Ann Arbor (Special to Informed Comment; Feature) – On December 17, 2024, a group of Palestinian and Palestinian-Americans filed a complaint against the State Department with one simple ask: That the Department obey the Leahy law with regard to Israel.
The Leahy law prohibits U.S. assistance to foreign security force units credibly implicated in gross violations of human rights. When I was working in the State Department, we vetted over 200,000 requests for assistance annually, and prohibited assistance to thousands of units from countries all over the world even from NATO ally Turkey.
The only exception: Israel.
Despite years of credible reports of human rights violations by Israeli security forces — including in the State Department’s own human rights reports — the Department has never prohibited assistance to a single Israeli unit.
Department officials insist that Israel does not get special treatment under the Leahy law. This is false. There is a special Leahy vetting procedure for Israel, one that applies to no other country: the so-called Israel Leahy Vetting Forum (ILVF). The ILVF is a byzantine and delay-ridden process. Moreover, for any other country, decisions to prohibit assistance are made by action officer experts versed in the law, the facts of the cases, and the foreign security forces in question.
But not for Israel.
For Israel, such decisions are made at the political level, either by the Deputy Secretary of State (the Department’s second-highest official) or the Secretary. And in the only reported instance where an ILVF recommendation for prohibition of Israeli units managed to reach the Secretary, he refused to act, reportedly in order not to jeopardize ceasefire negotiations.
Under the Leahy law, however, such speculation is not grounds for refusal to execute the law. Even if it were, the link between applying U.S. law and ceasefire negotiations is non-existent. And certainly that excuse has evaporated since Israel unilaterally broke the ceasefire in March.
What is not speculation is that implementation of the law will provide concrete incentive for Israeli security forces to stop committing human rights violations. And we certainly know the consequences of failure to implement the law: continued Israeli impunity to commit gross violations of human rights, and worldwide loss of U.S. credibility.
When he was Senator, Secretary Rubio wrote that implementing the Leahy Law for Israeli units would strengthen Israel’s enemies. The reality is exactly the opposite. Israel’s enemies have drawn regional and international strength and support from reports of human rights violations by Israel’s security forces, including tens of thousands of deaths of women and children, while Israel’s strategic objectives have been undermined by the inability — or unwillingness — of Israeli forces to minimize civilian harm and respect international standards on the treatment of both civilians and combatants.
And U.S. interests have suffered due to our support for Israeli security forces that have committed human rights violations. Like Israel, the U.S. has become increasingly isolated in the world and has hemorrhaged credibility and diplomatic influence, especially in the global south.
This badly weakens the U.S. in our strategic competition with China and Russia. McDonald’s, Starbucks and other high-profile U.S. businesses face boycotts in the Middle East because of their perceived support for Israel. Maritime shipping and U.S. military installations have come under attack, and American soldiers have been killed. None of this is in the U.S. interest.
Implementing the Leahy law with regards to Israel is a modest proposal. It does not require any new law, nor any new initiative, nor any new funding. It does not decrease the overall funding for Israel. It would only affect units that have committed gross violations of human rights; rights-respecting units continue to be eligible for assistance. And the power to remedy the ineligibilities is in Israel’s hands: units can again receive assistance if Israel holds responsible security force members accountable for violations.
For ordinary Americans, this lack of enforcement raises basic questions: do you want your tax dollars going to foreign security force units that engage in the most serious human rights violations? If that isn’t bad enough, do you want your tax dollars going to foreign security force units responsible for the deaths of American citizens? Appallingly, Israeli units responsible for the deaths of American citizens Shireen Abu Akleh, Aysenur Ezgi Eygi, and Omar Assad continue to be eligible for U.S. taxpayer-funded assistance.
The lawsuit is groundbreaking in basing claims on the Administrative Procedure Act, which requires uniform administrative practices, and prohibits practices like the ILVF that are arbitrary and capricious. The lawsuit’s claims are strengthened by the Supreme Court’s 2024 decision in Loper Bright v. Raimundo, which allows courts greater latitude to scrutinize departments’ administrative decisions.
File. Secretary of State Marco Rubio, then Florida senator, addressed attendees during a presentation at the 20th Human Rights Initiative Conference in Washington, D.C. The U.S. Southern Command-sponsored conference commemorates two decades of the Human Rights Inititiative, and a close partnership with civil and military authorities in the region. (Photo by Raymond Sarracino/U.S. Southern Command Public Affairs). Public Domain. The appearance of U.S. Department of Defense (DoD) visual information does not imply or constitute DoD endorsement. H/t Get Archive.
This lawsuit is also part of a crucial national debate. The current administration is also refusing to obey the law in a number of other areas, including immigration, corrupt practices, and the rights of federal employees. Preventing this lawlessness lies at the heart of our democracy: under Article II of the Constitution, the executive branch is required to “take care that the Laws be faithfully executed.” There is no constitutional exception to this responsibility.
Ominously, the State Department’s specious rationale for not enforcing the Leahy law with regard to Israel appears contagious. Echoing Secretary Blinken’s far-fetched concerns about upsetting the Gaza ceasefire, a recent memo from Secretary Rubio purported to justify the deportation of a Columbia University student on the risible pretext that the student’s presence in the U.S. would “undermine the Middle East peace process.”
Enough. The U.S. has consistently urged other countries to abide by the rule of law. We must do that in our own country as well.
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