Josh Paul, a former director in the Bureau of Political-Military Affairs at the State Department, is a senior advisor at DAWN.
In early 2021, in the first days of Joe Biden's presidency, his administration froze transfers of certain air-to-ground weapons to countries in the Saudi-led coalition fighting the Houthis in Yemen, a conflict that had resulted in tens of thousands of civilian casualties. The coalition, armed with American bombs and other munitions, had been responsible for, among other incidents, airstrikes that had killed hundreds of people in a wedding party and a funeral, and a strike on a school bus that had killed dozens of children. Last week, the State Department announced it was ending this pause and resuming the transfer of these weapons.
The Biden administration's reversal brought me back to Donald Trump's presidency, when I had played a role in the decisions that led to the institution of the pause in the first place.
In the waning days of the Trump administration, the State Department effectively gave up on the longstanding informal process for Congressional oversight of arms transfers. True, the process had been creaking for some time as a result of the tensions between the desires of Trump and then-Secretary of State Mike Pompeo to push high-tech American weaponry to Arab monarchies in the Gulf, and Congress' concerns over the human rights implications of doing so. Yemen was the focal point, as the Saudi-led coalition's air war there, and its staggering civilian toll, had led Congress to place several "holds" on arms transfers to Riyadh.
These tensions had peaked in May 2019 when the Trump administration used an emergency authority to push more than 20 major arms sales through Congress that had been held up in review. A year later, after several public hearings in Congress, the relationship between the State Department and Congressional oversight committees was still tense, but the review process that had existed since the 1970s had nevertheless resumed.
That fall of 2020, in the final weeks of Trump's presidency, following his election loss to Biden, the pressure was back on to push through as many major weapons sales to Saudi Arabia and the United Arab Emirates as possible before Trump left the White House. The first, and most significant such sale, was a $10 billion sale of F-35s for the UAE. Facing potential holds in the informal review process, Pompeo's State Department moved the case directly into what is known as formal notification—forgoing the emergency authority it had used a year earlier, but still an abrogation of the prerogatives for Congressional review that undergird the system.
There were further weapons sales in the queue. From my position in the Bureau of Political-Military Affairs, I had been pushing back on such arms transfers for years, cognizant of the risks to civilian lives, particularly in Yemen. At times, I had been able to leverage my relationship with the relevant oversight committees in Congress to apply some degree of pressure to the administration to hold off. But at this point in the cycle, the State Department's political leadership simply did not care anymore.
Biden's reversal brought me back to Trump's presidency, when I had played a role in the decisions that led to the institution of the pause on certain arms transfers in the first place.
- Josh Paul
In early December, the Assistant Secretary for Political-Military Affairs of the time, in consultation with Secretary Pompeo, decided that we would advance the remaining sales directly into formal notification, setting aside the informal review process under which Congress has the ability to place holds. In repeated and heated phone calls, I urged him not to do so, citing not only the human rights arguments, but the risk to the entire oversight mechanism should we demonstrate its lack of relevance so vividly, and the lasting harm to the trust between State Department staff and our counterparts in Congress. I think I was fortunate to have enjoyed a long personal friendship with that Assistant Secretary, which allowed me to get away with much. As it was, this intercession earned me the very diplomatically worded rebuke in my annual rating that I "was occasionally quick to rise to the defense of… the integrity of his professional relationships—at times, to the detriment of his objectives. His intent, however, was always for the betterment of our people and institutions."
By mid-December 2020, there were 14 cases remaining in the Congressional review process, and I was directed to draft a memorandum to Secretary Pompeo explaining what they were and what concerns related to them, while seeking his approval to notify Congress of them. Two of the 14 in particular stood out: sales to Saudi Arabia of GBU-39 Small Diameter Bombs and Paveway air-to-ground munitions. On the spreadsheet, the furthest column to the right listed the concerns about each of the 14 cases. Concerns for other cases included things like "regular process delays" or "concerns of human rights." For these two cases, the column said: "civilian deaths."
On December 16, I was directed that my chain of command wanted to get the memo to Pompeo by 4 p.m. that day for him to direct the immediate notification of these cases. As the "holder of the pen," I had the power—move the paper forward, or defy the directive and delay?
I looked at the calendar; the 16th was a Wednesday. Two days delay would get us to the weekend, meaning the notification would not be able to happen until the following Monday, December 21. By law, Congress has 30 days to review formal notifications of arms transfers for most countries, including Saudi Arabia. Any notification from Monday the 21st onward would mean that by the time the notification expired and the license could be issued, Trump would be out of office and Biden, with his promises to "end the war in Yemen," would be president.
Citing the need for a thorough legal review and generating a flurry of emails to demonstrate that one was ongoing, I held my bosses off until finally, late on Friday afternoon, I could do so no longer, and sent the memo up. Pompeo approved the memo over that weekend; Congress was notified of the Paveway sale on December 22.
The month that followed was not a typical presidential transition period, to put it mildly. But despite the chaos of January 6 and the abrupt departure of many senior officials in the State Department, the Biden transition team did begin its work, meeting with civil servants to understand the "hot issues" on their plate. From the start, I flagged for them these two arms transfer cases. Several members of the transition team had served as Congressional staff overseeing the State Department and, already being sighted on this issue, took it seriously. On January 20, the day of the inauguration—indeed, within half an hour of Biden's swearing-in—the word came down: do not issue the license for the Paveways; do not instruct the Department of Defense to move forward with the GBU-39s. The pause had started, and just in time. The notification expired the next day.
The day before the inauguration, during Antony Blinken's confirmation hearing for Secretary of State, the senior Democrat on the Senate Foreign Relations Committee, at the time Robert Menendez, told the nominee that "this committee has jurisdiction over arms sales and the arms sales process—the informal arms sales process under the current State Department has totally broken apart."[1] Menendez then asked Blinken directly: "Can I rely upon you to reengage in that informal process with the committee on arms sales?" Blinken's response was quite clear: "Yes, you can. We will come back to regular order."[2]
But it did not take long for the Biden administration to restart the debate around these arms transfer cases that had been pushed through in the Trump administration's waning days of abnormal disorder. Already by the late spring of 2021, some in the administration, such as Brett McGurk, the senior director for the Middle East on the National Security Council, had started arguing that the pause should be lifted.
In the years since, as the Biden administration has gradually warmed its relationship with Saudi Arabia—to the point now that its greatest foreign policy desire is to conclude a so-called "grand bargain" with the kingdom, including a security agreement and an agreement on sharing nuclear energy technology sharing—there were more demands to lift the pause on air-to-ground munitions transfers. But between pressure from Congress and a shared understanding among many in the executive branch—including a number of Biden appointees (among them some of the same officials who have been pushing to expedite arms to Israel)—that to do so would re-expose the State Department to the same risks of violating international law that its own lawyers and Inspector General had warned about previously in the context of the Saudi-led war in Yemen—the dam held.
That is, until last week. On Friday, the State Department announced that Secretary Blinken had lifted the pause on air-to-ground munitions sales to Saudi Arabia and the UAE that the Biden administration had instituted in its earliest days. They did not provide a thorough rationale for its reversal for these arms sales to Saudi Arabia and the UAE, but one can imagine the arguments being floated within the administration: increased regional tensions; increasing threats from Iran and Iran-backed militias; the need to demonstrate that the U.S. is a "reliable partner" (a commonly made argument for moving forward on distasteful arms transfers); and, of course, the need to keep Saudi Arabia "on side" as the Biden administration pushes for the same normalization and security deal with Riyadh that Jared Kushner had started working toward under Trump.
I can look back and know that the two days I bought in December 2020 through a small act of delay may have saved hundreds of innocent lives.
- Josh Paul
The resumption of these arms transfers should be of concern to the global human rights community. Between 2016 and 2020, the State Department, along with other U.S. government agencies, conducted assessments of the causes of civilian harm in the Saudi-led coalition's airstrikes in Yemen. Although these analyses highlighted and led to a program to work with the coalition on addressing technical challenges such as weaponeering and targeting mensuration—military terminology for which munitions are used for a particular strike and how accurately targets are measured—many of us continued to assess that the underlying problem wasn't one of precision or training. It was one of negligence, leadership and will—problems that have not gone away.
One of the internal rationales undoubtedly put forward by the Biden administration for resuming these arms transfers is the establishment of the Civilian Harm Incident Reporting Guidelines, or CHIRG, which were created in response to a 2022 report by the Government Accountability Office that found that "DOD officials told GAO they lack guidance for reporting such [civilian harm] incidents, and State officials could not provide specific guidance. Without such guidance, DOD and State may not be able to assess the extent to which U.S.-origin equipment has contributed to civilian harm in Yemen."
But as Charles Blaha, the former Director of the State Department's Office of Security and Human Rights, recently explained, the CHIRG process is under-resourced, lacks a formal avenue for the submission of reports, and, in the context of Israel, has produced results that are underwhelming at best. This is an assessment confirmed to me by former colleagues currently involved in the CHIRG mechanism who note that it is not tasked with making legal assessments of violations of international humanitarian law. These former colleagues also note that in almost all of the incidents that the CHIRG has reviewed of Israeli weapons use, it has failed to come to any conclusion warranting concern. In addition, the CHIRG is reactive—it only looks at incidents after they have occurred, which will be too late after vast tranches of munitions have already been transferred. And as designed, its outcomes only feed into future arms transfer decisions, rather than having any implications for ongoing defense cooperation.
The resumption of these arms transfers also flies in the face of a new—and welcome—State Department initiative to focus on security sector governance, or SSG. Simply put, SSG comprises the set of mechanisms that ensure that security sectors are rules-bound, accountable and transparent, which could range from internal controls such as independent inspectors general, to functional oversight from parliaments and civil societies. SSG is a vital component to ensuring that security forces respect human rights. Yet, while the Saudi military is certainly accountable to its own chain of command, it is hard to argue that it has any of the checks in place that make it accountable beyond that. President Biden's Conventional Arms Transfer policy makes assessments of the security sector governance of partners receiving U.S. arms a mandatory element of the policy review preceding any weapons transfer. But, as with the language in the same policy that prohibits arms transfers were it is "more likely than not" that they will be used to commit serious violations of international law, it seems the Biden administration is more than happy to set aside their own standards when it is politically convenient.
Moreover, the decision to resume air-to-ground munitions transfers to Saudi Arabia comes in a context in which we have repeatedly seen the Biden administration ignore very obvious issues with how partner countries use American weaponry, including air-to-ground munitions, in the case of Israel's military operations in Gaza. The administration's lifting of the pause within 24 hours of its notification to Congress of 6,500 more Joint Direct Attack Munitions (JDAMs) for Israel should be indicative of the low level of concern from both the State Department and the White House to mitigating civilian harm.
Working in the State Department, as I wrote in my resignation statement, often involves terrible compromises. But it also provides an immense opportunity to do good. I can look back and know that the two days I bought in December 2020 through a small act of delay may have saved hundreds of innocent lives. I doubt that those involved in the decision to end the pause and turn these sales back on will be able to look back in the years to come with the same confidence.
