Who’s undermining democracy? The pot, the kettle and transparency

The first Israeli NGO law was an amendment to the 2008 Amutot Law, which required persons who received at least NIS 20,000 from foreign entities to disclose that fact.

By JAN SOKOLOVSKY, ARIELA COTLER
January 16, 2016 22:16
Dan Shapiro

Dan Shapiro. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST,MARC ISRAEL SELLEM)

The easiest way to respond to the almost hysterical attacks against the NGO transparency bill regarding funding by foreign governments, now before the Knesset – including that of US Ambassador Dan Shapiro – is simply to read it, because the attacks are baseless.

The bill does not stifle freedom of speech; it is not aimed at left-wing organizations; it does not seek to shut down any organization. In fact, it is politically neutral, and requires only enhanced transparency from anyone, Right or Left, who receives significant funding from a foreign entity and engages in political activity. It does not undermine democracy in any way.

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It would also seem that the opponents were caught by surprise with this bill, although actually it had a long gestation period.

Almost 10 years ago, observers experienced in legal and judicial matters detected a disturbing increase in petitions to the High Court of Justice on politically sensitive issues, filed by a small group of NGOs. Some were funded by foreign nations, and seemed to be influenced by the foreign policy of their donor nations.

In 2007, we raised this problem with former minister Mickey Eitan, then chairman of the Constitution and Law Committee, and advocated legislation on the subject. Research indicated that in 1938, the United States adopted a law to confront Nazi propaganda, the Foreign Agents Registration Act (FARA).

It provided, basically, that any person who receives significant funding from a foreign country and who engages in political activity must register as a foreign agent with the US Department of Justice. Political activity is defined as intended to influence “domestic or foreign policies of the United States”.

FARA does not forbid such agents from operating in the US, nor does it target any specific political activity. It is politically neutral, and mandates only registration and reporting – in other words, transparency. MK Eitan asked us to draft a law for Israel based closely on the US FARA law, which we did.

The first Israeli NGO law was an amendment to the 2008 Amutot Law, which required persons who received at least NIS 20,000 from foreign entities to disclose that fact on their financial statements.

It was understood that additional legislation was needed, so we resumed our efforts to prepare a full law parallel to the US FARA law. Unfortunately, as the bill, sponsored by MKs Elkin, Michaeli, Rotem and Schneller, made its way through the Knesset hearings, it was shortened and diluted, until only a much weakened version, the Law Requiring Disclosure by those Receiving Funding from Foreign Entities, was adopted in September 2011.

Then, as now, opponents of that law falsely claimed that it aimed to close down all left-wing organizations, and would stifle freedom of speech. Committee hearings resounded with irresponsible shouts of “communist”, “fascist”,” McCarthyist.” By contrast, the last sentence of the explanatory paragraph to the bill correctly and rationally states, “This law balances well between the right of organizations in a democratic country to operate freely, and the right of the Israeli public to know who is financing their operations.”

In 2014, we helped draft a new iteration of the bill, sponsored by MKs Ilatov, Levin, and Shaked, but its progress in the Knesset was cut short when the Government fell.

The current bill is a series of amendments to the 2011 law, specifying the circumstances in which foreign funded groups must list their donor nations. When they meet with MKs and their staff, shouldn’t our legislators and officials know who is supporting their visitors? And now to Ambassador Shapiro.

After meeting with Shaked, he issued two statements, one about the Israeli bill and the second adamantly and incorrectly distinguishing the US FARA law from the Israeli bill.

In describing the meeting, Shapiro sought more information about the draft legislation from the minister, and noted the US government’s “concerns on the matter.”

His second statement purported to distinguish between FARA and the Israeli bill, but his description of FARA is facile, almost disingenuous and completely misleading. He claimed that the Israeli bill is draconian while FARA has practically no effect on foreign funded NGOs: “FARA requires individuals or organizations to register as foreign agents only if they engage in certain specified activities at the order, request, or under the direction or control, of a foreign principal – not simply by receiving contributions from such an entity. As a result, it does not create the chilling effect on NGO activities that we are concerned about in reviewing the draft Israeli NGO law.”

The “certain specified activities” which Shapiro so obliquely refers to, and seeks to minimize, are at the heart of the FARA law. They are precisely “political activities”. Any person who receives significant foreign funding and engages in political activity must register as a foreign agent, and report in detail about their activities to the Department of Justice. While FARA says that the activity must be under the “direction or control” of the foreign entity, this does not mean that there must be a specific instruction from the donor country to the recipient. In fact, the law clearly understands that the agreement can be oral or implicit, but all of those “circumstances” must be reported.

The recent EU grant of €30,000 to B’tselem to combat the transparency bill is irrefutable evidence of the direction of the foreign donor to the NGO to directly interfere with our legislative process. What could be a more blatant undermining of Israeli democracy by a foreign government? But usually, the “control” is more subtle, implicit. The donor country has a foreign policy critical of Israel policy on some issue, and the funded NGOs undertake programs in Israel to attack that policy – by organizing protests, conferences, writing articles and “reports”, lobbying in the Knesset and with other public officials.

Sovereign nations are the major leagues. They have an all-star lineup of ways to implement their foreign policy – diplomacy, sanctions, boycotts, the UN. Witness the EU”s labeling of products from Judea and Samaria, or the Swedish foreign minister complaining about Israeli “extrajudicial executions” of terrorists. Can anyone explain why foreign nations should be entitled to field another team, Israeli NGOs, to implement the same policies and not be required to disclose this fact? It is no coincidence that the activities of these NGOs conform to the foreign policy of their donors. Even without a written document, both parties understand their mutual obligations.

The donor nations provide the funding and the NGOs supply the “political activity”.It belies belief that the donor nations would continue to fund these NGOs if they ceased activities which served their foreign policy.

Its opponents loudly declaim that the bill is the death knell to Israeli democracy. In truth, this charge is hypocrisy at its height, since the critics acknowledge that the majority in Israel, democratically elected, does not agree with their positions.

Yet, they unashamedly claim the right to undermine the will of the Israeli public, by intruding into our judicial and legislative systems, because they represent some “global democratic society”.

Go figure.


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