Donald Trump’s New Ban

Donald Trump’s New Ban

by

Howard Adelman

I interrupt the series on antisemitism to discuss the new Executive Order of President Donald Trump. Since Israel/Palestine is a major producer of terrorists (almost all Palestinian, but some Jewish), imagine placing a travel ban on Israel/Palestine in the same way that one has been imposed on Iran, Syria, Libya, Somalia, Sudan, Yemen. Ask why none was imposed on Turkey or Lebanon.

Iraq has been removed from the list and the ban on travelers from Syria is no longer indefinite. The 27 January Executive Order, that was stayed by the courts, has been rescinded making the current multiple court challenges now moot. The new Executive Order will almost certainly be challenged on the grounds of whether it follows the requirements of due process and whether it violates the First Amendment insofar as the new ban still seems to be in accord with Donald Trump’s campaign promise to implement a “Muslim ban.”

This analysis can be much briefer because, fortunately, my colleagues at the Migration Policy Institute in Washington, have addressed  this topic, specifically Sarah Pierce, an associate policy analyst there, who has dissected the new Executive Order and has written a report entitled, “The Revised Trump Travel Ban: Who Might Be Affected from the Six Targeted Countries?” which can be found at: http://www.migrationpolicy.org/news/revised-trump-travel-ban-who-might-be-affected-six-targeted-countries.

There are two core issues concerning Donald Trump’s issuance of an Executive Order under section 212(f) giving the president the legal authority to suspend the entry of all or certain groups of foreign nationals if he finds that their entry would be “detrimental to the interests of the United States.”. The first, unchanged from the 27 January illegal Executive Order, is the unprecedented extent of such a ban, at least in this and the last centuries. One has to revert to the nineteenth century and the 1882 Chinese Exclusion Act (not rescinded until 1943) for a precedent of imposing anticipatory travel bans.

Jimmy Carter’s 1980 ban on Iranians was a specific response to the hostage crisis and was not at all “anticipatory.” On the other hand, there have been a number of nationality restricted bans, particularly in the 1920s, but all of these were eliminated when the U.S. moved to universal rather than country-specific migration limitations in the 1965 Immigration Act. These had not been so much anticipatory as explicitly discriminatory The second issue is that the U.S. has already by far the most thorough vetting procedure built into its immigration service in the world. Since the rationale for the original ban and for this revised ban remains the same – that the current practices and procedures are too porous – one looks for evidence or a rationale other than an assertion to justify the revised ban.

The second issue is that the U.S. has already by far the most thorough vetting procedure built into its immigration service in the world. Since the rationale for the original ban and for this revised ban remains the same – that the current practices and procedures are too porous – one looks for evidence or a rationale other than an assertion to justify the revised ban. 

It was not available in the 27 January Executive Order. It is also unavailable in the new 6 March Executive Order. This is part of a pattern of the new Donald Trump government administration by fiat. There is no evidence offered to justify even greater heightened vetting procedures just as there is no evidence for Trump’s assertions that Barack Obama tapped the phone lines in the Trump Tower.

There is certainly a precedent for applying vetting procedures based on country of origin rather than on “risks” re an individual.  After 9/11, George Bush under the National Security Entry-Exit Registration System, imposed unpalatable and heightened restrictions as conditions of entry on 24 Arab or Muslim-majority countries, but that was a response to a very specific and dramatic event and was not anticipatory. This is quite aside from the utility or erroneous rationale for imposing such a ban. The Bush era ban led to the deportation or refusal of entry to almost 14,000 individuals in the year after 9/11. I know of no study of the impact of those decisions on the lives of these people.

It is certainly true that this order is a vast improvement over the old order. It allows immigration officers to prepare since it does not go into effect until 16 March. It does not catch people up in transit. It is no longer applicable to green card holders or retroactively applied to those who already have a legal visa. But it still creates an enormous chill and a disincentive for meetings and educational conferences to be held in the U.S. given the uncertainty of who can get in. Border control personnel have been given wide interpretive and discretionary powers. When a Canadian born woman from Montreal, in spite of having crossed into the U.S. many times previously, was refused entry this past weekend because she lacked a visa, one begins to understand why tourism to the U.S. may have declined by as much as 20% following the 27 January aborted Executive Order. One seeks security and confidence when traveling to a foreign country.

When the criterion is not criminality or a terrorist link but the determination that the individual – not assessed individually but on mass – would be “detrimental to the interests of the United States,” one can expect another series of court challenges against the need for revised vetting procedure – one rationale – when no evidence is offered that one is needed. When the criterion is so loosey-goosey, there is a good possibility that this revised travel ban will be overturned in the courts as well, but certainly not as easily as the first totally embarrassing effort. Certainly, the condition, “detrimental to the interests of the United States,” is better than no criterion and makes reference to the actual law, and certainly the specification of a number of exceptions and allowances for discretionary moves is much better than an absolute ban with no criterion and no exceptions, but that does not make the Executive Order any better in its fundamentals.

The new executive order allows case-by-case waivers and makes room for the entry of minorities persecuted because of their religion without illegally designating that religion, those with significant contacts within the U.S. and those seeking to visit immediate family members. Since the application is so discretionary, one can expect a series of decisions that will be serious embarrassments  to the United States.

There is also the problem of creating two classes of American citizens – those from the six countries affected, about 656,000 Americans, and the rest. They would not have the same access to relatives as other Americans. Further, some of them have not yet obtained a green card, that is an identifying paper granting legal permanent residence in the United States. Would they be deported when their current visa runs out? What about students on international student visas – will their status be renewed? One can make a rough estimate that the insecurity sewn into the psyches of about 100,000 people on American soil will be serious and detrimental.

This, of course, does not include those who had been planning to study in the United States. Or those even from non-banned countries who were considering the U.S., but in light of the uncertainty, may be expected to change their plans. In addition to the effects on tourists, on refugees, on potential and actual students, there is the chill on people traveling to the U.S. on business. Certainly, in the new atmosphere of intolerance, signaled and partially unleashed by these series of Executive Orders and compounded by the actual fatal shooting of one engineer from India and wounding of another, the shooting and wounding of a Sikh in his own driveway, a very wet blanket has been thrown over the beacon of America for citizens in the rest of the world.

It took a century-and-a-half to build a reputation for tolerance. It took only 30 days to demolish that reputation, an accomplishment whether the new Executive Order passes legal muster or not. The dark side of America has once again been let loose.

Further, with respect to the greatest humanitarian refugee crisis since WWII, the American cut of the refugee intake from 110,000 to 50,000 is disastrous. Just over a third of that cut came from the countries on which a travel ban was imposed and one suspects that the Trump vision for America does not include refugees no matter what their country of origin is. Canada would have to triple our intake to make up for the difference. Whenthis initiative is conjoined with a drastic cut in the American overseas aid program just when famine is devastating Somalia, South Sudan and Nigeria and is threatening Ethiopia, “America First” takes on a very sinister meaning, a definition of America going from the humanitarian leader of the Western world to a tight-fisted cold-hearted self-centred tightwad.

 With the help of Alex Zisman

Terrorism & Migration

Terrorism and Migration: Part III                                                  31 January 2017

by

Howard Adelman

What follows in the third part of “Terrorism and Migration” that was supposed to be sent out automatically last Wednesday (one of the great benefits of the new system – if I were not so technically challenged). The ending began prophetically – after all, it was written last weekend – “In Donald Trump’s Executive Order on Migration and Terrorism, in the provisions for reporting, there is no mention of an independent review as provided in section 11 of the existing legislation. There are many grounds upon which this presidential executive order may be challenged.” Judge James L. Robart, appointed to the bench by President Bush in 2004 and now labeled by Donald Trump as a “so-called judge”, is a Republican and a constitutional conservative. It was on those grounds that he issued a restraining order on the application of Trump’s executive order on migration and terror.

As he noted when grilling the lawyer from the Justice Department who could not produce a single name from one of the seven countries who had been involved in a terrorist attack on American soil since 9/11, “The answer is none.” In his appointment hearing before the Senate, he had stated, “If I am fortunate enough to be confirmed by the Senate, I will take that experience to the courtroom with me, recognize that you need to treat everyone with dignity and with respect, and to engage them so that when they leave the courtroom they feel like they had a fair trial and that they were treated as a participant in the system.” Equal treatment to all and individual treatment with respect to the dignity of the Other are foundational principles of a conservative approach to the law.

I was delighted to be proven correct in the results of the many court challenges that were launched across America. Just over a year ago, on 20 January 2016, Senator Ben Cardin (Dem. Maryland), the ranking member of the Senate Committee on Foreign Relations, introduced a bill related to the restriction of the use of the Visa Waiver Program. He had become a guru on immigration and refugee legislation. On 4 February 2017, Ben Cardin issued a “Statement on the National Restraining Order Against the Trump Travel Ban” as a response to the most widespread application of the various legal challenges successfully launched against the application of Donald Trump’s new executive order on migration.

“Our founders wisely created three co-equal branches of government, including an independent judiciary, to serve as a strong check and balance on both the president and Congress. Like the president, our judges – and our Congress – are sworn to uphold the Constitution.  When the president of the United States abuses or ignores the Constitution, and attacks the integrity of the judiciary by calling a ruling ‘outrageous’ or calls a judge a ‘so-called judge,’ he is undermining the entire system of government, not only the decisions with which he disagrees.

“The international chaos caused by the rushed and ill-conceived executive order targeting Muslim refugees and travelers is wrong and should be rescinded.  This executive order has made America less safe.  I will continue working with the Departments of State and Homeland Security as they promptly implement the court’s order to again permit the lawful travel to and from the United States. There is no way to know how many law-abiding citizens and travelers have been hurt by the president’s actions, but I will do everything in my power to minimize the damage being done.”

As I indicated above, Ben Cardin is no newcomer to the issue of migration and terrorism. Further, since the election of Donald Trump, he has been at the forefront of criticizing Trump, not as President, but in how Trump acts and serves as President. On 22 November 2016, Ben Cardin announced his intention to introduce a resolution expressing the sense of Congress (not Congress requiring) that President-elect Trump “convert his assets to simple, conflict-free holdings, adopt blind trusts, or take other equivalent measures, in order to ensure compliance with the Emoluments Clause of the U.S. Constitution,” lest dealings by Trump-owned companies with any entity owned by a foreign government “potentially” violate the Constitution. Article I, Section 9, Clause 8 of the U.S. Constitution provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Cardin went on to write, “The Founding Fathers were clear in their belief that any federal office holder of the United States must never be put in a position where they can be monetarily or otherwise influenced by a foreign governmental actor.” (Rosalind Helderman and Drew Harwell wrote an article for The Washington Post (4 February 2017) that pointed to a number of documents that confirmed that Donald Trump was still benefitting from his business.)

Cardin also opposed the confirmation of Scott Pruitt as head of the Environmental Agency, Senator Jeff Sessions as Attorney General and Betsy DeVos as Secretary of Education. He also questioned the appointment of Dr. Tom Price as “Secretary of Health and Human Services, not only because, as a member of the House of Representatives he advocated tearing apart “The Affordable Care Act” that would deny tens of millions of Americans access to affordable, quality health care coverage (70% of whom in Maryland come from communities of colour), but also because of his past opposition to restrictions on how the cigarette industry advertises and markets a cancer-causing weed,  his support for Trump’s cutting off U.S. global health funding to foreign NGOs which work on the frontlines combating many diseases, particularly in preventing the spread of HIV/AIDS.

Cardin has been clear that Trump’s Executive Order on Immigration and Refugees and the unfounded link to terrorism is but the leading edge of a much broader and more general attack on the well-being and security of Americans in the name of a totally irrelevant and very marginal fear and claim to protect that security. On the Monday following the issuance of that heinous executive order, he, along with other Senators introduced a bill to rescind the Executive Order.

It is now estimated that 90,000 individuals were immediately negatively affected by the Executive Order, quite aside from the millions around the world affected in the long run. Constituents from every part of America had loved ones temporarily detained, others denied the right to board a plane and others who decided not to travel lest they risk detention – and this does not count the citizens of all the countries around the globe, such as Canadian citizens of dual nationality, that were affected in the first iteration and interpretation of the Executive Order.

The operations of universities as well as large global corporations were detrimentally affected.  Princeton President Christopher L. Eisgruber along with Amy Gutman, currently President of the University of Pennsylvania, drafted the letter that was signed by 47 other American college and university presidents and sent to President Trump urging him to “rectify or rescind the recent executive order closing our country’s borders to immigrants and others from seven majority-Muslim countries and to refugees from throughout the world.”

February 2, 2017

President Donald J. Trump
The White House
United States of America

Dear President Trump:

We write as presidents of leading American colleges and universities to urge you to rectify or rescind the recent executive order closing our country’s borders to immigrants and others from seven majority-Muslim countries and to refugees from throughout the world. If left in place, the order threatens both American higher education and the defining principles of our country.

The order specifically prevents talented, law-abiding students and scholars from the affected regions from reaching our campuses. American higher education has benefited tremendously from this country’s long history of embracing immigrants from around the world. Their innovations and scholarship have enhanced American learning, added to our prosperity, and enriched our culture. Many who have returned to their own countries have taken with them the values that are the lifeblood of our democracy. America’s educational, scientific, economic, and artistic leadership depends upon our continued ability to attract the extraordinary people who for many generations have come to this country in search of freedom and a better life.

This action unfairly targets seven predominantly Muslim countries in a manner inconsistent with America’s best principles and greatest traditions. We welcome outstanding Muslim students and scholars from the United States and abroad, including the many who come from the seven affected countries. Their vibrant contributions to our institutions and our country exemplify the value of the religious diversity that has been a hallmark of American freedom since this country’s founding. The American dream depends on continued fidelity to that value.

We recognize and respect the need to protect America’s security. The vetting procedures already in place are rigorous. Improvements to them should be based on evidence, calibrated to real risks, and consistent with constitutional principle.

Throughout its history America has been a land of opportunity and a beacon of freedom in the world.  It has attracted talented people to our shores and inspired people around the globe. This executive order is dimming the lamp of liberty and staining the country’s reputation. We respectfully urge you to rectify the damage done by this order.

The Executive Order, instead of promoting values at the heart of America, instead of being consistent with the constitution of the United States, legalized discrimination based on religion and nationality. The fact that ALL Muslim countries were not included does not mean the order is non-discriminatory. Hitler’s action in the 1930’s initially only targeted Jews in Germany. Trump’s ban is inherently discriminatory because there is no connection between the ban and the threat, not even a thin thread of a connection let alone one that is proportionate based on the evidence. The Executive Order completely ignores the fact that America is steeped in “extreme vetting” already, for before 2017 it already took 18-24 months just for the screening process.

But what must also be noted is that the war on new immigrants and on refugees had already become part of American practice. A year ago, on 20 January 2016, the Unitarian Universalists for Social Justice sent Senator Ben Cardin the following letter:

Dear Senator Cardin:

On behalf of the Unitarian Universalists for Social Justice (UUSJ) in the National Capital Region, I ask you to urge President Obama to halt mass deportation of immigrants. These practices are contrary to our nation’s and our Unitarian Universalist values. We also urge you to vote against H.R. 4038, the SAFE Act. In addition, we continue to urge Congress to come together to pass bipartisan comprehensive immigration reform to address the needs of the undocumented and other immigrant groups which would address our broken system that cruelly tears families apart.

There are more than 6,500 Unitarian Universalists in over 23 congregations in the greater Washington, D.C. National Capital Region, and 4,654 in Maryland. Unitarian Universalists embrace a diversity of religious beliefs. We put our faith into action through social and environmental justice work in our communities and the wider world. Unitarian Universalists affirm and promote seven Principles, which we hold as strong values and moral guides. We are called by our first Principle, “The Inherent Worth and Dignity of Every Person.”

In 2013 our Unitarian Universalist General Assembly passed a Statement of Conscience on “Immigration as a Moral Issue.” Among other actions, it calls for:

  • Alternatives to detention for those not considered a threat to society and humane treatment for those being detained.
  • Preservation of family unity, including same-sex and transgender couples and families. • Provision of asylum for refugees and others living in fear of violence or retribution.

As people of faith, we are called to remind our decision makers about the worth and dignity of every person, of whatever parentage or nationality, as American society copes with immigrants arriving from around the world, especially from Central America and the Middle East.

Right now, in defiance of a court order to stop detaining children, the Obama administration has increased the detention of families by 173% over the last several months [my bold], according to the Migration Policy Institute. And now the administration has announced it will search for and deport asylum-seeking families back to the danger they are trying to escape. And they are putting this into practice, as evidenced by the very recent deportation of at least 121 families to Central America.

Our faith calls upon us to stand on the side of love and to support the human rights of all those in need of help, including undocumented immigrants and those seeking asylum from violence, repression, and extreme poverty. Nearly all religions are filled with admonitions to treat strangers among us with love and hospitality. Yet, the Immigration and Customs Enforcement office continues to detain entire families, including children, who have fled persecution, trauma, and threats against their very lives, re-traumatizing them, and threatening to deport them to the very places where their lives will again be threatened. Our immigration courts continue to deny asylum to many people who clearly do have a well-founded fear of persecution and if returned to their country of origin could face fatal consequences.

One of the most ancient, ethical injunctions on us as human beings is for the humane treatment of strangers. Our immigration policy is a reflection upon our worth as a people, and we currently fall far short of the standard. UUSJ therefore request that you: 1) Ask the President to order a halt to the actions that the Department of Homeland Security is taking against mostly Central American families and children. 2) Vote against H.R. 4038, known by the misnomer, the SAFE Act, a divisive, punitive and …unnecessary bill. 3) Continue to speak out in favor of comprehensive immigration reform legislation similar to what was contained in S. 744 that the last Congress considered. Please do everything in your power to ensure our immigration laws are enacted in a humane, just, and fair manner. If you have any questions, don’t hesitate to contacts us through our Immigration Steering Committee chair, Dean Wanderer, at deanwanderer@verizon.net or (571) 214-2710.

Sincerely,

Lavona M. Grow Board Chair UUSJ.

I think these Unitarian Universalists may now be praying for Obama to return to office even though the grounds were set when the Obama administration took defensive measures in restricting the entry of refugees in the face of enormous pressures from the Republican-dominated Congress.

There is much room for hope from the activities over the last ten days. Constitutional Conservatives are beginning to peel away from any support for Trump. The Democratic Party and its members of Congress have demonstrated that they can act together and effectively. The legal community has been aroused. Universities have come not only to recognize, but to oppose Trump insofar as his initiatives detrimentally effect their mission. People on the street and from NGOs took immediate action. Opposition has grown from the business community detrimentally affected by these decisions.

However, perhaps most revealing is the chaos from within the Trump administration. Clearly Stephen K. Bannon, who probably drafted the executive order along with senior policy adviser Stephen Miller without consulting either the State Department or Homeland Security, began to be boxed in as Homeland Security Secretary John F. Kelly began to issue orders qualifying the ban. When Bannon moved to counter this, Kelly simply said that Bannon had no position in the chain of command. At the same time, White House Chief of Staff approved new procedures for issuing executive orders. President Trump in his first two weeks had demonstrated not only his extensive ignorance, but a gross insensitivity not only to legal processes, but to administrative ones necessary to allowing any administration to function.

What started as an effort to “pause” the processing of refugees instead became a pause on issuing executive orders. But it is a pause only. Sarah Posner has already revealed that an Executive Order is in the works “Establishing a Government Wide Initiative to Respect Religious Freedom,” which would allow civil servants and others on the basis of “conscience” the ability to refuse services to everyone equally. On the basis of nativism, xenophobia and ideology of the alt-Right, efforts are well underway to undermine the principles of equality and respect for the dignity of individuals in the American constitution.

This is a real fear. But it also offers grounds for hope that the resistance to Trump’s autocratic propensities will be resisted by constitutional conservatives as well as liberals.

Terrorism and Migration: Part II

Terrorism and Migration: Part II                                                       30 January, 2017

by

Howard Adelman

If we examine Donald Trump’s executive order on refugees and terrorism, we find the following with respect to the specific countries targeted:

Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. (Sec. 5c)

I have never read a government legal document like it. It is not an office holder legally entitled by law to make such a determination that is cited, but Donald Trump personally. This occurs several times in the document and each time it stands out from the regular bureaucratese. I am quite sure that Donald Trump never read the full document that he signed – it is doubtful if he could understand it if he had the patience to read it. However, I also suspect that he personally wrote the few sections where the personal pronoun is used.

Though the press was rife with rumours that seven countries in the Middle East would be targeted, only one is specifically included for an indeterminate ban – Syria. Look at the wording. It does not say that under current American law, Syrians will be deemed a threat to the United States. It explicitly says, “I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Not Homeland Security. Not the CIA. Not the Secretary of State. Nor even I in consultation with any one or all of these agencies. Just Donald Trump need make such a determination. The entry of Syrians is to be suspended until, “I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.”

Further, “I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants (my italics) of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas (two ministers of Justin Trudeau’s government would be exempt but not an estimated at least 200 Canadians counted thus far), North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).” G-1 visas are for foreign staff from international organizations (UN or an International Mission), but not immediate family members; G-2 visas are for accredited representatives of recognized foreign governments entering to work for the UN or an international Mission, their staff and immediate family members; G-3 visas are the same as G-2 visas except they are for individuals, staff and immediate family members from unrecognized governments;  representatives; G-4 visas are for officials, employees of international organizations and their immediate family members.

These are the exceptions. But for others traveling on other visas, such as an H-1B visa issued to employees of American companies hired because of their professional, scientific and technical expertise, it is a different story. This is also the case for those travelling on various forms of immigrant visas. After Rizwan Farook, a US citizen, and Tashfeen Malik (a Pakistani, a country that does not fall under the ban, murdered 14 people in San Bernardino on 2 December 2015, Trump called for a “total and complete shutdown of Muslims entering the United States.” This was later changed to “immigration from terror-prone regions where vetting cannot safely occur.”

The promise applied to immigrants only, not those entering on tourist or student visas. Further, there was no explicit religious test in that proposed ban, only the criterion that the individuals came from a terror-prone region. The latter was to be defined under the Executive order based on a report to be compiled in the first thirty days. But until the report was prepared, visas for any Syrians, with the above exceptions, were suspended indefinitely, and from six other “terror-prone” countries (Iran, Iraq, Libya, Somalia, Sudan and Yemen) for up to 90 days.

The current executive presidential order, though tentatively referring to a small number of countries, cuts a much wider swath for suspending the issuance of visas. The ban applies to all refugees for at least 120 days. Further, the ban applies to those who already hold visas and to those who hold Green cards and even to those who might be American citizens. The onus was then to be placed on those applying to prove they did not represent a threat to the U.S.

Section 217 1/ (8 U.S.C. 1187) established what was called a 2/ program that authorized the Attorney General and the Secretary of State together permitting the Attorney General, upon consultation with the Secretary of State to waive visa requirements under certain specified conditions: for tourist visas under 90 days, for countries with reciprocal visa programs, etc. The waiver could only apply if a determination was made (section 6) that, “The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.”

Look at the widespread effects, first generally and then more specifically. One in eight Americans is an immigrant born abroad. Just from the countries specified, there were over three-quarters of a million people, one-third of whom immigrated before 1990. If their position in America was compromised, an average of approximately 10% employed in health care, business and education would be affected. 370,000 come from Iran and 170,000 from Iraq. After 60 days, depending on the contents of a report received from Homeland Security, more countries can go on the list and the period applied to the countries other than Syria mention already could be extended well beyond 90 days.

However, in a legal case brought by the American Civil Liberties Union, Judge Ann Donnelly ruled in New York that two Iraqis who had been detained could not be deported until a full hearing had been held. Hameed Khalid Darweesh had worked for the U.S. government for a decade. Haider Sameer Abdulkhaleq Alshawi had arrived at JFK to join his wife who was a contractor. Both, though not deported, would be held in a detention centre until a full hearing could be held a month from now even though they arrived with legal visas. Up to 200 others arriving from abroad were in the same boat – no pun intended.

From one company alone, Google, approximately 100 of its employees from the seven specified countries were travelling abroad either on business or vacation when the presidential order were issued. Even though they were legally working in the U.S. they will be affected by the ban and likely end up in detention centres. Google’s effort to call them to return immediately probably came too late for most of them. One traveling in New Zealand, based simply on the rumours, changed his plans and arrived back in the U.S. just before Trump signed the presidential decree. A British Somali woman traveling home from Costa Rica via JFK was not allowed to board her plane because airlines are subjected to severe fines if they carry passengers banned under this executive order as provided in existing legislation under “Carrier Agreements.”

The initial chaos in the first 36 hours since the decree was signed has been enormous. But what happens when, under section 3 (f), the Secretary of State or the Secretary of Homeland Security submits “to the President the names of any additional countries recommended for similar treatment”? Every Muslim, and even every Christian or members of other countries from dozens of countries around the world will now be under a cloud. Suddenly and virtually without warning, they could be struck down by a deluge from this ban.

Section 4 of the presidential decree dealing with implementing uniform screening standards for ALL immigration programs reads:

  • The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

This is the extreme vetting Trump promised. However, the U.S. already practices extreme vetting. On average, it takes 36 months – that is correct, 36 months – to get through 11 departments that must deal with a visa application. The new proposal simply forbids exceptions, such as exemptions in some cases for personal interviews. The ability of American corporations to hire the best and the brightest from wherever they come will be seriously undermined. Trump has introduced super-extreme vetting without any documentation on the need or any analysis of the cost-benefits and without any assessment of the effects on America’s core values.

Though not the largest quantitative effect, the suspension of the US Refugee Admissions Program for 120 days will mean that approximately 37,000 refugees who would have been admitted and who have already been slated for admission after extreme vetting will now once more have their lives suspended. It is hard to imagine what “additional procedures” would ensure that “those approved for admission do not pose a threat to the security and welfare of the United States.” The absence of evidence that this is not a mode of entry used by terrorists, or that there are other far easier methods to get into the US, let alone any humanitarian concerns, did not deter Donald Trump from insisting on such a provision given that his immune system cannot tolerate facts and his imagination produces “alternative” facts with the wave of his hands.

Trump, however, goes further. He has repeatedly said on television and in tweets that after the ban is lifted, persecuted Christians will be favoured. He insists that all refugees taken in were Muslims when, in fact, though Christians used to make up about 5% of the population of a country such as Iraq, a population that is now probably less than 1% after several decades of “religious cleansing,” Christians made up almost half the population of refugees taken into the United States, not because they were Christian, but because those Christians, like the Yazidis, were under the most severe threat from persecution. The present system already favours the intake of Christians because they are major targets of persecution. Section 5 (b) giving priority to religious-based persecution is simply window dressing likely to make little practical difference but severely compromising the universal principles on which refugee law is based.

The executive order also gave instructions to give both state and local jurisdictions greater involvement in “determining the placement or resettlement of refugees in their jurisdictions,” (5 (g)) in direct contravention to the American principle that anyone who has legal residence in the U.S., except certain individuals convicted of specific criminal offenses, shall have the full freedom to travel anywhere in the U.S. At the same time, any city that decides to be a sanctuary city for refugees will have its federal funds cut off. In other words, you can have local power if you do not want refugees, but if you do want to offer them protection, you will be economically punished.

To be continued

Terrorism and Migration: Part I                                                                      29 January 2017

by

Howard Adelman

Donald Trump is at it again. Why doesn’t he leave me alone? Why doesn’t he leave you alone? On Friday, 27 January 2017, the Office of the Press Secretary released Donald Trump’s executive order on migration, formally called, “Protecting the Nation from Foreign Terrorist Entry into the United States.” Before we go to the text itself, look at all the worry and consternation Trump has already caused simply by the preliminary leaks. His own bombast on the subject on television set off verbal brush fires all over the place. The full text can be found of numerous sites around the world; s:https://www.nytimes.com/2017/01/27/us/politics/refugee-muslim-executive-order-trump.html)

Many businesses with skilled workers from overseas employed by American companies are affected. Would the companies have to meet abroad so that these employees can attend? Would all international academic conferences have to be relocated outside the United States? What about students and faculty traveling back and forth? And consider all the private universities in the U.S. dependent on income from foreign students. There are over a million foreign students; though few come from the countries specifically boycotted, all would have to go through a rigid check system.

Look at the letter the Dean of Faculty of Princeton University felt impelled to send her colleagues this past Friday even before she could access  the full text of the new executive order. Simply based on the pre-publication media reports and the consternation they were already causing, she sent out the following letter to try to quiet the fears raging though her segment of academia.

We have received many messages from members of our community concerned about the impact of possible changes in immigration policies under the new administration in Washington. According to media reports, President Trump signed an executive order today. It has been reported that the order includes stricter immigration vetting measures and may include provisions that could impact non-immigrant visa holders as well as lawful U.S. permanent residents from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. At this stage, we do not know the content of the executive order or its impact.

We do, however, want to be prepared to support and advise our students, scholars, and others who might be affected by any changes, and to express our deep concern about any potential impact on the ability of this and other American universities to engage in teaching and research of the highest quality.

We have strongly advised students and scholars who might be affected and who have travel plans in the coming days to defer travel outside of the United States until there is some clarity and legal analysis of the situation or, if they must travel, to seek legal counsel before they do. We have also shared with potentially affected students and scholars the information we are receiving from a law firm that follows these matters closely and has advised members of our community in the past. More from Fragomen Worldwide Immigration Law Firm Alert January 25, 2017.

We wanted to share this information more broadly with all of you because many of your students or peers may be reaching out to you for information or support, and we are all affected when members of our community feel at risk. We take very seriously anything that could affect the ability of our students and scholars to engage in their scholarship. International students and scholars who have immigration questions or specific questions about their current situation should contact the Davis International Center (puvisa@princeton.edu), which is following the situation extremely closely and in the best position to provide advice or resources.

We will continue to keep you posted as we know more and we will work closely with our Princeton colleagues, peer institutions and the immigration law community to understand this and other immigration issues as they arise and to support members of our community who make essential contributions to research and teaching on this campus.

Does the new executive order include “stricter vetting procedures,” what Trump thunders as “extreme vetting”? Would the new policy impact on non-immigrant visa holders, such as individuals on student visas or teaching in the United States at universities on temporary work permits? Would the policy affect lawful U.S. permanent residents from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen who already hold permanent residence visas? Would the executive order affect teaching and research of the highest quality, or any quality for that matter? Though intended to express a concern about research in general, the effect of this quickly drafted open letter to the members of her community in the wording unintentionally suggested that Princeton was only concerned about the highest quality research? The fallout from the irrationality exuding from Washington even frazzles the minds of brilliant academics so they too misspeak.

Even more fundamentally, how does the executive order conform with existing law that in designating countries for exclusion, there must be an evaluation of the effects of such a designation “on the law enforcement and security interests in the United States (including the interest in enforcement of the immigration laws of the United States and the existence and effectiveness of its agreements and procedures for extraditing to the United States individuals, including its own nationals, who commit crimes that violate U.S. law.)” In other words, if countries are designated – as Syria as well as Iran, Iraq, Libya, Somalia, Sudan and Yemen are – without any evaluation on U.S. capacity for law enforcement or on U.S. security interests domestically and internationally and on extradition procedures, is the executive order illegal? It is noteworthy that the law firm commenting on the presidential executive order did not comment on the legality of some of its sections.

Further, though the President and the members of his cabinet are given wide discretion under existing legislation, they are all required to follow certain very clearly defined procedures in applying such a designation. And there is no evidence, and likely there is none given the very short period the Trump government has been in power, that those procedures have been followed. The issue is not only whether the ban is “inappropriate and ineffective in the fight against terror,” as the American Iranian Council has argued, but the executive order may also be illegal since there has been no effort to gather evidence to measure either the appropriateness or effectiveness in fighting terror.

What initial advice was offered? If you might be affected, do not travel. That is, you risk not being re-admitted to the United States. If you must travel and are in a situation that might be affected, get some legal advice. Immigration lawyers are about to do a booming business in the United States and around the world. Such are the affects of the blather coming out of the mouth of the most powerful individual in the world. America’s best and brightest, not any prospective terrorist, are discombobulated. This is the first paragraph of the legal advisory a top immigration law firm sent out:

President Donald J. Trump is expected to sign an executive order that will suspend the entry of foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen to the United States for a period of 30 days, according to a published draft of the order. {A report in the 26 January 2017 New York Times was cited.] The executive order is also expected to suspend a worldwide program that exempted certain visa renewal applicants from consular interviews. [See Section 8 (a)]

The focus of the panic attack was on foreign nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen or on those who hold dual citizenship for the birth place may determine whether or not the person is deemed to be a national of one of those countries. Thus, even if the person is an American citizen, if a country such as Iran insists that the person is an Iranian national, under this presidential executive order, the person can be treated as an Iranian national.

Will residents in America who have strong ties to those countries be affected, since it is the foreign country’s laws that determine whether the United States deems the individual to be a member of that foreign nation? Does the ban apply to temporary visa holders (B-1, H1B and L-1) who are currently lawful permanent residents of the United States? If so, then you should be concerned about travelling back “home” if one of your parents becomes ill. The letter from this legal firm warned about long delays in processing visa applications as a result of the executive order, since the waiver for personal interviews was removed. All applicants would have to have a personal interview.

For a government determined to whittle down bureaucracy, this perhaps illegal cancellation of existing law under section 217 2/A (8 U.S.C. 1187) applicable to countries with very low non-immigrant refusal rates will just mean many more personnel required to deal with visa applications.

Now not one of these words of the law firm or the Princeton Dean of Faculty mentions refugees, the ostensible prime target of the executive order. The momentum of this America-First inspired policy almost forced institutions and professionals to attend first to self-centred needs, those of their own community members. Those most affected and those most in need of assistance, refugees, were ignored in both the letters of the law firm and the dean. This may be the most pernicious effect of the new regime.

Certainly, there is a danger of this in Canada where officials appear primarily focused on possible negative (and positive in the case of pipelines) effects on Canada of the new Trump regime. The Minister of Immigration, who was himself born in Somalia, if not carrying a Diplomatic passport, could possibly be barred from entry into the U.S. However, contrary to the ordinary meaning of Trump’s executive order, on Saturday, the U.S. State Department “clarified” that Canadians with dual citizenship from any of the seven nations would be denied entry for the next three months. Minister Ahmed Hussen evidently got an agreement from Washington reversing this decision and that not only Canadian citizens with dual citizenship from one of the seven countries designated in the ban, but also those with citizenship from one of the countries but only permanent residence in Canada, would NOT be barred from entry into the U.S. However, an Alberta biomedical engineer, Haji Reza, born in Iran with a Canadian permanent residence card, was banned from entry into the U.S.

Further, the Minister announced that Canada would step in to invite those refused entry into the U.S. to come to Canada on temporary permits. However, though Prime Minister Justin Trudeau had tweeted: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada,” However, Canada has not yet increased its targeted intake to make up, at least in part, for those refugees denied entry into the U.S.

There is anther side, however, a more tragic side. In Quebec especially, there has been a rise of Islamophobia, inspired in part by the French government ban on wearing items which communicate religious messages – kippas, large crosses but especially hijabs. A 2015 Quebec Human Rights Commission survey “found that 43 percent of Quebecers believe we should be suspicious of anyone who openly expresses their religion, with 49 per cent expressing some uneasiness around the sight of Muslim veils.” After a note had been posted the year before on the Centre Culturel Islamique de Québec reading: “Islam hors de chez moi,” (Islam out of my country), this past year during Ramadan, a pig’s head wrapped in cellophane and tied with a bow was left on the doorstep of the centre.

Yesterday evening events became much worse. A gunman opened fire on the 40 or so congregants at that Centre. There are at least six deaths and many injured. Will Trump put a ban on travel to the United States against right wing Islamophobic terrorists?

The reality is that Trump policy measures targeting Muslims, while insisting he does not target Muslims, is contagious. Trump’s linkage between terrorism and Muslim migrants and refugees is not only dangerous to the fundamental values of the United States, not to speak of its efficient functioning, but to other countries around the world.

To be continued

Terror in America: Obama and Trump

Terror in America: Obama and Trump

by

Howard Adelman

I wrote this blog – or most of it – two days ago. But I didn’t, I couldn’t send it out. I did not like my conclusions. More importantly, the argument and evidence offered were only sketched rather than fully developed and properly supported. But, after all, this is only a blog and not an academic paper. So I invite readers to tell me I am wrong, to show me where I am wrong.

Clearly and unequivocally, Barack Obama’s greatest failure as president was in creating conditions which allowed Donald Trump to succeed him. Or is this assertion not so clear and unequivocal? Was Donald Trump elected through a confluence of external factors that had nothing to do with Obama – the FBI Director intervening in the election eleven days before most ballots would be cast with information that the FBI was investigating an additional trove of material that might (it never did) throw further light on Hillary Clinton’s use of a private email address and unprotected server. Russian hacking into the Democratic Party communications and releasing the information to Wikileaks may have done the critical damage. After all, Trump won Wisconsin by only 22,000 votes, Michigan by only 10,700 votes of 4.8 million cast, .002%, two-tenths of one percentage point, of the ballots cast in that state. Trump won Pennsylvania by 49,000 votes out of 6 million, .008 or 8/10ths of one percentage point. Poor Democratic party organization in those competitive states may have cost the election. Bur perhaps the loss also occurred because Obama had forged a role for himself right from the beginning as a president above the fray. Though he tried at the end, he clearly had difficulty in parting from his self-created image to pin the tail on the donkey. Perhaps this was because he was still blindfolded.

Look again at Obama’s farewell speech. What were the threats he pointed to as dangers to America? “A shrinking world, growing inequality; demographic change and the specter of terrorism — these forces haven’t just tested our security and our prosperity, but are testing our democracy, as well.” But how does a shrinking world or demographic change threaten democracy? And why are they put on the same level as growing inequality and terrorism? And to what extent was terror a real threat? Further, if, under Obama, the trend to increased inequality had been reversed, why not point to that rather than “growing inequality?” “Democracy can buckle when we give in to fear. So, just as we, as citizens, must remain vigilant against external aggression, we must guard against a weakening of the values that make us who we are.” Rather abstract and indirect if Obama was referring to Trump as a fear-monger indifferent to core values Americans hold dear.

But look when he pivoted to specific types of examples in the next paragraph – put the fight against terrorism on a “firmer legal footing,” end torture, close Gitmo, reform laws governing surveillance, and protect privacy and civil liberties.  These are all pretty remote from the concerns of most citizens. Does anyone believe that even one of these issues, let alone all five, mattered to a single one of Trump’s supporters? If Trump voters were afraid, it could possibly be from terrorists, but I will try to show that it was not and could not be. Nor was it a failure in due process or protecting terrorists from being tortured. Trump supporters could not care one whit about Gitmo, except perhaps what it costs to keep the few imprisoned there, if they only knew the actual costs. (In 2015, it was $445 million for the 41 prisoners still there, almost $11 million per prisoner.) In the election, they seemed more interested in their own fellow citizens being careless with information under their control than others looking at that information, including either their own government or a rival foreign power.

This is written with no criticisms of whether the goals Obama named are laudable. They clearly are for any small “l” liberal. But the implication of the remark is that Trump supporters were allowing their heroic leader to stir up fears that then trumped their concerns for individual liberty, freedom and respect for law. However, they were not primarily concerned with individual liberty, freedom and respect for law. And rather than terrorism being a major threat, it was not and was not even perceived to be a major threat. If it were, they could pay far more attention to home-grown terrorists, and, as we shall see, they were fully justified in largely ignoring that magnified threat.

Much more importantly and justifiably, they would be concerned with the scourge of gun violence that killed far more Americans than all the foreign wars in which America has been involved over the past eight years. From 2001 to 2014, over 440,000 people died from domestic gun violence in the U.S.A., almost 34,000 on average per year. In contrast, in the Afghanistan War, America lost 2,734 military personnel between 2008 and 2016, about 342 per year, or about 1% of those who died from gun violence in the U.S. In the Iraq War, there were only 591 deaths in those same 8 years, for Obama began withdrawing most American troops from there shortly after he took office. The death toll averaged 74 per year, or two-tenths of one percent who died from guns on American soil. In both operations, the death total has fallen dramatically during Obama’s second term.

I received the following feedback from my initial draft from a regular reader. “Again, those Americans for whom owning a weapon is sacrosanct do not look at deaths resulting from gun violence in an abstract way.  If they are the ones shooting the bastard who dared to look at them the wrong way, then that is justice served, their way: the customary method of settling disputes.  This is fierce individualism, protective macho gesture taking things in your own hand.  You do not need no namby-pamby principles, just a secure hand and a functioning gun.  They do not advocate for the right to bear firearms as a principle, but as a licence to take care of business, without the interference of government authority.  Of course, sometimes they are the ones who get shot: then all hell breaks loose: individual particular self-interest, not universal principles guide the actions.”

I will come back to the figures above in a blog on foreign terrorism, but note who died. In 2015-2016, three Americans died assisting Iraqi domestic military forces in the fight against ISIL terrorism – 31-year-old Navy Seal Petty Officer 1st Class Charles Keating, 27-year-old Marine Staff Sergeant Louis Cardin on his fourth deployment overseas, and 39-year-old Army Master Sergeant Joshua Wheeler, who left four children fatherless; he was also on his fourth deployment and had earned 11 bronze stars. The cost in the lives of American military personnel overseas fighting terrorism has been relatively very small, but the sense of who they were has been very large.

In this blog, I will focus on the alleged threat of terrorism within the United States to democracy. Examine the list of major violent attacks within the United States when Obama was president:

  1. Binghamton, New York, 3 April 2009 on an immigration centre; 14 killed, 4 injured
  2. Fort Hood, Texas, 5 November 2009; attack on the Soldier Readiness Center there; thirteen were killed and 44 injured
  3. Tucson, Arizona, 8 January 2011. At a supermarket political meeting, Representative Gabrielle Giffords and 12 others were severely injured and U.S. District Judge John Roll as well as five others were killed
  4. Aurora, Colorado, 20 July 2012; 12 killed and 58 injured in shooting attack at a movie theatre
  5. Newtown, Connecticut, 14 December 2012; elementary school shooting attack
  6. Boston Marathon, 15 April 2013; 3 killed and 264 injured by two bombs, and later, 1 police officer killed and 1 injured in the capture of the bomber
  7. Washington, D.C., 16 September 2013; at the Navy Yard – 13 killed & 3 injured
  8. Fort Hood again, 2 April 2014; 3 killed and 16 injured
  9. Las Vegas, Nevada 8 June 2014; 2 police and 1 civilian killed in shoot-out
  10. Chattanooga, Tennessee, 16 July 2015; 4 marines, 1 sailor, 1 policeman killed
  11. Roseburg, Oregon Community College, 1 October 2015; 9 killed & 9 injured
  12. San Bernardino, California, 2 December 2015; 14 killed and 21 injured
  13. Orlando, Florida, 12 June 2016; nightclub killing of 50 and 53 wounded
  14. Dallas, Texas, 7 July 2016; 5 police killed & 8 injured by a sniper
  15. Baton, Rouge, Louisiana, 17 July 2016; 3 police killed and 3 injured
  16. Fort Lauderdale, Florida, 8 January 2017; 5 killed, 6 injured.

These sixteen were major attacks classified as criminal, terrorist-Islamic, terrorist-right, or terrorist-left; 5 of the 16 fell into the classification, terrorist-Islam. But a closer examination of each of those cases raises serious doubts about the classification for at least one and probably three of them. In the 2009 Fort Hood, Texas attack on the Soldier Readiness Center, the perpetrator was Nidal Malik Hasan, a military psychiatrist identified over the previous decade as having serious psychological problems. In the last few years, he identified as a religious Muslim, but there was no connection ever discovered with radical Islamicist terrorism. Any reasonably objective analysis would conclude that this was a case of a criminal act by a deranged perpetrator who rationalized his action in terms of Islam, extremist Islam.

In contrast, the Boston marathon attack in April 2013 was a clear case of Islamic terrorism, though not carried out with any direct links to terrorist organizations, Islamic or otherwise. Dzhokha Tsarnaev was 9-years-old and his brother, Tamerlan Tsarnaev, was 16-years-old when they immigrated from Eastern Europe to the U.S. They became self-radicalized Islamicist terrorists. In another case, that of the 2015 Chattanooga Tennessee attack and killing of military personnel, Muhammed Youssef Abdulaziz was born in Kuwait and immigrated to the U.S. at the age of 6. His father was a Palestinian radical of the Hamas variety. Yet he too could be classified as a home-grown Islamicist terrorist without any known links to extremist groups abroad or domestically.

In the Chattanooga attack on military personnel in 2015, Muhammad Youssef Abdulazeez had substance abuse (sleeping pills, opioids, and painkillers) and alcohol problems. He was also suffering from depression and under his parent’s health insurance plan, was ineligible for treatment in a rehabilitation centre. He may also have been suffering from bipolar disorder. This was another case of an act of violence that took place under the banner of Islamicist terrorism that would be better classified as a criminal case of murder resulting from a deranged person.

The second deadliest attack during Barack Obama’s term took place in San Bernardino in 2015. Syed Rizwan Farook and Tashfeen Malik, a married couple, were the perpetrators. This was also a case of home-grown, self-radicalized Islamicist extremist terrorism, though inspired by foreign Islamicist terrorism, more specifically, ISIL which claimed them as “soldiers of the caliphate.”

The deadliest attack took place in Orlando, Florida on 12 June 2016. The devastation in that nightclub killing in which 49 were killed and another 53 injured, was caused by 29-year-old Omar Mateen. He was clearly a disturbed individual. He failed to become a state trooper and a prison guard and was working as a security guard. The psychologist who signed his papers permitting him to own a gun had never interviewed him directly and was fined for this lapse. Though his action, in his own words, was instigated by American airstrikes in Iraq and Syria, his history included a record of a number of threats to kill people that had nothing to do with religion.

In sum, only 2 of the 5 alleged Islamicist terror attacks and 2 of 16 terror attacks in general within the United States could be clearly and unequivocally classified as Islamicist terror actions. The three other cases were carried out by Muslims who claimed to be inspired by Islamic extremism, but were almost certainly cases more of mental derangement rather than religious ideology.

What are we to make of this analysis – that domestic Islamicist terror is not a real threat? Not at all. After all, none of the citations above refer to the number of alleged planned Islamicist terror attacks that were disrupted and prevented by the police and intelligence services or to those attacks in which there were only 1 or 2 casualties. However, even if account were taken of all those, the threat of domestic Islamic terror is not a significantly large problem. After all, two of the sixteen terror attacks were perpetrated allegedly by left wing terrorists and two by right wing terrorists, as many as the clearly and unequivocal Islamicist variety.

Domestic terror is not a serious threat within the United States. It does not compare in quantity to criminal terrorist incidents usually committed by people with serious psychological problems and certainly not anywhere comparable to the unique situation in America of thousands killed per year by gun violence having nothing to do with terrorism. Investing money in mental health facilities or monitoring of individuals buying guns would give far better safety and security results that the huge amounts invested in combating domestic Islamicist terrorism.

In any case, Donald Trump did not appeal to the fears of terrorism of his supporters, but to their hatred of terrorism and the religion that they felt deep-down endorsed or otherwise abetted that terrorism. Trump explicitly and repeatedly promised to “eradicate Islamic terrorism completely from the face of the earth.” Not Islamicist terrorism but Islamic terrorism! This is not an appeal to fear, but rather an appeal to the genocidal instincts we all harbour and, with the help of laws and institutions hopefully quell – to define a group as Other, as wholly other, as a threat, as a mortal threat, as a threat that the only way it can be dealt with is by extermination.

When Barack Obama reiterated that he was a liberal leader who defended liberal values, this only indicated how out of touch he was, how unsupportive the evidence was, of his position and the real danger. Packaging the threat in the language of threats to individual liberty is but a confession of the powerful forces of ultra blood and soil ethnic and religious nationalism, of demagogic populism, of a stress on strength and order rather than law and order. It is not as if Barack Obama does not know, did not know this, but that he was too circumspect in naming it and, in effect, talked beside the point. Barack Obama was perhaps not only personally guilty of mis-diagnosing the real problem in the hearts and minds of those in the street, but shared in the innocence and ignorance of those around the world who fought for liberal values in the Arab Spring, or marched in Iran, Turkey and Russia against militant dictatorships, and the women and men who filled the Washington Mall and streets around the world calling out for the protection of liberal values.

This is a war, a war being fought around the world, a war between liberalism and anti-liberalism. And the proponents of anti-liberalism are not afraid, are no longer intimidated, from defining themselves as non-liberal, as at war with liberalism and, therefore, at war with any other nation or religion that challenges their own sense of self-superiority. (Same reader commenting: “It is not so much that they are anti-liberal, but that they do not see any benefit from having liberal leaders, if they have no jobs. The liberals talk big, but the lives of the rustbelt denizens ain’t getting no better from that.  Screw the principles and the slogans and give bread. And I do not think these people truly believe they are superior: they are painfully aware of their disenfranchised status amidst the grand speeches about equality.  This much they understand: slogans do not feed hungry mouths.  And anyhow, anyone who acts superior is in fact troubled by a whole lot of inferiority complexes.  The aggression is just a protective mask.”) But until the stage of inter-nation war is reached, it is liberal values that must be struck down. Asserting that these fears are being stirred up and defending liberal values against that threat just misses the point totally. And if the women and men marching in Washington, marching in Los Angeles, marching in Toronto and marching in sixty or six hundred other cities around the world do not recognize their real enemy, then those liberals will be swept into the dustbin of history along with the defenders of a new liberal order in the Arab world, in Turkey, in Russia and in Iran.

The real threat is far, far greater than a threat to women’s rights and civil rights. The point is not to guard the values that make us who we are, but to go to war against the values who would make us something other than who we should aspire to be. An aggressive, not a defensive war was and is called for. And Obama still did not recognize this fact, or openly articulate it, when he left office. Defensive Maginot lines are one way to do battle, but such lines can always be breached by surprise and a blitzkrieg. The issue is not withdrawing from expanding democracy, defending human, women’s and LGBT rights, but fighting an aggressive war against ALL those who threaten the rights we already have won, terrorists of the left, right or Islamicist variety among them, but far more the citizens of America who do not fundamentally believe in democracy, do not fundamentally believe in rights, who believe in nation, who believe in strength and order rather than law and order, who believe a demogogic leader who will take them to the promised land where they supposedly once dwelt.

The fight against “extremism and intolerance and sectarianism and chauvinism” may indeed be of a “piece with the fight against authoritarianism and nationalism,” but if you focus your guns and your ammunition primarily on those who would assault human liberties, then the main threat is given a wide-open birth. Trump does not just represent an alternative policy option in a pluralistic system of competing positions. Trump represents the enemy that sometimes comes in the guise of Islamicist terror, but far more dangerously under the banner of free speech and democratic liberties. This is the real fifth column. This is the real danger from within. And if we are too timid to brand that threat, to name it, to diagnose it and simply rise on our pillars of righteousness to defend civil liberties, we will have surrendered the field of battle to the enemy. And make no mistake – these are enemies. Aggressive war, not a defence of old standards, is required.

Barack Obama’s failure in this area is our failure. He articulates that failure best in his eloquent and inspiring words. They appeal to his allies because we share those same values and have become timid in warring on their behalf, if for the simple reason that wars so-called in defence of those values have been fought for quite different reasons inspired by radically different motives.

Obama was no Eisenhower leading the fight for democracy. Obama was not even a Harry S. Truman capable of firing General Douglas MacArthur. We needed a tough street fighter (and former haberdasher) more than a community organizer to do battle with the real enemy within that has now taken over the White House.

With the help of Alex Zisman

One reader wrote the following:

The media is simply not trustworthy. Most read no newspapers in America. If they did use media and relied on CNN, conservatives called them the Clinton News Network. Their bias was and still is outrageous. No problem for the conservatives. FOX feeds their own bias and outrates CNN three to one. Radio is a non-existent news source. CBC here was and still is horrendously over-the-top anti-Trump. Only one Canadian pundit of note, Conrad Black, had the timbre to go against the tide. Need I remind you of the so-called pollster blunders? It was the liberal media that created these misleading reports. Did they do it deliberately? How did they get it so wrong?… Many Americans see daily carnage in Syria and watch the horror of beheadings and mass suicide bombing and wonder when it will take place in their already troubled existence. Their own USA local news deals with the 15 minutes of overnight deaths by violence of their fellow citizens. Howard, in case you missed it, so does CBC News! Their lead morning reports deal with overnight deaths by stabbing and guns, every day! Our youth wonder if the music rave events they attend will see nightclub slaughters like those of France and Florida. You, like Obama now wish to downplay the fact that radical Islam is even a problem and rationalize such efforts by telling us more people die from domestic gun violence than from terrorism. That is simply two wrongs and no rights.

A Critique of John Kerry’s Analysis Resolution 2334

Resolution 2334: Why America Abstained
Part B: A Critique of John Kerry’s Analysis

by

Howard Adelman

On 28 December 2016, in the aftermath of the passsge of UN Security Council Resolution 2334, John Kerry shared his candid thoughts on the Israeli-Palestinian conflict. Did Kerry offer any analysis of this complicated and truly dialectical history in his speech? None at all! Simplistic and misleading dichotomous thinking framed his talk. There were also factual errors. The opinion polls in Palestine now indicate minority support for a two-State solution, contrary to Kerry’s claims, though his interpretation was valid in a poll conducted at the end of 2013, four years ago. Even in Israel, support for a two-State solution had slipped to a bare majority, 51%, by mid-year of 2015. Now support for a two-State solution has also fallen to a minority there as well. Though most Israelis still believe in a two-State solution as a desirable goal, most have given up believing in such a solution as a realistic one. I think this is what Kerry was really trying to get at, but which he never articulated adequately so crowded was his text with clichés about beliefs that held little correspondence with reality.

But the basic error of Kerry’s analysis is that Kerry believes the “status quo is leading towards one state and perpetual occupation.” I do not believe this is accurate. The status quo is probably leading to the prospect of Israel consolidating its control over the Old City of Jerusalem and integrating Area C unilaterally into Israel without unilaterally transferring equivalent territory to the Palestinians. As an alternative, what chance is there that either side would accept Kerry’s Principle four, making Jerusalem “the internationally recognized capital of the two states, and protect and assure freedom of access to the holy sites consistent with the established status quo”?

This is now the crunch point of the dispute. Is it better to propose a solution which both sides oppose? Or is it better to sidestep that issue and consolidate a peace in all other areas of dispute? Kerry believes that, “It is essential for both sides that the final status agreement resolves all [my italics] the outstanding issues and finally brings closure to this conflict.” I am not so sure. I am inclined to believe that since the Jerusalem issue appears to be the one insoluble one, it may be better to sidestep it. In any case, Kerry gave no arguments to justify why all issues had to be resolved. They rarely are in peace agreements.

Kerry may be correct on another point. “The U.S. and our partners have encouraged Israel to resume the transfer of greater civil authority to the Palestinians in Area C, “but has that been “consistent with the transition that was called for by Oslo?” Only in one interpretation. And even if that is accepted, it may now be obsolete given the new facts on the ground that are indeed now irreversible. Israel will continue to exercise protective military control over the settlements not in Area C, but integrating them within quasi-Israeli borders still seems decades away. In the meanwhile, there is no sign of any diminution of Palestinian governance over Gaza and over the rest of the West Bank. That is a terrible scenario as far as I can evaluate. But it is far more realistic than the picture Kerry paints of the present and immanent danger and one that has allowed him to opt for mistaken policies and very weak defences of those policies.

While Kerry went into far greater detail in depicting the violence perpetrated by Palestinians than Samantha Powers did in her UN speech on 23 December 2016, a speech directly lauded by the Palestinian Authority, Kerry’s speech, which was indirectly praised by the PA, did not explain why the Palestinian violence alone that he described, and that was not depicted in the Resolution, did not offer sufficient reason for the U.S. vetoing that Resolution. After all, the Resolution deliberately avoided pointing out an agent behind Palestinian violence. The PA, as Kerry himself noted, only paid lip service to non-violence and cooperating with the Israeli authorities in repressing political organizations behind that violence, while they feted and honoured terrorists.

Kerry in his speech said that, “Israel has increasingly consolidated control over much of the West Bank for its own purposes, effectively reversing the transitions to greater Palestinian civil authority that were called for by the Oslo Accords.” The first part of this assertion is accurate. The second part is not. The transition to greater Palestinian authority in Areas A and B, not to speak of Gaza, has not been reversed.

The Oslo Accords, as we have said, divided the West Bank into three areas, A, B and C. “Land in populated areas (Areas A and B), including government and Al Waqf land, will come under the jurisdiction of the Council during the first phase of redeployment” and was referred to as the “populated areas.” Area C consisting of the areas of the West Bank outside Areas A and B. In Area A, the PA was responsible for both administration and internal security. It originally made up 3% of the whole area and now makes up 18% of the area under complete PA control. Area B consists of about 22% of the West Bank and is under Palestinian administrative jurisdiction, but joint Israeli-Palestinian internal security. There are NO Israeli settlements in Area B. Palestinian authority has been strengthened in Areas A and B, discounting the loss of legitimacy resulting from its own ineptness in governance.

Area C is the problem. It consists of just over 60% of the land area of the West Bank, but only 100,000-150,000 of the 2.75 million Palestinians living in the West Bank live there. The lower figure is closer to the number of Palestinians who now actually live there. The latter figure in the range refers to the number that lived there at the time the Accords were signed. Israeli policies have encouraged an out-movement. Israelis are notorious for NOT granting building permits to Palestinians in Area C. In contrast, the 110,000 Israelis who lived in Area C in 1993 has grown to almost 400,000. Demographics have been at odds with the requirement of Oslo that Area C “will be gradually transferred to Palestinian jurisdiction in accordance with this Agreement.”

Thus, the numbers cited by Kerry re settlements are more or less accurate and correspond to the figures for settlements that I cited. Does the strengthening of the settlements east of the security barrier point to a trend to eliminate Palestinian control over that territory? How can one expect 80,000 or 90,000 or even double that number, 150,000 settlers in that territory ever offset the huge disproportion of a Palestinian population of 2.75 million? Whatever Israel does to thicken those settlements, the likelihood of their being incorporated into Israel is remote. The most that can be realistically expected is that they will remain in a sovereign Palestinian authority just as there are Palestinian towns, villages and neighborhoods within Israel. I simply disagree that these settlements make it “that much harder to separate,” that much harder to transfer sovereignty let alone to imagine such a transfer. It is quite easy to imagine and not that much more difficult to realize the transfer. Unless, of course, one accepts the principle that Palestine as a state should remain Judenrein.

There is a distinction between referring to the intentions of the Oslo Accords and the realization or failure in their realization. When we factor in two other elements, context, such as what followed the transfer of Gaza, and consequences, the huge increase in the number of settlers and the decline in the population of Palestinians, the explanation for what has happened over almost a quarter of a century can be attributed to either or both Palestinian malfeasance and Israeli bad faith in its failure to live up to its commitments, in different proportions depending on your information, point of view and ideology. But if we focus on consequences rather than argue about causes or commitments, we enter a reality whereby Israel will never transfer all of Area C and evacuate 400,000 Israelis. It was barely able to succeed in transferring 9,000 from Gaza. The most that can be realistically envisioned is a transfer of some of the territory in Area C along with land now in Israel to make up an equivalent total land previously in Area C.

Kerry stated that, “Now, you may hear from advocates that the settlements are not an obstacle to peace because the settlers who don’t want to leave can just stay in Palestine, like the Arab Israelis who live in Israel. But that misses a critical point, my friends. The Arab Israelis are citizens of Israel, subject to Israel’s law. Does anyone here really believe that the settlers will agree to submit to Palestinian law in Palestine?” Well you may also hear it from critics of settlements such as myself and, as I have heard directly from a Fatah leader, we believe that some settlers would agree to submit to Palestinian law rather than return to Israel proper. In any case, the choice would be for them to make. As it should be, rather than a forced evacuation of those settlements.

Kerry is absolutely correct that those settlements cannot remain either as enclaves of Israel or as enclaves within a sovereign Palestine protected directly by the IDF. Kerry is wrong, however, that Palestinians do not have equivalent rights to build in the territories they control administratively, as all the cranes in cities such as Ramallah indicate. The problem is I Area C. Kerry is also correct that the land on the other side of the barrier cannot be broken up further if a viable Palestinian state is to be created. But does Kerry believe that this can only be accomplished by dismantling those settlements? How does he believe that this would be politically possible? At one time, it could have been. But it is far too late for such a possibility. There is no question that the settlements on the other side of the barrier pose a challenge in a peace agreement. But not an insurmountable one. Not a problem close to that of the Old City.

Further, Kerry is correct that Israel has openly discriminated against Palestinians building in Area C. Demolitions of Palestinian structures have increased. The only way this will be settled is through some kind of a peace agreement, but there is little prospect of that if the dismantling of settlements are made part of the equation. To repeat, it is just too late for that now.

There is the other matter of the illegal outposts under Israeli law, sometimes located on Palestinian owned land. Would the enforcement problem towards these outposts shift if there was international recognition that the main bulk of the settlements would be integrated into Israel in exchange for a land swap and that the other settlements on the other side of the barrier would be permitted to continue, but only if the settlers there recognized sovereign authority held by the Palestinians? If Israel domestic law is extended to the settlements in Area C inside the separation barrier, just as it has been to the Jerusalem neighbourhoods built on the other side of the Green line, why would that threaten the possibility of peace if that peace agreement as thus far articulated includes those areas within Israel?
If one focuses on the extremist one-state advocates who decry a Palestinian state and the Hamas extremists who deny the legitimacy of Israel, then is Kerry not parroting the same distortions that Samantha Powers lambasted the UN for? But if Kerry were truly both honest and fair,t, he would have to oppose the Resolution. But the Obama administration clearly supported it with qualifications about the wording around violence and the U.N.’s past positions on behalf of Israel.

Kerry argues that the danger is a unitary undemocratic Jewish state of Israel permanently ruling over an unequally-treated Palestinian population. Why is this suddenly an immanent danger? Surely the trends in 2007 when Obama first took office were almost as great then or greater. There has been a degree of quantitative difference since then, but nothing qualitative. Kerry is correct. There are no answers if Israel becomes a fascist apartheid state ruling over almost 3 million Palestinians. But does the de facto support for Resolution 2334 undercut that possibility or is it more likely to increase its probability, even if still improbable at this time?

Why does Kerry not plug for a realistic two-State solution based on previous agreements between Israelis and Palestinians? Why provide de facto support for a Resolution that makes the armistice lines prior to the 1967 Six Day War as the reference point for resolving the problem and does so without referring to “the mutually agreed swaps” referred to as a basic principle in Kerry’s principles at the end of his speech and even in the Arab Peace Initiative? Admittedly, the U.S. sits between a rock and a hard place. Did its defence of Israel in the past without the current pressure of Resolution 2334 possibly encourage and/or facilitate the growth of extremism? This is a possibility. But Kerry’s analysis does not answer that question or even ask it.

Instead, Kerry insisted that the Obama switch to allowing a de facto Resolution so one-sided criticism of Israel to pass was a last ditch effort to preserve a two-State solution. If he had analyzed the various possible two-State solutions and indicated which forces are in play reinforcing one rather than another and then concluding how such an analysis affected American policy, one might give him greater credit. But when he holds out the fear of an undemocratic Israelis state ruling over 2.75 million Palestinians in perpetuity instead of considering what elements need to be put in place to ensure this remote possibility never becomes an immanent one, then it s very difficult to take Kerry’s position as serious. Is it possible that all of the impotent efforts of the UN to put pressure on Israel on dismantling ALL the settlements has strengthened the right and the resistance to Palestinians having their own state?

I have opposed settlements for five decades. So has the U.S. So have the Europeans. John Kerry offers an alternative solution as if he has suddenly discovered that the settlements have reached the stage where the two-State solution has been undermined. But U.S. administrations have always opposed settlements as obstacles to peace. And, in my estimation, they were correct to do so. But just when the time has come to forge a realistic solution that takes account of both the settlements and Palestinian aspirations, a pile up on Israel takes place. Does anyone believe that this will encourage such a stubborn and stiff-backed people to back down, especially when Donald Trump is soon to assume power and the right controls the government of Israel?

Kerry argued that if the U.S. had not abstained but had vetoed the resolution, the U.S. would have given Israel “license to further unfettered settlement construction that we fundamentally oppose.” Did the Obama administration give unfettered licence for Israel to expand settlements over the last eight years when it did not allow a U.N resolution selectively critical of Israeli settlements? U.S. Policy, as Kerry repeatedly said, always opposed settlements. Why would licenced be given now to support the growth of settlements but not before? Perhaps Kerry, without admitting it, wants to say that in vetoing and resisting previous UN resolutions in the past zeroing in on Israel and its settlement polices, the U.S. inadvertently gave a licence to expand settlement.

Obama has been a great president and a strong friend to Israel. John Kerry has been an excellent Secretary of State and one truly devoted to resolving the Israeli-Palestinian impasse. But his position recently has been ridden with inner contradictions. And his defence of his de facto support of the Resolution is weak and contradictory. If Resolution 2334 “simply reaffirms statements made by the Security Council on the legality of settlements over several decades,” why is so much emphasis given to the 1949 armistice lines as a reference point? Why has the U.S. shifted from calling the settlements an impediment to peace to calling them illegitimate and then shifted once again to calling them illegal?

I believe they are illegal according to most interpretations of international law. But why this shift so late in the Obama presidency and with so one-sided a resolution? Further, there was not just the reference to Eastern Jerusalem that includes the Old City that was problematic, it was the reference to eastern Jerusalem including the Old City as Palestinian territory. Does not this prejudge an outcome if the premise is self-determination of the largest community in an area? Why is that not the premise for Area C?

Further, Kerry’s second principle for a peace agreement required withdrawal for territory occupied in the Six Day War. He did not say “all” territory. But he also did not say that that clause of Resolution 242 also deliberately omitted the reference to ALL the territory. Why did John Kerry not make that clarification in his speech?

Kerry, to his credit, did spell out the terms now generally acknowledged by both sides to deal with the refugee issue that at one time appeared to be the most intractable problem. Return was omitted. “As part of a comprehensive resolution, they [the refugees] must be provided with compensation, their suffering must be acknowledged, and there will be a need to have options and assistance in finding permanent homes.”

Of course, the U.S. was not the manipulator behind the scenes in drafting the Resolution and pushing support for it. Such an interpretation is but part of a post-fact world. But this does not require an assertion, also made by Samantha Power, that “we [the U.S.] could not in good conscience veto a resolution that condemns violence and incitement and reiterates what has been for a long time the overwhelming consensus and international view on settlements and calls for the parties to start taking constructive steps to advance the two-state solution on the ground.” As I have written, the condemnation of violence was pro tem and had none of the specificity re agency or persistence contained in Kerry’s speech. The Resolution was not “about actions that Israelis and Palestinians are taking that are increasingly rendering a two-state solution impossible.” It was barely about Palestinian actions. And it never adequately demonstrated why those actions – by Israel or the Palestinians – made a solution not just difficult, but impossible.
“Further, to reiterate, if that Resolution was reasonable enough to allow de facto passage, why were not numerous other previous ones that differed very little from this one? The problem is that Kerry’s defence of the new American position rested on quicksand.

The real reason for the switch, I believe, emerges in one paragraph in reference to “the unusually heated attacks that Israeli officials have directed towards this Administration.” This was quid pro quo for an irrational Netanyahu and partisan treatment of the Obama administration that destroyed bipartisanship in the policy towards Israel and had given every ground for America to desert its ally.
But more on that in the next blog on Israeli policy in dealing with the Resolution.

With the help of Alex Zisman

Demography, Settlements and Jerusalem

Demography, Settlements and Jerusalem

by

Howard Adelman

Thus far, I have attended only to the framing of United Nations Security Council Resolution 2334. I now want to turn to the nub. There are four issues, not just one. I deal with three in this blog: demography and Jerusalem as well as settlements. In the next blog, I will take up the impact of the resolution on the two-state solution and the issue of borders.

The resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” Secondly, the resolution reaffirmed “that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.” That is a mouthful. Demography and Jerusalem bracket the core thesis of settlements. The resolution demanded “that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.” UNSC Res. 2334 required the freezing “by Israel of all settlement activity, including “natural growth,” and the dismantlement of all settlement outposts erected since March 2001.

As I stated, in my next blog on Resolution 2334, I will discuss whether and to what extent the settlements “dangerously imperil the viability of the two-State solution, particularly in light of the claim of that resolution that the two-state solution must be “based on the 1967 lines.” It is certainly a key repeated theme of the resolution which insisted on non-recognition of “any changes to the 4 June 1967 lines other than those agreed by the parties through negotiations.” But then why is there no reference made to the distinctions between Areas A, B and C that was arrived at through negotiations? As I stated above, a follow-up blog will focus on border issues and the impact of the resolution on the two-state solution.

Excluding Nahal settlements established by the IDF for security purposes and outposts created by Israeli settler groups that are not legally recognized by Israel, I focus only on so-called “legal” settlements, that is, settlements authorized by the Israeli government, though they may be considered illegal by most of the international community and, in a few cases (Ofra), even illegal under Israeli law because much of the settlement was built on privately held land. Further, it is important to distinguish between and among settlements in different areas.

I already wrote about the Resolution’s reference to the wall. Many settlements are on the eastern side of the wall. Excluding the 28 Jewish settlements in the Jordan Valley (population 15,000), there are less than 50,000 Israelis living in 10 different settlements that can be considered exurbs of Jerusalem as follows:

Kiryat Arba just outside of Hebron where the patriarchs and matriarchs
of Judaism are said to be buried and where Jews continuously lived
until the Hebron massacre of 1929. 7,100
Since the settlement was re-established in 1970, 16 settlers have
been killed in 8 different incidents, just over half the number
killed by Baruch Goldstein (29) in a single massacre.
Kokhav Ya’akov about 12 miles equidistant from both the Qalandiya
Checkpoint and Ramallah. 7,300
Beit El north of Jerusalem and just east of al-Bireh & Ramallah 6,500
Site of Jacob’s dream of angels going up and down a ladder
Geva Binyamin 5 km north-east of Jerusalem 5,200
Eli, Mateh Binyamin, north of Jerusalem and Ramallah 4,100
Ofra, northern West Bank between Jerusalem and Nablus 3,500
20 km. north of the old Green Line
Most built on expropriated privately owned land, hence illegal
under Israeli law; adjacent to Silwad and Deir Dibwan
Talmon, 18 km. north of Modin 3,700
Shilo, Mateh Binyamin 45 km. north of Jerusalem 3,400
Tekoa, Gush Etzion, 15 km. south of Jerusalem & 20 km. northeast of
Hebron; 5 killed in 3 separate incidents 3,500
Mitzpe Yeriho, 20 km. east of Jerusalem; 10 km. east of Ma’ale Adumim 2,300

Total 46,600

There are also over 90 settlements west of the wall or separation barrier with a total population of almost 400,000. In addition, there are almost 180,000 living in different very familiar Jewish neighbourhoods of Jerusalem on land captured in the Six Day War in 1967 – East Talpiot, French Hill, Gilo, Giv’at Hamivtar, Har Homa, Ma’alot Dafna, Neve Yaakov, Pisgat Ze’ev, Ramat Eshkol, Ramat Shlomo, Ramot and Sanhedria Murhevet. Further, there are about 3,000 residents and 1,500 Yeshiva students living in the Old City, overwhelmingly in the Old Jewish Quarter with a very few scattered Jewish families in East Jerusalem. This can be compared to a non-Jewish population of 30,000 in the Old City and just under 500,000 non-Jews in East Jerusalem.

As I indicated in my last two blogs, ALL of these areas are considered illegal under the Fourth Geneva Convention, including the re-establishment of the Jewish Quarter in the Old City that was totally ethnically cleansed of Jews when the Jordanian government captured the Old City in 1948 and expelled all its Jewish inhabitants. Jews had continuously resided in the city for centuries. Under that Convention, it does not matter whether the case is one of a returned population or of voluntary movements as opposed to forced relocation of Israelis, these areas are all considered illegal since the population moved there after Israel occupied and annexed some of these areas after the Six Day War. Right wing defenders of Israeli actions insist they are legal under international law because a) they were captured in a defensive war; b) the territory did not previously legitimately belong to a recognized state. But most interpreters of international law simply make occupancy of a territory held by a belligerent following the cessation of a conflict as the relevant marker.

Currently, about 1 out of every 10 Jewish Israelis live in areas considered illegal under international law. International law may be an ass in not making any of these distinctions. It also may be totally ineffective. One need only recall the effort to evacuate 9,000 Jews from Gaza and the political storm that caused within Israel in the forced removal of a population living in an area lacking all the deep religious attachments of the sites under consideration. Can you imagine the effort it would take to move over 600,000? That would certainly tear the country apart. Anyone who opposed settlements all these years has to at least recognize this.

Well, what about the 65,000 living east of the separation barrier in the Jordan Valley and in the 10 neighbourhoods listed above? Many of the latter areas have deep religious significance for Orthodox Jews. Why do they have to be evacuated? Why could the population there not continue to live in a Palestinian state? After all, almost 1.5 million Arabs live within the Jewish state. This was precisely the question asked courageously by a Palestinian law student who was head of the youth wing of Fatah at a conference at al-Qds University that I attended. But then, what about all the settlements west of the separation barrier? If they stayed in Israeli hands, then Israel would be acquiring territory by force even if subsequently ratified by negotiations. After all, in the Oslo talks, the Palestinians had agreed to a land swap of an almost equal amount of territory in exchange for the territory on which these settlements were located.

Recall that the resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” It did not call for a swap. It did not call for returning the settlements east of the separation barrier to a nascent Palestinian state, but leaving the settlers in place. The resolution condemned the whole effort to settle Jews on land cleansed of Jews between 1948 and 1967 whether or not they lived on that land prior to 1967. Why 1967? Why not include the territory captured by the new state of Israel in the 1948 war?

The answer is simple. If you go back to 1948 for the Jews, you have to go back to 1948 for the Arabs and the territory was not sovereign Arab land then. In particular, in the 1947 division of territory recommended by UNSCOP, Jerusalem was to remain an international city under UN auspices. But the two principles pushing the members of the Security Council last week were: 1) no acquisition of territory by force and then by movements of people into a territory; and 2) the principle of self-determination, namely that a territory should become the sovereign land of the national group constituting the largest majority in a territory. But then in the areas of settlement west of the separation barrier excluding Jerusalem proper, there are about 400,000 Jews and only 100,000 Palestinians. Does not a land swap already agreed to make sense and be worthy of endorsement by the international community? The supporters of the resolution were not being puritans about the issue. They did not condemn the occupation and seizure of different parts of Jerusalem in 1948.

The real answer is that using 1967 rather than 1948 is already a compromise, but one which allows control of both the Old City as well as Eastern Jerusalem to go to a Palestinian state. And though the two sides eventually agreed on water sharing and on refugees, they could not agree on Jerusalem. Hence, John Kerry yesterday rehashing an old condominium proposal on Jerusalem that had been consistently rejected by both sides.

Further, there had been two separate thrusts to the settler movement. One was the establishment of secure borders for the Jewish state. Second there had been the claims made by the Israeli right for sovereignty over the whole of the Mandate territory. The current right wing government in Israel includes heirs to that belief. They repeat the mantra and make most members of the international community believe that this is the ultimate goal of the settlements and not a two-state solution.

In the Oslo Accords, the territory of the West Bank had been divided into three zones. In zone A, the Palestinians had exclusive administrative and security responsibility. In Zone B, the Palestinians exercised administrative responsibility but security was a matter of joint responsibility. In area C, where most of the populated settlements are located, Israel retained both administrative and security control. The jurisdiction of the Israeli municipal regional councils cover almost two-thirds of Area C. Palestinians are forbidden according to their agreement to engage in construction and development in area C. Therefore, some could with some legitimacy claim that the settlements could now be said to have taken place in this area by agreement.

The resolution did not condemn settlement activity only in areas outside those in which Israel had been given the right to control and settle by previous agreements. Rather, 1967 and the old green armistice line became the dividing line. Why? Because by allowing the Fourth Geneva Convention to trump agreements already entered into by the parties, the status of the settlements west of the separation barrier were left in question. So, certainly, was the status of East Jerusalem and especially the Old City.

There are other issues. Some parts of a few settlements, specifically Ofra, were built on land expropriated from private Arab citizens, contrary to the legalization of those settlements by Israel. There were issues of division over water supplies, the provision of access roads and the provision of equality of water and sanitary sewers available to Palestinian towns in comparison to the Israeli settlements. Often, this was not because of intent but because of the difficulty of getting the two sources of authority to agree, especially when one authority disputed the legitimacy of the other. As a result, Israeli settlements enjoy advanced infrastructure; the nearby Palestinian towns do not. Further, Jewish settlers in the West Bank remain and retain full Israeli citizenship while Palestinians in Area C live under martial law.

I have concluded that the resolution is not really about the settlements, but about the status of East Jerusalem and the Old City and about using the humanitarian laws of war as leverage on behalf of the Palestinians who are in the much weaker position. Unable to defeat the Israelis militarily with or without the help of the Arab states, the Palestinians have enlisted the international community using international humanitarian law, diplomacy and economic pressure to confront the Israeli settlement policy.

There is, of course, for many Israeli Jews, and now perhaps most, the issue of the right to settle and live in the West Bank. Eugene Rostow wrote resolution 242 which ended the 1967 war. He has always claimed that it gave Jews the right to settle anywhere in the old Mandate territory since the resolution did not obligate Israel to return ALL occupied land, but only occupied land in anticipation that there would be a future further division. Further, resolutions calling for withdrawal of Israeli forces from ‘all’ the territories were defeated, not only in the Security Council but in the General Assembly as well. The 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Status Agreement specify that the issue of settlements was to be negotiated and neither accord prohibited Jewish settlements in the West Bank. However, the international community has come to the conclusion that in the over two decades since, it is Israel that has been the obstacle to concluding a final two-state solution. It is Israel that has been using the interim period to predetermine the results of the permanent status negotiations.

The mantra at the time and continuously preserved, but with a seriously diminished status, has been the refrain, “secure and defensible borders” when Israeli settlements and the wall were intended to put facts on the ground that would help predetermine the outcome instead of waiting for “secure and recognized borders” to be determined in negotiations. The number of applications for new homes in the West Bank continues to grow with almost 4,500 applications in 2015. The equivocation of diplomatic linguistic compromises allowed others to interpret the requirements of Resolution 232 in very different ways, and in a way that seems to have displaced its previous emphasis on security. Israelis have always contended that the old Green Line, the armistice line determined by the ceasefire agreement in 1948, was NOT a border and should not be used as a reference for applying international humanitarian law. Israeli courts have upheld that opinion, but the international court in The Hague did not in its advisory and non-binding opinion.

The situation had now been radically changed by the resolution at the same time as Donald Trump is coming into office and the Israeli right wing government is reacting to the passage of the resolution with very aggressive diplomatic and economic moves putting, as I will argue in my next blog, the prospect of a two-state solution in never-never land. The debate may be conducted over the rhetorical issue of whether Israel is an occupying power when the territory occupied did not legitimately belong to another state and, therefore, was not foreign territory, but the debate will be won, not in the diplomatic halls or through international and domestic courts of law, however useful they have been, but in power games which Netanyahu and the new Trump administration seem ready and eager to play.

With the help of Alex Zisman