Guilt By Admiration

Nothing seems to be sticking to Elena Kagan so the opposition is resorting to moves of desperation: “guilt by admiration.”

Since they have so little upon which to attack her, they are challenging two men for whom she has expressed admiration, the late Justice Thurgood Marshall and former Chief Justice of the Israeli Supreme Court Aharon Barak. Most Americans —and especially American Jews who were active during the Civil Rights Era—are quite familiar with the record of Justice Marshall, whose role in American history was established by Brown versus Board of Education, the case he successfully argued before the Supreme Court in 1954, which overturned the segregation of American schools, determining that separate but equal was decidedly unequal and unconstitutional. America is a better country because of that decision and one wonders about the wisdom of this line of attack. Before joining the bench, Marshall won 29 of 32 cases he argued before the Supreme Court and was a hero of the Civil Rights Movement. He was the first of his race to serve on the Court and his record there was exemplary. He also worked in common purpose with the Jewish community in the late 1940s-1960s as both the Black and the Jewish community used the Courts and the American legal system to overcome discrimination and legal prejudice.

But what about Barak? The attack against Barak stems from Robert Bork who was denied confirmation as a Justice in 1987 because of his views on privacy. Bork attacked Barak because of his undeniable record as an activist judge. What is left out of the discussion, perhaps unknown to Kagan’s Republican attackers, but which surely should be known to Judge Bork is why no justice of Israel’s Supreme Court can confine himself or herself to merely interpreting the Constitution. The reason is clear.

Israel has no constitution.

The founders of Israel could not agree on a Constitution because they could not delineate the norms of Israel’s justice system. They could not determine how to define a Jewish and democratic state constitutionally. Religious leaders wanted a constitution founded on the halakhah, which had been developed in exile without the reality of sovereignty and had not considered the value of democracy. Secular leaders wanted a democratic state and the difficulties of mediating between the two was too onerous in Israel’s initial years when the burdens of war, the absorption of immigrants, and economics or statehood were the most pressing issues.  From time to time there are discussions as to the drafting of a constitution but no genuine progress, Israel has some basic laws and conflicting and oftentimes contradictory legal norms.

The Israeli legal system is complex; perplexing and confusing may even be a more accurate description. Some Israeli laws are based on Turkish law; the Ottoman Empire ruled Palestine for centuries. Some are based on English law, a reflection of the Mandate period of English domination and of Israel’s admiration for the Anglo-Saxon legal tradition. Some are based on Jewish law, which has a respected but not all dominant place in the Israeli Courts, much to the discomfort of religious Jews.

The Supreme Court cannot play John Robert’s self defined but much violated role of umpire calling balls and strikes. It cannot rely on precedents in a relatively young nation. As a matter of principle, it considers international norms, contemporary ethics and the responsibilities of a democratic society for all its citizens, and has defined for itself a central role in handling those aspects of Israeli society that politicians just will not grapple with, much to the relief of those politicians who like to play it safe. It serves to define military ethics and to legally and morally challenge the army; so much so that one can say that the Supreme Court has shaped contemporary Jewish military ethics. It is respected by the Arabs who appeal to it to restrain the overreach of government. Most recently, it reminded the Security Apparatus of the State that when it confiscated land for Route 443, it claimed that it was providing better highways for Arab communities, whom it had more recently been restricting from accessing the very roads that were built of Arab lands to serve the Arab populations. It challenged the separate but equal claims—invoking the American case that Marshall argued before his future colleagues—in which Slonim Hasidism would not allow religious Sephardic girls to study with their daughters, claiming that they were insufficiently religious since they ate kitniot on Pesach – as permitted in Sephardic tradition and davened using Sephardic pronunciation, a decision that aroused the protest of perhaps as many as 100,000 Haredim. The Court has shown courage and wisdom and is the single most respected institution in Israel except by the Haredim, who bowed to its will last week, accepting a compromise in practice that they refused to acknowledge lest they inadvertently recognize the Court’s authority.

Barak was a brilliant and creative Chief Justice, worthy of admiration and respect. Judge Bork should know enough not to apply American standards to Israel and he and his Senatorial stooges should be able to do better than to challenge soon to be Justice Kagan with accusations of guilt by admiration. If that is all they have, it is little indeed.

Handle with Care Holocaust Analogies: Why Professor Dershowitz Was Wrong

If I could pass a magic wand over contemporary public discourse both within the Jewish community and beyond it, I would suggest that the pause a bit before invoking any Nazi or Holocaust comparisons.

Irving Greenberg once wrote that “no statement theological or otherwise should be made that cannot be made in the presence of burning children.” John Roth put it far more succinctly: “handle with care,” he admonished all those who would grapple with the Holocaust.

The latest offender is no less an impressive figure that Professor Alan Dershowitz, the brilliant and combative Harvard Professor who most often rises in defense of Israel.

He wrote of Judge Richard Goldstone invoking the Mengele defense “just following orders.” His analogy, however, is historically false. Mengele was never captured and therefore never tried. He died, allegedly by drowningm having eluded a massive manhunt by all the Nazi hunters. He never invoked the “just following orders” defense. In fact, biographers indicate that Josef Mengele, MD, Ph.D. perceived himself as a research scientist undertaking innovative, path breaking medical research – vile, immoral and cruel as they were. As such, it was unlikely that at trial, he would have resorted to such a defense. Learned professors may wish to call Goldstone names but they should not distort the historical record.

One footnote to Mengele’s record: according to Raul Hilberg when Mengele left Auschwitz in mid-January 1945 just ahead of the Soviet Liberation, he took with him the results of his experimentation at Auschwitz, expecting that they would earn him prominence and prestige in the world outside of Auschwitz. According to one source, he persisted in guarding his experiments, bringing them with him to Argentine where he fled, even though they alone could implicate him with his crimes. I suspect even then that he expected vindication.

Questions Worthy of Investigation

There were rallies for Israel in several cities yesterday, not because the events of last week merited support – how do you rally around a public relations fiasco—but because Israel felt isolated and attacked in the aftermath of the botched effort to halt the flotilla of ships that sought to challenge the Gaza blockade, the instinct of solidarity among friends of Israel is warranted.

Supporters of Israel want its action to be understood in context. Context is important but not all important.

Israel withdrew from Gaza in 2005. It dismantled settlements and evacuated settlers unilaterally. Its calculus was demographic; it acted as it should have acted, in its national interest:  8,000 settlers were uprooted and 1.5 million Palestinians were removed from Israeli control and from the ticking time bomb of demography. One cannot have a democratic and Jewish state if Jews are in a minority within its borders.
In the aftermath of Israeli withdrawal, Hamas came to power democratically as a result of an election imposed by the United States despite the opposition of both Palestinian and Israeli leadership. Bombs continued to reign on southern Israeli, most especially on Shederot and though the damage was comparatively slight, there was loss of life and Israelis rightfully felt under siege. No country would tolerate its cities being bombed by its neighbors. Americans are hearing chants of secure the borders in Arizona; imagine what would happen if rockets were being fired from Mexico.  People are sneaking across the border to work in the United States, not to bomb it.

There was a war in Gaza in 2008 that concluded but hours before President Obama was sworn but its political results 17 months later are still unclear. Israelis feel it imperative to blockade Gaza to protect its own civilian population. Egypt has also blockaded Gaza, not halting the smuggling of arms and rockets into Gaza, but at least hampering Hamas’ efforts to arm.

The situation is ugly; the ugliness did not begin with Israeli occupation – it has been ugly since 1948 with Gazans living in squalor and confined to refugee camps under Egyptian rule until 1967, under Israeli rule from 1967 to 2005 – 38 long years—and under self rule since then. The blockade is legitimate. The question is whether it is effective. Are there other tactics that might be employed, other strategies. I am not certain that the question is being asked.

There have been calls for an international investigation, calls that Israel has rejected. Given its perception of the state of international opinion, an international investigation seems like a lynching party. So Israel is seeking to work out the terms of an investigation with the American administration hoping that the United States will once again prove to be an honest broker.

But even without the results of a necessary investigation whether self investigated or under some international umbrella, two things are clear.

The Israeli action resulted in the loss of life because Israel lacked the intelligence necessary to act effectively. It did not understand the nature of the challenge that it would face, the vehemence of the opposition and the determination of some of the so called peace flotilla to provoke violence. It fell into a trap. The result was serious injuries to its own soldiers, loss of life, and near universal international condemnation.

Secondly, the actions undertaken by Israel appear to have been militarily amateurish.

This combination should frighten Israelis and even Israel’s most ardent supporters abroad, most especially because it creates a climate which makes any action against Iran more difficult to mount and even more impossible to defend.

Were Israel to have to act unilaterally against Iran, with or without American approval or support, it would need absolute confidence in its intelligence gathering, and the precision of its military capacity. It would also have to anticipate the military and political fallout that would result from such actions. These were not qualities that were manifest in the botched raid on the flotilla and in its aftermath.

Furthermore, Israel would require confidence in the ability of its government to defend such actions and to handle the diplomatic and public relations aftermath.; such abilities seem beyond the capacity of this government even under the leadership of the media savvy of its Prime Ministers, who does far better defending policies that others have set that defending his own decisions. Even with the strength of Israel’s Ambassador to the United States, Netanyahu himself seems isolated, a lone voice.

This isolation is only intensified by Israel’s withdrawal from the human rights discussions and its inability to engage the human rights issues involved in asymmetrical warfare in a compelling way.

If Iran is truly an existential challenge to Israel’s existence, Israel requires a leadership that seems up to the task. So let us rally round but not confuse our rallies for acceptance of the unacceptable, tolerating the intolerable, defending, accepting and thus enabling failure.

Where’s the Outrage?

Before Michael Oren was named Israel’s Ambassador to the United States, he wrote an article in Commentary that listed corruption as an existential threat of Israel. He might not want to say it today, but let us give credit where credit is due. Oren was right, political corruption is an existential threat to Israel.

If you read the JTA on Tuesday May 25th, two of the news items listed were that former Prime Minister Ehud Omert was being questioned on Jerusalem’s real estate scandal that has also ensnared the former Mayor, who was widely respected for the work of his charity Yad Sarah. Omert is already facing trial on corruption charges for the period that preceded his service as Prime Minister. The former President Moshe Katzav was forced to resign for sexual improprieties that make former President Clinton seem virtuous and now the Police have recommended to the Attorney General that Foreign Minister Avigdor Lieberman be indicted on charges of money laundering.

Some caution is required: a police recommendation is not an indictment and an indictment is not a conviction. All are innocent until proven guilty, but still what does it say about the third generation of Israeli leaders when a Prime Minister, President and Foreign Minister and the former Mayor of Israel’s eternal and undivided capital – a city whose memory is so holy that it is above politics—are subject to indictment and there is barely a ripple in the Jewish world.

What does it say about them?

What does it say about us?

The founding generation of Israel and its leaders lived modestly. Say what you want about David Ben Gurion and Levi Eshkol, about Menachem Begin and Yitzhak Shamir, disagree with them all you want, but they were honorable men who wanted the rewards of their achievement. They wanted to accomplish something. They lived modestly. No one could have imagined that Golda Meir spent a fortune on her wardrobe or at the hairdresser, The founders may have been tempted by many things but not by money. Their successors’ generation was tempted by materialism and power; the third generation seems consumed by it.

This challenge to Israel’s future is fully within Israel’s control. Unlike the problem with Iran, which is now global in scope, this is local. Unlike the tensions with the United States, which depend on both sides to resolve themselves, this is fully resolvable without sacrifice but by the reassertion of values.

The prophets of ancient days would have railed against such corruption: “Zion shall be redeemed by law, its returnees by justice.” Woe to us if corruption becomes the norm, not even worthy of outrage.

Imagination: Ed Koch’s Bold Proposal on Jerusalem

Ed Koch was the long time mayor of New York and a former Congressman. He has been in New York politics and he surely knows the rough and tumble of the political world. One of Israel staunchest supporters, he is quick to attack anyone, even President Obama, who is critical of Israel.

So attention must be paid when Koch proposes a solution to the thorny problem of Jerusalem. He begins with five basic assumptions:

Jerusalem must remain unified; It must remain the capital of Israel; The political needs of its diverse citizens, Arab and Jew, Christian, Muslim and Jew, must be considered; The Holy City is sacred to Jews, Christians and Moslems; • The Palestinians want Jerusalem as their capital as well.

How can all of these seemingly contradictory needs be satisfied?

Koch borrows from his experience in New York City and recommends a Borough System. New York has five Boroughs of unequal size and population and dare we say it – of unequal importance. But it is one city. And the needs of the city are met – sometimes well and sometimes poorly by basic political struggles.

Koch’s suggestion:

To situate the new Palestinian capital in that part of East Jerusalem that is occupied overwhelmingly by Palestinians, allow the inhabitants of East Jerusalem—Jews, Christians, Muslims and those living elsewhere in the city—to pick the state to which to pledge their allegiance and to cast two votes - one in municipal elections for one mayor to govern the entire city of Jerusalem, and a separate vote in national elections related to the Jewish and Palestinian states living peacefully side by side.

Jews living in the Arab Borough of the old city Jerusalem can choose Israeli citizenship. Presumably the Neturei Karta could chose Palestinian citizenship as well. And Arabs could choose the citizenship they desire. The city would remain free and open and the City Council would reflect the needs of its constituents and have to work together to make the whole city work.

I don’t know if Koch’s proposal will work but it does show that once the issue is engaged, once serious thinkers think about it seriously, new possibilities arise.

Just a fortnight ago, another of Israel’s most ardent supporters, the Nobel Prize Winner Elie Wiesel wrote an appeal on Jerusalem. Jerusalem is above politics, the sage wrote. Jerusalem should be left to last; the memories too deep, the issues too irreconcilable. He made a forceful case for Jewish memory, but did treat Christian or Moslem memories. His misstated some basic facts – Arabs can not live anywhere they want is Jerusalem—but Wiesel is a poet and story teller.

Only politics can solve the issue of Jerusalem, not crude crass and unimaginative politics, but wise and visionary politics.

Koch instead proposes that Jerusalem be moved to the top of the agenda. The Psalmist said; “If I do not raise Jerusalem,,,”

New York crusty old former mayor has given us a gift for Jerusalem Day, the day that Jerusalem was unified 43 years ago tomorrow.

If Jerusalem can be solved, then anything is possible.