US has collected intel it could use to judge Israel’s conduct of war

While American officials say they are not making judgments in real-time about whether Israel is abiding by the laws of war, the U.S. has gathered intelligence that might allow it to make such assessments.

The U.S. has collected intelligence and formulated detailed assessments related to both Israel and Hamas military movements and tactics in Gaza since the war began in October, according to two people familiar with the intelligence. That has included data on targeting by both sides, the weapons they appear to be using and the potential number of people killed in their ranks.

That information has been shared with members of Congress in several briefings, including with the members of the intelligence committees, the people said. Both individuals were granted anonymity to detail a sensitive issue.

State Department officials are also collecting reports of potential Israeli violations through a system unveiled in August called the Civilian Harm Incident Response Guidance, or CHIRG, according to Josh Paul, who quit the department over concerns about its approach to the war. Paul said some officials within the department’s Bureau of Political-Military Affairs have asked State’s legal wing to “provide information about their potential international law exposure as a result of approving these sales.”

That suggests that when President Joe Biden reiterated Tuesday that Israel was using “indiscriminate bombing” in Gaza — a breach of international humanitarian law — he was likely speaking about information he had. And his administration appears to have some of the data it would need to determine whether or not Israel is violating global rules of war.

“Here you have the president of the United States essentially accusing Israel of committing war crimes, while his administration refuses to conduct a thoroughgoing assessment of whether or not Israel's military campaign in Gaza is consistent with the law of war,” said Brian Finucane, previously a State Department lawyer who now advises the International Crisis Group.

Spokespeople for the State Department declined to comment Thursday on such specifics or the mechanics of any internal deliberations, but they have said in public briefings that the department is monitoring the situation and collecting information. The Office of the Director of National Intelligence declined to comment.

In explaining Biden’s comments, a parade of administration officials said the president just expressed his concerns about the toll of civilian casualties. They have also said that the administration is not conducting real-time legal assessments of Israel’s operations in Gaza because it does not have the intelligence needed to do so.

Former officials familiar with the process say that’s inaccurate.

“It's really disingenuous for people in the government to claim that it's too hard or we can't do this in real time. It's simply a choice. They choose not to do this,” said Finucane.

Indeed, U.S. policy requires the administration to make these kinds of assessments and refrain from transferring weapons should it find that violations of international law are “more likely than not” to occur.

While the Biden administration has unveiled seemingly stricter guidelines for vetting arms deals, there nonetheless is significant wiggle room in how its representatives — whether lawyers or political appointees such as the secretary of State — choose to interpret and apply them.

The administration’s version of the Conventional Arms Transfer Policy, for instance, was touted as a way to prevent abuses, but it also states that “all decisions on potential arms transfers will be made on a case-by-case basis” and lays out a number of potential loopholes.

Amid increasing public outcry over Israel’s bombardments in Gaza, lawmakers have specifically asked the administration for information about the degree to which Israel is using U.S. intelligence or weapons to target Hamas and whether those attacks have killed civilians. They have received several detailed briefings about Israel’s targeting in Gaza, including its use of non-precision guided munitions by the Israel Defense Force, according to one of the people familiar with the intelligence.

CNN reported Wednesday night the U.S. has intelligence indicating nearly half of the 29,000 munitions Israel has dropped on Gaza are so-called “dumb bombs” — that is, they aren’t precise when launched at a target, typically leading to more civilian casualties.

It’s unclear why the U.S. is not actively conducting legal assessments on Israel’s actions in Gaza.

One reason may be that international humanitarian law is notoriously difficult to apply, particularly during a war. The U.S. would likely need to understand Israel’s intent with each targeting decision. It would also need to determine if Israel was considering to the fullest extent possible whether the potential civilian loss of life in each attack outweighed the military advantage.

“That is the test,” said Todd Buchwald, the former head of the State Department’s office of Global Criminal Justice. “When you're looking at these things — to think about how you would calculate that — it does become very hard and very subjective.”

Any pronouncement that Israel violated international humanitarian law would likely have implications for Washington as well. It could mean that the U.S. would be legally complicit given the billions of dollars it spends a year to send weapons to Israel.

Asked about potential international humanitarian law violations by Israel, senior officials have instead focused on Hamas, saying the group is committing crimes by using civilians as human shields.

Officials are raising concerns about the rising civilian death toll in Gaza. The administration has publicly and privately pressed Israel to be more precise with its targeting in Gaza. National security adviser Jake Sullivan is in Israel and is set to speak to Israeli officials about the issue.

The debate comes as lawmakers, including from Biden’s own party, push for greater scrutiny of arms sales to Israel.

Sen. Bernie Sanders  (I-Vt.) has introduced a resolution demanding information on Israel's human rights practices amid the sustained bombing campaign in Gaza.

The resolution, made pursuant to the Foreign Assistance Act, is privileged, meaning Sanders can force a floor vote on the matter and, if passed, it would force the State Department to respond within 30 days — or see security assistance cut off. The effort would have to clear both chambers of Congress and be signed into law by Biden.

Matt Berg and Anthony Adragna contributed to this report.

A version of this story previously ran in POLITICO's National Security Daily newsletter. If you like this content, consider signing up!