Congress must move quickly to fix the Anti-Terrorism Clarification Act

In a perversely ironic turn, a law intended to aid American victims of international terrorist attacks will strike a serious blow to counterterrorism cooperation that keeps Israelis (and Americans visiting Israel) safe.

The Anti-Terrorism Clarification Act (ATCA) will take effect on February 1. Unless it is adequately amended or repealed before then, the law will damage Israeli national security and U.S. foreign policy toward the Israeli-Palestinian conflict. Time is short, and Congress must take action.

ATCA was passed with little fanfare, by unanimous consent in the House and Senate, and apparently absent an understanding of its foreign policy implications. The law’s aim is to assist American victims of international terrorism in securing, through U.S. courts, monetary damages from entities alleged to have aided and abetted terrorist attacks.{mosads}

It was the outcome of lawsuits against the Palestinian Authority and Palestine Liberation Organization (PLO), like Waldman v. PLO, that drove the most consequential provision in ATCA. In Waldman, a district court awarded the plaintiff $655.5 million (triple the damages suffered), only to have a circuit court rule on appeal that the court lacked personal jurisdiction over the PLO. To address this perceived flaw, Section 4 of ATCA stipulates that a defendant consents to personal jurisdiction if it accepts the types of aid the U.S. government has given the PA: most importantly, economic support funds (ESF) and international narcotics control and law enforcement (INCLE) aid.

Recognizing that future acceptance of U.S. assistance could bankrupt the Palestinian Authority through litigation, Palestinian Prime Minister Rami Hamdallah informed Secretary of State Mike Pompeo that the Palestinian Authority will decline U.S. aid when ATCA takes effect. Comparing the $665 million judgement in Waldman (equivalent to 13 percent of the Palestinian Authority’s 2018 budget) to $60 million in security funding it receives from the U.S., its decision was obviously inevitable.

So, ATCA will not achieve its purpose of enabling terror victims to collect money from the Palestinian Authority or PLO through litigation. Since the Palestinian Authority has foresworn U.S. aid, courts still won’t have personal jurisdiction over it.

Meanwhile, ATCA will harm Israeli security, given an end to INCLE funding for the Palestinian Authority and the termination of the U.S. Security Coordinator. Under US supervision since 2005, the Palestinian Authority Security Forces (PASF) have transformed into a professional and effective entity that works closely with Israel to maintain law and order in Palestinian cities and foil terrorism. Israeli security chiefs are unequivocal about the importance of this security coordination. In remarks to the Israeli cabinet earlier this month, outgoing Israeli army chief of staff Lt. Gen. Gadi Eisenkot urged the government to strengthen the PASF. Belatedly, the Israeli government has weighed in with the Trump administration, asking for an ATCA fix to preserve security coordination, “a top priority Israeli national security interest.”{mossecondads}

ATCA will also undermine U.S. foreign policy vis-à-vis the Israeli-Palestinian conflict. Neither President Trump nor subsequent presidents will be able to use aid as a tool to facilitate future Palestinian-Israeli peace. Meanwhile, as the U.S. Agency for International Development prepares to lay off local staff and abandon nearly completed infrastructure projects in the West Bank, the Palestinian people will suffer. American interests are harmed, too, when worsening Palestinian quality of life fosters extremism and a hardening of attitudes toward the U.S. and Israel.

Compounding its deleterious impact, ATCA may apply to foreign states, impacting allies in the Middle East (think of Egypt and Jordan) and beyond. It could also apply to humanitarian NGOs. 

Members of Congress are working with the Trump administration on a fix. A number of options are available. The best choice is revocation of Section 4, which triggered this crisis while failing to help terrorist attack victims. A national security waiver for the President is another possibility. It is suboptimal since President Trump slashed ESF funding to Palestinians before ATCA and appears unlikely to reinstate it, though a future president could. Exempting only INCLE funding is better than nothing, but would transmit the message to Palestinians that the U.S. cares only about Israeli security and not their welfare. (They are complementary; we must care about both.)

If Congress cannot engineer a fix by January 31 — a real danger, even likelihood — Congress must at minimum delay ATCA’s implementation. This time bomb is ticking, and if Congress can’t defuse ATCA in time, it must at least reset the clock.

Dr. Debra Shushan is the Director of Policy and Government Relations at Americans for Peace Now. She was previously a professor of Middle East politics at the College of William and Mary. Follow her on Twitter @ShushanAPN.