July 30, 2024
Dear Mr. Shenker:
This letter responds to your remarks reported in The New York Times, “A Wall Street Law Firm Wants to Define Consequences of Israel Protests,” by Emily Flitter (July 9, 2024).
Speaking
as a leader of Sullivan & Cromwell, you stated all applicants for
employment would be vetted for lawful statements, actions, or beliefs
that your law firm defines as antisemitic, including mingling with
pro-Palestinian demonstrators chanting “From the river to the sea,
Palestine will be free.” Will Sullivan & Cromwell establish an Index
of Forbidden words, songs, signs, or sayings that would be off limits
to any of the firm’s employees?
We
are concerned about the absence of due process safeguards that could
destroy an applicant’s professional career in addition to Sullivan &
Cromwell’s apparent complacency with hiring lawyers who engage in hate
speech or violence against Arabs or other races. Doesn’t that
discrepancy smack of George Orwell’s Animal Farm, “All animals are equal, but some or more equal than others?” Is Sullivan & Cromwell, now in its 145th year,
seeking to make amends from its earlier history of notorious
discrimination against Jews until the 1950s, not to mention biases
against Muslims and Arabs?
There
is no articulable definition of verbal antisemitism free from
manipulation for ulterior purposes. Sullivan & Cromwell seems to
equate anti-Zionism with antisemitism. But renowned scholars of Judaism
like Allan C. Brownfeld insist that Zionism is a form of political
idolatry that elevates worship of the State above worship of the Torah
and God. Would Sullivan & Cromwell hire Mr. Brownfeld?
Will
Sullivan & Cromwell provide applicants a fair warning of what words
or acts will be treated as antisemitic? What will be Sullivan &
Cromwell’s standard of proof? Reasonable suspicion, probable cause, a
preponderance, clear and convincing, beyond a reasonable doubt, or
non-fantastic speculation? What rules of evidence will govern the
antisemitism vetting? Will hearsay be admitted? How will documents be
authenticated? Will applicants have a right to counsel to voice
objections and a right to confront their accusers? Who will do the
vetting? What selection process will be employed to exclude persons
hostile to Arabs, including Palestinians or proponents of a two-state
solution? Who will decide? An outside arbitrator? A Sullivan &
Cromwell Committee? How will impartiality be enforced? Will there be an
appeal process?
We’ve
seen this rodeo before with McCarthyism and the blacklisting of persons
accused of Communist sympathies with or without evidence. The
blacklisting of the Hollywood 10 was but the tip of the iceberg.
Sullivan
& Cromwell should applaud students for exhibiting the courage and
sense of justice required to protest Israel’s merciless,
industrial-scale killings, bombardments, and starvation of hundreds of
thousands of totally vulnerable Palestinian infants, children, women,
and men with no responsibility for October 7. Does Sullivan &
Cromwell prefer lawyers with hearts of stone who subordinate justice to
greater anticipated profits, certain demanding clients, and billable
hours?
Lawyers
should be first responders when the rule of law is under attack. What
has Sullivan & Cromwell said or done to oppose the serial violations
of American and international humanitarian law, for example, the Leahy
Amendment, the Foreign Assistance Act, the Arms Export Control Act, and
the Genocide Convention, by the unconditional provision of powerful
offensive weapons, military intelligence, and diplomatic cover for
Israel by the United States for use against civilian populations in Gaza
and the West Bank?
To
further elaborate on the impulsive folly of your declaration, read the
attached letter by 17 experienced Israeli human rights groups on
December 13, 2023, New York Times to President Biden on “The Humanitarian Catastrophe in the Gaza Strip,” and an open letter in the New York Times on
June 26, 2024, by 6 very prominent Israelis to the U.S. Congress to
disinvite P.M. Netanyahu. Would any of their applications to join your
firm Sullivan & Cromwell be rejected for protesting the mass
slaughter and starvation of the civilian population in Gaza, most of
them women and children? If so, wouldn’t your firm be accused of
antisemitism? Are they not Jews every bit as much as Prime Minister
Netanyahu?
Palestinians
in Gaza and the West Bank have suffered vastly worse oppression under
Israeli rule than the American colonists experienced under King George
III, which provoked the American Declaration of Independence. Students
should not be ostracized or penalized for protesting that unbearable
oppression since 1967 coupled with the Israeli denial of the
Palestinians’ right to self-determination as pronounced recently by the
International Court of Justice.
How
does Sullivan & Cromwell answer the recent reflections of two
surgeons in Gaza during its annihilation by the IDF with United States
weapons?
I’ve
never seen such horrific injuries, on such a massive scale, with so few
resources. Our bombs are cutting down women and children by the
thousands. Their mutilated bodies are a monument to cruelty.
– Dr. Feroze Sidhwa, trauma and critical care surgeon
Gaza was the first time I held a baby’s brains in my hand. The first of many.
– Dr. Mark Perlmutter, orthopedic and hand surgeon
(See
the open letter to President Joe Biden and the U.S. Congress titled,
“45 American Health Workers’ Letter on Their Experiences in Gaza” dated
July 25, 2024.)
And
what does Sullivan & Cromwell think about the genocidal words of
Israeli Defense Minister Yoav Gallant: "We are putting a complete siege
on Gaza... No electricity, no food, no water, no gas -- it's all closed?”
Moreover, discriminating against ethnic Arabs in the making of contracts is illegal under federal civil rights laws. St. Francis College v. Al Khazraji, 481
U.S. 604 (1987). If Sullivan & Cromwell’s vetting for antisemitism
proves a pretext for discriminating against Arab Americans, it would be
in violation of 42 U.S.C. 1981.
Even
if Sullivan & Cromwell stays within the technical boundaries of the
law, we deplore its greater affinity with Spanish Grand Inquisitor
Thomas de Torquemada than with Voltaire. Silencing, chilling,
or deterring speech that offends no civil or criminal prohibition
subtracts from our democratic dispensation and the health of civil
society.
We
suggest that Sullivan & Cromwell reconsider now before the outrage
by law schools in September reaches your reputation and that of some of
your clients. To err is human. To acknowledge error is divine.
Sincerely,
Bruce Fein, Esq.
Ralph Nader, Esq.
Lou Fisher
CC: National Law Journal
Harvard Law Record
American Bar Association
New York City Bar Association
Law School Placement Offices
Plus other interested parties
PDF VERSION
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