Moment of Truth: Congress to Decide on Key Israel-related Legislation Within Days

Two bills show that Israel is a contentious issue less than a month into the current session of Congress, causing divisions both between parties and within them

Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer speak after a deal was announced to end the government shutdown, Washington, January 25, 2019.
\ JOSHUA ROBERTS/ REUTERS

WASHINGTON – Now that the government shutdown in the capital has ended (at least for the next three weeks), Congress is expected to reach a decision in the next few days on two important pieces of legislation related to Israel. These two bills have already sparked heated debate during the shutdown period, and tensions could rise as the focus in D.C. shifts away from the task of reopening the government.

The first critical piece of legislation related to Israel is called the Anti-Terrorism Clarification Act (ATCA), which passed both houses of Congress last year and was signed into law by President Donald Trump last October. The law states that any foreign entity that receives assistance from the U.S. government can be sued in U.S. courts for past acts of terrorism that harmed American citizens.

The ATCA has created a serious obstacle for the Palestinian Authority, as the legislation’s supporters intended. In accordance with the law, if the PA accepts any form of U.S. assistance in 2019, it opens itself up to the risk of multimillion dollar lawsuits in American courts.

Following the passage of the bill, the PA informed the Trump administration it will no longer accept any kind of U.S. assistance. That decision jeopardizes American support for the PA’s security and intelligence forces, which work together with the Israel Defense Forces in the West Bank to thwart terrorism.

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The ATCA bill was promoted in Congress last year in response to rulings by U.S. courts that blocked multimillion dollar lawsuits against the PA. These lawsuits were filed by American citizens who were injured or lost loved ones in terror attacks committed by Palestinians – mostly during the second intifada in the early 2000s. The Supreme Court in Washington affirmed a ruling by a lower court that the U.S. legal system does not have jurisdiction to deal with such lawsuits.

The Trump administration originally supported ATCA and the president signed it into law soon after it passed. Then, however, the administration became aware of the potential danger the legislation posed to U.S. support for the PA security forces.

While the administration cut almost every form of U.S. support for Palestinian civilians during 2018, because of political tensions between Washington and Ramallah, it did not cut U.S. aid for the PA security forces. Last August, the United States transferred tens of millions of dollars to those forces, stressing their coordination with Israeli forces against terrorism as a prime reason for the continued support.

Over the past two months, the administration has tried to convince Congress to “fix” the ATCA legislation in a way that would allow the United States to continue supporting the Palestinians in some form, especially in the security arena. That effort ran into difficulties as a result of the shutdown, as Haaretz reported earlier this month.

Now with the shutdown at least temporarily over, the administration is facing strong opposition to its proposed “fix” by Sen. Chuck Grassley (Republican of Iowa). Grassley raged on his Twitter account last week against the State Department’s suggested language, going so far as to say that “We need an American desk at our own state dept!” – accusing those working at the department of not being loyal to the United States.

Israeli security officials have been concerned about the effects of ATCA since the law passed in Congress. One active, high-ranking IDF officer told Haaretz it was frustrating how little debate was devoted to the legislation’s possible effects on the security situation on the ground in the West Bank.

Israel’s concerns became public last week when Israel’s Channel 13 News reported that the Israeli Embassy in Washington had reached out to the administration and to members of Congress, asking to find a way to continue U.S. support for the PA security forces.

The administration has discussed one possible solution of funneling the money through the CIA. Even that, though, would require some level of compromise with Congress to avoid a situation in which the PA risks crippling lawsuits as a result of continuing its security coordination with Israel.

It should be noted the lawsuit that inspired the ATCA bill mostly deals with events from the second intifada. Back then, under Yasser Arafat’s leadership, the PA didn’t regularly work together with Israel to thwart terrorism. Rather, it encouraged and assisted many attacks. 

The situation in the West Bank is very different nowadays: Outgoing IDF Chief of Staff Lt. Gen. Gadi Eisenkot told the Israeli government – in his last briefing before being released from the military two weeks ago – that the security coordination with the PA saves the lives of Israeli and Palestinian citizens, and should continue despite political tensions.

It’s now up to Congress to find a compromise or leave the legislation as it is. Supporters of the legislation blame the administration for rejecting the compromise offered by Grassley, although the details of that proposal have not been made public.

The second piece of legislation that will almost certainly make headlines this week is the Senate bill known as “S.1,” which is essentially a package of bills on U.S. policy in the Middle East. Most of these bills are not controversial and will have widespread bipartisan support – such as bills affirming security aid to Israel and Jordan, or placing sanctions on the Syrian regime.

One part of the legislation, however, has become the focus of political controversy: Encouraging support for local legislation passed by U.S. states against the boycott, divestment and sanctions movement.

More than 25 states have passed such legislation in recent years. In many cases, the local legislation makes it illegal for the state government to sign contracts with service providers who refuse to sign a declaration saying they don’t participate in boycotts of Israel or its settlements in the West Bank.

Over the past year, a number of contractors filed lawsuits against such laws, claiming to have lost jobs because of them. In two cases, federal courts in Kansas and Arizona suspended the implementation of such laws as a result of lawsuits alleging a violation of the First Amendment to the U.S. Constitution. The American Civil Liberties Union has denounced such legislation and is involved in many of the lawsuits against it.

Shortly after Congress began its new session, Sen. Marco Rubio (Republican of Florida) brought forward the S.1 legislation, which – alongside the consensus bills on security assistance to U.S. allies in the Middle East – included the anti-boycott law endorsing the local state action against BDS. The ACLU expressed its opposition to the legislation, and a split emerged within the Democratic Party.

Some prominent Democratic senators, such as presidential contenders Elizabeth Warren and Kamala Harris, and veteran Jewish lawmakers Dianne Feinstein and Bernie Sanders, came out against it, warning that it violates the principle of freedom of speech. Other Democrats, including Senate Minority Leader Chuck Schumer and New Jersey Sen. Bob Menendez, are expected to support it.

Republicans in the Senate pushed forward the legislation on a number of occasions during the shutdown, but Democrats voted against it. They claimed that no legislation should be advanced in the Senate until Senate Majority Leader Mitch McConnell agrees to pass a law reopening the government. Republicans used the debate to attack Democrats, calling them “anti-Israel.”

This week the legislation will reach its “moment of truth.” Democratic senators will have to make a choice, and their decisions will be consequential either way. Democrats who vote in favor of the bill will do so in spite of a strong warning from the ACLU that it harms free speech. Democrats who vote against it will do so in spite of strong opposition by American Israel Public Affairs Committee and other groups that support the Israeli government who are committed to passing this legislation.

The ATCA bill and anti-BDS bill show that Israel has already become a contentious issue, less than a month into the current session of Congress, causing divisions between parties – and also within them.