Sunday, April 03, 2011

The Goldstone Report still stands as a reasonable document

The South African jurist Richard Goldstone voices further and second thoughts regarding his eponymous report in the Washington Post. Likud supporters such as George Mason Law Professor David Bernstein are now chortling, and we can expect some real braying in the little journals around the nation that cater to members of Jewish synagogues and temples. And we'll hear it around the dessert table after Shabbat services at those same temples and synagogues, even among those Jews who say, "I'm a liberal, but when it comes to Israel..."


My initial take on the Report was here.

And my response now was contained in the following comment I posted in response to Professor Bernstein at the website:

The Goldstone Report was released on September 15, 2009.

In October 2009, Goldstone was already trying to explain that it was a preliminary finding and that further investigation was necessary, which was consistent with the report. See:


And here is also an article from the same time where Goldstone says an internal Israeli investigation would put pressure on Hamas to do the same, which explains why Goldstone has NOW said Hamas’ failure to investigate should be noted and criticized:


Too bad the braying Likudniks like an Alan Dershowitz or the folks at AIPAC, who claim to speak for most Jews in America, are going to have their field day…They overstated the criticisms of the Goldstone Report in order to justify the Israeli government’s abject and contemptuous refusal to cooperate with Goldstone, and now they will argue that there was never any truth to any charge against Israeli conduct during the Gaza incursion. And please, folks, I supported the incursion so don’t make assumptions about me on that one…:-)

David, you are a lawyer. If a judge denies a defendant’s summary judgment motion, does he believe the plaintiff’s case is a winner? No, he just believes there is a prima facie case and it needs a trial. If at the trial, the same judge tries the case, he may well find against that same plaintiff (MF Blog adds for lay readers: ...after the judge hears further facts and gets to finally weigh the facts previously provided by each side). I’ve seen it happen, and so have plenty of trial lawyers. That is what Goldstone was doing, and obviously too many of us couldn’t ever get past the political rhetoric surrounding the report.


I love the Internet! I stand--well, sit really, corrected--that the proper analogy is not to a motion for summary judgment. I re-read the Goldstone report early this morning, and realized there were some facts found, and others that were tentative findings. It is really a first step or indictment, as I note in my response to the first commenter. It does not pass legal judgment as if it was a trial. Thus, it was a first step, i.e., again, indictment. I also re-read Goldstone's op-ed again, and re-affirmed his careful statements that since the report was issued, Hamas has done no internal investigation, and Israel at least undertook some steps to answer the report and take some actions. He also said that Israel proved to him that it had a reasoned response to the killing of a family in one example showing it was unintentional, and he concluded that with the new evidence, there is insufficient evidence to say Israel intentionally targeted civilians.

Still, when one considers Israel refused to cooperate in preparing the report when it counted, for the pro-Likud crowd to rip into Goldstone for producing a one-sided report, when he recognized at the time Israel was essentially defaulting, merely shows once again how the Likud ideology of Israeli and American politics work.


At April 4, 2011 at 11:14:00 AM PDT, Anonymous Anonymous said...

No harm, no foul on the Goldstone Report, eh? After all, it was only a preliminary report offered to the public before all the facts were in, sort of like a bench memo regarding the denial of a summary judgment motion. Never mind that Israel's mortal enemies, i.e. the left and its Islamic fundamentalist allies of consequence, exploited the Report to defame Israel in the court of public opinion for almost two years. Nope. That's not a problem. And by the way, Goldstone's pregnant non mea culpa only enhances his credibility as an unbiased UN investigator. Yes, I buy that.

But then Goldstone wasn't acting as a disinterested arbiter, was he? Indeed, didn't his report indict the IDF for war crimes based on incomplete evidence that he gathered? It follows that Goldstone acted as an interested party with respect to his indictments of the IDF. And in America's justice system, interested parties cannot rule on their own summary judgment motions. Therefore, Mr. Freedman's analogy is entirely specious. And clumsy, too, because civil rules (e.g. FRCP 56 - summary judgment) generally aren't applied in criminal cases, such as ones involving war crimes.

All in all, the Goldstone Report and its defenders' arguments display the usual outcome of crooked, incompetent, or sloppy lawyering, or some combination thereof.

At April 4, 2011 at 3:47:00 PM PDT, Blogger Mitchell J. Freedman said...

Yes, I will stand corrected about the Motion for Summary Judgment analogy. I've looked at the Goldstone report again (I only saw it shortly after it was issued) and I must admit it reads more like an indictment than an MSJ. It was still tentative in that it was not a final judgment nor a final conclusion on those issues that mattered most, which was whether the IDF consciously went after civilians. The word "appears" or "appear" does show up in those instances, which shows a caveat.

Also, Justice Goldstone was not the party to sit on the ultimate tribunal, so he was disinterested to that extent.

If one reads carefully what Goldstone has written in the op-ed, one sees the careful sensibility he brings. Not to ideologues for the Israeli government, however...

I'm in my work day and was happening to check the blog (a rare occasion as I wait for a client meeting to start...:-)) and saw a chance tor respond to the anon. commenter.

At April 4, 2011 at 7:09:00 PM PDT, Anonymous hip703 said...

It is a little more than embarrassing when the U.N. "Human Rights" Council includes the likes of China, Cuba, Egypt, and Saudi Arabia. I recall Sudan being on the council recently, too. As you know, I am critical of the human rights policies of this country, but those countries take totalitarianism to a whole new level.

David Bernstein is an interesting guy. His historical Constitutional scholarship is learned, interesting, and right on target. But when it comes to the topic of Israel, he devolves into an unfair heckler of those who do not share his aggressive Zionist worldview.

Randy Barnett is another one. Great when it comes to individual rights, and historical Constitutional scholarship. But then he has the neocon, preemptive War side to him.

What is the common denominator? Bernstein teaches at George Mason, Barnett at Georgetown -- so they are both to close to the Potomac. They are Beltway Libertarians.


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