The omnibus spending bill that Congress is expected to pass this week contains something for which many experts and government staffers have been clamoring for over a year; namely a fix to the Anti-Terrorism Clarification Act. ATCA, which passed by unanimous consent in October 2018, subjected the Palestine Liberation Organization and the Palestinian Authority to personal jurisdiction in U.S. federal courts – opening them both up to bankruptcy arising out of past terrorism suits from the Second Intifada – if the Palestinians accepted any funds from the U.S. government.

While the Trump administration had by that point cut nearly all funding going to the West Bank and Gaza, from the East Jerusalem hospital network to UNRWA, the one bucket it had not yet touched was the security assistance for the Palestinian Authority Security Forces, not wanting to do anything that would negatively impact Israeli-Palestinian security coordination. Once the Palestinians understood that continuing to accept security assistance would automatically subject them to personal jurisdiction, they rejected the U.S. aid money, and nearly everyone working on the Israeli-Palestinian conflict on both sides of the aisle has been trying to get the legislation amended since.

The fix in this week’s spending bill amends ATCA by delinking personal jurisdiction for the PLO and PA from accepting any funds from the U.S., and the bill actually earmarks $75 million in security assistance and $75 million in economic assistance to the Palestinians for the first time. But the bill preserves the personal jurisdiction hook by activating it if the PLO or PA make any payments to prisoners or family members of terrorists who killed or injured an American citizen, if the PLO or PA open or maintain any offices in the U.S. excluding the UN mission, or if any PLO or PA official conducts any organizational business while in the U.S. aside from meeting with American or foreign government officials.

What this means in practice is that funding to the Palestinians can now resume without them being forced to choose between accepting the money or opening themselves up to potential bankruptcy, but the U.S. is now treating the Palestinian Authority even more so than before as a functional terrorist organization. If the next president wants to reopen the PLO mission to Washington, which President Trump shuttered this year, it will require an act of Congress to override this new ATCA provision. If a PA official is invited to speak at a conference in DC or at a think tank meeting – both of which are routine occurrences – he or she must reject the invitation so as not to establish personal jurisdiction for the PA in federal courts. The PA is effectively unable to operate in the U.S. any longer outside of a very narrow band of engaging with the U.S. government.

The ATCA fix is in some ways a great example of targeted and pragmatic compromise to address a thorny policy conundrum. It was meant to address the very specific problem of allowing security assistance to the PA and economic assistance to the West Bank and Gaza that is critical to Israeli and American interests to continue flowing while preserving the possibility of justice and compensation for American families of victims of terror. Because the clause dealing with Palestinian payments to perpetrators of terror against American citizens will almost certainly be activated, personal jurisdiction will be established and it will pressure the PLO and PA to settle with the victims’ families. At the same time, removing U.S. assistance from the equation entirely means that the PA no longer has to make the self-defeating choice to cut off its security forces from the benefit of American funding and training. Furthermore, by earmarking money for Palestinian economic assistance, the U.S. is doing something to improve the welfare of ordinary Palestinians, who have been caught in the crossfire of the scorched earth battle being waged between the Trump administration and the PA. In addition, by tying jurisdiction to the martyr and prisoner payments, perhaps the ATCA fix will finally be the vehicle that convinces the PA to reform its abhorrent payment system, transforming it into an actual social security and social welfare fund based solely on need rather than on the level of violence committed against Israelis.

With all that said, the ATCA fix also takes a step forward in advancing the bizarre cognitive dissonance that reigns in Washington regarding the Palestinians. On the one hand, the U.S. continues to treat the PA as an important and credible diplomatic entity, including in this administration where Trump hosted Mahmoud Abbas at the White House and worked in vain to get PA buy-in for his ill-fated peace plan, while other administration officials from Jared Kushner to Jason Greenblatt routinely engaged with PA counterparts and even touted their successful brokering of Israel-PA cooperation. PA security assistance is viewed as so essential that the Trump White House lobbied Congress on revising ATCA almost as soon as the president signed it into law and people suddenly realized the implications, and Republican and Democratic offices in both chambers of Congress have been promoting their own fixes for months in order to enable resumed funding. Nearly everyone still treats the PA as the entity through which an Israeli-Palestinian peace deal must flow, and the PA is spoken about with a legitimacy befitting the fact that it was literally signed into creation on the White House lawn in 1993.

On the other hand, this latest legislation acts as if the PA is an unrepentant terrorist group that is blowing up buses, abducting Israeli soldiers, and working full time to liberate Palestine from the river to the sea. Seeking justice for victims of past Palestinian terror is not only appropriate but admirable, as is sending a message to the Palestinian government that even if it is no longer organizing and carrying out terrorist attacks, it is creating an incentive structure for ordinary Palestinians to do so. But treating every PA action in the U.S. as if it is being conducted by Hizballah is something else entirely. If we view the PA as a deeply problematic but legitimate organization, which is the thrust of American engagement with the PA in so many ways, it makes little sense to prevent a future president from ensuring that the Palestinians have diplomatic representation in Washington. It makes little sense to treat PA officials as nothing more than terrorist financiers and propagandists who cannot engage with American policy experts or non-governmental leaders. It sends the message that our interest in the Palestinians extends no farther than whether their representatives will agree to an American-brokered deal with Israel, and if they aren’t here for limited meetings with the U.S. government, then their purpose is inherently illegitimate.

This is at odds with how we have viewed the Palestinian people and their representatives for decades, and it will not bring an Israeli-Palestinian deal closer or preserve American influence in the process. It may also backfire in a tangible way by incentivizing the next Democratic president to unilaterally recognize an independent state of Palestine, which is the easiest way to bypass the new restrictions on Palestinian diplomatic activity in the ATCA fix as it would erase the PLO and the PA as entities and courts would have to decide whether the legislation would no longer apply to a fully formed Palestinian government. Recognizing an independent Palestine won’t make the Palestinians’ legal problems go away, as even if ATCA no longer applies, the Justice Against Sponsors of Terrorism Act allows civil suits against foreign governments for acts of terrorism. But it will provide a mechanism for a future White House to reopen the Palestinian mission in DC and allow Palestinian officials to conduct routine diplomatic business in the U.S. without having to wade back into the Congressional morass. These are all things that Congress should consider in the future as it passes legislation that pertains to the Palestinians. The ATCA fix is important and was done in a way that is better than some of the alternatives that had been floated, but it leaves some large conceptual and practical problems in its wake.

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