Earlier this week, I wrote a story about the ACLU’s role in opposing the anti-BDS legislation currently discussed in the Senate and about Faiz Shakir, the organization’s national political director. I asked the ACLU for a comment before publication, but did not hear back before deadline. After the piece came out, and began to cause a minor firestorm online, the ACLU did call back—and it turned out that they had some interesting things to say.
I am now happy to be able to present to my many engaging fans on the Internet the following transcript of a direct conversation with Faiz. We were also joined by Brian Hauss, a staff attorney at the ACLU.
I don’t agree with all of the statements made by Faiz and Brian below. In fact, I believe that it is the BDS movement—not the anti-boycott bill—that poses an active threat to free speech on campuses, and elsewhere. I further believe that a movement that uniquely targeted the identities of Muslims, African Americans, or any other minority group in the way that the BDS movement targets Jews, and called for a boycott of a Muslim state, or an African state, ostensibly to redress whatever injustices were being committed there, would receive exactly zero support from the same people who actively seek reasons to legitimate a cultish boycott movement that openly seeks to eliminate Israel.
But as a card-carrying member of the ACLU, I was heartened by Faiz’s willingness to engage and argue about politics and ideas in a sincere and personal way, which is the place where writing and politics ideally should meet.
Liel Leibovitz: Could you tell me a little bit about the letter that you signed concerning the anti-BDS bill, and how you understand this particular legislation?
Faiz Shakir: I appreciate that you started with that, because I do think it’s really critical that we start on the substance of the matter and I would like to have a bit of a conversation regarding that. Of course, the ACLU’s concern here is that we may be criminalizing speech, chilling speech, and chilling political beliefs—targeting certain political beliefs through this bill. Maybe it was inadvertent, or maybe it’s intentional, we’re not sure, but the fact is that the bill as constructed would target individuals and potentially cause them legal jeopardy for expressing support of a boycott that they might feel is in their own political belief system. And that kind of approach from the government sends a very chilling signal to all that certain speech is going to be criminalized. That’s a first amendment concern for us.
LL: I’ve read the bill carefully, and walked away with a very different interpretation. I would really appreciate a deeper dive into your logic here.
FS: Right, and so let’s look at the language of the bill. Because I had a conversation with Senator Gillibrand about the bill as well, and if you look at it, it says that the president shall issue regulations prohibiting any United States person etc. Right? That’s in the bill. Prohibiting any United States person. And the bill goes on to say, any person who “supports any boycott fostered or imposed by any international government organization.” So if you’re a person who is indicating support for a boycott that is seen as being fostered or imposed by the UN, say, you’re in legal jeopardy. And you know better than us about the UN engagement thus far on boycotts—I’ve already taken a stance on it in March 2016—presumably collecting information about companies operating in the West Bank. So if someone like, let’s say, Linda Sarsour or any political activist who disagrees, who might be inclined to be supportive of the BDS movement, gets out and starts speaking at a rally in support of something that the UN has resolved, or cites UN information, there’s a real concern, I think, that that individual is now in contravention of this proposed law. I think there’s also a concern of targeting companies just for sharing information. I mean, the mere sharing of information—that’s protected speech. As a business, you should be allowed to voluntarily share information of your choosing, and that is also being criminalized.
Brian Hauss: So, for example, the bill specifically says that the March 2016 UN Human Rights Council Resolution is a boycott, divestment, or sanctions activity, that can be used politically as a request for a boycott. And so, one of the bill’s terms suggests that if an individual goes on Twitter or Facebook and says, “I’m no longer buying products from any of the companies listed in the database that the UN created pursuant to that resolution,” that could be read as restricting trade relations in compliance with an international governmental organization’s request to boycott. And that would, conceivably, be sanctioned, either by civil fines or criminal penalties under the law. Similarly, if a business got on Twitter or Facebook and said, “in support of the UN human right council resolution, we are not going to buy any of our products from the companies listed in the database,” that would be furnishing information, which is also explicitly prohibited under the law. And that’s actually one of the critiques that Eugene Volokh raised in his Washington Post opinion piece on the law. So I think associated risks—the number of specifications in that regard, but additionally, the very vagueness of the law itself, as even some of the law’s sponsors have come out and said that the law’s terms could be clearer—is itself a potential harm because it shows people from engaging in this advocacy. They don’t know—it’s not clear from the law if they would be subject to criminal sanctions or civil fines. And so, in those circumstances, the safest course is always self-censorship. At the ACLU, we see that as a real First Amendment harm.
LL: How do you then respond to those, including the senators who wrote the bill, who say that this is merely an extension of 30 or 40 year-old laws that have stood up in court?
BH: Well that’s what they say, but I spent three years in law school and I took a close look at this bill and it seems to do a lot more. And again, we’ve published an FAQ on our website explaining exactly why we believe this bill does more than just, say, replace the European Union along the list of foreign government entities subject to the 1979 law. In particular, again, by saying that the UN Human Rights Council’s simple creation of a database is itself a boycott regime would dramatically expand the scope of the 1979 law. The 1979 law focuses on coercive boycott regimes imposed by foreign countries. They say if you wanted to do business in our country, you’re going to have to comply with our boycott. That is not what the UN Human Rights Council resolution does. It just says we’re going to list a bunch of companies that we believe are violating human rights, and we urge people not to buy their products. But that is different than saying that if you want to do business in our country, you have to comply with this boycott.
FS: It would be one thing if Congress decided they wanted to simply go on record with a resolution and state that they wanted to stand in opposition to the UN’s activity and just essentially make a statement saying that we oppose the UN’s activities. That’s fine. But what they’re trying to do now is impose penalties, and once you get into the penalties phase, as Brian thoughtfully discussed here, now you’re chilling speech. Now you’re targeting people with an effort to chill them from speaking out.
LL: So if you were to advise a legislator about how to go ahead and approach a BDS-oriented or bill or legislation oriented towards fighting BDS, you would recommend that we do what? Which elements here would need to be removed in order to meet your criteria, or your approval?
FS: From my perspective, any time we’re doing punishment, as civil fines, the criminal imprisonment, it’s going to be hard to structure a bill that imposes those kinds of fines and penalties on speech and avoid our criticism. We’ll always take a stand on that. And we welcome anyone urging us to take a stance on any bill because that is a clear principle of ours. I think the concern on the penalty is real large. I think there are ways to recraft the language, which I know Senator Cardin and a few of his colleagues are looking at, so obviously, putting the penalties aside, there are ways to ensure that US persons aren’t targeted. To go back to the original question about what kinds of activities you’re trying to prohibit, if you’re talking about the EU and the UN, these are not commercial trade entities, so the concern over whether we want to target trade, I don’t think you do it by targeting the UN. So if you want to punish the UN, we need to be a little bit clearer about how you’re doing so that doesn’t implicate each concerns. And I don’t want to get into the business of writing the bill for them but I’m just laying out some of the concerns that we would outline. Brian, what else did I miss there?
BH: The one main thing I would add is that we also believe that the government can’t condition benefits or contracts on people’s forfeiture of their First Amendment rights. And that’s an issue we see with a lot of state bills that have come through, and we’ve objected to those and we’ve been objecting to those for years on the grounds that they’re targeting political activity.
LL: Why, for example, is a state bill that says we will not do business with anyone who holds this position—how is that dramatically different from saying we will not be doing business with nation X?
BH: Because American citizens have First Amendment rights. And if a state is going to say that we’re not going to do business with an American citizen because they refuse to take a loyalty oath, for example, the courts have struck that down. That’s a violation of the First Amendment. Similarly, government employees have First Amendment rights, government contractors have First Amendment rights. So the states cannot condition the provision of benefits to American citizens on the forfeiture of their First Amendment rights.
LL: Would the same be true for sanctions? If we decide, for example, to go on a full-fledged sanctions against Russia for American companies, would you consider that a violation as well?
BH: In general, trade embargoes are different than anti-boycott laws because trade embargoes say everybody can’t trade with this country, can’t do business with companies in this country. Anti-boycott laws are not compelling everyone to do business with a particular country, they’re just saying that people who for politically motivated reasons are not doing business with companies in a particular country are not going to get government benefits or are going to be fined or are going to go to jail. By targeting specifically political activity, that’s where the First Amendment problem comes in.
LL: Thank you for that. I want to move on and address criticism, Faiz, that there’s a pattern of you being highly critical of Israel throughout your career. Is that an unfair characterization?
FS: Absolutely. And I was disappointed to see the characterization that I have been frequently criticized for taking or defending positions that many consider troubling, anti-Israeli and, at times, anti-Semitic. I want to take through each of those individually, Liel, because I want to be an open book and address whatever those concerns are. You certainly don’t know me personally, so I’m guessing that these are things that were shared with you and you were prone to believing, at first, which I understand, I’m not faulting you. But I prefer to tackle each of these head-on, directly. So, I think, the one that you just raised if I remember correctly this is about Think Progress writers at the Center for American Progress. So, what is it that they did or said that caused concern?
LL: The major backlash was about promulgating the Israel Firster’s accusations, which were deeply troubling to the Simon Wiesenthal Center, the ADL, and others.
FS: So let me take that one first, and I appreciate you raising it. So that Israel First label was used by one individual on a personal Twitter account that no one at the Center for American Progress, including myself, had approved of or even knew about, quite frankly. And this is back in the days when Twitter was not seen as integrated in with your work product.
LL: Those innocent days, so long ago.
FS: It used to be, you know, your personal forum where you gave your views and I think we obviously learned a lot through that episode, but when we found out about it, we asked that author to clarify and remove that immediately. And I just want to make clear that I was the editor of the blog and the staff, and on that article and the publications that we wrote, you would not have ever found that language. And so, I feel like, to be honest with you, Liel, it feels like guilt by association a bit, that someone else did something and Faiz should have seen it and therefore it’s his fault and he’s just as terrible as anyone who he had a disagreement with. I would just urge and ask you to hold me accountable for what I did, and I would argue that I didn’t—I acted appropriately.
LL: Do you feel that the pretty significant wave of criticism from Jewish organization at the time was overblown?
FS: I think it was unjustified. It was unjustified because it was in reaction to, again, one person on a staff of 30 people at one or two instances, if I can recall correctly, using that phrase, and I don’t think the individual did it with anti-Semitic intent, but nevertheless I empathized with the argument of those who said, “That is language we find offensive,” and I urged the author to remove that and to clarify his intent, and he did so. And so I felt that I took the appropriate actions. In all of our writings, we never went into a zone of doing anything that would be anti-Semitic or anti-Israel, and, nevertheless, we received a ton of fire from groups that I felt was unjustified and still feel like it was unjustified because it’s just not a true reflection of my own character, or my beliefs or values.
LL: Do you feel the same was true for the controversy caused over the Islamic Awareness Week at Harvard that raised funds for the Holy Land Foundation?
FS: That one was very frustrating to me, Liel, because I don’t really know anything about that. I wasn’t involved—let me be clear on this. The Harvard Islamic Society asked me to be the co-chair of Islam Awareness Week, which entailed me going to events around campus and talking about Muslims and Islam. I remember one event was standing in front of the Widener Library at Harvard doing an “Ask The Muslim” booth. And that’s what I did. Like that was one event. I remember one person—I had to corral someone to do the call, the adhan, before prayer so I asked one of our colleagues to do the adhan in public and that was one of the things I did, too. Those are the things that come to mind of what I did. But apparently what happened at the end of that week is that there was a dinner that was, I believe, a bunch of universities in the area in Boston came together and held a fundraising dinner. I want to be clear, I had no role in the fundraising dinner, nor did I attend the fundraising dinner. And so again it feels to me like guilt by association that’s dogged me because I feel like the headline there was “Faiz Was a Muslim at Harvard—Breaking News.” And I was, but I didn’t partake or do any of those activities, and yet because somebody else did them, it’s like the three degrees of separation and now somehow I’m like equally at fault and sinned for all of those acts of others. So that’s how I honestly feel about that.
LL: I thank you very sincerely and deeply for that, but I want to get to one last question.
FS: Ask all of them, because I want to get to all of them.
LL: It’s a bit thorny. So, look, I am a card-carrying member of your organization, and if my membership has expired I will gladly renew it because I care deeply about what you guys do. I was, however, reading some of your comments after the travel ban, which I opposed very strongly, and it struck me that these comments came out as kind of overtly partisan rather than substantial. That is a criticism I know many at the time and since have shared, saying that it feels as if you are a Democratic party veteran who’s trying to move the ACLU towards a more political role, as opposed to its more traditional role. Again, I’m hardly the first to voice that criticism.
FS: Was there a particular comment that I said that caused concern?
LL: The comment that was cited the most was the one where you said, “I hope the president enjoys losing.”
FS: I would hope you’d appreciate that that was done tongue-in-cheek, because of course Donald Trump has said many times that he hopes we like winning, we’re going to win so much. That was a moment of much exuberance at the ACLU, winning a case against him, so I used a turn of phrase of the president’s against him. I feel again it’s a bit like somebody else with a different resume could say the same thing and not be chastised in the manner that I am, but I think some of my record—having worked for Pelosi and Reid—I think it’s seen, therefore, in a different light. And I am the Political Director at the ACLU, right, so I’m not leading our lawsuit in the courts. I’m making advocacy arguments, and I think it’s helpful that when you’re making advocacy arguments you’re trying to reach the hearts and minds of people and convert them. And that was a big moment for us, that 72 hour period, we had millions of people come to us, donating money and donating their time and their energy and their emails, and I think I shared that exuberance of the moment. So I don’t apologize for it, but I hope that you would appreciate that that was just a reflection of the context of the moment.
LL: I was wondering what else do you think that our readers should know in light of our conversation and in light of my piece? What else should they understand?
FS: I really appreciate that, Liel; that’s really nice of you to offer that question. And here’s what I’ll tell you, having read your piece, and I’m sad to say there was an instance or two before that I think someone had jumped to conclusions about me, and I appreciate the opportunity that we have to talk directly because I think we learn more about one another when we talk directly about these things, and I appreciate you being willing to jump on the phone because many people were not willing to do that, even after making some judgments and accusations about me, and you were willing to do that, so I appreciate that. And here’s how I honestly felt reading the article: When you’re a Muslim in politics, it feels like you’re operating under a constant cloud; that there’s this inherent skepticism about you, and that that cloud is ready to pour down rain on your head for the slightest misstep or no misstep at all. And I think in this instance I would urge you to reflect and your audience to reflect on the fact that some information came into your hands and it ended up on a webpage and we could have had this conversation before that happened, but there’s a reason why it ended up on a webpage so quickly and came to certain judgments and accusations about me that I felt were unjustified, didn’t give me an opportunity. And it’s not about you personally, it’s about that culture—what does that mean? How does that arise? Why does that happen? And as I reflect on it, it feels like it happens too often and I think the only way to tell us how to do the kind of thing that you’re willing to put yourself up for right now, which is having the conversation, questioning the original judgments that you came to, and being willing to have a conversation. So I thank you for doing that but I also want to share with you my own personal concerns that this kind of thing happens too easily and to frequently to people of my skin color, of my name, and of my religious background.
LL: Thank you very much for taking the time.
Liel Leibovitz is editor at large for Tablet Magazine and a host of its weekly culture podcast Unorthodox and daily Talmud podcast Take One. He is the editor of Zionism: The Tablet Guide.