Iron Dome and the Leveraging of Civilian Death

While there is by now a relatively large contingent of Democrats opposing the sale of offensive weaponry to Israel, we're also seeing a growing push to try and forestall the sale of defensive weapons to Israel as well (most notably, the Iron Dome missile defense system). Iron Dome intercepts missiles and rockets being fired at Israel by groups like Hamas and Hezbollah, and in doing so has saved countless civilian lives. Unsurprisingly, the endeavor to strip Israeli civilians of these protections is far more controversial than the effort to bar the sale of additional offensive weapons to Israel -- it seems to demarcate a clear difference between wanting to preserve Palestinian life versus wanting to extinguish Israeli lives.

So what is the argument against providing Israel with Iron Dome? This article in +972 provides an illustrative example of the case, which runs basically as follows: the existence of Iron Dome enables Israel to engage in military aggression without having to internalize the costs. Israel feels free to engage in military attacks basically at will, secure in the knowledge that any attempted reprisals will be blocked. By contrast, if Israel was more vulnerable to military attacks -- if it had to reckon with the reality that "the other side" really can hurt them too -- it would be more judicious about electing to commence its own military operations. An Israel which was forced to more tangibly endure the costs of the wars it started might be forced to consider other approaches to solving its various diplomatic (or even security) dilemmas beyond just bombing the problem away. And the hope is that, where all parties face real risk of injury or destruction, all parties will be more reluctant to resort to militarism in the first place.

There is a logic to this argument. But it isn't as straightforward as it sounds, and there is both a strategic and a moral objection one could level against it.

Start with the strategic objection. The above logic assumes that a country which is more vulnerable to external security threats will be less inclined to commence its own military operations (since doing so would risk triggering reprisals which, by stipulation, might cause it serious injury). Again, this logic is not implausible. But neither is it incontestable. Another story one could tell is that a country which faces substantial security vulnerabilities may become more aggressive, because the reality of a substantial security threat makes certain risks which might otherwise be tolerable become intolerable. If one gets intelligence that a militant group on your border is accumulating missiles, the way you respond if you're confident those missiles can be intercepted without causing significant harm is very different from the way you respond if those missiles pose a severe and substantial threat to your civilian population. The latter nation may be far more likely to attack preemptively in circumstances where the former country may not feel the need for an immediate proactive response.

In Israel's case, after all, the most concrete recent instantiation of Israel having to reckon with a significant security vulnerability -- a severe threat to its civilian population that it was unable to stop -- was October 7 itself. And no matter how one characterizes what happened next, the one thing that I think is entirely indisputable is that Israel reckoning with real and genuine security vulnerability did not cause it to pull back from militarism due to being forced to account for the possibility that the other side can really hurt them. Much the opposite: the concrete illustration of an acute security vulnerability made Israel lightyears more aggressive and more militaristic than it was before. A security situation it had previously thought it had "managed" now had revealed itself to be incalculably more dangerous than they realized, and the result of that realization was, to say the least, not a sober reassessment of the merits of military action.

Now, to be sure, I don't want to say that this argument is necessarily "right" either. Again, the initial critique has a logic to it as well; my suspicion is that the actual play-out will not vindicate either narrative without qualification. The point is simply to say that it is not self-evident, as it is sometimes presented to be, that taking away Iron Dome will yield a more cautious and less belligerent Israel.

But now let's go ahead and accept the premise. If we don't provide Israel with Iron Dome, it will be less militaristic, to the greater good of all. If one is in fact persuaded by this premise, I still think it is important to be very clear on what the core logic of this approach is. Clear away the rhetorical fog, and the argument here is simply this:

If more Israeli civilians were endangered or died, things would be better.

Again, I will reiterate: I accept there is an instrumental logic to this. The argument is not that Israeli deaths are good for their own sake, it's that they will prompt Israel to be more cautious and restrained, and ultimately reduce the net amount of conflict and warfare in the reason. My challenge above notwithstanding, this argument is not transparently absurd.

Nonetheless, we shouldn't obscure the point. The argument against Iron Dome is, by its nature, consciously attempting to leverage the endangerment of civilians for (noble) strategic ends. It is by no means the only argument that takes such a form: one need not venture far from Israel proper to hear other renditions of such a claim, that permitting greater endangerment of civilians will ultimately bring about peace faster. And all I will say to this is that there are good reasons why, bloodless strategic logic notwithstanding, progressives might want to draw a redline around arguments like this, and that if we do not draw such a line ourselves we cannot act too appalled when others don't draw redlines against other attempts to leverage the endangerment of civilians for good policy ends. For my part, I fully admit I lack the stomach to put innocent civilians at greater risk for the greater good, and I'm proud of my shortcoming in that respect.

I'll be honest though -- my gut sense is that the driving force behind those who want to take away Iron Dome is not any sort of assessment of the strategic debate I outlined above at all. It is a more primal rebellion against the perceived unfairness of it all: that Israel can wreak so much death and destruction on its neighbors and face comparatively little in return. I don't doubt that, for most of these people, the genuine hope really is a reduction in violence and death for everyone. But my strong suspicion is that, if that doesn't come to pass, a tolerable second-best outcome would be if Israeli civilian deaths rose to approach those of their neighbors. If it turns out that the elimination of Iron Dome does other than get a bunch more Israeli civilians killed -- it does not make Palestinians safer, it perhaps even puts them in more immediate peril -- well, we still have a karmic retribution if nothing else, and that's worth it on its own. And while I guess I can wrap my head around the egalitarian sentiment behind this, once again, I lack the stomach to engineer greater civilian death, even under as noble a rubric as "fairness".

Of course, not everybody is me. But if you are inclined towards opposing Israel having the Iron Dome based on the sketch provided above, I would ask that you have the courage to own your conviction. You are okay with leveraging civilian endangerment in order to achieve your desired policy ends. You of a kind with many other people, of many other ideological persuasions and of many other partisan loyalties across many other conflicts, that hold similar beliefs. Take note of the company you keep.

Trump Admin Can Get Its Jew List

A federal district court has agreed to enforce the EEOC's request for a list of Jewish-affiliated individuals at the University of Pennsylvania, rejected an attempt by Penn and various stakeholders (including Penn's Jewish Law Students association) to quash the subpoena. You can read Judge Gerald Pappert's opinion here.

On the legal question, the judge's decision is justifiable. The standard for issuing a subpoena in this context is very low, and under normal circumstances there are good reasons why the EEOC needs to investigatory power in this domain. Moreover, with one possible exception (which I'll discuss in a minute), I agree the challengers didn't muster much concrete evidence that they would be substantially burdened by the subpoena or that it would impinge on their protected interests.

I was not happy, however, to see the dismissive tone Judge Pappert took towards the challenge, and particular the echoes they raised regarding "Jew lists." He accused the interveners, including the Jewish interveners, of 

significantly rais[ing] the dispute's temperature by impliedly and even expressly comparing the EEOC's efforts to protect Jewish employees from antisemitism to the Holocaust and the Nazis' compilation of 'lists of Jews.' Such allegations are unfortunate and inappropriate. [emphasis original]

Elsewhere, he was disdainful of the interveners notation of ties Trump administration officials have to antisemitic and neo-Nazi organizations, characterizing them as "unserious political arguments, not serious legal ones."

I confess I am quite tired of people lecturing Jews on how inappropriate and unserious we are being when we raise concerns about antisemitism. There is a reason why the Trump administration's request raised echoes of "Jew lists" (a history which, I'd add, is by no means restricted to Nazi Germany) and the Trump administration's well-documented connections to far-right antisemites bolsters those echoes. It is not lying or political opportunism which prompts these fears. The fact that these far-right associations have discredited the Trump administration in the eyes of much of the Jewish community should be seen as an embarrassment for the Trump administration, not a failing on the part of the Jews not understanding who their "protectors" truly are. 

On that note, one might think that, if the EEOC was actually concerned about protecting Penn's Jewish employees from antisemitism, it would respond more empathically to concerns from many of those very same employees that the EEOC's conduct was making them feel less, rather than more, secure. This is perhaps the paradigmatic arrogance of the Trump administration when it comes to antisemitism -- it dreams of fighting antisemitism without those pesky Jews getting in the way. The court's breezy acceptance of the Trump administration's preferred framing -- of course they're protecting Jewish employees -- is part of this. The Jews don't seem to feel very protected! But that doesn't matter: after all, are we really going to let some Jew tell us how to fight antisemitism?

Again, this is admittedly an objection to tone, and the law is extremely deferential to the EEOC (and I think -- though perhaps regrettably in this specific context -- appropriately so under normal conditions). At the end of the day, historical "echoes" aside, the challengers did not do much to establish much of a credible burden on the subpoena (the claim that Jews would stop praying with the Jewish Law Students Association was extremely speculative, for instance). But the one potential exception I saw was in the EEOC's request to get the information regarding participants in a "listening session" Penn conducted on antisemitism, or who reported instances of antisemitism to the Penn administration. Penn asserted that requiring disclosure of the participants here would deter employees from reporting instances of antisemitism, significantly obstructing Penn's ability to gather information on its campus climate. The court's analysis rejecting this argument was quite thin -- it didn't view the argument as establishing a burden on Penn, and it stated without elaboration that permitting Penn to withhold the names of complainants would simply give it a "weapon" to interfere with the EEOC's investigation.

On this issue, at least, the arguments Penn raised deserved greater attention. I have an article forthcoming that is expressly about how the Trump administration's hyper-aggressive approach to "fighting antisemitism" may in many cases actually serve to deter Jewish students and stakeholders from speaking out on antisemitism. One of my keynote examples is precisely a scenario like this: the student who may wish to attend a "listening session" and give her perspective on the campus climate for Jewish students. She nonetheless may decline to participate so if she knows that her remarks might become grist for a MAGA war on her university. There are many students, one imagines, who might have concerns they wish to raise, but do not want to make a (literal) federal case out of them -- particularly in the present moment, where they know that a "federal case" could mean catastrophic funding cuts for her department or arrests and deportations of her classmates. 

This chilling effect is only enhanced by the clear propensity of the Trump administration to gleefully and overtly run roughshod over the will of the Jewish students it is nominally "protecting" -- she knows full well that even a loud and unambiguous objection will not even reduce, let alone eliminate, the risk that her words and participation will be conscripted into a destructive project she abhors. In that context, it is very likely she will elect not to participate, to her detriment and to the detriment of the university which earnestly wishes to provide a space where it can hear testimony on these issues.

Again, on the law this still may a close question -- we simply aren't well-equipped right now to handle situations where a substantial portion of group the EEOC claims to be "protecting" believes that the EEOC is in fact an adversary (and that the EEOC's very investigation "on their behalf" is a component of its antagonistic campaign). So maybe even here, the information must be disclosed.

But the concerns here are legitimate ones. They are not inappropriate, they are not unserious, they are not simply the raising of political hackles. Jews have good reason for their concerns here and good reasons to mistrust what the EEOC is up to; that's true regardless of how the legal argument should play out.

In Trump's first term, we went through a similar situation to this following reports that the administration was classifying Jews as a distinct "national origin" so as to qualify Jews for protection under Title VI. This was not a novel decision -- it's roots dated back to both the Bush and Obama administration -- but in the context of this administration it raised serious worries by many Jews that Trump was trying to position us as foreign, of another "nation", and thus not truly American. I wrote then that "The fight against discrimination requires judgment—but many Jews don’t trust this administration to exercise it appropriately."

That mistrust has only grown, and only grown more justified, in the present moment. Perhaps a trustworthy administration would not garner such an intense backlash if it sought information about Jewish community members in the context of an ongoing antisemitism investigation. But Jews are not obligated to trust this administration. And whatever the right result was on the formal legal question, it was unnecessary and fundamentally improper for Judge Pappert to deride the basis for our mistrust.

How To Be Honored By Friends

I've occasionally commented on the weird "honors" I get from nutty lunatics who hate me. Sure, they're extreme, and sure, they openly detest me, and sure, they probably are mentally ill. But on the other hand, do my friends place me in a group of some of the most illustrious legal scholars of the 21st century? Do my friends dedicate whole websites to declaring me a "disgusting Zionist punk" (it's still up!)? My enemies, I've often quipped, seem to have a far higher opinion of me than my so-called friends do!

It is in that light, though, that I'm especially pleased about two presentations I gave over the past week -- the first at the Washington State Judiciary's appellate conference, and the second at Reed College. Both talks were wonderful in their own right. But it was equally exciting who I shared the program with. In Washington, I followed directly after none other than Erwin Chemerinsky. And at Reed, I was part of a "free speech" program headlined by Cass Sunstein. Those are pretty big names -- ones fit, I daresay, for even the most discerning ramble from a damaged personality blasting off email screeds about Jewish perfidy.

So thanks to all my friends and supporters, for finally catching up to my enemies. I'm profoundly grateful.

(But in all seriousness -- I am profoundly grateful. It is awe-inspiring to seriously keep company like that).

Food Poisoning

I had food poisoning this weekend. Did I miss anything important?

I was all ready to write a very TMI blog post regaling you with the dirty details of my day -- which was exactly as miserable you might expect -- but I finally thought better of it. I will relay one story though (Yeah, it's a little gross. Feel free to skip this one).

As you know, when you throw up you can sometimes taste what food item it is that's coming back up. For me, last night, it was a donut.

At first, I was annoyed that that was what was being regurgitated. What a waste of a perfectly good donut!

But then I thought (and this was all occurring while I was hunched over the toilet), "well, if I have to throw up anything, isn't the donut the best thing to throw up? After all I already tasted and enjoyed it -- that's the fun part! All that's happening now is I skip the nutritional impact!"

And I was very pleased with myself for approximately two seconds, before I realized that I just invented an eating disorder from first principles. Whoops.

(Later in the day it happened again -- I was marveling at the fact that stuff kept coming out of me even as I wasn't putting any food into me, and I caught myself wondering how much weight I must have lost over the course of the day. The answer was: less than you'd think! Becoming violently ill is in fact not a good weight loss strategy, to say nothing of a general healthy living strategy, and I don't recommend it at all!).