A Lawsuit by Christian Zionists Says Biden's West Bank Sanctions Violate the First Amendment
By targeting "persons undermining peace, security, and stability," the plaintiffs argue, the president is threatening to punish people for opposing a two-state solution.
In February, President Joe Biden issued an executive order that declared a "national emergency" in response to "high levels of extremist settler violence" in the West Bank and imposed economic sanctions on "persons undermining peace, security, and stability" there. Although he emphasized the threat posed by attacks on Palestinian civilians, his order extended much further, encompassing "any foreign person" whom the secretary of state or the secretary of the treasury deems "complicit" in actions that "threaten the peace, security, or stability of the West Bank." Because the order prohibits "the making of any contribution or provision of funds, goods, or services" to a designated individual, it also applies to U.S. citizens.
According to a federal lawsuit that the Christian Zionist organization Texans for Israel filed this week, the broad sweep of those sanctions violates the First Amendment by punishing peaceful advocacy and activism. Biden's order "makes it sanctionable for a person to 'directly or indirectly' harm 'peace, security, or stability of the West Bank,'" says the complaint, which was filed on Tuesday in the U.S. District Court for the Northern District of Texas. "This open-ended and vague provision empowers the Office of Foreign Assets Control within the Department of Treasury ('OFAC') to sanction anyone who acts contrary to what the Secretary of the Treasury determines advances the cause of 'peace, security, or stability of the West Bank.' This violates the First Amendment."
A November memo regarding what Biden described as "visa bans against extremists attacking civilians in the West Bank" defined the targets broadly, saying they included anyone engaged in "actions that significantly obstruct, disrupt or prevent efforts to achieve a two-state solution." Since the Biden administration has described settlement construction in the West Bank, a.k.a. Judea and Samaria, as "an obstacle to peace" that "make[s] a two-state solution more difficult to achieve," it seems to view support for such activity as sanctionable. "This is the first and only sanctions regime where an Administration has deemed ordinary, peaceful activities and reasonable political positions supported by many Americans as inimical to 'peace' and therefore sanctionable," the complaint says.
Texans for Israel "stands committed to wholeheartedly supporting the Jewish People in their ancestral homeland of Israel." That mission includes "educat[ing] Texans about the importance of Israel" and "promot[ing] cultural exchange between the two regions." It also includes "aid to individuals, organizations, and communities, focusing especially on those in the heartland of Israel: Jerusalem, Judea, and Samaria."
In support of that mission, Texans for Israel President Michael Isley has "traveled to Judea and Samaria over 40 times," done volunteer work on farms in the West Bank, and "cultivated a strong relationship with the Jewish community in Hebron." He also has hosted several Israelis, including the spokesman for that community, at his home. The lawsuit says those visitors, "whom Mr. Isley and Texans for Israel support financially and whom they have invited to the United States for the purposes of education and fundraising," "hold views and engage in activities, including First Amendment protected speech, that the Biden Administration would regard as 'threaten[ing] peace and security' in the Middle East."
Isley shares those views. "One of our goals is to teach and tell our Christian friends to support Judea and Samaria," he says. "It is the road on which the patriarchs walked. It is the Cave of the Patriarchs bought by Abraham." While "I love Tel Aviv and Jerusalem," he adds, "I really love Judea and Samaria. There will never be a two-state solution. That is land that God gave to the Jews."
Biden's order says "there need be no prior notice of a listing or determination made pursuant to this order." According to the lawsuit, Isley worries that he "could be subjected to sanctions without prior notice, and this fear has chilled his ability to continue to support the invitation of the above-mentioned individuals to the United States to enable them to speak to government officials and ordinary citizens about Israel—and specifically, about Judea and Samaria."
Another plaintiff, Ari Abramowitz, is a dual U.S.-Israeli citizen who lives on an "isolated farm" in Gush Etzion. According to the complaint, he "has been repeatedly subjected to violent attacks" and "now fears venturing outside." The lawsuit says Abramowitz worries that he could be penalized for acting in self-defense. "Should he, his wife, or his children again be attacked by Palestinian terrorists and should he use force to defend himself and his family," it says, "Mr. Abramowitz may find himself subject to these harsh sanctions without notice."
The other plaintiffs include Regavim, an Israeli organization that supports Tzav 9, a movement that opposes aid to Gaza; Meir Deutsch, a dual citizen and "staunch opponent of the two-state solution" who runs Regavim; and dual citizen Yosef Ben Chaim, the husband of Tzav 9 founder Reut Ben Chaim, who was sanctioned under Biden's order last month. Although Tzav 9's tactics include protests that block trucks carrying aid to Gaza, it maintains that it has always "operated within the law" as part of a peaceful "democratic protest" against "aid that goes directly to Hamas." Reut Ben Chaim, a mother of eight who says her movement aims "solely to bring our hostages home," complains that "the U.S. is harshly targeting us, though we have done nothing against the law."
As a result of the sanctions, Reut Ben Chaim's Israeli bank account was frozen. That meant her husband, who worked for her tour guide business, could no longer receive his salary. The complaint says he therefore "cannot finance basic, day-to-day essential transactions: food, education, medicine, hygiene products (i.e., diapers, etc.), mortgage payments, etc."
When the U.S. government imposes sanctions on someone, "his bank accounts and those of his immediate family will be frozen," George Mason University law professor Eugene Kontorovich, one of the plaintiffs' attorneys, notes in The Wall Street Journal. "Anyone who provides any 'funds, goods, or services' to them may in turn be subjected to sanctions as well. These are harsh measures typically reserved for terrorists and dictators. Texans for Israel's support for Judea and Samaria settlements—by hosting speaking events or donating to Israeli advocacy groups—is an exercise of its First Amendment rights. But because of the breadth of the executive order, which sweeps in vast amounts of perfectly legal conduct, it faces massive financial risks that unconstitutionally chill its free speech."
The lawsuit alleges that the Treasury Department and the State Department have failed to "engage in proper fact-finding" when designating individuals for sanctions, crediting "false and misleading allegations of misconduct by Jewish residents of the West Bank without making any effort to verify and validate" them. Lending credence to that charge, the U.S. government last month sanctioned Aviad Shlomo Sarid, a 27-year-old resident of Revava, because of his alleged involvement in Tzav 9. "Sarid has no connection to Tzav 9 and has not participated in its activities," Ynet reported. "The intended target was Shlomo Sarid, the organization's volunteer coordinator, who is much older and resides in the Jordan Valley, not in Revava."
In addition to the First Amendment claim, the plaintiffs argue that Biden's order violates the Religious Freedom Restoration Act because it "substantially burdens the exercise of Plaintiffs' religion" but is not "the least restrictive means" of serving a "compelling governmental interest." The only justification cited by the government, they say, is "its concern that the targeted activity might 'undermine the foreign policy objectives of the United States,'" which is "an insufficiently compelling interest."
The lawsuit claims the order also violates the First Amendment's guarantee of religious freedom because it "cannot be considered to impose 'generally applicable' burdens on religious practice." It "vests complete discretion" in the secretary of the treasury and the secretary of state to determine who should be sanctioned, the complaint says, and it "was intended to target a particular subset of religious belief": the belief that "Jews have a right to settle in Judea and Samaria."
On similar grounds, the plaintiffs argue that Biden's order is subject to "strict scrutiny" under the Fifth Amendment's guarantee of equal protection because it "targets a suspect class." Although the order "avoided making express references to race or religion," they say, it is clearly "targeted at the Jewish People and their religious beliefs." The Biden administration "has made clear by its words and enforcement actions that only Jewish people are at risk at being sanctioned," the complaint says. The order "does not withstand strict scrutiny," it adds, "because there was no compelling governmental interest to declare a national emergency or to impose a sanctions regime due to the alleged activities of a miniscule sector of an already small population in a geographically limited area under legitimate and effective control by the Israeli government."
The lawsuit also argues that Biden's order is "arbitrary and capricious," in violation of the Administrative Procedure Act, and that its vagueness violates the Fifth Amendment's guarantee of due process, which includes a "fair notice" requirement. The order "violates the Fifth Amendment's requirement of fair notice because it does not sufficiently describe what conduct constitutes sanctionable activity," the plaintiffs say. It is "so vague that regulated parties cannot possibly guess what types of speech are affected, as evidenced by the multiple requests for clarification that have already been received by OFAC."
In case you are not inclined to sympathize with these plaintiffs because you disagree with their views, Kontorovich highlights the principle at stake. "If the Biden administration is permitted to do this," he writes, "a different administration down the line could freeze the bank accounts of Americans who support left-wing Israeli groups simply by deeming their activities bad for peace and stability in the West Bank. Sanctions have never been used to silence policy disagreements like this."
