Don’t make us choose: Fighting BDS vs. free speech

The very first bill introduced by a majority party in Congress each year sends an important message about what its legislative priorities are.

So, what is the Senate Republicans’ first bill for 2019?  – The Strengthening America’s Security in the Middle East Act or S-1.

Title I of the Bill would:
i) Expand U.S.-Israel defense cooperation by funding cooperative efforts in the area of anti-missile defense. (Not a bad thing, cooperation is always a plus.)
ii) Set the current foreign military assistance ceiling of $3.3 billion a year as a future floor. (Bigger is better, right?)
iii) Extend the timeline for the provision of U.S. loan guarantees, authorize conditional transfer of precision guided ordnance to Israel, permit the conditional export of controlled weapons from Israel. (That should make the neighborhood safer.)
iv) Enhance cooperation with NASA and the Israel Space Agency. (Up, up, and away.)
v) Integrate Israeli participation in foreign aid activities in developing nations. (The U.S. wants Israel to arrange a meet and greet)
vi) Initiate cooperation in anti-drone technologies. (Start-Up Nation all over again.)

Title II and Title III are equally positive in their direction for progress in the Middle East
Title II expands cooperation with Jordan in the area of security, economic development, and aid for displaced Syrian refugees. (also a good thing)
Title III would establish sanctions against the government of Syria and people who provide technical support for Syria. (And don’t they deserve it.)

Most of these provisions are likely to gain considerable support in Congress. However, buried at the very end of the bill is Title IV — and it is there that we find the fly in the ointment. This section is titled “Combating BDS Act of 2019.” If this bill passes into law, it would make supporting BDS a federal crime. But the actual provisions extend beyond BDS and raise both political and constitutional issues.

As of this writing, 26 states already have passed local laws banning their employees and contractors from boycotting Israel. This includes blue states like California and New York, red states like Texas and Alabama, and all six swing states that flipped from Obama in 2012 to Trump in 2016.

Supporters of the Senate bill argue that the U.S. needs to take several bold actions to further help our friends (in this case Israel and the West Bank) and punish our enemies (in this case not Russia or North Korea). Opponents, on the other hand, counter that the bill’s provisions both expand and protect state and local governments that already punish Israel boycotters. They claim that this bill threatens individuals’ freedom of speech rights as protected by the Constitution.

The bill encourages additional states to adopt the very same anti-boycott laws that two federal courts already have blocked as unconstitutional on First Amendment grounds. The legislation, like the state anti-boycott laws it condones, sends a message to Americans that they can and will be penalized if they dare to disagree with their government.

In recent months, nine states have passed laws to deny money to people or organizations that engage in “a commerce-related or investment-related boycott, divestment, or sanctions activity in the course of interstate or international commerce that is intended to penalize, inflict economic harm on, or otherwise limit commercial relations with Israel or persons doing business in Israel or Israeli-controlled territories (emphasis added) for purposes of coercing political action by, or imposing policy positions on, the Government of Israel.” Not state employees, not contractors, private citizens, and non-governmental organizations.

It is clear that these local actions have foreign policy implications, implications that are a federal government responsibility and not an arena where state governments should tread. The point of the bill in the Senate is to eliminate the very possibility of the State Department or the federal government nullifying the state laws.

Boycott activity against the State of Israel is not new. Back in December of 1945, the Arab League sought to cut all business ties with the pre-state Jewish pioneers and pressured multinational companies to cease doing business in Israel or with Israeli representatives. For example, for years, there was no Pepsi or any Japanese cars (except Subaru) available for sale in Israel. Peace treaties with Egypt in 1979, the Palestinian Authority in 1993, and Jordan in 1994 officially ended the boycott activity of these states as part of the conditions of the treaties. Today, only Syria, Lebanon, and Iran back a primary boycott of Israel and most Arab states feel free to trade and deal with Israel directly

In 2005, however, 170 Palestinian NGOs scattered around the world organized a Boycott, Divestiture, Sanctions campaign against Israel, targeting Israel, Israeli companies, and Israeli academic institutions and professors. The Israeli government, pro-Israel groups around the world, and Zionist organizations quickly mobilized to oppose this BDS campaign.

The authors have reviewed the history of BDS and explained our strong opposition to it in a previous column. It is clear to us that the blanket targeting of Israel and Israelis reveals a broader motivation for BDS, not as a protest against particular policies but as an effort to delegitimize Israel itself. Even if it were only intended to target particular policies, we find it misguided and counterproductive, broadly unifying Israelis against it and giving cover to Israelis, who exploit it as a reason to abandon the two state solution and annex the West Bank.

However, S-1 is not meant to target BDS alone. It also is designed to sanction protests that specifically target activity in the occupied territories outside the State of Israel. In doing so, it effects a reversal of U.S. policy and effectively supports an indefinite occupation by the federal government of the United States.

It is important to note that the terms of these state laws that S-1 is designed to shield can result in the very real threat that public employees and contractors who do not disavow opposition to the occupation could be terminated. Recipients of state financed or guaranteed loans, would lose those loans. The terms of these state laws effectively deny citizens their First Amendment rights.

This is not a hypothetical concern. Recently an American Muslim speech therapist in Austin, Texas, named Bahia Amawi was told that she could no longer work in the Texas public school system unless she signed an oath promising that she does not now and will not in the future boycott Israel or “an Israeli-controlled territory”. According to the Texas law, Amawi is perfectly free to engage in any political activism against the United States, 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. In other words, Texas’s anti-BDS bill doesn’t only impinge on the free speech rights of U.S. citizens. In a bizarre attempt to “stand with Israel,” it turns every potential contractor with the state of Texas literally into that anti-Semitic canard of dual loyalty. Texas citizens now are expected to be more loyal to Israel than they are to the United States insofar as they may say and do things to their own country that they may not engage in vis-à-vis Israel. But we will get back to that later.

First let us again differentiate between Israel proper and the West Bank and Gaza. In 1967 the armies of Egypt, Jordan, and Syria gathered on Israel’s borders, prepared to drive Israel into the sea. Israel’s stunning victory and survival resulted in the control of a portion of its biblical homeland that until then had rested outside its internationally recognized borders. On this land was (and still is) a large non-Jewish population. The consensus of Israel’s political leaders at the time waas to use the West Bank and Gaza as leverage for a peace agreement with the Arab world — land for peace. Sadly, the Arab and Palestinian leadership of the time resisted. At the same time, the Jewish settler movement, which combines messianic extremism and national chauvinism, began to seize land within the West Bank. The Israeli political leadership at first acquiesced to and later aided in that project. The goal of the settler movement was then and remains today to put facts on the ground that would make a land-for-peace deal impossible and to retain the West Bank under permanent Israeli control.

Tucked in between the Jordan River and the Mediterranean Sea, scattered across Israel, the West Bank, and Gaza, are approximately 13 million people. This crowded population is split roughly in half between Jewish and non-Jewish residents. The clear and undisputed demographic trends are such that the non-Jewish population soon will grow to become the majority — according to some surveys it already has. Israel can maintain control of this entire area only in one of two ways. The first is to continue its occupation indefinitely. This solution has been described by Prime Minister Netanyahu as “managing the situation.” That would mean keeping the Palestinians as non-citizen residents under military rule. The second option would be to annex the West Bank, making it part and parcel of the State of Israel. If it were to grant the residents of this now annexed land citizenship, the world could watch as these new citizens simply voted away all of the state’s Jewish character, eliminating the Jewish homeland and adding one more Arab state to the many that already exist. The second would be if Israel were to annex the territory without granting citizenship to its population. If that were to happen, we would watch the death of Israel as the “only democracy in the Middle East.” There are parties in the governing coalition now already discussing this second option as a viable and preferred solution. The logic of land for peace and a two-state solution, however, was to establish a stable framework through which a democratic Jewish State could continue to flourish and thrive.

That is why the two-state solution also has been U.S. foreign policy for decades. The Senate Bill S-1 specifically rolls together both Israel proper and the territories. It jettisons the policy in preference for an indefinite Israeli control of the occupied territories as the US position. This is a policy of permanent instability involving an occupied people that will soon comprise a majority of the population in the region.

But let’s get back to Bahia Amawi. The choice she was presented with was to have her free speech rights suspended only when it comes to Israel and its settlements in the West Bank — or be denied employment by the state of Texas. If Senate Bill S-1 becomes law, then this is a choice with which all Americans will be presented — suspend your free speech when it comes to Israel or face financial and commercial penalties.

It’s a choice that American Jews must resust. This trend, turning pro-Israel advocacy into a weapon to undermine fundamental American values and rights protected in our own Constitution, is dangerous. It is bad for America, it is bad for freedom, and in the end it will be bad for the Jews. Bafflingly, we see such efforts supported and defended by leaders who otherwise claim the mantle of champions of American values. AIPAC, the Anti-Defamation League, and most Jewish community organizations remain fully on board in supporting and promoting such legislation. Indeed, despite the court challenges and opposition from free speech watchdogs, the legislative campaign shows no signs of abating.

And so there will be more cases like Amawi’s. For example, the New Orleans City Council adopted a resolution calling for a review of the city’s investments and contracts. The clearly stated goal of this review was to bring the city in line with its values as laid out in the resolution: New Orleans “has social and ethical obligations to take steps to avoid contracting with, or investing in, corporations whose practices consistently violate human rights, civil rights, labor rights, or corporations whose practices egregiously contract efforts to create a prosperous, educated, healthy and equitable society.”

It was no secret that Palestinian rights activists, including those advocating for BDS against Israel, supported and even helped draft the New Orleans resolution. Because of that, even though the resolution in no way singled out or even mentioned Israel or BDS, it was swiftly denounced as a stealth attack on Israel.

Groups like the Anti-Defamation League pressured the Council to rescind it, and a prominent New Orleans rabbi, Ed Cohn, alleged that the resolution “cleverly masqueraded as a high-minded civic statement designed to prevent human rights abuses…. It sounded so good. It took no time, however, to see the deception.” It looks as if the ADL and the rabbi truly believe that Israel doesn’t hold up to the standards that New Orleans sees as basic and just.

This reaction highlights a painful truth. Going forward, any call for the defense of human rights, if applied universally, today will inevitably raise questions about Israel, and especially the policies associated with Israel’s control of the West Bank, East Jerusalem, Gaza, and the settlement enterprise that they support. The only way to insulate Israel from such questions is to either kill such calls outright, or to explicitly exempt Israel from the same rules and standards that apply to the rest of the world.

American defenders of Israel often have condemned critics, and especially BDS advocates, for unfairly singling out Israel for special scrutiny or holding it to a higher standard than other countries. Ironically, many of these same defenders of Israel condemned the New Orleans resolution for doing precisely the opposite. They are arguing, in effect, that when talking about human rights, it is unfair to subject Israel to the same scrutiny as the rest of the world. They are suggesting that failing to hold Israel to a different, a lower standard, than the rest of the world, when it comes to human rights, is a new form of anti-Israel and therefore anti-Semitic behavior.

Sadly, the New Orleans City Council gave in to pressure and rescinded its human rights resolution. In so doing, it acquiesced to a definition of being pro-Israel that demands the sacrifice of respect for universal values, the rejection of global standards of human rights, and the delegitimization of international law.

With U.S. values and rights threatened at local, state, and federal levels, politicians and groups like the ADL are betraying their own values and principles. They are guilty of throwing traditional American values overboard in defense of Israel. In so doing, they are weakening support for Israel among Americans who are repulsed by the notion that support for Israel demands the sacrifice of the values and rights that are at the core of what it means to be both Jewish and American.

And so was born Senate Bill S-1, which somehow makes it un-American to hold Israel to a universal standard of decency — making opposition to permanent occupation of the West Bank not only anti-Israel but anti-American.

As a non-violent campaign of protest, BDS’s stated goals are ending Israel’s occupation of the Palestinians, ensuring equal rights for Palestinian citizens of Israel, and securing the right of return for Palestinians who fled in 1948. It is this last goal that is the most dangerous for Israel’s future as a Jewish state. Just like annexing the West Bank, it would make Israel a Muslim-majority.

Others claim that BDS holds Israel to a higher standard than other problematic states, and thus is inherently anti-Semitic.

But, as we have learned from the Texas oath and the New Orleans resolution, blanket opposition to BDS implies that Israel be held to a different standard, its own, unique, protected standard. By demanding that Israel alone be treated to its own oath of loyalty, those who promote anti-BDS laws in support of Israel are actually demanding Israel be held to a lower standard.

This is not to say that BDS is worthy of support. We, like many Jews, find BDS disingenuous and dangerous to the future of the Jewish state.

Even worse, Palestinian activists have been hurt by the prohibition against normalization imposed by the BDS movement, making solidarity and cross-border cooperation between Israelis and Palestinians that much harder to achieve. And by including in its goals an impossible one — the right of Palestinian return — BDS has undermined important and achievable goals of ending the occupation and equal rights for Palestinians, as well as undermining the work being done by Palestinian activists on the ground and bringing real peace to the region.

In making S-1 a bill that supports indefinite occupation, the bill’s sponsors also preclude any nuanced anti-BDS action, which may be the most effective way to combat BDS on college campuses where the BDS debate is strongest.

As bad as BDS is, making it illegal on pain of a state or federal penalty for an individual to organize over what they perceive to be an injustice is a grave mistake. Abridging First Amendment rights is dangerous. Once it starts, where will it end? Freedom of speech, press, and association are rights we Americans hold dear, and something we seem to recognize as crucial to our identity as a nation.

But the goal of the S-1 sponsors, and its timing as the first bill of the year, is not just to block BDS but also to increase the polarization in our country, polarization between Democrats and Republicans, between Blue and Red, between liberal and conservative, and to fracture our own Jewish community even more. That is why Senate Bill S-1 was the first bill presented in the Senate. It has been written in a way to divide us, to make us choose between support of Israel and American free speech values; between protecting Israelis from boycott and accepting permanent occupation. And it has been presented now to force the issue. To make people take sides in what traditionally had been bipartisan support for Israel.

They may succeed. At what cost?