May 26, 2004

Israel and the Question of the National State (Ran Halévi, April 2004, Policy Review)

The idea of a binational state has repeatedly reared its head throughout the Arab-Israeli conflict. It was already circulating, in various guises, during the 1920s and 30s among the Brit Shalom (“The Alliance for Peace”) group, led by Martin Buber and Gershom Scholem, before falling victim to military confrontation. It surfaced in the wake of the Six-Day War, this time under the auspices of the plo, which demanded the dissolution of the “Zionist entity” for the sake of what the official euphemism called “a secular and democratic Palestinian state” where there would be no place for Jews who arrived in Israel after 1948. It was also embraced by some figures of the American literary left. With the signing of the Oslo Accords, it seemed to have vanished for good. But the second Intifada infused it with new life: The resurrection of the binational project is one of the many consequences of the dramatic fiasco at the Camp David negotiations during the summer of 2000.

Today, however, it is not within the Palestinian camp that the idea is most audible, but in the margins of the political debate in Israel and . . . in the writing of Tony Judt (see Israel: The Alternative, New York Review of Books, October 22, 2003), who adorns it with the attire of novelty and the noble allure of the “unthinkable.” It is odd to see this epithet attached to an idea that is almost a hundred years old and which has never ceased to be “thought,” despite never having been applied. Here it is back on the agenda. […]

Several months before his article appeared, in August 2003, the readers of the Israeli newspaper Haaretz had the binational project explained to them by two respected figures of the Israeli left. One of them, Meron Benvenisti, once deputy mayor of Jerusalem responsible for relations with the local Arab population, is one of the men who has toiled most to bring about a reconciliation between Israelis and Palestinians. An engaging, passionate personality with deep family roots in the Zionist movement, it isn’t as if Benvenisti, at the age of 70, had turned into a furious ideologue who favored the disintegration of Israel.

His reflection proceeded from three fundamental observations. The first is that the development of settlements in the West Bank has created an irreversible trend that precludes a return to the situation before 1967. Mr. Benvenisti has been predicting this since the 1980s. At that time, however, the settlements amounted to barely 20,000 persons; today the estimate is 230,000. And that which to him seemed impossible 20 years ago is all the more so today.

From this observation flows a second one: The irreversible situation produced by the extension of the settlements has already created a binational reality which any political solution should take into account. All the more so, given a third observation: that the debacle at Camp David and the bloody confrontations that almost immediately followed have tragically brought Israelis and Palestinians back to their attitudes of 50 years ago, thus consuming all avenues of compromise which they believed they were so close to achieving: “Both sides have in fact given up their mutual recognition, when we have begun again to consider the Palestinians as a terrorist entity, and they to look at us as aliens.” In this respect, Mr. Benvenisti shows himself almost as hard on the Israeli left as on the right: “This whole problem of the Arabs annoys the people on the left, is too complicated for them, exposes them to a moral dilemma and a cultural embarrassment: this is why they want this horrible wall . . . which is a violation of this land, why they flee Jerusalem, why they flee the countryside and the landscape to crowd together in Tel Aviv.”

In this disenchanting picture, the dominant, decisive fact that prescribes, so to speak, the future is the demographic element: The entanglement of Jewish and Arab populations on the territory that extends from the Jordan river to the Mediterranean renders literally inapplicable the creation of two distinct national states, says Mr. Benvenisti. “Since Zionism excluded the idea of eliminating the Arabs, its dream has become unrealizable. For this land cannot accommodate two sovereignties within it, and will never be able to do so.”

In other words, a binational reality prescribes a binational solution. Between the 3.5 million Palestinians who live in the West Bank and Gaza, the 1.2 million Israeli Arabs, and the some 5 million Jewish Israelis, it is thus necessary to imagine a new framework of cohabitation. Mr. Benvenisti envisages a structure that is both federal and cantonal — he speaks of “ethnic cantons” — where each people could lead an autonomous existence. The plan, he admits, is still embryonic and nebulous, but the general direction seems clear. “What I propose doesn’t make me rejoice. . . . I cling to the fragile hope that, perhaps, a common purpose may emerge . . .; that we will learn perhaps to live together; that we will understand perhaps that the other is not the devil.”[…]

Besides being “bad for the Jews,” Mr. Judt explains, Israel represents an historical anachronism, founded, what is more, on an original injustice. Several nation-states rose from the ashes of the old empires on the eve of World War i, and their very first action was “to set about privileging their national, ‘ethnic’ majority . . . at the expense of inconvenient local minorities, who were consigned to second-class status.” The creation of the state of Israel not only reproduced this offense, but posed the additional difficulty of having arrived “too late” in a world where borders are open, democracies are pluralist, and there are multiple “elective identities.” This late-blooming nation-state thus embodies the double sin, according to Tony Judt, of both injustice and anachronism.

The legitimacy of the Zionist enterprise was, we know, contested from the outset. But when it comes to legitimacy, it is not ideological posturing but history that is the final judge. The history of Israel’s creation, which is still being written, has not yet produced its moral balance sheet — and thus is incommensurate with the experience of nation-states whose security has been established for centuries. Tony Judt does not contest the legitimacy of the French nation on account of the Frankish invasions, or that of England by stigmatizing the armed expedition of William the Conqueror. But he haggles over Israel’s legitimacy for its supposedly anachronistic character. As Mark Lilla recently noted, as if replying to Judt in anticipation, “all political foundings, without exception, are morally ambiguous enterprises, and Israel has not escaped these ambiguities. Two kinds of fools or bigots refuse to see this: those who deny or explain away the Palestinian suffering caused by Israel’s founding, and those who treat that suffering as the unprecedented consequence of a uniquely sinister ideology.” […]

[H]ere are two living examples, America and Israel, where democracy, the nation, and the sovereign state are closely linked. And if so many Europeans today have a hard time acknowledging this “incongruity,” and a harder time still putting up with it, this is because they tend increasingly to detach democracy from the nation and to persuade themselves, against all the evidence, that democracy does not need either the nation or the state in order to flourish.

The wars of the twentieth century have fatally brought the nation into disrepute, and this process has only grown further with European integration. We do not cherish the nation anymore, but we are unable to abandon it because we do not know how and with what to adequately replace it. Political philosophy does not provide us with any practical alternative: neither the tribe, nor the empire, nor the city. Even Europe disconcerts us: It has taken only one plenary session of the Council, enlarged to 25 states — only one! — to make us discover, belatedly, that the European machine cannot offer an adequate substitute for our disaffection with the nation. But this disaffection remains so deeply rooted that many Europeans are less and less inclined to understand those nation-states which are not afflicted by our doubts, and still less to tolerate the use these states make of their monopoly on legitimate force. The detestation of George W. Bush or of Ariel Sharon does not confine itself to what in their policies could be seen as reprehensible — and God knows they may be, in certain respects. Rather it is combined with a sentiment of alienation and frustration in the presence of such fully assumed expressions of national sovereignty — this still-vital constellation of the nation-state and democracy, which so many of us are inclined to disconnect and even to oppose.

Israel offers a mirror, an exemplary case in which we can contemplate and realize vicariously our schizophrenic relationship towards the national question. It is no accident that the more virulent critics, who often happen to be those of the United States as well, are to be found in the ranks of the antiglobalization movement. The type of postnational nihilism they inscribed on their banner contributed to the depoliticization of their approach to politics in general and the Middle East in particular: Israel, in other words, is that nation-state which most immediately vexes their planetary humanism.

Beyond the important distinction it draws about America’s enduring devotion to the idea of the nation, this essay gets back to last week’s discussion of how the Left/peace movement is basically anti-Zionist.

-The End of Zionism?: The ideology that built the State of Israel has given way to a Post-Zionism that sanctifies Jewish disempowerment. (Yoram Hazony, Summer 1996, Azure)



May 15, 2004

Execution of Mexican Is Halted (ADAM LIPTAK, 5/14/04)

In the first case to put in effect a sweeping ruling by an international court in the Netherlands concerning Mexicans on death row here, an Oklahoma appeals court yesterday halted the execution of one of those inmates, Osbaldo Torres. He had been scheduled to be executed on Tuesday.

Hours later, Gov. Brad Henry commuted Mr. Torres’s death sentence to life without parole.

The court and the governor cited the decision six weeks ago of the International Court of Justice in The Hague and noted that Mr. Torres’s right to contact Mexican officials under the Vienna Convention on Consular Relations had been violated.

The international court ruled in April that 51 Mexicans on death row in the United States must be given fresh opportunities to argue that they were harmed by such violations.

The Oklahoma Court of Criminal Appeals, the state’s highest court for criminal matters, yesterday ordered just that, holding that Mr. Torres was entitled to a new hearing.

The commutation is certainly up to the governor, but for American courts to accept this ruling as binding is outrageous. Congress and the President should act quickly to either clarify or break any such treaty obligation.


May 14, 2004

THE PERILS OF TORTURING SUSPECTED TERRORISTS: Does the use of coercive interrogation techniques lead inevitably to abuses such as those committed at the Abu Ghraib prison in Iraq? (Stuart Taylor Jr., June 2004, Atlantic Monthly)

How can we get potentially lifesaving information from suspected terrorists without trashing human rights and staining our souls? Is torture ever morally justifiable? Is it ever legal? Should it be legal? What about less extreme forms of coercive interrogation, which range from polite but persistent questioning to covering prisoners’ heads with black hoods, keeping them naked in cold, damp cells, depriving them of sleep, denying them adequate food, forcing them into uncomfortable “stress” positions, and threatening to kill them or their families? Does the use of such coercive interrogation techniques—which the Pentagon appears to have authorized in at least some contexts—lead inevitably to crimes such as those at Abu Ghraib?

Here are some proposed answers.

* Torture may be justified in rare, mostly hypothetical cases. It is tempting to say that torture is always wrong, period. Beating prisoners unconscious, breaking their bones, burning them with hot irons, shocking them with cattle prods, pulling out their fingernails, or similar practices are viscerally horrifying to civilized people and condemned by the moral codes of all civilized societies.

But what about the “ticking-bomb” hypothetical used by law professors to confound their students: If the government captures a Qaeda terrorist known to have planted a bomb timed to explode in a crowded area within three hours, would it not be justifiable to try to do whatever it takes to get the location out of him?

And what about Qaeda leaders such as Khalid Shaikh Mohammed, who appears to have directed the 9/11 attacks and who knew of many planned attacks at the time of his capture last year? Such cases “pose one of the strongest arguments in modern times for the use of torture,” Mark Bowden wrote in The Atlantic Monthly last October, because “getting at the information they possess could allow us to thwart major attacks, unravel their organization, and save thousands of lives.”

And what about the Qaeda member caught by Philippine intelligence agents in 1995 in a Manila bomb factory? Defiant through 67 days of savage torture—most of his ribs broken, cigarettes burned into his private parts —he finally cracked when threatened (falsely) with being turned over to Israel’s Mossad. And he revealed the so-called “Bojinka” plot to crash 11 U.S. airliners and 4,000 passengers into the Pacific, to fly a private Cessna full of explosives into the CIA’s headquarters, and to assassinate Pope John Paul II.

* Even so, torture is almost never justifiable in real life. There are at least three reasons. First, it will rarely if ever be knowable in advance that torturing a particular suspect is likely to save innocent lives. Many suspects have no information of great value. Even leaders such as Shaikh Mohammed may have only stale information, or may not break, or may concoct false leads, or may be more susceptible to less brutal interrogation techniques designed to create a sense of dependency and trust.

Second, official approval of torturing a few especially “high-value” suspects would lead in practice to the torture of dozens or hundreds of others—including innocent civilians mistakenly suspected of terrorism—while unleashing the most sadistic impulses of those involved. The horrors of Abu Ghraib were openly celebrated by the perpetrators despite clear criminal prohibitions. Imagine what would happen without such prohibitions.

Third, using torture might well cost many more American lives than it would save, by feeding the rage of those who see Americans as sadistic, hypocritical, anti-Muslim imperialists and thus driving more recruits into the terrorist murder brigades—as the Abu Ghraib barbarities have surely done.

* Torture is always illegal, and should be. Both federal and international law are crystal clear in banning any and all use of torture—including torture of terrorists—although the law is unavoidably ambiguous in defining torture. The United Nations Convention Against Torture, which the Senate ratified in 1994, with Congress providing criminal penalties for violators, bans intentional infliction of “severe pain or suffering, whether physical or mental.” Military law contains similar prohibitions. And President Bush pledged in June 2003 to lead the world in “prohibiting, investigating, and prosecuting all acts of torture,” although, after Abu Ghraib, his words have a hollow ring.

Should the law recognize an exception for cases involving ticking bombs or terrorist kingpins such as Shaikh Mohammed? No, because there is no tolerable way to finish this sentence: “Torture is prohibited except when … ” That’s why Israel’s Supreme Court, which has wrestled long and hard with the moral quandaries at the intersection of terrorism and torture, has banned all forms of torture, including the violent shaking of captives. At the same time, the Israeli court has condoned other types of coercive interrogation and has suggested that there might be an “emergency conditions” defense for any cases in which security personnel honestly believed that illegal use of force was the only way to prevent imminent terrorist murders.

The best way to minimize the conflict between the need for aggressive interrogation and the prohibitions of human-rights law may be to define “torture” narrowly enough on a case-by-case basis to leave considerable leeway for tough, coercive interrogation short of excessive brutality.

Perhaps it’s better to just be honest with ourselves and acknowledge that — particularly since we have no compunction about killing such suspects while trying to capture them and executing them afterwards — torture is an unfortunate but useful means of eliciting valuable information during wartime.