[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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