Prosecutorial Indiscretion

On February 8, 2010, Israel's ambassador to the US, Michael Oren, rose to speak before a crowd of students and local residents gathered at the University of California, Irvine. But not everybody in attendance was there to hear what he had to say.

As is well known by now, a group of students from UCI's Muslim Student Union (along with some of their peers from UC Riverside) stood up one at a time to shout down Ambassador Oren, in accordance with a plan the group had prepared in advance. They were successful: Oren was unable to continue with his remarks until the last of the eleven "activists" had been led from the hall in handcuffs.

The University, having long remained silent despite numerous instances of hostile behavior on the part of the MSU, finally took action. The administration banned the MSU from campus for one year (later shortening the already minimal suspension to a single academic quarter). Faced with overwhelming outrage from the Jewish community, Orange County DA Tony Rackauckas filed charges against the eleven participants for "disrupting a public meeting" and for conspiring to do so. The students (save one who had earlier agreed to a plea bargain) were recently convicted and sentenced to 56 hours of community service, probation, and a token fine.

Victory? Maybe. But I tend to agree with noted Constitutional scholar and dean of UCI's law school Erwin Chemerinsky, who wrote:

Unless there is harm to persons or property–or a serious threat of this–district attorneys are almost always content to leave discipline to school authorities. This is exactly what Rackauckas should have done. No one was hurt, and no property was damaged. After the disruptive students were escorted away, Ambassador Oren finished his speech. The students acted wrongly, and they were punished by the campus; there was no need for anything more.

Dr. Chemerinsky goes on to conclude that the DA "failed... to do justice". Here we part ways: there is no question that justice was done. The students broke the law and were arrested, tried by a jury, and properly convicted. But in his main argument, that Rackauckas should have exercised his discretion to avoid filing charges in the first place, Chemerinsky is correct.

The dean's primary interest may be the intrusion of law enforcement into internal University matters. But I'm more concerned with the megaphone that the prosecution has put into the hands of MSU and their supporters. Thanks to the trial, the self-described "Irvine 11" have become the darlings of the far left, anti-Israel, pro-Hamas mobs. Coverage of the trial and verdict has gone global, from the Jerusalem Post to the New York Times to al Jazeera. Most of this coverage inclines favorably towards the students, who have engaged in a relentless publicity campaign, making hay while the sun shines.

It's hard to blame those who view the "Irvine 11" sympathetically. Yes, the kids are bullies, and anti-Semitic bullies at that. But my own kids will be in college very soon, and it seems to me that if they were to get arrested and tried for shouting at a lecture, I would be outraged. It would matter little what agenda they were promoting—such questions would be eclipsed by the seemingly greater injustice of the prosecutors' abuse of discretion. It shouldn't surprise us then when the MSU kids' families and community respond in the same way.

This didn't have to happen. Without a trial, there are no op-eds in national and international journals, no speaking engagements before crowded mosques, no fundraising letters hinting darkly at the justice-perverting power of "the Israel lobby". Without a trial, there are no new martyrs inspiring the enemies of Israel and America. Without a trial, the event is local, the consequences local, and the media coverage local.

We have only ourselves to blame. The Orange County Jewish community, in its appropriate but overwrought outrage at the MSU's frequent thuggish behavior, has played right into the hands of our opponents. In exchange for the dim comfort offered by the convictions, we have handed our enemies two invaluable assets: a cause célèbre and a set of attractive young icons. If this is victory, it is a Pyrrhic one at best.

When will we learn? Some anti-Israel or anti-Semitic incidents, galling though they may be, simply do not merit a sustained, pugnacious response. Nuance, too, has its place. Discretion has its place. And, frankly, simple good judgment has its place as well.

There are times when a quiet conversation will accomplish far more than a public prosecution. Irritating and offensive though it was, the UCI incident was one of those occasions.

For Randall

I've been told that each time its web is destroyed, the spider rebuilds it with less precision, less symmetry. Eventually the web barely resembles its original design.

Randall Menter (ז"ל ( 1964-2011

My world was recently shattered by the sudden and unexpected death of my brother on his 47th birthday. Losing Randall only two weeks before the tenth anniversary of the September 11th attacks was especially cruel, as that event has special meaning for the two of us. I'd looked forward—no, that's not exactly right—I'd planned to spend some time with him on the anniversary, perhaps buying him a drink or two to thank him for what he had done for me a decade earlier.

Instead, I spent that day mourning him, mourning the memory of the attacks, mourning the contentment and balance my brother had helped create in my life.

I was unprepared for the devastation of this event, and its consequences for the rest of my family. And so, as has been the habit among Jews for thousands of years, I sought solace and guidance in the experiences of generations past.

Rabbi Moshe ben Maimon (1135-1204 CE), known generally as Maimonides or the Rambam, lived, worked and taught in Egypt. His family had been chased out of Spain by Moslem conquerers, and he briefly lived in Morocco and Israel before settling in the great medieval Egyptian port of Alexandria. A rabbi, community leader, and writer, the Rambam is today considered to have been one of the greatest exegetes and philosophers in all of Jewish history.

The Rambam was able to dedicate himself to his studies and writings thanks to the financial support of his younger brother David, a businessman. In that period, Jews enjoyed a considerable advantage as international merchants, as they could travel almost anywhere and find Jewish trading partners who spoke the same language and held the same traditions. It was also not unusual for one family member to support another who spent his days studying Torah (though, as a side note, it would have been rare to find somebody studying full time at the expense of the greater community, an all-too common phenomenon in the Israeli and even US Orthodox communities of today).

Tragically, when the Rambam was in his 40s—secure in his lifestyle and comfortable in the love and support of his brother—David was lost at sea. Moshe was bereft, inconsolable. Years afterward, he wrote to a friend:

The greatest misfortune that has befallen me during my entire life—worse than anything else—was the demise of [David,] the saint, may his memory be blessed, who drowned in the Indian sea, carrying much money belonging to me, him, and to others, and left with me a little daughter and a widow. On the day I received that terrible news I fell ill and remained in bed for about a year, suffering from a sore boil, fever, and depression, and was almost given up. About eight years have passed, but I am still mourning and unable to accept consolation. And how should I console myself? He grew up on my knees, he was my brother, [and] he was my student.

And yet, by the time the Rambam wrote these words, he had made significant changes to his life, changes whose effects would be felt throughout the world and across history. For, inasmuch as David's sudden death left Moshe in need of financial support, he took advantage of the medical training he had undergone earlier and became a practicing doctor. Due to his brilliance, and his incredibly hard work, the Rambam eventually rose to the position of personal physician to the Egyptian sultan and royal family. Nearly as prolific in his medical writings as in his philosophical and religious works, the Rambam influenced the philosophy and practice of medicine for centuries after his death, and is still widely studied and quoted today.

I find Rambam's experience relevant and comforting, and beyond that, instructive. I have taken to heart some important lessons from the Rambam's response to his tragedy:

• It is permitted to mourn. This may seem obvious to a 21st century American reader, but it has not been true of all times and all cultures. Even in our society we talk of "celebrating a life", but when that life has been cut short, it seems to me to be more appropriate to mourn what has been lost than it is to "celebrate" the incomplete story, the unfulfilled potential.
• One should let their mourning run its natural course. If even as great a figure as the Rambam spent a year in bed mourning the loss of his brother, who am I to think I might recover more quickly?
• One may mourn not only the loss of a loved one, but the loss of a familiar and comforting lifestyle as well. David left enormous burdens for his brother to confront, including a wife and child, and business debts. Moshe's life was clearly going to become much harder in every way imaginable, at an age when he had long since settled into a comfortable routine. The Rambam found himself straining to accept and bear this additional load even as he mourned the loss of his brother whom he had loved so much.

The death of his brother signaled the irreversible loss of the Rambam's cherished way of life. The same is true for me and other members of my family. So the most important thing I have learned from the experience of the Rambam is this: if we give ourselves both the permission and the time to mourn, we can try to construct meaningful new lives even as we grieve for the loss of the old.

Like the spider's web, my rebuilt life will not be quite as perfect as its earlier incarnation. But while my younger brother's life has been cruelly and prematurely taken, my family and I remain, our previous responsibilities intact, our additional new burdens weighing heavily on us. I miss my brother; I will miss him every day of my life, a life I hope will honor him through accomplishments and good works inspired by his memory.

Looks Like Rain

You're at work. Today is Sunday, a normal work day here in Israel. But this is no normal Sunday.

Every hour, people in their cars, on the street, and at home stop what they are doing and listen intently to the radio.  They're listening for news of the expanding conflict in Gaza, and for warnings of new terror attacks in Beer Sheva, Ashkelon, even Jerusalem.  But mostly, they're listening for names, code words really, each individual waiting for the specific words that mean them, their unit.

Some rights reserved by Israel Defense Forces

In some places, it's not the voice on the radio that carries the message.  Your phone rings; the conversation is brief. Set your job aside. Take that uniform out of the closet, see if you can still get it on without popping any buttons. Kiss your children, promise them you'll be back soon. Embrace your wife, making the same promise—but she knows the subtext, b'mirtza Hashem—an unspoken acknowledgment that fate will also play a role.

In the army as a kid you were in electronic communications, something fancy. But that's a regular army billet. As a reservist, you'll be assigned the type of duty that doesn't require year-around training. Maybe you'll dig a trench around a base, or stand guard by a gate. That wouldn't be too bad—relatively safe. Or maybe they'll decide that "electronic communications" means you are just the guy to carry a radio through the mean streets of Gaza while soldiers half your age go door-to-door to search for terrorists. Some of those doors explode, having been booby-trapped by an enemy who wants to kill you so badly that he doesn't care if he's also murdering his own civilians living in that house.

You tramp a ride on a southbound Jeep to meet up with your unit. Shit, you realize, I forgot to tell Rivka to deposit that check to cover the rent.  There's too much to think about;  there's nothing to think about. The Jeep never seems to miss a bump or pothole. Time goes slowly, but you're not in a hurry. You remember a song, a classic really, by Arik Einstein:

.ואני חושב עוד מעט זה עזה, ורק שלא יעוף איזה רימון, ונלך לעזאזל. סע לאט. סע לאט
And I think just a bit longer until Gaza... I just hope there's no grenade flying our way to send us all to hell.  Go slow;  go slow.

The driver is in his 30s, religious but not not the kind who get their kids exemptions from the army.  He's got four at home, ages 2 to 10. He shrugs when you ask him how his wife is going to take care of the whole brood while he's on active duty: savta, he smiles. Grandma. Neither of you know any of the people killed in the recent terror attack, but then again, they were just like everybody you do know: the sisters headed down to Eilat for a relaxing weekend. The 22-year-old kid shot as he arrived at the scene to help rescue the survivors of the initial attack.

The world, which could not bring itself to denounce calculated attacks on women and children in Eilat, will certainly have something to say about your arrival at Gaza. Dozens of rockets rain down on the Negev—your nephew's high school gym took a direct hit, though it was, baruch Hashem, empty at the time. Mostly they fall into open fields, because nobody's aiming: if they hit a stalk of wheat or a room full of kindergartners, it's all the same to Hamas.

You suddenly comprehend a strange lyric from the same song, one you had never really understood before:

צבי אומר שגשמים כאלה מזיקים לחקלאות
Tzvi says that rain like this ruins the crops

A land flowing with milk and honey. And steel rain. You wonder if you restocked the bomb shelter after the last time. You wonder if Rivka will remember the parent-teacher conference tomorrow.

Here's the base. Finally. You thank the driver, hop down from the Jeep, and glance up at the sky. Looks like rain.