At the conference the Netanyahus peddled a novel view of terrorism that presented it as a satanic threat from irrational, demonic enemies that was anathema to Western values of freedom and democracy and aimed to destroy the West itself. In order to save themselves, Benzion Netanyahu argued, Western countries had to abandon commitments to international law and multilateral, UN-led action and instead use whatever means necessary to annihilate the threat of terrorism.
To the Americans at the conference, the new definition was appealing. It could be used to challenge popular skepticism about U.S. military force following Vietnam: if terrorists presented a real, existential threat to the United States, it was both desirable and necessary to use U.S. military force to confront that threat from wherever it might emanate. It was also appealing to the neocons as a tool to be used in the United States’ struggle against the Soviet Union, in order to recast the Soviet Union as a purveyor and sponsor of terrorism threatening the West.
For the Netanyahus, however, the concept of terrorism served a different objective, namely, to equate the “evil” of terrorist activity with Arabs and Muslims generally—and Palestinians in particular. In drawing these connections, the Netanyahus hoped that questions about the political legitimacy of the Israeli occupation could be pushed under the rug and Palestinian resistance to it would become a stand-in for the West’s besiegement by Islamist terrorism.
The 1979 conference marked the beginning of sustained Israeli-led efforts to reshape U.S. law and policy to delegitimize Palestinian efforts at self-determination and liberation. In the years since the conference convening, U.S. law has systematically singled out Palestinians for discriminatory treatment in both explicit and implicit ways—more so than any other population and certainly no other population of such comparatively small size. These laws, which exist at both the federal and state level, have effectively transformed the U.S. legal system into an extension of the Israeli state itself.
Many of these laws frame Palestinians as “terrorists” and treat certain kinds of support for the Palestinian cause as tantamount to supporting terrorist activity. More recently, Israel and its allies have adopted yet another strategy to quash pro-Palestine advocacy, which focuses on and promotes an expanded notion of anti-Semitism that includes criticism of Israel. Using this approach, these groups have succeeded in passing laws that depict support and advocacy for Palestine as anti-Semitic and illegitimate no matter how peaceful.
Together, the desire to combat so-called terrorism and anti-Semitism have formed the conceptual basis for much of the U.S. legal onslaught against Palestine and the Palestinians by Israel and its allies. In both shaping and using these U.S. laws, Israel and its supporters have framed the Israeli state as the victim while reinforcing the subjugation of Palestinians living under Israeli control. Through this weaponization of law, Israel has used the so-called objective neutrality of “law” to whitewash dehumanizing narratives about Palestinians—as evil, anti-Semitic, and appropriate targets of public and private violence. Since the armed attack inside Israel by Palestinian groups on October 7, law has been used yet again to further and reinforce these pre-existing narratives about Palestinians and the Palestinian cause.
While the U.S. laws described in this article are either explicitly or implicitly focused on Palestine, they are just the tip of the iceberg. There are many other ways Israel and its allies have shaped and used U.S. law to demonize Palestinians and target pro-Palestine advocacy, including by leveraging laws that are neither implicitly nor explicitly motivated by the Palestine issue. While far from a comprehensive overview, the laws described here provide a sense of how extensively Israeli narratives and policies on Palestine have penetrated the U.S. legal system, to the detriment of Palestinians and their allies.
The story of Israeli lawfare against Palestinians begins with the concept of terrorism. Prior to the 1970s, terrorism—a fraught term that at its core describes politically motivated violence aimed at coercing a government or population—was infrequently used. Indeed, it was far more common for events we now associate with terrorism—like hijackings and bombings—to be described as forms of “insurgency” than “terrorism.” These insurgencies were understood as driven by concrete and understandable grievances rather than by evil or immoral intentions. For instance, mid-twentieth century analysis of violent revolutionary movements—occurring in places as wide-ranging as Vietnam, Kenya, Cyprus and Northern Ireland—typically framed those formations as engaged in strategic opposition to a ruling regime motivated by causes like colonialism and racism.
When analysts did use the terms “terror” or “terrorism,” they carried no moral valence and did not serve as markers of despicable or morally impermissible behavior. Instead, as international relations scholar Lisa Stampnitzky explains in Disciplining Terror: How Experts Invented ‘Terrorism’ (2013), terrorism was typically used to denote “but one stage in a broader process of insurgency or revolution—a stage through which groups could pass without permanently tainting their reputations.” Because terrorism was viewed as a strategy or tactic, analysts applied it to both state and nonstate actors alike. For example, as late as the mid-1970s, “terrorism” was used to describe the actions of nonstate groups, like the pro-Palestinian Black September organization, as well as the acts of countries—like Israel’s occupation of Palestinian lands.
In the late 1970s, as terrorism began to be used more frequently in U.S. discourse, its meaning also began to shift. For the first time, terrorism became a moral framework used by U.S. officials to condemn and delegitimize enemies of the state. Over the next decade, any tactical import was shorn from terrorism’s meaning and it became synonymous, instead, with the most evil and immoral acts perpetrated, primarily, by Arabs and Muslims.
The Israeli government had long used these same arguments to try and smear the Palestinian movement for self-determination and the Arab governments that supported it. In the words of Edward Said, Israeli efforts to try and equate terrorism with Palestinians emanated from Israel’s understanding that “no conventional military option existed against the Palestinians. . . . and that therefore they would have to be done away with through other means.” Those “other means” required discrediting and delegitimizing Palestinian resistance, in all its forms. As Said described it, by the end of the 1970s, Israel had learned how to “co-opt U.S. policy, cynically [exploit] Jewish fears of another Holocaust and [stir] up latent Judeo-Christian sentiments against Islam” to turn the U.S. political machine into another weapon in the battle against Palestinian self-determination. “Terrorism” provided the conceptual hook for that project. The Netanyahus’ 1979 terrorism conference, as well as a follow-up conference in 1984 and a book written by Benjamin Netanyahu titled Terrorism: How the West Can Win (reportedly President Ronald Reagan’s favorite book), played a major role in helping these views take hold within the U.S. political scene.
By the end of the Cold War, U.S. terrorism discourse had become thoroughly “Israelized.” Accelerating in the mid- to late 1980s, this Israelized discourse was reflected in U.S. laws that framed Palestinians as the primary purveyors of terrorist activity. In 1987 Congress passed a law designating the Palestinian Liberation Organization (PLO)—which was then and is now the internationally recognized representative of the Palestinian people—as a terrorist organization. The law, described at the time as “unique. . . in the long history of Congressional enactments,” also shut down the PLO’s operations in the United States, including prohibiting it from having U.S. offices. Beginning in 1994—shortly after the so-called “Middle East peace process” began—successive U.S. presidents exercised the law’s waiver provision, which gave them the authority to suspend the law and permit the PLO to operate in the United States, under certain conditions. In 2017 President Donald Trump declined to continue the waiver, and in 2018 his administration officially shut down the PLO’s operations in the United States, including its Washington office, which remains closed.
The targeting of Palestinian groups through law expanded throughout the 1990s. In 1995 President Bill Clinton issued an executive order that designated various groups as terrorist organizations for threatening the “Middle East peace process.” Of the twelve groups originally named under the order, seven were Palestinian. In 1996, Congress passed a law that created a new terrorist designation process that, once again, disproportionately targeted Palestinian groups. Under this law, the U.S. Secretary of State can designate foreign groups as terrorist organizations or “FTOs” as long as they meet certain relatively broad requirements. Of the twenty-eight groups first designated under the law in 1997, thirty percent were Palestinian—constituting the single largest group of designated entities at the time. Given the relatively broad requirements of the FTO designation law—as well as the wide-range of groups engaged in political violence in the 1990s—it is notable, to say the least, that such a large percentage of designated entities were Palestinian.
The 1996 FTO designation law was part of a broader bill, known as the Anti-Terrorism and Effective Death Penalty Act (AEDPA). AEDPA was passed in the wake of the 1995 Oklahoma City bombing, which at the time was the deadliest terrorist attack on U.S. soil—one committed by two avowed white supremacists. Rather than address the problem of white nationalist terrorism that had rocked the country, AEDPA was used for a different purpose: to fight the so-called specter of Palestinian terrorism in the United States.
AEDPA’s legislative history is riddled with statements from congressional representatives that both equate “terrorism” with Palestinian groups and suggest that “terrorism” by Palestinians represented a grave threat to the United States—all without any concrete, fact-based evidence. “We have Hamas people in this country who want to murder our Jewish citizens, just to mention a few. We have Abu Nidal [a Palestinian armed organization] people in this country who want to murder our Jewish citizens and others,” Senator Orrin Hatch claimed in a Congressional session for the bill. In his comments supporting AEDPA, Congressman Henry Hyde drew an even stronger connection between Israeli and American interests in fighting Palestinian “terrorism.” “As Israel’s best friend in the world,” he said, “it would be naive in the extreme to assume that we will not be targeted by those forces that are cowardly and promiscuously bombing in Jerusalem and Tel Aviv.” Never mind that such Palestinian attacks in the United States had never materialized (and never would): the reflexive association of Palestine with terrorism was strong enough to endure even the facts of reality.
Amongst AEDPA’s host of Palestine-inspired provisions was a criminal law that broadly prohibited “material support” to groups designated as foreign terrorist organizations. Material support is an expansive concept that includes a broad array of support from providing “services,” “expert advice,” “lodging,” “training” “personnel,” and “transportation” to terrorist groups or activities. AEDPA’s material support statute was specifically aimed at targeting “terrorist fundraising” supposedly happening inside the United States. Once again, Palestinian “terrorist” groups—many of which, like Hamas, provided much-needed social welfare and charitable services to Palestinians living under Israeli occupation—were the focus of these efforts. Proponents of the material support law claimed, with little in the way of concrete evidence, that these Palestinian groups were “fundraising” in the United States. Then-senator Joe Biden stated that “under the bill . . . we create a new crime relating to providing material support for terrorists, if you send money to Hamas and provide material support or an automobile or a train ticket or whatever. . . . it is a Federal crime now. . .” Congressman Rick Lazio echoed Biden’s anti-Palestinian viewpoint. The material support law, he stated, “ends the spectacle of organizations like Hamas raising millions of dollars here in America to finance terrorism and murder abroad, including murder of Americans.”
Arab American groups were particularly aware of the law’s focus on Palestine. In testimony opposing the proposed material support law, the president of one Arab American organization expressed concern that the provision would “[cut] off fundraising to the legitimate non-terrorist and non-violent activities of [designated FTO] groups [and] will deprive Palestinian society of vital services.” His worries proved to be well-founded. A few years after the material support law was passed, the then-largest Muslim charitable organization in the United States that provided substantial charitable support to Palestinians, The Holy Land Foundation, was shut down and some of its officials were prosecuted for allegedly providing indirect material support to so-called Palestinian terrorist groups: actions that were politically-motivated, a response to Israeli pressure, and otherwise based on secret or flimsy evidence.
Other parts of AEDPA used immigration as their vehicle for anti-Palestinian lawmaking. In particular, a desire to target Palestinians and their supporters arguably inspired AEDPA’s creation of the “Alien Terrorist Removal Court,” which allows the U.S. government to deport so-called non-citizen “terrorists” using evidence that is secret and withheld from the accused. While the court has been defunct since its inception, according to scholars, it was inspired by the U.S. government’s efforts in the late 1980s to use secret evidence to deport eight activists based in Los Angeles, known as the “L.A. Eight,” for supporting the Popular Front for the Liberation of Palestine—a Marxist-Leninist, Palestinian resistance group—through peaceful advocacy.
Other immigration laws, passed before AEDPA, have been even more explicit in targeting Palestinians. For instance, under U.S. law, noncitizens that have engaged in “terrorist activity” cannot be admitted to the United States. According to a provision of the Immigration and Nationality Act (“INA”) added in 1990, anyone who is an “officer, official, representative, or spokesman” of the PLO is considered, on that basis alone, to be engaged in terrorist activity and therefore inadmissible to the United States. To this day, PLO officials can only enter the United States if they have a waiver from the executive branch, even though the PLO is not otherwise officially designated or named as a terrorist organization in the United States. The PLO is the only group explicitly named in the INA whose members are presumptively accused of terrorist activity, based solely on their affiliation with the group.
There is also a private, civil component to the ecosystem of anti-Palestinian U.S. law that further depicts Palestinians as purveyors of terrorism. These federal laws—which were first established in the 1990s—allow private parties to variously sue individuals, organizations, or foreign governments for injuries sustained as a result of terrorist acts.
The first law, codified at 18 U.S.C. § 2333 (Section 2333), was passed in the early 1990s following the death of Leon Klinghoffer, a Jewish American man who was murdered by Palestinian resistance fighters while on board a ship in international waters. Because they faced jurisdictional hurdles in trying to sue the ship’s owners and other parties in U.S. courts, Klinghoffer’s family lobbied Congress for a statute that would allow Americans to sue for injuries resulting from terrorist activity outside the United States.
While Section 2333 remained dormant until shortly before 9/11, it has since been used, in large part, to target so-called Palestinian terrorist groups and their supporters. Leveraging the expansive material support concept, plaintiffs have targeted not only those who have allegedly caused their injuries, but also charities, banks, and even social media companies that have purportedly provided any aid—as mundane as a Twitter account or a checkbook—no matter how tangential, to armed Palestinian groups. Plaintiffs have even used Section 2333 to sue U.S. NGOs, alleging that their peaceful advocacy for Palestinian self-determination was an inciting cause of plaintiffs’ terrorism-related injuries.
In 1996, Congress supplemented Section 2333 with another civil law, codified at 28 U.S.C. § 1605A (Section 1605A), which allows private parties to sue foreign states designated as state sponsors of terrorism for certain terrorism-related activities that cause personal injury or death—including providing material support to terrorist groups. In fact, the original version of this law was passed as part of AEDPA, making it part and parcel of the bill’s anti-Palestinian ecosystem. Subsequent amendments to the law—particularly the 1996 Flatow Amendment that, amongst other things, sanctioned punitive damages awards under the statute—were the result of intense lobbying by plaintiffs who hoped to use Section 1605A to target state sponsors of terrorism supporting Palestinian resistance groups. To this day, the Section 1605A docket continues to be made up in significant part of claims involving underlying acts of alleged violence by armed Palestinian organizations.
In certain civil terrorism cases, Congress has stepped in to further facilitate suits against Palestinian groups. After a line of Section 2333 cases against the PLO and Palestinian Authority—which nominally governs portions of the West Bank—failed on jurisdictional grounds, Congress passed multiple pieces of legislation attempting to artificially manufacture jurisdiction over the PLO and PA in order to revive those cases.
Israeli organizations have actively harnessed these statutes, too. Working in coordination with the Israeli government, groups like Shurat HaDin—an NGO purpose-built to leverage U.S. law against Palestinian resistance groups—have openly advertised their desire to use federal civil laws like Section 2333 to create a “legal onslaught” and “humiliate and damage” those supporting the Palestinian cause.
Starting in the early 2010s, a new strategy was incorporated into the anti-Palestinian arsenal: accusations of anti-Semitism. As the Boycott, Divestment & Sanctions (BDS) movement—a civil society-led movement that promotes punitive economic measures against Israel to push it to respect the rights of Palestinians under international law—gained traction and popularity in the United States and recognizing, perhaps, that a terrorism framing would be less helpful in shutting down U.S. groups heeding the BDS call, like churches, pro-Israel groups mobilized against the movement by claiming its criticisms and challenges to Israeli policies were anti-Semitic. This strategy, which relies on a distorted view of anti-Semitism, has been the basis for hundreds of anti-BDS bills, which have been introduced in U.S. states since at least 2014. Currently, over thirty states have laws that penalize individuals and organizations for supporting BDS in various ways.
As part and parcel of this strategy, pro-Israel advocates, like AMCHA Initiative and the Anti-Defamation League, have also focused on pushing certain entities to formally adopt the relatively new redefinition of anti-Semitism as criticism of Israel. Their purpose, of course, is to further restrain and censor pro-Palestine advocacy. So far, these advocates have succeeded in getting their preferred redefinition of anti-Semitism adopted by some state and local governments, like the state of Florida, as well as some university bodies, like the University of Texas-Austin’s student government. During his administration, President Donald Trump issued an executive order embracing the distorted anti-Semitism definition and directing the government to adopt that definition in enforcing Title VI of the Civil Rights Act of 1964—which prohibits discrimination on the basis of race, color, or national origin in institutions, like universities, that accept federal funding. In May 2023 the Biden administration appeared to embrace the expanded definition as well through its national strategy to combat anti-Semitism.
Since October 7, pro-Israel advocates have continued to use law as a weapon, working from terrain laid over the last few decades. Only days after October 7, a bill was introduced in the U.S. House of Representatives that would make anyone with a passport issued by the Palestinian Authority ineligible to receive a visa, be admitted to, or to enter the United States on a temporary basis for humanitarian reasons. Titled “Guaranteeing Aggressors Zero Admission (GAZA),” the bill effectively brands anyone with a PA passport as violent and collectively punishes them for the events of October 7.
Over the last few weeks, Florida’s U.S. Senator Marco Rubio has led various efforts to demand the Biden administration use existing immigration and anti-terrorism laws to target peaceful student advocacy. In a letter issued in mid-October, Rubio called on Biden to enforce existing provisions of U.S. immigration law to revoke the visas of foreign national students who “endorse or espouse terrorist activity” by supporting “Hamas”—meaning, in effect, any foreign student who so much as participates in a protest or action is at risk of being branded a terrorist sympathizer and deported. Invoking AEDPA’s material support prohibition, which he was clear to note specifically prohibits support for Hamas, Rubio called on the Department of Homeland Security to “use the tools Congress has already provided to you” to investigate universities that support pro-Palestine student groups—effectively equating peaceful advocacy with terrorism and calling for First Amendment–protected activity to be prosecuted by the government. A few days after Rubio’s letter, the state of Florida officially banned all chapters of the Students for Justice in Palestine group from operating on public university campuses, accusing the student organization of violating the prohibition on providing material support to Hamas by engaging in protests in solidarity with Palestinians being bombarded by Israel.
Efforts to equate anti-Semitism with criticisms of Israel have been especially prominent since October 7. Over the last two months, and in response to growing pro-Palestine advocacy at universities and schools across the nation, pro-Israel groups, like the Brandeis Center, as well as white-shoe law firms, have filed innumerable complaints with the Department of Education alleging anti-Semitism at universities and school districts in violation of Title VI. And while the exact details of these allegations are unclear, given the broader ongoing attacks on pro-Palestine campus organizing by pro-Israel groups as well as public information about some of these filings, it is likely that many of these alleged anti-Semitic incidents rely on the notion that anti-Semitism and anti-Zionism are one and the same. Based on these complaints, the Department of Education has opened several Title VI investigations against universities and K-12 schools for anti-Semitic conduct since October 7. Congress has also doubled down on this moment both to treat anti-Zionism as anti-Semitism and to equate pro-Palestine advocacy with anti-Semitism, passing resolutions in the Senate and House on these matters.
And in perhaps the most concerning development of all, the Biden administration announced the launch of what amounts to a nationwide campus-focused surveillance project. New York Governor Kathy Hochul has also announced that the state is “ramping up” its surveillance of social media accounts to combat a perceived rise in anti-Semitic incidents in the state. These moves, which further conflate anti-Semitism with criticisms of Israel, will undoubtedly target those who are vocally pro-Palestine for surveillance by federal, state, and local law enforcement. These efforts also securitize anti-Semitism in unprecedented ways that are likely to be used to target Black and brown communities already disproportionately surveilled and discriminated against by law enforcement officials.
Law is not a neutral object. It is a political tool that can be used to oppress or liberate. In the case of Palestinians and their allies, U.S. law has become a tool of oppression—in many ways, just as destructive to the cause of Palestinian self-determination, liberation, and humanity as unconditional U.S. political and military support for the Israeli state.
Source: bostonreview.net
Author: Maryam Jamshidi
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