"HISTORY ISN'T a court of law"--or so I insisted to Alan Dershowitz last week in a conference room at Harvard Law School. Dershowitz didn't strenuously argue the point, as I expected. He gave no sign of turning into the firebrand his wife calls "the Dersh character," famous for sarcasm and bad manners in public disputations. The Alan Dershowitz I met smiled graciously, and waited for me to go on.
I did so by referring to the comparison he made in "Chutzpah" (1991) between Palestinian refugees and city dwellers forced to relocate by the ordinary processes of urban renewal. Whatever weird sense that might make in some court of law, I said, it made no sense when it came to the dynamics of history. Dershowitz agreed, surprisingly, informing me that he'd learned a lot about Palestinian suffering since "Chutzpah," and that he has always opposed Israeli occupation of the West Bank and supported a two-state solution.
Clearly, though, not everyone finds him as genial as I did. Because of death threats from various quarters, visitors must dial in to his office and identify themselves to gain admission. And "Preemption" (Norton), his new book, shows why even those who bear him no mortal grudge might find him terrifically annoying.
Dershowitz confronts the dark sides of legal practice. He has argued, for example, that it would be better to recognize and regulate torture than to allow it to be applied covertly and inconsistently. "Preemption" argues similarly that in an age of suicide bombers and WMDs we have no choice but to talk openly about awful subjects such as targeted killings and the whys and wherefores of preemptive war.
Whether you agree or not, it's hard to deny that his arguments are based on reason. The only glimpse I got of the "Dersh character" came as I was leaving. He had bet a colleague about some minor matter and, though proven wrong, I saw him go on arguing. "Alan," his colleague chided him, not at all mollified by the fact that Dershowitz now owed her a very expensive lunch, "you just can't stand not being right, can you?"
IDEAS: According to you, the Iraq war has given the whole subject of preemption a bad name.
DERSHOWITZ: Absolutely. People tend to look at the last historic event and make broad judgments based on it. And the war in Iraq is a bad war.
IDEAS: So why focus on preemption now?
DERSHOWITZ: 9/11 showed that we are being attacked by people we cannot deter, because they're not afraid of dying. Besides, a rational person can't be against preemption--or for it. You have to pick carefully. For example, Israel was correct in launching preemptive war in 1967, wrong for doing so in 1982 in Lebanon.
IDEAS: People would rather leave some things moot, but you make a habit of prying into the judicial subconscious.
DERSHOWITZ: Making people uncomfortable is the role of an iconoclastic professor. I tell my students I'm going to make them challenge every idea they hold dear, shake them to the core on every one of their views.
IDEAS: What about the statistical approach you take to moral questions, when you try to quantify whether a given preemptive action would do more harm than good? People, as a rule, are not keen on probabilities. We prefer our absolutes.
DERSHOWITZ: Rights and laws are human inventions. Why not look at the consequences, the benefits? I want to force human beings to think hard about statistics and probabilities. That's why I love the story about Abraham and God arguing about the destruction of Sodom. How many good men must there be to spare the city? Is 50 necessary? Will 10 do?
IDEAS: How well do you think Steven Spielberg's "Munich" deals with preemption?
DERSHOWITZ: "Munich" confuses revenge, prevention, and deterrence. And it fails to acknowledge that when Israel authorized the killing of the terrorists Israel thought it was hopeless to count on European deterrence, and had to go on its own.
IDEAS: But Spielberg's point is that the preemption failed. Killing the terrorists just spawns more terrorists.
DERSHOWITZ: Spielberg is wrong. Even during the most recent intifadah, Israel prevented thousands of acts of terrorism by target killings and arrests. I'm in favor of targeted killing of terrorists, if it can be done without collateral damage.
IDEAS: You don't believe that violence just begets more violence?
DERSHOWITZ: Think about what preemptive violence against Germany in 1935, say, would have accomplished. Selected violence is a necessary evil but sometimes produces a good result.
IDEAS: Why do you quote so often from the Talmud in "Preemption"?
DERSHOWITZ: Everything in Talmud is a matter of argument, and dissenting opinions are preserved forever, whereas most religious traditions eliminate dissenting views.
IDEAS: Are you an observant Jew?
DERSHOWITZ: I'm a secular Jew. I have a nostalgic taste for tradition, partly a result of growing up in Brooklyn. But I live my life as if there were no God. The existence of God would interfere with my morality.
IDEAS: You'd be bothered if there were a God?
IDEAS: Obviously, you don't think religion necessary for morality.
DERSHOWITZ: Quite the opposite. You need not to have religion to have morality. Morality based on religion is often no morality at all. If you do it because of heaven or hell, or because an instruction book told you to, it's not morality. It's morality when you have decided yourself, without benefits or threats, that this is the right thing to do.
IDEAS: I think of the Alan Dershowitz of celebrity cases, Von Bulow, for example...
DERSHOWITZ: You make a lot of money in those cases...
IDEAS: Mike Tyson...
DERSHOWITZ: Tyson was innocent! That's one of the worst miscarriages of justice I've ever experienced. I took that case because he was falsely accused.
IDEAS: Still, isn't there a distinction between the Dershowitz of celebrity cases and the Dershowitz who takes moral stands.
DERSHOWITZ: No. I told Von Bulow I was going to charge a lot of money, because I had several pro bono death penalty cases going. I see my life as an integrated whole-half my cases are pro bono, half for very high fees.
IDEAS: Why are you considered so controversial?
DERSHOWITZ: I don't know. I don't love conflict. But I do say what I think. And I'm willing to jump on unpopular bandwagons.
People say, how can you defend Lawrence Summers, even after he resigned, which I did? What's in it for you?
I think Summers's problem was largely a question of style. He's very confrontational. He argued with me a lot. I was furious when he allowed the military to recruit on campus with its antigay policy and publicly called him a coward. He phoned me, and we shouted at each other.
I told him he was full of [expletive]. He appreciated that.
Plus, he preemptively resigned.
IDEAS: You can't fire me, I quit?
DERSHOWITZ: A silly version of preemption.
Harvey Blume is a writer based in Cambridge. His interviews appear regularly in Ideas. E-mail firstname.lastname@example.org.©