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Arts & Culture War on Terror Should Include Legalized Torture, Dershowitz Says

November 19, 2002
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In his newest book, Alan Dershowitz tackles a dilemma that has troubled Jewish communal leaders amid the war on terrorism: how to strengthen law enforcement while preserving civil liberties.

Never one to mince words, the prominent Harvard criminal law professor gives a plain answer to the book’s provocative title, “Why Terrorism Works” — because the world has rewarded it.

To make his case, Dershowitz charts Palestinian terrorism and corresponding advances for the Palestinian cause in publicity and diplomacy.

Several European countries have cooperated with terrorists to wiggle out of their path, Dershowitz writes. He equates their move with the “prisoner’s dilemma,” in which two prisoners are better off if neither informs the police, but whoever does gets the better deal.

In the global equation between those encouraging terror and those opposing it, the “villains are France, Germany, Italy, the United Nations and the Vatican, and the heroes are the United States and Israel,” Dershowitz told JTA in a phone interview.

“We’re the good guys; they’re the bad guys.”

Dershowitz also delves into how America can apply traditional criminal theory, like deterrence, to the war on terrorism by punishing countries that sponsor terrorism with economic sanctions.

But several of the prospects Dershowitz discusses — specifically, legalizing the use of torture and implementing a national system of ID cards — are controversial.

“Almost everybody hates the chapter on torture, which is the chapter I’m most proud of,” Dershowitz said. “Conservatives don’t like it because it doesn’t go far enough; liberals don’t like it because it goes too far in their view.”

Marc Stern, associate executive director of American Jewish Congress and co-director of its legal department, said legalizing torture would create a slippery slope in America and a dangerous model for other countries.

Dershowitz counters that torture already exists in the United States, under the radar screen, with no checks on the system.

“Tolerating an off-the-book system of secret torture can also establish a dangerous precedent,” he writes.

Stern said, “Jews certainly should not be in the lead debating torture.”

But he added, “I find it hard to believe that even the most die-hard opponent of torture would think that if we caught one of two people with a nuclear bomb or with the germs to poison the water of New York City or release some gas that will kill tens of thousands of people, that even they would not resort to torture under those circumstances.”

As for national identification cards, an idea the AJCongress has long opposed, the group is in the midst of reviewing its policy.

The issue last came up in the late 1960s, during the urban riots and Vietnam War protests of the Nixon administration, Stern said.

“What’s changed, and what requires re-examination, is the fact that the calculus of harm on the other side has changed,” he said.

While “it’s not clear how helpful national ID cards will be,” today’s stakes require such discussion, Stern said.

“You’re talking about wholesale murder and the very fact that we have lost control of who we have in the country,” a powerful argument in favor of national identification cards over the drawback of loss of privacy, he said.

The Commission on Social Action of Reform Judaism, the public policy arm of the Reform movement, also is discussing the issue.

“It’s a really good illustration of how complex these issues are,” said Mark Pelavin, associate director of the Religious Action Center of Reform Judaism. “Clearly there are gains to be had on a security level from an ID card, but it’s not clear yet that they outweigh the very real dangers on personal privacy that are possible from abuse of such centralized information.”

Discussion of national ID cards fell flat in Washington earlier this year after a coalition of liberal and conservative politicians opposed it, but the issue is still alive, said Charles Brooks, Washington representative of the AJCongress.

Such cards could help facilitate the vaccination of Americans in case of a germ warfare attack.

One key development in the struggle is the serious attention Dershowitz pays to both sides of the divide, according to Stern.

As it stands, “one side says ‘the hell with it, we’re at war, everything goes,’ and the other side says ‘civil liberties have to be retained in their pristine form,’ ” Stern said. “There’s got to be some way of protecting both interests.”

According to Dershowitz, Israel has achieved a balance that the United States should emulate.

“Part of the purpose of this book is to make the case that Israel’s fight against terrorism has been an imperfect model,” Dershowitz said. “Israel gets a good solid B+” in responding to terror and protecting civil liberties.

“I make the argument that there’s no country in the history of the world that has demonstrated more concern for the safety of civilians,” he said.

Still, he writes, “what may be right for Israel — or any small country facing terrorism — may be wrong, or not quite as right, for the world’s most powerful and influential nation.”

An outspoken Democrat, Dershowitz had harsh words for the Bush administration.

It’s “still in the pocket of the gun lobby, so it won’t do anything to stop terrorism that the National Rifle Association will disagree with,” he said, including giving the FBI access to background checks of gun purchases by noncitizens.

The administration also is “perfectly willing to take rights away from Muslims” by harassing airplane-bound Arab Americans, rather than limiting everyone’s rights with national ID cards, Dershowitz charged.

Dershowitz also blasted the Bush administration for having “vacillated back and forth on whether or not organizations like the PLO are terrorist organizations.”

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