Chutzpah: an avoidance strategy

From the archive (legacy material)

Asmi Bishara | Al-Ahram Weekly | 25-31 December 2003

From the soap opera trial of O J Simpson to Herzliya: Azmi Bishara traces the death of the liberal Jew
When a liberal Harvard University law professor defended Orenthal James Simpson, commonly known as “OJ”, on the grounds of “reasonable doubt,” it must have reminded many of the line from Shakespeare’s Henry VI (Part 2, IV, ii): “The first thing we do, let’s kill all the lawyers.”
This liberal law professor built his reputation on defending citizens against all forms of discrimination, for upholding the freedoms of the individual, for safeguarding a defendant’s right to “reasonable doubt” when on trial for murder. He is the intellectual who strives to be unpredictable by going against the consensus of his social milieu, which condemns the simultaneously celebrated and hated wealthy star, the professor who defends the person who people like to hate, as sometimes happens with celebrities. He is the lawyer who likes to play the enfant terrible, bent on provoking his peers in a battle that appears to revolve around the defendant who is innocent until proven guilty and whom he proves cannot be found guilty even if he cannot prove his innocence, thereby infuriating his peers even more while at the same time increasing their admiration of his courtroom finesse. And, from the real blood of the victim with a well-known name, family and friends who became the authors of memoirs and talk show guests, and from the human flesh beneath the victim’s fingernails, liberals and conservatives — whether they loved or hated the defendant — squeezed a cheap melodrama on the antics of the rich, on their ethics of betrayal and the bloodiness of their ethics, and on a culture the values of which are as volatile as deodorant spray.
In this soap opera the Harvard professor played the high- priced legal eagle who had honed his skill at treading the rough and treacherous paths of the law — and around the law — in civil rights cases and who heeds neither rumour nor prevailing opinion as he forges ahead in his advocacy of the rights of the accused however unpopular his mission. From the civil rights dictum, “he is innocent until proven guilty even if black”, the lawyer deftly segues to the “he is innocent even if he’s rich and famous”. Thus he turns the arguments, rhetoric and morals of civil rights to the promotion of amorality, and places the rejection of prejudice, the scorn for hearsay and strict adherence to the codes of civil rights advocacy at the service of the manufacture of prejudice, stereotypes, clichés, spectacle, and wealth buying innocence by purchasing “reasonable doubt”.
It would have been nice to forget this rather ordinary chapter in the history of American entertainment, and to forget those whom its sensationalism casts into the limelight, because oblivion is a blessing and memory a curse. Unfortunately, however, the illustrious professor doesn’t give up. As a “public intellectual” he keeps on producing one book after another, one called Chutzpah on the extraordinary relationship between Israel and American Jews, another on the Simpson trial and another on the secret of the success of terrorism. Then the newspapers slap us to attention with a report of a lecture of his in Herzliya — the same Herzliya in which Sharon, Netanyahu and the chief of Mossad strutted and swaggered. What a coincidence, which is always so much more thrilling than a thousand appointments, as we say. And what a pleasure it was to read, several years after that courtroom farce, the star lawyer’s advice to Israel on how to circumvent international law and its weakness for human rights.
So he too got to the Herzliya conference, as though Israel needs someone to advise it on how to flout international law with impunity. Naturally, his presence there occasioned a look back at his activity, which has taken a provocative course since 11 September. In interviews with CNN on 3 May, 2002 and with CBS on 20 September, 2002 he told television audiences how it was possible to justify the use of torture in the war against terrorism. But, as only befits a liberal university professor, he made it clear that the use of torture must be carefully monitored and controlled, used in very isolated cases and approved at the highest possible level of authority, and then only if there is sufficient cause to believe that the prisoner has knowledge of a terrorist operation and that torturing him would bring to light the information necessary to save human lives. In short, he thinks torture should be legalised. The question has been dealt with before in Israeli judicial and legal rights literature beneath the heading: permitting the use of “a reasonable amount of physical pressure” in the event of looming danger of terrorist attack, a danger the literature likens to a “ticking bomb.”
Whereas human rights organisations were fearful that an attempt to legalise torture would constitute a dangerous precedent, the Harvard law professor argued in interviews that legitimising and monitoring the use of torture was preferable to practicing torture in secret. Here, apparently, we have chutzpah as integrity, as opposed to hypocrisy and beating around the bush.
Not only was he at the Herzliya conference, but he also attended a meeting of the law and constitution committee in the Knesset, where he proposed that Israel should deal with international law “creatively” (Haaretz 19 December 2003) by holding the “terrorist” responsible for forcing Israel to abuse civilians. Evidently, “terrorists” are meant to set up camp in Gaza like an ordinary army so they can be picked off by Israeli forces, for otherwise woe to the civilians among whom the terrorists choose to live. Here we have the logic of the new American liberal. He knows perfectly well that the people he calls terrorists are, in fact, civilians, ordinary people who live in their own homes under the occupation just like other people, and that the so-called terrorist infrastructure that Sharon prattles on about as though there were organised training camps is pure propaganda, because in the occupied areas overlooked by Israeli control towers no camps of any sort can exist. He is perfectly aware that the infrastructure of terrorism is the occupation itself. However, the professor has a position to stick to and that position is Israel’s. He is a chauvinist of nationalist stripe, no more and no less, so he must take sides and to hell with liberal values.
Between Harvard and O.J. the American liberal is fanatic about the American way of life and about his Jewish identity, at the heart of which resides Israel in the new definition of this identity in the US, so no one can dare accuse him of being a Jewish nationalist. He is not being naïve when he theorizes about life under occupation. Not that life under occupation concerns him. What matters to him is how Israel handles itself and how it appears “among nations”.
In his lecture in Herzliya Alan Dershowitz said: “The root cause of terrorism is its success and its support. It is a case of advantaged people using disadvantaged people as cannon fodder. As we all know, Palestinian terror has been supported by the UN, by the Vatican and several other institutions.”
The liberal professor has summarily ruled out occupation and degradation as a cause, a motive and a background. But then to know what life under occupation is like one does not have to live in Gaza or to have experienced first hand how a densely populated land was transformed into a camp surrounded by control towers; how childhood, growing up and life have lost their meaning; how people have lost their humanity and not just their human rights; how the environment, and not just the quality of the environment, has been denuded of all aesthetic values so that colours are now a uniform gray and a sense of suffocation the norm. No, one does not have to live there to realise what its like; all you need is a bit of chutzpah.
Dershowitz resumes: “We have international sanctions on nations such as Cuba and Iraq. Everybody in a nation should take responsibility for the actions of its leaders. To be part of a group is to be accountable…. Pre-emption is the other primary method of reducing the scourge of terrorism. Pre-emption, although Israel has praciticed it, generally falls outside the rule of law. Terrorists put democracies in a tragic dilemma by hiding among civilians.”
Barely pausing for breath in this amazing lecture, Dershowitz continues: “We have a joint project between Israel and the US, which lawyers must lead. Our project is to propose new rules of international law. Israelis are obliged to follow the rules of law in the democracy called Israel, as I am within the US. Your moral obligation to comply with international law is voluntary. You are not represented in the making or implementing of those laws. International law lives or dies by its credibility, not by the democracy by which it has been constructed. I am suggesting the change of the rule of law. Democracy should not have to justify its actions and show how the rule of human rights has become a weapon in promoting human wrongs… You are the lab for that process. You are contributing greatly. Do not allow the world to bully you into believing that you are the human rights violators…”
Israelis listened to this in rapture. They knew all these things already and they put them into practice. But they were ecstatic to hear it for the first time from a distinguished university professor, for now they can act on the conviction that their ideas and practices graduated from the University of Harvard. Israelis are fond of opening their self-justifying arguments with such assertions as “even in the US they have administrative detention”, or “even in a great democracy like the US they use torture”. It is as though all Israel needed to encourage it in its flouting of international law and the international will was a Harvard professor, courtroom king and champion verbal gladiator to tell it to become the laboratory for new international laws which will free the democracies’ hands in the war against terrorism. Now Israel’s codes of behaviour can become international law. Have you ever seen anyone more modest? It is as though his pride and ardour are fired by the thought that US and Israeli forces are waiting for his go ahead before committing their crimes, as though army and security officers carry his collected lectures around with them like an instruction pamphlet they open in order to put their finger on the necessary provision of international law to trample underfoot. The tragedy is that they are already committing the crimes and all our distinguished professor is doing is lending them moral justification and appeasing consciences with the liberal logic of an ex-civil libertarian.
Naturally, the law professor realises that the legal gymnastics of rendering international law something to abide by voluntarily by democratic countries must inevitably apply to non-democratic countries as well, as long as international law is not universally sovereign. But, in the case of those countries that do not please the venerable professor force can always be used to deter or punish them, not for having broken the law but for being “against us”. Clearly, selectivity is the operative word in the business of abiding by, or making others abide by, international law. It all depends on who has the power to be selective when, in the final analysis, the rule of international law has been replaced by the law of the jungle.
Occupation, want, misery, destitution, degradation — none of these justify the violence that goes by the name of terrorism in this case. Let us grant this, for the sake of argument, just to see where Dershowitz’s logic leads us. Democracy in the US might mean that an athletic star and wealthy socialite who everyone, including his lawyer, knows is guilty of murder can get acquitted, not on the basis of lack of evidence or proof of innocence, but on the grounds of “reasonable doubt”. Outside the US, however, bombing the poor under occupation is permissible, even if they are innocent, because they have a “guilty” man in their midst. Under this scheme of things, occupation as terrorism, as the daily repression of a civilian populace, is not only skirted over, it virtually becomes a right, as though occupation is a reaction against terrorism and not the reverse. Also, as long as the colonial power is democratic it has the right to make international law and, more, to define international law by its own behaviour.
In 1991 Dershowitz published a book called Chutzpah. The term, which in Hebrew means audacity, has in Yiddish acquired an almost endearing quality. A person who has chutzpah is confident, daring, able to lie and look you in the eye. In The joys of Yiddish (1968), Leo Rosten defines the person endowed with chutzpah — the “chuzpanik” — as “the man who shouts for help while beating you up.” Zionism defines itself as the refutation of the exile, a state which includes refuting the manners and mores of the son of the ghetto, or the Jew of the Diaspora, whom Zionist theoreticians considered weak and too eager to please “others”. Morally, Zionism stands for self-affirmation, self-reliance and the display of strength, and for freeing oneself from the minority complex with its attendant trait of excessive courteousness. And the opposite of the aversion to politeness is pride in being rude. There was a time when Jewish American liberals were an integral part of the American civil rights movement. However, a large segment of liberal Jews have “Zionized” in the sense that they have negated their exile through the move from minority status to establishment, and because of their irrational emotional attachment to Israel, which they support right or wrong, they now find themselves in league with neoconservative forces in the US. The result is that they are liberal in personal status issues and conservative in foreign affairs, including those affecting war and peace. Hence the shift from “reasonable doubt” to the law of the jungle in the areas within the influence of the empire, which the cream of these liberals has the necessary audacity to defend.