HR. 4681 Amendment in the nature of a substitute

We support the intent of HR 4681 and note that it tracks closely with the Administration's plans on delivering humanitarian aid to the Palestinian people. The Administration greatly appreciates the efforts of the House International Relations Committee to eliminate certain of the original bill's more onerous provisions. More generally, though, the bill is unnecessary as the Executive branch already has ample authority to impose all its restrictions and it constrains the Executive's flexibility to use sanctions, if appropriate, as tools to address rapidly changing circumstances.

Specifically, in order to support the bill, we would need added flexibility to provide support for President Abbas and for non-Hamas Palestinian institutions as described below.

In addition, the Administration finds objectionable: (1) the mandatory nature of the bill's sanctions on aid to the PA and for the West Bank and Gaza (WB/G) and on related activities absent an unachievable certification; these should be permissive sanctions; (2) the lack of general waiver authority for its key ban on assistance to the PA; we welcome the exceptions from both the PA and WB/G bans; (3) the codifying into permanent law the bans on PA and WB/G aid; these should be time-limited; and, (4) other mandatory sanctions that remain objectionable.

Additional revisions are needed to avoid unduly hampering the President and the Secretary of State in formulating and executing policy with respect to the PA versus the Palestinian people. We look forward to working with Congress to improve this bill as it moves through the legislative process.

Ban on aid to the Palestinian Authority (Sec. 2).
- The Administration appreciates the exceptions permitting assistance in certain instances. However, these exceptions, which operate in a manner comparable to a waiver authority with Presidential determinations, require an onerous 30-day preconsultation period. Also, they are not sufficiently broad to capture the unpredictable circumstances that may warrant a waiver of the assistance bans. Therefore, additional flexibility is needed either through exceptions or a general waiver authority, which would permit waiving the ban in the national security interest without a lengthy preconsultation period.

- Additional exceptions expected to be needed include those for (i) broader aid for the President and his office to ensure he can fulfill his duties as President, prevent Hamas from taking over the rest of the PA and the PLO, and prevail in any confrontation with Hamas; (ii) other contingencies, e.g., to help the President maintain control of the management and security of border crossings; and, (iii) support to non-Hamas controlled elements of the PA, e.g., the judiciary, municipalities, Palestinian Monetary Authority. Exceptions for democracy and governance activities, activities which Israel may wish us to support, would also be useful.

- The Administration also requests that the ban be re-crafted to more suitably apply to only Hamas-controlled elements of the PA, not as it currently does to all members of the Palestinian Legislative Council (PLC) including those that are not part of Hamas, the President, and agencies and independent instrumentalities that are not controlled by Hamas but may be viewed as part of the PA.

Extended ban on aid to the PA (Sec. 2). The Administration objects to this provision because it extends the ban to reach unexpended balances. The Administration requests that this language be deleted.

Waiver for the ban on aid to NGOs for the West Bank/Gaza (Sec. 3). The Administration is concerned with the 25 day consultation period before the waiver takes effect. Also, the exception for "basic human health needs" is too narrow and should be broadened to "basic human needs," in order for the exception to cover essential aid and services for the Palestinian people, not just those limited to health.

Marking requirement (Sec. 3). The Administration appreciates the bill's exceptions from the requirement to mark assistance and the exception that was added where the requirement would have a "material adverse effect on implementation" of such assistance. Marking, however, although used in the West Bank/Gaza as a matter of policy, should be permissively authorized not mandated.

UN Withholding (Sec. 4). The Administration appreciates that the original language was usefully amended to be a permissive authority (the Secretary "is authorized to withhold"), and to now require only that the President audit and make recommendation to Congress on reducing duplicative UN Israeli- Palestinian related-entities; however, as noted below, the latter poses constitutional concerns.

Visa ban (Sec. 6). The Administration appreciates the language included in the substitute, which lowers the waiver from "vital" to "important" to the national security interest, as well as the exception that was added for attendance at the UN. The ban, however, remains overbroad in that it applies equally to PA reps that are not affiliated with Hamas, as well as those that are. It does not have exceptions for the office of President Abbas; imposes a burdensome procedure for overcoming the ban in order to issue a waiver that is not consistent with existing, ample authorities under the Immigration and Nationality Act; and presents operational challenges (e.g., existing visas).

PA representation ban (Sec. 8). The substitute added "vital" to the national security interest waiver, which has to be renewed every 180 days; it would be preferable if the waiver could endure longer.


International Financial Institutions (Sec. 9). The Administration objects to a mandatory policy that prescribes how the US votes in the international financial institutions. Besides raising constitutional concerns highlighted below, such mandates limit the flexibility of the Administration to advance important US economic policy positions. The U.S. can be more effective in the IFIs when its position on policies and projects is not predetermined by legislative mandates. The U.S. loses its leverage to improve outcomes if it is perceived to be operating under inflexible legislative mandates.

Constitutional concerns. Finally, the Administration remains concerned that several of the bill's provisions infringe upon the President's constitutional authority to conduct the Nation's foreign affairs. These include, most notably Sections 2, 9, and 10, all of which purport to mandate U.S. policy by providing that it "shall be the policy of the United States." not to aid the PA broadly, to vote against the PA in IFIs, and to refrain from contacts with the PA, respectively. Sections 4 and 7 are constitutionally problematic, the former by stating that the Secretary "shall make recommendations" and that the President "shall" seek implementation of those UN reform recommendations, and the latter by requiring the President to restrict travel of foreign representatives. In all these provisions "shall" should be replaced with "should". Section 6(a) (prohibiting the issuance of visas) and Section 8 (banning PA representation) could be construed as limiting the President's constitutional authority to receive Ambassadors and other public ministers and to conduct the Nation's diplomacy, and if so construed would be unconstitutional.