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The Palestine-Israel Conflict in the U.S. Courtroom
From the long lines at the gas stations in 1974 to the death of U.S. Marines in Beirut in 1983, the Palestine-Israel conflict clearly has become the primary foreign policy issue to influence U.S. domestic politics. At times the conflict has even been fought in U.S. courtrooms. In 1980, for example, the American Anti-Defamation League sought to prevent the estate of a New York City man from bequeathing money to the PLO. A few years later, a federal court dismissed a suit brought by Israeli citizens against five Arab-American organizations alleging that they somehow were responsible for the 1978 PLO attack against an Israeli bus in which 34 people died. During Israel’s invasion of Lebanon, the Palestine Congress of North America unsuccessfully sought a court injunction against Secretary of State Alexander Haig ordering him to halt all further U.S. weapons transfers to Israel. Yet a New York court held that imports from the occupied West Bank did not have to carry the label “Made in Israel.” It’s not surprising that the Middle East conflict finds expression in U.S. courtrooms. The emotional cross currents inherent in the Palestine-Israel conflict made it ripe for judicial sounding. Litigation in U.S. courtrooms on the Palestine-Israel conflict often has impacted on American law and justice, due in part to the manner in which judicial decision-making takes place. Judges, when confronted with a dispute, look to precedents for direction and advice. Rarely do they try to break new judicial ground. One legal scholar has described the process like the creation of a novel whose narrative has been developed by a series of authors: “Each judge is then like a novelist in the chain. He or she must read through what other judges in the past have written not simply to discover what these judges have said, or their state of mind when they said it, but to reach an opinion about what these judges have collectively done...”1 Consequently, litigation arising from the Palestine-Israel conflict concerning the right of free expression, protection from government surveillance or any other Constitutional right is not limited to those people or groups directly involved in the case. A decision by a court in New York can be relied upon by a court in Michigan. The reasoning that justified a court order to tape the telephones of Palestinian activists in Colorado can be used by a New Hampshire court to do the same to local environmentalists. Simply, when a freedom is revoked from any one person, the rights of all Americans have been narrowed. Stephen Bryen and the Question of Espionage: NAAA v. Department of Justice When the man with the moustache was introduced as “Mr. Stephen Bryen of the Senate Foreign Relations Committee,” Michael Saba instantly recognized him as a staff member of the Foreign Relations Committee with responsibility for Middle East affairs. Saba, former executive director of the National Association of Arab-Americans (NAAA), had dealt with Bryen on Capitol Hill on some political issues. Now in private business, Saba was seated in the Madison Hotel coffee shop and waiting for a client. Just a few tables away sat Bryen with a group of men. When some of the men began to speak Hebrew, Saba’s curiosity was piqued. Little did he know that his innocent eavesdropping on the morning of March 9, 1978, would launch a seven-year odyssey dealing with the Federal Bureau of Investigation, the U.S. Justice Department and the question of espionage. Moreover, Saba’s chance encounter also pushed the NAAA into a long and contentious lawsuit against the Justice Department seeking documents from its espionage investigation of Bryen. In February 1985 a federal judge ordered Justice to release to the NAAA some of the requested material. Those documents and others previously gathered offered disturbing evidence of the extent of Bryen’s dealing with Israel and possibly how political and personal forces thwarted a full investigation of the former Senate Foreign Relations aide. The investigations revealed that the men with Bryen were Israeli defense officials waiting for Israeli Defense Minister Ezer Weizman to finish his interview with the Washington Post across the street. For a half hour Saba overhead the group discussing how Israel could best maintain control in the U.S. Congress and what to do concerning the National Security Council. According to the affidavit Saba later gave to the FBI, the conversation focused on “devising a strategy of how this Israeli delegation could affect United States foreign policy determinations. Bryen quite clearly, to me, was outlining what their policy and strategy should be.” Prime Minister Begin’s insistence on a religious and historical justification for maintaining Israel’s possession of the West Bank was undercutting Israel’s credibility in Congress, Bryen warned. His recommendation: Press the security argument. When one man mentioned that President Carter had criticized Israel’s West Bank policies, Bryen told him, “Never let the President of the United States get away with these kinds of statements.” He added, “This administration is so pig-headed that we have to deal with it differently.” Bryen implored them to get Weizman to issue a statement on suspending the construction of further settlements as a way to shift public opinion in the U.S. Finally, when the discussion turned to proposed arms sales to Saudi Arabia, Egypt and Israel, the Senate Foreign Relations aide advised that the Egyptian sale couldn’t be stopped. He then offered to provide the Israelis classified Pentagon documents on Saudi Arabian military bases.
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