Word Salads And Rockets: Fighting Hamas On Campus And In Israel

>> Tom Church: This is the Libertarian Podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian, Professor Richard Epstein. Richard, you have a lot of titles. Here at Hoover, we call you the Peter and Kirsten Bedford Senior Fellow. Over at NYU, you're the Lawrence A Tisch Professor of Law, and I hear you're also a senior lecturer at the University of Chicago.

Now, Richard, it's been another week since Hamas attacked, killed, and abducted israeli citizens. And we've had a week to think about what comes next. We've had a week to see how world opinion has settled on the matter of Hamas and Israel, and how they're conducting this war. We've had a week to see how the media is covering it.

And I think you're on. You're at NYU. I'm over here at Stanford. We've had a week to see how students on college campuses, as well as administrators are responding to this conflict. I'd love to know, Richard, for you, who do you want to talk about first? Do you want to talk about the media response or do you want to talk about university responses?

>> Richard Epstein: Look, I think I'd rather talk first about the university, not responses, but the university situation, which has led to the needy responses.

>> Tom Church: Okay.

>> Richard Epstein: And it's a very amazing kind of camp. I'm gonna start with a simple comparison. There was another Hamas invasion of less severity with a very prompt Jewish response in 2014.

And I simply do not remember any serious question of media coverage or university involvement in that case, which would strike you anything other than the usual disputes between two sides who do not like each other. But in this particular case, I think it's clear to say that a series of one sentence which was published by a number of people at Harvard.

All which were associated with various kinds of Palestinian groups in some indefinite way. Which says, that Israel is entirely responsible for the atrocities that took place by Hamas, probably unleashed the greatest storm of antagonism, hostility, and so forth, of any single sentence that I can recall. And the question is, why does this happen?

And what should be done to respond to it? I think the first thing about this is that essentially whenever you talk about Arab Israeli disputes over Palestine, they always have two dimensions. They have one about the current situation, attack, atrocity, killing, or whatever. And then you have some which go back to the whole question about the division of Palestine or the removal of the british mandate and the question of how the system evolved from 1947 with the UN revolution and resolution for the next 70 odd years.

And the question is do you can keep them separate or do you put them together? And what's so extraordinary about this particular statement is you're witnessing probably the most brutal, indefensible, unprovoked activities in recent years. Even as far as I can tell, Putin has not done things like this in Ukraine.

And what happens is somebody says, the guys who get killed are the ones who are entirely responsible for what has happened. This is an effective statement, which is, by virtue of what you have done in the past, to create the state of Israel. Essentially, it's a free war upon you, is perfectly justified.

And if you read a little bit further, essentially the Hamas position, which they don't like to articulate, but which they seem to believe, is that every Israeli is a combatant. Every essentially Hamas or Palestinian is a victim and a non-combatant. And that it's perfectly legitimate to take this as a first step to eradicate the state of Israel.

And to either kill or to force to flee the seven million plus Jews that happen to live in Israel so that you could unify it under a map in which the name on top is Palestine. It's pretty extraordinary to see those two things together. And then the question is just how do you respond to it?

My own preference on this thing is I always have believed that every time you create a new nation out of a war or two new nations, there is always going to be some messiness that's going to take place. It happened with the formation of the american constitution. It certainly happened in the Middle east.

If you remember, Gaza was not even a part of Palestine. It was under Egyptian supervision until 1967, when the Israelis invaded the place because they were frightened of the fact that attacks might come from it. So you've got all this stuff, and to somehow or other say that the complexities that existed in that situation excuse everything that's going on.

It's such an outrageous statement that is gonna provoke a fierce response. What happens then is, you see on the Palestinian side, they double down, they don't retreat. They simply say, of course, it's true. And then you see further events. And what happens is they constantly treat them as further evidence of Israeli aggression, of which the so called attack by Israel on the hospital in Gaza is one immediately attributed to Israeli activities.

When it's perfectly well established that it was either an errand or deliberate, I think it's probably errand. A missile from the Palestinian side which essentially slammed into the courtyard outside of the Gaza hospital. And well, on the Israeli side, there is complete incomprehension. I'm Jewish, obviously, and I involve these things.

I can get my head around the fact that people are prepared to say and to defend these things and to rejoice over this kind of slaughtering. And so the reaction has become fierce. Well, fierce by whom and where? There is in universities a kind of implicit belief in what is known as the Calvin report from the University of Chicago in 1967, drafted mainly by Harry Calvin and a very distinguished committee, which said, the general rule of universities is they remain neutral in the face of various kinds of disputes and let itself be a forum for critics, but not to become a critic itself.

The report, in fact, does not exactly say that. There's an exception for essentially a crisis like situations, of which this would surely count one, where universities might want to get involved. But what happens is, to people out in the world, this effort, well, these are reasonable guys debating on the one hand as opposed to these are mortal sins of which there is no debate on the other.

Has basically riven the entire academic community apart. And so all of a sudden, at Harvard and at Penn, not at NYU, a little bit maybe at Stanford, all of a sudden, large major donors, most of which, but not all of which, are. Said, we can't associate ourselves with a university which turns an indifferent eye to these kinds of things.

And it's pretty clear to me that there's gonna be a really concerted effort on the part of many people in and out of these campuses to renew both Claudine Gay, the new president at Harvard, and Liz Magill, the not so new president at Penn, because of what they've done.

And, I mean, I've been to lunches and discussions where the divisions of opinion are simply quite extraordinary. My own view about all of this is that universities play a very fine line. So let me just talk about the Penn thing for one second. There was a conference which was held by an organization called Palestinian Write, W-R-I-T-E, which featured a bunch of speakers and so forth, some of whom were clearly pretty antisemitic.

Now, I don't think necessarily if a group wants to invite them to campus, the university ought to throw them out, if there is no immediate threat or defense of violence of one form or another. But it's absolutely incomprehensible to me that the Wolf Humanities Center, which is run by Jewish people, would actually invite them and support this.

It's one thing to say, you could come, it's another thing to say, we welcome you. And so what that does is it sets up a situation where Liz Magill, Frankly, is unable to deal with all the people coming after her. She doubles down on neutrality, then she gets angry at the trustees who disagree with them.

Then they all disavow funding of one kind or another. And so what should have been something that deft handling could have diffused a little bit has become essentially a fratricidal war, which will probably end in her being removed from that institution, which in turn will then create yet another ruckus as to how it is that jewish finances and other members of the establishment can do in the common people.

So I see this as a downward spiral, and I simply do not know how it is that anyone can extricate themselves from this, because you have two sides that are absolutely positive what's right and wrong. This would have all been a completely different struggle if, in fact, nobody had supported Hamas and said, we condemn these attacks.

At some time when the reputation, when restitution or corrections are made, we could talk about the underlying situation, how we improve cooperation and so forth. That I could understand. But I cannot understand what's happened on the hardline side when people start to develop the torture and death of innocent individuals and claim themselves to be essentially innocent victims of a slaughter that they perpetuated.

It just boggles my mind. And at start there, I wanna end there. Because I think that first statement from Harvard, even if it's repudiated, even the people who did not know that they signed it, that one sentence, that one sentiment essentially has set up a conflagration which will destroy or hurt higher education for years to come.

>> Tom Church: Richard, I think there's a lot that boggles the mind here. I mean, one of the things that is on my mind is seeing many progressive or left wing organizations, left wing people who are reflexively on the side of Palestine. I guess I understand that to throw your lot behind a right wing terrorist organization like Hamas is, again, hard to wrap your head around on that topic.

I do wanna get into this inclination of the pro Palestinian crowd to look at these attacks. And, I mean, I'm trying to figure this out too. I'm trying to understand why people can look at this and say, this is okay. And the argument I've often heard is, how else are they supposed to fight?

What choice do they have? The IDF is much more powerful, they have been pending in Gaza with no freedom of movement. So I'm looking to you to say, well, how should they fight? I mean, is this a legitimate form of resistance warfare? I know the answer is no, but what do you wish they would do instead.

>> Richard Epstein: I wish they would basically take a deep pause and think of how they got themselves into this situation. Let's go back to the exploitation situation. In 2005, the Israelis made a unilateral decision, defended by some, myself included, attacked by others, to pull out of Gaza. When it left, it left every settlement that it had, every facility it had created in pristine condition.

At that time, Fatah had run the situation. But it's an act of sheer craziness to essentially destroy the facilities that were given to you. And it shows, in effect, that you don't need any provocation to get crazy kinds of reactions. What you saw there was exactly that sort of thing.

So then the next thing comes. What happens is Hamas wins the election in 2006 on a good government ticket, which had nothing to do with terror against Israel. And the moment they win, all of a sudden, bodies of people on the other side of these debates are thrown off of rooftops.

These are Palestinians killing Palestinians. And then Hamas becomes essentially a terrorist state. And this was nothing that Israel did with respect to anything, it's respect what they did with respect to everything. Well, at that point, the question is, how do you respond? If this terrorist state said, look, can we work out some kind of deal to increase trade and commerce between the two sides and meant it?

What would happen is you'd get a vast improvement in the lot of the Palestinians who enter these things, just as happened when Poland, Tomas, as a tactical boy, allowed these things to take place just before they shut them down recently in October to immense benefits of people from Gaza.

And the same thing happened in the West bank, where there were efforts to constantly have Israeli businesses work with Palestinian employees. And there was always some act of violence which disrupted all of this stuff. Well, then what happens is there's a huge amount of aid that's going into Palestine by UN organizations, by other organizations.

And what do they spend it on? Well, they spend some of it on taking care of the people, but they spend much of it building tunnels, trying to figure out how to get missiles into various places, figure out plans to infiltrate Israel and so forth. And so you see, what's happening is essentially they are now converting themselves into a group whose sole interest is to destroy the state that's sitting next to them, having been given that power.

Well, you're sitting there as Israel. What do you do? You say, look, I have to stop this from happening. So are they in a prison? They're not in a prison, but they are subject to a blockade where there are very limits on what can come through, and nothing through.

But imagine what would happen if you had done it the other way, no blockade. They're sitting there as a terrorist state. They don't have a prime minister, they don't have any recognizable government, and they decide to invite 250,000 Iranian soldiers to camp in Gaza under the best and peaceful attention.

Essentially, Israel will be destroyed if it does not maintain that particular kind of a barricade. So it maintained. And what happens is the Israelis are doing something in response to real and palpable threats. The Palestinians, the Hamas groups are making them, and they simply act as though this was an arbitrary action by some random government to hate other people who have done nothing whatsoever to them.

If you go then back to the West bank, they build a wall. Now, why did they wield the wall? Because essentially there was consistent terror. I think it was March of 2002, there were 900 Jewish people who were murdered by various members of the Palestinian groups at markets, and fairs and cars, and in trucks.

And what do you do? You have to build a wall, you build the wall, and of course, it's gonna limit freedom. So the issues you have to ask, is there a justification based on acts of past and future terror which allows Israel to respond in this particular way?

And I think the answer is yes. If they did not have a superior military force, if they were as corrupt and as idle as Hamas was and as the West bank people, they would have been destroyed months or years ago because they could not have withstand this particular situation.

So what you're doing is, in effect, you shoot yourself in the foot and then you claim that everything, the reason you cannot walk is because of the blockades and the limitations that are going on. They wanna have free access, let them destroy all the tunnels. They're not gonna do them.

Let them destroy all the missiles. Let them decide that they're not going to engage in indiscriminate slaughter by taking these imprecise rockets and throwing, and hope they'll land on somebody's home or in some kind of a church or a temple, whatever. And that conduct is persistent, it takes place this entire time.

There have been so many chances to make a better deal out of this, including the efforts to create a palestinian state, which the Israelis were willing to recognize around 2000, with most of the territory in the West bank and with Gaza and some kind of joint control over East Jerusalem and so forth.

And Asa Yarfan, he didn't say no, but he didn't say yes, and the whole thing disappeared. They don't wanna talk about instances like that. And in fact, it seems if you had created that kind of an institution and you didn't have israeli safeguards against foreign troops coming in there, it would have been the end of Israel.

Now, a two state Solution is beyond belief. The only possibility is you rid yourself of Hamas and then try to create situations where a newly developed Palestinian force creates an autonomous, self-governing trade zone that cooperates with Israel. Somebody said, I think it was Daniel Pipes. He said, look, he said, where is Konrad Adenauer?

Who's going to be able to lead them out of this morass? And he doesn't know who that person is. And frankly, neither do I. I do not see any leader from Palestine who's done that. Let me give you just a number. There are a lot of prominent intellectuals, so called, who came to pen to deal with the Palestinian right.

I'm looking around for one of them to say, well, we have the same spirit of cooperation we had when we were there. We would like to lead a Palestinian state which is rid of Hamas. Show me, do you know of a single person who said that?

>> Tom Church: I've been looking, too.

>> Richard Epstein: I can't find it. That's why I'm so utterly incomprehensible. The history just disappeared. The particular, everything they do is justified by the fact that Israel exists. And everything that Israel does, is not because Hamas exists, but because it wants to kill innocent Israeli people.

>> Tom Church: Last one here for you, Richard, cuz, I mean, I agree with you.

I think political leadership is what I'm looking for. I'm looking for it on the Israeli side. I'm looking for it on the Palestinian side. I'm looking for it. Obviously, the United States weighs in and has a large say in this. Carl von Clausewitz said, war is politics by other means.

So I need to know what the end state looks like. But really, what do you wanna see from President Biden and from Prime Minister Netanyahu as they, it looks like, I mean, this Gaza invasion or ground activity still hasn't happened yet. I mean, Israel has been holding off, holding off.

And it seems to be, as you mentioned in your column, they're worried about civilians. We're trying to get them out. Hamas is blocking them. What do you want them to stand up and say? I mean, it can't just be, we're going to go destroy Hamas. That has to happen.

What do we need to hear from them about what comes after?

>> Richard Epstein: Well, I think what happens is you basically continue to put pressure on the Egyptians to open the borders. They can't even get material in to feed people, let alone get people out. I think there has to be a really strong effort on that part.

I think the Israelis understand that if there are groups of civilians, even with the Hamas matter going into if there's no firing coming out of these places, it's excessive force to touch them, and you will not do it. And it's also clear that the disproportionate issue is one of constant agony.

Because you know you're going to kill innocent civilians, if essentially they treat them as human shields against attack from Israel. But you talk about humans, civilian deaths, let's go back a little bit. In World War II, there was a massive German bombing, indiscriminate slaughter. The response, essentially, of the British were to take their children, send them to England and send them to the countryside, but not to leave them in London or Coventry.

Hamas is doing exactly the opposite. It's keeping them around so as to create these human shields. And generally, what you do is if you have a really important target, you're gonna commit essentially collateral damage on civilians. If you look at the British and the American attacks on Dresden, 80,000 people died and most of them were children.

And nobody gave any kind of warning. So you've done this, and in this case, it's possible to do it. So I think what the Israelis do is they announce that we will do everything we can to minimize the harm. We're gonna try to win this war. But you have to understand, every time you ask us to pull our punches, you're asking us to sacrifice more human beings to a group of people who deserve no credibility.

Can they win this battle? Well, it's very hard. Just to give you the incident about the hospital. It's very clear that the Israelis would not be so stupid to endorse that kind of attack against that kind of facility. And you then look at every one of the films that deal with this stuff, and it's an errant rocket from Hamas, who have very little quality control over their rocketry anyhow.

About 10 to 20% of them routinely explode because they're made under such sloppy circumstances and so forth. And then even before you do it, everybody's screaming that, of course, it shows Israeli stuff. So what you do is you get a propaganda campaign, and it's one of these things, they put this out first.

You try to correct it, and they just repeat what's going on. And so this is Goebbels, this is the big lie coming over and over again. And it's done with a kind of rejoicing. And what is so dismaying to somebody like myself is there is no restraint on the Arab street against these kinds of allegations.

And it turns out if you look throughout the Middle East and elsewhere, you're talking about perhaps hundreds of thousands of people who believe that the destruction of the state of Israel will make them better. When the moment that were to happen, God forbid, what they would do is engage in the same kind of internecine slaughter that you had when the Hamas people killed the Fatah people back in 2006.

So this is essentially a moral tragedy of the highest order that is taking place under these circumstances. And the Israelis essentially are already being abused. They're gonna be further abused. There's some Israelis who said, well, could we do this? You only get Hamas even madder than they are.

I don't know how they get madder. What they've done, essentially, is so horrendous, they couldn't up the ante if they even wanted to. So it turns out there's no point to appeasement. It will just encourage the same behavior. And you're left with the unhappy task of trying to protect people from their own leadership, which is trying to lead them into a descent into hell.

>> Tom Church: That will do it for this episode of the Libertarian Podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, The Libertarian, which we post on Defining Ideas at hoover.org. If you found our conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts, Spotify, or wherever you're tuning in so that others can find it.

For Richard Epstein, I'm Tom Church. We'll talk to you next time.

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