Repressing Criticism of Israel in the United States: Trump’s Executive Order

On December 11, 2019, President Donald Trump issued an executive order that he claimed was aimed at combatting anti-Semitism on US college campuses. In reality, the order is part of a broader effort in the United States and around the world to use the heavy hand of governments to repress activism on Palestinian rights.

Israel’s Repression Goes Global

To silence Palestinian dissent and resistance to Israeli policy, the Israeli state has had a wide variety of repressive tools in its arsenal which it has deployed against the Palestinians extensively over the years. Using live fire and rubber bullets, tear gas and physical beatings, and arrest raids and administrative detention, in addition to the outlawing of political organizing or congregating in various spaces, the Israeli state has been able to exercise massive policies of repression to quell Palestinian dissent throughout the territory it controls.

With the advent of the Palestinian civil society’s call for Boycott, Divestment, and Sanctions, however, dissent and civic activism against Israel’s policies and in solidarity with Palestinians have become increasingly transnational. It was only a matter of time until Israel’s repressive apparatus adapted its response in order to silence such dissent, which emanated from areas far beyond the control of the Israeli state.

With the advent of the Palestinian civil society’s call for Boycott, Divestment, and Sanctions, however, dissent and civic activism against Israel’s policies and in solidarity with Palestinians have become increasingly transnational.

Repressive Tactics

In an effort to stymie the growing movement for Palestinian rights in transnational civil society, the Israeli state and its supporters in various countries have launched campaigns aimed at putting down dissent and deployed various tactics toward that end.

Among these tactics are intimidation and smear campaigns. Perhaps the most prominent example is the website Canary Mission, which catalogues information on student activists and portrays their activism in a negative light. In so doing, the site tries to smear their reputations and complicate their job prospects.

Another example is “lawfare,” where pro-Israel groups attempt to use legal means to intimidate or attack students or activist groups by issuing threatening legal letters or filing legal claims. De-platforming is a related tactic: this is when pro-Israel legal advocacy groups try to deny financial services to Palestinian rights organizations by attacking third parties like banks or payment processors.

Perhaps the best-known tactic deployed to repress Palestinian rights activism is the effort to make boycotts illegal or otherwise pass laws to hinder boycott organizing or advocacy. The most restrictive environment in the western world on this front today might be France, where courts have interpreted laws in ways that impose heavy punishment for boycott activism. Elsewhere in Europe the success and impact of such legislative efforts are mixed.

In the United States, there are anti-BDS legislative efforts on both the state and federal levels. Some 27 states have passed a form of anti-BDS legislation while various initiatives have been made to pass similar federal laws, the most infamous of which was the Israel Anti-Boycott Act in the US Congress.

In the United States, there are anti-BDS legislative efforts on both the state and federal levels. Some 27 states have passed a form of anti-BDS legislation while various initiatives have been made to pass similar federal laws, the most infamous of which was the Israel Anti-Boycott Act in the US Congress. The earliest version of that legislation included criminal penalties and ruinous fines. Despite having the support of powerful Israel lobby groups, the legislation failed to become law. Its sponsors furiously attempted to get it passed quietly but it became so controversial that even a quiet attempt to pass it—as attached to other legislation—was not possible. The high-profile fight over this legislation became partisan, with many Democrats opposing it on First Amendment grounds while Republicans used it to taunt their opponents for not being sufficiently pro-Israel. Once Democrats took over the House of Representatives in 2019, it became clear that anti-BDS legislation that curtailed free speech rights was not going to have the political support to advance through Congress.

First Amendment concerns not only dealt a blow to the political prospects of federal anti-BDS legislation but they also provided the grounds from which some state-level anti-BDS legislation was successfully challenged in court. In Kansas, Texas, and Arizona, courts have ruled in favor of those raising civil liberties arguments against such legislation. Unlike in France and some other places in Europe where free speech laws might not be as robust, the First Amendment presented a significant roadblock to the strategy of trying to combat Palestinian rights activism through anti-boycott legislation in the United States.

The Anti-Semitism Workaround

“Congress shall make no law…”—these are the words with which the First Amendment, like other amendments to the American constitution, begins. This pillar of American democracy restricts the ability of Congress to make laws that violate the freedom of speech. The Fourteenth Amendment, passed after the American Civil War, extended the restrictions on lawmaking against these freedoms to the states as well as the federal government. For these reasons, new laws against the tactic of boycott will be constantly vulnerable to legal challenges on First Amendment grounds. Drafters face the choice of making the legislation vague and toothless to the point where it is meaningless to avoid court challenges, or of presenting it clearly and directly—and therefore susceptible to immediate challenge. Thus, so far, the American constitution has limited the efficacy in trying to pass new anti-BDS laws to direct state authority against the movement for Palestinian rights.

The American constitution has limited the efficacy in trying to pass new anti-BDS laws to direct state authority against the movement for Palestinian rights.

If passing new laws proves difficult, however, another pathway is to find ways to weaponize existing laws for the same purpose. While boycott is protected as free speech in American jurisprudence, the same constitutional pillars that protect it have also given rise to robust civil rights and anti-discrimination laws in the United States. Therefore, if Palestinian rights activism could be construed as discriminatory, then anti-discrimination legislation could be weaponized against this activism.

This is precisely what has characterized a rising front in the pro-Israel repressive effort. Conflating anti-Zionism, and by extension Palestinian rights activism, with anti-Semitism has become one of the most consistent messages coming from pro-Israel interest groups in the United States and abroad. Further, the push to concretize this equation through the formal adoption of definitions of anti-Semitism—ones that include criticism of Israel—is on the rise.

The primary example of this is the International Holocaust Remembrance Alliance’s (IHRA) working definition of anti-Semitism. The IHRA, which includes 34 member countries, “unites governments and experts to strengthen, advance and promote Holocaust education, research and remembrance.” In 2010, the IHRA adopted a working definition of anti-Semitism that was intended primarily for academic purposes and for methodologically cataloguing instances of anti-Semitism. The definition included manifestations of anti-Semitism that could include various forms of criticism of Israel. Since that time, and particularly in the last five years, various efforts have been made to have this definition adopted as the yardstick for measuring anti-Semitism in various bodies, from universities to political parties to governments. Once institutions adopt this definition, they can then be held to enforcing it.

Complaints can be filed against Palestinian activists on the basis that their activism violates the IHRA definition. If the institution where these activists are located does not respond to a complaint, it will be accused of being ineffective or tolerant of anti-Semitism, or as actually anti-Semitic. If that institution is in some way affiliated with the state or federal government or receives financial support from them, its failure to fully enforce this definition—real or perceived—could land that institution in trouble with the government. This mechanism creates an incentive structure where institutions have to choose between permitting Palestinian rights activism or risking trouble with the government.

Trump Acts

Ahead of the recent issuance of the executive order by President Trump, this precise dynamic was playing out between the US Department of Education’s Office of Civil Rights and the University of North Carolina (UNC). The federal office is headed by a political appointee whom Donald Trump nominated: Kenneth Marcus, a zealous advocate who had dedicated his career to using education policy to strong-arm universities into silencing Palestinian rights advocacy. Prior to this position, Marcus spent his time leading an advocacy group that routinely petitioned the Office of Civil Rights to take action against universities over Palestinian rights activism. His appointment, therefore, was akin to putting arsonists in charge of the fire department.

Marcus had been threatening the University of North Carolina after an event was held on Gaza in Spring 2019. Since the university receives federal funding, the Department of Education (DoE) could hold back that funding unless the university is deemed to be in compliance with DoE standards. As part of a resolution negotiated between the DoE and UNC, the university agreed to revise its anti-discrimination policy to include a definition of anti-Semitism that included anti-Israel sentiments and to submit this revision for approval by the DoE. In doing so, the university might be backed into a corner where it would be forced to shut down anything that could be misconstrued as anti-Semitism because it includes criticism of Israel.

It was during the time when UNC and the DoE were negotiating over a definition that Trump issued his executive order instructing federal agencies to consider the IHRA definition when investigating instances of anti-Semitism. If there was internal resistance to Marcus’s agenda in the Department of Education or elsewhere in the government, this executive order sent the message through the executive branch that Marcus had the support of the president of the United States. While the executive order itself changes nothing in the law, it should help grease the machinery of the federal government to more effectively weaponize the conflation of anti-Zionism and anti-Semitism.

While the executive order itself changes nothing in the law, it should help grease the machinery of the federal government to more effectively weaponize the conflation of anti-Zionism and anti-Semitism.

Since the issuance of this executive order, a number of additional complaints have been filed against universities including Columbia and Georgetown as well as others. At the Department of Education Marcus now receives these complaints, the very sort he used to send from the outside; the difference is that he now considers and pursues them with the full support of the president of the United States. Universities will have to confront this problem more and more as their student bodies are increasingly sympathetic and active in supporting Palestinian rights. At the same time, the federal government under Trump has been the most extremely pro-Israel administration in history. The goal is likely intimidation. However, the most committed zealots running the Office of Civil Rights could not possibly investigate all American universities, even if they had years to do so. But that may not be necessary; rather, if a handful of high-profile cases result in universities changing their policies after being threatened by the Department of Education, other universities and colleges will take note and, in order to head off any potential threat, could decide to proactively take action to get in line with the Department of Education’s whims. This intimidation factor could unleash a chilling effect across university administrations and lead to a wide range of obstacles for Palestinian rights activists on campus.

Immediately after the executive order, Trump’s son-in-law and supposed Middle East peace envoy, Jared Kushner, wrote an op-ed for The New York Times arguing that the order would protect students. He also tellingly made it clear that the IHRA definition declares that “[A]nti-Zionism is anti-Semitism” and that “The inclusion of this language with contemporary examples gives critical guidance to agencies enforcing Title VI provisions.” Shortly thereafter, Secretary of State Mike Pompeo made comments that further illustrated precisely the administration’s intentions: he said the executive order “is aimed squarely at pushing back against the boycott, divestment movement, the BDS movement that is taking place on our college campuses and across America.”

Signs of Desperation

The increased repression of Palestinian rights advocacy is undoubtedly a sign of this activism’s growth and success over the years. It also points to the desperation of the Israeli state and its supporters and allies around the world. Increasingly, on college campuses and in progressive spaces, supporters of Israel’s policies are strategically opting to silence the discussion rather than to engage in it. This should not come as a surprise to anyone familiar with Israeli policy, which continues to become harder to defend every day.

In the long term, audiences might well realize that those trying to silence the debate are doing so because they are finding it increasingly difficult to win it. In the short term, however, especially as Israel’s control over millions of Palestinians deepens, repressive efforts are likely to intensify as people around the world continue to question Israel’s harsh treatment of the Palestinian people and their rights.

Yousef Munayyer is a Non-resident Fellow at Arab Center Washington DC. To learn more about Yousef and read his previous publications click here