Prosecuting Our Military When It Murders

The United States military continues to carry out illegal strikes on civilian boats allegedly engaged in drug trafficking.

The case that this is criminal is, in my view, not close. Contrary to the President's assertions, there is no serious argument that we are in the midst of an armed conflict with ... who exactly? Drug traffickers? Their behavior (if indeed the boaters are engaged in wrongful activity at all, which is hardly assured) is the epitome of criminal misconduct, which must be dealt with via criminal proceedings. We do not get to fire rockets at the vehicles of suspected criminals. And even if one could strain to argue that this falls under a military engagement, the follow-up strikes on shipwrecked sailors violates longstanding rules in the law of warfare. We literally sentenced Nazis to death for doing this.

There is a lot of enthusiasm for "prosecutions" amongst Democrats now. I share that enthusiasm. We must make clear that, if and when Democrats retake power, there will be consequences for the criminal activities that have run rampant through this administrative. And in many ways, this represents both an easy and an important case. 

It's easy because not only is the law incredibly clear, but there's no difficulty identifying the responsible party. This isn't a situation where we have to track down a masked unknown grunt who stood out for particularly brutal aggression (as in many of the ICE cases), or alternatively, where we have to do difficult work in tying said grunt's actions to specific orders from higher-ups. Here the military context makes command responsibility obvious, and the commanding General, Francis Donovan, is named in the Pentagon press releases bragging about the "operations".

It's important because restoring the applicability of law of war principles to the U.S. military is of absolute existential importance for a nation with the most powerful military on the planet. Without downplaying the many, many breaches, there is a huge difference between a military that is internally committed to law of war rules and one that from the top decides to openly flout them. The latter situation is how you do start seeing what Trump wanted to do, but couldn't, in term 1 -- deploying the full might of the American military apparatus against the American citizenry to retain a dictatorial grip on power.

And on top of all that, of all the potential criminals one might find harbored by the Trump administration, General Donovan is probably among the most vulnerable. The president's pardon power does seem to extend at least partially into the realm of military justice (and in fact, Trump has already pardoned several war criminals). but it seems clear to me that the pardon power cannot completely obstruct a future Commander-in-Chief's power to drum out of service an officer whom the CinC lacks faith in as a legitimate holder of rank and service. Of everybody implicated in Trumpist crimes, those in the military are, formally speaking, probably the least insulated from facing accountability from a future administration.

But in spite of all that, I suspect that prosecuting General Donovan and his compatriots responsible for criminal actions on the high seas will be much more fraught and less popular than essentially any other prosecution a future administration might bring. The political gravity pulling against prosecuting members of the military -- regardless of the context -- is just going to be too strong. Rightly or wrongly, I suspect it will be insurmountable for any junior officers or enlisted men involved in the operation. And even for the senior leadership, I can't imagine it going over well even in a context where there is a significant demand to prosecute, say, ICE leaders or Trump associates found to have embezzled money.

I don't have a good answer for this because, again, the need to restore deterrence here is nothing short of existential. We've seen in the Israeli case -- it barely managed to limp across a conviction in 2016 when IDF soldier Elor Azaria shot an unarmed Palestinian, and just doing that nearly tore the country apart. That set the stage for the non-prosecution decision for soldiers accused of sexual abuse of Palestinian detainees ten years later -- a decision that again came on the heels of widespread government intervention (including joining in outright rioting) in support of the abusers. The culture of impunity that's developed in the intervening years no doubt plays no small role in the brutal devastation the IDF has wreaked against civilian infrastructure in Gaza, the West Bank, and Lebanon (the soldiers punished for vandalizing a Jesus statute had every reasonable expectation of assuming they'd be let off scot-free were it not for the  bad fortune of angering one of the few foreign constituencies the Israeli government still cares about appeasing). As disastrous as that trajectory has been in the Israeli case, I don't think they're in any way unique -- most countries (and certainly our country) blanches at holding their uniformed military personnel accountable for misdeeds.

So I don't know. It might that these prosecutions, or other retributive measures, have to be a little less media-forward than others. They might not be political winners (and to be clear, I do think that going after corrupt Trump apparatchiks will, in general, very much be a political winner in addition to being the right thing to do). But it still needs to be done.

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 nothing 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.

Face Forward

It is another day of milestones for Nathaniel.

First of all, we put him in a front-facing stroller seat for the first time. I already miss being able to look at his adorable little face as we go out for walks, but I'm excited for him to get a better view of the great big world out there (admittedly, today the "great big world" was mostly Target and the mall. But we did walk a bit around Multnomah Village, so there was that).

Pictured: Two desperate civilians on the streets of war-torn Portland

Second, we purchased what we hope will be Nathaniel's "permanent" car seat, as he's almost too big for his baby car seat. It's got some lovely bells and whistles -- the 360 swivel to get him out is especially appreciated -- but once again it comes with cost: the baby car seat functioned as an easy-breezy carrier (it easily detached from the car seat dock and latched into the stroller, and it was also easy to just carry around), and once again it looks like those days are just about over. Now if we want to carry Nathaniel, we have to actually carry him. RIP my back.

And third and finally, tonight we are leaving Nathaniel for the first time with an actual babysitter, as Jill and I go out to see Dan Soder (aka Mafee from Billions) do standup comedy. To be clear, we've left Nathaniel with grandparents before. And we've had a non-relative babysitter play with Nathaniel while we were still in the house before. But this will be the first time we're combining both. Unfortunately, Nathaniel seems to be at a strong stranger-danger/separation anxiety phase, and so we can imagine there might be a lot of tears and screaming. Obviously he'll be fine, this is an important milestone, there will be no permanent damage, etc. -- but mostly, we're just trying not to think about it too hard.

And meanwhile, as all of this is happening, my own government is threatening to invade my city.

This feels reminiscent of the last post I wrote before Nathaniel was born -- the many, many ways that moment (just days before inauguration) felt like a "midpoint" in my life. Before child, after child. Before age, after age. Before autocracy, after autocracy.

And this feels similar. I am still, in the scheme of things, new to Portland. We've been here less than five years. But I can honestly say that I love this city. I love living here, I love working here, and I love the idea of raising a family here.

The stories that Trump and his lackeys tell of Portland are -- and I cannot stress this hard enough -- lies. They are lies. This city is not "war-torn". It is not some sort of anarchistic hellscape. We are not unsafe here -- we go downtown all the time to enjoy Portland's culture offerings. What would make us unsafe is the prospect of being literally subjected to an invasion because the man in charge of the most powerful army in the world has decided he hates my city and hates the people who live here -- which is to say he hates me, hates my wife, hates my baby, and hates all my friends and neighbors. Make no mistake: that's why this is happening. It is not for our benefit. It is not to make Portland safe. It is to make Portland suffer.

And we will suffer. How many people will avoid downtown because they don't want to get caught in the Stasi crosshairs? How many shops will lose business? How many families will be broken up, or even if they're not, have sleepless nights and days terrified that they will be broken up? That's the wages of this war, and they're not remotely accidental. The cruelty continues to be the point.

A Question About Extradition

Hypothetical question:

Suppose a U.S. citizen kills the citizen of another country on the high seas. Suppose further that the American judicial system refuses to impose legal liability on the citizen (e.g., because they conclude his actions weren't a crime, or they find some immunity doctrine bars the prosecution). The victim's country, by contrast, does want to prosecute.

Can the United States extradite the citizen to the other nation as a way of getting around the functional immunity provided by our own courts? (Does the "high seas" part of the hypothetical matter? What if the foreign national was killed or injured on U.S. soil?).

Purely a hypothetical question, of course.

The MAGA Embrace of the Nazi Aesthetic

A few days ago, the Department of Homeland Security put out an ad for new ICE recruits that featured a rather distinctive font:

It was yet another wink and nod to Nazism -- the original, German variety -- a move that was already present during Trump's campaign but has become increasingly ascendant since he entered office.

Consider a few examples:

• Another ICE ad running the slogan "Which Way, American Man?" -- a reference to the neo-Nazi tract "Which Way, Western Man?"
• E.J. Antoni, the Trump administration's new nominee to head the Bureau of Labor Standards -- an unqualified hack on any metric whose main appeal is clearly a willingness to manipulate the data in Trump's favor -- did an interview where he put a giant painting of the Nazi battleship Bismarck (sunk by the Allies in 1941) as his background.
• Fox commentator Greg Gutfield urging conservatives to "reclaim" the word "Nazi" ("with a hard 'I'"), leading his panel in such hilarious banter like "what up, my Nazi" and "Nazi please!".
• The Washington Times ran a story on army recruiting featuring a pink triangle (the Nazi symbol for gay men) with a "cancel" slash through it; Trump himself reposted it image and all.

I will pause here so we can all let out the collective "CAN YOU IMAGINE IF ILHAN OMAR!!!!" that's slowly been building to a breaking point.

Now, in all these cases, one can -- with extraordinary effort -- try to explain them away. The DHS' font is not technically called "the Nazi font" (it's "Fraktur"), it's just wildly popular with neo-Nazis (despite being banned by the Nazi Party in 1941!). We've already heard tale from Harlan Crowe about how enjoyment of Nazi paraphernalia doesn't make one a Nazi, just a history buff. Even Gutfield's gleeful embrace of being a "Nazi" was framed as "reclaiming" a slur.

That all of these excuses are dumb and unpersuasive is no barrier. Indeed, the foolishness is the point -- recall Sartre's famous discussion of how antisemites like to "play"; to force their adversaries to take seriously their frivolous assertions, then mock them for treating the frivolous as serious. The antisemites wink at their fellows with their choice of font, then say "dude, it's just a font!" with a smirk when the alarm is raised.

But also, it's easier to dismiss these cases when they're viewed in isolation. Put together, there's a pattern, and that pattern is a straightforward embrace of Nazi imagery as a key part of the MAGA aesthetic. This, of course, is coupled with the promotion of policy and personnel who also align with neo-Nazism and White Supremacism. And while the policies are obviously more concretely dangerous, the aesthetic choice is, in its way, more damning as evidence of who this administration is -- it cannot hide behind putatively neutral "policy debates", it serves no purpose other than to elevate bigots and haters. That's what it's designed to do, and that's what it is doing. The arrows all point in the same direction. And we should not hesitate to name what is happening.

UPDATE: JTA has two news stories on these events, one on Antoni's "Nazi warship" and one on antisemitic dogwhistles coming out of the Department of Homeland Security.

What Will Go Wrong Hardest, Fastest?

It's hard to keep track of the firehose of sewage the Trump administration has already started pumping out in its first few days. From civil rights to cybersecurity, the administration has been taking a wrecking ball to the American governmental project, with consequences that will likely reverberate for years, if not decades.

But I don't want to wait that long. I'm curious: which of Trump's endeavors are likely to blow up hardest, fastest, in a way that is noticeable to the broader public?

For example, take the cancellation of scheduled funding meetings at the National Institute of Health. This is a terrible thing, that will needlessly obstruct critical medical research. But while it's certainly noticeable to the doctors and scientists on the inside, the public impact of it won't be felt for a long time. It's not like there's a cancer cure that was scheduled to come out tomorrow that now is being shelved.

Ditto Pete Hegseth likely getting confirmed as Secretary of Defense. It is very bad that an alcoholic sexual predator is overseeing America's military, but we're not going to lose Buffalo to a Canadian invasion in the short-term. The fallout -- in terms of military readiness, efficiency, professionalism, and so on -- will occur over a longer timescale.

By contrast, the myriad governmental hiring freezes Trump has announced do seem to be breaking out of containment, insofar as they are kneecapping many people who in many cases were all set to move long distances to start a new job, only to have it abruptly pulled out from under them. I'm already seeing a few "leopards ate my face" posts by Trump supporters who are sure that Trump couldn't possibly have meant to do exactly what he said he was going to do.

Tariffs are another good candidate for something that will immediately, dramatically, and noticeably impact American pocketbooks -- especially if they set off another bout of inflation.

But maybe there's something else that will explode harder, faster, and stronger than I anticipate. I would say I can't wait to find out, but I suspect my preferences will have little to say on the matter.

The Looming(?) Haredi Draft

For many years, Israel has effectively exempted Haredi youth from the otherwise universal requirement (for Jews) of IDF service. This has been a serious source of tension and strife in Israeli society -- a rallying point for secular and moderate Jews who view the Haredim as failing to pull their weight, and an absolute bedrock priority for Orthodox parties for whom avoiding military service is their number one policy demand.

The blockbuster decision out of the Israeli supreme court you might have read about doesn't quite compel the draft to start, but it does say that Haredim can no longer get their governmental stipends if they don't serve. In practice, the Haredi community is going to view it as the same thing -- an end to the system where they got paid to study Torah instead of serve in the army.

I won't claim to be an expert on this issue -- this is where I comment as an "interested amateur" -- but here are some initial thoughts.

• One immediate way to identify a complete know-nothing hack is if you see anyone saying this ruling demonstrates that the Israeli government is starving for manpower or some other vulgar materialist explanation. The current government, which depends on the support of Orthodox parties for its majority, was and is absolutely dead-set against this ruling.
• That said, the current war and the strain it's placed on Israel's military capacities has certainly even further elevated this issue's salience amongst the opposition, and that may have helped create a further permission structure for the court to rule as it did.
• It is entirely possible that this ruling could bring down Bibi's government. The mercurial nature of the Orthodox parties is I think a bit overstated (people are so proud for knowing better than the naive story about the ultra-Orthodox being the primary drivers of Israeli right-wing extremism -- "they've joined left-wing governments before! Shas backed land for peace!" -- that they skip past the ways that this social cadre has genuinely shifted rightward in recent years). But this issue really is the sine qua for the ultra-Orthodox, and if the current government can't secure it, that's going to create a yawning fissure in an already creaky coalition.
• It might be weird to think of "more militarization" as helping bolster pro-peace impulses in Israel. But we might see some shift in that direction, for at least two reasons. 
• Number one, in general, if every social sector is sharing the burden of military service, that may put a damper on needless military adventurism. Parties that are happy to risk the bodies of other Israelis to defend settlement outposts may be less willing to do so once their bodies are on the line. 
• Number two, for the Haredi parties in particular, the only way they might plausibly get their exemptions back is in a world where Israel is less reliant on constant militarization. So that could create some possibility for working relationship with more liberal forces in the state; albeit an "alliance" that will always be on shaky footing.

In any event, stay tuned -- this is a big deal.

You'll Miss It When It's Gone (Iran Deal Edition)

The UN Security Council today declined to extend an arms embargo against Iran, over furious protests by the United States, Israel, and Arab Gulf States. The main opponents of the arms embargo were, naturally, Russia and China. But several European nations -- France, Germany, and the UK -- expressed hesitation, claiming that the United States was no longer in a position to credibly push for sanctions on Iran after it withdrew from the JCPOA (aka "the Iran Deal").

Fancy that. And speaking of the JCPOA, the Conference of Presidents of Major American Jewish Organizations, in its own statement denouncing the UNSC's vote, urged that Security Council consider implementing the JCPOA's "snapback" provisions as an alternative means of blocking Iran from advancing its nuclear weapons program. An interesting idea -- if only a certain country hadn't detonated the JCPOA framework! It's almost like the Iran Deal contained important leverage and hard-won commitments even from countries not otherwise inclined to care about Iranian aggression, and when the United States unilaterally abandoned the deal we lost a ton of international credibility that we can't easily earn back.

Many, many people warned against the reckless decision to back out of the JCPOA, precisely on the grounds that doing so would ruin the ability of the United States to credibly pursue any sort of robust diplomatic containment strategy against Iran going forward. And now we're seeing the real fruits of the Trump administration's decision. Way back when the Iran Deal was initially being debated, I noted that one of the most persuasive arguments I read in its favor was the experts who observed that every time we reject or abandon an "Iran deal", the one we're able to get two or three years later is far worse than the one we left behind. The common cycle is a deal is proposed, conservatives say "how dare you give everything away to the terrorist regime of Iran", we abandon the deal, and then next time around ... we're in an even worse negotiating posture than we were before and what once looked like "giving everything away" now is an unattainable fantasy.

We are, as always, apparently doomed to keep reliving history. Heckuva job, Trumpie.

Finding Something Nice To Say: Tulsi Gabbard Edition

My position on the 2020 Democratic primary, and all the diverse candidates running -- from Kamala Harris to Elizabeth Warren to Pete Buttigieg to Bernie Sanders -- has always been "There are many great candidates running for the Democratic nomination, and also Tulsi Gabbard."

That hasn't changed. But you should always find something nice to say about everyone, and here's mine for her.

Nobody should disrespect Tulsi Gabbard's military service. That principle I think is pretty well adhered-to, and obviously it doesn't mean that she's immune from critique due to her military service. But in particular, I do not think it is wrong or hypocritical for Rep. Gabbard to take the positions that she does on international affairs given her military service. That is something I have seen people do -- calling her out for opposing "regime-change" wars in the Middle East given that she effectively participated in such wars herself.

But military veterans are allowed to come to the conclusion that the wars they've fought in were ill-advised or unjust. It is wrong (and foolhardy) to insist that all veterans, to the extent that they rely upon their combat service in public affairs, can only speak out in favor of more interventions or operations of the sorts they participated in.

Rep. Gabbard's foreign policy positions are abysmal (here ends the "nice" part). But they're not more abysmal because of her military service. On that score, she deserves the same respect accorded to any other veteran -- including respecting her right to come to her own conclusion that the military operations she participated in reflected bad American policy.

Anyway, having said all that -- Rep. Gabbard's campaign continues to get no traction, and it is to the Democratic electorate's great credit that they have  shown no evidence of even being slightly tempted by her brand of Assadist-apologizing faux "anti-imperialism".

UNHRC Releases Report on Rights Violations in Gaza "March of Return" Protests

The UNHRC has released the results of its investigation into alleged human rights violations that occurred during the "Great March of Return" on the Gaza/Israel border last year (see my contemporaneous post on use-of-force issues written at the time of the protests). It concludes that there is "reason to believe" that Israeli forces committed human rights violations related to the excessive use of lethal force against protesters. Pro-Israel NGOs, unsurprisingly, rejected the findings.

I read the report. And I have some quibbles with some of its conclusions, which I'll mention at the end. As has become usual in these cases, it was unable to take testimony from the Israeli side (because Israel refused to cooperate with the investigation, arguably with good reason). In general, I take a relatively dim view of the UNHRC, and I think it is fair to appropriately discount any of its findings simply based on the source. The UNHRC, as a body, really is structurally biased against Israel.

Still, at the end of the day? I read the report. And I think it's pretty fair. It does mention Palestinian rights violations (notably, the use of incendiary devices to torch the Israeli countryside, but also violent attacks on Israeli border guards). It expressly considers cases where Israeli soldiers resorted to lethal force in circumstances where there was an ongoing or imminent attack, and declines to find cause for a rights violation in those cases. Where someone is firing a rifle at Israeli soldiers, the Israelis are allowed to fire back.

But the big problem here is that the Rules of Engagement Israel put in force for dealing with the protests really were too loose. I agree with the commission that the March of Return cannot, in toto, be cast as a military operation -- it was primarily a civilian campaign, albeit one that at various times Hamas tried to infiltrate into a military one (this is one of my quibbles -- the report doesn't treat with sufficient seriousness the problem of Hamas' admixture of its military operations into civilian protests -- a decision which bears significant responsibility for putting the protesters at risk).

In such a circumstance, Israel is acting in a law enforcement capacity, and can only resort to lethal force in cases where there is an imminent threat to life or limb. "Imminent" threat, as the Commission correctly notes, is measured as a matter of "moments", not hours.

Yet the Israeli RoE was considerably more expansive -- it effectively authorized the use of deadly force as a riot dispersal technique, including targeting "main inciters", which was recklessly irresponsible and predictably would lead to the use of lethal force in inappropriate circumstances. Even assuming marchers breaching the fence could constitute an "imminent" threat, it does not warrant the use of deadly force against persons who are still a football field's length away.

The problems with the RoE are one of the reasons why I'm less (not un-) concerned that the commission wasn't able to get the Israeli "side" of the story. Yes, that might make a difference in assessing individual cases. But there isn't much serious dispute regarding what the RoE was, and it is reasonable to infer that an RoE which viewed riotous protests at the border as tantamount to an "imminent" threat would at least somewhat predictably lead to uses of lethal force that are indefensible under international law.

The common objection to reports like these is that they act to "second-guess" on-the-ground military decision-making in a hot zone. And in a sense, they do -- though, again, it seems wrong to characterize the entirety of the protests as "hot" in the relevant sense. The widely shared clips of violence occurring by protesters are, if not irrelevant, than certainly incomplete. In cases where protesters were violent, that can warrant the use of deadly force; but the existence of violence among protesters does not create a blanket authorization for firing live ammunition anywhere and anywhere. Again, this is the point of the "imminence" requirement: lethal force is justified in particular moments characterized by a particular threat; the justification of using lethal force in this spot at this moment does not transfer to any use of lethal force at any time during the broader protest. Indeed, the core of the problem is the proposed transitivity, which is what ends up getting you to Avigdor Liberman's "there are no naive people in Gaza" claim and sanctions anyone and everyone as a target.

But more broadly: the reason we have rules regarding laws of war and international humanitarian law is, in a sense, to do that "second-guessing". It is to judge conduct in precisely the sort of situations that occur here. To dismiss such judgments as second-guessing is to moot this entire arena of law. That simply cannot be right.

This broad endorsement of the report is not wholly unqualified. I mentioned one problem already -- the report in my view gives the short-shrift to the manner in which the intentional mixing of military or otherwise violent actors into the civilian protests played a role in creating dangerous conditions for the civilians. Likewise, the report doesn't seem to take much account of the obvious fact that bullets travel and sometimes miss their intended target -- it is too much to assume that any bullet that hits any civilian actor is necessarily aimed at that actor. While some of the incidents described in the report attempt to paint a reasonably full spatial picture of where the victim was in relation to other protesters (most importantly, those who were acting violently or in ways that otherwise could have warranted a lethal response), the authors were inconsistent on this score.

Yet, reading the report holistically and taking theses shortcomings into account, they do not ultimately negate the core conclusion -- that there are reasonable grounds to believe (which is not, it is worth noting, the same as "definitively proven") that Israeli forces -- likely as a result of decisions made regarding the rules of engagement -- violated international law regarding excessive use of lethal force against Gazan protesters.

I remarked in my post from last year that too many people who style themselves "pro-Israel" seem more concerned with calling the IDF "the most moral army in the world" than in it being such. To be a "moral army" requires actually adhering to certain rules and standards, and punishing people when they violate them. It's not simply a matter of assertion; there is no law of the metaphysical universe which makes it conceptually impossible for the Israeli army to commit rights violations. We figure out whether they did or did not by investigating the possibility seriously, and without predisposition to either a "guilty" or "innocent" verdict.

In terms of that project, it is indeed unfortunate that the UNHRC has shot its credibility to hell and back on the matter of Israel; it makes it easy to reflexively dismiss this report based on its provenance. But dismissal and then silence should not be an adequate response -- indeed, it is just as partial and biased as the UNHRC is (fairly) accused of being. If one does not trust the UNHRC investigation, the right call is to launch one whose partiality is less questionable. Either the results will confirm that Israeli forces fired only when there was an imminent risk of death or serious injury -- or they won't. We cannot prejudge that outcome based on what we hope the answer will be.

D.C. Circuit Dissolves Injunction Against Trans Military Ban

In a brief decision, the D.C. Circuit dissolved a lower court injunction against Trump's ban on military service by trans individuals who seek to transition, concluding that the injunction was not sufficiently deferential to the military and that in any event the ban was not a "blanket" prohibition on service by trans individuals because "not all transgender persons seek to transition to their preferred gender or have gender dysphoria".

If that latter determination causes you to roll your eyes, (a) you're right and (b) this is exactly what I've been warning about in, e.g., my "expelling Hillel can't be antisemitic because not every Jew likes Hillel" essays. This line of reasoning is one of the most powerful pathways for the conservative dismantlement of anti-discrimination law -- it is utterly unsurprising to see it used here to defend the otherwise transparently ridiculous assertion that the trans service ban isn't a trans service ban (see also: Trump v. Hawaii's "Muslim ban isn't a Muslim ban"). Find a tiny sliver of the relevant community you're okay with, gerrymander the discrimination so that sliver is admitted, and presto! No more discrimination.

As several other courts have also enjoined the trans ban, the D.C. Circuit's decision will not have any immediate effect.

The Khan Family and Volunteering to Sacrifice

The speech given by the family of Captain Humayun Khan, Muslim, son of immigrants, who died serving in the American army in Iraq, was one of the most powerful moments of this campaign. The response of Donald Trump and his campaign has been one of the darkest. Smearing a Gold Star family, insinuating that the mother of the fallen hero wasn't "allowed" to speak -- it was truly grotesque. Several Trump supporters have, regrettably, followed suit -- this column has been making the rounds on Twitter for example. An old friend of mine posted another one on Facebook by a man named Chris Mark arguing that since Khan volunteered to serve in the American army, he -- not his parents -- is the only one who could be said to have sacrificed. Mark was clearly frustrated that the Khans were supporting a political party that he viewed as insufficiently supportive of the troops, and contended that "[t]o conflate the need to prevent potential terrorists from entering our country with the belief that ‘all Muslims’ should be banned is simply wrong and disingenuous."

I'm reposting, with minor edits, my response to the friend. Before I do so, though, I should observe that my friend is himself a person of color, of South Asian descent, who is currently serving in the American armed forces. I make that notation because it is always worth noting the perspective from which someone is coming from, particularly when it might diverge from popular expectations regarding what someone from that background would think. In any event, here is what I wrote in reply:

The question of whether a Gold Star family has itself "sacrificed" something strikes me as semantic at best; I've never before heard anyone chiding the family of a fallen soldier that they cannot speak of sacrifice. I'm doubtful one wants to plant one's flag on those grounds.

That said, the spirit of voluntarism does matter. All those who serve choose to put themselves in harm's way; that choice demands respect and admiration. But Trump's proposal for "a total and complete shutdown of Muslims entering the United States" (it is Mark who is "simply wrong and disingenuous" to characterize this as "the need to prevent potential terrorists from entering our country". There is nobody who does not seek to prevent the latter; Trump was unambiguous in calling precisely for a blanket ban on all Muslim arrivals, as the link in Mark's own letter attests to) disrespects that voluntarism. The ethic of service, of voluntary sacrifice, is but a manifestation of the larger American ethos that we are who we choose to be, not what society or government assumes us to be. Khan chose to be a soldier and chose to risk the ultimate sacrifice. But were it up to Trump, Capt. Khan would have never had the opportunity to make the choice to serve in the first place, because Trump would not have let his family arrive in the United States at all. Trump's policy treats the Khan family as a threat solely due to their faith. That judgment crashes against the reality that they produced a hero.

There's a more basic point at work here, though. I can understand the frustration from someone who sees a military family carrying water for a party that he feels doesn't support the troops. As the respective conventions make evident, there are many other families of servicemembers or other public servants that feel the same way about the GOP. And it will thus inevitably be the case that some persons who have or whose loved ones have sacrificed themselves for our nation will be the authors of pained charges against those political figures they view as having failed them and their families. And those charges may not be right or accurate or even fair. The GOP has put up some Benghazi families in similar roles to that taken up by Khan's parents; no doubt Secretary Clinton views their charges as deeply wrongful.

But if you're a decent public servant dealing with a grieving family -- even one saying bad things about you, even one giving a speech attacking you -- you take the hit. You don't issue a snarky press release, you don't suggest the family forbids women from talking. Cindy Sheehan said plenty of things about President Bush that I (no fan of 43) found pretty ridiculous. But Bush, to his credit, didn't degrade or demean her. He took the hit, because sometimes taking the hit is part of the job. And that basic decency, unfortunately, is something Donald Trump proved he is just not capable of doing.

Has Trump finally gone too far? I doubt it. If "too far" hasn't happened yet, I don't know why this would change anything. But who knows. It would be poetic justice if the straw that finally broke this bigoted camel's back was that Donald Trump could not help himself in attacking the family of a Muslim, first-generation, American war hero.

Sleeping in Fear, Part II

The other day, I noted the abject paranoia of some Texans convinced that a U.S. army exercise in the southwestern United States was a cover for a military takeover leading to the seizure of their guns and their internment in FEMA concentration camps. My snarky comment was that perhaps this fear would give these residents more empathy towards the far more reasonable fears that many people of color have towards the armed governing authorities, which pose a far less speculative threat to their lives and livelihoods.

But I also admit sharing Digby's sentiments, which were to marvel at just how disrespectful this is towards the men and women who serve in our armed forces. This conspiracy-mongering relies, at its root, on the presumption that the young people who volunteer to risk their lives in defense of America will, at the drop of a hat, just elect to destroy their own country as tools of oppression and despotism. That is a statement of contempt, and entirely undeserved contempt, and it really is shocking that prominent politicians from a party that perceives itself as "pro-military" would indulge in such ugly sentiments.

Sleeping in Fear

As we reflect on the Baltimore protests and how they have once again focused our minds on how many Americans simply cannot have confidence that the authorities are there to protect them, rather than oppress them, a local Texas official gets at the heart of the problem in poignant fashion:

"It's a sad when people's greatest fear is their own government," [Bastrop County Judge Paul] Pape said. "Think about the ramification of that. If Americans go to sleep at night worrying whether their own government is going to sell them out before morning, it'd be hard to sleep."

A striking sentiment.

Of course, Pape was talking about local Texas residents convinced that America was about to launch a military takeover of Texas, seeking to " "confiscate guns or implement martial law" under guise of a major military exercise. But, you know, I'm sure this experience of rampant paranoia will attune them to the tribulations of their fellow Americans who have far more rational reasons to view their own government with trepidation.

People I Don't Listen To

I don't have strong feelings regarding what we should be doing regarding Syria. People who I trust are similarly ambivalent, which makes me feel more secure in my own uncertainty. But there are several classes of person who I definitely don't trust:

* People who are similarly unsure regarding what we should be doing in Syria, but are quite certain that Obama should be impeached over whatever we do (or don't do).

* People who support bombing Syria because their entire foreign policy could be summed up in a Michael Bay movie.

* People who aren't sure what's going on in Syria, but are absolutely sure that the Jews are behind it.

Fortunately, this significantly narrows down the class of persons whose opinions I need to consider.

Transportation Gridlock

I want to give some props to Robert Farley for writing a very rare sort of post: Taking a topic I don't really care about but am predisposed to adhere to a particular narrative, and clearly explaining why my instincts are too simplistic.

His target is a David Ignatius column on proposed Air Force cuts. The Air Force had proposed reducing large quantities of its transport aircraft (C-130s and the like). Congressmen and Governors objected, particularly because such aircraft often are used by local national guard units for civilian aid missions. The theme of the column is how meddling politicians are blocking cuts even the Air Force wants and maintaining a bloated military because they want to preserve local pork.

I will cop that, as a complete non-expert, that narrative appeals to me too. I think our military budget is bloated, and I'm inclined to attribute large parts of this to politicians thinking parochially. And I'm particularly prone to think this when a service branch is blocked from making cuts it itself thinks are warranted.

Farley takes me to task, and his analysis is worth reading in full. The short version is that the Air Force has a long-standing ideological aversion to transport and other "support" roles, that the Air Force's conception of its own needs is as parochial and self-interested as any other segment of bureaucracy, and that the only way to resolve competing conceptions of how our military resources should be prioritized is through the political process (and if the result of that process is that more dollars flow to planes that can be used to fight fires and conduct local search and rescue, and fewer to long-range strategic bombers, that's not necessarily a bad thing).

Again, good analysis aside, it's always good to have casually-formed and weakly-supported intuitions popped -- and it's not the easiest thing to do (particularly when its convincing a liberal that we should keep military hardware that a service branch claims it doesn't need on the advice of politicians). For accomplishing this somewhat rare feat, I give a hearty salute to Mr. Farley.

Keeping Things On the Table

I nominate "off the table" as the dumbest concept in foreign policy. It's why Alan Dershowitz says J Street isn't "pro-Israel" -- they allegedly demand that the military option be "off the table" with respect to Iran (J Street denies that's their position, they simply think a sanctions-based approach makes more sense).

But what, exactly, does "off the table" even mean here? Unless J Street has secretly sabotaged our nation's armed forces, the "military option" is always "on the table". We still have planes! They can still bomb things! That's always available. Even if we decide not to do it now, we can change our mind later -- the military will still be there. Now, of course, at some point it might be too late -- but that could be the case if the military option is "on the table" but ultimately not used.

Compare, for example, if Iran said they were developing nuclear weapons, but using them offensively was "off the table". Would you be comforted? No, of course not -- in part because we might not trust them, but in larger part because even if they're being genuine they can always change their mind instantly. As can we -- military capacity isn't a perishable good. It'll keep.

Many Motives, One World

The constant debate in terms about Israel is about whether any given act it takes is done to "preserve Israeli security" or "maintain the occupation". The answer, of course, is "both". Or more accurately, "either". Do they maintain the occupation? Yes. Do they protect Israel from real, extant security threats? Also yes. Israel has legitimate and illegitimate objectives, and the same actions can plausibly advance either. It is often impossible to tell which is the "real" motive from afar. The odds are, it is a mixture of each.

Take the three companies that the PCUSA may soon divest from: Caterpillar, Motorola, and Hewlett-Packard. Caterpillar sells armored bulldozers to Israel. Motorola runs cell phone networks in the settlements. And Hewlett-Packard provides information technology to the Israeli navy.

Caterpillar's bulldozers are sometimes used to build Israeli settlements, which is bad. Sometimes they demolish Palestinian houses because these houses are built "illegally" (in quotes because the process for Palestinians to gain building approval seems to be deliberately arcane and Kafka-esque), which is also bad. Sometimes it's because these houses are being used as bases for terrorist activity and firing, which is good. Sometimes it's to do normal construction activities inside Israel, which is good. When Caterpillar operates in Israel, it advances all these possibilities at the same time. If it withdraws from Israel, it retards all these objectives. It is true that we can sometimes clearly distinguish between good and bad usages -- but not always: demolition of a Palestinian house on claims that it is being used to smuggle weapons or as a firing post for terrorist will likely be met with skepticism by pro-Palestinian activists claiming it is gratuitous punishment -- we really have no way of knowing who is telling the truth from afar.

Motorola provides cellular technology to settlements, and settlements are illegal. Is that bad? I suppose, though it's unclear why this is different from companies which sell, say, food to settlers. Motorola also apparently provides some weapons technology (such as bomb fuses), and again, one can point out that the IDF's capacity to deliver lethal force can be used either to "protect Israel" (good) or "maintain an occupation" (bad). And one also points out that these are indistinguishable from afar. That Israel has an effective military by definition means its military is capable of pursuing both legitimate and illegitimate objectives. Trying to cripple that military means the opposite -- it would weaken both Israel's ability to maintain an occupation and it's ability to defend itself. It's difficult to disentangle these from one another.

Hewlett-Packard is perhaps the toughest case to justify. HP provides technology to Israeli Navy. To the extent this debate is about the settlements, HP is irrelevant -- Gaza has no settlements and the West Bank isn't on the water. Rather, HP is presumably being indicted because of the navy's efforts in placing a blockade on Gaza. I'm not convinced the blockade is illegal at all (it seems to fall inside the rules laid out by the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, and most of the arguments against its legality either don't cite any legal arguments at all, or, as in the case of the UNHRC's report, made me embarrassed to share the profession of "attorney" with them). Of course, I also don't care about international law anyway -- so the blockade may still be wrong. In any event, the point is more or less the same: a blockade both can restrict the flow of necessary goods into Gaza (bad), and restrict the flow of weapons into Gaza (good).

A large part of why the bulk of the Jewish community is so uncomfortable with divestment from these companies is that they are unconvinced the divesters are putting any moral weight on the other side of the ledger. That is to say, while I say that Motorola simultaneously is enabling "good" (enabling Israel to defend itself) and "bad" (enabling Israel to maintain an occupation), the divesters don't consider the former to be "good" at all. It's either "irrelevant" or perhaps even "bad". This is particularly so with HP, which arguably isn't doing anything wrong at all -- it is not supporting the settlements at all. But regardless, the point is that there are two sides to the ledger, and it's not clear that even legitimate Israeli interests are being taken to account -- indeed, whether it is acknowledged that Israel has interests capable of being characterized as legitimate at all. In essence, it's the same problem in reverse -- the same tactics could plausibly advance legitimate (end the occupation) and illegitimate (end Israel) objectives, and it is impossible to tell from afar which is which.

So what does one do? In essence, the problem is one of trust -- all parties have ample reason to distrust one another, and little way of verifying which moves are legitimate and which ones are aggressive -- they tend to look the same. So I tend to focus on two, seemingly contradictory ambitions: (1) Rebuilding trust and (2) Making it so parties don't have to trust one another. The first is obvious -- mistrust significantly diminishes the range of actions one party can take without provoking the other. So in order to get things done, there has to be space for political action to breathe. That means listening to the other's concerns and claims of serious threat, even if one thinks they're unfounded. I don't think that Israel secretly harbors a desire to maintain control of Jericho forever, but I understand why Palestinians worry about it. And so Israel should behave in ways that alleviate that concern, and be mindful of how their actions interact with that lens upon Israeli motivations. Likewise folks operating from a pro-Palestinian perspective -- they may be absolutely confident that they're totally incorporating Jewish interests and concerns, but Jews seem convinced of the opposite. They have to take account of that fact, rather than engaging in further inflammation. This is the general project of groups like OneVoice, and why they are worthy of your support.

The second proposal is less romantic, but in some ways more important. Israelis and Palestinians don't trust one another. They don't think the other has their best interests at heart. Each are probably, at least to some degree, right about that. But right now they have to trust on another, because they're enmeshed in a relationship of mutual dependency -- both have to take actions predicated on what they believe the other will do. That is one reason why a two-state solution is not just the best solution but also, as Ziad Asali of the American Task Force for Palestine reminds us, is the only one that will ever work. A situation where Israelis and Palestinians are regularly in a position to influence the other's lives is a situation that will likely be characterized by strife, discord, and probably violence. So the goal should be to extricate the warring parties from one another as soon as possible.

This also, in part, is why I do not support a demilitarized Palestine. Part of the reason is simply because I want Palestine to have a monopoly on violence in its territory (if the PA doesn't have guns, then only Hamas will have them). But in part, it's also because I want Palestine to be in a position where it doesn't need to trust Israeli good intentions because it is capable of defending itself. For the same reason, I support Israel having a strong military (including a strong navy). Israel has a great many people who claim to want to destroy it. If Israel is militarily weak, it has to take those threats extremely seriously (in neorealist terms, it has to act aggressively on turn one because it can't guarantee there will be a turn two). If Israel is militarily strong, it can afford to take more risks and concessions because if its goodwill is exploited, it can rest confident its ability to utterly demolish whoever it is that was dumb enough to cross them. Power doesn't guarantee cooperation, but it creates the conditions by which cooperation is possible, because it makes it so that losing once doesn't mean losing everything. And that same logic is why, ultimately, empowering Palestine is the largest step in making Israel secure -- and vice versa.

The Spy Who Loved Me

One of Israel's shining achievements is its relatively egalitarian treatment of gays and lesbians, not just compared to its neighbors but compared to any other country in the world. Among other things, Israel allowed gays and lesbians to serve openly in the IDF well before the US repealed "Don't Ask Don't Tell" (as ex-Rep. Duncan Hunter (R-CA) argued, this must have been because Israel lacks "Judeo-Christian values").

But National Union MK Uri Ariel, unwilling to allow Israel to have any amount of a good thing, has urged Israel stop letting gays serve in the army. To be fair, Ariel is a fringe player (National Union is a small, far-right party too extreme even for Netanyahu's right-wing coalition). And Ariel himself has admitted to serving as a spy for militant settlers as they worked to disrupt IDF activity, making him at best a weak source of credible information about what benefits Israel's security or the IDF (at worst, it makes him a traitor).

Jesus Loves Superior Firepower

Franklin Graham promotes bombing Syrian airstrips to protect civilians from the Assad regime. This, in of itself, may not be a fringe position, but Robert Farley is surely correct that the rhetorical decision to cast the F-15E Strike Eagle in the role of the Good Samaritan may be a little incongruous.