What's Scary and Not About Anwar Al-Awalki

Anwar Al-Awalki, an American citizen affiliated with al-Qaeda, has been killed in a drone strike. This has set off a torrential debate about the legality of such strikes.

What's odd is that there is something worrisome about Al-Awalki -- but not what's getting most of the attention. It's not that he's a citizen. It's not that he was killed. It's rather a deeper lacuna in the laws of warfare and how they work (and don't work) in international conflicts against an enemy like al-Qaeda.

Let's start at the beginning, though. The argument being put out by folks like Glenn Greenwald is that liberals who were deeply concerned about President Bush's detainment policies should be apoplectic now that Obama has killed a man. There's obviously something intuitively plausible about this (killing is more serious than even indefinite imprisonment), but as a matter of law I think it's rather obviously wrong. In an armed conflict, the right of a party to kill opposing combatants is not controversial (it is subject to many restrictions, but none relevant here); however, if the combatant is captured, a plethora of new legal obligations open up.

Take a very uncontroversial example: The United States and Germany are engaged in a conventional war. An American soldier sees a German soldier. He shoots and kills him. Obviously, there is no legal problem with that. That's just war. One doesn't need a warrant or a trial, or even give an opportunity to surrender. On the other hand, if the soldier is captured, then a great many legal protections open up. One cannot, for example, summarily execute the person whom 10 minutes ago one would have had every legal right to kill. In fact, if one wants to charge them with a crime or impose any sort of punitive sanctions (POW confinement is considered non-punitive and for that reason standards attached to it are relatively generous), one has to afford considerable procedural protections. This, of course, is reflective of the peculiar status of war: it's legally sanctioned killing of individuals who have probably not committed (much less been convicted of) a crime.

Notably, nothing in the above argument turns on whether the German soldier was an American citizen or not. And it's not clear why it should -- a citizen who is engaged in armed conflict for a foreign party should, in the midst of such hostilities, be treated as a member of that armed group. And that seems reflected in both the letter and structure of the relevant law. First, as Matt Yglesias observes, one can lose one's citizenship already by "Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S." (8 U.S.C. 1481(a)(3)) -- it is more or less a failure of updating that this doesn't encompass non-governmental military actors engaged in hostilities against the U.S.. Second, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court in fact directly dealt with a situation where a German belligerent was also an American citizen.* Third, the Fifth Amendment doesn't restrict itself to citizens anyway (rather encompassing "persons") -- and that's good, for (as I'll explain below), the real worries about operations like this don't really become any less significant if the target is a non-citizen.

Andrew of Coffee House Talks tries to argue that because the Constitution carves out a specific crime of treason, an American citizen effectively can't be a military belligerent but must be charged with that particular crime. This is simply wrong: one can both be a combatant subject to the rules of warfare and a traitor. As explained above, once captured a person who has allegedly committed treason must be afforded constitutionally required procedural protections; but that does not mean they are somehow exempted from the normal (non-criminal) rules of war (the upshot of Andrew's argument is that every shot fired by the Union in the Civil War was illegal).

So the problem isn't that Al-Awalki was killed. And the problem isn't that Al-Awalki's a citizen. So what is the problem?

Two spring to mind. The first is whether Al-Awalki actually was a belligerent. Recall that this is basically the same worry that was most salient about the Bush administration's detainee policy -- there is no problem detaining actual enemy belligerents and neither is there a problem killing them, but there is a huge problem about doing those things to random innocent schmoes. But with Al-Awalki the controversy isn't really about that: nobody seems to dispute he was part of al-Qaeda, rather, the controversy seems to stem from his supposedly non-combat role. Now, as I understand it one can be part of an armed group while serving in a non-armed capacity (e.g., a radio operator or a quartermaster) and still be a valid target. But this is an area, though, where I simply don't know the relevant facts about Al-Awalki's role.

In any event, at best I can say that while Al-Awalki may not be the troublesome case, we can easily imagine a situation where the target denies being involved with al-Qaeda at all. And then we have a problem. In normal war, you know who the enemy is -- they wear a uniform. In fact, it's a breach of the laws of war not to. And that's because we want to make sure we can easily distinguish valid military targets from bystanders. But of course, al-Qaeda does not operate like that, and that makes things considerably more complex. We can say this is one more thing dickish about al-Qaeda and other terrorist organizations who do not distinguish themselves from civilian populations, but (while that's 100% true), it doesn't actually resolve the problem.

The second problem is that the above analysis does not have a spatial restriction. It could easily apply to alleged al-Qaeda belligerents on American soil. And this is difficult. On the one hand, it can't be the case that once someone reaches American soil, we have to treat them as a criminal and not a belligerent (see, e.g., the Civil War, and Quirin for that matter). On the other hand, if Al-Awalki had stepped off the plane in New York City, I think we'd all agree the proper response is to try and arrest him, not shoot him in the face.

The best answer I can give is that in areas where America exercises police power (i.e., American soil), there should an extremely high presumption in favor of using the police power to arrest alleged enemy belligerents, excepting only if they are currently engaged in hostilities. I don't know if a presumption of that variety is encoded in current positive law (the Posse Comitatus Act comes closest). But there are certainly excellent prudential reasons to prefer this -- aside from the importance above of ensuring we get the right guy, where do get said guy there's more intelligence to be gained from a live mind than a dead body.

* The citizen (Haupt) was executed. I think Quirin is problematic, not because Haupt was a citizen, but because once the belligerents were confined the procedural protections accorded were too lax.

Vicente Fox News

I think Mitt Romney has to be the odds-on favorite to win the GOP nomination. And when he does, this ad will guarantee that he'll be throttled amongst Latino voters.

Never Before Has the Supreme Court Been Asked To Uphold The Acronym "PPACA"....

Commenting on the United States' cert petition in the PPACA litigation, the Justice Department wrote:

Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Randy Barnett replies:

Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was ... wait for it ... unprecedented.

For starters, I'm not sure what the argument is here. Does the Constitution change because Republicans threw a temper tantrum about this bill that was ... wait for it ... unprecedented in American legislative history? For that matter, I don't even know what it means to pass a law in a "partisan manner". It's hardly the case that Democrats acted to specifically prevent Republicans from joining the legislation, or locked them out of negotiations. Indeed, given the scope and breadth of GOP intransigence, I'd say they made (wait for it!) unprecedented efforts to include Republican voices. There are laws which were drafted specifically so as to "box out" the other party so they couldn't join on to an otherwise salutary policy accomplishment (e.g., The Unborn Victims of Violence Act). But PPACA wasn't anything like that.

But the entire subtext here is misleading. The Civil Rights Act was "bipartisan" primarily because America hadn't undergone the massive realignment whereby the South shifted from Democratic to Republican. But the fact that Southern Dixiecrats split ranks with their soon-to-be-ex-colleagues hardly implies anything about that law being less controversial at the time of passage. It just illustrates that we live in a political climate where party label more accurately reflects polarization.

Play Little Dumplings

This was a proposal to use recycled tires to create a children's playground for refugee children from Myanmar. As you can see, it appears to represent a terrifying squid-beast that the already-traumatized children are attempting to flee from as fast as their little legs can carry them.

DOMA Repeal Goes Bipartisan

The bill to repeal the Defense of Marriage Act (Freudian slip -- I started to write "Defense Against Marriage Act) has obtained its first Republican co-sponsor -- and she ain't no backbencher. It's Rep. Rep. Ileana Ros-Lehtinen (R-FL), chairwoman of the House Foreign Affairs Committee and two decade House veteran. Certainly, this is a far more joyous occasion then the last time I talked about Rep. Ros-Lehtinen on my blog!

Kudos to the Floridian, and congratulations to the gay rights movement for this significant step forward.

Race-Baiting is the Most Post-Racial Act of All

Shorter Roger Simon: The relevant locus point for thinking about race in America is a Black politician whose support amongst the Black community hovers around the Planck Constant. And you know he's "post-racial" because he likes to tell largely White audiences that most Black people can't think for themselves and remain "on the plantation."

Incidentally, Simon's general criticism of ethnically-affiliated institutions for historically marginalized groups (the column calls for the disbandment of the Congressional Black Caucus, which has "no justification any more, if [it] ever did.") would equally apply to, among other things, Cain's alma mater (Morehouse College) and the state of Israel.

Sunday Punch Roundup

A bit of a rough weekend here, and unfortunately Jill is out of town.

* * *

Melissa Harris-Perry on why (some) White liberals are turning on Obama.

An interesting retrospective by the participants in the notorious "Stanford Prison Experiment."

After a Palestinian stone-thrower apparently caused a car accident which killed a Jewish settler and his infant child, settler militants are vowing revenge, with one extremist Rabbi proclaiming "There are no innocents in war."

Convicts told: Go to church or go to jail. It's not an Establishment Clause violation, the police chief argues, because you've got a choice!

The Marine Times cover on the repeal of DADT is, indeed, fantastic.

I thought the Herman Cain fad had passed, but apparently nobody thought to tell Florida.

This is from a few days back, but the new Union of Jewish Students (UK) campaign for a two state solution respecting the rights and dignity of Israelis and Palestinians alike looks very cool. I'm dubious that it will have any impact on campus radicals, but hopefully it can make a dent on the middle.

US gives high-powered military equipment to Mid-East ally fighting terrorist organization which seeks an independent homeland for a stateless, oppressed people.

Looks like Congressional Republicans have been reading my Comment.

Spain Recognizes Israel as Jewish State

In what is seen as a shocking turnaround, Spain -- traditionally considered one of the most pro-Palestinian EU states -- has announced that it recognizes Israel "as the embodiment of the project to create a homeland for the Jewish people." In accordance with this, Spain also asserted that the Palestinian refugee problem should be resolved in a way that does not threaten Israel's Jewish demographic character.

This comes in the midst of an aggressive push by the Palestinian Authority for statehood recognition at the UN. One of the reasons the UN bid bothers me is that the UN -- being institutionally biased -- is a forum in which Palestinians don't have to concede anything to be given everything they want. It is an end-run around negotiations, because a considerable portion of the UN membership body doesn't think Israel has rights in the first place. It's effectively cost-free for Palestine, as it garners a huge (albeit symbolic) victory in exchange for nothing on their end.

But Spain's action suggests that some of the more prominent states supporting Palestinian statehood are going to tell the PA what it needs to hear -- that is, that a final status agreement is going to include concessions that respect Jewish and Israeli rights too. In others words, if the PA is going to press the issue, every issue has to be pressed -- including those Palestinians would like not to think about.

Deep in the Amazon

Stellar local journalism by the Allentown Morning Call reveals rather brutal working conditions at the local Amazon.com warehouse. Things are rough in that section of Pennsylvania right now, which means Amazon.com is perfectly happy to plow through an ever-rotating mass of temporary workers lured with the promise of a full-time job, then put through a blistering pace until they can't keep up and are fired or quit (or simply are injured).

UCI Students Convicted for Disrupting Speech

Last year we talked about an incident at UC-Irvine where various students affiliated with the university's Muslim Student Union disrupted a speech being given at the school by Israeli ambassador Michael Oren. UCI ended up suspending the MSU (the suspension was originally for a year, but this was reduced on appeal). But the students were also criminally charged under a California statute which prohibits "willfully disturb[ing] or break[ing] up any assembly or meeting that is not unlawful in its character", and have just been convicted.

Eugene Volokh analyzes the statute and its application against First Amendment doctrine and thinks it is constitutionally permissible as a legitimate time, place, and manner restriction.

Project Runway Power Rankings!

Oliv(i)er's departure last night left us with seven designers remaining. And while many are excited to see him go, let's be fair -- the last few challenges have not played to his strengths. I mean, that was two straight weeks with models who project into three-dimensional space!

Anyway, roughly halfway through the season, where do the designers stand in this viewer's humble opinion? Read on to find out!

(1) Viktor: After an iffy start, he's found his groove and become one of the strongest and most consistent designers on the show. A few of designs (particularly the gown which should have won the prints challenge) have been nothing short of stunning, although much of the time he's simply standing out amongst a weak field. Still, he seems to be in excellent shape to make Fashion Week.

(2) Anya: The fan favorite (as well as my own), I firmly believe that if this was Project Runway: Season 11 she'd be running away with it. Anya clearly has the most natural eye for design of any of the designers, and the strongest point of view that has lead to some truly beautiful garments. But while her sewing skills have mostly held up, we saw the first stumble this past challenge, and remains possible she could unravel (figuratively and literally).

(3) Josh M.: I know, I know -- I find him obnoxious too (though his too-obvious crush on Anya is adorable). And frankly, I don't think he's that good. But he does have some intriguing ideas, it's just an inability to edit that does him in. The cynic would say that if you throw enough details and features and flaps and pockets on a garment, of course some of them will be interesting (if only by accident). I say that I see some genuinely neat stuff on his outfits that signal a real point of view.

(4) Anthony Ryan: Another fan favorite, but annoyingly inconsistent, and a lot of times too safe. In client-challenges, Anthony Ryan seems to excel in giving the customer what he or she wants, which is a mixed-blessing, since clients often don't want something too cutting edge.

(5) Kimberly: Another extremely inconsistent designer. She's had several looks that demonstrate a real flair for design, but others that were just "wtf" moments. What's odd about Kimberly is that even though she typically does have good construction, I often don't feel like that's a strong suit, probably because sometimes the concept is so off-kilter that even making it "well" will still look bad.

(6) Bert: Bert started this season as the loveable curmudgeon, transitioned into a pure villain, and has since swung back to being (mostly) loveable. Good for Bert for showing genuine character growth! Unfortunately, Bert's design aesthetic doesn't lend itself to this show. He knows how to sew, and he knows how to work with clients (surprisingly enough, given his crotchety attitude), but he rarely makes looks that have any "pop", and that's going to catch up with him sooner rather than later.

(7) Laura Kathleen: Ugh. I don't see what the judges see in her. Laura Kathleen thinks she is so hot, and she's so not. Her designs are unified in being boring and off-the-rack; her avant-garde look was basically a dull prom dress. She doesn't have any major strengths as a designer that I can see, and she's exceptionally catty to boot. I hope she goes home and soon.

Will Palestine Be a State For All Palestinians?

This is a distressing interview published in Lebanon's Daily Star. Abdullah Abdullah, Palestine's ambassador to Lebanon, informs us that Palestinian refugees will not be given automatic citizenship in any newly created Palestinian state. This applies to Palestinians living in surrounding countries (including Lebanon), but also to Palestinians living in refugee camps in the West Bank and Gaza (that is, in the territory that comprises the to-be-created Palestinian state):

The ambassador unequivocally says that Palestinian refugees would not become citizens of the sought for U.N.-recognized Palestinian state, an issue that has been much discussed. “They are Palestinians, that’s their identity,” he says. “But … they are not automatically citizens.”

This would not only apply to refugees in countries such as Lebanon, Egypt, Syria and Jordan or the other 132 countries where Abdullah says Palestinians reside. Abdullah said that “even Palestinian refugees who are living in [refugee camps] inside the [Palestinian] state, they are still refugees. They will not be considered citizens.”

Abdullah said that the new Palestinian state would “absolutely not” be issuing Palestinian passports to refugees.
[...]
The right of return that Abdullah says is to be negotiated would not only apply to those Palestinians whose origins are within the 1967 borders of the state, he adds. “The state is the 1967 borders, but the refugees are not only from the 1967 borders. The refugees are from all over Palestine. When we have a state accepted as a member of the United Nations, this is not the end of the conflict. This is not a solution to the conflict. This is only a new framework that will change the rules of the game.”

Of course, PA policy on this matter is not set by their Ambassador to Lebanon. Still, this is extremely troublesome on several levels. In terms of the desire to resolve the conflict, it is notable that the Ambassador explicitly is disclaiming that as an objective or a result of attaining statehood. In this, he echoes right-wing Israeli sentiment that the Palestinian movement is not fundamentally about attaining self-determination, but about obliterating Israel as well. Meanwhile, from a human rights framework, the Ambassador's position maintains and ratifies the stateless status of millions of Palestinians, including many which would be under the jurisdiction of the new Palestine. That sort of callousness should give everyone pause.

Different Speeches for Different Audiences

Apparently, "the left" is disappointed with President Obama's UN speech, which focused primarily on chastising the international community for its obsessive focus on Israel and its deliberate apathy towards that state's security and legitimacy needs. They wanted to see a more aggressive push by the President towards restarting negotiations.

Whatever. First, the Obama administration has hardly been quiet about pushing for a return to the negotiating table. I'm not sure why it was particularly important that he lay out a 12-point plan before this particular body. Much like how the President's pressure on Palestinians apparently doesn't count because it wasn't sufficiently public, apparently it is valid practice to ignore the administration's tireless efforts to return the two parties to the negotiating table because it is merely being plastered over the front page of every newspaper in America, rather than at the UNGA.

But more importantly, forums matter, and this was a speech that the UNGA diplomats needed to hear. The fact of the matter is that one of the major obstacles to a just peace between Israel and Palestine is that a substantial portion of the international community rejects in principle basic things like "Israel shouldn't be destroyed" or "it's bad when suicide bombers blow up cafes in Tel Aviv". That norm has been for too long unchallenged, and it is a great thing that the President took it upon himself to break that streak. While Avigdor Lieberman's approval fills me with shame, it is notable that President Obama gave what Ha'aretz is calling "probably the warmest pro-Israel speech ever given at an annual UN General Assembly meeting by any U.S. president, bar none." This is a body that doesn't hear many such speeches, and it needs to.

Not every forum is like the UN, of course. Not every relevant location to the Israeli/Palestinian conflict is a place where Israeli concerns are systematically marginalized and the Jewish people are routinely denigrated. In other places, it is the Palestinians who are marginalized and ignored, and in those places people need to be informed of the legitimate aspirations and true suffering of the Palestinian people. And in other locations, the problem isn't really lack of awareness of either side's plight, but a simple need to get people back in a room together. And in those places, that's the message that should be sent.

But the UN is a specific audience, with a specific character flaw that needed to be picked out. It's not the only thing President Obama should do, but in this forum, before this audience, it was the right speech at the right time.

The Puzzle of Obama as Not Pro-Israel

NY Mag has a good and much-talked about article up on President Obama's struggles to be seen as "pro-Israel", even though by any objective metric he has been a stalwart supporter of the Jewish state. President Obama has leaned upon Israel, this is true, but he has also leaned upon the Palestinians as well. Moreover, Obama's pressure on Israel has in my view clearly been in support of policies in Israel's own interests anyway (the settlements are catastrophic for Israel from both a moral and strategic perspective). His outlook on the conflict mirrors of that of many prominent Israelis, most notably opposition leader Tzipi Livni.

But therein lies a large part of the problem. President Obama's positions are perfectly within the Israeli mainstream. But they happen to be reflected by the party out of power. The current Prime Minister and Obama do not see eye-to-eye. It is easy to cast personal and political tensions between the two as tension between America and Israel.

I actually think David Bernstein has a solid read on this. I don't think that Obama was actively trying to bring down Bibi's coalition (though I don't think he would have shed any tears if it had happened), but I agree that President Obama's avowed "anti-Likud" standpoint is going to be problematic when Likud is in power. President Obama is clearly correct that "pro-Israel" and "pro-Likud" are not the same thing, but the potential for political awkwardness is obvious.

Bernstein also notes the rise of Israel as a central part of conservative domestic political mobilization as something President Obama didn't anticipate. I think this is right as well, but I think Bernstein elides a critical part of this story. The effort by the GOP to turn Israel into a partisan wedge necessarily implies that there will be a concerted effort by GOP operatives to cast President Obama as anti-Israel regardless of whether the attack is fair or not. That's how politics works, of course -- it is not as if virulent Obama opponents are going to come out and say "hey, he's got a point." They are going to try and find an avenue for why whatever it is he's advocating represents bad policy by a bad president who should be defeated. The conservative critique, in other words, doesn't flow organically out of policy disputes, but is political theater promulgated by political opponents who hate Obama far more than they love Israel.

The most obvious example of this was Noah Pollak, who in 24 hours did a complete 180 on his beliefs about what policies were good for Israel after realizing the opportunity to launch an attack ad against the President. This helps illuminate part of President Obama's sin: he is guilty of caring about Israel enough to actually have opinions about it, and try and promote them. People like Pollak, on the other hand, appear to be complete mercenaries when it comes to Israel -- they don't have actual beliefs about what is best for Israel, they just have a political calculation about how to use Israel to hurt Obama. Others explicitly urge that to be "pro-Israel" is to lack any such beliefs -- a standpoint which is frankly bizarre. If I told you I cared deeply about America and its future, and you said "Oh really? What policies do you support?" and I replied "oh, it doesn't matter to me -- whatever the current government decides, I'll just support that", you'd be right to challenge just how deep my commitment runs. Caring about something means having opinions about it.

Obviously, one can be genuinely pro-Israel and disagree with President Obama. But a sober look at political realities requires us to admit that a not-insubstantial portion of the political attack on Obama comes from those who have no discernible (or at least stable) opinions about Israel at all -- who view Israel as a useful rhetorical tool to bash the President and will happily mouth whatever position makes those attacks feasible at any given time. These people, of course, are no real friends of Israel at all, and as Robert Wexler boldly put forth today, it is Israelis who will "pay in blood" for it.

Mearsheimer's New Friend

I'm pretty skittish about the term "self-hating Jew". Remember that post I wrote about how self-loving Jews is a better moniker? Most of the time, it seems fairer and more sensible, and keeps the focus of the debate where it belongs.

But there are exceptions. Gilad Atzmon, for example, describes himself as a "proud self-hating Jew". So far from me to disagree. Anyway, Atzmon is one of the most vicious and vitriolic anti-Semitic writers out there today -- even stalwart anti-Zionists of the "[I] want the state of Israel to be destroyed" mold think he's beyond the pale -- and even the briefest perusal of his writings demonstrates a proclivity for attacking Jews, Judaism, and Jewishness with the fervor of a neo-Nazi.

So it is disappointing to see that, if Atzmon's publisher is to be believed, John Mearsheimer has endorsed Atzmon's new book. You can follow the links to see some of what that endorsement entails, with Atzmon approvingly quoting proto-Nazi Otto Weininger (himself an early Atzmon prototype) on the subject of Jews and Jewishness.

It has to be said that, deserved condemnations aside, there is something deeply tragic about this. The Israel Lobby, in addition to whatever moral problems there might be with it, was also a bad book on a purely scholarly level. And Mearsheimer has only slipped from there -- his list of "good Jews" was an appalling exercise, and this latest step towards the depths of anti-Semitic depravity is even worse. But once upon a time, Mearsheimer was an important international relations scholar. His theories on neo-realism were (and are) exceptionally important. Ironically, The Israel Lobby itself is virtually incomprehensible under Mearsheimer's own theoretical model (neo-realism posits that domestic lobbies should be descriptively irrelevant in international relations).

I don't mean to say we should forgive Mearsheimer simply because he was once important and had valuable things to say. But we should recognize the tragedy of the fall. It has been swift, shocking, and very, very ugly.

Bibi: Dumb or Wrong?

Tom Friedman has a column up lambasting Bibi Netanyahu for putting Israel's future as a Jewish, democratic state at risk. Matt Yglesias says there's "an awful lot to agree with" in Friedman's column, but argues that he gives Bibi too much credit in attributing his postures to ignorance. Rather, Yglesias' argues, Bibi has made it evident that he has a strong substantive commitment to the settler project, and all the damage Israel's taking to its international reputation are costs Bibi is absorbing with open eyes. It's not that Bibi is making a "misstep" -- he's just made a calculation that his allegiance to settlements is worth growing international isolation.

I'll parrot Yglesias' words back: there's "an awful lot to agree with" in that. I do agree that Bibi is substantively committed to a vision of greater Israel that is in my view immoral and unsustainable. While he has some recognition that a Palestinian state will have to come into existence eventually, he doesn't really have any plan for it, nor does he have any qualms about gobbling up as much of the West Bank as possible before that day occurs. This is important to note, because while Israel has had leaders willing to make bold strides for peace, Bibi is not one of them, and that fact has to be part of any short-term appraisal of how Israel and Palestine got to the position they're in right now.

Still, I don't think it gets the whole story either. First, I'll reiterate my view that Bibi's primary motivator is neither ignorance about Israel's situation, nor ideological commitment to Greater Israel, but simply short term personal/political self-interest. Yglesias cites his decision to stay with Likud when Ariel Sharon broke off to form Kadima as proof of his status as an ideologue who is willing to gamble, but I think it is more consistent with basic political self-preservation instincts. Even while Sharon was part of Likud, Netanyahu was constantly sniping at him from the right--that's a large part of why Sharon packed up and left. Netanyahu would have had no credibility in Kadima and would have been marginalized if he'd tried to join. Leading Likud's rump faction was clearly his best move, and it did indeed pay off.

Second, Yglesias' point that Bibi knows and is willing to accept growing international isolation as a price to pay for settlements doesn't account for a key aspect of Bibi's worldview: that international isolation is simply a fact of life of Israel no matter what it does, and has little to do with the settlement project at all. Settlements are the current preferred rhetoric for folks who find it impolitic to simply say they dislike Israel as a concept, but they aren't actually playing any causal role. True or not (I think it's more true than Yglesias thinks but less than Bibi does), for someone who believes that "international isolation" is going to be a relative non-factor in one's analysis, because it isn't something that can be helped.

Finally, the fact that Netanyahu has, at times, recognized the need for a Palestinian state and respects Israel's democratic character indicates, to me, that settlement expansion is at the very least not his only ideological commitment. He is not just a National Union MK in drag. But I think he's simply too mentally weak to see the tension, and thus is attempting to delude himself that Israel can maintain its current path without consequence. It is a painful choice for Bibi, and sometimes when people are faced with painful choices they just attempt to put off choosing, covering their eyes to the dilemma in front of them. That, too, is part of what Bibi is doing.

The Laziest Nation on Earth

Most politicians go around telling folks that America "is the greatest nation on earth." A bit of patriotic puffery, perhaps, but not without some truth either -- our accomplishments, influence, and reach stand unrivaled across human history. But Rep. Steve King (R-IA) has a different perspective. America is "a nation of slackers" -- and that's why we have an unemployment crisis.

Now, since Rep. King is among the dimmest bulbs in Congress, I feel compelled to explain again that the unemployment rate only includes persons who lack a job but are still pursuing one (otherwise it would include, for example, full-time students, and that makes no sense). So the idea that unemployment is simply the result of people slacking off is -- in addition to insanely offensive -- not really possible to square with what unemployment measures.

Michael Moore's Frustrations Boil Out Into Racism

Left-winger Michael Moore (Moore is not, to my knowledge, a registered Democrat, finding them too moderate for his tastes) has lashed out against Barack Obama, finding him to be acting too White for his tastes: "I went into the polls voting for the black guy, and what I got was the white guy..."

Bill Maher (who is a professional jerk) finds it funny too. As Ta-Nehisi Coates observes, it's just racist.

. It really is no better than the Kenyan anti-colonial bit, and in fact is good deal worse. I said this yesterday on twitter, but it would be as if my Jewish accountant messed up my taxes and I said, "Dude, you're Jewish, what the hell?!?!"

In fact, I'd be getting exactly what I deserved. If you paid more attention to Obama's skin color, than to his speeches, the voluminous amounts of journalism noting his moderation, his two books which are, themselves, exercises in moderation, than you have chosen to be ignorant.

You are now being punished for that ignorance. No one should feel sorry for you. Try not being racist.

This whole "acting White" phenomenon is so ridiculous anyway. It's just a racialized stand-in for "I don't like nerds" or "I don't like squares". But of course, the race-element to it invests it with an extra historical punch. And when White people arrogate to themselves the right to determine who is and isn't authentically Black (and, in effect, tokenize the entire Black race as their pet revolutionaries) -- yeah, that's pretty racist.

Rep. Joe Walsh (R-Hamas)

Freshman Republican Representative Joe Walsh (R-IL) has introduced a resolution endorsing any Israeli annexation of the West Bank. In doing so, he explicitly promoted a "one state" solution to the Israeli/Palestinian conflict:

Walsh asserted that "there is no such thing as a two-state solution, and no such thing as land for peace. The ultimate peace is going to come through annexation, through Israel having sovereignity over the whole land, from the Mediterranean to Jordan."

Hamas could scarcely say it better. A one-state solution ends up with a huge Palestinian minority; likely an eventual Palestinian majority. At which point they vote to rename "Israel" "Palestine", abolish the state's Jewish character, and in all probability inaugurate all sorts of illiberal and discriminatory legislation against Jewish residents.

I've noted before that Walsh is no friend of Israel or the Jews. And here we see proof of that. Walsh is advocating nothing less than the end of Israel, the end of the Zionist dream of a Jewish democratic homeland. It renders him arguably the most overtly anti-Israel Congressman since Cynthia McKinney (D-GA), and the Jewish community should let him hear it.

The Unrepentant

A former St. Andrew's student convicted of racially abusing an Israeli classmate has been sentenced to a fine of 300 pounds payable to the victim and 150 hours of community service. He intends to appeal, but also had this to say about the student he abused:

“Mr Reitblat was an American studying over here so he’s from a rich family – I hope he gives the compensation to a good cause and doesn’t just fund his own greed.

Going straight back to the well with the "rich greedy Jew" trope I see. Well, at least he learned a valuable lesson.

(The victim actually is planning on donating the funds to victims of terrorist attacks in Israel).

Jewish Jihadists

Tablet Mag has a mesmerizing piece up about the young women who attend a radical settler school deep in the West Bank, where they are raised to be extremist warriors against any agent (Israeli, Arab, or otherwise) seeking to remove them from the area. The article does a good job capturing the raw religious fervor underlying the girls (albeit also eroticizing it in a more-than-a-little-creepy manner). It also makes quite clear the utter disdain these radicals have for Israel and the bulk of the Jewish people more generally. Though they consider themselves fighters for the Jewish people, they have no qualms about violently resisting the state of Israel (and proudly boast of attacking Arabs and their desire for "vengeance"). This love/hate relationship they hold towards the broader Jewish community -- seeing themselves as authentic representatives of the people while simultaneously viewing most of their religious compatriots with contempt -- is a quality they share with certain other, similarly marginal strains of the Jewish communal tent.

But the most important point is the way the girls and their teachers talk is virtually identical to how radical Islamist extremists speak. This is not surprising -- expected overlaps amongst fanatical religious extremists aside -- the young women at times explicitly hold out Arab terrorists as models, wondering why Jews can't be more like them (once again, folks I thought to be my enemy are apparently instead models to emulate). They mock traditional Jewish concerns for justice and repairing the world, in favor of a vision of theocratic autocracy imposed at the tip of a sword. They are, in effect, Jewish Jihadists.

What's the Downside?

The line on the upcoming NY-09 special election (triggered by the resignation of ex-Rep. Anthony Weiner (D)) is that Republican Bob Turner appears likely to score the sizable upset in this Democratic-leaning district. Turner has leveraged the anger some ancestrally Democratic but hawkish Jews (e.g., the Russian Jewish community) have towards President Obama's policies on Israel to pull into a small but noticeable lead as polls come to a close.

It certainly will be a feather in the GOP's cap if they win this race. But that's not what the post is about. Rather, it is about some last-minute mailers going out by Turner's allies attacking, once again, the proposed construction of an Islamic Center near Ground Zero.

Doug Mataconis, who says he probably wouldn't support the Democrat in this race, sees this and asks: "Do New York Republicans Really Want To Win An Election By Appealing To Religious Intolerance?"

Really? Do we even need to ask at this point?

Why wouldn't they? The tragic fact is that a significant portion of the American population doesn't think that Muslims should have the same rights as other religious groups to build Mosques. There is very little downside to latching on to it. If even the ADL is willing to join in the hit parade, why should Republicans feel skittish about it?

Refuse To Be Terrorized

It is the tenth anniversary of 9/11. There is a lot to reflect upon, most notably, the many thousands who lost their lives that day. It was a dark day for America, but also a day of courage, where brave men and women demonstrated that heroism and honor were well-represented amongst ordinary Americans who happened to be in New York, Washington, and onboard Flight 93.

How best to honor their memory? How best to defend against the scourge that killed them? Spencer Ackerman has it right: The best way to beat terrorism is to refuse to be terrorized. To stand firm and resolute and insure that not a thread of our constitutional fabric, not an inch of our democratic tradition, not a morsel of our civic values, are sacrificed at the terrorist's altar. That's how we win, and they lose. And that's how you honor American courage.

Just Why Do We Have Employment Discrimination Laws?

A provision in President Obama's proposed American Jobs Act would prohibit employers from discriminating against prospective employees on the grounds that they are currently unemployed. This is in response to reports that some companies are limiting job openings by explicitly turning away job-seekers who are not currently employed elsewhere.

In the Washington Post, Charles Lane takes aim at the proposal, with a hearty concurrence from Jonathan Adler. While I don't have a strong opinion yet on the provision itself (having just learned of it), I have to say I find Lane and Adler to be very unpersuasive critics. Both, in my view, give a short-shrift to the purposes that underlie employment discrimination law -- narrowing its ambition in ways that would not just obviate the need for an "unemployment discrimination" provision, but many other anti-discrimination provisions they claim to support.

Lane makes the case that for some firms in some cases, it is perfectly rational to discriminate on basis of immediate past employment history. For example, a company might prefer a candidate who is up to date on current trends in the industry versus one who would need time to get up to speed. Consequently, we should be reluctant to "assign malicious intent without a lot more specific information", and trust the market to punish firms that do discriminate in an inefficient manner.

Lane's argument could be (and sometimes is) used against all employment discrimination laws (if it's really irrelevant, the market will solve, otherwise, it's rational market choice and should be left alone). Adler at least makes an effort to preserve some of them by analogizing to racial discrimination, where, for much of our nation's history, a company who attempt to hire in a non-discriminatory fashion would be beset by boycotts, intimidation, and violence. Even though racial discrimination is inefficient and race is not relevant to job qualifications, it would persist because no company could break from the status quo and hire racial minorities without incurring huge costs. Employment discrimination laws are justified in such cases to solve a first mover problem (and, notably, companies would prefer such a law to be in place for that very reason).

The first problem with this distinction is that it probably doesn't apply today -- it seems unlikely that in 2011 a company which did hire Blacks would face a coordinated campaign of violence and intimidation as a result -- which means it is hard for Adler to avoid arguing that employment discrimination law as a whole has passed its prime and should be repealed (which maybe he does think, I don't know). But in any event, the second, larger problem is that it doesn't even touch on a different rationale behind employment discrimination laws: that certain sorts of appraisals should be restricted even where they're arguably relevant, either because they're morally inappropriate or because we believe whatever efficiency gains might exist from a free market system are outweighed by the damage done to the discriminated-against group member and general American values of inclusion.

The obvious example on this front is discrimination on basis of disability. One clearly can think of many cases where disability is relevant in an employment decision; and far more where it is isn't so clearly irrelevant so as to demand an inference of "malicious intent". Nonetheless, we bar it anyhow, both because we think the harms it imposes upon the disabled outweigh whatever efficiency gains would manifest from an open market, and because we've made an assessment that such discrimination is morally suspect as a general rule. The ADA, of course, has not been an economic catastrophe -- whatever economic losses it has created by barring "efficient" discrimination we appear happy to absorb as a cost for a more inclusive American society.* Meanwhile, we don't have the ADA because we think employers are malicious -- this is the misleading strawman that tells us that for their to be discrimination, there must be some villain cackling about how much he hates minorities. Not at all -- we often have anti-discrimination laws not because there are evildoers who need to be warded off, but rather because there is a maldistribution of opportunity in our society that we view as unfair.

Now, one element of disability discrimination law (indeed, most employment discrimination provisions -- race is a notable exception) is that if an employer actually can prove that the disability is relevant to bona fide occupational qualification (BFOQ), then that is a valid affirmative defense. So we don't even ban this sort of "efficient discrimination", we just force employers to back it up. This defense apparently is incorporated into the proposed unemployment discrimination provision. Indeed, it appears that provision is stricter still -- barring such discrimination only when it was the sole rationale for the employer decision (thus giving a pass to "mixed motive" cases, where employment status was one reason among others for the employer's decision).

Lane recognizes these caveats but darkly warns that they'll be "endlessly litigated before settled case law emerged" and thus will act as a deterrent to company hiring (Adler concurs). This is unlikely: as noted, the provisions parallel already extant statutory rules in Title VII. Far from being a judicial blank slate, it overlays itself upon anti-discrimination rules that are quite settled and well-known to HR professionals -- they stand out only in that they track the weakest threads of contemporary anti-discrimination law. It would be difficult to imagine a new regulation that would be more easily absorbed by the business community. Adler's assumption that companies will simply avoid hiring people at all for fear of being sued under the new provision seems more than a little melodramatic.

* It is also possible that there is a separate sort of first mover problem being solved here, where it was irrational for any one firm to recalibrate itself to be inclusive towards the disabled but a net utility boost could come once we unlocked the potential of a hitherto underutilized segment of our society. One thing that I think capitalism does very well is that it is adaptable to varying sets of constraints: when a new restriction is imposed, firms don't throw up their hands and give up, they look for new ways to create wealth and utility consistent with the new regime.

Has the Fever Broke?

The situation in Egypt with respect to Israel has badly deteriorated, with Israeli diplomatic staff forced to evacuate after the embassy was attacked by a mob. As distressing as that scene was -- and it was -- it also appears to be non-representative of either the current Egyptian government or the leaders of the protest movement. Indeed, six stranded embassy staffers were rescued by a team of Egyptian commandos, and the Egyptian government has promised to prosecute those responsible for the attack.

Meanwhile, Bibi went out of his way to praise President Obama for his leadership during the crisis:

Netanyahu praised the United States for intervening with Egypt in order to rescue the Israelis. “I would like to express my gratitude to the President of the United States, Barack Obama. I asked for his help. This was a decisive and fateful moment. He said, ‘I will do everything I can.’ And so he did. He used every considerable means and influence of the United States to help us. We owe him a special measure of gratitude,” Netanyahu said.

That's the sort of language that, to me, is designed to extend beyond the proximate events and heal deeper wounds. If so, it is a welcome development and worth noting.

UPDATE: Speaking of fevers breaking, Turkey is backing off earlier threats to send in its navy in escort of new flotillas. Baby steps, people.

Retaliatory Measures

The Israeli foreign ministry is contemplating various retaliatory measures against Turkey after the latter expelled the Israeli ambassador, cut military ties, and is threatening to provide military escort to any new flotilla seeking to break Israel's blockade of Gaza. It's typical Lieberman fare: pugnacious, probably counterproductive, and forcing the Prime Minister's office to distance itself. The main highlights are beginning cooperation with the PKK (a Kurdish terrorist organization working to establish an independent Kurdish state in Southeast Turkey), including potential weapons sales, and flooding the UN with complaints about Turkey's treatment of minorities (such as the Kurds).

I'm obviously not wild about supplying weapons to a recognized terrorist organization. But I will admit to finding ironically appealing sending a convey to southeast Turkey filled with Kurdish-language instruction books and other educational materials geared towards the Kurdish people. Totally non-violent "solidarity" measures, but I guarantee Turkey would flip out (Kurdish language and culture is heavily suppressed by the Turkish government). And hey, if we're talking about supporting national self-determination for local populations under the heel of another power, well, what's good for the goose....

As for the human rights complaints, both Israel and Turkey long have a habit of using such proclamations as proxies for diplomatic conflicts (see, e.g., declarations regarding the Armenia genocide). Still, it's not as if there aren't serious points of concern that deserve public airing: For example, the Turkish prime minister threatened to expel 100,000 undocumented ethnic Armenians if resolutions regarding said genocide were passed (ironic, no?).

On the other hand, there is no reason to think that UN human rights bodies will give Turkey anything but a clean bill of health no matter how serious its violations are. After all, countries in the UNHRC's good graces can get away with quite a bit: Sri Lanka earned laudations for its actions against the Tamils in the midst of killing up to 1,000 civilians a day. There is no reason to think that the UN holds any particular interest in holding Turkey accountable for wrongdoing, and it will be particularly resistant to doing so when it seen as acting on Israel's instigation, so it is not clear what any Israeli complaints would accomplish.

How It'll Go

My girlfriend told me that the early response to Obama's speech from various pundit-types was positive. She was optimistic. I, on the other hand, forwarded this account of what we could expect:

Day 1: Media tells us that Obama's speech was decent, relatively noncontroversial fare -- focusing on bipartisan solutions which have a history of support from both parties.

Day 2: Republicans claim that they've never heard anything more radical in their entire lives, and that basically we're witnessing the rebirth of Maoism combined with Nazism.

Day 3: "Is Obama's jobs plan fascist? The controversy brews!"

Cite as precedent: The individual mandate, "based on 1967 borders".

There's Always Someone

When various rabble-rousers in Egypt were agitating to annul the peace treaty with Israel, I remarked somewhat smugly that "reputation for rabid warmongering aside, there is no political constituency of note in Israel that has called for a repudiation of peace with Egypt. It seems that once Israel makes a final agreement with one of its neighbors, it is capable of keeping it with little fuss from its citizens' end." So of course I read an Israeli editorial in Ynet that proposes doing just that. Because Lord knows if Israel didn't have its share of morons it would just be too easy.

Fortunately, it does seem like this guy is quite the marginal figure -- there remains "no political constituency of note" making this call that I've seen. And even in Egypt, the claim that there is some groundswell support for annulling the treaty is also badly overstated (the "million man march" that was planned to press for canceling the treaty drew terribly). But still, it's just so, so annoying.

Clarification: We're Dumb

I love it when newspapers issue "clarifications" regarding statements that were actually just flagrantly false. Here's USA Today, "clarifying" that a pay raise "could very well bump you into the next tax bracket, possibly leaving you with less money." As Jon Chait notes, there is no situation where a pay raise could leave you with less money due to increased taxes, because our tax system is graduated. Worse yet, the column was entitled "math tips". Come on, people -- even I can get this.

Spy Games

I remember being quite blase when a story broke about Israel spying on the US. I just didn't find it that shocking. Nations -- even friendly nations -- don't take each other at their word. They spy on each other. It didn't surprise me that Israel spies on us, and I'd be shocked if we don't spy on Israel.

And it turns out we do! Again, nothing shocking here. If anything, the most interesting twist is that the leaker was an Israeli Jew working for the FBI on contract, who was worried about what he perceived to be Israel's overly aggressive tendencies (he gave the info he intercepted to a left-wing Jewish blogger). It's such a delicious inversion of the trope that Jews can't be trusted to put American interests over Israeli ones.

Hell's Kitchen All-Stars: Heroes and Villains

Another episode of Hell's Kitchen, another day where Elise is still in the kitchen. Alas. But I did enjoy getting to see some of my old favorites make a return -- indeed, I'd have liked to hear more about where they are now. I admit to not being the biggest Trev fan, but I adore Jillian, Tennille, and even Van (Season 6 was the first one I saw, so it has a special place in my heart). And as for Ben, well, he was the recipient of one of the coldest Chef Ramsey remarks in the show's history (he pulled Ben aside and whispered in his ear "I want you out."), but I guess that didn't do any permanent damage.

Anyway, someone speculated that this episode was a dry run for a potential "Hell's Kitchen All-Stars". Which is an awesome idea on its own. But what would be even awesomer would be to make it into a "heroes versus villains" affair. Two teams of eight, one composed of fan favorites, the other, famous HK antagonists.

So below is my roster for Hell's Kitchen All-Stars: Heroes and Villains. All participants had to at least make the black jackets, but not win, in their respective seasons. Beyond that, it's a purely subjective assessment on my part. So, without further delay....

Heroes

Ralph (Season #1, Second Place)
Julia (Season #3, Fourth Place)
Petrozza (Season #4, Second Place)
Paula (Season #5, Second Place)
Ariel (Season #6, Third Place)
Tennille (Season #6, Fourth Place)
Jillian (Season #8, Third Place)
Will/Jennifer (Season #9, ??? Place -- obviously, one of them won't win, and while I'll be shocked if Will doesn't win this season, I can't just assume it).

Villains

Sara (Season #2, Fourth Place)
Jen (Season #3, Third Place)
Corey (Season #4, Third Place)
Suzanne (Season #6, Fifth Place)
Benjamin (Season #7, Third Place)
Russell (Season #8, Second Place)
Sabrina (Season #8, Sixth Place)
Elise (Season #9, ??? Place, but apparently she doesn't win).

What do you think?

Going Proactive?

In the Jerusalem Post, Dana Gordon makes the argument that Israel should get out in front of Palestine's statehood bid by submitting a statehood proposal of its own, with terms that include the necessary protections Israel needs as part of a final resolution of the conflict. This, Gordon argues, would be a "proactive" move by Israel that would allow it to recapture the terms of the debate and stem the international sentiment that it is the primary obstructionist towards peaceful resolution of the conflict.

I do think this is a decent idea, but I also think Gordon oversells it. First, Israel is not "strong now". Israel currently has a historically -- almost comically (were it not also so tragic) -- weak government that almost certainly could not launch a bold stroke like this on such a short timeframe. Second, Gordon is considerably more confident than I that a rejection by Palestinians and their allies would be considered a reflection upon them. Why? The counterargument is easy -- that Israeli demands were unreasonable or illegitimate, and that Palestinians had every right to reject them in favor of more favorable terms -- terms which would come up for a vote several weeks later when the Palestinian proposal came up. It might muddy the waters a bit, but to cast it as some sort of unstoppable move of moral jujitsu is wildly off the mark.

What the proposal does have in its favor is that, in its roundabout way, it effectively restores a situation of bilateral negotiations between Israel and Palestine. Israel and Palestine would both be putting their terms on the table, and would know where the other stands. The fact that both plans would be subjected to a UNGA vote would almost be a side theater. I care about as much what the U.N. General Assembly says about the Israeli/Palestinian conflict as I do what the Dixiecrat Party has to say about the NAACP. But ignore them. The idea of putting parameters on the table is meaningful, and in that sense I think it is important for Israel to become "proactive" again.

Turkey Ups the Ante Again

After expelling Israel's ambassador, now Turkey is apparently going to send naval escorts to ships trying to break the blockade of Gaza. This, of course, puts them on a military crash course with Israel.

Just so everyone is clear: as a matter of international law, one of the requirements for a blockade to be legal is that it has to be effective. That is to say, the blockade must actually work in stopping all or most shipping into the blockaded area. So, to the extent Israel wants to maintain its blockade, it has to stop all ships trying to breach it -- including those under Turkish military guard.

Meanwhile, Turkey also is promising to take the matter of Israel's blockade to the ICJ. If I were Turkey, and I was set on the course of escalation that they seem to be pursuing, this is exactly what I'd do too. Part of what makes the Palmer Report so notable is its rarity -- a relatively decisive victory for Israel in the international arena. It is a case of Turkey losing a bet where the odds were strongly in their favor. So if I'm them, why not return to the table? The ICJ has not been historically friendly territory for Israel (and in particular, like the UNHRC, it tends to play fast and loose with proportionality claims). If Turkey floods the zone with enough authoritative-sounding international legal opinions, the Palmer Report will become an anomaly and easily dismissed.

But of course, this sort of escalation is dangerous -- even Ban Ki-Moon can sense it. We're getting past the point where this is mere posturing. It is difficult to overstate just how wildly irresponsibly Turkey is behaving. You won't find a more fervent critic of the Israeli foreign ministry than I, but in this case they've made reasonable efforts at rapprochement that Turkey has rejected over and over again. The match is being held to the fuse, and Turkey seems bent on setting the whole region alight.

Sore Losers

In the wake of a comprehensive UN report which largely, though of course not entirely, vindicated Israel's conduct with respect to the Gaza blockade and the flotilla incident, Turkey has expelled the Israeli ambassador. It also announced that it considered the Palmer Report "null and void", which makes sense, as the report sided with Israel over Turkey on most of the key points and its recommendations for reconciliation (a statement of regret) were considerably closer in line with what Israel had offered than what Turkey had been willing to accept.

Turkey has a habit of being more than a little childish in the international arena, so I can't say I'm surprised that their response to a major defeat in the UN is to simply announce that they're ignoring it. Well, let me be a little more charitable: most UN states ignore UN recommendations that go against their interests or conduct, and I can hardly fault them for doing so given that the bodies in question generally lack basic credibility. What makes Turkey unique isn't that it is rejecting a report that went against them; what makes them unique is their utter unwillingness to negotiate in good faith. They weren't looking for a route towards rapprochement, they were looking for a path towards escalation. There were loads of ways Turkey could have indicated its dissatisfaction with the Palmer Report that didn't entail expelling the ambassador of a friendly nation. As is per usual, it isn't Israel who decided to up the diplomatic ante with its neighbors. Turkey made a conscious decision that it wanted to turn a fissure into a chasm, and it acted accordingly.

Palmer Report Largely Vindicates Blockade

The United Nation's long-awaited Palmer Report on the Gaza flotilla incident has now been released, and, from Israel's perspective it has to be seen as a major win. The committee firmly decides that the blockade is legal and notes that an essential element of a legal element is that it has to be enforced consistently (which means intercepting folks trying to breach it, and can entail forcibly boarding resisting vessels). It also notes that the the Israeli soldiers who boarded the Mavi Marmara did face violent resistance. The committee does believe that Israel used excessive force in boarding the vessel and in not pursuing more non-violent interception techniques prior to its forcible boarding action. Statements from the Israeli and Turkish representatives to the commission appended at the end are revealing: the Israeli representative quibbles with the excessive force findings, but the Turkish representative is forced to disassociate himself from virtually the entire document.

I think the committee report is generally solid. It's analysis on the overall legality of the blockade is unquestionably superior to that forwarded by the UNHRC's report, which (and this is true regardless of one's ultimate perspective on the conflict) was frankly an embarrassment to the legal profession (how one even tries to undertake a proportionality analysis without even mentioning the objective in question, see paras. 51-61, compare Palmer Report pp. 38-45, is a mystery). So that's good.

Of course, I remain exceptionally dubious of the utility of these reports or the international law frame at all. The Palmer Report had been delayed several times because everyone believed it would only hurt rapprochement efforts between Israel and Turkey (Turkey is hell-bent on a full apology and an end to the blockade, which Israel is far less likely to do now that a high-profile commission has deemed the blockade legal and vindicated many, albeit not all, of its actions). Folks opposed to Israel's actions will simply cite the UNHRC report instead. Israel knows that, which limits whatever benefits it might reap from citing the Palmer Report. The conflict is political, and will be resolved politically. Whatever formal authority the Palmer Report has (and I'm not sure it has much anyway), formalism is not and should not be the primary lens for examining the issues in this controversy.

UPDATE: This older post by Kevin Jon Heller offers a good foil for some of what I'm trying to say here. Unlike the UNHRC opinion, Professor Heller provides a solid, well-reasoned argument for why the blockade is illegal (which isn't to say I'm necessarily persuaded by it; indeed, Professor Heller is admirably forthright about his uncertainty on the question). Professor Heller's basic claim is that the conflict between Israel and Hamas is not of an international character, and that international law does not contemplate the use of blockades in non-international conflicts.

The Palmer Report considers and rejects that point, instead holding that the conflict between Israel and Gaza is, for all intents and purposes, "international" for the purpose of the law governing blockades:

The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles in Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside territory. In this context, the debate on Gaza's status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others. (p. 41, para. 73)

This sort of analysis appeals to my legal pragmatist streak generally. And specifically with it is hard to argue against the Palmer Report's conclusion that the conflict bears the "trappings" of an international one in terms of actually describing the hostilities between Israel and Gaza. Even to the extent he's right, Professor Heller's analysis is another example of formalism and categories triumphing over descriptive and normative realities. That's not a strike against Professor Heller -- he's doing what lawyers do. And perhaps in a world where international law was a stronger force and it didn't seem like all aspects of the Israeli/Palestinian conflict were treated as sui generis anyway, it might be more important to rely on staid legalisms (though I'm not sure why participants in non-international conflicts should never be allowed to resort to blockades anyway. Their omission seems more a function of the rarity of situations where one would make sense -- Israel/Palestine really being "unique" in this regard -- than the result of some normatively sensible distinction). But that isn't our world, and in the world we live in, the Palmer approach seems far, far more reasonable.

It's the Traditional Jewish Pronunciation

Mitt Romney thinks the reason Michele Bachmann is outpacing him amongst GOP Jewish donors is that they believe Bachmann is Jewish. Right. Because while many would be fooled by her constant invocations of evangelical Christianity, true Jews know that the "ch" in "chutzpah" is pronounced as in "chutney".

Are Liberals Slanted Towards the Media?

The Volokh Conspiracy currently is hosting Timothy Groseclose, author of a book purporting to quantify liberal bias in the media. Basically, what he does is attempt to measure by "objective" (I'm going to problematize that below) criteria, how liberal or conservative a given media outlet is, then compare it to a perfectly "centrist" position. The upshot is that the media, under Groseclose's analysis, leans left -- excepting some niche conservative publications (like The Washington Times).

Groseclose provides three different metrics by which one could "objectively" measure the relative bias of media outlets. The first is with reference to think tanks, the second talks about "loaded phrases" (like "death tax" versus "estate tax"), and the third looks at the mention of "equally true facts", one liberal-leaning, one conservative-leaning. The media "scores" on this are then compared to a normalized ranking of Senators and Congressmen, so, we could say, the way The New York Times uses these think tanks, phrases, and facts, is most closely akin to that of Sen. Joe Lieberman (I-CT).

This sort of empirical analysis isn't really my area, but even I spotted some problems (actually, while running a google search for this post, I discovered I spotted some problems with the book's predecessor article in the first month of this blog. Ah, the memories). First, there are some question design aspects that worried me when I took my own "PQ" quiz (it labeled me as liberal -- which is absolutely accurate -- but I have no idea why the questions informed me how Democrats and Republicans voted except to push the data to extremes). Second, I don't think the metric disaggregates enough: my own line is that the media is socially liberal, economically moderate, and hawkish on foreign policy, and that hypothesis isn't really examined.

But the most gaping one is that it doesn't tell us who is leaning towards whom. A relative affinity between what think tanks the media cites, and what think tanks a Democratic Senator cites, may show the media is biased towards liberals. But it could equally show that liberals are more likely to cite independent, dependable think tanks of the sort relied upon by the media. In other words, we can use politicians as independent variables and use them to judge the media. Or we can use the media as an independent variable and use it to judge the politicians. Groseclose's methodology doesn't have us distinguish.

And there's a solid case to be made that the latter is a better explanation. Take Groseclose's own example on the "loaded phrases" front: "death tax" versus "estate tax". Republicans tend to use the former, Democrats the latter. Hence, under Groseclose's methodology, if the media tends to use the latter, it is exhibiting liberal bias. But another explanation is simply that "estate tax" is considered the more neutral, explanatory term, which is why the media uses it. "Estate tax" is, in fact, not loaded in the way that "death tax" is (or something like "plutocrat tax" would be). Practitioners don't talk about the "death tax", they talk about the estate tax. "Estate tax" is the name of the term in U.S. tax code dating back to 1916, "death taxes" refer to something else entirely. The term "death tax" didn't gain any mainstream traction until the Gingrich speakership, when it was part of a specific effort to muster up voter anger against the "estate tax".

Given all that, it makes perfect sense for the media to favor "estate tax" over "death tax". Groseclose's methodology would have us adopt the absurd conclusion that, because both the media and liberals (but not conservatives) refer to the estate tax by its historical and official name, that's a problem with the media's objectivity. One could hardly impoverish the meaning of "media objectivity" more if one tried.

What is most weird about Groseclose's methodology is that, for all its protestations of scientific rigor, it is really dependent on a very blunt sort of relativism. The methods he use only make sense if one effectively believes there is no way of determining which think tanks or more reliable or less reliable, which phrases are neutral and which ones are inciting, which facts are salient and which are irrelevant. Why not? Well, probably because the most obvious way of measuring that would be with reference to how a supposedly neutral arbiter, like the media, and then instead of concluding that there exists a liberal media bias, we instead conclude that, as the saying goes, "reality has a well-known liberal bias."

But if we dispense with the notion that we can evaluate the neutrality of various phrases or researchers on their merits, then it's all politics -- liberal ideas and conservative ideas, liberal phrases and conservative phrases, liberal facts and conservative facts. And the media tends to align itself with the liberals. If there's no truth behind it, then that's no strike against the right. It just marks the media as an adversary.

Again with the Formalist Worries

The forthcoming UN General Assembly vote on admitting Palestine as a state is perhaps the highest profile example of the Netanyahu administration's catastrophic failure at managing both Israel's perception abroad and crafting any sort of progress on resolving the Israeli/Palestinian conflict at home. To be sure, at this stage in the game, there is little any Israeli government could do to stop the vote (though the American threat to slash aid to Palestine might). But this is not something that came up out of nowhere -- it is the upshot of months of blunders and unforced errors by the Keystone Cops which comprise the current Israeli cabinet. I cannot think of an Israeli government in my lifetime which has done more damage to the state of Israel than this one.

But anyway. One of the more 7-dimensional chess worries to emerge from the statehood vote was claims by Palestinian legal adviser Guy Goodwin Gil that the statehood vote could imperil various claims made by Palestinians who do not currently reside in the West Bank or Gaza (the "diaspora", so to speak). In essence, the current state of affairs has the PLO as the recognized representative of the Palestinian people (wherever they live). "Palestine", as a state, would take over that role in the United Nations. The problem, though, is that the state of Palestine has little basis for claiming the right to represent Palestinians who aren't inside its borders (and, to the extent it wants to push for a "right of return" to Israel proper, Palestinians who have no desire to move inside its borders).

Another Palestinian legal adviser, my Illinois colleague (though we have not yet met) Francis Boyle, argues that these worries will not come to pass. His reasons are a little vague, but no matter -- I suspect he is correct. But the reasons why have nothing to do with "all the legal and constitutional technicalities that were originally built into the Palestinian Declaration of Independence," or, for that matter, technicalities in international law.

For starters, it is hardly unknown for states to maintain concern about the status and rights of people -- even non-citizens -- outside their borders that the state nonetheless possesses an affinity towards. Mexico, for example, cares quite a bit about the rights of Chicana/os in the United States -- including those who are United States citizens. That is part and parcel of having nation-states in the first place where, in addition to (hopefully) promising some sort of open, liberal political order, states also hold themselves out as the homeland of Mexicans or the Irish or Jews or Palestinians.

But more importantly, the entire debate relies on formal notions of the structure of international law and the effect international legal machinations of which I'm dubious exert any strong force. Relying on formal rules of international law to exert any constraining force on what international law is said to be in politically "hot" conflicts is almost invariably a mistake. To the contrary, the international legal system is overwhelmingly results-oriented, and in particularly it fervently desires results that redound to the benefit of Palestinians (and to the disadvantage of Israelis). To the extent there might be precedents which seem to imperil a given Palestinian interest, they'll be modified accordingly or cast aside. In the worst case, an entirely sui generis regime will be carved out to accommodate the dissonance (see, e.g., the UNRWA).

To be honest, though, in a sense this is how it should be. Not the part about international law being entirely results-oriented (though honestly, I'm mostly an international law skeptic even conceptually at this point -- it is not a system I think presents a particularly prime candidate for meaningful reform, so I prefer not to try). But the various claims of Israelis and Palestinians shouldn't be extinguished by technocratic reshuffling of categories, and it bothers me how often people try to play this game. One sees it with respect to Jews when folks alternatively label them a "religion", "race", or "ethnicity" depending on which one best defeats any particular Jewish political claim. The idea that the category system might not map onto the territory -- might simply be inadequate to encompass the Jewish experience and respond to just Jewish political claims -- is pushed aside as Jews are forced into a legalistic game whose rules, at best, we didn't write and at worst were written precisely to maintain Jewish subjugation.

And that's silly. I'm no fan of a Palestinian right of return, and everybody knows that it will not be a part of any final peace agreement except perhaps as some limited symbolism. But that end is and should flow out of a negotiated settlement -- it should not be the result of some legalistic trap.

Some Million

While understanding why Israelis might justifiably be nervous about the new government in Cairo, I've always been dubious that Egypt actually was going to repudiate its peace treaty with Israel. First, the minds of most Egyptians are primarily on other things right now. Second, one generally doesn't repudiate a peace treaty unless one is willing to go to war (otherwise, what's the point?), and I don't think the Egyptian people are in any mood for an actual full-blown armed conflict, nor do I imagine the Egyptian military is currently prepared to engage in such hostilities even if the populace were. Finally, and not insignificantly, there is massive international pressure against Egypt repudiating its peace agreement with Israel -- meaning that the Egyptian government won't take that step without some very strong reason (be it irresistible domestic pressure or provocation or what have you).

But one always can worry (and I do think it is notable that, reputation for rabid warmongering aside, there is no political constituency of note in Israel that has called for a repudiation of peace with Egypt. It seems that once Israel makes a final agreement with one of its neighbors, it is capable of keeping it with little fuss from its citizens' end). So I was gratified to find out that the planned "million man march" in Cairo calling for an end to peace with Israel apparently only attracted a few bare hundreds. This doesn't surprise me -- while I imagine the Egyptian street is probably rather cool towards Israel, I also, to reiterate, think they're mostly concerned about other issues right now, and are not keen on reverting back to old patterns where mad gesticulations towards Israel are used to distract them from necessary reforms at home. There, now, that playbook isn't going to fly.

The Difference Between Winning and Not Losing

Caroline Glick has a whiny column up blaming the Israeli media for sabotaging "American media superstar" Glenn Beck's trip through Israel. Her breathless account of Beck's boundless influence ("His calls for action are answered by hundreds of thousands of people. His statements are a guidepost for millions of Americans. Aside from radio host Rush Limbaugh, no media personality in the US has such influence.") manages to omit the fact that he got himself axed from Fox for being just too crazy. But whatever -- Glick is of the persuasion that the vast majority of Israel's "friends" are really enemies, and that the only friends worth having are the one's that cheer alongside whatever policy Avigdor Lieberman bumbles into next (Tzipi Livni, in Glick's telling, is clearly not among Israel's friends). What Israel needs, she said, is for folks to "empower it to defeat its enemies and to stand up to an increasingly hostile world."

Glick's ideological blinders are doing more than deluding her into thinking that Glenn Beck is anything but a deranged nutjob. It also is causing her to seriously misappraise Israel's security situation. Israel can't win its battle by military force. It can lose it that way, to be sure. And that's important to remember. Losing is bad, and the sort of losing we're talking about -- where the state gets wiped off the map and Jewish communal self-determination is extinguished -- would be exceptionally bad. That's why you won't see me get behind notions of throwing up an arms boycott against Israel. We're talking about a country that has been at war a half dozen times in barely 60 years of existence, that is still technically in a state of war with two of its immediate neighbors, that has another regional power promisng to "eradicate" it ... I could go on. Given that, I fully subscribe to the notion that Israel needs an armed forces able to, paraphrasing Sergeant Johnson, "blow up any son-of-a-bitch dumb enough" to try and mess them up.

But that's simply a case of "not losing". Successfully not being destroyed is certainly important, but it's not the end goal. The end goal is for Israel to not have to fight such wars. It's for Israel to be a recognized part of the region, stable and secure as a Jewish, democratic state. And that's something that force can't accomplish. Force can defend against hostile action, but it can't stop hostile sentiment. Force can respond to military incursions, but it can't stop demographic realities. Force can defend democratic institutions, but it can't create universal suffrage. All of these things have to be resolved with political courage, not military might.

These political reforms and negotiations and compromises -- jumping into an unknown future in the hopes that former enemies can become peaceful neighbors -- can be frightening. They are risks. Luckily, Glick and Beck are correct that there exists against many Israelis an incredible reserve of courage that often has been called upon to make these deals. It is just a shame that Glick and Beck seem not to have kept any for themselves.

Criticize This!

A St. Andrews University student was expelled, and convicted under a racial abuse statute, after placing his hands in his trousers, grabbing his genitals, then rubbing it over an Israeli flag a fellow student had in his own room. The student also allegedly made remarks to the effect that Jews had no claim on the state of Israel and that the student was a "terrorist". Another student was acquitted of the criminal charges, but an internal university investigation suspended him for a year.

O'Malley Renews the Push

After Maryland came tantalizing close to instituting marriage equality this past year, Governor Martin O'Malley (D) is gearing up for a renewed push.

It's unclear how, if at all, the political dynamic has changed in Annapolis. O'Malley has some boilerplate about how the trendlines are in our favor (and they are), but there's no word on movement by any particular state legislator. Of course, the bill really just failed to pass last time, so even assuming no change we're still in toss-up territory.

I have to add my kudos to Governor O'Malley, who is starting to demonstrate real leadership on the issue. It isn't just "if it passes, I'm willing to sign it" -- he's made it known that he completely and unambiguously supports the legislation, and thinks it should pass. So good for him. And hopefully, this time Maryland will indeed do the right thing.

A War They Can Get Onboard With

Lauren Booth is a journalist for Iran's Press TV and a pro-Palestinian activist (in much the same way that the Kach Party consists of "pro-Israel activists"). She's mostly known for being the half-sister-in-law of Tony Blair. Like many folks of her particular political bent, she is affiliated with various putatively "anti-war" groups: Stop the War Coalition, Media Workers Against the War, etc..

But let it never be said she's not a pragmatist about it. For Lauren Booth appears to have found a war she can support: Urging Israel's Arab neighbors to attack it (again):

It is time, Brothers and Sisters, for Al Quds to be liberated. For Islam and people of the world who wish to pray there to the one God. And we say here today to you Israel, we see your crimes and we loathe your crimes. And to us your nation does not exist, because it is a criminal injustice against humanity. We want to see Lebanon, Jordan and Egypt go to the borders and stop this now. Liberate Al Quds! March to Al Quds!

If asking Lebanon, Jordan, and Egypt to "march to [Jerusalem]" (Al Quds is the Arabic name for Jerusalem) isn't simply a pro-war rallying cry, I don't know what is. Other speakers clarified that, yes, they were talking about sending in the army:

You can’t take an army, which is a nation’s army, a terrorist nation’s army, and defeat it with sincere small fighters. It needs some of those states around to release their armies to burn that land and then that region will see peace like it had in the past. Because the only time that land has seen peace between Muslim, Christian and Jew living side by side was when sincere Islamic rulers ruled with justice.

The point is that the "anti-war" commitments of folks like Booth extend precisely as far as their realization that sometimes war has the salutary impact of killing Israeli Jews.

Want a Broader Tax Base? Reduce Income Inequality

The current tax orthodoxy amongst congressional Republicans has been simple: no more taxes, period. But some Republican presidential contenders realize that's unsustainable. And they've finally hit on a tax increase they can support: raising taxes on the bottom 50% of American workers. The language is "broadening the tax base", and the argument is that these are Americans who pay no income tax at all (though of course they pay other taxes, such as social security and sales taxes), because their incomes fall below the minimum required to trigger tax liability.

Libertarian blogger Radley Balko* concurs with those who find it worrisome that half the country pays nothing in income taxes. The problem, as he sees it, is that "an increasingly small percentage of earners fund the government, we’ll soon have a majority of people who pay no tax voting for more and more government services they benefit from, but don’t have to pay for." The reason we want to broaden the tax base is to ensure that everybody (or at least as many people as is feasible) have "skin in the game", that is, have an incentive to care about governmental expenditures.

The concern is legitimate, but it doesn't necessarily take us where Balko thinks it does. Let's put aside for the moment the fact that just because a majority of Americans don't pay income taxes doesn't actually mean that majority controls policy (both because of apportionment issues, and also because of structural concerns which disproportionately reduce the influence the bottom 50% have in political institutions). And also put aside the fact that taxation is not the only way that one can have "skin in the game" -- poorer Americans are more likely to be dependent on governmental services for the provision of basic needs, and thus have every reason to care about the efficacy of such services (Balko's main concern is less effected by this, because his primary worry is that government will do more, not that it will do what it does poorly -- though he suspects it will).

That fifty percent of Americans don't pay income tax is not because our tax code is set up to say "the poorest half of Americans pay nothing". Rather, the income tax system simply decrees that people who make below a certain threshold pay nothing income taxes, presumably because we feel that taking money away from people who earn that little represents too much of a hardship. And, as income inequality continues to skyrocket, the number of people who fall below that demarcation is now hovering around 50%.

But if we started seeing rising wages and earnings amongst the working class, that number would drop as more Americans earn enough to join the ranks of taxpayers. In other words, to the extent conservatives are really concerned that as many people as possible have "skin in the game", the current income tax structure in turn gives conservatives an incentive to care about an issue important to liberals: income inequality. One can broaden the tax base by taking more away from the already-poor. But it seems the better option is to broaden the income tax base by broadening the income base -- rendering fewer people poor in the first place.

And aside from the fact that this is simply more humane -- there is a threshold level of income below which we don't think a family is earning enough to support itself to a standard commensurate with our status as the greatest country in the world -- I think the incentive question cuts in its favor as well. I already explained above that the poor already have lots of incentives to care about how government works, and, regardless, it's far cheaper to incentivize them to act anyway. By contrast, there are very few notable points of leverage society has on the rich to get them to care about the living standards of the poor. To the extent that they are genuinely concerned over an emergent democratic majority which pays no taxes (to be honest, I'm dubious that they're actually that concerned), that's a very rare opportunity to make a trade.

* I want to say that, while obviously I strongly disagree with Balko on issues such as this, I have a lot of respect for him as a libertarian who actually puts his money where his mouth is -- he devotes as much if not more attention to aspects of governmental power which harm the poor and marginalized as he does to decrying regulations which hurt primarily the rich and powerful. His work on police brutality and the death penalty, in particular, has been stellar and admirable.

The End May Be Nigh in Libya

If there is one name I trust for useful, clear-eyed, non-biased descriptive evaluations of what is going in a military conflict, it's Robert Farley of LGM (see, e.g., his early appraisal of Cast Lead, which I drew on heavily). What makes him distinct from so many other commentators is that he doesn't seem tied to a particular normative agenda regarding warfare -- he's neither a gun-toting neoconservative cheerleader, nor a reflexive anti-war peace protestor. That doesn't mean he doesn't have normative opinions, only that when he gives his predictions, I feel comfortable he's not molding them to craft a narrative either in support or against "war" as a concept.

Anyway, in that vein his thoughts on where Libya seems to be headed are well worth reading. Of particular interest is the evaluation of the "Afghan model" of military intervention (special forces logistical support combined with air power used to support indigenous forces on the ground) which, he claims, may be vindicated in the military sense while showing its fragility in the political sense. Avoiding real boots on the ground didn't seem to stop any flack aimed Obama's way (which was much of the point). But it does look like the rebels will be victorious and, Farley argues, there are real benefits to it being the rebel forces themselves who are seen as toppling the regime (and had to work together to do so), rather than it being swept away by a Western expeditionary force.