Biden-backed anti-terror law complicates US-Palestinian ties

The State Department is developing a policy of engagement toward the Palestinian Authority (PA). The shift comes as the Palestinians plan for legislative elections on May 22 — their first since 2006 — in which the terrorist group Hamas appears likely to participate. While the Biden administration has not acknowledged it yet, congressionally imposed restrictions that President Biden himself helped author as a senator may complicate his administration’s efforts to restore diplomatic contacts. The provision of financial aid may be even more complicated.

The political conditions within the PA today are eerily similar to those prior to the January 2006 Palestinian Legislative Council (PLC) elections, which pitted the ruling Fatah party of President Mahmoud Abbas against the Iran-backed terrorist group Hamas. The election yielded Hamas a majority in the PLC.

The results sparked a crisis.

The United States, European Union, and Canada suspended their assistance to the PA in February 2006. This lasted until the summer of 2007, when Hamas launched a military offensive in the Gaza Strip. Hamas took control of the coastal enclave, but the conflict ultimately left the PA government entirely in Abbas’ hands. U.S. relations with the West Bank were guided once again by previous policies, while the United States and European Union developed mechanisms to deliver aid in Gaza to circumvent Hamas-controlled entities.

Congress responded to Hamas’ electoral victory by passing the Palestinian Anti-Terrorism Act of 2006 (PATA), which became law that December. Biden was an original co-sponsor of the legislation, and the Senate Foreign Relations Committee, then under his chairmanship, approved it unanimously. Importantly, PATA prohibits U.S. assistance to the PA unless the administration certifies that “no ministry, agency, or instrumentality of the Palestinian Authority is effectively controlled by Hamas.”

There are certain caveats embedded in this law. It permits assistance to the PA, even if Hamas is a participant, so long as the PA fulfills several conditions. First, it must publicly acknowledge Israel’s right to exist. Moreover, it must adhere to all previous agreements and understandings with the United States, Israel, and the international community. Finally, if Hamas were to be part of the government, it would have to cease operating as a terrorist organization, cooperate with Israel’s security services, halt anti-American and anti-Israel incitement, and ensure democracy and financial transparency. Until now, Hamas has provided scant indication of its intention to follow through on any of these conditions.

In addition, PATA stipulates that so long as Hamas is part of the government, the United States will restrict assistance to PA-controlled areas and even impose visa sanctions on PA representatives and their associates. The law allows for exceptions to these sanctions if the PA president and his subordinates are not affiliated with Hamas or another foreign terrorist organization (FTO). Exceptions can also be made for PLC members who are not members of Hamas or another FTO.

PATA is not the only legislation that may complicate the Biden administration’s efforts to re-engage with the Palestinians. The Taylor Force Act of 2018, named after an American stabbed to death in 2016 by a member of Hamas, prohibits assistance to the PA unless and until Palestinian officials cease payments to Palestinians in Israeli jails who have been convicted of terrorism. Congress also passed the Anti-Terrorism Clarification Act of 2019 to ensure that American victims of attacks by the Palestine Liberation Organization or other Palestinian organizations could secure damages against the PA.

As of now, the United States has not offered official guidance on the scheduled Palestinian elections, even as Hamas, the Popular Front for the Liberation of Palestine, and convicted terrorist Marwan Barghouti of the Fatah-affiliated Tanzim militia appear set to participate. Polling indicates that Barghouti has momentum and neither Fatah nor Hamas will win the May elections outright. This could create conditions for a power-sharing agreement that brings Hamas or other terrorist entities into a government with Fatah.

Inexplicably, as a clearer political picture comes into focus, the State Department and the White House continue to remain silent — risking an outcome similar to that of the ill-fated elections of 2006.

With a political crisis looming in the West Bank and Gaza, the Biden administration should publicly commit to follow both the letter and spirit of PATA. This could help create guardrails that would exclude terrorist participation in the May elections — and ultimately help the Palestinians return to a path of political participation without risking a rupture with the United States, not to mention another bitter internal struggle for control.

Jonathan Schanzer, a former terrorism finance analyst at the U.S. Department of the Treasury, is senior vice president at Foundation for Defense of Democracies (@FDD), where Matthew Zweig, a former congressional staffer and State Department official, is a senior fellow.