On Boys Will Be Boys and So On

Jonathan Kay/National Post/Jun 1, 2011

Earlier this month, the Toronto Star published a story called “Footloose and gender-free,” which sympathetically profiled a young couple trying to raise a child in a completely gender-neutral environment — so gender-neutral that the mother and father won’t even tell people outside the family whether Storm, their four-month-old child, is a boy or girl. “If you really want to get to know someone, you don’t ask what’s between their legs,” says David Stocker, the child’s father.

I wish this well-meaning fellow could have attended my 7-year-old daughter’s birthday party at a pottery and painting studio last week. There, he would have seen 10 little girls, all of them sitting quietly at a table, studiously creating beautiful little masterpieces. The boys, meanwhile, took about 30 seconds to slop some paint onto a ceramic dinosaur or car — and then spent the next hour chasing each other around the facility, occasionally hauling one another to the ground so they could act out professional wrestling moves they’d seen on Youtube.

Not that the boys weren’t “creative.” One of them had been given a cheap video camera from his parents, and spent 10 minutes taking footage of the (unoccupied) toilet in the studio bathroom. This pint-sized Truffaut had a cheering section: The boys assembled around him found the documentary project to be the most hilarious thing in the world, and some became literally incontinent with laughter (ironic, no?) as they took turns passing the camcorder from hand to hand watching and re-watching the footage. Occasionally, the girls would look over at the boys — much as well-dressed diners in a fancy restaurant might gaze out a window to watch hobos fighting over a liquor bottle in an alley — and then sighed and returned to their artistic labours.

As any (normal) parent can attest, such vignettes are entirely typical of parties featuring young boys and girls — who generally are so different in their behavior as almost to compose different species. Stocker is entirely wrong: There is no other single datum of information about a young child that will tell you more about his or her temperament, interests, energy level and maturity level than his or her sex.

Nor does it hold water to say that such differences are “socially constructed.” In my own way, I was even more socially progressive than the Footloose Family — dragging my two daughters out on to tennis and squash courts when they were just three years old, and aggressively discouraging them from “princess parties” and the like. My motives were purely selfish: I wanted my daughters to become racquet addicts, like me, so I could combine my sporting and family loves in the same weekend activities. The project was a total failure: On court, Alexa and Daniela would discard their racquets, and squat down over the balls, pretending they were “mama chickens, laying eggs.” Soccer was also a disaster: Alexa, in particular, just wandered around the field, picking clover and occasionally talking to other girls, most of whom looked equally bored. The prospect of actually touching the ball terrified her.

Are all boys the same? Are all girls? No. But the vast majority of each have enough in common — love of sports, roughhousing, cars, planes and (apparently) toilets, in the case of boys; a fixation on grooming, babies, and the rites and rankings of friendship, in the case of girls — that each sex becomes a very real club drawing in its membership at the age of toddlerdom, by sheer force of commonality. Gender is the second club we join in life (the first being our family). And once joined, membership shapes us in powerful ways. Parents have no control over this process, unless they treat their children like hermits — and even then, their influence will be marginal.

The most reasonable gloss I can put on the Star’s “Footloose Family” is that they recognize that some boys and girls are destined never to feel accepted in those clubs — because they are gay or transsexual. Perhaps Stocker and his wife see this in the future of their eldest boy, five-year-old Jazz, a long-haired “gender explorer” who wears dresses and pink feather boas with his parents’ encouragement. And so the family wants to strike a pre-emptive blow against the very idea of gender categories. In an email the couple sent out to friends and family, they declared: “We’ve decided not to share Storm’s sex for now — a tribute to freedom and choice in place of limitation, a stand up to what the world could become in Storm’s lifetime (a more progressive place?).”

Beautiful words, I guess. But to my mind, this is like dealing with an overweight kid by telling everyone that we live in a world without gravity. Or telling a very tall child that we live in a world without doorways. Or telling an albino child we live in a world without sun.

It is correct and admirable to grant a child unconditional love even if he or she has trouble fitting into the two clubs — straight boys and straight girls — that arithmetically dominate all societies. But it is a species of lie — and a damaging one, at that — to pretend that those clubs are illusory. They do exist, as surely as I threw two very different parties for my daughter’s classmates last week; and thanks to biology, they begin forming before children can even process full sentences — let alone understand indoctrination about “gender exploration.”

Indeed, the very fact that “gender” is a word that falls so easily from the lips of the Footloose parents tells us a lot about their worldview. Sex is a biological reality and every human being is born with one. “Gender” is a recent theory-based locution and always has to do with a person’s Sexuality. Children know their sex but cannot possibly consider their gender because they are too young to appreciate what their sexuality is. The only way to explain gender to a child is to explain sexual desire, which no child wishes to know about. So the fact that Jazz writes a little family newspaper called The Gender Report tells you that he hears that word a lot, and that he is being fed a daily dose of theory he is too young to appreciate and that is clearly confusing him.

If I could recommend a book to Stocker and his “Footloose” wife, it would be David Sedaris’ Me Talk Pretty One Day, in which there appears a wonderful story about what it was like for Sedaris to be a gay fifth-grade student at a North Carolina school.

Describing his efforts to hammer out his lisp in the speech therapy lab, Sedaris remembers life thusly: “None of the therapy students were girls. They were all boys like me who kept movie star scrapbooks and made their own curtains. ‘You don’t want to be doing that,’ the men in our families would say. ‘That’s a girl thing.’ Baking scones and cupcakes for the school janitors, watching Guiding Light with our mothers, collecting rose petals for use in a fragrant potpourri: anything worth doing turned out to be a girl thing. In order to enjoy ourselves, we learned to be duplicitous.

Our stacks of Cosmopolitan were topped with an unread issue of Boy’s Life or Sports Illustrated, and our decoupage projects were concealed beneath the sporting equipment.”

Sedaris has some painful memories of his childhood — alongside many funny ones. But his is not the usual cri de coeur from someone who considers himself to have been a victim of torment and discrimination. He is an extraordinarily self-aware writer who recognizes that there are very real and permanent differences between the school’s lispers (the “future homosexuals of America,” he calls them — a line no straight man would ever be allowed to write) and the majority of the school’s males, who worship fast cars and professional football; and that these differences cannot be erased or bridged merely with good intentions.

In short, he recognizes that there is a boy’s club, and that he isn’t in it — not in its majority caucus anyway. Better to seize on that sobering realization than wallow in the myth that the world can be brought into one giant gender-free mélange if we all send our children out in feather boas.

In fact, if Storm’s parents are looking for a true “gender explorer,” they might find an archetype in Sedaris. His insights about men and women, gay and straight, come not from making a Lady Gaga-esque spectacle of his own sexuality, but by studying other people carefully, and writing down the very different things (Cosmo versus Sports Illustrated) that make them tick. The straight men in his stories — including men in his own family — are sketched in the same wry, affectionate way as the gay characters: as prisoners, not creators, of their own sexual identities.

I met Sedaris once, and was impressed by how humble and understated he is. In his world, as in my own, there is plenty of room for feather boas and gender-bending. But the proper place for them is the cabaret, the night club, and the larger world of adults; not a home full of young, confused children.

Me:

Kay, I've come to be persuaded, confuses the idea of gender by defining it as sexual orientation-"Sexuality."

...Children know their sex but cannot possibly consider their gender because they are too young to appreciate what their sexuality is. The only way to explain gender to a child is to explain sexual desire, which no child wishes to know about...

Gender, in contradiction of Kay, is the appreciation of what one is as between conventional categories of male and female, regardless of biology. Therefore, one can be a masculine homosexual, a masculine lesbian, an effeminate heterosexual man, a masculine heterosexual woman. "Trans- gendered" in these terms means one's attitude and conduct concerning one's own masculinity or femininity in contrast to those conventional categories.

If we revisit Kay's piece in light of this better understanding of gender, then we see that a lot of analysis is flawed, falling apart and at places in tension with itself.

For example, Kay is right--though I reject the trope--that there is a straight boys’ club and a straight girls’ club, "straight" importing his notion of gender as sexual orientation, when clearly gender does not mean that. But then he says that what sets kids in those clubs occurs at a very young age is sex, gender coming along later as the "Second Club." But what is really happening, on a proper understanding of gender is that it is formatively taking shape from the youngest of ages as the complicated result of biology, one's nature and conventionality affecting each other.

That so understood, Kay is confused to say:

...and thanks to biology, they begin forming before children can even process full sentences — let alone understand indoctrination about “gender exploration.”

Rather, thanks to biology, gender and gender exploration, properly understood, are forming at a very young age, quite distinct from sexual orientation, right along with self consciousness.

Kay terribly, therefore, misconceives what the Footlose parents are doing in characterizing it as "indoctrination about gender exploration." I do not know them but I construe what they are doing as exactly allowing gender exploration in a way that is antithetical to indoctrination. For example, they let their eldest child's gender form such that it moves to his own inclinations.

The issue is not boas or the precise working out of how they encourage their child to let his inclinations come to the fore. The issue is that they are open and supporting in letting that happen. Hence, indoctrination--to inculcate with a specific partisan or biased belief or point--is the last thing these parents are doing.

Kay wrongly surmises--starting from his misconceived premise of the meaning of gender-- what they are doing:

...The most reasonable gloss I can put on the Star’s “Footloose Family” is that they recognize that some boys and girls are destined never to feel accepted in those clubs — because they are gay or transsexual...
.... And so the family wants to strike a pre-emptive blow against the very idea of gender categories...

These parents are not trying to wipe out the idea of gender categories; they, rather, are letting gender work itself out in their children free from the "straight"-jacketing Kay prefers and implicitly argues for.

For the logic of his position leads to me to the inference that Kay thinks parents, if they had, say, a boy who by his nature and inclinations reacted against his biology, should tend to suppress that in him. The inference is that they would blanche against their kid's desire at a young age to live out his evolving gender and express his inclinations.

The inference is that they should "straight"-jacket him.

Coptic Christian Egyptian Blues

Jonathan Tobin/Contentions/05.31.2011

As the New York Times report about the fears of Coptic Christians makes clear today, the increasing influence of Islamists in Egypt in the wake of the collapse of the Mubarak regime calls into question the security of non-Muslim minorities. Some will simply ascribe the tragedy that seems to be unfolding to the perils of increasing democracy in societies where there is no tradition of either genuine religious freedom or the rule of law. That may be true, but Egypt’s problem runs deeper than merely blowback from the Arab Spring.

The role of the ahl al-dhimmah—religious minorities protected in principle under Muslim law but still subjected to discrimination and often mistreatment—is the kind of topic that those who wish to promote good relations with the Muslim world often treat as out of bounds for civil discussion. The mere utterance of the word dhimmi is enough to risk an unfair accusation of anti-Muslim bigotry. Yet it goes to the heart not only of Egypt’s problems but those of the Middle East in general.

Although they make up approximately 10 percent of Egypt’s population, Coptic Christians understand that the sensibilities of the Muslim majority are such that any assertion of equal rights or self-defense against discrimination is treated as a blow against Islam that will not be accepted. Thus, they must hope that whatever government emerges from the post-Mubarak transition will be able to protect them against the whims of an intolerant majority.

At the same time, it must also be understood that much of the anger against Israel in the region has little to do with disputes about borders as it does with revulsion against a Jewish majority state in which Muslims are the minority. As it happens, Israeli Arabs have, as has often been pointed out, more democratic rights (including the right to vote and hold office, seek legal redress in independent courts, and speak out via a free press) than those living in any Muslim country.

But the idea that the Jews—who were reduced to dhimmitude in the Muslim world for 13 centuries—now rule over even a tiny portion of that part of the world is simply unthinkable to many Muslims.

Concern about the safety of the millions of Christians in the Egypt that will emerge in the coming months needs to be an integral element to U.S. policy toward that new government. But those who care about Middle East must also understand that the same dynamic that drives discrimination and violence against the Copts is just another aspect of the same ideology that refuses to accept Israel’s legitimacy and keeps alive the war against the Jewish state 63 years after its rebirth.

D'Alimonte v. Porretta, 2011 ONCA 307 (CanLII)

http://tiny.cc/qy264

Can it be argued that this case stands for--can be expanded to stand for-- the proposition that fraudulent non disclosure of material facts contradicting material allegations in a Statement of Claim may ground a summary dismisssal of action by reason of that non disclosure?

Paul Berman on DSK

The Dominique Strauss-Kahn Shipwreck

What will happen after American justice and French conspiracy theories collide?

Paul Berman/May 26, 2011/TNR

The Dominique Strauss-Kahn case is headed toward a dismally predictable shipwreck, and I wonder what anyone is planning to do about this. The punctilious fair-mindedness of the trial may well turn out to be obvious to everyone who grants the possibility of such thing. The world nonetheless contains entire populations whose assumptions about American justice, despite years of Law & Order, tend to exclude the possibility, and we ought to ask ourselves how those people, the skeptics, are likely to respond to the coming series of events.

Those people, the skeptics, are going to listen to Strauss-Kahn parry his prosecutors, and they are going to discover that Strauss-Kahn is eloquent. They will discover that his lawyers command abilities of their own, which will turn out to be no less devastating to the prosecution than were, say, O.J. Simpson’s lawyers. The skeptical populations will cock an ear to Strauss-Kahn’s champions in the French press. The champions will turn out to be some of the most talented writers alive.

The talented writers will argue that American justice is brutal and peremptory (and, to be sure, this argument has already influenced the trial, and the French journalist who has accused Strauss-Kahn of attacking her in 2002 has announced, through her lawyer, that she will not testify in the New York trial because “the presumption of innocence does not exist in the United States”).

The writers will argue that American ideas about sex are too primitive to be taken seriously (and, to be sure, the American press is already full of long-winded parallels between actual violence, or what is said to be, at the Sofitel Hotel, and the former governor of California’s history of deceiving his wife).

The skeptical populations will take note of the New York tabloids and their headlines, which may well be intended semi-humorously by the editors; but one man’s witticism is another man’s exercise in moronic xenophobia. And the skeptical populations will conclude that, in the Strauss-Kahn case, the victim and hero is Strauss-Kahn himself—the defiant victim of the American lynch mentality, of America’s sexual primitivism, and of the gutter press. This will lead to a political thought.

It is no small thing to seize the most electable person from one of America’s principal rivals around the world (as France sometimes likes to present itself) and lock him up. To arrest the dictator of Panama and throw him in a Florida jail, to scoop up Saddam Hussein’s pistol and award it to George W. Bush as a kind of shrunken-head cannibal trophy, to bomb places where Muammar Qaddafi is thought to be and kill his son and grandchildren—that is one thing. But what if there is a pattern? The sovereignty of Pakistan… And if France is thought to have fallen within the pattern?

The French left has been exiled from the presidential Elysée Palace since 1995, which suggests that, in a democracy whose bona fides, like those of any democracy, depend on political rotation, the time has come for Nicolas Sarkozy to lose. And he did seem headed for defeat, especially if Strauss-Kahn were the Socialist candidate. Here is something to consider.

In America, not even the historians remember that French anti-Americanism got started in the 1830s as a result of a decision by the Andrew Jackson administration to insist on getting reimbursed by the French for the many American ships that France had seized during the time of Napoleon.

The Jackson administration was entirely justified, but not in the eyes of the French, and the resentments lingered long enough to become a cultural tradition. Even Lamartine, the poet-politician, who was pro-American, turned anti-American on this issue.

So now, America will lock up the Socialist candidate, and the Socialists may be go down to defeat in 2012, and, regardless of the American justification, how would you yourself respond, if you were an ordinary Socialist voter and had spent the last 17 years stewing over the triumphs of the right?

And now that I have uttered the word “Socialist,” I wonder how the Greeks are going to respond if, in the post-DSK era, the International Monetary Fund, no longer led by a kindly Socialist, ends up taking a harder line on the Greek economy? And the Portuguese?

I don’t mean to suggest that, in France or Greece or anywhere else, no one is capable of comprehending that even barbarous America has laws, and chamber maids, rights; and not everyone is eager to rally behind the French political elite. Still, it is worth recalling the success of September 11 conspiracy theories in France.

A preposterous credulity about the American willingness to murder thousands of Americans proved to be amazingly widespread, for a while. What will be so hard to imagine, then, about a far more modest conspiracy directed against a single individual, who will not even be put to death, but, if convicted, will merely be incarcerated, either for a long time (indicating the depth of American cruelty) or a short time (indicating a plot within the plot)?

If I may propose a conspiratorial speculation of my own, I wonder how many publishers all over the world, the desperate upstart hopefuls, are already searching for conspiracy-theorists to produce their journalistic tomes on the American arrest and trial of Europe’s most powerful Socialist by the henchmen of a sinister American cop named Raymond Kelly, chief of the New York Police Department and agent of capitalism.

And if the man turns out to be innocent? The damage, in that case, will end up greater yet, though maybe not so long-lasting, as when the U.S. Air Force bombed the Chinese embassy in Belgrade during the Kosovo War. (We apologized.) But assuming the general accuracy of what has already been reported, Strauss-Kahn’s own ardor for defending himself will only succeed in compounding the original crime with a political crime.

I suppose there is no point in asking him to interrogate his conscience, any more than there is in asking the editors of the New York tabloids to rethink their headlines. Maybe there might be a point in asking Strauss-Kahn’s champions in the French press and among the politicians to reflect on what they themselves are doing. The more he is defended, the thicker and chillier will be the trans-Atlantic fogs, in the future. Dear champions of DSK, réflichissez-vous! But no one is going to reflect.

Anyway, a bit more caution on the part of his loyalists would scarcely help, at this point. The ocean-liner of American justice and the ice floes of French conspiracy theories are already bobbing in one another’s direction, and nothing is to be done about it, and, oh dear, has anyone figured out what to do next, post-collision?

Me:

I’m with the estimable willjames77 on this one but I'm less forgiving him than him on this short piece of silliness and irrelevance.

I'd venture the thought that this piece is evident of a pervasive weakness in some of Berman's writing, much of which I mightily admire. That weakness is this: to overload the abstractions of consequence that he imagines ineluctably flowing from discrete events.

Leaving American crazed sensationalist culture to the side, this is an instance of the magnificence of the American justice system and its foundation in the rule of law. A man of immense power, rank, wealth, influence, status and privilege is accused by her of having raped an American hotel chamber maid. She follows due procedure, reports it to her employers; they call the police; the police investigate; they in conjunction with the relevant District Attorney exercise their discretion and arrest him and charge him. His case will be disposed one way or the other and his legal guilt, if any, will be determined or plea bargained as the case may be.

Nuts and fools, including French intellectuals like Bernard Henri Levy, will draw whatever nutty and foolish inferences they are prone to drawing. The world will go on quite the same regardless. And the above piece, like the foolish inferences, will comprise just so many words on a page, so much hot cyber air, so to speak, just so much talk, talk, talk that will all in short time passing be as dust in the wind.

Sophia:

Respectfully, Bernard Henri-Levy is not a fool.

He's brilliant - and - he had a point about le perp walk.

It's damning. So too, all too often, is the treatment of people who for whatever reason wind up in the slammer especially if they haven't even been formally charged yet let alone tried and found guilty.

A long time ago, my then-boyfriend got arrested for something or other involving his ancient VW bus. He looked like a hippie and mouthed off at the cop so he wound up in jail for the night. I went the next morning to court and he was paraded out with the other "guilty parties" wearing a bright orange jumpsuit with huge black letters spelling "JAIL" about 8 inches high, in case there was any doubt as to where he'd spent the previous night. He looked guilty as sin, lined up with all those other guys in their orange jumpsuits with the big black letters - JAIL - on the back and on the chest - whereas supposedly he wasn't, yet.

Anyway, he wasn't done with the legal system. He stood up and started the lecturing the judge about human rights, the presumption of innocence etc; I'll never forget the sight of ol' Ted standing there in his orange jump suit with JAIL on the front, and the American flag and the Colorado flag draped majestically, and the judge sitting there dumbfounded while Ted lectured him on the Constitution. Fortunately he had a sense of humor so I was able to make bail and get Ted out of there and back to the sunny streets of Boulder.

So it was scary and funny and embarrassing but - Ted was right and Henri-Levy was right about the fact that a person made to look guilty whether he is or not is also a victim and in this case, he's preemptively lost his career and also his future.

What if he is innocent?

Me:

Sophia:

This is what Levy actually says, in part, respectfully:

...This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.

I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact....

Here's part of my argument written to someone elsewhere for his foolishness and offensiveness:

...I understand your explanation of the investigatory system going to Levy’s concerns with pre trial notoriety irreparably damaging DSK’s reputation even if he’s acquitted or the charges withdrawn. And that is part of the some I think is a well taken concern. But I wonder this: you say: “…because there is nothing like a “juge d’instruction,” an impartial magistrate who weighs both the evidence ‘à charge” (accusatory) and the evidence “à décharge” (disculpatory) in order to get to the bottom of things before the trial even begins.”

I don’t know enough about these procedures to comment on them, but is it fair to say that that what the magistrate does before trial can be likened to Anglo-American police and prosecutorial investigation before arrest? Under the French system, I’d imagine, once the Magistrate “binds” the “accused” over for trial, the raft of publicity, if any, will follow. On this basis, what is the functional difference between the two systems, save for timing, as to publicity, such as it may be in any case, erupting, with all cultural allowances for what may pique national interest.

My questions tie into Levy’s first j’accuse: “This morning, I hold it against the American judge who, by delivering him to the crowd of photo hounds, pretended to take him for a subject of justice like any other.” I took strong exception to it when I first read it. And I’m not persuaded that seeing Levy’s comments as informed by French law abates my response. More, he’s incoherent here.

Unless I’m missing something particular in this case, no judge does what Levy holds against this judge. The accused has been investigated; discretion has been exercised to charge and arrest him; a grand jury—if the is a case that goes to one—will have brought in an indictment. The first judge simply arraigns the accused, takes his or her plea and then decides on bail. So how does this judge deliver DSK to the photo hounds? And now Levy becomes offensively ridiculous: what can he possibly mean when he says this judge pretends to take DSK to be a subject of justice like any other?

I reject the rationalization of this comment as either—your burdens—sensible or made sensible in light of French procedures. The subject judge is pretending as to nothing. DSK is precisely a subject of justice like any other. American law demands nothing less than that as I assume does French law. Levy’s complaint is that DSK is above such equal treatment by virtue of whom, goes the point, he exemplarily is.

Underlying this elitist tripe is Levy’s category error: he conflates American legal procedures with a crazed American sensationalist culture, the latter well worth decrying. So, in my view, respectfully, you haven’t met your burden of argument here.

Levy’s second j’accuse is also deeply problematic: “I am troubled by a system of justice modestly termed “accusatory,” meaning that anyone can come along and accuse another fellow of any crime—and it will be up to the accused to prove that the accusation is false and without basis in fact.”

Sorry, but again this is neither sensible nor made so by reference to French law. Levy is correct that anyone can accuse another of a crime. But then Levy falls of a logical and empirical cliff because he posits that that accusation leads to arrest, charges and indictment.

He omits the investigation that takes place after the accusation has been made. He omits the discretion that is exercised in the decision to proceed after that investigation. He omits that the preponderant majority of those indicted is found, or pleads, guilty. He (again) conflates public perception of guilt and innocence with legal determination. He omits the presumption of innocence as it operates in the American administration of criminal justice. He omits that an accused may admit to his lawyer that he is 100% guilty but he wants to plead innocent and can in perfect theory and perfectly ethically be acquitted.

It may be in that the court of public opinion the accused is presumed guilty but clearly not so in law. But it is the American system of justice that is pilloried in this second j’accuse. Levy’s outrage here is rooted in his ignorance or else bad faith for what he pretends not to know and French law in no way saves him...

Your thoughts?

Sophia:

I think, when you cut through the verbiage, that (judging from what I've gathered) a lot of people in France believe that DSK was set up.

I don't know if this is true or not. But, it's affecting the dialogue, for sure, and not just from intellectuals - hence, Berman's article. Now, I would hope that US/French relations are stronger than this - nevertheless, there is a point to the unease. Part of that point is perhaps a sense that America is hypocritical.

And, going a step further with the BHL thesis that DSK isn't an ordinary presumed criminal (or presumed innocent - which is it?) one could argue that, as a person in the US is innocent until proven guilty, ALL people who've been arrested should be treated as innocents (not just important people). Flip Henri-Levy's argument upside down and you'll see what I mean - what HE means I think.

The other side of the story about my fiancee - that night in jail. It was clearly a bad night. Things happen to people in jail and at the hands of the authorities.

So, this isn't just about DSK. It's about the rights of people who've been grabbed, for whatever reasons, by the authorities. It includes especially those who can't get out of jail on bond, people who might be stuck in jail for months or even years until they go to trial.

Extend what BHL is saying here - haven't many of us been arguing the same for people in Gitmo? But also - things happen in our judicial system - real brutality at the hands of police, devastation of reputation - but also - brutality in the prison system.

So, step back a minute from the personalization here - and I do understand what many are saying about DSK and the presumption that because he is powerful he should still be given the same treatment as anybody else - but stop and think - what does that treatment really entail? especially in a system where we are supposedly innocent until proven guilty.

The fact is, whether you're DSK or Ted, you are not TREATED like an innocent person and the consequences can be dire.

Am I right? Isn't this an issue?

Me;

Sophia:

How can anyone take seriously the possibility that DSK was set up? Such supposing is a mode of conspiracy theory nuttiness. Any French intellectuals promoting such a notion are fools for that. (I haven’t read BHL to claim this, btw.) I’m not sure what you mean when you say, “I don't know if this is true or not.” If you mean you hold to the reasonable possibility he was set up, I’d have to say that surprises coming from someone so seemingly sensible. Is that really what you mean?

Given that I think a set up is wildly improbable—who would have engineered it; under whose authority; by what web of connectedness: it’s all too absurd to contemplate—it marks the unreality of Berman’s piece, in answer to your “hence Berman’s article.” There is, I’d argue, “no point to the unease.” To think there is a point, you logically have to give credence to the reasonable possibility of a set up—which I don’t think anyone can, as I just said.

You say, “Part of that point is perhaps a sense that America is hypocritical.” Again, I’m not totally clear on what you are saying. What do you mean by “American hypocrisy?” Do you mean such hypocrisy that it informs such an “unease” that it’s reasonably possible, reasonably contemplatable, that American power at its (presumably) highest levels conspired to set up DSK? This speaks to a paranoid view of America with shades in it of 9/11 truthism.

I don’t think any of the foregoing bears any connection to BHL’s argument, which seems discrete and separable. As I say, I don’t see him advancing any notion of a set up. So I don’t think you’re going a logical “step further.”

There’s a distinction to be drawn in what might be characterized as part of Levy’s “argument.” (He’s quite non-linear.) Levy both: special pleads for DSK as too important, accomplished, sterling (supply your choice of superlatives) to be treated like other less superlative accuseds—a notion to be rejected out of hand, I strongly assert; and criticizes histrionically a criminal justice system that purports to presume people innocent but treats them as though it presumes them guilty.

The first side of the distinction is contrary to the demand of equal treatment under law and the rule of law. While pre trial procedures, including bail, have to be conditioned case by case in the circumstances of each case, no one should get differential treatment by virtue simply of who they are. When that happens, and of course it does—the administration of criminal justice is a human institution and is as fallible and imperfect as people are—it is to be loudly condemned as outrageous, the very opposite of for what America stands.

The second side of the distinction, DSK, ironically, as everyman, goes to what might be read as Levy’s systemic critique grounded in the failure to abide by the presumption of innocence. Quite frankly, Levy does not know what he’s talking about. The presumption of innocence is a rule of evidence for criminal trials putting the onus and burden of proof on the state to prove its case beyond a reasonable doubt. The presumption does not control every step of pre trial procedure including what is most instructive on this point—bail.

On Levy’s reasoning, it seems, no accused would be confined to jail before trial because of the presumption of innocence. Bail tells the tale otherwise. The bail judge entertains a host of considerations on whether to confine an accused, release him on his own recognizance or conditionally. They include the seeming strength of the case, the seriousness of the charges, the risk of flight, roots in the community, the seeming danger posed by release, and other conceptually related factors that havenot so much to do with the presumption of innocence.

That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course. That all of this does not vitiate an entire system of criminal justice administration—equally of course. Every person arrested has the constitutional right to counsel which entails being represented by, at a minimum, a public defender at a bail hearing so that the question of pre trial confinement can be judicially determined.

Typically people aren’t “grabbed for whatever reason by the authorities” though sometimes they are. Certainly DSK wasn’t. Typically people aren’t detained for years before trial and if they are detained too long, they have constitutional remedies, including dismissal of the case against them, flowing from their rights under the Sixth Amendment.

Guantanamo is a distraction from these issues and doesn’t speak to them because it is an instance of the overlap and tensions amongst American domestic law, the law of war and the fact of war. It is disanalogous to the issues Levy raises and in fact, if you think about it, it highlights the glories of American law, the rights constitutional and otherwise, which get appealed to and argued for in the case of Gitmo detainees, the very rights informing the American administration of criminal justice which Levy vents against as a system.

Sophia:

"That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course."

Really? "Of course" is ok with you?

As to American power - you really don't understand how this past 10 years or so has resonated with many around the world? People are afraid of us. We want to be Camelot but are we?
When people like Henri-Levy criticize us it is because they want to believe in our ideals.
PS - Basman, et.al., have any of you ever been in a situation with the authorities? Or been powerless in some way? I kind of doubt it otherwise you'd get at least SOME of these arguments.

Me:

..."That abuses occur, that mistakes are made, that the state’s power overreaches itself, that the indigent are especially prone to that overreach, that some of these errors are amplified in a culture crazed with sensationalism—of course."

...Really? "Of course" is ok with you?...

OK with me?????

Sorry: this does not follow/compute at all. Why does recognition of the existence of injustices have to mean acceptance of them? Why, does anything short of systemic rejection have to preclude inveighing, fighting, against those injustices?

What have the last 10 years--8, Bush 43; 2, Obama--made America that it was not before? This is hopelessly unclear and way too general. (Camelot is, and always was, horseshit, not to be taken seriously by any thinking person, including Levy. It is a criterion for nothing, measures nothing, save for those who dwell in fantasy.)

Three more things:

1. The motives behind BHL's criticisms are one thing-whatever they are. Who knows but him? But they don't help assuage the histrionic, scattered, emotive, declamatory and misconceived nonsense he sometimes writes as evident by the indefensible above from him, which defense you have not begun to make out.

2. I've, in fact, been powerless. I've been rousted by the cops, bullies, people in authority, others. More, I overcame all of that such I have acted for powerless people a fair bit in my professional life. So I don't need to contend with irrelevant asides about my biography to show I don’t even "get SOME of these arguments." What I need to show me that--and do not think I have received from you-- are meritorious arguments, as opposed to unhelpful, uncontextual and unspecified generalizations about American hypocrisy or peoples' fear of American power or whatever, in response to what I have said. I have no last word on wisdom or anything like it and am wide open to being persuaded by better arguments, evidence or the clear exposition of flaws in my own reasoning. But being told that I'm not getting something based on a mischaracterization of my own experiences is intellectually self refuting.

3. To cap that, I note no substantive response whatsoever to anything I have argued

Similarities and Differences Between Obama's and Netanyahu's Positions

How far apart are Obama and Netanyahu really?

William Galston

May 25, 2011/TNR

In his State Department speech last week, Barack Obama threw down the gauntlet to Benjamin Netanyahu. In the Oval Office a day later, and more fully in an address to Congress yesterday, Netanyahu picked it up and threw it right back.

The question now is whether this clash can be turned into a new understanding between the United States and Israel that improves the prospects for the two-state solution both parties say they want. To bring this about, Obama will have to make further tweaks to his approach and rethink his declared stance on Palestinian refugees, among other matters. For his part, Netanyahu will have to accept the fact that events have overtaken key aspects of the 2004 agreement between the Bush administration and former Prime Minister Sharon. If peace is possible, it is only along the lines former Israeli Prime Minister Ehud Olmert and Palestinian President Mahmoud Abbas explored during their 2006-2008 negotiations.

Obstacles to such a meeting of the minds between Obama and Netanyahu begin at the personal level. Whatever they may say in public, these two leaders genuinely dislike each other. Obama regards Netanyahu as an untrustworthy obstructionist; Netanyahu regards Obama as a blundering naïf.

Second, they disagree about the prospects presented by the status quo. Obama believes that changes on the ground have made it more dangerous to stand pat than to move forward, while Netanyahu believes the reverse. Obama, to his credit, has offered a clear and coherent argument for his position: The demography of the West Bank is shifting to Israel’s disadvantage; technological changes are making it harder for Israel to defend itself in the absence of genuine peace; as democratic movements surge throughout the Middle East and North Africa, Arab publics must see that peace is possible; and as the “international community” is becoming increasingly impatient, Israel is becoming more and more isolated. Resuming peace talks, the argument continues, is the only way of heading off a confrontation at the United Nations this summer that will leave Israel and the United States standing alone, not only against the developing world, but most of Europe as well.

For his part, Netanyahu believes that the turmoil in North Africa and the Middle East makes peace harder, not easier, to achieve and renders the status quo, for all its imperfections, the safer option for the time being. Until a new regime is established in Egypt and new leadership takes power, the future of the Israeli-Egyptian peace treaty—a linchpin of Israel’s security—will remain in doubt. The widening gulf between Israel and Turkey’s Islamist government is disconcerting. It may well be that changes in the region catalyzed the rapprochement between Fatah and Hamas, which only made a bad situation worse.

In addition, the two leaders have different views of the forthcoming UN vote on Palestinian statehood. Netanyahu is prepared to tough it out, even if the Europeans break toward the Palestinian side and only the United States is left to stand by Israel. That is the scenario Obama is desperate to avoid. If America is put in the position of being the last obstacle to international recognition of a Palestinian state, Obama’s aspiration to improve relations with the Arab and Muslim world would probably be thwarted for quite some time. Netanyahu doesn’t think that’s a problem; Obama does.

Even if these differences of perspective could be set aside, however, there’s a third problem: Obama and Netanyahu disagree about the conditions on which Israeli-Palestinian negotiations can and should resume, and the terms on which it should be resolved. Netanyahu’s baseline is the letter President Bush gave then-Prime Minister Sharon on April 14, 2004 as part of a sequence of events including Israel’s withdrawal from Gaza and the construction of its security fence. Here, verbatim, are the relevant portions of that letter:

“The United States is strongly committed to Israel’s well-being and security as a Jewish state.”
“As part of a final peace settlement, Israel must have secure and recognized borders, which should emerge from negotiations between the parties in accordance with UNSC Resolutions 242 and 338.”

“In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949, and all previous efforts to negotiate a two-state solution have reached the same conclusion. It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.”

“[A]n agreed, just, fair, and realistic framework for a solution to the Palestinian refugee issue as part of any final status agreement will need to be found through the establishment of a Palestinian state, and the settling of Palestinian refugees there, rather than in Israel.”
“[T]he United States supports the establishment of a Palestinian state that is viable, contiguous, sovereign, and independent …”

It is against this baseline, which Israel’s right-wing coalition and its many American supporters cherish, that Netanyahu judged what Obama said at the State Department on May 19. Here are the corresponding sections from Obama’s speech:

“[A] lasting peace will involve two states for two peoples: Israel as a Jewish state and the homeland for the Jewish people, and the state of Palestine as the homeland for the Palestinian people …”

“[T]he borders of Israel and Palestine should be based on the 1967 lines with mutually agreed swaps …”

“The Palestinian people must have the right to govern themselves … in a sovereign and contiguous state.”

“I’m aware that these steps alone will not resolve the conflict, because two wrenching and emotional issues will remain: the future of Jerusalem, and the fate of Palestinian refugees.”

This schematic comparison clarifies what is and what is not in dispute between Netanyahu and Obama. They clearly agree on a two-state solution, on the need to recognize Israel as a Jewish state, and (less clearly) on the importance of territorial contiguity for a Palestinian state. And whatever Netanyahu might wish, both Bush’s letter and Obama’s speech leave open the final status of Jerusalem.

The comparison also identifies key points of difference between the Bush and Obama administrations, and between Obama and Netanyahu. First, along with the vast majority of Israelis, the Bush administration believed that the refugee problem could be resolved in only one way: The refugees would have the right to return to the new independent Palestinian state, but not to Israel. By contrast, Obama explicitly left that issue open. Whatever his rationale, any Israeli government is bound to find that stance disconcerting. Obama surely understands that any significant flow of Palestinian refugees to Israel would be a deal-breaker. If he’s in the business of saying out loud what everyone already knows, this would be an appropriate addition to the list.

The other and better-known disagreement revolves around the formulation of the border issue. In the first place, Bush’s letter emphasizes “new realities on the ground, including already existing major Israeli population centers,” as does Netanyahu, while Obama’s speech is conspicuously silent about them.

Second, Bush’s letter speaks of the 1949 armistice lines while Obama speaks of the 1967 lines. Although these are in fact the same lines, the Bush formulation has the effect of emphasizing the provisional and de facto nature of the former rather than de jure character of the latter. The armistice lines cited by Bush reflect a cease-fire based on the military situation at a particular point in time, nothing more.

Third, Bush’s letter refers to UN resolutions 242 and 338, which are notoriously (some would say deliberately) ambiguous about the extent of Israeli withdrawal, while Obama specifies the 1967 lines as the point of departure. Having said this, when Bush spoke of mutually agreed “changes,” the context makes it pretty clear that the changes will be in relation to the 1949 armistice lines, i.e. the 1967 lines.

At the end of the day, then, the most significant difference between Obama and Bush, and between Obama and Netanyahu, concerns the American attitude toward large Jewish settlement blocs east of the 1967 lines. Bush explicitly resolved that question in Israel’s favor, while Obama leaves it open. In his address to Congress, Netanyahu declared that any territorial compromise would have to leave the hundreds of thousands of Israelis who inhabit what he called the “neighborhoods and suburbs of Jerusalem and Greater Tel Aviv” inside the borders of Israel.

He also stated, opaquely, that “other places of critical strategic and national importance” would also have to be incorporated into the Jewish state. In sum, he concluded, “Israel will be generous on the size of a Palestinian state but will be very firm on where we put the border with it.”

In addition, Obama addressed two other fraught issues at the State Department on which he does not see eye-to-eye with Netanyahu. He declared that “The full and phased withdrawal of Israeli military forces should be coordinated with the assumption of Palestinian security responsibility in a sovereign, non-militarized state.”

This formulation gives something to each side. However it might be timed, a full withdrawal of Israeli military forces would rule out an Israeli security corridor along the Jordan. On the other hand, the requirement that an independent Palestine remain non-militarized leans toward a key demand Netanyahu made in his pivotal speech of June 14, 2009, in which he explicitly promised to work toward a two-state solution. In his speech to Congress, however, Netanyahu took a tough line on both points. He stated that Israel must maintain what he called a “long-term military presence” along the Jordan River, and he insisted that any Palestinian state must be “fully demilitarized,” a standard which (as past negotiations have shown) is more rigorous than “non-militarized.”

Obama also created more problems for himself when he waded into another issue—the diplomatic implications of the Egyptian-brokered reconciliation between Fatah and Hamas. On Thursday, he put it this way: “Recognizing that negotiations need to begin with the issues of territory and security does not mean that that it will be easy to come back to the table. In particular, the announcement of an agreement between Fatah and Hamas raises profound and legitimate questions for Israel: How can one negotiate with a party that has shown itself unwilling to recognize your right to exist? And in the weeks and months to come, Palestinian leaders will have to provide a credible answer to that question.” This vague formula seemed to reopen issues long regarded as settled—in particular, the steps that Hamas would be required to take before it could qualify as a legitimate participant in negotiations.

The president and his advisors quickly realized that his Thursday language concerning Hamas was unsatisfactory, however, and they toughened it considerably at his speech at AIPAC on Sunday. He said that “No country can be expected to negotiate with a terrorist organization sworn to its destruction … we will continue to demand that Hamas accept the basic responsibilities of peace, including recognizing Israel’s right to exist and rejecting violence and adhering to all existing agreements.” (For good measure, he called on Hamas to release Gilad Shalit, an Israeli soldier it has held captive for five years.) For his part, Netanyahu told Congress that Israel would not negotiate with a Palestinian government backed by “the Palestinian version of al-Qaeda,” and he called on President Abbas to “tear up” his pact with Hamas as the prelude to any new talks.

As he flew toward America for his confrontation with Obama and pivotal address to Congress, Netanyahu basically had two basic options. The first was to stand fast to his prior positions on borders, refugees, and settlements and attempt to rally American pro-Israel sentiment, weakening if not isolating Obama. That’s the default position for risk-averse politicians in both American parties, and it’s a solid foundation for a Likud prime minister who wants to stand his ground. For now, that’s also the path that he has chosen, and it’s working. On Sunday, right before President Obama spoke to AIPAC, Steny Hoyer, the second-ranking House Democrat, delivered a speech that Netanyahu could have uttered virtually verbatim. On Monday, Senate Majority Leader Harry Reid treated AIPAC to what was widely regarded as a rare public rebuke of President Obama. On Tuesday, members of Congress of both parties gave Netanyahu a hero’s welcome.

There’s another option for Netanyahu, however. Between December 2006 and September 2008, former Israeli prime minister Ehud Olmert and PA president Mahmoud Abbas met dozens of times and substantially narrowed their differences, to the point that American bridging proposals might have sealed the deal. While it was predictable that the incoming Netanyahu government would choose to begin in a different place when it took office early in 2009, much has changed since then. In particular, the prime minister has learned that his right-wing coalition can be a burden as well as a blessing.

We will never know what might have happened if Netanyahu had been able to persuade Tzipi Livni to assume a leading role in a Likud-Kadima government. It’s pretty clear, though, that Netanyahu would have been able to dispense with the services of his odious foreign minister Avigdor Lieberman, whose party provides the current government’s majority. If Netanyahu wanted to be an historic statesman and not just a successful party leader, he would seize the opportunity to revisit that fateful choice and be positioned to resume some version of the Olmert-Abbas talks.

To be sure, as long as Hamas maintains its current posture, no Israeli government can possibly enter into negotiations. Strained legalisms about the PLO as lead negotiator will cut no ice politically because they don’t touch the core reality: There’s a difference between a true peace and a long truce. Unless Israel can be confident that the Palestinians want to end the struggle, not just postpone it, they won’t make necessary compromises. Nor should they.

But trust works both ways.

It’s far from clear that Netanyahu’s commitment to a two-state solution is more than tactical. It is one thing to declare it as a goal, another to do what is necessary to bring it about. If Netanyahu really means it, he should abandon the rhetoric that appeals to post-1967 religious ultra-nationalism, and he should adopt the product of the Abbas/Olmert talks as his baseline.

That would be the Palestinians’ moment of truth. In mid-2009, Olmert wrote that “To this day, I cannot understand why the Palestinian leadership did not accept the far-reaching and unprecedented proposal I offered them.”

That’s a fair observation, and an essential question. In the short term, Netanyahu has staked out a position he knows the Palestinians cannot possibly accept. But down the road, he should find out whether the Palestinians will say yes to the best proposal that any Israeli government could possibly make. And if they won’t, Israel and the United States should move on.

Whatever Does She Mean?

Emily Dickinson

I dwell in Possibility – (466)

I dwell in Possibility –
A fairer House than Prose –
More numerous of Windows –
Superior – for Doors –

Of Chambers as the Cedars –
Impregnable of eye –
And for an everlasting Roof
The Gambrels of the Sky –

Of Visitors – the fairest –
For Occupation – This –
The spreading wide my narrow Hands
To gather Paradise

Language Matters

Michael Rubin/Contentions/05.22.2011

One of the more irresponsible press habits during the Iraq war was the inconsistent use of the passive voice. Americans might kill five Iraqis in an operation gone awry, but when a bomb went off in a school yard, the major networks and newspapers would passively report, “20 children killed in Iraq.” Never would they say, “Terrorists killed 20 children in Iraq.”

Over time, the message of the language matters: When people talk about the tens of thousands of civilians killed after Saddam’s fall, they ironically assumed American responsibility rather than realize that it was the terrorists killing Iraqis whom the Americans and Iraqi government jointly were fighting. To abandon Iraq amidst the terrorist insurgency would not (and will not) bring peace and security, but would be the equivalent of handing Cambodia to the Khmer Rouge.

In the Arab-Israeli conflict language also matters. Israel’s borders today are the 1967 borders, modified only by the annexation of Jerusalem and the Golan Heights and some minor arbitrated settlements with Egypt, Jordan, and Lebanon. Why do we talk about President Obama demanding that Israel go back to the 1967 borders when he technically means withdrawal from the West Bank and portions of Jerusalem to return to the pre-1967 border, i.e., the 1949 Armistice Lines?

Technically, the West Bank is disputed territory, not occupied territory. There was no independent Palestine in 1967 before the Six-Day War. The status of the territory was just as unresolved before 1967 as it was after. If the Israelis “occupy” the portions of the West Bank unresolved under Oslo and subsequent accords then the Palestinian Authority also “occupies” those areas. To resolve the dispute takes negotiations and compromise, not mob rule or executive fiat. Make no mistake: I personally favor a two-state solution and believe that Israel will not ultimately possess the entirety—or even the majority of the West Bank—but I also believe that after so many wars launched from the West Bank, peace requires defensible borders, not an advanced front line for Arab, Iranian, and perhaps Turkish rejectionists bent on Israel’s annihilation.

Along the same lines, the term settlement shows tremendous bias. If portions of Jerusalem are unresolved, then new Palestinian construction on disputed lands are as much “settlements” as new Israeli construction. To speak of Palestinian civilians and Israeli settlers is to accept a false narrative and a dehumanizing one.

It behooves those who believe that Israel matters and its security and Jewish identity are important to be accurate with language. Otherwise, they simply cede points in negotiations and risk putting Israel in an even more precarious position as diplomacy continues.