(FY2020 MINIBUS, INCL SFOPS) HR. 1865: Following lengthy negotiations between House and Senate conferees, this week the House and Senate passed a “minibus” appropriations bill that includes the FY20 SFOPS bill along with other foreign policy-related initiatives. It was adopted in the House on 12/17 by a vote of mostly party-line vote of 297-120, and in the Senate 12/19 by a vote of 71-23.
Also see: Menendez (D-NJ) press release on passage of “Eastern Mediterranean Security and Energy Partnership Act of 2019” as part of the minibus; Lankford (R-OK) press release on the inclusion in the bill of the ATCA fix which will make it do an even better job than the original helping lawfare organizations to sue the PLO/PA out of existence; Wyden (D-OR) press release applauding inclusion in the bill of language to investigate KSA’s role in helping Saudi nationals who committed a crime in the US evade justice.
For a comprehensive review of Middle East-related elements of the bill, including the ATCA “fix,” see below.
DIVISION G–DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS APPROPRIATIONS ACT, 2020
TITLE I — DEPARTMENT OF STATE AND RELATED AGENCY
United States Agency for Global Media, International Broadcasting Operations (in all prior bills under section entitled, “Board of Governors, international broadcasting operation”): Perennial bill language providing $798,696,000 “to carry out international communication activities, and to make and supervise grants for radio, Internet, and television broadcasting to the Middle East and global Internet freedom programs.” [The JES specifies that this includes $110,312,000 for Middle East Broadcasting Networks]
Center for Middle Eastern-Western Dialogue Trust Fund: Perennial bill provision stating: “For necessary expenses of the Center for Middle Eastern-Western Dialogue Trust Fund, as authorized by section 633 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2004 (22 U.S.C. 2078), the total amount of the interest and earnings accruing to such Fund on or before September 30, 2020, to remain available until expended.” [The JES states that this amount to “$245,000 from interest and earnings.”]
Israeli Arab Scholarship Program: Perennial bill provision stating: “For necessary expenses of the Israeli Arab Scholarship Program, as authorized by section 214 of the Foreign Relations Authorization Act, Fiscal Years 1992 and 1993 (22 U.S.C. 2452 note), all interest and earnings accruing to the Israeli Arab Scholarship Fund on or before September 30, 2020, to remain available until expended.” [The JES states that this amount to “$124,000 from interest and earnings.”]
TITLE III — BILATERAL ECONOMIC ASSISTANCE
ECONOMIC SUPPORT FUNDS (ESF)
The bill earmarks $3,045,000,000 in ESF, to remain available until Sept. 30, 2021 (See Sec. 7041, below, for further details of Middle East funding).
=====>IMPORTANT: Because this is 2-year funding (to be spent by 9/20/21), Trump does not legally have to spend any of this ESF in 2020 (in theory, a new President would have to spend it in 2021, or if Trump is re-elected, he would have to or he would be in an impoundment situation)
The funding table includes in the JES sets out ESF for the Middle East as follows:
- Lebanon Scholarships: $12,000,000
- MEPI scholarship program: $20,000,000
- Middle East Regional Cooperation: $5,000,000
- Near East Regional Democracy Relief & Recovery Fund: $55,000,000 [of which Refugee Scholarships Program in Lebanon, $8,000,000]
- West Bank and Gaza: $75,000,000
The JES also notes: “The agreement does not provide $175,000,000 for a Diplomatic Progress Fund, as proposed in the House report.” [This was the fund that was supposed to support Trump’s Middle East peace plan]
MIGRATION AND REFUGEE ASSISTANCE – MRA (Total: $ 3,432,000,000]
The bill stipulates that, “$5,000,000 shall be made available for refugees resettling in Israel.”
TITLE IV – INTERNATIONAL SECURITY ASSISTANCE
NONPROLIFERATION, ANTI-TERRORISM, DEMINING AND RELATED PROGRAMS – NADR
This section of the bill includes a perennial stipulation that “…funds appropriated under this heading may be made available for the IAEA unless the Secretary of State determines that Israel is being denied its right to participate in the activities of that Agency.”
PEACEKEEPING OPERATIONS – PKO
The bill stipulates that, “…not less than $31,000,000 shall be made available for a United States contribution to the Multinational Force and Observers mission in the Sinai.”
FOREIGN MILITARY FINANCING – FMF (TOTAL: $6,156,924,000]
See the bill text in Sec. 7041 below, for details of FMF provisions for all Middle East countries except Israel.
With respect to Israel, the bill states that, “not less than $3,300,000,000 shall be available for grants only for Israel.” It includes the perennial stipulations giving Israel this funding in a lump sum “which shall be disbursed not later than 30 days after enactment of this Act,” of which “not less than $805,300,000 shall be available for the procurement in Israel of defense articles and defense services, including research and development.”
The funding table includes in the JES sets out FMF for the Middle East as follows:
- Egypt: $1,300,000,000
- Iraq: $250,000,000
- Israel: $3,300,000,000
- Jordan: $425,000,000
- Morocco: $10,000,000
- Tunisia: $85,000,000
TITLE V – MULTILATERAL ASSISTANCE
The JES notes in the section entitled “International organizations and programs” that “The agreement does not include assistance for the West Bank and Gaza under this heading, as proposed in the House report.”
TITLE VII – GENERAL PROVISIONS
Sec. 7004: Diplomatic Facilities
The JES notes under this section that, “The Secretary of State shall continue to provide the quarterly reports on new embassy and consulate compounds as required by section 7004(h) of division F of Public Law 116-6 and shall include ins such reports the new embassy compound in Jerusalem, Israel.”
Sec. 7007: Prohibition against direct funding for certain countries
This is perennial bill language banning aid to Cuba, North Korea, Iran, and Syria, extending to loans, credits, insurance, and guarantees of the Export-Import Bank or its agents.
Sec. 7008: Coups d’Etat
This perennial bill provision (which caused Congress and the Obama Administration a headache over Egypt funding) states: “None of the funds appropriated or otherwise made available pursuant to titles III through VI of this Act shall be obligated or expended to finance directly any assistance to the government of any country whose duly elected head of government is deposed by military coup d’état or decree or, after the date of enactment of this Act, a coup d’état or decree in which the military plays a decisive role.” It also states that “assistance may be resumed to such government if the Secretary of State certifies and reports to the appropriate congressional committees that subsequent to the termination of assistance a democratically elected government has taken office” and that the prohibition in this section “shall not apply to assistance to promote democratic elections or public participation in democratic processes.”
Sec. 7013: Prohibition on taxation of assistance
This is a perennial bill provision barring taxation of U.S. assistance. While this provision appears generic, the only recipient explicitly identified is the West Bank and Gaza [ironic, since the Trump Administration has cut off all funding to it]. This reflects the genesis of the provision: long-past allegations that the Palestinian Authority (PA) was taxing U.S. assistance provided to NGOs (and recall that under existing law direct aid to the PA is prohibited), thereby indirectly benefiting from US assistance designed specifically to bypass the PA.
Sec. 7015(f): Notification Requirements
Part (f) of this bill provision states that no funds appropriated under titles III through VI of this Act (pretty much all funds in the bill) may be obligated or expended for assistance to a laundry list of countries, “except as provided through regular notification procedures of the Committees on Appropriations.” From the Middle East, the list includes (this year): Bahrain, Egypt, Iran, Iraq, Lebanon, Libya, Sudan, Syria, and Yemen.
Sec. 7021: Prohibition on assistance to governments supporting international terrorism
Perennial bill provision prohibiting funding to any country “which provides lethal military equipment to a country the government of which the Secretary of State has determined supports international terrorism…” and prohibits bilateral assistance to any country that supports international terrorism, gives sanctuary to terrorist, or is controlled by a terrorist organization. The section includes national security waivers for both restrictions.
Sec. 7031: Financial Management and Budget Transparency
Part (c) of this provision, entitled “Anti-Kleptocracy and Human Rights” bars entry into the U.S. of “Officials of foreign governments and their immediate family members about whom the Secretary of State has credible information have been involved, directly or indirectly, in significant corruption, including corruption related to the extraction of natural resources, or a gross violation of human rights,” except when such entry “would further important United States law enforcement objectives or is necessary to permit the United States to fulfill its obligations under the United Nations Headquarters Agreement,” and the bar to entry may be waived by the Secretary of State of it serves a “compelling national interest” or the individual has changed his/her evil ways.
Sec. 7032: Democracy Programs
The funding table includes in the JES setting out ESF funding for DRL in the Middle East includes $3,000,000 for Yemen.
Sec. 7033: International Religious Freedom
Part (c) of this provision states that ESF “may be made available notwithstanding any other provision of law for assistance for ethnic and religious minorities in Iraq and Syria.”
Sec. 7035: Special Provisions
Part (o) of this provision stipulates that funds appropriated under the headings ‘Economic Support Fund’ and ‘Assistance for Europe, Eurasia and Central Asia’ by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs may be made available for the costs, as defined in section 502 of the Congressional Budget Act of 1974, of loan guarantees for Egypt, Jordan, Tunisia, and Ukraine, which are authorized to be provided: Provided, That amounts made available under this paragraph for the costs of such guarantees shall not be considered assistance for the purposes of provisions of law limiting assistance to a country.
Sec. 7035: Law Enforcement and Security
- Part (a)(2) of this provision states that “Funds appropriated by this Act under the heading ‘’Nonproliferation, Anti-terrorism, Demining and Related Programs’ shall be made available for the Counterterrorism Partnerships Fund for programs in areas liberated from, under the influence of, or adversely affected by, the Islamic State of Iraq and Syria or other terrorist organizations: Provided, That such areas shall include the Kurdistan Region of Iraq.”
- Part (b)(4), of this section of the bill is a perennial provision providing for financing of commercial leasing of defense articles to Israel, Egypt, and the North Atlantic Treaty Organization (NATO), and major non-NATO allies.
- Part (c)(2)(A), lays out limitations related to landmines and cluster munitions
- Part (c)(3) states that funds in this act “should not [NOT “shall not”] be used for tear gas, small arms, light weapons, ammunition, or other items for crowd control purposes for foreign security forces that use excessive force to repress peaceful expression, association, or assembly in countries that the Secretary of State determines are undemocratic or are undergoing democratic transitions.”
Sec. 7036: Arab League Boycott of Israel
Perennial bill text, in the form of a Sense of Congress (appearing this year in a new section of the bill) opposing the Arab League boycott of Israel, and the secondary boycott of American firms that have commercial ties with Israel.
Sec. 7037: Palestinian statehood
Perennial bill provision barring (with extensive language) assistance to a Palestinian state that does not meet a series of conditions (includes perennial Presidential waiver authority).
Sec. 7038: Prohibition on Assistance to the Palestinian Broadcasting Corporation
Perennial language barring any U.S. assistance to the Palestinian Broadcasting Corporation.
Sec. 7039: Assistance for the West Bank and Gaza
Oversight: Part (a) of this section of the bill requires that “30 days prior to the initial obligation of funds for the bilateral West Bank and Gaza Program, the Secretary of State shall certify to the Committees on Appropriations that procedures have been established to assure the Comptroller General of the United States will have access to appropriate United States financial information in order to review the uses of United States assistance for the Program funded under the heading ‘Economic Support Fund’ for the West Bank and Gaza.”
Vetting: Part (b) of this section requires that “Prior to the obligation of funds appropriated by this Act under the heading ‘Economic Support Fund’ for assistance for the West Bank and Gaza, the Secretary of State shall take all appropriate steps to ensure that such assistance is not provided to or through any individual, private or government entity, or educational institution that the Secretary knows or has reason to believe advocates, plans, sponsors, engages in, or has engaged in, terrorist activity nor, with respect to private entities or educational institutions, those that have as a principal officer of the entity’s governing board or governing board of trustees any individual that has been determined to be involved in, or advocating terrorist activity or determined to be a member of a designated foreign terrorist organization: Provided, That the Secretary of State shall, as appropriate, establish procedures specifying the steps to be taken in carrying out this subsection and shall terminate assistance to any individual, entity, or educational institution which the Secretary has determined to be involved in or advocating terrorist activity.”
Prohibition: Part (c) stipulates that “None of the funds appropriated under titles III through VI of this Act for assistance under the West Bank and Gaza Program may be made available for— (A) the purpose of recognizing or otherwise honoring individuals who commit, or have committed acts of terrorism; and (B) any educational institution located in the West Bank or Gaza that is named after an individual who the Secretary of State determines has committed an act of terrorism.” It also stipulates that “Notwithstanding any other provision of law, none of the funds made available by this or prior appropriations Acts, including funds made available by transfer, may be made available for obligation for security assistance for the West Bank and Gaza until the Secretary of State reports to the Committees on Appropriations on the benchmarks that have been established for security assistance for the West Bank and Gaza and reports on the extent of Palestinian compliance with such benchmarks.”
Oversight by USAID: Part (d) lays out detailed requirements for oversight of funds and programs by USAID, including annual (at least) “Federal and non-Federal audits of all contractors and grantees, and significant subcontractors and sub-grantees, under the West Bank and Gaza Program” and earmarking up to $1 million for that purpose. Part (e) requires an additional audit and investigation by the Comptroller General of the US of the treatment, handling, and uses of all funds for the bilateral West Bank and Gaza Program, including all funds provided as cash transfer assistance,” and includes specific issues to be addressed.
Sec. 7040: Limitation on Assistance for the Palestinian Authority
Part (a) bans any funding for the Palestinian Authority.
Part (b) permits the President to waive the ban on aid to the PA if the President certifies that “waiving such prohibition is important to the national security interest of the United States.
Part (c) says that such waiver shall be effective for 6 month at a time
Part (d) requires a report to Congress whenever the waiver is used
Part (e) requires the President, if exercising the waiver, to certify to Congress that various conditions for how the funding is provided have been met (funds flowing through single treasury account; PA is “acting to counter incitement of violence against Israelis and is supporting activities aimed at promoting peace, coexistence, and security cooperation with Israel.
Part (f)(1) is a perennial prohibition on funding to Hamas and to the Palestine Liberation Organization. This includes salaries of PA personnel in Gaza or any unity government/reconciliation government that includes Hamas or comes out of an agreement with Hamas and “over which Hamas exercises undue influence.”
Part (f)(2) stipulates that aid may be given to a power-sharing government if the President certifies that “such government, including all if its ministers or such equivalent, has publicly accepted and is complying with the principles contained in section 620K(b)(1)(A) and (B) of the Foreign Assistance Act of 1961, as amended.”
Part (f)(3) states “the President may exercise the authority in section 620K(e) of the Foreign Assistance Act of 1961, as added by the Palestine Anti-Terrorism Act of 2006 (Public Law 109-446) with respect to this subsection.”
Part (f)(4) requires a report to Congress by the Secretary of State in the event that such authority is exercised.
Part (f)(5) bars any funding to the PLO.
As a reminder: Section 620K(b)(1)(A) and (B) of the Foreign Assistance Act of 1961, as amended, reads as follows:
(b) Certification.–A certification described in subsection (a) is a certification transmitted by the President to Congress that contains a determination of the President that–
(1) no ministry, agency, or instrumentality of the Palestinian Authority is effectively controlled by Hamas, unless the Hamas-controlled Palestinian Authority has–
(A) publicly acknowledged the Jewish state of Israel’s right to exist; and
(B) committed itself and is adhering to all previous agreements and understandings with the United States Government, with the Government of Israel, and with the international community, including agreements and understandings pursuant to the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (commonly referred to as the `Roadmap’).
And 620K(e) reads as follows:
(e) National Security Waiver.–
(1) In general.–Subject to paragraph (2), the President may waive subsection (a) with respect to-
(A) the administrative and personal security costs of the Office of the President of the Palestinian Authority;
(B) the activities of the President of the Palestinian Authority to fulfill his or her duties as President, including to maintain control of the management and security of border crossings, to foster the Middle East peace process, and to promote democracy and the rule of law; and
(C) assistance for the judiciary branch of the Palestinian Authority and other entities.
(2) Certification.–The President may only exercise the waiver authority under paragraph (1) after–
(A) consulting with, and submitting a written policy justification to, the appropriate congressional committees; and
(B) certifying to the appropriate congressional committees that–
(i) it is in the national security interest of the United States to provide assistance otherwise prohibited under subsection (a); and
(ii) the individual or entity for which assistance is proposed to be provided is not a member of, or effectively controlled by (as the case may be), Hamas or any other foreign terrorist organization.
(3) Report.—Not later than 10 days after exercising the waiver authority under paragraph (1), the President shall submit to the appropriate congressional committees a report describing how the funds provided pursuant to such waiver will be spent and detailing the accounting procedures that are in place to ensure proper oversight and accountability.
(4) Treatment of certification as notification of program change.–For purposes of this subsection, the certification required under paragraph (2)(B) shall be deemed to be a notification under section 634A and shall be considered in accordance with the procedures applicable to notifications submitted pursuant to that section.
Sec. 7041: Middle East and North Africa
Sec. 7041 (a) Egypt [Total funding earmarked: $4,431,800,000]
The JES includes a table laying out funding for Egypt as follows:
- ESF: $ 125,000,000
- INCE: $ 2,000,000
- NADR:$. 3,000,000
- IMET: $ 1,800,000
- FMF: $1,300,000,000
The JES also stipulates that not later than 90 days after enactment of the Act, the Secretary of State “shall submit a report to the appropriate congressional committees describing the implementation of Egyptian Law 149/2019 and its impact on Egyptian and foreign NGOs” and “Not later than 45 days after enactment of the Act, the USAID Administrator shall consult with the Committees on Appropriations on the use of funds made available for scholarships, including how such funds will be administered by institutions of higher education in Egypt.”
> Overall conditions on aid: “Funds appropriated by this Act that are available for assistance for Egypt may be made available notwithstanding any other provision of law restricting assistance for Egypt, except for this subsection and section 620M of the Foreign Assistance Act of 1961 (22 U.S.C. 2378d), and may only be made available for assistance for the Government of Egypt if the Secretary of State certifies and reports to the Committees on Appropriations that such government is— (A) sustaining the strategic relationship with the United States; and (B) meeting its obligations under the 1979 Egypt-Israel Peace Treaty.”
Reminder: Section 620M of the Foreign Assistance Act of 1961 states that “No assistance shall be furnished under this Act or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.” It adds that this prohibition “shall not apply if the Secretary determines and reports to the Committee on Foreign Relations of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committees on Appropriations that the government of such country is taking effective steps to bring the responsible members of the security forces unit to justice.”
> ESF: The bill earmarks not less than $125 million in ESF for Egypt, of not less than $40 million “should be made available for higher education programs, including not less than $15,000,000 for scholarships for Egyptian students with high financial need to attend not-for-profit institutions of higher education in Egypt that are currently accredited by a regional accrediting agency recognized by the United States Department of Education, or meets standards equivalent to those required for United States institutional accreditation by a regional accrediting agency recognized by such Department.” The bill also stipulates that ESF for Egypt “shall be made available for democracy programs, and for development programs in the Sinai” and that they “may not be made available for cash transfer assistance or budget support unless the Secretary of State certifies and reports to the appropriate congressional committees that the Government of Egypt is taking consistent and effective steps to stabilize the economy and implement market-based economic reforms.”
> FMF: The bill earmarks up to $1.3 billion in FMF for Egypt, to remain available until September 30, 2021 (and stipulates that these funds may be transferred to the interest bearing account – a benefit granted to Egypt years ago by Congress to try to create some symmetry with Israel’s early disbursal provision). The bill stipulates that $300 million of such funds shall be withheld until the Secretary of State certifies and reports to Congress that the Government of Egypt is taking sustained and effective steps to meet a long list of goals relating to democracy, human rights, political reform, release of political prisoners and detainees, holding security forces accountable, etc. The bill stipulates that this certification requirement does not apply “to funds appropriated by this Act under such heading for counterterrorism, border security, and nonproliferation programs for Egypt.”
> WAIVER: The bill also provides the Secretary of State authority to waive the certification requirement on FMF “if the Secretary determines and reports to the Committees on Appropriations that to do so is important to the national security interest of the United States, and submits a report to such Committees containing a detailed justification for the use of such waiver and the reasons why any of the requirements of subparagraph (A) cannot be met…”
> REPORT: The bill requires the Secretary of State to report to Congress every 60 days “assessing the actions taken by the Government of Egypt during the previous 60 days to fairly compensate April Corley for injuries and losses sustained as a result of the attack on her tour group by the Egyptian military on September 13, 2015, and progress in resolving her case: Provided, That if the Secretary reports that no progress has been made in the previous 60 days, the report shall include the reasons for the lack of progress.
Sec. 7041 (b) Iran
This section of the bill states that ESF, NADR, and “Diplomatic Programs” funds “shall be made available for shall be made available for the programs and activities described under this section in House Report 116–78.”
Note: The programs described in House Report 116-78 are:
“(1) to support the United States policy to prevent Iran from achieving the capability to produce or otherwise obtain a nuclear weapon; (2) to support an expeditious response to any violation of United Nations Security Council Resolutions or to efforts that advance Iran’s nuclear program; (3) to support the implementation, enforcement, and renewal of sanctions against Iran for its support of nuclear weapons development, terrorism, human rights abuses, and ballistic missile and weapons proliferation; and (4) for democracy programs for Iran, to be administered by the Assistant Secretary for Near Eastern Affairs, Department of State, in consultation with the Assistant Secretary for Democracy, Human Rights, and Labor, Department of State.”
The bill also requires the semi-annual report required by section 135(d)(4) of the Atomic Energy Act of 1954 (42 U.S.C. 2160e(d)(4)), as added by section 2 of the Iran Nuclear Agreement Review Act of 2015 (Public Law 114–17). As a reminder, 42 U.S.C. 2160e(d)(4) states:
Not later than 180 calendar days after entering into an agreement described in subsection (a), and not less frequently than once every 180 calendar days thereafter, the President shall submit to the appropriate congressional committees and leadership a report on Iran’s nuclear program and the compliance of Iran with the agreement during the period covered by the report, including the following elements:
(A) Any action or failure to act by Iran that breached the agreement or is in noncompliance with the terms of the agreement.
(B) Any delay by Iran of more than one week in providing inspectors access to facilities, people, and documents in Iran as required by the agreement.
(C) Any progress made by Iran to resolve concerns by the International Atomic Energy Agency about possible military dimensions of Iran’s nuclear program.
(D) Any procurement by Iran of materials in violation of the agreement or which could otherwise significantly advance Iran’s ability to obtain a nuclear weapon.
(E) Any centrifuge research and development conducted by Iran that-
(i) is not in compliance with the agreement; or
(ii) may substantially reduce the breakout time of acquisition of a nuclear weapon by Iran, if deployed.
(F) Any diversion by Iran of uranium, carbon-fiber, or other materials for use in Iran’s nuclear program in violation of the agreement.
(G) Any covert nuclear activities undertaken by Iran, including any covert nuclear weapons-related or covert fissile material activities or research and development.
(H) An assessment of whether any Iranian financial institutions are engaged in money laundering or terrorist finance activities, including names of specific financial institutions if applicable.
(I) Iran’s advances in its ballistic missile program, including developments related to its long-range and inter-continental ballistic missile programs.
(J) An assessment of-
(i) whether Iran directly supported, financed, planned, or carried out an act of terrorism against the United States or a United States person anywhere in the world;
(ii) whether, and the extent to which, Iran supported acts of terrorism, including acts of terrorism against the United States or a United States person anywhere in the world;
(iii) all actions, including in international fora, being taken by the United States to stop, counter, and condemn acts by Iran to directly or indirectly carry out acts of terrorism against the United States and United States persons;
(iv) the impact on the national security of the United States and the safety of United States citizens as a result of any Iranian actions reported under this paragraph; and
(v) all of the sanctions relief provided to Iran, pursuant to the agreement, and a description of the relationship between each sanction waived, suspended, or deferred and Iran’s nuclear weapon’s program.
(K) An assessment of whether violations of internationally recognized human rights in Iran have changed, increased, or decreased, as compared to the prior 180-day period.
In addition, the bill requires a report to Congress on sanctions, covering: “(i) the status of United States bilateral sanctions on Iran; (ii) the reimposition and renewed enforcement of secondary sanctions; and (iii) the impact such sanctions have had on Iran’s destabilizing activities throughout the Middle East.”
Sec. 7041 (c) Iraq [Total funding earmarked: $451,600,000]
The JES includes a table laying out funding for Iraq as follows:
- ESF: $150,000,000 (of which, Marla Ruzick Fund – $7,500,000; Scholarships $10,000,000]
- INCLE: $5,600,000
- NADR: $45,000,000
- IMET: $1,000,000
- FMF: $250,000,000
The bill states that funds “shall be made available for assistance to Iraq for: “(A) bilateral economic assistance and international security assistance, including in the Kurdistan Region of Iraq and for the Marla Ruzicka Iraqi War Victims Fund; (B) stabilization assistance, including in Anbar Province; (C) humanitarian assistance, including in the Kurdistan Region of Iraq; and (D) programs to protect and assist religious and ethnic minority populations in Iraq, including as described under this section in the explanatory statement described in section 4 (in the matter preceding division A of this consolidated Act).”
This section also stipulates that any chance in the status of US ConGen Basrah “shall be subject to prior consultation” with Congress. It also notes that “None of the funds appropriated or otherwise made available by this Act may be use by the Government of the United States to enter into a permanent basing rights agreement between the United States and Iraq.“
Sec. 7041 (d) Jordan
The bill earmarks, under titles III and IV, not less than $1,525 billion for Jordan, of which: “not less than $1,082,400,000 shall be made available under the heading “Economic Support Fund”, of which not less than $745,100,000 shall be made available for budget support for the Government of Jordan; and not less than $425,000,000 shall be made available under the heading `Foreign Military Financing Program.’” The bill also stipulates that with respect to ESF appropriated under prior Acts, “not less than $125,000,000 shall be made available for assistance for Jordan, of which $100,000,000 shall be made available for budget support for the Government of Jordan and $25,000,000 shall be made available for programs to increase electricity transmission to neighboring countries, including Iraq,” in addition to amounts otherwise made available for such purposes.
The JES also stipulates that, “In addition to the amounts designated in the Act for Economic Support Fund and Foreign Military Financing Program for assistance for Jordan, the agreement includes not less than $13,600,000 under Nonproliferation, Anti-terrorism, Demining and Related Programs and not less than $4,000,000 under International Military Education and Training for assistance for Jordan. Subsection (d) also makes an additional $125,000,000 available for assistance for Jordan from prior fiscal year Economic Support Fund.”
Sec. 7041 (e) Lebanon
>Overarching condition: The bill states that “None of the funds appropriated by this Act may be made available for the ISF or the LAF if the ISF or the LAF is controlled by a foreign terrorist organization, as designated pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).”
>General: This section states that funding in the Act under Title III (bilateral economic assistance) and Title IV (Int’l Security Assistance) “shall be made available for assistance for Lebanon,” and that ESF funding may be made available notwithstanding the 2003 law requiring the withholding of $10 million unless the President makes a certification regarding Lebanon’s armed forces.
>Security Assistance: The bill stipulates that INCLE and FMF for Lebanon “may be made available for programs and equipment for the Lebanese Internal Security Forces (ISF) and the Lebanese Armed Forces (LAF) to address security and stability requirements in areas affected by conflict in Syria, following consultation with the appropriate congressional committees.” It also states that FMF for Lebanon may only be used for programs to: “(i) professionalize the LAF to mitigate internal and external threats from non-state actors, including Hizballah; (ii) strengthen border security and combat terrorism, including training and equipping the LAF to secure the borders of Lebanon and address security and stability requirements in areas affected by conflict in Syria, interdicting arms shipments, and preventing the use of Lebanon as a safe haven for terrorist groups; and (iii) implement United Nations Security Council Resolution 1701.” It also requires the Secretary of State to submit to Congress a spend plan prior to obligating any such funds, “including actions to be taken to ensure equipment provided to the LAF is used only for the intended purposes” (such spend plan does not replace regular notification requirements). It also stipulates that “any notification submitted pursuant to such section shall include any funds specifically intended for lethal military equipment.”
Sec. 7041 (f) Libya
The bill states that funding in the Act under Title III (bilateral economic assistance) and Title IV (Int’l Security Assistance) “shall be made available for stabilization assistance for Libya, including support for a United Nations-facilitated political process and border security.” It adds that the limitation on the uses of funds for certain infrastructure projects, as laid out in section 7041(f)(2) of the 2014 Consolidated Approps bill shall apply to such funds [this is: “None of the funds appropriated by this Act may be made available for assistance for Libya for infrastructure projects, except on a loan basis with terms favorable to the United States, and only following consultation with the Committees on Appropriations.”]. This section also requires that, prior to obligating funds for Libya under this Act, “the Secretary of State shall certify and report to the Committees on Appropriations that all practicable steps have been taken to ensure that mechanisms are in place for monitoring, oversight, and control of such funds.” The JES notes that: “The agreement includes not less than $40,000,000 under the Relief and Recovery Fund for stabilization assistance for Libya, including support for a United Nations-facilitated political process and border security.”
Sec. 7041 (g) Morocco [Total funding earmarked: $41,000,000]
The JES includes a table laying out funding for Iraq as follows:
- DA: $10,000,000
- ESF: $10,000,000
- INCLE: $5,000,000
- NADR: $4,000,000
- IMET: $2,000,000
- FMF: $10,000,000
The JES also states that, “Additional funds provided for Morocco under Nonproliferation, Anti-terrorism, Demining and Related Programs shall be used to address security threats emanating from Libya and the Sahel.”
>ESF: The bill states that funding in the Act under Title III (bilateral economic assistance) shall be made available for assistance for the Western Sahara, subject to advance consultation by the Secretary of State with USAID and Congress on the proposed use of such funds.
>FMF: The bill states that FMF for Morocco may only be used for the purposes requested in the Congressional Budget Justification, Foreign Operations, Fiscal Year 2017 (here, pp 196-197).
Sec. 7041 (h) Saudi Arabia
>IMET: The bill stipulates that “None of the funds appropriated by this Act under the heading ‘International Military Education and Training’ may be made available for assistance for the Government of Saudi Arabia.”
>EX-IM bank & KSA Nuclear program: It also states that “None of the funds appropriated or otherwise made available by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs should [not SHALL] be obligated or expended by the Export-Import Bank of the United States to guarantee, insure, or extend (or participate in the extension of) credit in connection with the export of nuclear technology, equipment, fuel, materials, or other nuclear technology-related goods or services to Saudi Arabia unless the Government of Saudi Arabia– (A) has in effect a nuclear cooperation agreement pursuant to section 123 of the Atomic Energy Act of 1954 (42 U.S.C. 2153); (B) has committed to renounce uranium enrichment and reprocessing on its territory under that agreement; and (C) has signed and implemented an Additional Protocol to its Comprehensive Safeguards Agreement with the International Atomic Energy Agency.”
Sec. 7041 (i) Syria
The bill states that not less than $40 million appropriated by this Act under ESF, INCLE, and PKO “shall be made available, notwithstanding any other provision of law, for non-lethal stabilization assistance for Syria, of which not less than $7,000,000 shall be made available for emergency medical and rescue response and chemical weapons use investigations.”
The bill stipulates that such funds “(A) may not be made available for a project or activity that supports or otherwise legitimizes the Government of Iran, foreign terrorist organizations (as designated pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189)), or a proxy of Iran in Syria; (B) may not be made available for activities that further the strategic objectives of the Government of the Russian Federation that the Secretary of State determines may threaten or undermine United States national security interests; and (C) should not be used in areas of Syria controlled by a government led by Bashar al-Assad or associated forces.”
It also states that “Prior to the obligation of any funds appropriated by this Act and made available for assistance for Syria, the Secretary of State shall take all practicable steps to ensure that mechanisms are in place for monitoring, oversight, and control of such assistance inside Syria” and requires consultation with Congress, in addition to regular notification requirements.
The JES notes: “The agreement provides assistance to continue to strengthen the capability of Syrian civil society organizations to address the immediate and long-term needs of the Syrian people in the manner described under this section in the House report.”
Sec. 7041 (j) Tunisia [Total funding earmarked: $191,400,000]
The JES includes a table laying out funding for Tunisia as follows:
- DA: $40,000,000
- ESF: $45,000,000
- INCLE: $13,000,000
- NADR: $6,100,000
- IMET: $2,300,000
- FMF: $85,000,000
The bill states that “of the funds appropriated under titles III and IV of this Act, not less than $191,400,000 shall be made available for assistance for Tunisia.” It also states that “Of the funds appropriated under the heading ‘Economic Support Fund’ in prior Acts making appropriations for the Department of State, foreign operations, and related programs, not less than $50,000,000 shall be made available for assistance for Tunisia: Provided, That such funds are in addition to amounts otherwise made available for such purposes.”
Sec. 7041 (k) West Bank and Gaza [Total funding earmarked: $75,000,000]
NOTE: See below [Division J of the bill, Section 903] for the ATCA “fix” that is designed to permit the re-starting of security aid that funds Israeli-Palestinian security cooperation (for the benefit of Israel) as well as the re-starting of the limited amount of funding available for Palestinian programs (subject to the Taylor Force Act, which bars all aid that directly benefits the PA, and subject to the further limitations below). Also note that this ATCA “fix” is designed, to facilitate US courts imposing massive financial judgments against the PA, sought not merely to get financial compensation for victims of terror, but rather for the explicit purpose of bankrupting the PA and PLO out of existence.
ALSO NOT: As in past SFOPS bills, the Palestinian section is the longest of all the sections for any Middle East aid recipient, which is especially notable because the Palestinians are also the only Middle East aid recipient for which there are many other limits/conditions/restrictions/etc stipulated elsewhere in the bill – making US aid to the Palestinians, dollar-for-dollar, the most limited/conditioned/restricted/etc aid the US gives in the region, if not the world.
The JES notes: “The agreement provides $75,000,000 under International Narcotics Control and Law Enforcement for security assistance programs for the West Bank and $75,000,000 under Economic Support Fund for the humanitarian and development needs of the Palestinian people in the West Bank and Gaza. Such funds shall be made available if the Anti- Terrorism Clarification Act of 2018 is amended to allow for their obligation.”
The JES also stipulates: “Not later than 60 days after enactment of the Act, the Secretary of State shall update the report regarding assistance for the West Bank and Gaza required under this heading in the joint explanatory statement accompanying division F of Public Law 116-6.” As a reminder, that was a report detail “assistance for the West Bank and Gaza appropriated in prior Acts by fiscal year, account, and program that are withheld from obligation or disbursement, the specific reason for such withholding, and the impact of such withholding on the welfare of the Palestinian people and the national interests of the United States, Israel, and Jordan. The report shall also include a description of any policy review on assistance for the West Bank and Gaza undertaken by the Department of State, USAID, or any other Federal entity, including the date on which the review was initiated, the participants in the review, any consultations by such participants with foreign or nongovernmental entities, and the findings of the review, if concluded.”
REPORT ON ASSISTANCE: The bill stipulates that prior to the initial obligation of ESF under this Act for the West Bank and Gaza the Secretary of State shall report to the Committees on Appropriations that the purpose of such assistance is to: (A) advance Middle East peace; (B) improve security in the region; (C) continue support for transparent and accountable government institutions; (D) promote a private sector economy; or (E) address urgent humanitarian needs.
ESF to the PA (i.e., conditioning aid on Palestinians giving up independent foreign policy): The bill bars any ESF for the Palestinian Authority (PA) if, after the date of enactment of this Act, “(I) the Palestinians obtain the same standing as member states or full membership as a state in the United Nations or any specialized agency thereof outside an agreement negotiated between Israel and the Palestinians; or (II) the Palestinians initiate an International Criminal Court (ICC) judicially authorized investigation, or actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.” [NOTE: The Trump Administration’s refusal in November 2017 to issue the waiver to allow the PLO mission in Washington to remain open was based on its determination that the Palestinians are in violation of this second requirement]. It also grants the President the ability to waive the first requirement (but not the second) if he certifies that, and reports to Congress how, “the waiver and the continuation of assistance would assist in furthering Middle East peace.”
The PLO Mission in the US (i.e., conditioning relations with the Palestinians giving up independent foreign policy): In November 2017, the Trump Administration declined to waive the law barring the PLO from operating in the US; it subsequently allowed the mission to stay open until September 2018, in brazen violation of the law (if Obama had done that, Congress would have taken him to court; in the Trump era, meh). At any rate, the mission is closed.] Notwithstanding the closure of the mission, the bill [consistent with past SFOPS language] states that the President may waive the law barring the PLO from having an office in the U.S. if he determines and certifies to Congress that the Palestinians have not, after the date of enactment of this Act, “(I) obtained in the United Nations or any specialized agency thereof the same standing as member states or full membership as a state outside an agreement negotiated between Israel and the Palestinians; and (II) initiated or actively supported an ICC investigation against Israeli nationals for alleged crimes against Palestinians.” It adds that all of this can be waived, along with the law barring the PLO from operating in the US, if the President determines and certifies to Congress that “the Palestinians have entered into direct and meaningful negotiations with Israel” (but only for 6 months at a time – underscoring the fact that the US-Palestinian relationship is never truly seen as a direct, bilateral relationship, but rather is defined by the Israel-Palestinian relationship).
Reduction for Payments to Families of Prisoners: Under the conditions above, it is unlikely the U.S. can grant any ESF to the PA. Moreover, with the Taylor Force Act as law, the U.S. is comprehensively barred from giving any aid that can be categorized as directly benefiting the PA (in effect blacklisting all aid to the Palestinians, with the onus being on State and USAID to make the case for why some aid should be whitelisted). These realities notwithstanding, this section of the law imposes a reduction in ESF hypothetically available to the PA, “by an amount the Secretary determines is equivalent to the amount expended by the Palestinian Authority, the Palestine Liberation Organization, and any successor or affiliated organizations with such entities as payments for acts of terrorism by individuals who are imprisoned after being fairly tried and convicted for acts of terrorism and by individuals who died committing acts of terrorism during the previous calendar year.” [In effect, it is double bang for the Taylor Force Act buck].
Private Sector Partnership Programs: This section makes funds available “for private sector partnership programs for the West Bank and Gaza if such funds are authorized,” and subject to prior consultation with Congress regular notification procedures.
Security report. This provision states that the reporting requirements in section 1404 of PL 110-252 shall apply to funds made available by this Act. As a reminder, these are: “Not later than 90 days after the date of enactment of this Act and 180 days thereafter, the Secretary of State shall submit to the Committees on Appropriations a report on assistance provided by the United States for the training of Palestinian security forces, including detailed descriptions of the training, curriculum, and equipment provided; an assessment of the training and the performance of forces after training has been completed; and a description of the assistance that has been pledged and provided to Palestinian security forces by other donors: Provided, That not later than 90 days after the date of enactment of this Act, the Secretary of State shall report to the Committees on Appropriations, in classified form if necessary, on the security strategy of the Palestinian Authority.”
Incitement report: This provision requires the Secretary of State submit a report to Congress “detailing steps taken by the Palestinian Authority to counter incitement of violence against Israelis and to promote peace and coexistence with Israel.”
Sec. 7031 (l) Yemen
This subsection of the bill states that, “Funds appropriated under title III of this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs shall be made available for stabilization assistance for Yemen.” The JES further stipulates, “The agreement provides $40,000,000 under title III of the Act and prior Acts for stabilization assistance for Yemen, including for a contribution for United Nations stabilization and governance facilities, and to meet the needs of vulnerable populations, including women and girls.”
Sec. 7048: United Nations
>Part (b) prohibits funding expenses for expenses for any US delegation to anything having to do with any agency, body, or commission associated with the UN presided over by a country that the Secretary of State has determined, according to U.S. law, “supports international terrorism.” It also bars contributions to any agency, body, or commission associated with the UN presided over by a country that the Secretary of State has determined, according to U.S. law, is a government that “has repeatedly provided support for acts of international terrorism.” It also states that “The Secretary of State may waive the restriction in this subsection if the Secretary determines and reports to the Committees on Appropriations that to do so is important to the national interest of the United States, including a description of the national interest served.”
>Part (c) prohibits US funding in support of the UN’s Human Rights Council unless the Secretary of State determines and reports to Congress “that participation in the Council is important to the national interest of the United States” AND that the Council “is taking significant steps to remove Israel as a permanent agenda item and ensure integrity in the election of members to such Council.” That report must include “a description of the national interest served and the steps taken to remove Israel as a permanent agenda item and ensure integrity in the election of members to such Council.” In addition, the Secretary of State is required to report to Congress not later than September 30, 2020 “on the resolutions considered in the United Nations Human Rights Council during the previous 12 months, and on steps taken to remove Israel as a permanent agenda item and ensure integrity in the election of members to such Council.”
>Part (d) conditions funding to UNRWA (of which there is NONE in the bill) on the Secretary of State shall reporting to Congress, in writing, on whether UNRWA is meeting a laundry list of perennial requirements.
>Part (i), entitled “National Security Interest Withholding,” requires the Secretary of State to withhold 5% of all funds appropriated for any specialized agency or other entity of the United Nations “if the Secretary, in consultation with the United States Ambassador to the United Nations, determines and reports to the Committees on Appropriations that such agency or entity has taken an official action that is against the national security interest of the United States or an ally of the United States, including Israel.” Such funds may be released is the Secretary of State, in consultation with the United States Ambassador to the United determines and reports Congress “that such agency or entity is taking steps to address the action that resulted in the withholding of such funds”; in cases where such determination cannot be made, the funds may be reprogrammed for other purposes under the heading `Contributions to International Organizations’. Finally, the Secretary of State, following consultation with Congress, may waive the aid reduction altogether “if the Secretary determines that to do so in the national interest.”
Sec. 7049: War Crimes Tribunals
This section stipulates that no funds in this Act may be used for a U.S contribution to the International Criminal Court. It adds that funds “may be made available for technical assistance, training, assistance for victims, protection of witnesses, and law enforcement support related to international investigations, apprehensions, prosecutions, and adjudications of genocide, crimes against humanity, and war crimes” but clarifies that this does NOT apply “to investigations, apprehensions, or prosecutions of American service members and other United States citizens or nationals, or nationals of the North Atlantic Treaty Organization (NATO) or major non-NATO allies.”
Sec. 7050: Global Internet Freedom
This section earmarks funding for “for programs to implement the May 2011, International Strategy for Cyberspace, the Department of State International Cyberspace Policy Strategy required by section 402 of the Cybersecurity Act of 2015 (division N of Public Law 114-113), and the comprehensive strategy to promote Internet freedom and access to information in Iran, as required by section 414 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (22 U.S.C. 8754).”
Sec. 7051: Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
This section bars funds form this Act being used “to support or justify the use of torture and other cruel, inhuman, or degrading treatment or punishment by any official or contract employee of the United States Government” and states that funds may be used, in consultation with Congress, for assistance “to eliminate torture and other cruel, inhuman, or degrading treatment or punishment by foreign police, military or other security forces in countries receiving assistance from funds appropriated by this Act.”
Sec. 7060: Sector Allocations
Part (g), entitled “Reconciliation Programs,” states that “Of the funds appropriated by this Act under the heading ‘Development Assistance’, not less than $30,000,000 shall be made available to support people-to-people reconciliation programs which bring together individuals of different ethnic, religious, and political backgrounds from areas of civil strife and war, including between Israelis and Palestinians living in the West Bank and Gaza.”
======> IMPORTANT: The last clause of Part (g) underscores the problem of poor grammar and dangling modifiers. As in, is it talking about P2P between Israelis (living in sovereign Israel) and Palestinians (living in the West Bank)? Or is it talking about P2P between Israelis living in the West Bank (settlers) and Palestinians living in the West Bank? I am told it is intended to mean the former – i.e., this is not intended as Congressional approval and funding for programs with settlers – but, if that is the case, sloppy drafting as left this intent ambiguous and has opened the door for those who have other agendas.
Sec. 7065: Stabilization and Development in Regions Impacted by Extremism and Conflict
This section earmarks not less than $200 million “for the Relief and Recovery Fund for assistance for areas liberated or at risk from, or under the control of, the Islamic State of Iraq and Syria, other terrorist organizations, or violent extremist organizations, including for stabilization assistance for vulnerable ethnic and religious minority communities affected by conflict,” and $10 million “for programs to promote accountability for genocide, crimes against humanity, and war crimes, including in Iraq and Syria, which shall be in addition to any other funds made available by this Act for such purposes,” both subject to various provisos.
DIVISION J–FOREIGN POLICY
TITLE I–VENEZUELA ASSISTANCE
Sec. 164: Classified Briefing on Activities Of Certain Foreign Governments and Actors in Venezuela.
This section requires that not later than 90 days after the date of the enactment of this Act, “the Secretary of State, acting through the Bureau of Intelligence and Research of the Department of State, and in coordination with the Director of National Intelligence, shall provide a classified briefing to the appropriate congressional committees” covering a laundry list of matters, including, “the full extent of cooperation by the Government of the Russian Federation, the Government of the People’s Republic of China, the Government of Cuba, and the Government of Iran with the Maduro regime.”
TITLE II–EASTERN MEDITERRANEAN SECURITY AND ENERGY PARTNERSHIP
Entitled the “Eastern Mediterranean Security and Energy Partnership Act of 2019,” this title of the bill is a lengthy piece of legislation making it U.S. policy to (among other things) “continue to actively participate in the trilateral dialogue on energy, maritime security, cybersecurity and protection of critical infrastructure conducted among Israel, Greece, and Cyprus” and “to support diplomatic efforts with partners and allies to deepen energy security cooperation among Greece, Cyprus, and Israel and to encourage the private sector to make investments in energy infrastructure in the Eastern Mediterranean region.” It authorizes the US Government to “enter into cooperative agreements supporting and enhancing dialogue and planning involving international partnerships between the United States and Israel, Greece, and the Republic of Cyprus” and to establish “a joint United States-Eastern Mediterranean Energy Center in the United States…” It also requires a report on “Russian Federation Malign Influence in the Mediterranean” Press release from the American Jewish Committee (AJC) and the Hellenic American Leadership Council (HALC) applauding passage of the measure is here.
TITLE IX–OTHER MATTERS
SEC. 902: Declassification of Information Related to Certain Actions by Saudi Arabian Officials.
This section stipulates that “Not later than 30 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation, in coordination with the Director of National Intelligence, shall declassify, with any redactions necessary to protect intelligence sources and methods, any and all information related to whether the Government of Saudi Arabia materially assisted or facilitated any citizen or national of Saudi Arabia in departing from the United States while the citizen or national was awaiting trial or sentencing for a criminal offense committed in the United States.” [Note: this is language offered previously by Wyden (D-OR) as an amendment to the 2020 NDAA, related to this outrage in Oregon].
Sec. 903: Promoting Security and Justice for Victims of Terror (PS&JVT), aka, “the ATCA ‘fix’
This is the new section of law amending the Anti-Terrorism Clarification Act, which was signed into law last year and (as predicted) led to a cut-off of all US funding for the Palestinians, including security aid (the main beneficiary of which is Israel) and humanitarian assistance (because under ATCA, accepting such funding would have subjected the PLO/PA to the jurisdiction of US courts, paving the way for judgements against them designed to bankrupt them out of existence).
As covered in my 12/17 Twitter thread, PS&JVT tweaks ATCA to achieve two parallel, contradictory goals:
(1) to enable humanitarian & security aid to Palestinian to re-start, and
(2) to create a new-and-improved hook to enable lawfare orgs to sue the PLO/PA out of existence, with an escalation of what has become de facto U.S. policy of treating the Palestinian leadership and its official political bodies as terrorists – no different from any other non-state terrorist actor whose actions and existence the U.S. despises and seeks to undermine (to be clear, this policy is grounded in anti-terror laws passed in the pre-Oslo, designed to prevent any legitimization of the Palestinian cause; cemented with decades of legislation treating the PA/PLO as a terrorist-tolerating if not terrorist-supporting entities, designed to keep the PLO/PA in a perennial state of less-than-legitimate partner who bears all responsibility for failures of the peace process, any violence on the ground, etc); and capped by the Taylor Force Act, which effectively deems the PLO and PA, openly, entities that support terror) .
Let the Aid Flow! PS&JVT accomplishes the goal #1 by amending ATCA to delete the linkage between aid and jurisdiction of U.S. courts, as well as explicitly exempting aid flowing through NGOs as a hook for jurisdiction.
Let the PLO/PA Pay! PS&JVT accomplishes goal #2 by adding a new hook for jurisdiction: payments by the PLO/PA to any individual, or family of any individual, convicted of killing a US citizen. Under the law, if the PA/PLO engages in any such payments, it is automatically consenting to jurisdiction of US courts. This is an extension of the logic of the Taylor Force Act (TFA), in effect saying that the provision of support payments to people convicted of killing Americans is a form of PA/PLO complicity in the crime they committed, which under the logic of US anti-terror laws gives US courts jurisdiction over them.
International legal experts can (and no doubt will) weigh in regarding U.S. laws and role U.S. courts in dealing with people who murder U.S. citizens abroad. That is not the issue here. This is about not just trying to penalize the PA/PLO for supporting the families of people who killed an American citizen (families that did not commit a crime), which is the basis for the Taylor Fore Act, but trying to turning such support, in itself, into a pretext for the extension of extraterritorial U.S. sovereignty. This is, it appears, unprecedented in U.S. law. U.S. laws are designed to ensure that people who murder Amcits are brought to justice; I know of no case where such laws extend to asserting U.S. courts’ jurisdiction over a foreign government for its post facto treatment of families of murderers.
This new legal hook is almost certain to be tested in court very, very soon, as it is safe to assume that lawfare forces – which were reportedly directly engaged in crafting both ATCA and the ATCA “fix” – have already identified individuals/families that are current recipients of PLO/PA aid that, if it continues, will now trigger jurisdiction.
Bar the PLO/PA from the US: But wait there’s more! PS&JVT, notably, leaves in place the other ATCA trigger for jurisdiction, i.e., the part saying that if the PLO re-opens its office in the US under a waiver of the 1987 law that bans such operations, it is consenting to jurisdiction. This means that (assuming the PLO/PA hasn’t been bankrupted out of existence already, under the new hook described above), even if a president in the future wants to invite the Palestinians to re-open a mission of any kind in the U.S., they won’t be able to (without opening themselves up to lawsuits designed to…you know the rest).
Imposing US gag on the PLO/PA: But wait there’s more! PS&JVT adds yet another new hook for jurisdiction, intended to prevent Palestinian officials from being able to even make their case in the United States. Under PS&JVT, the “defendant” would be deemed to be consenting to the jurisdiction of US courts to (opening themselves up to lawsuits designed to yada yada yada) if they “conducts any activity while physically present in the United States on behalf of the Palestine Liberation Organization or the Palestinian Authority.” The text states that this gag does not apply ONLY with respect to “activity involving officials of the United States that the Secretary of State determines is in the national interest of the United States if the Secretary reports to the appropriate congressional committees annually on the use of the authority under this subparagraph”; and “any activity undertaken exclusively for the purpose of meetings with officials of the United States or other foreign governments, or participation in training and related activities funded or arranged by the United States Government,” and “activity related to legal representation” in matters related to resolving PS&JVT-related cases.
How broadly does this gag apply? The law defines the “defendant” as “(A) the Palestinian Authority; (B) the Palestine Liberation Organization; (C) any organization or other entity that is a successor to or affiliated with the Palestinian Authority or the Palestine Liberation Organization; or (D) any organization or other entity that–(i) is identified in subparagraph (A), (B), or (C); and (ii) self identifies as, holds itself out to be, or carries out conduct in the name of, the `State of Palestine’ or `Palestine’ in connection with official business of the United Nations.” [meaning that aside from official UN business, the Palestinian mission to the UN must say/do nothing in the US or it will trigger jurisdiction].
How broadly is PS&JVT intended to be applied? The text stipulates: “This section, and the amendments made by this section, should be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism.”