An open letter to Rep. Hanabusa RE: Israel Anti-Boycott Act

Above: Mural artwork on a section of the Apartheid Wall in Occupied Bethlehem. | Cynthia Franklin

Dear Congresswoman Hanabusa:

I write to express my strong opposition to the “Israel Anti-Boycott Act” (IABA).

Each day I receive emails from you about how much you care about the people of Hawaiʻi, and about your investments in democracy, and in public goods like clean water and health care. However, I have received no email announcing your support for this bill or your reasons for doing so. At your Aug. 8 Town Hall Meeting at Kaimuki High School, the issues you listed as ones you are proud of make no mention of the IABA. I cannot help but wonder who or what, perhaps besides AIPAC, your support for it serves. Certainly not the people of Hawai‘i. And certainly not freedom and democracy. I call on you as my representative to immediately withdraw your sponsorship of this draconian bill—one deemed by the American Civil Liberties Union to be “in direct violation of the First Amendment.”

I do so as a U.S. citizen concerned about its blatant disregard for free speech. I do so as a Jew opposed not only to anti-Semitism, but also Zionism—a political ideology that I distinguish from the Jewish religion. I do so as someone who has spent considerable time in Palestine/Israel and witnessed first-hand Israel’s ongoing practices of occupation, ethnic cleansing and apartheid. And I do so as an educator who has been organizing for the past several years with BDS, the Boycott, Divestment and Sanctions campaign—a Palestinian-led movement that this bill is designed to criminalize.

Despite this bill being dressed up in language about exports and imports, and technicalities that seek to disguise its intent, its purpose is clear. It aims to silence and punish advocates of BDS, a non-violent grassroots movement whose demands are that Israel comply with international law by: (1) ending its occupation of Palestinian lands; (2) stopping its discrimination against Palestinians who are citizens of Israel; and (3) granting Palestinians’ their right to return. (And I noticed that in your remarks at the Town Hall, you yourself called it the “BDS bill,” as have others speaking out about the bill’s intent—for example, Senator Wyden of Oregon on Aug. 5 explained the bill as a response to BDS’s growing power.)

If enacted into law, the IABA bill will impose criminal and civil punishment on individuals and businesses—and potentially other entities, including academic organizations—simply because they have expressed a particular political belief, in this case support for a boycott of Israel. The bill is therefore a threat to the constitutionally protected right to free speech.

This bill would amend the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 so as to prohibit U.S. persons (including businesses) from supporting boycotts directed against Israel conducted by international governmental organizations such as the European Union and the United Nations. Significantly, this bill’s provisions apply not only to Israel within its 1967 borders. They extend to those boycotting the Israeli settlements in the Palestinian Occupied Territories. These settlements, part of a 70-year long occupation of the West Bank and Gaza, clearly violate international law. (And even as I write this letter, Israel is once again attacking Gaza, which, owing to ten years of Israeli siege and blockade, the World Health Organization has predicted will be unlivable by 2020.)

Expressing support for a principled boycott—one inspired by the South African anti-apartheid boycott—could subject violators to up to 20 years in prison, a maximum criminal penalty of $1 million and a minimum civil penalty of $250,000. This bill would even criminalize U.S. individuals and businesses complying with current efforts by the EU and some UN agencies to, for example, require products made in the West Bank to be labeled as such.

As the American Civil Liberties Union noted in its July 17, 2017 public statement opposing this bill for its First Amendment violations, many U.S. businesses and individuals do not do business with Israel or its West Bank settlements, and for various reasons. “Under the bill, however, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment …. In short, the bill would punish individuals based solely on their point of view.”

On August 8, you presented your support for the bill as a defense of companies being “blacklisted” by foreign entities. But who would be doing this “blacklisting?” Your analogy regarding the NAACP’s call to boycott Gaster Lumber only obfuscated this issue further by suggesting that companies or workers were being harmed by, and protected from, the Israeli boycott under the IABA when precisely the opposite is true. It is the IABA Bill that actively seeks to punish businesses for their choice to observe any boycott of Israel called for by the EU or the UN.

Although the bill targets businesses, it is after all people not businesses who can be sent to prison. And under this bill, this can happen merely because people have exercised their constitutional right to free speech. In addition, this bill poses a grave threat to academic freedom—and I speak here out of my concerns as an educator. It is not difficult to envision its provisions being used to punish faculty, students, student groups and academic organizations advocating for some form of boycott of Israel. Indeed, this is already happening through the pressures exerted by right-wing pro-Israel organizations such as The Lawfare Project, Canary Mission, and the David Horowitz Freedom Center. This bill would intensify this repression. The bill would have a chilling effect on the free and open exchange of ideas at institutions of higher education and severely compromise their educational mission.

Congresswoman Hanabusa, as indicated at your Town Hall, not only through your comments about the bill, but also through its omission from your flyer advertising the contributions you are making to kupuna, to Hawai‘i families, to health care and to the community, I wonder how you can support this unconstitutional bill in good conscience? How can it possibly serve the people of Hawai‘i or anyone with regard for freedom and justice? I call on you as my representative to immediately withdraw your sponsorship of it. I ask that you vigorously oppose rather than support any and all legislative action that threatens our right to free speech and political expression, including through advocacy of boycotts.

I attach here for your consideration some resources in support of the claims I have made here—I do hope you will read them.

Sincerely,

Cynthia Franklin

U.S. Campaign for Palestinian Rights Resources:
1. Annotation of Amendments Proposed in the Israel Anti-Boycott Act: This mark-up shows the proposed amendments in the Israel Anti-Boycott Act to the Export Administration Act of 1979 and the Export-Import Bank Act of 1945. Four areas of primary concern are highlighted.

2. “Israel Anti-Boycott Act Is Unconstitutional Infringement on Free Speech, Attempt to Legitimize Israeli Settlements”: Our one-pager on the issue highlighting major concerns.

3. “New U.S. bill would punish settlement boycotters”: Analysis by our Policy Director Josh Ruebner.

4. “Labeling Israeli settlement products is U.S. law, too”: Analysis in The Hill by our Policy Director Josh Ruebner of existing U.S. laws that require goods produced in Israeli settlements to be labeled ‘West Bank,’ ‘Gaza,’ or ‘Gaza Strip,’ or face a 10 percent ad valorem duty levied on the product.

ACLU Resources:
1. ACLU letter opposing the Israel Anti-Boycott Act, Faiz Shakir, National Political Director: The ACLU explains that “the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment.”

2. ACLU Blog Post - “The First Amendment Protects the Right to Boycott Israel,” Brian Hauss, Staff Attorney: “the right to boycott is one of the brightest stars in our constitutional firmament.”

3. ACLU FAQ - How the Israel Anti-Boycott Act Threatens First Amendment Rights: The ACLU’s comprehensive breakdown of most frequently asked questions on the bill. Includes examples of criminalized behavior (Q2) and a response to Sens. Cardin and Portman’s claim that the bill merely extends existing law (Q3).

4. ACLU in the Washington Post - “This piece of pro-Israel legislation is a serious threat to free speech,” David Cole, National Legal Director, and Faiz Shakir, National Political Director: “Neither individuals nor businesses should have to fear million-dollar penalties, years in prison and felony convictions for expressing their opinions through collective action. As an organization, we take no sides on the Israeli-Palestinian conflict. But regardless of the politics, we have and always will take a strong stand when government threatens our freedoms of speech and association. The First Amendment demands no less.”

Other Resources
1. “U.S. Lawmakers Seek to Criminally Outlaw Support for Boycott Campaign Against Israel” by Glenn Greenwald in The Intercept: this article and ACLU letter touched off a media storm. “Among the co-sponsors of the bill are several of the politicians who have become political celebrities by positioning themselves as media leaders of the anti-Trump #Resistance… These politicians, who have built a wide public following by posturing as opponents of authoritarianism, are sponsoring one of the most oppressive and authoritarian bills that has pended before Congress in quite some time.”

2. Amnesty International endorses the settlement boycott: As they boldly stated last month, “States must ban Israeli settlement products to help end half a century of violations.”

3. Brookings poll says Democrats want sanctions on Israel: “...an expanding majority of Democrats in the new poll say they want to see sanctions or more serious actions taken in response. While in my 2014 poll, 48 percent of Democrats supported sanctions or more serious measure, the number now stands at 60 percent.”

4. BDS is a ‘classic tool of peaceful political expression’: According to the LA Times Editorial Board in a powerful editorial, “Israel should stop trying to wall out its critics,” published last week.

5. An article by David Palumbo-Liu

6. An article about Elizabeth Warren’s opposition to the bill.

7. An article about Kirsten Gillibrand’s opposition to the bill.

Cynthia Franklin is a professor of English at the University of Hawaiʻi (UH) at Manoa, co-edits the journal Biography and is on the Steering Committee for the Organizing Collective of USACBI, the US Academic and Cultural Boycott of Israel. She also founded UH Faculty and Students for Justice in Palestine, and co-founded the Hawaiʻi Coalition for Justice in Palestine (HCJP) and Jewish Voice for Peace-Hawaiʻi.