Biden Discussed Potential Israeli War Crimes In Gaza. He Kicked The Can To Trump.

WASHINGTON — In the final weeks of his administration, President Joe Biden personally considered new American intelligence about Israel’s devastating offensive in Gaza that prompted concerns that American and Israeli officials were violating U.S. and international law – then rejected suggestions from advisers to reduce American involvement in the war, three former U.S. officials told HuffPost.

The intelligence reporting described Israeli officials’ own view of whether their treatment of Palestinians through large-scale attacks and severe limits on humanitarian aid was illegal, two former officials said. U.S. officials identified the information as so serious and sensitive that it prompted an urgent interagency meeting including the president, per one former official.

Biden, members of his Cabinet and senior aides discussed dramatic potential responses, particularly limiting American intelligence-sharing with Israel, to reduce possible U.S. liability, the officials said; one said a high-ranking intelligence official advocated for that move. HuffPost spoke with eight former officials, who requested anonymity so they could describe sensitive conversations. They did not share any intelligence or classified information.

“This reporting probably called [Israel’s] legal compliance with [U.S. law] more into question with anything we’d seen previously” since the war began in October 2023, a former senior official said. Another said the material “showed how aware the government of Israel was about the illegality.” Lawmakers, government experts and humanitarian groups had by then repeatedly argued to the Biden administration that Israel was violating Section 620i of the Foreign Assistance Act, which bars U.S. weapons for countries blocking U.S.-funded aid; Washington is the chief source of military support for Tel Aviv.

But a strong motivation for urgency in addressing the new material was the suspicion it meant the Biden administration’s own members could be in legal jeopardy by being aware of it and continuing to aid the Israeli campaign, two of the former officials said.

Reuters on Friday reported that top Biden policymakers considered U.S. intelligence showing “doubts” among some Israeli military lawyers about whether their tactics were legal and their belief there was evidence to support war crimes charges. Israel has publicly maintained that its policies respect international and American law, and that the country’s authorities pursue any potential violations.

Brett McGurk, Biden’s hawkish Middle East adviser, was heavily involved in arguing against any change in U.S. policy in response to the intelligence, two of the officials told HuffPost. Government lawyers eventually said U.S. support for Israel could continue because the U.S. had not gathered its own intelligence about Israeli violations of international law, Reuters reported.

Also around this time, Secretary of State Antony Blinken raised the prospect that Israel was committing ethnic cleansing to fellow U.S. officials, a fourth official, formerly at the State Department, told HuffPost — hinting at a major crime under international law. Such language would have been a significant change in how Blinken discussed Israel, several officials said. In public, Israel and the Biden administration regularly disputed outside groups’ conclusions that Israeli activities amounted to ethnic cleansing or war crimes, and pointed to brutality by the Palestinian militant group Hamas.

“The leadership was assessing whether or not there was appetite to go harder [in identifying troubling Israeli behavior]… what I saw being put in the pipeline was genuine questions being asked by the secretary himself as to whether what was happening constituted ethnic cleansing,” the former State Department official said. A separate senior Biden State Department official told HuffPost the phrase “ethnic cleansing” was by then being regularly used by agency officials to describe Israeli actions, noting that they were alarmed by a range of U.S.-enabled policies: “There were other issues we were more concerned about, but this has a conceptual grounding, so it’s sometimes a useful thing.”

Blinken’s questions and suspicions seemingly led nowhere. When State Department staff focused on international law requested their own intelligence briefing about possible Israeli ethnic cleansing, the former State Department official said intelligence personnel denied their request.

“I do think it was a question more of political appetite — or, if you want to give the secretary a pass, maybe a realization there had been an egregious enough set of patterns whereby the question should be asked,” the official continued.

Blinken and McGurk declined to comment. Biden, Israel’s embassy in Washington and the State Department did not respond to requests for comment.

The previously unreported details of internal deliberations shed light on a significant juncture for American policy and how Biden-era choices that avoided accountability for disturbing Israeli behavior helped President Donald Trump develop a U.S.-Israeli policy that has been even more damaging for Palestinians. Simultaneously, they show how even a year into the war, and despite Biden’s pro-Israel instincts, senior American policymakers came close to but rejected policy changes that could have mitigated the toll of the war.

With Trump taking over soon and Biden’s aides hoping to clinch a ceasefire in coordination with his incoming team, Biden administration leaders were reluctant to alter their policy on Gaza at the end of their time in office.

But the intelligence findings were taken extremely seriously, sources told HuffPost. They gave U.S. officials evidence of “specific motivations” among Israeli officials, a former senior official said. Biden administration staff had been quietly discussing their own potential liability for involvement in the Gaza offensive since a month into the war. Now, State Department and U.S. Agency for International Development (USAID) staff sought “to make the case that with this understanding we would knowingly be violating the law,” according to the senior official, and State Department managers were “not pushing back on the argument that there was very likely legal exposure based on the intelligence but wouldn’t commit.”

U.S. prosecutions of officials for national security decisions are very rare, but the Gaza war is also being scrutinized by the International Criminal Court, which has issued arrest warrants for Israeli leader Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant (as well as Hamas leaders who have since been killed). And some countries maintain that serious crimes fall under “universal jurisdiction” – which means they can prosecute suspected perpetrators, regardless of their nationality, in their own legal systems regardless of those individuals’ nationality. Additionally, there could be serious reputational costs for appearing to violate U.S. and international law or enable others’ violation.

“Reporting this up the chain was a hot potato: No one wanted to touch it,” the senior official said. They believed fear of being perceived as overly critical of Israel — whose supporters wield significant political power — drove that thinking. Biden officials worried that attaching their names to a recommendation to limit American support for Tel Aviv would hinder their future career prospects, the former senior official said, “which is in itself appalling.”

Eventually, high-level concerns about the information spurred discussions that included Biden. McGurk led the pushback to reducing support, two officials said; the controversial Biden adviser often behaved as “Israel’s lawyer” when U.S. officials questioned the country, another senior Biden-era colleague told HuffPost.

Aligned with him was Jacob Lew, Biden’s ambassador to Israel. Two officials described his opposition as particularly aggressive and emotional. Lew also consistently challenged colleagues over skepticism of Israeli behavior, other former officials told HuffPost, while echoing Israeli government claims himself. That December, Lew publicly attacked a U.S.-backed monitor called the Famine Early Warning Network System for suggesting famine-level hunger was likely in northern Gaza, which Israel had besieged and assaulted for months. (A formal determination of famine requires data that monitoring organizations have been largely unable to collect during the war.)

Lew did not respond to a HuffPost request for comment.

Amid heavy opposition to cutting some American assistance for Israel, few Biden advisers pushed hard in the other direction, per one former official. The official said considerations included the risk of angering hard-right Israelis or emboldening Hamas and hence stymying ceasefire diplomacy, and whether it was appropriate to drastically change U.S. policy before a new administration took the reins.

Ultimately, Biden chose to leave matters to Trump — whose disdain for legal guardrails and human rights had already been made clear.

When he took office in January, Trump doubled down on Biden’s policy of near-total support for Netanyahu. He imposed no consequences when Netanyahu broke a ceasefire negotiated by Trump and Biden aides in March, let Israel fully block shipments into Gaza for two months — sparking a confirmation of famine there — and built on Biden-era planning by joining Israeli attacks on Iran.

But starting in September, Trump began pushing Israel for another truce with Hamas. Under the new agreement, which began last month, Israel has reduced military operations in Gaza — though its deadly U.S-backed strikes, shelling and shooting continue to kill Palestinians — and permitted a slight uptick in aid and commercial shipments into the strip. U.S. military officials appear to be inching toward greater scrutiny of Israel’s behavior, directly monitoring violations of the so-called ceasefire with drones and developing a new coordination center that humanitarian groups hope will surge supplies for Gaza.

Yet Trump has not cited a need to respect U.S. and international law legal assessments and conclusions in his moves to check Israel. He also has not addressed potential criminality by Israeli officials, whom lawmakers, watchdog groups (including in Israel) and international bodies have accused of genocide, war crimes, crimes against humanity and violations of American law governing the use of American weapons. (Israel denies the allegations.) The president’s volatility could easily doom his effort to calm tensions, while dodging questions of justice for Palestinians and systemic problems in Israeli policymaking could guarantee future Israeli-Palestinian conflict.

Biden’s Gaza policy was largely a failure. His administration contributed to tens of thousands of preventable deaths, prolonged the war because of the president’s refusal to deploy American leverage over Israel, and boosted skepticism of U.S. foreign policy abroad and among Americans — all while failing to meet Biden’s stated objectives of preventing needless suffering or warfare beyond Gaza, and of not undermining respect for international legal principles. Trump eventually managed to achieve one of the Biden administration’s top goals: freeing all Israeli hostages captured by Hamas in the horrifying Oct. 7, 2023, invasion of Israel that began the war.

Clarity about the choices U.S. officials made under Biden — and their chilling toll — could stop Washington from repeating costly mistakes.

Sen. Chris Van Hollen (D-Md.), who emerged as the leading critic of U.S. Gaza policy on Capitol Hill, told HuffPost he hopes for a reckoning with Biden’s pattern of selectively applying the law to Israel. He specifically cited Section 620i, which officials said was one of the laws the last-minute deliberations in the administration focused on.

“For months, the Biden Administration had the information it needed to trigger 620I and to halt the transfer of offensive weapons to the Netanyahu government until its conduct in Gaza complied with U.S. laws and values,” Van Hollen wrote in an email. “But instead of choosing to do the right thing — and following our laws — they chose to look away. In doing so, the Biden Administration was complicit in the loss of countless civilian lives — and the prolonging of the war in Gaza. If the United States — and Democrats — truly stand for the values we claim to hold, we must apply them regardless of political convenience, friend or foe.”

Biden set a regrettable precedent of lower standards, argued Scott Paul, the director of peace and security at Oxfam America.

“The Biden administration had powerful tools to keep humanitarian assistance flowing into Gaza, but failed to use them as Israel continued to ignore its requests and arbitrarily block aid to starving Palestinians. Until President Biden’s final moment in office, he flagrantly disregarded the law in order to provide lethal weapons and political cover to Israel,” Paul wrote in an email. “Any effort to restore US credibility and the rule of law now will have to overcome that disastrous precedent.”

The administration’s closing debates about acknowledging and reacting to the extent of Israel’s battering of Gaza came after repeated warnings from government experts that they should do so, and that failing to would only worsen the situation. In the months in between, Israel killed thousands of Palestinians and pushed hundreds of thousands into more desperate conditions.

Blinken referring to ethnic cleansing, for instance, came after clues it was occurring were “fairly obvious in the intelligence community reporting if you paid attention to it,” the former State Department official said. State Department lawyers told Blinken in December 2023 that Israeli conduct likely violated international law, per Reuters.

Meanwhile, recommendations to trigger the 620i statute were shared with State Department leaders at least three times within less than a year, officials told HuffPost, including in the last week of Biden’s presidency.

They noted that Blinken could have said Israel was in violation of the law but issued a special waiver to keep American weapons going to Tel Aviv.

American officials had evidence intense Palestinian pain was a result of Israeli choices, and that a tough line could make Tel Aviv relent. USAID administrator Samantha Power acknowledged at a congressional hearing that famine was occurring in Gaza in April 2024, after HuffPost revealed an internal U.S. government cable saying that was the case. That same month, Biden heavily pressured Netanyahu over an Israeli strike killing staff of the World Central Kitchen aid group, and Israel subsequently drastically increased the flow of humanitarian supplies, effectively confirming deprivation among Palestinians was driven by its restrictions. (Israeli and U.S. government analyses under both the Biden and Trump administrations have refuted Israel’s claim of large-scale aid theft.)

Some Biden staff believed that after the election, once the electoral danger of angering pro-Israel voices was no longer a concern, the administration might honestly acknowledge Israeli aid obstruction for the public record.

State Department managers known as assistant secretaries discussed triggering 620i as Israel’s northern Gaza offensive grew more extreme in October 2024, one former U.S. official recalled, saying: “There was not a substantive disagreement analytically … of whether the standard was met. It was a matter of insufficient backbone.”

Former officials said government lawyers, particularly at the State Department and the National Security Council at the White House, were consistently wary of blessing any conclusion that Israeli or U.S. officials had violated the law — arguing there was insufficient evidence to reach a conclusion, enabling top officials like Blinken and national security adviser Jake Sullivan to claim as much too. That “is something you can always say,” the senior official said.

Concerns about broader legal jeopardy were a factor too. For the U.S. to confirm Israel violated its law on aid “would really make the ICC prosecutor’s case for him,” argued one former U.S. official. They said U.S. law should not be treated as “discretionary,” but government attorneys have, particularly on global affairs in the post-9/11 era, focused not on firm determinations and facts but on “legally available options” that policymakers can choose between more than firm facts, particularly in the post-9/11 era.

“It’s a permissive lawyering approach rather than calling balls and strikes,” they continued.

In October, Blinken and then-Defense Secretary Lloyd Austin issued a letter giving Israel 30 days to take steps to reduce aid obstruction or face possible limitations on U.S. support. The deadline was notably set for after the election, yet when it came, the State Department said Tel Aviv would face no repercussions for insufficient progress — though aid groups said Israel had largely failed to meet any of the U.S.’s demands while, in some ways, making the humanitarian situation worse.

The following month, 74 House Democrats cited the Blinken-Austin letter in a message to the Biden administration seeking action and hinting at an Israeli violation of 620i.

“The Israeli government has not yet fulfilled the requirements outlined in your letter,” the legislators wrote. “Our concerns remain urgent and largely unresolved, including arbitrary restrictions on humanitarian aid and insufficient delivery routes, among others. As a result, Gaza’s civilian population is facing dire famine. We believe further administrative action must be taken to ensure Israel upholds the assurances it provided in March 2024 to facilitate, and not directly or indirectly obstruct, U.S. humanitarian assistance.”

Within the administration, some officials argued — unsuccessfully — that Biden acknowledging the violation could set an important model, former officials told HuffPost. Instead, the Biden administration’s inaction bled into Trump’s policy of permitting a total halt on aid, then a controversial new system run by the U.S.-backed Gaza Humanitarian Foundation.

The Biden administration’s decision around the new intelligence was part of a broader set of decisions against possible alternative ways for their policy to evolve. Together, the choices boosted Israel’s sense of a blank check from the U.S. and the impression Washington has little regard for Palestinians or the statutes it champions.

By October 2024, Blinken had received two sets of recommendations from State Department officials to apply sanctions on Israeli military units under the Leahy law, the U.S. regulation barring American support for foreign forces credibly accused of major human rights violations. The memos notably were not rejected or blocked by State offices normally deferential to Israel, like the Near East Affairs bureau, because they were rooted in strong evidence of abuse of Palestinians which, among other factors, Israel’s own authorities sought to prosecute, former officials told HuffPost. The Washington Post earlier reported on the Leahy recommendations.

One of the former officials recalled urging Blinken to apply the Leahy measure — which had never been used against Israel before — as late as three days before the end of the administration.

That could have signaled to the government bureaucracy that Leahy investigations related to Israel were a priority; now, per the Post, the State Department estimates its backlog of such probes will take “multiple years” to review. Outgoing presidents often, in their lame duck periods, take symbolic moves they know their successors will reverse, to send a signal about their view of how foreign policy should evolve; Biden did so on Jan. 15 by rescinding Cuba’s “state sponsor of terror” label.

As the Biden administration fades from memory, former officials have sought recognition and plum new positions. Blinken has joined the board of the Center for American Progress think tank; Sullivan and McGurk have positions at Harvard University and, respectively, a podcast with Vox Media and a commentator position at CNN.

Few of those officials have publicly addressed detailed questions about specific decisions they made during the Gaza war.