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Thursday, September 5th, 2002


Why Terrorism Works Understanding The

by Alan M Dershowitz

The Best Offense

A review by Richard A. Posner

Alan Dershowitz's notoriety makes it impossible to approach his new book with a completely open mind. His notoriety is not undeserved. Although he is a professor at Harvard Law School, Dershowitz is not a scholar. His principal activities, when he is not actually in class teaching, are defending infamous criminal defendants, such as O.J. Simpson, Claus von Bulow, Mike Tyson, and Jonathan Pollard; appearing on television talk shows; and writing books and articles of a journalistic character on current events, such as the Clinton-Lewinsky scandal and the 2000 presidential election deadlock. In his defense of his clients, and in his activities as a best-selling and camera-chasing "public intellectual," he is notable for a lack of self-restraint that should be surprising in an academic at a distinguished university, as when he said on Geraldo Rivera's show that a vote against impeaching Clinton would be not a vote for Clinton but instead "a vote against anti-environmentalism." In his last book before this one, he accused five justices of the Supreme Court of outright corruption in siding with Bush in Bush v. Gore, offering as prime evidence for this very serious charge such unverifiable hearsay as his unrecorded conversations with unnamed law clerks and other juicy leaks and hot tips. He has frequently blamed his losses in court on corruption on the part of prosecutors and judges.

The naughty Alan is occasionally on display in his latest book, as when he remarks that "former CIA lawyer Adam Saralsky has said he was fired from his job [in the wake of Pollard's arrest] because counterintelligence officers accused him of spying for Israel, with no evidence other than his identification as a religious Jew." Dershowitz himself offers no evidence for Saralsky's implausible charge. The book has other flaws, too. For a start, there is its misleading title: Dershowitz does not show that the two forms of terrorism that concern him, the Palestinian suicide bombers in Israel and the Al Qaeda network, actually "work" (that is, succeed) in any intelligible sense. The truth is that they may well be "suicidal" in the colloquial sense as well as the literal one.

Much of Dershowitz's book is concerned not with the anatomy of modern terrorism but with what we should do to combat it. The book is episodic — more a collection of pieces on related topics than a unified, comprehensive approach to the problem of international terrorism. There are five chapters but only four essays, as the first chapter is really just a summary of what is to follow. The second chapter is a powerful, sickening narrative of Palestinian terrorism since 1968; I had forgotten how much of it there was after as well as before the Oslo accords of 1993 that were supposed to end it. What changed, and what differentiates Palestinian terrorism from the newer Islamicist terrorism — the violence of Osama bin Laden and his ilk — is that the Palestinians eventually decided to confine their deadly activities to Israel, the West Bank, and the Gaza Strip.

Dershowitz shows how cheap and practicable Palestinian terrorism turned out to be for the terrorists, owing to the appeasement of them that was practiced by all nations except Israel and the United States (though American policy has not been as firm and constant). Terrorists seized by other nations were invariably released or allowed to escape in short order, and so they paid no price and were in no serious way impeded. Leading the list of appeasers, Dershowitz mordantly notes, were "France, Germany, Italy, the U.N. General Assembly, the Nobel Prize Committee, and several churches." He remarks elsewhere on the special solicitude that Pope John Paul II has extended to Arafat, and notes that "at least three terrorist leaders have been awarded the Nobel Peace Prize."

Dershowitz shows how the policy of appeasement extended beyond releasing terrorists to embracing the terrorists' political objectives. Oslo, he argues, rewarded Palestinian terrorism, though in fairness he should have added that such a view is largely a matter of hindsight; at the time it was plausibly viewed by many as the reward for renouncing terrorism and as a sensible attempt by Israel to see if peace was possible. Other equally deserving or more deserving groups seeking independence, such as the Basques, the Kurds, and the Armenians, Dershowitz points out, receive negligible international support because they do not wield the terrorism weapon with sufficient ferocity to trigger the appeasement reflex. Since terrorism on the scale practiced by the Palestinians paid off, he argues, other groups with unsatisfied political aims, including bin Laden's followers and the ultra-radicals among the Palestinian Arabs, were encouraged to turn to large-scale terrorism.

The links that Dershowitz seeks to forge between Palestinian and Islamicist terrorism — the successes of the former becoming the inspiration for the latter, the two inseparable (the cover of Why Terrorism Works is dominated by photographs of Arafat and bin Laden) — are too indirect to be convincing. He quotes approvingly a statement by Benjamin Netanyahu that "the success of terrorists in one part of the terror network emboldens terrorists throughout the network," and he says that given how "the international community responded to terrorism between 1968 and 2000 by consistently rewarding and legitimizing it ... it is no wonder we had to suffer the horrors of September 11." Yet as even Dershowitz acknowledges, Palestinian terrorism is still primarily secular and has a limited — albeit radical and unattainable — aim, namely, to drive the Jews out of Israel, though for the violent radicals it seems that obtaining a Palestinian state in the West Bank and Gaza is merely an interim aim. Arafat and bin Laden are hardly members of the same "network" if the term is used to denote actual relations rather than merely a nebulous affinity.

The latter form of terrorism, the bin Laden kind, Dershowitz himself calls "apocalyptic." Its aims, beyond seeking to wound the United States, are global but obscure. Maybe wounding us is its only serious aim; if so, the political "successes" of Palestinian terrorism would not have been an inspiration. It is worth recalling that Palestinians did not invent terrorism (they did not even invent suicide bombing), and it is hopelessly speculative to suppose, as Dershowitz implies though does not say outright, that Al Qaeda would not have become a terrorist organization had Arafat taken the Gandhian path of non-violent resistance to the Israeli occupation of the West Bank and Gaza. The roots of bin Laden's lethal anger are to be found, rather, in the distinctive social and religious conditions prevailing in Saudi Arabia. (In tension with his argument that terrorism "works," Dershowitz claims also that non-violence would have been a more effective strategy for the Palestinians than terrorism.)

Still, Dershowitz is correct that appeasement tends to feed terrorism rather than to starve it. The craven European response to Palestinian terrorism does rather remind one of Europe's craven and ineffectual response to the rise of Hitler. In both cases, appeasement was rationalized by reference to "root causes" (Israel's occupation of the West Bank and Gaza, in the case of the Palestinians, and the injustice of the Versailles Treaty, in the case of the Germans). But Dershowitz's conclusion — and one of the major themes of the book — is that nations therefore must adopt an unbending policy of refusing to make concessions to groups that resort to terrorism, and this seems hasty. He is right that concessions encourage terrorism and are therefore a costly policy that ought normally to be avoided. He is right that responding to terrorism by "try[ing] to understand or eliminate its alleged root causes" is just another form of appeasement. ("We don't address the root causes of a bad marriage that may have led a man to murder his wife — we hunt down the murderer and punish him.") But costs must be weighed against benefits. (Cost-benefit analysis is repeatedly, and usefully, invoked in Why Terrorism Works.) When terrorists have plausible aims and cannot be extirpated save at enormous cost, it may be sensible to make an accommodation with them. An endless war is not always the most moral or the most prudent course of action. Sometimes a political solution may be possible and desirable; Northern Ireland may be a current illustration. It all depends. But Dershowitz is correct to think that neither the Palestinian terrorists nor (certainly) Al Qaeda fits this bill.

In the rest of his book Dershowitz deals with ways of eliminating terrorism (other than by giving in to it). He considers the range of options open to what he calls an "amoral" society, but which is more accurately described as a society that operates without the limitations that democracy and civil liberties place on the use of force against its internal enemies — ordinary criminals and would-be revolutionaries. The qualification implicit in "internal" is important. In wartime, a liberal democracy treats its enemies with the same lack of consideration with which its enemies treat it. It follows either that war, even when defensive, is "amoral," or, more plausibly, that the morality of war is different from the morality of ordinary policing. But what Dershowitz really means is simply that a totalitarian regime would fight the particular kind of war that we are fighting more ruthlessly than we are fighting it, and therefore more effectively. For a liberal democracy may not be ideally qualified to fight this war. It is a war in which most of the fighting is against secret enemies within rather than against uniformed enemies without, and the most effective way of fighting secret enemies inside your own country involves the wholesale suspension of civil liberties.

Dershowitz devotes one of his chapters to a specific issue of the war against terrorism: namely, whether torture should be permitted to be used to extract information from suspected terrorists. He makes a point that only the most doctrinaire civil libertarians (not that there aren't plenty of them) deny: if the stakes are high enough, torture is permissible. No one who doubts that this is the case should be in a position of responsibility. If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used — and will be used — to obtain the information. Dershowitz gives the telling example of Philippine authorities who in 1995 "tortured a terrorist into disclosing information that may have foiled plots to assassinate the pope and to crash eleven commercial airliners carrying approximately four thousand passengers into the Pacific Ocean." He cites a federal court opinion that approved a police officer's choking a kidnapping suspect until the suspect revealed where the kidnap victim was. And he asks: "What moral principle could justify the death penalty for past individual murders and at the same time condemn nonlethal torture to prevent future mass murders?"

But it is typical of Dershowitz's lack of restraint that he should think it appropriate to reveal to his readers that his preferred form of "nonlethal torture" is inserting a sterilized needle under the suspect's fingernails. One might have expected that before recommending the infliction of physical pain Dershowitz would have explored the adequacy of truth serums, bright lights (the old "third degree"), and sleep deprivation — a combination, moreover, more aptly described as coercion than as torture. Maybe he has explored these alternatives and found them wanting, but there is no discussion of this question in the book. Instead he moves directly to a method that many will see (quite properly) as tinged with sadism. Moreover, it is unlikely that a single method of forcibly extracting information would be optimal in all cases. Some people may be less susceptible to physical pain than to other forms of inducement or coercion.

Dershowitz believes that the occasions for the use of torture should be regularized — by requiring a judicial warrant for the needle treatment, for example. But he overlooks an argument for leaving such things to executive discretion. If rules are promulgated permitting torture in defined circumstances, some officials are bound to want to explore the outer bounds of the rules. Having been regularized, the practice will become regular. Better to leave in place the formal and customary prohibitions, but with the understanding that they will not be enforced in extreme circumstances. Abraham Lincoln suspended habeas corpus during the early months of the Civil War. The Constitution almost certainly does not authorize the president to suspend habeas corpus. Lincoln did it anyway, and (as William Galston has argued recently) he was probably right to do so: the Union was in desperate straits and its survival was more important than complying with a provision of the Constitution. (Dershowitz criticizes the suspension in passing, but he does not consider the arguments for it.) But it does not follow from the practical wisdom of Lincoln's action that the Constitution should be amended actually to authorize the president to suspend habeas corpus. For a president might be inclined to test the scope of such authority. Similarly, it is not necessary to enact a statute authorizing torture — a statute that, as Dershowitz argues, might well be deemed constitutional, provided no effort was made to introduce confessions obtained by torture in judicial proceedings against the person tortured.

Dershowitz's discussion of torture, and the final essay in which he outlines other measures for fighting international terrorism, are animated by a recognition of the fact — again, a fact obvious to everyone except the doctrinaire civil libertarian — that the scope of our civil liberties is not graven in stone, but instead represents the point of balance between public safety and personal liberty. The balance is struck by the courts, interpreting the vague provisions of the Constitution that protect personal liberty; and it is constantly being re-struck as perceptions about safety and liberty change. The more endangered public safety is thought to be, the more the balance swings against civil liberties. That is how it is and that is how it should be; and it is good that so committed a defender of criminal rights as Dershowitz should state this in forthright and unapologetic terms. Terrorists are more dangerous than ordinary criminals, and so, as he points out, the dogma that it is better for ten guilty people to go free than for one innocent person to be convicted may not hold when the guilty ten are international terrorists seeking to obtain weapons of mass destruction. American history and legal practice show that the law can distinguish sensibly between different levels of threat to public safety. American history and legal practice also show that curtailments of civil liberties to meet national emergencies are temporary, ceasing when the emergency ceases. We do not know when the current threat will abate, but it is unduly pessimistic to suppose it never will.

Another silly dogma that Dershowitz rightly rejects is that collective punishment is never proper. He argues that people who cheer on or otherwise support terrorism, while not as culpable as the terrorists themselves, are sufficiently culpable to be appropriate targets of at least economic punishments. These are actually rather tepid examples of collective punishment; they sound more like accomplice liability. The classical notion of collective punishment punishes the innocent who are in a good position to control the guilty. Collective punishment so defined (as distinct from punishment visited upon an entire people or class for the deeds of some members that the other members could not reasonably be expected to prevent) is not alien to our system. An employer is liable for negligent injuries inflicted by his employees within the scope of their employment even if he was not negligent himself.

Dershowitz is scornful of the privacy fetish that prevented the FBI from checking the gun-purchase records of aliens detained in the wake of the September 11 attacks and that makes civil libertarians shudder at the very idea of a foolproof national identity card, even though, as he points out, it would reduce the need for ethnic profiling, that is, for the use of ethnicity as a proxy for likely criminality. He introduces the useful phrase (for which he credits Harvey Silverglate) the "feel of freedom" to guide the re-balancing that is required in the wake of the September 11 attacks and of all we have learned since about the terrorist threat. He argues that if our civil liberties are so far restricted that Americans no longer have the "feel of freedom" — no longer feel that they live in a basically free country — then we will have paid an enormous and probably an inordinate price for what are bound to be merely incremental and uncertain increases in our sense of safety. But as he points out, Israelis — or at least Israeli Jews, though he claims, rather unconvincingly, Israeli Arabs as well — still have the "feel of freedom" even though civil liberties are more limited in Israel than in the United States.

Dershowitz's book will anger unreconstructed civil libertarians, the government-phobes on the extreme right, and Arafat's European apologists. That is a considerable merit; but more important is that he has shown that international terrorism does not present an insoluble contradiction between the Constitution and American security. Police tactics and legal doctrines can be reasonably and defensibly adjusted to the threat without turning the country into either a police state or a libertarian playground for killers.

(Copyright 2002, The New Republic)

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