November 16, 2018

Episode 102 – Bannon’s Canons and the Nation-State Bill

Photo by Raheem Kassam.

Behind every great man stands a great political strategist. As far as political earthquakes go, Donald Trump’s victory in November 2016 was at least an 8 on the Richter scale. Right up until the last second, no one saw it coming. But a few people were probably less surprised than most of us and one of them is surely Steve Bannon.

Considered by many to be the architect of Trump’s rise to the White House, Bannon is certainly a controversial figure. To most, he’s a either the despicable leader of the Alt-right or the savior of American pride and nationalism. And to the rest, he’s an enigma. Luckily, we’ve got Gadi Taub.

About a month ago, Dr. Taub, a senior lecturer at the Hebrew University of Jerusalem, was able to sit down for about 2 hours with the man himself. You can find his in-depth analysis piece on the Haaretz website.

Although Bannon’s been dismissed from the administration, it seems that he might be the key to understanding the currents of change that took place and that are continuing to take place in America, as well as the Jews’ place in all this mess.

We’re thrilled to welcome back Gadi to the podcast to disambiguate Bannonism for us once and for all.

Critics of Nation-State Law Misunderstand Israel’s Constitutional System

Israel’s new nation-state law has elicited a storm of criticism since it passed on July 19. Some of this criticism is justified; a law that manages to unite virtually the entire Druze community against it, despite this community’s longstanding support for Israel as a Jewish state in principle, clearly wasn’t drafted with sufficient care, as even the heads of two parties that backed the law (Jewish Home’s Naftali Bennett and Kulanu’s Moshe Kahlon) now admit. Nevertheless, much of the criticism stems from a fundamental misunderstanding of Israel’s constitutional system.

Israel doesn’t have a constitution. What it has is a series of Basic Laws to which the Supreme Court unilaterally accorded constitutional status. Many people, myself included, disagree with that decision, inter alia, because constitutional legislation should reflect a broad consensus, whereas many Basic Laws were approved by only narrow majorities or even minorities of the Knesset. Nevertheless, both sides in this dispute agree on one thing: Each Basic Law is merely one article in Israel’s constitution or constitution-to-be. They cannot be read in isolation, but only as part of a greater whole.

Consequently, it’s ridiculous to claim that the nation-state law undermines democracy, equality or minority rights merely because those terms don’t appear in it, given that several other Basic Laws already address these issues. The new law doesn’t supersede the earlier ones; it’s meant to be read in concert with them.

Several Basic Laws, including those on the Knesset, the government and the judiciary, detail the mechanisms of Israeli democracy and enshrine fundamental democratic principles like free elections and judicial independence. There are also two Basic Laws on human rights, both of which explicitly define Israel as a “Jewish and democratic state.”

Of these human rights laws, the more important is the 1992 Basic Law: Human Dignity and Liberty. It includes general protections like, “There shall be no violation of the life, body or dignity of any person as such” and “All persons are entitled to protection of their life, body and dignity,” as well as specific protections for liberty, property and privacy. Though the law doesn’t mention “equality” or “minority rights,” the courts have consistently interpreted it as barring discrimination on the eminently reasonable grounds that discrimination fundamentally violates a person’s dignity (the one exception, which all legal systems make, is if discrimination has pertinent cause, like barring pedophiles from teaching).

It’s ridiculous to claim that the nation-state law undermines democracy, equality or minority rights merely because those terms don’t appear in it, given that several other Basic Laws already address these issues.

Granted, there are things this law can’t do, such as breaking the rabbinate’s monopoly on marriage and divorce, because it explicitly grandfathers all pre-existing legislation. But it applies to all legislation passed after 1992.

Thus to argue that the nation-state law is undemocratic because it doesn’t mention equality or minority rights is like arguing that the U.S. Constitution is undemocratic because Articles I and II confer broad powers on the legislature and executive without mentioning the protections enshrined in the Bill of Rights. Everyone understands that the Constitution’s provisions on governmental power aren’t supposed to be read in isolation, but in concert with the first 10 amendments, so there’s no need to reiterate those rights in every other article. Similarly, the nation-state law isn’t meant to be read in isolation, but only in concert with other Basic Laws enshrining Israel’s democratic system and basic human rights. Thus there’s no reason for it to reiterate protections already found in those other laws.

Nor are any of the law’s specific provisions undemocratic. For instance, the provision stating, “The right to exercise national self-determination in the State of Israel is unique to the Jewish people” doesn’t deprive Arabs of individual rights within Israel, nor does it bar the possibility of Palestinian self-determination in the West Bank and Gaza, which aren’t part of the State of Israel. The only thing it prohibits is an Arab state within Israel’s borders, which is problematic only if you favor replacing Israel with another Arab state.

As for the provision making Hebrew the state’s only official language, many other democracies also have a single official language despite having large minorities with different mother tongues. For instance, 17 percent of the United States’ population is Hispanic, only slightly less than the 21 percent of Israel’s population that’s Arab, yet Spanish isn’t an official language in the U.S., and few people would argue that this makes it undemocratic.

Indeed, Israel’s new law goes much further than many other democracies in guaranteeing minority language rights, thanks to one provision according Arabic “special status” and another stating that nothing in the law “undermines the status enjoyed by the Arabic language in practice before this Basic Law came into effect.” The latter provision actually preserves Arabic’s status as an official language de facto. It may have been stupid not to preserve it de jure, as well, but “stupid” isn’t the same as “undemocratic.”

All of the above explains why even the heads of the Israel Democracy Institute — a left-leaning organization usually harshly critical of the current government — said at a recent media briefing  that the law “doesn’t change anything practically,” “won’t change how the country is run” and is merely “symbolic and educational.”

The law was meant to solve a specific constitutional problem: The courts have frequently interpreted the Jewish half of “Jewish and democratic” at a “level of abstraction so high that it becomes identical to the state’s democratic nature,” as former Supreme Court President Aharon Barak famously said. Yet no definition of “Jewish” can be complete without recognizing that Judaism has particularist, as well as universal, aspects because it’s the religion of a particular people with a particular history, culture and traditions. By emphasizing some of those particularist aspects, the law is supposed to restore the intended balance between the Jewish and democratic components of Israel’s identity. But it doesn’t eliminate those democratic components, which are enshrined in numerous other Basic Laws, nor was it intended to do so.

I’m skeptical that the law will achieve its intended purpose, but I see no good reason why it shouldn’t exist in principle. Israel isn’t just a generic Western democracy; it’s also the world’s only Jewish state. And its constitution-in-the-making should reflect both halves of its complex identity.

Evelyn Gordon is a journalist and commentator living in Israel.

Those with a Criminal Record Can Now Have a Second Chance Thanks to New State Law

It appears as though a new state law in New York will give those with a criminal record a second chance of sorts by sealing two previous misdemeanors, or one previous felony as long as it is non-violent. The first client to make use of this new law has now done so. The person was convicted in the 1980s in Nassau County with a misdemeanor. His criminal record has now been sealed by a Long Island court. The goal of the new law is to give non-violent offenders a second chance without a criminal record to deal with.

Why is a Second Chance So Important?


This move to give non-violent offenders a second chance has stemmed from the issues these convicted people have trying to find a job and even housing. It’s quite common for potential employers to ask if a person has been convicted of a crime or felony, and housing applications typically ask the same. When a person answers yes, they risk being turned down.

The new law, which is meant specifically for low-level offenders, went into effect on Oct. 7, 2017, so it is still relatively new. In fact, many non-violent offenders with a record may not even know this new law exists and that they can have their record sealed.
Before the law went into effect, the state of New York was actually among a minority of states that didn’t allow for second chances. The state has now taken a step in the direction of the majority of the country by allowing these non-violent offenders a chance at a clean slate. California is an example of another state that allows for this second chance.

Who Can This Law Help?


As for the type of convicted criminals, this law can help, it will help those who have been convicted of crimes such as a minor drug transaction, shoplifting, and driving under the influence. The idea is that they have already served a sentence and/or pay fines, so it shouldn’t have to sit on their record and affect the rest of their lives.

The crime may have been committed when they were younger and have since matured, or they have gotten help for their issues during this time. The law aims at not punishing people for the rest of their life for a mistake.

What Should You Do?


If you currently have a criminal record yourself and you’re wondering if this new law can help you, it’s a good idea to contact a criminal defense attorney in the state in which you were convicted, such as the attorneys at Kostopoulos Law Group LLC, who can provide you with information and advice.

One Mistake Doesn’t Have to Determine a Person’s Future


Thanks to this new law in New York, one mistake no longer has to determine a person’s future as there is a very real chance that a clean slate is indeed possible.

Israel’s ‘Jewish state’ proposal is cheap political posturing

In recent days, Israel’s Cabinet has engaged in an unedifying debate over proposed legislation for a new “Basic Law” that aims to enshrine Israel’s character as the nation-state of the Jewish people. The discussion has little to do with Israel’s essence and much to do with cheap political posturing.

At a Cabinet meeting on Nov. 23, ministers voted 14-6 to endorse two draft proposals put forward by right-winger parliamentarians. Prime Minister Benjamin Netanyahu voted with the majority, while Justice Minister Tzipi Livni and Finance Minister Yair Lapid led the opposition. On Dec. 2, Netanyahu fired Livni and Lapid and called for the dissolution of Parliament and new elections.

Israel is alive with speculation right now that the elections could come as early as March 2015, and politicians are naturally maneuvering for advantage. Netanyahu, sensing the fiercely nationalist and anti-Arab mood following a series of deadly terrorist attacks in Jerusalem, appears eager to harness this political tide.

The drafts taken up in the Cabinet were highly objectionable, because they clearly made Israel’s democratic character subservient to its Jewish identity. One would strip Arabic of its status as an officially recognized language. In the other, democracy does not constitute part of the state’s identity but merely “its form of government.” 

Netanyahu’s idea was to take these proposals to the Knesset for a preliminary vote and then replace them with a more measured draft of his own. But the rancorous debate, which threatened to bring down the government, forced him to delay. Then, Israel’s new president, Reuven Rivlin, dealt a powerful blow to the whole scheme with a speech at the annual conference of state prosecutors.

Rivlin, himself a right-winger who has been working to heal the divide in Israeli society between Jews and Arabs, stated with some plain truths. 

“We must ask ourselves seriously, what is the point of the proposed law?” he said. “Does this bill not in fact play into the hands of those who seek to slander us? Into the very hands of those who … see contradiction between our being a free people in our land, and the freedoms of the non-Jewish communities amongst us?”

Instead, Rivlin said, “Judaism and democracy, democracy and Judaism, as one utterance … is the beating heart of the State of Israel. A state established on two solid foundations; nationhood on the one hand and democracy on the other. The removal of one will bring the whole building down.”

Responding to the criticism, Netanyahu said he did not know a more vibrant, democratic country, “certainly not in our region.” Well, duh!

As one who is deeply committed and connected to Israel, I understand the challenges it has faced since its establishment in balancing different interpretations of the state’s vision as a democratic and Jewish state. I strongly believe that Israel’s democratic nature is at the core of its success in dealing with such challenges through open dialogue between different sectors. I also believe that a two-state solution is ultimately the only way to safeguard Israel as a Jewish and democratic state.

It is not clear to me why Israel needs this legislation at all. Its Declaration of Independence states that the State of Israel “will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.” 

Why go beyond this? Is there any doubt about Israel’s character as a predominantly but not exclusively Jewish country? Does anyone question its dominant language, religion or culture? Its flag is the Magen David. Its national anthem is “HaTikvah,” a song expressing exclusively Jewish aspirations referring to the “Jewish soul turning eastward.” 

Has any of us ever wondered how those belonging to the 20 percent of Israel’s population who are not Jewish must feel having to hear that song played on every official occasion? 

How, for example, does Abbas Suan, an Arab-Israeli soccer star who played many times for the national team, feel?  And how did he feel a few years ago, when fans of Beitar Jerusalem, who are notorious for their racist chants, waved a giant banner that said, “Suan, you don’t represent us,” and shouted, “We hate all Arabs”?

The fact is we can’t take Israel’s democracy for granted. It remains vibrant, but its sinews are coming under increasing strain. One test of a democracy is its ability to tolerate minority views that may be at variance or even obnoxious to the majority, not to ban them or outlaw them. The majority must make political room for the minority. We must pray that Israelis step up to meet that challenge.

Alan Elsner is vice president of communications for J Street. Alan Elsner will be participating in a forum with Stand With Us at Temple Judea on January 13th for more information, click here

U.S. Jewish groups opposing Israel’s ‘Jewish state’ law worry about consequences

It’s not unusual to hear U.S. Jewish groups speaking out against laws that discriminate and framing their protests as protecting Jewish interests.

What’s unusual is that the target this time is the Israeli government and the proposed law emphasizes Jewish rights.

At issue is Israel’s nation-state bill, which if passed by the Knesset would enshrine Israel’s status as a Jewish state into law. Proponents say the bill would reinforce the Jewish character of Israel, but opponents charge that it would jeopardize the state’s democratic character and undermine Israel’s Arab minority.

Most major American Jewish groups weighing in on the debate are against it.

“It is troubling that some have sought to use the political process to promote an extreme agenda which could be viewed as an attempt to subsume Israel’s democratic character in favor of its Jewish one,” the Anti-Defamation League, the first group to speak out against the bill, said in a statement Nov. 24, a day after the Israeli Cabinet approved a version of the bill.

American Jewish groups against the measure outline two broad reasons for their opposition: the fear that it is ammunition for anti-Israel and anti-Jewish forces already feeding off the aftermath of Israel’s war with Hamas in the Gaza Strip and recent tensions in Jerusalem; and the fear that Israel is drifting from its democratic character, particularly in laws and practices that target minorities and women.

“The proposed Jewish state bill is ill-conceived and ill-timed,” Kenneth Bandler, the American Jewish Committee’s spokesman, told JTA in an email.

Abraham Foxman, the ADL’s national director, said the bill provides cover for Israel’s enemies.

“It’s an unnecessary debate, it has spillover and provides fodder,” he said. “What comes out of this? Nothing.”

Other major groups opposing or expressing reservations about the proposed law include the Reform and Conservative movements, the National Council of Jewish Women and the Jewish Council for Public Affairs, the umbrella body for Jewish public policy groups.

The Zionist Organization of America is among the few U.S. Jewish groups that have taken a stand in favor of the nation-state bill.

“Non-Jewish citizens live and are welcome in Israel, but the Israeli state, its institutions, laws, flag, and anthem reflect the history and aspirations of the people who founded it with their labor, resources and blood,” ZOA President Morton Klein said in a statement.

The U.S. State Department has said that it expects “final legislation to continue Israel’s commitment to democratic principles.”

In Israel, the opposition to the bill is led by President Reuven Rivlin. Prime Minister Benjamin Netanyahu backs the law – although he has yet to settle on final language – and has pledged to bring it to the Knesset for a vote as early as next week.

As a “basic law,” the law would have constitutional heft. Its backers say giving Israel’s Jewishness a constitutional underpinning is increasingly necessary given attempts to delegitimize the state.

“The State of Israel is the national state of the Jewish people,” Netanyahu said Nov. 23. “It has equal individual rights for every citizen and we insist on this. But only the Jewish people have national rights: a flag, anthem, the right of every Jew to immigrate to the country and other national symbols. These are granted only to our people, in its one and only state.”

Such talk induces uneasiness in American Jews who over decades have been invested in an Israel in which Jewishness and democracy have successfully melded in equal parts, Rabbi Rick Jacobs, the president of the Union for Reform Judaism, told JTA.

“Let us strengthen Israel’s democratic foundation,” Jacobs said, noting in an interview a recent proliferation of attacks on minorities in Israel as well as statements from Israeli politicians elevating the Jewish character of the state over its democratic values. “If anything needs strengthening, that’s what needs strengthening,” he said, referring to democratic values.

U.S. Jewish groups generally confine their criticism of Israel’s government to issues of status that affect Israel’s Jewish citizens, like the treatment of the non-Orthodox religious streams and discrimination against women. They avoid criticism – at least in public – that would feed into attempts by Israel’s enemies to depict it as racist and exclusionary.

This bill is an exception, Rabbi Julie Schonfeld, the executive vice president of the Conservative movement’s Rabbinical Assembly, said in an interview, because it has broader implications than a single decision involving the Palestinians that might draw controversy.

“This law speaks fundamentally to the democratic nature of Israel,” she said.

Schonfeld said Jewish-American sensitivities already were sharpened because of a series of legislative initiatives in Israel that would limit the rights of the non-Orthodox and practices that discriminate against women, like segregation on some buses. Particularly galling, she said, was a law that a ministerial committee maintained this week that criminalizes marriage by non-Orthodox rabbis.

“These laws that violate religious freedom are building blocks to anti-democratic legislation,” Schonfeld said.

The nation-state law also has drawn criticism from liberal Jewish groups that in the past have not hesitated to target what they see as discriminatory Israeli policies. Among the groups are Americans for Peace Now, the New Israel Fund and J Street.

Rachel Lerner, a J Street vice president, said American Jews have internalized democracy and equal rights for all as Jewish values in part because of the protections they have been afforded in the United States.

“We’ve had equal rights because this country is so accommodating, so there’s a lot of sensitivity toward that,” Lerner said.

Several major groups, including the Orthodox Union and the Jewish Federations of North America, have yet to weigh in. A source close to Jewish Federations said the umbrella body wants to see a final draft of the bill before pronouncing.

Netanyahu reportedly is seeking ways to include in the bill an emphasis on Israel’s democratic nature and its commitment to equal rights.

The JCPA in its statement called for postponing Knesset consideration of the bill and urged that the final draft make clear that Israel remains committed to equal rights.

“If they’re going to do this bill, it should be incredibly clear that there is no intention to diminish the rights of citizens who are not Jewish,” JCPA’s president, Rabbi Steve Gutow, told JTA.

Schonfeld said the law is the wrong solution to whatever anxieties are driving its proponents.

“This is a time of great anticipatory anxiety among Jews, and it calls for signal courage and not to give in to fears,” Schonfeld said. “This seems to be legislation motivated by fear and not by courage.”


Making Israel’s Jewish status the law: Does it matter?

On Sunday, Israel’s Cabinet is set to advance a controversial bill that if passed by the Knesset would enshrine into law Israel’s status as a Jewish state. The nation-state law, as it is being called, has support from much of Israel’s governing coalition but has faced opposition from Israeli legal scholars and leftist members of the Knesset.

With Arab-Jewish tensions running high in Israel, supporters of the bill say it will reinforce Israel’s Jewish character. Opponents fear it will stoke the flames of the conflict.

Here is what you need to know about the bill and its prospects:

What is the nation-state law?

The bill makes clear that Israel is the state of the Jews or, in the words of the bill, “defines the State of Israel’s identity as the nation-state of the Jewish people.” Among other things, it means that Jewish law should inspire its legal system and that Israel’s national holidays will be the Jewish holidays plus Independence and Memorial Day. The bill affirms that the country’s national anthem is “Hatikvah” and that its flag is the blue-and-white star-and-stripes. For good measure, the bill also affirms the Law of Return, which gives automatic citizenship to any Jew who wants it.

Some of the bill’s sections already are law. But the nation-state law would become one of the so-called Basic Laws, which like a constitution guide Israel’s legal system and are more difficult than regular laws to repeal.

Two drafts of the nation-state law have been proposed recently by right-wing lawmakers. The one on the table now is a compromise formulated by Prime Minister Benjamin Netanyahu’s office. The earlier version also would have defined Hebrew as Israel’s sole national language, giving Arabic a secondary status, and affirmed the importance of settlement throughout Israel’s borders — a term that was not defined.

Everyone knows Israel is a Jewish state. Why is the nation-state law necessary?

Supporters say it’s because Israel’s Jewishness has never really been made into law.

Judaism is mentioned throughout the country’s laws and religious authorities control some ceremonies, like marriage. But the 11 existing Basic Laws deal mostly with state institutions like the Knesset, the courts or the presidency, and Basic Law: Human Dignity and Liberty defines Israel’s democratic character. The nation-state law, proponents say, will place Jewish values and democratic values on equal footing.

“Although there is wide agreement in the Israeli public regarding the State of Israel’s definition as a Jewish state, the characteristics of Israel as the nation-state of the Jewish people were never anchored in the state’s foundational laws,” Likud Knesset member Zeev Elkin wrote in the earlier version, which he composed.

Netanyahu has long demanded that the Palestinian leadership recognize Israel as a Jewish state, something it has refused to do. Elkin wrote that the law “is doubly important especially in times when some seek to negate the right of the Jewish people to a national home in its land.”

Why is the bill so controversial?

Opponents of the bill worry that it will prioritize Israel’s Jewish character over its democracy.

Israel’s declaration of independence defines it as a Jewish and democratic state, a dual mandate that has sometimes been a tough balancing act for the country. The opponents worry that the bill will further alienate Israel’s Arab minority, who make up about a fifth of the population, fomenting discord in Israel and giving ammunition to Israel’s detractors.

In particular, some Israeli legal scholars oppose sections of the bill that say legislation should be inspired by Jewish law and that courts should look to Jewish law in cases where civil law provides no clear answer.

“Israel is a nation-state whose vision has three essential ingredients: Jewishness, democracy and human rights,” Hebrew University law professor Ruth Gavison wrote in a government-commissioned report on the bill that was released this week. “The nation-state law is likely to upset the essential balance of safeguarding the entire vision.”

If the bill becomes law, what concrete changes would follow?

None, really.

The bill aims to set out general principles and safeguard existing legislation, so it doesn’t create any new laws. But because it would be a Basic Law, its principles would guide the rest of Israel’s legal system.

Amir Fuchs, the head of the Defending Democratic Values project at the Israel Democracy Institute think tank in Jerusalem, says the law will make it easier for discriminatory laws to pass Knesset and stand up in court.

“The goal here is to change the balance from where we have too much democracy, too much liberty and not enough Judaism,” he said, explaining supporters’ views. “If you want to pass a law that discriminates against Arabs, now you can claim that the [Arab-Israeli] demographic threat [to a Jewish majority] justifies the law.”

How has the government addressed the concerns? Will the bill pass?

Supporters of the bill say opponents are mischaracterizing it. They note that the measure explicitly refers to Israel’s democratic character and affirms “the personal rights of all its citizens according to law.”

Center-left members of Netanyahu’s coalition opposed previous versions of the bill, such as Elkin’s. But Netanyahu’s draft is aimed at compromise. Unlike the Elkin version, which Justice Minister Tzipi Livni came out against this week, the Netanyahu version has stronger language protecting democracy, and removes the portions on Jewish settlement and the primacy of Hebrew.

While the wording will probably change slightly before the bill comes to a vote on Sunday, Netanyahu aims to garner broad support for it in his coalition.