Why Did the JDA Exonerate David Miller?

A few months ago, I described the David Miller controversy as the JDA's "test case": would it ever be used to declare a contested case of commentary on "Zionism" to be antisemitic, or would it only be used to level "not guilty" verdicts? Shortly thereafter, it was revealed that an internal investigation by the University of Bristol into Miller's antisemitism had entirely exonerated him -- largely relying on the JDA to do so. The JDA critics cried vindication.

Now, two signatories of the JDA -- Yair Wallach and David Feldman (the latter is a JDA co-author) -- have written to explain why they think that was incorrect and a misapplication of JDA. They make reasonable arguments for why Miller's conduct should have been viewed as antisemitic under the JDA framework. However, they observe, a definition is only as good as those applying it -- Labour, after all, didn't become  instantly free of antisemitism simply after adopting IHRA. The JDA, too -- any definition, really -- can only be so resistant against interpreters determined to see no evil.

This is a fair point. But I think a little more reflection is needed. Reading Wallach and Feldman, one might get the sense that the exoneration of Miller was simply a matter of bad luck: the university picked the wrong actor to conduct its internal inquiry, who did a bad job reading the JDA and so came to incorrect conclusions. A better reader who exhibited more careful, lawyerly interpretive skills would have come to the right conclusion: that Miller was, under the JDA framework, antisemitic.

I agree that texts alone will provide only moderate, if any, constraints on poor reading. And I agree that the JDA, fairly read, very much can provide support for why Miller was antisemitic. But Wallach and Feldman do not grapple with the cultural meaning of JDA which I think clearly is germane to why it was used, as its critics predicted it would be, as a tool of exculpation. 

As a cultural phenomenon, JDA was introduced to the world as a corrective against the overzealous labeling of things as antisemitic. The "problem" JDA was there to correct was the presumed assumption by IHRA and its adherents that "criticism of Israel is antisemitic"; it corrected this (among other ways) by sharply delinking "Jewishness" and "Zionism" and declaring itself a sentinel against their wrongful conflation. In a real sense, the JDA was less concerned about protecting Jews from antisemitism than it was protecting non-Jews from being (wrongfully) accused of antisemitism. It's not that the former wasn't important, but the latter was what JDA believed was missing from antisemitism discourse and addressing that problem was accordingly the document's value-added. Nearly all of the JDA's marketing and public reception centered around this function, and it was accordingly taken up as the standard by people whose primary orientation towards antisemitism is that of Bruce Robbins: "The real issue here is anti-Semitism; that is, accusing people of it." 

JDA defenders will no doubt argue, as Wallach and Feldman do, that the text of JDA belies any claim that it is unconcerned with what is antisemitic and that, properly applied JDA very much can and does offer resources which can support a guilty verdict as much as a not-guilty one. This is true, but only in the same way that IHRA also has textual resources which could be used to forestall its use as a blunt cudgel against any harsh criticism of Israel. Those cynical of the practical relevance of those textual provisions in assessing whether IHRA actually is enabling or disenabling productive discussion on antisemitism should recognize a similar potential problem in JDA. In either case, the text isn't really what's important; it cannot explain the definitions' actual use. Hence, upon JDA's release I predicted:

[J]ust like IHRA there is a risk that the JDA will be "applied" in a purely symbolic manner divorced from its actual textual mandates. Just as IHRA's language insisting that context matters has been roundly ignored, one can easily imagine persons accused of antisemitism "citing" the JDA for the blithe retort that "criticism of Israel is not antisemitic" while disregarding language in the JDA which arguably encompasses their particular "critique".

And indeed, that does seem to be what happened here.

To the extent that Wallach and Feldman view the failure to identify Miller's antisemitism as antisemitism as a failing, then, it will not do to simply run back to the text and say "but a good interpreter would read this provision differently." It's not really about the text, and it's not really about reading comprehension skills either.

The simple way of identifying the problem is this: on an epistemic level, the JDA looked at how antisemitism discourse proceeded in certain center-to-right Jewish and Zionist spaces and treated the primary problem of antisemitism as one where people where too quick to believe, to listen, to conflate, to say "yes". In "correcting" those mistakes, it overlooked entirely a parallel form of antisemitism discourse, prevalent in many non-Jewish (as well as Jewish left) spaces, where people were eager to dismiss, to brush off, to endlessly dissect, to say "no". The JDA has, perhaps unintentionally but very much predictably, become the standard for the latter branch of the discourse. To a large extent, the JDA would be seen as a failure if it regularly and in high-profile contested cases rendered "guilty" verdicts -- this would falsify the core epistemic assessment which indicted IHRA and supposedly demanded the JDA's adoption in the first place (that in high-profile contested cases too many people are being adjudged guilty of antisemitism when they are, in fact, falsely accused).

It is not accidental nor idiosyncratic, then, when JDA is read and interpreted in a fashion that maximizes its function as an exculpatory tool. Those who read it that way aren't reading it badly, they're just reading it in the context of how it was presented to the world. Since the JDA is a corrective to overuse of antisemitism, it is hardly a misreading when readers adopt a canon of construction where all ambiguities should be resolved against a finding of antisemitism. 

If JDA proponents want to head off those readings, they cannot simply ask for people to be better or more educated readers. They'll have to take aim at the golden calf of their epistemic camp, and decisively declare that the problem of antisemitism is not just "accusing people of it", the problem is as much (if not -- dare I say -- more so) reflexive denials of it. Unless and until the JDA forthrightly tackles that aspect of how we talk about antisemitism, no amount of careful reading will stop the JDA from being almost exclusively seen as and used as a means of exonerating anyone and everyone from antisemitism.

Will You Miss Me When I'm Gone?

I've been reflecting over the past few days about why it is that BDS/anti-normalization causes such existential panic amongst diaspora Jews -- more so, I'd wager, than it does for Israelis. I've written, of course, about how such movements frequently result in considerable regulation and injury to diaspora Jews who actually can be effectively subjected to external policing, so that's part of it. But as I think about it more, the fear comes from a much deeper place. What we fear is living in a community or a polity where people simply do not care what Jews think, and are content to speak upon Jews without being much concerned about Jewish contributions to the conversation.

As is the case in many such fears, this is not an injury that only the Jews have experienced. To take one adjacent example: the Trump "peace plan", constructed as it was with virtually no Palestinian input, was an effort to resolve the issue of Palestine without being especially concerned with what Palestinians had to say on the subject. Unsurprisingly, they were not so keen about being viewed as dispensable to the process of an Israeli-Palestinian accord; in addition to predictably producing a slanted deal, it was also taken -- rightfully so -- as a form of disrespect and degradation. The "deal" was always going to be stillborn, for that reason alone.

In Israel and Palestine, there are plenty of people who cling to the notion that they can "resolve" the conflict without remotely engaging with the perspective of the other, or actually coming to some sort of accord. For Israelis, this is the intoxication of power -- they have the land and the guns and the status quo high ground, and this is the prerogative of dominion. For Palestinians, there is the fundamentalism of despair -- if a negotiated deal is impossibly out of reach and we're stuck in the realm of fantasies, then why not be a maximalist? There's no opportunity cost to going for broke if there is no next-best alternative being passed up, because there aren't any actual alternatives being passed up at all. And of course, for both camps, the allure of unilateralism is bolstered by a resolute sense of righteousness -- why should we have to give an inch to them, when we are right and they are wrong? Where is the justice in being forced to make concessions to the wrongdoer?

Those who adapt this view may, as Abe Silberstein writes, respond to claims that they're being unrealistic by portentously insisting that they are "resisting hegemonic limitations on what is possible." They're not, and most people, at the end of the day, recognize the unyielding if not always convenient truth that a permanent solution to the Israeli/Palestinian conflict will have to entail some sort of accord or agreement between both parties. Neither side will be able to impose a lasting solution to the situation by force of will alone. Even if you think a two-state solution is dead in the water, a binational state would be roughly 50/50 Jewish and non-Jewish; such a state could only function if there is not just nominal but robust commitment to coexistence and mutual recognition. Neither party is going anywhere, which means that whatever the final status of the land is -- be it marriage or divorce -- it will still involve some agreement on how to live together, each party (if only via necessity) attentive to what the other thinks.

But things are different in the diaspora. Here there are not, objectively speaking, all that many Jews. Here, to imagine a world where one no longer need to speak to or think about Jews is not to imagine something impossible or even implausible. It is quite possible, at least in certain communities and spaces, to have a perfectly pleasant, happy, and functioning existence without any meaningful Jewish contribution whatsoever, and so a situation where Jews are not part of one's community is not necessarily a harbinger of dysfunction or chaos.

The BDS/anti-normalization cadre has made a calculated decision that it does not need to hear Jewish contributions. This is not the same thing as saying it actively does not want Jews. It is, for the most part, perfectly happy to have Jews aboard as passengers for the ride. It just means that this movement does not feel as if it has failed or is endangered in any particular way if it doesn't secure Jewish buy-in, and so if it turns out that it is a movement operating mostly independent of Jewish contribution, that does not represent a problem. 

• Morally, this calculation manifests as a view that the correct moral answer to the Israel-Palestine question is "Israel is wrong from root to branch", and while it'd be nice if Jews got onboard the righteous train, their failure to do so does not in any way modulate the right answer to the moral question (which exists entirely independent of what Jews think on the subject). 
• Politically, it is an assessment that their practical campaigns do not need Jewish presence or agreement in order to be functional; they can accomplish what they want to accomplish even if it is perfectly well-known they're doing it over howls of Jewish objection. 
• Finally, interpersonally, it carries an implied belief that there is no real loss felt to the extent one's circle is purged of (most) Jews -- our absence does not register as a cost, or at most is an acceptable one. Relationships with Jews are dispensable.

This belief represents a radical reimagination of the contemporary liberal political landscape -- it is very much not the status quo in the Democratic Party. Right now, the mainstream moral position amongst liberals is that a just solution to the Israeli-Palestinian conflict must be one that is acceptable to both sides; there is no party for whom it is right to simply see crushed.* Right now, it mostly remains the case that political legitimacy on matters of Israel depends on some amount of non-trivial Jewish buy-in -- it is not the case, as is often alleged, that this buy-in is withheld unless one goes all-in for Likud, but it is true that consensus Jewish redlines against extreme anti-Israel positions do roughly track the line between reputable and disreputable Democratic politics. Democrats believe that hearing from Jews (not just from us, but us too -- "necessary" is not "sufficient") and securing Jewish buy-in is necessary to come to the right decisions on Israel, and that hearing from Jews is necessary to come to politically viable decisions on Israel.

Most importantly, the degree to which Jews are imbricated into the fabric of mainstream liberal politics means it would actually be really hard, on a national level, to extricate oneself from ties and relationships with Jews without immense cost. To a far greater degree than any other diaspora nation, Jews are present all over the place in contemporary Democratic politics -- in Congress, in interest groups, among staff, in policy workshops, and in coalitions. To ask your average Democratic politician to detach themselves from any Jew whose views fail to line up with this radical reimagination is to ask them to divest themselves of countless rooted, meaningful attachments, built over years, which will not be dislodged so easily. These relationships are absolutely not dispensable, and as SunriseDC found out, that degree of embeddedness and entrenchment is quite resilient to challenge. 

Yet, unlike in Israel-Palestine, here in the US this radical reimagination is not an impossible reimagination. It is possible to conceive of. Most clearly, the people pushing this reimagination believe that hearing from Jews and securing buy-in from Jews is not necessary to develop morally correct postures on Israel. And as a matter of politics, the necessity of Jewish buy-in may be true on a national level, but it won't hold in every district or locality (there just aren't enough of us), to say nothing of the advantages in staking out a passionate minority position. Moreover, there is a difference even in how, say, Ilhan Omar orients to the Jewish community -- she does, however haltingly and ineffectually, try to engage with us -- and, say, what I've been seeing out of Imani Oakley (from whom antipathy towards engagement with Jewish community appears to be central to her political identity in a way that is unrivaled by any member of Congress I can think of, Squad absolutely included). I know little about the Newark-area district Oakley is running in (as a primary challenger to Donald Payne, Jr.) or about whether Oakley has any real shot at winning, but certainly she senses that overtly positioning herself in this way is not necessarily toxic.

Finally, the imbrication of Jews across liberal politics is true now, but it is not an inevitable fact of nature. So the reimagination begins by chip, chip, chipping away at the ability of Jews to enter into the room freely -- an ideological litmus test here, a campaign against interfaith work there, all serving to gnaw away those interpersonal connections which serve as hedges preserving relationships where political necessity fails. It is a tide lapping at a cliff-face, and the erosion can be slow even as the progress is steady. The DSA maybe can't expel Jamaal Bowman, and Bowman ("given his community") will not ditch his Jewish constituents so easily -- but what would be high cost in the case of Bowman is low cost when it comes to a city councilor in Des Moines or state representative in Raleigh. Old bonds die hard, but new institutions and spaces and visions that lack decades of accreted history will find it much easier to promulgate norms obstructing the development of new ones. Chip, chip, chip -- intervene to stop the connections from forming at the point of conception, and the roots won't be wide or deep enough to serve as a check if and when there is a moment of reckoning.

Cherrie Moraga wrote years ago of how "so often the women seem to feel no loss, no lack, no absence when women of color are not involved.... This has hurt me deeply."** The Jewish terror is that this reimagined politics is one where it is not even felt as a loss if Jews are not present. Ironically, as much as Israel is the fulcrum for the politics' development, as a much as those who promote it insist to high heavens they're just talking about Israel and Zionism, not Jews, it is Jews-not-in-Israel who will feel the brunt of it, because it is they who are actually in a position to be excluded from communities and spaces and places which had been and otherwise would be their own.

Again, it is not that, for those who promote this reimagination, Jewish absence is an affirmative good, necessarily. It's just that the absence isn't seen as a bad; it is not a failing that needs to be rectified. The people who promote this politics would be happy if Jews sign up for the ride, but they aren't going to adjust themselves a half-inch if Jews instead are registering complaints or seek to alter the trajectory. We are permitted to be passengers (or, perhaps, ballast), but not helmsmen. They don't need us, they will not accommodate us, and their assessment of their own path is implacably indifferent to whether it results in our presence or absence. That is a scary thought indeed.

 * Outside of the liberals, and until recently among many liberals, it was the case that many did believe exactly this -- just of Palestinians: they were the bad guys, and a "just" solution is one where they're punished, to hell what they think of it. I won't say that turnabout is fair play, but the howls of protest demanding "nuance" and acknowledgment of "both sides' legitimate claims" from many Jewish organizations do present a dissonant juxtaposition with the happy acceptance of the decidedly unnuanced and one-sided accounts of the conflict that prevailed for many years to the benefit of Israelis.

** Cherrie Moraga, "Refugees of a World on Fire," Forward to the 2nd ed. of This Bridge Called My Back (Watertown, Mass.: Persephone Press, 1983), 33

A Matter of Opinion at NYU

The NYU Review of Law & Social Change, a secondary law journal at NYU, has announced it will be implementing an academic boycott of Israel (it has been condemned by the NYU and NYU law administrations). In doing so, it said two things which should be juxtaposed -- not hard, since they remarkably come in successive paragraphs. First:

[The journal will boycott] Academic activities, projects, or publications “based on the false premise of symmetry/parity between the oppressors and the oppressed or that claim that both colonizers and colonized are equally responsible for the ‘conflict’ . . . .” We find such efforts to be “intellectually dishonest and morally reprehensible forms of normalization” that must be boycotted.

Second:

The academic boycott is an institutional boycott “[a]nchored in precepts of international law and universal human rights,” and “rejects on principle boycotts of individuals based on their identity (such as citizenship, race, gender, or religion) or opinion.” [emphasis added]

So the journal won't boycott a scholar based on his or her "opinions", except insofar as their "opinion" takes the form of proposing ill-defined "symmetry", in which case it "must be boycotted". Roger that.

In fairness, the journal is quoting from the PACBI guidelines here, so its incoherence is not fully its own.

Anyway. Among the calls of the journal is for NYU to shut down its longstanding collaboration with Tel Aviv University, and it says it will refuse to participate in any programs which are "convened or cosponsored" by TAU or other "complicit Israeli institutions" ("complicit", here, is a three-syllable word for "all", albeit with some inchoate amount of room for fudging attached). Query what would happen if NYU Law simply had all of its affiliates (no need to single out Tel Aviv University -- NYU Abu Dhabi, Madrid, and all the rest can play too) provide some pro forma contribution to cosponsor all its events for the year? Could be interesting.