2D
territories. Even so, the PA remained highly dependent on U.S. aid, receiving more than $400 million per year from Washington, and it was unclear whether the PA and its president, Fatah leader Mahmoud Abbas, could survive without it.
As a result, the U.S. Congress responded to Hamas’ 2006 electoral victory by passing the Palestinian Anti-Terrorism Act (PATA), which conditioned assistance to the PA on a presidential certification that Hamas did not effectively control any “ministry, agency, or instrumentality” of the PA and made “demonstrable progress” toward five benchmarks related to transparency, democratization, and antiterrorism. PATA provided a national security waiver that allowed the White House to continue funding various entities in the PA presidential office and judiciary branch, so long as Hamas did not control the recipient. It also permitted funding to nongovernmental organizations that provide aid to the West Bank and Gaza relating to humanitarian needs and democracy promotion.
Ultimately, the dilemma over funding the PA resolved itself in 2007, when Hamas broke with Fatah and the PA and took control of Gaza. This separation freed OFAC to allow all transactions with the Fatah- controlled PA in the West Bank. But should Hamas rejoin the PA as a result of the recent unity arrangement, there may be pressure on OFAC to take a tougher stance. Indeed, in recent appropriations bills, Congress has made assistance to a “power-sharing government” in Palestine contingent on compliance with PATA.
Congressional authorization to fund a Hamas-affiliated PA would likely overcome existing legal prohibitions. In the face of PATA, however, there is a substantial risk that providing aid without specific congressional authority would violate U.S. criminal laws. Although there are several arguments for exempting the PA from the U.S. laws against dealing with FTOs, none is particularly convincing. To begin with, it could be argued that although U.S. law prohibits individuals
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