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Bar’s decision lacked transparency

Virginia Lawyers Weekly//March 31, 2015

Bar’s decision lacked transparency

Virginia Lawyers Weekly//March 31, 2015

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

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

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