As I reported last night, the Obama administration is reluctant to articulate clearly a position that if a Hamas-Fatah unity government emerges as Mahmoud Abbas has been describing, the U.S. will cut off aid. Congress is an entirely different matter. A Republican congressional aide, plainly frustarated with the State Department double-talk on this, told me this morning: “We shouldn’t be getting nuanced answers to questions about whether the United States would fund a government that includes a terrorist group that murdered American citizens. The only acceptable answers for most Americans would be no or hell no.”

Careful not to stray too far beyond the administration’s limited remarks, the new Democratic National Committee chief Debbie Wasserman Schultz has put out a statement that reads:

“I am watching with caution and concern the recent announcement by Fatah and Hamas that they plan to form a Palestinian unity government. The United States would embrace such an arrangement for the purpose of promoting peace, if and only if Hamas renounces its terrorist charter and abides by the Quartet Principles. Hamas is a terror organization, eschewed by the United States government, and this deal puts United States support for the Palestinian Authority at risk unless Hamas renounces violence, abides by past peace agreements, and recognizes Israel’s right to exist. The Palestinian people deserve a unified, peace-seeking government — not one that flies in the face of the necessary and important steps all parties must take toward peace.”

Sen. Mark Kirk (R-Ill.), who was among the first to sound the alarm on the prospect of a Palestinian terror state, is more robust and specific in his denunciation, sending out a detailed memo today which explains the legal ramifications of the purported Hamas-Fatah merger:

Restrictions on U.S. Assistance to a Unity Government

For the situation at hand, the relevant statute remains the Lowey-Kirk language contained in Section 1107 of the Supplemental Appropriations Act, 2009 (Public Law 111-32). That bill was accompanied by committee report language providing further guidance to the executive branch.

Under this provision, no U.S. funds may be provided for:

1) salaries of personnel of the Palestinian Authority located in Gaza;

2) assistance to Hamas or any entity effectively controlled by Hamas; or

3) any power-sharing government of which Hamas is a member, unless the President certifies to Congress that “such government, including all of its ministers or such equivalent, has publicly accepted and is complying with” the core requirements of the Palestinian Anti-Terrorism Act of 2006, which are:

a. publicly acknowledging the Jewish state of Israel’s right to exist; and

b. committing itself/themselves and adhering to all previous agreements and understandings with the United States Government, with the Government of Israel, and with the international community, including agreements and understandings pursuant to the Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict (commonly referred to as the ‘Roadmap’)

The accompanying report language further defined “such equivalent” as “other officials of such equivalent rank and stature” and further defined “publicly accepted” as “in writing by such government and its ministers.”

Section 1107 was carried forward in Section 7040 of the Consolidated Appropriations Act, 2010 (Public Law 111-117) — and this section carried forward by Section 1101(a)(6) of Division B of the recently enacted Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Public Law 112-10).

Will Any PA Personnel Be Located in Gaza?

Regardless of the technical details of the unity government, the governing statute cited above strictly prohibits U.S. funding for the salaries of Palestinian Authority personnel located in Gaza.

Will Hamas Effectively Control Any Palestinian Entities?

Assistance to Hamas or any entity effectively controlled by Hamas is strictly prohibited under current law. Therefore, any PA agency, institution or ministry effectively controlled by Hamas would be ineligible to receive U.S. funding.

Have Ministers of the New Government Accepted Key Principles?

The governing statute clearly states that each minister or such equivalent must publicly acknowledge the Jewish state of Israel’s right to exist and commit him or herself to all previous agreements and understandings with the United States, Israel and the international community, including the Roadmap to Peace (which includes the renunciation of violence).

Did They Accept the Key Principles in Writing?

A verbal statement, whether issued in public or private, is not enough to satisfy the governing statute. The Committee clearly defined “publicly” as “in writing.” We must be able to see signed copies of each minister or equivalent’s acceptance of key principles.

What about Officials of Equivalent Stature or Rank to a Minister?

Just because someone is not called “minister” doesn’t mean they are above the law. The Committee clearly defined “equivalent” as an official with an equivalent rank or stature to a minister. If any such positions are created by the unity government agreement, those individuals must accept the key principles in writing as well.

Will Hamas Security Forces Work in Coordination with PA Security Forces?

According to news reports, the final Fatah-Hamas agreement may include “security arrangements” to facilitate Fatah-Hamas border and other security cooperation. On November 24, 2010, Secretary Clinton re-designated Hamas as a foreign terrorist organization (FTO) in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. Therefore, should PA security forces enter into cooperation with Hamas security forces, U.S. assistance for Palestinian security may be prohibited.

Has Hamas Joined the Palestine Liberation Organization?

According to news reports, the final Fatah-Hamas agreement may include a “restructuring” of the Palestine Liberation Organization (PLO) to permit Hamas to join. On November 24, 2010, Secretary Clinton re-designated Hamas as a foreign terrorist organization (FTO) in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. Therefore, should Hamas join the PLO, the Secretary may be forced to designate the PLO as an FTO.

Under the law, such designation would make it unlawful for a person in the United States or subject to the jurisdiction of the United States to knowingly provide “material support or resources” to the PLO (i.e., any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials).

Under the law, PLO representatives and members, if they are aliens, would be inadmissible to and, in certain circumstances, removable from the United States. Furthermore, any U.S. financial institution that becomes aware that it has possession of or control over funds in which the PLO or its agent has an interest must retain possession of or control over the funds and report the funds to the Office of Foreign Assets Control of the U.S. Department of the Treasury.

In short, the administration’s ability to navigate around all of these restrictions is limited. President Obama might try to sustain a relationship with a Hamas-Fatah entity, but Congress is in no mood to countenance such machinations. The administration will have to be dragged kicking and screaming from the non-peace, non-process that has absorbed its attention and on which the president has staked his credibility. He might hope that the Hamas- Fatah alliance collapses under its own weight, but the PA’s desire for such an accord should, if nothing else, signal that whether Obama likes it or not, we are in a post-Oslo era and need a new Middle East policy.