I Am the Law

Alternatives Aplenty: A Quick Response to Mr. Kerry

Secretary Kerry says critics of the Iran deal offer no “realistic alternatives.”

Here are just a few that immediately spring to mind. It took, oh, all of five minutes to think them up.

1. Support regime change in Iran by, for example, empowering the Green Movement. Obama had a golden opportunity in 2009, when the Greens were flooding the streets of Tehran and practically begging the US for help. But, busy making symbolic pronouncements about closing Abu Ghraib, the president whiffed. As usual.

2. Demand as a precondition to any deal that Iran recognize Israel’s right to exist, renounce its calls for her destruction and – wait for it – stop sponsoring global terror. Kerry and Obama dismissed those prerequisites as “unrealistic.” What’s unrealistic about behaving like responsible members of the world community and observing the basic norms of civilized society? I guess that's asking too much.

3. If all else fails, including augmenting the sanctions already in place, then – God forbid – bomb Iran’s nuclear facilities into oblivion. A top American general assured Congress last week we have the capacity to do just that. But as Tehran well knows, Obama has effectively taken the military option off the table, robbing us of any real leverage or credible deterrent threat.

Bending over backwards to appease and enable a cornered, desperate foe when you hold all the cards. Only in Obamaworld, where war is peace, freedom is slavery and ignorance is strength.

How else to describe an administration that insists a deal with Israel's sworn enemy makes the Jewish state "safer” when Israel itself says exactly the opposite? Or a glorified “community organizer,” whatever that means, who thinks he’s a shrewder diplomat than Henry Kissinger – and doesn’t mind saying so?

Paper tigers indeed.

Barack Obama: Mideast Hypocrite

Just wait until our Islamophile-in-Chief demands that Israel surrender swaths of the West Bank and the Golan Heights – with Hezbollah and Assad, proxies for a newly emboldened and soon-to-be-enriched Iran, sitting on its doorstep. That’s sure to be the next move in Obama’s quest to reshape the world to suit his fancy. And it promises to be a rich one.

I hope Netanyahu or his successor laughs in Obama’s face. This administration has forfeited any phantom right to impose a “two-state solution” by selling out and endangering our closest and only democratic ally in the Mideast while appeasing and empowering Israel’s arch enemy and its terror clients directly bordering her. If this is how we treat our friends, I’d hate to see how we handle our foes.

Even this president can’t have it both ways, infusing Israel’s nemesis with oil money and weapons while insisting that the Jewish state relinquish its territorial buffer in the name of a mythical peace. That would be akin to a UN ultimatum that JFK stand down at the height of the Cuban missile crisis, with Soviet bombs 90 miles from striking American soil. Let’s see if BHO has the nerve to try it.

Make no mistake, today is a dark day in the history of Israeli-American affairs – a black mark on a long-running, mutually beneficial strategic and moral partnership. In one fell swoop, Washington has taken a sledgehammer to the vaunted “special relationship,” straining if not shattering the so-called “unbreakable bond” and emphatically belying the trope that the White House “has Israel’s back.”

Obama has Israel's back alright. How else could he manage to stick a knife in it?

I’ve said it before and I’ll say it again: shame on any Jew who claims to care about the future of the Zionist project and continues to apologize for this president.

It’s long past time for Jews interested in Israel’s survival to desert the Democratic Party en masse. It’s our only shot at pushing Obama’s Mideast policy, and that of his heir apparent, in a saner direction – and our only chance to get them to stop taking our vote for granted.

Sticks and Stones and the Emerging Accord with Iran

The Obama administration says Tehran is only posturing when its ostensibly moderate president takes to the streets with hordes of ordinary Iranians chanting “Down with America!” and “Death to Israel!”

Actions speak louder than words, the administration insists. And in the event, the mullahs seem poised to accept what Obama will tout as a milestone nuclear freeze negotiated by the P5+1.

The bluster that continues to emanate from Tehran on the eve of the deal is just that, Obama maintains. It shouldn’t be taken seriously, and amounts to mere face-saving with the Iranian public.

Much the same was said about the Nazis at Munich, where Chamberlain infamously applauded Hitler as a man you could rationally engage.

Of course, word and deed often diverge in matters of diplomacy. And not every terror regime will behave as suicidally as the Third Reich.

But one difference between the administration’s position and mine is that Obama’s willing to take the mullahs on faith and give them the benefit of the doubt – even though they’ve done less than nothing to earn it.

I, on the other hand, am perfectly happy to take them at their word. And all Jews – indeed sensible people of any origin – should follow suit.

That is the lesson of history. That is the lesson of “Never Forget.” And it is a lesson that Obama, despite dubbing himself the “first Jewish president,” either does not comprehend or studiously ignores.

For the sake of Israel, America and the world at large, I hope Obama’s rosy view of Iranian intentions proves right and my dim one wrong. I hope his trust is truly verifiable, and something more than misplaced naivete. The world can’t afford an errant bet on his part.

And in the end, that’s all this deal distills to: a bet that the ayatollahs’ 36-year track record makes demonstrably unlikely to pay off in peace.

Yet the White House expects us to blink that record away because there’s a new sheriff in Washington – an exuberant idealist full of cockeyed optimism and an unshakable belief in his ability to succeed where generations have failed by sheer force of his own charisma.

The hubris is breathtaking.

This is a case where perception is reality, and the eyes – and ears – distinctly don’t lie. It now falls to Congress, by refusing to lift the sanctions that brought Tehran to the table in the first place, to step in and vindicate the lessons that appear lost on this administration. Let’s cross our fingers that, for once, it has the courage to rise to the occasion.

Back to the Future with Abbas and the PA

Last month -- Dec. 17 to be exact -- a group called the Institute of Jewish Humanities honored me as its Criminal Lawyer of the Year.

That's not especially newsworthy.

But the Palestinian Authority's failed bid for statehood, along pre-67 lines, at the UN? Its joining the International Criminal Court and professed aim of hauling Bibi Netanyahu before the presiding marsupials as a war criminal? Those are headline grabbers for sure.

In light of these events, I thought I'd share my brief but timely acceptance speech at the IJH dinner, held at lower Manhattan's Museum of Jewish Heritage -- in the shadow of both Ground Zero and the Statue of Liberty. I hope you enjoy it. Happy New Year to one and all.

***

Thank you, Jerry [Shargel], for the touching and humbling introduction. You’re always a tough act to follow, but I’ll do my level best.

I’d like to thank the Institute for honoring me with this award, and all my friends and family for being here to share it – particularly my great pal and Springsteen buddy Corey Winograd, who made the effort to come all the way from Florida. For better or worse, each and every one of you has helped mold me into who I am and what I’ve become. I couldn’t have achieved what little I have without your invaluable contributions.

Special mention goes to my wonderful parents, who set an impeccable example, taught me right from wrong and put me through school, and to my loving wife Zina, who always has my back and somehow manages to live with me every day.

It’s a blessing and a privilege to have nearly all the people I really care about here in one room. The most conspicuous absence, of course, is my late sister Gwen. I dedicate this award to her memory and inspiration. That aside, I’d be relatively contented were I to leave this earth tonight.

I’m not much of an observant Jew, but Judaism is an integral part of my identity and played a key role in shaping my career choice. I’ve always been drawn to outsiders and plucky upstarts. And throughout history, Jews have been the ultimate underdogs and scapegoats, falsely accused – like some criminal defendants – of an endless parade of horribles they had nothing to do with.

That’s true of Israel especially, and it’s one reason I’m an unrepentant Zionist. The consummate expression of Jewish perseverance and determination, Israel is a nation that’s overcome incredible odds to literally rise from the sand, willing itself into an industrial, technological and military powerhouse.

Now in my experience the secular world may tolerate Jews when we’re timid and weak, but not so much when we grow bold and strong. So Israel naturally takes a lot of flak these days, some of it, unfortunately, from Jews themselves. With all the invective hurled in Israel’s direction, it’s easy to look past the country’s humble origins and take its dynamo status for granted. It’s easy to forget that it wasn’t always this way – that Israel wasn’t always the economic and political marvel it is today. It’s easy to lose sight of the challenges Israel had to meet, the struggles it had to face and the obstacles it had to scale to get where it is.

Hard as it seems to believe from what we hear and read, Israel’s continued existence and success are by no means foregone conclusions. The country was founded on the lofty ideals of tikkun olam – the healing of the world – and serving as a light unto nations. To be sure, it has sometimes fallen short of those noble aspirations. And like any free society, it’s far from perfect. But it is one of the world’s only true democracies, getting it right much more often than not.

And I may be preaching to the choir here, but Israel still needs our help and support – perhaps more than ever given the surge in global anti-Semitism and the country’s mounting isolation. I’m not talking about mere financial support. I’m talking about a more important kind of support. I’m talking about ethical, intellectual and spiritual support.

I’m talking about forcefully countering scurrilous blood libels that liken Zionism to Nazism. I’m talking about vigorously rejecting false moral equivalencies that paint a vibrant, thriving, well-meaning people with the same brush as terrorists. Terrorists who deliberately target civilians, hide their weapons in plain sight – amid homes, schools and houses of worship – and intentionally place their women and children in harm’s way. And I’m talking about doing all this vigilantly and relentlessly, whenever and wherever these canards rear their ugly heads.

So while we’re lamenting perceived injustices in Ferguson and Staten Island – while we’re championing worthy causes like marriage and racial equality – let’s pause for a moment to recall and heed a different injunction. An injunction that’s less grandiose but every bit as imperative as tikkun olam. The injunction that charity begins at home.

Thanks for coming and listening. And thanks again for the award.

Cheers.

Upcoming SCOTUS Highlights

My brief take on some of the biggest cases of the upcoming Supreme Court term, prepared for an Al Jazeera America TV appearance:

PENDING CASES

McCutcheon v. FEC – Campaign Finance (Argument Date: 10/8/13)

In 1976’s Buckley v. Valeo, the Court held that Congress can restrict the amounts of money people directly contribute to political campaigns, but not what they independently spend on political causes. The reason: direct donations pose a greater risk of corruption.

This case asks the Court to abolish that distinction and overturn Buckley, striking down McCain-Feingold’s limits on how much, in total, individuals may donate to candidates, party committees and PACs during a given election cycle. The Court’s decision could effectively deregulate the field of campaign finance.

Possible result: Based on John Roberts’s relatively restrained approach as Chief Justice and public outcry over the recent Citizens United ruling easing restrictions on corporate political spending, it seems doubtful the Court will take this radical step.

Schuette v. Coalition to Defend Affirmative Action – Racial Preferences (Argument Date: 10/15/13)

Following up on last term’s Fisher v. Univ. of Texas – which largely declined to revisit the constitutionality of racially-oriented college admissions programs – the Court jumps right back into the affirmative action fray. This time it considers whether state voters – here, voters in Michigan – can pass referendums barring government entities from discriminating or giving preferences, in contracting, education and employment, based on race or sex. In other words, is affirmative action constitutionally required or a matter of state prerogative?

Possible result: Given the current Court’s respect for states’ rights, the passage of time since it first upheld racial preferences and the arguable erosion of their underlying rationale – remedying the effects of past discrimination – the justices may well approve Michigan’s ballot initiative. Voters in at least one other state – California – passed a similar measure a few years ago.

Town of Greece v. Galloway – Public Prayer (Argument Date: 11/6/13)

Can a small town in upstate New York open public meetings with prayers from a “chaplain of the month” – usually a Christian, though atheists and members of other faiths are allegedly eligible – without violating the First Amendment’s ban on government-sponsored religion?

A lower court said no, ruling that the practice appears to endorse a particular faith. The High Court may say yes, following a 1983 precedent, Marsh v. Chambers, that sustained a similar practice in Nebraska, where legislative sessions began with a benediction from a Presbyterian minister.

While Establishment Clause jurisprudence is a mess, this case is unlikely to clear up the confusion; most of the justices are sympathetic to increasing religion’s role in public life and Marsh’s facts are closely on point.

CASES ON THE HORIZON

Abortion Rights

If the case clears a procedural hurdle – a legal question the justices sent back to a court in Oklahoma – the Supreme Court may consider whether states can constitutionally limit the use of drugs that induce abortions. An affirmative answer could curtail Roe v. Wade.

Health Care Reform

The Court will likely hear a challenge to the Affordable Care Act’s requirement that employers provide insurance coverage for birth control – even if they object on religious grounds. Analogizing to Citizens United – where the Court warmly embraced corporate free speech under the First Amendment – the provision’s opponents argue that it infringes corporations’ putative right to religious liberty under the First Amendment’s Free Exercise and Establishment clauses.

TAKEAWAYS

This term’s docket so far – more cases will be added in the coming months – lacks the marquee value of the last two, with their blockbuster rulings on Obamacare and same-sex marriage. Still, it continues the Court’s recent trend of reaching out to decide hot-button political issues.

This trend is arguably regrettable, impairing the Court’s credibility and degrading its integrity as an institution. It undermines public confidence in the justices as neutral arbiters, making the Court seem like just another partisan branch – not the impartial guardian of law Americans have always uniquely respected and admired. In this polarized environment, with faith in government at an all-time low, that perception can’t be good for the country’s future.

"Innocence of Muslims" Arrest a Travesty of Justice and an Affront to Free Speech

In jailing “Innocence of Muslims” filmmaker Nakoula Basseley Nakoula for the ruse of a supervised release – or federal parole – violation, the U.S. government has lost its way.

Sure, Nakoula probably violated his release terms by posting the controversial video on the Internet.  I don’t doubt that for a second.

But not every release violation results in revocation and prosecution.  To the contrary, many of them are routinely overlooked, the offender getting off with a warning or the imposition of stricter conditions.  That’s a function of the broad charging discretion federal prosecutors enjoy. 

In exercising that discretion to investigate and prosecute Nakoula – rather than overlook his infraction – the government sends an inescapable message: it will seize on technicalities to silence speech the administration dislikes, especially in campaign season.  That smacks of selective enforcement and chills the First Amendment in the name of placating an implacable foe – Islamic extremists that will despise and pillory us no matter who’s in office or how s/he tries to mollify them. 

It’s a sad day when Google and YouTube executives display greater respect and deeper appreciation for basic liberties than federal prosecutors, affording them vastly wider protection.  Some values transcend the punishment of minor supervised release violations.  Preserving an open society through free expression is one of them.

Despite the spin of Islamist apologists – and notwithstanding the administration’s insinuations on the world stage – Nakoula’s film is a far cry from hate speech, incitement or defamation.  Those forms of expression are outside the First Amendment and potentially actionable.  If anything, the film represents classic social commentary, conveying pure opinion and offering vintage satire on an issue of public concern.

That is core political speech, the First Amendment’s lifeblood.  And the right to engage in it is among the many qualities that set us apart from the radical Islamists who would wipe us off the face of the earth.  Lose that right and we have little worth defending. 

Let’s get more specific.  By Muslims’ own account, the doctrine of jihad is an article of Islamic faith.  In turn, jihad is a scriptural command that, in one sense, calls for the annihilation of nonbelievers.  In English, annihilating nonbelievers is commonly known as genocide – not jihad.  If genocide is not savagery, then what is?  Nothing.

Pointing that reality out, as do “Innocence of Muslims” and a recent New York City transit ad, does not disparage Muslims for being Muslim.  That is, it does not stigmatize them because of their status or based on their membership in a particular religious or ethnic group.  Instead, it condemns a discrete but central tenet of Islamic theology and deplores how certain adherents carry that dogma into action – much as an observant Jew might criticize the Catholic church for deifying Christ and slaughtering those who rejected him during the Crusades.

Denouncing jihad thus attacks an idea and the conduct it promotes.  It rebukes what devotees of Islam are told to think and some of their coreligionists -- increasingly joined by sympathizers of other stripes -- actually do.  In stark contrast, it does not vilify Muslims for who they are or how they choose to worship.  Challenging beliefs and behavior is what the First Amendment is – and always has been – all about. 

We are at war with Islamic fundamentalism, make no mistake.  The result will determine the shape of civilization for centuries and generations to come.  When we lock up Americans for speaking their minds – instead of pursuing the barbarians who use their words as a pretext to burn our embassies and kill our diplomats – we betray our guiding principles and cede the battle to the forces of tyranny.  If that’s how this President and his Justice Department plan to fight the war, our antagonists have already won and we should pack it in.

Gingrich Was Right, Virginia: Palestinians Don’t Exist

Newt Gingrich has some funny ideas about judicial independence.  But he hit the nail on the head when he called the Palestinians an “invented people” – even if he caught hell for it from outraged Arab apologists.  Problem is, Gingrich didn’t go far enough.  Let me explain.

I don’t put much stock in competing historical claims to the Holy Land.  By the 19th Century, when Zionists from around the world began returning after thousands of years in exile, large numbers of Jews and indigenous Arabs were living side-by-side – though not harmoniously – in Ottoman-era Palestine.  So the dueling historical claims are essentially a wash, effectively canceling each other out.

That leaves the universal political and military truth that the land “belongs” to whoever can defend it – the age-old adage that the victor gets the spoils.  Only in the Middle East – where Jews are expected to give back territory they won in repelling outside attacks – is that maxim turned upside down.

That’s because we’ve entered a third epoch of Jew-hatred – one in which anti-Semitism has become synonymous with, and is expressed through, anti-Israelism.  The first epoch, instigated by the Church, was religiously motivated, stemming from the blood libel that Jews killed Christ.  The second epoch, inaugurated by the Germans well before the Holocaust, was race-based, involving the pseudo-scientific canard that Jews were genetically inferior.

When those approaches failed to eradicate the scourge of Judaism, the bigots changed tacks and joined the political fray, conflating the concepts of anti-Semitism and anti-Zionism and sublimating the one into the other.  To be clear, this does not mean that the policies of the Israeli government are exempt from legitimate criticism because the policymakers are Jewish.  (Although one might argue that political criticism of Obama is muted in some circles partly because he’s African-American.)

But the vehemence and illogic of much of the criticism leveled at the Jewish state – not to mention its abject distortion and revision of the historical record – suggest that something more visceral and insidious than ideological disagreement is fueling it.   And that something is anti-Semitism by a different name, the same old Jew-hatred rebranded and adorned with political trappings.

If you study the area’s history, you can’t help but conclude that the indigenous Arabs of what became the State of Israel have an uncanny knack for shooting themselves in the foot.  They – not the Jews – are their own worst enemies.  And they – not the Jews – are chiefly responsible for their own predicament.

No group of people has made worse decisions or allowed more corrupt and feckless leaders to represent their interests.  When confronted with a choice between right and wrong, good and evil, peace and war, the indigenous Arabs and their regional allies pick the wrong side every time.  That’s unfortunate for them but lucky for the Israelis.  Because if they ever screwed their heads on straight and learned to get along with each other, they’d have driven the Jews into the sea long ago.  Having made 65 years of bad choices, the indigenous Arabs are living with the consequences, and will continue to suffer them until they change course.

Examples?  In 1946-48, when the British were leaving Palestine, the United Nations devised a plan to partition the land 50-50, with Jerusalem remaining an international city.  The Jews accepted.  The Arabs, greedy for the whole enchilada and unable to bear the affront of Hebrews in their midst, flatly rejected it.  That was the first in a cascade of poor decisions, and it’s the root cause of their plight today.  Yet, remarkably, the mainstream press virtually ignores it in chronicling the Arab-Israeli conflict.

Having shunned half a loaf, the indigenous Arabs and their neighbors compounded that costly mistake by provoking or launching clockwork-like wars to wipe Israel from the map in each of the next four decades – 1948, 1956, 1967 and 1973.  In hurling back the impending ‘67 invasion, Israel greatly expanded its territorial reach, improbably capturing Gaza, the West Bank, East Jerusalem, the Golan Heights and the Sinai Peninsula.  No other country on earth is asked to surrender land it wins in a war to defend its own borders.  But normal diplomatic rules don’t apply to Israel.  And those that do are based on anti-Semitism.

More recently, when Israel unilaterally withdrew from Gaza and its residents were given the vote, they promptly used it to oust the supposed moderate, Mahmoud Abbas, and elect Hamas, an Islamist terror group sworn to Israel’s destruction.  The pattern repeated this week in Cairo, when newly enfranchised Egyptians chose the Muslim Brotherhood – another band of thugs that’s waged decades of guerrilla war to annihilate the Jewish state – as their public face.

Together, these decisions expose the neocon creed of spreading democracy in the Arab world as fallacy if not fantasy.  Given a choice, Middle Eastern Arabs have proven they’ll make the wrong one time and time again.  The only things they understand, it seems, are hardcore realpolitik and pure brute force.

All that said, most secular Israelis would yield any captured land necessary to gain true peace, even if they shouldn’t have to.  Indeed, my family and friends there would give their eye teeth for peace.  The best evidence?  Look no further than Israel's return of the Sinai to the Egyptian aggressor under the Begin-Sadat treaty in the late 70s -- a treaty now threatened by Egypt's recent electoral choice.  But with the PA, Hamas and Hezbollah locked in eternal conflict, there’s no consensus Palestinian leader to negotiate with even if Israel wanted to.  So much for the vaunted Arab Spring. 

American Jews who deny these facts, blame Israel first and refuse to put the stalemate’s onus where it belongs – squarely on the Arabs themselves – suffer from what David Ben-Gurion called an “inferiority complex” left over from the shtetls and ghettos of Eastern Europe.  I feel sorry for them. 

 

Obama Our First Jewish Prez? Don't Believe the Audacity of Hype

Nobody who claims to care about the State of Israel should vote for Barack Obama.  There, I said it.  I’m one of the few American Jews not ashamed to speak this heresy.

But a recent New York Times poll showing a 40% drop in Obama’s local Jewish support suggests that more of my coreligionists are finally starting to join me – to wake up and realize the emperor has no clothes when he calls himself Israel’s best friend ever to occupy the Oval Office.  I guess Harry Truman and Lyndon Johnson aren’t on the menu at Harvard. 

The fact is that the record belies Obama’s rhetoric.  Indeed, nothing could be further from the truth.  Judged by his actions rather than words, Obama is a president profoundly ambivalent about the Zionist project – if not overtly hostile to it – and largely indifferent to the security of the Jewish state.

This is a man that not only spent 19 years worshiping with a pastor who spews Jew-hatred from the pulpit.  No, he actually named a book after the anti-Semite’s catchphrase – The Audacity of Hope – and appointed him an official campaign adviser.  But the media, enthralled with the feel-good narrative of a post-racial America, gave him a free pass for all of it.

As president, Obama perpetuates the charade of futile and one-sided negotiations with the Iranians while the Mullahs thumb their nose at the international community and buy time to shield their nuclear stockpiles from Israeli attack.

Equally offensive, Obama insulted Bibi Netanyahu on an open microphone – again without a whimper of protest from the mainstream press – and sits on his hands as Israel’s neighbors massacre their own people and further destabilize the region.

Sure, Obama courts the Jewish vote when he needs it.  Who can forget the 2008 campaign stop at a Philadelphia temple when he proclaimed Jerusalem Israel’s eternal capital to thunderous applause – an even more pro-Zionist stance than Pres. Bush dared take?  Less heralded were the next day’s events, when he immediately walked the declaration back – without a hint of compunction – as reporters pressed him on it.

Yet with the Jewish vote safely locked down, Obama felt confident enough to make triumphant victory tours of the Muslim world and lofty speeches in Cairo during his first month in office.  But almost four years later, he hasn’t seen fit to visit Israel – our closest and most reliable regional ally – even once.

For the piece de resistance, Obama demands that Israel halt settlement construction and pull back to pre-67 borders, yet voices only the mildest complaint – if any at all – when Palestinian rockets rain down on innocent Jewish school children, as they did again this week.

All of this merely emboldens the Arab street, incites more terror and jeopardizes Israel’s security. And it will only change if and when Obama is made to learn that he can’t take the Jewish vote for granted. The latest poll numbers from my home state are an encouraging and overdue step in that direction.