President Barack Obama and Vice President Joe Biden speak with Palestinian Authority President Mahmoud Abbas in the Oval Office, May 28, 2009. (Official White House Photo by Pete Souza).
Biden’s Israel-Palestine policy: A chance to restore and reset

When Joe Biden takes office on January 20, 2021 as the 46th president of the United States, on the ever-growing fix-list of diplomatic messes left behind by the Trump administration, the Israeli-Palestinian conflict will loom large. Biden surrogates are already floating the idea that the new president will seek to roll back some of Trump’s most egregious anti-Palestinian policies, but Biden and his advisors should be thinking both bigger and more creatively. Bold policies geared not merely to restore the pre-Trump status quo but to reset the United States-Palestinian relationship, can re-accredit and reinvigorate American engagement — and there are ways to do this that are both surprisingly simple and politically bulletproof.

A place to start is the foundational issue of U.S. diplomatic relations with the Palestinians – which the Trump Administration did all it could to obliterate. Biden can both restore and fundamentally reset that relationship with a single bold move: declaring Congress’s longtime efforts to dictate the terms of United States diplomatic relations with the Palestinians to be unconstitutional. Such a declaration is not only prima facie correct but is supported by the policies of two previous U.S. presidents, both Republicans, and in the latter case with the full acquiescence of Congress.

As a reminder: the Palestine Liberation Organization’s mission in Washington functioned as the de facto Palestinian embassy to the United States from the early days of the Oslo process until President Trump closed it down in September 2018. During that entire period, it existed in a state of perpetual legal limbo, in the shadow of a law passed at the height of the First Intifada, called the “Anti-Terrorism Act of 1987.” This law, which remains in force today, defines the PLO and its affiliates as “a terrorist organization” — though the PLO has at no time been designated a Foreign Terrorist Organization by any U.S. administration — and bans the PLO from operating in the U.S., including establishing or maintaining any kind of office.

With the advent of the peace process, Congress initially allowed presidents to suspend the Anti-Terrorism Act of 1987, and then quietly shifted to giving Presidents the authority to temporarily waive the anti-PLO ban if they certified it was important to U.S. interests. As the peace process stalled and Congress again grew hostile to the Palestinians, that waiver authority was made increasingly conditional, first on the Palestinians abstaining from joining U.N. agencies, and then on the Palestinians refraining from pursuing or supporting action against Israel at the International Criminal Court. Every president issued these waivers, every six months, until November 2017, when the Trump Administration concluded (correctly) that it could not make the required certification with respect to Palestinian actions at the ICC.

As things stand today, Biden has no option to simply revert to the pre-Trump status quo in which the PLO mission operated under a waiver of the 1987 law. Congress, which continues to display bipartisan zeal in defending Israel at the ICC, is unlikely to strip the ICC-related condition from the waiver, which is included in the consolidated appropriations bill currently pending in Congress. Moreover, even if Congress did so, a waiver likely wouldn’t suffice to restore ties. Since being ejected from Washington, Palestinian diplomats have privately told interlocutors that the PLO will not re-open its mission under the shadow of law that labels Palestinian diplomats terrorists and that allows Congress to turn the maintenance of diplomatic ties into a tool of coercion.

Complicating matters further is a law passed in 2018, the Anti-Terrorism Clarification Act, or ATCA, which like the Anti-Terrorism Act of 1987 transforms U.S. diplomatic relations with the Palestinians into a coercive weapon. ATCA seeks to enable American citizens who want to sue the PLO in U.S. courts to circumvent judges’ rulings that U.S. courts have no jurisdiction over the PLO. Under ATCA, if the Palestinians open any office in the U.S., including a diplomatic mission, it will automatically constitute the PLO consenting to such jurisdiction, opening the door for lawfare organizations — which make clear that their intent is to bankrupt the PLO out of existence — to go on the attack.

If Biden tries to resurrect U.S.-Palestinian relations from within this tangle of laws — laws that are intended, explicitly, to politicize and obstruct the very ability of the United States to conduct diplomacy with the Palestinians — not only does he have little chance of success, but he will be validating Congress’s continued unconstitutional interference with the executive’s diplomatic prerogative.

Alternatively, Biden has an historic opportunity before him to assert executive authority and declare unconstitutional those elements in the Anti-Terrorism Act of 1987 and the Anti-Terrorism Clarification Act that seek to dictate United States’ relations with the Palestinians. In doing so, he can both restore the PLO mission to Washington and reset the U.S.-Palestinian relationship, opening the door for a different era of diplomacy in which Congress, correctly, is removed from the mix.

President Ronald Reagan laid the groundwork for such an approach on December 27, 1987, when he unambiguously declared the Anti-Terrorism Act of 1987 to be unconstitutional. In a signing statement he attached to the legislation, the legal argument of which applies equally to ATCA today, Reagan wrote:  

Section 1003 of the Act prohibits the establishment anywhere within the jurisdiction of the United States of an office “to further the interests of” the Palestine Liberation Organization. The effect of this provision is to prohibit diplomatic contact with the PLO. I have no intention of establishing diplomatic relations with the PLO. However, the right to decide the kind of foreign relations, if any, the United States will maintain is encompassed by the President’s authority under the Constitution, including the express grant of authority in Article II, Section 3, to receive ambassadors. I am signing the Act, therefore, only because I have no intention of establishing diplomatic relations with the PLO, as a consequence of which no actual constitutional conflict is created by this provision.

More recently, President Donald Trump, with no formal announcement, adopted exactly such an approach. At the moment Trump allowed the waiver of the Anti-Terrorism Act of 1987 to lapse in November 2017, the continued existence of the PLO mission in Washington violated the law. Yet, the Trump Administration permitted that mission to stay open for another 10 months, in defiance of the law, based on its articulation of its own conditions.

In effect, the Trump Administration’s policy after November 2017 was to treat the status of the PLO mission as a matter under the sole discretion of the executive, and its ejection of the mission from Washington in September 2018 was on these terms. And notably, for those who might attack Biden for adopting the same approach: over the course of those 10 months, Trump’s assertion of executive authority in this matter went entirely unchallenged and uncriticized by Congress, the government of Israel, and the entire spectrum of Israel-focused organizations in the United States.

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