Wednesday, October 29, 2014

More CA Election stuff: Still Yes on Prop 1

The Pacific Institute, a water policy research foundation located in Oakland, CA, has weighed in late with a curiously mealy mouthed report on California's Proposition 1: the 2014 California Water Bond Act. 

I recommended we vote "yes" on this 7.1 billion bond measure here
Prop 1: This is a bond measure to authorize the state to issue $7.5 billion in bonds (repaid over ~40 years) to finance new water storage (dams and replenishment of groundwater), regional water storage (flood protection, water supply, fish habitat), water recycling, and protection of watersheds, and improvement of water quality.  Most of the funds ($5.7 billion) must be spent on projects with matching funds from local districts and entities. We have a great need for water projects in the state. This is the kind of infrastructure spending the state should be doing. It provides jobs. It is wise in demanding matching funds from local entities.  It was placed on the ballot with near unanimous support from the legislature (Senate 37-0; Assembly 77-2).   YES.
Some have pushed back on this recommendation and I promised to take a further look.  

Calwatchdog.com, a conservative Sacramento based "journalism venture," cites the Pacific Institute Report as reason to vote against  Prop 1: "Are Benefits of Prop 1 being Oversold."  They don't make an express recommendation, but the implication is clear enough.  

The Pacific Institute report is available here

PI are noncommittal in their report, but it is negative in many respects. They give the impression that (a) they don't trust the political process, and (b) they would prefer a greater emphasis on conservation projects.  They surely are not wrong to mistrust the political process of how these funds will be spent. But so what--that's how we spend money unless we want to set up a politbureau central planning committee. See Francis Spufford's  Red Plenty for how that works out.  

I note that for a report issued to help voters, the report was issued rather late. The report was released on October 23, 2014 which is after some people were already voting through their mail-in ballots, and which has left little time for this report to circulate in a manner to have much of an effect on the election.  It is doubtful, in other words, how helpful this report will be to voters.  I can only imagine that the tardiness of this report cannot be entirely pleasing to the funders who supported it. 

There surely is a need and Propostion 1 provides money to address the need.  The PI report frames the issue in its executive summary: 

California faces serious and growing water challenges that will require expanded investment, changes in policy and institutions, and in some cases some fundamentally new technologies, policies, laws, and behaviors. In an attempt to address some of these issues and move the state out of decades of gridlock over water resource management, the California Legislature passed a series of water-related bills at the end of 2009, including an $11.14 billion water bond. As a result of the state’s economic downturn and due to fears the voters would reject it, the Legislature stalled putting the bond measure on the ballot until this year, when they negotiated a new version. 
On November 4th, 2014 voters will decide the fate of Proposition 1, which authorizes the sale of $7.12 billion in new general obligation bonds and the reallocation of an additional $425 million of previously authorized, but unissued, bonds (see Table ES-1 for a summary). If passed by the voters, Proposition 1 would be the fourth-largest water bond in California history, funding a wide range of water-related actions and infrastructure.
The report goes on to point out that there is no guarantee of how wisely this money will be spent.  Well, sure. Tell me something we don't know.  But as I mentioned before, I like the local matching funds aspect of this proposition.

The executive summary concludes as follows: 
Ultimately, the effectiveness of Proposition 1 funds in addressing California’s overall water problems will depend on how the funds, if passed by the voters, are actually allocated and spent. If Proposition 1 passes, the Institute recommends that the California Water Commission develop a rigorous, independent, and transparent process to evaluate and quantify the public benefits of proposed storage projects. We also recommend that decisions about the rest of the funds be made with a focus on meeting public and ecosystem needs for safe and reliable water, improvements in efficient use, and reducing the risks of future droughts and floods. 
If the California Water Commission identifies and supports good projects, bond funds can help move the state forward in the broader effort of designing, building, and managing a 21st century water system. But voters should not expect immediate relief from Proposition 1 for the impacts of the current drought; nor should they expect these funds to be the last investment that is needed for better institutions, smarter planning, and more effective water management strategies. It can be, at best, a down payment on our water future. 
There is also opposition to these bonds from small environmental groups who are afraid of new dams--although this bond measure doesn't commit anyone to build dams.  The PI analysis does not mention any environmental concerns. Jay Ziegler from the Nature Conservancy is not afraid of detrimental environmental impact:
“The cautionary note I would have is that whether your concerns are the adequacy of flows for fish, whether your concerns are there isn't enough here for the customers or there isn't enough here for agriculture – where do we start?” Ziegler asks. “If we don’t have this bond, not one of those issues, not one of California’s water challenges will get any better. If you don’t fund this, nothing gets better.”
Then there are those who oppose spending money in principle.  Money should be a non-factor.  Opponents point to the cost of the bonds at $360 million/year.  Although this is not chump change, this represents just two tenth of one percent of the State's annual budget of $156 billion.


 I'm Still "Yes" on Prop 1. 

The Emperor has no Clothes

There are a couple of truly remarkable pieces about Netanyahu in my Twitter feed this morning.

First, Geoffrey Goldberg at the Atlantic has an article about Netanyahu frustrations expressed by unnamed Obama officials: "The Crisis in Israeli-U.S. Relations is Officially Here."  It relates the choice words a series of unnamed Obama administration officials have had about Netanyahu--Goldberg keeps a running tally--including the following gem: 
"The other day I was talking to a senior Obama administration official about the foreign leader who seems to frustrate the White House and the State Department the most. “The thing about Bibi is, he’s a chickenshit,” this official said, referring to the Israeli prime minister, Benjamin Netanyahu, by his nickname. [...]
“The good thing about Netanyahu is that he’s scared to launch wars,” the official said, expanding the definition of what a chickenshit Israeli prime minister looks like. “The bad thing about him is that he won’t do anything to reach an accommodation with the Palestinians or with the Sunni Arab states. The only thing he’s interested in is protecting himself from political defeat. He’s not [Yitzhak] Rabin, he’s not [Ariel] Sharon, he’s certainly no [Menachem] Begin. He’s got no guts.”
Next, Peter Beinart piles on with the hashtag #chickenshit, with a link to Leah Rabin letters recently obtained by Haaretz.  What did Leah Rabin think of Bibi? "Leah Rabin, the late widow of assassinated premier Yitzhak Rabin, used words such as 'nightmare,' 'monstrosity,' 'corrupt' and 'liar' to describe Prime Minister Benjamin Netanyahu in letters she wrote over a decade ago that have recently been obtained by Haaretz," says Amir Oren in Haaretz. 

Here is the late (she died in 2000) Leah Rabin in her own words: 
"I hope, pray, that the days of this government are numbered. Benjamin Netanyahu is a corrupt individual, a contentious liar who is ruining everything that is good about our society. He is breaking it to bits, and in the future, we will have to rebuild it all over." 
Would it had been so.  

Beinart follows up with several blunt assessments made by past American (+Sarkozy) officials: "a liar" (Sarkozy); "ungrateful" (Robert Gates); "who the fuck does Bibi think he is" (Bill Clinton). Beinart points out that long before Obama barred Ya'alon (Israel Defense Minister) from the Whie House, James Baker did the same to Netanyahu. Finally, Beinart #chickenshit "Remember when Bibi went to a Jerry Falwell rally while Falwell was accusing Clinton of murder." The link is to a January 1998 article in the New York Times, hinting at the Clinton-Netanyahu-Arafat negotiations that would lead to the Wye River accords that October.

We know where that went.

And the assessment of damage done that was predicted by Leah Rabin--he will break it to bits and we will have to start all over--seems prescient.

The emperor has no clothes.



Monday, October 27, 2014

Keeping an Eye on Reuven Rivlin

Reuven Rivlin is to Israel what Pope Francis is to the Catholic Church: both are conservative representatives of problematic institutions who are making much needed progressive statements. Whether either of them will be able to effect real change remains to be seen.

Rivlin was elected President of Israel (a largely ceremonial post with a seven year term)  in June 2014. He is a one state guy who believes that Israel should annex the West Bank; he believes, as he must, that Palestinians and Jews should be able to live together.

Rivlin, it strikes me, is a man who realizes that distributing justice, economic privilege, and the rights of citizenship based on ethnic-majority status is a flimsy basis on which to establish a state. In the United States some of the descendants of white European settlers are still struggling to learn this lesson. In Israel, Jews were a minority when the state was established, they are a 75% majority today. But a one state solution will leave the population more or less down the middle. The logic of annexation, the logic of one state, demands that justice, economic privilege, and the rights of citizenship must not be distributed based on ethnic-majority status.

Reuven Rivlin, from what I see and hear, understands this principle.

Earlier this month, Rivlin teamed up with a Palestinian school boy from Jaffa to preach his message of equality and tolerance. The boy, George Amireh, had found success with his own video responding to bullying directed at him. Rivlin picked up on it, teamed up with the boy, and broadened the message and audience. [Click on the "CC" at bottom of video to activate subtitles]



Yesterday, Rivlin again made positive headlines by attending the commemoration of the massacre at Kafr Qassem. Kafr Qassem is an Arab village just north of Tel Aviv, nestled against the Green Line. Like much of Israel's Palestinian population, the village lived under military rule from 1949 to 1966. In 1956, at the outset of the Suez War, military commanders changed the curfew over Arab villages to commence at 5 p.m. (it had been 9 p.m.) Orders were given to shoot anyone violating the curfew. As villagers from Kafr Qassem returned from their fields that day, not yet having been alerted to the curfew change, Israeli para-military border units massacred 49 villagers, nearly half of them children.

For the past 57 years the village has commemorated this tragic event. Rivlin is the first Israeli president to attend the commemoration. He used his visit to make some very positive and much needed statements.

Dahlia Scheindlin at +972 Magazine reports:
"Fifty-eight years later, the president’s visit was a symbolic sign of brotherhood. He said things I have longed to hear, particularly after years of vitriol from Israeli-Jewish political leaders. 
  • "The State of Israel has recognized the crime committed here. And rightly, and justly, has apologized for it. I too, am here today to say a terrible crime was done here… We must understand what occurred here. We must educate future generations about this difficult chapter, and the lessons which we learn from it."
This paragraph is for all intents and purposes an apology. The president’s emphasis on teaching future generations is a change from earlier attempts to hide the state’s crimes. Rivlin’s vision is a step away from the lie of false purity, and calls on Israel to confront its deeds head on. He went on:
  • "I came here today, specifically during these difficult days to reach out my hand, in the belief that your hands are outstretched to me and to the Israeli Jewish public in turn. Friends. I hereby swear, in my name and that of all our descendants, that we will never act against the principle of equal rights, and we will never try and force someone from our land."
This statement pushes the bar from the “is” to the “ought;” it is, for once, a desirable vision for a way forward compared to the ills of the present.  Rivlin then said something rarely heard in Israel from the left or the right: he stated that this is also the homeland of Arab-Palestinians. In so doing, he addressed them not as a fifth column, newcomers or subjects, but as indigenous citizens and equals; as partners, not problems. In a nearly buried sentence, he made their identity part of the nation.
  • "The State of Israel is the national home of the Jewish people, who returned to their land after two millennia of exile. This was its very purpose.  However, the State of Israel will also always be the homeland of the Arab population…The Arab population of the State of Israel is not a marginal group in Israeli society. We are talking about a population which is part and parcel of this land, a distinct population, with a shared national identity and culture, which will always be a fundamental component of Israel society… [emphasis Scheindlin]."
And in a slapdown to the far-right, he legitimized the fact that they will not surrender their identity to embrace that of the people who conquered them:
  • "…The Jewish public must understand that the ambition of so many to live alongside a Zionist Arab minority, which proudly sings the Hatikvah (Israel’s national anthem), will not, and cannot be realized."
The president even acknowledged some of the most sensitive tensions among Arabs in Israel: their commiseration with Palestinians under Israeli military occupation, racism and the daily scourge of discrimination of resources and opportunities in their own country.
  • "I am aware that the establishment of the State of Israel was not the realization of a dream for the Arabs of this land. Many Israeli Arabs, forming part of the Palestinian people, feel the hurt and suffering of their brothers on the other side of the Green Line. Many of them experience not uncommon manifestations of racism and arrogance on the part of Jews. …We must state plainly — the Israeli Arab population has suffered for years from discrimination in budget allocation, education, infrastructure, and industrial and trade areas. This is another obstacle on the road to building trust between us. A barrier which we must overcome.
These statements are close to perfect-pitch in terms of bold moral leadership, with a vision of an Israel that I can support."
Scheindlin takes exception to Rivlin's adding a reference to the need for the Arab Population in Israel to oppose terrorism.  She finds this curious in light of the fact that there is very little terrorism among Israeli Palestinian citizens. "The implication that citizens of Israel are somehow linked to terror attacks by Palestinians under occupation ... is frankly absurd," she says. "It reinforces the idea that all Palestinians are the same – and all are terrorists." Scheindlin finds this particularly off-key in light of the 2100 killed by the IDF in Operation Protective Edge this past summer. By this logic, she observes correctly "the President should implore Jewish Israelis to condemn the killing of innocents in Gaza." And, of course, he should.

I, like Scheindlin, welcome this positive symbolism. Unlike Scheindlin, I don't criticize Rivlin for urging Palestinian Israelis to oppose terrorism. In light of Rivlin's willingness to extend citizenship to all Palestinians in the West Bank, the president--it's true--does not distinguish between Palestinian citizens of Israel (today) and Palestinians in the West Bank (citizens tomorrow). His challenge to oppose terrorism is directed at the entire Arab population within greater Israel--i.e. to Palestinians in the West Bank included.  It seems to me correct that there must be a popular movement among Palestinians to oppose terrorism if they are to embark jointly with Rivlin on a program of dignity, respect, and equal rights for everyone; this is a necessary pre-condition for one state to become a reality. Somehow, everyone will have to buy into this one state solution if it is to become a reality over this century.

Events have proven that a two state solution will not work. Similarly, Zionism, conceived as a state by and for the Jews, that privileges Jews over non-Jews in all aspects of life, will not work. Expelling non-Jews from the land to leave an ethnically pure state will not work. Palestinians and Jews need a vision to work towards. The dream of Israeli Jews and Israeli Palestinians (from the Jordan to the sea) working together to build institutions that protect and serve everyone, that don't systemically privilege one group over another in all aspects of life, and that find ways to preserve and protect both Jewish and Palestinian culture needs champions on the ground. Rivlin may be such a champion.

Rivlin is worth keeping an eye on, and he deserves our support.


Wednesday, October 22, 2014

Recommendations for California & San Francisco Election, November 4, 2014

For those of you not from California or San Francisco, you might find it interesting what goes on in Nancy Pelosi's Congressional District and what those San Francisco values are all about.

Here are my recommendations for the State of California proposition and City and County of San Francisco Measures on the November 4 ballot.

State Propositions:

Prop 1: This is a bond measure to authorize the state to issue $7.5 billion in bonds (repaid over ~40 years) to finance new water storage (dams and replenishment of groundwater), regional water storage (flood protection, water supply, fish habitat), water recycling, and protection of watersheds, and improvement of water quality.  Most of the funds ($5.7 billion) must be spent on projects with matching funds from local districts and entities. We have a great need for water projects in the state. This is the kind of infrastructure spending the state should be doing. It provides jobs. It is wise in demanding matching funds from local entities.  It was placed on the ballot with near unanimous support from the legislature (Senate 37-0; Assembly 77-2).   YES.

Prop 2:  This is a modest proposal to even out some of the state's notoriously volatile tax collection.  Because our tax revenues are heavily dependent on the state income tax, in boom years the state is awash in money; in recession years revenue falls off precipitously. This makes planning difficult.   This measure aims to set aside 1.5% of annual collections into a rainy day fund.  The discretion for the legislature and governor to dip into the rainy day fund is reduced. The total amount held in reserve is increased. It provides for some accelerated debt repayment.  This is a Legislative Constitutional Amendment and it passed unanimously in both the Senate and Assembly.    YES. 

Prop 45:  Should the state insurance commissioner regulate health insurance plans for small businesses and individual plans?  The insurance commissioner would be required to approve insurance rates for small business plans (less than 50 employees) and individual plans.  This would affect about 6 million Californians in such plans. Administration costs would be in the "low millions" of dollars according to the Legislative Analyst. Let's call it a dollar for everyone covered by small business and individual plans.  This cost is negligible.  It also provides for some additional employment.  I consider this a non-factor.  Main proponents are Dave Jones, the insurance commissioner, and a consumer watchdog organization.  Covered California [the state Obamacare plan] issued a report critical of prop 45: the report found the initiative, if passed, could disrupt the exchange’s work negotiating with health insurance companies, cause delays by allowing third-party challenges and risk having insurers leave the market. The LA Times and SF Chronicle editorial boards recommend no, primarily for those reasons. Health insurance companies are spending lots ($55 million to date?) to defeat the measure.  This tells me they don't like it; it doesn't really tell me much about the merits.  I'm voting "no." Let's give Covered California a couple of years to get going, and if we still need to regulate rates, let's craft a proposition that will take account of that effort.  NO. 

Prop 46: Raises cap on pain and suffering damages from $250,000 to $1.1 million, requires drug and alcohol testing of doctors, requires the Medical Board to discipline doctors found to be impaired, and requires hospitals to check databases designed to check abuse of prescription drugs.  To me this is  a broad change with consequences that are difficult for voters to assess. It expands the powers of a heavy handed bureaucracy.  I'd be open to raise the pain and suffering damage amounts some, but not by more than 400%. Based on my experience representing some doctors, the bureaucracy on doctor discipline can be heavy handed.    NO.

Prop 47:  This reduces sentencing for certain non-violent property and drug crimes. We have way too many people incarcerated in prisons and jails: ~2.5 million nationwide/136,000 in California.  The rate per 100,000 in CA is reported as 439 (which would suggest a rate closer to 160,000). This reflects a large increase in the prison population in the 1980's.  Reducing prison population back to historical levels, before the craziness of the "tough on crime" politics in the 80's and 90's is the right thing to do.   YES. 

Prop 48:  More Indian gaming stuff. Indian tribes, as we know, are semi-sovereign entities.  They get to do stuff on their land--like sell fireworks and run gambling casinos--the rest of us don't. Since tribal areas are the result of compacts between Indian tribes and the federal government, what Indian tribes can and can't do on their land goes back to federal law. Federal law permits recognized Indian tribes to run gambling casinos on Indian land--generally considered as reservation lands or lands held in trust by the U.S. for the benefit of an Indian tribe.  The "held in trust" part allows for some land not part of a reservation to be used as "Indian lands." Federal law generally prohibits gaming on land that was obtained and put in trust after October 17, 1988. This proposition would make an exception. The exception requires both federal blessing and state blessing.  Both the feds and the state--through AB 277 enacted last summer--have given their blessings. That's where we come in: this proposition asks whether we should scotch the deal?  Here's the deal: the Federal Government and the State approved a compact with the North Fork tribe (Madeira county) and the Wiyot tribe (Humboldt County) to develop a gambling casino on 305 acres near Fresno that they purchased in 2005. This is not on "Indian lands." The North Fork and Wiyot tribes would share the profits from the operation. The state would receive some revenues to off-set costs and to distribute to other Indian tribes. The Wiyot give up their right to develop a gambling casino on Indian land in Humboldt county. I'm voting "yes" because (a) this has been vetted and approved by the feds and the state; (b) it concentrates gambling in an area where it is more profitable and less environmentally harmful; (c) a no-vote doesn't mean "no gambling;" it may lead to the Wiyot, for example, to develop gaming in Humboldt county where it is environmentally harmful (I'm taking the governor's word on this); (d) there is state-wide benefit for the Indian community which remains disadvantaged.   YES.

San Francisco Ballot Measures

A. Transportation and Road Improvement. This is a $500 million bond measure to construct and improve streets, sidewalks, make infrastructure changes to increase MUNI reliability, and make other traffic changes. The Board of Supervisors voted 11-0 to place this on the ballot.  Let's continue to make our city better!  YES.

B. Adjusting Transportation Funding for Population Growth. This is a city charter amendment. The city charter requires a portion of the general fund to be paid over to Muni. This would increase that portion based on population growth. The measure would make an adjustment based on population growth over the past 10 years (resulting in an immediate transfer of $22 million to MUNI). Future increase would be about $1.5 million/year based on historical growth. The Supervisors were split on this 6-4.  SPUR points out that this proposed increase to the city’s general fund set-aside for Muni is not tied to available revenue, is not funded by a new revenue source, does not expire, and it is not connected to a measurable outcome.  I agree with them.  NO.

C. Renewal and Increase of Children's Fund. The City sets aside 3 cents for each $100 of assessed property value for a Children's Fund (CF). The CF is used to provide services for children under 18, including child care, health services, job training, social services, educations, recreational and cultural programs. The deposit in the fund for the current fiscal year is $49 million. However, this fund expires next June.  The city also has a separate public education enrichment fund ($77.1 million this fiscal year) which also expires next June. Measure C is a charter amendment: it would extend the CF for 26 years, increase the set aside fro 3 cents to 4 cents, extend the age group served to 24 years of age,  establish a children and family advisory council, and divide an existing rainy day fund (so 25% would be a School Reserve).  This measure had unanimous support from the Board of Supervisors. SPUR says the program currently serves 56,000 kids. Do it for the kids.  YES. 

D. Redevelopment Agency Employee Retirement Benefits. The SF Redevelopment Agency was a state agency dissolved along with all other Redevelopment Agencies in 2012. Approximately 50 former RDA employees are or will become employees of the city. This charter amendment would allow these employees to count their Redevelopment Agency time as if they had been city employees during their tenure with the RDA.  Supervisors approved this unanimously. It's the fair thing to do. YES. 

E. Tax on Sugar-Sweetened Beverages. Would add a tax of 2 cents per ounce on sugar sweetened drinks. This tax charged to distributors could add $35 million to $54 million/ year.  The money would be spent on various health programs. Supervisors were split 6-4 in favor. SPUR recommends 'yes.' This should lead to a reduction in the consumption of unhealthy sweetened drinks, and it will provide funds for public education and health services.  A virtuous cycle.  YES.

F. Pier 70 Height Limit (40' to 90'). This measure would increase the height limit from 40' to 90' for 28 acres of Port owned land adjacent to Pier 70. SPUR say the planned project "would add 1,000 to 2,000 units of housing, 30 percent of which will be affordable, and would open up this part of the waterfront to public access. The project sponsor has carefully considered the mix of uses for this special site and has engaged extensively with the community to decide what should go here. The plan’s focus on restoring historic buildings for cultural uses is not only appropriate for this area of the city but also thoughtful and creative."  YES. 

G. Additional Transfer Tax on Multi-Unit Residential Buildings (2-30 Units). Current transfer tax rates on multi-unit buildings are 2.5%. This proposes to raise the transfer tax up to 25% for multi-unit residential properties sold in less than 5 years after purchase.  SPUR says: "This measure attempts to address the recent rise in Ellis Act evictions, which allow owners of rent-controlled buildings to evict tenants and convert the property into ownership units." This strikes me as certain to lead to wasteful litigation, and way too heavy handed with a 25% penalty.  NO. 

H. Requiring Soccer Fields (at west end of GG Park) to Remain Grass. The park department wants to turn these fields to artificial grass and install lights for playing at night. My daughter played on those fields: artificial grass and lights is the correct solution. This is obnoxious.   NO.

I. Renovation of Playgrounds, Walking Trails, and Athletic Fields. This is intended to combat the abuse of measure 'H.' It gives the park department discretion to proceed with improvements that will double their anticipated usage--without interference from meddlers like the sponsors of Measure H.   YES.

J. Gradual Increase of Minimum Wage to $15/hr by 2018. Current minimum wage in San Francisco is $10.74/hr.  This measure would increase the rate in steps for anyone working in the city, including City employees and home support workers.  There are minor exceptions for workers under 18 working in an subsidized training or apprenticeship program, and employees over age 55 working for non-profitsthat provide social welfare services and whose positions are government subsidized.   The controller estimates this will add $56 million to city costs by 2018.  This received unanimous support from the Board of Supervisors.  I'm in favor. This would make the city more affordable for lower income workers, it would increase local spending in restaurants and other businesses, and we can afford it.  YES.

K. Goal to Increase Affordable Housing. This is a non-binding measure placed on the ballot by a unanimous Board of Supervisors. It reaffirms the mayor's commitment to built 30,000 additional housing units by 2020, with 40% set aside for affordable housing. It seems like the correct policy. YES. 

L.  Parking Policy. This was put on the ballot by voters who want the city to lower parking rates, not charge for parking on weekends, and not use flex parking rates to encourage higher turnover at meters.  This measure doesn't sound like the correct policy. The city needs to have all the tools available to manage a very tough parking situation in San Francisco, including encouraging people to use MUNI and not drive.  NO. 

Happy Voting!  



A Paradigm Shift from “Dividing the Land” to “Political Rights Within the Land:” Changing the Frame of Discussion on Israel

In the wake of my summary of the “debate” in the New York Times last week ("Should nations recognize a Palestinian state?") it occurred to me that there is something revealing and interesting about the range of opinion represented there. It is not what we’ve been accustomed to since 1993 (the beginning of Oslo). For more than 20 years, the frame of discussion has centered on the two-state solution. But as illustrated by that Times "debate," today the two-state solution is but a faint echo of its former self in discussions about peace in Israel/Palestine. The frame of the discussion has changed from a division of the land to a focus on what are the rights of citizens within the land.

The 20-plus year hegemony of the two-state-solution was helped in no small part by the fact that it allowed advocates to avoid a hard discussion about the exact nature of the rights of minorities within the two-state paradigm. What are the rights of the Palestinian minority within the Green Line (the pre-’67 borders)? What are the rights of Jewish settlers in the West Bank in a prospective Palestinian state? What is the exact nature of the sovereignty to be exercised by a putative Palestinian state? During endless discussions of the two-state solution these issues did not have to be resolved; they could be deferred until after the two states were formed. Netanyahu could wink to his supporters and say: "Yeah, if ever!" The collapse of the Oslo peace process, and the likely demise of a two-state-solution makes it harder for Netanyahu to get away with the wink to his supporters: since it is becoming increasingly likely that there won’t be two states, it is forcing a discussion of what the one state will look like.

This is what explains the novel range of views reflected in the panel assembled by the Times. What we find there are (1) a hard-Zionist one state solution--a Jewish Greater Israel (Caroline Glick, Avital Leibovich), (2) a solution (one state or two states) that is based on universal equal rights for all citizens (Omar Bargouti and Nadia Hijab), and (3) mere echoes of a much weakened and unconvincing two state solution (found in Nathan Thrall, Efraim Halevy, and Richard Ottoway). All of a sudden, the two-state solution is no longer center stage.

Phil Weiss at Mondoweiss refers to the hard-Zionist position articulated by Caroline Glick as a “wing-nut” position. But it strikes me this misses the point. Caroline Glick’s presence on this panel is not due to the Times giving a prominent platform to a “wing-nut” position; her presence on the panel is evidence of the fact that the hard-Zionist position (the nationalist settler position) has taken center stage in the discussion.

This reframing of the issue caused by the collapse of Oslo and the loss of credibility of a two-state-solution suddenly brings into very clear focus of what’s at stake. As long as the hard-Zionist position was allowed to remain mostly hidden and unarticulated under cover of the two-state solution, the policy choice was less stark. But the collapse of the two-state solution is forcing this position into the open. When clearly articulated like this, and offered as a mainstream position, the nationalist settler position gives one pause because it is not very attractive nor defensible in the court of world opinion. Suddenly it’s crystal clear what’s at stake. Once the hard-Zionist position takes center stage in the framing of the issue, the argument for universal equal rights for all citizens suddenly takes on importance and stature; a vaguely articulated two-state-solution suddenly seems like an unsatisfactory non-solution.

What’s missing from the panel in the Times “debate” is a clearly articulated intermediate position between Glick and Bargouti that has a hope of preserving some form of the Jewish state. Such positions exist. One possibility is the Hebrew Republic advocated by Bernard Avishai. What’s clear, however, is that the re-framing of the discussion in a post-Oslo Caroline Glick world means Liberal Zionists will no longer be able to hide behind a vague concept of an inarticulate two-state solution that allows Netanyahu to play along and wink to his settler supporters. Liberal Zionists will have to articulate and defend their concept of a Jewish state, and what rights and protections it will afford to non-Jews with a population that is 75% Jewish (at present within the green line), 60% Jewish if we include the West Bank, and less than 50% Jewish if we include all of greater Israel. And they will have to defend that vision against an invigorated narrative based on equal rights for all citizens regardless of ethnicity.



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.