Biden discussed possible Israeli war crimes in Gaza. He kicked the can down the road on Trump.

WASHINGTON – In the final weeks of his administration, President Joe Biden personally considered new U.S. intelligence on Israel’s devastating offensive in Gaza that raised concerns that U.S. and Israeli officials were violating U.S. and international law, and then rejected advisers’ suggestions to reduce U.S. involvement in the war, three former U.S. officials told News themezone.

The intelligence reports outlined Israeli officials’ own views on whether their treatment of Palestinians through large-scale attacks and severe limitations on humanitarian aid was illegal, two former officials said. U.S. officials identified the information as so serious and sensitive that it prompted an urgent meeting between agencies, including the president, according to a former official.

Biden, members of his Cabinet and senior advisers discussed possible dramatic responses, particularly limiting U.S. intelligence sharing with Israel, to reduce potential U.S. liability, the officials said; one said a high-ranking intelligence official advocatedr that movement. News themezone spoke with eight former officials, who requested anonymity so they could describe sensitive conversations. They did not share any intelligence or classified information.

“This report was probably called [Israel’s] legal compliance of [U.S. law] “It’s more in doubt than anything we’ve seen before” since the war began in October 2023, a former senior official said. Another said the material “showed how aware the Israeli government was about the illegality.” By then, lawmakers, government experts, and humanitarian groups had repeatedly argued to the Biden administration that Israel was violating Section 620i of the Foreign Assistance Act, which bans U.S. weapons to countries that block U.S.-funded aid; Washington is the main source of military support for Tel Aviv.

But a strong motivation for urgently addressing the new material was the suspicion that it meant that members of the Biden administration themselves could be in legal jeopardy if they knew about it and continued to help the Israeli campaign, two of the former officials said.

Reuters reported on Friday that Biden’s top policymakers viewed U.S. intelligence as showing “doubt” among some Israeli military lawyers about whether his tactics were legal and their belief that there was evidence to support war crimes charges. Israel has publicly maintained that its policies respect international and US law, and that the country’s authorities pursue any possible violations.

Brett McGurk Biden’s hawkish advisor in the Middle Eastwas heavily involved in arguing against any changes in U.S. policy in response to the intelligence, two of the officials told News themezone. Government lawyers ultimately said that U.S. support for Israel could continue because the United States had not gathered its own intelligence on Israeli violations of international law, Reuters reported.

Also around this time, Secretary of State Antony Blinken raised with News themezone the possibility that Israel was committing ethnic cleansing on other American officials, a fourth official, a former State Department official, told News themezone, hinting at a serious crime under international law. That language would have marked a significant change in the way Blinken spoke about Israel, several officials said. In public, Israel and the Biden administration regularly questioned conclusions by outside groups that Israeli activities amounted to ethnic cleansing or war crimes, and pointed to the brutality of the Palestinian militant group Hamas.

“Leadership was evaluating whether or not there was a desire to try harder. [in identifying troubling Israeli behavior]”What I saw in the pipeline were genuine questions asked by the secretary himself about whether what was happening constituted ethnic cleansing,” the former State Department official said. Another senior Biden State Department official told News themezone that the phrase “ethnic cleansing” was already regularly used by agency officials to describe Israeli actions, noting that they were alarmed by a number of policies enabled by the United States: “There were other issues that concerned us more, but this has a conceptual basis, so it’s sometimes a useful thing.”

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Blinken’s questions and suspicions apparently led nowhere. When State Department staff focused on international law requested their own intelligence report on possible Israeli ethnic cleansing, the former State Department official said the intelligence staff denied their request.

“I think it was more a matter of political appetite or, if you want to give the secretary the go-ahead, perhaps an understanding that there had been a pretty egregious set of patterns by which the question should be asked,” the official continued.

Blinken and McGurk declined to comment. Biden, the Israeli embassy in Washington and the State Department did not respond to requests for comment.

Previously undisclosed details of internal deliberations shed light on an important juncture for American politics and how Biden-era decisions that avoided accountability for Israel’s disruptive behavior helped President Donald Trump develop a US-Israeli policy that has been even more harmful to the Palestinians. At the same time, they show how, even a year after the war, and despite Biden’s pro-Israel instincts, top US officials came close to, but rejected, policy changes that could have mitigated the cost of the war.

‘Very likely legal exposure’

With Trump soon taking power and Biden’s aides hoping to achieve a ceasefire in coordination with his incoming team, Biden administration leaders were reluctant to modify their Gaza policy at the end of his term.

But the intelligence findings were taken very seriously, sources told News themezone. They gave US officials evidence of “specific motivations” among Israeli officials, a former senior official said. Biden administration staff had been quietly discussing their own potential responsibility for their participation in the Gaza offensive since a month into the war. Now, State Department and U.S. Agency for International Development (USAID) staff tried to “make the argument that, with this understanding, we would be knowingly violating the law,” according to the senior official, and State Department managers “were not rejecting the argument that there was very likely legal exposure based on the intelligence, but they would not compromise.”

American prosecutions of officials over national security decisions are very rare, but the Gaza war is also being examined by the International Criminal Court, which has issued arrest warrants for Israeli leader Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant (as well as Hamas leaders who have since been killed). And some countries maintain that serious crimes fall under “universal jurisdiction,” meaning they can prosecute alleged perpetrators, regardless of their nationality, in their own legal systems, regardless of the nationality of those people. Furthermore, there could be serious reputational costs for appearing to violate international and U.S. law or permitting the violation of others.

“Reporting this up the chain was a hot potato: no one wanted to touch it,” the senior official said. They believed that fear of being perceived as too critical of Israel, whose supporters wield significant political power, drove that thinking. Biden officials were concerned that attaching their names to a recommendation to limit U.S. support for Tel Aviv would hamper their future career prospects, the former senior official said, “which in itself is appalling.”

Finally, high-level concerns about the data spurred discussions that included Biden. McGurk led the reaction to reduce support, two officials said; he Controversial Biden advisor He often behaved like “Israel’s lawyer” when American officials questioned the country, another senior Biden-era colleague told News themezone.

Muhammad Hamed / Reuters

At his side was Jacob Lew, Biden’s ambassador to Israel. Two officials described their opposition as particularly aggressive and emotional. Lew also constantly questioned colleagues about their skepticism of Israeli behavior, other former officials told News themezone, while echoing The Israeli government vindicates itself. That December, Lew publicly attacked A US-backed monitor called out the Famine Early Warning Network System for suggesting that a famine was likely in northern Gaza, which Israel had besieged and attacked for months. (A formal famine determination requires data that monitoring organizations have largely been unable to collect during the war.)

Lew did not respond to a request for comment from News themezone.

Amid strong opposition to cutting some US aid to Israel, few Biden advisers pushed hard in the other direction, according to a former official. The official said considerations included the risk of angering far-right Israelis or emboldening Hamas and thus hampering ceasefire diplomacy, and whether it was appropriate to dramatically change U.S. policy before a new administration takes the reins.

In the end, Biden decided to leave matters in the hands of Trump, whose disdain for legal barriers and human rights had already been made clear.

When he took office in January, Trump doubled down on Biden’s policy of near-total support for Netanyahu. He imposed no consequences when Netanyahu broke a ceasefire brokered by Trump and Biden advisers in March, letting Israel block completely shipments to Gaza for two months, causing a famine confirmation there, and built on Biden-era planning by joining Israeli attacks on Iran.

But starting in September, Trump began pressuring Israel to reach another truce with Hamas. Under the new agreement, which began last month, Israel has reduced military operations in Gaza (although its deadly US-backed attacks, bombings and shootings continue). killing Palestinians) and has allowed a slight increase in aid and commercial shipments to the strip. US military officials appear to be inching toward greater scrutiny of Israel’s behavior, directly monitoring violations of the so-called ceasefire. with drones and develop a new coordination center that humanitarian groups hope will increase supplies to Gaza.

“Reporting this up the chain was a hot potato – no one wanted to touch it.”

– a former senior Biden administration official, on new US intelligence on Israel’s war in Gaza

However, Trump has not cited the need to respect legal assessments and conclusions of the United States and international law in his measures to rein in Israel. Nor has it addressed possible criminality by Israeli officials, who have been accused by lawmakers, watchdog groups (including in Israel), and international organizations of genocide, war crimes, crimes against humanity, and violations of U.S. law governing the use of American weapons. (Israel denies the allegations.) The president’s volatility could easily doom his efforts to calm tensions, while sidestepping issues of justice for Palestinians and systemic problems in Israeli policymaking could guarantee a future Palestinian-Israeli conflict.

Biden’s Gaza policy was largely a failure. His administration contributed to tens of thousands of preventable deaths, prolonged the war due to the president’s refusal to deploy American influence over Israel, and increased skepticism about American foreign policy abroad and among Americans, all without meeting Biden’s stated goals of preventing unnecessary suffering or war beyond Gaza, and not undermining respect for international legal rights. beginning. Trump finally managed to achieve one of the Biden administration’s main goals: freeing all Israeli hostages captured by Hamas in the horrific October 7, 2023, invasion of Israel that started the war.

Clarity about the decisions U.S. officials made during the Biden administration — and their chilling price — could prevent Washington from repeating costly mistakes.

Sen. Chris Van Hollen (D-Md.), who emerged as the leading critic of U.S. Gaza policy on Capitol Hill, told News themezone that he hopes to take into account Biden’s pattern of selectively applying the law to Israel. He specifically cited Section 620i, which officials said was one of the laws the administration’s last-minute deliberations focused on.

“For months, the Biden Administration had the information it needed to activate 620I and stop the transfer of offensive weapons to the Netanyahu government until its conduct in Gaza complied with American laws and values,” Van Hollen wrote in an email. “But instead of choosing to do the right thing and follow our laws, they chose to look the other way. In doing so, the Biden Administration was complicit in the loss of countless civilian lives and the prolongation of the war in Gaza. If the United States (and Democrats) truly stand for the values ​​we claim to have, we must apply them regardless of political expediency, friend or foe.”

Biden set an unfortunate precedent of lower standards, argued Scott Paul, Oxfam America’s peace and security director.

“The Biden administration had powerful tools to keep humanitarian assistance flowing to Gaza, but it failed to use them as Israel continued to ignore its requests and arbitrarily block aid to starving Palestinians. Until President Biden’s last moment in office, he flagrantly ignored the law to provide lethal weapons and political cover to Israel,” Paul wrote in an email. “Any effort to restore America’s credibility and the rule of law now will have to overcome that disastrous precedent.”

Confirm a pattern

The administration’s final discussions about acknowledging and reacting to the scope of the Israeli attack on Gaza came after repeated warnings from government experts that they should do so, and that failure to do so would only make the situation worse. In the intervening months, Israel killed thousands of Palestinians and drove hundreds of thousands into more desperate conditions.

Blinken referred to ethnic cleansing, for example, after clues that it was happening were “pretty obvious in the intelligence community reports if you paid attention to them,” the former State Department official said. State Department lawyers told Blinken in December 2023 that Israeli conduct likely violated international law, according to Reuters.

Meanwhile, recommendations to activate the 620i statute were shared with State Department leaders at least three times in less than a year, officials told News themezone, including in the final week of Biden’s presidency.

They noted that Blinken could have said Israel was breaking the law, but issued a special exemption to keep US weapons from being shipped to Tel Aviv.

American officials had evidence that intense Palestinian pain was the result of Israeli decisions, and that a hard line could make Tel Aviv relent. USAID administrator Samantha Power acknowledged at a congressional hearing that a famine was occurring in Gaza in April 2024, after News themezone revealed an internal US government cable. saying that was the case. That same month, Biden heavily pressed Netanyahu over an Israeli attack that killed staff at the World Central Kitchen aid group, and Israel subsequently dramatically increased the flow of humanitarian supplies, effectively confirming that deprivation among Palestinians was due to its restrictions. (Israeli and the US government’s analyzes both under the Biden and the Trump administrations have disproved Israel’s claim of large-scale aid theft.)

Some Biden staffers believed that after the election, once the electoral danger of angering pro-Israel voices was no longer a concern, the administration could honestly acknowledge the obstruction of Israeli aid for the public record.

State Department managers, known as undersecretaries, discussed activating the 620i as the Israeli offensive in northern Gaza became more extreme in October 2024, one former US official recalled, saying: “There was no substantial disagreement analytically… about whether the standard was met. It was a matter of lack of backbone.”

Former officials said government lawyers, particularly at the State Department and the White House National Security Council, were always cautious about endorsing any conclusion that Israeli or U.S. officials had violated the law, arguing that there was insufficient evidence to reach a conclusion, allowing senior officials like Blinken and national security adviser Jake Sullivan to make the same claim as well. That “is something that can always be said,” said the senior official.

Concerns about broader legal risk were also a factor. For the United States to confirm that Israel violated its aid law “would really justify the ICC prosecutor’s case in its favor,” a former US official argued. They said U.S. law should not be treated as “discretionary,” but government lawyers, particularly on global issues in the post-9/11 era, have focused not on firm determinations and facts, but on “legally available options” from which policymakers can choose from more than just firm facts, particularly in the post-9/11 era.

“It is a permissive legal approach rather than calling balls and strikes,” they continued.

Alberto Pizzoli/Getty

In October, Blinken and then-Defense Secretary Lloyd Austin issued a letter giving Israel 30 days to take steps to reduce aid obstruction or face potential limitations on American support. The deadline was notably set for after the election, but when it arrived, the State Department said Tel Aviv would face no repercussions for insufficient progress, although aid groups said Israel had largely failed to meet any of the U.S. demands and had in some ways worsened the humanitarian situation.

The following month, 74 House Democrats cited the Blinken-Austin letter in a message to the Biden administration seeking action and hinting at an Israeli violation of 620i.

“The Israeli government has not yet met the requirements outlined in your letter,” the lawmakers wrote. “Our concerns remain urgent and largely unresolved, including arbitrary restrictions on humanitarian aid and insufficient delivery routes, among others. As a result, Gaza’s civilian population faces dire famine. We believe that further administrative steps must be taken to ensure that Israel respects the assurances it provided in March 2024 to facilitate, and not directly or indirectly obstruct, U.S. humanitarian assistance.”

Within the administration, some officials argued, unsuccessfully, that Biden’s acknowledgment of the violation could set an important model, former officials told News themezone. Instead, the Biden administration’s inaction led to Trump’s policy of allowing a complete suspension of aid, and then a controversial new system run by the US-backed Gaza Humanitarian Foundation.

Guarantee impunity

The Biden administration’s decision on the new intelligence was part of a broader set of decisions against possible alternative ways for its policy to evolve. Together, the options fueled Israel’s sense of being a blank check from the United States and the impression that Washington has little regard for the Palestinians or the statutes it defends.

By October 2024, Blinken had received two sets of recommendations from State Department officials to apply sanctions on Israeli military units under the Leahy law, the US regulation that prohibits US support for foreign forces credibly accused of significant human rights violations. The memos, notably, were not rejected or blocked by normally Israel-friendly state offices, such as the Office of Near Eastern Affairs, because they were based on compelling evidence of Palestinian abuses that, among other factors, Israel’s own authorities sought to prosecute, former officials told News themezone. The Washington Post before reported on Leahy’s recommendations.

One of the former officials recalled urging Blinken to implement the Leahy measure, which had never before been used against Israel, until three days before the end of the administration.

That might have signaled to government bureaucracy that Leahy’s Israel-related investigations were a priority; now, according to the publicationhe The State Department estimates that its backlog of investigations of this type will take “several years” to review. Outgoing presidents often, in their outgoing terms, take symbolic steps that they know their successors will reverse, to send a signal about their vision of how foreign policy should evolve; Biden did so on January 15 by rescinding Cuba’s “state sponsor of terrorism” label.

As the Biden administration fades from memory, former officials have sought recognition and landed new positions. Blinken has joined the board of directors of the Center for American Progress think tank; Sullivan and McGurk have positions at Harvard University and, respectively, a podcast with Vox Media and a commentator position at CNN.

Few of those officials have publicly addressed detailed questions about specific decisions they made during the Gaza war.