WASHINGTON – Four decades have passed since Congress last agreed on a law pushing back against boycotts of Israel worldwide. That streak was broken by the Senate Wednesday, at a moment perhaps prescient, as European capitals consider new measures to highlight and punish Israel’s continued “occupation” of the West Bank.
The vehicle chosen, as one congressman told The Jerusalem Post, comes around too infrequently for lawmakers to have passed up the opportunity.
He was referring to the fast-track authority required by President Barack Obama to swiftly negotiate a trade deal with the European Union utilizing Trade Promotion Authority, which, in turn, grants Congress an exceptional role and visibility into the process.
TPA, which passed through the Senate and landed on the president’s desk, includes roughly 150 trade negotiating objectives – requirements of the president, as mandated by Congress, to raise specific US priorities in its negotiations.
One of those objectives is to push back against efforts within the EU to sponsor the growing Boycott, Divestment and Sanctions (BDS) movement against Israel.
“Something this significant only comes around when TPA comes around,” Rep. Peter Roskam (R-Illinois) said in an interview at his office in the Rayburn House Office Building.
“They now have to bring it to their attention.”
The process began with a December 2013 op-ed in Politico Magazine written by Michael Oren, then Israel’s ambassador to the United States, which challenged Congress to respond to the American Studies Association’s decision to boycott Israel – by no means the first protest of its kind, but an early sign of what was to come from similar organizations based in Europe.
A letter of support circulated around Capitol Hill, signatures were collected, and a bill was ultimately passed reinforcing Congress’s commitment to academic freedom. But the concern lay in the tactic. What if measures taken by ASA were used by other organizations against Israel as a form of economic warfare?
Several congressmen, including Roskam, made note that the first free trade agreement signed by the US was with Israel. They sought a legislative solution with teeth: a bill that would establish any future trade pact with foreign nations boycotting Israel as being in direct contravention of the existing US-Israel Free Trade Agreement.
Drafting HR 825, then known as the US-Israel Trade and Commercial Enhancement Act, took several months. A bipartisan group of congressmen worked with the American Israel Public Affairs Committee on its language.
The purpose of that bill, according to one aide familiar with its drafting, was “to discourage potential trade partners from participating in or promoting politically motivated acts of BDS against Israel, and to seek the elimination of boycotts and barriers to trade where they exist.”
Only when Congress learned of the Obama administration’s trade negotiations with Europe did Roskam, Rep. Juan Vargas (D-California), and senators Ben Cardin (D-Maryland) and Rob Portman (R-Ohio) decide to piggyback on the president’s effort – and on the accompanying legislation required – to ensure the passage of their effort.
The goal was to enshrine “a principal negotiating objective that reinforces our opposition to official actions that boycott, penalize, or otherwise limit commercial relations with the State of Israel,” Rep. Paul Ryan (R-Wisconsin) said when introducing the provision as an amendment to TPA.
Supporters of the amendment faced skeptics across the aisle from Republicans, Democrats, some Jewish groups and the White House itself.
Congressional Republicans and administration officials were primarily concerned with strategic implications the law might have on the overall effort. Would including an anti-BDS provision compromise the negotiations themselves? Would Europe ask for something in return?
“We had to overcome arguments coming from a trade purist point of view, and trade purists see any sort of friction against trade as something adverse,” Roskam said.
Skeptics also feared the implications of injecting foreign policy into a free-trade agreement. But proponents noted that, in Washington’s trade negotiations with Bahrain and Oman in the mid-2000s, the topic was on the table and both nations dropped their boycotts of Israel as a result.
Perhaps most controversial, however, was how the bill would define the territories under threat of boycott.
In its final language, the TPA legislation defines the BDS movement as “actions by states, nonmember states of the United Nations, international organizations or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.”
Several groups opposed reference to Israeli-controlled territories in the bill – a departure from the official, decades-old line out of the US State Department.
“We opposed the four words in the provision that blurred the distinction between Israel and the ‘territories controlled by Israel,’ in the same way that the BDS movement does,” Dylan Williams, vice president of government affairs at J Street, told the Post
“Sneaking through the protection of the settlement enterprise under the guise of fighting BDS undermines that very fight.”
Authors of the bill tell the Post
the language was “deliberate, not accidental” and thought through for almost a year.
“There’s no word in that bill that was accidental,” said one author, who counts over 40 draft versions of the bill.
In discussions with the Office of the US Trade Representative, Roskam says, the term “Israeli-controlled territories” was not a topic of discussion or a primary concern expressed by the Obama administration.
But reacting to the provision in conversation with the Post,
several White House officials made note of Washington’s long-standing position on Israeli-controlled territories occupied since 1967.
Jeff Zients, director of the US National Economic Council and Obama’s chief economic adviser, told the Post
in May that the administration’s positions on BDS – and on “the status of territories administered by Israel after 1967” – have been on the books for years.
“We already have robust anti-boycott measures in place regarding Israel,” Zients said. “For instance, the Department of Commerce’s Office of Anti-boycott Compliance already administers existing anti-boycott laws regarding Israel.”
And a spokesman for the White House National Security Council, Alistair Baskey, also cited consistency in the administration’s policy and, like Zients, declined to speak specifically to the provision at hand.
“The administration’s policy opposing boycotts directed against the State of Israel, as well as its policy opposing Israeli settlement activity, remain unchanged,” Baskey said in an email, “as does the United States’ long-standing policy with regard to the territories occupied since 1967.”