[Congressional Record Volume 165, Number 23 (Wednesday, February 6, 2019)]
[Senate]
[Pages S914-S917]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  S.1

  Mr. VAN HOLLEN. Mr. President, I come to the Senate floor today with 
a sense of great disappointment, disappointment in what my colleague, 
the senior Senator from Florida and the Republican leader have done 
with the bill that was before us. Because they have taken a bill that 
had broad--maybe unanimous--bipartisan support and tried to turn it 
into a political weapon. As a result, they are doing a great disservice 
to the American people and to all of us who value the tradition of 
strong bipartisan support for our friend and ally, Israel. I also 
opposed Senator McConnell's amendment to S.1 because it contains 
language that could require the perpetual presence of American forces 
in Afghanistan and Syria.
  I am a cosponsor of the original bill S.2497 entitled the United 
States-Israel Security Assistance Authorization Act of 2018. It is a 
bill to codify the memorandum of understanding between the United 
States and Israel, that was forged under President Obama and which 
provides Israel with $38 billion in security assistance over the next 
10 years. This includes $33 billion in foreign military financing funds 
to Israel and $5 billion in missile defense assistance for the Iron 
Dome, David's Sling, and the Arrow-3.
  That is a lot of money when you consider the many priorities we have 
here at home and abroad. In fact, more than one-half of our entire 
global foreign military financing, the security assistance we provide 
to all of our partners and allies around the world, goes to Israel.
  In my view, it is an important investment, it is an important 
investment to support our friend and democratic ally Israel from the 
many threats it faces in a very dangerous neighborhood--threats from 
Iran, Syria, Hezbollah, Hamas, and many others. We need to make sure 
Israel maintains a strong military edge to defend itself, and that is 
why you have strong bipartisan support for that original bill.
  But then the Republican leader took a bill with broad bipartisan 
support for Israel and added a provision designed to retaliate against 
American citizens who express their disagreement with certain policies 
of the government of Israel by participating in certain boycott 
activities. Specifically, the Senator from Florida added a provision 
that encourages States throughout the country to pass laws to punish 
American citizens who choose to protest the settlement policies of the 
government of Prime Minister Netanyahu by either boycotting products 
made in Israeli settlements in the West Bank or by not otherwise 
engaging in commerce with such settlements.
  Now--and I want to make this clear--while I disagree with some of the 
policies adopted by the Netanyahu government in Israel, I do not--I do 
not in any way support a boycott as a method of expressing those 
disagreements.
  But--let me be equally clear on this point--I will fiercely defend 
the constitutional right of any American citizen to express his or her 
views in such a peaceful way if they so choose. Just as I would support 
the right of every American to engage in other political boycotts to 
peacefully express their political views without fear of being punished 
by their government.
  The Senator from Florida wants to use the power of the State to 
punish American citizens who disagree with him on this issue. It is 
right here in the bill. Let me read some of the relevant parts.
  A state may adopt and enforce measures . . . to restrict contracting 
by the state for goods and services with--any entity that . . . 
knowingly engages in . . . boycott activity . . . intended to limit 
commercial relations with Israel or persons doing business in Israel or 
Israeli-controlled territories for purposes of imposing policy 
positions on, the Government of Israel.
  So how does this new provision encourage States to retaliate against 
American citizens? It encourages States to pass laws to deny their 
citizens the right to bid on any State contracts unless those citizens 
sign an oath stating that they do not or will not engage in any boycott 
of Israel, including any boycott relating the sale or purchase of goods 
or services from Israeli settlements in the West Bank.
  Think about that. Let's say you are an American citizen living in my 
State of Maryland. Let's say you own a computer consulting business and 
you happen to disagree with Israeli Prime Minister Netanyahu's policy 
of expanding

[[Page S915]]

settlements on the West Bank near the city of Bethlehem, and you want 
to express your opposition to that policy, and let's say you choose to 
protest that policy by deciding that you will not provide your services 
to businesses located in those settlements on the West Bank.
  If you did that, you would be prohibited by State law from bidding on 
a contract to provide computer consulting services to a Maryland State 
agency. Think about that. You may run the best computer consulting 
business in the State of Maryland, but if you don't sign an oath 
renouncing your right to engage in a boycott, you cannot win any 
contract with the State. In other words, even if you are the best, most 
qualified bidder, you would be disqualified from winning that State 
contract because of your peaceful political activity having nothing to 
do with your ability to fulfill the contract.
  Does that sound unconstitutional? Of course, it is unconstitutional. 
And, guess what? That is what two Federal courts have already concluded 
about State laws that already do what Senator Rubio's bill is 
proposing. I am going to review those decisions in a moment, but before 
I do, let me respond to the really flimsy defense the senior Senator 
from Florida and others have offered to try to justify this effort to 
punish free expression. Here is what Senator Rubio tweeted out: 
``Opposition to our bill isn't about free speech. Companies are FREE to 
boycott Israel. But state and local governments should be FREE to end 
contracts with companies that do.''
  This reflects a profound misunderstanding of the First Amendment. It 
turns the First Amendment on its head. It is like saying to our fellow 
Americans, you are free to peacefully express yourselves however you 
want, but the government is then free to use the power of the State to 
punish you for doing so. You are free to express your political 
opinions, but, if we don't like what you say, the State is free to pass 
laws to prevent you from doing any business with the State.
  That is State-sponsored discrimination against disfavored political 
expression. I would remind my colleagues that the First Amendment is 
not designed to protect government from its citizens; it is designed to 
protect citizens, who may engage in unpopular speech, from retaliation 
by the government.
  What if a State passed a law to penalize gun control advocates who 
boycotted stores that sold semiautomatic weapons? What if a State 
retaliated against anti-abortion activists who boycotted health clinics 
that provide abortion services?
  So SenatorRubio's proposal is a textbook example of why we need the 
First Amendment.
  I have heard others defend this measure by saying: ``It is simply a 
law to boycott the boycotters.'' A cute slogan but, again, a stunning 
ignorance of the First Amendment. Yes, any of us, as individuals, can 
always decide to boycott those whose boycotts we disagree with. Each of 
us is free to boycott those businesses who choose to boycott Israeli 
settlements in the West Bank, but that is not what this bill does. This 
bill calls upon States to use the power of the State, the power of the 
government to punish peaceful political actions we don't like. Again, 
that is patently unconstitutional.
  That is the conclusion reached by two Federal courts that struck down 
the kind of State laws that SenatorRubio seeks to promote.
  In Kansas, a Federal judge blocked the enforcement of a State law 
requiring any state contractor to submit a written certification that 
they are ``not currently engaged in a boycott of Israel.'' In the 
Kansas case, a woman who had served as a public school math teacher for 
9 years was barred from participating in a Sate-sponsored teacher 
training program because she refused to sign a certification that she 
wasn't participating in a boycott of Israel.
  The court found that the antiboycott certification requirement was 
designed to suppress political speech and was ``plainly 
unconstitutional.'' In his opinion, the judge wrote, ``[T]he Supreme 
Court has held that the First Amendment protects the right to 
participate in a boycott like the one punished by the Kansas law.''
  In Arizona, a Federal court blocked a State law requiring contractors 
to certify that they will not boycott Israel, finding again that the 
law violates the right of free speech. In this case, an attorney 
contracted with the government to provide legal services to 
incarcerated individuals. Because of his political views, the attorney 
refused to purchase goods from businesses supporting Israeli 
settlements in the West Bank. Because he would not submit a written 
certification that he wasn't boycotting Israel, he was barred from 
contracting with the State to provide legal services.
  In this case, the court held, ``A restriction of one's ability to 
participate in collective calls to oppose Israel unquestionably burdens 
the protected expression of companies wishing to engage in a boycott. 
The type of collective action targeted by the [law] specifically 
implicates the rights of assembly and association that Americans and 
Arizonans use `to bring about political, social, and economic 
change'.''
  There are a number of other challenges to laws requiring government 
contractors to certify they are not boycotting Israel or Israeli 
settlements, on the grounds that they violate an American's fundamental 
right to free speech.
  In Texas, there are two pending First Amendment challenges to a law 
requiring State contractors to certify they will not boycott Israel or 
its settlements.
  In the first Texas lawsuit, four individuals were required to choose 
between signing a certification that they are not participating in a 
peaceful boycott or losing income and other professional opportunities. 
These individuals include a freelance writer who lost two service 
contracts from the University of Houston; a reporter who was forced to 
sign the certification against his conscience in order to keep his job; 
a Ph.D. candidate at Rice University, who was forced to forfeit payment 
for judging at a debate tournament; and a student at Texas State 
University, who has had to forego opportunities to judge high school 
debate tournaments.
  In the second lawsuit, a Texas speech pathologist, who had worked 
with developmentally disabled, autistic, and speech-impaired elementary 
school students for 9 years, was fired because she refused to sign an 
addendum to her contract renewal saying she would not boycott Israel or 
Israeli settlements.
  In my home State of Maryland, a software engineer is challenging an 
executive order requiring contractors to certify in writing that they 
are not boycotting Israel or its settlements. In that case, the 
individual was barred from bidding on government software program 
contracts because he would not sign such a certification.
  These laws are patently unconstitutional.
  Now, I will speak briefly to a recent court decision in Arkansas, in 
which the judge ruled in favor of a law prohibiting the State from 
contracting with or investing in individuals or firms that boycott 
Israel or its settlements.
  This decision is destined for dustbin of history. I am not sure any 
Senator wants to be associated with its holding. It concludes that a 
boycott ``is not speech, inherently expressive activity, or subject to 
constitutional protection.''
  The banner right here on page 9 on the opinion reads: ``A Boycott Is 
Neither Speech Nor Inherently Expressive Conduct.''
  In other words, States can pass laws banning or penalizing boycotts 
that they don't like. Years ago, as a college student, I was active in 
the movement to divest from companies that did business with the 
apartheid regime of South Africa. Under the Arkansas court decision, a 
State could pass a law that could ban that conduct or at least penalize 
me if I did business as a sole proprietor and sought State contracts.
  There is no doubt that the Arkansas decision will be overturned. That 
is because the Supreme Court explicitly held in the case of NAACP v. 
Claiborne Hardware that the First Amendment protects the right to 
participate in a boycott for political purposes. The judge in the 
Arkansas case attempts to narrow that NAACP holding in a way that is 
clearly inconsistent with the First Amendment protections. I urge my 
colleagues to read all three decisions from the Federal district courts 
in Kansas, Arizona, and Arkansas.

[[Page S916]]

  Now, as I said earlier, I do not support the boycott of Israel as a 
means of pressing the Netanyahu government to change some of its 
policies, but here is what I predict: I predict that the boycott 
movement will continue to grow for a number of reasons. At the top of 
that list is the fact that the Trump administration's actions and 
inaction are adding oxygen to the boycott movement.
  To start, the Trump administration has abandoned any pretense of 
trying to prevent the expansion of Israeli settlements in new parts of 
the West Bank. There has been a big jump in the number of tenders and 
settlement plans since President Trump took office. In fact, our 
Ambassador there, Ambassador Freidman, has been a vocal cheerleader for 
additional settlements in new areas. In doing so, the Trump 
administration has abandoned what had been a long-held bipartisan 
position of the U.S. Government. Here are a few statements from 
Presidents of both parties over the past 40 years.
  President Ronald Reagan, in 1982, said, ``Settlement activity is in 
no way necessary for the security of Israel and only diminishes the 
confidence of the Arabs that a final outcome can be freely and fairly 
negotiated.''
  President George H.W. Bush, in 1990, said, ``The foreign policy of 
the United States says we do not believe there should be new 
settlements in the West Bank or in East Jerusalem.''
  President Bill Clinton, in 2001, said, ``The settlement enterprise 
and building bypass roads in the heart of what they already know will 
one day be part of a Palestinian state is inconsistent with the Oslo 
commitment that both sides negotiate a compromise.''
  President George W. Bush spoke out against new settlements. In 2002, 
he said, ``Israeli settlement activity in occupied territories must 
stop, and the occupation must end through withdrawal to secure and 
recognized boundaries.''
  Finally, President Obama, in 2009, said, ``The United States does not 
accept the legitimacy of continued Israeli settlements. This 
construction violates previous agreements and undermines efforts to 
achieve peace. It is time for these settlements to stop.''
  The provision before us today directly contradicts this long stated 
U.S. policy by drawing no distinction between someone boycotting 
businesses located in the State of Israel and someone boycotting 
businesses located in settlements in the territories. In other words, 
this provision and the State laws it promotes supports the same penalty 
for those who boycott commerce with a business in Tel Aviv as it does 
those who boycott commerce with businesses in the settlements, 
including outposts that may be illegal even under Israeli law. This 
provision that was before us erases an important distinction in 
American policy that has been endorsed by Presidents of both parties.
  One of the reasons for discouraging settlements and outposts in new 
areas is to preserve the option for a two-state solution, an option 
that has previously been supported by Presidents of both parties, as 
well as pro-Israel groups, including AIPAC, J Street, and others. It is 
a demographic reality that, in order to ensure a Jewish State that is 
democratic and provides equal rights to all its citizens, there must be 
a two-state solution.
  Now, such a solution should come about through a negotiated 
settlement between the parties, the Israelis and the Palestinians. We 
all know that dysfunction and obstruction on the Palestinian side has 
been one obstacle to reaching an agreement, but that does not justify 
changing the status quo on the ground by adding settlements in new 
areas that will make a two-state solution impossible.
  Second, the Trump administration, under the guidance of the 
President's designated Middle East senior adviser, his son-in-law, 
Jared Kushner, has embarked on undisguised effort to crush the 
Palestinians by revoking all U.S. humanitarian assistance.
  Here we are, authorizing $38 billion for U.S. military support for 
Israel, something I strongly support and am a cosponsor of, while at 
the same time the Trump administration has eliminated--eliminated--
humanitarian and other assistance to help the Palestinian people, many 
of whom are living in horrible conditions.
  The Trump administration has eliminated assistance that helps provide 
medical care, clean water and food to hundreds of thousands of 
vulnerable Palestinian children and families. Much of this assistance 
is provided by organizations like Catholic Relief Services and the 
Lutheran World Federation.
  President Trump has also eliminated $25 million in U.S. support to a 
network of six hospitals in East Jerusalem, support the Congress 
explicitly protected under the Taylor Force Act. In doing this, he 
gutted funding for the main hospital providing cancer treatment for 
patients in the West Bank and Gaza and kidney dialysis for children. 
These hospitals include Lutheran Augusta Victoria Hospital, the 
Anglican St. John of Jerusalem Eye Hospital, and the Catholic St. 
Joseph Hospital, American-founded institutions that fall under our 
American Schools and Hospitals Abroad program. The Trump administration 
has eliminated support for those programs.
  The effort to crush the Palestinians into submitting to a one-sided 
agreement will never work. President Trump and Jared Kushner apparently 
think this is just another real estate deal where you turn off the 
water and electricity to force your tenants out. Instead, these actions 
by the Trump administration will add fuel to the boycott movement 
because many people will see no other vehicle for expressing their 
views.
  Finally, to the Senator from Florida and others, nothing, will 
motivate Americans to exercise their rights more that efforts to 
suppress them. Trying to suppress free speech, even unpopular speech, 
even conduct that we don't support here and I don't support, that will 
only add momentum.
  I will end where I started. It is a really shameful and disappointing 
day when the sponsors of this legislation took a bill demonstrating 
strong bipartisan support for Israel, to our friends and allies that 
share our commitment to democracy, and share other values we hold dear, 
that Senators took that bill and used it to attack the constitutional 
rights of American citizens who may want to peacefully demonstrate 
their opposition to some of the Netanyahu government's policies--not in 
the way you would choose, not in the way I would choose--but in a way 
they have a right to do as American citizens.
  So in making these changes to the bill, the sponsors are sabotaging 
what was a bipartisan bill to support our friend and ally Israel and in 
the process strengthening the very boycott movement that we seek to 
oppose. That hurts Israel. That hurts the United States. This is a 
really sad day in the U.S. Senate, when we took something that we all 
agreed on and decided to use it to attack the constitutional rights of 
American citizens to express opinions we may disagree with.
  Furthermore, I oppose Senator McConnell's amendment to S. 1, which 
calls for ``the Administration to certify that conditions have been met 
for the enduring defeat of al Qaeda and ISIS before initiating any 
significant withdrawal of United States forces from Syria and 
Afghanistan.'' I strongly believe we have to finish the job and destroy 
and al Qaeda and ISIS, but Senator McConnell leaves undefined what an 
``enduring defeat'' means in this context. Does he mean an enduring 
defeat of the ideology of ISIS and al-Qaeda, which may never be 
achieved? Does he mean the removal of every single fighter from the 
battlefield, which the administration might also never be able to 
certify? By leaving this standard so nebulous, Senator McConnell has 
seemingly endorsed an indefinite presence of U.S. troops in both 
countries, bolstering the positions of the most hawkish members of 
President Trump's Cabinet, National Security Adviser John Bolton and 
Secretary of State Mike Pompeo.
  Though I do not support an indefinite U.S. presence in Syria, I also 
oppose President Trump's abrupt decision for an immediate withdrawal 
from Syria. This rash decision puts at risk our mission to defeat ISIS 
and endangers the future of our Syrian Kurdish allies, who have been 
the tip of the spear in that fight. Ilham Ahmed, the cochair of the 
Syrian Democratic Council, underscored this point in a meeting I 
convened with a bipartisan group of Senators last week.

[[Page S917]]

  That is why I introduced a bipartisan amendment with Senator Toomey, 
which calls for a clear, publicly articulated strategy that will guide 
the withdrawal of U.S. forces from Syria. Critically, our amendment 
also makes clear that the United States must protect the Syrian 
Democratic Forces from attacks by Turkey, which is more focused on 
destroying the Syrian Kurds than defeating ISIS.
  Finally, this legislation does not acknowledge the obvious: We have a 
reckless President who undermines our security daily. We have a 
President who conducts foreign policy by tweet and champions the views 
of brutal dictators, like Vladimir Putin and Kim Jong Un, above that of 
his own top intelligence officials. We have a President who has 
compromised American credibility; allies and adversaries alike cannot 
trust if his grand pronouncements will translate into action or if they 
will just as quickly be reversed. More than any President before him, 
President Trump has shirked America's founding principles and our 
values as a nation. Until Republicans in the Congress acknowledge that 
obvious point, our ability to preserve American leadership abroad will 
be greatly compromised.
  For all of these reasons, I voted against S. 1.
  Ms. DUCKWORTH. Mr. President, while the Strengthening America's 
Security in the Middle East Act is clearly far from perfect, the 
majority of the legislation addresses several key priorities that are 
particularly important to me: formalizing long-term security aid to 
Israel, supporting our Jordanian allies' fight against the Islamic 
State, and sanctioning the Syrian financial system over the Assad 
regime's human rights abuses.
  These provisions represent important measures to concretely support 
our allies and address serious national security concerns. The 
legislation as a whole also preserves Obama administration 
international agreements that promote regional security while providing 
the Trump administration with more tools to levy sanctions against 
human rights abusers in the Assad regime in Syria.
  I also strongly oppose the BDS movement. However, I have long had 
concerns about the Combating BDS Act and similar legislation, which 
could be interpreted to change longstanding U.S. policy towards Israeli 
settlement activity and could have negative implications on domestic 
freedom of speech protections. Those concerns are rightly being 
litigated in Federal court. This bill does not protect a state or local 
BDS law from being challenged in court by an individual on 
constitutional grounds.
  While this was among the more difficult votes I have taken, 
ultimately the national security and other benefits of the entirety of 
this legislation could not be ignored or passed up.

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