It was a classic Friday night document dump — information released after the daily news cycle had ended on a Friday, and a long two-plus days until the Monday news cycle started.

It’s a tactic we are used to seeing from politicians disclosing bad news.

It’s not a tactic people expected to see from the Virginia State Bar, a government agency operating under the authority of the Virginia Supreme Court, tasked with regulating admission to and administration of attorneys in the Commonwealth. The Virginia State Bar should not be confused with the non-governmental, voluntary Virginia Bar Association.

The Friday night document dump was an email from Virginia State Bar President Kevin Martingayle that a mid-year legal seminar in Jerusalem was being cancelled because of discriminatory Israeli policies.

The move came as a complete surprise, because the Jerusalem Seminar already was accepting registrations, and was completely planned out in all detail including transportation and hotel.

Virginia State Bar Mid Year Legal Seminar Update 2-27-2015 cropped

There does not appear to have been any public forum or discussion of the potential cancellation at which supporters or Israel or those interested in maintaining the political neutrality of the Virginia State Bar could respond or provide alternative information.

Such a public airing is important because the anti-Israel boycott movement frequently issues false or misleading accusations of Israeli travel restrictions.

At the Modern Language movement in 2014, a resolution was introduced condemning “arbitrary” Israeli denials of visas to academics wanting to visit the West Bank. That language was removed when the accusation was revealed to be false at an open debate at the MLA’s annual meeting, and data were presented showing the Israeli visa denial rate for U.S. academics was a small fraction of the U.S. visa denial rate to Israelis.

At the MLA, sunlight disinfected the anti-Israel propaganda. There was no such sunlight on the Virginia State Bar decision.

Virginia State Bar Finally Issues Explanation

The original Virginia State Bar announcement was long on accusations of Israeli discrimination, but very short on details. Neither in the original announcement nor in interviews Martingayle gave to The Washington Times and WTOP were the details fleshed out:

Kevin Martingayle, president of the Virginia State Bar, says security was a concern when Israel was chosen as the destination for the annual members’ legal summit. But they concluded it was safe.

However, the trip was canceled after it was determined in conversations with the State Department and Israeli Embassy that not every member of the bar would be allowed entry, Martingayle said. He did not elaborate on why, but said simply that every member would go, or none of them would go.

Apparently feeling some media pressure, the Virginia State Bar issued a new statement emailed to members tonight with slightly more of an explanation (emphasis added):

March 29, 2015

From the Desk of the President—Midyear Legal Seminar

On Friday March 27th, we canceled the Virginia State Bar’s planned Midyear Legal Seminar trip to Israel. The decision was based primarily on a U.S. State Department advisory: http://travel.state.gov/content/passports/english/country/israel.html, “Entry, Exit & Visa Requirements.” We were forced to conclude there were potential difficulties some of our VSB members might face in obtaining entry to Israel. Additionally, we were well short of the required number of confirmed attendees necessary for the trip to proceed.

President-elect Edward L. Weiner, chair of the Midyear Legal Seminar Committee, communicated with the Israeli Embassy. An embassy official expressed a desire to facilitate the trip but acknowledged that security protocols are strict and could lead to exclusion or restriction of some VSB members.

In the face of this information, we felt it necessary and appropriate to forego this trip. This was not a political decision and is not a “boycott.” We are an inclusive organization and do not discriminate against any religion.

Unfortunately, some mischaracterized this decision as anti-Israel and anti-Semitic, even going so far as to mislabel it as a “boycott.” Although the message was sent over the president’s signature, we jointly drafted and approved what was sent Friday night. Apparently we could have done a better job of explaining the situation and decision. We are writing now to provide further clarity.

Our decision was not based on any political factors or influences. We understand that Israel is in a difficult position when it comes to security. We are not expressing opinions regarding Israel’s border security measures. We are merely recognizing the reality that our very large and diverse membership, consisting of well over 40,000 members, includes individuals who may encounter lengthy examination and possible rejection in attempting to navigate the immigration security procedures in Israel.

You may recall that on March 25, 2015, we sent a message urging VSB members to sign up for both the Israel trip and the Annual Meeting in Virginia Beach. We very much wanted the Israel trip to be a success and were trying to reach the required number of participants for it to be a go. We deeply regret that a combination of circumstances led to the trip’s cancellation, and we also regret that our good faith efforts and decisions may have been misinterpreted and misunderstood.

We remain committed to the core objectives of the VSB: public protection, access to justice and improvement of the legal profession. Thank you for reading and thank you for allowing us the privilege of serving.

Kevin E. Martingayle, President

Edward L. Weiner, President-elect & Chair, Midyear Legal Seminar Committee

New Explanation Based on Speculation, Not Evidence

Reliance on the travel advisory does not support the cancellation.  The advisory focuses mostly on threats of violence from Palestinians, but as indicated above, the Virginia State Bar concluded that it was safe to travel.  There is a single paragraph in the lengthy advisory on border entry difficulties:

Some U.S. citizens holding Israeli nationality, possessing a Palestinian identity card, or who are of Arab or Muslim origin have experienced significant difficulties in entering or exiting Israel or the West Bank. U.S. citizens planning to travel to Israel, the West Bank, or Gaza should consult the detailed information concerning entry and exit difficulties in the Country Specific Information….

The referenced country specific guide provides no further detail.

[added] According to the new Virginia State Bar explanation (above), on March 25, just two days before the cancellation email, the Virginia State Bar wrote to members encouraging them to sign up for the Seminar.  What changed in those two days from March 25 to March 27? The State Department travel advisory was issued in February, so that was not new.

So how would this affect the Virginia State Bar? How many people are questioned more intensively? How many are barred? In how many cases did Israel have legitimate security concerns such that more extensive questioning was reasonable?

How many of those complaints were real, and how many were used to create a pretext for the Israel boycott movement? Are those rates higher than for people entering the U.S.?

Are Israeli practices any worse than those employed by the U.S. at borders and other points of entry? This CAIR advisory in December 2014 complains that the U.S. uses the same profiling techniques allegedly used by Israel:

The Council on American-Islamic Relations (CAIR) today expressed concerns about the fact that the newly-released U.S. Department of Justice (DOJ) revision of its “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies” retains “Muslim” carve-outs on profiling by government agencies at airports and borders.

While it is reported that the new guidelines extend the existing ban on federal law enforcement profiling on the basis of religion, national origin, gender, sexual orientation, and gender identity, it retains exemptions for Department of Homeland Security agents’ use of religion, national origin and other characteristics to profile at airports and the border and allow the FBI to “map” minority communities to place informants.

Have people attending other bar association trips to Israel been barred?

How is it that so many groups and so many millions of tourists visit Israel, yet the Virginia State Bar almost alone has decided that a de facto boycott is in order?

Prof. David Bernstein, who brought attention to the Virginia State Bar’s actions, points out that

The American Bar Association has recently held meetings in Israel, for example here and here [update: along with hundreds of international conferences that are held in Israel every year, including, for example, a conference on Arabic literature with Muslim attendees from abroad.]

Israel in fact strongly encourages tourism from Muslim countries, as David Bernstein points out at The Washington Post, so much so that Hamas is warning against Muslim tourism to Israel:

The Hamas government in Gaza attacked an Israeli bid to encourage tourism to Jerusalem from Islamic countries, calling it a “dangerous Zionist plot.

This is a government agency that licenses lawyers, but seems to be acting in a very unlawyerly way, ruling based on speculation and hearsay instead of evidence.

Decision Process Still Cloaked In Secrecy

Who complained to the Virginia State Bar?

That is important, because targeting conferences in Israel for cancellation is a key strategy of the worldwide anti-Israel Boycott, Divestment and Sanctions movement. There was a concerted effort, including disruptive protests in the middle of a Holocaust memorial event, to convince the NY City Council to cancel a trip to Israel. The effort was rejected and the council members went on the trip.

Did the Virginia State Bar consider that it was being set up as a pawn in a bigger war on Israel, and that the complaints might not be genuine but contrived?

It is not surprising that the leading anti-Zionist Mondoweiss website is touting the Virginia State Bar cancellation as a “tipping point” in the BDS movement. That’s overstatement, but it demonstrates how the Virginia State Bar move is playing out in the propaganda war on Israel — perhaps just as intended by those who complained.

There is little doubt that if allowed to stand, the Virginia State Bar decision will be shopped around by anti-Israel groups to other bar associations and academic and cultural groups demanding they too cancel trips to Israel. After all, the argument will go, if an agency of the Commonwealth of Virginia cancelled its seminar, why should you go?

The process matters as well.

What process did the Virginia State Bar use to reach this conclusion? Were alternative views solicited from Bar members or others?

Public Pushback Starting

The bigger question is will the Virginia State Bar get away with what amounts to a sneak attack on Israel and its relations with the Commonwealth of Virginia? Will the Friday night document dump work?

It’s too early to tell, but already there is some movement over the weekend against what amounts to a boycott of Israel. William J. Howell, Speaker of the Virginia House of Delegates, sent a letter on Sunday, March 29, 2015, seeking reconsideration of the decision:

Dear Mr. Martingayle:

I was surprised to receive your e-mail Saturday regarding the cancellation of the State Bar’s upcoming trip to Israel for the Midyear Legal Seminar. I write to you both as a member of the Virginia House of Delegates and the Virginia State Bar to express my deep disappointment in this decision and strongly urge you to reconsider.

The Commonwealth of Virginia has a strong and longstanding relationship with the State of Israel and its people that has been formalized as the policy of the Commonwealth on several different occasions. In 1986 Governor Gerald Baliles created the Virginia Israel Commission. In 1996 the General Assembly created the Virginia Israel Advisory Board to further the economic and cultural links between the Commonwealth and Israel. In 2008 Governor Tim Kaine signed a memoranda of understanding with Israel. Most recently, the General Assembly adopted a resolution in support of Israel, renewing the Commonwealth’s longstanding commitment to our ally.

We also share deep cultural and economic ties with Israel. There are over 95,000 Jewish people living in the Commonwealth. Virginia sent over $75 million in exports to Israel in 2014. The Virginia Israel Advisory Board works tirelessly to further these ties.

The State Bar’s decision to cancel this upcoming trip is inconsistent with the policy of the Commonwealth and sends the wrong signal about our relationship with Israel. I feel that it is very important that every agency of the Commonwealth take steps to demonstrate our commitment to Israel and its people. This decision does the opposite.

I strongly urge the Bar to reconsider this decision.

Sincerely,

William J. Howell

Virginia State Bar Letter William Howell

Will the Virginia State Bar Get Away With It?

It’s just Sunday night now. Tomorrow will bring a new round of “breaking” news headlines — the Iran nuke deal, war in Yemen, and so on.

Will the Virginia State Bar get away with what it has done?

We’ll see.