Preemption: A Knife That Cuts Both Ways

by Alan M. Dershowitz
275 pages,
ISBN: 0393060128

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Preemption and the Law
by Ron Stang

Preemption has become something of a dirty word in the wake of the Iraq War. After all, wasn't preemption the reason given by the United States and Britain for leading other members of the Coalition of the Willing to invade Iraq in 2003, with the notion of preventing Saddam Hussein, allegedly working with terrorists, from launching an attack with weapons of mass destruction?
If there is one country that has almost written the modern day book on preemptive actions it is Israel, certainly a pariah, rightly or wrongly, among numerous countries, for its myriad approaches to this type of activity: limited invasions of nearby countries, targeted assassinations of terrorist leaders, occupation of neighbouring territories to serve as defensive buffers, use of a labyrinth of checkpoints and its controversial security fence to control movement of Palestinians, and the latest, its war on Hezbollah in Lebanon.
In the wake of September 11th, Western countries such as the United States, Britain, and even Canada have come under fire for their new policies of preventive detentions (the rounding up of people believed to be involved with terrorists) without benefit of the constitutional rights normally afforded under the criminal justice system. The list of preemptive actions by governments is long, including ethnic profiling, restraint on free speech, increased surveillance, and tighter border controls. All have been used increasingly, especially in the wake of 9/11, by nations who fear terrorism of new and more sinister kinds. Preemption has been decried for many reasons, but two central ones stand out: it goes against the grain of the West's (moral) legacy of waging war only after being attacked, and for its violation of the near-sanctity of our legal system's principles of due process.
Into this murky but vital debate enters the well-known Harvard law professor, Alan Dershowitz, a liberal and civil libertarian who nevertheless has drawn controversy over his uncompromising support for the state of Israel, and, more recently, for advocating limited use of torture to extract information from terrorist suspects, particularly "ticking bombs" or people who have crucial information about an impending act of terrorism.
Dershowitz, like many decision-makers in Western governments, or even Eastern ones like Russia, which has had to deal with Chechen terrorists, soberly concludes that as the future unfolds the danger to civilians from terrorism will grow, and could be more horrendous if chemical and nuclear weapons are employed.
Until now, the response of democratic governments has been ad hoc and inconsistent; they have acted blindly to some extent because of a lack of legal precedent. This has generated loud and vigorous outcries from the United Nations, other countries' governments, human rights groups, as well as from the Western public. Principally, Dershowitz suggests, this is because "we are doing all this and more without a firm basis in law, jurisprudence, or morality."
Preemption: A Knife That Cuts Both Ways, part of the Issues of Our Times series edited by Harvard's W. E. B. Du Bois Professor of the Humanities, Henry Louis Gates, is an attempt to address just that¨the need for a set of parameters, or, in legal terms, a "jurisprudence", for engaging in a wide range of preemptive action, such as wiretaps, border controls, targeted assassinations, detentions, and military incursions.
Dershowitz begins with some historical background. Preemption is not a new concept; it is "as old as recorded history. We have been practicing preemption and prevention for millennia." The Jews and Romans "acted in anticipatory self-defense against an imminent and certain threat of genocide and were praised for it." Even the British and American criminal law systems have long traditions of preemptive measures. During the 16th and 17th centuries English "conservators of the peace"¨forerunners to today's justices of the peace¨had wide powers to detain and incarcerate "dangerous persons" without trial. And in the United States, well into the 20th century, law enforcement had the power to detain suspect individuals until "the courts began to apply constitutional restrictions more aggressively" to the police. Indeed, even in the contemporary legal context there are all manner of preemptive court sanctions: from bond restrictions to conditions on a convicted person's probation to restraining orders in domestic assault cases to sex offender registries. The courts routinely issue injunctions against assemblies deemed provocative or dangerous. Criminal wiretaps also fall under this definition.
There has also been a substantial tradition of moral or philosophical support for preemptive tactics. Machiavelli, "not surprisingly," Dershowitz says, approved of the Romans for taking "action to remedy problems before they developed." But "more surprisingly", philosopher Thomas More "included preemption¨at least under certain circumstances¨as a tactic agreeable with the Catholic doctrine of just war."
The contemporary clash of opinions concerning preemption has been in the area of geopolitics. "The democratic world," Dershowitz writes, "is experiencing a fundamental shift in its approach to controlling harmful conduct. We are moving away from our traditional reliance on deterrent and reactive approaches and toward more preventive and proactive approaches."
Deterrence, based on mutual assured destruction (MAD), was for almost half a century the tactical model for relations between superpowers. But with the collapse of the Soviet Union and the rise of Islamic terrorist groups, enemies who do not fear death as we do, a new asymmetric paradigm has emerged, and the West has been left grappling to ascertain how most effectively to confront this unprecedented phenomenon.
Dershowitz spells out some models, which have had varying degrees of success, and explains how they adhere to the moral and democratic values of our civilisation. Chief among these has been preemptive war, which of course has been waged in Iraq. But perhaps the most successful example in contemporary times has been Israel's Six-Day War against Arab nations in 1967. When Arab armies gathered on Israel's borders, Israel didn't wait to be attacked. It attacked first, decimating the Egyptian and then the Syrian air forces, which eventually led to a wholesale enemy defeat. By striking first, Israel likely saved countless of its own people and perhaps the nation itself. Interestingly, that action was widely praised by world opinion, Dershowitz says, "because Israel was seen as an underdog surrounded by hostile Arab nations threatening its destruction." The Iraq War, by contrast, with its aftermath of ongoing insurgent and sectarian bloodshed claiming tens of thousands of lives, "may well demonstrate the dangerous potential for misuse of any doctrine of military prevention or preemption."
Another example of preemption is the smaller scale preemptive attack. Israel's missile strike against Iraq's Osirak nuclear reactor in 1981 is a prime example. The Jewish state, as well as others in the region (Iran had earlier failed in attacking the reactor), feared an aggressive Saddam Hussein could add nuclear warheads to his growing weapons arsenal. This time the world was split in its opinion, with some surprises. Senator Edward Kennedy, often considered a dove, praised the attack. Britain's conservative Margaret Thatcher condemned it. But Dershowitz lauds the strike for being a successful limited use of preemption and says it "demonstrated that preemption, if implemented cautiously, often carries the prospect of killing fewer innocent civilians than does deterrence." The Osirak attack, of course, could be a model as the United States and Israel ponder any attack against Iran's current nuclear installations to prevent a nation, led by a president who has said that Israel "must be wiped off the map," from acquiring nuclear warheads.
The reason preemption might be so controversial is due to what the author calls its "paradox." After all, one never knows what an outcome might have been had the action not been taken. Those who criticise the American invasion of Iraq might have reacted differently if weapons of mass destruction had been found. Indeed, says Dershowitz, prior to the Second World War, it was England's lack of action to disarm Hitler that is now regarded as "a paradigm of immoral and ineffective appeasement." And Dershowitz turns the table on liberals who decry military intervention in Iraq, Bosnia, or Afghanistan, yet have been the first to counsel intervention in sovereign nations over humanitarian crises, such as the current one in Darfur. "Self-defense is seen as hawkish or conservative," he says, "while defense of others is seen as dovish or liberal."
Dershowitz's arguments are sound and he should be praised for being among the first at the public podium to make them. A civil libertarian, it is unfortunate that his credibility has been somewhat undermined by his unwavering defense of Israel (as in his 2003 The Case for Israel) and by his recent comments on torture, which almost ostracised him from the liberal-left, the very people most in need of being convinced to support the realpolitik campaign against terror. This is the constituency most given to drawing ludicrous moral equivalency between Bush and Blair and Saddam and bin Laden.
The book has something of an academic feel to it with chapter subheadings like "The Injury or Harm Approach", or "Dual Systems of Criminal Justice: Retrospective and Preventive". These will make the book sound appealing to a professor or legalist, but other kinds of readers might feel differently. The same can be said for some of the writing: "What also becomes clear is that as with preventive incapacitation in the individual context, there is little in the way of an accepted jurisprudence or morality of anticipatory self-defense in the military context."
Furthermore, while the book's general argument comes under the title "Preemption", Dershowitz clearly parses the difference between what actually is meant by the words "preemption" and "prevention": preemption aims to prevent an "imminent" attack; prevention is an effort to stave off aggression down the road. Yet he often confuses matters by using the words interchangeably. Citing world opinion over the Osirak missile strike, he calls the action preemptive in one sentence and preventive in the next. In one paragraph he calls the detention of Japanese-Americans during the Second World War preventive and in the next preemptive.
Dershowitz makes a strong case for the concept of preemption as a legitimate tool in the kind of threatening geopolitical environment we face today. He argues for a jurisprudence based on philosophical as well as practical considerations. He discusses the nature of threats, the most appropriate way they should be countered, the risk of faulty intelligence resulting in "false positives" (Iraq is an example), and the moral cost of collateral damage to civilians. Moreover, he says, all decisions must be based on an "assessment of probabilities" and the "comparative values" placed on the lives of a nation's own population versus the enemy's. "It is the role of a jurisprudence," he says, "to draw difficult lines, to choose between evils, to make such tragic choices¨or at least to establish frameworks and mechanisms for making and reviewing these kinds of decisions." ˛

Ron Stang is a freelance writer and radio newsmagazine producer in Windsor, Ontario.

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