Congress should think twice on the Israel Anti-Boycott Act

In July, Democratic Sen. Ben Cardin of Maryland and Republican Sen. Rob Portman of Ohio introduced a bill in the Senate, the “Israel Anti-Boycott Act.” A similar bill was placed before the House of Representatives. Both pieces of legislation enjoyed wide bipartisan support. But after the American Civil Liberties Union issued a letter condemning these bills as presenting significant challenges to free speech, some Democrats started to back off from their support.

This withdrawal of support sent shockwaves through the New York Post, which declared that “In the Democratic Party, reliable support for Israel looks to be a thing of the past.” To say that is an overstatement barely scratches the surface.

In its reporting on the apparent Democratic “retreat” from support of Israel, Haaretz provided a more realistic picture. It quoted Sen. Elizabeth Warren (D-Mass.) as saying, “I think the boycott is wrong, but I think outlawing protected free speech activity violates our basic constitution.” According to the same report, Sen. Kristin Gillibrand said that she “supports the bill’s main objective of fighting BDS but would only support the bill if its language was changed to avoid legal ambiguity.”

{mosads}One has to wonder why a U.S. senator would even pause to ponder whether or not “outlawing protected free speech activity violates our basic constitution.” And what does Gillibrand have in mind as a legitimate way the Senate should, and could, “fight BDS,” which after all is engaged in perfectly legal forms of protest? Before we go too far in celebrating acts of conscience and decency on the part of those members of Congress who might now have doubts about the anti-boycott acts, we need to get clarity on what exactly is going on.

The fight to protect free speech, as essential and laudable as it is, is only one part of the picture. What is lost if we focus solely on free speech rights are the human rights violations that would be obscured and blanketed by the anti-boycott bills. And these rights properly belong to the Palestinians. In short, these Democrats are concerned with protecting the free speech rights of Americans; they have little or no concern about the very aim of the boycotts, which is to secure the human rights of Palestinians suffering under the repressive regime of the state of Israel.

The bills are targeting the movement to boycott, divest from and sanction (BDS) Israel. Launched in 2005, BDS is a non-violent, human-rights-based movement created with the endorsement of more than 170 Palestinian civil organizations. It takes inspiration from historical boycott efforts in Palestine, as well as from the South African anti-apartheid movement. Although some of its critics accuse it of being anti-Semitic, its proponents argue that the movement is focused on drawing attention to specific violations of rights, not ethnic or religious identities. The movement’s basis in human rights is one of the reasons why it has gained such large international support, from academic organizations, trade unions, church groups, and others worldwide.

And that success is precisely why Benjamin Netanyahu has declared BDS a “strategic threat,” and why the American Israel Public Affairs Committee (AIPAC) has targeted it. Drafted by AIPAC, the new proposed legislation expands the “Export Administration Act” of 1979 and the Export-Import Bank Act of 1945. It does so in a manner in which the bills’ attack on international human rights is patently clear. As I have written elsewhere:

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.

So, besides making illegal any positive response to a “foreign state’s” call not to do business with Israel, the amended legislation now makes it illegal to behave in accordance to U.N. declarations. As the ACLU letter makes clear, the bills make no distinction between doing business with Israel and doing business with companies that are part of Israel’s illegal occupation. So any individual or organization (church group, trade union, academic organization, etc.) or business entity that follows international human rights dictates and refuses to buy products from businesses in the Occupied Palestinian Territories, could be subject to prosecution. In effect, the bills therefore make following international human rights law and other conventions illegal.

And let us not forget that although someone might well prevail in a lawsuit brought against them under this legislation, the bills send such a chilling message that many might decide not to even entertain not doing business with Israel. And that is the whole point of these bills.

Perhaps we should not be surprised that U.S. senators would not think past their constituents’ free speech rights. But we should not think that because they have the decency to withdraw their support for these bills they therefore have the moral courage to see the larger human rights issues at hand when it comes to securing rights for Palestinians. For that to happen, it will take continued and concerted grassroots action.

David Palumbo-Liu (@Palumboliu) is a professor in Comparative Literature and, by courtesy, of English at Stanford University.

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