Sunday, July 23, 2006

Dershowitz butters the slippery slope
Although I have been aware of him since the late eighties, I never really though about Alan Dershowitz enough to form an opinion of him one way or the other. When I worked in bookstores he was just a name on a book. I knew what section to shelve him in and where to point the customers. I don't follow most crime news, so his career as a celebrity lawyer never had much influence on me. This has changed since 9/11. Now I do have an opinion of Dershowitz and it is not a good opinion.

Within weeks of 9/11, Dershowitz was making the rounds talking about legalizing torture. By January, he had a book out on the subject. This was not the result of a sudden conversion for Dershowitz; he had been advocating such a thing for years for Israel. Now, Dershowitz wants to get rid of the restriction on collective punishment. Like the ban on torture, this is one of the foundations of international law and a benchmark of civilized behavior.

Dershowitz's tone is seductive. He doesn't come across as bloodthirsty or unhinged. He thinks the unthinkable in a rational and slightly sad manner.

On legalizing torture:
In my new book, "Shouting Fire: Civil Liberties in a Turbulent Age," I offer a controversial proposal designed to stimulate debate about this difficult issue. Under my proposal, no torture would be permitted without a "torture warrant" being issued by a judge.

He just wants to "stimulate debate about this difficult issue." What could be more reasonable than that?

On legalizing collective punishment:
The news is filled these days with reports of civilian casualties, comparative civilian body counts and criticism of Israel, along with Hezbollah, for causing the deaths, injuries and "collective punishment" of civilians. But just who is a "civilian" in the age of terrorism, when militants don't wear uniforms, don't belong to regular armies and easily blend into civilian populations?

We need a new vocabulary to reflect the realities of modern warfare. A new phrase should be introduced into the reporting and analysis of current events in the Middle East: "the continuum of civilianality."

Again, he just wants to move the discussion along by providing us with better language for debate.

The result of his rational discussion in both cases will be the same: we will legalize something that was previously unthinkable and illegal. Worse than simply legalizing the reprehensible, Dershowitz's "discussion" framework creates a poisonous moral atmosphere.

Take torture. The argument for torture always rests on the ticking bomb scenario. We know that there is a powerful bomb somewhere that will kill many people. We know that our prisoner knows where the bomb is. We are running out of time. For the moment, leave out any question of the effectiveness of torture or the likeliness of the scenario ever happening. If they thought it would work, most people would torture in these circumstances. No one would let thousands die if they thought a few slaps and cigarette burns could save them. No jury would convict them, and even if one would, we still have pardons and clemency. By keeping torture illegal, we make a statement about who we are as a people and, more importantly, who we are not. The moment we legalize torture — even in the most restricted circumstances, even if we haven't used it yet — we have become a torturing people.

Now the slippery slope argument enters. What if it's only a small bomb? What if we're not sure there's a bomb, but the prisoner knows; do we torture to find out for sure that there is no bomb? What is the prisoner resists torture; do we go after his loved ones? Do we then limit ourselves only to adults or go after his children? Wouldn't it be more affective to start with the children? What is one child compared to thousands? What if the bomb isn't going to kill anyone, but will cause millions in damage?

Dershowitz's "continuum of civilianality" creates the same fog around collective punishment.
There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter. There is also a difference between a civilian who merely favors or even votes for a terrorist group and one who provides financial or other material support for terrorism.


But the recognition that "civilianality" is often a matter of degree, rather than a bright line, should still inform the assessment of casualty figures in wars involving terrorists, paramilitary groups and others who fight without uniforms — or help those who fight without uniforms.


Hezbollah and Hamas militants... are difficult to distinguish from those "civilians" who recruit, finance, harbor and facilitate their terrorism. Nor can women and children always be counted as civilians, as some organizations do. Terrorists increasingly use women and teenagers to play important roles in their attacks.

The Israeli army has given well-publicized notice to civilians to leave those areas of southern Lebanon that have been turned into war zones. Those who voluntarily remain behind have become complicit. Some — those who cannot leave on their own — should be counted among the innocent victims.

If the media were to adopt this "continuum," it would be informative to learn how many of the "civilian casualties" fall closer to the line of complicity and how many fall closer to the line of innocence.

Every civilian death is a tragedy, but some are more tragic than others.

Notice again that he's not actually advocating changing international law; he's just suggesting a better vocabulary to move the discussion along. But, he's moving the discussion in a direction that will result in changing, or disregarding, an important international law. The slippery slope is just as dangerous and ugly here as it is with torture. If everyone might be a little guilty then we need show no restraint or feel any guild about killing anyone who gets in the way of our pursuing legitimate targets. While his tone is rational and reluctant, the result is the same as if he were a bloodthirsty Malkin clone calling for genocide.

Dershowitz's articles have not been the causes of these two international standards falling away. The Bush and Sharon/Olmertz governments were already breaking, or planning to break, these international laws before Dershowitz wrote. However, by muddying or disposing of previously clear limits to moral behavior, Dershowitz provided rhetorical and moral cover for the enthusiastic torturers and war criminals to go ahead.

And the damage goes beyond that. Dershowitz’s framework that we should discuss these things (as a prelude to discarding them) undermines the whole idea of rule of law and standards of civilized behavior. What should be absolute boundaries are now merely temporary obstructions to be handled by skillful negotiation.

Dershowitz once had a reputation as some kind of civil liberties advocate and liberal. Maybe it was once deserved, but no more. Now he’s just another scared "realist" enabling the dismantling of three hundred years of Enlightenment civilization and cheering on the coming darkness.

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