Since Hamas’ brutal attack on Israel on October 7, 2023, the United States has provided a significant number of arms to Israel to support its war in Gaza. Public reporting indicates that U.S. military equipment transferred includes bombs, precision guidance kits, missiles, artillery shells, ammunition, and other equipment. Although there have reportedly been “near daily” deliveries of U.S. weapons to Israel and a “tiger team” established to expedite transfers, the Biden administration has only publicly acknowledged two major arms sales.
Israel’s campaign against Hamas in Gaza has killed more than 23,000 Palestinians. Journalists and human rights organizations have identified the use of some U.S.-origin weapons in civilian harm incidents, some of which may be violations of international humanitarian law, in the last three months. The Washington Post reported that white phosphorus munitions used by Israel in civilian areas in southern Lebanon–in one instance injuring nine civilians–originated in the United States. And an Amnesty International report described how Israel used U.S.-made joint direct attack munitions (JDAMs) in two airstrikes that resulted in the deaths of 43 civilians.
For the most part, the public remains in the dark on exactly what and how much equipment has been transferred by the United States to Israel since October 7; without further leaks or more transparency from the administration it may remain impossible to know. What we do know is that there are several ways the U.S. government can transfer new arms to Israel, and we know that one resource it is tapping into is the “War Reserve Stockpile Allies – Israel” (WRSA-I), a little-understood and opaque store of weapons that the Biden administration has asked Congress to make more flexible.
WRSA-I Explained
WRSA-I is a U.S. Department of Defense (DoD) stockpile located in Israel, and the equipment stored in it is available for use by DoD or transfer to a foreign country. Although transfers from the stockpile are generally understood to be intended for times of war or emergency, there is no specific legal requirement to that effect. There is no unclassified, publicly available itemization of what is in the stockpile, which is reported to consist of multiple warehouses. When adding equipment to WRSA-I, DoD can consider potential partner requirements, although DoD does not procure new equipment to maintain the stockpile, instead replenishing it from existing stocks.
Israel benefits from the U.S. positioning the stockpile in its territory because, in cases of emergencies, it cuts down on the normal time required for U.S. procurement and delivery processes. Stocks remain under DoD title until transferred and Israel pays for the maintenance of WRSA-I storage facilities and for the transportation of defense articles to and from the stock. Whenever defense articles are transferred, they must be paid for by the recipient country or U.S. appropriations.
The stockpile has evolved over the last several decades. First, in the 1980s, Israel invited the United States to store weapons on its territory for U.S. use in wartime and the two countries entered into a memorandum of understanding that governed the prepositioned stocks. Later, during the George H.W. Bush administration, Congress amended the statute already authorizing the stockpiling of U.S. defense articles for potential transfer to foreign forces in order to allow for stockpiling in countries that are “major non-NATO allies,” e.g., Israel (previously, such stockpiles could only be located in NATO member states). Thus WRSA-I gained a foundation in U.S. law.
Public reporting indicates that Israel has received equipment from WRSA-I in at least two past conflicts, but U.S. officials’ statements indicate transfers have likely been more frequent. The first publicly reported transfer dates back to the 2006 Lebanon war, when DoD–under President George W. Bush–transferred U.S. precision guided munitions from WRSA-I to Israel. During the 2014 Gaza war, the Pentagon disclosed that it had transferred 120 mm tank rounds and 40 mm illumination rounds out of the stock to Israel, describing the transfer as “routine” and noting the rounds “were readily available and provided as they have been on numerous other occasions” (emphasis added). The transfer was completed under a $3 million foreign military sale to Israel, funded by U.S. grant assistance. However, the White House was unaware that the transfer had even occurred, prompting the Obama administration to from then on require relevant agencies to consult with the White House and State Department before approving any requests from Israel for additional arms.
In early 2023, the United States acknowledged the transfer of 300,000 155mm shells out of WRSA-I destined for Ukraine–a transfer that initially caused concern for Israel given the careful line it walks in trying to maintain cordial relations with Russia–and promised Israel it would replenish those stocks.
WRSA-I Legal Framework
WRSA-I’s legal framework has two parts: One authority, Section 514 of the Foreign Assistance Act (FAA), governs stockpiling defense articles in foreign countries (e.g., the limitations on amount and location) while other statutes allow for the transfer of items from such stockpiles to foreign governments.
Section 514 of the FAA (22 USC 2321h) authorizes DoD to stock U.S. defense articles in, and intended for future use by, certain foreign countries, most of which are NATO member states or major non-NATO allies. Currently, the United States only maintains such stockpiles in Israel and South Korea. The fact that munitions in these stockpiles are intended for use by a foreign country distinguishes them from other stores of U.S. weapons overseas.
Congress imposed some restrictions on these stocks. Section 514 limits the value of defense article deposits into WRSA-I to $200 million annually. According to the Congressional Research Service, the current value of items in WRSA-I could be as high as $4.4 billion (not adjusted for inflation). The law requires reporting to Congress when the President designates a country for the establishment of a new stockpile, but, outside of separate transfer authority reporting requirements, there is no congressional reporting requirement in Section 514 for all defense articles that are added to or transferred out of an existing stockpile.
While Section 514 provides the framework for overseas DoD stocks, Section 514 does not in itself authorize the transfer of weapons to foreign countries. The law requires that transfers from stockpiles like WRSA-I occur under independent transfer authorities. Various authorities for weapons transfers are available in the FAA and Arms Export Control Act (AECA), both codified in Title 22 of the U.S. Code. Title 10 of the U.S. Code also includes some potential transfer authorities, and Congress has created some Israel-specific transfer authorities in subsequent defense appropriation and authorization acts.
Foreign Military Sales
Foreign Military Sales (FMS), governed by the AECA, offer one of the most common arms transfer mechanisms. The Israeli government regularly uses its $3.3 billion in annual Foreign Military Financing (FMF) granted from the United States to fund FMS.
The AECA requires congressional notification of FMS cases that meet a specified value threshold. For Israel, the value threshold is $25 million for major defense equipment and higher for other types of sales. During the congressional notification period, Congress has 15 days to review these proposed sales. However, the President (and as delegated, the Secretary of State) can waive the congressional review period if he or she determines that an emergency exists which requires a sale to proceed without delay in the national security interests of the United States.
Since early October, the State Department has delivered only two such congressional notifications despite the high rate of deliveries of U.S. weapons to Israel. For both of these FMS cases the Secretary of State determined that an emergency existed, allowing the administration to bypass the typically-required 15-day congressional review period. The transfers drew criticism from congressional Democrats for undermining legislative oversight and avoiding transparency.
This is an unusual move by the administration–out of 85 congressionally notified FMS cases in 2023, these were the only two cases for which the Secretary of State invoked the emergency exception. The first case, notified on December 8 for nearly 14,000 120mm tank cartridges, came just days after Reuters reported that Israeli forces killed two of its reporters (while they were filming across the border in Lebanon) with the same kind of munitions. The second case for 155mm artillery shells, notified on December 29, followed a letter from dozens of organizations to Secretary of Defense Lloyd Austin urging DoD to refrain from transferring such weapons due to civilian harm and international humanitarian law risks. Whether these two FMS cases were slated for transfer from WRSA-I or from another source remains unclear.
FMS cases that do not meet the AECA’s value thresholds require no notification to Congress. Because weapons in WRSA-I are pre-positioned in the country, there is an especially high risk of breaking up transfers into separate cases such that they do not meet the congressional reporting threshold, even though the cumulative value of equipment transferred in a short period of time may exceed the threshold. Our conversations with congressional and executive branch officials indicate that a majority of transfers to Israel since October 7 have occurred as below-threshold Foreign Military Sales.
“Presidential Drawdown Authority,” Section 506 of the Foreign Assistance Act
Section 506 of the Foreign Assistance Act (22 USC 2318), referred to colloquially as the “presidential drawdown authority,” offers another option the U.S. government could use to transfer weapons from WRSA-I to Israel. In accordance with Section 506, the President can authorize drawdowns of defense articles or services—meaning the transfer of existing U.S. materiel or capabilities such as airlift—pursuant to a determination that an “unforeseen emergency exists which requires immediate military assistance” to the recipient and the emergency requirement cannot be met under any other law. Such drawdowns have been a common pathway for the provision of security assistance to Ukraine since Russia’s full-scale invasion in 2022.
Presidential drawdowns come with several limitations, though Congress has acted in the last two years to provide more flexibility. Typically, the President cannot transfer more than $100 million in defense articles or services in a fiscal year under Section 506, but in order to accommodate rushing arms to Ukraine, Congress raised that cap to $11 billion in fiscal year 2022 and up to $14.5 billion for fiscal year 2023. Section 506 also requires prior notification to Congress before the drawdown is given effect and detailed reporting on all defense articles and services provided under the authority.
The President has not notified Congress of his use of the drawdown authority for Israel since October 7, and our conversations with executive branch officials indicate that there have not been presidential drawdowns from WRSA-I for Israel since then.
Title 10, U.S. Code
While in theory Title 10 of the U.S. Code–which governs DoD activities–offers some authorities that could be used to transfer defense articles to Israel from WRSA-I, they are not well-suited to hastily moving desired equipment during emergencies. For example, while Section 333 authorizes the Secretary of Defense to “provide training and equipment” to the national security forces of a foreign country for the purpose of “building the capacity of such forces” to conduct certain operations, as a policy matter, the extensive bureaucratic processes for Section 333 programs make it a little desired authority for WRSA-I transfers.
Under other authorities, like Section 331 and other Title 10 sections governing Acquisition and Cross-Servicing Agreements (ACSAs), the Secretary of Defense can provide logistics support, supplies and services (LSSS) to certain countries. However, while LSSS includes ammunition, it excludes significant military equipment on the U.S. Munitions List.
Section 1275 of the National Defense Authorization Act for Fiscal Year 2021
In an attempt to make precision guided munitions (PGMs) more available to Israel, Congress passed Section 1275 of the National Defense Authorization Act (NDAA) for Fiscal Year 2021 to authorize transfer of PGMs to Israel out of reserve stocks, including WRSA-I. Since October 7, Israel has employed thousands of PGMs in Gaza.
What is most striking about Section 1275 is that it waives Section 514 fiscal year limits on DoD additions of PGMs to reserve stocks, like WRSA-I, and does not include any value- or quantity-based fiscal year limitations on PGM transfers to Israel. That means PGMs are effectively exempt from the annual $200 million cap on contributions of items to WRSA-I. At the same time, Section 1275 does not authorize the executive branch to simply give away unlimited PGMs to Israel. Section 1275 requires transfers to be consistent with all requirements in the FAA and AECA (e.g., if PGMs are transferred under the AECA then the fair market value must be paid or if transferred under the FAA, the U.S. government must use the presidential drawdown or other authority, which carry specific limitations). Although originally scheduled to sunset on January 1, 2024, Section 1255 of the NDAA for Fiscal Year 2024 extends the authority until 2027.
A State Department official told watchdog group Women for Weapons Trade Transparency that the executive branch has relied on Section 1275 since October 7 to expedite the transfer of PGMs to Israel.
Section 12001 of the Defense Appropriations Act for Fiscal Year 2005
The Defense Appropriations Act for Fiscal Year 2005 established another transfer authority dealing with items in WRSA-I. Section 12001 of the Act, as amended, authorizes the President to transfer obsolete or surplus “armor, artillery, automatic weapons ammunition, missiles” and other obsolete or surplus munitions in WRSA-I for a fair market value exchange. Meaning, Israel does not have to pay in cash but can provide services or other items of value. No later than thirty days prior to a transfer under Section 12001, the President must notify Congress of the items to be transferred and concessions to be received. Thus far we know, from talking to U.S. officials, the Biden administration has not used Section 12001 for transferring stock from WRSA-I since October 7.
The NDAA for Fiscal Year 2024, signed into law on December 22, 2023, includes amendments affecting WRSA-I. Section 1255 of the law extends the above discussed Sections 1275 and Section 12001 until January 1, 2027. The new NDAA also requires the Secretary of Defense to provide assessments regarding Israel’s need for and ability to access munitions, including precision guided munitions from WRSA-I.
WRSA-I Policy Guidance
Publicly available policy guidance for WRSA-I is all but non-existent. Up until September 2021 U.S. European Command oversaw WRSA-I, after which oversight was transferred to U.S. Central Command. The U.S. and Israel have a bilateral agreement governing “storage, maintenance, in- country transit, and other WRSA-related costs,” but it is classified. In fact, most of the implementing policy guidance, “the real sausage making,” as one former U.S. official put it, is classified. One troubling aspect found in public reporting on transfer procedures concerned DoD’s movement of equipment to Ukraine out of WRSA-I in early 2023. It appeared to be a request from the U.S. government with final approval authority with the prime minister of Israel. Such a policy process indicates Israel maintains a significant degree of control over the stockpile even though it is DoD-owned.
Since the October 7 attacks, some officials have described an expedited policy process to transfer arms to Israel while insisting the government continues to comply with the law. That said, it is unclear whether the same policy controls implemented by the Obama administration after the above-referenced incident (i.e., consultation with the White House and the State Department before approving Israel’s requests for arms) are still in place. Those policies could have been changed under President Trump, and if they weren’t, it is possible that they have been altered under President Biden given the “tiger team” he has established to expedite transfers of arms to Israel. Some former officials have described the Biden administration bypassing its own policy processes to quickly transfer arms to Israel.
Biden’s Request for Flexibility and Congress’s Proposed Amendments
On Oct. 20, 2023, President Biden requested emergency supplemental funding from Congress for security assistance to both Israel and Ukraine. The Israel-specific request contains proposed amendments that would reduce restrictions on transfers to and from WRSA-I. If Congress enacted the President’s proposed legislative changes, DoD could put an unlimited amount of weapons into WRSA-I and provide them to Israel at little to no cost. Here are some of the key proposed changes:
- Section 514: Request to remove the cap on the value of defense articles that DoD can move to WRSA-I in fiscal year 2024 (currently set at $200 million), allowing DoD to put an unlimited amount of stock in WRSA-I.
- Section 12001: Requests to: (1) remove restrictions that currently limit transfers under Section 12001 to certain categories of defense articles in the stockpile (e.g., obsolete or surplus stock), by allowing transfers of any weapon in WRSA-I; (2) allow concessions provided by Israel for defense articles transferred to be “in an amount to be determined by the Secretary of Defense,” which could allow for transfers without substantial compensation; and (3) change reporting requirements for transfers under Section 12001 to “as far in advance of such transfer as is practicable” during “extraordinary circumstances impacting the national security of the United States.”
- Section 506: Request to increase the fiscal year cap for presidential drawdowns from $100 million to $7 billion.
Taken together, the amendments in the supplemental request would remove restrictions on both the movement of U.S. weapons to the WRSA-I stockpile and the transfer of weapons in the stockpile to Israel, all the while minimizing oversight from Congress and thereby allowing for more U.S. weapons to go to Israel with fewer limitations and less public scrutiny.
The future of the supplemental request remains unclear. On Nov. 2, 2023, the House passed an Israel-only bill that was dead on arrival in the Senate, and in early December the Senate failed to pass its version of the bill. Each version’s provisions related to WRSA-I hewed closely to the President’s request, although the House included a monthly reporting requirement on security assistance provided to Israel since the October 7 attacks.
Essential Changes for Transparency and Oversight of WRSA-I
The speed with which transfers from WRSA-I occur, the fact that they often occur in the context of war, and the relative dearth of oversight render transparency regarding the stockpile particularly important. Lawmakers should demand more from the executive branch.
First, similar to Ukraine, Congress should require that DoD and the State Department develop a unified reporting process for all weapons transfers to Israel, regardless of the transfer authority used, specifying when weapons are moved out of WRSA-I. As Elias Yousif recommends, this reporting should be made available in a public fact sheet, and such a fact sheet should “include details on the authorities invoked for the provision of assistance as well as the type and quantity of arms provided with enough specificity to enable public research and assessments.” Congress should also require the executive branch to specify in congressional notifications for FMS cases when defense articles are transferred from WRSA-I.
Second, Congress should mandate comprehensive reporting on all equipment transferred into WRSA-I each fiscal year. Section 514 currently imposes a cap on the total value of defense articles transferred into the stockpile, but does not explicitly require accounting to the relevant congressional committees of what is available in the stockpile to Israel and other partners and allies.
Finally, Congress should not remove restrictions on transfers to and from WRSA-I as requested by President Biden. WRSA-I is an exceptional mechanism that already affords Israel the ability to receive weapons during wartime faster than all other countries in the world except for one. Israel enjoys the privileges of high notification thresholds and short congressional review periods. U.S. law already requires that arms transfers to other countries do not undermine Israel’s qualitative military edge. And in a bipartisan fashion, executive branch officials have refused to condition any security assistance to Israel.
No other country in the world enjoys such a combination of privileges, let alone a country that has often faced allegations of violating international human rights and humanitarian law. With the potential of a supplemental this year comes the chance for Congress to ensure more oversight of WRSA-I, a stock with too little transparency that carries important significance during wartime. In addition to fueling a war that has in the span of a few months killed tens of thousands of people, the amendments offered by the White House would most certainly take oversight and transparency several steps backward. We encourage Congress to chart its own path.