Thursday, May 12, 2022

The PA Has All the Leverage When It Comes To Investigating Shireen Abu Aqleh's Death

Earlier this week, Shireen Abu Aqleh, a highly respected Palestinian journalist, was killed during an Israeli raid in the West Bank. Eyewitnesses contend that Israeli soldiers shot her, and the bulk of the evidence points in that direction, though Israel maintains it has not yet been conclusively established who fired the bullet. Israel has asked the PA to conduct a joint inquiry into Abu Aqleh's death, but the PA has thus far refused -- preferring to conduct its own investigation and communicate the results to the US and Qatar (Abu Aqleh worked for the Qatar-based al-Jazeera, and she was a U.S. citizen).

As I said, as of right now the evidence strongly points towards the conclusion that an Israeli soldier killed Abu Aqleh. That corresponds with eyewitness testimony (including testimony that, at the time of the shooting, there were no Palestinian militants operating in the area). The bullet fired is one that is used by both IDF and Palestinian forces, so that washes. And an early video which purported to show Palestinian gunmen as the perpetrators has basically been debunked (the video was taken in an area that was nowhere near where Ms. Abu Aqleh was shot and from where it would have been effectively impossible for her to have been hit by any fired round).

Given all this, the fallback position of Israel's online defenders has been to cry foul over the PA refusing to cooperate with Israel in jointly investigating the event. "Why don't they want the truth?" "What are they trying to hide?"

But the fact remains that the PA has very little incentive to cooperate with Israel here, and "truth" has little (though not nothing) to do with why.

There is basically one, and only one, thing a joint investigation with Israel might be able to offer to the PA that it cannot get on its own. It's not access to the "true story" -- most people believe, and most of the available evidence suggests, that Israel is responsible for killing Ms. Abu Aqleh, and the marginal benefit of "confirming" that belief (whatever that means) is likely to be minimal even if we thought that a joint investigation would make such confirmation more likely.

Rather, what Israel might be able to provide that the PA almost certainly cannot get on its own is information on the actual individual who fired the bullet. If the goal is to see a particular John Doe face potential criminal consequences for killing Ms. Abu Aqleh, then a joint investigation is probably necessary.

That's the incentive for cooperation: not just the "truth", in the abstract, but the specific possibility that the investigation will reveal the personal identity of the shooter, who then will face material and appropriate consequences. What are the risks?

It is true that, from a bloodless, political vantage, the status quo of the narrative on this story is already one aligned with the PA's interests. Most people believe, and most of the available evidence suggests, that Israel is responsible for killing Ms. Abu Aqleh. An investigation could confirm that belief, or refute it, or muddy it up ("we cannot know for certain ..."). From the PA's vantage point, the latter two outcomes are very bad. And that's assuming the Israelis investigate in good faith, a stipulation that even some Israeli government officials concede is not one that Israel is entitled to receive.

The risk, in short, is not just that "the evidence" won't back up the prevailing narrative, it's also either that a bad faith Israeli investigation claims exculpation, or (whether in good or bad faith) the investigation only acts to kick sufficient dust around the issue so as to blunt calls for accountability. The PA presumably deems these risks to be quite weighty; and that fear cannot be dismissed as unfounded. And unfortunately, sans the unlikely event of absolute incontrovertible evidence emerging (which seems unlikely), any outcome other than "all parties agree an Israeli soldier was the shooter" -- whether it's (1) Israel lying about whether one of its soldiers killed Ms. Abu Aqleh, (2) it being genuinely not knowable whether an Israeli soldier killed Ms. Abu Aquleh, and (3) an Israeli soldier actually not having killed Ms. Abu Aquleh -- are largely going to be observationally equivalent.

So the choice of whether the PA should cooperate with Israel can be summarized as a weighing of the following probabilities:

P(Israel identifies a specific soldier who shot Ms. Abu Aqleh and subjects that soldier to adequate criminal possibility)


P(Joint investigation genuinely reveals Israel wasn't responsible) or

P(Israel in bad faith uses investigation to disclaim responsibility) or

P(Investigation, whether in good or bad faith, cannot decisively establish who bears responsibility)

Simply put, it strikes me as very hard to argue that the first probability is high enough to outweigh the latter three. Again, the PA has no reason to believe Israel will investigate itself fairly. Nor does it have much cause to believe that, even if Israel did identify a discrete perpetrator, that it would subject him to meaningful criminal sanctions. The most prominent recent case of an Israeli soldier being convicted of homicide against a Palestinian actor was Elor Azaria, who served a mere nine months for manslaughter after shooting a disarmed and incapacitated Palestinian assailant -- even that short sentence occurring in the face of massive public pressure supporting Azaria (something like two-thirds of Jewish Israelis backed pardoning him outright). I suspect the PA weighs the likelihood of the first probability -- that the investigation will fairly seek out the perpetrator and that the IDF will identify him if it is an IDF soldier and that the Israeli justice system will adequately punish him for any criminal misconduct -- as essentially nil.

In an ideal world, a joint investigation would still be the best outcome: if all sides act in good faith, a joint investigation is most likely to get at "truth" and most likely to identify any perpetrators who ought to face criminal liability. In the world we have, we cannot assume good faith and so we cannot assume a joint investigation in any way makes the "truth" more likely to come out. In practice, the PA has no doubt written off the realistic possibility that it will get the name of any Israeli soldier who shot Ms. Abu Aqleh, much less that he will face significant criminal consequences. Given that, the PA has zero incentive to give Israel the opportunity to blur the extant public narrative of this case; while Israel has every interest in hoping something ("truthful" or otherwise) will alter the prevailing discourse. 

In this environment, the PA has all the leverage, and it's up to Israel to offer something that the PA wants to make a joint investigation worth the latter's while. The most obvious thing Israel might be able to offer is the prospect that, if a perpetrator is found, he will face meaningful justice. It is hard for me to imagine how Israel could make that commitment in a manner that the PA would find credible -- unless, of course, Israel is able on its own initiative to find and arrest the shooter. If it can't do that (whether because it doesn't actually want to, or because it isn't actually able, or because no such shooter exists), I don't know what it could do that would make the PA inclined to be cooperative.

Tuesday, May 10, 2022

"Ex Post Facto" Abortion Prosecutions

I don't want to give any grandstanding GOP District Attorney ideas here, but I have a question about potential legal jeopardy of women who had abortions while Roe was good law following its likely invalidation in Dobbs.

If you've seen the maps about the status of abortion rights post-Roe, you've likely seen figures suggesting about half the states in America would ban abortion in Dobbs' immediate aftermath. Some of these are just states which are poised to act when Roe falls. Others have so-called "trigger" laws, which would criminalize abortion starting from the moment Roe is overturned.

But in at least a few states, there were laws which pre-dated Roe banning abortion that have never been repealed. And that, to my somewhat untrained eye,  presents a big problem for women in those states who may have had an abortion during the Roe era.

When a law is "struck down" as unconstitutional, it is not, as is popularly held, stricken from the books. The law still exists, it is just practically unenforceable. One effect of Dobbs would be to resurrect these zombie laws. But the question is whether the prohibitions found in those laws could be used to prosecute women who had an abortion while Roe was still in effect.

The instinctive answer is no, because the constitution prohibits ex post facto criminal lawmaking. You cannot criminalize conduct retroactively. So a state could not newly criminalize abortion and make that law apply to conduct that occurred before the law was passed. That would characterize many of the "immediate" abortion ban states; including, I think, the "trigger" law states.

But in the case of our states that simply kept their pre-Roe abortion prohibitions on the books, things may be different. The argument there would be that abortion was always illegal in those states, including during the Roe period. Yes, those laws couldn't be enforced during Roe's pendency, but the criminal prohibition was still on the books at the time the woman had the abortion in question. It will not be Dobbs that criminalizes abortion in these states, Dobbs will just remove the barrier that had prevented the state from enforcing its always-operative anti-abortion statute. It's as if you committed a crime but the DA couldn't prosecute because his hands were literally tied behind his back. Once he is freed from restraints, you cannot then say "well, I acted relying on the knowledge that the DA was incapacitated".

Does the rule against ex post facto criminal laws prevent prosecutions in such a case? It is far from clear to me that the answer is yes. Women in states that had continuous abortion bans in place during the Roe era may be at real risk of prosecution (assuming they're within the relevant statute of limitations). Yet another way that overturning Roe will wreak havoc on the settled expectations of millions of American women.