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June 2004 • Vol 4, No. 6 •

U.S. Politics

Dershowitz: Defender of the Lash and the Cattle Prod

By Mike Whitney

“The Geneva Conventions are so outdated and are written so broadly that they have become a sword used by terrorists to kill civilians, rather than a shield to protect civilians from terrorists. These international laws have become part of the problem, rather than part of the solution.”

This is the opening passage of Alan Dershowitz’s attack on the Geneva Conventions. It sets the tone for a polemic that savages our continued commitment to the humane treatment of prisoners and endorses “varying forms of rough interrogation.”

The essay, “The Rules of War Enable Terror,” employs the Harvard professor’s rhetorical skills to undermine the legal barriers that restrict the use of torture. It is an assault on the fundamental principles of human decency.

This is no exaggeration; Dershowitz is quite forceful in articulating his belief that treating people with dignity and humanity is anathema to the goals of the war on terror.

“The time has come to revisit the laws of war and to make them relevant to new realities,” Dershowitz insists.

But what changes in the law does Dershowitz have in mind?

“The treaties against all forms of torture must begin to recognize differences in degree among varying forms of rough interrogation, ranging from trickery and humiliation, on the one hand, to lethal torture on the other. They must also recognize that any country faced with a ticking-time-bomb terrorist would resort to some forms of interrogation that are today prohibited by the treaty.”

Ah, yes, the “ticking-time-bomb” theory once again; that “all purpose” pretext for excusing any imaginable form of cruelty. Dershowitz invokes the most extreme scenario and uses it as the rationale for overturning the laws that protect the individual.

The “ticking-time-bomb” theory has always served as a blanket justification for torture. It is the one example that convinces ordinary people that security should take precedence over human rights. When it is pointed out, however, that the victims of torture are no more than “suspects,’ (without positive proof of their culpability) attitudes quickly change.

Dershowitz also fails to mention that in countries where torture is permitted, its use quickly spreads to minor criminals who pose no real threat to society at large.

He knows as well as anyone, that once society entrusts the state with the power to use “physically coercive” measures, those measures are likely to be implemented well beyond their original mandate. It is a surefire prescription for widespread physical abuse against people who have no legal recourse.

We should consider the deleterious affects of abandoning our core principles for short term gain. Torture has an inherently corrupting influence on society. It deprives man of his humanity and elevates the state over the individual. The victims are stripped of their rights and left at the mercy of the state.

In Dershowitz’s world, these constitutional protections are not only provisional, but subordinate to national security; the loftiest goal of all. It is a breathtaking departure from our professed commitment to human rights, and particularly surprising coming from an “officer of the court.”

But, it is not merely torture that Dershowitz advocates, but murder; “premeditated,” state sponsored murder.

“Democracies must be legally empowered to attack terrorists who hide among civilians, so long as proportional force is employed. Civilians who are killed while being used as human shields by terrorists must be deemed the victims of the terrorists who have chosen to hide among them, rather than those of the democracies who may have fired the fatal shot.”

There are enormous gaps in Dershowitz’s reasoning, the most prominent of which is his careless manner of excusing the killing of innocent civilians to achieve the objectives of the state. What Dershowitz blithely refers to as “proportional force” is in reality the “scattershot” justice practiced by Israel in their targeted assassination campaign. This is a policy that is so detestable, so utterly racist (it is impossible to imagine that Israel would ever fire missals into populated areas in Tel Aviv to dispatch an “alleged” terrorist; only in the enclaves of the “untermenschen”) that it eschews any conceivable moral justification.

It is murder, plain and simple.

It’s absurd for Dershowitz to suggest that “democracies must be legally empowered” to carry out these crimes. Assassination is NEVER the instrument of democracy, but tyranny. There is no consensus on assassination; no public mandate; it is the usurping of unauthorized power and a violation of the government’s “sworn” commitment to operate within the law.

Again, Dershowitz demonstrates his frail grasp of the primary purpose of government. Governments are established as the guarantors of life and liberty; it is not within their authority to perpetrate illegal attacks on civilians, let alone to kill them.

The “extra judicial” killing of civilians is the highest crime government can commit. It is the complete breakdown of the legal firewall that protects the individual from the vagaries of state power.

It represents a total disregard for man’s most fundamental right; the right to life. When the state claims the power to kill its own citizens or foreign nationals, the rule of law ceases to be.

In this respect, Dershowitz’s defense of “targeted assassination” can be taken as an attack on the law itself. It implies that senior members of government can ignore “whatever” legal restraints they choose as long as their activities can be construed as fighting terrorism. The law can be conveniently dismissed when it does not coincide with the objectives of the people in charge.

Ironically, Dershowitz’s belief, that it is acceptable to kill civilians in the pursuit of terrorists, is a validation of terrorism.

What difference does motive make?

It is the willingness to sacrifice innocent people for one’s own objectives that is, by definition, terrorism

Dershowitz’s essay ominously takes aim at those, “In the middle, who applaud the terrorism, encourage it, but do not actively facilitate it. At the guilty end are those who help finance it, who make martyrs of the suicide bombers, who help the terrorists hide among them, and who fail to report imminent attacks of which they are aware. The law should recognize this continuum in dealing with those who are complicit, to some degree, in terrorism.”

Those who “applaud terrorism, but do not actively facilitate it?”

Those who are “complicit to some degree?” Does Dershowitz mean those who understand the roots of terror?

Does he mean those who speak of the “legitimate grievances” of oppressed people, some of whom fill the ranks of terrorist groups?

Does he mean those who oppose the Bush war on terror or who write for leftist web sites?

Dershowitz’s world view appears to merge quite nicely with that of John Ashcroft; America’s menace to civil liberties. Both of them seem to prefer flexible definitions of “terrorism” so that they can include anyone who might be “perceived” as a security risk. They favor a net that is large enough to entrap any possible threat, real or imagined.

Isn’t this the precedent that led to the illegal detention of 1,100 Muslims following 9-11? (None of whom were ever connected to any terrorist group?)

Wasn’t this the same logic that put thousands of innocent Iraqis behind bars in Abu Ghraib even though (according to the Red Cross) 70% to 90% of them were simply rounded up in random sweeps?

Dershowitz’s comments are vague but troubling. They suggest that our due process rights are too generous and should be reworked to accommodate security concerns. In his mind, the standard has shifted from “innocent until proven guilty” to “complicit to some degree.” (A disturbing trend that we see reflected in the behavior of the Justice Department.)

Dershowitz’s closing thoughts are revealing;

“The old black-and-white distinctions must be replaced by new categories, rules and approaches that strike the proper balance between preserving human rights and preventing human wrongs. For the law to work, it must be realistic and it must adapt to changing needs.”

What Dershowitz is suggesting is that we toss out the cumbersome “constitutional” system (“adapt to changing needs”) and morph into Fortress America, the United States of Paranoia; a country that is no longer guided by institutions and principles, but by fear and repression.

Maybe there was a time when the issues of torture and assassination could be lightheartedly debated in the insulated confines of a college classroom, but that time has passed. We are reminded almost daily, with photos and stories from Abu Ghraib, of the horrors that originate from the flawed reasoning of men like Dershowitz.

When we pick up the newspaper and see that another missal attack (“targeted assassination”) has taken place in Gaza or Jenin, we are seeing the application of Dershowitz’s fetid logic.

How many innocent bystanders were killed this time in the name of fighting terrorism?

Similarly, when we read of the many abuses and humiliations at Abu Ghraib, we are observing the outcome of this flawed rationale.

In Dershowitz perspective, violations of human dignity are acceptable as long as the ultimate purpose is worthwhile. “The end justifies the means.”

But this reasoning does not account for our long held belief that man is an end in himself, and that his intrinsic value provides him with certain “inalienable” rights.

Dershowitz’s views are a dramatic departure from these basic convictions.

Dershowitz’s apology for torture is not a superficial disagreement on the fine points of the U.S. judicial system; it is a full blown assault on the foundational principles of American society.

Democracy and torture are entirely incompatible; we only need a glimpse of the photos from Abu Ghraib to fully grasp that.

There is a yawning chasm between “free societies” and the “national security state.” It is the latter that emerges according to Dershowitz’s recommendations.

Torture is a dramatic expansion of state power and sets us firmly on the path of unchecked government authority. It abandons much of what is admirable about American justice and our commitment to the rights of man.

It is a detour we don’t need to take.

CounterPunch, June 9,2004





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