A federal judge takes apart Nicholas Kristof’s controversial accusations against Israel

If you’re getting weary of the endless but necessary attacks on Nicholas Kristof for his misleading and almost antisemitic column about Israel’s “policy” of sexually assaulting Palestinian prisoners, Roy K. Altman has written in the Free Press the definitive critique of Kristof’s column—that is, until investigations by Israel reveal more information.

Wikipedia identifies Altman as “a Venezuelan-American lawyer and jurist who serves as a United States district judge for the United States District Court for the Southern District of Florida” and also identifies him as Jewish.

You can read Altman’s column by clicking below—if you subscribe to the Free Press.

The “miscarriage of journalism” is, overall, the promulgation of “fake news” by Kristof: accusations that are improperly vetted (if at all), which come from questionable sources, and which are contradicted by existing Israeli policy and behavior. Altman’s thesis is that this kind of journalism subverts the “marketplace of opinions” that, it’s been said, is necessary for the American public to judge what is true. Excerpts from Altman and others are indented; prose that is flush left is mine:

. . . we entrust our fellow Americans with the power to make these choices because we believe that a virtuous people will be equipped to make the right choices—principally because we assume that our citizens will be prepared to discern truth from fiction. And we feel comfortable in that assumption because we’ve devised a system of laws—based on evidence, burdens of proof, and a time-tested set of rules—to help us assess the veracity of contested claims. In this way, the jury system isn’t simply a means of ensuring fair trials. Rather, it’s a way of training free citizens to make difficult decisions for themselves.

Today, this whole system is being undermined by the proliferation of false information—especially on the internet. But it’s one thing to have our geopolitical and ideological enemies—whether China, Russia, or the Muslim Brotherhood—pushing unverified claims about our closest allies into our cell phones. It’s another thing entirely for The New York Times, a supposed “paper of record,” and one of its Pulitzer Prize–winning journalists to offer a story that—in its disregard of basic evidence-gathering norms, its unwillingness to investigate the opposing side’s position, and its inversion of common sense—violates the fundamental rules of fairness and due process that have, for centuries, served as the bulwark of our democracy.

In his explosive essay, Kristof accused Israel of using sexual violence against detained Palestinian prisoners as a kind of “standard operating procedure.” Kristof’s claim is thus not merely that a few rogue Israeli prison guards sometimes behave illegally—as happens in all Western democracies, including our own. It is, instead, that the Israeli government has implemented a systemic policy of deploying sexual violence against Palestinian prisoners on a massive scale.

Altman also faults the timing of the column, which came out the evening before the Civil Commission’s issued its 298-page report on sexual violence against Israelis on October 7, 2023. The Israeli Foreign Ministry says that the Commission offered this report to the paper but the paper wasn’t interested.  The paper denies this, so for the time being we have a “he said/she said” situation. Regardless, Altman avers that the “psychological doctrine of primacy” argues that “a fact finder is often most persuaded by the story he hears first”, implying that Kristof, regardless of the deficiencies of his piece, should at least have held off publishing it until the Civil Commission’s report came out.  We won’t go further into this issue, as Altman finds three major faults with the column:

On the merits, Kristof’s article violates three central precepts of our legal system: It disregards basic rules of evidence gathering; it refuses to investigate the opposing side’s views; and it ignores logic and common sense.

Within this list of three there are buried two other sub-lists, which makes the piece a bit confusing. But Altman’s claims and his accusations of Kristof are pretty clear.  I’ll number the main claims as 1, 2, and 3, with sub-lists given letters as well as numbers.

1.) The column is unfair by making uncheckable claims.  

Let’s start with fairness. One of the fundamental rules of our justice system is that a man should be permitted to confront his accuser. Whether in civil or criminal cases, we have for hundreds of years rejected the English Star Chamber’s technique of allowing anonymous witnesses to advance salacious claims in secret. This principle is so essential to any basic system of fairness that it appears repeatedly throughout our laws—from the Sixth Amendment’s Confrontation Clause and its guarantee of public trials to our hearsay rules, which preclude out-of-court statements the accused never had an opportunity to cross-examine. But Kristof’s article relies mostly on anonymous sources whose credibility—much less their political or ideological affiliations—cannot be tested and thus cannot be known.

Here we have four sub-points that expand on this claim:

Kristof justifies his reliance on anonymity by suggesting that his sources would face retribution, either from Israeli authorities or from their own communities, if they came forward. But there are at least four major problems with this excuse.

1a. There is no evidence of retribution against prisoners who claimed to be sexually assaulted, and some claims changed over time:

Kristof provides no evidence of any similar retribution against one of the men he spoke with who has publicly accused Israeli guards of sexual assault. For months now, Sami al-Sai has repeatedly and publicly claimed, including to major news outlets like NPR and the Times, that he was sexually assaulted while in Israeli detention. There are real problems with al-Sai’s claims. For one thing, soon after his detention, he filed a petition with the Israeli Supreme Court, arguing that he was wrongly detained and asking for his immediate release. In that petition, he complained about the quality of the food he was given and said that he was treated badly,but he notably never mentioned any of the sex allegations he’s now advancing.

. . . But the point here is that, far from suffering any retribution for complaining about his detention, al-Sai was later freed, and Kristof never suggests that he’s since been subject to any form of punishment.

1b. Israel has in place an often-used system for registering and adjudicating prisoner’s complains about mistreatment

Two,any cursory review of Israeli legal databases would reveal that Israeli prisons allow Palestinian prisoners to file complaints about the conditions of their confinement—and that these complaints do get filed. Indeed, since 2023, Israel has received 182 such complaints filed by Israel Prison Service detainees from the Gaza Strip. . . But the point is that Kristof offers not a single shred of evidence that any of the Palestinian prisoners who filed complaints has ever been subjected to retribution—much less that this speculation about retribution has ever been a feature of the Israeli prison system.

1c. Kristof’s insistence on anonymity makes his allegations uncheckable. 

Kristof’s reliance on anonymity ensures that no one—most especially the Israelis—can ever prove him wrong. That’s because he not only tells us very little about the accusers, he tells us nothing about the offenses. No locations. No dates. No perpetrators. Israeli prisons, like many of our own, are often videotaped, and those recordings are reviewed not just by prison guards but by prison officials and lawyers. If Kristof had conducted anything resembling a fair analysis, we would have expected him to have asked to review some of this footage. But there’s no indication that he ever did. Nor can anyone else do so now because Kristof gave us no details to check against his claims.

1d. The accused has a right to the details of accusations, which gives them a chance to defend themselves. “The accused” here include onot just IDF soldiers and prison officials, but Israel itself, which is threatening to sue the paper.

Four, we should acknowledge that it’s always hard for victims of sexual assault to advance their claims publicly. But any system committed to basic fairness recognizes that the accuser’s preference for anonymity must bend to the accused’s right to confront the claims against him. And that’s not just because we want to allow the accused to test the reliability of the accuser’s claims. It’s also because we presume that the mere act of declaring something publicly itself evinces some degree of credibility.

Kristof fails to mention, for example, that Euro-Med, one of his principal sources, is  an organization with known ties to Hamas and has made false claims about Israel before, including the blood libel that Israel harvests organs of prisoners.

On to the second major point:

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2.) Kristof failed to investigate “the opposing side’s position”, including systemic aspects of Israeli law that would make widespread abuse improbable.  Again Altman breaks this down into a sublist of three items:

2a. Kristof doesn’t mention Israeli laws prohibiting sexual abuse of prisoners. 

First, in advancing his claim that Israel permits or encourages sexual abuse of detainees as a matter of state policy, Kristof fails even to mention that sexual offenses are strictly prohibited under Israel’s penal code. Indeed, the Israeli legal system imposes enhanced penalties when sexual offenses, including by security personnel, are motivated by race, skin color, or national origin. And Israeli military forces are bound by a host of additional directives, which further protect prisoners from state-sponsored violence, including sexual violence.

Altman implies that Kristof was trying to hide this fact.  Well, yes, probably, but shouldn’t we know that this conduct is against the law? What’s worse is that Kristof also fails to mention that similar Palestinian prisoners’ allegations of abuse have led to serious prison sentences for over a dozen Israeli abusers.

2b. Kristof fails to mention that there’s a special unit of Israeli police designed to investigate claims of prison misconduct. 

Kristof likewise fails to disclose that there’s an elite unit in Israel’s police force, called Lahav 433, tasked with investigating misconduct by the Israeli Prison Service. Now, it’s entirely possible that Israel created this unit inside what’s known as the “Israeli FBI” and filled it with elite servicemembers who do nothing but sit in an office all day, twiddling their thumbs and happily allowing misconduct to go unchecked. The far more plausible inference, I submit, is that Israel didn’t create this elite investigative unit simply to do nothing. But the point is that we don’t know—and cannot know—the answers to any of these questions from Kristof’s “opinion” piece because he never bothered to mention this unit, never thought to interview its members, and never investigated the extent to which it actually enforces Israeli law.

Well, the existence of such a unit doesn’t prove that there wasn’t misconduct, but it does show that there were quite a few deterrents to misconduct.

2c.  A quote from a former Prime Minister of Israel was presented, but a later clarification of that quote by the PM was ignored. Perhaps worse than the two omissions above is Kristof’s shoddy (indeed, slimy) treatment of a comment by a former Israeli Prime Minister. Here’s what Kristof said.

“Do I believe it happens?” he asked. “Definitely.”

“There are war crimes committed every day in the territories,” he added.

Of all people to ask! Olmert had been convicted of corruption and bribery as Israel’s finance minister and served 16 months of a 27-month prison sentence. Kristof doesn’t mention this, and Kristof might have added, post facto, this clarification by Olmert:

Olmert clarified, in a statement to The New York Times and obtained by The Free Press, that “Mr. Kristof’s article includes claims of extraordinary gravity: that Israeli authorities have directed the rape of children, that dogs have been used as instruments of sexual assault, that systematic sexual torture is state policy. I did not validate these claims.”

Surely this should have been an addendum to Kristof’s piece. It wasn’t, The NYT hasn’t responded directly to this clarification save to say that Olmert’s statement was tape-recorded and presented accurately “in context”. But when when Olmert later denied that he was not validating claims of sexual abuse, that was no deemed worthy of a mention or correction by the NYT.

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3.) The “dog rape” claims is pure blood libel, in line with previous anti-Israel claims. (And there’s no evidence for it. Indeed, many have deemed the “trained dog rape scenario” to be impossible (I’m not ruling it out with complete certainty, and it will surely need investigating. But I do find it stupid.)

Which brings us to Kristof’s final departure from our fundamental precepts: his lack of common sense. The most salacious claim in Kristof’s piece is the allegation that Israel is now systematically training dogs to rape Arab Muslim men. This claim used to live only on the fringes of the wildest internet conspiracy theories. In 2010, there was a spate of shark attacks in the Red Sea, situated between Israel and Egypt. For whatever reason, most (if not all) of these attacks occurred on the Egyptian side of the border. I happened to be in Israel that summer and heard an Egyptian minister wondering whether the Mossad, Israel’s foreign intelligence service, was systematically training sharks to eat only Arab flesh. My father and I, hearing this over the radio in a cab, laughed at the absurdity of the claim.

What we’ve seen over the last few years is that wild and illogical conspiracy theories that used to reside only on the internet and in the anti-Israel Arab street now circulate in the mainstream media, brought there by irresponsible journalists who flout evidentiary standards, ignore basic notions of fairness, and disregard common sense and the truth. What kind of a society will we be if we don’t reverse this disturbing erosion in our ability to tell truth from falsehood?

Altman’s claims add up to a serious indictment of Kristof’s column, which, though presented as an op-ed piece, could easily have run as a news piece, but the paper was apparently too lazy to check its claims. To me, the most serious accusations are twofold: the failure of Kristof to document the accusations so they could be checked, even making the complainers anonymous; and also Kristof’s failure to mention the anti-Israel jostpru of some of the individuals and organizations (especially Euro-Med) making the claims.  It is a one-sided column, even for Kristof, who in the past hasn’t done due diligence in checking claims.

The more I think about this, the more I think Kristof should be fired, as the op-ed is a serious lapse in standards, even for an op-ed. If op-ed editor James Bennet could be fired (as he was) for allowing Senator Tom Cotton to write an op-ed arguing that the military might be used to quell post-George Floyd riots, surely Kristof should also be forced to resign. After all, Cotton was just giving an opinion that didn’t rest on facts, while Kristof made many allegations that he didn’t bother to either qualify or investigate.

But of course Kristof is a golden boy for the NYT, and the his column buttresses the NYT’s well known stance against Israel. The NYT is standing behind his column (it has no public editor), and don’t expect it to fact-check his claims. That will be up to Israel.