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February 26, 2023
Key Takeaways:
- "Pro-Israel" means supporting policies that are good for the State of Israel and that strengthen the U.S.-Israel relationship, not denying reality or blindly supporting the policies of whatever government happens to be in power on either side of the Atlantic.
- The judicial overhaul proposed by Israel's ruling coalition will weaken Israel's democracy and make it harder to defend Israel's actions in international forums.
- Actions that diminish prospects for a two-state solution, including settlement expansion and de facto or de jure annexation of parts of the West Bank, threaten Israel's existence as a Jewish, democratic state.
- The Biden administration averted a diplomatic crisis in the UN by replacing a UN Security Council resolution potentially unfairly critical of Israel with a well-drafted, reasonable statement from the president of the Security Council.
- We should speak out against actions contrary to the values shared by the U.S. and Israel while continuing to support Israel's safety and security.
- The U.S. Supreme Court once again failed to protect fundamental constitutional rights, this time by refusing to hear an appeal of a lower court decision upholding an Arkansas anti-BDS law. Anti-BDS laws are ineffective, unnecessary, and counterproductive.
- Second Gentleman Doug Emhoff reiterated the administration's support for Israel and commitment to fighting antisemitism during his visit to Chicago on Thursday.
Read to the end for corrections, what you may have missed last week, fun stuff, and upcoming events.
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Hi Steve,
Israel's new government threatens to weaken Israel's democracy and fray U.S.-Israel relations on two fronts: Its proposed overhaul of Israel's judicial system and its refusal to refrain from settlement expansion.
Amir Tibon reports that the judicial changes would allow the Knesset (Israel's parliament) to overrule Supreme Court rulings by a simple majority, forbid the Supreme Court from striking down "Basic Laws" (a term currently undefined), and give the Knesset complete power over judicial appointments (currently made by committee).
Michael Koplow explains the problem with allowing a simple majority of the Knesset to override Supreme Court decisions: "The dynamic of a Knesset majority being indistinguishable from the government means that giving that same Knesset majority the ability to ignore the Supreme Court’s directives turns Israel into a system with one supreme branch of government and with no checks or balances whatsoever." Yuval Noah Harari points out that comparisons between where Israel might be headed and Hungary are inapposite: an undemocratic Israel would be far worse.
It's not hard to see how Netanyahu could use these reforms to keep himself out of jail. Koplow again: "If, for instance, the government wants to pass a Basic Law that Binyamin Netanyahu is prime minister for life...there is nothing to prevent that from happening under Israel’s current structure, but the government’s bill means that going forward, the Supreme Court would not be able to strike such laws down."
But a Get-Out-of-Jail-Free card for Bibi is not the biggest problem. Tibon explains that if Israel's judiciary is not perceived as independent, "Israel would lose international legitimacy for its military operations and would no longer be shielded from accusations of war crimes."
Leading American Jewish organizations are opposing the proposed judicial overhaul or expressing serious concerns, including Jewish Federations of North America, the Conservative/Masorti movement (signed by 15 Conservative organizations, including the Jewish Theological Seminary), the Rabbinical Assembly, the Union for Reform Judaism, the National Council of Jewish Women, the Jewish Democratic Council of America, Young Judaea, J Street, and the American Jewish Committee.
Continued settlement expansion threatens Israel's democracy. The only argument Israel has for applying different laws, including the right to vote, to Palestinians and Jews in the West Bank is that Israel is temporarily occupying the West Bank and Jews living in the West Bank are citizens of Israel while Palestinians living in the West Bank are not. The more the occupation looks permanent, either de facto or de jure, the weaker that argument becomes (which, incidentally, is why it is a mistake to conflate the West Bank with Israel by treating boycotts of the West Bank as if they were boycotts of Israel).
The Biden administration averted a UN Security Council vote condemning settlement expansion, including the Israeli government’s decision to retroactively legalize nine illegal outposts across the West Bank, by persuading Israel to temporarily suspend new announcements on settlement building for several months. (In 2004, Israel agreed in writing to dismantle illegal outposts.)
The administration supported, in lieu of a Security Council resolution, a statement made by the President of the Security Council on behalf of the Council, adopted at a formal meeting of the Council and issued as an official document of the Council, expressing "deep concern and dismay with Israel’s announcement on February 12, 2023, announcing further construction and expansion of settlements [and reiterating] that continuing Israeli settlement
activities are dangerously imperiling the viability of the two-State solution
based on the 1967 lines." The statement is reasonable and well-worded.
The administration's statement supporting the UN statement said that "we strongly oppose Israel’s announcement that it will advance thousands of settlement units. And we strongly oppose Israel’s announcement that it begin a process to retroactively legalize nine outposts in the West Bank that were previously illegal under Israeli law. These unilateral measures exacerbate tensions. They harm trust between the parties. They undermine the prospects for a negotiated two-state solution. The United States does not support these actions. Full stop." (In 2004, Israel agreed in writing to dismantle illegal outposts.)
But on February 23, Bibi granted sweeping governing authorities in the West Bank to Finance Minister Bezalel Smotrich (whose racist comments have been condemned by the ADL, among many others). Americans for Peace Now explain that "the agreement between Netanyahu and Smotrich constitutes a structural change in the way Israel rules the territory it captured in 1967. Instead of the occupied territory being subject to the military commander, as stipulated in international law, civilian aspects of running the occupation will now be directed by a civilian member of the occupying power who is explicitly committed to enhancing Israel’s sovereignty in the occupied West Bank," which is the first step toward de jure annexation. Michael Sfard provides a deeper analysis in this thread.
We cannot ignore these realities. Whatever "pro-Israel" means, it does not mean putting our hands over our ears and shouting "la la la" in response to news we don't like. It means dealing with reality and addressing these issues. What is changing is not the positions of individuals and organizations that are speaking out on these issues but the government of Israel.
The Biden administration continues to support Israel's safety and security and so should we. Commenting on the Israel Defense Forces (IDF) counterterrorism operation in Nablus during which at least 10 Palestinians, including both militants and civilian bystanders, were killed and over 100 injured, the State Department said on February 22 "that Israel faces real threats to its security. We have seen horrific reminders of that even in recent days. Israel has every right to defend itself against acts of terrorism and violence. In doing so...we have encouraged Israel, repeatedly...to do so in a way that minimizes any potential civilian casualties, any potential civilian harm. The death of a single innocent civilian is a tragedy...It is imperative that steps be taken to minimize civilian harm, to minimize civilian casualties. The IDF, and Israel more broadly, have spoken to some of those steps. But again, we urge Israel to exercise caution and to do what it can, while it responds to very real threats to its security, to minimize the possibility of civilian harm."
The question now is what steps the U.S. can or should take if Israel's government continues to undermine prospects for a two-state solution. Pushing a two-state solution further out of reach weakens Israel's democracy and damages the U.S.-Israel relationship, which is why pro-Israel advocates are speaking out against counterproductive actions taken by the government of Israel while continuing to support the safety and security of the State of Israel.
U.S. Supreme Court won’t hear a challenge to loyalty-to-Israel requirements for Arkansas contractors. The refusal of the Trump-packed Supreme Court to take the case lets stand the only ruling in the country in favor of so-called anti-BDS laws. The Supreme Court's non-decision does not alter the status of these laws outside of the Eighth Circuit, nor is the Eighth Circuit ruling binding precedent elsewhere (not that precedent matters to Trump-appointed judges).
Last summer, the Eighth Circuit Court of Appeals, among the most right-wing courts of appeal in the country, ruled that the Arkansas state anti-BDS law was constitutional, making it the first state anti-BDS law to survive judicial scrutiny. All other state anti-BDS laws challenged in court have been struck down. Law professor David Schraub provides a good analysis; the upshot is that the Eight Circuit thinks that boycotts are not expressive conduct and therefore do not merit First Amendment protection.
T'ruah, which does not boycott Israel, points out that "a company that refuses to do business with Jews or with Israeli nationals in the US would certainly be guilty of discrimination based on religion or national origin. Countries, by contrast, are not protected under anti-discrimination laws."
Can anyone seriously believe that boycotts are not speech? T'ruah, for example, has called for "clothing manufacturers to boycott cotton from China, where it is produced through slave labor by Uyghurs." Isn't it obvious that a law restricting the right to engage in a boycott of China would be an unconstitutional restriction of speech? We might not like boycotts of Israel--I don't, and I don't think you do either--but the way to fight them is to argue against them on the merits, not to use the power of the government to shut them down. One day, we could be the targets of government restrictions on speech. This amicus brief explains in detail why the Arkansas law is unconstitutional.
Regardless of whether state anti-BDS laws are constitutional, they are bad policy because they are ineffective, unnecessary, and counterproductive. Anshel Pfeffer explained in 2020 that "the Israel boycott movement is a dismal failure, but the hard-right in the U.S. and Israel is determined to keep it alive" because fear of BDS suits their political objectives.
Pfeffer called the global BDS movement "the most failed, overhyped and exaggerated campaign in the first two decades of the 21st century." Israel's status as "the start-up nation" and economic relations between Israel and its Arab neighbors evidenced by the Abraham Accords is proof of BDS's failure. Not only has "BDS failed on every front, with the minor exception of bullying a handful of singers and academics not to take part in concerts or conferences in Israel, but the 15 years of the BDS campaign had seen an unprecedented surge in Israeli trade and broadening of its foreign relations. If anything had gone global during the decade and a half since BDS was launched, it has been Israel."
But the U.S. Supreme Court refused to take the case. Maybe if Bibi and his friends are looking for judicial systems to reform they can start with ours.
Second Gentleman Doug Emhoff reiterated the Biden administration's commitment to supporting Israel and fighting antisemitism at a lunch in Chicago. Emhoff is playing a major role in combating antisemitism at home and abroad. He was genuine, warm, and funny at the February 23 lunch with Jewish and community leaders, which I was fortunate to attend. In a word, he is a mensch.
As Jennifer Bardi wrote, Emhoff "may have arrived in this position by accident, as a Jewish non-politician whose spouse was elected vice president, but it’s fair to say that Doug Emhoff is meeting his moment. And if American Jews do indeed have him under the microscope, surely they like what they see."
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. No one brought any mistakes to my attention last week, so it looks like last week's newsletter was perfect.
In Case You Missed It:
- As of today, 57 days into 2023, we've experienced at least 85 mass shootings and 6,383 gun violence deaths. The U.S. does not have more mass shootings than any other country because we have more mental illness or play more video games. We have more mass shootings because we have more guns. We have more guns because Republicans refuse to pass reasonable regulation of dangerous products no private citizen should possess.
Tweet of the Week. Arielle Angel.
Twitter Thread of the Week. David Hering (including the replies).
Video Clip of the Week. Richard Belzer: Bob Dylan's Bar Mitzvah (1978).
Upcoming Events. Democratic Jewish Outreach Pennsylvania (DJOP) presents Israel's New Government: The View from DC and Jerusalem on Sunday, March 19, at 10:00 am CT, moderated by Jill Zipin with panelists Rep. Susan Wild (D-PA), who will have recently returned from a J Street Education Fund trip to Israel and the Palestinian territories; Nimrod Novik, Israel Policy Forum’s Israel fellow and a member of the Executive Committee of Commanders for Israel’s Security; DJOP Board member Martin Raffel, previously senior vice president and director of the Task Force on Israel, World Jewry & International Human Rights at the Jewish Council for Public Affairs; and Steve Sheffey (me). RSVP here to get the Zoom link.
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