U.S. Intelligence Sharing With Israel Deserves the Same Scrutiny as Arms Transfers

U.S. arms transfers to Israel have come under fire since Oct. 7. But another crucial aspect of U.S. security assistance to Israel—intelligence sharing—has mostly escaped criticism, despite its significance to Israel’s ability to wage war.

Palestinians inspect the ruins of Watan Tower destroyed in Israeli airstrikes in Gaza city, on October 8, 2023

Once a cornerstone of U.S. foreign policy, U.S. arms transfers to Israel are under the gun. As the civilian death toll in Gaza climbs, scrutiny over Israel’s weapons of U.S. origin has climbed with it. Israel is the largest historical recipient of U.S. security aid, having received roughly $3 billion on average for the past 50 years, and the Biden administration announced it would ask Congress for “an unprecedented support package for Israel’s defense,” totaling $14.3 billion following Hamas’s Oct. 7 attack on Israel.

As long as bombs continue to fall on Gaza, and the Biden administration continues to sidestep legal and policy restrictions on arms sales to Israel, such scrutiny on weapons transfers makes sense. But another crucial aspect of U.S. security assistance to Israel—intelligence sharing—has continued largely without the same scrutiny, despite its significance to Israel’s ability to wage war. For anyone concerned with the humanitarian catastrophe unfolding in Gaza, it’s important to look not only at the bombs but also at the intelligence that helps Israel direct where the bombs are headed. 

U.S.-Israel intelligence sharing could “raise heightened concerns” compared to arms transfers, Brian Finucane, senior adviser in the U.S. program at the International Crisis Group, told me. “It’s one thing to provide arms that can be used for a variety of purposes and a variety of targets,” he continued. “But if you’re providing actionable intelligence on a specific individual, and that individual happens to be civilian? That is much more ripe for potential abuse, and the nexus between U.S. support and potential law of war violations is much tighter.” 

In this case, actionable intelligence includes the necessary information needed to carry out a lethal strike against an individual. And the nexus between U.S. support and potential law of war violations—in other words, potential legal culpability—may be much tighter in this case.  While most weapons can conceivably be used for a variety of purposes, including defensive ones, it should be reasonably anticipated that actionable intelligence—such as the exact location of an individual whom you know is likely to be a target of a subsequent military operation—is far more likely to be used for (potentially unlawful) lethal targeting.

The legal issues at play are still difficult to determine, because the full extent and precise nature of U.S.-Israel intelligence sharing is not yet clear, in large part due to the nature of intelligence. Much of its value derives from its secrecy. But it’s safe to say the United States and Israel have enjoyed a long history of intelligence sharing, as part of a broader relationship of security cooperation since Israel’s founding in 1948. 

That’s not to say the relationship has remained static over the past 75 years—each country has relied on the other at different points, on different issues throughout this shared history. After Sept. 11, for example, the U.S. intelligence community shifted most of its resources to hunting down leaders of al-Qaeda (and then the Islamic State), outsourcing intelligence gathering on Hamas and other Palestinian resistance groups to Israel on the strength of its intelligence services’ famed reputation (although that reputation certainly took a hit after the perceived intelligence failures of Oct. 7). Though difficult to say for certain, it’s likely that before Oct. 7, the nature of the intelligence the U.S. shared with Israel was more strategic than tactical, mainly because of the capable Israeli services, Shin Bet and Mossad. Strategic intelligence might assess the leadership intentions of Hamas and Iran, and tactical intelligence might include the whereabouts and movements of those same leaders. In general, strategic intelligence is less likely to be actionable than tactical intelligence. 

Trust between the U.S. and Israeli intelligence communities has also waxed and waned in recent years. Under the Trump administration, Israel and U.S. intelligence services “operated in virtual lock step,” according to the New York Times, only to fall out of step after President Biden promised to restore the Iran nuclear agreement—though the narrative is likely much more complicated. Wherever the two intelligence services stood before Hamas attacked, the events of Oct. 7 have given occasion to bring the old intelligence allies together again. Though the Biden administration has remained relatively tight-lipped about the nature—whether strategic or tactical—and scale of intelligence sharing with Israel, evidence has come to light suggesting an increase in such cooperation. 

Two days after the Hamas attack, Biden issued a statement in which he promised his administration was “sharing intelligence and deploying experts … to consult and advise Israeli counterparts on hostage recovery efforts,” especially in light of the as yet to be confirmed evidence that American citizens numbered among the hostages. On Nov. 2, the New York Times reported that the U.S. military had been flying surveillance drones over Gaza, an unprecedented move according to Defense Department officials, “indicating that the U.S. is more involved than previously known.” At least six of the drones involved were MQ-9 aircraft, the Air Force’s first “hunter-killer” drones. The U.S. uses MQ-9 drones primarily on surveillance missions, though they have been used to conduct airstrikes and collect intelligence in Iraq, Afghanistan, and Syria, according to the Times. In Gaza, two Pentagon officials told the Times that “the goal was to assist in locating hostages, monitor for signs of life and pass potential leads to the Israel Defense Forces.” 

As former senior intelligence official Marc Polymeropoulos points out in the Cipher Brief, other U.S. intelligence activities suggest greater cooperation between the American and Israeli intelligence services. For example, the U.S. collected then declassified signals intelligence claiming that Palestinian militants operated out of hospitals in Gaza, including an assessment that members of Hamas and the Palestinian Islamic Jihad operated a “command and control node” under al-Shifa Hospital in Gaza City. And early last month, CIA Director William Burns visited Israel for discussions with Israeli leaders and intelligence officials. One official told the Times that Burns was “looking to expand its intelligence sharing with Israel” and that his trip was meant “to reinforce the American commitment to intelligence cooperation with partners in the region.” 

However, as Finucane told me, it’s “not clear whether the intelligence gathering the U.S. is engaged in is solely for the purpose of attempting to locate hostages, which seems unlikely given its close relationship with Israel, or if the U.S. is sharing actual intelligence with Israel.” 

On Dec. 3, Chair of the House Intelligence Committee Mike Turner (R-Ohio) offered the most detail to date with regard to U.S. intelligence sharing with Israel. On Face the Nation, Turner said that the “United States is assisting in the location of Hamas leadership as Israel moves to eliminate the threat of Hamas” and that the U.S. “intelligence apparatus is working closely with Israel to try to fill some of those gaps that they clearly have.” The relative opacity with which the administration has shared information on intelligence sharing stands in contrast to past conflicts, namely the Saudi-led intervention in Yemen, during which the U.S. was more forthcoming about intelligence sharing with the Saudis under the Obama and Trump administrations. 

Much like arms transfers, the U.S. government must undergo a legal review before sharing intelligence with another country, even one with which the U.S. maintains close relations—at least in theory. All of the so-called tear lines, or intelligence shared with partners, are required to undergo an internal legal review to ensure that the government is acting within its authorities. Of particular relevance right now is the first step in that process: The government must make a legal determination as to whether the intelligence community has the authority for legal targeting—in other words, whether the intelligence provides enough information to ensure that it would be capable of conducting a legal strike—before it shares intelligence with a partner reasonably expected to conduct legal targeting with that intelligence. Otherwise, it can’t be shared. 

Given the widespread criticism of Israel’s targeting practices during the current conflict in Gaza, the U.S. assessment of legality would seem especially significant. But it is not yet clear whether the intelligence community has recalibrated based on reports of Israeli human rights and other violations because they are waiting for a policy signal from the White House. The Biden administration has reportedly put a lot of pressure on the Israelis in private conversations to scale back operations and stop indiscriminate bombing, though Biden recently said the latter in public at a Washington fundraiser this week. But it hasn’t yet translated into an official policy change about how much intelligence to share with Israel. The same goes for arms shipments. 

As for human rights concerns and law of armed conflict issues, intelligence sharing is usually premised on some set of assurances about how the intelligence will be used, handled, and disseminated. There are underlying assurances between the U.S. and Israel made in intelligence sharing agreements from many years ago, in addition to ongoing conversations among intelligence professionals—but no one Lawfare spoke with for this article was aware of any new assurances to date.

This tension—the reliance on old assurances and legal reviews in the face of credible reports of human rights and other violations—seemed to play out in real time on Face the Nation, when host Margaret Brennan pressed Turner on the standards that should apply to intelligence shared with Israel: 

Brennan: You know, when it comes to what the United States is doing for our own standards for our own government, we have to have a nearly certain standard when it comes to counter terrorism, lethal operations, positive ID of the target, no civilian casualties. Should we hold our allies who we provide with weapons and intelligence to that exact same standard?

Turner: Well, I can tell you that, that we are being selective as to the information that’s being provided. It’s one thing to be able to look to try to identify a specific individual, and provide information as to their location and operations, and actually directing an operation. I mean, Director Burns has been very clear that we are not just providing direct access to our intelligence, and that certainly gives us the ability to have caution.

Brennan: Is Israel[,] though, operating on that intelligence to the level to the standard, that they should, that the United States holds itself to? Because we just heard from the defense secretary and the Vice President, that it certainly sounds [like] the U.S. assessment is they’re not.

Turner: With respect to use of U.S. intelligence, I can tell you that that’s certainly how the United States is operating and holding them to that standard. Now, broadly, as you’ve reported, the United States is very concerned to the extent that Israel is not doing enough to protect civilians. And certainly the issue goes even broader to the issue of humanitarian aid being provided to the Palestinians who are equally prisoners of Hamas.

Not everyone in government feels that security assistance to Israel—be it arms transfers or intelligence sharing—should continue unconditionally. Last week, over a dozen Senate Democrats proposed an amendment to impose conditions on Israeli military aid, though the language of the bill did not single out Israel specifically. The proposed legislation would direct the president “to report to Congress within 30 days whether countries receiving military aid through this supplemental are ‘fully cooperating with U.S. efforts and U.S.-supported international efforts to provide humanitarian assistance to civilians.’” And other provisions would “call for the president to report to Congress that any country using U.S.-funded military equipment is doing so in accordance with ‘their intended purposes and U.S. end-use monitoring programs; international humanitarian law, the law of armed conflict, and U.S. law; the President’s 2023 Conventional Arms Transfer (CAT) Policy and the Defense Department’s Civilian Harm Mitigation and Response Action Plan (CHMR-AP).’”

Efforts to impose conditions on intelligence sharing, by contrast, have not yet reached the stage of proposed legislation. Politico reports that some congressional Democrats are “considering legislation to curtail intelligence sharing with Israel,” though these considerations have not yet translated to ink on paper. This may be because the Biden administration would likely raise significant constitutional objections to such a move if it went anywhere. “The executive branch has long maintained that the president not only has inherent constitutional authority to regulate and control classified information, but also that such authority is preclusive,” Finucane told me. “That is, that authority cannot be intruded upon by Congress.” These objections play out constantly in scenarios like the NDAA negotiations, in which Congress might request reports on certain issues, requiring information to be provided in unclassified form. To which the executive branch would maintain that it retains constitutional authority over such information and, therefore, refuses to follow such a provision.

Anyone concerned with the current speed and scale of U.S. arms transfers to Israel, whether from a human rights, international law, or U.S. culpability point of view, should also pay attention to other nonmaterial aspects of security assistance—intelligence sharing. As the civilian death toll in Gaza mounts, and the housing and infrastructure left standing dwindles, it’s important to scrutinize not just the weapons used to carry out the devastation but also the intelligence used to direct those weapons. 

– Tyler McBrien is the managing editor of Lawfare. He previously worked as an editor with the Council on Foreign Relations and a Princeton in Africa Fellow with Equal Education in South Africa. Published courtesy of Lawfare

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