A lawyer in New York City responds to the Goldstone Report and offers a way to undo some of the…
New York, New York
October 19, 2009
Judge Richard Goldstone
Head of the UN HRC Fact Finding Mission on Gaza
Dear Judge Goldstone:
You have urged that fair-minded people read your 547-page Report on the Gaza conflict and, at the end of it, “point out where it failed to be objective or even-handed." I did just that. It is therefore disappointing that you have declined to respond to my letter (although I appreciate your acknowledging that you have read it), which highlights many serious flaws in your investigation and Report. In the hope that you may offer a substantive response, I am reissuing my critique as a formal "open letter" (in substantially the same form as before).
Your Report, by its very length, defends itself against the risk of being read quickly or widely, to paraphrase that infamous war criminal (by your definition) Winston Churchill.
I am profoundly disappointed by the contents of your Report, but I am also troubled by the ad hominem attacks that have been directed toward you. I offer this analysis and critique in the spirit of advancing the cause of truth and in the hope that you may yet be willing to take actions to mitigate the terrible injustice and damage that your Report is causing. To that end, I am respectfully including some suggestions for you at the end of this.
In a nutshell, your Report is a deeply flawed document that is not only unbalanced and inflammatory, but reflects a procedurally deficient rush to judgment incapable of producing any meaningful findings, least of all charges as grave, politically loaded, and emotionally laden as those of “war crimes” and “crimes against humanity.”
I acknowledge at the outset that your Report was difficult to read not only because of its obvious lack of balance but also because it does raise some hard questions about the precise manner in which Israel reacted to the years of rocket attacks against its towns and people and the threats it faces. I hope that, to the extent it has not already done so, Israel will investigate and explain the incidents you have highlighted, which have undoubtedly been part of a chain of events that has resulted in much human suffering. Sadly though, because your Report is so one-sided and unfair, these important questions may receive less attention than they deserve.
As someone who had expected a relatively fair and balanced investigation because of your involvement, I am struggling to understand why you would go out of your way, beyond even the “very lopsided unfair resolution” (to use your own words) of the group that authorized your Mission, to demonize Israel while legitimizing and even whitewashing Hamas. (For while you may object to that characterization, that is indeed what your Report does, as I describe below.)
I do not intend to focus on factual inaccuracies in your Report (which others better placed that I are already starting to address) but wish to emphasize rather the manner in which your investigation was conducted and its “findings” reported. The imbalance and partiality that permeate your Report are evident at many levels. They are manifested in the methodology you adopted to conduct your investigation and reach your conclusions, in the way in which you chose to characterize your Mission and select which incidents you would investigate and which you would ignore, in the fundamental premises that underlie your investigation and conclusions, in the manner in which you have misrepresented the history of the Middle East conflict, and in your use of language both throughout your Report and in your subsequent public statements. Of course this letter cannot be comprehensive but can only illustrate a few of the many examples where this one-sidedness shows through your purported factual and legal findings.
Your Procedurally Flawed Investigation
I made three points to you while you were conducting your investigation: (i) I implored you not to hold the Israeli government’s refusal to cooperate with your investigation against Israel or allow that to be a source of injustice, (ii) I begged you to try to find out the relevant facts regarding the activities and actions of Hamas and other terrorist groups operating in Gaza and Israel’s efforts to avoid civilian casualties, notwithstanding the refusal of the Israeli government to assist you, and (iii) I urged you to put your findings in their proper context. You said you would take these things into account, but unfortunately I now see my worst fears realized.
Passing Judgment Based on One-sided (and Tainted) Evidence. Your Mission took Israel’s refusal to cooperate as an invitation (or perhaps as an excuse) to allow the scales of justice to weigh with only one pan being filled. Time and time again, you made findings of fact based solely on evidence provided by the Palestinian side of the conflict (even though your Report expressly acknowledges that the testimony you received from witnesses in Gaza was tainted by duress, not to mention obvious, if understandable, bias). Almost every one of your “findings of fact” was arrived at using this formula: the direct evidence the Mission collected said X; no evidence to the contrary has been provided; therefore “on the information available to it, the Mission finds” X. And you did this in the full knowledge that you had heard only half the story. I understand that you and your fellow commissioners were outraged by Israel’s decision to snub you (as is evident in the numerous references to their refusal to cooperate throughout your Report — I stopped counting at 40), but if your investigation was truly seeking to uncover the truth, you quite simply could not have reached conclusions and made such momentous and awful accusations based on one-sided evidence. In your October 19 article in the Jerusalem Post, you state: “Our mission obviously could only consider and report on what it saw, heard and read. If the government of Israel failed to bring facts and analyses to our attention, we cannot fairly be blamed for the consequences.” I strongly disagree. As one entrusted to find the facts, you had a moral if not legal obligation to seek the truth, and if you were not able to do so, you should have said just that, rather than pretending that you have established the truth (“based on information provided”) when you knew that was not so and that you had only heard one side of the story.
Failure to Investigate Critical Facts. Moreover, your Report shows virtually no effort to look beyond the evidence presented to you (overwhelmingly from the Palestinian side) to find out what really happened in Gaza and — most crucially — why: why Israel launched the (unfortunately named) “Operation Cast Lead” and why individual officers and soldiers took the actions they did in the heat of battle.
To cite one important example, it was widely reported that the Hamas high command was camped out in the Al-Shifa Hospital, which would of course constitute a war crime and would probably have justified Israel attacking that hospital, notwithstanding the civilian presence there. Fortunately for any actual civilians in the hospital, the Israel Defense Forces (IDF) refrained (although neither that nor any other act of restraint by the IDF — and there is much evidence that the IDF pulled back from many attacks against legitimate military targets because of the presence of civilians — was deemed worthy of a mention in your Report). You note those reports about the Al-Shifa Hospital but simply state (at 466): “The Mission did not investigate the case of the Al-Shifa Hospital and is not in a position to make any finding with regard to these allegations.” You then immediately go on — astoundingly — to make a formal finding of fact (at 467) that "on the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations made by the Israeli government [that Hamas used medical facilities for cover]."
A second example of your Mission’s inappropriate wholesale reliance on one-sided evidence relates to your findings that Israel’s attacks on the Legislative Council building (in which you note there were no casualties) and Gaza main prison (in which a prison guard was killed) were war crimes. In your standard formulation, you conclude: “There is an absence of evidence or, indeed, any allegation from the Israeli Government and armed forces that the Legislative Council building, the Ministry of Justice or the Gaza main prison ‘made an effective contribution to military action.’ On the information available to it, the Mission finds that the attacks on these buildings constituted deliberate attacks on civilian objects in violation of the rule of customary international humanitarian law.” It is notable that this finding follows your observation (paragraph 367, footnote 235) that there was evidence that of the approximately 300 prisoners in custody in the prison at the time it was struck, there were “roughly 115 alleged collaborators with Israel [and] about 70 Fatah supporters held on various charges.” Even without Israel’s having to spell it out for you, you might easily have discerned several potential military advantages to be obtained from attacking this prison (which based on evidence your Mission uncovered does not appear to be a facility dedicated solely to civilian activities of the Gaza authorities) and facilitating the escape of its inmates. Your rejection of Israel’s determination to attack the “command and control” infrastructure of Hamas is rooted in the distinction that you insist on drawing between Hamas and its military wing, and your insistence on the legitimacy and sanctity of the former. These highly dubious premises that underlie many of your “war crime” findings fly in the face of the broad recognition of Hamas as a terrorist organization.
Use of Hearsay and Anonymous Accusations as Evidence. Another serious procedural flaw in your Report is your reliance on hearsay and accusations made anonymously to “corroborate” your allegations. One clear example of this is the anonymous report by a group called Breaking the Silence entitled “Soldiers’ Testimony from Operation Cast Lead, Gaza 2009,” which is cited dozens of times in your Report as providing “strong corroboration” and whose validity and veracity you accept without question. Indeed you criticize Israel’s efforts to lobby countries that funded this anonymous report as “contrary to the spirit of the Declaration [on Human Rights Defenders].” As a judge, you must obviously appreciate that such anonymous accusations, particularly to the extent they merely recite what the anonymous speaker heard from some other source, and are thus pure hearsay, would not be admissible as evidence in a court, precisely because the prejudicial impact of those allegations is far outweighed by any probative value they may have. I expect that your response may be that your investigation was not a court of law and therefore not subject to the same evidentiary rules. But I would argue that, in this situation, where the prejudicial impact on Israel and the Jewish people in general of your accusations of “war crimes” and “crimes against humanity” was obviously going to be so devastating, it behooved you and your fellow commissioners to, at a minimum, adhere to basic principles of evidence and procedural fairness.
More Prejudice than Proof. Indeed, this failure to strike an appropriate balance between what is probative and what is prejudicial is a central feature of your investigation and your Report. There are innumerable examples of offhand remarks and references in your Report to terrible things that Israel and Israelis are alleged to have done, without any justification or evidence offered. Sometimes these are stated as naked allegations (for example, you refer to “concerns of torture and other ill-treatment” of Palestinian detainees) (209), while on many other occasions they are simply stated as facts, even though they are not facts. To cite just one example, at 642 you state: “On 5 February 2003, for instance, Israeli snipers shot and killed two staff nurses who were on duty inside the hospital.” These unsubstantiated and often false allegations reflect a bias and a flagrant disregard for the basic principles of due process and all norms of fairness and justice. One last — and more serious — example of this disregard for the balance between probative and prejudicial is your decision to televise the interviews with Palestinian witnesses. You state (at 166): “The purpose of the public hearings, which were broadcast live, was to enable victims, witnesses and experts from all sides to the conflict to speak directly to as many people as possible in the region as well as in the international community. The Mission is of the view that no written word can replace the voice of victims.” It hardly bears mentioning that any probative value of these interviews (particularly when they tell only one side of the story and, as you acknowledge, were tainted by duress) does not justify the inflammatory effects of televising them before the Report is issued. The fact that you chose to publicize these hearings is a further indication that your Report was designed to play into a trial in the “court of public opinion,” rather than to be a true finding of facts.
The Appointment and Composition of your Mission. Speaking of the “court of public opinion” provides a good segue to my next procedural point. I will not belabor the well-aired point that Christine Chinkin should have been recused at the outset owing to the evidence of her predisposition to find Israel guilty of war crimes. That fact alone should be sufficient to render your Report tainted and unreliable. What has received less publicity was that you and the other two members of your panel were among a small group of eminent jurists who had written to the secretary-general of the United Nations, expressing that “events in Gaza had shocked [you] to the core,” effectively volunteering for the job you were later given. While I could be wrong, I do not believe that this group of jurists had ever written to the United Nations expressing such shock or called for an investigation during the eight years of rocket attacks on Israeli civilian population centers. If that is the case, that would also suggest a predisposition among the signatories of that letter to seek to make an example of Israel only and would call into question their impartiality. I also wonder whether this group or these jurists independently called for similar investigations into other comparable incidents, the shelling of Groznyy, perhaps, or the Sri Lankan government’s actions against the Tamil Tigers.
Double Standard in Assessment of Credibility of Evidence and Intentions. One of the most surprising elements of your Report is the ease with which you made findings of fact regarding the subjective intentions of the Israeli government and individual Israeli solders to strike at civilian targets and to murder civilians. In fact, you assert that you were able to determine the presence of the subjective fault element (mens rea) required for criminal liability “in almost all of the cases [you examined].” (25) Your accusations that Israel willfully and intentionally attacked civilians could not be more stark. To quote just one of very many examples: “In reviewing the above incidents the Mission found in every case that the Israeli armed forces had carried out direct intentional strikes against civilians.” (808) And you purported to be able to make these determinations without once speaking to the Israelis whom you accuse of such horrific actions and intentions. In contrast, you were virtually never able to ascertain any improper intention on the part of the Palestinian parties to this dispute even where the intention behind their actions would seem to be fairly obvious and even though you “enjoyed” their full support and cooperation.
Example: Firing rockets from civilian areas: “On the basis of the information it gathered, the Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas. The Mission has not been able to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrokes by the Israeli armed forces.” (480)
Another example: Hamas fighters mingling with civilians: “The Mission finds that the presence of Palestinian armed fighters in urban residential areas during the military operations is established. . . . While reports reviewed by the Mission credibly indicate that members of Palestinian armed groups were not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack.” (481)
The evidence on which you base your conclusions that Israel consistently and as a matter of policy attacked civilians and civilian objects consisted of the fact of Israel’s technological superiority and on statements by a handful of Israeli leaders. The section on Israel’s strategy in your Report concludes (at 1211): “Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.”
Aside from the inadequacy of using this sort of circumstantial evidence to determine subjective intentions, and the fact that you have a tendency to take these quotes out of context, it is striking how unhesitatingly and how fully you attribute probative value to public statements by Israeli leaders (even if they appear to have been made in a political context and could easily be understood to be mere “puffery”). On the other hand, your Report does not include any quotes from Hamas leaders regarding their intentions to attack Israeli civilians — or the Hamas charter, which calls for the destruction of Israel and killing of Jews — and even when Hamas does admit that it uses human shields or that policemen killed by Israeli strikes were its operatives, you cast doubt on that admission and suggest that it is mere puffery. Even in cases of “Palestinian armed groups” firing rockets at Sderot in Israel where their intentions are quite obvious, you are unwilling to attribute any subjective intent but merely find that “there is significant evidence to suggest that one of the primary purposes of the rocket and mortar attacks is to spread terror amongst the Israeli civilian population.”
This double standard in your treatment of witnesses is also evident throughout your Report where you accord full credibility to virtually all Palestinian witness and praise their objectivity (even though you acknowledge the presence of duress) but almost invariably cast doubt upon Israeli accounts you received. The Israeli government cannot even acknowledge an error without your Report casting doubt on it, while the only times you seem to doubt the credibility of Palestinian witnesses is when so doing would be exculpatory.
I could go on and on with examples but the point is clear: your Mission simply took the accusations made by obviously interested parties and (by your own admission) coerced witnesses, in some cases “corroborated” by anonymous reports, and repackaged them into “findings of fact” and the most horrific of allegations. Virtually no effort was made to uncover the truth or to get behind the accusations and ask why particular actions were taken, beyond asking Israel to explain and drawing a negative inference from their refusal, on principle, to respond. You may disagree with Israel’s decision to ignore your Mission, but when that becomes the fundamental linchpin on which you reach your conclusions, that is not fact-finding. It is politics. I myself was unsure of the Israeli government’s decision not to cooperate with your investigation, but it becomes hard to argue with those who say that your Report validates the view that the deck was so stacked against Israel that it was not worth playing the game.
Your Selection of Incidents to Investigate
A closely related point is your Mission’s selection of which matters to investigate and which to ignore. Your Mission investigated 36 incidents in Gaza and stated that it “considers that the report is illustrative of the main patterns of violations.” (17) Since virtually all these incidents were cases involving Israeli actions and Palestinian casualties or damage, it is clear that the “pattern of violations” that interested you most were those where Israel could be condemned.
As discussed above, the efforts you made to find the relevant facts underlying the operation left much to be desired. Very little effort was made to investigate the behavior of Hamas and the other “Palestinian armed groups”: Did they direct attacks at civilian targets? Did they use civilians as human shields? Did they hide weapons in civilian buildings like mosques, schools, and hospitals? You do not even raise as a possibility whether Hamas and the other “Palestinian armed groups” intentionally drew fire toward civilian objects to score public-relations victories (I do not believe in their wildest dreams they ever expected the PR and strategic windfall that you have awarded them), although this appears to be a central element of their moqawamma (“resistance”) strategy. I understand that seeking those facts was difficult — the people you were talking to would not talk about that (because of both bias and intimidation) and the people who would talk about it (the Israelis) refused to talk to you — but that should not relieve honest fact finders of their obligation to try to find the facts. Reviews by others of the video clips of interviews with Palestinian witnesses posted on your website suggest that you did not even press witnesses for answers to these questions. Instead you simply relied on the absence of countervailing evidence to validate the “facts” reported to you by those biased and intimidated witnesses.
On a few occasions, you accepted the “possibility” that there might be another side to the story that you “could not entirely discount,” that is, that there may have been inappropriate actions on the Palestinian side. For example: “The Mission finally notes that it cannot entirely discount the possibility that Palestinian civilians may have been killed as a result of fire by Palestinian armed groups in encounters with the Israeli armed forces, as argued in a submission to the Mission, although it has not encountered any information suggesting that this was the case.” (361) “While the Mission would not rule out the possibility that there might be individuals in the police force who retain their links to the armed groups, it believes . . .” (417) “The Mission accepted, on the basis of information in the reports it had seen, the possibility of mortar attacks from Palestinian combatants in the vicinity of the school.” (444) The Mission cannot discount the possibility that Palestinian armed groups were active in the vicinity of such [United Nations] facilities.” (483)
However these matters were never investigated to the point of ascertaining whether they amounted to war crimes or whether they justified the Israeli actions under investigation. For the most part, you were satisfied simply to state that you were unable to make any determination regarding these matters: “The Mission is unable to make any determination on the general allegation that Palestinian armed groups used mosques for military purposes.” (484) “On the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities.” (485) “On the basis of the information it gathered, the Mission found no indication that the civilian population was forced by Hamas or Palestinian armed groups to remain in areas under attack from the Israeli armed forces.” (486)
On other occasions, where the evidence of bad behavior on the Palestinian side was so clear you could not deny it or profess ignorance, you proceed — astonishingly — to justify it or explain it away.
Example: Firing rockets from civilian areas: “The Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas. . . . Palestinian armed groups do not appear to have given Gaza residents sufficient warning of their intention to launch rockets from their neighbourhoods to allow them to leave and protect themselves against Israeli strikes at the rocket launching sites. . . . Given the densely populated character of the northern half of the Gaza Strip, once Israeli forces gained control of the more open or outlying areas during the first days of the ground invasion, most — if not all — locations still accessible to Palestinian armed groups were in urban areas.” (480) In other words, you explain and even seek to justify Hamas’s actions endangering civilians because it would have been dangerous for it to fight Israel otherwise.
Another example: Booby-trapping houses: “From the information it gathered, the Mission does not discount the use of booby traps by the Palestinian armed groups. The Mission has no basis to conclude that civilian lives were put at risk, since none of the reports records the presence of civilians in or near the houses that were allegedly booby-trapped.” (482) Your willingness to accept a “no-harm-no-foul” defense for booby-trapping civilian houses is as telling as your reluctance to find improper intentions on the Palestinian side.
These few examples (of the many more that could be cited) should suffice to demonstrate that your Mission chose only to investigate one side of the conflict (Israel), and made its findings based on evidence presented by only one side of the conflict (the Palestinians).
Your Characterization (and Extension) of Your Mission HRC Resolution S-9/1, that “very lopsided unfair resolution” (again, those are your words) which was introduced by Cuba, Egypt, and Pakistan and passed by many of the world’s most repressive regimes, established your “fact-finding mission” to gather evidence to support their determination that Israel had violated the human rights of the Palestinian people. When you agreed to head the Mission, to your credit you insisted to the president of the HRC that your Mission be authorized to look at violations on all sides. It is therefore very surprising that you made so little effort to find the facts relating to violations on the Palestinian side, as described above. Equally surprising is how you chose to characterize your Mission and even broaden its scope in certain respects, all of which appear to have the purpose and most certainly had the effect of heightening criticism of Israel. It is interesting that even the terminology in which you chose to cast your allegations against Israel is more extreme than that used in the “very lopsided unfair resolution,” which spoke in terms of human-rights violations but did not talk about “war crimes” or “crimes against humanity.” That phraseology, with all its evocative connotations for the Jewish people, is all yours.
Seeking Political Impact Rather than Truth. Instead of viewing yourselves as a fact-finding mission, with the specific purpose of uncovering the truth, you chose to characterize yourselves as a victim-oriented mission: “The Mission gave priority to the participation of victims and people from the affected communities.” (22). “The Mission has made victims its first priority and it will draw attention to their plight.” (136)
Such a victim-focused investigation is not an appropriate method for establishing the facts in a conflict such as this. There are undeniably more victims on the Palestinian side of the conflict, but “draw[ing] attention to their plight” is not a fact-finding objective. It is a political objective. In some cases, such as the South African Truth and Reconciliation Commission, which appears to have been, at least in part, the model for your proceedings, that may be appropriate and very laudable. However, that is not the job of a fact-finding mission in the midst of an ongoing political conflict. The question that the honest fact finder should be trying to answer is not how can I “draw attention to their plight” but whose victims are they? It is clear from your Report, and apparently from the videotaped interviews that your Mission has published, that you were far more concerned about effects than causes, and not asking enough of the right questions.
Lawmaking Rather than Fact-Finding. A second manner in which you extended the scope of your fact-finding mission was in your decision to go beyond fact-finding and to express legal opinions on which you then based your accusations of war crimes. For example, the question of whether Gaza should still be considered “occupied” following Israel’s unilateral and complete withdrawal is a legal question and a highly contentious one. Certainly Israel maintains that Gaza is no longer occupied, and there are strong arguments in that regard. That substantive question is beyond the scope of this letter, but the point is that you chose to reach a legal conclusion in the context of a fact-finding mission, based very grave accusations on that legal position, and did so with no due process and no opportunity for debate on the merits of the legal issue.
A second instance of lawmaking is your holding that the “Israeli system of investigation does not comply” with the “standards of impartiality, independence, promptness and effectiveness” required by international law. I will leave it to others better placed than I am to address the substance of your holding and note only that it is my understanding that the Israeli standards for investigating the actions of its own military are not very different from those followed by the United States, Britain, and other modern countries with active and honorable militaries.
Similar (although probably a matter of mixed fact and law) is your finding that the Gaza police force was a civilian police force entitled to protection under international humanitarian law. To be sure, you did some fact-finding. You unearthed the details regarding the IDF’s attack on the Gaza police stations at the outbreak of the operation. You also established that, after Hamas seized control of Gaza in July 2007, it “merged the Gaza police with the ‘Executive Force’ it had created after its election victory” and that “a great number of the Gaza policemen were recruited among Hamas supporters or members of Palestinian armed groups.” You noted that you had been provided with information on Gaza police members’ alleged affiliation with armed groups that purported to be “based to a large extent on the websites of the armed groups” themselves, and you accepted (in your usual noncommittal way regarding allegations against Palestinians that you preferred not to investigate) “that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants.” You nevertheless concluded: “From the facts gathered by it, the Mission finds that there is insufficient information to conclude that the Gaza police as a whole had been ‘incorporated’ into the armed forces of the Gaza authorities” and that the Gaza police were a “civilian law-enforcement agency.” Clearly Israel had a different view on this issue, but again you were happy to reach this conclusion — and the resulting verdict of guilty of “war crimes” — without their input.
Piling on Gratuitous Anti-Israel Criticisms.You also expanded the scope of your Mission beyond what was required by the HRC’s “very lopsided unfair resolution” in other notable respects. You expend more than 20 pages criticizing Israel for “repressing dissent” and limiting freedom of association as well as for excluding the press and human-rights monitors from Gaza during the operation. This is not only gratuitous given the primary scope of your Mission and the many important areas you decided not to investigate at all but ironic in the extreme given the critical mass of highly repressive countries that commissioned your Report. Israel is a robust democracy — the only one in the Middle East — and has a vigorous free and highly critical press and a strong commitment to human rights. Very few of its accusers can claim that. The limited actions taken in the middle of a war to prevent the opening of a second front (even your Report acknowledges that, “in the main, the protests were permitted to take place” ) have to be seen against this backdrop. I know I am not alone in wishing that eminent jurists like yourselves would devote as much time and effort to criticizing repression of dissent in Iran, China, Zimbabwe, Cuba, and a host of other countries as you have investigating and formulating such allegations against Israel.
It is also telling that you and your fellow commissioners even felt compelled — in the context of a fact-finding mission regarding the war in Gaza — to call into question Israeli laws that are central to its identity as the Jewish homeland, including the so-called Law of Return that guarantees Israeli citizenship for all of Jewish ancestry.
The above examples show that the way you chose to characterize your Mission and the scope you established for your investigation and Report reflect a biased and political effort. What did you do when the “very lopsided unfair resolution” of the HRC commissioned your group to find facts to support their determination of human-rights violations by Israel? You did that and more: you decided to use your Mission as a political vehicle to “draw attention to [the victims’] plight; you established new legal standards, which you then found Israel did not live up to; you gratuitously (and ironically) lambasted Israel for repressing dissent and freedom of the press and association; and you even gratuitously raised questions concerning Israel’s right to exist as a Jewish state.
Fundamental but Dubious Assumptions
Without denying that there are matters raised in your report that deserve further investigation and explanation by Israel, it appears that your wholesale condemnations of Israel and accusations of “war crimes” rest in large part on certain fundamental premises or a “worldview” shared by you and your fellow commissioners. These premises reflect assumptions that underlie much of your Report, but their validity is not incontrovertible. Indeed they are highly contentious and to the degree that these assumptions are wrong, your Report’s conclusions are invalid.
Legitimizing Hamas. One of these fundamental assumptions that permeates your entire analysis is that Hamas is a nonviolent political organization distinct from its military wing. This characterization of Hamas is entirely implausible. It requires more than naiveté to reach that conclusion, in light of all the readily available evidence, including that organization’s refusal to renounce the use of violence or even to recognize the existence of the State of Israel (which together torpedoed the peace process and damned Gaza to its present state of destitution), the express statements of Hamas’s own leadership regarding the use of violence and terrorist tactics, and the fact that the Hamas charter calls for the destruction of Israel and genocide against the Jewish people (which remarkably does not merit a mention in your Report). Because it openly embraces terrorist tactics, Hamas is widely condemned as a terrorist organization. In light of all the readily available evidence, the suggestion that Hamas can be neatly separated from its military wing is spurious.
Earlier I stated that your Report not only legitimizes but whitewashes Hamas. Although the press has chosen not to highlight this, a close review of every reference to Hamas throughout your Report will reveal that, while there are some perfunctory condemnations of “armed Palestinian groups” (which include Hamas’s al-Qassam Brigades) and some measured criticism of the “Gaza Authorities” regarding things they could have done better (sins of omission rather than commission), Hamas itself gets off virtually scot-free in your Report and even emerges looking like an innocent victim. My point here is not to refute as a substantive matter that highly troubling aspect of your Report — I shall leave that to others — but simply to observe that a critical assumption underlying many of your claims of “war crimes” is that Hamas should be considered independent of its infamous military wing. To the extent that this assumption is flawed, the conclusions on which it is based are invalid. But the very fact that you approached your fact-finding mission with this as a basic assumption indicates a perspective that calls the conclusions drawn by your Mission into question.
Gaza Still Occupied? A second fundamental assumption, discussed above, is the notion that Gaza remains occupied by Israel, notwithstanding its complete unilateral withdrawal four years ago, which, in your view, has “‘done nothing’ to alter the character of Israel as an occupying Power.”  Again, I will leave it to others to debunk this dubious legal conclusion, noting simply that it is one of the foundations on which you build your case for the prosecution. The implications of your position are dramatic. For example, although Israel facilitated the supply of significant humanitarian aid to Gaza and even your Report acknowledges “that the supply of humanitarian goods, particularly foodstuffs, allowed into Gaza by Israel temporarily increased during the military operations” (72), you nevertheless condemn Israel as violating the Fourth Geneva Convention for not doing enough “as Occupying Power” to provide such supplies. In other words, your report twists Israel’s humanitarian efforts (done from its perspective out of kindness rather than legal obligation) into a war crime because you reached a different legal conclusion on the status of Gaza. If you are wrong in your conclusion that Gaza remains occupied, then rather than being condemned as war criminals, Israel should be commended for its humanitarian efforts to support the Palestinian civilian population even while that it was in the midst of a bloody war to root out the terrorists who had converted their homes into rocket-launching sites.
Placing Blame. Perhaps the most fundamental and flawed assumption underlying your Report is the position that the tragic situation of the Palestinian people, and especially those in Gaza, is all Israel’s fault. That your Mission is of this view is clear from the way you characterize (or rather mischaracterize) the history of the region; it is clear from your use of language throughout your Report; it is clear from your failure to seek to understand why actions were taken — why Israel shut border crossings? Why Israel built the security barrier? Why Israel felt the need to undertake the Gaza operation at all? And it is clear from your refusal to acknowledge what Hamas and its charter say unequivocally that Hamas exists to destroy the Jewish state. Your perspective is also clear from specific statements, including the curious analysis you offer in one of your concluding paragraphs: “After decades of sustained conflict, the level of threat to which both Palestinians and Israelis are subjected has not abated, but if anything increased, . . . The State of Israel is therefore also failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power.” (1711) It is telling that it is Israel you criticize in this regard, and it is unclear what you expect Israel to do in the face of a foe that refuses to negotiate but only wants to fight.
There are other elements of the “worldview” with which you and your fellow commissioners approached your assignment and which impacted your Report — assumptions regarding Israel’s right to exist as a Jewish state at all, for example, or regarding the legitimacy of a separation barrier to protect Israeli civilians from terrorist attacks, or whether Israel is a decent country. (For example, at 132 you state: “The Mission is also of the view that the Israeli system presents inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult.”) This is not the place to debate these interesting topics; I mention them solely to make the point that there are perspectives and prejudices that underlie your investigation that cannot but influence your findings.
Your Ahistorical Context
While you accepted that the Gaza operation and events under investigation should not be considered in isolation, nevertheless you and your fellow commissioners did not mean they should be placed in the context of the thousands of rockets that were fired from Gaza at Israeli towns since Israel’s unilateral and complete withdrawal from Gaza. No, to you, Israel’s actions “are part of a broader context, and are deeply rooted in the many years of Israeli occupation of Palestinian territory.”
The “historical context” offered by your Report is not a history that any objective person with any knowledge of the Middle East would recognize. On the contrary, what you chose to include in the brief historical context you provide is a simplistic canned recitation of the revisionist “Palestinian narrative.”
Numerous affirmative statements in your Report mischaracterize the history of the region but more telling is what you chose to leave out. How, for example, can you purport to deal with the conflict between Israel and Hamas without once mentioning that the charter of Hamas calls for the destruction of the State of Israel? How can the historical context you cite make no reference at all to the persistent pan-Arabist rejection of the State of Israel, the many wars that were waged against Israel by many Arab states, the terror campaign waged against Israel by Hamas (save for a couple of lines that cites the number of suicide bomb attacks “according to Israel’s Ministry of Foreign Affairs”)? Your Report fails to address the fundamental question of why the Gaza operation was launched at all, or why Israel had to build its security barrier (which you criticize), or why the border crossings were frequently closed. Indeed a reader of your Report with limited knowledge of the situation would have to conclude based on the absence of any of this background and the numerous accusations you make against Israel of intentionally targeting Palestinian civilians that Israel’s intentions were genocidal (which would be ironic since it is, of course, Hamas that propagates a genocidal philosophy against Israel and the Jewish people). They would also have to conclude that the IDF was terribly incompetent, given their low rate of success if they were deliberately targeting Palestinian civilians, with some 2,300 to 3,000 sorties flown during the operation and their overwhelming firepower from land, sea, and air. Without minimizing in any way the terrible tragedy inherent in any loss of life of innocent civilians, the number of casualties relative to the amount of firepower brought to bear surely indicates that significant efforts were made, including through careful targeting and provision of warnings, to avoid loss of life.
You purport to go through a detailed chronology of events that seems to show how every rocket attack by the “Palestinian armed groups” was in fact a response to some Israeli provocation. The clear suggestion from your recitation of events is that what happened in the years between Israel’s unilateral withdrawal from Gaza and the Gaza operation was not just a “cycle of violence” (the mantra favored by reporters who wish to draw a moral equivalence between Israel and its attackers) but that the problems were actually instigated by Israel. Set against the incontrovertible fact (that again — astoundingly — your Report does not even mention) that Hamas’s stated goal is not the liberation of Gaza but the destruction of Israel, it can only be said that the historical context in which you place the operations under investigation is derived from a Palestinian fairy tale.
I could go on, but I think the point is clear that the historical context you adopted and with which you approached your assignment is a biased and ahistorical one, which reflects a pro-Palestinian, anti-Israel political worldview that dictated the tone and preordained the outcome of your investigation.
The Language of Your Report Illustrates Its Bias
As already shown by the various quotes taken from your Report, the language used throughout your Report defies any claim of evenhandedness. This is evident in the big themes, as when you wax eloquent about “the right of the Palestinian people to self-determination” without ever noting the denial by Hamas and others who refuse to accept Israel’s legitimacy of the Jewish people’s right to self-determination (and indeed, you even call the latter into question yourself). And it is evident in the hundreds of little references peppered throughout your recitation of the historical background and your “findings of fact” that are stated in ways unfavorable to Israel (and questionable in fact). To mention just a handful of arbitrary examples: there is the recitation of Israeli aircraft attacking a “car maintenance workshop” (without any explanation that it was probably also a rocket factory) (261); there is the description of the tunnels built under the Gaza-Egypt border as “a lifeline for the Gaza economy and the people” enabling them to get “fuel . . . as well as consumables” without even mentioning the smuggling of rockets, IEDs, and other weapons (253 and 320); there are the unsubstantiated incidental “drive-by” allegations of intentional attacks on civilians (for example, that an Israeli plane “fired a missile at a group of Palestinian children who were sitting in a street” ); there are all those references to “blockades” and “occupation” (even after the Israeli withdrawal from Gaza); and of course there is the refusal ever to use the word terrorist or terrorism except when quoting an Israeli source. Indeed, an analysis of the use of the word terror of your report will reveal the ironic fact that Israel is the only party in connection with whom you use the word terrorize and the party you frequently accuse of spreading terror, with just one acknowledgment of the terror caused by more than 8,000 rockets fired by Hamas and its ilk (without mentioning them by name, of course).
Differences in Tone and Equivocation. Your “findings” and accusations against the Israeli government and the IDF, which overwhelmingly dominate your Report, are expressed unequivocally and in words of one syllable using the most serious accusation that can be made: “war crimes.” You repeat this charge against Israel over and over again. See, for example, paragraphs 1169 to 1173, even though you did offer your standard perfunctory acknowledgement that you did not have all the facts (without saying that all the “facts” you did have came from one side): “From the facts available to it, and in the absence of any information refuting the allegations that the incidents described above took place, the Mission finds that there have been a number of violations of international humanitarian law and human rights law.”(1165)
Your criticisms of the “Palestinian armed groups” are not only far fewer and more limited but are also much more tentative and measured, and of course Hamas itself is almost untouched. As described above, for the most part you simply avoid looking at Palestinian offences, either just saying you are “not in a position to make any finding” or expressly exonerating them “on the basis of your investigations” or on occasion saying you “cannot exclude the possibility” of bad actions. Of course, you cannot avoid acknowledging that “Palestinian armed groups have launched about 8,000 rockets and mortars into southern Israel since 2001.” These rocket attacks, you determined (in your boldest accusation against the Palestinians), “constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity. Given the seeming inability of the Palestinian armed groups to direct the rockets and mortars toward specific targets and given the fact that the attacks have caused very little damage to Israeli military assets, the Mission finds that there is significant evidence to suggest that one of the primary purposes of the rocket and mortar attacks is to spread terror amongst the Israeli civilian population, a violation of international law.” (109) The tone and equivocation with which you make this one finding against “Palestinian armed groups” is quite different to that used in your multiple accusations of war crimes against Israel. And, of course, the charge is virtually meaningless anyway, because no party that can be held accountable is named.
Israel Can Do Nothing Right in Your Eyes. Another striking feature of your Report is how every positive action Israel takes is twisted into a negative and an accusation, generally of war crimes. We have already noted how the very substantial amount of humanitarian aid facilitated and delivered by Israel even in the midst of an ongoing war was regarded by you as inadequate to fulfill its obligation as “Occupying Power” and was thus a violation of the Geneva Convention. The same pattern is evident in your consideration of the multilevel warning system Israel instituted to try to minimize civilian casualties, which has been described as “unprecedented in the history of warfare.”
You do devote two lines to acknowledging Israel’s efforts is this regard: “The Mission acknowledges the significant efforts made by Israel to issue warnings through telephone calls, leaflets and radio broadcasts and accepts that in some cases, particularly when the warnings were sufficiently specific, they encouraged residents to leave an area and get out of harm’s way.” (37) But you then proceed to spend about 10 pages detailing why these efforts were imperfect and inadequate, so that Israel’s conduct still amounted to war crimes.
One particular case is quite instructive. Israel was aware that a favorite Hamas tactic when they receive a warning that a particular house is about to be targeted (because it is used for storing weapons or for some other reason) is to send people (civilians?) up onto the roof to wave off the Israeli planes. It is not clear whether these “human shields” perform this task willingly, as suggested by Hamas leader Fathi Hammad, or are coerced, but in either case, the fact that they do it suggests they have a greater appreciation for the IDF’s restraint than you seem to have. Knowing this, Israel invested in the technology and training to effect a “warning shot” by missile, the practice referred to as “roof knocking.” There is video evidence of its efficacy. This tactic could be viewed as an innovative effort to add a layer of warning to lower the risk of civilian casualties when striking at legitimate military targets. You, however, chose to describe it as “reckless in the extreme,” saying: “the idea that an attack, however limited in itself, can be understood as an effective warning in the meaning of article 57 (2) (c) [of Chapter IV of Additional Protocol I to the Geneva Conventions] is rejected by the Mission.” (530 to 533) One wonders if you would apply the same standard to any warning shot, which I expect would be a novel interpretation of the laws of war.
I will cite one final example of how in your Report almost everything Israel does is twisted to portray it in the worst possible light. Your Report notes that, because of the thousands of rockets that have been launched at Sderot and other Israeli cities and towns nears the Gaza border, Israel installed at great cost a warning system that would give residents 15 seconds’ warning of incoming rockets. Your principle reason for mentioning this appears be so that you can condemn “the disparity in treatment of Jewish and Palestinian citizens by the Government of Israel in the installation of early warning systems and provision of public shelters and fortified schools between its Jewish and Palestinian citizens,” even though the Palestinian towns and informal villages are not the target of the rocket attacks from Gaza. (110, 1714)
Gilad Shalit. Your treatment of the Shalit matter is troubling. Contrary to press reports, even after hearing from his father, you could not even bring yourself to demand his immediate release by Hamas. The most you can bring yourself to do is issue a “recommendation” to unidentified “Palestinian armed groups” that he be released “on humanitarian grounds” and until then be treated as a “prisoner of war.” (1770) For the most part, your discussion of Shalit consists of criticizing Israel’s heavy-handed response after he was “captured during an enemy incursion into Israel,” and your indication of concern that Israel not impose “collective punishment of the civilian population of the Gaza Strip” by “maintaining the blockade of the Gaza Strip until the release of Gilad Shalit,” as some Israeli politicians have suggested (78). Your approach to the Shalit matter appears to be, consistent with the rest of your Report, that his capture was a legitimate act of resistance on the part of “armed Palestinian groups” against the ongoing “Israeli occupation.” Gilad Shalit was captured in an illegal cross-border raid by Hamas (and others), which constituted an act of war and a grave escalation in hostilities. You (and Hamas) cannot have it both ways: you cannot consider Shalit a “legitimate” prisoner of war unless you are willing to admit that Hamas-ruled Gaza is actively at war with Israel, with all that entails.
Post-Publication Comments. I have seen reference to a number of public statements you have made publicly following the release of your Report that have added to my consternation. One of these arose in an interview with Christiane Amanpour when she asked you about whether the standards you were applying to Israel and possible International Criminal Court proceedings might not implicate “what NATO or the U.S. is doing, let’s say, in Afghanistan or in Iraq.”
You responded by saying: “Well, that’s correct. But the United States, I think to its credit, has always taken care to protect innocent civilians. When innocent civilians have been killed and injured, it hasn’t been because it was intentional. It may have been negligent, it may even have been, and I don’t know I haven’t looked in to it, it may have been more than negligent but I have no doubt that it hasn’t been deliberate.”
I firmly share your conviction that the United States does not intentionally target civilians. I also firmly believe that is true of Israel. What troubles me is how you, as a judge, can make such a statement without having done any investigation whatsoever. Coupled with your unsubstantiated “findings” that Israel intentionally attacked and murdered hundreds of civilians, this statement speaks volumes.
I also wish to comment on a statement you made in your address to the HRC delivering your final Report. You stated that “the teaching of hate and dehumanization by each side against the other contributes to the destabilization of the whole region.” The teaching of hate and dehumanization by Hamas and even the Palestinian Authority is well known and well documented. I am curious about what research you did to conclude that Israel teaches “hate and dehumanization” of Palestinians. I think it very likely that your statement was not researched at all but was just another superficial attempt to sound evenhanded but one that leads to injustice.
The Implications of Your Report
I had hoped that, even though your Mission was the product of a manifestly biased institution and process (as you have acknowledged), you would make something good come out of it, including by sending an unequivocal message that humanity’s vitally important global institutions and the force of international law cannot be cynically manipulated for political purposes. Sadly, your Report does just the opposite: it compounds the original sin of your Mission’s establishment; it manipulates law and fact for political purposes; and it is likely to encourage the worst of human behavior and set back the quest for peace in the Middle East.
Already your Report has had enormous global repercussions, including some that you probably did not intend. Aside from the general anguish that your accusations of “war crimes” have caused in Israel and among the Jewish people, and the anger and hatred that it is has fueled among their enemies, specific identifiable consequences of your Report already include: the last-minute cancellation of NATO joint military exercises among Israel, Turkey, the United States, and Italy (and the consequent waste of millions of dollars and the downgrading of Israeli-Turkish relations); the degradation of negotiations between Israel and the Palestinian Authority; the weakening of the Palestinian Authority and strengthening of Hamas; travel restrictions on Israeli leaders; and further polarization of the HRC and frustration of the Obama administration’s stated policy of constructive engagement to try to develop the HRC into a useful and meaningful human-rights organization.
While your Reports works its way through the United Nations Security Council and International Criminal Court processes, I am sure many others will examine it closely and point out all its factual errors and legal flaws. I hope that this takes place in the context of a thorough investigation by Israel of the serious allegations that you have made. I expect that by the time the truth emerges regarding the cases you investigated (not to mention situations you chose to ignore), the credibility of your Report will be thoroughly undermined. Of course, that will be cold comfort for Israel and the Jewish people, as the libel you have perpetrated — unparalleled in both its heinous accusations and widespread publication — has already taken hold and the truth, when it emerges, will have no power against the venom and hate that has already been spread.
My Suggestions for You
It appears from your recent public remarks (at least in the Jewish press) that you may now realize that your Report overstates (to use a euphemistic term) the case against Israel. Your statements like “If this was a court of law, there would have been nothing proven” and “I wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved”; are welcome — because they are true — although they are somewhat perplexing because they are so inconsistent with the unqualified charges you made in your Report itself.
It is also clear that you are frustrated and “saddened” that the HRC is continuing in its usual one-sided anti-Israel mode and not even condemning the “Palestinian armed groups” for the violations your Report did establish. (You should not be surprised that Hamas is not named in the HRC resolution, for, as I have pointed out, your Report does not condemn them either, only their military wing.) It seems possible that you may even now be seeing the damage and injustice that is being caused, and will continue to be caused, by this document that bears your name and will, for better or worse, be your enduring legacy (even as I am sure you continue to believe that Israel’s leaders and soldiers should be held accountable if they overstepped legal bounds). And you may even be wondering whether there is anything you can do to mitigate the damage, injustice, and pain that your Report is causing.
My suggestion to you is that, in the interests of truth and justice, you should publish an article in which you do the following (much of this should not be difficult or controversial, as you have already done it in a more limited forum):
- Acknowledge that the type of scrutiny and standards you are applying against Israel have never been applied against any country in a comparable situation.
- Acknowledge that, based on the standards by which you are judging Israel, many other countries would also have been found guilty of war crimes (including in recent and ongoing conflicts, and most certainly the Allied powers that defeated Germany and Japan in World War II).
- Admit and explain that your determinations were made on the basis of one-sided evidence that, as you have already acknowledged, was tainted by duress.
- Acknowledge that there are many credible allegations of actions taken by Hamas and other Palestinian armed groups that, if true, would constitute war crimes but which you did not investigate.
- Acknowledge that your Report was unbalanced in terms of the allocation of focus on Israel, the incidents it chose to investigate, the selective historical context it included, and the language it used.
- Acknowledge that in a judicial proceeding a person who had demonstrated prejudgment of the issue at hand, as Christine Chinkin had, would not have been eligible to participate as a judge.
- Acknowledge that your taking into consideration of hearsay and anonymous reports is not consistent with standards that would apply in any judicial inquiry.
- Explain, as you have already said orally, that much of the evidence you considered (including hearsay and anonymous reports) would not be admissible in a court and that your conclusions do not reflect anything that has been proved.
- Acknowledge that a central pillar of your argument was that Hamas should be considered separately from its military wing, and if that distinction does not hold up in fact, many of your allegations of war crimes and other violations would cease to apply.
- Acknowledge that a central pillar of your argument is that Israel continues to “occupy” Gaza, and if that characterization does not hold up as a matter of law, many of your allegations would cease to apply.
- Given the aspersions your Report has cast on the Israeli judicial system, repeat and emphasize (and not only in Israeli and Jewish media) your statement that “Israel has a strong history of investigating allegations made against its own officials reaching to the highest levels of government . . . Israel has an internationally renowned and respected judiciary that should be the envy of many other countries in the region.”
- Acknowledge that Israel is not alone responsible for the casualties and damage resulting from Operation Cast Lead but that some substantial portion of the responsibility (parties may differ on the allocation) must go to Hamas and the other Palestinian armed groups that attacked Israel with missiles.
- Acknowledge that Israel has a right to act in self-defense and an obligation to defend its citizens and is not required or expected to suffer missiles being launched at it from Gaza or across any other border.
- Acknowledge that the refusal by Hamas and other entities and states to recognize and accept the State of Israel is inconsistent with the Charter of the United Nations and a major impediment to peace in the region.
- Demand (not just “recommend as a humanitarian gesture”) the release of Gilad Shalit, who is not just being held captive illegally but who was taken captive illegally.
In writing this letter to you, I am by no means suggesting that Israel is perfect or should be immune from criticism or even condemnation, when appropriate. It is entirely possible that individual Israeli soldiers or the IDF as a whole may have overstepped the bounds during Operation Cast Lead, including perhaps in some of the incidents that you have looked at. As noted in your Report, there are still many investigations, including some criminal cases, open in Israel regarding Operation Cast Lead, and if any credible allegations you have raised are not already being investigated, I sincerely hope they will be added. In any such cases, I hope and trust that the Israeli authorities will take all appropriate action so that the “purity of arms” on which the IDF has always rightfully prided itself will not be compromised.
But for all the reasons I have described above, your Report as written is an abominable travesty of justice. The damage that you and your Report have already done — to Israel, to the Jewish people, and to truth itself — can never be undone. But it can be mitigated if you are willing to admit the flaws in your Report loudly and clearly.
New York, New York
 For the most part, I reviewed the Advance Edited Version released on September 15, 2009. I understand from your speech to the HRC that the final version submitted on September 29, 2009, redressed certain inaccuracies. Although I doubt that any corrections made will significantly affect the substance of my letter, I will be happy to review the changes if a version marked to highlight them is made available. I believe the paragraph references I use apply to both the Advance Edited Version and the final version.
I am reminded of that famous statement by Prime Minister Golda Meir from 40 years ago: “When peace comes we will perhaps in time be able to forgive the Arabs for killing our sons, but it will be harder for us to forgive them for having forced us to kill their sons.” It is nothing less than tragic that forty years later this is still true, except that the word “sons” should be replaced in both places with the word “children”.
 My disappointment is especially acute because I have for months been assuring doubters that the investigation would likely be fair and balanced because of your involvement.
 Your interview with Christiane Amanpour of CNN on September 30. It is troubling that you decline to speak and write plainly and openly before all audiences about the lopsidedness of the authorizing resolution. You obviously recognize it and have acknowledged it (before an American audience on CNN and in the Israeli press), and yet you continue to hide the biased origin of your Mission, for example in the Introduction to the Report (1) and in your introductory remarks to the HRC rendering your final report.
 I will generally refer to this body as the HRC. I cannot bring myself to use the full name because the irony is too bitter and tragic given the critical importance of human rights in today’s world.
 See for example: Blocking the Truth of the Gaza War: How the Goldstone Commission Understated the Hamas Threat to Palestinian Civilians by Jonathan D. Halevi, Jerusalem Center for Public Affairs, Vol. 9, No. 10, 18 September 2009, available at www.jcpa.org.
 Of course you phrased it a little more delicately: “The Mission was faces with a certain reluctance by the persons it interviewed in Gaza to discuss the activities of the armed groups.” (35.) “Whatever the reasons for their reluctance, the Mission does not discount that the interviewees’ reluctance may have stemmed from a fear of reprisals.” (Report at 438.) Really? You think? See also paragraphs 453 and 1585.
 The emphasis of this frequently used phraseology and other italicized terms within quotes is added throughout.
 This is one example of the objection that your report evidences a political motivation behind what was supposed to be a “fact-finding” mission.
 It is not too late for that group of eminent jurists to call for an investigation into events in eastern Congo where there have been recent reports of over a thousand civilians murdered and nearly 900,000 displaced by Rwandan Hutu militiamen and Congolese forces, with allegations of widespread rape, looting and forced labor.
 One wonders what reason you might ascribe to the decision of Palestinian combatants to fight out of uniform. Perhaps they thought their uniform so unfashionable, they would not want to be caught dead in it.
 So for example you state (at 61): “The Israeli armed forces . . . have a very significant capacity for precision strikes by a variety of methods, including aerial and ground launches. Taking into account the ability to plan, the means to execute plans with the most developed technology available, and statements by the Israeli military that almost no errors occurred, the Mission finds that the incidents and patterns of events considered in the report are the result of deliberate planning and policy decisions.”
 Two examples of Israeli comments taken out of context: (1) when the Israeli leaders in question threatened a “disproportionate” response to rocket attacks it is likely they were not using that word in the legal sense (in relation to the military object to be achieved) but in the more colloquial sense of making Hamas pay a disproportionately high price for attacking Israel, which is entirely appropriate and does not translate into your “disproportionate destruction and violence against civilians were part of a deliberate policy”; and (2) several times you cite a comment from after the Gaza operation by Deputy Prime Minister Eli Yishai that, if attacked, Israel would “destroy 100 homes for every rocket fired” (64. 1201 and 1212) as evidence that Israeli leaders intended the “destruction of civilian objects . . . as a response to rocket attacks” but you fail to consider that in his earlier comments it was clear he was talking about homes of terrorists (see 1200). See also 389.
 For example, Hamas leader Fathi Hammad stated: “The Palestinian people has developed its [methods] of death seeking. For the Palestinian people, death became an industry, at which women excel and so do all people on this land: the elderly excel, the mujahideen excel and the children excel. Accordingly, [Hamas] created a human shield of women, children, the elderly and the mujahideen, against the Zionist bombing machine.” You responded: “Although the Mission finds this statement morally repugnant, it does not consider it to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack. The Government of Israel has not identified any such cases.” (476)
See also 421: “Often, when persons . . . are killed by actions of the Israeli armed forces , political and/or armed groups ‘adopt’ them as ‘martyrs’ placing their photographs on their websites and commending their contribution to resisting occupation. This does not mean that those persons killed were involved in resistance activities in any way.”
 See 47 in which, reacting to Israel’s acknowledgment of a tragic “operational error,” you expressed “significant doubt about the Israeli authorities’ account of the incident.”
 See, for example, 456.
 Much of the data and evidence you received and cited in your report came from a division of the Gaza authorities (that is, Hamas) called the “Central Commission for Documentation and Pursuit of Israeli War Criminals.” Maybe the name of this group suggests it may not be entirely objective.
 See the Halevi piece referred to above.
 The legal implications of the president’s consent are unclear, since the “very lopsided unfair resolution” was never actually amended or expanded.
 I suppose the Jewish people should be grateful that, for the most part, your Report leaves implicit its equation of Israel and the Nazis. The only time you draw an express parallel between Israel and Hitler’s Germany is when you compare Israel’s withdrawal from Gaza to allow the Palestinians to govern themselves with the German invasion of Denmark. (279)
 As an example, see again the Halevi piece referred to above.
 It is curious that you do not accuse Egypt, which shares a border with Gaza and which, if there is indeed a “blockade,” must by definition be a participant in it. It is also notable that you again do not allow yourself to be distracted by the underlying reasons for the “blockade” you decry. Although you frequently mention the closing of the border crossings as part of the “blockade,” you chose not to investigate the reasons for these closings, the fact that there were routinely attacked by Hamas and other terrorist groups, and the weapons smuggling that the border controls were designed to prevent (although you do note without any further commentary that weapons, including Iranian and Chinese rockets, are “thought to be smuggled into Gaza”).
 However, you dismiss these reports as unreliable because, you say, of the tendency of Palestinian groups to “adopt” dead Palestinians as “martyrs” after their death and “this does not mean that those persons killed were involved in resistance activities in any way.” (421) Indeed this reflects another troubling tendency in your Report, namely that you are quick to dismiss Palestinian statements against interest as unreliable “puffery,” but you frequently cite Israeli “puffery” as evidence of bad intent.
 See 206 to 208. For example you say: “The Committee on Economic, Social and Cultural Rights also has recognized that Israel’s application of a “Jewish nationality” distinct from Israeli citizenship institutionalizes discrimination that disadvantages all Palestinians. . . .”An interesting debate perhaps, but it is most interesting that you feel the need to question Israel’s right to exist as a Jewish state in the context of your fact-finding mission.
 Quoting with approval (at 279) the nonbinding (and extremely one-sided and dubious) decision of the International Court of Justice, in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
 A peculiar implication of this conclusion is that, if Israel is bound by the same obligations it was when it actually occupied Gaza, its proper course of action in light of its obligation to protect its own citizens from rocket attacks is presumably to recapture Gaza, impose order, and govern the Gazans in accordance with humanitarian law. I doubt very much that this is what you are proposing, but it does show how divorced your Report is from the political realities of the Gaza situation
 I am reminded of that insightful quote attributed to Mark Twain: “If a man invites you to take a walk with him, you can say that you are too tired. Should a man invite you to dinner, you can say that you have just eaten. If a man asks you to have a drink with him, you can say it is against your religion. However, if a man asks you to fight him, then you must oblige him.”
 There are, of course, many books you could read that would provide the more traditional history of the region. For a balanced (if not entirely up-to-date) summary of the recent developments in the Israeli-Palestinian conflict, I refer you to Part II, The Historical Setting, of the paper When You Have Not Decided Where to Go, No Wind Can Take You There: A Strategy to Achieve a Comprehensive Israeli-Arab Peace by Yair Hirschfeld Ph.D., an Israeli academic and one of the architects of the Oslo accords, published by The James A. Baker III Institute for Public Policy at Rice University in 2007 and available online at http://www.bakerinstitute.org/personnel/fellows-scholars/yhirschfeld .
 To mention just one example, you describe the second intifada unleashed by Yasir Arafat when he did not get everything he wanted at Camp David as a “second popular uprising [that] erupted after. . . . Ariel Sharon conducted a controversial visit to the Temple Mount/al-Haram-al-Sharif.” (180) I find it telling that you cannot even bring yourself to say that Jerusalem is the site of the Jewish Temple. In footnote 10, you state: “The Temple Mount/al-Haram-al-Sharif (the Noble Sanctuary) is the location of al-Aqsa and the Dome of the Rock mosques, the third most sacred place in Islam. It is also believed to be the location of the two ancient Jewish temples.”
 For example, see the following quotes from the Charter of Hamas: “Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it.” (The Martyr, Imam Hassan al-Banna, of blessed memory). . . . “The Prophet, Allah bless him and grant him salvation, has said: ‘The Day of Judgement will not come about until Muslims fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Muslims, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, would not do that because it is one of the trees of the Jews.’ (related by al-Bukhari and Muslim).”
 See 206 to 208 and the discussion above at footnote 24.
 “The Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population. . . .” (1690; see also 5117, 1162 and 1256)
 “The Mission finds that the rocket and mortars attacks, launched by Palestinian armed groups in Gaza, have caused terror in the affected communities of southern Israel and in Israel as a whole.” (1724)
 I understand, including from footnotes in your Report, that Israel believes the number is much higher — close to 12,000. You do not explain how you made your finding that the lower 8,000 number is more credible.
 “I don’t think there’s ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.” British Colonel (retired) Richard Kemp. I have previously referred you to Col. Kemp’s work on the challenges faced by countries trying to fight within the provisions of international law against an enemy that deliberately and consistently flouts international law, and urged you to reach out to him but I gather you chose not to do so.
 See quote at 475.
 In your Jerusalem Post article of October 19, you state that the Mission “called for his release.” Not to be too pedantic, but this provides a good example of how things get distorted in the press: the Report says “recommend”; you say “called”; the Press says “demanded.”
 See for example John Bolton, “Israel, the U.S. and the Goldstone Report,” Wall Street Journal, October 19, 2009.
 See the Jewish Daily Forward, issue of October 23, 2009, available at http://www.forward.com/articles/116771.
 See for example “U.N. Council Backs Gaza War-crimes Report,” the Washington Post, October 17, 2009, available at http://www.washingtontimes.com/news/2009/oct/17/un-council-backs-gaza-war-crimes-report.
An Open Letter to Richard Goldstone
Must-Reads from Magazine
t can be said that the Book of Samuel launched the American Revolution. Though antagonistic to traditional faith, Thomas Paine understood that it was not Montesquieu, or Locke, who was inscribed on the hearts of his fellow Americans. Paine’s pamphlet Common Sense is a biblical argument against British monarchy, drawing largely on the text of Samuel.
Today, of course, universal biblical literacy no longer exists in America, and sophisticated arguments from Scripture are all too rare. It is therefore all the more distressing when public intellectuals, academics, or religious leaders engage in clumsy acts of exegesis and political argumentation by comparing characters in the Book of Samuel to modern political leaders. The most common victim of this tendency has been the central character in the Book of Samuel: King David.
Most recently, this tendency was made manifest in the writings of Dennis Prager. In a recent defense of his own praise of President Trump, Prager wrote that “as a religious Jew, I learned from the Bible that God himself chose morally compromised individuals to accomplish some greater good. Think of King David, who had a man killed in order to cover up the adultery he committed with the man’s wife.” Prager similarly argued that those who refuse to vote for a politician whose positions are correct but whose personal life is immoral “must think God was pretty flawed in voting for King David.”
Prager’s invocation of King David was presaged on the left two decades ago. The records of the Clinton Presidential Library reveal that at the height of the Lewinsky scandal, an email from Dartmouth professor Susannah Heschel made its way into the inbox of an administration policy adviser with a similar comparison: “From the perspective of Jewish history, we have to ask how Jews can condemn President Clinton’s behavior as immoral, when we exalt King David? King David had Batsheva’s husband, Uriah, murdered. While David was condemned and punished, he was never thrown off the throne of Israel. On the contrary, he is exalted in our Jewish memory as the unifier of Israel.”
One can make the case for supporting politicians who have significant moral flaws. Indeed, America’s political system is founded on an awareness of the profound tendency to sinfulness not only of its citizens but also of its statesmen. “If men were angels, no government would be necessary,” James Madison informs us in the Federalist. At the same time, anyone who compares King David to the flawed leaders of our own age reveals a profound misunderstanding of the essential nature of David’s greatness. David was not chosen by God despite his moral failings; rather, David’s failings are the lens that reveal his true greatness. It is in the wake of his sins that David emerges as the paradigmatic penitent, whose quest for atonement is utterly unlike that of any other character in the Bible, and perhaps in the history of the world.
While the precise nature of David’s sins is debated in the Talmud, there is no question that they are profound. Yet it is in comparing David to other faltering figures—in the Bible or today—that the comparison falls flat. This point is stressed by the very Jewish tradition in whose name Prager claimed to speak.
It is the rabbis who note that David’s predecessor, Saul, lost the kingship when he failed to fulfill God’s command to destroy the egregiously evil nation of Amalek, whereas David commits more severe sins and yet remains king. The answer, the rabbis suggest, lies not in the sin itself but in the response. Saul, when confronted by the prophet Samuel, offers obfuscations and defensiveness. David, meanwhile, is similarly confronted by the prophet Nathan: “Thou hast killed Uriah the Hittite with the sword, and hast taken his wife to be thy wife, and hast slain him with the sword of the children of Ammon.” David’s immediate response is clear and complete contrition: “I have sinned against the Lord.” David’s penitence, Jewish tradition suggests, sets him apart from Saul. Soon after, David gave voice to what was in his heart at the moment, and gave the world one of the most stirring of the Psalms:
Have mercy upon me, O God, according to thy lovingkindness: according unto the multitude of thy tender mercies blot out my transgressions.
Wash me thoroughly from mine iniquity, and cleanse me from my sin. For I acknowledge my transgressions: and my sin is ever before me.
. . . Deliver me from bloodguiltiness, O God, thou God of my salvation: and my tongue shall sing aloud of thy righteousness.
O Lord, open thou my lips; and my mouth shall shew forth thy praise.
For thou desirest not sacrifice; else would I give it: thou delightest not in burnt offering.
The sacrifices of God are a broken spirit: a broken and a contrite heart, O God, thou wilt not despise.
The tendency to link David to our current age lies in the fact that we know more about David than any other biblical figure. The author Thomas Cahill has noted that in a certain literary sense, David is the only biblical figure that is like us at all. Prior to the humanist autobiographies of the Renaissance, he notes, “we can count only a few isolated instances of this use of ‘I’ to mean the interior self. But David’s psalms are full of I’s.” In David’s Psalms, Cahill writes, we “find a unique early roadmap to the inner spirit—previously mute—of ancient humanity.”
At the same time, a study of the Book of Samuel and of the Psalms reveals how utterly incomparable David is to anyone alive today. Haym Soloveitchik has noted that even the most observant of Jews today fail to feel a constant intimacy with God that the simplest Jew of the premodern age might have felt, that “while there are always those whose spirituality is one apart from that of their time, nevertheless I think it safe to say that the perception of God as a daily, natural force is no longer present to a significant degree in any sector of modern Jewry, even the most religious.” Yet for David, such intimacy with the divine was central to his existence, and the Book of Samuel and the Psalms are an eternal testament to this fact. This is why simple comparisons between David and ourselves, as tempting as they are, must be resisted. David Wolpe, in his book about David, attempts to make the case as to why King David’s life speaks to us today: “So versatile and enduring is David in our culture that rare is the week that passes without some public allusion to his life…We need to understand David better because we use his life to comprehend our own.”
The truth may be the opposite. We need to understand David better because we can use his life to comprehend what we are missing, and how utterly unlike our lives are to his own. For even the most religious among us have lost the profound faith and intimacy with God that David had. It is therefore incorrect to assume that because of David’s flaws it would have been, as Amos Oz has written, “fitting for him to reign in Tel Aviv.” The modern State of Israel was blessed with brilliant leaders, but to which of its modern warriors or statesmen should David be compared? To Ben Gurion, who stripped any explicit invocation of the Divine from Israel’s Declaration of Independence? To Moshe Dayan, who oversaw the reconquest of Jerusalem, and then immediately handed back the Temple Mount, the locus of King David’s dreams and desires, to the administration of the enemies of Israel? David’s complex humanity inspires comparison to modern figures, but his faith, contrition, and repentance—which lie at the heart of his story and success—defy any such engagement.
And so, to those who seek comparisons to modern leaders from the Bible, the best rule may be: Leave King David out of it.
Three attacks in Britain highlight the West’s inability to see the threat clearly
This lack of seriousness manifests itself in several ways. It’s perhaps most obvious in the failure to reform Britain’s chaotic immigration and dysfunctional asylum systems. But it’s also abundantly clear from the grotesque underfunding and under-resourcing of domestic intelligence. In MI5, Britain has an internal security service that is simply too small to do its job effectively, even if it were not handicapped by an institutional culture that can seem willfully blind to the ideological roots of the current terrorism problem.
In 2009, Jonathan Evans, then head of MI5, confessed at a parliamentary hearing about the London bus and subway attacks of 2005 that his organization only had sufficient resources to “hit the crocodiles close to the boat.” It was an extraordinary metaphor to use, not least because of the impression of relative impotence that it conveys. MI5 had by then doubled in size since 2001, but it still boasted a staff of only 3,500. Today it’s said to employ between 4,000 and 5,000, an astonishingly, even laughably, small number given a UK population of 65 million and the scale of the security challenges Britain now faces. (To be fair, the major British police forces all have intelligence units devoted to terrorism, and the UK government’s overall counterterrorism strategy involves a great many people, including social workers and schoolteachers.)
You can also see that unseriousness at work in the abject failure to coerce Britain’s often remarkably sedentary police officers out of their cars and stations and back onto the streets. Most of Britain’s big-city police forces have adopted a reactive model of policing (consciously rejecting both the New York Compstat model and British “bobby on the beat” traditions) that cripples intelligence-gathering and frustrates good community relations.
If that weren’t bad enough, Britain’s judiciary is led by jurists who came of age in the 1960s, and who have been inclined since 2001 to treat terrorism as an ordinary criminal problem being exploited by malign officials and politicians to make assaults on individual rights and to take part in “illegal” foreign wars. It has long been almost impossible to extradite ISIS or al-Qaeda–linked Islamists from the UK. This is partly because today’s English judges believe that few if any foreign countries—apart from perhaps Sweden and Norway—are likely to give terrorist suspects a fair trial, or able to guarantee that such suspects will be spared torture and abuse.
We have a progressive metropolitan media elite whose primary, reflexive response to every terrorist attack, even before the blood on the pavement is dry, is to express worry about an imminent violent anti-Muslim “backlash” on the part of a presumptively bigoted and ignorant indigenous working class. Never mind that no such “backlash” has yet occurred, not even when the young off-duty soldier Lee Rigby was hacked to death in broad daylight on a South London street in 2013.
Another sign of this lack of seriousness is the choice by successive British governments to deal with the problem of internal terrorism with marketing and “branding.” You can see this in the catchy consultant-created acronyms and pseudo-strategies that are deployed in place of considered thought and action. After every atrocity, the prime minister calls a meeting of the COBRA unit—an acronym that merely stands for Cabinet Office Briefing Room A but sounds like a secret organization of government superheroes. The government’s counterterrorism strategy is called CONTEST, which has four “work streams”: “Prevent,” “Pursue,” “Protect,” and “Prepare.”
Perhaps the ultimate sign of unseriousness is the fact that police, politicians, and government officials have all displayed more fear of being seen as “Islamophobic” than of any carnage that actual terror attacks might cause. Few are aware that this short-term, cowardly, and trivial tendency may ultimately foment genuine, dangerous popular Islamophobia, especially if attacks continue.R
ecently, three murderous Islamist terror attacks in the UK took place in less than a month. The first and third were relatively primitive improvised attacks using vehicles and/or knives. The second was a suicide bombing that probably required relatively sophisticated planning, technological know-how, and the assistance of a terrorist infrastructure. As they were the first such attacks in the UK, the vehicle and knife killings came as a particular shock to the British press, public, and political class, despite the fact that non-explosive and non-firearm terror attacks have become common in Europe and are almost routine in Israel.
The success of all three plots indicates troubling problems in British law-enforcement practice and culture, quite apart from any other failings on the parts of the state in charge of intelligence, border control, and the prevention of radicalization. At the time of writing, the British media have been full of encomia to police courage and skill, not least because it took “only” eight minutes for an armed Metropolitan Police team to respond to and confront the bloody mayhem being wrought by the three Islamist terrorists (who had ploughed their rented van into people on London Bridge before jumping out to attack passersby with knives). But the difficult truth is that all three attacks would be much harder to pull off in Manhattan, not just because all NYPD cops are armed, but also because there are always police officers visibly on patrol at the New York equivalents of London’s Borough Market on a Saturday night. By contrast, London’s Metropolitan police is a largely vehicle-borne, reactive force; rather than use a physical presence to deter crime and terrorism, it chooses to monitor closed-circuit street cameras and social-media postings.
Since the attacks in London and Manchester, we have learned that several of the perpetrators were “known” to the police and security agencies that are tasked with monitoring potential terror threats. That these individuals were nevertheless able to carry out their atrocities is evidence that the monitoring regime is insufficient.
It also seems clear that there were failures on the part of those institutions that come under the leadership of the Home Office and are supposed to be in charge of the UK’s border, migration, and asylum systems. Journalists and think tanks like Policy Exchange and Migration Watch have for years pointed out that these systems are “unfit for purpose,” but successive governments have done little to take responsible control of Britain’s borders. When she was home secretary, Prime Minister Theresa May did little more than jazz up the name, logo, and uniforms of what is now called the “Border Force,” and she notably failed to put in place long-promised passport checks for people flying out of the country. This dereliction means that it is impossible for the British authorities to know who has overstayed a visa or whether individuals who have been denied asylum have actually left the country.
It seems astonishing that Youssef Zaghba, one of the three London Bridge attackers, was allowed back into the country. The Moroccan-born Italian citizen (his mother is Italian) had been arrested by Italian police in Bologna, apparently on his way to Syria via Istanbul to join ISIS. When questioned by the Italians about the ISIS decapitation videos on his mobile phone, he declared that he was “going to be a terrorist.” The Italians lacked sufficient evidence to charge him with a crime but put him under 24-hour surveillance, and when he traveled to London, they passed on information about him to MI5. Nevertheless, he was not stopped or questioned on arrival and had not become one of the 3,000 official terrorism “subjects of interest” for MI5 or the police when he carried out his attack. One reason Zaghba was not questioned on arrival may have been that he used one of the new self-service passport machines installed in UK airports in place of human staff after May’s cuts to the border force. Apparently, the machines are not yet linked to any government watch lists, thanks to the general chaos and ineptitude of the Home Office’s efforts to use information technology.
The presence in the country of Zaghba’s accomplice Rachid Redouane is also an indictment of the incompetence and disorganization of the UK’s border and migration authorities. He had been refused asylum in 2009, but as is so often the case, Britain’s Home Office never got around to removing him. Three years later, he married a British woman and was therefore able to stay in the UK.
But it is the failure of the authorities to monitor ringleader Khuram Butt that is the most baffling. He was a known and open associate of Anjem Choudary, Britain’s most notorious terrorist supporter, ideologue, and recruiter (he was finally imprisoned in 2016 after 15 years of campaigning on behalf of al-Qaeda and ISIS). Butt even appeared in a 2016 TV documentary about ISIS supporters called The Jihadist Next Door. In the same year, he assaulted a moderate imam at a public festival, after calling him a “murtad” or apostate. The imam reported the incident to the police—who took six months to track him down and then let him off with a caution. It is not clear if Butt was one of the 3,000 “subjects of interest” or the additional 20,000 former subjects of interest who continue to be the subject of limited monitoring. If he was not, it raises the question of what a person has to do to get British security services to take him seriously as a terrorist threat; if he was in fact on the list of “subjects of interest,” one has to wonder if being so designated is any barrier at all to carrying out terrorist atrocities. It’s worth remembering, as few do here in the UK, that terrorists who carried out previous attacks were also known to the police and security services and nevertheless enjoyed sufficient liberty to go at it again.B
ut the most important reason for the British state’s ineffectiveness in monitoring terror threats, which May addressed immediately after the London Bridge attack, is a deeply rooted institutional refusal to deal with or accept the key role played by Islamist ideology. For more than 15 years, the security services and police have chosen to take note only of people and bodies that explicitly espouse terrorist violence or have contacts with known terrorist groups. The fact that a person, school, imam, or mosque endorses the establishment of a caliphate, the stoning of adulterers, or the murder of apostates has not been considered a reason to monitor them.
This seems to be why Salman Abedi, the Manchester Arena suicide bomber, was not being watched by the authorities as a terror risk, even though he had punched a girl in the face for wearing a short skirt while at university, had attended the Muslim Brotherhood-controlled Didsbury Mosque, was the son of a Libyan man whose militia is banned in the UK, had himself fought against the Qaddafi regime in Libya, had adopted the Islamist clothing style (trousers worn above the ankle, beard but no moustache), was part of a druggy gang subculture that often feeds individuals into Islamist terrorism, and had been banned from a mosque after confronting an imam who had criticized ISIS.
It was telling that the day after the Manchester Arena suicide-bomb attack, you could hear security officials informing radio and TV audiences of the BBC’s flagship morning-radio news show that it’s almost impossible to predict and stop such attacks because the perpetrators “don’t care who they kill.” They just want to kill as many people as possible, he said.
Surely, anyone with even a basic familiarity with Islamist terror attacks over the last 15 or so years and a nodding acquaintance with Islamist ideology could see that the terrorist hadn’t just chosen the Ariana Grande concert in Manchester Arena because a lot of random people would be crowded into a conveniently small area. Since the Bali bombings of 2002, nightclubs, discotheques, and pop concerts attended by shameless unveiled women and girls have been routinely targeted by fundamentalist terrorists, including in Britain. Among the worrying things about the opinion offered on the radio show was that it suggests that even in the wake of the horrific Bataclan attack in Paris during a November 2015 concert, British authorities may not have been keeping an appropriately protective eye on music venues and other places where our young people hang out in their decadent Western way. Such dereliction would make perfect sense given the resistance on the part of the British security establishment to examining, confronting, or extrapolating from Islamist ideology.
The same phenomenon may explain why authorities did not follow up on community complaints about Abedi. All too often when people living in Britain’s many and diverse Muslim communities want to report suspicious behavior, they have to do so through offices and organizations set up and paid for by the authorities as part of the overall “Prevent” strategy. Although criticized by the left as “Islamophobic” and inherently stigmatizing, Prevent has often brought the government into cooperative relationships with organizations even further to the Islamic right than the Muslim Brotherhood. This means that if you are a relatively secular Libyan émigré who wants to report an Abedi and you go to your local police station, you are likely to find yourself speaking to a bearded Islamist.
From its outset in 2003, the Prevent strategy was flawed. Its practitioners, in their zeal to find and fund key allies in “the Muslim community” (as if there were just one), routinely made alliances with self-appointed community leaders who represented the most extreme and intolerant tendencies in British Islam. Both the Home Office and MI5 seemed to believe that only radical Muslims were “authentic” and would therefore be able to influence young potential terrorists. Moderate, modern, liberal Muslims who are arguably more representative of British Islam as a whole (not to mention sundry Shiites, Sufis, Ahmmadis, and Ismailis) have too often found it hard to get a hearing.
Sunni organizations that openly supported suicide-bomb attacks in Israel and India and that justified attacks on British troops in Iraq and Afghanistan nevertheless received government subsidies as part of Prevent. The hope was that in return, they would alert the authorities if they knew of individuals planning attacks in the UK itself.
It was a gamble reminiscent of British colonial practice in India’s northwest frontier and elsewhere. Not only were there financial inducements in return for grudging cooperation; the British state offered other, symbolically powerful concessions. These included turning a blind eye to certain crimes and antisocial practices such as female genital mutilation (there have been no successful prosecutions relating to the practice, though thousands of cases are reported every year), forced marriage, child marriage, polygamy, the mass removal of girls from school soon after they reach puberty, and the epidemic of racially and religiously motivated “grooming” rapes in cities like Rotherham. (At the same time, foreign jihadists—including men wanted for crimes in Algeria and France—were allowed to remain in the UK as long as their plots did not include British targets.)
This approach, simultaneously cynical and naive, was never as successful as its proponents hoped. Again and again, Muslim chaplains who were approved to work in prisons and other institutions have sometimes turned out to be Islamist extremists whose words have inspired inmates to join terrorist organizations.
Much to his credit, former Prime Minister David Cameron fought hard to change this approach, even though it meant difficult confrontations with his home secretary (Theresa May), as well as police and the intelligence agencies. However, Cameron’s efforts had little effect on the permanent personnel carrying out the Prevent strategy, and cooperation with Islamist but currently nonviolent organizations remains the default setting within the institutions on which the United Kingdom depends for security.
The failure to understand the role of ideology is one of imagination as well as education. Very few of those who make government policy or write about home-grown terrorism seem able to escape the limitations of what used to be called “bourgeois” experience. They assume that anyone willing to become an Islamist terrorist must perforce be materially deprived, or traumatized by the experience of prejudice, or provoked to murderous fury by oppression abroad. They have no sense of the emotional and psychic benefits of joining a secret terror outfit: the excitement and glamor of becoming a kind of Islamic James Bond, bravely defying the forces of an entire modern state. They don’t get how satisfying or empowering the vengeful misogyny of ISIS-style fundamentalism might seem for geeky, frustrated young men. Nor can they appreciate the appeal to the adolescent mind of apocalyptic fantasies of power and sacrifice (mainstream British society does not have much room for warrior dreams, given that its tone is set by liberal pacifists). Finally, they have no sense of why the discipline and self-discipline of fundamentalist Islam might appeal so strongly to incarcerated lumpen youth who have never experienced boundaries or real belonging. Their understanding is an understanding only of themselves, not of the people who want to kill them.
Review of 'White Working Class' By Joan C. Williams
Williams is a prominent feminist legal scholar with degrees from Yale, MIT, and Harvard. Unbending Gender, her best-known book, is the sort of tract you’d expect to find at an intersectionality conference or a Portlandia bookstore. This is why her insightful, empathic book comes as such a surprise.
Books and essays on the topic have accumulated into a highly visible genre since Donald Trump came on the American political scene; J.D. Vance’s Hillbilly Elegy planted itself at the top of bestseller lists almost a year ago and still isn’t budging. As with Vance, Williams’s interest in the topic is personal. She fell “madly in love with” and eventually married a Harvard Law School graduate who had grown up in an Italian neighborhood in pre-gentrification Brook-lyn. Williams, on the other hand, is a “silver-spoon girl.” Her father’s family was moneyed, and her maternal grandfather was a prominent Reform rabbi.
The author’s affection for her “class-migrant” spouse and respect for his family’s hardships—“My father-in-law grew up on blood soup,” she announces in her opening sentence—adds considerable warmth to what is at bottom a political pamphlet. Williams believes that elite condescension and “cluelessness” played a big role in Trump’s unexpected and dreaded victory. Enlightening her fellow elites is essential to the task of returning Trump voters to the progressive fold where, she is sure, they rightfully belong.
Liberals were not always so dense about the working class, Williams observes. WPA murals and movies like On the Waterfront showed genuine fellow feeling for the proletariat. In the 1970s, however, the liberal mood changed. Educated boomers shifted their attention to “issues of peace, equal rights, and environmentalism.” Instead of feeling the pain of Arthur Miller and John Steinbeck characters, they began sneering at the less enlightened. These days, she notes, elite sympathies are limited to the poor, people of color (POC), and the LGBTQ population. Despite clear evidence of suffering—stagnant wages, disappearing manufacturing jobs, declining health and well-being—the working class gets only fly-over snobbery at best and, more often, outright loathing.
Williams divides her chapters into a series of explainers to questions she has heard from her clueless friends and colleagues: “Why Does the Working Class Resent the Poor?” “Why Does the Working Class Resent Professionals but Admire the Rich?” “Why Doesn’t the Working Class Just Move to Where the Jobs Are?” “Is the Working Class Just Racist?” She weaves her answers into a compelling picture of a way of life and worldview foreign to her targeted readers. Working-class Americans have had to struggle for whatever stability and comfort they have, she explains. Clocking in for midnight shifts year after year, enduring capricious bosses, plant closures, and layoffs, they’re reliant on tag-team parenting and stressed-out relatives for child care. The campus go-to word “privileged” seems exactly wrong.
Proud of their own self-sufficiency and success, however modest, they don’t begrudge the self-made rich. It’s snooty professionals and the dysfunctional poor who get their goat. From their vantage point, subsidizing the day care for a welfare mother when they themselves struggle to manage care on their own dime mocks both their hard work and their beliefs. And since, unlike most professors, they shop in the same stores as the dependent poor, they’ve seen that some of them game the system. Of course that stings.
White Working Class is especially good at evoking the alternate economic and mental universe experienced by Professional and Managerial Elites, or “PMEs.” PMEs see their non-judgment of the poor, especially those who are “POC,” as a mark of their mature understanding that we live in an unjust, racist system whose victims require compassion regardless of whether they have committed any crime. At any rate, their passions lie elsewhere. They define themselves through their jobs and professional achievements, hence their obsession with glass ceilings.
Williams tells the story of her husband’s faux pas at a high-school reunion. Forgetting his roots for a moment, the Ivy League–educated lawyer asked one of his Brooklyn classmates a question that is the go-to opener in elite social settings: “What do you do?” Angered by what must have seemed like deliberate humiliation by this prodigal son, the man hissed: “I sell toilets.”
Instead of stability and backyard barbecues with family and long-time neighbors and maybe the occasional Olive Garden celebration, PMEs are enamored of novelty: new foods, new restaurants, new friends, new experiences. The working class chooses to spend its leisure in comfortable familiarity; for the elite, social life is a lot like networking. Members of the professional class may view themselves as sophisticated or cosmopolitan, but, Williams shows, to the blue-collar worker their glad-handing is closer to phony social climbing and their abstract, knowledge-economy jobs more like self-important pencil-pushing.
White Working Class has a number of proposals for creating the progressive future Williams would like to see. She wants to get rid of college-for-all dogma and improve training for middle-skill jobs. She envisions a working-class coalition of all races and ethnicities bolstered by civics education with a “distinctly celebratory view of American institutions.” In a saner political environment, some of this would make sense; indeed, she echoes some of Marco Rubio’s 2016 campaign themes. It’s little wonder White Working Class has already gotten the stink eye from liberal reviewers for its purported sympathies for racists.
Alas, impressive as Williams’s insights are, they do not always allow her to transcend her own class loyalties. Unsurprisingly, her own PME biases mostly come to light in her chapters on race and gender. She reduces immigration concerns to “fear of brown people,” even as she notes elsewhere that a quarter of Latinos also favor a wall at the southern border. This contrasts startlingly with her succinct observation that “if you don’t want to drive working-class whites to be attracted to the likes of Limbaugh, stop insulting them.” In one particularly obtuse moment, she asserts: “Because I study social inequality, I know that even Malia and Sasha Obama will be disadvantaged by race, advantaged as they are by class.” She relies on dubious gender theories to explain why the majority of white women voted for Trump rather than for his unfairly maligned opponent. That Hillary Clinton epitomized every elite quality Williams has just spent more than a hundred pages explicating escapes her notice. Williams’s own reflexive retreat into identity politics is itself emblematic of our toxic divisions, but it does not invalidate the power of this astute book.
When music could not transcend evil
he story of European classical music under the Third Reich is one of the most squalid chapters in the annals of Western culture, a chronicle of collective complaisance that all but beggars belief. Without exception, all of the well-known musicians who left Germany and Austria in protest when Hitler came to power in 1933 were either Jewish or, like the violinist Adolf Busch, Rudolf Serkin’s father-in-law, had close family ties to Jews. Moreover, most of the small number of non-Jewish musicians who emigrated later on, such as Paul Hindemith and Lotte Lehmann, are now known to have done so not out of principle but because they were unable to make satisfactory accommodations with the Nazis. Everyone else—including Karl Böhm, Wilhelm Furtwängler, Walter Gieseking, Herbert von Karajan, and Richard Strauss—stayed behind and served the Reich.
The Berlin and Vienna Philharmonics, then as now Europe’s two greatest orchestras, were just as willing to do business with Hitler and his henchmen, firing their Jewish members and ceasing to perform the music of Jewish composers. Even after the war, the Vienna Philharmonic was notorious for being the most anti-Semitic orchestra in Europe, and it was well known in the music business (though never publicly discussed) that Helmut Wobisch, the orchestra’s principal trumpeter and its executive director from 1953 to 1968, had been both a member of the SS and a Gestapo spy.
The management of the Berlin Philharmonic made no attempt to cover up the orchestra’s close relationship with the Third Reich, no doubt because the Nazi ties of Karajan, who was its music director from 1956 until shortly before his death in 1989, were a matter of public record. Yet it was not until 2007 that a full-length study of its wartime activities, Misha Aster’s The Reich’s Orchestra: The Berlin Philharmonic 1933–1945, was finally published. As for the Vienna Philharmonic, its managers long sought to quash all discussion of the orchestra’s Nazi past, steadfastly refusing to open its institutional archives to scholars until 2008, when Fritz Trümpi, an Austrian scholar, was given access to its records. Five years later, the Viennese, belatedly following the precedent of the Berlin Philharmonic, added a lengthy section to their website called “The Vienna Philharmonic Under National Socialism (1938–1945),” in which the damning findings of Trümpi and two other independent scholars were made available to the public.
Now Trümpi has published The Political Orchestra: The Vienna and Berlin Philharmonics During the Third Reich, in which he tells how they came to terms with Nazism, supplying pre- and postwar historical context for their transgressions.1 Written in a stiff mixture of academic jargon and translatorese, The Political Orchestra is ungratifying to read. Even so, the tale that it tells is both compelling and disturbing, especially to anyone who clings to the belief that high art is ennobling to the spirit.U
nlike the Vienna Philharmonic, which has always doubled as the pit orchestra for the Vienna State Opera, the Berlin Philharmonic started life in 1882 as a fully independent, self-governing entity. Initially unsubsidized by the state, it kept itself afloat by playing a grueling schedule of performances, including “popular” non-subscription concerts for which modest ticket prices were levied. In addition, the orchestra made records and toured internationally at a time when neither was common.
These activities made it possible for the Berlin Philharmonic to develop into an internationally renowned ensemble whose fabled collective virtuosity was widely seen as a symbol of German musical distinction. Furtwängler, the orchestra’s principal conductor, declared in 1932 that the German music in which it specialized was “one of the very few things that actually contribute to elevating [German] prestige.” Hence, he explained, the need for state subsidy, which he saw as “a matter of [national] prestige, that is, to some extent a requirement of national prudence.” By then, though, the orchestra was already heavily subsidized by the city of Berlin, thus paving the way for its takeover by the Nazis.
The Vienna Philharmonic, by contrast, had always been subsidized. Founded in 1842 when the orchestra of what was then the Vienna Court Opera decided to give symphonic concerts on its own, it performed the Austro-German classics for an elite cadre of longtime subscribers. By restricting membership to local players and their pupils, the orchestra cultivated what Furtwängler, who spent as much time conducting in Vienna as in Berlin, described as a “homogeneous and distinct tone quality.” At once dark and sweet, it was as instantly identifiable—and as characteristically Viennese—as the strong, spicy bouquet of a Gewürztraminer wine.
Unlike the Berlin Philharmonic, which played for whoever would pay the tab and programmed new music as a matter of policy, the Vienna Philharmonic chose not to diversify either its haute-bourgeois audience or its conservative repertoire. Instead, it played Beethoven, Brahms, Haydn, Mozart, and Schubert (and, later, Bruckner and Richard Strauss) in Vienna for the Viennese. Starting in the ’20s, the orchestra’s recordings consolidated its reputation as one of the world’s foremost instrumental ensembles, but its internal culture remained proudly insular.
What the two orchestras had in common was a nationalistic ethos, a belief in the superiority of Austro-German musical culture that approached triumphalism. One of the darkest manifestations of this ethos was their shared reluctance to hire Jews. The Berlin Philharmonic employed only four Jewish players in 1933, while the Vienna Philharmonic contained only 11 Jews at the time of the Anschluss, none of whom was hired after 1920. To be sure, such popular Jewish conductors as Otto Klemperer and Bruno Walter continued to work in Vienna for as long as they could. Two months before the Anschluss, Walter led and recorded a performance of the Ninth Symphony of Gustav Mahler, his musical mentor and fellow Jew, who from 1897 to 1907 had been the director of the Vienna Court Opera and one of the Philharmonic’s most admired conductors. But many members of both orchestras were open supporters of fascism, and not a few were anti-Semites who ardently backed Hitler. By 1942, 62 of the 123 active members of the Vienna Philharmonic were Nazi party members.
The admiration that Austro-German classical musicians had for Hitler is not entirely surprising since he was a well-informed music lover who declared in 1938 that “Germany has become the guardian of European culture and civilization.” He made the support of German art, music very much included, a key part of his political program. Accordingly, the Berlin Philharmonic was placed under the direct supervision of Joseph Goebbels, who ensured the cooperation of its members by repeatedly raising their salaries, exempting them from military service, and guaranteeing their old-age pensions. But there had never been any serious question of protest, any more than there would be among the members of the Vienna Philharmonic when the Nazis gobbled up Austria. Save for the Jews and one or two non-Jewish players who were fired for reasons of internal politics, the musicians went along unhesitatingly with Hitler’s desires.
With what did they go along? Above all, they agreed to the scrubbing of Jewish music from their programs and the dismissal of their Jewish colleagues. Some Jewish players managed to escape with their lives, but seven of the Vienna Philharmonic’s 11 Jews were either murdered by the Nazis or died as a direct result of official persecution. In addition, both orchestras performed regularly at official government functions and made tours and other public appearances for propaganda purposes, and both were treated as gems in the diadem of Nazi culture.
As for Furtwängler, the most prominent of the Austro-German orchestral conductors who served the Reich, his relationship to Nazism continues to be debated to this day. He had initially resisted the firing of the Berlin Philharmonic’s Jewish members and protected them for as long as he could. But he was also a committed (if woolly-minded) nationalist who believed that German music had “a different meaning for us Germans than for other nations” and notoriously declared in an open letter to Goebbels that “we all welcome with great joy and gratitude . . . the restoration of our national honor.” Thereafter he cooperated with the Nazis, by all accounts uncomfortably but—it must be said—willingly. A monster of egotism, he saw himself as the greatest living exponent of German music and believed it to be his duty to stay behind and serve a cause higher than what he took to be mere party politics. “Human beings are free wherever Wagner and Beethoven are played, and if they are not free at first, they are freed while listening to these works,” he naively assured a horrified Arturo Toscanini in 1937. “Music transports them to regions where the Gestapo can do them no harm.”O
nce the war was over, the U.S. occupation forces decided to enlist the Berlin Philharmonic in the service of a democratic, anti-Soviet Germany. Furtwängler and Herbert von Karajan, who succeeded him as principal conductor, were officially “de-Nazified” and their orchestra allowed to function largely undisturbed, though six Nazi Party members were fired. The Vienna Philharmonic received similarly privileged treatment.
Needless to say, there was more to this decision than Cold War politics. No one questioned the unique artistic stature of either orchestra. Moreover, the Vienna Philharmonic, precisely because of its insularity, was now seen as a living museum piece, a priceless repository of 19th-century musical tradition. Still, many musicians and listeners, Jews above all, looked askance at both orchestras for years to come, believing them to be tainted by Nazism.
Indeed they were, so much so that they treated many of their surviving Jewish ex-members in a way that can only be described as vicious. In the most blatant individual case, the violinist Szymon Goldberg, who had served as the Berlin Philharmonic’s concertmaster under Furtwängler, was not allowed to reassume his post in 1945 and was subsequently denied a pension. As for the Vienna Philharmonic, the fact that it made Helmut Wobisch its executive director says everything about its deep-seated unwillingness to face up to its collective sins.
Be that as it may, scarcely any prominent musicians chose to boycott either orchestra. Leonard Bernstein went so far as to affect a flippant attitude toward the morally equivocal conduct of the Austro-German artists whom he encountered in Europe after the war. Upon meeting Herbert von Karajan in 1954, he actually told his wife Felicia that he had become “real good friends with von Karajan, whom you would (and will) adore. My first Nazi.”
At the same time, though, Bernstein understood what he was choosing to overlook. When he conducted the Vienna Philharmonic for the first time in 1966, he wrote to his parents:
I am enjoying Vienna enormously—as much as a Jew can. There are so many sad memories here; one deals with so many ex-Nazis (and maybe still Nazis); and you never know if the public that is screaming bravo for you might contain someone who 25 years ago might have shot me dead. But it’s better to forgive, and if possible, forget. The city is so beautiful, and so full of tradition. Everyone here lives for music, especially opera, and I seem to be the new hero.
Did Bernstein sell his soul for the opportunity to work with so justly renowned an orchestra—and did he get his price by insisting that its members perform the symphonies of Mahler, with which he was by then closely identified? It is a fair question, one that does not lend itself to easy answers.
Even more revealing is the case of Bruno Walter, who never forgave Furtwängler for staying behind in Germany, informing him in an angry letter that “your art was used as a conspicuously effective means of propaganda for the regime of the Devil.” Yet Walter’s righteous anger did not stop him from conducting in Vienna after the war. Born in Berlin, he had come to identify with the Philharmonic so closely that it was impossible for him to seriously consider quitting its podium permanently. “Spiritually, I was a Viennese,” he wrote in Theme and Variations, his 1946 autobiography. In 1952, he made a second recording with the Vienna Philharmonic of Mahler’s Das Lied von der Erde, whose premiere he had conducted in 1911 and which he had recorded in Vienna 15 years earlier. One wonders what Walter, who had converted to Christianity but had been driven out of both his native lands for the crime of being Jewish, made of the text of the last movement: “My friend, / On this earth, fortune has not been kind to me! / Where do I go?”
As for the two great orchestras of the Third Reich, both have finally acknowledged their guilt and been forgiven, at least by those who know little of their past. It would occur to no one to decline on principle to perform with either group today. Such a gesture would surely be condemned as morally ostentatious, an exercise in what we now call virtue-signaling. Yet it is impossible to forget what Samuel Lipman wrote in 1993 in Commentary apropos the wartime conduct of Furtwängler: “The ultimate triumph of totalitarianism, I suppose it can be said, is that under its sway only a martyred death can be truly moral.” For the only martyrs of the Berlin and Vienna Philharmonics were their Jews. The orchestras themselves live on, tainted and beloved.
He knows what to reveal and what to conceal, understands the importance of keeping the semblance of distance between oneself and the story of the day, and comprehends the ins and outs of anonymous sourcing. Within days of his being fired by President Trump on May 9, for example, little green men and women, known only as his “associates,” began appearing in the pages of the New York Times and Washington Post to dispute key points of the president’s account of his dismissal and to promote Comey’s theory of the case.
“In a Private Dinner, Trump Demanded Loyalty,” the New York Times reported on May 11. “Comey Demurred.” The story was a straightforward narrative of events from Comey’s perspective, capped with an obligatory denial from the White House. The next day, the Washington Post reported, “Comey associates dispute Trump’s account of conversations.” The Post did not identify Comey’s associates, other than saying that they were “people who have worked with him.”
Maybe they were the same associates who had gabbed to the Times. Or maybe they were different ones. Who can tell? Regardless, the story these particular associates gave to the Post was readable and gripping. Comey, the Post reported, “was wary of private meetings and discussions with the president and did not offer the assurance, as Trump has claimed, that Trump was not under investigation as part of the probe into Russian interference in last year’s election.”
On May 16, Michael S. Schmidt of the Times published his scoop, “Comey Memo Says Trump Asked Him to End Flynn Investigation.” Schmidt didn’t see the memo for himself. Parts of it were read to him by—you guessed it—“one of Mr. Comey’s associates.” The following day, Robert Mueller was appointed special counsel to oversee the Russia investigation. On May 18, the Times, citing “two people briefed” on a call between Comey and the president, reported, “Comey, Unsettled by Trump, Is Said to Have Wanted Him Kept at a Distance.” And by the end of that week, Comey had agreed to testify before the Senate Intelligence Committee.
As his testimony approached, Comey’s people became more aggressive in their criticisms of the president. “Trump Should Be Scared, Comey Friend Says,” read the headline of a CNN interview with Brookings Institution fellow Benjamin Wittes. This “Comey friend” said he was “very shocked” when he learned that President Trump had asked Comey for loyalty. “I have no doubt that he regarded the group of people around the president as dishonorable,” Wittes said.
Comey, Wittes added, was so uncomfortable at the White House reception in January honoring law enforcement—the one where Comey lumbered across the room and Trump whispered something in his ear—that, as CNN paraphrased it, he “stood in a position so that his blue blazer would blend in with the room’s blue drapes in an effort for Trump to not notice him.” The integrity, the courage—can you feel it?
On June 6, the day before Comey’s prepared testimony was released, more “associates” told ABC that the director would “not corroborate Trump’s claim that on three separate occasions Comey told the president he was not under investigation.” And a “source with knowledge of Comey’s testimony” told CNN the same thing. In addition, ABC reported that, according to “a source familiar with Comey’s thinking,” the former director would say that Trump’s actions stopped short of obstruction of justice.
Maybe those sources weren’t as “familiar with Comey’s thinking” as they thought or hoped? To maximize the press coverage he already dominated, Comey had authorized the Senate Intelligence Committee to release his testimony ahead of his personal interview. That testimony told a different story than what had been reported by CNN and ABC (and by the Post on May 12). Comey had in fact told Trump the president was not under investigation—on January 6, January 27, and March 30. Moreover, the word “obstruction” did not appear at all in his written text. The senators asked Comey if he felt Trump obstructed justice. He declined to answer either way.
My guess is that Comey’s associates lacked Comey’s scalpel-like, almost Jesuitical ability to make distinctions, and therefore misunderstood what he was telling them to say to the press. Because it’s obvious Comey was the one behind the stories of Trump’s dishonesty and bad behavior. He admitted as much in front of the cameras in a remarkable exchange with Senator Susan Collins of Maine.
Comey said that, after Trump tweeted on May 12 that he’d better hope there aren’t “tapes” of their conversations, “I asked a friend of mine to share the content of the memo with a reporter. Didn’t do it myself, for a variety of reasons. But I asked him to, because I thought that might prompt the appointment of a special counsel. And so I asked a close friend of mine to do it.”
Collins asked whether that friend had been Wittes, known to cable news junkies as Comey’s bestie. Comey said no. The source for the New York Times article was “a good friend of mine who’s a professor at Columbia Law School,” Daniel Richman.
Every time I watch or read that exchange, I am amazed. Here is the former director of the FBI just flat-out admitting that, for months, he wrote down every interaction he had with the president of the United States because he wanted a written record in case the president ever fired or lied about him. And when the president did fire and lie about him, that director set in motion a series of public disclosures with the intent of not only embarrassing the president, but also forcing the appointment of a special counsel who might end up investigating the president for who knows what. And none of this would have happened if the president had not fired Comey or tweeted about him. He told the Senate that if Trump hadn’t dismissed him, he most likely would still be on the job.
Rarely, in my view, are high officials so transparent in describing how Washington works. Comey revealed to the world that he was keeping a file on his boss, that he used go-betweens to get his story into the press, that “investigative journalism” is often just powerful people handing documents to reporters to further their careers or agendas or even to get revenge. And as long as you maintain some distance from the fallout, and stick to the absolute letter of the law, you will come out on top, so long as you have a small army of nightingales singing to reporters on your behalf.
“It’s the end of the Comey era,” A.B. Stoddard said on Special Report with Bret Baier the other day. On the contrary: I have a feeling that, as the Russia investigation proceeds, we will be hearing much more from Comey. And from his “associates.” And his “friends.” And persons “familiar with his thinking.”
In April, COMMENTARY asked a wide variety of writers,
thinkers, and broadcasters to respond to this question: Is free speech under threat in the United States? We received twenty-seven responses. We publish them here in alphabetical order.
Floyd AbramsFree expression threatened? By Donald Trump? I guess you could say so.
When a president engages in daily denigration of the press, when he characterizes it as the enemy of the people, when he repeatedly says that the libel laws should be “loosened” so he can personally commence more litigation, when he says that journalists shouldn’t be allowed to use confidential sources, it is difficult even to suggest that he has not threatened free speech. And when he says to the head of the FBI (as former FBI director James Comey has said that he did) that Comey should consider “putting reporters in jail for publishing classified information,” it is difficult not to take those threats seriously.
The harder question, though, is this: How real are the threats? Or, as Michael Gerson put it in the Washington Post: Will Trump “go beyond mere Twitter abuse and move against institutions that limit his power?” Some of the president’s threats against the institution of the press, wittingly or not, have been simply preposterous. Surely someone has told him by now that neither he nor Congress can “loosen” libel laws; while each state has its own libel law, there is no federal libel law and thus nothing for him to loosen. What he obviously takes issue with is the impact that the Supreme Court’s 1964 First Amendment opinion in New York Times v. Sullivan has had on state libel laws. The case determined that public officials who sue for libel may not prevail unless they demonstrate that the statements made about them were false and were made with actual knowledge or suspicion of that falsity. So his objection to the rules governing libel law is to nothing less than the application of the First Amendment itself.
In other areas, however, the Trump administration has far more power to imperil free speech. We live under an Espionage Act, adopted a century ago, which is both broad in its language and uncommonly vague in its meaning. As such, it remains a half-open door through which an administration that is hostile to free speech might walk. Such an administration could initiate criminal proceedings against journalists who write about defense- or intelligence-related topics on the basis that classified information was leaked to them by present or former government employees. No such action has ever been commenced against a journalist. Press lawyers and civil-liberties advocates have strong arguments that the law may not be read so broadly and still be consistent with the First Amendment. But the scope of the Espionage Act and the impact of the First Amendment upon its interpretation remain unknown.
A related area in which the attitude of an administration toward the press may affect the latter’s ability to function as a check on government relates to the ability of journalists to protect the identity of their confidential sources. The Obama administration prosecuted more Espionage Act cases against sources of information to journalists than all prior administrations combined. After a good deal of deserved press criticism, it agreed to expand the internal guidelines of the Department of Justice designed to limit the circumstances under which such source revelation is demanded. But the guidelines are none too protective and are, after all, simply guidelines. A new administration is free to change or limit them or, in fact, abandon them altogether. In this area, as in so many others, it is too early to judge the ultimate treatment of free expression by the Trump administration. But the threats are real, and there is good reason to be wary.
Floyd Abrams is the author of The Soul of the First Amendment (Yale University Press, 2017).
Ayaan Hirsi AliFreedom of speech is being threatened in the United States by a nascent culture of hostility to different points of view. As political divisions in America have deepened, a conformist mentality of “right thinking” has spread across the country. Increasingly, American universities, where no intellectual doctrine ought to escape critical scrutiny, are some of the most restrictive domains when it comes to asking open-ended questions on subjects such as Islam.
Legally, speech in the United States is protected to a degree unmatched in almost any industrialized country. The U.S. has avoided unpredictable Canadian-style restrictions on speech, for example. I remain optimistic that as long as we have the First Amendment in the U.S., any attempt at formal legal censorship will be vigorously challenged.
Culturally, however, matters are very different in America. The regressive left is the forerunner threatening free speech on any issue that is important to progressives. The current pressure coming from those who call themselves “social-justice warriors” is unlikely to lead to successful legislation to curb the First Amendment. Instead, censorship is spreading in the cultural realm, particularly at institutions of higher learning.
The way activists of the regressive left achieve silence or censorship is by creating a taboo, and one of the most pernicious taboos in operation today is the word “Islamophobia.” Islamists are similarly motivated to rule any critical scrutiny of Islamic doctrine out of order. There is now a university center (funded by Saudi money) in the U.S. dedicated to monitoring and denouncing incidences of “Islamophobia.”
The term “Islamophobia” is used against critics of political Islam, but also against progressive reformers within Islam. The term implies an irrational fear that is tainted by hatred, and it has had a chilling effect on free speech. In fact, “Islamophobia” is a poorly defined term. Islam is not a race, and it is very often perfectly rational to fear some expressions of Islam. No set of ideas should be beyond critical scrutiny.
To push back in this cultural realm—in our universities, in public discourse—those favoring free speech should focus more on the message of dawa, the set of ideas that the Islamists want to promote. If the aims of dawa are sufficiently exposed, ordinary Americans and Muslim Americans will reject it. The Islamist message is a message of divisiveness, misogyny, and hatred. It’s anachronistic and wants people to live by tribal norms dating from the seventh century. The best antidote to Islamic extremism is the revelation of what its primary objective is: a society governed by Sharia. This is the opposite of censorship: It is documenting reality. What is life like in Saudi Arabia, Iran, the Northern Nigerian States? What is the true nature of Sharia law?
Islamists want to hide the true meaning of Sharia, Jihad, and the implications for women, gays, religious minorities, and infidels under the veil of “Islamophobia.” Islamists use “Islamophobia” to obfuscate their vision and imply that any scrutiny of political Islam is hatred and bigotry. The antidote to this is more exposure and more speech.
As pressure on freedom of speech increases from the regressive left, we must reject the notions that only Muslims can speak about Islam, and that any critical examination of Islamic doctrines is inherently “racist.”
Instead of contorting Western intellectual traditions so as not to offend our Muslim fellow citizens, we need to defend the Muslim dissidents who are risking their lives to promote the human rights we take for granted: equality for women, tolerance of all religions and orientations, our hard-won freedoms of speech and thought.
It is by nurturing and protecting such speech that progressive reforms can emerge within Islam. By accepting the increasingly narrow confines of acceptable discourse on issues such as Islam, we do dissidents and progressive reformers within Islam a grave disservice. For truly progressive reforms within Islam to be possible, full freedom of speech will be required.
Ayaan Hirsi Ali is a research fellow at the Hoover Institution, Stanford University, and the founder of the AHA Foundation.
Lee C. BollingerI know it is too much to expect that political discourse mimic the measured, self-questioning, rational, footnoting standards of the academy, but there is a difference between robust political debate and political debate infected with fear or panic. The latter introduces a state of mind that is visceral and irrational. In the realm of fear, we move beyond the reach of reason and a sense of proportionality. When we fear, we lose the capacity to listen and can become insensitive and mean.
Our Constitution is well aware of this fact about the human mind and of its negative political consequences. In the First Amendment jurisprudence established over the past century, we find many expressions of the problematic state of mind that is produced by fear. Among the most famous and potent is that of Justice Brandeis in Whitney v. California in 1927, one of the many cases involving aggravated fears of subversive threats from abroad. “It is the function of (free) speech,” he said, “to free men from the bondage of irrational fears.” “Men feared witches,” Brandeis continued, “and burned women.”
Today, our “witches” are terrorists, and Brandeis’s metaphorical “women” include the refugees (mostly children) and displaced persons, immigrants, and foreigners whose lives have been thrown into suspension and doubt by policies of exclusion.
The same fears of the foreign that take hold of a population inevitably infect our internal interactions and institutions, yielding suppression of unpopular and dissenting voices, victimization of vulnerable groups, attacks on the media, and the rise of demagoguery, with its disdain for facts, reason, expertise, and tolerance.
All of this poses a very special obligation on those of us within universities. Not only must we make the case in every venue for the values that form the core of who we are and what we do, but we must also live up to our own principles of free inquiry and fearless engagement with all ideas. This is why recent incidents on a handful of college campuses disrupting and effectively censoring speakers is so alarming. Such acts not only betray a basic principle but also inflame a rising prejudice against the academic community, and they feed efforts to delegitimize our work, at the very moment when it’s most needed.
I do not for a second support the view that this generation has an unhealthy aversion to engaging differences of opinion. That is a modern trope of polarization, as is the portrayal of universities as hypocritical about academic freedom and political correctness. But now, in this environment especially, universities must be at the forefront of defending the rights of all students and faculty to listen to controversial voices, to engage disagreeable viewpoints, and to make every effort to demonstrate our commitment to the sort of fearless and spirited debate that we are simultaneously asking of the larger society. Anyone with a voice can shout over a speaker; but being able to listen to and then effectively rebut those with whom we disagree—particularly those who themselves peddle intolerance—is one of the greatest skills our education can bestow. And it is something our democracy desperately needs more of. That is why, I say to you now, if speakers who are being denied access to other campuses come here, I will personally volunteer to introduce them, and listen to them, however much I may disagree with them. But I will also never hesitate to make clear why I disagree with them.
Lee C. Bollinger is the 19th president of Columbia University and the author of Uninhibited, Robust, and Wide-Open: A Free Press for a New Century. This piece has been excerpted from President Bollinger’s May 17 commencement address.
Richard A. Epstein
Today, the greatest threat to the constitutional protection of freedom of speech comes from campus rabble-rousers who invoke this very protection. In their book, the speech of people like Charles Murray and Heather Mac Donald constitutes a form of violence, bordering on genocide, that receives no First Amendment protection. Enlightened protestors are both bound and entitled to shout them down, by force or other disruptive actions, if their universities are so foolish as to extend them an invitation to speak. Any indignant minority may take the law into its own hands to eradicate the intellectual cancer before it spreads on their own campus.
By such tortured logic, a new generation of vigilantes distorts the First Amendment doctrine: Speech becomes violence, and violence becomes heroic acts of self-defense. The standard First Amendment interpretation emphatically rejects that view. Of course, the First Amendment doesn’t let you say what you want when and wherever you want to. Your freedom of speech is subject to the same limitations as your freedom of action. So you have no constitutional license to assault other people, to lie to them, or to form cartels to bilk them in the marketplace. But folks such as Murray, Mac Donald, and even Yiannopoulos do not come close to crossing into that forbidden territory. They are not using, for example, “fighting words,” rightly limited to words or actions calculated to provoke immediate aggression against a known target. Fighting words are worlds apart from speech that provokes a negative reaction in those who find your speech offensive solely because of the content of its message.
This distinction is central to the First Amendment. Fighting words have to be blocked by well-tailored criminal and civil sanctions lest some people gain license to intimidate others from speaking or peaceably assembling. The remedy for mere offense is to speak one’s mind in response. But it never gives anyone the right to block the speech of others, lest everyone be able to unilaterally increase his sphere of action by getting really angry about the beliefs of others. No one has the right to silence others by working himself into a fit of rage.
Obviously, it is intolerable to let mutual animosity generate factional warfare, whereby everyone can use force to silence rivals. To avoid this war of all against all, each side claims that only its actions are privileged. These selective claims quickly degenerate into a form of viewpoint discrimination, which undermines one of the central protections that traditional First Amendment law erects: a wall against each and every group out to destroy the level playing field on which robust political debate rests. Every group should be at risk for having its message fall flat. The new campus radicals want to upend that understanding by shutting down their adversaries if their universities do not. Their aggression must be met, if necessary, by counterforce. Silence in the face of aggression is not an acceptable alternative.
Richard A. Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law.
David FrenchWe’re living in the midst of a troubling paradox. At the exact same time that First Amendment jurisprudence has arguably never been stronger and more protective of free expression, millions of Americans feel they simply can’t speak freely. Indeed, talk to Americans living and working in the deep-blue confines of the academy, Hollywood, and the tech sector, and you’ll get a sense of palpable fear. They’ll explain that they can’t say what they think and keep their jobs, their friends, and sometimes even their families.
The government isn’t cracking down or censoring; instead, Americans are using free speech to destroy free speech. For example, a social-media shaming campaign is an act of free speech. So is an economic boycott. So is turning one’s back on a public speaker. So is a private corporation firing a dissenting employee for purely political reasons. Each of these actions is largely protected from government interference, and each one represents an expression of the speaker’s ideas and values.
The problem, however, is obvious. The goal of each of these kinds of actions isn’t to persuade; it’s to intimidate. The goal isn’t to foster dialogue but to coerce conformity. The result is a marketplace of ideas that has been emptied of all but the approved ideological vendors—at least in those communities that are dominated by online thugs and corporate bullies. Indeed, this mindset has become so prevalent that in places such as Portland, Berkeley, Middlebury, and elsewhere, the bullies and thugs have crossed the line from protected—albeit abusive—speech into outright shout-downs and mob violence.
But there’s something else going on, something that’s insidious in its own way. While politically correct shaming still has great power in deep-blue America, its effect in the rest of the country is to trigger a furious backlash, one characterized less by a desire for dialogue and discourse than by its own rage and scorn. So we’re moving toward two Americas—one that ruthlessly (and occasionally illegally) suppresses dissenting speech and the other that is dangerously close to believing that the opposite of political correctness isn’t a fearless expression of truth but rather the fearless expression of ideas best calculated to enrage your opponents.
The result is a partisan feedback loop where right-wing rage spurs left-wing censorship, which spurs even more right-wing rage. For one side, a true free-speech culture is a threat to feelings, sensitivities, and social justice. The other side waves high the banner of “free speech” to sometimes elevate the worst voices to the highest platforms—not so much to protect the First Amendment as to infuriate the hated “snowflakes” and trigger the most hysterical overreactions.
The culturally sustainable argument for free speech is something else entirely. It reminds the cultural left of its own debt to free speech while reminding the political right that a movement allegedly centered around constitutional values can’t abandon the concept of ordered liberty. The culture of free speech thrives when all sides remember their moral responsibilities—to both protect the right of dissent and to engage in ideological combat with a measure of grace and humility.
David French is a senior writer at National Review.
Pamela GellerThe real question isn’t whether free speech is under threat in the United States, but rather, whether it’s irretrievably lost. Can we get it back? Not without war, I suspect, as is evidenced by the violence at colleges whenever there’s the shamefully rare event of a conservative speaker on campus.
Free speech is the soul of our nation and the foundation of all our other freedoms. If we can’t speak out against injustice and evil, those forces will prevail. Freedom of speech is the foundation of a free society. Without it, a tyrant can wreak havoc unopposed, while his opponents are silenced.
With that principle in mind, I organized a free-speech event in Garland, Texas. The world had recently been rocked by the murder of the Charlie Hebdo cartoonists. My version of “Je Suis Charlie” was an event here in America to show that we can still speak freely and draw whatever we like in the Land of the Free. Yet even after jihadists attacked our event, I was blamed—by Donald Trump among others—for provoking Muslims. And if I tried to hold a similar event now, no arena in the country would allow me to do so—not just because of the security risk, but because of the moral cowardice of all intellectual appeasers.
Under what law is it wrong to depict Muhammad? Under Islamic law. But I am not a Muslim, I don’t live under Sharia. America isn’t under Islamic law, yet for standing for free speech, I’ve been:
- Prevented from running our advertisements in every major city in this country. We have won free-speech lawsuits all over the country, which officials circumvent by prohibiting all political ads (while making exceptions for ads from Muslim advocacy groups);
- Shunned by the right, shut out of the Conservative Political Action Conference;
- Shunned by Jewish groups at the behest of terror-linked groups such as the Council on American-Islamic Relations;
- Blacklisted from speaking at universities;
- Prevented from publishing books, for security reasons and because publishers fear shaming from the left;
- Banned from Britain.
A Seattle court accused me of trying to shut down free speech after we merely tried to run an FBI poster on global terrorism, because authorities had banned all political ads in other cities to avoid running ours. Seattle blamed us for that, which was like blaming a woman for being raped because she was wearing a short skirt.
This kind of vilification and shunning is key to the left’s plan to shut down all dissent from its agenda—they make legislation restricting speech unnecessary.
The same refusal to allow our point of view to be heard has manifested itself elsewhere. The foundation of my work is individual rights and equality for all before the law. These are the foundational principles of our constitutional republic. That is now considered controversial. Truth is the new hate speech. Truth is going to be criminalized.
The First Amendment doesn’t only protect ideas that are sanctioned by the cultural and political elites. If “hate speech” laws are enacted, who would decide what’s permissible and what’s forbidden? The government? The gunmen in Garland?
There has been an inversion of the founding premise of this nation. No longer is it the subordination of might to right, but right to might. History is repeatedly deformed with the bloody consequences of this transition.
Pamela Geller is the editor in chief of the Geller Report and president of the American Freedom Defense Initiative.
Jonah GoldbergOf course free speech is under threat in America. Frankly, it’s always under threat in America because it’s always under threat everywhere. Ronald Reagan was right when he said in 1961, “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”
This is more than political boilerplate. Reagan identified the source of the threat: human nature. God may have endowed us with a right to liberty, but he didn’t give us all a taste for it. As with most finer things, we must work to acquire a taste for it. That is what civilization—or at least our civilization—is supposed to do: cultivate attachments to certain ideals. “Cultivate” shares the same Latin root as “culture,” cultus, and properly understood they mean the same thing: to grow, nurture, and sustain through labor.
In the past, threats to free speech have taken many forms—nationalist passion, Comstockery (both good and bad), political suppression, etc.—but the threat to free speech today is different. It is less top-down and more bottom-up. We are cultivating a generation of young people to reject free speech as an important value.
One could mark the beginning of the self-esteem movement with Nathaniel Branden’s 1969 paper, “The Psychology of Self-Esteem,” which claimed that “feelings of self-esteem were the key to success in life.” This understandable idea ran amok in our schools and in our culture. When I was a kid, Saturday-morning cartoons were punctuated with public-service announcements telling kids: “The most important person in the whole wide world is you, and you hardly even know you!”
The self-esteem craze was just part of the cocktail of educational fads. Other ingredients included multiculturalism, the anti-bullying crusade, and, of course, that broad phenomenon known as “political correctness.” Combined, they’ve produced a generation that rejects the old adage “sticks and stones can break my bones but words can never harm me” in favor of the notion that “words hurt.” What we call political correctness has been on college campuses for decades. But it lacked a critical mass of young people who were sufficiently receptive to it to make it a fully successful ideology. The campus commissars welcomed the new “snowflakes” with open arms; truly, these are the ones we’ve been waiting for.
“Words hurt” is a fashionable concept in psychology today. (See Psychology Today: “Why Words Can Hurt at Least as Much as Sticks and Stones.”) But it’s actually a much older idea than the “sticks and stones” aphorism. For most of human history, it was a crime to say insulting or “injurious” things about aristocrats, rulers, the Church, etc. That tendency didn’t evaporate with the Divine Right of Kings. Jonathan Haidt has written at book length about our natural capacity to create zones of sanctity, immune from reason.
And that is the threat free speech faces today. Those who inveigh against “hate speech” are in reality fighting “heresy speech”—ideas that do “violence” to sacred notions of self-esteem, racial or gender equality, climate change, and so on. Put whatever label you want on it, contemporary “social justice” progressivism acts as a religion, and it has no patience for blasphemy.
When Napoleon’s forces converted churches into stables, the clergy did not object on the grounds that regulations regarding the proper care and feeding of animals had been violated. They complained of sacrilege and blasphemy. When Charles Murray or Christina Hoff Summers visits college campuses, the protestors are behaving like the zealous acolytes of St. Jerome. Appeals to the First Amendment have as much power over the “antifa” fanatics as appeals to Odin did to champions of the New Faith.
That is the real threat to free speech today.
Jonah Goldberg is a senior editor at National Review and a fellow at the American Enterprise Institute.
KC JohnsonIn early May, the Washington Post urged universities to make clear that “racist signs, symbols, and speech are off-limits.” Given the extraordinarily broad definition of what constitutes “racist” speech at most institutions of higher education, this demand would single out most right-of-center (and, in some cases, even centrist and liberal) discourse on issues of race or ethnicity. The editorial provided the highest-profile example of how hostility to free speech, once confined to the ideological fringe on campus, has migrated to the liberal mainstream.
The last few years have seen periodic college protests—featuring claims that significant amounts of political speech constitute “violence,” thereby justifying censorship—followed by even more troubling attempts to appease the protesters. After the mob scene that greeted Charles Murray upon his visit to Middlebury College, for instance, the student government criticized any punishment for the protesters, and several student leaders wanted to require that future speakers conform to the college’s “community standard” on issues of race, gender, and ethnicity. In the last few months, similar attempts to stifle the free exchange of ideas in the name of promoting diversity occurred at Wesleyan, Claremont McKenna, and Duke. Offering an extreme interpretation of this point of view, one CUNY professor recently dismissed dialogue as “inherently conservative,” since it reinforced the “relations of power that presently exist.”
It’s easy, of course, to dismiss campus hostility to free speech as affecting only a small segment of American public life—albeit one that trains the next generation of judges, legislators, and voters. But, as Jonathan Chait observed in 2015, denying “the legitimacy of political pluralism on issues of race and gender” has broad appeal on the left. It is only most apparent on campus because “the academy is one of the few bastions of American life where the political left can muster the strength to impose its political hegemony upon others.” During his time in office, Barack Obama generally urged fellow liberals to support open intellectual debate. But the current campus environment previews the position of free speech in a post-Obama Democratic Party, increasingly oriented around identity politics.
Waning support on one end of the ideological spectrum for this bedrock American principle should provide a political opening for the other side. The Trump administration, however, seems poorly suited to make the case. Throughout his public career, Trump has rarely supported free speech, even in the abstract, and has periodically embraced legal changes to facilitate libel lawsuits. Moreover, the right-wing populism that motivates Trump’s base has a long tradition of ideological hostility to civil liberties of all types. Even in campus contexts, conservatives have defended free speech inconsistently, as seen in recent calls that CUNY disinvite anti-Zionist fanatic Linda Sarsour as a commencement speaker.
In a sharply polarized political environment, awash in dubiously-sourced information, free speech is all the more important. Yet this same environment has seen both sides, most blatantly elements of the left on campuses, demand restrictions on their ideological foes’ free speech in the name of promoting a greater good.
KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center.
Laura KipnisI find myself with a strange-bedfellows problem lately. Here I am, a left-wing feminist professor invited onto the pages of Commentary—though I’d be thrilled if it were still 1959—while fielding speaking requests from right-wing think tanks and libertarians who oppose child-labor laws.
Somehow I’ve ended up in the middle of the free-speech-on-campus debate. My initial crime was publishing a somewhat contentious essay about campus sexual paranoia that put me on the receiving end of Title IX complaints. Apparently I’d created a “hostile environment” at my university. I was investigated (for 72 days). Then I wrote up what I’d learned about these campus inquisitions in a second essay. Then I wrote about it all some more, in a book exposing the kangaroo-court elements of the Title IX process—and the extra-legal gag orders imposed on everyone caught in its widening snare.
I can’t really comment on whether more charges have been filed against me over the book. I’ll just say that writing about being a Title IX respondent could easily become a life’s work. I learned, shortly after writing this piece, that I and my publisher were being sued for defamation, among other things.
Is free speech under threat on American campuses? Yes. We know all about student activists who wish to shut down talks by people with opposing views. I got smeared with a bit of that myself, after a speaking invitation at Wellesley—some students made a video protesting my visit before I arrived. The talk went fine, though a group of concerned faculty circulated an open letter afterward also protesting the invitation: My views on sexual politics were too heretical, and might have offended students.
I didn’t take any of this too seriously, even as right-wing pundits crowed, with Wellesley as their latest outrage bait. It was another opportunity to mock student activists, and the fact that I was myself a feminist rather than a Charles Murray or a Milo Yiannopoulos, made them positively gleeful.
I do find myself wondering where all my new free-speech pals were when another left-wing professor, Steven Salaita, was fired (or if you prefer euphemism, “his job offer was withdrawn”) from the University of Illinois after he tweeted criticism of Israel’s Gaza policy. Sure the tweets were hyperbolic, but hyperbole and strong opinions are protected speech, too.
I guess free speech is easy to celebrate until it actually challenges something. Funny, I haven’t seen Milo around lately—so beloved by my new friends when he was bashing minorities and transgender kids. Then he mistakenly said something authentic (who knew he was capable of it!), reminiscing about an experience a lot of gay men have shared: teenage sex with older men. He tried walking it back—no, no, he’d been a victim, not a participant—but his fan base was shrieking about pedophilia and fleeing in droves. Gee, they were all so against “political correctness” a few minutes before.
It’s easy to be a free-speech fan when your feathers aren’t being ruffled. No doubt what makes me palatable to the anti-PC crowd is having thus far failed to ruffle them enough. I’m just going to have to work harder.
Laura Kipnis’s latest book is Unwanted Advances: Sexual Paranoia Comes to Campus.
Eugene KontorovichThe free and open exchange of views—especially politically conservative or traditionally religious ones—is being challenged. This is taking place not just at college campuses but throughout our public spaces and cultural institutions. James Watson was fired from the lab he led since 1968 and could not speak at New York University because of petty, censorious students who would not know DNA from LSD. Our nation’s founders and heroes are being “disappeared” from public commemoration, like Trotsky from a photograph of Soviet rulers.
These attacks on “free speech” are not the result of government action. They are not what the First Amendment protects against. The current methods—professional and social shaming, exclusion, and employment termination—are more inchoate, and their effects are multiplied by self-censorship. A young conservative legal scholar might find himself thinking: “If the late Justice Antonin Scalia can posthumously be deemed a ‘bigot’ by many academics, what chance have I?”
Ironically, artists and intellectuals have long prided themselves on being the first defenders of free speech. Today, it is the institutions of both popular and high culture that are the censors. Is there one poet in the country who would speak out for Ann Coulter?
The inhibition of speech at universities is part of a broader social phenomenon of making longstanding, traditional views and practices sinful overnight. Conservatives have not put up much resistance to this. To paraphrase Martin Niemöller’s famous dictum: “First they came for Robert E. Lee, and I said nothing, because Robert E. Lee meant nothing to me.”
The situation with respect to Israel and expressions of support for it deserves separate discussion. Even as university administrators give political power to favored ideologies by letting them create “safe spaces” (safe from opposing views), Jews find themselves and their state at the receiving end of claims of apartheid—modern day blood libels. It is not surprising if Jewish students react by demanding that they get a safe space of their own. It is even less surprising if their parents, paying $65,000 a year, want their children to have a nicer time of it. One hears Jewish groups frequently express concern about Jewish students feeling increasingly isolated and uncomfortable on campus.
But demanding selective protection from the new ideological commissars is unlikely to bring the desired results. First, this new ideology, even if it can be harnessed momentarily to give respite to harassed Jews on campus, is ultimately illiberal and will be controlled by “progressive” forces. Second, it is not so terrible for Jews in the Diaspora to feel a bit uncomfortable. It has been the common condition of Jews throughout the millennia. The social awkwardness that Jews at liberal arts schools might feel in being associated with Israel is of course one of the primary justifications for the Jewish State. Facing the snowflakes incapable of hearing a dissonant view—but who nonetheless, in the grip of intersectional ecstasy, revile Jewish self-determination—Jewish students should toughen up.
Eugene Kontorovich teaches constitutional law at Northwestern University and heads the international law department of the Kohelet Policy Forum in Jerusalem.
Nicholas LemannThere’s an old Tom Wolfe essay in which he describes being on a panel discussion at Princeton in 1965 and provoking the other panelists by announcing that America, rather than being in crisis, is in the middle of a “happiness explosion.” He was arguing that the mass effects of 20 years of post–World War II prosperity made for a larger phenomenon than the Vietnam War, the racial crisis, and the other primary concerns of intellectuals at the time.
In the same spirit, I’d say that we are in the middle of a free-speech explosion, because of 20-plus years of the Internet and 10-plus years of social media. If one understands speech as disseminated individual opinion, then surely we live in the free-speech-est society in the history of the world. Anybody with access to the unimpeded World Wide Web can say anything to a global audience, and anybody can hear anything, too. All threats to free speech should be understood in the context of this overwhelmingly reality.
It is a comforting fantasy that a genuine free-speech regime will empower mainly “good,” but previously repressed, speech. Conversely, repressive regimes that are candid enough to explain their anti-free-speech policies usually say that they’re not against free speech, just “bad” speech. We have to accept that more free speech probably means, in the aggregate, more bad speech, and also a weakening of the power, authority, and economic support for information professionals such as journalists. Welcome to the United States in 2017.
I am lucky enough to live and work on the campus of a university, Columbia, that has been blessedly free of successful attempts to repress free speech. Just in the last few weeks, Charles Murray and Dinesh D’Souza have spoken here without incident. But, yes, the evidently growing popularity of the idea that “hate speech” shouldn’t be permitted on campuses is a problem, especially, it seems, at small private liberal-arts colleges. We should all do our part, and I do, by frequently and publicly endorsing free-speech principles. Opposing the BDS movement falls squarely into that category.
It’s not just on campuses that free-speech vigilance is needed, though. The number-one threat to free speech, to my mind, is that the wide-open Web has been replaced by privately owned platforms such as Facebook and Google as the way most people experience the public life of the Internet. These companies are committed to banning “hate speech,” and they are eager to operate freely in countries, like China, that don’t permit free political speech. That makes for a far more consequential constrained environment than any campus’s speech code.
Also, Donald Trump regularly engages in presidentially unprecedented rhetoric demonizing people who disagree with him. He seems to think this is all in good fun, but, as we have already seen at his rallies, not everybody hears it that way. The place where Trumpism will endanger free speech isn’t in the center—the White House press room—but at the periphery, for example in the way that local police handle bumptious protestors and the journalists covering them. This is already happening around the country. If Trump were as disciplined and knowledgeable as Vladimir Putin or Recep Tayyip Erdogan, which so far he seems not to be, then free speech could be in even more serious danger from government, which in most places is its usual main enemy.
Nicholas Lemann is a professor at Columbia Journalism School and a staff writer for the New Yorker.
Michael J. LewisFree speech is a right but it is also a habit, and where the habit shrivels so will the right. If free speech today is in headlong retreat—everywhere threatened by regulation, organized harassment, and even violence—it is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats.
Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious. Since the time of Pericles, deliberative democracy has been predicated on the art of persuasion, which demands the forceful clarity of thought and expression without which no one has ever been persuaded. But a legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance. It has been decades since any presidential debate has seen any sustained give and take over a matter of policy. If there is any suspense at all, it is only the possibility that a fatigued or peeved candidate might blurt out that tactless shard of truth known as a gaffe.
A generation accustomed to hearing platitudes smoothly dispensed from behind a teleprompter will find the speech of a fearless extemporaneous speaker to be startling, even disquieting; unfamiliar ideas always are. Unhappily, they have been taught to interpret that disquiet as an injury done to them, rather than as a premise offered to them to consider. All this would not have happened—certainly not to this extent—had not our deliberative democracy decided a generation ago that it preferred the security of incumbency to the risks of unshackled debate. The compulsory contraction of free speech on college campuses is but the logical extension of the voluntary contraction of free speech in our political culture.
Michael J. Lewis’s new book is City of Refuge: Separatists and Utopian Town Planning (Princeton University Press).
Heather Mac DonaldThe answer to the symposium question depends on how powerful the transmission belt is between academia and the rest of the country. On college campuses, violence and brute force are silencing speakers who challenge left-wing campus orthodoxies. These totalitarian outbreaks have been met with listless denunciations by college presidents, followed by . . . virtually nothing. As of mid-May, the only discipline imposed for 2017’s mass attacks on free speech at UC Berkeley, Middlebury, and Clare-mont McKenna College was a letter of reprimand inserted—sometimes only temporarily—into the files of several dozen Middlebury students, accompanied by a brief period of probation. Previous outbreaks of narcis-sistic incivility, such as the screaming-girl fit at Yale and the assaults on attendees of Yale’s Buckley program, were discreetly ignored by college administrators.
Meanwhile, the professoriate unapologetically defends censorship and violence. After the February 1 riot in Berkeley to prevent Milo Yiannapoulos from speaking, Déborah Blocker, associate professor of French at UC Berkeley, praised the rioters. They were “very well-organized and very efficient,” Blocker reported admiringly to her fellow professors. “They attacked property but they attacked it very sparingly, destroying just enough University property to obtain the cancellation order for the MY event and making sure no one in the crowd got hurt” (emphasis in original). (In fact, perceived Milo and Donald Trump supporters were sucker-punched and maced; businesses downtown were torched and vandalized.) New York University’s vice provost for faculty, arts, humanities, and diversity, Ulrich Baer, displayed Orwellian logic by claiming in a New York Times op-ed that shutting down speech “should be understood as an attempt to ensure the conditions of free speech for a greater group of people.”
Will non-academic institutions take up this zeal for outright censorship? Other ideological products of the left-wing academy have been fully absorbed and operationalized. Racial victimology, which drives much of the campus censorship, is now standard in government and business. Corporate diversity trainers counsel that bias is responsible for any lack of proportional racial representation in the corporate ranks. Racial disparities in school discipline and incarceration are universally attributed to racism rather than to behavior. Public figures have lost jobs for violating politically correct taboos.
Yet Americans possess an instinctive commitment to the First Amendment. Federal judges, hardly an extension of the Federalist Society, have overwhelmingly struck down campus speech codes. It is hard to imagine that they would be any more tolerant of the hate-speech legislation so prevalent in Europe. So the question becomes: At what point does the pressure to conform to the elite worldview curtail freedom of thought and expression, even without explicit bans on speech?
Social stigma against conservative viewpoints is not the same as actual censorship. But the line can blur. The Obama administration used regulatory power to impose a behavioral conformity on public and private entities. School administrators may have technically still possessed the right to dissent from novel theories of gender, but they had to behave as if they were fully on board with the transgender revolution when it came to allowing boys to use girls’ bathrooms and locker rooms.
Had Hillary Clinton had been elected president, the federal bureaucracy would have mimicked campus diversocrats with even greater zeal. That threat, at least, has been avoided. Heresies against left-wing dogma may still enter the public arena, if only by the back door. The mainstream media have lurched even further left in the Trump era, but the conservative media, however mocked and marginalized, are expanding (though Twitter and Facebook’s censorship of conservative speakers could be a harbinger of more official silencing).
Outside the academy, free speech is still legally protected, but its exercise requires ever greater determination.
Heather Mac Donald is a fellow at the Manhattan Institute and the author of The War on Cops.
John McWhorterThere is a certain mendacity, as Brick put it in Cat on a Hot Tin Roof, in our discussion of free speech on college campuses. Namely, none of us genuinely wish that absolutely all issues be aired in the name of education and open-mindedness. To insist so is to pretend that civilized humanity makes nothing we could call advancement in philosophical consensus.
I doubt we need “free speech” on issues such as whether slavery and genocide are okay, whether it has been a mistake to view women as men’s equals, or to banish as antique the idea that whites are a master race while other peoples represent a lower rung on the Darwinian scale. With all due reverence of John Stuart Mill’s advocacy for the regular airing of even noxious views in order to reinforce clarity on why they were rejected, we are also human beings with limited time. A commitment to the Enlightenment justifiably will decree that certain views are, indeed, no longer in need of discussion.
However, our modern social-justice warriors are claiming that this no-fly zone of discussion is vaster than any conception of logic or morality justifies. We are being told that questions regarding the modern proposals about cultural appropriation, about whether even passing infelicitous statements constitute racism in the way that formalized segregation and racist disparagement did, or about whether social disparities can be due to cultural legacies rather than structural impediments, are as indisputably egregious, backwards, and abusive as the benighted views of the increasingly distant past.
That is, the new idea is not only that discrimination and inequality still exist, but that to even question the left’s utopian expectation on such matters justifies the same furious, sloganistic and even physically violent resistance that was once levelled against those designated heretics by a Christian hegemony.
Of course the protesters in question do not recognize themselves in a portrait as opponents of something called heresy. They suppose that Galileo’s opponents were clearly wrong but that they, today, are actually correct in a way that no intellectual or moral argument could coherently deny.
As such, we have students allowed to decree college campuses as “racist” when they are the least racist spaces on the planet—because they are, predictably given the imperfection of humans, not perfectly free of passingly unsavory interactions. Thinkers invited to talk for a portion of an hour from the right rather than the left and then have dinner with a few people and fly home are treated as if they were reanimated Hitlers. The student of color who hears a few white students venturing polite questions about the leftist orthodoxy is supported in fashioning these questions as “racist” rhetoric.
The people on college campuses who openly and aggressively spout this new version of Christian (or even Islamist) crusading—ironically justifying it as a barricade against “fascist” muzzling of freedom when the term applies ominously well to the regime they are fostering—are a minority. However, the sawmill spinning blade of their rhetoric has succeeding in rendering opposition as risky as espousing pedophilia, such that only those natively open to violent criticism dare speak out. The latter group is small. The campus consensus thereby becomes, if only at moralistic gunpoint à la the ISIS victim video, a strangled hard-leftism.
Hence freedom of speech is indeed threatened on today’s college campuses. I have lost count of how many of my students, despite being liberal Democrats (many of whom sobbed at Hillary Clinton’s loss last November), have told me that they are afraid to express their opinions about issues that matter, despite the fact that their opinions are ones that any liberal or even leftist person circa 1960 would have considered perfectly acceptable.
Something has shifted of late, and not in a direction we can legitimately consider forwards.
John McWhorter teaches linguistics, philosophy, and music history at Columbia University and is the author of The Language Hoax, Words on the Move, and Talking Back, Talking Black.
Kate Bachelder OdellIt’s 2021, and Harvard Square has devolved into riots: Some 120 people are injured in protests, and the carnage includes fire-consumed cop cars and smashed-in windows. The police discharge canisters of tear gas, and, after apprehending dozens of protesters, enforce a 1:45 A.M. curfew. Anyone roaming the streets after hours is subject to arrest. About 2,000 National Guardsmen are prepared to intervene. Such violence and disorder is also roiling Berkeley and other elite and educated areas.
Oh, that’s 1970. The details are from the Harvard Crimson’s account of “anti-war” riots that spring. The episode is instructive in considering whether free speech is under threat in the United States. Almost daily, there’s a new YouTube installment of students melting down over viewpoints of speakers invited to one campus or another. Even amid speech threats from government—for example, the IRS’s targeting of political opponents—nothing has captured the public’s attention like the end of free expression at America’s institutions of higher learning.
Yet disruption, confusion, and even violence are not new campus phenomena. And it’s hard to imagine that young adults who deployed brute force in the 1960s and ’70s were deeply committed to the open and peaceful exchange of ideas.
There may also be reason for optimism. The rough and tumble on campus in the 1960s and ’70s produced a more even-tempered ’80s and ’90s, and colleges are probably heading for another course correction. In covering the ruckuses at Yale, Missouri, and elsewhere, I’ve talked to professors and students who are figuring out how to respond to the illiberalism, even if the reaction is delayed. The University of Chicago put out a set of free-speech principles last year, and others schools such as Princeton and Purdue have endorsed them.
The NARPs—Non-Athletic Regular People, as they are sometimes known on campus—still outnumber the social-justice warriors, who appear to be overplaying their hand. Case in point is the University of Missouri, which experienced a precipitous drop in enrollment after instructor Melissa Click and her ilk stoked racial tensions last spring. The college has closed dorms and trimmed budgets. Which brings us to another silver lining: The economic model of higher education (exorbitant tuition to pay ever more administrators) may blow up traditional college before the fascists can.
Note also that the anti-speech movement is run by rich kids. A Brookings Institution analysis from earlier this year discovered that “the average enrollee at a college where students have attempted to restrict free speech comes from a family with an annual income $32,000 higher than that of the average student in America.” Few rank higher in average income than those at Middlebury College, where students evicted scholar Charles Murray in a particularly ugly scene. (The report notes that Murray was received respectfully at Saint Louis University, “where the median income of students’ families is half Middlebury’s.”) The impulses of over-adulated 20-year-olds may soon be tempered by the tyranny of having to show up for work on a daily basis.
None of this is to suggest that free speech is enjoying some renaissance either on campus or in America. But perhaps as the late Wall Street Journal editorial-page editor Robert Bartley put it in his valedictory address: “Things could be worse. Indeed, they have been worse.”
Kate Bachelder Odell is an editorial writer for the Wall Street Journal.
Jonathan RauchIs free speech under threat? The one-syllable answer is “yes.” The three-syllable answer is: “Yes, of course.” Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive. “You mean to say that speech that is offensive, untruthful, malicious, seditious, antisocial, blasphemous, heretical, misguided, or all of the above deserves government protection?” That seemingly bizarre proposition is defensible only on the grounds that the marketplace of ideas turns out to be the most powerful engine of knowledge, prosperity, liberty, social peace, and moral advancement that our species has had the good fortune to discover.
Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it. At discouraging moments, it is helpful to remember that the country has made great strides toward free speech since 1798, when the Adams administration arrested and jailed its political critics; and since the 1920s, when the U.S. government banned and burned James Joyce’s great novel Ulysses; and since 1954, when the government banned ONE, a pioneering gay journal. (The cover article was a critique of the government’s indecency censors, who censored it.) None of those things could happen today.
I suppose, then, the interesting question is: What kind of threat is free speech under today? In the present age, direct censorship by government bodies is rare. Instead, two more subtle challenges hold sway, especially, although not only, on college campuses. The first is a version of what I called, in my book Kindly Inquisitors, the humanitarian challenge: the idea that speech that is hateful or hurtful (in someone’s estimation) causes pain and thus violates others’ rights, much as physical violence does. The other is a version of what I called the egalitarian challenge: the idea that speech that denigrates minorities (again, in someone’s estimation) perpetuates social inequality and oppression and thus also is a rights violation. Both arguments call upon administrators and other bureaucrats to defend human rights by regulating speech rights.
Both doctrines are flawed to the core. Censorship harms minorities by enforcing conformity and entrenching majority power, and it no more ameliorates hatred and injustice than smashing thermometers ameliorates global warming. If unwelcome words are the equivalent of bludgeons or bullets, then the free exchange of criticism—science, in other words—is a crime. I could go on, but suffice it to say that the current challenges are new variations on ancient themes—and they will be followed, in decades and centuries to come, by many, many other variations. Memo to free-speech advocates: Our work is never done, but the really amazing thing, given the proposition we are tasked to defend, is how well we are doing.
Jonathan Rauch is a senior fellow at the Brookings Institution and the author of Kindly Inquisitors: The New Attacks on Free Thought.
Nicholas Quinn RosenkranzSpeech is under threat on American campuses as never before. Censorship in various forms is on the rise. And this year, the threat to free speech on campus took an even darker turn, toward actual violence. The prospect of Milo Yiannopoulos speaking at Berkeley provoked riots that caused more than $100,000 worth of property damage on the campus. The prospect of Charles Murray speaking at Middlebury led to a riot that put a liberal professor in the hospital with a concussion. Ann Coulter’s speech at Berkeley was cancelled after the university determined that none of the appropriate venues could be protected from “known security threats” on the date in question.
The free-speech crisis on campus is caused, at least in part, by a more insidious campus pathology: the almost complete lack of intellectual diversity on elite university faculties. At Yale, for example, the number of registered Republicans in the economics department is zero; in the psychology department, there is one. Overall, there are 4,410 faculty members at Yale, and the total number of those who donated to a Republican candidate during the 2016 primaries was three.
So when today’s students purport to feel “unsafe” at the mere prospect of a conservative speaker on campus, it may be easy to mock them as “delicate snowflakes,” but in one sense, their reaction is understandable: If students are shocked at the prospect of a Republican behind a university podium, perhaps it is because many of them have never before laid eyes on one.
To see the connection between free speech and intellectual diversity, consider the recent commencement speech of Harvard President Drew Gilpin Faust:
Universities must be places open to the kind of debate that can change ideas….Silencing ideas or basking in intellectual orthodoxy independent of facts and evidence impedes our access to new and better ideas, and it inhibits a full and considered rejection of bad ones. . . . We must work to ensure that universities do not become bubbles isolated from the concerns and discourse of the society that surrounds them. Universities must model a commitment to the notion that truth cannot simply be claimed, but must be established—established through reasoned argument, assessment, and even sometimes uncomfortable challenges that provide the foundation for truth.
Faust is exactly right. But, alas, her commencement audience might be forgiven a certain skepticism. After all, the number of registered Republicans in several departments at Harvard—e.g., history and psychology—is exactly zero. In those departments, the professors themselves may be “basking in intellectual orthodoxy” without ever facing “uncomfortable challenges.” This may help explain why some students will do everything in their power to keep conservative speakers off campus: They notice that faculty hiring committees seem to do exactly the same thing.
In short, it is a promising sign that true liberal academics like Faust have started speaking eloquently about the crucial importance of civil, reasoned disagreement. But they will be more convincing on this point when they hire a few colleagues with whom they actually disagree.
Nicholas Quinn Rosenkranz is a professor of law at Georgetown. He serves on the executive committee of Heterodox Academy, which he co-founded, on the board of directors of the Federalist Society, and on the board of directors of the Foundation for Individual Rights in Education (FIRE).
Ben ShapiroIn February, I spoke at California State University in Los Angeles. Before my arrival, professors informed students that a white supremacist would be descending on the school to preach hate; threats of violence soon prompted the administration to cancel the event. I vowed to show up anyway. One hour before the event, the administration backed down and promised to guarantee that the event could go forward, but police officers were told not to stop the 300 students, faculty, and outside protesters who blocked and assaulted those who attempted to attend the lecture. We ended up trapped in the auditorium, with the authorities telling students not to leave for fear of physical violence. I was rushed from campus under armed police guard.
Is free speech under assault?
Of course it is.
On campus, free speech is under assault thanks to a perverse ideology of intersectionality that claims victim identity is of primary value and that views are a merely secondary concern. As a corollary, if your views offend someone who outranks you on the intersectional hierarchy, your views are treated as violence—threats to identity itself. On campus, statements that offend an individual’s identity have been treated as “microaggressions”–actual aggressions against another, ostensibly worthy of violence. Words, students have been told, may not break bones, but they will prompt sticks and stones, and rightly so.
Thus, protesters around the country—leftists who see verbiage as violence—have, in turn, used violence in response to ideas they hate. Leftist local authorities then use the threat of violence as an excuse to ideologically discriminate against conservatives. This means public intellectuals like Charles Murray being run off of campus and his leftist professorial cohort viciously assaulted; it means Ann Coulter being targeted for violence at Berkeley; it means universities preemptively banning me and Ayaan Hirsi Ali and Condoleezza Rice and even Jason Riley.
The campus attacks on free speech are merely the most extreme iteration of an ideology that spans from left to right: the notion that your right to free speech ends where my feelings begin. Even Democrats who say that Ann Coulter should be allowed to speak at Berkeley say that nobody should be allowed to contribute to a super PAC (unless you’re a union member, naturally).
Meanwhile, on the right, the president’s attacks on the press have convinced many Republicans that restrictions on the press wouldn’t be altogether bad. A Vanity Fair/60 Minutes poll in late April found that 36 percent of Americans thought freedom of the press “does more harm than good.” Undoubtedly, some of that is due to the media’s obvious bias. CNN’s Jeff Zucker has targeted the Trump administration for supposedly quashing journalism, but he was silent when the Obama administration’s Department of Justice cracked down on reporters from the Associated Press and Fox News, and when hacks like Deputy National Security Adviser Ben Rhodes openly sold lies regarding Iran. But for some on the right, the response to press falsities hasn’t been to call for truth, but to instead echo Trumpian falsehoods in the hopes of damaging the media. Free speech is only important when people seek the truth. Leftists traded truth for tribalism long ago; in response, many on the right seem willing to do the same. Until we return to a common standard under which facts matter, free speech will continue to rest on tenuous grounds.
Ben Shapiro is the editor in chief of The Daily Wire and the host of The Ben Shapiro Show.
Judith ShulevitzIt’s tempting to blame college and university administrators for the decline of free speech in America, and for years I did just that. If the guardians of higher education won’t inculcate the habits of mind required for serious thinking, I thought, who will? The unfettered but civil exchange of ideas is the basic operation of education, just as addition is the basic operation of arithmetic. And universities have to teach both the unfettered part and the civil part, because arguing in a respectful manner isn’t something anyone does instinctively.
So why change my mind now? Schools still cling to speech codes, and there still aren’t enough deans like the one at the University of Chicago who declared his school a safe-space-free zone. My alma mater just handed out prizes for “enhancing race and/or ethnic relations” to two students caught on video harassing the dean of their residential college, one screaming at him that he’d created “a space for violence to happen,” the other placing his face inches away from the dean’s and demanding, “Look at me.” All this because they deemed a thoughtful if ill-timed letter about Halloween costumes written by the dean’s wife to be an act of racist aggression. Yale should discipline students who behave like that, even if they’re right on the merits (I don’t think they were, but that’s not the point). They certainly don’t deserve awards. I can’t believe I had to write that sentence.
But in abdicating their responsibilites, the universities have enabled something even worse than an attack on free speech. They’ve unleashed an assault on themselves. There’s plenty of free speech around; we know that because so much bad speech—low-minded nonsense—tests our constitutional tolerance daily, and that’s holding up pretty well. (As Nicholas Lemann observes elsewhere in this symposium, Facebook and Google represent bigger threats to free speech than students and administrators.) What’s endangered is good speech.
Universities were setting themselves up to be used. Provocateurs exploit the atmosphere on campus to goad overwrought students, then gleefully trash the most important bastion of our crumbling civil society. Higher education and everything it stands for—logical argument, the scientific method, epistemological rigor—start to look illegitimate. Voters perceive tenure and research and higher education itself as hopelessly partisan and unworthy of taxpayers’ money.
The press is a secondary victim of this process of delegitimization. If serious inquiry can be waved off as ideology, then facts won’t be facts and reporting can’t be trusted. All journalism will be equal to all other journalism, and all journalists will be reduced to pests you can slam to the ground with near impunity. Politicians will be able to say anything and do just about anything and there will be no countervailing authority to challenge them. I’m pretty sure that that way lies Putinism and Erdoganism. And when we get to that point, I’m going to start worrying about free speech again.
Judith Shulevitz is a critic in New York.
Harvey SilverglateFree speech is, and has always been, threatened. The title of Nat Hentoff’s 1993 book Free Speech for Me – but Not for Thee is no less true today than at any time, even as the Supreme Court has accorded free speech a more absolute degree of protection than in any previous era.
Since the 1980s, the high court has decided most major free-speech cases in favor of speech, with most of the major decisions being unanimous or nearly so.
Women’s-rights advocates were turned back by the high court in 1986 when they sought to ban the sale of printed materials that, because deemed pornographic by some, were alleged to promote violence against women. Censorship in the name of gender–based protection thus failed to gain traction.
Despite the demands of civil-rights activists, the Supreme Court in 1992 declared cross-burning to be a protected form of expression in R.A.V. v. City of St. Paul, a decision later refined to strengthen a narrow exception for when cross-burning occurs primarily as a physical threat rather than merely an expression of hatred.
Other attempts at First Amendment circumvention have been met with equally decisive rebuff. When the Reverend Jerry Falwell sued Hustler magazine publisher Larry Flynt for defamation growing out of a parody depicting Falwell’s first sexual encounter as a drunken tryst with his mother in an outhouse, a unanimous Supreme Court lectured on the history of parody as a constitutionally protected, even if cruel, form of social and political criticism.
When the South Boston Allied War Veterans, sponsor of Boston’s Saint Patrick’s Day parade, sought to exclude a gay veterans’ group from marching under its own banner, the high court unanimously held that as a private entity, even though marching in public streets, the Veterans could exclude any group marching under a banner conflicting with the parade’s socially conservative message, notwithstanding public-accommodations laws. The gay group could have its own parade but could not rain on that of the conservatives.
Despite such legal clarity, today’s most potent attacks on speech are coming, ironically, from liberal-arts colleges. Ubiquitous “speech codes” limit speech that might insult, embarrass, or “harass,” in particular, members of “historically disadvantaged” groups. “Safe spaces” and “trigger warnings” protect purportedly vulnerable students from hearing words and ideas they might find upsetting. Student demonstrators and threats of violence have forced the cancellation of controversial speakers, left and right.
It remains unclear how much campus censorship results from politically correct faculty, control-obsessed student-life administrators, or students socialized and indoctrinated into intolerance. My experience suggests that the bureaucrats are primarily, although not entirely, to blame. When sued, colleges either lose or settle, pay a modest amount, and then return to their censorious ways.
This trend threatens the heart and soul of liberal education. Eventually it could infect the entire society as these students graduate and assume influential positions. Whether a resulting flood of censorship ultimately overcomes legal protections and weakens democracy remains to be seen.
Harvey Silverglate, a Boston-based lawyer and writer, is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (Free Press, 1998). He co-founded the Foundation for Individual Rights in Education in 1999 and is on FIRE’s board of directors. He spent some three decades on the board of the ACLU of Massachusetts, two of those years as chairman. Silverglate taught at Harvard Law School for a semester during a sabbatical he took in the mid-1980s.
Christina Hoff SommersWhen Heather Mac Donald’s “blue lives matter” talk was shut down by a mob at Claremont McKenna College, the president of neighboring Pomona College sent out an email defending free speech. Twenty-five students shot back a response: “Heather Mac Donald is a fascist, a white supremacist . . . classist, and ignorant of interlocking systems of domination that produce the lethal conditions under which oppressed peoples are forced to live.”
Some blame the new campus intolerance on hypersensitive, over-trophied millennials. But the students who signed that letter don’t appear to be fragile. Nor do those who recently shut down lectures at Berkeley, Middlebury, DePaul, and Cal State LA. What they are is impassioned. And their passion is driven by a theory known as intersectionality.
Intersectionality is the source of the new preoccupation with microaggressions, cultural appropriation, and privilege-checking. It’s the reason more than 200 colleges and universities have set up Bias Response Teams. Students who overhear potentially “otherizing” comments or jokes are encouraged to make anonymous reports to their campus BRTs. A growing number of professors and administrators have built their careers around intersectionality. What is it exactly?
Intersectionality is a neo-Marxist doctrine that views racism, sexism, ableism, heterosexism, and all forms of “oppression” as interconnected and mutually reinforcing. Together these “isms” form a complex arrangement of advantages and burdens. A white woman is disadvantaged by her gender but advantaged by her race. A Latino is burdened by his ethnicity but privileged by his gender. According to intersectionality, American society is a “matrix of domination,” with affluent white males in control. Not only do they enjoy most of the advantages, they also determine what counts as “truth” and “knowledge.”
But marginalized identities are not without resources. According to one of intersectionality’s leading theorists, Patricia Collins (former president of the American Sociology Association), disadvantaged groups have access to deeper, more liberating truths. To find their voice, and to enlighten others to the true nature of reality, they require a safe space—free of microaggressive put-downs and imperious cultural appropriations. Here they may speak openly about their “lived experience.” Lived experience, according to intersectional theory, is a better guide to the truth than self-serving Western and masculine styles of thinking. So don’t try to refute intersectionality with logic or evidence: That only proves that you are part of the problem it seeks to overcome.
How could comfortably ensconced college students be open to a convoluted theory that describes their world as a matrix of misery? Don’t they flinch when they hear intersectional scholars like bell hooks refer to the U.S. as an “imperialist, white-supremacist, capitalist patriarchy”? Most take it in stride because such views are now commonplace in high-school history and social studies texts. And the idea that knowledge comes from lived experience rather than painstaking study and argument is catnip to many undergrads.
Silencing speech and forbidding debate is not an unfortunate by-product of intersectionality—it is a primary goal. How else do you dismantle a lethal system of oppression? As the protesting students at Claremont McKenna explained in their letter: “Free speech . . . has given those who seek to perpetuate systems of domination a platform to project their bigotry.” To the student activists, thinkers like Heather MacDonald and Charles Murray are agents of the dominant narrative, and their speech is “a form of violence.”
It is hard to know how our institutions of higher learning will find their way back to academic freedom, open inquiry, and mutual understanding. But as long as intersectional theory goes unchallenged, campus fanaticism will intensify.
Christina Hoff Sommers is a resident scholar at the American Enterprise Institute. She is the author of several books, including Who Stole Feminism? and The War Against Boys. She also hosts The Factual Feminist, a video blog. @Chsommers
John StosselYes, some college students do insane things. Some called police when they saw “Trump 2016” chalked on sidewalks. The vandals at Berkeley and the thugs who assaulted Charles Murray are disgusting. But they are a minority. And these days people fight back.
Someone usually videotapes the craziness. Yale’s “Halloween costume incident” drove away two sensible instructors, but videos mocking Yale’s snowflakes, like “Silence U,” make such abuse less likely. Groups like Young America’s Foundation (YAF) publicize censorship, and the Foundation for Individual Rights in Education (FIRE) sues schools that restrict speech.
Consciousness has been raised. On campus, the worst is over. Free speech has always been fragile. I once took cameras to Seton Hall law school right after a professor gave a lecture on free speech. Students seemed to get the concept. Sean, now a lawyer, said, “Protect freedom for thought we hate; otherwise you never have a society where ideas clash, and we come up with the best idea.” So I asked, “Should there be any limits?” Students listed “fighting words,” “shouting fire in a theater,” malicious libel, etc.— reasonable court-approved exceptions. But then they went further. Several wanted bans on “hate” speech, “No value comes out of hate speech,” said Javier. “It inevitably leads to violence.”
No it doesn’t, I argued, “Also, doesn’t hate speech bring ideas into the open, so you can better argue about them, bringing you to the truth?”
“No,” replied Floyd, “With hate speech, more speech is just violence.”
So I pulled out a big copy of the First Amendment and wrote, “exception: hate speech.”
Two students wanted a ban on flag desecration “to respect those who died to protect it.”
One wanted bans on blasphemy:
“Look at the gravity of the harm versus the value in blasphemy—the harm outweighs the value.”
Several wanted a ban on political speech by corporations because of “the potential for large corporations to improperly influence politicians.”
Finally, Jillian, also now a lawyer, wanted hunting videos banned.
“It encourages harm down the road.”
I asked her, incredulously, “you’re comfortable locking up people who make a hunting film?”
“Oh, yeah,” she said. “It’s unnecessary cruelty to feeling and sentient beings.”
So, I picked up my copy of the Bill of Rights again. After “no law . . . abridging freedom of speech,” I added: “Except hate speech, flag burning, blasphemy, corporate political speech, depictions of hunting . . . ”
That embarrassed them. “We may have gone too far,” said Sean. Others agreed. One said, “Cross out the exceptions.” Free speech survived, but it was a close call. Respect for unpleasant speech will always be thin. Then-Senator Hillary Clinton wanted violent video games banned. John McCain and Russ Feingold tried to ban political speech. Donald Trump wants new libel laws, and if you burn a flag, he tweeted, consequences might be “loss of citizenship or a year in jail!” Courts or popular opinion killed those bad ideas.
Free speech will survive, assuming those of us who appreciate it use it to fight those who would smother it.
John Stossel is a FOX News/FOX Business Network Contributor.
Warren TreadgoldEven citizens of dictatorships are free to praise the regime and to talk about the weather. The only speech likely to be threatened anywhere is the sort that offends an important and intolerant group. What is new in America today is a leftist ideology that threatens speech precisely because it offends certain important and intolerant groups: feminists and supposedly oppressed minorities.
So far this new ideology is clearly dominant only in colleges and universities, where it has become so strong that most controversies concern outside speakers invited by students, not faculty speakers or speakers invited by administrators. Most academic administrators and professors are either leftists or have learned not to oppose leftism; otherwise they would probably never have been hired. Administrators treat even violent leftist protestors with respect and are ready to prevent conservative and moderate outsiders from speaking rather than provoke protests. Most professors who defend conservative or moderate speakers argue that the speakers’ views are indeed noxious but say that students should be exposed to them to learn how to refute them. This is very different from encouraging a free exchange of ideas.
Although the new ideology began on campuses in the ’60s, it gained authority outside them largely by means of several majority decisions of the Supreme Court, from Roe (1973) to Obergefell (2015). The Supreme Court decisions that endanger free speech are based on a presumed consensus of enlightened opinion that certain rights favored by activists have the same legitimacy as rights explicitly guaranteed by the Constitution—or even more legitimacy, because the rights favored by activists are assumed to be so fundamental that they need no grounding in specific constitutional language. The Court majorities found restricting abortion rights or homosexual marriage, as large numbers of Americans wish to do, to be constitutionally equivalent to restricting black voting rights or interracial marriage. Any denial of such equivalence therefore opposes fundamental constitutional rights and can be considered hate speech, advocating psychological and possibly physical harm to groups like women seeking abortions or homosexuals seeking approval. Such speech may still be constitutionally protected, but acting upon it is not.
This ideology of forbidding allegedly offensive speech has spread to most of the Democratic Party and the progressive movement. Rather than seeing themselves as taking one side in a free debate, progressives increasingly argue (for example) that opposing abortion is offensive to women and supporting the police is offensive to blacks. Some politicians object so strongly to such speech that despite their interest in winning votes, they attack voters who disagree with them as racists or sexists. Expressing views that allegedly discriminate against women, blacks, homosexuals, and various other minorities can now be grounds for a lawsuit.
Speech that supposedly offends women or minorities has already cost some people their careers, their businesses, and their opportunities to deliver or hear speeches. Such intimidation is the intended result of an ideology that threatens free speech.
Warren Treadgold is a professor of history at Saint Louis University.
Matt WelchLike a sullen zoo elephant rocking back and forth from leg to leg, there is an oversized paradox we’d prefer not to see standing smack in the sightlines of most our policy debates. Day by day, even minute by minute, America simultaneously gets less free in the laboratory, but more free in the field. Individuals are constantly expanding the limits and applications of their own autonomy, even as government transcends prior restraints on how far it can reach into our intimate business.
So it is that the Internal Revenue Service can charge foreign banks with collecting taxes on U.S. citizens (therefore causing global financial institutions to shun many of the estimated 6 million-plus Americans who live abroad), even while block-chain virtuosos make illegal transactions wholly undetectable to authorities. It has never been easier for Americans to travel abroad, and it’s never been harder to enter the U.S. without showing passports, fingerprints, retinal scans, and even social-media passwords.
What’s true for banking and tourism is doubly true for free speech. Social media has given everyone not just a platform but a megaphone (as unreadable as our Facebook timelines have all become since last November). At the same time, the federal government during this unhappy 21st century has continuously ratcheted up prosecutorial pressure against leakers, whistleblowers, investigative reporters, and technology companies.
A hopeful bulwark against government encroachment unique to the free-speech field is the Supreme Court’s very strong First Amendment jurisprudence in the past decade or two. Donald Trump, like Hillary Clinton before him, may prattle on about locking up flag-burners, but Antonin Scalia and the rest of SCOTUS protected such expression back in 1990. Barack Obama and John McCain (and Hillary Clinton—she’s as bad as any recent national politician on free speech) may lament the Citizens United decision, but it’s now firmly legal to broadcast unfriendly documentaries about politicians without fear of punishment, no matter the electoral calendar.
But in this very strength lies what might be the First Amendment’s most worrying vulnerability. Barry Friedman, in his 2009 book The Will of the People, made the persuasive argument that the Supreme Court typically ratifies, post facto, where public opinion has already shifted. Today’s culture of free speech could be tomorrow’s legal framework. If so, we’re in trouble.
For evidence of free-speech slippage, just read around you. When both major-party presidential nominees react to terrorist attacks by calling to shut down corners of the Internet, and when their respective supporters are actually debating the propriety of sucker punching protesters they disagree with, it’s hard to escape the conclusion that our increasingly shrill partisan sorting is turning the very foundation of post-1800 global prosperity into just another club to be swung in our national street fight.
In the eternal cat-and-mouse game between private initiative and government control, the former is always advantaged by the latter’s fundamental incompetence. But what if the public willingly hands government the power to muzzle? It may take a counter-cultural reformation to protect this most noble of American experiments.
Matt Welch is the editor at large of Reason.
Adam. J. WhiteFree speech is indeed under threat on our university campuses, but the threat did not begin there and it will not end there. Rather, the campus free-speech crisis is a particularly visible symptom of a much more fundamental crisis in American culture.
The problem is not that some students, teachers, and administrators reject traditional American values and institutions, or even that they are willing to menace or censor others who defend those values and institutions. Such critics have always existed, and they can be expected to use the tools and weapons at their disposal. The problem is that our country seems to produce too few students, teachers, and administrators who are willing or able to respond to them.
American families produce children who arrive on campus unprepared for, or uninterested in, defending our values and institutions. For our students who are focused primarily on their career prospects (if on anything at all), “[c]ollege is just one step on the continual stairway of advancement,” as David Brooks observed 16 years ago. “They’re not trying to buck the system; they’re trying to climb it, and they are streamlined for ascent. Hence they are not a disputatious group.”
Meanwhile, parents bear incomprehensible financial burdens to get their kids through college, without a clear sense of precisely what their kids will get out of these institutions in terms of character formation or civic virtue. With so much money at stake, few can afford for their kids to pursue more than career prospects.
Those problems are not created on campus, but they are exacerbated there, as too few college professors and administrators see their institutions as cultivators of American culture and republicanism. Confronted with activists’ rage, they offer no competing vision of higher education—let alone a compelling one.
Ironically, we might borrow a solution from the Left. Where progressives would leverage state power in service of their health-care agenda, we could do the same for education. State legislatures and governors, recognizing the present crisis, should begin to reform and renegotiate the fundamental nature of state universities. By making state universities more affordable, more productive, and more reflective of mainstream American values, they will attract students—and create incentives for competing private universities to follow suit.
Let’s hope they do it soon, for what’s at stake is much more than just free speech on campus, or even free speech writ large. In our time, as in Tocqueville’s, “the instruction of the people powerfully contributes to the support of a democratic republic,” especially “where instruction which awakens the understanding is not separated from moral education which amends the heart.” We need our colleges to cultivate—not cut down—civic virtue and our capacity for self-government. “Republican government presupposes the existence of these qualities in a higher degree than any other form,” Madison wrote in Federalist 55. If “there is not sufficient virtue among men for self-government,” then “nothing less than the chains of despotism” can restrain us “from destroying and devouring one another.”
Adam J. White is a research fellow at the Hoover Institution.
Cathy YoungA writer gets expelled from the World Science Fiction Convention for criticizing the sci-fi community’s preoccupation with racial and gender “inclusivity” while moderating a panel. An assault on free speech, or an exercise of free association? How about when students demand the disinvitation of a speaker—or disrupt the speech? When a critic of feminism gets banned from a social-media platform for unspecified “abuse”?
Such questions are at the heart of many recent free-speech controversies. There is no censorship by government; but how concerned should we be when private actors effectively suppress unpopular speech? Even in the freest society, some speech will—and should—be considered odious and banished to unsavory fringes. No one weeps for ostracized Holocaust deniers or pedophilia apologists.
But shunned speech needs to remain a narrow exception—or acceptable speech will inexorably shrink. As current Federal Communications Commission chairman Ajit Pai cautioned last year, First Amendment protections will be hollowed out unless undergirded by cultural values that support a free marketplace of ideas.
Sometimes, attacks on speech come from the right. In 2003, an Iraq War critic, reporter Chris Hedges, was silenced at Rockford College in Illinois by hecklers who unplugged the microphone and rushed the stage; some conservative pundits defended this as robust protest. Yet the current climate on the left—in universities, on social media, in “progressive” journalism, in intellectual circles—is particularly hostile to free expression. The identity-politics left, fixated on subtle oppressions embedded in everyday attitudes and language, sees speech-policing as the solution.
Is hostility to free-speech values on the rise? New York magazine columnist Jesse Singal argues that support for restrictions on public speech offensive to minorities has remained steady, and fairly high, since the 1970s. Perhaps. But the range of what qualifies as offensive—and which groups are to be shielded—has expanded dramatically. In our time, a leading liberal magazine, the New Republic, can defend calls to destroy a painting of lynching victim Emmett Till because the artist is white and guilty of “cultural appropriation,” and a feminist academic journal can be bullied into apologizing for an article on transgender issues that dares to mention “male genitalia.”
There is also a distinct trend of “bad” speech being squelched by coercion, not just disapproval. That includes the incidents at Middlebury College in Vermont and at Claremont McKenna in California, where mobs not only prevented conservative speakers—Charles Murray and Heather Mac Donald—from addressing audiences but physically threatened them as well. It also includes the use of civil-rights legislation to enforce goodthink in the workplace: Businesses may face stiff fines if they don’t force employees to call a “non-binary” co-worker by the singular “they,” even when talking among themselves.
These trends make a mockery of liberalism and enable the kind of backlash we have seen with Donald Trump’s election. But the backlash can bring its own brand of authoritarianism. It’s time to start rebuilding the culture of free speech across political divisions—a project that demands, above all, genuine openness and intellectual consistency. Otherwise it will remain, as the late, great Nat Hentoff put it, a call for “free speech for me, but not for thee.”
Cathy Young is a contributing editor at Reason.
Robert J. ZimmerFree speech is not a natural feature of human society. Many people are comfortable with free expression for views they agree with but would withhold this privilege for those they deem offensive. People justify such restrictions by various means: the appeal to moral certainty, political agendas, demand for change, opposing change, retaining power, resisting authority, or, more recently, not wanting to feel uncomfortable. Moral certainty about one’s views or a willingness to indulge one’s emotions makes it easy to assert that others are doing true damage or creating unacceptable offense simply by presenting a fundamentally different perspective.
The resulting challenges to free expression may come in the form of laws, threats, pressure (whether societal, group, or organizational), or self-censorship in the face of a prevailing consensus. Specific forms of challenge may be more or less pronounced as circumstances vary. But the widespread temptation to consider the silencing of “objectionable” viewpoints as acceptable implies that the challenge to free expression is always present.
The United States today is no exception. We benefit from the First Amendment, which asserts that the government shall make no law abridging the freedom of speech. However, fostering a society supporting free expression involves matters far beyond the law. The ongoing and increasing demonization of one group by another creates a political and social environment conducive to suppressing speech. Even violent acts opposing speech can become acceptable or encouraged. Such behavior is evident at both political rallies and university events. Our greatest current threat to free expression is the emergence of a national culture that accepts the legitimacy of suppression of speech deemed objectionable by a segment of the population.
University and college campuses present a particularly vivid instance of this cultural shift. There have been many well-publicized episodes of speakers being disinvited or prevented from speaking because of their views. However, the problem is much deeper, as there is significant self-censorship on many campuses. Both faculty and students sometimes find themselves silenced by social and institutional pressures to conform to “acceptable” views. Ironically, the very mission of universities and colleges to provide a powerful and deeply enriching education for their students demands that they embrace and protect free expression and open discourse. Failing to do so significantly diminishes the quality of the education they provide.
My own institution, the University of Chicago, through the words and actions of its faculty and leaders since its founding, has asserted the importance of free expression and its essential role in embracing intellectual challenge. We continue to do so today as articulated by the Chicago Principles, which strongly affirm that “the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.” It is only in such an environment that universities can fulfill their own highest aspirations and provide leadership by demonstrating the value of free speech within society more broadly. A number of universities have joined us in reinforcing these values. But it remains to be seen whether the faculty and leaders of many institutions will truly stand up for these values, and in doing so provide a model for society as a whole.
Robert J. Zimmer is the president of the University of Chicago.