According the US Department of Justice, it is the US president’s prerogative alone whether Israel’s nuclear weapons program triggers Arms Export Control Act laws governing US aid to foreign nuclear weapons states.
In a 52-page motion to dismiss, (PDF) Justice Department Trial Attorney Michell R. Bennett outlined the defendants’ legal argument for why US citizens cannot challenge massive foreign assistance packages to Israel that appear to violate the Symington & Glenn Amendments, originally added to the 1961 Foreign Assistance Act in the mid-1970s. The intention of the amendments, according to one of the authors, Senator Stuart Symington, was to preclude US taxpayer subsidization of nuclear states that refused to join the Nuclear Non-Proliferation Treaty. "If you wish to take the dangerous and costly steps necessary to achieve a nuclear weapons option, you cannot expect the United States to help underwrite that effort indirectly or directly."
However, according to the Justice Department, whether a particular foreign country has a nuclear program or violated the law is not a matter to be determined by facts long in the public domain, leaked statements by officials, or the limited amount of damning government records that have dribbled out, some extracted by expensive lawsuits:
"The statute, therefore, makes the termination of US foreign assistance contingent, in the first instance, upon a determination by the President that a country has engaged in conduct specified in the statute…The statute permits but does not require that the President make such a determination. Moreover, the statute does not limit the President’s discretion to decide whether, how, and when to make such a determination." (PDF pages 15-16)
Per official public figures, on an inflation-adjusted basis the US has provided more than a quarter-trillion dollars to Israel since the country was established, making the it the top recipient of US foreign aid. The aid, which is largely the result of Israel lobbying rather than pursuit of any US national interest, is particularly costly in terms of US employment. It provides only 2,080 jobs per billion spent, vs 5,750 per billion in potential infrastructure-related jobs or simply not collecting taxes for unlawful ends, which would have a bigger overall impact on the economy. But citizens concerned about Israel’s development and proliferation of nuclear weapons technology, and other bloodier violations of US and international law, have no standing to sue because the amendments did not specifically allow for judicial review, according to the US Department of Justice:
"On the whole, these waiver provisions recognize that, if and when the President first determines that a country has engaged in conduct specified in the statute, it is the province of the President and Congress to determine whether the United States should continue providing foreign assistance to that country. No provision of § 2799aa-1 authorizes or contemplates judicial review of determinations made by the President or exercises of the waiver authority by the President or Congress."
Indeed, according to Bennett, federal judges should just stay out of the matter entirely because Congress, which passed but has not yet rescinded Symington & Glenn, and the President, who once told the late Helen Thomas he did not want to "speculate" about whether Israel has nukes, keep passing and signing into law massive taxpayer-funded aid programs.
The lawsuit, filed by IRmep’s director in August, 2016 and amended in November (PDF) claims that the Obama administration has unlawfully implemented a 2012 agency-wide gag order blocking public release of information about Israel’s nuclear weapons and subverting the Freedom of Information Act in order to seamlessly continue presidential violations of Symington & Glenn that have been ongoing since 1978. On November 28, the Plaintiff filed a motion for a preliminary injunction (PDF) to freeze both enforcement of the gag order and billions in pending US foreign aid payments to Israel.
It remains to be seen whether federal judge Tanya Chutkan, who has witnessed firsthand the great—and formerly inexplicable—lengths to which government agencies go to fight release of even aged, unclassified information about Israel’s expansive nuclear weapons program, will be impressed with such Justice Department arguments.
Grant F. Smith is the director of the Institute for Research: Middle Eastern Policy in Washington and the author of the 2016 book, Big Israel: How Israel’s Lobby moves America. On August 8, 2016 he filed a lawsuit in federal court to block US foreign aid to Israel and claw back aid illegally delivered since 1976.