New York bill on boycotts may have criminal implications for human rights activists [Corrected]

Since activists, who advocate for or are engaged in the boycott of certain nations, would naturally have an economic impact on the nations, state efforts to identify such activists would invariably help Federal law enforcement authorities to potentially initiate criminal investigations of such activists. 

By LOUIS FLORES

The New York State Senate passed a controversial bill on January 18 that would ban New York State from contracting business with any individual, corporation, or group that advocates for or is engaged in the boycott of certain nation-allies of the United States. 

The State Senate bill proposes to empower RoAnn Destito, commissioner of the New York State Office of General Services, to create a list of individuals, corporations, or groups engaged in boycotts of signatory nations to the North Atlantic Treat Organisation, or NATO ; the Southeast Asia Treaty Organisation, or SEATO ; and the Rio Treaty of 1947, except Venezuela.*  Separately included nations are Ireland, Israel, Japan, and South Korea. 

The bill would also forbid State Comptroller Thomas DiNapoli to invest in a financial institution that boycotts any of the identified nations and would compel the state comptroller to divest from any investment that violates the investment restrictions.

The State Senate bill, sponsored by State Senator Jack Martins (R-Port Washington) and co-sponsored by State Senators Simcha Felder (D-Brooklyn), Hugh Farley (R-Johnstown), Thomas Croci (R-Sayville), Martin Golden (R-Bay Ridge), and Terrence Murphy (R-Peekskill), passed by a super-majority vote of 55-6-1. 

The only State Senators to vote against the State Senate bill were State Senators James Sanders (D-Jamaica), Gustavo Rivera (D-Kingsbridge), Bill Perkins (D-Washington Heights), Jose Peralta (D-Jackson Heights), Velmanette Montgomery (D-Boerum Hill), and Ruth-Hassell Thompson (D-Co-op City).  State Senator Joseph Robach (R-Rochester) was excused from voting.

A similar bill is presently pending before the State Assembly, which is sponsored by Assemblymember Helene Weinstein (D-Flatlands) and co-sponsored by Assemblymembers Charles Lavine (D-Glen Cove, Long Island) and Michael Simonowitz (D-Flushing).

Progress Queens attempted to contact each of the sponsors in the State Senate and the State Assembly, but no legislator provided responses for this article. 

The proposed New York law is seen as a reaction to the BDS movement

Amongst the treaties, NATO is the better known, due to its role in maintaining a European check on the former U.S.S.R.  SEATO is an inactive U.S. cöalition assembled under the Truman Doctrine of containment of communist nations by solidifying treaty relationships with allies.  The Rio Treaty was also entered into by the U.S. under the Truman Doctrine, and it covered almost all of the nations in the Western Hemisphere.  Venezuela withdrew from the Rio Treaty in 2012, but state legislators still felt compelled to expressly exclude Venezuela despite their abandonment of the treaty.  That New York State legislators chose to include nations to inert Asian and Western Hemisphere treaties pointed to the red herring nature of the names of nations included in the state bills.  That Venezuela, a county known for its human rights abuses, would be deliberately excluded served as indicia that state legislators considered it acceptable for activists to boycott that nation over its human rights violations, but not Israel.

Although many nations were included in the State Senate and State Assembly bills, political response focused on Israel.

In recent years, there has been a growing international movement calling for a boycott of, sanctions against, and divestment from Israel, a movement referred to as BDS, and the BDS movement has been snowballing, particularly after a finding by the United Nations that the State of Israel had violated the Fourth Geneva Convention, a treaty which bars a nation from transferring its own population from within its own borders into occupied territories.  The violations stem from settlements in the West Bank.

The BDS movement has been modeled on the successful movement to end apartheid in South Africa, and the BDS movement has been making strides in pressuring Israel to confront its record of human rights violations.  Some BDS activists see the state legislative bills as retaliation against a BDS movement gaining steam

Reaction to the Senate bill was mixed.

In statements and interviews provided for a report in The Brooklyn Eagle, some state legislators compared activists from the BDS movement with anti-Semites, an unfair tactic not based on truth, but that, nonetheless, is commonly used against anti-Israeli apartheid activists.

“Those who advocate and engage in boycotts against Israel, and who promote anti-Semitic ideology, have no place as a state contractor,” wrote State Senator Felder, in part, in a statement.

In the 1940's and 1950's, the government retaliated against activists.  Those efforts were visibly led by Sen. Joseph McCarthy (R-Wisconsin).  Photo Illustration :  Based on Wikipedia/Library of Congress/Public Domain

In the 1940's and 1950's, the government retaliated against activists.  Those efforts were visibly led by Sen. Joseph McCarthy (R-Wisconsin).  Photo Illustration :  Based on Wikipedia/Library of Congress/Public Domain

“Today we say New York is closed for business for those contractors who participate in subversive activity or try to disrupt Israel’s economy,” said State Senator Golden, echoing the anti-subversive messaging once used by U.S. Senator Joseph McCarthy (R-Wisconsin) in Red-baiting campaigns of the 1940’s and 1950’s. 

The use of loaded wording, particularly the term “subversion,” appear to be an escalation of the reaction by defenders of Israeli apartheid against activists pressuring Israel to end its human rights abuses of Palestinians.  

In the Jewish press, Menachem Rephun filed a report for JPUpdates portraying the State Senate bill as protecting Israel from “harm” from “boycotts and economic discrimination.” 

The New York County Republican Committee expressed support for the legislation on social media, describing it as a “pro-Israel/anti-BDS bill.”  In messaging seen as worrisome, the New York County Republican Committee’s social media post including a ruse to bait and identify critics, “Now let's see who is against it.”

Amongst activists in the anti-Israeli apartheid movement, reaction to passage of the State Senate bill was one of immense criticism.

Pauline Park, a member of the group NYC Queers Against Israeli Apartheid, noted that the extraneous nations included in the state legislation acted to confuse the fact that the focus of the bill was essentially to help Israel avoid accountability for violating international human rights laws, adding that just because the legislation was not just nominally about Israel, that did not absolve the state legislature from considering Israel’s violations of international law. 

Speaking of the State Senators, who co-sponsored the legislation, Ms. Park said, “They are trying to silence critics of the illegal Israeli occupation.”

The co-sponsoring of the State Senate bill by State Senator Felder was clear indication that the bill was basically centered on the nation of Israel.

“He’s one of the biggest Zionists in the state legislature,” said Ms. Park, the activist.

The journalist Michael Gormley filed a report for Newsday indicating that there is “strong support” in the State Assembly for passage of the bill.  If passed by the State Assembly, the bill would go to Gov. Andrew Cuomo (D-New York), for his consideration.  A request for comment made by Progress Queens to Gov. Cuomo’s press office was not answered. 

It is not known if Gov. Cuomo is committed to the First Amendment rights of BDS activists as former Mayor Michael Bloomberg (R-New York City), who used his political influence to rein in a prior attempt by elected officials to retaliate against BDS activists.  In 2013, some New York City Councilmembers threatened to defund Brooklyn College over an event featuring BDS activists.  That 2013 effort backfired when then Mayor Bloomberg defended the BDS event, despite his personal objections.

Activism in the area of international human rights can trigger a federal investigation of activists

Regarding the actual carrying-out of the proposed legislation, there is no information about how OGS Commissioner RoAnn Destito would go about compiling information about individuals, corporations, or groups in order to assemble the list of those disqualified from contracting with New York State, or about how Comptroller DiNapoli would identify which banks or investments would violate the proposed investment restrictions.

According information obtained by Progress Queens from a state legislative source, the intent of the bill was to allow the state to refuse to contract with activists boycotting the named nations, that the list being created would not lead to the arrest of activists (as has happened in the past, with McCarthy-era “Red scare” laws), and that the protection of the proposed New York State law would apply to some of America’s important trading partners.

Under the proposed New York State law, the worst that the source said that activists would face would be to be banned from contracting with New York State, the legislative source said. 

But that is not true.  

That the proposed list would identify international human rights activists advocating for boycotts promised to potentially extend existing Federal law enforcement authority in the area of protecting the property of foreign governments, with the potentiality of triggering criminal investigations of activists, a review by Progress Queens of Federal law enforcement guidelines obtained from the U.S. Department of Justice has shown.  Existing Federal law gives Federal law enforcement officials the discretion to commence investigations of activists when their activism, even when peaceful, may have a detrimental impact on the property of foreign governments.  The guidelines for such Federal discretion are outlined in Sections 9-65.880-82 of the United States Attorneys’ Manual and were provided to Progress Queens during court proceedings related to a Freedom of Information Act request filed by the publisher of Progress Queens with the U.S. Department of Justice. 

Since activists, who advocate for or are engaged in the boycott of certain nations, would naturally have an economic impact on the nations, state efforts to identify such activists would invariably help Federal law enforcement authorities to initiate investigations of such activists.

A request made by Progress Queens to the U.S. Attorney’s Office for New York’s southern district to comment about the possibility that the proposed state law could trigger a criminal investigation of activists under Federal prosecutorial guidelines was not answered.

Not only could the proposed state list potentially trigger a Federal criminal investigation of human rights activists advocating boycotts, but there is a lack of protections for activists.  For example, when Federal law enforcement officials conduct criminal investigations of activists that overlap with Constitutionally-protected political activities, there are sections in certain investigatory guidelines and manuals that investigators must consider in respect of the First Amendment and privacy rights of activists.  Whereas the proposed New York State law instructs the OGS Commissioner to notify the activists that the activists have been identified and placed on the purchase restrictions list to give the activists an opportunity to respond to the information, there are no express First Amendment or privacy considerations of activists in the state bills.

*  Correction :  Due to an editing error, Venezuela was incorrectly reported to be a nation included in the Senate bill.