It’s a travesty because it embraces the erosion of democratic norms at an inflection point in our history. Since our founding, the American political experiment has entrusted everyday citizens with the revolutionary power to choose. We choose the men and women who represent us. We choose how to balance the intimate relationship between a free people and its government. We choose whether to send a member of our community to prison.
But 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.
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.
The timing of the essay is itself troubling. Weeks ago, the independent commission charged with investigating, and reporting on, Hamas’s widespread use of sexual violence against Israelis on October 7 informed the Times that it would be releasing its report on Hamas’s egregious sex-crimes violations on or around May 12. According to the Israeli Foreign Ministry, when the commission offered to provide the Times with its findings, the Times said it was not interested. But then, on May 11, one day before the commission’s report was set to be published, the Times ran Kristof’s piece, which flips the script by portraying the victims of mass sexual violence as the perpetrators. (The Times denies the Israeli Foreign Ministry’s version of events and insists that there is no relationship between the timing of the commission’s report and Kristof’s column.)
But we should recognize that this preemptive co-opting of the real story here—the systemic victimization of Israeli women and girls—is no innocuous question of timing. As any experienced trial advocate or jury consultant can attest, the psychological doctrine of primacy—which explains why a fact finder is often most persuaded by the story he hears first—dictates the order in which evidence is produced, and witnesses are called, in many American trials. The Times later ran a shorter story about the Israeli commission’s report, but by then, as the doctrine of primacy teaches us, it was too late.
In law as in logic, we can and should use a party’s conduct in deciding whether we believe what the party has to say—principally because that conduct may help us understand the party’s incentives, its biases. And the Times’s conduct as it relates to a story about Hamas’s sex crimes—followed in quick succession by its decision to publish an inflammatory opinion piece about supposed Israeli sex crimes—tells us a lot about the Times’s biases.
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.
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.
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.
One, 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.
The New York Times didn’t respond to a request for comment as to whether Kristof reviewed any of al-Sai’s judicial records before publication of his report. It’s safe to assume, however, that he didn’t. How Kristof could report reliably on al-Sai’s condition while in prison in the absence of any of these legal documents is a question worth pondering.
For another, the Supreme Court’s order denying his petition found credible evidence that he was affiliated with Palestinian terror groups and that he had thus been properly detained—an obvious stain on his reliability as a witness against Israel, the central target of every Palestinian terror group. (Kristof describes al-Sai merely as “a freelance journalist.”) 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.
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. Of those, 83 were filed by the prisoners’ attorneys, 85 were reported by Israeli officials themselves, and four involved allegations of sex offenses—a tiny fraction among a prison population that includes some 10,000 Palestinians. 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.
Three, 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. There’s an old adage that says it’s impossible to prove a negative—all the more so when there are no facts to investigate.
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.
The few sources Kristof does name underscore why anonymity is so problematic. Beyond al-Sai, Kristof relies heavily on a report by Euro-Med, an organization with known ties to Hamas. While Kristof says that Euro-Med is “often critical of Israel”—an almost laughable understatement—he never discloses that Euro-Med’s leader, Ramy Abdu, is affiliated with Hamas, that he has advocated publicly for “a million October 7ths,” and that he has repeatedly peddled implausible (and now discredited) claims about Israel, including the absurd allegation that Israel “harvests organs.” Kristof similarly relies on a United Nations Human Rights Council report, which is itself based on anonymous reporting and which openly dispenses with its typical corroboration requirements in favor of “a single primary source.”
Whatever one thinks of Israel or its prison system, we must ask ourselves: Why does Kristof never tell his readers any of this? Don’t we deserve to know that the NGO on which he based so much of his “opinion” has hurled false claims about Israel before, or that its director is affiliated with Hamas?
All of which brings us to the second major defect in Kristof’s piece: his failure to seriously investigate the opposing side’s position. Our adversarial system stands on a simple but profound premise: Truth is best tested through confrontation. No just system would accept, without question, the accuser’s claims and call it a day. But Kristof does exactly that. Here are three examples of this basic flaw in his reporting.
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. Again, Kristof discussed none of these laws and never attempted to assess the extent to which violations of these laws are ever punished. What was he trying to hide?
Our adversarial system stands on a simple but profound premise: Truth is best tested through confrontation.
Rather than engage with these laws, Kristof offers the unchallenged and uncorroborated view of Sari Bashi, who told him that Israel rarely punishes prison guards who violate Israeli law. Not so. Even in the aftermath of October 7, when there was understandably little sympathy for the Palestinian terrorists who had suddenly flooded Israel’s jails, the Israel Defense Forces cracked down on misconduct. Looking to incidents reported by Israeli commanders and soldiers alone, the Israeli military has instituted more than a dozen disciplinary proceedings or measures against soldiers for law violations against Palestinians, some even resulting in military discharges—a severe penalty in a society that views military service as the ticket to socioeconomic advancement. Military prosecutors have also launched three criminal investigations into alleged sexual offenses by soldiers against Palestinians, and five more are currently undergoing a preliminary examination.
Several other Israeli investigations have led to prosecutions and serious prison sentences. One Israeli soldier, for example, was convicted and sentenced to jail for physically abusing Palestinian inmates and requiring them to speak in a demeaning way. Another who inappropriately searched Palestinian women and foreign tourists was sentenced to fourteen months in prison. Two soldiers were convicted and sentenced to prison for assaulting a Palestinian detainee during a security inspection. Each of these cases eviscerates Kristof’s suggestion that Israel fails to punish soldiers or prison officials who behave illegally toward Palestinians—and they’re simply incompatible with Kristof’s thesis of state-sanctioned abuse. But the more fundamental point, again, is that Kristof curiously never tells his readers any of this.
Second, 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.
Third, rather than inquire into the practices of the men and women charged with enforcing Israel’s penal code, Kristof turned to former Israeli prime minister Ehud Olmert, who conceded he didn’t know anything about Israeli abuse of Palestinian prisoners and yet proceeded to speculate that he “was not surprised by the accounts [Kristof] had heard.” Several glaring issues here. For starters, Kristof never tells his readers that Olmert, a disgraced and embittered former politician, was convicted and imprisoned on charges of fraud and bribery. Nor does Kristof explain why it makes any sense to question Olmert about the policies of a prison system he says he knows nothing about and a government he hasn’t participated in for more than a decade. We wouldn’t trust Richard Nixon as an expert in the policies of the Bill Clinton–era Bureau of Prisons. But all this is mostly beside the point because, once the article came out, 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.”
Of course, an essay isn’t a courtroom. But when a reporter in our supposed “paper of record” advances a series of allegations that are this severe and pernicious, not solely against an individual but against an entire nation, we should demand that he produce evidence to match the gravity of his assertions. And Kristof—who has been forced in the past to admit that he’d been lied to by his sources—has fallen well short of this standard.
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.
But we aren’t laughing now. 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?
