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Bar’s decision lacked transparency

Editor’s note: This open letter to VSB President Kevin Martingayle was shared with Virginia Lawyers Weekly and posted here at our website March 31.

Re:  Your decision to cancel the mid-year meeting in Israel

Dear President Martingayle,

Along with many others I was shocked, outraged and deeply disappointed to receive your blast e-mail late Friday evening announcing a previously undisclosed intention by the leadership of the VSB to cancel the planned, mid-year meeting in Jerusalem, Israel.  The substance of the decision, the secretive manner in which it was arrived at and the cavalier manner in which it was announced all merit condemnation and call into question your continued ability to serve as President of the Bar.

According to your email, the decision to cancel the planned trip was based on “objections” by “certain members of the Virginia State Bar and other individuals.”  Neither the Bar members nor the “certain other individuals,” presumably not Bar members, are identified. Indeed, this entire decision is cloaked in a veil of secrecy and opacity unbecoming of the Bar. Had you provided any measure of disclosure regarding your decision, you would have advised VSB members that the decision was based on a petition that, at last report, had 33 signatures. (The Virginia State Bar has over 50,000 members).  The petition, although citing reports form the US State Department regarding border security measures in Israel, reaches inflammatory conclusions regarding discrimination based on citations to such marginal, committed anti-Israeli sources as the website “Electronic Intifada”.

Choosing to announce it late on a Friday evening and without any prior hint that the matter was even being considered and without any input from VSB members, speaks loudly to the underlying discomfort that VSB leadership must have (and should have) felt at adopting this position.  What exactly was the influence that the 33 signatories to the petition had over the VSB leadership – not to mention the “others” who presumably are not even constituents of the  VSB?  The VSB is an arm of the Virginia Supreme Court and the Commonwealth of Virginia. The Commonwealth has a state sponsored commission to promote the expansion of Virginia/Israeli ties (i.e., The Virginia Israel Advisory Board).  What exactly was the mandate that the VSB felt it was under to unilaterally sever the ties of the Virginia mandatory bar association with the State of Israel and announce it as a fait accompli?  Wouldn’t it have been more appropriate, if the issue was to be considered at all, to publicly announce it, and put in place a method for debating and ultimately voting to secure the clear sense of the membership of the VSB?  Instead, the decision was made in secret, with no disclosure in the letter announcing the decision as to what the thought process (if any) had been, who had been involved and what competing arguments (if any) were considered.  Nothing.  Just an intentionally vague communique that reeked of secrecy, politics and fear of full disclosure and debate.

Many of us are left to wonder if this decision is intended as a deliberate endorsement of the “Boycott, Divestment, and Sanctions” (BDS) movement targeting the state of Israel. Certain elements—the complete lack of transparency or open deliberation, the late Friday afternoon announcement, and the reliance on unabashed organs of the BDS movement like “Electronic Intifada”—point in that direction. The BDS campaign is biased, unapologetically one-sided, naïve at best and, other than the reckless participation by an established group such as the VSB, historically viewed as marginal, unsuccessful and for many who promote it, anti-Semitism in a thinly disguised, modern costume.

If endorsing the BDS campaign was your intention, then the VSB has elected to join hands with a truly radical movement whose openly declared ambition is the end of the state of Israel. We know that the BDS movement has no concern for promoting any objective, fairly applied standard of concern over “unacceptable” practices to any state or country other than Israel and the question is always, “why is that the case?”  Sadly, history tells us that the concern is not over humanitarian or moral issues at all but is thinly disguised anti-Jewish, anti-Semitic and anti- Israel propaganda. And with respect to the BDS movement in particular, there is no need to rely on historical inference. From a resolution urging expulsion of all Jewish students at a South African university, to the removal of all Israeli academics from a journal in the UK, to efforts to block the appointment of a Jewish student to a university government position in California, to accusations that Jewish organizations were funded by money supposedly embezzled from failing financial firms, the BDS movement has been implicated in naked anti-Semitism on too many occasions across too long a period for there to remain any doubt about its character. In each of the above situations BDS defenders rushed to complain that it was only being accused of anti-Semitism because they were “critical of Israel.” This is nonsense.  Being part of an organization like the VSB which as you state is “an agency that strives for maximum inclusion and equality” means having at least a minimal understanding that deciding to stand shoulder-to-shoulder with a movement that the global Jewish community has long warned stands as amongst the primary purveyors of anti-Semitic hatred, is a serious, indeed defining, step for the VSB.  Did you give any thought as to whether the BDS position fairly reflects the views and beliefs of your membership?  Or were you simply pandering to the 33 members and “others” who for whatever reason had your ear?

Your letter references “unacceptable discriminatory policies and practices pertaining to border security” in Israel.  These “policies and practices,” according to your letter, “affect travelers to the nation” Is it really your contention (and now that of the VSB) that meetings are not held on a regular basis in Israel by hundreds of groups – including the ABA and academic groups with Arab participants? What did you do to determine whether the proposed VSB meeting would, in fact, have faced any “discrimination” with regard to access by any and all participants? With whom did you speak before reaching your conclusion that there is in fact “unacceptable discriminatory practices?” (Your Allegation that the Israeli Embassy confirmed that some VSB participants might encounter problems entering the country is patently false – as now confirmed by the admission of incoming VSB President Weiner that no such statement was ever made by the Israeli Embassy (See 3/31/15 online post by Michael Krauss in Forbes reporting on an email exchange between Weiner and Bill Jacobson at http://www.forbes.com/sites/michaelkrauss/2015/03/31/shame-upon-shame-the-virginia-state-bar-leadership-further-insults-its-members/)

While there is no question but that Israel has strict policies and procedures regarding access to the country, is it really your position (and now the position of the VSB) that such measures are so obviously unnecessary to protect legitimate security concerns such that they can be dismissed as a mere pretext for discrimination? Do you similarly demand that all policies and procedures and laws and social mores of each state in the United States and each country overseas in which the VSB holds meetings or sponsors trips be vetted for “objectionable” content?  Or is it just Israel?   Israel remains the most vibrant democracy in the Middle East.  The Arab-Israeli political party coalition now occupies the third largest voting bloc in the Knesset. While that society is not perfect and many of us do not agree with the policies of the present Israeli administration (and feel free to say so), anyone who maintains a modicum of objectivity and is not fronting for an ideologically anti-Israel position, will recognize that Israeli policies are borne of the real politick faced by that country. If they are more stringent and focused than those of Switzerland or Sweden or Canada, it is because the reality of life is different in Israel than in most other places.

This, of course, raises the other possibility—that the endorsement was unintentional, and that you did not realize what this decision would mean in the context of placing the VSB imprimatur on a global movement seeking to isolate and dismantle the world’s sole Jewish state. This possibility, too, does not inspire confidence. Had you simply raised this issue publicly with the Virginia Bar, deliberated openly rather than issue a back-office decree, these concerns would have raised and the Bar could have avoided this catastrophe altogether. To be blunt, this is why transparency matters—so one does not blunder into controversies that could easily be avoided, so that genuine problems can be resolved in a manner attentive to the concerns of all the relevant stakeholders, and so that when the decision is finally made everybody can feel that their voice was heard and their views fairly considered. That did not occur here, by all appearances because you knew that your decision would be met with justified outrage.

By adopting this position, the VSB has jumped with both feet into the most extreme edges of the political spectrum on the Israeli/Palestinian conflict.  Either it intended this result, or it didn’t. Neither possibility has anything positive to say about VSB leadership. And regardless of what your intentions were, the VSB, by aligning itself with the BDS movement which seeks to isolate Israel – and only Israel –  has instead succeeded in isolating itself. Although it did not have the courage to debate the issue before deciding, the position it has taken is far removed from the mainstream of public opinion in this country and, without any doubt that of the Commonwealth of Virginia and the rank and file VSB members.

Finally. It is astounding that instead of issuing a simple and forthright apology for an ill-considered decision, you have chosen to “double-down” by issuing a second letter which makes the patently absurd statement that “this was not a political decision,” is being “mislabeled” as a boycott and was really based on a bland fact of insufficient participation..  Who, exactly, do you think you are talking to?  Where is there any mention in your initial letter of “insufficient participation” as the reason for your decision?   If that really was the reason, why did you not simply wait a few days until the registration deadline of April 1 and then cancel for that understandable and non-political reason?  It is an insult to the intelligence and basic commons-sense of every VSB member who read your letters to suggest that your decision to cancel a planned meeting for the sole stated reason that you do not want to associate the Bar with allegedly discriminatory practices in “not a political statement” – or is “not a boycott.”  Choose the words you want, your actions speak for themselves and constitute a de facto endorsement of the extreme BDS agenda.

It is beyond sad that, if allowed to stand, this will be the legacy of the VSB – and of the Martingayle administration in particular.  It is outrageous form the point of view that the VSB is a mandatory membership organization.  As a practicing attorney, I am obligated to be a member.  I am obligated to pay dues to support the policies and programs administered by you and your administration.  But, absent a clear and unequivocal apology and retraction,  I, along with many others I am sure, will now do all we can to distance ourselves from the VSB and to cease any and all participation in VSB programs.  It is simply no longer an association that merits the support of its members.

Shame on you President Martingayle and on the very small clique of radical supporters with whom you have chosen to cast your lot and reputation  – and by coerced reference, the lot and reputation of the VSB.

J. Jonathan Schraub
McLean

2 comments

  1. I read your open letter with great interest. Sadly, I found it lacking in balance. There was not a single mention that the program was woefully undersubscribed. 17 VSB members had posted deposits, and a minimum of 60 subscribers were needed. Since the program had to “pay for itself”, a legally binding requirement of such VSB programs, that deserved mention. Of course, had you raised that issue it would have diluted the venom which followed.

    The venom?

    You accused the bar leadership of embracing “marginal, committed anti-Israel sources” to support its decision, sources which embraced “anti-Semitism in a thinly disguised, modern costume”. Linking the leadership’s decision to the Boycott, Divestment and Sanctions (BDS) movement, despite the absence of any such linkage” you accused the VSB of standing “shoulder to shoulder with a movement …(which) stands as amongst the primary purveyors of anti-Semitic hatred”.

    In a “Comment” to the VLW story about the cancellation I suggested that the critics of the cancellation might be better served by inquiring into why this trip was so under subscribed. I can give you one member’s view.

    Prime Minister Netanyahu talked me out of going. His two facedness on settlements, his use of the U.S. House of Representatives as a campaign foil, his election eve hostility to Arab voters, his renunciation of his earlier two state solution pledge, and his aggressive opposition to a potential peace deal with Iran while the negotiations were in progress marked him, and derivatively the country which re-elected him, as more interested in conflict than in finding peaceful solutions. I chose not to honor him or his country at this time.

    You owe Kevin Martingayle and Ed Weiner an apology. They are honorable men doing a difficult job, and were obligated by law and policy to cancel a program that would not have been financially self-sufficient. You should have acknowledged that, whether it served your vitriol or not. You did not, and in failing to do so reminded us why peace in the Middle East is so illusive.

  2. April 1, 2015

    Virginia State Bar Association
    Mr. Kevin E. Martingayle, President
    1111 East Main Street, Suite 700
    Richmond, VA 23219-3565

    Dear Mr. Martingayle,

    We write to commend the Virginia State Bar Association for its decision to cancel its Midyear Legal Seminar in Jerusalem. By cancelling the planned seminar, the Virginia State Bar Association has reaffirmed its commitment to the principles of equality enshrined in U.S. law.

    In thanking the Virginia State Bar Association, we agree with the sentiments expressed by Representative Keith Ellison in 2013 when he stated, “American citizens deserve to travel without fear of being turned away based on their race, religion, or countries they have visited.”

    Israel’s routine discrimination against U.S. citizens entering Israel and the occupied Palestinian territory is both well documented and ongoing. In the process of denying entry to U.S. citizens, Israel often subjects them to humiliating searches, intensive interrogations, and invasions of personal privacy, including demanding access to private email accounts.

    Those affected by Israel’s policies include teachers, college students, world-renowned university professors, architects, clergy, interfaith delegations, people visiting sick relatives, married couples giving birth, humanitarian workers, human rights monitors, and descendants of signers of the U.S. constitution. In recent years, Israel’s refusal to end its discrimination against U.S. citizens prevented it from entering the Visa Waiver Program and prompted strong condemnations from lawmakers, the administration, and human rights organizations.

    In March of 2014, State Department Spokeswoman Jen Psaki said, “The Department of Homeland Security and State remain concerned with the unequal treatment that Palestinian Americans and other Americans of Middle Eastern origin experience at Israel’s border and checkpoints.”

    In 2013, sixteen Members of Congress wrote to then-Israeli Ambassador Oren, saying, “we are concerned that Israeli border officials are disproportionally singling out, detaining, and denying entry to Arab and Muslim Americans.” In their letter, Members of Congress quoted a spokesperson for Former Secretary of State Condoleezza Rice, who said, “we expect all American citizens to be accorded the rights that any other American citizen would be accorded…there are no second classes.”

    As an association that prides itself on diversity and respect for equal rights, members of the Virginia State Bar Association should reasonably expect to have their civil rights upheld in the course of pursuing professional development opportunities. As you referenced in your cancellation notification, one additional issue with the planned seminar was the insufficient number of individuals who had signed-up to attend. In all likelihood, the low participation rate reflected a justifiable reluctance among practicing attorneys to subject themselves to mistreatment based on their race, religion, or political opinions. Had the gathering occurred as planned, some members of Virginia’s esteemed bar would have undoubtedly suffered discrimination and humiliation at the hands of Israeli border officials and possibly been denied entry outright.

    Furthermore, given that membership in the Virginia State Bar Association is required for all practicing attorneys in the state, it is incumbent upon the association to avoid activities which may inherently discriminate against its members. Indeed, such action is required under the Virginia Human Rights Act and federal statutes governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, and disability.

    Again, we commend the Virginia State Bar Association for its commitment to upholding the civil rights of its diverse membership. We look forward to the day when everyone living in Israel/Palestine will enjoy equal treatment under the law regardless of race or religion; and all who desire to visit may do so without fear of discrimination or humiliation.

    Sincerely,

    American Muslims for Palestine
    Christian Peacemaker Teams – Palestine
    Friends of Sabeel North America
    Institute for Policy Studies – New Internationalism Project
    Jewish Voice for Peace
    Lutherans for Justice in the Holy Land
    Methodist Federation for Social Action
    National Lawyers Guild – International Committee
    Palestine Solidarity Legal Support
    Peace Action
    United Methodist Kairos Response
    US Campaign to End the Israeli Occupation
    US Palestinian Community Network

    Local and Regional Organizations:
    14 Friends of Palestine
    Al-Nakba Awareness Project
    Bay Area Women in Black
    Birmingham Peace Project
    Bryn Mawr Peace Coalition
    Cape Codders for Peace and Justice
    Carolina Peace Resource Center
    Citizens for Justice in the Middle East – Kansas City
    Coloradans for Justice in Palestine
    Committee for Justice in Palestine at The Ohio State University
    Committee for Palestinian Rights
    Corvallis-Albany Friends of Middle East Peace
    Friends of Palestine – Wisconsin
    Hilton Head for Peace
    Interfaith Council for Peace in the Middle East
    Israel-Palestine Task Force, California Nevada Conference, United Methodist Church
    Jewish Voice for Peace – Bay Area Chapter
    Jewish Voice for Peace – Boston Chapter
    Jewish Voice for Peace – DC Metro Chapter
    Jewish Voice for Peace – St. Louis Chapter
    Massachusetts Peace Action
    MidEast: Just Peace
    Minnesota Break the Bonds Campaign
    Peace for Palestine – West Boston
    St. Louis Palestine Solidarity Committee
    Upper New York United Methodist Task Force on Israel Palestine
    Vancouver for Peace

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