War Crimes Risk Grows for U.S. Over Saudi Strikes in Yemen

Spanish judicial officials in 2009 pursued charges related to the torture of prisoners in Guantánamo Bay, Cuba, against six officials in the George W. Bush administration, citing universal jurisdiction, but a higher court dismissed the case. This March, the International Criminal Court ruled that its chief prosecutor could open an investigation into the actions of American forces in the Afghanistan war — the first time the court has authorized a case against the United States. The Trump administration this month imposed sanctions on that prosecutor and another of the court’s lawyers, a sign of how seriously the administration takes the possibility of prosecution.

Yet rather than taking meaningful steps to address the potential legal issues raised by the Yemen war, State Department leaders have gone to great lengths to conceal them, records and interviews show.

In 2016, when a State Department lawyer determined that American officials could plausibly be charged with war crimes, the department’s top lawyers decided not to send the analysis to the secretary of state’s office, though it was shared with some agency officials.

“If I were in the State Department, I would be freaking out about my potential for liability,” said Oona Hathaway, a Yale Law School professor and a Defense Department lawyer in the Obama administration. “I think anyone who’s involved in this program should get themselves a lawyer. It’s very dangerous territory the U.S. is in, continuing to provide support given the number of civilians who have been killed.”

The State Department declined to discuss its decision-making process but said in a statement that it had put in place a strategy to lessen civilian casualties before the last major arms sale to the Saudi-led coalition, in May 2019. It added that the department had “continued to work tirelessly” on reducing civilian harm in Yemen and elsewhere, citing redesigned policies, expanded analyses and new training for partners, which the Saudis and Emiratis were “eagerly accepting.”

The Obama-era decision not to elevate the troubling legal analysis was made as the administration was already taking a tougher line on civilian deaths in Yemen. In December 2016, President Barack Obama blocked a shipment of precision-guided bombs he had agreed to sell to the Saudis.

Within months, Mr. Trump delivered the bombs Mr. Obama had halted. Then his administration sought to advance still more sales: $8.1 billion in weapons and equipment in 22 batches, including $3.8 billion in precision-guided bombs and bomb parts made by Raytheon Company, to Saudi Arabia and the United Arab Emirates.

Lawmakers blocked shipments for nearly two years, until Secretary of State Mike Pompeo instructed his subordinates to circumvent Congress. They did so by declaring an emergency over Iran, which prompted the inspector general review. That investigation not only documented the longstanding legal worries but also created a critical report that could itself increase the legal risks, scholars said.

“The findings could be used as evidence in the future against U.S. officials or the U.S. government,” said Ryan Goodman, a New York University law professor who was a Defense Department lawyer in the Obama administration.

With the civilian death toll rising in Yemen, the American role in the war has become a significant political issue.

Joseph R. Biden Jr., the Democratic presidential candidate who was vice president when the conflict began, says he would end U.S. support for the war. By contrast, Mr. Trump is doubling down on arms sales and boasting of revenue from the Saudis.

“I have a very good relationship with them,” Mr. Trump said during an interview in February. “They buy billions and billions and billions of dollars of product from us. They buy tens of billions of dollars of military equipment.”

Under Mr. Obama, top State Department officials could have confronted questions of American complicity in crimes carried out by the Saudi-led coalition in Yemen. Instead, they set the matter aside.

But it quickly became clear that the Saudis and their partners at the time, including the Emiratis, were either using the bombs negligently or deliberately aiming them at civilians. In the first 18 months of fighting, human rights groups linked American bombs to attacks on homes, apartment buildings, factories, warehouses, a cultural center, an agricultural complex, a primary school and other nonmilitary sites.

As concerns over such strikes were intensifying in Washington, a State Department lawyer examined whether American officials who approved arms sales to the Saudis and their partners faced legal risks.

Drawing on the international tribunal case against Charles Taylor, the Liberian warlord, that the United States has cited in Qaeda prosecutions, the lawyer reached an alarming conclusion in a 2016 memo: American officials, including the secretary of state, could be charged with war crimes for their role in arming the Saudi coalition, according to six current and former government officials with knowledge of the legal memo.

Though the legal analysis did not advance within the State Department, the Obama administration opened a policy review, and Secretary of State John Kerry tried to broker a cease-fire.

Since 2018, Representative Ted Lieu, Democrat of California, has asked the State Department to release the memo, but it has refused to do so.

Scrambling for a Legal Shield

During a White House meeting before Mr. Trump’s visit to Saudi Arabia that May, one official, Mike Miller, then the director of that bureau’s Office of Regional Security and Arms Transfers, put the concerns bluntly, according to two officials. He said he was worried he could be found liable for aiding the killing of civilians.

U.S. officials then drafted a set of guidelines for the Saudi and American governments to follow as a condition of future arms sales. They envisioned the plan not only saving civilian lives, but also offering protection against claims of American complicity in war crimes.

“We worked pretty rigorously to try to give them a sense that this was now going to be a harder sell,” Tina S. Kaidanow, who headed the Political-Military Affairs Bureau at the time, said of the Saudis.

But over three months, officials eager to push through the weapons deals pared back the guidelines.

Emails obtained by The Times show that Mr. Jones and his colleagues discussed how to craft acceptable language about the use of precision-guided munitions that Adel al-Jubeir, the Saudi foreign minister, would sign before Mr. Trump’s trip.

In April 2017, Timothy A. Lenderking, a deputy assistant secretary in the bureau, wrote to Mr. Jones that he had met with State Department lawyers “and agreed on edits to cut back the language of the letter.” The next day, Mr. Jones wrote that Mr. al-Jubeir had “quickly agreed” to sign a letter to Rex W. Tillerson, then the secretary of state, and had “asked for language.” (Mr. Jones, who left the State Department in 2018, referred questions to the department.)

In Riyadh, Mr. Trump and King Salman announced the arms deal.

‘A Horror Show’

The officials worried about the arms sales believed Mr. Sullivan to be attentive to the humanitarian concerns in the Yemen war. In the roughly three weeks he was running the department, they sent an appeal for legal clarity.

Mr. Sullivan responded by approving a memo the officials had drafted that recommended carrying out a robust strategy to reduce civilian casualties and an updated legal analysis before the bomb sales moved forward, according to two U.S. officials.

Mr. Pompeo took over soon after. That August, a coalition jet dropped an American-made bomb on a Yemeni school bus, killing 54 people, including 44 children, in an attack that Mr. Trump would later call “a horror show.”

The move provoked a backlash in Congress and strengthened lawmakers’ resolve to continue blocking arms sales.

Released this August, the report said that although Mr. Pompeo did not violate the law in declaring an emergency, the State Department had failed to take proper measures to reduce civilian casualties and the associated legal risk.

The public section of the final report, however, did not include an unclassified recommendation from an earlier draft: that the department should “update its analysis of legal and policy risks” related to selling bombs to the Saudi coalition, according to text obtained by The Times. The language of that recommendation was edited and moved to the classified annex after pressure from department officials.

Since the emergency declaration, which applied only to the sales last year, the Saudis and their partners have sought to buy more American bombs. About $800 million in orders is now pending, held up in the same congressional review process that had frustrated Mr. Pompeo and the White House.

The Emirates announced last summer it was withdrawing most of its forces from the grinding war in Yemen, but it is fighting in the Libyan war.

From July to early August this year, at least three airstrikes by the Saudi-led coalition in northern Yemen killed civilians, including a total of nearly two dozen children, according to the United Nations, aid workers and Houthi rebels. One strike occurred during a celebration after the birth of a newborn baby, a human rights worker said. The boy, just 1 week old, did not survive.