Clarity on Israel Anti-Boycott Act

08/10/2017 09:58 pm ET

The Israel Anti-Boycott Act was introduced to reinforce bipartisan consensus that boycotting Israel is inimical to U.S. foreign policy interests. The Act simply extends existing U.S. law prohibiting participation in boycotts led by foreign governments against Israel to include boycotts led by international governmental organizations such as the United Nations and the European Union.

The Act should hardly be controversial; the current law passed in 1977. Yet three objections have been raised: that the new law would infringe on free speech, that the new law is confusingly written, and that the new law extends the prohibition to goods manufactured in the West Bank.

The American Civil Liberties Union believes that the law unconstitutionally impairs free speech, but the ACLU is wrong. Both this bill and existing law prohibit specific commercial conduct, not free speech. Any person and any company is free to boycott Israel and to advocate for boycotts of Israel under current law and the proposed law. But cooperation with foreign governments, and under the new law, with international governmental organizations, is prohibited. The same conduct that would be prohibited if done independently of a foreign government is prohibited if done at the behest of a foreign government. Intent matters; intent is a common element of criminal conduct, including hate crimes.

The current prohibition against cooperating with foreign governments to boycott Israel has withstood First Amendment challenges, and so has hate crime legislation. If current law is constitutional, then so is the proposed law.

Some have argued that the new law is hard to understand because it includes numerous cross-references, deletions, and additions. But that is how laws are written, and how they have to be written to fit into existing statutory framework. To suggest that the law was written this way to make it hard to follow reflects either disingenuity or ignorance of the legislative process. Aside from the sloppiness of its legal analysis, perhaps the most disturbing part of the ACLU’s position is its benign description of the Boycott, Divestment, and Sanctions movement, which is a close paraphrase from the description on the BDS website. The BDS movement seeks to delegitimize Israel and advocates for policies that would effectively eliminate Israel as a Jewish state. One would have thought that intellectual honesty would have compelled the ACLU to at least mention the bipartisan concerns about BDS that motivated the Israel Anti-Boycott Act, but one would have been wrong.

The proposed legislation covers boycotts of goods manufactured on the West Bank. But one can vigorously support a two-state solution and see settlements as an obstacle to peace, as I do, and still understand why boycotts of the West Bank are counterproductive. In practice, boycotts of West Bank goods will hurt Israelis and Palestinians on both sides of the green line. More important, those who advocate boycotting West Bank goods assume that all that is needed to reach a two-state solution is pressure on Israel.

Jews and Palestinians are two peoples, each with claims to all of Israel and all of the West Bank. A two-state solution will require both Jews and Palestinians to relinquish their claims to land that they believe is rightfully theirs. Peace will only occur when both sides recognize and act on this reality. Putting pressure only on Israel, as if Israel can unilaterally solve this problem, will only stiffen Israeli resistance and encourage Palestinian intransigence. The path to peace lies in bringing the two sides together and building trust, not in pressuring only one side, as if only that side is wrong and as if that side can act without a partner willing to reciprocate. And yet under the proposed legislation, any American would be free to advocate for and participate in just such a boycott. All that would be prohibited is commercial conduct in compliance with foreign-organized boycotts of Israel.

By including within its purview the West Bank, the Israel Anti-Boycott Act does not legitimize West Bank settlements or represent a change in U.S. policy; the bill itself provides that it shall not “be construed to alter the established policy of the United States or to establish new United States policy concerning final status issues associated with the Arab-Israeli conflict, including border delineation, that can only be resolved through direct negotiations between the parties.”

One can legitimately ask if the proposed legislation could be drafted more clearly or to what extent it responds to a real threat. Those issues can and should be debated in Congress. But the progressive and peace communities should not oppose this bill based on the specious grounds that have thus far been advanced.

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