On the 39th Friday

The Great March of Return and Breaking the Siege
Israeli Forces Kill 3 and Wound 115 Other Civilians

Palestinian Centre for Human Rights, Ref: 138/2018, 21 December 2018

On Friday evening, 21 December 2018, Israeli forces Killed 3 Palestinian civilians, including a child and a person with a mobility impairment, and wounded 115 other civilians, including 21 children, 2 women, 2 journalists and 3 paramedics, in the peaceful demonstrations in the eastern Gaza Strip despite the decreasing intensity of the demonstrations there for the eighth week consecutively and absence of most means usually used during the demonstrations since the beginning of the Return and Breaking the Siege March 8 months ago.

According to observations by PCHR’s fieldworkers, for the eighth week since the beginning of the Return March on 30 March 2018, burning tires and stone-throwing decreased while the attempts to cross the border fence and throw incendiary balloons were completely absent.

Though the demonstrators were around tens of meters away from the border fence, the Israeli forces who stationed in prone positions and in military jeeps along the fence continued to use excessive force against the demonstrators by opening fire and firing teargas canisters at them, without the later posing any imminent threat or danger to the life of soldiers.

On 21 December 2018, the incidents were as follows:

At approximately 14:30, thousands of civilians, including women, children and entire families, started swarming to the five encampments established by the Supreme National Authority of Great March of Return and Breaking the Siege adjacent to the border fence with Israel in eastern Gaza Strip cities. Hundreds, including children and women, approached the border fence with Israel in front of each encampment and gathered tens of meters away from the main border fence, attempting to throw stones at the Israeli forces. Although the demonstrators gathered in areas open to the Israeli snipers stationed on the top of the sand berms and military watchtowers and inside and behind the military jeeps, the Israeli forces fired live and rubber bullets in addition to a barrage of teargas canisters. The Israeli shooting, which continued at around 17:00, resulted in the killing of 3 civilians, including a child and a person with a mobility impairment.

Those Killed were identified as:

    1. Mohammed Mo’in Khalil Jahjouh (16), from Shati’ Refugee camp, west of Gaza City, after being hit with a bullet to the neck in eastern Gaza.

    2. ‘Abdel ‘Aziz Ibrahim ‘Abdel ‘Aziz Abu Sharia (28), from Gaza City, who was hit with a bullet to the abdomen in eastern Gaza and succumbed to his wounds hours later.

    3. Maher ‘Atiyah Mohammed Yasin (40), from al-Nussairat refugee camp, who succumbed to wounds he sustained after being hit with a bullet to the head in eastern al-Bureij refugee camp, noting that he had suffered a mobility impairment since childhood.

Moreover, 115 civilians, including 21 child, 2 women, 2 journalists and 3 paramedics, were wounded. In addition, hundreds suffered tear gas inhalation and seizures due to tear gas canisters that were fired by the Israeli forces from the military jeeps and riffles in the eastern Gaza Strip.

The following table shows the number of civilian victims due to the Israeli forces’ suppression of the Great March of Return since its beginning on 30 March:

Casualties Medical Crews Journalists Women Children Total
Killed 3 2 1 35 178 Note 1
Wounded 152 131 291 1819 10,021 Note 2
    [Note 1] Among those killed, there were 6 Persons with Disabilities and a girl.

    [Note 2] Among those wounded, 512 are in serious condition and 101 had their lower or upper limbs amputated; 89 lower-limb amputations, 2 upper-limb amputations, 10 finger amputations and 17 children had their limbs amputated according to the Ministry of Health. The number of those wounded only include those wounded with live bullets and directly hit with tear gas canisters as there have been thousand others who suffered tear gas inhalation and sustained bruises.

PCHR emphasizes that continuously targeting civilians, who exercise their right to peaceful assembly or while carrying out their humanitarian duty, is a serious violation of the rules of international law, international humanitarian law, the ICC Rome Statute and Fourth Geneva Convention. Thus, PCHR calls upon the ICC Prosecutor to open an official investigation in these crimes and to prosecute and hold accountable all those applying or involved in issuing orders within the Israeli Forces at the security and political echelons.

PCHR hereby condemns the excessive use of force and commission of crimes by the Israeli forces despite the prevailed calmness, believing it is as a result of Israel’s enjoying impunity thanks to the U.S. and so encouraging the Israeli forces to commit further crimes upon an official decision by the highest military and political echelons.

PCHR also reiterates its call upon the High Contracting Parties to the 1949 Fourth Geneva Convention to fulfill their obligations under Article 1; i.e., to respect and ensure respect for the Convention in all circumstances and their obligations under Article 146 to prosecute persons alleged to commit grave breaches of the Fourth Geneva Convention.

PCHR calls upon Switzerland, in its capacity as the Depository State for the Convention, to demand the High Contracting Parties to convene a meeting and ensure Israel’s respect for this Convention, noting that these grave breaches constitute war crimes under Article 147 of the same Convention and Protocol (I) Additional to the Geneva Conventions regarding the guarantee of Palestinian civilians’ right to protection in the occupied territories.


Israeli military edited video of fatal strike

‘Warning strike’ killed two Palestinian teenagers

B’Tselem, 19 December 2018

The case

On 14 July 2018, around 6 P.M., the partially constructed al-Katibah Building in Gaza City was the target of an Israeli airstrike, consisting of four initial missiles, followed by four larger strikes. The first missile killed two Palestinian teenagers, Amir a-Nimrah and Luai Kahil, as they sat on the roof of the building. Twenty-three others were injured in the following strikes, which also damaged two neighboring buildings—a cultural center and a mosque.

The four initial missiles launched were part of what the Israeli military calls ‘roof knocking’, a policy by which ‘low-explosive munitions’ are used, supposedly to warn civilians of a larger impending strike and to allow time for them to evacuate the area. Israel claims that these warnings are legal and are meant to protect civilians. However, quite to the contrary, missiles launched as ‘roof knocking’ form part of an attack, for all intents and purposes. As such, they must follow the relevant rules under International Law. In this case a-Nimrah and Kahil were killed as a result of an attack that disregarded these rules completely.

The investigation

Following the attack, the Israeli military published footage of the strikes via its Twitter account, @idfspokesperson, supposedly showing four different strikes.

The attack was documented by a number of different sources. In addition to the Israeli military’s aerial footage, the attack was captured by nearby CCTV cameras. B’Tselem’s field researchers gathered further video material on the ground, as well as from social media and other open sources.

Forensic Architecture (FA) used this material to establish a definitive timeline of the sequence of strikes.

Conclusions

  • Our investigation found that the sequence of videos published through the @idfspokesperson Twitter account edited out the first, fatal strike. The published footage did show four strikes in sequence, but that sequence did not reflect reality: the first strike featured in the published sequence was in fact the third warning strike, from a different angle.
  • FA and B’Tselem also consulted multiple weapons experts, each of whom independently concluded that the fragmentation pattern caused by the fatal strike indicates the presence of shrapnel—indicating that the munitions used was specifically designed as an anti-personnel weapon. This contradicts the military’s claims.
  • It is unknown if the two teenagers were visible to the military before the first strike. If they were, they should not have been targeted. But if not, it follows that the Israeli military cannot justifiably rely on its aerial surveillance technologies to avoid civilian casualties.

Quotes

Hagai El-Ad, Executive Director of B’Tselem, said: ‘Airstrikes in Gaza are marketed to the public by the Israeli military as surgical actions, designed to protect civilians, based on precision intelligence, accurate munitions, state-of-the-art surveillance, and close attention to international law.

‘In reality, that is often nothing more than propaganda. The truth, instead, is devastating civilian casualties, surveillance that is incapable of distinguishing combatants from teenagers, inept intelligence, and the reduction of legal principles that are intended to protect civilians into a perfunctory checklist, which is later used to whitewash human rights violations, and to establish impunity.’

Nicholas Masterton, a researcher with FA and coordinator for this project, said: ‘This investigation demonstrates how a deep reading of the imagery provided by the IDF, which was ostensibly intended to legitimise the “warning strikes” on the al-Katibah building, can be unravelled to reveal a different story.

‘The wealth of images and videos in this case allowed us to conduct a rigorous independent investigation, and to challenge the Israeli military’s claims. We could not only show that Kahil and a-Nimrah were killed by a deadly missile, but also expose the underhanded way in which the Israeli military presented details of such strikes to the public.’

Eyal Weizman, Forensic Architecture’s Director, said: ‘We decided to spend time investigating this case because warning strikes are an essential part of the Israeli military’s claims to high ethical standards. But such warnings are sometimes delivered with the same missiles that are used elsewhere to kill.

‘As a result, it’s no surprise that these warning strikes can kill the very civilians they are purportedly meant to warn, or that the message they are meant to deliver is often misunderstood.

‘Further, these so-called ‘warnings’ give the IDF a licence, as they perceive it, to subsequently commence heavy bombardment of buildings in dense urban areas. They can as such have the result of causing more civilian casualties, rather than preventing them.’

A Speech Pathologist Refused to Sign a Pro-Israel Oath

So She Lost Her Texas Elementary School Job

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Map: Palestine Legal

Glenn Greenwald, The Intercept, December 17 2018

A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas, has been told that she can no longer work with the public school district, after she refused to sign an oath vowing that she “does not” and “will not” engage in a boycott of Israel or “otherwise tak[e] any action that is intended to inflict economic harm” on that foreign nation. A lawsuit on her behalf was filed early Monday morning in a federal court in the Western District of Texas, alleging a violation of her First Amendment right of free speech.

The child language specialist, Bahia Amawi, is a U.S. citizen who received a master’s degree in speech pathology in 1999 and, since then, has specialized in evaluations for young children with language difficulties (see video below). Amawi was born in Austria and has lived in the U.S. for the last 30 years, fluently speaks three languages (English, German, and Arabic), and has four U.S.-born American children of her own.

Amawi began working in 2009 on a contract basis with the Pflugerville Independent School District, which includes Austin, to provide assessments and support for school children from the county’s growing Arabic-speaking immigrant community. The children with whom she has worked span the ages of 3 to 11. Ever since her work for the school district began in 2009, her contract was renewed each year with no controversy or problem.

But this year, all of that changed. On August 13, the school district once again offered to extend her contract for another year by sending her essentially the same contract and set of certifications she has received and signed at the end of each year since 2009.

She was prepared to sign her contract renewal until she noticed one new, and extremely significant, addition: a certification she was required to sign pledging that she “does not currently boycott Israel,” that she “will not boycott Israel during the term of the contract,” and that she shall refrain from any action “that is intended to penalize, inflict economic harm on, or limit commercial relations with Israel, or with a person or entity doing business in Israeli or in an Israel-controlled territory.”

The language of the affirmation Amawi was told she must sign reads like Orwellian — or McCarthyite — self-parody, the classic political loyalty oath that every American should instinctively shudder upon reading:

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That language would bar Amawi not only from refraining from buying goods from companies located within Israel, but also from any Israeli companies operating in the occupied West Bank (“an Israeli-controlled territory”). The oath given to Amawi would also likely prohibit her even from advocating such a boycott given that such speech could be seen as “intended to penalize, inflict economic harm on, or limit commercial relations with Israel.”

Whatever one’s own views are, boycotting Israel to stop its occupation is a global political movement modeled on the 1980s boycott aimed at South Africa that helped end that country’s system of racial apartheid. It has become so mainstream that two newly elected members of the U.S. Congress explicitly support it, while boycotting Israeli companies in the occupied territories has long been advocated in mainstream venues by Jewish Zionist groups such as Peace Now and the Jewish-American Zionist writer Peter Beinart.

This required certification about Israel was the only one in the contract sent to Amawi that pertained to political opinions and activism. There were no similar clauses relating to children (such as a vow not to advocate for pedophiles or child abusers), nor were there any required political oaths that pertained to the country of which she is a citizen and where she lives and works: the United States.

In order to obtain contracts in Texas, then, a citizen is free to denounce and work against the United States, to advocate for causes that directly harm American children, and even to support a boycott of particular U.S. states, such as was done in 2017 to North Carolina in protest of its anti-LGBT law. In order to continue to work, Amawi would be perfectly free to engage in any political activism against her own country, participate in an economic boycott of any state or city within the U.S., or work against the policies of any other government in the world — except Israel.

That’s one extraordinary aspect of this story: The sole political affirmation Texans like Amawi are required to sign in order to work with the school district’s children is one designed to protect not the United States or the children of Texas, but the economic interests of Israel. As Amawi put it to The Intercept: “It’s baffling that they can throw this down our throats and decide to protect another country’s economy versus protecting our constitutional rights.”

Amawi concluded that she could not truthfully or in good faith sign the oath because, in conjunction with her family, she has made the household decision to refrain from purchasing goods from Israeli companies in support of the global boycott to end Israel’s decadeslong occupation of the West Bank and Gaza.

Amawi, as the mother of four young children and a professional speech pathologist, is not a leader of any political movements: She has simply made the consumer choice to support the boycott by avoiding the purchase of products from Israeli companies in Israel or the occupied West Bank. She also occasionally participates in peaceful activism in defense of Palestinian self-determination that includes advocacy of the global boycott to end the Israeli occupation.

Watch The Intercept’s three-minute video of Amawi, as she tells her story, here:

Video by Kelly West

When asked if she considered signing the pledge to preserve her ability to work, Amawi told The Intercept: “Absolutely not. I couldn’t in good conscience do that. If I did, I would not only be betraying Palestinians suffering under an occupation that I believe is unjust and thus, become complicit in their repression, but I’d also be betraying my fellow Americans by enabling violations of our constitutional rights to free speech and to protest peacefully.”

As a result, Amawi informed her school district supervisor that she could not sign the oath. As her complaint against the school district explains, she “ask[ed] why her personal political stances [about Israel and Palestine] impacted her work as a speech language pathologist.”

In response, Amawi’s supervisor promised that she would investigate whether there were any ways around this barrier. But the supervisor ultimately told Amawi that there were no alternatives: Either she would have to sign the oath, or the district would be legally barred from paying her under any type of contract.

Because Amawi, to her knowledge, is the only certified Arabic-speaking child’s speech pathologist in the district, it is quite possible that the refusal to renew her contract will leave dozens of young children with speech pathologies without any competent expert to evaluate their conditions and treatment needs.

“I got my master’s in this field and devoted myself to this work because I always wanted to do service for children,” Amawi said. “It’s vital that early-age assessments of possible speech impairments or psychological conditions be administered by those who understand the child’s first language.”

In other words, Texas’s Israel loyalty oath requirement victimizes not just Amawi, an American who is barred from working in the professional field to which she has devoted her adult life, but also the young children in need of her expertise and experience that she has spent years developing.

The anti-BDS Israel oath was included in Amawi’s contract papers due to an Israel-specific state law enacted on May 2, 2017, by the Texas State Legislature and signed into law two days later by GOP Gov. Greg Abbott. The bill unanimously passed the lower House by a vote of 131-0, and then the Senate by a vote of 25-4.

When Abbott signed the bill in a ceremony held at the Austin Jewish Community Center, he proclaimed: “Any anti-Israel policy is an anti-Texas policy.”

The bill’s language is so sweeping that some victims of Hurricane Harvey, which devastated Southwest Texas in late 2017, were told that they could only receive state disaster relief if they first signed a pledge never to boycott Israel. That demand was deeply confusing to those hurricane victims in desperate need of help but who could not understand what their views of Israel and Palestine had to do with their ability to receive assistance from their state government.

The evangelical author of the Israel bill, Republican Texas state Rep. Phil King, said at the time that its application to hurricane relief was a “misunderstanding,” but nonetheless emphasized that the bill’s purpose was indeed to ensure that no public funds ever go to anyone who supports a boycott of Israel.

At the time that Texas enacted the law barring contractors from supporting a boycott of Israel, it was the 17th state in the country to do so. As of now, 26 states have enacted such laws — including blue states run by Democrats such as New York, California, and New Jersey — while similar bills are pending in another 13 states.

This map compiled by Palestine Legal shows how pervasive various forms of Israel loyalty oath requirements have become in the U.S.; the states in red are ones where such laws are already enacted, while the states in the darker shade are ones where such bills are pending:

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Map: Palestine Legal

The vast majority of American citizens are therefore now officially barred from supporting a boycott of Israel without incurring some form of sanction or limitation imposed by their state. And the relatively few Americans who are still free to form views on this hotly contested political debate without being officially punished are in danger of losing that freedom, as more and more states are poised to enact similar censorship schemes.

One of the first states to impose such repressive restrictions on free expression was New York. In 2016, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel. “If you boycott Israel, New York State will boycott you,” Cuomo proudly tweeted, referring to a Washington Post op-ed he wrote that touted that threat in its headline.

As The Intercept reported at the time, Cuomo’s order “requires that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott. That government list is then posted publicly, and the burden falls on [the accused boycotters] to prove to the state that they do not, in fact, support such a boycott.”

Like the Texas law, Cuomo’s Israel order reads like a parody of the McCarthy era:

What made Cuomo’s censorship directive particularly stunning was that, just two months prior to issuing this decree, he ordered New York state agencies to boycott North Carolina in protest of that state’s anti-LGBT law. Two years earlier, Cuomo banned New York state employees from all nonessential travel to Indiana to boycott that state’s enactment of an anti-LGBT law.

So Cuomo mandated that his own state employees boycott two other states within his own country, a boycott that by design would harm U.S. businesses, while prohibiting New York’s private citizens from supporting a similar boycott of a foreign nation upon pain of being barred from receiving contracts from the state of New York. That such a priority scheme is so pervasive — whereby boycotts aimed at U.S. businesses are permitted or even encouraged, but boycotts aimed at Israeli businesses are outlawed — speaks volumes about the state of U.S. politics and free expression, none of it good.

Following Cuomo, Texas’s GOP-dominated state legislature, and numerous other state governments controlled by both parties, the U.S. Congress, prodded by the American Israel Public Affairs Committee, began planning its own national bills to use the force of law to punish Americans for the crime of supporting a boycott of Israel. In July of last year, a group of 43 senators — 29 Republicans and 14 Democrats — supported a law, called the Israel Anti-Boycott Act (S. 720), introduced by Democratic Sen. Benjamin Cardin of Maryland, that would criminalize participation in any international boycott of Israel.

After the American Civil Liberties Union issued a statement vehemently condemning Cardin’s bill as an attack on core free speech rights, one which “would punish individuals for no reason other than their political beliefs,” numerous senators announced that they were re-considering their support.

But now, as The Intercept reported last week, a modified version of the bill is back and pending in the lame-duck session: “Cardin is making a behind-the-scenes push to slip an anti-boycott law into a last-minute spending bill being finalized during the lame-duck session.”

The ACLU has also condemned this latest bill because “its intent and the intent of the underlying state laws it purports to uphold are contrary to the spirit and letter of the First Amendment guarantee of freedoms of speech and association.” As the ACLU warned in a recent action advisory:

While that “new version clarifies that people cannot face jail time for participating in a boycott,” the ACLU insists that “it still leaves the door open for criminal financial penalties” for anyone found to be participating in or even advocating for a boycott of Israel.

More dangerous attacks on free expression are difficult to imagine. Nobody who claims to be a defender of free speech or free expression — on the right, the left, or anything in between — can possibly justify silence in the face of such a coordinated and pure assault on these most basic rights of free speech and association.

One common misconception is that the First Amendment’s guarantee of free speech only bars the state from imprisoning or otherwise punishing people for speaking, but does not bar the state from conditioning the receipt of discretionary benefits (such as state benefits or jobs) on refraining from expressing particular opinions. Aside from the fact that, with some rare and narrow exceptions, courts have repeatedly held that the government is constitutionally barred under the First Amendment from conditioning government benefits on speech requirements — such as, say, enacting a bill that states that only liberals, or only conservatives, shall be eligible for unemployment benefits — the unconstitutional nature of Texas’s actions toward Bahia Amawi should be self-evident.

Imagine if, instead of being forced by the state to vow never to boycott Israel as a condition for continuing to work as a speech pathologist, Amawi was instead forced to pledge that she would never advocate for LGBT equality or engage in activism in support of or opposition to gun rights or abortion restrictions (by joining the National Rifle Association or Planned Parenthood), or never subscribe to Vox or the Daily Caller, or never participate in a boycott of Iran, North Korea, Venezuela, Cuba, or Russia due to vehement disagreement with those governments’ policies.

The tyrannical free speech denial would be self-evident and, in many of those comparable cases, the trans-ideological uproar would be instantaneous. As Lara Friedman, president of the Foundation for Middle East Peace, warned: “[T]his template could be re-purposed to bar contracts with individuals or groups affiliated with or supportive of any political cause or organization — from the political Left or Right — that the majority in a legislature or the occupant of a governor’s office deemed undesirable.”

Recall that in 2012, Chicago Mayor Rahm Emanuel tried to block zoning permits allowing Chick-fil-A to expand, due to his personal disagreement with the anti-LGBT activism of that company’s top executive. As I wrote at the time in condemning the unconstitutional nature of the mayor’s actions: “If you support what Emanuel is doing here, then you should be equally supportive of a Mayor in Texas or a Governor in Idaho who blocks businesses from opening if they are run by those who support same-sex marriage — or who oppose American wars, or who support reproductive rights, or who favor single-payer health care, or which donates to LGBT groups and Planned Parenthood, on the ground that such views are offensive to Christian or conservative residents.”

Those official efforts in Chicago (followed by mayors of other liberal cities) to punish Chick-fil-A due to its executive’s negative views on LGBT equality were widely condemned even by liberal commentators, who were horrified that mayors would abuse their power to condition zoning rights based on a private citizen’s political viewpoints on a controversial issue. Obviously, if a company discriminated against LGBT employees in violation of the law, it would be legitimate to act against them, but as Mother Jones’s Kevin Drum correctly noted, this was a case of pure censorship: “There’s really no excuse for Emanuel’s and [Boston Mayor Thomas] Menino’s actions. … You don’t hand out business licenses based on whether you agree with the political views of the executives. Not in America, anyway.”

The ACLU of Illinois also denounced the effort by Chicago against Chick-fil-A as “wrong and dangerous,” adding: “We oppose using the power and authority of government to retaliate against those who express messages that are controversial or averse to the views of current office holders.” That, by definition, is the only position that a genuine free speech defender can hold — regardless of agreement or disagreement with the specific political viewpoint being punished.

Last week, the ACLU’s Senior Legislative Counsel Kate Ruane explained why even the modified, watered-down, fully bipartisan version of the Israel oath bill pending in the U.S. Congress, and especially the already enacted bills in 26 states of the kind that just resulted in Amawi’s termination, are a direct violation of the most fundamental free speech rights:

This is a full-scale attack on Americans’ First Amendment freedoms. Political boycotts, including boycotts of foreign countries, have played a pivotal role in this nation’s history — from the boycotts of British goods during the American Revolution to the Montgomery Bus Boycott to the campaign to divest from apartheid South Africa. And in NAACP v. Claiborne Hardware, the Supreme Court made clear that the First Amendment protects the right to participate in political boycotts.

The lawsuit which Amawi filed similarly explains that “economic boycotts for the purposes of bringing about political change are entrenched in American history, beginning with colonial boycotts on British tea. Later, the Civil Rights Movement relied heavily on boycotts to combat racism and spur societal change. The Supreme Court has recognized [in Claiborne] that non-violent boycotts intended to advance civil rights constitute ‘form[s] of speech or conduct that [are] ordinarily entitled to protection under the First and Fourteenth Amendments.’”

Who can justify that — as a condition for working with speech-impaired and developmentally disabled children — Amawi is forced by the state to violate her conscience and renounce her political beliefs by buying products from a country that she believes (in accordance with the U.N.) is illegally and brutally occupying land that does not belong to it? Whether or not you agree with her political view about Israel and Palestine, every American with an even minimal belief in the value of free speech should be vocally denouncing the attack on Amawi’s free speech rights and other Americans who are being similarly oppressed by these Israel-protecting censorship laws in the U.S.

As these Israel oath laws have proliferated, some commentators from across the ideological spectrum have noted what a profound threat to free speech they pose. The Foundation for Middle East Peace’s Friedman, for instance, explained that “it requires little imagination to see how criminalizing Americans’ participation in political boycotts of Israel could pave the way for further infringements to Americans’ right to support or join internationally-backed protests on other issues.” She correctly described such laws as “a free speech exception for Israel.”

The libertarian lawyer Walter Olson, a senior fellow at the Cato Institute’s Center for Constitutional Studies, similarly warned: “It is not a proper function of law to force Americans into carrying on foreign commerce they personally find politically objectionable, whether their reasons for reluctance be good, bad, or arbitrary.”

National Review’s Noah Daponte-Smith last year denounced the Cardin bill seeking to criminalize advocacy of the Israel boycott as “so mind-bogglingly stupid that it’s hard to know exactly what to say about it,” adding that the bill “penalizes political beliefs and so is both unconstitutional and unconscionable.” The conservative writer continued: “The senators who currently support it should be, quite frankly, ashamed of themselves; they have lost sight of one of the founding principles of American government, allowing it to be overshadowed by the spectral world of the Israeli–Palestinian dispute.”

Meanwhile, though, there is an entire pundit class that has made very lucrative careers from posing as defenders and crusaders for free speech — from Jonathan Chait, Bill Maher, and Bari Weiss to the glittering renegades of the intellectual dark web — who fall notoriously silent whenever censorship is aimed at critics of Israel (there are some rare exceptions, such as when Chait tweeted about Cardin’s bill: “BDS is awful, but this bill criminalizing it sounds insane and unconstitutional,” and when Weiss criticized Israel for barring a Jewish-American boycott advocate from entering).

CNN’s recent firing of Marc Lamont Hill due to his pro-Palestine speech, and the threats from the chair of Temple University’s Board of Trustees to fire Hill from his tenured position over his contempt for the views expressed in that speech, produced not a word of protest from this crowd. The same was true of the University of Illinois’s costly decision to rescind a teaching offer to Palestinian-American professor Steven Salaita for the thought crime of condemning Israel’s bombing of Gaza.

But as The Intercept has repeatedly documented, the most frequent victims of official campus censorship are not conservative polemicists but pro-Palestinian activists, and the greatest and most severe threat posed to free speech throughout the west is aimed at Israel critics — from the arresting of French citizens for the “crime” of wearing “Boycott Israel” T-shirts to Canadian boycott activists being overtly threatened with prosecution to the partial British criminalization of the boycott of Israel.

Put simply, it is impossible to be a credible, effective, genuine advocate of free speech and free discourse without objecting to the organized, orchestrated, sustained onslaught of attacks on the free speech and free association rights undertaken specifically to protect the Israeli government from criticism and activism. Self-professed free speech defenders who only invoke that principle when their political allies are targeted are, by definition, charlatans and frauds. Genuine free speech advocates object to censorship even when, arguably especially when, the free speech rights of their political adversaries are assaulted.

Anyone who stands by silently while Bahia Amawi is forced out of the profession she has worked so hard to construct all because of her refusal to renounce her political views and activism — while the young children she helps are denied the professional support they need and deserve — can legitimately and accurately call themselves many things. “Free speech supporter” is most definitely not one of them.

Lawmakers Consider Adding Measure Protecting Israel

Senator Richard C. Shelby, chairman of the Appropriations Committee, has objected to unrelated bills clinging to his panel’s work. (Erin Schaff for The New York Times)

Emily Cochrane, New York Times, December 17, 2018

WASHINGTON — Just days away from a partial government shutdown, lawmakers are weighing adding a contentious measure to a stymied spending package that would keep American companies from participating in boycotts — primarily against Israel — that are being carried out by international organizations.

Critics of the legislation, including the American Civil Liberties Union and a number of Palestinian rights organizations, say the bill infringes on First Amendment rights and is part of a broader effort on the state and federal levels to suppress support for efforts to boycott, divest investments from and place sanctions on Israel, a movement known as B.D.S.

“The crux of it is silencing one side of the Israel-Palestine conflict,” said Manar Waheed, the senior legislative and advocacy counsel for the A.C.L.U. “Anything that creates a penalty for any First Amendment-related activities is an infringement of the First Amendment.”

The bill, known as the Israel Anti-Boycott Act, is one of several pieces of pet legislation that lawmakers are advocating in the final days of the session, hoping to add to a package of seven spending bills that need to pass to keep the government fully funded past Friday. President Trump has said repeatedly that he will not sign any spending bills unless they contain at least $5 billion to begin building a wall on the border with Mexico.

As the package languishes, lawmakers see an opportunity to give their bills life before the current Congress ends this month. Other pieces of legislation that could be added include the so-called Blue Water Bill, which would allow Vietnam-era sailors who say they were exposed to Agent Orange as they served offshore to receive the same health benefits as those who were exposed on land. Other lawmakers are seeking to reauthorize the Violence Against Women Act, which was extended with a brief stopgap spending bill two weeks ago.

But so far, neither the White House nor congressional Democrats have signaled that they are willing to negotiate on wall funding, so none of the bills have a moving vehicle to latch onto.

Senator Richard C. Shelby, Republican of Alabama and chairman of the Senate Appropriations Committee, told reporters that a decision from Mr. Trump over how to handle the shutdown was imminent. But by Monday evening, nothing had emerged.

Mr. Shelby has objected to unrelated bills clinging to his committee’s work, arguing that their inclusion could be another hindrance to final passage. But among lawmakers eager to notch one more legislative victory in a historically unproductive session of Congress, there is still hope that a few more bills could slip through.

“People are looking for whatever vehicle is available that is moving out the door — there isn’t much left,” said Sue Walitsky, a spokeswoman for Senator Benjamin L. Cardin, Democrat of Maryland and a sponsor of the Israel Anti-Boycott Act. “We’re counting down days and hours.”

The act would expand amendments first added to the Export Administration Act in 1977, initially to protect American companies from the Arab League boycott of Israel.

Supporters of the measure dispute critics who say it would stifle pro-Palestinian activism.

“These kinds of First Amendment issues were not raised in ’77,” said Stuart E. Eizenstat, the chief White House domestic policy adviser during the Carter administration when the amendments were negotiated. “Since it’s come up here, in many ways, this legislation is stronger in protecting First Amendment rights because it explicitly indicates that political views are protected.”

The bill sponsored by Mr. Cardin and Senator Rob Portman, Republican of Ohio, was conceived after the United Nations Human Rights Council announced that it would create a database of companies that have business in the West Bank and the Gaza Strip, whose governance and status have been in dispute since the Six Day War in 1967.

“From our perspective, we have to protect U.S. companies from being put in a position that could harm them,” Ms. Walitsky said.

The bill, which would impose penalties on boycott participants, has already been modified after complaints from the A.C.L.U., which does not publicly take a stance on the Israeli-Palestinian conflict, about the infringement on First Amendment rights. Supporters of the legislation say that the language does not prevent companies and individuals, independent of direction from foreign countries or international agencies, from announcing their intent to boycott Israel.

“Our bipartisan legislation is a direct response to highly selective and discriminatory efforts to isolate Israel, such as those by the U.N. Human Rights Council,” Mr. Portman said in a statement.

But the changes, which most notably reduce the most significant penalty for participation to a fine of up to $1 million, were not seen as sufficient by critics, who scorned efforts to wrap a final version into a spending package without public debate.

If the legislation fails to pass in the final days of this Congress, it will have to be introduced with a Democratic House majority that includes a number of new members who have publicly endorsed efforts to boycott Israel.

“It’s why we live in a democracy,” said Samer Khalaf, the president of the American-Arab Anti-Discrimination Committee. “This sort of sneaky inclusion of it into the omnibus bill, that’s what gives a better chance of it succeeding.”

For Palestinian rights activists, it is also seen as part of a broader national effort to counter their opposition to Israeli policies. More than 20 laws have been passed in states that curb the breadth of efforts to boycott and place sanctions on Israel.

On Monday, Bahia Amawi, a speech pathologist who spent nearly a decade working in elementary schools in a Texas school district, filed a lawsuit, along with the Council on American-Islamic Relations, against a Texas law. She said that her First Amendment rights had been violated after she was required to sign paperwork promising that she “does not” and “will not” engage in a boycott of Israel.

The A.C.L.U. and its Texas branch plan this week to file a separate challenge to the law, on behalf of four Texans who have either lost opportunities because of the certification or felt they lost their First Amendment rights by signing it.

“It’s an attack on my right to protest and my constitutional rights,” Ms. Amawi said. “I’m sure it’s going to be a tough road, but I’m optimistic.”

Correction: Because of an editing error, an earlier version of this article referred imprecisely to the status of Gaza. Israel withdrew from Gaza and does not consider it occupied. Hamas, which governs Gaza, does consider it occupied because Israel still controls most of its borders.

Curbing Speech in the Name of Helping Israel

A Senate bill aims to punish those who boycott Israel over its settlement policy. There are better solutions.

Senator Ben Cardin speaking at the J Street National Conference in April. (Michael Brochstein/Sipa, via Associated Press)

The New York Times Editorial Board, December 18, 2018

One of the more contentious issues involving Israel in recent years is now before Congress, testing America’s bedrock principles of freedom of speech and political dissent.

It is a legislative proposal that would impose civil and criminal penalties on American companies and organizations that participate in boycotts supporting Palestinian rights and opposing Israel’s occupation of the West Bank.

The aim is to cripple the boycott, divestment and sanctions movement known as B.D.S., which has gathered steam in recent years despite bitter opposition from the Israeli government and its supporters around the world.

The proposal’s chief sponsors, Senator Ben Cardin, a Maryland Democrat, and Senator Rob Portman, an Ohio Republican, want to attach it to the package of spending bills that Congress needs to pass before midnight Friday to keep the government fully funded.

The American Israel Public Affairs Committee, a leading pro-Israel lobby group, strongly favors the measure.

J Street, a progressive American pro-Israel group that is often at odds with Aipac and that supports a two-state peace solution, fears that the legislation could have a harmful effect, in part by implicitly treating the settlements and Israel the same, instead of as distinct entities. Much of the world considers the settlements, built on land that Israel captured in the 1967 war, to be a violation of international law.

Although the Senate sponsors vigorously disagree, the legislation, known as the Israel Anti-Boycott Act, is clearly part of a widening attempt to silence one side of the debate. That is not in the interests of Israel, the United States or their shared democratic traditions.

Critics of the legislation, including the American Civil Liberties Union and several Palestinian rights organizations, say the bill would violate the First Amendment and penalize political speech.

The hard-line policies of Israel’s prime minister, Benjamin Netanyahu, including expanding settlements and an obvious unwillingness to seriously pursue a peace solution that would allow Palestinians their own state, have provoked a backlash and are fueling the boycott movement.

It’s not just Israel’s adversaries who find the movement appealing. Many devoted supporters of Israel, including many American Jews, oppose the occupation of the West Bank and refuse to buy products of the settlements in occupied territories. Their right to protest in this way must be vigorously defended.

The same is true of Palestinians. They are criticized when they resort to violence, and rightly so. Should they be deprived of nonviolent economic protest as well? The United States frequently employs sanctions as a political tool, including against North Korea, Iran and Russia.

Mr. Cardin and Mr. Portman say their legislation merely builds on an existing law, the Export Control Reform Act, which bars participation in the Arab League boycott of Israel, and is needed to protect American companies from “unsanctioned foreign boycotts.”

They are especially concerned that the United Nations Human Rights Council is compiling a database of companies doing business in the occupied territories and East Jerusalem, a tactic Senate aides say parallels the Arab League boycott.

But there are problems with their arguments, critics say. The existing law aimed to protect American companies from the Arab League boycott because it was coercive, requiring companies to boycott Israel as a condition of doing business with Arab League member states. A company’s motivation for engaging in that boycott was economic — continued trade relations — not exercising free speech rights.

By contrast, the Cardin-Portman legislation would extend the existing prohibition to cover boycotts against Israel and other countries friendly to the United States when the boycotts are called for by an international government organization, like the United Nations or the European Union.

Neither of those organizations has called for a boycott, but supporters of Israel apparently fear that the Human Rights Council database is a step in that direction.

Civil rights advocates, on the other hand, say that anyone who joins a boycott would be acting voluntarily — neither the United Nations nor the European Union has the authority to compel such action — and the decision would be an exercise of political expression in opposition to Israeli policies.

Responding to criticism, the senators amended their original proposal to explicitly state that none of the provisions shall infringe upon any First Amendment right and to penalize violators with fines rather than jail time.

But the American Civil Liberties Union says the First Amendment wording is nonbinding and “leaves intact key provisions which would impose civil and criminal penalties on companies, small business owners, nonprofits and even people acting on their behalf who engage in or otherwise support certain political boycotts.”

While the sponsors say their bill is narrowly targeted at commercial activity, “such assurances ring hollow in light of the bill’s intended purpose, which is to suppress voluntary participation in disfavored political boycotts,” the A.C.L.U. said in a letter to lawmakers.

Even the Anti-Defamation League, which has lobbied for the proposal, seems to agree. A 2016 internal ADL memo, disclosed by The Forward last week, calls anti-B.D.S. laws “ineffective, unworkable, unconstitutional and bad for the Jewish community.”

In a properly functioning Congress, a matter of such moment would be openly debated. Instead, Mr. Cardin and Mr. Portman are trying to tack the B.D.S. provision onto the lame-duck spending bill, meaning it could by enacted into law in the 11th-hour crush to keep the government fully open.

The anti-B.D.S. initiative began in 2014 at the state level before shifting to Congress and is part of a larger, ominous trend in which the political space for opposing Israel is shrinking. After ignoring the B.D.S. movement, Israel is now aggressively pushing against it, including branding it anti-Semitic and adopting a law barring foreigners who support it from entering that country.

One United States case shows how counterproductive the effort is. It involves Bahia Amawi, an American citizen of Palestinian descent who was told she could no longer work as an elementary school speech pathologist in Austin, Tex., because she refused to sign a state-imposed oath that she “does not” and “will not” engage in a boycott of Israel. She filed a lawsuit this week in federal court, arguing that the Texas law “chills constitutionally protected political advocacy in support of Palestine.”

Any anti-boycott legislation enacted by Congress is also likely to face a court challenge. It would be more constructive if political leaders would focus on the injustice and finding viable solutions to the Israeli-Palestinian conflict rather than reinforcing divisions between the two parties and promoting legislation that raises free speech concerns.