We Say:The fact is that to the extent that a real estate market exists in East Jerusalem, it exists to facilitate the transfer of property from Palestinians to Israelis. With respect to purchasing property, any Israeli – and, in fact, any Jew from anywhere in the world – can legally buy property in Jerusalem, including East Jerusalem. And as it happens, entire organizations, backed by massive and entirely non-transparent private foreign funding (kept secret through the active protection of Israeli courts) exist for the purpose of making such purchases. They do so with a publicly-stated political agenda of working to push out the Palestinians, establish Jewish hegemony in these areas, and thereby make impossible a two-state peace agreement and undermine any Palestinians claims in the city. And they do so with the active and tacit support of Israeli municipal and governmental authorities.

On the other hand, the Palestinian side of the real estate market – the potential buyers – is artificially limited. Palestinians who do not have legal residency in Jerusalem (i.e., Palestinian residents of the West Bank and Gaza, Palestinians living abroad – including Palestinians who might have been born in or have parents born in East or West Jerusalem) are barred from living in the city. Palestinian West Bankers cannot, for all intents and purposes, purchase land in Jerusalem, and they are entirely prohibited from doing so on State controlled lands (which accounts for most of the city). Those who do own land in the Jerusalem may not access it freely, since as non-residents they have no legal right to enter or stay in the city without a special permit from Israel.

Palestinians who do have legal residency in East Jerusalem are a marginalized, underserved collective of around 350,000 people. While these Palestinians technically have the right to purchase property anywhere in the city, in reality there are very few instances of Palestinians purchasing property in Jewish West Jerusalem – reflecting both the fact that their lives and communities are in the Palestinian part of the city, and the fact that Israelis do not want to sell to them. Underscoring this fact is the case Nof Zion, a settlement project in Jabel Mukabber. When that project was failing financially (for lack of Israeli buyers), a wealthy Palestinian sought to purchase the development from the creditor, offering a price higher than any Israeli bidder. His effort was thwarted by an organized and very public campaign to block the sale for the declared purpose of keeping the property in Jewish Israeli hands. The property was subsequently sold to a Jewish Israeli businessman and is now a large Jewish-populated settlement. And even in this example, small symbols can sometimes disclose large truths: in Jabel Mukabber, sidewalks line the road only in the area bordering the settlement; when the road enters the built-up Palestinian areas, the sidewalks disappear.

We Say:First, there is the issue of property transactions in East Jerusalem. Palestinians in East Jerusalem face obstacles and dangers if they want to buy or sell property to each other, especially in settler-targeted areas. Palestinians have learned over the years that merely seeking to register property transactions can bring on scrutiny by Israel’s Interior Ministry, toward the goal of taking away property or residency rights.

Selling to Israelis/Jews, on the other hand, is both easy and facilitated by the Israeli government. This facilitation includes not just the transaction itself but cooperation by the government agencies and officials who often work hand-in-hand with settlers to help them find and target "vulnerable" properties – e.g., properties where owners can be threatened with the choice of either selling to settlers or having the property taken or demolished on various grounds (absentee, illegal construction, etc). This cooperation extends further to providing forces to secure settlers taking over and moving into properties, providing compensatory arrangements to sweeten the deal for Palestinians who sell (such as permits to building elsewhere or travel permits), and paying for permanent security to enable settlers to live safely within these areas.

In addition, the deliberate failure of Israeli authorities over the past 49 years to grant building permits to Palestinians, and more broadly the Israeli government’s unwillingness to provide proper planning and development opportunities within the Palestinian sector, distorts the real estate "market" in East Jerusalem in a manner geared to incentivize the transfer of property from Palestinians to Israelis/Jews. The value of property is linked to the ability of the owner or purchaser to develop and use it. But Palestinians in East Jerusalem can rarely get permits from Israeli authorities to build – especially in areas targeted by settlers. This includes withholding of permits needed for renovations, expansion of existing properties, and construction of new homes, not to mention new residential projects. As a result, the value of property on the (virtually non-existent) Palestinian market is artificially capped, even assuming a transaction between Palestinians was possible. And when Palestinians build (or expand, or do maintenance) without permits, they face a very real threat of fines and demolitions, particularly if they do so in areas coveted by the settlers.

On the other hand, once a property is in the hands of the settlers, the Jerusalem Municipality and state agencies provide active support in that property’s development, treating the settlers as partners in a government-endorsed project of establishing and expanding the Jewish presence in the targeted area. Settlers generally have no issues getting permits to renovate, expand, develop (as seen in the various settler developments in these areas, including Shepherds Hotel, Nof Tzion, Ras al Amud, etc). And when settlers build without permits, Israeli authorities find excuses to avoid taking action against them. The most glaring example of this phenomenon is “Beit Yonatan”– a seven-story settler structure built illegally in Silwan in 2002, against which Israeli authorities have failed to take meaningful action for more than a decade, despite the Supreme Court having ruled that the settlers must vacate and that Israeli authorities must seal the illegal building. Jerusalem Mayor Nir Barkat has refused to honor that verdict, flouting binding instructions from Israel's Attorney General and going so far as to fire a Municipal Legal Adviser who insisted he respect the rule of law.

We Say:The Jewish attachment and claim to the Temple Mount goes to the core of Jewish history, identity, and religious belief. The fact that at present Jews are not permitted to pray at the site is a source of pain to some and bafflement to others. However, the fact of the matter is that successive Israeli governments since 1967 have decided that, for the sake of Israel’s own vital national security, Israel must maintain the status quo at the site, according to which the Temple Mount (which Muslims call the Noble Sanctuary – Haram al Sharif) remains a site of worship for Muslims alone, and a site that non-Muslims may visit. This position has long been supported by most mainstream Orthodox Jewish authorities, who for more than 1000 years have held, based on ancient Jewish law, that Jews may not ascend the Temple Mount. It has also long enjoyed the support of the political, security, and religious mainstreams of Israel, who recognize that tinkering with the status quo would have grave security repercussions for Israel.This view is bolstered by decades of experience wherein Israeli actions in and around the Temple Mount have led to bloodshed.

Those who today are agitating for a change in the Temple Mount status quo disregard both the religious and national security arguments against such a change. Some may do so out of devout religious motivations. However, others do so – openly and proudly – for the sake of clear political agenda of challenging Muslim claims to the site, replacing Muslim control (gradually or immediately) with Jewish hegemony, and undermining any two-state peace agreement. In fact, some of them openly seek and welcome the possibility of a zero-sum religious war over the site.

In the future, in the context of an Israeli-Palestinian peace agreement and the normalization of Israel’s relations with the Muslim world, it is possible that there may be an opportunity to adopt a new, mutually agreed-on status quo that could include Jewish prayer at the site. Until then, efforts to unilaterally impose a new status quo are dangerous – fueling Muslim fears about Israeli intentions at the site. Such fears are fueled by public statements by Israeli Temple Mount activists, including Members of the Knesset and government officials, who regularly proclaim their desire (and plans) to replace the al Aqsa Mosque and the Dome of the Rock with a newly-built Third Temple.

We Say:  Legislation (seen thus far) seeking to shame, punish and bar BDS through various avenues runs afoul of constitutionally-protected rights and constitutional doctrine and practice in one or more of the following ways:

• Free Speech: The U.S. Constitution (Amendment I and Amendment XIV) bars Congress or any state from “abridging the freedom of speech.” The Supreme Court (most notably in NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982) ruled clearly that economic boycott is protected free speech.

• Unconstitutional-conditions: According to the unconstitutional-conditions doctrine, as articulated clearly by the Supreme Court (in Perry v. Sindermann 408 U.S. 593 (1972):

 “For at least a quarter-century, this Court has made clear that, even though a person has no ‘right’ to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Such interference with constitutional rights is impermissible.” [emphasis added]

• Vagueness: The “void for vagueness” or “overbroad” doctrine holds that a law is unenforceable if its terms are so vague or overbroad that the average citizen could not be certain what conduct is or is not permitted. The EO clearly falls into this category, with language that is prima facie vague and overbroad (e.g., “any activity,” “promote others,” “coercing political action,” “affected state entities”).

• Chilling Effect: Chilling effect is defined as follows: “In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.” As articulated by Justice Brennan in his dissent on Walker v. City of Birmingham 388 U.S. 307 (1967):

“We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the ‘chilling effect’ upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”