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February 10, 2012
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David G. Savage: Why activists may not be in a hurry to have High Court rule on alternative marriage
February 9, 2012
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Kimberly Palmer: How to actually enjoy -- relaxing, financially -- your vacation
February 8, 2012
Warren Richey: Why momentous Prop. 8 ruling might not satisfy gay-rights groups
Menachem Wecker: Though Controversial, LL.M.'s Can Lead to Specialized Legal Jobs
The Kosher Gourmet byDana Velden: Going to the bother of making soup? You know it better be good. This CREAM OF TOMATO SOUP certainly is! And it's a cinch to make, too (Includes techinques and serving secrets)
February 7, 2012
Frank J. Gaffney, Jr.: Caught off-guard? President's Super Bowl interview with Matt Lauer gives those who need a reason not to vote for him, a darn good one
Suzanne Bohan: Leaping lizards! Tiny reptiles advancing robot design
February 6, 2012
Jonathan Tobin: Iran Threatens Israel With Destruction, But the New York Times Doesn't Hear It
Jeffrey Fleishman: In newly democratic Egypt, tens of democracy activists jailed, to stand trial; their groups are 'threatening the stability of the homeland'
Julie Deardorff : Researchers say antioxidants may not be that effective and could do more harm than good
Mark Clayton: How did Anonymous hackers eavesdrop on FBI and Scotland Yard?
February 3, 2012
Edmund Sanders : Israeli official says Iran is creating missile that could reach East Coast of US
Victoria Kim: Immigrant-smuggling ring used black drivers to avoid racial profiling
February 2, 2012
Jim Carney: Wrong number call may have saved her life
Reza Kahlili : Ex-CIA spy in Iran's Revolutionary Guard: What Obama doesn't grasp about striking deals with Tehran
Tina Susman: For woodchuck rescuer, every day is Groundhog Day
February 1, 2012
Brian Bennett: US officials see increasing threat of domestic attack from Iran
Emily Brandon: How to Take Advantage of New 401(k) Fee Disclosures
January 31, 2012
January 30, 2012
Paul Richter and Ramin Mostaghim: Misreading Teheran's limits -- deadly and economically devastating as they may be -- is a risk administration, Europe seem willing to take
Suzanne Bohan: Warning: Nap-deprived tots missing more than sleep, study finds
Meg Handley: Banks Revamping Rewards Programs to Woo Customers
January 27, 2012
Caroline B. Glick: Obama: Of course I intend to prevent a nuclear holocaust . . . in a few months
Yochonon Donn: In liberal New York City, fervently-Orthodox Jews may soon be getting a district to call their own
Jeannine Stein: An inflated ego and thinking you're 'all that' doesn't just make others sick of you, it can make you ill
Katy Hopkins: New budget rules may affect how much money you get for college
January 26, 2012
Ed Koch: To the New York Times, calling for the murder of Jews by those capable of having their incitement taken seriously isn't news
Jeannine Stein: Mental illness struck one in five U.S. adults in 2010: Report
January 25, 2012
Richard Simon: House passes two bills endorsing the use of religious symbols at military memorials
Fred Weir: Putin: Multiethnic Russia cannot survive as a US-style 'melting pot'; must find its own way
Susan Johnston: 5 Sneaky Coupon Strategies Consumers Should Watch Out For
January 24, 2012
Carol Clark: The price of your soul: How your brain decides whether to 'sell out'
Caroline B. Glick: America lost most in 'Arab Spring'. Sadly, many voters still don't grasp the extent
Warren Richey: Drug criminal scores win in GPS ruling from conservative-leaning high court
Erika Bolstad: Black conservatives gather to talk about gaining strength
January 23, 2012
Melissa Dribben: Jewish voters to play a key role in Florida's Republican primary
Jordan Rau: In quest to grow, Catholic hospital system will announce this morning its break from church
Ali Safi: U.S. envoy gives Taliban terms for peace talks
January 19, 2012
January 18, 2012
January 17, 2012
Frank J. Gaffney Jr.: No-kidding red lines: U.S. response to an Iranian nuke may be bluster, but Israel's won't be
David G. Savage: They sued their principals after slandering them online --- now the cases are headed to the Supreme Court
David Francis: Where to Invest in 2012: With stocks expected to rebound, opportunity abounds for investors
January 13, 2012
Ben Lynfield: Israeli lawmakers move to annex Jewish Judea, one museum at a time
Alexia Elejalde-Ruiz: Thriving through touch: Gentle massage helps older people with low mobility improve in mind and body
January 12, 2012
Warren Richey: Landmark Supreme Court ruling a 'resounding win' for religious groups
Warren Richey: Supreme Court says no to new rule on eyewitness testimony
John Fauber : Statins found to raise diabetes risk in postmenopausal women
Katy Hopkins : Consider This Before You Pay for an Online Degree
The Kosher Gourmet by Joseph Erdos: This mushroom and barley soup has an intense -- almost nutty -- flavor that mixes robust with Middle East. It has creaminess without cream
January 11, 2012
Shari Roan: Millions of atrial fibrillation sufferers at risk for devastating, but preventable, stroke
Tom Hussain: Pakistan -- recipient of more than $21 billion in civilian and military aid -- speeds pursuit of Iranian pipeline, defying US
David G. Savage: High court signals it won't be loosening TV's 'indecency' rules
Stephen Ceasar: Oklahoma's Islamic law amendment can't go into effect, court rules
January 10, 2012
Reza Kahlili: From an ex-CIA spy: US must exploit new split in Iran's Revolutionary Guard
Karen Kaplan: Study: Nicotine replacement products ineffective when used in real-life situations
January 9, 2012
Michael Doyle: Put through legal hell over dream home, couple fought back hard --- all the way to Supreme Court
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Jewish World Review
Feb. 22, 2006
/ 24 Shevat 5766
All praise Prof. Alan Dershowitz
By Tony Blankley
http://www.JewishWorldReview.com |
Next week a vastly important book will be published: "Preemption, A Knife That Cuts Both Ways" by Alan Dershowitz. Yes, that Alan Dershowitz: the very liberal civil libertarian, anti-capital punishment Harvard Law School professor. And but for my lack of his legal scholarship, there is nary a sentence in the book that I — a very conservative editor of the Washington Times, and former press secretary to Newt Gingrich — couldn't have written.
The premise of his book is that in this age of terror, there is a potential need for such devices as profiling, preventive detention, anticipatory mass inoculation, prior restraint of dangerous speech, targeted extrajudicial executions of terrorists and preemptive military action including full-scale preventive war.
In his own words, from his Introduction: "The shift from responding to past events to preventing future harms is part of one of the most significant but unnoticed trends in the world today. It challenges our traditional reliance on a model of human behavior that presupposes a rational person capable of being deterred by the threat of punishment. The classic theory of deterrence postulates a calculating evildoer who can evaluate the cost-benefits of proposed actions and will act — and forbear from acting — on the basis of these calculations. It also presupposes society's ability (and willingness) to withstand the blows we seek to deter and to use the visible punishment of those blows as threats capable of deterring future harms. These assumptions are now being widely questioned as the threat of weapons of mass destruction in the hands of suicide terrorists becomes more realistic and as our ability to deter such harms by classic rational cost-benefit threats and promises becomes less realistic."
Yet, such policies conflict with traditional concepts of civil liberties, human rights, criminal justice, national security, foreign policy and international law He shrewdly observes that historically, nations — including democracies — have resorted to such deviations from law and custom out of necessity. But that it has all been ad hoc, secret or deceptive. Prof. Dershowitz argues that now, rather, we need to begin to develop an honest jurisprudence of prevention to legally regulate such mechanisms. It is better, he argues, to democratically decide now, before the next disaster, this new jurisprudence — the rules by which we will take these necessary actions.
To see the difference between traditional Anglo-American criminal jurisprudence and his proposed jurisprudence of prevention, he raises the great maxim of criminal law: better that ten guilty go free, than one innocent be wrongly convicted. That principle led our law to require proof beyond a reasonable doubt before conviction in criminal trials. Most of us agree with that standard.
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But then Prof. Dershowitz updates the maxim thusly: "Is it better for ten possibly preventable terrorist attacks to occur than for one possibly innocent suspect to be preventively detained?" I would hunch that most people would not be willing to accept ten September 11th attacks (30,000 dead) in order to protect one innocent suspect from being locked up and questioned for a while.
Is it possible to go beyond such gut instincts and ad hoc decision making during a crises, and begin to develop a thoughtful set of standards for conduct in this dangerous new world? I don't know.
As Prof. Dershowitz observes, a jurisprudence develops slowly in response to generations, centuries of adjudicated events. But to the extent we recognize the need for it and start thinking systematically, to that extent we won't be completely hostage to the whim and discretion of a few men at moments of extreme stress.
At the minimum, an early effort at a jurisprudence of prevention would at least help in defining events. Consider the long and fruitless recent debate about the imminence of the danger from Saddam Hussein's Iraq, or the current debate on Iran's possible nuclear weapons. Under traditional international law standards they are both classic non-imminent threat situations: "early stage acquisition of weapons of mass destruction by a state presumed to be hostile."
But as Dershowitz points out, while the threat itself is not imminent, "the opportunity to prevent the threat will soon pass." Once they have the weapons it is too late.
Or, a low price in innocent casualties might soon pass. For instance, in 1981 when Israel bombed Iraq's nuclear site at Osirak, if they had waited much longer the site would have been "radioactively hot" and massive innocent civilian casualties would have been incurred from radioactive releases. It is simply not enough anymore to say a country violates the norm by acting in its ultimate, but not imminent, self-defense. We need new standards for a new age.
The new realities of unacceptable risk require new — and lower — standards of certainty before defensive action is permitted.
As we develop a jurisprudence of prevention, we increase the chance of justice and rationality being a bigger part of such crisis decisions that our presidents will be facing for the foreseeable future.
Dershowitz's sound, practical scholarship is commendable. But what I find heartening is the political fact that a prominent scholar of the left has finally entered into a constructive conversation about how to manage our inevitably dangerous WMD/terrorist infested future.
If such as Dershowitz and I can find common ground, there should be space there for a multitude. And from that common ground can grow a common plan for a common victory.
Every weekday JewishWorldReview.com publishes what many in Washinton and the media consider must reading. Sign up for the daily JWR update. It's free. Just click here.
Tony Blankley is editorial page editor of The Washington Times. Comment by clicking here.
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