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As Tenure Drama Comes Down to the Wire

Dershowitz v. Finkelstein: Who’s Right and Who’s Wrong?

by FRANK MENETREZ

The feud between Alan Dershowitz, a senior professor at Harvard Law School, and Norman Finkelstein, a junior professor of political science at DePaul University, is back in the news. Finkelstein is up for tenure this year, and Dershowitz has been waging an aggressive campaign against him. Both Finkelstein’s department and an outside committee voted in favor of tenure, but the dean then recommended against it. As of this writing, the university has not made a final decision.

To date, the coverage of the dispute has not included any serious attempt at evaluating the merits of Dershowitz and Finkelstein’s charges and countercharges. It’s clear enough that these guys don’t like or respect each other, and that each claims the other’s work is a travesty. But the question remains: Who’s right, and who’s wrong? Answering that question ought to be relatively straightforward, and it is high time that someone other than Finkelstein or Dershowitz tried to do it publicly.

The feud began when Finkelstein charged that Dershowitz’s book The Case for Israel (2003) was partially plagiarized and wholly false. Finkelstein ultimately published his critique as part of a book of his own, entitled Beyond Chutzpah (2005). The book quotes Dershowitz as offering, in an interview, to "give $10,000 to the PLO" if anyone can "find a historical fact in [The Case for Israel] that you can prove to be false." (p. 91) Finkelstein maintains, to the contrary, that "[t]he genuine challenge is to unearth any meaningful historical fact in The Case for Israel." (p. 91) Finkelstein goes on to quote one assertion after another from The Case for Israel, examine Dershowitz’s supporting evidence, and then adduce his own evidence that the assertions are false and Dershowitz’s evidence is worthless.

Dershowitz has not taken these charges lightly. According to a document posted on Dershowitz’s web site ( www.alandershowitz.com), in June 2006 the chairman of Finkelstein’s department wrote to Dershowitz concerning his charges that Finkelstein "is guilty of various forms of intellectual dishonesty." The chairman asked Dershowitz to direct him "to the clearest and most egregious instances of dishonesty on Finkelstein’s part[.]" Dershowitz’s lengthy response, dated September 18, 2006, is contained in the same document on his web site. It begins by stating that "the ugly and false assertions that I will discuss below are not incidental to Finkelstein’s purported scholarship; they are his purported scholarship. Finkelstein’s entire literary catalogue is one preposterous and discredited ad hominem attack after another." Dershowitz goes on to list a number of alleged lies or fabrications by Finkelstein. He also provides a link to an online copy of chapter 16 of his book, The Case for Peace (2005). That chapter, entitled "A Case Study in Hate and Intimidation" (hereafter "Case Study") deals exclusively with Finkelstein’s critique of The Case for Israel.

So there we have it: Finkelstein claims to have proven, in Beyond Chutzpah, that The Case for Israel is riddled with misrepresentations of fact. Dershowitz, in turn, claims that everything Finkelstein has ever written is "false," "preposterous," and "discredited." And Dershowitz has prepared a list of the "clearest and most egregious instances" of Finkelstein’s dishonesty (hereafter the "List"), which builds on the evidence previously compiled in his Case Study. If we examine Dershowitz’s List and Case Study, then, we might be able to figure out who, if anyone, is right.

In the interest of truth-telling: Before I began researching this article, I had already read all of Finkelstein’s books and thought highly of them. Nonetheless, when I first looked into Dershowitz’s charges, my aim was to conduct an objective investigation to uncover the truth. If Dershowitz was right that Finkelstein’s work was disgraceful, I wanted to know about it.

Also, when I started I had read none of Dershowitz’s books. In the course of my research I consulted his books but ultimately found it unnecessary to read any of them from cover to cover, for reasons that will become clear in what follows.

Prior to publication, I emailed drafts of this article to both Finkelstein and Dershowitz for comment. Finkelstein gave me several substantive comments, some of which I incorporated. Dershowitz’s response, in its entirety, was "What a rediculous [sic] and biased screed filled with demonstable [sic] falsehoods and half truths[.]" I wrote back, asking him to specify the half-truths and demonstrable falsehoods so that I could correct them. I also asked him for information on three specific issues. His response, in its entirety, was, "Your bias is so obvious you can’t seem to help it[.]"

BEYOND BEYOND CHUTZPAH

Beyond Chutzpah purports to refute virtually every aspect of The Case for Israel’s account of Israel’s human rights record and the history of the Israel/Palestine conflict. Consequently, the most striking feature of Dershowitz’s List is that not a single item on the List is taken from Beyond Chutzpah.

In the Case Study, Dershowitz’s examples of Finkelstein’s alleged "pattern" of "mak[ing] up quotations and facts" (p. 185) are likewise not drawn from Beyond Chutzpah, but there is a straightforward explanation: Both The Case for Peace, which contains the Case Study, and Beyond Chutzpah were published in August 2005, so it was impossible for either book to contain a response to the other. But when Dershowitz prepared the List in the fall of 2006, he had ample time to identify any instances of dishonesty in Beyond Chutzpah. Still, the List mentions none.

Some of Dershowitz’s examples do, however, relate to Beyond Chutzpah. Here’s the background for the main example: In The Case for Israel, Dershowitz laments that Israel’s methods of interrogating Palestinian prisoners were "universally characterized as torture" even though "they were nonlethal and did not involve the infliction of sustained pain." (pp. 137-138) The endnote to that sentence reads as follows: "One person died following shaking, but an independent investigation attributed his death to an unknown preexisting medical condition." (p. 252, n.9) As support for those claims, the endnote cites a single decision of Israel’s Supreme Court. In Beyond Chutzpah (p. 160), Finkelstein quotes the endnote verbatim and then attempts to refute it.

Against Dershowitz’s claim that there has been only one interrogation-related death, Finkelstein quotes the reports of two independent human rights organizations, both of which concluded that there have been multiple such deaths. (Beyond Chutzpah, pp. 160-161) And against Dershowitz’s claim that the one prisoner who died "following shaking" actually died because of a preexisting medical condition, Finkelstein quotes Amnesty International’s report on that prisoner, entitled Death by Shaking: The Case of Abd al-Samad Harizat. According to Finkelstein, Amnesty reports that Israeli officials originally attributed the death to a preexisting medical condition, but "it so happened that Abd al-Samad Harizat was in good health at the time of his sudden death." (Beyond Chutzpah, p. 161) The Amnesty report further states that the official autopsy, which was conducted by two Israeli doctors and observed by a Scottish doctor on behalf of the decedent’s family, concluded that Harizat died because of violent shaking. According to Amnesty, the Department of Investigations of Police reached the same conclusion, as did both an "expert opinion" on the official autopsy report and a statement from the Israeli Ministry of Justice. Finkelstein then writes the following (Beyond Chutzpah, pp. 161-162):

The Supreme Court decision cited by Dershowitz (HCJ 5100/94) states that "[a]ll agree" that Harizat "expired after being shaken." The Court decision makes no mention of an "independent investigation" attributing Harizat’s death to "an unknown preexisting medical condition." Indeed, no record of this independent investigation exists.

That’s the background. What does Dershowitz have to say in response? In his List, Dershowitz writes:

Here is what [Finkelstein] said in Chicago on March 18, 2004: "There was a famous case in 1995 of a Palestinian who was shaken to death while in detention. And nobody disputed the facts the Israeli pathologist’s office, the forensic pathologists who were brought into the case, eventually it went to the Israeli High Court of Justice they all agreed. And I’m quoting now from the High Court of Justice Judgment: ‘All agree that Harizad [sic.: Harizat] died from the shaking.’ If you go to Dershowitz’s book, he discusses the case and says, quote, ‘An independent inquiry found that he didn’t die from the shaking, but from a previous illness.’ That was just made up."

It was Finkelstein who made up the quotation. The Supreme Court actually said that "the suspect expired after being shaken." The difference between "died from the shaking" and "expired after being shaken" is considerable, especially since the sentence that follows in the decision attributes the death to an extremely rare complication, and the sentence before summarizes the literature as having no examples of anyone dying from shaking. This is not a translation error. It is an example of a made-up quotation. Remember, Finkelstein said he was "quoting," not paraphrasing, yet the words he purports to quote simply do not exist. Finkelstein has never, to my knowledge, responded to this serious charge of fabricating a quotation from the Israeli Supreme Court.

Finkelstein’s pattern of making up quotations . . . should alone disqualify him from any tenured academic position.


Because Dershowitz cites no book or other publication, I will assume that he is quoting an interview or lecture that Finkelstein gave in Chicago on March 18, 2004. I will also assume that he is quoting Finkelstein accurately. Dershowitz makes essentially the same argument in his Case Study (p. 185), though there he quotes from a Finkelstein appearance on C-SPAN2. (p. 233, n. 118)

What should we make of this exchange? On the one hand, in Beyond Chutzpah Finkelstein

(1) accurately quotes both Dershowitz and the Supreme Court decision,

(2) adduces evidence refuting Dershowitz’s claim that there has been only one Palestinian death from interrogation,

(3) asserts that the Supreme Court decision cited by Dershowitz makes no reference to any "independent investigation" that concluded Harizat’s death was not caused by shaking,

(4) cites multiple independent investigations that did attribute the death to shaking, and

(5) asserts that there is no record of an independent investigation that reached a contrary conclusion.

On the other hand, in his List Dershowitz:

(1) ignores what Finkelstein wrote in Beyond Chutzpah,

(2) quotes some oral presentations in which Finkelstein misquoted two passages that he later quoted accurately in Beyond Chutzpah, and

(3) charges Finkelstein with having "made up the quotation[s]."

Dershowitz never responds to, let alone refutes, any of Finkelstein’s substantive claims in Beyond Chutzpah concerning the number of interrogation deaths, the actual independent investigations of Harizat’s death, or the fact that Dershowitz’s cited source does not mention an independent investigation that attributed the death to a preexisting medical condition.

Thus, continuing to assume that Dershowitz is accurately quoting Finkelstein, we can draw the following conclusions. Finkelstein appears to have made two oral misquotations of material he quoted correctly in Beyond Chutzpah. Dershowitz’s The Case for Israel appears to contain multiple serious falsehoods concerning Israel’s violent interrogation of Palestinian prisoners.

Moreover, in the Case Study, Dershowitz attempts to conceal the inaccuracies in The Case for Israel by misrepresenting both his own endnote and the Supreme Court opinion that he cited in it. Dershowitz writes (p. 234, n. 120):

What the High Court said was that "medical literature has not, to date, reported a case in which a person died as the direct result of having been shaken." It did reference a case, different from the one I discussed in my book, in which "the suspect expired after being shaken," but explained that "according to the state, that case was a rare exception, [where] death was caused by an extremely rare complication which resulted in pulmonary edema" (emphasis added). . . . In addition, Finkelstein misquotes me as saying "he didn’t die from the shaking." I actually said, "one person died following shaking," and he knows I was discussing a different case.

Dershowitz thus claims that the case in which, according to the Supreme Court, "the suspect expired after being shaken" is not the same case Dershowitz discussed in The Case for Israel. That cannot be true: The endnote in The Case for Israel refers to only "[o]ne person [who] died following shaking[;]" Dershowitz mentions that one person as the one potential exception to his claim that Israel’s interrogation methods are "nonlethal." The only source Dershowitz has ever cited concerning that one person is this Supreme Court opinion. But the Supreme Court opinion mentions only one case of a person dying after shaking, so they must be the same case.

It should also be noted that in this endnote from the Case Study, Dershowitz largely admits that The Case for Israel’s reference to an "independent investigation" was incorrect. Recall that, in The Case for Israel, Dershowitz cited this Supreme Court opinion as his only source concerning the "independent investigation" that found the death was caused by an unrelated medical condition. Now, in the Case Study endnote, Dershowitz acknowledges that the Supreme Court did not assert in its own voice that Harizat’s death was caused by "an extremely rare complication." The court did mention that assertion, but the court neither endorsed it nor attributed it to an independent investigation. Rather, as quoted by Dershowitz, the court said that "according to the state," the death was caused by an "extremely rare complication." That is, the assertion that Harizat’s death was caused by a rare complication was made by the Israeli government lawyers who were defending the security services’ interrogation methods. The court’s opinion states no basis for the lawyers’ assertion–for all the court tells us, the lawyers might have just made it up.

Dershowitz’s List contains no other items related to Beyond Chutzpah. (It mentions the plagiarism issue, which I address below, but the List unequivocally states that Dershowitz is "not answering that charge here.") But his Case Study does contain two others. (p. 185) Dershowitz writes that

Finkelstein claims that in The Case for Israel I "never once–I mean literally, not once–mention[ed] any mainstream human rights organization. Never a mention of Amnesty’s findings, never a mention of Human Rights Watch’s findings, never a mention of B’Tselem’s findings . . . none." But a simple check of the index reveals that I repeatedly discuss–and criticize–the findings of these very organizations.

Dershowitz again cites the C-SPAN2 appearance as his source for the quotation. (p. 233, n. 117) Again, I will assume he is quoting it accurately.

Here is what Finkelstein writes in Beyond Chutzpah (pp. 92-93):

The most fundamental–and telling–fact about the chapters of The Case for Israel devoted to human rights issues is that never once does Dershowitz cite a single mainstream human rights organization to support any of his claims. . . .

Not only does Dershowitz systematically ignore their findings, but in order to justify having done so, he seeks to malign the human rights organizations themselves.

Finkelstein then goes on to discuss some of The Case for Israel’s criticism of human rights organizations such as Amnesty International and B’Tselem (an Israeli organization monitoring human rights violations in the occupied territories). (p. 93)

Again, what should we make of this exchange? On the one hand, in Beyond Chutzpah, Finkelstein points out that Dershowitz, in The Case for Israel, purports to defend Israel’s human rights record but never once cites a mainstream human rights organization in order to support his claims; rather, Dershowitz cites such organizations only to discredit them. On the other hand, Dershowitz (1) quotes an incorrect oral statement by Finkelstein to the effect that The Case for Israel never cites mainstream human rights organizations at all, (2) points out that The Case for Israel does indeed cite mainstream human rights organizations (in order to discredit them), and (3) charges Finkelstein with "mak[ing] up . . . facts."

Again, Finkelstein appears to have made a fairly trivial oral misstatement. Dershowitz, however, appears to have implicitly admitted that he did precisely what Beyond Chutzpah charged him with doing: The Case for Israel, his bestselling defense of Israel’s human rights record, cites mainstream human rights organizations only to discredit them, never for support.

The Case Study contains one other charge relating to Beyond Chutzpah. Background: Dershowitz writes in his book Chutzpah, concerning the plight of the Arab Palestinians who were expelled in 1948, that the expulsion "is a fifth-rate issue analogous in many respects to some massive urban renewal or other projects that require large-scale movement of people." (Chutzpah, p. 215) In Beyond Chutzpah, Finkelstein accurately quotes part of that statement (he omits "or other projects that require large-scale movement of people"). (p. 47) Later, he cites several prominent Israeli scholars (Baruch Kimmerling, Ilan Pappe, and Benny Morris) as having described the 1948 expulsion as an "ethnic cleansing." (p. 53, n. 29)

In the Case Study, Dershowitz writes the following: "Another made-up quotation by Finkelstein is his claim that in my book Chutzpah I analogized ‘ethnic cleansings’ to ‘urban renewal.’ I say nothing of the kind in Chutzpah. I never even mention ‘ethnic cleansing.’" (p. 185) As his source, Dershowitz cites a talk by Finkelstein at the Vancouver Public Library in 2004. (p. 234, n. 121)

It is true that the relevant passage in Chutzpah does not employ the phrase "ethnic cleansing." It is also true that in Chutzpah Dershowitz drew an analogy between urban renewal and the 1948 expulsion of the Arab Palestinians, which, according to Finkelstein, has been described by prominent Israeli scholars as "ethnic cleansing." In his List, Dershowitz does not challenge Finkelstein’s claim about what the Israeli scholars say, so I have not independently verified it. I also have not checked the accuracy of Dershowitz’s quotation from Finkelstein’s appearance at the Vancouver Public Library. But it should be noted that it is not clear from Dershowitz’s own rendering of the quotation that Finkelstein ever attributed the phrase "ethnic cleansing" to Dershowitz.

That’s it. Apart from the plagiarism issue, nothing else in either the List or the Case Study (or elsewhere in The Case for Peace) relates to Beyond Chutzpah.

Skeptical readers may wonder whether Dershowitz’s charges could really be this silly and inconsequential. Such readers should not take my word for it. The List is posted on Dershowitz’s web site, and it contains a link to an online copy of the Case Study. The texts of The Case for Israel, The Case for Peace, Chutzpah, and Beyond Chutzpah, including endnotes, are also searchable online at Amazon.com. (Not all pages are viewable online, but many of the relevant ones are.)
Recall now that in Beyond Chutzpah Finkelstein quotes and purports to refute claim after claim after claim from The Case for Israel. Recall also that one year later, Dershowitz, when preparing his List of the "clearest and most egregious instances" of Finkelstein’s dishonesty, does not even attempt to refute a single claim in Beyond Chutzpah, plagiarism aside. And note that the foregoing discussion seems to tell us something about just how "clear and egregious" some of the instances on the List are.

From these facts it appears reasonable to conclude that, with the possible exception of the plagiarism issue, Dershowitz has been unable to find a single false statement in Beyond Chutzpah. And it follows that, as far as Dershowitz himself can now determine, his own book The Case for Israel is full of falsehoods concerning Israel’s human rights record and the history of the Israel/Palestine conflict, while Finkelstein’s book contains none.


CONSPIRACY THEORIES

Although published at the same time as Beyond Chutzpah, the Case Study constitutes Dershowitz’s most thorough discussion of Finkelstein’s assault on The Case for Israel. The thesis of the Case Study is that Finkelstein’s attack was the product of a "well-orchestrated campaign" devised by a left-wing anti-Israel conspiracy whose members are Noam Chomsky, Alexander Cockburn, and Finkelstein. The chapter opens with an introductory description of the conspiracy. (pp. 167-170) Next come subsections consisting of attacks on each of the alleged conspirators. (pp. 170-172 (Chomsky), pp. 172-175 (Finkelstein), p. 175 (Cockburn)) The next subsection describes the conspiracy’s previous work, including its campaign to discredit Joan Peters’ From Time Immemorial (1984), the book Finkelstein accuses Dershowitz of plagiarizing. (pp. 175-180)

Finally, in the last subsection of the chapter, Dershowitz turns to the conspiracy’s attacks against him. (pp. 180-188) The bulk of his discussion, however, either deals exclusively with the plagiarism charge (pp. 180-184) or describes the power and extensive influence of the conspiracy. (pp. 186-188) (E.g., "Finkelstein can get anything he writes published, regardless of its demonstrable falsehoods, because Noam Chomsky has enormous influence on the hard-left press." Beyond Chutzpah was in fact published by the University of California Press after undergoing a rigorous peer-review process.) Apart from the plagiarism issue, just one page of the twenty-two page chapter is devoted to arguing that some of Finkelstein’s claims about Dershowitz are false. (p. 185)

That one page contains, by my count, five separate charges against Finkelstein. I have already dealt with three of them (shaking, citation of human rights organizations, and ethnic cleansing) in the previous section. The remaining two do not require extensive discussion. One is based on a quote for which Dershowitz cites no source, so it can fairly be ignored. The other involves a quote from a talk Finkelstein gave in Calgary in 2004. According to Dershowitz, "Finkelstein has even alleged that the autobiographical account of my life in Chutzpah [1991]–growing up as an Orthodox Jew in Brooklyn in the 1940s and 1950s–does not ‘have much to do [with] what has actually happened in [my] life.’" (p. 185, alterations by Dershowitz)

I have not checked the accuracy of the quote, because I cannot imagine why anyone would care enough to debate this one. I will only note that Dershowitz’s own presentation of the quote leaves open the possibility that what Finkelstein actually said was that, although Chutzpah purports to be autobiographical, it spends relatively little time discussing Dershowitz’s own life and spends an inordinately large amount of time discussing other matters, such as the 1948 expulsion of the Arab Palestinians. But I don’t know whether that’s what Finkelstein said, and, if it is, I don’t know whether it’s true.

Apart from that one page, plus the plagiarism issue, Dershowitz’s arguments in his Case Study suffer from the well-known defect inherent in all ad hominem arguments: They attack the messenger but leave the message untouched. That is, it does not matter whether Dershowitz’s conspiracy theory is true. Even if it were true, that would not show that any of Beyond Chutzpah’s claims about The Case for Israel (and about Dershowitz’s other writings) are false.

Because Dershowitz’s conspiracy theory thus has no bearing on the merits of the dispute between Finkelstein and Dershowitz, I will not discuss it further.


PLAGIARISM

When Finkelstein first attacked The Case for Israel in a debate with Dershowitz on the radio program Democracy Now! in 2003, one of his principal charges was that Dershowitz had plagiarized significant portions of his book from Peters’ From Time Immemorial. Finkelstein has not dropped the plagiarism charge, but he has repeatedly stated that it is of secondary importance, the main issue being the truth about Israel’s human rights record. In Beyond Chutzpah, he relegates the plagiarism discussion to one of the book’s three appendices, introducing it with the observation that, next to Dershowitz’s alleged whitewash of Israel’s human rights record, "Dershowitz’s academic derelictions seem small beer." (p. 229)

In the Democracy Now! debate, Finkelstein also charged that Dershowitz did not write The Case for Israel himself. Dershowitz claims he can prove he wrote it, because he is still in possession of his own handwritten manuscript for the book. (Case Study, p. 181) Finkelstein informs me that he requested a copy of that manuscript, but Dershowitz refused to provide it. In any event, Finkelstein did not include the charge in Beyond Chutzpah. I therefore will not discuss it further.

Some background on Peters’ book is needed to ground an assessment of the plagiarism controversy. From Time Immemorial argues that at the time of Israel’s founding in 1948, many of the Arab inhabitants of the areas that became the state of Israel were actually recent immigrants–they and their ancestors had not lived there "from time immemorial." When the book was originally published in the United States in 1984, it received glowing reviews in periodicals across the country and quickly became a bestseller. Later, when a number of scholars (of whom Finkelstein was the first) examined the book carefully, they concluded that it was of no scholarly value whatsoever. It ignores important parts of the documentary record, misuses the sources on which it does rely, and contains straightforward logical errors.

Consequently, Peters’ book has been rejected as worthless by the scholarly community around the world, including in Israel. Skeptical readers should not take my word for it. Yehoshua Porath, one of Israel’s leading scholars on the Arab population of Palestine during the pre-state period, described the book as a "sheer forgery," adding that "[i]n Israel, at least, the book was almost universally dismissed as sheer rubbish except maybe as a propaganda weapon." (New York Times, Nov. 28, 1985). Porath, who describes his own politics as "centrist," also tore the book to shreds in a review published in The New York Review of Books. (Jan. 16, 1986) The review is freely available online, together with a subsequent exchange of letters that is also quite illuminating. (March 27, 1986) Given the well-known scholarly repudiation of Peters’ book, no scholar would rely on it, any more than a scholar would rely on The Protocols of the Elders of Zion.

Now, back to the plagiarism issue: In Beyond Chutzpah, Finkelstein argues that in the first two chapters of The Case for Israel Dershowitz plagiarized Peters by lifting numerous quotations and citations directly from Peters’ book without acknowledging that he found them there. (Beyond Chutzpah, p. 230)

Dershowitz counters that although he was led to some primary sources by seeing them cited in Peters’ book, he always tried to check them before citing them. If he could not find the primary source himself, he cited Peters. If he was able to check the primary source, he cited it directly, without mentioning Peters. He claims that his failure to cite Peters in such circumstances is proper. (Case Study, p. 182)

Finkelstein’s principal response is that Dershowitz’s quotations and citations of primary sources contain obvious errors that Dershowitz could not have made if he had checked the primary sources himself, and that Dershowitz’s errors are identical to Peters’ errors concerning the same primary sources. (Beyond Chutzpah, pp. 230-231) Finkelstein infers that Dershowitz copied the quotations and citations from Peters rather than checking the primary sources himself.

Dershowitz has never, to my knowledge, responded to Finkelstein’s argument concerning the identical errors in The Case for Israel and From Time Immemorial. He wrote the List, for example, one year after publication of Beyond Chutzpah, but in it he expressly declined to address the plagiarism issue. Dershowitz has not argued that the alleged errors do not exist, or that his errors are not identical to Peters’, or that the identity of the errors is just a coincidence and the errors are easy to make even when one checks the primary sources.

Finkelstein’s argument concerning the identical errors strikes me as persuasive, and Dershowitz’s failure to respond to the argument strikes me as telling. But I expect that reasonable minds could differ.

The entire plagiarism issue, however, seems to me to be of relatively little importance. If Dershowitz had uncovered a little-known but true and important piece of scholarship on the Middle East and had plagiarized it, passing off the original author’s work as his own, he would surely have been guilty of a serious breach of academic integrity and would have done an injustice to the original author, who would have been deprived of deserved credit. At the same time, however, Dershowitz would have been doing a substantial public service by bringing the original author’s true and important insights to a much wider audience than they had previously received. If that were what he had done, on balance I would probably be glad he had done it.

But that is not what he did. Instead, he relied upon a bestselling book that has been condemned by the international scholarly community. Even if his citations to Peters were impeccable–even if he is right that they are in fact impeccable–it is still true that he repackaged material from Peters’ discredited bestseller, From Time Immemorial, and added to it his own imprimatur, as a Harvard law professor, in his bestseller The Case for Israel.

On this issue, Dershowitz has only two potential lines of defense. He could argue that he does not really rely on Peters’ book in The Case for Israel, or he could argue that, contrary to the international scholarly consensus, Peters’ book really is a legitimate source on which a serious scholar can reasonably rely.

To some extent, Dershowitz pursues both defenses. In The Case for Israel, for example, Dershowitz writes that "Peters’s conclusions and data have been challenged. . . . I do not in any way rely on them in this book." (p. 246, n.31) Likewise, in his Case Study, Dershowitz writes, "I disagreed with some of [Peters'] conclusions and said so in my book The Case for Israel." (pp. 175-176) As proof that he had "said" he "disagreed with some of her conclusions," Dershowitz notes that in The Case for Israel he wrote, "Palestine was certainly not a land empty of all people. It is impossible to reconstruct the demographics of the area with any precision, since census data for that time period are not reliable." (The Case for Peace p. 229, n. 60, quoting The Case for Israel, p. 24) The quote does not mention Peters, so it is not in fact an example of Dershowitz having said that he disagreed with Peters’ conclusions. Moreover, to my knowledge not even Peters ever claimed that Palestine was "a land empty of all people" before Zionist immigration.

Despite Dershowitz’s attempts to distance himself from certain aspects of Peters’ book, the fact remains that by his own admission (Case Study, p. 182) he relied upon Peters at least for some primary sources that he was unable to locate himself. Given the scholarly consensus concerning Peters’ book, no serious scholar would have done that.

As regards the legitimacy of relying on Peters, Dershowitz writes in his Case Study that, although the book has its flaws, it "was supported by evidence and contributed an important new element to the debate." (p. 176) To support that claim he cites reviews of Peters’ book that appeared in the Washington Post in 1984 and the Financial Times in 1985. (p. 229, n. 61) Regardless of what those reviews do or don’t prove about Peters’ contribution to scholarly debate in the mid-1980s, they prove nothing about whether Peters’ book was considered a reputable scholarly source in 2003, when Dershowitz published The Case for Israel.

Dershowitz further states that "[a]ll Finkelstein . . . managed to show was that in a relatively small number of instances, Peters may have misinterpreted some data, ignored counterdata, and exaggerated some findings — common problems in demographic research that often appear in anti-Israel books as well, including those of Chomsky." (p. 177) He cites no authority for that assessment, and he never sets forth or engages with Finkelstein’s arguments in detail. (Readers who are curious about Finkelstein’s critique of Peters can find it in his Image and Reality of the Israel/Palestine Conflict (2d ed. 2003) and judge for themselves.)

I take it that Dershowitz has not succeeded in refuting the international scholarly consensus that From Time Immemorial is neither a serious piece of scholarship nor a source on which a serious scholar would reasonably rely. Moreover, Dershowitz’s weak disclaimers–e.g., certain aspects of Peters’ book have been "challenged," and the book suffers from "common problems in demographic research"–actually make matters worse. They create the misleading impression that the book’s flaws are common in other reputable works in the field, and that the book is merely the subject of scholarly controversy. It is not. Serious scholars no longer debate Peters’ book–they dismiss it.

There is consequently no way out for Dershowitz here. Either he knew that Peters’ book was discredited or he didn’t. If he did know it, then he intentionally used a thoroughly disreputable source. If he didn’t know it, then he was too ignorant of mainstream scholarly work on Israel/Palestine to deserve to be taken seriously. Either way, by relying on Peters in The Case for Israel and expressly defending her in The Case for Peace, he took himself outside the realm of serious, informed discussion of the topic on which he was writing.


ENOUGH IS ENOUGH

When I started to research and write this article, I intended to evaluate every charge that Dershowitz’s List levels against Finkelstein. I started with the charges related to Beyond Chutzpah, both because they seemed the most relevant to Finkelstein’s tenure case and because I thought they would be the easiest to investigate, since the documentary record concerning those charges is extensive and readily accessible. After wrapping those up, I intended to move on to the other items on Dershowitz’s List. But I have abandoned that project. Here’s why:

The first item on the List is entitled "Burt Neuborne." The first sentence after the title reads: "Finkelstein actually tried to get Burt Neuborne, a professor of law at NYU and one of the country’s top civil liberties and Supreme Court advocates, disbarred." Here’s some background on Neuborne and Finkelstein: Neuborne was one of the lead attorneys representing the plaintiffs in the litigation against Swiss banks to recover funds in dormant accounts that had belonged to Holocaust victims. The banks ended up settling the suit for $1.25 billion. In his book The Holocaust Industry (2d ed. 2003), Finkelstein is harshly critical of the conduct of that litigation, arguing that the banks were "blackmailed" into settling for an amount far in excess of what was justified by the evidence (which is roughly $60 million, according to Finkelstein), and that much of the $1.25 billion recovery will not actually be paid to Holocaust survivors (hence Finkelstein’s label of the affair as a "double shakedown": first the banks are "shaken down" for more than they owe, and then the Holocaust survivors are "shaken down" by being denied the recovered funds). Neuborne vigorously disputes virtually every aspect of Finkelstein’s account.

There is an item posted on Finkelstein’s web site (www.normanfinkelstein.com) entitled "Should Burt Neuborne be Disbarred?" The text of the item, however, says nothing about disbarment. Rather, it consists almost entirely of a letter from Neuborne that was published in The Nation magazine in December 2000. (The letter responded to another letter in The Nation from Finkelstein, which itself was a response to a previous letter from Neuborne.) Dershowitz reproduces Neuborne’s December 2000 letter in its entirety in his List, but he gets the date wrong (2006 instead of 2000). On his web site, Finkelstein prefaces and follows Neuborne’s December 2000 letter with some brief critical comments, in which he again calls Neuborne a "blackmailer," and an "outrageous liar" as well.

Those are strong words, to be sure. But Dershowitz claims that "Finkelstein actually tried to get Burt Neuborne . . . disbarred." The posting on Finkelstein’s web site does not constitute an attempt to get anyone disbarred. Neuborne is a member of the New York bar. The only way to try to get a New York lawyer disbarred is to send a letter of complaint to a disciplinary committee appointed by the New York state courts.

So I wrote to Finkelstein and asked him whether he had ever tried to get Neuborne disbarred and, if not, whether he was aware of any basis for the charge, other than the posting on his web site. He replied, "Of course not."

I also wrote to Neuborne. I quoted Dershowitz’s charge verbatim and asked Neuborne if it was true. I also asked specifically whether Finkelstein had sent a complaint letter to a court-appointed disciplinary committee. Neuborne’s reply began, "Frankly, I pay almost no attention to Mr. Finkelstein, so I can’t say for certain what he’s done." Neuborne referred me to the posting on Finkelstein’s web site but said he hadn’t seen it himself, because he has never visited the web site. He also said he thought Finkelstein called for his disbarment in a letter to The Nation. I checked; he didn’t. And even if he had, writing a letter to The Nation does not constitute an attempt to get anyone disbarred.

But, I thought, what if Finkelstein is lying? How could I find out whether he really did send a complaint letter to a disciplinary committee?

It turns out I can’t. Disciplinary proceedings are strictly confidential. The information becomes public only if the committee determines that the complaint has sufficient merit to warrant disciplining the attorney. I didn’t bother to check Neuborne’s disciplinary record, because I have absolutely no reason to believe it is anything but spotless. Also, I learned that the disciplinary committees sometimes investigate and resolve meritless complaints without ever informing the subject attorney. So the fact that Neuborne does not know of any complaint letter filed by Finkelstein does not prove that no such letter exists.

But here’s the problem: In this investigatory endeavor, Dershowitz is in no better position than I am. Neither of us can lawfully get at the relevant records, assuming they exist. If Dershowitz is in possession of disciplinary records of a complaint by Finkelstein against Neuborne, he apparently didn’t get them from Finkelstein or Neuborne, because they know of no such records. So Dershowitz would have to be in unauthorized possession of highly confidential information about a fellow attorney’s disciplinary history. That would be a serious transgression and, I assume, not one that Dershowitz would want to trumpet.

So, giving Dershowitz the benefit of every doubt, I have to conclude that he has no more evidence to support his charge than I do. That is, he has nothing more than the posting on Finkelstein’s web site. But Dershowitz knows as well as I do that the posting on Finkelstein’s web site does not constitute an attempt to get anyone disbarred.

Recall that Dershowitz did not say "Finkelstein called for Neuborne’s disbarment," or "Finkelstein asked whether Neuborne should be disbarred." Rather, in his List he wrote "Finkelstein actually tried to get Burt Neuborne . . . disbarred." Thus, Dershowitz drafted his charge in a way that readers would interpret to mean Finkelstein took at least some of the procedurally necessary steps to get Neuborne disbarred. And, giving Dershowitz the benefit of every doubt, he has no evidence that that’s true.

Thus, putting aside Finkelstein’s unequivocal denial (which we have been given no reason to question), the best that can be said for the charge is that we cannot independently confirm whether it is true or false. But the only reasonable inference from the available evidence is that the charge, interpreted in the way that any ordinary reader of the List would interpret it, is fraudulent, because Dershowitz has no evidence to support it.

On that basis, I concluded that the first sentence of the first item on Dershowitz’s List of the "clearest and most egregious instances" of Finkelstein’s lies is itself a fraud. And on that basis I concluded that my original project–to sift through and evaluate every single claim on Dershowitz’s List–should be abandoned.

My work on the project, however incomplete, does nonetheless raise the following interesting question: If this is the best that an adversary as clever and dedicated as Dershowitz can come up with, how could Finkelstein possibly not deserve tenure?

Frank J. Menetrez received his PhD in philosophy and JD from UCLA. His
article The Real Reason to Get Out of Iraq appeared on ZNet last fall (http://www.zmag.org/content/showarticle.cfm?ItemID=11223). He can be reached at frankmenetrez@yahoo.com.