Constitutional crisis: Can High Court strike down reform bills? – analysis

Constitutional crisis: Can High Court strike down reform bills? – analysis


The question of whether the court should be able to review Basic Law amendments has been a gap in Israel’s legal structure that reformists say they are attempting to fill.

Judicial reform supporters wave Likud flags and hold signs reading “The leftist minority will not determine Israel” and “Leftist traitors” at a protest on Saturday night, March 18, 2023. / (photo credit: ERIK MARMOR/FLASH90)

Concerns about an impending Israeli constitutional crisis surged on Tuesday as opposition members called for the High Court of Justice to strike down judicial reform laws – and coalition members debated whether they would accept the court’s decision.

Judicial reform negotiation attempts have all but failed with the complete rejection by the coalition of President Isaac Herzog’s “People’s Directive.” The opposition has little recourse against the reform after the coalition decided on Monday to proceed with a unilateral compromise on it – and the final Knesset readings on the amendment to the judge selection committee Basic Law are set to be held before the parliamentary Passover recess.

Opposition leaders have increasingly turned to the possibility that the High Court of Justice would engage in a judicial review of the judicial reform bills as a final hope. Former attorney-general Avichai Mandelblit expressed confidence on March 12 that the court would strike down the legislation; the next day, Yisrael Beytenu head Avigdor Liberman called on the court to cancel the bill.

Justice Minister Yariv Levin on the court’s decision

Justice Minister Yariv Levin said on Monday that he wouldn’t accept the High Court’s judicial review of the Basic Law amendment regarding the composition of the judge selection committee, which will see its final Knesset readings before the Passover break. Economy Minister Nir Barkat said that he would accept the court’s ruling, only out of concern that its rejection could lead to a constitutional crisis.

This is when the government comes into unresolvable conflict with the constitution, often in a way that falls between the gaps in the legal structure. While Israel lacks a formal written constitution, it does have the quasi-constitutional Basic Laws.

JUSTICE MINISTER Yariv Levin addresses the Knesset plenum last week, before voting took place in a first reading on judicial reform legislation. The government has remained inactive in clarifying the reform’s purpose, says the writer. (credit: YONATAN SINDEL/FLASH90)

Bar-Ilan University law professor Avi Bell said that there is no law that authorizes the court to strike down Basic Laws, or even regular legislation.

“When the court declared its ‘constitutional revolution’ in the mid-1990s, giving itself the power to cancel legislation, its justification included the claim that the Knesset acts as a constitutional assembly when it enacts Basic Laws and that Basic Laws are really a constitution, so the court is just enforcing the Knesset’s constitution when it strikes down non-Basic Laws,” explained Bell. “Obviously, this justification cannot possibly excuse a court decision to nullify Basic Laws.”

Given the powers that the court had granted itself, and the desire to protect those abilities, said Bell, it was possible that the court could determine that it could cancel Basic Laws.

Hebrew University law professor Yoav Dotan said that the ability to strike down a Basic Law was complicated, explaining that the idea of judicial review itself leans on the supremacy of the Basic Laws over regular legislation.

In comparison to other states, courts have in extreme cases reviewed constitution amendments, but this has been rare, said Dotan. Where Israel differs is the lack of a special method for creating its constitutional articles.

“It doesn’t differ from regular legislation by the Knesset,” he said, “so it’s very easy for the Knesset by regular political procedure to change them, which makes the option or the possibility of judicial intervention even more relevant.”

There is little precedent for review of Basic Laws, said Dotan. The High Court has intervened a few times on the technical level. When the Knesset attempted to temporarily amend the Basic Law addressing the budget, the court ruled that as a fundamental state article, such a thing wasn’t possible.

“So far, they haven’t gone all the way by saying that the Basic Law is undemocratic or something like that, to strike down a Basic Law,” Dotan said.

The grounding by which the court could make its ruling would be based on just this, the law professor said, claiming that the law must conform to principles of democracy, separation of powers, or the values of the Declaration of Independence. Ultimately, Dotan said much of this was speculative as it was such untrodden territory.

The question of whether the court should be able to review Basic Law amendments has been a gap in Israel’s legal structure that reformists say they are attempting to fill. Versions of the Judge Selection Committee bill have contained provisions to bar the court from interfering in Basic Laws.

“One of the central motivations for the proposed judicial reform is that the Court acts as if it is above the law in striking down legislation of the Knesset,” said Bell. “No law authorizes the court to strike down laws due to insufficient discussion in committee, for example, but the court has nevertheless done so.”

The Likud responded to the discourse on the looming crisis by saying that calls to strike down the law were a reason for the reform, and noted an emerging tradition in every reform outline from Herzog and Rothman to Friedmann, which had accepted that xourt review of Basic Laws should be disallowed.

“The Court’s overreach will be the constitutional crisis,” said Bell. “Obviously, there is a danger that matters will go downhill from there.”

If the court determined that it had the power to strike down Basic Laws, and the government refused to accept the decision, each branch would be mutually rejecting the legitimacy of the other. The court would not be accepting the constitutive authority of the Knesset, and the government would be rejecting the court as an interpreter and protector of the law. This could extend to all other legal and governance matters and relations between the judiciary and the legislative and executive branches, a scenario for which there is no precedent.

What would happen next is unclear, said Dotan.

“Nobody can make clear predictions here, because this is unstudied terrain, certainly for Israel”

The likelihood of the court striking down the judge selection amendment was quite high if the government continued with its current legislative path, Dotan estimated.

Bell said that the high probability was a political issue, not a legal one. He said that it depended on the individual justices, the expected backlash from the media, and whether the opposition would back its activism.

“I can only hope that members of the court’s anti-reformist camp will persuade the justices to take a less reckless course.”

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Antisemitism in Switzerland Continues to ‘Persist and Grow’: New Report

Antisemitism in Switzerland Continues to ‘Persist and Grow’: New Report

Algemeiner Staff

The interior of Geneva’s main synagogue. Photo: Geneva Jewish community

Antisemitism in Switzerland continues to “persist and grow,” a new report from the country’s main antisemitism monitoring body stated on Wednesday.

In a report detailing the increase in antisemitic incidents during 2022, the Intercommunity Coordination against Antisemitism and Defamation (CIDAD) identified 562 cases in the Francophone part of Switzerland.

The group noted a dramatic increase compared with the previous two years — 165 incidents in 2021, 283 in 2022 — but emphasized that the rise was in part due to the inclusion of additional sources of antisemitism, such as the Telegram social media platform.

The group said that the “considerable number of recorded incidents is due to several factors: a broadening of the sources observed, the very prolific activity in Geneva of a Holocaust denier, and an increase in the number of cases of antisemitism.”

The report went on to assert that the “conclusion is clear: in French-speaking Switzerland, antisemitism persists and continues to grow.” It emphasized that 26 of the incidents had been classified as “grave” or “serious,” compared with 13 in the same category last year.

It identified four distinct sources of antisemitic agitation: the extreme right, which expresses “hatred of Jews and other minorities on a daily basis”; Holocaust denial; conspiracy theories emerging from current issues ranging from the COVID-19 pandemic to the Russian war against Ukraine; and local events that have resulted in antisemitic outbursts, for example, a widely distributed video produced last year that attempted to break down stereotypes of the Jewish community.

A separate survey in the German and Italian-speaking parts of Switzerland noted a six percent increase in the number of antisemitic incidents last year.

The survey — conducted by the Swiss Federation of Jewish Communities (FSCI) and the Foundation against Racism and Antisemitism — noted that proponents of conspiracy theories “have in common a belief in a secret power that wants to dominate, enslave or exterminate humanity,” that leads them to focus on Jews.

The survey similarly identified the Telegram channel as a major source of antisemitism, observing that 75 percent of online antisemitic incidents took place on the platform.

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Izrael jest podzielony, ale palestyńscy terroryści biorą na cel wszystkich Żydów

ŻYDZI MODLĄ SIĘ w piątek rano na miejscu ataku terrorystycznego na ulicy Dizengoffa w Tel Awiwie. „Arabscy terroryści nigdy nie próbują zabić tylko pewnego typu Żydów”.(źródło zdjęcia: AVSHALOM SASSONI/FLASH90)

Izrael jest podzielony, ale palestyńscy terroryści biorą na cel wszystkich Żydów

Stephen M. Flatow

Tłumaczenie: Małgorzata Koraszewska

Izraelczycy są gniewni i podzieleni. Krzyczą na siebie i organizują wściekłe demonstracje. Mnożą się oskarżenia i wyzwiska. Ale po raz kolejny palestyńscy terroryści przypominają nam, że w ostatecznym rozrachunku to, co łączy Izraelczyków, jest ważniejsze niż nieporozumienia dotyczące tej lub innej propozycji politycznej.

W czwartkowy wieczór [9 marca] palestyński terrorysta podszedł do kawiarni w Tel Awiwie i zaczął strzelać. Nie strzelał do żołnierzy ani „osadników”. Próbował dokonać masakry nieuzbrojonych izraelskich cywilów siedzących w ekskluzywnej kawiarni w sercu świeckiego, politycznie lewicowego Tel Awiwu.

Tego samego wieczoru 72 km dalej, inny palestyński arabski terrorysta próbował zmasakrować izraelskich cywilów. Wsiadł do autobusu w mieście ortodoksyjnych Żydów (charedi), Beitar Illit, niedaleko Jerozolimy, i podłożył bombę. Z bomby zaczął wydobywać się dym, ale w jednym z tych niezliczonych cudów, których codziennie doświadczają Izraelczycy, urządzenie nie wybuchło natychmiast. Dało to ekspertom od usuwania bomb kluczowe minuty, których potrzebowali do jej zneutralizowania.

Gdyby niedoszły morderca w Tel Awiwie umiał strzelać celniej, nie wiadomo ilu świeckich Izraelczyków zostałoby zamordowanych. Gdyby niedoszły morderca w Beitar Illit miał większe doświadczenie w konstruowaniu bomb, wielu ortodoksyjnych Izraelczyków zostałoby zamordowanych.

Zastanówmy się przez chwilę, jak bardzo różnią się te dwa segmenty izraelskiego społeczeństwa: co noszą. Co jedzą. Ile mają dzieci. Książki, które czytają. Filmy, które oglądają (lub nie oglądają). Gdzie wyjeżdżają na wakacje. Co robią w Szabat. Przy takich miarach świeccy izraelscy Żydzi i ortodoksyjni izraelscy Żydzi są tak różni jak dzień i noc.

Ulica Dizengoffa w Tel Awiwie po strzelaninie 9 maja 2023 r. (źródło: UNITED HATZALAH‏)

Ale te różnice nie mogłyby mniej obchodzić palestyńskich terrorystów. Podobnie jak inni brutalni wrogowie narodu żydowskiego na przestrzeni dziejów, nigdy nie próbują zabić tylko określonego typu Żydów. Nie obchodzi ich, czy izraelski Żyd jest bardziej religijny, czy mniej religijny. Nie obchodzi ich, czy mieszka w Tel Awiwie, czy w placówce na wzgórzu.

Broń automatyczna, z której strzelają terroryści, bomby, które podkładają, kamienie, którymi rzucają, noże, którymi dźgają, są wymierzone we wszystkich Żydów.

Życie i śmierć: najważniejsze, co łączy Izraelczyków

Właśnie dlatego, mimo wszystkich gorących sporów społecznych i politycznych, które obecnie trawią ten kraj, Izraelczycy pozostają niezwykle zjednoczeni w najważniejszej ze wszystkich kwestii: życia i śmierci.

Jeśli chodzi o potrzebę podjęcia zdecydowanych działań przeciwko palestyńskiemu terroryzmowi arabskiemu, istnieje pełen konsensus między prawicą a lewicą. W tej kluczowej kwestii istnieje stopień jedności, jaki trudno znaleźć w jakimkolwiek innym kraju, w tym w USA.

Rozważcie, jak członkowie Knesetu głosowali nad niedawną ustawą zezwalającą na deportację skazanych terrorystów, którzy otrzymują dotacje finansowe od Autonomii Palestyńskiej.

„New York Times” opisał ustawę jako „surową”, „twardą” i produkt „skrajnie prawicowego” rządu. W rzeczywistości nowe ustawodawstwo reprezentuje centrowe, a nie prawicowe stanowisko w dzisiejszym Izraelu. Została przyjęta zadziwiającą przewagą głosów: 94 do 10.

Wśród zwolenników znalazły się główne lewicowe partie opozycyjne, Jest Przyszłość Jaira Lapida i Jedność Narodowa Benny’ego Gantza.

Posłowie z lewicowej Partii Pracy byli nieobecni na głosowaniu, ale nie dlatego, że sprzeciwiali się ustawie. „Poparliśmy projekt ustawy, kiedy został po raz pierwszy zaproponowany” – wyjaśnił rzecznik Partii Pracy. Zdecydowali się jednak nie uczestniczyć w głosowaniu w proteście przeciwko niektórym posunięciom rządu w polityce wewnętrznej.

Weźmy też pod uwagę szerokie społeczne poparcie dla „Operacji Przełamać Falę” armii izraelskiej, strategii wysyłania sił bezpieczeństwa do miast zarządzanych przez Autonomię Palestyńską w pościgu za terrorystami. Po fali strzelanin, zamachów bombowych i pchnięć nożami, w wyniku których zginęło 19 Izraelczyków na początku 2022 r., lewicowy rząd kierowany przez Naftalego Bennetta rozpoczął operację. Następca Bennetta, Jair Lapid, kontynuował akcję – przy wsparciu swoich lewicowych sojuszników, Partii Pracy i Meretz, bo ściganie terrorystów nigdy nie było stanowiskiem „prawicowym” lub „lewicowym”.

Rzecznik izraelskiej armii powiedział niedawno, że w ciągu pierwszych ośmiu miesięcy operacji Przełamać Falę (od marca do listopada 2022 r.) siły bezpieczeństwa „udaremniły około 500 ataków terrorystycznych”. Przechwyciły „co najmniej 250 sztuk broni” i „785 tysięcy dolarów w gotówce”, które miały zostać wykorzystane do sfinansowania ataków terrorystycznych. Aresztowano ponad 2500 terrorystów.

Jedynymi krytykami operacji armii są orędownicy sprawy palestyńskiej, którzy są w środowisku akademickim, mediach i grupach ekstremistycznych. Nie lubią operacji Przełamać Falę, bo ich strona przegrywa.

Może być niepokojące, gdy Izraelczycy tak gwałtownie spierają się o różnice w polityce wewnętrznej. Pocieszeniem jest jednak pamięć, że jeśli chodzi o kwestię, która liczy się najbardziej – wytępienie terroryzmu i zapewnienie przetrwania państwa żydowskiego – narodowy konsensus Izraela jest silny. Nie powinno być potrzeby ataków terrorystycznych Arabów palestyńskich w Tel Awiwie i Beitar Illit, aby przypomnieć nam o łączących nas więziach.

*Stephen Flatow – Amerykański prawnik, który zainicjował szereg procesów przeciwko Islamskiej Republice Iranu w związku ze sponsorowaniem terroryzmu przez to państwo. Jego córka zginęła w zamachu terrorystycznym w 1995 roku. Wielokrotnie pomagał rządowi USA zidentyfikować organizacje, które pośredniczyły w nielegalnym przekazywaniu pieniędzy do Iranu.

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Failed Unions

Failed Unions


Arab Americans were the test cases for mass surveillance and we let it happen.


My husband began having panic attacks. He’d pull on his orange puffer jacket, heart flailing in his chest, and walk into Prospect Park, alone in the middle of the night. I knew this wasn’t normal, but I figured his anxiety could be traced to the Lebanese Civil War, which began in 1975, when he was 2, and ended in 1990 when he was 18.

The war still gave him nightmares. Men in balaclavas had banged down the door to his family’s apartment with the butts of their guns. They’d come to drive the family out of Christian East Beirut. Some minor offense had been committed. When the family was finally settled again, my husband began weapons training in case another militia came for them in the night. He was 8.

It was easy to blame everything on the war. The war was a time bomb ticking in my husband’s heart. The war was why he woke up screaming. The war was the reason he couldn’t catch his breath.

After 9/11, NYPD detectives began knocking on our door, their guns holstered, but no less real. I answered it, once in a bath towel, but I didn’t see the connection. I’d gotten my wars mixed up. America had become the nightmare, when it was supposed to have been the dream.

In the spring of 2003, immigrants like my husband were called in to local field offices of the Immigration and Naturalization Service (INS) so that special agents could fingerprint them, photograph them, gather their financial information and conduct biographical interviews. This process was known as “special” registration—“special” because it only applied to men from Muslim countries. All across the country, male immigrants from Iran, Iraq, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, Oman, Qatar, Somalia, Tunisia, the United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait were forced to register at their local INS field offices. Once their data had been collected, it was entered into the database Congress had called for in the Patriot Act, the National Security Entry-Exit Registration System, or NSEERS. In a matter of months, it housed the data of 138,000 men. My husband was one of them.

When I drove my husband to register, I assumed it was a formality. The immigration system was in chaos after 9/11, so when the Department of Justice ordered all male immigrants from Muslim-majority countries to register, my husband and I weren’t overly alarmed. The articles we read in the paper suggested that the purpose of registration was to catch visa “overstayers.” We were assiduous about our green card paperwork, even paying lawyers we couldn’t afford to make sure it was all done correctly. And besides, even if there was something sinister about forcing all Muslim immigrants to report to the government, my husband was Catholic, from one of the oldest Maronite families in Lebanon. Whatever was happening surely didn’t apply to us.

What we didn’t know was that catching people overstaying their visas wasn’t the true endgame of registration. The real aim was to place immigrants from Muslim countries under permanent government watch. In passing the Patriot Act, Congress told the INS to take a data management system developed to stop Mexican smugglers and use it to track men from Muslim countries. But their data would need to be gathered first. That was why the Bush administration ordered men like my husband to register.

We were married a hundred days after 9/11. The fires at Ground Zero were still burning when we recited our vows.

We’d met on Sept. 12, at a diner in Brooklyn where I worked. My husband stopped in the middle of the dining room floor and stared at me. He actually pulled his sunglasses down over the bridge of his nose to get a better look. I stared back. By the end of the week, I’d told my roommate I was going to marry him.

On the day we were married, we took a car to Borough Hall in the rain. I was 22, unsure of everything, unable to explain why I was crying as I watched the gray blur of Brooklyn go by. “What if we have a sick baby?” I blurted out. My husband laughed. “Then we’ll love him,” he said.

He had dreamed of coming to America ever since he discovered a “Pat the Patriot” beach towel at a sundries shop in Cyprus. The Patriots’ famous mascot was crouched over a football in red, white, and blue, looking tough. That was all it took. He’d heard the words “New England” and known: This was the new world, where none of the old antagonisms applied, a perfect negative image of his own country, which had been torn apart by a war that stretched back millennia.

But now we lived in a country that was waging its own “crusade,” as George W. Bush called the war on terror. What did that mean for us? The sick baby was just a proxy for everything I couldn’t say. A year after our wedding, as I drove my husband to register, I was quiet and so was he.

The lawyers we couldn’t afford admonished me: Wait, watch. If it seemed like most of the men who’d entered that morning were exiting, and my husband wasn’t among them, call.

I did wait, 16 hours. When I finally saw him shambling out—stiff from a day spent sitting on the floor without access to food, water or phones—I knew better than to ask.

The news coverage of registration was paltry and missed the bigger story, which was about the state funneling people into databases in a new age of mass surveillance. As the Department of Homeland Security’s Robert Mocny put it in 2022: Your ability to hunt terrorists is “only as good as the number of names you have in your database.” Mocny was head of the Office of Biometric Identity Management at DHS following 9/11; his office administered the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT). US-VISIT was the replacement for—and at some level the rival of—NSEERS.

NSEERS was developed by John Ashcroft’s Department of Justice during President George W. Bush’s first term. As with so much after 9/11, the executive branch began exercising greater authority in areas it hadn’t previously, which meant that as far as entry-exit systems went, there were rival systems in development, and rival philosophies. Mocny called NSEERS counterproductive to the bigger goal of tracking who came and went at the border. Department of Homeland Security Secretary Tom Ridge agreed, so before US-VISIT was debuted in 2007 he hired a public relations company to sell it around the world. Americans may not have been paying attention to the technology being deployed at their borders, but everyone else was. NSEERS carried bad overtones. Mocny told me there were those within INS who felt it had placed “yellow crescents on the shoulders of Muslim males.”

The ACLU agreed. In 2011, it called NSEERS “ethnic profiling on a scale not seen since Japanese-American internment during World War II.” But it wasn’t just a question of scale. The legal framework upon which “special” registration and NSEERS were built came from legislation that was written in the wake of WWII. The Immigration and Nationality Act of 1952 allowed the attorney general (AG) to force immigrants to register with the government and provide personal and biometric data when they did. It also gave the AG the power to share that information with local and federal law enforcement. These policies were a palatable alternative to internment: no need to intern people if you could track them.

So while “special” registration and NSEERS seemed to be in line with the Patriot Act, their legal basis had been established 50 years earlier. The person at the DOJ to make this historical connection was Kris Kobach, who served as counsel to the attorney general. Kobach would go on to become Kansas secretary of state—and a member of Donald Trump’s transition team. Interagency cooperation at the border is Kobach’s issue. He sees immigration, and immigration enforcement, as being within the scope of states’ rights. NSEERS, which gave federal and local law enforcement access to the data of immigrants, was his first stab at this vision.

From the campaign trail in 2015, presidential candidate Donald Trump pledged to implement a Muslim database and was immediately compared to a Nazi, his vagueness on this point cast in absolute terms. So the maelstrom began. In 12 years, the Times wrote 32 articles about a real Muslim registry, and in one year, it churned out 84 articles about Trump’s maybe-kinda-sorta idea for one.

Trump’s campaign promise of a Muslim database wasn’t as wildly “unprecedented” (to borrow a word overused at the time) as it seemed. Indeed according to Kobach, who surely helped Trump develop his idea for the Muslim database, Trump’s plan was simply to bring NSEERS and “special” registration back. This fact was completely lost on the media.

Even if their objection to special registry came 13 years too late, Americans were right to see something nefarious in Trump’s promises. The information gathered from my husband on the day he registered was entered into two separate data management systems: the Automated Biometric Identification System (IDENT), which consolidated biometric data, and the Arrival and Departure System, ADIS, which consolidated biographical data. As time went on, the data gathered during registration was incorporated into other systems. My husband’s data is currently housed in at least five subsequent systems. This is what it means for the government to amass data at such a scale: Once logged, it never dies.

Polling suggests that as long as data collection helps stop terrorists, half of Americans are OK with it. This polling seems to assume that the data is going to be used appropriately, let alone effectively. But “special” registration didn’t result in a single terror conviction. Not one. Our privacy—and the privacy of 138,000 other families—was violated for nothing.

Part of the reason my husband and I didn’t understand what “special” registration would mean for us is because the media virtually ignored it. Even when references were made to the fact that this system was being used to track and investigate immigrants—rather than enforce immigration law—they were attributed to sources and couched in equivocal language: “critics complained that NSEERS is suspect because it seems to track Middle Eastern and South Asian immigrants almost exclusively.”

This cannot come as much of a surprise. The distance the press is supposed to keep from the institutions it covers died a quick, unequivocal death after 9/11. On more than one occasion, America’s media establishment treated the content of a White House press briefing as news to publish, rather than information to scrutinize.

That changed under Trump. The reporting was, if nothing else, less coy. Just a few days after he was elected, I read an article in Reuters about his next moves. It turned out his call for a Muslim database would be easy enough to realize. The plan was to use what was already there: NSEERS, the Muslim database built back in 2002.

In the years after registration, my husband and I were investigated by ICE, the CIA, and the NYPD. Detectives from NYPD’s Counterterrorism Bureau all but banged down our door one morning; and they had all gotten my husband’s name, and whatever else they had on him, from NSEERS. Once his data had been entered into it, it gave any government agency with a paranoid streak access to us. And they all had paranoid streaks after 9/11, the biggest national security failure in U.S. history. The FBI, the CIA, and the INS had all failed to “connect the dots,” in the words of Congress’ 9/11 Commission. Connecting the dots would be the priority going forward. If every agency—local and federal—had access to the same leads, terrorists would never slip through the cracks again. This was the thinking after 9/11, and it left my husband and me open to an endless round of investigations.

The investigations were unsettling. We were told by an INS agent that our case had been taken over by ICE, and then the CIA, which made us wonder about our privacy. Was email safe? Our cellphones? Could we speak inside our apartment, or should we take a walk if we needed to discuss something private? A man who doesn’t lose his reason over certain things can have no reason to lose, Sigmund Freud wrote of paranoia in 1895. Years later, when Edward Snowden leaked that the NSA collected the metadata of American citizens, I shrugged; I’d known something to that effect was happening all along.

But even I was dumbfounded when, in October 2005, two detectives from the NYPD Counterterror Bureau turned up at our home. I was in the shower when I heard a knock so forceful it rattled our door on its hinges. I threw on a towel and ran to it to find two middle-aged women in pantsuits standing on our landing.

“Battin’ a thousand,” one laughed as she glanced at the other.

Her partner looked at me: “We have your husband in custody,” she said, then flashed a badge.

They asked about our finances, which were pretty pathetic. We’d put most of our payments to our immigration lawyers on credit cards, so we were always being harassed by creditors about debts we had no hope of repaying. It’s hard for me to imagine that in the great edifice of data the INS built in the spring of 2003 these facts were not on file. But I answered their questions anyway. Then I answered the ones about my husband’s recent visit to his mother in Beirut. I explained his recent trip to Nashville to record an album with some singer- songwriter he’d met through friends. What terrorist goes to Nashville? I thought. But the obviousness of the situation—the grad student and musician up to their ears in debt, living in a fall-down apartment and making occasional trips to Music City—seemed lost on them.

A day later, a chill went up my spine when I saw issues of the New York Daily News in my local bodega, with a headline that read: “SUBWAY TERROR: BOMBS IN STROLLERS.” ‘Specific threat’ triggers massive NYPD mobilization, read the tagline.

The situation suddenly became clear: In the little time the NYPD had before the media broke the story, they decided to visit my husband and me.

“What I want to know,” our lawyer said when I called him, “is why your husband is on a short list of terror suspects that the NYPD has.” I wanted to know too.

So I asked—at an INS interview the following week. The agent interviewing us that day, a young woman with a long, curly ponytail and acne on her cheeks, turned tomato red.


“No,” I said after a long pause. This turn of events—you ask an agent of the state a simple question, and she accuses you of being a terrorist—didn’t figure in my idea of America. Was this now the kind of country where you might be presumed guilty simply on the basis of your last name? I was beginning to see that it was, and that it wasn’t some magical alternative to Lebanon: There were endless wars and people with guns at the door here too.

‘What I want to know,’ our lawyer asked when I called him, ‘is why your husband is on a short list of terror suspects that the NYPD has.’ I wanted to know too.

Long before the cops banged down our door that morning in October of 2005, attitudes toward the war had begun to shift. Press outlets that had formerly been rah-rah for the 2003 invasion of Iraq scrambled to condemn the photos leaked from Abu Ghraib. George W. Bush’s Attorney General John Ashcroft, laid up in a hospital with acute pancreatitis, roused himself sufficiently to refuse to reauthorize the president’s surveillance program. And the Justice Department, of all agencies, commissioned a study by the Vera Institute on community relations between law enforcement and Arab Americans after 9/11.

The study found what you’d expect: Arab Americans feared their government much more than they did their fellow citizens. A lot was made of hate crimes after the attacks. Dumb Americans terrorizing people who “looked Muslim.” But it was their government Arab Americans feared most. When asked why, they reported that fears related to immigration, racial profiling, the Patriot Act, detentions and deportations and “special” registration itself all outweighed their fear of hate crimes.

Interestingly, the study limited its focus to the perceptions and experiences of Arab Americans—rather than all Muslims—in order to allow for a deeper understanding of the impact on one group, and as the writers point out, two-thirds of Arab Americans are Christian. So ICE, the FBI, the CIA, all the agencies that investigated Arab Americans during those years were looking primarily at Christians, when the goal was to stop jihadist terrorist attacks.

In all our interviews at the INS, we encountered one sympathetic agent. She had an Arab last name, smiled at us immediately, and worked at the INS field office in Jamaica, Queens.

“People who come to see me are usually pretty frustrated,” she said when I asked when this process of interviewing us every few months would end. My husband and I had been married five years by that point; we’d been dealing with his citizenship case the whole time. “I’m sorry,” she went on. “All I can see here is that your case was taken over by ICE a while back. I know someone there. I can arrange an interview with him, if you like.”

A few weeks later, we found ourselves in an unmarked building in downtown Manhattan. “Look,” said our interviewer, who had a husky, red face and muscles bulging under his suit. “There’s not a lot I can tell you. Your files were requisitioned by the CIA a few months ago. That’s all I know.”

A man who does not lose his reason over certain things can have no reason to lose. I dropped out of graduate school. My husband went for night rambles. I began sleeping all the time. The crusade had come for us in the end. I couldn’t stand to think about it so I slept.

For my husband, it was different. America had been the dream that helped him survive the Lebanese Civil War. He had a place to go, a reason not to slip into the war’s drugged out aftermath. Would he survive losing the dream he’d held onto for so long? When he told me just a few months after we divorced that he’d had a “small heart attack,” I didn’t need to ask why. I knew America had broken his heart.

A year and a half after our interview with the ICE agent, my husband’s green card application was approved. No reason had been given for its delay, and no reason was given for its approval.

We went out for Greek food when we heard. Octopus legs, lemon potatoes. Greek had always been an emotional touchpoint for us. It was in Cyprus, while living on the Greek side, that my husband had decided to immigrate here. But the miracle had come too late. By then, we’d already begun trying to figure out how to divvy up our life.

The number of people who obtained legal permanent resident status in America dropped precipitously in 2003, the year “special” registration took effect. This is true of immigrants from every country, not just those from countries on the registration list, which suggests that the INS was in disarray that year, unable to process citizenship applications at the rates it had previously. However, immigrants from the rest of the world saw their numbers go back up again immediately, in 2004. For immigrants from Muslim-majority countries, the decline started earlier, in 2002, when “special” registration was announced, and it lasted longer, not rebounding until 2006.

People died waiting, as one lawyer told me. They fled to Canada. Others simply gave up. There was no grand, precipitating event. We just stopped being able to hold on in the end.

How do facts so essential to our understanding of the war on terror, the longest-running war in American history, get omitted from the public record? If you look at all the reporting from that period—WMDs, the media’s unwillingness to take stock of its own systemic failings on that score, the Times’ bizarre refusal to use the word torture—it’s clear the media lost the plot. If the media’s ideal is publishing the “first rough draft of history,” editors began making compromises with that ideal almost as soon as America was attacked.

But as far as “special” registration went, the media didn’t just fail to get the story right; it failed to tell it at all. In fact, I’m not even sure anyone in or outside the media understood that there had already been a Muslim database for nine long years before Trump announced he wanted one. Trump’s ideas were never described by reporters as a reprise of what his predecessors had done, but rather as the machinations of the orange Antichrist, thoroughly at odds with the decent America of Bush and Obama.

Under pressure from human rights groups, Obama finally dismantled NSEERS in 2016, just days before Trump took office. The fact that NSEERS actually was a Muslim database was, again, lost on everyone. “We can’t risk giving President-elect Trump the tools to create an unconstitutional religious registry,” New York Attorney General Eric Schneiderman said in urging Obama to remove NSEERS. “We can never allow our nation to return to the dark days of Japanese internment.” So much for the first rough draft of history.

Americans still have not come to terms with the underlying aim of programs like NSEERS, which were never just about restricting immigration or preventing terrorism. In targeting Arab men like my husband, the U.S. government used a vulnerable population to test out the systems of mass surveillance and data collection that would later be routinely applied to all American citizens. That was the real story, but it’s one that has barely been told.

It’s hard for me not to see every event of my life as having been shaped by the Bush administration’s policies and the media’s failure to report on them. My husband and I divorced in 2009. I drifted without him. I moved to California, studied poetry. There was a lot of yoga, hikes in the Oakland hills. It was a poor girl’s version of Eat, Pray, Love without the big payoff at the end. Meanwhile, my ex moved back to Beirut. There were a few good years when the country was stable, but before long Lebanon’s economy collapsed due to the stunning graft and corruption of its leadership. It grew poverty-stricken. My ex began telling me he was bartering to eat. The hours during which the electricity worked shrank. We Zoomed by candlelight.

He will always be a refugee now that Lebanon has fallen so spectacularly apart. He tells me he wants to come back, that he wants to “come home.” I ask him if he’s really sure about that.

“I still love the nation,” he recently told me. “I love the people, and what America has given me I don’t think anywhere in the world I could have received. I was privileged to have lived in Boston and then have a decade of my life spent in New York, that quality of living and the people around me. It is who I am as much as the (Lebanese Civil) War is. It’s the balance. Those 14 years there balanced the war, and that’s why I always say America is my home. It’s not a country, it’s my home, it’s my safety, it’s my security, it’s my growth. It’s everything good that I have. Lebanon is the fighter in me, which I love, but America is my home.”

The irony is I’m less and less sure it’s mine.

Justine el-Khazen is a writer living in Brooklyn, New York.

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Yariv Levin: I will disobey if High Court rules against judicial reform billYariv Levin: I will disobey if High Court rules against judicial reform bill

Yariv Levin: I will disobey if High Court rules against judicial reform bill


“If the justice minister refuses to obey the law, why should the citizens obey the government,” opposition head Yair Lapid argued.

.Justice Minister Yariv Levin at a discussion and a vote on the government’s judicial overhaul plans in the assembly hall of the Knesset, the Israeli parliament in Jerusalem, on February 20, 2023 / (photo credit: YONATAN SINDEL/FLASH90)

If the High Court of Justice strikes down the bill to change the makeup of the Judicial Appointment Committee which gives the coalition the ability to appoint two justices per term to the High Court without the opposition’s approval, Justice Minister Yariv Levin will not respect the ruling, Levin said in an interview on Channel 14 on Monday night, soon after the Likud decided to support the bill and pass it before the Knesset recesses on April 2.

Such a ruling would be “crossing a red line and we certainly will not accept it,” Levin said.

“We legislated and implemented without fear the mandate that the public gave us … this democratic resolution will be respected, and we will have a method for appointing judges that is fair, just and includes everyone,” Levin said.

Opposition leader MK Yair Lapid responded soon after, “This is it, the masks have come down. The gun is on the table. The real prime minister Yariv Levin is bringing us into complete chaos and a constitutional crisis with no return. If the justice minister calls on the government not to obey the law, why should the citizens of Israel obey the government?”

Previous justice minister, National Unity MK Gideon Sa’ar, said that “Levin’s threat against the court crosses a red line. It is unprecedented that the justice minister says in advance that he will not respect a ruling that is not to his liking. The complete opposite of Menahem Begin’s path. A government that does not respect a court ruling loses its legitimacy,” Sa’ar said.

Benjamin Netanyahu with Justice Minister Yariv Levin during a discussion and a vote in the assembly hall of the Knesset, the Israeli parliament in Jerusalem, on March 6, 2023 (credit: Yonatan Sindel/Flash90/Reuters)

Likud: High Court has no reason to intervene

The Likud put out a statement on Tuesday.

“The absurd discussion about constitutional crisis only emphasizes how necessary the judicial reform is in order to return the proper balance to the government branches.

Economy Minister Nir Barkat said on Tuesday that while he supported the bill, “I do not support in any way blindly walking into a constitutional crisis in Israel.”

If the High Court strikes down the bill, Barkat said he will respect the ruling to the letter.

“I will not lend my vote or hand to chaos in which the citizens of Israel lose faith in the government and judicial system simultaneously,” he said.

According to the new proposal, which was first presented by Knesset Constitution, Law and Justice Committee chairman MK Simcha Rothman on Sunday evening, adapted by all of the coalition leaders late Sunday night and approved by the Likud and Religious Zionist Party in faction votes on Monday, the Judicial Appointments Committee will include 11 members instead of the current nine, while six out of the eleven will come from coalition parties – three ministers and three Knesset members.

The remaining five are two opposition Knesset members and three judges, one of whom is the Chief Justice.

For appointments to the High Court, the other two justices would also be High Court judges, but for lower courts, the two would be replaced by a district court president and a magistrate’s court president. Appointments for lower courts require a majority of seven out of eleven, but High Court appointments would require a simple majority of six.

This gives the coalition an automatic majority, but the coalition will only be able to choose two High Court Justices per term without the approval of the opposition. A third appointment in a given Knesset term requires the approval of an opposition MK, and a fourth appointment also requires the approval of one of the judges.

According to Israeli Law, High Court judges retire automatically when they turn 70. Two judges, Chief Justice Esther Hayut and Justice Anat Baron, are scheduled to retire in October. The coalition will thus control the appointments to both vacancies. The following vacancy is scheduled a year later, in October 2024.

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