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CounterPunch
October
5, 2002
Queen Dershowitz
by BRUCE JACKSON
I've long had an image of Alan Dershowitz as the
legal avatar of the Wicked Queen in Snow White. I don't mean
I imagine him in drag going around poisoning people. It's just
that all those times I heard him sniping about William Kunstler
back when Kunstler was taking those poor and generally unattractive
defendants Dershowitz wouldn't be in the same courtroom with,
I'd imagine Dershowitz standing in front of a mirror, neatening
up the moustache he wore in those days, and saying, "Mirror,
mirror on the wall, who's the best criminal rights lawyer of
them all?"
The mirror says, "Bill Kunstler.
You know that, Alan."
Dershowitz grinds his teeth, goes "Grrrrrrrr!"
and then rushes off to meetings with Claus von Bulow or Mike
Tyson or Michael Milken or another of his very wealthy clients.
I don't think it was Kunstler's superior
legal skill that bothered Dershowitz. Dershowitz specializes
in appeals, in library work; I don't know if he's ever done a
criminal trial. Kunstler occasionally did appeals, but his great
love was the courtroom, the work of going in front of a jury
and developing and proving a case. He loved going against the
power of the state armed with nothing but words and depending
on nothing but the willingness of a jury to listen. Dershowitz
and Kunstler were never, therefore, competitive in the work.
What really seemed to gnaw at Dershowitz
was Kunstler's huge public visibility. Kunstler was someone people
talked to on the street, in the subway, in stores. He was always
getting into discussions with people, some of whom disagreed
with him, some of whom didn't. But Dershowitz-who ever came up
to him on the A train to talk about some case, past or present?
Who ever saw Dershowitz on the A train? Kunstler was not
only far better known, but he was far better liked- even by many
of his enemies. In person, he was brilliantly charming. You may
have heard people talk about Dershowitz's appellate skill, but
have you ever heard anybody talk about liking him or finding
him charming?
You could tell how much Kunstler's fame
gnawed at Dershowitz by how frequently he brought it up in interviews
or talk shows when Kunstler wasn't even at issue. Someone would
be interviewing him about von Bulow or O.J. Simpson, cases that
Kunstler had nothing to do with, and all of a sudden there was
Dershowitz making some comparison in which Kunstler was the bad
side.
Greater fame wasn't the only thing which
Dershowitz could not forgive. There was also Israel, a subject
on which the two men couldn't have been further apart. Dershowitz
can rationalize anything Israel did to anyone anywhere any time;
Kunstler was always faulting Israel for not living up to what
he thought was its promise. Kunstler even defended accused terrorists
and the man they said murdered Rabbi Meyer Kahane.
I assume that the everything-can-be-legitimized-if-god-is-on-your-side
thinking Dershowitz utilizes when Israel is at issue also undergirds
his current campaign to have torture legitimized as an American
interrogation technique. He's a good enough appellate lawyer
to know the illegitimacy of state-sponsored torture. The only
way his torture campaign makes sense is if you see that he's
left sense behind.
Sixty Minutes
Dershowitz has been touting torture as
a technique for interrogating terrorists for some time and in
a lot of places. He probably reached his largest audience in
the 60 Minutes segment aired September 22. The segment,
which was hosted by Mike Wallace, had several other speakers,
among them Kenneth Roth, executive director of Human Rights Watch,
and a retired one-eyed French general who tortured Algerians
years ago and thinks the US should do it now. But it was Dershowitz
who had most of the airtime.
We first see Dershowitz taking his book
Shouting Fire from a shelf, holding it so it faces then
camera, then carrying it to a student at a table and opening
it, as if he were going to read some inspiring text. The next
shot is a head and shoulders closeup and that's the shot they
use of him for the rest of the segment.
Dershowitz is a very physical speaker.
When he gets polemical, he jabs at his listener or audience with
one, sometimes two index fingers, and he punches individual words
out, almost shouting. His first statement on the program, for
example, went like this (with the words in capitals said far
louder than the words not in capitals):
If you got the ticking-bomb case, the
case of the terrorist who knew preCISE [begins poking with
one finger] ly WHERE and WHEN the BOMB would go off and it
was the only way of saving five hundred, a thousand lives, EVERY
[begins poking with two fingers] democratic society WOULD
HAVE and will use torture.
That may give you some idea of the style.
I won't try to imitate that any more. And I'll put it in more
readable type:
DERSHOWITZ: If you got the ticking-bomb
case, the case of the terrorist who knew precisely where and
when the bomb would go off and it was the only way of saving
five hundred, a thousand lives, every democratic society would
have and will use torture.
MIKE WALLACE: Just in a ticking bomb
case?
DERSHOWITZ: If anybody has any doubt
about that, imagine your own child being kidnapped, the kidnapper
being there, and mockingly telling you that the child has three
hours of oxygen left and refusing to tell you where the child
is buried. Is there anybody who wouldn't use torture to save
the life of his child? And if you would, isn't it a bit selfish
to say "It's okay to save my child's life but it's not okay
to save the life of a thousand strangers? That's the way people
will think about it.
So if you oppose torture you're selfish?
The analogy turns the basic principle of criminal law topsy-turvy.
The purpose of criminal law is to remove from the individual
the need to and right of avenging criminal injury; the state,
which is presumably objective and fair, takes on those tasks.
People who are injured by a criminal may want to reciprocate
in kind, but in civilized society that is not permitted. The
reasons are very simple: how can society be sure that the violent
action you take to avenge violent action will be appropriate,
that it will even be delivered to the right person? Civilized
society substitutes the notion of justice for the obligation
of revenge, the rule of law for the rule of personal power. Of
course someone knowing that Dershowitz's mocking kidnapper knew
the secret that would save a child's life would want to extract
that secret by whatever means. But that is not the same as policemen
torturing people who may or may not know something they want
to know.
WALLACE: And that is how, Dershowitz
says, some people have begun to think about terrorism suspects
in custody right now. "The question is, would it be constitutional?
DERSHOWITZ: It's not against the Fifth
amendment if it's not admitted in a criminal case against the
defendant. But it may be in violation of due process. But what
is due process? Due process is the process you are due
under the circumstances of the case. The process that an alleged
terrorist who is planning to kill thousands of people may be
due is very different than the process that an ordinary criminal
may be due.
Dershowitz, a defense appeals lawyer,
is here advocating the administration of punishment before trial.
He's juxtaposing "an alleged terrorist" ("alleged"
means that someone has made an accusation that the person in
question has committed an act of terrorism or is thinking about
committing one) and "an ordinary criminal" (someone
who has been convicted). He's talking like a politician, not
a lawyer. This is sophistry of the worst kind. The murders of
civil rights workers by a Mississippi sheriff and his friends
weren't against the Fifth amendment either-but they were indeed
a violation of due process and they were also murder. Dershowitz
treats due process as if it's some evanescent talking point,
the legal equivalent of situational ethics. But it's not the
circumstances of the case that sets the terms of due process;
it's the law. And, thus far anyway, torture is against the law
in the United States of America. And notice how, as Dershowitz
warms to his argument, the numbers of potential deaths escalates:
what was "five hundred, a thousand" a moment ago is
now "thousands of people."
WALLACE: So if a liberal defense attorney
says it, what chance does a suspected terrorist have?
An excellent question, which Dershowitz
evades entirely. He ignores the potential abominations and instead
goes to amoral utilitarianism:
DERSHOWITZ: I want to bring this debate
to the forefront. It's going to happen. And If it's going to
happen we can't just close our eyes and pretend that we live
in a pure world.
WALLACE: And if it's going to happen
we might as well make it legal by having judges issue what he
calls "torture warrants," in rare cases.
DERSHOWITZ: Get a warrant. Justify in
front of a judge the fact that this is the only conceivable way
to save thousands of lives which are immanently endangered.
WALLACE: Torture warrants. I must say,
it sounds medieval.
DERSHOWITZ: Well, It sounds like a contradiction
in terms, because torture sounds illegal and a warrant sounds
legal. My suggestion is that we bring it into the legal system
so that we can control it. Rather than keeping it outside of
the legal system where it exists in a nether land of weak approval.
That's the way Dershowitz would deal
with violent abuse of civil and human rights by the police: since
it's going to happen, we should legalize it.
What's wrong with this logic is this:
bringing something into law only makes it legal; it does not
make it right. Hitler got the Reichstag to legitimize nearly
everything he did. The Nazis didn't just commit abominations
against those groups they loathed. They legislated those
abominations. The worst of what they did was perfectly legal.
The only things absent were morality, justice and decency.
Kenneth Roth, who was a former federal prosecutor before he became
executive director of Human Rights Watch, commented, "Alan
Dershowitz has been spending too much time on the lecture circuit.
He should go back to the classroom for a bit....A judge has no
right to allow something that the Constitution flatly prohibits
under any circumstances and that is the cruel, degrading treatment
involved in torture." Roth pointed out that the US is signatory
to anti-torture treaties. But Dershowitz would use illegal behavior
by government agencies in the past to justify ignoring all of
that:
DERSHOWITZ: If anybody has any doubt
that our CIA over time has taught people to torture, has encouraged
torture, has probably itself tortured in extreme cases, I have
a bridge to sell you in Brooklyn.
His rationale is entirely utilitarian:
DERSHOWITZ: I have little doubt that
torture has, on occasion, prevented the deaths of innocent people.
That's what makes this issue so complex.
WALLACE: And if a foreign country uses torture, excessive force,
to get information, that information can then be used in a US
court?
DERSHOWITZ: [grinning] Unresolved issue of Constitutional law.
If we had anything to do with it, it's clear it cannot be used
in an American court. But if serendipitously a silver platter
is presented to us on which there is a confession elicited by
another agency and if it's a reliable confession, probably it
could be used.
"Serendipitously" the way those
thugs of Henry II serendipitously murdered Thomas Becket in 1170?
WALLACE: Professor Dershowitz, had we
been having this conversation on September tenth, people would
have said "What in the dickens are those two fools talking
about."
DERSHOWITZ: Prior to September 11th I
used to give a hypothetical in my class, If an airplane loaded
with terrorists and civilians were flying toward-I used to use
the Empire State Building-would it be appropriate to shoot it
down? That was a debatable issue on September 10th. It was not
a debatable issue on September 12th. Things change. Experiences
change our conception of rights.
They very well may, but is that the way
the law should work? Should last week's or last year's atrocity
change our basic ideas of justice and decency and due process?
Should our fundamental ideas and principles be victim to the
whims of the most depraved and vicious? Is there nothing worth
holding on to? Is torture our only reasoned response?
The hot lead
enema
Alan Dershowitz's situational take on
the utility of torture is not new. A good deal has been written
on the ethics, legality and efficacy of torture. What is surprising
is that someone who at one point in his career presented himself
as a civil rights lawyer and as recently as the September 22
60 Minutes broadcast allowed himself to be introduced
as one, is beating the drum for torture of police suspects on
the chance that such torture might deliver useful information.
You'd have thought that someone who really believed in the law
and in the U.S. Constitution would know that adopting the bad
guys' methods doesn't make you more efficient; it only makes
you one of the bad guys. As Bill Kunstler used to point out about
the First Amendment, you don't need it to protect Mother Teresa,
you need it to protect someone nobody agrees with or wants to
listen to. If you don't protect it for them, one of these days
it may very well be you they'll be silencing.
In the same 60 Minutes segment
in which Alan Dershowitz so eloquently endorsed torture, Mike
Wallace and an attorney talked about a terrorist who had been
tortured by police in the Philippines. The Philippine police
gave the information he provided to the FBI, who then used it
in a trial that ended with the man being given a life sentence
in a US penitentiary. Kenneth Roth pointed out that the same
man confessed in the same torture session to the Oklahoma City
bombing. And that, he said, is a key problem with torture: in
addition to being immoral and illegal, it's not very reliable.
Lenny Bruce had a routine about a man
who is brought to a room where he proclaims that he would never
betray his country. Then he says (I'm paraphrasing from memory),
"What are they doing to that guy over there? Why are they
putting that funnel in his ass? What are they doing with that
molten lead? They're pouring it in the funnel? The funnel
that's in his ass? They're pouring hot lead in his ass?
They're giving him a hot lead enema? Okay, I'll tell you
anything. I'll tell you about my mother. I'll make up secrets."
Questions that
remain
I have a whole bunch of questions I wish Mike Wallace had asked
Alan Dershowitz about his torture program. Here are a few of
them:
-What do you do when you get real masochist,
somebody like Jack Nicholson's character Wilbur Force in Roger
Corman's 1960 Little Shop of Horrors? How do you torture
effectively somebody who says "Thank you" and "Can
you do that one more time, only a little harder," after
every abominable thing you do?
-What if the one person who you think
knows the secret is a 12-year-old girl? How much torture is appropriate
for a 12-year-old girl who might possibly know something really
bad and won't tell? Or who keeps saying, no matter what you do
to her, "I don't know what you're talking about?"
-Is the torture any less legitimate if
the torturer loves his work, particularly when it's certain kinds
of people, like 12-year-old girls who won't fess up?
-How much torture is appropriate before
you decide that maybe this person doesn't know anything?
-How much torture is appropriate before
you decide that the person is starting to make stuff up?
-How do you undo the harm you did when
you realize you tortured the wrong woman?
The witch's
mirror redux
I still sometimes imagine Dershowitz
walking up to that mirror, looking at where the moustache used
to be, and saying, "Mirror, mirror on the wall, who's the
best criminal lawyer of them all?"
And now the mirror says, "Putz!
You think 'cause Kunstler's dead you get to move up? You
campaign for sterilized needles under the fingernails and you
have the nerve to ask me questions like that? No wonder you titled
your autobiography Chutzpah. I work for lawyers, not torture
salesmen."
At which point the Mirror undoes itself:
the tain separates from the glass and Dershowitz stands there
looking into nothing at all. Nothing at all.
But that's only a fantasy. What happens
in real life is, 60 Minutes gives him 15 minutes to rationalize
and justify torture. He's come a long way since Bill Kunstler
died, Alan Dershowitz has. A long, long way.
A Final Word
About Dershowitz and Me
I should tell you that I've had one personal
experience of Alan Dershowitz. I don't think it's biased anything
I've written here (I've really restrained myself a lot),
but you ought to know about it so you can judge for yourself.
While checking the page proofs of my
book Law and Disorder: Criminal Justice in America (Illinois,
1985), I did something I've ever since been ashamed of: I deleted
an adjective because I was sure Alan Dershowitz would review
the book in the Times (he was reviewing a lot of books in the
Times in those days) and I knew the adjective would piss him
off. I was sure he'd like the rest the book and I decided that
my pleasure with the adjective just wasn't worth the hostility
I knew it would engender, no matter how true and appropriate
it was. That's why I'm still ashamed of my decision to delete
it: the decision to cut was entirely self-serving. The adjective
was about Dershowitz's autobiography, which I characterized as
"Jack Hornerish," which it is.
Dershowitz trashed the book anyway, mainly
because in my chapter on sentencing I characterized a recent
book on sentencing as naive and I specified why. Just about all
of his review focused on what was wrong with my sentencing chapter.
Dershowitz never once mentioned that he was co-author of the
book on sentencing I'd critiqued. He also faulted me for not
having said anything nice about the American criminal justice
system. That part was true: I hadn't said anything nice about
it. I don't know why that was a fault, though.
My friend Leslie Fiedler told me to ignore
it. I would have taken Leslie's advice if Dershowitz had trashed
the book because he didn't like it, but his trashing it because
I'd critiqued a study he was part of and his keeping that secret-I
thought that demanded notice.
So I wrote a long letter to the Times
saying what was wrong with his review and noting his peculiar
ethics. The Times had no problem with the letter's length or
what I said about Dershowitz's ethics, but they were concerned
over the source of the quotation "If you can't say something
nice don't say anything at all," which I had ascribed to
Thumper's mother. The Times editor asked where I'd gotten the
quotation. "Bambi," I said. The editor called Disney
Studios to check, then called to tell me that the line was said
by Thumper's father. That, I said, was absurd, since Thumper's
mother was a widow. I told him that Thumper's mother would say,
"As your father used to say," and then she'd quote
the line. The editor asked if I would accept a change to "As
Thumper's mother said, quoting Thumper's father, 'Don't...'"
I said I would accept that, whereupon he said they'd print my
letter without any other changes, which they did.
A few days after it was published, the
editor called to say they'd received a reply to my letter from
Dershowitz, which they'd like me to deal with like a gentleman.
He read me the letter, which was, as I remember, mostly Dershowitz
praising Dershowitz. I asked the editor what he meant by "deal
with [it] like a gentleman." He said that meant they would
publish Dershowitz's response and I would let the matter lie
there.
"I don't get to respond?" I
asked.
"No," he said.
"Fuck you," I said. "I
ain't no gentleman. Your boy trashed my book out of personal
pique and you want to give him a second shot at me and I'm supposed
to stand still for it?"
"Professor Jackson!" he said
the way you tell a student who is way out of line to take his
seat. "You're our boy too."
"How can you say I'm your boy when
you published that trash about my book?"
"We did choose to review your book
in the New York Times Book Review, didn't we?"
There was no gainsaying that, but it
ended with me not being a gentleman anyway. I said if they published
Dershowitz's letter they owed me a chance to reply. He said they
couldn't do that. I said, "Fine. But if you publish his
letter, you've got to publish my response to it." They didn't
publish Dershowitz's letter. After that, I don't remember seeing
any reviews by him there for several years, though I don't know
if that was them punishing him or him punishing them.
Because of his review of my book in the
Times and my published response in the Times and the subsequent
telephone foolishness, I never commented publicly on any of his
excesses or reviewed any of his books, not even his Jack Hornerish
O.J. Simpson book, which he had out before any of the other O.J.
attorneys, as I recall. It was a book that fairly cried out for
critical attention, but I let it go because I didn't want to
seem like I was getting even for what he'd done back in 1985
in the NY Times Book Review.
It's 17 years now, and I think the statute
of limitations has passed.
Hence this commentary on Alan Dershowitz's astonishing advocacy
of torture in 21st century America.
Bruce Jackson
is SUNY Distinguished Professor and Samuel P.
Capen Professor of American Culture at University of Buffalo.
He edits Buffalo Report.
His email address is bjackson@buffalo.edu.
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