26
from assisting Hamas, the president’s constitutional powers to conduct foreign affairs might exempt officials carrying out the government’s international policy from criminal prosecution. The existing laws and regulations, however, make federal officials just as liable for providing aid to FTOs as any private citizen, and any contrary argument would rest, at best, on untested grounds. Additionally, it could be argued that because Hamas does not control the PA outright, aid to the PA is not the same as aid to Hamas. This may seem persuasive in some circumstances; for instance, if Hamas held only a small minority of the PA’s parliamentary seats. But that is hardly the case with regard to the current reconciliation agreement, which places equal power in the hands of Fatah and Hamas to form an interim government and appoint various ministers through consensus. Moreover, according to OFAC’s regulations, Hamas needs only an interest in PA transactions, rather than full control of the PA itself, to trigger sanctions against funding the PA. In fact, following Hamas’ election success in 2006, OFAC determined that Hamas had “a property interest” in PA business; this may have some bearing on funding the new unity government. Much like the OFAC regulations, the U.S. criminal code does not clearly specify when an FTO’s interest in an organization becomes so great that it is unlawful to provide that organization with “material support.” Moreover, the serious penalties associated with violating these criminal laws demand caution when considering whether to aid an organization in which an FTO such as Hamas plays a significant role.
Another possible method for the United States to continue funding the PA is an exception in the criminal code for persons who provide “personnel,” “training,” or “expert advice or assistance” to an FTO with approval of the secretary of state and the attorney general. This exception could allow the United States to advise PA security and police forces, but it would not permit direct financial aid. Similarly,
HOUSE_OVERSIGHT_030181