The US visa waiver deal turns a blind eye towards Israel’s history of bad behaviour

The US flag flies near the Augusta Victoria Hospital in the Israeli-annexed East Jerusalem last July. AFP

The US government’s decision to sign a memorandum of understanding with Israel to advance the latter’s entry into the US Visa Waiver Programme shouldn’t have caught the Arab-American community by surprise. But it did. For months, they had been assured by various Biden administration officials that Israel could not meet the requirements of the programme. Concerns focused specifically on its statutory requirement that participant governments must guarantee full reciprocity to US citizens seeking entry – without regard to race, religion, or national origin.

This MOU effectively ignores Israel’s decades-long discriminatory treatment of Arab Americans, especially Palestinian Americans, attempting to enter or exit Israel or the Palestinian territories.

As has been well documented, Israel routinely disregards American passports, ignoring the rights of Arab Americans and Americans practising First Amendment expression for Palestinian rights (which guarantees freedoms concerning religion). These US citizens have reported being harassed, detained and outright denied entry by Israeli officials. During these incidents, Arab Americans have been strip-searched, questioned for hours about family and property histories, and even forced to give access to their social media accounts.

For months, Biden administration officials held that, like all other 40 countries in the programme, Israel must meet the statutory requirements including reciprocity before being admitted. Yet the US has signed this MOU when there has been no demonstrable change in Israeli behaviour since the latest push to admit it into the programme began two years ago. In fact, since then, Israel has issued even more onerous restrictions on visiting Palestinian Americans as part of its “Co-ordination of Government Activities in the Territories” rules – or Cogat.

In the draft of the MOU circulated, Israel’s restrictive Cogat procedures are left intact for a subset of US citizens for at least a year. These procedures create an additional restrictive, short-term visa process for Americans entering the West Bank. While the MOU’s terms state that Cogat is superseded by the MOU, the next section clarifies that Cogat still applies to US citizens who are West Bank residents until May 2024 – at which point the visa waiver programme will “be made available to them”.

At no point does the MOU state that the programme’s entry procedures will become the default for US residents of the West Bank even after full adoption of its procedures. Further, travel to the Palestinian territories is governed by the Cogat rules, but what if a Jewish American goes to an Israeli settlement in the West Bank?

Throughout the MOU, the US allows Israel the leeway to deny visitors entry for undefined security concerns – a rubric which Israeli has too often abused in the past.

One month ago, US authorities stated that there would be a 30-day test to see if Israel would apply non-discriminatory policies to visitors. Arab-American activists scoffed at this plan, noting that after having endured five decades of abusive behaviour at the hands of Israeli border officials, they demanded more, concrete evidence of change.

The hope they had that the US government was paying attention to Arab-American concerns was bolstered by recent evidence of the Biden administration’s frustration with the policies of Prime Minister Benjamin Netanyahu. The US has asked the Israelis to not build settlements – but they announced 5,000 more units. The US pushed them to control settler violence and stop home demolitions – but it continues. The US pressed them to stop provocative raids – yet last year, Israeli forces were responsible for American citizen Shireen Abu Akleh’s death during a raid.

So, when President Joe Biden called Mr Netanyahu’s government “one of the most extremist” in Israel’s history and continued to delay inviting the prime minister to meet in the US, the assumption was that his administration wanted to send a message to the Israeli leader and his coalition. Yet earlier this month, his administration announced both a meeting with Mr Netanyahu and the decision to sign the MOU.

It is this US practice of continually rewarding Israel’s bad behaviour that has created their sense of impunity and fuelled the very extremism about which Americans claim to be concerned.

Reading through the circulating MOU is deeply troubling.

First, the official MOU hasn’t been made available yet but rather versions of it shared by news outlets and various sources. Why has the Biden administration not released the MOU yet? And of the existing 40 countries in the programme, how many have had to have a “reciprocity outline” as the Israeli statement identified it?

On initial review, while other countries have signed MOUs about enhanced security around the programme, there has been no other MOU for a visa waiver country that redefined reciprocity to allow for disparate treatment of American citizens based on their ethnicity or national origin. Reciprocity is required in the statute. If Israel met the requirements of the law – and therefore the visa waiver programme – redefining reciprocity in an MOU would not be required.

Additionally, on the first page of Annex A in the MOU, the following has been written: “Israel’s regulations state that discrimination – the unfavourable treatment of a person, or group of persons, based on several factors which can include their national origin, religion, or ethnicity – is unacceptable.” While allowing for declarative statements that defy fact and claiming to be a roadmap to “clarify” reciprocity, what the MOU does is allow Israel to redefine reciprocity to serve its purposes.

With this MOU, the administration will choose to abandon the rights of Arab-American citizens to give Israel a political perk. This decision is a breach of responsibility owed by the US government to its citizens.