Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. Professor Dershowitz is Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,” “America’s most public Jewish defender” and “Israel’s single most visible defender – the Jewish state’s lead attorney in the court of public opinion.” He has published more than 100 articles in esteemed magazines and journals and authored 27 fiction and non-fiction works with a worldwide audience. A graduate of Brooklyn College and Yale Law School, Dershowitz joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.
The Politic: In your endorsement of Barack Obama in October 2008, you cited his support of Israel as a major factor in your decision. Almost nine months later, in July 2009, you came out with an editorial in the Wall Street Journal – “Has Obama Turned on Israel?” – that stated, “there may be coming changes in the Obama administration’s policies that do weaken the security of the Jewish state.” After Obama’s first full year in office, how would you rate his administration’s policies on Israel? How do you see them evolving over the coming years?
AD: Well, I think in terms of action, his administration has done quite well. They’ve done nothing to undercut Israel’s security. They have supported Israel’s right to defend itself, for example, by rejecting the Goldstone Report and defending Israel’s right to build a security barrier. In terms of rhetoric, I think that the Obama administration is getting a B minus, with grade inflation. His choice of words has been very insensitive.
I’ll give you a recent example. He announced, I believe on January 15th, that he wanted to praise all of the countries that had come to the aid of Haiti. He mentioned Mexico, France, the Dominican Republic, and a few other countries. Now, Israel of course was the dominant country providing aid to Haiti. They were the first country there, set up the best field hospital, and sent the most doctors. Obama made a deliberate decision to omit Israel from the list. I think he did that for obvious reasons, since every time he mentions Israel, he wants to mention Arabs and Palestinians to show balance. He couldn’t do that when it came to Haiti, because the Arab world and the Muslim world have done nothing to help Haiti, just as they did nothing to help after the Tsunami, when Israel was also over the top with its support. So, instead of saying Israel without saying the Arabs, he just left out Israel. Also, in his speech in Cairo, he used words that made some people believe that he was comparing the plight of Palestinians in Gaza with victims of the Holocaust. He talked about Israel as if it came into existence only as it literally did in 1948, without mentioning its predecessors in the Jewish population which had been there for many many years before that. So, in an effort to be balanced, his words have created a real imbalance.
That said, his deeds so far have been pretty good. The big unknown is whether he will accept a nuclear Iran. If he does, it will be among the worst legacies of the Obama administration. If under Obama’s watch, Iran gets nuclear weapons, changes the entire dynamic of the Middle East, allows Hezbollah and Hamas to operate under a nuclear umbrella, and allows for the possibility of leakage, under which al-Qaeda could conceivably get nuclear materials to use against the United States, it would be one of the worst foreign policy disasters in the modern American history. It remains to be seen whether or not the Obama administration will keep their essential promise to never accept a nuclear Iran. I’m uncertain about how that will work out.
The Politic: In your 2002 book, Why Terrorism Works, you talked about how we need to develop what you refer to as a “jurisprudence for the emerging preventative state.“ As the United States takes a more preventative approach to terrorism, perhaps the rules of the game have changed…
AD: Absolutely. We need a jurisprudence. It’s not so much that I’m saying the rules should change; I’m saying the rules have changed, and we don’t have a jurisprudence to govern this changing approach. It goes from the mega to the micro levels. At the micro sense, we have to decide what to do with the people at Guantanamo, and that raises the issue of whether there should be an explicit system, for example, of preventive detention. This would involve holding people that we have not convicted of any crimes, and can’t convict of any crimes, but who we strongly believe would be terrorists if we let them out. That would be very dangerous to do, but on the other hand, so would letting them out.
Now, we’re doing the third alternative and keeping them in without a jurisprudence, and this is also very dangerous. These are very hard questions. If the United States were to try to prevent Iran from developing a nuclear weapon, that would be a preventive war or preventive military action. We don’t know what the rules are there. Right now, we are acting without the constraints of a jurisprudence. It’s very important in a democracy that a jurisprudence precede action rather than follow action.
The Politic: How effective is torture in gathering information? Under what circumstances, if any, should the United States use it?
AD: Well, first of all, torture is extraordinarily effective in gathering information, and anybody who tells you that it’s not is just lying through his teeth. That doesn’t mean that it always or often works, but it does sometimes work and there’s just no dispute about that. There is absolutely the widest range of evidence supporting that conclusion. I wish it weren’t so, but it’s true. During World War II the Nazis managed to get everything they needed from the French Resistance, including the names of brothers, parents, loved ones and children. You can get information from torture that you can’t get in any other way. Anybody who denies that is desecrating the memory of hundreds of people who died under torture and gave information. It’s one of these myths that torture never works and therefore we don’t have to even consider the issue. In my view torture works and we should never use it.
We have to understand that we are sacrificing very important information in the name of perhaps a more important principle. That said, it works and I’m not one of these civil libertarians who believes that free speech doesn’t hurt anybody and therefore we should have it. Free speech is very dangerous, and we should have it. Torture works, and we shouldn’t have it. I’m not in favor of using torture, but I do recognize that it will be used. There is not a single president of America, including Obama, who swore not to use torture, that wouldn’t use it. If the CIA came to Obama’s office and said, “look – there is a nuclear bomb in New York City set to go off in 20 hours. We have one of the people who knows where it is and Mr. President, you’re going to have to make a decision. Either you’re going to be responsible for the deaths of 500,000 people or the torture of one person. Which one will it be?”
Every president will torture under those circumstances. I’m not saying that it’s right or good, but that it will happen. If it’s going to happen, we ought to have rules that govern when it’s permissible and when it’s not. You might ask me, how can I oppose torture and still favor rules? Well, I’ve opposed the death penalty since I was old enough to remember, and yet I favor rules for administering the death penalty because I know it is being administered today, and therefore we need to have rules. If torture is going to be used, we have to have rules.
The Politic: You actually proposed a type of warrants for torture.
AD: Absolutely. You have to get the court to dirty their hands. You have to get the judges to commit to something. They’ll be presented with a warrant that says, “Your Honor, unless you allow us to torture this guy, a bomb will go off.” Judges don’t want to make those decisions. They would rather leave it to the underlings and the CIA. Not in a democracy. In a democracy, decisions need to be made at the highest level. I’ll give you an analogy. Let’s assume an airplane is flying towards the Empire State Building in the middle of the day. There are 10,000 people in the Empire State Building and 300 people in the airplane. All evidence suggests the plane has been hijacked and is headed towards the Empire State Building. You have an hour to make a decision and you can’t evacuate the building in an hour.
The only option is to shoot down the plane. There’s a 90% possibility that the plane is being run by terrorists and a 10% possibility that passengers have taken or will take back control of the plane. Somebody has to make that decision and it shouldn’t be some low-ranking police officer. It should be the President of the United States or the Secretary of Defense. The highest possible officer of the government should make the decision of whether to shoot down that airplane. The same is true for any important state decision, including torture.
The Politic: You, among many other people, came out against the Goldstone Report…
AD: …Well I’ve now written a very thorough 50 page response with paragraph-by-paragraph analysis of the report showing that they use totally different evidentiary standards when criticizing Israel and criticizing Hamas.
The Politic: Do you think it had an effect on U.S. public opinion towards Israel?
AD: Yes. Normally a United Nations report condemning Israel would be thrown in the garbage because everybody knows that the United Nations, and especially the Human Rights Council, always condemns Israel. They were very clever this time and picked a Jew named Goldstone, because he was a Jew. The only problem they had with Goldstone was that they wished his name had been Goldstein or Goldberg because Goldstone isn’t quite as Jewish. They deliberately picked him because he was Jewish and had a distinguished record on human rights issues. The report is totally and completely backwards. It says there is no evidence that Hamas used civilians or hid among civilians, when there’s massive evidence that they hid among civilians. It says that Israel intended, at the highest levels, to kill civilians, when really Israel went to the greatest lengths to avoid killing civilians. They got everything totally backwards, but having Goldstone’s name on the report gave it some credibility.
There are people in the United States, including professors and students at Yale and Harvard, who say that if Goldstone wrote it, then it must be right. The interesting thing about the Goldstone Report is that it’s one of the first cases I’ve ever seen where it is an ad hominem in reverse. The classic fallacy of ad hominem is that you don’t dismiss an argument because of who made it. The opposite of that, which is just as powerful logically, is that you don’t accept an argument just because of who made it. The Goldstone Report is completely discreditable, except for the fact that Goldstone wrote it. Most of the people who support it claim that it has to be right because Goldstone wrote it. That is the logical fallacy of ad hominem in reverse.
The Politic: You mentioned Hamas. Mahmoud Abbas cited the difficulty of achieving peace with Israel when he declared that he won’t be seeking another term. How do you envision his decision will effect the actions of Hamas in Palestine? Will this move Palestine in a more peaceful direction when it comes to seeking a compromise with Israel?
AD: I hope so, but I doubt it. In 2000 and 2001, Israel, through President Clinton, offered the Palestinians virtually everything they had been asking for. This included the entire Gaza Strip, 95 or 97% of the West Bank, a capital in East Jerusalem, a $35 billion reparations package for refugees, the end of the occupation and settlements, and virtually everything else the Palestinians wanted. The Palestinians rejected it, which the Saudis, through Prince Bandar, called a crime against the Palestinian people. Israel has wanted peace. It offered peace in 1948, 1967, 1993 and 2000. Netanyahu wants to sit down unconditionally and try to resolve this with the Palestinian people today, but Abbas has refused to do it and Hamas won’t change its charter. Israel is now a prosperous country that has had a tremendous breakthrough with high technology. It now exports more life-saving medical technology around the world per capita than any other country. The peace dividend to the world would be unbelievable, and Israel wants peace.
Let me make two statements and tell me if anybody contradicts them. Firstly, if Palestinian terrorists laid down their arms, there would be immediate peace. I don’t think anybody disputes that. Secondly, if Israel laid down its arms, there would be immediate genocide. I don’t think anybody would dispute that. Those are two horrible facts of life. If Israel laid down its arms, they would be slaughtered. If the Palestinians laid down their arms, Israel would extend an offer of peace. If those two statements are true, then you have to ask yourself, who is the barrier to peace?
The Politic: Do you think a two-state solution will ever be possible?
AD: I do and I think it’s inevitable. I’ve always been opposed to the civilian settlements on the West Bank and the Israeli policy of having civilian settlements. I think Israel’s desire to live within the 1967 borders has changed a little bit by the realities on the ground, but that every piece of land that Israel takes should be compensated for by land that Israel gives back to the Palestinian state. Israel should not be governing over Palestinians and Palestinians shouldn’t be governing over Israelis. I think the two-state solution is the only just solution and I’ve always felt that way. I’ve advocated it since 1973 and I continue to advocate it.
The Politic: You’ve advocated profiling based on what you describe as “a wide variety of characteristics that are directly associated with the risk of terrorism.” What are some of these characteristics? To what extent does this type of profiling already exist? What legal issues would this policy face?
AD: As a lawyer, I profile all the time. When I pick my juries, I profile. When I make decisions in life, I profile. I take a variety of factors and I put them together to create a realistic assessment of what I think the threats are. When I decide which street to walk down, I profile. I think that what’s wrong is to regard every Muslim as a potential terrorist, and every non-Muslim as non-terrorist. I think that’s foolish and unfair. Taking into account a range of factors, including travel history, religious indoctrination, expressed attitudes, and history of violence, is not only correct morally, but also the sensible thing to do. This type of profiling already exists because it’s just a natural human instinct. I always prefer that when we do something, we do it openly.
That’s why I want torture warrants and why I want profiling to be permissible, but I also want to know what we can and cannot profile. I don’t like decisions being made under the radar screen. That’s been my philosophy of life for the 46 years I’ve been teaching. I want to make sure that whatever decision the government makes is done openly. That’s true with profiling, preventive detention, torture, and virtually all of these issues. A lot of people would prefer to make these decisions below the surface and without accountability. I believe that’s inconsistent with democracy.
The Politic: You’ve obviously had quite a successful career as a criminal defense lawyer. What do you attribute to your success in that role and what are the most interesting cases for you to try? I imagine that it isn’t often that the high profile cases are actually the most interesting.
AD: Most of the high profile cases are the most boring, with some of the most boring clients I’ve ever had. They’re just boring people. The most exciting cases are the ones that present an intellectual challenge. For example, I had a case where someone shot somebody thinking the guy was dead. It turned out the guy he shot was possibly alive. Can you be charged with attempted murder for shooting someone you thought was a corpse? There are a whole range of intellectually stimulating issues that I’ve written about. I love cases at the interface of law and science; ones about causation and the cause of death. I’ve been doing CSI before CSI was on television. I think I’ve been so successful because I don’t leave any stone unturned. I never give up. If some guy is on death row with a signed death warrant, I’m going to fight for him. Even after he’s dead, I’m going to try to prove he was innocent. I just never give up.
The Politic: You knew Barack Obama when you both were at Harvard Law School. What characteristics about him stuck out to you then?
AD: I have no recollection of him being in my class, but I do remember Michelle Obama taking it. I remember meeting him when he was running to be president of the Harvard Law Review and seeing him in the gym playing basketball. He was a well-regarded ball player. I knew him well enough to know that he was a superb politician. When he ran for president of the law review, many conservatives voted for him because they thought he was a moderate, and many liberals voted for him because they thought he was a liberal. He managed to reach out to a wide variety of people. He was very popular, articulate, and well-liked. What you see is what you get.