Roundtable on Targeted Killing

[Reaper drone screen. Image from unknown archive.] [Reaper drone screen. Image from unknown archive.]

Roundtable on Targeted Killing

By : Noura Erakat, Richard Falk, Leonard Small, Pardiss Kebriaei, Nathan Freed Wessler, and Lisa Hajjar

[The following series of articles is part of a Jadaliyya roundtable on targeted killing. It features contributions by Noura Erakat, Lisa Hajjar, Leonard Small, Richard Falk, Pardiss Kebriaei, and Nathan Freed Wessler. The roundtable was first published in March 2012.]

Part I: Jadaliyya Roundtable on Targeted Killing: Introduction

Part II: A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing

Part III: Lawyering and Targeted Killing

Part IV: The Need for Judicial Review of US Targeted Killing Practices

Part V: The Secret Bureaucracy of Targeted Killing

Part VI: Lawfare and Targeted Killing Revisited--A Response

 

Introduction, by Noura Erakat (Open in separate window)

On 5 March 2012, Attorney General Eric Holder delivered a speech in which he laid out the US position on law and national security. The second half of his speech was devoted to the targeted killing program, which has escalated dramatically during the Obama administration. Although the military and Central Intelligence Agency (CIA) have been engaged in such attacks for years, rarely have government officials acknowledged the practice on the record. Holder stated that he could not "discuss or confirm any particular program or operation," but his speech was significant for publicly outlining the Obama administration`s position on the rationales under federal and international law. The most contentious issue, at least domestically, is the targeted killing of US citizens abroad. He defended the legality of such operations and, implicitly, the legality of excluding the courts from playing any oversight role. "`Due process` and `judicial process` are not one and the same," Holder said, "particularly when it comes to national security. The Constitution guarantees due process, not judicial process."

In this Jadaliyya Occupation, Intervention, and Law (O.I.L.) roundtable on targeted killings, Richard Falk, Nathan Freed Wessler, Pardiss Kabriaei, and Lennie Small engage with Lisa Hajjar’s “Lawfare and Targeted Killing: Developments in the Israeli and US Contexts.” They offer interventions that extend the discussion in a variety of directions, and she provides a response to their contributions.

Hajjar’s thought-provoking essay traces Israeli and US efforts over the last decade to establish the legality of the practice of targeted killing. She terms this “state lawfare,” which she defines as:

Interpretative innovations … devised to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable. In these twenty-first century asymmetrical conflicts, officials interpreted the law to assert the state’s operationally and territorially unbounded rights and the rightlessness of its enemies.

She also examines another aspect of state lawfare, namely efforts to challenge the legality of targeted killing policies in national courts in Israel, the United States, as well as several other countries.

Richard Falk, a world-renowned scholar of international law and politics who currently serves as the United Nations (UN) Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territories, highlights the impact of reciprocity in international law. He argues that the influence of US and Israeli arguments about the legality and legitimacy of targeted killings may embolden other states to follow suit, adopting the practice and asserting its legality. He warns that because the international community would probably respond to targeted killings by other regimes as terrorism, the current situation portends double standards similar to those which exist in relation to criminal accountability for gross crimes and the proliferation of nuclear weaponry. Falk also argues that the use of self-defense rationales by the United States to justify targeted killings in various countries has the potential to convert the whole world into a global battleground.

Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union (ACLU), has also examined the US practice of targeted killings. He highlights the lack of transparency surrounding this policy and the pitfalls of shielding official decision-making and targeting criteria from both public scrutiny and judicial review. In response to legal challenges, the Obama administration has invoked the "states secrets" privilege to cloak itself in immunity, and has staunchly refused to respond to two Freedom of Information Act (FOIA) requests brought by the ACLU. Wessler concludes his argument by calling for a more transparent policy that may benefit from judicial review to limit the scope of executive authority in killing programs whose targets include US citizens.

Pardiss Kabriaei, a staff attorney for the Center for Constitutional Rights (CCR), explores US insistence on maintaining a secret program without review and warns of the dangers of deferring to executive assurances alone. Kabriaei illustrates the problems with this secretive, unaccountable governmental position by drawing comparatively on the deleterious experience of Guantanamo. She notes that the push by CCR and others for judicial review of Bush administration detention policies that violated US and international laws had a positive effect in curbing at least some abuses. The same, Kabriaei, could hold true for targeted killing. She cautions that “unreviewable executive authority can lead to overreaching and abuse regardless of the particular president in office and, in the context of targeted killing, the consequences are obviously irreparable."

Lennie Small, a PhD student, begins with his discussion with recent efforts to distinguish between “assassination,” which is clearly illegal, and “targeted killing,” which has become the preferred term for extra-judicial executions in the context of asymmetric wars. He takes issue with Hajjar’s analysis of “state lawfare” as a contemporary phenomenon. He argues that similar patterns of legal interpretation have been used for centuries by powerful governments to legitimate tactics of warfare and other forms of state-sanctioned violence to maintain control over rebellious populations or opposition groups. Small then describes and evaluates the role of military lawyers, specifically Israeli military lawyers, in the evolution of these concepts and their application in the current conflict in Israel/Palestine.

Lisa Hajjar responds to these contributions by reading them in relation to the 5 March speech by Eric Holder. She argues that Holder`s speech epitomizes what she characterizes as "state lawfare." His position— along with that of the Obama administration he represents — is a manifestation of what Falk terms the "imperial" or "hegemonic" force of international law. But, Hajjar argues that the kind of lawfare she favors, which Falk would call "constructive lawfare" as represented by the work of lawyers like Wessler and Kabriaei, is extremely important at this juncture, even if they (and lawyers like them) do not fully appreciate the long-term potential for litigation as a means of defending hard-fought values such as the right to life, due process, and the right not to be tortured. Ideally, if Falk`s optimistic interpretation is correct, we are entering into a period of much-needed national debate on the issue.

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A Meditation on Reciprocity and Self-Defense in Relation to Targeted Killing by Richard Falk (open in a separate window)

There is an emergent Israeli/American controversy on the lawfulness of targeted killing. Although the policy has not yet ripened into a national debate, in the United States, at least, it is beginning. Lisa Hajjar’s assessment of the “legalization” of targeted killing is compelling in a number of respects, including suggesting the analogy to the torture debate that, in many ways, defined the political and moral identity of the Bush presidency, and even the American people, in the aftermath of the 9/11 attacks. She implies, furthermore, that it was Israel that crossed the threshold of legality in response to the wave of suicide bombings that traumatized Israeli society in the 1990s. In other words, targeted killing became a tactic of choice for both the US and Israel as part of the preventive logic of counter-terrorism. The upsurge in targeted killing seems responsive to the idea that neither defensive strategies nor deterrence, nor massive retaliation are appropriate or effective against a terrorist adversary, especially if the violence is accompanied by a readiness of the perpetrator to die while carrying out the mission.

In reporting on the reliance of targeted killing and the unavailability of judicial remedies, Hajjar confronts us with the plight of rightless and vulnerable Palestinians as well as the adversaries of the US throughout the world, but she refrains from advocacy, or even explicit condemnation (although there is an implicit comparison made between the helpless victim of torture and of targeted killing). In one respect, targeted killing is worse than torture due both to its finality which deprives the target of any opportunity to tell his story, and because of the collateral damage inflicted on those unlucky innocents who happen to be in the killing zone — or are mistakenly targeted. Hajjar presents us with a legal, political, and moral challenge, but makes no effort to fashion a preferred response, possibly sensing that beyond exposing the practice, it is futile at this point to say more. I am foolish, perhaps, to offer comments on four aspects of Hajjar’s framing of targeted killing.

Lawfare: Hajjar has drawn the distinction between those who view reliance on law and courts as a positive dimension of political democracy and those who view recourse to law as a means to delegitimize states and their security policies. I would develop this distinction by viewing civil society’s recourse to litigation as “constructive lawfare,” while viewing its denigration by governments, specifically Israel and the US, as nihilistic or regressive. Such efforts to deplore recourse to law and international standards of legitimacy aim to insulate state security policy from procedures and discipline of accountability, and deprive society of an absolutely necessary check on the abuse of state power undertaken, generally, in secrecy. Constructive lawfare is one of the few means of redressing the new imbalance between state and society in the post-9/11 world, and in relation to the acute vulnerability experienced daily by a people living under occupation for decades.

Reciprocity: David Cole makes the following cogent observation  on his New York Review of Books blog (19 September 2011): “In international law, where reciprocity governs, what is lawful for the goose is lawful for the gander.” He goes further in questioning the approach taken to targeted killing by the Obama administration as being unmindful of setting a precedent that is a prelude to future regret: if we “continue to justify such practices in only the vaguest of terms, we should expect other countries to take them up — and almost certainly in ways we will not find to our liking.”

It is true that international law in many substantive domains, from diplomatic exchange to commerce, substitutes reciprocity for enforcement, and so what is claimed for oneself is granted to others. However, in the domains of national security, the use of armed force, and criminal accountability for gross crimes, international law operates according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally. It is obvious that losers in wars and leaders of some Global South countries are being held more and more accountable for crimes against humanity, especially since the establishment of the International Criminal Court. But it is equally obvious that leaders of Western countries, including Israel, enjoy de facto impunity despite their evident involvement in crimes against humanity.

The one exception, which irritates those clinging to impunity, is the haphazard efforts to detain and prosecute state officials and agents under the controversial rubric of universal jurisdiction. Hajjar’s article gives a helpful summary of the pull and push pressures associated with attempts to rely on universal jurisdiction in relation to Israeli military and political leaders whose travel carries them to countries in Western Europe that have laws on their books permitting the use of domestic courts to pursue accountability for crimes of state committed beyond normal territorial sovereignty.

Whether the targeted killing precedents being set by the US and Israel will come to haunt these countries is highly uncertain. The US used atomic bombs against Japanese cities at the end of World War II, and escaped any kind of accountability as war crimes prosecutions were limited to the wrongdoing of the Germans and Japanese, the losers in the war. This led critics of such double standards to deride the outcomes at Nuremberg and Tokyo as “victors’ justice.” In the current era, demands for targeted killing reciprocity are inevitable. Fifty countries have drones, and some deploy them for surveillance and reconnaissance missions. For example, Turkey, in fighting against Kurdish insurgents, made use of drones to carry out recent cross-border raids against PKK base areas in northern Iraq.

Surely, Iran would have strong grounds to emulate Israeli and American practice with regard to targeted killing, particularly in view of the alleged Israeli targeting and assassinating of Iranian nuclear scientists in recent years, as well as mounting repeated threats of launching an attack designed to disable Iran’s nuclear program. Such threats are direct violations of Article 2(4) of the UN Charter that categorically prohibits “the threat or use of force” except in situations of self-defense against a prior armed attack (Article 51) or as mandated by a decision of the UN Security Council. But if Iran was to avail itself of the targeted killing precedent to assassinate individuals in Israel or the United States that it deemed to be threatening or responsible for a prior attack on its citizens, such violence would be denounced as “terrorism,” and devastating forms of retaliation would almost certainly follow.

In other words, reciprocity is not likely to shape the future of targeted killing, but rather a regime of double standards that resembles what exists in relation to international criminal accountability or with respect to the possession and proliferation of nuclear weaponry.

Human Rights: It is important to introduce the perspectives of human rights into the legal debate on targeting killing, and not limit inquiry to the applicability of international humanitarian law as set forth in the Geneva Conventions of 1949 and the Geneva Protocols of 1977. Targeted killing of a non-combatant involves a challenge to the right to life, as well as constitutes a flagrant form of extra-judicial execution. UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions Philip Alston, in his influential 2010 report to the UN Human Rights Council, legally condemns targeted killing by drones on these bases, especially those taking place outside the combat zone, or as the Obama presidency puts it, far from “the hot battlefield.”

These human rights objections to targeted killing take on added force when extended to individuals who are suspected of inciting terrorist acts, as was the case with Anwar al-Awlaki, but without any disclosure of evidence of either the case against the target or a credible demonstration that such an individual posed an imminent security threat and could not be captured. As Hajjar points out, the difficulties posed by detention constraints and questionable evidence that would hold up in court exert pressure to avoid these complexities by killing the person in question. 

Self-defense: The most serious encroachment on relatively settled conceptions of the self-defense exception to the international law prohibition on the use of force is the US reliance on an extended definition of self-defense to validate targeted killing in countries outside an existing combat zone. To view the execution of individuals in Yemen or Somalia on the ground that their activities are to be assimilated to the claim of self-defense associated with the continuing response to the al-Qaeda 9/11 attacks is to undermine the attempts since 1945 to use international law to reduce the discretion available to states when it comes to the use of force. The most articulate legal argument along these lines was expressed by John Brennan, Obama’s official chief counterterrorist advisor, in his speech at the Harvard Law School a few months ago. The irony here is that, just as John Yoo shocked the conscience of liberal America by insisting that practices long assumed to be torture (most notably waterboarding) were not torture (i.e., flagrantly illegal) when employed by the US government, now the Obama administration asserts a similar position that America loves the rule of law, but whatever America wants to do is “legal” even when it flaunts the generally accepted understanding of a rule of international law. In this instance, self-defense is stretched way beyond the accepted consensus among international law specialists as most authoritatively expressed by the majority of the International Court of Justice in its Nicaragua v. United States decision of 1986. Claiming that self-defense entitles the United States to convert the entire world into a global battlefield is certainly bad law, but it is also likely to be bad policy, generating support for extremist expressions of anti-Americanism. And it is scant consolation for Mr. Brennan and other Obama officials to reassure the public that this broad legal authority is used prudently and sparingly, and with a maximum effort to avoid harm to others than those targeted.

A Word in Conclusion

Hajjar’s article provides us with the materials we require to launch a much needed debate on targeted killing. Unlike torture, which has vividness and immediacy that existentially assaults our sense of decency and dignity, the relative novelty of targeted killing, a technologically facilitated innovation in the tactics of state violence, seems more abstract and less in conflict with civilizational values. In some respects, this distinction identifies some real difference. Most legal commentators do not challenge targeted killing if confined to the combat zone, say Afghanistan, but focus their criticisms on its cross-border uses, which in the US case can be anywhere in the non-Western world. In this regard, while torture is primarily of concern as a crime against humanity, targeted killing raises issues of world order, sovereignty, the scope of warfare, and extra-judicial executions.

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Lawyering and Targeted Killing by Leonard Small  (open in a separate window)

The practice now commonly termed “targeted killing” was, before the turn of the twenty-first century, referred to as “assassination.” Both terms refer to the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle. There are, however, important legal and rhetorical differences between the two terms: Assassination is certainly illegal, whereas targeted killing, at least according to the Israeli High Court of Justice (HCJ), is neither legal nor illegal per se; the legality depends on the circumstances in which it is deployed

Assassination is part of our cultural landscape, the subject of countless fiction and non-fiction books, films, and documentaries. While some might take a certain pleasure in the fantasy of James Bond`s “licence to kill,” in reality the transgressive and deathly nature of assassination is less spectacularly heroic, and far more gruesome. Because assassination is a form of extra-judicial execution, no state ever had admitted to conducting such a policy because it flies in the face of an individual’s right to life, and the right to due process. To admit to an assassination policy would be to disregard the separation of powers that lies at the heart of democracy; the state would be playing the role of judge and executioner. 

It came, therefore, as a great surprise to the international community when, in late 2000, Israel announced that it was (and had been for some time) “liquidating” enemy Palestinians. Twelve years later, it is still difficult to assess exactly why Israel chose that moment to acknowledge the policy, especially when such killings had been denied for so long. Speaking on behalf of the Israeli government just days after the initial announcement, Daniel Reisner, former head of the International Law Branch of the Israeli Defence Force (IDF), claimed that the Second Intifada was responsible. The Intifada brought about a shift in Israeli rules of engagement which subsequently led to the declaration of the overt policy of targeted killing. “Prior to the Second Intifada,” Reisner told the press, “Israeli soldiers were actually told to wait until they were fired upon, before responding.” But the change in “circumstances” had necessitated that “Israeli soldiers no longer are required to wait until they are actually shot at before they respond.” The Second Intifada was a game-changer, according to former Israeli Deputy Defense Minister Ephraim Sneh: “For sure, it is a signal. If the game is a guerrilla war, we are the champions of the world,” he told Associated Press.  

But perhaps more important than the announcement of the targeted killing policy was the fact that behind the scenes its architects had prepared what they regarded to be a compelling defense and justification. Israeli officials felt confident enough that targeted killings were so imperative to the nation’s security that they were, in fact, legal and legitimate. Because assassination is illegal, the crucial concern for Israel was to find a way to eliminate enemies without appearing to contravene the law. “Extra-judicial” killing had to be brought within the pale of law. This was no small task and involved nothing less than the “legalization” of assassination. 

Israel`s ingenuity was both legalistic and rhetorical, and it is here that we witness the crucial difference between the terms “assassination” and “targeted killing.” A veritable legal and political armature underscored the move toward an overt assassination program. The CIA realized the essence of the problem as early as 1954, which is why it has always (notwithstanding some recent exceptions vis-a-vis the not-so-secret drone missions in Pakistan, Yemen and elsewhere) opted to keep covert missions covert. The training manual, A Study of Assassination, distributed to agents and operatives at the time of the agency`s 1954 coup in Guatemala, noted that “No assassination instructions should ever be written or recorded,” adding, “Assassination can seldom be employed with a clear conscience. Persons who are morally squeamish should not attempt it.” The problem was that assassination was an unsavoury affair, particularly unpalatable for morally squeamish publics as well. For that reason, the practice was difficult to justify.

The first thing that Israeli government lawyers had to do, therefore, was to change the language and terminology. How can assassination be made to sound legal and morally defensible? Israel immediately stopped using the word “assassination,” and dropped all terms which carry a negative and illegal connotation. In 2001, one year into the officially declared policy, Attorney General Elyakim Rubinstein pointed out that the term “liquidation” damages Israel`s image and proposed that it was better to use the phrase “targeted killing” to describe the policy. Thus, a new, more neutral, less offensive term was coined. The change in terminology is immensely significant because it changes the act of killing from one that is always-already illegal to one that is, if not persuasively, then at least plausibly, legal and permissible.

Lawfare: An Historical Perspective

This legal ingenuity of Israel is captured by what Lisa Hajjar calls “state lawfare,” and as she rightly points out, targeted killing is but the most recent manifestation of Israel`s instrumentalization of the law. Israel paved the way for targeted killing, and has set legal precedent and custom which has proved very useful and expedient in rationalizing the Obama administration`s drone wars. However, Israel did not pioneer state lawfare, as suggested by Hajjar; various forms of it have been around for centuries, rather than decades. Indeed, in Palestine, the very same space as these targeted killings are taking place today, the Ottomans issued a series of laws, for example the “dead land” (or mewat) laws, that were every bit as violent as Israel`s contemporary lawfare. In fact, there is historical evidence to suggest that international law was founded to legitimize the violence of colonial powers against their subjugated and colonized people. 

Post-colonial scholars such as Antony Angie argue that the law not only legitimized colonial exploitation, but also developed many mechanisms to prevent colonial reparations. Lawfare has a much longer history than is suggested by Hajjar and others; we find instances of it -- or something very similar to it -- in Francisco de Vitoria`s justification for Spanish conquest in the Americas in the1500s, just as we find it at the heart of British colonial rule around the world in the nineteenth and twentieth centuries, including the British Mandate in Palestine which brought the modern conflict between Israel and Palestine into being. These acts were justified by law and mandate; they were acts of war (or worse), conducted not only through, but also in the name of law. If lawfare is the use of law as a weapon of war, then do these historical examples not set lawfare precedents?

Historicizing lawfare is important because there is a tendency to overplay the newness associated with contemporary asymmetric wars, especially in the wake of the Bush administration’s war on the rule of law vis-à-vis Guantánamo, torture and extra-judicial rendition. The focus on the recent, as well the obsession with the US and Israel, belies an important historical fact concerning the relationship between law and war. Law is not a recent addition to the arsenal of war. Clausewitz taught us this much. The Lieber code of 1863 permitted all kinds of violence, as did the Hague Convention of 1907, the Geneva Conventions of 1949 and Additional Protocols of 1977 and 2005. International humanitarian law (IHL), the laws which regulate armed conflict and war, do not prohibit killing but rather (and much more modestly) prescribe certain conditions for its execution. Law participates in violence, and has done so for quite some time, and certainly predates Israel`s present lawfare campaign. 

All this matters because, for Hajjar, there is a form of lawfare that is ultimately a good thing. While I do share her optimism that international legal fora can be leveraged to challenge lethal and inhumane policies, I would caution that a much more careful approach to lawfare is required. If, as I have suggested, lawfare is not new, and is not limited to Israel or the US, those advocates of appropriating lawfare are up against a broader and more complex “enemy” than they may have imagined. They must also be aware that by engaging in lawfare, they are tacitly agreeing to play by the rules set by military calculations. In armed conflict, law has to strike a balance between what is called “military necessity” and humanitarian consideration. These are the great weights at either end of war`s colossal scales, and often the balance favors the military. When the language of law is used — i.e., “proportionality,” “distinction,” “necessity” -- killing is not prohibited and it is accepted that, in some circumstances, some innocent people will die and will do so in a manner that is entirely consistent with the relevant law. And so while some lawfare practitioners might distinguish what they do from what traditional humanitarians like the International Committee of the Red Cross (ICRC) do, the question remains: at what expense do they use the language of law and lawfare at all? This question goes back to the above point about the relationship between law and violence. The problem is much greater than Israeli and US abuse of the law. The problem might be the law itself, and the legitimacy it confers to actions that would otherwise be thought illegal and immoral. 

To suggest that Israel pioneered state lawfare is, therefore, to miss a potentially important critique about the dangerous potential within the law itself. First, it belies the connections between what Israel is doing today and what other colonial powers have done before it. In the same way that Israel paved the way to construct a legal rationale for this practice that the US has also employed, colonial regimes past and present have gone a long way toward legitimizing and providing the tools for Israel`s lawfare over the last sixty years. These connections are surely worth making. Second, and what I turn our attention to for the remainder of this piece, it elides those parts of Israeli lawfare which are genuinely new and innovative, and which require careful consideration. Our attention is fixed on the general “newness” of Israeli lawfare, when in reality it is, as one Israeli scholar put it, “old wine in a new bottle.” 

Advocating Targeted Killing: A Lawyer’s View

One of the more recent additions to the phenomenon of lawfare is the direct involvement of military lawyers - Judge Advocate Generals (JAGs). The Israeli Military Advocate General (MAG) Corps (formerly the Legal Services Corps) has existed since Israel and the IDF were founded in 1948. Its functions are many, but broadly it is responsible for enforcing the rule of law throughout the military. In this manner, and as Hajjar points out elsewhere in relation to Meir Shamgar, the role of the MAG -- the title given to the head of the Corps -- includes “preparatory work,” such as writing legal manuals and formulating or revising the rules of engagement.  

While the MAG has always played an integral and even intrinsic role in Israeli military affairs, JAGs are now directly involved in targeting decisions. They give direct legal permission to the IDF as to whom, and how many, they can and cannot kill based on the intelligence that they are provided. When targeted killing first appeared as acknowledged state policy in 2000, there was a big debate in the IDF about what role the JAGs should play in the process of “executing targets.” Major General Ilan Schiff, from the military court of appeals, proposed that it would be best if a legal expert were to review the list of terror suspects who are candidates for assassination and authorize specific killings before they are carried out. However, a high-ranking IDF officer told Ha`aretz that he disagrees with Schiff`s position, saying that a legal authority does not need to give the green light. Lawyers should stop getting in the way of important security issues. That debate is now settled, and JAGs do indeed have to approve each and every strike.

Amos Guiora is a former JAG who served as Legal Advisor to the Gaza Strip from 1994 to 1997. In this capacity, he was at the seat of “operational counterterrorism operations,” which meant that “when a commander was faced with the decision -- yes or no to conduct a targeted killing -- the guy who would receive those God-awful phone calls at 3 a.m. in the morning” was Guoira. In a typical targeted killing scenario, the JAG will ask the commander a series of questions to discern whether the suspect in question qualifies as a “legitimate military target.” A criteria-based approach, akin to a checklist, prevents situations of arbitrary killing, Guoira attests. Otherwise, “what you are really doing is putting your finger in the air [to see] which way is the wind blowing.” How imminent is the threat? What is the collateral damage estimate? How sure is the commander that they have the right guy, and have they exhausted other, non-lethal means of intercepting him? The situation can be “time sensitive,” which means that decisions have to be made very quickly, often in a matter of minutes. “Is he killable?” the JAG asks himself. The IDF commander does not have to follow the advice of the JAG and the ultimate decision remains the commander’s. However, as Guoira points out, “Those of us who have been in the business know the ropes and how the game works, and if I say no the guy is not killed. If I say yes the guy is killed.” 

The JAG’s decision is sovereign: to spare life or take it away. In the above scenario Guoira and those in his position hold the divine decision to let live. On one occasion, Guoira was convinced that the threat to the Israeli body-politic was high enough to warrant execution, but he believed the IDF had the wrong guy. “Don`t shoot,” he told the commander, and returned to his wife in bed. The commander called the area commander and told him to call off the strike. The man in blue jeans walked on, unaware that his life had been spared. Since targeted killing became openly declared state policy, 427 other Palestinians have not been so lucky.

JAGs perform a series of difficult tasks, which we might read in two different ways. First, they bring a form of legal reasoning to what is often thought of as the lawless space of war. Their job is to keep militaries in check, to make sure they do not overstep the mark. They oversee what has been referred to as the “humanization of war,” and indeed this is what IHL is all about. The second reading is more critical: it sees the relationship between war and law as instrumental. War needs law, not to tame it but to unleash it. Law confers legitimacy. It is in the space where law and legitimacy meet that the work of the JAGs becomes so powerful. The involvement of lawyers along every step of military operations, right down to the moments before a strike, produces a discourse of legality that is difficult to argue against. The JAGs are an extension of an already pervasive legal apparatus in the IDF, and they have the effect of making the whole process appear legal and legitimate. If there is ever any mistake or breach of the law, the JAGs and the whole legal process are there to exculpate the IDF. As the Saleh Shehadah case demonstrates, this is exactly what happens.

Into the Abyss

Over the last decade, assassination has become a normal part of Israeli and US military doctrine. When reading the news of this or that strike in Gaza or Pakistan, it is sometimes easy to forget that the lawless, murky act of assassination has transformed into one of the key methods used to fight “our” wars. To most, this was unthinkable just ten years ago. A public targeted killing policy was a radical idea which even the Bush administration and Israel`s other closest allies opposed. The lawyers of war -- the JAGs and the MAGs -- have been instrumental in bringing about this radical shift. Customary international law is a slippery slope, and given how much ground the military and its lawyers have already taken, I wonder whether law and lawfare are our most useful weapons and whether we might not think seriously about other alternatives, be they political, ethical or otherwise. 

So that we are not left with any doubt as to the magnitude of what was being imagined by Israel, I leave the final words to Daniel Reisner, the man who perhaps more than anyone else should be credited with the very invention of modern assassination:

We [the international legal division] defended policy that is on the edge." The army says, “Here is a magic formula, is it within the bounds of what is possible? To which I will reply, I am ready to try to defend it, but I am not sure I will succeed. If it is white I will allow it, if it is black I will prohibit it, but in cases of grey I will be part of the dilemma: I do not stop at gray [...] We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy.

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The Need for Judicial Review of US Targeted Killing Practices by Pardiss Kebriaei  (open in a separate window)

In a speech at Yale Law School in February 2012, the US Defense Department’s General Counsel, Jeh Johnson, outlined several legal principles that form the basis for the Obama Administration’s national security policy against al-Qaeda and “associated forces.” Echoing the position the administration has consistently argued in court in cases raising national security issues, he said that decisions taken as part of the administration’s targeted killing policy are not appropriate for judicial review. Johnson assured the students that such decisions are debated and scrutinized by lawyers within the executive branch, but his position was that the courts should not and need not get involved.

That position is clearly the antithesis of what we advocated in Al-Aulaqi v. Obama, a lawsuit brought by the Center for Constitutional Rights (CCR) and the American Civil Liberties Union (ACLU) challenging targeted killings by US forces outside zones of recognized armed conflict, specifically, the targeting of a US citizen in Yemen. In bringing Al-Aulaqi, our contention was that when it comes to a US citizen who is being targeted for killing by his own government on the basis of accusations alone that he is a member of a terrorist organization, who is at risk of being arbitrarily deprived of his life under the Due Process Clause of the Fifth Amendment, and with respect to whom there is no question that the protections of the US Constitution apply— that in at least such a case, there must be a role for the courts.

Our substantive legal argument was that any lethal action by the US in Yemen against Anwar Al-Aulaqi, whom the US accuses of being a member of al-Qaeda in the Arabian Peninsula (AQAP), must be governed by the Constitution and international human rights law, which permit lethal force without due process only where there is an imminent threat of deadly harm and such force is a last resort. That usual constitutional constraint on the government’s actions was not displaced by the exceptional rules of war for two reasons: The hostilities in Yemen between the US and AQAP do not rise to the level of an armed conflict, and even assuming the existence of an armed conflict between the US, al-Qaeda and undefined “associated forces” that extends everywhere – or, as the administration puts it, in Afghanistan and “elsewhere” – AQAP is not such an associated force and thus does not come within that conflict.

Based on the information reported about Al-Aulaqi’s targeting – that he had been added to government “kill” lists on which individuals remained for months at a time, and that he had been the target of prior unsuccessful US strikes and was being actively pursued – we alleged that there was a standing order for his killing that called into question whether the standards of imminence and last resort were being applied. Our request of the court was not to engage in real-time assessment of the government’s targeting decisions, but to determine the legal standard that should govern its actions and to enjoin the government from killing Al-Aulaqi outside of those parameters.

The administration did not respond to the substance of our arguments, but argued instead that the court should not consider the case at all. Obama Department of Justice attorneys echoed many of the arguments their Bush administration predecessors had made in seeking to prevent judicial review of allegations of arbitrary detention, extraordinary rendition, and torture since 9/11. The government’s arguments for dismissal included that our case raised national security questions – “political questions” – best left to the executive branch, and that litigation of the case would also risk disclosure of sensitive national security information – “state secrets.”

The district court ultimately dismissed the case on political question and standing grounds, holding that our client, Al-Aulaqi’s father, was not the appropriate person to bring the case because we had not shown that his son could not act for himself, despite being under continuous threat of death by drone. In its political question holding, the district court acknowledged the “somewhat unsettling nature” of its conclusion “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas … is judicially unreviewable,” and that no US court had ever refused to hear a citizen’s claim that his personal constitutional rights have been violated as a result of US government action taken abroad on political question grounds.

Indeed, in cases the Supreme Court has considered over the past decade, where the executive branch claimed the authority to detain US and foreign citizens alike as “enemy combatants” without charge, and deny or restrict their access to the courts, the Court repeatedly rejected the notion that it should have no role or only a very circumscribed one. In the Court’s 2004 opinion in Hamdi v. Rumsfeld, for example, in response to the government’s argument that anything beyond limited judicial review would raise profound separation of powers concerns and interfere with vital military objectives in wartime, a plurality of the Court

Reject[ed] the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances,” and held that even in times of conflict, the Constitution “most assuredly envisions a role for all three branches [of government] when individual liberties are at stake.

 

Implicit in the Obama administration’s position against judicial review of its targeting practices is not only that such review is inappropriate, but also that it is unnecessary. As Jeh Johnson assured the students at Yale, lawyers within the executive branch subject the administration’s national security legal positions to great scrutiny. But the necessity of internal diligence notwithstanding, resting on executive assurances alone has led to egregious wrongs in the past.

Guantanamo is an apt example. From the first days the prison opened in January 2002, government officials issued statements that the men being detained at the US military base, who stumbled off planes in shackles and hoods, were all dangerous members of al-Qaeda and the Taliban who had been captured fighting in Afghanistan and were intent on doing harm to the US. From 2002 to 2004, the US held over 750 men on the basis of its own secret information and secret determinations. We did not know the names or nationalities of those being held, for what reasons or on what legal basis.

In the first case to challenge the detentions, Rasul v. Bush, the government argued for the courts to stay out: In the global armed conflict against al-Qaeda and its supporters, contending that judicial review would put the courts “in the unprecedented position of micro-managing the Executive’s handling of captured enemy combatants” and, in any case, the absence of review did not mean the detainees were without rights or that their detentions were without congressional and public scrutiny.

The detainees ultimately prevailed in Rasul, which opened the government’s detention policy at Guantanamo to real scrutiny. Years more litigation and scrutiny exposed that the Bush administration’s claim of detention authority was overbroad, its internal processes for status determinations were woefully inadequate and, ultimately, that many men were wrongfully held and abused for many years. Notwithstanding debates about whether or to what extent this administration’s policies differ from the former, unreviewable executive authority can lead to overreaching and abuse regardless of the particular president in office. In the context of targeted killing, the consequences are obviously irreparable.

Alongside the lack of judicial review thus far, other meaningful checks on the administration’s targeted killing operations are also lacking. For one, there are gaps in congressional oversight. The targeted killings with which CCR was concerned in Al-Aulaqi – those occurring outside of recognized war zones – are not carried out by conventional US military forces, but by the CIA and a clandestine unit of the military known as the Joint Special Operations Command (JSOC). Reporting of information about CIA and JSOC operations is generally limited to Intelligence and Armed Services Committees in the House of Representatives and the Senate, and sometimes only to their leaders. Those who are briefed on these operations are prohibited from discussing what they have learned with those who lack the requisite security clearance. Thus, as the Washington Post reported in December 2011, “the vast majority of lawmakers receive scant information about the administration’s drone program.” Moreover, because CIA and JSOC operations are reported to separate committees, “no committee has a complete, unobstructed view” of the program. JSOC, which according to some experts has more of a central role than the CIA in counter-terrorism efforts against al-Qaeda, has less oversight of its activities than the CIA. While some briefing to the Armed Services Committees does reportedly occur, there is nothing analogous to the reporting required of CIA operations to the Intelligence Committees.

The public has also been kept largely in the dark about the targeted killings that were our concern in Al-Aulaqi. One of the most egregious examples of the lack of transparency by the US is an attack in Yemen in December 2009, during a period in which the government insisted that its only role in that country was limited to training Yemeni military forces. On 17 December 2009, a cruise missile struck the village of al-Majalah, killing forty-one members of two families, including twenty-one children. The Yemeni government claimed responsibility. US news sources reported experts who criticized Yemen’s “heavy-handed” methods. The Pentagon refused to comment. A year later, reported leaks revealed that it was the US, not the Yemeni government, that had conducted the strike, and that US and Yemeni officials secretly had agreed that the Yemenis would publicly to take responsibility for this and other US military strikes in the country.

Such deniability of targeted killings by the US in Yemen and Pakistan is less plausible now, but the US still does not officially acknowledge these strikes, let alone provide any data that would allow the public to understand the scope and impact of the killings or their compliance with the law. Ironically, while the government will not officially confirm or deny responsibility for its strikes, it has seen it prudent to confirm that they have resulted in very few civilian casualties. In June 2011, John Brennan claimed that “there ha[dn’t] been a single collateral death” resulting from CIA drone strikes in Pakistan for almost a year. Juxtaposed with even the more conservative figures of non-governmental sources documenting the deaths resulting from these strikes, the government’s claims raise serious questions that must be answered, including about its criteria for defining targets.

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The Secret Bureaucracy of Targeted Killing by Nathan Freed Wessler  (open in separate window) (anchor)

Three US citizens were killed in Yemen in 2011 by drone strikes carried out under the auspices of the government’s targeted killing program. They were neither charged with any crime nor brought before a judge. The killings were carried out by the executive branch acting alone, with no oversight from the courts and no public presentation of evidence. At least two more US citizens are reportedly on government “kill lists,” along with numerous alleged terrorism suspects of other nationalities. As long as they remain on the lists, they, too, can be killed with no warning, no meaningful due process, and no oversight.

The US government’s claim of authority to carry out targeted killings around the world, far from active battlefields and without external checks, is momentous, but there is little public information about the details of its targeted killing program. Much of what is available consists of anonymous leaks to the press by government officials. Recently, President Obama publicly acknowledged the targeted killing program and a few details about it. Yet when faced with calls for further transparency, the US government continues to refuse to officially disclose details about the policy of targeted killings abroad.

In her essay titled “Lawfare and Targeted Killing,” Lisa Hajjar explains that one aspect of the US government’s efforts to ensure “legal immunity” for its targeted killing program “derives from the clandestine nature of these operations and the invocation of states secrets.” The government has deployed this reasoning as a shield against litigation challenging the targeted killing program in two contexts. First, the government invoked the “state secrets privilege,” a doctrine designed to protect classified information, to dismiss a lawsuit brought by the American Civil Liberties Union (ACLU) and Center for Constitutional Rights (CCR) asking a court to place limits on the government’s authority to target and kill US citizen Anwar al-Aulaqi. Second, the government used similar reasoning to oppose two Freedom of Information Act (FOIA) lawsuits brought by the ACLU seeking information about the scope, legal rationale, and factual basis of the targeted killing program. Although the government asserts that its targeted killing program remains “clandestine,” that claim is belied by the repeated official statements lauding the targeted killing program in public.

Obama’s Public Acknowledgment

On 30 January 2012, President Obama took questions on a live internet video forum organized by Google+ and YouTube. He acknowledged that the US carries out targeted killings using drones in Pakistan, that it targets persons who are on a list of “active terrorists,” and that it goes after “al-Qaeda suspects.” He also asserted that the program is “kept on a very tight leash” and claimed that “drones have not caused a huge number of civilian casualties.” Other US government officials have also made public remarks about aspects of the targeted killing program. In a January appearance on national television, for example, Secretary of Defense Leon Panetta acknowledged that the US can and does carry out targeted killings of US citizens pursuant to the president’s authorization. In February, Defense Department general counsel Jeh Johnson asserted in a public speech that the government can pursue suspected terrorists “without a geographic limitation” and that “US citizens do not enjoy immunity” from targeted killing. Last June, President Obama’s counter-terrorism advisor, John Brennan, implausibly asserted that the US targeted killing program had not caused “a single collateral death” in the preceding year. Just this week, Attorney General Eric Holder outlined the legal authority under which the government claims it can target and kill US citizens overseas.

In one sense, the president’s discussion of targeted killing was unremarkable because it provided no new information. The press has long reported on the CIA’s and US military’s targeted killing programs, often based on statements of “anonymous” government officials, and the publicly reported information far outstrips the tidbits disclosed by the president and other administration officials. The press has reported, for example, that the US has carried out targeted killings using drones in a number of countries, including Afghanistan, Pakistan, Yemen, and Somalia. We know that the CIA and the military’s Joint Special Operations Command (JSOC) maintain separate lists of people who the agencies have authority to hunt down and kill. Reports have described the secret bureaucratic process by which names are placed on the lists. And several organizations maintain running tallies of the number and location of drone strikes and the numbers of civilians killed. The US government’s targeted killing program is hardly a secret.

Yet, the President’s statement marked the first time he officially acknowledged, in an attributed statement, that the CIA carries out targeted killings by drone in Pakistan and that the agency maintains a kill list for that purpose. When directly confronted, the government has stubbornly maintained the fiction that the very existence of the CIA’s targeted killing program is a state secret and that basic information about the military’s program cannot be revealed.  

Public Killings, “Secret” Program

On 30 September 2011, Anwar al-Aulaqi, a US citizen who reportedly had been placed on the government’s kill lists, was executed in a joint CIA-JSOC drone strike in Yemen.  Another US citizen, Samir Khan, died in the same attack. Two weeks later, al-Aulaqi’s 16-year-old son, Abdulrahman al-Aulaqi — also a US citizen — and his seventeen-year-old Yemeni cousin were killed in a military drone strike elsewhere in Yemen. Although the president and other members of the administration claimed credit for their success in killing al-Aulaqi, they have refused thus far to provide an account of the legal basis on which they assert the power to kill US citizens suspected of involvement in terrorism. They also have failed to present any evidence justifying al-Aulaqi’s targeting, except to vaguely assert that he “took the lead in planning and directing efforts to murder innocent Americans.”

Although the Obama administration has been eager to use the death of al-Aulaqi and its broader targeted killing program to bolster its counterterrorism credentials, the US government has responded to litigation seeking accountability and transparency with broad claims of secrecy. In early 2010, the ACLU filed a FOIA request seeking disclosure of the legal basis for the government’s use of drones to conduct targeted killings overseas, as well as data regarding the number of civilians and non-civilians killed in the strikes. In response, the CIA flatly refused to confirm or deny the existence or nonexistence of any such records, claiming that even the fact that a targeted killing program exists cannot be acknowledged.  

Later in 2010, the ACLU and CCR filed a lawsuit on behalf of al-Aulaqi’s father asking the court to force the US government to reveal the criteria it used to place al-Aulaqi on the kill lists and to prevent the government from using lethal force away from an active battlefield except in situations where a person poses an imminent or immediate threat of injury to others, as required by US and international law. To date, the government has neither explained whether it abides by this imminence standard nor offered evidence that al-Aulaqi actually posed an imminent threat. In response to the lawsuit, the government asserted the state secrets privilege, claiming that information about the targeted killing program was so secret that the whole lawsuit must be dismissed to avoid risking disclosure of classified information. The court dismissed the case on separate national security-related jurisdictional grounds.

Shortly after al-Aulaqi was killed, the New York Times published a detailed description, based on information from those ubiquitous anonymous government officials, of a secret memorandum by the Department of Justice Office of Legal Counsel (OLC) providing the US government’s legal justifications for targeting al-Aulaqi. The story resulted in calls from across the political spectrum to release the actual memo or officially and publicly explain its legal reasoning. When the government failed to make public its legal arguments for the targeted killings of its own citizens, the ACLU submitted a new FOIA request seeking disclosure of the OLC memo, information about the process by which the administration adds Americans to kill lists, the evidentiary basis for targeting al-Aulaqi, and the factual basis for the killings of the other two US citizens. After the OLC and CIA baldly refused to confirm or deny whether any such memo or other relevant document even exists, the ACLU filed suit. (The Times also filed a FOIA lawsuit seeking the OLC memo.) Both lawsuits are currently pending in US federal courts.

The Need for Transparency

The US government has claimed a chilling and far-reaching power to kill US citizens and others far from any battlefield, without judicial oversight, and in secret. The executive branch has developed a secret bureaucracy of killing, complete with a secret government panel that identifies names of suspected terrorists, secret lists of people to be targeted for death, secret legal opinions, and secret presidential authorizations to kill. This program deserves, and requires, public oversight and debate.  

As Hajjar points out, however, the government has not responded to calls for accountability and transparency by publicly justifying the legality of the targeted killing program or defending it in court. Rather, consistent with the model of “state lawfare” she describes, it has aggressively asserted that accountability mechanisms are completely inapplicable. To this end, Defense Department general counsel Jeh Johnson recently stated that courts should have no role in reviewing the legality of “targeting decisions” and the “application of lethal force” in the targeted killing context. Attorney General Holder elaborated on this position on 5 March when he argued that courts should not be allowed to enforce the constitutional right to due process for US citizens subject to targeted killing. In the government’s view, the secret deliberations of executive branch officials should be sufficient. 

In an open and democratic society, it is not enough for the government merely to assure the public that it is acting within the law when it seeks to kill. Only when the government is compelled to face real transparency can the legality, legitimacy, and wisdom of the targeted killing program truly be put to the test. Courts have thus far accepted the US government’s claims of official secrecy to insulate itself from criticism, but the government’s selective leaks and acknowledgments about the targeted killing program have reached a critical mass. Courts should no longer accept the cynical claim that the very existence of a targeted killing program continues to be secret, or that judges should have no role in holding the government to account.

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Lawfare and Targeted Killing: A Response by Lisa Hajjar  (open in separate window)

The speech that Attorney General Eric Holder delivered on 5 March 2012 in which he outlined the Obama administration’s position on the legality of the targeted killing program exemplifies what I have described as “state lawfare.” One aspect of state lawfare, I argue, is the effort by officials “to frame otherwise clearly illegal practices as legal by contending that the laws that would prohibit them are inapplicable.” Holder evinces a heightened degree of self-consciousness about what he is doing in this regard when he states:

Some have called such operations ‘assassinations.’ They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings…[T]he U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes. 

 

Lennie Small’s contribution to this roundtable begins with this very point. The relatively recent articulation of a distinction between “assassination” and “targeted killing,” Small argues, is legal and rhetorical rather than tactical, since both refer to “the lethal use of force in a surprise attack against an enemy or foe, whether by a sniper, a surgical-precision drone strike, or a magnetic bomb placed on a vehicle.” Like state lawfare-esque assertions by Bush administration officials and lawyers that interrogation tactics such as waterboarding are not torture (i.e., criminal offenses) if done for the worthy purpose of “keeping Americans safe,” Holder is now on the record arguing that extra-judicial executions are not assassinations (i.e., unlawful) if employed “to defend the United States through the appropriate and lawful use of lethal force.”

The concepts of “appropriate” and “lawful” are not nearly as seamless or complimentary as Holder would suggest. In fact, they raise two entirely different sets of issues, coming together only (and retrospectively) in the death-by-surprise of suspected enemies who are killed at times when they are not actively engaged in armed combat or any other form of active violence or aggression — that is, at times when they do not pose an imminent threat. Of course, it can be argued that “enemies” are dangerous even when they are off duty, lying in bed, drinking in a café, driving home, and so on. Carl Schmitt reminds us that in war, the “enemy” is he who poses an existential threat to the “friend.” Two years ago, I would not have pegged Holder — or Obama — as a Schmittian. But I digress. 

What, according to Holder (and the administration he serves and for which he speaks), constitutes “appropriate” use of lethal force? This includes “considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.” Such considerations presume the existence of accurate intelligence to trigger the authorization for lethal force. Yet Holder says nothing about the inaccurate intelligence that has triggered fatal strikes against innocents. Indeed, there are no mistakes referenced in his speech. 

As for the “lawful” nature of US targeted killings, Holder cites the canonic laws of war — the Geneva Conventions — to assert that “any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.” Those four principles are “necessity” (the requirement that the target has a definite military value); “distinction” (the imperative to distinguish between those who legally can be targeted intentionally — “combatants, civilians directly participating in hostilities, and military objectives” — and those whose deaths are accidental or, in the discourse of war, collateral damage); “proportionality” (a calculated but vague and subjective requirement that “the anticipated collateral damage must not be excessive in relation to the anticipated military advantage”); and “humanity” (described by Holder as the requirement to “use weapons that will not inflict unnecessary suffering”). The subject of “unnecessary suffering” goes unnamed and unmourned in the speech. 

There is a more positive way to interpret Holder’s speech, but doing so requires a more hopeful disposition than I possess. The very fact that he publicly acknowledged a policy that has been largely shrouded in secrecy and buttressed by denials is a hopeful sign, if for no other reason than the possibility of signaling what Richard Falk suggests: that the time is ripening for a national debate. Yet my dear, optimistic friend Falk — who resiliently believes that people armed with good information can be inspired to do good things, and who accurately chides me for “refraining from advocacy” in the tenor I adopt in criticizing the targeted killing policy — offers a metanarrative within which one can read Holder’s speech and the Obama administration’s policy: “[I]n the domains of national security, the use of armed force, and criminal accountability for gross crimes, international law operates according to an imperial logic, or at best a hegemonic logic, in which equals are not treated equally.” Holder’s speech is an articulation of the logic of American power and geopolitical realities; there is no referent other than the US government, its laws, and American public opinion. 

I thought about that “imperial” or “hegemonic” logic as I read and reread the text of Holder’s speech, wondering who he was trying to persuade. Clearly, he had several audiences in mind, but all of them American. To the hawks (chicken and other), he offered a reassuring acknowledgment that “[w]e are a nation at war.” He offered bland reassurances to civil libertarians, too: “But just as surely as we are a nation at war, we also are a nation of laws and values.” To the military commission enthusiasts in Congress who have worked to circumscribe the Obama administration’s executive discretion on where and how to prosecute suspects, he chastised that “far too many choose to ignore [that] the previous administration consistently relied on criminal prosecutions in federal court to bring terrorists to justice.” To the Islamophobes, he nourished their desire for harsh treatment of (Islamic) enemies foreign and domestic, rationalizing and owning up to current policies of surveillance racial profiling at home and targeted killing abroad by stating that “there are people currently plotting to murder Americans, who reside in distant countries as well as within our own borders.”

What about those Americans, like Nathan Freed Wessler and Pardiss Kebriaei (and their colleagues at the ACLU and CCR), who are advocates for the international rule of international law? Falk has suggested describing what they and their like-minded colleagues do as constructive lawfare, as distinguished from state lawfare. Personally, I prefer to appropriate and monopolize the term “lawfare” (without the qualifier “constructive”), imbuing it with meaning to refer to — indeed, to colonize the concept in order to make positive reference to — “litigation to challenge military and security policies and practices; and efforts to sue or prosecute state agents, government-funded contractors, and corporations who are alleged to have engaged in or abetted serious violations of law in the conduct of war.” 

Wessler and Kebriaei are actual, literal, invested advocates for the rule of law. As they explain in their contributions to this roundtable, they have litigated cases and issues connected with the targeted killing policy. They are humble, focused, attentive to precedent and hopeful about the principle of judicial review. But make no mistake, the battle for the future of law and war, national security and human rights will be waged — at least in part — by lawyers (like them) in courts, here and abroad. Lawyers, I have found, are not the best assessors of their own contributions to larger struggles. 

Schooled in the adversarial model, lawyers tend to “think like lawyers” in terms of “wins” and “losses” as determined by court rulings. But — and here is why I love “lawfare” as I interpret it (Falk would characterize what I love as “constructive lawfare”) — the value of litigation to protect or expand deep and hard-fought principles of international/global value (e.g., the right not to be tortured, the right to life and due process) cannot be assessed definitively by the immediate outcomes of cases. The brand of lawfare that Wessler and Kebriaei represent will be important in the future, perhaps even more than at present, as a record of resistance to inhumanity and dehumanization. Like the long struggles against slavery and de jure racism, those who fight these fights today will be remembered tomorrow for being on the right side of history. And sometimes, when you fight you win.

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Roundtable on Palestinian Diaspora and Representation

[The following series of articles is part of a Jadaliyya roundtable on “Palestinian Diaspora and Representation.” It features contributions by Naseer Aruri, Seif Dana, Karma Nabulsi, and Sherene Seikaly. The roundtable was first published in May 2011.]

Part I: Palestinians Organizing in Diaspora 

Part II: A Positive Model or Doomed for Failure?

Part III: Whither Palestinian Resistance? 

 

Part I: Palestinians Organizing in Diaspora [open in separate window

1. Palestinians are not unique for organizing themselves in diaspora. The Tamils of Sri Lanka have recently elected their transnational government and other ther ethnic polities like indigenous communities in Latin America, including the Mayans of Zapata, have organized themselves within their homelands, as opposed to without. How can the Palestinian national body be contextualized in a legacy of diasporic politics and calls for self-determination more generally? Can a “people” be adequately represented in diaspora? What lessons can be drawn from other case studies for organizing Palestinians in diaspora and inversely, what lessons can be drawn from the Palestinian experience?
 

Naseer Aruri

Given the relationship between the Palestinian body politic and its adversary, we need to raise a few questions relating to the settler colonialist nature of Zionism and the state of Israel. First, when did settler colonialism emerge as a framework of analysis? How has the PLO’s shift in strategy from liberation through resistance to independence through negotiations and statism been reflected in the shift in analytical and strategic paradigms on Palestine, Palestinian liberation, and modes of resistance and representation? And  how did the movement strategize its analytical framework following the loss of land as a result of Zionist settler colonialism, and how this framework was intellectually neglected and politically abandoned, and lost with the passing of time. For us, Palestinians, who are going through a second Nakba, today is yesterday.
 

Seif Dana

True, every diaspora experience is unique. The Palestinian experience of living and experiencing the diaspora have been shaped by a variety of factors that need to be highlighted to comprehend the experience and drew necessary lessons for future course. 

1-    Colonial Zionism

The expulsion of the Palestinian Arabs that led to the formation of many Palestinian communities in exile has been critical for the formation and transformation of the specific Zionist colonial genre. The pure settlement-colony, which is distinguished from other colonies of settlement (mixed settlement, plantation, and ethnic plantation) in its conquering of both land and labor (a condition that ineluctably shapes identity and brings about the erasure and negation of the other) dictated from the start the expulsion of Palestinians.

The shift from the “ethnic plantation colony,” the form Zionist colonization took at the beginning to the pure-settlement colony, which has characterized the Israeli state and nation building since 1904 with the second wave of Jewish European “immigration” had serious implications and led to the Nakba (for details see Shafir 1989. For the various colonial settlements types see Peterburge 2007). 

The ethnic plantation colony is based on land control, similar to the mixed settlement and plantation colony, yet “unlike the plantation colony, it employed local rather than imported labor, [and] in distinction to the miscegenation prevalent in the mixed colony, it possessed a full-blown European national identity and opposed ethnic mixture” (Shafir 1989: 9).

The pure settlement colony represents the underlying structural arrangements that have shaped every aspect of the colonial experience since the second wave of Jewish-European settlement in Palestine in 1904. Fredrickson explains that “the pure form, in which European settlers exterminated or pushed aside the indigenous peoples, developed an economy based on white labor, and were thus able in the long run to regain the sense of cultural or ethnic homogeneity identified with a European conception of nationality” (1988: 220-21). Thus, the difference between the ethnic plantation colony and the pure settlement colony resides in labor; in Palestine, this meant a shift from Arab to Jewish labor.

As such, pure settlement colonies involve the conquering not only of land, but of labor as well, excluding the natives from the economy. These colonies, therefore, are “inherently genocidal” (Churchill 1997), rest on the principle of “replacing a nation with another nation and a culture with another culture by means of extermination” (Akash 2002; 2004), and have the “purest form of racist impulse” (Fredrickson 1988: 221).

Colonial Zionism prepared the foundations for the expulsion of the Palestinian Arabs, shaped the Israeli culture that imagined the diaspora Jew, not the Palestinian, as the other (negation of exile), and, therefore, excised the Palestinians from the Jewish European awareness and Zionist discourse (A land without a people for a people without a land).

The PLO strategy and the hegemony of the state discourse or the two state solution (at least since 1974 and the adoption of the ten-point plan, or since the late 1950s for Fatah) ignores this fundamental fact (see discussion below).

2-    Al-Nakba and its consequences

The outcome of uprooting almost a whole nation was not limited to the creation of the refugee problem, and refugee as a new social and political category that composed the majority of the Palestinians. New political, social, economic, and spatial realities were created in which the old regime of power relations and the traditional political elite consisting mainly of competing groups of land-owners and urban elite, collapsed. The disintegration of the traditional elite and the new realities offered a political space for new elite groups to form.

While most Palestinians living in the area controlled by Israel were expelled or dislocated, the West Bank came under direct Jordanian control and was isolated until 1967 from Gaza that came under Egypt’s control. In both areas the composition of local political elite groups varied since 1948. The aftermath of the 1948 War or Nakba led to the creation of four separate realities (and many sub-realities) for the Palestinians where various elite groups would be formed in exile, the West Bank, Gaza, and inside "Israel."

The relationship between and within the political elite in the four areas would determine the politics of the Palestinian national movement and the PLO’s discomfited fate. Although the most obvious tension within the Palestinian movement seemed to have taken place between political organizations and within the institutions of the PLO in exile, some experts stress the “tensions inherent in the dynamics governing the relationship between those sections of Palestinian society that remained on the land (in Israel, the West Bank and Gaza) and those dispersed in other countries, primarily Jordan, Syria and Lebanon” (Tamari 2003).

Prior to 1948, Palestinians did not compose an undifferentiated mass. Sociologically, Palestinians were and remain sharply bifurcated. The Nakba and diaspora were and are, therefore, felt and experienced differently across the Palestinian communities. While many prosperous members of the fortunate few managed to deposit and transfer large sums of their wealth, accumulated before but certainly during the early 1940’s economic recovery, in foreign and Arab banks, the majority retained no more of their property than they inadvertently carried into the cruel exile in the chinks of their battered attire. Although immovable assets and urban buildings constituted two-thirds of the national wealth and were robbed by ruthless conquerors, bank records and estimates of movable assets show that millions of pounds sterling were either transferred or have already been deposited in English and Arab banks (see Smith 1984: 117-122).

Not only was exile experienced differently, a few even made fortunes out of the national tragedy. Therefore, many Palestinian communities existed in exile, not one. The separation was geographic, economic, social, and political. Those who acquired employment, especially as civil servants, and investment opportunities of their wealth in the underdeveloped but oil rich Arab Gulf states, such as Kuwait, grew to form the richest and most influential Palestinian community in exile. Together with their wealth and political sway, the Palestinian community in Kuwait, the real birthplace of Fatah movement, would play a decisive role in the history of the Palestinian national movement and the PLO. 

In the West Bank, the Jordanian administration’s discriminatory policies and favoritism would deform the local economy and produce a dependency of novel form. More advanced in every standard, and “far outdistancing neighboring Arab countries on almost every economic indicator” (Kimmerling and Migdal 2003: 138), the West Bank, mutilated under the new regime, was reduced to no more than a satellite of the impecunious East Bank. After annexing the West Bank, a few of the local political elite retained commitment and remained dedicated to the "Government of all Palestine" established in Gaza by the former elite attempting to consolidate and extend their power into the new age. “Other prominent Palestinians either retired into obscurity or were absorbed into the political life of the kingdom of Jordan” (Waines 1971: 170). The latter’s influence extended throughout the Jordanian governance of the West Bank, delimiting the political spectrum. Despite political oppression, dissent existed, but at a level narrower than that of Gaza.

A cataclysm of refugees inundating the Gaza Strip altered the local demography in a manner unprecedented. Gaza’s population increased three folds, almost seventy percent of whom were newly arriving refugees, becoming one of the most densely populated areas in the world. While fifty percent of Gaza’s population lived in refugee camps, “the agricultural lands in the strip were concentrated in the hands of nineteen percent of the original population, who were the only ones able to sustain a living from it”(Jamal 2005:20). Due to deteriorating economic conditions and the elites’ monopoly over land ownership, tension between refugees and the local elite prompted almost immediately reaching severe levels at certain times. Politically, however, and due to the Egyptian political rhetoric, the political spectrum was spectacular: communists, Arab nationalists, Ba’athists, and Islamic groups. Unlike Jordan, Egypt did not annex Gaza, but also neither allowed the “consolidation of a local political force independent of the will of Cairo… [nor] endorse[d] the traditional leadership”(Jamal 2005: 21). 

Inside the area controlled by Israel, Arab Palestinians were the odd man out. Not only had they “found themselves on the lowest rung of the social and economic ladder… they became citizens of a state that celebrated its independence around the event that they considered their biggest catastrophe”( Kimmerling and Migdal 2003:169). Facing an overwhelming power and now an oppressed minority in their homeland, Palestinians would render Israel’s de-Palestininization and de-Arabization policy a total failure. Attesting to a robust non-chauvinist-nationalist tradition that, contrary to Israeli propaganda, preceded Israel’s establishment, they marvelously proceeded to take up every possible hue in the political spectrum in order to defend an identity under attack.

In addition to Arab and Arab identity-oriented movements, Palestinian Arabs would make up the core of the few non-racist Israeli movements such as the Israeli Communist Party. Astounding opposition to Israel’s policies led by Al-Ard, Abna’a Al-Ard, and Abna’a Al-Balad movements would legendarily enter Palestinian history and the history of the Palestinian national movement. Ghassan Kanafani’s examination of the “Literature of Resistance” of Palestinians under Israel’s military rule illuminates on artistically innovative, nationally and historically conscious writers since 1948. Mahmud Darwish’s grand poem “Al-Ard” commemorated the confrontation of “Land Day” of March 30th 1976, in which Israel murdered six Palestinians defending their land.

The forcible de-peasantization of the would-be refugees, and dispersion of Palestinians induced, among many things, the collapse and demise of the Palestinian political elite that led the Palestinian struggle against Britain and the Zionist movement before 1948. Prior social arrangements such as clan structure, land ownership, and religious clerkship and offices that constituted the power bases of traditional leadership were eliminated by the 1948 War. The Government of All Palestine established by Haj Amin Husseini and former political leaders, was the last attempt to consolidate the traditional elite into the new arrangements but died soon after the war. It was discredited by Palestinians for mishandling resistance, and sanctioned by some Arab regimes, such as Jordan’s King Abdullah, that perceived it as a competing force (see Shlaim 1990).
 

Karma Nabulsi

There is a long and very rich mobilizing tradition of peoples who have organized collectively against their repression in exile over the centuries. Struggles for liberation against tyranny and unrepresentative rule historically and quite typically have had a large exile component. It becomes even more pronounced in the cases like that of the Palestinian people who were subjected to ethnic cleansing on such a massive scale. Yet when you cross the borders of your country and become a refugee, you do not lose your humanity. What I mean here is that you do not become reduced merely to a legal status as a refugee (as much as you need to hold fast to that status, since it expresses the absence of particular rights you are claiming as a refugee).

However, at that moment and from that day forward, your political agency, your role in struggling to overcome that predicament becomes even more essential, more integral as a person, and especially as part of a people. Actually, it is this that is at the heart of the Palestinian cause: the Palestinian revolution was created by Palestinian refugees who were insisting on a return to their homes. They were not claiming this right as refugees, but as a people dispossessed altogether; the claim is a collective one. It is important to highlight this point because the liberal model of the state comprised of individuals – refugees – with individual rights neither captures the collective predicament nor solves it. It is as a people with political and civic rights – collective rights – that we struggle to overturn the injustices together. This leads us to the question of political representation of course and - as in any struggle to liberate ourselves - the question of freely representing ourselves as the first step becomes the key challenge we must address together.

It is also why I never much liked the term diaspora, although it is the term that most readily comes to mind. By implication, it denies the political predicament we are in, and of our unity as a people who are seeking to overturn the ethnic cleansing of the Nakba. Accordingly, I find the term Al Shatat more sympathetic and more inclusive of our current state of affairs. Once Palestinians who are part of the core body politic can return to their homes, and chose to do so, then what remains of those who do not chose to return home (and there will be some) will then make up what will become the Palestinian diaspora. But until that moment, those Palestinians in enforced exile outside of Palestine are the people - and indeed happen to be the majority of the people. So it is vital not to implicitly accept the outcomes of this ethnic cleansing, or the language that has emerged from this violent coercion; one which frames our predicament as being one of “people” inside Palestine, and a “diaspora” with refugees outside of it. 

This central quest - to free ourselves and to represent ourselves freely - has been the dual challenge facing Palestinians since the zionist colonial project began at the start of the twentieth century. The violent combination of colonial and apartheid forces, together with the comprehensive, constant, and brutal repression by the Arab regimes, has meant that the urgent task of Palestinians is to overcome the geographic and physical fragmentation imposed by ethnic cleansing. This means that those Palestinians under occupation, who under the Oslo framework might have more priviledges in terms of political voice (especially in the West Bank), do not claim that voice, or seize the role of representation that belongs to all Palestinians, equally. This is a complex task given the current pressures. But here one takes great heart from the fact that the young generation of Palestinian activists in the West Bank and Gaza are increasingly aware of their responsibilities in this regard, and their understanding of their role as being one of ensuring the voices of the millions who are excluded are indeed heard, and have equal value and weight to their own.

Given this analysis, most of my own work, especially since the mid 1990s, has of necessity focused exclusively on exploring and establishing the precise mobilizing and representative mechanisms that can overcome this violent fragmentation, in the study of the philosophy and practices of democratic revolutions of the past and present. My own sense is that we can only overcome our current predicament through the force that the democratic will and mass mobilization of all our people – all – bring to this battle: with their energy, their commitment, and life. It is also because I believe that the struggle, and the land, and the claims to it actually belong to the people, being a committed adherent to the principle of popular sovereignty. This means that our cause cannot be run by an elite or a vanguard or a group who are as unrepresentative as the current few unelected officials currently holding the reins of offical power in Ramallah.
 

Sherene Seikaly

The Oxford American Dictionary defines "diaspora" as first and foremost “the dispersion of the Jews beyond Israel” and second as “the dispersion of any people from their original homeland.”

The notion of “diaspora” was central to Zionist understandings of the Jewish people as “abnormal.” Three foundational myths (the negation of exile, the return to the land of Israel, and the return to history) constituted Zionism’s colonial settler project (Piterberg, 2001). In understanding de-territorialization as a condition of abnormality, Zionism constructed the territorial nation as the necessary historical subject on the path to self-fulfillment.

I appreciate here Karma Nabulsi’s move away from diaspora when she says: “it denies the political predicament we are in.” I am interested in how we can begin to imagine a politics that demands Palestinian self-determination in, liberation on, and return to the land of Palestine, while dismantling the territorial nation-state as the natural and irreducible form of human collectivity. Seif Dana’s point that “many Palestinian communities existed in exile, not one” is central here. How do we critique the inherited essentialism and elitism of Palestinian nationalism, while still recognizing and demanding the nation-state as an object of struggle?

Zionist scholars explain that the mantra “a land without a people for a people without a land” did not in fact imply that Zionist were unaware that there were people on the land of Palestine. They were more precise. Palestinians were not a people. These “inhabitants” were disparate, an amalgam, a motley crew. It was the very denial of the Palestinian’s status as a people, a unified collective with legitimate political demands that was the basic infrastructure for British colonial rule. In November 1917, the British government instated its commitment to a Jewish National Home in Palestine through the Balfour Declaration, which pledged to facilitate Jewish immigration and land settlement while promising to safeguard the “civil and religious rights of existing non-Jewish communities in Palestine.” Thus, from its inception, the facilitation of the Zionist enterprise was premised on the invisibility of the native people, who are neither named, nor possess even the potential for political rights. Through the dual policies of land settlement and Hebrew labor, and under the political and economic facilitation of British colonial rule, the Zionist movement began partitioning Palestine in the first half of the twentieth century as farmers and sharecroppers were increasingly dispossessed from their lands and livelihoods.

Despite the denial of their collectivity, Palestinians forged a multiplicity of registers to resist this project of enforced invisibility. These included various efforts of political and economic elites, women, laborers, farmers, villagers youth and local leaders to mobilize their aspirations and demands for self-determination. These at times disparate efforts found their culmination in the Arab Revolt of 1936-1939 that included national boycotts and armed struggle against both British colonialism and Zionist settlement. British colonials tactics to suppress the revolt such as collective punishment, mass arrests, house demolitions, and torture were painful harbingers of what was to come.

Some Zionist conventional scholarship continues, until today, to portray the Nakba as a result of Palestinian “political deficiency” and the absence of an adequate “national spirit.” For over five decades now, scholars from all walks (Palestinian, American, European, and Israeli) have responded to this blame the victim approach by providing incisive accounts of Palestinian nationalism, urban life, literary and cultural production, populist politics and mobilization, the women’s movement, the struggle for labor rights, constructions and experiences of religiosity and much more. Such scholarship has seared a critical light through the accusation that Palestinians lacked the characteristics of a collectivity; that they stood outside of history.

Yet in a sense, historiographic debate continues to revolve around the relentless specter of the nation’s success or failure. Has the time now come to begin to imagine stepping out of the nation-state as the ultimate framing device? This labor could potentially allow us to dismantle and transcend the paradigm of Palestinian failure versus Israeli success as a civilizational and developmental fact on the ground. Indeed, the nagging and intrinsic problem that Zionism faced in the 1880s continues apace today: How can the vision of a democratic Jewish state be realized as long as Palestinians live in, around, underneath, or between the borders of the state of Israel? As Josseph Massad has put it: “Israel’s inability to complete its mission of thoroughly colonizing Palestine, of expelling all Palestinians, of `gathering` all Jews in the world in its colony, keeps it uneasy and keeps its project always in the present continuous.” Moreover, the question of the authenticity of Palestinian nationalism and collectivity seems to miss a basic point. People struggled against the process of their dispossession from lands that they and their families had continuously resided for hundreds of years, regardless of their adherence or lack thereof to a nineteenth century European understanding of identity as bound to constructed myths and carefully drawn borders. 

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Part II: A Positive Model or Doomed for Failure? [open in separate window

2. Is it fair to say that prior to Oslo, Palestinians had effectively organized themselves in a transnational governing body in the form of the PLO and the PNC? What are some elements of this historical experience that may be taken for granted in the current discourse on representational politics? What is the value of representational government today, in the form of reviving the PNC for example, and are there different, more forward-looking models, worth considering?

 

Karma Nabulsi

Rather than look at comparative cases (and there are many that can and will continue to be useful here), the
richest experience we need to draw upon first and foremost is our own. We have a quite extraordinary and truly epic tradition of collective organizing in our own revolutionary history, and one that provides us with principled guidelines to both liberation and representation.

In exploring representative and revolutionary mechanisms, one that was directly related to overcoming the Oslo framework’s physical, geographic, and political fragmentation took place in the early years of the last decade. Dozens of civic and political organizations in refugee camps and exile engaged in a mobilization from 2002 to 2006 involving tens of thousands of Palestinians in the more than twenty-four countries where our people now live and struggle. It also now provides us with an extremely useful template, as its conclusions go directly to the questions we now ask ourselves that we must answer. The results were plain: Palestinians everywhere seek direct representation in our national struggle, and see the only institutional framework within which it can have that representation is through reclaiming the national parliament of all Palestinians, the Palestine National Council of the PLO. This demand has already been synthesized into a collective one, and it has already been articulated by a broad base of our people.

At this moment we also now possess a forceful appreciation that only through reclaiming our national political institutions can we, as Palestinians, fashion our own destiny. And here the Arab spring has played a great role in clearing the minds of a generation of young Palestinians to understand that rather than engaging as solidarity activists with an existential Palestine, the task before us is to organize democratically and reclaim our national liberation institutions ourselves for ourselves. This reorientation in consciousness has been pivotal. We have not liberated Palestine, so we are not requiring of ourselves to create either a government or a state. The aim is simpler and more profound: to determine for ourselves together, collectively, our strategy for liberation and return. And since it is the only principle that puts popular sovereignty at its core, it is therefore the only truly revolutionary one.

During the previous era when the resistance organizations captured the PLO institutions from the notables and elites in the late 1960s, it functioned according to the ethos of the time, based upon the model employed by national liberation movements worldwide in the anti-colonial struggle for liberation. This means that those traditional organizing features of the period – underground resistance movements, unions, and mass institutional representation, were broadly popular and representative, and certainly legitimate. This is far from the case today. The PLO is empty of both the spirit and the will of the masses of struggling Palestinians. For example, most of our young people do not belong to any party, unlike the previous generation who filled the parties with their energy, commitment, and service, and gave the revolution its mandate. Most people belonged to one or more of the unions. In this way the PNC reflected a popular mandate. Today’s demands of direct enfranchisement of every Palestinian through democratic voting, constituency based, are reflective of this same principle of popular sovereignty, but expressed through the forms that are legitimate and collective today. And actually the issue here is both intrinsic and instrumental, for it is the only model that can work. A PNC based on factional quotas is not representative of the people, and only a directly elected national parliament can make the platforms and strategies of liberation that can represent the general will. So the demand is direct, and simple, and manageable. We have done it before, and we can easily do it again.

 
Seif Dana

I disagree that Palestinians had effectively organized themselves in a transnational governing body in the form of the PLO and the PNC. The PLO and the PNC were dominated since 1968 by wealthy members of the Palestinian community in Kuwait and the oil producing Arab states and formed the backbone of Fatah. For example, Arafat’s employment at the public work ministry in Kuwait put him in touch with the members of the wealthiest Palestinian community in exile, some of whom played important roles in Palestinian politics and PLO institutions since 1968.

In the aftermath of the collapse of the PLO’s first regime after the 1967 war, an interim chair of the executive committee, Yehya Hammoudeh, began an effort to reorganize the Palestine National Council with active participation of guerilla organizations that have just declared a strategy of armed struggle. Hammoudeh’s efforts together with strong influence from Fatah would result in an agreement that favored Fatah. The new Palestine National Council would consist of one hundred members distributed as follows: thirty-eight members for Fatah, ten for the Popular Front, twenty members for the Palestine Liberation Army, three for the popular and civil organizations (students, workers, and women), and twenty-nine independents.

During the February 1-4, 1969 PLO’s 5th Palestine National Council’s meeting, Fatah and the PFLP failed to reach an agreement regarding power sharing and control of the PLO, and the PFLP decided to boycott the meeting, insisting instead that “the existing PLO be completely dismantled to give all resistance movements equal voice in the leadership of the armed struggle”(Smith 1984: 195). Fatah took control of the PLO’s key positions and Yasser Arafat was selected as the head of the PLO executive committee (Jamal 2005: 19). In effect, the privilege and power baton traditional elite relinquished was passed to Fatah’s leadership and their supporters.

Fatah’s encroachment and control of the PLO was a significant political transformation in the history of the Palestinian National Movement, in which the orientation of the PLO’s agenda and even charter will have significant political and social impacts on the Palestinian national movement as a whole. Fatah’s control of the PLO’s key positions “gave the movement (Fatah) an advantage in the contest for supremacy within the Palestinian national movement. This step by the more conservative and pragmatic members of the national elite led to the marginalization of the other segment, which was more secular and more radical in its social views” (Jamal 2005: 19). So, The PLO (and PNC) was a powerful apparatus used to justify, or attenuate, the agenda of the right wing of the Palestinian movement.

The quest of the group that dominated the PLO and Fatah from the beginning was the establishment of a state. Fatah accepted and supported of the idea of entity (kiyan); “the establishment of a Palestinian revolutionary authority in the parts of Palestine that were put under Arab control after 1948 as an initial national step toward the liberation of all Palestine” (Filistinuna cited in Jamal 2005: 18) in the late 1950s, two decades before the ten-point plan of 1974.

Social, political, and economic transformations within the Palestinian communities, especially in exile, transformed the notion of a mini state (kiyan) from a treasonable notion into a "national necessity." The failure of the Palestinian elite to integrate into the Arab countries, and assimilate their growing economic power with the rising Arab elite in the oil producing countries, despite being accepted at the beginning, was the root cause underlying the quest for a political entity. This period of the history of the Palestinian national movement and PLO demonstrates not only the effective control and power the Palestinian elite in exile had on the PLO, but also the nature of the PLO as a revolutionary organization. The refugees, however, could not and did not integrate from the beginning.

 
Naseer Aruri

Is the situation reversible? Can the PLO return from its status as a virtual regime to a national liberation movement? Perhaps not with the same leadership the PA should remain with powers as a large municipality. Nothing more. The PLO, which has lost its structure, must be rebuilt.

One of the tragic mistakes is that we did not focus on the demand for the right to self-determination that encompasses everything. Instead, they concentrated on the idea of a state. A state? Netanyahu, Obama and Ariel Sharon also talked about a state, without land, water and borders. Everything is enclaves. Dr. Mamdouh Akr, head of a major human rights organization in the occupied territories put it this way:  

As far as I`m concerned, they can call that an empire. I can feel the seeds of change. There are demonstrations in the villages, the BDS [Boycott, Divestment and Sanctions against Israel], the boycott on settlement products, defying the PA on the Goldstone report. What has happened in Tunisia and Egypt will expedite the process of change, revitalize the Palestinian cause and bring it back to where it belongs - not to a government or a `state,` but as a movement of national liberation.

 

I would add: " ...as a representative movement of national liberation."


Today, US imperialism and hegemony are on the rise. Israel is governed by Iron Wall adherents, and thus unrestrained. The Arab states, which were inept in 1948, have been downright complicit. Egypt and Jordan not only enforced the Israeli siege on Gaza civilians, but they also provided training camps to the new quislings, in order to enable them to do the job of the Israeli army, and camouflage the occupation.

But this collaboration will be gone, no doubt, particularly after the great Arab Revolt of the spring 2011. This Arab awakening, which is still ongoing, is bound to reverse the earlier trends and create a milieu of emancipation and liberation. Egypt is no longer a symbol of subservience and collaboration; Its revolution has already placed it on the path of Arab nationalism.

At this juncture, one hopes that a regional milieu would create a more suitable environment for turning complicity back to resistance (perhaps the ongoing resistance in the form of BDS, and other means of non-violent struggle, together with serious efforts at unification of Fateh and Hamas). The backbone however, would have to be the non-violent mobilization. It would have to serve as the framework for the new resistance, the rebuilding of new institutions and the injection of democratic representation -- not that which governed the previous recruitment by appointment and the balancing of factions (fasail) in which Abu Ammar played the principal role.
 

Sherene Seikaly

I would agree with Seif Dana that Palestinian elites played a dominant role in the PLO and PNC. I would also emphasize that the character of those elites necessarily shifted and that is an important question to further explore. Additionally, it is also important to trace when and how Palestinian refugees constituted and challenged Palestinian politics. From today’s standpoint, the PLO’s turn to accepting a two-state solution and its recognition of 242 (the language of which reduces the Palestinian struggle to that of nameless refugees) are critical turning points, when the PLO’s ostensible base, Palestinian refugees, became marginal to the very terms of the struggle.

ADDITIONAL COMMENTS

Karma Nabulsi

I would like to add some historical comments about the PLO. I raise these now because I believe that a clear understanding of our past can help us better confront our many present challenges; a fair appraisal of the revolutionary elements in our history can certainly help us to organize revolutionary action and thought in the future. Too many black legends are propagated about the history of the Palestinian revolution. The remarkable world of that revolution has been presented to our young people as being nothing more than a series of betrayals, corrupt acts, and nasty leaderships. Besides its inaccuracy, this alienates Palestinian youth from their own history, and creates a demobilizing atmosphere, guided as it is by the principle that everything was always wrong and nothing was ever right. Such narratives negate all the sacrifices, everyday heroism, and positive elements that flourished in the Palestinian revolution (pre-Oslo Fateh included), and especially of the contribution and actions of the tens of thousands of cadres it was comprised of.

First, it is not accurate to argue that the “state discourse or the two state solution” had been hegemonic within Fateh since the late 1950’s. This claim relies on a single quote from an article in the magazine Filastinuna, taken out of context, and presented in a secondary source that itself has a very problematic teleological reading of Palestinian resistance. Any serious reader of Filastinuna will notice that it advanced an absolute and unquestionable commitment to the idea of total liberation of Palestine from the river to the sea. Fateh at that time believed that the liberation struggle was to be led by the Palestinian people from Gaza and the West Bank, the Palestinian areas that were under Egyptian and Jordanian administration. Those that spoke of a Palestinian kayan were interested in a fighting entity that could mobilize the entirety of the people in the battle for liberation. That is partly why they used the word kayan (entity) not dawla (state). Those interested in understanding Fateh’s ideas in the fifties should go back to the original sources, the two most important being Bayan Harakatuna (Our Movement’s Manifesto) and Haikal al-Binaa al-Thawri (The Structure of Revolutionary Building). The first goal of Fateh was outlined in its founding bayan without any ambiguity: “the liberation of Palestine in a total manner, and liquidating the Zionist occupying state politically, militarily, socially, and intellectually.” Every other Fateh principle, argument, article, pamphlet, or book from this period was built on this principle.

Actually, the same goes for Fateh of the sixties. Fateh was the first to call for armed struggle during this period. To call it “right wing,” is not entirely accurate, as it included numerous leftist (as well as rightist) elements that were committed to that principle. In fact, Fateh was the closest thing to a broad “national front” at the time, inspired in particular by the Maoist experience in China and by Ho Chi Minh’s example in Vietnam (for intellectual articulations of this fact see the following 1960’s Fateh publications: Al-Tajruba al-Vietnamia and Al-Tajruba al-Seenia, as well as Tahreer al-Aqtar al-Muhtala; for its concrete application check the lists of major cadres that were active during this period, reflecting communist, nationalist and Ba’athist as well as Muslim Brotherhood backgrounds). This is not to defend Fateh of today by any means, but it is to salvage the revolutionary legacy of the movement. Rejecting Oslo and its defeatist logic should not amount to rejecting the history of the Palestinian revolution -- indeed, reclaiming the history of the revolution should be a matter of concern for anyone serious about emphasising the importance of revolutionary struggle in the present and future.

Those who have experienced the revolutionary spirit of the past find claims that “the PLO and the PNC were dominated since 1968 by wealthy members of the Palestinian community in Kuwait and the oil producing Arab states and formed the backbone of Fatah” as quite alien. Sure, the Palestinian community, including the bourgeoisie and the businessmen in Kuwait played an important role in financing Fateh (as well as the PFLP by the way). But to claim that this amounts to “wealthy” or “Kuwaiti” dominance over the PLO and PNC is not only inaccurate but incorrect. Most of the Fateh leadership and cadres came from families that were out of the orbit of the traditional politics of the notables. And in fact, the 1960s witnessed quite a shift in the Fateh leadership from the Gulf based group to those located in Syria, Jordan, Palestine and Lebanon.

As for the reasons behind the PFLP’s initial attitude to the PLO, these are complicated. There was a traditional mistrust of the PLO on the part of the groups that were committed to armed struggle (indeed, Fateh’s entry to the PLO was itself made with hesitance and after much internal debate). There were also differences over the percentage of seats that each party would get (the PFLP demanded a larger quota than Fateh was prepared to give, that did not represent its diminished weight in the post-Karameh period). Those interested in the debates of the period should go back to PFLP publications from those days rather than Western secondary literature on the topic.  A good sense can be gained from the PFLP’s 1969 pamphlet “Al-Jabha al-Sha’biya Li Tahreer Filasteen Tuwadeh Mawqifaha Min al-Ishtirak fi al-Majlis al-Watani wa Al-Lajna al-Tanfithya wa Qiyadat al-Kifah al-Musalah” (The PFLP Clarifies its Position Regarding Participation in the PNC and the Executive Committee and the Leadership in the Armed Struggle). The evolution of these positions can also be seen in the post-Black September period in such writings as "Al-Bayan al-Siyassi al-Muqadam ila al-Dawra al-Tasi’a Lil Majlis al-Watani al-Filasteeni.” (The Political Communiqué Submitted to the 9th Session of the PNC) which explains why the PFLP participated in the PNC for the first time. The PFLP’s history with the PNC has ebbed and flowed, but it has always accepted the principles of the PNC, and for many years it has regretted its early positions on it. Certainly, those positions were not shared by the entirety of the Palestinian left (including the left-faction within Fateh and the DFLP).

What is important to emphasize, however, is that whereas the PNC at the time operated on the basis of “revolutionary legitimacy” (accepted as a concept and guiding principle by PFLP, Fateh, DFLP and everyone else at the time and common to anti-colonial liberation movements of the period), what is relevant today is to shift the basis of representation to “electoral legitimacy,” by enfranchising all Palestinians including those living in the places of refuge and exile. Our strength does not lie in either negating or disposing of our entire political heritage, but rather in reclaiming its proper resources and strengthening it through common principles and purposes. Structures like the PNC and the PLO were established after a long and arduous process of struggle with the Israelis, the Arab regimes, and the western states, and most importantly, in spite of them. These structures afford Palestinians struggling for liberation and return the necessary mechanism for representation -- once re-energized with our people’s popular will -- in spite of their current emptiness and unrepresentative character.
 

Seif Dana

I argued that the PLO did not only fail, but enfolded the seeds of failure from the beginning in its political thoughts, structure, and social orientation and background of its leadership. My concern in this very short exercise (to call for reconstructing the history of the Palestinian national movement (PNM) and the PLO) is to explain the political present of the PNM and its leading force, the PLO. Failure alone not only does not suffice neither explaining the tragic conclusion of the PLO venture nor the political present. It does not provide any insights for any promising alternative future. In other words, my concern with an alternative past is not to explain the causes of the failure per se but also to seek principles of a view for an alternative future (this, of course, requires more space and effort than this very short synopsis).

I inserted the term “tragic” above to characterize the PLO’s failure in order to highlight the amazing heroism and great sacrifices of the Palestinian people and the cadres and members of the PLO’s factions despite the disastrous outcome. In this sense, there is a need to distinguish between history (which explains the present, or should be reconstructed to do so should we continue to seek the envisioned promising future of the first generation of Palestinian rebels) and historical literature. Slipping into idealism and holding on to the romantic optics to perceive the PLO and the history of the PLO’s venture might have been necessary in the early period of the Palestinian revolution -- like any revolution at the beginning (David Scott’s “Conscripts of Modernity: the Tragedy of Colonial Enlightenment” reading of C.L.R James account of the Haitian Revolution in the “The Black Jacobins” might be useful to consider). Retroactively, however, it is possible now to see that underneath the shrill of revolutionary lexis of defiance, there was always a tacit, and sometimes explicit, willingness to compromise and accept a political settlement to the contrary. Both Arafat’s 13 November 1974 UN speech and 15 November 1988 Declaration of Independence of the State of Palestine are good examples. (I dealt with both in more details elsewhere in Arabic in the “State Discourse” and “Tragedy of the PLO”. We live in a new era, however, that requires highly critical lenses to perceive the PLO experience in order for the liberation, not state, scheme to remain alive.

In short, given what seems to many as an undisputed outcome, or failure, (unless we can pinpoint concrete success or if we consider the establishment of the Palestinian Authority as a historical achievement) any recounted history might show that, at its kernel, the PLO germinated conditions and enfolded forces that spearheaded its demise. The PLO failed because of factors similar to those that rendered earlier independence and development attempts in the Arab homeland (and elsewhere) ephemeral, calamitously departing the nationalism and independence age. Similarly, the PLO’s failure was immaculate. Post-Nakba rising social forces that took over the PLO, led a fundamental reconstruction of the whole political and cultural landscape underlying the PLO’s national and democratic liberation cause.

Changing global, regional and local structural conditions coincided with the highly pragmatic, but hegemonic nonetheless, Palestinian elite to produce the co-optation of once the most spectacular manifestation of revolutionary vigor in the modern history of the Middle East. An evener, an alternative to dwarf the effects of the inescapable social nature of the leading forces the post 1948 war realities sprouted, was not missing and the elites’ ascendance to and grip on power was not without a fight internally and beyond the PLO’s institutions (e.g., Fatah vs. PFLP; PLO vs. the 1970s “National Front” and “National Guidance Committee” in the West Bank and Gaza). Failure, however, was a matter of history, not in spite of it. With the exception of few a cases, literature on the Palestine question has ignored this highly important dimension of the conflict within the PLO (see Habash 1998; Kazziha 1975; Gresh 1985; Tamari 2003).

However, this is not and cannot be the end of the story of the Palestinian struggle. Given that the specter of Palestine appears to be occupying a central status in the ongoing Arab revolts that definitely signify the beginning of a new era, one should remain highly optimistic. The beginning should be a shift in the political discourse towards restoring the original and true view of the conflict (anti-colonial struggle rather than border conflict), a discourse of liberation rather than state. This is a great step.

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Part III: Whither Palestinian Resistance? [open in separate window

3. For many Palestinians who had hitherto been involved in the Palestinian Liberation Organization and its associated bodies like the Palestinian National Council, the advent of the peace process and particularly the terms of the Oslo Accords signaled a collapse in a resistance platform and instead a turn to complicit accommodation of Israeli colonialism and apartheid. Do you agree with this sentiment? If so, what factors do you believe contributed to the collapse of the resistance platform and do you believe it can be rehabilitated? If not, what do you believe constitutes a resistance platform today?   In either case, how can the Palestinian national body continue its struggle for self-determination in light of the peace process’s most recent collapse?

 Naseer Aruri

The Palestinian struggle for "independence" or self-determination since the 1967 occupation passed through three stages: Paramilitary, known as "armed struggle," diplomatic/political, political, and statist. Initially, the armed struggle was declared as the means to establish a single democratic secular state in all of Palestine in which equality among Christians, Muslims and Jews would prevail. That was a short-lived endeavor, which effectively came to an end in the early 1970s. An unwritten agreement was then reached between the PLO and the Arab states, in which the former agreed to tone down its revolutionary rhetoric, give up the “armed struggle,” and launch a form of diplomatic struggle jointly with the Arab states in pursuit of a mini-state in the West Bank and Gaza.

The diplomatic struggle proceeded since 1973/74 (Algiers and Rabat summits, which recognized the PLO as the sole legitimate representative of the Palestinian people). But while pseudo diplomacy was the major focus of the PLO’s work during the 70s, 80s and 90s, there was an important political struggle going on inside the occupied territories. It was the endeavor of civil/political society applying a non-violent struggle under the banner of the Palestinian National Front PNF during the 1970s). Their techniques varied from non- payment of taxes, to boycotts, demonstrations, and other peaceful means designed to not only declare the occupation For the next two decades, this unwritten agreement, and the search for a “two-state solution,” was to consume the combined energies of Palestinians and Arabs.

The third phase is the statist, the search for statehood began with the PLO quest for international recognition, as the sole legitimate representative of the Palestinian people, claimed the largest portion of Arab and Palestinian resources, and that came at the expense of fundamental national and human rights, including refugee rights and interests. The PLO was easily enticed to embark on the Oslo process, just as it had been persuaded to enter into the joint diplomatic struggle for a futile two-state solution two decades earlier. Israel’s aim was to side-line the political/civil society struggle going on inside the Occupied Territories. From there the road to Oslo was paved for an unprepared PLO, and the result was the present disaster. 

For the millions of Palestinians scattered outside pre-1948 Palestine, Oslo meant that there would never be restitution or a right of return, there would never be adequate representation. For the Palestinians inside Israel, Oslo meant that they would have to accept, for all times, their status as second-class citizens -- the cutters of wood and hewers of water.

Oslo succeeded in dismantling the fabric of civil society and destroying its grassroots political struggle. In its place, we now have a state apparatus without a state. Thus, Oslo’s biggest damage was the one inflicted on civil society.

Peace may never be at hand as long as the 1948 Nakba is not recognized for what it is — a form of ethnic cleansing, a colonial settler enterprise, which covets the land without the people.

The ultimate goal of the colonial settler regime is to destroy the political and national existence of a whole community of people, and thus deny it the possibility of self-determination. It is a process of politicide, one that has as its ultimate goal the dissolution of the Palestinian people’s existence as a legitimate national, social, and economic entity, which may also include partial or total ethnic cleansing.

This is what Israel has been doing to the Palestinian people, persistently between 1948 and the present —destroying the very fabric of the Palestinian nation and obliterating the Palestinian WUJOUD (presence).

Of course, the so-called peace process could never succeed in these conditions. First, a colonial settler regime is inconsistent with peace and so is the pursuit of politicide.  A two-state solution is not in the offing, given the lack of intent to withdraw from occupied land, and to permit any sovereignty other than Israeli on any piece of land lying between the Jordan River and the Mediterranean Sea.

Consequently, a real state in the West Bank and Gaza is simply not in the cards. That also goes for Fayyad`s 2011 project.
 

Seif Dana

Yes, I agree. Actually, a tacit willingness to accommodate the Zionist colonization of Palestine existed since the early 1970s. The quest for a mini-state by the Palestinian elite began much earlier and became possible after this group took over the PLO. The Palestinian elite control of the PLO since 1974 was truly nothing less than a coup d`état .It replaced the liberation discourse that enfolded early Palestinian revolutionary thoughts with the state discourse, which entails not only a tacit recognition of the Zionist colonial scheme, but clearly showed that Palestinian (and Arab) elite shared structural interest with the Israeli elite. This, at least partially, explain not only much about the Oslo era (an agreement intended originally to prepare the foundations for a neo-liberal Middle East rather than achieve alleged peace), but also the futility of all attempts to reform and rehabilitate the PLO. The story of the Palestinian elite in exile since the Nakba is important and is worth narrating to understand the sequence of events from 1970 on. 

In the aftermath of the Nakba, wealthy and influential Palestinians embarked on economic schemes and extended their economic base to the rest of the Arab world and beyond. The economic success story of the Nakba duly bred Palestinian bourgeoisie is more than just impressive. In less than five years after the Nakba, Palestinian owned firms dominated the Arab economy and were the central player in enormous economic ventures that were regional in scale. The story of the Contracting and Trading Industry (CAT), one of several ventures that operated at the regional level and had international connections, testifies to a significant impact these ventures had on the development of Palestinian and PLO politics later.

It all began with the early 1940s economic recovery when CAT, a Palestinian venture established by the Lebanese businessman residing in Palestine, Emile Bustani, received major construction contracts from the British Army during the war. After the war, CAT extended its operation to the rest of the Middle East, operating in construction of, among many things, oil pipelines and oil installations. In the early 1950s, CAT formed a partnership with the British Motherwell Bridge and Engineering company. The new breed, MotherCat, specializing in refineries construction, pipelines and oil tank farms, was the only one in the world that was capable of providing the kind and size of pipe needed for the Middle East oilfields (Smith 1984: 137).

Successfully performing major construction work for British Petroleum and Shell (such as the construction of the Iraqi Petroleum Company (IPC) in the early 1950s), CAT’s operation extended to all British controlled Arab Gulf States. CAT and MotherCat won

major contracts for the construction of oil pipelines, oil terminals and storage depots, roads, power plants, water-supply installations, port and harbor works, pumping stations and commercial buildings in Kuwait, Qatar, the Emirates and later, in Saudi Arabia and Oman as well. In Qatar, CAT obtained a virtual monopoly on foreign trade and construction for the oil industry in the early 1950s (Ibid: 135).     

    

Scores of Palestinian firms and Palestinian businessmen embarked on other ventures that would also extend their operations to the rest of the Middle East. Investors from the pre-war Arab Bank branch in Haifa would establish the Arabia Insurance Company, with branches in most Arab countries and even in Britain, the Cortas Canning and Refrigeration Company, Al Mashriq Financial Investment Company of Beirut, and the Beirut-based Intra Bank that became the largest financial institution in Lebanon with assets amounting to just under one billion Lebanese pounds (325 million US dollars) in 1965. In addition to their actual specialization, these corporations would own airlines (Middle East Airline operating from Lebanon), casinos, publishing houses, radio and TV interests. 

The power of this group was not only in being the best and most-fit instrument suitable for a possible integration of the Arab economy, but also in their access to political power in Egypt, Kuwait, Saudi Arabia, Jordan, Qatar, Lebanon, Libya, Bahrain, and their political involvement in Palestinian politics and PLO since the beginning. Fuad Saba of the Arab Bank and the founder of the Al Mashriq Financial Institution that handled businesses for CAT, Arabia Insurance, and other Palestinian-owned firms, was responsible for setting up the Palestine National Fund and was appointed Secretary of the Arab Higher Committee (Ibid: 132-3). Emile Bustani’s death in a crash while campaigning for the presidency in Lebanon, in addition to other seemingly unexplainable accidental deaths of several Palestinian businessmen initiated many conspiracy theories regarding their fate. The Palestinian elite not only created a structure for a possible economic integration of the Arab world, but assumed that they have successfully integrated into the Arab surroundings.

The success of the Palestinian bourgeoisie in exile, engrossing the envy of rising local bourgeoisie in the recently independent Arab countries, led to a series of new measures adopted by the Arab countries favoring compatriots for holding supervisory positions in the economy, and local companies, rather than Palestinian-owned firms, for major contractual work. Such a strategy would stabilize these regimes and eliminate such structures that might make Arab unity in the future conceivable. Many Arab countries amended their agreements with oil corporations giving priorities to their nationals to hold key positions in oil ventures, while others, like Kuwait, gave this favoritism the power of the law as in the 1965 Industrial Law. In the exceptional cases in which Palestinian firms could still acquire contracts and were allowed to operate, they were required, as foreigners, to pay hefty fees. The new measures coupled with the nationalization of firms, resources, and assets in many countries such as Iraq after the Qasem revolution, Syria and Libya, and even arrest of Palestinian businessmen as in the case of Libya, bankrupted many of these firms, while others lost holdings to rising Arab businesses, especially in the Arab Gulf states.   

The last of these pernicious measures took place in Jordan. Forced by the decision made during the Arab Summit Conference held in Rabat, Morocco, in 1974 to recognize the PLO as the sole and legitimate representative of the Palestinian people, and following the failure of the United Arab Kingdom initiative to unite the West and East Bank, King Hussein temporarily abandoned his quest for controlling the West Bank and embarked on the program of Jordanizing the East Bank. As a result, influential Palestinians lost their powerful political posts in the government and civil administration. Thus, “Palestinian merchants, financiers, and industrialists who depended on the government for contracts and funds found themselves at a disadvantage vis-à-vis their Jordanian rivals” (Ibid: 142). Losing ground in exile, many prosperous businessmen and ex-Jordanian loyalists switched allegiance to the PLO. The Palestinian bourgeoisie began their long quest for a state of their own, and the PLO was the effective instrument. 

It is fair to conclude that the PLO did not really fail miserably, one might say, but enfolded the seeds of failure from the beginning. The destiny of diaspora activism was ill-fated from the beginning as well. It failed to either contribute to the national liberation scheme or community building in the diaspora. Entwined structurally and politically with that of the PLO’s scheme, the fate of the diaspora activism was sealed.


Karma Nabulsi

Not to be too dialectical, but this same strategy to free ourselves and to represent ourselves freely is also the same self-mobilizational mechanism to unite ourselves. This is why a reconciliation of the factions (although always welcome) neither addresses nor solves the Palestinian predicament. Without the force of the popular will coming together in the equivalent of our own national public square, we cannot liberate ourselves. As this core aim is what binds us, the calls for direct elections to the PNC has taken new life. And I am confident, within the fold of the Arab revolutions that are currently underway, that it will succeed.

Many other strategies and frameworks that have either distracted us from our national responsibilities, or have not been able to have the strong effect they must, can function properly when emerging directly from a body comprised of the people themselves. It is here, too, that the early revolutionary generations’ work can provide useful models. Our people, as we know, possess an extraordinary amount of talent, determination, and courage. Within a loose framework of the institutional unity that the PNC provides, all of these independent initiatives and gestures, all the civic activities in the realm of intellectual initiatives, of student activism, of workers’ mobilizations, of culture production, of collective and individual enterprises and campaigning, of resistance through popular and legal strategies, can take both strength and direction. For we absolutely need this kind of intellectual, ideological, and sectoral pluralism, this vitality, this debate and contestation within the national architecture of our liberation struggle.

Here, the differences and divergences become a real strength, rather than simply adding to our current fragmentation and frustration. In our own revolutionary history at its best, and in every revolution’s history, it is within the collective framework that the unique contributions of each find their home inside the collective. For me, this is the essence of political freedom.


Sherene Seikaly

Nasser Aruri makes a powerful point in reminding us of the PLO’s shift from armed struggle, to pseudo-diplomacy, to pseudo-state strategies. I would add here that there the Arab spring offers some lessons and reminders for the course of Palestinian politics. Grassroots mass mobilization was the force that inspired, executed, and undertook the uprisings and revolutions of Tunisia and Egypt. We are now witnessing various leadership figures scrambling to catch up to the will and strength of popular demand. Similarly, in 1936 the elite Palestinian leadership was at pains to harness the popular resistance to British colonialism and Zionist settlement. In the 1970s and later with the beginning of the Intifada, grassroots organizing led and the political leadership followed in the struggle against the occupation. This is the case today, as broad efforts in the West Bank and Gaza and beyond call for Boycott, Divestment, and Sanctions. As we witness the unlikely sight of courageous Palestinians, Syrians, and Lebanese lining that invented and impermeable border that has interrupted lives and families, the possibility of another moment of popular politics is upon us. 

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