In an unprecedented move, the White House has submitted a funding request to Congress that includes a waiver allowing for the undisclosed sale of military equipment and weapons to Israel. The measure, buried within a $106 billion supplemental national security funding request, grants Israel the ability to purchase up to $3.5 billion in arms with complete secrecy.

Under the Foreign Military Financing (FMF) funding program, Israel is earmarked to receive $3.5 billion for military articles and services. Typically, Congress has oversight over such sales, ensuring transparency and accountability. However, the proposed waiver seeks to circumvent this congressional notification requirement, allowing the executive branch to unilaterally approve future arms sales without informing Congress.

The inclusion of this waiver has raised significant concerns among experts and former officials. Josh Paul, former director of congressional and public affairs for the State Department's Bureau of Political-Military Affairs, describes the proposal as unprecedented and a direct affront to congressional oversight prerogatives. Paul asserts that this move undermines transparency and eliminates the mechanism for Congress to understand the nature of arms transfers as they occur.

Foreign Military Financing requests, like the one in question, are essentially grants that enable countries to procure weapons and defense services from the United States and its defense contractors. Though Congress approves such requests, it retains the power to reject major arms sales and has authority over how the allocated funds are spent.

Furthermore, the congressional approval process is crucial for ensuring transparency. Notifications to Congress are published in the Federal Register and press releases are issued by the Defense Security Cooperation Agency (DSCA) regarding major arms sales. These public records are essential for journalists, watchdog groups, and arms control experts to monitor and track weapons sales.

Critics argue that the proposed waiver is redundant and unnecessary. Existing laws already allow the White House to approve foreign military sales in emergency situations, albeit with a requirement to notify Congress and provide a detailed justification. The Israeli waiver seeks to bypass this requirement entirely, removing the opportunity for congressional oversight in understanding the specifics of these transactions. This has led to concern among some experts that such shortcuts could undermine the vetting process and potentially lead to arms sales to military units implicated in human rights violations, in violation of the Leahy Law within the Foreign Assistance Act.

The Trump administration faced congressional scrutiny in 2019 when it utilized the existing emergency certification process to bypass a review of an $8.1 billion arms sale to Saudi Arabia, the United Arab Emirates, and Jordan. An investigation by the Office of Inspector General later revealed that the State Department had failed to fully assess the risks and implement necessary measures to prevent civilian casualties associated with the transfer of precision-guided munitions.

Interestingly, the Biden administration's proposed waiver, while framed as an emergency response, allows the funds to be utilized at any time before September 2025. This provision effectively grants Israel an open-ended pass for arms purchases without recurring congressional notification, even extending beyond 2025.

The Biden administration is urging Congress to expedite the passage of the funding package. The House has separated the $14.6 billion Israel military aid, which includes the $3.5 billion FMF earmark and the waiver language, into a separate bill connected to cuts in IRS funding. The Senate Appropriations Committee chairs state that they are currently drafting a bill in accordance with President Biden's full request.

The proposed waiver has sparked concerns among advocates for transparency and civilian protection. Advocates argue that allowing arms sales without meaningful scrutiny undermines efforts to safeguard against civilian harm and the potential for war crimes. They are calling on legislators to reject the White House's request for the notification waiver and instead push for greater transparency and accountability regarding weapons transfers to Israel.

As the Biden administration appears hesitant to impose restrictions or ensure compliance with international law, the responsibility falls on Congress to enact effective measures to avoid unintended consequences and potential violations.