Last week, the Biden administration announced $15 million in COVID-related humanitarian aid to Palestinians in the West Bank and Gaza. In response, Rep. Lee Zeldin (R-N.Y.) accused the administration of “bowing to terrorists” and implied that aid to the Palestinians “no matter what pot of money the U.S. assigns those funds to” violates U.S. law and defies the will of Congress.
Zeldin’s accusation is part of what appears to be a deliberate effort to misrepresent U.S. law and mischaracterize congressional intent, for the purposes of manufacturing controversy and stoking outrage over the Biden administration’s plans to resume aid to the Palestinians. In addition to Zeldin, this campaign is being waged by members of Congress like Sen. Ted Cruz, (R-Texas) and Rep. Doug Lamborn, (R-Colo.); by former Trump administration officials like former Secretary of State Mike Pompeo; and by various right-wing groups like Christians United For Israel, Jay Sekulow’s American Center for Law and Justice, JINSA, and the Jewish Policy Center.
These people and groups have the right, of course, to object to U.S. assistance to the Palestinians, even if many would counter that opposing humanitarian aid during a pandemic is cruel and even immoral. But it is demonstrably false to argue that resuming aid cut by President Trump violates the law and the will of Congress. And at the core of this falsehood is a re-writing of history to suggest that Congress has barred all aid to the Palestinians, and that this is why President Trump cut it off.
The facts irrefutable. In 2018, Congress passed the Taylor Force Act. Once TFA was signed into law on March 23, 2018, a single category of U.S. foreign assistance for the West Bank and Gaza became limited by law. Specifically, if the State Department cannot certify that the Palestine Authority and Palestine Liberation Organization are taking required steps to terminate payments for Palestinians arrested or killed by Israel for acts of terror (nicknamed "pay-to-slay" by TFA advocates), the U.S. cannot provide Economic Support Funds, or ESF, for anything that “directly benefits” the Palestinian Authority, with the exception of three specific programs: the East Jerusalem Hospital Network, wastewater projects, and vaccines for children.
But limiting funding is not the same as cutting it off. Under TFA, even if an administration cannot make the required certification, it may continue ESF for the West Bank and Gaza for programs and purposes that do not “directly benefit” the PA. And while TFA puts the onus on the Executive to come up with the list of criteria used to determine “whether assistance for the West Bank and Gaza is assistance that directly benefits” the PA, it doesn’t give Congress any say or veto over these criteria or the funding decisions that might flow from them.
In addition to imposing no limits on ESF that doesn’t “directly benefit” the PA, TFA imposes no conditions or limits on any other category of U.S. assistance to the Palestinians. Hence, regardless of whether the certification required under TFA can be made, there is no legal obstacle to an administration providing, for example, multilateral support (e.g., for UNRWA and other U.N. accounts); security assistance (e.g., for Israeli-Palestinian security cooperation); State Department public diplomacy programs (e.g., for Fulbright scholarships); or international disaster assistance (e.g., aid for things like the COVID pandemic, as was announced last week by the Biden Administration).
So much for the law. What about the intent of Congress?
The final text of TFA was the result of long efforts by members of Congress to find a way to send a very strong message to the PA and PLO, without cutting off aid entirely. That is why the law used the term “directly benefits” rather than “directly or indirectly benefits,” or even, simply, “benefits.” To suggest that this language was an accident or an oversight is historical revisionism that is easily debunked by the subsequent actions of Congress with respect to another piece of legislation targeting the Palestinians, known as the Anti-Terrorism Clarification Act, or ATCA.
Months after TFA came into effect, Congress passed ATCA (it became law Oct. 20, 2018, with its relevant sanctions coming into force 120 days later). At the time of ATCA's passage, and notwithstanding TFA being in force, the Trump administration was still providing assistance for Israeli-Palestinian security cooperation, and was still permitting some regular U.S. assistance to flow to the Palestinians. But under ATCA, Palestinian acceptance of any form of U.S. assistance risked triggering jurisdiction of U.S. courts in cases where the PLO or PA are being sued. As a result, the PA decided almost immediately to stop accepting any of it.
What followed was the clearest signal imaginable of congressional support for maintaining aid to the Palestinians. When Congress understood, belatedly, the aid-obstructing aspect of ATCA, it amended it (as part of the FY20 Consolidated Appropriations bill), entirely removing the linkage to aid. If that wasn’t clear enough, in that same bill Congress, for the first time in history, included a "hard earmark" (a legally binding expression of congressional funding intent) for ESF funding for the Palestinians — $75 million slated for humanitarian and economic support. And if that still wasn’t enough, at the end of the Trump presidency, Congress passed into law the Nita M. Lowey Middle East Partnership for Peace Act, provided $250 million over 5 years to fund it, and hard-earmarked another $75 million in ESF for traditional economic and humanitarian support programs for the Palestinians.
The Trump administration did cut off aid to the Palestinians — not because of TFA or out of deference to Congress, but for its own reasons. It cut off most aid to the Palestinians in August 2018 — months after TFA came into force — to punish the PA for boycotting the administration after Trump announced U.S. recognition of Jerusalem as Israel’s capital and the imminent relocation of the U.S. Embassy to Jerusalem. The Trump administration demonstrably did not see TFA as applying to all aid to the Palestinians, since even after this punitive cut-off significant funding continued to flow to the Palestinians. That funding ended in February 2019 with ATCA, and the Palestinians refusal to accept U.S. funding. After Congress amended ATCA to no longer obstruct the flow of that aid to the Palestinians, the Trump administration simply chose not to re-start it.
One final set of facts really tell the whole story: in April 2020, President Trump surprised the world by announcing a $5 million grant for the Palestinians, out of the same pot of funds and for the same purpose that the Biden administration is providing $15 million today. At the time, nobody suggested Trump was supporting terrorists or violating the Taylor Force Act (he wasn’t), or that Ambassador David Friedman, in touting the aid on Twitter, had flouted congressional will (he hadn’t). To suggest that Biden is doing either of these things today involves not just misrepresenting the law and rewriting congressional intent, but unabashed historical revisionism.
