An interim report - RESEARCH on "why"

The tediousness of research sometimes yields ideas and explanations that simply must be shared. Such a find is a recent article by Dr. Ian S. Lustick, who is the Chair of Political Science at the University of Pennsylvania. The article is "ABANDONING THE IRON WALL: ISRAEL AND 'THE MIDDLE EASTERN MUCK'." It is in the current issue of MIDDLE EAST POLICY XV.3 (FALL 2008).

This article provides a way of thinking about the background of the Holy Land Foundation trial as part of a broad, desperate and irrational means for Israel to defend itself in a situation which more and more Israelis are coming to understand is untenable. Israel's reaction, however, is not to adopt a rational approach, but to "hunker down" and live in a world of constant violence in order to put off the inevitable. The tragedy for all Americans, especially Muslim Americans and Arab Americans, and most particularly for the leaders of the HLF, is that our government aids and abets the Israeli government in this irrationality rather than insisting that reason prevail. And we have seen this irrationality, and the absolute wrong-headed conviction that it is what it isn't (that is, reasonable) played out in first Judge Fish's court, and then in Judge Solis's court.

Professor Lustick explains the earliest thinking of the Zionist leaders regarding the use of force in the beginning of the takeover of Palestine in the 1940s:

From page 30:
"But day-to-day experience and their own nationalist ideology gave Zionist leaders no reason to expect Muslim Middle Easterners, and especially the inhabitants of Palestine, to greet the building of the Jewish National Home with anything but intransigent and violent opposition. The solution to this predicament was the Iron Wall — the systematic but calibrated use of force to teach Arabs that Israel, the Jewish 'state-on-the-way,' was ineradicable, regardless of whether it was perceived by them to be just. Once force had established Israel’s permanence in Arab and Muslim eyes,negotiations could proceed to achieve a compromise peace based on acceptance of realities rather than rights."

Dr. Lustick goes on to explain that the Zionists never expected the Palestinians to accept the justness of the Jewish state, but their goal was simply to force the Arab world to accept the existence of Israel as a "fact."

From page 32:
"Thus a corollary of the Iron Wall strategy was that Zionism would not demand Arab recognition of the justice of the Zionist project. It would demand only that eventually Arabs would accept the reality and permanence of a Middle East that included Jewish immigration and a Jewish polity. With characteristic eloquence, Foreign Minister Abba Eban put this point very clearly in a speech in1970, identifying the root cause of the continuation of the Arab-Israeli conflict as:

'....the refusal or the inability of Arab intellectual and political leadership so far, to grasp the depth, the passion, the authenticity of Israel’s roots in the region….The crux of the problem is whether, however reluctantly, Arab leadership, intellectual and political, comes to understand the existential character of the Middle East as an area which cannot be exhausted by Arab nationalism alone. There are some governments which in a benevolent spirit, offer to secure the consent of the Arab states to the recognition of our right to exist. It is sometimes my duty to say that we do not ask any recognition of our right to exist, because our right to exist is independent of any recognition of it' (Abba Eban, Speech to Commonwealth Club of California, November 14, 1970).

That is, according to Dr. Lustick, the Israeli position is that the entire problem in the Middle East is the refusal of the "Arab intellectual and political leadership" to understand Israel's right to exist, quite apart from any just or peaceful explanation of it. And so, because the Palestinians will not accept the fact that Israel has the right to exist, the only alternative for the Israelis is to consider the Palestinians as violent, less than civilized people.

From page 34:
A natural feature of this overall outlook is an image of the Arab/Muslim world, and the Palestinians in particular, as irrational, brutal and violent, imbued with intractably anti-Semitic hatreds fortified by deeply anti-Western, Muslim- fundamentalist fanaticism. Against such an enemy deterrence is only barely possible, and only by suppressing the natural human instincts of Israelis. Consider, for example, the work of Efraim Inbar, director of the Begin-Sadat Center for Strategic Studies at Bar-Ilan University. Inbar is a much published scholar and commentator on military, political and security affairs who identifies with and has long reflected the thinking of right-of-center politicians, including the once and perhaps future prime minister Benjamin Netanyahu. Referring to the Palestinians’ “psychotic hatred of Jews,” Inbar has urged an end to Israeli apologies for accidentally killing Palestinian civilians:

'We are confronted by a society that is mesmerized by bloody attacks, relishes the sickening sights of Palestinian militias playing with the severed limbs of dead Israeli soldiers, and savors gory images of maimed Israeli bodies, victims of a bus explosion. Tragically, Palestinian society seems to enjoy even the sight of its own dead. Rather than break away from the psychological mold the Palestinian national movement has propagated so successfully for years it seems to prefer the role of victim. Israel’s apologies only reinforce such a dysfunctional preference….The Palestinians do not deserve any apologies — just condemnation for their outrageous behavior. These repeated apologies are also counterproductive in a strategic sense. Expressing sorrow and extending sympathy projects softness, when what is required is an image of determination to kill our enemies. Only such an image can help Israel acquire a modicum of deterrence against the bestiality on the other side" (Efraim Inbar, “Stop Saying Sorry,” Jerusalem Post, May 30, 2004).

Professor Lustick asserts that this hardening attitude toward the Palestinians has even become standard in the thinking of the "new historians" in Israel who had begun in the 1990s to study and write openly about the realities of the history of Israel rather than the myths. Professor Lustick offers a lengthy quotation from a newspaper interview with Benny Morris.

From page 35:
Benny Morris is the dean of Israel’s“new historians.” He laid the groundwork for widespread recognition of Israeli policies of Arab expulsion in 1948. During the first Intifada, he went to prison for refusing to serve in the army in the occupied territories. More recently, Morris has joined in the despair and fury that marks so much of Israeli public commentary across much of the political spectrum. In a lengthy interview with Ari Shavit, Morris portrayed the Palestinian people as a whole as a “serial killer” and called for them to be treated accordingly:

Morris: The barbarians who want to take our lives. The people the Palestinian society sends to carry out the terrorist attacks, and in some way the Palestinian society itself as well. At the moment, that society is in the state of being a serial killer. It is a very sick society. It should be treated the way we treat individuals who are serial killers…. Something like a cage has to be built for them. I know that sounds terrible. It is really cruel. But there is no choice. There is a wild animal there that has to be locked up in one way or another. . .
Morris: I think there is a clash between civilizations here [as Huntington argues]. I think the West today resembles the Roman Empire of the fourth, fifth and sixth centuries: The barbarians are attacking it, and they may also destroy it.
Shavit: The Muslims are barbarians, then?
Morris: I think the values I mentioned earlier are values of barbarians — the attitude toward democracy, freedom, openness; the attitude toward human life. In that sense they are barbarians. The Arab world as it is today is barbarian….
Shavit: Is it really all that dramatic? Is the West truly in danger?
Morris: Yes. I think that the war between the civilizations is the main characteristic of the twenty-first century. I think President Bush is wrong when he denies the very existence of that war. It’s not only a matter of Bin Laden. This is a struggle against a whole world that espouses different values. And we are on the front line. Exactly like the Crusaders, we are the vulnerable branch of Europe in this place (Ari Shavit, “Survival of the Fittest? An Interview with Benny Morris,” Haaretz, January 16, 2004).

Professor Lustick argues that the movement from a Zionist rationale for violence as a method of "teaching a lesson" that Israel exists and will not be moved has become virtually violence for its own sake as a means of punishing the "barbarians." He says that Israel's use of violence since the First Intifada has been a desperate escalation of fear and isolation.

As I have stressed, Zionism’s use of violence against Arabs was traditionally conceived as a pedagogical device to convince Arabs of the Jewish National Home’s indestructibility, and then to persuade some among them to negotiate mutually acceptable deals based on the alternative of suffering painful defeats. It is natural, then, that, as images of a future in which Arabs and Muslims can come to accept the Jewish state fade from Israeli consciousness, the rationale for violence also changes. Instead of being conceived as a persuasive instrument in service of political or diplomatic aims, force against Arabs and Muslims is increasingly treated as a kind of rattonade. This was the term used to characterize the French practice in Algeria [in the 1950s when the Algerians fought for their independence] of entering casbahs and other Muslim quarters, killing inhabitants, and then quickly returning to European areas or bases. Its literal meaning is “rat hunt.” More generally, it refers to a violent strike against the enemy “on the other side of the wall” for purposes of punishment, destruction and psychological release. While Sharon and other Israeli military leaders in the 1970s and 1980s made the slogan sbang ve’gomarnu (“smash and we’re done”) popular, and while . . . many Israeli military operations can be understood as at least in part motivated by the desire to satisfy psychological or domestic political requirements, Israel’s long-term strategy for moving Arab-Israeli relations closer to peace by the use of force has never been more conspicuous by its absence than in the years since 2000. . . . Of course, the most regular expressions of this (strategically) nonrational use of Israel’s coercive capacity are Israeli policies: targeted assassinations of Palestinian leaders, entry into Palestinian zones by Israeli intelligence agents and reconnaissance units to capture or kill particular individuals, missile attacks, bombing raids and temporary, but devastating search-and destroy ground incursions. Even during the Oslo period, the irrationality of conducting strikes that destroyed the credibility and efficacy of Palestinian leaders while demanding more effective governance by the Palestinian Authority never became important, let alone decisive, in Israeli political discourse. Today, moral or strictly“professional” military criticism of particularly cruel or “disproportionate” raids in Gaza, the West Bank, or Lebanon can still be heard. However, specific evaluation of these measures based on their political rationality — i.e., the likelihood that they might enhance or undermine chances for progress toward a peace settlement — is almost entirely absent.

A Thanksgiving Greeting to John Ashcroft, Judge Fish, Judge Solis, and Persecutor Jacks

GRATEFUL TO LIVE IN A COUNTRY WHERE

BANKERS WHO RAPE OUR ENTIRE ECONOMY

RECEIVE 100'S OF BILLIONS OF DOLLARS IN THANKS

WHILE HUMANITARIANS WHO FEED STARVING CHILDREN

ARE SENT TO JAIL

I WISH MR. ASHCROFT, THE JUDGES,

AND THE ENTIRE PERSECUTION TEAM

A BLESSED THANKSGIVING, FILLED WITH JOY
AND FREEDOM OF CONSCIENCE.

This is my blog and I can be as bitter as I want to be.
Grief makes one do strange things, I'm sure,
except for the noble friends and families of the defendants
whose faith in right and justice is greater than mine,
and whose spiritual grace would never allow them to be this unkind.

An Open Letter to my fellow Christians

My assumption is (I know making assumptions is dangerous) that most of my friends think I'm a Cassandra ("Or am I prophet of lies, a babbler from door to door?" Cassandra. Aeschylus, Agamemnon, line 1194).

Be that as it may, I am mystified, startled, dumbfounded and constantly---day by day---grieved by my friends' reactions to my friendship with and support of the Palestinian-American and Muslim communities of North Texas.

On the day after yet another political trial in America, a trial which violated the basic premises of our historical jurisprudence, I pray that somehow, some day our nation may once again be a beacon of liberty and justice for all. The conviction of my friends Shukri Abu-Baker, Mohammad El-Mazein, Ghassan Elashi, Mufid Abdulqader, and Abdulrahmen Odeh on charges of an alleged conspiracy to provide material support to Hamas---and their absurd immediate imprisonment---will some day be seen as exactly the same kind of bigotry and terrorism against a minority in America as the internment of Japanese Americans during World War II.

Americans, by and large, are so hoodwinked by the terrorism industry that has our government in a stranglehold that truth cannot emerge from its dicta. That is especially so when the truth that struggles to emerge concerns the Palestinian people. Americans believe there is a terrorist behind every bush in Israel. Americans believe that the Palestinian people terrorize the Israeli people (without, of course, pausing to ask themselves how a people who have been ethnically cleansed from all but about 10% of their land, who have no effective government or armed forces, who live in cities with 60% unemployment, whose farmland has been confiscated, and who are packed together in enclaves without sufficient water or electricity or gasoline or food can possibly be a threat to anyone). Americans are simply brainwashed to believe that what is not true is true. And the prosecution in the HLF case made sure that the jury abandoned all ability to think through twisted evidence to find the truth. I will be glad to sit with you and explain exactly how that is true, or you may wait until the appeals court throws the case out.

You will, I assume, say that I am once again railing about my obsession. But consider this one tidbit of fact that I pull from the infinite number I could quote. Speaking about his book, The Bin Ladens (Penguin, 2007), Steve Coll reports that, "Mohamed Bin Laden [Osama bin Laden's father] bought a house in East Jerusalem during the early to mid-1960s, while he was supervising a renovation project at the Al-Aqsa mosque in Jerusalem's Old City. The property was in territory overwhelmed by Israeli forces in the June 1967 Arab-Israeli war; the house was ultimately taken over by Israel's land authority. Mohamed died in September 1967 and the family never reclaimed the property. In a legal sense, at least, although they are not native to Palestine, the Bin Ladens actually are part of Palestine's displaced population." Do you really think the status of the Palestinian people is just "another one of those world problems?"

Americans, blithely and remarkably ignorant of their own self interest, believe what our government says about "terrorism," without having a clue (or caring to understand) about the background of our diminishing place in the world. And Americans refuse to understand the importance of the Palestinian struggle for existence. As long as Americans believe that Israel's interests are our interests and that the Palestinians, the VICTIMS of sixty years of Holocaust-like destruction of their persons and their society, are the PERPETRATORS of the violence in the area, we will never have peace in Iraq or Afghanistan, or with the Iranians, or in any other part of the world where people feel themselves religiously or ethnically related to the Palestinians. This is, of course, true even aside from the moral issues of our unthinking support of Israel.

I challenge you to read the following excerpts from the monograph "The Ethics of Belief" of 1877 by the English philosopher and mathematician William K. Clifford (1845-79), and as you read, think about where your beliefs about the Palestinians, the Israelis, and terrorism in general came from. Do you believe for worthy or unworthy reasons? Are you helping our entire society to suffer “…from the maintenance and support of false beliefs and the fatally wrong actions which they lead to…?”

Yours in hope,
Harold

No real belief, however trifling and fragmentary it may seem, is ever truly insignificant; it prepares us to receive more of its like, confirms those which resembled it before, and weakens others; and so gradually it lays a stealthy train in our inmost thoughts, which may some day explode into overt action, and leave its stamp upon our character for ever. . . .
And no one [person's] belief is in any case a private matter which concerns [himself or herself] alone. Our lives are guided by that general conception of the course of things which has been created by society for social purposes. Our words, our phrases, our forms and processes and modes of thought, are common property, fashioned and perfected from age to age. . . .
Into this, for good or ill, is woven every belief of every [person] who has speech of [his or her] fellows. An awful privilege, and an awful responsibility, that we should help to create the world in which posterity will live. . . .
It is not only the leader of men, statesmen, philosopher, or poet, that owes this bounden duty to mankind. Every rustic who delivers in the village alehouse his slow, infrequent sentences, may help to kill or keep alive the fatal superstitions which clog his race. Every hard-worked wife of an artisan may transmit to her children beliefs which shall knit society together, or rend it in pieces. No simplicity of mind, no obscurity of station, can escape the universal duty of questioning all that we believe. . . .
And, as in other such cases, it is not the risk only which has to be considered; for a bad action is always bad at the time when it is done, no matter what happens afterwards. Every time we let ourselves believe for unworthy reasons, we weaken our powers of self-control, of doubting, of judicially and fairly weighing evidence. We all suffer severely enough from the maintenance and support of false beliefs and the fatally wrong actions which they lead to, and the evil born when one such belief is entertained is great and wide. (William K. Clifford, 1877)

Holy Land Foundation VERDICT: to "say true" does not "make true"

Are the Daughters of Zion rejoic[ing] greatly? (Zechariah 9:9)

They might well be. The guilty verdicts in the Holy Land Foundation trial are a gift for the daughters of Zion. But the jury's saying their decision is true (verdict comes from Old French, ver - "true," plus dire - "to say") does not make it true.

We Americans have now stooped so low as to condemn American citizens for seeking to give food to the hungry, to provide something to drink for the thirsty, to welcome the stranger, to give clothing to the naked, to provide care for the sick, and to minister to those in prison.

Purely at the behest of the State of Israel, we have condemned these good men and the tens of thousands of Muslim Americans who gave their resources to provide for their sisters and brothers in Palestine.

The State of Israel was founded in violence, established in ethnic cleansing, and in terror and occupation has nearly completed its obliteration of any hope for a homeland for the Palestinian people, and the United States "justice" system operates as an arm of that regime of terror. Yes, I might as well go completely over the top and say what I think: mene, mene, tekel, parsin. America will be "weighed on the scales and found wanting." (Daniel 5)

Ah, you destroyer, who yourself have not been destroyed;
you treacherous one, with whom no one has dealt treacherously!
When you have ceased to destroy, you will be destroyed;
and when you have stopped dealing treacherously,
you will be dealt with treacherously. . . .
Listen! the valiant cry in the streets;
the envoys of peace weep bitterly. (Isaiah 33)
.

The Holy Land Foundation (re)trial: the prosecution's narrative of HATE.

Mr. Jim Jacks, Assistant District Attorney for the United States District Court for the Northern District of Texas—not surprisingly—epitomizes those who accept without question the American narrative regarding the founding, buttressing, and expansion of the “Jewish” State of Israel. This well-known narrative (or is it well-known? how many Americans understand that this is not a “religious” or “cultural” struggle that has lasted for centuries?) begins with Jacob Herzl in the 1890s, agitating for a Jewish state—meeting with the Sultan of the Ottoman Empire, holding the first international Zionist Congresses, and establishing ties with governments as disparate as Great Britain, Egypt, and Russia.

The narrative will reach its climax with the expansion of the “Jewish” State of Israel to encompass the entire area from the Jordan River to the Mediterranean, from the Golan Heights to the Sinai. And perhaps even farther in any given direction. Israel will include what its Jewish citizens refer to as “Judea and Samaria,” what all other nations know are the Occupied Palestinian Territories of the West Bank.

This narrative has been conflated in the American consciousness with the narrative “fear of terrorism.” The two narratives are conflated for the purpose of making an (absurd) association in Americans’ minds between a perceived threat to the final solution of Israel’s expansionism and the (amorphous) “terrorism” threat to American society. This combined narrative is kept alive by the American “terrorism industry” (1).

Professor Mueller asserts that the first and most important membership of the “terrorism industry” are the Bureaucrats. In his closing argument of the Holy Land Foundation (re)Trial, Mr. Jacks proved beyond reasonable doubt that he is part of the “terrorism industry.” Indeed, Mr. Jacks is the consummate bureaucrat. Agents Burns and Miranda are also effective and valuable members of the same “terrorism” bureaucracy.

In his closing argument in the Holy Land Foundation (re)trial, his voice dripping with disdain, Mr. Jacks told the jury, “We have heard over and over again—all we’ve heard about—is the ‘Occupation.’” He then recited his worn out litany of the “terrorist” activities of Hamas, and, by extension, of all Palestinians whether in the Occupied Palestinian Territories, Gaza, Dallas, or Richardson. Chief of these are, of course, “suicide bombings.” Mr. Jacks asked the jury if this meant two or three bombings, reminding the jurors of the bogus American narrative that Hamas carries out a suicide bombing every day.

(Here is a meaningless statistic— meaningless because the death of any civilian is an atrocity. However, the Israeli Defense Force website itself contravenes Mr. Jacks’ attempt to harness this narrative—it lists 167 suicide bombings since 1993—the year of the first such attack in Israel. That’s an average of 11.83 per year, but almost half of those were perpetrated during the two to three years of the Second Intifada. I do not need or intend to get into a statistics battle here; all of the statistics anyone needs to support her or his particular narrative are at http://www.ifamericansknew.org/ )

As part of the Terrorism Industry, Mr. Jacks can do nothing other than to conflate narratives, one on top of the other in order to obscure every thread of information that might lead to Truth. Mr. Jacks, Condoleezza Rice, George W. Bush, Rahm Emmanuel—even Barak Obama—or any other person in authority can try all they want (and succeed with the American people, perhaps including jurors, as the great American Tragedy of our time) to make obscurity into truth. But this conflation of narratives makes “terrorists” of those who resist the obliteration of their culture (to say nothing of their families) and rewards the oppressor with protection, investment, and permission to expand its state by destroying others. Because of the entrenchment of layers of narrative, all of the rhetorical devices are on the side of tyranny, both Israeli and American.

There is, however, one device that is not rhetorical. Even Mr. Jacks cannot obliterate the truth of one picture—a photograph of the Palestinian hillside across the valley from the Salesian Brothers Cremisan Winery at Beit Jala near Bethlehem, cradled in the hills between Occupied East Jerusalem and the rest of the Occupied Palestinian Territories. The winery itself would long since have been taken by Israeli expansionism were it not for its powerful friend in the Vatican City.

Stretched out from Bethlehem as far as the eye can see toward Jericho, arrogantly perched on hilltops for “protection” and for insult, are expansionist Israeli settlements. They were not there five years ago. Neither Mr. Jacks nor anyone else can argue the importance of the Occupation to the Palestinian people. It is not a mere "narrative."

Photo by Harold Knight, June, 2008

Yes, Mr. Jacks, that’s all we need to hear about: The Occupation. Because that’s all there is, and no narrative that you fabricate can excuse it or make it anything other than a monstrous affront to human decency.

______

(1) Mueller, John. “Fear Not: Notes from a Naysayer. Politicians, bureaucrats, and the media all have a vested interest in exaggerating the threat of terrorism—which is exactly what Al Qaeda wants.” Bulletin of the Atomic Scientists 63.2 (Mar/Apr2007): 30-37.

Sniffing for Dollars

Flash! An important message to the United States Departments of

Defense, State, and Homeland Security!

Assistant District Attorney Jacks of the District Court for Northern Texas has discovered a fantastic way to save the United States as much as $6,000,000,000 per year!

You see, Mr. Jacks has this friend named (well, Mr. Jacks’ friend is shy, so we don’t really know what his name is) Mr. Avi (that’s what Mr. Jacks calls him in public). And Mr. Avi should immediately be put on the payroll of the DOD, the DOJ, or the DHS. He has the most splendid natural ability.

Everyone knows that one of the main reasons we have to send Israel that $6,000,000,000 every year (it depends on whom you ask what the exact figure is, but it’s a LOT—more than to any other country) is for them to find members of Hamas and assassinate them.

Some of us have known for a year that Mr. Avi has a special talent that could save US a whole pile of money. He can “SNIFF OUT” Hamas. This is no joke. He testified to his remarkable ability under oath in the Holy Land Foundation trial. I'm embarrassed that I've waited so long to pass this information on to Secretary Rice or Secretary Gates or Secretary Chertoff, this fabulous money-saving plan. (I guess I was being un-patriotic.) Hire Mr. Avi (pay him millions if necessary—that would still be a savings over $6,000,000,000). Then, of course, just as Secretary Chertoff teaches dogs to SNIFF OUT drugs at security check points, Mr. Avi could teach some of the rest of us to SNIFF OUT Hamas.

I regret not thinking to suggest this after Mr. Avi testified last year. Imagine all the money we could have saved Mr. Jacks on this trial! He could have brought Mr. Avi over for a few weeks this summer and had him sniff around the defendants’ homes and among their friends to find any Hamas members. I would gladly have let him sniff my home—except he probably would have been unable to differentiate between the smell of Hamas and my cats. Oh well.

Take heed, Secretary Rice, Secretary Gates, and Secretary Chertoff. I’m sure Secretary Paulsen would be grateful if you could free up another $6,000,000,000 for him to give to some bank.

A LITTLE WONDERMENT IS A DANGEROUS THING in the Holy Land Foundation (re)Trial

Any university professor of writing knows nothing is more absurd than a first-year university student’s attempt to make an “argument” about a subject that she has only just discovered and researched for one evening. With this writing, I am not unlike my students.

A little learning is a dang'rous thing;
Drink deep, or taste not the Pierian spring:
There shallow draughts intoxicate the brain,
And drinking largely sobers us again. (1)

A layperson’s reading of legal opinion is a dangerous thing. I don’t have a clue. All I can do is read and wonder. I wonder why courtroom proceedings (in the HLF trial, at any rate) seem to devolve into nonsense. Don’t take my wonderings for anything like knowledge; that would be a dangerous thing.

I wonder why the US District Court of the Northern District of Texas seems to have adopted the rules of evidence of a foreign country.

“Israeli judges and legal scholars [argue] that rules of admissibility [are] conceptually alien to the Israeli legal system: they were devised primarily for juries, to shelter lay fact finders from exposure to unreliable evidence and data that would unfairly bias their decision. Israeli judges [voice] frustration with . . . .rigid admissibility rules that often [force] judges to disregard . . . evidence” (2).

The HLF prosecutors (and the court itself) seem to believe that the Israeli model of admissibility of evidence that might be “unreliable” applies to US trials. Never mind that the Israeli system does not have juries, but has only “professional” judges. Because the Israeli system allows professional judges “exposure to unreliable evidence,” assuming they are capable of sorting it out, the HLF prosecutors think US courts should follow the Israeli example and hope the “lay fact finders” (the jury) can sort out unreliable from reliable evidence. I wonder.

“American judges citing foreign law already bear a considerable burden to prove why the United States. . . . should care or follow what others say or do. . . .it may be useful (and humbling) to pause and wonder why the United States should be different and whether, when standing alone on a legal issue, it is on the proper side of the debate” (3).

It is no wonder to me. The reason our legal system is different is we have a constitution (which Israel, for example, does not) that guarantees certain rights to all citizens (and to foreigners living in the US). Among those rights are trial by a jury of one’s peers, the right to confront witness against oneself, and the right of protection from unlawful search and seizure, that is, the right—as interpreted by the Supreme Court—to be accused of crimes based only on evidence which is gathered by certain inviolable rules.

“The standard of cross-examination required…ultimately seeks to assure the reliability at trial of statements previously made by witnesses. Since that reliability depends on the perception, memory, and veracity of a witness whose credibility may be wholly unknown, effective cross-examination of the witness assures that the evidence may be sufficiently probed” (4).

I wonder why, if the Supreme Court has ruled that “effective cross-examination of the witness assures that the evidence may be sufficiently probed,” a District Court in Texas can allow anonymous witnesses (agents of a foreign government testifying under the government’s claim that their work is “classified” for “security” purposes) to testify since there is no way the defense can “sufficiently probe” their testimony. Of course, I’m not alone in wondering this. And many of us have been wondering about this for a couple of years. It is indeed perplexing (to say nothing of frightening).

And then there is the overarching wonder that evidence and testimony that is imprecise, nuanced, and completely subjective permeates this trial so as to make it, as I have said before, “surreal.”

“Although [translators] describe themselves as ‘neutral mouthpieces,’ ‘invisible,’ or mere ‘bridge[s] of communication,’ they are actually none of these; the act of interpretation invariably alters the meaning of a speaker’s utterance . . . . Despite the high stakes involved, legal scholars and practitioners remain largely unaware of the way interpretation works and of the effect of interpretation on testimony. Instead, they view interpretation merely as a technical issue” (5).

Almost all of the evidence in this trial involves translation. My wonder reaches the point of stupefaction. Am I, lowly professor of rhetoric—that is, merely someone who is interested in words and what they mean and how they are used—the only one who believes that translation is more than trying to make a word in one language equal a word in another? When a German speaker in the middle of a sentence says ja, does she mean yes or Ummm? When my mother said she wanted pop, did she mean she’d like a Coke or was looking for my dad?

“What makes interpretation so difficult is that it is useless to translate words into their literal equivalents because people do not communicate only by the strict denotative meanings of words. Ideally, all interpretation aims to achieve an “integral communication of meaning” that centers on ideas expressed rather than individual words uttered. Specifically, an interpreter. . . . [does] his or her best to preserve the import of the speaker’s words, phrases, colloquial expressions, gestures, and the like” (6).

Matthew Levitt, Agent Burns, Agent Miranda, Bruce Hoffmann, and the Israeli Mystery Guests all rely on translations that may or may not give any real sense of what was actually said or written.

“The U.S. Supreme Court has given legal force to this notion: ‘Language permits an individual both to express a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond.’ Of course, some of this misunderstanding is due to bias and ethnic, religious, or racial prejudice of trial participants. Bias on the part of translators may also contribute…” (7).

I wonder.
_____________
(1.) Pope, Alexander. (1688 - 1744) in An Essay on Criticism, 1709. (In Greek mythology, Pieria was the home of Mount Olympus and the seat of worship The Muses. Drinking at the “Pierian Spring” would give one great knowledge and inspiration.
(2.) Blum, Binyamin. “Doctrines without Borders: The ‘New’ Israeli Exclusionary Rule and the Dangers of Legal Transplantation.” Stanford Law Review 60.6 (Apr2008): 2146.
(PhD candidate, Stanford School of Law. The Hebrew University BA, JD, Law. Law Clerk, Supreme Court of Israel, 2003-2004.)
(3.) Blum 2163
(4.) “The Supreme Court, 1969 Term.” Harvard Law Review 84.1 (Nov70): 113.
(5.) Karton, Joshua. “Lost in Translation: International Criminal Tribunals and the Legal Implications of Interpreted Testimony.” Vanderbilt Journal of Transnational Law 41.1 (Jan2008): 3-4.
(PhD Candidate, University of Cambridge; Columbia University School of Law, Juris Doctor, 2005; Yale University, Bachelor of Arts in Political Science and Humanities, 2001.)
(6.) Karton 26
(7.) Karton 28