Lawfare Project Addresses Controversy Over Virginia State Bar’s Misguided Cancellation of Israel Trip

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Virginia State Bar
1111 East Main Street
Suite 700
Richmond, VA 23219

April 2, 2015

Dear VSB Members, Bar Council, and Executive Committee,

The Lawfare Project is disturbed and disappointed over the uninformed, discriminatory actions of the Virginia State Bar with regard to the cancellation of its Midyear Legal Seminar in Jerusalem, Israel. We urge VSB President Kevin Martingayle to reinstate the trip, publicly apologize, and take a public stance in staunch opposition to the illegal and illegitimate BDS Movement.

As attorneys and sworn members of the Bar, we are held to the highest ethical and moral standards, and we must be vigilant in considering this responsibility in every personal and professional context. As the President of the Virginia State Bar, representing all of Virginia’s esteemed attorneys, Mr. Martingayle should be especially cognizant of his obligation to remain impartial, transparent, and well-informed on all issues relating to the Bar and its members.

In capitulating to the calls by nefarious groups to boycott Israel – a staunch United States ally for whom the Commonwealth of Virginia has recently and publicly declared its continued support – the VSB made a foreign policy judgment that contravened the policies of the state it represents and the federal laws to which its members have pledged allegiance. The BDS Movement already considers the VSB’s actions to be a decisive victory: Mr. Martingayle has effectively put the official stamp of the Commonwealth of Virginia on this vengeful and bigoted derivative of the Arab League.

The decision to cancel the trip was made without adequate research or inquiry, based on false and misleading information, and without the participation or consultation of the Virginia State Bar Council or the Bar’s 50,000 members. Mr. Martingayle made the decision in a decidedly non-public forum, without transparency of any kind, and without the solicitation of an expert opinion or even a conflicting one. Mr. Martingayle’s decision-making process therefore amounted to a denial of the rights of the VSB’s members to participate in the discussion.

The cancellation was apparently based in whole or in large part on a petition with a whopping 34 signatures that “demand[ed] that the location of [the]…Seminar be changed.” The petition’s authors accused Israel of “active discriminat[ion] on the basis of racial, religious, and national origin grounds” and said that Israel would “prevent Arab, Muslim and Palestinian members of the VSB from attending.”

Mr. Martingayle’s letter informing Bar members of the cancellation explained that the location would be changed due to the “unacceptable discriminatory policies and practices pertaining to border security that affect travelers to the nation.” The letter expressly stated that “certain members of the VSB and other individuals have expressed objections” to the Seminar’s location and declared that the VSB was “pleased that [its] members and citizens feel able to express concerns and look to [the VSB] to protect rights.” Obviously, Mr. Martingayle believed that he was taking a stand in opposition to Israeli human rights policies by cancelling the trip. Neither the continued denials by Mr. Martingayle and Mr. Weiner of this unambiguous intention, nor their insistence that the cancellation was not based on anti-Israel or anti-Semitic objectives, have convinced anyone to disregard the plain meaning of the words in Mr. Martingayle’s initial letter.

Mr. Martingayle has also alluded to communications between the VSB and the Israeli Embassy in which the Embassy allegedly confirmed that it may deny entrance to some members of the VSB. While the substance of these communications remains illusory, what is clear is that Israel, as a sovereign nation surrounded by hostile enemies, has security protocols in place to protect its people and its territory from attack. Any diplomatic mission representing any country in the world would make the exact same representation: that it could not absolutely guarantee that all 50,000 of the VSB’s members would pass its security checks before the checks were performed. This objectively neutral response by the Israeli Embassy could not possibly lead anyone to question Israeli entrance policies, which, by the way, mirror American entrance policies, and the spin that leaked into these communications indicates only that Mr. Martingayle was trying to cover his tracks after being blindsided by the reactions and consequences of his unilateral determination. In this case, the cover-up is as offensive as the underlying “crime.”

If the VSB or President Martingayle had done adequate research or made any genuine attempt to understand the context of the petition or the BDS Movement which clearly influenced the petition’s drafting, he would have concluded that BDS exists as the nonviolent arm of the Islamist movement to not only delegitimize Israel, but to undermine our liberal democratic values of freedom of speech and association and to systematically pervert our secular legal system. Ironically, the first democratic institution the Islamists would dismantle would be our system of justice – precisely the system that Mr. Martingayle represents.

The BDS Movement was started by the Arab League in 1945, prior to the creation of the State of Israel, as a three-tiered declaration of economic warfare against the Jews. The Arab League Council declared in 1945 that its participating states should “oppose Jewish industry by all possible means” and that the boycott “should not be confined to governmental action only, but should also be [undertaken] through the people.” After Israel’s establishment in 1948, the boycott was expanded to include a total ban on all commercial and financial transactions with Israel. The League mandated a primary boycott against Israeli products; a secondary boycott against any entity worldwide that does business with Israel directly or indirectly; and a tertiary boycott prohibiting any Arab League state from doing business with any company that deals with companies that have been “blacklisted” by the Arab League – including “companies that the Arab League identifies as having ‘Zionist sympathizers’ in executive positions or on the board of the company.”

The goals of BDS remain the same as they were in 1945: to delegitimize Israel, marginalize Jews and Israelis, and bankrupt the Jewish state. The actions of the BDS Movement and its proponents are likely in violation of several American laws including the Patriot Act’s material support laws, the Export Administration Act, the Sherman Anti-Trust Act, and the Racketeer Influenced and Corrupt Organizations Act. Further, the goals of BDS severely contravene the fundamental American public policy of support for Israel and its continued existence and security.

BDS proponents act contrary to the public policies of Virginia and the United States; regularly engage in lawfare to silence speech exposing the BDS Movement’s ties to terrorism; and have been connected to litigation in the context of material support for terrorism. The VSB has therefore been manipulated by terrorist-supporters who exploited President Martingayle’s ignorance on a complex foreign policy issue and inspired him to adopt the BDS message through the Virginia State Bar.

We are disturbed when anyone, of any ethnic origin, religion, or professional affiliation, is swayed by the misleading and offensive arguments advanced by proponents of BDS. But for the President of a state Bar to fall so desperately under calls to delegitimize Israel, the only country in the Middle East committed to our principles of democracy and justice, and for him to pursue the ends of the BDS campaign through the legal arm of the Virginia state government, is simply outrageous. Mr. Martingayle likely did not intend to generate such an uproar; however, in taking decisive action without debate or transparency, without a more complex understanding of the issues at play, he should have expected exactly this result.

We applaud the Virginia attorneys who have spoken out against the actions of Mr. Martingayle and the VSB and encourage them to compel a change in the leadership of the organization. Mr. Martingayle’s credentials as VSB President must be seriously questioned.

William J. Howell, Speaker of the Virginia House of Delegates, sent a letter on Sunday, March 29th to Mr. Martingayle criticizing the decision to cancel the trip and reiterating the strong commitment of the Commonwealth of Virginia to Israel as a friend and ally as well as a cultural and economic partner. He wrote that the VSB’s decision was “inconsistent with the policy of the Commonwealth and sends the wrong signal about our relationship with Israel.” He also said he “[felt] 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.” He then “strongly urge[d] the Bar to reconsider this decision.”

We agree. Much damage has already been done, and the only way to adequately recompense is to reinstate the Seminar and give the Bar’s members the opportunity to take the trip that has already been planned and that, seemingly, all but 34 – 49,966 members – believe to be an exciting and perfectly appropriate destination for the VSB. Having presumably become better informed over the past several days, we sincerely hope Mr. Martingayle will take the necessary steps so that we can all put this very alarming incident behind us.

With regards,

Brooke Goldstein Benjamin Ryberg Amanda Berman Michael Schwartz
Attorney at Law Attorney at Law Attorney at Law Attorney at Law
Director Director of Research Director of Legal Affairs Chairman of the Board