Over the holiday weekend, NPR’s Jerusalem correspondent published a letter Palestinian Authority Prime Minister Rami Hamdallah sent Mike Pompeo in late December, informing the U.S. secretary of state that the PA would no longer accept financial assistance from Washington. This includes funding for the Palestinian Authority Security Forces (PASF), an umbrella term for the PA’s eight paramilitary, police, and intelligence services. The Trump administration had eliminated aid for most projects in the West Bank and Gaza over the last year, but security assistance survived the clearly partisan and punitive purge. Then, in early October, Congress passed the Anti-Terrorism Clarification Act (ATCA), which takes effect on February 1. The new law stipulates that taking U.S. foreign aid equals consent to the personal jurisdiction of U.S. courts, meaning the recipient of American funds can be sued in American courts. The PA doesn’t want to be sued (the law’s clear aim, from the offing, is to make such an eventuality possible), so it isn’t taking any U.S. money.

Lawsuits had been filed in U.S. courts against the PA and P.L.O., alleging they had facilitated terror attacks in which the plaintiffs and their family members were injured or killed. U.S. courts ultimately determined they lacked personal jurisdiction over the defendants in these cases (although judges and juries in lower courts have ruled favorably for the plaintiffs). This means the courts lacked authority over the Palestinians, a foreign entity sued for actions committed overseas, as a party to the suit. The sponsors of the ATCA aimed to preempt such obstacles in the future.

Many of the terror attacks cited in the lawsuits brought against the PA/P.L.O. occurred during the Second Intifada (2000-2005). In that period, PA paramilitaries and police turned their guns against civilians and Israeli soldiers in Israel and the occupied territories. The rogue PASF were routed by the Israeli military, which reoccupied cities nominally under Palestinian Authority control.

In the aftermath of the Second Intifada and the death of Yasser Arafat, the various services of the PA Security Forces were restructured, rehabilitated, and professionalized, in no small part because of American assistance. Thus, the pre- and post-Intifada PASF are in many ways different institutions.

This distinction does not absolve the perpetrators of terror attacks of responsibility for their actions, nor does it address the very serious issue of incitement by PA leaders, including President Mahmoud Abbas. However, it is worth noting in the current context, especially as it concerns how the ATCA and the PA’s rejection of U.S. aid would impact Israeli-Palestinian security coordination.

Before the Trump administration’s complete cutoff of American aid projects in the West Bank and Gaza last year, U.S. assistance for the Palestinians came from a number of accounts. The U.S. ended contributions to humanitarian and governance projects under the Economic Support Fund (ESF) for FY 2018 (the fate of such projects in FY 2019 remains undetermined), as well as donations to UNRWA. However, support for the PASF comes through a different fund, the International Narcotics Control and Law Enforcement (INCLE) account. INCLE funding was the only bilateral aid to the Palestinians untouched by both White House action and the Taylor Force Act, another piece of legislation aimed at sanctioning the PA for alleged support of terror. It is this money that the Palestinians are now rejecting in order to escape potential litigation made possible by the ATCA.

U.S. aid to the PASF expanded significantly after the Second Intifada. In the mid 1990s, the United States was contributing just $5 million a year to the Palestinian security services to help pay salaries. By contrast, the INCLE budget for 2019 is $35 million, encompassing non-lethal equipment, training, and professionalization. Washington also established the U.S. Security Coordinator in Jerusalem (USSC), an office held by an American general who manages the implementation of American aid to the PASF. This grants the United States significant oversight in the facilitation of aid to the Palestinians. In sharp contrast with the Arafat era PASF, the post-Second Intifada security services have worked successfully to combat rejectionist groups in the Palestinian Territories, as well as to prevent attacks against Israeli soldiers and civilians, despite rising public pressure cooperation with Israel as it trends away from supporting a two-state solution.

In the absence of American aid, what outside security support will the Palestinian Authority receive? The European Union maintains its own mission, the EU Coordinating Office for Palestinian Police Support (EUPOL COPPS). However, EUPOL COPPS provides training to just one service, the Palestinian Civil Police, and its annual budget (a little over $10 million USD) is less than a third of what the United States had earmarked for the PASF for this year. Recently, EUPOL COPPS was subject to an internal corruption investigation, stalling its activities and undermining its credibility. The PASF have received equipment and training from Russia and Arab governments, but nothing systematized in the manner of American aid nor on the same scale. Thus, no real substitute exists in the Palestinian security sphere for present U.S. support.

In the week remaining before the ATCA goes into effect, the Trump administration may seek a waiver or other kind of work-around to preserve aid to the PASF, but prospects for such a solution are not promising. After the ATCA’s passage in October, the Trump administration mobilized the incumbent USSC, Lt. Gen. Eric P. Wendt, in an effort to convince legislators to exempt the PA and P.L.O. Lawmakers produced no such fix; after all, the point of the legislation (though unstated in its text) is to expose the PA and P.L.O. to litigation. The ATCA responds to the real and painful concerns of American citizens who have been harmed and seen loved ones maimed and murdered in terrorist attacks. The question policymakers must now confront is how best to achieve justice for these individuals, and whether it must come at the expense of a successful program like the PASF.

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