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.
Burying a child who was killed in an airstrike in Sana, Yemen, in 2017.Credit…Yahya Arhab/European Pressphoto Agency
Sept. 14, 2020Updated 11:28 a.m. ET
WASHINGTON — When President 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 Mr. 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 American officials, a New York Times examination has found.
Those concerns — stemming from U.S. support for Saudi Arabia and the Emirates as they have waged a disastrous war in Yemen, using American equipment in attacks that have killed thousands of civilians — will be the subject of congressional hearings on 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 U.S. 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.
Concerns intensified under Mr. Trump as senior officials pursuing his arms-sale agenda clashed with rank-and-file federal workers who review and approve lethal exports.
No episode in recent American history compares to Yemen, legal scholars say, where the United States has provided material support over five years for actions that have caused the continuous killing of civilians.
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 American officials based on them knowing of the pattern of indiscriminate killing, legal scholars say. Some countries, including Sweden and Germany, assert universal jurisdiction over war crimes.
Spanish judicial officials in 2009 pursued charges related to the torture of prisoners in Guantánamo Bay, Cuba, against six officials in the George W. Bush administration, citing universal jurisdiction, but a higher court dismissed the case. This March, the International Criminal Court ruled that its chief prosecutor could open an investigation into the actions of American forces in the Afghanistan war — the first time the court has authorized a case against the United States. The Trump administration this month imposed sanctions on that prosecutor and another of the court’s lawyers, a sign of how seriously the administration takes the possibility of prosecution.
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. They ensured that the inspector general relegated details to a classified portion of a public report released in August, then insisted on heavily redacting the classified material so that even lawmakers with security clearance could not see it.
In 2016, when a State Department lawyer determined that American 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.
“If I were in the State Department, I would be freaking out about my potential for liability,” said Oona Hathaway, a Yale Law School professor and a Defense Department lawyer in the Obama administration. “I think anyone who’s involved in this program should get themselves a lawyer. It’s very dangerous territory the U.S. is in, continuing to provide support given the number of civilians who have been killed.”
Image Crown Prince Mohammed bin Salman of Saudi Arabia has close ties with the United States government and Jared Kushner, President Trump’s adviser and son-in-law.Credit…Erin Schaff/The New York Times
The State Department’s failure to elevate a substantial legal finding on the U.S. role in Yemen is emblematic of what scholars of executive powers say has been an increasingly problematic practice across administrations: Government lawyers who work on national security issues generally avoid putting in writing any analysis that could constrain policymakers.
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. It added that the department had “continued to work tirelessly” on reducing civilian harm in Yemen and elsewhere, citing redesigned policies, expanded analyses and new training for partners, which the Saudis and Emiratis were “eagerly accepting.”
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.
But other military aid continued. And by setting the legal opinion aside, the outgoing officials, regardless of whether they were aware of the potential consequences, ensured that it did not have sufficient weight when Mr. Trump took office.
Within months, Mr. Trump delivered the bombs Mr. Obama had halted. Then his administration sought to advance still more sales: $8.1 billion in weapons and equipment in 22 batches, including $3.8 billion in precision-guided bombs and bomb parts made by Raytheon Company, 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 longstanding legal worries but also created a critical report that could itself increase the legal risks, scholars said.
“The findings could be used as evidence in the future against U.S. officials or the U.S. government,” said Ryan Goodman, a New York University law professor who was a Defense Department lawyer in the Obama administration.
With the civilian death toll rising in Yemen, the American role in the war has become a significant political issue.
Joseph R. Biden Jr., the Democratic presidential candidate who was vice president when the conflict began, says he would end U.S. support for the war. By contrast, Mr. Trump is doubling down on arms sales and boasting of revenue from the Saudis.
“I have a very good relationship with them,” Mr. Trump said during an interview in February. “They buy billions and billions and billions of dollars of product from us. They buy tens of billions of dollars of military equipment.”
Protesters running from Houthi police troopers firing tear gas in Taiz, Yemen, in 2015.Credit…Anees Mahyoub/Reuters
Under Mr. Obama, top State Department officials could have confronted questions of American complicity in crimes carried out by the Saudi-led coalition in Yemen. Instead, they set the matter aside.
In March 2015, when the Saudi-led coalition first moved to dislodge Houthi rebels who had captured Sana, the Yemeni capital, Mr. Obama agreed to support the effort. His administration signed off on the sale of $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 American 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 Qaeda prosecutions, the lawyer reached an alarming conclusion in a 2016 memo: American 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.
And that year, scholars discussed a law journal paper laying out a war crimes argument for that type of conflict written by Brian Finucane, a State Department lawyer assigned to the agency’s Bureau of Political-Military Affairs. Speaking in a private capacity at a Yale Law School conference in 2018 on the Yemen war, Mr. Finucane said officials who could be prosecuted were “those who have decision-making authority or veto authority.” He added, “I think you’re looking at potentially very senior individuals.”
Secretary of State John Kerry and President Barack Obama in New York in 2015. American officials including Mr. Kerry could plausibly be charged with war crimes in Yemen, according to an analysis.Credit…Doug Mills/The New York Times
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. (Reuters reported on aspects of the legal concerns in 2016.)
Though the legal analysis did not advance within the State Department, the Obama administration opened a policy review, and Secretary of State John Kerry tried to broker a cease-fire.
Since 2018, Representative Ted Lieu, Democrat of California, has asked the State Department to release the memo, but it has refused to do so.
Mr. Trump, Secretary of State Rex Tillerson and other American officials announcing a deal with Saudi Arabia in Riyadh in 2017.Credit…Stephen Crowley/The New York Times
Over the spring of 2017, Mr. Trump’s aides and some State Department officials worked to unfreeze the bomb delivery that Mr. 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 Mr. 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 Defense 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.
U.S. officials then drafted a set of guidelines for the Saudi and American governments to follow as a condition of future arms sales. They envisioned the plan not only saving civilian lives, but also offering protection against claims of American complicity in war crimes.
“We worked pretty rigorously to try to give them a sense that this was now going to be a harder sell,” Tina S. Kaidanow, who headed the Political-Military Affairs Bureau at the time, said of the Saudis.
“We need you to stop bombing the women and children,” Defense Secretary Jim Mattis told the Saudi prince Mohammed bin Salman in 2017.Credit…Sarah Silbiger/The New York Times
But over three months, officials eager to push through the weapons deals pared back the guidelines.
Stuart E. Jones, then the acting assistant secretary in the Bureau of Near Eastern Affairs, led subordinates to quickly settle on conditions, officials said. Jared Kushner, Mr. Trump’s adviser and son-in-law, was helping to restart arms sales and wanted the president to announce them during the May 2017 trip to Riyadh, Saudi Arabia.
Emails obtained by The Times show that Mr. Jones and his colleagues discussed how to craft acceptable language about the use of precision-guided munitions that Adel al-Jubeir, the Saudi foreign minister, would sign before Mr. Trump’s trip.
In April 2017, Timothy A. Lenderking, a deputy assistant secretary in the bureau, wrote to Mr. Jones that he had met with State Department lawyers “and agreed on edits to cut back the language of the letter.” The next day, Mr. Jones wrote that Mr. al-Jubeir had “quickly agreed” to sign a letter to Rex W. Tillerson, then the secretary of state, and had “asked for language.” (Mr. Jones, who left the State Department in 2018, referred questions to the department.)
The letter listed about five assurances, including a promise by the Saudis to have their forces take part in a $750 million training program run by the U.S. military.
In Riyadh, Mr. Trump and King Salman announced the arms deal.
Secretary of State Mike Pompeo circumvented Congress to sell weapons to the Saudis.Credit…T.J. Kirkpatrick for The New York Times
After Mr. Trump abruptly fired Mr. Tillerson in March 2018, and as Mr. 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 Mr. 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.
Mr. 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 U.S. officials.
Mr. Pompeo took over soon after. That August, a coalition jet dropped an American-made bomb on a Yemeni school bus, killing 54 people, including 44 children, in an attack that Mr. Trump would later call “a horror show.”
The next month, Mr. Pompeo issued a formal certification to Congress that the Saudi-led coalition was working to minimize civilian deaths, despite news reports and internal State Department assessments to the contrary. Senior department officials had warned Mr. Pompeo against the certification, in part because they had grown more anxious over the legal issues, officials said.
A home destroyed by an airstrike in the old city of Sana in 2018.Credit…Tyler Hicks/The New York Times
By April 2019, senior State Department political appointees were discussing a rarely invoked tactic to force through $8.1 billion in weapons sales without congressional approval: declaring an emergency over Iran.
At the center of those discussions was Marik String, a young former Senate aide who had joined the State Department in 2017. By January 2019, he had become the acting head of the Political-Military Affairs Bureau and closely oversaw the emergency planning.
Mr. Pompeo announced the emergency on May 24, and the stalled weapons deals moved forward, including the sale of some 120,000 bombs and bomb parts to the Saudis and Emiratis.
But, critically, no updated civilian casualty mitigation strategy or legal analysis — as Mr. Sullivan had ordered — was carried out before the equipment was shipped, according to the inspector general’s report.
Released this August, the report said that although Mr. 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.
The day Mr. Pompeo declared the emergency, he also promoted Mr. String to be the State Department’s top lawyer. From that position, Mr. String tried to pressure Steve A. Linick, the inspector general, to drop his investigation, Mr. Linick, who was fired in May, said in congressional testimony in June. Mr. String’s office also handled the redacting of the report.
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 $800 million in orders is now pending, held up in the same congressional review process that had frustrated Mr. Pompeo and the White House.
From July to early August this year, at least three airstrikes by the Saudi-led coalition in northern Yemen killed civilians, including a total of nearly two dozen children, according to the United Nations, aid workers and Houthi rebels. One strike occurred during a celebration after the birth of a newborn baby, a human rights worker said. The boy, just 1 week old, did not survive.