Anti-BDS Section of Trade Bill in Danger of Non-Enforcement


The anti-BDS legislation inserted into the fast-track trade bill won’t be implemented, according to an Obama administration spokesperson.

Lawmakers are weighing their options following the announcement by the Obama administration that it will not enforce a provision in a recently signed trade bill that combats boycott efforts of Israel when it comes to settlements beyond the green line.

In a statement released last week, State Department spokesperson John Kirby said: “By conflating Israel and ‘Israeli-controlled territories,’ a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity.”

Sens. Ben Cardin (D-Md.) and Rob Portman (R-Ohio) and Reps. Peter Roskam (R-Ill.) and Juan Vargas (D-Calif.) drafted the original language that made discouraging boycotts of Israel a principal negotiating objective. The trade bill defines “persons doing business in Israel or in Israeli-controlled territories” as illegitimate targets for politically motivated boycott, divestment and sanction efforts by states and related actors.

The State Department issued its statement June 30, one day after TPA, as the legislation is known, was signed into law by President Obama.

“The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them,” Kirby continued.

When pressed as to whether the administration’s objection is tantamount to approval of boycotts of Israeli settlements in the West Bank, land the Palestinians claim for a future state, Kirby reiterated the administration’s opposition to boycotts of the State of Israel and stated that U.S. policy has not changed in regards to activity beyond the 1967 lines.

Kirby further stated that the administration made their objections known during the bill’s drafting process, a claim Roskam’s office disputed.

“No, the administration at no point throughout countless meetings, phone calls,and emails expressed any concerns with the language it now claims is objectionable,” said Roskam’s press secretary, Michael Shapiro, via email. “In fact, USTR publicly supported the amendment at the Ways and Means Committee’s TPA markup in April.‎”

Sue Walitsky, spokesperson for Cardin, said via email, “The provision was never intended to make a judgment on settlements. Senator Cardin has said throughout this debate that ‘Israel is one of America’s closest allies and the only stable democracy in the Middle East. We may not agree with every Israeli policy, but we cannot allow our potential trading partners in the EU to fall prey to efforts that threaten Israel’s existence. Issues, including borders and settlements, need to be resolved in direct negotiations between the Israelis and Palestinians.’”

Liberal pro-Israel groups, such as J Street and Americans for Peace Now, which oppose boycotts of Israel but do not support settlement activity, praised the State Department’s message.

“We welcome the State Department’s statement that U.S. policy regarding settlements remains unchanged,” said APN director of policy and government relations Lara Friedman in a statement. “These efforts seek to exploit concerns about boycotts, divestment and sanctions (BDS) targeting Israel — concerns APN shares — as cover for legislation the true purpose and effect of which are to protect and promote settlements.”

As they did prior to TPA’s approval, J Street launched another email campaign urging their supporters to “alert their lawmakers to this effort now underway to blur the green line legislatively,” said Dylan Williams, vice president of government affairs for the self-described pro-Israel, pro-peace organization.

“The language used in the resolution, which passed several statehouses, is nearly identical to the language that was used in the trade bills,” said Williams. “This suggests a concerted effort to conflate Israel and the territories it controls and to put the United States and state governments in [the position of] defending, supporting and legitimizing illegal settlement activity.”

He further stated that unnamed members of Congress “raised the possibility of removing” the language the administration found objectionable prior to the full vote on TPA and that “groups supporting it, like AIPAC, specifically dissuaded them from doing so.”

When reached for comment, a spokesperson for the American Israel Public Affairs Committee referred back to the original amendment authors Cardin, Portman and Roskam.

“Yes, J Street tried to find a member to offer an amendment to strip out that language,” said Shapiro. “Obviously they were unsuccessful.”

The Zionist Organization of America, which joined AIPAC and other pro-Israel groups in lobbying for the original anti-BDS amendment to the TPA legislation, quickly criticized Obama’s administration for “aiding [the] BDS campaign against Jewish businesses in Judea/Samaria.”

“With this act, the Obama Administration has disgracefully and deceitfully joined the BDS movement and it deserves the strongest criticism from all pro-Israel groups and citizens,” said Morton Klein, ZOA national president, in a statement.

Citing the Constitution, Klein said, “The Obama Administration cannot ignore Congressional legislation and apply only those parts of the legislation it likes.”

Article 1, Section 8 of the U.S. Constitution gives authority to Congress to “regulate commerce with foreign nations.” In practice, Congress, by passing the fast-track authority, delegates the responsibility of negotiating to the executive branch. The Office of the United States Trade Representative is charged with negotiating in good faith to achieve the objectives outlined by Congress — a charge easier said than done, according to a former official with the USTR who had been involved with previous trade negotiations.

There’s an understanding, the official, speaking on background, said, going into negotiations that not every objective can be met and thus wiggle room is usually afforded.

“They’re objectives, they’re not binding,” explained the former official. “What is binding is the actual text of the agreement and the legislation that ultimately implements the agreement. That’s where you’ll see how the provision is or isn’t implemented.”

Though Congress will vote up or down on a final agreement and cannot amend the bill once it goes to a full vote, members of Congress do have influence over what the final bill will look like.

Explained the official, during the NAFTA and Uruguay Round Agreements, USTR presented a draft of the bill to certain congressional committees, which then conducted unofficial markups and sent the legislation back to USTR for adjustment. (“We called it a non-markup of a non-bill since it’s not official,” said the official, who added there is “full-fledged backing-and-forthing” in the non-markup process.)

Members of Congress who are displeased with how the executive branch negotiated the trade agreement can exert a lot of pressure during the non-markup process, said the official, “but at the end of the day, this provision is traded off against” other provisions that Congress wants.

As for the language proponents, they will continue to press for enforcement.

Said Shapiro, “We are considering all options to ensure the Administration complies with provisions it previously supported and signed into law [last] week.”


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