Dershowitz's tortured case (full text)

November 8, 2002

To be accused of dishonesty, mendaciousness, deceits, stereotyping, and bigotry by Alan Dershowitz is a mild form of torture, easily rebutted (Letters, THES , November 1). His letter responds to none of my serious objections to his theses in his book, Why Terrorism Works (Books, THES October 4), including the assertion that "our European allies made September 11 inevitable"; the dangerous consequences of following his advice to refuse to understand the causes of terrorism, or of not differentiating it for policy purposes. Plainly he thought it easier to abuse the reviewer than reply to the arguments.

In the passage he cites I said that he makes "outrageous suggestions, from which he withdraws after he thinks he has stretched the limits of the reasonable". That is part of my argument that his book is an exploitation of the aftermath of the massacres of September 11. His rhetorical strategy is to soften us up for hard-line policies: that is what I conveyed, accurately, and without misrepresentation. He complains I did not quote his chapter titled "How an amoral society could fight terrorism". True: I only quoted one of his chapter headings, the one on Europe, because it was the most outrageous, the most provocative, and because the THES is a European journal. My passage that he cites is not as he wrongly says, a paragraph in his book. It describes the sub-headings in the chapter - and glosses the one that follows. Only a strange reader would fail to notice these are policies an amoral society would endorse. Perhaps Dershowitz needs guidance on amorality.

He appears to want to have his cake and eat it with his headings and sub-headings, deciding which audience to appeal to with different emphases. Two can play his games. His chapter on torture has a sub-heading "The Case for Torturing the Ticking Bomb Terrorist". There is no sub-heading for the arguments against. But, I did not rely on that to form my judgment of what he says. Instead I read him.

Under the sub-heading ‘How I began to think about torture’ he writes he originated a ‘controversial proposal’, about a torture warrant. He says that he did not see it as ‘a compromise with civil liberties but rather as an effort to maximize civil liberties in the face the realistic likelihood that torture would, in fact, take place’. But, the fact that he does not see his position as a compromise with civil liberties is not one that a reviewer or a sensible reader must accept.

I never wrote that Dershowitz supports terrorism (a careless invention on his part), just that he appears to admire deeply many who have considered and implemented counter-terrorism. What he provides is a constitutional warrant for torture - yes in limited circumstances, but a warrant. It is (and here I self-consciously stereotype) a lawyer’s trick to say he opposes all torture but in parentheses that are much longer than the statement add that if it ‘twere done, ‘twere better done his way, with a needle in the finger tips and with judicial oversight.

Dershowitz dislikes the neo-conservative label. In the US, neo-conservatives in foreign policy are usually rather uncritical supporters of Israeli policies. He fits this description. Dershowitz’s arguments abandon liberalism, especially its fundamentalism about civil liberties, when it matters - and that is right now. Being a supporter - or member of - the Democratic party does not immunize one from neo-conservatism; and saying you are a liberal does not make you a liberal.

He complains I dislike him because he ‘generally supports’ Israel, and suggests I ethnically stereotype him. Not so. I have formed my appraisal of Dershowitz’s views, rather than person, from his book, and now from his letter, and limited research I have done on his public statements. I have found for instance that he is reported in Forward (June 7 2002 ), a mainstream Jewish American newspaper, as "favouring the limited use of torture to extract information about an impending terrorist attack", and as believing that another attorney’s proposal to execute the family members of suicide bombers represented a ‘legitimate attempt to forge a policy for stopping terrorism’. Perhaps he will insist that these stories, too, cite his positions out of context; but when an experienced advocate is repeatedly misunderstood, it seems likely that he is not being misunderstood.

As for Israel: I oppose its current policies towards Palestinians, both inside and outside of Israel’s internationally recognized borders, and I believe it needs friends with better arguments and better manners than Dershowitz.

Brendan O’Leary
University of Pennsylvania


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