Wednesday, September 16, 2015


Benjamin Netanyahu's Most Important Task

Israeli Prime Minister Benjamin Netanyahu's place in history will be determined mainly by one thing: whether or not he prevents Iran from using a nuclear weapon to cripple or destroy the Jewish State. A national government has many responsibilities but the foremost responsibility is to preserve the safety of its citizens, for otherwise the national government has no reason to exist (and, upon failing to keep that responsibility, the national government would cease to exist). For her entire existence, Israel has been besieged by enemies who have sworn to destroy her. Many Israeli Prime Ministers have had to make fateful decisions in moments of crisis. In 1981, Menachem Begin took the bold step of disabling Iraq's nuclear program; Begin had survived the Holocaust and he correctly recognized that his most important duty was to make sure that nothing like the Holocaust ever happened again. Israel's preemptive strike against the Osirak facility was roundly condemned at the time but greatly appreciated a decade later during the first Gulf War.

Netanyahu is no Begin and it is not at all clear that he is up to the task of doing whatever is necessary to ensure Israel's survival. Netanyahu already has plenty of Jewish blood on his hands from his first term as Prime Minister, including 10 month old Shalhevet Pass, who was shot and killed on March 26, 2001 by a PLO sniper operating from the very Hebron hills that Netanyahu foolishly surrendered to PLO enemies who have sworn to kill Jews and destroy the Jewish State.

Forget that the land that Netanyahu gave away is part of the ancient Jewish State. Forget even that the land is part of the Palestine Mandate that was supposed to be part of the modern Jewish State but was instead partitioned by the British and then illegally annexed by Jordan during Israel's War of Independence. Simply remember that the land was used by Jordan in a war of aggression against Israel in the Six Day War in 1967. Israel is under no legal or moral obligation to cede control of that territory to anyone, let alone a terrorist group founded three years before the Six Day War with a charter focused not on "liberating" Palestine but rather on destroying Israel (yes, the territories the PLO purportedly seeks to "liberate" were not controlled by Israel when the PLO was formed).

Thus, the cowardly precedent that Netanyahu set during his first term as Prime Minister hardly inspires confidence that he will stand up to Iran's military and negative public opinion from various quarters in order to prevent Iran from building nuclear weapons, which is all but inevitable in the wake of the proposed agreement between the United States and Iran.

Caroline Glick optimistically believes that President Obama's disastrous deal with Iran could yet turn into a glorious defeat for Israel:

Last week's publication of audio recordings of former defense minister Ehud Barak discussing of Iran's nuclear program revealed that for the past several years, Israel's military and intelligence brass have blocked operations against Iran's nuclear installations three times. In 2010, 2011 and 2012 the IDF chief of General Staff and senior generals supported by hesitant cabinet members refused to carry out instructions they received from Netanyahu and Barak to prepare to carry out such a strike.

There is no doubt that one of the main reasons they opposed lawful instructions was their faith in Obama's security pledges...

Had Netanyahu kept his criticism of Obama's decision to give Iran a free hand to develop nuclear weapons quiet, the generals might have shrugged their shoulders and expressed gratitude for the shiny new weapons Obama will throw at them to "compensate" for giving nukes to a regime sworn to annihilate the country.

By making his opposition public, Netanyahu alerted the nation to the dangers. The top commanders can no longer pretend that US security guarantees are credible. Now they will be forced to kick their psychological addiction to worthless American security guarantees, accept reality and act accordingly.

Better eight years late than never.

The Americans weren't the only ones paying attention to Israel's fight. Israel's Arab neighbors also saw how Netanyahu and Ambassador to the US Ron Dermer left no stone unturned in their efforts to convince Democratic lawmakers to oppose it. And the regional implications are already becoming clear.

As the Saudis' willingness to stand with Israel in public to oppose this deal has shown, our neighbors have been deeply impressed by the diplomatic courage Israel has shown. If and when Israel strikes Iran's nuclear installations, our willingness to openly oppose the administration will weigh in our favor. It will impact our neighbors' willingness to cooperate in action aimed at removing Iran's nuclear sword from their necks and ours...

Obama's success will backfire first and foremost because thanks to Netanyahu's move to spearhead the public debate in the US, today two-thirds of Americans oppose the deal. Since Iran will waste no time proving just how devastating a mistake Obama and his fellow Democrats have just made, Obama's success makes him far less free to enact further steps against Israel than he was before the deal was concluded. The public no longer will give him the benefit of the doubt.

Moreover, since the deal is as bad as its opponents say it is, and given that most Americans oppose it, Obama's successor will face no impediments in canceling the deal and adopting a new policy towards Israel and Iran.

Hopefully Glick's analysis will be proven correct but it is disconcerting and alarming that on three occasions Netanyahu gave orders to destroy Iran's nuclear program only to see those orders disregarded. Since when do the inmates run the asylum? If that report is true, those generals should have been fired and put on trial for treason. Generals enact policy but they do not create it. What those generals did is the equivalent of a coup d'etat and, contrary to Glick's take on the situation, this suggests that Netanyahu talks a good game but lacks the power to put his ideology into action in a meaningful way. What kind of leader is disobeyed three times by his generals and takes no action?

Netanyahu is deluded if he is counting on meaningful help from the Saudis or any other Arab country. The Saudis may privately cheer if Israel destroys Iran's nuclear program but the Saudis will not help Israel to do so and the Saudis will publicly condemn Israel's "aggression" if Israel uses military force against any Arab or Muslim country, even if that country is an enemy of the Saudis.

Let no one misunderstand what is at stake here. Just like Adolf Hitler announced his program of genocide against the Jewish people very clearly in Mein Kampf, it is documented well past the point that any reasonable person could doubt that the destruction of Israel is a central policy goal of Iran:

The 1948 Genocide Convention lists incitement to commit genocide as a war crime. Much of the Iranian language regarding Israel can certainly be legally defined this way.

A common motif of incitement to genocide is the dehumanization of the target population. The Nazi weekly Der Stürmer portrayed Jews as parasites and locusts. In the early 1990s in Rwanda, Hutu propaganda described the Tutsis as "cockroaches." Before Saddam Hussein's operations against the Iraqi Shia population in 1991, his Baath Party newspaper characterized them as "monkey-faced people." Similarly, former President Ahmadinejad has called Israeli Jews "cattle," "blood-thirsty barbarians," and "criminals," while Iranian state-owned websites have explained why the destruction of Israel and the slaughter of its population would be justified. Dehumanization has also appeared in other forms, such as demonization, in which the target population is labeled "Satanic"--a theme repeatedly used by Iranian leaders to describe Israel.

In fact, according to Prof. Gregory Gordon, who served as a legal officer for the first post-Nuremberg prosecutions for incitement to genocide at the International Criminal Tribunal for Rwanda, Iranian calls for Israel to be wiped off the map are "even more direct than much of the language from the Rwandan cases."

The following summary of Iranian leaders' anti-Israel statements from 2013 demonstrates the consistency of the regime's rhetoric, the clarity of its intentions, and the certainty of its beliefs. On top of all this, the statements serve as a reminder of the nature of a regime that is pursuing a nuclear weapons capability.

It is worth reading that article in its entirety to see all of the quotes--in English translation and in the original Persian--but here is a typical one from the Iranian Ministry of Defense: "If once the destruction and demise of occupying Israel was an impossible and unobtainable dream, today thanks to the historic and intelligent actions of Imam Khomeini, it has become possible and is actually in the process of occurring."

Iran intends to build nuclear weapons and it intends to use those weapons to destroy Israel, even at the cost of Muslim lives. Netanyahu's failure to protect Jewish babies from being intentionally targeted by Arab snipers is tragic but pales in comparison to what will happen if he is disobeyed by his generals for a fourth time. Nearly 40 years ago, Netanyahu's brother Yoni lost his life while leading a mission to rescue Jews from a hijacked airplane thousands of miles from Israel.
Back then, Israel understood her duty and her responsibility and acted with energy and courage. Now, with the stakes infinitely higher, Netanyahu must not fail.

Those who think that these words are hyperbolic or should only be of concern to Jews ought to recall the path that Hitler took. Hitler signed treaties with England and with Russia when it suited him and then he broke those treaties when it suited him. He initiated genocide against the Jewish people while the world reacted with indifference, at best--but Hitler's ultimate goal was not just to destroy the Jewish people but to conquer the world. Similarly, Iran's plan involves not just the destruction of Israel but a world-wide jihad. Iran's words and deeds should be taken seriously not just by Israel but by the entire world.

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Saturday, August 8, 2015


Yeats' Warning About the "Passionate Intensity" of True Believers

In his poem "The Second Coming," William Butler Yeats warned, "The best lack all conviction, while the worst/Are full of passionate intensity." The sad profundity of this couplet is regularly on display in our troubled world, perhaps best encapsulated in Hamas' warning to Israel, "We love death more than you love life." The Hamas true believers are so passionate about their cause--the annihilation of the Jewish State as a prelude to making the non-Muslim world submit to Islam--that they are not only willing but eager to kill and be killed for it; meanwhile, after every outrage committed by Hamas--and by other terrorist groups--there is a vocal segment of the Western world that responds by asking, "How have we wronged these people?" Blaming the victim is neither a sound psychological approach nor the basis for a strong foreign policy. The sane response to extremist, uncompromising genocidal murderers is to do anything possible to stop them, as the West belatedly figured out regarding Nazi Germany.

In A Poet's Apocalyptic Vision, David Lehman describes how Yeats' poem is a "chilling statement of our condition" that "extrapolates a fearful vision from the moral anarchy of the present." Lehman adds that Yeats' powerful couplet "retains its authority as an observation and a warning. We may think of the absence of backbone with which certain right-minded individuals met the threats of National Socialism in the 1930s and of Islamist terrorism in the new century. Both dogmas demand of their followers a 'passionate intensity' capable of overwhelming all other considerations."

Perhaps the fastest way to offend someone in our world dominated by "political correctness" is to speak truth to power. Many people do not want to hear the truth, especially if the truth contradicts their deeply held beliefs. For instance, while it is sometimes true that there are two sides to a story it is also sometimes true that one side is simply right and the other side is simply wrong. It is not politically correct to speak of good and evil anymore but that does not mean that there is no such thing as good and evil.

The 9/11 attacks did not happen because of America's foreign policy decisions (which is not to say that all of those decision are beyond reproach) and those attacks were not the desperate but understandable actions of downtrodden people. The truth is that the 9/11 attacks were acts of unspeakable evil committed in the name of a backwards-thinking ideology that is determined to force the rest of the world to submit or die; some people spoke that truth in the wake of the 9/11 attacks and those people were deemed bigots, because the supposedly politically correct thing to do is to try to figure out what rational motivation caused the attackers to kill so many innocent people. The problem is that there was no rational motivation; there is no reasoning with people like Adolf Hitler or Joseph Stalin or Saddam Hussein or Osama bin Laden. If you try to reason with such people then you are only delaying the inevitable battle until the conditions of that battle are less favorable for you. Confronting Hitler in 1933 would have been easier than confronting him in 1936. By 1939, there was no longer a choice: Hitler had to be confronted and he had exploited six years of naive appeasement to build Germany into a world class military power.

If Western leaders are unwilling or able to learn from the political and historical lesson of how Hitler duped Chamberlain at Munich, then they should heed the poetic words that Yeats wrote after World War I before it becomes necessary for the 21st century Yeats to make similar declarations after World War III.

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Saturday, August 1, 2015


Jonathan Pollard is Finally Granted Parole

Much has been written and said about the Jonathan Pollard case over the past three decades but here is the real story in a one paragraph nutshell:

The United States of America promised to keep Israel informed if Israel's neighbors obtained weapons that endangered Israel's survival, an agreement that was formalized in a 1983 Memorandum of Understanding. The United States of America broke that promise. U.S. navy analyst Jonathan Pollard became aware of that broken promise and he learned that the U.S. government failed to relay to Israel as much as three fourths of the information that was supposed to be shared under the provisions of the 1983 Memorandum of Understanding between the United States and Israel. This information pertained to the nuclear, chemical and biological warfare capabilities of Iran, Iraq, Libya and Syria--countries at war with Israel--and also to terrorist attacks being planned against Israeli civilians. Pollard then conveyed to Israel the information that the U.S. had illegally withheld from Israel. Pollard committed espionage on behalf of a U.S. ally, a crime that normally results in a two to four year sentence--but Pollard was sentenced to life in prison and he has already spent nearly 30 years in prison, often in solitary confinement. Pollard expressed remorse for his crime and only asked that he be treated the same way that others who have committed similar crimes have been treated, which is the expectation that the U.S. has when she is caught spying against her allies.

Now, there is a new chapter in Pollard's story, as Pollard's long odyssey through the U.S. criminal justice system is almost over; the U.S. Parole Commission has granted parole to Pollard, who is scheduled to be released on November 21, 2015--30 years to the day after he was initially imprisoned. Pollard's enemies have long alleged that Pollard gave away or sold secrets to America's enemies but those accusations have been proven false. In 2012, the CIA publicly released a previously classified 1987 damage assessment that refuted the outlandish claims some people used to justify Pollard's incarceration. That document, along with the 1987 Victim Impact Statement drafted by the Department of Justice, made it clear that Pollard did not betray U.S. secrets to U.S. enemies but rather he provided information to Israel, a U.S. ally. The Victim Impact Statement--written to place Pollard in the most unfavorable light possible--summarized the results of Pollard's actions:

Mr. Pollard's unauthorized disclosures have threatened the US [sic] relations with numerous Middle East Arab allies, many of whom question the extent to which Mr. Pollard's disclosures of classified information have skewed the balance of power in the Middle East. Moreover, because Mr. Pollard provided the Israelis virtually any classified document requested by Mr. Pollard's co-conspirators, the US has been deprived of the quid pro quo routinely received during authorized and official intelligence exchanges with Israel, and Israel has received information classified at a level far in excess of that ever contemplated by the National Security Council. The obvious result of Mr. Pollard's largesse is that US bargaining leverage with the Israeli government in any further intelligence exchanges has been undermined. In short, Mr. Pollard's activities have adversely affected US relations with both its Middle East Arab allies and the Government of Israel.

In other words, Pollard's actions irritated Israel's Arab enemies, many of which are also enemies of the United States (even if those nations are U.S. "allies" in theory, in practice their actions are often antithetical to U.S. interests). In the official court documents, there is no formal allegation, evidence or proof that Pollard's actions endangered the U.S. or U.S. personnel in any way. Pollard used illegal means to convey to Israel information that the U.S. had promised to convey to Israel through official channels.

Pollard received a harsh sentence in no small part because of a very damaging letter written by then-Secretary of Defense Caspar Weinberger, who asserted that Pollard had betrayed U.S. "sources and methods," resulting in the deaths of U.S. agents. Weinberger's letter contained false, unsubstantiated accusations and was motivated by his deep seated hostility toward Israel. John Loftus explained all of this and more in the June 2003 issue of Moment:

But it was all untrue. Every bit of it. Pollard wasn't the serial killer. The Jew didn't do it. It was one of their own WASPs--Aldrich Ames, a drunken senior CIA official who sold the names of America's agents to the Russians for cash. Pollard was framed for Ames's crime, while Ames kept on drinking and spying for the Soviets for several more years. In fact, Israeli intelligence later suspected that Ames played a direct role in framing Pollard. But no one in America then knew the truth. 

Ames was arrested in February 1994, and confessed to selling out American agents in the Soviet Union, but not all of them. It was only logical to assume that Pollard had betrayed the rest of them, as one former CIA official admitted shortly after Ames's arrest. Even one life lost was too many. So Pollard continued to rot in jail. No one dreamed that yet another high-level Washington insider had sold us out to Soviet intelligence. Years passed, and eventually a Russian defector told the truth. A senior FBI official--Special Agent Robert Hanssen--had betrayed the rest of our agents. Hanssen was arrested in February 2001, and soon confessed in order to avoid the death penalty. He was sentenced to life in prison without parole.

Would the Americans now admit that they had been conned into blaming Pollard? Beltway bureaucrats do not readily admit to mistakes of this magnitude. Instead, they convinced themselves that Pollard might still be at least partly to blame for the worst debacle in U.S. intelligence history. One desperate analyst from the National Security Council, looking for something to pin on Pollard, had his own theory. Maybe the Russians didn't initially believe that their own spies (Ames and Hanssen) had procured all the names of U.S. agents in the Soviet Union. Maybe Pollard's list tipped the scales. 

Such things had happened before. Once again, Washington insiders circled their alphabet agencies to fire back at the critics who dared to suggest that Pollard might have been innocent of the major charge against him.

Meanwhile, deep inside the Navy's intelligence service, a low-level decision was made to re-examine the Pollard case in view of the convictions of Ames and Hanssen. With sickening chagrin, the Navy discovered that the evidence needed to clear Pollard had been under its nose all along.

As my source in Naval intelligence explained, the list of our secret agents inside Russia had been kept in a special safe in a special room with a special "blue stripe" clearance needed for access. When I was a lawyer in the Justice Department and would be sent over to the CIA to do research, I was permitted to use only a blue-striped, CIA-issue legal pad for note-taking. Nothing with a blue stripe could leave the building without being scrutinized by CIA security.

But Jonathan Pollard didn't have "blue stripe" clearance, according to intelligence sources I spoke with. That was the bombshell that would clear him of any possible connection to the deaths of our Russian agents.

Loftus notes that Pollard found something profoundly damaging to Weinberger and other top U.S. government officials, something that became of very high interest after the 9/11 attacks:

After 9/11, though, I began to realize that Pollard's tale was only the beginning of a much bigger story about a major America intelligence scandal, which is the subject of a book I am now working on. Although Jonathan Pollard did not realize it, he had stumbled across the darkest secret in the Reagan administration's closet. It is one of the reasons that I am serving as the intelligence advisor on a trillion-dollar federal lawsuit filed in August 2002 against the Saudis on behalf of the victims of 9/11.

Pollard in fact did steal something that the U.S. government never wishes to talk about. Several friends inside military intelligence have told me that Pollard gave the Israelis a roster that listed the identities of all the Saudi and other Arab intelligence agents we knew about as of 1984. (This has been corroborated by Israeli sources, as well.) At that time, this list, known in intelligence circles as the "blue book," would have been relatively unimportant to the United States--but not to Israel.

Since 9/11, however, Pollard's "blue book" is of profound interest to everyone, including the U.S. These particular agents are now a major embarrassment to the Saudis and to the handful of American spy chiefs who had employed these Saudi intelligence agents on the sly. Some of the names on this list--such as Osama Bin Laden--turned out to be leaders of terrorist groups, including the Muslim Brotherhood and what we now call Al Qaeda.

In hindsight, we now know that Pollard stole the one book--that, incidentally, was alluded to in Weinberger's secret memorandum--that unquestionably proves that the Americans knew as early as 1984 about the connection between the Saudis and terrorist groups.

No less an authority than former CIA Director James Woolsey has publicly stated that antisemitism at the highest levels of the U.S. government is the primary reason for Pollard's disproportionate prison term. After being captured, Pollard took a plea deal, saving the U.S. government the cost and logistical challenges of a long trial. Pollard fully cooperated with the U.S. government in exchange for not receiving a life sentence but the U.S. government did not keep up its end of the bargain; last year, Seth Lipsky described how the U.S. violated its plea agreement with Pollard. After Pollard appealed his initial life sentence, two members of the three judge panel rejected his appeal. The judge who sided with Pollard, Stephen Williams, called the government's breach of the plea agreement "a fundamental miscarriage of justice." Lipsky summarized Williams' lengthy and passionate dissent:

The government, as Williams reprised it, made three promises. One was to bring to the court's attention Pollard's cooperation and "represent that the information supplied was of 'considerable value'..." Two was to refrain from seeking a life sentence. Third was to limit what it said to "the facts and circumstances." Williams concluded that the government "complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit." 

It took Williams much of an opinion of 5,000 words to sketch the sleaziness, the slyness of the semantic evasions, by which the government broke its promises. To those of us invested in both the American Constitution and the Jewish struggle, it was a heart-breaking picture. The most galling feature--at least to my ear--was the use by the government of a statement from the defense secretary at the time Pollard committed his crime, Caspar Weinberger. 

Weinberger had ginned up a memorandum saying that "the punishment imposed should reflect the perfidy of [Pollard's] actions, the magnitude of the treason committed, and the needs of national security." What was so appalling about that--and pointedly marked by Williams--is the use of the word treason. For the Constitution provides that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

Both the government and Weinberger knew what they were doing. They could have won a severe sentence without that libel. Yet they spoke of the crime as if Israel were an enemy. It was inaccurate. It was wrong. And it was a violation of a written contract. It may be that one dissenting opinion doesn't amount to a verdict. But given that Judges Silberman and Ginsberg boiled down their opinion against Pollard to the timing of his motion, Williams is the most substantive review we have.

Pollard has dealt with numerous setbacks and betrayals by both the U.S. and Israeli governments. His case is not only a miscarriage of justice but a cautionary tale about America's foreign policy mistakes in the Mideast, mistakes that are continuing to be made and that could have dire consequences.


Further Information:

1) While languishing in prison and suffering from poor health, Pollard spoke truth to power not just about his case but also about larger geopolitical issues; he criticized the reckless and unprecedented concessions Israel has made to her enemies, capitulations that endanger not just Israel but the entire free world.

2) Appeasement of Iraq Made Me a Spy: Pollard accepted culpability for his crime and explained why he acted as he did:  "...I want to state quite categorically that I do not consider myself to be above the law. I fully appreciate the fact that I must be punished for my activities however justified I may have felt them to be. That being said, I do not believe that the draconian sentence that was meted out to me was in any way commensurate with the crime which I committed. Nowhere in my indictment... was I ever described as a 'traitor,' which is hardly a surprise given the fact that the operation with which I was associated actually served to strengthen America's long-term security interests in the Middle East."

3) One Man's Agony After the Fact: Former NSA analyst Bruce Brill described "The U.S. intelligence community's anti-Israel policy."

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Saturday, July 18, 2015


Jerzy Kosinski on Chess

After surviving the Holocaust and escaping from behind the Iron Curtain to freedom in the United States, Jerzy Kosinski wrote two non-fiction books under the pseudonym Joseph Novak before embarking on a very successful career as a novelist. Kosinski is best known for his novels The Painted Bird and Steps, which won the 1969 National Book Award.

In a 1988 lecture at the Smithsonian Institution, Kosinski touched on a variety of subjects, including chess. Chess was a big part of the Jewish-Polish culture in which Kosinski grew up in the 1930s and 1940s. Kosinski lamented the rise of television as an opiate for the masses and dreamed of a future in which widespread participation in chess would benefit society as a whole:

Imagine a time when chess really is a sport not just for masters but for the masses--a time when boxers or wrestlers are no longer considered fun to watch and when chess is a Las Vegas-style event. Kids would notice. They would learn how to play it from television or the Internet. They could play with other people on video games or by themselves on computers. Playing against a computer could even help to raise their game. Perhaps the game that my father used to call a great Jewish game could become a national game. And the result would be a new generation of people who would know how to concentrate.

Concentration means focusing. It means making good choices. It means spirituality. It means knowing who you are, looking at yourself as if you were a chessboard, and assessing the options you have in life. Do you move to the left? Do you go to the right? The game of chess could open up other worlds--of creativity, of big business, of politics, of Wall Street--all of which require a similar level of concentration. 

That brings me to the end of my private fantasy: that one day kids everywhere will be masters of concentration, not slaves to a television set.

Kosinski's vision is quite prescient. When he wrote those words, the internet was in its infancy and the use of chess computers as a serious training tool had only just begun. Now, the ubiquity of internet chess and the extraordinary strength of chess computers have given rise to a record-setting group of young chess phenoms. One of those phenoms, World Chess Champion Magnus Carlsen, has the right combination of skills, charisma and youth to lift chess to unprecedented heights. Carlsen is a magnificent player who is more balanced emotionally than Bobby Fischer, who created a short-lived chess boom in the 1970s that quickly went bust after he relinquished his World Championship title and went into a two decades-long seclusion.

Kosinski is right that chess can and should play a role in elevating our culture. Perhaps Carlsen as an active World Chess Champion and former World Chess Champion Garry Kasparov--who is doing great work to promote chess in the schools worldwide--will fulfill the vision that Kosinski so eloquently described more than a quarter century ago.

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Friday, July 17, 2015


Reflections on the 39th Anniversary of the Entebbe Rescue

The murder of six million Jews during the Holocaust while the nations that did not actively collaborate in the genocide stood idly by and did nothing showed that the only way the Jewish people would ever be safe in this world was to rebuild their independent nation and depend on no one else to protect them from their enemies. The ominous specter of a nuclear-armed Iran is just the latest example of this truth; if Israel does not act to stop the threat, no one else will and many--not just Jews--will suffer.

If Israeli Prime Minister Benjamin Netanyahu needs something to inspire him to act or if his fellow citizens need a reminder of what is at stake and what can and must be done, the answer is to look no further than Netanyahu's own family history at Entebbe.

Entebbe--nearly 40 years later, the name still evokes powerful emotions both in those who were there and in those who understand what that name represents. In the late 1960s and early 1970s, terrorists conducted a wave of airplane hijackings but they only succeeded in hijacking one Israeli El Al plane; after the 1968 hijacking of an El Al plane to Algeria, the Israelis solved their hijacking problem by becoming the only country in the world whose civilian airliners had armed guards and reinforced steel cockpit doors (precautions that would have come in very handy in the United States on September 11, 2001).

Mind you, those Israeli precautions did not stop terrorists from trying to hijack Israeli planes. El Al pilot Uri Bar-Lev's quick and brave thinking thwarted a potential hijacking in 1970. When two anti-Israel terrorists attempted to commandeer his El Al Flight 219 from Tel Aviv to New York on September 6, 1970, Bar-Lev calmly assessed the situation, refused to give the terrorists access to his cockpit and sent the plane into a dive that did not harm the strapped-in passengers but momentarily stunned the terrorists. That gave one of the Israeli air marshals the time and opportunity to kill one of the terrorists. The other terrorist rolled a grenade but the grenade did not explode and she was detained. Bar-Lev explained his actions simply: "As long as you know you're not going to allow it to happen, then you'll find the way."

Bar-Lev's heroism was not appreciated at home or abroad. He diverted the plane to Great Britain to seek medical attention for the chief flight attendant, who had been critically injured after attempting to subdue the terrorists. Diverting the plane likely saved the chief flight attendant's life, but almost led to Bar-Lev and the air marshals being arrested for killing the terrorist. Bar-Lev managed to sneak both air marshals off of the plane and on to another El Al plane bound out of the country but Bar-Lev and his crew were detained overnight by British authorities before being set free. Upon arriving in Israel, Bar-Lev was pressured to resign from his job by Israeli security officials who felt that Bar-Lev violated protocol during the crisis (Bar-Lev had asked one of the air marshals to join him in the cockpit during the flight after Bar-Lev thought that some of the passengers looked suspicious) but after Bar-Lev personally called Prime Minister Golda Meir and explained his actions he was given two weeks off and then reinstated as a pilot, with honors for his bravery.

Once terrorist organizations realized that it would be futile to try to target Jews and Israelis by hijacking Israeli planes, they shifted their focus to hijacking other, less secure planes that had Jewish and/or Israeli passengers. On June 27, 1976, Germans from the Baader-Meinhof terrorist organization and Arabs from Popular Front for the Liberation of Palestine terrorist organization hijacked Air France Flight 139 and forced the pilot to fly the plane to Entebbe, Uganda. The terrorists separated the Jewish and Israeli passengers from the other passengers; as Benjamin Netanyahu later noted, "(Just) thirty odd years after the Holocaust, German terrorists were differentiating between Jews and non-Jews, keeping the Jews and threatening to murder them." After the terrorists declared that they would start killing hostages within 48 hours if their demands were not met, Israel--acting alone--planned and executed one of the most daring rescue missions ever.

In an article titled Entebbe Memories, Paula Stern recalled those harrowing events:

I was sick thinking of how they had separated the Jewish and Israeli passengers; releasing the Christian ones. That a German terrorist was involved in this separation brought home again the knowledge that the Holocaust will never really leave us. I will forever remember that the French crew was offered the chance to leave with the Christians…and chose to stay. The deadline was approaching. The terrorists were threatening to kill the passengers. At any moment, I expected to hear that explosions and gunfire had been heard coming from the compound.

Stern's apprehension turned to exultation when she learned that an Israeli rescue operation had freed almost all of the more than 100 hostages (three hostages were killed during the rescue operation--Jean-Jacques Mimouni, Pasco Cohen and Ida Borochovitch--and a fourth hostage who had earlier been taken to the hospital, Dora Bloch, was later killed in the hospital by Ugandan soliders) and brought them safely back to Israel:

My heart sang with such joy. I remember crying--but they were tears of relief. I had expected 100 dead, not 100 freed. Yoni Netanyahu--commander of the operation and older brother of the current prime minister--gave his life bringing the passengers home. He epitomized the Israeli army officer. Follow me, he told his men. He led them in and was the first and only Israeli army soldier to fall. He died on the plane flying home, despite desperate efforts to save his life. There is a sense of peace knowing that in his last moments, he must have known that he had succeeded. He had risked all for the freedom of others, for his people--those who no one else but Israel could have saved.

Three years ago, Israeli Brig. Gen. (res.) Joshua Shani, the son of refugees who escaped the Holocaust and the lead pilot in Operation Entebbe, spoke about his experiences during the mission:

We began our journey from Sharm el-Sheikh, Egypt, which at the time was under Israeli control. The takeoff from Sharm was one of the heaviest ever in the history of this airplane. I didn't have a clue what would happen. The aircraft was crowded. I was carrying the Sayeret Matkal assault team, led by Yonatan Netanyahu. I was also carrying a Mercedes, which was supposed to confuse Ugandan soldiers at the airport, because Idi Amin, the country's dictator, had the same car. And I also found room to pack Land Rovers and a paratrooper force.

I gave the plane maximum power, and it was just taxiing, not accelerating. At the very end of the runway, I was probably two knots over the stall speed, and I had to lift off. I took off to the north, but had to turn south where our destination was. I couldn't make the turn until I gained more speed. Just making that turn, I was struggling to keep control, but you know, airplanes have feelings, and all turned out well.

We had to fly very close to Saudi Arabia and Egypt, over the Gulf of Suez. We weren't afraid of violating anyone's air space--it's an international air route. The problem was that they might pick us up on radar. We flew really low--100 feet above the water, a formation of four planes. The main element was surprise. All it takes is one truck to block a runway, and that's all. The operation would be over. Therefore, secrecy was critical.

At some places that were particularly dangerous, we flew at an altitude of 35 feet. I recall the altimeter reading. Trust me, this is scary! In this situation, you cannot fly close formation. As flight leader, I didn't know if I still had planes 2, 3 and 4 behind me because there was total radio silence. You can't see behind you in a C-130. Luckily, they were smart, so from time to time they would show themselves to me and then go back to their place in the formation, so I still knew I had my formation with me...

[After landing at Entebbe,] I stopped in the middle of the runway, and a group of paratroopers jumped out from the side doors and marked the runway with electric lights, so that the other planes behind me could have an easier time landing. The paratroopers went on to take the control tower. The Mercedes and Land Rovers drove out from the back cargo door of my airplane, and the commandos stormed the old terminal building where the hostages were. While coordinating the assault, Yonatan Netanyahu, Sayeret Matkal's commander, was fatally shot by a Ugandan soldier...

We had a little problem: We needed fuel to fly back home. We came on a one-way ticket! We had planned for a number of options for refueling, and I learned from the command-and-control aircraft flying above us that the option to refuel in Nairobi, Kenya, was open. After about 50 minutes on the ground in Entebbe, I gave the order: "Whoever is ready, take off." I remember the satisfaction of seeing plane number 4, with the hostages on board, taking off from Entebbe--the sight of its silhouette in the night. It was then that I knew. That's it. We did it. The mission succeeded.

After my father's death, I found his letters from Bergen-Belsen that he sent to Kibbutz Mishmar Haemek. The letters describe his experiences during the Holocaust, what happened to his family, etc. I won't discuss it here. One of his letters said, "My only comfort is Joshua. He gives me reason to continue."

The reason I mention this letter is because, 30 years later, when I returned from Entebbe, my father hosted a party for me. Family and friends were all there to celebrate the success of my mission. My father was in a great mood. I know what he was thinking, a Holocaust survivor. His son at the time was a lieutenant colonel in the Israel Air Force and had just flown thousands of miles in order to save Jews. It probably added ten years to his life.

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Monday, June 29, 2015


The Magna Carta's Legacy

With ISIS sponsoring and/or inspiring terror attacks around the world while trying to turn this planet into a backwards-thinking, intolerant caliphate where citizens would have no rights and no freedoms and with the Supreme Court vastly overstepping its Constitutionally proscribed role, it is important to remember what makes our system of government work, why it is unique and why it is worth fighting to preserve it.

Daniel Hannan's May 29, 2015 article for the Wall Street Journal titled Magna Carta: Eight Centuries of Liberty explains why that document has had such a lasting impact on Western society:

The bishops and barons who had brought King John to the negotiating table understood that rights required an enforcement mechanism. The potency of a charter is not in its parchment but in the authority of its interpretation. The constitution of the U.S.S.R., to pluck an example more or less at random, promised all sorts of entitlements: free speech, free worship, free association. But as Soviet citizens learned, paper rights are worthless in the absence of mechanisms to hold rulers to account.

...The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.

When we call them universal rights, we are being polite. Suppose World War II or the Cold War had ended differently: There would have been nothing universal about them then. If they are universal rights today, it is because of a series of military victories by the English-speaking peoples.

In America, these rights are protected by our system of government, anchored by the Constitution and supported by the checks and balances that are supposed to prevent any one branch of government from becoming too powerful. Hannan notes that there are "universal rights" within our country only because the Founding Fathers, following the example set by the Magna Carta, developed a "constitutional government—or, as the terse inscription on the American Bar Association’s stone puts it, 'freedom under law.'"

Hannan explains:

The law was no longer just an expression of the will of the biggest guy in the tribe. Above the king brooded something more powerful yet—something you couldn't see or hear or touch or taste but that bound the sovereign as surely as it bound the poorest wretch in the kingdom. That something was what Magna Carta called "the law of the land."

The idea of the law coming up from the people, rather than down from the government, is a peculiar feature of the Anglosphere. Common law is an anomaly, a beautiful, miraculous anomaly. In the rest of the world, laws are written down from first principles and then applied to specific disputes, but the common law grows like a coral, case by case, each judgment serving as the starting point for the next dispute. In consequence, it is an ally of freedom rather than an instrument of state control. It implicitly assumes residual rights.

Hannan declares that it is not a coincidence that while most of the world has fallen prey to dictatorships of one kind or another at one time, the "Anglosphere, unusually, retained a consensus behind liberal capitalism. This is not because of any special property in our geography or our genes but because of our constitutional arrangements. Those constitutional arrangements can take root anywhere. They explain why Bermuda is not Haiti, why Hong Kong is not China, why Israel is not Syria."

Democracy does not flower everywhere. It is delicate and it must have the right environment in order to blossom. Hannan concludes:

Americans, like Britons, have inherited their freedoms from past generations and should not look to any external agent for their perpetuation. The defense of liberty is your job and mine. It is up to us to keep intact the freedoms we inherited from our parents and to pass them on securely to our children.

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An Activist Supreme Court Undermines the Integrity of the Constitution

Regardless of whether you personally support or oppose gay marriage, it should be apparent that there are serious flaws in the Supreme Court's majority opinion (Obergefell v. Hodges) compelling states to recognize gay marriages. The U.S. Constitution set up a government with a balance of powers among the executive, legislative and judicial branches. The Supreme Court, as part of the judicial branch, is charged with interpreting the laws passed by the legislature and enforced by the executive branch. Except for the fundamental rights explicitly mentioned in the Constitution, the judicial branch does not have the authority to enact (or repeal) other rights, because that is a privilege and responsibility reserved for the legislature, whose members are elected by and must answer to the voting public (unlike Supreme Court justices, who enjoy lifetime appointments). Judges are supposed to be impartial arbiters; legislators can (and are expected to be) partisan advocates. Judicial overreach is very unhealthy for our democracy, whether or not you agree with a particular instance of judicial overreach; beware that once the principle of judicial overreach is established, you may not like how the judicial branch wields that power in the future.

Matthew Cooper's June 27, 2015 Newsweek article cogently cautions that an activist Supreme Court threatens to undermine the integrity of the Constitution: "The Supreme Court’s sweeping ruling on gay marriage marks a stunning expansion of gay rights and also provides more proof that the high court is one of the most revolutionary (and hypocritical?) in living memory, and continues to infuriate and hearten both left and right."

Liberals celebrate the gay marriage ruling but Cooper notes, "Liberals decried the activism of the Roberts rulings on voting rights and campaign finance—rulings in which their beloved Justice Kennedy was in the conservative majority—just as conservatives are denouncing the gay marriage ruling today. Left and right argue that the rulings they favor were logical extensions of previous holdings rather than the creation of new law out of thin air."

The point is that partisans from both sides of the political spectrum praise rulings that go in their favor and criticize rulings that do not go in their favor but neither set of partisans seems to fully grasp the potential dangers of an activist court. Chief Justice Roberts articulates this point very well in the opening lines of his Obergefell v. Hodges dissent:  

Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex.
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise "neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A.Hamilton) (capitalization altered).

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State's decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent. The majority expressly disclaims judicial "caution" and omits even a pretense of humility, openly relying on its desire to remake society according to its own "new insight" into the "nature of injustice." Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution "is made for people of fundamentally differing views." Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905) (Holmes, J., dissenting). Accordingly, "courts are not concerned with the wisdom or policy of legislation." Id., at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own "understanding of what freedom is and must become." Ante, at 19. I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

Roberts then notes that the ruling hearkens back to the bad old days of the Lochner era, when the Supreme Court "struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that '[t]he criterion of constitutionality is not whether we believe the law to be for the public good.' Adkins v. Children's Hospital of D. C., 261 U.S. 525, 570, 43 S.Ct. 394, 67 L.Ed. 785 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected 'liberty,' the Lochner line of cases left 'no alternative to regarding the court as a ... legislative chamber.' L. Hand, The Bill of Rights 42 (1958)."

Roberts adds, "Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them 'unwise, improvident, or out of harmony with a particular school of thought.' Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 99 L.Ed. 563 (1955)."

Needless to say, liberals did not like the activist Lochner era Supreme Court very much. President Franklin Roosevelt pushed through New Deal legislation in part to undo the consequences of some of the Lochner era rulings--and he threatened to "pack" the Supreme Court to make sure that the judiciary would not interfere with his plans. 

Roberts believes that the Obergefell ruling will have long-standing and unintended (or, at least, unwelcome) consequences because of the harsh way that it depicts those who do not support gay marriage:

Perhaps the most discouraging aspect of today's decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that "the necessary consequence" of laws codifying the traditional definition of marriage is to "demea[n] or stigmatiz[e]" same-sex couples. Ante, at 19. 

The majority reiterates such characterizations over and over. By the majority's account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States' enduring definition of marriage—have acted to "lock ... out," "disparage," "disrespect and subordinate," and inflict "[d]ignitary wounds" upon their gay and lesbian neighbors. Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (ALITO, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority's "better informed understanding" as bigoted. Ante, at 19.

In the face of all this, a much different view of the Court's role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Roberts is right about all of this but the Obergefell case is not the first time during his term as Chief Justice that the Supreme Court has taken an activist role. Cooper writes, "The activism of the Roberts court stands in stunning contrast to the Chief Justice's claim during his 2005 confirmation that he wanted a humble court and saw himself as only 'an umpire' calling 'balls and strikes.'" Copper concludes, "...the activism of the justices in Roberts’s court—whether it yields liberal rulings like gay marriage or conservative ones—seems here to stay."

Justice Antonin Scalia, joined by Justice Clarence Thomas, agrees with Chief Justice Roberts' Obergefell dissent but penned a separate, additional dissent "to call attention to this Court's threat to American democracy."

Justice Scalia characterizes the majority opinion as "a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' 'reasoned judgment.' A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."

Justice Scalia exposes the underlying flaw of the reasoning behind the majority opinion:

But what really astounds is the hubris reflected in today's judicial Putsch. The five Justices who compose today's majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment's ratification and Massachusetts' permitting of same-sex marriages in 2003.20 They have discovered in the Fourteenth Amendment a "fundamental right" overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their "reasoned judgment." These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.

Justice Thomas, joined by Justice Scalia, authored his own dissent, beginning with these words:

The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.

Justice Thomas asserts that the petitioners and the majority opinion misrepresent "liberty" as it is meant in the Constitutional context:

Petitioners' misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of "liberty" beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.5 They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.6 In a similar vein, Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), involved a man who was prohibited, on pain of criminal penalty, from "marry[ing] in Wisconsin or elsewhere" because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), involved state inmates who were prohibited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage.

Perhaps the last word should go to Justice Samuel Alito, whose dissent was joined by Justice Scalia and Justice Thomas: "Most Americans—understandably—will cheer or lament today's decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority's claim of power portends."

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