Wednesday, August 31, 2005

Roberts = Bork?

I've decided to use the Roberts confirmation battle as a litmus test. Any liberal who supports him is sensible. The ones who oppose him are not. It's that simple.

Edwin Chemerinsky, a first-class scholar on the issue of religion and state, argued that liberals must oppose Roberts for the same reason they opposed Bork: because he is against Roe v. Wade, argued against the right of privacy, and supports a greater role for religion in the public sphere. He also believes his short tenure on the Court of Appeals proves Roberts is an extremist conservative.

Like many others, Chemerinsky incorrectly assumes that work offered as part of employment is indicative of personal views. Lawyers are often required to make arguments on behalf of their client. In this case, that was the Reagan administration, which opposed abortion rights and denied the existence of a constitutional right of privacy. So of course Roberts would oppose it. That was his job.

Chemerinsky also claims that his memos show he's an archconservative. I've written memos in school arguing against my personal preference. Memos are written for bosses, who have a certain position in mind.

Roberts tenure on the Court of Appeals was too short to be reflective of his possible jurisprudence on the Supreme Court.

Chemerinsky also ignores the distinction between Bork's clear-cut jurisprudence, which is strict textualism-originalism, and Robert's more Rehnquist-like conservatism. I've seen nothing that shows me that he's an originalist, which is precisely why some conservatives oppose him.

One last point: George W. Bush is a conservative. He's going to pick a conservative justice. There are many worse candidates (from the liberal point of view) out there.

(Hat Tip: Volokh Conspiracy)

Monday, August 29, 2005

Law School Takes a Lot of Time

I just started school today. It's a full load, plus a journal (no, not law review). I'm a little more busy than in the past, but I fully intend to keep up my blogging schedule at least on a regular basis. So I hope all my loyal readers keep visiting and reading. And if anyone has anything to say about the structure of this blog or its content, don't hesitate to comment on this post. I'm a law student. I'm used to harsh criticism.

Who Believes In a Living Constitution?

Jack Balkin in Slate today argues that we are all living constitutionalists. Looking at the outcome of an originalist methodology applied to most of the "great" cases of the 20th century, he concludes that no sane citizen would want to live under such a regime. Therefore we (including self-professed originalists) are all secretly happy the Court has for decades applied a more "progressive" view of the Constitution.

I respectfully disagree; not with the idea that I'd abhor an originalist world, but with the concept that the application of originalism to constitutional problems would necessarily lead to that world. No originalist I'm familiar with wants a society where flogging is legal. But if the majority wants to outlaw flogging, they are more than capable of doing it. If society wants to expand the Interstate Commerce Clause to grant the government absolute power, the people can invoke the Article V amendment power. But I'd guess we do not have a broad consensus on this point (although the vast majority of Americans would like to see a more expansive federal power than one envisioned by the original understanding of the Constitution).

The reality is that many of the landmark 20th century constitutional cases would have been accomplished by legislation or amendment. If the Court had continued to strike down New Deal legislation, Roosevelt's court-packing plan might have worked. Otherwise, the Constitution would have been amended. Or the legitimacy of the Court would have been greatly diminished.

Of course many of those decisions would not have legislated, including, but not limited to, Roe v. Wade, Miranda, and Craig v. Boren. And that's the crux of the issue. Balkin claims some of these decisions "are evidence of our gradual progress as a nation. They are what make us a country conceived in liberty and dedicated to the proposition that all people are created equal." He was referring particularly to Griswold v. Conneticut, Brown v. Board of Education, Craig, and Loving v. Virginia. Those cases probably are fundamental parts of constitutional doctrine. But they cannot be bunched together as if an originalist world would have made them impossible.

There's substantial evidence that Brown v. Board of Education reached an originalist conclusion (although used a method considered anathema to originalists). Moreover, in my eyes, Loving was similarly originalist in ends. If the 14th Amendment was designed to enshrine equality between the sexes, and the anti-miscegenation statues were created to separate the races on the assumption that one is inferior, the 14th Amendment would have to strike them down. We cannot even argue that originalism compels upholding the statutes because they existed when the Amendment was ratified simply because they didn't. The anti-miscegenation statute struck down was only passed in 1924.

Both Craig v. Boren and Griswold cannot be sustained under many theories of originalism. The former because the 14th Amendment was likely only passed to prohibit discrimination on the basis of race and the latter because no right of privacy can be found to be part of the original understanding. But not all originalists would agree. Randy Barnett, an originalist more of the libertarian bend, has argued that a presumption of liberty is implicit in the Constitution. That presumption is great enough to encompass a right to privacy. Barnett wrote a brief in favor of striking down anti-sodomy laws (although he based his argument on the illegitimacy of those state laws as exceeding the state's police power). His brand of originalism does not seem to compel state intrusions into the marital bedroom.

Even more interesting, Balkin considers his view (that we must look to the original understanding of the words, but not the original expected application) similar to Barnett's. He there argues that originalism and a living constitution can exist concurrently. Yet, his Slate article portrays the two as adversaries. Is Balkin afraid to legitimize originalism in any form in a more public forum?

There's much more to analyze in this article, especially his attack on originalism's justifications, but that's for another time.

Friday, August 26, 2005

Away For the Weekend

Sorry to all my loyal readers (um, anyone out there?), but I'm away right now and won't have access to the internet during the weekend. So my next post will probably be on Monday. You can read the archives until then, or stare at DovBear's blog until his rebuttal magically appears.

Thursday, August 25, 2005

The Harm of Same-Sex Marriage

Robert Justin Lipkin, a professor of law at Widener law school, recently uploaded an article onto SSRN entitled "The Harm of Same-Sex Marriage: Real or Imagined?" Lipkin argues that SSM does harm opponents of SSM, but concludes that this harm is not sufficient to override our adherence to equality.

He posits a harm that relates to what he calls a "normative environment." A person who believes in certain values will attempt to create an environment consistent with them. That environment should extend to the public sphere, because otherwise his normative environment will be violated. If a person strongly opposes religion, he will attempt to limit the influence of religion on himself, his children, his friends, etc. But if the government supports religion openly, that normative environment, his attempt to remain free of of its influence, will no longer serve its purpose. Religion in the public sphere cannot help but influence his life because its values will permeate society. Therefore he is harmed when religion is influential in the public sphere.

A similar harm exists for proponents of exclusively heterosexual marriage. Their opposition to SSM is a fundamental aspect of their normative environment, and since the recognition of SSM (its imposition in the public sphere) will trespass on his individual normative environment, he is harmed. Interestingly, this argument seems similar to my justification of moral legislation.

He concludes that this harm does not reach the threshold necessary to deny equality to a large section of society. If this justification was proper, desegregation would never have happened. But the Supreme Court recognized that harm to a normative environment, by itself, cannot justify such blatant discrimination.

I disagree with Lipkin precisely on this last point. It's not that I disagree with equality; I just don't believe equality is an issue here. Lipkin disagrees with the essential definition of marriage being for the purpose of procreation and child rearing, partly because both those activities can exist outside the marriage framework. While the marriage framework is the optimal place for childbearing and child rearing, he argues, that merely explains why society would want procreation to occur with the context of marriage; it does not explain how procreation is the essential reason for marriage.

I've argued before in the constitutional context that marriage was designed for procreation. Marriage evolved organically (unless one believes that G-d created the institution as we know it, but if one believes that, he'll have to admit that most religions consider procreation a fundamental aspect of marriage). Why would such an institution evolve? The society needs to procreate to survive. The optimal arena for procreation and educating new members of society is in the context of a stable environment between two parents. Men and women both provide differing perspectives on life and both are integral in the proper raising of the child.

Note: this should not be taken as an argument against gay adoption, because my argument only deals with the evolution of the institution, not whether that evolution took the proper path; perhaps today we could argue that society had it wrong, although no conservative worth his federalist society membership card would agree with such an argument.

I've yet to see another legitimate reason why the institution would come into being. To provide a stable environment for two people to express their love? Hardly a reason to recognize their relationship. While society benefits when people are happy, that happiness does not generate the necessary benefits to create an institution that is the bedrock of civilization. To allow a man to acquire property, including a wife? Not any better. Why create a new legal mechanism for this acquisition? Couldn't the property transfer be private? What benefit does society get from creating a separate legal status for property transfers of this kind? Do we have such a concept in the context of other property transactions?

The dearth of essential reasons for marriage leads me to believe that marriage was essentially "created" to promote procreation, which is in a society's interest. Therefore if a couple cannot procreate, the institution of marriage does not cover their relationship (sterile couples are an exception; see here at the end of the post). Hence since they do not fit into the concept of marriage, they are not being denied a right. It would be analogous to saying that society discriminates against men because it refuses to subsidize prenatal care for males. Men cannot have the right to such care because it's inapplicable to them.

My argument shows why Lipkin's recognition of a harm is correct, and why that harm is sufficient to not extend marriage to encompass SSM.

(Hat Tip: Legal Theory Blog)

Tuesday, August 23, 2005

Assisted Suicide And Federalism

Debate Club this week wades into the perilous question of federalism and assisted suicide. The debate pits Jonathan Adler, a law professor at Case Western Reserve University, against Wesley Smith, a lawyer and author.

The debate focuses on the Attorney General's interpretation of the Controlled Substances Act to include drugs that are often used in assisted suicide. Since a referendum in Oregon reflected the state's support for assisted suicide, this interpretation of a federal law conflicts with Oregon law. Under the preemption doctrine the federal law will prevail. What the Supreme Court is being asked to decide in Gonzales v. Oregon is whether an interpretation of a federal law by a member of the executive branch can trump state law.

In Gonzales v. Raich the Court recognized Congress' ability to pass law under the Commerce Clause that is in conflict with state law. Gonzales was a triumphant victory for supporters of broad federal powers, and represented the scaling back of the federalist progress the Rehnquist Court had made in Lopez and Morrison.

Like Raich, Gonzales v. Oregon is unique in that it revolves around a conflict between two conservative values: the sanctity of life and federalism. The former is important across the board; no liberal I can think of would argue that life is not important. Some just believe that a person's right to autonomy overrides the state's interest in protecting life. Conservatives, especially the so-called moral conservatives, reject this line of thought because it places too high a premium on autonomy and too little on life. The state must protect life, even if state interference would infringe on a "privacy" right.

Support for federalism is almost uniquely found among conservatives. Liberals generally do not trust the states to make proper decisions (well, except on the SSM issue), owing this distrust to years of state's right activists using federalism as a cover for racism. Conservatives recognize that states might abuse this power, but feel the benefits of federalism outweigh the risks of government mandated racism.

The assisted suicide question requires conservatives to balance the moral issues with their adherence to federalism. At what point must the federal government step in? Would any conservative allow states to murder disfavored minorities under the guise of states' rights? I would assume not. What about a state law that allowed the government to confiscate any property from its residents? Again I can't imagine a conservative supporting such a law. But what about a state deciding to implement a 60% income tax? I garner that many conservatives would support the state's right to pass such a law, while opposing the law itself. So where do conservatives draw the line?

Of course this analysis is simplistic. Conservatives come in many stripes and colors. Some support federal legislation that furthers morality (at least according to their interpretation). Others hold federalism up as a very high standard, almost never allowing moral legislation to infringe on state's rights.

The proper place to draw the line can only be determined if we understand the theoretical underpinnings of federalism. What end does federalism serve? Broadly speaking federalism allows for the many differences in opinion in a diverse and large country such as the US. Federalism is an important value because it gives people a choice, rather than requiring half the country to abide by the wishes of a tiny majority. On many important issues, local solutions are superior in that they can take into account the nuances of small groups.

Why do we have moral legislation? With the exception of libertarians and a small number of conservatives, most believe the government (or the people) should be able to determine the moral climate of the society they live in. Should people be allowed to kill fetuses? If the people do not want fetuses killed because it imposes a moral stain on society, the government should be allowed to outlaw abortion. The moral choices of the majority should dictate conduct for the minority because the conduct of the minority directly affects the moral climate that the majority enjoys.

So if Oregon's law would be allowed to pass, perhaps the assisted suicides would infringe on the rights of the residents of Alabama, because a society that allows assisted suicide is a society that is less moral than one that prohibits it (I realize that's a debatable proposition).

So the question then becomes how immoral the legislation is. Assisted suicide is something that involves life and death. But as Adler notes, we allow states to make all types of life and death decisions, such as the death penalty and abortion questions.

This question cannot be conclusively solved in one post on a blog. The moral issues notwithstanding, federalism is bedrock on which this country was built. The moral "stain" on society must be so egregious that it threatens to topple our society as we know it for federalism to take a back seat. So if you're still with me at this point, that's my take.

Is Same-Sex Marriage The First "Slip?"

Eugene Volokh (I've been quoting him a lot) recently posted law review article about the mechanisms of the slippery slope and its effect in relation to same-sex marriage (SSM). I've cited his analysis of the slippery slope in the past (here).

In short, he lists two types of slippery slopes and then applies them to two arguments made by opponents of SSM.

1) Attitude Altering

If society legalizes conduct, people who are unsure of its correctness will often defer to the legislatures or courts and presume their legal decisions are synonymous with the conduct's moral veracity.

2) Equality

If SSM is legalized, a greater number of people will support other nontraditional arrangements on the assumption that we must treat similar parties similarly.

He applies these mechanisms to two potent arguments:

A) The law will slope down to polygamous marriages.

1) Allowing SSM will make it more acceptable to make changes in the standard definition of marriage. While today people might be opposed to polygamy, in the future they might see SSM as normal and their attitude will shift to favor polygamy because SSM and polygamy rest on similar principles.

2) Moreover, polygamy will become accepted because SSM is rooted in concepts that apply equally to polygamy. If SSM is justified on the grounds that people can choose to marry whomever they wish, some people will argue that logic applies to polygamy as well.

In the case of both these arguments, Volokh is careful to point out that polygamy and SSM can easily be distinguished but his argument is that many people will not do that.

B) Legalizing SSM will lead to the government proscribing private discrimination on the basis of sexual orientation.

1) Can a tenant advertise for a heterosexual roommate? Today, as far as I know, the laws of no state ban such advertisements But if SSM is legalized, society will come to view homosexuality in a better light. Preferences that might seem rational today (not having a roommate who is attracted to one's gender) would be viewed as motivated by irrational animus. Hence the legitimization of homosexuality could cause a domino effect that would topple private actors' decisions insofar as hiring, rooming, or renting goes.

2) Moreover, the recognition of SSM would likely rest on principles that parallel the civil rights movements. That movement lead to Title VI, which banned employment discrimination and other acts designed to prevent explicit discrimination. Logically, we could conclude that people might view sexual orientation in the same vein: first we disallow bans on SSM, then we prohibit discrimination by employers.

Volokh supports SSM despite these arguments for utility reasons, and does not view SSM with moral disapproval.

The question of SSM is complex. I believe even in the absence of a slippery slope, which as I noted before I do not generally subscribe to, there are moral and social reasons to ban the modification of our long-standing institution. Volokh alludes to a "Burkean" concept: we should not make frivolous changes on the basis of a whim. This idea underpins conservatism, and in my eyes, is a sufficient basis for denying SSM by itself. Volokh's arguments only buttress this reason.

And It Is Done

The last settlement slated for evacuation has been dismantled. The total process of removing civilians from Gaza and Northern Samaria took less than a week. Thank G-d there were no fatalities, and only a few small injuries. The only Disengagement related violence was perpetrated by two fanatics against Israeli Arab and Palestinian targets (which I do not mean to minimize).

The Palestinians were smart enough not rock the boat - although the number of mortars fired were far too many for my liking. However, I understand Sharon not wanting to cause a PR backlash, and he wanted Israel to bask in the glow of international approval. International support carries little weight in my eyes, but that might change if I ever get to fill the Prime Minister's chair.

All and all Disengagement went far more smoothly than I had expected, and I'm grateful to G-d for that.

Monday, August 22, 2005

Why Attack Soldiers?

It looks like the lunatics decided to "defend" Northern Shomron rather than Gaza. That decision was probably a result of the IDF's ability to keep most of the infiltrators out of Gaza.

I've posted before about the motivation to passively resist. But what might be the motivation to use violence?

It would seem all four reasons would apply, although they would not necessarily apply to the same group of people who might resist for those reasons. Reasons two and three would apply only to people who are more intense in their religious devotion (at least according to the train of thought that views settlements are a key element of religious identity) or are just more upset and want to take out their anger on the soldiers; the soldiers are kicking them out of their home, but more than that, they are the representatives of the state that betrayed them. So some people might feel they are fair game.

Reason one would only seem a legitimate basis for violence to those who feel that we must show the world that Eretz Yisroel is so important that it's worth the costs of armed resistance: civil war, death, disunity, and a broken national morale. Reason four would make sense only to those who feel that passive resistance is not sufficient to deter future withdrawals, which rationally should be as high, or even higher, a percentage of settlers than the resisters. Interestingly, however, many more settlers resisted than have committed violent acts, and despite the hilltop youths extremism, the ratio will probably stay the same. It would seem that moral considerations have led most settlers to realize that deterring Sharon from evacuating parts of the West Bank is just not worth the cost.

Sunday, August 21, 2005

Becker and Posner of Affirmative Action

Becker and Posner deal (here and here) with the affirmative action issue on their blog this week. Interestingly Posner's opposition is more mild, and he leaves open a few possibilities when affirmative action would be justified. Becker, on the other hand, is a staunch opponent.

Becker's grievances are the usual list against the practice. He argues that affirmative action actually hurts minorities in many ways. For example, if we lower the criteria for certain groups, the rational outcome would be less qualified minorities on average in almost every school. This concept, dubbed the mismatch effect, was recently empirically supported by Richard Sander in his work on the effects of affirmative action on Black law students. Like Sander, Becker argues that the mismatch effect results in poorer performance by the minority group, which will often lead to fewer job opportunities.

In what would seem a counterintuitive conclusion Sander concludes that affirmative action in law school actually decreases the overall number of Black lawyers. His argument presumes that being in the bottom of the class will diminish self-esteem and lead many Black students to drop out of school or choose another career.

Moreover, Becker notes that the perception of minorities needing a "boost" leads many to conclude that the individual minority worker is not actually qualified but received his job because of his race. That perception causes many minorities to feel inadequate and has a drastic effect on self-esteem.

Posner's qualified opposition notwithstanding, Becker's complete disapproval seems to flow from the logical outcome of an affirmative action program. Granting minorities benefits at such a late stage in their education career would not likely benefit them. Perhaps more emphasis on elementary school education in minority districts or maybe even vouchers might be more successful in helping a large percentage of minorities reach the average standards of most of society.

On last point: neither Posner nor Becker dealt with the moral issues involved. Should society, to make up for past wrongs, impose new wrongs on members of the ethnic majority? Of course framing the question this way begs the question. So we can look at it this way: if society discriminated against women, would it be wrong to allow women to catch up by implementing programs that give them benefits over men?

I would say no. Granted discrimination existed in the past, but minorities now are (at least legally) on equal par with majorities. They have the same opportunities. Yes, it might take a few generations before minorities are properly represented in most fields. But creating a new form of injustice to rectify past wrongs seems unfair. It's wrong to assume that absent discrimination a minority candidate would be equally qualified with the majority candidate affirmative action programs displace. With everyone able to reach the utmost heights, we should allow the market to work itself out.

Should Israel Assassinate Terrorist Leaders? III

Sorry it took so long, but I've been very busy over the last few days, and will continue to be over the next few days as well. So here's my response:

Note: I did not read the comments on DovBear's blog, so some of these arguments might have already been offered.

DovBear argued that Israel should not continue their policy of assassinations. He listed four major reasons, all of which are either incorrect or misleading.

1) Assassinations are counterproductive.

He gives two reasons:

a) They only radicalize the Palestinians population, thereby increasing the ranks of the terrorists.

I do not deny that assassinations, at least the public ones, are easily used as recruiting tools to convince 18 years olds to detonate bombs in markets. But more than just the desire to kill Israelis is needed. A successful attack requires planning, training, and intelligence. Those three elements are provided by the leadership, whether on the local level, or at the highest ranks of the organization. So while taking out the leadership might increase the number of soldiers, without commanders we have a situation of too many sheep and not enough shepherds.

b) Assassinations violate due process laws and run contrary to a just legal system. Israel's enemies can then use those violations as evidence that Israel is immoral.

This argument misses the point. Assassinations are not punishments, at least not when forward looking. They are military actions taken by an army in accordance with the rules of warfare. An army can attack combatants without affording them due process rights. This is a point he misses throughout his analysis.

The fact that Palestinian propagandists wish to twist the situation to fit their agenda is irrelevant. The IDF should carry out a legitimate military plan and let the PR people worry about how to deal with propaganda.

This statement, by the way, was a little sensational:

"How can Israel claim to be morally superior to the Palestinians if they both play by the same rules?"

Play by the same rules? Even if we assumed that Israel was punishing terrorists without due process, that hardly compares to blowing up civilians, including children, due process or not.

2) Assassinations violate international, Israeli, and American law.

All three positions are wrong.

a) The sole evidence of a breach of Israeli law is Israel's lack of capital punishment. Well, actually that's not exactly true. Israel does have the death penalty, but only applies it in extreme circumstances (Adolph Eichmann). So in theory there's no law prohibiting the application of the death penalty to terrorists.

Of course this argument misses the point. Assassinations are not punishments.

b) International law does not prohibit assassinations. DovBear cites the Geneva Conventions, but as I've noted earlier, the conventions do not apply to Israel in the territories. But even if we assume they did apply, Article 3(d) only applies to punishments carried out against civilians. Assassination is not a punishment.

DovBear also argues that "[t]he killing of innocent non-combatant violates international norms and laws," and therefore any action that creates collateral damage is proscribed. This argument is obviously false. International law only requires that combatants minimize the risk of civilian casualties. No system of law that regulates war could outlaw all conduct that creates the risk of civilian injuries.

c) American law does not speak on this issue. The Code cited authorizes use of force for "legitimate self-defense." Responding to attacks by combatants does not constitute legitimate self-defense?

Although a side point, DovBear misconstrues Israel's policy.

He argues, "Israel's policy of extrajudicial killings, [is] designed to eliminate religious and political leaders...." Israel has attacked both religious and political leaders of Islamic terrorist organizations. But these groups do not properly differentiate between their political, military, and religious branches. Every facet of the organization is involved, often directly, in facilitating terrorist attacks. All are therefore fair game under the laws of war.

3) Assassinations are dangerous because they grant commanders too much power, and that power can be abused.

This argument can be made against any use of force. Majority of the IDF's actions are decided by local commanders. Why don't we assume that abuse will follow? Because the IDF, like any other army, likely reviews commanders' decisions. This review is even more likely when the policy is controversial. And when dealing with the leaders of the terrorist groups, the decision to assassinate largely comes from the upper echelons of the government.

4) Assassinations don't work.

I disagree. DovBear argues that only when the security fence was put up did attacks diminish. But the fence is hardly up all along the border between Israel and the territories. There certainly are gaps. So why haven't the terrorists taken advantage? Because without leadership they are powerless to properly run an effective organization. Without the proper organization, it becomes far easier for Israel to predict attacks and stop them.

A sustained campaign of assassination has greatly weakened the terrorist groups. The decrease in terrorist activity can be traced to many factors, including political pressure and the security fence. But assassinations played an important role in decreasing attacks.

Friday, August 19, 2005

Justice Scalia Hates Gays....

That's the "reasonable" inference reached by political scientist Daniel R. Pinello in a recent article. Pinello reviews the descriptive term used to refer to gays in the important decisions dealing with gay rights in recent years. He concludes that the justices sans Scalia use the term 'gay,' which is considered favorable by the gay community, 24.2% of the time. Scalia, on the other hand, has used the term only once (in a footnote), which adds up to it being used less than 1% in his opinions. Scalia apparently would rather use the word 'homosexual,' which Pinello believes is viewed in the gay community as favorably as 'negro' is in the Black community.

Since Scalia has seen numerous briefs by gay rights organizations, none of which calls itself 'homosexual,' clearly Scalia must know that the gay community disdains being called homosexuals. And yet he continues to use the term. So he must hate gays.

One would think that branding a sitting Supreme Court justice a bigot might require a certain level of evidence. Inferences from language usage would certainly not suffice, especially since the rest of the justices use the word less than a quarter of the time.

But let's assume the gay community would rather be called 'gay' than 'homosexual.' Is there any evidence that they consider the term 'homosexual' offensive? Even more importantly is there any evidence that Scalia knows they dislike the term? The fact that organizations might call themselves 'gay' does not imply they dislike 'homosexual.' It merely shows that some organizations like 'gay' more.

Compare to the African-American community. One could argue that most of the community would rather be called 'African-American.' But does that imply that they find the term 'Black' offensive? I've seen no evidence to compel that conclusion. The existence of a more favorable term does not designate the less favored term offensive.

I think a better question is: why do some liberals hate Justice Scalia?

(Hat Tip: SCOTUS Blog)

Teaching Morality In Modern Warfare

What's the best way to teach 18 year old new recruits how to make proper moral decisions in the heat of battle? Show them clips of Platoon. Apparently the most up to date army training program in Israel involves showing clips of classic army movies and having voice overs that tell the soldiers that these actions are wrong.

An interesting article by Amos N. Guiora details the training program all IDF recruits go through. He notes that modern warfare is qualitatively different from the wars of the past because today civilians and combatants are indistinguishable. Combatants go not wear insignias as required by the Third Geneva Convention, so soldiers are put at a huge disadvantage. Soldiers must make a split section decision whether the approaching Palestinian in jeans and a T-Shirt is a threat or just asking if he can pass.

At the very least his article lays out the dilemmas facing every soldier and commander in the IDF.

(Hat Tip: Legal Theory Blog)

Thursday, August 18, 2005

I Feel Happy

Despite supporting Disengagement I do not feel happy when I see Jewish men, women, and children forced out of their homes. Or for that matter I don't feel happy when I see anyone forced out of his home, including the families of suicide bombers. But I feel happy when I see headlines like this:

"Army breaks resistance in Gaza synagogues"

Why does that make me happy when that inevitably means people were evacuated from their home? Because we could be seeing headlines like this:

"3 soldiers, settlers killed in clashes."

Every time I type JPost into Internet Explorer I feel a knot in my stomach. Let's hope we never see headlines like that.

Well if Dead British Troops is his Goal....

A recent statement by British MP George Galloway, staunch critic of the Iraq war:

"The real question is, after the evidence of Sykes-Picot 1, are you ready to accept Sykes-Picot 2? What does Sykes-Picot mean to the Arab world? Nothing except division, disunity, weakness, and failure. Two of your beautiful daughters are in the hands of foreigners - Jerusalem and Baghdad. The foreigners are doing to your daughters as they will. The daughters are crying for help, and the Arab world is silent. And some of them are collaborating with the rape of these two beautiful Arab daughters. Why? Because they are too weak and too corrupt to do anything about it. So this is what Sykes-Picot will do to the Arabs. Are you ready to have another hundred years like the hundred years you just had?"

Wow. Eugene Volokh has a whole post about the bounds of permissible speech as it relates to treason. That's not what I want to focus on.

Galloway used the perfect imagery to rile up the Arab world. If he was a leader in the insurgency, he'd no doubt have gotten his troops "fired up." He invoked the two most offensive themes in most of the Arab world: imperialism and sexual degradation.

Sykes-Picot was a British and French agreement to split up the Middle East in 1916. This agreement is still cited as the beginning of the imperial influence in the Arab homeland. Alluding to a Sykes-Picot II is a way of implying that the Anglo-American invasion of Iraq is not only about conquering that country, but taking over the whole Arab world.

Invoking the image of rape is the perfect way to grow the insurgency. Sexual degradation of an Arab leads to a response far stronger than any other form of insult. Abu Gharib was that bad because of the type of disgrace, because there was a sexual component. And nothing is worse than mistreating Arab girls.

In parts of the Arab world (not all) mistreatment of an Arab woman can lead to her death to restore the family honor. In those parts, it's imperative on Arab males to protect their women. What choice do these people have now instead of defending their "daughters?"

This type of irresponsible rhetoric sickens me. Thank G-d it hasn't gotten this bad in the US. Yet.

Should Israel Assassinate Terrorist Leaders? II

This post will lay out the socio-economic argument for assassination.

My first post dealt with the legal and moral issues of assassination. I argued that the terrorist leaders do not have the right of due process because they are not civilians. Even when they might have such a right, such as when Israel uses assassinations to retaliate, that right is overridden by the society's right to defend itself.

Assassination, whether forward looking (preventing attacks) or backward-looking (punishing for past attacks) surely has valuable benefits for Israeli society. Both uses create a disincentive for Palestinians to become terrorists because the risk of death increases when Israel is capable of killing them at any time. While this disincentive might not affect a potential suicide bomber, it certainly would make leader in the chain of command think twice before sending a bomber to a bus in Tel Aviv. Assassination should therefore decrease the overall instances of terrorist activity, since leaders will be more wary of launching attacks.

Moreover, as noted earlier, the threat of death disrupts the smooth communication between leaders and soldiers. A leader in fear of his life will have to take measures to protect himself, and every measure diminishes his ability to promote his objective of attacking Israel. If planning and training becomes more difficult, attacks become more sparse. And the less often bombers can be sent, the chances of them being caught increase. So the overall number of successful attacks should drop.

Another element of assassination is that it makes Israel's citizens feel like justice was served. Steven R. David argues that assassinations are justified because they take revenge on the killers of Israelis. He argues that revenge can be a good thing if done within a context. I'm not sure I agree that morally it is a good thing, but the feeling of vindication Israelis feel when their killers meet their fate is certainly a benefit for a society like Israel. While Israel is the most western nation in that region, it still exists in a region of tit-for-tit. The classic Arab societal response of vengeance killings (common among Palestinian subgroups) does have its manifestations in a society like Israel that is so imbedded in the Middle East. It's not a stretch to argue that many Israelis would support killing for vengeance.

His other point is better taken. Another primary function of punishment is retribution. A crime must have a punishment. While this is a moral argument for punishment, most societies would agree with retribution as a reason for punishment. The society feels more at peace if criminals receive their just due. That feeling is a benefit. This argument is similar to the one above, except that, in my mind, retribution is a more proper reason to assassinate than revenge.

Of course, both retribution and revenge can be had after due process, but given the current climate, the costs of invading and capturing terrorists greatly exceed the costs of killing them, while the benefits would be more or less equal.

On a side note the benefit for society is increased in more than "feelings of vindication." The visceral effect of seeing the charred remains of a terrorist's car is substantially greater than hearing that some hit-squad captured him or seeing him put in prison for life.

Lastly, Israel's policy of assassination will make it more acceptable around the world. The greatest weapon of the terrorist is his ability to hide among civilians and be protected from large scale assaults that are needed to arrest him. Israel's policy has negated that weapon by allowing other countries (like the US) to kill the terrorist directly. Criticism of Israel's policy diminished as it became more common. How many times is the EU going to condemn assassinations? The more it's done, the more acceptable it becomes.

Why Resist?

I've been trying to figure out why settlers in Gaza are resisting demands to evacuate the area. They can't win, and I'm sure most know that. I've come up with a few reasons in no particular order. Not all these reasons apply to everyone of course.

1) Making a point. The resisters in Gaza feel that they must show the rest of the Israeli society that they are not going to leave without a fight. Fighting for something shows its importance. And Gaza is important. It's important because it's part of the land of Israel. By resisting they display its importance to the world.

2) Blowing off steam. Lots of people are angry. They are angry at the country for throwing them out of their homes. They are angry that their land will find its way into the hands of some Palestinian terrorist. They are angry that they were given economic incentives to move there and were then turned on. They are angry that someone would dare to give away G-d's land.

3) Religious Fervor. G-d gave us the land of Israel. How can we give it away? They feel that they have a religious imperative to ensure the land is not transferred to the Palestinians. These people probably feel they can stop the Disengagement.

4) Deterrence. Take a look at all the stories about how difficult it has been emotionally for soldiers to remove people from their homes. It will become even more difficult when they have to go into shuls and drag people out with their tefillin on. If it's so hard to evacuate a few thousand people now, imagine how difficult it will be to withdraw from any major population centers in the West Bank. Under Barak's plan at Taba almost 80,000 settlers were to be evacuated. By making it difficult in Gaza, it makes it far more difficult to gain political support for any large scale withdrawals in the future. Personally this seems like the best reason.

I'm sure there are other reasons, but I'm too tired to come up with any of them.

Wednesday, August 17, 2005

Should Israel Assassinate Terrorist Leaders?

For the purpose of this debate, we're limiting the term "terrorist leader" to include only members of Hamas, Islamic Jihad, the Al Aqsa Martyrs Brigade, and the PFLP. Moreover, we're only reviewing Israel's policy since 2000. We are not debating whether killing Abu Jihad during the first Intifada was the correct move.

The question of whether a country should follow a certain policy can be analyzed in many different ways. But before we see if it should assassinate terrorist leaders, we must see if it can.

The "can" question is legal question. So to start: is it legal for Israel to assassinate Palestinian terrorist leaders? The applicable laws are international humanitarian law and the laws of war. I'm staying clear of Israeli law.

In short, the answer is yes. Article 23 of the Hague Conventions of 1907 (binding on Israel) makes it illegal “to kill or wound treacherously individuals belonging to the hostile nation or army.” It is almost unanimous that the Palestinians are not a nation in the legal sense, at least not for the purpose of the laws of war. They do not have a state or army and they cannot declare war.

So if the Palestinians do not have a state, what is the legal status of Hamas? Since we lack a universal definition of terrorism, it's hard to legally declare them terrorists under international law (under US and Israeli law they most certainly are, though). Hamas is a militia and carries out attacks on Israeli soldiers and civilians. They cannot be considered soldiers, but they cannot be considered civilians either. They would probably fall somewhere in between, probably best characterized as "illegal combatants" similar to most of those in Guantanamo.

Combatants, legal or not, are not afforded due process rights. A soldier is not required to issue an indictment before shooting at the enemy. Similarly, the IDF is not required to protect their due process rights. Moreover, a soldier can kill a high ranking officer providing he does not "treacherously" do so. The term is usually understood to prohibit soldiers from dressing up as reporters and executing a general. But a fearless Delta Force member would be allowed to sneak into the enemy camp and kill the general. That would not be treacherous.

Furthermore this argument only applies to members of a recognized army. Hamas is not an army. They are not afforded the same protections.

I believe Israel can assassinate Palestinain terrorist leaders. Should they?

There are two reasons to carry out assassinations: to stop future terrorist attacks or to retaliate for previous ones. The former is much more morally palatable. The latter would seem to be more of a punishment; and punishments cannot be administered without due process.

Israel's stated policy is generally target "ticking bombs," which means the terrorists are on their way to commit an attack. Such a policy would seem morally just. It is no different than ambushing a soldier on the way to the front.

Often times, though, Israel has killed leaders who were not involved in carrying out an attack. For example, Israel executed Yassin and Rantisi, the two big leaders of Hamas, in a matter of weeks. Yassin was a blind paraplegic and was not going to carry out attacks.

However, I believe Israel is still within its rights to kill him. He provided moral support and most likely guidance about who and what to attack. Furthermore, he represented the top of the chain. Killing him would logically have a weakening effect on the organization. Leaders who fear for their lives are less likely to plan attacks. For most of the Intifada, the Hamas leaders hid (with the exception of Yassin who felt he was immune) and rarely used their cell phones. These reasons justify killing him and other leaders.

What about killing leaders for earlier attacks? Retaliation does serve as a form of deterrence. Leaders who know they will be killed are less likely to plan attacks. In fact, a purpose of punishment is to deter. Given the benefits of assassinations, such as the weakening of the chain and command and therefore the organization as a whole, it would seem justified.

Lastly, it would be better if the PA would arrest these leaders. And of course if Israel could, it should do the same. But to arrest a major player in Islamic Jihad would involve a massive invasion and would inevitably lead to more deaths on both sides.

There's a lot more to look at, especially the collateral damage issue, but I want to give DovBear something to talk about.

The Grand Blog Debate

Going back on this post and in particular this comment by DovBear, we've decided to debate whether Israel should carry out a policy of assassinating Palestinian terrorist leaders. The exact debate topic is:

"During the past years, Israel has assassinated top leaders of Hamas, Islamic Jihad, PFLP and the Al Aqsa Martyrs Brigade, each time without going through the official criminal procedures. Should Israel be carrying out such a policy?" Nephtuli argues yes. DovBear argues no.

Ground rules:

The debate lasts until Monday (with the exception of Shabbos of course). Each day, starting today we will each post on the issue. Comments are welcome but we will not respond to them, at least not in a post.

This is going to be fun and I'm looking forward to it.

I'm up first, so here goes.

Does Law Really Travel Down a Slippery Slope?

The slippery slope argument is often used to justify a certain legal position, whether involving legalizing an activity or banning it. For example some opponents of the Court's decision in Lawrence v. Texas argued that striking down a law prohibiting same-sex sodomy will lead to gay marriage and polygamy. Is such a rhetorical device truly a logical argument?

I've always believe that the slippery slope argument works well when dealing with people's conduct, but cannot successfully rebut an argument to change or pass a law. In Jewish law, many strictures were put into place banning permitted conduct because it could lead to illicit conduct. This is a form of the slippery slope argument. People might misconstrue the allowance for permissive conduct to be a signal to engage in impermissible conduct.

This argument makes sense. We cannot assume people are erudite in the nuances of the law. People will often fail to distinguish the legal bounds between legal and illegal. Hence we move the line to cover even permissible conduct to prevent people from sliding down the slippery slope to illicit conduct.

But in the case of making a law the argument does not stand. In short the argument is that if we legalize certain conduct, we will end up legalizing less appealing conduct. But the argument is flawed. Legislators and judges (who should not be making law, but that's a different topic) have the knowledge and time to dispassionately sit and analyze each law by itself. If they are convinced to legalize same-sex sodomy, it does not mean they will be convinced to legalize same-sex marriage. One step at a time.

Eugene Volokh lists a few circumstances where a law or decision was passed with the assurance that it would not serve as a precedent for other laws, but ended being just that precedent. For example, in Griswold v. Connecticut, a three member concurrence dismissed the slippery slope argument by reaffirming the state's right to regulate homosexuality. But in Lawrence, the Court used Griswold as the precedent to deny the state the right to do exactly that!

Volokh also makes some compelling arguments for the slippery slope argument. He distinguishes between types of slippery slopes. One major type is the cost-lowering slippery slope. By passing a law it makes it easier politically to pass a more distasteful law. His example is gun registration. Gun registration itself might not be a problem. But if guns are registered it becomes cheaper and easier to confiscate them. While confiscation without registration might be difficult to get done due to costs and the required political capital, once guns are registered it becomes easier to take them away.

Another type is the "attitude-altering slippery slope." Once something becomes illegal, people begin to assume its wrong. Immoral and illegal become easily conflated. So, for example, if the government outlawed assault weapons, people will start assuming, over time, that it's wrong to own those guns. It is a much shorter step to convincing people that outlawing all guns is a good thing.

He lists other types and the key conclusion offered by Volokh is that the slippery slope argument is not automatically illogical. But proponents must point out the mechanism under which the law will move down the slope.

A very solid argument from a pragmatic point of view. In theory, the government and people should be able to distinguish between the steps and decide on each one individually. In practice, that won't happen.

But despite what one thinks about the slippery slope in general, Volokh's arguments are food for thought.

So.... Completely.... Frustrating...

I don't get it. I'm Jewish. I have a solid understanding of the ultra-nationalist ideology that motivates some of the extremists. Yet, I'm absolutely dumbfounded by another Jewish terrorist attack against Arabs. Anyone think they can explain what motivates someone seemingly normal to randomly murder innocent people for the sake of land? And let's say Hamas retaliates. Is that going to stop Disengagement? No. It'll only lead to more killing, of people on both sides. These attacks, few as they are (and let's pray they remain that way) are just as morally reprehensible as Palestinian terrorist attacks.

But on a lighter note: "The Palestinian Authority issued a statement in response blaming Israel for not doing enough to prevent the attack." If the whole state thing doesn't work out, some guy in the Palestinian Authority PR office has a future in comedy.

That Pretty Ribbon You See

Thanks to Michael of The Slippery Slope's comment on Delusions of Grandeur I have been disabused of my previous notion that the blue and orange ribbon was about supporting Disengagement but sympathizing with those being forced out of their homes. In reality the ribbon is about unity during Disengagement, something the country desperately needs. For more see here.

Actually my view on Disengagement is similar to my previous and incorrect interpretation, so the question should be why I decided to put up the ribbon now. I guess it was more my problem with figuring out the HTML code involved. Amazing. I majored in computers in college and actually took a web design course and remember absolutely nothing about HTML. College is such a waste of time.

Right Out of the Palestinian Playbook

JPost reports:

"Activists here fear that a shortage of female troops will force male soldiers and police officers to drag their women away. Itiel Ariel, a rabbi from Beit Shemesh, said that "contact between men and women is such painful humiliation for the religious community that it could blow everything up." He said that only the "manhandling of religious women" could cause the more than 1,000 activists here to raise their fists at soldiers."

Isn't that the argument the Palestinians use? That "humiliation" could lead to violence? How is it humiliating for a woman to be removed by male soldiers? I understand the religious imperatives involved, but none of them justifies violence.

And there's an obvious way to avoid the whole problem. Don't make the soldiers drag you out. Living in Gaza is now illegal, as determined by the democratic processes in Israel. Since when do practitioners of civil disobedience decide who arrests them? These are the risks people run when they break the law.

I'm not saying there aren't legitimate reasons to break the law, but law-breakers cannot expect the police to kowtow to their every whim.

What a Perfect Analogy....

Butler Shaffer wrote on

"Cindy [Sheehan]’s stance is reminiscent of that of Wang Wei-lin, the young man who confronted the row of Chinese tanks in Tiananmen Square in 1989. When the human spirit stands up to the cold, faceless, dehumanizing, destructive machinery of the state, there is a release of emotional energy whose force transcends material calculation. "

Yep. It's the exact same thing. Some more evidence that the Libertarian Right can be just as delusional as the Liberal Left.

Tuesday, August 16, 2005

This is Scary II

Shanna quotes a Haaretz story about rioters who threw acid in the eyes of a police officer. Can anyone imagine what would happen if a Palestinian did that?

I've said it before and I'll say it again: treat rioting Israelis like rioting Palestinians. Tear gas, rubber bullets, whatever works. And, yes, even lethal force if necessary. Police and soldiers are not required to risk their lives so fanatics can blow off steam.

Propaganda, Propaganda, Propaganda

Ah, it's good to know the Electronic Intifada is still the premier bastion of Palestinian propaganda on the web. Take a look at a recent article by Sharif Hamadeh, a fellow working for Adalah, an Israeli Arab advocacy group.

He primarily argues that the Disengagement is just a cover for the strengthening of the Israeli presence in the West Bank and Gaza. In all honestly, that's partly true. Disengagement will allow Israel to retain a large chunk of the West Bank and Jerusalem at least until the Palestinians decide to seriously engage in a process of peaceful negotiations.

But Hamadeh's argument stems from his misunderstanding of Israeli society's attitude towards its Arab minority and its Palestinian neighbors. He believes that the Shafa'amr attack was "the fruit of the deep-seated racism cultivated by successive Israeli governments over many years." Considering how Israel completely rewrote its textbooks to better accord with the more "liberal" approach to the conflict, I am unclear about what cultivated racism to which he refers.

Put simply his argument is that Israeli society is racist against the other, has treated its Arab minority as "second or third class citizens," and must undergo a complete change in how its views its minorities if peace is to become a realistic goal.

While I do not deny there is discrimination against Israeli Arabs in Israel, I do not agree that it is ingrained into society. Hamadeh claims over 20 laws discriminating against Israeli Arabs are currently on the books, but cites none. He does mention two laws, one that refuses to compensate the Palestinians for years of military operations in Gaza, and the other which denies Palestinians who marry Israeli Arabs automatic citizenship.

The first law speaks nothing of Israeli Arabs and only refers to an occupying power not indemnifying the losing party in a war the victor did not start. I've yet to see any historical precedent for the victor repatriating the losing party after winning the war. Moreover, I've yet to see any legal basis requiring Israel to carry out such a program.

The second law is much more troubling. But it's a law based on security, not ethnicity. The law only applies to Palestinians, not every Arab. If an Israeli Arab marries a Saudi, the spouse will receive automatic citizenship. So while I'm not familiar with the legal issues involved, I do not see this law spawning from a racist world view.

Hamadeh makes some blatantly misleading claims:

1) "The demonstrators were protesting against Mr Sharon's provocative visit to the Muslim holy site of Haram ash-Sharif in Jerusalem."

He neglects to note that the same site is the holiest site in the world for Jews.

2) "Not a single individual has yet been charged for the [13] Arab deaths [by Israeli police in 2000]."

The Israeli government appointed the Or Commission to review the events, and while they did find fault in how the police acted, it did not find criminal fault on the part of any officer. Just because people were unarmed does not mean the police cannot use lethal force.

3) "Just as the wishes of the 1.4 million Palestinians living in the Gaza Strip play no part in the public debate being waged in Israel over the withdrawal, the fact that Palestinians have now become the disengagement's first victims has been lost amid a sea of blue and orange ribbons, representing the current competition between Jewish and ultra-Jewish nationalism."

Wrong on many points. Since when do noncitizens decide policy? Moreover, Israeli Arabs voted in the Knesset on the disengagement issue and were just as much a part of the decision as any other Israeli. Lastly, Israeli Arabs were not the first casualties anymore than the Israelis who were killed in Gaza last week.

4) "As UN Special Rapporteur Professor John Dugard reported in March 2005, the dismantling of Jewish settlements in Gaza does not mean that Israel will cease to be considered an occupying Power in the Strip under international law."

True, but if Israel withdraws its troops (which it will) and withdraws from the Philadelphia route, it might not have the effective control needed to constitute an occupation.

5) "Meanwhile, plans to encourage the intensive Jewish settlement of the Galilee and Negev regions within Israel, where large numbers of Palestinian citizens of Israel live, are also being pursued. "

Well, I guess once Palestinians live somewhere no Jews are allowed.

Using International Law in Constitutional Cases

A recently published article on foreign law citations in US cases is up on SSRN. Kenneth Anderson argues that the use of international law in US cases goes against the political underpinnings on which our entire political system is based. His primary argument is that foreign law is derived from a different system of government, which in the case of Western Europe eschewed popular sovereignty because it was equated with populism and the cause of so much evil. Our system is predicated on the will of people, so citations from foreign courts are interpretations of laws that are derived from distinctly different origins.

Richard Posner similarly opposes citing foreign law, in part because the problem "with citing foreign decisions in U.S. courts is that they emerge from a complex socio-historico-politico-institutional background of which our judges, I respectfully suggest, are almost entirely ignorant."

Perhaps a slightly different point which focuses on the ability of the justices to properly understand the interpretations they are citing rather than the divergent nature of the interpretation vis-a-vis our legal system. But both arguments lead to same conclusion: foreign law cannot properly be applied in our legal system because it is different. Yes, the issues facing those countries very often are part and parcel of our political and legal disputes. But the solutions they propose cannot be applied because the structural dynamics are sufficiently distinct in our country to render the conclusions of foreign judges useless. Each country has its system of law, which is based on the structure of the society from which it is derived. It's apples and oranges.

Is Genius a Strong Enough Word?

Despite not agreeing with Posner's view of the world, I remain astounded by the sheer amount of work he publishes a year. According to The Bucks Stops Here Posner wrote over 170 opinions in one year! If you think that by itself is a lot, keep in mind he published and updated four books and dozens of law review and shorter articles. Plus he has a blog. And he guest blogs and debates. And he has an extensive list of speaking arrangements.

I can't get over the total number of opinions he writes. He makes Jacob Neusner look like an amateur.

This is Scary

Crazy extremists attacked Rabbi Shlomo Aviner yesterday. Read an account here. Do these people not know he's one of the biggest supporters of the settlements and a huge opponent of disengagement? Do they not know he's the Rosh Yeshivah of Ateret Kohanim in the Muslim quarter of the Old City? I know he came out against refusing orders, but these people are serious nutjobs. Let's hope they are a small, small minority.

Monday, August 15, 2005

Stupid Subway System

I do not want this blog to become a place to rant about my personal problems, but I have to complain about the subway in NY (by the way the best system in the world). Some trains don't run all day or at night. That's fine. And usually the sign says something along the lines of "only on weekdays or only during daytime." The problem is it never defines "daytime." So I waited for 20 minutes for a train until I realized that it was no longer running. Why not just figure out the time the last train reaches the station and put it on the sign: "On weekdays until 9:26." Is that so hard or expensive?

Richard Posner and the Utility of Law and Economics

Richard Posner, appellate court judge and prominent intellectual, and Gary Becker, economist and Nobel prize winner, both posted about state sponsoring of religion here.

As is often the case, they both analyze the Establishment clause from an economic perspective.

Posner argues that religion can be subsidized if an equal subsidy is used to further secular interests. But he also agrees with Hume that subsidizing religion could lead to a decrease in overall religious practice and belief because the clergy would get satisfied and lethargic since their salaries are not based on performance and are constant. Moreover, the monopolistic nature of a state religion would decrease the variety, leading to less support for religion. For the most part Becker makes the same point, that competition allows religious movements to grow and government subsidies would create a monopoly, which would stunt the introduction of religious ideas into the public arena.

Posner ends with empirical evidence that shows that states with an established religion have less religious citizens.

As usual Posner's analysis focuses exclusively on the economic arena (economic defined very broadly), but ignores the moral issues. Posner's preeminent work has been on Law and Economics, which is the discipline of using the law to achieve the most efficient outcome, efficient defined based on greatest satisfaction for the greatest number. This is a simplistic analysis and for more see here.

Posner ignores the moral aspects of establishment. The two areas of societal structure are fairly distinct. For example, let's assume the government passed a law barring women from becoming lawyers. There are at least two ways of evaluating the law:

We could say the law is morally wrong. Perhaps it's unjust to bar a person from a profession solely based on gender because it violates the basic tenets of fairness and equality. This analysis ignores the efficiency of the law and is not subject to empirical proof either way.

We could also say the law is inefficient and therefore challenge its utility. Barring half the population would lead to the less efficient result of having less qualified lawyers. Allowing women to become lawyers would generate better lawyers because its logical to assume that some women are better than some men at law (after spending a year in law school I can personally testify to this fact). So its inefficient to deny women a legal profession.

This analysis is subject to empirical study. We could do research to determine if some women really are better than some men. If not, the law might be justified on those grounds.

Law and Economics only tries to shape society based on the second method. That's the primary flaw of Law and Economics. The moral issue cannot play an important role. Posner, though, will sometimes make arguments that try to include moral issues. For example, he probably would argue that denying women legal employment would decrease their happiness, therefore leading to a less efficient society given the diminished satisfaction of half the population. But in reality, while that argument does try to integrate morality into the equation, it cannot properly do so. Perhaps he can grant it more weight, by arguing that the diminished happiness is sufficient to outweigh the benefit of having better lawyers. But that's hard to really say. The moral question does not properly lend itself to equations.

Do not take this as an argument against balancing rights, which every government must do and every citizen should support. But unless someone can figure out a way to properly integrate moral questions into economic equations, Posner's arguments are lacking and always will.

Oh well never got around to the Establishment question. Maybe next time.

Keep Building the Fence

One advantage of disengagement is that it diverts world attention from continued building of the fence in the West Bank. I happen to agree with David Makovsky that the fence should include about 15% of the West Bank, leaving about 85%, give or take a few land swaps, for the final agreement.

The Palestinians were offered a phenomenal deal at Taba, which included 97% of the WB (close to 100% including swaps), all of Gaza, the Arab neighborhoods in Jerusalem, horizontal sovereignty over the Temple Mount (actually Israel offered complete sovereignty with recognition that the area is holy to Jews, which the Palestinian rejected), and a family reunification plan. After a violent rejection that lead to the death of thousands, they cannot expect to get the same offer again.

So leaving Gaza lets us keep more of the West Bank. Isn't that itself a good enough reason to withdraw?

Sunday, August 14, 2005

Treat Gaza Settlers Like Adults

That's the title of a Hillel Halkin article from December 2004. His basic thesis is that instead of forcing the settlers to leave, Israel should just give them a date and pull out. The settlers who want to stay can bear the consequences, while the rest will leave on their own. We avoid Jew against Jew bloodshed and minimize the risks facing the soldiers.

A little after the article was published I argued on AOL's Israeli Politics board in support of this position. Most supporters of disengagement disagreed, arguing that it's worse for Israel to allow Jews to be slaughtered by Palestinians than to go in and force those people out. One poster posited that Israel cannot allow Israeli children to be placed in harm, so Israel has to remove the children, and then might as well remove the adults as well at that point. I disagreed based on the assumption that parents can choose to give up their children's nationality, and the settlers who stay would be giving up Israeli citizenship for themselves and their children. Israel has no obligation to save non-Israeli children, even if they happen to be Jewish.

The primary benefit of just getting out – let's call this Plan A – is avoiding today's chaos. Is it sensible for Israeli troops to put their health and lives on the line for the sake of holdouts? It is worth the chasm that could divide our society, pit Jew against Jew? Doesn't Israel have enough divisions (Jew vs. Arab, religious vs. secular, etc.)?

Moreover, Plan A would allow Israel to deploy its troops where they are needed: in defense against Palestinian terrorism.

It would avoid the dilemma that many soldiers must be facing. Do they remove Jews from their homes?

The negatives are self-evident. At least some of the settlers would remain. Can Israel really stand on the sidelines and watch Hamas slaughter Jewish children? Letting that happen could pose an existential threat equally as great as the Jew v. Jew confrontation.

And the soldiers' dilemma moves from deciding whether to evacuate Jews to whether to stand by and watch Jews be murdered. Not any better.

For any benefit of Plan A, there's an equal cost. It's the same with forcing the settlers out – Plan B. So which plan makes more sense?

Halkin makes a good point. If we follow Plan A there's no guarantee that the Palestinians will slaughter them. Perhaps Abbas will be pressured to protect them. Maybe he'll have no choice but to evacuate them into Israel. Or maybe he'll work something out with them.

It's also not a given that settlers will stay. It's more than likely that faced with a real threat they might realize that they can't win. But if they do stay, Israel could go in and evacuate them, a far smaller number. Less risk to the soldiers.

The primary difference between the plans is that Plan A involves certain problems. Plan B creates potential problems. Faced with absolute difficulties vs. possible (probable) hardships, the smart money is on taking the risk.

And So It Begins....

As of 5 PM NY time (Midnight in Israel) it became illegal for an Israeli to live in Gaza. The Kissufim crossing was closed and no Israeli, even one who lives in Gaza, was allowed to enter. And right on schedule, the two most feared outcomes became reality: Palestinians fired mortars on Kfar Darom and Israeli teens attacked an army jeep.

Settler leaders are promoting non-violence in their response to the soldiers coming to evict them. Palestinians are deploying security forces to prevent Palestinians from rushing the settlements (which begs another question: Where have these security forces been the last few years? For a different post I guess).

What we have here are two groups with divergent, and yet similar, interests. The Palestinians want to spin this withdrawal as a sign of victory and as proof that violence was the only means to force Israel to "surrender." This logic was used subsequent to Israel's withdrawal from Lebanon (strategically a smart move, but carried out in the worst possible way) as a way to motivate the people to use violence against Israel. Of course, that violence failed. Arafat is dead. The Intifada brought them no tangible benefits, but left their society in economic, moral, and political ruins. Yes, Israel is leaving, but that's Israel's decision on its own terms and for its own reasons. Not because Palestinian mortars are crashing down on Kfar Darom.

But Israel cannot allow disengagement to become a rallying point, like Southern Lebanon. The Palestinians were able to use it because Israel literally scurried away in the middle of the night without even the most basic coordination with its allies. Israel looked scared and cowardly. Withdrawing under fire in Gaza will create the same image; and that's not something Israel can afford.

The PA must stop the shellings, at least until Israel leaves. If it cannot stop simple mortars from being fired, how can it be expected to run a country? The future does not look bright if I'm a Palestinian. But if the PA cannot or will not respond, Israel must use whatever methods are available at its disposal to stop the attacks, or at least it must make it clear that Israel is leaving in a position of strength, not weakness. Force cannot lead to a solution.

On the other hand, we have the extremist settlers.

There are some people who believe that attacking soldiers will make them think twice before coming into the settlements for the evacuation. At least, that's the only rational motive I can ascribe to these lunatics. For a while I supported withdrawing the soldiers and letting the remaining settlers fend for themselves. I still believe that, though not as strongly, but it's people like this (note the part about the rioters trying to attack Rabbi Aviner) who make me want the IDF to close off the border and let Hamas and the extremist settlers fight it out.

The IDF must make it clear that violence cannot work. Anyone attacking a soldier should be treated with force, deadly force if the circumstances require it. No soldier should risk his/her life because the fanatics need to "strut their stuff." Violence cannot be allowed to stop the disengagement. Force cannot lead to a solution.

Thursday, August 11, 2005

International Law and the Territories

In case I decide to blog about whether Israel's actions are in accordance with international law, I've decided to lay out the basic facts. I'll try to keep it brief and simple, so if I leave something out that's to be expected. Moreover, it's been a few years since I really used to follow this stuff, so I'll be working from memory and old papers on my computer. Bear with me. Also, none of this information is mine and I will try to cite where appropriate.

The basic structure of international law is laid out in Article 38(1) of the Statute of the International Court of Justice, which lists the four sources of international law:

1) International conventions
2) international custom, as evidenced by general practice
3) The general principles of law recognized by civilized nations
4) The opinions of the highly regarded scholars of international law.

International law in relation to the territories

Israel has signed both the Hague Convention of 1907 and the Fourth Geneva Convention of 1949. Both these conventions govern the responsibilities of the occupying power in relation to the occupied people.

The application of these conventions to the West Bank and Gaza is a matter of dispute. In the famous Beth-El case the Israeli Supreme Court ruled that the Hague Conventions constitute international custom and are binding on the military government. The Court, however, has consistently refused to apply the Geneva Conventions to the territories.

The official Israeli government position is that the Geneva Conventions do not apply because the wording of the convention itself presupposes the existence of a sovereign reversioner, a country from which the territory was captured. This argument is best laid out by Meir Shamgar, who was the Chief Justice of Israel's Supreme Court in the early 90's, and Yehuda Blum, who served as Israel's UN ambassodor in the 80s. Shamgar, serving as Attorney-General in 1968, formulated Israel's position vis-a-vis the Genenva Conventions, while Blum argued Israel's position as to its status in the territories.

Is Israel an Occupying Power?

The short answer is technically no. To be an occupier, there must be a country from which Israel took the West Bank and Gaza. Egypt admitted it did not have sovereign rights over Gaza; Jordan annexed the West Bank (hence the name "West Bank"), but Jordan's acquisition stemmed from aggressive war and every legal scholars admits that land cannot be captured in aggressive war. So there was no "sovereign reversioner."

Could the Palestinians constitute the sovereign reversioner? Doubtful. They never had sovereignty over either the WB or Gaza and Israel did not capture the land in a war with them. The Palestinians were never parties to the Six Day War in a legal sense. Since the Hague Conventions require that for a land to be occupied it must be "placed under the authority of the hostile army" (Article 42), a belligerent occupation can only stem from a war between two warring countries. Such is not the case between Israel and the Palestinians.

There are other arguments, but I want to keep this post short.

The Geneva Conventions

Article 2 of the Geneva Conventions lay out when the conventions apply. Article 2(2) states

"The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. "

Article 2(1) speaks of the conventions application during the actual conflict. When the conflict ends, the conventions only applies if the occupation is of the territory of a high contracting power. While Jordan and Egypt were both high contracting parties, the territory captured did not belong to them. Since the application of the conventions is conditioned on the territory occupied being the sovereign property of the high contracting parties, and Jordan and Egypt did not fulfill this condition, it follows that the conventions do not apply.

This analysis is bare, but for simplicity's sake I'm going to leave it off here.

Israel and Jim Crow

DovBear over at "the only blog you'll ever need" argued today that Israel has turned the territories into Birmingham, Alabama circa 1955. The settlers are doing teshuva (repentance) for decades of unjustness against the Palestinians.

Does Israel compare to the South of Martin Luther King Jr.? Of course not. Israel took control of these territories through an uninvited war. The population was, and still is, hostile. Should Israel have just granted them political and social rights on par with Israeli citizens? Of course not. No country would grant a hostile population control over its political infrastructure vis-a-vis elections. No country would give them unlimited access through its borders. And no country would allow the hostile population to live in close proximity with its citizens. A war is a war, and countries have to take basic measures to protect its citizens.

Moreover, Israel has done much more than required. Palestinians have access to Israel's civilian court system, something not required by international law. Israel has built roads (bypass roads were a product of Oslo and did not exist before 1990), hospitals and universities. Before 1967, there was not a single four year university in the territories. Now there are at least four. The reality is that Israel has increased the standard of living over that which the Palestinians enjoyed under Jordanian and certainly Egyptian rule.

I'm not going to pretend the Palestinians have it great. But they were part of a war that Israel had to fight. They still refuse to make peace under reasonable conditions. Israel has no choice but to consider them the enemy and treat them as such.

On Disengagement

Haaretz is counting down the number of days until disengagement. And anyone who reads Haaretz knows they support disengagement. So where do I stand on the topic?

I look at it this way: At some point we'll have to withdraw from Gaza. The demographic realities will make Jews a minority in the land between the Jordan River and the Mediterranean Sea in a few years (some say it's already happened). And when that happens we can expect the Palestinians to start demanding some version of the "one person, one vote" system that worked in South Africa. So unless Israel wishes to become an apartheid state, withdrawal is a necessity.

Opponents of withdrawal have yet to come up with an alternative. They voice the negatives of disengagement (there are many), but cannot propose a legitimate choice for Israeli society. The extremists on the right propose expulsion. The regular Israeli will not countenance to such an injustice (never mind the practical aspects of the plan are not feasible). The extremists on the left support a bi-national state, or a "state of all its citizens." Most Israelis are not ready to admit the Zionist project has failed. So what are we left with? Apartheid? Perpetual occupation? Not attractive options.

The question then is whether withdrawal is better than the status quo. And and in that regard I have to say yes. An apartheid Israel will be isolated economically and politically. Are Jews safer that way? Is a country in better shape when it lacks support? Is the devastation of its economy worth Gaza? Is the moral drag on the society worth bug-free lettuce? I don't believe so.

So withdrawal is a must. But is withdrawal right now the smartest move? I don't know. I see the strong security arguments, that withdrawal will embolden the terrorists to continue their terror war, that Abbas will not or cannot stop Hamas from taking over, that Quassams will be landing in Ashkelon, etc. These are powerful arguments. I do not have faith in Abbas, but I do have faith in Sharon. He is Israel's best general, and a man who fought for Israel his entire life. If he believes it'll help the security situation, I'm willing to trust him.

However, I do feel for the people being moved. But they are going to be given large sums of money, the option of moving as a community, and the emotional support that comes from hundreds of thousands of people supporting one's plight. Countries must make sacrifices and it has to be them.

Wednesday, August 10, 2005

On The Supreme Court

I've never had a summer this long, and it's getting kind of boring. So despite not having posted anything in a while I figured I'd give it a shot.

About a month ago, President Bush chose John Roberts to replace the recently retired Sandra Day O'Connor. I have mixed feelings about O'Connor's tenure on the Court, and her so-called pragmatism, but she was a federalist and for the most part interpreted the Constitution in accordance with the dichotomy set out by Article 1 and the 10th Amendment.

It's hard to get a feel on Robert's positions, because he's only been a judge for two years and because those decisions were probably written with a confirmation fight on his mind. But all the standard opinions seem to indicate he's in the Rehnquist mold. That means we should get a fairly originalist and conservative justice.

Will Roberts be a good justice? I don't know but I expect him to be as federalist as O'Connor, and hopefully more in tune with the Constitution on issues such as abortion, gay rights, and religion. I don't see him being the next David Souter. And given NARAL's obscene ad opposing his confirmation, how could I not support him?