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Alan Dershowitz on Whether to Prosecute Executive Branch Criminals

By       Message Lawrence Velvel       (Page 1 of 3 pages)     Permalink

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Over the years this writer has occasionally made comments relating to Alan Dershowitz. As said before, one's first conception of him was encapsulated in the joke that the most dangerous place to be in the entire world was between Dershowitz and a television camera. Subsequently, after seeing him on television debates, I became convinced -- and still am -- that Dershowitz is one of the brilliant legal minds of our generation.

From time to time, people would send me emails asking me to criticize Dershowitz, and/or assailing me for not criticizing him, because of his conduct in the Finkelstein matter and because, it is claimed, he plagiarized in a book on Israel. I never wrote about those things because I never knew enough about them, and still don't.

Now Dershowitz has written on a subject about which I am reasonably knowledgeable (and has spoken on it in a debate). Genius though he may be, I disagree thoroughly with what he wrote and, therefore, shall discuss his views -- including the way he has expressed them in writing and orally.

* * * * * *

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On September 13th and 14th a conference was held in Andover to discuss crimes committed by the Bush Administration in its war on terror and to lay plans to try to do something about it. The plans include efforts to try to obtain prosecutions against legally culpable individuals like Bush, Cheney, Addington, Yoo and other high level criminals. One of the panelists at the conference was the rather eminent British law professor, lawyer and author Philippe Sands, of University College, London. Sands has written a most pertinent book, called The Torture Team, about the criminal conduct of certain high level American officials. Two days after the conference, on September 16th, Sands was scheduled to, and did, debate Dershowitz on the torture question at the Harvard Law School. One day before the conference, on September 12th, Dershowitz published an op ed piece in the reactionary bible, The Wall Street Journal, saying that there should not be prosecutions. No doubt, the Journal, one of whose editorial writers has insisted to me that the U.S. does not commit torture, was only too happy to print Dershowitz's piece.

There were those who thought the date of Dershowitz's op ed -- one day before the conference and four days before his debate with Sands -- was, shall one say, odd, suspicious. Ostensibly, the timing of the op ed occurred because Joe Biden, echoing Obamian remarks in April, had "recent[ly]" indicated the possibility that an Obama administration might pursue possible criminal offenses by the Bushites. But whether Biden's remarks were the casus belli for Dershowitz, whether the casus belli was that the idea of prosecutions seems to be in the air now, or whether the upcoming debate with Sands fixed Dershowitz's intelligence around his policy (to paraphrase the infamous by a double entendre), is impossible to know.

I have now watched the debate between Dershowitz and Sands. (A video was subsequently made available on the internet by Harvard and, since I don't use a computer, our people made a DVD for me to watch.) There were some things that were so striking that they shall be discussed here before discussing Dershowitz's pitiful article. Indeed, a few of these striking matters bear on the article.

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Dershowitz's personal deportment was sometimes awful. It was sometimes a caricature of a certain ethnic and geographical canard. One had to see it to believe it, and anyone who doesn't believe me can view the approximately one hour and forty-five minute debate for him or herself. Dershowitz was totally intolerant of opposing views and assailed the good faith of opponents. At times he vigorously interrupted his opponent and persons who at the appropriate time were asking questions or making statements from the audience. He seemed very defensive, often seemed unwilling to let other people have their say, and his conduct was such that the moderator, who was himself from Harvard Law School, had to tell him on several occasions to calm down, to stop, or whatever the moderator may have said to him. It was an amazing public performance.

Dershowitz also took umbrage -- umbrage is the only word for it -- at what he claimed were misunderstandings of and misuse of the position he took on torture early- on. He was especially incensed that torturers might have said, and others might say, that torturers had gotten mental and/or psychological succor from what he wrote early-on in the game.

Whether Dershowitz is right in claiming that his work has been misconstrued seems to me an arguable question. In part the answer could depend on whether one focuses on certain "literalities" (so to speak) rather than other statements, and whether one considers implications and underlying presuppositions that ordinary readers might find even in the "literalities" he wishes to focus on. But beyond all this, that Dershowitz could not have understood in advance what ordinary readers might find in his various types of statements seems to me to credit Dershowitz with a stupidity he does not possess. Dershowitz does seem, as Sands said, to have a detached relationship to fact; he appears to be in stridently-expressed denial of the fact that torturers could have found succor in his work. Nor, I may say, did others who were in the room with him at Harvard and who spoke up, including some quite brilliant people, seem to find it so strange or impossible that torturers and their supporters had been succored by his writings.

Dershowitz also insisted on focusing extensively on the ticking time bomb scenario of which he seems to have been an intellectual pioneer shortly after 9/11. By now, of course, the whole torture question has gone worlds beyond that unreal, lawyers' hypothetical used by many to justify torture more broadly (although Dershowitz claimed there had been ticking time bomb scenarios in Israel). True, Dershowitz often discussed matters far beyond the limited, unreal ticking time bomb scenario. But that he nonetheless focused on it so much, and would often return to it though the actual real-world facts have moved so far beyond it, seemed -- dare I say it? -- very defensive, just like his unwillingness on various occasions to let other people talk without stridently interrupting them. (I think stridently is a fair word. If it isn't, vigorously surely would be.)

Then there was Dershowitz's strident (again a fair word, I think) insistence that he can be blamed for nothing because he is not a preacher, but is rather a Harvard professor whose job is to analyze the world as it is, to bring people to see the complexities of the world as it is instead of viewing it in their simpleton ways, to cause people to think, and, if the audience doesn't like it, they shouldn't be at Harvard. The performance put me in mind of Larry Summers' infamous comments about the abilities or inabilities of women. Summers too was supposedly just raising the question, just setting the possible truth before the intellectual heathen blinded by their left wing prejudices, etc. Dershowitz's performance was also ironic, since he insists he is an analytically minded Harvard professor, not a preacher, yet his style has on other occasions reminded me of nothing so much as the rabbis I sometimes used to hear as a little kid. But beyond being Summerian (not Sumerian -- that would be Iraq or Iran or somewhere), and beyond being ironic, Dershowitz's very vigorous insistence that he was always acting the part of the analytical Harvard question-raiser seemed -- dare I say it yet again? -- very defensive. I suppose a shrink might say it evinces being in denial of the possibility that his (Dershowitz's) work could have been relied on by torturers.

Of course, I'm not a shrink, so I can't really know. One thing that seemed clear even to an ignorant layman, however, was that Dershowitz's performance -- pretty much throughout -- was of the "It's all about me" variety (as in "Well, enough about me. Let's talk about you. What do you like about me?"). He wanted to talk about a ticking time bomb scenario which he apparently pioneered, even though it's quite irrelevant to almost all, or absolutely all, of what happened. He was misunderstood and misconstrued by both sides. He is against torture in reality. He is a Harvard professor and it is his job to bring analysis, complexity, and truth to the ignorant heathen, including the ignorant simpletons at Harvard. He is the one who should be talking, not others, he is right, and he should not be misunderstood, so others can be vigorously interrupted when they threaten this trinity.

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And withal, his brilliance was on display, his exceptional verbal facility, his ability to deal with concepts, his Stengelesque ability to bring in points or analogies others might not even dream of, his ability to bring in facts in rapid-fire fashion -- although some people thought he got facts wrong and Sands even said at one point that Dershowitz had a detached relationship to the facts. Dershowitz's brilliance -- as well as his obviously gigantic ego -- was on display in a perverse cause, and, one might even say, he was too brilliant by half.

Now let me turn to Dershowitz's op ed piece in The Wall Street Journal, to which some of the foregoing relates.

Near the beginning of his piece, Dershowitz concedes the need to preserve the idea that '"no one is above the law.'" But what he gives with one hand, he immediately takes away with the other. For there is a "countervailing principle . . . that is equally important." It is that "the results of an election should not determine who is to be prosecuted." (Emphasis added.) "These principles," he says, "inevitably clash when the winners of a presidential election investigate and prosecute the losers." The clash exists "even if the winners honestly believe that the losers committed 'genuine crimes' rather than having pursued merely 'bad policies.'" For the prosecution will almost surely be seen as "'a partisan witchhunt.'"

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Lawrence R. Velvel is a cofounder and the Dean of the Massachusetts School of Law, and is the founder of the American College of History and Legal Studies.

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