Stop Revising History and Start Following the Law

Last week, 73 members of the House Democratic Caucus sent a letter to President Biden urging him to reverse what they called “the previous administration’s abandonment of longstanding, bipartisan United States policy” as it relates to the Israeli-Palestinian conflict. That revisionist history reflects nothing more than a desperate attempt by a non-representative minority of lawmakers hoping to use anti-Trump sentiment in an effort to obscure what they are actually doing: advocating against the will of Congress and the American people.

Among the most egregious of the short letter’s follies were several requests, the fulfillment of which would actually be illegal, and several others that rely on gross distortions of the truth.

First, the letter pushes for the reopening of a Palestinian consulate in East Jerusalem. As a practical matter, this would be a redundant waste of taxpayer money because the Jerusalem embassy already provides consular services on a non-discriminatory basis. But it would also run directly contra to the actual will of Congress, as expressed in the Jerusalem Embassy Act of 1995. The Act provides that “Jerusalem should remain an undivided city” and, for the record, it was passed by overwhelming bipartisan consensus, in both houses of Congress, 21 years before Mr. Trump was ever elected President.

Opening the consulate would also be illegal under the 2018 Taylor Force Act, another law passed by a massive bipartisan Congressional consensus (i.e. not by Trump). That bill put a hold on any assistance that directly benefits the Palestinian Authority until they stop paying terrorists to kill American and Israeli citizens.

Another of the letter’s requests, that Biden disburse all remaining congressionally appropriated aid to the Palestinians “following all applicable US Law,” is also exposed under that same bill as being either remarkably ill-informed or ill-intentioned. As recently as March, the State Department confirmed that “the PA has not revoked any law, decree, regulation, or document authorizing or implementing” their system of structured payments to terrorists. In layman’s terms, that means the U.S. cannot possibly, following all applicable U.S. law, disburse the appropriated aid. It is true that under Trump the PA was held accountable for their laws; it is unclear why the Democrats would want to reverse that and reward their intransigence.

The letter urges the President to “strongly oppose the forced expulsion via eviction of Palestinian families from their homes in East Jerusalem and throughout Palestinian territory.” This apparent reference to the recent situation in Sheikh Jarrah is not only irresponsible but also actually dangerous. In early May, a private civil court case over unpaid rent (that did not even involve the State of Israel as a party) was spun as an example of “forced expulsion” that could be blamed on the Israeli government.

Under that justification, and empowered by the international support they received for their story—including from the left-wing of the Democratic Party—Hamas and other terrorist groups started firing thousands of rockets at innocent people in densely populated cities. There is no forced expulsion happening, and even paying lip-service to that lie, as this letter does, will only further embolden terrorists. It is also not what the American people, including these lawmakers own constituents, actually want: a recent poll found that a full 80 percent of Democrats approve of the way Biden handled the recent conflict.

There is no forced expulsion happening, and even paying lip-service to that lie, as this letter does, will only further embolden terrorists.

The letter asks Biden to “Make clear that the United States considers settlements to be inconsistent with international law by reissuing relevant State Department and U.S. customs guidance to that effect.”  In fact, the U.S., officially, does notconsider Israeli settlements to be inconsistent with international law. The “relevant U.S. State Department” guidance referred to here is a tortured three-page memo from 1978 that resorted to applying international law as it relates to Israel differently than it had been ever applied anywhere else in the world or in history, in order to conclude that Israel was somehow doing something wrong. That memo was rejected a mere three years later (and now a full forty years ago) by President Ronald Reagan. The truth is that, while the U.S. has at various times opposed the expansion of Israeli settlements, no sitting U.S. President has ever called the settlements illegal, because they are not.

The letter also calls for Biden to formally withdraw the previous administration’s peace plan, and reaffirm as official U.S. policy the principles for resolving the conflict referenced by the House of Representatives in H. Res. 326 (116th Congress).

It is unclear if any of the members who signed the letter actually read the full “Peace to Prosperity” plan, or simply dismissed it outright because it was delivered by President Trump. To be clear, the plan called for a Palestinian State with a capital in East Jerusalem that would incorporate some 97 percent of the Palestinians in the West Bank into contiguous Palestinian territory, with land swaps provided to make sure that the emerging State of Palestine would be comparable in size to the pre-1967 territories of the West Bank and Gaza, along with massive economic stimuli designed to jumpstart the Palestinian economy. Nothing in that outline is inconsistent with the expressed will of Congress.

If these lawmakers are actually interested in furthering the peace process, instead of just playing politics, they should call on Biden to:

a) respect the will of Congress, and withhold aid until the terrorist payments finally stop,

b) reject dangerous false narratives that are used to justify violence, and

c) encourage the Palestinians to realize that the basic parameters of a two-state deal have always been and will always be the same, regardless of who is President.

Dr. Mark Goldfeder is an international lawyer and Director of the National Jewish Advocacy Center