FacebookTwitterGoogle+RedditEmail

The Jihad of Alan Dershowitz

by LIAQUAT ALI KHAN

Law Professor,
Washburn University School of Law

If to dispute well is law’s chiefest end, Harvard law professor Alan Dershowitz has honed this ability to a stunning craft. In high-profile cases, such as O. J. Simpson, Doctor Dershowitz, a seasoned criminal law jurist, serves as a media-savvy lawyer determined to defend “the guilty.” Less well known, however, is that this advocacy Mephistopheles thrives on inventing unpopular, counter-intuitive, and even unjust exceptions to international law–a subject he normally does not teach. These exceptions–mutually folded in each other’s orb—allow the torturing of terrorists, the assassinations of their leaders, and the demolition of their family homes. What is most intriguing is the contempt that Dershowitz has for the International Court of Justice (ICJ) and its current President (the Chinese judge) whom he calls a thug, discarding the language of professional courtesy.

Somewhat intrigued by his incendiary views daringly, and sometimes crudely, expressed in books and newspaper columns, I requested to interview Dershowitz, an interview he granted promptly and generously. We both taped the interview, I for no other reason but to save as a souvenir. I came out of the interview with the clear impression that–setting aside the civil liberties concerns that inform his criminal defense rhetoric–Dershowitz concocts these exceptions not merely to embellish his ivory tower but to proactively defend, and sometimes shape, Israeli policies in occupied Palestine.

For example, Dershowitz’s contempt for the ICJ has deepened ever since the Court decided to rule on the legality of Israel’s separation wall. Comparing the ICJ to a Mississippi court in the 1930s, Dershowitz contends that the ICJ is a credible court for the rest of the world but not for Israel, just as the Mississippi court was a just tribunal for whites but not for blacks. This argument, in its analogical enormity, paints the ICJ as an exceptionally anti-Israel body. Furthermore, Dershowitz challenges the neutrality of ICJ judges, arguing that they are shameless mouthpieces of their governments. When asked to comment on whether he holds the same view about British and American judges on the Court, Dershowitz stepped back to distinguish between the Court and its judges, now saying that the ICJ is bigoted but many of its judges are not. This distinction made no sense to me, since all judges on the Court, except one, held the separation wall to be illegal.

Dershowitz’s exceptional defense of Israel is not confined to academic criticisms of the ICJ (or the International Red Cross or the United Nations). In the interview, Dershowitz, who opposes the death penalty, revealed that he had sat on the Israeli assassination committee that reviews evidence before terrorists are targeted and killed. This “due process” hearing is designed to reduce the raw charge that state-sponsored assassinations are blatantly unlawful.  Dershowitz favors targeted assassination of terrorist leaders “involved in planning or approving on-going murderous activities.” Under this protean standard, it is unclear whether spiritual and political leaders who favor terrorist violence but do not materially participate in specific terrorist acts may also be assassinated. These niceties aside, the idea of a Harvard law professor sitting on an occupying state’s assassination committee would be, to many in the legal academy, a trifle perplexing.

What rattles his many critics the most, however, is the innovative exception Dershowitz draws for the Convention against Torture (1987). The Convention prohibits all forms of torture and provides for no exception. In fact, the prohibition against torture has attained the status of jus cogens–the peremptory norms of international law that cannot be abandoned or altered. Dershowitz confesses to know all this. Yet he makes an empirical argument to carve out an exception. Since torture cannot be eliminated in the real world, he argues: “Ay, think so still, ’til experience change thy mind.” Dershowitz proposes that the legal system regulate torture by requiring state officials to obtain a judicial warrant before torturing.  Despite Dershowitz’s connections and influence, Israel refused to launch the proposed torture warrant, although it embraced the idea of exception to the Convention it had signed. However, when more than 90 percent of the Palestinian security detainees began to be tortured, the Israeli Supreme Court put an end to the fledgling exception.

Undeterred by such judicial rebuffs, Dershowitz continues to manufacture legal exceptions to shore up the universally condemned Israeli practices, such as bulldozing the family homes of terror suspects. Calling it property damage, he apparently dismisses the sanctity, the intimacy, and the memories attached to a family home, anybody’s family home. As if demolition of family homes is a minor punishment, Dershowitz is willing to pull down even the entire “villages of suicide bombers.” He thinks perhaps that it takes a village to raise a suicide bomber. It does. When her entire village has been grabbed by the neck and choked, some kid (a “terrorist”) is surely going to be mad as hell.

Despite his legalistic jihad for Israel’s security and despite his employment of the Harvard Law School stature to propose questionable exceptions to international law, Dershowitz does not completely throw away the sense of limits. For example, he opposes Nathan Lewin, a prominent Washington lawyer and a federal judge hopeful, who blatantly argues, contrary to popular feelings of the Jewish community, that family members of suicide bombers be executed.

By no means is Dershowitz an incorrigible ideologue nor is he morally sightless. His reading of international law is most certainly flawed and he needs “to settle in his studies.” His intellectual honesty is nonetheless beyond doubt. He is what he thinks. He does not duck hard questions. And he does all this with an inexhaustible capacity to swallow contradictions. At the end of the play, however, when all arguments have been made, when all exceptions have been put to rest, and when the nation that launched a thousand missiles has been defended, Dershowitz relaxes his grip with a disarming sense of humor expressed through borrowed jokes. In his book Why Terrorism Works (2002), for example, he tells readers how he, as a boy, pondered over difficult hypothetical scenarios such as this: “If you were up to your neck in a vat of cat vomit and somebody threw a pile of dog poop on your face, would you duck?”

One may relish Dershowtiz’s for his wits, but only to wonder at the unlawful things he permits.

Ali Khan is a professor at Washburn University School of Law in Kansas. His book A Theory of International Terrorism will be published in 2005. He can be reached at: ali.khan@washburn.edu

 

Weekend Edition
April 29, 2016
Friday - Sunday
Andrew Levine
What is the Democratic Party Good For? Absolutely Nothing
Roberto J. González – David Price
Anthropologists Marshalling History: the American Anthropological Association’s Vote on the Academic Boycott of Israeli Institutions
Robert Jacobs
Hanford, Not Fukushima, is the Big Radiological Threat to the West Coast
Ismael Hossein-Zadeh
US Presidential Election: Beyond Lesser Evilism
Dave Lindorff
The Push to Make Sanders the Green Party’s Candidate
Ian Fairlie
Chernobyl’s Ongoing Toll: 40,000 More Cancer Deaths?
Pete Dolack
Verizon Sticks it to its Workers Because $45 Billion isn’t Enough
Richard Falk
If Obama Visits Hiroshima
Margaret Kimberley
Dishonoring Harriet Tubman
Deepak Tripathi
The United States, Britain and the European Union
Peter Linebaugh
Marymount, Haymarket, Marikana: a Brief Note Towards ‘Completing’ May Day
Eva Golinger
My Country, My Love: a Conversation with Gerardo and Adriana of the Cuban Five
Moshe Adler
May Day: a Trade Agreement to Unite Third World and American Workers
Vijay Prashad
Political Violence in Honduras
Paul Krane
Where Gun Control Ought to Start: Disarming the Police
David Anderson
Al Jazeera America: Goodbye to All That Jazz
Rob Hager
Platform Perversity: More From the Campaign That Can’t Strategize
Pat Williams
FDR in Montana
Dave Marsh
Every Day I Read the Book (the Best Music Books of the Last Year)
David Rosen
Job Satisfaction Under Perpetual Stagnation
John Feffer
Big Oil isn’t Going Down Without a Fight
Murray Dobbin
The Canadian / Saudi Arms Deal: More Than Meets the Eye?
Gary Engler
The Devil Capitalism
Brian Cloughley
Is Washington Preparing for War Against Russia?
Manuel E. Yepe
The Big Lies and the Small Lies
Robert Fantina
Vice Presidents, Candidates and History
Mel Gurtov
Sanctions and Defiance in North Korea
Howard Lisnoff
Still the Litmus Test of Worth
Dean Baker
Big Business and the Overtime Rule: Irrational Complaints
Ulrich Heyden
Crimea as a Paradise for High-Class Tourism?
Ramzy Baroud
Did the Arabs Betray Palestine? – A Schism between the Ruling Classes and the Wider Society
Halyna Mokrushyna
The War on Ukrainian Scientists
Joseph Natoli
Who’s the Better Neoliberal?
Ron Jacobs
The Battle at Big Brown: Joe Allen’s The Package King
Wahid Azal
Class Struggle and Westoxication in Pahlavi Iran: a Review of the Iranian Series ‘Shahrzad’
David Crisp
After All These Years, Newspapers Still Needed
Graham Peebles
Hungry and Frightened: Famine in Ethiopia 2016
Robert Koehler
Opening the Closed Political Culture
Missy Comley Beattie
Waves of Nostalgia
Thomas Knapp
The Problem with Donald Trump’s Version of “America First”
Georgina Downs
Hillsborough and Beyond: Establishment Cover Ups, Lies & Corruption
Jeffrey St. Clair
Groove on the Tracks: the Magic Left Hand of Red Garland
Ben Debney
Kush Zombies: QELD’s Hat Tip to Old School Hip Hop
Charles R. Larson
Moby Dick on Steroids?
David Yearsley
Miles Davis: Ace of Baseness
FacebookTwitterGoogle+RedditEmail