Rafah without adequately planning for
civilian safety and welfare. President Joe Biden said on May 8 that he had “made it clear to Bibi [Prime
Minister Benjamin Netanyahu] and the war cabinet, they’re not going to get our support, if in fact they go
on these population centers.” He also said, “We’re not walking away from Israel’s security; we’re walking
away from Israel's ability to wage war in those areas.”
Two days later, the Administration released its report to Congress under Section 2 of the National Security
Memorandum-20 (NSM-20). The report concluded that “given Israel’s significant reliance on U.S.-made
defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by
Israeli security forces since October 7 in instances inconsistent with its IHL [International Humanitarian
Law] obligations or with established best practices for mitigating civilian harm.”
Congress appears divided over the President’s weapons pause, with some lawmakers agreeing with the
President’s decision and others decrying it for what they call its effect on the “timely delivery of security
assistance to Israel.” Opponents of the pause in the House have reportedly planned a floor vote on the
Israel Security Assistance Support Act (ISASA – see below).
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Issues for Congress
Presidential Authority to Pause U.S. Weapons Sales
The President has a number of mechanisms to alter or end the sales of U.S.-origin defense articles. The
Arms Export Control Act (AECA) and the Foreign Assistance Act of 1961 establish the statutory
foundations governing Foreign Military Sales (FMS) and Direct Commercial Sales (DCS) to foreign
governments. The AECA prohibits the sale or delivery of U.S.-origin defense articles if the President
finds that a recipient country has used such articles for unauthorized purposes. The AECA also stipulates
that such countries would, absent a presidential waiver, be ineligible for future U.S. sales of defense
articles until the President determines the violation has ceased and recipients assure violations will not
recur. The law does not provide for such a waiver if Congress has adopted a joint resolution, which would
be subject to presidential veto.
The executive branch also has wide-ranging authority to cancel an FMS transaction prior to the articles’
delivery. The standard Letter of Offer and Acceptance (LOA) terms and conditions permit the U.S.
government, under “unusual and compelling circumstances, when the national interest of the U.S.
requires,” to “cancel or suspend all or part” of such a letter “at any time prior to the delivery of defense
articles.”
The U.S government similarly has extensive authority to cancel or modify export licenses for U.S.-origin
defense articles. Section 126.7 of the International Traffic in Arms Regulations (ITAR) states that such
licenses “may be revoked, suspended, or amended without prior notice whenever” the State Department
“believes that” the recipient has violated “the terms of any U.S. Government export authorization.” The
Department may also take these actions if it deems them to be “in furtherance of world peace, the national
security or the foreign policy of the United States, or is otherwise advisable.”
In 2021, the Biden Administration paused certain weapons sales and transfers to Saudi Arabia, reportedly
including transfers of air-to-ground munitions, based on concerns about the effect of Saudi military
operations in Yemen on civilians and U.S. national security interests.
U.S. Foreign Aid to Israel and Congressional Notification
President Biden’s weapons pause has sparked some congressional concern over whether the
Administration is obligating and notifying foreign assistance funding, such as Foreign Military Financing
for Israel. Congress appropriated $3.5 billion in FMF for assistance to Israel and related expenses in the
Israel Security Supplemental Appropriations Act. Such funds are available for obligation until September
30, 2025, and are required to have a spend plan within 15 days of enactment, outlined in Section 310 of
Division A. Regular notification procedures apply, but the legislation includes a provision waiving the
notification requirement for FMF funds if “the Secretary of State determines that to do so is in the
national security interest of the United States.” Congress monitors agency delay in making funds
available for obligation or expenditure through the Impoundment Control Act of 1974 (ICA).
Possible Legislation
ISASA would prohibit FY2024 or earlier funds from being used to withhold defense items/services to
Israel. It also would withhold funds from the Secretary of Defense, Secretary of State, and the National
Security Council until U.S. officials can certify that items withheld from Israel had been delivered. The
bill also would require a monthly report to Congress providing a list of the defense articles and services
provided to Israel since October 7, 2023. On May 13, National Security Advisor Jake Sullivan said, “We
are continuing to send military assistance, and we will ensure that Israel receives the full amount provided
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in the supplemental. We have paused a shipment of 2,000-pound bombs because we do not believe they
should be dropped in densely populated cities. We are talking to the Israeli government about this.”
Author Information
Jeremy M. Sharp, Coordinator
Emily M. McCabe
Specialist in Middle Eastern Affairs
Specialist in Foreign Assistance and Foreign Policy
Christina L. Arabia
Jim Zanotti
Analyst in Security Assistance, Security Cooperation
Specialist in Middle Eastern Affairs
and the Global Arms Trade
Disclaimer
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