Legislative Round-Up - June 27, 2018

Produced by the Foundation for Middle East Peace in cooperation with Americans for Peace Now, where the Legislative Round-Up was conceived

Note: There will be no Round-Up this Friday. This special mid-week edition is devoted to a detailed analysis of the Senate version of the FY19 ForOps bill, S. 3108, introduced 6/21 by Graham (R-SC). Committee report is here. Full Middle East-related details in both are included below.

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TITLE I — DEPARTMENT OF STATE AND RELATED AGENCY

 

Broadcasting Board of Governors, international broadcasting operations: The bill provides $804,486,000 “to carry out international communication activities, and to make and supervise grants for radio and television broadcasting to the Middle East,” along with perennial conditions.

 

Center for Middle Eastern-Western Dialogue Trust Fund: Perennial provision stating: “For necessary expenses of the Center for Middle Eastern-Western Dialogue Trust Fund, as authorized by section 633 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2004 (22 U.S.C. 2078), the total amount of the interest and earnings accruing to such Fund on or before September 30, 2019, to remain available until expended.”

 

Israeli Arab Scholarship Program: Perennial provision stating: “For necessary expenses of the Israeli Arab Scholarship Program, as authorized by section 214 of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (22 U.S.C. 2452 note), all interest and earnings accruing to the Israeli Arab Scholarship Fund on or before September 30, 2018, to remain available until expended.

 

The report accompanying the bill notes: “J. Christopher Stevens Virtual Exchange Program.—The Committee recommends $5,000,000 for the J. Christopher Stevens Virtual Exchange program, which shall be made available on a cost- matching basis, to the maximum extent practicable.”

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TITLE III — BILATERAL ECONOMIC ASSISTANCE

 

Economic Support Funds – ESF (Total ESF: $2,853,925,000)

Details for ESF for Middle East countries are laid out in section 7041 of the bill, discussed below. The funding table contained in report accompanying the bill lays out ESF for the Near East as follows:

Egypt: $75,000,000

Iraq: $150,00,000

Jordan: $1,082,400,000

Lebanon: $110,000,000

Libya: $30,000,000

Morocco: $20,000,000

Syria: $161,000,000

Tunisia: $79,000,000

West Bank and Gaza: $225,00,000

Yemen: $16,500,000

Middle East Multilaterals: $875,000

Middle East Partnership Initiative: $50,000,000 (of which $20,000,000 is for scholarships)

Middle East Regional Cooperation: $5,000,000

Near East Regional Democracy: $52,000,000

Trans-Saharan Counterterrorism Partnership: $3,000,000

USAID Middle East Regional: $11,950,000

Section 7041(j)(3) Private Sector Partnership Programs: $50,000,000

Section 7060(g0 Reconciliation Programs: $13,000,000

Subtotal, Near East: $2,134,725

 

Migration & Refugee Assistance – MRA

The bill stipulates that, “$5,000,000 shall be made available for refugees resettling in Israel.” The report notes that, “The Committee recommends $5,000,000 for refugee resettlement in Israel under the MRA heading, to be awarded through an open and competitive process.”

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TITLE IV – INTERNATIONAL SECURITY ASSISTANCE

 

Nonproliferation, Anti-Terrorism, Demining & Related Programs – NADR

This section includes a perennial stipulation that “…funds appropriated under this heading may be made available for the IAEA unless the Secretary of State determines that Israel is being denied its right to participate in the activities of that Agency.”

 

Peacekeeping Operations – PKO

The bill stipulates that, “…not less than $31,000,000 shall be made available for a United States contribution to the Multinational Force and Observers mission in the Sinai.” The accompanying report notes: “Funds made available by the act above the level of the U.S. contribution are intended to address ongoing force protection requirements and emerging needs to protect and sustain the Multinational Force and Observers mission in the Sinai. Force protection may include the use of ground and air transportation, as required by security conditions, to conduct verification missions.”

 

Foreign Military Financing – FMF

The funding table contained in report accompanying the bill lays out FMF for the Near East as follows:

Bahrain: $5,000,000

Egypt: $1,000,000,000

Iraq: $250,00,000

Israel: $3,300,000

Jordan: $425,000,000

Lebanon: $105,000,000

Morocco: $5,000,000

Oman: $2,000,000

Tunisia: $65,000,000

Subtotal, Near East: $5,157,000,000

 

See Section 7041, below, for details of FMF provisions for all countries except Israel.

 

Israel: The bill stipulates that, “not less than $3,300,000,000 shall be available for grants only for Israel, which shall be disbursed within 30 days of enactment of this Act.” The text also stipulates, as is always the case, that, “…to the extent that the Government of Israel requests that funds be used for such purposes, grants made available for Israel under this heading shall, as agreed by the United States and Israel, be available for advanced weapons systems, of which not less than $815,300,000 shall be available for the procurement in Israel of defense articles and defense services, including research and development.

 

NOTE: As highlighted previously in the Round-Up, these little-remarked stipulations – early disbursal and permission for (not less than) almost $1 billion of FMF to be spent inside Israel – are unique to Israel’s aid program. Both significantly increase the value of the assistance to Israel – and the cost of the assistance to the U.S. In all other cases, FMF is obligated and disbursed by the U.S. on an as-used basis, meaning that the U.S. either keeps the money in the U.S. Treasury until it is needed (where it earns interest) or if the money is not in the U.S. Treasury, the U.S. does not have to borrow it until it is needed (meaning less interest paid). In the case of Israel, the entire $3.1 billion is handed over in a lump sum within 30 days of the law passing, meaning that Israel can bank the money and earn interest on it (which it can spend however it likes). In addition, in all other cases, FMF must be spent inside the U.S. (unless a specific exemption is granted). The logic behind this is that FMF is not just a “gift” to a foreign country but is actually a form of investment in the U.S. economy. In Israel’s case, however, almost $1 billion of FMF may be used in Israel or other countries, rather than for the benefit of U.S. industry.

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TITLE VII – GENERAL PROVISIONS

 

Sec. 7007: Prohibition against direct funding for certain countries

This is perennial bill language banning aid to Cuba, North Korea, Iran, and Syria, extending to loans, credits, insurance, and guarantees of the Export-Import Bank or its agents.

 

Sec. 7008: Coups d’état

This is the section of law (that caused such a headache over Egypt funding after the removal of the Morsi government) barring funding for any government whose duly elected government is deposed by a military coup d’état or decree in which the military plays a decisive role. It permits assistance to be resumed if the Secretary of State certifies that a democratically elected government has since taken office, and exempts from the ban funding “to promote democratic elections or public participation in democratic processes.”

 

Sec. 7013: Prohibition on taxation of assistance

This is a perennial provision barring taxation of U.S. assistance. While this provision appears generic, the only recipient explicitly identified is the West Bank and Gaza. This reflects the genesis of the provision – the allegation in a previous year that the Palestinian Authority (PA) was taxing U.S. assistance provided to NGOs (and recall that under existing law direct aid to the PA is prohibited), thereby indirectly benefiting from US assistance designed specifically to bypass the PA.

 

Sec. 7015: Notification Requirements

Part (f) of this section states that no funds appropriated under titles III through VI of this Act (pretty much all funds in the bill) may be obligated or expended for assistance to a laundry list of countries, “except as provided through regular notification procedures of the Committees on Appropriations.” From the Middle East the list includes (this year): Bahrain, Egypt, Iran, Iraq, Lebanon, Libya, Syria and Yemen.

 

Sec. 7021: Prohibition on assistance to governments supporting international terrorism

This provision prohibits the export of lethal military equipment to any foreign government “which provides lethal military equipment to a country the government of which the Secretary of State has determined supports international terrorism…” and prohibits bilateral assistance to any country supports international terrorism, gives sanctuary to terrorist, or is controlled by a terrorist organization. The section includes national security waivers for both restrictions.

 

Sec. 7031: Financial Management & Budget Transparency

Part (a) of this provision stipulates that, “funds appropriated by this Act may be made available for direct government-to-government assistance only if” a number of conditions are satisfied. Condition (E) reads as follows: “the recipient government is taking steps to protect the rights of civil society, including freedoms of expression, association, and assembly.”

 

Sec. 7033: International Religious Freedom

Part (a) makes funds available for (among other things) the Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia. Part (b)(4) earmarks not less than $5 million “to support transitional justice, reconciliation, and reintegration programs for vulnerable and persecuted religious minorities, including in the Middle East and North Africa regions: Provided, That such funds shall be matched, to the maximum extent practicable, from sources other than the United States Government.”

 

Sec. 7034: Special Provisions

Part (o)(1), entitled “Loan Guarantees” stipulates that, “Funds appropriated under the headings “Economic Support Fund” and “Assistance for Europe, Eurasia and Central Asia” by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs may be made available for the costs…of loan guarantees for Jordan, Tunisia, and Ukraine, which are authorized to be provided.”

 

Part (r)(4) stipulates that, “For purposes of funds appropriated by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs that are made available for assistance for Afghanistan, Iraq, Libya, Syria, and Yemen, the term ‘humanitarian assistance’ includes creating conditions where locally legitimate authorities and systems can peaceably manage conflict and prevent violence.”

 

Sec. 7035: Arab league boycott of Israel

Perennial Sense of Congress opposing the Arab League boycott of Israel, and the secondary boycott of American firms that have commercial ties with Israel.

 

Sec. 7036: Palestinian statehood

Perennial provision barring assistance to a Palestinian state that does not meet a series of conditions (includes Presidential waiver authority).

 

Sec. 7037: Restrictions concerning the Palestinian Authority

Perennial bill language barring U.S. funds for establishing any diplomatic mission to the Palestinians in Jerusalem.

 

Sec. 7038: Prohibition on assistance to the Palestinian Broadcasting Corporation

Perennial bill language barring any U.S. assistance to the PBC.

 

Sec. 7039: Assistance for the West Bank and Gaza

Perennial section laying out far-reaching restrictions and conditions, as well as vetting, oversight and audit requirements, for U.S. assistance programs (carried out through non-governmental organizations) in the West Bank and Gaza.

 

Sec. 7040: Limitation on Assistance for the Palestinian Authority

Perennial bill language. Parts (a)-(e) ban U.S. assistance to the Palestinian Authority, provide Presidential waiver authority over this ban, and lay out conditions.

 

Part (f) is a perennial subsection entitled “Prohibition to Hamas and the Palestine Liberation Organization” (in effect lumping together a U.S.-designated Foreign Terrorist Organization, with the internationally recognized representative of the Palestinian people and NOT on the list of U.S.-designated FTO since that list was first published in 1997). This subsection bars funding to the PLO and for salaries of PA personnel in Gaza or for Hamas or any entity “effectively controlled by Hamas, any power-sharing government of which Hamas is a member, or that results from an agreement with Hamas and over which Hamas exercises undue influence.” This formulation is designed to make it difficult for the U.S. engage any kind of Palestinian power-sharing government that results from a future Fatah-Hamas reconciliation, or some other arrangements that lead to a national unity government or a mutually-agreed technocratic government.

 

Finally, the section includes language of past bills stipulating that the prohibition does not apply if the President “certifies and reports to the Committees on Appropriations that such government, including all of its ministers or such equivalent, has publicly accepted and is complying with the principles contained in section 620K(b)(1) (A) and (B) of the Foreign Assistance Act of 1961, as amended.” It also includes the proviso that, “the President may exercise the authority in section 620K(e) of the Foreign Assistance Act of 1961, as added by the Palestine Anti-Terrorism Act of 2006 (Public Law 109-446) with respect to this subsection.”

 

For the sake of completeness, Section 620K(b)(1)(A) and (B) of the Foreign Assistance Act of 1961, as amended, reads as follows:

(b) Certification.–A certification described in subsection (a) is a certification transmitted by the President to Congress that contains a determination of the President that–

(1) no ministry, agency, or instrumentality of the Palestinian Authority is effectively controlled by Hamas, unless the Hamas-controlled Palestinian Authority has–

(A) publicly acknowledged the Jewish state of Israel’s right to exist; and

(B) committed itself and is adhering to all previous agreements and understandings with the United States Government, with the Government of Israel, and with the international community, including agreements and understandings pursuant to the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (commonly referred to as the `Roadmap’).

 

And 620K(e) reads as follows:

(e) National Security Waiver.–

(1) In general.–Subject to paragraph (2), the President may waive subsection (a) with respect to-

(A) the administrative and personal security costs of the Office of the President of the Palestinian Authority;

(B) the activities of the President of the Palestinian Authority to fulfill his or her duties as President, including to maintain control of the management and security of border crossings, to foster the Middle East peace process, and to promote democracy and the rule of law; and

(C) assistance for the judiciary branch of the Palestinian Authority and other entities.

(2) Certification.–The President may only exercise the waiver authority under paragraph (1) after–

(A) consulting with, and submitting a written policy justification to, the appropriate congressional committees; and

(B) certifying to the appropriate congressional committees that–

(i) it is in the national security interest of the United States to provide assistance otherwise prohibited under subsection (a); and

(ii) the individual or entity for which assistance is proposed to be provided is not a member of, or effectively controlled by (as the case may be), Hamas or any other foreign terrorist organization.

(3) Report.—Not later than 10 days after exercising the waiver authority under paragraph (1), the President shall submit to the appropriate congressional committees a report describing how the funds provided pursuant to such waiver will be spent and detailing the accounting procedures that are in place to ensure proper oversight and accountability.

(4) Treatment of certification as notification of program change.–For purposes of this subsection, the certification required under paragraph (2)(B) shall be deemed to be a notification under section 634A and shall be considered in accordance with the procedures applicable to notifications submitted pursuant to that section.

 

Sec. 7041: Middle East and North Africa

 

Bahrain and Saudi Arabia

Sec. 7041 includes no stipulations regarding funding for Bahrain (which is provided for in the bill under various categories). The report accompanying the bill does stipulate that, “The Secretary of State shall update the report required under the FMF heading in Senate Report 114–79 in the manner described, and work with the Government of Bahrain on implementation of reforms that provide greater rights and opportunities for the people of Bahrain” and notes (weakly), “The Committee remains concerned that restrictions on peaceful dissent and free expression in Bahrain may have the unintended consequence of increasing instability in that country [suggesting that such restrictions are not, in and of themselves, a sufficient concern to warrant Committee interest; the fact that they might be bad for the Bahraini regime, however – that’s a concern).”

 

There is nothing in the bill text or the report about Saudi Arabia. This is in contrast to last year, when the report noted: “The Committee is concerned with human rights in Saudi Arabia, including the imprisonment of blogger Raif Badawi and his lawyer Waleed Abu al-Khair.” It is worth noting that both men are still imprisoned.

 

Sec. 7041(a). Egypt

The funding table contained in the report accompanying the breaks down funding for Egypt as follows: ESF – $75,000,000 (of which $15,000,000 is earmarked for scholarships); INCLE – $2,000,000; NADR – $3,000,000; IMET – $1,800,000; FMF: $1,000,000,000; TOTAL: $1,081,800,000

 

Overall conditions on aid: This section states funds appropriated by this Act that are available for assistance for Egypt “may be made available notwithstanding any other provision of law restricting assistance for Egypt, except for section 620M of the Foreign Assistance Act of 1961, and may only be made available for assistance for the Government of Egypt if the Secretary of State certifies and reports to the Committees on Appropriations that such government is—(A) sustaining the strategic relationship with the United States; and (B) meeting its obligations under the 1979 Egypt-Israel Peace Treaty.”

 

For the sake of completeness: Section 620M of the Foreign Assistance Act of 1961 (referenced above) states that “No assistance shall be furnished under this Act or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.” It adds that this prohibition “shall not apply if the Secretary determines and reports to the Committee on Foreign Relations of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committees on Appropriations that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.” Given certain events in Egypt in recent months (perhaps most glaringly the torture/murder of an Italian graduate student), inclusion of this reference is important.

 

ESF: The bill stipulates that “up to $75,000,000 may be made available for assistance for Egypt, of which not less than $35,000,000 should be made available for higher education programs including not less than $10,000,000 for scholarships for Egyptian students with high financial need to attend not-for-profit institutions of higher education: Provided, That such funds may be made available for democracy programs and for development programs in the Sinai: Provided further, That such funds may not be made available for cash transfer assistance or budget support unless the Secretary of State certifies and reports to the appropriate congressional committees that the Government of Egypt is taking consistent and effective steps to stabilize the economy and implement market-based economic reforms.”

 

The section also stipulates that, “The Secretary of State shall withhold from obligation funds appropriated by this Act under the heading “Economic Support Fund” for assistance for Egypt, an amount of such funds that the Secretary determines to be equivalent to that expended by the United States Government for bail, and by nongovernmental organizations for legal and court fees, associated with democracy-related trials in Egypt until the Secretary certifies and reports to the Committees on Appropriations that the Government of Egypt has dismissed the convictions issued by the Cairo Criminal Court on June 4, 2013, in ‘Public Prosecution Case No. 1110 for the Year 2012’ and has not subjected the defendants to further prosecution or if convicted they have been granted full pardons.”

 

This section further stipulates that, “None of the funds appropriated by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs under the heading ‘Economic Support Fund’ may be made available for a contribution, voluntary or otherwise, to the ‘Civil Associations and Foundations Support Fund’, or any similar fund, established pursuant to Law 70 on Associations and Other Foundations Working in the Field of Civil Work published in the Official Gazette of Egypt on May 29, 2017.”

 

FMF: The bill allocates up to $1,000,000,000 in FMF for assistance for Egypt, to remain available until September 30, 2019, and stipulates that these funds may be transferred to the interest bearing account. It stipulates that $300,000,000 shall be withheld until the Secretary of State certifies and reports to the Committees on Appropriations that the Government of Egypt is taking effective steps, which are in addition to steps taken the previous year, related to advancing democracy, human rights, etc.

 

The section further stipulates that the certification requirement does not apply to funds appropriated for counterterrorism, border security, and non-proliferation programs. It also gives the for Secretary of State authority to waive the certification requirement (which in any case applies only $300,000,000 of the total $1 billion in aid), “if the Secretary determines and reports to the Committees on Appropriations that to do so is important to the national security interest of the United States, and submits a report to such Committees containing a detailed justification for the use of such waiver and the reasons why any of the requirements of subparagraph (A) cannot be met.”

 

Finally, this section requires the Secretary of State to “take all practicable steps to ensure that mechanisms are in place for monitoring, oversight, and control of funds made available by this subsection for assistance for Egypt.”

 

In addition, the report accompanying the bill details the Committee’s intentions for funding for Egyptian students. It also requires a report “detailing the amount of funds appropriated in prior acts making appropriations for the Department of State, foreign operations, and related programs that are made available for development programs in the Sinai. The report shall include an assess-

ment of the Government of Egypt’s support for such programs. The Committee believes that security and stability are unattainable in the Sinai absent the implementation of a coherent development strategy.” It also notes that in making the required certification (stipulated in the bill text), “the Secretary of State shall consider the cases of American citizen Mustafa Kassem and Ola Al-Qaradawi and her husband Hosam Khalaf. The Committee urges that humane treatment and fair

trials be afforded these and other prisoners.”

 

Finally, elsewhere in the Report, the Committee notes: “The Committee notes that the Department of State has yet to implement a recommendation contained in the April 2016 GAO report entitled ‘‘Security Assistance: U.S. Government Should Strengthen End-Use Monitoring and Human Rights Vetting for Egypt’’ (GAO–16–435). Not later than 45 days after the initial obligation of funds appropriated under this heading, the Secretary of State shall consult with the Committee on the implementation of such recommendation.

 

Sec. 7041(b) Iran

This section states that funding in the bill (under Diplomatic and Consular Programs, ESF, and NADR) shall be used by the Secretary of State to: “(A) support the United States policy to prevent Iran from achieving the capability to produce or otherwise obtain a nuclear weapon; (B) to support an expeditious response to any violation of United Nations Security Council Resolutions or other efforts that advance Iran’s nuclear program; (C) to support the implementation and enforcement of sanctions against Iran for support of nuclear weapons development, terrorism, human rights abuses, and ballistic missile and weapons proliferation; and (D) for democracy programs for Iran…

 

This section also states the terms and conditions of 7041(c)(2) in division I of PL 112-74 shall remain in effect during FY18. This is:

 

(2) None of the funds appropriated or otherwise made available in this Act under the heading “Export-Import Bank of the United States” may be used by the Export-Import Bank of the United States to provide any new financing (including loans, guarantees, other credits, insurance, and reinsurance) to any person that is subject to sanctions under paragraph (2) or (3) of section 5(a) of the Iran Sanctions Act of 1996 (Public Law 104-172).

 

Finally, this section requires the Secretary of State to submit to Congress the semi-annual report required by section 135 of the Atomic Energy Act of 1954 (42 U.S.C. 2160e(d)(4)), as added by section 2 of the Iran Nuclear Agreement Review Act of 2015 (Public Law 114–17; 129 Stat. 201).

 

The report accompanying the bill further stipulates: “Not later than 180 days after the enactment of the act, the Secretary of State shall update the report required under this heading in Senate Report 114–79 regarding steps taken to implement section 415 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (Public Law 112–158).

 

The report also instructs the Secretary of State, in consultation with the heads of other relevant Federal agencies, including BBG, to “coordinate Iran counterinfluence programs funded by the act. Such programs should: (1) counter the false assertions made by the Government of Iran against the United States and other democratic countries; (2) describe the support such Government provides to terrorist proxies; and (3) assess and describe the impact the support to such proxies causes to the people of Syria, Yemen, and other areas where they operate.”

 

Sec. 7041 (c) Iraq

The funding table in the report accompanying the bill breaks down funding for Jordan as follows: ESF – $150,000,000; INCLE – $3,000,000; NADR – $25,425,000; IMET – $1,000,000; FMF – $250,000,000. TOTAL – $429,425,000

 

The bill text notes that funds for Iraq in this Act shall be made available for: “(1) bilateral economic assistance and inter-national security assistance, including for the Marla Ruzicka Iraqi War Victims Fund; (2) stabilization assistance at not less than the amounts specified for such purpose in the table under this subsection in the report accompanying this Act; (3) humanitarian assistance, including in the Kurdistan Region of Iraq; and (4) programs to protect and assist religious and ethnic minority populations in Iraq.

 

The report includes extensive directions from the Committee regarding funding for Kurdistan.

 

  1. 7041 (d) Jordan

The funding table in the report accompanying the bill breaks down funding for Jordan as follows: ESF – $1,082,400,000; NADR – $13,600,000; IMET – $4,000,000; FMF – $425,000,000. TOTAL: $1,525,000,000

 

This bill text stipulates that: “Of the funds appropriated by this Act under titles III and IV, not less than $1,525,000,000 shall be made available for assistance for Jordan, of which: not less than $1,082,400,000 shall be made available under the heading ‘Economic Support Fund’, of which not less than $745,100,000 shall be made available for budget support for the Government of Jordan; and not less than $425,000,000 shall be made available under the heading ‘Foreign Military Financing Program’.

 

The report notes that, “The Committee recommends not less than $1,525,000,000 for assistance for Jordan. Additional assistance is available under the IDA and MRA headings to address the needs of refugees in Jordan from neighboring countries, including for communities hosting such refugees. Section 7034(o) of the act includes authority for loan guarantees for Jordan.”

 

Sec. 7041 (e) Lebanon

The funding table in the report accompanying the bill breaks down funding for Lebanon as follows: ESF – $110,000,000; INCLE – $10,000,000; NADR – $5,760,000; IMET – $2,750,000; and FMF – $105,000,000. TOTAL: $233,510,000

 

The bill text includes the usual bans on funding for the Lebanese Internal Security Forces (ISF) or the Lebanese Armed Forces (LAF) if the ISF or the LAF is controlled by a foreign terrorist organization. It also stipulates that INCLE and FMF funding “may be made available for programs and equipment for the ISF and the LAF to address security and stability requirements in Lebanon, including in areas affected by the conflict in Syria, following consultation with the appropriate congressional committees.” It also lays out other stipulations related to ESF and FMF. The Report accompanying the bill further lays out details of the Committee’s intent.

 

Sec. 7041 (f) Libya

The funding table in the report accompanying the bill breaks down funding for Libya as follows: ESF – $30,000,000; INCLE – $2,000,000; NADR – $6,500,000. TOTAL: $38,500,000

 

Both the bill text and the report earmark the $30 million for stabilization assistance, including border security. The bill stipulates that all funding for Libya is contingent on the Secretary of State certifying that the government of Libya is “cooperating with United States Government efforts to investigate and bring to justice those responsible for the attack on United States personnel and facilities in Benghazi, Libya in September 2012.

 

Sec. 7041 (g) Morocco

The funding table in the report accompanying the bill breaks down funding for Morocco as follows: ESF – $20,000,000; INCLE – $5,000,000; NADR – $1,500,000; IMET – $2,000,000; and FMF – $5,000,000. TOTAL: $33,500,000

This bill text stipulates that “Funds appropriated by this Act under the heading “Foreign Military Financing Program” that are available for assistance for Morocco may only be used for the purposes requested in the Congressional Budget Justification, Foreign Operations, Fiscal Year 2017. The report stipulates that, “The Secretary of State shall update the report required under the FMF heading in Senate Report 114–79.”

Sec. 7041 (h) Syria

The funding table in the report accompanying the bill breaks down funding Syria as follows: ESF – $161,000,000 (of which $150,000,000 is earmarked for stabilization assistance); NADR – $45,000,000. TOTAL: $206,000,000

 

The bill text states that “None of the funds appropriated by this Act for assistance for Syria may be made available for a project or activity that supports or otherwise legitimizes the Government of Iran, foreign terrorist organizations (as designated pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189)), or a proxy of Iran in Syria.” The report accompanying the bill notes: “Funds appropriated by the act that are made available for assistance for Syria shall be made available for programs to build the capacity of Syrian civil society, including through core support, to address the immediate and long-term needs of the Syrian people in Syria.”

 

Sec. 7041 (i) Tunisia

The funding table in the report accompanying the bill breaks down funding for Tunisia as follows: ESF – $79,000,000; INCLE – $13,000,000; NADR – $6,100,000; IMET – $2,300,000; FMF – $65,000,000. TOTAL: $165,400,000

 

The report notes: “Section 7034(o) of the act includes authority for loan guarantees for Tunisia. Funds appropriated by the act for democracy assistance for Tunisia shall be made available to support implementation of Organic Law No. 2017–58 of August 11, 2017 on the Elimination of Violence Against Women. Not later than 45 days after enactment of the act, the Secretary of State shall submit a report to the appropriate congressional committees assessing the content of the proposed NGO law for Tunisia and its implications on the ability of USAID and the Department of State to support Tunisian civil society organizations.”

 

Sec. 7041 (k) West Bank and Gaza

The funding table in the report accompanying the bill lays out FY17 funding for the West Bank and Gaza as follows: ESF – $225,000,000; INCLE – $60,000,000; and NADR – $1,000,000. TOTAL: $286,000,000

 

General: Part 1 of this section is a perennial requirement that prior to the obligation of any funds for the West Bank and Gaza, the Secretary of State shall report to Congress that the purpose of such assistance is to: “(A) advance Middle East peace; (B) improve security in the region; (C) continue support for transparent and accountable government institutions; (D) promote a private sector economy; or (E) address urgent humanitarian needs.”

 

Palestinians at the UN & ICC: Part 2 lays out further limitations on U.S. funding for the Palestinian Authority (in addition to the limitations in other provisions). Part 2(A) bars any funding for the PA if “the Palestinians obtain the same standing as member states or full membership as a state in the United Nations or any specialized agency thereof outside an agreement negotiated between Israel and the Palestinians” or if “the Palestinians initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” This section provides the Secretary of State the authority to waive the ban on assistance to the PA in the case where the Palestinians gain status at the UN if he “certifies to the Committees on Appropriations that to do so is in the national security interest of the United States, and submits a report to such Committees detailing how the waiver and the continuation of assistance would assist in furthering Middle East peace.” No waiver is provided if the Palestinians go to the ICC.

 

***CHANGE**** Status of the PLO Office Out of the U.S.: Now this is interesting – in past years Congress had used this section to limit the President’s ability to waive longstanding (and entirely anachronistic) legislation barring the PLO from having any representation in the United States. Where for decades Congress granted the President a “clean” national security or national interests waiver of that prohibition (contained in section 1003 of Public Law 100-204), in recent years Congress moved to make such waiver contingent on the President certifying that the Palestinians have not been admitted to any more UN agencies or taken or supported cases against Israel at the ICC. This year’s Senate language restores the old approach, giving the President the authority to waive the ban for 6 months at a time, if he certifies that it is “important to the national interest of the United States or the conduct of diplomacy.” Given that President Trump failed to make the required certification in November 2017 but chose not to kick the PLO mission out of Washington (meaning, in effect, that he has ignored the law), it would appear that Senate appropriators are moving to adjust the law to match the President’s actions [it is not a stretch to suggest that had President Obama similarly ignored the law and Congressional will in this regard, the response of Congress would have been rather different].

 

The Report notes: “The Committee provides the waiver contained in the President’s budget request for section 1003 of Public Law 102–204 regarding the Palestine Liberation Organization office in the United States.”

 

***NEW FUNDING FOR PALESTINIANS***

This year’s Senate bill adds a new section under Palestinian funding – 7041(j)(3), “Private Sector Partnership Programs.” This section stipulates that not less than $50 million in ESF shall be made available (following consultation with Congress) for assistance for the West Bank and Gaza to: “(i) promote the integration of the Palestinian economy into the international business system through private sector engagement between Palestinian entrepreneurs and businesses and the private sector in the United States, Europe, and the Middle East; and (ii) support exchanges, cooperation, dialogue, shared community-building, and reconciliation between Palestinians and Israelis.” The section goes on to stipulate that the funds shall be administered by USAID through a Palestinian Partnership Fund, provided that USAID shall seek additional contributions to said fund from other international donors, including from the Middle East. It further stipulates that none of these funds may be made available for assistance to the PA, or for any individual or group that the US determines is involved in or advocating terrorism, or is a member of a foreign terrorist organization.

 

The report stipulates that in implementing this program, “not later than 90 days after enactment of the act the USAID Administrator shall submit a report to the appropriate congressional committees detailing the planned uses of such funds, including a description of activities, obligations, and expenditures. The report shall be updated every 120 days until all funds made available pursuant to the subsection have been expended.” The report also states that, “Funds made available by the act for such Partnership Programs and assistance for the West Bank shall be used, in addition to other purposes, to support joint Palestinian and Israeli businesses and to encourage commerce between Israeli and Palestinian businesses in the West Bank. Not later than 90 days after enactment of the act, the Secretary of State, in consultation with the USAID Administrator, shall submit a report to the Committee describing steps taken, or planned to be taken, in support of this effort.”

 

Part (5) of this section requires a report from the Secretary of State detailing previously appropriated assistance for the West Bank and Gaza, the amount withheld from disbursement, the reasons for its being withheld, and “the impact of such withholding on the welfare of the Palestinian people and the national interests of the United States, Israel, and Jordan.” It also requires the report to include, “a description of any policy review on assistance for the West Bank and Gaza undertaken by the Department of State, USAID, or any other Federal entity, including the date on which the review was initiated, the participants in the review, any consultations by such participants with foreign or nongovernmental entities, and the findings of the review, if concluded.”

 

The report accompanying the bill notes that, “Sections 7035, 7037, 7038, 7040, 7041(j), and 7048(c) of the act continue requirements on assistance for the West Bank and Gaza, in a manner similar to the prior fiscal year. The Committee retains sections 7013(b), 7036, and 7039 in the act, which were not included in the President’s budget request.” It also requires that, no more than 90 days after the Act becomes law, the Secretary of State update the incitement report required by section 7041(m)(5) of division K of Public Law 115–141; and no more than 180 days after it becomes law, that he submit a report to the Committee updating the report on the Palestinian security services required by section 2106 of chapter 2 of title II of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005 (Public Law 109–13).

 

It also notes that the Committee “does not include section 7041(m)(3) of division K of Public Law 115–141 regarding reductions of assistance made available under the ESF heading for the Palestinian Authority for payments of acts of terrorism, as the requirements of the Taylor Force Act (division S of Public Law 115–141) apply to funds appropriated by the act.”

 

Sec. 7041 (k) Western Sahara

This subsection stipulates that “Funds appropriated under title III of this Act may be made available for assistance for the people of Western Sahara provided, That not later than 90 days after enactment of this Act and prior to the obligation of such funds, the Secretary of State, in consultation with the USAID Administrator, shall consult with the Committees on Appropriations on the planned uses of such funds: Provided further, That nothing in this Act shall be construed to change the policy of the United States to support the United Nations-led process to monitor the ceasefire and bring about a peaceful, sustainable, and mutually agreed upon solution for the Western Sahara.” The report notes that, “No provision in the act shall be construed to change the policy of the United States to support the U.N.-led process to monitor the ceasefire and bring about a peaceful, sustainable, and mutually agreed upon solution for the Western Sahara.”

 

Sec. 7041 (l) Yemen

The funding table in the report accompanying the bill lays out FY17 funding for Yemen as follows: Global Health Programs (USAID) – $5,500,000; ESF – $16,500,000 (of which $15,000,00 is for stabilization assistance); INCLE – $300,000; NADR – $5,600,000 . TOTAL: $27,900,000

 

The bill text notes: “Of the funds appropriated by this Act under the heading ‘‘Economic Support Fund’’, not less than $15,000,000 shall be made available for stabilization assistance for Yemen.” The report adds: “The Committee encourages USAID to provide sufficient funds under the IDA heading to address urgent humanitarian requirements in Yemen. The Committee notes that 22 million people are in need of assistance and 8 million people are at risk of starvation. The Committee urges the administration to: (1) work with all parties involved in the conflict to respect their obligations under international humanitarian law and take all feasible precautions to protect civilians and civilian infrastructure from the impact of hostilities; and (2) take steps to ensure that vital humanitarian aid and commercial goods can continue to flow through the port of Hudaydah and other key entry points.”

 

Sec. 7046 (d) Turkey

This section requires the Secretary of State to identify senior officials in the Turkish government “whom the Secretary has credible information are knowingly responsible for the wrongful or unlawful prolonged detention of citizens or nationals of the United States currently held in Turkey” and provides that they not be issued visas to enter the United States, with the exception of when their entry would further important United States law enforcement objectives or is necessary to permit the United States to fulfill its obligations under the United Nations Headquarters Agreement.” It also requires the Secretary to report to Congress on Americans held under wrongful or unlawful prolonged detention in Turkey. The Report goes into greater detail: “Not later than 90 days after enactment of the act, the Secretary of State shall submit a report to the appropriate congressional committees assessing and describing: (1) the number of American citizens held under wrongful or unlawful prolonged detention in Turkey, and whether or not any such citizens have had official charges brought against them; (2) a list of senior officials of the Government of Turkey identified by the Secretary of State as responsible for the wrongful or unlawful prolonged detention of such citizens; and (3) all efforts, legal and diplomatic, taken by the Department of State to secure the release of each American wrongfully or unlawfully detained in Turkey.”

 

The bill text also bars any funding for the Turkish Presidential Protection Directorate (TPPD) unless the Secretary reports to Congress that all TPPD members named in the July 17, 2017 indictment (for violence in Washington, DC against protesters) and against whom charges are still pending have returned to the US to stand trial and have been brought to justice.

 

Finally, the bill states that no funds may be used “may be made available to transfer, or to facilitate the transfer of, F–35 aircraft to Turkey, including any defense articles or services related to such aircraft, until the Secretary of State certifies to the appropriate congressional committees that the Government of Turkey is not purchasing the S–400 missile defense system from Russia and will not accept the delivery of such system.” The Report goes on to state: “Not later than 30 days after enactment of the act, the Secretary of State shall submit a report to the appropriate congressional committees that includes: (1) a determination whether the Government of Turkey has made payments to Russia for the purchase of the S-400 missile defense system; (2) the number of such systems the Government of Turkey expects to purchase; (3) the anticipated delivery schedule for such system; (4) the dollar value of such systems the Government of Turkey is expected to purchase, and an analysis of the financing for the purchase (including self-financing or financing by loans from Russia or other sources); (5) a description of the measures the Secretary has taken to dissuade the Government of Turkey from purchasing such system, and a description of measures taken to encourage the purchase of an alternative system; and (6) an assessment of how the operation of the S–400 missile defense system and F–35 aircraft together would impact the security of the F–35 aircraft. The report required under this subsection shall be submitted in unclassified form but may contain a classified annex, as necessary.”

 

In addition to the issues raised in the bill text, the report requires that, “Not later than 180 days after enactment of the act, the Secretary of State shall submit a report to the appropriate congressional committees detailing efforts of the Department of State to support Turkish civil society and coordinate an international response to the targeting of individuals and organizations falsely accused by the Government of Turkey of supporting the failed 2016 coup d’etat.”

Sec. 7048: United Nations

Part (a) of this section deals with Transparency and Accountability at the UN.

 

Part (b) states prohibits funding for anything having to do with any agency, body, or commission associated with the UN presided over by a country that the Secretary of State has determined, according to U.S. law, has repeatedly provided support for acts of international terrorism. The section also permits the Secretary of State to waive this ban if it is in the national interest of the United States.

 

Part (c) requires a report, not later than 45 days after enactment of this Act, on whether UNRWA is:

“(1) utilizing Operations Support Officers in the West Bank, Gaza, and other fields of operation to inspect UNRWA installations and reporting any inappropriate use;

(2) acting promptly to address any staff or beneficiary violation of its own policies (including the policies on neutrality and impartiality of employees) and the legal requirements under section 301(c) of the Foreign Assistance Act of 1961;

(3) implementing procedures to maintain the neutrality of its facilities, including implementing a no-weapons policy, and conducting regular inspections of its installations, to ensure they are only used for humanitarian or other appropriate purposes;

(4) taking necessary and appropriate measures to ensure it is operating in compliance with the conditions of section 301(c) of the Foreign Assistance Act of 1961 and continuing regular reporting to the Department of State on actions it has taken to ensure conformance with such conditions;

(5) taking steps to ensure the content of all educational materials currently taught in UNRWA-administered schools and summer camps is consistent with the values of human rights, dignity, and tolerance and does not induce incitement;

(6) not engaging in operations with financial institutions or related entities in violation of relevant United States law, and is taking steps to improve the financial transparency of the organization; and

(7) in compliance with the United Nations Board of Auditors’ biennial audit requirements and is implementing in a timely fashion the Board’s recommendations.”

 

Part (e) requires reporting to Congress on any U.S. contributions to international organizations that are withheld due to any provision of law [for example, U.S. funding to UNESCO, barred because UNESCO admitted the Palestinians as full members].

 

Part (h) - which first showed up in the previous ForOps cycle - is entitled “National Security Interest Withholding.” It requires the Secretary of State to “withhold 5 percent of the funds appropriated by this Act under the heading “Contributions to International Organizations” for a specialized agency or other entity of the United Nations if the Secretary, in consultation with the United States Ambassador to the United Nations, determines and reports to the Committees on Appropriations that such agency or entity has taken an official action that is against the national security interest of the United States or an ally of the United States, including Israel.” [No other interest or ally is identified). Release of the funds is conditioned on certification that “such agency or entity is taking steps to address the action that resulted in the withholding of such funds.” The section permits withheld funds to be reprogrammed for other purposes under the same heading, and also permits the Secretary of State to waive the withholding if he determines that to do so is in the national interest. The accompanying report states, “Not later than 90 days after enactment of the act, the U.S. Ambassador to the United Nations shall submit a report to the Committee describing instances of anti-Israel bias at the United Nations, including an identification of the agencies and entities where such bias has been demonstrated in the past.”

 

The report accompanying the bill notes: “Subsection (j) provides a withholding of 5 percent of the funds appropriated by the act under the CIO heading if the Secretary of State determines and reports to the Committee that a U.N. specialized agency or other entity has taken an official action that is against the national security interest of the United States or a U.S. ally, including Israel. Withheld funds can either be released if the Secretary determines and reports to the Committee that such agency or entity is taking steps to address the action, or reprogrammed for activities under the CIO heading.” The report also requires that, “Not later than 90 days after enactment of the act, the U.S. Ambassador to the United Nations shall submit a report to the Committee describing instances of anti-Israel bias at the United Nations, including an identification of the agencies and entities where such bias has been demonstrated in the past.”

 

In addition, the report notes that the bill does not include a US contribution to the UN Human Rights Council [it also leaves out perennial text conditioning funding for the UNHRC], as the administration has withdrawn US participation. The report notes that, “In lieu of the estimated U.S. contribution to the Council in fiscal year 2019, the Committee recommends $7,670,000 for additional democracy and human rights programs under the DF [Democracy Fund] heading.

 

Sec. 7049 Law Enforcement and Security

Part (c)(3), entitled “Crowd Control Items,” states that “Funds appropriated by this Act should not be used for tear gas, small arms, light weapons, ammunition, or other items for crowd control purposes for foreign security forces that use excessive force to repress peaceful expression, association, or assembly in countries in countries that the Secretary of State determines are undemocratic or undergoing democratic transition.”

 

Sec. 7056(g): Commercial Leasing of Defense Articles

This section permits financing to Israel, Egypt, NATO member and major non-NATO allies for the procurement by leasing (including with an option to purchase) defense articles from United States commercial suppliers, “not including Major Defense Equipment (other than helicopters and other types of aircraft having possible civilian application), if the President determines that there are compelling foreign policy or national security reason for those defense articles being provided by commercial lease rather than by government-to-government sale under such Act.”

 

Sec. 7060(g): Reconciliation programs

This subsection states that “Of the funds appropriated by this Act under the headings “Economic Support Fund” and “Development Assistance”, not less than $30,000,000 shall be made available to support people-to-people reconciliation programs which bring together individuals of different ethnic, religious, and political backgrounds from areas of civil strife and war: Provided, That the USAID Administrator shall consult with the Committees on Appropriations, prior to the initial obligation of funds, on the uses of such funds, and such funds shall be subject to the regular notification procedures of the Committees on Appropriations: Provided further, That to the maximum extent practicable, such funds shall be matched by sources other than the United States Government: Provided further, That such funds shall be administered by the Office of Conflict Management and Mitigation, USAID.”

 

The Report notes funds made available pursuant to subsection (a)(2) of this section “shall be made available for programs to rescue scholars from countries in the Middle East and other regions where their lives are threatened on account of their academic pursuits.”

 

Sec. 7065 Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

This section bars funding “to support or justify the use of torture and other cruel, inhuman, or degrading treatment or punishment by any official or contract employee of the United States Government.”

 

Sec. 7069 Stabilization and Development in Regions Impacted by Extremism and Conflict

Part (b)(4) of this section states that of the funds appropriated in prior Acts making appropriations for the Department of State, foreign operations, and related programs that are made available for the Relief and Recovery Fund, not less than the following amounts shall be made available (in addition to other funds made available in this Act): Iraq - $100,000,000; Syria - $100,000,000; Jordan - $50,000,000; Libya - $50,000,000; Tunisia - $50,000,000; Lebanon - $25,000,000.

The report notes, “The Committee recommends $3,000,000 to continue a scholarship program for refugees in Lebanon of any nationality who have completed secondary education.”

 

Sec. 7076(b) Spend Plans

This section requires that with respect to specific aid recipients, “Prior to the initial obligation of funds, the Secretary of State or Administrator of the United States Agency for International Development, as appropriate, shall submit to the Committees on Appropriations a spend plan for funds made available by this Act for assistance for Afghanistan, Iraq, Lebanon, Pakistan, and the West Bank and Gaza.




 

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