January 4, 2017 § 2 Comments
There are two common responses to Elor Azaria’s manslaughter conviction by the military court today for fatally shooting an incapacitated terrorist in Hebron. One common response is that Azaria is a victim of the system; if you place 18 year old soldiers in a crucible where they must make split-second life and death decisions while facing down terrorists, you should not hold them responsible when things go wrong. Another common response is that Azaria is representative of the system; if you have militarily occupied a territory for five decades while suppressing the occupied population’s nationalist aspirations, then criminal abuses are a feature rather than a bug. There are elements of truth to both of these positions, but the obvious feature that they both share is that they fall back on “the system” to explain what has happened and to argue for their preferred outcome. The focus on the system is important, but it cannot and should not be the sum total of the story in the Azaria saga.
From one perspective, the Azaria conviction shows that the system works. When Azaria was first arrested after the shooting, there was widespread fear on the left that a whitewash would occur. Given the rush of nationalist politicians to defend his actions and visit his family to reassure them that he would not be abandoned – including Prime Minister Netanyahu, who famously called Azaria’s parents to promise them that their son would be treated fairly – the fear was not unfounded. This fear was magnified when Azaria was charged with manslaughter rather than murder despite plenty of evidence that his killing of Abdel Fattah al-Sharif was plotted as an act of revenge rather than an act of misperceived self-defense. Azaria’s lawyers mounted his defense by indicting Azaria’s commanders and the entire military apparatus as part of a conspiracy to cover up the fact that he actually acted properly, and they were bolstered by a public campaign to turn Azaria into a hero. While IDF Chief of Staff Gadi Eisenkot and former Defense Minister Moshe Ya’alon strongly cautioned against treating Azaria as a model soldier and decried viewing him as a scapegoat or martyr, the amount of pressure going the other way was overwhelming. Nonetheless, the court today not only unanimously convicted Azaria of the manslaughter charge, but also delivered a forceful statement in spending three hours reading out the verdict and emphasizing that this was not a close or borderline case. One cannot maintain in the face of the Azaria trial that the rule of law does not exist in Israel.
From another perspective, the Azaria conviction shows just how broken the system is. Azaria was captured on tape fatally shooting a wounded and unarmed Palestinian terrorist fifteen minutes after he was first taken down by another soldier – about as open and shut a case with documentary evidence that exists – and yet the outcry surrounding his arrest and trial was monumental. According to the Israeli NGO Yesh Din, there have been 262 investigations of Palestinian fatalities caused by the IDF in the West Bank and East Jerusalem since 2000, and only 17 of those have resulted indictments. It is easy to understand why after observing the uproar surrounding this particular case. More disturbingly, that Azaria has not only been defended so vigorously in the court of public (and ministerial) opinion but has been lionized as a symbol of what is right with Israel points to dark days ahead. Demonstrators on Wednesday outside of military headquarters where the verdict was delivered chanted, “Gadi be careful, Rabin is looking for a friend,” implying that Eisenkot would be deserving of assassination should Azaria be convicted. That a soldier in an emotionally tough situation who shoots and kills an unarmed assailant is worthy of praise – not sympathy, but praise – and that his supporters view him as a paragon of virtue is bad enough. That he is a vehicle by which the IDF chief of staff and the judges who tried him are threatened with death is reprehensible and a sign that part of Israel has seriously lost its way. Judge Maya Heller, who delivered the verdict today, appears more like someone with her finger in the dike unsuccessfully trying to hold back a tidal wave of overwhelming floodwaters than like Joseph Welch shocking a country back to its senses.
What the Azaria trial says about the system, however, cannot be the last word. Making this solely a story about the success or failure of a system of Israeli policy in the West Bank or a system of Israeli rule of law is a path to disaster. There is no doubt in my mind that what Israel asks of its 18 and 19 year olds is an impossible task. There is equally no doubt in my mind that a heavy Israeli military presence in a place like Hebron – and place that must be visited in person to understand just how soul-crushing the situation there is – guarantees that even the best 18 and 19 year olds will act in reprehensible ways. Neither of these observations should be used to absolve anyone of individual responsibility for his or her actions. Once you take this tack, then chaos and anarchy reign supreme. If every soldier who encounters a violent Palestinian knows that he can wrongfully shoot and claim being a victim of “the system,” it will unleash unspeakable violence while also rending Israeli society in two to an irreparable degree. If every incident of wrongful killing or abuse of Palestinians in the West Bank is met with a larger demand to investigate why Israel is in the West Bank at all, it will similarly create an environment in which there is no incentive for individuals to act with caution or compassion.
This is why the effort already underway to pardon Azaria, championed not only by the prime minister and other government ministers such as Naftali Bennett, Miri Regev, Aryeh Deri, and Yisrael Katz, but also by opposition figures such as Shelley Yachimovich, is a dangerous development. It sends the wrong message about the obligations of soldiers to act legally and humanely and creates a terrible set of incentives through institutionalizing moral hazard. It also validates those who have been treating Azaria as a soldier who acted appropriately but has been scapegoated by the system, while tarnishing the part of the system – the rule of law – that actually worked and has come out of this incident unscathed. But more importantly, it makes this all about the system itself. Do not discount what Elor Azaria did himself, no matter how bad or unfair the situation was in which he found himself. It turns Elor Azaria into a black and white proxy for whether Israel can do no right or Israel can do no wrong, when the reality is far grayer.
December 27, 2016 § 16 Comments
In the wake of United Nations Security Council Resolution 2334, there are two points that need to be emphasized. The first has to do with the resolution itself, the second with how we got here and where it will lead. Both are important, and it is impossible to completely understand either in isolation.
Point one is that UNSCR 2334 is a deeply flawed resolution that should not have passed and that will only make matters worse. This is not because Israel should get the benefit of an American veto no matter what it does, or because settlements are little more than a distraction from the real issues. It is because this particular resolution laid out a line regarding settlements that the overwhelming majority of Israelis do not and cannot accept, treating the Jewish Quarter of the Old City and Amona as one and the same. It is because it made absolutely no mention of the fact that one of the two territories that will make up a Palestinian state is controlled by a terrorist group that poses a far larger obstacle to a permanent solution than any single Israeli settlement. It is because it betrayed a complete and total misunderstanding of the state of Israeli politics and created an immediate incentive for this Israeli government to build anywhere it wants with total abandon. It is because it provided succor to the BDS movement, which is not interested in altering Israeli behavior but in altering Israel itself. It is because it offended Jews across the globe by treating Judaism’s holiest site as occupied territory. To put it bluntly, when expanding the Western Wall plaza is deemed an illegal and illegitimate act of an occupying power, something has gone way off the rails. That this resolution was more balanced than previous ones does not make it objectively balanced, and to assert that anyone who opposes it is ipso facto a shill for settlements misses the reasons why it is problematic.
Contrary to many people whom I respect who have argued that this will be the first step in halting Israeli settlement activity and putting the two-state solution on a firmer footing, I believe the opposite will be the case. By not adopting a policy that distinguishes between settlements, the incentives now run the wrong way. This is an Israeli government that is ideologically committed to building in the West Bank, but were the United States and the broader international community to institute a system by which Israel could build unfettered within the blocs – contingent upon Israel laying down hard borders defining the blocs absolutely – in return for a complete and total freeze outside of them, it would do more to enshrine two states than any UN resolution or sanction could possibly accomplish. The plan from Commanders for Israel’s Security to complete the security barrier and freeze all construction to its east is as wise a policy as exists. If such an understanding were reached and Israel violated it, I would be all for coming down on the Israeli government like a ton of bricks.
Instead, the net effect of what this resolution actually did is to convince Israelis that the world is out to get them no matter what they do, and provide a fresh tailwind to hardline efforts led by Habayit Hayehudi and much of Likud to annex Area C outright. After all, if Gilo and Alon Shvut are no different than Ofra, why bother to make any distinctions at all and suffer a domestic political cost? The countdown has now officially started not only toward a serious push to annex much of the West Bank, but also toward Israel building in previously untouchable places like E-1 and Givat Hamatos. Once that happens, we really will have crossed the Rubicon absent an enormous upheaval. The passage of this resolution makes that crossing a lot closer than it was before Friday.
Point two is that you can inveigh against President Obama all you want, but the one who actually owns this debacle is Prime Minister Netanyahu. If you truly want to be upset at someone, direct your ire at him. When he says that Israel had a commitment from the U.S. for diplomatic protection, he is right, but he entirely elides the reality that this is not a blank check that exists in perpetuity irrespective of changed circumstances. Let’s leave aside for a moment the terribly inconvenient fact that before Friday, Obama was the first post-1967 U.S. president to never allow a resolution targeting Israel to get through the Security Council, making the claims of this being unprecedented utter tripe. When Obama vetoed a similar resolution in 2011, it was before Netanyahu publicly said that there would be no Palestinian state on his watch; before Netanyahu created a governing coalition comprised of a majority of MKs who are on record as opposing two states; and before Netanyahu rhetorically supported and voted for a Knesset bill legalizing illegal West Bank construction that his own attorney-general denounced as violating both Israeli and international law. In Netanyahu’s estimation, is there any line at all that he could cross that would nullify an American commitment to wield its veto on Israel’s behalf? The extremely flawed resolution itself now allows Netanyahu to issue jeremiads against those who would try and remove a Jewish connection to the Western Wall, but it is not Israel’s presence in the Jewish Quarter that led to this move at the UN. Netanyahu brought his country to this point, either never believing the myriad warning signs he received or knowing that this was coming and thinking that it did not matter. Either way, it gives him the ignominious distinction of presiding over a disastrous diplomatic failure that was entirely predictable and entirely avoidable.
Furthermore, this episode reveals the hollowness of Netanyahu’s arguments about Israel’s place in the world. After spending years touting lines about Israel never being less isolated, how the world cares about Israeli high tech to the exclusion of anything it does in the West Bank, and that mutual interests over countering Iran and fighting Islamist terrorism make the conflict with the Palestinians irrelevant, it turns out that the joke is on the prime minister. Look at the countries that voted in favor of this resolution – not abstained like the U.S. did, but actually voted in favor. Egypt, which is supposed to be Israel’s close regional ally and a country about which we are told that fighting ISIS and the Muslim Brotherhood together with Israel outweighs everything else. Great Britain, which under the Conservative leadership of Theresa May was supposed to be Israel’s great supporter in Europe. Russia, which allegedly cares more about purchasing Israeli drones than about anything Israel is doing with regard to two states. China, which also supposedly does not care about the Palestinians but only wants to increase trade ties with Israel and benefit from Israeli ingenuity. All 14 countries that cast votes on Friday cast them the same way. All of these countries, counted upon as some of Israel’s closest relations, stated loudly and clearly that they will not compartmentalize settlements and Palestinian issues from their larger dealings with Israel. That is a fact, and no amount of Netanyahu spin about Start-Up Nation and desalination plants can change that.
Netanyahu’s statement on Sunday calling the vote “the swan song of the old world” and heralding a new era in which a heavy price will be exacted by Israel against countries that oppose its policies could not possibly be more obtuse. You have to seriously lack a semblance of self-awareness to issue a statement like that. This is not a blip on the radar, and it will not be an isolated event should Israel continue down its current path. As rightly proud as Israelis and many American Jews are of Israel’s economic successes and military strength, it is not a world power and it cannot afford to behave like one. Threatening countries like Senegal and Ukraine while studiously avoiding eye contact with China and Russia is the hallmark of a paper tiger, and does not make Israel look any stronger coming out of this episode.
The Israeli government simply cannot have it both ways. Either you get to do what you like, the rest of the world be damned, but you accept the consequences of your actions, or you recognize that no action is taken in isolation and you change your behavior to avoid the consequences even if your principles dictate otherwise. Netanyahu has to choose which road he wants to tread. The choice seems like an obvious one to me, but even for those who disagree, do not make the mistake of thinking that Netanyahu and Israel do not have to choose. Be angry about the UN’s moral bankruptcy and be frustrated with the Obama administration’s myopic decision making; I share those sentiments. But no matter what, if you take one thing away from UNSCR 2334, it must be that the mantra of “settlements don’t matter” is an apocryphal myth. In the real world, actions have consequences.
December 22, 2016 § 4 Comments
Many American Jews are apoplectic about President-elect Donald Trump’s nomination of David Friedman as his ambassador to Israel. A coalition of Jewish groups has come together to actively oppose Friedman’s nomination, and even more groups – including IPF – have issued statements ranging from outright opposition to grave concern. That Friedman represents a stark break from previous ambassadorial residents of Herzliya Pituah is glaringly obvious, but the ways in which this is true have either been lost or intentionally distorted by Friedman’s supporters, who are arguing against strawmen in their boosting of his candidacy. On the other side, those who oppose him most vigorously are – in my view – correct about how extreme Friedman would be as an ambassador, but are assigning him an importance that he does not warrant and are missing an opportunity to make a far larger and more important argument in the process.
Let’s start with Friedman’s champions. There is an odd conventional wisdom developing that opposition to Friedman is due to the fact that he is a lawyer and not a professional diplomat, a position that his supporters mock for its elitism and calcified thinking. Opposition to Friedman is primarily driven not by his biography but by his views (more on that below), but to the extent that people harp on his job, it is not because he is a lawyer who will serve as an ambassador; it is because he is a lawyer who will serve as an ambassador to Israel. Appointing friends or supporters as ambassadors is a timeworn practice, but when an American president does it, it is generally to places like the Bahamas or lesser Western European allies. It is not to extremely sensitive potential hot spots like Israel. Friedman would be the first American ambassador to Israel never to have previously served as a diplomat or worked in a foreign policy government job. No doubt Friedman is an extremely successful and talented attorney, but the skill set he has deployed in that job has little to do with his new one, and Trump’s own inexperience means that his ambassador cannot be a trainee. That Friedman’s supporters think his time spent in Israel as a private citizen or his work fundraising for the settlement of Beit El are as relevant as full-time diplomatic or policy experience is actually insulting to the Israeli government, as it sends the message that an amateur is sufficient as our official representative to our most important regional ally.
The truth, however, is that Friedman’s ambassadorial appointment is not particularly consequential. The U.S. ambassador is a crucial figure in maintaining U.S.-Israel relations, and Ambassador Dan Shapiro has done an excellent job extending that relationship throughout different segments of Israeli society, such as the Haredi and settler communities. But the ambassador’s job is to relay policy, not to make it. While Friedman may have had prime access to Trump during the campaign, his own priorities and preferences are now going to be filtered through Reince Priebus, Mike Flynn, Rex Tillerson, James Mattis, and others. Furthermore, Tillerson and Mattis in particular likely do not share Friedman’s policy inclinations of blowing up the two-state agenda or encouraging Israel to annex the West Bank. Israeli government officials also often have a direct line to the White House and do not need to go through an ambassador, which makes Ambassador Friedman not quite so important a conduit to Trump as campaign Israel adviser Friedman.
There is also the question of how effective Friedman will be if he has to embrace and defend policies to his left, which is a near certainty, and how effective he will be in dealing with the Israeli center and left when he has tarred genuinely centrist groups at home like the ADL as being beyond the pale of his engagement. In short, Friedman may end up being a relatively ineffective ambassador who will marginalize himself through his own positions and imperious attitude toward those who hold different views. He will be a deeply problematic ambassador, but not worth going nuclear over.
David Friedman will not be the variable that causes the death of the two-state solution. He is, however, a serious symptom of a segment of American Jewry’s ailment when it comes to Israel, and what he represents is certainly worth a knock down, drag out fight. Friedman is the personified distillation of the view that Israel need not seize its own destiny and should not seize its own destiny, and that everything in the end will be fine because the status quo can reign forever. He is the perfect envoy to represent Trump because he immerses himself in a post-truth environment where facts are secondary to the reality that you create for yourself. Ignore the warnings of every demographic expert about the population numbers because there is a solitary former Israeli diplomat who will tell you that they are wrong. Pay no heed to what the IDF says about the ticking time bomb of frustrated Palestinians in the West Bank because there are MEMRI videos of imams calling Jews apes and pigs. Marginalize groups like the ADL as extreme leftists on Israel because nobody in your Orthodox community pays them any heed. Cast aside the recommendations of the over two hundred generals that comprise Commanders for Israel’s Security because everyone knows that Palestinian sovereignty in the West Bank would automatically create a terrorist state. Embrace every rightwing axiom and meme, no matter the contrary evidence, because your worldview always trumps any facts that can possibly be thrown your way.
The fight should not be about David Friedman. The fight should be about the approach that views Palestinian rejectionism as the only issue. It should be about the approach that maintains that Israel – alone among the entirety of states on Earth – has completely clean hands and is never in the wrong about anything. It should be about the approach that sees an Israeli civilian presence in the West Bank as enhancing Israeli security rather than harming it, and settlements full of women and children as a bulwark against phantom ISIS hordes about to pour over the border from Jordan. It should be about the approach that views Prime Minister Netanyahu as a brave leader who takes courageous chances for peace and is only searching for an appropriate partner on the other side, rather than as a politician who does the bare minimum in this sphere and demonizes those who criticize him for it as naïve leftists.
Many of these views have a kernel of truth to them, but those kernels are so deeply buried under an avalanche of opposing or mitigating factors that they miss the other part of the story by miles. So long as such attitudes are prevalent in many American Jewish circles, we will continue to get David Friedmans. So by all means get upset about his pending ambassadorship, but do not commit the error of thinking that prevailing against his appointment will signal anything but a hollow victory. Pushing back against Friedman is not nearly as vital as pushing back against the environment that has created him.
December 15, 2016 § 1 Comment
The extraordinary battle that is currently unfolding between President-elect Donald Trump and the intelligence community is unprecedented in the United States. While undoubtedly presidents and the CIA are not always on the same page – and presidents have certainly come to regret relying on CIA assessments that turned out to be inaccurate – the outright dismissal of intelligence agencies by the soon-to-be commander in chief is a first. The ideal situation in democratic countries is for intelligence agencies to be divorced from politics so that political considerations do not interfere with intelligence assessments and intelligence agencies are not tempted to wield their significant power in the political sphere. In picking a very public feud with the CIA, Trump is playing a dangerous game, and looking to Israel yields some clues as to where this skirmish may go as Israel has more experience with the fusion of politics and intelligence than the U.S.
The first lesson from the Israeli experience is that intelligence agencies are able to constrain the policies of an elected leader with whom they do not agree. The infamous but not widely remembered Lavon affair of 1954 is a prime example. Prime Minister Moshe Sharett initiated peace talks with Egypt out of a desire to use it as a stepping stone to a wider regional peace, but in doing so he ran afoul not only of his predecessor David Ben Gurion, but also of hardliners within military intelligence. A large portion of both the military and intelligence establishments were skeptical that any deal could be struck with Egypt and were particularly wary of the surging Egyptian nationalism championed by Egyptian president Gamal Abdel Nasser. In the midst of the negotiations, Israeli military intelligence – possibly at the behest of Defense Minister Pinhas Lavon or possibly at the behest of the head of Israeli military intelligence – planned a false flag operation to set off bombs in Cairo in an attempt to sow chaos and convince the British to remain in Egypt, thereby delivering a blow to Egyptian nationalist aspirations. The plot was exposed, but the damage was already done; Sharett’s outreach to Nasser was successfully thwarted, his term as prime minister was short lived, and the renewed Israeli hardline policy toward Egypt later contributed in part to the 1956 Suez crisis. In this case, Israeli intelligence actively set a course different from that of the Israeli prime minister and won, which is a lesson that Trump may want to keep in mind as he appears determined to set a more conciliatory policy toward Russia while the intelligence community unanimously views Russia as harmfully meddling in American internal affairs.
The lesson from Israel regarding intelligence agencies thwarting an elected politician’s priorities is sharpened if intelligence officials believe that they are being marginalized or mistreated, which is where the comparison to what Trump is doing is particularly germane. Rather than reaching back into the history of the mid-20th century, there is a contemporary Israeli case upon which to draw. The debate in Israel during Prime Minister Netanyahu’s first term of his current tenure about whether the IDF should attack Iranian nuclear facilities was conducted under the enormous shadow of the well-known and unsettlingly public dispute between Netanyahu and his military and intelligence chiefs. IDF chief of staff Gabi Ashkenazi, Shin Bet head Yuval Diskin, and Mossad director Meir Dagan were all vigorously opposed to a strike on Iran while Netanyahu and Defense Minister Ehud Barak argued in favor. That there would be a dispute between the elected political leadership and the appointed security leadership is not an uncommon or unreasonable phenomenon. However, when Dagan felt that Netanyahu was ignoring the Mossad’s conclusions about the prospects of an Iranian bomb – the Mossad believed that it was not imminent while Netanyahu was insisting in speeches that Iran was about to go nuclear – he took his concerns public in a way that was meant to paint Netanyahu into a corner. On Dagan’s last day on the job, he briefed a group of Israeli senior journalists to hammer home how big of a mistake he believed Netanyahu was making in forcing a confrontation with Iran, and then upon retiring made a series of speeches in which he dubbed a strike on Iran “the stupidest idea” he had ever heard. Dagan’s successor, Tamir Pardo, continued Dagan’s legacy of constraining Netanyahu on Iran, publicly declaring that Iran was not an existential threat and that people used that term too loosely; this was the thinnest of thinly veiled barbs directed at Netanyahu, who was describing Iran in precisely such a way.
But there is a corollary to this, which is that intelligence agencies that try to impose their will on political leaders may find themselves undermined at the first opportunity. This can take the form of micromanaging intelligence officials themselves, but it can also take the form of casting aspersions on the entire intelligence apparatus as biased or suffering from misguided views. Netanyahu and his political allies have done this with regard to the Shin Bet over its alleged blind spot with regard to the Palestinians, disparaging former Shin Bet chiefs who warn of the dangers of a continuing Israeli presence in the West Bank as delusional leftists. In this case, it is not a set of analytical conclusions that have been challenged, but the competence of Shin Bet heads more broadly. As the current coalition chair David Bitan said this past summer about Dagan and a host of former Mossad and Shin Bet chiefs, “Something happens to you over the years in these positions…over the years the heads of Shin Bet and Mossad become leftists.” This quote will sound familiar to those who have been listening to Trump dismiss the CIA wholesale and insist that because it was mistaken about Iraq’s weapons of mass destruction it must be mistaken about Russia over a decade later. In addition, as a result of his past clashes with Dagan, Pardo, Diskin, and others, Netanyahu has made sure that the current intelligence chiefs are people with whom he had close ties prior to their appointments and who are less likely to challenge him. This is one of the reasons that the ever-present friction between Netanyahu and the IDF brass no longer seems to invade the intelligence sphere. It is a reminder that intelligence agencies may win battles with their political overseers, but oftentimes the politicians will make those agencies pay for it down the road.
The upshot of all this is that keeping a country and its citizens safe and formulating successful national security policies is far harder when the politicians and the intelligence professionals are waging a war not against a common external enemy but against each other. In Israel’s case, the perception that Netanyahu and the intelligence community are in opposition undermines confidence in both, and will likely lead to greater and potentially disastrous interventions of the political arena in the intelligence arena and vice versa. Let’s hope that Trump and those in his circle realize the dangers associated with confronting the U.S. intelligence apparatus so that the same mistakes born out of the Israeli experience can be avoided.
December 8, 2016 § 4 Comments
The Regulation Bill, which aims to legalize thousands of homes in the West Bank built on private Palestinian land and that passed a preliminary reading in the Knesset on Monday and a first reading yesterday, is a disaster for more reasons than I can list in one place. But that’s no excuse not to try. So (deep breath):
To start with the glaringly obvious, legalizing thousands of homes inside existing recognized settlements and legalizing fifty-five illegal outposts makes a permanent status agreement resulting in a two-state solution farther away than it has been at any time since before Oslo. It hardens Israel’s presence in the West Bank to a degree that makes it impossible to envision a withdrawal of civilians that will not result in violence and bloodshed or exact a crushing emotional toll. Given the location of these outposts, it also enormously complicates what is the best way in the current environment to create a de facto two-state solution on the ground – namely, the plan from Commanders for Israel’s Security to freeze expansion east of the security barrier and renounce any claims to Israeli sovereignty in that territory. Should it pass and become law, the Regulation Bill not only makes negotiations down the road that much harder, it eviscerates Israel’s own unilateral options. It is self-binding in the worst sort of way, since it does not do anything productive in deterring an enemy or reassuring an ally – which is the purpose of the self-binding contained in the North Atlantic Treaty, for instance – but instead creates a self-fulfilling prophecy of doom for Israel’s future. You need to have zero regard for your political successors or for your own political independence to take an action that boxes you in like this to one and only one trajectory going forward.
The bill also puts the lie to long-standing Israeli claims about settlements. Prime Minister Netanyahu gives no quarter in claiming that settlements are in no way the issue in preventing Israeli-Palestinian peace. He instead argues that they are a smokescreen that the other side hides behind to mask its refusal to accept Israel’s legitimacy. Netanyahu has also gotten lots of mileage from his claim that Israel has not authorized any new settlements on his watch, relying on the fact that most outside observers do not know how illegal settlement activity has proliferated. But that rhetorical flight of fancy is now gone for good. Plenty of people, myself included, have never seen settlements as the core issue behind the conflict, but recognize that they are in fact an enormous obstacle and not anything that can be blithely dismissed as insignificant. When you throw any and all restraint to the wind, however, and let settlements swallow up everything else, they become a core issue. Imagine a Palestinian living in Area C whose home is one of the 11,000 structures under a demolition order for having been built without a permit, and he wakes up to see that with a stroke of a pen Israeli homes in the exact same situation are now deemed legal. If you think that his anger is motivated by a desire to drive Tel Avivians into the sea rather than the blatant discrimination and injustice to which he is being directly subjected, you are deluding yourself.
But it is more than just arguing about the role of settlements that is at stake here. I have enormous sympathy for settlers who moved to the West Bank because they were repeatedly encouraged to do so by the government and were provided all sorts of financial incentives to go. They cannot and should not be hung out to dry. Legalizing what was blatantly illegal activity, however, creates a completely different and perverse set of incentives, and accelerates a moral hazard problem that will become impossible to overcome. We are talking about Israelis who moved onto private Palestinian land without permits and without explicit or clear government approval, and even though the bill as drafted only retroactively legalizes the activity if they didn’t know they were building on private land, it now makes everything they did completely consequence-free. There is no reason from now on for anyone to heed the laws or directives of the Israeli government with regard to building in the West Bank, since the precedent has been set that it will be treated as perfectly fine and that someone else will bear the costs. This decimates the rule of law and encourages a wide range of bad behavior that cannot be put back in the box.
The Regulation Bill also reveals a fundamental misunderstanding of what it means to be democratic. A majoritarian theory of democracy, in which leaders and parties that win elections get to do anything they please with no checks and balances, is precisely what political philosophers and creators of longstanding democracies like Great Britain and the United States feared. It is why checks and balances and separation of powers exist. Supporters of this bill seem to think that its almost-certain rejection by the High Court is a sign that the High Court is undemocratic because it is thwarting the will of the people, or that Attorney General Avichai Mandelblit’s determination that the bill is unconstitutional does not matter because nobody elected him. This is precisely how democracies turn into populist non-democracies controlled by demagogues, and supporters of Israel who dismiss this attitude as irrelevant do so at their own peril.
Finally, the legalism being used to justify the Regulation Bill is reaching Orwellian heights, and should not be viewed as anything positive. One of the ironies of the three Soviet constitutions was that they guaranteed a wider range of rights than Western constitutions; if an alien landed on Earth and read the Soviet Union’s constitutional and legal documents, it would assume that the Soviet Union was the most free and liberal country on the planet. For similar reasons, countries in which elections do not matter to the transfer of political power almost all go to great lengths to hold elections and make big shows of how they are respecting the will of the people. A patina of legality is used to legitimize that which is illegitimate. I am not suggesting that Israel is an authoritarian country, and it shares no resemblance to the totalitarian Soviet Union. But the focus on what is narrowly legal – the structures being legalized must have been built with no direct knowledge that they were built on private land, there had to have been implicit or explicit government or municipal support – is designed to make what happens appear as if it is above board. It is not. To seize private land without authorization and pay the landowners compensation whether they are willing to cede their land or not is not legal, full stop. The Israeli High Court does not view it as legal. The Israeli attorney general does not view it as legal. No source of international law views it as legal. Tying it up with a phony legal bow almost makes the entire thing worse.
Make no mistake about what this is. It is not an attempt to right wrongs. It is not an attempt to administer fair and impartial justice. Naftali Bennett, to his credit, has not been cagey but has said what this is proudly and clearly: “The Israeli Knesset shifted from a path to establish a Palestinian state, to a path of extending sovereignty to Judea and Samaria. Let there be no doubt, the Regulation Bill is what will spearhead the extension of [Israeli] sovereignty.” The bill will not pass the High Court and will not become law, but what it says about the current state of political affairs in Israel is as disturbing as anything that has happened since Yitzhak Rabin’s assassination. It is an attempt to radically overhaul Israel’s system of democracy, and that it is playing out in the Knesset does not make it any more democratic.
December 4, 2016 § Leave a comment
I published an op-ed in Ha’aretz today on Keith Ellison’s DNC bid, and why I think the perfect candidate to lead the Democratic Party would be an Ellison who isn’t actually Ellison. The op-ed can be found on Ha’aretz, and the text is reproduced below.
Keith Ellison has a real Israel problem.
Many pro-Israel groups had been skeptical of his candidacy to lead the Democratic National Committee from the start due to concerns over his past affiliation with the Nation of Islam and his criticism of Israel’s use of force in Gaza in response to Hamas rocket attacks.
But the revelation of a 2010 audio clip of Ellison charging that American foreign policy in the Middle East is governed primarily by Israeli interests has significantly complicated Ellison’s efforts to lead the DNC. The Anti-Defamation League, which had initially taken a wait-and-see approach to Ellison, responded to the clip by calling his words “deeply disturbing and disqualifying.” Making the case that Ellison is within the reasonable boundaries of being pro-Israel is far harder now than it was before.
When taking everything into context, the DNC will be better off without having Ellison at its helm.
The Mearsheimerian allegations of Israeli control over American decision making is indeed, as the ADL says, disqualifying, even if Ellison meant it as an example of American Jewish success that American Muslims should seek to emulate. Ellison’s past defense of Louis Farrakhan from charges of anti-Semitism should also not be given a free pass or chalked up simply to youthful indiscretion. It has been evident for decades to anyone with basic comprehension skills that Farrakhan is a repugnant and unapologetic anti-Semite, and defending him personally cannot be waved away as misguided or an error in judgment.
The concerns about Ellison are valid, and given the growing strains within the Democratic Party over Israel, having a figure at the helm who raises alarm bells within mainstream American Jewish organizations is bad for the party and bad for the American Jewish community at large.
There is a tragedy though in how this saga is playing out, because nothing would be better for the pro-Israel cause than having a Keith Ellison at the DNC who is not Keith Ellison. Much has been made about both Ellison’s background and Ellison’s specific statements, but it is only the latter that should sink his DNC bid. Not only should Ellison’s background not disqualify him, it is actually beneficial. That someone like Ellison has worked so hard to be seen as pro-Israel only demonstrates the strength of Israel’s case and shows how support for Israel can remain broadly bipartisan going forward.
Ellison is not a figure whom anyone would normally expect to be a supporter of Israel. He is an African-American Muslim who did not grow up in a particularly Jewish area of the country, came of age after 1967, when Israel’s image as a David began shifting to that of a Goliath, did not have any prominent Jewish mentors, and has a background in radical politics. As a student, he was harshly critical of Zionism and its legitimacy.
Given this biography, one would expect Ellison to be a loud voice in Congress criticizing Israel given every opportunity, and to perhaps even lead an anti-Israel movement akin to what has become common within Britain’s Labour Party.
Yet Ellison unambiguously self-identifies as pro-Israel, supports a two-state solution without reservation, has repeatedly said that Israel has a right to defend itself and expressed the importance of protecting and maintaining Israel’s security, and there is no evidence that he has ever supported or advocated for BDS.
That is not to say that there are not worrisome aspects to Ellison’s record on Israel, from his 2014 vote against emergency Iron Dome funding to his naive misunderstanding of the lengths to which Hamas will go to maintain its arsenal of rockets in Gaza. Nobody will ever accuse him of being Scoop Jackson, and it obliterates the bounds of credulity to suggest that Israel has no better friend.
But the fact is that in supporting two states, in supporting Israel’s right to defend itself, and in rejecting BDS, Ellison falls within a wide pro-Israel tent. That someone with his background embraces these principles is the best case for Israel that Democrats could possibly make. It shows that those who spend time marinating in a toxic anti-Israel stew can be convinced of the importance of supporting Israel through greater exposure and education, and it gives a green light to those who genuinely want to support Israel on most fronts but are uncomfortable with some of its more hawkish policies to not throw the baby out with the bathwater.
In Ellison’s case, this has to be weighed against the parts of the ledger where he disregarded overt and purposeful anti-Semitism and spouted an ugly conspiracy theory about an Israeli veto over American foreign policy, and it should not come out in his favor. But it does not alter the reality that a different Ellison is what Democrats need.
The shifting demographics of the U.S., and particularly those within the Democratic Party, make future bipartisan support for Israel murkier than it has been in decades. The ubiquity of social media that broadcasts every Israeli misstep and the constant news cycle that keeps Israel in the crosshairs are not going away, and they complicate political support for Israel in real ways.
Having someone lead the DNC who embraces Israel despite not being an obvious candidate to do so should be viewed as a strength rather than a weakness. Democrats should be looking for a new Keith Ellison who isn’t actually Keith Ellison.