Monday, October 26, 2009

A Fool for a Client - The National Lawyer's Guild's BDS Advice

The National Lawyer’s Guild (NLG) has published a helpful guide to the happy-go-lucky boycott, divestment and sanction brigade which purports to help them avoid BDS activity that might land someone in court.

Like many “alternative” unions (NLG is basically a left-leaning “answer” to the more established and establishment American Bar Association), the Lawyer’s Guild has gravitated to international affairs over the years. And like the rapidly-vanishing US Green Party, they have chosen to advocate (literally, in their case) for the cause of divestment from Israel.

I’ve only encountered members of The Guild up close on one occasion, when they failed to sue a divestment motion onto the a city-wide election ballot in Somerville, MA. Otherwise, they are simply the example I use to illustrate marginal organizations that have taken an official BDS position that no one notices.

Their document begins by providing the NLG’s interpretation of whether or not BDS runs afoul of US anti-boycott law. It then addresses how to deal with companies or institutions that claim politicized divestment decisions might contravene the fiduciary responsibilities of institutional investors. In English, that means managers of retirement and other types of funds have a responsibility to make responsible financial investments (not political statements) on behalf of their clients.

I’ve addressed the first point here, and while it would be interesting to see what happened if a company got hauled into court for violating the 1979 Export Administration Act (with a discovery process that forced organizations to reveal whether or not they had specific ties to Middle East governments, an critical issue covered by the Act), here on Earth (as a lawyer might say) the point is moot.

It’s moot because (1) to date there have been no organizations covered by the Act (i.e., US corporations) that have divested from Israel and (2) as far as I know, there have been no instances where anti-divestment activists have taken legal action against BDS in any way, shape or form. We’ve (successfully) challenged divestment politically, intellectually and morally, but so far no one seems to have been brought to court.

The fiduciary argument is a bit murkier since all the Guild is saying is that divestment advocates should tell their targets to switch from one specific (Israeli) investment to another non-Israeli investment in a way that is neutral in terms of risk and reward. But, at best, this can be considered a tactical suggestion for divestniks, rather than a well-reasoned piece of legal advice. For what constitutes a safe vs. an unsafe investment is a matter of opinion, one in which the NLG’s unsolicited, generic third-party legal advice would have to take a back seat to the legal and financial opinion of those responsible for managing a fund or other investment.

Personally, so long as divestment continues to lose so badly that they have to create hoaxes in order to win some headlines (any NLG advice to the BDS crowd on how to commit or avoid fraud?), I don’t anticipate a situation where taking anyone to court will be a necessary (or appropriate) strategy.

But this does bring up an interesting point that BDS activists would actually not be the ones to face legal consequences if they managed to convince a company, university or other organization to follow their program. Rather, it would be the investing/divesting institution that could find itself facing US Department of Commerce scrutiny, shareholder lawsuits or condemnation in the press.

That being the case, shouldn’t the NLG (which claims to represent the rule of law) suggest a policy of honest transparency to their BDS colleagues on the frontline? After all, since it will be investors who have to deal with the fallout of divestment decisions, don’t BDS advocates have a responsibility to let those investors know the risks they are taking by following BDSers suggestions?

I’ve seen too many occasions when some narrow political organization got a major institution (the Presbyterian Church, the City of Somerville, etc.) to flirt with divestment, only to let the church, town or other institution suffer the consequences of having taken the divestnik’s advice. Perhaps we could take BDS (and the National Lawyer’s Guide) more seriously if they were not both seeming to conspire to convince a third party to commit an act that is likely to be embarrassing, damaging, costly and (regardless of NLG’s opinion) potentially illegal.

Continued...
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4 comments:

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  2. Its worse than you can imagine. I'm a Guild member, and in 2007, a referendum was put to the rank and file:

    NLG Resolution Commemorating The 60th Year Of Al-Nakba: Condemning Zionism As A Form Of Racism

    WHEREAS , in 1948, nearly sixty years ago, Palestine was cleansed of, at least, 75% of its indigenous Arab Palestinian population, in an on-going genocide, by Zionist forces seeking to establish the exclusivist colonial-settler state of Israel, an event known as al-Nakba (the Catastrophe) among Arab Palestinians; this took place through a deliberate, planned and military executed policy of the expulsion of over 800,000 Palestinians from their homes, lands, and properties in 78% of historic Palestine, the attempted destruction of Palestinian national identity and culture, and the imposition of military rule over the vast majority of historic Palestine, and over the objections and without the c onsent of the indigenous Arab people of Palestine, and

    WHEREAS , Al-Nakba cannot be de-linked from Al-Naksa (the Setback) which occurred in 1967 when the remaining 22% of historic Palestine, the West Bank and Gaza Strip, as well as the Syrian Golan Heights and the Egyptian Sinai, were placed under Israeli military occupation, in an aggressive military assault which resulted in another wave of Palestinian refugees, and

    WHEREAS , a 1948 NLG resolution expressly supported the Zionist forces, including, Haganah by seeking to: "allow the shipment of arms to those [Zionist] forces within and without Palestine" and "equip Haganah and other recognized co-operating forces…to defend the Jewish State and help implement the partition plan." This 1948 resolution also reveals the NLG "sent a delegation to the UN Security Council to…declare the actions of the Arab states a threat to peace" and "demand Britain [hand over their] strategic positions" to "local [Zionist] militia…to prevent Arab infiltration of men and arms into Palestine." Further, this 1948 NLG resolution sought to permit U.S . based Zionists to travel to Palestine to fight with Zionist forces against the indigenous Palestinian Arab population resisting Zionist occupation. Even after the world witnessed the genocidal cleansing of Palestine the NLG issued resolution in 1950, buttressing its 1948 resolution by "deploring US policy to prohibit arms sales to Israel," and

    WHEREAS , the United Nations Committee on Economic, Social and Cultural Rights: Israel. 04/12/98. E/ C.12/1/Add. 27 (Concluding Observations/ Comments) (excerpts), state: "The Committee notes with grave concern that the Status Law of 1952 authorizes the World Zionist Organization/Jewish Agency and its subsidiaries, including the Jewish National Fund, to control most of the land in Israel, since these institutions are charter ed to benefit Jews exclusively, "and

    WHEREAS , Israel's definition of Zionism, is consistent with the World Zionist Organization (WZO), as expressed by Israel's prime minister Ehud Olmert, who stated that: "Zeev Jabotinsky defined the importance of a Jewish majority in his insightful and keen way: "The term 'Jewish nation' is absolutely clear: it means a Jewish majority. With this, Zionism began, and it is the basis of its existence, it will continue to work towards its fulfillment or it will be lost," and

    It goes on and on.....
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  3. Lo have the mighty fallen - in 1948 they supported the establishment of Israel, and now they've slid into vile anti-Zionism. I suspect that the very recent memory of the Holocaust in 1948 led them to support the establishment of the state. Or, perhaps it was simply that the Soviet Union supported it as well...
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  4. The NLG just had their Covention: On their agenda were the following workshops:

    Strategies in the United States to dismantle the Israeli Occupation of Palestine
    This workshop will address strategies in the United States to dismantle the Israeli occupation of Palestine. Presentations will include projects such as: (1) BDS campaign with an overview of the various campaigns in the U.S. and internationally; (2) Campaigns to end the funding of U.S. military assistance to Israel and how to utilize the provisions of the Arms Export and Control Act (AECA) and Foreign Assistance Act (FAA); (3) Discussion of the current congressional lobby projects to end military assistance to Israel; (4) Connections to U.S. Palestinian advocacy groups; (5) Whether there should be a campaign for AIPAC to register as a Foreign Lobby; (6) Whether there is a role for the NLG in the challenges to the tax exempt status of certain organizations raising funds for development of illegal settlements and for the confiscation of Palestinian lands; (7) Whether chapters or law schools should adopt a Palestinian youth imprisoned by Israel to advocate on behalf of. Moderator: JIM LAFFERTY is a legal worker and executive director of the Los Angeles Chapter of the NLG. Speakers: ZAHA HASSAN is a Palestinian-American attorney and activist in Portland. Hassan is an expert on AECA and FAA, former co-chair of the U.S. Campaign to End the Israeli Occupation...
    REEM SALAHI is a lawyer specializing in national security and civil rights.NADA ELIA is Palestinian, was born in Iraq and brought up in Lebanon. Her parents are 1948 refugees. Nada is a professor of Gender and Global Students at Antioch University, Seattle. She is a long time activist with INCITE, Women of Color against Violence, and co-chairs its Transnational Taskforce on Militarism and Occupation. She is a member of the National Steering Committee of the US Campaign for Academic and Cultural Boycott of Israel.
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