Netanyahu's Settlement Smoke Screens

It has become a fixed feature in the Israeli media, almost like the weather forecast. Nearly every day come reports that Prime Minister Binyamin Netanyahu's government is on the verge of a deal with President Obama to avoid a full freeze on construction in West Bank settlements. The sources are normally Israeli government officials, with an occasional American source speaking very far off the record.

What changes from one rumor to the next is the reason that the Obama administration has purportedly decided to let the concrete mixers keep churning: One day it's that Netanyahu has explained that he can't legally stop construction underway. The next day, he has persuaded Washington to accept "natural growth" of existing settlements or explained that his coalition will fall if he stops building. Together, these reasons are about as substantial as smoke, and if U.S. policymakers have done their homework, they know it.

Take the claim that the Israeli government doesn't have the legal power to stop construction once it has signed contracts with builders, or after buyers have put down money for homes. Netanyahu and Defense Minister Ehud Barak reportedly made that case to American envoy George Mitchell this month. But under Israeli Supreme Court precedents, the government's authority to set policy in territory under "belligerent occupation" (the court's terminology) trumps the interests of settlers and Israeli companies.

In 1992, the government of Yitzhak Rabin imposed a partial construction freeze in the West Bank. In two rulings, the Israeli Supreme Court rejected challenges to the freeze by developers and the municipal governments of settlements. The court eliminated any doubts left by those decisions with a far-reaching ruling in 2005, when it upheld the authority of the government and parliament to evacuate settlers from their homes in the Gaza Strip.

Achieving goals such as "peace, security, [and] international recognition" justified harming settlers' property rights and civil rights as long as they received financial compensation, Israel's highest court held. Let's be logical. If, for reasons of state, the court allowed the government to remove settlers from homes where they had lived for years, it would allow the state to prevent Israelis from completing homes where they haven't yet chosen the kitchen tiles. The only legal question would be how much compensation developers and buyers would receive. Netanyahu's reported assertion that he's hamstrung comes down to a hope that no one in Washington checks Israeli legal history.

Another claim is that the major building projects are in "settlement blocs" that are sure to remain in Israeli hands after a peace agreement. The term "blocs" refers loosely to clusters of large communities, most close to the pre-1967 border -- the Ma'aleh Adumim region east of Jerusalem, for instance. But the precise area of the blocs has never been defined. More important, Israel and the Palestinians have yet to reach an agreement on future borders. Lack of certainty about the blocs' future and their size is exactly the reason that the Israeli government continues to promote the blocs' expansion. As always, the purpose of settlement is to create a large enough Israeli presence that evacuation will seem impossible.

The argument that allowance must be made for "natural growth" of settlements is equally specious. Supposedly, building is needed to accommodate growing families and the adult children of settlers. But the alternative is obvious: Settlers have the option of moving into Israel proper; so do their children. In reality, migration has consistently flowed the opposite way, with the government's help.

As for Netanyahu's coalition -- yes, it could crack if he stops settlement expansion and his endorsement of a Palestinian state shifts from lip service to a diplomatic strategy. But Netanyahu's hard-right coalition is his choice. His Likud Party won fewer votes in the last election than Tzipi Livni's centrist Kadima party. Coalition talks with Livni collapsed over Netanyahu's unwillingness to pursue a two-state solution.

Netanyahu could still change his mind. In a multi-party parliamentary democracy, reshuffling a coalition is politics as usual. Livni would also resist an open-ended settlement freeze. But since her goal is to pursue the diplomatic process, she'd have an easier time agreeing to a defined moratorium -- allowing time for talks to proceed. A new coalition would be no less democratically chosen and would be more capable of pursuing peace. Netanyahu resists such a change for the same reason that he wants to expand settlements. He remains an ideological hard-liner, committed to keeping the maximum amount of land under Israeli rule.

All pretexts aside, Netanyahu agrees with Obama on this much: Building settlements stands in the way of an Israeli pullback and an agreement based on two states. They disagree on whether that's good or bad.

Amid all the rumors, the real question is whether the Obama administration will blink first or stand firm on a freeze as an essential step toward making peace.

Gershom Gorenberg, he author of The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 and a senior correspondent for the American Prospect.