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2363The Professor of Torture - Counter Punch

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  • Zafar Khan
    Nov 1, 2002
      The Professor of Torture
      Alan Dershowitz's Mad World
      by Will Youmans


      Alan Dershowitz is the kind of guy who never lets the
      facts get in the way of a good argument.

      The Harvard Law School professor and part-time
      voracious defender of Israel devoted his celebrity
      legal mind to combating terrorism. His partisan and
      fundamental support for Israel, however, discredits
      his own views on terrorism.

      He outraged supporters of civil liberties and due
      process after September 11, 2001 for suggesting that
      torture should be legally sanctioned and warranted by
      the courts--an argument he forwards in his new book
      'Why Terrorism Works'. His shining model for a
      legalized system of torture is Israel, of course. In a
      talk he gave to the World Affairs Council on September
      3rd, 2002, he described Israel's procedure as invoked
      judiciously and non-lethal in technique. He was
      unconcerned with who was being tortured and for what.
      What mattered to him was strictly technical in nature,
      like a good lawyer.

      In a 1999 essay in 'The Nation,' Alexander Cockburn
      quoted a 15 year-old torture victim's description of
      his experience after being arrested for throwing

      "They handcuffed and beat me during the journey to
      Fara'a [a military prison in Nablus]. Once we arrived,
      they took me to a 'doctor' for a 'checkup.' I found
      out later that this 'checkup' is to locate any
      physical weakness to concentrate on during torture.
      They paid particular attention to my leg, which was
      once injured and was still sensitive. Before they
      began interrogation, they asked me if I was ready to
      confess. They then hanged me by my wrists, naked,
      outside in the cold, and gave me hot and cold showers
      alternatively. A hood covered in manure was put over
      my head."

      A September 1999 Supreme Court ruling scaled back
      Israel's routine use of torture according to B'tselem,
      and Israeli human rights group. However, there are
      still numerous reports of use by Israeli occupation
      police. Many of the victims are minors.

      It is a truism that armies occupying populaces against
      their will rely on systematic violence to keep them in
      their place. Every historical example of military
      occupation involves many of the same practices, which
      by any useful definition constitutes terrorism. Yet,
      according to Dershowitz, we are supposed to believe
      that Israel's use is enlightened enough to learn from?
      How can Israel be a shining light given its systematic
      military domination of an entire people? Is this
      something all states should aspire too?

      The fundamental failure of Dershowitz is that he
      advocates fighting terrorism with terrorism. A
      Newtonian principle applies to the physics of
      violence: every act of violence by one party will be
      answered with an opposite and equal one. He dismisses
      the notion that state counter-terrorism practices are
      a form of terrorism since they are aimed at fighting
      it. So when Israel kills eleven innocent bystanders in
      an effort to kill one Hamas official, it is not
      terrorism. Neither are the checkpoints, closures,
      curfews, arbitrary arrests, and gun shots at children
      or media. In a talk he gave, he praised the behavior
      of Israeli military in Jenin, and completely ignored
      what it calls "neighbor practice"--using Palestinian
      civilians as human shields on their searches of

      The cover of his book features pictures of Osama bin
      Laden and Yasser Arafat--the two main faces of
      terrorism in the Dershowitzian world. Noticeably
      absent from the cover are the most prominent and
      successful terrorists, those who really made it work
      by using the cover of legitimacy or by achieving
      governmental stature, which obfuscates their use of
      terror. So, there is no picture of Menachem Begin, the
      former Israeli Prime Minister who was once wanted by
      the British mandate authorities for terrorism, or
      Henry Kissinger, or the Shah of Iran, or the countless
      other "world leaders" whose terrorism worked so well
      that their extermination of so many opponents was met
      with neglect, complicity, or even assistance. No
      wonder a 'Washington Post' reviewer called his book

      Dershowitz handles the question of state versus
      non-state terrorism by ignoring the former. This
      important divide is coming to a head in Israel's
      legally bizarre trial of Palestinian leader Marwan
      Barghouti, who incidentally was tortured numerous
      times according to <www.freebarghouti.org>. He is
      being tried in a regular Israel court for terrorism
      and murder. Since he committed none of the alleged
      acts directly, the prosecution must rest on a theory
      of command responsibility, that means under his
      authority and with his approval others carried out
      acts of violence.

      If he is found guilty, it will set a clear precedence
      for the prosecution of Ariel Sharon, who as an Israeli
      leader authorized attacks that have killed citizens. I
      am not saying a prosecution team would go after
      Sharon, but the contradiction would be too glaring to

      That Israeli courts will struggle to handle this
      legally formalistic hindrance is emblematic of how
      Israeli law deals with the Palestinian "other." The
      Palestinians in the West Bank, East Jerusalem and Gaza
      occupy a strange legal space. They do not have the
      rights of citizens, nor do they have the rights of
      occupied persons under international law, yet they are
      subject to Israeli rule and pay taxes to Israel. To
      make the distinction clear, within the Palestinian
      populations are Jewish colonists who are granted full
      rights of citizenship and are thus treated entirely
      different by Israel. This is clearly an Apartheid

      Critics are charging that this whole affair is
      political in nature, not purely legal. Nelson Mandela
      drew an interesting parallel: "What is happening to
      Barghouti is exactly the same as what happened to me.
      The government tried to de-legitimize the African
      National Congress and its armed struggle by putting me
      on trial."

      Palestinians escape conventional legal classification
      and are thus subject to legal contortion acts,
      mysterious procedural innovations and new legal
      fictions--in many ways a mirror to the evolution of
      American Indian law.

      As a law professor, this should dumbfound Dershowitz,
      but he no qualms about running with it. He is already
      beginning to advocate a trial of Yasser Arafat in
      Israeli courts, as his preferable choice among other
      options he deems legitimate, such as the "exile of
      Arafatand even targeted assassination" (Haaretz

      In March 2002, Dershowitz penned a piece for the
      'Jerusalem Post' that argued for the collective
      punishment of Palestinian villages for acts of
      violence sponsored by Palestinian individuals or
      groups. He proposed that any act of violence sponsored
      by an individual Palestinian would result in Israel's
      destruction of an entire pre-announced Palestinian

      He also publicly stated that Nathan Lewin's proposal
      that Israel execute the family members of suicide
      bombers was "legitimate." Israeli currently began a
      policy of expelling family members of suicide bombers
      from their villages. Before, they merely demolished
      their homes.

      These proposals define Dershowitz's inability to put
      Palestinian rights of security on equal footing with
      Israel's. Since he sees everything through a lens that
      prioritizes Israel's security above all else, he
      cannot see the fundamental disparity between
      populations within the legal system he praises.
      Israel's Basic Law, its pseudo-constitution (because
      Israel lacks one) is characterized by legal devices
      for securing the Jewish nature of the state by the
      appropriation of "Absentee" property, the homes of
      Palestinian refugees Israel disallowed from returning.

      The international community tried to address the
      effects of the fiasco it created with the partition
      plan. For instance, Israel's membership into the
      United Nations was conditioned on a just settlement of
      the refugee issue, which until this day has no
      occurred. Numerous UN resolutions affirm the rights of
      the refugees. His explanation for this: global

      Dershowitz dismisses international law and bodies
      entirely. In the talk to the World Affairs Council, he
      accused the United Nations Refugee Works Agency
      (UNRWA), the main humanitarian services provider in
      refugee camps, of "complicity" in terrorism for not
      cracking down on terrorists. He did not expound of
      course. In his recent book, he even casts doubt on the
      humanitarian plight of the Palestinians. In response
      to reports of Palestinian "desperation" in the refugee
      camps, he wrote "there are reasons to be skeptical of
      this claim."

      Any singling out of Israel, he claims is a hallmark of
      anti-Semitism. Israel should not be criticized
      explicitly, when there are far worse countries. This
      of course ignores the fact that it is America's
      closest ally, receives the most US foreign aid and
      enjoys special tax incentives to promote investment in
      Israel, it claims to be a democracy and a "light of
      all nations," it created the oldest and largest
      refugee population in the world, it continues the
      longest running and most brutal military occupation in
      the world--these rightfully subject it to a special
      scrutiny by activists here.

      He emerged as a staunch opponent of the national
      campaign for universities to divest from Israel.
      Dershowitz told a journalist from the 'Financial
      Times' that he would commit himself to the destruction
      of any university that divests from Israel.
      Dissatisfied with mere demise, he would then "dance on
      its grave."

      Palestinian purveyors of violence look no further than
      Israel itself to gauge the potential benefits of
      terror. Israel was founded by violence. The British
      mandate over Palestine came to a close largely as a
      result of Jewish terrorist groups such as the Stern
      Gang and the Irgun, and the bombing of the King David
      hotel. The same groups were responsible for the
      massacre of hundreds in the Palestinian village of
      Deir Yassin, which scared countless other into
      fleeing. Those who fled were not allowed to return.
      Their homes were either razed and planted over with
      trees or filled with Jewish newcomers to Israel.

      Dershowitz wants Israel's benefits from terrorism to
      be solidified in Israel's current Apartheid regime,
      but all terrorism after that by Palestinians is justly
      responded to by collective punishment, assassination,
      and legalized torture. That is why he can suggest a
      trial of Arafat, but not of Sharon, whose use of
      violence has been much more extensive and damaging,
      just from his 1982 Lebanese invasion alone.

      Finally, a serious movement to confront the gains of
      Israel's legacy of terrorism develops in the form of
      the divestment campaign, and Dershowitz is opposing
      it. It is a fundamental contradiction. By recognizing
      Israel's Apartheidesque exclusively-Jewish claim to
      the land, which was won by violence, he legitimizes
      the gains of terrorism by one particular group. This
      is the clearest example of terrorism working.

      Will Youmans is a law student at UC-Berkeley. You can
      e-mail him at wyoumans@...

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