Understanding the PLO Mission Crisis – Key Documents

Resource

November 20, 2017

Over the weekend new broke that the Trump Administration was closing the PLO mission in Washington, DC. To help people understand the laws that led up to this crisis, FMEP has compiled the relevant laws, below.

1. The 1987 Law that Started it All

In 1987, Congress passed legislation barring the PLO from operating in the United States (Sec. 1003 of PL 100-204; aka 22 USC 5202: Prohibitions regarding PLO). That section states:

It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof, on or after the effective date of this chapter-

(1) to receive anything of value except informational material from the PLO or any of its constituent groups, any successor thereto, or any agents thereof;

(2) to expend funds from the PLO or any of its constituent groups, any successor thereto, or any agents thereof; or

(3) notwithstanding any provision of law to the contrary, to establish or maintain an office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States at the behest or direction of, or with funds provided by the Palestine Liberation Organization or any of its constituent groups, any successor to any of those, or any agents thereof.

When President Ronald Reagan signed PL 100-204 into law on Dec. 27, 1987, he issued a signing statement declaring Sec. 1003 unconstitutional. He wrote:

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

2. The Middle East Peace Facilitation Act (1993-1997)

After the signing of the Olso Accords, Congress chose not to repeal 1003 of PL 100-204 (or any other anti-PLO legislation). It instead passed legislation giving the president authority to temporarily suspend key anti-PLO laws. That legislation was called the Middle East Peace Facilitation Act, PL 103-125, signed into law Oct. 28, 1993. This law permitted the establishment of the PLO mission in Washington in 1994.

Congress let MEFPA expire in 1997.

3. The Era of the National Security Waiver (1997-2011)

In 1997, Congress replaced the broad suspension authority granted to the president in MEPFA with a waiver provision – specific to 1003 of PL 100-204 – quietly inserted into the FY98 Foreign Operations Appropriations Act (Sec. 539d of PL 105–118, signed into law on Nov. 26, 1997). This provision read:

(2) PERIOD OF APPLICATION OF WAIVER.—Any waiver pursuant to paragraph (1) shall be effective for no more than a period of six months at a time and shall not apply beyond twelve months after enactment of this Act.

Congress included a similar waiver in annual Foreign Operations legislation every year from 1997-2011.

4. Conditioning the Waiver on Palestinian Actions at the UN

In 2011, the Palestinians were admitted as members in UNESCO. In response, in the FY12 Foreign Operations Appropriations Act (PL 112–74, signed into law on Dec. 23, 2011), Congress deleted the national security waiver of the 1987 law, and replaced it with a waiver conditioned on the president certifying that the Palestinians not being admitted to any additional UN agencies. According to the provision, if the president cannot make the certification, he must wait at least 90 days (during which it would be illegal for the mission to remain open), and then he can waive the 1987 ban if, and only if, he can certify that the Palestinians have entered into “direct and meaningful negotiation with Israel.”

The provision – Sec. 7086(b) of that bill – reads in full:

(1) The President may waive the provisions of section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have not, after the date of enactment of this Act, 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.

(2) Not less than 90 days after the President is unable to make the certification pursuant to subsection (b)(1), the President may waive section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have entered into direct and meaningful negotiation with Israel: Provided, That any waiver of the provisions of section 1003 of Public Law 100–204 under paragraph (1) of this subsection or under previous provisions of law must expire before the waiver under the preceding sentence may be exercised.

(3) Any waiver pursuant to this subsection shall be effective for no more than a period of 6 months at a time and shall not apply beyond 12 months after the enactment of this Act.

At the time it was being considered and passed, this new provision was highlighted as ” ********IMPORTANT************” and explained in detail, repeatedly, in my weekly Legislative Round-Up, including in the editions published July 29, 2011 and October 4, 2011.

5. Conditioning the Waiver on Palestinian Actions at the UN + on Palestinian Actions at the ICC

In 2015, the Palestinians joined the International Criminal Court (ICC), sparking consternation and concern in Israel and among supporters of Israel in Congress. In response, in the FY16 Consolidated Appropriations Bill (PL 114–113, signed into law Dec. 18, 2015) [which included the FY16 Foreign Operations Appropriations Act], Congress imposed an additional condition that the president must satisfy in order to waive the 1987 law, requiring that he certify that the Palestinians are not promoting, supporting, or endorsing action against Israel at the ICC. Like the previous UN-only version of the waiver language, according to the provision, if the president cannot make either certification (regarding the UN or the ICC), he must wait at least 90 days (during which it would be illegal for the mission to remain open), and then he can waive the 1987 ban if, and only if, he can certify that the Palestinians have entered into “direct and meaningful negotiation with Israel.”

The relevant provision, Sec. 7041(j)(2)(B), reads in full:

(i) The President may waive the provisions of section 1003 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (Public Law 100–204) if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the appropriate congressional committees 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) taken any action with respect to the ICC that is intended to influence a determination by the ICC to initiate a judicially authorized investigation, or to actively support such an investigation, that subjects Israeli nationals to an investigation for alleged crimes against Palestinians.

(ii) Not less than 90 days after the President is unable to make the certification pursuant to clause (i) of this subparagraph, the President may waive section 1003 of Public Law 100–204 if the President determines and certifies in writing to the Speaker of the House of Representatives, the President pro tempore of the Senate, and the Committees on Appropriations that the Palestinians have entered into direct and meaningful negotiations with Israel: Provided, That any waiver of the provisions of section 1003 of Public Law 100–204 under clause (i) of this subparagraph or under previous provisions of law must expire before the waiver under the preceding sentence may be exercised.

(iii) Any waiver pursuant to this subparagraph shall be effective for no more than a period of 6 months at a time and shall not apply beyond 12 months after the enactment of this Act.