Profs Cole and Dershowitz Debate Preemption

BY REBECCA AGULE

BY REBECCA AGULE

On Thursday, September 27th, the Harvard Law School Program on Terrorism and the Law, along with the American Constitution Society, hosted a debate on preemption, featuring HLS Professor Alan Dershowitz and Georgetown University Law Center’s Professor David Cole. An engaged audience filled the Ropes-Gray Room seating and lined the back walls.

Kennedy School of Government Lecturer Jessica Stern, who mediated the debate, first introduced herself with a lighthearted slip of the tongue, saying, “I teach terrorism.” Stern opened the questioning, asking generally if the circumstances of today’s world justify preventative actions. “Many people would argue that the threats we face today are very different in character from those we faced during the Cold War,” she said.

Keeping the light-hearted tone of the opening remarks, Cole said, “I do not take a position against prevention generally. I brush my teeth on a regular basis.” Cole went on to describe what he terms “commonsensical preventative measures”, including cargo and transport screening, the support of moderate Muslim causes, and the use of soft power.”

“What’s interesting about those measures is that despite the fact that they are non-controversial…the Bush administration has disregarded them in favor of tough guy measures,” Cole said. Cole described how the administration uses the language of prevention to justify harsh measures, based on inaccurate proxies and stereotypes.

“[The Bush administration] has compromised the fundamental commitment to the rule of law,” he said. Cole criticized such tactics, for both their coercive nature, as well as because of their impact upon attitudes towards the United States. “That kind of attitude is . . . responsible to the tremendous rise in anti-Americanism since 9-11.” Cole said.

“Abu Ghraib is better than anything Madison Avenue could have come up with.”

From his first turn taking the floor, Dershowitz made it clear where his opinions diverged from Cole’s. “I am against almost everything David is against,” Dershowitz said. “The difference between us is that I don’t believe that prevention and preemption are inherently unproductive, immoral and wrong.”

Dershowitz acknowledged the widespread incidence of torture, even in democracies, and pressed for warrants and standards. “If you are doing anything in a democracy you have to do it openly, with accountability and with jurisprudence,” he said. “Its not that the warrant works. It’s the need to articulate criteria,” which allows for later review and scrutiny.

Dershowitz used World War II as an example of when preventative action could have prevented consequences worse than war, saying that the world made a mistake by not fully engaging Nazi Germany much earlier, “before Nazi war machinery rolled into high gear.” He then drew a line between WWII and the current war in Iraq, calling the latter “a bad preventative war.”

“It’s a terrible mistake to judge a principle by one application,” he said.

Cole next had the opportunity to refute Dershowitz’s characterization of his position. Cole considered himself, not an absolutist against preventative war, but simply more dubious than Dershowitz. He also took issue with the WWII example. “It overstates the case,” he said. There were plenty of ways we might have stopped Hitler short of a preventative war.” Rather than eliminating preventative war as an option, Cole pushed against allowing such moves to be made unilaterally, calling such authority dangerous. “Two hundred years of preventative war in Europe caused mass carnage,” he said.

Believing the participants were finding too much common ground, Stern moved onto the more emotional issues of torture warrants, asking Dershowitz to articulate his case.

“I opposed torture. I would personally never justify torture,” Dershowitz said. “[But] to favor a warrant is not to favor the underlying phenomenon. It is to restrain it to accountability and public exposure.” Dershowitz explained that the requirement of torture warrants would move torture – an anticipatable inevitability, in his mind – onto the table. “I don’t believe necessity knows no law. I believe necessity is closely regulated by law,” he said. “I prefer accountability”

In responding, Cole returned humor to the afternoon. “I figure Alan will go inflammatory at some point, so I might as well preempt it,” he said. Cole continued, in a grimmer tone, “Let me substitute one word for torture, and that’s rape. We have books on the laws that prohibit rape. The response isn’t to regulate it and authorize it in advance.”

Amid growing audience discomfort, Stern retook control of the room, moving the discussion forward. Cole and Dershowitz then applied their respective theories to the issues of Iran, Israel, and deterrence. Dershowitz described the kinds of choices being considered, and the extremes reached before preventative war enters the game. “We don’t choose good, better or best,” he said. “We tend to have to between choose unthinkable and inconceivable.” The nature of prevention, he explained, allows more intentional and exclusive targeting of military instillations.

On the other hand, he continued, “deterrence is a promise by a democracy that we will violate international law. . .and end up massively killing civilians.”

Cole cautioned against this line of reasoning, seeming to believe it too simplistic. “Preemption is not a rule that only applies to Israel. It’s not a rule that only applies to the US,” he said. Pointing to the examples of India versus Pakistan or Iraq versus Iran, he continued, “We have to craft rules for the general, not the exception.”

Each side took a brief moment to close. “I don’t buy into civil liberties or human rights fallacy, that you can have civil rights and human rights without costs,” Dershowitz said. He continued: “If you believe torture never works, well, then only sadists would support it. The problem is that all of these things sometimes work, and sometimes save lives. But they can also diminish freedom.”

In his summary remarks, Cole said, “We acknowledge that there are trade offs to be made. In this context [of preemption], we have the worst of both worlds.” “We have taken away significant liberties and securities,” Cole said. “And doing so has rendered us less safe. Preemption de-legitimizes a state’s use of force; what makes it legitimate is rule of law. Addressing Dershowitz directly, Cole said simply, “I think I am much more skeptical of you.”

Indicative of the afternoon’s generally genial tone, and having presented himself as one not willing to cede the last word, Dershowitz smiled and added, “I think that’s a fair point.”

Following the question-and-answer session, the guests adjourned to the back of Ropes-Grey for book sales and signings. In 2007, Cole published the book Less Safe, Less Free: The Failure of Preemption in the War on Terror, with Jules Lobel. Dershowitz published Preemption: A Knife That Cuts Both Ways in 2006.

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