Van Hollen Statement on S.1, Strengthening America’s Security in the Middle East Act of 2019

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 before us today. 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 oppose Senator McConnell’s amendment to S.1, because it contains language that could require the perpetual presence of American forces in Afghanistan and Syria.

Mr. President, I am a co-sponsor 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 ten 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’s 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 Mr. President — 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’s 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, 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 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’s unconstitutional! And, guess what? That’s 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’s is like saying to our fellow Americans, you are free to peacefully express yourselves however 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 semi-automatic weapons? What if a state retaliated against anti-abortion activists who boycotted health clinics that provide abortion services?

So Senator Rubio’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.

And that is the conclusion reached by two federal courts that struck down the kind of state laws that Senator Rubio 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’d served as a public school math teacher for nine years was barred from participating in a state-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 anti-boycott 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’re 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’re 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’d worked with developmentally disabled, autistic, and speech-impaired elementary school students for nine 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’re 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’ll 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’m 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.

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 United States government. Here are a few statements from presidents of both parties over the past forty 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.”

· And 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. So this provision 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. And 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 advisor, 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 Mr. President 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.

But Mr. President 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.

And finally, to the Senator from Florida and others — nothing, 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.

So, Mr. President, 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 Mr. President 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, in the process, strengthening the very boycott movement that we seek to oppose. That hurts Israel. That hurts the United States. And Mr. President this is a really sad day in the United States 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 co-chair of the Syrian Democratic Council, underscored this point in a meeting I convened with a bipartisan group of Senators last week.

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. And 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.