 |
|
May 24, 2013
May 22, 2013
John Thorne:
They launched the 'Arab Spring' but now yearn for the good old days of a strongman
May 20, 2013
Richard A. Serrano: Is Meir Kahane's assassin now a changed man?
Melissa Healy: Genetic copies of living people from embryos no longer science fiction
Jewz in the Newz by Nate Bloom : Jews Inducted into Rock Hall of Fame; Anton Yelchin co-stars in New "Trek" film; Kutcher (but not Kunis) visits Israel; Jewish TV Star Praises Jewish Rap Star
The Kosher Gourmet by Cathy Pollak: WARNING: This WALNUT CAKE WITH PRALINE FROSTING, perfect for afternoon coffee, is addicting
May 13, 2013
Rabbi Nathan Lopes Cardozo: Why the giving of the document that would permanently change the world could only be done in desolation
David G. Savage: Church-state, literally? Supreme Court weighing public school graduation in a church
May 10, 2013
Rabbi Berel Wein: Be all that you should be
May 8, 2013
Peter Ford: Why China is welcoming both Israel's Netanyahu and Palestinians' Abbas
Warren Richey: Obama administration quietly backs out of appeal over new contraceptive mandate
Fred Weir: At Kerry-Putin meeting, US-Russia relations thaw --- a tad
The Kosher Gourmet by Leela Cyd Ross : Almost too pretty to eat, this colorful salad with Sicilian inspiration will tickle the taste buds and delight your visual sensibility
May 6, 2013
May 3, 2013
Kids, kittens the Same? With employee perks at struggling Internet pioneer Yahoo! it's hard to tell
Sandy Kleffman: Artificial kidney offers hope to patients tethered to a dialysis machine
April 29, 2013
Roy Gutman: Poland's new Jewish museum celebrates life, doesn't revisit Holocaust
Mark Clayton: Terrorism in America: Is US missing a chance to learn from failed plots?
Kim Murphy: Boston Bomber's 'Svengali' Revealed
Pete Spotts: Tiny satellites + cellphones = cheaper 'eyes in the sky' for NASA
April 26, 2013
Clifford D. May: Defense in the Age of Jihadist Terrorism
Sharon Palmer, R.D.: How to feel your best -- with plenty of energy, a healthy weight and optimal mental and physical function -- without driving yourself batty
April 24, 2013
|
| |
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.
| BUY THE BOOK |
|  Click HERE to purchase it at a discount. (Sales help fund JWR.).
|
|
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.
Archives
© 2006, Creators Syndicate
|
