Back In The Fold

Pope Benedict XVI has reinstated four Catholic bishops previously excommunicated by Pope John Paul II for their implacable opposition to liberalizing reforms. One of the bishops is a Holocaust denier. Jewish organizations are, predictably, outraged, but at this point I'm just resigned. Pope Benedict has also given greater prominence to a prayer wishing for the conversion of the Jews. Though I was optimistic at first, his tenure in office has been outrage after outrage.

So what else is new? I think institutional Christianity has long since proven that its default position is of hostility to Jews. Sometimes, it deviates, for a little while, but by and large it eventually reverts to the mean. The Catholic Church is no different, and I don't really think that these problems are ones that are traceable simply to this Pontiff. When Pope Benedict passes on, the odds are much, much better that his successor will be of his cut, rather than that of John Paul II.

In Struggle and Out

Over at Alas, a Blog, Jack Stephens has a post excerpting from an interview with Juliano Mer-Khamis, a Jewish man who directs a theater company for Palestinian children in Jenin. Mr. Stephens has his own blog, The Mustard Seed, where he writes about various facets of, and resistance to, oppression from a Christian Marxist perspective. This blog has a grand total of two posts on anti-Semitism, in one of which he grates his teeth and criticizes Hamas after a particular brutal massacre in a Jerusalem school. It is "truly sad", he writes, and illustrates "the beef" he has with Hamas:

[W]hile they are a resitance [sic] force to a brutal occupation, they are also a reactionary right-wing religious organization. That being the case, they do not respect women’s rights, they will attack LGBTQI folk, and use religion as an excuse for actions just like above.

Try to keep the outrage out of your voice, Jack! Oh, and the other post has to do with Sarah Palin's pastor. Beyond that, it seems, anti-Semitism is a non-issue. Good to know.

Right now, though, the top post on his blog is entitled "Resistance and Western Domination: 'If you don’t struggle, you surrender,'" and draws heavily on the aforementioned interview with Mr. Mer-Khamis.

There were a couple things that struck me about Mr. Mer-Khamis, and how he, and Mr. Stephens, are the disheartening, and in a lot of ways quite scary, counterweights to the message of Dr. Izzeldin Abuelaish. Much of what he writes is quite tendentious -- he loves guns, he supports guerrilla warfare, he does his part by backing the guns with "knowledge, with culture, with discourse, with free discourse, with theater, with music, with revolutionary songs as we saw in different places in the world." In a lot of ways it is really quite pathetic. But the key graf, that really gets at the problem, comes here:

There’s two ways to deal with this conflict: either you surrender or you struggle. Struggling is not something that you can discuss upon the results or make speculation how it will come out, you just struggle. Because if you don’t struggle you surrender...

When I first read this, I paused. I recognized this logic. In the words of Loki, "I've heard a rant like this before". It is the logic that led to the Gaza operation. Recall my post, what do you do when nothing else works? It seems the answer is, you struggle. You lash out. Israel's Gaza operation was, at the end of the day, motivated by this binary of "surrender or struggle". Either you resign yourself to constant rocket firing forever, or you struggle. Israel could not see another option presented to it. It interprets the global mandate as being "surrender to Hamas". Nobody will stand up for them and say, "you have a right to be here too." Instead, people deliberate if their presence is an affront to God or merely humanity, and then -- dripping with condescension and holier-than-thou attitudes -- decide that, despite their imperialist temerity to want home somewhere, yes, (some of) the Jews can stay, maybe, at Palestinian sufferance. And if Jews die as a result? It happens.

I’m joining them hand by hand, because Zionism is also my enemy, my dream is to live together, Arab, Jews, in one free democratic country and Zionism is exactly the opposite. Zionism is all about ghettoing people into walls, it is about separation, it is about ethnic racism.

This has been one of the hallmarks of the discussion we've been having over the past few weeks on Israel and Zionism. Zionism is not "all about ghettoing people into walls ... separation ... [and] ethnic racism." In some forms it has led to these things, but it is not about them. As Julie put it somewhere, if you can't understand why Jews had the Zionist impulse beyond a naked desire for power, ethnic chauvinism, and imperialism -- if you think Zionism was fundamentally "about" that -- you're not the type of person who has a role to play in reconciliation. By defining the other side as per se unjust, you make it fundamentally impossible for dialogue to proceed. If "reasonable deliberation" (as Iris Marion Young would put it) is one in which both sides approach the table with an aim towards agreement, and one simply fiats that the other side's desires are embodied by injustice (racism, terrorism, ethnocentrism, anti-Semitism), then dialogue is a dead game.

I read the words of Mr. Stephens and Mr. Mer-Khamis and I can't help but think that they really love conflict. They revel in being on a side, fighting the good fight. The glory of the struggle. They need an opponent. They need someone to lash out against. The Jews are on the other side. Their perspective, their own liberation movement -- this is not worth engaging. Trying to work with it, trying to say you are in favor of both the liberation of the Jew and the liberation of the Palestinian, is (as Jack put it elsewhere) akin to being on the side of both "the ANC" and "apartheid". Ironically, the ANC I think would have been very careful to describe itself as being both pro-African and pro-White, refusing to buy into the destructive trap of eternal "struggle" wherein these two groups are implacably opposed.

We are blessed that not all, or even most, Jews and Palestinians agree with Mr. Stephens and his compatriots. Most Jews (inside and outside of Israel) support a two-state solution. As of January of 2008, most Palestinians did too, with 53% lining up behind two states for two people, and only 15% supporting a single bi-national state (the remainder -- 32% -- support only a Palestinian state in Palestine). There are Palestinian leaders -- Dr. Abuelaish, Sari Nusseibeh -- who concur, and are working very hard to check against the rhetoric of eternal struggle put forward by Mr. Stephens (and, for that matter, his pro-Israeli counterparts, such as Avigdor Lieberman). Even if I believed that the bi-national state represented the optimal solution right now (and I don't), if the people whose lives are actually on the line want an incremental solution, then by golly I'm going to incrementalize to the best of my ability. I can't help but observe that yet another blogger with communist affiliations is so committed to the cause of the oppressed that he sees fit to ignore their expressed preferences.

But therein lies the rub: A world in which both Jews and Palestinians agree on a solution (two-states) that is different from the one he thinks is just is a world where these two groups no longer struggle, and that is a threat. Indeed, I suspect Mr. Stephens would characterize it as surrender. I'd characterize it as co-existence and mutual respect, but I'm not him. "Struggle or surrender" are the words of those who so value the struggle that they never want it to end. They love being in a state of permanent conflict, with the security that comes with having a "side", the defiant solidarity, the moral righteousness that comes from rooting out evil. They hate evil more than they love good. Victory does not come from co-existence and agreement. Victory comes when you've managed to grind the other side so far into the ground that they sue for the right to be subjugated. And liberation politics becomes merely a fight to see whose ox is gored.

In the post on his own site, Jack talks up Franz Fanon and argues that resistance to oppression means (is defined by) rejecting "the oppressor's" law, military, rules of war, morality, "etc.". We, of the West, have no right to criticize it (Do Jews? Do the Mizrachi?), for Palestinians are only expressing "approval of their resistance to Israel as they see no other way." The fact that this is self-evidently untrue, as shown by the aforementioned examples, is yet another demonstration of how Jack desperately wants to preserve this binary between violent, apocalyptic struggle, and "surrender".

That one condemnation of Hamas, so many months ago, seems quite far away, doesn't it? And the "etc." is fraught with implication, for I think part of Jack's "etc" is that resistance "means" rejection of the "oppressor's" humanity. Once they are on the other side, they are null entities. Their hopes, their dreams, their pain, their death, are washed away. And then I go back to what I wrote:

The rages of extremism simply cannot survive due accord to all the victims of conflict. It can sustain itself quite well when your side is all that matters -- when you pick a "team" to express "solidarity" with and to hell with everyone else. It cannot, it cannot, survive those who care about the lives and liberation of all people.

The rejectionist stance that Jack exemplifies is a rant we've all heard before. What does he think the more virulent forms of Zionism were but a rejection by the colonized Jew of the law, morality, and structure of their oppressors? Does he think we had a right to do that? Does he think it is consistent with respect for our mutual human dignity? No? Why not? Either because he adopts the absurd position that the Jews who promoted Zionism were not oppressed, or because they were morally obligated to not "resist oppression" in the only way that Jack considers to be meaningful. In other words, we were obliged to accept our subordinated and colonized status.

At the end of the day, Jack isn't opposed to Zionism. He thinks he is, but he clearly isn't, for if the oppressed truly have the right to throw off wholesale the logic, law, morality, and even humanity of their oppressors, then there are precisely zero grounds to critique it. He is merely picking sides: he thinks Palestinian liberation is a more worthy cause than Jewish liberation, and so he is pro-Palestine, and "in struggle" anti-Jew. His prerogative, of course, but I will be fucking damned if he gets to call that leftist.

True progressives understand that desiring liberation for any group only makes sense as part of a broader commitment to liberation for all. Otherwise, it is mere partisanship and self-interest, and that is no basis for making normative claims. Commitment to human equality means breaking the dichotomy between "struggle" and "surrender", and pursuing a third way: listening, cooperation, respect, and co-existence. Jews and Palestinians alike (and their allies) have an obligation to pursue their liberation in a way that is respectful of and makes room for the equal humanity, dignity, independence, and self-determination of the other. Anything else is dressed-up chauvinism.

***

To tell the Jewish people how to resist means imposing onto the entire population ones world view of “acceptable” resistance while at the same time doing nothing to actively fight against the European and Arab theocratic machine which is slaughtering the Jewish people and seeking to recreate a condition of permanent exile and subjugation. To tell the Jewish people to resist in a certain way essentially defeats the purpose of resistance as resistance is that form which the Jewish choose to fight against the absolute and utter genocidal policies of global Christiandom, Islam, and secularism. To tell the Jewish people to “resist” in a certain way that is “better” than what they are doing now is to tell them to subjugate themselves to their oppressors; it is telling them to stop resisting.

The moral superiority and bigotry that Christian, Muslim, and secular intellectuals impose on the Jewish people, as if they are in a morally better place than the otherized Jew, is an utterly appalling line of thinking rooted in Christian, Muslim, and enlightenment "liberal" hegemonic racist thought. It is the pinnacle of thought that is deeply rooted in a history of telling the other how to “cope” with imperialism; that the other should accept the “civilizing” mission of the oppressor nations; that they can’t resist the oppressor nations as it violates international “law,” “human rights,” “morality,” the “rule of warfare,” etc. This can be seen by reading the histories of the ANC to the Zulu resistance, as well as Gandhi's call for Jews to willingly submit themselves to the gas chambers.

To tell the Jewish people not to use Zionism, including occupation, barriers, and settlements, to resist is to assume they all have a unilateral way of thinking and that they fully accept everything these entities stand for as supposed to accepting certain aspects, rejecting others, being critical of some, and readjusting weak positions. It assumes their acceptance of Israel means blind adherence to all of their policies as supposed to the approval of their resistance to anti-Semitic murder as they see no other way. It assumes only the Gentile can see the intricacies while the Jew can only see absolutes as if the Jew cannot comprehend complex thought.

To tell them to not resist in a certain way is to apply the rule of the oppressor onto the oppressed, it implies subjugation to the oppressor. The rule of the oppressor is “international law” and the “rule of warfare.” What have those two concepts (let alone the many others that Gentiles use to justify obliterating the Jewish people anywhere and everywhere, and that certain intellectuals use to criticize Jews for supporting Israel) done for the Jewish people? It has led to their massacre. What has law and morality done to stop the Holocaust or the ethnic cleansing of Jews for the Arab world? Nothing, it has continued to blow hot air with no action.

There are certainly strains of that analysis I find compelling. Nonetheless, insofar as it manifests itself in blind acceptance of whatever strategy Jews use to liberate themselves from constant, murderous, brutal oppression -- no matter how unjust or illegitimate they may be, it must be rejected under any robust conception of common human dignity. Being Jewish and human means a right to resist our oppression, and being Jewish and human means an obligation to do so in morally acceptable ways that are consonant with equal humanity and the human rights of all people. Those are my obligations -- not to "struggle or surrender", but to find a way to co-exist. Jack rejects those, and in doing so betrays his fundamentally reactionary bent.

"I hope that my children will be the last price."

This was one of the most heart-wrenching moments in the entire Gazan war. A Palestinian doctor, Izzeldin Abuelaish, who had worked in Israel for many years and was a bridge of peace between the Israeli and Palestinian people watched as an Israeli shell hit his Gaza home, and saw three of his daughters killed. The only person who he could think to call was an Israeli journalist and friend, who took the call live on air on Israeli television. The journalist, clearly struggling to maintain his composure, tried to explain to the audience what was going on, and helped organized an IDF ambulance that was dispatched to the scene, evacuating Dr. Abuelaish's wounded family members. They are currently being treated in Israeli hospitals.

This video -- the raw, human anguish of a man who just saw his innocent daughters die in a conflict he spent his life trying to end -- is something that must be seen by all those who, like myself, consider themselves pro-Israel. Those are the people I'm speaking to right now. It is not difficult for me to empathize with the Israelis killed, maimed, or terrorized by Palestinian rockets. It is not hard for me to feel alongside them the impotent rage. Of course I think that Palestinian terrorism is incompatible with even the remotest regard for Jewish lives.

But I think there is a tendency -- a trap, you might say -- to believe that because we fundamentally do not want civilians to die, the suffering of those that are killed is somehow alleviated. Is diminished. Good intentions mean that most of the dead men and woman "had it coming", or are "collateral damage". They can kind of be lumped in as one indistinguishable mass of an enemy populace.

The video, here, viscerally brings home the fact that innocent, blameless, good-hearted Palestinians are dying. They're dying brutally, violently, in the arms of their parents or children or friends or relatives. To them, it is going to be little consolation that a militant might have been firing next door, or that an Israeli shell fell a little bit off the mark.

Sometimes, military strikes have to happen. But this is their inevitable result. In any large scale military encounter, there are dozens or hundreds or thousands of scenes just like this. I have to think that we'd be much more hesitant to support violent reprisals if we actually were taking due account of the lives of those who will be shattered in its wake. Dr. Abuelaish's family has to be part of our equation. It can't be abstracted, it can't be waved away, it can't be shrugged off as eggs and omelets. A necessary step for actual peace and reconciliation is the fundamental, unshakable belief that these lives matter, something that requires more than a vague regret that civilians are killed.

After one watches the video, one also must listen to the interview Dr. Abuelaish gave shortly after the events. He is distraught, of course -- how could he not be? But even in the height of his anguish, he calls for peace.

“The peace process is the only one, but to be real. Not playing games. not to play games. That is what is going on. And I think it’s time that people should lead the leaders, not the leaders to lead the people.”

That Dr. Abuelaish can express these sentiments, right now, is nothing short of amazing. It shows the depths of his commitment to peace. Could one really, right now, blame him for rejecting that stance? His good intentions, just like the Israelis, bought him nothing but a shell crashing through his house. Yet here he is, still standing and proclaiming his allegiance to co-existence. The path he takes, has to be our own. You have to watch that video, and be shocked. Be outraged. Be angry. And then, after that -- recommit yourself to the cause of peace and dignity for all persons -- Jewish and Arab, whose lives are being broken by this intractable war.

All of this came from Harry's Place, which continues to show why it is one of the most important liberal Zionist voices speaking today. They also link to this post, which says some other very important things. But the key graf is this:

The ‘we are all Hezbollah now’ crowd had embraced Hamas long before the fighting in Gaza. Theocratic totalitarianism is, after all, the latest fashion accessory for the ‘left’. Their language was redolent with scarcely concealed anti-Semitism and demonstrations against the war were filled with an iconography of hate and menace. Those who favoured the Israeli action in Gaza were only too ready to minimise and justify civilian casualties, attempt to discredit inconvenient witnesses for their supposed bias, and, at the margins, flirt with anti-Arab racism.

So whose side do we choose? How about ours? This is a left blog, written from different perspectives though sharing some common values; social justice, anti-racism, equality, respect for human life, a hatred of oppression. That’s the side to be on. Hold hard to our principles and use them as a guide, rather than rely on a blind partisanship. Some of the best commentary chose this path and called for long-term action for a settlement. Too often it was drowned out by the clamour of the committed.

The post focuses on the myriad of distractions trotted out by pro-Israel and pro-Palestine voices alike, all united by the common characteristic of seeking to lay blame and stir rage rather than enforce humanity and forge peace. Many of these people, to borrow from Rev. William Sloane Coffin, hate evil more than they love good. They see conflict as an opportunity to express outrage: to show that they are committed foes or lovers of Israel. They hate the violence enacted upon their "side" so much that they forget to pursue the good -- they forget to act in such a manner as to promote peace.

You look in the eye of an Jewish child who has just been orphaned by Islamic terrorists looking to send a message to Israel, and talk about Zionist colonialism tends to turn to dust. If it doesn't, you've let hate trump good. The Israeli man who felt compelled to scream at Dr. Abuelaish while he was at the hospital bedside of his wounded niece clearly prefers hate to good, because you can't tell me that one can love good and react that way to the presence of an anguished parent.

The rages of extremism simply cannot survive due accord to all the victims of conflict. It can sustain itself quite well when your side is all that matters -- when you pick a "team" to express "solidarity" with and to hell with everyone else. It cannot, it cannot, survive those who care about the lives and liberation of all people.

I believe that more firmly than I do anything else.

Congo Update, Part II

The UN Dispatch has more on the capture of Gen. Laurent Nkunda. This looks like a big breakthrough, less because of what Nkunda himself did (though he's a major negative influence) and more because it signals Rwanda is willing to break off it's destabilizing policies towards its western neighbor. The reason Nkunda's arrest is a bit surprising is because in general he's been viewed as a Rwandan front. The indicators now, however, is that Rwanda is willing to abandon Nkunda and the policies he represents in favor of engagement with the Congolese central government.

This New York Times article also gives some excellent context on what's going on, and really sounds a genuine note of optimism.

Is This Solidarity Too?

Barcelona cancels Holocaust memorial event, claiming that "Marking the Jewish Holocaust while a Palestinian Holocaust is taking place is not right." The linked article cites several other remarks from European officials making similar analogies: a Norwegian diplomat wrote that "the grandchildren of Holocaust survivors are doing the same thing to the Palestinians, as the Nazis did to their grandparents," and the German neo-Nazi party, clearly seeing an opportunity for some historical rehabilitation, is planning a march under the banner of "Stop the Israeli Holocaust in the Gaza Strip."

Fool Me Three Times....

J. Harvie Wilkinson, a judge on the 4th Circuit Court of Appeals, is an interesting fellow. Very conservative, he still manages to skirt under my "radical right-wing" radar, despite several blatant provocations. The first time I came across him, it was in the context of an appalling church/state opinion which basically ruled the state could discriminate against Wiccans. Then it slipped my mind, and so when he wrote a really dumb article reacting to the Seattle and Louisville desegregation cases, I was really surprised.

Now Wilkinson is out in the Washington Post calling for a truce in ideological picks for his circuit (known as the most conservative in the nation). Does he recognize that his court is known might fairly be described as being slanted far to the right? Nope. Did he call for a similar truce or ceasefire at any point in the Bush administration. Of course not.

A little suspicious, don't you think?

Congo Update: Nkunda Arrested

Rebel Congolese General Laurent Nkunda has been arrested in Rwanda. I don't see any more information, but previously it appeared as if Nkunda had lost control over his rebel force, and the new leadership was prepared to reintegrate into the national government.

A Wise Wrinkled Green Thing

Benjamin Cardozo, then Chief Justice of the highest court of New York state, appears to be preemptively channeling Yoda in his opinion in Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928): "A time-honored formula often phrases the distinction as one between misfeasance and nonfeasance. Incomplete the formula is, and so at times misleading."

Seriously -- was he high, or what?

The Tears of Our Friends

There is a very important post that went up on the British, pro-Zionist blog Harry's Place a few days back. It refers to some articles written during the Gaza conflict by a man named Ed Husain. I had never heard of him, but apparently, he is a leading member of faction in the British Muslim community that most fervently rejects radical Islam, presses for separation of religion and state, and argues that the violent and theocratic movements that characterize organizations such as al-Qaeda and Hamas are un-Islamic and ought to be critiqued not just on liberal grounds, but on theological grounds as well.

But during the height of the Gaza conflict, he wrote this article. It is angry. It contains some passages that make me uncomfortable. The writers at Harry's Place (which generally is somewhat more "pro-Israel" than I might identify with, but not by much) say that "certain phrases in the articles that were uncharacteristically ill judged." Others have been more vocal in their attacks.

But HP did not join them. He did not chide or break ties. Instead, the writer of this post had this to say:

But look at the context of these articles. Have you seen the pictures of the carnage in Gaza? The human beings on fire, decapitated, reduced to lumps of meat? How did you react to that?

There is absolutely nothing wrong, in my view, with calling for urgent pressure to be put on Israel - as well as on Hamas - to take the risk for peace. You might not support such calls, or think them misguided and naive. But these arguments need to be had.

Can you appreciate why somebody might have a strong emotional reaction to - let us face it - the deaths of many many people, many of whom had absolutely nothing at all to do with Hamas, but were nevertheless killed?

You don’t agree?

Think about your immediate reactions to Islamist outrages against British or Jewish people. How did that make you feel.
[...]
The bottom line is this. What sort of politics does Quilliam [the foundation Mr. Husain helps run] represent?

From what I have seen of their work - and I’ve followed them closely - it is very clear that they stand firm against sectarianism, and are among the best at articulating the bankrupcy of the line that the Islamists have been pushing us to accept, that the the state should “ally with the soft jihadists to ward off Al Qaeda”. They’re genuine opponents of extremism: not extremists who have reined in their rhetoric.

Moreover, it isn’t as if democrats and anti-fascists have so many allies, that we can afford to engage in in-fighting with those with whom we have certain differences of opinion. So, Ed thinks that Israel should be ashamed of itself for its conduct in Gaza? Well here’s some news: lots of other people who are staunch advocates of two states do as well.
[...]
Here’s the bottom line. I may disagree with Ed Husain: but I will not see a friend and an ally being hung out to dry like this.

Lots of death breeds angry people. This is not an unreasonable reaction. Whatever else one thinks about Gaza, I think it is fair to say that the operation occurred because neither Israel nor anybody else has really figured out what's a "good" response to Hamas rocket fire. Doing nothing seems intolerable, but doing this seems unlikely to reign in the attacks either. That's a tough situation to be in, but it's not one that is likely to assuage the hearts of persons whose friends, relatives, neighbors, or brethren die as a result.

Angry people sometimes say things that make us fidget. Angry people sometimes say things they themselves regret. It's no shock that Jews and Palestinians (and human beings in general) are at their most radical in the wake of violence. I know how hard it is to maintain a moderate tone and press for a mutually just solution at the precise time when I'm imagining rockets falling on my head and people laughing at the carnage. Why should I expect the global Muslim community to not have a similar struggle when it their own compatriots are the ones who are suffering?

The post at Harry's Place is important, because it keeps all that in mind. This is a violent conflict. People -- including people genuinely and truly committed to a peaceful, two-state solution -- will get angry. That's not only to be expected, that's totally legitimate. We cannot be so quick to dismiss their emotions -- of grief, of anger, of rage. But we have to continue to move forward in the mutual hope of achieving dignity, peace, and contentment.

I Don't Like It When People Are Obnoxious On My Behalf, Either

Oh, shut up, Mort:

What is the reason President Obama chose this sequence ["We Are A Nation Of Christians And Muslims, Jews And Hindus -- And Non Believers"] when listing these four religions?

Throughout its history, the United States has always been known as a nation based on Judeo-Christian values and heritage.

Moreover, surveys show that there are some 5 – 7 million Jews living in the United States. Most surveys show that there are 1.8 – 2.8 million Muslims living in the United States.

In contrast, in President George W. Bush's Inauguration Speech on January 20, 2001, he said the following, "Church and charity, synagogue and mosque, lend our communities their humanity, and they will have an honored place in our plans and laws."

Oh my God, could you be more annoying? What is this, third grade? Grow up!

Stories of Anti-Semitism

My good friend Richard Jeffrey Newman is collecting stories of anti-Semitism in a post over at Alas, a Blog. He's looking for stories from Jews and non-Jews alike -- his only rule is that you can only give a story: no analysis, no critique of some politician's rhetoric. Just a story.

It's a good project, and an interesting one, and Mr. Newman has specifically told me he's looking to grab from as wide a scope of people as possible. So, if you have a story you'd like to share (anonymously or otherwise), please drop by his comments section and put it down.

Bye-Bye

A toddler says goodbye to President Bush:

[The embedding was screwing with my layout -- just click the link to see the video]

I have to say, on behalf of rhythm-impaired White people everywhere, I thought it was endearing watching President Bush try to dance.

Out With The Yoo, In With The Lederman

Some days the world just works out. One of those days is when anti-torture advocate Marty Lederman takes the job formerly held by John Yoo.

Thomas, Morales, Race, and Crime

City of Chicago v. Morales, 527 U.S. 41 (1999), dealt with the constitutionally of a Chicago ordinance prohibiting "loitering". Specifically, the statute, enacted in response to gang violence, intimidation, and drug dealing, forbid "criminal gang members" from "loitering" with one another or anybody else in any public place. Loitering was defined as staying in any one location without an apparent purpose. The police could order loiterers to disperse, but could not arrest the persons unless they disobeyed the order.

The Supreme Court struck done the ordinance, saying it was too vague. Justice Thomas dissented, and (among other points) wrote the following:

Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so -- the people who will have to live with the consequences of today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are ... people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described, "There is only about maybe one or two percent of the people causing these problems maybe, but it's keeping 98 percent of us in our homes and off the streets and afraid to shop. By focusing extensively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens elevates about all else -- the "freedom of movement." And that is a shame.

I always find it interesting when Justice Thomas brings in his perspective as a Black man when crafting his judicial opinions (and I think that's pretty clearly what he's doing here), precisely because he is (falsely, in my view) alleged to never do so. Each time I read Justice Thomas write, I become more convinced that the claim he simply does not care about Black people -- that he has consciously and deliberately set himself away from the race -- is simply untrue.

After all, the claim Justice Thomas is making here is not unknown in the Black community. Randall Kennedy, writing in (among other locations) his book Race, Crime, and the Law notes that historically Black people in America have faced twin injustices from the criminal justice system: over-enforcement against Black alleged criminals, but also under-protection of Black victims. There is a definitive class within the Black community which, observing the gangs and drugs and street crime that are immolating their neighborhoods, wants nothing else than to see the police come down with an iron fist and crush the criminal element once and for all. That perspective can't be ignored, and it particularly can't be ignored when the communities which are seeking more stringent police enforcement are the same one's that are at risk from police racism -- a statement which may be true in many of America's urban cities. See Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1169-70 (1998).

The trade-off between risk of racist over-enforcement, and racist neglect on the other, is probably real, (some of the more extreme cases, like the recent apparent execution of an unarmed Black man by a San Francisco transit police officer, can be fought against without serious compromise, but over the broad stroke choices will have to be made) but there is something quite pernicious in largely White outsiders deciding where the line ought to be drawn. There are limits on how much pressure we can put upon the Black population via over-policing so we can feel safe, but there are likewise limits on how much we can deny police protection so we can feel like good liberals making our statement about the racist criminal-industrial complex. One Black student in my criminal law class today, reading Thomas in Morales said that while he doesn't agree with Justice Thomas often, something rubs him the wrong way about very abstract appeals to constitutional values when the folks who are getting killed by them are his aunts, uncles, cousins, brothers and sisters.

But. But. This is not the whole story either. When the Morales opinion was released, Steve Chapman wrote an editorial for the Chicago Tribune ("Court Upholds America's Right to Hang Out," Chicago Tribune, June 13, 1999, p. 19) where he made some important points. First, that Justice Thomas, living in wealthy Fairfax County, Virginia, isn't going to be ordered to leave his own neighborhood simply for talking to someone whom, it turns out, is an alleged gang member. Second, that Justice Thomas' perspective on what is good for the Black community is hardly universal, including amongst Blacks themselves. The ordinance in question in Morales, it turns out, received the votes of nearly all the White aldermen on the council, but the Black membership voted 2:1 against it. They were attuned to the risk that what they were being asked to vote for was essentially a new crime of "standing around while Black" -- and that's something of concern to their community too.

So what's the point to all this? The perspective of Justice Thomas, and those Black Americans who agree with them, is not "anti-Black". It is rooted in a particular conception of what the Black community needs in order to flourish and be safe. The mediation between over-enforcement and under-protection is a difficult question, and the line that Justice Thomas seeks to draw is not necessarily illegitimate. But at the same time, it is at the moment a minority view within the community, and both I and Justice Thomas need to be attentive to that. Insofar as the majority of the Black community still sees itself as more imperiled by police over-enforcement than they do by police neglect, that's an opinion I -- as a voter or a policymaker -- have to give significant(not blind) deference to. And Justice Thomas, for his part, has the right to make his case as to what policies best create equality for the Black community. But he has to be mindful that, being of the minority view in his community, listening to him is not exhaustive, or even sufficient, to say I've "engaged" the Black perspective on the subject.

Israeli Supreme Court Overturns Ban

Fabulous news:

Israel's Supreme court overruled on Wednesday a parliamentary panel which had decided to bar Israeli Arab parties from running in next month's parliamentary election.

The court issued its decision in response to an appeal filed by Arab politicians against the ban. A spokesman for the Courts Administration said judges overturned the ban in an unanimous vote Wednesday.

In response to the court decision, Israeli Arab MK Ahmed Tibi said: "We have defeated fascism, but this battle is not quite complete, discrimination has become centralized. We will finish this operation in Israel on the day of elections."

The Central Elections Committee (CEC) last week banned the Arab parties United Arab List-Ta'al and Balad from running in February's parliamentary elections amid accusations of racism from Arab MKs.

The fact that the decision was unanimous is also welcome. Had the ban not been overturned, Arab parties were justifiably threatening to boycott the upcoming election and establish an alternative parliament of their own.

Meanwhile, although these declarations of mine are always moot because I'm not an Israeli citizen, I'm renouncing my allegiance to Kadima for supporting this maneuver, and am throwing myself back into the camp of Meretz (which has long been supported by my home Synagogue anyway), the only Zionist party to oppose the ban.

Back in the Swing of Things Roundup

It was a rough time last week, but things are looking up. Not only was I graced with the presence of the most lovely lady I know, but apparently we got a new President, whom I really dig. So let's get some links off the browser, and jump into this new week with a smile and some can-do spirit! (I'm not sure I'm ever this perky in person. I'm not even sure why I'm this perky now)

The Voting Rights Act: Still a good idea, still deterring dirty tricks.

I actually prefer it when they're explicit about things: A large group of British academics signed a petition expressing their opinion that "Israel must lose" its war against Hamas, as a corollary to their belief in "the right to resist military aggression and colonial occupation".

One thing I will say Israel needs to lose is the instinct to crack down on political protesters. What is with them these past few weeks?

Rachel Maddow explains why she found the whole Rick Warren/Eugene Robinson gambit infuriating.

Rep. Steve King (R-IA) is a massive prick, albeit one who inspires fabulous parodies.

Richard Jeffrey Newman writes far better posts than I do about anti-Semitism -- even though he seriously disagrees with me on much of the topic.

Former Senate Majority Leader George Mitchell is looking like the man who will be tapped to lead Obama's mid-east peace initiatives. Sounds like a good choice.

Recriminations

The cease-fire between Israel and Hamas is holding up so far, but that doesn't mean Hamas is behaving peacefully. Instead, it seems to be emerging from the conflict with an eye towards torturing and sometimes killing its political opponents:

Hamas militiamen have rounded up hundreds of Fatah activists on suspicion of "collaboration" with Israel during Operation Cast Lead, Fatah members in the Gaza Strip told The Jerusalem Post on Monday.
Hamas gunmen in the Gaza Strip.

They said the Hamas crackdown on Fatah intensified after the cease-fire went into effect early Sunday morning.

The Fatah members and eyewitnesses said the detainees were being held in school buildings and hospitals that Hamas had turned into make-shift interrogation centers.
[...]
A Fatah official in Ramallah told the Post that at least 100 of his men had been killed or wounded as a result of the massive Hamas crackdown. Some had been brutally tortured, he added.
[...]
Eyewitnesses said that Hamas militiamen had turned a number of hospitals and schools into temporary detention centers where dozens of Fatah members and supporters were being held on suspicion of helping Israel during the war.

The eyewitnesses said that a children's hospital and a mental health center in Gaza City, as well as a number of school buildings in Khan Yunis and Rafah, were among the places that Hamas had turned into "torture centers."

A Fatah activist in Gaza City claimed that as many as 80 members of his faction were either shot in the legs or had their hands broken for allegedly defying Hamas's house-arrest orders.

Hamas? Using schools and hospitals as bases to enact violent, thuggish, and authoritarian policies? Say it ain't so!

Anyway, the favored punishment seems to be shooting the alleged "collaborators" in the legs, but everything from summary execution to blinding has been reported as well.

My guess is that Hamas is attempting reassert its authority to show that it was not in any way weakened by the Israeli attack. I don't know if it was weakened or not, but in a sense it doesn't matter so long as it is still stronger than the alternatives, and my distinct suspicion is that in Gaza, Hamas remains significantly more powerful than Fatah.

The Beast

Dude, I got to score me a piece of that ride.

The Tough Questions

There are segments of the population -- both of which I probably overstate the importance of, given their over-representation amongst the commenteriat -- who really view situations like the Gaza conflict as simple, cut-and-dry. Either Israel, responding to illegitimate aggression by Hamas, can respond with whatever force it wants, for however long it wants. Or, Israel, being essentially an illegitimate occupying power, cannot respond to any attacks on it by Palestinian terrorists, and accordingly any response is assumed, facially, to be immoral and probably criminal.

Both of these positions are, it should be needless to say, wrong. Israel has a right to respond to terrorist rocket fire, and its response has to be within the bounds of the laws of war.

But what does that entail?

One of the frustrating things about this conflict is that a serious moral evaluation of it required very local and specialized knowledge that few, if any, of the commentators had (and that's true in both directions). The Palestinian death toll for this operation was a little over 1,000 people, with roughly half of those being civilians. This is being decried as far too many. Well, in one sense, that's obviously true -- any amount of death is too many, because our default assumption should always be that people should not have to live in war zones. But within the context of a large-scale counter-insurgency operation in a heavily urbanized area against a foe which uses civilian shields, how does 1,000 dead stack up? I have no idea.

What are the proper rules of engagement for conducting urban counter-insurgency? How does one respond to the large-scale use of human shields, or the more general embedding of military personnel and equipment in civilian areas? These are difficult questions, both from a moral (just war) and technical (military tactics) standpoint. I know the IDF does actually do a lot of work developing rules on both ends of the question. But it is fair to say that the IDF is somewhat of a partisan player in this discussion, and that particularly from the moral side of things it might not be quite right to devolve the rules over to them.

An area I think that could use a good dose of heavy-duty progressive thought is the arena of moral conduction of military counter-insurgency operations -- from large-scale strategic considerations to smaller-scale tactical rules of engagement questions. Without those baseline metrics for evaluation, we really have no way of really warranting a lot of the claims many are making about the justness of Israel's military response on a micro-level. It's precisely that gap, I think, that drives many to the extreme -- they really want to judge Israel (innocent or guilty), a sound judgment would rely heavily on micro-level questions we can't answer (both because the empirical data isn't available and because the metrics by which a judgment could be made haven't been evaluated yet), so we push the debate to the edge of the cliff where those questions fade into the brush in favor of more macro conceptions of who is "right", overall, in the contest.

#44

President Barack Hussein Obama. Yeah, I like the sound of that. Today was certainly a historic day for America, and a moment where we caught another glimpse of the promise of what our nation can become.

Okay -- enough fawning. Time to get to work, people.

Bush Commutes Sentence of Ex-Border Patrol Agents

This was one of the cases on the radar screen, and Bush elected to commute but not pardon two border patrol agents convicted of shooting and killing wounding a fleeing drug smuggler, then trying to cover it up:

Bush's decision to commute the sentences of Ignacio Ramos and Jose Compean, who tried to cover up the shooting, was welcomed by both Republican and Democratic members of Congress. They had long argued that the agents were merely doing their jobs, defending the American border against criminals. They also maintained that the more than 10-year prison sentences the pair was given were too harsh.

Rancor over their convictions, sentencing and firings has simmered ever since the shooting occurred in 2005.

Ramos and Compean became a rallying point among conservatives and on talk shows where their supporters called them heroes. Nearly the entire bipartisan congressional delegation from Texas and other lawmakers from both sides of the political aisle pleaded with Bush to grant them clemency.

Bush didn't pardon the men for their crimes, but decided instead to commute their prison sentences because he believed they were excessive and that they had already suffered the loss of their jobs, freedom and reputations, a senior administration official said.

The action by the president, who believes the border agents received fair trials and that the verdicts were just, does not diminish the seriousness of their crimes, the official said.

Compean and Ramos, who have served about two years of their sentences, are expected to be released from prison within the next two months.

They were convicted of shooting admitted drug smuggler Osvaldo Aldrete Davila in the buttocks as he fled across the Rio Grande, away from an abandoned van load of marijuana. The border agents argued during their trials that they believed the smuggler was armed and that they shot him in self defense. The prosecutor in the case said there was no evidence linking the smuggler to the van of marijuana. The prosecutor also said the border agents didn't report the shooting and tampered with evidence by picking up several spent shell casings.

The agents were fired after their convictions on several charges, including assault with a dangerous weapon and with serious bodily injury, violation of civil rights and obstruction of justice. All their convictions, except obstruction of justice, were upheld on appeal.

A pardon would have been worse -- the men will still have served over two years in prison.

The fact that some people consider these men heroes for shooting an unarmed, fleeing man (even if that man was himself a criminal) is a sign of just far out of control our discourse has gotten on border security and/or the war on drugs. My understanding is that police officers cannot shoot at a fleeing suspect unless it is a case where deadly force would be warranted, and this wasn't it.

Ceasefire Update: Hamas Signs On

The Jerusalem Post reports that Hamas will accede to a one-week ceasefire with Israeli forces, after previously indicating it would decline to do so. In even more heartening news, several smaller (and generally thought to be more radical) Palestinian factions, such as Islamic Jihad, have agreed to the truce, and in fact it looks like pressure from these groups is what made Hamas change its position. Israel, for its part, will begin gradually withdrawing from Gaza today, and if calm holds will allow border crossings to open.

I still think Israel is going to have to realize that some rogue Palestinian element, somewhere, is probably going to manage to fire off a bullet or a rocket during this ceasefire, and not let that derail them. But for the moment at least, progress seems to be being made.