Clear and present danger is a familiar term. As a legal doctrine, introduced by Justice Holmes immediately after World War I, it serves as a rough yardstick to determine whether our governments can restrict basic rights, notably freedom of expression. To curtail liberty, the threat to security or some other fundamental governmental responsibility must be overt.
In an opinion upholding the conviction of Communist Party leaders under the Smith Act, Judge Learned Hand of the U.S. Court of Appeals in New York reformulated Holmes’ doctrine by adding the element of probability. Even if the danger was clear and present, if its realization was improbable, greater latitude would be given to individual liberty.
I will leave it to the constitutional law fraternity, of which I once was a member, to figure out how a concept that in its language and intent is clearly on the side of freedom of expression was employed by both Holmes and Hand in the immediate cases before them to curtail freedom. If we leave the legal arena and explore the political and psychological underpinnings of the concept, it’s evident that the governmental obligation to provide for the security of its citizens will nearly always tip the balance in the direction of allowing actions that are more restrictive of liberty than the pristine words “clear and present danger” would ordinarily permit.
In short, it’s usually better, indeed morally obligatory, to err on the side of caution, to use national security as a sincere – as contrasted to cynical – reason to take actions that limit basic rights. Caution, is in fact, an underlying theme of many social relationships, as when people drive or when banks require additional security. We act prudently or cautiously in much of what we do and while individuals may throw caution to the wind if others are not hurt thereby, governments must minimize risk. That is why we accept all kinds of post-9/11 inconveniences and indignities, at airports and elsewhere.
Which brings me to Israel. Whatever we may think about peace negotiations and the countless issues that swirl in the endless Israeli-Palestinian conflict, the dangers facing Israel are clear and present and they are not at all discounted by their improbability. The dangers faced from Palestinians and other Arabs are not imaginary or speculative and this is not because of suicide bombers and terrorism. The Israeli government’s obligation to be super-cautious arises from the depressing recognition that too many in the Arab world regard any agreement with Israel – any concessions made by the Jewish State – as interim steps that do not alter the goal of destroying Israel. This is a frightening reality that transcends by far the threats to security that are Israel’s daily fare.
Since its security is endangered and what qualifies as adequate security is a question that cannot be determined by a universally accepted calculus, Israel’s leaders are morally obligated to err on the side of caution and to make decisions that provide for an extra measure of security. They have no obligation to make Washington happy, although they cannot ignore or openly offend the White House, nor are they obligated to march to the tune composed by editorialists, foreign governments, the architects of the Geneva Accord and the retired heads of the Shin Bet.
That’s why the security fence being built is a necessity and not just a good idea and why Prime Minister Sharon’s disengagement plan is preferable by far to Washington’s Roadmap. His speech last week at the Herzliya Conference was extraordinary, at once bold and eloquent, and I think a major document in the history of the State. The fact that the Times went bonkers over it and Palestinians denounced it adds to my feeling that he is on the right track. He is right that Israel should exit from Gaza because it is not in Israel’s interest to control the Palestinians and because remaining there makes Israeli military personnel and other Jews vulnerable without adding to the nation’s security. Hopefully, as well, as the Prime Minister said in this speech, “there soon will be a democratic Palestinian state with territorial contiguity.”
Even as Israel is given the strong benefit of the doubt on how to protect itself, there is room for debate and disagreement over particular policies. Whether and where to build the security fence is a case in point. As wrongheaded as the Geneva Accord is, the hysterical reaction to it in some quarters is overblown and self-defeating because it feeds the impression that Geneva’s opponents are intransigents who will not support any concessions. The advocates of the Accord have a right to their position and they certainly do not have a lesser right to express their views than those who advocate a much harder line.
Yossi Belin’s grandstanding is a turn-off, I suspect including to some who share his outlook. His eye is always on the media and on political forces outside of Israel. The Geneva Accord isn’t his first scheme and I suspect it won’t be his last as he wanders in the political wilderness.
Israel must be given great latitude in security matters. No country faces the dangers it faces and no formula can delineate what constitutes sufficient security. There is a corollary point, which is that as Israelis and Jews of different viewpoints express their opinions about what Israel should do, it’s a good idea for everyone to remember that they are skating on thin ice, that what they advocate is based on what they now know and feel and their views therefore may be subject to change.
I supported Oslo, as did many others, and I have had a change of mind about an incremental approach to negotiations with the Palestinians. Mr. Sharon and leading Likudniks are now more amenable to territorial concessions. Ideology adds nothing to Israel’s security and it may detract from it because to ideologues new information or new developments are usually inadequate reasons to reconsider their positions.