Legislators in states throughout the U.S. are trying to push through pro-Israel bills that would punish Palestinian human rights advocates who endorse boycotts like those organized in order to combat U.S.-backed apartheid in South Africa.
Legal groups have long warned that this legislation amounts to “21st-century McCarthyism” and would create discriminatory “blacklists” of Palestinian solidarity activists.
New York Gov. Andrew Cuomo has propelled this neo-McCarthyite movement to the next level, amid intense pressure from pro-Israel groups.
For months, the New York legislature has unsuccessfully tried to pass anti-boycott legislation. Cuomo circumvented this legal process completely on Sunday and signed a surprise executive order that punishes institutions that support a boycott of Israel on behalf of Palestinian human rights.
Executive Order No. 157 declares that “the State of New York will not permit its own investment activity to further the BDS campaign in any way, shape or form, whether directly or indirectly.”
BDS refers to the Boycott, Divestment and Sanctions, an international grassroots movement that promotes nonviolent economic means to pressure Israel to comply with international law and cease its violations of Palestinian human rights. The global campaign was called for by Palestinian civil society in 2005.
Cuomo's new executive order, in its own language, establishes "a list of institutions and companies that... participate in boycott, divestment, or sanctions activity targeting Israel, either directly or through a parent or subsidiary."
This blacklist will be posted on the website of the New York Office of General Services, and will be updated at least twice a year.
Legal organizations and social justice groups slammed Cuomo for the executive order.
Baher Azmy, legal director at the Center for Constitutional Rights, said "Governor Cuomo's measure is illegitimate and an obvious pander. Procedurally, he sought to avoid any transparent debate about the centuries-old validity of boycott as a means of protest in this country."
"On substance his 'enemies list' approach to suffocate opinions he and his financial supporters disapprove of is plainly unconstitutional in its McCarthyist vision," Azmy added.
The New York Civil Liberties Union characterized the new policy as a troubling "blacklist."
"Whenever the government creates a blacklist based on political views it raises serious First Amendment concerns and this is no exception," NYCLU Executive Director Donna Lieberman told Salon.
“The state cannot penalize individuals or entities on the basis of their free expression, and political boycotts are a form of free expression,” she added.
Katherine Franke, a professor at Columbia Law School and chair of the board of directors at the Center for Constitutional Rights, even compared Cuomo to Cold Warrior Sen. Joseph McCarthy.
"Governor Cuomo has decided that his moral compass points in the direction of Joseph McCarthy rather than Rosa Parks,” Franke said.
Executive Order No. 157 declares that “the State of New York unequivocally rejects the BDS campaign and stands firmly with Israel,” referring to Israel as “a critical and invaluable ally.”
Under the order, all government agencies and departments over which the governor has authority and all public-benefit corporations, public authorities, boards and commissions must divest their money and assets from any institution or company that is included on the BDS blacklist by June 2017.
Cuomo summarized the new policy in a tweet: “If you boycott Israel, New York will boycott you.”
Cuomo's office justified the executive order to The New York Times by condemning the strategy of sanctioning a party "for engaging in commercial activity," but Pulitzer Prize-winning journalist Glenn Greenwald pointed out that this is precisely what Cuomo did a mere two months ago vis-à-vis North Carolina.
Gov. Cuomo supported boycotting the state of North Carolina after it passed an anti-transgender law. He even banned New York state officials from traveling to North Carolina in support of the boycott, while now punishing those who boycott Israel in protest of its human rights violations and illegal military occupation of the Palestinian territories.
Greenwald lambasted the "suffocating" "stench of hypocrisy of Cuomo and Democrats," stressing that, "to the Governor of New York, it’s not only permissible but noble to boycott an American state, but it’s immoral and worthy of punishment to boycott Israel, a country guilty of a decades-long brutal and illegal occupation."
New York Sen. Chuck Schumer, meanwhile, has heaped praise on Cuomo for his executive order, calling it "an excellent idea." Schumer said he is "looking at introducing a federal law to do the same thing" across the country.
Legal experts say the new policy is little more than an unconstitutional, "McCarthyite" blacklist.
"Governor Cuomo can’t wish away the First Amendment with an executive order. It's clear that Cuomo is bypassing the legislative process in order to muzzle morally-driven positions protesting systemically discriminatory state policies and a military occupation that is 49 years old this week," said Dima Khalidi, the founder and director of nonprofit legal advocacy organization Palestine Legal and a cooperating counsel with the Center for Constitutional Rights.
"As with the constitutionally faulty legislation that was pending in Albany, this Executive Order may not infringe — directly or indirectly — on the rights of New Yorkers to engage in constitutionally protected boycotts to effect economic, political or social change," she told Salon.
"There is no mistake that this McCarthyite effort to blacklist and withdraw state investments from groups that boycott Israel for its human rights abuses is intended to intimidate and silence a growing movement for Palestinian freedom, justice and equality, at Israel’s behest," Khalidi added. "It cannot pass constitutional muster."
Palestine Legal issued a statement calling the executive order "a blatantly unconstitutional attack on freedom of speech [that] establishes a dangerous precedent reminiscent of McCarthyism."
"It is unprecedented for a state to create a list of entities that support or engage in a First Amendment-protected political activity and deny them financial benefits because of it," the group said.
"Boycotts are a constitutionally-protected form of speech, association and assembly, and have a long history of being used successfully to address injustice and demand political change. The State of New York may not punish businesses, organizations and other entities because of their speech and political views."
"This executive order would chill First Amendment protected activities by requiring persons to avoid or renounce such activities before they can be considered beneficiaries of public funds," Palestine Legal added. "It will certainly invite legal challenges."
On the other side, pro-Israel groups saluted Cuomo for the new policy. The Israel Project released a statement "applauding" Cuomo for being "the first governor to use an executive order to prevent state agencies from doing business with companies engaged in this anti-Israel campaign."
The Israel Project CEO Josh Block called BDS a "dishonest effort to single out the democratic state of Israel for discrimination" and insisted that the "people of New York and the people of Israel share an unshakable bond, and this is a powerful demonstration of that longstanding and valuable relationship."
A public relations statement on behalf of The Israel Project boasted that the organization "played a key role in advocating for states across the country — including New York — to" oppose BDS.
The Israel Project praised Cuomo for also marching in a pro-Israel parade in New York City after signing the executive order.
Cuomo tweeted a photo of him marching in the parade, alongside a photo of the New York Police Department marching with Israeli flags. The NYPD has a branch in Israel.
The United Jewish Appeal Federation of New York also issued a statement saying it "applauds Governor Cuomo for being the first governor in the nation to issue an executive order directing state entities to divest all public funds supporting the Boycotts [sic], Divestment and Sanctions campaign against Israel."
"This executive order clearly demonstrates the discriminatory nature of BDS against the State of Israel and and [sic] we are proud that the Governor of New York State has taken this historic action to stand with Israel and reject the BDS movement," the group added.
Opponents of BDS characterize the movement as anti-Semitic, even though many of the leaders in the BDS movement are themselves Jewish. Even some prominent Israeli human rights activists support the BDS movement, and created the group Boycott from Within.
In the U.S., left-wing Jewish groups are some of the most outspoken supporters of BDS.
Jewish Voice for Peace, or JVP, has strongly advocated against anti-BDS legislation. In May, the more than 100 organizations comprising New York’s Freedom to Boycott Coalition signed a letter to all New York state assembly and senate members, calling on them to oppose pending anti-boycott bills. JVP's five New York state chapters, along with the national organization, signed the letter.
“New York may blacklist me for working for justice for Palestinians,” JVP Executive Director Rebecca Vilkomerson warned in Salon in February.
In a statement on the new executive order, Vilkomerson blasted Cuomo, maintaining his decision "shows how out of touch the political leadership is with the growing numbers of Americans who support the use of nonviolent tactics to achieve freedom and equality for Palestinians."
"Shame on Governor Cuomo for using an anti-democratic executive order to push through a McCarthyite attack on a movement for justice," she said. "Boycotts have long been a tactic used by social justice movements to bring about urgently needed change for a more just and equal society, and the movement for Palestinian rights should not be singled out."
Jane Hirschmann, a co-founder of the New York-based social justice group Jews Say No!, also condemned Cuomo for "attempting to stamp out a peaceful democratic movement for human rights."
"Americans have a long history in participating in boycotts when governments refuse to recognize legitimate demands for justice such as ending Apartheid in South Africa and Jim Crow laws in the South. Both ended in part through nonviolent boycotts," Hirschmann told Salon. "Palestinians deserve to be treated with dignity and have their human rights respected."
In a speech accompanying the new order. Cuomo called on elected officials throughout the U.S. to implement similar discriminatory policies.
"I’m sad as a Democrat. As a Democrat. I always took for granted that there was a natural relationship with Israel that was unquestioned and was that way for many, many years," he said.
Cuomo took an indirect swipe at presidential candidate Bernie Sanders, who has opened a space in mainstream U.S. politics to criticize Israel's human rights violations. In the Brooklyn Democratic presidential debate, Sanders condemned Israel's extremely disproportionate and indiscriminate bombing of Gaza, and he has since remained outspoken about Israel's five-decade-long military occupation of and systematic discrimination against Palestinians.
“You now have aspects of the Democratic Party that are being critical of Israel as being disproportionate in its response,” Cuomo lamented. He insisted that, "by definition," Israel "can’t be disproportionate" in its brutal attacks on the densely populated Gaza Strip, which does not have an air force or conventional army.
Leading human rights organizations, including Amnesty International and Human Rights Watch, thoroughly documented war crimes committed by the Israeli military in its summer 2014 bombing of Gaza. The U.S. State Department has acknowledged these crimes.
In May, Sanders appointed three supporters of Palestinian rights to the Democratic National Committee platform drafting committee.
Sanders' criticism of Israel's increasingly far-right government reflects a shifting left-wing base in the U.S. A recent Pew poll found that support for the Palestinians living under illegal Israeli military occupation is growing in the U.S. Liberal Democrats and supporters of Sanders are now more likely to support the Palestinians than Israel.
Under Cuomo's executive order, the burden of proof is on those accused of supporting BDS. The commissioner of the Office of General Services, who oversees the blacklist, is legally obligated to notify an institution or company that it will be placed on the blacklist, and give it "at least 90 days to present the Commissioner with evidence that the institution or company does not in fact participate in boycott, divestment, or sanctions activity targeting Israel, either directly or through a parent or subsidiary."
If the institution wants to be removed from the list, it "may request removal from the list by submitting written evidence to the Commissioner that the institution or company no longer participates in boycott, divestment, or sanctions activity targeting Israel, either directly or through a parent or subsidiary."
The order uses unspecific language, specifying support for BDS could be "direct or indirect," giving the government more leeway to crackdown on organizations that criticize the Israeli government's human rights record.
Several legal groups told Salon they are already "discussing" taking legal action against Cuomo's executive order.
Baher Azmy, legal director at the Center for Constitutional Rights, said "Nelson Mandela, who both understood the need to challenge state repression through economic pressure and who prioritized the Palestinian struggle for human rights, would rightly be appalled by this craven pander to Israeli Prime Minister Netanyahu's ugly agenda."