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CounterPunch
September
10, 2002
The Professor
of Torture
Alan Dershowitz's Mad World
by Will Youmans
Alan Dershowitz is the kind of guy who never lets
the facts get in the way of a good argument.
The Harvard Law School professor and
part-time voracious defender of Israel devoted his celebrity
legal mind to combating terrorism. His partisan and fundamental
support for Israel, however, discredits his own views on terrorism.
He outraged supporters of civil liberties
and due process after September 11, 2001 for suggesting that
torture should be legally sanctioned and warranted by the courts--an
argument he forwards in his new book 'Why Terrorism Works'. His
shining model for a legalized system of torture is Israel, of
course. In a talk he gave to the World Affairs Council on September
3rd, 2002, he described Israel's procedure as invoked judiciously
and non-lethal in technique. He was unconcerned with who was
being tortured and for what. What mattered to him was strictly
technical in nature, like a good lawyer.
In a 1999 essay in 'The Nation,' Alexander
Cockburn quoted a 15 year-old torture victim's description of
his experience after being arrested for throwing stones:
"They handcuffed and beat me during
the journey to Fara'a [a military prison in Nablus]. Once we
arrived, they took me to a 'doctor' for a 'checkup.' I found
out later that this 'checkup' is to locate any physical weakness
to concentrate on during torture. They paid particular attention
to my leg, which was once injured and was still sensitive. Before
they began interrogation, they asked me if I was ready to confess.
They then hanged me by my wrists, naked, outside in the cold,
and gave me hot and cold showers alternatively. A hood covered
in manure was put over my head."
A September 1999 Supreme Court ruling
scaled back Israel's routine use of torture according to B'tselem,
and Israeli human rights group. However, there are still numerous
reports of use by Israeli occupation police. Many of the victims
are minors.
It is a truism that armies occupying
populaces against their will rely on systematic violence to keep
them in their place. Every historical example of military occupation
involves many of the same practices, which by any useful definition
constitutes terrorism. Yet, according to Dershowitz, we are supposed
to believe that Israel's use is enlightened enough to learn from?
How can Israel be a shining light given its systematic military
domination of an entire people? Is this something all states
should aspire too?
The fundamental failure of Dershowitz
is that he advocates fighting terrorism with terrorism. A Newtonian
principle applies to the physics of violence: every act of violence
by one party will be answered with an opposite and equal one.
He dismisses the notion that state counter-terrorism practices
are a form of terrorism since they are aimed at fighting it.
So when Israel kills eleven innocent bystanders in an effort
to kill one Hamas official, it is not terrorism. Neither are
the checkpoints, closures, curfews, arbitrary arrests, and gun
shots at children or media. In a talk he gave, he praised the
behavior of Israeli military in Jenin, and completely ignored
what it calls "neighbor practice"--using Palestinian
civilians as human shields on their searches of houses.
The cover of his book features pictures
of Osama bin Laden and Yasser Arafat--the two main faces of terrorism
in the Dershowitzian world. Noticeably absent from the cover
are the most prominent and successful terrorists, those who really
made it work by using the cover of legitimacy or by achieving
governmental stature, which obfuscates their use of terror. So,
there is no picture of Menachem Begin, the former Israeli Prime
Minister who was once wanted by the British mandate authorities
for terrorism, or Henry Kissinger, or the Shah of Iran, or the
countless other "world leaders" whose terrorism worked
so well that their extermination of so many opponents was met
with neglect, complicity, or even assistance. No wonder a 'Washington
Post' reviewer called his book "convoluted."
Dershowitz handles the question of state
versus non-state terrorism by ignoring the former. This important
divide is coming to a head in Israel's legally bizarre trial
of Palestinian leader Marwan Barghouti, who incidentally was
tortured numerous times according to <www.freebarghouti.org>.
He is being tried in a regular Israel court for terrorism and
murder. Since he committed none of the alleged acts directly,
the prosecution must rest on a theory of command responsibility,
that means under his authority and with his approval others carried
out acts of violence.
If he is found guilty, it will set a
clear precedence for the prosecution of Ariel Sharon, who as
an Israeli leader authorized attacks that have killed citizens.
I am not saying a prosecution team would go after Sharon, but
the contradiction would be too glaring to ignore.
That Israeli courts will struggle to
handle this legally formalistic hindrance is emblematic of how
Israeli law deals with the Palestinian "other." The
Palestinians in the West Bank, East Jerusalem and Gaza occupy
a strange legal space. They do not have the rights of citizens,
nor do they have the rights of occupied persons under international
law, yet they are subject to Israeli rule and pay taxes to Israel.
To make the distinction clear, within the Palestinian populations
are Jewish colonists who are granted full rights of citizenship
and are thus treated entirely different by Israel. This is clearly
an Apartheid structure.
Critics are charging that this whole
affair is political in nature, not purely legal. Nelson Mandela
drew an interesting parallel: "What is happening to Barghouti
is exactly the same as what happened to me. The government tried
to de-legitimize the African National Congress and its armed
struggle by putting me on trial."
Palestinians escape conventional legal
classification and are thus subject to legal contortion acts,
mysterious procedural innovations and new legal fictions--in
many ways a mirror to the evolution of American Indian law.
As a law professor, this should dumbfound
Dershowitz, but he no qualms about running with it. He is already
beginning to advocate a trial of Yasser Arafat in Israeli courts,
as his preferable choice among other options he deems legitimate,
such as the "exile of Arafatand even targeted assassination"
(Haaretz 9/2/02).
In March 2002, Dershowitz penned a piece
for the 'Jerusalem Post' that argued for the collective punishment
of Palestinian villages for acts of violence sponsored by Palestinian
individuals or groups. He proposed that any act of violence sponsored
by an individual Palestinian would result in Israel's destruction
of an entire pre-announced Palestinian village.
He also publicly stated that Nathan Lewin's
proposal that Israel execute the family members of suicide bombers
was "legitimate." Israeli currently began a policy
of expelling family members of suicide bombers from their villages.
Before, they merely demolished their homes.
These proposals define Dershowitz's inability
to put Palestinian rights of security on equal footing with Israel's.
Since he sees everything through a lens that prioritizes Israel's
security above all else, he cannot see the fundamental disparity
between populations within the legal system he praises. Israel's
Basic Law, its pseudo-constitution (because Israel lacks one)
is characterized by legal devices for securing the Jewish nature
of the state by the appropriation of "Absentee" property,
the homes of Palestinian refugees Israel disallowed from returning.
The international community tried to
address the effects of the fiasco it created with the partition
plan. For instance, Israel's membership into the United Nations
was conditioned on a just settlement of the refugee issue, which
until this day has no occurred. Numerous UN resolutions affirm
the rights of the refugees. His explanation for this: global
anti-Semitism.
Dershowitz dismisses international law
and bodies entirely. In the talk to the World Affairs Council,
he accused the United Nations Refugee Works Agency (UNRWA), the
main humanitarian services provider in refugee camps, of "complicity"
in terrorism for not cracking down on terrorists. He did not
expound of course. In his recent book, he even casts doubt on
the humanitarian plight of the Palestinians. In response to reports
of Palestinian "desperation" in the refugee camps,
he wrote "there are reasons to be skeptical of this claim."
Any singling out of Israel, he claims
is a hallmark of anti-Semitism. Israel should not be criticized
explicitly, when there are far worse countries. This of course
ignores the fact that it is America's closest ally, receives
the most US foreign aid and enjoys special tax incentives to
promote investment in Israel, it claims to be a democracy and
a "light of all nations," it created the oldest and
largest refugee population in the world, it continues the longest
running and most brutal military occupation in the world--these
rightfully subject it to a special scrutiny by activists here.
He emerged as a staunch opponent of the
national campaign for universities to divest from Israel. Dershowitz
told a journalist from the 'Financial Times' that he would commit
himself to the destruction of any university that divests from
Israel. Dissatisfied with mere demise, he would then "dance
on its grave."
Palestinian purveyors of violence look
no further than Israel itself to gauge the potential benefits
of terror. Israel was founded by violence. The British mandate
over Palestine came to a close largely as a result of Jewish
terrorist groups such as the Stern Gang and the Irgun, and the
bombing of the King David hotel. The same groups were responsible
for the massacre of hundreds in the Palestinian village of Deir
Yassin, which scared countless other into fleeing. Those who
fled were not allowed to return. Their homes were either razed
and planted over with trees or filled with Jewish newcomers to
Israel.
Dershowitz wants Israel's benefits from
terrorism to be solidified in Israel's current Apartheid regime,
but all terrorism after that by Palestinians is justly responded
to by collective punishment, assassination, and legalized torture.
That is why he can suggest a trial of Arafat, but not of Sharon,
whose use of violence has been much more extensive and damaging,
just from his 1982 Lebanese invasion alone.
Finally, a serious movement to confront
the gains of Israel's legacy of terrorism develops in the form
of the divestment campaign, and Dershowitz is opposing it. It
is a fundamental contradiction. By recognizing Israel's Apartheidesque
exclusively-Jewish claim to the land, which was won by violence,
he legitimizes the gains of terrorism by one particular group.
This is the clearest example of terrorism working.
Will Youmans
is a law student at UC-Berkeley. You can e-mail him at wyoumans@umich.edu
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