National Lawyer's Guild - Take 2

A commenter (and National Lawyer’s Guild member) posted an excerpt from one of the many long-winded NLG resolutions condemning the Jewish state for every crime ever conceived (including a re-affirmation of the UN’s infamous and odious Zionism=Racism resolution). 

I’ll leave it to readers to determine how much this and other trillion-word tirades written by the likes of NLG Middle East Committee Chair Charlotte Kates represents the view of the legal profession.  But for now, it’s interesting to note how little the Guild’s “legal advice” to divestment advocates or any of their Middle East resolutions has anything to do with actual (vs. imagined) law.

Their divestment brief is a good case in point.  On one level, they do spell out legal issues divestistas need to be aware of (such as Department of Commerce regulations on participation in the Arab boycott of Israel, or the fiduciary responsibilities of investment managers).  But from there, they take off in a direction that can only be described as political opinion.

I’ve already mentioned that the view of a fringe lawyer’s organization on what constitutes a safe vs. unsafe investment is, at best, an uninformed financial opinion, no more or less worthy than those of anyone off the street when compared to the informed opinion of actual investment managers (informed, one would expect, by their own professional council).

But looking through the Kates/NLG tirade, one is hard pressed to find anything resembling historic fact, much less sound legal reasoning.  In fact, the thing that stood out most to me about the Guild’s divestment piece was its willingness to get into minute legal detail when arguing that divesting from Israel did not contravene US  laws or regulations, only to swallow whole (or at least to ask their readers to swallow whole) the conclusions of one of the most notorious extra-legal documents of the day: the UN Human Rights Commission’s Goldstone Report.

Different people can have different concerns over the strength and weaknesses of this and other UN documents in terms of accuracy, fairness, et al.  But for an alleged legal “guild” to embrace legal discourse when it suits its purpose, only to sacrifice the precise language of the law for uninformed partisan posturing when that gets the job done simply points out that the National Lawyers Guild, despite its name, is not actually the legal association it pretends to be.  Rather, it’s a political organization (and a pretty fringe one at that) that uses its status and the legal skills of its members to get the political job done, regardless of whether or not that strengthens or subverts the rule of law.

The landscape is littered with organizations that have gone down the tubes clutching onto their anti-Israel animus as their head goes under for the third time (anyone remember the Green Party?)  The NLG seems to have some staying power, even if only as an irrelevancy, or at minimum an example of the kind of illegitimate husk that remains of an organization once the cancer of divestment has spread completely through it.

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.

Unpacking the PACBI Excuse

In my last entry, I pointed out the various excuses the boycott-Israel crowd uses when forced to confront their clear double-standard on human rights stances (i.e., Israel deserves to be boycotted for building a separate fence to keep suicide bombers from its cities, but Syria and China should not be boycotted since they merely killed 50,000 or 70,000,000 of their own people).

As noted, most of these excuses have the distinction of being both transparently self serving and unbelievably lame. But one “reason,” the one claiming that the call to boycott Israel wells up from Palestinian civil society and is thus unique, begs for a more careful review.

The claim that BDS is a response to boycott calls originating from people in the region is based on the 2004 Palestinian Campaign for the Academic and Cultural Boycott of Israel (or PACBI). Whenever Naomi Klein or the UCU boycotters talk about a boycott call endorsed by over 200 Palestinian civic organizations, these are the organizations to which they refer.

Before getting to more meatier issues, allow me a couple of lawyer’s points regarding the claim that PACBI represents the will of the Palestinian people to comprehensively boycott, divest from and sanction Israel.

First off, if you look this list over, between 10-15% of the signatories whose origins are identified are from outside Israel, the West Bank or Gaza, including over 20 organizations from surrounding countries (13 from Syria, 6 from Lebanon and 2 from Jordan) and another 9 from Europe or North America. Now it may be that some of these (as well as some of the organizations not identified by location) are refugee or Diaspora groups, but given the large Syrian contingent in PACBI’s roster, the notion that we’re talking entirely about un-coerced volunteers becomes shaky.

Second, as the name implies PACBI stands for an academic and cultural boycott (the least popular form of BDS, by the way), not for the wholesale economic isolation of the Jewish state. So those claiming that PACBI is the origin for all of their BDS activities may be putting words into the mouths of Palestinian agricultural, medical and industrial unions/organizations, many of whom may not be that excited about economic boycotts that punish them as well as Israel.

On more meatier matters, the first group that tops the list of “Unions, Associations, Campaigns” supporting the PACBI boycott call is the Council of National and Islamic Forces in Palestine, a coalition that includes Hamas, the Popular Front for the Liberation of Palestine and some of the more violent sub-sets of Fatah. Call me crazy, but I suspect that it’s much easier for this Council to get the Palestinian Dentist’s Association to agree to its requests that vice versa.

The potential that the PACBI boycott call arises from coercion within Palestinian society (vs. being a consensus welling up from the grass roots) also points out an interesting paradox. The claim that Israel uniquely deserves the BDS treatment is, to a certain extent, based on Israel supposedly being exceptional with regard to its level of human rights abuses (vs. Iran, China, North Korea, etc.). And yet the members making up PACBI can only be seen as legitimately representing Palestinian civic society if Israel’s “repression” does not extend to eliminating such civic space in both Israel and the West Bank.

Like the claim that Israel is inflicting a “Holocaust” on a Palestinian population that is simultaneously experiencing a population explosion, the very existence of PACBI demonstrates that the level of repression found in countries ignored by BDS activists (Sudan, Saudi Arabia, etc.) does not exist in Israel. And thus we are led back to the conclusion that the best way to avoid being a target of alleged “human rights” activists pushing boycott, divestment and sanction is to actually be a repressive dictatorship that crushes civic society rather than letting it exist to sign boycott petitions.

Finally, a note on dates. PACBI, as stated on their own Web site, made its “plea” for academic BDS in 2004, years after divestment programs originating at the 2001 Durban conference were well underway in North American and European universities, unions, churches and municipalities. In other words, the PACBI call was the result of the success BDS was seeing between 2001-2004, and being the result it could not have simultaneously been the cause.

Time travel underlies much of the BDS project, as is underlies much of what passes for analysis of the Middle East. My favorite example of this is the projection of today’s US support for Israel (which didn’t really kick into high gear until the 1970s) back to 1948 and beyond in hopes of finding a US-Zionist conspiracy going back to before the founding of the Jewish state.

If ignorance is bliss, then the folks behind the PACBI excuse for BDS are either the happiest people on earth, or at least the most manipulative.

The BDS Double Standard

One of the most common challenges to the Divest-nista crowd is why they don’t call and march for divestment against Sudan, China, Libya or any of the totalitarian dictatorships whose daily human rights abuses dwarf anything Israel could have possibly done over the course of 60 years.

Generally, their first response is to ignore the question and move onto their next accusations (real or imagined) against Israel, hoping that no one will peek behind the curtain. While such stonewalling can work for a while, those trying to sell BDS to the general public must eventually explain the apparent double standard whereby Israel must be punished while its dictatorial critics are left alone. Some of the more easily dismissed excuses I’ve seen from US-based divestniks include:

• 
  Israel is a democracy and thus our protests can have an impact there (ignoring the obvious corollary that the best way to avoid the wrath of these alleged “human rights” champions is to be a dictatorship)
• 
  Israel is an ally of the US, and thus as Americans we are obliged to criticize our friends more than our foes (ignoring the obvious question as to why this hostility does not extend to other US allies like Saudi Arabia and Egypt)
• 
  “Israel receives [pick your sum, ranging from three-billion to eleventy-jillion dollars] in US aid so as a US citizen it’s the use of my tax dollars I’m protesting” (never specifying why a country like Egypt, which receives 2/3 as much US aid as Israel - a formula calculated at Camp David decades ago - receives 0% rather than 66% of the hostility the boycotters direct against Israel).

Clearly, these are just excuses or rationalizations for people who have a political agenda (hostility towards the Jewish state) who feel a need to dress up their attitudes in the ill-fitting garments of legitimate principle. Yet even if such hypocrisy is the compliment vice pays to virtue, the excuses BDSers use to explain their obvious double standards only stretches so thin, often with embarrassing results.

My favorite example of over-reach in an effort to explain away the double standard was the UK academic boycotters who claimed their effort to sanction Israeli universities would be particularly effective because of the Jews unique love and respect for learning. Needless to say, this implied dissing of the scholarly passions of non-Jewish societies did not go over well with the boycotters third-worlder constituency.

Within this rickety pile of excuses, the only one that is backed by enough fact to not be immediately dismissed as a smoke screen is the claim that the call for boycotting Israel welled up from the Palestinians themselves in the form of a 2002 boycott call from the Palestinian Campaign for Academic and Cultural Boycott of Israel (or PACBI). Because the PACBI BDS call (unlike Hampshire College or TIAA-CREF divestment hoaxes) actually exists, poking holes in this argument takes a little more effort. But not much…

Stay tuned.

Quick Takes II

Still a little quiet on the BDS front (although I expect that to change soon enough)...

In the meantime, here's an enjoyable piece about the Israeli distributor of Ken Loach's films who plans to donate all of profits they earn from his latest picture, Waiting for Eric, to the promotion of Israeli cinema around the world. Loach, whose work I've always found a bit heavy handed, is often celebrated for his political stances (and for the fact that he never "went Hollywood") by people who've seen even fewer of his films that I have. But in recent months, he's been the face of the cultural boycott of Israel due to his refusal to take part in film festivals that included Israeli pictures. The Israeli distributor of his latest film has taken the Buycott idea mentioned in my last posting one step further, letting Loach's own art generate the resources needed to cancel out the censorship of other artists the director is advocating.

And speaking of film, I couldn't resist a link to this piece at the equisite UK site Harry's Place. I'm not a big fan of the "If you boycott Israel, you'd better throw out your cell phone" argument since - as has been demonstrated - the BDS crowd lives in a fantasy world where only other people must sacrifice for their political beliefs. But this piece has a nice edge to it and hits a number of strong notes that make it worth a read.

Ciao for niao.

Quick Takes

I got something in the Forward today, a response to a particularly wrong-headed "Divestment's got the wind at it's back" piece a few weeks back by one of only a handful of writers (thankfully) who fell for the whole TIAA-CREF hoax.

Meanwhile, an interesting development among our friends in the Great White North who have just started a Buycott campaign to counter some of the more egregiuos boycotting activities that have been taking place in Canada over the last couple of years.

Gimmers of sunshine always help on a dark day.

Stopping the BDS Rot

The Forward published a piece recently highlighting the divestment “movement’s” hypocrisy in demanding the world boycott Israeli universities while simultaneously demanding that boycotters who teach or attend these schools continue to enjoy the privileges of a subsidized education or tenure.

Ha’aretz had an equally entertaining piece on the BDS crowd’s willingness to latch onto and wreck the work of others (such as the organizers of the Toronto Film Festival) just to score political points (which they never notice they lose when people flock to Israeli movies or buy out Israeli goods).

I know a familiar tactic to counter BDS is to point out the host of Israeli- or Jewish-created goods and services surrounding the divestnik’s life (Intel processors, cell phones, instant messaging, Wassermann tests) and show what they’d have to give up in order to truly live by their creed. But as I’ve stated before, objective reality has nothing to do with the motivation behind BDS.

If I could definitively prove that their actions would lead directly and inexorably to the death of millions of innocents (even better, millions of Palestinians – whose lives they claim as their moral loadstone), they would not budget one millimeter in their trajectory. For Palestinians, like Israelis, like Americans, like virtually everyone in the world are simply props to their storyline, a story that casts them as the avenging revolutionary: aging, paunchy perhaps, but still on the vanguard of some great and noble battle.

I’ve commented on this type of fantasy politics before, and while I prefer papers like the Forward having fun at the divestor’s expense (vs. falling for and disseminating their hoaxes), they miss a couple of more troubling points.

First off, fantasy politics is not something to be shrugged off because of the inconsistencies it invariable generates. Rather, people being able to commit deeds ranging from inconsiderate to pure evil while convincing themselves of their unquestionable virtue is the bane of our civilization, and the driver behind history’s darkest moments. The worst acts of brutality ever committed were not performed by people who saw themselves as wicked or sinful. Rather, they were committed by people who knew in their heart of hearts that all goodness resided in them (which made stamping out what they considered “evil” to be a moral imperative, no matter what the cost). Consider that the next time you watch a BDSer turn their head with indifference to the suffering of anyone in the world that does not serve their political purposes.

On a more practical matter, there is an increasing tendency to let the marginalization of BDS justify any attack on Israel that does not include a boycott or divestment component. In the month of Goldstone, we’ve already seen sentiments along the line of “of course Israel is guilty of x, y and z…” (x, y and z being a series of increasingly unverified and unfounded accusations of criminality and brutality), “…but we should not boycott them (at least for now).”

While I’m happy to see that many Israeli bashers recognize that something exists (in this case boycott) that are still beyond the pale, I would prefer that they (as well as the general public) recognize that divestment is not the bastard cousin of the “Israel is guilty! What was the charge?” crowd, but simply the purest expression of a sentiment they have let loose in the world.

The language of human rights and international law, the alleged defenders of those principles like the UN and Amnesty International, well-meaning civic institutions such as the Mainline Protestant Churches or British trade union movement have all been corrupted, their principles sacrificed in order to create a world where Israel will be perpetually in the dock. Even if none of this ends up in real (vs. fraudulent) boycott, divestment or sanctions (at least today), BDS should provide a warning smell of the rot spreading through the very institutions meant to protect those who need protection the most.