A group of U.S. citizens living in Israel filed suit against the State Department and Secretary of State Hillary Clinton, the United States Agency for International Development (USAID) and its Administrator, Rajiv Shah, and other government officials on Nov. 26, 2012 alleging violation of legal restrictions on funding for the Palestinian Authority and United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA). The suit, Bernstein v. Clinton, seeks a court order requiring compliance, discontinuation of funding until such compliance is in place, and recovery of funds “provided without authority.” The government defendants have not yet filed an answer.
The suit was filed in the United States District Court for the District of Columbia. The plaintiffs were assisted by the Shurat HaDin Israel Law Center. The 57-page complaint alleges that State and USAID have “facilitated funding to the Palestinian Authority (PA) without imposing controls and oversight mandated by federal statute.” It goes on to say, “Defendants have ignored reporting requirements and allowed the Palestinian Authority to evade transparency safeguard” which in effect has “allowed federal dollars into the hands of Hamas and the Popular Front for the Liberation of Palestine” and other terrorist organizations. [p. 2]
The suit focuses on alleged violations of three different laws:
Appropriations laws:
The suit largely focuses on funding through the Economic Support Fund (ESF). The appropriations act forbids using such funds “to support a Palestinian state” unless the Secretary of State makes specific findings that the recipient has demonstrated “a firm commitment to peaceful coexistence with the State of Israel,” is taking appropriate measures to counter terrorist financing and is working toward a just and lasting peace. The suit alleges that no such findings have been made, and that no waiver based on national security has been given. (See Sec. 7036 of the appropriations act).
Violation of numerous other restrictions on the ESF are alleged, including funding entities controlled by or affiliated with Hamas, such as resources “to accomplish civil objectives that Hamas would otherwise be responsible for, thus freeing up Hamas’ existing resources for other causes, principally including terrorism.” [p. 49]
Palestinian Anti-Terrorism Act of 2006:
The violations of the Palestinian Anti-Terrorism Act of 2006 include foreign assistance for the Palestinian Authority, which the suit alleges is controlled by Hamas, “without regard to restrictions.” These include a Presidential certification that no part of the PA is controlled by Hamas and that it has publicly acknowledged Israel’s right to exist, adhering to peace agreements and taking steps to dismantle terrorist operations and infrastructure. The complaint says no such certification has been made, and that they cannot be made in good faith because they would be falsehoods. [p. 26]
The only other exception is funding to nongovernmental organizations to “meet food, water, medicine, health, or sanitation needs, or other assistance to meet basic human needs” or to “promote democracy, human rights, freedom of the press, nonviolence” and other peace indicators. [p. 29]
The Material Support Statute
The suit alleges violation of the criminal prohibition on providing material support to terrorists, citing the Supreme Court’s 2010 ruling in Holder v. Humanitarian Law Project. It says the defendants have provided material support to terrorists and terrorist organizations in the West Bank and Gaza by paying salaries for a program that glorifies terrorism.
Note: A complaint only represents one side of a lawsuit. Facts alleged must be proven in subsequent proceedings in the case.