‘Litigating Palestine’ at a Public-supported Law School

April 26, 2011, 8:08 am


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 removedfrom 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 Kosovo Albanians, who, she said, the U.S. favored because in the mind of the American public, the Chechens and Kosovo 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.

Stephen Schwartz is executive director of the Center for Islamic Pluralism. He is a UC Berkeley alumnus and was a staff writer for the San Francisco Chronicle from 1989 to 1999. He wrote this article for Campus Watch, a project of the Middle East Forum.

*American Thinker
April 24, 2011
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Cross-posted with permission


Related: Academia, Anti-Semitism, Israel, Law, Palestinians, Political Correctness

8 Responses to “‘Litigating Palestine’ at a Public-supported Law School”

  1. Lee Says:

    You repeatedly commit the offense of prejudging people’s character based on their institutional affiliations. Consequently, those who support basic civil rights for self-identified Palestinians are deemed radical Muslims. This blatantly skews your evaluation of a conference that was largely concerned with securing basic civil rights for individuals, and the associated Constitutional questions surrounding those fundamental civil rights.

    Furthermore, universities – particularly public universities – should emphasize and support academic freedom. Such universities should not be swayed or induced into political bias by any interest group, regardless of that interest group’s size or monetary entanglement with the institution. Free and unfettered discourse is the solution to humanity’s largest problems, and I challenge you to find one person who was restricted from participating in this event.

    Again, you mischaracterize the event. As an established journalist, I would expect you to have a better handle on checking your bias at the door.

  2. publisher Says:

    No. You are the one who should check his own bias at the door. This was just another totally biased Israel-bashing event:

    …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. …

  3. Rfaelmoshe Says:

    Simply, the use of “apartheid” as applied to Israel is libelous. Apartheid is a legal term of art, with a specific meaning including the INTENT to discriminate between citizens based on “race”. This is not the case in Israel, as the INTENT is clearly security based. When people insist on having their own private laws, its called “prolegs”, and the “Palestinians ” and their naive Western supporters have thus arrogantly claim all sorts of privileges not available to others, apparently including the privilege of “having words mean what I say they mean!”

  4. publisher Says:

    You can be sure that if Israeli PM Netanyahu was speaking at Hastings, throngs of “academically-free” and “open-minded” thugs would either shout him down, try to prevent him from even getting a speaking engagement, and/or throw chairs through windows (like at Concordia). Remember Daniel Pipes’ speech being disrupted at the University of California-Irvine? One “protester” shouted:

    … “it’s just a matter of time before the State of Israel will be wiped off the face of the map,” in response to which the crowd, self-exiled, standing in the dark and the cold, yelled out “Takbir” and “Allahu Akbar.” …

    This isn’t “academic freedom,” it is incitement to violence and fascist.

  5. Sonia Says:

    Well said Rfaelmoshe! America is for Americans, anybody else who wants to make it their home must abide by American law or go back to their backward countries where they are much worse off than anybody ever was or is in Israel. Israel and America are far too tolerant.

  6. Dean Says:

    The ‘lawfare” and the Boycott, Divestment and Sanctions (BDS) gangs are looking very weak and stupid these days with the internecine wars raging between Muslims and their leaders, between Muslims and other Muslims and between Muslims and other religions. In fact, their persistent habit of ignoring the carnage in the Muslim world and their ridiculous claims that all problems in the Middle East stem from Israel’s historical, political, legal and biblical claims to the former British Mandate (minus Jordan which was given away as a gift to the Arabs) borders on insanity. There are plenty of crazy people espousing a lot of garbage but when universities and revered institutions give these freaks the stage without any opposition; that is when we have to decide if our contributions and donations to these institutions need to be reassessed. These events tend to bully those who disagree with their rant and suppress the “free speech” of those who oppose their diatribe – free speech which they madly claim is their right. Turns out that free speech is of the type they have in Islamic dictatorships that uphold sharia, jihad and terror.

  7. Hinda Says:

    While I should be shocked at what Hastings College has done, I am not. After all this is the area where “J Street” was formed. Also where synagogues have to hire police and/or security personnel on Jewish High Holy Days and on other events. I cannot understand why the very “professors” who have broken the laws by supporting terrorism (such as the late Edward Said and others) are not deported for breaking the terms of their visas. In law, even one who becomes an American citizen CAN have that taken away if they do support an enemy of the US – i.e. Hezbollah, Hamass, PLO, Al Queda, etc.

    I suppose there has to be a huge crime – like some bombs going off at a Hillel House or Chabad before people start to wake up. The similarities between this and 1938 Europe is frightening. Even when churches like the Universalists, Presbyterian are not even allowing Jews to enter when they have “mutli-faith” sessions should be an all telling sign that history is repeating itself. Thank you for the article. Well done.

  8. publisher Says:

    Everyone, except the first commentator, read the first comment. Doesn’t it say it all? Pure sophistry. Amidst the hatred espoused against Israel, all he can come up with is the worn-out “academic freedom” excuse and double-speak that anyone who criticizes the PC hatred of Israel — maybe even with taxpayer money — is “mischaracteriz[ing] the event.”

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