The Israeli government announced in October that it had designated six leading Palestinian human rights groups as terrorist organizations. The decision has sent shock waves through Palestine and the broader human rights community globally. The evidence is deep and deepening that the basis of the allegations is thin, and that the Israeli government has attempted to do directly what it previously failed to persuade European governments to do – isolate and criminalize the groups on the basis of weak evidence.
As a lawyer I represent individuals in the United States who have been wrongly placed on bloated terrorist lists and Palestinian rights advocates sued under flimsy theories of terrorist affiliation. My clients and I are too familiar with the extreme harms that can flow from baseless or even retaliatory allegations of affiliation with terrorism, including surveillance, travel restrictions, deportation or visa denials, stigmatization, and financial and political isolation, in addition of course to the lingering threat of criminal prosecution. That harm is not just to the listed organizations, their employees, their families, and communities. The broad chilling effect these listings could have on the human rights sector, the Palestine advocacy community, as well as academics, journalists, and particularly funders, cannot be overstated. That chilling effect – in particular on funders – is arguably the purpose of the Israeli’s declarations. This is reflected in the language of the orders themselves, which contain minimal information about the factual allegations against the organizations, but which specifically highlight the funding they receive from European countries.
It appears that Israel’s designation is primarily intended to trigger the global counterterrorism regime and lend itself to third-party (over)enforcement in pursuit of an agenda to demobilize and repress Palestinian rights advocacy. Indeed, Israeli authorities do not need to designate these groups as terrorist to arrest, raid, surveil, or otherwise take measures against the listed organizations — they were doing so routinely well before these designations.
This article focuses on the United States-facing impacts of the designations. The United States’ counterterrorism regime, including overbroad material support prohibitions that are prone to abuse, are chief amongst those that can be – and have been – wielded to suppress Palestinian advocacy. In light of this context, it should sound alarms that Ned Price, the Department of State’s spokesperson, recently engaged in an acrobatic back-and-forth with a reporter to avoid commenting on whether or not the United States has taken a position on Israel’s designation, or had received notice prior to the designation. Considering how these same unsubstantiated allegations have functioned in the past, a non-position like the one that Price and the Department of State have thus far taken risks imposing severe consequences on the listed groups and the Palestinian rights community.
The U.S. Departments of Treasury or State need not themselves designate these human rights groups for there to be significant fallout from Israel’s claims. Launching these allegations alone, with or without substance, can cause serious and crippling isolation of the designated groups. Third parties – funders, institutions, advocates, students – fear they might be violating some law, or that they could subject themselves to resource-intensive lawsuits to defend themselves from allegations of supporting a designated group. Those of us who advise Palestinian rights groups and engage in advocacy for Palestinian rights suspect that this is exactly the intended consequence. Indeed, each time there is a new report purporting to uncover terrorist ties to Palestinian rights groups – no matter how implausible the accusations – my organization receives calls from individuals and institutions alike concerned about their potential liability in light of this new, or newly packaged, information.
In the remainder of this article, I’ll describe briefly the broader political context to these designations, followed by analysis of how the United States’ material support regime has already been leveraged against Palestinian rights advocates and activists. In light of this context, the current moment presents a clear opportunity for the Department of State and other agencies to not just prevent any further harm that would result from this latest escalation, but to undo some of the existing harms.
The Long History of Targeting by Israeli Authorities
The recent Israeli designation is only the formalization of a long-standing project. For years, Palestinian human rights organizations have been under relentless attack by Israeli authorities, and by far right-wing groups like NGO Monitor, Act.IL, the Israel Law Center, and many others. Eliav Lieblich and Adam Shinar’s article in Just Security last month offered some of that necessary context. A recent report by the Charity & Security Network has further detailed these attacks – including calls to deplatform Palestinian organizations or pursue meritless litigation. Palestine Legal, a legal organization that is dedicated to defending Palestinian advocates under attack, has been chronicling the many facets of these silencing efforts for years.
Leveling the charge of terrorism affiliation has long been a feature of these attacks. NGO Monitor, a far right-wing research organization that has attacked Oxfam, Human Rights Watch and Amnesty International for their criticism of Israeli practices, has for years argued that Palestinian human rights organizations are “fronts” for the Popular Front for the Liberation of Palestine PFLP (a Marxist-Palestinian political party that has also been designated by the U.S. Department of State as a Foreign Terrorist Organization) – a charge that has now been formalized in the case of the six designated NGOs. The attacks on Palestinian NGOs by far-right advocacy organizations have been pursued in parallel with efforts by the Israeli government. In February of 2019, the Israeli Ministry of Strategic Affairs published “Terrorists in Suits: [T]he Ties between NGOs Promoting BDS and Terrorist Organizations,” painting Palestinian advocates as fronts for terrorist groups. Yossi Kuperwasser, formerly with the Israeli Ministry of Strategic Affairs and head of research at the Israel Defense Forces (IDF), has pushed these claims and targeted organizations pursuing accountability for Israeli violations at the International Criminal Court – including Al-Haq, one of the six designated Palestinian human rights organizations – by seeking to connect them to terrorist organizations.
Significantly, despite years of efforts and resulting extensive audits by donors, not one in a series of independent inquiries have found any basis for these allegations (see, for example, here, here, here and here). As the Intercept and +972 Magazine revealed on Thursday, the basis of the recent designations appear to have been presented in May to European donor states, who found it added nothing materially different to the prior rounds of unpersuasive allegations and were based on testimony (highly coerced, according to their lawyers) from two employees who, according to the Israeli document, were fired from a seventh organization on suspicions of financial misconduct, and who apparently had no direct knowledge. Yet even though these allegations are repeatedly revealed to be baseless, they have hindered funding, resulted in invasive questioning of these groups by donors and their auditors, and distracted them from their work.
The Abuse of U.S. Material Support Laws
In the United States, some far right-wing groups have sought to leverage expansive U.S. laws on material support to terrorism to criminalize or deter support for Palestinian rights’ organizations. The latest designations will further fuel this effort to suppress advocacy for Palestinian rights. It is essential that U.S. officials be mindful of this context as they consider the U.S. government response.
Some advocacy organizations have weaponized the vast gray areas left open by the U.S. Supreme Court’s decision in Holder v. Humanitarian Law Project (a challenge to the breadth of the material support statute by groups seeking to engage in humanitarian work or political advocacy). In an exercise of broad deference to Congress, the Court in HLP held that advocacy, training, and other forms of support that are “coordinated with” a designated group, or their (also broadly defined) agents, may be prohibited. In the years since the decision, advocacy organizations have used it to threaten human rights advocacy groups, their funders, and the platforms that they use. These threats have included the abuse of the False Claims Act, and suits under 18 U.S.C. 2333. The latter, which creates a civil action for violations of various criminal provisions, including a broad “aiding and abetting” provision, is wielded as an ever-present threat that lingers over many organizations. My colleagues and I represent a U.S.-based Palestinian rights advocacy organization in a lawsuit under this provision brought by plaintiffs including the Jewish National Fund which is based on allegations of guilt-by-association. Although our motion to dismiss prevailed in the district court (with Judge Leon characterizing the plaintiffs’ arguments as, “to say the least, not persuasive”), and we prevailed again after a motion to reconsider, the plaintiffs are now pursuing an appeal. The goal of the litigation seems to be to serve as a warning to others – to extract a cost from a U.S.-based group for engaging in advocacy for Palestinian rights in partnership with Palestinian organizations.
The impact of the U.S. material support laws lives well beyond any formal docket. There have been concerted media and letter-writing campaigns to pressure various financial services providers and web hosting platforms to suspend services to advocacy organizations. These risk-averse institutions, many of which also lack the background necessary to properly assess the politically-driven nature of the allegations presented to them by these advocacy groups, would rather withdraw services than deal with such high-stakes accusations. Similar efforts have been directed towards funders. Zachor Legal, an advocacy organization that has sought “financial and criminal penalties on the entities and individuals that are engaging in or funding/overseeing” certain Palestinian rights groups, has urged the Department of Justice to investigate U.S-based Palestinian rights groups, including student organizations, as affiliated with designated terrorist organizations. In an updated letter, they further claimed that the Black Lives Matter protests were the work of these Palestinian “terrorist groups.”
Although these efforts have repeatedly failed scrutiny and are often clumsy and absurd, they have nevertheless been chilling. As a result of these efforts, individuals have come to us and other trusted lawyers for legal advice ahead of participating in advocacy campaigns where one person or organization involved has been accused of being an agent of a designated organization. Academics have questioned whether they could participate in a conference that may be organized by or include participants from designated organizations. Activists have wondered whether they could amplify human rights campaigns led by groups that have been accused by NGO Monitor and its likes of being affiliated with terrorist organizations. Journalists have sought advice about the boundaries of what they could and could not print. The impact on U.S. citizens has been significant, curtailing their right to associate and their access to information.
These broad and intentional chilling effects are among the many reasons why a wide coalition of civil liberties organizations have demanded that Congress review the material support statutes and assess the impacts of these laws on protected behavior, humanitarian action, and human rights defenders.
How the U.S. Government Must Respond
In light of how broad the material support regime is and the range of legal, administrative, and regulatory consequences it can trigger – including private enforcement action – it is incumbent on the United States to vociferously and publicly reject the allegations. Silence would be a concession to the strategy of bullying the Palestinian rights community that has been so central to Israeli policy these past years. It could also enable this Israeli government overreach to impact U.S.-based actors. The list of U.S. actors who have had extensive engagement and partnerships with the designated Palestinian organizations includes diplomats, U.S. government officials, development workers, members of Congress and their staffers, students and academics, including a large number of law students and faculty, and a broad swath of Palestinian rights advocates in the United States.
It is heartening that there have already been strong public expressions of concern by Members of Congress. Congressman Jim McGovern (D-MA) and others have aptly articulated general concerns over the abuse of counter-terrorism measures by States to undermine respect for human rights around the world. Representatives Betty McCollum (D-MN) and Mark Pocan (D-WI) each issued statements calling for Israel to reverse the designations.
But the harms can also be mitigated by a range of other measures. Additional individual Members of Congress as well as the Department of State and other agencies can play a significant role in ensuring that the impacts of the Israeli designation will not carry over into the United States. If designations are intended to render designated organizations radioactive, Members of Congress and the Department of State can counter that approach by continuing to engage with these organizations. Although the Oct. 26 hearing at the bipartisan Tom Lantos Human Rights Commission sent a strong signal that many in Congress have concerns about this overreach, more direct engagement with the targeted six is needed. For instance, the Department of State could cite these designated groups in annual human rights reports; Members of Congress should invite them to submit testimony on their work and continue meeting with them during visits to the region. The U.S. Department of Treasury, or the Department of State, could publish guidance for financial institutions instructing them to dismiss as inapplicable or unreliable Israel’s designations.
Although ultimately a more comprehensive review of the abuse of U.S. counterterrorism laws and their impact on civil society must be undertaken, this latest move calls for immediate mitigation measures.