Trump official wants students prosecuted for Israel protests

The Trump administration’s top civil rights enforcer at the US Department of Education wanted students who did nothing but hold a noisy protest in support of Palestinian rights to be criminally prosecuted.

Kenneth Marcus was captured on camera during a September 2016 meeting with an undercover reporter working on Al Jazeera’s explosive documentary about the US Israel lobby.

The documentary has never been broadcast due to censorship by Qatar, which funds Al Jazeera, following pressure from pro-Israel organizations.

The above video obtained by The Electronic Intifada is the latest excerpt to leak from the documentary. It shows Marcus speaking to the undercover reporter.

At the time, Marcus was director of the Louis D. Brandeis Center for Human Rights Under Law, an Israel lobby group unaffiliated with Brandeis University. The Brandeis Center specializes in lawfare – the use of legal proceedings to harass and silence Israel’s critics.

In that role, Marcus spearheaded the Israel lobby strategy of filing complaints to the Department of Education under Title VI of the 1964 Civil Rights Act, claiming that universities fail to protect Jewish students by not cracking down on Palestine solidarity activism.

In June, Marcus was confirmed as the director of the Office for Civil Rights at the US Department of Education. This means he is now in charge of investigating alleged violations of the civil rights law.

He has quickly fulfilled the worst fears of civil liberties defenders by reopening a bogus complaint against Rutgers University made by the Zionist Organization of America.

That complaint was thrown out by the Office for Civil Rights in 2014 for lack of evidence.

Marcus also informed the ZOA by letter that he has decided to enforce an official definition of anti-Semitism that conflates criticism of Israel and Zionism with anti-Jewish bigotry.

The move, made without public discussion or congressional notice, could have a profoundly chilling effect on academic freedom and free speech.

Demonizing campus activists

In the leaked video that can be watched at the top of this page, Marcus explains his lobby group’s strategy, which he is now using his government position to implement.

“Right now, the challenge is that there are people who say, ‘you know what, anti-Israel politics have nothing to do with anti-Semitism,’” Marcus states. “What you gotta show that they’re not the same, but they’re not entirely different either.”

“The goal is to have the federal government establish a definition of anti-Semitism that is parallel to the State Department definition,” Marcus adds.

The full documentary shows how Marcus’ organization aims to demonize campus groups like Students for Justice in Palestine (SJP) that support BDS – boycott, divestment and sanctions – to hold Israel accountable.

“You have to show that they are racist hate groups, and that they are using intimidation to get funded, and to consistently portray them that way,” Marcus states.

The so-called State Department definition of anti-Semitism was originally adopted in 2010 and updated in early 2018.

It is substantially the same as the IHRA definition of anti-Semitism that Israel lobby groups pressured the UK’s Labour Party to adopt as part of their campaign to oust leader Jeremy Corbyn and curtail expressions of support for Palestinian rights.

The definition has been widely opposed for conflating criticism of Israel and Zionism, Israel’s state ideology, with anti-Jewish bigotry.

Even the definition’s lead author, former American Jewish Committee executive Kenneth Stern, strongly opposes efforts to enshrine the definition in legislation or university rule books, or to use it for enforcement, arguing that this would unconstitutionally infringe on free speech.

Criminal prosecution

Not all the footage of Marcus obtained by Al Jazeera’s undercover reporter has been included in the censored documentary.

A transcript of the full meeting seen by The Electronic Intifada shows that Marcus also spoke about a May 2016 protest at the University of California, Irvine.

The UC Irvine protest sparked accusations that students from groups including Students for Justice in Palestine had harassed, threatened and intimidated attendees at a campus film screening and discussion featuring a panel of Israeli soldiers.

The screening was co-sponsored by Students Supporting Israel, a chapter of a campus organization funded by anti-Palestinian financier Adam Milstein.

Earlier leaked footage from the censored Al Jazeera documentary published by The Electronic Intifada names Milstein as the secret funder of Canary Mission, the anonymous website that smears and harasses student activists, especially from Students for Justice in Palestine.

But after a three-month investigation, UC Irvine issued a 58-page report concluding that the most troubling allegations against the Palestine solidarity activists were untrue.

False accusations

Pro-Israel groups had claimed falsely that the protesters had blocked the exits to the screening room and denied people entry.

The investigation found that the doors were held shut from the inside, keeping out Students for Justice in Palestine members and at least one pro-Israel student.

As The Electronic Intifada reported at the time, the university investigation refuted claims made by Students Supporting Israel, the Orange County Hillel chapter, the Zionist Organization of America and Marcus’ Brandeis Center which tried to paint the protesters as threats to Jewish students on campus.

One of the most serious allegations Marcus repeats in the Al Jazeera transcript is that “a Jewish pro-Israel student was chased across campus when they saw that she was one of the pro-Israel students, and had to hide in a kitchen until security could come.”

But this lurid claim was also refuted by the university’s investigation. By her own account, that student had been denied access to the screening room because the door was being held shut from inside.

The students who allegedly “chased” her were simply trying to find another way into the screening room, the investigation concluded. In their effort to do so they entered an adjacent room several minutes after the pro-Israel student did and “were not chasing” her, the report states.

The only charge that the university substantiated was that the student protest had “more likely than not” generated so much noise as to disrupt the viewing of the film, a documentary about Israeli soldiers.

Making noise is inherent to speech and protest. But administrators found the protesters in violation of one policy on student conduct: “Obstruction or disruption of teaching, research, administration, disciplinary procedures, or other university activities.”

As a sanction, the university gave Students for Justice in Palestine a warning and an assignment to host an educational event.

Marcus told the undercover reporter that this sanction was “not enough.”

“I’d like to see the students prosecuted, but the DA [district attorney] has not been amenable,” Marcus said.

“But we’ll keep pushing them so that if we don’t get these students prosecuted this time, we’ll get the DA at least sensitized to the issue and [they] should know that there will be pressure on them next time.”

During the investigation, the Brandeis Center, the Zionist Organization of America and other pro-Israel groups wrote to UC Irvine administrators to find the protesters in violation of codes of conduct and to urge them to refer the incident to the Orange County District Attorney’s office for criminal prosecution.

The Zionist Organization of America cited as precedent the 2011 convictions of the Irvine 11 students for protesting a speech by Michael Oren when he was Israel’s ambassador in the United States. While the students could have faced prison time for disruption of a public meeting, they were sentenced to community service.

But as noted, Marcus spoke to Al Jazeera’s undercover reporter in September 2016 – more than a month after the UC Irvine investigation debunked the serious accusations against Students for Justice in Palestine members over the film screening protest.

Yet Marcus continued to advance false accusations and insist that students who did nothing more than hold a campus protest in support of Palestinian rights should face the full weight of the American criminal legal system.

Students across the United States now face the perverse and dangerous situation where the most senior federal official entrusted with protecting their civil rights may use his position – in the interests of a foreign state – to press for their criminal prosecution merely for exercising their First Amendment rights.

Asa Winstanley contributed research.