February 22, 2006
Praise Prof. Alan Dershowitz
By Tony Blankley
Next week a vastly important book will be published: "Preemption,
A Knife That Cuts Both Ways" by Alan Dershowitz. Yes, that
Alan Dershowitz: the very liberal civil libertarian, anti-capital
punishment Harvard Law School professor. And but for my lack of
his legal scholarship, there is nary a sentence in the book that
I -- a very conservative editor of the Washington Times,
and former press secretary to Newt Gingrich -- couldn't have written.
of his book is that in this age of terror, there is a potential
need for such devices as profiling, preventive detention, anticipatory
mass inoculation, prior restraint of dangerous speech, targeted
extrajudicial executions of terrorists and preemptive military
action including full-scale preventive war.
In his own
words, from his Introduction: "The shift from responding
to past events to preventing future harms is part of one of the
most significant but unnoticed trends in the world today. It challenges
our traditional reliance on a model of human behavior that presupposes
a rational person capable of being deterred by the threat of punishment.
The classic theory of deterrence postulates a calculating evildoer
who can evaluate the cost-benefits of proposed actions and will
act -- and forbear from acting -- on the basis of these calculations.
It also presupposes society's ability (and willingness) to withstand
the blows we seek to deter and to use the visible punishment of
those blows as threats capable of deterring future harms. These
assumptions are now being widely questioned as the threat of weapons
of mass destruction in the hands of suicide terrorists becomes
more realistic and as our ability to deter such harms by classic
rational cost-benefit threats and promises becomes less realistic."
policies conflict with traditional concepts of civil liberties,
human rights, criminal justice, national security, foreign policy
and international law He shrewdly observes that historically,
nations -- including democracies -- have resorted to such deviations
from law and custom out of necessity. But that it has all been
ad hoc, secret or deceptive. Prof. Dershowitz argues that now,
rather, we need to begin to develop an honest jurisprudence of
prevention to legally regulate such mechanisms. It is better,
he argues, to democratically decide now, before the next disaster,
this new jurisprudence -- the rules by which we will take these
To see the
difference between traditional Anglo-American criminal jurisprudence
and his proposed jurisprudence of prevention, he raises the great
maxim of criminal law: better that ten guilty go free, than one
innocent be wrongly convicted. That principle led our law to require
proof beyond a reasonable doubt before conviction in criminal
trials. Most of us agree with that standard.
Prof. Dershowitz updates the maxim thusly: "Is it better
for ten possibly preventable terrorist attacks to occur than for
one possibly innocent suspect to be preventively detained?"
I would hunch that most people would not be willing to accept
ten September 11th attacks (30,000 dead) in order to protect one
innocent suspect from being locked up and questioned for a while.
Is it possible
to go beyond such gut instincts and ad hoc decision making during
a crises, and begin to develop a thoughtful set of standards for
conduct in this dangerous new world? I don't know.
Dershowitz observes, a jurisprudence develops slowly in response
to generations, centuries of adjudicated events. But to the extent
we recognize the need for it and start thinking systematically,
to that extent we won't be completely hostage to the whim and
discretion of a few men at moments of extreme stress.
At the minimum,
an early effort at a jurisprudence of prevention would at least
help in defining events. Consider the long and fruitless recent
debate about the imminence of the danger from Saddam Hussein's
Iraq, or the current debate on Iran's possible nuclear weapons.
Under traditional international law standards they are both classic
non-imminent threat situations: "early stage acquisition
of weapons of mass destruction by a state presumed to be hostile."
But as Dershowitz
points out, while the threat itself is not imminent, "the
opportunity to prevent the threat will soon pass." Once they
have the weapons it is too late.
Or, a low
price in innocent casualties might soon pass. For instance, in
1981 when Israel bombed Iraq's nuclear site at Osirak, if they
had waited much longer the site would have been "radioactively
hot" and massive innocent civilian casualties would have
been incurred from radioactive releases. It is simply not enough
anymore to say a country violates the norm by acting in its ultimate,
but not imminent, self-defense. We need new standards for a new
realities of unacceptable risk require new -- and lower-- standards
of certainty before defensive action is permitted.
As we develop
a jurisprudence of prevention, we increase the chance of justice
and rationality being a bigger part of such crisis decisions that
our presidents will be facing for the foreseeable future.
sound, practical scholarship is commendable. But what I find heartening
is the political fact that a prominent scholar of the left has
finally entered into a constructive conversation about how to
manage our inevitably dangerous WMD/terrorist infested future.
as Dershowitz and I can find common ground, there should be space
there for a multitude. And from that common ground can grow a
common plan for a common victory.
2006 Creators Syndicate