Setting the Record Straight: U.S. Law & the new PA government

There’s a lot of talk these days – from pundits, lobbyists, members of Congress, and others – to the effect that according to U.S. law, the Obama Administration must cut off all aid to the Palestinian Authority now that a new government is in power, a government that was produced out of a PLO-Hamas reconciliation agreement.

Regrettably, most of this talk appears to be informed more by anger, opinion, or wishful thinking than a careful analysis of the actual laws in question.   And as always, while every person is entitled to his or her own opinion, there is only one set of facts.  So now it's time to set the record straight.

Congress has long had concerns about possible Palestinian unity/reconciliation efforts.  That's why Congress has put itself very clearly on the record when it comes to Hamas participation in a Palestinian government.  Of the various laws passed since the 2006 Palestinian legislative elections, the most recent – HR 3547, aka the FY14 Consolidated Appropriations Act, signed into law 1/17/14  – ties then all neatly together.  That law stipulates (in Sec. 6070(f), entitled “Prohibition to Hamas and the Palestine Liberation Organization,”) the following:

(1)   None of the funds appropriated in titles III through VI of this Act may be obligated for salaries of personnel of the Palestinian Authority located in Gaza or may be obligated or expended for assistance to 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.

 (2)   Notwithstanding the limitation of paragraph (1), assistance may be provided to a power-sharing government only 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 [click here to see that bill text].

 (3)   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. [click here to see that bill text].

 (4)   Whenever the certification pursuant to paragraph (2) is exercised, the Secretary of State shall submit a report to the Committees on Appropriations within 120 days of the certification and every quarter thereafter on whether such government, including all of its ministers or such equivalent are continuing to comply with the principles contained in section 620K(b)(1) (A) and (B) of the Foreign Assistance Act of 1961, as amended: Provided, That the report shall also detail the amount, purposes and delivery mechanisms for any assistance provided pursuant to the abovementioned certification and a full accounting of any direct support of such government.

 (5)   None of the funds appropriated under titles III through VI of this Act may be obligated for assistance for the Palestine Liberation Organization.

 What does this mean in the current situation with respect to the legality of continued U.S. assistance to the PA?  Simply stated, one three possible scenarios applies:

  1.  Scenario 1:  Under (1), above, if the U.S. concludes that the new PA government is one that is not controlled by Hamas, and is one in which Hamas is not itself a member of, and is one over which Hamas does not exercise "undue influence," there is no prohibition under US law to US assistance to it.
  2. Scenario 2: Under (2), above, if the US concludes that what the new government is a power-sharing government with Hamas over which Hamas exercises undue influence, then the question becomes: what is the character of the government and its members.  Under this paragraph, if the President can certify that every minister and minister equivalent has accepted and is complying with the Quartet conditions (this is the reference to 620K of the earlier law - law that was written to apply if Hamas is actually controlling a "ministry or instrumentality" of the PA but under this paragraph is now required in this case of lesser Hamas involvement), there is no prohibition under US law to US assistance to it.   If he cannot make this certification, then aid must be cut off.
  3. Scenario 3:  Under(3), above, if the US concludes that the new government is a power-sharing government with Hamas over which Hamas exercises undue influence, and cannot certify that every minister or minister equivalent meets the Quartet conditions, then the President can still waive the prohibition on funding to this new PA, but only for certain categories of assistance -- aid for the office of the PA president; aid to help the President of the PA fulfill specified duties (related to security, promoting the peace process, promoting democracy and rule of law; aid to the Palestinian Judiciary "and other entities") and only if he can certify, among other things, that the funds are not going to an individual or entity associated with or controlled by Hamas or any other terrorist organization.

Those are the three potential scenarios under current US law. So where are we today?

As things look today, it seems clear that, objectively speaking, Scenario 1 applies: the new PA is an apolitical, technocratic government over which Hamas has no undue influence, at least as anyone has seen thus far.  This means that there is no legal requirement to cut off aid to the PA.

Others may argue that Scenario 2 applies, that is, that the new PA by definition is unduly influenced by Hamas, since Hamas agreed to its formation.  If this argument is accepted, the question is then: does the new PA meets the conditions set forth in U.S. law, as discussed above? Based on the assurances of PA President Abbas and PA Prime Minister Hamdallah, the answer today appears to be an emphatic “yes.” This means that as of now, there is no legal requirement to cut off aid to the PA, and that there will be no such requirement so long as the new PA’s policies and behavior comport with these assurances.

As for Scenario 3, it is difficult to see how anyone could suggest that this scenario applies.  There are no members of the new government who are affiliated directly with Hamas; as noted above, it is hard to make a serious case (at least so far) of undue Hamas influence; and even if the case were made of undue Hamas influence, the new PA (so far) explicitly accepts and has committed to abiding by the principles stipulated in U.S. law.  Given all of this, there is no legal requirement to cut off aid in the first place, and thus no requirement to seek a waiver in order to continue any part of it.

What does this mean in terms of what Congress will do? In short, it comes down to a simple question: Will Congress be willing to take “yes” for an answer from the Palestinians, when it comes to the Palestinians meeting the detailed conditions set out by Congress previously in U.S. law?  As of this writing, the likely answer, regrettably, appears to be “no.”

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