Court Dismissed Case Based on Theory Behind Trump’s Executive Order on Antisemitism

As President Trump made waves with an executive order meant to stifle speech, action, and education that highlights Palestinian rights, a case that might have been affected by that very order was resolved in Massachusetts. The suit, brought by several anonymous students against the University of Massachusetts, Amherst, attempted to censure the university for hosting a panel that supported the movement for Boycott, Divestment, and Sanctions (BDS) against Israel and to establish that such events were inherently discriminatory and must be forbidden on campus.

The panel, which took place as scheduled on May 4, 2019, featured some of the country’s most outspoken supporters of Palestinian rights and progressive causes, including former Women’s March Co-Chair Linda Sarsour, Temple University Professor Marc Lamont Hill, musician Roger Waters, and Sports Editor for The Nation Magazine, Dave Zirin. All these people are fierce critics of Israeli policies from a progressive viewpoint.

The event, entitled, “Not Backing Down: Israel, Free Speech, and the Battle for Palestinian Rights,” was specifically designed to discuss efforts to stifle criticism of Israel, on campus and beyond. The suit itself, and the effort preceding it to force the cancellation of the event, couldn’t have demonstrated the need for that panel more clearly. Read more at Responsible Statecraft

A Poison Pill For AIPAC

Today, I’m asking my readers to please support the American Israel Public Affairs Committee (AIPAC). The group has been working hard on some new legislation and it’s really important to help get this bill to the floor of the Senate and the House.

According to a report in Buzzfeed, AIPAC has been working with congressional staff members for months on the bill, trying to find the formula for success. The bill would “…aim to prevent U.S. companies from participating in the (Boycott, Divestment and Sanctions against Israel) campaign without infringing on Americans’ First Amendment rights to political speech. It would also try to make the Transatlantic Trade and Investment Partnership being negotiated between the U.S. and E.U. conditional on whether the E.U. takes action to stop BDS.”

And how would they prevent US companies from participating in BDS? By “…authorizing states and local governments to divest from companies deemed to be participating in BDS,” and by denying “…federal contracts to such companies.” This bill should be at the top of the agenda for American activists in the United States who wish to see our country change its policies towards Israel and Palestine.

AIPAC hasn’t been doing very well of late. Their attempt to weasel a provision into another bill that would have allowed Israelis to enter the United States without a visa while Israel refused to make the same arrangement for US citizens raised a lot of hackles on Capitol Hill, even in some offices that are very AIPAC-friendly. The proposed provision was killed. AIPAC was unable to sway the Senate against the nomination of former Senator Chuck Hagel for Secretary of Defense. Nor has it been able to significantly impact the Obama administration’s efforts to reach an agreement with Iran on its nuclear program.

There have been a lot of failures lately, including the failure to get Congress to push hard for an attack on Syria last year. But this bill, if it ever reaches the floor, could be the biggest bust of all, with some serious ramifications for the powerful lobbying group.

Let’s just start with the First Amendment issues this raises. If this bill ever sees the light of day, AIPAC is going to try to convince people that it is similar to the laws passed forty years ago in response to the Arab League’s boycott of Israel. Put simply, it isn’t.

Those laws–the 1977 amendments to the Export Administration Act (EAA) and the Ribicoff Amendment to the 1976 Tax Reform Act (TRA)–were drawn up narrowly, to apply only in the case of abetting or cooperating with a boycott directed at Israel by other countries. The mentions of boycott “by a foreign nation” or similar words are so frequent that the meaning cannot be missed. This is no surprise, of course; Congress is loath to dictate to US businesses, and it is especially tricky where a national interest is not clearly and immediately at stake. So these laws were contrived so that they only barred supporting boycotts by foreign countries against Israel.

In the case of BDS, no government is running this program, not even the pseudo-governments of the Palestinian Territories. The Palestinian Authority (PA) has not endorsed boycotts of Israel and is, itself, completely incapable of boycotting Israeli goods and services. It is in most ways a captive market to Israel. Hamas has, frankly, paid little attention to such measures, though they have encouraged them rhetorically from time to time.

There is a call for BDS from Palestinian civil society, but that is not covered by the 1970s laws. Moreover, any law that would target BDS would need to be constructed in such a way so that it would not have made boycotts of Apartheid South Africa illegal. Those boycotts also came in response to a call from the African National Congress. If businesses could not engage in such activities, there would be great outrage.

So the Arab League boycott is moot as a basis for anti-BDS legislation. The right to boycott is also not limited by what the government decides is an acceptable boycott and what is not. People, and businesses, are free to choose with whom they will do business. Congress making such decisions violates the very essence of the First Amendment, and it is highly unlikely that such a law could pass as a result and, if it could, even less likely that it could withstand legal challenges.

The bit about the Transatlantic Trade and Investment Partnership (TTIP) is even more toxic. The point of TTIP is to make international trade between the United States and European Union easier, to reduce tariffs and lessen bureaucracy. The idea is to significantly improve the speed, and thus the volume and value, of trade between the two economic giants. Adding stipulations like ensuring that EU states are working against BDS is precisely what TTIP is designed to avoid. Whatever my own objections to TTIP (and they are many), it clearly holds great appeal for businesses on both sides of the Atlantic.

It is one thing for US citizens with influence in Washington to go along with the powerful lobbying forces defending Israel’s ability to act with impunity in the region; for the most part, that has not had a negative effect on trade. But this would be a very different matter. Now we are talking about AIPAC going up against powerful, domestic business interests. That is a whole new ballgame.

Even bringing the bill to the floor would demonstrate in a clearer way than ever before that AIPAC is willing to compromise US commercial interests and even one of the most cherished and basic freedoms the US prides itself on for the sake of Israeli interests.

Consider also that the overwhelming majority of boycott actions, divestment decisions and even popular proposals for sanctions against Israel have focused squarely on Israel’s occupation of the West Bank and Gaza. They have not targeted Israel as a whole, with the exception of some of the attempts at cultural and academic boycott. But these are not major concerns for Israel nor do they have the same impact potential as economic boycotts and divestment. So, the threat to free speech and to international trade that this bill represents would be demonstrably in the service of the settlement enterprise, the siege of Gaza and the occupation regime more generally. The mask would be off.

In reality, I very much doubt any such legislation is ever going to move forward, at least not from AIPAC. They know the problems as well as anyone and, while I don’t doubt that they are working constantly with their closest friends in Congress to see if something could work, I don’t think they’ll be successful. But if you want to see AIPAC suffer major damage, such a bill would do it. I can’t think of a better strategy to oppose AIPAC than to do everything we can to make sure this sort of doomed anti-BDS legislation hits the floor in Congress with a resounding thud.

On Bullying Pro-Palestinian Activists

In his speech at the University of Illinois at Urbana-Champaign, Professor Steven Salaita, who was “de-hired” by that school quite suddenly

Megan Marzec, who is facing death threats for calling out Israel's slaughter in Gaza

Megan Marzec, who is facing death threats for calling out Israel’s slaughter in Gaza

after the university’s chancellor faced strong pressure from major donors objecting to Salaita’s tweets about Israel’s massive military campaign in Gaza, issued this warning: “As the Center for Constitutional Rights and other groups have been tracking, this is part of a nationwide, concerted effort by wealthy and well-organized groups to attack pro-Palestinian students and faculty and silence their speech. This risks creating a Palestinian exception to the First Amendment and to academic freedom.”

At Ohio University, we recently saw the disturbing reality of the different treatment accorded to pro-Israel, as opposed to pro-Palestinian views which supports Salaita’s statement.

Of course, the treatment of Salaita is, itself, rock-solid evidence of this point. That is especially true since the university’s chancellor, Phyllis Wise, has backed off her initial claim that Salaita’s de-hire was caused not by his views but by the allegedly “uncivil” way he expressed them. She has since admitted that she faced pressure from influential figures around the university, i.e. major donors.

But a report today in Ha’aretz on an incident at Ohio University offers an even clearer view. The president of the student senate at OU, Megan Marzec, used the opportunity of taking the ALS Ice-bucket challenge to make a statement about Gaza. She wore a shirt that urged divestment from Israel, stated that the blood in her bucket (which was, of course, fake) represented the Palestinians that Israel had “murdered and displaced,” and dumped the bucket over her head.

The response from the organized Jewish community on the OU campus was swift and quite typical. Ha’aretz quotes the leader of a pro-Israel campus group, Becky Sebo: “Her video has kind of torn the campus apart. My initial response was complete shock. We’ve never had any BDS [boycott, divestment and sanctions] movement on our campus, have always had a very open, welcoming community.” Now, she said, “Jewish students in particular are feeling very singled out by the video. Many Jewish students are feeling concerned about their safety and how other students will respond to these accusations against Israel.”

This hyper-sensitivity represents a complete reversal of reality, among other things. There is not a single report of Jewish students being harassed, much less assaulted, as a result of Marzec’s video. But Marzec herself has drawn death threats and hate mail. So much so that Homeland Security has gotten involved on campus. Of course, the pro-Israel groups, no doubt quite sincerely, condemned and called for an end to such acts. But let us ask the question: who has legitimate reason to fear for their safety?

There are also other dimensions to this story. Consider the words of Oren Segal, director of the Anti-Defamation League’s (ADL) Center on Extremism. “The students who want to present a non-biased pro-Israel view have their work cut out for them because there are going to be a lot of efforts to delegitimize their point of view. I anticipate we’ll see more anti-Israel activities than ever before.”

Just read those words, and the thinking is revealed. “A non-biased pro-Israel view.” That is an obvious oxymoron. If the view is pro-Israel, or if it is pro-Palestinian, it is, by definition, biased. What Segal implies here is that any unbiased view would be pro-Israel and any other conclusion can only come about as the result of bias.

And then there’s this whole argument about “de-legitimizing,” whether it is about Israel or of points of view. The working definition of this “de-legitimization” seems to be centered around any argument against Israeli policies, against Zionism, or against any kind of support for the Palestinians. The point of debate, of argument, is to establish that your view has more merit than the opposing one. That should be encouraged (as, indeed, Jewish tradition does), not feared. And certainly, it must not be stamped down.

The shallow arguments get even better. The Director of the OU’s Hillel (a national Jewish student organization), Rabbi Danielle Leshaw, demonstrated just how far the so-called “pro-Israel community” has departed from Jewish traditions and more universal values of open discussion and debating difficult issues.

“Your video marginalizes and isolates students,” Leshaw wrote in an open letter to Marzec published in The Post. “It makes Jewish parents want to bring their kids back home to the safety of the Jewish suburbs …. you need to step down, and give somebody else the chance to lead our Ohio University student population. Somebody that won’t polarize, or divide, or marginalize, or ‘other,’ or cause hysteria, or make students feel unsafe.”

Leshaw, it must be noted, is far from a conservative voice, and she is, herself, no stranger to criticizing pro-Israel programs. She also strongly disagrees with Marzec’s view of the Israel-Palestine conflict. Her call for Marzec to resign as student senate president is “Not because of your politics, but because of your lack of awareness, compassion, and mostly, because of your lack of vision.”

Let’s unpack Rabbi Leshaw’s thinking. Just how does Marzec’s video “marginalize and isolate students?” She presents a political statement, at a time when the Israeli military was acting in so brutal a manner that even their American colleagues, who are themselves quite familiar with killing civilians, were shocked. One wonders: If someone had done the exact same video during Russia’s aggression against Chechnya 15 years ago, would anyone have been concerned that Russian students were marginalized and isolated? Of course not, mostly because they wouldn’t have been and because everyone would have been applauding the strong statements against the massive damage being done to civilians, and rightly so.

Marzec’s video, Rabbi Leshaw says, “…makes Jewish parents want to bring their kids back home to the safety of the Jewish suburbs?” That is a familiar and tired argument, one that got badly worn out during the battles for school integration and during the civil rights movement. Just substitute “White” for Jewish, and the sentence says the very same thing. It is irrational fear of the other, something that needs to be confronted, not accommodated.

Rabbi Leshaw also says that Megan’s video makes “alumni want to pull their funding.” I wonder if she thought about that complaint before putting it in her letter. An apparently liberal woman believes that donors should have the ability to stop students from making controversial political statements? Would she have said the same about protests against the Vietnam War or for women’s rights back in the 1960s and 70s? Because surely there were those alumni who took similar offense to bra-burning demonstrations back then. No, it is only opposition to Israeli policies that merits such kowtowing, I suspect.

Rabbi Leshaw also says that Megan’s video “makes people threaten” the university and its programs, a disturbing echo of Israel’s self-serving and unsellable (outside of the US and Israel, that is) claim that all those Palestinian deaths were Hamas’ fault. Defying such bullying is why Rabbi Leshaw thinks Marzec should step down, rather than seeing it for what it is: precisely the sort of action that a student leader must take if they are to ever be leaders for social change outside the university. The same would be true if this was a pro-Israel statement. Those who support Israel’s policies or feel they must defend Israel should also not give in to any attempts to intimidate them into silence. It is not the opinion that matters, and on that point, Rabbi Leshaw claims to agree. So would she have the same objections if the issue was not Israel? Given her professed values, it seems doubtful.

Megan Marzac sees the Israeli occupation and then the shockingly brutal onslaught on Gaza. She believes that these should be opposed and future incidents prevented, and believes that the global Boycott Divestment Sanctions (BDS) movement is the best way to achieve that. She lacks neither awareness nor compassion. Her statement was one of condemnation of repeated and ongoing human rights violations. That demonstrates considerable awareness and compassion, whether you agree with her views or not.

Is it Marzac’s lack of vision then? Well, it is fair to say that her identification as student senate president gives the impression that she was doing this with some sort of sanction from the senate, which apparently was not the case. That’s an error, but such a mistake is hardly grounds for her removal, especially since she subsequently made it clear that this was her own action.

In any case, the notion that strong support for the Palestinians and even harsh criticism of Israel is somehow threatening to Jews has to be challenged. It is a false accusation, but more importantly, it is one in a long list of bullying tactics that seek to silence support for the Palestinians on campus and more broadly, in the public discourse. Those tactics include attempts to legislate against boycotts of Israel (all of which have failed thus far), manipulating organizations by threatening their funding, harassing media outlets when they give space for pro-Palestinian views, and claiming victimhood when they themselves are the victimizer.

Megan Marzac did what student activists should do: she made a bold statement. The response from the allegedly pro-Israel community has been nothing short of the worst kind of bullying, even aside from the extremists who have threatened her with physical harm. Do these people believe that Israel’s case is so weak that it cannot withstand public debate? It seems so, but that is only true because they are making the wrong argument. They are working to make Israel an exception to international laws of war, and supporting Israel’s regular violation of Palestinian rights through Israel’s occupation regime (as thoroughly documented by many Israeli human rights groups like B’TselemYesh DinGisha and others). These so-called pro-Israel activists are trying to defend Israeli military actions that regularly kill far more civilians than combatants, leave infrastructure devastated and make already impoverished people even more desperate.

What if they tried making the honest case that what is really needed is, quite simply, equal rights for all and a homeland where Jews and Palestinians can flee to if they are facing persecution and where both peoples can express and live their national identity, in whatever political configuration? Maybe then they wouldn’t resort to bullying tactics because they’re so terrified of an honest, open discussion in the public arena.

Britain’s Troubled Media

I’m proud to announce that in today’s Souciant we have Emmanuel Stokes interviewing Glenn Greenwald. Please check it out, it will be worth your while.

My Article in The Forward

The Forward asked me to write a piece for them along the lines of the piece on Pam Geller and BDS which appeared in Souciant today. The two articles have both similarities and differences, so you should check out both. Can’t say I’m keen on the title, but it does reflect what I wrote.