The parameters of the Act remain highly detrimental to civil rights and could lead to a substantial setback for BDS struggles in the U.S.
Last August, Sen. Kirsten Gillibrand’s (D-NY) withdrawal of support for the Israel Anti-Boycott Act seemed like a victory for free speech, Palestinian human rights, and the turning of the tide against the most audacious assault on the Boycott, Divestment and Sanctions (BDS) movement to emerge from Congress.
Facing growing grassroots pro-Palestinian solidarity and the continued failure of well-funded but morally inept Hasbara campaigns, the pro-Israel lobby has, through the Act, opted to criminalize the all-American pastime of boycotting – a constitutionally protected right.
The Civil Rights Movement was galvanized by the Montgomery Bus Boycott (1955-56), the Gay Rights movement mounted endless boycotts of anti-gay businesses, and more recently, we have seen boycotts of the states of Arizona and North Caroline for their immigration and transgender policies, respectively. Pro-Israel partisans, it should be noted, have long used boycotts to target pro-Palestinian activism and even the visibility of Palestinian culture.
Boycotts are often the traditional tactics of marginalized groups; the sum of the acts of countless individuals, they are democratic and not dependent on the privileges of wealth and power held by defenders of the status quo. Unlike a politician who can be coaxed or coerced, an individual refusing to patronize Israeli companies cannot be so easily targeted. The pro-Israel lobby, led by AIPAC, cannot outlaw the very act of boycott, but it aims to slow down, if not retard, BDS’s momentum by making it a crime to support the boycott of Israel.
The Act initially called for a civil penalty fine of $250,000 or a criminal fine of $1 million and 20-years imprisonment if prosecuted individuals are found to have supported the United Nations Human Rights Council’s efforts to blacklist companies, Israeli or otherwise, that operate in the occupied territories and illegal Israeli settlements. UNHRC reportedly has a list of about 150 firms profiting from the occupation, but hasn’t released it due to American and Israeli pressure. It’s noteworthy that for all its lip service to the two-state state solution at its recent convention, a deceptive plea to liberal Zionists, AIPAC remains committed to normalizing the very settlements and occupation that torpedo the possibility of two-states.
The Act was widely denounced, including by the ACLU, as unconstitutional for proscribing the free speech, assembly, and petition rights enshrined in the constitution. After Gillibrand backtracked in the face of constituent pressure, the Act seemed it might be doomed.
However, celebrations were premature. AIPAC has since narrowed the Act’s scope to make it more palatable; marketing it as corporate regulation rather than the anti-civil rights assault that it remains. The updated Act maintains the same penalties, but no longer threatens the Average Joe holding an “I support UNHRC boycott of Israel” sign. Instead, it punishes individuals who act in their company’s stead to support – purposively or inadvertently – the UNHRC putative boycott campaign. For instance, if an employee cooperated with a request for information by UNHCR on the company’s dealings with the Israeli occupation, then she would have committed a crime per the Act.
If companies choose to enforce Non-Disclosure Agreements, that’s their right, but in adopting this Act, Congress would effectively be telling every employer and employee in the country that they cannot abide by international law. In the past, BDS campaigns have compelled companies to reveal their illicit role in the occupation and cease their activities to avoid further public opprobrium. Now, ethically-minded company executives and employees would face the prospect of prosecution if pro-Israel partisans can make a case that divestment from the occupation, and concurrent disclosures, ended up buttressing UNHRC’s campaign, even if the company’s actions were solely self-interested.
Once again, we see the Palestine Exception to human rights. AIPAC’s moderation of the Act enlisted more congressional support. Following a March 6th lobbying day on Capitol Hill, eleven House members, including four Democrats, and three Senators, including Democrat Heidi Heitkamp, who’s up for reelection this year, have joined the now 281 House members and 55 Senators to cosponsor the legislation. In both chambers, one only two cosponsor have withdrawn support since the Act was introduced; in the House, that designation goes to Rep. Bobby Rush (D-IL).
The parameters of the Act remain highly detrimental to civil rights and could lead to a substantial setback for BDS struggles in the U.S. Moreover, its passage could serve as a precedent for even more draconian bills to rein in BDS. It has the votes, but will it pass? AIPAC has overreached before with a compliant Congress signing on to appease donors, but ultimately letting the legislation quietly die. AIPAC may also fear the eventual court challenges that would almost certainly find the Act unconstitutional. For AIPAC, the Act is also a fundraising tool for its increasingly hardened base of Likudnik supporters; something that galvanizes the base but has no actual legislative prospects and is better left unfulfilled to keep the base coming back, akin to Republican promises to repeal abortion rights. In this political climate, however, nothing can be left to chance. The Israel Anti-Boycott Act remains a potent threat to civil liberties and human rights.