Sunday, April 23, 2017

Drawing the Wrong Conclusions from Yom HaShoa



Today at sundown, and again tomorrow at 11:00 a.m., horns will blare all over Israel and traffic will come to a stop. Places of public entertainment will be closed by law and all news will focus on commemorating the Holocaust, Yom HaShoa.

In 2014 we spent Yom HaShoa on Kibbutz Ya'acov Ashdot on the Jordan river, just below the Sea of Galilee. We halted our gait out in the banana groves as the horns sounded. Afterwards kibbutz members put on a play in the community center. We didn't understand a word, but the evening was quietly respectful for those who were lost.

Out on the freeways it's less private. Out on the freeways, in the cities, at the airport, it's a celebration that gets in the face of Arab citizens (20 percent of the population) and tourists like us. There is tension and defiance in the lone truck rumbling down the less traveled portion of the road in the video above.

For Jews around the world it's a time to somberly reflect on the enormity of the loss suffered by European Jewry in World War Two, even as the Holocaust is slipping from living memory. Eighty percent of Jews world-wide were born after 1957; in Israel 89 percent of the Jewish population was born after 1953. A few have parents who remember. Everyone has grandparents, great uncles, and great aunts who were touched by the tragedy. There are known names.

At Yad Vashem they try to gather the names and stories of all six million who perished. It's a worthy project to commemorate this lost world, to try and understand what went wrong, to teach lessons about how we might prevent future inhumanity of such magnitude. It may be a futile task.

At the United Nations they observe International Holocaust Remembrance Day on January 27 each year, marking the liberation of Auschwitz-Birkenau. They designate specific themes, attempting to focus on collective experiences and to draw lessons about universal human rights.

In England, the former Chief Rabbi of the United Hebrew Congregations of the Commonwealth (1991-2013), Lord Jonathan Sacks, draws all the wrong conclusions. He equates talk of universal human rights with anti-Semitism. In his view, we recall the Holocaust because anti-Semitism is eternal and to remind us that the Jews will always be the scapegoat of the world. Rabbi Sacks sees no universal lessons for humanity in the Holocaust other than "don't criticize Israel."

"When bad things happen to a group," says Sacks, "its members can ask one of two questions: 'What did we do wrong?' or 'Who did this to us?' The entire fate of the group will depend on which it chooses," he says.  If it asks, "What did we do wrong?" he correctly observes, "it has begun the process of healing the harm. If instead it asks, 'Who did this to us?' it has defined itself as a victim. It will then seek a scapegoat to blame for all its problems."

The irony, of course, is that Israel very much defines itself as a victim. It defined itself as victim in 1947-48, it defined itself as victim in 1967 and 1973, and it has done so throughout 50 years of occupation. The irony seems to be lost on Rabbi Sacks. Instead of asking the question and looking inward Rabbi Sacks looks for a scapegoat: talk of universal human rights is anti-Semitism he says.

The reason Israel is criticized, he asserts, is anti-Semitism is timeless.  For a thousand years Jews have been the most conspicuous non-Christian minority in Europe and so suffered from anti-Semitism, and today, because Israel is the most conspicuous non-Muslim country in the Middle East, it suffers from anti-Semitism. "The argument is always the same," says Sacks. "We are innocent; therefore they are guilty. Therefore if we are to be free, they – the Jews or the state of Israel – must be destroyed. That is how the great evils begin."

But Israel is rightly criticized for 50 years of occupation: for 50 years of keeping most of the Palestinian people under military jurisdiction, without civil or political rights, without access to civilian courts; for 50 years of demolishing homes without due process of law, destroying olive groves, appropriating water, and land; for 50 years of killing Palestinians at a rate of 6:1. 

We can be critical of Israel, says Rabbi Sacks, but we can't use talk of science, religion, or human rights to do it--because that's anti-Semitism. It's the wrong lesson to draw from Yom HaShoa. 

Monday, April 17, 2017

Using Participles to Get at Religious Truths

As Jesus was going up to Jerusalem, he took the twelve disciples aside, and on the way he said to them, “Behold, we are going up to Jerusalem and the Son of man will be delivered to the chief priests and scribes, and they will condemn him to death, and deliver him to the Gentiles to be mocked and scourged and crucified, and he will be raised on the third day.” – Matthew 20:17-19.

Now after the Sabbath, ... Mary Mag’dalene and the other Mary went to see the sepulcher. And behold, there was a great earthquake; for an angel of the Lord descended from heaven and came and rolled back the stone, and sat upon it. His appearance was like lightening, and his raiment white as snow. And for fear of him the guards trembled and became like dead men. But the angel said to the women, “Do not be afraid; for I know that you seek Jesus who was crucified. He is not here; for he has risen, as he said. . . . So they departed quickly from the tomb with fear and great joy, and ran to tell his disciples. – Matthew 28:1-7.

On the first day of the week (after the crucifixion) at early dawn, they (the women who had come with Jesus from Galilee) went to the tomb, taking the spices which they had prepared. And they found the stone rolled away from the tomb, but when they went in they did not find the body. While they were perplexed about this, behold, two men stood by them in dazzling apparel; and as they were frightened and bowed their faces to the ground, the men said to them . . . “Why do you seek the living among the dead? Remember how he told you, while he was still in Galilee, that the Son of man must be delivered into the hands of sinful men, and be crucified, and on the third day rise.” . . . [And the women spent the day with Jesus, broke bread with him, and ‘he interpreted to them in all the scriptures the things concerning himself.’] And their eyes were opened and they recognized him; and he vanished out of their sight. . . . And they rose that same hour and returned to Jerusalem; and they found the eleven gathered together and those who were with them, who said, ‘The Lord has risen indeed, and has appeared to Simon!” --Luke 24:1-34

Then he led them out as far as Bethany, and lifting up his hands he blessed them. While he blessed them, he parted from them, and was carried up into heaven. And they returned to Jerusalem with great joy, and were continually in the temple blessing God. –Luke 28:50-53.
 
Matthew and Luke had their grammatical verb tenses straight. They were telling a chronological tale of physical resurrection witnessed by the two Marys (Matthew), or the women who had come with Jesus from Galilee (Luke). “He will be raised” predicted Jesus, referring to himself in the third person; “he has risen” said the angels to the two Marys staring at the empty tomb, “go quickly and tell the disciples that he has risen;” and “the Lord has risen” said the disciples.

So what’s up with “He is risen?”

This weekend my Facebook feed was full of the celebratory greeting “He is risen.” “He is risen, indeed,” is the expected response. My daughter noticed the phrase  "The Lord is risen" on a church marquee and asked about the odd sentence structure. She is studying to become a teacher, and all of a sudden she worried about having this question pop up on her grammar exam. 

What is the grammatical form of "risen" here, and what is being said?

It's like "Eureka, the dough is risen" I offered unhelpfully. Is that really likely to be a multiple choice option on the exam? 

In thinking about dough, I suggested, “It is risen” does not seem to refer to a chronological event in the sequence of baking bread, but to a metaphysical state of the dough as risen, or not risen. It's like a mother (sarcastically) saying to her teenage son: "he is risen." The mother is not referring to the act of her son getting his butt out of bed, but to his metaphysical state of "sleepy head vs. up and active." 

“You are on the right track” suggested one of my Christian friends. “Risen is His state of being.”  My sister, who knows about these things agreed. “Keep in mind that ‘risen’ can be used both as a verb and an adjective,” she said.

“Risen” as Adjective

Participle we call it. “Risen” in “He is risen” is used as a participle. A "participle", says Websters is: "a word having the characteristics of both verb and adjective; especially an English verbal form that has the function of an adjective and at the same time shows such verbal features as tense and voice and capacity to take an object."

"Risen" modifies "He." It's a past participle in this case because it uses the past tense of "rise."

Not a Verb Form: perfect tense and continuous (imperfect) tense

The passages from Matthew and Luke, above, are using “risen” in its verb form. “(I) will be raised on the third day”  predicts Jesus in Matthew 20.  “He has risen from the dead” confirm the angels in Matthew 28. “The Lord has risen” agrees Luke 24. They are all telling a literal, chronological tale. They are referring to the action of rising from the grave.  They are using the perfect tense--signifying this rising was completed at a definite time (three days after Jesus died on the cross). The perfect tenses of "to rise" are: a) he arose, b) he arises, or c) he will arise (past, present, future). Those are the tenses being used by Matthew and Luke.

The continuous (imperfect) tense of the verb form "to rise" is used to speak of actions that continue for a period of time. If we use the progressive form for the verb, we get: "He was rising," "He is rising," or "He will be rising."

The church marquee “The Lord is risen” is not using a verb tense of rising: it's all participle.

So what’s in a Participle?

Because the marquee’s "risen" is used as a participle, the sentence is not speaking about the act of rising at all. The marquee is not telling the literal, chronological tale that Matthew and Luke tell. The marquee is using the present "is," so the sentence suggests we are dealing with Jesus's present state of being. And what is that state?  He is in a state of "being risen." The marquee suggests that Jesus is not dirt in the ground like all those other folks who lived ~1987 years ago. He is part of the godhead. 

It's 2000 years later later and we are no longer using verbs to tell literal tales of resurrection.  We are using participles to communicate more ephemeral religious ideas. 

Follow me on Twitter @RolandNikles

Sunday, April 16, 2017

Cabo Dreamin'

Cabo/Dorothy Connelly
My friend, Dorothy Connelly, drew this on a recent visit to Cabo San Lucas.  The Los Cabos area, I read, has recovered since it took a direct hit from hurricane Odile in September 2014. With winds of 125 mph, the hurricane demolished hotels and houses, forced the evacuation of 30,000 and killed five. There was widespread looting for days. It has also grown since I last visited. The southern tip of the Baja peninsula now boasts a population of 238,000 (2010 census).

We last visited there in 1986, arriving the old fashioned way, by sailboat, an outmoded form of transportation as Ted Turner has pointed out. Today the thought of flying there seems to me like taking the gondola up a mountain you once climbed. It's just not the same thing, and I'm not tempted.

As we rounded the corner from the open  Pacific in 1986, Humpback whales were breaching off the beach, magnificent frigate birds soared over the arch outside the harbor, and Pelicans frolicked around the returning Marlin sport-fishing boats. The harbor was still a relatively sleepy place. It was a time when elite sailors and Sea of Cortez cruisers shared a recognizably common world. The population of Cabo San Lucas was less than 20,000; today it tops 90,000.  Like parents dying, grandkids being born, and retirement parties, these are signs of time marching on.

Our boat, a 35 foot Wauqiez Pretorien, was a solid craft. It shared approximately everything, except size, number of crew, and expertise, with Ted Turner's Tenacious, the boat that won the tragic 1979 Fastnet race. Today, the world of Sea of Cortez cruising shares approximately nothing with the world of elite sailing.

Here is some interesting footage from Turner's Fastnet adventure. It's closer to my Cabo dreams than tequila and cerveza at poolside . . . .

Saturday, April 15, 2017

Dreaming about more civilized Domestic Travel

Matt Yglesias has a very good primer on why air travel is so miserable these days. The key is cost: airline travel per mile has gotten very cheap, and when faced with a choice of paying for better service, most of us opt for cheap and uncomfortable.

Take a look at this chart of airline cost/mile since 1979:


Today we pay less than half what we paid in 1979. And we get less: no meals, narrower seats, less seat angle, less reclining, less leg-room, oversold flights, less overhead storage.

We are more stressed than we were in 1978: we are exposed to jostling, coughing, and germs being spread in tighter and tighter spaces. Is this any way to live?

There are only two ways of improving the situation: paying more, or finding a source to subsidize air-travel.

Even many of us who could afford to pay more, opt for price over quality. We do it despite ourselves. I sometimes purchase Economy Plus on my United flights to Vancouver, but usually I don't. I can stand the cramped seating for the two and one half hour flight up the coast, even as I grit my teeth. It's like a crowded Muni ride to downtown. Unpleasant, but it moves a lot of people for cheap.

The airline deregulation act of 1978 (signed by President Carter) freed carriers to choose which markets to serve and what to charge on routes. It also permitted new carriers to enter the market more freely. The result has been the race to the bottom--in terms of service and price--reflected in the graph above. We've put up with it because there are more flights, travel is safe, . . . and it's cheap.

The government (USDOT) currently subsidizes approximately 175 routes to underserved locations (to the tune of $200/ticket), that would otherwise be unprofitable and underserved by the airline industry.

Cheap flying has opened airline travel to the masses. To be crudely classist and rude, it has made our airlines to resemble third world chicken buses.  That's a good thing because the masses have travel needs and they should be able to vacation and visit family across the country. In this modern, interconnected world, we need inexpensive ways to move people long distances efficiently.

But it raises the question whether airplane travel is the best way to do this? I took the train from San Francisco to Glenwood Springs this winter.  The price for a sleeper room was the same as flying, but the trip was a much more civilized way to travel. There was lots of leg-room, you make real connection and friendship with fellow passengers, there's decent food, and a sleeper car.  It was not very efficient.  The nominally 25 hour trip took more than 30 hours each way. If you want to take four days off work to go skiing in Aspen, it won't be how you travel. But if we decided to invest in connecting our cities with modern, high-speed train service, it would be a different story.  Imagine . . .

Might we not better connect those marginal, out of the way places that are currently subsidized by "Essential Air Services Program," by connecting them to a modern high-speed rail system that truly connects the country. Trump has talked about taking on an infrastructure program to stamp his presidency. Why not a new high speed rail network on the scale of what we did with interstate highways in the 50's and 60's?

Imagine this:

Imagine regular train service connecting Louisville Kentucky and New York in seven hours--in comfort. No taking off your shoes, no getting dragged down the aisle by police goons because seats are oversold? Good food, service with a smile, time to interact, and space to work.

It would require prioritizing a large portion of government expenditures for such a project. Is it beyond us?  Ask John Culbertson (R-Texas), he wants to put people back on the moon and explore Jupiter's moon Europa. If we can dream about space missions to Europa, if we can afford to spend $4-6 trillion on Mideast adventures (The Hill reports a study on the cumulative cost of our wars in Iraq and Afghanistan), why can't we dream about a more civilized way to move lots of people around the country?

Follow me on Twitter @RolandNikles.

Sunday, April 9, 2017

Martin Scorcese's "Silence:" A Meditation on the Mysteries of the Human Spirit



Silence
a film by Martin Scorsese
starring Andrew Garfield, Adam Driver,
Tadanobu Asana, Ciaran Hinds, Issey Ogata, and Liam Neeson.
(rel. in U.S. 12/23/16)(avail. Netflix streaming)
running time: 2hrs 41 minutes

Inigo Lopez de Loyola (1491-1556) was a courtier, a soldier, and a dandy, before devoting his life to asceticism and God. At age 30 a cannon ball ended his military career and Loyola embarked on a religious education. He began with an ascetic regimen in a cave in Catalan that later formed the fundamentals of his Spiritual Exercises. After a brief visit to the Holy Land, Loyola completed a course of primary studies in Barcelona, followed by 10 years of latin and theological studies in Madrid. He received a Masters Degree from the University of Paris in 1534, and there, with a group of six companions, he founded the Society of Jesus (the Jesuit order). At Montmartre they took a vow of poverty and chastity and promised obedience to the pope. Two of these co-founding Jesuits in Paris were Francis Xavier (1506-1552) and Simao Rodriquez (1510-1579).


The Jesuits tried to convert Japan to Christianity, but they failed utterly. In 1549 Francis Xavier was the first missionary on the islands and he could not have had much of an impact. Xavier and his three companion missionaries, arriving with Portuguese merchants, did not speak the language. They and their lone Japanese guide (Anjiro) were granted only limited access to the population, and by 1551 Xavier departed. He made a last voyage from Gao (India) to Shangchuan Island (SE China), accompanied by a young Jesuit student, Alvara Ferreira. And there he died.

Shusaku Endo's novel of historical fiction (publ. 1966) is set nearly a century after Francis Xavier's initial visit. Martin Scorcese's film adaptation is populated by characters whose names evoke this founding Jesuit generation.

The film opens in 1639, at St. Paul's college in Macao, where an Italian Jesuit priest receives word that a missionary in Japan, father Cristovao Ferreira, had publicly abandoned and renounced his faith under torture. Two former pupils of Ferreira, Sebastian Rodriguez and Francisco Garupe, are shocked and set off to find him.

Nagasaki harbor
It was a dangerous mission. A lot had changed since Francis Xavier initiated missionary work in Japan 90 years before. The missionaries found brief success. In 1562 they succeeded in converting a feudal lord, Omura Sumitada, whose domain included the harbor at Nagasaki. With Portuguese guns and support Sumitada grew powerful and helped to destroy Buddhist shrines and nominally convert much of the population of western Kyushu to Catholicism. By 1570 there were 20 Catholic missionaries in Japan. By 1580, they say, there were 200 churches serving 150,000 Catholics. But success was short-lived. By 1587 Sumitada was dead of tuberculosis, Japan was being consolidated under Toyotomi Hideyoshi (1537-1591), and Christian missionaries were banished from Kyushu. In Nagasaki, on February 5, 1597, 25 Christians were publicly crucified, including five Franciscan missionaries and three Japanese priests. By 1620 the Tokugawa Shogunate banned Christianity from the Islands altogether, and persecutions continued. 205 Christian missionaries and converts were executed for their faith between 1617 and 1632. The remnant of Christianity went underground.
"Martyrs of Nagasaki" (1628 engraving/artist unknown)
In the film, fathers Rodriguez and Garupe are guided by Kichijro, an alcoholic exiled Japanese fisherman whom they find in a Macao back alley. Kichjiro secures passage on a merchant ship heading to, perhaps Nagasaki, and he leads the priests to a desolate seaside village. There they find an underground Christian community that welcomes them like they are fresh from an audience with the Messiah. 

The villagers, as well as Rodriguez and Garupe, endure increasing hardships as the Shogunate closes in on them. There is torture, anxiety, fear, crucifixions in the ocean, hanging upside down over a pit of excrement with a small incision in your neck, drownings, and through it all a great stubbornness not to renounce faith. It's an entirely unreasonable stubbornness; like those early Christians were stubborn in the Forum. It's a mystery of faith why these simple seaside villagers would endure such tortures and pressures rather than abjure. But it's a recognizable stubbornness. "No one should interfere with another man's spirit," says one. 

The demand of the state, led by a wise and majesterial inquisitor, played by Issey Ogata, is so simple: step on the fumie, a copper plate with an image of Christ engraved on it. The Inquisitor went out of his way to make it easy for them: they did not have to say anything. A mere formality, suggests the Inquisitor; it doesn't have to mean anything.  The Inquisitor did not seek to humiliate, he only sought the simple act of stepping on the fumie. Why does it mean so much? 

Kichjiro guides the priests, he orients them in the land, keeps them hidden, translates for them, and ultimately betrays them. He is the Judas figure in the story. He is tormented by guilt. He stepped on the fumi, and he did so repeatedly. His weakness in accepting the gesture of stepping on the fumi, racks his conscience. The stubbornness and resolve of his family who did not haunts him. He paid the price of recanting in remorse, guilt, and shame--and yet he, more than perhaps anyone--never lost faith. He stepped on the fumi, he renounced but he never could shake his faith. 

And there is a mystery of what that faith is that makes Kichjiro suffer so. What does Kichjiro believe? What did these simple villagers taught by priests who did not share their language believe? What did they grasp about Christian culture, much less dogma? What was this "faith" to which they clung so fiercely? As Paul Elie points out in a fine essay in the New York Times, when Rodrigues finally meets Ferreira, he says: "The converts? . . .  "They are breakaway Buddhists; . . . they worship the 'Sun of God,' not the Son of God. Those martyrs, dying upside down in the pit? They didn’t die for Christ, he tells Rodrigues, they died for you."

But I'm not so sure. They died for the human spirit, a mysterious thing. 

Ferreira went native. He renounced under torture and made his peace with it. He took on a Japanese wife and children. He continued to study and contribute to Japanese culture by translating scientific tests (am I remembering that right?) Rodrigues, too, finally succumbs to the Inquisitor. He makes his peace and becomes an administrator for the Shogunate, inspecting trade items from the Dutch East India Company for Christian iconography. Yet, there is doubt, the suspicion that both Ferreira and Rodriguez continue to adhere to their faith. 

Silence cost $40 million to produce. Through mid March 2017 it has earned just $16 million. Like Scorcese's 1988 film The Last Temptation of Christ, the investors of this film will have a hard time recouping their investment. It's an ill deserved fate for this beautiful and thoughtful film.  

So stream it, buy it, get it from your library, or catch in a theater if you can, but take a look at Silence. 

St. Pierre de Montmartre, Paris
where Jesuit order began



Wednesday, April 5, 2017

"The Status Quo in Israel is as Good as it can Get, but It's Immoral"

Larry Derfner has a new book: No Country for Jewish Liberals, launched by Just World Books this week. He means Israel. Gilad Halpern interviewed him yesterday on Facebook in Tel Aviv.  Larry observed that sometimes intractable political problems need outside help: if it were left up to the Whites in South Africa, Apartheid would never have ended; if it were left up to Southern Whites, Jim Crow would never have ended.

Listen to the Halpern interview for the four minute stretch 34:22--38:22. Gilad and Larry are exploring a mystery: why is it that in the age of Netanyahu there is no active, much less effective, counter-movement in favor of the Two State Solution? The answer, they suggest, lies in the fact that the status quo--50 years of occupation and counting--is the best possible solution for Israel from a cost-benefit standpoint. For Israelis today, the status quo is as good as it can get. "The economy is doing very well, there is a minimum of terror, the Americans love us," says Larry.  "We are not paying any price for the occupation." Gilad agrees: "The Left has been reduced to this position of bleeding hearts: the only people who really care about  . . .  giving Palestinians their rights are those who feel morally guilty that the occupation exists, that there are people in Palestine that live without their basic rights—and those people are very, very few."

The only objection to the status quo, if you are a Jewish Israeli, is a moral objection! The only objection to the occupation if you are an American Jew is a moral objection. Think about this next Monday, at your Passover Seder. The only reason the rest of the world should care about this Jubilee year of the occupation is because of the moral oppression inherent in the occupation. It's the same reason we should care about our immigration issues in the United States.

Morality may make us uncomfortable, but it does not motivate sufficiently to change the situation. Israel needs outside help, suggests Derfner.

Noam Sheizaf, speaking at the Kehilla Community Synagogue of the East Bay in the San Francisco Bay Area last Friday made the same point: Israel will not change its occupation without outside help, and the most obvious outside "help" to be had is the United States stopping to run interference for Israel at the UN, says Sheizaf. Are you listening Nikki Haley?

Sheizaf elaborated on why, among the available choices under discussion for peace in Israel/Palestine--(a) the one state solution, (b) the two state solution, and (c) the status quo--the status quo is the most attractive option from a Jewish perspective. Sheizaf, Derfner, and Halpern are reading from the same Siddur. The status quo is the best option from the Jewish Israeli perspective; the status quo is immoral; and morality doesn't hold a candle to rational self-interest.

The Risks of a One State or Two State Solution

Sheizaf:  "I want to explain something . . .  which has to do with the Jewish public. Since the Jewish public has the assets and has the sovereignty, the keys are in the Jewish public’s hands. It takes an Israeli decision to end the occupation. There is no way around that. And despite the fact that everyone understands it takes an Israeli decision, and not a Palestinian decision, to end the occupation, the political interventions that we keep reproducing don't recognize that fact. They look at both parties. But it takes an Israeli decision to end the occupation. 
"There are many explanations why an Israeli decision to end the occupation has not been forthcoming. Some have to do with fear of existential violence, but I want to offer the political thought which has to do with choices. With political choices, and choices the Jewish public makes. 
"Let’s think about the options that Israeli Jews face. . .  Israeli’s are told—by Obama and everyone else—you either choose the two state solution, or the one state solution, and the one-state solution will be the end of the Jewish dream, the end of Israel. And this may be good or bad, depending on your perspective. But that is what we are told. Because we are not moving towards a two state solution, we are moving to a one state solution. 
"The problems with the one state solution in the Israeli psyche are clear. The . . .  one state solution—meaning giving equal citizenship to everybody on the ground—would mean a reshuffling of everything. The Palestinians might not like being absorbed into the state of Israel, but every Palestinian acknowledges they will use their rights if they get them to change the nature of the state: to redistribute the assets, the ground, the physical assets, the political assets; they’ll redistribute them to create a one state solution. Whether it will still be called Israel or something else is up in the air. Nobody knows. It will be a reshuffling of the entire system. 
"If you’re the privileged group that holds all the assets, and all the political rights, this is the scariest thing you can be thinking about. The one thing we know about the one state solution is we don’t exactly know how it will behave after it’s implemented. We don’t know what the relations between Jews and Palestinians will look like. Will they be peaceful or not? Will the redistribution of wealth and assets work, or not. We know nothing about that. So in the Israeli mind this one state solution is probably the worst outcome, because it’s the big unknown. 
"But let’s look at the two state solution, which is the solution that the international community has supported, and that both publics, at least in theory, support. The two state solution for Israelis is still not a simple thing. It will mean a big internal controversy, some would say a civil war within the Jewish society. Every politician who tried to evacuate some parts of the West Bank in Israel lost his job as prime minster, and one time his life. Olmert fell from power, Rabin was murdered, and Sharon had to break his own political party, the Likud. So politicians see the personal cost of this type of political debate about leaving the West Bank. 
"And to be completely honest, the Israeli fears of what will happen post two-state solution are grounded. Nobody knows what will happen in the relation between Israel and Palestine the day after. There can be all manner of commitments. But that’s all true on the moment when you sign the agreement. Nobody knows what will happen after that. The point about giving Palestinians sovereignty over their state is that they can do whatever they want with it. That’s sovereignty. Nobody can dictate that the moderates will rule. And Israel understands this. There is the chance for violence. There is the chance for internal violence between Jews. There is the external violence that can come with a solution. So this solution might not be as costly as the one state solution, but it is still an enormously costly solution. 

The Status Quo is Rational 

"But the thing that is unspoken in the media, and in the political process that accompanies it, in all the international interventions—the European and the American—is that there is a third option. There is always another option. The third option is the status quo. The third option is to maintain things as they are. And if you’ve been to Israel lately, it’s not such a bad option. The economy is fine, security is fine. 
"It’s not the best of all worlds. Even if you go to Israelis who support maintaining things as they are, they will tell you, "we would like not to have the occupation." I heard that from Dani Dayan, the UN Counsel General in New York. He is a settler, but as a young person he didn’t travel to South Africa because he was boycotting Apartheid. And he says he doesn’t like the occupation. He acknowledges everything that come with it, and it troubles him. And I believe him. I really believe he is an honest man. 
"Israelis might say it is not the perfect solution, but in terms of rational choice, of what costs us more, and what gives us more benefit, there is simply no doubt that maintaining the status quo is the best solution from the Israeli perspective. And we are not talking about the values of good and bad, or evil. I’m not making any moral judgments here. I’m just looking at what a politician might pay if he chooses one of the solutions, the one state or the two state, as opposed to if he chooses the status quo. 
"I’m also talking about what a person in the street might feel, in terms of his own personal security in a one state framework, a two state framework, and in a status quo framework. And everywhere I examine it I would say that the status quo comes in first. The status quo is the best option as far as the Jewish public is concerned. People may argue, as I do, that in the long run the status quo might be the worst option, but political choices are never made in the long run. And there are good reasons for that because reality and political relations are fluid, and you don’t know what will happen. So you make plans for five-ten years. And for the foreseeable future, the status quo is better for Israeli Jews.

 And so Jews are left with a Moral Choice

"This also should be common sense, but it is never referred to because the deep meaning of what I’m arguing is that your personal interest, your deepest interest as a citizen, as a parent, as a mother and a father, the deep political interest is inherently immoral. And what do you do then? 
"I think this is what is at the root of the famous Israeli anxiety over where we are and where we are heading, and the anger over intervention from the outside. And this is why pointing the finger and saying if you don’t implement a two state solution, you’ll end up with a one state solution doesn’t work. Israelis understand the situation perfectly well and they make rational choices. And the rational choice in the short to medium term is to maintain the status quo. And this is why we’ve elected the person whose whole persona, whose whole political existence, is a fabulous talent in maintaining the status quo, despite all sorts of pressures: pressure for war and pressure for peace. . . . 
"Palestinians will never consent to the occupation and maintaining people without rights. It’s simply about control. It’s about controlling people without rights; locking them in the same situation for more, and more, and more years. And I think some of the things that we put a spotlight on, like the tiny settlement here and the appropriation of land there, misses the essence of the story. The essence of the story is about control, about keeping people without rights, by force, for decades and decades. 
"And if you look at the West Bank right now . . . . if you traveled in the 60’s to the West Bank, or in the 70’s, and even the 80’s. . . the place today looks very different. It looks more and more like a prison, the West Bank: it’s surrounded by walls that are 10 yards high, and watchtowers, and there are cameras everywhere, in separate rows, all aimed at maintaining the situation on the ground (indefinitely), with the least possible violence, the least possible problems. 
"Maintaining the status quo; maintaining people under control without rights for more and more years, until something happens. And I think this is the essence of the occupation in the post Oslo period. Not the settlements, not anything else. It’s about maintaining people without rights under control."
And if we care about changing the status quo, Sheizaf ends on a pessimistic note:
"Ten years ago this was such an anomaly in the international system, the idea that half of the population under a certain sovereignty (has no effective say), that one third of the population does not enjoy the rights and benefits of the political system, that it’s a democracy for this and not a democracy for that, that these can participate, and those are held through force, that these are held through consent and are patriotic while those are held at gun-point . . . . This is such a bizarre situation in the international system that I thought it cannot hold; it cannot hold. 
"There was a sense of inevitability about the occupation (that it would end) in the 90’s, and even during the second Intifada because we looked at the suicide bombings and we said “this is a product of the situation,” and the situation cannot hold. But when I look at the world today, I see more and more places where people are held without rights, and you see more and more walls and watchtowers everywhere in the world. And you see more and more democracies thinking about how can we hold these refugees, or these countries that we’ve gotten into everlasting wars with, how can we hold it, this unnatural situation where people are being held by force without rights for longer and longer. How can we maintain it? 
"And I don’t believe in this inevitability any more." 
Follow me on Twitter @RolandNikles

Thursday, March 30, 2017

The Pomegranate: from Meir to Soloveichik


On March 5, 2017 our Talmud Circle finally reached the long anticipated pomegranate on page 247 of our Steinsaltz, Berakhot 36a. And, of course, the pomegranate graces the front cover. Why is it there? “The fruit is hidden,” suggested David Berlutti in class. “You read this book and it gets revealed.”

The pomegranate is just past its season, typically September through February in the Northern Hemisphere. It has been cultivated in Persia and throughout the Mediterranean basin and India for thousands of years. It appears on coins uncovered from temple times.

God spoke of it. “And you shall make holy garments” for my priests, God instructed (Ex. 28:2). “Make the robe of the ephod all of blue,” he said. “On its skirts you shall make pomegranates of blue and purple and scarlet stuff, around its skirts, with bells of gold between them, a golden bell and a pomegranate, a golden bell and a pomegranate round about on the skirt of the robe.” Ex. 28:31-33. God was insistent about pomegranates.

Solomon listened. He had the pillars of his temple engraved with pomegranates (1 Kings 7:18).  “Behold, you are beautiful,” he cooed. “Your eyes are doves behind your veil . . . your cheeks are like halves of a pomegranate” (Song of Solomon 4:1-3). They say he designed his crown after the pomegranate’s crown.

The Uncircumcised Fruit

The pomegranate fruit is a berry with its inedible outer husk protecting hundreds of luscious ruby red juicy seeds. The number of seeds can vary from 200 to 1400, but by Talmudic tradition there are 613 seeds: one seed for each mitzvah.

The pomegranate is mysterious, holy like the womb, like Leonard Cohen’s Hallelujah. It is orla: it generally takes three years to produce edible fruit. Orla is also that which conceals something else. It is uncircumcised fruit. We must remove its husk like the foreskin from a penis.

In Kabbala, they say that, like the seeds of the pomegranate, God’s presence in the world is often concealed from our eyes and we have to find it. Jacob wakes from his dream and says “Surely the Lord is in this place; and I did not know it.” (Genesis 28:16) It’s a huge move, says Peretz, from idol worship—which is evident, on the surface—to the idea “I was dreaming and my head was on the ground, and God was here and I did not know it” (until I perceived it). To discover that which is hidden involves a mystical journey. And you can get to it, like opening a pomegranate.

Why do we say 100 blessing a day? The commandment is not hidden on a mountain, or on the seas, or in the stars; where is it that this comes from? It’s in us. That’s the revolutionary move of Deuteronomy is what I heard Peretz say. It’s all in us, and we have to find it: in our mouths, like pomegranate seeds.  Torah runs with this idea, says Peretz. It’s what Heschel meant when he said “When I pray I talk to God, when I study, God talks back to me!” When God says "Build me a place among you” he really means “in” you; in us.  The journey produces the change. If we say Brakhot it will have an effect.

Orla is a fruit which needs three years for the interior to ripen. It is that which conceals something else. Lemons are orla, but the pomegranate is the ultimate orla. It is message laden; metaphoric. That’s why it’s on the cover of Talmud. That’s why it’s all over Jewish art. 613 seeds and full of mitzvoth. The seed of life. The tree of knowledge—the Hebrew word used in Genesis for the apple in the tree of knowledge of good and evil is ta-poo-ah, which has been rendered as apple in the Greek and Christian traditions, but which could also be rendred as pomegranate. The pomegranate, of course, is one of the seven species.
 
The Seven Species
Aside 1: When next you visit the West Bank to check on the occupation, and a young IDF soldier asks you “What’s in your backpack?” don’t look in your phrase-book for the translation of pomegranate (“rimon”) because “rimon” also means “grenade.”

Aside 2: Pomegranates are hard to open. You need a big knife and newspapers to contain the mess. “Yes, it’s the messiest fruit on earth,” confirmed David Berlutti. You need expertise to open it and get at those gorgeous, juicy, ruby red seeds. It’s a metaphor for hard study, says Peretz.  And it’s erotic because it looks like a womb; a well impregnated womb.

Aside 3:  An image of the womb in Kabbala: it’s the kindest place you ever were at: cared for unconditionally and you never had to say thank you. 

The pomegranate: open it and there is life. 

The Pomegranate and learning from neo-Kantian Liberalism

“How could Rabbi Meir learn Torah from the (filthy) mouth of Acher (Rabbi Elisha ben Abuya)?” So wondered the rabbis in Talmud Chagigah 15b. How indeed? Acher, born sometime before 70 CE, flourishing late in the first century and early second century, was a notorious Hellenist. This was frowned upon. “The lips of a priest ought to preserve godly knowledge,” say Resh Lakish and others. After all, a priest is the messenger of God, and how can we trust this messenger if he spends his days thinking about new fangled Greek ideas, much less speaking of them? 

But Rava came to Rabbi Meir’s defense. “I descended to a chestnut garden, to see the buds of the wadis,” says a beautiful line from the Song of Songs. “We all know that wadis are muddy, full of excrement . . . yet there grow the beautiful buds,” suggests Rava. “And there, do we not also find chestnuts, and dates, and even pomegranates? And we think of the chestnut: just because it is smeared with mud and excrement, what is inside does not become disgusting.”

“Yes, and we can eat the date, yet discard the pit,” adds Rav Dimi.

Rabbah bar Sheila went to find Elijah the prophet, that whimsical figure who sits suspended half-way between heaven and earth. “What’s God up to?” asks bar Sheila.

“God is having a discussion from the mouth of all the rabbis,” says Elijah, “but he is not including anything from the mouth of Rabbi Meir (because he fraternized with Elisha ben Abuya the Hellenizer!).”

But bar Sheila’s not buying it: not from Elijah and not from God! “Why on earth would God not repeat anything from the mouth of Rabbi Meir,” says Sheila. “Rabbi Meir is a good guy!”

“Because he learned from the (filthy) mouth of Acher,” says Elijah.

“Tell God when he is having a discussion from the mouth of all the rabbis, He should include Rabbi Meir,” says Sheila. “Rabbi Meir found a pomegranate; he ate its inside and disposed of its rind!”

You gotta love the spirit and playfulness of this passage (paraphrased) from Talmud Chagigah 15b that Peretz brought to class . . . .

Aside 4: Rabbi Meir is very prominent in the Talmud. He was the teacher of Judah HaNasi, the redactor of the Mishna in Zippori. He was married to Bruriah, one of the few women scholars mentioned in Talmud. Meir was a student of two polar figures: Akiva and Elisha Ben Abuya.  Abuya pursued rationalism; Akiva Talmud. Milton Steinberg’s novel, “As a Driven Leaf” (2000) is built on the stories of Akiva and Elisha Ben Abuya.

Aside 5:  This Rabbi Meir story is a typical Talmudic homily: the rabbis of the Talmud know all these characters. It begins with a rhetorical question:  How could Meir learn Torah from Acher (Elisha ben Abuya)? Malachi 2:7 refers to the priestly benediction: in synagogue, when a Cohanim is brought forward, he covers his face, takes off his shoes—he is the messenger of God.  He has only restricted speech.  He can’t say “other things.”  He should only be quoting Torah, not spouting Plato. 

Aside 6.  Talmudic writing: Talmud plays with what’s before and what’s after. This story presents a good example of this. The rabbis and God and Elijah are having a conversation out of time. And Talmud uses Greek forms: parables (stories), parabolic plots (twist endings, surprise), hyperbolic statements (overstatement), rhetorical questions, homilies (lessons inserted). At some level they are all Hellenists. Every once in a while you have archival elements that bring back hidden memories. Sometimes a collection of stuff broken down. 

And, of course, the rabbis of the Talmud are a product of their time. Although they might (grudgingly) have indulged Rabbi Meir consorting with the rationalist, philosophizing Elisha ben Abuya, they did not see much value in his Greek philosophy. They were willing to overlook it: they did not see value in the pit of the date, the hull of a chestnut, or the shell of the pomegranate. Two millennia later, many are ready to appreciate and learn from the entire pomegranate, not just the seeds.

Joseph B. Soloveitchik (1903-1993) is one of the most prominent 20th century Jewish thinkers. He was a leading Talmud scholar, but he was also steeped in Western science, philosophy, and politics. He was a paragon and teacher in the Modern Orthodox movement and an expert on neo-Kantian philosophy.


The essence of Modern Orthodoxy is faithful (highly knowledgeable, and a bit snobbish?) adherence to Halakha combined with a study and appreciation of secular thought.

Born in modern day Belarus, Soloveitchik descended from a 200 year succession of prominent Eastern European rabbis. His primary education was in a traditional Talmud Torah school, in preparation for Yeshiva studies, supplemented by a private tutor. He graduated from a liberal arts Gymnasium in Dubno—located 200 miles west of Kiev in Ukraine. In 1924 he entered the Free Polish University in Warsaw, and in 1926 he moved on to the Friederich Wilhelm University in Berlin. There he studied neo-Kantian thought and political science, but also kept up a rigorous course of Talmud study.

Like Rabbi Meir, Soloveitchik chose a strong woman and a peer for a mate. In 1931 they had a royal wedding: his wife, Tonya Lewit (1904-1967), had a PhD from Jena University and a pedigree going straight to Rashi!

Through his studies, Soloveitchik sought to bridge the gap between traditional Eastern European Orthodox Jewish scholarship and the forces of modernity in the Western world. In 1932, he and Tonya emigrated to the United States where Soloveitchik made his life in Jewish studies.  For 45 years he headed the Rabbi Israel Elchanan Theological Seminary at Yeshiva University in New York.

During his career at Yeshiva University, Soloveitchik sought to combine the best of Talmudic scholarship with the best of secular scholarship in Western civilization. He published prolifically and was influential on an entire generation of Jewish leaders of the 20th century. His work stresses the normative and intellectual importance of keeping Jewish law (halakhah), and the entire halakhic tradition, central to Judaism.

What would Elijah say? When God is having a discussion from the mouth of all the rabbis, does He include Joseph Soloveitchik?


Saturday, March 25, 2017

Outside Interference in our Democracy is not the Problem: it's Undermining of Democracy by All of Us that Does the Damage

In the United States we are currently investigating whether Russia conducted a campaign to interfere with our elections last November.  FBI Director, James Comey, confirmed this week that an investigation has been under way since last July.  The goals of the Russian activities, we are told, were to undermine the credibility of the U.S. election, to undermine faith in the democratic process, to denigrate Senator Hillary Clinton and her candidacy, and to harm her chances of being elected. 

It is widely reported that the Russians hacked the email servers of the Democratic National Committee and leaked information to Wikileaks in order to harm the Clinton campaign.  The Director of National Intelligence, James Clapper, testified to Congress that the Russian efforts included the dissemination and promotion of fake news, rumors, and fantasies through the use of botnets. 

[A botnet is a network of private computers infected with malicious software and controlled as a group without the owners' knowledge, e.g., to send spam messages, or in this case fake news and rumors to cause political harm]

It's not Foreign Interference that's the concern; it's the Fake News, False Information, and Malicious Intent that Does the Damage

The problem here is not primarily outside interference in our election: the problem is the nature of the interference. If Putin, or any other world leader, wants to take out an editorial in U.S. newspapers and make his case for Donald Trump over Hillary Clinton, have at it. That does not undermine our politics. If Israeli Prime Minister Netanyahu wants to meet with Congress about Israeli issues and Congress sees fit to give him 26 standing ovations, as annoying as this may have been for Obama, this does not undermine our democracy.  But spreading fake news about Hillary running a children's sex-ring from a pizza parlor is a problem (because people are ever so gullible). 

So is hacking legitimately private communications and selectively releasing this information to influence the outcome of an election, or to harm individuals. 

Elections are not a rational process. Tens of millions of voters cast their ballots based on insufficient and erroneous information. Even in an ideally clean election, voter ignorance is a problem. But when voter ignorance is manipulated for partisan purposes by undisclosed actors working in the shadows, this undermines our democracy.  Fake news and malicious intent is a problem whether it's Russia, domestic fat-cats with an agenda, or individual Facebook users. 

When one of our national parties is disproportionately beholden to fake news, it's a problem.  When the most watched cable news network is beholden to fake news, disseminated for partisan purposes and profits, it's a problem for our democracy. 

Putin has pointed to American support of NGOs that support democracy in Russia and in places like Egypt.  But ex-President Jimmy Carter working with NGOs that are involved in monitoring the integrity of elections in other countries is not a problem; supporting NGO's that support democracy in Russia is not a problem. By contrast, engineering coups in Iran (1953) and Chile (1973) are dark chapters that undermined democracy. Outside interference in our elections that supports the democratic process is welcome; interference that undermines the democratic process is not welcome. 

The Russians have interfered in a way that undermines our democracy. But what the Russians have been doing to us is not unique. It comes with the Internet. Other countries systematically exploit social media to support public policy, not always in healthy ways. Using social media for propaganda purposes, we note, is not a truth-seeking activity. Once a state embarks on propaganda efforts, there is risk that truth and analysis can fall by the wayside. 
 
Ultimately it's not the Russians interfering in our elections that's the problem. The problem is the irresponsible use of tools at our disposal, whether these tools are wielded by nation-states or  by individual users of social-media. 

Not all state propaganda is bad. A state should be able to responsibly embark on a propaganda campaign to reduce smoking. In light of the weight of scientific evidence, governments should be able to engage in propaganda to convince us we must do something about global warming, using all the tools at their disposal. A state should be able to advocate for solid democratic practices. Support of public television is a good thing. The danger lies in engaging in propaganda in a disingenuous way.

Democracy can live with a lack of information and with our irrational natures; but democracy can not survive in the long term if integrity and good-will must take a back seat to propaganda and fake news, year after year.

In the United States the Republican party has worked hard to undermine integrity and good-will in our public discourse. For thirty years they have engaged in propaganda that global warming is a hoax, that lower taxes and increased spending will lower deficits, that 4 percent growth is possible if only we remove environmental regulations and cut taxes, that manufacturing jobs will return to the rust-belt if only we build a wall and reject free trade, and cut taxes; that health care for all is possible, if only we stop subsidizing health-care. Such a lack of integrity and good-will is a bigger problem for our democracy than Russian interference in our election. 

Follow me on Twitter @RolandNikles

Monday, March 20, 2017

Your Cell Phone and Computer at the Border Redux


If you decided to send some of your hard earned dollars to the American Civil Liberties Union in the wake of Donald Trump's election, they are putting your money to good use.

A month ago, I looked at the Custom and Border Patrol's assertion of a right to search our phones and computers at the border, even without individualized suspicion. I suggested that in light of U.S. v. Riley (2014), wherein a unanimous Supreme Court held that the police must have probable cause and a warrant in order to search a cell phone incident to an arrest, it seems likely that earlier cases, e.g. U.S. v. Cotterman (9th Circuit, 2013) would be overruled when the issue reaches the Supreme Court.

Today the American Civil Liberties Union filed a friend of the court brief in U.S .v. Kolsuz, pending in the Fourth Circuit Court of Appeals (located in Richmond, VA). The brief asks the court to decide the issue whether Riley applies to border searches. The full brief can be found HERE.

Summary of ACLU Argument in Kolsuz v. U.S.

This case presents an important question about the extent of Fourth Amendment privacy rights in the digital age, where the use of mobile devices is widespread. The government’s assertion of authority to search such devices without any individualized suspicion when an individual is crossing the border—whether entering or leaving the United States—creates an end-run around Fourth Amendment protections that would otherwise apply to the voluminous and intimate information contained in those devices, and is not justified by the rationale permitting routine border searches.

Hundreds of millions of people cross the United States’ borders every year for school, business, pleasure, and family obligations. Large numbers of those travelers carry laptops, smartphones, and other portable electronic devices that, despite their small size, have “immense storage capacity.” Riley v. California, 134 S. Ct. 2473, 2489 (2014) The information on these devices can be deeply sensitive and private, including personal correspondence, notes and journal entries, family photos, medical records, lists of associates and contacts, proprietary or privileged business information, financial records, and more. This information can be stored on the device itself, or contained in cloud-based accounts that are accessible from the device. The Department of Homeland Security itself recognizes that border searches of electronic devices raise “unique privacy concerns,” unlike those inherent in searches of other luggage. Nevertheless, the government claims the right to seize these devices at the border, detain them, and invasively search them with no warrant or individualized suspicion whatsoever.

Given the significant privacy interests at stake and the inconsistent results reached by district courts on this issue, this Court should take the opportunity to clarify the Fourth Amendment standards governing such searches. This Court should hold that searches of portable electronic devices may not be conducted without a warrant or, at an absolute minimum, a determination of probable cause.

This Court should so hold even if it determines that the government had the requisite level of suspicion in this particular case. In light of evidence that the number of device searches at the border is increasing, the failure to articulate the appropriate standard may result in a “significant diminution of privacy” for travelers. See Riley, 134 S. Ct.at 2493.
Stay tuned.

Follow me on Twitter @RolandNikles

Saturday, March 18, 2017

Pay No Attention to the Man Behind the Curtain: the Great Oz has spoken. . . "


When a presidential candidate promises to ban Muslims from the country as his first act in office, should the courts be allowed to investigate the motivations of an Executive Order barring entry to nationals of six Muslim countries, ostensibly to keep out terrorists? Should courts be allowed to look behind the curtain of an Executive Order?

During his first week in office--need we be reminded--President Trump issued his Travel Ban 1.0,  a wide ranging order barring everyone from seven Muslim countries from entering the United States for three months pending further review, suspending the admittance of  refugees for four months, barring the admission of refugees from Syria indefinitely, and directing a preference for "religious minorities" in those areas. Travel ban 1.0 left hundreds stranded in the immediate aftermath of its poorly implemented rollout.

After a few days of chaos, a federal court in Washington State issued an order stopping further implementation of Travel Ban 1.0 until a hearing could be completed to evaluate its constitutionality.  On February 9, 2017 the 9th Cir. Court of Appeals affirmed the nationwide stay of Travel Ban 1.0 until a hearing could be held on the merits.  That order is now moot.

Travel Ban 2.0

On March 6, 2017 President Trump signed a replacement executive order, Travel Ban 2.0. This new order retains key elements of Travel Ban 1.0, but also includes significant modifications designed to make it "court-proof."  Travel Ban 2.0 exempts U.S. Green Card holders, persons who have been granted a visa, or otherwise granted permission to enter the U.S.

Travel Ban 2.0 dropped Iraq from its list of targeted countries altogether. It no longer bars refugees from Syria indefinitely, but it continues to suspend the U.S. refugee program for 120 days and it continues to ban travelers from Iran, Syria, Yemen, Somalia, Sudan and Lybia for 90 days.

On March 10, Ilya Somin  noted that Travel Ban 2.0 continues to be driven by hostility to Muslims and that its security rationale continues to be extremely weak. Travel Ban 2.0 continues to assert "nearly unfettered authority by the federal government," he said. This week two federal trial courts, in Hawaii and Maryland, have agreed with Somin.

International Refugee Assistance Project v. Trump

In the Maryland case, the court blocked implementation of Travel Ban 2.0 until a hearing can be held on its constitutionality, relying in part on 8 USC 1152(a) of the Immigration and Nationality Act, and relying in part on the Establishment Clause of the constitution. In doing so, the court explicitly found that under the circumstances of this case, the courts may look behind the curtain for improper motivation. 

A. The President lacks Statutory Authority for his Order: 

Section 1152(a) states that "no person shall be . . . discriminated against in the issuance of an immigrant visa because of his . . . nationality, place of birth, or place of residence." Although the president has broad powers to suspend the entry of "any class of aliens as immigrants" that he or she deems detrimental to the interests of the United States (8 USC 1182(f)) this power is circumscribed by the more specific requirement of 1152(a) that the government may not discriminate in denying a visa based on nationality or place of residence.  Because Travel Ban 2.0 denies visas based on nationality and place of residence, it is unlawful. 

Section 1152(a), said the court, was adopted expressly to abolish the 'national origins system' of immigration that was designed to "maintain, to some degree, the ethnic composition of the American people." President Johnson sought this reform because the national origins system was at odds with "our basic American tradition" that we "ask not where a person comes from but what are his personal qualities."

B. Travel Ban 2.0 Violates the Establishment Clause:

The Maryland court also relied on the Establishment Clause of the first amendment to the constitution. A government action is subject to challenge under the Establishment Clause if (1) it is animated by religious animus, (2) if its principle or primary effect is to enhance or inhibit religion, or (3) if it fosters an excessive government entanglement with religion. Citing Lemon v. Kurtzman 403 U.S. 602 (1971).

How do courts determine whether a governmental action (like Travel Ban 2.0) is animated by religious animus? The court looked at the 2005 U.S. Supreme Court decision in McCreary County v. ACLU of KY: "In determining purpose, a court acts as an 'objective observer' who considers 'the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.'" In other words, the mere identification (or claim) of a valid secular purpose does not satisfy the test. Courts will look at objective signs. It's something that courts do "all the time."  

In this case, of course, there is ample evidence of religious animus from candidate Trump's oft repeated promise that, as one of his first acts as President, he would bar Muslims from the country. There is evidence in the statements of Trump representatives that Travel Ban 1.0 was drafted to implement that promise (Giuliani), and that Travel Ban 2.0 was meant to serve the same underlying purpose, with only minor technical adjustments made in order to humor the courts (Miller). The Maryland court's opinion reviews a long litany of public statements made by various Trump administration figures, both before and after the election, that suggest that both Travel Ban 1.0 and Travel Ban 2.0 are motivated by religious animus and therefore unconstitutional. 

Unlike 31-year old White House aid Steven Miller, the courts so far have been firm in holding that a fundamental assault on the constitution can not be cured with "minor technical" adjustments.  

Kleindienst v. Mandel

In defending Travel Ban 2.0, the administration's lawyers point to Kleindienst v. Mandel (1972). There the court was confronted with a statute that generally denied a visa to anyone known to advocate for world wide communism, subject to the Secretary of State's discretion to grant waivers in individual cases. Mandel was a Belgian journalist who advocated for the imposition of world wide communism.  He had previously applied for and been granted entry visas pursuant to special waivers. The Nixon State Department refused to grant an exemption.  Professors at various universities where Mandel was set to speak sued, alleging that their First Amendment rights to hear and engage with Mandel were infringed. Justice Blackmun writing for the court, having recognized a First Amendment interest, concluded: "when the Executive exercises this power (to grant an exemption) negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." 

"See," say Travel Ban 2.0 advocates, pointing at Mandel, "when the Executive Order professes it is motivated by legitimate concerns of terrorist infiltration, the court's can't look behind the curtain of this assertion for religious animus; no matter what the president may have said on the campaign trail, and no matter what Steven Miller and Rudy Giuliani may have said since, the courts must take the secular purpose of the Executive Order at face value." 

Most judges aren't buying this argument. 

The Maryland court in halting Travel Ban 2.0, like the 9th Circuit in Washington v. Trump (halting implementation of Travel Ban 1.0), distinguished Blackmun's statement in Mandel. This not-looking-behind-the-curtain standard "is most typically applied when a court is asked to review an executive officer's decision to deny a visa," said the court.  "The Mandel test. . . does not apply to the promulgation of sweeping immigration policy at the highest levels of the political branches. International Refugee Assistance Project v. Trump (internal quotes omitted).

The Devil's Advocate

One judge who thinks that courts should not be looking behind the curtain in reviewing Travel Ban 2.0 is Judge Jay Bybee of the 9th Circuit.  Judge Bybee was so incensed by the action of the three judge panel in Washington v. Trump (upholding the restraining order on Travel Ban 1.0) that he penned a 26 page dissent from a denial of the request of "one judge" to reconsider and vacate the published order, despite the fact that the order is moot and that no party had asked that the published order be vacated. 

"Pay no attention to that man behind the curtain," says judge Bybee, "the Great Trump has spoken (and Travel Ban 2.0 is not facially invalid)." Bybee was joined in his protest by four circuit judges: Kozinsky, Callahan, Bea, and Ikuda. 

Judge Bybee, of course is infamous for being one of the authors of the Bush torture memos. In August 2002, Bybee, then with the Office of Legal Counsel in the Bush Justice Department, issued a memorandum justifying the use of torture to extract information from Qaeda operatives. If the President (or vice President?) want to torture in order to fight terrorism, lawyers should facilitate this?  Bybee  "provided complex definitions of torture that seemed devised to allow interrogators to evade being charged with that offense," reported the New York Times.   

Consistent with his approach in the torture memos, Bybee concludes that Mandel sets the standard of review for the courts in this case, and the standard requires that the courts not look behind the curtain of Travel Ban 2.0. 

Bybee's position, however, amounts to a complete abdication of judicial oversight. If judges are going to abdicate their role of examining motives of religious animus in a case as egregious as this, then we are truly on the road to presidential unaccountability.

The courts have been looking behind the curtain of Travel Ban 2.0 and they must continue to do so.

Follow me on Twitter @RolandNikles




Sunday, March 12, 2017

Modern Medicine: not Based on Individual MD's, but on Organizations Focused on Disease Prevention and Management

David Anderson, MD
David Anderson received his B.S. from Stanford and his medical degree from Johns Hopkins and his cardiology training at U.C. San Francisco. He is one of the pioneers in the field of coronary intervention. He helped to develop the program at Summit Medical Center that trained many of the cardiologists in the San Francisco Bay Area in the techniques of angioplasty, atherectomy and stenting. He practices at Stanford Health Care. 

David is a friend, and a great human being. The current assault on the Affordable Care Act has motivated him to formulate and write down his own thoughts about it.  He shared what follows in an email with friends. With his permission, I reproduce it here.  

David Anderson, MD: On Healthcare 2017

I am a doctor, a cardiologist to be specific. I have been in private practice for 35 years. As the “debate” on the ACA rages, can I share a few things about healthcare and health insurance, things that nobody seems to be talking about?

1)   Depriving people of access to affordable health care is very expensive: 

      It is more expensive for all of us to leave a large segment of the population without accessible affordable healthcare. Leaving aside issues of justice and empowerment there is the fact that if you cannot care for your health in an ongoing proactive way your healthcare becomes much more expensive. Take for example hypertension, a common easily identifiable problem that costs less than a dollar a day to treat. Left unidentified it will cause kidney failure, stroke, heart attack. The TYPICAL uninsured patient will show up in an ER in extremis, in need of say dialysis (which will be provided, by law). The patient will go on disability and be unemployed. He will live with family for a few years and then have a stroke or other catastrophe, and he will end up in a nursing home for more years. There are other scenarios, other diseases, all with the same message.  Here is the point, all this care is now, and will be, paid for by community institutions and healthcare providers and all existing and proposed government plans being put forth, one way or another. So I ask, if arguments of humanity are not convincing-what about plain old fashioned (conservative) principles, such as efficiency,  or everyone paying to their ability,  or cost effectiveness,  or preventative maintenance?

2)    Modern medicine is not structured on individual MD's:

      Healthcare has evolved from an enterprise based on episodic encounters between you and your doctor over isolated events of trauma or illness, into an enterprise based on  organizations that are structured to provide broad-based and long-term disease prevention and management. This has proved to be highly effective. This type of organization based approach involves “best practices” credentialing panels, an electronic medical record and approved pharmacies, etc. It is a structure driven by medical leaders and doctors and has been embraced by payors. IT HAS NOTHING TO DO WITH THE GOVERNMENT, NO MATTER WHAT FORM OF PAYMENT IS DEVISED. The days of the individual MD practicing in isolation doing his best for you as he sees it, are over. THANK GOD.

3)   There is a broad consensus that organizations structured to provide disease prevention management that includes everyone--like the ACA attempts to do--is the correct approach:

      "Medical” voices in the Republican administration (think Tom Price) are eccentric to mainstream medical thought. They are stuck on a vision of the individual MD practicing in isolation trying to do his best for you. I would direct your attention to any number of the leading medical publications such as the New England Journal of Medicine who think this is a bad idea. I cannot help but make the analogy to the voices attempting to forestall climate change. Climate change denial and this outmoded view of medicine are part of the same anti-intellectualism; they are not the result of a well thought out critique--these are  specious critiques.  Our country has a tradition of embracing science, new thought, new direction, and running with it. To discount expert opinion because it is not expedient or does not fit into one’s worldview is dangerous, counter productive and leads to errant policy.

4)   The ACA is working:

      I practice in a variety of settings, urban, suburban, rich and poor and I see the positive effects of the ACA every day. My personal view is shared by the majority of medical practitioners and by the main industry associations (Am college of Physicians, Am Academy of Peds, Kaiser, Am Hospital Ass, Catholic Healthcare; just google “organizations in support of the ACA”) The system can and should be improved. The problem lays in the fact that so much time and money has been spent on just keeping it alive politically that there has been little energy left for the project of improving it. Likewise, the uncertainty has left many institutions watching and waiting rather than investing and developing. Given the political resistance it is amazing that the ACA has done as well as it has! Is the answer starting over??

Again, I know of what I speak. I have been in the trenches. We need to stand up for truth.

David J Anderson MD FACC