The bill in Congress that could make it a felony punishable by prison-time to advocate for boycott against Israel is causing a big splash in liberal and progressive waters. Numerous organizations have come out against the bill, including J Street, which warns against giving the Trump administration any power to “lock them up.”
Though there is also considerable confusion about just what the law would allow the government to do. The ACLU says that “simply requesting information about such boycotts” could expose a person to penalties. But Jewish Voice for Peace warns its followers not to let the bill chill their advocacy, because it “does not make it illegal for individual consumers to boycott Israeli or settlement products.”
Here are some of the responses. First, here is the full ACLU letter to Senators opposing the legislation.
July 17, 2017
RE: Oppose S. 720 – Israel Anti-Boycott Act
We write today in opposition to S. 720, also known as the Israel Anti-Boycott Act. We understand that proponents of the bill are seeking additional co-sponsors. We urge you to refrain from co-sponsoring the legislation because it would punish individuals for no reason other than their political beliefs. We also urge you to oppose the bill, whether in committee or on the floor, unless it has undergone significant revision to resolve its constitutional infirmities.
The bill seeks to expand the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 which, among other things, prohibit U.S. persons from complying with a foreign government’s request to boycott a country friendly to the U.S. The bill would amend those laws to bar U.S. persons from supporting boycotts against Israel, including its settlements in the Palestinian Occupied Territories, conducted by international governmental organizations, such as the United Nations and the European Union. It would also broaden the law to include penalties for simply requesting information about such boycotts.
Violations would be subject to a minimum civil penalty of $250,000 and a maximum criminal penalty of $ 1 million and 20 years in prison. We take no position for or against the effort to boycott Israel or any foreign country, for that matter. However, we do assert that the government cannot, consistent with the First Amendment, punish U.S. persons based solely on their expressed political beliefs.
This bill would impose civil and criminal punishment on individuals solely because of their political beliefs about Israel and its policies. There are millions of businesses and individuals who do no business with Israel, or with companies doing business there, for a number of reasons. Some, like those who would face serious financial penalties and jail time under the bill, actively avoid purchasing goods or services from companies that do business in Israel and the Palestinian Occupied Territories because of a political viewpoint opposed to Israeli policy.
Others may refrain from Israeli-related business based on political beliefs, but choose not to public ly announce their reasoning. Still others do no business with companies in Israel for purely pragmatic reasons. Under the bill, however, only a person whose lack of business ties to Israel is politically motivated would be subject to fines and imprisonment– even though there are many others who engage in the very same behavior. In short, the bill would punish businesses and individuals based solely on their point of view. Such a penalty is in direct violation of the First Amendment.
The ACLU has long supported laws prohibiting discrimination, but this bill cannot fairly be characterized as an anti-discrimination measure, as some would argue. For example, the Civil Rights Act of 1964 already prevents businesses from discriminating against customers based on
race, color, religion, and national origin. This bill, on the other hand, aims to punish people who support international boycotts that are meant to protest Israeli government policies, while leaving those who agree with Israeli government policies free from the threat of sanctions for engaging
in the exact same behavior. Whatever their merits, such boycotts rightly enjoy First Amendment protection.
By penalizing those who support international boycotts of Israel, S.720 seeks only to punish the exercise of constitutional rights. Accordingly, we urge you not to co-sponsor this bill and to oppose it when it comes before you either in Committee or on the floor. Please contact advisor on First Amendment issues Michael Macleod-Ball at 202.253.7589 if you have questions or comments about ACLU’s opposition to this legislation.
National Political Director
Democracy Now covered the legislation, and interviewed reporter Ryan Grim, who scooped the criminal element of the legislation at the Intercept. Grim notes the role of the Israel lobby group AIPAC and says that Democrats who supported the Iran deal are trying to compensate by supporting this bill! Exactly what Hillary Clinton did two years ago, supported the Iran deal but came out against BDS.
Grim: [A]s you said, it’s a huge priority of AIPAC, according to lawmakers I’ve spoken to, that this has been something that they’ve been working on hard over the last several months. It was introduced in March and has bipartisan support. On the Democratic side, one of the things that I picked up is that Democrats seem to—they took a lot of heat back at home when they—for the Democrats who did end up supporting the Iran deal, back under President Obama. And so, this, to a lot of them, seemed like a bit of a small wake-up call. I think the—I mean, a makeup call.
The reporter says the congresspeople didn’t understand the criminal component:
You know, the way that it was presented in the lobbying effort didn’t talk about the criminal penalties that were associated with violating this statute. And so, when our story came out and when the ACLU letter circulated this week, a lot of the people who had sponsored it were a bit surprised that they had actually backed something like this. They thought it was a rather simple kind of extension of a policy that had been in place for decades, merely extending it to the EU and the U.N. But, in fact, it comes with these—according to the ACLU, these draconian penalties. And so, I think you’re seeing a lot of them revisit it at this moment, now that there’s so much more public attention on it…
Grim explains that the criminal penalties are not explicit in the actual bill:
[T]he way that it’s written, you know, if you read the bill itself, the penalties aren’t mentioned. You have to reference an underlying statute that it amends, and then, once you get to the underlying statute, then you see the million-dollar fine and the 20-year prison sentence, which the ACLU says, because you’ve brought that underlying statute into play, that that criminal statute could be brought in by a judge or a prosecutor.
Rabbi Joseph Berman of Jewish Voice for Peace told Amy Goodman that AIPAC is not representative of American Jews:
[T]hey don’t speak for the Jewish community. Sometimes they might claim to, but they don’t. The Jewish community, Jews in the United States are incredibly diverse, and in many ways, and especially when it comes to relationships to and views on Israel, on Israel-Palestine. And so, they’re not representative of American Jews, even though they might have a lot of influence. And at the same time, they are able to move this forward. I think that it’s incumbent on us to have to provide a counterweight. We need to change the calculus for members of Congress so that they’re not going to support legislation like this
Here is an excerpt of J Street’s letter opposing the legislation, written to Congresspeople by Dylan Williams. Its greatest concern is that the bill makes no distinction between boycott of settlement products and BDS (J Street opposes the latter and takes no position on the former):
As you know, J Street has serious concerns with the “Israel Anti-Boycott Act” (S.720/H.R.1697) as written, which would undermine decades of US policy toward the Israeli-Palestinian conflict, bolster the settlement enterprise and harm the prospects for a two-state solution.
Williams provided J Street’s analysis of the bill that warns that Trump might try to lock up boycott advocates.
Beyond undermining longstanding US policy toward the settlements, S.720/H.R.1697’s massive expansion in the definition of boycotts against Israel in the context of the existing US
anti-boycott statute’s declaration of policy (50 USC §4602) creates a risk that individuals complying with or merely “furthering” or “supporting” a foreign country’s or international governmental organization’s boycott targeted exclusively at the settlements could be prosecuted for violating US anti-boycott laws (50 USC §4607) – a criminal offense. The penalties associated with these offenses are serious, potentially including substantial fines and prison time of up to 10 years (50 USC §4610).
While it would ultimately be up to the courts to decide whether someone was supporting a particular boycott by a foreign country or international governmental organization in violation of the modified US anti-boycott statute, this bill could give Attorney General Jeff Sessions the power to prosecute any American who chooses not to buy settlement products for a felony offense. That kind of authority should not be given to any administration, let alone one that has engaged in extreme rhetoric against political opponents, including threats to “lock [them] up.”
Here is part of the Jewish Voice for Peace statement on the legislation. “Take Action to Stop Unconstitutional Attack on Freedom to Boycott.” The statement urges supporters of boycott not to panic, they are not about to be jailed. It would seem to contradict the J Street analysis that the AG would have “the power to prosecute any American who chooses not to buy settlement products for a felony offense.”
What does the bill actually do?
The Israel Anti-Boycott Act (S. 720/ H.R. 1697) is the latest, and most extreme, of a series of unconstitutional anti-boycott legislation at both the federal and state level. The law aim to quell the movement for Palestinian rights by penalizing companies and individuals engaged in commerce for using the nonviolent tactics of boycott, divestment and sanctions to hold Israel accountable for violations of Palestinian rights. First introduced in March, this bill seeks to amend two laws – the Export Administration Act of 1979 and the Export-Import Bank Act of 1945 – to penalize companies that participate in boycotts, and to preempt efforts by international governmental organizations from complying with international law and calling for an end to trade with Israel’s settlements or companies that operate in the settlements. Of course, as the ACLU letter points out, millions of people and businesses do not do business with Israel for any number of reasons. This law would only punish those whose lack of business ties to Israel or the illegal settlements is based on their political beliefs — which is why it is discriminatory in addition to being a threat to free speech.
The bill opposes the creation of a database of Israeli settlement companies by the UN Human Rights Council and any efforts to boycott those companies’ products. The bill categorizes violations as felonies, and the potential penalties are steep: a minimum $250,000 civil penalty and a maximum criminal penalty of $1 million and 20 years imprisonment.
What doesn’t the bill do?
It does not make it illegal to support the Palestinian-led call for boycott, divestment and sanctions. It does not make it illegal for individual consumers to boycott Israeli or settlement products. While this legislation is horrible, it is important not to exaggerate the potential impacts of the legislation and add to the chilling effect against advocacy for Palestinian human rights.