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Israel lobby’s targeting of BDS would have a chilling effect on political dissent

Far from being about protecting Jewish people from discrimination, proposed legislation that would outlaw the boycott of Israeli-made products and practices over political beliefs is, in fact, a danger to First Amendment rights.

Will Caron

Above: A particularly haunting piece of Hebron graffiti, signed by the Jewish Defense League. It reads, “Gas the Arabs.” This chilling “transfer of oppression” from the genocide of Jews under Nazi Germany to the present-day situation in Palestine was also evident in October, 2015, when an Israeli soldier was recorded warning Aida refugee camp residents that if they did not stop throwing stones, “We will gas you until you die.” | Cynthia Franklin

A group of 43 senators — 29 Republicans and 14 Democrats — wants to pass a law that would make it a felony for Americans to support the international boycott against Israel, which was launched in protest of that country’s decades-old occupation of Palestine. The proposed measure, called the Israel Anti-Boycott Act (S. 720), was introduced by Democrat Ben Cardin of Maryland and Republican Rob Portman of Ohio on March 23. (A concurrent house version was also introduced and has already amassed 234 co-sponsors: 63 Democrats and 174 Republicans, including Hawaii Congresswoman Colleen Hanabusa). The Jewish Telegraphic Agency reports that the bill “was drafted with the assistance of the American Israel Public Affairs Committee (AIPAC).”

But the American Civil Liberties Union (ACLU) has sent a letter to all the members of the Senate urging them to oppose this bill. Warning that “proponents of the bill are seeking additional co-sponsors,” the civil liberties group explained that “it would punish individuals for no reason other than their political beliefs.” The letter detailed what makes this bill so particularly threatening to basic civic freedoms:

We write today in opposition to S. 720, also known as the Israel Anti-Boycott Act. We understand that proponents of the bill are seeking additional co-sponsors. We urge you to refrain from co-sponsoring the legislation because it would punish individuals for no reason other than their political beliefs. We also urge you to oppose the bill, whether in committee or on the floor, unless it has undergone significant revision to resolve its constitutional infirmities.

The bill seeks to expand the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 which, among other things, prohibit U.S. persons from complying with a foreign government’s request to boycott a country friendly to the U.S. The bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts. Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison. We take no position for or against the effort to boycott Israel or any foreign country, for that matter. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.

This bill would impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies. There are millions of businesses and individuals who do no business with Israel, or with companies doing business there, for a number of reasons. Some, like those who would face serious financial penalties and jail time under the bill, actively avoid purchasing goods or services from companies that do business in Israel and the Palestinian Occupied Territories because of a political viewpoint opposed to Israeli policy. Others may refrain from Israeli-related business based on political beliefs, but choose not to publicly announce their reasoning. Still others do no business with companies in Israel for purely pragmatic 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 – even though there are many others who engage in the very same behavior. In short, 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.

The ACLU has long supported laws prohibiting discrimination, but this bill cannot fairly be characterized as an anti-discrimination measure, as some would argue. For example, the Civil Rights Act of 1964 already prevents businesses from discriminating against customers based on race, color, religion, and national origin. This bill, on the other hand, aims to punish people who support international boycotts that are meant to protest Israeli government policies, while leaving those who agree with Israeli government policies free from the threat of sanctions for engaging in the exact same behavior. Whatever their merits, such boycotts rightly enjoy First Amendment protection. By penalizing those who support international boycotts of Israel, S.720 seeks only to punish the exercise of constitutional rights.

Accordingly, we urge you not to co-sponsor this bill and to oppose it when it comes before you either in Committee or on the floor.

These bills would effectively provide the U.S. government with a directive to silence its citizens and others for refusing to do business with Israel. Importantly, this legislation would dole out punishment for refusing to do business with companies operating in the Occupied Palestinian Territories—companies that are thereby acting illegally under international law.

The bills are clearly targeting the Boycott, Divestment and Sanctions (BDS) movement. Launched in 2005, BDS is a non-violent, human-rights-based movement created with the endorsement of more than 170 Palestinian civil organizations and the support of a growing number of academic and social justice organizations. It takes inspiration from historical boycott efforts in Palestine, as well as from the South African anti-apartheid movement. In the United States, the movement has garnered important acts of solidarity from across social movements and was included in the platform of the Movement for Black Lives. Since its inception, the movement has garnered international support. Israeli Prime Minister Benjamin Netanyahu has called BDS a “strategic threat” to the state.

Drafted by AIPAC, the proposed legislation expands the “Export Administration Act” of 1979 and the Export-Import Bank Act of 1945. The former was put in place to offset the Arab boycott of Israel, established in 1945 by the League of Arab States. The Act called on the President to “issue regulations prohibiting any United States person, with respect to his activities in the interstate or foreign commerce of the United States, from taking or knowingly agreeing to take … actions with intent to comply with, further, or support any boycott fostered or imposed by a foreign country against a country which is friendly to the United States.”

In other words, one could be punished for following the call from a foreign country to boycott a country “friendly” to the United States. The current AIPAC draft extends the scope of criminality to actions aimed at heeding the boycott call of non-state actors, in this case, the United Nations and the European Union. The proposed legislation also raises the maximum civil penalty from $100,000 to $1 million and doubles the maximum prison sentence to 20 years.

In 2016, the United Nations Human Rights Council (UNHRC) passed a number of resolutions that, taken together, form an endorsement of Palestinian rights and require companies to bear these rights in mind as they engaged in business transactions. Among several actions, the UNHRC called upon states to defend human rights workers and organizations from attack and, importantly, to “encouraged business enterprises to avoid, identify, assess and address any adverse human rights impacts related to their activities.” The UNHRC also reaffirmed the Palestinian people’s right to self-determination and demanded that Israel end all practices and actions that violate the rights of Palestinians.

In response, Israeli Prime Minister Benjamin Netanyahu has suggested that the United States leave the UNHRC, saying, “These types of organizations must be delegitimized.” U.S. Ambassador to the United Nations Nikki Haley has accused the UNHRC of being “overwhelmed by a political agenda” for its criticism of Israel.

See “Is Israel an ‘apartheid’ state? This U.N. report says yes.

By drafting and lobbying for these bills, AIPAC is explicitly trying to use the U.S. government to silence critics of the Israeli state’s occupation and settlement of Palestinian territory, its discriminatory laws and policies toward its own Palestinian citizens and toward Palestinian refugees within the Occupied Palestinian Territory and its documented international human rights violations against Palestinians.

The proposed federal bills thus create a pathway for the United States to override international human rights efforts. They also grant legitimacy to the many anti-BDS laws found in individual states. The ACLU asserts that the bills target those who express support for the BDS movement. The organization noted that advocates are “penalized solely because they choose to express their opinion and because their opinion is disfavored by the political class in the states in question.”

Few lobbies dedicated to international issues are so active and well financed as the Israel lobby. AIPAC is the face of pro-Israel political influence in Washington D.C. Despite its name, it does not make campaign contributions. But pro-Israel entities spent $3.8 million on lobbying in 2013, and AIPAC accounted for roughly $3 million of that figure. More money was contributed from pro-Israel groups to federal campaigns in the 2012 election cycle, $16.1 million, than in any prior year. In 2016, organizations within the Israel lobby donated $4,547,343 in campaign contributions.

Another powerful pro-Israel force in American campaigns is super PAC megadonor Sheldon Adelson. Adelson spent $92.8 million on Republican super PACs in 2012, making him the single highest contributor to outside groups that year.

A national network of political action committees supplies much of the pro-Israel money in American politics. Chief among these donors’ goals: To support Israeli policy, especially towards its Arab neighbors and Palestine.

The financial and military relationship between the United States and Israel has become increasingly integrated since the 1985 bilateral Free Trade Agreement, the first FTA ever signed by the United States. In November of 2016, the United States and Israel signed a new 10-year military-assistance deal worth $38 billion over the course of a decade, an increase of roughly 27 percent on the money pledged in the last agreement, which was signed in 2007. The diplomatic and military alliance between the two countries is longstanding.

The influence of the Israeli lobby on politicians is second only to the influence of the Zionist narrative on the American public. Although young Americans are far less sympathetic toward Israel than their older peers (a 2014 Gallup poll found that only half of those aged 18 to 34 favored Israel in the Israel-Palestine conflict, “compared with 58 percent of 35- to 54-year-olds and 74 percent of those 55 and older”), those who speak out against Israeli policies still face censorship, censure and, even for Jewish Americans, accusations of anti-Semitism.

As author and professor of English at the Massachusetts Institute of Technology Junot Díaz put it in the foreword to Letters to Palestine: Writers Respond to War and Occupation (2016), “If you say, ‘I think the occupation of Palestine is fucked up on 40 different levels,’ people are like, ‘Yeah, you’re the devil. We’re gonna get your tenure taken away; we’re gonna destroy you.’ You can say almost anything else. You could be like, ‘I eat humans,’ and they’ll be like, ‘Bien, bien.’”

But taking a critical stance on Israeli state policy is not the same thing as being anti-Jewish. Jewish-American scholar, professor of English at the University of Hawaiʻi at Mānoa and supporter of the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI) Cynthia Franklin notes in her 2017 article “Anti-Zionism is not at odds with being Jewish:”

I had signed onto the U.S. Campaign for the Academic and Cultural Boycott of Israel (USACBI) with intellectual conviction, but also with some mixed feelings—I had friends and family members who viewed my endorsement as renunciation of my Jewishness, and as evidence that I was self-hating, even anti-Semitic ... After my 2013 visit, and after working on the Biography issue and then returning to Palestine in 2015 to launch it, my ambivalence was stripped away ... My time in Palestine taught me that anti-Zionism is not at odds with being Jewish. It also allowed me to see my participation in the BDS movement as a labor of love. It is not Jews, but Zionism, that sustains violently institutionalized divisions between Jews and Palestinians; between Jews and all non-Jews. And it is anti-Zionism, and support for the struggle for justice in Palestine, that affords Jews, and indeed all people, a way to overcome these dehumanizing divides.