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.