The Anti-Defamation League has emerged as a supporter of controversial legislation targeting boycotts of Israel. But internal ADL documents obtained by the Forward show that the organization’s own staff believed the laws could actually harm American Jews.
In the summer of 2016, ADL staff wrote an internal memo arguing that legislating against the boycott, divestment and sanctions movement was a really bad idea. “Simply put, ADL does not believe that anti-BDS legislation is a strategic way to combat the BDS movement or defend Israel and is ultimately harmful to the Jewish community,” the memo reads. It calls anti-BDS laws “ineffective, unworkable, unconstitutional, and bad for the Jewish community.”
Yet in the two years since the memo was written, the ADL has vigorously supported anti-BDS legislation, including one bill currently moving through the U.S. Congress, and some of those that have passed in statehouses across the country.
Civil liberties groups, including the American Civil Liberties Union, have called the proposed legislation, the “Israel Anti-Boycott Act,” unconstitutional. The ADL, on its website, asks supporters to lobby their representatives to support its passage.
The memo from the summer of 2016 reveals a stark division within the ADL between the analyses provided by the organization’s professional staff, and the path taken by its board and CEO.
It also illustrates the delicate balance the organization has struggled to strike since the departure of former national director Abraham Foxman between critics on the right who accuse it of liberal bias, and critics on the left who condemn what they see as an insufficient commitment to civil rights.
“My impression is that it’s designed to bolster their credentials among the Jewish right,” said Joshua Shanes, a professor of Jewish studies at the College of Charleston, of the ADL’s support for some anti-BDS legislation. “I’m assuming that it’s a combination of concern about losing donors on the right, and some level of sympathy.”
The ADL did not respond to multiple requests for comment on two internal ADL documents obtained by the Forward, the texts of which the Forward provided to the ADL. It also did not respond to questions about its current positions on anti-BDS laws.
After this article was published, the ADL provided the following statement: “As with most organizations, ADL routinely has robust internal discussions about various policy positions. On the issue of opposing BDS, our stance has been made perfectly clear and is a top priority of ours.”
The anti-BDS bill moving through Congress appears to be close to passing. Technically an update of 1970s-era legislation that bans U.S. companies from participating in a boycott imposed by another country, the new act would ban participation in boycotts fostered by international organizations. It is particularly intended to target efforts from the U.N. Human Rights Council and other groups to boycott companies doing business in the West Bank.
Its supporters are trying to get it through before the end of the year as part of a spending bill, according to a report in The Intercept. First introduced in 2017, the bill has been a major legislative priority for the American Israel Public Affairs Committee, and other Jewish groups, including the ADL, have added their support. It has faced opposition from civil libertarians.
Local anti-BDS laws, meanwhile, have passed in 26 U.S. states. These measures generally seek to keep state governments from doing business with companies that participate in a boycott of Israel. Federal courts have overturned a handful of the laws, amid challenges brought by civil liberties groups that say they restrict First Amendment rights.
The two internal ADL documents obtained by the Forward were drafted by staff members in the summer of 2016, at a time when ADL regional offices were fielding requests from other Jewish groups to work together on passing state-level anti-BDS laws. ADL was also under criticism from right-wing Jewish groups, particularly the Zionist Organization of America, for opposing some of the anti-BDS bills.
The documents attack the anti-BDS laws as unconstitutional, bad policy, and generally bad for the Jews. The first document, titled “ADL’S POSITION ON ANTI-BDS LEGISLATION,” says that the anti-BDS laws are bad for American Jews, diverting “community resources to an ineffective, unworkable, and unconstitutional endeavor instead of investing in more effective multi-layered strategies.” It says that bills raise the profile of the BDS movement while giving “the appearance that the Jewish community exercises undue influence in government.”
The memo argues that the model many state-level laws have followed, of identifying companies that boycott Israel and then banning financial ties between them and state governments, was unworkable, since it would be difficult to prove why a particular company wasn’t doing business with Israel.
It says that government investigation into the reasons why a particular company isn’t doing business with Israel “would represent a significant government intrusion.”
It goes on to argue that a decision to boycott a country, “as despicable as it may be in the case of Israel,” is constitutionally protected as a form of political speech.
“Anti-BDS bills often are portrayed as ‘McCarthyistic’ attacks on free speech and democratic values,” the document reads. “In turn, they give more attention to BDS supporters and turn them into First Amendment martyrs.”
A person familiar with the matter, who asked not to be named to protect relationships, said that people from a number of ADL departments collaborated together on the documents, which were intended to provide internal guidance to ADL staff. The person said that the ADL’s national director, Jonathan Greenblatt, was unhappy with the documents’ conclusions, and the person does not believe the documents were ever circulated.
At the time they were drafted, the ADL’s public posture on anti-BDS bills was changing dramatically.
In 2015, when the push for anti-BDS bills first picked up steam, the ADL was a staunch opponent of the efforts. Foxman, the organization’s former national director, in an op-ed published in his last months at the helm, publicly condemned anti-BDS laws.
“The appeal of such legislation is understandable,” Foxman wrote of the anti-BDS bills. “Magic wands, however, are just that — magical. They give one the feeling of control and power, but they are not real.”
Greenblatt substantially changed the organization’s approach to the issue. In the summer of 2016, just as the internal memos were drafted, the ADL’s public position on the legislation had turned confusing and self-contradictory.
On the one hand, Greenblatt, told the Forward that summer that he believed that some anti-BDS legislation enacted recently on the state level was vulnerable to First Amendment challenges.
At the same time, in June, he praised New York Governor Andrew Cuomo for his anti-BDS executive order, which was condemned by civil liberties groups.
“We simply have made it clear that ADL will not stand in the way of anti-BDS legislative efforts, and will praise lawmakers who stand up to defend Israel,” Greenblatt told the Forward at the time.
Yet the documents indicate that inside the organization, key staff members were not on board.
The second 2016 document obtained by the Forward, written as an internal FAQ on the ADL’s position on BDS, says that politicians should be told that anti-BDS legislation is “harmful to the Jewish community.”
“ADL believes that you can applaud legislators or other elected officials for standing with Israel and condemning BDS efforts,” it reads. “However, anti-BDS legislation is ultimately harmful to the Jewish community. Efforts should be made to educate legislators and others about why anti-BDS legislation is harmful to the Jewish community and undermines efforts to meaningfully combat BDS.”
Since his ascension to Foxman’s post, Greenblatt has battled allegations from right-wing groups and conservative Jewish critics that he was steering the ADL in a partisan liberal direction. Greenblatt has been unsparingly critical of the Trump administration, and made criticism of Trump policies a hallmark of his leadership.
Yet on anti-BDS laws, he has fallen in line with some of his conservative critics.
In September 2017, Greenblatt co-authored a Washington Post op-ed supporting the Israel Anti-Boycott Act, arguing that it would not restrict free speech. In his op-ed, Greenblatt wrote that concerns about the bill were “unfounded.”
The ADL did not respond to a request for comment on its current position on the act. On its website, it encourages supporters to send their senators an email that ends: “Your support for the Israel Anti-Boycott Act would send a clear message that internationally-motivated boycotts against Israel are unacceptable to the United States.”
Yet civil liberties groups, led by the ACLU, have raised consistent concerns about the bill, even after it was rewritten earlier this year to remove the possibility of jail time for those who broke the law.
“When boycotts are politically motivated, they are protected as free expression under the constitution, and that’s why the ACLU opposes this bill,” Kate Ruane, senior legislative council at the ACLU, told the Forward. “The government is just not permitted in the U.S. to disfavor one side in a political debate.”
Update: This story has been updated to include a statement provided by the ADL after the story was published.
Josh Nathan-Kazis is a staff writer for the Forward. He covers charities and politics, and writes investigations and longform.