This past weekend I had the good fortune to attend an unprecedented two day seminar at Hastings College of Law in San Francisco, Litigating Palestine: Can Courts Secure Palestinian Rights? With indomitable spirit, one of the first speakers, Noura Erakat delivered a presentation "Palestinians in US Federal Courts: Constructing a 'Terrorist' Prototype" with such prescience and clarity I approached her at the end of the panel and requested the possibility of posting her speech here. She published her speech over the weekend at Jadaliyya and generously granted us liberty to reprint at our own discretion. I hope everyone takes the time to read the entire article Constructing the Prototypical Terrorist in America: Arab, Muslim, and Palestinian.
Erakat opens with the hate rally in Yorba Linda Community Center, an event Adam covered here earlier this month but takes the discourse to a whole new level deconstructing what it means to be a American National and how, particularly through our longstanding relationship with Israel, Israel is incorporated into that National group status whereas minorities (Arabs, Muslims and in particular Palestinians) remain on the 'outside'. Unsurprisingly along with them their supporters also emerge as outsiders too.
(all bolded text is my own)
The social construction of race in the US has a rich legacy that has categorized white, black, and non-white others in the creation of an imagined ethno-national American. Several processes work together to construct racial identities, including racial profiling, the deployment of Orientalist tropes, and the distinctions between nationality, citizenship, and identity.
While there is no legal difference between the American citizen and the national, in social practice there exists a hierarchy of citizenship that affords the perceived American national, read as White, a presumption of citizenship as a matter of identity. Membership in the US national fabric is based on feeling or affection to someone else based on kinship or feelings of solidarity/likeness, which excludes racial minorities and diminishes their ability to exercise citizenship as a political or legal matter. Therefore, racial minorities may be entitled to formal rights as citizens but they will not represent the nation as they are excluded from the American body politic, to the contrary “ the consolidation of American identity takes place against them.” Whereas naturalization is supposed to challenge the immutability of racial difference by bestowing insider status to new citizens, such status has only been afforded to European immigrants. Unlike their counterparts, racial minorities are relegated to “second class citizenship.” Moreover the group-making process is one marked by “boundary construction, akin to what sociologists call group-making in the tradition of Weberian social closure.”
Foreign policy plays a key role in this group-making process in two ways. First, it reifies belonging by constructing the “other” whom threatens the coherence of the national body politic. Second, the other is excluded because the “US is particularly prone to displacing its foreign policy conflicts onto the members of its community who are perceived to be affiliated with, or responsible for, the external threat by virtue of their transnational identities.”
While critical race scholars have demonstrated how immigration law, racial profiling policies, and mainstream media portrayals have worked to create a group that others and excludes Arabs and Muslims as menacing threats, intransigently foreign and disloyal—this process has not accounted for Israel’s centrality in the construction of an insider American identity. The US’s long-standing relationship to Israel may have begun as a strategic choice at the height of the Cold War and the ascent of Pan-Arab nationalism, but it has come to constitute a pillar of US identity. The US political establishment- its legislature, executive branch, and judiciary- works in concert to construct the national boundaries that include Israel and exclude those critical of the State and its policies. In light of this, the prototypical terrorist is not only Arab and Muslim, as would be the case in an examination of US-domestic policy only, but also Palestinian. Palestinian in this context meaning all actors posing a threat to Israel regardless of ethnic and national distinctions.
Congress’s response to the settlement row in Spring 2010 exemplifies Israel’s status as “insider,” as opposed to political ally. In the aftermath of Vice President Biden’s embarrassing visit to the Middle East where Israeli Prime Minister Benjamin Netanyahu rebuffed the US’s calls to halt settlement expansion scores of Congressional members from both sides of the aisle lined up to chastise the Obama Administration for its public handling of the affair. Despite being the source of US foreign policy, no less than twenty-three members expressed terse disapproval either in press statements or from the House floor. Several dozen other members sent four open letters to the Obama Administration as well. Significantly, the lawmakers’ choice of language mirrors an AIPAC press release dated March 14, 2010 and therefore nearly every member echoed the sentiment that Israel should not be treated like any other country but rather with heightened sensitivity and special treatment. Representative Todd Tiahart described President Obama’s public position as “disrespectful,” and characterized Secretary Clinton’s decision to “openly question” Israeli policies as “inappropriate” as the US has a “moral and strategic obligation to support this beacon of democracy in the Middle East.” (March 13, 2010) No other member better captured the centrality of Israel within the US national identity as did Representive Mike Pence who explained that “[t]he American people consider Israel our most cherished ally and we her closest friend and guardian…[a]s I just told the Prime Minister, I never thought I'd live to see the day that an American administration would denounce the State of Israel for rebuilding Jerusalem…[t]he American people and the American Congress in both parties support the State of Israel.” (March 23, 2010)
The lawmakers’ choice of language and tone both reflects Israel’s insider status and works to construct its critics as threats to US national security. While the description of Israel as the only democracy in the Middle East, works to distinguish Israel from its authoritarian counterparts, it also acts as a marker that others Israel’s Arab and Muslim neighbors. Their written and oral statements condemn the US President in defense of a foreign state; describe their relationship to Israel as moral; describe the US as Israel’s guardian; and affirm the immutability of the US’s relationship to Israel irrespective of circumstances. This behavior is more reflective of a family dispute than a diplomatic affair and works to reify the boundaries circumscribing American national identity wherein Israel enjoys the privileges of inclusion.
In cases adjudicating the Arab-Israeli conflict in which claimants charged Israeli actors with crimes against humanity, federal courts’ undue deference to the executive in its use of the political question, a juridical principle that prevents the judiciary from adjudicating an issue that the Constitution textually commits to another branch of government, doctrine both reflects and establishes Israel’s insider status. In cases arising from a similar context but where the defendants are Palestinian and Arab actors accused of committing terrorist acts, federal courts did not invoke the same juridical prohibitions thereby constructing the “outsider” status of Palestinians.
Legislative and executive action has virtually ensured the success of cases filed against Palestinians. The Anti-Terrorism Act (ATA) refers to a collection of terrorism related provisions that provide US nationals with civil remedies and criminal penalties for acts of international terrorism. The available claims are also actionable by the claimant’s estate, survivors, or heirs. While the ATA’s definition of international terrorism does not limit terrorist actions to non-state actors, Section 2337 of the statute prohibits suits against any state actors. In effect, states cannot be held liable pursuant to the ATA with the exception of those “state sponsors of terror” that fall within the framework of the Flatow Amendment, Iran, Iraq, Syria, Sudan, Cuba, North Korea, and Libya. Coupled with the Palestinian Anti-Terrorism Act the success of ATA suits against Palestinians is nearly guaranteed.
For a breakdown of legislation and court cases supporting the construction this 'Terrorist' Prototype": Constructing the Prototypical Terrorist in America: Arab, Muslim, and Palestinian is a must read. Here's the finale:
Together all three branches of government have participated in a group-making processs wherein they institutionally equate threats to Israel as terrorist ones and those actors who pose such threat as terrorist, whom I define here as “Palestinian.” Distinctions are erased and all actors are portrayed as terrorists without nuance, let alone applicable definitions of terrorism. This group-making process reflects the treatment of Arabs, Muslims, and Palestinians in the US. Consider then the tone of a Detroit law enforcement officer described by an attorney representing Arab Americans: ‘it was the stated opinion of the FBI that every single Arab in Dearborn is either a member of Hezbollah or a sympathizer.” US law enforcement officers consider Arab-Americans in Dearborn as potential security threats because of their presumed affinity to Hezbollah which has never attacked the US or it citizens but instead directed its militancy at Israel which had been an occupying power in Lebanon until 2000. Would the same hysteria exist about the Chechen rebels against Russia or Albanians in Serbia? Despite their Muslim identity, they may not be raced in the same way because they do not pose a threat to an entity that has been granted insider status and constructed as part of the ethno-national imaginary of the “true American.” The Palestinian, as an identity characterized by antagonism towards Israel, is disloyal precisely because Israel is constructed as part of the US fabric, and opposition to the State or its policies equates to being with “them” against an American “us.”
Noura Erakat is a Palestinian human rights attorney and activist. She is currently an adjunct professor of international human rights law in the Middle East at Georgetown University and is the US-based Legal Advocacy Coordinator for Badil Center for Palestinian Refugee and Residency Rights. Most recently she served as Legal Counsel for a Congressional Subcommittee in the House of Representatives, chaired by Congressman Dennis J. Kucinich. She has helped to initiate and organize several national formations including Arab Women Arising for Justice (AMWAJ) and the U.S. Palestinian Community Network (USPCN). Her publications include: "Litigating the Arab-Israeli Conflict: The Politicization of U.S. Federal Courts" in the Berkeley Law Journal of Middle Eastern and Islamic Law, "Arabiya Made Invisible: Between the Marginalization of Agency and the Silencing of Dissent" in a Syracuse Press anthology, and "BDS in the USA: 2001-2010," in the Middle East Report.