Friday, August 16, 2019

Collected Thoughts on Excluding Omar and Tlaib

I've got another kidney stone. It struck on Monday, and then I felt pain Tuesday, Wednesday, and today. Thursday was my only pain-free day this week, and I have to assume that was the universe balancing the scales and recognizing that the Israeli government's truly terrible decision to exclude Reps. Ilhan Omar (D-MN) and Rashida Tlaib (D-MI) from the country was plenty enough aggravation on its own.

I went on a pretty vigorous tweet storm all through yesterday. Below I bullet point most of what I expressed on that site (which, as you may know, I've taken "private"), but my main takeaway is this:

There's no serious case that either Rep. Omar or Rep. Tlaib presents a security threat to Israel (I've seen some people insinuate that they might incite a riot at the Temple Mount which -- I'm not sure I can physically roll my eyes hard enough). In practice, the "risk" Omar and Tlaib present is simply that they will hear  mean things about Israel and then say their own mean things about Israel. That's the locus of the complaint about the "balance" of the trip; that's the locus of the accusation that they merely want to rabble-rouse. What people are concerned about is they will go to the West Bank, hear people saying mean things about Israel, and repeat those mean things back to American audiences.

But -- and I mean this in all earnestness -- so what? So what if that's what happens? To be clear: I don't think Omar and Tlaib were coming just to say mean things about Israel. But even if they were -- there's no security threat. The state will survive (how pathetic would it be if it crumbled?). It'd be speech. It'd be discourse. That's the price of living in a liberal, free society. Sometimes people say mean things about you. Sometimes those mean things are unfair. Sometimes those mean things are entirely fair. Whatever. It comes with the territory (pun initially not intended, but I'll own it now). It's not a valid basis for a travel ban.

It used to be that Israel was emphatic that "come see us and you'll think better of us". Now Israel is terrified that if people come see them--at least, see them unchaperoned, without a constant guiding hand ensuring they see only the choice parts--they'll think of worse of them. That's the sign of a society in decay. To be sure, I think Omar and Tlaib probably would come away from their visit with a rather grim appraisal of Israel's treatment of Palestinians. But then, there's ample basis to appraise that treatment grimly--there's no inherent foul there. People can come to the West Bank and be honestly appalled by what they see.

Only police states confuse "people saying mean things" with security threats. A free society can survive--and perhaps even learn from--critics giving it grim appraisals. People talk a huge game about how Omar and Tlaib could "learn" from their trip to Israel and Palestine -- and no doubt they could. But the flip side is that Israel, too, can learn from the testimony of Palestinians laboring under occupation, and from efforts to bring that testimony to the fore. It is wrong -- not to mention insulting -- to treat discourse about Israel/Palestine as if it were a one-way street, where wise, omniscient Israeli/Jewish teachers dribble knowledge onto benighted, ignorant Muslims and Arabs.

Below is a recap of my other collected thoughts on the matter (many but not all of which were on Twitter):

  • This was a terrible and unjustified decision. Let's lead off with that and give it its own bullet point all to itself.
  • There is no reason to think that this decision was "what Omar and Tlaib wanted" since it made Israel look authoritarian and repressive. That is projection, to avoid speaking the more uncomfortable conclusion that "Omar and Tlaib might have had a point" in suggesting Israel acts in an authoritarian and repressive fashion.
  • I neither think this decision was solely Trump's doing -- Israel "caving" to his pressure -- nor do I think he played no role in the decision. I think he successfully convinced Netanyahu to do something that he already kind of wanted to do in the first place, even knowing it probably was a bad idea. Trump was like the frat boy friend egging his buddy into doing another shot flight. That Bibi was probably dimly aware it wasn't the wisest decision in the world doesn't mean that he wasn't ultimately fulfilling his own desires. Ultimately, this was a decision of Israel's right-wing government and they deserve to take the full brunt of punishment for it.
  • I understand why everyone is calling this "counterproductive" from Israel, since it will undoubtedly give a huge boost to the BDS movement. But, as I wrote in the Lara Alqasem case, that really depends on what Israel is trying to "produce". In many ways, Bibi benefits from an ascendant BDS movement, just as they benefit from him; and he likewise benefits from a world divided between conservatives who love everything he does and liberals who loathe him. So the fact that this decision puts wind in the sails of BDS, while further lashing Israel to a purely right-wing mast and alienating it from erstwhile progressive allies, is not necessarily a miscalculation -- it's the intended and desired effect.
  • On that note, remember the other day when 21 Israeli MKs wrote to Congress and said that a two-state solution was "more dangerous" than BDS? Well, if you ever wanted an example of what it looks like to trade "increased BDS support" for "kneecapping two-state solution support", this was it (even though Tlaib isn't a two-stater -- Omar is -- this act was aimed like a laser at the most prominent base of support for two-stateism in America: that is, Democrats).
  • On the other hand, shouldn't these right-wing Israelis be more excited to welcome Tlaib than most other Congresspeople? After all, she opposes the "dangerous" two-state solution! Oh wait, I forgot: in her one-state world, everyone gets to vote. That won't do at all, will it?
  • I love Emma Goldberg description of how Israel will slide away from liberal democracy via Hemingway's description of how he went bankrupt: "Two ways. Gradually, then suddenly." And by love, I mean it gives me a sick feeling of recognition in my stomach.
  • Justifying the ban on the grounds that Omar and Tlaib's visit wasn't "balanced" because they weren't meeting with Israeli or Palestinian government figures, only NGOs, and these are bad NGOs -- spare me. To tell visiting U.S. politicians "you can come, but only if you speak with the 'right' people/visit the 'right' sites/speak the 'correct' words" sounds like something you'd hear from the North Korean embassy. Omar and Tlaib should be entitled to visit with whomever they want to visit, and come to whatever conclusions they end up coming to. If those conclusions are unfair, we should trust the ability to defeat them with more speech, not enforced silence. But again: we can't conflate "unfair" with "critical". It's entirely feasible that a fair-minded individual hearing testimony from West Bank Palestinians will come to a sharply critical conclusion.
  • Some of the attacks on the NGOs Omar and Tlaib were scheduled to meet with are the usual chad gadya (has a leader who's linked to a group which kicked the dog ....) nonsense, but there are some groups with some genuinely bad history. I've consequently seen people suggest that we need to also hold Omar and Tlaib accountable for their part in this fiasco for meeting with members of those groups. Fair enough: I'm happy to hold them accountable, weighted and prioritized in proportion to their relative culpability. In keeping with that metric, I might get around to returning to criticizing their draft itinerary sometime in 2035.
  • Fine, one more thing on the itinerary: Am I correct in reading it as taking Omar and  Tlaib either solely or primarily to the West Bank and East Jerusalem? If so, it's entirely understandable why they'd refer to those locales as "Palestine".
  • Rep. Tlaib initially applied for a humanitarian waiver to visit her family, which was approved, but then she backed out given the conditions the Israeli government was going to impose on the visit (basically, not engaging in "boycott activities"). The usual suspects are crowing: she cares less about her family than she does about boycotting! I say (a) Rep. Tlaib is well within her rights to not prostrate herself to the dictates of a foreign government seeking to humiliate her, and (b) what about the past few days gives anyone the confidence in the Israeli government's ability to fairly adjudge what qualifies as a "boycott activity"?
  • The argument that Israel, as a sovereign state, has a "right" to exclude whomever it wants substitutes a juridical argument for an ethical (and practical) one. Sovereign states are formally empowered to do all sorts of terrible and/or stupid things. This was one of them. Hearing nominal anti-BDS folks make this claim -- which could as easily be applied to "universities and academics have the right to collaborate (or not) with whomever they want to" is probably causing another kidney stone to develop as we speak.
  • The other thing is that Israel is proving itself completely incapable of exercising this "right" in a reasonable manner that distinguishes between genuine threats to national security and unhappiness that people sometimes come to Israel and then say mean things. One of the reasons we liberals seek to limit unchecked government power is precisely because of the suspicion that it won't be exercised responsibly or non-arbitrarily.
  • Of course, the fact that Israel also exercises the practical authority to exclude people not just from Israel-proper, but the West Bank as well, gives lie to the notion that Palestinians even conceptually could have their right to self-determination vindicated solely by voting in PA elections.
  • Silver lining: pretty much the entirety of the American Jewish establishment -- AIPAC, AJC, ADL, J Street, Simon Wiesenthal Center -- came out against this decision. Huzzah for that.
  • Tarnish on even that silver lining: the Conference of President's weak-sauce statement on the matter. "Many of the organizations expressed disagreement with the government’s decision", but "Ultimately, the government of Israel made its assessment of the countervailing arguments and acted upon their conclusion." Really, that's what you're giving us? It's amazing how the Conference doesn't care about the "consensus" of the Jewish community when that consensus is a progressive one.
  • When a prominent member of or institution associated with an outgroup does something awful, it is natural for members of that outgroup to feel acutely vulnerable. In part, that's because they know that this awfulness will be wielded against them; in part, that's because frequently they have feelings for or connections to the target person and institution, and it is painful to see them act in such a terrible fashion. Of course, that feeling of vulnerability needn't and shouldn't be the primary story as compared to those directly victimized by the awful behavior. But it is not per se wrong, or "centering", to acknowledge and validate the existence of the sentiment; nor is such an acknowledgment necessarily one that stands in competition with recognizing the direct damage of the instigating act.
  • The next time a Democrat occupies the Oval Office, I have to wonder what sort of penance is going to be demanded from the Israeli government for years upon years of insult and humiliation. It's not going to be back to as it was before. It's not even going to back as it was in the Obama administration. Democrats will -- rightfully -- insist that Israel pay a price for what it's been doing these past four (if not twelve) years. The flipside of recognizing the importance of preserving Israel as a bipartisan issue is that Israel aligning itself fully and completely with the Republican Party is going to come at a cost. It will be interesting to consider what that cost will be.

Tuesday, August 13, 2019

How Much Destruction Has Pearson v. Callahan Wrought?

Today, the Eighth Circuit ruled en banc, in Kelsay v. Ernst, that a police officer violently tackling a non-violent, non-threatening, non-resistant 5'0 130 lbs woman suspected of a misdemeanor, breaking her collarbone, did not violate anyone's clearly established right to be free from the use excessive force. To add insult to injury, the woman the police assaulted was the nominal victim that brought them to the scene -- a friend of hers had tried to toss her into a public swimming pool, someone thought he was assaulting her and called the cops, she tried to tell the police that it was just horseplay and they shouldn't arrest him, and so they naturally responded to this innocent misunderstanding by breaking her bones and arresting her too (for obstruction of justice).

The vote was 8-4, Judge Colloton writing for the majority, with Chief Judge Smith and Judges Kelly, Grasz, and Erickson dissenting.

Sadly, "Eighth Circuit is fine with police officers violently assaulting unarmed, non-violent individuals" is scarcely even news at this point. But Judge Grasz -- dissenting separately (he also joined the main dissent from Chief Judge Smith) -- also made a point to call out the majority for declining to decide whether, going forward, it is indeed unconstitutional to violently tackle a non-violent, non-threatening, non-resistant suspected misdemeanant. This refusal is permissible thanks to a 2009 case called Pearson v. Callahan -- where the Supreme Court said that lower courts could toss civil rights lawsuits solely upon finding that the alleged constitutional violation's unlawfulness was not "clearly established" at the time of the injury, without ever deciding whether the violation actually was unconstitutional. The paradox is that, by refusing to make the latter decision, the law remains not "clearly established", and the government conduct -- even, it must be stressed, conduct that actually is unconstitutional -- is permitted without consequence indefinitely into the future. Even if (and I know this sounds crazy) it is true that violently tackling non-resistant, non-threatening suspects is unconstitutional, the effect of Pearson is that courts never will be compelled to declare it so, and so this unconstitutional abuse can go on in perpetuity.

I'm honestly not sure if any case has a worse ratio of destructiveness-to-public-profile than Pearson. Qualified immunity jurisprudence -- and in particular, the incredible stinginess through which the courts assess whether a given right is "clearly established" -- would still be a disaster without it, but Pearson has turned it into a farce. As Judge Grasz (and several others, including other right-wing stalwarts like Judge Don Willett on the 5th Circuit) have observed, Pearson has locked victims of excessive force into a prison of the court's own jurisprudence, and then allows judges to toss away the key.

If there's anything positive to say here, it's the continued good work from Judge Grasz, who is rapidly becoming one of the great surprises on the Eighth Circuit since his confirmation in 2017 (he had been rated "not qualified" by the ABA after his nomination by President Trump, but was confirmed anyway by a 50-48 vote).