Saturday, December 16, 2023

See No IDF Evil

I'm in the throes of grading and I'm traveling for most of the period from now through New Year's. But I did want to quickly (for me; it's all relative) speak a bit about the way the American Jewish community is adopting a "see no evil" approach to IDF activities in the Gaza Strip (and beyond).

There are plenty of reports of IDF soldiers targeting non-belligerents. The Latin Patriarchate of Jerusalem just accused IDF snipers of killing two women sheltering in a convent "in cold blood". Reuters claims IDF tank fire deliberately targeted its journalists in circumstances where there were no nearby belligerents. MSF likewise claims Israeli forces deliberately targeted its medical personnel (I remember this one because MSF initially did not accuse any particular party of responsibility, which gives credence to the notion that it was not reflexively lobbing out an allegation but rather actually engaged in some measure of investigation). One could go on.

One thing that often isn't part of these conversations is the catastrophically high levels of overt racism that exist towards Arabs in the young (which is to say, military-age) Israeli population. If roughly a third of population from which Israel is drawing its soldiers endorses things like "stripping Arab Israelis of their citizenship" and otherwise endorsing hate against Arabs, it would be stunning if we didn't see significant instances of at the very least indifference towards protecting Arab civilian life, if not outright infliction of war crimes. That'd be true in all circumstances, but particularly in the context of this conflict and the brutal Hamas massacre that precipitated it. Meanwhile, David Ignatius reports what many have seen, which is that soldiers drawn from the more radical parts of the settlement project basically view their IDF service and their status a price tag raiders as more-or-less interchangeable. Given all that, the denialism that IDF forces likely are in a non-trivial number of cases either deliberately attacking protected persons, or at the very least not paying due heed to Palestinian life is absolutely incredible.

One place one "pro-Israel" American Jews could retreat to would be to concede abuses may be occurring, but say that they (a) are not policy and (b) should be investigated and punished as appropriate. The first part is likely true (or true-ish; whether the rules of engagement are properly respecting the legal boundaries about proportionality and distinction is an open question). The second part causes problems. Even before the current conflict, it was increasingly apparent that potential war crimes that occur in the midst of combat operations will never be significantly investigated or punished by the Israeli government. Just convicting and then commuting the sentence of Elor Azaria almost ripped the country apart; the current government is full of zealots one whose general approach to vigilante Jewish violence targeting Arabs is to propose giving the perpetrators medals. Nobody actually expects significant or serious Israeli investigations into alleged war crimes committed by its soldiers.

But accepting that IDF soldiers likely are, in non-trivial numbers of cases, engaging in criminal conduct towards Palestinians during combat operations would put into stark relief the paucity of actual investigation and punishment, at which point it'd be virtually impossible to defend the Israeli government's conduct. Far easier to take advantage of the fog of war to cover one's eyes to the primary instances of abuse. That such denialism relies on almost impossibly optimistic presuppositions about the IDF's professionalism and its putative status -- more of a slogan than an empirically-testable proposition -- as "the most moral army in the world" is besides the point.

Tuesday, December 12, 2023

The Day After Hamas

The New York Times reports increasing "daylight" (to use an old term) between President Biden and Netanyahu regarding what the aftermath of the Gaza campaign will look like -- specifically, regarding the role that the Palestinian Authority might have in governing Gaza once (knock on wood) Hamas is defeated. 

Paul Campos thinks this is reflective of the worries regarding "the administration’s up until now very muted response to the siege of Gaza, and the gathering human rights and public health catastrophe that it represents." I'm not sure that's quite right, though it's perhaps lurking in the background. The more prominent instinct, I think, is that Biden fundamentally agrees with Israel regarding the merits and necessity of destroying Hamas, but fundamentally disagrees with Bibi regarding "the day after". The more "the day after" becomes salient in our minds and we start thinking not in terms of the war's prosecution but its aftermath, the more we're going to see latent but always-present disagreements between Bibi and Biden come to a fore. One sees this dynamic particularly in how Biden relates his response to Bibi's claim that the allies "carpet bombed Germany" -- "I said, 'Yeah, that’s why all these institutions were set up after World War II, to see to it that it didn’t happen again.'" The former point is about prosecution of the war, the latter point is about how we handled the aftermath.

For Biden, destroying Hamas has to be followed by aggressive state-building efforts meant to provide a real future (economically, socially, and politically) for the Palestinian people. The allusion to the Marshall Plan after World War II is clearly part of this, and other relevant players are also insisting that any plans for rebuilding Gaza credibly commit to a realistic pathway for Palestinian statehood. For Bibi -- well, I really have no idea what Bibi's "day after" plan is. I don't think he actually wants to fully reoccupy Gaza; but he also doesn't want the PA involved; or international involvement; and certainly Hamas is out the question; so ... where are we left? He seems much more interested in what he'll say "no" to than what he can plausibly say "yes" to, because at this stage in the game reality has become Bibi's unconquerable enemy. And Biden, in turn, isn't going to have a lot of patience for Israel post-war simply refusing to let Gaza rebuild itself or have any sort of self-governance structure whatsoever just because Bibi can no longer square the circle of "no formal occupation" and "no Palestinian independence" by building a castle around Gaza and then never thinking about it again..

Even if one accepts that Israel is pot committed to destroying Hamas, that doesn't obviate but rather accentuates the need to have a serious answer to the "day after" question. Anyone remotely serious figure understands that the war in Gaza is the middle of the story, not the end, which makes it unsurprising that Bibi wants to treat it as an end and just close his eyes to what happens in the aftermath. Biden is a more serious person, and so he's actually contemplating these questions. 

Monday, December 11, 2023

Texas' Great Abortion Compromise

The GOP's "compromise" position on abortion has always been clear.

(a) It will include in its categorical abortion bans exceptions for threats to the life or health of the mother; and in exchange

(b) It will threaten to jail any woman or doctor who dares try to use those exceptions.


The Texas Supreme Court has vacated a lower court ruling that enjoined the state from prosecuting a doctor who was set to give a woman a medically-necessary abortion. Even when the injunction was in place, state Attorney General Ken Paxton threatened to prosecute any doctor or hospital which abided by its terms and provided the procedure. And that threat remains on the table for future persons in this position (the plaintiff in this case, Kate Cox, has subsequently fled the state of Texas to receive the emergency care she needed. One presumes that the instant she returns, the bounty hunters licensed by Texas' ghoulish "pro-life" inquisitors will be hounding her).

Cox had a nonviable pregnancy -- her fetus had been diagnosed with trisomy 18, a fatal chromosomal condition -- and she had already faced severe health complications that repeatedly sent her to the hospital. Her doctors accordingly concluded that continuing the pregnancy would threaten her health and future fertility. But the state of Texas swung into action to do everything it could to ensure that she could not get the medical care she needed, insisting that Kate Cox's continued mortal peril was a legal obligation, and woe befall anyone who dared try to rescue her from it.

The Texas Supreme Court's opinion is a sterling encapsulation of the "compromise" laid out above. Over and over again, it asserts (in what would be comic if it weren't so dire) that decisions regarding whether an abortion is medically necessary are to be made by doctors, not judges. Doctors, not judges; doctors, not judges; doctors, not judges. And the court purports to confirm that doctors need not attain a pre-procedure judicial injunction before they perform a medically-necessary abortion; nor must they wait until death is "imminent" before performing the procedure.

So why are we here? Well, because after repeating "doctors, not judges" for the umpteenth time, the Court says "buuuuuut the doctor needs more than a good faith assessment, his or her judgment has to be 'objectively reasonable.'" And who decides that? It will be judges, after the fact! And what are the markers of "objectively reasonable" in this context? The court throws up its hands -- your guess is as good as mine! Except it isn't, because if you guess wrong, Ken Paxton has a prison cell waiting for you!

The way the "compromise" works out is that Republicans earnestly promise in theory all the exceptions and carveouts that make an abortion ban regime even remotely compatible with respecting women as humans, then do absolutely everything they can to make all of those provisions completely inaccessible in practice. Here the Texas Supreme Court makes three such promises: the decision regarding "medically-necessary" is one for doctors, not judges; the decision does not require advanced authorization by a judge; and the decision does not have to wait until the patient is bleeding out on the operating table. Each of these is less than "reasonable", they are the absolutely bare sub-minimum Texas women should be entitled to. And all three of them are lies.

The reason why Kate Cox and her doctors went to court is because they had absolutely no way of knowing if their judgment about the medically-necessary character of this abortion would be respected by the state of Texas, and if they guessed wrong, they were facing serious criminal penalties. So they needed a judge to confirm they were in the statutory safe harbor. The Texas Supreme Court's response was to say "try it and see" -- knowing full well that the entire problem is that doctors will be too terrified to try with the Sword of Damocles hanging over their head. In those circumstances, of course doctors will be hesitant to move until the case for a health-exception is rock-solid, not from their own "judgment", but in terms of whatever firebrand yahoo anti-women extremist is gazing over their shoulders from the Attorney General's office. And that's going to mean wanting to wait until one has formal judicial approval; or wait until the patient is bleeding out on the table. The promises are lies, and they are meant to be lies. The reality is exactly as ghoulish and inhuman in its cavalier indifference to women's life and health as it has always been presented, and that's fully intentional.

There is one little bit of the Court's opinion I will defend. At the outset, the Court characterizes the Texas laws at issue, which effectively ban abortion in all cases and in this case effectively compelled a woman to carry a non-viable, life-threatening pregnancy to term in the face of excruciating agony and serious medical danger, as "reflect[ing] the policy choice that the Legislature has made." That they did. Texas has made a policy choice that women, in their capacity as vessels, have essentially no rights over their bodies even in the face of excruciating pain, unfathomable injury, or devastating risk. There should be no pretending that it was doing anything different; no illusion that outcomes like this are not exactly what Texas hoped would happen when it enacted its law. 

The point of Texas' law was to ensure that women would be placed in mortal peril and then left at the arbitrary mercy of the state to determine whether their lives would be preserved, and to that extent the Texas Supreme Court was doing nothing more here than faithfully enforcing the will of the Texas legislature. The United States Supreme Court has decreed that, after fifty years where women were acknowledged as human, the judiciary must respect that "policy choice". There remain many avenues through which that choice still can be resisted. But the very least, we can accurately name what that choice is: a choice to endanger women and to make it functionally illegal to give them desperately-needed medical care. What Kate Cox went through is what local and national Republicans hope and demand women around the country should be subjected to, over and over and over again.