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Alan Dershowitz's Sinister Scheme: Paradigm? What Paradigm?

by TIM WILKINSON Friday, Sep. 15, 2006 at 4:25 PM

Dershowitz's claim that civil liberties require new government powers is eye-catching and remarkable for its initial appearance of absurdity. But tiresomely enough, he never resolves the apparent absurdity. There is no reconciliation of civil liberties with the kind of measures Dershowitz proposes. We can accept Dershowitz's defence of freedom, or his advocacy of new and rather sinister government powers. But we cannot accept both. One of these angles is there for appearance, one for content. It does not take much analysis to work out which is which.

Alan Dershowitz's Sinister Scheme

Paradigm? What Paradigm?


Alan Dershowitz, like the Neo-cons (they who whisper into Mr Bush's earpiece) is a Hawk, through and through. In the US, this macho epithet commands great enthusiasm. But to the audience on this side of the Atlantic, this self-identification with a creature dependent on constant killing for its survival is as worrying as it is apt.

No politician could posture in military garb or claim to act on God's instructions over here. Blair has come close to doing the latter, and will very soon be banished to the US lecture circuit, leaving behind all those ingrates who--in the words of Home Secretary John Reid--"don't get it". As Reid and Blair model their Imperial American robes, we see only two power-hungry men, nude and deluded--and soon to be superseded. We don't "get it", and we are not afraid to say so. When Blair growls, like some gravel-throated Hollywood voice-over, "Make no mistake--the rules of the game have changed", we are unsure whether to be amused or repelled by his facile posturing.

In Britain the Premier is not viewed as the embodiment of the country--to question the man is not necessarily to defame the office. News coverage is less tightly controlled. The climate here is, on the whole, less trusting of authority, less deferential and less given to unthinking patriotism. In Europe, 9-11 (or should that be 11-9?) was regarded as a major catastrophe but did not leave the population stunned and traumatised, as it did in the US. So when Mr Dershowitz dips his febrile fingers into the chilly pool of British scepticism, he is hoping both to test the waters and, gradually, to warm them.

In a recent cover story article published in the British political weekly the Spectator (2nd September 2006) Dershowitz calls for a New Paradigm in our approach to civil liberties. His message is that the "old" model of freedom under law is unworkable. The "relatively new phenomenon of mass-casualty suicide terrorism", we are told, demands a new approach.

But this does not ring true to British ears. Our response to three decades of IRA mass-casualty attacks was a phlegmatic disdain for the killers, combined, crucially if belatedly, with a willingness to address genuine injustice through negotiation. Blair would no doubt have claimed that we faced an irrational death cult driven by a twisted form of Catholicism and motivated only by an unreasoned hatred of our freedoms. But we are well aware that terrorism is a tool intended ultimately to influence public opinion and policy. We know just as well that the strategy aims to instil a degree of fear disproportionate to the actual increase in risk of harm. Even the well-confirmed risk imposed by IRA bombs was dwarfed by the ambient risk we face daily from unscary sources like accidents, disease and Ordinary Decent Criminals. Terrorists achieve this leveraging of low-level risk by their graphic and arresting means of death-dealing. It is our duty to retain a sense of perspective and overcome the temptation to panicky and ultimately counterproductive over-dramatisation. That means resisting the hysterical rhetoric bandied about by politicians irrevocably committed to the increasingly surreal Neo-Con view of the world.

Terrorism is terrorism. The attacks of 9/11 were eye-catching, and the casualties numerous--increased by unpredictable failures of both the rescue mission and the towers' steel frames. But there is no difference in kind between this attack and all the countless other terrorist attacks that Europe has known throughout history. We have seen it all before, and we are not impressed by the American overreaction. We are still less impressed by Blair's connivance in the so-called War on Terror--apparently motivated by his infatuation with the big boys in the White House and Pentagon. That's why in order to persuade 22% of the electorate to vote for him in the 2005 British general election, Blair had to take the bizarre step of pre-announcing his resignation.

So terrorism is not new. But Dershowitz has another newsflash from the Harvard front line: "waiting until the harm occurs and then punishing the harm-doer to deter others cannot work with the suicide terrorist who welcomes the ultimate punishment", he reports. Those with relevant experience remember that the IRA were not deterred by prison, and sought with fanatical determination a lingering death by hunger strike. Anti-apartheid paramilitaries in South Africa were not deterred by the unspeakable tortures they faced. This is no new paradigm. There is nothing new in a failure of deterrence, which explains why the preventive function of security services has always been paramount. English law has always included inchoate offences, so that prevention of harm need not preclude charges of attempt and conspiracy.

The only novel element in adopting a preventive approach would be a reversal of the recent negligent--or worse--failures to maintain basic security precautions. The collapse of the three World Trade Centre towers was, even on the account of the feeble 9/11 commission, possible only due to an incredible failure of routine security and intelligence functions. The attack on the Pentagon involved an incredible degree of apparent incompetence. The '7/7' bombings in London have, oddly one might think, not yet been properly investigated. We know however that there were warnings of such an attack, and that recent efforts of the Joint Intelligence Committee and British police have been at best shamefully incompetent. The unprecedented publicity accorded to details of the supposed aircraft plot in Britain may yet undermine an effective prosecution (assuming that a case could be built at all). If so, the blame will no doubt be laid on the judiciary (that hotbed of reckless anti-authoritarianism) or of course, our ancient liberties (which we are repeatedly assured fail in the imaginary task of balancing the rights of "victim" and "criminal"). But the truth is that the authorities have not made use of the tools they have. Prevention is nothing new, and its failure has not been due to insufficient power, but to insufficient competence. Calls for new powers under these circumstances are quite astonishing. It is as if a gamekeeper were to ignore a fox attack, unload his shotgun into a grouse or two and then announce that what he really needs to do the job properly is a rocket launcher and some dynamite.

So when our self-appointed expert opines that "a new paradigm, relying more on anticipatory and preventive measures, must be considered", we can only assume that it is anticipation rather than prevention that he has in mind as the new ingredient. The recent spate of highly-publicised alerts and arrests in Britain and the bizarre arrival of tanks at Heathrow perhaps typify the anticipatory approach. Bush's dubious claim to have thwarted ten Al Quaeda plots since 9/11 is based on 'anticipatory' action. Expert opinion has suggested that what the US trumpet as a foiled plot is often no more than chatter.

One is reminded of the old joke, in which a psychiatric patient, anticipating the arrival of elephants, hangs bacon from his rhododendrons as a preventive measure.

"But there are no Elephants in Surrey."

"Yes, effective isn't it?"

Given his distorted view of the world, the logic is impeccable. To those with some grip on reality, this behaviour is of course ludicrous. Even British police have now started to describe their Muslim-corralling operations as 'intelligence-led'. One suspects that though they cannot take a chance by ignoring the information they are fed, they want their scepticism on the record.

Dershowitz appears to appreciate the risks of such an approach when he adds that anticipatory-preventive measures "carry with them considerable dangers to civil liberties." His concern for freedom cannot, though, be taken at face value. Whatever Dershowitz's agenda may be, his article serves to lay the groundwork for a further assault by the state on individual freedom. That governments should have more power over people is the core message that underlies his call to abandon the 'old model'. But in Europe one cannot define something into extinction by calling it old. That our freedoms are old--indeed ancient--is a matter for pride, not for embarrassment at our unfashionability. We need a little more than to be told that the presumption of innocence is 'soooo last millennium'. We have well-founded doubts about the bona fides and the competence of the regime that is trying to gain yet more power over us, as well as possible successor regimes. And critical British eyes will raise a brow at the worryingly diluted aim of preserving only the "feel of freedom" for "most citizens" except those who fit the "terrorist profile".

In recognition of these obvious worries, Dershowitz has (and with insulting incompetence) inserted sweeteners into his Draconian polemic. These cut-and-paste concessions hope to deflect criticism by paying lip-service to the old-fashioned concerns of civilised Europe. But the superficial appearance of balance is belied by the utter incongruity of these hastily inserted passages.

So when Dershowitz solemnly asserts that "democracies must adhere to their high moral and legal standards in combating terrorism", we should note that this innocuous statement is immediately equated with the provocative Israeli claim that democracies have to fight terrorism "with one hand tied behind their backs". One wonders which hand was tied during the month-long bombardment of Lebanon. Dershowitz then illustrates the 'both hands' approach by reference to the atrocious Nazi and Stalinist regimes--so apparently establishing his humane credentials. But these horrifying regimes are not used to frame a 'slippery slope' argument, or to point out that lesser oppression is nonetheless oppression. The Hitler/Stalin 'paradigm' is instead praised with faint damnation: "no democracy", we are helpfully informed, "could be, or should be, willing to employ such tyrannical methods." So now the range of potential 'new paradigms' is clearly revealed. At one extreme we have the dubiously 'high moral standards' of the Israeli military, and at the other, the most comprehensively nightmarish brutality ever known. Somewhere in between, we may conclude, lies the New Paradigm. The only certainty seems to be that the high moral and legal standards currently required by international law are, in Dershowitz's learned opinion, too stringent!

After this supposed defence of individual freedom, Dershowitz moves on to the title-conceit of his sinister little essay. He argues that public opinion is the driving force behind demands for immoral or illegal measures in the fight against terrorism. Aside from the fact that this is like recommending more racism to forestall the British National Party vote, the claim is simply untrue. The Bush administration has consistently manipulated public opinion to drum up support for its agenda. To get the public 'onside' for their latest invasion of Iraq, the neo-cons instilled in their Fox-ridden populace a hazy perception of some unspecified link between fundamentalist terrorists and Saddam's regime. On this side of the Atlantic, Blair realised that a sharper focus would be demanded--one which would reveal the ludicrousness of Bush's insinuations. The official picture of Iraqi support for ardently religious terrorists with ill-defined aims and spectacularly provocative methods was incompatible with the known reality of a Western, secular Saddam whose main interests were personal enrichment, retention of domestic power, and avoiding another disastrous war. So instead we had the myth of WMD, which concept is itself a typically Blairite distortion, deliberately conflating as it did short-range chemical weapons, as sold to Saddam by the USA, and the much more scary but obviously absent nuclear weapons.

Dershowitz illustrates the theory of public pressure with the least contentious example of extreme (presumably immoral or illegal) "preventive" measures: the attack on Afghanistan. But this was not a reluctant response to spontaneous public demands, either. The public were told that Bin Laden was holed up there, and quite reasonably expected that something would be done. Certainly going into Iraq while ignoring Afghanistan would under the circumstances have been highly unpopular, but this is hardly an example of the public baying for extreme measures. The half-hearted and massively delayed attack on Afghanistan was, if anything, an under reaction to the reasonable expectation that Bin Laden be hunted down. How the proposed oil pipeline deal with the Taliban influenced the US reaction is unclear. It is also interesting that the FBI is unwilling to assert a link between 9/11 and Bin Laden. But that is part of another story. Very much part of this story, however, is that discussion of a military invasion in pursuit of a known armed aggressor does not appear to have very much to do with the issue of civil liberties.

In any case the myth of spontaneous public demands for loss of civil liberties is somewhat academic. In another ill-advised concession to his recalcitrantly realist European audience, Dershowitz undermines his argument by admitting that only if "mass-casualty terrorism" became "rampant" would such irresistible public pressure arise. So we may take it that until such an apocalyptic fantasy becomes reality, his central argument is entirely irrelevant.

Let's pretend that we haven't noticed this predictable and comprehensive failure to maintain the assault on freedom while also making room for the facts. How are we to change our methods so as to deal more effectively with the supposedly implacable onslaught of mass-casualty terrorism? Before addressing this question, Dershowitz treats us to another display of his freedom-loving credentials. A whole paragraph is dedicated to known and possible abuses of power by Western governments past and present. Governments are not in general to be trusted with great power or discretion over us, we are told. The issue seems settled. But a short transitional paragraph continues: "if we trusted our governments, there could be reasonable compromises that would allow our intelligence agencies to get the bad guys without violating the privacy of the good guys". The argument then continues unabated. All doubt evaporates, as though the eloquent recitation of government excesses had never been. Another hastily-inserted concession to the staid old Europeans with their quaintly idealistic standards of behaviour.

Having been softened up by this insincere invective, we can forget our doubts and proceed to consider Dershowitz's first scheme: hi-tech intercepts. This is a programme of monitoring all communications for key words and phrases, so as to detect 'suspicious' activity. There is mention of records being destroyed--unless containing 'suspicious' material--but still the proposals have to be neutered with the qualification "If we trusted our intelligence agencies the way we trust our doctors". Of course, we all know that we trust our doctors only with the information we choose to give them--and that is generally uninteresting stuff about our feet or headaches. We all know that doctors have a professional duty of confidentiality and can be held accountable. Dershowitz, recognising that his proposal is extremely authoritarian, pre-empts such criticism by agreeing that we rightly don't trust spies as much as we do doctors. This Dershowitz fellow really seems to care about our freedom, we think. He continues: "Distrust and scepticism are healthy attributes of a democracy, but ..." One is reminded of the conversational preface "I'm not a racist, but ...".

But what? Well, the apparently the system would contain "safeguards". It would work like this: it would search for suspicious words and phrases. When they were found, court authorisation would be obtained ("within minutes", or--note--possibly after the fact) to read the whole message. The conversations recorded would be destroyed--unless they contained suspicious material. Of course all communications intercepted in this way are prima facie suspicious by the criteria of the selection process! Again we are reminded that Dershowitz realises this would only be acceptable in an 'ideal world'. He is quite right--only in an ideal world, for example, could court authorisation be available "in minutes"--unless of course the court is expected merely to rubber-stamp the hi-tech selection process. In any case, it's hard to see what extra information would be available to assist the court in making an informed ruling.

The next idea concerns profiling--that is, treating certain classes of person as automatically suspect. Dershowitz, brandishing his bogus freedom-loving credentials, points out that "the main concern is religious, racial and ethnic discrimination". His solution is to combine such information with other data, such as history of suspicious transactions and association with terrorist groups. But these things constitute grounds for suspicion in their own right already. If there are independent grounds of suspicion, why bring race into it at all? By all means watch out for people behaving suspiciously. But don't confuse that with blanket suspicion applied to a whole group of people. Again, in accommodating a concern for civil liberties, Dershowitz appears entirely to undermine his own argument.

It seems that even Dershowitz could not manage plausibly to add libertarian window-dressing to his third display of naked authoritarianism. He proposes the introduction of speculative interrogation--carried out to produce "preventive intelligence". Apart from all the obvious Kafkaesque horrors of such interrogation, and what we know about Western outsourcing of the more distasteful tasks involved, it would be likely to involve imprisonment for long enough to lose one's livelihood.

At last, we see an undiluted statement of what Dershowitz thinks we should do, one not compromised by respect for his readers' sensibilities. Dershowitz declaims: "In a criminal case, we live by the principle that it is better for ten guilty defendants to go free than for even one innocent to be convicted." Of course, there is no such legal principle. How could there be? He continues: "The opposite is true in preventive intelligence. It is better for ten false leads to be followed than for even one true lead to be missed."

We already know that one does not have to be able to prove someone guilty beyond reasonable doubt before being permitted to question them. Of course leads should be followed up. Taking ordinary witness statements or checking a licence plate has no significant ill-effects, except perhaps a burden on investigative resources. But subjecting a person to prolonged imprisonment and interrogation is a rather different matter. This has serious consequences, and cannot be justified on the basis of a hunch or some automatic profiling system. Dershowitz envisages that ten out of eleven such ordeals be undergone by those who have no useful information. Of course there's no reason to suppose any particular system would result in such a ratio. If 10:1, why not 100:1? The point is that state powers must be governed by rules, not statistics.

A more concrete, and even more disturbing, aspect of Dershowitz's proposal is the possibility of "different rules for conducting criminal and preventive interrogations". Now rules governing ordinary criminal questioning are there on two main grounds: human decency and avoidance of inherently unreliable methods. Which of these are to be sacrificed on the altar of the War on Terror? Dershowitz does not elaborate. Perhaps he judges that we are not yet ready for to be confronted with the implications of this vague and comfortingly abstract new doctrine.

So Dershowitz has presented us with his proposals, despite being hampered at every turn by his own apparent desire to defend human rights. Even as he argues that one idea will never work in the real world, he presses ahead with the next step in his argument. He recites warnings of government abuse in one paragraph, only to present his next proposal on the basis that government surveillance is as innocuous as a doctor's question about one's digestive system. By his own admission, all his plans are designed for an imaginary world, one in which we trust our security services. Shouldn't that be: in which our security services are trustworthy? Is Dershowitz addressing us or our rulers? Certainly his use of the well-worn expedient of blaming public opinion suggests the latter.

Dershowitz's claim that civil liberties require new government powers is eye-catching and remarkable for its initial appearance of absurdity. But tiresomely enough, he never resolves the apparent absurdity. There is no reconciliation of civil liberties with the kind of measures Dershowitz proposes. We can accept Dershowitz's defence of freedom, or his advocacy of new and rather sinister government powers. But we cannot accept both. One of these angles is there for appearance, one for content. It does not take much analysis to work out which is which.

Tim Wilkinson is a writer and political philosopher. He can be reached at .

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Nah. Dumbowitz isn't bright enough to be 'sinister' Not a Dhimmi No More! Friday, Sep. 15, 2006 at 4:28 PM

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