Could U.S. still fund PA that includes Hamas?

The Hamas-Fatah reconciliation may portend yet another Congress vs. White House showdown in the battle in Washington over Middle East policy.

The Obama administration has expressed its unhappiness with the compromise reportedly negotiated this week in Cairo, but it is not counting out the prospect of supporting a reconstituted Palestinian Authority in which Hamas plays some role.

Top Congress members from both parties have been more forthright: If Hamas joins the Palestinian government, there will be no more talk of moderates vs. terrorists, they said. If that happens, the Palestinians can kiss goodbye their approximately $500 million in annual U.S. aid.

The Obama administration was first to issue comment in the wake of the April 27 announcement that the sides had come to a power-sharing agreement.

“We have seen the press reports and are seeking more information,” Tommy Vietor, the National Security Council spokesman said that day. “As we have said before, the United States supports Palestinian reconciliation on terms which promote the cause of peace. Hamas, however, is a terrorist organization which targets civilians. To play a constructive role in achieving peace, any Palestinian government must accept the Quartet principles and renounce violence, abide by past agreements and recognize Israel’s right to exist.”

The lack of clarity about the agreement emerging from Cairo, and conflicting statements on the matter from the two Palestinian sides—Fatah officials said the interim government would be calibrated to continue peace talks, while Hamas officials said peace talks were not on the horizon—gave the Obama administration some wait-and-see wiggle room.

Still, even in Vietor’s initial statement there was a sign that the Obama administration could countenance a Palestinian Authority that included an unrepentant Hamas. The restrictions applied by the administration were on the Palestinian government, not on the terrorist group itself.

So if, as reports said, the new Palestinian government were comprised of independent “experts,” with neither Hamas nor Fatah holding Cabinet-level positions, the Obama administration would have an opening to maintain U.S. support.

That kind of nuance was not reflected in the either/or statement issued by Prime Minister Benjamin Netanyahu.

“You can’t have peace with both Israel and Hamas,” the Israeli leader said. “Choose peace with Israel.”

Notable by its absence was any comment from the mainstream Jewish groups, which otherwise were vocal over regional developments, including the uprising in Syria and the killing of terrorist leader Osama bin Laden. The only groups to speak up were on the left: J Street said the agreement called for caution and questions for the Palestinians, but not hostility. Americans for Peace Now said the agreement presented an opportunity to talk peace with the entire Palestinian polity.

U.S. lawmakers were not so sanguine.

“The reported agreement between Fatah and Hamas means that a foreign terrorist organization which has called for the destruction of Israel will be part of the Palestinian Authority government,” Rep. Ileana Ros-Lehtinen (R-Fla.), the chairwoman of the House of Representatives Foreign Affairs Committee, said in a statement. “U.S. taxpayer funds should not and must not be used to support those who threaten U.S. security, our interests, and our vital ally, Israel.”

Statements similar to Ros-Lehtinen’s were released by Reps. Nita Lowey (D-N.Y.), the senior Democrat on the foreign operations subcommittee of the House Appropriations Committee; Gary Ackerman (D-N.Y.), the senior Democrat on the House Middle East subcommittee; and Sen. Mark Kirk (R-Ill.), a Senate appropriator.

The same forthrightness emerged in a statement from a bipartisan congressional delegation visiting Israel.

“The United States should not aid an entity whose members seek the destruction of the State of Israel and continue to fire rockets and mortars at innocent Israeli children,” said the statement from Reps. Ted Deutch (D-Fla.), Dennis Cardoza (D-Calif.), Eliot Engel (D-N.Y.), Jack Kingston (R-Ga.), Allyson Schwartz (D-Pa.), John Barrow (D-Ga.), Tim Murphy (R-Pa.), Ben Chandler (D-Ky.) and Larry Kissell (D-N.C.). “If the Palestinian Authority follows through on this decision, American law dictates that U.S. assistance to the Palestinian Authority will end.”

As of April 28, however, a top Obama administration official speaking to a pro-Israel group was still maintaining the subtle emphasis on working only with a PA government that upholds agreements—leaving room for including Hamas as a component.

“Any Palestinian government must renounce violence, it must abide by past agreements and it must recognize Israel’s right to exist,” Bill Daley, the White House chief of staff, told the American Jewish Committee that evening.

A State Department official elucidated to the Washington Post, “If a new Palestinian government is formed, we will assess it based on its policies at that time and will determine the implications for our assistance based on U.S. law.”

Kirk, who with Lowey authored the most recent legal language banning dealings with Hamas, subsequently issued a working paper on how funding any government based on a Hamas-Fatah agreement may violate U.S. law. His paper laid down the toughest restrictions, but also implicitly suggested a path through which the Obama administration legally could support such a government.

U.S. money to a Hamas-controlled ministry: banned. U.S. funding for Palestinian Authority personnel in Gaza, as long as the strip remains Hamas controlled: banned. Moreover, if any arrangement with Hamas is entered into, any “such government, including all of its ministers or such equivalent, [must have] publicly accepted and is complying with agreements with Israel and the renunciation of terrorism.” And in writing.

Those restrictions, however broad, still leave plenty of room for the Palestinian “government of independent experts” to operate, and would leave in the West Bank the $470 billion in U.S. aid that the Palestinian Authority now receives for that territory each year.

That possibility seemed to inform the relatively mute statement from the lawmaker with the most power when it comes to disbursing such funds: Rep. Kay Granger (R-Texas), the chairwoman of the House of Representatives’ foreign operations subcommittee of the Appropriations Committee.

“Recent reports of a reconciliation agreement between Hamas and Fatah demonstrate how quickly events are changing throughout the region and reinforce the need for continuous oversight and evaluation of U.S. investments,” she said. “If a power-sharing agreement with a terrorist organization becomes a reality in the Palestinian territories, the U.S. will be forced to re-examine our aid to the Palestinian Authority.”

“Re-examine” implies tough, contentious oversight and forewarns another series of major legislative-executive branch battles that characterized the delivery of aid by the Clinton and Bush administrations to the Palestinians.

It does not carry the threat of a ban, which suggests that the Obama administration’s challenges should it continue funding the Palestinian Authority would be political—but not legal, according to an analysis by Matt Duss of the Liberal Center for American Progress.

“U.S. law currently allows aid to a Palestinian unity government whose ministers have individually pledged adherence to the Quartet conditions even if Hamas the party has not,” he wrote. “Congress, however, is likely to resist sending any aid to a government that includes Hamas.”