Why Courts Don’t Enforce Arms Transfer Restrictions Under U.S. Law

On Sept. 24, ProPublica reported that Secretary of State Antony Blinken had rejected findings by the U.S. Agency for International Development and State Department’s Bureau for Population, Refugees, and Migration that the Israeli government blocked humanitarian aid in violation of Section 620I of the Foreign Assistance Act. 

This week’s ProPublica report is just one of the many frequent allegations that the executive branch violates U.S. law in the conduct of foreign policy. Amid civilian harm from the Israeli military campaign in Gaza, legislators, nongovernmental organizations, and former government officials have criticized U.S. arms transfers to Israel for breaching U.S. law. Sometimes, these allegations play out through litigation.

Observers may wonder what consequences arise for such violations, perhaps expecting courts to enforce U.S. statutes dealing with arms transfers as they do for civil rights laws or employment regulations. However, courts typically dismiss cases when plaintiffs sue to enforce statutes restricting the provision of arms or military aid. The reasons for such dismissals are rooted in the structure of the statutes in question and the disputes most often raised in arms transfer and security assistance litigation.

Establishing whether the executive branch has complied with such laws is one question;  examining why attempts to enforce legal restrictions on arms transfers and security assistance in U.S. courts have usually failed is another.  Several laws restrict arms transfers or security assistance; the Biden administration’s compliance with each has been disputed in the context of arms transfers to Israel. In this article I consider the role of courts in such disputes and analyze the relevant case law, finding three primary procedural reasons that lawsuits to enforce arms transfer restrictions have not succeeded.

Disputed Laws

Congress has authorized the executive branch to regulate the export of weapons. However, several statutes also restrict security assistance and arms sales to recipient countries on human rights or humanitarian grounds. Public disputes about the implementation of those laws often arise.

Three laws that legislators have accused the Biden administration of violating in its military aid to Israel are the Leahy Law, Section 620I of the Foreign Assistance Act, and Section 502B of the Foreign Assistance Act. Although other restrictions on arms transfers and security assistance exist in U.S. law and policy, concerns about compliance with these three statutes have been especially prominent since Israel’s campaign in Gaza began.

The Leahy Law (22 U.S.C. § 2378d and 10 U.S.C. § 362) prohibits the Department of State or Department of Defense from providing assistance to any unit of foreign security forces where there is credible information that they have committed a gross violation of human rights. Despite many credible allegations of gross violations of human rights by Israeli forces, no Israeli unit has been blocked from receiving assistance under the Leahy Law in its 27-year history. This year, the State Department found that several units committed gross violations of human rights but were “remediated,” a process established in the Leahy Law that allows a unit to receive U.S. assistance if the perpetrators of gross violations of human rights have been brought to justice. Retired Sen. Patrick Leahy (D-Vt.), who wrote and championed the law for decades, wrote in the Washington Post that the Leahy Law “has not always been equally enforced” and that “Israel … is a glaring example.” Charles O. (Cob) Blaha, who for seven years headed the State Department office responsible for implementing the Leahy Law, has argued that the State Department has not complied with the Leahy Law when it comes to Israel. Investigations by the Guardian, ProPublica, and CNN have documented how Israeli security force units receive special treatment in implementation of the Leahy Law. However, as former Department of Defense Associate General Counsel Sarah Harrison expressed in an interview with the New Yorker, “There is no Leahy court, right? There is no court of law that somebody could drag the executive branch to if they don’t apply these laws.”

Section 620I of the Foreign Assistance Act (22 U.S.C. § 2378–1) stipulates that the United States cannot provide security assistance to any country whose government “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.” Former State Department lawyer Brian Finucane argued in March that there is “strong basis to conclude this provision has been triggered” for Israel. Eight senators wrote a March 2024 letter to President Biden asserting that “[t]he Netanyahu government’s interference in U.S. humanitarian operations violates the Humanitarian Aid Corridor Act — Section 620I of the Foreign Assistance Act.” Dozens of House members have signed letters expressing similar concerns, as have humanitarian organizations operating in Gaza.

Section 502B of the Foreign Assistance Act (22 U.S.C. § 2304) bans security assistance to any country that engages in a consistent pattern of gross violations of human rights. Since its enactment in 1974, Section 502B has been applied only to a handful of countries, most recently Ethiopia. The executive branch has historically disregarded Section 502B’s restriction or resisted implementing the law. However, in January 2024, Sen. Bernie Sanders (I-Vt.) used a congressional enforcement mechanism in Section 502B to force a vote under the statute for the first time. Had the measure passed the Senate, it would have required the State Department to produce a report on Israel’s human rights practices and opened the door to a privileged vote to continue or restrict U.S. security assistance to Israel.

Judicial Enforcement

Generally applicable laws restricting arms sales and security assistance have existed for 50 years. Disputes about their application have arisen often, and the executive branch implements some such laws irregularly. Such disputes have resulted in lawsuits involving U.S. arms sales or foreign aid to Colombia, El Salvador, Israel, Italy, Nicaragua, Nigeria, Saudi Arabia, and the United Arab Emirates. Disputes about the implementation of U.S. arms transfer laws are especially prominent in the context of U.S. assistance to Israel amid its campaign in Gaza.

The United States is the largest arms exporter in the world, accounting for 42 percent of global arms exports. It is also the leading provider of weapons to Israel. However, U.S. courts generally decline to hear disputes regarding compliance with U.S. arms sales law. Dismissals of lawsuits seeking to enforce arms sales restrictions most often occur because courts find the dispute in question nonjusticiable. The justiciability doctrines are constitutional tests defining whether the judicial branch can adjudicate a dispute. In litigation around arms transfers and security assistance, the justiciability doctrines of standing and the political question doctrine have been the principal barriers to enforcement. The lack of a private right to action has also sometimes resulted in dismissals.

These doctrines have prevented courts from reaching the merits in litigation regarding arms sales and security assistance. In some instances, the cases focused on the statutes discussed above (Section 502B, Section 620I, and the Leahy Law), each prominent in public discourse on U.S. arms sales to Israel. In other instances, plaintiffs have sought to enforce structurally similar statutes with different triggers for suspending military aid. Those structural similarities make those cases relevant to this analysis. Other cases deal with the nature of arms transfer decisions as foreign policy tools more broadly and would be relevant in litigation concerning the aforementioned statutes.

Standing

Article III of the Constitution limits the federal judiciary’s jurisdiction to “cases” and “controversies.” Based on that limitation, courts have found that they may adjudicate disputes only if the plaintiff has standing, which the Supreme Court has described, in short, as a “personal stake in the outcome of the controversy.”

To establish standing, a plaintiff must show that they have suffered an “injury in fact” that is “fairly traceable” to the defendant’s conduct and that a favorable decision would likely redress their injury. Each of these three elements—injury in fact, traceability or causality, and redressability—has posed challenges in litigation involving arms sales and security assistance.

Injury in Fact

To establish standing, a plaintiff must show they have suffered an actual or threatened “concrete” injury. When a plaintiff seeks declaratory or injunctive relief, they must establish an ongoing or imminent future injury.

In some cases, courts have found that plaintiffs challenging arms transfer decisions have not suffered an injury in fact. Arms transfer litigation often involves a request for injunctive relief: Plaintiffs seek to compel the U.S. government to enforce a particular legal restriction or to cease providing military aid to a foreign government. Some plaintiffs have been unable to demonstrate that they will suffer a future injury. For example, in Indigenous People of Biafra v. Blinken, a Nigerian separatist group cited the Leahy Law and challenged the U.S. government’s 2017 sale of 12 Super Tucano aircraft to the Nigerian government. The plaintiffs asserted that the Nigerian government would use these planes to attack members of the plaintiff organization in aerial bombings. The U.S. District Court for the District of Columbia found that the case would require it to “predict what actions the Nigerian government will take in response to the United States’ actions,” and that it was “not well-suited” to speculate on the decisions of an independent foreign government. Relying on the 1983 case Lyons v. Los Angeles, the court also found that “allegations of past harm are not enough, without more, to establish future injury.”

To establish that they suffered an injury in fact, a plaintiff must have suffered a “particularized” and “concrete” injury, meaning they are affected in a “personal and individual way.” Plaintiffs in arms sales and security assistance cases sometimes raise general objections about U.S. foreign policy that do not arise to concrete and particularized injuries.

In other instances, plaintiffs invoke taxpayer standing. In general, an individual taxpayer does not have standing to sue by virtue of their status as a taxpayer. However, a narrow exception exists for challenges raised under the Establishment Clause of the First Amendment, subject to requirements outlined in Flast v. Cohen. In Clark v. United States, a group of Quaker taxpayers sought a refund on the portion of their taxes that went to El Salvador and the Nicaraguan contras, claiming that such assistance violated Section 502B of the Foreign Assistance Act. However, because the plaintiffs argued that the provision of support to El Salvador and the Nicaraguan contras violated a statute rather than a provision of the Constitution, they did not meet the requirements for taxpayer standing and the U.S. District Court for the District of Maryland dismissed their case.

However, the injury element of the standing analysis does not pose insurmountable barriers to arms transfer litigation as a general matter. In Siegel v. U.S. Department of the Treasury, two plaintiffs established that they had suffered a particularized injury when Israeli settlers seized their property. A deprivation of property also met the injury in fact requirement for standing in Talenti v. Clinton, discussed below.

Causation

Proving that a U.S. government defendant caused an injury to plaintiffs in arms transfer cases poses more significant hurdles. When suing the U.S. government, plaintiffs must draw a chain of inferences connecting an arms transfer decision to harm. Courts have often found that the connection between an arms transfer decision and a specific injury is too attenuated to fulfill the “causation” element of standing.

In Indigenous People of Biafra, the D.C. district court reasoned that it “would have to speculate as to whether the Nigerian government will decide to conduct additional aerial raids against Biafran population centers, whether aircraft supplied by the United States will be used to perform those raids, and whether those aircraft will cause particularized injury to the [plaintiffs] that they would not otherwise suffer.” The court’s decision emphasized the difficulty of establishing standing when one of its elements rests on the actions of a third party, and particularly a foreign government. The court ruled that the plaintiff “failed to establish that the injuries suffered … would be fairly traceable to the challenged conduct.” In another case, the D.C. district court cited Supreme Court precedent that it would not “endorse standing theories that rest on speculation about the decisions of independent actors.”

In New York Center for Foreign Policy Affairs v. U.S. Department of State (2024), plaintiffs who survived an Emirati airstrike on a refugee center in Libya using a U.S.-origin warplane sought an injunction to rescind a U.S. arms sale to the United Arab Emirates (UAE). Similar to Indigenous People of Biafra, the D.C. district court concluded that the plaintiffs failed to meet the causation prong because “individual plaintiffs’ allegations fail to show that the United States’ arms sale to the UAE is a substantial factor motivating potential future UAE airstrikes on refugee centers in Libya.”

Proving that a U.S. government defendant caused harm to a plaintiff through its provision of weapons or military aid presents difficulties for standing; demonstrating that security forces used weapons from the United States in a particular action requires access, evidence, and expertise that are often elusive. More generalized theories of U.S. support contributing to harm—including training security forces, emboldening a recipient government to commit abuses, or sending a message of political support—may be too attenuated to be “fairly traceable” to U.S. government action. 

Redressability

To establish standing, a plaintiff must show that a favorable decision would likely redress their injury. In lawsuits seeking compensation for past harm, redressability often means that a favorable decision would help a plaintiff recover from financial loss, including one associated with physical harm. But for cases seeking injunctive or declaratory relief to enforce a statute, including the arms transfer litigation considered here, a plaintiff must show that forcing compliance with the law would likely redress their injury. Doing so is especially difficult in arms transfer or security assistance litigation. Compliance would mean suspending arms transfers, and proving redressability would require a plaintiff to speculate about how a foreign government would respond to the United States suspending arms transfers or security assistance.

In Talenti v. Clinton, a plaintiff sought to enforce a provision of law prohibiting security assistance and arms sales to countries that have expropriated the property of a U.S. person. Although the provision has not arisen recently in the context of U.S. aid to Israel, it is structurally similar to the restrictions in contention. Talenti alleged that the Italian government had expropriated property he owned. The U.S. Court of Appeals for the D.C. Circuit ruled that the remedy Talenti sought would not redress the injury he suffered. In other words, Talenti could not show that cutting off arms sales and military aid to Italy would compel the Italian government to return or compensate him for his property. The statutory restriction included a waiver allowing the U.S. government to continue providing security assistance subject to a congressional notification. Therefore, the U.S. government could waive a restriction, continue assistance, and still comply with a statute restricting arms transfers. Talenti could not “demonstrate that congressional notification will cause the Italian government to compensate him for the appropriations.” The court posited that “to find standing, we would have to assume that the Italian government would respond to the suspension of aid by negotiating a resolution of Talenti’s claim. We have no reason to think a foreign government would be so inclined.”

In Siegel, the plaintiffs argued that U.S. military aid to Israel supported Israeli violations against Palestinians, including the seizure of two plaintiffs’ property. The D.C. district court ruled that “the chain of reasoning” connecting U.S. aid to Israel with the return of their property was “too remote and too speculative” to satisfy the redressability element of standing. The chain of reasoning also relied on the actions of multiple third parties.

As with causation, redressability raises issues that are difficult to overcome in arms transfer litigation. The defendant in litigation regarding arms transfer restrictions is typically an individual or agency in the U.S. government. To satisfy the redressability element of standing, the plaintiff must show that the relief sought—generally a cutoff of some or all weapons transfers or military aid to a particular country—would likely redress their injury. Doing so is exceptionally difficult because it typically requires speculation about how a foreign government would respond to such a cutoff.

Political Question Doctrine

The political question doctrine is rooted in the separation of powers, and it bars the judicial branch from hearing issues “entrusted solely to another branch of government or beyond the competence of the judiciary to review.” An early expression of the doctrine came in Marbury v. Madison, in which Chief Justice Marshall wrote, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” In Baker v. Carr, the Supreme Court established six tests to determine whether the need for deference to the executive and legislative branches renders an issue nonjusticiable. The Court ruled that determining whether a claim raises a political question requires assessing if it necessarily involves:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or

[2] a lack of judicially discoverable and manageable standards for resolving it; or

[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial decision; or

[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or

[5] an unusual need for unquestioning adherence to a political decision already made; or

[6] the potentiality of embarrassment from multifarious pronouncements by various departments of one question.

The presence of any single factor is sufficient to require dismissal on the basis of the political question doctrine, but, in practice, there is often significant overlap between the factors.

The political question doctrine has been particularly prominent in foreign affairs cases. In the 1918 case Oetjen v. Central Leather Co., the Supreme Court concluded, “The conduct of foreign relations of our government is committed by the Constitution to the executive and legislative— the political—departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” The Supreme Court in Japan Whaling Association v. American Cetacean Society described the political question doctrine as excluding “from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the executive branch.”

Baker established that “it is error to suppose that every case or controversy that touches foreign relations lies beyond judicial cognizance.” Nevertheless, as the U.S. Court of Appeals for the Ninth Circuit put it in Alperin v. Vatican Bank (2005), “‘cases interpreting the broad textual grants of authority to the President and Congress in the areas of foreign affairs leave only a narrowly circumscribed role for the Judiciary.’”

The political question doctrine has often provided grounds for the dismissal of cases seeking to challenge arms transfer and security assistance decisions. Although it doesn’t deal directly with the Leahy Law, Section 502B, or Section 620I of the Foreign Assistance Act, Corrie v. Caterpillar (2007) remains one of the most cited cases in decisions regarding the political question doctrine in the context of arms sales and military aid. In 2003, an Israeli military bulldozer crushed to death Rachel Corrie, an American activist peacefully obstructing the demolition of a home in Rafah, Gaza. A group of plaintiffs, including Corrie’s family and several Palestinian families injured during the demolition of their homes, sued Caterpillar, which sold bulldozers to the Israeli military. In Corrie, the U.S. Court of Appeals for the Ninth Circuit ruled, “Whether to grant military or other aid to a foreign nation is a political decision inherently tangled in the conduct of foreign relations.” Each of the Corrie family’s claims, the court found, “unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF.” The Corrie family’s claims were therefore ruled nonjusticiable.

In Abusharar v. Hagel, a Palestinian-American plaintiff sued the secretaries of State and Defense to compel enforcement of the Leahy Law for units of Israeli security forces. Israeli forces destroyed Abusharar’s family home in Gaza and killed dozens of his relatives. The 2014 decision of the U.S. District Court for the Central District of California concluded succinctly, “This case essentially asks this Court to determine US foreign policy. The Court cannot do so.” The court ruled, “The decision to provide military support to a foreign nation is a quintessential political question that this Court cannot review.”

In Dickson v. Nixon (1974), the plaintiff challenged the constitutionality of legislation authorizing the President to provide $2.2 billion in emergency military assistance to Israel. Although the dispute did not arise under a statute, it did deal with foreign aid decisions in the context of the political question doctrine. The U.S. District Court for the Western District of Texas ruled that the case presented a nonjusticiable political question because it involved “the exercise of a discretion demonstrably committed to the political branches.” The U.S. Court of Appeals for the Fifth Circuit affirmed in Dickson v. Ford (1975), holding that “a determination of whether foreign aid to Israel is necessary at this particular time is a ‘question uniquely demand[ing] single-voiced statement of the Government’s views.’” (A 2024 case, Mai-Trang Thi Nguyen v. United States, came to a similar conclusion regarding U.S. military aid to Israel.)

The political question doctrine is also at the heart of Ali v. al-Nahyan, a case currently before the D.C. district court. Yemeni plaintiffs are suing U.S. officials, foreign government officials, and weapons manufacturers for injuries and deaths from bombings of public gatherings in Yemen. The Saudi-led coalition carried out the attacks using weapons from the United States, and the plaintiffs allege violations of both Section 502B and the Arms Export Control Act, among other statutes. The plaintiffs’ attorney rebutted political question arguments in an article this year, asserting that the case offers an opportunity for the court to “establish an important precedent that no President can ignore congressional funding restrictions, particularly where there are extreme and lethal consequences, and that it remains the role of the federal courts to protect this balance.”

The most recent appellate decision regarding the political question doctrine in the context of U.S. arms transfers came in July in the Ninth Circuit’s decision in Defense for Children International-Palestine v. Biden. The case bears relevance for any litigation dealing with the enforcement of arms transfer statutes because of its treatment of arms transfer decisions under that doctrine. The plaintiffs argued that the Biden administration’s support to the Israeli government, including through its arms transfers, violates the United States’s obligations under the Genocide Convention. The court expressed concern that “with no manageable standards to govern what kind of support to provide an ally in wartime, plaintiffs’ lawsuit would place our country’s approach to a major world conflict under the auspices of a single federal district court.”

The political question doctrine has also applied in cases brought against nongovernment defendants if the conduct of those defendants implicates U.S. foreign policy decisions. In Corrie, the Ninth Circuit found that the “decisive factor” in the political question doctrine analysis was that “Caterpillar’s sales to Israel were paid for by the United States.” The court ruled that it could not “intrude into our government’s decision to grant military assistance to Israel, even indirectly by deciding this challenge to a defense contractor’s sales.” In Saldana v. Occidental Petroleum Corporation, the family members of Colombian union leaders killed by the 18th Brigade of the Colombian National Army sued Occidental, which funded the 18th Brigade to protect an oil pipeline. While Occidental provided $6.3 million to the 18th Brigade, the U.S. government provided $99 million. Therefore, the Ninth Circuit concluded that “this case necessarily requires the judicial branch to question the political branches’ decision to provide extensive military aid to Colombia and the [Colombian National Army].”

The recent decision in Defense for Children International-Palestine v. Biden found no distinction between legal restrictions on arms transfers and discretionary policy choices for the purposes of the political question doctrine. The plaintiffs argued that the political question doctrine does not apply to disputes about noncompliance with legal duties, extending only to the executive branch’s discretionary policy decisions. The Ninth Circuit rejected that argument, finding that “application of the political question doctrine turns not merely on the formal duty-discretion distinction that plaintiffs posit.” The court cited Baker’s holding that determining whether the political question doctrine applies requires “discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in the specific case, and of the possible consequences of judicial action.” In other words, the court concluded that reliance on binding legal standards is not sufficient to overcome dismissal under the political question doctrine.

So far, courts have applied the political question doctrine to a wide range of cases involving arms transfers and security assistance. The judiciary has not indicated any narrowing of that application to date.

Private Right of Action

Not all federal law confers the right to sue. To sue to enforce a statute, a private plaintiff must have a private right of action. In litigation to enforce arms transfer and security assistance restrictions, plaintiffs seek to compel government action—namely to stop providing arms or military aid to another country. For a private citizen to enforce those statutes, they need a private right of action.The issue of whether a plaintiff has a private right of action is distinct from whether they have standing. A plaintiff needs standing for a court to hear their claims at all, but they need a private right of action to sue under a specific law.

Courts have sometimes found that statutes restricting arms transfers and security assistance lack a private right of action. In Clark, the court found that Section 502B of the Foreign Assistance Act “does not create standing for any taxpayer or private party to sue for its enforcement. It is a section clearly enacted to effect the relationship between the Congress and the President over disbursing foreign aid funds in light of an official policy of concern for human rights.” Similarly, in Abusharar, the U.S. District Court for the Central District of California found “no private right of action under the Leahy amendment,” observing that “the statute is directed specifically to the executive branch.”

In other instances, plaintiffs have relied on the Administrative Procedure Act (APA) for their private right of action. Even when a specific statute does not explicitly create a private right of action, plaintiffs can use the APA’s judicial review provisions to challenge agency actions that allegedly violate that statute. Under the APA, a court may “hold unlawful and set aside agency action, findings, and conclusions” that it finds to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The plaintiffs in several cases discussed here cited the APA in their suits alongside other statutes restricting security assistance.

Reliance on the APA appears to have provided a sufficient private right of action. However, because of the justiciability issues discussed above, a court has never reached the question of whether an agency action ought to be held unlawful and set aside under the APA.

***

Courts have historically dismissed cases involving alleged violations of arms transfer and security assistance restriction laws on procedural grounds. The justiciability doctrines—particularly standing and the political question doctrine—have been the most common grounds for dismissal. In some cases, different plaintiffs or stronger facts may overcome barriers stemming from the standing doctrine’s injury in fact requirement. But the causation and redressability elements pose problems that may be inherent in litigation that seeks to enforce statutory restrictions on arms transfers or security assistance. If a plaintiff could formulate sufficiently direct chains of reasoning to establish standing, they would still be unlikely to avoid dismissal under the political question doctrine.

Activists and plaintiffs may be disappointed to find that, based on available case law, litigation is unlikely to compel the enforcement of arms transfer restrictions under U.S. law—whether for Israel or any other country.

– John Ramming Chappell is a joint J.D. and M.S. in Foreign Service candidate at Georgetown University, where he focuses on human rights, national security law, and U.S. foreign policy. Published courtesy of Lawfare.