By james art 
US Attorney General Merrick Garland speaks to the Department of Justice on September 27.
Chip Somodevilla
Justice Department lawyers wrote to Attorney General Merrick Garland this week, highlighting 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, specifically 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 criminals, the Department has appropriately demonstrated its commitment to upholding the rule of law in the midst of ongoing geopolitical conflicts,” the letter said. “But against the backdrop of numerous potential violations of US law by individuals and entities connected to Israel, the Department’s silence and apparent inaction is a complete omission.”
The letter, which was first reported by Zeteo, Substack’s new media arm, is a rare instance of public dissent from the Justice Department. Unlike the State Department, there is no established internal channel for Justice Department officials to voice disagreement on a policy matter.
NPR reported two weeks ago on the Justice Department’s silence on four American citizens killed this year in the West Bank and Gaza Strip — the victims’ families say were by Israelis — despite demands by the Americans’ families that the department investigate.
The letter from the Ministry of Justice is signed anonymously with “your colleagues”. NPR has confirmed that the three authors of the letter are mid-career attorneys at the Department of Justice, two of whom work at the department’s headquarters in Washington, D.C.
It’s unclear how widespread the views expressed in the letter are among the roughly 10,000 lawyers who work at the Justice Department, or what impact it might have.
One of the authors, speaking on condition of anonymity because of concerns about potential professional retaliation, told NPR that the letter was emailed Monday from an email account outside the department to a senior official in the attorney general’s office.
The Justice Department declined to comment for this story.
“Fair and impartial application”
During his time as attorney general, Garland often spoke of upholding the norm and “treating cases alike.” That was the subject of a major speech he gave in the Department’s Great Hall to DOJ officials on September 12.
In that speech, the letter said, Garland told department officials that “as attorneys for the government, we should not be swayed by, among other factors, a person’s background, our feelings about the victims, and the effect of the decision to charge on our professional and personal circumstances.”
The letter also raised remarks Garland made after Congress passed the Justice for Victims of War Crimes Act of 2022, which allows the department to prosecute a suspected war criminal in the U.S. regardless of the person’s nationality.
“The United States of America should have no safe haven for war criminals and no safe haven for those who commit such atrocities,” Garland said at the time. “This bill will help the Department of Justice fulfill this important mandate.”
After Russia’s full-scale invasion of Ukraine, Garland publicly condemned “war crimes that the whole world saw” and created a special task force to focus on possible Russian atrocities. The department has since charged four Russian soldiers with war crimes in Ukraine for allegedly kidnapping and torturing an American citizen.
In the Israel-Hamas conflict, Garland has publicly confirmed that the department is investigating the killing and kidnapping of Americans in the October 7 Hamas attack on Israel. The department also filed terrorism charges against six Hamas leaders.
But, the letter said, there is a “clear gap” in the department’s enforcement of potential violations of US law by Israeli government forces and citizens.
“Despite credible evidence of violations of US law, and in contrast to the Department’s public position regarding the crimes committed by Russia in its invasion of Ukraine, the Department has taken no public steps to hold the perpetrators accountable, even when the victims are US citizens,” it said.
The letter lists several American citizens who have been killed this year by Israeli soldiers or civilians, including Jacob Flickinger, Eisenur Aigi, Tawfiq Abdel Jabbar and Mohammad Khdour.
The parents and brother of Palestinian American Mohammad Khdur stand on the outskirts of Bidu, West Bank, on September 19. Mohammad, 17, was shot while driving in the hills not far from their home in February.
Maya Levin for NPR
“Not only has no one been held accountable, but the department has made virtually no public announcement of any investigations or even an acknowledgment of its commitment to accountability,” the letter said.
It also says there is “credible evidence” that the Israeli military may have committed war crimes in Gaza, including forced displacement and starvation, illegal detention, torture and inhumane treatment of Palestinian detainees, and mass destruction of civilian property and infrastructure.
Warning about the “political apparatus”
The International Criminal Court prosecutor has sought arrest warrants for Israeli Prime Minister Benjamin Netanyahu and his defense minister on charges of war crimes and crimes against humanity. The prosecutor also sought arrest warrants for three senior Hamas figures on the same charges, even though all three were killed by Israel.
Israel, a close US ally that supplies the US with weapons, says its actions in Gaza were in accordance with the laws of war.
The letter from DOJ lawyers said US courts would have jurisdiction over Israeli soldiers or officials traveling to the US, as well as over 23,000 US citizens said to be currently serving in the Israeli military.
The same rigor that was used to hold Russian and Hamas perpetrators accountable should be applied “when the perpetrators are acting on behalf of a political ally and the victims are stateless,” the letter said. “The disparate treatment of the behavior of Israeli actors, reflected in both the public statements and the accusations brought by the Department, risks the very implication you warned against – that our Department has become a ‘political apparatus.'”
The department should open investigations into the killings of Americans and potential Israeli war crimes, if it has not already done so, the letter said, and say publicly that it is investigating. The letter also suggested that the DOJ and FBI create a web page to gather evidence of potential Israeli war crimes, similar to what was created to gather evidence of possible Russian war crimes.
“This will not only allow the department to raise awareness and provide guidance to those who may possess evidence of such crimes, but will restore public faith in the department’s commitment to the core principles of fairness and equality before the law,” it said in it.