The Binding of Isaac

The Binding of Isaac (Akedah Genesis 22:1-24)

by

Howard Adelman

It is not enough that the parsha of the past week (Vayera Genesis 18-22) is an amalgam of so many short stories – the strangers who visit Abraham and ask after his wife; the story of Sodom and Gomorrah; the miraculous birth of Isaac and the expulsion of Sarah and Ishmael as well as the concluding binding of Isaac – but the key and final one has so many different inconsistent interpretations at the same time as it is generally regarded as the central and most important narrative of Judaism. Let me begin with a simplistic classification of various interpretations, simplistic because it emphasizes differences more than overlaps, and simplistic because it ignores the many variations within each type. Keep in mind that hermeneutics cannot be separated from the interpretations and lessons for life implied in the different interpretations.

I Ethical Superiority

One of the strongest traditions of interpretation is to regard the story as a tale of the superiority of Israelites compared to the surrounding tribes and the superiority of the Jewish God to competitors such as Baal. Non-Israelites sacrificed children to their god; the Hebrews did not. This story is the instantiation of that ethic. Abraham’s action is one of obedience, but not of blind obedience. The tension exists between two imperatives at work in Abraham – the imperative of faith and the imperative of love for his son. Man’s inner conscience is reconciled with God’s will where a balance is struck between the divine and the human.

However, the emphasis is on God’s original intention rather than on an evolving ethos in which humans play a major role. Obedience is favoured because ritual observance is at risk if the priority is not given to obedience. themselves embody the tension rather than overcoming them. Though that law is fallible, it is still rooted in divine authority that demands respect even as one debates the meaning and implications.

II Evolutionary Ethics

The above position is criticized for stressing the binding of Isaac as akin to the binding of all Jews to follow traditional Halakhah. This evolutionary ethical school tends to emphasize reason over obedience and takes ritualist observance off its lofty pedestal for a number of reasons. In the contemporary world, for most Jews observance and adherence to Jewish values are weakened rather than strengthened by emphasizing strict obedience. Further, norms have different roles and interpretations in different historical and cultural contexts. They are justified by a multiplicity of values and adherence requires an act of balancing rather than repression. Further, as historical relics, they do not in the end represent original law but an accumulation of which much may be detritus.

The ancient Israelites engaged in child sacrifice. Many of the biblically mandated laws reflect the social values of the time. The issue is not Israelite superiority at the time, but the revelation of a divine direction over time as we morally intuit or use reason in interpreting Torah to discover our moral compass and comprehend the divine will. In that context, the story reflects an internal tension among the Hebrews between values that condoned child sacrifice and values that viewed child sacrifice as immoral. The lesson is not one of obedience through which one can discover God’s will, but the question and inquiry about that will as discovered through the interpretation of the narrative. In asking Abraham to sacrifice his son, what does God want of Abraham?

Thus, the tension in the story is between the antiquarian notion of absolute obedience, even in following an authoritative command that is clearly intuited as wrong, and the emerging ethos of mercy, charity and justice. The Akedah does not endorse blind obedience but insisted that obedience had to be balanced with mercy and a sense of justice. In the first version above of the tension, that of ethical superiority, obedience emerges on top. In the second version, the vote is cast in favour of human choice and sense of ethical responsibility. Thus, in both I and II, there is a partnership of man and God. In the second, the Torah is dynamic and allows for understanding and comprehending how rationality and faith can be reconciled, but in favour of reason. In the first, there is also not an either/or but a both/and wherein obedience has the upper hand.

III Evolutionary Mysticism

Evolutionary mysticism offers a radical contrast of the above two positions which view Abraham as an agent who can run on two tracks – express absolute service to God’s commands and act to balance a call for absolute obedience with an ethic of mercy and justice. Evolutionary mystical interpretations of the story offer a totally contrasting cosmology rooted in Neoplatonism and the fundamental structure of most eastern religions. A mainstream of this Jewish mysticism can be found in Hasidism and those followers of Kaballah who see the Hebrew alphabet as the key to unlocking the mysteries of Torah.

An enlightenment modern orthodox interpretation, as in the example of I above, holds that God, and the norms God bequeaths to the Israelites through the law, through Halakha, are expressions of God’s power. God demands absolute obedience even at the risk of violence and bloodshed. God is all powerful and wholly other. In that view, Abraham, in complying with God’s commands, gave testimony to such a faith even in the most excruciating case possible, a willingness to kill his one son delivered to him by a miracle in Sarah’s old age. Normal human sympathies stand at odds to obedience. Abraham demonstrates his faith through obedience and the divine reveals Himself to be a God of mercy and justice, staying Abraham’s hand.

In contrast, version II suggests that Halakha (and Torah) is sometimes immoral and that it is the responsibility of humans through their actions and interpretations of God’s will to put in place a higher morality that is part of God’s intention, if not of his apparent convictions at one point in history. The emphasis is on God’s self-revelation over time. Halakha can be immoral when it complies with a predominant morality and ethos of the time. It is the duty of humans to look into the pattern of revelation and intuit or discern God’s intention. The position, in lacking a transcendent moral compass, risks interpreting what ought to be by what is.

Evolutionary mystical interpretations of the Akeda story takes no such risk, not by expressing the absolute transcendence of God to the natural world, as in modern orthodoxy, or interpreting history as the dialectical realization of the tension between the two in favour of the emergence of a higher morality, but through a religion that unites the natural and the transcendent by making the latter fully immanent in this world in a religion of interiority as Peter Singer characterizes all mystical religious expressions. Religion is not about confrontation. Religion is not about reconciliation. Religion is about the process of harmonizing the human and the divine which are never really at odds, for the goal is facilitating the dissolution of the self in the oneness of God.

Thus, Judaism is not a story of the war between God and Baal, nor the story of how a tribe which, on the popular level, shared in the practices of Baal overcame those practices to achieve a higher ethical order, but a tale of the unity of the natural and the divine, a unity in difference, a world which in all its expressions are projections of one divine being that allows the isolated self to be absorbed in a greater unity.

In the writings of Milt Markewitz or Ken Hoffman (http://natureslanguage.com/stories/7-the-binding-of-isaac), Abraham travelled from Kadish to Shir as primarily a time of interior reflection and transformation more that a physical movement towards the mountain on which he would bind Isaac and offer his son as a sacrifice to God. The Hebrew language, and Hebrew letters more particularly, express the revelation of the one divine cosmic force that allows for rebirth in a transformed self that now enjoys a oneness with God. In the story of the binding of Isaac, the confrontational character of Abraham’s relationship with God is finally overcome. “abc

Without getting into the details and the structure of the mode of Kabbalistic interpretation, and without tasking the reader with any effort to make the interpretation clear, but to get the flavour of the interpretation, a few quotes convey the cosmological order and this hermeneutical method shown by “the Dallet in the word Kadish, and …the Vav in the word Shir,” the latter an expression of the cosmic force that facilitates a new birth, the coming into being of a new person. Instead of the divine and the human existing in tension, the story is a tale of their combination, of their merger. “This famous Biblical story is generally understood to be about G*d asking Abraham, Isaac’s father, to sacrifice Isaac. The name of this Torah portion is Aiqidat and when we look at the Hebrew spelling, there is both the recurring pattern and insight into the essence of the story…The two Cosmological forces Tav—birth, and Qof–the lifedeath-life cycle, combine to create Archetypal birth–Dallet, from which Existential possibility–Ayn, and life-death-life—Yod, emerge. Clearly, we have a story about birth, driven by cosmological forces, and full of life and possibilities.” In this interpretation, Abraham is in constant communion with God through nature.

“Revelation was facilitated by our Hebrew language, in which each character is a sacred geometry of sound and shape—a symbiotic energy with every other character. The language kept us deeply connected to place both locally and globally, as well as to time—past, present and future—from which emerged the ethics of how we must live each day. It was this language that informed us of our cosmology, and our responsibility to maintain the balance and harmony with which we are blessed.” “Hebrew is no longer a shamanic language–the characters exist as letters but their energy and meaning has been lost. Also, our oral tradition has been largely replaced with the written word. Without the language and the conversations, we’ve lost the capacity for deep understanding. You read the Torah as if you know it is Truth, but the Truth has been obscured by written words that lack energy, and, paradoxically, an ambiguity that is necessary if our stories are to retain their essence.”

A story which appears to be about a father commanded by God to kill his son is really a story about revelation, a successful test of adversity overcome to ensure perpetuation.

IV Pietism: The Story as a Conundrum of Faith

In this version, God is inscrutable. Why would He order his singular acolyte to sacrifice his beloved son who is born only through the grace of God rather than any natural pattern? Abraham obeys without challenge or question. The narrative is the ultimate expression of piety. As in the mystical version, a personal transformation takes place. There is a spiritual rebirth and renewal. But it rests not in the mystical meaning of the language of the story, but in solid everyday practices of piety and devotion, an emphasis which emerges from the tradition of the Lutheran pietism of Sören Kierkegaard who was brought up in a Moravian household that resisted the imposition of “new” catechisms and hymns that were more in tune with the times and spoke to how people behaved in ordinary life. For Kierkegaard, religion was not a mechanism for being uplifted, but a means to challenge one’s complacency and become aware of the extraordinary demands God presents to humans.

First, there is a revolt against any of the various forms of intellectual understanding of the story, whether via a mystic understanding of the secrets of the Hebrew language and its letters, an ethical comprehension of an unveiling of higher norms in history or traditional rabbinic commentaries on text that reconcile the ethical and the divine which openly stand in tension. In the existential pietism of Kierkegaard, the emphasis is on faith versus reason. What God has asked Abraham to do is absolutely unreasonable. So why in Abraham’s evident willingness to kill his own son is Abraham treated as a great prophet and closer to God than anyone except Jesus?

As in the mystical interpretation of the tale, in Kierkegaard there is an emphasis on inwardness, but not an inwardness that leads to a reunion with an all-encompassing divine cosmic force, but an inwardness expressed in decisions and actions. Abraham is not engaged in a mystical exercise. He decides to do what God tells him to do. He collects the wood. He musters his servants. He travels for three days. But in the process, he experiences not a lifting of the self into a transcendent sphere, but an immersion into the angst of the human-all-too-human. Kierkegaard in his midrash reimagines the utter despair of Abraham caught between his absolute faith in God and his total devotion of and love for his son.

True and deep religion is not reconcilable with reason but rather challenges reason’s claim on absolute authority. God is not a god of reason but a god that demands a commitment of faith by those who worship at God’s feet. The issue was not adapting the church to conform to the conventional, but challenging believers to understand the profundity and the terror of what was being asked of them.

In that sense, the Abraham of Fear and Trembling is the archetypal religious figure. Abraham is a “knight of faith,” not because he challenges the predominant ethos of Baal at the time, not because he serves as a step in the emergence of a higher ethos, not because his trip is a mystical much more than a physical one in which he is transformed and allowed to become one with the divine, but one who recognizes that what God has asked him to do is totally unethical. The test of faith is whether one is willing to obey God even when one knows that the commandment goes against all common sense, all decency and is even a betrayal of the covenant God once made with Abraham. The story is one of a teleological suspension of the ethical as Abraham absolutely submits to God’s will which is not only unreasonable but insists that reason itself must be set aside if one’s faith is being tested.

What is a contemporary Jew to make of such a schism between the realm of faith and the realm of reason and ethics? More specifically, what is a Jew to do with Kierkegaard’s portrayal of Isaac as one who does not accept his father’s behaviour but is more than bewildered? Isaac cringes. Isaac begs for his life to be spared. Isaac appeals to the memories of the joys they had together. Abraham both consoled his son and admonished him. And Isaac could not understand his father’s decisions and actions.

Isaac is portrayed as the snivelling, cowardly and conniving Jew who will use anything to save his own life and can never understand his father. And Abraham acts (it is a performance) like a wild rogue and sacrifices his son’s belief in him so that Isaac can retain his faith in God. Jews are descended of this failure to take the leap of faith by Isaac that Abraham took.

Yeshayahu Leibowitz ignored this pietist depiction of Jewish failure to accept a God who would sacrifice his only son so that humans can be saved. Leibowitz ignored the barely latent antisemitism of the interpretation. In Leibowitz’s existentialist re-interpretation of Kierkegaard’s version, unlike previously, Abraham was silenced when ordered to sacrifice his own son. Abraham does not confront God for His contradictory behaviour and the apparent emptiness of his promises. Leibowitz offers a Jewish version of unconditional faith not bound by accepted moral norms.

In contrast, and in the name of one version of evolutionary ethics, David Hartman accepted this existentialist interpretation of the tale, but challenged the binding of Isaac as the archetypal core of religious life in which Jewish survival depended upon surrender and total obedience to God’s will requiring the suspension of one’s reason and one’s ethical convictions. Instead, the archetypal story is that of Sodom and Gomorrah where Abraham challenges God with a call of the ethical. Abraham in obeying God’s crazy command is a madman who is unable to question or challenge God; he is not an exemplar of faith and courage.

With the help of Alex Zisman

Advertisements

Yom Ha’atzmaut – Israel’s Independence Day

Yom Ha’atzmaut – Israel’s Independence Day

by

Howard Adelman

It is Memorial Day for Israel’s fallen. Tonight, the celebration of Israel’s independence begins. In yesterday’s blog, I referred to three sources of discussion of Israel – one by Emanuel Adler on the drift in Israel towards illiberalism, one on the Torah justification for an independent Jewish polity in Israel and a third, the sermon in my synagogue by the Israeli Consul in Toronto. Today I will concentrate on the most basic one, the justification in the Torah, the one considered irrelevant to most Canadian Jews and most others, except for evangelical Christians. The reference to archeology, history, political realities, what Israel has accomplished in Eretz Israel, the Land of Israel, need based on security and humanitarianism as justification for the State of Israel and its domination by Am Israel (the Jewish people) awaits another discussion.

Torah study began with Rashi’s well known question of why the Torah, if it is the constitution of the Jewish people, begins with cosmology. Why does the text not start with Genesis 17:1 when God initially forges a covenant with Abram, renames him Abraham and promises that he will be “a father of a multitude of nations,” not just the Israelites or the Jewish people, but many nations. (17:4) Further, in chapter 8, Abraham is promised that, “I will give the land you sojourn in to you and your offspring to come, all the land of Canaan, as an everlasting possession.”

The answer usually given for starting at Genesis 1 rather than Genesis 17 is that it was necessary to establish that the whole earth was made by and belonged to God and that God was totally free to distribute the land to whomever He chose. Nations are not owners of the land, only trustees. Further, if the Torah is to be followed, there is no prior right to a land by people long settled there before another group of people arrived.

But there is a prior question – why refer to the Bible as a source of authority for establishing a state? Rashi comments on the first Psalm, “But his delight is in the teaching (in Hebrew, the Torah) of the Lord, and, in his teaching, he studies day and night.” Psalm 1 reads:

Psalm 1
1 Happy is the man that hath not walked in the counsel of the wicked, nor stood in the way of sinners, nor sat in the seat of the scornful.
2 But his delight is in the law of the LORD; and in His law doth he meditate day and night.
3 And he shall be like a tree planted by streams of water, that bringeth forth its fruit in its season, and whose leaf doth not wither; and in whatsoever he doeth he shall prosper.
4 Not so the wicked; but they are like the chaff which the wind driveth away.
5 Therefore, the wicked shall not stand in the judgment, nor sinners in the congregation of the righteous.
6 For the LORD regardeth the way of the righteous; but the way of the wicked shall perish.

Verse 2 makes it clear that the function of studying Torah is critical to forging an ethical life. Verse 3 declares that an ethical life is sustained by planting oneself in a land where one can be fruitful and creative, implying possibly both a physical land and a land of learning. Whatever else it will be, the land will be one based on the rule of law that must serve the development of an ethical life.

The principle of Judaism, as distinct from the reference points of other nations, including other nations descended from Abraham, is that the Torah, which initially is a possession of (not necessarily written by) God, becomes a possession of Jews when they study Torah. Jews may infer that they have rights to live in the land from their studies, but not (thus far) that they are entitled to a state of their own. Further, there is no suggestion that other nations should not live in accordance with the rule of law for the sake of forging an ethical life and do so in the land of Israel. There is no guarantee that the land of Canaan should be the exclusive territory for Jews or that it is a land on which a Jewish state should be constituted and developed.

Genesis 12:1-7 says:

1 Now the LORD said unto Abram: ‘Get thee out of thy country, and from thy kindred, and from thy father’s house, unto the land that I will show thee. 2 And I will make of thee a great nation, and I will bless thee, and make thy name great; and be thou a blessing. 3 And I will bless them that bless thee, and him that curseth thee will I curse; and in thee shall all the families of the earth be blessed.’ 4 So Abram went, as the LORD had spoken unto him; and Lot went with him; and Abram was seventy and five years old when he departed out of Haran. 5 And Abram took Sarai his wife, and Lot his brother’s son, and all their substance that they had gathered, and the souls that they had gotten in Haran; and they went forth to go into the land of Canaan; and into the land of Canaan they came. 6 And Abram passed through the land unto the place of Shechem, unto the terebinth of Moreh. And the Canaanite was then in the land. 7 And the LORD appeared unto Abram, and said: ‘Unto thy seed will I give this land’; and he built there an altar unto the LORD, who appeared unto him.

In Genesis 13:14-17, the Bible says: “The Lord said to Abram, “Lift up now your eyes, and look from the place where you are northward, southward, eastward and westward: for all the land which you see, to you will I give it, and to your seed forever… Arise, walk through the land in the length of it and in the breadth of it; for I will give it to thee.” In Genesis 15:18, the land promised becomes very extensive. “18 In that day the LORD made a covenant with Abram, saying: ‘Unto thy seed have I given this land, from the river of Egypt unto the great river, the river Euphrates.”

The covenantal promise is repeated in Genesis 17:4-8:

My covenant is with thee, and thou shalt be the father of a multitude of nations. 5 Neither shall thy name any more be called Abram, but thy name shall be Abraham; for the father of a multitude of nations have I made thee. 6 And I will make thee exceedingly fruitful, and I will make nations of thee, and kings shall come out of thee. 7 And I will establish My covenant between Me and thee and thy seed after thee throughout their generations for an everlasting covenant, to be a God unto thee and to thy seed after thee. 8 And I will give unto thee, and to thy seed after thee, the land of thy sojournings, all the land of Canaan, for an everlasting possession; and I will be their God.

There are many promises in these quotes. First, the land is promised to all the nations that spring from the seed of Abraham and not just Jews. Second, the extent of the land promised varies, sometimes extending well into Iraq and through the Sinai desert right up to the Nile River. Since various tribes of Canaanites lived on both sides of the Jordan River, the promise can even be seen to include Jordan. This is confirmed in Deuteronomy 9:1-4:

“Hear, O Israel: You are to cross over the Jordan today, and go in to dispossess nations greater and mightier than yourself, cities great and fortified up to heaven, a people great and tall, the descendants of the Anakim, whom you know, and of whom you heard it said: ‘Who can stand before the descendants of Anak?’ Therefore, understand today that the LORD your God is He who goes over before you as a consuming fire. He will destroy them and bring them down before you; so you shall drive them out and destroy them quickly, as the LORD has said to you.” (Deuteronomy, 9:1-4)

On the other hand, with respect to specific parts of that territory, there is no promise in the Torah that the seed of Judah will reside in Jerusalem, for Jerusalem is not even mentioned once in the Torah though it is referred to approximately 600 times in the rest of the Bible.

There is a more disturbing part of the covenant stated above and repeated elsewhere in the Torah: the settlement of the nations that stem from the seed of Abraham will occupy the land by means of war and not simply ethnic cleansing, but genocide, for the existing nations of Canaan will be expunged from the land: the Hittites and the Girgashites and the Amorites and the Canaanites and the Perizzites and the Hivites and the Jebusites, seven nations greater and mightier than you, and when the LORD your God delivers them over to you, you shall conquer them and utterly destroy them. You shall make no covenant with them nor show mercy to them.” (Deuteronomy, 7:1-2)

Quite aside from the extent of the land promised and those to whom it is promised, in addition to the land of Canaan, quite aside from the means of acquisition, the land of Israel is promised, not just as a place to live, as a place to thrive, but as a place to study Torah and as a place to raise ethical individuals. Further, Israel is a land where the bones of the seeds of Israel that flow through Isaac and Jacob are to be buried. In Genesis 50:4-14, Joseph keeps the promise made that the bones of his father will be returned to Canaan to be buried next to his first wife, Leah, who bore him his eldest four sons. Even, Joseph, who lived most of his life in Egypt, has his bones disinterred and brought back to the land of Canaan to be buried in Shechem (Hebron). (Exodus 13:15)

In Genesis 50:24-26, just after Joseph had ensured that his father Jacob’s bones would be buried in Israel, Joseph told his brothers and made the sons of Israel swear that, like Jacob, “you shall carry my bones up from here.” This suggests that even more importantly than living an ethical life in accordance with the rule of law on a land promised by God is the promise of burial in that land even if one is raised and achieved success in the diaspora. The fight over burial rights is not exclusive to Israel. In Canada, we recently went through the Oka crisis, a land dispute instigated by Mohawk aboriginal peoples over an allegedly sacred burial site. Near my cottage on Georgian Bay in Ontario, there was a fight over Grave Island claimed by some Ojibway as a sacred burial ground. One reason we fight over land, in addition to the right to live on it, is to die and, more importantly, be buried in that soil.

Israel, therefore, is a land where the “ghosts of the past meet the ghosts of the future,” where one’s deep seated longings are satisfied, where “my father’s store was burned there and he is buried here.” In the “port on the shore of eternity” in “the Venice of God.” (Yehuda Amichai, “Jerusalem 1967”), there shall I be buried insists the ardent Zionist.

But none of the citations of sacred text justifies a Jewish state in Israel or Jerusalem as its capital or Israel as an exclusive state for the Jewish people. Israel is a place for Jews to live, a place for Jews to die and be buried. What else justifies the independence of Israel in a specific boundaried territory? Whatever it is, the state must be governed by the rule of law and dedicated to raising an ethical people if the Torah is to be a guide.

 

To be continued: Historical and Political Justifications

The Holiness Code

The Holiness Code – Parshah Kedoshim Leviticus 19 and 20

by

Howard Adelman

Tomorrow on shabat we read one of the most important sections of the Torah, Leviticus 19-20, or the core verses of the Holiness Code which includes verses and chapters from last week’s portion (17 and 18) as well as those from the following week. (For reference, I have included chapters 19&20 as a separate blog.) Many of the core commandments of the 613 commandments governing Jewish conduct are included in this week’s portion. Any one of them is worthy of an extended commentary. It is virtually impossible to discuss all the injunctions contained in this one reading in a single blog for they are articulated so succinctly and briefly that reading these verses is akin to unpacking a box literally stuffed to the gills with moral injunctions. I want to examine more than one, however, not to analyze a single commandment, but to offer the flavour of the Holiness Code with a view to obtaining a glimpse of what it means to be holy. I will discuss the portion under four headings as follows:

I. Sex and Speech
II. Chukat Hagoyim and Loving Strangers
III. Respect, Rebuke vs Revenge
IV. Idolatry, Israel and Holiness

I. Sex and Speech

Why start with sex when discussing holiness? Why probe all the injunctions against misuse of a servant girl by a male boss (19:20), ban adultery (20:10) especially with your brother’s wife (20:21) or incest (20:11, 12, 14, 17, 19 & 20), castigate homosexuality (20:13) and sodomy (20:15&16) almost in the same breath, and then forbid having sex with a woman while she is menstruating (20:18)? Many of these are reiterations of injunctions in chapter 18. Bans on homosexuality seem totally misplaced for most of us with a modern sensibility. Adultery is not so good, but putting someone to death for such an act seems quite disproportionate to say the least. Sodomy seems more distasteful than deserving of such a harsh reprimand and saying that a servant girl should not be put to death when abused by a superior seems to perpetuate putting the blame on the female, though easing the punishment. And why is there an injunction against sex when your female partner is menstruating?

In other words, if sexual prohibitions are at once so basic and at the same time so deformed and misplaced, how can one suggest that obeying such extreme puritanical injunctions provides a path to holiness? I do not think it does. Further, the various penalties – from death to ostracism – do not seem to comport with our contemporary views of such actions or misdeeds. One predominant interpretation is that these injunctions against certain sexual conduct, allegedly profuse among the Canaanites and Egyptians, were intended to define the Hebrews as a pure and holy people in imitation of God, what Roman Catholics designate as imatio Dei. After all, they all seem to be placed in a context of being “clean,” where cleanliness is next to Godliness. And one characteristic of God is that (s)he is disembodied, does not have sex and inherently cannot be dirty.

This is the basic paradox. Humans are embodied. They have sexual drives. God is disembodied and does not need or desire to have sex. But God gave Adam a companion, Eve, precisely because Adam was a nerd and did not even recognize he had a body and needed to love and be loved. So does God want us to have sex and propagate the species? Clearly, the answer is yes. But God also commands that boundaries be placed around sexual behaviour. The reasons to me seem obvious and they are not about imitating God where holiness in the highest realm is defined as asexual. Rather, it is very practical and down to earth.

Yesterday I heard two more stories about young couples with very young children who, contrary to everyone’s expectations, broke up and are headed towards the divorce court. The epidemic – and it is an epidemic – of divided couples and marriages has to be a major concern. Adultery was involved. One partner “fell in love” with someone else. Or in another tale from the day before, one partner felt deeply dissatisfied and unfulfilled in the marriage. I am not suggesting that couples when they discover they are incompatible should remain married. On the other hand, the marriage commitment and bond should mean much more than simply abandoning a pledge because of an attraction to another or dissatisfaction with oneself and one’s path of self-realization.

That is why the sexual injunctions need not be considered as absolute puritanical injunctions, but as basic and profound guides about how a couple can realize holiness while engaging in sex and also bearing children. In other words, if we want to understand the sexual prohibitions, it will not be because we pay attention to the literalness of the commandments, but because we pay attention to their purpose related to the pursuit of holiness. And in my understanding of the Jewish religion, it is not because we envision holiness as equivalent to puritanical behaviour or asexuality, but, guides for embodied humans, thereby recognizing embodiment and how embodied sexual beings become holy.

So how is speech related to sexuality? Because it is through speech that men and women archetypically (men and men in cases of homosexual relations) initially have intercourse with one another. Recall that the use of speech was Adam’s hang up. He thought that words were all about naming and classifying and, in imitation of God, bringing something into existence by the speech act of naming and classifying. But a speech act is only asexual as a scientific enterprise. It is thoroughly sexual as a human enterprise.

Leviticus 19 verse 11 commands that you not “deny falsely” (Bill Clinton – “I did not have sexual relations with that woman) or lie. The two injunctions are different. Bill did not precisely lie, for he meant by sexual relations intercourse not fellatio. But he did deny falsely for his assertion was completely misleading. The same verse commands that humans should also not lie. Why is truth-telling the most basic injunction in human intercourse. Because truth-telling is a requisite of trust. And trust is basic to human relations.

Have I lied? More precisely, have I lied to my partner? I have. And each time that I did it was because I was a coward and did not trust my wife to respond in the way I wanted. But that is not trust. Trust entails respect and talking to another and addressing their highest natures. It is not based on fearing reprimands and scolding. Speech in intercourse must be honest, direct and based on trust. Every time I fail to follow this understanding, I betray myself, my partner or children or friend and, mostly, fail myself. Implicitly, I “swear falsely” and profane the name of God. So healthy sex and healthy honest talk are interdependent and foundational for holiness.

II. Chukat Hagoyim and Loving Strangers

If guidelines and injunctions about physical and verbal intercourse, about how to cultivate a healthy sex life and an honest dialogue between those with whom we are intimately related, are the foundation stones for a holy life, the second level of commandments address those with whom we are least intimate – strangers, particularly strangers who do not belong to our own tribe. And we all know, or should know, that the most repeated commandment in the Torah addresses how to treat strangers and then how to treat acquaintances or neighbours.

With respect to strangers, you cannot tease or belittle them and certainly not characterize them as “rapists” and “thieves.” You shall not taunt the stranger (19:33). More than that, you are required to treat the stranger as if he were a member of your own tribe. “You shall love him as yourself for you were strangers in the land of Egypt.” (19:34) On the other hand, you must also reject and ostracize strangers who cavort with Moloch, Ov or Yid’oni and even put to death any who give their children to Molech.

Who is Molech? A god of the Canaanites, a god that required child sacrifice. A holy people, immigrants and refugees, sacrifice themselves for their children. Followers of Molech sacrifice their children for themselves. That is why when we are married, have children and run into trouble, as most marriages do, the primary consideration must be not to sacrifice one’s children for the pursuit of one’s own self-fulfillment or gratification of one’s own physical desires. Now it is a rarity these days to follow that injunction. God knows, I have personally failed. But that does not detract from the value of the principle. In fact, it raises the principle to a higher value.

There is an intimate connection between the dedication to raising your children and to respecting and loving strangers, for giving of yourself for your children and giving of yourself for refugees. But not all so-called refugees. Not “refugees” who victimize children, who engage in terrorism or who exploit others. But why the demonization of those who worship Ov and Yid’oni as well as Molech? (20:6) Ov is a medium who claims direct access to the divine or nether world. Yid’oni is an oracle who claims to be a spokesperson for the nether world or the divine voice. Followers of Ov and Yid’oni are as despicable as those who follow Molech, those who follow the path of using and abusing children, sacrificing children for one’s own purposes rather than sacrificing oneself for one’s children.

What connection is there between denouncing mediums and oracles and the respect and love for children? Mediums and oracles for a holy people spout vapid nonsense. One should not follow a demagogue who promises he can lead you to the Promised Land. Only the Holy One can do that. Oracles who say “trust me” and “I know how to make a deal better than anyone” are not to be trusted. And anyone who follows that oracle because that oracle has accumulated a following also becomes suspect. There is NO privileged access to the nether world or to the future. And there should be no surprise that such oracles and mediums so often scapegoat strangers. By displacing hatred onto others and using the oracular voice, they would bewitch you into trusting them instead of yourself and your inner voice, surrendering yourself for a leader who believes in strength rather than holiness, betting on charms and omens rather than evidence and behaviour over the long run that builds trust. The pursuit of holiness does not depend upon trickery, but upon a consistent effort at honesty and truthfulness and a respect for others especially if they are strangers. The devil may not be Molech, but the devil may be Ov or Yid’oni.

III. Respect, Rebuke vs Revenge

If trust is basic, enhanced through the use of honest language and intimate physical attachment to another, if loving the stranger and evading the enchantment of those who would use and abuse children for their own pleasure, those who pretend to be mediums or oracles, on the next level of building blocks for a healthy and holy home, we locate the concept of respect. It is the first window of the second story of that home. And the most basic form of respect is that accorded one’s parents. Parents are enjoined to sacrifice themselves for their children and not sacrifice their children for themselves. In turn, children are enjoined to render parents respect and honour.

But respect extends beyond the family. You must respect not oppress the other. (19:13), neither robbing no exploiting him or her. Nor shall you curse another who is physically deaf or is out of range of your voice and cannot hear you. (19:14) You shall not diss another, whether cursing another driver who cannot hear you; in so doing, you demean yourself. If you belittle and insult another, another propensity of those who scapegoat others and put themselves forward as oracles, you undercut respect both for others and for oneself. You shall not engage in favouritism (19:15) and give greater respect to the rich than the poor, for all humans must be respected (19:16), but you certainly must respect the venerable and the elderly. (19:32)

But respect is not enough. You must go deeper and evacuate your soul of hatred. Hatred eats like an acid at your soul and is a sure guarantee preventing one from becoming holy. (19:17) And if you do not express that hatred, but feel it deeply inside, it is even worse. Better to vent than stew, but venting as a relief valve can be almost as poisonous. This does not mean you do not confront and rebuke another for their failings, for their dishonesty, for their demagoguery, for their dogmatism and for their lack of respect for others. “You shall surely rebuke your fellow, but you shall not bear a sin on his account.” (19:17)

Failure to rebuke, failure to confront, failure to express when you feel hurt by the actions of another, means that the weight of their sins will be borne by you and you will be weighed down by the inability to express what you honestly think and feel. But expressing those feelings and thoughts must be done in a context of respect for the other. Finally, if you fail to rebuke, fail to confront, if you carry a grudge and build up a store of hatred within and then seek relief through revenge, that is the final straw in betraying the commandment to be honest and respect another.

IV. Idolatry, Israel and Holiness

The culmination of these failures is idolatry. Making a molten figure into an idol is simply a metaphor for worshiping a material entity as if it were holy. The best sign of idolatry is when a leader ensures his picture appears everywhere or when a leader seeks to stamp everything with his own name. Whether one worships an idol or tries to become an idol oneself, perhaps the greatest failing of our age of celebrity worship, we indicate by such behaviour that we have betrayed the pursuit of holiness.

Let me give one perhaps trivial example, the current fad of tattooing one’s body, of making “cuts in your flesh”. For “you shall not etch a tattoo on yourself.” (19:28) Why not? What harm results? Enormous harm. For etching a tattoo into one’s flesh is an effort at make a fleeting feeling of the moment permanent and failing to recognize that things of the flesh can never be permanent. It is not because the body is God’s creation, for our bodies are made of the dust of the earth. It is not because we are enjoined not to mutilate God’s handiwork, for we are commanded as Jews to circumcise a male baby when only 8 days old. Rather, tattooing is related to idolatry, to deifying what should not be regarded as worthy in an effort to get in touch with the permanent, with the eternal.

It is clear in the Torah and it is a fear at a time of celebrating the day of Israeli independence, that Israel itself can be turned into an idol, worshiped in itself as the exceptional and the holy in total disregard of the behaviour of its politicians and its people. On the other hand, God has said to his people, “You shall possess their land, and I shall give it to you to possess it a land flowing with milk and honey. I am the Lord your God, Who has distinguished you from the peoples.” Jews are commanded to be a holy nation, a nation that gives witness to the highest values. This does not mean that other nations cannot express that role or aspire to holiness. Quite the contrary. But it is an overriding injunction for Jews as a people.

And that is what it means to be holy. It means being both intimate and honest with one’s partner, making one’s best effort at telling the truth, especially telling the truth to power, not sacrificing the lives of children for oneself but sacrificing oneself for your children, loving the stranger as oneself but never being so naïve as to fall into the bewitchment of a Molech, a medium or an oracle, not disrespecting or insulting the other, but being willing to rebuke that other when he or she offends, not building up resentments into a hateful cauldron or, at the opposite end of the spectrum, worshiping another as an idol or trying to embed in one’s own flesh a sense of permanence for the impermanent.

That is the core of the holiness code.

College Campuses, Academic Boycotts and Ethics

College Campuses, Academic Boycotts and Ethics

by

Howard Adelman

I had written that the Boycott, Divestment and Sanctions (BDS) campaign targeting Israel did not originally include the boycott of Israeli academics speaking on campuses outside Israel. The effort to boycott academics had an earlier and separate origin. The academic boycott movement did not begin among Palestinians or Arabs but by Westerners. In fact, Jews initiated the idea of academic boycotts. The key mover and shaker was Stephen Rose, an illustrious professor of neuroscience at the Open University in Britain and an expert on the physiology of memory who also wrote popular versions of his scholarly work (Genes, Cells and Brains). He is perhaps best known to the wider public for his radical opposition to evolutionary psychology and sociology, that is, the effort of scientists to use Darwinian theory to explain social adaptation. As an ex-Orthodox Jew and an adamant atheist and Marxist, he and his sociologist wife, Hilary, started a petition in 2002 that eventually garnered over 700 signatures of scholars, including 10 Israeli academics, to boycott Israeli academic institutions for their complicity in the occupation of Arab lands.

Rose belongs to a long list of renowned academics, some of whom, like Tony Judt and Hannah Arendt, began as Zionists. They include Eric Hobsbawm, Judith Butler and Richard Falk, as well as lesser lights such as Ilan Pappé (originally at the University of Haifa) and Norman Finkelstein. If cultural figures are to be included, add Harold Pinter to the list. In 2013, even Stephen Hawking, though not a Jew, was recruited to join this anti-Zionist Jewish cabal of Jewish humanists and secularists.

Some may assume that this is a victory for the Palestinian cause. Certainly it is a victory of liberal utopians who believe that Jews have only individual rights and no national rights. Unfortunately, it feeds a trope that the problem is one of rights when it is one of national self-determination. Palestinians and Arabs as the indigenous majority in the region have that right. Colonizing Jews do not but, ironically, this is a contention that cannot be established by right. That has to be openly stated. Further, against these armchair Jewish anti-Zionist academics who subvert the Palestinian cause by seducing others to join with them in the belief that the matter can be settled by intellectual and economic pressures when any realistic analysis will demonstrate that it can only be settled by force of arms. If it were not so far-fetched, one might be led to believe that the Jewish-led academic boycott is really a secret Zionist plot to milk the Palestinian movement of its militancy and reduce its efforts to petitions, protests and verbal haranguing with few substantive victories, however well publicized, and far more substantive setbacks.

Case after case demonstrates this. Let me list them:

  • The Rose petition instigated a counter-petition which garnered even more signatures
  • Not one university has joined the divestment effort and many universities have turned the tables and formally denounced the academic boycott campaign, including almost 300 S. university presidents who in 2007 denounced the boycott movement
  • When Mona Baker, inspired by the Rose petition, delisted Dr. Miriam Schlesinger of Bar-Ilan University (who also happened to be a former chair of Amnesty International in Israel and a staunch defender of the Palestinian cause) from the editorial board of her prestigious journal, The Translator, she added the delisting of Gideon Toury of Tel Aviv University to the dismissal list when Schlesinger refused to quietly resign. The result was a storm of protest, including from Judith Butler, a defender of boycotting Israeli institutions and not individuals, Harvard Professor Stephen Greenblatt, President of the Modern Language Association of America, and an overwhelming vote of condemnation by the British Parliament. (Can you imagine, parliament becoming involved in the appointment process of members of an editorial board of an academic journal?) Baker then put her foot further in her mouth when she insisted that she was only in favour of boycotting institutions and not individuals, and then complained she was the victim of a Jewish cabal
  • Even major victories – the overwhelming majority support (73%) in March 2015 of the students, faculty and support staff of the School of Oriental and African Studies (SOAS) at the University of London favouring the Israeli academic institution boycott and divestment campaign – had no concrete practical results
  • The Association of University Teachers (AUT) in Britain initially supported the BDS campaign, but subsequently rescinded its support when the organization merged with the National Association of Teachers in Further and Higher Education (NATFHE), which had just voted to boycott Israeli academics who did not vocally speak out against their government; the merged result, the University and College Union (UCU) voted to withdraw from supporting the BDS movement following the lead of the AUT which decided in 2005 to cancel the boycott of Israeli universities because of the damage to academic freedom and the hampering of dialogue and efforts at peace between Israelis and Palestinians; however, in 2010, the UCU reversed course again in a very minor way against the backdrop of the Israeli operation against Gaza in 2008-2009 when the UCU agreed to begin an investigative process into the Ariel University Centre of Samaria
  • In 2010, the Olympia Food Co-op decided to divest in any investments in companies supporting the Israeli occupation (a symbolic move) and, more substantively, to remove all Israeli goods from its shelves in a campaign led by Noah Sochet, a Jew, but that decision failed completely to serve as a catalyst for any other co-op to follow its lead; on the other hand, Israeli and Jewish lobby attempts to use lawfare and other techniques to rescind the action failed abysmally and backfired against the efforts on the grounds that any organization had the right and freedom to decide which items it would sell and which it would not
  • At a totally different scale, SuperValu food distributors in Ireland decided to no longer distribute food products from Israel, but the gap was quickly picked up by another distributor
  • In 2010, the Senate of the University of Western Sydney cancelled its relationship with Ben Gurion University thereby offering token support for the BDS movement
  • Following Wayne State, in 2010, the Student Government General Assembly of the University of Michigan in Dearborn, an area inhabited by 40,000 Arab Americans, passed Resolution # 2010-003 endorsing the BDS campaign
  • Following a vote by the York University Federation of Students endorsing BDS, in 2013, the Associated Students of the University of California (ASUC) at Berkeley voted to demand that the university divest the $14 million it had invested in companies affiliated with the IDF, namely Caterpillar, Hewlett– Packard and Cement Roadstone Holdings, but the motion was vetoed by student government president, Will Smelko. (The veto seemed to be with respect to divesting its $135 million in General Electric and United Technologies and I have not yet been able to clarify the discrepancy.) The final vote for divestment was passed by a tiny rump left at 4:00 a.m. by a vote of 16:4
  • UofT Mississauga Students Union passed a similar motion as had a rump group at the end of the previous year representing the Graduate Students Union (GSU) at the university
  • At Oxford University, support for BDS was defeated by a vote of 69:10
  • The University of Manitoba Students Union voted to strip financial support from the Students Against Israeli Apartheid;
  • In April 2013, theAssociation for Asian American Studies (AAAS) and in December 2013, the American Studies Association (ASA) by a two-thirds majority and the Council of Native American and Indigenous Studies Association unanimously voted to boycott Israeli academic institutions;
  • 500 anthropologists from around the world called on Israel to end its occupation and colonization of all Arab lands occupied in June 1967 but did not endorse divestment and/or a boycott
  • In February 2011, the Carleton University Student Association (CUSA) first voted in support of an abstract motion condemning any state engaged in occupation of another territory and recommending divestment and then, after the amendment universalizing the motion of the Students Against Israeli Apartheid (SAIA), voted to declare the whole motion redundant which then resulted in the very opposite of democratic dialogue – shouting, intimidation and even the temporary blockade of the room in which the meeting was being held thereby proving by the actions of the protesters that the arguments based on abstract human rights were a sham
  • In January 2015, student leaders at Trent University by a vote of 47:28 with 14 abstentions reversed a previous motion of the TCSA (Trent Central Student Association) to boycott Israel on the grounds that it was discriminatory
  • The numbers of academic associations and universities that have rejected such calls for boycotts and divestments are far, far longer, and include the best universities in the world like Princeton and Stanford as well as institutions like the Norwegian University of Science and Technology
  • Further, the American Council on Education in the U.S., its equivalent in Canada, the Canadian Association of Universities and Colleges (CAUT), have unanimously condemned boycotts aimed at Israeli academic institutions or Israeli academics individually; the American Association of University Professors also condemned the boycott effort. As AAUP worded their objections, “condemning violations of academic freedom whether they occur directly by state or administrative suppression of opposing points of view or indirectly by creating material conditions, such as blockades, checkpoints, and insufficient funding of Palestinian universities, that make the realization of academic freedom impossible” was both acceptable and even desirable, but NOT boycotts of either individual academics or their institutions. Dialogue, discourse, critique – there were the proper avenues for academics to make their views known
  • The states of Tennessee, Indiana, New York with other states lined up to follow, have voted to sanction learned societies that support BDS, in particular, ASA; in the U.S. Congress in February 2014, a bill, the “Protect Academic Freedom Act,” was introduced “to bar federal funds from going to academic institutions that back the BDS movement”
  • An objective and detached analysis would reveal far more defeats than the few and often only empty victories of the BDS movement after ten years of sustained and well-funded efforts. Instead, a few victories are broadcast ad nausea and often greatly exaggerated without a detailed examination on whether any changes on the ground have been effected, reinforcing the view that what counts for BDS are rhetorical and propaganda successes rather than any significant concrete wins .

Have the economic sanctions efforts yielded better results than the academic ones? It is true that Israel’s membership in a variety of international political and economic organizations (EU, OECD, etc.) provides a veneer of respectability, and, more importantly, an instrument for strengthening the economic foundation of the state, but that is merely an acknowledgement of the political, military and economic imbalance between the two sides. Turning it into a message of moral indictment is simply akin to blaming the wealth of the United States for impoverishment and impotency of others.

In the very first year of accession to membership by Israel in the OECD tourism council in 2010, when the Israeli Tourist Minister, Stas Misezhnikov, made the claim that the decision by the OECD for Israel to host the 2010 annual meeting was a recognition of Jerusalem as the undivided capital of Israel, Sweden, Turkey, South Africa and Ireland all decided to stay away from the conference in protest against such an outrageous interpretation of the decision. The UK also stayed away,but said its decision was not politically motivated. Greece and Denmark sent low level delegates. The Palestinians claimed this as a victory for the BDS movement – OECD refused to consider moving the locale of the conference even when the stupid assertion was made by the Israeli tourist minister. All the evidence pointed to simply another self-inflicted wound by the Israeli government. Had the minister made no such statement, the conference would have gone ahead as planned. But quite aside from the conference, the reality is that tourism from Europe to Israel continues to increase. Swedes increasingly head to Eilat as a winter destination. The reality is that this was not a boycott in any substantive sense, but a protest against an irresponsible and factually incorrect claim by the Israeli tourist minister; the effect had nothing to do with the BDS movement and, in any case, had no repercussions on the ground.

What about the widespread and oft-repeated report by electronic intifada that Brazil cancelled a $2.2 billion security contract for the 2016 Olympics with International Security and Defence Systems (ISDS) of Israel? BDS allies in Brazil had been lobbying for a decision to exclude ISDS since it won the contract for the FIFA world cup. BDS Labour unions in Brazil had protested the possibility of using a company which they linked to the use of technologies in suppressing the Palestinians in the West Bank. BDS claimed an enormous victory.

The reality was something else. ISDS did claim to have won a contract in October 2014, not for $2.2 billion, but for a small part of that huge security budget. The contract was for design, organization, procurement and management of the security operation. The contract was not for provision of the security. On 8 April 2015, the Brazilian government denied that a $2.2 billion contract had ever even been contracted with ISDS let alone cancelled. Whether ISDS even obtained the small part of the contract for planning and coordination, I was not able to learn, but it now seems clear that it never received or even claimed to receive such a contract. The contract for planning and coordination could have been cancelled, but neither ISDS nor the Brazilian government opined on the subject and, given that this was a core security issue, it is no surprise that both the Brazilian government and ISDS remained otherwise silent.

It seems unlikely given the lead time needed to undertake the planning and coordination, that such a planning, coordination and procurement contract would have been cancelled. Further, the Brazilian Air Force purchased Israeli drones to patrol the skies during the World Cup in 2014. It is likely that Brazil will rely on even more of those drones for the Olympics. Even if Brazil had cancelled the contract, it was only for a very small part of the overall $2.2 billion sum. ISDS would have had to have completed or almost completed its work by April 2015 if the security were to be in place by the time of the Olympic opening ceremonies in 2016. Whatever the case, BDS had been engaged in gross exaggeration and in the practice of claiming great victories where they were at best ephemeral.

Elbit Systems Ltd. is another Israeli international high tech firm engaged in the provision of homeland or company security systems offering a wide range of defence, homeland security and commercial programs throughout the world. It won a contract for supplying the Philippines with 28 upgraded APCs for the army in a modest $20 million deal in spite of an enormous BDS effort to prevent the contract. In 2010, BDS did succeed in getting the huge Swedish pension fund, Foersta AP-Fonden, and the Norwegian Oil Fund to delete Elbit from its investment portfolio.

I have argued above that any consequentialist examination of the BDS movement ends up finding it contradictory and self-defeating rather than capable of producing better results than any other alternative. I have also implied that on situational grounds, the BDS movement is not grounded in an in-depth analysis of the economic and political forces arrayed against the BDS movement and how the Palestinian cause can emerge victorious. Rather, the movement is based on the contemporary ethos of shaming, which can and has produced results on an individual, corporate or national front, but often misguided, poorly targeted, and unfocused results in the electronic equivalent of the Salem witch trials.

There is also a deontological ethical argument. Like the genocide and many other international conventions, what counts in determining exploitation, colonization, expropriation and apartheid are intentions. The 2002 Rome Statute defines a crime against humanity as an action by a regime that systematically institutionalizes “oppression and domination by one racial group over any other racial group or groups committed with the intention of maintaining that regime.”  Proving intention becomes the key. The dilemma is postulating ethical concerns between two polarities, a regime dedicated to establishing equal rights for all members of a polity and one dedicating to denying rights in perpetuity to a polity.

In this case, there are three different groups: 1) non-Jewish members of the Jewish state, 2) members of a Palestinian collectivity on territory controlled and/or occupied by the Jewish state, and 3) refugees with the same ethnicity as the previous two outside the territory of either state. Re the latter group, if denial of return were to be termed genocide, apartheid or even continued oppression, virtually every state in the world in which there has been ethnic and religious conflict would fail such a litmus test. If it is the second, then the case has contradictory evidence – the seizure of territory, sometimes privately owned, to expand the territorial control of the state and, on the other hand, the provision for the creation of universities (there were none there prior to 1967), and elections in that territory as well as educational and religious autonomy.

Even if the depiction of good will cannot be sustained, the charges of evil intent also cannot be proven given the mixed record. Piling up the evidence on one side without considering falsifying evidence is no way of determining evil intent. This has even greater truth when applied to the discrimination against Israeli Palestinian citizens of Israel even when they are treated as second class citizens and discriminated against with respect to employment and housing. This is why a political argument for collective rights falls flat because what comes forth is the need to defend individual and NOT collective rights and then to offer self-defence as a higher moral ground when faced with discontent and criticism.

But the key and most important issue is a teleological one. For those involved in and concerned have four choices, two mushy liberal ones each with a proven record of failure, even as many still cling to hopes for the first option.

  1. Liberal support for a two-nation solution in which Palestinians and Jews have their own nations and purportedly live side-by-side in peace, a position which still seems to enjoy support from some leading Palestinian figures such as Sari Nusseibeh, currently president of al-Quds University;
  2. Liberal support for a singular secular state with equal individual rights for every individual in the one state;
  3. A Conservative Jewish ideology or maintaining superior power and control by Zionists over the territory under the guise of both security and maintaining a Jewish majority in the territory;
  4. A Radical Palestinian vision of a single state dominated by Palestinians, including the refugees who, through victory on the ground, exercise their right to return.

The BDS movement is really based on the second of these options, even when sometimes, and in contradiction, employing the two-state language. If number 1 seems to be headed for the bankruptcy courts, considerable investment in option 2 might be warranted if the position were not so strategically weak in terms of situational ethics, and self-contradictory in the defence of Palestinian national and collective rights while denying the same to the Jews when insisting on a universal discourse of individual human rights. And when clearly understood, the resort to number 3 by more and more Jews and Zionists only undercuts both 1 and 2 even more, and moves state and national legislatures to introduce bans on promotion of BDS in the U.S. so that the most powerful state in the world more and more supports the hegemonic right-wing agenda in Israel.

The fourth option seems the only one left after discrediting the others, though this paper only focused on the BDS movement. If option 4 is reinterpreted as a focus on one’s own power, on the need to own and exercise that power instead of focusing on the horror of the other, if there is recognition that freedom and self-determination must be first exercised by oneself before one can become a true sovereign state, then everything is once again possible.

Conclusion (to follow in a separate blog)

Cleaning House

On Cleaning House                                                                               11 June, 2013.

by

Howard Adelman

Why is the expression “cleaning house” so equivocal? On the one hand it means tidying up or, more extensively, scrubbing down your home to get rid of dirt and dust. At the extreme, a premise is made that space pure and free of adulterated matter or pollutants is highly desirable. But cleaning house can have an aesthetic dimension – getting rid of all the chachkas and paraphenalia that clutters your home. More radically, it suggests a goal of streamlining your furniture and belongings in obeisance to the aesthetic dictates of modernism. Cleaning house can be an economic or, at the very least, accounting expression – make sure all your bills are paid or all your receipts are properly filed. It certainly has an ethical dimension when one declares one’s intention of getting rid of all the “bad apples” in the Senate and restoring principles of integrity and frugality in the dispensation of government funds. “Cleaning house” also has a military dimension; a newspaper depicted Assad’s counter strikes against the rebel forces as “cleaning house”, meaning that the Assad forces are currently purging the route to Lebanon of all rebel militias (as well as many innocent civilians) as he takes back one stronghold after another. The expression can have a religious dimension as when Jesus cleaned the Temple of Jerusalem and drove the merchants out. “Jesus entered the Temple and began to drive out all the people buying and selling animals for sacrifice. He knocked over the tables of the money changers and the chairs of those selling doves.” (Matthew 21:12-14)

In all of the above uses, the emphasis is on three things: what is yours; what of yours you want to dispose of; and the final remaining purified state. But if one is a gambler and cleans house, the expression means the very opposite – taking what is theirs – the money of the other players. It means adding not detracting from what is yours. Finally, and possibly most importantly, it means, not working like hell to make your home spick and span or becoming obsessively focussed on getting rid of all crime and corruption, but, rather, to take everyone else’s money as fast as one can, including the casino’s, without any seeming effort. Contrary to the normal use of the phrase that esteems the Protestant work ethic, this use of the phrase idealizes ease and leisure and deprecates hard work. The expression is used derivatively to combine both senses when a cop in a movie observes a den of thieves leaving their abode and running off with their loot. “The rats are cleaning house.” It means they are taking only the proceeds of their crime and abandoning everything else.

I have been cleaning house for the last two weeks, but especially during the past four days. In part, I have been cleaning house in one of the various meanings of the first sense and eliminating and discarding what we no longer want to own. I put those items in the garage sale as part of our Casa Loma community this past weekend. But calling the 25 of my 40 file drawers that I put in the blue recycling bins what was undesirable does not seem quite correct except in comparison to what was kept. I just wanted to make space and get rid of things in spite of my desire to hold onto them. Some of those items included undergraduate essays that I wrote almost sixty years ago.

But I also got rid of 2000 books, perhaps 15-20% of my library. Eight large boxes went as donations to the libraries of three research centre at York University. Some were sold in the garage sale. Others went for resale in a used bookstore on Bloor Street. I gave away many. The largest by far – two dozen boxes – went to the University of Toronto library, the vast bulk of them for the UofT book sale that helps the library buy more books. Getting rid of old files may be a humanitarian act to save some poor shlob when I am even older the problem of going through my files and selecting anything worthwhile. Or perhaps that is too arrogant. What I am really doing is simply saving the files I still can or may reference as well as trying to reduce the risk that I will not be dispensed to a recycler altogether.

In any case, cleaning house when you are disposing of your intellectual property and production seems so much harder a task than simply disposing of goods you no longer value. You both hold them in high value, but no longer enough to keep around in your old age. The greatest pain does not come from the physical exertion expended. In my case, it was far harder to dispose of the books than the files.

I have several other observations. One can get donation receipts for giving away books and these can be even more financially valuable than actually selling them directly or through a used book store. Secondly, and I noticed this most acutely at the garage sale, whereas when I sold off a lot of books at a garage sale ten years ago, I was swarmed. The numbers who came were very large. There were very few relatively who came this time and, surprisingly, not that many who appeared when the books were widely advertised as being free. In the electronic age, having a print library seems no longer a valuable; given the costs of real estate, space is valued more highly.

All this is to say that I have been very busy and have neglected my comments on Jeremy’s biography of Albert Hirschman. I have neglected them for a second reason – the little feedback that I have been getting. I wanted the reading of the book to be a conversation. However, very few have participated. In talking to two of you, it has been suggested that my long winded comments, however interesting they are, are intimidating. Those who want to offer a few brief impressions feel out of place.

So I will try a few chapters using a different response – by asking a few questions rather than writing a small essay.

What do you think?

Hegel, Dialectics, Economics and Praxis: the Family

Worldly Philosopher: The Odyssey of Albert O. Hirschman by Jeremy Adelman

Conversation – Instalment 3: Hegel, Dialectics, Economics and Praxis: the Family

Chapter 2. Berlin is Burning              

 by

 Howard Adelman

 AH wrote a twenty-eight page thesis for his graduation from the gymnasium on Hegel based on his reading of The Phenomenology of Spirit with his teacher, Bernd Knoop. (Knoop was very influential in AH’s progress by providing him with an excellent letter of recommendation.) The thesis dealt with ethics and the relationship to the family and the nation and is referenced in fn. 4: “Der Geist, die Welt der Sittlichkeit und die Vernunft in Hegels ‘Phänomenologie des Geistes’ – Interpretation eines Abschnittes aus der Phänomenologie. Since Hegel loomed so large in Albert’s intellectual world as well as his own work, it is important to dwell on what he thought and wrote at the time.  

 A few introductory notes are necessary based on what is common to the various interpretations of Hegel. AH’s thesis can be translated as a commentary on the section of the Phenomenology of Spirit (PofS) dealing with Spirit, the World of the Ethical Life and Reason. The PofS itself is divided into eight chapters. The first three chapters deal with different levels of consciousness, that is, the phenomenology of a subject experiencing the objective world. They are the certainty of sensibility (Chapter 1), perception (Chapter 2) and understanding or scientific thinking (Chapter 3).  In chapter 4 we are introduced to self-consciousness in which the object is also the subject engaged in the experience. That section includes the famous section on Lordship and Bondage.  It deals with the non-rational forces experienced within the self and between selves as experienced by a self that has already developed a scientific mind set. These non-rational forces are life and desire, or, in AH’s world, self-interest or self preservation versus passion. 

Chapter 5 focuses on reason and chapter 6 on Spirit which supercedes reason. It is Chapter 6 that begins with Sittlichkeit, the realm of ethical life determined by traditions or customs or conventions (Sitte). Thus, Spirit first manifests itself in the inherited customs and values of a society as constituted by and in the everyday practices of the members of a society. The chapter on Spirit dealing with the ethical life will be followed by religion (chapter 7) and absolute knowing (chapter 8) where self-consciousness has become the science of experience as manifested in culture. Jeremy mis-described this dialectical development when he wrote of “the dialectical escalation from spirit to consciousness to self-consciousness.” (p. 56) Some editor should have caught this, for Jeremy should have written of the dialectical development ‘of (not from) spirit from (not to) consciousness to self-consciousness’.

It is important to understand that economics, even in its most basic form of exchange, is already part of culture and not simply a transfer of labour and goods between individuals. Economics is a study of a set of practices already part of a social life in which an exchange already involves levels of recognition of one another, especially as the proprietor of some thing or skill. Prior to the economic and political life, the sense of values is first developed in the family before one enters the broader social life of economics and politics where we deal with issues of scarcity and risk on quite a different level than in the section dealing with lordship and bondage. (I will deal with this section tomorrow when Jeremy refers to it in the next chapter.) Further, the two spheres of the family and the polis are portrayed as inherently at odds in Hegel as epitomized by the story of Antigone. Given Albert’s closeness and tensions with his sister, and given that this was the chosen subject matter of Albert’s thesis, Jeremy provides the following elaboration.

“What was the ‘ethical’ bedrock of the family? Not the husband and wife relationship, ‘which is clearly natural.’ Nor is it the tie between parents and children, because ‘it does not display that identity between subject and object requisite for an ethical relationship.’ The condition of an ethical relationship rested upon the exercise of free will, which required an exchange of ‘free individuality unto each other.’ Accordingly, the ties that most conform to a ‘truly ethical relationship’ are those between brothers and sisters, bound by blood but divided by sex. As Jeremy suggests, “his reference was not just Phenomenology, but also his dialectic with Ursula.”

Some further elaboration may be helpful, especially since it is rooted in a narrative, a form greatly appreciated by AH. The sketch of the tale is simple. Creon has usurped the throne. The prince, Polyneices, challenges the usurper and is killed. His sister, Antigone, challenges the power of the state by insisting on the right to bury her brother in accordance with divine law, though Creon has decreed that the body be left to rot in the field of battle. The tragedy is built on the conflict between the norms of power which insist on universal governance and the norms of the family that are inherent to the particularity of anyone’s existence. Human law and divine law are in inherent conflict. In the brother-sister relationship we have gone beyond the level of sexual attraction and the conflict between desire and survival and now deal with ethical life and its most important commandments in dealing with burial of the dead. Further, it is the woman who is the enforcer of these fundamental norms. Antigone challenges the rule of Creon as no man could ever do, for her challenge is based on the fundamental and divine law of family obligations.

Why is the ethical life first manifested in the relationship between a brother and a sister for Hegel? Because, as Hegel writes, “They are of the same blood which has, however, in them reached a state of rest and equilibrium.” (section 457) [As man and woman they are not driven in their relationship by the tumults of desire.] They are individual responsible agents and free individuals capable of assuming responsibility for themselves and one another. Tied by blood but divided by sex and self-consciousness, we find a relationship of identity in difference. It is because Polyneices is Antigone’s brother that she challenges Creon’s decree. They recognize themselves in the other. Albert connected with Ursula in the same way in spite of their enormous differences in temperament and political convictions. Their connection is rooted in intuition and need not be brought into self-consciousness except when dealing with the external political world of power and influence.

What if the political power is the brother? What if the brother who has that power offends the basic ethical principles of the family? As I suggested in my biblical commentary on Numbers 8:1 to 12:16, Miriam criticizes her brother, Moses, for abandoning Tzipora in favour of his political commitments to Israel as a nation. The family life is sacrificed for a public cause. Miriam does not just stand up to a political ruler but to God, for the general sacrifice politicians make of their wives and their families in service to a public cause.

I bring this latter story up because it demonstrates how the conventions of the family that are sacrosanct vary from culture to culture and from time to time. The Hellenic and Hebrew cultures were at odds in this respect as in many others. One constant in both cases is the sister as the defender of the ethical norms of the family. The other constant is that the sister standing up for the norms of the family herself becomes a victim. One of the ironies that deserves some elaboration is that in the case of Ursula and Albert, there is a role reversal where Ursula sacrifices family values to the polis while Albert seems to steadfastly refuse to do so. Family values and their protection underwent a radical challenge in the twentieth century, but it requires a separate phenomenological examination of the spirit of modernity to uncover the particular dialectical nature of the brother-sister relationship that characterized the modern era. I believe the book should have done this to understand Ursula and Albert’s relationship at a deeper level.

Hegel also forces us to raise the issue of Hirschman’s methodology. Jeremy writes that Albert “used Hegel to turn excessively abstract reasoning on its head.” In that sense, AH was ahead of his time in interpreting Hegel as a pragmatic realist rather than an idealist with his emphasis on actual practices rather than abstract theory. That is why it is somewhat disconcerting to read the constant references to Hegel in terms of German idealism. Influenced by the Scottish Enlightenment, Hegel, in fact, as did AH, turned his back on German idealism.

This interpersonal dynamic is told against the backdrop of the interpretive conflicts within the Social Democratic Party of Germany (SPD) over the interpretations of Marx and the application to the problems of the time. In 1930, AH was impressed by the Austrian Marxist, Otto Bauer, and a spellbinding lecture he delivered on Kondratiev long cycles, the 40-50 year cycles of development influenced by fundamental technological breakthroughs such as the recent shift from an industrial to an information and communication culture. According to Jeremy, this was the singular event that induced him to study economics just as the SPD was undergoing radical debates over how to handle the current economic crisis with debates over tactics and new visions. As Jeremy noted, the schisms that emerged went deep in the SPD and between the SPD and the Communist Party. The moderates stuck with their alliance with the conservatives and their turn to the austerism of the time that was deflationary, anti-labor, pro-military, pro-religion and even racist. The radicals wanted an alliance with the communists under the intellectual leadership of Erich Schmidt and Walter Löwenheim that became the core of the Neu Beginnen movement if 1933. The debate was over the choice of the devil to join in bed and how the cunning of reason was to be understood. AH moved left under the influence of Lenin’s understanding of the creative cunning of capitalism and the emphasis on the subtlety of tactics as his introduction to possibilism in dealing with the challenge of change. This is one of the great insights in the book – the irony that it was Lenin who eventually led AH to become an innovative defender of capitalism. Talk about the cunning of reason!

Another major influence on AH was Rafael Reim, the Russian ex-Menshevik and leader of the Bund, the Jewish Workers’ Union and especially his two children, Mark and Lia, who became the intimate friends of Ursula and Albert.  The influence of another mentor, Heinrich Ehrmann, who had introduced the two older Hirschman children to the literature of and debates within the left, magnified the schism between the children and their bourgeois parents, particularly between Ursula and her mother just as the family hit a series of financial crises.

Fifteen years later these and many other political divisions permeated my overwhelmingly Jewish public High School, Harbord Collegiate, after WWII. My row in my classroom consisted of the only politically non-aligned male in my class, myself, a communist (Gerry Bain), a bundist (David Berger), a Liberal (Albert Cheskes) and a Conservative (Gordon Donsky), all of whom ended up in Medical School and all of whom, except myself, became middle of the road doctors. The most brilliant members of the class were women, Judy Ochs, daughter of the famous Rabbi Ochs who pursued her religious studies at YeshivaUniversity, and Judy Rappaport who, as a committed Zionist, moved to Israel. Given my experience with the political divisions, I was surprised to read that the options seemingly available to AH seemed far more limited in 1933 Berlin than in 1950 Toronto. AH remained grounded in the middle with a commitment to open-mindedness and moderation preferring the devil he knew, the compromised SPD, to an alliance with the communists. I was familiar with street marches, particularly on the part of saving the Rosenbergs from execution, but not the thuggery and street fights between militant factions — though my father told me stories of such fights in the thirties over the activities of the garment workers union.

We had nothing comparable to the rise of the Nazis culminating in Hitler becoming chancellor and the Reichstag fire used to bury democracy in Germany. Only much later would Albert learn of the heroism of his bourgeois father in saving the famous demographer, René Kuczynski, from the rampaging Nazi storm troopers. It was no surprise that AH opted for exit when his father died suddenly from cancer and was buried. As with many other events in Albert’s life, the carapace of invulnerability served to mask any pain beneath and the great sense of loss he must have felt. What an enormous difficulty this poses for a biographer for whom it is imperative to penetrate that hardened and seemingly impenetrable emotional shell.

Obama 19.Drones – the Normative Debate.27.02.13

Obama 19. Drones: The Normative Debate 27.02.13

by

Howard Adelman

Al Qaeda and its associated forces, that is a co-belligerent organized force committed to fight alongside al Qaeda against the United States and its allies even if the primary goals differ, have enough coherence to be called an enemy and enough intent to attack the United States, its assets and its allies so that the violent conflict with them can be called a war. The ethical and legal issue is whether the conduct of that war, particularly in the use of drones, follows the norms of just war theory.

One can find a profusion of writing criticizing the drone program for being illegal and unethical as well as counter-productive. Most of that writing is polemical though there are a small number of legal critiques. As an example of a polemical critique, read Saijad Shaukat, "Killing Civilians: Obama’s Drone War in Pakistan," Global Research, 14 December 2012: "these strikes are illegal, unethical and a violation of Pakistan’s sovereignty as well as the UN Charter." The denunciations contain neither evidence nor arguments and are simply critical opinions.

Ignoring opinionated screeds, broadly speaking, the debate over strikes targeted at individual members of al-Qaida has centered on their legality, their ethics, the wisdom of using them, and the standards by which they are approved. The assumption all around is that a war against the terrorists who perpetrated or who are allied with the perpetrators of 9/11 is a just war for a just cause and a just war if proportionate to the continuing harm being carried out. The questions are about the conduct of the war, in this case the conduct of employing drones from which missiles can be sent to assassinate individual members of the enemy.

The question should not be about targeting per se, though some seem to think that is questionable. The use of lethal force against known individuals who are members of an enemy group has long been regarded as legal and in accordance with the laws of war. See Harold Koh, "International Law and the Obama Administration," American Society of International Law, Washington, 25 March 2010; Koh, now Dean of the Yale Law School, was then Legal Adviser to the State Department and offered the first legal justification for the use of drones by the Obama administration in response to a request from Philip Alston, the UN special rapporteur on extrajudicial killings who claimed that the use of drones by the CIA, not per se, butabsent appropriate cautions and accountability mechanisms, would be illegal under international law.

There are associated groups allied with al Qaeda that the United States has not yet attacked. Jabhat al-Nusra is one. It constitutes the Islamist faction of the rebel group attempting to overthrow the Assad regime in Syria. Recently it took responsibility for the Damascus bombings and for the rout the day before yesterday of the Syrian army from the Golan Heights. (See Salem Al-Dimashki, "Syria’s Druze Grapple With Jabhat al-Nusra,", ALMONITOR, 8 February 2013) Israel now faces extremist Islamist forces not only in Gaza (Hamas) and in Lebanon (Hezbollah), but now on its Syrian border. The great fear is that Jabhat al-Nusra will gain access to Syria’s stockpile of chemical weapons.

In war, chemical weapons are now banned from use. Weapons that are used must be authorized by a proper authority, be motivated by the right intentions, must have a reasonable probability of success, must be proportionate in the harm done relative to the good in eliminating enemies – this is often referred to as the principle of discrimination since all efforts possible must be in place to minimize collateral damage to civilians while still allowing the military mission to go ahead. Finally, the initiative must be employed as a last resort and, as we shall see, this norm is the one most often misinterpreted. It is rare in public life that a policy is debated primarily in just war terms, so I will take enough space to deal with the various issues.

Right Authority

Usually right authority is taken to mean the authority source that tells a soldier to implement the decision – that is the source of the top-down command. In the case of the Obama administration, the leadership accepted the challenge to establish and make sure that the democratic voter also supported their use of drones in the war against the Islamic extremists. They went further and thought that the public in the countries in which they were being used also should support America’s use of drones and should not get caught up in a mistaken belief that drones were employed careless of the harm they do and can cause. John Brennan in his 2012 speech at the Woodrow Wilson Centre acknowledged "that we, as a government, along with our foreign partners, can and must do a better job of addressing the mistaken belief among some foreign publics that we engage in these strikes casually, as if we are simply unwilling to expose U.S forces to the dangers faced every day by people in those regions." This latter is not really an ethical norm that can be attached to the agent utilizing the weapon, but is really only one of the success measures. On that measure, as can be seen in the last blog, the Obama administration has not been successful. However, Brennan viewed the fulfillment of that norm as dependent on America taking due diligence to avoid or minimize civilian casualties and fulfilling the principle of discrimination. As Brennan insisted, "there is absolutely nothing casual about the extraordinary care we take in making the decision to pursue an al-Qaida terrorist, and the lengths to which we go to ensure precision and avoid the loss of innocent life."

1. Public Opinion

61% of American voters approve the use of drones to target Islamist radicals. 18% are opposed. (Huffington Post, "Omnibus Poll" 10-11 January 2013) though by a margin of 2:1 they regarded targeting American citizens who had joined al Qaeda abroad as illegal. (Fairleigh Dickinson Poll, 7 February 2013). That latter poll were confident in the military carrying out such attacks (75%) but 10% less, 65%, supported making the CIA responsible for the CIA attacks. Thus, except for targeting American Islamists, the administration enjoys strong support for using drones for such purposes and assigning that task to the CIA even if they would prefer that the military carry the responsibility.

Support from the public of the countries in which drones are being used is not required for their use to be legally and ethically justified. For, as I indicated in my last blog, America is woefully lacking in such support. However, if drones create a backlash in the countries that host Islamicist warriors, that is nothing compared to the backlash against American boots on the ground. The strategic, but not ethical or legal requirement, could be the principle of using a method of fighting that, if at all possible, minimizes a local backlash.

2. Political Authority

John Brennan defended the strategic wisdom of using drones.

Targeted strikes are wise. Remotely piloted aircraft in particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the most treacherous terrain, strike their targets with astonishing precision, and then return to base. They can be a wise choice because of time, when windows of opportunity can close quickly and there just may be only minutes to act. They can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger altogether. Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians, especially considered against massive ordnance that can cause injury and death far beyond their intended target. In addition, compared against other options, a pilot operating this aircraft remotely, with the benefit of technology and with the safety of distance, might actually have a clearer picture of the target and its surroundings, including the presence of innocent civilians. It’s this surgical precision, the ability, with laser-like focus, to eliminate the cancerous tumor called an al-Qaida terrorist while limiting damage to the tissue around it that makes this counterterrorism tool so essential.

The geographic issue is much more complicated than Brennan implies for the issue is not simply about the difficulty of the terrain, but that the target is not living in an area of battle but located in a region in which there are no ostensible hostilities. Such objections were made by Mary Ellen O’Connell from the University of Notre Dame Law School who served as chair of the International Law Association (ILA) on its Committee on the Use of Force. (See the interview with her posted on the International Relations and Security Network on 20 February 2013. http://www.isn.ethz.ch/isn/Digital-Library/Articles/Detail/?lng=en&id=159629)

Brennan in his ethical as opposed to his strategic defence of the use of drones went beyond the simple argument that Barack Obama as Commander in Chief of the United States forces was fully authorized to use drones. Congress passed the AUMF, the Authorization for the Use of Military Force one week after 9/11. (Pub. L. No. 107-40, 115 Stat. 224 2001) The congressional authorization mandated the use of all necessary and appropriate force against those nations, organizations, or persons that the president determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Brenner also said that in such authorization, Obama was accountable to Congress. "Ensuring the ethics and efficacy of these strikes also includes regularly informing appropriate members of Congress and the committees who have oversight of our counterterrorism programs." He credited oversight with also improving the effectiveness of the use of drones, but since he did not explain himself, and since it is difficult to see how a committee could help make a weapon more effective, I have no idea what he meant by that claim.

In addition to the formal status of the president in the governing structure of America, Brennan required subjecting that authority to a system of accountability in response to a subsequent op-ed in The New York Times by Mary-Ellen McConnell (6 February 2013) who implied that this was the key weak link in the Obama administration’s justification for the use of drones. (See her 2012 book, What is War? An Investigation in the Wake of 9/11. I will note that McConnell, whatever her legal reasoning and her excellent bona fides as a lecturer on the subject to members of the US defense department, was just totally off base in that op-ed in claiming that Brennan has refused "to openly discuss the legal basis for America’s campaign of targeted killings of terrorism suspects." In my reading, he gave speech after speech in 2010 and 2011 doing precisely that, as did other members of the administration. More to the point, though it is a joy to read impassioned critiques, and while I would have loved to be convinced, I personally found her criticisms not only to be very unrepresentative of the vast majority of legal scholarship but simply unpersuasive. Further, she did what many others critics have done, confused human rights protections with just war law and ethics. The two are radically different.

Brennan then introduced a third factor that buttressed his case for rightful authority – the extreme care in the process of making the decisions. "This is the seriousness, the extraordinary care, that President Obama and those of us on his national security team bring to this weightiest of questions: Whether to pursue lethal force against a terrorist who is plotting to attack our country."

But what if the drone attack is not against a named terrorist but against a group who seem to be demonstrating behavioural patterns as if they were terrorists, the so-called "signature strikes"? (Cf. Cora Courier and Justin Elliott "Drone war concerns go far beyond the killing of American citizens," Pro Publica 26 February 2013) How can suspicious behaviour justify the use of lethal force by unmanned drones? Further, what about the authority for killing American citizens abroad by using drones that the American public does not seem to support? Four American citizens have been killed abroad by the use of drones compared to 2,600-3,000 militants and civilians. Kmal Derwish who was killed in a drone attack in Yemen, the first drone attack outside of Afghanistan, was an American citizen. He was the first of four American citizens killed in drone attacks. As I wrote yesterday, Anwar al-Awlaki and Samir Khan, both American citizens, were killed in Yemen on 30 September 2011. Two weeks later, the fourth American citizen, al-Awlaki’s son, Abdulrahman, was also killed.

By what legal authority does the government justify such assassinations? I should note that Jeh Johnson found the use of the term "assassination" to be repugnant, both legally and because of psychological associations with the murders of President Kennedy, Robert Kennedy and Martin Luther King. I would strongly defend its use for it accurately describes in ordinary language what takes place even if it is a term that would not want to be employed by a defence attorney in a legal case defending such killings. Perhaps I am more comfortable with its use because I am a Canadian.

Brennan answered the latter question of killing American citizens abroad by citing Attorney General Holder’s legal brief. "When that person is a U.S. citizen, we ask ourselves additional questions. Attorney General Holder has already described the legal authorities that clearly allow us to use lethal force against an American citizen who is a senior operational leader of al-Qaida. He has discussed the thorough and careful review, including all relevant constitutional considerations, that is to be undertaken by the U.S. government when determining whether the individual poses an imminent threat of violent attack against the United States." I will discuss that justification in the next section.

3. Legal Authority

John Brennan in his 2012 Woodrow Wilson talk summarized the legal defence of drone attacks as follows:

First, these targeted strikes are legal. Attorney General Holder, Harold Koh, and Jeh Johnson have all addressed this question at length. To briefly recap, as a matter of domestic law, the Constitution empowers the president to protect the nation from any imminent threat of attack. The Authorization for Use of Military Force, the AUMF, passed by Congress after the September 11th attacks authorized the president “to use all necessary and appropriate forces” against those nations, organizations, and individuals responsible for 9/11. There is nothing in the AUMF that restricts the use of military force against al-Qaida to Afghanistan.

As a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense. There is nothing in international law that bans the use of remotely piloted aircraft for this purpose or that prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.

The full legal justification can be found in the Department of Justice White Paper released by NBC News.

(http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf)

Those targeted can be a senior operational leader of al-Qa’ida or an associated force of al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans. Three conditions were specified:

1) the determination is made by an informed high-level official of the U.S. government that the target poses an immanent threat of violent attack against the United States;

2) capture is infeasible;

3) the operation would be conducted in a manner consistent with applicable law of war principles.

The Presidential authority was sanctioned by international law and the law of defence, Congressional authorization "to use all necessary and appropriate military force" and his own role as Commander-in-Chief and his sworn duty to protect the country. (Cf. Charlie Savage and Scott Shane, "Memo Cites Legal Basis for Killing U.S. Citizens in Al Qaeda," The New York Times, 5 February 2013) Not included in the memo is any reference to the 2006 endorsement by the U.S. Supreme Court that determined that the United States is in an armed conflict with al Qaeda. The legality has been backed by all three branches of government in the United States.

The memo referred to indicated that the lawfulness of the use of lethal force in a foreign country would require the consent of the host nation’s government in order not to offend the principles of sovereignty and neutrality if the host nation is unable or unwilling to suppress the threat posed by the individual targeted. But as I indicated yesterday, Pakistan, at least in public, vociferously criticized the drone campaign, though in noticeably slippery language.

Aren’t American citizens protected by the Fourth Amendment on the rights of citizens and the prohibition against unreasonable seizures and the due process clause of the Fifth Amendment? How could they be targeted? Killing American citizens abroad is not illegal according to the leaked legal brief citing Mathews v. Eldridge since the individual’s interest in protecting his/her own life would be offset by the United State’s obligation to forestall the threat of violence. Such an interpretation has evidently been upheld in a series of Supreme Court decisions beginning with Hamdi, 542 U.S. at 518. The Obama administration lawyers have asserted that it would be lawful to kill a United States citizen if “an informed, high-level official” of the government decided that the target was a ranking figure in al Qaeda or its associated organizations who posed “an imminent threat of violent attack against the United States.” The key criteria are:

  • Is the individual a senior operative?
  • Is the threat immanent? A threat would be considered immanent even if the individual were engaged in planning operations to kill Americans. Immanence in the document is defined to include: the relevant window of opportunity; the possibility of reducing collateral damage to civilians and: the likelihood of heading off future disastrous attacks on America.
  • The threat does not have to take place on a hot battlefield for there is no geographic limit when the enemy is involved in a non-international (i.e. non-inter-state) armed conflict.

(The 16-page classified legal memo leaked through NBC News is also available online at other sites. Cf. http://openchannel.nbcnews.com/_news/2013/02/04/16843014-justice-department-memo-reveals-legal-case-for-drone-strikes-on-americans?lite)

Whether such a legal briefing holds up in the courts, it did seem to settle down much of the furor and cries for transparency concerning the legal justification for drone attacks. (Cf. Sarah Holewinski, "Drones: An Outlier in a Transparent Presidency, Politics, 19.01.2013) Further, although the leakage of the legal justification did seem to quiet down the large number of Americans critical of killing American citizens abroad, it served to raise new questions about deliberately targeting low level operatives or for targeting behaviour rather than identity-based targets, the so-called "signature strikes".

Another legal justification was offered by the Pentagon General Counsel, Jeh Johnson, in his speech at the Oxford Union on 30 November 2012. The speech, "The Conflict Against Al Qaeda and its Affiliates: How Will It End?" (Johnson at Oxford) has been published online by Benjamin Wittes on "Lawfare". Benjamin Witte is a Senior Fellow in Governance Studies at Brookings and co-directs the Harvard Law School-Brookings Project on Law and Society. (http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at-the-oxford-union/) Johnson’s job is to ensure that everything the Defense Department does is consistent with U.S. and international law. I will leave aside for the moment whether the defence he offered applies to CIA operations, but it is generally assumed that the legal doctrine binding the military is much stricter than one binding the CIA. On 22 February 2012, Jeh Johnson also gave the Dean’s Lecture at Yale Law School entitled, "National Security Law, Lawers and Lawyering in the Obama administration. (Jonson at Yale) I will now cite both speeches and suggest they are fully consistent with the 16-page leaked memo. There is also a forthcoming conference at the Notre Dame Law School on "The Ethical, Strategic and Legal Implications of Drone Warfare" 19-21 March 2013.

In his account, Johnson indicated that the US had signed agreements with the Afghan government on "strategic operations". He said nothing about an equivalent agreement with the Pakistan government. Johnson also indirectly referred to Obama’s decision to rename the war as a war against al Qaeda and its affiliates and not the abstract category, Bush’s "War on Terror". "We have made clear that we are not at war with an idea, a religion, or a tactic. We are at war with an organized, armed group — a group determined to kill innocent civilians." The definition specifically excludes journalists, activists or propagandists solely engaged in those pursuits or even self-radicalized terrorists inspired by al Qaeda for they remain civilian suspects subject to criminal law and are not part of an armed force. The targeted individuals have to be part of an armed force and they are attacked in a way consistent with the law of war and its principles of proportionality, necessity and distinction. Such a war will end only when a tipping point is reached that al Qaeda and its affiliates are degraded to such an extent that it is no longer to be regarded as an effective military force but only clusters of bedraggled terrorists.

In my review of the legal justification of Obama’s drone policy that involves what I already have argued is a conventional even if transforming mode of arms delivery to nonconventional targets, I am convinced that is arises from a healthy and robust debate among legal professionals rather than a pre-packaged response to fit a predetermined policy. I have pointed out where I find lacunae – deliberately attacking low level targets or signature strikes. However, in general, the reasoning is careful and credible, pragmatic and carefully delineated. The courts will determine whether the rationale is definitive.

Whatever the results, the rule of law is once again the supreme authority in the United States in generals and governs the use of drones.

Finally, when considering lethal force I am of course mindful that there are important checks on our ability to act unilaterally in foreign territories. We do not use force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose constraints. According to the Obama doctrine, the United States of America respects national sovereignty and international law.

4. Ethical

In President Barack Obama’s speech in Oslo accepting the Nobel Peace Prize, the president said that “all nations, strong and weak alike, must adhere to standards that govern the use of force.” And he added: “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength.” This reflected his approach to broader questions regarding the use of force and the importance he placed on the use of force conforming to international legal norms.

John Brennan insisted that targeting enemies with drones was not only legal but ethical as well.

Targeted strikes conform to the principle of necessity, the requirement that the target have definite military value. In this armed conflict, individuals who are part of al-Qaida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we target enemy leaders in past conflicts, such as Germans and Japanese commanders during World War II.

Targeted strikes conform to the principles of distinction, the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted. With the unprecedented ability of remotely piloted aircraft to precisely target a military objective while minimizing collateral damage, one could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians.

Targeted strikes conform to the principle of proportionality, the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated military advantage. By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.

For the same reason, targeted strikes conform to the principle of humanity which requires us to use weapons that will not inflict unnecessary suffering. For all these reasons, I suggest to you that these targeted strikes against al-Qaida terrorists are indeed ethical and just.

If we begin with the use of lethal force via drone attacks, the use of drones armed with missiles is considered as conforming to the principle of necessity if those firing the drones are properly trained and, after careful consideration of the evidence, conclude that the individual targeted poses a significant threat to U.S. interests and the action is necessary to prevent future attacks and to mitigate an actual ongoing threat to save American lives. The threat cannot be an abstract one so the individuals targeted must be either high level leaders who initiate such plans or mid-level leaders either with expertise to produce the explosives or train others in their production or responsible for the execution of those plans. Thus, the threat must be a significant one. The targets cannot be low level militants, though low level militants can be killed in such attacks.

The strike against a particular individual must be intended to prevent an attack before it can be carried out or to disrupt the planning process in preparing such attacks. There is one other criterion in applying the "necessity" criterion: capture must be the preferred option, not elimination. And it is on this factor that the Obama program of using lethal drone attacks is most vulnerable to criticism. The administration has simply not justified its actions in showing that in every case capture was not feasible and lethal drones had to be used. Using the drones did not make their use illegal, but unless the option of capture was truly weighed, then the actions are unethical. With respect to Zero Dark Thirty and CIA objections to mis-portrayal in the film, the argument was never made that the account of bin Laden’s killing was basically inaccurate. There is no explanation of why he was not captured alive since he was by all accounts not armed when he was killed and the Americans were never able to possibly probe and find what intelligence might have been in his head. The Americans did capture Ahmed Warsame, a member of al-Shabaab in the Arabian Peninsula when he was traveling from Yemen to Somalia, but he stands out as a rare exception rather than the more predominant course of action.

What about the principle of distinction that requires attacks to be limited to military objectives. Civilians may be killed in accordance with the principle of proportionality which I have yet to discuss, but civilians and civilian structures should not be the object of the attack. "Signature strikes" pose a challenge to such a principle since by their nature, the object of the attack lacks clarity. Noticing a pattern of behaviour that accords with a militant group’s behaviour is precisely why signature strikes should not be authorized. The evidence is insufficient to support the objective and, in addition, the risk of collateral damage and breaking the principle of proportionality is too great.

The third principle of proportionality requires that any innocent civilian life lost in such an attack, or anticipated to possibly be sacrificed, must be in proportion to the military objective to be achieved. Put bluntly, the higher the value of the target, the greater the loss of civilian lives that can be tolerated. This cannot be interpreted to mean that one can simply ignore collateral damage to civilians or civilian property. Quite the reverse! In all cases, the greatest effort must be taken to minimize and mitigate harm to civilians and their property. It just means that after taking such care, the damage of civilians and their property cannot be excessive in relation to the target of the attack.

John Brennan argues that, "we only authorize a strike if we have a high degree of confidence that innocent civilians will not be injured or killed, except in the rarest of circumstances. The unprecedented advances we have made in technology provide us greater proximity to target for a longer period of time, and as a result allow us to better understand what is happening in real time on the ground in ways that were previously impossible. We can be much more discriminating and we can make more informed judgments about factors that might contribute to collateral damage."

This suggests that the more technology advances, the standards for proportionality increase so that we should expect fewer and fewer civilian casualties per militant killed. Brennan has even implied an almost zero tolerance for civilian casualties which I consider an impossible standard. "[T]here have indeed been occasions when we decided against conducting a strike in order to avoid the injury or death of innocent civilians. This reflects our commitment to doing everything in our power to avoid civilian casualties, even if it means having to come back another day to take out that terrorist, as we have done previously. And I would note that these standards, for identifying a target and avoiding the loss of innocent — the loss of lives of innocent civilians, exceed what is required as a matter of international law on a typical battlefield." According to the stats, they may have approached those standards in 2012, but I remain sceptical.

Brennan insists that, " despite the extraordinary precautions we take, civilians have been accidentally injured, or worse, killed in these strikes. It is exceedingly rare, but it has happened. When it does, it pains us, and we regret it deeply, as we do any time innocents are killed in war. And when it happens we take it very, very seriously. We go back and we review our actions. We examine our practices. And we constantly work to improve and refine our efforts so that we are doing everything in our power to prevent the loss of innocent life. This too is a reflection of our values as Americans." This suggests a new modification to the discrimination and proportionality rule – that when mistakes are made, reviews must follow to see what lessons can be learned to prevent collateral damage in the future.

CONCLUSION

Steve Coll ended his New Yorker piece, "Name Calling" (4 March 2013) with the following paragraph: "Jihadist violence presents an enduring danger. Its proponents will rise and ebb; the amorphous threats that they pose will require adaptive security policies and, occasionally, military action. Yet the empirical case for a worldwide state of war against a corporeal thing called Al Qaeda looks increasingly threadbare. A war against a name is a war in name only." Obama had replaced Bush’s War Against Terror with a war against al Qaeda and associated forces that seems to be a war without end.

I believe Jeh Johnson provided a reasonable answer to Steve Coll for defining that end. I also think that the various justifications for the use of drones to target enemies have answered such questions as clarifying why the war against al Qaeda counts as an armed conflict, that the issue of "immanent threat has been clarified, and made clear that the authorization for drone attacks must be under the direct authorization of the Executive Branch but without clarifying why the CIA rather than the armed forces have been charged with the task of implementation, though it has been suggested that it is a combination of their more direct access to eyes on the ground and the CIA’s greater nimbleness, practical matters of delivery rather than an assessment in terms of legal and ethical issues. The Obama administration has insisted that drone attacks cannot be carried out in countries where the ruling government objects to such attacks as an infringement on its sovereignty, but has not clarified the process whereby such objections can be registered. In fact, the administration has suggested that the sovereign state must explicitly concur in permitting such attacks, but given the behaviour of Pakistan, it also means that the sovereign state can publicly disavow any such approval.

According to the Obama doctrine, pre-emptive strikes are permitted, but here are three areas in which the Obama doctrine appears to fall woefully short. The Obama administration does not seem to have explicitly rules out targeting low level militants though the doctrine clearly implies they should be ruled out as targets, but the practice suggests this is certainly not always the case. The doctrine is clear in theory that capture is preferred, but the practice seems to point to killing as the first order of business. Third, the whole doctrine of signature strikes based on patterns of behaviour need to be explicitly ruled out if the Obama doctrine is to be taken at face value.

Finally, I want ironically to return to the principle of "last resort". Last resort does not mean that you try all other options first. It does mean that you consider other options as preferable if they are also both feasible and prudent. Since no outsiders have had access to the discussions on the use of drones, and since we have only had reassurances that the principle has been taken into consideration, I am unable to assess the degree to which this has been the case.

Tomorrow: Obama’s Resurrection of the Israeli-Palestinian Peace Process 28.02.13

[Tag Obama, drones, Brennan,
Johnson, discrimination, necessity, proportionality, just war]

Obama 19.Drones.Normative Debate.26.02.13.doc