Monday, December 29, 2014

Citizenfour: Should we fight to maintain a right of privacy, or should we follow Singapore?

I'm a fan of Laura Poitras's film "Citizenfour" (trailer here) about Edward Snowden and the revelations he made to Poitras and Glenn Greenwald laying bare the NSA's surveillance program on millions of Americans.  Despite the fact that we know the details by now, the film is gripping.  We may know what happened, but we still don't know what to do with these revelations. We are left with the sense of "Holy cow, what do we do now?" 

Shane Harris, in an article in Foreign Policy magazine, describes one possible response to these revelations, and that is to fully embrace this technology, ignore the privacy concerns, and grant a Big Brother oversight role to the government so it can prevent possible terrorist attacks and other social disruptions. That's what Singapore has done. 

In the U.S., Britain, and other Western countries, those in charge of gathering information to keep us safe are naturally expansionist in their view. They would like to adopt the Singapore model if they could. Here is Harris's description:
U.S. officials have come to see Singapore as a model for how they'd build an intelligence apparatus if privacy laws and a long tradition of civil liberties weren't standing in the way.... American spooks have traveled to Singapore to study the program firsthand. They are drawn not just to Singapore's embrace of mass surveillance but also to the country's curious mix of democracy and authoritarianism, in which a paternalistic government ensures people's basic needs -- housing, education, security -- in return for almost reverential deference. It is a law-and-order society, and the definition of "order" is all-encompassing.
... Across Singapore's national ministries and departments today, armies of civil servants use scenario-based planning and big-data analysis ... for a host of applications beyond fending off bombs.... They use it to plan procurement cycles and budgets, make economic forecasts, inform immigration policy, study housing markets, and develop education plans for Singaporean schoolchildren -- and they are looking to analyze Facebook posts, Twitter messages, and other social media in an attempt to "gauge the nation's mood" about everything from government social programs to the potential for civil unrest. 
In other words, Singapore has become a laboratory not only for testing how mass surveillance and big-data analysis might prevent terrorism, but for determining whether technology can be used to engineer a more harmonious society. ....
In Singapore, electronic surveillance of residents and visitors is pervasive and widely accepted. Surveillance starts in the home, where all internet traffic in Singapore is filtered, a senior Defense Ministry official told me (commercial and business traffic is not screened, the official said). Traffic is monitored primarily for two sources of prohibited content: porn and racist invective. .... [P]ost a comment or an article that the law deems racially offensive or inflammatory, and the police may come to your door. ....
Not only does the government keep a close eye on what its citizens write and say publicly, but it also has the legal authority to monitor all manner of electronic communications, including phone calls.... According to the civil rights watchdog Privacy International, "the government has wide discretionary powers … to conduct searches without warrants, as is normally required, if it determines that national security, public safety or order, or the public interest are at issue."
In the United States, our legal traditions and valuation of privacy do not permit such extensive warrantless surveillance like they tolerate in Singapore. We do not want the government to intrude into our business without probable cause of wrongdoing, and we don't want it to be too easy when they do.  

Still, there is often an awkward tolerance of rule-breaking by our security agencies--the CIA, the NSA, and the FBI.  Secret snooping, after all, is their business. For example, when we learned that President Bush had secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, Congress responded not with an uproar, but by loosening the restrictions of the Patriot Act.  When Snowden revealed that the NSA has been monitoring the emails, Facebook posts, text messages, telephone calls, bankcard transactions, and location of nearly all Americans, President Obama attempted to dismiss this warrantless surveillance as mere "meta-data" gathering. "No one is listening to your phone calls," said Obama--although it now seems they could do so at will and without accountability. When, prior to the Snowden revelations, Congress asked the head of the NSA General Keith Alexander whether the NSA had ever engaged in the mass surveillance of Americans he lied under oath. Similarly, when the head of national intelligence, general James Clapper, was pressed whether the government had gathered data on millions of Americans he lied and said "not wittingly." Several journalists who are critical of the film seem untroubled by the fact that these government officials are lying to Congress under oath. 

Michael Cohen in the The Daily Beast says "Americans have a right to know what their government is capable of doing and the potential for abuse; but they also have the need to know if their rights are in fact being violated." He seems wholly untroubled by the fact that Congress is being lied to, but criticizes the film for failing to explain that, so far,  we have no evidence that the government has misused the information it has gathered by blackmailing or threatening people, or by ruining their reputations. Well la-di-da. This rather misses the point: the violation of privacy and the threat posed consists in the very gathering of the information. The risk increases substantially when top administration officials are willing to lie to our elected representatives about what the government is capable of doing. It'swhat justifies the revelations and what made them necessary. The fact that Congress does not seem to mind much being lied to is of little consolation to us, the voting public who are being spied on. 

Cohen rightly criticizes Snowden for apparently sharing ongoing operational details of NSA surveillance in China with the South China Morning Post, and his (presumably) sharing top secret information with the Russians. How valuable such revelations may or may not have been to the Chinese and the Russians--who undoubtedly engage in the same activities--is difficult to gauge. All these issues will be important for a full moral accounting of Snowden's actions which is yet to be written. However, this film is fundamentally not about a moral accounting of Snowden's actions; the film is about the fact that the government is secretly snooping on millions of Americans and is lying about it to Congress, and what that might mean for our liberties in the long haul. By criticizing the film for not providing a full moral accounting of Snowden's actions, Cohen misses the key issue and the service this film provides.  For a similar criticism, see Fred Kaplan in Salon

For more than two centuries our privacy and 4th Amendment rights against unreasonable search and seizure have worked hand in hand with the fact that when we withdraw to the privacy of our homes and communities, government snooping has been very difficult. The internet of everything and the Big Brother capabilities of the modern surveillance state as practiced in Singapore, and to a lesser extend by the our NSA, have changed the game. We must change and adapt the rules or get used to Big Brother.

The New York Times reviewer A.O. Scott (read his review here) has rightly placed Citizenfour on his ten best list for 2014. Go see it. The issues it raises will be with us for a long time. 

Saturday, December 27, 2014

Obama's Cairo Speech--The Wages of Raising False Expectations

Early in his presidency, on June 9, 2009,  Barak Obama delivered a sweeping foreign policy speech  in Cairo, Egypt. It was a Rodney King "Why can't we all just get along" kind of speech. The Norwegians were so impressed they gave him the Nobel Peace Prize.  "Only very rarely has a person to the same extent as Obama captured the world's attention and given its people hope for a better future," said the Committee. "His diplomacy," they added, "is founded in the concept that those who are to lead the world must do so on the basis of values and attitudes that are shared by the majority of the world's population. ... The Committee endorses Obama's appeal that 'Now is the time for all of us to take our share of responsibility for a global response to global challenges.'"

Six years later, the Nobel Committee's choice is the subject of satire. There is widespread disappointment with the Obama administration. Our hopes that soared with Obama's campaign and early speeches have tumbled to earth. Faced with cruel reality, Obama has not managed to bring about meaningful change. In the Middle East our hopes have been dashed by the failed Arab Spring, by civil war in Syria, by the crushing of the Green Revolution in Iran, by the rise of the Islamic State, by the loss of all remaining illusions in Iraq, by the failure of the secular modernists (like El Baradei) in Egyptian elections, by the failure of the Muslim Brotherhood and the reassertion of military dictatorship in Egypt through Abdel Fattah El-Sisi, by anarchy in Libya, by the triumph of Netanyahu over Obama on the Israeli-Palestinian front, by continued occupation, settlement and hardening of ethnic rule in Israel. At home our hopes have been dashed, in part, by the failure to close Guantanamo, by the authorization of hundreds of extra-judicial drone strikes, by the expansion of electronic surveillance by the NSA, the CIA, and their foreign counterparts. Most of these failures and disappointments have had nothing to do with Obama. Nevertheless, by raising our hopes, our disappointments are linked to him, even if it's only in our mind.

Did Obama set himself up for failure? Here is a look back at a portion of the mirage that we (and the Nobel Committee) saw in 2009--a look back at Obama's Cairo speech.  Was it worthwhile? Was it naive? Was it counter-productive? What lessons can we draw from it moving forward?

A Vision of Universal Values

In his speech, Obama advocated strongly and unabashedly for a Western vision of universal human values.  Islam and the West are not incompatible, he said, because, after all, everybody "values tolerance and the dignity of all human beings."

In speaking of democracy, Obama said governments must "reflect the will of the people."
Each nation gives life to this principle in its own way, grounded in the traditions of its own people. America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn't steal from the people; the freedom to live as you choose. These are not just American ideas; they are human rights. And that is why we will support them everywhere.
Governments that protect these rights are ultimately more stable, successful and secure. Suppressing ideas never succeeds in making them go away. America respects the right of all peaceful and law-abiding voices to be heard around the world, even if we disagree with them. And we will welcome all elected, peaceful governments—provided they govern with respect for all their people. ... So no matter where it takes hold, government of the people and by the people sets a single standard for all who would hold power: You must maintain your power through consent, not coercion; you must respect the rights of minorities, and participate with a spirit of tolerance and compromise; you must place the interests of your people and the legitimate workings of the political process above your party. Without these ingredients, elections alone do not make true democracy.
On religion, Obama said that people everywhere should be "free to choose and live their faith based upon the persuasion of the mind and the heart and the soul." Without such freedom of conscience, religion cannot thrive.

Similarly, on women's rights, he said that women who are denied education are denied equality, and that "it is no coincidence that countries in which women are well educated are far more likely to be prosperous..... I do not believe that women must make the same choices as men in order to be equal, and I respect those women who choose to live their lives in traditional roles. But it should be their choice."

These are Western Enlightenment values we hold dear.  Good for Obama for advocating these values, even if it's clear that they are not, in fact, universally held.  Indeed the problem in the Middle East these days, is that too many do not value tolerance and the dignity of human beings in the way Obama advocated in his Cairo speech. Many governments around the globe do not honor the principle that government must be by and for the people, and too many do not honor and respect  freedom of conscience, let alone the freedom of citizens to express their conscience.

These values championed by Obama in Cairo are necessary ingredients for a modern democratic state. This we believe. These are values we in the West are willing to measure our actions by, even when we betray them, like in our invasion of Iraq, like at Abu Ghraib. It is advice we will continue to give, even when it falls on deaf ears.  And they are values by which we will continue to judge others and ourselves. The mistake Obama made, perhaps, was to present these Enlightenment values without sufficient acknowledgment that they are in fact not agreed upon by any government in the Middle East. [Is Tunisia presently a hopeful exception?]  Obama did say, "No system of government should be imposed (by) one nation on any other...," but he did not make clear enough that Enlightenment values must be entirely established by the individual nation states and that this is a very long term project.

False Promise of Bold Action

The real mistake of the speech is that it naively raised an expectation of bold concrete action which never came. Obama made an unequivocal promise to the world to close Guantanamo.  In this he failed.  He vaguely promised action on all aspects of his speech:  "words alone cannot meet the needs of our people," he said. "These needs will be met only if we act boldly in the years ahead."

On the Israeli-Palestnian front, especially, he raised unrealistically high expectations:
[T]he Palestinian people—Muslims and Christians—have suffered in pursuit of a homeland. For more than 60 years they've endured the pain of dislocation. Many wait in refugee camps in the West Bank, Gaza, and neighboring lands for a life of peace and security that they have never been able to lead. They endure the daily humiliations—large and small—that come with occupation. So let there be no doubt: The situation for the Palestinian people is intolerable. And America will not turn our backs on the legitimate Palestinian aspiration for dignity, opportunity, and a state of their own..... I intend to personally pursue this outcome with all the patience and dedication that the task requires. The obligations—the obligations that the parties have agreed to under the road map are clear. For peace to come, it is time for them—and all of us—to live up to our responsibilities.
Israelis must acknowledge that just as Israel's right to exist cannot be denied, neither can Palestine's. The United States does not accept the legitimacy of continued Israeli settlements. This construction violates previous agreements and undermines efforts to achieve peace. It is time for these settlements to stop. And Israel must also live up to its obligation to ensure that Palestinians can live and work and develop their society. Just as it devastates Palestinian families, the continuing humanitarian crisis in Gaza does not serve Israel's security; neither does the continuing lack of opportunity in the West Bank. Progress in the daily lives of the Palestinian people must be a critical part of a road to peace, and Israel must take concrete steps to enable such progress. .... It is time for us to act on what everyone knows to be true. 
This was hopelessly naive.  Obama should have known that the Netanyahu government had no intention of following the Oslo road map to peace. The strong reaction of Israel and its lobby in the United States was entirely foreseeable.  Netanyahu came to Washington in 2011 to give a speech to Congress and garnered 29 standing ovations.  Obama backed down and did nothing.  

An Acknowledgement of Wrongdoing

One of the purposes of the speech was to repair relations with the Muslim world after the invasion of Iraq, the invasion of Afghanistan, and the damage done by rendition, torture, and the pictures of Abu Ghraib. In this the speech was successful.  Obama acknowledged that Iraq was a war of choice--a mistake. He acknowledged that the events of 9/11/01 caused us to betray our traditions and values.  He announced that he has unequivocally prohibited the use of torture by the United States--and he did.  This was productive and useful.  

Obama's mistake was a failure to recognize and acknowledge the true challenges ahead, to raise false expectations, and to over-promise. Raising false expectations and making naive promises were self-inflicted wounds that came to haunt the Obama administration regardless of the reason for the subsequent failure to get things accomplished.  

Tuesday, December 23, 2014

The Fruits of Military Administration Without Representation in the West Bank

The Association of Civil Rights in Israel, established in 1972, deals with rights and civil liberties issues in Israel and the Occupied Territories. ACRI's mission statement makes a commitment "to promoting the universality of human rights and defending the human rights and civil liberties of all, regardless of religion, nationality, gender, ethnicity, political affiliation, sexual orientation, or socioeconomic background."

+972 Magazine draws our attention to a new ACRI report (October 2014) which explains in great detail the dual and discriminatory legal systems that apply in the West Bank. Based on this report, these people do good work.

Here they are on discrimination in free speech:
The basic right to freedom of expression is of utmost importance to Palestinians: lacking representation within the sovereign body that rules over them (the military commander) and without an opportunity to influence the decisions that determine their daily reality, voicing their protest is a central channel for them to realize their autonomy, as well as numerous other rights. However, from a legal and practical perspective, the freedom of expression of Palestinians in the West Bank is virtually nonexistent. Military laws define Palestinian vigils and demonstrations as illegal assemblies, army and police forces treat them as a threat, and the vast majority are violently dispersed by security forces, sometimes resulting in fatal consequences. On the other hand, the authorities' attitude toward demonstrations organized by Israelis in the territories exhibits an extensive acknowledgment of their freedom of expression and right to protest. Aside from the right to protest, military legislation further prohibits and restricts various other forms of expression that are permitted under Israeli law.
... and on planning and building:
In the realm of planning and building, there is a legislative and institutional separation between the planning systems for Israelis and Palestinians. This separation enables a policy that encourages construction in settlements while freezing it in Palestinian towns and villages. Israelis enjoy a significant representation of their interests in planning institutions, and they are full partners in planning procedures pertaining to them. The majority of West Bank settlements have detailed and updated outline plans, which facilitate the expansion of settlements and the issuance of building permits. By contrast, Palestinians are completely left out of the planning process and have no influence over planning procedures. Construction in most Palestinian villages is restricted by means of freezing the planning situation that was in place more than four decades ago, in a manner that does not enable building or development. The policy guiding planning enforcement and demolition of structures constructed without a permit is also far stricter with regards to the Palestinian population than the Israeli population.
... and on freedom of movement:
Freedom of movement, which is strictly protected in Israeli law, is an essential condition for the realization of most basic rights. In the West Bank, a person's ability to move freely is derived from this person's nationality. For more than a decade, movement restrictions have been imposed upon Palestinians residents through checkpoints, roadblocks, the Separation Barrier and movement prohibitions. These restrictions hinder their movement between different areas of the West Bank and within each area. Contrary to that, the movement of Israelis is permitted with almost no restrictions in most of the West Bank. Indeed, due to the significant improvement in the security situation, the situation of Palestinians in the West Bank has been alleviated in terms of freedom of movement in the past few years; yet their movement is still considerably restricted as compared to Israelis. Moreover, restrictions on passage between Gaza and the West Bank and on relocating to the West Bank violate the right of Palestinians to choose their place of residence and to realize their right to family life.
+972 also directs us to a short video that highlights some of the problems that result from a military administration without representation.  The last segment concerns Wadi Qana where 250 Palestinian families own land.  The military authorities declared the Wadi an environmentally protected zone and prohibit the planting of vegetables or olive trees.  It appears this was not accompanied by just compensation for taking of the land, and that the order is enforced in an effort to deny a livelihood to Palestinians, and enable nearby settlement.  But motives aside, the fact that the  the local Palestinians have no political representation in the military regime that established the environmental reserve--for 47 years now--is at the root of the problem.

Friday, December 12, 2014

Colbert and Wieseltier on the Importance of Thinking and "Truth."

This month marks a remarkable passing of two institutions.  One is the collapse of the The New Republic on December 5.  Following up on my earlier post, here is Ryan Lizza in the New Yorker with the inside scoop. The other is the final show of the Colbert Report on December 18. 

Leon Wieseltier was the literary editor at The New Republic from 1983 until December 4, 2014.  Stephen Colbert hosted the Colbert Report for the past nine years.  Here they are at the very top of their game during an interview on the Colbert Report on October 7, 2014.  It epitomizes what I loved best about he Colbert Report--it's smashing the envelope of conventional conversation in order to unearth unexpected nuggets of truth. Here Colbert succeeds spectacularly.  The exchange shows off Colbert at his best, and it shows why we should continue to follow Wieseltier wherever he goes next.
Colbert: It seems like people at the New Republic are folks that believe in thinking…

Wieseltier: We do, we do.

Colbert: Sell me on thinking …. Because I don’t have to think much anymore. I can just feel. And I can also just open my eyes and take the digital fire hose from my screen, and watch videos, and watch pictures of someone’s pie…. 
Wieseltier: And mistake that for thinking. Yes. … Here’s why you have to think.

Colbert: I’m not mistaking it for thinking, I prefer it over thinking.

Wieseltier: I understand why you would, but here’s the reason: a democratic society, an open society places an extraordinairy intellectual responsibility on ordinary men and women; because we are governed by what we think; we are governed by our opinions—so the content of our opinions and the qualities of our opinions, and the quality of the formation of our opinions, basically determines the character of our society. And that means that in a democracy and in an open society, a thoughtless citizen of a democracy is a delinquent citizen of a democracy. … 
Colbert: What about feeling?

Wieseltier: Human life is never going to suffer from too little feeling. We all feel all the time. We are mortal creatures, we have hearts. And the important thing is not to mistake our hearts for our minds. They do two different things. And if we were only hearts or only minds, we would be monsters. But we’re both. And the role of the mind is to actually question the assumptions of some of the dogmas and the prejudices of the heart. …. 
Colbert: But there is your gut. There is your mind—hey don’t do what you’re doing, we should do something different. Then there is your heart—Oh, is that how I feel about the things that you are doing. And then there is my gut that tells me this is right! …. 
Wieseltier: I agree with you completely, but a gut requires education. I believe in educated guts. The important thing is that we have reasons for our beliefs, and that we can articulate those reasons, and that we can defend them.

Colbert: Here’s a reason for my beliefs. They feel good. It feels good to think that when I die I will go to heaven. That feels good. It feels good to think that I am right. That feels good.

Wieseltier: But you know that it’s preposterous to think that because one feels something is the case, it is true.

Colbert: It’s not “true.” It’s “truthy,” which is greater than truth. It’s inassailable because my truth is based upon what I want to be true, rather than anything the facts can possibly support. Your “truth” requires work, mine requires merely a decision.

Wieseltier: I congratulate you for living in a world entirely of your own.
Here they are in their glory. And I mean this literally.

A Big Deal: Israel's Basic Law Proposal defining Israel as the Nation State of the Jewish People

“What will the nature of Israel be? A religious Jewish state? A state of all its citizens? A secular, democratic and Jewish state? It is a debate that will engage us for many, many years,” notes a recent article in the New York Times. Despite what many think, this question whether Israel is the nation state of the Jews—as opposed to the nation state of its citizens—remains an open question.

The issue was recently raised for discussion by the Israeli right when, on November 19, 2014, Netanyahu’s cabinet approved 14 principles for a new nation state bill that would enshrine the Jewish character of the state in the Basic Law. The question is also being raised by the Israeli left in the form of a proposed law that seeks to cement the status of Israel as a democratic and multi-cultural state. In light of the collapse of the governing coalition in Israel and the call for elections on March 17, 2015, it seems likely that further discussions of these bills will be deferred until after the election. However, if (as expected) Netanyahu emerges with a stronger governing coalition after the election, the effort to constitutionalize the Jewish character of the state will likely be taken up in the 20th Knesset. Anyone who cares about the character of the state that wields power in the name of Judaism should be paying attention.

Israel’s Basic Law: Founding to Bank Mizrahi Ruling 

On May 14, 1948 David Ben Gurion declared Israel an independent Jewish state, although to this day Israel’s “Jewish” character has not been enshrined in a constitution or in Israel’s Basic Law.  

Ben Gurion’s declaration promised that a constitution would be enacted by October 1, 1948. But this never happened. According to a biography of David Ben Gurion written by Shimon Perez and Shlomo Aronson, Ben Gurion strongly preferred to avoid the tricky issue of defining the ethnic nature of the state in black and white. In a protracted battle with Menachem Begin, who wanted to establish the Jewish nature of the state of Israel once and for all, Ben Gurion’s view of avoiding a constitution that would have defined Israel as a “Jewish State” prevailed at the time. The nation state bills currently before the Knesset, fueled in part by a loss of faith in a two-state solution for the West Bank and Gaza, are reviving this debate.

The first Knesset convened in January 1949 and commenced to legislate without a constitution.  The basic functions of the state, such as the make-up of the Knesset, terms of office, the courts, elections, the office of the President, etc., were established through the normal legislative process.  Some of these laws were designated "Basic Laws" with the idea that once they were all in place they would be gathered into a constitution. 

In 1992 the Knesset adopted a Basic Law of human dignity and liberty.  Significantly, the 1992 laws made reference to the aspirational statements in the declaration of independence of Israel as a Jewish and democratic state, and said that the Basic Law should be interpreted in accordance with those principles.  (See Amendment 1) The Israeli Supreme Court then, in what has been termed a constitutional revolution, declared the Basic Laws to be superior to all other laws: in the event of a conflict between a regular law and a Basic Law, the Basic Law would trump. As part of this “revolution,” the court also reserved for itself the prerogative to review all laws for consistency with the Basic Law.  See the 1995 Bank Mizrahi ruling. 

Through its Bank Mizrahi ruling, the Israeli Supreme Court imbued the Basic Law with the characteristics of a constitution, even though amendment of the Basic Law remains notoriously easy. It was substantial progress towards establishing Israel as a modern democratic state subject to the rule of law. 

The Positive Influence of Aharon Barak

How should the courts reconcile the tension between “Jewish” and “democratic” in the Basic Law?  Israel’s famous Supreme Court Justice Aharon Barak, leaned firmly towards resolving any such conflict in favor of “democratic.”  Jewish means democratic in Barak's view. “The state is Jewish not in a halachic-religious sense,” he said, “but in the sense that Jews have the right to immigrate to it, and their national experience is the experience of the state ([as] expressed, inter alia, in the language and the holidays).
“The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel's democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society, which grew from Jewish tradition and history.” 
Thus, in cases where democratic and Jewish truly conflict, said Barak, the judge must choose between them and he should do so “according to the views of the enlightened community in Israel.” Barak felt that the “enlightened views of the community” would provide a suitably objective test “which refers the judge to the full set of values which shape the character of the modern Israeli.”  Barak: Basic Law, Freedom of Occupation, p. 208.  

It’s important to recognize that this position outlined by Justice Barak is indeed a strongly liberal and activist view of the law.  However, in the absence of a constitution that provides for judicial review of legislation or that guarantees the equal rights of citizens, and with only weak and vague Basic Laws, it is a type of judicial activism that is absolutely essential if Israel is to be a liberal democracy subject to the rule of law. It is essential just like Marbury v. Madison (which established judicial review in the U.S.) was essential.

Conservative forces in Israel are pushing back against this rule of law model championed by Justice Barak.  For example, Hillel Neuer of the Shalem Center (which is partially funded by Sheldon Adelson) looks at the role of the court described by Justice Barak and he sees dangerous activism limiting the rights of the majority to pass laws as it sees fit, even if such laws may be profoundly undemocratic and discriminatory.  

The stakes could not be higher.

State Preference of Jews over Non-Jews

Although the “Jewish” character of the state was not enshrined in a constitution, nor in its Basic Law, and although Israel has made progress towards a modern democratic state governed by the rule of law (but not in the occupied territories), the laws of the state have nevertheless evolved in a discriminatory manner that has privileged Jews over all other citizens. This has occurred despite reference in the Basic Law to the universal democratic values that are mentioned in the declaration of independence (Israel “will foster the development of the country for the benefit of all its inhabitants; … ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”).

In 1950, the Knesset enacted a Law of Return, granting Jews everywhere the right to immigrate to Israel.  Although not a Basic Law, the law of return, of course, privileges Jews over non-Jewish citizens of the state. In all, the  Legal Center for Arab Minority Rights in Israel has compiled a list of more than 50 laws that expressly discriminate against the Palestinian minority in Israel.  Such discrimination covers all areas of life, from rights to political participation, access to land, education, state budget resources, to criminal procedures. Systematic discrimination by the state against Palestinians received a head start under marshal law that was applied to Palestinian citizens of Israel during the first 18 years of the state’s existence. It is perpetuated by Israeli identity cards that describe “Jewish” as a nationality—leaving non-Jewish citizens out in the cold.  It is exacerbated by the fact that the state opted to outsource the determination of who counts as a Jew to the "rabbis and politicians who adhere to a conservative, orthodox interpretation of Jewish tradition," says Yacov Yadgar in his recent article in the Journal of Religion and Society.  

The Proposed Nation State Law

 Here are the 14 principles for a new nation state bill that the Israeli cabinet approved on November 19.  

1. Objective
Defining the identity of the State of Israel as the nation state of the Jewish people, and anchoring the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles contained in the Declaration of the Establishment of the State of Israel.

2.  Founding principles:
A. The land of Israel is the historic homeland of the Jewish people and the birthplace of the State of Israel.
B. The State of Israel is the national home of the Jewish people, in which it fulfills its right to self-determination according to its cultural and historic heritage.
C. The right to the fulfillment of national self-determination within the State of Israel is unique to the Jewish people.
D. The State of Israel is a democratic state, established on the foundations of liberty, justice and peace in light of the vision of the prophets of Israel, and realizes the individual rights of all its citizens under law.

3.  The symbols of the state:
A. The anthem of the State is “Hatikvah.”
B. The flag of the State is white, with two light-blue stripes near its edges and a light-blue Star of David in its center.
C. The symbol of the State is the seven-armed candelabra, with olive branches on both its sides and the word “Israel” beneath.

4.  Return:
Every Jew has the right to immigrate to the land [Israel] and to receive the citizenship of the State of Israel under law.

5. Ingathering of the exiles and strengthening the ties to the Jewish people in the Diaspora:
The State shall act to gather in the exiles of Israel and to strengthen the affinity between Israel and the Jewish communities of the Diaspora.

6.  Aid to the Jewish people in distress:
The State shall act to give aid to members of the Jewish people who are in distress and captivity because of their Jewishness.

7. Heritage:
A. The State shall act to preserve the cultural and historic heritage and tradition of the Jewish people, and to cultivate and foster them in Israel and the Diaspora.
B. In all educational institutions serving the Jewish public in Israel the annals of the Jewish people, its heritage and tradition, shall be studied.
C. The State shall act to enable all residents of Israel, without regard to religion, race or nationality, to act to preserve their culture, heritage, language and identity.

8.  Official calendar:
The Hebrew calendar is the official calendar of the State.

9. Independence Day and memorial days:
A. Independence Day is the national holiday of the State.
B. Memorial Day for the Fallen in Israel’s Wars and Holocaust and Heroism Remembrance Day are the official memorial days of the State.

10.  Days of rest:
The established days of rest in the State of Israel are the Sabbath and the holidays of Israel, in which no employee shall be employed except under conditions set in law. Members of recognized [religious] groups shall be allowed to rest on their rest days and holidays.

11. Hebrew law:
A. Jewish law shall serve as a source of inspiration for the Knesset.
B. If a court faces a legal question that must be decided, and cannot find an answer in legislation, precedent or clear deduction, it shall decide the matter in light of the principles of liberty, justice, integrity and peace in the heritage of Israel.

12. Protection of holy places:
The holy places shall be secure from desecration, from any other harm, and from anything that may hinder free access of the religious to the places holy to them, or offend their sentiments toward those places.

13. Denial of rights:
The rights in the Basic Law shall not be denied except in a law that accords with the values of the State of Israel, that is intended for a fitting purpose and to an extent no greater than necessary, or according to such a law under the explicit authority contained within it.

14.  Rigidity
This Basic Law shall not be changed except by a Basic Law passed by a majority of members of Knesset.

A Profound Turn Away from Liberal and Democratic Values

Eugene Kontorovich over at Volokh Conspiracy claims these principles for a proposed nation state law are no big deal. “The nation state bills mostly constitutionalize the national anthem, symbols, holidays, and so forth. There is nothing racist, or even unusual, about having national or religious character reflected in constitutional commitments,” says Kontorovich. Horsefeathers!  The 14 principles for a nation state law approved by the cabinet represent a profound turn away from liberal democratic values towards an ethnocracy based on 2,500 year old values. Abandoning Enlightenment values and a modern liberal democratic state in favor of a Talmudic ethnocracy is a big deal—especially in the Middle East, we might say, where modern liberal democratic states are hard to come by.

In the context of discrimination that occurs in Israel against Palestinian citizens, to “constitutionalize” the identity of the state as a Jewish state and the nation state of the Jewish people, where the Jewish people, and nobody else, may fulfill their right to self-determination, is a big deal. It very dramatically shifts the state away from the vision outlined by Justice Barak, it removes the ability of the Supreme Court to nudge the country towards a vision of equality for all citizens, and it lays the groundwork for fully implementing an ethnocracy that privileges Jews over all others in perpetuity.

To constitutionalize that the symbols of the state will be Jewish religious symbols may not be a big deal to Kontorovich, but it will be a big deal to non-Jewish citizens. To constitutionalize a right of return for “every Jew” while the state refuses to grant even so much as a visa to the West Bank spouses of Palestinian Israeli citizens will not be acceptable to Palestinian Israeli citizens.

A state that actively works to promote immigration of one ethnic group, while actively working to exclude immigration from minority ethnic groups will not be acceptable to the minority.

A constitutional mandate that the state “act to preserve” (read fund) Jewish cultural heritage and  “act to enable” (read not fund) the heritage of other citizens will not sit well with the other citizens.

Constitutionally directing that courts must look to Israeli/Hebrew traditions to resolve open questions is to deprive Israeli courts of a tool they have used to interpret laws consistent with liberal democratic values. In light of Israeli court precedent, which often turn to the laws of other modern states for guidance, this is a profound change. It directs the court to look to 2,500 year old legal traditions and to ignore post Enlightenment traditions.

A change in language from the declaration of independence, which prominently called for the protection of all holy places for all religions, to protecting just the holy places of the Jewish state is ominous.


The proposed Basic Law to define Israel as the nation state of the Jewish people is a big deal. It would mark a dramatic change in law from the status quo.  Although it might not effect a large change in terms of how many conceive of the state now, or in terms of the ethnocratic facts on the ground, it would provide legal cover for a system that privileges Jews over all others in all aspects of life. It would severely hamper the Israeli Supreme Court to reverse this trend and nudge the country back towards a post-Enlightenment democratic state. 

Failure to stop this law would have far reaching consequences. 

Thursday, December 4, 2014

The Transition from Elite Policy Magazines to Policy Web Sites

There's a shakeup going on over at the The New Republic.  The venerable liberal culture and policy magazine, which has been published continuously since 1914, was purchased by Chris Hughes (one of the founders of Facebook) in 2012.  Today, its editor Franklin Foer, and culture writer Leon Wieseltier resigned.  They may be followed by additional staff.   

If this means anything to you, or if you are interested in a very good description of the lay of the land among Washington D.C. policy magazines and web sites in 2014, I highly recommend Ezra Klein's article at VOX, Even the Liberal New Republic Needs to Change.  Klein describes the transition underway from traditional elite (and low circulation) policy magazines to a more diverse and numerous group of web-sites (with larger readerships).  

"Something is being lost in the transition from policy magazines to policy web sites," says Klein, "and it's still an open question how much of it can be regained."

Wednesday, December 3, 2014

Ten Rules For Understanding the World

Our perception of the world is colored by our experience, by what we pay attention to, and by what we accept or reject.  

For the past 27 years I have paid myopic attention to statutes, contract and tort law as it relates to the construction industry. What this meant in practice was keeping track of ever-changing statutes, new cases, writing and thinking about particular questions and problems presented by clients.  With time this resulted in a deep and comprehensive understanding of a very narrow field--how the law applies to problems and disputes in the construction industry. To a lesser extent it has also provided me with expertise about the law and its workings in general.  To a great extent it has colored my view of the world.

Butcher, baker, candlestick maker, we all have our predilections that influence our picture of the world.  And beyond our profession, trade, craft, or avocation that fills our days and weeks and years, our understanding of the world remains limited. Deep knowledge of one subject may translate far beyond the narrow subject matter, but our horizon of vision remains inevitably limited. Beyond the pale of our ken we are all left naive about most things in the world.

In college, a professor once attempted to explain to us the use of a liberal arts education: "It will train you to recognize drivel when you hear it," he said.  And 40 years down the road I can vouch that there is something to this.  Our education and work related expertise acts as a drivel-detecting divining rod.  Although we may be fooled, we do acquire some ability to recognize deep expertise in others, and to recognize when they are full of drivel.  And this sixth sense about where knowledge can be found is essential because, beyond our own narrow expertise, we rely almost exclusively on others to help us understand how the world works.  Is there global warming and what can we do about it? What government policies will be most effective for creating jobs? What is the danger of government debt in excess of 100% GDP? Is fracking bad? is GMO bad? How can peace come to the Middle East? What is the nature of the universe? Can matter be created from nothing? How did life begin? Is there a God? All we have is our wits and who we decide to listen to.

So here are my ten rules for understanding the broad and mysterious world.

1. Pay attention to your own expertise and apply your wits as clearly, honestly, and best you can.

2.  Be careful and skeptical when you step beyond the pale of your ken.

3.  Pay no attention to drivel.

4.  Be open to reconsider.

5.  Recognize that we like stories about how the world works and that all stories are folklore.

6.  Recognize that, although folklore is the best we can do, folklore may be completely false.

7.  Pay attention to more than one source; pay attention to as many sources as possible.

8.  Pay attention to competing stories (subject to the no drivel rule).

9.  Eschew hubris.

10.  Don't trade in ad hominem attacks based on folklore.

Good luck!

Monday, December 1, 2014

Fly Air Gini

The Hoypoloi at the Back of the Plane

The other day Frank Bruni filled a column complaining how boorish passengers are getting in economy class.  I think he spends too much time flying Business Class and doesn't get it.

For a column that tries to say the hoypoloi at the back of the plane should show more empathy, he starts in a funny (and I don't mean ha, ha funny) manner.
THE woman in 27E doesn’t have only one carry-on plus a small bag for a laptop or personal items. She has one carry-on plus a purse the size of a bassinet plus some canvas vessel for all of her electronics plus two different plastic totes for various pillows, blankets and possibly an ottoman and a coffee table. Shuffling down the aisle, she looks more like a Peruvian llama than anything human. She grunts and buckles.
Come on Bruni, show a little understanding for your fellow travelers. Don't make fun of them.

The hoypoli are morally weak, says Bruni:
There are few better showcases of Americans’ worst impulses, circa 2014, than a 757 bound from New York to Los Angeles or from Sacramento to St. Louis. It’s a mile-high mirror of our talent for pettiness, our tendency toward selfishness, our disconnection from one another and our increasing demarcation of castes. It’s a microcosm at 30,000 to 45,000 feet.
He goes on to note how things are better in First Class, then concludes:
Too many of us lose sight of more than the earth. We forget that simply being up in the air is an experience that others seldom if ever get. If there’s one thing in even shorter supply than legroom, it’s empathy.
Clueless! We should be grateful we have it better than Syrian refugees... and never mind those  folks in business class and first class! Really. Stuff it Bruni. 

It is well known that if chickens are cooped up too tight on poultry farms they begin to cannibalize each other.  We humans are not so different.  Coop us up too tight, make us compete for overhead space, shove a seat into our knees, take away room to fully open a laptop, or move our elbows... and we're going to get surly.  And whose fault is that? Here's a hint: it's not about the chickens! 

I rather prefer Kieran Healy's take on this.  Healy, a professor of sociology at Duke, has a piece at Crooked Timber imagining what an airline based on the actual Gini coefficient of the U.S. would look like.  It would be worse at the back of the plane, but not as much worse as you might think. 

The Gini index is the most common measure of income inequality in a given country.  

Welcome to Air Gini: "We like to fly the way you like to live!" 

The Swiss Immigration Referendum: A Sign of the Times

The world is a mobile place. According to Gallup research, 700 million adults worldwide would like to permanently move to another country if they could.  Both actual and potential migration tends to be from the developing world to the developed world.

In raw numbers, the United States is the number one desired destination for these potential migrants. However, people who study these trends express potential net migration to or from a country in terms of a given country's population.  Switzerland, with its $80,000 per capita GDP, has by far the highest net potential migration index in Europe at 136% of population.  The United States has a net potential migration index of 45%. Israel has a net migration index of just 3%. Within the Middle East folks mostly want to go to Saudi Arabia (218%) and Kuwait (198%).

Younger and more educated people are more likely to migrate. International migration, therefore, tends to be a brain and energy gain for the receiving countries.

For example, Switzerland has benefited from the rich contribution of foreigners in its midst. The Swiss association of chemical, pharma, and biotech businesses has reported that of 67,000 people employed 45% are from abroad. According to this recent article [German] 44% of the population of Basel are foreigners. Indeed, towns like Basel, Geneva and Zurich have benefitted from a cosmopolitan flavor provided by internationals for centuries.

But a net population migration index of 136% can also exert pressures on a country. Since the beginning of the 20th Century, Switzerland's population has more than doubled, from 3.3 million in 1900 to 7.8 million in 2009.  During this time period, the percentage of permanent resident foreigners has also doubled. Nearly a quarter of the population are now not Swiss citizens.  [Legal residents are eligible for Swiss citizenship after a decade in the country, recently reduced from 12 years]
Permanent Foreign Residents as % of Pop.
Switzerland is a small country, just 41,258 square kilometers--roughly three times the size of Los Angeles County (roughly twice the size of Israel):
Switzerland superimposed on Los Angeles
Sixty percent (the Southern area) is covered by the Alps; another ten percent is covered by the Jura mountain range (the Northwest region). The Swiss think of themselves as a mountain folk, but in reality most of them (~5 million) live in the central plane bounded by Geneva--Neuchatel--Olten,--Winterthur--St. Gallen--Luzern--Bern,--Lausanne.  Throw in Basel (which is slightly apart), and all the heavy machinery, all the watches, all the processed foods, all the pharmaceuticals, all the banking happen in the central plane (Mittelland).
The Swiss Mittelland
The increase in population from 3.3 million in 1900 to 8.2 million today has mostly impacted this central plane. Although Switzerland does a better job at managing growth than most, the landscape has nevertheless been changing with forward progress.  Open fields and forests have yielded to infrastructure and housing needed to accommodate the increased population and industry.  So when there are reports that Switzerland is losing farmland to development at the rate of 27 acres per day, this periodically results in push back: "Enough of this growth, enough of these foreigners! Why can't we just go back to how things were?"

And because Switzerland practices direct democracy, such impulses result in voter initiatives from time to time.  The initiative (2009) prohibiting the construction of minarets was a manifestation of this inward looking desire for the past. Switzerland's refusal to join the European Union in 1992 is a manifestation of this apprehension of what the future will bring.

After Swiss voters declined to join the EU (by a narrow margin of 50.3%) Switzerland nevertheless negotiated various free trade treaties with the EU. In 2005 Swiss voters also agreed to join the European open border "Schengen" area.  This means Switzerland permitts free travel to and from EU member states (plus Norway and Iceland). In addition, Switzerland has made several bilateral free trade agreements with the EU, which among other things, commit Switzerland to free movement of peoples to work and live anywhere in the EU and in Switzerland.

This commitment has now been questioned.

This past February, the conservative Swiss Peoples Party (SVP) sponsored an initiative to curb mass-immigration to Switzerland, including immigration from EU member states.  The mass-immigration-initiative, adopted on February 9, 2014 reestablished immigration quotas (although the quota levels were left open). Passage of this initiative has placed in jeopardy several of Switzerland's bilateral treaty commitments on free trade with the EU. Under the treaties, Switzerland has three years, until February 9, 2017 to sort this out.  The legal implications, as well as the reaction of the EU are in doubt.

Passage of the mass-immigration initiative this past February will provide lots of uncertainty for the next two years, with potentially severe consequences for Switzerland's trade position with the EU member states.  Stay tuned ....

In the meantime, conservative forces in Switzerland tried to up the pressure with a new initiative which would have established a strict ceiling on net immigration of 0.2 percent of population (about 16,000 persons).  This would have resulted in a significant reduction of immigration to Switzerland, which has been as high as 100,000/year recently.  This initiative was handily rejected by 74% of Swiss voters on November 30, 2014.

The Swiss immigration quotas that remain in place after the February initiative will also play into discussions in various EU member states, where similar forces are playing out.

As in the United States, immigration policy will be a big part of the political landscape in Europe for the next few years.