The Volokh Conspiracy

When the Israeli government exchanged over 1000 captured terrorists for captured Israeli soldier Gilad Shalit last fall, I pointed out that the deal was likely to cost a lot more innocent lives than it saved, because many of the freed terrorists are likely to go back to their old ways. Sure enough at least two of them have already done just that . And they are apparently not the first Shalit exchangees to have done so. Given that there are 1000 more where these two came from, this is likely to be just the tip of the iceberg.

As I explained in my original post on this subject, the likelihood that freed terrorists will commit further atrocities is just one of several grave flaws with these types of deals. They also incentivize future terrorism and hostage taking by showing the terrorists that such tactics work. In addition, endangering innocent civilians in order to save a captured soldier who volunteered for combat duty is a wrongheaded inversion of moral priorities. Still, the high likelihood of recidivism by released terrorists is a sufficiently grave risk that it by itself outweighs any possible benefits of such deals, especially if the ratio of released terrorists to freed prisoners is so absurdly lopsided that it becomes nearly certain that the exchange will cause more harm to innocent people than it prevents.

This conclusion is inescapable on utilitarian consequentialist grounds. But it is also compelling in terms of theories of natural rights. After all, every time the freed terrorists kill or injure innocent civilians, they violate their victims’ rights to life, liberty, or bodily integrity. And the release is likely to cause far more such rights violations than it prevents.

UPDATE: I advanced some additional criticisms of the Shalit deal in this post, which also includes a response to a critique of my position by economist Tyler Cowen.

In non-mandate news, the Supreme Court issued two merits opinions today, including Zivotofsky v. Clinton, a challenge to the State Department’s refusal to follow a federal statute directing the federal government to recognize Jerusalem as a part of Israel specifically by allowing American citizens born in Jerusalem to have “Israel” listed as their birthplace.  The U.S. Court of Appeals for the D.C. Circuit had held that Zivotofsky’s claim presented a non-justiciable political question as it involved a foreign policy question implicating separation of powers questions best resolved by the political branches.  in Zivotofsky, the Supreme Court disagreed.  Chief Justice Roberts wrote the opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.  Justices Alito and Sotomayor wrote opinions concurring in the judgment and Justice Breyer dissented.

A delegation of Israeli Jews representing the “Alliance of Israeli LGBT Educational Organizations, a network of groups that support LGBT youth and families,” was visiting the West Coast last week.  The Israeli delegation’s visit was sponsored by A Wider Bridge, which describes itself as “a San Francisco–based national organization that seeks to educate people about Israeli LGBTQ society, politics, and culture, and to build connections between the North American LGBTQ and Jewish communities and the LGBTQ communities of Israel.”  But in response to pressure from some left-wing activists, Seattle’s LGBT commission canceled a scheduled reception for the visitors.

Several aspects of this story deserve attention: the cravenness of the commission in bowing to a few vocal activists, the absurdity of a transgender activist leading the charge against Israel, a liberal nation on such issues, after a visit to the West Bank, where his life expectancy if he were an “out” local would be calculated in months, if not days.

But there is also a law professor angle to the story.  According to the Seattle Times, “the first sign that the [Israeli] group would encounter trouble in Washington state began with a posting Monday on the Facebook page of Seattle University law professor [and the transgender activist noted above] Dean Spade, in which he called the delegation’s visit ‘apartheid and occupation’ wrapped in the rainbow flag.” The text of Spade’s letter to the Commission, in which he urges the commission to cancel the event, can be found here.

So Professor Spade is an advocate of  shunning and boycotting on political grounds Israeli LGBT activists who came to talk about LGBT issues because of his opposition to Israeli government policy.  I wonder how Professor Spade would like it if those in the legal community who find his views on Israel and Israelis as morally repugnant as he finds Israeli policies–conference organizers, law review editors, and so on–turned his own tactics against him and similarly shunned him? If anything, such a boycott would be better-grounded, as it would be based on his personal political views, rather than guilt-by-association based on his nationality.

I’d oppose such a reaction on practical grounds: once members of the legal academy got into the business of boycotts, it’s unlikely that the limits would be drawn sensibly [and indeed, there are already plenty of legal academics who in a non-sensible and haphazard way engage in various levels of boycott against people they disagree with].  But I have to admit not being able to think of any moral reasons against hoisting such individuals on their own petards.

UPDATE: A pretty good indication of where Spade is coming from politically can be found in this short essay, in which he criticizes the movement for same-sex marriage as “part of a conservative gay politics that de-prioritizes people of color, poor people, trans people, women, immigrants, prisoners and   people with disabilities.” Gay marriage is a distraction from spending one’s time, as one should, “opposing the War on Terror and all forms of endless war; supporting queer prisoners and building a movement to end imprisonment; organizing against police profiling and brutality in our communities; fighting attacks on welfare, public housing and Medicaid; fighting for universal health care that is trans and reproductive healthcare inclusive; fighting to tax wealth not workers; [and] fighting for a world in which no one is illegal.”

Here’s Clinton speaking in Tunisia. Note that the questioner operates under the assumption that to be pro-Israel is to be against the “common Arab citizen,” and Clinton not only fails to challenge that assumption, but implies that rhetoric that pleases the “Zionist lobby” is somehow anti-Muslim.  She then suggests that Americans (and others) are fools if they take seriously anything said during campaign season [note that "our" in the title therefore refers to Americas' political class as a whole, not just (but not exclusive of) the Obama administration].

QUESTION: My name is Ivan. After the electoral campaign starts in the United States – it started some time ago – we noticed here in Tunisia that most of the candidates from the both sides run towards the Zionist lobbies to get their support in the States. And afterwards, once they are elected, they come to show their support for countries like Tunisia and Egypt for a common Tunisian or a common Arab citizen. How would you reassure and gain his trust again once given the fact that you are supporting his enemy as well at the same time?

SECRETARY CLINTON: Well, first, let me say you will learn as your democracy develops that a lot of things are said in political campaigns that should not bear a lot of attention. There are comments made that certainly don’t reflect the United States, don’t reflect our foreign policy, don’t reflect who we are as a people. I mean, if you go to the United States, you see mosques everywhere, you see Muslim Americans everywhere. That’s the fact. So I would not pay attention to the rhetoric.

Secondly, I would say watch what President Obama says and does. He’s our President. He represents all of the United States, and he will be reelected President, so I think that that will be a very clear signal to the entire world as to what our values are and what our President believes. So I think it’s a fair question because I know that – I sometimes am a little surprised that people around the world pay more attention to what is said in our political campaigns than most Americans, say, are paying attention. So I think you have to shut out some of the rhetoric and just focus on what we’re doing and what we stand for, and particularly what our President represents.

I’m sure Clinton didn’t mean it the way it came out, but it’s embarrassing nevertheless.  As Glenn Reynolds likes to say, the country is in the best of hands.

UPDATE: Several early commenters suggest that Clinton’s comments were directed at GOP rhetoric in this campaign season.  That makes sense [better put, it makes Clinton's comments more comprehensible], but the questioner wasn’t asking about what one commenter suggested was the GOP’s “belligerent” rhetoric. Rather, he was clearly asking about both sides‘ rhetoric–I’ve now highlighted the “both sides”  in the original question so it’s clear what the questioner was saying: every campaign season we see both Republican and Democratic candidates [including, obviously, Pres. Obama] appealing to pro-Israel constituencies,  and then when they get into office we see they aren’t as hostile to Arab individuals as we thought, even though they still support the Arabs’ “enemy”.  “Don’t believe what you hear in campaigns” isn’t even the beginning of an adequate answer to that.

FURTHER UPDATE: Some commenters are also insisting that Clinton’s comments are directed at GOP rhetoric on Iran.  I don’t see any indication in either the question or the answer that Iran is under discussion.  Moreover, Iranians are not Arabs–I’m sure Clinton is aware of this–and the questioner references only Arab countries (Tunisia and Egypt) and the “common Arab on the street.” Indeed, it’s kind of odd that Clinton segues into a discussion of Muslims in the U.S.; the questioner didn’t suggest that the U.S. is hostile to Muslims, but to Arabs because the U.S. supports Israel.  I’m guessing that Clinton had some talking points she wanted to express, and tried to awkwardly shoehorn them into an answer to a question they weren’t responsive to.  So awkwardly, in fact, that when she tried to circle back to answer the question she wound up saying “don’t pay attention to anything American politicians say during campaign season.”

FINAL UPDATE: Even for those inclined to read Clinton’s comments in what they think of as charitably–I’m not inclined to think it’s “charitable” to suggest that rather than simply misspeaking, she,  in her capacity as Secretary of State in a foreign country, was actually implicitly attacking Republicans, one of whom may be the president soon–she still failed to address various nefarious ideas embedded in the question, including the idea that Israel is an enemy of the “common Arab citizen”, that American support for Israel implies a hostility to Arabs, and that U.S. support for Israel, rhetorical or otherwise, reflects the power of “Zionist lobbies” as opposed to a widespread consensus among Americans. Indeed, she seemed to (but I doubt meant to) suggest that Obama administration policies are actually a lot less pro-Israel than that might appear at first glance.

The quotation in question is “The Arabs will have to go, but one needs an opportune moment for making it happen, such as war.”

With regard to the first part of the quotation, “The Arabs will have to go,” this piece makes a strong case that he, at best, relied on a mistranslation of the Hebrew by others rather than going back to the original source (the mistranslation saying the exact opposite of the original writing’s “We do not want and do not need to expel Arabs and take their places”).

With regard to the rest of the quote, the ethics committee at Pappe’s University of Exeter determined that this was a “fair and accurate paraphrase” of sources relied upon by Pappe (without specifying the sources), but was mistakenly put in quotes.

This raises the obvious question of how this could be a fair and accurate paraphrase if the first part of the quotation was incorrect.  On that point, the ethics committee apparently concluded that the fact that others incorrectly “translated” the first part of the quotation even more egregiously exonerates Pappe.

I wasn’t aware of this controversy previously, and I haven’t gone back to the original Hebrew sources.  But if the linked-to piece is correct, it looks like Pappe took a bogus English translation of a Ben-Gurion quote that had been repeated by others, then “paraphrased” some other material that he nevertheless put into quotation marks, and combined them into a quotation falsely suggesting that Ben-Gurion had a longstanding to expel the Arabs of Palestine.

In fairness to Pappe, in the editing process things like this can happen inadvertently, and can especially happen if the mistake creates a quotation that seems perfectly sensible to the author based on his ideology–one is much less likely to carefully check a quotation that “sounds right” than one that doesn’t.  But it certainly doesn’t help Pappe’s case that he attributes the difficulty this has caused him not to his own errors, but to the machinations of “Zionist hooligans,” [UPDATE: fwiw, an old Soviet propaganda term used to denounce American Soviet Jewry activists as well as Israelis] which hardly makes him sound like an objective scholar pursuing the truth.

According to this article, the Netanyahu government is willing to cede 90% of the West Bank to the Palestinians.  The Palestinians are demanding 98.4% plus land swaps.  Eventually, one hopes, a middle ground could be reached, but why not settle things right now?  How about if Israel simply “buys” (without necessarily conceding lack of current ownership) the extra land from the Palestinians?  And not by giving the money to the Palestinian government, but by giving every man, woman, and child in the West Bank $5,000, payable over a five-year period.  The total cost: approximately $10 billion.  Make the offer, and let the Palestinians decide in a referendum whether they’d rather continue the conflict, or would rather have more money than most of them have ever seen (GDP per capita $1,000), plus their own state, plus peace.  I’m sure this sounds simplistic, but it’s about time someone started thinking outside the box.

UPDATE: I’d be just as happy if the Coaseian bargain went the other way, and the Palestinians were able to offer something to the Israelis that would lead the Israelis to accept the Palestinians’ terms.  But if (and it’s a big if) the main sticking point is something less than 10% of the West Bank, surely some sort of creative solution is better than the blood and treasure being spent.

FURTHER UPDATE: Lawprofs Peter Siegelman and Gideon Parmochovsky suggested a similar but more complex arrangement in the L.A. Times in 2002.

This sort of suggestion also raises the question of whether “pro-Palestinian” activists are more concerned with the plight and interests of Palestinians, or more concerned with righting what they consider righting the historical wrong of the existence of Israel.  Norman Finkelstein, of all people, has recently posed this question in rather dramatic fashion, much to the dismay of his comrades in the Palestinian solidarity movement.  (Fwiw, Finkelstein should engage in a bit more self-reflection.  With his consistently venomous rhetoric often verging on anti-Semitism, covered occasionally in prior blog posts (e.g.), perhaps no American has done more to associate the Palestinian cause with visceral hostility to Israel and its American supporters).

Last week, I posted a short piece on an article by Neil Lewis in the Columbia Journalism Review, discussing whether the New York Times reporting is hostile to Israel. As I noted, Lewis gets the basic story right–the Times’ isn’t anti-Israel, as such, but its reporting on Israel tends toward the adversarial, for two reasons. First, for several decades the Times’s Israel correspondents have typically had views on appropriate Israeli policy well to the “Left” of the governments in power in Israel. And, second, reporters find it naturally appealing to take the “David” (Palestinian) side in a David vs. Goliath (Israel) story. I should have added a third factor, noted by Lewis: the growth of leftist domestic NGOs in Israel strongly opposed to government policy (and often to Zionism), which–though Lewis doesn’t mention this–are typically staffed by English-speakers, often Americans, and that, because they are so far out of the mainstream of Israeli opinion, tend to focus on feeding stories to a more sympathetic international media.

The problem with the article is that Lewis seems to think that this is more or less the end of the matter. If the Times isn’t affirmatively anti-Israel, it doesn’t matter whether the Times’s reporters are nevertheless implicitly opposing Israeli government policy and/or supporting Palestinian claims by virtue of the stories they choose to pursue, how they frame those stories, what photographs they choose to run with the stories, and so forth–none of which he analyzes in any detail. Other critics, some much more vociferous than I, have noticed the same thing.

Indeed, even though Lewis acknowledges the points noted in the first paragraph, and he cites critics of the Times (including critics who think the Times is too favorably inclined to Israel), he manages to avoid acknowledging any instance where he agrees that pro-Israel critics of the Times’s coverage have had a valid objection. Instead, the piece comes off as suggesting that the only folks who could reasonably object to the Times’s coverage are right-wing Orthodox Jews who support the settlements. [FWIW, I'm neither Orthodox nor support the settlement enterprise, yet I've found the Times's coverage wanting on many occasions.] And he spends an awful lot of time on other matters that are peripheral to the issue he was supposed to be writing about, including the Times’s failure to adequately report the Holocaust as it was happening, and gossipy matters perhaps of interest to media insiders, such as confusion within the Times’s hierarchy over whether former Israel correspondent David Shipler is Jewish (he’s not, but who cares?)

Meanwhile, it turns out that I gave a poor, indeed, incorrect example of something that I said Lewis didn’t mention, but should have: that the far leftist Chris Hedges, who we now know as a vociferous critic of Israel, was the Times’s Middle East Bureau Chief from 1998-2001, when the Times’s coverage of Israel by Deborah Sontag was subject to particular criticism. It turns out that I was relying on misinformation from several websites that identified him as bureau chief at that time. In fact, Hedges was Middle East Bureau chief earlier in the decade (a fact that, oddly enough, Lewis didn’t know, as he acknowledged to me). So mea culpa on that.

It was Lewis himself who alerted me to my error via a response he asked be posted here. Here it is, with a bit of additional commentary from me following it.

here is my comment as i would like it published/posted:

i am the author of the cjr piece abt the times and israel.i try not to respond to the range of comments it has produced — people are entitled to ….etc. if someone thinks i failed to analyze specific articles enough, i think they did not read my article thoroughly, but that’s their view and i have no need to try and rebut.

but i found the comment [by prof. bernstein] so exquisitely typical of the ignorance of many i have read, i thought i would respond.

the facts: chris hedges, heartily disliked by fervent supporters of israel, was not debbie sontag’s superior or supervisor. ever. he was, for a time, the correspondent based in cairo (and i am not sure their times much overlapped if at all).

but mr bernstein says he was “middle east bureau chief” and thus he extrapolates he was sontag’s supervisor. this is a “salient” fact to explain her coverage, he writes that i omitted.

this has all the elements of the conspiracy-spinning mind that snatches at odd facts (and untrue notions) and puts them together in a way to confirm some previous notion.

as i suggested above, it has been heartily dismaying to read so many nonsensical comments — from people who come at the issue from both sides– as it demonstrates the obstacles such obduracy presents to honest, or even minimally intelligent discussion

From this comment, one can perhaps see the origins of the problems with Lewis’s piece. First, Lewis implies that Hedges is apparently not reasonably considered hostile to Israel by anyone except “fervent supporters of Israel.” Recall that Hedges has expressed a strong preference for Hezbollah and Hamas in their conflict with Israel. I should think that any person who values liberal democracy over Islamic theocracy and terrorism would find Hedges’s views objectionable; Lewis apparently disagrees. Moreover, it’s hardly just supporters of Israel, much less just “fervent” ones, who have objected to his radical foreign policy views. But Lewis’s attitude is consistent with the notion implied in his article that only the fringe is likely to see anything worth criticizing in the Times’s Israel coverage.

Second, while I can understand why Lewis was annoyed by my misstatement of fact, it’s a long way from such a misstatement to being “ignoran[t]” and having a “conspiracy spinning mind” incapable of “intelligent discussion.” (Mr. Lewis, did the Times never have to issue a correction for any of your articles? If so, does that make you ignorant etc.?) This, however, is apparently what Lewis thinks the Times’s more vocal critics, an attitude that occasionally reveals itself in his article. Indeed, Lewis is so caught up in what he sees as the unreasonableness of his critics that he failed to note that I started my post by agreeing that the basic thrust of his piece was correct, i.e., that its general take on the Times’s coverage reflects what every “fair-minded observer already knows.” But hey, I’m just a simple-minded ignoramus.

Finally, what does Lewis’s piece say about the attitude of the MSM toward its critics on the right? Lewis seems to acknowledge that the Times’s coverage of Israel has a point of view (i.e., a “bias”), but seems perplexed that anyone cares or objects when that bias manifests itself in the Times’s reporting.

I’ve blogged before about the New York Times’ coverage of Israel, so I thought I’d point out a piece in the Columbia Journalism Review by former Times reporter Neil Lewis on that precise topic.

Unfortunately, it’s trite, largely repeating what any fair-minded observer already knows: first, that the Times is not hostile to Israel, per se, but its reporters’ and editors’ views of “proper” Israeli policy have for decades leaned far to the “left” of actual Israeli policy, which in turn makes much of its coverage implicitly adversarial (and which also explains why folks that are truly hostile to Israel think that the Times is a Zionist rag); and, second, that in a David vs. Goliath story, reporters tend to strongly favor David. As the narrative of the Arab-Israeli conflict has shifted from little Israel defending itself against tens of millions of Arabs to stateless Palestinians demanding rights from Israel the advanced military power, reporters, including reporters at the Times, have a natural inclination to skew their stories to favor the Palestinian Davids, with much of the context of the conflict–including those tens of millions of neighboring Arabs still largely unremittingly hostile to Israel–often lost in the shuffle.

Meanwhile the piece misses some opportunities to point out various occasions where the Times’s has deviated from anything resembling fairness to Israel. For example, while Lewis notes that Deborah Sontag, the Times’s Israel correspondent from August 1998-2001, was considered even by her bosses at the Times unduly unfriendly to Israel, he then adds that the Times considered replacing her with Jeffrey Goldberg, a clearly pro-Israel (albeit, as one would expect, left-leaning) writer.

But he somehow neglects to note a much more salient point than the Times’s flirtation with Goldberg: that the head of the Times’s Middle East Bureau during Sontag’s time (and assumedly therefore Sontag’s direct supervisor) was a leftist ideologue named Chris Hedges. As I noted in 2006, we’ve since learned that Hedges thinks that Israel is far worse than either Hamas or Hezbollah. One wonders, in fact, how much of the bias many saw in Sontag’s writing was attributable in one way or another to Hedges. But my main wonder is how someone could write a lengthy essay on this particular topic, and discuss specifically the period when Hodges was in charge of the Times’s overall Middle East coverage, and never even acknowledge Hedges’ existence.

Correction: Hedges was the Times’s Middle East Bureau Chief, but earlier in the decade.
I’m not going to be available to moderate comments tomorrow, so comments will be open, but not indefinitely. But I stand by my general point, which is that even though Lewis acknowledges in the abstract that the Times’ coverage of Israel is often adversarial, he fails to point out ANY instances where agrees that the Times’s coverage was actually unfair.

Jerusalem Post:

After 20 months of attacks and a quarter million shekels in damage, a religious bookstore in the ultra-Orthodox Mea She’arim neighborhood of Jerusalem decided on Monday to accede to the demands of extremists responsible for the violence.

Under the terms of the compromise, Ohr Hachaim/Manny’s put up a large sign requesting that all customers dress modestly. A mashgiach, who checks the store’s inventory to make sure there are no controversial books, will go over the books in the coming week and require that some books be removed from the shelves, though they will not be permitted to remove any English books, said Marlene Samuels, one of the store’s managers.

A haredi group called Sikrikim deemed the store as “promoting immodesty,” and since Manny’s opened in March 2010, the group has smashed its windows more than a dozen times, glued its locks shut, thrown tar and fish oil at the store and dumped bags of human excrement inside. The owners were also personally threatened multiple times.

One of the group’s leaders has been arrested, which apparently allowed the bookstore owners to reach a “compromise” than fell short of acceding to all of the extremists’ demands. Nevertheless, this strikes me as a result an abdication of responsibility by Israeli authorities. The owners had to pay for their own security guards. How about a police patrol protecting the store? The leader was arrested, great. But what about all the lower-level thugs who perpetrated the vandalism and threats? The Israeli government has long permitted Haredi extremists to be above the law, permitting them enforce “modesty” rules on public streets via violence and threats, illegally segregating the sexes on public buses, tolerating violent demonstrations against construction projects allegedly taking place on ancient cemeteries, and so on. Not to mention the greatest malfeasance of all, allowing Haredi extremists to take control of domestic relations law. With the Haredi population increasing exponentially, the government needs to stand up for liberalism while it still can.

It turns out that various politically active, generally far left-wing Israeli NGOs, some of which deny the very legitimacy of the Israeli government, get funding from various European governments (see, e.g., this detailed NGO Monitor Report, which focuses only on funding through the EU itself; member states provide substantial additional funding). Some of these organizations, for example, support the international “Boycott, Divestment, and Sanctions” efforts against Israel. (Exactly why European governments fund NGOs whose views diametrically oppose the governments’ official policies vis a vis Israel is an interesting question that we’ll leave to another time).

These NGOs are often given special legitimacy in the international media because they are purportedly Israeli NGOs. NGO Monitor’s investigations show that many of them are, in fact, organizations with little if any domestic base within Israel and instead represent the views of the international far left with a fig leaf of Israeli leadership drawn from its domestic far left.

Israelis, tired of this rather subtle form of ideological warfare emanating from their purported friends among governments in Europe, are now considering a measure that would ban foreign government funding of political NGOs above a certain low level. (UPDATE: Many of these organizations have also received substantial funding from private organizations like the Ford Foundation and the New Israel Fund, but the legislation in question does not target such private contributions.) Whether this particular measure is workable, and whether it’s the best way to deal with the situation, I’ll again leave for another time.

What’s striking, however, is the EU’s reaction:

The EU’s ambassador to Israel, Andrew Standley, contacted the prime minister’s national security adviser, Yaakov Amidror, on Thursday and warned him that passage of the legislation could harm Israel’s standing in the West as a democratic country.

So the idea here, obviously is that a “democratic” country must allow foreign governments, who represent foreign citizens and not Israelis, to interfere in its domestic politics by supporting organizations that range from the fringe left to beyond the fringe left.

Now that is chutzpah! Imagine if Israel was funneling millions of Euros annually to Basque separatists in Spain, Flemish nationalists in Belgium, or to one of numerous neo-fascist fronts in Norway and France. I have a very strong feeling that the EU’s views of what “democratic” countries must tolerate from foreign governments would change rather quickly.

UPDATE: Among other laws, in the U.S. the NGOs in question would be subject to the Foreign Agent Registration Act which, according to the official website, “requires persons acting as agents of foreign principals in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities. Disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their function as foreign agents.” Last I heard, Israel had no such requirements, but perhaps the EU thinks that the U.S. is “undemocratic” as well.

FURTHER UPDATE: As near as I can make out, Kevin Jon Heller responds to my hypothetical suggesting that EU countries would not take kindly to Israeli interference with their domestic politics with the notion that EU nations should be free to donate to leftist Israeli NGOs because they are “progressive” and purport to be “human rights” organizations. On the other hand, it would be a completely different story if Israel chose to donate to European neofascist groups or Basque separatists because these are not “progressive” organizations, even though, of course, they purport to be promoting the human rights of their constituents. In other words, interfering with local democracy is fine promotes Heller’s ideological agenda, but not fine if it doesn’t. I’m glad we’ve cleared that up. And for those coming here from Heller’s link, please note that contrary to the impression you may have gotten from Heller’s post, I “defended” the pending legislation only from charge of being “undemocratic,” without endorsing it.

Majority public opinion in Israel continues to support the recent deal in which the Israeli government traded over 1000 terrorist prisoners for kidnapped soldier Gilad Shalit, which I criticized here. But as this interesting CNN article explains, there is growing dissent:

While the deal to free Shalit was backed by a commanding Cabinet majority of 26-3 and enjoys wide support from the Israeli public, there is growing debate about the price Israel is willing to pay in order to free a single soldier.

Families of victims of terror, as well as some members of the Israeli government, have expressed fierce opposition to the deal. One minister who voted against the agreement called it “a great victory for terrorism,” and there are fears that the release of convicted murderers will lead to further attacks on Israeli civilians — a fear that, critics say, is borne out by statistics.

According to Israeli association of terror victims Almagor, 180 Israelis have lost their lives to terrorists freed in previous deals since 2000….

If the figure of 180 Israelis killed by exchanged terrorists is even remotely accurate, it greatly outweighs the number of Israeli hostages freed in such deals (16 according to this Slate article). And that number does not include the additional hostages taken by terrorists as a result of the success of previous efforts at hostage-taking. It also does not include Israelis killed by terrorists freed in deals prior to 2000, while the total of 16 Israelis exchanged includes all deals going back three decades.

Ironically, as the CNN piece points out, Israeli Prime Minister Benjamin Netanyahu, the man who signed off on the current deal, understands the perversity of these kinds of arrangements perfectly well. He was a prominent critic of similar (though somewhat less lopsided) exchanges that the Israeli government agreed to in the 1980s:

Three years after the [1985] Jibril Deal, Netanyahu explained his philosophy about negotiating with terrorists to CNN’s Larry King. “On one case I did not swallow it. When my government did something that I simply could not live with, which was the release of jailed terrorists for three of our POWs. We wanted to get our POWs back, and the government, in my judgment, made a big mistake and traded terrorists. And here I was confronted with a situation that everything I believe in, in fact agitated for and tried to use an example of Israel for, to encourage other countries, especially the United States, to adopt a tough no-concessions policy against terrorists.”

In his 1995 book “A Place in the Sun” Netanyahu called the Jibril Deal “a fatal blow to Israel’s efforts to form an international front against terrorism” and warned of the hazardous consequences of such moves. “The release of a thousand terrorists…will inevitably lead to a terrible escalation of violence, because these terrorists will be accepted as heroes,” Netanyahu wrote.

Netanyahu’s critique of the 1985 deal applies with even greater force to his own more lopsided agreement.

UPDATE: Various commenters on this and my previous post on the same subject claim that the Israeli government had to do this in order to send its citizens a “message” about how much it valued their lives and was willing to pay a high price to save them. But if these deals lead to the deaths of far more innocent Israelis than they save, the real message sent will be exactly the opposite: that the government is willing to make a large net sacrifice of innocent life in order to gain short term public relations benefits or a short-term boost in national morale. It’s possible, of course, that Israeli public opinion is myopic enough that they will think that the government is saving life despite the fact that it is actually sacrificing a much larger enough of innocent lives. If so, there could be a more permanent and substantial boost in national morale. Even then, it will probably fade as public attention shifts to other issues. In any event, it’s not worth the sacrifice of numerous innocents and the creation of perverse incentives for terrorist groups.

UPDATE #2: Tyler Cowen responds to this post here:

Ilya is possibly underrating the power of signaling models. It is precisely the fact that that Israeli government will trade for this single life, even apart from whether it is instrumentally rational, that sends the relevant signal. The less “rational” the act, the more potent the signal of concern, and in this case the possible irrationality is stochastic, not certain…..

One can also read the Israeli government as signaling (correctly or not) that it has the power to prevent or at least limit future kidnappings. It is an expression of strength, or at least a belief in strength, and citizens seem to like that signal from their leaders.

I am not at all persuaded by Tyler’s argument. If Israel meant to signal that they can prevent future kidnappings, they have clearly failed. Hamas leaders have repeatedly stated that this exchange encourages them to take more hostages in the future. As soon as they do so, any Israelis who may have been deluded by this signal of “strength” will be disabused of the notion that strength is what is being signaled here.

If the goal is to show that Israel is willing to save its citizens even when it’s not “rational” to do so, then the message is self-defeating. In this case, it’s irrational because israel is actually sacrificing many more innocents than it will save. To the extent that the Israeli public understands that, they will be demoralized rather than encouraged. If they don’t understand it, they won’t understand that the action isn’t “rational” and thus won’t get the message that Tyler thinks the Israel government is trying to convey.

I was not planning to write a post on the Israeli government’s recent deal exchanging over 1000 Hamas prisoners for kidnapped Israeli soldier Gilad Shalit. I was certain that someone more prominent would write a column explaining why this was a terrible decision. But even conservative commentators like Jennifer Rubin are praising it as a testament to Israel’s concern for the lives of its people. The US government has also praised the agreement.

I understand the emotional appeal of securing the release of a young soldier who has been in captivity since 2006. Nonetheless, the Israelis should have said “no.” Far from saving innocent life, the deal puts at risk many more innocents than it saves. It also incentivizes future acts of hostage-taking by Hamas and other terrorist organizations.

Among the Hamas prisoners released in the deal are dozens who have committed brutal acts of terrorism against civilians in the past. If even a few of them commit further terrorist atrocities in the future, the resulting death toll is likely to far outweigh the benefit of saving Shalit. Moreover, such a lopsided deal (trading hundreds of hardened terrorists for an ordinary soldier) incentivizes future hostage-taking. Hamas officials have already said that the deal encourages them to kidnap more Israelis. If one hostage is worth 1000 prisoners, what can they get for two or three or ten? As one Hamas leader puts it, “[s]omeone who agrees to release 1,000 prisoners will agree to release 8,000 in the future.” If even a right-wing Israeli government that has otherwise taken a hard line against Palestinian terrorism is willing to go for such a deal, what about other liberal democracies? The precedent set by the Israelis is likely to endanger other nations as well as themselves.

Both the Israelis and other democratic states (including the US) have signed bad deals to get hostages back in the past, and such agreements have repeatedly backfired. For example, President Reagan gave Iran arms in exchange for American hostages held in Lebanon, only to see Iranian-backed terrorist groups seize more hostages as a result. But it’s hard to think of another hostage deal more ridiculously lopsided than this one, though a few previous Israeli exchanges come close.

Finally, it should be emphasized that Gilad Shalit is a soldier. The moral significance of that status seems to have been ignored. The job of soldiers is to protect innocent civilians from attack, sometimes at the risk of their own lives and freedom. Soldiers’ acceptance of these risks is why we rightly hold military service in such high respect. Although Shalit was apparently a draftee, he volunteered to serve in a combat unit, thereby accepting the attendant risks (the moral issue might be different had he been forced to take that risk against his will). To put numerous civilians at risk of future terrorist attacks in order to save a single soldier is a reprehensible reversal of moral priorities. It is similar to starting a fire that endangers civilians for the sake of rescuing a firefighter.

Shalit’s plight has been highly visible to the public for several years, and his friends and family have understandably been pressuring the Israeli government to secure his release at any price. By contrast, the identities of the future victims of the terrorists released in the deal, and the future hostages who will be taken as a result of it are as yet unknown. Because we don’t yet know who they are, the media can’t cover them and their relatives can’t lobby to protect them. It is a classic example of public opinion focusing on the seen while ignoring the unseen.

I don’t blame Shalit’s family and friends. Most other people in their position would feel the same way. But the Israeli government, like any government, has a broader duty to all of its citizens. It failed in that duty when it put numerous civilians at risk in order to secure the release of a single soldier.

UPDATE: Here is yet another Hamas leader stating that the deal proves that kidnapping works, and promising to take more hostages in the future:

Senior Hamas leader Khalil al-Hayya says the Shalit-for-terrorists deal proves kidnapping works, and he promises more abductions. The Israeli Cabinet late Tuesday night approved freeing kidnapped soldier Gilad Shalit for 1,027 terrorists and security prisoners.

Al-Hayya, a Gaza legislator and a senior academic and political figure, told the Chinese news agency Xinhua, “Our prisoners can only be released through this way. The release of prisoners will lead to a bigger victory and will break forever the siege that had been imposed on the Gaza Strip for five years.”

Last week, he urged Palestinian Authority terrorists to kidnap more Israeli soldiers to gain the release of all prisoners, including terrorists, in Israeli jails.

“The one and only solution is more resistance against the Israeli oppression, and more abduction of Israeli soldiers and settlers,” he told the Al Quds satellite television network.

It’s worth noting that, in Hamas’ terminology, all Israeli Jews are “settlers” and not just those who live on the West Bank.

Their recent columns on Israel provide about as clear and succinct examples of diametrically opposed views on who is to blame for the current Israeli-Palestinian impasse as you are likely to find. Here’s Krauthammer, blaming the Palestinians. Here’s Kristof, blaming the Israelis.

You won’t be surprised to learn that I think Krauthammer is much closer to the truth. As for Kristof, anyone thinks it’s clever to write a line like “That’s the saddest thing about the Middle East: hard-liners like Hamas empower hard-liners like Mr. Netanyahu”–which, by equating the two parties, implies either that Hamas is as willing as Netanyahu to commence negotiations forthwith and has already recognized the other side’s right to a state, or that Netanyahu is, or at least is as “hard-line” as if he were, a casually genocidal ideologue whose governing ideology is based on a combination of medieval religious doctrine and modern racist conspiracy theories–ultimately doesn’t deserve to be taken seriously. But your mileage may vary.

This is an interesting piece defending the Obama Administration’s record on Israel.

For what it’s worth, I don’t think Obama is “anti-Israel.” But I think the NY Mag piece misses some significant elements of the puzzle. Obama made it clear during the 2008 campaign that he was anti-Likud. Likud happened to be the Israeli party in power when he came into office. This created several problems for Obama, some substantive and some for “optics.”

On the optics side, it’s pretty hard to be anti-Likud when the Likud is in power and not look like you are exhibiting some hostility to Israel.

Relatedly, on the substantive side, it’s pretty clear to me that the Obama Administration wanted to topple the Likud-led government so they could get a more dovish government more to their liking in power.

This led the Administration to publicly demand that Israel initiate a full settlement freeze, something the Palestinians themselves had never demanded [as a precondition to negotiations]. The strategy, as I see it, was that with a new extremely popular president Israel wouldn’t be able to say no, but Netanyahu’s coalition was too right-wing to say yes. So the government would have to fall, as Shamir’s did in the early ’90s in part because he couldn’t get along with the Bush Administration.

This proved a spectacular miscalculation. Netanyahu had a much broader coalition than Shamir’s, including the Labor Party. And Israel has become a major issue in conservative politics, which is was not twenty years ago. Pressure on Netanyahu invited pushback from the Republicans, leading Democrats to tell the president to ratchet it down. And again optics-wise, how often does the U.S. try to undermine the coalition governing one of its democratic allies?

Meanwhile, the Palestinians couldn’t demand less from the Israelis than Obama demanded, so they refused negotiations in the absence of a full settlement freeze. In interviews I’ve seen, Palestinian officials have been quite explicit that this is the reason they have been unwilling to negotiate with Israel. So Obama not only came off as anti-Israel to many friends of Israel, he also undermined what was left of the peace process.

Finally, with regard to domestic politics I pointed out repeatedly during the 2008 campaign that one of Obama’s weaknesses was that his entire adult life was spent in circles in which liberal/left views were taken for granted. In Obama’s circles, publicly pressuring Israel and using “evenhanded” language to refer to the Palestinian-Israeli conflict (while favoring Israel beneath the rhetorical surface) seems perfectly reasonable, even a bit “right-wing.” The JStreet types that are Obama’s natural constituency would certainly think so. (The mistaken assumption, pushed by JStreet itself, was that the average pro-Israel American was the equivalent of a JStreeter. This isn’t true, and to the extent it applies to some Jewish voters, the JStreeter types are almost all hardcore Democrats, not the swing voters/donors Obama is having trouble with.)

But in mainstream pro-Israel sentiment, especially among the more traditional Jewish communities on the East Coast, “evenhanded” sentiment sounds extremely suspicious, especially (lest we forget) given that Obama still faced suspicion thanks to his longstanding membership in a church with an arguably anti-Semitic and certainly anti-Israel minister. (Remarkably, Rev. Wright never comes up in the NY Mag piece).

In short, I think the Obama Administration took it for granted that pro-Israel Americans would understand Obama and his administration were pro-Israel, but were simply willing to pressure Israel for its own good, at the expense of the Likud and its allies but not Israel. Instead, what a lot of Americans thought they saw was the Administration pressuring Israel publicly but coddling the other side. The NY Mag piece suggests that the Administration was also pressuring the Arabs, but much more quietly. Perhaps, but you can only get away with that if folks trust your pro-Israel bona fides, which they did not with Obama.

Ha’aretz:

The future independent Palestinian state will not include a Jewish minority, a top Palestinian official told USA Today on Wednesday, adding that it was in the best interest of both peoples to “be separated.”

I think we all know the answer, which is that it will (a) have no effect on their political views re Israel-Palestine; and (b) not stop them from using the false charge of “apartheid” against Israel (just as the fact that before the Second Intifada activists accused Israel of improperly integrating the Palestinian population into Israel didn’t stop the same activists from criticizing Israel for doing the exact opposite when that became the more politically convenient charge).

UPDATE: As I elaborate upon in the comments, my point is that the pro-Palestinian activists in question is using an argument against Israel that they don’t really believe in; you know that they don’t believe it because they don’t apply the same principles to their “side.” If Israel, with a 20% Arab minority with full citizenship rights, which only started to physically separate from the non-citizen population of the West Bank after a years-long murderous terrorist campaign emanating from there, is a beyond-the-pale apartheid regime, what would/should one say about a rival nationalist movement that can’t even contemplate having a Jewish minority living in its territory?

Pollak:

During the past decade, as the New Israel Fund and European governments have funded and fueled the delegitimization war on Israel, critics have argued the NGOs they support have no real constituency in Israel; that they represent foreign interests; that they are funded — all told, the sum is around $100 million per year — almost entirely by foreign foundations and European governments seeking to impose their agendas; that they seek to overturn the democratic choices of the Israeli people; that they foment external pressure and “lawfare” to prevent Israel from protecting herself from threats; and that the groups’ activism is motivated not by the claimed values of human rights and international law, but by varying degrees of anti-Zionism and solidarity with Arab interests and leftist anti-Israel activism.

At every turn, the NGOs have angrily denied these charges and smeared those who made them as being (take your pick) anti-peace, anti-human rights, anti-democracy, or extremist right-wingers attempting to silence dissent.

It is a remarkable moment in this battle to see the NGOs admit in private [via Wikileaks] the same things they slander their critics for saying about them in public.

FWIW, I head an email exchange with the head honcho of NIF a few months ago. I asked whether it’s true that the New Israel Fund funds Arab organizations that support divestment from and boycotts of Israel. His response was that you can’t expect Israeli Arabs to accept the “Zionist narrative,” as if there’s no difference between making an Arab citizen of Israel into a Zionist, and requesting, as a condition of funding, that he not try to undermine the liberal democracy in which he is living. [UPDATE: With the understanding that NIF's stated goal is to improve Israel by "strengthening democracy and advancing social justice and religious pluralism," not undermine it.]

For those of you who still take Juan Cole’s views on Israel seriously, a reminder:

“There are two possible reasons for the violence. One is that the Israeli troops boarding the vessels met some sort of resistance and over-reacted. Aid volunteers are unlikely, however, to have posed much real challenge to trained special forces operatives.” Or, more likely, “the deaths and woundings may have been a brutally frank warning to any future Gaza aid activists.”

Palmer Report: Israeli forces “faced significant, organized and violent resistance from a group of passengers when they boarded the Mavi Marmara requiring them to use force for their own protection. Three soldiers were captured, mistreated, and placed at risk by those passengers. Several others were wounded.”

As I pointed out at the time, Israel relied on faulty intelligence, and should have recalled its forces and started from square one when it became clear that they weren’t facing peaceful “aid volunteers,” but organized, violent fanatics itching for a fight.

The Palmer Report suggests that Israelis forces may have used excessive force, and that wouldn’t be surprising–that’s the sort of thing that happens when a bunch of scared, heavily-armed but woefully ill-prepared nineteen-year-olds suddenly find themselves in close combat with armed militants who have captured their friends and are threatening their lives. That’s very different, however, from the completely unsubstantiated claim, pushed by Cole then and others still today, that the level of violence was premeditated on the part of the Israeli government.

And if you’re in a mood for a grim laugh, check out Roger Cohen’s new column, in which he writes that Israel, because of its actions, is “losing one of its best friends in the Muslim world, Turkey.” Cohen appears to be completely innocent of the obvious fact that Turkey’s Islamist government is using hostility to Israel to play to its base, and had done so for some time before the Mavi Marmara. Israel’s remaining friends in the Turkish establishment were primarily in the military–but the Turkish government has locked up many of its top generals on trumped up charges, and many of the rest resigned in protest.

In other words, Israel didn’t have Turkey’s friendship (or at least the friendship of this particular Turkish government) to lose. Does anyone with half a brain really believe that the Turkish government, which occupies Northern Cyprus, blockades Armenia, and suppresses Kurds (including by using cross-border force against Kurdish militants based in Iraq), has been oozing hostility to Israel for years now because it opposes occupation, blockades, and what is perceives as suppression of minorities? The Israeli government, hoping not to permanently damage Turkish relations (perhaps the Islamists will be thrown out of power in due course) can’t be so blunt. But there’s no need for the rest of us to confuse matters.

Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful).

U.N.’s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful).

Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn’t contradict Heller’s argument that if it’s not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, “questioned the legality of the blockade” and said that it was not just wrong but that Israel’s claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone’s mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller’s analysis is indeed “contradicted.”

UPDATE: Heller, responding to this post, writes: “I’m glad Bernstein believes that any legal conclusion reached by the UN regarding Israel’s actions is by definition plausible.” No, what I actually said is that a legal conclusion reached by the UN that is favorable to a position argued by Israel is a position “that position cannot be deemed beyond the realm of even plausible argument,” because the U.N. is an unsympathetic (or in the best-case scenario, non-sympathetic) forum.

Heller also writes that “Bernstein admits that my central claim about blockade was completely accurate.” No, I acknowledged that one particular claim wasn’t contradicted by the Report, which is obviously a far cry from stating that it “was completely accurate.”

But I can play this game, too. So I thank Kevin Jon Heller for publicly declaring that I’m the best-looking, smartest, and most reasonable law professor in North America, and that I’ve persuaded him that Human Rights Watch is not an objective arbiter of human rights in the Middle East, but an organization with an anti-Israel ideological agenda motivated by the far-leftist inclinations of its Middle East staff.

It’s fascinating to listen again to this talk by HRW Middle East and North Africa director Sarah Leah Whitson (starting at 16:53) from the Summer of 2009. The topic was “Human Rights in the Middle East.” Syria and Libya get barely a mention. Yemen isn’t mentioned at all. Israel gets by far the most negative attention, followed by Egypt and Jordan–apparently singled out because they are U.S. allies and have peaceful relations with Israel. The Palestinian Authority comes in for some criticism for “not representing all the Palestinians,” i.e., not being anti-Israel enough. While Israel is accused of engaging in “apartheid” and routinely violating international humanitarian law, such that the U.S. should rethink its support of its government, Hamas is referred to as the “elected government” in Gaza, which the U.S. shouldn’t try to undermine.

The weirdest moment in the talk, though, is when Whitson points out that no Arab country allows freedom of speech, the cornerstone of a free society. What one example, of all possible examples, does she use to illustrate the lack of freedom of speech? That Arab governments tried to prevent their populations from protesting Israel’s actions in Gaza in the war against Hamas in late 2008/early 2009. Just, WOW!

NGO Monitor comments on now HRW’s obsession with Israel left it unprepared to deal with the emerging events in the Arab world here.

As you may have noticed from the news, Israel has been experiencing large civil protests/demonstrations, primarily over the price of housing, but generally over “cost of living issues.” Given that Israel currently has the best-performing economy in the OECD, with over 5% annual GDP growth and 6% unemployment, you may be wondering “what the heck is going on?”

First, one has to understand the disproportionate importance of housing in the Israeli psyche. It’s the “Israeli dream” to own one’s own apartment. Most Israelis live with their parents until they marry, and then expect to buy an apartment, immediately, usually with significant financial help from the newlyweds’ parents. Renting is socially unacceptable, a sign of failure. Moreover, Israelis are distrustful of the stock market (which used to be incredibly corrupt), and consider an apartment not just a home but their primary investment.

Meanwhile, housing costs in Israel have skyrocketed over the last several years. For example, my sister-in-law’s apartment, which she purchased six years ago for $300,000, now fetches almost $1 million–a result of a booming economy, immigration, foreign purchases (especially by those with valuable Euros), speculation, and pent-up demand following a long downturn during the Second Intifada. And of course despite the recession in most of the world, the healthiest economies–Canada, Australia, Israel China–still seem to be the in the throes of the housing bubble that popped in the rest of the world, thanks to loose monetary policies.

Israel is especially vulnerable to boom-bust real estate cycles because the vast majority of land is publicly owned, and getting permission to build on this land, or even to tear down existing small buildings and replacing them with high-rises, requires going through a convoluted and sometimes corrupt process that takes years. By the time builders respond to demand, a bust may be at hand.

The obvious solution, which the Netanyahu government is pursuing, is to make it easier to build new housing, which will increase supply and reduce prices. The protestors, however, aren’t interested in this, and instead want government housing assistance and government-built housing, for two primary reasons.

First, Israelis, despite a great liberalization of their economy since the mid-80s, are overall probably no less socialists at heart than, say, Greeks, and no more sympathetic to or understanding of, free market economics. I say, “increased supply with steady demand will bring lowered prices.” They would respond, “increased building will simply put more money into the hands of real estate developers, who will continue to price gouge.” The idea that housing prices are set by supply and demand, rather than by greedy developers, isn’t well accepted. (Consider how even in the U.S., politicians blame “greedy oil companies” when gas prices rise.)

The second reason is more subtle: young Israelis who want to be able to afford housing don’t actually want prices to come down. The unaffordable apartments that currently exist, after all, are owned by their parents. While Americans typically see an inheritance from their parents as a windfall, Israelis see it as an entitlement. Your average 20- or 30-something Israeli includes their parents’ apartment, its value divided by the number of siblings, in their long-term wealth. So, oddly enough, the protestors want affordable housing so they can buy apartments and fulfill the “Israeli dream,” but they don’t actually want prices of existing apartments to fall!

There are two additional factors feeding the protests. The first is that public employees–teachers, physicians, social workers, and so on–feel put upon. The private sector is booming, and salaries have risen dramatically. But public sector salaries haven’t kept pace. In Israel, where it’s not considered at all rude to ask a new acquaintance how much money they make a month, everyone keeps score of such things, and government workers resent how far they’ve fallen behind people with similar education, especially high-tech workers.

Second, Israel has a ridiculously high cost of living compared to the U.S., where many Israelis have relatives and even more have spent time traveling or working. Many things–cars, gas, electricity–are heavily taxed, and many other items are costlier than they need to be due to import restrictions or monopsonies inherited from Israel’s Socialist days. I know several Israeli families who own clothes dryers–a relatively new thing in Israel–but rarely use them because electricity is so expensive. [There are some obvious free market solutions to these concerns, but, again, relatively few Israelis are sympathetic to markets.]

One thing that’s NOT really feeding the protests, contrary to some media reports, is “inequality.” One hears often from the Israeli left that Israel has among the greatest disparities in income of all industrialized countries, but those statistics are largely an artifact of the fact that while almost all “secular” Israeli adults are employed, in the Arab sector (20% of the population) very few women work, and in the Haredi sector (over 10% of the population) 2/3 of men don’t work. Also, the center of the country has far more economic opportunity than the periphery. Given that the protestors are overwhelmingly secular young Jews from the center, these concerns are quite obviously not at the forefront of the protests.

I’ve been thinking for some time about blogging about the concept of “enemies”, and how modern universalist liberalism has trouble dealing with the possibility that in some conflicts there is no mutually acceptable solution (at least not from the subjective perspective of the participants in the conflict), and thus one really has a conflict among enemies, not simply a misunderstanding that can be resolved through negotiations and compromises. [[And sometimes, it should be pretty clear to a liberal of any stripe which side has the reasonable position.] To take an extreme example, if an Islamist extremist insists that violence against the West is necessary until Islam dominates Europe and North America, that extremist is an enemy, regardless of what the West does or doesn’t do. The West can either fight or submit.

Rabbi Daniel Gordis makes a similar point in the latest issue of Commentary, discussing specifically rabbinical students who express hostility to Israel, though his point could be extended to many on the Jewish left:

If you asked a Jew at any other time in the history of our people whether or not he had enemies, the notion that he should consider the possibility he did not have enemies would have occasioned a blast of the mordant humor that has helped keep our tribe alive through the millennia. Today, however, the discomfort with the idea of “the enemy” and the intolerability of being in a drawn-out conflict has led these students to the conviction that Israel must solve the conflict. The Palestinian position is not going to shift; that much they intuit. But having enemies, and being in interminable conflict, is unbearably painful for them. So Israel must change. And if it will not, or cannot, then it is Israel that is at fault. In which case, it makes perfectly good sense for these future Jewish leaders to refuse to purchase prayer shawls manufactured in Israel and to insist on demonstratively remaining seated as the prayer for Israeli soldiers is recited in their rabbinical-school communities. They will do virtually anything in order to avoid confronting the fact that the Jewish people has intractable enemies. Their universalist worldview does not have a place for enemies.

A version of Gordis’s point came up in a recent email discussion I had with a correspondent whose daughter is a left-wing Reconstructionist rabbi, who feels alienated from Israel. The correspondent posited that Israel’s drift to “right-wing” politics is alienated young men and women like his daughter. I responded that current Israeli right-wing politics would have been literally unbelievable to an Israeli leftist twenty-five years ago. A Labor government led by a non-peacenik general withdrew Israeli force from Lebanon and offered to split Jerusalem, and with Yasser Arafat no less! Ariel Sharon withdrew from Gaza! Benyamin Netanyahu accepts a two-state solution! The purported rightist Avigdor Lieberman advocates large-scale territorial exchange with the Palestinians, including parts of pre-1967 Israel! What Israeli leftist circa 1986 could have even dreamed of such progress?

In short, while the Israeli left has largely collapsed under the weight of Oslo, the Israeli right has moved to positions once associated with the center, even the center-left and beyond. The Netanyahu government is far less “right-wing” than Yitzhak Shamir’s twenty years ago.

If young leftist [and let me emphasize yet again that I'm not talking about mainstream liberals, which would be maybe half the Jewish community, but political active "leftists," who are in the single digits but are overrepresented in various places, including, apparently, non-Orthodox rabbinical seminaries] Jews are abandoning Israel, it’s because of their own internal ideological journeys, not because Israel has become increasingly “right-wing,” as one often hears, which is counter-factual. In part, I think, the collapse of the Israeli left leaves the American Jewish left with no one to identify. In part, I suspect Gordis is right and they can’t stand the idea of an enemy, or a potentially intractable conflict. And in part, it’s a matter of heuristics: if you aren’t very learned on the Arab-Israeli conflict, do you take your cues from the Jewish community, which on the whole is highly supportive of Israel, or from the community of American leftists, which, unlike in the past, has made hostility to Israel a defining ideological issue? Which is your primary identity? Who do you trust? Whose views do you implicitly identify with, someone like Gordis, or someone like Noam Chomsky? For many leftist Jews, including rabbinical students, the answer seems clear, for reasons that Gordis may or may not correctly identify elsewhere in his piece.

I’m not going to discuss the moral, legal, or diplomatic implications of this move. But I do recall (though I don’t have links handy) that various “human rights” activists have been claiming since Israel’s withdrawal from Gaza that Israel was nevertheless “occupying” it via a blockade. Moreover, even if the blockade didn’t amount to an occupation it was immoral, illegal, and so forth.

When asked why they leveled so much criticism at Israel for the blockade, but almost none at Egypt, which was also blockading Gaza, the only coherent answer that was forthcoming was that Israel was somehow making Egypt enforce the blockade. The sensible response was that Israel can’t “make” Egypt do anything, and that Egypt enforced the blockade because Egypt thought it was in its own interest to do so.

Now that Egypt has ended the blockade, we can definitively say that the sensible response was correct. The current Egyptian government has apparently decided that its strategic interest in containing Hamas is secondary to the public opinion brownie points it will receive for easing the Palestinians’ plight–not to mention that the policy wasn’t very effective at containing Hamas.

It would be nice to think that our friendly neighborhood human rights activists will now admit they were wrong, that Egyptian policy re Gaza wasn’t somewhat being secretly controlled by Israel, and that more public pressure on Egypt, instead of myopically focusing on Israel, might have ended the blockade sooner. But I’m guessing that we will see exactly zero such admissions, because it would amount to admitting the unhealthy and unjustified obsession with Israel that is prevalent in “human rights” NGO circles.

UPDATE: Just for example, here are two pieces from Oxfam referring to an Israeli blockade of Gaza, with no mention of Egypt. Here’s a lengthy piece from Human Rights Watch calling on the U.S. to pressure Israel to end the blockade, which has only the following about Egypt: “Human Rights Watch also called on Clinton to press Egypt to open the Rafah border crossing with Gaza to allow humanitarian supplies to enter from there. According to recent news reports, hundreds of truckloads of aid are rotting on the Egyptian side of the border.” Note that HRW couldn’t even be troubled to advocate that Egypt open its border with Gaza, only that it allow in humanitarian aid–something Israel, the main object of HRW’s critique, was already doing.

FURTHER UPDATE: There’s a very good reason that Egypt has until now refused to open its border with Rafah. Egypt wants Gaza to be solely Israel’s responsibility, but Egypt occupied Gaza from 1948 to 1967, and there are many in Israel who would like to see Gaza become Egypt’s responsibility once again–which would of course make it less likely that the West Bank and Gaza will become a unitary Palestinian state in the future.

Any move to integrate Gaza’s economy with Egypt’s could be a slippery slope leading to Egypt taking more and more of a role there.

Someone concerned solely with humanitarian issues has no stake in this debate, and would be just as happy to see goods flowing through Egypt to Gaza as through Israel. But then you have to assume that all the talk of Gaza’s “humanitarian crisis” is really primarily about humanitarian concerns, and not about broader political objectives.

He says exactly what I was thinking: Israel necessarily gives up tangible assets (land) for promises of peace. Israel is willing to do only if her government trusts the U.S. When President Obama ignores promises made to Ariel Sharon by Obama’s predecessor in exchange for withdrawal from Gaza–that American policy started from the premise that Israel would keep the settlement blocs–that trust evaporates.

In 1956, Israel withdrew from Sinai in exchange for an American promise that it would use military force, if necessary, to keep the Suez Canal open to Israeli shipping. When Nasser closed the Canal in 1967, Johnson reneged on this promise. Backed into a corner, Israel preemptively struck at Egypt and Syria, and Jordan, too, when it chose to involve itself in the conflict.

Contrary to received wisdom, an insecure Israel is a belligerent Israel. U.S. policy for the last forty-plus years has been to try to ensure that Israel feels secure so that its peacemaking instincts prevail. I think that if Obama has indeed tossed out Bush’s promises from only seven years ago, the cause of peace is being harmed.

The nonsense spewing from the various usual suspects–the European left, left-wing NGOs, leftist international law experts [update: here's an excellent example from an Israeli commentator]–regarding the takedown of Osama bin Laden by U.S. forces should provide an important lesson for advocates of Israel.

The hostility emanating to Israel emanating from these sources is not, primarily, a result of anti-Semitism or other Jewcentric mental maladies. Rather, it is a natural result of a cauldron of ideologies–pacifism, anti-liberalism, Third Worldism, hostility to the West, warmed-over Marxism, and so on, combined with a dash of naive human rights idealism–that dominates certain intellectual circles.

Israel receives more grief than almost anyone else from such circles for several reasons: (1) because of its precarious security situation, it uses military force more regularly than other potential targets; (2) because of its precarious political situation, it is far more vulnerable to such criticism than, say, the U.S. (which will studiously ignore criticism of the OBL operation); and (3) unlike in the U.S, Israel has a significant and influential domestic far left that encourages and magnifies such criticisms. Indeed, given universal military service among Jewish non-Haredi adults, Israel often faces criticism from its own leftist soldiers and reservists of the sort quite rare in the U.S.

That’s not to deny that some leftist critics of Israel are anti-Semites, and that an even greater number are content to play on anti-Semitic themes when they find it rhetorically useful. But let’s face it: if you can’t get the leftist Europeans, NGOs, etc. behind a surgical strike on Osama Bin Laden, they are hardly going to approve of much broader Israeli military action in Gaza or Lebanon.

Given that many Jewish supporters of Israel have left-wing tendencies themselves (though the hard leftist types have long abandoned Israel), it’s far more comfortable for them to identify anti-Semitism as the main source of anti-Israel hostility. But the first step in defeating an intellectual enemy is to identify that enemy’s underlying, motivating ideology, and, in this case, for the most part, anti-Semitism isn’t it.

As I noted a few days ago, Justice Richard Goldstone wrote a Washington Post op-ed last week in which he states that contrary to the implications of his eponymous report, Israel did not deliberately target civilians in Gaza during Operation Cast Lead.

Human Rights Watch contributed heavily to the content of the Goldstone Report, and has been among the most ardent promoters of the Report. Kenneth Roth, HRW’s director, suggests that HRW has nothing to apologize for because “HRW promoted the Goldstone report’s recommendation for investigations, pushing both Hamas and Israel to investigate its own war crimes. We never endorsed the report’s finding of an Israeli policy to target civilians.”

I originally referenced lying in the title of this post, but that proved to be a distraction, because, as I noted, Roth’s statement isn’t quite a lie, but perhaps a dishonest obfuscation. Roth chose his words carefully, and I suppose it’s technically true that HRW never explicitly endorsed a Goldstone Report finding that Israel had a policy of targeting civilians (although, see below, on Oct. 1, 2009, Roth himself pretty much did).

But let’s review some of the statements [I read some, but not all, of HRW's many reports on Cast Lead to find these] that HRW did make, and see whether a reasonable observer would conclude that HRW publicly and loudly agreed with the premise that Israel deliberately targeted civilians during Operation Cast Lead. I think the answer is obvious, and it’s yet another blow to HRW’s credibility, both because of its conflict with Goldstone’s current position, and because of Roth’s current misrepresentation of HRW’s views. (In none of the statements excerpted below did HRW provide any caveats to the effect that the incidents in question may have involved rogue soldiers or units, as opposed to being Israeli policy).

Let’s start with Mr. Roth himself, writing in the Jerusalem Post on Aug. 25, 2009:

Israel could have conducted the war by targeting only combatants [editor: if Israel could have but didn't target only combatants, doesn't that mean she targeted noncombatants, i.e., civilians?] and taking all feasible precautions to spare civilians, as required by international humanitarian law. That is mandated even though Hamas often violated these rules, because violations by one side do not justify violations by the other.

Instead, as Human Rights Watch has shown through detailed, on-the-ground investigations, Israeli forces fired white phosphorous munitions indiscriminately over civilian areas, shot and killed Palestinian civilians waving white flags, attacked children playing on rooftops with precision missiles fired from aerial drones and needlessly destroyed civilian property.

[Update: Roth again, Dec. 29, 2009 : "Israel's view that one prevails in asymmetric warfare by pummeling rather than protecting civilians is not only illegal but also counterproductive."

And one more time, Oct. 1, 2009: "Richard Goldstone's charge that Israel implemented a deliberate and systematic policy to inflict suffering on civilians in Gaza is not, as you said, the 'central organising premise' of his report. Rather it is the conclusion of the report arrived at after a serious examination of the evidence."

Then there is Sarah Leah Whitson, director of HRW's Middle East division, speaking in Saudi Arabia in May 2009: "Human Rights Watch provided the international community with evidence of Israel using white phosphorus and launching systematic destructive attacks on civilian targets."

Whitson again, in a public presentation on July 9, 2009: Israel’s use of white phosphorous and heavy artillery in Gaza were "violations of the law that require you to distinguish between civilians and combatants, and to target only combatants."]

You might object that the views of particular HRW officials don’t necessarily reflect official HRW positions, so let’s move on to various HRW reports, keeping in mind that Roth and Whiston’s views might color one’s understanding of any ambiguities.

HRW, April 23, 2009: “Human Rights Watch’s investigation into the fighting in Gaza concluded that Israeli forces were responsible for serious violations of the laws of war, including the use of heavy artillery and white phosphorus munitions in densely populated areas, the apparent targeting of people trying to convey their civilian status…”

HRW, Aug. 13 2009 [After discussing alleged "white flag" killings by Israeli soldiers]: “The Israel Defense Forces have for years permitted a pervasive culture of impunity regarding unlawful Palestinian deaths”

HRW, Sept. 16, 2009: “The 575-page report, released on September 15, 2009, documented serious violations of international humanitarian law by Israel, with some incidents amounting to war crimes and possible crimes against humanity, including willful killings.”

HRW, November 3, 2009: “It also found that Israeli forces unlawfully used white phosphorous munitions and heavy artillery in densely populated areas, fired upon civilians holding white flags.”

HRW, April 11, 2010: “Between December 27, 2008 and January 18, 2009, Israel’s “Operation Cast Lead” in Gaza killed several hundred Palestinian civilians and wounded many more, some during Israeli attacks that were indiscriminate, disproportionate or at times seemingly deliberate, in violation of the laws of war.”

HRW, Feb. 7, 2010: “Human Rights Watch documented 53 civilian deaths in 19 incidents in which Israeli forces appeared to have violated the laws of war. Six of these incidents involved the unlawful use of white phosphorus munitions; six were attacks by drone-launched missiles that killed civilians; and seven involved soldiers shooting civilians who were in groups holding white flags.”

HRW, Feb. 26, 2010: “Nor has [Israel] conducted credible investigations into military policies that may have contravened the laws of war or facilitated war crimes. These include the targeting of Hamas political institutions and Gaza police; the use of heavy artillery and white phosphorus munitions in populated areas; and the rules of engagement for aerial drone operators and ground forces.”

UPDATE: Amazingly, Amnesty International is similarly obfuscating its prior positions in the wake of Goldstone’s op-ed. Less than two weeks ago, Amnesty proclaimed re Operation Cast Lead: “Both sides violated international humanitarian law. Israeli forces killed civilians using precision weaponry, launched indiscriminate attacks which failed to distinguish legitimate military targets from civilians, and attacked civilian property and infrastructure.”

Today, however, Amnesty issued a press release claiming that “Amnesty International has not argued that the Israel Defense Forces (IDF) targeted Palestinian civilians ‘as a matter of policy’, but rather that IDF rules of engagement and actions during the conflict failed to take sufficient precautions to minimize civilian casualties.” Forgive me if I find the accusations of launching indiscriminate attacks against civilian targets and killing civilians with precision weapons to be rather more serious than “failing to take sufficient precautions to minimize civilian casualties.” Indeed, it’s hard to read the earlier accusations as anything but a claim of deliberate policy.

This leads to the interesting question of why HRW and Amnesty aren’t sticking to their guns. Two answers suggest themselves: (a) having Continue reading ‘Human Rights Watch (and Amnesty International) on Goldstone Retraction’ »