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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.
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 email@example.com.