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Legislative Round-Up - April 7, 2006

I. Update on Pal Sanctions Bills; II. Supplemental Update; III. APN on New Version of HR 4681

for the week ending April 7, 2006

I. Update on Pal Sanctions Bills
II. Supplemental Update
III. APN on New Version of HR 4681

Note: Beginning Monday, Congress will be in recess until April 24th.


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I. UPDATE ON PALESTINIAN SANCTIONS BILLS ======================================

On April 6th the House International Relations Committee marked-up HR 4681, the Palestinians sanctions bill (see previous editions of the Round-Up for details on the history of this bill or a listing of all items related to Palestinian Sanctions Legislation including the Round-Up's).

As expected, after extensive and tough behind the scenes negotiations - referred to repeatedly during the mark-up by Reps. Lantos (D-CA), Hyde (R-IL), Ros-Lehtinen (R- FL) and others - the Committee was asked to vote on a new text of the bill in the form of a managers' amendment. The new text, which was circulated late evening on April 4th, includes some notable improvements over the original, but also preserves many of the biggest problems of the original. The bill text is analyzed in detail in section II, below.

In Committee two amendments were offered to the Managers' Amendment - one by Rep. Sherman (D-CA), and the other by Rep. Berkely (D-NV). Both amendments sought to further restrict all assistance to the Palestinians. Reps. Lantos and Ros-Lehtinen both strongly objected to the amendments, on the grounds that they would unreasonably punish the Palestinian people, and on the grounds that the Managers' Amendment represented a carefully crafted compromise that should not be tampered with. In the end, both amendments were withdrawn. A third amendment from Rep. Issa (R-CA) was also withdrawn, ostensibly because its only purpose was to offset the negative impact of the Berkley and Sherman amendments - something that was not necessary to do since those amendments were withdrawn.

The Managers' Amendment was adopted by the Committee by a voice vote (i.e., no recorded vote). The Committee then moved to vote on HR 4681, as amended, at which point Rep. Lantos demanded a recorded vote. The measure passed by a vote of 36-2, with Reps. Blumenauer (D-OR) and McCollum (D-MN) voting no.

At some point in the coming days or weeks HR 4681 will be reported out of the HIRC, and it is rumored that there will be an effort to bring the measure to the House floor soon after the House reconvenes after its Spring recess. However, it should be noted that two additional committees have jurisdiction over the measure, which when it was introduced was referred not only to the HIRC, but also to the Judiciary Committee and the House Financial Services Committee (which on March 31st referred it to the Subcommittee on Domestic and International Monetary Policy, Trade, and Technology). For the measure to be brought to the House floor at this point, both of those Committees would have to first agree to waive jurisdiction.

Finally, the past week saw another round of furious lobbying efforts to get more cosponsors on HR 4681, with members and staff reportedly being told that it was vital that they get on board right away, before the mark-up, and their concerns would be taken care of in the amended text (which was reportedly generally not made available as part of this lobby effort). This lobbying paid off handsomely, to the tune of 50 new cosponsors signing on on April 6th (the day of the mark-up), and 19 new cosponsors on April 4th - leaving a grand total of 271 cosponsors as of April 7th. This is well over the target of one-half of the House, meaning supporters of the bill can now argue that regardless of whether it is brought to a vote, the measure has effectively been passed.

With respect to S. 2370, similar lobbying in the Senate had a similarly impressive payoff, with 13 additional Senators signing on as cosponsors this week, raising the total to 79.


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II. FY06 SUPPLEMENTAL UPDATE ======================================

On April 5th the Senate Appropriations Committee took up HR 4939, the FY06 Emergency Supplemental Appropriations bill. As per usual practice, the Committee deleted the entire House text and replaced it with its own, new text:

House version: "None of the funds appropriated in Public Law 109-102 or any prior Act making appropriations for foreign operations, export financing and related programs may be obligated or expended for assistance to the Palestinian Authority or a successor entity until the Secretary of State certifies to the Committees on Appropriations that such entity has demonstrated its commitment to the principles of nonviolence, the recognition of Israel, and the acceptance of previous agreements and obligations, including the Roadmap."

Senate version: "Section 550 of Public Law 109-102 (119 Stat. 2217) [i.e., the provision in the FY06 ForOps Approps bill relating to aid for the Palestinian Authority, which includes a Presidential national security waiver], is amended to read as follows:

"SEC. 550. PROHIBITION ON ASSISTANCE- None of the funds appropriated by this Act or any prior Act making appropriations for foreign operations, export financing, and related programs, may be obligated or expended for assistance for the Palestinian Authority unless the Secretary of State determines, and so reports to the Committees on Appropriations, that the Palestinian Authority has-

"(1) publicly acknowledged Israel's right to exist as a Jewish state; "(2) renounced violence; and "(3) accepted and is adhering to all previous diplomatic Agreements and understandings with the United States Government, the Government of Israel, and the international community."

Comparing the two versions, the Senate version clearly imposes much tougher requirements. With respect to recognition of Israel, the Senate version echoes HR 4681 and S. 2370 by demanding not only recognition of Israel by Hamas, but recognition of Israel's "right to exist as a Jewish state." The House required only that the PA "has demonstrated recognition of Israel." Similarly, with respect to the PA's position on previous agreements, the House version requires the PA to have demonstrated "the acceptance of previous agreements and obligations, including the Roadmap" (consistent with the Quartet demand), while the Senate demands that the PA has "accepted and is adhering" to all prior agreements.

It is worth noting that neither version includes the usual Presidential national security waiver. During the Senate mark-up of the bill, ForOps Ranking Minority Member Leahy (D-VT) commented that he had not heard anyone from the Administration asking that such a waiver be included, and that he was not going to do the "heavy lifting" for the Administration in this matter.

The measure will now move to a House-Senate conference where differences between the two versions will be worked out.


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III. APN ON NEW VERSION OF HR 4681 =======================================

On the morning of April 5th APN sent the following analysis of the Managers' Amendment to all staff of the House International Relations Committee (based on amendment text dated April 4, 2006, 7:41pm), along with a table providing a side-by-side comparison of the original and new texts:

COMPARISON OF HR 4681 - ORIGINAL TEXT vs. MANAGERS' AMENDMENT

Section-by-Section Summary

---------------------------------
Declaration of Policy [Sec. 2(a)]
---------------------------------

>GOOD NEWS

- This section now includes reference (in the first clause) to U.S. support for a two- state solution and the Roadmap, providing a more accurate depiction of U.S. policy and a political horizon.

> BAD NEWS

- The provision still includes a seemingly exhaustive list of U.S. demands for Palestinian reform - demands that, while indeed important, are not fundamental benchmarks for U.S. engagement with the Palestinians or in any way related to the success of Hamas in the recent election. By including these, it appears that a bill that is ostensibly about terrorism and the results of the Palestinian elections is actually a pretext for setting far-reaching U.S. policy regarding the Palestinians, now and in the future, regardless of the presence or absence of terrorists in the Palestinian Authority. In doing so, the measure risks undermining the strength and seriousness of its own anti-terror message; bolstering the argument that the U.S. is setting Hamas up to fail, rather than seriously and meaningfully challenging Hamas to change; and undermining Palestinian moderates who the U.S. should be supporting.

> RECOMMENDATION

Demands that are not focused on fundamental elements of U.S. policy regarding the quest for peace and engagement with the Palestinians should be deleted, and demands focused on long-term reform goals should either be deleted or changed into a Sense of Congress.

--------------------------------------------
Ban on Aid to the Palestinian Authority [Sec. 2 (b)]
--------------------------------------------

>GOOD NEWS

- The Managers' Amendment removes a key phrase from the limitation on U.S. assistance to the Palestinian Authority: "under any other provision of law." In doing so, it narrows the scope of the limitation to funds provided under the ForOps bill, allowing the President, at least in theory, to use funds available under other provisions of law (e.g., emergency contingency funds) for direct aid to the PA.

- The amended version includes limited exceptions to the ban on direct aid, to include assistance for "independent elections commissions" and assistance "to support the Middle East Peace Process."

> BAD NEWS

- The amendment continues to fail to provide the President with a national security waiver of the limitation- a standard component of virtually all sanctions legislation, since U.S. national security should never be made secondary to any other policy goal. Also on the negative side, the bill includes a Sense of Congress making it clear that the intent of Congress is for the President to view the ban on aid to the PA as applying to all funds available to him, regardless of the provision of law under which they are provided. It is worth noting that the one instance when President Bush circumvented a Congressional restriction on aid to the Palestinians by dipping into a different category of funding, Congress responded by cutting that same source of funding in the subsequent appropriations cycle by exactly the amount he had provided to the Palestinians.

- For each exception, the President must meet additional certification requirements that are far-reaching and potentially impossible to fulfill.

> RECOMMENDATION

- A real national security waiver should be added, as well as meaningful exceptions to allow U.S. aid to flow, with appropriate oversight, to support key U.S. interests and priorities.

----------------------------------------
Certification Requirements - Sec. 2 (b)
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The Managers' Amendment alters slightly the terms of the required President certification (on which all of the bill's sanctions are based).

>GOOD NEWS

- The Managers' Amendment improves slightly on the original in terms of establishing a more reasonable benchmark in terms of the presence of members of an FTO in the PA. While the original version stipulates that the certification (which is the basis for all the sanctions in the bill) cannot be made if any person who is in any way associated with a foreign terrorist organization is working in any part of the PA - an impossible standard that has never been imposed and would be impossible to certify - the amended version includes a more focused standard, requiring that no part of the PA is controlled by an FTO and no member of an FTO serves in a "senior policy making position."

> BAD NEWS

- The Managers' Amendment still undermines the achievement of top priorities - stopping terror and pressing Hamas to reform - by piling on unrealistic certification requirements, requirements that, while important, are not as important as saving lives. The amended version also still includes the demand that Hamas recognize Israel as a "Jewish" state - a demand that has never been made in the past and should not be placed on the same level of priority as the demand that Hamas renounce the use of violence and terror.

- The Managers' Amendment still includes in the certification requirement the laundry list of reforms and benchmarks that are totally unrelated to terror and the recent victory of Hamas in the elections. By including these, the bill undermines the strength of its own anti-terror message, bolsters the view that the U.S. is setting Hamas up to fail (rather than issuing a serious challenge), and undermines the very moderates the U.S. should be supporting.

- The Managers' Amendment preserves language from the original that explicitly defines the Palestinian Authority as including the Palestinian Legislative Council. In doing so, the bill deliberately extends sanctions not only to Hamas members and those working under their authority but, perversely, to all elected members of the PLC, including those who oppose violence, recognize Israel, and support a two-state solution. This definition is inaccurate, since there is a clear difference between the Government and the elected legislative body. It is also ill-conceived, seeking to punish Palestinians who recognize Israel, reject terror, and support the Road Map - apparently for the crime of having successfully competed (against Hamas) in free and fair democratic elections. This "definition" has no real impact on members of Hamas and other foreign terrorist organizations - who are already subject to far-reaching anti-terror legislation - but rather impacts only those members of the PLC who are not supporters of terror - i.e., the very Palestinians the U.S. should be supporting and cultivating.

> RECOMMENDATION

- Serious benchmarks should focus on real priorities - ending terror and setting achievable standards and conditions in terms of the character and composition of the PA and Hamas internal reform and actions to fight terror. Other requirements should be deleted or moved into a Sense of Congress. Important as some of the non-terror these reforms may be, neither the U.S. nor Israel has ever considered them a prerequisite for engaging with the PA. Moreover, the PA - under any leadership - will likely be unable to meet these requirements outside the context of progress towards a peace agreement.

- The "definition" of the Palestinian Authority should be re-written to include only the Hamas-dominated Cabinet and agencies, ministries, and instrumentalities controlled by the Cabinet.

-------------------------------------------
Sunset Clause - omitted in both versions [should be part of Sec. 2(b)]
-------------------------------------------

>GOOD NEWS

- none.

>BAD NEWS

- The Managers' Amendment, like the original, omits a key element of any effective sanctions legislation: a sunset clause. Such a clause would provide a clear political horizon for the Palestinian people and moderates political leaders. A sunset clause is a standard component of any serious sanctions legislation, and was included, for instance, in the Iran and Libya Sanctions Act (ILSA). The omission of such a clause here is inexplicable and undermines the seriousness of the anti- terror, pro-reform message of the bill.

> RECOMMENDATION

- The bill should be amended to include a sunset clause linked to the next Palestinian elections and the formation of the next government. Including such a clause would provide a clear political horizon of Palestinians who are not affiliated with Hamas or any foreign terrorist organization, and would permit the U.S. to meet positive new developments on the Palestinian front with an effective and constructive policy response.

-----------------------------------------
Ban on Aid for the West Bank and Gaza (Sec. 3)
-----------------------------------------

>GOOD NEWS

-In the original version, the ban on aid for the West Bank and Gaza would apply to all U.S. funds available to the President under any provision of law. The amended version narrows the scope of the limitation to funds provided under the ForOps bill, allowing the President, at least in theory, to use funds available under other provisions of law (e.g., emergency contingency funds) for aid to the West Bank and Gaza.

- The amended version shortens the required advance notification period for assistance (other than in the one exempted category of assistance for basic human health needs) from an unworkable 45 days to a more realistic 25 days.

>BAD NEWS

- The amendment continues to fail to provide the President with a national security waiver of the limitation - a standard component of virtually all sanctions legislation, since U.S. national security should never be made secondary to any other policy goal, and a necessary addition if the President is to be able to act quickly in the case of a catastrophic event. Also on the negative side, the bill includes a Sense of Congress making it clear that the intent of Congress is for the President to view the ban on aid to the PA as applying to all funds available to him, regardless of the provision of law under which they are provided. It is worth noting that the one instance when President Bush circumvented a Congressional restriction on aid to the Palestinians by dipping into a different category of funding, Congress responded by cutting that same source of funding in the subsequent appropriations cycle by exactly the amount he had provided to the Palestinians.

- The amendment continues to provide only very limited exceptions to the ban on aid for the West Bank and Gaza, and for all purposes other than assistant to meet "basic human health needs, " requires the President to certify not only that the provision of such aid will further the national security interests of the U.S., but also an explanation of "how failure to provide the proposed assistance would be inconsistent with furthering the national security interests of the United States."

>RECOMMENDATION

- The exceptions under which aid may be provided should be expanded and a real national security waiver should be added to permit the President to act quickly under emergency circumstances or in the case of a change in the political situation.

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UN Reform (Sec. 4)
------------------

>GOOD NEWS

- The amended version makes withholding of dues from the UN optional, rather than mandatory.

>BAD NEWS

- This provision should have been removed entirely. It is completely unrelated to Hamas or the elections. By including this provision, the bill risks undermining the message to Hamas and the Palestinian people about violence and terror, and sending the message that the real goal of the legislation is to punish and humiliate all Palestinians in every possible forum. It also risks undermining the UN's leverage in the West Bank and Gaza at a time when efforts of UN agencies, particularly in the humanitarian arena, are going to be more important than ever.

>RECOMMENDATION

- This section should be deleted or re- written to focus on UN issues directly related to the results of the Hamas election, like the role of UNRWA in the post-election era, and the safeguards and oversight mechanisms that the UN is putting in place to ensure that no UN funds support terror.

-----------------------------
Terrorist Sanctuary (Sec. 5)
-----------------------------

>GOOD NEWS

- none.

>BAD NEWS

-The amended version still includes this Sense of Congress, which sends the message that Congress is targeting not only the PA but the entire Palestinian economy and private sector (since, if the language were viewed as binding by the Administration, it would require, among other things, an export license for any U.S. goods exported to the West Bank and Gaza except for medicine, medical supplies, and certain food exports.) It also sends a chilling signal to private sector investors and the financial services industry.

>RECOMMENDATION

- This section should be deleted.

----------------
Visas (Sec. 6)
----------------

>GOOD NEWS

- none.

>BAD NEWS

-The amended version still includes this provision which targets, perversely, elected members of the Palestinian Legislative Council who are not members of foreign terrorist organizations (since members of Hamas and other foreign terrorist organizations are already barred by U. S. law from obtaining visas). This extraneous provision thus punishes the wrong people. The amended version includes the same very limited, case-by-case Presidential national security waiver as the original. It also includes an additional "waiver" for visas for Palestinian representative to the UN - consistent with the legal obligations of the U.S. as home to the headquarters of the United Nations.

>RECOMMENDATION

- This section should be deleted or amended to apply only to PLC members who are affiliated with a foreign terrorist organization.

-------------------------------
Palestinians at the UN (Sec. 7)
-------------------------------

>GOOD NEWS

- The amended version leaves out the phrase "notwithstanding any other provision of law," leaving some potential room for maneuver by the President via some other provision of law that is more consistent with U.S. interests.

>BAD NEWS

-The amended version includes the same pointless restriction on Palestinian officials at the UN. Under the terms of agreements signed with Israel, the PA does not maintain international diplomatic relations. The PA thus is not represented at the UN - only the PLO is. This provision would only impact the PLO, which is not a foreign terrorist organization, recognizes Israel, and of which Hamas is not a member.

>RECOMMENDATION

- The reference to the PLO should be removed from this provision.

--------------------------------------------
Palestinian Representation in the U.S. (Sec. 8)
--------------------------------------------

>GOOD NEWS

- The amended version provides the President the ability to waive the ban on the maintenance of a PLO office in the U.S. for a period of 180 days at a time if he certifies that it is vital to the national security of the United States to do so. Additional language added in a later version of the amendment also required the President to explain how failure to waive the ban "would be inconsistent with the vital national security interests of the United States."

>BAD NEWS

- The amended language includes this same self-defeating provision as the original. It is self-defeating because under the terms of agreements signed with Israel, the PA does not maintain international diplomatic relations, including with the U.S., so the PA does not maintain a representative office in the U.S. - only the PLO does. So the effect of this provision would be to cut off dialogue with a group that recognizes and has signed agreements with Israel, which is not a terrorist organization, and which supports a two-state solution and the Road Map.

>RECOMMENDATION

- The reference to the PLO should be removed from this provision.

--------------------------------------
International Financial Institutions (Sec. 9)
--------------------------------------

>GOOD NEWS

- The wording of this section has been changed to give the President some flexibility (going from "the President shall direct" to "it shall be the policy of the U.S. to...").

>BAD NEWS

- The provision does not include any exceptions, including exceptions consistent with those stipulated in the section on U.S. aid to the PA and the West Bank/Gaza (i.e., basic human needs, elections, peace process)

>RECOMMENDATION

- Exceptions should be included to support aid from international financial institutions to support key U.S. interests, like basic human needs and democracy promotion.

---------------------------------------
Diplomatic Contacts with Palestinian Terrorist Organizations (Sec. 10)
---------------------------------------

>GOOD NEWS

- The wording of the amended version has been amended from a binding ban on all U.S. government contacts (made effective by linking it to the use of U.S. funds, over which Congress has control), to a declaration of policy, which in legal terms is advisory but not binding (and is not linked to the use of U.S. funds).

>BAD NEWS

- The amended version still includes this section, which is unnecessary given that under existing U.S. policy U.S. officials do not have any contact with members of Foreign Terrorist Organizations (and implies, incorrectly, that U.S. officials are having contacts with such groups).

>RECOMMENDATION

- This section serves no real purpose and should be deleted.


For more information, contact APN Government Relations Director Lara Friedman at 202/728-1893, or at lfriedman@peacenow.org.