In 2023 I attended and participated in a panel at an Old Parkland Conference in Dallas. (That panel can be viewed here.) Justice Clarence Thomas spoke at that conference, which was dominated by black centrists and conservatives. At an evening reception, with a stiff gin and tonic under my belt, I approached Justice Thomas. I indicated that I was on the opposite side of the political fence from him and had disagreed with many of his opinions, but that I agreed with him about two important issues. The first was that the concept of "substantive due process" was an invention that had allowed both conservatives and liberals, in different eras, to find things in the constitution that are not there. (I agree with the results of some decisions based on that concept, such as the gay marriage decision, but I think that they could have been reached on simple equal protection grounds.) The second was that I agreed with his dissenting opinions that a single federal district court judge should not be able to block a law or policy all over the country. It was a very polite conversation across party lines, which was my intention.
Last week Chief Justice Roberts's majority opinion endorsed Thomas's view on nationwide injunctions, which have been issued against policies of both Republican and Democratic presidents. The specific injunctions in question had overturned President Trump's denial of birthright citizenship. I agree with the judges who issued them that his executive order on that subject is flagrantly unconstitutional, and the Supreme Court made clear that it was not at this time ruling on the merits of the case. I feel pretty confident that the court will sustain the interpretation of birthright citizenship that it laid down back i the 1890s, and which by the way had been common law since the founding of the republic, long before it had been stated in words of few syllables in the 14th Amendment. But unlike New York Times columnist Jamelle Bouie--who admitted his own doubts about nationwide injunctions in principle, but attacked the specific decision because it allowed Trump's policies to continue in some jurisdictions--I am not willing to reject a decision that I agree with in principle because it has a momentarily negative effect.
Let's be clear about the precise effect of this decision. Cases can be brought on behalf of particular infants in a given jurisdiction, and a district court judge could issue an injunction reserving their right to citizenship (and to remain in the country) while the case is heard and winds its way through the court system. The Roberts opinion even invited class action suits that could theoretically apply to all babies born in the US. But the principle could not be reaffirmed and the administration forced to abandon its policy until a case reached the Supreme Court. I deeply regret that Trump's policy was issued in the first place, but I can accept the need to wait in order to overturn precedents that have allowed individual district court justices to veto actions by the executive or legislative branch all over the country. Too many Democrats, including most of their representatives in Congress, have committed themselves to the proposition that anything Trump does must be overturned by any possible means. I don't think we deserve to win the ongoing political struggle if we can't at the same time stand for generally sound principles.
Now to another matter entirely.
I am sad to be writing this part of this post. More and more information confirms what I have suspected for at least a year. The government of Israel is not fighting in Gaza to get the remaining Israeli hostages back, or simply to destroy Hamas. It is fighting to make the Gaza strip uninhabitable and to force most or all of the Palestinians to flee to some other territory. The official explanations for Israeli tactics have never made much sense to me. The government claims to be striking at Hamas fighters, but we have all known from the beginning that Hamas fighters are living in tunnels underground, and I have never been able to understand how leveling most of the buildings in Gaza could really help get at them. They have obviously used violence pretty indiscriminately, leading to the deaths of at least 60,000 Palestinians in the last 20 months, most of them civilians. Within just a few months after the outbreak of the war, Jared Kushner, who has worked closely with the Israeli government, suggested to a Harvard audience that this war, like the recent wars in Iraq and Syria, would lead to the relocations of many thousands of people. In recent weeks news stories have confirmed this Israeli goal and provided more details about the tactics that Israel is now using to achieve it.
The first piece, written by an academic named Shadi Hamid, appeared in the Washington Post in late May. It cited a May 11 report in the Israeli centrist newspaper the Jerusalem Post of blunt remarks that Prime Minister Netanyahu made to the Knesset Foreign Affairs and Defense Committee. "We are destroying more and more homes, and Gazans have nowhere to return to. The only inevitable outcome will be the wish of Gazans to emigrate outside of the Gaza Strip," Netanyahu said. President Trump, of course, had already proposed the resettling of the Gazan population in some other territory such as Egypt or Jordan. Hamid also quotes the Agriculture Minster, Avi Dichter, saying, "We are ow rolling out the Gaza Nakba"--a reference to the forced removal of Arabs from the new Israel in 1948--just a month after the current war began. A further month after that, Finance Minister Bezalel Smotrich said, "what needs to be done in the Gaza Strip is to encourage emigration" and looked forward to the day when only 1-200,000 Arabs, not two million, would live there. More recently Smotrich told supporters that Gaza would be totally destroyed within a few months and the remaining population concentrated in the southernmost part of the Gaza strip.
Two days ago, the leftwing, anti-government Israeli paper Haaretz published a well-sourced account of what the Israeli Defense forces are doing in Gaza today. Many readers will have read the almost daily reports of dozens of Palestinians being killed while waiting at new food distribution centers set up by private groups after Israel stopped the international aid effort in Gaza. The Hamas-dominated Gaza Health Ministry now claims that such deaths have reached 549 people. Several Israeli soldiers told Haaretz that troops are routinely opening fire on groups of Palestinians waiting for the distribution of aid without either warning or provocation. I quote from the article:
"It's a killing field," one soldier said. "Where I was stationed, between one and five people were killed every day. They're treated like a hostile force – no crowd-control measures, no tear gas – just live fire with everything imaginable: heavy machine guns, grenade launchers, mortars. Then, once the center opens, the shooting stops, and they know they can approach. Our form of communication is gunfire."
The soldier added, "We open fire early in the morning if someone tries to get in line from a few hundred meters away, and sometimes we just charge at them from close range. But there's no danger to the forces." According to him, "I'm not aware of a single instance of return fire. There's no enemy, no weapons." He also said the activity in his area of service is referred to as Operation Salted Fish – the name of the Israeli version of the children's game "Red light, green light"
Several other soldiers confirmed all this, detailing incidents in which Israeli sources opened up artillery fire on waiting groups of Gazans. And another veteran fighter described another Israeli tactic. "Today, any private contractor working in Gaza with engineering equipment receives 5,000 [roughly $1,500] shekels for every house they demolish," he said. "They're making a fortune. From their perspective, any moment where they don't demolish houses is a loss of money, and the forces have to secure their work. The contractors, who act like a kind of sheriff, demolish wherever they want along the entire front." Netanyahu and Defense Minister Israel Katz have denied these accusations, calling them "blood libels," but there were too many sources in the Haaretz article to dismiss, and the numbers of dead speak for themselves.
Meanwhile, since October 7, 2023, Israeli settlers and the Israeli army have escalated their pressure on Palestinians in the West Bank, which Smotrich promised to annex within the next year or so. Israeli heavy equipment routinely begins raids into refugee camps by tearing up paved roads, and settlers are trying to empty more and more territory of Palestinians.
Israeli supporters within the United States have continued to argue that Israeli tactics in Gaza are a necessary response to October 7, and that Hamas and the Palestinians have brought all this upon themselves. They have not reassessed their position in light of these revelations, and I don't think that they will. And I am not writing this piece in a the belief that I or anyone else can stop what is happening. A recent poll of the Israeli people found 82 percent of respondents in favor of driving the Palestinians out of Gaza, and the Trump administration will not stand in the Israeli government's way. This looks like the climax of almost 80 years of struggle between the Israeli government and the Palestinian population--intermittently backed by various Muslim governments in the region. And Jared Kushner, sadly, was right: we do live in a new age of ethnic cleansing and population transfers, in Myanmar, in Sudan, and in the Middle East.
