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Muslims vs. Dersh By: Rod Dreher
National Review | Monday, November 25, 2002


uslim groups in France have gone to court — unsuccessfully, so far — petitioning the state under hate-speech statutes to censor views they consider anti-Islamic. That kind of thing doesn't work in the land of the First Amendment, but that doesn't mean some Muslims are unwilling to use the system — even a professional code of conduct — to silence speech that upsets them.

Yesterday, a California-based Muslim legal group filed a complaint with the Massachusetts Board of Bar Overseers requesting disciplinary action against Alan Dershowitz, the high-profile Harvard Law professor, and author of the recent book Why Terrorism Works. The complaint centers on a March 11 op-ed in the Jerusalem Post in which Dershowitz advocates a new counterterrorism measure for Israel. Under the Dershowitz plan, Israel would state publicly that upon the next terrorist attack, it will give residents of a specific Palestinian village known to have harbored terrorists 24 hours to leave, whereupon Israeli bulldozers would level the village. The Muslim lawyers call this tantamount to advocating war crimes.

"What the professor has stated is that there should be no due process, no judge and jury, [that] a mass reprisal against whole families, villages and communities take place," said Sareer Fazili, a board member of the Muslim Legal Defence & Education Fund (MLDEF), which brought the complaint. "That was a point where we felt, after a number of students at Harvard Law protested the professor and asked him to retract his statements, and he refused, that was when we decided to make a complaint on this end."

The complaint says that Dershowitz's op-ed calls for the violation of Article 33 of the Fourth Geneva Convention, which states: "No protected person may be punished for an offense he or she has not personally committed," and "collective penalties and likewise all measures of intimidation or of terrorism are prohibited." Because the United States is a signatory to the Geneva treaty, it has the force of U.S. law, the Islamic group says. Thus, if Dershowitz's views violate the Geneva Convention, the argument goes, they violate U.S. law, and therefore the Massachusetts Bar's rules of professional conduct.

Fazili, speaking to reporters in a conference call, stressed that MLDEF is not taking the Harvard scholar on because he is a Jew, but to defend the ethical integrity of the legal profession, and to protect Palestinians from being harmed by those who agree with Dershowitz's views.

"Those of us who are members of this profession have certain responsibilities in conducting ourselves, in how we act and especially in how we speak," Fazili said. "Here, the advocacy of out-and-out violence against potentially numerous innocent people is, with all due respect, something lawyers have a duty to prevent."

"He's right about that, and that's why they should be protesting Palestinian terrorism," Dershowitz fires back. "What I'm calling for is simply a warning in advance to people who are harboring terrorists to clear out of their houses. I'm talking about the destruction of houses, not people. Morally, it's always preferable to destroy property as punishment, as opposed to lives."

("It's ironic," Dershowitz tells NRO, "that this press conference occurs on a morning when Israeli schoolchildren are murdered — and they're worried about houses being blown up!" Fazili began the telephone press conference by condemning the suicide bombing in Jerusalem, and in the next breath saying that three times more Palestinian youth than Israeli youth have died in the latest Intifada — as if there were a moral equivalence between Jewish children on bus and Palestinian teenagers throwing projectiles at armed soldiers.)

Dershowitz elaborates on his Jerusalem Post article in Why Terrorism Works. In the book, he writes:

The point is to make the destruction the fault of the terrorists, who will have received plain advance warning of the specific consequences of their actions. The Israeli soldiers would act automatically, carrying out a previously announced policy. Any more attacks would put into motion the destruction of other previously announced locations — a list of which Israel would make public to all Palestinians. The policy and its implications will be perfectly clear to all the Palestinian people: whenever terrorists blow themselves up and kill Israeli civilians, they also blow up houses in one of their own villages. The destruction is entirely their fault, and it is entirely preventable by them — which gives the villagers a good reason to blame them when homes are destroyed, and an incentive to pressure the terrorists to prevent it.

He acknowledges that it's morally troubling to knock down the house of someone who may not support terrorism. But the fact is terrorism, even suicide bombing, has wide support among Palestinians, who must be made to understand there is a price to be paid for encouraging terrorism.

Dershowitz denies that the Geneva Accords prohibit the destruction of houses used to harbor terrorists, and he accuses MLDEF of mischaracterizing his position. He doesn't expect to be disciplined by his colleagues.

"The Massachusetts bar lives by American law, not Islamic law," he says. "I'm going to continue to be extremely critical of Palestinian terrorism, and I'm going to continue to try to come up with solutions to the problem of Palestinian terrorism. If they don't like it, let them debate me. I'm not going to be silenced by a group of people who disagree with me. What they're proposing is utterly un-American and unlawyerlike, to try to use disciplinary procedures to silence speech they disagree with."

Despite the MLDEF's touching profession of concern for the integrity of the lawyers' guild, it has yet file ethics complaints against left-wing radical lawyers Lynne Stewart and Stanley Cohen, both of whom have defended Islamic terrorists, and both of whom have publicly endorsed terrorist violence in the name of causes they support. It doesn't take a genius to discern another agenda at work here.

"This doesn't frighten me, but it does send out a frightening message to younger lawyers, or less well known lawyers, who may be afraid now to advocate for controversial views for fear they'll be hauled before a bar association committee," the Harvard professor says.

Eminent legal scholars strongly doubt it will come to that for Dershowitz.

"I can't believe anybody would take that seriously. I don't think [Dershowitz] has anything to worry about," says Judge Robert Bork. "They really can't hope to get anything done to Dershowitz, but I suppose they could inhibit speech they don't like by simply putting you to the expense and trouble of defending yourself."

Boston lawyer Harvey Silverglate, one of the country's leading First Amendment experts, calls the complaint "completely frivolous."

"Dershowitz was not representing a client. He was writing an article or a book or giving a lecture. That's the context in which he made his statements," Silverglate explains. "And being a lawyer doesn't mean that one surrenders one's First Amendment rights. There are certain limitations on lawyers, but they are certainly not limitations on your right to opine on matters of public import and interest."

Silverglate calls the action "another example in a tiresome parade of examples of people trying to shut people up by trying to entangle them in adversarial proceedings with licensing agencies. People who are interested in shutting up the other side in any particular public debate tend to get creative. Complaining to bar disciplinary authorities is a favorite technique of censors."

In fact, the lodging of such a silly charge could backfire on the Muslim lawyers, Silverglate warns. "Dershowitz may be able to go to their bar association's licensing board and charge them with violating the code of ethics by filing a frivolous complaint intended to intimidate." There is precedent for that. Says Dershowitz: "The last lawyer who tried to get me censured for what I wrote, a judge who didn't like my book Reversal of Fortune, got himself disciplined by the bar for bringing the complaint."




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