Washington: The civilian death toll from Saudi Arabia's disastrous air war over Yemen was steadily rising in 2016 when the Department of State's legal office in the Barack Obama administration reached a startling conclusion: Top US officials could be charged with war crimes for approving bomb sales to the Saudis and their partners.
Four years later, more than a dozen current and former US officials say the legal risks have only grown as President Donald Trump has made selling weapons to Saudi Arabia, the United Arab Emirates and other West Asian nations a cornerstone of his foreign policy.
Yet rather than taking steps to address the legal issues, state department leaders have gone to great lengths to conceal them. Even after a state department inspector-general investigation this year revealed that the department had failed to address the legal risks of selling bombs to the Saudis, agency officials ensured that details of the finding were put in a classified part of the public report released in August and then so heavily redacted that lawmakers with security clearances could not see them.
At a congressional hearing on Wednesday, Democrats on the House Foreign Affairs Committee accused the state department's top lawyer and the assistant secretary overseeing weapons sales of negligence on civilian deaths and of covering up the legal risks.
Legal scholars say US officials are right to be concerned. No episode in recent US history compares to Yemen, where the United States has provided material support over five years to the Saudi-led coalition for actions that have caused the continuous killing of civilians. More than 127,000 people have died in the war, including 13,500 civilians in targeted attacks, according to an estimate from the Armed Conflict Location and Event Data Project.
US officials have had full knowledge of the pattern of indiscriminate killing, which makes them legally vulnerable. Legal scholars say prosecutors abroad " including those from nations like Sweden, Germany and Argentina that assert universal jurisdiction over war crimes anywhere in the world " could bring charges against US officials. Although there has been no move so far by any foreign court to do so, some state department officials who shepherd arms sales overseas are worried enough to consider retaining their own legal counsel.
Beyond courts in sovereign nations, charges against Americans over Yemen could also be brought in an international tribunal if one were set up to investigate atrocities in that war. United Nations investigators last week issued a detailed report on atrocities in Yemen that asked the UN Security Council to refer actions by all parties to an international tribunal for potential war crimes prosecution.
State department spokespeople declined to discuss the decision-making process but issued a statement that said the agency had a strategy to lessen civilian casualties before the last major arms sale to the Saudi-led coalition in May 2019. They 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 the Saudis and the Emiratis, who are part of the Saudi-led coalition.
The Obama administration had its own struggles with Yemen.
When a state department lawyer determined in 2016 that US officials could be charged with war crimes, the agency's top lawyer effectively set the opinion aside when he decided not to send the analysis to the secretary of state's office. By then the administration was already taking a tougher line on civilian deaths in Yemen. That December, a month before leaving office, Obama blocked a shipment of precision-guided bombs that he had agreed to sell to the Saudis.
But within months, the new Trump administration delivered the bombs Obama had halted. Then the 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 UAE.
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.
The spectre of war crimes
In March 2015, when the Saudi-led coalition first moved to dislodge Houthi rebels who had captured Sana, the Yemeni capital, Obama agreed to support the effort. His administration signed off on the sale of $1.3 billion in precision-guided bombs and bomb parts.
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 US bombs to attacks on homes, apartment buildings, factories, warehouses, a cultural centre, an agricultural complex, a primary school and other nonmilitary sites.
As concerns over such strikes were intensifying in Washington, the state department's legal office examined whether US officials who approved arms sales to the Saudis and their partners faced legal risks.
Drawing on an international tribunal case against Charles Taylor, the Liberian warlord, that the United States has cited in Al-Qaeda prosecutions, the legal office reached the alarming conclusion that it put in writing in a memo in 2016: US officials, including the secretary of state, could be charged with war crimes for their role in arming the Saudi coalition.
But the top State Department lawyer never sent the memo to the secretary of state's office.
Although the 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.
Scrambling for a legal shield
Over the spring of 2017, Trump's aides and some state department officials worked to unfreeze the bomb delivery that Obama had halted.
Still, officials in the Political-Military Affairs Bureau wanted assurances that they could do the president's bidding on arms sales without putting themselves in legal jeopardy. During one White House meeting, Mike Miller, then a senior state department official involved in arms sales, put the concerns bluntly: He said he was worried he could be found liable for aiding the killing of civilians.
US officials set to work to address the concerns, drafting guidelines for the Saudi and US governments to follow as a condition of future arms sales. But then the officials pared back the guidelines in their effort to push through the weapons sales.
After Trump abruptly fired his first secretary of state, Rex Tillerson, in March 2018, and as Pompeo awaited Senate confirmation to lead the state department, John Sullivan, the deputy secretary, served as the agency's acting head.
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 updating the legal analysis before the bomb sales moved forward. But the agency failed to do those, the inspector general later determined.
Pompeo took over soon after. That August, a coalition jet dropped a US-made bomb on a Yemeni school bus, killing 54 people, including 44 children.
The next month, 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. The move provoked a backlash in Congress and strengthened lawmakers' resolve to continue blocking arms sales.
By April 2019, Pompeo was frustrated by the delay, and 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.
Pompeo announced the emergency on 24 May, 2019, and the stalled weapons deals moved forward, including the sale of some 120,000 bombs and bomb parts to the Saudis and Emiratis. But 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.
Since the emergency declaration, the Saudis and their partners have sought to buy more US bombs. About $800 million in orders is now pending, held up in the same congressional review process that had frustrated Pompeo and the White House.
Michael LaForgia and Edward Wong c.2020 The New York Times Company