On the Legal Front Lines
Implementing the US Neutrality Act to Prevent Support for Hamas
Leonard Hammer, PhD
Shurat HaDin - Israel Law Center
10 Hata'as St. Ramat Gan, 52512 Israel
Phone: 972-3-7514175 | Fax: 972-3-7514174 info@israellawcenter.org
http://www.israellawcenter.org
http://israellawcenter.org/uploadimages/image/February%202011.pdf

Some organizations, such as the US based Free Gaza Movement, are actively
working to generate support for additional flotillas to Gaza. Several new
ones are being planned for this Spring. Non Governmental Organizations in
the US for example are engaged in gathering people to take part in breaching
the Israeli blockade of Gaza, sometimes even in a violent manner, and
soliciting funding for these ventures from financial backers. The stated
goal of the Free Gaza Movement, even goes so far as to call for hostile
action against Israel as a means of breaching the blockade (stating for
example that the Israeli authorities around Gaza be completely ignored).

It is worth considering whether such organizations are engaging in
potentially illegal activity when leading the charge to create new
flotillas. In particular, these organizations can be found to violate the US
Neutrality Act.1 The Neutrality Act provides that:

Whoever, within the United States, knowingly begins or sets on foot or
provides or prepares a means for or furnishes the money for, or takes part
in, any military or naval expedition or enterprise to be carried on from
thence against the territory or dominion of any foreign prince or state, or
of any colony, district, or people with whom the United States is at peace,
shall be fined under this title or imprisoned not more than three years, or
both.

Thus, no “military expedition” to engage another state with which the US is
at peace is allowed. The disallowed activity broadly includes as well
financial backers supporting violent engagement or raising funds to support
an expedition. In fact, the Neutrality Act maintains a universal
jurisdiction clause, as it applies to all persons, regardless of their
nationality, assuming the US has jurisdiction over the individual or group.

The Neutrality Act is one of the oldest US laws (as described by then
Attorney General Robert Kennedy in 1961 when discussing the potential for US
individuals to engage Cuba, a precursor to the ensuing Bay of Pigs disaster)
having been passed by Congress in 1793 (at the behest of then President
George Washington). The underlying reason for the law was to prevent
individual actions against foreign states at peace with the United States,
thus removing individual interference of US relations with foreign countries
and potential disruption of US foreign policy.

Through the years, courts have adopted a rather vigilant enforcement of the
law.2 The policy for this approach is linked to the desire to ensure the
constitutional mandate that Congress control declarations of war against
another state and also to uphold the US’ responsibility as a state in the
international framework, especially to engage in peaceful relations with
other states. Such policy reasons regarding the importance of protecting US
interests and its foreign policy have served to negate challenges against
the claim that the law is subject to discriminate or selective enforcement.3

In the context of the Gaza blockade, it is important not to forget why
Israel initiated the blockade to begin with. Hamas was (and still is)
involved in military activities against Israel. They are a terrorist
organization, as deemed by the US, engaged in direct military action against
not only a state (Israel) that is at peace with the US, but a long-term US
ally who clearly serves the foreign policy purposes of the US in the region.
Thus, non-governmental organizations calling on people to support a physical
breach of the Gaza blockade and raising funds to that effect are quite close
to violating the US Neutrality Act.4

Note as well that under the Oslo Accords signed by both Israel and the PLO,
the Gaza coastline is under strict control of Israel until a Palestinian
state is created. Israel acted to protect its security against an entity
bent on engaging in military conflict with Israel. The 1995
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip
states in Article XIV that Israel has "the responsibility for defense
against external threats, including for defense against external threats
from the sea and from the air." Moreover, in Article XIV of the Interim
Agreement titled "Security along the Coastline to the Sea of Gaza" Israel
and the Palestinian Authority agreed that foreign vessels would" not
approach closer than 12 nautical miles from the coast" unless specifically
authorized pursuant to jointly agreed regulations, and that in the absence
of such conditions, all foreign vessels would be required to dock at Israeli
approved ports. Finally, in a letter to Prime Minister Sharon on April 14,
2004 shortly before Israel's withdrawal from the Gaza Strip, President Bush
confirmed "[t]he United States understands that after Israel withdraws from
Gaza and/or parts of the West Bank, and pending agreements on other
arrangements, existing arrangements regarding control of airspace,
territorial waters, and land passages of the West Bank and Gaza will
continue."

A blockade is certainly allowed under international law, especially when an
enemy is using force against the state. Indeed, the Israeli naval blockade
of Gaza is particularly important in light of previous attempts by the
Iranian government to transfer weapons to Palestinian militants at sea, such
as occurred in January 2002 when the Israeli navy seized the "Karine A" ship
that was loaded with 50 tons of Iranian supplied weaponry.

As a result, current efforts in the US to organize and support a boat
flotilla and to attempt to run the blockade (and smuggle possibly weapons,
and certainly supplies, to the Hamas controlled entity in Gaza) jeopardizes
Israeli security, in direct violation of the U.S. Neutrality Act. It
interferes with US foreign policy and runs counter to the US’ stated desires
to involve the two sides in ongoing negotiations. Engaging the US public to
fund such initiatives should be investigated and prosecuted by US law
enforcement to the full effect of the law.

February, 2011.
=====================
1 18 USC 690
2 Comment, Nonenforcement of the Neutrality Act: International Law and
Foreign Policy Powers Under the Constitution, 95 Harvard Law Review 1955
(1982)
3 See e.g. US v. Khan 461 F3rd 477 (4th Cir. 2006) (Court upheld charges
of conspiracy under the Neutrality Act – among other laws as well - against
defendants who furnished financial support to a group planning and preparing
an expedition to Afghanistan to provide military support to the Taliban
forces)
4 Note that Shurat HaDin initiated this notion of engaging the Neutrality
Act by writing a letter in June, 2010 to both American Attorney General,
Eric Holder, and the Attorney General of California (where the “Free Gaza
Movement” is situated), informing them of the potential violation of the law
and the need for, at the very least, an investigation to determine if there
has been a violation of the Neutrality Act.