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Dershowitz and the Iraq War

A Hawk in Drag

by TIM WILKINSON

Not so long ago, the prospect of the US and UK taking military action against Iran was inconceivable. In September 2005, British Foreign Secretary Jack Straw explicitly said as much in an interview on BBC Radio 4′s Today programme. Prime Minister Tony Blair, obedient as ever to the Bush administration, demoted Straw at the next opportunity ­ the May 2006 Cabinet reshuffle. Around that time, Alan Dershowitz published an article in right-wing British political weekly The Spectator, entitled ‘We can’t attack Iran’. The article seems to put Dershowitz on the side of the Doves on the issue. But appearances can be deceptive.

Dershowitz is no stranger to the pages of The Spectator. In September last year Alan Dershowitz’s short essay ‘How to protect civil liberties’ appeared as its cover-article. A week later, Counterpunch published my response: ‘Paradigm? What Paradigm?’. In the article I exposed Dershowitz’s use of a dishonest ‘camouflage’ strategy: sending one message under cover of a quite different–and to the intended audience, much more acceptable–one.

News of Dershowitz’s reaction to this criticism recently arrived in my pigeonhole. According to my sources, Dershowitz’s talent (it is for litigation) was, as ever, on display as he dismissed my criticisms at a stroke. By alleging two inessential–but telling–falsehoods in the very first sentence of my modest article, he attempted to discredit the entire case. The falsehoods in question? First, that Dershowitz is a Neo-con. I very evidently did not make that claim. Second, that he is a Hawk. I did make that claim. The evidence adduced in rebuttal? The accused testified that he had been opposed to the invasion of Iraq.

This is a claim Dershowitz makes frequently and with an air of pride. It is rarely if ever challenged. He uses the claim to repel all kinds of apparently unrelated accusations ­ for example, in his response to a much-discussed paper by Walt and Meirsheimer, he writes: "my own colleague accused me of being part of this anti-American conspiracy [the Zionist lobby]–they call me an ‘apologist’ for Israel (p.11)–despite my frequent criticisms of specific Israeli policies and my opposition to the war in Iraq." Yet there appears to be a distinct shortage of evidence for this claimed Doveish attitude to Iraq.
To find out whether the public figure Alan Dershowitz opposed the war, we can only look at his public statements on the matter to see whether they called for his country, the USA, to refrain from military action in Iraq. If so, he opposed the war. If he was neutral, or even suggested that waging war would be a good thing, then he did not oppose the war. So what did Dershowitz write at the time when military action was under consideration?
Dershowitz’s clearest–and surely definitive–statement about the proposed war from that time is an article which was published in Canada’s National Post and in the Jerusalem Post on 10 September 2002 (six months before the war). It is accessible on his website via the link entitled ‘Is An Attack On Iraq Justified?’. There are two ‘camouflage’ aspects to the article, corresponding to its two main sections.

2.

The first element of camouflage is the pretence that the bulk of the article–the section entitled ‘The right of preemptive self-defence’–is a moral or legal argument concerned with justification of that rather Hawkish-sounding doctrine. But the first half of the section is not a theoretical argument–instead it consists of a story about the supposed rise of an unprecedented danger in the form of terrorism. The tale culminates in this terrifying assessment of the situation:

"…Iraq has emerged as a credible threat against the west. It has demonstrated its capacity to develop, and its willingness to use, chemical weapons against the Kurds and the Iranians. We know that it is desperately seeking to develop the capacity to manufacture and deploy nuclear weapons, both as an independent threat and as a deterrent against efforts to dismantle its chemical and biological arsenal. So now, for the first time in the nuclear age, the question has been raised about the justification for a preemptive strike by a superpower to prevent a smaller rogue state from developing and deploying weapons of mass destruction."

Because these outlandish claims are camouflaged as part of the background to the issue of justification, the claim that Iraq is a ‘rogue state’ with a ‘chemical and biological arsenal’ which is ‘desperately seeking to develop the capacity to manufacture and deploy nuclear weapons’ might well slip under the radar, unthinkingly accepted by the reader impatient to progress the argument.

The argument which follows is short and takes the form of arguing a case.

The conclusion is couched in an admonitory tone, giving the impression that Dershowitz is placing strict conditions on his reluctant acceptance of a doctrine that some Hawk has put forward. But the doctrine is his own brainchild, and his none-too stringent conditions on the legitimacy of pre-emption match, with suspicious exactitude, his initial fevered assessment of the situation. "The right to take preemptive military action," he warns, "should require a high level of hard evidence that a rogue state, which has demonstrated a willingness to use weapons of mass destruction, is on the verge of developing them."

The first part of this formula–a ‘high level of hard evidence’–sounds a suitably exacting test. It is yet to be seen how much evidence, of what strength, will actually be demanded once this fine-sounding sentiment has faded somewhat from the reader’s memory. Dershowitz does immediately address the question whether Iraq fits the second part of the formula, and concludes without argument that it is indeed a ‘rogue state’. Exactly what a rogue state is supposed to be is not made clear. The category appears to be ad hoc, stipulated to exclude countries such as India and Pakistan while including Iraq.

Predictably enough, we are told that Iraq fits the third condition too: it "has used illegal weapons of mass destruction in the past". This seems to refer to the use of poison gas during a local conflict or–possibly–internal repression. This is not obviously a sign of the desire to use nuclear weapons. But that, apparently, is not important. Dershowitz, under cover of his investigation into moral or legal theory, is in full advocacy mode. The only remaining question, he states, is whether Iraq is on the verge of developing nuclear weapons "which", he adds, taking the opportunity to throw in a couple more unsubstantiated claims camouflaged as argument, "would make it far more difficult to deter it from using the chemical weapons and biological weapons it currently has in its secret arsenal". This arsenal could not, apparently, be kept secret from Alan Dershowitz.

3.

Dershowitz’s second main camouflage tactic is embodied in the second part of the article, entitled: ‘The evidence against Iraq’. The factual and casuistic argumentation in this section has the appearance of being impartial investigation. The effect Dershowitz seeks to convey is of issues judiciously weighed, countervailing viewpoints adduced and assimilated, some progress made in clarifying the issues, but no firm recommendation made. Even if the article did have this character, it is far from an expression of opposition to the war. But it is only at first glance that Dershowitz appears even-handed. This appearance is belied both by the section’s title–this defence lawyer makes no mention of evidence in Iraq’s favour–and by the fact that Dershowitz has already in the previous section stated flatly that Iraq is ‘desperate to develop nuclear weapons’.

The section begins with a paragraph dealing with the difficulty of assessing the accuracy of the administration’s claims. "The world is rightly suspicious of the ‘trust me’ argument. That argument has often proved to be flimsy", he tells us. As though making a concession to the most conspiracy-minded of dissidents, he adds: "or even false"! But this sceptical banner-headline is sandwiched between more Bush-friendly sentiments. By alluding to the difficulties faced by a government which cannot reveal sensitive intelligence data–"by its nature the best evidence is likely to be classified", "an administrationwill have to strike a balance between protecting its intelligence sources and making its case to the public", Dershowitz hints darkly at the existence of a ‘smoking gun’ which unfortunately has to remain secret. In any case, as we proceed to the ‘evidence’ itself, any concern about its reliability seems to evaporate:

"Here is what we are being told about Iraq. Over the past 14 months, Iraq has been trying to buy thousands of specially designed aluminum tubes, capable of being used as components of centrifuges to enrich uranium. They are also developing a capacity to use drone aircraft to spray chemical and biological agents. Most frightening, it is expanding its efforts to enlist terrorists as carriers of weapons of mass destruction. If these facts are true–and there seems little dispute about their accuracy–then we can be relatively certain of two conclusions: one, Iraq is determined to develop nuclear weapons and the capacity to deliver them, and two, they do not yet have that capacity. The third, and perhaps most crucial, conclusion is the most hotly disputed: how much time do we have before these weapons become operational, and is it enough to warrant further efforts short of attack, such as U.N. inspections and other diplomatic actions?"

Dershowitz seems to assume the truth of these claims. The last of them is ‘frightening’–it tells us that Iraq is ‘expanding its efforts to enlist terrorists’.

By this point, the reader may be forgiven for forgetting that this is supposedly only a report of ‘what we are being told’ (told by the advocates of the war, that is, not by Hans Blix). Furthermore, the phrasing suggests that the existence of such efforts is known, and that the only new claim we need appraise is that they are being ‘expanded’. But of course there was never an attempt to enlist terrorists, and it is quite ludicrous to have imagined that there was.

Dershowitz then adds some mild and eminently forgettable caveats which provide more camouflage, before proceeding to the conclusion that Iraq will have, but does not yet have, nuclear weapons. He then poses the question (or ‘conclusion’ as he revealingly misterms it): is there time to carry out further inspections?

"The Bush Administration says no, time is on Iraq’s side, and as soon as they develop a nuclear capacity, all hope of inspections and diplomacy will be futile. Critics of the Administration argue for more time and more diplomacy. The stakes are high and the facts are uncertain. In the age of conventional warfare, the presumption might well favor waiting. But if waiting realistically increases the risk that we or our allies may be exposed to nuclear, biological or chemical attack by Iraq or Iraqi-sponsored terrorists, then the presumption may well favor immediate preventive action, especially if it can be taken so as to minimize civilian casualties. Whatever course we pursue, we may turn out to be wrong."

For a start, we may observe that Dershowitz misrepresents the issue as a choice between ‘diplomacy’ and military action. Weapons inspections and monitoring are not a form of diplomacy, any more than police searches and surveillance are a form of negotiation. No doubt the inspections were complied with only grudgingly and with much foot-dragging–one wonders how the US would react if Hans Blix turned up at their top secret military installations brandishing a search warrant. Nonetheless, the monitoring program would certainly make it very difficult–if not impossible–for Iraq to operate a nuclear programme. Dershowitz gives the impression that the only alternative to war was some sort of ineffectual talking shop. In fact inspections and monitoring were quite sufficient to see off any danger of Iraq becoming a nuclear aggressor.

Leaving that aside, let’s look at the considerations Dershowitz adduces for and against military action. The only argument offered against attack is the baffling: "In the age of conventional warfare, the presumption might well favor waiting." As an outline statement of a case for pursuing a peaceful course this is notably deficient, since it is clear that Dershowitz means to imply that ‘the age of conventional warfare’ is over. This is the mere appearance of an argument–included merely as camouflage for the real agenda.

The corresponding statement concerning the possibility of taking "immediate preventive action"–a camouflage term for a military assault–is of a very different character. Dershowitz says that we should favour war "if waiting realistically increases the riskofattack by Iraq". This condition seems an odd one–unless you are expecting Dershowitz’s duplicitous tactics–because ‘realistically’ is such a feeble word. What is the alternative–that waiting unrealistically increases the risk?

So, as Dershowitz says, "the presumption may well favor immediate preventive action." The addition of "especially if it can be taken so as to minimize civilian casualties" is a splendid bit of camouflage. First, the term ‘especially’ signifies something desirable but not necessary. So it may be preferable to minimise casualties, but we needn’t insist on it.

Furthermore, to minimise casualties is to kill and injure no more than necessary to achieve one’s goal. So, unless Dershowitz is suggesting that we somehow include in our calculations the imaginary casualties which might have been incurred by an Iraqi attack of unknown type, scope and likelihood, the proviso is meaningless, since it is always possible in this sense to ‘minimise’ casualties. So long as one kills only to further one’s aims, and avoids utterly gratuitous murder, one has minimised casualties. Realising this on some level, the reader may be tempted to interpret the term as meaning ‘keep casualties within acceptable limits’. But that is not what it means, and it is not what Dershowitz is saying.

In any case this whole passage with its superficial appearance of reasoned argument is mere camouflage, since it becomes largely irrelevant once we get to the point of the article, which lies in the final sentence:

"The real question is, would it be worse to err on the side of action that turns out to be unnecessary, or of inaction that exposes us to preventable devastation?"

Camouflaged as a question (albeit a near-rhetorical one), this final statement of the problem offers us a choice between two risks: the risk of finding our action to have been unnecessary, and the risk of devastation. Unnecessary action, or devastation. Devastation, or unnecessary action. You choose. But hurry!

It hardly seems worth pointing out that the article is not an expression of opposition to the invasion. This fact alone entails that Dershowitz did not oppose the war in Iraq. Moreover, he did not even present a neutral position. The article–question marks notwithstanding–has the effect of calling for the invasion to go ahead, and soon. On my analysis, Dershowitz actually supported the war on Iraq, by minimising the case against war, hugely exaggerating–even inventing–the case for war, and finally, under the guise of a balanced assessment, reducing the issue to a choice between unnecessary effort and near-certain devastation.

4.

But Dershowitz’s chameleon-like approach to argument, and the accompanying lack of concern for consistency means he has a quote for every occasion. Accused of supporting one view, he can always point to some text in which he has seemingly adopted the opposing view. For example, in the preface to the paperback edition of his popular-history book The Case for Israel (Sep 2004), Dershowitz provides a revised account of his earlier position:

"I was opposed to the war in Iraq, although I thought it was a close question based on my belief that Saddam Hussein did have weapons of mass destruction and was tyrannizing his own people. My 51 to 49 percent opposition was based on the ‘law of unintended consequences’, which seems very much in operation on the ground as I write this preface"

The earlier article–written while the debate about whether to have a war was still worth having–contains absolutely no mention of anything resembling the so-called ‘law of unintended consequences’. The only allusion to possible untoward consequences is of the civilian deaths he meaninglessly hopes be ‘minimised’. Again note that he only says that military action may be presumed best especially if–not only if–civilian casualties can be minimised. Perhaps Dershowitz would now claim that he opposed the war later, once it became evident that civilian deaths were not being minimised by any standard. But opposing the tactics used in fighting the war is not the same as opposing the war.

So this revised account appears to be neatly contrived to suit Dershowitz’s purposes. Dershowitz must continue to claim that he was against the war. He can hardly change that story now–and he wouldn’t want to, given the way the war has gone, and given his carefully maintained public image. But he evidently realises that his contemporaneous publications make it very clear that he thought the war justified. So he has invented a cover story: that he was wise and insightful enough to recognise that there was a high likelihood that the war would not go as planned, or would have undesirable side effects. He even has the audacity to sound rather smug about having supposedly predicted the chaos that now reigns in Iraq. There is, though, no sign of embarrassment at his Hawkish eagerness to believe that Saddam posed a military threat to the USA.

5.

The conclusion of our investigation must be that–contrary to his current claims and to superficial appearances at the time–the Hawkish Alan Dershowitz did not oppose the war in Iraq. Trading on his past as a civil rights lawyer and critic of the 2000 presidential election scandal, Dershowitz used a thin veneer of caution and balance to provide camouflage, allowing his Hawkish views to blend in against the background of liberal opinion. This tactic enabled him to reach and influence an audience that was resistant to standard gung-ho war rhetoric. His article about the looming war in Iran, and any other comments he may publish on the topic, should be read with this in mind.

TIM WILKINSON is a writer and political philosopher. He can be contacted at otisblue@googlemail.com.