Ramifications Of The "Debate" Between Alan Dershowtiz And James Zogby

August 9, 2006

Re: Ramifications Of The “Debate” Between
Alan Dershowitz And James Zogby.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

Last night, on Larry King live, Alan Dershowitz and James Zogby had what passes for a debate on television. Each had their strong and weak points, including certain types of conduct that one abominates (e.g., vigorously shaking one’s head negatively as the other speaks, vocally interrupting the other). But at the end of the day (or the ten minute or so segment), it was pretty obvious that one point, previously adverted to in this blog, remained without a satisfactory answer. Nor have certain correspondents of this blog, notwithstanding their sheer brilliance and knowledge of law, provided what I would consider a practicable answer (as opposed to a theoretical one).

The difficult question remains this: what do you do when an enemy uses the population as shields in one way or another -- when it lives among them, fires from among them, sometimes deliberately places them where they could get killed, or even physically hides behind women and children and babies. This is a question we have, I gather, often faced in Iraq, that we faced in Viet Nam, and that apparently exists in every guerrilla war. Dershowitz’s answer is that you are forced to reluctantly kill the civilians. Otherwise the guerrillas will kill you with their rockets, etc. And this so-called asymmetrical kind of warfare is a type the democracies will increasingly face -- especially from Muslim fundamentalists, one supposes -- so that it will wreak havoc on the democracies if our morality forbids us from firing at the enemy because civilians are mixed in. I think I’ve got Dershowitz’s views right; if not, maybe someone will tell him so that, if he wishes, he can respond and tell me I’m wrong.

Zogby’s view seems to be that you are not to fire or bomb when your weaponry will kill the civilians. I think I’ve got his view right. If not, maybe someone will tell him to respond to me to say I am wrong.

Both of them -- as people often do, even usually do -- seem to admix what could be called a matter of pure principle with contextual claims, here contextual claims about who really started or is responsible for this war. Implicit in this is the claim that responsibility for the war determines the justifiability of shooting or bombing when civilians may be killed (conceivably a dubious proposition in either direction). Thus, contextual questions such as whether the Lebanese government bears major responsibility because it gave Hezbollah a free pass for several years. (Could it have done otherwise, one might equally ask, without getting its own head chopped off, just as the Syrians had Hariri killed? Is this nonetheless no excuse? Etc.)

Now, I am not wholly confident of my own answers to the relevant questions of principle and context. (I am certain only that any answer will draw howls of outrage.) But I do have some views that, one thinks, could conceivably bear consideration. Maybe they are wrong, but until that is definitively shown, they do, one believes, bear thinking about:

1. It could be thought that the kidnapping of two soldiers should not have led to fighting of this magnitude. Yet the media and the public seem to ignore the fact -- or what I gather to be the fact -- that rockets were regularly being shot into Israel for quite awhile prior to the kidnappings. All those Americans, especially leftists, who excoriate what Israel has done, might ask themselves what they think the United States would do if, say, Mexico were to constantly shoot rockets into the U.S. (Remember the expedition we sent after Pancho Villa after his raid on Columbus, New Mexico? Remember how we nearly started World War III because there were rockets in Cuba that could have been fired against the United States? Remember what we recently did in Afghanistan?) I would put it to you that, as after 9/11, America’s military reaction would beggar Israel’s.

Maybe opponents of what Israel has done would respond that they think America would be doing wrong -- and in the past did wrong -- and that our wrongs don’t make Israel right. If so, I can only suggest, in the words of the old saw that is both figuratively and literally applicable, “Tell it to the Marines.” Right or wrong, we did it and no person who knows anything about this country can doubt we would do it again. Israel’s response is small potatoes in comparison.

This, by the way, is a matter of “context” that one does not hear or see in the media.

2. It is obvious to all that Iran and Syria are the countries basically responsible for what is going on. Still, the government, nation and people of Lebanon must also share major responsibility. For they at minimum tolerated, and to an extent -- a very great extent? -- encouraged the growth of Hezbollah in their midst. People who participated in the Lebanese government in these circumstances are especially culpable.

Those who rail against Israel might remember that we took out (or arranged for the taking out) of the entire Taliban government because it harbored Al Qaeda. I do not see the Lebanese government as being any different than the Taliban in this respect (another point of comparison that one does not hear or read in the media).

There is a serious need to impose some form of serious liability when governmental figures knowingly harbor groups that would wreak armed havoc in other countries -- personally, I would say that, if other nations can get their hands on such figures, they should be clapped in irons for the rest of their (un?)natural lives or put up against the wall.

This question of the responsibility of governments and peoples for the evil they allow to occur -- a principle which includes but is not limited to harboring the Al Qaedas and Hezbollahs (and Hamases) of this world -- is, of course, a two-edged sword, a point I would applaud. It would mean that people in the Eisenhower and Kennedy administrations would be liable for harboring and training the Cuban exile brigade that attacked Cuba at the Bay of Pigs. Amen to that. It would also mean that Americans in general, not just executive branch officers and lots of legislators, bear responsibility for the disastrous atrocity of Viet Nam and for the disastrous abomination of Iraq II, the more so because Americans have political freedom and the vote, yet did not remove the executive and legislative people who fostered these atrocious and wrongheaded wars. As far out as one might think it to say so, it is unlikely that we will ever put an end to war until we start seriously punishing those who are responsible for wrongheaded and/or evil ones. (I assume here the concept of just war -- not everyone would admit to such a possibility, one thinks.) There is a reason why Bush, Cheney et. al. do not want there to be international criminal courts: they might be among the first in the dock. They would, of course, be closely followed by Assad and the other nuts in Syria and by Ahmadinejad and his wacked out colleagues in Iran who want to wipe Israel off the map.

3. There is the question of the U.N. In terms of peacekeeping on the ground, it is, I suspect, pretty much a serial failure (like Bush in business and government). To allow the Arab countries and those here and elsewhere who agree with them to bully us into using a UN force -- as opposed to, say, a multinational one run by governments -- to keep the peace in southern Lebanon in the future would be, in terms Americans can understand, like trying to turn an habitually losing college football team into a winning one by hiring a coach with a lifetime record of winning 20 percent and losing 80 percent of his games. It is nuts or, in the case of the UN, at least semi-nuts.

4. The civilian casualties of rockets and bombing. At least until the last few days, the American media (took care to?) show mainly the Lebanese casualties. This contrasts dramatically, by the way, with our media’s years-long failure to equally show the civilian casualties of American bombing and artillery in Iraq, casualties which apparently are in the many thousands or tens of thousands -- far higher than those caused by Israel. I do not think the discrepancy is wholly fortuitous. When one shows the civilian casualties, one is liable to turn viewers against the nation or group inflicting them -- as has occurred in the present war in Lebanon. The American media won’t risk this with Iraq; it has been scared to death to do things, like regularly showing the horrible Iraqi civilian casualties we cause, that might cause it to suffer retribution from the Executive (not to mention some of the Executive’s nutbag henchmen in Congress). The media have no such fear of Israel.

So the media have shown the Lebanese civilian casualties from the beginning, thereby turning people against the Israelis, but have shown Israeli civilian casualties only to a far lesser extent (although there clearly have been such casualties, albeit many fewer because Hezbollah’s thousands of rockets are not as effective at killing people as Israel’s aircraft and artillery). And, showing Lebanese casualties, the media too often ignores the whole background and context of what led up to this war. It is needless to say, I presume, that the American media, especially the electronic media but also much of the print media, is usually quite inept when it comes to background and context. (And, apart from this, it sometimes does not even seriously cover major horrid events. Darfur, anyone?)

5. Then there is the fundamental, so far not satisfactorily resolved question, on which Dershowitz and Zogby took different sides: what do you do when the enemy hides among, uses as shields, and fires at you from among the civilian population? Personally, I don’t think there is yet a satisfactory practical answer to this question.

A nation cannot allow its safety to be jeopardized in this way. This is only the more true of a nation like Israel, which lives with memories of the holocaust, which the rest of the world, particularly including Britain and the United States, did not lift a finger to stop, though they knew what was going on. Opponents of Israel like to forget these inconvenient facts and, indeed, revile those of us who remember them, excoriating us precisely because we do remember them. The opponents see Israel as now being some mighty force, or at least they claim this, forgetting and ignoring 2,000 years of history that Israelis (and Jews everywhere) live with. A nation which feels threatened will believe there are circumstances -- broad ones, one fears -- that necessitate what military people and their supporters like to soften by the phrase “collateral damage.”

The weak of the world, on the other hand, those whose only weapon is so-called asymmetrical warfare, say that such guerrilla tactics (plus suicide tactics) are all they have.

This situation presents a true conundrum at present, unless one takes either the extreme position that democracies (and others) must allow themselves to be harmed, conceivably even destroyed, because they cannot respond to such tactics if the response would kill civilians, or the equally extreme position that killing civilians is just an unfortunate aspect of what we are facing and what we must therefore do. Whatever the supposed solution to the conundrum that may exist in theory, I have not yet heard one that is practicable in fact -- that is practicable when Hezbollah or Hamas or Al Qaeda is firing at you from inside or right next to a building occupied by civilians, has established a headquarters or arms dump in such a building, has its leaders live or hide there, or is using women and children, even babies, as human shields.

All of this has been faced by the U.S., Israel, or both. Even worse, it might get far worse before it gets better if, as some claim, we are facing, God forbid, a clash of civilizations, a horrid possibility that one does not wish to believe but that increasingly begins to look possible as the wild men of Syria and Iran increasingly assert themselves (and Pakistan too, one fears), not to mention the guerrilla groups that are asserting themselves.*



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* * This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

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