Jacob Goldberg
Mondoweiss / October 3, 2024
According to a letter obtained by Mondoweiss, the American Bar Association urged congressional leaders to pass a bill that would require the adoption of the IHRA antisemitism definition less than two years after the ABA refused to adopt it itself.
The American Bar Association (ABA) urged congressional leaders earlier this month to pass a bill that would require dozens of federal agencies to adopt the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, according to a letter signed by ABA President William Bay and obtained by Mondoweiss.
The move comes less than two years after the ABA, which describes itself as the world’s largest voluntary professional association in the world, decided not to adopt the definition in its own internal resolution on antisemitism.
In January 2023, more than 40 organizations, including the ACLU and the Center for Constitutional Rights, objected to the ABA’s potential use of the definition, saying in a letter that “the clear objective behind the promotion of the IHRA definition is the suppression of non-violent protest, activism, and criticism of Israel and/or Zionism – a fact that is so well-documented as to be beyond reasonable dispute”.
The resolution passed by the ABA’s House of Delegates the following month urged federal, state, and local governments to support legislation to combat antisemitism, without mentioning the IHRA definition.
But with President Bay’s recent support for the Countering Antisemitism Act, those organizations’ concerns have resurfaced. It is the latest in a years-long battle to protect criticism of Israel from legislation on antisemitism.
“The ABA went through a rigorous process in contemplating whether or not to endorse the controversial IHRA definition, and rightly chose not to do so,” Hadar Susskind, President and CEO of Americans for Peace Now, told Mondoweiss.
“For President Bay to come out and endorse legislation that includes the IHRA definition, and to do so without noting that key fact, is a mistake,” Susskind said.
A former ABA member, who spoke to Mondoweiss on condition of anonymity to avoid professional repercussions, said: “I was disappointed in President Bay’s decision to support [the Countering Antisemitism Act], which includes a definition of antisemitism that ABA itself rejected.”
“Equating critique of a foreign country with antisemitism rolls back rights for all Americans,” the former member said. “It’s an attack on free speech and undermines our right to peacefully protest.”
In response to questions from Mondoweiss citing concerns about Bay’s letter, ABA Chief Communications Officer and Associate Executive Director Jim Walsh said ABA’s advocacy communications are based on policies adopted by its House of Delegates. Its policy on antisemitism, he said, is “not intended to diminish or infringe upon any right protected by the First Amendment to the United States constitution”.
Criminalizing criticism of Israel
In his September 16 letter, addressed to Senate Majority Leader Chuck Schumer and House Speaker Mike Johnson, Bay said the ABA “urges Congress to support legislation that combats and condemns antisemitism, including the bicameral and bipartisan Countering Antisemitism Act”.
The letter cites a 2023 report by the American Jewish Committee in which 63% of American Jews reported feeling less secure than in the previous year, as well as statistics collected by the Anti-Defamation League (ADL) indicating a spike in antisemitic incidents following October 7 last year.
Analysis published by Jewish Currents in June found that at least 17% of the incidents documented by the ADL appear antisemitic only when assessed using the IHRA definition, but not when using the Jerusalem Declaration on Antisemitism (JDA) definition, which was developed to avoid conflating anti-Zionism with antisemitism.
Bay’s letter goes on to describe the provisions of the Countering Antisemitism Act, which include requiring federal agencies to report to Congress on their implementation of President Joe Biden’s National Strategy to Counter Antisemitism, and requiring the Federal Bureau of Investigation, Department of Homeland Security, and National Counterterrorism Center to annually assess the threat of antisemitic violent extremism.
It adds that the bill has bipartisan support in both chambers of Congress and has been endorsed by a broad coalition of Jewish organizations.
While Bay’s letter does not mention the IHRA definition, the text of the bill does, saying it “should be utilized by Federal, State, and local agencies.”
Walter H. White, Jr., a lawyer who has held multiple ABA leadership positions and serves on the board of Lawyers Defending American Democracy, said he opposed the ABA’s use of the IHRA definition last year because he believes “no organization of lawyers should waive the right to criticize any government in the event that it deviates from international law.”
“While one may argue as to whether the Israeli government has violated international law, in my opinion the freedom to engage in the discussion is paramount,” he said.
But he pointed out that Bay’s letter was worded carefully to say the “ABA’s policy on antisemitism supports most of the key provisions” of the Countering Antisemitism Act, not all.
“If you were to ask the ABA if it had a position on IHRA, I think the answer would be no, it has not taken a position on IHRA, hasn’t endorsed it, and certainly hasn’t opposed it – but it has taken a position opposing antisemitism,” he told Mondoweiss.
“I do think that the President of the ABA felt it was important to take a position opposing antisemitism in this current environment,” he added.
“Would I have done it this way? No, I don’t expect that I would have,” White said, adding that he was concerned that the law, if passed, might be abused by authorities seeking to criminalize criticism of Israel, especially under a potential Trump administration.
Other critics of the IHRA definition pointed out that weaponized accusations of antisemitism have already wrought damage.
“We do remain concerned about the codification of the IHRA definition, including via the Countering Antisemitism Act, particularly given the crackdown we have seen on pro-Palestinian peaceful protest and activism on US college campuses and elsewhere, sometimes in the name of combatting antisemitism,” Lama Fakih, Human Rights Watch’s Director of our Middle East and North Africa Division, told Mondoweiss.
Fakih added Human Rights Watch would like to see the ABA ensure that its efforts to combat antisemitism do not “inadvertently embolden policies and laws that undermine fundamental human rights”.
Maria LaHood, Deputy Legal Director at the Center for Constitutional Rights, said: “Rather than supporting a law to suppress constitutionally protected speech critical of Israel, perhaps the ABA should concern itself with the world’s largest threat to the rule of law – our own government’s complicity in Israel’s genocide, and its thwarting of every federal and international law and mechanism that require it to stop.”
Jacob Goldberg is a reporter at The New Humanitarian
