An Open Letter to Cornel West, James Zogby, and the Democratic National Convention Platform Committee

Dear Drs. West and Zogby,

Thank you for your magnificent job in trying to convince your fellow platform writers to embrace a more balanced approach to the Israeli-Palestinian conflict. Unfortunately, your arguments did not persuade your fellow committee members and the national security of both Israel and the U.S. are endangered by their failure to heed your advice.  While your questions were powerful and accurate, there were a number of points that you did not raise that should be considered when deciding whether to acknowledge that Palestinians live under occupation. I therefore provide the following analysis in the hopes that it will help you convince your fellow platform committee members to modify the current draft recommendations on Israel and Palestine and to take a more balanced approach.  

The following video provides  highlights of your questions to Robert Wexler and Matt Duss

The Occupation

Pretending that Israel does not occupy Palestinian land requires us to ignore the statements of the following, primarily Israeli, experts.

1. Ron Huldai, the mayor of Tel Aviv and a former Israeli Air Force pilot, blamed the occupation as a factor leading Palestinians to terrorism.  Huldai said,

There is no way to hold people in a situation of occupation and think that they will reach the conclusion that everything is okay and they will continue to live like that.

2. Avraham Shalom, the leader of Shin Bet from 1980 to 1986, acknowledged the occupation.  I hope you can convince your fellow convention delegates to watch the Oscar nominated move "The Gatekeepers".  If they do they will see Shalom sorrowfully admitting that

The future is bleak.  It's dark, the future.  Where does it lead?  To a change in the people's character because if you put most of our young people in the army, they'll see a paradox.  They'll see it strives to be a people's army, like the Nahal unit, involved in building up the country.  On the other hand, it's a brutal occupation force, similar to the Germans in World War II.  Similar, not identical.  And I'm not talking about their behavior toward the Jews.  That was exceptional, with its own particular characteristics.  I mean how they acted to the Poles, the Belgians, the Dutch. . . To all of them... The Czechs.  It's a very negative trait that we acquired, to be... I'm afraid to say it, so I won't.  We've become cruel, to ourselves as well, but mainly to the occupied population, using the excuse of the war against terror.  

3. Even former Israeli Prime Minister Ariel Sharon, considered by many to be the Father of the settlements, recognized that the Palestinians were under occupation.  In 2003 he said,

You cannot like the word, but what is happening is an occupation -- to hold 3.5 million Palestinians under occupation. I believe that is a terrible thing for Israel and for the Palestinians.  It can't continue endlessly. Do you want to stay forever in Jenin, in Nablus, in Ramallah, in Bethlehem? I don't think that's right

4. In 1967, right after the Six Day War, Israel's Foreign Ministry asked Theodor Meron his opinion on whether settling in the West Bank violated international law.  Meron is a Holocaust survivor with a doctorate in international law from Harvard University.  Meron wrote a top secret memo that concluded

civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.

Read this for more on the Meron Memo

5. Bibi Netanyahu appointed a commission headed by former Supreme Court Justice Edmond Levy in 2012 to look at the legality of settlements in the West Bank.  Surprise! Surprise! This Commission, appointed by Israel's leader investigated Israel's settlements and determined Israel did not violate international law.  However, buried within the Levy Commission's report was an acknowledgement that the International Commission of the Red Cross is the authoritative interpreter of the Geneva  Convention.  Unfortunately for Israel and those who support the occupation, Juan Pedro Schaerer, head of the ICRC delegation for Israel and the Occupied Territories, wrote a response that gutted the Commission's report like a dead fish.  Schaerer's letter concluded that

contrary to what is claimed in the Levy report, it is manifestly clear that the West Bank is occupied by Israel. Indeed, the Israeli Supreme Court has repeatedly and consistently ruled that the territory of the West Bank is subject to belligerent occupation. . . .

If these prominent Israelis and the authoritative interpreter of the Geneva Convention can recognize that the Palestinians are under Israeli occupation, then the Democratic platform can and should recognize it too.  If your fellow delegates resist, remind them that former Israeli Prime Minister Ehud Barak said that the current Israeli government contains "the seeds of fascism".  Ask them if they really want to unquestioningly support a government that contains the seeds of fascism.  Writing blank checks to support fascism is Donald Trump's territory and the Democrats should not try to compete on Trump's home turf.

Some might argue that the Oslo Peace Accords legalized the settlements and transformed what had been an occupation into something other than an occupation.  Note that Avraham Shalom, Ariel Sharon, and Ron Huldai didn't buy this argument. Also note that in 2001 Netanyahu was caught on video bragging about how he used a loophole in the Oslo Peace Accords to "defacto put an end to the Oslo Accords".  Though continued settlement growth doesn't violate the letter of Oslo, it stomps all over its spirit.   Bonus feature: in the same video Netanyahu said that "America is something that can be easily moved." Pay close attention to 3:56-4:08 and 5:12-6:45 of the video below.

Wexler responded to West's questioning about whether it was fair to use the word "occupation" in referring to Palestinians living in the West Bank by saying 

I would not support, and would in fact oppose the use of the word "occupation" for the very reason that it undermines our common objective.  Your objective and my objective, and more importantly the objective of Secretary Clinton, of President Obama, of the Democratic Party is to achieve a negotiated Two State Outcome. . . . anything short of a two state outcome . . . the Palestinian people will not seek and receive what they justly deserve and the Israeli people will not achieve what they justly deserve.   So we have to consistently keep with behavior that promotes and encourages a two state outcome. . . . 

There is one big problem to Wexler's approach.  Most Israelis have given up on a two state solution.  Certainly those running the country aren't interested.  In fact, there is reason to doubt that Netanyahu was ever really sincere when he expressed his desire for a two state solution.  Today, most in the government back expanding settlements and some want to annex at least part of the West Bank.  Only four of 20 Israeli Ministers polled last week would openly support a two-state solution.  And a poll last year by the Palestinian Center for Policy and Survey Research showed that nearly two thirds of Palestinians believe that settlement expansion has made a two-state solution impractical.  The pure two-state solution is either dead or on life support.  This leaves either the one-state approach in which Israel is likely to lose its Jewish majority or a two-state one homeland approach--a confedracy that is a hybrid between a two-state and a one-state solution.

In any case, despite Wexler's contention, refusal to acknowledge the occupation will not get us closer to the goal of a two-state solution.  Refusal to acknowledge the occupation only gives Israel a free hand to continue its oppressive occupation.  We have given Israel a free pass on its occupation for nearly fifty years.  No matter how much we cajoled Israel not to build more settlements, Israel raised its middle finger towards us and the world and built them anyway.  By now we should realize that wringing our hands and issuing statements deploring settlement expansion isn't enough.  The only way to permanently stop settlement expansion and take steps to end the occupation is to pressure Israel--either through government sanctions or through some kind of boycott movement.

Unconstitutional Anti-BDS (Boycott/Divestment/Sanctions) laws. 

There is a growing movement around the country to pass laws that punish those who engage in and advocate boycotting Israel.  Israel's supporters tried to get such a law passed in New York State, but they failed.  King Governor Andrew Cuomo, seeing that this law couldn't pass in the usual manner, issued an edict executive order that would punish BDS supporters by forbidding the state to contract with them.  It also requires the state to compile and publish a McCarthyesque list of entities that support BDS.  Whatever you think of the BDS movement, laws such as this are wildly unconstitutional. Lara Friedman Director of Policy and Government Relations of Americans for Peace Now, explains why

However one may feel about boycotting Israel [which APN opposes] or boycotting settlements [which APN supports], all such boycotts by private individuals and their businesses are personal decisions and fall under the category of constitutionally-protected free speech. Writing in March 2015 about just such laws, then-head of the Anti-Defamation League, Abraham Foxman, summarized the matter succinctly: 

Legislation that bars BDS activity by private groups, whether corporations or universities, strikes at the heart of First Amendment-protected free speech, will be challenged in the courts and is likely to be struck down. A decision by a private body to boycott Israel, as despicable as it may be, is protected by our Constitution.”

Specifically, the EO runs afoul of constitutionally-protected rights and constitutional doctrine and practice in the following ways:

·         Free Speech: The U.S. Constitution (Amendment I and Amendment XIV) bars Congress or any state from “abridging the freedom of speech.”  The Supreme Court (most notably in NAACP v. Claiborne Hardware Co. 458 U.S. 886 (1982) ruled clearly that economic boycott is protected free speech.

·         Unconstitutional-conditions: According to the unconstitutional-conditions doctrine, as articulated clearly by the Supreme Court (in Perry v. Sindermann 408 U.S. 593 (1972):

 “For at least a quarter-century, this Court has made clear that, even though a person has no ‘right’ to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Such interference with constitutional rights is impermissible.”

·         Vagueness: The “void for vagueness” or “overbroad” doctrine hold that a law is unenforceable if its terms are so vague of overbroad that the average citizen could not be certain what conduct is or is not permitted. The EO clearly falls into this category, with language that is prima facie vague and overbroad (e.g., “any activity,” “promote others,” “coercing political action,” “affected state entities”).

·         Chilling Effect: Chilling effect is defined as follows: “In constitutional law, the inhibition or discouragement of the legitimate exercise of a constitutional right, especially one protected by the First Amendment to the United States Constitution, by the potential or threatened prosecution under, or application of, a law or sanction.” As articulated by Justice Brennan in his dissent on Walker v. City of Birmingham 388 U.S. 307 (1967):

“We have molded both substantive rights and procedural remedies in the face of varied conflicting interests to conform to our overriding duty to insulate all individuals from the ‘chilling effect’ upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”

Even those who hate BDS should oppose Governor Cuomo's Executive Order because it sets a bad precedent.  Many people have been boycotting North Carolina because of its anti-LGBT law.  In fact, Governor Cuomo issued a travel ban in March to prevent New York State employees from traveling to North Carolina for non-essential business.  Governor Cuomo is against anti-LGBT laws, but he has set a precedent that a conservative  governor could use to punish those in his state who boycott or advocate a boycott of North Carolina. The fact that Cuomo is simultaneously mandating a boycott against North Carolina while penalizing a boycott against Israel indicates that he hasn't thought out the Constitutional implications of the right to boycott very thoroughly.  When you penalize boycotts that you personally find loathsome, you open the door for others to penalize boycotts you support.  The platform should contain a statement declaring that while government officials may oppose the BDS movement, they should support for the Constitutional right to boycott.

If rumors are true, and the administration boycotts @AIPAC it will damage the US-Israel alliance. AIPAC is Israel's national strategic asset

— Michael Oren (@DrMichaelOren) February 21, 2015

Update 7/3/16 7:15 pm: You can send comments to the DNC Platform Committee through their form on this page.