Mission impossible: How an old US law could scotch peace talks before they start

Three decades after US president Ronald Reagan criticized an anti-Palestinian law as an overreach by Congress into the executive branch’s ability to conduct diplomacy, the same legislation now imperils yet-unborn peace talks under the Trump administration.

On Friday the State Department informed the Palestinian Authority it may close the Palestine Liberation Organization’s mission in Washington, DC, because Ramallah is pursuing the prosecution of Israelis at the International Criminal Court in The Hague.

In response, the Palestinians threatened to suspend relations with the US should their office in the capital be closed. Their DC office has acted as the unofficial Palestinian embassy in the US, and has been an important symbol of evolving US-Palestinian relations.

The State Department says it’s just following the law — and it is.

In December 2015, Congress passed a provision (Page 540) that called for the PLO mission in Washington to be shut if the Palestinians initiate or support an ICC investigation against Israelis.

And in his 2017 address to the United Nations General Assemby, Palestinian Authority President Mahmoud Abbas clearly violated this clause:

“We have also called on the International Criminal Court, as is our right, to open an investigation and to prosecute Israeli officials” over Israeli settlement activity, he said.

So now the Trump administration is a bind. Either it follows the letter of the law, which could harm the declared interests of US foreign policy to support peace in the Middle East, and may foil the president’s desire to strike “the ultimate deal” between Israelis and Palestinians, or the right-wing White House will have to infuriate its base and go to the Palestinians’ defense.

How did this pickle come to be? And more importantly, is there a way out?

Trump versus Reagan

In 1987, Congress sought to rid US soil of any PLO institutions, which included a United Nations mission located in New York City and a Palestinian information bureau in DC. At the time, the PLO was a US-designated terror organization, backing attacks against Israelis.

Though Congress’s move against the PLO was a just a small clause wedged into a massive bill, Reagan specifically called out the anti-PLO provision, arguing it was unconstitutional because it limited the president’s diplomatic powers.

“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,” Reagan wrote.

Reagan would have had to veto the entire bill in order to squash the anti-PLO provision. Instead, he sufficed with saying that at the time he had “no intention of establishing diplomatic relations with the PLO,” and therefore no “constitutional conflict is created by this provision.”

Despite the bill becoming law, ultimately the US couldn’t close the Palestinian mission to the UN because this would have violated international law. The DC information office, however, was closed.

Fast-forward to 1993. Israel and the PLO have just signed the Oslo Peace Accords. The Palestinians have sworn to end decades of terror attacks against Israel and are slated to receive their own state in the coming years. At this historic occasion, the US Congress allowed the president to suspend all sanctions against the PLO as long as the Palestinians stay faithful to commitments made in the accords. The suspension would have to be renewed every six months. This act by Congress allowed the PLO to open up a diplomatic mission in DC.

In 1997, Congress made it easier for the president to waive the sanctions against the PLO: The president would now just have to say the waiver was in the US’s national security interest with no explanation needed. Again, a waiver would have to be signed every six months.

This was the case until 2011, when the Palestinians joined UNESCO and declared they wanted full-membership status in the UN.

In response, Congress slipped in a new provision into the annual State and Foreign Operations Bill, a massive piece of legislation in which Congress sets aside money for a large portion of the government’s operations.

Again, the anti-PLO provision was just a small droplet in an ocean of laws, this time approved by former president Barack Obama.

Now, if the Palestinians obtained full membership status in the United Nations outside of an agreement with Israel, the president would be unable to waive sanctions against the PLO, unless “the Palestinians have entered into direct and meaningful negotiations with Israel.”

The “it’s in the national security interest” excuse would no longer suffice.

After the Palestinians joined the ICC in 2015, Congress, without any public debate or headlines, slipped in a similar provision into the December 2015 foreign ops bill, which was over 800 pages long.

The provision calls for the waiver to be revoked should the Palestinians “initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation” against Israel.

This quiet evolution of a law that was controversially passed in 1987, before the Palestinians and Israelis had ever officially negotiated over peace, now threatens to abort a yet-unborn round of talks.

Cat out of the bag

Lara Friedman, an expert in US law regarding Israelis and Palestinians and the president of the Foundation for Middle East Peace, said that when she heard Abbas’s speech at the UN this year, she immediately understood it might have repercussions.

Friedman has for years followed closely all news and legislation on Capitol Hill that relates to Israeli-Palestinian issues. While reading the December 2015 foreign ops bill that added the ICC provision, she recalled thinking, “Holy crap, where did this come from?”

She wasn’t sure if anyone else had noticed the ticking time bomb planted silently into the bill.

Should the PLO mission in DC be closed, she said, it would take the US relationship with the Palestinians back 30 years.

Friedman surmised that may be what the provision’s authors intended: moving the clock back to the pre-Oslo era, when the idea of a Palestinian state was more or less unthinkable in Washington.

Friedman can’t say for sure who was responsible for the ICC provision placed into the 2015 foreign ops bill. She called it a “black box process.”

Around that time, three Republican lawmakers introduced bills attacking the Palestinians’ connection to the ICC.

First was Trent Franks (Arizona), who in a May 2015 bill, said the Palestinians joining the ICC “profoundly undermines prospects for mutual recognition, dialogue, and reconciliation” with Israelis, and “hinders the peace process between Israel and the Palestinians and thus represents a threat to the regional interests of the United States and the security of its allies.”

Then in 2016, after the passing of the December 2015 foreign ops bill, Ted Cruz (Texas) and Ileana Ros-Lehtinen (Florida) introduced two identical bills, calling on the US to shut the Palestinians’ mission in DC should they join the ICC.

They argued that the Palestinian mission should be closed not in order to roll the clock back to the pre-Oslo era, but rather because the Palestinians will have violated the Oslo accords, which were the reason sanctions against the PLO were waived in the first place.

“The Palestinian initiation of an International Criminal Court investigation, or active support for such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians, would violate the Palestinians’ commitment to not change the status of the West Bank and Gaza Strip,” the lawmakers wrote in their separate bills.

At the same time, however, both also argued the PLO office in DC should be closed regardless of the ICC matter, because it “is in the national security interests of the United States.” This is so, they argued, because the PLO is “allegedly used by Abbas to fund everything from his international campaign against Israel to compensation to the families of Palestinian terrorists.”

At the end of 2015, the Obama State Department rebuffed demands by some in Congress to close the PLO office over a wave of Palestinian attacks against Israelis allegedly encouraged by the Palestinian leadership. (Abbas at the time bragged that his security services were preventing the some of the stabbing, shooting and car ramming attacks.)

The Obama administration argued at the time that closing the PLO office was not in the US’s best interests.

“We believe that closing the PLO office would be detrimental to our ongoing efforts to calm tensions between Israelis and Palestinians, advance a two-state solution and strengthen the US-Palestinian partnership,” then-State Department spokeswoman Elizabeth Trudeau said.

Perhaps Trump’s team could have tried to interpret Abbas’s UNGA statements in a way that wouldn’t violate the 2015 ICC provision, said Friedman. But now that the cat is out of the bag, she said, there would no simple solution that would put it back in.

There is currently no avenue for the Palestinians to enter into “direct and meaningful negotiations with Israel.” The US, by its own admission, is still working on a way to bring the two sides back to the table for the first time since peace talks fell apart in 2014, and there is no timeline yet for the process to bear fruit, the State Department has said.

Friedman suggested the president could challenge the anti-PLO law’s constitutionality, as Reagan did. She thinks, however, that this is unlikely given the ideology of the President’s advisers, such as US Ambassador to Israel David Friedman, who is openly against the establishment of a Palestinian state.

And if the Trump administration now tried to walk back its statement that Ramallah was violating the ICC provision, she said, “there would be tremendous backlash from people trying to turn the clock back to pre-Oslo.”

The real issue she said, however, is not the executive branch, but Congress, which is fine with passing anti-PLO laws, but doesn’t want “to spend the political capital to repeal laws” for the Palestinians.