The Senate Cosplays Governing with Artificial Supplemental Aid Amendment
Why the sham legislation introduced by Democrats doesn’t actually seek accountability from recipients of American weapons
The only thing more dangerous than the lawmaker who boasts about their support for the American war machine is the lawmaker who tries to hide it. Earlier this month, a group of Senate members put on a clinic for how to attempt such a deception.
The war between Russia and Ukraine, a conflict responsible for more than half a million battlefield casualties, is nearing its second anniversary. Meanwhile, Israel’s continued bombardment of Gaza has entered its third month, with the official death toll eclipsing 20,000 and climbing by the hundreds each day. The US government has funded both conflicts and is currently angling to continue to do so.
In October, the Biden administration unveiled a $110 billion aid package comprising weapons shipments to Ukraine and Israel, as well as additional funds for immigration priorities in the US and countering Beijing’s supposed aggression in Asia.
On December 7, 13 Democratic Senators announced an amendment to this supplemental funding request with the ostensible purpose of tying this military assistance with a requirement that all recipients of the Pentagon’s weapons comply with both US and international law. In essence, the amendment aims to prevent innocent civilians from being killed by American-supplied bombs. A glance at the contents of this six-page proposal quickly reveals that it will do nothing of the sort.
The amendment has been co-sponsored by Senators Chris Van Hollen, Dick Durbin, Tim Kaine, Brian Schatz, Elizabeth Warren, Jeff Merkley, Peter Welch, Martin Heinrich, Tom Carper, Ben Ray Luján, Bernie Sanders, Mazie Hirono, and Ed Markey.
The amendment’s limitations on how countries like Israel and Ukraine should be allowed to utilize the US government’s munitions aren’t worth the paper they’re written on mainly because the legislation doesn’t address how these limitations could ever realistically be enforced. The very first line of the amendment makes that clear.
“Any defense articles or defense services provided pursuant to this Act shall be used in accordance with international law, including international humanitarian law and the law of armed conflict, and United States law,” section (a)(1) states.
As the senators reiterate in the joint press release that accompanies the release of this new amendment, the provisions do not apply to weapons that the “president determines will be used for strictly defensive purposes.”
The argument can be made that this initial section invalidates all of the ones that follow.
Since Israel claims that its entire campaign in Gaza is purely defensive, it’s unclear how this amendment could ever be utilized to hold it accountable for its current bombing campaign.
As Senator Van Hollen, one of the aforementioned co-sponsors, himself notes in a December 6 op-ed for The Washington Post, Israel’s airstrikes in Gaza have killed “10 times more children… than in nearly two years of war in Ukraine.”
The last page of the amendment specifies that the legislation interpreted “defense article” and “defense service” via the definitions supplied by the Arms Export Control Act (22 U.S.C. 2794). As one can see from the image below, these descriptions leave much to the imagination.
Because the amendment doesn’t bother to definitively spell out what’s “defensive” and what isn’t [beyond these extremely broad characterizations and the convoluted but still open-ended legalese found here], how it might someday be applied is a mystery.
The amendment also mandates that the White House submit to Congress periodic reports about whether or not the recipients of its weapons have complied with all applicable laws. What’s left unsaid is what Congress will do when the Biden White House submits a report stating that it’s found no instances of failures to comply. The amendment doesn’t include any language regarding how any of its mechanisms for accountability will ever be enforced, makes no mention of how lack of compliance will be quantified, and fails to state what [if anything] would trigger a suspension of weapons sales.
One of the components of the compulsory reports outlined by the amendment calls for “a description of any occurrences of such defense articles or defense services not reaching their intended recipient or being used for their intended purposes, and a description of any remedies taken.”
Remedies taken… what does that mean? If the countries we send weapons to are unable or unwilling to operate inside the law, would a simple promise to modify its future actions be enough for Capitol Hill? Again, this is something the text does not mention.
Furthermore, it would appear that the senators who helped author this unspeakably pointless amendment ultimately decided that it wasn’t pointless enough, and immediately softened its already hollow restrictions.
According to section (2)(B), the president can simply waive these requirements if it is ever “in the national security interest of the United States to do so…”
This purposely vague caveat appears in every defense bill, in every cosmetic piece of legislation that pretends to limit the US government’s power, while simultaneously reassuring Washington that it can essentially do as it pleases.
What the enactment of this amendment would change is unclear.
Senior staff members for the senators listed above did not respond to requests for comment on the proposed legislation.