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Examining the 3 Palestinian-Punishment Focused Efforts in the Senate

As of this writing, three initiatives have been introduced in the Senate over the past 18 hours or so aimed at punishing the Palestinians (and others) for the current Palestinian initiative at the UN.  All have been in the form of amendments to S. 3245, the National Defense Authorization Act (NDAA) -- a piece of must-pass legislation that happens to be under consideration in the Senate right now (making it a prime target for opportunistic legislative riders). 

These amendments were offered, notwithstanding the fact that there is nothing related to funding or programs for the Palestinians or the United Nations in the NDAA.  

The amendments are: SA 3139, SA 3171 and SA 3203. SA 3139 and SA 3171 are partisan (supported only by Republicans) and, in their substance and drafting, pretty ham-fisted.  SA 3203 is also pretty ham-fisted, but it is bipartisan and could be viewed as more "reasonable" and "moderate" than the other two amendments, and in effect is more broadly consistent with the tone that Israel is increasingly taking (i.e., that the UN vote to upgrade the Palestinians' status isn't really important; what is really important is what happens next).  It thus seems likely that the real action on this issue will be around SA 3203.  In that context, the other two amendments play a useful role in making SA 3203 look measured and "reasonable" by comparison.

SA 3203 is offered by Senators Graham (R-SC), Schumer (D-NY), and Barrasso (R-WY).  It would prohibit all aid to the Palestinian Authority if the International Criminal Court "adjudicates any matter proposed or supported by the Palestinian Authority or any other entity, legally recognized or otherwise, that purports to represent the interests of the Palestinian people."  This wording is interesting, in that the onus of responsibility falls on the ICC, not the Palestinians.  Under this language, a Palestinian effort to gain standing at the ICC, or even a Palestinian effort to bring a case to the ICC, would NOT trigger an aid cut off.  What would trigger the cut-off would be the decision of the ICC to adjudicate a case in which the Palestinians were involved (a threat that is almost certain to outrage many at the UN, as it represents a pretty direct effort to interfere in the ICC's independence in deciding what cases to adjudicate).  

Moreover, either intentionally or due to incredibly poor drafting, this language would impose a cut-off in aid in the case that the ICC adjudicates any matter "supported" by the PA.  This means that that even if the Palestinians decided not to try to gain standing in the ICC or file any case there against Israel, the mere fact of the PA expressing support for another country's case in the ICC - even outside the context of the United Nations itself, or even a case entirely unrelated to Israel - would trigger the aid cut.  

Notably, this language includes no waiver -- as in, the cut-off of aid could not be waived even if U.S. national security is involved.  Moreover, as-written, the cut-off in aid would not expire or sunsets with the passage of time or changing conditions  (i.e., if aid to the PA were cut off, it would stay cut off forever - or at least until the law is changed , which based on experience is the same as forever).

In addition, this amendment would force the closure of the PLO representative office in the U.S. unless the President determines and reports to Congress that "the Palestinians have entered into direct and meaningful negotiations with Israel."  This wording, too, is interesting.  It includes no grace period and as written would in effect require a constant re-affirmation of the determination - as opposed to a determination made, say, every 90 or 180 days.  It also permits no "wiggle room" for efforts to re-start or keep alive negotiations once they have started.  This, if this language became law today, the PLO office would have to be closed immediately.  Likewise, it would mean that if negotiations were underway and broke down FOR A SINGLE DAY, the office would be kicked out of the U.S. 

Moreover, the wording begs the question: how do the drafters define "meaningful"?  As written, the forced closure of the PLO office is as much a function - objectively speaking - of the Israeli government's positions and actions as it is a function of those of the Palestinians.  Given the composition of the new Likud elections list, which is dominated by candidates who support settlement expansion across the entire West Bank (some even support rebuilding settlements in Gaza) and oppose the two-state solution, it is unclear how the drafters of the amendment expect the Palestinians, on their own, to satisfy the requirement that negotiations be "meaningful." It is equally unclear why the drafters feel it is reasonable that this requirement fall only on one party to negotiations.  

And again, this sanction includes no national security waiver - meaning that, as was the case in the past, if passed into law Congress would be adopting a policy of cutting of America's nose (i.e., its ability to engage the Palestinians diplomatically for the sake of U.S. interests) to spite its face.  Bearing in mind that even the Cubans have for years been permitted to maintain an "interests section" in the United States...

SA 3171 is offered by Senators Hatch (R-UT), Roberts (R-KS), Chambliss (R-GA), Barrasso (R-WY), Inhofe (R-OK), Wicker (R-MI), Lee (R-UT), Coburn (R-OK), Risch (R-ID), and Rubio (R-FL).  It would bar all U.S. funding to the United Nations in the event that the UNGA votes to upgrade the status of the Palestinians in any manner whatsoever.   In a November 28th op-ed in the New York Jewish Week, Douglas Bloomfield speculated that the apparent underlying goal of the amendment is to pull the U.S. out of the UN, killing, as he puts it, two birds with one stone.  

SA 3139 is offered by Senators Barrasso (R-WY), Lee (R-UT), and Inhofe (R-OK).   The amendment would cut U.S. assistance to the Palestinians by 50% if the PA "seeks at any time after November 25, 2012, at the United Nations General Assembly or any other United Nations entity status different than the status it held on November 25, 2012" -- with such cuts continuing "until permanent status issues between Israel and the Palestinian Authority are fully resolved."  It would also cut by 50% U.S. contributions to any UN entity that in any way upgrades the Palestinians' status. Finally, it would cut by 20% U.S. assistance to any country that votes to in any way upgrade the Palestinians' status.  Additional observations about the amendment from APN are available here.

Finally, Senator Barrasso - who apparently has decided to take a leading role in the campaign to teach the Palestinians (and the UN, and the world) a lesson - published an op-ed 11/29/12 in the National Review Online laying out his passionate belief in a negotiated solution between Israel and the Palestinians.  In it he notes, apparently no sense of irony, that "The 1995 Oslo II Agreement and the 1998 Wye River Memo prohibit either side from 'chang[ing] the status of the West Bank and the Gaza Strip'" - notwithstanding the fact that over the past 20 years, Israel has acted to dramatically and in material, concrete ways alter the status of land in the West Bank, as well as to effectively sever the West Bank and Gaza.