Great (Israel) Cases Make Bad (International) Law

Yesterday, the ICC pre-trial chamber by a 2-1 vote ordered the ICC prosecutor to reconsider its decision to close its investigation into the Mavi Marmara flotilla incident. I heard about this decision via a column by Bar-Ilan and San Diego law professor Avi Bell, who lambasted it as a completely unprecedented decision that fails as a matter of law and whose legal determinations will by necessity only be applied against Israel. This struck me as intuitively plausible -- I've long thought that international legal determinations made in Israel-related cases tend to be tickets good for this ride only.

But I knew that Bell has somewhat of a conservative reputation on Israel-related issues, and since international law is not my area of speciality, I was curious to hear what more left-wing and Israel-critical voices had to say on the subject. The person I particularly had in mind was Kevin Jon Heller, a international law specialist at the University of London who has been a harsh critic of Israel's behavior from an international law perspective for sometime. That said, just as Bell's more conservative slant doesn't mean that I haven't found his analysis to be thoughtful, likewise I've always found Heller's writing illuminating despite his often adversarial stance towards Israel.

So I was happy to see that Kevin has written a lengthy analysis of pre-trial chamber's decision. And -- in substance though perhaps not in angle of approach -- he agrees with Bell entirely. Heller describes the decision as "deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP's prosecutorial discretion," attacks it as fundamentally misunderstanding the law regarding "gravity" of the alleged offense, and accuses it of applying the wrong standard of review in a bid to "maximi[ze] its own power". He also (in a comment) claims to be "shocked by the nasty tone of the decision", characterizing comments in the opinion as "exceptionally uncivil, unnecessary, and unprofessional."

Heller's post is more technical than Bell's is (which makes sense, since Heller is writing on a international law blog and Bell in a general news column), and so he focuses more on the damage this precedent would do to the ICC as an institution. The crux of his analysis (though you should read him, the expert, rather than me, the novice) focuses on how the decision misapplies the concept of "gravity". Obviously there are many human rights violations that occur around the world, and the ICC cannot investigate all of them. One main guideposts for the exercise of ICC prosecutorial discretion is whether the case is sufficiently "grave". In this litigation, the "case" gravity was an attack on a blockade-running ship that resulted in approximately 10 deaths. But, the prosecutor argued, "case" gravity is not all that matters: it also is relevant who the alleged perpetrators were (low-level grunts, or top military or political leaders) and the "situational" gravity (that is, the broader context in which the particular alleged wrong occurred). The latter, incidentally, is not as one might expect the "situation" in Israel or Turkey. It's the situation in The Comoros, of all places. Why? Because unlike Israel or Turkey, the Comoros is a party to the ICC convention, and the hook for ICC jurisdiction is that one of the flotilla ships was Comoros-flagged. The prosecutor basically reasoned that (a) there was no basis for concluding that any high-level Israeli officials could be found to have engaged in any rights violations and (b) that as part of the Comoros situation this event was an isolated one-off, hence, the allegations lacked sufficient gravity for the ICC to investigate. And this is what the-pre-trial chamber rejected. It basically collapsed the entire inquiry of gravity into "case" gravity -- is 10 deaths sufficiently grave? -- and answered "yes", regardless of the surrounding situation and regardless of whether any high-level officials are implicated. And this, as Heller observes, is completely unworkable as a legal rule -- it would compel the ICC to prosecute dozens if not hundreds of cases that previously would have been obviously of insufficient gravity.

Of course, the counterargument to that is precisely what Bell and I suspect -- that this precedent won't be one because it won't be applied anywhere else. The ICC prosecutor will not, in fact, prosecute every case where there are roughly ten deaths, and the pre-trial chamber will not disturb that decision once made. While he does not explicitly echo Bell's assertion that the putative rule of decision here will be applied to Israel and nowhere else, Heller seems to think that the decision having no practical significance outside the Israel-context is a more likely outcome than the complete overload of the ICC structure.

The legal rules announced in this case, and the broader willingness of the pre-trial chamber to micromanage the prosecutor's decision, will not have any broad resonance. They will not apply to other cases or controversies, they will not meaningfully alter the governing legal regime. They will simply be the latest datapoint for an undeniable pattern: Israel gets treated differently from any other country in the international legal arena. People worried about the effects on the international legal system as a whole can rest easy.

The Tiger is Getting Hungry

Winston Churchill had a famous line about despots who ride about "on tigers from which they dare not dismount. And the tigers are getting hungry." I've often thought the same about the relationship between the Jewish pro-Israel establishment and conservative "Christian Zionist" organizations like Christians United for Israel (CUFI). This article on the Forward, detailing CUFI's newfound willingness to flex its political muscle in defiance of traditional pro-Israel groups like AIPAC, is a case in point.

CUFI has no interest in the bipartisan political strategy of the traditional pro-Israel groups -- it is a conservative right-wing outlet and wants "pro-Israel" to be thought of and take the form of a conservative, right-wing movement. To this end, it has adopted policy positions long thought of as an anathema to the pro-Israel community. The most obvious representation of this is CUFI's position on a one-state solution, where they basically mimic the stance of Jewish Voice for Peace: technically neutral, but functionally all in favor. But unlike fringe groups like the JVP who can be easily dismissed as non-players, groups like CUFI have heft to them. And the mainstream pro-Israel community therefore has not given them the pariah treatment -- even though one-stateism is supposed to be a redline issue that demarcates the borderline of "pro-Israel."

In addition to the substantive objections to this approach, it carries with it a more practical problem as well: it functionally represents the sidelining of the Jewish community from their position as leaders of the pro-Israel community. Groups like CUFI want to assert conservative Christian control over the narrative, and that necessarily means that Jews -- mostly liberal, mostly Democratic, mostly pro-two-states -- will be shunted aside.

Unfortunately, this is a problem that the mainline Jewish organizations brought upon themselves. They were happy to accept "support" from right-wing groups that had no interests in listening to Jewish perspectives and no interest in preserving the status quo where Jews took the lead in constructing the narrative of pro-Israel. They rode the tiger, allowing to gain more and more power until it became too dangerous to dismount it. At that point, its the tiger which calls the shots. And the old guard forced to hang on is little more than a figurehead.

Not Your Everyday White Guy

If this doesn't encapsulate the "white-but-not-quite" racial status of American Jews, I don't know what does:

"Mr. Cardin [Maryland Democratic Senator Ben Cardin] looks like a regular white guy, nice guy, whatever, but in actuality he’s a Jewish white guy," [C-SPAN caller] Eric said Wednesday. "If the public was informed of that by C-SPAN, I think they would take his comments differently."

The caller accused Senator Cardin of "a conflict of interest" regarding the Iran deal because he is Jewish and thus "concerned about Israel."

Second Blush Thoughts on the Iran Deal

On Facebook, I noted that I was working hard to not have an opinion on the Iran deal, because I knew nothing about it and shouldn't come to a conclusion simply via rote mimicry of ideological cohorts. It was observed by a friend, though, that one of my God-given rights as an American is to "have an opinion based on nothing and then broadcast it publicly through as many channels as possible". And as a blogger, I try my best to live by that credo.

I should start by saying that I have not read the deal itself. This is because the technical characteristics of the deal probably wouldn't mean that much to me, and in particular they'd mean nothing out of context (specifically, the context of feasible alternatives). The sources I read to educate myself include Tom Friedman's interview with the President, Jeffrey Goldberg, AIPAC, Marc Goldberg, David Adesnik, Max Fisher's interview with arms control expert Jeffrey Lewis (highly recommended), Douglas Murray, and of course the metric ton of commentary folks have been blasting all across Facebook for the past few days. Here, then, is where I'm at now.

(1) Obviously, the deal can't be evaluated against an ideal world where America stands steely-eyed and strong and Iran capitulates to everything our heart's desire. One makes deals with autocratic regimes pursuing nuclear weapons under less-than-ideal circumstances -- that comes with the territory. Likewise, we can't evaluate the deal based on what we could have gotten 10 years ago. Assessing this deal is a comparative exercise -- how does reaching this accord compare to either no deal or another deal that could be realistically obtained now?

(2) This deal clearly has its eye on one thing and one thing only: slowing down Iran getting a nuclear weapon. It doesn't care about ending Iranian terrorism. It doesn't care about liberalizing the country. It doesn't care about rectifying the nation's many, many human rights abuses. All of these things are important, but they're not the subject of this deal (and were not, realistically, going to be improved by any deal). I have heard the argument that lifting the sanctions will nudge Iran in a more conciliatory direction, but I'm highly dubious. I'm also inclined to agree that the cash flow it is about to see stemming from the sanctions relief will redound to the benefit of the various terrorist groups Iran likes to fund.

(3) I am unconvinced that there was a "better deal to be made". As far as I've seen there were essentially two mechanisms America supposedly had for exerting more leverage over Tehran: continuing the current regime of exceptionally tight sanctions, or military strikes. The former doesn't work: The current sanctions regime was unsustainable -- the only way we got countries like Russia and China (and arguably even the EU) onboard with tighter sanctions was in service of getting a deal. If no deal was in sight, most of our international allies would have walked away from the sanctions and we'd be left with nothing. The military option is risky for a host of reasons; it might not work, it definitely will prompt retaliation, it definitely would be a diplomatic catastrophe for the United States in forums far afield from Iran, and it definitely will result in blowback that we really don't need. Robert Farley has long convinced me that the ability of pure airpower to bend other countries to our will is overstated, and the more resources we invest in ensuring that the military operation is successful, the more we risk being mired in yet another intractable Middle Eastern conflict.

(4) Indeed, one thing that Lewis said in his piece -- which, again, is the most informative of all the ones I read -- really stuck out for me. It's that "[e]very six months, the deal we could have gotten six months before looks better. Every time we tried to hold out for a better deal, and every time we got in the position of a worse deal." That dates back to the Bush administration, so this isn't a case of weak Obama being weak and not leading with leadership. The fact is the trendlines haven't been good for awhile now, and experientially speaking trying to get a "better deal" has only made things worse. To quote Lewis again:

I was talking to a colleague who is unhappy [with the deal], and it's kind of fascinating. He's unhappy because, he said, "We spent eight years, and the deal we got is not better than the deal we could have gotten eight years ago." And it's like, oh, no kidding. That's not an indictment of the deal, my friend, it's an indictment of eight years of fucking around. [...]

I would give [this deal] an A....[Now, c]ompared to the deal we could have gotten 10 years ago, if the Bush administration hadn't had their heads up their butts? Not an A! That would have been a great deal!

I remember when they had 164 centrifuges, in one cascade, and I said, "You know what, we should let them keep it in warm standby. No uranium, just gas." And people were like, "You're givin' away the store!"

In short, I think opponents of this deal bear a heavy burden of persuasion as to why this time things will be different. And for me at least, they haven't met that burden. I agree with Jeffrey Goldberg that "The dirty little secret of this whole story is that it is very difficult to stop a large nation that possesses both natural resources and human talent, and a deep desire for power, from getting the bomb."

(5) On the particular metric of "slowing down Iran obtaining a nuclear weapon" -- which again, is clearly the only thing the deal is concerned about -- it seems likely to be a net positive over other feasible alternatives. Lewis certainly seems to think so (including ranking it higher than the alternative of bombing Iran). A lot of the technical details of course mean nothing to me, both on the science side (what are the risks of the technology Iran is allowed to keep) and on the logistical side (is 24 days lead time for inspections a lot or a little?). That said, I don't think the deal's efficacy depends on Iran suddenly not being a power-hungry illiberal reactionary autocracy. The "snapback" provisions seem pretty robust and offer ample opportunities for western states to punish Iran for cheating (or suspected cheating). And notably, these provisions can kick in without assent by China or Russia, who are the players whose commitment is most dodgy.

(6) All of that said, I still have a serious concern, although it's an idiosyncratic one that maybe is only shared by me. One way of thinking about this deal is that it trades reduced Iranian nuclear capabilities (via inspections, etc.) for increased Iranian ability to sponsor terror (because of the cash infusion it will get when the sanctions are lifted). And my quite unique position is that I always thought that Iran getting a nuclear weapon was always exaggerated on the threat scale. Nuclear weapons are and have been easily deterrable via conventional modes of statecraft. Even countries which hate each other (like the US and the USSR) pulled it off for decades. And even if one thinks Iran is so entirely suffused with millennarian impulses with respect to Israel that it would risk itself being wiped off the map via an Israeli nuclear counterstrike, it's difficult to imagine that it would risk harming its own holy sites in Jerusalem. By contrast, Iran's sponsorship of terror organizations like Hezbollah has been a thicket that normal diplomatic statecraft has not been able to satisfactorily resolve. Hence, a trade that reduces the former risk while amplifying the latter strikes me as exactly backwards. This may explain why all major elements of the Israeli polity -- including the liberal opposition -- don't like the deal. It strengthens Iran on pretty much all axes save nuclear weaponry (of course it does -- that's what makes it a deal. Iran gives something -- ability to quickly get a nuclear weapon -- to get something -- increased resource access. Outside fantasies where America Green Lanterns Iran into a total capitulation, that was always going to be the result), and Israel quite reasonably doesn't want to see Iran strengthened. And of course, Israel will bear the brunt of an Iran more capable to fund its proxies in Syria, Lebanon, and around the Middle East.

(7) So if I was to argue against the deal, that would be my point of attack: it weakens Iran along a threat dimension whose danger was overstated at the expense of strengthening Iran along a threat dimension whose danger is understated. Yet ultimately, that argument seems more of a general criticism of misplaced global priorities than it is a specific criticism of this deal. Assuming I'm right that the sanctions would have been unsustainable absent a deal, the choice was never "weakened terror Iran/strengthened nuclear Ian versus strengthened terror Iran/weakened nuclear Iran". The alternative to weakening Iran's nuclear capacities while relieving it of international sanctions was to strengthen Iran's nuclear capacities while relieving it of international sanctions. The lifting of sanctions was baked into the cake -- they knew it, and we knew it, and the only question was whether we could use the leverage we temporarily possessed to get a deal that accomplished the one, solitary goal it set out to accomplish. Based on my read, and what I've seen, I think that it did. The result is, to be sure, an Iran that will in many ways be more powerful and more dangerous in 2020 than it is in 2015. That's a security risk that will need to be dealt with in its own way. But it wasn't an eventuality that this deal, in these circumstances, was capable of forestalling.

Eastward Bound

Almost ten years ago (wow!) I remarked on a comment by a Hamas leader who attributed some sinister motives to the blue stripes on the Israeli flag. He claimed that they represented Israel's desired borders, lying not from the Jordan River to the Mediterranean (as at least might have some superficial plausibility), but from the Nile River to the Euphrates. It was a delightful bit of conspiracy-mongering of which I had never heard of before. And never had again -- until now:

Dan Cohen also shared his experience with Jewish privilege in Israel as a visiting American Jew. He said, “When I go there, typically Israelis will ask me how long I’ve been there. And they’ll encourage me to join in the project.” “Project” is a term used by Zionist Jews that refers to the creation of a Greater Israel which would lie between the Tigris and Nile rivers and expand from where Israel lies today to Jordan, Lebanon, Syria and Egypt.

Oh it's the Tigris now? Does our thirst for land never cease?

The source of this lovely atrocity is "MintPress News", which seems to be appropriately fringe (though not so fringe so as to fail to snag a bunch of quotes from -- who else -- Jewish Voice for Peace). In mild defense of both JVP and Cohen (who appears to have no affiliation with JVP), it seems like that particular bit of truth-y insight might have come directly from the article's author. But don't worry, there's plenty of the usual JVP nonsense -- my favorite in this round being "[Zionism] is just a political movement built on stolen land and depriving others of human rights. I can’t let this be done in my name. I have a right to be here and not agree with Israel." This, naturally, comes from a non-Native American living in Minnesota. As I wrote the last time this particular bit of historical blinders emerged:

[I]n all seriousness: is there any metric -- any metric at all -- under which a Jew living in Colorado [or Minnesota --DS] is not further implicated in colonialism than a Jew living in Tel Aviv? Because I can tell you that Jews ... do not have a multi-millennium connection to Fort Collins.

One almost gets the sense that to be a Jew is simply to be born as a trespasser, and that no matter where one goes your existence will be seen as a form of oppression.

How Much Anti-Semitic Nonsense Can Be Packed Into One Speech?

The PLO's ambassador to Chile endeavors to find out:

Addressing members of the “Gran Logia” Masonic Lodge, Jada’a said that Palestinians “don’t recognize the existence of the Jewish people” as there is not, in fact, any such people.

“This is not my personal analysis. Here we can refer to the Jewish Israeli professor from the University of Tel Aviv, Dr. Shlomo Sand, in his book ‘The Invention of the Jewish People.’ A Jew with Israeli passport announces that, the so-called Jewish nation is a made up invention. Because a religion cannot be a people,” he said.

Sand believes that contemporary Jews are descended from the Khazar people from the Caucasus and are not connected to the Biblical Israelites. His ideas are widely opposed both in academia and among Jews.

“Until 1896 when a group of academic intellectuals, financial advisers, majority being non-Jewish Europeans, decided to create the Zionist movement with one pretext/excuse; the creation of a homeland for the Jewish people. Although the truth is that this (the goal) is to protect their plans of dominating life in the entire planet,” he added.

Jada’a also recommended that his listeners read the The Protocols of the Elders of Zion, a Czarist forgery published in the early 20th century purporting to expose the inner workings of a global Jewish conspiracy.

Bonus for citing to the "Jewish Israeli" Shlomo Sand, given that Sand has declared his desire to "cease considering myself a Jew.

UPDATE: PA President Mahmoud Abbas has summoned the ambassador back to Ramallah.

Aly Raisman's Muscles

Olympic gymnast Aly Raisman is posing for ESPN's famous "body issue". A few years ago Jill posted her spin on that forum (stemming from mutual conversations between the two of us), and I think it holds water. I'm a fan of the Body Issue -- it's a useful corrective to SI's "Swimsuit Edition", and I think it treats its subjects with respect and does the concept of the body right. Bodies in the body issue are respected because they can do amazing things -- in Raisman's case, an astounding array of flips, jumps, and twirls that make me dizzy just thinking about it.

I was struck by this statement by Raisman, though, which is a stark commentary on how (female) bodies are viewed normally:

Reisman is five feet and two inches worth of muscle — bulkier than many other gymnasts, she says, but that didn’t stop her from proudly posing before a team of photographers. “I think imperfection is beauty,” says Raisman. “Instead of being insecure about my muscles, I’ve learned to love them. I don’t even think of it as a flaw anymore because it’s made me into the athlete that I am.”

Put aside the idea that Raisman could ever be seen as "bulky". I accept that "bulky" is a relative term and one is naturally going to assess oneself in relation to one's peers. But it is shocking that Raisman could ever have seen her muscles as a "flaw". I say "shocking" not as an indictment of Raisman's rationality, but as a commentary on the sorts of social norms that create such a mentality. It seems obvious that Raisman's muscles should be viewed as amazing, for precisely the reasons she says: they are what makes her into an elite, Olympic-caliber athlete. It takes a heaping truckload of malformed messages about what a woman's body "should" be to take that intuitive awesomeness and turn it into a "flaw" that one must "learn[] to love."

And while people talk about how male athletes are sexualized too -- well, no, not like that they're not. Male athletes can and do absolutely feel insecure about their bodies; but it almost always takes a functional form: Am I as strong as I could be? Am I as fast as I should be? I've yet to hear of male athlete ever consider his muscles, or any other aspect of his physique which enables him to do the amazing athletic feats of his chosen profession, to be a flaw.

Any way, it goes without saying that Aly Raisman is an insanely strong and powerful woman. One doesn't need the Body Issue to know that, of course, but to the extent it provides with a venue to love her loveable muscles, all power to it.

Happy 4th of July!

Our closest friend in Berkeley is coming to our apartment for the traditional meal of hot dogs (probably other things too, but I care only about the hot dogs). So no real blogging today. I will say that having independence -- autonomy, sovereignty, the freedom to choose one's path as a people -- is a great gift. The United States is hardly unique in purchasing that gift at the expense of considerable pain and death, but nonetheless that does remain an indelible fact of our history. On the other hand, that is not and should not be the only fact of history either. It's up to each generation to justify the charge, by making this nation into something great.

Quote of the Day: What's in a Name?

From Aldous Huxley's Eyeless in Gaza (1936):

"What's in a name?" Anthony went on. "The answer is, practically everything, if the name's a good one. Freedom's a marvelous name. That's why you're so anxious to make use of it. You think that, if you call imprisonment true freedom, people will be attracted to the prison. And the worst of it is you're quite right."

Quoted in Charles Leslie Stevenson, Persuasive Definitions, 47 Mind 331, 335 (1938).

Hijacking History

Shorter Sean Hannity:

There once was a time when the Confederate Flag stood for something honorable, like treason in defense of slavery. But now it's been hijacked by racist white supremacists! In conclusion, Black people are the real racists, because of rap.

The Trump Card

As many of you know, there are a lot of people running for President on the Republican side. So many, that the first GOP presidential debate will not be able to feature them all. Only the top 10 candidates -- as measured by a composite of several national polls -- will make it in. So who's looking like they'll make that elite list? According to a recent CNN poll, the top 10 are (in order):

1. Jeb Bush
2. Donald Trump
3. Mike Huckabee
4(t). Ben Carson
4(t). Rand Paul
6(6). Marco Rubio
6(t). Scott Walker
8. Rick Perry
9(t). Chris Christie
9(t). Ted Cruz
9(t). Rick Santorum

On the outside looking in (but still within striking distance of the bottom tier) are Carly Fiorina, Bobby Jindal, and John Kasich.

Personally, I just adore learning that Donald Trump has 4x the support of Ted Cruz. Live by the crazy sword, die by the crazy sword. And how humiliating must it be for Bobby Jindal that he can't make even make it onto the big stage but Ben Carson can?

Oh, it's going to be a fun primary, I can tell.

Obergefell Solidifies the Nascent Alliance Between Obama and the Boko Haram! I am not a Crank!

I stated a few days ago my belief that Obergefell will be a Lawrence and not a Roe. By that I mean that I believe Obergefell effectively signals the end of gay marriage being a significant site of social controversy in the United States -- we will see a few months of sputtered opposition (ranging in tone from "impotent fury" to "half-hearted identity performance"), and then it will just be accepted.

But we still have time to enjoy the death rattles. Check, for example, the Federalist's 15-point argument against gay marriage. There are a lot of lovely entries: Gay marriage leads to human trafficking, gay marriage leads to licensing parents, gay marriage "promises a monolithic society of conformity" (what?), but by far my favorite has to be lucky #13:

The United States is already punishing countries and threatening to cut off aid if they don’t accept the LGBT agenda. This is especially true of developing countries, in which the whole idea is foreign to over 95 percent of the population. According to a report by Rep. Steve Stockman, corroborated by a Pentagon official, the administration held back critical intelligence from Nigeria which would have aided in locating girls kidnapped by Boko Haram. The new National Security Strategy recently released by the White House makes clear that the LGBT agenda is a global agenda. And it looks a lot like cultural imperialism of the worst kind.

I hope we've all learned a valuable lesson about listening to Steve Stockman. Anyway, it's off to wave a Boko Haram ISIS dildo-covered flag at a pride parade!

Executions and Their Alternatives

This past March, I commented on the Eighth Circuit's en banc decision in Zink v. Lombardi, which rejected a challenge to Missouri's execution protocol. My particular focus was on a strange statement offered by the dissent which said that, if the death penalty is constitutional in the abstract, it follows that there must be some form of execution which is constitutional as well. This, to me, clearly did not hold -- it is perfectly plausible to say that while the Constitution has no objection to capital punishment as such, it still must be the case that any particular form of execution must satisfy the demands of the Eighth Amendment -- and perhaps none will do so.

Of course, leave it to the Supreme Court to take an obvious truth and turn it on its head. Today, in Glossip v. Gross, the Court rejected a constitutional challenge to Oklahoma's lethal injection procedure. In doing so, it made one fateful and indefensible holding: the Court decided that a prisoner cannot solely show that the method of execution is excruciatingly painful, barbarous, even tantamount to torture. He must show it is all of those things compared to a "known and available alternative method of execution." In other words, just like the Eighth Circuit, the Supreme Court declares that there must be a legal form of execution (not just in theory, but "known and available" to the executing state). And as a consequence, the baseline for "cruel and unusual punishment" rests against the characteristics of the next-best alternative. If, as it turns out, all the methods seem to be brutal and inhumane in their application -- well, the Supreme Court just legalized torture.

There is irony here. For all of Justice Scalia's bleating in King v. Burwell about how the Supreme Court "is prepared to do whatever it takes to uphold and assist its favorites," that complaint would be far more appropriate if leveled here. The whole reason this "known and available alternatives" argument was an issue was because social movement actors have made it exceptionally difficult for states to access most varieties of execution drugs. If social circumstances dictate that otherwise lawful executions can't be carried out in a fashion concordant with constitutional demands, that would seem to be that (I explored a far more ambitious version of this hypothetical in my "perfect poison" story). But of course, that didn't satisfy the author of the Glossip opinion -- who complained at oral argument that this would represent a capitulation to the death penalty opponents' "guerrilla war" against capital punishment. So the doctrine stands in all of its cruel and unadorned glory: executions must be allowed. If that means subjecting human beings to "the chemical equivalent of being burned at the stake,"* so be it.

Seventy Years Later

Six million Jews were murdered in the Holocaust. It's easy to imagine just how horrific that was at the time. People also can understand how it might have had effects in the immediate aftermath. But it is hard to process just how extensive the impact really was. So maybe this headline gives a clue: Global Jewish Population Nears Pre-Holocaust Level.

Seventy years later, we're almost back to where we were before Hitler's rise. Almost. Not there yet. That's how destructive the Holocaust was to the Jewish people.

History Will Be Heard

It's an interesting fact about history that nobody cares about process. If, say, the Constitution supplanted the Articles of Confederation while completely ignoring the latter's provision that it could only be amended via unanimous consent, that fact is lost on pretty much everyone. Likewise the "ratification" of the Reconstruction Amendments by southern states -- done at gunpoint following the civil war -- or for that matter the technical question about whether states had a right to secede from the union in the first place. There were many reputable legalistic critics of Brown v. Board when it came down in 1954, but today the importance of abolishing legal segregation completely overshadows any question over whether the decision was "technically" correct. This isn't to say that results are all that matters -- it is a good thing that we pay attention to process. We do care about it, and we're right to care about it. But it is a concern that fades very quickly once the decision has been made. For all the energy it takes up at the time, attention to process is not something that makes it into our historical memories.

It's interesting to think about this in terms of today's 5-4 decision striking down gay marriage bans. The dissenters -- Chief Justice Roberts and Justices Scalia, Thomas, and Alito -- all have perfectly cohesive legalistic arguments on their side (though I'm ultimately not persuaded by any of them). But I am curious how they think history will view them. After the Court struck down parts of the Defense of Marriage Act, the Onion declared "Scalia, Thomas, Roberts, Alito Suddenly Realize They Will Be Villains In Oscar-Winning Movie One Day." That's almost certainly true. Obergefell, I predict, will be a Lawrence and not a Roe. Public opposition to same-sex marriage will rapidly disappear, and in another generation this decision will be seen as an obvious forward step for the cause of justice; the dissenters clearly retrograde and in the wrong. And I think each of the dissenters know that, and thus know that history will not treat them kindly. They are staring history down.

I say this neither as a form of condemnation nor laudation. It's just an interesting question. Is that a conscious choice? Are they okay with the sacrifice? What is it that motivates them to make it, knowing that there is no vindication waiting for them at the end? It is one thing, after all, to stand against society secure in the knowledge that "history will be heard." It is another to do so while knowing that history, too, will pile on yet further; consigning even the exculpatory reasons for your dissent to obscurity and irrelevancy.

The GOP's Helpy Selfie

My old debate friend turned Republican pollster rising star Kristen Soltis Anderson has a new book out: The Selfie Vote: Where Millennials Are Leading America (and How Republicans Can Keep Up). Soltis' speciality as a pollster is trying to connect the GOP with younger voters (Soltis is only a few years older than me), and this looks to be her book-length manifesto on the subject. I haven't read it, but according to her Facebook I can get a decent idea of her proposals from this review. And if that's anything to judge by (and of course, the standard disclaimer here is that some or all of these objections may be addressed in the book itself), the GOP may have problems in the coming years.

It would be unfair to Kristen to say that her proposals for attracting millennial votes is for the GOP to become more liberal. Most of the issues she identifies have unclear or mixed ideological valences (gay marriage is the notable and conceded exception). The problem, though, is that in many of the cases Anderson identifies it is far from certain that Republicans will be more likely to jump aboard her policy prescriptions than Democrats. Many of them, as the reviewer notes, "feel like sensible ideas that many politicians, not just Republicans, can get behind." That's a problem, since presumably to win over currently left-leaning voters they need to differentiate themselves from Democrats. For example, Soltis cites pervasive overregulation as an area where Republicans can win the allegiance of urban voters. A good example might be the recent Texas bill which removes licensing requirements for traditional African hairbraiders. That law was shepherded through the legislature by a Republican and signed by a Republican Governor. But it also passed the Texas House unanimously -- it doesn't differentiate Republicans and Democrats. Matt Yglesias, for example, has long made the progressive case for reducing licensing requirements as an anti-poverty measure. There's a perfectly cohesive conservative rationale for adopting Soltis' proposal here, but then, that's a perfectly cohesive liberal one too.

The other problem I see relates to the cultural bonds that, under my understanding of political psychology, do far more to channel our policy opinions than does any sort of comprehensive abstract political theory. Far more than any unified worldview, being liberal or conservative is often about liking certain types of people (and favoring laws which aid them) and disliking other types of people (and trying to contain or suppress them). For example, conservatives like farmers ("backbone of America"), rural and white suburban/exurban residents ("real Americans"), gun owners ("patriots"), and business owners ("captains of industry"). They dislike racial minorities ("the real racists"), immigrants ("taking our jobs!"), urban dwellers ("latte-sipping elitists"), and the poor ("takers"). Liberals run close to the reverse: they like racial minorities ("heirs to MLK"), immigrants ("pursuing the American dream"), urban dwellers ("urbane, sophisticated"), and the poor ("hard-working Americans"). They dislike rural folk ("hicks"), gun owners ("NRA nuts"), and big business owners ("robber barons"). If we take a topic like "deregulation", it isn't really the case that Republicans favor it and Democrats oppose it. Republicans are happy to regulate the hell out of food stamps, for example. Democrats favor other sorts of regulations (those which fall primarily on the heads of big businesses or gun owners). Ditto government intervention in the economy - conservatives are perfectly happy to do so to give preference to income earned through capital gains versus that earned through labor, or to subsidize corporations that they have favorable feelings towards.

The problem for Kristen's analysis is that these cultural affinities (or disaffinities) seem to run in the wrong direction for many of her proposals. I think Republicans can absolutely get behind Uber, but what are their feelings towards increased mass transit? There's a visceral aversion there, that really isn't accounted for based on policy. Likewise for going "soft on crime", particularly when tho community in question consists of poorer African-Americans. It's not that they can't adopt these positions, it just will require a lot more cognitive effort than I think it would take for liberals (who are more predisposed to favor these policies).

Basically, if I were a liberal strategist seeking to counter Kristen's book, my advice would be simple: don't be an idiot. You can try to regulate Uber's employment practices (urban folk like Subway and Target too, but we like them to pay their workers respectable wages), but don't ban it outright. Be attentive to the changing tides on crime and be willing to decriminalize low-level drug offenses and reduce overpolicing and "war on the poor" policies. Invest in walkable urban areas and mass transit options. These are all doable objectives; there is no reason why Democrats should ever find themselves out-flanked by Republicans on these issues.

Now to be sure, I hope that Republicans take Kristen's advice -- not because it is bad advice, but because most of her ideas sound like good ideas that will make America better, and I'd rather more people support them rather than fewer. But as a strategy for winning over millennials, I'm not convinced -- not because they're bad ideas, but because they're ideas that won't make the GOP a distinctively better choice than the Democratic party.

Van Hollen and Edwards Go To Baltimore

With the retirement of longtime legend Barbara Mikulski (D), Maryland is facing a true rarity: a competitive Senate race. Well, competitive on the Democratic primary side, and right now it pits Montgomery County-based Rep. Chris Van Hollen against her Prince George's County counterpart Rep. Donna Edwards. Since both represent the DC suburbs, both are looking to reach out into the other big MD Democratic hotspot -- Baltimore (incidentally, the elephant in the room for this race continues to be whether Baltimore-area Rep. Elijah Cummings will jump in. But so far it looks like the answer will be no). But reports seem to be that Van Hollen is making more inroads.

This doesn't really surprise me. Chris Van Hollen is an extraordinary campaigner -- he came to office with an upset win over a Kennedy in a Democratic primary, followed by knocking off a popular 8-term Republican incumbent in a GOP wave year (2002). Edwards, for her part, rose to prominence by primarying out ex-Rep. Albert Wynn -- which, while not nothing, is less impressive given that Wynn was basically an uninspired party boss type and way out of line with the views of his very liberal district. Since then, Edwards has maintained a relatively prickly relationship with a lot of her constituents and various powers-that-be. Van Hollen, by contrast, is well-liked amongst his colleagues and has experience and connections from his successful tenure as head of the DCCC.

Edwards' main strategy has been to present herself as the progressive hero in the race. But while her lefty-bona fides are strong, Van Hollen is certainly no blue dog either, and I think it will be tough to substantially outflank him from the left. Given that, and given Van Hollen's superior skills as a politician and fundraiser, I think that he'll be the decided favorite to win the primary.

Also, while we're on the subject of Maryland, best wishes to Gov. Larry Hogan (R), who was recently diagnosed with an advanced and aggressive form of cancer. Here's hoping for a speedy recovery.

Onward to France!

A Spanish town whose name translates to "Camp Kill Jews" has elected to make a change.

Instead, the town’s new name, Castrillo Mota de Judios, translates to “Jews’ Hill Camp,” which was actually the town’s old name before it was changed in 1627 to “Camp Kill Jews.”

I have to say I appreciate the history behind this. Also "Jews' Hill Camp" sounds like a location I'd find in Skyrim.

With momentum now on our side, perhaps we can persuade the French hamlet of "Death to Jews" to change its name as well.

The JVP's Untenable Position

I must say, I find this twitter conversation between a (probably*) non-Jewish anti-Zionist and a Jewish Voice for Peace supporter darkly amusing. Basically, the non-Jew is unhappy with the JVP's decision to disassociate from Alison Weir (incidentally, JVP has finally released a public statement to this effect). His Jewish JVP-affiliated interlocutor protests that "JVP is making huge progress in changing the conversation and making it OK to criticize Zionism." The non-Jew, though, sees the Weir disavowal as part of a larger pattern of "gatekeeping, pulling the rug from under people, turning priorities to suit Jewish interests..." To this, the Jewish participant lamely replies that he "understand[s]" why JVP now refuses to work with Weir and that "I've met many Jews in JVP. None of them have some ulterior motive" (as opposed to other Jews?).

What makes this conversation amusing is that it shows the fundamentally untenable position the JVP finds itself in whenever it disagrees with its non-Jewish ideological cohorts. Like most minority organizations vis-a-vis surrounding majority actors, the JVP as a Jewish group is generally accepted by its non-Jewish "allies" only as far as it remains in agreement with them, and no further. This, in itself, does not distinguish them from any other Jewish organization, whose non-Jewish friends also turn with a vengeance whenever the Jewish parties suggest that their behavior may be inappropriate.

Now, the typical move for any minority organization in this position is to argue for a degree of deference or at least tolerance for the decisions of the minority group as part of a commitment to pluralism and respect for group autonomy. Anybody, after all, can like a group when it agrees with you -- the true test is what happens when the group wants to go a different route or offers a dissident voice. And these concerns are only amplified when the subject is oppressive conduct specifically directed at the group in question. Ideally, a true ally would seriously and charitably consider the possibility that their position is inconsistent with their proffered egalitarian commitments, including making a due accounting for the possibility of implicit and structural biases which may initially make such a conclusion seem preposterous or outrageous. After all -- to return yet again to the Christine Littleton well -- equal treatment of minorities starts "with the very radical act of taking [us] seriously, believing that what we say about ourselves and our experience is important and valid, even when (or perhaps especially when) it has little or no relationship to what has been or is being said about us."

But the JVP can't make that argument. It can't make it because, of course, demanding as a general principle that people take seriously Jewish political appraisals and accord them due consideration as part of our commitment to pluralism and autonomy means demanding as a general principle that people treat Zionism that way, because most Jews are Zionist. The last thing the JVP wants -- or is in any position to credibly assert given that they routinely argue that mainstream Jewish institutions are untrustworthy, opportunistic, paranoid or delusional -- is to promote the sentiment that we should believe "what [Jews] say about ourselves and our experience is important and valid, even when (or perhaps especially when) it has little or no relationship to what has been or is being said about us."

That avenue being closed off, the JVP must instead make a plea for special treatment. They're the good Jews -- those rare and special few who should be exempted from the (wholly reasonable and salutary) general rule that Jews are generally irrational, delusional, and/or sociopathic. In effect, this is an appeal to "respectability politics". The JVP cites its long history as not just Israel-critics but also (to quote their statement) a group which "know[s] full well that the Israel lobby uses false and misleading accusations of anti-Semitism to silence critics of Israeli policies" and which has "called out that tactic time and time again and stood in defense of those who have been wrongly maligned with this accusation", and demands that it be rewarded for its good behavior.

In their defense, it's understandable why the JVP might expect to receive such special dispensation. The folks they are appealing to often do trot them out as being the rare Jews you can trust; indeed, their status as Jews-who-criticize-other-Jews gives them superstanding and enhanced credibility. But superstanding is a fickle thing -- it lasts only as long as the critic remains critical. Superstanding only applies as against the JVP's fellow Jews; it does not come with any general grant of authority or deference. It is unsurprising that once the JVP tried to draw upon the "credibility" they earned as ideological fellow-travelers to take a position not favored by their non-Jewish allies, they'd find that the well of goodwill suddenly went dry. Superstanding isn't a signal of egalitarian attitudes, its simply the nod of approval when Jews behave in accordance to non-Jewish wishes. When push comes to shove -- that is, when we return to the key case of differentiation and dissent -- there remains no room for Jews to step out of line. Which is why I argued that respectability politics is a doomed strategy.

Because they fail to actually acknowledge anti-Semitism as a serious and systematic problem -- indeed, because they encourage it insofar as they promote the general sentiment that Jews normally can't be trusted -- the JVP falls into a trap of its own devise. It cannot actually advocate against epistemic anti-Semitism because that would require giving credence to the bulk of the Jewish community which adopts positions they wish to see delegitimized. But having helped normalize Jewish status as epistemically unreliable, they find their pleas for a special exception (in recognition of their respectable selves) will fall on deaf ears. It turns out that, in actuality, "good behavior" doesn't in any way diminish the perceived entitlement non-Jews have to dictate Jewish behavior.

That's all I have to say about the JVP. The only thing I want to address before closing is the conclusion some right-wingers draw from this analysis: that because efforts to end the occupation and craft a solution that respects the democratic and self-determination rights of Jews and Palestinians alike won't end anti-Semitism, we shouldn't do it. If the JVP's "respectability politics" position is delusional, then this retort is just pathetic. It snivels that Jews shouldn't make decisions of our own accord, but solely based on what reaction it draws from others. This is nonsense, and peculiarly at odds with the entire point of Zionism as a project of Jewish self-determination -- the historically near-unprecedented ability of Jews to make decisions about ourselves for our own reasons, rather than with an eye towards averting the next massacre.

I don't support Palestinian equality and national aspirations because I think being nice to Palestinians will make people like Jews more. I do it because, well, the whole point of being an autonomous agent is that we get to make the choices, and I want to choose to do the right thing. People who say that we can't create a Palestinian state because of this or that thing Palestinians do or refuse to do drive me nuts: what's the point of Zionism if Jews are going to sit on their hands and complain while waiting for someone else give us permission to make a decision? .... As the black nationalist saying goes: "do for self."

The JVP's position is untenable because it can neither unequivocally oppose anti-Semitism (by demanding that Jewish voices -- all Jewish voices -- be given credence when speaking on Jewish experience) nor can it exempt itself from the system of anti-Semitism (discrediting Jewish perspectives where they differ from those of non-Jews) it tacitly endorses. But for the rest of us, the fact that "criticizing Israel" won't end anti-Semitism is not a relevant objection. We should pursue a just solution for Jews and Palestinians not because of what we expect to gain from it out of others. We should do it for self.

* "Probably" because at one point he asks "What makes you assume I have no Jewish heritage?" But elsewhere he refers to Jews as an external group (literally invoking "I have Jewish friends") and he never actually says he is Jewish. So the whole bit just screams "troll".

Terrorist Strike at Charleston Church

As you all are no doubt aware, yesterday a young white supremacist entered an African-American Church in Charleston, South Carolina and opened fire, killing nine people. The massacre has been labeled a "hate crime". I have little to add to that except that I do not see the distinction between hate crimes and terrorism, and so I prefer to use the latter appellation. When people engage in acts of violence as a political expression of hatred towards the targeted group -- regardless of whether that group is "Americans" or "Jews" or "Muslims" or "Blacks" -- we call them terrorists. And we should.