In a highly unusual step, both U.S. ambassador to Israel Dan Shapiro and the U.S. State Department criticized last week a proposed Israeli law that would require NGOs that receive their primary funding – at least 50% -- from foreign governmental bodies to disclose that funding and to identify themselves as such recipients in all contacts with Israeli governmental figures and in any advertisements or reports that they publish.
State Department spokesman John Kirby and Ambassador Shapiro opined that the law could have a chilling effect on free expression in Israel. Shapiro delivered a civics lesson: "[A] free and functioning civil society is an essential element of a healthy democracy, and . . . governments must protect free expression and peaceful dissent and create an atmosphere where all voices can be heard."
With the exception of the Golan annexation law, which directly contravened longstanding American policy in the Middle East, I cannot think of another piece of Knesset legislation that has come in for criticism from the American government. Can one imagine, for instance, the United States publicly criticizing British libel law as an impediment to free speech, even though most libel suits brought in the United Kingdom would be thrown out of American courts under the Supreme Court's Sullivan v. New York Times decision.
A second puzzling aspect of the high level State Department criticism of the proposed legislation is that it is generally understood that the legislation, though facially neutral as to the NGOs affected and the identity of foreign governmental funders, was primarily directed at the EU and its member states. The EU heavily funds left-wing NGOs in Israel, many of which are viewed by the vast majority of the Israeli public as anti-Israel organizations devoted primarily to blackening the name of Israel abroad.
One can hardly overstate the hysteria and fury that would greet revelations that one European government was investing tens of millions of dollars to aid the political opposition of a neighboring state. Yet the EU and its member states have been doing so in Israel for well-nigh twenty years.
Until last week, however, the idea of the United States funding organizations like Breaking the Silence would have seemed quite far-fetched. True, the United States once meddled in the internal affairs of hostile foreign countries. But that was generally done clandestinely by the spooks of the CIA.
Today, even the CIA has been shackled. It did nothing to make life more difficult for an openly hostile dictator like Venezuela's Hugo Chavez or his successor Nicolas Manduro (not that they needed any help in running Venezuela into bankruptcy.)
President Obama could barely bestir himself to express support for peaceful demonstrators protesting massive election fraud in Iran, even as they were being mowed down and imprisoned by the Revolutionary Guard. And he has apologized repeatedly to the Iranian government for the United States' involvement in the 1953 coup in Iran that brought the Shah to power.
If covert action against adversaries will no longer be countenanced, it would be unthinkable the United States would ever act today to undermine the elected government of a staunch ally like Israel. Or, at least, it was so assumed.
THE POLITICAL OPPOSITION IN ISRAEL has been equally vociferous in its criticism of the law. Opposition leader Isaac Herzog accused the government of having placed Israel "on the same level with the darkest countries in the world." Such accusations are already old hat in Israel. Every attempt to even the playing field or to assert Knesset supremacy is inevitably denounced by the left-wing media and political parties as a mortal threat to the rule of law and Israeli democracy.
Every proposal to bring judicial selection in Israel more in accord with other democracies in the world – in Israel alone do sitting justices have a decisive voice in selecting new colleagues – or to limit the powers of the Attorney-General, who alone among attorney-generals in the world exercises a final veto over any and all government actions, is met with the same denunciations.
Charges that attempts to bring Israeli democracy into greater conformity with other longstanding democracies are an affront to democracy make sense only when viewed through Lewis Carroll's looking glass. Yet these charges are as inevitable as Old Faithful for the simple reason that they have so often proven successful in the past. Prime Minister Binyamin Netanyahu may be loathed by much of the media, but that has never stopped him from trying to curry favor with either the legal or media establishments, the last bastions of the Left, which has not commanded an electoral majority in nearly twenty years.
This time, however, Netanyahu has largely supported Justice Minister Ayelet Shaked, the sponsor of the proposed amendments to the law governing transparency for foreign-funded NGOs. He may have backed down on the aspect of the law with the worst "visuals" – the requirement that representatives of foreign-funded NGOS wear prominent identification when in the Knesset or meeting government officials. But on the general transparency requirements he has thus far stood behind the embattled Shaked.
FRANKLY, I FIND IT ALMOST impossible to conceive of any remotely plausible objection to the so-called Shaked bill on the grounds of democratic theory. The bill in no way limits the activities in which foreign-funded NGOs can engage or the positions they can advocate. Nor does it restrict foreign government contributions.
Rather it seeks to ensure that when certain NGOs advocate at the behest of foreign governmental bodies that Israeli citizens and government officials know who stands behind that advocacy. It applies, in short, the dictum of Justice Louis Brandeis, "Sunlight is said to be the best of disinfectants."
True, requirements to report all charitable or political contributions can stifle free speech and freedom of association. Brendan Eis is a classic example. Within 24 hours of revelation that he had contributed to groups supporting a successful ballot initiative in California to define marriage for the purposes of the state constitution in the traditional manner, he was ousted as CEO of Mozilla, the company he founded. Potential future contributors to causes no longer considered politically correct took note and were chilled.
But Shaked's proposed law makes includes no reporting requirements of contributions by Israeli individuals or companies. It confines itself to foreign governmental bodies who enjoy no democratic right to meddle in Israel's political debate.
No country in the world accepts the right of foreign governments to intervene in its internal politics any more than it accepts the right of foreign governments to spy on its officials. That was the point Shaked was making, or should have been making, when she cited the American Foreign Agents Registration Act (FARA), first enacted in 1938 to counteract Nazi propaganda in the United States.
It is irrelevant to what degree FARA resembles the Shaked Law or not. Both stem from the same healthy sovereign impulse to shine the light on foreign intervention on one side of internal political debates.
In point of fact, however, Ambassador Shapiro and State Department spokesman Kirby's attempts to distinguish FARA and Shaked's Law could not have been more feeble. Shapiro argued that FARA only applied to certain specific activities. He neglected to note, however, as Jan Sokolovsky and Ariela Cotler pointed out in the Jerusalem Post, that those specific activities included political activity intended to influence "domestic or foreign policies of the United States," a definition that would apply to all the NGOs targeted by Shaked's proposed bill as well.
And he claimed that FARA requires that foreign agents be under the "direction or control" of the foreign entity before they are subject to its onerous reporting requirements, which go far beyond anything proposed by Shaked. But that does not mean and has never been interpreted to mean that they receive specific instructions from the foreign entity. Control can be inferred from the circumstances of the relationship.
Fifty per cent or more funding of an NGO is more than enough reason to infer control. But more important, the EU requires all grant recipients active over the Green Line to commit to "promoting the Middle East peace process in line with EU policy." Thus the control is explicit.
AS IT TURNED OUT THE STATE DEPARTMENT picked a very bad week to launch a full frontal attack on the Shaked bill. The events of last week only served to demonstrate how badly needed the legislation is.
First, came the revelations in Ha'aretz of taped recordings of Ezra Nawi, a left-wing activist supported by many of the NGOs most likely to be affected if Shaked's bill is enacted into law, boasting of having turned over Palestinians willing to sell land to Jews to the Palestinian Authority with full knowledge that they would be tortured and killed. That brought home how thoroughly noxious many of the activists sustained by EU money are.
But of even greater significance was the most recent State Department dump of the emails of former Secretary of State Hillary Clinton. One of those emails came from former ambassador to Israel and top State Department official Thomas Pickering.
Pickering is a Hillary confidant. She appointed him to head the State Department's Accountability Review Board on Benghazi, and he somehow contrived to file a report without even interviewing Secretary of State Clinton.
Pickering's email advocates using Israeli NGOs, like Peace Now, to orchestrate demonstrations by Palestinian women against Israel to force Netanyahu into concessions that Palestinian Authority head Mahmoud Abbas could live with in a final peace agreement. Pickering acknowledged that State Department fingerprints could not be found on the gun behind the demonstrations, and thus the need for the Israeli NGOs. In short, he was advocating covert action against the Israeli government like something out of Eugene Burdick and William Lederer's 1958 political novel The Ugly American.
The concessions that Pickering imagined would of necessity have had to have go far beyond anything offered by Israeli Prime Minister Ehud Barak at Camp David. At Camp David, Yasir Arafat, who was far more popular than Abbas among the Palestinians, told President Clinton that he would be signing his own death warrant if he agreed to the Barak-Clinton proposals.
Barak's offer at Camp David was far beyond the Israeli consensus. And the Israeli public has become far less forthcoming after witnessing the baleful results of the Gaza withdrawal and the ever rising instability on its borders. In short, Pickering was seeking to pressure Israel into what most Israelis see as a suicide pact.
Pickering, as we said, is a Clinton intimate with a clear grasp of the policy goals of the woman who would be president. And his email made clear that at least in the Clinton State Department covert action to undermine the elected Israeli government was not unthinkable.
By seeking to intervene in an internal Knesset debate last week, the present State Department showed that it views Israel as a vassal state that should take instruction from the United States, not as a sovereign ally.
