Anti-BDS provision signed by Obama won’t stop this movement

The Israel lobby is fighting a rearguard action against a movement that it is powerless to stop. (Stephen Melkisethian/Flickr)

As the Palestinian civil society-led movement for boycott, divestment and sanctions (BDS) continues to snowball, as evidenced by the United Church of Christ’s overwhelming affirmative vote earlier this week, Israel’s supporters have embarked on a desperate top-down strategy to legislate against this burgeoning grassroots initiative.

After several blatantly unconstitutional anti-BDS bills failed to generate support in the last US Congress, the Israel lobby giant AIPAC believed it scored a significant victory when President Barack Obama signed into law on Monday the first federal anti-BDS provision.

This provision, tucked into the Trade Promotion Authority bill — more commonly known as “fast track” authority — makes it a “principal negotiating objective” of the United States “to discourage politically motivated actions to boycott, divest from, or sanction Israel” in current negotiations with the European Union over the Transatlantic Trade and Investment Partnership.

The law also specifically extends this US discouragement of BDS to include “Israeli-controlled territories,” a transparent ploy to put pressure on the EU to reverse nascent steps to label products from Israeli settlements in the occupied West Bank.

More bark than bite

In a media release issued last month, AIPAC crowed that this provision is a “major step to defend Israel from pernicious economic efforts by foreign governments to unfairly target our democratic ally.”

But is this really a “major” step that will actually impact US policy? Hardly. Here are three reasons why this provision is so much less important than its protagonists portray it to be.

First, this provision is far from an anti-BDS clarion call by the US Congress. It originated as a stand-alone bill introduced by Senator Ben Cardin, a Maryland Democrat, in March. His bill picked up a whopping total of six co-sponsors. When Cardin saw that his bill was not gaining traction, he snuck it through committee as an amendment to fast track. Once his initiative was tacked onto this larger trade bill, it became an irrelevant sideshow barely mentioned in the ensuing tumultuous debate.

Second, after the president signed the bill into law, the Obama administration immediately disabused the Israel lobby of any notion that the anti-BDS provision would affect its policies. On Tuesday, State Department spokesperson John Kirby argued that by “conflating Israel and ‘Israeli-controlled territories,’” the anti-BDS provision “runs counter to longstanding US policy.”

He emphatically added that “the US government has never defended or supported Israeli settlements and … does not pursue policies or activities that would legitimize them.” Although Kirby reaffirmed US opposition to BDS campaigns against Israel (Obama referred to them as “bigoted” in a speech to AIPAC in 2008), the clear intent of this statement is to signify that the US will put up at best a perfunctory effort to discourage the EU from penalizing Israeli settlement products.

This does mark something of a shift. In January 2014, when settlement-based SodaStream was in the news, the State Department was adamant that the administration unequivocally opposed any and all boycotts, even of goods from Israeli settlements.

Failed ambition

Third, this short anti-BDS provision is the only portion of a much larger congressional anti-BDS push that has found its way into law to date. A much more ambitious anti-BDS bill being pushed by Illinois Republican Representative Peter Roskam, like the Cardin bill, has similarly failed to move on its own. This bill would require the president to submit an annual report to Congress on BDS and force foreign companies operating in the US to disclose BDS pressures to which they have been subjected by civil society.

Roskam snuck his legislation into another trade-related bill as an amendment that was passed by the House. The Senate, however, has refused to accept this language and instead favors a more anodyne, largely symbolic anti-BDS statement.

The House and Senate versions of this bill — HR644 — are now being reconciled by a conference committee with Roskam’s more drastic anti-BDS language unlikely to emerge victorious.

Even in the worst-case scenario of Roskam’s anti-BDS language being enacted into law and establishing reporting requirements, nothing in any congressional anti-BDS initiative does or could restrict our First Amendment-protected right to engage in BDS speech and advocacy. And anyone who is subjected to intimidation or interference in exercising this right should report the incident to the legal defense group Palestine Legal to beat back ongoing and intensifying efforts to muzzle BDS campaigning in particular and advocacy for Palestinian rights more broadly.

AIPAC may delude itself into believing that Congress has taken a “major step” to defeat the BDS movement. In truth, despite its ability to commandeer votes in Congress, it is fighting a rearguard action against a movement that it is powerless to stop.

Josh Ruebner is Policy Director of the US Campaign to End the Israeli Occupation and author of Shattered Hopes: Obama’s Failure to Broker Israeli-Palestinian Peace.