Saturday, August 1, 2015
Jonathan Pollard is Finally Granted Parole
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.
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."
Saturday, July 18, 2015
Jerzy Kosinski on Chess
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.
Friday, July 17, 2015
Reflections on the 39th Anniversary of the Entebbe Rescue
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.
Monday, June 29, 2015
The Magna Carta's Legacy
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.'"
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.
An Activist Supreme Court Undermines the Integrity of the Constitution
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.
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.
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."
McKay Smith's Relentless Pursuit of a Nazi War Criminal is Inspirational
The 36 year old Smith works in the Justice Department's National Security Division. His job, as Harris describes it, is to watch the watchers, meaning keep tabs on those who perform surveillance for the government. However, Smith's passion is pursuing Nazis who have eluded justice for their participation in war crimes during World War II. Smith has spent four years and $15,000 of his own money to build an archive filled with more than 10,000 pages of official documents and photographs.
He started the project with a very different goal in mind: finding out about his grandfather, Lt. Raymond Murphy, who fought during World War II and passed away in 1970. After Murphy's B-17 bomber was shot down over France in 1944, he spent four months behind enemy lines. Murphy typed up a report detailing his experiences and at the end of the report he added this handwritten note: "I saw a town where some 500 men, women and children had been murdered by the Germans. I saw one baby who had been crucified."
Smith could not get that last image out of his mind. His research showed that Murphy had witnessed the grisly aftermath of a Nazi massacre in the French village of Oradour-sur-Glane. Smith's research also revealed something else: one Nazi soldier who had been in that village--and who had never been tried for a war crime--was still living.
Werner Christukat is a 90 resident of Cologne, Germany. During World War II, he was a machine gunner with the Waffen SS. Christukat's unit was en route to fight the Allied forces that had landed at Normandy when it stopped in Oradour. Harris describes what the SS did in Oradour:
There, in a scene of depravity that was horrific even for the age of the Holocaust, Christukat's unit murdered 642 men, women, and children. It was the single largest mass killing of French civilians during the German occupation. Only six people survived. The men razed the village, leaving nothing but a ruined shell, which still stands today in the exact condition the Nazis left it. The French call Oradour a "ghost village."
In 1983, one SS officer was convicted for his role in the massacre, serving 14 years in prison before enjoying the last decade of his life in freedom. Right after World War II, 20 soldiers were convicted of participating in the massacre but none served any jail time. The rest of the murderers never faced justice at all, an outrage that has inspired Smith to work tirelessly to build a case against Christukat.
German prosecutors questioned Christukat in 1978 but decided that they did not have enough evidence to pursue a case against him. In January 2013, documents discovered in the archives of the Stasi (the East German secret police) contained enough evidence to charge Christukat with murder and accessory to murder. However, in December 2014 the district court in Cologne ruled that there was not enough evidence to proceed with a trial. The state attorney appealed that decision to the regional court.
Meanwhile, Smith continued to do his research, telling Harris, "I think it's clear that any soldier in that village on June 10 has blood on his hands."
The war crimes that Christukat's unit committed in Oradour are not isolated, Harris notes:
...Christukat’s regiment also conducted a brutal assault on the village of Tulle just one day earlier, and the historical record that Smith unearthed is filled with accounts of other Nazi units inflicting the same atrocities in other French villages as Christukat's regiment did at Oradour. In some of those towns, civilians were found strapped to wood planks, their arms spread out, as if they'd been crucified. This suggests that if the baby Murphy saw was at Oradour, the crucifixion was part of a systematic campaign of terror directed at French civilians, and not a unique event, Smith said.
The sickening details of the Oradour massacre are based on eyewitness testimony and from the accounts provided by the soldiers who were put on trial after World War II:
With the town surrounded by what one Oradour historian called an "execution perimeter," the unit's commander headed for the town center. He "pretended the citizens had a weapons cache in the village despite the denial of the mayor," according to one report that Smith found from the Office of Strategic Services (OSS), the forerunner of the U.S. Central Intelligence Agency, and that relied on original witness accounts. Other soldiers moved through the village with deliberate precision: up the main street, then back down to the center. Men, women, and children were rounded up and told to report to the fairgrounds, presumably to check their identity documents.
Smith contends that even men like Christukat, who were stationed on the perimeter, could have had no doubt about what the Germans had in store for Oradour. It's a point of view that many historians back. "A roundup began, directed systematically toward the fairgrounds, starting with the ring of sentinels and going from the village's edge toward the center," according to Oradour historian Jean-Jacques Fouché, who was the founding director of the "memory center" at the village and whose historians consider among the definitive accounts.
Once the bulk of the townspeople were gathered at the fairground, Christukat's unit separated the men and lined them up, in groups of 20, inside nearby barns and sheds. There, German machine gunners opened fire, aiming for their legs. The men fell like cut wheat. Those who didn't die from the gunshot wounds or bleed to death were killed when the soldiers set fire to the buildings. One gunner was spotted chewing on a lump of sugar, which he'd apparently stolen from a town store, as he waited for a batch of men to be brought before him.
"After the massacre came the women and children's turn for whom the Germans had prepared a more refined torture," according to an article in the French underground newspaper, Les Cahiers Francais, published by a band of resistance fighters. Approximately 250 women and 200 children were packed into the church, which normally sat at most 300 parishioners. "They took them to the church where some of the little boys and girls were to take their First Communion the next day. There, the SS amused themselves by abusing their victims and profaning the altar; then, after laying down a large crate in the middle of the nave, they left." The crate contained a bomb.
The soldiers locked the doors to the church, triggered the device, and then threw grenades at the building, along with more explosives. The church was engulfed in flames.
The lone survivor recalled a number of sounds after the explosion. First, the screaming, as women clamored up the walls of the church and tried to force their way out the window. Then gunfire, as the soldiers shot at anyone who tried to free herself from the burning building. More than 60 of the children were less than six years old and must have been too small to climb. They huddled together near the altar or retreated into their mothers’ arms. Some of the children were in baby carriages.
In one of the barns, two men who'd managed to hide under their friends' bodies after they were mowed down by a machine gun heard something new and wholly unexpected: Music. The guards had turned on a radio as they sauntered through Oradour, dousing homes and buildings with fuel before setting them alight. The two men escaped after soldiers set fire to the barn. They are still alive.
The soldiers flushed villagers from hiding places behind clumps of ivy and then shot them as they ran for their lives. One soldier was heard singing. Another played an accordion. Christukat's unit apparently enjoyed working with accompaniment: At Tulle, the soldiers allegedly had played a waltz over their tank radios as they hung 99 civilians from lampposts.
Smith argues that the duration and scope of the massacre implicates every member of that SS unit as a murderer and/or an accessory to murder because every member of that unit could have at least fled the scene and declined to participate. The nature of the men who served in that unit is also revealed by another tidbit that Smith's research uncovered. Christukat's unit captured Herbert Campbell, an airman from Murphy's B-17 crew. Harris succinctly describes Campbell's fate at the hands of Christukat's SS unit: "The Germans beat Campbell with rifle butts, shoved a bayonet through his cheeks, and gouged out his eyes before stomping his head into small pieces."
Christukat admits being present in Oradour. Based on the eyewitness testimony, it stretches credulity to the breaking point to argue that he did not know about the massacre. Based on the SS' conduct in Oradour and throughout Nazi Germany's reign of terror, it is difficult to believe that Christukat did not participate in the slaughter. Christukat has provided varying and inconsistent accounts of his actions during the massacre, even suggesting that instead of participating in the massacre he actually saved some people's lives. However, the documented evidence about the few survivors of the massacre does not correspond with any of Christukat's various tales. Christukat has admitted that he was not merely stationed on the perimeter of the town but that he ventured into Oradour during the massacre.
Harris writes that Christukat's stories do not hold up under scrutiny:
In 2013, investigators went to Christukat's home with photos, sketches, and a PowerPoint presentation that reconstructed where the now ruined buildings had stood. Point by point they went through Christukat's story and poked holes in it—he couldn't have been on one street when he claimed he was; he couldn't have seen explosives inside the church from the door, because you can't see the altar from the door; he had to have gone inside.
Smith declares, "Christukat's claims are absurd. [He] says he saved a child, yet almost all children were in school that day and only one managed to escape—Roger Godfrin. Moreover, while Roger was escaping he was shot at multiple times and even left for dead by a sentry outside the village. We need to get past the problem that there are no direct witnesses to Christukat's actions. This SS unit did their best to make sure there were no living witnesses, and it's clear that even the patrols on the outskirts of the village executed those who were trying to escape."
Sadly, Smith's crusade for justice fell short. The German investigators did not use Smith's evidence and in May 2015 the court ruled that the evidence presented by the prosecution failed to show "at least the probability" that Christukat had "concrete involvement in murder or complicity to murder." Technically, the case has been left open and Christukat could still be prosecuted if more evidence is presented to the court--but realistically, he will never spend a day in jail for his role in the Oradour massacre.
Smith does not agree with the German court's ruling but he understands the judicial process: "As a lawyer, I've been taught to respect a final appeal. I also know that investigative findings are only worthwhile if they can effectuate change. So, the court's ruling has been very difficult for me."
The whole case outrages Smith but what disturbs him the most is Christukat's implausible assertion that he helped to save a young boy during the massacre: "I think there is a far better chance that the boy he said he helped is that poor child my grandfather saw nailed to the cross."
Thursday, May 21, 2015
Reflections on the 95th Anniversary of the San Remo Conference
It is important to understand that the geographical entity Palestine--there was not then, nor has there ever been, a sovereign country with that name--consisted of the areas now known as Jordan, Israel, Judea/Samaria and Gaza. Palestine was largely uninhabited and almost completely undeveloped agriculturally, economically and industrially. The Jewish people were the last people to create an independent nation there, but that nation--like many others--was conquered by the Roman Empire and then subsequently ruled by a number of other empires. None of those conquerors valued the area for anything other than its strategic importance as a land bridge between Africa and Asia; no regional capitals or significant cities were established by anyone after Rome quelled the third and final Jewish Revolt (132-135 C.E.). For nearly two millenia, the Jewish people dreamed--and prayed daily--to return to their homeland and rebuild an independent state. The defeat of the Ottoman Empire during World War I made it possible to create several independent Arab states and one independent Jewish state in the Mideast.
Three delegations--two Arab and one Jewish (there was no "Palestinian" delegation because Palestine was a geographical designation only)--made presentations at the San Remo Conference. The two Arab delegations focused on the fates of the territories that ultimately became the nations of Syria and Lebanon, while the Jewish delegation wanted to ensure that the Balfour Declaration would be honored. No one objected to the idea of recreating a Jewish State in Palestine and so the San Remo Conference voted unanimously to do so, a decision that was also ratified by the 51 members of the League of Nations. Thus was created a binding obligation under international law.
The British Empire--which was granted trusteeship over the Palestine Mandate until such time as a Jewish State was created there--reneged on their promises and the terms ratified by the San Remo Conference. The British illegally partitioned the Palestine Mandate, slicing off 80% of the territory to create what later became known as Jordan. The remaining portion of Palestine was further partitioned by the United Nations in 1947 after the British abandoned the Palestine Mandate. The Jewish residents of Palestine accepted this partition and built the modern State of Israel, while the surrounding Arab nations--already granted independence--rejected the partition and vowed to destroy the young Jewish State. Israel survived the Arab attempt at genocide, committed in the immediate aftermath of the Nazi Holocaust that decimated European Jewry, and to this day remains the only fully functioning democratic state in the region. The Arab nations could have taken in Arab refugees, much like Israel took in the Jewish refugees who were expelled from or fled Arab countries, but instead the Arab nations decided to keep the Arab refugees in camps to use as propaganda pawns, a practice that continues to this day.
Israel is the only Mideastern country where Arabs can vote in free elections, where women and minorities enjoy full rights and where the economy is not completely controlled by a dictatorship or monarchy. Israel made the desert bloom, Israel has made numerous contributions in the fields of science, medicine and technology and Israel has often extended her hand (and her resources) to help countries that are less fortunate and/or have been beset by natural disasters.
Israel was created under the tenets of international law (including the Balfour Declaration and the San Remo Conference), she has survived repeated attempts by her neighbors to annihilate her and she has made many positive contributions to the international community. Israel has repeatedly given up "land for peace" (including the Sinai Desert, Gaza and portions of Judea/Samaria) only to see those gestures answered by terrorist attacks and calls for Israel's destruction.
The terror and mayhem spreading throughout the Mideast now has nothing to do with Israel. If Israel disappeared today, the violence, death and destruction would continue tomorrow unabated. Yet, some people insist that all of the region's problems would be solved if Israel gave up more land and made herself more vulnerable. Look at a map of the Mideast. You need a magnifying glass to find Israel. Read the international law preceding Israel's creation. Read the long history of brutal Arab and Muslim attacks against Jews, Christians and other minorities in the region. Then ask yourself what really motivates those people who insist that the existence of one tiny, democratic, country within a region otherwise consisting of large, undemocratic Arab/Muslim countries is the main source of discontent, anger and violence?
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