Sen. Kirsten Gillibrand: Anti-BDS Bill Should Be Rewritten to Avoid Legal Ambiguity

The influential Democratic senator from New York tells town hall that the current legislation targeting Israel boycotts, which she co-sponsored, should be changed in light of criticism from civil rights groups

Sen. Kirsten Gillibrand, D-N.Y., participates in a Senate Armed Services Committee hearing on Capitol Hill in Washington, March 14, 2017.
J. Scott Applewhite/AP

WASHINGTON - Senator Kirsten Gillibrand (D-NY), who was one of the co-sponsors of the controversial "Israel Anti-Boycott Act," said on Monday that after discussing the bill with a leading civil rights group, she will only support it if certain changes are made to its language, in order to avoid ambiguity vis-à-vis free speech protections. Gillibrand is considered a possible contender for the Democratic Party's leadership ahead of the 2020 presidential election, and her statement on Monday made her the most senior Democratic politician to demand changes in the bipartisan, AIPAC-supported legislation.

At a town hall in New York, Gillibrand was asked about the bill, which the American Civil Liberties Union (ACLU) warned would impose penalties on U.S. citizens simply for expressing a political position in support of boycotts against Israel and its West Bank settlements. Gillibrand said in reply to the question that she "would never support any bill that chills free speech." Gillibrand added that after meeting ACLU representatives and hearing why they feel the bill "chills free speech," she will "urge the authors of the bill to change the bill and will not support it in its current form.” Her comments were first reported by The Observer.

Gillibrand, it should be noted, doesn't fully agree with the ACLU's reading of the bill. The ACLU warned, in a letter distributed to members of the Senate two weeks ago that the bill could lead to a situation in which U.S. citizens would be sent to prison or be subjected to fines of hundreds of thousands of dollars, for supporting or participating in boycotts of Israel and its settlements. Gillibrand's office released a statement two weeks ago saying that "We have a different read of the specific bill language, however, due to the ACLU's concerns, the Senator has extended an invitation to them to meet with her and discuss their concerns."

Her "different read" of the bill draws on the fact that the penalties mentioned in the bill are based on an existing law from 1977, which made it illegal for U.S. corporations to join the Arab League boycott of Israel. While her position hasn't changed, Gillibrand now believes that if the ACLU has such serious concerns regarding the bill, it's a sign that the bill's language is too ambiguous, and that it should be clarified before the legislation moves forward. "There must be ambiguity there because otherwise the ACLU wouldn’t reach their conclusion, so I’m going to urge them to rewrite it to make sure it says, ‘This does not apply to individuals,'" she said on Monday.

The "Israel Anti-Boycott Act" was presented earlier this year by Senators Rob Portman (R-OH) and Ben Cardin (D-MD), who wrote a joint letter ten days ago to address the ACLU's criticism of the bill, in which they stated that no American citizen would be put on trial for supporting BDS if the bill passes.

Jay Michaelson, a legal affairs analyst for The Daily Beast, published an article two weeks ago which included a similar conclusion: the new bill only technically expands the 1977 anti-boycott law, in a way that would make it illegal for U.S. companies to cooperate with any boycotts of Israel and the settlements initiated by the UN or the EU. Michaelson blamed AIPAC, the powerful pro-Israel lobby which supports the legislation, for exaggerating its effect and importance, and by doing that, causing the harsh reaction against the legislation from the left, which according to his analysis, is detached from the bill's actual language.

But not all of the bill's critics are convinced. The American Interest magazine, which is considered to hold a centrist and pro-Israeli editorial line, wrote last week that "It’s true that the bill is probably not as blatantly unconstitutional as some of its opponents are arguing: it modifies a decades-old law that has been upheld in court, and legal scholars are still debating exactly how it would be enforced. But it’s not free-and-clear either. It seems possible, for example, that a person funding a student campaign for a university to enforce a UN or EU-backed Israel boycott could be exposed to criminal liability. Now, in fact the courts would quickly throw a case like that out—the First Amendment easily trumps a piece of feel-good legislation that Congress whooped through to gain popularity points. But it is hard to base a case for supporting a legal proposal on the argument that some of its obvious applications to domestic circumstances would be dismissed out of hand."