Saturday, July 22, 2006

LIES MY PROFESSORS TOLD ME: THE MYTH OF THE ISRAEL LOBBY

“A great deal of intelligence can be invested in ignorance when the need for illusion is deep.”
-- Saul Bellow


Beneath Plymouth Rock, in the deep substratum of the American psyche, lies a mythic Jew. The Puritans lay the ground for it when they fled across the Atlantic to found a “New Zion.” They conceived their mission messianic, anointing themselves God’s “American Israel.” The “Judeo-Christian heritage” our politicians love to invoke then is no mere ceremonial. America owes its identity to Old Testament tropes and legend. As Edmund Wilson once wrote, “The Puritanism of New England was a kind of new Judaism, a Judaism transposed into Anglo-Saxon terms.”

A Jew-fixation runs accordingly through the American mind. But like everything American it assumes a peculiar New World cast: as often manifest as Philo-Semitism as its ominous mirror image. Typically, it is war that awakens the dark incarnation. Henry Ford, for example, would blame America’s entry into the First World War on a phantom German-Jewish banking syndicate. As the Second raged, isolationist and America First spokesman, Charles Lindbergh would charge the “British, the Jewish, and the Roosevelt administration” with pushing the nation into the conflict. A half century later Patrick Buchanan would rehabilitate the America First movement and echo Lindbergh’s slander: “there are only two groups beating the drums for [the first Gulf] war,” he sneered, “the Israeli Defense Ministry and their amen corner in the U.S.” And finally, prior to the Gulf War’s sequel, Virginia Congressman James Moran would reprise the refrain: “If it were not for the strong support of the Jewish community for this war in Iraq, we would not be doing this.”

Now, the notion that the Jews control American statecraft might seem as nothing more than the lurid delusion of cranks, demagogues, and politicians too marginal to take seriously. Only recently, members of the Academy has indulged it too. Drs. Stephen Walt and John Mearsheimer, two political scientists from no less eminent universities than Harvard and Chicago, respectively, not only rehearse their tawdry little folie á deux in public; they actually claim to prove it. (While their colleagues-- NYU’s Tony Judt, in The New York Times, and Michigan’s Juan Cole, in Salon, and Zbigniew Brzezinski, in Foreign Policy--have come forward to defend them.)
II.

The London Review of Books published Walt and Mearsheimer’s agitprop in their March 23, 2006, issue in an article titled “The Israel Lobby.” Naturally, the more sophisticated the paranoid, the more elaborate the rationalization his delusions embrace. So in the “Israel Lobby” the professors have conjured a chimera a bit more subtle, a tad more circumstantial, than the classic Jewish conspiracy but no less fictive or sinister.

The distortion begins with the very first sentence. “Following the Six-Day War,” it reads, “Israel became the centerpiece of America’s Middle East policy.” Oil-- the imperative that has preoccupied US decision-making in the region since at least FDR—plays no role in their fiction. Drs. Mearsheimer and Walt, evidently, never bothered to familiarize themselves with the Carter Doctrine, which just happens to explain why the U.S. maintains bases throughout the Arab Gulf and has gone to war there twice in little more than a decade.

“An attempt… to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force… The region… is of great strategic importance: It contains more than two-thirds of the world's exportable oil.


Since ‘67, their revisionist history continues, America has set aside its strategic interests in the region in order to serve Israel’s. And why does Washington do the Jewish state’s bidding? Well, naturally, because of the infamous “Israel Lobby”. But before they get to their villain, they first mischaracterize the U.S-Israeli alliance’s two principal parts—its strategic and its ideological underpinnings. The geopolitical basis they dismiss by understating Israel’s strategic value during the Cold War. Sure, it contained Soviet expansion and humiliated the Soviet’s Syrian and Egyptian clients, they concede. Sure, it mobilized its armies in 1970, during Black September, to protect America’s ally, Jordan’s King Hussein. But what about the OPEC oil embargo in ’73? Wasn’t U.S. support for Israel at fault? (Pace the then popular bumper sticker: burn Jews, not oil!) And what was Israel’s virtue during the Iranian revolution, they ask? Israel, in the end, couldn’t prevent it. A perfect illustration of the kind of absurd straw men the professors contrive throughout.

Anyway, now, post-09/11, the eminent scholars assert, Israel poses an unmitigated strategic liability. The U.S., in fact, allegedly has a terrorism problem “in good part” because of Israel; support for which contributes an “important” source of anti-American terrorism (on more, later). As for Israel’s role as a surrogate for U.S. interests; that is, its value in distracting Syria from otherwise meddling in Iraq or in containing Iran? Well, Syria and Iran don’t threaten the U.S., Walt and Mearsheimer claim, only Israel. No, the U.S.’s recent obsession with Iran’s nuclear program, in their mind, is a function of the Israel Lobby. “In their mind” being the operative phrase. They conveniently ignore the European Community’s (and the UN’s) supporting role and interest in averting a nuclear Iran in addition to Iran’s sponsorship of Islamic terrorist groups. Groups the U.S. has its own interest in extirpating, according to CIA analyst Robert Baer in See No Evil, because of the international terrorist war they’ve waged on American forces, including their bombings of our Beirut embassy and marine barracks.

And what about America’s moral calling to spread its way of life and to defend small, embattled democracies? Well, Israel, in their view, is neither an underdog nor a genuine democracy. The self-styled Middle East experts have determined that 6.5 million Israelis can fend for themselves indefinitely against 320 million Arabs and 60 million Iranians. Moreover, as a Jewish state, “where citizenship is based on the principle of blood kinship,” they write, Israel violates America’s equal rights creed. Never mind that any Israeli resident—religion, race, color or creed, notwithstanding-- can apply for citizenship after living there five years or that democracies like Ireland and Germany accord citizenship priority to their Diasporas, as does Israel’s right of return: but, hey, what’s a little “blood” libel between friends?

What’s more, “viewed objectively, [Israel’s] past and present conduct offers no basis for privileging it over the Palestinians,” they continue, because “on the ground, [its] record is not distinguishable from its [Arab] opponents”. Perhaps, the professors can’t apprehend the moral distinction between IDF raids that endeavor to assassinate terrorists, which collaterally and inadvertently kill Palestinian civilians, and PLO/Al-Aqsa brigade guerilla operations and suicide bombings whose very purpose and raison d’être is to slaughter and to terrorize Israeli citizens. (See Dr. Benny Morris’ article, “And Now for Some Facts, The New Republic, May 8, 2006, on how Mearsheimer and Walt falsify his scholarly work on the partition period to exaggerate Israelis transgressions and accuse it of “crimes” it didn’t commit.)
But even if, we acknowledge, for arguments’ sake, Israel’s original sin, its displacement of the Palestinians, and its subsequent draconian suppression of their two intifadas, do these transgressions even approach the same order of magnitude as the crimes and depredations of Assad, Saddam, Mubarak, and the House of Saud, etc, let alone suggest commensurability? “Israel does not behave significantly better than most other states,” Walt and Mearsheimer write: are Harvard and Chicago’s own kidding? Even by the standard other democracies set, Israel compares favorably. Did the British use rubber bullets in India? Did an English equivalent of Israel’s B’Tselem monitor their occupation of Northern Ireland and publish the Royal Army’s human rights violations? Or what about those humanitarian cynosures, the French, in Algeria: remember Setif? Or the Belgians’ in the Congo? And what occupation escutcheon would be complete without the blot of America’s Indian Removal Act or Wounded Knee?

Anyway, whatever “special treatment” Israel once earned because of the Holocaust, Messrs. Walt and Mearsheimer are not having it anymore. Israel has forfeited the mantle of victim by committing “fresh crimes against a largely innocent third party: the Palestinians.” Innocent? Non-violent resistance is innocent; a cult of martyrdom is not. Victimization doesn’t exempt one from moral responsibility. And innocents don’t encourage suicide bombers to blow themselves up in discotheques and then canonize them afterward, however brutal their treatment or excruciating their suffering.

“Fresh crimes against a largely innocent third party: the Palestinians… whose national ambitions and sovereignty Israel, to this day, allegedly, has refused to recognize.” Repeating the PLO’s fraudulent alibi for Camp David’s failure: Prime Minister Barak’s proposal, they submit, only would have created a “disarmed set of Bantustans under de facto Israeli control.” The authors’ response to the map Dennis Ross published in his memoir, The Missing Peace, which exposed this lie by documenting the contiguous Palestinian state constituting 91% of the West Bank that Barak offered at Camp David, and the 98% proposed at Taba? The proposal was only oral; they cavil, never presented on an illustrated map. And then again, why believe anything Dennis Ross has to say about Camp David? According to them, the American delegation was in thrall to Israel and Ross himself is a card-carrying member of “The Israel Lobby”.
III.

Which brings us to the real cause of the US-Israeli bond, in Walt and Mearsheimer’s fiction-- domestic politics; that is, the “unmatched power” of the “Israel Lobby.” A domestic lobbying group they portray as a treacherous Behemoth with tentacles penetrating nearly every branch, agency, and power center of America’s foreign policy apparatus—tentacles sufficiently long and sinewy to maneuver the entire U.S. government to sacrifice its own interests in order to serve another nation’s.
Not all “Jewish Americans,” they feel constrained to tell us, are part of the Lobby. There are some Jews-- Walt and Mearsheimer’s best friends, no doubt-- who don’t concern themselves very much with Israel. There are others who even beg to “differ” about specific Israeli policies. Yet about one thing the Jews all agree: “despite their differences, moderates and hardliners both favor giving steadfast support for Israel.” Naturally, this elision minimizes the dissension between dovish groups like Peace Now and The Israel Policy Forum, on the one hand, and hawkish AIPAC and The Zionist Organization of America, on the other, and disregards entirely the latitude this discord gives antagonistic policymakers to pit the two camps against each other to stymie opposition.

But like any paranoid, they discern their figment and its influence everywhere. The “Israel Lobby,” in their description, positively owns Congress. No representative can debate the Lobby, let alone defy it. The evidence: former Democratic Senator, Ernest Hollings, noted upon leaving office, “you can’t have an Israeli policy other than what AIPAC gives you around here.” Supposedly, the ubiquitous Jewish voter gives the Lobby leverage over the Executive branch as well. True, they constitute less than “3%” of the population (actually, it’s more like 2%). But the Jews, you see, turnout in large numbers on Election Day; they donate lots and lots of money; and they live in pivotal states (cunning aren’t they?) And if you criticize Israel, forget about getting a job in the President’s administration. The Lobby allegedly will veto your appointment, filling the administration’s ranks instead with Israel sympathizers and fellow-travelers. Mearsheimer and Walt, apparently, aren’t familiar with George Marshall, Allen Dulles, William Rogers, Zbigniew Brzezinski, Caspar Weinberger or James Baker.

But wait: the Lobby’s omnipotence extends further still. It manipulates the media; dominates the think-tanks; monitors, blacklists and intimidates scholars; and worst of all, smears anyone who criticizes Israel as Anti-Semitic. Well, I ask you, what does one call animus toward the Jewish state so irrational that it could prompt two academics to indulge historical errors, to misquote another scholars’ work, and (as we shall see) to resort to obvious fallacy to infer conclusions about America’s motives in Iraq which mock the evidence? An animus so rabid that it would equate democratic Israel with Arab tyranny, and compare IDF human right violations with Syrian and Iraqi genocide, and finally would breed a fantasy of a confederate domestic lobby so omnipotent it can actually compel the U.S. President, Congress, military, State Dept., Pentagon, and intelligence services to betray the nation’s interests for Israel’s sake? Arabism, perhaps? (Pace Sheik Nayef Rajoub, Hamas’ leading vote-getter in the recent Palestinian election, “And now it is the Jewish lobby in the U.S. that is setting policy in the world and causing it to wage war the world over.”)
IV.

The professor’s little yarn continues with their “Lobby” inciting the war in Iraq.
“Pressure from Israel and the Lobby was not the only factor behind the decision to attack Iraq in March 2003, but it was critical… [T]he war was motivated in good part by a desire to make Israel more secure… Within the U.S., the main driving force behind the war was small band of neoconservatives, many with ties to Likud. But leaders of the Lobby’s major organizations also lent their voices to the campaign… There is little doubt that Israel and the Lobby were key factors in the decision to go to war. It’s a decision the US would have been far less likely to take without their efforts…And although many claim that the Iraq war was about oil, there is hardly any evidence to support that proposition, and much evidence of the Lobby’s influence.” ”

Not 09/11; not President Bush’s oedipal conflicts; not imagined collaboration between Iraq and al-Qaeda; not Saddam’s illusory weapons of mass destruction or his ejection of UN weapons inspectors; not the failures of the sanctions regime or the Saudi bases their enforcement required or the fatwa from Bin-Laden this “infidel” presence provoked; not the missionary impulse to spread democracy; nor the strategic goal of a new headquarters from which to observe the virulent anti-American poisons purveyed throughout Egypt, Jordan, and Saudi Arabia and the rest of the Arab world—No, “the key factors” behind the invasion of Iraq, the professors conclude, were Israel and the Lobby.

The “evidence” implicating Israel,
(1) Prime Minister Sharon reportedly called US-Israeli strategic coordination “unprecedented”; (2) a retired Israeli general also said, “Israeli intelligence was a full partner to the picture presented by American and British intelligence regarding Iraq’s non-conventional capabilities”; (3) former Prime Ministers Barak and Netanyahu, in public editorials, also advocated deposing Saddam Hussein; (4) “apart from Kuwait…Israel was the only country in the world where both politicians and the public favored war” [no citation provided]; (5) Philp Zelikow, former Foreign Intelligence Advisory Board member and current advisor to Condeleezza Rice, told an audience at the University of Virginia in September 2002, “The unstated threat was the threat against Israel”; (6) in August of 2002, Dick Cheney told the Veterans of Foreign Affairs, “Israel is urging US officials not to delay a military strike against Iraq’s Saddam Hussein.”


The “evidence” implicating the “Lobby”,

(
1) An editorial in The Forward reported that, “As President Bush attempted to sell the… war in Iraq, America’s most important Jewish organizations rallied as one to his defense;” (2) prominent neoconservatives inside the administration-- many pro-Israel and with close ties to pro- Israeli groups-- zealously advocated toppling Saddam (Wolfowitz, Feith, Perle, Abrams, and Bolton, among others); (3) on September 15, 2001, Deputy Defense Secretary Paul Wolfowitz proposed attacking Iraq before Afghanistan but President Bush rejected it; (4) but by early 2002, Vice-President Cheney had changed the President’s mind because three neoconservatives on Cheney’s staff had convinced him; (5) prominent neoconservative pundits outside the administration led a relentless public relations campaign in favor of the war-- Robert Kagan, Bill Kristol, Charles Krauthammer, among them
.

For all the tediously redundant citations and superfluous quotes, Walt and Mearsheimer’s logic amounts to the following syllogism: (1) Largely Jewish neoconservatives vociferously championed the Iraqi War; (2) These same neo-cons belong to the Lobby and support Israel (which also endorsed the Iraq War); (3) Ergo, America went to war in Iraq because of the Lobby and Israel. Yet the flaws this logic betrays are so flagrant an undergraduate would shrink from them. The minor fallacy: the Lobby is so vast and prolific that in subsuming practically every public proponent of war, it renders the category meaningless. Supporters of the Iraq War belong to the Lobby; ergo, the Lobby supported the Iraq War. As for the major fallacy—well, correlation doesn’t equal causation. Messrs. Harvard and Chicago flunk Social Science 101. That neoconservatives and Israel advocated the Iraqi war before its declaration doesn’t prove that their support triggered it. The evidence the authors cite could as easily stand for the converse. That is, Israel and the neo-cons touted the war to please and/or to back a President who, Richard Clarke and former Treasury Secretary Paul O’Neill have disclosed, had fixated on Iraq as early as September 12, 2001, and who, following his success in Afghanistan, decided to found his legacy on completing what his father already had started.

Or more probably, following 09/11, a consensus of elite and public opinion, obsessed with the specter of al-Qaeda cooperating with, and obtaining nuclear and/or chemical weapons from rogue states like Iraq, coalesced around the necessity of removing Saddam to preempt this possibility. The neo-cons, Bush, Cheney, Rumsfeld, the Pentagon, the NSC, Congress, the American public, the British, the Israelis, and the “coalition of the willing”—each for their own independent, related, or identical motives— were suddenly of a piece. Israel and the Lobby no more “caused” the Iraqi war than did Halliburton, the oil companies and/or defense contractors which profited from it; the 62% of Americans who supported it, the Congress which voted for it, or the 09/11 attacks which enabled it. You would think two academics would know better than to draw conclusions about cause from anecdote. Then again, as Orwell once observed, propaganda “is designed to make lies sound truthful and murder respectable and to give the appearance of solidity to pure wind.”

V.

Alas, Mearsheimer and Walt’s 12,700 word screed reeks of so much mendacity no essay of this length could dispel it all. Nonetheless two of its most invidious canards bear refuting: (1) that U.S. support for Israel stems from the connivance of an all-mighty domestic lobby and its corollary, that, for this reason, protecting Israel has dominated U.S. Middle East policy since ’67; and (2), that the U.S.’s terrorism problem is somehow owed to this paternalism. The irony is that the work of Wiliam Quandt and Rashid Khalidi, two Middle East scholars the authors themselves cite for objectivity-- for their supposed immunity from the “Lobby’s” insidious influence-- gives the lie to the former.

In American Diplomacy and the Arab-Israeli Conflict, Quandt-- a former NSC official, Mearsheimer and Walt characterize as a “senior Middle East expert…with a well-deserved reputation for even-handedness”-- writes,
“Managing the relationship with the Soviet Union in the Middle East, access to inexpensive oil, and support for Israel were American interests readily accepted by successive administrations… Support for Israel [however] was always tempered by a desire to maintain some interests in surrounding Arab countries, because of either oil or competition with the USSR.”


In other words, Israel’s security never has been the “centerpiece” of U.S. Middle East policy, not before ’67, not after. Since World War II, three equivalent objectives have governed American statecraft in the region: (i) securing access to oil (thus the Carter doctrine); (ii) safeguarding Israel’s survival; and (iii) ensuring America remained the Great Power with preponderant influence in the region, which, through the Cold War, meant checking the Soviets and their Arab clients and now translates into limiting Russian and European influence. The first and third priorities, in fact, account for U.S. alliances with Arab regimes antagonistic to, if not belligerent toward, Israel. Close ties with Saudi Arabia, Kuwait, Qatar, Oman, and the UAE has secured access to oil; while conservative Jordan, post-Nasser Egypt and Saudi Arabia have balanced radical Syria and Iraq and projected U.S. influence beyond the Levant. Egypt, for this reason, received over $2 billion in foreign aid last year. While Saudi Arabia, Kuwait, Oman, Qatar, and Bahrain host U.S. military bases.

Not that preserving a rapport with both Israel and her Arab foes hasn’t demanded nimble U.S. statesmanship on occasion, it has. When the Arab-Israeli conflict seethes, for example, American interests collide and the immediate priority of one or the other can mean sacrificing the third. Sometimes, Washington’s need to appease and protect its pro- Arab allies has trumped Israel’s interests and overridden the objections of pro-Israel groups at home; other times Israel’s needs have prevailed. But when oil concerns or Great Power rivalry has spurred the U.S. to bridle or to rebuke or to strong-arm Israel, no amount of Israeli protest or AIPAC pressure could dissuade or thwart a President from doing otherwise. So,
• Eisenhower wielded the threat of sanctions to compel Israel to withdraw from the Sinai following the Suez crisis;
• Nixon and Kissenger delayed a weapons airlift to Israel during the ’73 War and later prevented Sharon from vanquishing the Egyptian’s encircled Third Army;
• President Carter extracted from Begin, a paladin for “Greater Israel,” a West Bank autonomy arrangement in the Camp David Accords;
• Following the Iranian revolution, Carter authorized, and Reagan approved, the sale of F-15s and AWACS defense systems to Saudi Arabia;
• Reagan condemned Israel for bombing Iraq’s nuclear reactor in Osiraq; and during the Israeli invasion of Lebanon, he forbade Sharon from entering West Beirut and vanquishing Arafat and his commandos;
• Bush I excluded Israel from the international Gulf War coalition and later conditioned a shipment of Patriot missiles on Israel forgoing retaliation to Iraqi SCUD attacks;
• Bush I, later, won his infamous showdown with AIPAC on Israeli loan guarantees, persuading Congress to deduct each dollar spent for West Bank settlements;
• Clinton coaxed Netanyahu, an adamant opponent of Oslo, to assent to the Wye River Accords, further withdrawing the IDF from West Bank cities;
• Bush II formally endorsed the creation of a Palestinian state;
• Finally no American President has ever conferred legal recognition on Israel’s annexation of the Golan Heights, its West Bank settlements, or its designation of Jerusalem as its capital.

In each instance, the President exercised his constitutional authority as the final arbiter of U.S. foreign policy, to which the Pentagon, CIA, State Department, Congress (and the interest groups lobbying it), and every other agent of America’s fragmented foreign policy apparatus had to defer. AIPAC, oil concerns, defense contractors, the Saudi ambassador, the Arab-American Alliance, or any other rival interest group can stage blusterous press conferences, register formal complaints, elicit non-binding Congressional resolutions, induce bureaucratic foot-dragging and stall policy implementation. They even can embarrass a President or tarnish his political standing, but, in the end, lobbies cannot impose a policy they favor or derail a course they dislike. In foreign affairs, the President’s perceptions of U.S. interests, and his will to pursue them, reign supreme.

VI.

It is true however that the breadth and depth of U.S. solicitude for Israel exceeds its support for its Arab allies. A religious, historical, and existential kinship bind the Calvinist and Jewish democracies above and beyond their strategic partnership. It imparts to their relationship a separate ideological dimension which makes it unique-- a “special relationship”, in the scholar’s parlance. Pro-Israel lobbying groups, in mobilizing and marshalling widespread affection for Israel among the American public, cement this ideological bond.
“We agree there is strong support for Israel in America,” Walt and Mearsheimer counter, “But we believe this popularity substantially due to the lobby’s success at portraying Israel in a favorable light and effectively limiting discussion of Israel’s less savory actions.” They, evidently, would have us believe AIPAC manufactures this good will and burnishes Israel’s reputation, like some low-rent public relations firm handling an incorrigible celebrity.

But U.S. partiality toward Israel reflects nothing so transitory or synthetic. Their bond is ontological. The Puritans, remember, founded these United States as a missionary project to redeem mankind. As such, we are an ideological nation. That is, a core of principles forms our identity and sets us apart. Foremost among them is that our Republic ordains a universal example, a promise of salvation for all who would follow. Regimes matter; or to us, they matter anyway. The U.S., for this reason, does not play the cynical game of realpolitick Metternich-style as the Europeans do. France could go from Israel’s foremost military patron to its Arab nemeses’ chief arms supplier in the space of a few years once withdrawal from Algeria militated otherwise. The U.S. does not-- the U.S. cannot-- treat democracies so capriciously. Rather, as democracy’s apostle and guardian, we see its proliferation not just as a good in itself but also as a vital national interest—an imperative for preserving the American experiment and way of life. U.S. foreign policy consequently betrays a greater, more enduring affection for democracies like Israel that embody its values than Arab dictatorships and monarchies that do not. This isn’t to say that U.S. foreign policy is more virtuous than that of Europe’s democracies or that over the past two centuries exigencies haven’t occasioned U.S. alliances with tyrants or even condoned our destabilization of a hostile democracy. It is to suggest, rather, that when the U.S. forges strategic partnerships with fellow democracies, that democratic fellowship deepens their relationship and binds them together with a fastness autocracies cannot equal or even approximate. Or, to quote, Quandt again,
“The bond between the United States and Israel is unquestionably strengthened because of the presumed congruence of values between the two nations. Americans can identify with Israel’s national style—the commitment to western-style democracy, the ideals of individualism and freedom—in a way that has no parallel on the Arab side. Neither the ideal of a well-ordered Muslim community nor that of a modernizing autocracy evokes much sympathy among Americans. Consequently, a predisposition no doubt exists in American political culture that works to the advantage of the Israelis”


What Walt and Mearsheimer refuse to see, in other words, is that American electorate’s affinity for Israel doesn’t emanate from what Israel does, but from what Israel is, a kinship born of culture and identity, not behavior. Israel, like the U.S., is a settler democracy. Israel, like the U.S., did not grow organically around communities rooted in the medieval soil. Immigrants established them, purposefully, post-Enlightenment. Israel, as such, evokes a vision of America’s younger self-- a small, beleaguered democracy settled by hardy pioneers who fled Europe to found a new and better nation amid an alien population in inhospitable environs. A kinship of origin that elevates the U.S-Israeli special relationship to a primal attachment the U.S. enjoys with no other nation save Great Britain. Even their founding myths and motifs resemble each other, a likeness of patrilineal cousins: the Jeffersonian yeoman farmer and Zionism’s rugged kibbutznik; America, “The City on a Hill”, and Israel, “The Light Unto Nations”; God’s “Chosen People” and Christ’s “Elect”; a New and Old Jerusalem, each erected on Promised Lands. Professor Rashid Khalidi, a Middle East history professor of Palestinian descent, echoes this view in his recent book, Resurrecting Empire:
“[T]he same religious and romantic factors that led many European Protestants to extend their fervent support to Zionism affected American Protestants, with the same potent political results…There were other reasons beyond the potent influence of the Bible for Americans to be attracted by the lure of Zionism. Because of their own pioneer heritage, Americans were more apt than Europeans to identify with lurid images of brave, outnumbered settlers of European stock taming an arid land in the face of opposition from ignorant, fanatical nomads… Like European political leaders, they [American political leaders] were swayed mainly by their own beliefs, which tended to reflect the biblically induced pro-Zionist sentiment prevalent among their Protestant constituents.”
(italics mine) .

This ideological bond and symbolic connection between the U.S and Israel, on the one hand, intensifies their strategic cooperation when their interests converge, as in the second Gulf War; on the other, it preserves their relationship even when their leaders disagree and their respective interests clash, as in the first. More often than not though, the geopolitical and ideological dimensions reinforce each other.
That is, democracies may or may not be more peaceful, as Kant believed, or disposed to U.S. interests. Regime change may or may not bring the prosperity, security, or the strategic boon neoconservatives have promised. However, once in the U.S.’s geopolitical orbit, democracies, certainly, make for more reliable allies. Changes in the Israeli government, for instance, do not risk abrogated commitments or herald wholesale shifts in allegiance. The same cannot be said of our other friends in the region. For America’s ties to Jordan, Egypt and Saudi Arabia remain only as durable as their authoritarian rulers’ grip on power. Indeed, Iran’s history (and Libya’s, a US ally before Qaddaffi’s coup) offers an enduring object lesson in the sudden strategic reversals and dramatic realignments autocracies threaten.

VII.But

America’s Arab alliances risk worse than defection. And that Walt and Mearsheimer imagine the U.S.-Israeli alliance “an important source” of “anti-American terrorism” implies a perverse irony: they write, “There is no question that many al-Qaida leaders, including Osama Bin Laden are motivated by Israel’s presence in Jerusalem and the plight of the Palestinians.” Ironic because what 09/11 actually dramatizes is the al-Qaedan scourge America’s alliance with Israel’s foes has begotten. The stark discovery that our Arab allies breed a malignant anti-Americanism transmissible to U.S. shores. That in violently suppressing opposition, Egypt, Saudi Arabia, and even Jordan have radicalized their politics and galvanized a generation of Islamic militants with nihilist rage. Only their despotisms prove too entrenched to topple, too wily and ruthless in effacing opposition and in channeling it elsewhere-- at Israel, at the U.S., at Western Europe, anywhere but at its source.

Fouad Ajami writes in his new book The Foreigner’s Gift,
“Post-09/11…the American imperial position in its two pillars of influence—Saudi Arabia and Egypt—was reeling… $2 billion a year of aid to the regime of Muburak [] bought for America the hatred of Egypt’s middle classes and the virulent enmity of its Islamists. It was in Mubarak’s political prisons that countless Islamists had endured brutality and torture and vowed revenge on the Egyptian ruler and the foreign power that backed him… If Al Qaeda’s money came from the Arabian Peninsula, the Egyptians had provided the backbone of operational leadership…. America’s authoritarian… friends rode with America but brought down on it the wrath of the aggrieved and disgruntled in their domains… September 11th cast the bargain with Arab authoritarianism in an entirely different light
.”

Even Bin-Laden himself lists U.S. support for Israel third among his litany of grievances. The Saudi Arabian’s infamous fatwa, “Declaration of the World Islamic Front for Jihad against the Jews and the Crusaders” inveighs first and foremost at the presence of infidel U.S. troops on Saudi soil and the protection they buy his sworn enemy, the House of Saud. A military presence having nothing whatsoever to do with Israel but rather with the First Gulf War and Saddam Hussein’s invasion of Kuwait; and where troops have remained ever since because under-populated Saudi Arabia cannot defend itself or secure the oil fields so indispensable to U.S. strategic needs. Thus the added irony: far from a sub rosa plot to make the world safe for Israel, as Walt and Mearsheimer suppose, the Second Gulf War actually was propelled by the ulterior motive of making the Middle East safe for the House of Saud. A peaceful regime in Iraq, the U.S. calculated, would enable the U.S. to dismantle its base in Saudi Arabia and to curtail sanctions against Iraq, thereby defusing al-Qaeda’s two most explosive charges: that U.S. troops were desecrating sacred Muslim soil and enforcing a humiliating and genocidal sanction regime against the Iraqi people.

But let us, for a moment, confront Walt and Mearsheimer’s premise head-on. After all, it’s practically an article of faith in Europe (thus their London forum), to say nothing of the Arab world, that by acquiescing to Israel’s Occupation and self-destructive settlement policy, the U.S. invites its terrorism problem and creates one for Europe. But consider the alternative and this shibboleth reveals itself for the myth it is. Imagine, that is, a world in which a U.S President, defying domestic opposition, forced Israel to withdraw fully from the Territories. That tomorrow we awaken to discover that the PLO has established a Palestinian state more or less along the lines Mahmoud Abbas’s referendum proposes—a sovereign country equal to 100% of the West Bank’s land mass before ‘67; its capital in East Jerusalem; the Jewish settlements evacuated; Hamas and Islamic Jihad disarmed and/or co-opted; and Israel’s absorption of a token number of Palestinian refugees and compensation for the rest. Imagine this utopian scenario and reevaluate. Would the normalization of the Palestinian-Israeli conflict strengthen Arab moderates in their ongoing war with the Jihadists? Yes. Would it fortify the U.S.’s strategic presence thereby in the Levant and improve its standing in the Gulf, especially in Iraq? Of course. But-- and herein lies the qualification that swallows the premise: would it quell the seismic unrest, the febrile resentment, the volatile Jihadist backlash sudden oil wealth-- and the modernization accompanying it-- has precipitated or dispose of the corrupt, oppressive, sclerotic Arab regimes oil money has buttressed and enabled? No. Would it diminish Western civilization’s threat to the Islamic world’s traditional elites? No. Would al-Qaeda and the other Jihadists, in short, still beset the U.S and target its shores? And the answer, regrettably, is an unqualified yes.

Because however much the Palestinians’ plight may infuriate Islamic militants, and rationalize anti-American terror, Israel still functions more as lightening rod than spark, more effect than cause, more object than subject of displaced rage and cathartic delusion. For what really inflames al-Qaeda-- and every other Islamic militancy for that matter, whether Hamas, Hezbollah, or Islamic Jihad-- is not the Occupation but the Jewish state’s very existence. The presence of which in the Middle East they perceive to be the satanic agent of America’s crusade to corrupt their sacred pan-Islamic ulama. In this, the Jihadists and the U.S. projections of Israel actually mirror each other; they’re existential. Israel signifies for the U.S. the very democratic pluralism it embodies and champions. To the Jihadist, on the other hand, Israel incarnates the modern civilization they deplore. Israel represents the revolutionary Western dynamo that has diluted their culture, devalued their status, and eroded their identity-- uprooting, alienating, and disenfranchising them. Francis Fukuyama, in America at the Crossroads, explains,
“Islamism and its radical jihadist offshoots are the products of what Olivier Roy calls ‘deterritorialized’ Islam, in which individual Muslims find themselves cut off from authentic local traditions, often as uprooted minorities in non-Muslim lands. This explains why so many jihadist have not come from the Middle East but have rather been bred in Western Europe…. Jihadism is a byproduct of modernization and globalization… an attempt to create a new universalistic doctrine that can be a source of identity within the context of a modern, globalized, multicultural world.”


And which, if true, means the U.S. will have to battle the Jihadists for the foreseeable future, an endemic menace spurning Israel could do nothing to pacify.

VIII.

And it’s the traumas of modernity, what’s more, which returns us to where we started—the origin of Walt and Mearsheimer’s tract in the netherworld of the America mind. After all, how, in the “Israel Lobby,” do two academics—two academics who profess to deplore anti-Semitism—fall prey to a crude analytical tool reminiscent of the Judeophobic ravings of Henry Ford, Charles Lindbergh, and Patrick Buchanan?
Well the story begins with America’s own trial with modernization at the turn of the 20th century and the emergence, in turn, of our own homegrown political atavism, the Populist movement. Populism, like Jihadism, Richard Hofstadter observed in The Age of Reform, arose from the havoc—the confusion, the alienation, the dissolution of old certainties and faiths-- modernization wreaked on a pre-modern society. Populism, like Jihadism, expressed a nostalgic longing for a return to a purer, more pastoral, traditional order. And Populism, like Jihadism, seized on a vivid symbolic target, a scapegoat upon which the dispossessed could vent his rage and frustration-- modernity incarnate, the international Jew. And so, the Jewish specter, previously confined to private space, enters American politics, an incubus forever after.

For as David Plotke writes in his introduction to The Radical Right, “
once a movement introduces durable themes into a national political culture or tradition, those themes become widely available to later forces who may not be identical in aims or composition to those who came before them
.”

Or, I would add, who may not even be aware of their theme’s origin. Thus the Jewish chimera could pass through the collective subconscious from the Populists to Henry Ford, Charles Lindbergh, Patrick Buchanan, and on up to the Ivory Tower without the professors, perhaps, even conscious they had succumbed to its mythology. Because if the bogeyman has mutated ever so slightly from Jewish bankers to Jewish lobbyists, the basic fixture remains the same. God’s American Israel no longer can determine its own destiny because a Jew, whose loyalties forever lie in a Jerusalem elsewhere, has subverted America’s will and internationalized its identity.

Alas, finance capital eludes sovereign control. Middle Eastern violence and instability redound overseas. And on 09/11, the innocent nation, stricken for the first time by the plagues of Job, discovers that the “champion and vindicator of only her own freedom,” now has “monsters to destroy” all its own. Because Chosen-ness and Election confer no privilege beyond their lead role as the phantoms the paranoid and malevolent, the sophistic and grandiose, project in their shadowy worldview.

Monday, April 10, 2006

The Tragedy of Munich

“Every victory has a price tag; every gain entails a loss, not merely the price of effort and blood to achieve a victory but the rejection, or destruction, of values which are incommensurable with the victory.” ---Robert Penn Warren

Perhaps Steven Spielberg exasperates his critics so because he tempts with the glimmer of a genius he never quite realizes. The formulaic sentimentality forever tarnishes the virtuosity of craft.

An insight literary critic Malcolm Cowley once had about Hemingway attests to the director’s sheer technical skill. Hemingway, Cowley observed, “accepted as a postulate that the function of a literary work is to evoke some particular emotion from the reader… Most writers were content to describe the emotion as it was felt… [Hemingway] could make the reader feel the emotion for himself.”

And by the measure of aroused sentiment, few filmmakers rival Spielberg. Whether it’s breathless awe before aliens and dinosaurs, blubbering pity for an oppressed black woman, begrudging sympathy for a spoiled, war-stricken child, righteous outrage at slavery’s evil or nauseated revulsion at Nazi barbarism, Spielberg is as skillful as any director alive in reproducing the exact sequence of images necessary to evoke the desired response.

Of course, where the world-renown novelist and the world-renown filmmaker diverge; where their aesthetics stand in diametric relief, in fact, is equally telling. For Hemingway, above all, strove to capture how he and in turn his characters really felt, shunning what one “was supposed to feel or had been taught to.” The author despised sentimentality—the very wet-eyed artifice that, in contrast, is the director’s lifeblood. Spielberg thrives on the sensational, on shallow, conventional, unctuous emotion. Our empathy needs affirmation; he wrings tears. Conscience demands horror; he induces revulsion. We want escape; he awes us. We expect solace, thence exhilaration. No ambiguities or ambivalences; no complexities or provocations. His films exist to please, to fulfill imaginative expectations, to affirm conscience and good taste. Spielberg entertains.

Even his serious films indulge us. Witness his supposed monument to gravity, Schindler’s List. The film adapts Thomas Keneally’s book of identical title. But in Spielberg’s hands, Schindler bears no approximation to the historical cipher, the man whose motives for saving Jews remain, to this day, inscrutable. Spielberg’s Schindler personifies the time-honored Hollywood hero—the endearing rogue guilt transforms into suffering savior. Worse, the director contrives for his messiah a penance he never sought. This way as Schindler drops to his knees and abases himself, begging for mercy and forgiveness, the audience can weep exonerating tears. After all, don’t we all avert our eyes from evil? Don’t the best of us callously profit from injustice? Didn’t the entire world fiddle while Jews burned? Well then forgive Schindler and excuse thyself. Holocaust rendered as tragic catharsis. (Don’t worry, bubbelah: a good cry and you’ll feel better about Auschwitz and better still, atone in the process.)

Well, Munich, for all its ambition to tell a story of “larger meaning” , reflects a similar vision, consigning it in the end to little more than, sometimes garish, sometimes banal, popular entertainment. For, again, the director alters history for sentimentalist consumption. Again, he projects moral gray in black and white. Again, the promise of lambent drama dissolves in glibness and bathos. Which is all the more frustrating because the story of Israel’s response to the massacre of its Olympic athletes three decades ago bristles with great tragedy’s ironies and paradoxes-- paradoxes which inform our contemporary predicament; paradoxes upon which a more faithful adaptation of Munich’s factual source, Vengeance by George Jonas, might have cast light.

II.
Munich begins in the chaos and bloodshed Palestinian fedayeen unleash on 1972’s 20th Olympiad. A terrorist group called Black September penetrates the Olympic Village compound, kills two members of the Israeli team, and holds nine more hostage for the next eighteen hours. Never is the film more concise, deft or mesmerizing than in this opening sequence. Spielberg captures the raid’s graphic brutality, the international uproar it sparked, and the rapt shock that gripped Israel. Cutting back and forth between the violent standoff inside, the media frenzy outside, and an international reaction ranging from grief-stricken Jews to exulting Arabs to criminally inept West Germans, he manages to recreate the crises’ tension. (Interwoven ABC News footage from ‘72 further sets the ominous tone and injects vicarious suspense into a narrative with a known ending.)

Manipulative editing nonetheless heralds the tawdriness to come. ABC news announces the remaining hostages’ deaths. But to juxtapose the carnage with the Israeli retaliations to follow -- the heavy-hand obscures whether to equate or to contrast the two —Spielberg unfolds the abortive German rescue effort in quick ten to thirty second flashbacks throughout the film, withholding a rendering of the bound athletes’ slaughter until its very end. And, whatever its earnest political intent, the effect cloys, reducing the tragic to the sensational and manipulative.

The histrionics pall further once the setting moves to Jerusalem and Munich’s raison d’etre unfolds—the retribution Israel pursues in response. Prime Minister Golda Meir convenes her cabinet to justify the assassination team she’s authorized. Later she summons Avner, the agent the Mossad have selected to lead it, to her home. Of course, Munich’s Golda bears no resemblance to the agonizing, ambivalent leader Vengeance reveals, a Prime Minister constrained even among subordinates to rationalize her decision: explaining that she previously had expressed profound misgivings with the wisdom and virtue of assassinating terrorists which only the dire symbolism of Jews murdered on German soil persuaded her to excuse. The film portrays the Israeli Prime Minister with a cynicism worthy of Ariel Sharon and the obtuseness of George W. Bush. “I don’t know who these maniacs are,” Spielberg’s Golda declares and later, with sublime bombast, “Every civilization finds it necessary to negotiate compromise with its own values.” (But what democratic head of state would flaunt a Faustian bargain however much she conceded exigency had forced her to strike one?)

The latter represents only one glaring example of the screenplay’s recurring doggerel. Playwright Tony Kushner must have forgotten he was writing for the screen, where drama, perforce, springs from the succession of images, not the dialogue. Or as Arthur Miller warned: because on camera, the “lens magnifies everything,” often the less said, the better. Avner and his team, as such, engage in tedious debates about assassination’s ethics and Jews’ moral responsibility, with their respective positions conforming to stock stereotypes: Carl, the worldly cosmopolitan, invoking the Passover myth and Judaism’s taboo against reveling in your enemy’s demise; Steve the fervent tribalist, contending that he only cares about Jewish deaths. Apart from burdening the film’s dramatic action and stilting its tone, the mannered dialogue, more fatally, strains its characters’ verisimilitude. Avner and his team don’t epitomize the austere, taciturn, ruthlessly efficient stalwarts legend associates with the Israeli Mossad but rather the verbose, reflective, conflicted Yiddishe-kopfs Zionist theory attributes to the Diaspora.

In fact, when Avner’s team anguished or their morale wavered, it was their mission’s efficacy, not its morality, which preoccupied them. Jonas writes,
“It was not a question of remorse… Avner had no feelings of remorse for the mechablim [terrorists] and he thought that Carl and the others felt the same way. Speaking for himself, while he did not enjoy killing, he would have been willing to kill each and every one of the terrorists all over again. That wasn’t the question… Their mission was supposed to weaken and diminish anti-Israeli terror in the world… [But] the monster was growing new heads, almost if having then chopped off had stimulated new growth.”


But Spielberg and his collaborators, it seems, weren’t convinced. To a tragic drama about “targeted killings” equivocal value-- the retaliation and escalation, the infamy and martyrdom, the diplomatic backlash and universal weakening of international restraints it inexorably leaves behind—they preferred a sententious fable in thriller’s guise. Munich’s moral: Jews cannot murder without blackening their soul, betraying their identity, and/or suffering unassuageable guilt, however just their cause or surgical their means. Avner’s hands tremble during his first kill; and he suffers nightmares. He, along with Carl, develops a subconscious death-wish. Prior to assassinating Abad Al-Chir, Avner actually checks himself into the adjacent hotel room and nearly dies in the ensuing explosion. While Carl succumbs to a femme fatale’s lethal charms even though explicitly warned about the bar’s “honey-trap”—spy parlance for the seductive enemy agent. Even staid Hans resorts to drink. (Read: shicker is the goy.) And Robert goes so far to consider quitting altogether. “We’re Jews, Avner,” he admonishes, “Jews don’t do wrong because our enemies do wrong… We’re supposed to be righteous. That’s a beautiful thing. That’s Jewish. That’s what I knew. I’m losing everything that’s my soul.” We’re supposed to be righteous. Evidently, and self-righteous, too.

Ordinarily, poetic license intensifies a dramatic tension and resonance. But Munich’s embellishments and elisions actually succeed in bleaching Avner’s story of nuance and in narrowing its dimension. The much-maligned safe-house scene offers a perfect example. In Athens, Avner’s team ends up sharing a safe house with Palestinian terrorists who mistake the Israelis for European radicals. The lethal coincidence occurs because to find their targets, Avner’s team has to rely on a mercenary, French nihilist outfit called Le Group which not only supplies the Israelis but every other militia, revolutionary, and terrorist cell the world over, including Black September. But does Spielberg allow the poetic irony of the contretemps speak for itself? That is, to accomplish its mission, the Israeli unit increasingly had to assume their targets’ hermitic secrecy, fugitive suspicion, and suicidal reliance for weapons, information, and refuge, on a criminal syndicate which both sustained the very fedayeen the Israelis were enlisted to eradicate and which profited from playing the two against each other.

No, of course not. On the one hand, the film re-imagines Le Group, the né plus ultra of Continental realpolitick cynicism, as a romantic, paternalistic mafia family reminiscent of Coppola’s Corleones. On the other, it scripts a tendentious seminar debate between Avner and Ali outside the safe-house. The two argue about the Palestinian and Israeli claims to the land, the respective justice of their causes, and the origins of their persecution. “My father didn’t gas any Jews… We want to be a nation. Home is everything,” Ali lectures. And Avner evidently sympathizes because when he and the Palestinian terrorist subsequently cross paths, he hesitates before shooting. Naturally, the debate appears nowhere in Vengeance’s account of the safe-house encounter; from which Avner and his team actually gained renewed purpose and resolve because of how frightened the Arabs sounded about the recent assassinations.

III.
The episode also highlights another of the film’s misbegotten inventions-- the Holocaust motif. Throughout, Munich rehearses the platitude that the Palestinians are the victims of victims: pace the title, an implication that the true origin of Munich’s bloodbath lies with Hitler’s rise in that city during the 20’s and Chamberlain’s appeasement of him there a decade later. Thus, Ali argues, “my father didn’t gas any Jews.” While Golda Meir, almost in counterpoint, pronounces Black September to be “the same as Eichmann.”
The most strained reference occurs near the film’s conclusion. Where, in a kind of operational post-mortem, Avner confronts his former superior, Ephraim, and not only repudiates his mission’s legitimacy but actually goes so far as to argue that Israel should have apprehended the fedayeen and tried them for murder as they did Adolph Eichmann.

Critics have decried Munich for this scene in particular because Spielberg set it in lower Manhattan, framed against the backdrop of the World Trade Centers, which he had inserted digitally. To New York Times columnist Edward Rothstein the ominous Towers mean to suggest “that the 9/11 attacks may even be the consequences of Israel’s response to the Munich massacre.” To be sure, Spielberg’s pedantry didn’t help him any in this regard: “the Avner character, in the end, simply questions whether the response was right,” he opined in the Ebert phone call, “Sometimes a response can provoke unintended consequences.” Still, the conclusion that the Trade Centers intend to signify a causal connection between avenging Munich and 09/11 three decades later would seem more to bespeak Rothstein’s paranoia than the director’s. In fact, as a symbol and metaphor for terrorism’s enduring scourge, the Twin Towers seems entirely apt, wholly apart from their concession to historical accuracy, a prop apropos the era.

And in any case, the criticism misses the point. For the connection that compromises the scene is not that between Israeli reprisals and Islamist terrorism but the casuistic distinction between the “defensible” arrest and trial of Eichmann and the “indefensible” killing of the conspirators of Munich. First looms the obvious objection. Eichmann was but the single most notorious remnant of an extinct menace (the abduction of whom in Argentina, incidentally, sparked international condemnation.) Whereas Black September posed an active, immediate threat comprised of legion planners and perpetrators spread across multiple nations harboring and supporting them and aiding their operations. A difference in danger, and accompanying response, no Israeli intelligence agent could fail to appreciate. The spy, after all, is but an instrument of statecraft; where, as Machiavelli observed almost 500 years ago, virtue consists not in moral purity or benign intentions but in expedient means and practical results.
Hence Avner’s perception of his mission, in retrospect, as he relates it in Vengeance.

“Avner’s present views on his mission are devoid of second thoughts or regrets… he continues to regard their [the terrorists’] physical elimination as something demanded by necessity and honor. He fully supports the decision that sent him and his partners on their mission, and has absolutely no qualms about anything they did… He concedes that it no way eliminated terrorism or diminished hatred and tensions in the world, but on the whole he feels that more innocent people would have become victims of terrorist acts in Israel or in Western Europe if his team and other teams had not killed top terrorist organizers during the 70’s.”

Then, to add to the distortion, the Eichmann example both Golda and Avner invoke is an historical anachronism. The Holocaust and Palestinian terror only assume an identity in the Israeli imagination with Menachem Begin’s election two years later and the Likud Prime Minister’s repeated conflation of the two. As Israeli historian writes in Righteous Victims, Begin viewed “the PLO as a reincarnation of Nazism and Yasser Arafat as a latter-day Hitler. He was wont…to compare the PNC Covenant to Mein Kampf.”


IV
But whatever quibbles one can raise about the film’s political fallacies and historical errors, its greatest flaw is still artistic. For all its pretension to “larger meaning”, Munich, ultimately, typifies a familiar Hollywood brand-- the treacly fable of sentimental education. Ergo, assassins suffer identity crises and realize, after all, “thou shall not kill;” Mossad agents undergo moral conversions to espouse Christ’s command to turn the other cheek; and Zionists come to embrace a conception of Jewish identity no Israeli would recognize. Even the ending follows type: Avner, the noble, disillusioned hero breaks with the cynical, venal bureaucracy that used him for its own devious end, and reclaiming whatever integrity remains him, walks off alone but free into the sunset. See Raiders of the Lost Ark.

The irony is that so intent is Spielberg to invest “larger meaning”-- to show revenge dehumanizes and for the Jew, dissociates; and to embroider his parable with a synthetic Holocaust resonance-- that he overlooked the tragic implication his story already possessed. Those inextricable contradictions, Promethean wages, irreconcilable goods and dialectical consequences that make for rich, allusive drama and that mark the final chapter of his protagonist’s odyssey.

Avner, you see, does not quit the Mossad and forsake Israel and live happily ever after in Brooklyn. Still less do the paranoia and fear of the hunted; the guilt that he many not have killed the Palestinians responsible for Munich; or the material lure of an oversized Swedish kitchen drive this ascetic, fiercely patriotic, kibbutz-bred sabra to desert Zion. Neither does the Mossad just let him go.

According to Vengeance, when Avner declines his next mission and informs Ephraim he intends to remain in the U.S., the Mossad respond by emptying his bank accounts, leaving him a penniless illegal alien. Next, Avner receives ominous photographs of his daughter super-scribed with a rifle target. Finally, swarthy men speaking Hebrew show up at his daughter’s school and threaten to abduct her. Evidently, the Mossad decide that if Avner is determined to rejoin the Jewish Exile, they plan to ensure he lives the impoverished, insecure existence in which Zionist theory portrays it. Only this time, of course, with the Israel, rather than the goyim, tormenting the Jew and constricting his freedom.

Of course, no sabra would endure such persecution because killing terrorist suddenly offends his conscience. What motivates Avner to forsake Israel is, at once, more profound and because of what it reveals about the Jewish state’s predicament, more tragic. For, like the thousands of Israelis who emigrate annually, Avner, more than anything else, covets the freedom to determine his destiny. The obligation and sacrifice, the self-effacement, the Jewish state’s readiness to make him expendable, to treat him as a means to, rather than an end of, his people’s survival, has wearied him beyond relief. He has served his people. Now he seeks in America the very sovereignty, the ability to lead a fulfilling and normal life, that Zionism promised the Jew but Israel, the beleaguered garrison state, hasn’t the luxury to deliver.

Yet another of the cruel ironies that God has visited on his Chosen People: history has cast their state, writ large, to re-enact the embattlement, claustrophobia, internal strife, and self-constraint that once plagued their dispersion. Meanwhile, the closest the Jewish experience has come to normalcy is in a “Promised Land” founded by a people claiming to supersede Jewry as God’s Chosen, a Zion the Puritans called the “New Jerusalem”. As the Israeli journalist Shuki Elchanan tells Nathan Zuckerman in Philip Roth’s novel The Counterlife,
“Israel has become the homeland of Jewish abnormality…and we, Israelis, the excitable ghettoized, jittery little Jews of the Diaspora… While you [American Jews] are living interesting lives, comfortable lives, without apology, without shame, and perfectly independent… without real fear or persecution or violence, we are living the kind of imperiled Jewish existence that we came here to replace.”


But Munich’s missed opportunities don’t end with Jews and Israel; the tragic ironies reverberate closer to home. Indeed, as the U.S increasingly faces the terrorist menace that has plagued Israel for decade and adopts, to combat it, her forerunner’s methods, it would behoove us to consider beforehand Avner’s predicament. For the Mossad agent’s final battle, the battle to wrest his freedom from his own government dramatizes the danger to any democracy forced to fight a constant, open-ended war against a diffuse and insidious enemy. Namely, that the ruthlessness and extra-legality a liberal society deploys against terrorists abroad, just as easily, can redound inward. The war hypertrophies and unlooses the institutions built to wage it. Contempt for the law abroad breeds contempt for it at home. The line between foreign foe and domestic opponent blurs. Suspicion degenerates into paranoia; conformity, masquerading as patriotism, stifles dissent. And suddenly, a liberal democracy awakens to discover that gradually and imperceptibly it has sacrificed the very freedom it declared war to protect.

Look no farther than contemporary America: the excesses of the Patriot Act; the Bush administration’s suspension of habeus corpus for citizens it deems “enemy combatants”; its insinuation that opposition to the Iraqi war is treacherous because it abets the insurgency; and more recently, the President’s illegal NSA domestic surveillance program. Perhaps, Kant had it backwards: it isn’t democracy that secures, but peace that preconditions democracy.

Terrorists win by losing; democracies lose by winning: not exactly the unsparing dramatic vision likely to spur ticket sales or to enamor an audience. Still, if there ever was a Hollywood director capable of casting the spell that would suspend our disbelief and weaken our resistances long enough to heed it, it’s Spielberg. Unfortunately sentimentality must be for Hollywood what imperium is to Washington—a peril of success. A success which makes Munich, in the end, a far more poignant tragedy than Spielberg ever intended.

Monday, February 06, 2006

The Strategy the Democrats Should Have Used Against Alito

A Two-Pronged Strategy for the Alito Hearing


When Judge Alito appears before the Judiciary Committee in January, Senate Democrats, no doubt, will question him about his Appellate opinions, old memos he authored, and his understanding of various Supreme Court precedents. From his testimony and the paper record, they will attempt to glean his vision of the Constitution and if possible, to extrapolate Alito’s votes on future decisions vital to them and their constituencies.
But if the Robert hearing serves as any guide, Democratic Senators can expect their considered probing to meet with evasion, stonewalling, circumlocution, and platitude. Democrats will bridle and thrust; Judge Alito will smile and parry.
Q: “Why did you uphold spousal notification in Casey?”
A: “Well, given the ambiguity following Webster, I was only trying to apply the common understanding of existing precedent.”
Q: “Would you overrule Roe?”
A: “ I would honor the principle of stare decisis and not allow my personal views to influence my decision.”
Q: “Does the Constitution allow the State to implant a tracking device in convicted sex offenders to monitor their whereabouts upon release?”
A: “Well, I can’t answer that question, Senator, because the answer might tarnish the appearance of impartiality should the matter ever arise before the Court.”

Senator Biden has bemoaned this “Kabuki Dance”, the Senator, with his characteristic eloquence, conceding his frustration and groping for an alternative plan of attack.
The following memo will recommend one. In it, I propose a two-pronged strategy for engaging Alito on the né plus ultra of Constitutional controversy and an issue dear to the Senator’s heart-- the right to privacy and the doctrine of substantive due process.
I. Introduction/Summary
First, I urge the Senator to resume the inquiry he began in his final turn at questioning Justice Roberts but didn’t have sufficient time to complete: i.e., the case of Michael H v. Gerald D, 491 U.S. 122 (1989) and the methodology a Justice employs to define the “liberty” the Due Process Clause protects against state intrusion . For as the Senator has intuited—if not, said so explicitly-- Michael H v Gerald D distinguishes itself among substantive due process precedents for the informative and far-reaching methodological dispute between Scalia and Brennan at its core. A dispute of value for the Alito hearings because it suggests a series of questions, at once, telling enough to project whether the nominee would be a Scalia/Thomas reactionary or an O’Connor/Kennedy conservative and sufficiently abstract to obviate Justice Robert’s dodge that doing so could prejudice future cases before the Court
The strategy’s second prong, by contrast, would capitalize on whatever equivocations the first prong cannot avert and use them to unnerve the social conservatives responsible for Mier’s withdrawal and Alito’s nomination. It would do by exploiting a corollary but often overlooked truth about the doctrine of substantive due process. Namely, that the same liberty the Due Process Clause extends contraception, abortion, and sexual privacy also protects from State encroachment those interests social conservatives profess to cherish—the family, marriage, parenting, and procreation.
See Pierce v. Society of Sisters (liberty of parents to direct upbringing of children), Meyer v Nebraska (liberty to control child’s education); Moore v. City of E.Cleveland (liberty of blood relatives to live together); Loving v. Virginia (right to marry); Skinner v. Oklahoma (right to reproduce); Stanley v Illinois (unwed father’s liberty interest in child); Michael H v. Gerald D. (sanctity of “unitary” family). See also Casey v. Planned Parenthood, 505 U.S. 833, 849, 112 S.Ct. 2791, 2806 (1992)(Roe originated from both (i) liberty protecting “family, intimate relationships, and decision whether to beget or to bear a child”; and (ii) liberty protecting personal autonomy and bodily integrity))


After all, it is the Religious Right which relies upon the “zone of liberty” surrounding the family to defend home schooling; and, one assumes, the principle to which social conservatives refer in asserting that population controls violate the Constitutional order. See First Things, “Evangelicals & Catholics Together” (1994), “We will do all in our power to resist proposals for…population control that… betray the moral truths of our constitutional order.”

The second prong, in other words, seeks to maneuver Alito into a Hobson’s choice. Either he must declare whether hypothetical laws enacting population controls (or forbidding home schooling) violate the Due Process Clause. Or alternatively, should he decline to express an opinion one way or the other, he will have withheld sanction to rights the Religious Right hold sacred. Either alternative profits the Democrats.
I explain each prong in further detail below.

II. PRONG ONE: MICHAEL H v GERALD D., 491 U.S. 122 (1989)If you are familiar with this case’s facts and holding, skip to Section B.

A. Facts and Holding
Facts: Plaintiff Michael H., the natural father of Victoria, challenged a California statute which terminated his parental rights because at the time his daughter was born, Victoria's mother, Carole, was married to (and living with) Defendant Gerald D.

Michael submitted blood tests that established him, with 98% certitude, as Victoria’s father. Michael and Victoria’s mother, Carole, both acknowledged Michael as the father. And finally, Michael treated Victoria as his daughter, supported her financially, and even lived with her for a time. Nonetheless, California courts, citing the statute, decided Gerald alone was the father and denied Michael visitation rights and all the other constitutionally protected privileges and liberties inherent to parenthood: (i)) the right to visit his daughter; (ii) the right to have custody over her; (iii) the right to rear and care for her; (iv) the right to direct her education and healthcare; and (v) the right to instill moral standards, religious beliefs, etc.

Michael challenged the statute’s constitutionality, citing the substantive due process precedents of Stanley, Quillon, Caban, & Lehr for the principle that an unwed father with (i) a biological link and (ii) substantial parental relationship with his child earns the Constitutional rights accorded parenthood. And that California’s summary annulment of his parental status via statute violated the Due Process Clause accordingly.
Holding: A 5-4 majority, with Justice Scalia writing the opinion, rejected Michael’s argument, upholding the constitutionality of CA's statute and the state court’s holding.

That is, Michael, Victoria’s biological father, with whom Michael lived, with whom Michael maintained a relationship, and to whom Michael provided financial support was deemed NOT to have a parental relationship the constitution protects. The Due Process Clause’s guarantee of liberty, in the majority’s reading, only safeguards relationships that develop within the “unitary family.” California then-- blood tests to the contrary notwithstanding-- could decree that Gerald, not Michael, was Victoria’s father and deny Michael any right to see, rear, or care for her.

B. Michael H. v Gerald D: A Rosetta Stone
Michael H. v Gerald D produced a plurality opinion, two concurring opinions, and two dissents. However, for our purposes, Scalia’s decision for the plurality and Brennan’s dissent are the keys. For buried in their arcane debate about how to interpret the “liberty” of the Due Process Clause lies a Rosetta stone to the Court’s ideological schism on privacy rights and a legend both for divining Altio’s likely position along it and for predicting his votes in future right to privacy cases. A touchstone, furthermore, of infinite value for the confirmation hearing because it implicates method, and to questions of method, Roberts’ brand of evasion, pretext, and bromide do not respond.

At its crux, Brennan and Scalia’s argument concerns how tradition informs and defines the “liberty” the Due Process Clause safeguards from State encroachment. Both acknowledge that the State cannot abridge fundamental liberties “deeply rooted in the country’s traditions”. Their disagreement stems from how the Court goes about identifying these traditions; and how, once identified, the tradition determines the asserted right’s scope and application. How does a Justice, in other words, decide whether “liberty” means “the right to beget children” (or “the right not to”); “the right to raise them”; “the right to refuse medical treatment;” or as Senator Biden framed it, “the right to engage in a consensual act in the bedroom with one’s [spouse]” (See Biden, What’s at Stake: The Constitution and the Supreme Court, July 29, 2005)

Scalia proposes a methodology of seductive simplicity. How do we determine whether a given liberty is “fundamental” and/or “deeply rooted in the nation’s traditions”? Easy, look at the common law and the nation’s practices at the time the Founders ratified the Fourteenth Amendment. Do biological fathers like Michael H. have constitutional rights to offspring conceived through cuckoldry, for example? Well examination of Lord Blackstone’s Commentaries of 1836 reveals that common law enshrined a presumption in favor of legitimate children and against so-called “adulterine bastards”. That is, when the states ratified the 14th amendment, the common law considered a child born into an existing marriage the offspring of the husband and the wife, regardless of who sired him. Ergo, an “adulterous natural father’s” parental rights are not a deeply rooted national tradition, and the State can withhold them or standing to establish them, as California does. Scalia, in short, does Faulkner one better: the past not only is not passed; it is present. The common law of history, evidently, provides the index of the nation’s fundamental liberties now and forever. See also Cruzan, 110 S.Ct 2841 (1990)(Scalia, concurring)(common law prohibition against suicide means right to suicide not fundamental liberty); Casey, 505 U.S. 833, 984 112 S.Ct 2805, 2876 (1992)(state can proscribe abortion, sodomy, polygamy, incest because throughout American history states have criminalized these practices)(Scalia, dissenting).

To Brennan, in contrast, ascertaining whether a given liberty is “fundamental” or “deeply rooted in the nation’s traditions” requires a more nuanced and thoroughgoing examination. Brennan’s inquiry entails scrutiny of existing precedent, changing social norms, the countervailing State regulation’s expressed intent, and a Justice’s reasoned judgment. For example, do Michael H and his daughter’s relationship--biological fatherhood plus a parental role-- approximate the parental rights the Court previously has held to deserve constitutionally protection (e.g., the unwed fathers in Stanley, Lehr, Caban, etc.)? Has society altered its views sufficiently to vitiate the State’s original interest in minimizing illegitimacy’s stigma? Is California’s expressed interest still valid in a society where blood tests now can determine paternity with 99.8% certainty? Is the curtailment of an “adulterous natural father’s” parental rights the most narrowly tailored means for California to promote stable marital relations?


C. How the Debate Offers a Litmus Test
What’s significant about the Scalia-Brennan debate it how it has shaped the outcome of cases that have come in its wake and marked the Court’s ideological divide. For whether a Justice accepts or rejects Scalia’s method has proven a reliable barometer both for predicting his/her substantive due process jurisprudence and his place along the conservative-reactionary continuum. If a Justice endorses Scalia’s method, he/she will be less apt to extend “the right to privacy” to newly asserted liberties or to show fealty to stare decisis, for that matter. And furthermore, he/she will be more inclined, in contrast, both to overturn substantive due process precedents like Roe/Casey, however old or established, and to align himself with the activist conservative wing (Scalia-Thomas) against the wing of conservative restraint (O’Connor-Kennedy-Souter).

This methodological touchstone first manifested itself in Michael H v Gerald D. Justices O’Connor and Kennedy concurred in the case’s result but refused to sanction Justice Scalia’s method. Id. at 130-1, 2346-7(“I concur in all but Footnote 6 of Justice Scalia’s opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause… that may be somewhat inconsistent with our past precedents”)

Then, in Planned Parenthood v. Casey, O’Connor and Kennedy (and Souter), in reaffirming Roe, repudiated Scalia’s approach explicitly. “Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” Planned Parenthood v. Casey, 505 U.S. 833, 848, 112 S.Ct.2791, 2805(1992)(emphasis added).

Justice Kennedy and Justice Souter, in the ensuing decade, proceeded to reject Scalia’s method explicitly in separate cases. Justice Thomas, in contrast, championed Scalia’s method, either by signing Scalia’s opinion or by echoing it in his own.
Compare Souter in Washington v.Glucksberg, 521 U.S. 702, 765, 117 S.Ct 2258, 2281-2 (1997)(“My understanding of [substantive due process] avoids… equating reasonableness with past practice described at the most specific level”); Kennedy in County of Sacramento, 523 U.S. 833, 857, 118 S.Ct 1708 (1998)(“History and tradition are the starting points but not in all cases the ending points of the substantive due process inquiry”) and Kennedy in Lawrence v. Texas, 539 U.S. 558, 566-71, 123 S.Ct 2472, 2478 -80(2003)(Bowers’ Court noted that for centuries powerful voice condemned homosexual conduct but this does not answer question because liberty interest at stake is broader) with Thomas in Chicago v. Morales, 527 U.S. 41, 102-3 (1999)(Thomas, J., dissenting) (no freedom to loiter because “laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest”); and Thomas in Troxel v Granville, 530 U.S. 57, 80 120 S.Ct 2054, 2067-8 (2000)(Thomas, J. concurring)(“Neither party has argued that our substantive due process cases were wrongly decided and the original understanding of the Due Process Clauses precludes judicial enforcement of un-enumerated rights under that provision… I understand the plurality to leave the resolution of that issue for another day.”)


E. Questions the Debate Suggests For Alito
This debate over method accordingly suggests a potentially very telling line of inquiry for the Alito hearing. Because as I contended above, questions about method are sufficiently theoretical to foreclose Roberts’ equivocations. They don’t implicate current cases or controversies, and a promise to respect “stare decisis” affords no answer.
• Does historical common law determine whether an asserted liberty qualifies for protection under the Due Process Clause? If so, how and to what degree? Should it act as the definitive arbiter? What if the common law prohibiting a particular historical practice (like abortion) wasn’t uniform at the time of the 14th amendment’s ratification? If it indeed has changed since and a departure at a later juncture is evident; does the common law at the time of the 14th Amendment’s ratification trump the common law of today? How should the evolution inform the Court’s assessment of the liberty interest asserted? Can the Court ever override a long-standing common law prohibition? For example, could the State sterilize its citizens because there’s a historical record of legislation authorizing such? See Indiana Sharp Act (1907) (enabling “state reform officials” to sterilize “confirmed” criminals) Alternatively, is there ever an instance, for example, in which an individual liberty asserted—say, right to refuse resuscitation (as expressed in living will)—warrants Court protection notwithstanding long-standing State law criminalizing suicide? [NOTE: The questions here do not ask the nominee for the decision he would render but rather the method he would employ in reaching his result?]

• What happens if there is no history one way or the other about the practice at issue? That is to say, what if unlike criminal prohibitions against sodomy, loitering, or suicide, the right asserted implicates some entirely new technology about which no tradition either way can exist? For example, what if a state outlaws artificial insemination? How does a Justice assess if there is right to artificial or medically assisted procreation when history, defined at the most specific level gives no guidance? How does this silence affect a Justice’s determination of whether it is a deeply rooted tradition?

• Can a Justice ever advert to changing social mores, new case law, and evolving conceptions of liberty in deciding whether that liberty is “fundamental” or “deeply rooted in the nation’s tradition”? Can a Justice, in assessing a hypothetical asserted “right to medically assisted procreation,” take note of statistics that show that in the U.S. artificial insemination begets 20,000 to 30,000 babies each year? If so, how does this inform the Justice’s analysis?

• If the common law of the past is not the sole arbiter, how do we determine then whether a liberty is so fundamental or deeply rooted in the nation’s traditions? In interpreting what Due Process Clause’s promise of liberty entails, why can we not deduce “unremunerated rights” from the “Constitution’s structure” as Justice Scalia does in his 11th Amendment jurisprudence? The 11th Amendment makes no mention of a state’s freedom from suit by its own citizens yet Justice Scalia wrote in 1991 that "despite the narrowness of its terms," the 11th Amendment has been understood by the court "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." (Blatchford, 501 US 775, 779) Why does the same reasoning not apply to the liberty the 14th Amendment’s Due Process Clause protects? Don’t the Due Process Clause’s “unremunerated rights” inhere in the design of The Bill of Rights, which the Founders expressly intended to place certain individual liberties outside the State’s purview and thereby to guard against the “tyranny of the majority”. Or to use conservative periodical First Things’ locution, why do not the unremunerated liberties the Due Process Clause secures inhere in the “Constitutional Order” of the Republic—an order, according to Madison in the Federalist Papers (#10, 51) constructed to preempt pure majority rule because it bred tyranny?

III. PRONG TWO: ATTACKING ALITO’S RIGHT FLANK
If the first-prong tries to anticipate Alito’s evasions on the substantive due process doctrine and to forestall them, the second-prong would use his evasiveness to weaken his political support. As I intimated in Section I., it is a little-challenged misconception that only Liberals treasure the liberty the Due Process Clause vouchsafes. Actually, social conservatives value autonomy as well, provided, of course, the liberty interest protected comports with their worldview: e.g., a parent’s right to school his child in Creationism or a married couple’s right to have as many children as they wish or the “unitary family’s” custodial rights vis á vis distant relatives or merely biological relations (like Michael H.)

And whether conservatives know it or not, Justice Scalia has written “the rights of parents to direct the upbringing of their children” don’t merit Constitutional protection. Troxel v. Granville, 530 U.S. 57, 92 (2000)(“theory of unremunerated parental right underlying [Meyer, Pierce, Yoder] has small claim to stare decisis protection… neither would I extend the theory upon which they rested.”)(J.Scalia, dissenting) True, many on the Right believe the political process would protect these interests regardless. However, in the case that led to Troxel however legislative majority rejected the Right’s conception of the “unitary family”.

The goal then for the Alito hearing is to pose a set of hypothetical fact patterns in which legislative majorities would restrict a family’s autonomy, as did Washington’s legislature. Let’s say overpopulation in California continued to be a problem. Could the legislature enact restrictions on the number of children a family can have without offending substantive due process? What about less burdensome restrictions, like a mandate to register with the government before having a child, so the State keep track of population growth annually without having to await a census? And keeping in mind Alito’s infamous dissent in Casey upholding spousal notification-- could the State, analogously, require that before bearing children, a married woman must certify that her husband approves of the pregnancy? Or alternatively, that her husband must certify that he can and will support the child financially? Or would these restrictions place an “undue burden” on the right to bear or to beget children. Remember: the right to conceive a child is the flip-side of the right to forestall or abort conception. Casey v. Planned Parenthood, 505 U.S. at 857.

Posing questions of this kind carries political benefits for Democrats regardless of whether Alito, like Roberts, chooses to evade them or to give some mealy-mouthed platitude in response. They unnerve social conservatives regardless. Wouldn’t the Religious Right balk at a nominee who refuses to say that, as First Things puts it, “population controls betray the moral truth of our constitutional order?” Or say, Senator Biden altered slightly the question he asked Justice Robert about the State’s power to implant tracking devices in convicted child molesters. What if the Senator inquired instead whether the State had the power to sterilize convicted child molesters and Alito, like Justice Robert, said he couldn’t answer because it might prejudice the outcome should the issue ever come before the Court? The evasion just might divide the Republicans, pitting the “right to lifers” against “the law and order” crowd.

Similarly, one could imagine a law in response to Scopes II, the current lawsuit in Pennsylvania over “intelligent design,” which requires that every child be taught evolution whether home schooled or not and pass a proficiency test demonstrating such. In this instance, Alito’s refusal to commit either way to the constitutionality of the law just might pit theo-cons against neo-cons.

In other words, if the nominating process has become little more than a Kabuki Dance, why not use the stage to unsettle the audience? Republicans have enacted this divide and rule drama ever since Nixon. Democrats need only stage their own splits to return the favor.