Congress Must Oversee Renewed Assistance to the Palestinians

The Biden administration this week restarted assistance to the Palestinian Authority (PA). The new direct assistance to the Palestinians includes $75 million in economic and development assistance in the West Bank and Gaza and $10 million for peacebuilding programs through the U.S. Agency for International Development (USAID), on top of roughly $15 million provided last month for COVID-related assistance. The funding comes very close to, but does not appear to violate, statutory restrictions on U.S. assistance to the Palestinians.

The three major restrictions on Palestinian assistance are the annual State and Foreign Operations Appropriations Act (SOFAA), the Palestinian Anti-Terrorism Act (PATA), and the Taylor Force Act (TFA).

SOFAA has historically conditioned aid to the West Bank on the establishment and maintenance of proper vetting and oversight measures. The law also prohibits direct assistance to the PA unless certain benchmarks are met. None of the Biden administration aid package is to be allocated directly to the PA. Still, questions should be raised as to whether adequate oversight measures are in place.

PATA prohibits assistance to the PA unless the administration certifies that “no ministry, agency, or instrumentality of the Palestinian Authority is effectively controlled by Hamas.” To achieve that objective, the law places additional restrictions on West Bank aid. Given that Hamas is not part of the PA, these restrictions do not currently apply. However, that could change on May 22, when the Palestinians will hold legislative elections.

The restrictions in TFA may come closest to prohibiting the Biden administration’s assistance package. TFA prohibits assistance that “directly benefits” the PA unless it ceases its payments to incarcerated Palestinians convicted of terrorist activities.

The term “directly benefit” was defined by President Donald Trump’s State Department in May 2018 and was recently acknowledged by President Joe Biden’s State Department. The key questions include whether the PA is the direct recipient of the assistance; whether the assistance involves payments by PA creditors; whether the PA owns or controls an entity or individual that is the primary beneficiary or end user of the assistance; and whether the assistance or services provided directly replace assistance or services the PA would otherwise provide.

The emphasis on infrastructure in the Biden assistance package may constitute a violation of TFA, but it will depend entirely on the nature of the specific projects and associated implementors. This is something Congress should review.

The administration did not appear to violate these restrictions. Still, critical questions remain about the overall package, specifically the State Department’s oversight and vetting mechanisms. The congressional notification for the assistance package declares that USAID deploys “rigorous partner-anti-terrorism vetting and certification, auditing, and monitoring procedures to help ensure that its assistance does not go to Hamas or other terrorist organizations.”

USAID dramatically scaled back or discontinued operations in the West Bank and Gaza in recent years because of Trump administration policies. It is unclear what procedures are in place. These concerns were recently noted in a Government Accountability Office report.

Another question surrounds the Biden administration’s use of a little-known legal mechanism in Section 7058(a) of the fiscal year 2020 SOFAA that allows for global health assistance without restrictions. The administration notes that it is relying on this mechanism “as necessary and applicable.” This is vague and potentially problematic. Congress should request a list of allocations for which the application of that clause is invoked.

With more allocations possibly coming in the future, Congress must closely scrutinize this assistance package and provide guardrails to ensure that the administration does not violate the law.

Matthew Zweig is a senior fellow at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Economic and Financial Power (CEFP). For more analysis from Matthew and CEFP, please subscribe HERE. Follow the author on Twitter @MatthewZweig1. Follow FDD on Twitter @FDD and @FDD_CEFP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.