Opposition to Palestinian rights shaped U.S. anti-terror laws

Since Israel’s brutal assault on Gaza began last October we’ve seen a vast crackdown on Palestine activism across college campuses and workplaces, with some organizations and lawmakers pushing for anti-terrorism laws to be implemented against critics of Israel.

This isn’t a new development for the United States. Last month, Palestine Legal and the Center for Constitutional Rights published a report on the history of the U.S. anti-terrorism law that reveals how opposition to Palestinian rights helped shape them from their foundation.

“Understanding the ways that Israel and its allies have shaped anti-terrorism laws is essential to challenging their use today as a weapon to shut down both humanitarian lifelines to Gaza in furtherance of this genocide, and the movement in the U.S. that is trying to stop it,” said Palestine Legal Director Dima Khalidi in a statement on the report’s release. “This briefing paper is a first step toward interrogating this entire regime that has served to undermine fundamental constitutional rights as it has been exploited to criminalize opposition to Israel’s 75 years of oppression of Palestinians.”

Mondoweiss U.S. correspondent Michael Arria spoke with Darryl Li, Assistant Professor of Anthropology and Lecturer in Law at the University of Chicago and principal author of the report on his findings.

Mondoweiss: This report really gets to the foundations of anti-terrorism law in the United States. This is decades before the “War on Terror.” Can you talk about that early history?

Li: This report, as you mentioned, reaches far back to the origins of the United States anti-terrorism legal regime. Part of what we’re doing is recovering some history that’s a bit lost by more recent events. I think there’s a post-9/11 effect where folks have really read terrorism law and terrorism policy through the lens of the so-called global “War on Terror” and its broad anti-Muslim agenda.

This report reminds us that the foundation of these laws was, more specifically, targeting the Palestinian liberation movement. I want to be clear: the argument here is not simply that the United States government used terrorism law to suppress Palestinians. It is that many of the key developments of terrorism law were explicitly written with Palestine in mind and specifically with crushing the PLO [Palestine Liberation Organization].

We can go all the way back to the first time the word terrorism even appears in a federal statute which is a 1969 law, that is very relevant today. It attempts to restrict any U.S. aid to UNRWA [The United Nations Relief and Works Agency for Palestine Refugees] if the aid is reaching people who have “acts of international terrorism” or have received training from the Palestine Liberation Army, which is the military arm of the PLO. So what we see very clearly is that there is a pattern of making the terms terrorism and Palestine essentially synonymous.

The report then goes through the major pillars of the terrorism or anti-terrorism legal regime pre-9/11. So, for example, there’s the list of state sponsors of international terrorism, which is one of the key aspects of U.S. foreign policy towards the Middle East. This was passed by people in Congress, many of whom were ardent Zionists, most prominently New York Senator Jacob Javits. That policy was created essentially as a way of stigmatizing and disciplining states that were seen as too sympathetic to the Palestinian revolution.

It’s no accident that six of the eight countries that have ever been on this list have been countries that were um that were in the MENA [Middle East and North Africa] region. One of the major conditions for Sudan getting off the terrorism list several years ago was their establishment of diplomatic relations with Israel in 1987.

The first and only time Congress has declared a group to be a terrorist organization was in a law that explicitly targeted the PLO. The first time Congress passed a law allowing private lawsuits for international terrorism again. That was in response to the 1985 Achille Lauro incident.

The members of Congress who talked about this law on the floor of the Senate and the House were very explicit that the goal of the law was to target the PLO. Actually, a large percentage, if not the majority, of terrorism civil lawsuits are filed by joint U.S./Israeli nationals for incidents that arise in Palestine.

I should be clear here. Folks should be aware that there isn’t just one terrorism list. There are many and they all serve different kinds of functions in the bureaucracy. So, the first list of terrorist organizations that had legal consequences and led to the freezing of finances. This came in 1995, and this list was promulgated by the Clinton Administration explicitly as an effort to help crush Palestinian opposition to the Oslo process. The title of the executive order said targeting groups that are “a threat to the Middle East peace process.” It was a bunch of Palestinian factions, Hezbollah, and two armed opposition groups in Egypt because Egypt was a close ally of Israel and the U.S., a sponsor of the Oslo Process. They needed them on there for the appearance of balance. In fact, one Israeli Zionist organization was put on the list. It’s funny. There were actually two groups that were put on the list, but it was actually different names for the same group, which I think gives you a sense of how much attention they were actually paying to [Israeli terrorism.]

It’s interesting. The first time that Al-Qaeda was put on a U.S. terrorism list, it was simply added to this list of groups that were against Oslo. It was the mid-90s, and there wasn’t the same kind of elaborate infrastructure of terrorism lists that we saw after 9/11.

The other key development is a law that criminalizes so-called “material support to terrorist organizations.” That’s the most commonly used charge in terrorism criminal cases. It was passed in 1996, again very much with Palestine in mind, very much pushed by Zionist groups such as the ADL [Anti-Defamation League], who exploited the outrage following the bombing of the federal building in Oklahoma City.

Of course, the bombing was carried out by U.S. domestic white nationalists, but groups used it as an opportunity to railroad through their legislative agenda of targeting Palestinian diaspora organizing and Palestine solidarity organizing in the United States. So those are some of the key highlights of the major terrorism laws that were that were motivated by opposition to Palestine.

One of the things that’s unfortunate, there was this turn to these other forms of state violence that were a lot more spectacular and attention-grabbing, so things like legalizing torture, Guantanamo, the rendition policy, drone killings, and so on. A lot of the liberal pushback has emphasized the idea that “we need to go back to the rule of law.” This report really shows that the baseline so-called “normal rules,” like democratically passed laws, are irremediably tainted by a kind of anti-Palestinian animus.

In recent weeks, we’ve seen Republican politicians call for Palestinians to be deported. Trump says he’ll deport immigrants who “support Hamas” if re-elected. Can you talk about how these anti-terrorism laws have impacted the United States’s immigration policy?

The first time terrorism even enters immigration law was in 1991. One of the definitions of terrorism activity is being an officer or spokesman for the PLO. So again, another example, written very clearly in the law, where Palestinian activism is more or less equated with terrorist activity. So, as you know, after 9/11, terrorism becomes a massive, massive part of the immigration enforcement apparatus. We see indefinite detention and deportation of people on all sorts of grounds, but again, it really starts with the reference to Palestine in immigration law.

Since October we’ve seen this kind of a growing McCarthyism within the country when it comes to this issue. We’ve seen student groups suspended, people losing their jobs over their support for Palestine. As someone who has studied this history closely, what’s stood out to you in recent months?

I think the level of elite panic over the unprecedented growth in Palestine solidarity and Palestinian organizing is really evident. It’s a four-alarm fire. I think there are a lot of people in charge who are actually quite concerned about the level of mobilization that’s happening for Palestine, and they are resorting to the old toolkit.

So, for me, what’s been striking post-October 7 is the continuity. This is a very much hyped-up version of what we’ve seen in the past. The other thing that’s a bit bizarre, of course, is that we’ve already been living under decades of repressive anti-terrorism legislation, right? I think it’s actually quite difficult for some of these Zionist groups to find anyone they can plausibly throw legal accusations at because people have already been policing themselves to avoid problems with the law.

One of the messages that I think is really important for the movement to understand is that proposals that don’t get formally passed into law but still sort of circulate in the air can have really important and harmful effects.

So, in Congress, we’ve seen this incentive structure, a sort of race to the bottom of racist grandstanding against Palestinians. That’s actually existed for decades, and there’s no downside for most people in Congress to come up with increasingly wild and disturbing legislative proposals. And even if 90% of them don’t pass they still kind of shape the position of the Overton Window.

So what I tell people is, you have to pay attention to these really outlandish and extreme proposals but don’t take your eye off the ball in terms of other ideas that might seem a little more moderate in comparison.

You mentioned the role of pro-Israel groups in all this history, specifically the ADL. In recent months, we’ve seen that organization call for student groups to be investigated by the FBI for allegedly breaking terrorism laws. Are you seeing a lot of the same kinds of players and organizations at work this time around?

Yes think the big ones are the familiar characters, like the ADL.

What’s interesting is that there is an ecosystem of smaller organizations that exist who are also conducting kind of Zionist lawfare in the United States. So groups that maybe people aren’t as familiar with would include Zachor Legal Institute, which is a more right-wing organization. There’s the Brandeis Center, which is really focused on attacks on higher education. There’s the Zionist Advocacy Center, which is basically a one-man group going after humanitarian organizations.

I think we have to understand the symbiotic nature of some of these smaller, more fly-by-night operations to the more established mainstream groups like the ADL. I think they’re both playing an important role in this. The ADL obviously has this legacy credibility and platform, so when they do things like call on university presidents to investigate SJP [Students for Justice in Palestine] chapters for material support for terrorism? On one hand, that’s an insane and unconstitutional demand, but on the other hand, it creates space, and it shifts the political conversation in a way that really slants things against these student activists. It also gives oxygen to these smaller groups that maybe are willing to go further than the ADL.

A group like Zachor spends its time writing to internet companies like PayPal to try to get Palestine organizers kicked off of financial intermediation platforms. They’ll accuse groups of being domestic terrorist affiliates of foreign terrorist organizations. So, foreign terrorist organization is a category in the law that we have thanks in part to the ADL. “Domestic terrorist affiliate” is not a phrase that exists in the law. It’s a phrase that groups like Zachor keep using because they want it to resonate in the public discussion.

You conjure up these phrases in these categories, you circulate them, you try to get other people to adapt them, and you try to create a new reality where that becomes a legible category that eventually might find itself into the law and formally written into legislation. Groups like Zachor have gone around accusing groups like Black Lives Matter chapters and SJP of being domestic terrorist affiliates of foreign terrorist organizations. As I said, it’s not a real legal category, but I think their philosophy is if they say it loudly and often enough, people will start reacting to it as if it is a legal category, and maybe at one point down the line it will be written into law.

So, there’s the big fish and the little fish and they’re all kind of operating together in this sort of ecosystem.

Your report ends with recommendations for decision makers. Can you tell me about some of those?

The recommendations are pitched at a pretty broad level because they’re directed at different kinds of decision makers who have different authorities.

I think one common baseline is that we really need to mainstream and normalize the idea that the ADL cannot be taken seriously as a civil rights organization. This is consistent with long-running campaigns like hashtag #DroptheADL. We need decision makers to really understand the ADL as a Zionist advocacy organization or even as a hate group first and foremost and not treat them as credible interlocutors on any issue concerning civil rights, human rights, or even antisemitism.

The other thing we want to do with the report, is to not only caution people against the possible expansion of these terrorism laws but really start building a broader argument. To rollback or potentially abolish anti-terrorism laws as well. I don’t know if we’re quite there yet because I think the movement conversation is still developing.

Then, outside the movement there’s a lot of work that needs to happen. I think looking at ways of significantly curtailing and narrowing these laws, especially the material support statute, or abolishing them altogether are things that we really need to be working towards in the medium to long term.