Washington Watch
News last week that the USA and Israel were about to sign a Memorandum of Understanding (MOU) advancing Israel’s entry into the US Visa Waiver Program (VWP) shouldn’t have caught us by surprise. But it did. For months, we had been assured by various Biden Administration officials that Israel could not meet the requirements of the programme. Concerns focused on the VWP’s statutory requirement that participant governments must guarantee full reciprocity to US citizens seeking entry – without regard to race, religion, or national origin.
For the Biden Administration to sign this MOU is an insult to Arab Americans, especially Palestinian Americans, given Israel’s decades of discriminatory entry/exit treatment of our community attempting to visit Israel or the Occupied Palestinian Territory (OPT).
As has been well documented, Israel routinely disregards US passports, blatantly ignoring the rights of Arab Americans and Americans practicing First Amendment expression for Palestinian rights. These US citizens have reported being harassed, detained, and outright denied entry by Israeli officials. During these incidents, Arab Americans have been strip-searched, questioned for hours about family and property histories, and even forced to give access to their social media accounts.
For months, Biden Adminisatration officials held that, like all other 40 countries in the programme, Israel must meet the statutory requirements including reciprocity before being admitted. Yet the US has signed this MOU when there has been no demonstrable change in Israel’s behaviour since the latest push to admit it into the VWP began two years ago. The requirement of reciprocity continues to be ignored with the blatant discrimination Israel exhibits in its treatment of Arab Americans seeking to enter the country or the OPT. In fact, since then, Israel has issued even more onerous restrictions on visiting Palestinian Americans as part of Israeli’s “Coordination of Government Activities in the Territories” (COGAT) rules.
In the draft of the MOU circulated, Israel’s restrictive COGAT procedures are left intact for a subset of U.S. citizens for at least a year. The COGAT procedures create an additional restrictive, short-term visa process for Americans entering the West Bank, undermining the guarantee of reciprocity required for admission into the VWP. While the MOU’s terms state that COGAT is superseded by the MOU, the next section clarifies that COGAT still applies to US Citizens that are West Bank residents until May 2024 at which point the VWP compliant program will “be made available to them.” At no point does the MOU state that VWP entry procedures will become the default for US residents of the West Bank even after full adoption of VWP procedures. Further, travel to the OPT are governed by the COGAT rules, but what if I am a Jewish American going to an illegal Israeli settlement in the West Bank? How is allowing one set of rules for Palestinian Americans and another for Jewish Americans not an example of our government endorsing racism against its citizens? Furthermore, throughout the MOU, the US allows Israel the leeway to deny visitors entry for undefined security concerns— a rubric which Israeli has too often abused in the past.
By admitting Israel into the VWP in violation of statutory requirements, the Administration will choose to abandon the rights of Arab American citizens to give Israel a political perk. This decision is an egregious breach of responsibility owed by the US government to its citizens. It is an insult to my community— and the law that created the visa waiver programme.
One month ago, we were informed that there would be a 30-day test to see if Israel would apply non-discriminatory policies to visitors. We scoffed at this plan noting that after having endured five decades of abusive behaviour at the hands of Israeli border officials, we demanded more, concrete evidence of change.
The hope we had that our government was paying attention to our concerns was bolstered by recent evidence of the Biden Administration’s frustration with the policies of Prime Minister Benjamin Netanyahu. The USA has asked the Israelis to not build settlements— they announced 5,000 more units. We pushed them to control settler violence and stop home demolitions— it continues. We’ve pressed them to stop provocative raids— yet in just the past year, Israeli forces were directly responsible for killing US citizen Shireen Abu Akleh during a raid. So when President Biden called Netanyahu’s government the “most extremist” in Israel’s history and continued to delay inviting him to meet in the USA, we assumed that the Administration wanted to send a message to the Israeli leader and his coalition.
What message did Biden send? In a day’s time, the Administration announced both a meeting with the Israeli PM and the decision to sign the MOU on the VWP.
[Note to historians: it’s this confounding US practice of continually rewarding Israel’s bad behaviour that has created their sense of impunity and fueled the very extremism about which we claim to be concerned.]
Reading through the circulating US-Israel MOU is deeply troubling. First, we do not yet have the official MOU but rather are reviewing versions shared by news outlets and various sources. Why has the Biden Administration not yet released the MOU? And of the existing 40 countries in the programme, how many have had to have a “reciprocity outline” as the Israeli statement identified it? On initial review, while other countries have signed MOUs about enhanced security around the VWP, there has been no other MOU for a visa waiver country that redefined reciprocity to allow for disparate treatment of American citizens based on their ethnicity or national origin. Reciprocity is required in the statute. If Israel met the requirements of the law— and therefore the visa waiver programme— redefining reciprocity in an MOU would not be required.
Additionally, on the first page of Annex A in the MOU, we find the following, “Israel’s regulations state that discrimination— the unfavorable treatment of a person, or group of persons, based on several factors which can include their national origin, religion, or ethnicity – is unacceptable.” I repeat, “discrimination. . .is unacceptable.” While allowing for declarative statements that defy fact and claiming to be a roadmap to “clarify” reciprocity, what the MOU does is allow Israel to redefine reciprocity to serve its purposes. With this MOU, the Administration has disregarded the legal requirements of joining the VWP to Israel’s benefit.
By admitting Israel into the VWP in violation of statutory requirements, the Administration will choose to abandon the rights of Arab American citizens to give Israel a political perk. This decision is an egregious breach of responsibility owed by the US government to its citizens. It is an insult to my community— and the law that created the visa waiver programme.
