Friday, August 13, 2004

August 2004

On The Fence, Gaza, NY Times Editorial, B'tselem Report, Civil Marriage in Israel, American Society, Reform Jewish Movement's Resolution on Israeli Unilateral Withdrawal, 9/11 Commission, American Society, Living Wills, Farewell Baltimore, New Book

Dear friends and colleagues,

The Fence
I wish to draw your attention to the following article:

By Mortimer B. Zuckerman
Comparative advantages
US News and World Report
2 August 2004
Compare scenes. In The Hague, 15 justices of the International Court of Justice solemnly order Israel to dismantle the security fence it is building to separate Israelis from Palestinians. In the Gaza Strip, meanwhile, the Palestinians, prevented from killing Israelis by a barrier that exists now, are busy murdering one another in factional warfare of gunfire, arson, and kidnappings. And in Ramallah on the West Bank, the Palestinian Authority is in turmoil yet again over the corrupt and incompetent leadership of the terrorist Yasser Arafat, one of whose chief critics emerged from a television interview to be shot twice in the leg.

Violence is the syntax of debate among Palestinians, as it has been the syntax of negotiation with Israel. It escalated in the first place not as the result of Israeli aggression but because of Israeli willingness four years ago at Camp David to yield control of 95 percent of the occupied lands as Israel had previously yielded all of the Sinai to Egypt. Even the United Nations Mideast envoy, Terje Roed-Larsen, a longtime supporter of Arafat, publicly attacked the PA recently for its failure to end violence, combat terrorism, and institute reforms that ordinary Palestinians have been demanding for years.

The flat-Earth assumption of the justices in The Hague, reinforced by a U.N. General Assembly vote on July 20--instigated in part by France--is that all Palestinians are ready to live in peace with the State of Israel and are thwarted only by Israel's intransigence. The General Assembly vote, under European pressure, did add a couple of ambiguous paragraphs about the duty of restraint on all sides, but in The Hague's judgment there was little mention of terrorism. It was a ruling taken in a practical and moral vacuum. The court washed its hands of the sure consequence: If Israel complied, scores more Israelis would be blown up by suicide bombings. Ultimately, the court placed the victims of terrorism on trial instead of the terrorists--a move emblematic of the hypocrisy of international diplomacy, remorseless in the face of the murder of Israelis yet highly agitated over a fence aimed at saving lives--just because it ostensibly impinges a little on land in the disputed West Bank.

In truth, the decision was preordained by politics--handed down, it should be noted, by a court composed in part of justices with only a nodding acquaintance with the rule of law and democracy. The head of the court, a Chinese justice, represents a country that invaded Tibet and has a questionable human-rights record. Some of the court's members come from foreign enemies of Israel, e.g., Egypt. The one dissenting American judge on the court nailed the key legal point: "To reach that conclusion with regard to the wall as a whole without . . . seeking to ascertain all relevant facts bearing directly on issues of Israel's legitimate right to self-defense, military necessity, and security needs, given the repeated deadly terrorist attacks in and upon Israel . . . cannot be justified as a matter of law."

Compare that blind justice with the careful ruling against the Israeli government on the routing of the fence by Israel's High Court of Justice, which the government has said it will accept. The court found the fence was not expressing a political border or any other border but was simply a barrier against the reality of Palestinian terrorism. But it still ordered the Army to alter a section to make it less oppressive to the Palestinians. This court had its eyes open--as The Hague's justices did not--both to the Palestinians most immediately affected and to the Israeli victims of the Palestinian campaign of terror, 900 dead and more than 6,000 wounded. It insisted that there must be a balancing of military necessity and humanitarian considerations: "Both international law and fundamental principles of Israeli administrative law recognize proportionality as a standard for balancing the authority of the military commander in the area with the needs of the local population."

Expertise over magic. In a memorable passage, the Israeli court affirms: " 'The security of the state' is not a 'magic word' which makes judicial review disappear. . . . The military commander is the expert on the military aspects of the fence's route. We are the experts on the humanitarian aspects of the route . . . whether the military commander's route inflicts disproportionate injury upon the local inhabitants. This is our expertise."

The court's ruling is a remarkable demonstration of the role of an honorable judiciary in a democratic state under mortal challenge. "Our task is difficult. We are members of Israeli society. Although we are sometimes in an ivory tower, that tower is in the heart of Jerusalem, which is not infrequently struck by ruthless terror. . . . As any other Israelis, we, too, recognize the need to defend the country and its citizens against the wounds inflicted by terror. . . . But we are judges. When we sit in judgment, we are subject to judgment. We act according to our best conscience and understanding."

With that perspective, the court decided to make the fence, in certain areas, more responsive to the needs of the local population while recognizing that its decision did not make it easier for military security. In effect, the court acknowledged that the delay in its completion might well come at the cost of terrorist attacks. "This is the destiny of a democracy: She does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties."

Indeed, building a fence is one of the most civilized ways in which nations can defend themselves, in Shakespeare's words, "against the envy of less happy lands," when they share a border with armed attackers who lack an effective government to constrain them. The Roman Emperor Hadrian ordered a wall to be constructed across the width of England to keep barbarians out. The Chin emperor ordered several walls to be linked to the Great Wall of China to repel barbarians. Well, we don't have barbarians today, but we have their modern equivalent in terrorists--with the Palestinian Authority a known safe haven and favorite breeding ground for them, especially the suicide bomber.

The U.N. itself built a fence around its headquarters in New York for protection. Likewise, India, Saudi Arabia, Morocco, and Turkey have built barriers to contain their neighbors. India just completed a 460-mile barrier in contested Kashmir to contain terrorist infiltration from Pakistan and is building a security fence similar to that being built by Israel to protect itself from Muslim terrorists coming in from Bangladesh. Saudi Arabia built a 60-mile barrier along an undefined border zone with Yemen to stop the smuggling of weapons.
Success. The bottom line is that the fence has worked. Secretary of State Colin Powell emphasized this in saying the fence issue should not even have been brought to The Hague. The American people recognize this full well. In a poll this year, 68 percent say the Israelis have a right to a security fence "even if many other countries disagree." The House of Representatives voted 361 to 45 deploring the misuse of the International Court of Justice and its advisory opinion that Israel's security fence should be dismantled.

The facts are conclusive: Before the fence was erected, the average number of terrorist attacks was 26 per year. Since its partial construction, the number has dropped to three per year, while the death toll has dropped by over 70 percent from 103 to 28, and the number of injured has dropped by more than 80 percent, from an annual average of 628 to 83. Terrorist penetration into Israel from the northern West Bank, where the initial portion of the fence was completed, has dropped from 600 a year to zero--as Israel was able to foil every suicide bombing originating from the northern West Bank and specifically from the cities of Nablus and Jenin, areas that had previously been infamous for exporting suicide bombers.

Only 5 percent of the fence is a wall to prevent fire from adjacent Palestinian communities onto Israeli areas. The height of this portion has in some places been raised, for example, as in Jerusalem--from 2 yards to 8 yards--because the terrorists jumped over the shorter wall. But in any event, it is a temporary, nonviolent way to reduce terrorism that has already saved many lives.

The fence brings benefits to the Palestinians as well: It will reduce friction between Israelis and Palestinians through the withdrawal of Israel from many settlements. The fence will also facilitate the removal of Israeli checkpoints and thus encourage greater freedom of movement within Palestinian areas. It will create an incentive for the withdrawal of Israeli settlements from the Palestinian side of the barrier, making the removal not a question of if but when. Fewer successful terrorist attacks mean fewer Israeli retaliatory defensive operations; finally, the route of the fence under this Israeli court decision will be much closer to the territorial proposals agreed to by the left-wing Israeli government in the Camp David talks and to the territorial settlements previously imposed.

Under the new court ruling, about 75 percent of Israeli settlers would be incorporated into roughly 8 percent of the West Bank on the Israeli side of the barrier. Fewer than 1 percent (13,000) of West Bank Palestinians would be stranded in these Israeli areas, while over 99 percent (1,970,000) would be left in the approximately 92 percent of the West Bank on the other side of the fence, which would be a contiguous area.

The Palestinians cannot have it both ways. They cannot avoid their security responsibilities while denying the Israelis the right to defend themselves, and they must pay a territorial price for the four years of terror they unleashed, for terrorism cannot be seen to succeed.
It has been said that if Israel is 10 percent more moral, it will be a light unto the nations; if it is 25 percent more moral, it will bring the Messiah; if it is 50 percent more moral, it will be dead. The Israeli High Court of Justice's decision brings a light unto the nations of the world. The International Court of Justice's advisory opinion would produce nothing but more dead innocents.

Israel did not withdraw from Gaza yet and the mess continues. Palestinian militants want to show they are alive and kicking, and what can happen after Israel's pulling out. Last month the IDF moved into Beit Hanun in response to the persistent Palestinian rocket attacks, many of them coming from militants hiding in orange and olive groves. The Palestinian rockets have a range of about five miles, contain a limited explosive charge and are extremely inaccurate, but an attack last month killed two Israelis.

The attacks have continued, and on August 4 Israeli forces shot and killed four Palestinians during clashes as the military expanded operations in the northern Gaza Strip to try to prevent rocket attacks being mounted from the area.

Israel's Chief of Staff, Lt. Gen. Moshe Yaalon, said that the military might continue pushing into northern Gaza if the rocket attacks did not stop. If the effort does not provide security for the Israeli village of Sederot, he said, "we will be forced to widen and deepen" the operation.

NY Times Editorial
August 4 was the 75th birthday of the Palestinian leader, Yassir Arafat, who has been confined to his damaged compound in the West Bank city of Ramallah for about two years. Arafat did not make any public appearances, and there were no reports of celebrations for him. It is not a time for celebrations. Maybe Arafat should start thinking of retirement and dedicate more time to himself and his family. After all, for long decades he worked diligently for his people at the expense of doing for himself, and he needs a lot of time to write his rich autobiography, and this is an important task that requires thinking and research. I sincerely wish him tranquil and productive retirement as a prolific author.

Indeed, on July 22 the NY Times called upon Arafat to resign and to go home, saying that he inflicted enough damage upon his people and completed his role in history. The Editorial says that Arafat has never transformed from revolutionary leader to statesman. He should clear the road to someone who is more suitable for this stage in Palestinian history.

Sometimes I wish newspapers have more power. If the Palestinians had someone of Nelson Mandela's stature, the conflict was resolved and sealed long time ago.

B'tselem Report
B'tselem is an Israeli organization that monitors human rights in the territories. In previous research I conducted on human rights violations, no. of Palestinians casualties, house demolitions, administrative detentions etc. I always tried to gather information from the IDF and to match the data with B'tselem's. Usually, the IDF numbers are lower in comparison to B'tselem's.

In a report published on August 9 B'tselem called the transportation policies imposed on Palestinians in the West Bank "the reign of forbidden roads." The report holds that Israel's policies on roads and highways are reminiscent of the apartheid regime in South Africa. The report's authors noted that, as opposed to South African policies, the Israel Defense Forces dared not document such practices in writing.

One of the differences between the Israel's policies in the territories and South Africa's former policies is that Israel cites security concerns while executing its policies. Israel's security services say that closing roads to Palestinian traffic prevents terror attacks on those roads and in Israel. B'tselem claims the policy is illegal and should be avoided.

In addition, say B'tselem officials, closing roads to all Palestinians is "a racist directive which constitutes a policy that indiscriminately harms all Palestinians, and therefore infringes on human rights and is a violation of international human rights and laws" (published in Haaretz, 9 August 2004).

Civil Marriage in Israel
A new survey determined that 70% of Israelis support recognition of civil marriage and 58% do not agree that civil marriage will cause a split in the Jewish People.

The survey, commissioned by the Forum for Freedom of Choice in Marriage, determined that 59% of the public support recognition of Reform and Conservative marriage ceremonies, in addition to Orthodox ceremonies.

On the contrary, 40% are convinced that only the Rabbinate should perform religious marriage ceremonies. The survey was conducted by Dahaf, headed by Mina Zemach. 500 individuals participated in the survey, constituting a representative sample of the Jewish population in Israel.

According to the survey, 75% of the secular population supports the proposal to allow civil marriage, versus 13% among the religious and ultra-orthodox public. 40% prefer to be married in a ceremony that is not an Orthodox one, yet 85% of these would incorporate Jewish characteristics in such a ceremony.

Only 6% of the Israelis responded that they would prefer to be married in a complete secular ceremony, without any Jewish characteristics. The survey also points out that the majority of Israelis today (77%) prefer an Orthodox marriage ceremony over a marriage abroad or signing a marriage agreement with an attorney.

The survey reveals surprising statistics concerning the “brit zugi’ut” (couples registration) that would enable registration in the Ministry of Justice: apparently 70% of the secular population do not support “brit zugi’ut” assuming it did not grant all the rights of a married couple. 53% of the secular population sees “brit zugi’ut as a good or reasonable answer for civil marriage. 45% of the secular population thinks “brit zugi’ut” is not a good solution or that it does not supply an answer at all.

Reform Jewish Movement's Resolution on Israeli Unilateral Withdrawal
On August 3, 2004 Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, sent a letter to Secretary of State Colin Powell informing him of a new resolution passed by the Union for Reform Judaism's Board of Trustees, entitled "Unilateral Withdrawals, Security Barriers, and Home Demolitions: Striving for Security and Peace in Israel and the Middle East." The resolution was included with the letter along with a copy of the new issue of Reform Judaism, which features several articles on the security barrier, including one by Rabbi Saperstein.

The Union's new resolution addresses Palestinian terrorism, Israeli security, unilateral withdrawal, the security barrier, and administrative home demolitions. The letter to Secretary Powell explains these new positions, expresses support and concern for recent Congressional actions regarding Israel, and urges the Secretary to support increased U.S. involvement in the peace process. The letter concludes, "For peace to emerge, unilateral Israeli withdrawal from Gaza and parts of the West Bank must be matched by the United States' vigorous pursuit of a return to the peace process."

The Union resolution on Israel is available at, and Reform Judaism's articles on the security barrier, including Rabbi Saperstein's article "High-Stakes Gamble," can be found at

On the 9/11 Commission
I wish to bring to your attention the following article, published by the Washington Post.

Stansfield Turner
Sunday, August 1, 2004; Page B01
The 9/11 commission's recommendations won't create a new intelligence structure. Mostly, they repackage what we have now. For instance, the recommended position of national intelligence director (NDI) already exists. It is the director of Central Intelligence (DCI) created by the National Security Act of 1947, with responsibility for coordinating the nation's 15 intelligence agencies. The DCI today has a staff just for this coordinating function. We don't need a new layer of bureaucracy. What we do need is a review of what authority a coordinator of intelligence should have, whether we call him or her an NID or a DCI.

The commission recommendation of separating the NID/DCI from the job of heading the CIA is a fine idea. The two jobs are more than one person should try to handle. And there is a conflict of interest in running one of the agencies that's being coordinated.

A serious problem today, which the commission addresses nicely, is that the 1947 law did not give the DCI sufficient authority to ensure adequate exchange of data among the agencies. It would take only an executive order from the president to give the DCI, or a new NID, the authority to set the standards for classifying secret intelligence materials. Today, each of the heads of the 15 agencies can create classification categories so as to exclude other agencies from their data. Some intelligence does deserve special treatment. But that should be decided by the NID/DCI, who has the national interest in view, not someone with an agency's perspective.
The same presidential executive order could give the NID the authority to set the budgets for all 15 agencies, to reallocate funds and people among them, and to set priorities for both collecting and analyzing intelligence, thus implementing the intent of the 1947 law. President Jimmy Carter gave me, as his DCI, that authority. This enabled a far greater degree of coordination than we have today.

Should a new NID be given a fixed term -- not to coincide with the president's -- to help insulate him or her from political pressures to twist the intelligence? Absolutely not. Why? First, because one responsibility of the chief of intelligence is to be intelligence adviser to the president. A harmonious working relationship between the two is essential. In the past, a number of DCIs have resigned and a number of others have been fired just because of a lack of rapport with the president. Second, because the NID/DCI's authority derives in good measure from the support he or she receives from the president, especially vis-à-vis the more powerful secretaries of defense and state. A close relationship with the president is a NID/DCI's lifeblood.

Finally and most importantly, a fixed term is a bad idea because we shouldn't overreact to the accusation of the day -- that is, the assertion that the Bush administration may have pressured DCI George Tenet and his people to slant the intelligence on Iraq. The idea behind a fixed term is to make the NID more independent, rather than serving at the pleasure of the current president. Thirty years ago, we reacted in exactly the opposite direction, establishing congressional and executive controls to rein in powerful DCIs and prevent them from overstepping legal and ethical bounds, as they were accused of doing in the 1950s and 1960s.
Let's not now re-invite this problem of the past in dealing with a problem of today. All that is needed is to select as NIDs people who will stand up to improper pressures. We also have two congressional committees on intelligence whose job it should be to blow whistles at the slightest sign that the intelligence process is being politicized.

Stansfield Turner, director of central intelligence from 1977 to 1981, is on the faculty of the School of Public Policy at the University of Maryland.

On the American Society
A few months ago I had an exchange with a friend who wishes to remain anonymous about the American society. Here it is.

Hi Rafi,

It is amazing to see the escalation in the divisive nature of American politics since 2000, and just as bad has been the increase in disparity between rich and poor. There has been a rape of the poor and middle class by the rich, and the amazing thing is that so many people seem to be unaware of what is happening. The accompanying loss of civil rights must be something that will cause a severe back-lash very soon.


Hi M.,

I disagree with your last statement. It is a great nation. The more I know it, the more I appreciate it. I am talking about grassroots. The people have a very good sense of democracy, of civil rights and liberties, of the values that underpin their nation. That there is corruption is not new. Corruption is everywhere. Wherever there is power, there is corruption.

Hence, I do not see the downfall of the American empire in the near future. Such processes take centuries. The US suffers from severe problems: crime, drugs, political extremism, homelessness, poverty, terrorism, and corruption. Their health system is the worse in the western world. Public education is bad in many places. Public transportation is appalling. Many things in the infrastructure of society are not working properly. Still, it is an amazing place, with many good things to offer: cultural diversity, belief in freedom, belief that if you work hard you will find your place, belief that you are living in the best country in the world, strong pride and patriotism. People are proud to live here. They feel they are part of THE world empire. For me, it is the best place in the world to conduct research. If you are rich, you have the best that life can offer (this is true for every society, more so here). Unfortunately, the leaders did not find the way to decrease the gap between rich and poor. I agree that the gap, so it seems, is growing.

The US is a vast country with much to see and absorb. Life here is far more relaxed and comfortable than in other countries I know. One has less worries and stress, and has the ability to enjoy life far more, and this is true in a comparative level for all classes. The American empire will not last forever, but I do not think it will fall during this century. Eventually, internal problems mentioned supra will bring it down, as was the case with all empires in history.

The very best,


Hi Rafi,

I agree with most of what you say. However, I will stick with my prediction that there will be a back-lash, not just on civil rights, but possibly on many other grounds as well. If the current administration is re-elected, and even if it is not, there will be a severe economic adjustment, if not melt down, after the election. At present interest rates are being held artificially low, and it is a fundamental contradiction that at times of record and increasing public sector deficits interest rates can be low. Even if a Democrat is elected to the White House he will not be able to do much to ameliorate the economic fall-out from the present misguided policies.

And in fields like civil rights, there are many people in the US who are already deeply concerned over legislation such as the Patriot Act. There was a time when if such legislation was enacted elsewhere the US Administration would have condemned it as an affront to democracy and individual rights and freedoms. Now we see even the courts are becoming less able or willing to stand up for individual freedoms and democratic protections. The electoral gerrymandering you mentioned in Texas is a case in point. Anywhere else in the democratic world the courts would have ruled that as an unconstitutional abuse of power. And now we are told that even after the debacle of the 2000 presidential election there is a high probability that systems will not be able to guarantee the accuracy of the vote count in 2004!

It is obviously true that many Americans still hold to the dream and believe in the visions you mention of freedom, the virtues of hard work, etc. But believing something does not necessarily make it so and the sense of disillusionment that comes from seeing the corporate greed and corruption and the deliberate results of policies aimed at transferring wealth from the lower to the higher socio economic groups, will ultimately have an adverse effect on the society.

I did not predict that the downfall of the American empire would happen in the near future. But it might happen much sooner than you think. I remember that the collapse of the Soviet Union happened much faster than most pundits thought. We cannot compare the empires of the past with what happens in modern times. These days events move much quicker, it is the nature of modern society.

The very weakened and distorted infrastructure that you mention will soon reach a critical mass point on the downward spiral. Until then things might look OK on the surface, especially from your vantage point, but once the slide develops into an avalanche it will cause almost instantaneous collapse of the society.

I don't predict a specific time for this but I reckon it will certainly be before the end of this century. You and I can compare notes from another place!

Cheers Rafi.


On Living Wills
For all those interested in the subject I recommend the insightful article of Angela Fagerlin and Carl E. Schneider, "Enough: The Failure of the Living Will", Hastings Center Report Vol. 34, No. 2 (March-April 2004): 30-42.

The authors lucidly indicate the problems involved in writing, and abiding by living wills. Those who have, or think of having living wills, are advised to read it.

Farewell Baltimore
As the year at Hopkins comes to a close, I wish to thank people here who opened their hearts, bestowed their kindness and made the time in Baltimore memorable: Mary Jo and Steve, Louise and Boris, Hadassah and Levi, Carole and John, Marina and Bill, Efrat and Guy, Frances and Tim, Mati, Yardena and Ori, Ayelet and Dan, Aviva, Max, Mark, Agnes, Amy and Christian. It has been a privilege to know you all. I hope we will keep in touch.

New Book
It is always nice to see that one of your former students is publishing. Daphna was my student at the Hebrew University Law School and she now spends time in Oxford. Although I did not read her book yet, I am sure it is intriguing and interesting: Daphna Baram, Disenchantment: The Guardian and Israel (Guardian Books, 2004).

I hope to see you in Israel.

With my very best wishes, as ever,
RafiMy last communications are available on http://almagor.blogspot.comEarlier posts at my home page: