Jewish Right To Israel

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Thursday, June 23, 2011

Can US Supply Aid To Fatah If They're Connected To Hamas? They Already Have

Palestinians may think that the proposed unity government based on the reconciliation of Hamas and Fatah is just what they need, but it is posing a major problem to the US.

After all, Hamas has been designated as a terrorist entity, thus making support of Hamas illegal--and open to punishment.

But this is not a new problem. An article in Foreign Policy, Aiding Friends and Foes in Palestine addresses how the US was able to support Fatah after Hamas won in the 2006 and the two groups were part of the PA:

Hamas’ presence in the PA posed a significant challenge to U.S. interests in the Palestinian territories. Even so, the PA remained highly dependent on U.S. aid, receiving more than $400 million per year from Washington, and it was unclear whether the PA and its president, Fatah leader Mahmoud Abbas, could survive without it.

As a result, the U.S. Congress responded to Hamas’ 2006 electoral victory by passing the Palestinian Anti-Terrorism Act (PATA), which conditioned assistance to the PA on a presidential certification that Hamas did not effectively control any “ministry, agency, or instrumentality” of the PA and made “demonstrable progress” toward five benchmarks related to transparency, democratization, and antiterrorism. PATA provided a national security waiver that allowed the White House to continue funding various entities in the PA presidential office and judiciary branch, so long as Hamas did not control the recipient. It also permitted funding to nongovernmental organizations that provide aid to the West Bank and Gaza relating to humanitarian needs and democracy promotion.
Thus it is unlikely that the President could get around PATA with congressional authority--but then again, in light of Obama's recent end run around Congress to continue the war in Libya without their approval, it wouldn't be surprising if he tried something like that in this case, if he thought he served his foreign policy goals.

The article suggests a number of arguments the Obama administration could use to justify aid to a Palestinian unity government--and rebuts them all.
o Regardless of the law prohibiting assistance to Hamas, Obama could claim exemption based on his constitutional powers to conduct foreign policy.
However, existing laws and regulations do make federal officials just as liable for providing aid to FTOs as any private citizen.

o It could be argued that since Hamas does not control the PA outright, US aid to the PA should not be equated with aid to Hamas.
However, the current reconciliation agreement places equal power in the hands of Fatah and Hamas to both form an interim government and appoint ministers to serve in it. Also according to regulations of Treasury Department’s Office of Foreign Assets Control (OFAC), all it takes is for Hamas to have only an interest in PA transactions, instead of full control of the PA.

o A defense of aid to the unity government could be made based on an exception in the criminal code for those who provide “personnel,” “training,” or “expert advice or assistance” to an FTO if they have the approval of the secretary of state and the attorney general.
However, that exception only allows the US to give advice toPA security and police forces--not provide direct financial aid.

o The US could claim they will convince non-Hamas elements in the PA to make use U.S. funds without either the knowledge or participation of Hamas. Yet such a plan may not withstand legal scrutiny.
However, if the non-Hamas PA officials did not honor the agreement and Hamas accessed those funds, prosecutors could argue that those who provided the funds knew about and disregarded the risk--and such “willful blindness” could lead to criminal prosecution.

o The Obama administration could have OFAC grant specific exemptions, allowing the US to fund particular entities within the PA.
However, while OFAC did this in 2006, back then there were strong tensions between Hamas and Fatah which led to the Hamas bloody coup. Here,if indeed a unity government comes about, there will be a joint power-sharing government--making it more difficult to justify special exemptions.

o OFAC could delist Hamas or allow aid to the PA under a “general license.”
However, that would not remove the actual ban on providing “material support” to an FTO. Exempting Hamas from the ban on FTO support, would require either the secretary of state or Congress to revoke the designation of Hamas as an FTO, which is unlikely.
The article concludes that if the Obama would be unsuccessful in removing Hamas as a designated terrorist organization, their best bet would be through legislative action allowing the White House to support a Fatah-Hamas coalition.

Since it appears unlikely that Congress would support Obama to support the Hamas-Fatah unity government, if Obama is really determined to provide aid, he would need to remove Hamas from the terrorist list.

And that is the kind unilateral independent decision I can just see him making

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