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.