Last October, as protests against Israel’s war on Gaza swept U.S. campuses, two prominent pro-Israel groups wrote to nearly 200 university and college administrators urging them to investigate their students for possibly violating federal law by promoting pro-Hamas, anti-Israel messaging.
The Anti-Defamation League, or ADL, and the Louis D. Brandeis Center for Human Rights Under Law suggested that members of Students for Justice in Palestine, the largest Palestine solidarity campus organization in the country, may have been violating a law that prohibits people from providing “material support” — a broad category that includes money as well as services or other assistance — to U.S.-designated terror groups. “We certainly cannot sit idly by as a student organization provides vocal and potentially material support to Hamas, a designated Foreign Terrorist Organization,” the ADL and the Brandeis Center wrote.
There is no evidence SJP has ever provided material support to Hamas, and the letter prompted widespread condemnation. The American Civil Liberties Union called on leaders in higher education to “reject baseless calls to investigate or punish student groups for exercising their free speech rights.”
The federal material support law has been the most frequently cited law in prosecutions throughout the U.S-led war on terror. And its invocation by the ADL was a full-circle moment for the group, which helped pass it three decades ago largely to undermine support for Palestinians in the United States. Long before 9/11, U.S. terror laws were shaped by a distinctly anti-Palestinian agenda and often promoted by pro-Israel organizations, a new report published on Wednesday reveals.
“Many foundational antiterrorism laws arose during or were adapted to pivotal moments in the Palestinian liberation struggle, often pushed by Israel-aligned groups to reflexively cast the veil of ‘terrorism’ almost uniquely on Palestinians,” the report notes. “The same Zionist organizations that pushed for expanded antiterrorism laws — most notably the Anti-Defamation League (ADL) — now brazenly tar all advocacy of Palestinian liberation as support for terrorism.”
Todd Gutnick, a spokesperson for the ADL, disputed the characterization as “false and a complete distortion of our position.” In an email to The Intercept, he wrote that the group’s advocacy of antiterrorism legislation was aimed at different organizations it was monitoring at the time, including the Kurdistan Workers’ Party, the Liberation Tigers of Tamil Eelam, and Hamas. “This advocacy did not extend to the Palestinian movement or its supporters broadly — unless those supporters were providing material support to a terrorist organization in violation of federal law,” Gutnick added.
He also dismissed criticism of the ADL and Brandeis Center’s letter to campus leaders. “We fully recognize and support students’ First Amendment rights to freedom of speech, even odious speech, and have made that clear,” he wrote. “But at a time when some SJP leaders were echoing the position of Hamas so closely and with such intensity, and in a manner that was tinged with threats of violence, we strongly believe that an investigation is warranted.”
Emma Saltzberg, a member of Diaspora Alliance, an organization that fights the politicization of antisemitism, told The Intercept that the ADL’s call for terrorism investigations is contrary to its stated mission as a civil rights group.
“It’s an active attempt to deny Palestinian students and students who are in solidarity with them — many of whom are Jewish — their civil rights to free expression and free speech,” Saltzberg said, “and to smear legitimate political activism as outside the bounds of acceptable discourse and to attach real material penalties to that.”
She added that the effort, while focused on advocacy for Palestinians, could have far-reaching implications. “Advocating this kind of investigation, criminalization against activists for Palestinian rights, is laying the groundwork for future repressive state activity,” Saltzberg said. “And that is something that should scare people.”
An Anti-Palestinian History
U.S. counterterrorism legislation and policies since 9/11 have predominantly targeted Muslims abroad and at home, but earlier efforts to codify terrorism in U.S. law specifically singled out Palestinians, according to the new report.
The earliest reference to “terrorism” in federal legislation dates back to the 1969 Foreign Assistance Act and involves the United Nations Relief and Works Agency for Palestine Refugees in the Near East, which is once again under attack amid Israel’s current war on Gaza. Congress stipulated at the time that no UNRWA funding should go to “any refugee who is receiving military training as a member of the so-called Palestine Liberation Army … or who has engaged in any act of terrorism,” the report notes. The main sponsor of the provision, late New York Rep. Leonard Farbstein, singled out U.N.-run refugee camps, claiming — not unlike some legislators today — that “these camps are being used for training purposes and the young children for whom the schools are being built and who are being fed and clothed are being trained as terrorists in these refugee camps.”
While the bill offered no definition of terrorism, the reference “set down a decades-long pattern that legally inscribed the Palestinian — and especially the refugee — as the default terrorist,” the report notes.
Throughout the 1970s, Congress passed a series of laws aimed at restricting assistance to states that were hosting or otherwise supporting members of the Palestinian resistance movement. Zionist groups advocated for those laws, according to the report, and pushed for creating a mechanism to trigger such sanctions. In 1979, those efforts culminated in legislation that endowed the secretary of state with the authority to designate foreign countries as “state sponsors of acts of international terrorism.” Since then, the U.S. has repeatedly applied the label to countries in the Middle East and North Africa, excluding them from aid and trade and isolating them from the broader international community.
In 1987, weeks after the outbreak of the largely nonviolent First Intifada, Congress for the first and only time designated a nonstate group, the Palestine Liberation Organization, a “terrorist organization.” The move was part of an effort to oust the PLO from the U.S., including from the United Nations headquarters in New York City, where it had a mission as a nonstate “observer.” While the ouster endeavor failed, the congressional legislation also created the State Department’s “foreign terrorist organization” list, requiring the executive branch to make annual designations of terror groups. Within a year, the State Department added dozens of groups, many pro-Palestinian ones, to the list, which has since ballooned to include a wide range of primarily Muslim groups.
In the following years, U.S. lawmakers inscribed “terrorism” provisions in immigration and civil law, primarily in an effort to target members of the Palestinian resistance movement. In 1990, Congress amended the Immigration and Nationality Act to list “terrorism” as a basis for deportation and the denial of entry into the United States. The legislation once again singled out the PLO, noting that any “officer, official, representative, or spokesman” for the group would be considered to be engaging in terrorist activity.
Two years later, Congress passed the Antiterrorism Act, incentivizing U.S. citizens to file civil suits over acts of international terrorism abroad. The law came on the heels of the 1985 killing by members of the Palestine Liberation Front of Leon Klinghoffer, a U.S. citizen who had been onboard the hijacked Achille Lauro cruise ship. A small conservative think tank drafted the bill, and several Zionist groups, including the ADL, advocated for it. The Klinghoffer family twice testified in favor of the bill on behalf of the ADL. In the first decade after the law was passed in 1992, some 63 percent of lawsuits citing it were related to Palestine.
Material Support
The ban on material support to foreign terrorist organizations alone accounted for more than half of federal terrorism prosecutions brought in the aftermath of 9/11.
Federal courts have interpreted the material support statute broadly, chilling efforts to provide humanitarian aid in areas where groups deemed terrorist entities operate. But while it exclusively applies to support for foreign groups, it originated domestically after the 1995 Oklahoma City bombing by white supremacists Timothy McVeigh and Terry Nichols.
The bombing prompted calls for sweeping counterterrorism legislation that would give ample powers to target domestic and foreign actors. The legislation was heavily shaped by ADL.
The Clinton administration supported a version of legislation that included elements from ADL’s counterterrorism agenda. Members of ADL testified in Congress in favor of legislation aimed at foreign groups. As Democrats and Republicans disagreed over expanded law enforcement authorities, ADL led a campaign by pro-Israel groups to fuel fears that Hamas would fundraise in the U.S., convincing legislators to reintroduce terrorism provisions aimed at foreign groups.
Understanding this history is essential to prevent even more draconian legislation from arising due to current events like Hamas attacks. The Biden administration has increased surveillance of Palestine supporters post-attacks while state governments have used terrorism statutes against critics of Israel’s war. Legislators have proposed extreme measures like expelling Palestinians from the U.S.
Since October 7th, members of Congress have proposed racist anti-Palestinian bills. Pushing back against these initiatives is crucial as seemingly innocuous proposals may end up doing more harm.
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