Who Oversees Foreign Aid to the Palestinians?

A reminder:

Alexander Joffe

In Palestinian economics, where all the money goes is unclear -- but where does all the money come from? Which U.S. programs give how much and who has legislative oversight? Now that Palestinian Authority (PA) prime minister Salaam Fayyad has announced a plan for September for unilateral Palestinian statehood, which includes a request for $5 billion over three years -- and presumes that the newly announced Fatah-Hamas rapprochement does not scuttle all American aid -- the problem of oversight is all the more pressing.

The fundamental tension between Congress's power of the purse and the president's obligation to make foreign policy has always been clear. But so too is the extent to which certifications and waivers by the Executive blatantly circumvent the express will of Congress and defy its obligations to advise and obtain consent.

The will of Congress and the empirical reality regarding the difficulties of the Palestinian Authority and Palestinian society count for little when successive U.S. presidents waive requirements and certify compliance regardless of Palestinian performance. And presidential ability to "reprogram" funds removes Congress even farther from the equation.


A recent Congressional Research Service study notes that since 2007 the U.S. has contributed $650 million to the Palestinian Authority for "direct budgetary assistance" and almost $400 million for "security forces and criminal justice systems" in the West Bank. Almost another $1 billion was directed through the U.S. Agency for International Development (USAID) to be "implemented by nongovernmental organizations in humanitarian assistance, economic development, democratic reform, improving water access and other infrastructure, health care, education, and vocational training." Finally, the U.S. is the largest single contributor to UNRWA and having provided over $230 million in 2010.
USAID is an independent agency whose appropriations requests are made by the Department of State and submitted to the House and Senate Appropriations Committees. The Senate Committee on Foreign Relations and House Committee on Foreign Affairs have oversight responsibility. The Senate exercises relevant oversight through two subcommittees called "International Development and Foreign Assistance, Economic Affairs, and International Environmental Protection," and "Near Eastern and South and Central Asian Affairs." The House exercises oversight through the full committee and various subcommittees on "Oversight and Investigations," "Africa, Global Health, and Human Rights," Middle East and South Asia," and "Terrorism, Nonproliferation, and Trade."
Economic Support Funds provided by USAID can not go directly to the Palestinian Authority without a waiver to the Appropriations Committee from the U.S. president saying that it is in the interest of U.S. national security to provide them, and and a certification from the Secretary of State regarding the PA's treasury, payroll and civil service – all according to section 2106 of chapter 2 of title II of Public Law 109-13, a 2005 emergency supplemental defense and relief bill (and Public Law 108-199 of 2004 before it).
Public Law 109-13, for example, requires, among other things, that the President certify that Palestinian security services have purged their ranks of terrorists, that the Palestinian Authority stop incitement against Israel, and that it cooperate with the US. in investigations of Yassir Arafat's finances. These waivers have been provided annually despite the fact that Palestinian incitement continues, Palestinian security forces are still laden with terrorists, and Yassir Arafat's money is still missing.
Another $100 million for Palestinian security aid and institution building is allocated through a program called International Narcotics Control and Law Enforcement. This is a Foreign Military Assistance program but it is also directed by the Department of State under Section 1206(f) of the 2006 National Defense Authorization Act.
Much of the International Narcotics Control and Law Enforcement funding for the Palestinian Authority had been "reprogrammed" by President George W. Bush, using a Presidential Determination under Chapter 8 of Part I (Section 481) of the 1961 Foreign Assistance Act which states "Notwithstanding any other provision of law, the President is authorized to furnish assistance to any country or international organization, on such terms and conditions as he may determine, for the control of narcotic and psychotropic drugs and other controlled substances, or for other anticrime purposes."
Other presidential wavers provided additional money from the Economic Support Fund account to the Palestinian Authority. These were done under the authority of the Foreign Assistance Act which states "None of the funds made available by this Act may be obligated under an appropriation account to which they were not appropriated, except for transfers specifically provided for in this Act, unless the President, prior to the exercise of any authority contained in the Foreign Assistance Act of 1961 to transfer funds, consults with and provides a written policy justification to the Committees on Appropriations of the House of Representatives and the Senate."
In fact, the legislative system of appropriations and oversight matters very little when it comes to U.S. aid to the Palestinians: the system of foreign aid permits the president to independently "certify" or "waive" requirements introduced by Congress. It demonstrates the extent to which U.S. aid to the Palestinians is an instrument of Executive policy rather than an altruistic enterprise authorized by the Legislative branch. Of course, such methods are not unique to the Palestinian case. Congress permits presidential waivers on everything from Azerbaijan's blockage of Nagorno-Karabagh to the use of child soldiers by Chad, Congo, Sudan and Yemen.
But the extent to which foreign aid to the Palestinians is a political tool of the Executive may be in a class by itself: Western and Palestinian supporters of continued aid routinely offer at least two scenarios that would unfold should aid be withdrawn or reduced: "radicalization" and "humanitarian crises." In effect the Executive branch is blackmailed.
Legislation proposed in Congress to limit or condition funds to the Palestinian Authority or UNRWA are largely meaningless in this light. The "UNRWA Humanitarian Accountability Act," for example, offered by Representative Ileana Ros-Lehtinen in 2010, demanded that UNRWA not be used by or support Palestinian terrorists. But like the appropriations bills described above, it offers the Executive branch an out by requiring only "a written determination by the Secretary of State, based on all information available after diligent inquiry, and transmitted to the appropriate congressional committees along with a detailed description of the factual basis therefore." Such a statement is a foregone conclusion. The mechanisms for Congress to review results independently, hearings, reports from Congressional staff, the Congressional Research Service, and the Government Accountability Office, have no weight except in the politics of the next appropriations cycle.
Aid the Palestinians is a microcosm of the larger question of how U.S. foreign aid works. Now that Hamas will evidently join Fatah in a Palestinian Authority poised to declare statehood and request vast additional support, creating genuine Congressional oversight -- with teeth -- should be addressed once again.