Q+A with Josh Paul

Josh Paul was a director in the State Department’s Bureau of Political-Military Affairs. He resigned from the State Department in October 2023 over the Biden administration's decision to send lethal military assistance to Israel for the war in Gaza. He spoke to Cristina Maza about how military assistance to Israel is approved and why the Biden administration has continued to send arms to Israel despite misgivings about the way Prime Minister Benjamin Netanyahu is prosecuting the war. This interview has been edited for length and clarity.

Why doesn’t the Biden administration use its leverage with Israel to more aggressively push for a cease-fire in Gaza?

I think it’s a combination of factors. One of them has been President Biden’s very clear personal commitment to the security of Israel. Another reason is political. When we saw the Biden administration pause a single shipment of 2,000-pound bombs back in April, the response from Congress was for the House to pass a bill demanding that arms transfers to Israel be expedited and not questioned.

Even within the Democratic Party, especially as you get closer to an election, the Biden administration is unwilling to do anything that would upset the apple cart in terms of support for their campaign from voters who currently support Israel’s current approach. And, of course, there’s also a long-standing U.S. set of policies in this space. I don’t think this is actually a pro-Israel policy. It’s a knee-jerk reaction to the Israeli request for arms rather than what is actually going to provide Israel with security.

The Biden administration presented a cease-fire plan in May and portrayed it as an Israeli cease-fire deal. Now, we’ve seen months of negotiations. Why is the administration saying this deal is around the corner when everyone else says it’s far away?

There has been, since the beginning, a fundamental misreading of Israeli Prime Minister Netanyahu and the extent to which he is willing to use this conflict for his own political purposes. There has been, certainly up to this point, a misunderstanding of the lack of overlap between Prime Minister Netanyahu’s interests and Israel’s interests.

I think there have probably been mixed messages from within the Israeli government. We know, for example, that Defense Minister [Yoav] Gallant has been for a long time supportive of a cease-fire and has argued that Prime Minister Netanyahu is not leading the negotiations towards that resolution. You can imagine that he and others within the Israeli defense and national security establishment are saying one thing to U.S. officials that they interact with, and perhaps Netanyahu is saying another thing.

You were involved in the approval process for weapons sales to U.S. allies. Can you describe what that process looks like and which humanitarian issues are part of the discussions?

The process is broadly bottom-up. The two main mechanisms are the foreign-military-sales system, which is government-to-government sales, or direct commercial sales, which are U.S. export licenses.

So, depending on which one of those it is, it’s either a foreign government or a U.S. company coming into the State Department to request authorization. It’s a bottom-up process that goes to the lowest level, either a licensing officer or policy officer at the State Department, and is then farmed out to those with equities around the department to review. Once all those positions are in, they move their way up the chain until they are ultimately approved at the assistant-secretary or undersecretary level.

What has been different for Israel over the past year is that it’s a top-down process. There has not been a policy-formulation process starting at the bottom levels, but simply direction that you will approve whatever request is coming in. That’s direct from the highest levels of the State Department and the White House.

There are two pieces on the humanitarian and human rights side of the considerations: security assistance and arms transfers. Security assistance is the funding. Arms transfers are the mechanisms.

I think it’s important to understand that most of the laws that relate to human rights attach themselves to the security-assistance piece—so to the U.S. funding—and not to the arms transfers themselves. Those are laws like the Leahy Law, or 620I of the Foreign Assistance Act, which says you can’t give assistance to a country that is restricting U.S.-funded humanitarian assistance. Those don’t apply to the arms transfers themselves. They only apply to the U.S. funding.

There is also a conventional-arms-transfer policy, a CAP policy. This is policy, not law, so it’s not binding. But the Biden administration’s policy is actually, at least on paper, the best yet of any of the conventional-arms-transfer policies that each administration since Carter has issued. It has, for the first time, determinative language, directive language, that says the transfer of arms shall not be authorized if it is more likely than not those arms will cause, contribute to, or aggravate the risks of violations of international law or harm to children, et cetera.

Second of all, the State Department’s current position is that it’s not more likely than not that the arms we’re providing Israel will violate international law. I think that is literally an incredible argument, and it’s very hard to believe, when we look at Gaza, that that is the case.

In fact, the British government, using a very similar standard, decided to suspend 30 arms transfers because of the risk of violations of international law.

If the laws only apply to funding and not arms transfers, does that mean Congress can’t do anything to stop weapons transfers after they have already appropriated the security assistance?

Congress still has a couple of options, but they require majorities in Congress. One option is under section 502B(c) of the Foreign Assistance Act, you can’t provide security assistance—or arms, for that matter—to a country that is involved in a consistent pattern of violations of human rights.

We saw Congress try to advance a bill along those lines, a resolution in the Senate back in January. Senator [Bernie] Sanders sponsored it. It got 12 votes.

The other mechanism relates to arms transfers. That’s the joint-resolution-of-disapproval mechanism to try to block a major arms transfer that has been notified to Congress. But no JRD has ever succeeded in blocking an arms transfer because it requires a two-thirds majority in both houses to overcome a presidential veto.

You mentioned that approval for weapons transfers to Israel have been top-down. Do State Department employees have to accept the policies or resign? Is there some middle ground between those two options?

For most employees at the State Department, there is relatively little that can be done if this is the policy coming from the secretary and the president. Certainly, people can decline to put their names on memos or to approve memos. That has been done in the last year.

You have a lot of people who are conscious of the risks of personal liability, particularly in the context of the International Criminal Court. When you approve an arms transfer, the options are either "OK," "info by request," or "no response." And there have been an increasing number of officers that have put themselves down as “no response” or “info by request” rather than "OK." You can take yourself out of the process, which sends a signal, but it doesn't actually change anything.

The other employees at the State Department who really could do something are the lawyers. If a lawyer was to issue an opinion that either 620I has been triggered, or that a certain arms transfer does not meet the requirements of the Arms Export Control Act, which includes, for example, the requirement that arms only be used for the purpose for which they were furnished, a legal opinion would be binding.

The bottom line is, for most policy folks at State, there’s not much they can do aside from take themselves out of the process, and certainly try to argue the case within the department. When this started, there were dissent channel cables, town halls, listening sessions, and all that sort of thing. My understanding talking to people who are still in the department is that has greatly died down, and that for the most part this is no longer a topic of conversation. The conversations didn’t go anywhere, and people are keeping their heads down and pretending this isn’t happening.

What kinds of conversations are taking place around the Leahy Law?

There is a separate process for Israel than for other countries. That is the Israel-Leahy vetting forum, which is the forum DAWN is now suing under FOIA to retrieve related documents.

Even prior to Oct. 7, at the working level of the forum, there had been consensus on a number of potential gross violations of human rights by Israeli forces. The problem was there was never will at the political levels of the State Department to advance any determinations to the secretary or to the deputy secretary.

What we have seen, particularly in the last three months, is that there has been some willingness to move a memo forward—but only in those cases where they can scratch together some sort of argument that those violations have been remediated, that the units in question may have committed gross violations of human rights but have taken appropriate action to remediate them so they can remain eligible for U.S. security assistance.