...And if they did fail to investigate, they were insane

There's an old joke amongst lawyers about the "perfect defense argument". It's a series of "in the alternative" responses that seeks to derail the plaintiff's case (usually styled as something simple like "your client broke my vase") at every turn. "You don't have a vase. If you have a vase, my client has never seen it. If he saw it, he never touched it. If he touched it, it did not fall...." and so on. The last line in the litany is that if, after all that, the man can indisputably have been shown to have broken the vase ... well, "he was insane."

It's a joke because, of course, such a strategy is not "perfect", it reeks of desperation and wouldn't be received well by any jury at all. It also smacks of how some folks are responding to Yesh Din statistics showing that a mere 7.4%  of cases of Jewish civilians committing crimes against Palestinians are cleared (which came up in the discussion over my post on the recent "price tag" murder of a Palestinian child). Here is an edited version of the fusillade of responses I've gotten to that figure on Twitter:

• Where did that figure comes from? [Answer: Yesh Din]
• How was it calculated? [Out of 996 complaints with investigation files opened and processed, only 7.4% resulted in any charges being filed.]
• "Charges filed"? Why that metric? [That's basically what's known as the "clearance rate": the ratio of complaints made to arrests and charges made.]
• Who's to say 7.4% is low? Maybe in the US it's even lower. There are plenty of cases where a crime report is filed and nobody is caught. [True, but 7.4% is still really low. The American clearance rates, by comparison, are 47% for violent crimes and 18% for property crimes] 
• What happens if charges are dropped? Maybe the police are investigating the claims but the prosecutors are electing not to file?  [A case where charges are filed and later dropped still counts as "cleared". Since it's a measure of police efficacy, not prosecutorial talent, it stops measuring once the case is out of the police's hands.]
• It includes dropped charges? Then those numbers are squishy; the police could goose the numbers just by arresting and charging random strangers! [There's no evidence that happens over a large scale. This is a very widely used metric of police efficiency.]
• Bah! Your numbers are useless if they don't include convictions [Fine. The percentage of claims which result in a conviction is 3.3% (33/996). The conviction rate (how many charged cases lead to at least one conviction) is 58%]
• Who's to say 3.3% is low? Maybe in the US it's even lower! [This again? Highly unlikely. Even if we assumed every crime was a property crime, the conviction rate would have to be an appalling 18% for the ratio of complaints to convictions to catch up.]
• Maybe the US conviction rate is that low? [It's not. It's 66%.]
• Well, maybe the police aren't charging people because it turns out the complaints are unfounded? [Overwhelmingly, the files are closed because the investigation fails -- no suspect or insufficient evidence to bring a case -- not because the claim is deemed unfounded.]
• Maybe they're not finding enough evidence because no crime occurred! [Perhaps, sometimes. And perhaps sometimes the police gave it their all and just couldn't catch the perpetrator. That's why we use aggregate statistics and used the U.S. as a baseline comparison. Neither explanation is likely to account for 93% of cases.]
• Bah again! I bet almost all claims of "price tag" attacks are lies. Ever heard of Pallywood? [I have. Again, if you think it accounts for 93% of cases, you're delusional.]
• Also, these statistics come from Yesh Din, and they're one of those EU-funded Israeli groups that can't be trusted. [Then by all means provide contrary data from a source you like better. I'm happy to look at it.]
• [Needless to say, actually providing contrary data, or countervailing evidence of any sort, has been met with utter silence].

You'll note that all of these responses are attempts to pot-shot at the data. They don't provide any positive evidence -- empirical or otherwise -- demonstrating that Israel does a good job investigating "price tag" attacks on a systematic level. This is the behavior of people who are guarding a belief that they desperately want to be true, and will cling to it through hell or high water. I don't want to believe that Israel systematically fails to investigate price tag attacks. I prefer it when Israel does a good job, and I'm unhappy when it does a bad job. But the fact of the matter is that they've been a colossal failure in this arena; and it's not an unimportant arena.

Housing Demolition and "Price Tag" Terror

Yesterday, extremist Jewish terrorists attacked the Palestinian village of Duma, killing a one-year old child and seriously injuring members of her family. It is the latest in a wave of so-called "price tag" attacks launched against Palestinians (as well as Israeli targets seen as sympathetic to the Palestinians), purportedly in response to Israeli government actions which curb settlement growth (the moniker "price tag" refers to the attackers wishing to exact a "price" for such Israeli actions). Bibi Netanyahu has called the attack an act of "terrorism" -- as he should -- but there has long been a culture of impunity that surrounds these attacks and ensures they will continue no matter how many outraged statements are released from the Prime Minister's office.

So in terms of the next move, I was wondering whether this might be an appropriate venue to apply Israel's longstanding policy of demolishing or sealing the houses of the terrorism suspects. Israel has long done this as a form of deterrence for suicide bombings or other terrorist acts, and there is some evidence that it has been effective. There are also many strong arguments that it is illegal and immoral; for purpose of this post I'm shunting those arguments aside not because I don't think they have weight, but because I don't think they have any more weight when applied to a Jewish home versus a Palestinian home. If it's going to be off the table, it should be off the table for all. But to the extent that the Israeli political and legal system has accepted this tactic as an anti-terror tool, then it should be used against terrorists of all stripes.

The remaining question, then, is whether it would be an effective tool. And my instincts are that the answer is yes, absolutely it would. Obviously destroying a house has a deterrent effect for straightforward, tangible reasons that apply to all homeowners equally. But in the context of Jewish "price tag" settlers particularly, it also carries significant symbolic meaning as well. The ideological construct that surrounds these attacks are all about land and the inalienable right of Jewish occupancy thereto. A punishment that severs that cord carries with it an expressive power that is far more powerful than a simple prison term. Destroying the homes of Jewish settler terrorists would put a "price tag" on the "price tag"; extremists willing to give up their liberty or even their lives may pause if the immediate effect of their barbarism is the evacuation of their precious outposts.

So yes, I think it's worth considering. And certainly, putting on the table would be a powerful signal that the Israeli government draws no distinction between different terrorisms -- if housing demolitions are good for the goose, they're good for the gander as well.

Made Men

I endorse, 100%, the following posts regarding the "mob justice" surrounding a Minnesota dentist who killed a protected Lion in Zimbabwe: Max Fischer at Vox, Kevin Drum at Mother Jones, and Clark at Popehat. Mob justice is not a good thing. It's not a good thing when imposed upon those who "deserve" it, and it's not a good thing because it is exceptionally poor at accurately identifying desert.

One difficulty surrounding internet outrage mobs, picked up on by Kevin Drum, is that they are often comprised of an infinite-iteration of individualized reactions which, taken in isolation, may be perfectly reasonable and measured expressions of outrage. Not all, of course -- even at an individual level threats of violence or vandalism would be unacceptable. But sometimes its a problem of multiplier. There's obviously nothing wrong with being upset that someone killed a beloved charismatic megafauna. Nor is there anything wrong with being harshly critical of an idiotic newspaper column, or taking umbrage at a crass and offensive tweet. The problem, of course, is there is a huge difference between a few people doing that and millions of people doing it. A controversy which might have been localized to a particular community, and blown over in a couple of days (potentially with offender and aggrieved persons being able to work out an acceptable resolution in person), now are massive international stories that can decimate lives and livelihoods. No individual member of the mob feels like they're doing anything untoward, but the aggregated effect is completely morally indefensible. The problem lies in the balance -- how do we as a collectivity express the "right" amount of outrage, when "amount" is determined largely by just how many voices are contributing to the choir.

I don't have an answer to that question, exactly. I think there are some markers to be on the lookout for, including whether the target is a public persona and whether the focus of the internet narrative is to promote the normal workings of the legal system rather than impose a form of vigilantism. But I do agree with Fischer when he says that mob justice "is not primarily about punishing the crime or the criminal, but rather about indulging the outrage of the mob and its thirst for vengeance." I've written about similar themes in my "Criticism as Punishment" post, and I refer back to it here. When we -- either as a legal collectivity or as a mass of private individuals -- seek to use "punishment" as a mechanism for expressing our own moral outrage, there is an exceptionally high potential for abuse. The next time one (and I include myself in this) think of joining in a chorus of outrage, pause and think whether one's contribution is primarily about correcting the wrong, or about signaling you're in the right.

Jesus the Settler

In an ideal world, one of the nice things about being Jewish is that one would not have to answer the impossibly anachronistic historical thought experiment "What Would Jesus Do?" What Jesus would do is pleasantly irrelevant to either my theology or my political morality, and so by all rights it shouldn't concern me.

In the real world, of course, Jews in the West live under the constant shadow of Christian domination, and so it is often quite essential that we play the tremendously silly game of enlisting Jesus to this or that cause. The latest rendition of this spectacularly stupid charade comes from former Israeli Ambassador to the U.S. Michael Oren, who stated that were he around today, the Bethlehem-born Jesus Christ, along with Mary and John the Baptist, would be "considered Jewish settlers." This statement, in turn, led to a histrionic response by Ryan Rodrick Beiler (for many years a Mennonite activist in East Jerusalem) who contended that Oren "may have crossed the line from belligerence to blasphemy" (an interesting choice of words, to be sure) in so labeling Jesus.

I want to reiterate, once more, what a profoundly stupid exercise this is. Taking historical figures from the vastly different geopolitical and moral context that existed 2000 years ago and importing it into the present-day is one of those ridiculous, open-ended rorschach blobs that allows one to see whatever one wants to see. But since we're apparently forced to tackle the subject, let's see if there is in fact anything useful that can be mined out of it.

Oren's case for saying Jesus would be "considered" a settler is very simple:

1) Jesus is a Jew residing in the modern-day West Bank;

2) Jews residing in the modern-day West Bank are considered settlers, therefore;

3) Jesus would be considered a settler. Q.E.D.

Beiler's response is to contend that Jesus, well-known friend of the downtrodden, would in no way affiliate himself with the settlement enterprise. He would instead protest it, and identify himself with oppressed Palestinians laboring under occupation. But this, you'll note, isn't actually responsive. It doesn't disprove Jesus' status as a settler, it just argues that he'd be a settler with left-wing, pro-Palestinian views.

Beiler, for example, cites to the Geneva Conventions (specifically, Article 49 of the 4th Convention) as to what makes a "settlement" a "settlement" and thereby a violation of interntaional law. That Article states that

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Settlements, as most international legal scholars agree, represent such a "transfer" of the civilian population and are therefore illegal. But you'll notice that there is no proviso that says "...unless a member of the transferred population really sympathizes with the cause of those under occupation." Beiler's argument is a non-sequitur -- it isn't a political litmus test that would render our hypothetical modern-day Jesus a settler; it's that he'd be considered a member of the occupying power's civilian population living in the occupied territory.

What is interesting is that Beiler does not make the strongest textual argument for Jesus not being a settler -- namely, that he wasn't "transferred." Jesus wasn't "transferred" to Bethlehem, he was born there. The Israeli government would have nothing to do with it. The problem, of course, is that there are plenty of Jews born inside settlements who are still deemed to be "settlers" even though they were never "transferred" to the territory (the implications of this observation resulted in a fascinating argument between international law scholars Eugene Kontorovich and Kevin Jon Heller -- links collected here). One could make a similar observation regarding persons who move to a settlement from a country other than Israel (e.g., the stereotypical Ariel resident from Miami) -- they would not part of Israel's "own civilian population" and thus would seem to fall outside the scope of the provision. Nonetheless, such persons are "considered" settlers all the time.

The result of this line of thinking does less to make me think that a Jew born in Ariel isn't a "settler" than it does make me continue to believe that we over- (and usually mis-)rely on international legal concepts to frame our understanding of the relevant issues and terms surrounding the Israeli-Palestinian conflict. What is clear is that who is and isn't deemed a "settler" is more of a political and moral judgment than it is a legal doctrinal question, which is why it strikes Beiler as so outrageous to ascribe the label to Jesus -- the problem isn't one of qualification but of implication.

Yet Beiler's position is more than just misguided; it is positively dangerous. Stripped to its roots, Beiler's argument for why Jesus is not a settler boils down to the following:

1) Settlers are bad people;

2) Jesus was not a bad person (in fact, he was a very good person), therefore;

3) Jesus was not a settler. Q.E.D.

This is dehumanizing; it presents the problem of settlements (which are, it is worth noting, a state infraction of international law, not an individual one. The legal proscription contained in the Geneva Convention is against the state which transfers, not upon the person transferred) as one of snarling monstrous settlers who are categorically excluded from the realm of persons who might have sympathy for or advocate on behalf of the Palestinians. As a question of sociology this is assuredly overstated (I remember reading Israeli election returns and seeing that someone from Kiryat Arba voted for Meretz -- though for the life of me I wonder what his or her story was). Obviously, settlers come in all shapes and sizes, from religious true-believers to people searching for cheaper property values to, yes, the snarling monsters who carry out the "price tag" terror attacks. Moreover (and this is equally important), that large swaths of the settler community are not snarling monsters does not in any way obviate the injustice the settlement enterprise imposes upon the Palestinian people, for injustice is not the sole, or even primary, enterprise of snarling monsters. This is the truly dangerous wrong Beiler commits: the conflation of bad structures with bad people; the worse the structure is, the more irredeemable the people implicated inside it are. Ultimately, this logic can lead only to dehumanization and hatred, and will always fail as an avenue of just social change.

In sum, Oren's logic is right: Jesus, as a Jew living in the West Bank, would be considered a settler today. This does not mean that he would not take pro-Palestinian positions; nor would the possibility of him taking such positions justify the settlement enterprise. The contours and legitimacy of Israeli settlements exist independently of the character of the individuals who live inside them, and it is a serious mistake to conflate the two.