Published by The Lawfare Institute
in Cooperation With
Editor’s Note: This article originally appeared on Order from Chaos.
In recent days, President Trump’s son-in-law and senior advisor, Jared Kushner, has revealed certain key aspects of the long-touted White House Israeli-Palestinian peace plan that he and other senior administration officials say they will launch sometime after the April 9 elections in Israel. In normal times, these would be headlines. But America is currently so consumed with the Mueller investigation and the president’s declaration of a national emergency to fund his border wall that it is hard to find the bandwidth to discuss anything else.
The plan is said to be based on four principles—freedom, respect, security, and opportunity—with one key goal being “developing infrastructure” for “tremendous growth in … the West Bank and Gaza.”
The price tag for these investments, meanwhile, is reported to be in the tens of billions of dollars—a substantial sum, particularly for an administration that has slashed U.S. foreign assistance across the board and especially to the Palestinians. No doubt this is why Kushner and other senior administration officials are currently touring the Arab Gulf states: not just to “share … some of the details … especially on the economic vision” with leaders there, as Kushner described, but to ask them to foot most if not all of the bill.
This desire to shift financial burdens to allies is a recurring theme for the Trump administration, which has adopted a similar tack in situations ranging from the counter-ISIS campaign in Syria to the proposed U.S.-Mexico border wall. But it has often proven more fantasy than reality. Even where allies are willing to make a substantial contribution, they generally want the United States to also have skin in the game. And refusing to do so can leave the United States with limited leverage over how the policy in question is actually implemented.
For this reason, if it wishes to see its peace plan succeed, the Trump administration will likely have to provide some form of direct foreign assistance to the Palestinians. At present, however, it would likely find that this is easier said than done, as two newly enacted pieces of legislation—the Taylor Force Act and the Anti-Terrorism Clarification Act (ATCA)—substantially restrict the president’s ability to do so.
Enacted in March 2018, the Taylor Force Act prohibits the United States from providing any foreign assistance to the Palestinian Authority under Economic Support Fund (ESF) authorities—an authority used for a diverse range of foreign assistance programs—unless the Palestinian Authority stops providing payments to the families of Palestinians involved in terrorist attacks against Israel. Thus far, the Palestinian Authority has refused to take this step, leaving this restriction in place. That said, certain ESF-based foreign assistance is exempted from this limitation, including funds used to support projects relating to wastewater disposal, children’s vaccinations, and the East Jerusalem Hospital Network.
The ATCA, which became law in October 2018, is even more restrictive in its effect. It makes any entity that accepts foreign assistance under ESF or two other sets of security-related assistance authorities—International Narcotics and Law Enforcement (INCLE) authorities and Nonproliferation, Anti-terrorism, Demining, and Related Programs (NADR) authorities—subject to the jurisdiction of U.S. courts for various terrorism-related civil claims. For the Palestinian Authority, the potential financial exposure from such litigation—in just one case, for example, it’s already been found liable for more than $650 million—has proven too costly to accept. Instead, it has foresworn all three types of foreign assistance altogether, and even gone so far as to require private entities within the West Bank to do the same for fear that their actions will be enough to trigger the ATCA’s application. As these were the three primary authorities used to provide bilateral foreign assistance to the Palestinians, this has effectively ended U.S. foreign assistance to the West Bank. As a result, the United States recently closed the USAID mission there.
For the moment, these limitations mean little to the Trump administration, which began severely slashing the levels of U.S. foreign assistance to the Palestinians even before the ATCA entered into force. Combined with moves such as shuttering the Palestinians’ office in Washington, D.C., and shutting down the U.S. Consulate General in Jerusalem, these measures appear to be intended to pressure the Palestinians into coming back to the negotiating table and accepting the Trump administration’s peace plan. But if the Palestinian leadership does eventually prove willing to engage, the Trump administration will need to be able to provide them with incentives to move the peace deal along. And unless Congress changes these laws, the Trump administration most likely won’t be able to use U.S. foreign assistance for this purpose.
So how should the White House and Congress prepare for the possibility that Israeli-Palestinian negotiations move forward? They have two options, which aren’t mutually exclusive.
First, Congress could amend the ATCA and Taylor Force Act to provide the president with the authority to waive restrictions on certain types of foreign assistance. This would leave the laws in place but allow the United States to continue to provide the Palestinians with at least some types of foreign assistance. Of course, this waiver authority would need to be broad enough to allow the Trump administration to adequately incentivize the Palestinians and match contributions from allies. For this reason, it would most likely need to extend past INCLE funds—the focus of current reform efforts, due to their role in supporting Israeli-Palestinian security assistance—to include ESF funds, as the latter may be used to provide a more diverse array of assistance.
Second, Congress could start over and establish a new legal mechanism through which the United States can assist the Palestinian Authority without using ESF, INCLE, or NADR authorities. Last year, a bipartisan coalition of legislators introduced just such a mechanism in the form of the Palestinian Partnership Fund which would have combined substantial U.S. seed money with outside contributions to provide a fund capable of supporting the growth of the Palestinian economy and other objectives—all without relying on the U.S. foreign assistance authorities that trigger ATCA. Passing a similar vehicle this year would be a wise step.
We do not yet know the details of the White House’s peace plan. If it is launched, however, the United States will need some means of contributing to efforts to boost the Palestinian economy, among other objectives. Love or hate the Trump administration, Congress should work with it to establish such a vehicle so that U.S. efforts at promoting peace can have at least some chance of success—if not under this administration, then under a future one.