A home destroyed by an airstrike in the old city of Sanaa, in Yemen, 2018. Photo / Tyler Hicks, The New York Times
State Department officials have raised alarms about the legal risk in aiding airstrikes that kill civilians. The Trump administration recently suppressed findings as it sold more weapons to Gulf nations.
When President Donald Trump hosts the signing of a diplomatic agreement between Israel and the United Arab Emirates on Tuesday, the White House ceremony will also serve as tacit recognition of Trump's embrace of arms sales as a cornerstone of his foreign policy.
The president sweetened the Middle East deal with a secret commitment to sell advanced fighter jets and lethal drones to the Emirates. But White House officials are working to push through the weapons transfer in the face of broader concerns that the president's arms-sale policies could lead to charges of war crimes against US officials, a New York Times examination has found.
Those concerns — stemming from US support for Saudi Arabia and the Emirates as they have waged a disastrous war in Yemen, using US equipment in attacks that have killed thousands of civilians — will be the subject of congressional hearings Wednesday. House lawmakers are expected to question top State Department officials over their role in keeping weapons flowing into the conflict and burying recent internal findings on civilian casualties and the legal peril for Americans.
Interviews with more than a dozen current and former US government officials show that the legal fears related to the arms sales run far deeper than previously reported. Over the course of two presidential administrations, those concerns have prompted some officials to consider hiring their own lawyers and discuss the risk of being arrested while vacationing overseas.
United Nations investigators last week issued a detailed report on atrocities in Yemen that asked the Security Council to refer actions by all parties to the International Criminal Court for potential war crimes prosecution. Regardless of whether that occurs, prosecutors in a foreign court could charge US officials based on them knowing of the pattern of indiscriminate killing, legal scholars say.
Yet rather than taking meaningful steps to address the potential legal issues raised by the Yemen war, State Department leaders have gone to great lengths to conceal them, records and interviews show.
When an internal investigation this year revealed that the department had failed to address the legal risks of selling bombs to the Saudis and their partners, top agency officials found ways to hide this.
In 2016, when a State Department lawyer determined that US officials could plausibly be charged with war crimes, the department's top lawyers decided not to send the analysis to the secretary of state's office, though it was shared with some agency officials.
The State Department declined to discuss its decision-making process but said in a statement that it had put in place a strategy to lessen civilian casualties before the last major arms sale to the Saudi-led coalition, in May 2019.
The Obama-era decision not to elevate the troubling legal analysis was made as the administration was already taking a tougher line on civilian deaths in Yemen. In December 2016, President Barack Obama blocked a shipment of precision-guided bombs he had agreed to sell to the Saudis.
Within months, Trump delivered the bombs Obama had halted. Then his administration sought to advance still more sales: US$8.1 billion in weapons and equipment in 22 batches to Saudi Arabia and the United Arab Emirates.
Lawmakers blocked shipments for nearly two years, until Secretary of State Mike Pompeo instructed his subordinates to circumvent Congress. They did so by declaring an emergency over Iran, which prompted the inspector general review. That investigation not only documented the long-standing legal worries but also created a critical report that could itself increase the legal risks, scholars said.
In March 2015, when the Saudi-led coalition first moved to dislodge Houthi rebels who had captured Sanaa, the Yemeni capital, Obama agreed to support the effort. His administration signed off on the sale of US$1.3 billion in precision-guided bombs and bomb parts to replenish Saudi stockpiles depleted "due to the high operational tempo" in Yemen.
But it quickly became clear that the Saudis and their partners at the time, including the Emiratis, were either using the bombs negligently or deliberately aiming them at civilians. In the first 18 months of fighting, human rights groups linked American bombs to attacks on homes, apartment buildings, factories, warehouses, a cultural center, an agricultural complex, a primary school and other nonmilitary sites.
As concerns over such strikes were intensifying in Washington, a State Department lawyer examined whether US officials who approved arms sales to the Saudis and their partners faced legal risks.
Drawing on the international tribunal case against Charles Taylor, the Liberian warlord, that the United States has cited in al-Qaida prosecutions, the lawyer reached an alarming conclusion in a 2016 memo: US officials, including the secretary of state, could be charged with war crimes for their role in arming the Saudi coalition, according to six current and former government officials with knowledge of the legal memo.
But top State Department lawyers never sent the internal memo to the secretary of state's office. Brian Egan, the department's legal adviser at the time, did not respond to requests for comment.
Though the legal analysis did not advance within the State Department, the Obama administration opened a policy review.
Over the spring of 2017, Trump's aides and some State Department officials worked to unfreeze the bomb delivery that Obama had halted.
But officials in the department's Political-Military Affairs Bureau, which shepherds arms exports, wanted assurances that they could do the president's bidding without putting themselves in legal jeopardy.
During a White House meeting before Trump's visit to Saudi Arabia that May, one official, Mike Miller, then the director of that bureau's Office of Regional Security and Arms Transfers, put the concerns bluntly, according to two officials. He said he was worried he could be found liable for aiding the killing of civilians.
A brief exchange at the Pentagon that March had offered a potential breakthrough. Pressed by Defence Secretary Jim Mattis to "stop bombing the women and children," the visiting Saudi deputy crown prince, Mohammed bin Salman, had agreed to take steps to curb the killing of Yemeni civilians, according to participants.
US officials then drafted a set of guidelines for the Saudi and US governments to follow as a condition of future arms sales.
But over three months, officials eager to push through the weapons deals pared back the guidelines.
After Trump abruptly fired Secretary of State Rex Tillerson in March 2018, and as Pompeo awaited Senate confirmation to lead the State Department, John J. Sullivan, the deputy secretary, served as the agency's acting head.
The officials worried about the arms sales believed Sullivan to be attentive to the humanitarian concerns in the Yemen war. In the roughly three weeks he was running the department, they sent an appeal for legal clarity.
Sullivan responded by approving a memo the officials had drafted that recommended carrying out a robust strategy to reduce civilian casualties and an updated legal analysis before the bomb sales moved forward, according to two US officials.
Pompeo took over soon after. That August, a coalition jet dropped a US-made bomb on a Yemeni school bus, killing 54 people in an attack that Trump would later call "a horror show."
By April 2019, senior State Department political appointees were discussing a rarely invoked tactic to force through US$8.1 billion in weapons sales without congressional approval: declaring an emergency over Iran.
Pompeo announced the emergency May 24, and the stalled weapons deals moved forward.
But, critically, no updated civilian casualty mitigation strategy or legal analysis was carried out before the equipment was shipped, according to the inspector general's report.
Released this August, the report said that although Pompeo did not violate the law in declaring an emergency, the State Department had failed to take proper measures to reduce civilian casualties and the associated legal risk.
The public section of the final report, however, did not include an unclassified recommendation from an earlier draft: that the department should "update its analysis of legal and policy risks" related to selling bombs to the Saudi coalition, according to text obtained by The Times. The language of that recommendation was edited and moved to the classified annex after pressure from department officials.
Since the emergency declaration, which applied only to the sales last year, the Saudis and their partners have sought to buy more American bombs. About US$800 million in orders is now pending.
Written by: Michael LaForgia and Edward Wong
Photographs by: Erin Schaff, Doug Mills, Stephen Crowley, Sarah Silbiger, Tyler Hicks and T.J. Kirkpatrick
© 2020 THE NEW YORK TIMES
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