Friday, April 29, 2011

Senator Mark Kirk's Memo: Legal Issues Of US Funding Hamas-Fatah Government

The key point of the following Memo--the questions Senator Kirk asks, establishing the standards by which a Hamas-Fatah "Unity Government" needs to be judged in order to meet the qualifications for receiving further US aid

FM: Office of Senator Mark Kirk (R-IL)
TO: Interested Parties
RE: Key Items to Watch in PA Unity Government


This week, multiple news agencies reported that Fatah and Hamas reached an agreement to form a Palestinian Authority unity government. However, critical details that could impact future U.S. assistance to the Palestinian Authority remain unknown. This memorandum summarizes the potential legal issues involved and provides a series of questions for the Administration and the Congress to ask when details of the unity government emerge.


Restrictions on U.S. Assistance to a Unity Government

For the situation at hand, the relevant statute remains the Lowey-Kirk language contained in Section 1107 of the Supplemental Appropriations Act, 2009 (Public Law 111-32). That bill was accompanied by committee report language providing further guidance to the executive branch.

Under this provision, no U.S. funds may be provided for:
1) salaries of personnel of the Palestinian Authority located in Gaza;
2) assistance to Hamas or any entity effectively controlled by Hamas; or
3) any power-sharing government of which Hamas is a member, unless the President certifies to Congress that “such government, including all of its ministers or such equivalent, has publicly accepted and is complying with” the core requirements of the Palestinian Anti-Terrorism Act of 2006, which are:
a. publicly acknowledging the Jewish state of Israel’s right to exist; and
b. committing itself/themselves and adhering to all previous agreements and understandings with the United States Government, with the Government of Israel, and with the international community, including agreements and understandings pursuant to the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (commonly referred to as the ‘Roadmap’)
The accompanying report language further defined “such equivalent” as “other officials of such equivalent rank and stature” and further defined “publicly accepted” as “in writing by such government and its ministers.”

Section 1107 was carried forward in Section 7040 of the Consolidated Appropriations Act, 2010 (Public Law 111-117) – and this section carried forward by Section 1101(a)(6) of Division B of the recently enacted Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Public Law 112-10).

Will Any PA Personnel Be Located in Gaza?

Regardless of the technical details of the unity government, the governing statute cited above strictly prohibits U.S. funding for the salaries of Palestinian Authority personnel located in Gaza.

Will Hamas Effectively Control Any Palestinian Entities?

Assistance to Hamas or any entity effectively controlled by Hamas is strictly prohibited under current law. Therefore, any PA agency, institution or ministry effectively controlled by Hamas would be ineligible to receive U.S. funding.

Have Ministers of the New Government Accepted Key Principles?

The governing statute clearly states that each minister or such equivalent must publicly acknowledge the Jewish state of Israel’s right to exist and commit him or herself to all previous agreements and understandings with the United States, Israel and the international community, including the Roadmap to Peace (which includes the renunciation of violence).

Did They Accept the Key Principles in Writing?

A verbal statement, whether issued in public or private, is not enough to satisfy the governing statute. The Committee clearly defined “publicly” as “in writing.” We must be able to see signed copies of each minister or equivalent’s acceptance of key principles.

What about Officials of Equivalent Stature or Rank to a Minister?

Just because someone is not called “minister,” doesn’t mean they are above the law. The Committee clearly defined “equivalent” as an official with an equivalent rank or stature to a minister. If any such positions are created by the unity government agreement, those individuals must accept the key principles in writing as well.

Will Hamas Security Forces Work in Coordination with PA Security Forces?

According to news reports, the final Fatah-Hamas agreement may include “security arrangements” to facilitate Fatah-Hamas border and other security cooperation. On November 24, 2010, Secretary Clinton re-designated Hamas as a foreign terrorist organization (FTO) in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. Therefore, should PA security forces enter into cooperation with Hamas security forces, U.S. assistance for Palestinian security may be prohibited.

Has Hamas Joined the Palestine Liberation Organization?

According to news reports, the final Fatah-Hamas agreement may include a “restructuring” of the Palestine Liberation Organization (PLO) to permit Hamas to join. On November 24, 2010, Secretary Clinton re-designated Hamas as a foreign terrorist organization (FTO) in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. Therefore, should Hamas join the PLO, the Secretary may be forced to designate the PLO as an FTO.

Under the law, such designation would make it unlawful for a person in the United States or subject to the jurisdiction of the United States to knowingly provide "material support or resources" to the PLO (i.e. any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who maybe or include oneself), and transportation, except medicine or religious materials).

Under the law, PLO representatives and members, if they are aliens, would be inadmissible to and, in certain circumstances, removable from the United States. Furthermore, any U.S. financial institution that becomes aware that it has possession of or control over funds in which the PLO or its agent has an interest must retain possession of or control over the funds and report the funds to the Office of Foreign Assets Control of the U.S. Department of the Treasury.
Hat tip: Noah Pollak

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