It's hard to refuse to ransom an Israeli kidnapped by terrorists, but sometimes one has to do so.

This was not an easy blog to write.
If the kidnappers win, if they manage to bring about a deal on their terms, they send a clear message: Israel may have atomic bombs and a mighty air force, but it lacks the willpower necessary to survive.

Today a government committee is meeting in Jerusalem to decide on "easing" the criteria Israel uses in freeing convicted terrorists.  The object is to be able to free murderers or direct accessories to murder in return for Gilad Schalit, who's been held captive in Gaza for over a year and a half.  If the deal is done, Hamas and Islamic Jihad will be able to rack up a victory and concentrate on their next kidnapping.

It's not easy for an open society to deal with political kidnappings.  The pain of the victims' families cannot be wished away.  From the perspective of the families themselves, it makes sense to use their pain for PR purposes, pressing the government to cut a deal.  After all, they didn't ask for their loved ones to be kidnapped; if the Israeli government wants to make a point of opposing blackmail, let it do so at someone else's expense, not theirs.  Here in Israel, supporting the release of the kidnapped soldiers is portrayed as both patriotic and humane, which is one reason why Prime Minister Olmert's spinmasters are pressing him to do a deal.  Yet while the motives of simple, ordinary people who support the upcoming Schalit deal cannot be impugned, the future may reveal that it is a big mistake.

Political kidnappings are a great tactic for the weaker side.  Even if a terrorist group cannot beat its enemies in open combat, it can always pull off a kidnapping.  Kidnapping puts both sides on the same level:  The contest is not about who has more brute physical force but about relative toughness and determination.  If the kidnappers win, that is, if they manage to bring about a deal on their terms and demonstrate that kidnapping is a profitable tactic over the long term, they send a clear message:  Israel may have atomic bombs and a mighty air force, but it lacks the willpower necessary to survive.  Eventually it will fall.  If impending deal goes through, that is the message that Palestinians and the wider Arab world will internalize.

For these reasons, I oppose the upcoming deal with Schalit, hard as it is to say so.  Cutting this deal condemns us to more kidnappings in the future.
Never release, in exchange for an Israeli kidnap victim, a terrorist who was in jail at the time the kidnapping took place. Terrorists must know that they can never, never get someone released by kidnapping a hostage.

This doesn't mean I oppose all prisoner-exchange deals in principle—as long as they do not validate political kidnappings as a strategy.  For that to happen, I believe Israel ought to adhere to two principles:
a) Never release, in exchange for an Israeli kidnap victim, a terrorist who was in jail at the time the kidnapping took place.  Terrorists must know that they can never, never get someone released by kidnapping a hostage.  Only terrorists taken captive after the kidnap victim was abducted can eventually be released.  It is better to forego a deal, even if it means abandoning a particular kidnap victim to his fate, rather than to abet the enemy in making a working strategy out of political kidnappings.
b) As far as possible, Israel should define, in response to a kidnapping, the number and characteristics of the group of terrorists it proposes to release in exchange for a kidnap victim, e.g.:  500 residents of Gaza, married and over the age of 25.  Then it should go get them—provided, of course, that they are actual terrorists.

This will not always lead to the release of hostages.  If, for example, an Israeli citizen was kidnapped from Europe to Iran, it would be neither possible nor wise to try and "go get" Iranian terrorists to exchange for him.  Refusing to ransom a kidnapping victim is hard,  but sometimes it must be done, or else we'll have a kidnapping every day.  Many years ago Israel captured two terrorist leaders in Lebanon, Mustafa Dirani and Shaykh Obaid, intending to exchange them for Ron Arad.  Whoever held Arad didn't take the bait.  The strategy works best when it is applied to large numbers of terrorist captives, whose relatives can exert pressure on terrorist leaders just as the relatives of Ehud Goldwasser and Eldad Regev, kidnapped by Hizbullah, and Gilad Schalit, kidnapped into Gaza, exert pressure on Israel's leaders.  Ironically, this strategy could have worked for Goldwasser, Regev and Schalit.  Only the culpable foolhardiness and timidity of Israel's current government prevented the attempt from being made.
Refusing to ransom a kidnapping victim is hard, but sometimes it must be done, or else we'll have a kidnapping every day.

Today Israel's army regularly makes deep incursions into the Gaza Strip.  It could have done so earlier.  It could have defined as one of its objectives taking members of Hizbullah and Islamic Jihad captive, concentrating if possible on fathers and elder sons who support families.  If Hamas wanted them back, it would have to release 
Schalit.

The policy I have suggested exposes another aspect of Israel's thoughtless and irresponsible approach to the Second Lebanon War.  If one object of the war was to free Goldwasser and Regev, it should be a no-brainer to figure out that one of the military objectives of the war ought to have been to capture hundreds of Hizbullah prisoners of war.  The Israeli army's original plan for operations against Hizbullah called for penetrating deep into Lebanon and setting up a cordon between Hizbullah's main forces near the Israeli border and its main bases in central and northern Lebanon.  That would have made mass captures possible.

Instead, a rash Chief of Staff (Dan Halutz) promised an unthinking Prime Minister (Olmert)
It should have been a no-brainer to figure out that one of the objectives of the Lebanon War was to capture hundreds of Hizbullah prisoners of war.
that he would achieve all the war's objectives by aerial bombing.  Neither of them seems to have stopped for a minute to think about the real objectives of their war or what they would have to accomplish in order to realize them.

The upcoming Schalit deal demonstrates once again Olmert's lack of capacity for strategic thinking.  According to Olmert we're supposed to be in "reinforce Abu Mazen" mode now.  Yet compared to Abu Mazen, to whom Olmert did the paltry favor of releasing a few hundred prisoners, most of them common or garden crooks,  Ismail Haniya of the Hamas will be able to rack up the release of many hundreds more prisoners, including for the first time murderers or accessories to murder.  That will really send a signal to ordinary Palestinians whom they should place their bets on.

Many Israelis have died as a result of Barak's interference in the country's ability to wage war in the name of the enemy's civil rights.

Two legal giants debated how a democracy can guard itself from its enemies, and its liberties from itself

Last night I had the privilege of hearing Aharon Barak, former Chief Justice of Israel's Supreme Court, debate with the eminent, conservative Judge Richard Posner, who sits on the US District Court for the 7th Circuit and teaches at the University of Chicago Law School.  The venue was the Hebrew University and topic was "Law and the War Against Terror."  What added to the piquancy of the event is that some months ago Posner wrote a devastating review of Barak's recent book, The Judge in a Democracy.

Many Israelis have died as a result of Barak's interference, in the name of the enemy's civil rights, in Israel's ability to wage war.  23 reservists died in Jenin in 2002 assaulting a building packed with terrorists.  Israel's air force could have flattened the building with one bomb, but refrained from doing so lest there were civilians within.  Barak has decided where company commanders can and cannot shoot in combat, and where Israel should build its security fence in Judaea and Samaria  Had Barak's court not prevented Yitzhak Rabin in 1994 from expelling 400 Hamas leaders to Lebanon, Israel might not face Hamastan in Gaza today.  Hamastan continues to exist because the legal legacy Barak left continues to make it impossible for the Israeli army to fight effectively in the built-up areas of the Gaza Strip.

In the debate Barak argued that judges, as experts in civil rights and in interpreting the law, are uniquely equipped to determine the balance between national security and civil rights.  He asserted that the role of the judge is to be the guardian of democracy and civil rights, and that the law cannot be one thing in wartime and another in peace. He stated that the decisions of judges in wartime are more important than those of generals and politicians, because judicial compromises on civil rights leave a legacy while political and military decisions in wartime are passing phenomena.  He did not see fit to mention that when someone dies because the court prevented his country from defending him effectively, that death is as permanent as any judicial decision, or that whole countries can die from lack of an effective defense.

Posner opposed Barak on almost every point.  Democracy, he said is rule by the people.  The presumption is that
Posner said justice, fairness, or civil rights are abstract concepts of uncertain meaning, and a judge doesn't necessarily understand them better than anyone else.
their will should prevail.  Provocatively, he said that he did not intend to talk about justice, or fairness, or civil rights, because these are abstract concepts of uncertain meaning, and a judge doesn't necessarily understand them better than anyone else.  That's why, in the US, the Constitution assigns a relatively modest role to judges and gives Congress control both over the budget of the judiciary and over the extent of the courts' jurisdiction. 

It's absurd, said Posner, to assume the law must be the same in peace and war.  In the civil war Lincoln suspended the right of habeas corpus, probably illegally, but that was justified by the war situation and few made an issue of it.  After the war the American people's commitment to liberty returned stronger than ever.  US courts don't make strategy in real time as Israel's Supreme Court does, but adjudicate specific disputes after the fact. It takes years for a case to wend its way up to the Supreme Court, giving the court the time and perspective to consider the long-term consequences of the case before them.  As to the right of "interpreting" the law that Barak claims, Posner argued that "interpretation" actually means creation, and can lead not to the rule of law but to rule by judges.  To my surprise and pleasure, a large minority of the audience applauded.  The hall of course was largely packed with Barak groupies.

Barak arose to rebut.  In contrast to his initial talk, which was wooden—he cited his own judicial opinions nine times—now he was casual, and even permitted himself to be passionate.  One couldn't help liking this side of the man.  "I do believe in justice, fairness and civil rights," he said.  Could Posner's position actually reflect adequately the American legal tradition of Benjamin Cardozo or William J. Brennan?  Barak the liberal had harsh criticism for the Patriot Act:  "You Americans lectured Israel for years on how we ought and ought not to conduct our wars, and then when you got into a war yourselves—you lost your trousers."  This was also payback time for that harsh review.  Barak called Posner's view of the role of a judge in democracy "narrow and shallow."  "I am disappointed by your criticism of my theory of judging.  I can survive that criticism very well."

Posner waived the right of response.  Indeed, his ability to make one is hampered by his not being an Israeli or familiar with Israeli jurisprudence under Barak's aegis.  The real question Israelis have a right to ask Barak is:  If you assert the right to be considered the guardian of democracy and civil rights, how well have you executed that high trust?  What about politically motivated decisions that led to the closure of Arutz 7, and many other decisions, involving exactly equivalent issues, in which right and left were treated unequally? 
The real question Israelis have a right to ask Barak is: If you assert the right to be considered the guardian of democracy and civil rights, how well have you executed that high trust?
What about the greatest violation of civil rights in Israel's recent history—disengagement, where the guardian of liberty, in his written opinion, deferred to the judgment of the Knesset and refused to defend rights because that was the position he had voted for in the privacy of the polling booth?  And what about the fact that the court has, finally, emasculated Israel's self-defense and confronts the country with the choice of either feebly absorbing the blows of its enemies or else trashing its judicial system and starting over?

One more noteworthy thing emerged from the debate.  Richard Posner is skeptical about the unique wisdom of judges because he has immense, and justified, confidence in the American people's wisdom and love of liberty.  Underlying Barak's viewpoint is a fundamental lack of confidence that Israel's people can be trusted to maintain their own liberty.  One wonders if this lack of confidence is not equally justified.

Comment on the Talkbacks

I don't usually comment on talkbacks.  Blogging means letting the public comment frankly on one's views.  One should take valid criticism like a mensch, without arguing back, and ignore impertinent criticism.  But the responses this week raise interesting point for further discussion--and for some reason my computer won't let me do that through the ordinary talkback function, so I'm doing so here.

To sk:  Bingo.  I omitted to mention that Posner opened his remarks with precisely your observation, that the US Constitution relies on the balance of powers, of which the judiciary is only one, to check the excesses of democracy.  Fundamentally, the issue of how society can maintain both liberty and its own survival goes back to a perspective shared by Plato, Aristotle and (l'havdil) Jeremiah:  A society without virtue cannot stand.  The fundamental assumption of the US founding fathers, hitherto largely vindicated, is that the American people possess the virtue to maintain their liberties.  Since there are now 100 times more Americans than there were in 1789, something is clearly enabling Americans to propagate a culture of virtue both in time and with respect to numbers.  But I don't think it's compatible with the views of government you (with the authors of the Federalist) express to assume that it's government that does it.

BTW Posner does not agree with your view of Barak; he said that if there were a Nobel prize in law, Barak would be a candidate.  Which leads one to wonder why Posner doesn't have one--say, in economics.  Coase and Buchanan got theirs, but they (I think Coase as well) were economists coming from the quantitative side, which apparently makes a greater impression in Sweden.

I would be pleased to get an email and learn who "sk" is.

To Adina, to ingather exiles from the four corners of the earth, form a free society, and defend it for generations against deadly enemies requires vast reserves of public virtue.  It is interesting to note that the haskala movement and the movement of the vast majority of Jews to integrate (descend?) into modern secular culture began about the same time as the American political experiment.  My great fear is that an Israeli society founded on modern/postmodern secular culture may not possess the reserves of virtue necessary to survive.  I think Barak shares this view--though as a child of that culture, he is crippled by lacking the concepts and habits of mind to think in the terms I am using.  He viewed it as his task to supply the necessary virtue "from above."  Is this-in him-virtue, or immense hubris, as you argue?  Both traditional philosophy and modern historical experience ought to have warned him that it was likely to be hubris.  But children of modern culture seem impervious to that message and always assume they have the wisdom to fix the world.

Israel's government's unwillingness to do what's necessary to stop the bombardment of Sderot exhibits all its warts.

Sderot is under constant bombardment from Hamastan.  The only residents left are those unable to run away.  The only thing that can stop the rain of Kassams is for Israel's army to go back into Gaza, eliminate Hamastan as a political entity, seize the missiles and their launchers, and kill those who have been firing them.  The back-to-Gaza operation has been talked about for months.  Why isn't it happening?
Israel's legal system will never permit the IDF to do the job as it should be done. If Israel's army must attack Gaza, Israel's judges and jurists want the soldiers to walk up to enemy held buildings, knock on the door, and yell, "any women and children in here?" Playing by these rules, Israel could take massive casualties and, as in Lebanon, not even win.

The question gets sharper when one considers the future.  According to Israeli military authorities, Hamas is about to cross two technological thresholds.  One is to improve the range of its missiles to about 10 miles.  This means it will be able to hit towns in Israel from anywhere in the Gaza Strip.  The other is the ability to store missiles for months at a time without their rocket fuel or explosive warheads deteriorating; today kassams have to be fired off soon after they are manufactured.  Once these thresholds are passed, Hamas will be able to store hundreds of kassams and, in the event of an Israeli attack, rain them on Israeli towns from Ashdod to Netivot, reproducing around Gaza the conditions of Israel's northern region during the Second Lebanon War.

So why doesn't Israel move first?

The answer illuminates a lot that is wrong about Israel's present system of government. 

One element of the answer has to do with Israel's legal system.  A couple of months ago Israel tried to do a simple thing:  Cut the supply of fuel and electricity to Gaza, so as to put pressure on the Hamas regime.  The Attorney General, Menahem Mazuz, intervened.  Can't do that, he said.  It's against the civil rights of the people in Gaza.

Now fighting in Gaza will be tough:  It means going into built-up, urban areas, laced with mines, antitank missiles and machine guns, and thousands of well-trained defenders.  To do the job you need to use aircraft and artillery—really use them; in principle you never want your own troops to assault an enemy-held building while it is still standing, only after your planes and cannon have knocked it down and pulverized the rubble and whoever is in it.  Israel's legal system will never permit the IDF to do the job as it should be done.  If Israel's army must attack Gaza, Israel's judges and jurists want the soldiers to walk up to enemy held buildings, knock on the door, and yell, "any women and children in here?"

Israeli military authorities estimate that an assault on Gaza would cost a hundred fatalities.  That sounds to me like a serious underestimate.  Playing by the Mazuz rules, Israel could take far more casualties and, as in Lebanon, not even win.
The last thing Barak needs is to be held responsible for a bloody, losing fight in Gaza. That would end his second political career before it got properly started. And what could be more important than Ehud Barak's political ambitions?

The second element of the answer has to do with the quality of Israeli politicians.  Ehud Barak is Israel's defense minister.  When he entered the office a few months ago, he thought he was on the inside track to the Prime Minister's office.  It turns out he was wrong.  He isn't much more popular than Ehud Olmert is.  The last thing he needs is to be held responsible for a bloody, losing fight in Gaza.  That would end his second political career before it got properly started.  And what could be more important than Ehud Barak's political ambitions?

Barak was skeptical about Olmert's Annapolis adventure from the beginning.  Then he himself accompanied Olmert to Annapolis, and suddenly became a convert.  "We can't attack in Gaza," he leaked to the press, "that would prejudice our wonderful opportunities for peace."  I find it hard to credit the idea that Barak suddenly discovered, at Annapolis, an Arab world yearning for peace and a Palestinian leadership capable of doing anything to bring it about.  But it makes a wonderful excuse not to get into that losing fight around Gaza.

Of course, such an approach is extremely shortsighted.  In a matter of weeks or months Hamas will start shooting missiles at more Israeli cities like Ashkelon, Ashdod and Netivot—only a few a day, of course, enough for Ehud Barak, safely ensconced in his Tel Aviv office, to consider bearable, while for the residents of the targeted cities life slowly becomes unbearable.  If Israel attacks, then the missile strikes will escalate to a hundred a day, just like in the Lebanon war in 2006.
The Olmert-Barak cabal needs to be swept out of office. And Israel needs to trash its legal system and replace it

All this shows the magnitude of the change Israel needs.  The Olmert-Barak cabal needs to be swept out of office, to be replaced by a leadership whose first priority is to defend the lives of Israeli, not Palestinians, civilians and soldiers.  There is more, however.  Put simply, Israel needs to trash its legal system and replace it: sweep  judges and jurists who won't let Israel fight to save its citizens' lives out of office and replace them with others who will.  For that one needs brave and determined political leaders.

The American intelligence revelation:  The Iranians are not trying to get something they don't need and shouldn't want.  So what?

I confess that I don't follow the progress of Iranian bomb technology at all closely, a habit I perhaps should change.  One can take it for granted that Iran will get a deliverable nuclear weapon, or several, if nobody does anything to stop her.  That's why I find the brouhaha over the new American intelligence report a bit puzzling. 
One can take it for granted that Iran will get a deliverable nuclear weapon, or several, if nobody does anything to stop her.
As I understand it, the report says Iran is not developing a plutonium nuclear device, which requires sophisticate electronics and exquisitely machined parts.  Why this is supposed to be big news is beyond me.  On August 6, 1945, 75,000 residents of Hiroshima were wiped out in an instant, and not one of them was killed by a plutonium nuclear device.

Nuclear bomb technology is, as technology goes, very old.  It represented the frontier of science in 65 years ago. At that time there were four nations—Russia, Germany, Britain and the US—with the knowledge and resources to develop a bomb in a reasonable time.  All of them, however, were busy fighting the biggest war in history, and only the United States possessed the sheer resources to fight and develop a bomb at the same time.  But if Germany hadn't started a war it couldn't win it could have gotten a bomb, easy.  Iran is still considered a third-world nation, but its economy today is a lot larger than Germany's was in 1942, and it's at peace.

Iran's biggest problem right now is getting enough Uranium-235 to be useful in a bomb, and it's working on this problem all-out.  Doing so with magnetic centrifuges requires some pretty fine electronic technology, but remember, this problem was solved 65 years ago.  The Iranians appear to have solved it too.

Making a bomb out of Uranium 235 once you have it is relatively easy.  All you need to do is get a couple of large pieces of the stuff, put them at the far ends of a large metal tube, and place high explosive behind one of them so you can shoot it toward the other whenever you feel inclined to blow someplace up.  The whole project can probably be done with the equipment in a good truck repair shop.
The entire American intelligence report strikes me as a revelation about an irrelevance.

So the entire American intelligence report strikes me as a revelation about an irrelevance.  To get a plutonium bomb, the Iranians need to solve three difficult technical problems:  a) get uranium; b) turn it into plutonium; c) build the plutonium into a bomb.  To get a uranium bomb they only need to solve the first.  They're doing things the simplest way from their perspective.

It still seems to me that if anyone wants to stop them, he better get his act together real soon.   

Annapolis turned out worse than we would like, but a lot better than we feared.

Annapolis will prove useless in settling the Israeli-Palestinian conflict and damaging to the State of Israel, but the
The mood of alarmism in which Annapolis was anticipated, and in which it has been received, among some of us is overdone and damaging
mood of alarmism in which it was anticipated, and in which it has been received, among some of us is overdone, and damaging in itself.  While Annapolis will have immediate negative consequences which should be combated to the best of our ability, it would be a big mistake to focus our efforts exclusively, or even primarily, on fighting the direct consequences of Annapolis.  The most important fact about Annapolis is that the Israeli public views it more or less as do readers of this site:  pointless at best, and likely harmful.  The second important fact about it is that sooner or later it will disappear down the memory hole of history, like the Wye Plantation accords and the Oslo accords themselves.

The great thing to fear from Annapolis was that Ehud Olmert would lock Israel into some kind of diplomatic commitment regarding substance—Jerusalem, borders, settlements, etc.—which might bind future Israeli governments.  This did not happen.  Olmert made clear he loves the idea of a Palestinian state.  He yearns for a Palestinian state.  He sets a Palestinian state with Jerusalem as its capital above his highest joy.  But he did not commit the State of Israel to doing anything about it, except to talk.  He did commit Israel to negotiate an agreement about everything within a year.  Those negotiations will lead to nothing, just as the negotiations of the past six months have led to nothing.  Thankfully, when the negotiations become nothing and the Olmert government, in the fullness of time, becomes nothing, it will leave the next Israeli government with a diplomatic clean slate.

Olmert's big concession at Annapolis was to hand over to the United States the responsibility for judging how both Israel and the Palestinians are doing in fulfilling their commitments under stage one of the "road map."  Under stage one, the Palestinian authority is supposed to suppress "terror."  Since "terror," in the form of Hamas and its patron Iran, is much more likely to suppress the Palestinian Authority, we can safely bet that the first stage of the road map will never be completed.  That is the uniform opinion of Israel's military establishment, up to and including Ehud Barak.  But the United States, concerned to show "progress," will probably make Israel press ahead with its own commitments, which hitherto Israel has refused to implement unilaterally:  Expelling Jews from "outposts" in Judea and Samaria and reducing its security presence in those areas.  The Jews in Judaea and Samaria, and perhaps in Israel itself, are about to take damage.  The damage will be pointless, because there is no way it can lead to an agreement, far less its implementation, but that's the way it is with Olmert in charge.  Lives will be wrecked—perhaps mine, perhaps my neighbor's—but the Jewish People will be able to repair the damage and go on.
The people now see the big picture our way. They just don't know what to do about it.

How can I write such a hard and heartless thing?  I don't mean to be heartless, but we can use some stiff upper lip around here.  Since the Lebanon War last year, the tide in Israel has turned.  The people now see the big picture our way.  They just don't know what to do about it.  Everything we do and say ought to be directed at leading public opinion in Israel.  What we need to do is not just fight Olmert's commitments under Annapolis but get the public to see them our way:

1. Olmert's commitments will cause needless damage to Israel's interests, to the cohesion of its badly riven society, and to individual Israelis, and it will all be pointless.
2. Anyone who stays in the Olmert government and lets this happen, especially Shas and Avigdor Lieberman, is helping Olmert inflict pointless damage on his own people and should be punished at the polls.
3. The two-state solution is dead.  Hopelessly unattainable.  Israelis ought to become impatient to get on with some alternative solution to Palestinian society's unappeasable hatred of us, such as compensated Palestinian emigration to other lands.
   Olmert's commitments will cause needless damage to Israel's interests, and it will all be pointless. Anyone who stays in the Olmert government and lets this happen, especially Shas and Avigdor Lieberman, is helping Olmert inflict pointless damage on his own people and should be punished at the polls.
   

In all this a lot depends on our ability, not to scream "gevald" and wring our hands, or to allow Olmert to create the impression that this is an issue solely between him and "the settlers," but to stay focused on the objective:  Israeli public opinion.  Yesterday my colleague, Prof. Moshe Koppel, reported to me with displeasure that he heard an interview with residents of Judaea and Samaria, in which the latter promised "to defeat"  Olmert's plans.  Why displeasure?  Because this allows the press to portray the issue as one that does not concern the residents of Raanana, Kfar Saba and West Jerusalem, when actually they stand to suffer the fate of Sderot if Olmert succeeds in realizing any part of his plans.  What should the interviewees have said?  "We warn residents of Raanana that if Olmert succeeds in his plans for us kassams will rain down on their houses, just as Ariel Sharon's plans led to kassams on Sderot."   Most Israelis who hear that will now agree.