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The Sly Effort to Criminalize the BDS Movement in the U.S.

What would you do if you were Palestinian? In 1998, Ehud Barak, then in the running to become Israel’s next prime minister, said that if he were a young Palestinian he “would have entered one of the terrorist organizations and fought from there”—a statement that became a flashpoint in the campaign (which Barak went on to to win). Of course the moral problems with killing innocents are obvious, which is one reason terrorism is seldom effective as a political tactic. Yet the fact that Barak’s candor didn’t sink his political career suggests an underlying Israeli understanding of why Palestinians fight to retain their land.

But if you don’t want to kill random Israelis, what avenues of struggle for Palestinian independence are available? In the occupied West Bank, peaceful protests against Israeli land seizures typically are met with tear gas, skunk spray, rubber bullets, and arrests. The United States generally shields Israel from UN criticism.

That leaves the most recent peaceful Palestinian-led tactic—BDS, or the Boycott Divestment and Sanctions movement, which was initiated twelve years ago. It seeks to build an international boycott of Israel, its private and public emissaries, and its products. BDS is modeled on the campaign against apartheid South Africa, which succeeded in isolating the Pretoria government until it was forced to accede to most of the ANC’s negotiating demands. And, while BDS  hasn’t been successful in harming Israel’s economy—which is booming and hardly paused in the 2008 recession—it has made a splash on American and European campuses, and has become a focal point for criticism of Israel. BDS worries Israelis, and some of their American supporters, because despite its flaws it seems to be growing.

The most salient criticism of BDS comes from figures who are themselves critical of Israel. Norman Finkelstein, who has few peers among American scholars in documenting the crimes Israel has inflicted on Palestinians, is one forceful opponent. He notes that BDS seeks not merely the end of Israeli occupation but the unimpeded return of Palestinian refugees and their descendants to Israel; not a negotiated return or compensation, not a sovereign Palestinian state on the West Bank, but rather promotion of the “rights” of return of all refugees. This is an indirect but quite clear way of saying that Israel has no right to preserve itself as a Jewish-majority state or to control its borders. No Israeli politician is likely to agree to this, (regardless of how popular open borders have become among American liberals) and Israelis rightly see such a demand as a blueprint for the end of Israel. In this sense BDS marks a step backward from the huge concession made by the PLO under Yasser Arafat: Palestinian recognition of Israel in return for a Palestinian sovereign state.


Unfortunately that grand bargain, the implicit basis for the Oslo peace negotiations of the early 1990s and the famous Arafat-Rabin handshake on the White House lawn, was never fulfilled. Since the handshake, Israel has moved half a million settlers into the West Bank occupied territory, making a two state solution difficult to implement, to say the least.

This capsule history explains why BDS arose and why it is gaining ground in both America and Europe. It explains also why this boycott strategy won’t be the basis for a realistic diplomatic solution.

But in the meantime BDS’s advances worry Israel and its most uncritical U.S. supporters. Benjamin Netanyahu has called the movement an “existential threat.” Early this year AIPAC (America’s main pro-Israel lobby) has actually helped draft a bill (S. 720), The Israel Anti-Boycott Act, which mandates civil and criminal penalties for participating in an anti-Israel boycott. The ACLU, which usually steers clear of any implicit criticism of Israel or its lobby, has denounced the legislation [1], saying its impact “would be antithetical to free speech protections enshrined in the First Amendment.” There is a complex legal debate [2] about how damaging this legislation would be to the basic rights of American citizens basic rights.  

Some supporters of the legislation claim it is little more than an elaboration of longstanding American efforts to counter the longstanding economic boycott of Israel by Arab countries. But the authoritarian spirit in which anti-BDS laws are likely to be enforced can be seen [3] in the campaign of a Long Island assemblymen to prevent Roger Waters (the rock musician who is a BDS supporter) from performing at Long Island Coliseum.

Given the relative hardiness of the free speech culture in the United States, it is not surprising that the anti-BDS crowd has sought to advance its legislation under the radar. In writing about the bill last week [4], New York magazine columnist Andrew Sullivan noted the remarkable stealth in which it gained bipartisan sponsorship in the Senate:

Look: I’m not in favor of boycotting Israel when we don’t boycott, say, Saudi Arabia. But seriously: making it illegal? Every now and again, you just have to sit back and admire the extraordinary skills of the Greater Israel lobby. You’ve never heard of this bill, and I hadn’t either. But that is partly the point. AIPAC doesn’t want the attention — writers who notice this attempted assault on a free society will be tarred as anti-Semites (go ahead, it wouldn’t be the first time) and politicians who resist it will see their careers suddenly stalled. I doubt a single sponsor of this bill will go on the record to oppose it (so far, none has). That’s how complete the grip of AIPAC is. And pointing out this special interest’s distortion of democracy is not the equivalent of bigotry. It’s simply a defense of our democratic way of life.

Arguing that the criminalization of political activity is the hallmark of authoritarianism, Sullivan asked his readers to imagine the liberal outrage if Trump had proposed it.

Happily, the flight towards turning this profoundly illiberal measure into law is encountering at least some resistance. New York Senator Kirsten Gillibrand, sometimes touted as a future presidential contender, had been one of S720’s first co-sponsors. But, when confronted about her stance at a town hall meeting, she agreed to reconsider her sponsorship. Last week she announced she couldn’t support the legislation in its current form—a rare instance of a prominent politician allowing some daylight between herself position and AIPAC on a major issue.

Even those who oppose BDS as a political tactic should consider it shameful that U.S. senators automatically sign on to AIPAC-drafted legislation, often without even being aware [5] of what is in it. Maryland Senator Benjamin Cardin, another of S720’s cosponsors, apparently was unaware the bill he was cosponsoring called for criminal penalties on those targeted.

BDS advocacy on American campuses obviously isn’t going to destroy Israel. But if Israel is truly worried losing ground in Western public opinion, it has a perfectly good option available: resurrect the Oslo consensus, which remains the existing international consensus on Israel and Palestine. Every American president since the Israeli occupation and before Donald Trump has opposed the building of Israeli settlements on the West Bank. The idea has been that Israel should stop its settlement enterprise; offer the Palestinians a viable, contiguous state in the West Bank and Gaza (with some equitable land-swaps if and where necessary and appropriate); offer fair compensation to the millions of Palestinians Israel has displaced; demand in return recognition of Israel’s legitimate place in the region by the Palestinians and the wider Arab world. BDS may well be conceived and supported by some who don’t want Israel to exist at all. But support for it would dry up overnight if the occupation ended and Palestinians had their own sovereign state.

Scott McConnell is a founding editor of The American Conservative.

60 Comments (Open | Close)

60 Comments To "The Sly Effort to Criminalize the BDS Movement in the U.S."

#1 Comment By Argonne18 On August 9, 2017 @ 10:41 am

The oath taken by every Congressman is to preserve and protect the Constitution against all enemies foreign and domestic. Now 50 senators and over 200 Representatives have publically proclaimed their willingness to sacrifice the God given First Amendment right of freedom of speech to exercise peacefully our right to protest with our own money. They brazenly proclaim their willingness to sell out the rights of 300 million Americans in favor of taking payoffs from a highly affluent, highly organized, group of people making up less than 2% of the population whose loyalty is to a foreign government. Is there a parallel to this anywhere in history? They, the Jewish lobby , own us. The yiddish term for non-Jews is “goyim”. That translates to cattle, or livestock. Can you moo, moo…I knew you could. Get used to it.

#2 Comment By pensword On August 9, 2017 @ 2:16 pm

Whine Merchant:

Wow – we usually don’t see Bibi’s sock puppets on TAC. This really hit a sensitive spot –

They’re organized to descend en masse upon discussions of this variety. I’ve been observing it for over two decades now. They’re as reliable as clockwork.

And impressive, no doubt. Such militant cohesion is one of the primary factors driving their resilience for thousands of years while other peoples have fallen by the proverbial wayside. We’re not talking about some schmucks who worked out a program for survival within the last century alone.

And we Americans, for whom the transgressions of contemporary zionism have become all too painfully obvious and demand closure, remain weak and abased in attempting to affect necessary change in this conflict precisely because we don’t learn from the success of the Lobby: organized fronts work.

Forget the anticipated howls of “Nazi!” and “anti-Semite!” Inure yourself to the shrill caterwauling that follows any criticism of Israel, however legitimate. Call your congressman. Register your disdain. Make your voice known.

You can bet that they are. And if we don’t, we don’t matter.

It’s the least we can do.

#3 Comment By Blake On August 9, 2017 @ 3:29 pm

Time to right this 70 yr wrong. Free Palestine once and for all

#4 Comment By Kick Them Out On August 9, 2017 @ 4:34 pm

Any senator or congressman who put his or her name to this bill has blatantly violated their oath of office and should be removed from it.

#5 Comment By Eileen Kuch On August 9, 2017 @ 7:07 pm

This effort to criminalize BDS boycotts of Israel not only violates the 1st Amendment of the US Constitution, it violates International law. Any senator or congressman who puts his/her name on this bill had, indeed, violated their oath of office and need to be removed.
The Founding Fathers must be spinning in their graves by now .. They risked everything – wealth, freedom and even their lives so that succeeding generations of Americans would live in freedom and security.
“Those that would give up Liberty for a modicum of Safety deserve neither Liberty nor Safety.”
~ Benjamin Franklin

#6 Comment By chris On August 10, 2017 @ 8:24 am

arrest all those who want to criminalize BDS they forget they work for american taxpayers NOT israel. fire them and divest them of any pension funds and ill gotten gains,bribes,they have accumulated.

#7 Comment By MEOW On August 10, 2017 @ 10:16 am

The debate is revealing. The pro-Israel forces have trotted out the usual litany of defenses: anti-Semitism, why should Israel give back land captured in a war (their preemptive war of aggression in 1967), no one else has (not true)? the issue of American First Amendment rights is not worthy of note, especially when Israel’s theocratic expansion and subjugation of others is at stake. The song goes on and on. Opposing this the focus is to defend our own hard won domestic rights and stop obliterating our rights for a very foreign country that feels it has the right to meddle in every aspect of our national endeavor. Americans, regardless of the continual untruths and mismanagement of information by main stream media, have stopped drinking the Kool-Aid that has cost us trillions and aligned us with policies diametrically opposed to what we should be doing. This debate should be a no-brainer. Not so. It is happening and in a conservative American journal. Bravo! Bibi’s use of brute political power to address the U.S. Congress to show how he discounted a sitting U.S. president may have been the high-water mark for the Israeli “invasion” of the U.S.? You can fool some of the people some of the time, not all the people all of the time.

#8 Comment By An Unknown Soldier On August 10, 2017 @ 2:15 pm

@Maryland Cartographer … “But most trads and paleocons distrust Israel even more than they distrust the UN. For good reason, too – the American taxpayer is forced to pay more money to Israel every year than to the entire UN. And Israel meddles in and hacks American elections and domestic politics much more than the UN.”

“Meddle”? “Hack”?

For God’s sake, look at what we’re talking about: Israel is literally trying to write and pass American laws! What the hell is going on here?

#9 Comment By Primustultorus On August 13, 2017 @ 8:32 pm

The Palestinians are Semitic. The Ashkenazi are not.

#10 Comment By Brendan On August 13, 2017 @ 9:45 pm

This may well presage a major assault on Constitutional Freedom of Speech protection;
that the government may not restrain free speech. However, sadly, as the organized jewish power entity in virtual control of the US has many and always adding more secrets that do want the host folk to know the truth about they have been progressively setting the stage for major incursion into the First Amendment because they want to use the US government to silence political and otherwise criticism both speech and action
deemed not favorable to jewish interests. That is whay they introduced the notion of “hate crimes”, which includes ‘hate speech’ hich is being used as a wedge in the door of freespeech pprotection. The ADL had a contest at the Jewish university on Long Island NY in the summer 2008 and nvited lawers and law students to proffer ideas for how to make an incursion to limit the 1st Amendment free speech protection. Submissions had to include legal rationales; and the ‘hate speech’ meme won the day and the $3000 prize and the rest is ongoing history. The list of Senators who signed on to be co-sponsors, I’d bet were /are most of the Senators who are Jewish by identity, albeit many may have goy facades so it wont look like the Senate is a Jewish Club. But this is jewish assault on Americans sponsored by an agency of a foreign country which has attacked us several times The USS Liberty, The Lavon Affaire and 9-11 but shhhsh on the last item. JFK and RFK were determined to make the AIPAC entity register as a representative of a foreign government interests [which it is] and JFK was determined to stop Israel’s making nuclear bombs and submit to inspections by the international agency just like Iran has faithfully done for so many years. They were both murdered. Jewry is famous for boycotts and their boycott of Germany which they announced in 1933 was actually the commencement of WW II. But jews were very aggressive about the boycott at least in the US -it was an internat’l boycott- especially in NYC. Germany was still in the mire of the Great Depression. Israel has locked the Palestinian people into a deathly Gulag [a great invention of the Jews of the USSR before they set off to colonize Palestine
and start genociding the people there not unlike in the USSR, come tot think of it. The terrible specter now rising in the US Senate is a major assault by the organized jewish power entity which controlls the media as well on the rights of Americans especially the White Americans who are concurrently being made into a minority by 5 decades of Senate action supporting massive non-White immigration while disallowing White folk immigrants except in a wee percent annually. If the Judaic Senators are dropping their masks it means the Israel entity is demanding it. Israel gets all the electronic communications of Americans , and for years past, from the NSA as a routine; NSA illegally obtained raw data sent to Israel. What good are laws if the government does not feel inclined to respect them. And an important question we must ask is Why is the Interests of the arguably-Rogue nation of Israel more important than the interests of the American people to the US Senators/the Senate? What does that mean? Isn’t that TREASON? But as noted, who cares about any law if the government at top level is disinclined to enforce it/them. Rogue Senate.