We Say:First, Israel needs to worry about the Palestinians. Top Israeli security officials are on the record stating that Israel’s greatest threat today does not come from Iran or any outside source, but rather from the continued occupation of the West Bank and Gaza. Resolving this threat requires Israel to once and for all get serious and negotiate a two-state agreement with the Palestinians that ends the occupation.

Certainly, Israel and Sunni states have shared concerns about Iran and other threats in the region. And it is generally accepted that Israel and many of these states have engaged in longstanding, quiet security coordination that reflects these shared threats and concerns. While such coordination may, indeed, continue and expand in the face of Iran’s new regional profile, the fact remains that until Israel is prepared to be serious about ending the occupation and achieving a two-state agreement with the Palestinians, relations between Israel and Arab countries will remain, at best, limited to relations that exist below the radar.

We Say: Israel’s decision to initially ignore and subsequently reject the API was a mistake. By reacting to the API in this manner, Israel wasted a strategic opportunity to show the region and the world that it truly wants peace. More importantly, Israel squandered a promising chance to make progress both toward peace with the Palestinians and normalization with other Arab states. Whether such peace and normalization could have, ultimately, come out of the API is not known; what is known is that Israel chose not to even explore the option.

This does not mean that Israel was required to accept every word of the API without reservation. It does mean Israel could have reacted positively and constructively to the initiative – seeking actively to engage Arab backers of the API and to promote Israeli-Palestinian negotiations directly linked to the implementation of the API. Doing so could have built Israeli popular support for peace by offering much bigger dividends for Israel, most notably by opening the door to resolving the Arab-Israeli conflict and to normalization of Israel’s relations in the region. It could also have given Palestinian leaders desperately needed regional cover in negotiating difficult compromises over core issues like the future of Jerusalem and refugees.

Today, the API remains on the table, even if Arab support for it is far less certain. If Israel is serious about peace, its leaders can still shift gears and sincerely consider the API. However, the notion that Israel can cherry-pick the API – that it can “pocket” normalization, which the Arab League clearly offered as a fruit of peace with the Palestinians, without first making peace with the Palestinians – is a delusion. Until such time as Israel is prepared to be serious about ending the occupation and achieving a two-state agreement with the Palestinians, relations between Israel and Arab countries will remain, at best, abnormal and below the radar.

We Say: When Israeli-Palestinian efforts are at an impasse and immediate-term hopes for progress toward any agreement are fading, the appeal of new ideas becomes understandable. No doubt this is why, at such times, discussion of Israeli unilateral options comes up—generally in terms of unilateral “withdrawals” from the West Bank. However, it is essential to distinguish between ideas that are genuinely consistent with peace and the two-state solution, and ideas that simply perpetuate the avoidance and denial that have been the hallmark of successive Israeli governments’ policies vis-à-vis the occupation.

For example, unilateral “withdrawals” that leave Israeli settlers and soldiers behind, while marketed as a step toward peace, practically speaking are no different than continued occupation. Unilateral “withdrawals” that are cover for settlement expansion in the areas of the West Bank from which Israel decides not to “withdraw” (e.g. the area west of Israel’s separation barrier, plus or minus a little, amounting to at least 10% of the West Bank), are not simply continued occupation, but are potentially lethal to the two-state solution. Such settlement expansion, under the cover of “withdrawals,” would take any mutually acceptable land swap option off the table, rendering a future agreement on borders and territory impossible (Israeli land reserves are sufficient for a swap equivalent to at most 2-3% of the West Bank, along the lines laid out in the Geneva Accord). Moreover, this brand of unilateralism would prevent the establishment of a viable Palestinian capital in East Jerusalem or any contiguity between East Jerusalem and the West Bank—and no legitimate Palestinian leadership will ever sign an agreement that doesn’t include both.

Similarly, plans to unilaterally divide Jerusalem – to rid the city of unwanted Palestinian residents ostensibly to make the city more Jewish and more secure – will have the opposite of the intended effect. As Jerusalem expert Danny Seidemann writes:

These proposals make a bad security situation worse. Security in Jerusalem is a function not of the number of Israeli security forces on the city’s streets and borders or the number of its Palestinian residents per se. Insecurity in Jerusalem today stems from Palestinian rage, fueled by despair, deriving from permanent occupation, sharpened by fears that Israel seeks to change the status quo on the Temple Mount/Haram al Sharif. Israeli statements, policies, and actions—like proposing cutting 200,000 Palestinians off from their own city—only intensify and lend credence to those fears.

As for “saving” Jewish Jerusalem, Israeli governments and settlers have been working for years to establish—through housing, parks, archeological sites, and tourist facilities—a Jewish pseudo-Biblical domain in the most volatile areas of East Jerusalem (and, indeed, of the planet), that is, the Old City and its visual basin, including the Temple Mount/Haram al Sharif, all at the expense of equities that Muslims and Christians hold in the city. Suggestions to further cut off Palestinians from these areas only exacerbate this dangerous trend, which is transforming the Israeli-Palestinian political conflict, resolvable by the two-state solution, into a zero-sum religious battle.

In short, while many unilateral plans are marketed as steps toward peace, the devil is in the details – and in the details, a common characteristic of unilateral plans is that, if implemented, they risk depriving Israel of any possibility of a two-state solution, taking the country further down a suicidal path which ends with Israel ceasing to be a democracy and a Jewish state.

We Say:Israeli annexation of Area C – 60% of the West Bank – would be a death blow to the two-state solution. Certainly, in negotiations Israel has sought and will seek to retain some of this area – i.e., the parts where there are the most settlers. However, the key word here is: “negotiations.”

To be clear: the Oslo Agreement did not grant Israel permanent control over Area C. The designation of this area as coming under full Israeli control was intended to be temporary, pending a permanent status agreement. The fact that such an agreement has not been reached – and the fact that Israel has abused its power and control over the area in the intervening years to massively increase settlements – does not give Israel any legal claim to permanent control over this area.

Moreover, legal status aside, negotiations up to this point have established clearly that Israel’s ability to retain control over any settlements under a future peace agreement will come only via mutually agreed-on land swaps, involving land of equal size and quality. There is no possibility of land swaps that could compensate for all of Area C; nor is there any possibility that Palestinians would ever agree to such a massive annexation of land – an annexation that would render a future Palestinian state politically and economically non-contiguous and non-viable.

In short, annexing Area C would, in effect, be a move by Israel to rip up the Oslo Agreement and to state that it prefers permanent conflict and occupation to negotiations and a future two-state agreement. In doing so, Israel would be openly prioritizing settlements over security and Greater Israel over Israel’s standing in the international community. It would also be a definitive step down the road toward condemning Israel to a future as a pariah state.

We Say:  Legislation (seen thus far) seeking to shame, punish and bar BDS through various avenues runs afoul of constitutionally-protected rights and constitutional doctrine and practice in one or more of the following ways:

• Free Speech: The U.S. Constitution (Amendment I and Amendment XIV) bars Congress or any state from “abridging the freedom of speech.” The Supreme Court (most notably in NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982) ruled clearly that economic boycott is protected free speech.

• Unconstitutional-conditions: According to the unconstitutional-conditions doctrine, as articulated clearly by the Supreme Court (in Perry v. Sindermann 408 U.S. 593 (1972):

 “For at least a quarter-century, this Court has made clear that, even though a person has no ‘right’ to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Such interference with constitutional rights is impermissible.” [emphasis added]

• Vagueness: The “void for vagueness” or “overbroad” doctrine holds that a law is unenforceable if its terms are so vague or overbroad that the average citizen could not be certain what conduct is or is not permitted. The EO clearly falls into this category, with language that is prima facie vague and overbroad (e.g., “any activity,” “promote others,” “coercing political action,” “affected state entities”).

• Chilling Effect: Chilling effect is defined as follows: “In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.” As articulated by Justice Brennan in his dissent on Walker v. City of Birmingham 388 U.S. 307 (1967):

“We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the ‘chilling effect’ upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”

We Say:The Jewish attachment and claim to the Temple Mount goes to the core of Jewish history, identity, and religious belief. The fact that at present Jews are not permitted to pray at the site is a source of pain to some and bafflement to others. However, the fact of the matter is that successive Israeli governments since 1967 have decided that, for the sake of Israel’s own vital national security, Israel must maintain the status quo at the site, according to which the Temple Mount (which Muslims call the Noble Sanctuary – Haram al Sharif) remains a site of worship for Muslims alone, and a site that non-Muslims may visit. This position has long been supported by most mainstream Orthodox Jewish authorities, who for more than 1000 years have held, based on ancient Jewish law, that Jews may not ascend the Temple Mount. It has also long enjoyed the support of the political, security, and religious mainstreams of Israel, who recognize that tinkering with the status quo would have grave security repercussions for Israel.This view is bolstered by decades of experience wherein Israeli actions in and around the Temple Mount have led to bloodshed.

Those who today are agitating for a change in the Temple Mount status quo disregard both the religious and national security arguments against such a change. Some may do so out of devout religious motivations. However, others do so – openly and proudly – for the sake of clear political agenda of challenging Muslim claims to the site, replacing Muslim control (gradually or immediately) with Jewish hegemony, and undermining any two-state peace agreement. In fact, some of them openly seek and welcome the possibility of a zero-sum religious war over the site.

In the future, in the context of an Israeli-Palestinian peace agreement and the normalization of Israel’s relations with the Muslim world, it is possible that there may be an opportunity to adopt a new, mutually agreed-on status quo that could include Jewish prayer at the site. Until then, efforts to unilaterally impose a new status quo are dangerous – fueling Muslim fears about Israeli intentions at the site. Such fears are fueled by public statements by Israeli Temple Mount activists, including Members of the Knesset and government officials, who regularly proclaim their desire (and plans) to replace the al Aqsa Mosque and the Dome of the Rock with a newly-built Third Temple.

We Say:First, there is the issue of property transactions in East Jerusalem. Palestinians in East Jerusalem face obstacles and dangers if they want to buy or sell property to each other, especially in settler-targeted areas. Palestinians have learned over the years that merely seeking to register property transactions can bring on scrutiny by Israel’s Interior Ministry, toward the goal of taking away property or residency rights.

Selling to Israelis/Jews, on the other hand, is both easy and facilitated by the Israeli government. This facilitation includes not just the transaction itself but cooperation by the government agencies and officials who often work hand-in-hand with settlers to help them find and target "vulnerable" properties – e.g., properties where owners can be threatened with the choice of either selling to settlers or having the property taken or demolished on various grounds (absentee, illegal construction, etc). This cooperation extends further to providing forces to secure settlers taking over and moving into properties, providing compensatory arrangements to sweeten the deal for Palestinians who sell (such as permits to building elsewhere or travel permits), and paying for permanent security to enable settlers to live safely within these areas.

In addition, the deliberate failure of Israeli authorities over the past 49 years to grant building permits to Palestinians, and more broadly the Israeli government’s unwillingness to provide proper planning and development opportunities within the Palestinian sector, distorts the real estate "market" in East Jerusalem in a manner geared to incentivize the transfer of property from Palestinians to Israelis/Jews. The value of property is linked to the ability of the owner or purchaser to develop and use it. But Palestinians in East Jerusalem can rarely get permits from Israeli authorities to build – especially in areas targeted by settlers. This includes withholding of permits needed for renovations, expansion of existing properties, and construction of new homes, not to mention new residential projects. As a result, the value of property on the (virtually non-existent) Palestinian market is artificially capped, even assuming a transaction between Palestinians was possible. And when Palestinians build (or expand, or do maintenance) without permits, they face a very real threat of fines and demolitions, particularly if they do so in areas coveted by the settlers.

On the other hand, once a property is in the hands of the settlers, the Jerusalem Municipality and state agencies provide active support in that property’s development, treating the settlers as partners in a government-endorsed project of establishing and expanding the Jewish presence in the targeted area. Settlers generally have no issues getting permits to renovate, expand, develop (as seen in the various settler developments in these areas, including Shepherds Hotel, Nof Tzion, Ras al Amud, etc). And when settlers build without permits, Israeli authorities find excuses to avoid taking action against them. The most glaring example of this phenomenon is “Beit Yonatan”– a seven-story settler structure built illegally in Silwan in 2002, against which Israeli authorities have failed to take meaningful action for more than a decade, despite the Supreme Court having ruled that the settlers must vacate and that Israeli authorities must seal the illegal building. Jerusalem Mayor Nir Barkat has refused to honor that verdict, flouting binding instructions from Israel's Attorney General and going so far as to fire a Municipal Legal Adviser who insisted he respect the rule of law.