Hamas Participation In Palestinian Government Likely Won’t Trigger Cut-Off

After seven years of internecine conflict, the Palestinian factions Fatah and Hamas joined forces today in a new interim government made up of technocrats. The government, led by current Prime Minister Rami Hamdallah, contains no active members of either faction, and is designed to be a caretaker government until elections are held.

A number of U.S. legislators have called for a cut in funding to the Palestinians since reconciliation was announced on April 23. They note that the inclusion of Hamas should automatically prompt a full cut in the $440 million slated for the Palestinian Authority (PA) this year. After all, Hamas was designated as a Foreign Terrorist Organization (FTO) by the State Department, which prohibits any U.S. citizen or financial institution from providing an FTO with any financial instruments, financial securities, and services.

The Obama Administration, however, is unlikely to take such action so long as efforts, minimal as they may be, continue on the Israeli-Palestinian diplomatic track. The laws appear to allow for interpretation. This could set the stage for a battle on Capitol Hill. 

Section 7040 of the 2014 Consolidated Appropriations Act, for example, places limitations on U.S. assistance to the Palestinian Authority, including “assistance to Hamas or any entity effectively controlled by Hamas, any power-sharing government of which Hamas is member, or that results from an agreement with Hamas and over which Hamas exercises undue influence.” The legislation, however, allows for a presidential waiver of the prohibition on funding a unity government that includes Hamas.

Similarly, the Palestinian Anti-Terrorism Act of 2006 (PATA) prohibits U.S. funds from going to Hamas, Hamas-controlled entities, or a power-sharing PA government that includes Hamas as a member, or results from an agreement with Hamas. However, PATA outlines exceptions to the U.S. aid ban on a “Hamas-controlled” PA to include humanitarian assistance, democracy promotion, and “other types of assistance” that the President deems is in the “national security interests” of the United States. To this end, the president can exercise national security waivers available to him throughout the law.

PATA could also deny visas to certain Hamas affiliated members of the Palestinian Authority and prohibit U.S. employees from negotiating with any member of Hamas unless the group recognizes Israel, renounces terrorism, dismantles its terrorism infrastructure, and accepts all previous negotiated agreements with Israel. PATA might even prompt the suspension of the activities of the United States Coordinator for Israel and the Palestinian Authority (USSC). Similarly, because Hamas’ designation as an FTO prohibits “material support” to the organization, other training can be prohibited. However, this might also be subject to waivers.

It is unclear whether legislators will seek to challenge the White House. But the notion that this government is deserving of U.S. funds because it is made up of only technocrats is not likely to go over well. Hamas undeniably helped to select the technocrats. Moreover, the intention is to have this technocratic government rule until elections take place — elections that will include the participation of Hamas. This puts the White House on a slippery slope.

Jonathan Schanzer is vice president for research at Foundation for Defense of Democracies. Follow him on Twitter @Jschanzer