Waging Lawfare

Trump’s executive order on antisemitism caps a decades-long fight to make Palestine solidarity activism all but illegal.

Natasha Roth-Rowland
June 8, 2020
The Alma Mater, on the Columbia University campus, adorned with a keffiyah by the Columbia chapter of Students for Justice in Palestine, June 2017. Photo courtesy of Columbia University Students for Justice in Palestine.

EARLY LAST DECEMBER, Donald Trump delivered a salvo of antisemitic canards during a speech at the Israeli American Council (IAC) National Summit, teasing his audience about their loyalty to Israel and devotion to money. The crowd erupted in laughter and applause. The head-spinning moment seemed like a fitting cap on a year in which Trump invoked an array of antisemitic tropes, from accusing Jews who support Democrats of “great disloyalty” (presumably to Israel), to telling Jewish Republican voters that Israeli premier Benjamin Netanyahu was their prime minister. The IAC incident, however, turned out to be merely a prelude to what happened on December 11th, the following week, at the annual White House Hanukkah reception. In honor of the holiday, Trump sat in the East Room flanked by Jared Kushner, Ivanka Trump, celebrity lawyer Alan Dershowitz, and several high-profile Christian Zionists, including John Hagee and Robert Jeffress—both evangelical pastors with a history of antisemitic remarks—and signed an “Executive Order on Combating Anti-Semitism.” 

The announcement of the policy provoked deeply polarized responses in the Jewish community. Progressive Jews expressed bewilderment and anxiety about the confusingly-worded order; some read it as a rubber stamp on the president’s repeated assertions that American Jews are not really American or, in the event that they do not identify with Zionism, not really Jewish. The New York Times added to the alarm by mistakenly reporting that the order classified Jews as a national group. Meanwhile, AIPAC lauded Trump for signing the order, while Anti-Defamation League CEO Jonathan Greenblatt—who had just, in an unusual move, called out the president’s antisemitic statements at the IAC event—noncommittally referenced his organization’s support for “bipartisan efforts to combat antisemitism.”

When the dust settled, the order’s true function came into focus: quashing speech and activism critical of Israel—especially on college campuses—and further delegitimizing the Palestinian cause, using civil rights law as a tool. The order instructs government agencies to enforce Title VI of the Civil Rights Act in complaints involving antisemitism on college campuses, and to refer to the controversial International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism as a guide. It specifically names a section of the IHRA definition that lists ways in which criticism of Israel may be considered antisemitic. By the end of the month, three federal complaints had been filed with the Department of Education (DoE) alleging antisemitism on various campuses. 

The Lawfare Project, a far-right pro-Israel legal advocacy organization, fired the first shot on December 18th: a complaint against Columbia University on behalf of an Israeli American student, Jonathan Karten. At around the same time, Jamie Kreitman, who attended Columbia in the 1980s, submitted a different complaint to the DoE against the school’s Middle East Institute. (The grounds for her complaint were not drawn from her own time at Columbia, but from her perception of the current campus climate.) Then, on December 27th, the American Center for Law and Justice (ACLJ)—an evangelical Christian outfit headed by Jay Sekulow, Trump’s personal lawyer—filed a complaint against the Georgia Institute of Technology (Georgia Tech) on behalf of the Hillels of Georgia. In early March, the DoE opened an investigation.

Despite Trump’s assertion during the signing ceremony that his order marked a “historic action,” Jews have long received protections under civil rights law. Moreover, the IHRA definition of antisemitism—which the order has now mandated for use by US government agencies—had in fact been employed by the DoE since at least 2018. That year, Kenneth Marcus, a conservative lawyer who served in the George W. Bush administration, stepped into his second stint as assistant education secretary for civil rights; under his tenure, the Office for Civil Rights (OCR) has increasingly used Title VI to prosecute allegations of antisemitism related to criticism of Israel. The executive order, then, is effectively an imprimatur for an existing legal strategy.

But the order’s largely ceremonial changes to the law are not really the point. The complaints triggered by its passage are unlikely to pass muster in court, but they have already succeeded at a different goal: garnering press coverage. For example, though it remains unclear whether the case filed against Columbia on behalf of Karten will actually proceed, the Lawfare Project issued a press release trumpeting the complaint immediately upon its filing, before the school received a copy. (At the time of writing, unredacted copies remain unavailable, which has prevented full details about the allegations from becoming public.) Days later, The Jerusalem Post, among other outlets, ran a story airing a series of allegations too vague to verify, including statements supposedly made by unnamed faculty members “endors[ing] Hamas’s military wing, the al-Qassam Terrorist brigade” and calling students “agents of the Mossad.” The piece quotes extensively from Karten and from employees of Lawfare; Columbia, it reports, declined to comment. This, says Liz Jackson—an attorney with the group Palestine Legal, which provides legal support to Palestine solidarity groups and activists—is a hallmark of Lawfare’s modus operandi: the group encouraged the media to report on charges against Columbia, while denying the institution the information they needed to respond—thus helping promote a narrative uncritically connecting Columbia with antisemitism. These complaints, in short, function largely as appeals to the court of public opinion, ensuring “that the public at large misunderstands Palestinian rights advocacy to equal anti-Jewish hate,” Jackson said. 

In a polarized political environment, this tactic is finding increased success. Palestine solidarity activism has become the latest front in the US’s endless culture wars, in which hot button issues such as reproductive rights, LGBTQ protections, and gun control become shorthand for an entire political worldview. Drawing from the playbook it developed in the 1980s and 1990s to smear Democrats as perverts, godless elites, and baby killers, the right has endeavored to portray contemporary antisemitism as the calling card of the left. Particularly since 9/11 and the invasions of Afghanistan and Iraq, Islamophobia has been an organizing principle of the culture wars. In recent years, as criticism of Israel and support for the Palestinian cause have become more commonplace in US political discourse, Palestine has taken on heightened symbolic significance for the right and become a prominent target of its Islamophobic agenda. Culture warriors on the right emphasize the role of Islam in Palestinian national identity (thus erasing Palestinian Christians), and portray Palestine liberation activism as inveterately violent, reactionary, and rooted in antisemitism. The Trump administration has lent considerable firepower to this strategy, not only through its executive order, but also through its contribution to a post-truth politics, in which propagandist groups are able to brazenly market alternate realities. 

Like every culture war campaign, the fight against support for Palestinian rights is driven by a dual strategy with a rhetorical facet and a legal one. Pro-Israel groups and their political allies have incessantly linked criticism of Israel with hatred of Jews; in so doing, they have manufactured a problem—the supposed overrunning of college campuses by antisemites—and then adapted legal frameworks to “solve” it. The rudiments of this strategy had been in place for years when Trump rolled out his executive order. Indeed, the first antisemitism investigation by the OCR under Title VI occurred in 2004, predating the IHRA definition, and such cases began to pick up during the Obama administration. What the order reflects, then, is not a drastic shift in the culture war on Palestine, but rather an accelerating transition from a speculative legal strategy—which has, until recently, functioned largely as a narrative tool—into a concrete framework for legislative assaults on free speech.  

Photo courtesy of Northeastern University Students for Justice in Palestine.

IN 2004, Kenneth Marcus, then on his first term as assistant education secretary, rolled out new policy guidance stating that the OCR would “aggressively prosecute” Title VI cases involving harassment of Jewish students. The following month, the far-right Zionist Organization of America (ZOA) submitted a complaint to the DoE against the University of California, Irvine, alleging that the school had failed to respond appropriately to antisemitic incidents on campus. In a first, the DoE agreed to investigate, but cleared the university in 2007. This pattern recurred in 2010, when Education Secretary Arne Duncan, an Obama appointee, published DoE guidelines reaffirming that Jewish college students were entitled to protections under Title VI. The following year, the DoE opened an investigation into a complaint by a UC Santa Cruz lecturer over “anti-Israel discourse and behavior” at the school; the agency cleared Santa Cruz two years later. In March 2011, two recent Berkeley graduates launched a similar complaint against their alma mater and, later that year, the ZOA filed a complaint against Rutgers University. Each time, the DoE opened an investigation, and later dismissed the charges.

Writing in conservative Jewish publications, Marcus—whom Jackson identifies as “the architect of the campaign to abuse civil rights law” in order to police speech on Israel/Palestine—has described this cycle as both a failure and a victory. In a 2010 Commentary article, he reflected bitterly that the UC Irvine investigation was doomed by the OCR’s “unwillingness to treat Jews as a distinct group beyond considerations of religious adherence,” owing to the fact that Title VI covers racial and national, but not religious, discrimination. (Marcus’s approach to antisemitism and civil rights law has been shaped by this very tension, and in particular by a Supreme Court ruling in the 1980s that permitted a synagogue in Washington, DC, to sue its white supremacist attackers for racial discrimination—citing the fact that when the 1866 Civil Rights Act was passed, Congress considered Jews a distinct racial group.) In a 2013 op-ed for The Jerusalem Post, however, Marcus struck a more positive note. Regardless of their outcomes, he argued, these complaints meant “bad publicity” for administrators, and so effectively “put universities on notice.” In other words, the strategy was floundering in a legal sense, but rhetorically it was starting to hit its mark.

In order to shore up his legal strategy, Marcus and his allies needed a framework under which anti-Zionism could be prosecuted as antisemitism. In 2005, the European Monitoring Centre on Racism and Xenophobia (EUMC) developed the definition of antisemitism that would be adopted by the IHRA in 2016. Often defended by its champions as impartial and consensus-based, the EUMC definition was first endorsed by the State Department toward the end of the George W. Bush administration. It was later modified to include former Likud minister Natan Sharansky’s “3D” definition of antisemitism: delegitimization of Israel, demonizing Israel, and applying double standards to Israel—all terms that have since become central pro-Israel talking points. Today, the IHRA definition enjoys a modicum of bipartisan support. In an op-ed penned a few days before Trump signed the executive order, for instance, Democratic congressman Ted Deutch called for the entire federal government to adopt the definition, a move that would go far beyond the demands of Trump’s order.

Yet attempts to reinforce the DoE’s use of the definition have also provoked considerable backlash. Among its most outspoken critics is Kenneth Stern, the lead author of the original EUMC definition. In a 2016 New York Times op-ed, Stern contended that the understanding of antisemitism he helped codify was never intended to censor criticism of Israel, and that Congressional efforts to do so were a slippery slope. “We could dust off the files of the House Un-American Activities Committee,” he wrote at the time, drawing a parallel to McCarthyism’s infamous anti-Communist witch hunts. The definition’s adoption at the federal level has stalled repeatedly due to First Amendment–based challenges. The bipartisan Anti-Semitism Awareness Act, on which Trump’s executive order is based, failed in 2016 and 2018; similar versions of the bill were introduced in the Senate in March 2019 and the House in July 2019. Trump’s order, then, marked a growing need to sidestep Congress—a point Trump himself acknowledged at the signing ceremony.

Even as the legal strategy continued to stumble, the number of complaints regarding anti-Zionist and Boycott, Divestment, and Sanctions (BDS) activity on US college campuses climbed following the IHRA’s adoption of the EUMC definition and Trump’s ascension to the presidency. At least on some occasions, the complaints have resulted in high-profile investigations into student activism on the basis of antisemitism, sending a message that students risked legal consequences for criticizing Israeli policy and military actions. In November 2018, for example, left-wing Jewish and Palestinian student groups planned a joint vigil at Berkeley to mourn both the victims of the Tree of Life massacre in Pittsburgh and those of an Israeli missile strike on Gaza. Before the event had even taken place, two lawyers—both on the legal advisory board of an organization founded by Marcus—filed a complaint with the DoE on behalf of pro-Israel students alleging antisemitism due to the proposed vigil’s “false moral equivalence.” The move strayed into the realm of “pre-crime,” where suspected offenders are charged with an alleged transgression before it can even take place. According to Noura Erakat, a Palestinian American legal scholar and a professor at Rutgers University, Trump’s executive order threatens to exacerbate such incursions into campus speech, resulting in self-censorship and a decrease in student activism. One of the most profound impacts, Erakat added, might also be the most difficult to measure. “University administrations who want to reduce risks to the university might start to make adjustments—they might be less inclined to hire Palestinian scholars, or to admit Palestinian students, because they don’t want the headache,” she said. 

Ultimately, the executive order should be understood as one aspect of a political program that stretches far beyond college campuses, said Foundation for Middle East Peace President (and Jewish Currents Contributing Writer) Lara Friedman. By the end of the president’s first term, his pro-Israel donors and advisors are aiming to “roll back the peace process to where there is no peace process, there is no partner, and there is no construct of a two-state solution,” she said. In this context, the order represents an effort to delegitimize the Palestinian cause wholesale, a project that has been greatly facilitated by the IHRA definition. “At this stage,” Friedman said, “under IHRA, the Palestinian narrative itself is antisemitism.” 

TODAY, a mushrooming network of groups is using legal and rhetorical means to delegitimize talk of Palestinian rights and to create a free speech exception on Israel and Zionism. Among the highest profile of these groups is the Lawfare Project. The group was founded in 2010 by Brooke Goldstein, a conservative lawyer and Israel advocate, and is supported by donors who also fund neoconservative think tanks like the David Horowitz Freedom Center and Pamela Geller’s American Freedom Defense Initiative (also known as Stop Islamization of America). Goldstein portrays Zionism as “the civil rights movement of the world’s oldest ethnic minority,” and the organization describes its own task as one of protecting “the civil and human rights of the Jewish people worldwide.” To this end, it has brought numerous domestic and foreign lawsuits on the premise that boycotting Israeli products is antisemitic. Critics say complaints filed by the group are driven not by legally discernible discrimination, but by discomfort on the part of the complainant at being exposed to criticism of Israel and Zionism—a “politics of feeling,” as Katherine Franke, a professor at Columbia named in Jamie Kreitman’s complaint, puts it.

In one typical Lawfare case, from 2017, the group filed federal and state lawsuits against San Francisco State University (SFSU) and its director of Arab and Muslim Ethnicities and Diaspora Studies, Rabab Abdulhadi. The group claims, among other allegations, that Abdulhadi, who is Palestinian, violated Title VI and Jewish students’ civil rights by criticizing Israel. In an interview, Abdulhadi described the filing as being “full of fabrications,” and claimed she never met the students involved in the complaint before the Lawfare Project brought it to court. The group had little success at the federal level, where the case was thrown out twice. It did somewhat better in state court: SFSU settled, agreeing to make a statement repeating its legal obligations to Jewish students and to pay a portion of the Lawfare Project’s legal fees—though the organization ultimately failed to attain the extensive damages and concessions it sought.

But the fact that the stunt mostly failed, legally speaking, didn’t matter in terms of its broader impact: the overall proceedings still gave the appearance of guilt on the part of the accused, and victory on the part of the accusers. The 78-page suit relied heavily, Jackson said, on the term “information and belief”—hearsay, essentially—while laying out the allegations. When a judge first assesses a case’s viability, they assume all the facts presented are true; this allows plaintiffs like the Lawfare Project to submit—and publicize—a litany of allegations without initially having to back them up. In this way, the organization successfully connected SFSU with antisemitism in the public eye, and laid the blame on a Palestinian faculty member. Although the court only granted minor concessions in the state suit, the Lawfare Project framed the outcome as a landmark victory, and Goldstein appeared on the popular conservative morning show Fox & Friends to affirm the program’s characterization of Abdulhadi as an antisemite—while omitting the fact that Abdulhadi was not named in the state suit, and was therefore not part of the settlement. (In a statement, Goldstein told me that the complaint against SFSU “was replete with factual allegations” about how “Jewish students had been discriminated against at SFSU and denied their basic civil rights.” Goldstein further noted that her organization is “very proud of the groundbreaking settlement entered into with the California State University system [CSU], wherein CSU recognized that Zionism is an integral part of the Jewish identity.”)

During the first year of Trump’s presidency, Lawfare’s media offensive took up a new disinformation strategy when it quietly launched Zioness, a self-described Zionist feminist group. The organization was purportedly founded by Amanda Berman, who presented herself as a progressive leader but was in fact a Lawfare employee with a history of making Islamophobic statements. In 2015, Berman told a conservative television panel that there is “an inherent Muslim ideology underlying this threat [of terrorism]” in the US, and suggested that Muslim immigrants should be subject to extra vetting procedures. (Berman did not respond to a request for comment on these statements.) The same year, an article about the failure of the Oslo Accords written by Berman and Goldstein appeared on the far-right website Breitbart—an outlet considered anathema to progressives because of its strong ties to white nationalism

In the summer of 2017, buoyed by the ongoing fallout over ties between the chairs of the anti-Trump Women’s March and Louis Farrakhan, the notoriously antisemitic leader of the Nation of Islam, Zioness began regularly appearing with heavily-branded signs at marches dedicated to immigrant rights, gay rights, and other progressive causes. In reality, as T’ruah executive director Rabbi Jill Jacobs noted at the time, this strategy was a thinly veiled effort to provoke a response and to center the conversation on Zionist exclusion from left spaces. Berman told media outlets and audiences across the country that the group’s mission was to combat liberal Jews’ alienation from their would-be allies on the left, while concealing the fact that Zioness was conceived and launched by right-wing actors. Under the guise of making the left “safe” for Jews, Zioness took aim at the same figures targeted by the rest of the Jewish right: progressive leaders—particularly women of color—who expressed anti-Zionist views or support for BDS. 

Zioness, then, offered a subtler spin on the Lawfare approach. Beyond conflating Judaism and Zionism in order to present the latter as a civil rights cause, the group placed Zionism within a broader spectrum of progressive values—feminism, anti-racism, immigration rights—in order to create the false impression that it was a channel of dissent from within the left’s own ranks. In doing so, it tried to blur the boundaries of the culture wars, claiming progressive bona fides and vocally supporting issues like gun control and reproductive rights while taking the same stance on Israel as its supposed ideological foes. Zioness has proved less potent than it initially appeared to backers. The group never developed an actual organizing strategy (its former director of grassroots organizing, Carly Pildis, quit her job in January after less than five months in the role). It also suffered an embarrassment when Goldstein, apparently in retaliation for what she perceived to be Zioness’s excessive liberalism, owned up to having founded the group as a Lawfare initiative. As with Lawfare’s complaints against universities, though, Zioness has—even in its apparent failure— succeeded in its real task: to present antisemitism as endemic to the left, and to sell that narrative to the press using progressive language. 

Zioness marches in the Celebrate Israel parade in New York City, June 3rd, 2018. Photo: Zioness Facebook page

THE EXECUTIVE ORDER’S emboldening of right-wing, pro-Israel actors continues to gather steam. In January, the Zachor Legal Institute and StandWithUs wrote to the University of Michigan threatening a Title VI complaint if it didn’t cancel an upcoming youth conference on Palestinian rights, organized by a coalition of pro-Palestine groups. At the start of February, the Dhillon Law Group, representing the David Horowitz Freedom Center, cited Trump’s executive order when it threatened the heads of the Claremont Colleges in California with a Title VI complaint over events planned by a host of groups, including Claremont Students for Justice in Palestine. As in the complaint filed against the students planning the Berkeley vigil, this letter portrayed even the intention to address Palestinian rights as a violation of the law. 

In another chilling legal development, new bills are now being introduced at the state level that seek to apply the IHRA definition well beyond college campuses, strengthening the legal entrenchment of the rhetorical strategy. In October, shortly before the executive order’s passage, The Guardian reported that efforts to inscribe the definition into state law are being facilitated by the American Legislative Exchange Council (ALEC), a network of corporate representatives and right-wing state legislators that churns out conservative “model bills.” The group has worked with elected officials like Florida state senator Randy Fine, who in 2019 sponsored a state bill outlawing antisemitism (as defined by the IHRA-informed State Department definition) in public education, the first of its kind. Fine told his colleagues that his bill ensures that “Students for Justice in Palestine is now treated the same way as the Ku Klux Klan—as they should be.” Bipartisan bills introduced in Arizona’s House and Senate in January would effectively write criticism of Israel into its hate crime laws. A bill introduced in Iowa’s House of Representatives in February would allow criticism of Israel to be prosecuted as “a discriminatory act,” and a bill tabled in South Carolina’s House the same month would write the IHRA definition into the state’s discrimination laws. The lead sponsor of the South Carolina bill is Republican representative Alan Clemmons, an ALEC board member—demonstrating the ease with which conservative special interests are making their way into legislation.

Perhaps counterintuitively, the right’s increasingly draconian attempts to censure Palestine advocates have gained momentum in part thanks to increased mobilization on the left. According to Foundation for Middle East Peace’s Friedman, mounting international pressure on Israel—which has only intensified as the Trump administration has moved through its Israel/Palestine policy checklist—has rendered maneuvers like the executive order defensive as much as offensive, as the government tries to crack down on blowback to its own decisions. In this light, Rutgers’s Erakat sounds a note of cautious optimism for the future of Palestine advocacy. “The good thing for Palestinians is that we’re in a political moment in which people understand Trump is bad, even if they don’t understand Palestine,” she said. “So hopefully they will approach his apparent efforts to protect Jewish people with the same level of cynicism they have for his other moves.”

Natasha Roth-Rowland is an editor at +972 Magazine, and a doctoral student in history at the University of Virginia, where she researches the Jewish far right.