Sunday, April 19, 2015

The Jews of France: Should they Stay or Should they Go?

“I am French; I am a Jew,” said Rabbi Daniel Dahan, chief rabbi of Aix-en- Provence, at the Berkeley law school this week.  He came to deliver a lecture on the state of French Jewry, and he appended a subtext to his talk: “The end of a 2,000 year story?”  “It’s a question,” he said.

France has the world’s third largest Jewish community (~500,000). And, as you may have heard, Israel’s prime minister Benjamin Netanyahu has called on them all to pack up their bags and leave for Israel. The pitch for this is Jews aren’t safe anywhere in the world and especially not in Europe, so they should all come and join fortress Israel. Presumably, from Netanyahu’s point of view, these immigrants should take up residence in East Jerusalem and the West Bank and enlist their kids in the Israeli Defense Forces to help manage the occupation for the next 50 years.

Through the middle ages, and up to the French revolution, this call to move to fortress Israel would have been an easy choice for Jews had it been an option. France was Catholic and intolerant of minorities. Jews were massacred during the crusades and periodically expelled. They were not citizens. They were not equal in the eyes of the law. Others suffered too. For example, in August 1572, Hugenots were massacred by the thousands in an orgy of Catholic mob violence. Nevertheless, a Jewish presence persisted.  The famous Talmudic scholar, Rashi, flourished in Troyes (on the Seine southeast of Paris) in the latter half of the 11th century.

An identity as “French and Jewish” as expressed by the Grand Rabbi of Aix-en-Provence, as opposed to “Jewish and precariously living in this foreign land,” is a relatively recent development. The story of Jewish citizenship in France starts with the declaration of the rights of man, the revolution of 1791, and Napoleon’s emancipation of the approximately 40,000 Jews living there at the time--primarily in two isolated communities in Bordeaux and Metz. In exchange for equal citizenship under the law, the Jews pledged their allegiance to the state. Through a gathering of Jewish notables (the Grand Sanhedrin) the Jews of France confirmed to Napoleon that “The Israelite is required to consider the land of his birth or adoption as his fatherland, and shall love and defend it when called upon.” In other words, the Enlightenment turned diaspora Jews into citizens of the countries where they live.

Viewed in this light, the Enlightenment marked nothing less than an end of the Jewish diaspora. Not everywhere, but in France and America and other places where Enlightenment values and modern liberal democratic states took hold.

In the wake of emancipation, the 19th century saw a great flourishing of Western European Jewry, as well as American Jewry. French Jews became active in the professions, business, banking, education, and government. It gave rise to the Yiddish saying “As happy as God in France.” It resulted in assimilation, the Jewish Reform movement, and Jewish immigration to France. In 1860 French Jews formed an organization (Alliance Israelite Universelle) to carry this human rights progress forward, to foster the rights of Jews as citizens everywhere, and to combat anti-Semitism in societies all over the world.

In 1905 France passed its law of separation of church and state and formalized the principle of laïcité (French secularity). The 1905 law emphasized religious neutrality of the state, guaranteed the freedom of religious exercise, and prohibited public funding of religions. This secular identity of the state became increasingly entrenched in the fabric of French political culture during the early twentieth century, even as most French continued to identify as Catholic. It is very much in force and in evidence today.

During the great migration from Eastern Europe to the United States in the late 19th and early 20th century, some Jews stayed in France, resulting in a significant increase in population. By 1900 Jewish population in France had doubled to 87,000; by 1911 population was 100,000; by 1922 it was 165,000; by 1933 250,000; and by the eve of World War II, Jewish population in France was more than 300,000.

This happy story of assimilation, prosperity, progress and growth in France was certainly not without blemish. It was sorely tested by a rise in anti-Semitism at the end of the 19th century, as highlighted by the Dreyfus affair. Albert Dreyfus, a Jewish French military officer was wrongly accused of treason for divulging military secrets to the Germans. He was convicted in a miscarriage of justice by a prejudiced military court, spurred on by anti-Semitic publications and expressions of anti-Semitism in society at large. But Dreyfus also had his defenders, among them the novelist Emil Zola who published a famous letter “J’accuse” in the newspaper owned by George Clemenceau (Premier of France during World War I).

Dreyfus was not a diaspora Jew living tentatively in a hostile land, packing up his bags to go somewhere else when the going got tough. The significance of the Dreyfus affair is that Dreyfus asserted his claim as a loyal French citizen. Together with his political supporters he fought this miscarriage of justice and was able to make it right (or at least better). Dreyfus was exonerated in 1906 after spending five years in the infamous Devils Island prison in French Guiana. He resumed his military career and he and his family served his country as loyal French Jews during World War I.

World War II presented a much greater challenge still. Leading up to the war, anti-Semitism reached a fever pitch, with deadly consequences. The Vichy government of France cooperated with the Nazis and deported 76,000 Jews (nearly 25% of the Jewish population of France) to death camps.

The Jews of France bore an obscenely disproportionate percentage of the 550,000 total French casualties (25% of Jews vs. 1.3% for the country as a whole died as a result of World War II; Germany had an overall casualty rate of 10%). The Holocaust claimed a staggering 6 million Jews. Jewish world population in 2015 is still below its pre-war level.

After World War II the Jewish population of France increased with immigration of French citizens from the French colonies in North Africa: Morocco, Algeria, and Tunisia.  As a result, the Jewish population of France today is approximately 500,000. 

But the horrible calamity of World War II—with its 60 million to 80 million war dead overall--did not manage to destroy the Enlightenment project. After World War II, the Enlightenment project in Western Europe has been consolidated. All countries in Western Europe have working liberal democracies. Jewish citizens of all these countries have helped with this consolidation…this picking up of the pieces from World War II. In the United States, too, huge strides have been made in the realization of the Enlightenment promise since the end of World War II. In the United Sates Jews played a particularly instrumental role in the civil rights struggle in the South, and with implementation of Lyndon Johnson’s Great Society programs. The promise of the Enlightenment in France, Western Europe generally, and the United States is stronger than ever; the reasons for French Jews to stand by the promise made by the Grand Sanhedrin that “The Israelite will consider the land of his birth or adoption as his fatherland, and shall love and defend it when called upon,” are stronger than ever.

The creation of Israel in 1948, and its subsequent expansion in 1967 did not change this. The creation of Israel did not suddenly weaken the citizenship rights and commitments of French Jews to France or American Jews to America; it did not reinstate the diaspora in Western Europe and America. After the creation of Israel, Jews in France continue to be French and Jewish; Jews in America continue be American and Jewish.

It does not mean that these countries are post anti-Semitic utopias. Challenges remain and will always remain as for any minority. These challenges must be met. Netanyahu has material to work with when he attempts to persuade French Jews to abandon their Enlightenment promise to France and to pick up their bags and move to fortress Israel. Take, for example, the Kantor Center for the Study of contemporary European Jewry’s annual report on world-wide anti-Semitism. The Kantor Center focuses on “violent” incidents—although their report does not provide incident reports and the criteria they use are not clearly explained. They say that “violent incidents” in France increased from 141 (2013) to 164 (2014).  The total number of “anti-Semitic incidents” as reported by CRIF (conseils representatives des institutiones juives de France) (again no clear definition or incident reports) doubled from 423 to 851. These are numbers to be very concerned with.

Yet, the Kantor report attributes last summer’s Gaza war as the primary cause for the increase in this year’s statistics. This seems correct and is understandable when Israel’s prime minister purports to represent and speak for—and thus implicates—French Jews and American Jews as Israel assaults Gaza. There is, in fact, no substantial evidence that world-wide anti-Semitism is on the rise world wide. See, e.g. this BBC report from 8/21/14.

In his Berkeley lecture, Rabbi Dahan recounted the terrible tally of recent attacks against Jews in Europe, primarily by adherents of Islam who (whatever anti-Semitic motivations they may have) are frustrated with the utter lack of commitment by the Israeli government to work for progress in resolving the conflict between Israel and the Palestinians: the bombing of a synagogue on rue Copernic in 1980, the bombing of a restaurant in 1982 on Rue de Roisiers, the gruesome kidnapping and torture death of Ilan Halimi in 2006, the murder of three school children and their teacher in Touluse in 2012, the shooting of three people at a Jewish museum in Belgium last May, the rape and robbery incident in Creteil (a suburb of Paris) last December, and the attacks on Charlie Hebdoe and a kosher supermarket (the Hypercacher) in January 2015.

“You can understand that a lot of communities are afraid,” said Dahan.

We’ve heard that 7,000 French Jews emigrated to Israel in 2014. Rabbi Dahan described how, on a recent flight from Marseilles to Tel Aviv, he met 20 religious families making Aliyah (emigrating to Israel). But we don’t hear reliable statistics of what happens to these people; how long they stay, what they do. “Many are also coming back,” said Dahan.

Dahan lamented that a predominant portion of French Jews who emigrate are religiously involved in French Judaism and that it’s those who are most involved, the largest donors, who leave. It presents a challenge for French Jewish communities.

Statistics indicate that French Jews tend to be secular like the French in general. Only 15% of French Jews attend synagogue. Seventy-five percent of Jewish school age children attend public schools. The majority of French Jews do not wear traditional religious clothing; they have no particular reason to shop at the Hypercacher.

Rabbi Dahan feels strongly that French Jews should not leave because they are afraid. “For Jews to leave France because they are afraid is bad,” he said. It’s giving in to terrorism. If individual Jews want to emigrate to Israel because they want to live a religious life, good for them. But Jews should not heed Netanyahu’s siren song—or abandon their citizenship commitment to help make France a better place—because they are afraid.  

For the past 15 years, ever since the rise of Islamist violence against Jews in France, the French government has gone to considerable lengths to protect its Jewish community. According to Dahan, since the Charlie Hebdo/Hypercacher attacks, the French government has been spending €1 million each day for security at Jewish schools and community centers throughout France. This is not like the 1930’s when state governments in Europe supported anti-Semitism. Just this week French Prime Minister Manuel Valls pledged to finance a plan to fight racism and anti-Semitism in France. The French government is working to keep its Enlightenment promise. French Jews should keep their citizenship commitment to fight to make France the best it can be.

Japanese Americans did not abandon the United States and return to Japan after the travesty of the Japanese-American internment during World War II. They remained loyal citizens of the country and subsequently fought for their rights. Fighting for your rights as a minority is not always pleasant and you can get hurt. But it’s something that has to be done, and the post-enlightenment liberal democratic state provides tools and opportunity to do so. The proper response of French Jews (or American Jews) to unfriendly looks on the street, political discrimination, or political violence is the same: it is not to run meekly to fortress Israel; the correct response is to stand up proud and claim your rights as a French Jew.

It’s not exactly how the Grand Rabbi of Aix-en-Provence put it, but I think this was the essence of his message.

Friday, April 10, 2015

The Supercilious Smirk



Supercilious Merriam Webster: 1) Coolly and patronizingly haughty;  2) The proud and unpleasant attitude of people who think that they are better or more important than other people.

It's what makes Bill Maher not likable, even if you agree with his politics; it's what makes Ted Cruz unelectable as President, regardless of his politics.

Bill Maher genuinely thinks he's right on everything. He thinks he is very important and deserves all that money that allowed him to donate $1 million to the Obama PAC, or to offer  $1 million to Elizabeth Warren on TV.  But guess what? He's not right all the time. And he's not always as funny or as understanding of the world as his smirk would suggest. 

Ted Cruz's smirk comes from another place: he knows he's talking trash when he says global warming does not exist, or that we should abolish the Internal Revenue Service; but he thinks he's so good at spinning his yarn that truth or falsity don't matter. It's a smirk borne of a prankster's guilty conscience. He feels invincible because the Liberty University crowd doesn't notice or care, and he feels smug in his confidence that he can run circles around the San Francisco crowd that is driven crazy by what he says. And he's not entirely wrong.  He was a debating champion at Princeton. But the smirk gives him away.

Interesting tidbit: Liberty University (VA), a Christian College founded by Jerry Falwell and where Cruz announced his run for the Presidency, forced students to attend the event under threat of $10 fines.  

Thursday, April 9, 2015

The Ayatollah's Twitter Feed: To Be Taken with a Huge Grain of Salt

Khamenei and Hussain Al-Montazeri, one of the good guys
of the Iranian Revolution (1978 photo) 

Sayedd Ali Khamenei, the seventy-five year old cleric and "Supreme Leader" of the Islamic Republic of Iran speaks Persian, Arabic, and Azerbaijani.  He has translated several books from Arabic into Persian and he has analyzed Persian poetry. With trivial exceptions--I heard the other day that he once was in North Korea--he has never been out of the country. He does not speak English. He is not savvy to U.S. or Western European internal politics.

Nevertheless, since 2009 there exists an English language Twitter account in Khamenei's name. The account uses the Twitter handle "Khamenei_ir"and it sports a handsome avuncular picture of the cleric. It's a sophisticated effort. There are photos, videos, and many tweets a day that display a native command of the English language, and understanding of U.S. and Western politics. The feed knows where to push our buttons.  It has 115,000 followers. It frequently talks trash about "oppressed Americans", "Black lives matter", "Native lives matter," "what Jesus would do," Zionism, the Holocaust, and Israel.  This Twitter feed plainly is not written by Khamenei.

Not only is the Khameni_ir Twitter feed not written by Khamenei, it's equally plain that he does not pass on and approve all individual tweets; they are way too numerous and diverse in what they cover. The man has a life to lead.

Yet there is a fiction carried on by the Western press that all of these tweets reflect the considered opinion of the Supreme Leader and that they are the sovereign voice of Iran. See, e.g., Michael Rubin, David Frum, The Washington Post, Hunter Walker, the Washington Free Beacon.

Take this article in The Guardian from last November:
Iran’s supreme leader has stepped into the debate over police violence and race in America, likening police shootings of black people in Ferguson and elsewhere to the Palestinian struggle in Gaza in a series of tweets using the hashtag #BlackLivesMatter....  In his latest outpouring, Khamenei seeks to highlight what he sees as the hypocrisy of the US at Christmas by suggesting a link between Jesus suffering for the oppressed, and official oppression of protesters in Ferguson. ....When it comes to domestic US affairs, Khamenei is quite the regular commentator. In 2011, when Occupy protests were erupting across America, he predicted the movement would bring down the entire capitalist system. ... 
Khamenei’s English-language Twitter feed is unverified by the social media company. It is widely understood that the account is managed by the supreme leader’s personal office, though they too will neither confirm or deny it.  Its existence casts a sliver of light into the thinking of the man who has wielded ultimate power in Iran for the past 25 years, .... The Twitter feed also acts as a megaphone for official Iranian policy, with regular denunciations of the Israeli government and Zionism.
Take Nicholas Kristof of the New York Times, tweeting this morning:
Iran's supreme leader has issued a series of tweets that unfortunately make it harder to sell an Iran deal in the US twitter.com/khamenei_ir/st… 
This is pure fantasy, of course. Khamenei has not "issued a series of tweets"--or at least Kristof has no clue whether Khamenei had any involvment with these tweets. Some office in Iran--perhaps akin to The Voice of America, perhaps something closer to the "Supreme Leader's personal office"--issued these tweets.  Kristof and we have no clue as to what's behind them.

Surely there is a story to be written about the creation of the Khamenei_ir Twitter feed: who within the government controls this feed, who created it, who maintains it how much oversight is there and by whom? What stock, if any, should we put in these tweets as reflective of official Iranian policy? Is this run by hardliners in the government or liberals?  Is this run by a bunch of Twitter savvy youths with a long leash? Which, if any, tweets are discussed before posting on Khamenei_ir and with whom?  Are the tweets that Kristof refers us to this morning generated by hardliners in Iran opposed to the deal? Were they discussed with and approved by Khamenei?

After looking for a morning on the internet I have found no such story--only the mindlessly repeated fiction that every tweet is the solemn word of the Supreme Leader and official policy of Iran. No one analyzing U.S. policy (in their right mind) would treat what is said on The Voice of America in that manner.

Last November Khamenei_ir posted a "9-Point Plan to Destroy Israel." It's certain that this tweet was  not created or posted by Khamenei himself.  The question is was he consulted? Did he authorize the tweet?  This is not a question that occurred, however, to Stuart Winer at the Times of Israel who blithely adopted the fiction that "Iranian Supreme Leader Ayatollah Ali Khamenei called over the weekend for the destruction of Israel." Of course, this fiction serves the interests of forces in Israel who want to portray Khamenei and official Iranian policy as anti-semitic and crazy.  So why should they look at questions that might distract from that message?

It doesn't mean we shouldn't.

It's not like the Israeli intelligence agencies don't have an understanding of how this Twitter feed works. Surely they must. Not that we'd hear about it from Netanyahu who is fond of the crazy stuff. And it's not like the New York Times doesn't have the ability to track down and write a story that would provide some context for this Khamenei_ir Twitter feed, and what we should take away from the crazy things that are said on it. So far no one in the media appears to have chosen to research and write that story. It's easier and much more fun to take every last tweet as the literal word of the Supreme Leader and the definitive expression of Iran's sovereign policy. It helps to generate outrage...and outrage is the opiate of the masses. It sells copy.

As long as people continue not to care about what's behind this Twitter feed, or to make an effort to explain it to me, I'm going to take what is said on this Khamenei_ir with a huge grain of salt.


Wednesday, April 8, 2015

States Should Mandate the Universal Use of Police Body Cameras Now!

The murder of 50 year old Walter Scott
April 7, 2015
Approximately 300 black men are gunned down by police in the United States every year. It's way too many. It's tainted with racism. Frank Walton, who has been focusing on the issue of police violence on blacks for 30 years said: "91% of the people killed by Police in Chicago in 2012 were Black? 87% in New York? 100% in Saginaw and Rockford?" Nearly half were unarmed.

As a nation we make no effort to track statistics of what percentage of these killings are unjustified. We should. The FBI should be charged with tracking and publishing these statistics. We should do more.  Congress should charge the FBI to investigate every police shooting.  [Here is a crowd sourced effort to identify the total number of police killings/year] We employ about 47,000 people to provide airport screening--surely we can employ 1,500 to investigate police shootings to increase accountability.

On April 7, 2015 officer Michael T. Slager of North Charleston, South Carolina (pop. 100,000/47% black with a police force that is 80% white) murdered a 50 year old black man, Walter Scott.  Slager had made a routine traffic stop in broad daylight for a burned out taillight. Scott ran from the scene; he owed child support.  The officer attempted to subdue him with a stun gun, but that didn't work. Scott ran away, and officer Slager pulled his gun and shot at Scott eight times, killing him.

In case you have any question, no it's not o.k. for a police officer to shoot a suspect because he does not submit to an arrest: not unless the officer or a third person is in mortal danger. There is no justification--ever--to shoot an unarmed fleeing man in the back.

Slager supplied a false report, claiming that Scott had attempted to take his Taser ... that he was in fear of his life. He lied. He might have gotten away with it, like so many others (how many?), but for the video captured on a bystander's phone. In light of the video there is no doubt what happened: a murder. "He made a mistake," said the mayor in announcing the murder charge. Yes, a mistake like a guy who holds up a liquor store to steal cigarettes and blows away the store clerk.

There is doubt about the deterrence of the death penalty for homicides; there is doubt about the efficacy of long prison terms to deter crimes. There is no doubt that the presence of cameras deter police abuses. Let's use them.

The White House has urged local police forces to increase the use of body cameras on police, to be turned on with every encounter. To date no state has legislation that requires the use of cameras to document encounters, although legislation is pending in Iowa. There should be firm strict liability penalties for "equipment malfunctions" or for "forgetting" to activate the cameras.

Police violence on blacks is a matter of national urgency, but Congress may be prohibited from regulating local police forces directly (U.S. v. Lopez invalidated the gun-free schools Act).  Nevertheless, Congress should get involved to encourage States to act; Congress should do what it can to mandate the use of police body cameras, and to do a much better job in gathering and publishing data.

Cameras, information, and transparency deter bad conduct.

In California, the penalty for a police officer filing a false report is punishable under Penal Code Section 118.1. ["Every peace officer who files any report ... regarding the commission of any crime ..., if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false, ... is guilty of filing a false report punishable by imprisonment in the county jail for up to one year, or in the state prison for one, two, or three years."]  Such provisions should be vigorously enforced through routine, transparent investigations in every state and in every jurisdiction. This needs to be a priority.

Having fair-minded police forces with integrity is hugely important. We must do better.  Universal use of body cameras, vigorous prosecution of perjury by police officers, and better keeping of statistics is a good place to start.

How do we get our legislatures to act?


Monday, April 6, 2015

The Iran Nuclear Deal Framework: All Upside and no Downside Risk


Tom Friedman scored a 46 minute interview with President Obama in the Oval Office on Saturday, April 4, 2015.  The questioning is good: respectful and designed to permit Obama to make his case on why we should all support this framework for a nuclear deal with Iran. Obama rises to the occasion. He provides a deliberative exposition of his policy like we'd like to see more of.  [It would have been nice to see something like this on the health care legislation for example]  It's our President unfiltered by handlers. It's a demonstration of thoughtful competence that we should expect not just at the Presidential level, but at the Congressional level as well.  Competence matters.

Near the end of this interview[@44m55sec] Obama succinctly lays out what he feels to be the key U.S. interest in the region today.
The one thing I always tell folks in the region, whatever has happened in the past, at this point the U.S.'s core interests in the region are not oil [or] territorial strategic concerns; our core interests are that everybody is living in peace, that it is orderly, that our allies are not being attacked, that children are not having barrel bombs dropped on them, that massive displacements are not taking place. Our interests in this sense are really just making sure that the region is working, and if it's working well, then we'll do fine. That's going to be a big project, given what's taken place, but this [nuclear deal] is at least one place to start. 
This is a positive vision. Obama is not suggesting to proceed with this nuclear deal with Iran because we are cowering in fear.  No, Obama is acting for positive reasons: because the deal will potentially help to stabilize the region.

In 2003 when we invaded Iraq we acted from fear. Or at least fear is what we were sold. Although the risk of Iraq having weapons of mass destruction was slight, said Dick Cheney, George Bush and the groundswell of support in the press and professional commentariat, the potential damage of such weapons of mass destruction was so devastating that we could not afford not to act. Meanwhile the cost of war (a short inexpensive war) and the pay-off (a democratic stable regime that would magically sprout) were both oversold. We greatly misread both the risks presented (there were no weapons of mass destruction) and the potential benefits and costs of war (the war was hugely expensive, long, and the political situation was worse on account of our actions, not better). We saw no up side and much downside risk was realized.

The Iran nuclear deal also presents risk. But the risk of proceeding in this case has no down side. There is only upside risk. There is hope that by making this deal, the Iranian regime will moderate: that after 37 years they will finally begin to engage the world in a more positive manner; that outside investment in Iran will start a virtuous cycle; that the Iranian regime will become more responsive to its people; that as Iran sees the benefits of engaging with the world, the regime will recognize that it can become a regional power without supporting proxy wars in Syria, Lebanon, and Yemen; that the regime will come to recognize that it can be a regional power and gain influence without being a mortal enemy of the Sunni states, or Israel; that the regime will manage sufficient self-confidence to loosen up.

The risk, of course, is that all of these hopes will be dashed, that we are being naive. But Obama argues--and he seems correct--implementing this deal comes with no downside risk. The deal will not enable Iran to get closer to having a nuclear weapon (they will be much farther away with this deal than where they presently are); the risk does not include a weakening of the relative power and influence of the U.S., or the Sunni states, or Israel.  The U.S. will maintain all military options; the U.S. will continue to assure that Israel maintains a qualitative military edge in the region. The U.S. will continue to act as a protector of its Sunni ally states, and of Israel.  The only party militarily weakened as a result of this deal will be Iran--they will give up their ability to produce nuclear weapons for at least 15 years.

Even if we believe the Iranian's can't be trusted and that they are irrevocably committed to their ideological opposition to the West, our Sunni state allies, and Israel--as Netanyahu believes--this is still the right deal.  None of the alternatives--(1) maintaining the status quo, (2) continuing and increasing sanctions, or (3) possible military action--would make us any safer.  None of these alternatives lower risk. Walking away from this deal will leave Iran approximately three months away from obtaining a bomb according to nuclear experts (and Netanyahu). Increasing sanctions or military action would empower hardliners in Iran. "See, we have no alternative but to become a nuclear power to assert our interests," they would argue. Sanction might slow progress towards Iran's goal of building a nuclear bomb, but sanctions cannot prevent the development of a bomb--as we saw with North Korea. Similarly, military action could set the program back a few months, but it cannot prevent Iran from developing a weapon.  The status quo, increased sanctions, and war all come with significant downside risk.  On the other hand, the nuclear deal that is being finalized now will prevent Iran from obtaining a bomb for 15 years, and will result in a much enhanced capacity for the international community to monitor and to detect any potential violations by the Iranians.  All upside, no downside.

Netanyahu and his Republican supporters in Congress make the argument that there is risk that this is not the best possible deal that could be obtained. That is backseat driving. A bird in the hand is worth two in the bush, we say. Well, abandoning the hard-won framework of Lausanne will not result in a deal that is twice as good in a few months, or years.  Abandoning the framework simply means we'll come away empty handed.  On the other hand, there is a chance that by completing this deal and moving forward with normalizing relations with Iran, we will accomplish some positive things. The only risk is that the world community will look foolish to have gotten its hopes up for peace and more stability. That's a risk well worth taking.




Friday, April 3, 2015

Best Wishes for a Meaningful Easter and Passover



Today is full moon, the 15th day of the month of Nisan. Werewolves are about; lovers swoon; rusalkas sing plaintively.  It's the date set by the sages for Passover. It's also the Friday preceding the first Sunday following the first full moon after the vernal equinox, which is the date set by the Christian Church at the Council of Nicaea for Easter. 

Although the stories of Passover and Easter overlap--the Last Supper being a Passover Seder--the celebrations are tied to different calendars and so they dance around each other, roughly from late March to late April on our Gregorian calendar.  The full moon keeps them in close orbit. 

These are spring-holidays, a time of renewal and re-birth. Eggs show up as lusty fertility symbols on the Seder plate and nestled in with chocolate bunnies in garden baskets.  

Passover tells how "My father was a fugitive Aramean" who travelled to Egypt, where he and his people became enslaved, and how God redeemed this tribe and brought them out of Egypt, out of slavery.  The people followed Moses, destined to lead an exemplary communal life in a land of milk and honey. The people failed. They were expelled from the land like Adam and Eve from paradise.  The Passover holiday ends with a reading of Isaiah 10:32-12:6, a messianic vision of a future earthly kingdom where the lamb and the leopard will lie down with the kid, the calf and the lion and the fatling together, and where a little child will lead them into a new Paradise. It is an earthbound tradition, full of problematic violence and human failings.

Easter starts with Passover and transforms Jesus into the ultimate sacrificial lamb: the lamb of God who takes away the sins of the world.  Christ was crucified, buried, and resurrected. It is a tradition that is other-worldly, full of problematic violence and human failings.   

Neither tradition has managed to make the world right. We keep trying. 

This week we'll celebrate because, despite all, these traditions continue to speak to our human condition. They provide a reference point. A literary font. Inspiration. They allow us to stay connected with the struggles, hopes, and visions of our forefathers. They provide a jumping off point for our own struggles. They mark the seasons and bind us with family and love. 

Wednesday, April 1, 2015

The Trials of Ehud Olmert: What Happened to Double Jeopardy?

Ehud Olmert in Jerusalem Court, March 30, 2015
Fox News photo
Ehud Olmert was back in the news this week.  On Monday he was convicted in a Jerusalem courtroom for unlawfully accepting money from a U.S. supporter over a period of years: the Talansky affair, for which he was previously tried and acquitted in 2012. Curiously, no one is talking of double jeopardy, the idea that you can't be put on trial twice for the same thing.  It appears that double jeopardy, a fundamental principal of western law dating back to the code of Hammurabi, may not have a solid footing in Israel. Perhaps they've become too enamoured of military justice.  But I anticipate that double jeopardy will be a key issue on appeal of Olmert's re-trial and conviction in the Talansky Affair.  

Olmert and the Peace Process

Olmert became Israel's acting Prime Minister on January 4, 2006, the day Ariel Sharon slipped into a coma and away from the Israeli political scene. During his three year tenure as Prime Minister and head of Kadima, Olmert came closer than any other post-1967 leader to accepting a two-state formula. Yet, by the time he made his proposal in the fall of 2008, he was politically dead. The peace that Olmert offered was stillborn, entangled by personal corruption charges against him.

Here is Noam Sheizaf, writing in May 2014: 
Olmert was indeed the prime minister who came closest to adopting a full two-state formula, in practice, rather than as lip service. In September 2008 he presented Mahmoud Abbas with the most far-reaching map drawn by an Israeli prime minister: 94 percent of the West Bank and Gaza were to be made into the Palestinian state, with nearly 1:1 land swaps on the remaining territory. But Olmert was already history due to his legal troubles. The Bush administration recommended Abbas not sign, as did Tzipi Livni, who was certain she was about to become the next prime minister. Olmert himself used Ehud Barak’s questionable strategy from the failed Camp David summit by trying to force Abbas with threats and promises into signing on the spot on his balcony in Jerusalem. Abbas wanted to take the maps back to his team, Olmert refused, and pretty soon all that remained was another story in the Israeli myth of “Palestinian rejectionism.”

Olmert and Corruption Charges

Since the 1980's Olmert has been plagued by a long string of corruption allegations, investigations,  and indictments.  The following list is not exhaustive: 
  1. In March 2006 the state comptroller investigated allegations that Olmer purchased his home in Jerusalem below fair market value ($300,000 on a $1.2 million purchase). A criminal investigation on this purchase was launched in September 2007--and closed due to lack of evidence in 2009.  
  2. In January 2007 the State Prosecutor ordered a criminal investigation into Olmert on allegations that Olmert improperly attempted to stear the sale of a controlling interest of Leumi Bank (partially state owned) to a friend.  This investigation was closed in December 2008 for lack of evidence.  
  3. In October 2009, the State Attorney General ordered a criminal investigation into whether Olmert had improperly appointed associates from the Likud party to various government posts. 
  4. The Talansky Affair:  In May 2008 the State Prosecutor initiated an investigation into payments Olmert had received from an American businessman, Richard Talansky, over a period of 15 years.  It was alleged that some of these funds were delivered as cash payments in envelopes, that Olmert maintained the funds in a safe in his law office, and that he may have spent some of the funds for personal use.  This resulted in an indictment in March 2009, and a "not guilty"verdict after a trial in 2012.  [More on this below]
  5. In November 2008 the State Attorney General filed an indictment against Olmert accusing him of profiting illegally from duplicate reimbursements from speaking engagements arranged by "Rishon Tours." This too resulted in a trial and a "not guilty" in 2012. 
  6. At the trial in 2012, Olmert was convicted of one count of breach of trust in connection with another real estate development deal. 
  7. A year ago, on March 31, 2014, Olmert was convicted of two counts of bribery to facilitate approvals for the Holyland Development in West Jerusalem.  He was sentenced to six years in prison, but appeals are still pending.
Holyland Development, Jerusalem (photo Nati Shohat) 

The "Talansky" Trial and Re-Trial 

On July 10, 2012 Olmert was acquitted of all charges in the Talansky affair. This is the matter that forced Olmert to resign as prime minister. After his acquittal, the prosecutors implicated one of Olmert's confidants, entered into a plea bargain with her, and then reasserted the same charges against Olmert with a new panel of judges (they don't have jury trials in Israel) based on this new evidence. On Monday, the prosecutors successfully obtained a conviction from a Jerusalem court. 

Here is the coverage from Daniel Estrin/AP:
Olmert, 69, was acquitted in 2012 of a series of charges that included accepting cash-stuffed envelopes from U.S. businessman Morris Talansky when Olmert was mayor of Jerusalem and a Cabinet minister. Olmert was found to have received about $600,000 from Talansky during his term as mayor, and additional amounts in cash during his term as a Cabinet minister, but a court did not find evidence the money had been used for unlawful personal reasons or illegal campaign financing.

Talansky, an Orthodox Jew from New York's Long Island, had testified the money was spent on expensive cigars, first-class travel and luxury hotels, while insisting he received nothing in return. 
The acquittal on the most serious charges at the time was seen as a major victory for Olmert, who denied being corrupt. He was convicted only on a lesser charge of breach of trust for steering job appointments and contracts to clients of a business partner, and it raised hopes for his political comeback. 
But Olmert's former office manager and confidant Shula Zaken later became a state's witness, offering diary entries and tape recordings of conversations with Olmert about illicitly receiving cash, leading to a retrial. In the recordings, Olmert is heard telling Zaken not to testify in the first trial so she would not incriminate him. 
On Monday, a panel of judges at the Jerusalem District Court ruled that Olmert had accepted $153,950 from Talansky when he was a Cabinet minister, with the money kept hidden in a safe by an Olmert aide. 
The judges concluded that Olmert gave Zaken part of that money in exchange for her loyalty, and used the money for his own personal use without reporting it according to law. They convicted him on a serious charge of illicitly receiving money, as well as charges of fraud and breach of trust. 
Olmert's lawyer, Eyal Rozovsky, said Olmert's legal team was "of course very disappointed" by the ruling and will likely appeal.

Double Jeopardy

Unless there is something missing from the reporting, it seems that Olmert was tried twice for the exact same charges arising out of the Talansky Affair.  The conviction on Monday followed an acquittal of those same charges in 2012. Double jeopardy, therefore, is likely to be a key issue on appeal.

The Greek gods in Aeschylus's Orestean Trilogy concluded that a trial was a better way to resolve conflict and achieve justice than blood feuds.  Here is an interesting description of the issue by George C. Thomas, a professor at Rutgers School of Law:
Part of the reason to replace the blood feud with a trial is to permit the cycle of revenge to end, to provide a final outcome to a dispute, and to create repose in the litigants. But to protect the finality of outcomes, there must exist a principle forbidding a retrial of the same case or the same issue. 
A double jeopardy principle has been part of Western legal systems for thousands of years. The Code of Hammurabi, for example, in the nineteenth century B.C.E. sought to prohibit judges from changing judgments (law 15). The Greek philosopher Demosthenes said in 355 B.C.E. that the "laws forbid the same man to be tried twice on the same issue." In the Roman Republic, an acquittal could not be appealed. St. Jerome in A.D. 391 interpreted a passage from the Old Testament to mean that not even God judges twice for the same act. 
The English common law principle that there should be one punishment for one crime first manifested itself during the confrontation between King Henry II and St. Thomas Becket that occurred between 1164 and 1170. ... [T]oday, over eight hundred years later, courts still condemn double punishment. 
...  This "universal maxim" led directly to the Fifth Amendment double jeopardy clause [in the U.S. Constitution], which ... provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
In 1957 in Greene v. U.S., the Supreme Court provided the following rationale of the rule: "The underlying idea... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."  We should note that the prohibition was not held to apply to state governments until 1969 (Benton v. Maryland).

The Olmert case illustrates another reason for the double jeopardy rule.  I have no idea of the merits of the various investigations undertaken against Olmert.  I do note that more than half of the investigations outlined above did not result in any type of conviction. It raises the possibility that some of these investigations were politically motivated. The pursuit of investigations for political motives is a form of corruption. Since the offices of police, prosecutor, and executive who make the difficult decisions whether, and how vigorously to pursue any investigation are all political actors, aligned with political interests, it is dangerous to provide such actors multiple bites at the apple--to maintain prosecutions even after an acquittal. Not only is it unfair to defendants; it fosters corruption.

Sheldon Adelson's pro-Netanyahu newspaper Israel Hayom touts the verdict on re-trial as "a badge of honor for the rule of law." I don't think so.  If we look back on all the various investigations and lawsuits against the Clintons during the Clinton Presidency, irrespective of merit, they were all heavily tainted with political motivations.  We do not want political actors to have more than one bite at the apple to prove wrongdoing by their political opponents. Prosecutors should not be able to present the same case to multiple panels of judges--as long as it takes to get a conviction. In this case, the "new evidence" against Olmert came from a plea bargain with an Olmert confidant--i.e. a bribe that shielded her from threatened prosecution in exchange for testimony.  This is an integral part of any justice system--but it's not the finest aspect of any justice system. I would not call this conviction a "badge of honor." A stain seems more accurate.

The Law of Double Jeopardy in Israel

In a book tracing the influence of Jewish law on American Constitutional amendments, Roberto  Aron proudly points to the Mishna (edited ca 200 CE) as an early source for the double jeopardy rule in the Fifth Amendment.  The present state of the law of double jeopardy in Israel, however, is not clear. 

At Cardozo law school they have a project (Versa) that translates important Israeli Supreme Court decisions into English. A search for "double jeopardy" brings up the case of Manning v. Attorney General (1993) CrimFH 532/93. It appears that the law of double jeopardy is not set forth in any statute in Israel, and no case has been decided that applied the rule.  In Manning the court discussed double jeopardy in the context of an extradition request.  Justice Goldberg, who delivered the opinion said that "Even though double jeopardy is not mentioned expressly in the Criminal Procedure law [and no case has been decided where a defendant made successful use of it] it is available to every accused in Israel." Justice Dorner, in a short concurring opinion said that the concept of double jeopardy "does not reflect a fundamental principle of our system." 

After this Olmert conviction we may find out.