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December 17, 2023
Key takeaways from a longer-than-usual newsletter (details and analysis are in the body of the newsletter):
- We must bring every hostage held by Hamas back home. We cannot let them be forgotten.
- President Biden continues to stand with Israel in its war against Hamas despite increasing pressure for a ceasefire. A ceasefire now is a victory for Hamas and would leave Hamas in place, armed and dangerous, biding its time to fulfill its promise to repeat October 7. A ceasefire was in place on October 6. No country would allow its citizens to be massacred again and to live under a constant threat of terrorism.
- Instead of bringing President Biden's emergency aid package, which includes an unprecedented $14.3 billion for Israel, up for a clean vote, Republicans are doing everything except governing responsibly, wasting our time with toothless resolutions, pointless hearings, and sham investigations. It's been nearly two months since Biden requested aid for Israel and Ukraine and neither ally has seen a dime thanks to Republican obstruction.
- Most Democrats voted against a resolution introduced by Rep. Elise Stefanik (R-NY) mainly because it reeked of hypocrisy and congressional overreach. If Republicans were serious about fighting antisemitism they would condemn it from their own leadership, including Donald Trump and Elise Stefanik.
- "It depends on the context" is the answer that the IHRA definition of antisemitism demands of any statement that could be considered antisemitic.
- First Amendment (or similar standards) that apply to the public square are not necessarily appropriate on college campuses, although in both cases context matters. That's what my analysis last week was missing.
Read to the end for corrections, what you may have missed last week, fun stuff, and upcoming events.
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Hi Steve,
Shabbat began with the tragic news that the IDF mistakenly killed three hostages trying to escape during fighting in Gaza. Yair Rosenberg explains that "the reason this happens is because Hamas fighters dress in civilian clothes, which is a war crime because it makes it extremely difficult to distinguish between civilians and combatants. The death of civilians as a result is by design."
Hamas attacked Israel on October 7, savagely murdering 1,200 people, murdering more Jews in one day than have been murdered on any day since the Holocaust. Hamas murdered, raped, and tortured babies, children, and the elderly. They took 240 hostages, denied them medical treatment, and badly mistreated--in some cases tortured-- them, including pinning a boiling piece of metal to the legs of children, drugging children, and forcing children at gunpoint to watch videos of Hamas's October 7 atrocities. These threads from Alex Plitsas and Tamara Zieve about the videos are hard but vital reading.
Thanks to President Biden’s diplomatic efforts and Israel’s military pressure, dozens of hostages are free, but Hamas holds roughly 137 men, women, and children hostage. We cannot forget them. We must bring them home. For those alive, every minute matters. Hamas’s sexual violence is well-documented. We can only imagine what the remaining hostages are enduring day after day.
President Biden met with hostage families for nearly two hours on Wednesday (Biden previously held a video conference with hostage families). One hostage's father told reporters that the families of the American hostages feel they have "no better friend" than Biden. Rep. Debbie Wasserman Schultz (D-FL) invited hostage families to speak at her Chanukah gathering at the Library of Congress on Wednesday evening, where a packed crowd that included many members of Congress, Jewish and non-Jewish, listened in rapt silence. We must do our part by continuing to remind everyone that we cannot rest until all the hostages are home.
We must continue to reject calls for a ceasefire. A ceasefire was in effect on October 6. Hamas broke it. Those calling for a ceasefire have yet to explain how to address the unacceptable result it would likely bring about: Hamas left in place, with about 138 hostages, with the capacity and stated intent to repeat October 7 again and again.
Pressure should be applied to Hamas and its allies, not Israel, to stop fighting, return the hostages, and relinquish control of Gaza. We did not tolerate ISIS and Al Qaeda, which were thousands of miles away. Hamas is on Israel’s border. The furthest any Israeli lives from Gaza is 300 miles, and Hamas has fired thousands of rockets into Israel since October 7. A state's first duty is to protect its citizens. No country would tolerate Hamas or anything like it on its border and every country would do all it could to incapacitate Hamas and bring its leaders to justice.
The immense suffering in Gaza is real. John Spencer explains that "the visually repulsive imagery in Gaza essentially recreates the same scenes that unfolded under American and allied campaigns fighting Al Qaeda, ISIS and other terror groups, because that is what it looks like when you are forced to uproot a sadistic terror organization embedded in an urban area. Sadly, successful US-led or supported campaigns in places such as Mosul and Raqqa caused billions of dollars in damage and killed and displaced hundreds of thousands of civilians; that is the hellish reality of defeating terrorism.
"Like all similar conflicts in modern times, a battle in Gaza will look like the entire city was purposely razed to the ground or indiscriminately carpet bombed – but it wasn’t. Israel possesses the military capacity to do so, and the fact that it doesn’t employ such means is further evidence that it is respecting the rules of war. It is also a sign that this is not revenge – a gross mischaracterization of Israeli aims – but instead a careful defensive campaign to ensure Israel’s survival."
Hamas embeds itself in and beneath civilian infrastructure, including hospitals and schools. Is the world you want to live in a world where terrorists can operate with impunity if they are clever enough to dig underground tunnel networks and use civilians as human shields?
Hamas has created a battlefield like none other in the world. Its network of tunnels makes entire cities the equivalent of human shields. Even if Israel somehow were more precise in its targeting, "the death toll would still have been in the thousands and the scale of destruction would not have been significantly different," writes Anshel Pfeffer.
The blame for the suffering in Gaza lies with Hamas for breaking the ceasefire, attacking Israel, and ending the seven-day humanitarian pause by refusing to release hostages as agreed upon.
I shudder to think what the world would look like today if TV was ubiquitous in the 1940s and we saw the suffering and destruction allied bombing campaigns inflicted on Germany--and well-meaning people urged us not to defeat the Nazis to spare innocent Germans from suffering.
The death of every innocent civilian is a tragedy, but as Yehuda Kurtzer wrote, "just wars" are "not just because they are easy or victimless. Just wars are just because they are morally necessary, because pacifism in the face of an unfettered evil is an untenable moral position."
National Security Spokesperson John Kirby said on Thursday that the war could end today if Hamas laid down its arms, turned over those responsible for the October 7 attacks, and freed the hostages. If you don't think we can realistically expect Hamas to do that, then congratulations--you understand why Israel must fight and why a ceasefire is out of the question.
The Biden administration is trying to broker another pause to release more hostages. Let’s hope Hamas agrees. On Friday, Israel's security cabinet approved opening the Kerem Shalom crossing for direct delivery of humanitarian aid into the Gaza Strip.
Another week of Republican nonsense. President Biden proposed an unprecedented emergency aid package to Israel, Ukraine, and other allies that included $14.3 billion for Israel on October 20. Nearly two months later, Republicans have yet to call the entire package for an up or down vote. What are they afraid of? That it might pass? That some Republicans might vote “no” and we’ll see the GOP for what it is?
Instead, Republicans are wasting our time on sham impeachment proceedings, inane investigations of Hunter Biden (which they refuse to hold in public for fear that Hunter will make fools of them), and week after week, forcing the House to drop everything to vote on tough-sounding but vacuous resolutions designed not to solve problems but to provide Republicans with “gotcha” moments in 2024.
Last week, Republicans brought forward a resolution on college antisemitism introduced unironically by Rep. Elise Stefanik (R-NY), who supports Great Replacement Theory, the same racist, antisemitic conspiracy theory that the shooter who killed ten Black Americans in Buffalo believed in. Rep. Jerry Nadler (D-NY) said in response that “it is not enough simply to condemn antisemitism, as we have in toothless resolution after toothless resolution—and as the House has yet again today.”
The resolution is flawed on the merits, but the main reason most Democrats voted against this non-binding resolution was that Republicans who themselves regularly condone and engage in antisemitic rhetoric are doing nothing to support efforts to fight antisemitism and are using these resolutions as smoke screens to hide their perfidy.
The #2 House Democrat, Rep. Katherine Clark (D-MA), called on House Republicans “to advance serious solutions,” noting that “instead of advancing funding for the Department of Education’s Office for Civil Rights or the White House’s National Strategy to Counter Antisemitism or calling out white supremacy when their own party promotes it, they are playing political games.”
If you have 60 seconds, watch Rep. Sean Casten (D-IL) explain why he voted against Stefanik's resolution. If Republicans were serious about condemning antisemitism they'd start by condemning Donald Trump's antisemitic rhetoric and the antisemitism rife within GOP congressional leadership, including from Stefanik.
But what about those college presidents? As I explained last Sunday, and as Jay Michaelson explained last week, the college presidents were right to cite context but gave emotionally and politically inept answers. There is no context in which calling for genocide is morally acceptable. But context matters under First Amendment analysis when determining whether such speech can or should be prohibited, and by extension, to campus codes of conduct written to mirror legal and constitutional requirements. I don’t know why the concept of context is hard for some people to understand.
Have you ever read the International Holocaust Remembrance Association’s non-legally binding working definition of antisemitism (the IHRA definition)? According to the IHRA definition,”calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion” “could, taking into account the overall context,” be antisemitic. (Emphasis added.)
But not necessarily–that’s also true under the IHRA definition of holding Israel to a double standard, comparing Israeli policy to Nazis, and “denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor’.” It all depends on context according to the IHRA definition. And who determines context? The IHRA definition is silent about that.
Maybe Stefanik should force those who want to codify the IHRA definition to testify before her star chamber. Or better yet, maybe those who support the Anti-Semitism Awareness Act and other efforts to back-door the IHRA definition into a legal standard should read what they are advocating for.
The question college presidents were asked was not whether calls to genocide are wrong or antisemitic, but whether they are permitted on campus. Here too, context matters, for similar reasons. I found Ken White’s analysis persuasive (read it now if you missed it last week), and yet I was not comfortable with it. Even many private universities model their codes of conduct on legal standards, including the First Amendment, that permit hateful speech–including, in some contexts, calls for genocide. Part of a college education includes grappling with uncomfortable and offensive ideas, but calls for genocide? Even if those calls don’t present an imminent threat of physical harm? The First Amendment protects the right of Nazis and the Ku Klux Klan to march in public, but even on campus?
A college campus seems different from a public square but I couldn’t put my finger on the difference last week. After he read last week’s newsletter, one of the nation’s foremost authorities on constitutional law and the First Amendment, Northwestern School of Law Professor Martin Redish, emailed me and provided the missing piece of last week's analysis. What follows is a truncated, lightly edited version of his email (any errors are mine).
Universities are in many ways the essence of free expression—the free and open communication of information and opinion by knowledgeable professors to their students. This is free expression—both in practice and in foundational value—at its core.
But when universities allow speakers and/or student groups committed to the imposition of harm on groups which include students at that university, performance of the essential university function is inherently and inevitably undermined, if not destroyed.
Unlike in the traditional public forum, performance by the university of its essential free expression function cannot be successfully conducted when a pall of intimidation pervades the campus. Unlike the audience in a traditional public forum, students are in effect a captive audience. The Supreme Court has defined “public forum” in functionalist terms—i.e., when uninhibited speech undermines the state’s performance of the function of the forum, it is not deemed a true public forum where speech is “uninhibited, robust and wide-open.” Thus, while Penn’s president’s statement that First Amendment protection depends on context when we are discussing a true public forum, she was wrong in describing the university context. It is not appropriately deemed such a forum.
To be sure, a state university is a partial public forum; thus, the university may not prohibit a speaker or a student group merely because it deems their position incorrect or offensive. But when that speaker or group advocates a position that reasonably can be taken as intimidation to members of vulnerable groups of students, the university (again, even public universities) has the power—indeed, the obligation—to assure the effective performance of the educational process. This demands that vulnerable students not be living and functioning in a state of intimidation.
Thus, universities may prohibit a student Ku Klux Klan group, or a student brown-shirted Nazi group, even though the state cannot prohibit such groups in a true public forum. Nor does a public university’s press need to publish a book advocating a return to race-based slavery or another holocaust. Universities have recognized this obvious constitutional precept in the context of other vulnerable groups. It is time they recognized it for Jews. But to view even public universities as the equivalent of a street corner is to place a square peg in a round hole.
The advantage of free-speech absolutism is that you don't face the question of who decides which speech is permitted. But even the exceptions that free-speech absolutists accept require judgment calls. The answer is to err on the side of free speech but to recognize that there is a line, and that the line may be drawn in a different place on campus than off campus. If the university goes too far in restricting speech, the answer is litigation. If it does not go far enough, the answer is political or financial pressure.
Corrections. I'm entitled to my own opinions but not to my own facts, so I appreciate it when readers bring errors to my attention. In the second paragraph of last week's newsletter, I wrote "protected silence" when I meant "protracted silence."
In Case You Missed It:
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Shaul Maggid: Anti-Zionism = Antisemitism isn't just wrong, it's the problem.
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Alexandra Petri: GOP baffled that ‘We Don’t Care if You Die’ is not a winning slogan.
- If you heard the out-of-context lifting from a recent speech by President Biden, read all of it.
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Daniel Bral: The best hope for peace is the Israeli left. Don't abandon them.
Tweets of the Week. Joe Biden, Dov Waxman, and Daniel Bral.
Twitter Threads of the Week. Rep. Jamie Raskin (D-MD) to Rep. Elise Stefanik (R-NY) and Jonathan Lord.
Photo Bomb of the Year. Me.
Video Clips of the Week. Difficult family conversations and SNL College Presidents Cold Open. I know some people didn't think it was funny but I thought it was--it mocked everyone who deserved to be mocked; it was not mocking legitimate concerns about antisemitism.
For those new to this newsletter. This is the newsletter even Republicans have to read and the original home of the viral and beloved 2022 and 2023 Top Ten Signs You're At a Republican Seder. If someone forwarded this to you, why not subscribe and get it in your inbox every Sunday? Just click here--it's free.
I periodically update my Medium posts on why Democrats are better than Republicans on Israel and antisemitism and on why the Antisemitism Awareness Act and the IHRA definition are the wrong solutions to real problems. You can read my most recent effort to define "pro-Israel" here (it's a work in progress, as am I).
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