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Set to amend ‘pay to slay,’ PA hopes Biden will shun law deeming PLO ‘terrorist’

Palestinians aim to fundamentally change relationship with US when new president takes office, hope to reopen PLO office in DC, including by overcoming a US law that hinders ties

Jacob Magid is The Times of Israel's US correspondent based in New York

Then-US vice president Joseph Biden, left, walks with Palestinian Authority President Mahmoud Abbas ahead of their meeting in the West Bank city of Ramallah on March 10, 2010. (AP/Tara Todras-Whitehill)
Then-US vice president Joseph Biden, left, walks with Palestinian Authority President Mahmoud Abbas ahead of their meeting in the West Bank city of Ramallah on March 10, 2010. (AP/Tara Todras-Whitehill)

NEW YORK — With just three weeks until US President-elect Joe Biden enters the White House, the Palestinian Authority (PA) is putting together a strategy for a reset of ties with Washington after three years of boycotting the Trump administration.

The centerpiece of the effort will be convincing the Biden administration to designate as unconstitutional congressional legislation from 1987 that labeled the Palestine Liberation Organization (PLO) “and its affiliates” a terror group, senior Palestinian officials told The Times of Israel.

They hope that doing so will set the stage for a renewed bilateral relationship — one in which Ramallah is viewed as a more equal partner, and that isn’t entirely tied to the peace process with Israel.

PA President Mahmoud Abbas severed relations with the Trump administration after US President Donald Trump recognized Jerusalem as Israel’s capital in December 2017 and moved the US embassy there from Tel Aviv in May 2018. He also preemptively rejected Trump’s January 2020 “vision” for Israeli-Palestinian peace. The administration, while repeatedly urging Abbas to reengage, drastically reduced state funding for the Palestinians.

Senior Palestinian officials told The Times of Israel that a fresh willingness to alter the way it pays stipends to Palestinian security prisoners, as well as the families of terrorists and others killed by Israelis, is aimed at laying the groundwork for the new diplomatic push.

Relatives of Palestinians held in Israeli jails hold their portraits during a protest to mark ‘Prisoners Day’ in the West Bank city of Ramallah, April 7, 2019. (AP Photo/Majdi Mohammed)

The altered policy would base the stipends on prisoners’ financial need rather than the length of their sentence, potentially marking a shift away from what has long been a sticking point for the PA’s detractors.

The readiness to amend the stipends policy was first reported by The New York Times last month and confirmed to The Times of Israel this week by a senior Palestinian official.

The practice of paying allowances to those convicted of carrying out terror attacks and to the families of those killed while carrying out attacks — often referred to by some Israeli officials as a pay-to-slay policy —  has been pilloried by critics as incentivizing terror.

Palestinian leaders have long defended the payments, describing them as a form of social welfare and necessary compensation for victims of Israel’s callous military justice system in the West Bank.

Over the past year, officials in the US and the EU have warned Ramallah that a failure to substantively change the policy would prove a major obstacle to improved relations, two sources familiar with the matter said.

Palestinians hold portraits of relatives jailed in Israeli prisons as they protest to demand for their release during a demonstration to mark the Prisoners’ Day in the northern West Bank city of Nablus on April 17, 2018. (AFP PHOTO / JAAFAR ASHTIYEH)

The change may also usher Ramallah into compliance with the 2018 Taylor Force Act, which suspended US aid to the PA as long as it continued to implement the existing prisoner payment policy.

An effort to amend the practice would be “a step forward… if it means that the welfare allocations will be similar to those of needy families, which are less than a tenth of what the terrorists earn,” said Yossi Kupferwasser, the former research division head in the IDF Military Intelligence Directorate, and a vocal critic of the PA’s stipends policy. “If not, this is a trick.”

Highlighting his skepticism, Kupferwasser pointed to an announcement earlier this month by the PA Prisoners Affairs Commission that it would pay three months of the prisoner salaries in advance in order to avoid an Israeli military order penalizing banks that distribute them.

A means to an end

As Ramallah moves to change the controversial practice, it hopes that Biden will agree to deem the Anti-Terrorism Act of 1987 an unconstitutional constraint on his powers, said two senior Palestinian officials, insisting on anonymity.

The reality has changed dramatically since 1987, the officials said. As part of the 1993 Oslo Accords, Israel recognized the PLO as the representative of the Palestinian people. The PA governing body that was formed as part of that deal has gone on to ink bilateral anti-terrorism agreements with both the US and Israel. Also as part of the accords, PLO chairman Yasser Arafat publicly renounced violence as a means for achieving self-determination — a commitment Israeli leaders have long dismissed, with many alleging that Arafat played a direct role in orchestrating the suicide bombing onslaught of the Second Intifada.

But in a post-Oslo era where Ramallah has relations with both the US and Israel, “it is simply unfair to continue deeming the PLO a terror organization,” said a member of the PLO’s National Council. Palestinian officials declined to speak on record, saying that they feared the intended strategy would be interpreted as an ultimatum to the transition team before the US president-elect even takes office.

Snubbing the 1987 law designating the PLO a terror group, as two of Biden’s predecessors did, would allow for the reopening of the PLO mission in Washington.

Distinct from, yet affiliated with the PA, the PLO coalition of Palestinian factions had been operating a diplomatic office since the Oslo Accords until it was closed by the Trump administration in 2018.

The 1987 legislation deeming the PLO a terror group remained in place, but Congress allowed for the mission’s operation, so long as the president signed a waiver every six months stipulating that doing so was a US national interest.

Then-US vice president Joseph Biden, left, and Palestinian Authority President Mahmoud Abbas ahead of their meeting in the West Bank city of Ramallah, March 10, 2010. (AP Photo/Tara Todras-Whitehill)

In 2011, Congress began placing additional conditions on the mission’s continued presence, including one requiring the president to certify that “the Palestinians have entered into direct and meaningful negotiations with Israel.” This effectively conditioned Washington’s relations with the Palestinians on a substantive peace process.

That paradigm is one the Palestinians are desperate to change. “We’re not asking to detach the peace process from the relationship entirely, but ties shouldn’t be exclusively judged based on the outcome of it, because that punishes Palestinians regardless of whether they’re responsible for the stalemate,” said the PLO’s National Council member who spoke to The Times of Israel.

Other provisions to the Anti-Terrorism Act of 1987 added by Congress in recent years have included a ban on the Palestinians joining any UN bodies or pursuing a case against Israel at the International Criminal Court.

When Ramallah began to seek action against Israel at the ICC in 2017, filing an official complaint against Israel at The Hague, it effectively prevented Trump from signing the waiver and the PLO mission was officially shuttered in September 2018.

Nonetheless, US legal tradition gives presidents wide leeway to disregard parts of laws that they deem to be unconstitutional shackles on their powers, especially regarding foreign policy.

Palestinian Authority President Mahmoud Abbas, left, listens while US President Donald Trump makes a statement for the press before a meeting at the Palace Hotel during the 72nd United Nations General Assembly on September 20, 2017, in New York. (AFP/Brendan Smialowski)

Biden could use that privilege to allow the mission to reopen, thus obviating the need for the waiver along the way. Otherwise, the only way to reopen the diplomatic office within the confines of the law would be to alter provisions that banned the Palestinians from Washington once they went to the ICC. Then the waiver process could be re-introduced.

The Palestinians, however, are intent on resetting relations entirely, rather than simply returning to the days where their operations in DC were limited and constantly under a microscope.

One Palestinian official who spoke to The Times of Israel on the condition of anonymity said Ramallah could no longer accept its presence in Washington being up for debate every six months. However, he recognized that the eradication of the 1987 law would take time and characterized it as an “intermediate goal” that would likely require at least a year to see through.

Biden indeed campaigned on reopening the PLO mission as well as a US consulate in East Jerusalem, but one former campaign adviser familiar with the transition’s discussions on the matter said that the president-elect has yet to decide how he would go about doing so.

In the meantime, the Palestinians may be forced to continue operating without representatives in Washington.

The PLO national council member acknowledged that the Israeli-Palestinian issue likely won’t be at the top of the Biden administration’s agenda, but said that declaring the 1987 legislation unconstitutional would prevent the further deterioration of US-Palestinian ties in the interim.

This photo from November 18, 2017, shows the Washington office of the Palestine Liberation Organization. (AP Photo/Alex Brandon, File)

When Trump did the Palestinians a favor

While doing so might require a degree of political capital, there is in fact precedent for the move.

In a signing statement issued at the time of the passage of the 1987 legislation, US president Ronald Reagan asserted that while he had no intention of forging ties with the Palestinians, “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” and by not Congress through legislation aimed at handcuffing the executive’s diplomatic capabilities.

Subsequent presidents chose to ignore Reagan’s concerns, even after the Oslo Accords, deciding that they would operate within the letter of the law and sign the presidential waiver every six months.

It was Trump who ended that trend. He went further than Reagan when he allowed the PLO mission to remain open for almost a year after the Palestinians began pursuing a criminal case against Israel in the ICC in the fall of 2017, in direct violation of the Congressional provision to the 1987 law.

Instead, Trump’s State Department simply asked the Palestinians to limit their operations “to those related to achieving a lasting, comprehensive peace between the Israelis and Palestinians.”

In this September 15, 1986, photo, United States president Ronald Reagan (left) speaks with Israeli prime minister Shimon Peres as Peres policy adviser Nimrod Novik takes notes, at the White House in Washington, DC. (Saar Yaacov/GPO)

The PA hopes that when it changes its prisoner payment practice, Biden will be prepared to similarly disregard the 1987 legislation. To justify the reopening of the PLO mission, the incoming president could simply point to the precedent set by Reagan and Trump. No further action would be needed. While the position could be challenged in court, the executive’s constitutionally granted authority to oversee diplomatic relations would be difficult to rebut.

Alternatively, Congress could simply repeal the Anti-Terrorism Act, but doing so would be a much taller order, given that the legislative branch has historically been much tougher on the Palestinians than the executive.

Mission impossible?

Even if the Biden administration grants Ramallah’s wish, the PA will still face obstacles once the PLO mission is reopened. This is because the return of its officials to Washington would trigger the 2018 Anti-Terrorism Clarification Act (ATCA), which allows American victims of terror to sue the PA for damages in US courts by deeming Ramallah’s monthly “martyr” allowances funding for terrorism.

Skirting such suits would require the US secretary of state to invoke exemptions listed in the legislation. This would be politically fraught but legally tenable and also easier to justify if the Biden administration could point to Ramallah’s reform of the prisoner payments policy.

Muslim worshipers listen to a speaker in front of the White House for the Friday prayer on December 8, 2017 in Washington, DC, to protest US President Donald Trump’s declaration of Jerusalem as Israel’s capital. (AFP/Mari Matsuri)

“There are forces out there that are going to be looking to exact a political price on Biden for anything that he does that is seen as conciliatory for the Palestinians,” said Foundation for Middle East Peace president Lara Friedman. “The best thing he can do is own his policies.”

She added that heeding the PA’s request regarding the 1987 legislation “would be a powerful declaration of independence by Biden from decades of foreign policy-making shackled by logic and legal constructs [imposed by Congress] geared not to promote Israeli-Palestinian peace but to prevent it.”

“Aside from declaring the law unconstitutional, Biden has no clear path to allowing the PLO back in Washington,” Friedman said.

The Biden transition team and the Israeli Prime Minister’s Office declined a request to comment on this story.

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