Saturday, October 18, 2014

Keep Your Eyes on the Road: Turn Off that Phone.

I used to drive to my law job dominated by email communication.  The Blackberry siting on my desk used to wink its little blue light at me every time an email arrived. At other times, it would vibrate gently in my pocket: check me, check me. 

Checking emails in real time becomes a habit. It's addictive. It keeps spam under control. It lets you communicate with clients timely. Like Pavlov's German Shepard and his drool, when that buzz goes off, or the little blue light blinks, I reach for my phone. I do it when I wake up in the middle of the night, I do it first thing in the morning, I do it all day long. I did it driving in my car. 

When I got an I-phone it became worse. Much worse. Now, in addition to email, there's Facebook, and Instagram, and New York Times updates, and Neue Zurcher Zeitung updates, and Twitter feeds--a continuous stream of stimulus response. 

Over time, I became aware, this is a bad idea when driving. I try not to. But I cheat. I make exceptions. Just a quicky while waiting at the light, just a glance on the Freeway when no cars are around. Don't do it 

I was helped with my predicament when my job moved to the City and I began to commute by streetcar. Now I seldom drive. I was also lucky. I always managed to look up in time, to correct the car back into its lane. I escaped scot free. 

Not everyone is so lucky. One second to the next: everything can change. To drive this home for us, Werner Herzog has directed  a fine documentary about four tragic accidents caused by texting, from Wisconsin, Indiana, Vermont, and Utah.  

If you've not seen this film, you owe it to yourself. It will give you a jolt to get real. You owe it your potential victims.  See this film, it's just 35 minutes. Turn off that phone when you drive.  For real.

Friday, October 17, 2014

Should Western European Countries Recognize an Independent State of Palestine: Would it Help?

In the wake of the British parliament's non-binding resolution to recognize a Palestinian state, Swedish Prime Minster Stefan Lofven's announcement that Sweden will recognize a Palestinian state,  the French foreign minister's hinting that France might join in, and John Kerry's attempting to delay a Palestinain U.N. application for statehood until after the U.S. mid-term elections, the New York Times has assembled seven prominent panelists to debate: "Should nations recognize a Palestinian state?"

In reality this is more like "state your position for the record" than a debate.  Still, how do they line up?

Nathan Thrall is a senior analyst with the International Crisis Group. He notes with some resignation that 134 countries have already recognized a Palestinian state, mostly after the PLO's 1988 declaration of independence, and that this has had no effect whatsoever on negotiations to date.  He is skeptical that the declaration of a few more stragglers, mostly in Western Europe, will change very much. I count him as a shoulder shrug.

Efraim Halevy was director of the Mossad (Israel's agency for intelligence collection, covert operations, and counter-terrorism) from 1998-2002.  In 2002 he was appointed to the Israeli National Security Counsel and was an advisor to Ariel Sharon. He suggests that recognition of an independent Palestinian state "will cause irreparable damage to the Palestinians."  Why?  It's not clear. He essentially says, trust me, on the ground it will have no effect, and the international community will soon move on from this issue, and will "not invest power, prestige, and funds to chaperone an artificial 'state.'"  On the other hand, and seemingly contradictory, he says the PA may fail if recognition is granted (he fails to explain why this should be the case more so than now) and that Israel may have serious legal, international, and economic problems as a result.  The first half of his argument sounds like he's hoping (perhaps unrealistically?); the second half sounds like a plus for Palestinians, not a negative. I count him as a "No."

Caroline Glick is the American born senior deputy editor of the Jerusalem Post. She articulates the Zionist greater Israel position which she staked out in her book The Israeli Solution: a One State Plan for Peace in the Middle East.  Israel is a Jewish state and will always be so, she says; the Jews have a superior right to the land, including Judea and Samaria; and once Israel asserts sovereignty over all the land, the Palestinians will accept their subordinate status under Jewish sovereignty.  In other words, states should not recognize an independent Palestinian state because there will be no independent Palestinian state.  Here is Glick:
Like his coalition partner, the Hamas terror master Khaled Mashaal, ... Mahmoud Abbas has pledged, repeatedly, over decades that he will never, ever recognize Israel as the Jewish state, meaning he will never recognize Israel. ....So when Lofven recognized “Palestine,” he joined the Palestinian campaign to destroy Israel. He used the language of the “two-state solution” to reject the Jewish state..... They know that if Israel succumbs to their political and economic warfare and cedes its capital city and historic heartland to its enemies, it will be unable to defend its remaining territory. And they know that like Gaza, those areas will quickly be taken over by Hamas, which will use them to launch a war of annihilation against Israel in conjunction with its jihadist brethren in surrounding states. In other words, they know that in recognizing “Palestine” they are not helping the cause of peace. They are advancing Israel’s ruin. If they were even remotely interested in freedom and peace, the Europeans would be doing the opposite. They would be working to strengthen and expand Israel, the only stable zone of freedom and peace in the region. They would abandon the phony two-state solution.
The "won't recognize Israel as the Jewish state, meaning he will never recognize Israel" is easy to gloss over.  However, it means "Israel intends to remain a Jewish state, no matter that the Palestinian population may be 50 percent of the population and growing." Israel will remain a Jewish state that continues to preference Jews over non-Jews in all aspects of life.  This is the hegemony of the Third Temple. And Israel will have to defend this position with the IDF....forever.  I count her as "No, no, a thousand times no." 

Avital Leibovich, is director of the Jerusalem office for the American Jewish Congress (AJC) and a former spokesperson for the Israeli Defense Forces. She, apparently speaking officially for the AJC because her comments are featured on the AJC website, agrees that states should not recognize an independent Palestinian state because it would "lead to false expectations." She goes on to say that Palestine has not made the basic conditions for statehood.  What she doesn't say, but which is understood, is that Israel will never allow Palestinians to meet the basic conditions for statehood.  Leibovich's comments mirror the official Israeli government position. Her position is identical to Caroline Glick's in reality. I count her as "No." 

Omar Barghouti, was born in Qatar, grew up in Egypt and now lives in Ramallah.  He is a founder of the boycott movement (BDS) against Israel. He has fear that there may be some truth to what Halevy says: that the vote for a Palestinian state may be taken as a fig leaf for an apartheid state that doesn't really deliver sovereignty to Palestinians. Palestinians need "the full menu" of human rights, says Barghouti; they need a full right of self-determination within a state of Palestine, full and equal rights for Palestinians within Israel, and a right of return to Israel for Palestinians expelled in 1948. In other words, Israel as a Jewish state that privileges Jews over all others within its borders, and a state that occupies a Palestinian state in any way, must end.  I count him as "Sure, but I'm not jumping up and down."

Richard Ottoway, is a conservative member of the British House of Commons and a member of its Foreign Affairs Select Committee. He says he has stood with Israel since 1967 when he helped clear mines with the Royal Navy in the Straits of Tiran, and through all its wars since then.... but he's fed up.
I cannot sit and watch the Israelis grabbing successive stretches of land in the West Bank. The annexation of 990 acres of Palestinian land just a few days after the conclusion of the cease-fire agreement with Hamas was a provocation. It has outraged me. Although Gaza and the West Bank have been fractured with internal rivalries, although Hamas has fired thousands of rockets indiscriminately toward Israel, although it has used its own people as human shields, I could not have voted against the motion to recognize Palestinian statehood. Under normal circumstances, I would have done so. But such was my anger over Israel’s behavior in recent months that I abstained last Monday. My abstention is my message of protest to the Israeli government. The Parliament’s decision to recognize Palestine is mainly symbolic. However, I truly hope that one day the Israelis and the Palestinians will reach an agreement that will bring lasting peace.
Note that Ottoway did not vote on this resolution in the British Parliament, he abstained.  I count him as "We've got to do something!"

Nadia Hijab, is the director of Al-Shabaka, the Institute for Palestine Studies. She is located in Washington, D.C.  The Institute for Palestine Studies was founded in Beirut in 1963 and today has offices in Beirut, Ramallah, Paris, and Washington, D.C. The main function of the Washington office is to produce the quarterly Journal of Palestine Studies, published and distributed by the University of California Press at Berkeley. The Washington office is also responsible for the Institute's educational outreach in the United States.  Hijab agrees with Bargouti that "the problem lies in how Palestinian rights are defined, and who is doing the defining." She is agnostic on whether a two state model is better or a one state solution is better: "Either outcome would be acceptable if it guaranteed equal rights of all citizens." 
Major European states might come to recognize Palestine, enabling the P.L.O. to pursue legal complaints in European courts. But the P.L.O. already has legal tools it is not using to further Palestinian rights. By contrast, the rights-based demands of the Palestinian-led Boycott, Divestment and Sanctions (or B.D.S.) movement – which takes no position on statehood – resonate with people everywhere and it has been effective in putting a price to Israel’s occupation. 
The truth is, there is no political outcome in the foreseeable future. European recognition of a Palestinian state could well pressure Israel to behave in accordance with international law. But whatever the ultimate outcome, one state or two, you can’t go wrong with rights.
I count her as "Hey, let's keep our eyes on the ball of equal rights for all citizens; aka shoulder shrug"

So on the question "Should more states recognize Palestine as an independent state and would it help?" what do the Times panelists tell us?  I score this as: Noes (3); Ayes (1); Shoulder shrug (2); and "We've got to do something" (1).... which adds up to inertia and more status quo.

Thursday, October 16, 2014

Don't Miss Yuval Ben-Ami's New Series at +972

Yuval Ben-Ami is an Israeli writer who contributes to the Israeli version of National Geographic, various newspapers, and the +972 group blog. He is starting a series meditating on Israeli tourist sites. 

Here is the introductory post.

Here is an excerpt from part one on the Kotel:
The religion of longing 
...  I love Judaism for the same reason I love the blues. Picture the cliché of an old timer blues musician, taken to an extreme. He’s poor, he’s blind and he’s the victim of a severly racist system. His girl left him and his drinking habit won’t. What does he do with all that? He makes art, beautiful art. Here is what Judaism has been for over two millennia: a creative response to a being extremely unlucky. 
There once was a religion that centered on a temple, where sacrifices were performed by priests. The last and finest of those temples was destroyed in 70 AD and left the people irrecoverably scarred. Rather than die out, the Jewish nation reinvented its practices, moving them into the synagogue and the home. The new Jewish religion focused on the very sense of grief and longing, as well as the hope for a mystical undoing of the disaster. It expressed this by poetry and prayer, and a broken glass at each wedding. 
The sole and humble ruin left of the temple became an important symbol. ... It is the very modesty of the wall that made it what it is. A good blues tune has four verses and is accompanied by a single guitar. 
Enter the red berets 
It’s still there, and is mind blowing. The enormous stones tower over the pavement. Doves flock among bushes that have taken root among the cracks. Still, something is missing, something crucial: that modesty. 
... Since June 1967 and Israel’s conquest of the city, the Wall has become an Israeli national symbol, and by extension, a military symbol. ... A symbol of tender emotions was turned into a symbol of might. To many Jews, this is the fulfillment of an aspiration. Zionism saved the Jewish people, some would argue — but there is a cost. 
The postcard project 
For 2,000 years the Jewish people longed for the temple. Today I find myself longing for the longing. No ceremony is held before me in the plaza, yet nearly everyone present is in uniform. Ultra-Orthodox Jerusalem appears to be taking an inter-holiday break; the tourists are elsewhere and no bar mitzvah drums are beating at the moment. I have arrived at the parade grounds of a military base.  
... The soldiers themselves are all members of the artillery corps, here on an educational excursion. A few are training to become guides themselves and take other soldiers on tours. This is only the second site they visit, the first being Independence Park in the heart of West Jerusalem. ... A few feet away, a tourist is shooting a group photo of about 20 soldiers, all of whom are holding up postcards. The soldiers tell me that the tourist is named Sara or Sarah, and that she presented the cards as a gift. I follow her to the next group of soldiers. She explains to them that she is a long time European traveler who is deeply fond of Israel, and particularly of the IDF. 
“I asked people around the world to send me postcards addressed to you, to Israeli soldiers,” she explains. “People around the world don’t know what you are going through. They know nothing about the kind of love and mutual support that you share. You are beautiful in the heart, so don’t believe the blah blah blah the politicians say. Stand strong and be proud,” she says as she hands the postcards around. 
I wait to speak to Sara and learn more about her and the project but there’s no shade and it’s getting too hot to bear. She is too engaged with the soldiers to be disturbed. I sense that she is close to tears. She is having a religious experience, and as I wait, I realize that I have just witnessed the Wall go full circle: from a place where god is worshipped to a place where the military is worshipped. 
Of course, Sara is not the first to arrive here with letters. The most well-known tradition attached to the wall is that of sticking notes with prayers and wishes among the stones. Many people send notes with friends or family who are traveling here, to be folded and placed in the cracks on their behalf. There’s a certain beauty in seeing letters delivered here into human hands instead of into stone cracks, and I can’t help but ask myself: has the wall, that powerful symbol of the Jewish nation’s unrequited love for god, indeed become unnecessary? Should we stop longing? Have we arrived? 
Is our destiny truly war?
Roland Nikles photo, April 2014

On Polling the Muslims and Being Appalled

The Pew Research Forum on Religion and Public Life has published a lengthy report on Muslim attitudes and beliefs in 39 countries.  It makes for dreary, if not hopeless reading. Pew conducted face to face interviews with more than 38,000 people.  Their report, dated April 30, 2013 includes the following findings: 
  • Muslims believe a wife must always obey her husband; although many also report the  contradictory belief that women should be able to choose whether to wear the veil. 
  • Overwhelming percentages of Muslims in many of these countries want Islamic law (sharia) to be the official law of the land, but many supporters of sharia say it should apply only to their country’s Muslim population.  The prevailing view is that sharia law is the literal law of God--not man made law based on the word of God. However, Pew notes that views about implementing sharia tends to mirror a country’s existing legal system. 
  • Large majorities believe cutting off hands for theft and the death penalty for Muslims who renounce their faith is appropriate. 
  • Large numbers believe stoning women to death for adultery is an appropriate punishment. Notably, 81 percent of Muslims in the Palestinian Territories believe this. 
  • Clear majorities in most countries do not support suicide bombings and say such acts are rarely or never justified as a means of defending Islam from its enemies. 
  • Most Muslims exhibit tolerance to other religions and say it is a good thing when others are very free to practice their religion. 
  •  Most Muslims are comfortable practicing their faith in the contemporary world. Relatively few feel there is an inherent conflict between being religiously devout and living in a modern society; the prevailing view in most countries surveyed is that there is no inherent conflict between religion and science. However, most Muslims think Western music, movies and television pose a threat to morality in their country – even though, on a personal level, substantial percentages say they enjoy Western entertainment.
Some of these beliefs are anathema to Western sensibilities.  Witness the recent exchange between Bill Maher, Sam Harris, Ben Afleck and Nicholas Kristof

"Islam is the motherlode of bad ideas," says Sam Harris: 

Reza Aslan in the Times says, "Yes, but don't take the ideas too seriously."  He made the following observation:
What both the believers and the critics often miss is that religion is often far more a matter of identity than it is a matter of beliefs and practices. The phrase “I am a Muslim,” “I am a Christian,” “I am a Jew” and the like is, often, not so much a description of what a person believes or what rituals he or she follows, as a simple statement of identity, of how the speaker views her or his place in the world.
There's something to this. Take, for example, the 81 percent of Muslims in the Palestinian Territories who profess support for honor killings.  That's an awful number. And honor killings have spiked recently, increasing from 13 documented cases in 2012 to 27 documented cases in 2013 (I believe this is West Bank only).  But the increase has resulted in a significant backlash.

From Washington Post, March 3, 2014:
"Honor killing, once hidden behind a curtain of silence and shame, is beginning to generate condemnation of its perpetrators, public support for its victims and vows to stop the practice. “The entire society is incensed by the increase,” said Rabiha Diab, the minister of women’s affairs in the West Bank."
A backlash and "the entire society is incensed" against it makes it apparent that the 81% support for honor killings that shows up in the Pew poll does not reflect real belief when the ugly reality rears its head. There's hope in that. As Anne-Marie O'Connor puts it in her linked WP article:
"The age-old rationale can serve as a cover for domestic abuse, inheritance disputes, rape, incest or the desire to punish female independence, according to Maha Abu-Dayyeh, the general director of the Women’s Center for Legal Aid and Counseling, a Palestinian human rights group that tracks the killings."
Honor killings reflect a real social problem, as well as a religious problem that must be addressed. But its not clear that we can draw a straight line from the Pew polling numbers in support of honor killings, in support of death sentences for leaving the faith, and in support of the fatwah for irreverent cartoons of Mohammad, to ISIL (Islamic State in the Levant) and its outrages. I'm skeptical that what Muslims say about honor killings, sharia law, leaving the faith, and cutting off of hands for thieves in response to Pew polling explains the barbarity of ISIL, the falling apart of Syria, the failure of Iraq post 2003, the Iranian revolution, the Iran-Iraq war of 1980-88, the discontents of the Muslim brotherhood and Al Quaeda, or the abuses of the secular dictatorships throughout the Islamic world.

David Shasha, the director of the Center for Sephardic Heritage in Brooklyn, NY, says that in order to understand the current dysfunction within Islam in the Middle East, and to find a solution to it, we must look at the broader cultural and political forces at work during colonial times, and especially since the collapse of the Ottoman empire and the discovery of oil. He points to an Arab tradition of culture and literary sophistication that flourished in the 19th century and which promised real possibilities of modernization at the close of the Ottoman empire. Why didn't it happen? Shasha says the answer lies in history, in the role played by the West in carving up the territory, its lack of respect for Arab culture, traditions, and religion, its promotion of coups in Iran, its support of oil dictators, its support of an Israeli colonial project, and its support of dictators from Baghdad to Tripoli.

The main criticism here, that any response to Maher and Harris must be rooted in an understanding of the broader social political forces, and not in downplaying the dysfunction of the religious culture as we find it today, seems clearly correct.  Don't look for an uncorrupted strain of Islam, or in cold war politics, says Shasha, look in the Arab cultural heritage, look for healing in the promise that lies within this rich tradition. Muslims don't need to rewrite the Koran in this process. That seems correct.

But colonial past and support of present oil dictators or not, I'm not sure that its productive to blame the West for the fact that the Arab culture of manners and literary sophistication abandoned the field, seemingly without a fight.  This Arab flourishing of culture and potential for modernity that Shasha refers to occurred in colonial times, after all.  Since the end of the Ottoman empire we got the Muslim Brotherhood, Wahabiism, Hamas, Hezbollah, the Taliban, Al Queada, and ISIL; it's not obvious to me why that Arab promise of modernization was so utterly broken, and why blame for this lies with the West. This broken promise strikes me not unlike the collapse of Weimar Germany into the thuggery that was National Socialism: yeah the French and British had something to do with this, but I don't think you can blame them for it.

Maher and Harris are looking at the Pew polling and they are crying out for those champions of culture and literary sophistication that Shasha mentions.  That much seems right.  Ultimately, however, the Arabs will have to work on fulfilling that promise of cultural and literary sophistication from within; we can't do it for them. If those Pew polling responses start to shift towards something less appalling, we'll know they are making progress. As we know from our civil rights battles regarding marriage across color lines, and our more recent battles for same sex marriage--poll numbers can change in a hurry when the conditions are right.

Wednesday, October 8, 2014

Working on the Rule of Law in Palestine

John McKay was fired by the George W. Bush Administration from his post as U.S. Attorney for the Western District of Washington, which should be reason enough for you to want to listen to him.  But more importantly, he seems like a man of integrity with a strong sense of justice. In any case, he has an interesting story to tell.

After his firing from the U.S. Attorney post he joined the faculty at University of Seattle School of Law.  Seattle University is a Jesuit institution.  They too have a strong commitment to social justice projects.  So for the past 15 months, and through the spring of 2015, professor McKay is back on loan to the U.S. Government.  He is living in Ramallah, Palestine, where he heads up a program that works with 30 Palestinian lawyers, former police offers, technologists, analysts and Palestinian prosecutors to enhance public safety, human rights, and the rule of law.  His salary is paid by the U.S. Bureau of International Narcotics and Law Enforcement. It's part of the U.S. commitment under the Oslo accords.

One of the key things they're working on, says McKay, is for the Palestinian Authority to rely less on witness testimony and more on physical and other forensic evidence. By overemphasizing witness testimony, says McKay, the system is geared towards extracting confessions in every case, which leads to abuses of human rights and unreliable testimony.

On September 16, 2014, professor McKay spoke at the law school about his work in Palestine, the people, the food, the occupation, and his work.  His talk outlines the arc of oppressive military occupation and rule in Northern Ireland and compares this to the current situation in Palestine, with an eye to lessons learned.  He briefly touches on Guantanamo, as well as Operation Protective Edge.

If you have an interest in the history of the Northern Ireland "troubles" and the current situation in Palestine, this talk is a very interesting hour.

Here is a link to his talk.  His talk starts at 11:23 and I would go straight there.

Saturday, October 4, 2014

Enough Already: Shut Down Guantanamo!

Guantanamo prison was opened by the Bush administration on January 11, 2002.  The man who opened it says it should never have been opened.  Like electronic surveillance of the internet, this kind of extra-judicial detention is easier to start than to shut down.

Five Years Since a Promised Return to the Rule of Law

By January 2009, when Obama assumed the Presidency, there remained 242 detainees in Guantanamo.  The vast majority (80%) of these were captured in Afghanistan/Pakistan in the early operations of the war in Afghanistan.  Many of them were not captured on the battlefield but turned in for large bounties  offered by the U.S. government. Many of them were from Yemen.

Obama assumed office in January 2009 determined to close Guantanamo within a year.  The goal was to return remaining inmates to their home country, to release them, transfer them to a third country, or  to another U.S. facility subject to the rule of law.  It was not to be.  It soon became apparent that third countries were not eager to take Guantanamo detainees, and Congress wanted nothing to do with transferring alleged terrorists to U.S. soil...or having them released.  On May 19, 2010, the U.S. House of Representatives Armed Services Committee unanimously blocked funding for a proposed facility in Thompson, Illinois and blocked funding for any future potential replacement sites.  To further complicate matters Congress also blocked funding to transfer any prisoners to U.S. soil, even for trial, and blocked funding to transfer them to third countries unless Secretary of Defense Gates personally certified that they posed no risk to the United States. [This certification requirement was somewhat relaxed by Sec. 1028 of the 2013 National Defense Appropriations Act to a level that can conceivably be met]

At this time 149 prisoners remain in custody.  Seventy-eight of these have never been charged with anything and are not deemed a risk of reverting to terrorism. Thirty-eight are deemed too dangerous to release even though the government lacks sufficient evidence to convict them of anything.  A few have been convicted.  The rest are in limbo and may, or may not be tried in some tribunal or court at some indefinite time and location in the future.

In the twelve and a half years since the prison was opened, more prisoners have died (9) than have been convicted (8). 

The Hunger Strikers

Abu Wa'el Dhiab has been held at Guantanomo since 2002.  He has never been charged with anything.  In 2005 he initiated a federal suit challenging his indefinite detention as violating the U.S. Constitution, the Alien Tort Statute (28 U.S.C. Sec. 1350), and international law.  Justice moves slowly.   In 2009 the Guantanamo Review Task Force cleared Mr. Dhiab for release from detention, but five years later he still has not been released and his action is still pending. He has not had his day in court.

In order to protest his continued detention, Mr. Dhiab (along with several dozen other prisoners) has been on a long term hunger strike since the spring of 2013. The government has chosen to force-feed him  using a painful method consisting of being restrained in a chair, having a plastic tube forced down the nose and into the stomach, and injecting nutrients. The procedure causes a gag reflex, panic, difficulty in breathing, and pain.

In July, 2013, Mr. Diabh filed a motion in his action to enjoin the government from continued use of this method of force feeding. The District court ruled it did not have jurisdiction. Mr. Diabh appealed.  Justice moves slowly. In the meantime, the painful force-feeding continued. Six months later, on February 11, 2014, the court of appeals held that the District Court did have jurisdiction to rule on the conditions of Mr. Diabh's confinement after all.

In May 2014, the government revealed that it had several videotapes of the force-feeding. After some discovery motions the government lodged the videotapes with the court as privileged documents under seal. Several news organizations intervened in the case to ask the judge to grant access to these tapes.  The government resisted disclosure arguing that it had marked the tapes as "classified" and that the videos would prove inflammatory in a way that might be touted by terrorists, and thus hurt the fight against terror.

On Friday, October 3, 2014 a U.S. District court judge in Washington D.C ruled that the media must be granted access to the videos of this force-feeding.  The court strongly rejected the government's argument that it should be able to suppress these videos because they might place the U.S. in a bad light. The court noted that evidence lodged in a trial is generally a matter of public record and that any exceptions have to be determined by the court, not by the government on its own prerogative. The government may or may not appeal.

In the meantime, a hearing is scheduled next week before the court on whether the force-feeding can continue in its present manner. The merits of the constitutional, statutory, and international law claims  remain some time off.

Justice moves slowly.

The Curse of Politics

In the meantime, vile politics continue to determine the fate of the 78 detainees who, after 14 years, remain uncharged with anything and have been determined not to be a terrorist threat.  A key purpose of the rule of law is to protect us from the venality and arbitrariness of smarmy politicians. To respond "These are just a bunch of Yemeni's" is no answer. 

As Baher Azmi, legal director of the Center of Constitutional Rights, explains: 
Who is let go doesn't necessarily depend on the seriousness of the charges against them. It's often a political determination; so we're now hearing reports that the United States is negotiating over the release of five Taliban detainees who are high level Taliban officials, and yet there are people with the most preposterously tenuous connections to the Taliban or terrorism in general who won't get out because there is no genuinely rational or judicially managed process in Guantanamo. It's subject to the political whim of the Executive and fear mongering generated by Congress to cow the Executive from taking the kind of action he promised he'd take three years ago. ...
 I used to teach U.S. constitutional law at Seton Hall law school. And it occurs to me that this generation of first year law students, say 24 years old, will have spent the majority of their adult, politically awake lives with an institution like Guantanamo in existence. And it's going to be so much harder to explain to them how incredibly anomalous this place is in the constitutional American human rights tradition, when they see it as utterly ordinary to their experience. 

Release of Those Five Taliban Officials

The five Taliban officials that Azmi refers to are the five who were exchanged by Obama for Sgt. Bergdahl this past May. Sergeant Bergdahl was an imbalanced U.S. army deserter who was captured by the Taliban aligned Haqqani network in Eastern Afghanistan.  In order to secure his release, Obama agreed to release five Taliban officials from Guantanamo.  These were part of the two dozen detainees categorized as "too dangerous to release" until the final defeat of world-wide terrorism. It's curious that all of a sudden they are "o.k. to release" in exchange for some mentally deranged deserter.  Congress jumped all over Obama for being soft on terrorism by agreeing to the exchange. 

I support the release of these five Taliban officials in order to obtain the release and return of Sgt. Bergdahl. I do so because I don't think that the release of any of the Guantanamo detainees will hurt the war on terror. To the contrary, to the extent that we set an example to live by the rule of law, we are helping the war on terror. We need to live by the rule of law to explain it to the next generation of law students, and the world. 

Setting an example to live by the rule of law means, granting all Guantanamo detainees due process and a fair and speedy trial.  Twelve years is long past "speedy." It's long past sufficient time to gather what evidence the government can muster.  

Charge and try these detainees in a fair trial, or release them. All of them. Now. 

Tuesday, September 30, 2014

Throwing in the Towel on Universal Democratic Values

This post has been updated and corrected to correct my initial misreading of Prof. Yaacov Yadgar's tone. I have had an email exchange with Prof. Yadgar wherein he brought to my attention that he is not in any way advocating for or supporting the state's implicit abandonment of universal democratic values that he describes. He believes that the state, for the historical reasons he details, has misappropriated Jewish traditions to privilege Jewish citizens of the State of Israel over others. I reiterate my apology to him for my initial misreading of his intent (and inappropriately imputing that view to Bar Ilan as an institution)


The key political values in the United States are freedom of conscience, freedom of speech, equal rights and protection under the law irrespective of gender, race, ethnicity, or religion.  These values commit us, as a matter of necessity, to a clear separation of church and state and to a strong and independent judiciary.  When push comes to shove, these are the values we'll fight and die for.

Our Enlightenment Heritage

These political ideas arose from the Enlightenment and were enshrined by our founding fathers in the Declaration of Independence, the Federalist Papers, and the Constitution.  The American example, in turn, inspired the French revolution, the French declaration of the Rights of Man, and the foundation of modern nation states in general.

We believe these democratic values to be universal.

The Chinese don't subscribe to these Enlightenment values. They think it's o.k. to suppress freedom of speech, to privilege party insiders to be in charge of major industries and enterprises (and to enrich themselves accordingly), for party insiders to control the courts, the army, the security services. And due process, who needs it? We don't get that. We fail to understand the theoretical model for what the Chinese are doing. [And for any of you Chinese censors reading this, feel free to think about it and email me an explanation]

We look at the nascent Islamic State. To the extent this monstrosity embodies any political values, those values trace back to a misguided conception of the divine.  We reject the divine as a basis for forming a nation state.

Can we get our head around the notion of a "Jewish state?"

Zionism and "Two States"

Zionism presents an interesting case. The founders of the modern state of Israel, by and large, have subscribed to the Enlightenment principles of universal democratic values. Israel likes to think of itself as the only modern democracy in the Middle East. But in practice these Enlightenment values are hard to shoehorn into a Jewish State run by and for Jews when there is a 25% non-Jewish minority (within the '48 borders), a 40% non-Jewish minority if we include the West Bank, and a 50/50 split if we include all of Greater Israel.

Liberal Zionism has its theorists. Bernard Avishai argues for a Hebrew Republic that must be "brought up to code" with the political values of a fully modern nation state (separation of church and state, universal citizenship, and equal rights and protection for all citizens) while preserving a Hebrew culture. Avishai envisions this can be done consistent with universal democratic values, in a manner like Quebec preserves and privileges French culture.  Alan Dershowitz and Peter Beinart subscribe to some version of this. The folks at +972 Magazine subscribe to some version of this.

Privileging Hebrew culture for the state as a whole in a framework of universal democratic values, however, requires a strong majority of Hebrew speakers. Quebec has 5.1 million native French speakers and 1.6 million native English speakers.  Israel has a strong majority of Hebrew speakers within the 1948 borders, but this majority is greatly reduced if the West Bank were annexed and everyone granted citizenship, as Rueven Rivlin (Israel's President) advocates. If the people of Gaza are also included, the majority is gone.

The need for a strong Jewish demographic majority is what drives the need for a two state solution. Israel continues to pay lip service to it. The settler's not so much. Abbas continues to hold out for a Palestinian state on all of the territory occupied in 1967, with a capital in Al-Quds (Jerusalem). Hamas, not so much.  And nobody who matters in Israel is acting to bring about two states. The two state solution appears politically impossible to achieve.

The fall-back position as a matter of political theory, appears to be a state with universal democratic values.  This means Jews cannot be privileged over non-Jews. Jewish control over the state would be reduced, even if a space is carved out for the protection of Jewish culture alongside a protected space for Arab culture.  Power would have to be shared. This type of power sharing should be possible in theory.  In practice, the stalemate may become very bloody.

Giving up on the Enlightenment?

Professor Yaacov Yadgar, is a tenured Senior lecturer at Bar Ilan University. He has an interesting article in the Journal of Religion and Society, The Kriptke Center (Vol. 16, 2014)(Overcoming the 'Religion and Politics' Discourse: A New Interpretation of the Israeli Case) in which he contends that religion and politics in Israel have evolved in a manner that radically departs from Enlightenment democratic values.

Yaacov Yadgar
Professor Yadgar obtained a BA there (1996), a  PhD (2000), he was a lecturer 2001-2004, and he has been a tenured senior lecturer since  2004.  Professor Yadgar has been a visiting scholar at Columbia University, UC Berkeley, Rutgers, and Hebrew University.

The concept of separation of church and state, says Yadgar, is "foreign to Jewish traditions." Jewish traditions have historically served both secular state functions and religious functions. The concept of Judaism as a "religion" separate from politics, he explains, was the result of Germany, France, and England beginning to define themselves in secular terms.  Jews in these places wanted to see themselves as loyal subjects of the secular state, while still faithful adherents of the Jewish religion.   The keepers of religion and politics in Israel today might say "this is just so Diaspora!"

In this Enlightenment context, Zionism envisioned that Judaism (as religion) was just a personal, apolitical matter of 'spirituality.' This religious Judaism was not a nationality. What Zionists needed was a nationality, not  a religion. Although Jewish religion has been part of the history of the Jewish nation, Zionists asserted that it is Jewish nationality, not religion, which defines the people.  This idea, says Yadgar, stands at the core of the founding Zionists' conception of the State of Israel as a secular state of the Jewish nation.

Privileging Jews over non-Jews

By building up a secular Jewish state, says Yadgar, the early Zionist leaders were then confronted with how to define the Jewish nation.  How would Zionism relate to the tradition and how would it build up a national narrative that was not "besmirched with the stain of religiosity?"
Several Zionist leaders and thinkers chose largely to ignore this question, focusing instead on the notion of Jewish political power by way of imagining the 'Jews' State' as a sort of European nation-state...that is ruled by Europeans of Jewish descent. Others ... viewed the Zionist project as primarily obligated to 'secularize' Judaism, that is to reinterpret Jewish traditions so as to make them consistent with a rationalist, modernist, utilitarian world view, which will be the basis of the (secular) nation-state of the Jews.
Early Zionists got away with this, says Yadgar, only because they were all steeped in the tradition. They rebelled against the tradition, but they knew who they were, and they knew what they were rebelling against. Their start-up nation children and grandchildren, by contrast, were largely ignorant of the content of the religion and what the previous generations had rebelled against. Netanyahu and his generation ran into a problem: if the Jewish state is a matter of nationality, and not religion, what positive attributes define that nationality?

[Enlightenment values would say--Duh! If you live there, or if you're born there, you're in, you're part of the nationality. But this doesn't work for Zionism trying to preserve the idea of a "Jewish state"]

So, here's how Yadgar says the state resolved this issue:
"At the end, the state seems to have chosen to focus primarily on the constitution of a Jewish majority--a matter of 'demography'--as the principal condition for its existence as the state of the Jewish People; it put relatively few resources into answering the questions of how to converse with, and reinterpret, the Jewish traditions of the communities that constitute this majority. In the famous contest between two possible translations of Theodor Herzl's Judenstaat, the state's political elite has chosen to focus on the establishment of a "State of Jews," not necessarily on the constitution of a "Jewish State." Indeed this seems to be the core understanding of the meaning of Israel's being a Jewish nation-state among liberal, secularist Zionist circles, such as Haaretz's editorial board, which clearly states-- 'Zionism dreamed of a state for the Jews, not a Jewish state: a refuge for members of the Jewish people, not a state with an official religion like Muslim Saudi Arabia. The Balfour Declaration promised a national home, not a religious one. On Israeli identity cards, 'Jewish' describes a nationality (May 22, 2013).' 
"But even such a limited understanding of Jewish politics... [as] politics run by people of Jewish origins--is required to address certain issues of Jewish identity in order to run a nation-state that identifies as the state of the Jews. Primarily, the state is required to decide who counts as a Jew and who does not.
The state opted to outsource this determination of who counts as a Jew to the "rabbis and politicians who adhere to a conservative, orthodox interpretation of Jewish tradition."  Among other things, it granted to these official representatives of the religion the authority to oversee marriage laws, "essentially preventing marriages between Jews and non-Jews, thus preserving the distinction" between Jewish and non-Jewish citizens of the state.

As a result, says Yadgar, the State of Israel "has never attempted to genuinely build an Israeli national identity that would be 'liberated,' so to speak, from Jewish 'religion' and would naturally include the non-Jewish citizens of the state." This is illustrated, for example, when the Israeli Supreme Court refused to permit citizens to be registered as "Israeli" rather than "Jewish." The State, Yadgar says, "has been fostering a de-facto identification between Israeliness and Jewishness."  Although the meaning of this Jewish identity is vague, it "is distinct in one critical respect: it is a national identity reserved for Jews only."

The problem here, of course, is this leaves 25% of the population out in the cold if we're talking about citizens, and it leaves 40% of the population out in the cold if we include the West Bank, and it leaves 50% of the population out in the cold if we include all of Greater Israel.

Yadgar continues:  Although the state still nominally espouses a distinction between "religion" and "nationality," the fact that the state defines its national identity as "reserved for Jews only" means that the two concepts are essentially identical. This idea that Jewish religion and Jewish nationality are identical "stands at the core of the national school curriculum," and it accounts for a series of laws with a notoriously narrow interpretation of Jewish tradition. These narrowly religiously orthodox interpretations, and the religious coercion that goes with it, serves the secular Jewish majority, says Yadgar, because it is "what secures the maintenance and preservation" of the secular majority's identity "in a nation state that identifies as the state of the Jews."

Here's the troubling upshot from an Enlightenment universal democratic values point of view that Yadgar points out:
"Being a Jew in Israel means belonging to the majority, which enjoys a privileged position in every aspect of life; whoever is Jewish enjoys a political, symbolic, and cultural capital that is reserved for Jews only. ...The state... enforces 'religion' on the public sphere, through the 'status quo' arrangements among other ways, and guarantees by this the distinction between Jews and non-Jews, as well as the privileging of the former over the latter."   

Justifying the Occupation?

But if the State of Israel defines itself as existing for the purpose of granting a privileged position to Jews over non-Jews "in every aspect of life," as Yadgar suggests is the case, why would the state care about a majority?  If non-Jews are chopped liver, why should it matter whether they constitute 25% of the population, 40% of the population, or 51% of the population?

As soon as the state is willing to cross that threshold and is willing to privilege Jews over non-Jews "in every aspect of life," where does it draw the line? And on what basis?

The separation of Church and state came about for a reason: it is a necessary pre-condition for a state based on universal democratic values. Yadgar suggests that the state's guardians of what is Jewish and who counts as a member of the Jewish nation state have misappropriated Jewish traditions in order to define this national identity for Jews only, and in the process they have thrown in the towel on universal democratic values.