Saturday, August 29, 2015

A Separate Peace with Gaza?

A year ago, at the outset of the latest Gaza war, I mused about a separate peace between Israel and Gaza that splits Gaza from the West Bank. It's a fantasy, of course, like the West Wing episode where President Bartlet solves the Israel/Palestinian crisis by dint of his charm, empathy, and good looks.

Yet, for the past few months news reports have hinted at negotiations between Hamas and Israel for a long term Gaza truce. See, e.g. Amos Harel. Tony Blair has been involved. Other intermediaries from Qatar, Europe, and the UN have been involved. There is talk of an airport and seaport for Gaza. What can it mean?

Not much, thinks Matt Duss. The gulf between Israel and Hamas, he says, is simply too deep. Netanyahu has been comparing Hamas to ISIS, so how likely is it that he would reach an agreement with them that would leave them in charge of Gaza? Concessions to Hamas with respect to Gaza would be perceived as rewarding violence, and Hamas would, of course, continue to work to take over the West Bank. Moreover, a separate peace with Hamas over Gaza would deepen the isolation between Gaza and the West Bank and (without quite explaining why) Duss indicates that any long term solution for peace requires connections between Gaza and the West Bank, and a common leadership. Duss also points to a recent report by the International Crisis Group which also suggests that long term peace prospects are enhanced by maintaining ties between Gaza and the West Bank, not by separating out the West Bank from Gaza.

Nevertheless, at this point in time Gaza and the West Bank are separated both geographically and in their leadership. Hamas and the Palestinian Authority are at odds. They don't see eye to eye. And this didn't just happen. Israel has worked hard to bring it about. Israel initially supported Hamas in order to weaken (and play them off against) the dominant Palestinian leadership, Yassir Arafat's Fatah. In 2005 Israel unilaterally withdrew from Gaza in order to build a fence and isolate Gaza with a blockade. At the same time, Israel constructed a separation barrier around the West Bank and all but eliminated commerce and contact between Palestinians in the West Bank and Gaza. Last summer, after Hamas and the Palestinian Authority announced a reconciliation government and announced elections for the fall—which might once again have brought common leadership to the West Bank and Gaza—Israel did its very best to make sure this would not come about. At the same time, comparisons to ISIS notwithstanding, Israel has been supporting the Hamas leadership in Gaza against its more militant rivals for some time.

So, although compelling reasons exist to think that Hamas and Israel are not serious in these reported negotiations, both Hamas and Israel could profit from such a deal, and it is possible they are in fact serious about forging a separate peace between Gaza and Israel.

Padraig O’Malley in The Two State Delusion makes a strong case that the “Two State Solution” is dead. Peter Beinart, in a review in the New York Times lauds the book for its scholarship and detail, but he is frustrated that O’Malley offers no alternative. “Why should I be so presumptuous as to dare to provide a vision for people who refuse to provide one for themselves?” says O’Malley.

Michael Barnett, professor of international affairs and political science at George Washington University, is not so reticent. “As the two-state solution fades into history,” he says, “its alternatives become increasingly likely: civil war, ethnic cleansing or a non-democratic state.” Barnett is putting his money on a non-democratic state. In fact, after 50 years of occupation, he notes “it is probably worth thinking about the ‘occupation’ not as temporary but rather as permanent.” Israel has not been “Jewish and Democratic” for some time. But we shouldn’t give up on democracy just yet.

Ideological goals aside, the prospect of a long term peace and an ability to build up Gaza economically (with international help), must be attractive to everyone living in Gaza. The prospect of a Gaza focused on economic development instead of fighting Israel must be attractive to Israel. It’s better than endlessly repeating the Gaza war, for both sides. It leaves the prospects for genuine democracy in Gaza in play.

And a separate peace with Gaza would allow Israel to pivot towards finding a way to end the occupation. It’s better than civil war or ethnic cleansing. It leaves the possibility of a democracy with Jewish characteristics in play. 
Aftermath of Gaza war 2008/09

It's Time to do More for Middle East Refugees

This lorry left Budapest for Austria early Wednesday morning, August 26, 2015, with a cargo of 59 men, eight women, three children, and one baby girl. They were from places yet unknown. They reached the border at 9:00 a.m., where the lorry held up. The truck slipped into Austria at nightfall.

Who were these refugees, what was their suffering? What were their stories?  Who was this driver? What is his story?  Who were the hard hearted men who collected the money and provided the truck? How much money did they collect to smuggle these 71 people into Europe?

The cargo bed lacked adequate ventilation. Sometime during the night the driver parked the truck on the side of the A4 motorway near picturesque Neusiedel am See.... and escaped, back to Hungary.

The 71 migrants were dead by then. Did they pound on the cab? Did they plead for light and air? How could they be refused?

Thirty years ago I read Russel Banks's Continental Drift, about the tragic intersection in the life arc of Haitian refugees and a working man-come-human-smuggler down on his luck.  It sent me into a depressive funk for a month.  Is it the story of this driver? He's in custody of the Hungarian police. Perhaps we'll learn more. Almost certainly there is a criminal syndicate with blood on its hands.

On Thursday morning, an employee mowing the grass noticed a putrid liquid dripping from the back of the truck. The stench of death was thick in the air. He called the police.  The bodies were so badly decomposed the body-count was grossly underestimated at first. Syrian travel papers were discovered in the heap of rotting flesh, guts, and intestines of men, women and children.

They say half of the Syrian population is displaced, trying to stay out of the way of the war between ISIS, various Al-Qaeda offshoots, militias, and the the regime of Bashar al-Assad. It was a vibrant country of 17 million with infrastructure in 2003. But today the country is destroyed by the civil war that broke out following the United States war on Iraq (2003-2010), the United States war on Afghanistan (2003-present), revolution in Egypt, and Europe's armed intervention in Libya and the toppling of Gaddafi. More than 250,000 are dead as a result of this war. More than 3.5 million refugees have fled the country. Where can they go? What do they find? What sufferings and uncertainties do they experience?

What is the alternate history where Al Gore is elected President in 2000? What is the alternate history where the United States does not launch two destructive 10 year wars in the Middle East in 2003? How much of the current refugee problem in the Middle East and North Africa is traceable to our actions in these wars?

Hundreds of thousands of refugees are on the road in a continuous stream heading for Europe. Through the Balkans they head for Austria and Germany; across the Mediterranean they head for Italy and Germany.  Approximately 300,000 refugees have made their way across the Mediterranean this year. Nearly 3,000 have drowned or were murdered along the way.

What is our collective responsibility towards these people?

Germany has agreed to resettle 30,000 Syrian refugees in this crisis so far, and this week Germany suspended the European conventions designed to limit refugee immigration with respect to Syrian refugees.  With its move, Germany (for now) will no longer send Syrian refugees back to their first point of contact, and will instead permit them to apply for asylum in Germany. That is good news. In the meantime, Britain has closed its doors and accepted just 90 refugees; Denmark just 140; and Spain just 130.  See RT News. The U.S. has not done its part.  We have accepted 350 Syrian refugees this year, although this will be increased to nearly 10,000/year. France has accepted 5,000 (as of June 2014).

It's time to do more.

Wednesday, August 26, 2015

How Does Judaism Renew Itself in a Secular World?

Over at Balkanization they have published an interesting symposium on Roberta Kwall's The Myth of the Cultural Jew: Culture and Law in Jewish Tradition. Seven legal scholars with interest in Jewish identity issues have written their reactions to the book. Some of these are intensely personal, all of them are well worth reading. [They are linked below]

In her book, Kwall, a professor at DePaul University School of Law, wrestles with the interrelationship of Jewish culture and Jewish law (halakhah). Specifically, she asks can there be Jewish culture without reference to Jewish law? Kwall argues "No." And, more significantly, is it possible to pass on Jewish culture without a continued active involvement with halakhah? And what is the nature of that (necessary) interaction?

Jewish Culture/Jewish Law

Kwall explains her thesis in an exchange with Shmuel Rosner in the Jewish Journal (I have edited to streamline):
[M]any Jews in the United States would identify as “cultural Jews” (meaning) not religious but who identif(y) as Jewish and (are) even proud of this designation. [F]or those who care about Jewish continuity, it is vital to unbundle what it means to “be Jewish” and to nurture this quality. Toward this end, it is helpful to understand that Jewish law (known as halakhah) and what we think of as Jewish culture are completely intertwined. 
... [All] legal systems and the cultures from which they emanate are the products of human enterprise, shaped in response to specific historical circumstances and environmental influences. Any legal system not only reflects the influences of its surrounding culture but also takes these cultural influences into account in its formation and development. The recent Supreme Court decision supporting same-sex marriage is a current illustration of this very phenomenon. Specifically, the Court’s decision can be seen as a response to current social sensibilities concerning this issue. 
... [H]alakhah (Jewish law) both reflects and is shaped by social and cultural practices. Jewish law, which is binding upon Jews according to the tradition, produces Jewish culture and Jewish culture produces Jewish law. .... Even Orthodox authorities ... have recognized that Jewish law has developed in human society rather than in Heaven. As a result, the development and formation of Jewish law is the product of human production, despite the tradition’s position that its origin is Divine. As for its content, Jewish law covers far more than ritual matters but extends to virtually all aspects of human behavior including money, sex, and even the order in which one puts on and ties shoes! 
[T]he content of halakhah ... has been shaped by the cultural practices of the Jewish people and by the circumstances in which they have lived.... Over space and time, Jewish law and culture have borrowed from, and even subverted, cultural elements from the host societies of the Jews. ....

[Because] the laws and the cultural aspects of the Jewish tradition are completely intertwined[,...] those who claim to be “cultural Jews” cannot help but embrace a degree of Jewish law and tradition regardless of whether they are aware of, or acknowledge, this reality. ... [M]any self-denominated cultural Jews celebrate Chanukah, Passover and fast on Yom Kippur, although they do not necessarily associate halakhah as the source of these behaviors. Many cultural Jews still want to celebrate the birth of a male child with a ritual circumcision known as a brit (or a naming ceremony for a girl) and want to have their children celebrate a Bar or Bat Mitzvah. ....Similarly, when cultural Jews marry, the ceremony often contains significant Jewish trappings such as a chuppah and the breaking of a glass, even if the spouse is not Jewish. We also see the importance of Jewish tradition at life’s end given the enduring popularity of the shiva, despite its frequent truncation to a shorter period than the traditional week. All of these examples illustrate the reality that so much of what American Jews do and how they behave has very much been shaped by the norms of the Jewish tradition, norms that embody not only the culture but also halakhah.
In Part 2 she elaborates:
.... If individuals are inclined to identify as “culturally Jewish,” they clearly appreciate something about the culture. So my two questions for such Jews are: 1) What are the elements of Jewish culture that make you want to identify with it? 2) Is your identification as a cultural Jew sufficiently positive to foster a desire for the culture’s transmission to future generations? 
I suspect that most secular, cultural Jews would have a hard time giving a precise answer to the first question .... [M]ost self-defined cultural Jews would not list religious engagement among these elements (that make them want to identify with the tradition). .... [H]owever, viewing the ritual and the culture as distinct entities of the tradition completely misses the mark. One reason I wrote The Myth of the Cultural Jew was to call attention to the fundamental interconnection between Jewish law and culture. Although recognition of this interconnection may not automatically instill a love of Jewish observance, it does lead to a better understanding of the Jewish culture that cultural Jews value. Cultural Jews need to understand the importance that halakhah has played in the creation of their beloved Jewish culture. 
I suspect that what drives the Jewish identity of many cultural Jews is a pride of peoplehood. In other words, many cultural Jews value Jewish culture and want to identify with it because it is a part of who they are, and how they see themselves. But it is vital for cultural Jews to understand that the religious aspects of the tradition that they eschew both create and reflect the same history and culture that cultural Jews embrace. ...

As for the second question (many Jews) ... feel strongly about the importance of Jewish continuity and transmission of the tradition.... [but] ... [t]he “Jewish” content of American-Jewish culture is becoming less apparent and important to those American Jews who do not recognize or appreciate the halakhic roots of Jewish culture. Those cultural Jews who embrace Jewish continuity but avoid religious practice need to be educated to understand, and care about, the fact that halakhah provides the basis for the particularity of the cultural tradition about which they do care. The continuity of Jewish peoplehood depends upon a discourse grounded in halakhah, given the law’s pivotal role in shaping our people over the millennia. Halakhah allows Jews to connect the past with the present through a concrete tradition, and helps mold a path to the future by providing the essential ingredients for modern interpretations of this tradition.

In Israel, where the majority of Jews claim to be secular, it is far easier to create and maintain Jewish identity. Even Israeli Jews who are not highly educated from a Jewish standpoint have a greater familiarity with Jewish texts, customs and traditions than most Diaspora Jews. Jewish culture is the majority culture in Israel and the country operates according to “Jewish time.” The situation is completely different in the Diaspora where the majority culture is not based on Hebrew or Jewish roots, and the land on which the Jews live is not their historic homeland. These realities present tremendous challenges for Jewish educators and for lay leaders in the United States who are concerned with Jewish continuity. 
In short, Kwall contends that cultural Judaism in a secular U.S. environment (e.g. celebrating Passover, Hannukah, Yom Kippur, the odd Shabbat, sitting Shiva when a parent dies, sometimes avoiding pork) must be understood in light of the legal tradition from which the cultural traditions arose, otherwise the traditions will die out.

Legal Tradition and Change

Several of the commenters in the symposium note the book's strength in tracing the connections between Jewish culture and its legal antecedents, and in demonstrating the effect of culture on Jewish law over time. Kwall embraces an egalitarian and modern feminist interpretation of halakhah.  Her book makes an effort to explain how halakhah, which traditionally has prohibited homo-sexual relationships, denied women the right to read from Torah, and precluded women from becoming rabbis, can (in our 21st century post-enlightenment culture) accommodate homosexual marriage, women reading from the Torah, and women becoming rabbis.

Jack Balkin in his contribution focuses on the process by which the law might be updated in this manner. It entails a slight of hand he says (my word), wherein the legal guardians deny that they are being influenced by the culture around them (even as they are), and assert that they are merely "applying the law" (even as they are importing new cultural norms). Read More.

Woody Allen or What's Up with Halakhah Without God?

All of the commenters bristle to varying degrees at the normative notion in Kwall's book: that because Jewish culture such as it is today has its roots in halakhah, cultural Jews must therefore (in order to be good Jews?) embrace halakhah as a reference point, accept halakhah as somehow binding, or look to halakhah to derive meaning for an ongoing cultural relationship with Judaism. 

Hillel Levin asks why? Why is it necessary for a cultural Jew to engage with halakhah if they reject the underlying claim to divinity or obligation? As Alan Brownstein notes, the problem for secular Jews is not simply that they doubt that the commandments of halakhah are an accurate description of God's laws, secular Jews do not believe in God. Sandy Levinson adds that without a belief in God, halakhah lacks legitimacy and cannot be "binding" on anyone in any sense. If halakhah is not binding and lacks political legitimacy, how can halakhah be instrumental in perpetuating Jewish culture moving forward? Brownstein laments that the book does not wrestle with that question more.

By making halakhah central to perpetuating Jewish culture, Kwall implicitly argues that there is something unique about Jewish culture in the U.S.  But Mark Graber observes that there is, in fact, nothing unique about cultural Judaism in the United States. Cultural Jews are simply Jewish-Americans the same way that there are Italian-Americans, and Irish-Americans, and African-Americans.  Jewish-Americans celebrate Passover, eat bagels, go Israeli folk dancing, socialize with other Jews, and cherish what they regard as Jewish values. In partaking of this culture, they are not guided by Jewish law. If they celebrate Passover but don't fast on Yom Kippur it is not because they have concluded that Passover is more central to Jewish legal culture--Passover simply feels more satisfying than the more somber Yom Kippur. "What appears random practice from the perspective of the Jewish legal culture," says Graber, "makes far more sense from the perspective of American cultural pluralism." 

Halakhah does not seem necessary for cultural self-identification. Cultural identities can in fact last a long time without reference to separate laws. Cultural Judaism in the United States may not be as robust as Kwall would like, says Sherry Colb, but this does not make a purely cultural Jew an impossibility. Moreover, says Colb, a hyphenated ethnic identity may be more robust than Kwall imagines.  As Shari Motro notes: "The aspects of Phillip Roth and Woody Allen and Jon Stewart that make them recognizably Jewish are not a myth."

Ethnic Identity: Is it Enough; is it Desirable?

Hyphenated Jewish-American cultural identity is cemented strongly by a history of persecution of the Jews, culminating in the Holocaust, together with an ethnic identity, and a strong Zionist nationalism. As Colb puts it:
Tribalism is a powerful force, and the mix of blood (in the form of racial identification), land (in the form of nationalism associated with having a state where Jews, broadly defined, are welcome), and the persecution itself from which Jews might be fleeing to that state (paradigmatically exemplified by the Holocaust) could conceivably keep the Jews “going” for a long time as an identifiable group with cultural norms bereft of what I would concede are the richness and beauty contained in the halakhah.
But the tribalism reflected in the nationalist Zionist project makes Sandy Levinson nervous. The only kind of state worth having, he implies, is a secular state with equal rights for all:
I find it easy to agree with Walzer that perhaps the greatest tragedy of post-Independence Israel is that the Labor Zionists who founded the state and put into place what in many ways has been a vibrant democracy totally “fail[ed] to produce a strong and coherent secular culture to go with that democracy.” That failure, repeated in India, which Walzer also analyzes at length (along with Algeria), is precisely what gave space for the non-secular to use democratic procedures to come to power. But Kwall presumably believes that it is basically impossible “to produce a strong and coherent secular culture” that would still deserve to be called distinctly “Jewish.” That simply states the fundamental dilemma rather than necessarily provides a solution.
As it is playing out, the end point of ethnic nationalist Zionism is the settler terrorist movement we see reflected in the front pages of our newspapers today, says Levinson. Sherry Colb hints at agreement when she says that an enduring tie to some sort of halakhah is preferable as a vehicle to perpetuate Jewish culture and identity than tribalism.

Halakhah and the Lamentations of Job

Which leaves us with Shari Motro's contribution, which is the most vehement in its reaction to Kwall, but which also leaves us with some hope for continuing the search.  It reminds me of the lamentations of Job.

Here is Motro wrestling with her own doubts:
The part of me that sympathizes despite myself... is that assimilated Jews reflect something in me that I’m not at peace with, an anxiety I have felt about my own Jewishness fading.

The Myth of the Cultural Jew—which ... offers a window into the incredibly rich tapestry that is my tradition—helps me connect some of these dots. It helps me realize that notwithstanding the gifts that have come my way through meditation, notwithstanding the lessons I’ve learned from Buddhists and Quakers and Christians, when I lose touch with Jewish practice there is a voice within me that says: חבל, it’s a shame.

The second way in which I resonate with Roberta’s project has to do with celebrating Judaism’s commitment to pluralism. Israel does, after all, mean “God wrestler.” Pluralism, the multiplicity of narratives, the rejection of “textual fundamentalism”—these are at the heart of what Judaism means, as Roberta so beautifully illustrates.

The Myth of the Cultural Jew—these words are not so inviting. But other words throughout parts of the book are. The ones I resonate with most dovetail with the tikkun, the healing reversal, I’ve experienced from other observant Jews who accepted me as I was, at every point along my path from secularism to my evolving idiosyncratic observance.

Some of these angels are Orthodox or Modern Orthodox, some are practitioners of Jewish Renewal, and some refuse to be categorized (when asked, they simply say: I am a Jew). Not only did they reverse the cold shoulder I’d experienced from less tolerant religious Jews, they genuinely embraced the possibility that davka the secular world I come from is essential not as fodder for conversion, but as its own expression of Israel. They assured me that my midrash on the Exodus is every bit as legitimate as theirs, that I have a place at the table not only as a polite guest, but as a co-creator. By curbing the impulse to dismiss my kind of Judaism as a myth, these fellow travelers helped me drop my resistance to theirs, and to open to the possibility that Jewish law might be part of my path too. They helped me understand that law can be a vehicle for transcendence, an incredibly powerful spiritual technology.

...[W]hat I read beyond the p’shat (the surface meaning) of Roberta’s argument was an invitation, an invitation to all Jews—cultural, religious, and all shades in between. The actions, the words, the nigunim (tunes), the history, the Yiddishe Kopf (discursive habits), the neshama (spirit), the kavana (intention) that Jews bring to our lives—they are all important, in different degrees to different Jews.

Let’s not judge one other. Let’s get together. Let’s open a conversation. Not because we want to save something from extinction. Because we’re family, we share a history, and connecting through this history is incomparably meaningful. We share a history that includes some pretty violent breaks, breaks that led some of us to lose track of relatives, so it’s quite possible that any two Jews are literally kin. Our great-grandparents might have been cousins in Warsaw or Baghdad or Shanghai. They might have said kaddish together in Alexandria or Kobe or Brisk. Saying it together today, or breaking bread, or doing tashlich can connect us to them, and through them to something in ourselves.

Observing these rituals is participating in law and culture. Law broadly conceived, with its infinite, kaleidoscopic interpretive possibilities is not the only vessel of our tradition. But for me, nor is it expendable.
Where this leaves me, a non-Jew engaging with the tradition because I'm married into the tribe, I have no idea. But it's enough to keep the conversation going.

Sunday, August 23, 2015

Right Wing Affinity Fraudsters

The U.S. 14th Amendment famously confers citizenship to anyone born in the United States, be they direct descendants of Asians who crossed the land bridge 13,000 years ago, the Pilgrims on the Mayflower, Chinese coming to the Gold Mountain in the 19th century, undocumented immigrants in the 21st century, or a tourist passing through American airspace on a flight from Vancouver to Mexico City.

Donald Trump wants to put an end to it. He wants to end birthright citizenship. This would require a constitutional amendment, of course, so it's not like this is something he or a Republican Congress could actually just do.  So he's talking to exploit sentiments, he's not talking real policy.

But what about Bobby Jindal, the governor of Louisiana, who was born to Indian parents in the U.S. on a student visa?  Last week he tweeted "we need to end birthright citizenship for illegal immigrants." What about Ted Cruz, the supercilious Senator from Texas. He "absolutely" supports ending birthright citizenship (according to a Bloomberg Politics reporter). Cruz was born in Canada to a Cuban national father and a U.S. mother.  Marco Rubio, the Senator from Florida--born to Cuban national economic refugees who came to the U.S. before Castro's rise to power, and who were NOT citizens when Rubio was born--is on board with Trump: he says "he's open to doing something" about people who "deliberately come to the U.S. to take advantage of the 14th Am." If this does not mean people like himself, what does this mean?

Funny thing about those Republican candidates for President who want to do away with birthright citizenship even though they are the direct beneficiaries of it!

Brad DeLong calls it "Right Wing affinity fraud"--  "pretending to believe, or convincing even oneself that one does believe, patently unbelievable things in order to demonstrate group allegiance."

The United States Securities and Exchange Commission defines "affinity fraud" as follows:
Affinity fraud refers to investment scams that prey upon members of identifiable groups, such as religious or ethnic communities, the elderly, or professional groups. The fraudsters who promote affinity scams frequently are - or pretend to be - members of the group. They often enlist respected community or religious leaders from within the group to spread the word about the scheme by convincing those people that a fraudulent investment is legitimate and worthwhile. Many times, those leaders become unwitting victims of the fraudster's ruse.
Affinity fraud is a common sin of politicians of course, but this crop of Republican candidates is over the top. As my grandmother would have said, "PFUI!"

In the meantime, there is strong scholarly consensus that immigration is a net positive (NYT, 2012) to the fabric and economy of the United States:
[W]e commissioned some of the most meticulous research done to date about the effects of immigration on a cross section of American communities — urban, suburban and rural. The scholars who participated were in remarkable agreement: while new immigrants are poorer than the general population and face considerable hardship, there is no evidence that they have reshaped the social fabric in harmful ways. America is neither less safe because of immigration nor is it worse off economically. In fact, in the regions where immigrants have settled in the past two decades, crime has gone down, cities have grown, poor urban neighborhoods have been rebuilt, and small towns that were once on life support are springing back. Scholars can’t say for sure that immigration caused these positive developments, but we know enough to debunk the notion that immigrants worsen social ills.
Republican's need 40% of the Latino vote to win the presidency, says a study by Latino Decisions.  So what are these affinity fraudsters thinking?

David Gergen, in a recent talk at the Commonwealth Club in San Francisco, says that Trump has no expectation of becoming president. He just wants to rabble rouse and build the Trump brand. But what about Rubio, and Jindal and Cruz? They must realize that they are not ready for the presidency in 2016--so the game is to make a splash with the base in order to build up support for a future run?

The electorate has short memories.

Jeb Bush, meanwhile, has come out against the affinity fraudsters. He supports (Politico) birthright citizenship as a constitutional right.

Ex New Jersey governor Chris Christie--he with staff who vindictively caused traffic jams, he who vetoed legislation to prohibit the cruel and inhumane confinement of pigs in pens (overwhelmingly passed by his state) because he wanted to pander to Iowa hog farmers--is hedging. He has said that he has reconsidered his 2010 stance in support of a pathway to citizenship for undocumented workers who have long contributed to our economy. On birthright citizenship, he has called Trump's position "an applause line."  

Thursday, August 20, 2015

The Power of the Executive vs. the Reason of the Courts

Justice Jackson (Oyez Project)
In response to my post on Justice Jackson's dissent in Korematsu, John Barrett, professor of constitutional law at St. John's University, forwarded me his excellent law review article A Commander's Power, a Civilian's Reasons: Justice Jackson's Korematsu Dissent, published in Law and Contemporary Problems, Vol. 68 (2005).  

Professor Barrett is currently writing a biography of Justice Jackson, seemingly a truly remarkable man. Barrett is a clear and engaging writer. I look forward to his book. 

In the meantime, professor Barrett has helped further clarify my thinking on Justice Jackson and Korematsu.  Specifically the framing of the issue as a struggle between Power and Reason. 

We live in a state with a lot of power: the most powerful army the world has ever seen, powerful and sophisticated police forces, and powerful and developed intelligence services. As a constitutional democracy we subordinate a lot of this power to the rule of law--to reason. 

Presidents, the military, and the police wield power. Although their power is usually moderated and restrained by laws, regulations, and tradition, in the final analysis Power can trump Reason. It can trump the rule of law. If push comes to shove, Presidents and military commanders can ignore the courts...and there is nothing the courts can do about it.

Sometimes Presidents explain the reasons behind their actions, but their explanations tend to be more political than reasoned.  Military and police forces are not accustomed to provide either reasons or explanations for their actions. 

Judges provide extensive reasons for their decisions. Judicial decisions have force only to the extent they are accepted, and they are accepted only by dint of their persuasiveness in developing reasons why we should follow them. This force of Reason is backed up by tradition, by statutes, and by a constitution... but above all by our acceptance, and by the state's willing subordination of its power to Reason. 

Professor Barrett in his article directs us to a speech Justice Jackson delivered late in life at the University of Buffalo (he died prematurely at 62 years of age). There he framed the issue he was dealing with in Korematsu as follows: 

"The issue as we get it (in cases like Korematsu) is more nearly this: Measures violative of constitutional rights are claimed to be necessary to security, in the judgment of officials who are best in a position to know, but the necessity is not provable by ordinary evidence and the court is in no position to determine the necessity for itself. What does it do then?"  

In his Buffalo speech Justice Jackson distinguishes the three approaches taken in Korematsu as follows: 1) bending the constitution to accommodate the military action in light of the emergency (Black’s opinion); 2) refusing to yield to military necessity and calling the action a clear constitutional violation, letting the chips fall where they may (Roberts and Murphy); and 3) setting Korematsu free “under judicial commitment" (because the order was unconstitutional) but the court should not interfere if the military “attempted to enforce the measure” (Jackson's dissent).   

I’m not sure what Jackson meant by “judicial commitment” in his Buffalo speech. In the opinion he said “set free.”  Is he hedging in Buffalo?  As professor Barrett explains in his article, Jackson was concerned about (cognizant of) the fact that the judiciary is ultimately at the mercy of the executive and military for following the order. I understood Justice Jackson to mean the court should not grant an injunction in the opinion.  In Buffalo he explained that what he had in mind was akin to suspending the writ of habeas corpus.  That suggests he is saying “call it as you see it” like Roberts and Murphy, but know that the military may not go along, and be ready to accept the military’s power over the court’s Reason when that happens.  

Justice Jackson's important insight, that the military will (and must) do unconstitutional things in time of war to protect the country, was lost on the majority.  It seems to me this insight by Jackson is (a) correct, and (b) really valuable for thinking about the issues.  I think Jackson is also correct that the need to call a reasonable military action “constitutional” (by definition) is really dangerous. 

Professor Barrett states in his article that Jackson "all but urged courts to treat as non-justiciable any citizen’s claim that a war-time military action was unconstitutional” (at p. 61). He cites to prof. Gudridge as sharing that view.  I disagree with them. As professor Barrett points out elsewhere in the article, Jackson was deeply empathetic with Korematsu as an individual.  He would have set him free, even recognizing that the executive and military might not obey. I don’t think he would want to bar the courthouse door to him. 

In case of Korematsu, decided in ’45, the practical situation (Japanese fully on defensive, war nearing its end) was such that it was unlikely the military would not honor a ruling by the court that the exclusion order of Japanese from the West Coast was unconstitutional. There was no reason, therefore, to declare this case non-justiciable in 1944. Cf the companion case, Endo, wherein the court essentially put a halt to internment, but on non-constitutional grounds.  

The imbalance between Power (the will of the military) and Reason (the constitutional judgment of the court) would have been more pronounced in 1942, in the immediate wake of the Pearl Harbor attack.  What should a trial court have done faced with a challenge to the military exclusion order in the summer of ’42?  That’s a tough case, and at the heart of the issue because the military power might trump constitutional reason at that point--i.e. there is risk the military would have ignored the order.   

What should a trial court have done if confronted with extra-judicial actions by the military or intelligence services in the “war on terror” in late 2001  2011?  In 2015?  In the conflict between Reason and Power, Reason is stronger in 2015 whereas Power may have been ascendant in 2011.  Jackson’s opinion, in essence, says this fluctuation in the power-struggle between Reason and Power should not affect the constitutional analysis—which must always be based on reason.

I think Jackson was right that Korematsu raises issues that go to the heart of the ultimate power centers in a constitutional democracy and that this presents a struggle between Reason and Power. Jackson did not have a neat answer to resolve this conflict in Korematsu because there is no neat answer.  It’s just a condition of constitutional democracy.  

One place where this Jacksonian Power vs. Reason formulation might be helpful is in thinking about John Yoo's and Jay Bybee's roles in creating the torture memo’s.  Professor Barrett indicates how Jackson, as attorney  general in the late 1930's, was helping to spy on civilians that might be a threat in the future, and how he helped devise ways to subvert the will of Congress on going off the gold standard. He obviously did not do this because he was a "bad man." In these examples, Jackson was acting in the service of the Power of the executive—and perhaps contrary to the Reason of law. Similarly, Yoo and Bybee, in crafting the torture memos that gave cover to the CIA to proceed with enhanced interrogation, acted reasonably (if unconstitutionally) in the service of Power: they were helping the military “do the dirty work that needs to be done to protect the country” in a time of crisis.  Applying Justice Jackson’s pragmatism in distinguishing the Reason of the law from the Power of the executive in war, courts might clearly declare that, e.g., “enhanced interrogation” is unconstitutional—as the cases present themselves—but refuse to hear a criminal action from ambitious prosecutors, or civil litigants,  against the likes of Yoo or Bybee for their (reasonable?) actions undertaken in the service of military power in a time of war/national emergency.  As Justice Jackson knew well from his experience as prosecutor at Nuremberg, however, there is a point where Power so oversteps its bounds that the correct response is a war crimes trial.  Locating that line in a given case is why judges get paid the big bucks (20% in cash and 80% in prestige). 

Wednesday, August 19, 2015

Advice from Justice Jackson for our "War on Terror"

Exclusion Area for Japanese Americans during WWII
and location of Detention Camps
In times of conflict our military and intelligence authorities sometimes pursue extra-judicial measures for our protection.  For the past 14 years, we have been conducting a "war on terror." Much of this war has been conducted in an extra-judicial manner: from extra-judicial renderings, to long term detention without charge at Guantanamo, to warrantless mass surveillance, to drone killings. 

What is the proper role of courts in such times?

Justice Robert H. Jackson in his dissent in Korematsu v. United States provides some guidance.  He cautioned that, even if the courts are not able to act as an effective overseer of our military and intelligence forces in times of war, it is important that courts stay true to their role as guardians of the constitution. Above all else, courts must not allow emergencies and war to degrade our constitutional values and protections. In other words, courts must not throw citizens to the wolves of the military, CIA, NSA, FBI, in the name of national security. We would do well to heed Justice Jackson's advice today.


Korematsu is the infamous 6-3 decision of the United States Supreme court, issued on December 18,  1944. As the war was nearing its end, the court retroactively approved a panicked military decision made at the outset of the war.  By approving the hasty (and racist) military action at the outset of the war as "constitutional," the court adapted the constitution to the emergency. The court allowed the emergency to erode the constitution.  It was a mistake.

On December 7, 1941, Japanese planes attacked Pearl Harbor and largely destroyed the U.S. Pacific fleet; 2,403 seamen and airmen lost their lives. The next day the United States declared war against Japan. Over the subsequent weeks, in a fit of hysterics and prejudice, Japanese Americans were fired from government jobs, and had their cameras and short-wave radios confiscated.  Newspapers fanned the flames of prejudice.  For a survey of NW papers See Here . 

On February 19, 1942 two and a half months after the attack on Pearl Harbor, President Roosevelt signed Executive Order 9066 authorizing military commanders to exclude anyone from designated "military areas," subject to whatever restrictions the commander may impose in his discretion.  A companion congressional statute made it a misdemeanor to disobey any order of the military commander regarding a restricted area.

Over the next few months of 1942, military commanders "deemed it necessary" to relocate approximately 117,000 people of Japanese ancestry  from regions of the West Coast to internment camps.  These citizens (mostly) were imprisoned in detention camps throughout the West, under harsh conditions without any hearing or individualized suspicion whatsoever, purely based on ancestry, race, and prejudice. The courts fell short in safeguarding the constitutional rights of these individuals.

Camp Harmony, Puyallup, WA
Camp Granada, CO
Toyasaburo Korematsu, a resident of San Leandro, CA, refused an order to leave his home and he subsequently challenged his resulting arrest and conviction in court. The case reached the United States Supreme Court.

In a narrow holding, the Supreme Court approved as "constitutional" the exclusion of Japanese American citizens from designated areas along the West Coast.  But in actuality, the court--to its everlasting shame--closed its eyes to the constitution and the imprisonment of 117,000 citizens in concentration camps based solely on ancestry.[1] 

Justice Black began his majority decision with an admission: 
It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.
He next noted that the court had previously upheld a curfew order, based on the same set of military orders in Hirabayashi v. U.S. (320 U.S. 81, June 1943).  Notably, the court had found (1) that the delegation of the executive order to the military commander to take such measures as he "deemed necessary or desirable" was not an unconstitutional delegation of authority in war time; and (2) that to limit the curfew to residents of Japanese ancestry did not violate the equal protection clause.
To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.
Justice Black went on to summarily uphold the relocation order in Korematsu, as follows:
In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. 
Without any hearing or taking of evidence on the question, the court deferred to the military authorities that there might be some in the target population who might pose a threat, and upheld the action on the ground that it would be impractical to quickly and accurately identify those few individuals who might in fact be a threat. The court acknowledged that this was a burden, but observed that in times of war, everyone bears a burden, and the burden falls on citizens unequally. Without expressly stating it, the court implied that being interned based on generalized prejudice is unfortunate, but it is not worse than the lot of infantry grunts stuck on a landing craft at Normandy.

The court found that the exclusion order that forced Korematsu to leave his home was not based on prejudice, but rather on the fact that we were at war with Japan.  But it must be noted, of course, that there was a history of prejudice against Asians in the West, and there were no similar orders covering German Americans or Italian Americans, which leaves some question about the "no prejudice" claim.

Today, it appears, the NSA is collecting the personal phone and computer data of vast numbers, without warrant or cause, because there might be a few who would do us harm. Do the standards of the constitution for due process and equal protection alter in time of war so that this is O.K.? Should the constitutional standard be less stringent in time of war, as the majority suggested in Korematsu? Might it be o.k. under the constitution today to imprison hundreds of thousands of Muslims in detention camps because there is a "war on terror" and there are some Muslims who would do us harm? 

Most emphatically not, said justice Jackson. 

Jackson's Dissent in Korematsu

Justice Jackson starts with the undeniable: 
A citizen's presence in the locality... was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole- only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. 
Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it.
The "law" of which Korematsu was convicted, notes Jackson, was not an act of Congress, nor does it stem from the executive order.  The exclusion order comes from the military commander. Such military orders, driven by military exigencies, by their very nature do not always conform to conventional tests of constitutionality.
It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law.
But if it is true that the military has to do what it has to do in times of war in order to protect the country, says Jackson, we nevertheless do not bend the constitution to adapt to this military necessity. The courts should not sanction the military actions as "constitutional." Although the courts should stay out of the military's way as much as possible, they should vindicate the constitutional rights of individuals who come before the court.
But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. 
Courts are not suited to review military orders in times of military emergency, says Jackson. Such orders, by their nature are rough and secretive. They are not compatible with judicial review:
The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.
Think about these observations by justice Jackson here in light of the "enemy combatants" our government is holding in Guantanamo:
In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.
Military decisions are secretive, and they do not rest on the type of evidence courts require; they are made on assumptions that cannot be proven. If the courts are to have any oversight role, they would in practice be forced to accept the word of the military authority whose decision is being reviewed. This limitation, that courts can never have any real alternative to accepting the mere declaration of the authority that issued the order, it seems to me, applies equally to the secretive U.S. Foreign Intelligence Surveillance (FISA) court that Congress established in order to oversee our intelligence agencies and to issue secretive warrants. Such courts are part of the military or intelligence apparatus,  and useful for that purpose, but they are not an independent check on constitutional abuses.

The loss of liberty associated with such military orders and actions during times of national emergency is of course a matter of grave concern to those affected, says Justice Jackson. However, for courts to recognize such actions as constitutional--as the majority did in Korematsu--is to add insult to injury. Blessing such actions as "constitutional" represents a much more serious blow to liberty.
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.' A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case.
Justice Jackson concludes, therefore, that a civil court must not enforce any order that violates constitutional limitations--even if they are a reasonable exercise of military authority.
I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy.  Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.
When he says "the chief restraint upon those who command the physical forces of the country ... must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history," Justice Jackson was prescient: he was appointed one of the chief prosecutors of the Nazi war crimes tribunal at Nuremberg.

We must note that by the time the Supreme Court decided Korematsu, the perceived threat of attack against the United States West Coast from Japan had passed.  The Japanese were fully on the defensive by that time. So what guidance does Justice Jackson give to future courts?
My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner.
Jackson was of the view that the trial courts, when confronted by Korematsu's challenge in 1942, should have set him free.  Court's are bound to vindicate the constitution.  On the other hand, says Jackson, the court's should abstain from enforcing an injunction against the military action in a time of emergency ("[not] interfere with the Army in carrying out its task").

Is Justice Jackson's advice practical?  Setting Korematsu free but "otherwise not interfering with the Army's program" would very quickly begin to interfere with the army's program. This is easier said, therefore, in December 1944 than in 1942 when the Japanese empire was at its peak and Pearl Harbor was just attacked.  If the court had issued a ruling in 1942 that the relocation order was unconstitutional, it would not take long to man up an army of lawyers for each of the 117,000 Japanese detainees in the internment camps, or to launch a class action on their behalf.  The result would be individualized hearings at a judicial pace--even as the army continued to deal with the emergency. It is unlikely that 117,000 ethnic Japanese citizens and residents would have been detained for the duration of the war.

What Lessons for the War on Terror

The lesson to keep in mind from Justice Jackson's dissent is that a "war on terror" may, by its very nature, entail extra-judicial and extra-constitutional actions by our military, police, and intelligence services. The courts, however, should NEVER be party to bending the constitution to accommodate or justify such actions.  

What might this mean when individuals come before the court raising constitutional claims relating to "enhanced interrogations?" Extra-judicial renderings? Extra-judicial surveillance and data gathering? Extra-judicial drone strikes?  The courts should vindicate those rights to the extent possible... even as we recognize that our civil courts may not be the ultimate arbiter of the appropriateness of extra-judicial actions taken by our military and intelligence services in order to protect the country in an emergency or war. 


[1] To name the guilty and honor the virtuous: Justice Hugo Black wrote the opinion for the court, joined by Chief Justice Harlan Fiske Stone, and justices William O'Douglas, Stanley Reed, Felix Frankfurter, and Wiley Rutlege; justices Owen Rogers, Frank Murphy, and Robert H. Jackson--to their everlasting credit--all wrote in dissent]  In the companion case of Ex Parte Mitsuye Endo, 323 U.S. 283 (S. Ct. 1944) the court ordered the release of Mitsuye Endo from detention on non-constitutional grounds; the government in that case had admitted that Mitsuye Endo was a loyal citizen of the U.S. and, although it was lawful for the military to exclude her from the restricted area (the entire West Coast), Executive Order 9066 and the related Congressional statute--did not authorize military detention of loyal citizens outside of the exclusion zone.

Wednesday, August 12, 2015

Larry Cohler-Esses Travels to Iran and Discovers a Place with Politics

In the wake of the international agreement with Iran, The Forward has managed to send one of its reporters to Iran for an extensive trip. Larry Cohler-Esses managed to meet private citizens, members of the legislature, republican guards, grand ayatollahs, and many others all over the country. He writes about his trip in a lengthy piece published this morning: A Jewish Journalist's Exclusive Look Inside Iran. 

It's a lengthy report, but well worth a read for anyone interested in Iran, or the Iran deal currently before Congress. 

Image: Larry Cohler-Esses
Some excerpts from the article:  
Thirty-six years after ... Iranians coalesced around the elderly Grand Ayatollah Ruhollah Khomeini to overthrow the shah’s corrupt rule, the unique, theocratically controlled electoral polity he established sits today on the precipice of a huge change. After decades of isolation, many (though not all) of the international sanctions imposed against it are slated to be dropped in exchange for Shi’ite Tehran submitting to a nuclear inspection regime of unprecedented scope. American sanctions will also be lifted if Congress does not veto the deal negotiated by the United States and the five world powers. Iran consequently stands to reap a huge windfall of unfrozen assets, foreign investments and ramped-up trade that will eventually bring in hundreds of billions of dollars.
At the same time, this opening up threatens to bring with it — the world.
My visit ... represented something special: I was the first journalist from a Jewish, pro-Israel (if not always pro-Israel government) publication to be granted a journalist’s visa since the 1979 Revolution.
The Iranian Jewish community, whose members are today free to stay in the country or emigrate, currently numbers anywhere from 9,000 to 20,000, depending on whom you talk to, and down from 80,000 to 100,000 before the revolution. These Jews — along with Christians and Zoroastrians — are tolerated and protected under Iranian law, but subject to a number of discriminatory laws and practices that limit their opportunities for work in senior government posts and in other ways. But they do not limit their opportunities in business.

The Jews, who felt free to complain to me openly about these areas of discrimination, as they do to the government, are basically well-protected second-class citizens — a broadly prosperous, largely middle-class community whose members have no hesitation about walking down the streets of Tehran wearing yarmulkes.

But there is a catch. The government makes a rigid distinction between hostility to “the Zionist entity” and respect for followers of Judaism. As for that Zionist entity where some 6 million Jews live, former president Mahmoud Ahmadinejad’s avowal that Israel “must vanish from the page of time” or, as it has been inaccurately translated , “wiped off the map” (either way, an unequivocal threat) continues to be the policy of the Islamic Republic….
During the course of my conversations with several senior ayatollahs and prominent political and government officials, it became clear that there is high-placed dissent to the official line against Israel. No one had anything warm to say about the Jewish state. But pressed as to whether it was Israel’s policies or its very existence to which they objected, several were adamant: It’s Israel’s policies. Others, notwithstanding their ideological objection to a Jewish state, made it clear they would accept a two-state solution to Israel’s conflict with the Palestinians if the Palestinians were to negotiate one and approve it in a referendum.

Ordinary Iranians with whom I spoke have no interest at all in attacking Israel; their concern is with their own sense of isolation and economic struggle. Official government statistics estimate the unemployment in Iran at around 10%. But unofficial sources estimate it as twice that — and this in a context in which only 36% of the population participates in the workforce. An estimated 150,000 Iranians with college educations leave the country yearly.
But among ordinary Iranians the sense that something is now opening up in the country is pervasive.

In Iran today, freedom of the press remains a dream. But freedom of tongue has been set loose. ….
In Shiraz, in south-central Iran, Hassan Sha’aeri, a locksmith who appeared to be in his 60s with a shop on Zand Street, the town’s main thoroughfare, told me: “Generally speaking, people are in favor of the agreement. But I personally don’t think it will make any special change in the lives of people. The power holders will not allow it to benefit the people.”

Asked if he thought the agreement could open up Iran to the world and usher in broader cultural changes, Sha’aeri, a man old enough to recall earlier days, said: “Before the revolution we had all kinds of arts and culture. Of course, we had some limitations. But now there are many more problems in terms of things like the economy and political prisoners.”

“We have no enmity toward any countries,” Sha’aeri said in regard to Israel. Besides, he added as a small group of men in his shop listened in, “I think it’s impossible to destroy Israel.” If Iran were to attack the Jewish state, he said, “there will be huge destruction in return. It cannot happen. Every action has a reaction. Israel will not stay motionless, and the United States will not stay motionless.”
As I left Sha’aeri’s shop, the dignified locksmith said he wanted me to know that separately from everything else, “I’m happy people like you come here and seek to make friends. If people like you come here, I will learn from them.” …

When Rouhani came to the United Nations, soon after his surprise election victory he made it clear that the nuclear agreement he sought was not just about unfreezing financial sanctions in exchange for nuclear transparency. “Within a very short period of time there will be a settlement of the nuclear issue,” he told the New York press corps then . “And step-by-step [this will] pave the way for Iran’s better relations with the West, including the expansion of economic ties, the expansion of cultural ties and the expansion of relations between the Western nations and Iran.”

But under Iran’s hybrid theocratic electoral structure, it is Khamenei, not the elected president of the country, who has the last word, and he seems to be on guard already against what his security services regard as the dangers of a “velvet revolution.”

“We have repeatedly said we do not negotiate with the U.S. on regional or international affairs, not even on bilateral issues,” he said July 18, shortly after the nuclear agreement was signed. “There are some exceptions, like the nuclear program that we negotiated with Americans to serve our interests. U.S. policies in the region are diametrically opposed with Iran’s policies.”
Twelve years after President George W. Bush bet that the exercise of American hard power could introduce democracy to Iraq at the point of a gun and spread its virtues regionwide, his successor appears to have premised his nuclear agreement with Iraq’s neighbor on a much different bet: a wager, essentially, on the long-term efficacy of soft power. …. 
Read  more HERE.

Jeffrey Goldberg’s Apologia for Israel’s “Well-meaning” (but misguided) Supporters.

Announcement of Iran Deal July 14, 2015
Chuck Schumer, senator from New York, has broken rank with his fellow Democrats and come out in opposition of the Iran nuclear deal. He is the only Democratic senator who has come out against the deal so far, and he has taken quite a bit of flak for this decision. Jeffrey Goldberg wants to give him cover.

Republicans are universally opposed to the deal. I see three reasons for this: (1) Republicans are opposed for narrow political reasons; they have and will oppose every proposal of this administration, whether good, bad, or indifferent, for self-serving political reasons; (2) Israel has become a partisan political issue in the U.S. because Benjamin Netanyahu has overtly aligned himself with the Republican party and Netanyahu and his government are feverishly opposed to this international deal with Iran, and (3) both parties, but the Republicans especially, have great party cohesion on votes like this. If Netanyahu were in favor of this deal there would be no Republican opposition, so the actual merits of the deal, or lack thereof, has nothing to do with the Republican opposition in Congress.

It’s up to the Democrats to figure out the merits of this deal. All the action is on their side of the alley, that’s why Schumer’s defection matters.

Jeffrey Goldberg was an infamous media war-hawk in 2002 (see Salon, 2010), doing his best to lead us into the Iraq war. This time he supports the nuclear deal with Iran as well he should. Through diplomacy, Iran has voluntarily agreed not to pursue nuclear weapons. [Goldberg notes: (1) “Stringent implementation of the deal could be to Israel’s benefit because the limitations placed on Iran should keep it south of the nuclear threshold for many years;” and more directly (2) “I suspect that opponents of the deal in the American Jewish community are wrong in their views.”] He is not, of course, alone in this judgment. For example, yesterday a group of three dozen retired admirals and generals issued an open letter in strong support of the deal. Likewise, the Israeli security establishment is broadly of the view that undermining the relationship between Israel and the United States is a far greater threat to Israel than anything Iran does.

Nevertheless, we are again confronted with Goldberg throwing sand into the gears of the deal in the service of an obtuse apologia for “Israel’s well meaning supporters” who he thinks are mistakenly opposed to the Iran deal: Why Understanding Iran’s Anti-Semitism Matters (The Atlantic (8/11/15). In order to make out opponents (think Chuck Schumer) as reasonable—as opposed to treasonous—Goldberg compares Iran’s Ayatollah Khamenei to Hitler, he refers to unnamed non-Jews as more concerned than he (JG) is about the deal, and he frets whether Obama and Kerry are sufficiently understanding of the “eliminationist” nature of Khamenei's anti-Semitism. With friends like these, this Iran deal does not need enemies.

Here is Goldberg:
I put to Kerry what I thought was—to be honest—something of a gimme question: “Do you believe that Iranian leaders sincerely seek the elimination of the Jewish state?” Kerry responded provocatively—provocatively, that is, if you understand Iranian leaders, and in particular the supreme leader, Ayatollah Ali Khamenei, the way I understand them: as people theologically committed to the destruction of Israel. Quotes such as this one from Khamenei help lead me to this conclusion: “This barbaric, wolf-like, and infanticidal regime of Israel which spares no crime has no cure but to be annihilated.” The supreme leader does not specialize in nuance. 
I’m not sure what’s “gimme” about that question. Goldberg concludes Iran is committed to the destruction of Israel based on an English language tweet written in the name of Khamenei—a tweet that Khamenei most certainly did not write. Goldberg does not think it necessary to examine or discuss what’s behind this tweet (or Khamenei’s twitter feed in general), who wrote it, and under what circumstances. In examining the nature of Iran’s anti-Semitism Goldberg does not seem to think it necessary or relevant to discuss the condition of Jews in Iran, which would indicate that the regime is in fact not particularly anti-Semitic. Goldberg does not specialize in nuance.

So what’s Goldberg’s concern?
Kerry’s stated understanding of the regime’s anti-Semitism is somewhat different from mine. He told me, “I think they have a fundamental ideological confrontation with Israel at this particular moment. Whether or not that translates into active steps, to quote, ‘Wipe it,’ you know …” He paused, and so I filled in the blank: “Wipe it off the map.” Kerry continued, “I don’t know the answer to that. I haven’t seen anything that says to me—they’ve got 80,000 rockets in Hezbollah pointed at Israel, and any number of choices could have been made. They didn’t make the bomb when they had enough material for 10 to 12. They’ve signed on to an agreement where they say they’ll never try and make one and we have a mechanism in place where we can prove that. So I don’t want to get locked into that debate. I think it’s a waste of time here.” 
Goldberg says he is “troubled by [Kerry’s] unwillingness, or inability, to grapple squarely with Iran’s eliminationist desires.” But, of course, Goldberg shows that Kerry does grapple with Iran’s “eliminationist desires.” Kerry notes that Goldberg’s insinuation that Iran has the same “eliminationist” ideology as Hitler is belied by the fact that Iran, in fact, has not acted on its nuclear capacity. Also, the fact that, by Goldberg’s estimation, this deal will keep Iran south of the nuclear threshold for many years would seem to support Kerry’s statement that worrying about what was inside the Ayatollah’s head when someone in the Iranian government wrote a tweet in his name is not the main concern.

Goldberg frets about Iran’s irrational behavior with a nuclear weapon, a weapon that it has given up in this deal:
[In conversation with Obama about Iran’s potentially irrational behavior…] I made a decision on the spot—later partially regretted—not to deploy the H-bomb…. In retrospect, though, I should have raised it, because Hitler is the perfect, but not singular, example of a world leader who made decisions that seemed, to his adversaries, deeply irrational except if you understood his desire to wipe out the Jews of Europe as an actual overriding policy goal, a raison d’etre of his rule. Anti-Semitism was not simply an “organizing tool” for him. And if you’re paying attention, you will see that bringing about the end of the sovereign Jewish state in the Middle East is a paramount political and theological mission of the Iranian regime.
Which Hitler decisions is Goldberg talking about? Which Hitler decisions does he think were irrational unless “you understood his desire to wipe out the Jews of Europe?” Is he really suggesting that Hitler’s annexation of Austria, the Sudetenland, the invasion of Poland, Russia, Ukraine, North Africa, France, Denmark, England, and the rest were all motivated by anti-Semitism? Or made rational by anti-Semitism? That’s a pretty ridiculous claim. If that’s not what Goldberg means, what—pray tell—is he talking about?

Does Goldberg really mean to suggest that Iran’s aspirations for influence in Iraq, Iran’s rivalry with the Sunni states, its support of Assad, the Houthis in Yemen, or its desire to build up its economy and military are all irrational unless understood through a lens of anti-Semitism?

Goldberg obliquely accuses Obama of being naïve:
Obama believes the Iranian leadership will check its behavior in order to avoid potentially catastrophic fallout. He may be right, but I would like to see his administration place slightlyless faith in the idea of regime rationality. Obama and Kerry both say they understand Jewish anxiety on this issue. (My position on this is simple: If, in the post-Holocaust world, a group of people express a desire to hurt Jews, it is, for safety’s sake, best to believe them.)
But who is being naïve here? Goldberg himself believes the deal will keep Iran below the nuclear threshold for many years. He knows diplomacy has blocked Iran’s path to a nuclear weapon: Iran has agreed not to pursue a nuclear weapon, agreed to voluntarily abandon 98% of its enriched uranium, agreed to eliminate 13,896 of 20,000 centrifuges, and agreed to intrusive inspections. In the meantime, Goldberg knows that Israel has an arsenal of nuclear weapons that it can deliver by long-range rockets, bombers, or submarines. And no one is inhibiting Israel from continuing its weapons acquisitions. Goldberg knows that, twitter feed or no twitter feed, Iran does not and will not have the capacity to pose a real threat to Israel. So why should Obama and Kerry not place faith in Iran’s rationality?

Finally, in the last four paragraphs of his piece, Goldberg hints at what may be his real concern—he wants to defend Chuck Schumer.

There was another question that was “nagging me” and that he meant to ask the President, says Goldberg:
Why does it seem to a growing number of people (I count Chuck Schumer in this group) that an administration professing—honestly, from what I can tell—to understand Jewish anxieties about the consequences of anti-Semitism in the Middle East does not appear to understand that the way some of its advocates outside government are framing the Iran-deal fight—as one between Jewish special interests, on the one hand, and the entire rest of the world, on the other—may empower actual anti-Semites not only in the Middle East, but at home as well? 
Well, nobody is saying it is Jewish special interests against the rest of the world: it’s neo-con Jewish special interests (including $20 million from AIPAC), the Netanyahu government, Sunni Gulf states, the Republicans in Congress, and Chuck Schumer against the rest of the world. As noted, Goldberg does not specialize in nuance.

The administration should be making pro-Israel arguments, says Goldberg, in a way that gives cover to Israel’s well-meaning supporters in the United States (read Schumer): 
[I]t seems to me that a plausible case could be made that this deal, as John Kerry has enthusiastically argued, is actually in Israel’s best interests—not only when compared to the alternative, but especially when compared to the alternative—and that the administration can make great hay out of the pro-Israel argument, and counter arguments that blame Israel’s well-meaning supporters in the United States for political difficulties surrounding the deal. I suspect that opponents of the deal in the American Jewish community are wrong in their views, but this does not make them warmongers, in the way Charles Lindbergh once understood Jews to be warmongers.
Well, Obama has been arguing strenuously that this deal is in Israel’s interest. But Obama is not getting much help from Goldberg who supports the deal but is throwing sand in the works, or the American Jewish Israel lobby who are fighting tooth and nail against the deal, or from Schumer who wants to be the Democratic leader in the Senate but who says he’ll vote with the Republicans on this.

Supporters of the Obama administration are beginning to be scapegoated, says Goldberg? Huh? Who is being scapegoated? Does he mean J-Street? Does he mean Schumer? Does he mean AIPAC? How scapegoated? Goldberg is being incomprehensibly opaque. I think he is dog-whistling “anti-Semitism;” but to what end? 

Goldberg chides that supporters of the Iran deal appear to be as certain as he (Jeff Goldberg) was in his support for the Iraq war—which he, to his credit, regrets. Maybe supporters of the deal are making the wrong call on the Iran deal? But this is a red herring. Our criticism of Goldberg for his war-mongering in 2002 is not that he was certain—it is that he was dead wrong. Just like Schumer is dead wrong now. 

Goldberg concludes with a warning:
The deal … may very well prevent Iran from gaining possession of a nuclear weapon for a very long time—and rejection of the deal now by Congress is unlikely to lead to a good outcome—but the risks here are huge: The administration, and supporters of the deal, are mortgaging the future to a regime labeled by Kerry’s State Department as the foremost state sponsor of terrorism in the world, and a regime that seeks the physical elimination of a fellow member-state of the United Nations and a close ally of the United States as well. Given that there is so much risk and uncertainty in what the United States is doing, it would be useful for the administration to make absolutely clear that it understands the nature of the regime with which it is dealing. 
This is melodrama, and deliberately misleading in the overall light of the article. Yes, there are risks and unknowns in any course of action. But the risks of this deal are not more “huge” than the risks of no deal. Surely, the nature of the Iranian regime going forward will greatly affect the course of events, just like the nature of governments in Washington D.C., and Jerusalem, and Saudi Arabia, and Iraq will greatly affect future events. But these risks have nothing to do with a nuclear threat, or Hitler, or Jewish anxieties.

Goldberg is right in his support of the deal this time, but he is wrong for throwing sand into the gears of this deal in the service of an obscure and misleading apologia for “Israel’s well meaning (but misguided) supporters.”