Reconsideration II – See You in Court?

As my regular reader knows, I’ve always been skeptical about turning to the law (either in the form of the courts or legislatures) in order to solve BDS-related problems.

Part of this skepticism is purely pragmatic.  After all, in the few cases where organizations were dragged into court for either implementing or not implementing a boycott or divestment program the organization that did the dragging not only lost but lost big.

True, the number of cases where BDS came before a judge is small.  In Somerville, the city was sued for not allowing divestment onto the ballot (the judge dismissed the BDSers’ suit from the bench).  In Sacramento the Israel haters sued the local food coop for not allowing a member vote on a boycott (a suit which was dismissed with prejudice).  And in the one case where anti-boycotters sued (at the Olympia Food Coop), the result was again a loss for those that initiated legal action.

Putting aside politics for a moment, from a legal perspective these cases seem to have established (or demonstrated) a precedent that says courts of law are ready to give wide latitude to civic institutions to police their own affairs.  And, if the recent decision by a court in the UK to uphold a university’s choice to cancel a conference on “Why Israel Deserved to be Destroyed” (or something along those lines) is any indication, it seems as though the deference judges show to civic groups transcends national judicial systems.

Moving back to politics, suits and government-backed punishments also tend to provoke a backlash – giving those who should suffer for their boycotting behavior the opportunity to present themselves as martyrs.  The best example of this is the American Studies Association (ASA) that took real heat as fellow academics, college presidents and much larger academic associations all lined up to condemn their anti-Israel boycott.  But once state legislators got into the act – proposing cutting off funding to schools that maintained institutional membership in ASA – suddenly the debate shifted to whether or not ASA (not the Israelis they proposed boycotting) were having their academic freedom squelched.

All that said, a panel on legal matters at the StandWithUs conference I participated in a few weeks back got me re-thinking a number of issues.  And, unlike my “BDS is a loser” theme which – despite self-questioning and discussion – I still think is important and useful, on the subject of law it’s clear that my dislike of substituting legal for political action has given me too narrow a view of legal challenges and options.

Most importantly, it’s clear that the other side has no problem “lawyering up” as they go into battle.  Many have wondered, for example, how Students for Justice in Palestine (SJP) can get away with the atrocious behavior they routinely demonstrate on campus.

One answer has to do with our old friend ruthlessness.  For in a society, such as a college community, that values discourse and assumes people will resolve problems reasonably and amicably, how do you deal with an organization ready to trash the entire enterprise in order to torture and smear their political enemies?

But, as has been demonstrated at schools where administrators were roused to take action against SJP chapters that behaved particularly egregiously, once punishments were announced, in marched Lawyer’s Guild and ACLU lawyers (usually working for SJP pro bono) to threaten school leaders with legal action if they didn’t reverse their decision.  And, as anyone who has ever interacted with such leaders will tell you, avoiding bad PR and lawsuits is a top priority.  So if SJP misbehavior must be tolerated to avoid landing in court or appearing in headlines, so be it.

But, as I discovered in LA, this same dynamic works both ways.  For example, when Jewish students decided to exercise their free speech rights by protesting against Megan “Blood Bucket Challenge” Marzec at Ohio University, Ms. Marzec (President of the Student Senate) had them arrested.  And the only reason the school dropped every charge was that pro-Israel students were provided legal counsel which meant Ohio University did the right thing in order to avoid having to defend their choices in court.

This is the most obvious example of situations where our side clearly needs both legal advice and legal advocacy.  And in a world of “lawfare” where Israel’s enemies are constantly devising ways to pervert the rule of law for their own political advantage, it would be a case of political malpractice to not “lawyer up” ourselves in order to fight these battles with the right expertise on our side.

How then to distinguish when “going legal” makes good sense vs. being the wrong choice?

Like most challenging decisions, there is no right or wrong answer to this question.  But I think some things we can ask ourselves as we navigate decisions should include:

  • Is a legal or legislative option our only choice, or are we looking to judges and legislators to solve a problem that would be time consuming and difficult to tackle politically? If it’s the latter, we should express requisite annoyance, but then do the heavy lifting needed to fight a political fight, rather than take a legal shortcut that can have negative consequences if we lose (such as setting legal precedent that cannot be easily undone).
  • Is this really a legal issue? In our hyper-litigious age, every problem can be posed in terms of legal rights, and every challenge is one where legislators are eager to pander to a constituency.  But before we accept the notion that our problems are legal (rather than political) or say yes to offers to punish our enemies by friendly politicians, we should again determine if we are really dealing with a legal problem that requires a legal solution (as well as think about whether such a route might have unintended negative consequences)
  • In situations (such as those involving harassment of students on college campuses) we should ensure parity (if not overwhelming superiority) between our side and theirs regarding legal representation. As mentioned earlier, school administrators are likely to cave to whoever sends them a legal notice, and while this knowledge must be used judiciously, when we decide to take action we should do so with full force.
  • As with any strategy we pick, we need to minimize damage to “civilians.” Which means that if a legal option (or any option) stands the chance or harming people who are not directly involved in the conflict, that option should either be rejected or scrupulously analyzed with an eye towards finding less harmful alternatives, lest we end up turning real people into “mere means” towards our ends.

After thinking it through, an increased comfort level with legal tactics represents less a turnaround than an expansion of what constitutes activity needing a political or legal response.  As already mentioned, I still think suing the BDSers or the people and organizations they drag under their tent or calling upon state houses to rain punishment down on our foes leads to bad legal precedent and bad politics (even if we win).  But that does not mean other situations are not entirely appropriate for a legal response.

But at the end of the day, we are in a political battle with a foe whose resources dwarf our own.  But just as the IDF has kept much bigger armies at bay for generation through training, discipline, creative tactics and a willingness to learn from mistakes, so too should those of us defending the Jewish state must be ready to engage in political warfare, even if a legal shortcut looks appealing at any given moment.

PennBDS: Pre-Occupied

This is part of a series of articles based on the program of the upcoming PennBDS conference.  Check out this landing page to find out more.

They recently added a new session to the PennBDS program on “Palestine and the Occupy Movement” (speaker still TBD).  (Just as an FYI, I’m doing my best to write these responses in the order as the Penn schedule, but since that schedule is a moving target I’ll probably wait until the end to arrange them to fit the final program.)

Housekeeping aside, what is there to add to this short piece I wrote on the subject of the interaction between the Occupy Wall Street purposeful un-organization and the highly-organized, highly-motivated and totally ruthless anti-Israel “movement” that today travels under the BDS banner?

Now that “Occupy’s” tents have been un-pitched, it’s worth asking what chance any political project that dedicated itself to avoiding hierarchy had against not just “The Man,” but against ostensible political allies with a far more highly focused set of priorities?

Movements like BDS have a term for people like last year’s Occupy protestors: “Loose Change.”

Generally, this refers to people who show up at a political march or rally, not because they are life-long members of an organization dedicated to that issue, but because they feel a burning need to “do something,” especially in the face of what they perceive to be an injustice. The fact that anti-Israel rallies can attract hundreds or thousands during a period of conflict, but shrink back down to dozens between crises is that during a shooting war ranks temporarily swell with people disturbed by suffering and desirous to “do something,” – anything – to make a difference.

On the whole, these passions are a good thing (even if we might not all agree on the causes the passionate flock to).  But this frustration tends to be directionless – much like the directionless-ness that was frequently commented upon by those trying to figure out what Occupy stood for or wanted.  In fact, the Occupy project’s attempt to build their movement around principles of political anarchism (in which every man and woman was a leader) made it difficult for them to figure out for themselves what the point was of their program, other than to symbolize a general frustration with inequity in our society.

The Israel-haters who pitched their tents within the Occupy camps had no time for such murkiness and ambiguity.  They knew what they wanted – to get the Occupy “brand” wedded to their “movement.”  And they knew how to get it: by insisting that any organization or institution that claims to represent progressive values must buy 100% into the anti-Israel cause (which today includes an embrace of BDS) or be “exposed” as traitors to their own principles.

This is why it was only a matter of time before a subset of protestors left their camp in Boston and stormed the Israeli Consulate, all in the name of the “Occupy” movement as a whole.  Never mind complains and protests within the Occupy group that these decisions were being made by a narrow few (rather than by consensus).  Never mind the symbolism of alleged global activists storming just one consulate (the Jewish state’s) and leaving the rest of the world alone.  Never mind that such an incident helped alienate potential supporters from the Occupy project and provided ammunition to enemies ready to cast it in a dark light.

The BDS crowd couldn’t care less about any of that since, at the end of the day, they got exactly what they wanted: YouTube videos showing off their edgy “direct action,” and the ability to say that they get to speak in the name of the Occupy movement in its entirity.

Remember that this is what the BDS “movement” is all about: not peace, not justice, not human rights, but

(1) the ability to use those virtuous concepts as weapons against a political enemy and (2) the attempt to get those words to come out of the mouth of an institution more well known and respected than BDS itself (which pretty much includes everyone).

This is why BDSers sneak around in the dead of night to try to get their divestment and boycott resolutions passed by institutional leaders behind the backs of the membership (as in Somerville, Olympia and the Presbyterian Church), regardless of the cost to communities.  This is why drag their squalid little divestment resolutions before college Presidents and student councils again and again, regardless of how many times they say no.  This is why they boast of big names like Hampshire College and TIAA-CREF as divestment successes, even though stories of boycott and divestment by those institutions were exposed as fraudulent years ago.

Occupy is not the first progressive movement that’s been co-opted by anti-Israel forces ready to bend other people’s missions to their will.  Look at the Green Party which once managed to field a successful Presidential candidate, now reduced to endlessly trying to shove Israel boycott policies down the throats of an increasingly diminishing membership.   Or the Lawyer’s Guild which, when not acting as consigliere to BDS groups, resembles little more than a rotting corpse with ruthless Israel haters working its skeletal mouth like a hand puppet.

In theory, you can have an organization in which everyone is the leader and everyone the follower.  But in practice there usually ends up being someone ready to insist that their priorities take precedent over everyone else’s.  In those latter cases, what term best describes those who “hang in there” hoping that the virtues upon which their political project was founded will overcome the ruthlessness of those trying to co-opt and manipulate them?

“Optimist” would be generous, and “loose change,” a bit obscure.  But the word “sucker” certainly (and sadly) comes to mind.

So Sue Me

Well the saga of BDS trying to bash its way into the food co-op community seems to have hit its inevitable endpoint as boycott fanatics in Sacramento, unable to force a vote on exiling Israeli goods from the local food co-op, have decided to try to sue their way onto a member ballot.

With all the boycott and divestment stories I’ve followed over the last decade, this is only the second time I can recall that BDS has led to legal action. That other occasion was Somerville, Massachusetts where (as in Sacramento), the local divestment group tried (in that case, unsuccessfully) to use the courts to force the city to print their condemnation of Israel onto a city-wide ballot.

In that case, there was some ambiguity regarding city and state law over the placement of binding vs. non-binding questions onto local ballots, which is why a judge was required to untangle a statuary knot. For the Sacramento Natural Food Co-op, however, I suspect this will end up a civil case turning on whether or not the Co-op followed its own by-laws when rejecting the BDSers request that banning Israeli goods be put to a member vote.

The problem for both plaintiff and defendant in such a case is that a local food co-op (unlike a city or state government or publically traded corporation) rarely invests the time in ensuring governance laws are air-tight with regard to low-probability scenarios. Part of this has to do with resources, but for the most part such organizations can live with a certain amount of ambiguity because of their nature as co-operative civic institutions.

In an organization made up of people who have agreed to work together towards a common good, there is generally enough good will to fall back on when the inevitable conflict arises between members with competing legitimate needs. Thus by-laws, rules and regulations can be kept to a minimum (or at least not enacted or enforced to the nth degree) because, at the end of the day, members understand that their personal needs must be balanced with the concerns of other members (often their neighbors) as well as the needs of the organization as a whole.

But can you see the flaw in such an assumption? For what if some members of a community like the Sacramento Co-op DO NOT concern themselves with the needs of others in any way? What if the fact that many, many members have communicated that they would be appalled at any effort to use the good offices of the Co-op to smear the Jewish state does not move the BDSers one bit? And what if those BDSers could not care less if their efforts created conflict and rancor at a once-friendly community, so long as they could find some combination of rules and regulations that would allow them to get their way, regardless of the damage it caused to anyone else?

You see, loose rules are fine for a community of food co-op members who are ready to make certain sacrifices for one another. But in Sacramento you have the very different situation of a group of BDS activists whose first (and only) loyalty is to BDS. Which means the fate of the co-op means nothing to them since the co-op itself IS nothing to them, other than a plaything they can use to try to rekindle their failed campaign to get boycotts cooking at cooperative groceries.

And thus enough ambiguous by-laws are marshaled to make the case that the co-op is breaking the rules by refusing to put an Israel boycott to a vote (despite any good faith effort the co-op’s leadership might have made to navigate those ambiguous rules themselves while communicating their decision-making process to members). And since the boycotters can always count on pro bono help from members of the Lawyer’s Guild (an organization that long ago disintegrated into little more than the legal mouthpiece for anti-Israel partisans), the co-op is going to have to pick up the tab for their own legal defense (the perfect thing for a small organization to be forced to spend thousands of dollars on).

Coincidentally, I recently gave a talk to a lawyer’s group in which we discussed whether or not BDS required a legal counter-strategy. When asked about this subject, I pointed out that because BDS has failed so spectacularly in the political arena over the last decade, there were actually few if any people against whom to take legal action. And while not averse to the notion of legal activity under any circumstances, I did point out that “going legal” could have a political downside, allowing boycott and divestment proponents to claim that their allegedly legitimate activity was being threatened by threats of a suit.

In the case of Sacramento we should keep in mind that this legal vs. political sword cuts both ways. Which means we should make sure that every co-op in the land now fully understands the type of ruthless insensitivity that accompanies demands for anti-Israel boycotts or boycott votes at their institutions.

After all, the boycotters always have the option to stop buying Israeli products themselves (a decision they have no doubt already made, but no one cares about). They could also start their own Israel-free co-op and indulge in all the boycotts they wish (although this would involve doing something constructive with their energies, rather than just torturing their neighbors). Finally, they could put their efforts into helping Israelis and Palestinians work together towards a common future. But, as was pointed out earlier, those working towards peaceful co-existence are now a target, not an alternative, for a BDS program that laughingly insists it be treated as a “peace movement.”

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.


The Union Label

When divestment began to get its hooks into UK labor unions 5-6 years ago, local BDSers crowed that it would only be a matter of time before American labor took up their anti-Israel calls. “Good luck with that,” I recall thinking at the time, remembering my visit to AFL-CIO headquarters back in college where I was greeted in the lobby by a gigantic bronze statue of former Israeli Prime Minister Golda Meir.

Because of their self-image as warriors attacking Israel from the left-end of the political spectrum, the boycott brigade spends much time gnashing its teeth about the support the Jewish state receives from Evangelical Christians. Lost in this posing and positioning is the fact that there is one group even more dedicated to Israel’s success and survival than religious Christians: the US labor movement. The AFL-CIO continues to be the nation’s large holder of Israeli bonds, labor leaders are routinely on the speaker’s list at national and local pro-Israel events, and the missing variable explaining why both the Democratic and Republican parties remain equally supportive of the Jewish state is that both parties have key constituencies (unionized workers for the Democrats, Evangelicals for Republicans) solidly friendly to Israel.

The friendship between US labor and Israel is longstanding, dating back to the years when Israel’s founders (primarily Labor Zionists) created a nation devoted just as much to labor as to Zionist principles. The fact that the US union movement (unlike their equivalents in Europe) never succumbed to the lure of radical politics also immunized them from far-left influence once the Soviet Union decided to become the key sponsor of Israel’s foes in the propaganda wars that heated up in the 1960s and 70s. When US unions have briefly entered the divestment camp, they’ve tended to come from “alternative” professional unions (like the Lawyer’s Guild, a left-wing alternative to the more mainstream American Bar Association).

This brings up an interesting issue, given that divestment activity tends to also be strongest abroad among professional unions (notably academics, such as the British University and College Union or UCU) vs. traditional workers groups. While I’m no class warrior (given that I represent the middlest of the middle class myself), it’s hard not to notice that divestment (and anti-Israel agitation in general) tends to primarily be a bourgeois affair.

In a way this makes sense since radical politics in the 21st century tends to be strongest in middle class institutions (notably expensive universities or East and West Coast “high” Protestant churches). Noam Chomsky (a neighbor of mine in the Massachusetts suburbs), the late Edward Said (whose pro-Palestinian politics always took a back seat to his comfortable New York life), and the rest of the Israel-bashing professorate represent the ultimate example of the “bourgeois jihidi:” highly-paid, highly-comfortable loudmouths whose every utterance is protected behind the blast shield of tenure (a life employment deal that even the most powerful unionized American auto worker would envy).

Having more than a passing familiarity with the stability that the growth of a middle class brings to a society, I am in no way dissing the class into which I was brought up and where I firmly remain. And yet, having lived all my life in a middle class milieu, I also recognize that some of the worst ideas I’ve ever encountered (ranging from simply wrong-, to full-fledged dick-headed) tend to emanate from my fellow suburbanites. Perhaps the comfort we (or, more accurately, our predecessors) achieved gives many of us the free time or lack of perspective to demand others (such as Israelis) take risks that we would never think of putting ourselves (or our families) in. Or perhaps we have forgotten the lessons taught by those who came before us (like our grandparents who started the US labor movement), assuming instead that our current blessed state is something we achieved by our own righteousness, an amnesia that allows a small subset of us to dedicate its considerable free time to politics based on attacking those who would defend themselves, simply to work themselves into the ignorant self-righteous fury that is the alpha and omega of their political self image.

Clearly the labor movement in America, Israel, Europe or anywhere else in the world is startlingly different at the beginning of the 21st century than it was throughout most of the 20th. And yet even when faced with challenges and decline, even when tempted by those who still dangle revolutionary baubles in their faces, American labor continues to be part of the vast majority of Americans whose support for the Jewish state is deeply embedded in both their heads and hearts.

One of my favorite moments during a five-year battle against divestment took place at a meeting in City Hall at Somerville, MA where the aldermen were debating a municipal divestment motion. Along with various other pro- and anti- divestment speakers, the group that stood out consisted of a half-dozen burly pipe-fitters, carpenters and machinists from a local labor federation who expressed in the clearest possible words the monstrosity of the divestment resolution the city was debating. While I didn’t know it at the time, the jig was clearly up the moment the only people in the room who worked with their hands for a living told divestment advocates to stuff their resolution where the sun never shines (except perhaps on those nude beaches where divestment’s academic backers occasionally vacation during six- or twelve-month sabbatical breaks from work).