Opinion | The Surprising New Battleground In the War Against Palestinian Rights: Your Local Courthouse
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On November 26, 2018, a New York-based lawyer named David Abrams announced that he had filed a lawsuit against Airbnb over its decision to stop providing services in West Bank settlements.
Abrams filed the lawsuit on behalf of a “Jewish-owned” Israeli corporation based in “Judea and Samaria” — more commonly known as the West Bank — which Abrams himself had incorporated in New York in March 2016.
According to the complaint, the corporation recently registered as a user of Airbnb with the intention of acquiring properties and using Airbnb to rent them out, a plan foiled by Airbnb’s decision to no longer list properties in West Bank settlements. The suit, which claims that Airbnb is engaging in illegal discrimination and has “adopted and endorsed the anti-Semitism of Palestinian Arab policy,” is seeking damages of $75,000 and an injunction against Airbnb’s settlements-focused policy.
The lawsuit’s legal merit is dubious, given that Airbnb still operates in Israel proper and provides services to people there — and worldwide — irrespective of their religion. And the settlements are illegal according to international law, and not considered part of Israel proper even by the Israeli authorities.
But the Airbnb lawsuit is interesting for the context that gave rise to it: an ongoing and expanding campaign that seeks to exploit America’s laws, regulations, courts, and financial systems as tools to target Palestinians and to quash international support for and solidarity with them.
In principle, there’s nothing wrong with people or groups challenging discrimination, or raising alarms about work they believe supports terror or breaks U.S. law. In practice, there is cause for concern when weak, immaterial, or unsubstantiated allegations are weaponized to attack businesses, or individuals, humanitarian aid groups, and civil society organizations.
Such attacks are even more problematic when they are motivated by political and ideological goals. They are especially alarming when they target free speech, or threaten non-governmental organizations, known as NGOs, that provide vital humanitarian aid; likewise, when they undermine groups working to promote democracy, support the rule of law, or those that defend human rights, civil rights, women’s rights, or children’s rights.
And they have implications that reach far beyond the Israeli-Palestinian arena.
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Abrams’s legal activism began long before the Airbnb case, in May 2015, when he established The Zionist Advocacy Center. Six months later, he filed a whistleblower lawsuit alleging that the humanitarian organization founded by former President Jimmy Carter had defrauded the U.S. government by supporting terrorists.
The Carter Center is a highly respected non-governmental organization that works globally to improve health, resolve conflict, and strengthen democracy — including in the Israel-Palestine arena.
Abrams’s case, kept secret by the court until January 2018, argued that the Carter Center had provided material support to terrorists by way of events it had organized with Palestinian political parties and factions.
Abrams contended – based on information and photos found online – that this material support consistent of providing terrorists with, “physical assets of fruit, cookies, bottled water, and presumably other food and drink,” “a physical facility in which to participate in a meeting,” and a “hospitable place” for networking.
None of this was paid for with U.S. funds. But Abrams argued that it still violated the terms of contracts the Carter Center had signed with the United States Agency for International Development because of something known as the False Claims Act.
Every USAID contract requires its signatory to affirm that in the past ten years the partner organization did not provide any “material support” to terror.
This may seem like a fair expectation, but the term “material support” is treacherously ambiguous. After 9/11, the U.S. adopted a legal definition of “material support” that was both expansive and opaque; in the years since, courts have broadened and blurred its definition further. And Abrams leveraged this ambiguity in his attack against the Carter Center.
Despite this ambiguity, most reasonable people would not view the Carter Center’s convening of dialogues aimed at facilitating peaceful discourse and urging Hamas to recognize Israel’s right to exist, give up violence, and accept previous peace agreements, as material support for terror.
The Department of Justice seems to agree. On May 31, Abrams’s case against the Carter Center was dismissed. Not only was it without merit, but, the DOJ wrote in its motion, “at its essence, the complaint articulates a difference in opinion with the Carter Center about how to resolve the conflict in the Middle East.”
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U.S. law defines terrorism as violent acts intended to intimidate or coerce a civilian population or a government’s policy. And U.S. anti-terror laws and material support regulations are intended to target those who plan, carry out, and fund terrorism.
These laws are reasonable and just, as is the False Claims Act, intended to punish contractors who defraud U.S. taxpayers, and to enable “whistleblowers” to help by bringing non-public information to the government’s attention.
But Abrams appears to have developed a strategy that exploits these laws not to fight terrorists or their funders, but to intimidate and coerce NGOs into abandoning moral, humanitarian, political and financial support for Palestinians. And he seems to be using the False Claims Act not as a tool to go after NGOs that commit genuine fraud or that misuse taxpayer funds, but as a weapon to attack NGOs that he considers anti-Israel.
Indeed, Abrams is not shy about the political motivation behind his work. In a recent article entitled “Suing Anti-Israel Organizations,” Abrams briefly acknowledged “the right of everyone to criticize Israel” before making clear that his lawsuits are meant to serve “as notice on all these NGOs that their anti-Israel activities are being watched carefully and that advocates will react quickly and surely, should they step over the legal line.”
And he does intend it as a notice on “all these NGOs.” In September of 2018, Abrams boasted that he had two more False Claims Act cases pending and another two under preparation, which may or may not include the three new lawsuits he announced on December 18, 2018, each reportedly targeting a university.
Worse, Abrams is not alone. Legal attacks like these are being launched by an array of individuals and groups in the U.S., Europe, and Israel, including Israel’s International Legal Forum (which recently became an official contractor for the Israeli Ministry of Strategic Affairs) and Shurat Hadin; the American Center for Law and Justice and the Lawfare Project; and UK Lawyers for Israel. They are bolstered by NGO Monitor, a Jerusalem-based organization, largely funded by U.S. donors, that has worked for years to build the case that virtually all work with Palestinians is tainted by terror.
The DOJ sided with reason in the case of the Carter Center. But Abrams had better luck with another NGO target, Norwegian People’s Aid, against which he filed a whistleblower lawsuit in July 2015.
Like in the Carter Center case, Abrams alleged that NPA violated the False Claims Act. He argued that the Norwegian NGO’s programs in Gaza and Iran involved material support for terror, which in turn violated anti-terror certifications NPA signed in connection with USAID-funded work elsewhere.
Abrams laid out his strategy against NPA in a November 2018 article, which involves taking advantage of the ambiguous meaning of “material support.”
“Material support of terrorism is not limited to obvious matters such as providing cash or weapons,” Abrams wrote. Rather, it can include “virtually any support or assistance — such as providing dispute resolution training.”
Similarly, Abrams suggested taking advantage of the fact that the anti-terrorist certification applies not only to activities funded by USAID, but to all of a grantee’s operations, regardless of who funds them.
In contrast to the Carter Center case, the U.S. government opted to support the case against NPA, leaving the NGO two options: pursue a potentially long and costly legal battle which, if it ended in a loss, could bankrupt the entire organization, or accept a settlement.
NPA opted to settle. “Although we have disagreed on the fairness of the claim,” NPA stated, they agreed to settle “due to the estimated costs, resources and time necessary to take this case to trial” and their desire “to focus on our mission of making the world a safer and more just place.”
NPA paid the U.S. $2,025,000 in the settlement.
And the Zionist Advocacy Center’s cut as the “whistleblower” amounted to more than $300,000.
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While awaiting movement on his False Claims Act cases, Abrams quietly filed a different kind of legal attack in January of 2016. He petitioned the Internal Revenue Service to revoke the charitable status of Médecins Sans Frontières, also known as Doctors Without Borders.
Abrams alleged that MSF was guilty of “collaboration with Hamas in terms of provision of medical services” in the Gaza Strip. Like in the NPA and Carter Center cases, his evidence consisted of public information gleaned from the Internet.
In August 2018, Abrams announced that the IRS had rejected his petition against MSF. But others were already adopting similar tactics, apparently seeking to undermine the financial operations of targeted organizations.
In October 2018, the British organization UK Lawyers for Israel announced that PayPal had cut off services for the NGO War on Want, following a complaint to UK authorities by UKLFI and the U.S.-based Lawfare Project. In June 2018, UKFLI and the Lawfare Project filed a similar complaint against an NGO called Medical Aid for Palestinians.
Over the course of 2018, UKLFI claimed credit for Citibank and Arab Bank cutting off services to Defense for Children International-Palestine; announced it had pressured a provider into cutting off financial services to a U.S. foundation over its support for several Palestinian NGOs; and boasted that it had gotten Visa, MasterCard, and American Express to cut off services for four Palestinian NGOs.
And on December 21, 2018, it was announced that a U.S. financial service provider had blocked accounts linked to the Boycott, Divestment and Sanctions movement — reportedly in response to a complaint lodged by the Israeli lawfare group Shurat HaDin, working in coordination with the Israeli Ministry of Strategic Affairs.
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On October 31 , 2018, Abrams and the International Legal Forum teamed up again to file another kind of politically motivated lawsuit related to Israel.
Six months earlier, activists in Durham, North Carolina had campaigned against what they claimed was the militarization of civilian policing, calling on the city to abstain from police exchanges with Israel. Following controversy and debate, the Durham City Council declined to pass a resolution in the matter, instead adopting a non-binding statement.
In a Facebook post announcing the new lawsuit, Abrams wrote, “Durham’s recent resolution against police exchanges with Israel is a violation of the North Carolina constitution.” Based on this allegation, he and the ILF – representing two “volunteer policemen in Israel” – are suing the City of Durham for illegal discrimination.
The legal merit of the lawsuit appears to be dubious in the extreme: The “resolution” at the core of the complaint does not exist, and no actual discrimination against the plaintiffs is alleged to have taken place.
But this lawsuit is an example of another tactic in the lawfare campaign against those supporting or showing solidarity with the Palestinians: lawsuits filed for the apparent purpose of chilling free speech and political activism, otherwise known as strategic lawsuits against public participation, or “SLAPP suits .”
This isn’t Abrams’s first Israel-related suit of this nature. In July 2016, he sued the American Studies Association, alleging that by refusing to admit his client, “Athenaeum Blue & White, an Israeli not-for-profit” as a member, the ASA engaged in an unlawful boycott of an Israeli academic institution.
But Abrams client, Athenaeum Blue & White, has no online presence and was incorporated in New York by Abrams himself on the day he filed the lawsuit.
Similarly, in June 2016, Abrams sued the National Lawyers Guild, claiming anti-Israel discrimination after the NLG declined to publish in its dinner journal an advertisement Abrams submitted on behalf of another client, “Bibliotechnical Athenaeum.” That client, too, was incorporated in New York by Abrams himself three months prior to the filing of the lawsuit, and as of this writing has no online presence other than a website consisting of five seemingly random posts dating between April and November 2016. They provide neither information about what the organization does nor any names or contact information for anyone associated with it.
It’s the same client Abrams is representing in the case against Airbnb.
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These efforts would be alarming enough if they only affected Palestinians and their supporters. But the implications go much further.
The tactics targeting NGOs like the Carter Center and NPA threaten America’s ability to work with critical partners around the world, laying the groundwork for such NGOs to be attacked by litigants pursuing any chosen political agenda, or driven by strictly pecuniary motives. In doing so, these tactics threaten to undermine America’s ability to address critical challenges and promote its own interests – from responding to humanitarian crises, to promoting democracy and rule of law, to preventing actual terrorism.
Similarly, the pressure on financial service providers to cut services to Palestinian NGOs and groups that work with them, based on “six-degrees-of-terrorist-contamination”- style allegations, risks creating a how-to guide for parties with any political axe to grind to defame and de-fund targeted organizations, regardless of the nature of the work these organizations do or the weakness of the allegations against them.
And the questionable lawsuits threaten free speech, waste U.S. courts’ time and squander American taxpayer money.
All of this is in addition to the efforts – which burst into the public’s consciousness at the end of 2018 – to legislate in both state and federal laws an unconstitutional free speech exception for Israel.
All in all, tactics are being tested, strategies honed, and legal and regulatory precedents shaped in ways that not only threaten those working on issues related to Israelis and Palestinians, but that could be harnessed to any ideological or political agenda, to the potential detriment of the rights of U.S. citizens and the interests of the nation.
Correction: An earlier draft misidentified NGO Monitor as being based in Geneva. It is based in Jerusalem. We sincerely regret the error.
Lara Friedman is the President of the Foundation for Middle East Peace.
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