BDS, Trade, and Congress

A number of countries, including the United States, recently agreed on the terms of a trade agreement that will now go before Congress for consideration and possible ratification. This agreement, known as the Trans-Pacific Partnership, while separate from another trade agreement that was ratified by Congress earlier this year (the so-called “Trade Promotion Authority”), should be considered by Congress in light of steps taken by the State Department shortly after the finalization of the Trade Promotion Authority.

The Trade Promotion Authority included specific provisions that required the United States to avoid support for anti-Israel boycotts (including those promoted by the “BDS movement”).  Representative Peter Roskam was the author of the Trade Promotion Authority’s language on boycotts and his support for the Trade Promotion Authority was conditioned upon that anti-boycott language being in the trade agreement. Many other members of Congress expressed similar thoughts about the anti-boycott language being key to their support for the Trade Promotion Authority. It is fair to say that without the language prohibiting U.S. support of BDS activity, the Trade Promotion Authority likely would not have been ratified by Congress.

In an affront to Congress days after the Trade Promotion Authority was ratified, the State Department disclaimed the provisions of the Trade Promotion Authority that relate to boycotts focused on certain territories under Israeli control. 

The following is from the State Department’s Press Office, dated June 30, 2015: 

[B]y 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. Every U.S. administration since 1967 -- Democrat and Republican alike -- has opposed Israeli settlement activity beyond the 1967 lines. This Administration is no different. 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.

The bill originally introduced in Congress by Representative Roskam that became the Trade Promotion Authority’s anti-boycott language clearly made no distinctions between boycotts of commercial activity within the borders of the State of Israel and boycotts of commercial activity in territories under the control of Israel; in fact, the bill explicitly defined prohibited boycotts as follows:                             

[t]he term ‘‘boycott, divestment from, and sanctions against Israel’’ means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.

The final text of the Trade Promotion Authority law had a definition that is substantially similar to Representative Roskam’s definition:

[the] term “actions to boycott, divest from, or sanction Israel” means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.

Representative Roskam’s bill was introduced with enumerated policy statements opposing the BDS movement and his public statement upon the signing of the Trade Promotion Authority legislation by President Obama reiterated this objective. To wit, he noted that

[The Trade Promotion Authority legislation] is an historic milestone in the fight against Israel's enemies, as American opposition to insidious efforts to demonize and isolate the Jewish state is now the law of the land. The bipartisan bill enacted today conditions any free trade agreement with the European Union on its rejection of BDS.

Thus, it is difficult to reconcile the State Department’s rejection of the unambiguous language of the law and the clearly expressed intent of Congress in approving the legislation. 

While the State Department’s role in enforcing anti-boycott provisions of the Trade Promotion Act is unclear (to be charitable), we are all aware of the expansive role this administration has claimed in having “prosecutorial discretion” with regard to non-enforcement of laws (or elements of laws) that are not in line with the president’s agenda. There is a very real possibility that the executive branch may take action that undermines parts or all of the anti-boycott provisions of the Trade Promotion Authority law, even if the law grants that branch no such authority.

It is now important for Congress to respond to the State Department’s repudiation of the clear language of the Trade Promotion Authority. Congress can do this by refusing to ratify the Trans-Pacific Partnership unless and until the State Department rescinds its statement from June 30, 2015 regarding anti-Israel boycotts and replaces it with a clear affirmation that the policy of the United States has been and continues to be absolute rejection of all commercial boycotts directed at Israel, without regard to the territorial aspects of such boycotts.

This repudiation of anti-Israel boycott activity would be in keeping with longstanding policy and law. I detailed the illegality of the BDS movement’s boycott activity in a paper titled “The BDS Movement: That Which We Call a Foreign Boycott, By Any Other Name, Is Still Illegal”. My paper was cited by the Supreme Court of Israel in its recent decision upholding a domestic anti-boycott law.

While the State Department noted that U.S. policy has never sought to legitimize Israeli settlement activity, U.S. policy has also clearly rejected any foreign intervention in shaping and implementing foreign policy goals. So while the U.S. may not approve of settlement activity, it also doesn’t approve of foreign boycotts against Israel. The State Department’s new position, however, upends this longstanding doctrine by implicitly approving of BDS activity that is directed at Israeli controlled territory. Since BDS, as a movement, is committed to the destruction of Israel and doesn’t differentiate between Israel and the territories, anything that supports BDS has the effect of supporting attacks on Israel’s right to exist as a state.

Furthermore, since the Trade Promotion Authority only obligates Congress to undertake an expedited up or down vote on trade agreements presented by the president, Congress will continue to have the power to vote down any and all trade agreements presented under Trade Promotion Authority for so long as the Executive branch refuses to execute (or otherwise interferes with) the anti-boycott provisions thereof. 

Making it clear to President Obama that Congress will hold up any and all trade agreements if he obstructs the anti-boycott provisions of the law would be a powerful, effective, and ongoing check on any executive branch attempts to legitimize anti-Israel boycotts.  

A number of countries, including the United States, recently agreed on the terms of a trade agreement that will now go before Congress for consideration and possible ratification. This agreement, known as the Trans-Pacific Partnership, while separate from another trade agreement that was ratified by Congress earlier this year (the so-called “Trade Promotion Authority”), should be considered by Congress in light of steps taken by the State Department shortly after the finalization of the Trade Promotion Authority.

The Trade Promotion Authority included specific provisions that required the United States to avoid support for anti-Israel boycotts (including those promoted by the “BDS movement”).  Representative Peter Roskam was the author of the Trade Promotion Authority’s language on boycotts and his support for the Trade Promotion Authority was conditioned upon that anti-boycott language being in the trade agreement. Many other members of Congress expressed similar thoughts about the anti-boycott language being key to their support for the Trade Promotion Authority. It is fair to say that without the language prohibiting U.S. support of BDS activity, the Trade Promotion Authority likely would not have been ratified by Congress.

In an affront to Congress days after the Trade Promotion Authority was ratified, the State Department disclaimed the provisions of the Trade Promotion Authority that relate to boycotts focused on certain territories under Israeli control. 

The following is from the State Department’s Press Office, dated June 30, 2015: 

[B]y 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. Every U.S. administration since 1967 -- Democrat and Republican alike -- has opposed Israeli settlement activity beyond the 1967 lines. This Administration is no different. 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.

The bill originally introduced in Congress by Representative Roskam that became the Trade Promotion Authority’s anti-boycott language clearly made no distinctions between boycotts of commercial activity within the borders of the State of Israel and boycotts of commercial activity in territories under the control of Israel; in fact, the bill explicitly defined prohibited boycotts as follows:                             

[t]he term ‘‘boycott, divestment from, and sanctions against Israel’’ means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.

The final text of the Trade Promotion Authority law had a definition that is substantially similar to Representative Roskam’s definition:

[the] term “actions to boycott, divest from, or sanction Israel” means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.

Representative Roskam’s bill was introduced with enumerated policy statements opposing the BDS movement and his public statement upon the signing of the Trade Promotion Authority legislation by President Obama reiterated this objective. To wit, he noted that

[The Trade Promotion Authority legislation] is an historic milestone in the fight against Israel's enemies, as American opposition to insidious efforts to demonize and isolate the Jewish state is now the law of the land. The bipartisan bill enacted today conditions any free trade agreement with the European Union on its rejection of BDS.

Thus, it is difficult to reconcile the State Department’s rejection of the unambiguous language of the law and the clearly expressed intent of Congress in approving the legislation. 

While the State Department’s role in enforcing anti-boycott provisions of the Trade Promotion Act is unclear (to be charitable), we are all aware of the expansive role this administration has claimed in having “prosecutorial discretion” with regard to non-enforcement of laws (or elements of laws) that are not in line with the president’s agenda. There is a very real possibility that the executive branch may take action that undermines parts or all of the anti-boycott provisions of the Trade Promotion Authority law, even if the law grants that branch no such authority.

It is now important for Congress to respond to the State Department’s repudiation of the clear language of the Trade Promotion Authority. Congress can do this by refusing to ratify the Trans-Pacific Partnership unless and until the State Department rescinds its statement from June 30, 2015 regarding anti-Israel boycotts and replaces it with a clear affirmation that the policy of the United States has been and continues to be absolute rejection of all commercial boycotts directed at Israel, without regard to the territorial aspects of such boycotts.

This repudiation of anti-Israel boycott activity would be in keeping with longstanding policy and law. I detailed the illegality of the BDS movement’s boycott activity in a paper titled “The BDS Movement: That Which We Call a Foreign Boycott, By Any Other Name, Is Still Illegal”. My paper was cited by the Supreme Court of Israel in its recent decision upholding a domestic anti-boycott law.

While the State Department noted that U.S. policy has never sought to legitimize Israeli settlement activity, U.S. policy has also clearly rejected any foreign intervention in shaping and implementing foreign policy goals. So while the U.S. may not approve of settlement activity, it also doesn’t approve of foreign boycotts against Israel. The State Department’s new position, however, upends this longstanding doctrine by implicitly approving of BDS activity that is directed at Israeli controlled territory. Since BDS, as a movement, is committed to the destruction of Israel and doesn’t differentiate between Israel and the territories, anything that supports BDS has the effect of supporting attacks on Israel’s right to exist as a state.

Furthermore, since the Trade Promotion Authority only obligates Congress to undertake an expedited up or down vote on trade agreements presented by the president, Congress will continue to have the power to vote down any and all trade agreements presented under Trade Promotion Authority for so long as the Executive branch refuses to execute (or otherwise interferes with) the anti-boycott provisions thereof. 

Making it clear to President Obama that Congress will hold up any and all trade agreements if he obstructs the anti-boycott provisions of the law would be a powerful, effective, and ongoing check on any executive branch attempts to legitimize anti-Israel boycotts.