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Stop Palestinian Aid Over Hamas? Not So Fast

Israel appears to be sending mixed signals to Washington on U.S. aid to the new Palestinian unity government. On one hand, the Netanyahu government wants everyone to know it’s furious over the new “reconciliation government” that Palestinian Authority leader Mahmoud Abbas has formed with the reviled terrorist organization Hamas. Officials from Prime Minister Netanyahu to Washington ambassador Ron Dermer have been declaring that the unity pact means “there can’t be business as usual.”

On the other hand, it’s not clear Israel that wants Washington to respond by cutting its financial aid to the Palestinian Authority. Jerusalem depends heavily on the PA security forces’ cooperation in fighting terrorism in the West Bank, and loss of funding could freeze their salaries and keep them home. In the longer run, the aid underwrites billions of dollars in PA governmental services from health to mail delivery and garbage collection that would fall on the Israeli taxpayer if the authority were to collapse under U.S. and international pressure.

Israelis who have met members of Congress in recent days say they’re hearing expressions of confusion over Israel’s mixed messages — that the new PA government is essentially a terror-backed group but that aid should not be cut.

Pro-Israel lawmakers and Jewish groups have been reciting a line that seems to represent a demand for ending aid, namely: “U.S. law is clear — no funds can be provided to a Palestinian government in which Hamas participates or has undue influence.” Those words appear in a pop-up on AIPAC’s website. A nearly identical phrase appears in a speech by Senate Foreign Relations Committee chairman Robert Menendez that’s touted on the American Jewish Committee website and elsewhere.

But that’s not the whole law. Deeper on the AIPAC website is a set of “key points” that states the entire relevant law:

U.S. law dictates that aid cannot be provided to a Palestinian Authority government that results from an agreement with Hamas and over which the group Hamas exercises undue influence, unless that government has recognized Israel, renounced violence, and accepted previous Israeli-Palestinian agreements. [emphasis mine]

Both parts of the law — “no aid to … Hamas influence” and “unless” — are in Congress’s annual budget bill, the Consolidated Appropriations Act (here’s the 2014 version — look for section 6070f). The law stipulates that in order to fund a Hamas-backed government, the president has to certify that the government “and all its ministers” have met the conditions spelled out in a 1961 law “as amended.” The amendment referred to is the Palestinian Anti-Terrorism Act of 2006, which spells out the tests they have to pass. They resemble the famous Quartet principles, which the AIPAC memo quotes.

Interestingly, the precise U.S. law — that is, the 2006 act — phrases the conditions rather differently. It requires that the government and its ministers

support a peaceful, two-state solution to end the conflict between Israel and the Palestinians in accordance with the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (commonly referred to as the “Roadmap”).

The law requires that if a Hamas government is formed, aid be suspended until the president provides the certification. It also says the president can waive the rule and continue the aid pending certification if he finds it to be in the interest of U.S. national security.

Technically, therefore, there isn’t a legal problem with the aid continuing. What there is, is another excellent opportunity for the Netanyahu government, the pro-Israel right and the Republicans to beat up on Obama for doing what Israel wants and needs him to do.

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