The Best Offense

By

Why Terrorism Works: Understanding the Threat, Responding to the
Challenge

by Alan M. Dershowitz

(Yale University Press, 271 pp., $24.95)

Click here to purchase the book.Richard A. Posner is a judge on the U.S. Court of Appeals for the
Seventh Circuit and a senior lecturer at the University of Chicago
Law School.

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.

By Richard A. Posner

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