All praise Prof. Alan Dershowitz
by Tony Blankley
Townhall.com
Feb 22, 2006
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.
The premise 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."
Yet, such 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 necessary actions.
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.
But then 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.
As Prof. 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 age.
The 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.
Dershowitz's 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.
If such 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.
(Editor's Note: Professor Dershowitz's book is now on sale at Amazon.com for 34% off the cover price.)
Tony Blankley is the author of The West's Last Chance and editorial page editor for the Washington Times.
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