'The scope of this sanctioning authority is unprecedented,' the lawsuit states
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A Biden administration executive order that allows the U.S. to sanction American Jews living in the West Bank prompted a group of Israelis to file suit against the lame-duck administration, challenging the constitutionality of the first of its kind sanction regime.
Following the Oct. 7 terrorist attack on Israel, President Biden signed an executive order (EO) in February, imposing sanctions on "persons undermining peace, security, and stability in the West Bank." As a result, the sanctioned individuals have had their bank accounts frozen, credit cards canceled and faced an inability to conduct basic life activities. Critics say the move allows the administration to sanction Jews in Israel who disagree with the administration’s policies, which they believe to be a violation of the constitutional rights of U.S. citizens in Israel and their supporters in America.
Biden said, in announcing the EO, that "the situation in the West Bank-in particular high levels of extremist settler violence, forced displacement of people and villages, and property destruction-has reached intolerable levels and constitutes a serious threat to the peace, security, and stability of the West Bank and Gaza, Israel, and the broader Middle East region."
In response, the American Christian nonprofit, Texans for Israel, and several American Jews living in Israel filed a lawsuit in federal court in August, challenging the EO on the grounds that it was a violation of their free speech rights, as well as their rights to due-process and equal-protection under the law.
"The scope of this sanctioning authority is unprecedented, as it targets beliefs held by many, if not most Americans," the lawsuit states.
Eugene Kontorovich, a professor at George Mason University Law School, who is a member of the legal team challenging the sanctions in federal court, told Fox News Digital that sanctions like those detailed in the lawsuit have been leveraged as a way to silence policy disagreements.
"The shocking thing is, after October 7, in February, while Israel has been in a war for its survival against an Iranian axis of multiple countries, the Biden administration took this time to implement a new and unprecedented sanctions regime targeted at Israelis and their supporters in America," because they simply don't agree with the administration's foreign policy, Kontorovich said.
The view from a new home overlooking the divided Palestinian West Bank territory and Israeli settlements on November 4, 2023, from Al-Ram, West Bank. (Getty Images)
If the Biden administration is permitted to enforce such sanctions, Kontorovich also said it could lead to retaliatory behavior from a different administration down the line.
"The Executive Order, if you read it carefully, says people who ‘destabilize’ the West Bank, and they're basically saying that the viewpoints that they have are bad for the West Bank... through vague and tenuous connections," Kontorovich said to Fox News Digital.
"They happen to have the power now, but obviously, if this is allowed, then it can be used both ways and that's why it's important to uphold constitutional rights in a neutral and fair way," he said.
In addition, the EO also stipulates anyone who engages in "violence" or "threat of violence" in the West Bank can be sanctioned, but Kontorovich argues that "violence" is defined by anti-Israel groups and can be applied to Jews who defend themselves in the face of a violent Palestinian attacker in an "arbitrary" way.
The U.S. government has relied upon data from the website of the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), categorizing acts of self-defense by Jews and anti-terror operations by the Israel Defense Forces as settler violence, according to the lawsuit.
"At the same time, there is no evidence of any independent fact-finding or analysis by the USSC [United States Security Coordinator] or any other U.S. actor or independent investigator; instead, the USSC claims appear to echo statements and figures from highly politicized and biased organizations such as OCHA, discussed previously, and the far-left Israeli NGO B’Tselem," the lawsuit states.
"An examination of OCHA’s and B’Tselem’s reports reveals that there was not a consistent fact-finding methodology behind the data presented. Moreover, it shows several deceptive methods for inflating the data," the lawsuit adds. "These reports are tendentious, inaccurate, and inflammatory and should not form the basis of United States policy."
For example, after a Palestinian was shot dead after breaking on to a Jewish farm in the northern West Bank armed with a knife and explosives, the UN labeled him a victim of "settler violence."
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Kontorovich said the EO focuses on talking points about the oft-repeated idea of the "epidemic of settler violence" in the West Bank, using "neutral" words indicating it targets anybody in the West Bank, not just Jews. He said this is misleading because "it has only been applied against Jewish individuals in a way that's clearly discriminatory." Notably, penalties have not been imposed on non-Jewish U.S. citizens in the West Bank who act in self-defense, the lawsuit states.
Kontorovich said to Fox News Digital that the sanctions have even targeted individuals outside the West Bank. Tzav 9, for example, is a group that protests in Israel against aid to Hamas in Gaza, which Kontorovich said demonstrates that the connection to the West Bank and Gaza does not have to be direct. The Biden administration froze the bank accounts of Reut Ben Haim, a mother of eight who lives in Israel, under the EO simply because she is an organizer of the 15,000-person grassroots movement.
Reut and Yosef Ben Chaim at the Egypt-Israel border.
Tzav 9’s members include hostage families and the bereaved families of soldiers, who have categorically denounced violence, but the group has been categorized as a "violent extremist Israeli group," by the State Department, which announced sanctions against the group on June 14. Notably, on June 10, U.S.-based human rights group, Democracy for the Arab World Now (DAWN), called on the State Department to sanction Tzav 9.
Shortly after being sanctioned, Reut’s bank account, including her small business account in Israel, was frozen. The administration's sanctions have also had a significant and detrimental effect on Reut's husband, Yosef Ben Chaim, who is a dual U.S.–Israeli citizen, according to the lawsuit. Since his wife's sanctioning, he has been unable to finance basic, day-to-day essentials, including food, education, medicine, hygiene products, mortgage payments and other daily expenses.
"He is an American citizen, so this is a violation of their First Amendment rights, violation of their due process rights and it's a violation of the equal protection, because this is really being done in a way that clearly targets Jews," Kontorovich said to Fox News Digital.
A picture taken in the village of Turmus Ayya near Ramallah city shows the nearby Israeli Shilo settlement in the background, in the occupied West Bank on February 18, 2024. (Getty Images)
The Biden administration appears to be doubling down on its approach. The Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced a new round of sanctions on Monday. Additionally, last week, 88 congressional Democrats wrote a letter demanding that the Biden administration sanction Israeli government members and an Israeli NGO that reports on illegal Palestinian activities' destruction.
"The sanctions announced this week abandon even the pretext of requiring acts of violence - this created a clear chill on pro-Israel activism in the U.S., because one cannot know what partners in Israel will be sanctioned next," Kontorovich said.
He said the sanctions regime, which has been sparsely covered by the media, is an indication that the press is uninterested in stories critical of the administration.
"This is going to be a case which is going to proceed in the federal courts, and we hope that they will say the administration cannot use foreign sanctions in a way that essentially makes dissent on foreign policy impermissible," Kontorovich said.
Fox News Digital reached out to the White House for comment.
Kendall Tietz is a writer with Fox News Digital.
