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The Rule of Law and Foreign Policy

Presidents have traditionally been given significant leeway in the conduct of foreign policy.  However, the Congress periodically has made sounds about reigning in a President.  Currently, there is bipartisan discussion about revising some war powers.  However, just recently the State Department may have gone too far.

As noted in our most recent posting (negotiating with the Iranians) the Biden administration has announced $250 million in spending on the Palestinian Authority, despite a 2018 law that prevents US taxpayer money from supporting the Palestinian Authority while it pays stipends and pensions to terrorists and their families.  This action, since the original posting has gotten increased scrutiny.

In 2018, President Trump signed the Taylor Force Act into law, which prevents the US from providing economic support and other funding to the Palestinian Authority while it continues to pay the families of deceased terrorists, or to pay terrorists in Israeli prisons — a policy referred to by its critics as “pay-for-slay.” The Palestinian leadership refused to end the payments and thus lost U.S. funding. The Trump administration also stopped funding UN agencies which provided aid to the Palestinians because those funds supported terror.

In making the announcement Secretary of State Blinken claimed that “All assistance will be provided consistent with U.S. law,” but did not explain how the funding would comply with the Taylor Force Act. He also did not provide any evidence of reforms within the Palestinian Authority nor did he mention any Palestinian effort to discourage terror or to stop incitement against Israel or Jews.

In a letter that Senator Cruz and a large number of his Senatorial colleagues sent Secretary Blinken they note that the Biden administration’s funding for the Palestinian Authority violates the Taylor Force Act because it is being used for public services, freeing money in the Palestinian Authority (PA) budget to continue supporting terrorists.  The letter says in part:

On March 18, the State Department transmitted an unpublicized report to Congress pursuant to its obligations under the TFA [Taylor Force Act], which confirmed that the PA has in recent years funneled hundreds of millions of dollars toward terrorists and their families, and that in 2019 alone the PA expressed its intention to spend approximately $342.6 million on such rewards.

On March 19, the Government Accountability Office (GAO) issued a report finding that for the fiscal years 2015-2019, when USAID was distributing Palestinian assistance, USAID “did not consistently ensure” that those grants would not be passed along to terrorist groups and terrorists. The GAO recommended that, should funding resume, USAID should “(1) verify prime awardees have procedures to ensure compliance with requirements before making subawards and (2) conduct post-award compliance reviews in time to make corrections before the awards end.” It also noted that “USAID agreed with the recommendations.”

The notification describes new assistance that would go towards, inter alia, “municipal roads,” “internal roads, sidewalks, safe and designated bus parking lots, and driving routes,” “reservoirs, pump stations, water distribution and transmission networks,” “basic commodities,” “emergency preparedness,” “community initiatives,” “safe spaces to engage in community initiatives,” and “building the resilience of the Palestinians to climate change and strengthening their adaptation to climate change.”

These activities are the governance responsibility of the PA, and Congress prohibited American assistance to such activities against the backdrop of the PA using its available resources for pay-for-slay programs. In fact, Congress explicitly and narrowly enumerated in TFA what Palestinian governance programs should nevertheless still receive assistance: wastewater projects, childhood vaccination programs, and payments to East Jerusalem hospitals. The programs described in the March 26 USAID notification do not fit into those exceptions and so likely violate the TFA.

The $250 million award is worrisome for two reasons:

  1. As noted in the article it takes the pressure off of Iran for supporting the Palestinian authority and of course as noted in the letter it takes the pressure off of the Palestinian authority, but
  2. It shows that the Biden administration has a blatant disregard for the rule of law.

This act is one of the more blatant attempts to ignore the rule of law.  It is only a matter of time until either the United States ceases to be a country where the rule of law matters or the Biden administration will get it comeuppance.

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