U.S. Policy Ramifications Of A Palestinian Unity Government Including Hamas

Funding:

• Section 7040 of the 2014 Consolidated Appropriations Act places limitations on U.S. assistance to the Palestinian Authority, including a prohibition on obligating any appropriated funds for “salaries of personnel of the Palestinian Authority located in Gaza or may be obligated or expended for assistance to Hamas or any entity effectively controlled by Hamas, any power-sharing government of which Hamas is member, or that results from an agreement with Hamas and over which Hamas exercises undue influence.”[1]
•  The Palestinian Anti-Terrorism Act of 2006 (PATA) amended the Foreign Assistance Act of 1961 to prohibit U.S. funds from going to Hamas, Hamas-controlled entities, or a power-sharing PA government that includes Hamas as a member, or results from an agreement with Hamas.[2]

o   PATA amends the Foreign Assistance Act of 1961 by adding Section 620L that outlines exceptions to the U.S. aid ban on a “Hamas-controlled” PA, including:[3]

•   Assistance to meet “basic human needs” such as water, food, and sanitation
•  Assistance to promote democracy – provided that it does not benefit Hamas
•  Assistance to members of the Palestinian Legislative Council
• “Other types of assistance” that the President deems is in the “national security interests” of the U.S.

o   Pursuant to PATA, the president can exercise a “national security waiver” of paragraph (2) subsection (a) which stipulates that a “Hamas-controlled” PA would have to make demonstrable progress towards purging all those with links to terrorism from its security services.[4] That waiver would apply to:

• The administration and security personnel of the president of the PA
• Activities of the President of the PA, including securing borders, fostering Middle East peace process, and promoting democracy
•  Assisting the Palestinian judiciary
•       The Consolidated Appropriations Act of 2014 allows for presidential waiver of the prohibition on funding a unity government in which Hamas is a member under Section 620K(e) of the Foreign Assistance Act of 1961.[5]

 Diplomatic Relations:

•  Pursuant to Section 9 of PATA, no U.S. government employee is allowed to negotiate with any member of Hamas before the group recognizes Israel, renounces terrorism, dismantles its terrorism infrastructure, and accepts all previous negotiated agreements with Israel.[6]

o   Depending on the U.S. government’s definition of Hamas’ participation in a Palestinian unity government, the activity of the United States Coordinator for Israel and the Palestinian Authority (USSC) might be restricted under Section 9 of PATA.

•  Although Hamas is not joining the PLO, there have been reports suggesting that Hamas members might join the Palestinian Legislative Council (PLC) and that Hamas Prime Minister Isma’il Haniyeh might serve as PLC speaker.[7] If that should happen, the U.S. government might define Hamas’ involvement in the Palestinian Authority in such a way that could adversely affect the PLO Delegation to the U.S. in Washington, DC.

o   Section 7 of PATA outlines a prohibition, subject to presidential waiver, on all Palestinian Authority representation in the U.S., such as offices or headquarters, if the PA is not in compliance with Section 620K(b) of the Foreign Assistance Act of 1961.[8]

Training:

• Designation as a Foreign Terrorist Organization by the U.S. Department of State prohibits any U.S. citizen from providing the entity with “material support or resources.”[9] The term “material support or resources” is defined in 18 U.S.C. § 2339A(b)(1) to include training, and a later section of the code specifies that “the term ‘training’ means instruction or teaching designed to impart a specific skill, as opposed to general knowledge.”[10]
• Pursuant to PATA, the president can exercise a “national security waiver” of paragraph (2) subsection (a) which stipulates that a “Hamas-controlled” PA would have to make demonstrable progress towards purging all those with links to terrorism from its security services.[11] This can be applied to the administration and security personnel of the president of the PA, effectively allowing for the possibility of Hamas members serving in the U.S.-funded PA presidential security forces.

Financial Services:

• Designation as a Foreign Terrorist Organization by the U.S. Department of State also prohibits any U.S. citizen or financial institution from providing the designated entity any financial instruments, financial securities, and services.[12] Additionally, U.S. institutions that become aware of their possession of funds of a designated FTO must report to the Office of Asset Control at the U.S. Department of the Treasury.[13]

o   Depending on how the U.S. government defines Hamas’ participation in a unity government, U.S. banks could be prohibited from dealing with the Palestinian Authority that includes a designated FTO.

• Under Section 8 of PATA, the president can direct all U.S. representatives at international financial institutions to “use the voice, vote, and influence of the United States” to prohibit funding to a Palestinian Authority not in compliance with Section 620K(b) of the Foreign Assistance Act of 1961.[14]

Travel Restrictions:

•  Pursuant to Section 5 of PATA, officials of a Hamas-led Palestinian Authority that does not comply with Section 620K(b) of the Foreign Assistance Act of 1961 will be denied visas to the U.S., with the exception of the President of the PA and his representatives, as well as members of the PLC who are not affiliated with Hamas.[15]
•  Section 6 of PATA confines the travel of officials representing a Hamas-led Palestinian Authority that does not comply with Section 620K(b) of the Foreign Assistance Act of 1961 at the United Nations to a 25 mile radius of the UN headquarters.[16]

Trade Restrictions:

• Pursuant to Section 4 of PATA, the territory of a Hamas-controlled Palestinian Authority that does not comply with Section 620K(b) of the Foreign Assistance Act of 1961 will be deemed “a sanctuary for terrorists or terrorist organizations” by the U.S. government under Section 6(j)(5) of the Export Administration Act of 1979.[17] This would trigger export controls on trade with the Palestinian Authority.