When Passions Run High Sen. Ben Cardin’s anti-BDS bill spurs controversy, support

A protestor against the Israel Anti-Boycott Act shows displeasure with Sen. Ben Cardin’s legislation. (Photo by David Stuck)

On a sweltering late July afternoon in Baltimore City, about 20 people vocally protested against a hotly debated bill — the Israel Anti-Boycott Act — which focuses on boycotts of Israel and its settlements.

The demonstrators, most of whom were white, chanted “Viva, viva Palestina!” and “Free, free Palestine!” outside the Bank of America Financial Center at 100 S. Charles St., where Sen. Ben Cardin (D-Md.), one of the bill’s lead sponsors, maintains his local office. The hour-long protest was peaceful for the most part, but as it wound down, about a half-dozen activists took to the street and blocked traffic, leading drivers to honk their horns in frustration.

One of the protesters was a 70-year-old Baltimore resident named Ed, who preferred we not use his last name. Dressed modestly in a short-sleeved button-up shirt with khaki pants and a black fedora, Ed addressed the group on the sidewalk in a distinctly New York accent. The educator, who considers himself mild-mannered, spoke emotionally about an effort he feels Israel supporters are making to silence his voice on the basis of differing political opinions.

“I’m very grateful to be living in the U.S., but we are supporting a country [Israel] that is oppressing other people,” said Ed, who is Jewish. “That’s very offensive to me, so we will continue to speak out against this injustice. I have nothing against Jews who move to and live in Israel. I have nothing against the Jewish population surviving and thriving.”

The protest came after the American Civil Liberties Union (ACLU) sent a letter last month to the bill’s two lead Senate sponsors, Cardin and Rob Portman (R-Ohio), urging them to pull their support. In the letter, the ACLU cautioned the legislation was unconstitutional and violated First Amendment protections for free speech.

Advocates for the bill, however, assert that the notion that constitutionally protected free speech (and any other constitutional rights) will be restricted in any way is simply unfounded.

Sen. Ben Cardin (Photo by REUTERS/Joshua Roberts)

In an interview with the JT, Cardin, a staunch supporter of Israel, said he was disappointed with the ACLU’s assessment.

“I think the ACLU’s analysis of the bill is just not met with the same degree of attention to detail that you usually see from the ACLU,” Cardin said. “What has been said is just not accurate.”

The bill would expand the scope of the Export-Import Bank Act of 1945 and the Export Administration Act of 1979, which prohibit boycotts sponsored by foreign governments. It has generated significant bipartisan support. The Senate version had 46 co-sponsors from both parties, and a similar House of Representatives version has 249 co-sponsors as of press time.

Specifically, businesses would be prevented from complying with boycotts of Israel sponsored by intergovernmental organizations such as the United Nations and European Union. The penalties for breaking the law would be a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison. Those figures were established in 2007 under the Export Administration Act of 1979.

How the 20-year prison sentence would apply to those who violate the law left detractors with a feeling of uncertainty, to which Cardin said, “It would require intentional conduct to rise” to that level.

“If there is a need to clarify that, then we’ll clarify that more clearly,” Cardin added. “But we think we’re pretty clear. There is no criminalization here.”

There is nothing outlined, Cardin noted, that would prevent Americans from choosing not to do business with Israel or speaking out against Israeli policy favoring Jewish settlements — including outposts — on Palestinian-claimed land. Regardless of political beliefs, individuals who back a boycott of Israel would face no legal action, Cardin reiterated.

“The ACLU implied that we’re going to put people in jail for their speech, which is absolutely false, and that we created criminal sanctions for BDS activities, which is what we did not do,” Cardin said.

Some legal scholars also argue critics are exaggerating what the legislation actually does. Eugene Kontorovich is a professor at Northwestern University’s Pritzker School of Law and has helped write state-level anti-BDS legislation. Like Cardin, Kontorovich said the legislation is not about speech or viewpoints, but rather unfair and discriminatory business practices.

Kontorovich pointed out that the bill is in line with existing federal laws that are aimed at regulating commercial activity that unfairly targets Israel.

“Everyone was for the anti-boycott laws the U.S. passed nearly 40 years ago, which is a staple of Americans’ support for Israel and protects Israel from boycotts of foreign countries,” Kontorovich said. “It has been used on many occasions against companies that boycott Israel.”

Kontorovich added: “But it has never been used to go against boycott activists or people doing consumer boycotts or people saying, ‘I’m not buying Israeli products.’ Nothing in these amendments being made by Sens. Cardin and Portman would change that.”

Baltimoreans Split

Local Jewish residents are as divided and diverse in opinion as the elected officials and advocacy organizations pushing for and against the measure.

Proponents of the bill say updating the anti-boycott acts against Israel could not come at a better time, given that several United Nations agencies have initiated secondary boycotts of Israel. Last year, for example, the United Nations Human Rights Council unanimously passed a resolution to compile a list of companies that do business in the West Bank, East Jerusalem and the Golan Heights.

Bill Fox, 75, of Baltimore, is a pro-Israel activist, to put it mildly in his words. He sits on the national boards of Friends of the Israel Defense Forces (FIDF) and Israel Bonds and is a member of the national council of American Israel Public Affairs (AIPAC). Fox also is co-founder of the Baltimore chapter of the Republican Jewish Coalition (RJC).

One reason Fox said he feels the bill is timely is because it is aimed at curbing the Palestinian-led BDS movement, which he describes as an effort to delegitimize and destroy Israel.

“In my opinion, BDS is wrong,” said Fox, who specified his opinions do not represent any groups with which he is involved. “It is dangerous. It has the ability to do serious damage to Israel. It needs to be made clear, though, that anyone can still castigate or oppose Israel if they choose to do so. The left wing, which is different from liberals, is trying to push a narrative that is just not true.”

Opponents, on the other hand, took issue with what the bill would do, proclaiming it is a broad ban that would exercise government censorship.

One middle-aged man at the July protest — which was organized by several groups that support BDS, including Freedom2Boycott in Maryland — held a sign that read “F— your censorship.” Others had messages scribbled in magic marker on ripped pieces of white paper taped to the back of their hands that read, “Cardin will not silence me.”

Protestors demonstrate against the Israel Anti-Boycott Act outside Sen. Ben Cardin’s Baltimore office in the Bank of America Financial Center. (Photo by David Stuck)

Jonathan Rovner is a volunteer with the left-leaning Jewish Voice for Peace Baltimore chapter, which supports the BDS movement and helped co-organize the protest. In expressing his frustration with the bill, Rovner said, “Cardin and the Israeli government don’t represent all Jews and shouldn’t have the final say for all us.”

“This bill only targets BDS, so it doesn’t confront anti-Semitism,” Rovner added. “There is nothing in the bill that will do anything to stop a Nazi business owner who does not support Jewish people.”

Brian Hauss, a staff attorney for the ACLU, said through an organization spokesman that the legislation, if passed, would demonize the view of people who back BDS.

“The right to engage in a peaceful political boycott is squarely protected by the First Amendment and a proud part of America’s constitutional legacy,” Hauss said. “Whatever Congress thinks about boycotts targeting Israel, it should reject any attempt to expand the scope of criminal laws targeting peaceful political activity.”

That message resonated with Ronda Cooperstein, 59, of Pikesville, who volunteered with a local chapter of Jews for Israeli–Palestinian Peace for about 20 years until the group ceased operations in the early 2000s. Cooperstein was not among the group that protested outside Cardin’s office but nonetheless felt it was part of her Jewish values that made her feel compelled to speak out.

“If we want to achieve peace in the Middle East, this is not going to do that,” Cooperstein said. “It’s going to do the opposite and divide people even more. We need to come together, not be driven apart.”

Just as Cooperstein’s Judaism influenced her opposition, Cardin, a member of Beth Tfiloh Congregation, said his Jewish roots played a role in spurring him to craft the legislation.

“I have been extremely sensitive to strengthening the ties between the U.S. and Israel,” said Cardin, the top-ranking Democrat on the Senate Foreign Relations Committee. “So my faith is involved because of my values. I think the value of this relationship is critically important.”

Agreeing with Cardin is Dr. Gary Applebaum, 58, of Baltimore. Applebaum is involved with AIPAC and FIDF and is co-founder of the RJC’s Baltimore chapter.

Speaking for himself, Applebaum said anyone involved with pro-Israel efforts can see the why the United States would do what it can to safeguard and deepen its bond with Israel.

“From a tactical level, we need to make sure Israel is not harmed, especially since it is the one free democracy in the Middle East and perhaps our closest ally in the world,” Applebaum said. “When you have a free state and are aligned with them, you need to support them. It’s pretty simple. People who don’t get this issue don’t understand American fundamentalism.”

But Cooperstein said the passage of an anti-BDS federal law runs counter to the quest for a two-state solution to Israeli-Palestinian conflict — which Cardin supports — and send an unsettling message.

“This is just one more unproductive and inhumane policy that contradicts the two-state solution the U.S. says it wants for this region,” Cooperstein said. “What’s the endgame here? I just don’t see it or understand the point of this. It’s baffling to me and seems to impose more sanctions on what can and can’t be said.”

(Photo by David Stuck)

For others, the issue is not so cut and dry. Zach Silverstein, 27, of Reisterstown, said he has no position on the bill itself but felt companies should not be targeted if they choose to boycott Israel for political reasons. He also said he could understand why the United States would push such an action because of the unfair reputation he feels Israel has received from the media.

“I can understand where people on both sides of this issue are coming from — I really can,” Silverstein said. “But maybe we should just sit back and not get involved with issues like this.”

Owen Silverman Andrews, 29, of Baltimore, disputed that notion, saying Cardin should focus on peace and human rights.

In an email on behalf of Freedom2Boycott in Maryland, Silverman Andrews wrote that Cardin should “not expend further energy on this unconstitutional bill that undermines efforts to bring Israel to the negotiating table to achieve a resolution to the conflict.”

Freedom2Boycott in Maryland members are slated to meet with Cardin’s office on Friday, according to an email sent Monday from the group.

Maryland’s Impact

Support for barring BDS, meanwhile, has picked up steam across the country. North Carolina on Sunday became the 22nd state to pass a law or issue an executive order to prevent the practice, according to the JTA.

In the Maryland General Assembly, state lawmakers have wrestled with the idea of anti-BDS legislation three of the last four years. Last year’s proposed state law would have differed from the pending federal legislation. The Maryland legislation would have prevented companies that participate in the BDS movement from investing in the state retirement and pension system; it would also have prohibited them from securing state procurement contracts.

Though the bill failed to get a vote in the state House of Delegates or Senate, legislators in support of anti-BDS measures are closely watching the proposed federal legislation.

Sen. Bobby Zirkin (D-District 11), the lead sponsor of last year’s bill, said he plans to meet with Cardin in the not-too-distant future to discuss, among other things, his anti-BDS legislation. Zirkin said his top priority for the 90-day legislative session that begins next January would be to persuade lawmakers in Annapolis to support his measure.

In the meantime, he said, there is a possibility Republican Gov. Larry Hogan, a supporter of anti-BDS legislation, could issue an executive order banning the practice. But because another administration can repeal an executive order, Zirkin said he prefers to see it pass through the House and Senate before it reaches the governor’s desk to be signed into law.

(Photo by David Stuck)

“We’re going to be introducing the exact same legislation as last year,” Zirkin said. “Whatever tools are necessary to accomplish the goals of protecting the state of Israel from what I consider an absolutely wrong movement [BDS], we will bring to the table. I’m going to put even more intensity into that bill next year.”

The bill spurred impassioned debate when it was introduced last year, much like the proposed federal legislation. Hundreds of people attended the hearings, with dozens testifying both for and against the bill.

David Naftaly, 69, of Columbia, who has been involved in AIPAC for nearly 40 years, said the passage of Cardin’s bill would enhance the chances of Maryland passing its own law.

“I think Sen. Cardin is appropriately concerned with the number of states who have denounced the BDS movement by passing their own measures,” said Naftaly, who spoke on his own behalf. “The overwhelming support to stand with Israel in the face of this messenger movement cannot be more evident. I think it’s only a matter of time before Maryland makes that support known.”

jsilberman@midatlanticmedia.com