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Volokh Conspiracy

The ongoing saga of the Virginia State Bar and Israel: It's time for the bar president and president-elect to apologize


Late last Friday, the Virginia state bar (a state agency not to be confused with the voluntary Virginia Bar Association) sent out an email under the signature of bar president Kevin Martingayle announcing the cancellation of a planned midyear meeting in Jerusalem. The email explained the cancellation as follows:

Certain members of the Virginia State Bar and other individuals have expressed objections to the VSB's plan to take the Midyear Legal Seminar trip in November to Jerusalem. It was stated that there are some unacceptable discriminatory policies and practices pertaining to border security that affect travelers to the nation. Upon review of U.S. State Department advisories and other research, and after consultation with our leaders, it has been determined that there is enough legitimate concern to warrant cancellation of the Israel trip and exploration of alternative locations.

I posted the email and accused the bar of boycotting Israel. An international firestorm ensued, with condemnations coming from Virginia political figures, Jewish communal organizations, political commentators, and, not least, members of the Virginia bar.

Bar officials have since denied, sincerely I believe, any intent to criticize Israeli security policies, ally with forces hostile to Israel, or otherwise make any political statement. Nevertheless, the logic of calling this a boycott is clear: if Israel has such "unacceptable discriminatory policies and practices pertaining to border security" that it's inappropriate for the Virginia bar to hold a conference there, then it would be inappropriate for any government agency or private entity concerned about protecting its members from discrimination to hold a conference in Israel. And those individuals and organizations promoting boycott, divestment, and sanctions from Israel could therefore declare a significant victory.

On Sunday, Martingayle sent out a second email. What this email should have said was: "Dear Colleagues: Please disregard our email on Friday cancelling the planned midyear meeting in Jerusalem. As of Friday morning, we had only about twenty bar members signed up for the meeting, not nearly enough to meet our minimum of sixty needed for the trip. That morning, we received a petition from a handful of bar members requesting that we change the venue for the midyear meeting due to discriminatory security policies by Israel. Already frustrated by low signups for the trip, and concerned that we were inviting an unanticipated political controversy, we panicked and hastily canceled the trip without taking the time to properly investigate the matter, including the fact that there is a well-organized international campaign to boycott Israel that we had inadvertently seemed to support. We apologize. The trip is still on, but will still need to cancel it if we don't get more signups, and soon."

Instead, Martingayle wrote:

On Friday March 27th, we canceled the Virginia State Bar's planned Midyear Legal Seminar trip to Israel. The decision was based primarily on a U.S. State Department advisory:, "Entry, Exit & Visa Requirements." We were forced to conclude there were potential difficulties some of our VSB members might face in obtaining entry to Israel. Additionally, we were well short of the required number of confirmed attendees necessary for the trip to proceed.

President-elect Edward L. Weiner, chair of the Midyear Legal Seminar Committee, communicated with the Israeli Embassy. An embassy official expressed a desire to facilitate the trip but acknowledged that security protocols are strict and could lead to exclusion or restriction of some VSB members.

It turns out that the story presented by the emails falls apart.

First, "consultation with our leaders" meant, as it turns out, a decision by Martingayle and Weiner, who made the decision while at a meeting of the Virginia Trial Lawyers Association at the Greenbrier.

Second, an email containing a petition with about thirty signatures from Virginia bar members objected to the trip arrived at the VSB on Friday morning around 9:15 am. The cancellation email was sent out starting around 4:30 pm, while Martingayle and Weiner were still at their conference. That should give you some indication about how much "research" was involved in the decision to cancel.

Third, Weiner's call to the Israeli embassy, as researched by Bill Jacobson of Legal Insurrection, apparently consisted Weiner asking whether Israel would definitely allow any bar member who wished to attend into the country. Weiner himself related to Jacboson that he "understood the man couldn't speak to how people would be handled upon attempting to enter Israel when I couldn't tell him who the people were." Of course, the same thing would be true if you called any embassy of any country in the world and asked them to commit to their security personnel admitting unidentified individuals into the country.

Fourth, as for the State Department advisory, in relevant part it state that "U.S. citizens whom Israeli authorities suspect of being of Arab, Middle Eastern, or Muslim origin may face additional questioning by immigration and border authorities."

Anyone who has traveled to Israel knows that anyone entering or exiting the country is subject to "additional questioning" for all sorts of reasons. If you say you are Jewish, for example, you might be asked if you had a bar mitzvah. If you say yes, you might be asked "what synagogue?" "Who was the rabbi?" "Can you recite your haftorah portion?" At any point, if you seem to be acting evasively or suspiciously, you might get asked a series of additional questions.

There are obvious reasons why people of Arab, Middle Eastern or Muslim origin may be more likely to arouse suspicion of Israeli security personnel: they are more likely to have traveled to visit relatives in countries hostile to Israel; they are more likely have names similar or identical to names on Israeli terror watchlists; having absorbed propaganda from the Arab media about baby-eating Israeli Jews, they may be more nervous about going through Israeli security, and nervousness is one sign "profilers" look for in determining whom to question.

All that said, Israel is actively encouraging tourists from the Arab and Muslim world, and tens of thousands enter and exit Israel every year, including from very hostile countries. Besides some unquantified risk of "additional questioning" of the sort that all visitors to Israel are subject to, there is no reason Americans of Middle Eastern origin or Muslim faith can't or shouldn't go to Israel.

Weiner seems to now implicitly acknowledge that fact, and instead has focused on the one group that may face real difficulties going to Israel, attorneys of Palestinian origin. Weiner told the Daily Press, "I did not consider that there would be Palestinian lawyers that would want to come on this trip and would have a problem." He told "No one on the committee ever thought about the plight of the Palestinian Virginia lawyer."

The situation with regard to Palestinian-Americans is complicated. As my colleague Michael Krauss explains,

Under the Oslo Accords between Israel and the Palestine Liberation Organization (strongly agreed to by the United States), people registered in the Palestinian population registry, and who seek to visit the West Bank, must cross into Israel via the Allenby Bridge from Jordan. This gives more control over entry into its territory to the Palestinian Authority government and less to the Israeli government. Note, the Oslo Accord does NOT apply to all Palestinian Americans, only to Palestinians with dual citizenship who are listed in the official Palestinian Authority population registry. Nor does it cover anyone visiting Israel—coming to Jerusalem for the mid-year meeting does not entail a visit to the West Bank and therefore does not preclude entry via Ben Gurion airport. Only Palestinian citizens wishing to visit the West Bank that must submit to Palestinian sovereignty by crossing through its Jordan crossing.

A complication is that, as the State Department relates, Israel may consider those with parents born in the West Bank to also be Palestinian citizens, assumedly in accordance with Palestinian nationality law.

Until about ten years ago, if you were an American with even one Israeli parent, you were presumed an Israeli citizen and had to get an Israeli passport if you wanted to travel to Israel. So as of Oslo, Israel was treating Palestinian Americans in an analogous way to Israeli Americans, presuming citizenship based on parentage. And if Israeli authorities thought that in entering Israel, a Palestinian American was actually intending to visit the West Bank (say because he had visited relatives there several times in the past), they might deny entry in the Tel Aviv airport based on the policies noted above.

In short, a Palestinian-American who wanted to attend the conference might face difficulties if immigration authorities believed him to be a citizen of the Palestinian Authority and suspected that he intended to visit the West Bank. Did the Virginia bar inquire as to whether any potential problems for Palestinian attendees could be mitigated by prior coordination with Israeli authorities? Apparently not. Did any Palestinian member of the Virginia bar express any real interest in attending the conference? Apparently not. Would a Palestinian member of the bar be missing anything significant if he chose not to chance dealing with Israeli security were he interested in attending? No, only a few dozen members of the bar out of tens of thousands were expected to attend. Did any of this have to do with invidious discrimination, as implied by the bar's emails? No.

So "the plight of the Palestinian Virginia lawyer" doesn't strike me as an adequate basis for canceling the conference.

I don't think Martingayle or Weiner were ill-intentioned here. Any suggestion that Weiner is anti-Israeli flies in the face of the fact that he planned the trip to Israel to begin with. I do think, as I suggested above, that he and Martingayle were frustrated and perhaps a bit embarrassed by the small number of signups for the trip, were thinking it might need to be canceled, and then thought doing so in light of the petition opposing the trip would allow them to pose to defenders of civil rights (or at least avoid a political controversy) rather than as planners of a failed midyear conference. They made a hasty, regrettable decision. All that's left to do now is to acknowledge that and apologize without further excuses or pretexts.