Alan Dershowitz, Professor of Torture

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 . 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 CounterPunch Special Report: 9/11 One Year After

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