Failure to investigate potential Israeli crimes

DOJ lawyers slam 'glaring gap' in failure to investigate potential Israeli crimes

Ryan Lucas

Justice Department attorneys wrote to Attorney General Merrick Garland this week, calling out the “glaring gap” between the department’s approach to crimes committed by Russia and Hamas — versus the department’s silence on potential crimes committed by Israeli forces and civilians.

The four-page letter, dated Oct. 21, explicitly calls on the department to investigate potential crimes committed by Israeli soldiers and civilians, including the killings of American citizens in the West Bank and Gaza.

"In prosecuting crimes committed by Russia, Hamas and other wrongdoers, the Department has appropriately demonstrated its commitment to upholding the rule of law in the midst of ongoing geopolitical conflicts," the letter says. “But against the backdrop of numerous potential violations of U.S. law by individuals and entities affiliated with Israel, the Department’s silence and apparent inaction is a stark omission.”

The letter, which was first reported by Zeteo, a new media organization on Substack, is a rare instance of public disagreement from within the Justice Department. Unlike at the State Department, there is no established internal channel for DOJ employees to express dissent over a policy issue.

NPR reported two weeks ago on the Justice Department's silence over four U.S. citizens killed this year in the West Bank and Gaza Strip — the victims' families say by Israelis — despite demands from the Americans' families that the department investigate.

The DOJ letter was anonymously signed “your colleagues.” NPR has confirmed that the three authors of the letter are mid-career attorneys at the Justice Department.

It's unclear how widespread the views expressed in the letter are among the approximately 10,000 attorneys who work at the Justice Department, or what impact it could have.

One of the authors, speaking on condition of anonymity due to concerns about potential professional retaliation, told NPR the letter was emailed Monday to the attorney general’s chief of staff, Matt Klapper, from a non-department email account.

The Justice Department declined to comment for this story.

"Fair and impartial application"

During his time as attorney general, Garland has frequently spoken about upholding norms and "treating like cases alike." That was the theme of a major speech he delivered in the department’s Great Hall to the DOJ workforce on Sept. 12.

In that speech, the letter says, Garland told the department's employees that "as attorneys for the government, we should not be influenced by, among other factors, a person’s background, our feelings concerning the victims, and the effect of a charging decision on our professional and personal circumstances.”

The letter also raises remarks Garland made after Congress passed the Justice for Victims of War Crimes Act in 2022, which allows the department to prosecute a suspected war criminal in the U.S., regardless of the individual’s nationality.

"In the United States of America, there must be no hiding place for war criminals and no safe haven for those who commit such atrocities," Garland said at the time. "This bill will help the Justice Department fulfill that important mandate."

After Russia’s full-scale invasion of Ukraine, Garland publicly condemned the “war crimes that the entire world has seen,” and set up a special team to focus on possible Russian atrocities. The department has since charged four Russian soldiers with war crimes in Ukraine for allegedly abducting and torturing an American citizen.

In the Israel-Hamas conflict, Garland has publicly confirmed the department is investigating the killing and kidnapping of Americans in Hamas’ Oct. 7 attack on Israel. The department also has brought terrorism charges against six Hamas leaders.

But, the letter says, there has been a “glaring gap” in the department’s enforcement of potential violations of U.S. law by Israeli government forces and citizens.

“Despite credible evidence of violations of U.S. law, and in contrast to the department’s public position regarding crimes committed by Russia in its invasion of Ukraine, the department has taken no public steps to hold the perpetrators to account, even when the victims are U.S. citizens,” it says.

The letter lists several Americans citizens who have been killed this year by Israeli soldiers or civilians, including Jacob Flickinger, Aysenur Eygi, Tawfic Abdel Jabbar and Mohammad Khdour.

“Not only has no one been held to account, but the department has made virtually no public announcement of any investigations or even an acknowledgment of its commitment to seek accountability,” the letter says.

It also says that there is “credible evidence” that the Israeli military may have committed war crimes in Gaza, including forced displacement and starvation, unlawful confinement, torture and inhumane treatment of Palestinian detainees and mass destruction of civilian property and infrastructure.

Warning about 'apparatus of politics'

The International Criminal Court prosecutor has requested arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defense minister on charges of war crimes and crimes against humanity. The prosecutor also requested arrest warrants for three top Hamas figures on the same charges, although all three have been been killed by Israel.

Israel, a close American ally that the U.S. supplies with weapons, says its actions in Gaza have been in accordance with the laws of war.

The DOJ attorneys' letter points out that U.S. courts would have jurisdiction over Israeli soldiers or officials who travel to the U.S., as well as the more than 23,000 U.S. citizens who it says are currently serving in the Israeli military.

The same rigor that has been applied to holding Russian and Hamas perpetrators to account should be applied “where the perpetrators are acting on behalf of a political ally and the victims are stateless,” the letter says. “The disparate treatment of conduct by Israeli actors, reflected both in public statements and in charges the Department has brought, risks the precise implication you warned against—that our department has become ‘an apparatus of politics.’”

The department should open investigations into the killings of Americans and potential Israeli war crimes, if it has not already done so, the letter says, and state publicly that it is investigating. The letter also suggests that DOJ and FBI create a webpage for collecting evidence of potential Israeli war crimes, similar to what was set up for collecting evidence of possible Russian war crimes.

“Doing so will not only allow the department to raise awareness and provide guidance to those who may possess evidence of such crimes, but it will restore the public’s faith in the department’s commitment to basic principles of justice and equality under the law,” it says.