The Silver Era

What to make of the arrest of NYS Assembly Speaker Sheldon Silver? The allegations against him of taking bribes and kickbacks and trading on his power are certainly serious and distressing. He is accused of steering real estate companies to a law firm with which he was affiliated, in exchange for the firm paying him a substantial sum of money, and for referring patients of a doctor to another law firm with which he was affiliated, in exchange for compensation as well as the grant to the doctor of New York state research funds. Apparently, these arrangements were known for years.

The presumption of innocence should apply, of course, something lost on many people in this age of hysteria, hyperbole and sensational headlines. I cannot comment on his guilt or innocence as all the facts have not yet been adduced, and the media reports do not sound good.

But I am confused. Most of the charges against him are based on the so-called “Honest Services” law which has been roundly criticized by courts and judges for its ambiguity and disconnect from reality. So note the following:

In 2008, the investors in Solyndra donated more than $83,000 to the Obama campaign. One year later, the company was awarded a federal loan in the amount of $532,000,000 (that’s million, quite a return on their investment). That money – our money, taxpayer money – was completely lost in the Solyndra bankruptcy, although it stands to reason that the investors were somehow repaid before bankruptcy was filed. In essence, money goes to political campaign, victorious politician (in the guise of his Department of Energy) funnels money – a lot of money – to that company. Legal? I suppose so. It has never been prosecuted.

The current US Ambassador to France, whose presence at the great anti-terror march was considered unworthy of this great republic, is what is known as a “political appointee.” Jane Hartley was a prodigious fund-raiser for President Obama in the 2012 election, bundling together more than $500,000 for his campaign. She was then appointed Ambassador to France and Monaco (good gig). In essence, money goes to political campaign, and a government job – at taxpayer expense – is awarded to the fund-raiser. Legal? I suppose so. This has been going on forever, under both Republican and Democrat administrations. Some appointees are “diplomatic” (i.e., on the merits, such as career foreign service officers) and some are “political” (i.e., friends of or donors to the president). Hartley’s predecessor as Ambassador to France – he actually spoke French – was co-finance chair of the 2008 Obama campaign. Same deal, in effect. There are hundreds of similar examples that can be cited from across the political world and spectrum.

Is there a difference between these two cases and the Silver allegations? Maybe, but if there is, it is a difference in degree, not in kind. It is the same process. Perhaps in the aforementioned cases, the quid pro quo is not explicitly articulated but is winked at or self-understood; is that really a substantial difference, enough to distinguish between legal and illegal? Perhaps the difference is in timing – there was a delay of 1-2 years separating between the quid and the quo. But does that really matter?

This is emphatically not to say that “everyone does it” and therefore it is capricious to prosecute one when 100,000 could be prosecuted. “Everyone does it” does not make any particular action legal. But “everyone does it” can define what is common custom or, said another way, how modern politics is practiced in America today and probably always.

We should face one simple truth. How many Americans donate to political campaigns without expecting something in return? Sure, there are probably some that love an individual candidate (or hate his opponent enough) that they give on the merits. But the really big campaign money – from Big Oil, Big Pharma, Big Business, Big Insurance, labor unions, teachers unions, environmentalist groups, etc. – is always proffered by those who are demanding something in return. (That is one reason why George Washington decried the formation of political parties, and felt they would promote endemic corruption in American life.)

Thus, people – good people, not necessarily scoundrels – donate to politicians because they want something. Some want a job – ambassador, cabinet, government agency, etc. (A job aspirant called President Coolidge in the middle of the night, and informed him that the Chairman of the Port Authority had just died, and the caller would like to take his place. Coolidge: “If it is all right with the undertaker, it is fine with me.” And Coolidge then hung up.)

Some want legislation passed that will benefit their businesses, give them an exemption from an existing law, stifle their competition, or smooth their way through some regulatory labyrinth. If they do not get what they want, they take their money elsewhere. Some corporations are wealthy (or desperate) enough that they will fund both opponents in a race, hedging their bets while retaining their influence. For some reason, if the money is transferred in an obvious and vulgar way (envelopes stuffed with cash, as in ABSCAM), it is a crime that purports to shock the conscience. But if the money is transferred in a more refined and indirect way – e.g., campaign contributions (or legal fees?)–  then it is construed to be a gracious political donation, protected by the US Constitution and rightfully so, and an indication of the donor’s sophistication and eagerness to participate in civic life.

All want access. And the money, once given to a politician, is his; certainly, if he leaves office, he takes that campaign money with him, in most cases. That can be a nice nest egg.

At the end of the day, however one parses the transactions, money is being assigned from one person to another in exchange for an imminent or expected benefit. Yet, one is legal and one is illegal. One person is deemed a criminal who deserves prison time and one person gets to spend time with the president and nights in the Lincoln Bedroom. That seems arbitrary, too fine a line on which to prosecute, convict and send someone to jail.

Other issues need to be understood as well. To a layman, the notion of “kickbacks” smacks of illegality and corruption. But in law, referral fees, as they are known, are a legal and accepted way of business. A lawyer without expertise in some area refers a client to an attorney who has expertise in that area, and receives a share of the fee in return. While a lawyer may not give a referral fee to a non-lawyer, it is legal and ethical to give it to a lawyer. That is part of the practice of law. Although the Code of Professional Responsibility requires that the referrer do some “reasonable” work on the case, the standard is very loose and rarely enforced. And even if it is: the law states that such applies to a lawyer “who is not a partner in or associate of the lawyer’s law firm.” But Silver wasn’t an outsider; he was a lawyer referring clients to firms of which he was a member. The standard is different.  Moreover, lawyers are routinely hired by firms for their ability to bring in new cases and clients. This is not sinister. This is business. And state legislators are allowed to earn outside income.

In effect, in one case, Silver allegedly referred real estate companies to a certain tax abatement law firm. That firm transacted legitimate business on behalf of those companies – business in which Silver was not involved – and for which the law firm paid Silver a salary. A further allegation is that Silver then used his position to enact legislation of some sort that would benefit those companies. Duh. Is it illegal – has it ever been prosecuted – for a teachers’ union (for one example) to give money to a politician in exchange for a bloc of votes and a favorable contract? Of course not. And that contract then provides the teachers (and the union) with more money to give to more politicians for more votes and an even more favorable contract! In New Jersey, the contract even mandates that the state (i.e., the taxpayer) essentially pays the union dues of each individual teacher. Other interest groups donate money in the hope of enacting favorable legislation. This happens every single day. When did the rules change?

Did Silver funnel state money to the doctor whom he persuaded to refer to his patients to a particular law firm? Well, assuming it is true, that might be questionable, but we should ask: did the doctor apply for those research funds properly? Did he receive the money and do the research? Was Sheldon Silver the only decision-maker? Would not politicians (or anyone) be more inclined to help people they know? Is that necessarily disturbing or criminal? If another politician gave a state job to the relative of a friend – who did good work and deserved the job –is that a crime? It seems that is exactly what happens every day, whether we like it or not.

Before people rush to judgment, we all should more carefully analyze what was done and not done, and how (whether) it differs from politics as usual, the legal kind. And we should realize that the US Attorney Preet Bharara has been a very aggressive prosecutor, which is fine, but has had a number of high profile convictions reversed on appeal, which is nonetheless devastating to the defendant. And realize as well that one of Silver’s predecessors as Speaker, Mel Miller, was convicted of fraud in 1991, and consequently lost both his speakership and his seat in the Assembly. Two years later, his conviction was reversed on appeal, and he went free.

Free – except that his personal and professional lives had already been ruined.

A cautionary tale indeed. Let the presumption of innocence exist in fact and not only in theory. That is both fair and just, and something that we would all expect for ourselves.

Fate of the Union

There was a character in Chicago who felt himself so inconsequential, so invisible, to others that he dubbed himself “Mr. Cellophane.” Barack Obama is neither invisible nor inconsequential, but he is so transparent as to deserve the moniker “The Cellophane President.” Just read or listen to the State of the Union address, and you can see right through him.

It is conceded that he delivers a speech well. Some of the boasts can be forgiven as well, despite their detachment from reality. The deficit has been cut more than half, not that difficult considering that he ran up multi-trillion dollar deficits in his first four years in office, an unprecedented feat. America leads the world today in the production of oil and natural gas, a fact having absolutely nothing to do with the White House which has stymied the production of both since 2009. The proliferation of energy is entirely due to the private sector, which has been clamoring for years for the right to drill offshore and build the Keystone XL pipeline and has been thwarted by President Obama. The price of oil has dropped precipitously, which he touts despite his utter uninvolvement.

The pleas for bipartisanship are by now so hollow as to be risible. He implores Congress to talk to him – and then flies off to Idaho and Kansas to complain that Congress won’t talk to him. Huh? Perhaps he should stick around for a day or two. He has pioneered the permanent campaign because campaigning is his natural skill: the articulation of sentiments and the dispensing of rhetoric, sometimes lofty and inspiring and sometimes rancorous and tenebrous, are his stock-in-trade. He should never be the CEO of any corporation (much less the US), but he would excel as Vice-President of Marketing. The marketer need concern himself only with selling the product, and not at all with the nature of the product itself – its uses, its viability, and its manufacture. Just sell the product. “If you like your doctor, you can keep your doctor!” Enough said.

His method of governance, so to speak, is galling. Catch the words, not just the tone. Accept his policies or be castigated as “partisan.” (He is never partisan.) Adopt his “practical” solutions, or you are playing politics. If Congress tries to undo anything that he has done – whether or not it is working or popular – it will be vetoed. If he and Congress do not agree, then “work with” him where they do agree. The thought that he should work with them – indeed, the thought that any idea that he has not spawned has any merit – has clearly not dawned on him. And by the snarky but likely rehearsed crack (“I won both elections”), it hasn’t yet hit him that everyone on the flooe with him also won their elections. He is not the only elected official in the nation. Oh, and then lament the sour tone of modern politics. That’s rich. Or oleaginous. Or both.

It is a clever polemical tactic – take credit for whatever good and ignore (or blame someone else – Republicans? Bush? Partisan hacks?) for the bad. Figures lie and liars can figure. One can parse the economic statistics in five different ways, pro and con. Official unemployment is down, but tens of millions of Americans have dropped out of the work force and/or are not looking for jobs (so they don’t register in the unemployment rate) or are working part-time (so they count as employed but cannot support themselves). The recovery would have happened if Donald Duck was the president – it’s the natural economic cycle – but growth, jobs and personal income are being artificially suppressed because of the increased costs to businesses for Obamacare and over-regulation. That is why his solution is more handouts to the “middle class,” rather than health care freedom, lower tax rates and deregulation. Tax and spend, again? Really?

But the President is most dangerously out of touch on foreign affairs. After years of saying that Al Qaeda is “on the run,” “decimated,” etc., a resurgent Al Qaeda went…unmentioned in the speech. Terror still has an amorphous provenance – “extremists!” – and not, perish the thought, radical Islam. How will decent Muslims deal with the catastrophe unleashed on mankind by their co-religionists if the so-called leader of the free world accords them no role in the process, indeed, deems it repugnant and inaccurate to link terror to Islam at all?

Perhaps nothing demonstrates Obama’s disconnect as much as this: the enemy de jour is ISIS (ISIL, as he persists in labeling them, contra their own designation), and that enemy’s advances have been halted, or so Obama opines. Well, here’s this morning’s report from the Institute for the Study of War, which daily tracks the conflict in Iraq and Syria, region by region, town by town:

      “The Islamic State of Iraq and al-Sham (ISIS) has begun to expand its presence in the Syrian central corridor which stretches from the Jordanian border through Damascus to the central cities of Homs and Hama. The “central corridor” is highly-contested key terrain for both the Syrian regime and its armed opposition, while ISIS presence has generally been limited in the area until recently. As one major exception, ISIS maintained a notable foothold in several opposition-held areas of Damascus in early 2014 before retreating due to pressure from local rebel groups. A small ISIS contingent, largely overlooked, endured quietly in the southern suburbs of Damascus throughout late 2014. Over the past two months, ISIS has once again escalated its military and public relations activities in this area, threatening to divert both regime and rebel resources away from active fronts in the Damascus area in order to contend with the ISIS threat. This development may provide an indicator of ISIS’s broader expansion plans in western Syria and the potential response of Syrian opposition fighters to this expansion.”

If you just peruse the map, you will see that ISIS, rather than being on the run, now controls almost half of Syria and most of western Iraq. Israel is well aware of the danger, as is Jordan, as is Saudi Arabia. Only Obama seems blithely dismissive of their prowess and progress, as the success of ISIS does not fit his political narrative as the omnipotent shaper of world events “from behind.” Yemen, a US ally, is about to fall to radical Islam. Obama has still not reconciled himself to the fall of the Muslim Brotherhood government in Egypt. Finger-wagging does not seem to be a sufficient deterrent to people who readily wield hatchets and massacre with abandon.

As was forecast here several times, Obama has little interest in halting Iran’s nuclear program, and will negotiate and negotiate with them until the initial blast. His best scenario is kicking the can down the road so it becomes the next president’s problem. “Not my job!” That’s what makes Congress’ invitation to PM Netanyahu to come address a joint session next month on the twin threats of radical Islam and Iran’s nuclear ambitions so intriguing. Rarely does one find a congressional smack down of a president so blatant, transparent and delicious. The President can hardly complain that Congress did not consult him when he never consults Congress before acting unilaterally. And Congress – on a bipartisan basis, led admirably for years on this issue by our own Senator Bob Menendez – clearly is in favor of passing strong sanctions legislation now, to go into effect when the current round of negotiations fails in June.

In essence, few presidents have been distrusted by Congress more than Obama is by the current legislature, and there are few leaders in the world who are as disliked by Obama as is Netanyahu. What a triangle – Congress is using Netanyahu to poke and prod Obama, and rally support for the two-thirds Congressional majority that can override Obama’s expected veto of sanctions legislation. Netanyahu loves it as well.  Right in the middle of a heavily contested election campaign, Netanyahu gets to look magisterial in the well of Congress, defending Israel’s interests and tweaking an American president who is widely disliked in Israel. It can only win him votes and support, one reason why his visit might be sabotaged by the administration before he even arrives, and why Obama’s favorites in Israel ‘s upcoming elections – the malleable Herzog and Livni – will dutifully condemn the proposed visit as a gimmick. It is a chess game.

Except for the fact that there are real dangers in the world to which Obama seems detached as he pushes for universal child care or something, always paid for by someone else. Terror has grown exponentially on his watch. Country after country has been pulverized, and most security experts see another devastating attack in the US as simply a matter of time. America is the country most equipped to lead the world and engage the enemy. It has the capability. Does it have the will? The leadership?

Not yet. And no amount of verbiage, empty promises, recycled speeches, boasts and cellophane can cover that up.

Are We Charlie?

A letter writer to the Wall Street Journal wondered if the provocative cartoons in Charlie Hebdo were the American equivalent of “shouting fire in a crowded theater,” and whether the so-called journalists would have been better off desisting from antagonizing the wrong sorts of people.  Before noting the fecklessness of her suggestion, it is always amusing when people misquote Justice Holmes in Schenck v. United States (1919). Holmes actually stated that the First Amendment does not protect “falsely shouting fire in a crowded theater,” not merely “shouting fire.” What if the theater, or the world, is on fire? Shouldn’t one then scream “fire” to all assembled and to the heavens?

The writer’s sentiment is drawn directly from the appeasement playbook and never works, but contrast that with the brash but brave declaration of one of the murder victims, the magazine’s former editor, who said two years ago, when he was first pressured by Muslim extremists, that he would “prefer to die on my feet than live on my knees.” (DISCLAIMER! Most Muslims are not extremists or terrorists! I am referring to those who are and their supporters.) It is fairly certain that even in his bravado, and in his worst nightmares, he never anticipated that a massacre such as the one that occurred could ever be perpetrated by fellow human beings on this planet.

But it can. It has too many times in the past, as it will recur – G-d forbid – in the future. The Paris rally that attracted every world leader who recognizes the danger of Islamic terror (and thus not the American President) demonstrated a temporary resolve but the book is open. The dispute over the presence of Israel’s PM Netanyahu and the subsequent invitation to the PA’s president-for-life Mahmoud Abbas (for balance, of course) does not bode well for the future. Abbas?? If Yasser Arafat was the father of international terror, Abbas was its godfather, Arafat’s right hand who was responsible for bankrolling the PLO’s reign of terror and today presides over the PA’s outsourced terror. Abbas?!

That invitation simply means that the countries gathered want to keep Islamic terror outside their borders but are not completely troubled by the terror that persists in Israel. As long as only the canary in the coal mine suffers, those outside the mine can continue to preach caution and restraint to the canary. But it is the same enemy in different guises, and that has not yet penetrated the international consciousness notwithstanding Netanyahu’s repeated efforts at making the equation. Those leaders may yet learn that the methods by which Israel fights terror – and for which Israel has been routinely and hypocritically vilified – are the methods they themselves will deploy in the war against terror – if not even harsher methods and if they choose to wage such a war.

It is interesting that the letter writer’s point of view was embraced in the recent past by both France’s Prime Minister and by the White House, who decried the offense to Muslim sensibilities by the magazine’s constant mockery of Islam. Both governments conceded the right of free speech but urged its judicious and more sensitive use (unlike the auteur of the Mohammed video that was falsely claimed to be the pretext for the Benghazi attack and who now languishes in an American prison). Indeed, although it was unintended, one facet of the writer’s suggestion resonated with me but for a different reason.

Obviously, nothing – NOTHING – justifies the brutal, evil, malicious, hideous attacks in France. Nothing the magazine published deserved death. We need to create a new vocabulary to describe the depths of evil to which the world is now witness, and across the globe, and almost daily. It is always the same; only the venue changes.

Nevertheless, before we all become Charlie, it is worthwhile to state that these were victims, innocent victims whose deaths were repugnant and worthy of condemnation and international protest and action. But we should be able to retain that conclusion and still reflect on another aspect of Western life.

It is not as if Charlie Hebdo was researching cures for cancer or finding new ways to relieve hunger. It is a media organ dedicated to mockery, scorn (especially of religion), and the slaughtering of both sacred cows and the notion of the sacred altogether. The media reports that it is irreverent, vulgar, juvenile and rude, and designed to offend. That business model – and its allure – are worth pondering.

It has become fashionable in liberal societies to mock religion, if only to justify to themselves that there is no objective morality, no real right and wrong, and no ideal lifestyle. Religion – of any sort – places restrictions on the pursuit of one’s fantasies and usually imposes some moral code that guides the adherent’s personal and public behavior. It thereby cuts against the grain of modern life and is a tough sell in the Western world. In some parts of the world – France, in particular, the disdain for organized religion is several centuries old.

But note the self-imposed limitations on publications such as Charlie and its imitators (even in America): would they ever direct their comedy against liberal shibboleths such as abortion rights activists or homosexuals? If they did, they would be construed as purveyors of hate, not satire, and even if they meant what they wrote as satire. The scoffers of religion are considered avant garde and generally lionized by the liberal media. I suppose the reaction depends on whose garde is being gored.

We should be able to mourn their deaths and feel outrage, horror and revulsion at their murder without simultaneously sanctifying or glorifying the practices that, despicably, inspired the monsters that murdered them. Death does not retroactively purify deeds that are impure, even when that death is wholly undeserved. Just because one dies for his beliefs does not mean that those beliefs are admirable; memo to Muslim terrorists.

What should be a civilized person’s understanding of the cherished freedom of speech? There are many free speech absolutists who at least embrace consistency but not always decency and common sense. Certainly, there are restrictions on free speech that we all recognize – libel, obscenity (certainly in public), incitement; many European countries ban the use of Nazi imagery or Holocaust denial. Those are all restrictions on free speech that are plausible and justifiable. On the other side of the coin, as noted here several times, there are places in the US today (college campuses in particular) where certain points of view are denied expression in public or in the classroom, where speakers – right-wing, pro-Israel, Christian, pro-traditional morality and others are not allowed to speak. Their lectures are not just boycotted by protesters – that would be civilized – but disrupted. They are shouted down and their audiences are deprived of the right to hear them. This has gone on for almost thirty years. The tactics of those protesters differ in degree, but not really in kind, from those who attempted in Paris – and will fail across the globe – to suppress the free speech of free people, even scoffers.

How do we censor offensive speech? The way it is done in America by civilized people – through social sanction. It is disgraceful to mock the cherished and valued beliefs that people profess, and decent people choose to disassociate themselves from those who do. (It isn’t hard to distinguish between acts or statements that are objectively repugnant – using icons in lewd and lascivious ways, as has been done in the United States with Christian figures – and mere depictions – such as the drawings of Mohammed – that are forbidden under Islamic law does not bind Westerners and is wrong if meant to ridicule or to be coarse but should never be illegal.  Nor is it reasonable to expect a secular textbook to remove drawings of pigs or dogs so as not to offend children, as Oxford Press has recently done. Nonetheless, an Israeli teen was sent to prison several years ago for distributing a crude Mohammed poster.)

Jewish law discusses extensively the parameters of permissible and impermissible forms of speech, and pious Jews study and try to implement those laws. Satire has its place, but not mean-spirited mockery, derision, the pervasive celebrity gossip that dominates too many people’s waking moments, the public shaming of people, etc. Charlie Hebdo should have the right to publish whatever it wants, but I don’t see how its publication makes the world a better place.

But unlike the letter-writer who admonished the victims for unwittingly provoking their own deaths, from which I strongly dissent, abstaining from ridiculing religions should come from elementary decency, not from fear. There are just certain things that decent people don’t do – in public or in private – because they wish to define themselves and be perceived by others as decent people.

Granted, a call for respect rings hollow now, and Muslims are not sympathetic figures for obvious reasons – the violence, and less obvious ones. Radical Muslims have attacked holy symbols of many religions across the globe – Jewish, Christian, Buddhist, Hindu, and even Sunni or Shi’a shrines, depending on the type of radical doing the damage. Some Muslim writers routinely belittle other religions, and even the Arab press in parts of the Middle East habitually calls Jews the “descendants of apes and pigs.”  It is a little duplicitous, to say the least, for the murderers to claim they are “avenging” alleged insults to the revered figures when they incessantly hurl invective at all other religions. But, despite the agonizing search for motives, terrorists commit their heinous deeds for no reason and every reason. There are very few people in the world who would take a human life because of such an insult, and very few who would want to give up their own life in doing so. The obsession over motive – “what X or Y must have done to deserve it” – is an empty and futile pursuit and ultimately demeaning to all victims of terror.

That is the reality of radical Islamic terror and the malady for which civilized Muslims must find a cure. It is important to add – and especially because of the sensitivity of the sensitive – that a French Muslim police officer was murdered in cold blood outside the Charlie Hebdo offices, reinforcing the sense that those bent on murder and mayhem will commit murder and mayhem regardless of the ethnicity of the victims. And to be eternally honored for the good he did is Lassana Bathily, a Muslim employee at the kosher market who hid several Jews in the freezer and quite possibly saved their lives.

Those who claim to be “Charlie” would do well to use their freedom of speech to elevate and not degrade, to fight evil rather than accommodate it, and to become more fearless and not more fearful. As always, the way nations treat Israel in its current predicament and struggle against terror will go a long way to ascertaining their true position on Arab terror – a global scourge to be fought or a local inflammation best dealt with by keeping it outside their own borders.
It would be a better world if people actually pursued goodness rather than fame or notoriety. The innocent writers and cartoonists who were cruelly gunned down will not soon be forgotten, and rightly so. We should also bear in mind that just because something is legal does not mean it should be pursued. Man has a higher calling that emanates from the “image of G-d” that gives him life, and gives that life meaning.

Caught in the Maelstrom

Anyone who doubts the hostile, repressive atmosphere that the modern college poses for religious, pro-Israel Jews (and other people of faith) should look into the case of Daniel Mael, a student at Brandeis who has been ensnared in a number of recent controversies. He seems to be a lightning rod that attracts the attention of assorted Jew-haters, Israel-bashers, and PC purveyors, and, in his pursuit of justice, truth and honor, kicks up a storm whenever he speaks. In other words, my kind of guy.

Two issues have recently brought him into the public eye. In the first, he stated that the Jewish campus head of J Street, an organization that describes itself as “pro-Israel, pro-peace” but functions more as “useful idiots” (in Lenin’s phrase) for Israel’s sworn enemies, is, more or less, a “bad Jew.” For that offense, he has in essence been charged with bullying, brought up on student charges, and threatened with expulsion.

It is worthwhile to note that college campuses today are routinely free-speech-free zones. No longer are ideas and issues to be discussed and debated, no longer are sincere opinions openly exchanged. Conservative viewpoints and strongly held moral beliefs are best kept to oneself, or there are recriminations – from students who will prosecute their fellow students if certain opinions make them feel “uncomfortable” (think opposition to abortion-on-demand or same-sex marriage) to teachers who will exact vengeance on students (test scores, grades, recommendations) for espousing disfavored opinions in class or on exams. It is no exaggeration to say that this is the norm on many, if not most, of today’s elite college campuses.

Of course, the absence of free speech is only imposed on the right, Israel supporters, or voices of traditional morality. Students on the left feel free to disrupt pro-Israel events, and have been known to call Jews and other advocates for Israel “murderers, baby killers” and the like – all references to Israel’s brief war in Gaza this past summer, in which Israel had the temerity to respond to rocket and missile fire on its civilians with a bombardment and its own short-lived invasion. (The nerve! Don’t they know that Jews are just supposed to die quietly?)

Most college campuses have been liberal for quite a long time, but back in the day there was greater openness to debate. Liberals used to support that kind of honesty. People were free to agree or disagree, and I recall spirited debates in college on a wide number of issues. The environment has changed so dramatically that opinions that were freely discussed (even widely shared) 30-40 years ago are simply unacceptable discourse today. And those assumed to harbor those opinions are singled out for special treatment.

Many Jewish students on a variety of college campuses today fear to wear their kippot in public or attend public events geared to Jews so as not to call attention to themselves. None of that – and the “discomfort” they must feel – seems to concern faculties or administrators. The protections only extend in one direction, to the classes that are coddled by society and often allowed to run amok. For those colleges and the adults who run them, those are shameful displays of fecklessness and cowardice born of their own fears and guilt.

In the matter referenced above, as the Wall Street Journal reported recently, Mael, knowing the deck was stacked against him, defied the campus rule and hired outside counsel to defend his rights. That seems to have put a damper on Brandeis’ enthusiasm for prosecuting or expelling him. It is worthwhile to note that in a letter to the WSJ, Brandeis’ president denied all the accusations of misconduct, bias and due process violations, and criticized the student and his attorneys – and then said nothing about why the accusations are false, hiding behind the confidentiality of the proceedings. But denials are facile; evidence has to be adduced or the accusations ring true.

One would think that Brandeis would be a bastion of pro-Israel advocacy, but those days are long gone. It bills itself as a “non-sectarian university under Jewish auspices,” but, aside from the facts that the founders were Jewish and the school calendar is Jewish, little else – the values, the ambiance, the world view – is Jewish anymore.

That is on a par with Brandeis’ pusillanimous and un-American disinvitation to activist Ayaan Hirsi Ali, invited last year to receive an honorary degree because of her outspokenness about Islam and her courage in facing down her critics. That degree was summarily withdrawn under pressure, not exactly a shining moment for freedom, but quite natural and understandable given the current political and intellectual climate at American colleges. Undoubtedly, Daniel Mael stands out at Brandeis for his fearlessness and passion for truth. It must be a lonely stand.

His second venture involved the exposure of one of his classmates – a black female – who tweeted some reprehensible statements in support of the murder of two NYC police officers last month and some utterly vulgar diatribes against the United States. The fallout from that was enormous – not for the tweeter but for Mael who published her comments and her picture. The woman was deeply aggrieved at having her public musings made even more public. As a result, Mael’s life has been threatened and further campus charges are being considered.

Of course, in a normal world, the female tweeter would have been expelled for advocating, or at least celebrating, the brutal murder of two police officers. Attendance at any particular college is a privilege, not a right, and Brandeis should recoil from educating someone with such repugnant and racist views. And if you convince me that the First Amendment protects even that type of abhorrent speech – although celebrating murder straddles the line between protected speech and criminal advocacy – then at least extend the same protections to Mael in his writings.

We should all speak out on behalf of Daniel Mael. Those who have ties to or influence at Brandeis should use it. There is something anomalous – not to mention revolting – about a campus on which the only speech that is protected is anti-American, anti-Jewish, anti-Israel, anti-Christian, anti-morality and even anti-white, while speech that is pro-American, Jewish, Christian, morality and, I suppose, white, is suppressed in the name of … morality, ethics, understanding but really just political correctness.

It is actually the height of cowardice. There is a price to be paid for not standing up to bullies of all types, and not defending the cherished freedoms that Americans, Westerners and Israelis have long enjoyed. That price is being paid across the world. It was paid in New York City last month, and paid in Paris yesterday. In his personal turmoil today, Daniel Mael is paying a price as well.

The least we can do is help him fight back.

Fear and Courage

It is hard to deny that fear pervades much of the civilized world these days, fear in a variety of forms. There is fear of terror, fear of violence, fear of driving on certain roads or visiting particular neighborhoods, fears stoked by the sense that Western political leaders have no answers, fears of the outsized reach of dictators as evinced by the recent contretemps involving North Korea, Sony, and the awkward release of a movie comedy,  and even fear of repercussions – public ridicule and the like – for saying the “wrong” thing, using politically incorrect language, or otherwise not toeing the ideological line imposed by elite thinkers.

There is a sense that matters are escalating out of control across much of the world, that the civilized world is in the gun sights of the evildoers, and that – as an older and wiser person suggested to me last week – the malevolent forces are unstoppable.

That attitude, while plausible, has engendered a world of fearful people and that is an unhealthy development for two reasons: it robs life of its vitality and purpose and it only further encourages the evildoers. When FDR said at his first inaugural, in the throes of the Great Depression, that “the only thing we have to fear is fear itself” (a late addition to the text, and apparently borrowed and paraphrased from an advertising slogan), he knew exactly of what he was speaking.

The Talmud (Berachot 60a) relates that a disciple of Rabbi Yishmael was walking in the market of Zion, and the teacher saw that his student looked petrified. Rabbi Yishmael said to him, “you are a sinner, because the verse in Yeshayahu (33:14) reads, ‘the sinners were afraid in Zion.’” The disciple countered, “but doesn’t Scripture (Mishlei 28:14) also teach, “Fortunate is the one who is always afraid”? There is a value in being fearful! It keeps one alert and vigilant to all dangers, physical and spiritual.

Rabbi Yishmael explained that the latter verse – extolling the virtues of fear – relates only to Torah matters. We should be afraid of forgetting our knowledge, so that we will review our studies constantly. Similarly, we should be afraid of sin, so as to make us more attentive to our temptations, shortcomings – and strengths.

Rav Shlomo Aviner commented that the only true fear we should ever have is about our status before G-d. All other fears are a frivolous waste of energy, especially fears of human beings and their evil. This echoes something that Rav Soloveitchik wrote – the one fear (of G-d) should overwhelm any other fear that a person has. Consequently, those other fears become trivial, and succumbing to those fears betrays a lack of faith.

While in exile, fear was always a constant companion of the Jew. “And your life will hang in the balance. You will be frightened night and day and not be sure of your life” (Devarim 28:66). It is a measure of the unprecedented safety that Jews have felt in the United States in the last half-century that we are markedly uneasy with even the slightest threats, however vague, to our well-being. It is not like that elsewhere in the world – where threats are real and palpable – and not even in Israel today where, notwithstanding the statistical improbability of being attacked by terrorists, there is a foreboding sense that any driver/shopper/pedestrian can encounter stoners, shooters and worse, not to mention the threat of war on the northern and southern borders.

And, of course, the situation in America can change on a dime if too much deference is paid to anti-social forces or purveyors of terror. No geo-political situation is permanent.

That is why even in Israel caution rather than fear is warranted, and the same could be said for here as well. Certainly, the Torah has promised tranquility to the Jews dwelling in Zion, even if that serenity is conditioned on good behavior and rational, Torah-based responses to one’s enemies. If we are neglectful on either front, then evil will gain the upper hand, as it has several times in the past. But the capability of feeling serene and unruffled even amid occasional chaos is a gift to Jews in Israel and elsewhere. But it has to be embraced and not neglected.

The backlash by the American public – demanding to see (what is by many accounts) a bad movie – is a constructive response to the spinelessness that has afflicted much of the Western leadership in recent years. Perhaps it will serve as a wakeup call because decision-making by fear and the coddling of bullies is not restricted to the film industry.

We have grown accustomed to the sight of rioters having their way, unchecked and unrestrained. Whether their grievances are legitimate or illegitimate is not relevant; no grievance gives anyone the right to rampage, run amok, burn down the buildings and loot the property of innocent third parties. Yet, America has been treated to that sight several times in the last few months. Mobs are allowed to vent – at the expense of the innocent – out of fear that the violence will be worse if the looters are challenged, thwarted or arrested. But such reticence is a victory for the bullies over the civilized.

Whenever Israeli soldiers run from Arab rioters who are throwing stones, burning tires or otherwise causing mayhem – most recently in Jerusalem itself – it only emboldens the perpetrators of violence, and leaves the good people wondering to whom they can turn for protection and justice. Something is wrong with all those pictures.

Free speech is a casualty of fear. Truth is a casualty of fear. Suppressing an articulation of one’s values is a casualty of fear. Even the right of self-defense can be a casualty of fear. Those casualties take a very high toll, not in life but in self-confidence and personal happiness and on the norms of civilization.

On college and graduate school campuses across America, there are certain words that can no longer be uttered and certain opinions that are deemed unacceptable for discussion (whether pro-life, pro-gun, pro-death penalty, pro-Israel, etc., depending on the campus and on the professor). The WSJ recently noted that a law professor was asked by some tender students not to use the word “violate” in class (as in, “said conduct violates the law”) because the word “violate” also connotes, to some, a sexual assault, and therefore might cause pain to some of the listeners. This strikes me as not normal, as there will always be some person taking offense for anything said by anyone. It is as if some people demand a guarantee that they will pass through life never being offended by anyone, or else. Or else… what?

One of the worst fates a person can suffer today – in certain circles – is being branded a racist, sexist, homophobe, Islamophobe, etc. Proof and evidence are superfluous; the indictment itself is tantamount to a conviction. These are bullets fired recklessly that bring some political or social gain to the accuser, and cause people to bite their tongues when they should be speaking out. By contrast, some accusations don’t matter. Accusing someone of being anti-Jewish, anti-Catholic, anti-white, anti-American, etc. simply carries no weight; they are blanks that are fired, make noise but have no consequences except for the intimidation of members of the besieged groups.

The only way to reverse the trend is to live without fear and speak freely – of course, without giving needless offense to anyone – but fearlessly and freely nonetheless. To allow unlimited rights to intimidators and fewer rights to the intimidated is not a recipe for societal harmony or the triumph of justice.

Eleanor Roosevelt wrote that “courage is more exhilarating than fear and in the long run it is easier.”

It is a lesson that the Western world needs to re-learn and that Jews in particular forget at our peril. Ultimately, that courage comes naturally to people of faith. It is the message that we reinforce to ourselves when we conclude the reading of each book of the Torah – “be strong, be strong, and may we be strengthened!” – and the mandate given us by Yehoshua when we first entered the land of Israel: “Chazak ve’ematz – be strong and courageous!”

It will work as well today as it did then.

 

The Cuban Initiative

President Obama’s overture to Cuba – reversing a staple of American diplomacy of more than fifty years – fits the pattern of his conduct of foreign policy since he took office. He has routinely courted enemies and alienated friends. The latter approach – think Israel, Britain, Poland, the Czech Republic, etc. – is peculiar both in statecraft and in life. The former approach at least, in theory, has the merit of fulfilling a dictum of our Sages: “Who is powerful? He who turns his enemy into a friend” (Avot d’Rabbi Natan, Ch. 23).

That is in theory. In practice, it is laudable only if the enemy actually becomes a friend, as opposed to remaining an enemy exploiting the weaknesses of the moving party to strengthen itself, enrich its rulers and further enslave its people. Judging by the early statements from the Cuban dictators, only a dewy-eyed optimist or a person of the political left who is ideologically comfortable with Marxism would anticipate any success here. Obama’s rationale – “if something hasn’t worked for fifty years, it is time to try something different” – begs the question: what exactly hasn’t worked? If the goal is to isolate Cuba to force political liberalization, then Cuba has been isolated, is impoverished, and is not self-sufficient. Every inducement to change is in place, if the dictators so desired. But political liberalization has always been a pipedream, as dictators rarely need to be responsive to the needs of the citizenry, and especially not when the regime’s opponents are regularly jailed for long periods of time for even mild protests.

The Cuban government has certainly expressed an interest in American dollars and investment, but it is farfetched to conclude that any of that bounty will filter down to the average citizen. In any event, rogues find it relatively easy to wait out a sanctions regime, and in recent years have dangled spurious concessions in front of Obama’s diplomats to successfully induce their dismantlement (Iran, Russia). There is no reason why this should be different and every reason why it should be exactly the same – same game, same tactics, same outcome.

That being said, what exactly is the value of a boycott? It seems to have worked only with the apartheid governments of South Africa and Rhodesia but those were unique situations – minority governments suppressing the majority population. (Few seem to care that, at least in Zimbabwe, blacks are persecuted more today living under the Mugabe regime than under the white government.) Otherwise, boycotts are usually not successful, and not only because they create an underground market for needed goods and services. I have seen Cuban cigars for sale in Canada, Denmark, Russia and Israel. Most of the world’s countries do not seem to be bothered by the excesses of the Cuban regime. Even the United States exhibits selective outrage against Communist dictatorships, doing business with Russia and China for decades while shunning Cuba. Certainly the human rights records of those two countries inspired Cuba for much of the last half-century, and America’s relaxation of sanctions against Iran has enabled big business to restart relationships with that human rights-abusing, Holocaust-denying and nuclear bomb-building government.

So, why was Cuba singled out?

A number of possibilities exist. Cuba under Batista was an American ally and a magnet for investment (especially mob investment). The loss of that capital surely grated. Cuba is also a scant 90 miles from Florida, and the presence of a Communist outpost so close to US soil was always a cause for concern. Of course, the failed Bay of Pigs invasion in April 1961 gave the US a black eye and the Cuban missile crisis of October 1962 brought the US and the Soviet Union to the brink of a nuclear exchange, both of which surely underscored Cuba’s negative image in the American eye. And the Cuban émigré community is a potent political force, especially in Florida, and consists of people who suffered enormously to other US nemeses in that part of the world,under Castro. Many have relatives who are still stuck in that island prison. Those reasons are surely valid but do not explain the shunning of Cuba as compared to other US nemeses in that part of the world, such as Venezuela in the last 20 years.

There is another possibility: American foreign policy has always been a bit schizophrenic, in part because of the unresolved clash between the realists and the moralists. There has always been a moralistic streak in US diplomacy, which represents the highest aspirations of the American character. This country – until recently – always tended to embrace fellow democracies and other nations that shared core American values. Those countries were showered with support and embraced with friendship. But, by the same token, the realists recognized that no country has permanent allies or friends but only permanent interests, and the promotion of those interests has frequently demanded the maintenance of relations with some unsavory governments.

This type of diplomacy required “holding one’s nose” while doing business, and encompassed dictators across the globe, from Latin America to the Pacific to Africa. It was best exemplified by a statement attributed to FDR and referring to Nicaragua’s Somoza (the first): “Somoza may be an SOB but he’s our SOB.” Needless to say, that quote – and sentiment – has been applied to many other dictators who have been allied with America.

Such an approach is not completely unreasonable. The person or nation that wishes to associate only with the completely righteous will find itself lonely and isolated. It is unrealistic to expect the complete isolation of every scoundrel. On the other hand, that association will inevitably drain the good character out of even the most resistant entity. (Targum Yonatan, explaining the injunction in the Decalogue against murder, admonishes Jews “not to be friends or partners with murderers.” There is a moral price that is paid for those relationships; often, evil itself becomes less horrific and the innocent suffer even more.)

Furthermore, there is an argument to be made for non-interference by outsiders in another country’s domestic affairs (if only the world would leave Israel alone and not become apoplectic every time a porch is built in Jerusalem!), but that too can be taken to an extreme. That attitude would justify the world’s disregard of the Holocaust in its time, Stalin’s and Mao’s genocide in their own countries, and of course even lesser abuses of any country’s citizens. That would be unconscionable.

How then does the US retain relations with some evildoers and simultaneously maintain its self-image as defender of liberty, freedom and other moral norms? Perhaps – and this is pure speculation – by singling out some countries – like Cuba – for “special” harsh treatment as an affirmation of American values. Is it fair? Not really. But such is far better than turning into an amoral entity like Europe that for decades sought to sell out Israel for Arab oil and is presently just selling Israel out, period. Even paying lip service to core values has lasting significance.

It is a stretch to say that Obama’s planned recognition of Cuba is designed to “open up” Cuba so that the average citizen is lifted out of poverty, or that the air of liberty will suddenly waft through that Communist jail and transform the society, or even that a post-Castro Cuba will find its way back into the free world. Cuba is not destitute because of the US boycott; there is nothing marketed here that Cubans cannot import from the rest of the world – Latin America, Asia and Europe. Cuba is destitute because its rulers enrich themselves at the expense of the citizenry, and jail anyone with an untoward thought. Ceasing the boycott while keeping the same corrupt system of government will help the elites and not the people.

Many remember the Cuban boat people who risked their lives fleeing to US shores on rickety boats. The test of this relationship will be whether or not those who wish to leave are allowed to leave, those incarcerated for their opposition to Castro will be released, and those American dollars invested in Cuba better the material lives of those who stay.

Why then is Obama doing this? Because he can. He is a man much more comfortable with the rhetoric and ideology of the Third World, and sees the American boycott of Cuba as a relic of America’s imperialist past. Indeed, the moral preening of US diplomacy has, in recent years, only been exercised against Israel. One example suffices: a recent study reported that 96% of those killed in US bombing raids in Syria have been civilians, but Israel was forced to stand down from Operation Protective Edge in Gaza because roughly 30% of those killed were civilians. And, yet, Israel was accused by the State Department of “not doing enough” to avoid civilian casualties. Go figure.

Obama has sought to re-orient American foreign policy and the outreach to Cuba is part of that. The good news – if there is any good news – is that this reorientation is unlikely to be continued by Obama’s successor because it is empowering many objectionable agents. The bad news is that, by then, the power of Iran and the militarism of Russia, among others, will be very difficult to reverse.

NOTE: My new book “Tzadka Mimeni: The Jewish Ethic of Personal Responsibility” can be ordered at a discount from Amazon.com and at a slightly greater discount at  Sales@gefenpublishing.com, or purchased at fine Jewish bookstores. Enjoy!

– RSP

Jerusalem on Trial

How often does a United States Supreme Court decision affect you personally? The decisions of the Supremes certainly touch our lives, but usually without the immediacy of one case now awaiting decision.

Here in Israel, we have been blessed with the birth of a grandson, and his arrival brings not only great joy but also the confusion that has engendered the case of Zivitofsky v. Kerry. Our grandson was born in Jerusalem, and, under current US consular practice, his place of birth will be recorded on his American passport as “Jerusalem,” and not as is done elsewhere in the world, with the country name rather than the city name. Indeed, if he had been born in Tel Aviv or Ramat Gan, his place of birth would be recorded as “Israel.” Not so in Jerusalem, capital of Israel for, oh, going on 3000 years and the focal point of the impending holiday of Chanuka.

This discrepancy exists because, as is well known, official US policy does not recognize Jerusalem as the capital of Israel, notwithstanding repeated promises and Congressional legislation to move the American embassy to Jerusalem. What is less known, and outrageous, is that official US policy does not even recognize Jerusalem as a city in Israel. That is a remarkable incongruity. Jerusalem is considered to be a disputed city whose ultimate fate is yet to be negotiated, and those born there, apparently, are stateless.

A number of years ago, the Zivitofsky family (Rabbi Dr. Ari Zivitofsky, the father, is a tremendous resource to the Jewish people in the realms of halachaminhag, science and now law) sued to have their Jerusalem-born son’s place of birth on his US passport be recorded as “Israel.” Their appeal was first denied by the Consulate, and a sympathetic Congress then passed a law mandating that any American child who is born in Jerusalem shall have his passport state that he was born in Israel. (That happened in 2002; the child in question is already Bar Mitzvah age, so long has the matter been meandering through the legal and political system.)  The bill was signed into law by President Bush, who nonetheless attached a signing statement arguing that this Congressional act was an unconstitutional violation of the president’s right to conduct foreign policy. The State Department, on those grounds, refused to implement the law. The Zivitofsky’s sued in US federal court, and the denial of their right to sue was upheld until the Supreme Court in 2011 ordered that the matter be decided on the merits.

When it was finally heard, their claim was systematically rejected on the grounds that this was a political/diplomatic question, and therefore solely the purview of the President. The appeal of that ruling is now pending before the Supremes.

How will the case be decided? The lamentable rule of thumb has usually been that “the Jews lose.” Most cases in memory of parochial Jewish interest have been decided against what could be called “the Jewish side.” It certainly does not help that the three Jewish justices who currently sit on the Court (Ginsburg, Breyer and Kagan) were notably hostile to the appellant’s case. When one adds to that number the clear opposition to the law of Justice Sotomayor, it means that the Zivitofsky’s have to run the table – gain the support of all five other justices – in order to prevail.

It is certainly possible, although, as is frequently the case, Justice Kennedy might again prove to be the swing vote. Three other justices (Roberts, Scalia, and Alito) appeared to be favorably disposed to the law and appellant’s arguments (with Justice Thomas reticent as always). How is this for irony? If the Zivotovsky’s prevail, it will be because five Catholic jurists outvoted three Jews and upheld the Jewish connection to Jerusalem!

At first glance, the case appears to be unwinnable. The recognition of foreign governments and their territories is a presidential prerogative. The president is the official who is primarily responsible for the conduct of foreign policy, with Congress playing a subordinate role. Here, too, the government argued that registering the birth of an American citizen in Jerusalem as “Israel” would negate one of the norms of US foreign policy since 1948: that the status of Jerusalem is to be determined through negotiations between the parties and not unilaterally by either side. Recording in a passport that, in effect, Jerusalem is Israel (even so-called West Jerusalem), would undermine that, and presumably ignite the tinderbox that is the Middle East.

What are the counter-arguments? (The oral argument before the Court can be read and even heard in full; it makes for fascinating reading and listening.) Issues were raised by some of the justices in support of the law that even appellant’s attorney did not mention in oral argument. For example, the passport would simply record “Israel” (not Jerusalem, Israel), same as for a child born in Tel Aviv. There is nothing on the face of the passport that makes any kind of political statement; a reader would not even know that the child was born in Jerusalem.

Justice Kennedy suggested attaching a disclaimer to the passport to avert the political problem – to the effect that nothing recorded on the passport should be perceived as tantamount to recognition by the United States of Jerusalem as the capital of Israel. Such is done with Taiwan, which is not recognized as a country by the US but whose US citizens born there are listed as having been born in Taiwan, not, if appropriate, Taipei the capital.

Appellant argued in the alternative – that the information on an individual’s passport is a personal choice and therefore does not at all imply any formal diplomatic recognition, and that even if it does imply recognition, Congress has the right to override the president’s view, as was done more than a century ago when the Congress recognized Cuba over President McKinley’s opposition. (He later came around.)

Justice Scalia, logical as always, questioned whether recording a geographical fact in an official document amounted to formal diplomatic recognition, and asserted that Congress had the right to pass a law even if it angered the Palestinians or anyone else.

Indeed, Justice Alito underscored the farcical nature of this diplomatic dance by asking, rhetorically, does the United States recognize a birth certificate issued by Israel for those born in Jerusalem? Of course. Does the United States maintain that Israel is not sovereign in Jerusalem, such that Israel would have no right to prosecute a crime committed by an American in Jerusalem? Of course not. Additionally, diplomats and presidents who wish to visit with Israeli leaders and speak before its Parliament all go to Israel’s capital.

It emerges then that obviously some – in fact, many – attributes of sovereignty are exercised by Israel in Jerusalem and accepted by the United States – despite the State Department’s refusal to recognize the births of Americans there as occurring in Israel. As such, it falls under the purview of a congressional statute that should be enforced, regardless of the diplomatic consequences.

Appellant further claimed, slightly less persuasively, that individuals have the right to self-identify on their passports. The point was to negate the argument that recording “Israel” was the equivalent of recognition, but it leaves open the possibility of “Palestine” someday appearing on American passports as well.

Clearly, if the Court wished to do so, there are ample legal grounds to uphold the statute. There are also compelling logical grounds: for how long will the United States tap dance around the reality that Jerusalem is a city in Israel, much less its capital? Even farce should have its limits. We are no longer in1948. We are 47 years past the reunification of Jerusalem as one city under the sovereignty of Israel. If Barack Obama or John Kerry faced a Final Jeopardy question with their fortunes at stake that asked for the capital of Israel, they would both know what to answer. So,  why not stop the charade already?

In a week or so, hundreds of Jewish bigwigs will descend on the White House for the annual Chanukah party. Rather than making small talk with the President, half of the VIPs should ask him to free the ailing Jonathan Pollard and the other half should ask him to recognize Jerusalem as a city in the State of Israel. That would be an effective and intelligent use of their face time, perhaps accomplish some good, and vitiate the need for the Court to decide.

It would also justify the party itself, for Chanuka without Jerusalem is lame – just as Israel without Jerusalem is missing its soul. Let us hope that the people who attend and the Jewish organizations they represent can save one soul and redeem one holy city.