'Litigating Palestine' At A Public-Funded Law School
by Stephen Schwartz
The University of California's Hastings College of the Law recently demonstrated its utility in the "lawfare" offensive against Israel by hosting a conference on March 25-26, 2011, titled, "Litigating Palestine: Can Courts Secure Palestinian Rights?" The event drew about 75 law students, faculty members, and pro-Arab activists. Police were present at the entrances to the building, as well as at the door of a second room where the proceedings were visible on video, and a large sign warned that disruptive individuals would be excluded.
Hastings was to officially cosponsor the conference, with a welcoming address by its dean, Frank Wu. But both were canceled after local Jewish leaders expressed their objections to the one-sided character of the conference in a meeting with Wu and other Hastings officials.
Hastings faculty opposed the decision to withdraw sponsorship, and law professor George Bisharat, who set up the conference, told Bob Egelko at the San Francisco Chronicle that "opponents had wrongly accused the conference of 'Israeli-bashing.'" In fact, that's exactly what took place at the conference. The anti-Israeli rhetoric of the participants was notably extreme, and even bizarre.
Throughout the first day of the conference, denunciation of Israel as an "apartheid state" comparable with the formerly-segregated South Africa was obnoxiously common, as were claims that American Arabs and American Muslims face bias similar to that of ethnic Japanese in the Western U.S. and Canada subjected to internal relocation during WWII. Yet an even worse element of anti-Israel rhetoric was present: equating Israeli relations involving Palestinians and Arabs with slavery and segregation in the U.S. In doing so, the participants flaunted equal ignorance of Middle Eastern and American history.
The first panel, "Palestinian Claimants and Defendants before U.S. Courts," began with Gwynne Skinner, an assistant professor of clinical law at Willamette University Law School in Portland, Oregon. Her discourse was elaborately titled, "The Nonjusticiability of the Middle East: U.S. Human Rights Litigation and the Misuse of the Political Question Doctrine."
Skinner, as lead counsel in Corrie et al. v. Caterpillar, represented the relatives of Rachel Corrie and four Palestinian families who alleged complicity of Caterpillar Corp. in purported human rights violations during the 2003 Israeli demolition of houses occupied by Palestinians on the Gaza border.
Corrie died when she attempted to block a bulldozer operated by the Israeli Defence Forces (IDF). An IDF internal investigation concluded it was an accident, while the International Solidarity Movement (ISM), and other radical anti-Israel activists, claim that it was a deliberate killing. But nobody has denied that Corrie intended to obstruct the bulldozer and, therefore, put herself in harm's way.
At Hastings, Skinner criticized the U.S. Ninth Circuit Court of Appeals in the Caterpillar suit for applying the legal doctrine that "political questions" (i.e. issues involving American policy and foreign nations) must remain within the purview of the legislative branch rather than coming under the authority of the judicial branch. In 2007, the Ninth Circuit dismissed Corrie et al. v. Caterpillar on these grounds.
Skinner suggested that pro-Palestinian litigants whose petitions and suits are rejected by American courts under the "political question" doctrine try extending the legal jurisdiction over American contractors working in Iraq -- established in 2008 under the U.S.-Iraq Status of Forces Agreement -- to American corporations such as Caterpillar that do business in Israel. Later, during the question and answer period, Skinner expressed her belief that if the Iraq-based contractor cases had come into the courts before Corrie, the plaintiffs' complaint might have had better standing. She also denounced as "racist" that, in her view, Americans see Israel as a victim and the Palestinians as terrorists.
The second panelist, Noura Erakat, is an adjunct professor at the Center for Contemporary Arab Studies (CCAS), housed in Georgetown University, which Middle East analyst Asaf Romirowsky has described as "awash in Saudi money and heavily influenced by the late Edward Said's ideology of ubiquitous Orientalism," and "perhaps the most Wahhabi-friendly university in America." As embodied in CCAS, Georgetown has used Saudi donations to justify the doctrines of the Wahhabi sect of Islam, the most radical and violent form of fundamentalism to claim the mantle of Sunnism.
Erakat -- who is the niece of Saeb Erakat, the former spokesman and negotiator for the Palestine Liberation Organization (PLO) -- began her speech on "Palestinians in U.S. Federal Courts: Constructing a 'Terrorist' Prototype" by declaring that she would not address issues in litigation but, rather, "post-modern ideological racialization"; the "social construction of race" as a human category; and Arab-Muslim identity as the "fabrication of a racial minority" in the U.S. Adopting the jargon-laden, opaque idiom of contemporary Western humanities professors, Erakat criticized "reification," or the transformation of abstractions into concrete things; the supposed relegation of the Arabs and Muslims to "other" status; and an "internal projection" by the majority of Americans as to what they think about Arabs and Muslims. She said support for Israel has become "central to the construction of U.S. identity" and that Israel has "insider status" as a "pillar" of American self-definition. She continued by alleging that "U.S. institutions have a built-in acceptance of Israel's insider status" and that "the identity of Israel's critics" is based on the "construction" of them as "outsiders."
Erakat counter-posed U.S. support for Israel with what she described as American backing for "authoritarian regimes" in the Arab world, but then caught herself in light of President Barack Obama's decision to intervene against Libyan dictator Muammar al-Gaddafi. Perhaps judging the Hastings audience to be composed mainly of Obama supporters, she interjected, "maybe not so much lately." But she complained that U.S. legislation against terror-sponsoring governments included Iran, Iraq, and Libya, before adding, "Libya could be removed [from the list]." She appeared unaware that Libya was removed from the U.S. State Department's roster of state sponsors of terrorism in 2006, and she ignored the status of Iraq, which was deleted from the list in 2004 after that country's liberation from the control of Saddam Hussein.
Incredibly, according to Erakat, the Lebanese Shia Muslim radical militia Hezb'allah had never threatened the U.S. or U.S. citizens. This ignores a U.S. court finding in 2003 that responsibility for the 1983 Beirut barracks bombing, which left 241 U.S. Marines dead, lay with Hezb'allah and its state sponsor, Iran. Erakat disparaged U.S. support for the human rights demands of Chechens and Kosova Albanians, who, she said, the U.S. favored because in the mind of the American public, the Chechens and Kosova Albanians do not have "issues" with Israel. Above all, she protested what she described as the designation of people who should be simply called "Palestinians" as "terrorists."
In a weird attempt to contrast the present-day view of Israel held by the majority in the U.S. with official attitudes toward ethnic Japanese living in America during WWII, Erakat argued incoherently that "Israel [sic] enjoys citizenship and full status in the U.S." Answering a question from the audience, Erakat claimed that "criticism of Israel is seen as criticism of the U.S." by the American populace and that U.S. laws against assisting Palestinian terrorists are comparable to Plessy v. Ferguson, the 1896 U.S. Supreme Court decision upholding racial segregation based on the maintenance of "separate but equal" facilities. She advised her audience that changes in the public outlook about Arab opposition to Israel would eventually arise, just as in 1954 the Supreme Court issued its decision in Brown v. Topeka Board of Education finding segregation of schools to be illegal. After the panel, Jules Lobel, a law professor at the University of Pittsburgh and keynote speaker for the session, explicitly identified the Jewish state and its relation to Palestinians with American slavery.
The import of the Hastings seminar was clear: Advocates for radical Arabs and Islamists will not be dissuaded by defeat from pressing "lawfare" efforts in U.S. courts. While they claim they desire equal protection under law, the intent of the radicals is to fundamentally transform it and its applications in favor of their extremist Arab and Muslim clients. This is ideological activism disguised as legal advocacy, and it's an old habit of the left.
American anti-Israel lawyers intend to use the American judicial system, in tandem with international human rights institutions, to achieve what they cannot gain in U.S. legislation or before public opinion: isolation, criminalization, and penalization of Israel and its supporters and business partners around the world. In this endeavor, no rhetorical excess is too extreme or repellent. Hastings officials were correct in withdrawing their sponsorship and canceling the participation of their dean in this effort.
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