Re: Alan Dershowitz On Whether To Prosecute Executive Branch Criminals.

October 7, 2008

Re: Alan Dershowitz On Whether To Prosecute Executive Branch Criminals.


Over the years this writer has occasionally made comments relating to Alan Dershowitz. As said before, one’s first conception of him was encapsulated in the joke that the most dangerous place to be in the entire world was between Dershowitz and a television camera. Subsequently, after seeing him on television debates, I became convinced -- and still am -- that Dershowitz is one of the brilliant legal minds of our generation.

From time to time, people would send me emails asking me to criticize Dershowitz, and/or assailing me for not criticizing him, because of his conduct in the Finkelstein matter and because, it is claimed, he plagiarized in a book on Israel. I never wrote about those things because I never knew enough about them, and still don’t.

Now Dershowitz has written on a subject about which I am reasonably knowledgeable (and has spoken on it in a debate). Genius though he may be, I disagree thoroughly with what he wrote and, therefore, shall discuss his views -- including the way he has expressed them in writing and orally.

* * * * * *

On September 13th and 14th a conference was held in Andover to discuss crimes committed by the Bush Administration in its war on terror and to lay plans to try to do something about it. The plans include efforts to try to obtain prosecutions against legally culpable individuals like Bush, Cheney, Addington, Yoo and other high level criminals. One of the panelists at the conference was the rather eminent British law professor, lawyer and author Philippe Sands, of University College, London. Sands has written a most pertinent book, called The Torture Team, about the criminal conduct of certain high level American officials. Two days after the conference, on September 16th, Sands was scheduled to, and did, debate Dershowitz on the torture question at the Harvard Law School. One day before the conference, on September 12th, Dershowitz published an op ed piece in the reactionary bible, The Wall Street Journal, saying that there should not be prosecutions. No doubt, the Journal, one of whose editorial writers has insisted to me that the U.S. does not commit torture, was only too happy to print Dershowitz’s piece.

There were those who thought the date of Dershowitz’s op ed -- one day before the conference and four days before his debate with Sands -- was, shall one say, odd, suspicious. Ostensibly, the timing of the op ed occurred because Joe Biden, echoing Obamian remarks in April, had “recent[ly]” indicated the possibility that an Obama administration might pursue possible criminal offenses by the Bushites. But whether Biden’s remarks were the casus belli for Dershowitz, whether the casus belli was that the idea of prosecutions seems to be in the air now, or whether the upcoming debate with Sands fixed Dershowitz’s intelligence around his policy (to paraphrase the infamous by a double entendre), is impossible to know.

I have now watched the debate between Dershowitz and Sands. (A video was subsequently made available on the internet by Harvard and, since I don’t use a computer, our people made a DVD for me to watch.) There were some things that were so striking that they shall be discussed here before discussing Dershowitz’s pitiful article. Indeed, a few of these striking matters bear on the article.

Dershowitz’s personal deportment was sometimes awful. It was sometimes a caricature of a certain ethnic and geographical canard. One had to see it to believe it, and anyone who doesn’t believe me can view the approximately one hour and forty-five minute debate for himself or herself at http://www.law.harvard.edu/programs/plp/pages/events_archive.php#sands. Dershowitz was totally intolerant of opposing views and assailed the good faith of opponents. At times he vigorously interrupted his opponent and persons who at the appropriate time were asking questions or making statements from the audience. He seemed very defensive, often seemed unwilling to let other people have their say, and his conduct was such that the moderator, who was himself from Harvard Law School, had to tell him on several occasions to calm down, to stop, or whatever the moderator may have said to him. It was an amazing public performance.

Dershowitz also took umbrage -- umbrage is the only word for it -- at what he claimed were misunderstandings of and misuse of the position he took on torture early- on. He was especially incensed that torturers might have said, and others might say, that torturers had gotten mental and/or psychological succor from what he wrote early-on in the game.

Whether Dershowitz is right in claiming that his work has been misconstrued seems to me an arguable question. In part the answer could depend on whether one focuses on certain “literalities” (so to speak) rather than other statements, and whether one considers implications and underlying presuppositions that ordinary readers might find even in the “literalities” he wishes to focus on. But beyond all this, that Dershowitz could not have understood in advance what ordinary readers might find in his various types of statements seems to me to credit Dershowitz with a stupidity he does not possess. Dershowitz does seem, as Sands said, to have a detached relationship to fact; he appears to be in stridently-expressed denial of the fact that torturers could have found succor in his work. Nor, I may say, did others who were in the room with him at Harvard and who spoke up, including some quite brilliant people, seem to find it so strange or impossible that torturers and their supporters had been succored by his writings.

Dershowitz also insisted on focusing extensively on the ticking time bomb scenario of which he seems to have been an intellectual pioneer shortly after 9/11. By now, of course, the whole torture question has gone worlds beyond that unreal, lawyers’ hypothetical used by many to justify torture more broadly (although Dershowitz claimed there had been ticking time bomb scenarios in Israel). True, Dershowitz often discussed matters far beyond the limited, unreal ticking time bomb scenario. But that he nonetheless focused on it so much, and would often return to it though the actual real-world facts have moved so far beyond it, seemed -- dare I say it? -- very defensive, just like his unwillingness on various occasions to let other people talk without stridently interrupting them. (I think stridently is a fair word. If it isn’t, vigorously surely would be.)

Then there was Dershowitz’s strident (again a fair word, I think) insistence that he can be blamed for nothing because he is not a preacher, but is rather a Harvard professor whose job is to analyze the world as it is, to bring people to see the complexities of the world as it is instead of viewing it in their simpleton ways, to cause people to think, and, if the audience doesn’t like it, they shouldn’t be at Harvard. The performance put me in mind of Larry Summers’ infamous comments about the abilities or inabilities of women. Summers too was supposedly just raising the question, just setting the possible truth before the intellectual heathen blinded by their left wing prejudices, etc. Dershowitz’s performance was also ironic, since he insists he is an analytically minded Harvard professor, not a preacher, yet his style has on other occasions reminded me of nothing so much as the rabbis I sometimes used to hear as a little kid.

But beyond being Summerian (not Sumerian -- that would be Iraq or Iran or somewhere), and beyond being ironic, Dershowitz’s very vigorous insistence that he was always acting the part of the analytical Harvard question-raiser seemed -- dare I say it yet again? -- very defensive. I suppose a shrink might say it evinces being in denial of the possibility that his (Dershowitz’s) work could have been relied on by torturers.

Of course, I’m not a shrink, so I can’t really know. One thing that seemed clear even to an ignorant layman, however, was that Dershowitz’s performance -- pretty much throughout -- was of the “It’s all about me” variety (as in “Well, enough about me. Let’s talk about you. What do you like about me?”). He wanted to talk about a ticking time bomb scenario which he apparently pioneered, even though it’s quite irrelevant to almost all, or absolutely all, of what happened. He was misunderstood and misconstrued by both sides. He is against torture in reality. He is a Harvard professor and it is his job to bring analysis, complexity, and truth to the ignorant heathen, including the ignorant simpletons at Harvard. He is the one who should be talking, not others, he is right, and he should not be misunderstood, so others can be vigorously interrupted when they threaten this trinity.

And withal, his brilliance was on display, his exceptional verbal facility, his ability to deal with concepts, his Stengelesque ability to bring in points or analogies others might not even dream of, his ability to bring in facts in rapid-fire fashion -- although some people thought he got facts wrong and Sands even said at one point that Dershowitz had a detached relationship to the facts. Dershowitz’s brilliance -- as well as his obviously gigantic ego -- was on display in a perverse cause, and, one might even say, he was too brilliant by half.

Now let me turn to Dershowitz’s op ed piece in The Wall Street Journal, to which some of the foregoing relates.

Near the beginning of his piece, Dershowitz concedes the need to preserve the idea that ‘“no one is above the law.’” But what he gives with one hand, he immediately takes away with the other. For there is a “countervailing principle . . . that is equally important.” It is that “the results of an election should not determine who is to be prosecuted.” (Emphasis added.) “These principles,” he says, “inevitably clash when the winners of a presidential election investigate and prosecute the losers.” The clash exists “even if the winners honestly believe that the losers committed ‘genuine crimes’ rather than having pursued merely ‘bad policies.’” For the prosecution will almost surely be seen as “‘a partisan witchhunt.’”

So . . . . Dershowitz says we must have a rule of law, but not when the culprits (or their stand-ins) lose an election. That’s some rule of law, right? And why should there be no rule of law -- no prosecutions -- if the culprits (or their stand-ins) lose the election? Because there wouldn’t be any prosecutions if their side won it. The winners can’t prosecute the losers because the losers, had they won, would not prosecute themselves. Again, that’s some rule of law, huh? Ya gotta love it, don’t you?

Let us now put the matter in the concrete context of the current election. Dershowitz’s point is that, if Obama wins, an Obama administration shouldn’t seek prosecutions of Bushites because, if McCain wins, a McCain administration (presumably) wouldn’t seek them. But how about turning the matter around, as law students learn to do in their very first week of law school. Why couldn’t we equally say that, if McCain wins, his administration should consider and, if the facts warrant, bring prosecutions because, if Obama wins, his administration would consider, and if the facts warrant, bring prosecutions? To put it simply, if a surmise as to what one of the two administrations might do is to control action, then why shouldn’t the controlling surmise be what Obama would do rather than what McCain would do? This is only the more true because, as I’ve often discussed elsewhere, the rule of law, accountability for horrid criminal conduct, and what future presidents might do are all likely to depend on Bush, Cheney and Co. suffering criminal punishment if they have committed ghastly crimes, as so many of us think true beyond honest dispute.

In jurisprudential terms -- which surely are not familiar to most laymen -- the question relates to the doctrine of so-called neutral principles of law, a doctrine that was a major bone of contention in the early 1960s. Ignoring that the facts of an initial case might cause one principle to be adopted rather than another, the doctrine held that neutrality requires that the adopted principle must nonetheless be applied in a subsequent case which might have quite different facts. It ignored also that, if the second case had come first, a very different principle might have been adopted in the first place because the facts were so different. Dershowitz’s logic is analogous to the now discredited neutral principles theory (which Richard Posner once demolished absolutely). Dershowitz is trying to persuade laymen unfamiliar with legal legerdemain, with which he has been intimately familiar for over 45 years, that because McCain (presumably) would not prosecute, Obama shouldn’t, and he is deliberately ignoring that one could reverse it by saying that since Obama would prosecute, McCain must also.

For one of Dershowitz’s brilliance to ignore this almost has to be deliberate -- he cannot be completely unaware of it because to urge such lack of awareness would again credit him with a stupidity he does not possess. What he has done simply fuels the fire of those who say he arrives at positions and then finds or invents alleged reasons in support later.

It is “interesting” -- that’s a nice word for it -- that Dershowitz claimed at the debate to be, so to speak, the great “complexitor” bringing life’s complexities and deep analysis to the unenlightened simpletons of Harvard, yet he chose to ignore the simplest of complexities: chose to ignore that you would get the opposite result if you simply employed the opposite logic that Obama would prosecute to uphold the rule of law, so therefore McCain likewise should prosecute. So much for the self-professed avatar of complexity and sophisticated analysis.

To support his position Dershowitz says that a prosecution will inevitably be seen as political partisanship because in our system, unlike others, the Attorney General is both the chief law enforcement officer and a political adviser to the President. What he is saying defacto is that the framers set up a system in which even arch criminals in the highest office cannot be prosecuted subsequent to holding office. This might be real news to the framers, who not only wanted law to rule, not kingly tyranny, but who specifically provided that an official can be prosecuted after being convicted and impeached, a prosecution that necessarily would have occurred in a subsequent administration if it were a president who was impeached. The Dershowitzian idea that the Constitution has established a system under which serious crimes cannot be punished, and serious criminals therefore go scot free, is, to put it mildly, bizarre. And from the complexitor analyst of Harvard yet.

Nor can Dershowitz admit that a special prosecutor could do the job. “These ersatz functionaries bring problems of their own to the criminal justice process,” he says, “as evidenced by the questionable investigations that targeted President Bill Clinton, vice presidential chief-of-staff Lewis ‘Scooter’ Libby (full disclosure: I consulted with both of them, without fee, about their cases) and others over the past decades.” One would think Dershowitz never had heard of Archibald Cox or Leon Jaworski, who were special prosecutors when serious crimes were at stake, as now, instead of trumped up nonsense as in the Clinton matter. One would think him a naif unaware that politicians did everything they could, successfully, to destroy or evade or minimize the efforts of other special prosecutors, destructive conduct that should be excoriated and beneath contempt in the present case. As for the Libby case -- where Fitzgerald roared like a tiger but brought forth only a mouse (and venal Cheneyian politics almost surely got involved to limit the results, consequences that history likely will reveal far more fully) -- it is frankly preposterous to call the investigation “questionable,” an adjective that partisanly reflects Dershowitz’s “consult[ation].” As well, one hardly knows what to say about the fact that Dershowitz made sure to tell us he consulted with Libby (and Clinton) “without fee.” Are we supposed to think he felt so strongly that out of principle, not publicity seeking, he consulted at a big financial sacrifice? Such thought comes hard when one realizes that, as far back as the O.J. Simpson case in 1994 -- when lawyers’ fees (high as they already were) were much lower than later -- it was reported that Dershowitz was being paid between 400 and 650 dollars per hour. One can only wonder what his hourly fee must be today. One is not impressed with an implicit claim that out of principle (not publicity seeking) he sacrificed financially for Clinton and Libby.

Dershowitz goes on to claim (in the words of a question he puts) that there is “too great a risk of criminalizing policy differences” when a subsequent administration prosecutes members of a prior one; a risk that will have “a chilling effect on creative policy making and implementation.” To prove his point he says that a “politically appointed prosecutor, imbued with partisan zeal, could find technical violations of the criminal law in some envelope-pushing policy of virtually every administration.” Then, clearly attempting to warn us by the example of the notorious Beria while pretending not to be doing this, he says “One does not have to be as ruthless as Laventri Beria -- who infamously assured his boss Joseph Stalin ‘show me the man and I’ll find you the crime’” in order to find a basis for a prosecution. “Even the most well-intentioned and honorable partisans,” continues Dershowitz, “may see ‘genuine crimes’” by their political opponents where in fact there is “nothing more than ‘really bad policies.’”

Dershowitz’s argument is in a crucial way “fact free.” For it ignores the actual facts of the situation and is couched in abstractions only. He has to do this because the actual facts devastate his argument. (Dershowitz thus has to pull another lawyer’s trick -- the trick of arguing abstractly -- because the actual facts are so devastating to his point. In this connection, there is an old saying in the law that you should argue the facts, but if you don’t have the facts, argue the law, and if you don’t have the law, baffle them with bullshit.) For we are not dealing here with mere technical violations, or Beriaesque invention, or possibly desirable “creative policymaking.” We are dealing, rather, with outright serious crimes banned by numerous international and domestic conventions and statutes, with crimes whose ban is an outgrowth of the Nazi era that Dershowitz reviles (as he did at the Harvard debate). We are dealing with extensive torture, with murder -- murder by the scores apparently, with savage beatings of prisoners, very likely with aggressive war that has resulted in scores or hundreds of thousands of deaths and at least as many horrible injuries, with imprisoning and holding incommunicado for years people who often were innocent. Torture, murders, aggressive war, savage beatings, holding innocent people incommunicado for years -- these are mere “technical violations”? These are desirable “creative policies” which should not be “chilled”? These are Berian inventions of crime?” I don’t think so. These are the essence of serious crime. Dershowitz’s effort to ignore the actual facts is pitiful. It is not only pitiful, but is also a rejection of Nuremberg, though Dershowitz would of course feel forced to deny this.

It is, additionally, an example of yet another lawyer’s trick. By bringing up, in the abstract, possibilities of future mistakes or of going too far in the future, while ignoring what the actual facts of the present are, Dershowitz seeks to obtain immunity for clear, actual present crimes by bringing up hypothetical possibilities of punishing people wrongly in the future for conduct that isn’t clearly criminal. This kind of logic, employed all the time by lawyers, is the kind of argument that lawyers call a “parade of horribles.” Dershowitz thus posits that those who might at a trial be found horribly guilty of atrocious crimes now should not even have to face trial lest some hypothetical person be tried in the future for conduct that may not be a crime. That logic, of course, if widely employed, would be the end of all criminal law. Nobody could be tried for clear crimes now lest someone be wrongly tried in future.

Dershowitz also claims there should be no prosecutions because Congress could investigate, impeachment is available “[i]n extreme cases,” and culprits can be voted out of office. Once again, Dershowitz is fact free. For Viet Nam and Iraq have taught us, to our consternation, that these supposed remedies are pretty much useless. This needs no elaboration, I’m afraid.

Somewhat strangely, near the very end of his article, after lengthily reviling prosecutions, Dershowitz admits that there can be instances where prosecutions would be alright: in the “extremely rare situation” where the existence of criminal intent and crime are “so apparent to everyone” -- to everyone, mind you -- that no reasonable person would suspect partisanship. There is likely to be, of course, no such situation where the existence of crime is universally seen to exist and suspicion of partisanship therefore nonexistent. There are always people -- tens and scores of millions of people -- who see horrible acts as permissible, or at least as well intentioned if misguided efforts not deserving of punishment. Such is the case with Bush. Such was the case with Nixon. Such was the case with unrepentant Germans in 1945 and 1946. (To Dershowitz, perhaps, the views of Nixonites, and of Germans who (correctly?) suspected victor’s justice, made them unreasonable in suspecting partisanship. But forms of political partisanship were present at Nuremberg and such partisanship would have existed in support of prosecuting Nixon. Nonetheless what was, or would have been, criminally prosecuted also were crimes. And one wonders -- does Dershowitz claim there is prosecution-preventing partisanship when Israel puts Arabs on trial for blowing up or otherwise killing Israelis? Why does one doubt it?)

Dershowitz closes his article with one of his “it’s all about me” remarks, of the kind that were so prevalent in the debate with Sands. He says that he will vote for the Obama-Biden ticket and, so doing, “I will try to persuade them, if they win, not to conduct criminal investigations of their defeated opponents.” “I will try to persuade them” (emphasis added) as if they necessarily must be looking for his advice or at least should be looking for it, just as “I consulted with both [Clinton and Libby], without fee, about their cases.” [Emphasis added.] There seems no end of ego, does there? And this from a fellow who, brilliant though he is, seems not to care that his position destroys Nuremberg, at least in American courts, destroys the rule of law and accountability, and often relies on mere lawyers’ wiles.

One can hardly help suspecting that, for all his bluster at the debate about having been misunderstood, about being against torture, about the justifiability of his ticking time bomb scenario, about this and that, Dershowitz may be deeply concerned over the fact that he is one of those who has received blame for the torture that occurred, and might receive ever more blame in the future as the ideas which motivated people at Guantanamo become ever more known.

Could there even be concern over being a possible defendant? That Dershowitz could possibly be a defendant is an idea I would think very unlikely, and positively wrongheaded unless it somehow were to turn out that he did not confine himself to writing and speaking publicly about torture, but instead, like Henry Kissinger secretly sneaking into the White House to advise Bush, had also consulted secretly with the government to urge the permissibility of torture. But as far as I know, there is absolutely no evidence that Dershowitz did this. Naif that I may nonetheless be, I cannot see that Dershowitz (unlike Yoo or Goldsmith) did anything of significance that warrants a fear of prosecution. I thus suspect his concern arises solely from receiving blame for being one possible intellectual godfather of what occurred, however fair or unfair such blame may be.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@VelvelOnNationalAffairs.com.

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