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Security vs. Liberty By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, October 24, 2002


Alan M. Dershowitz — law professor, practicing attorney, prolific author — unfailingly engenders emotional, often contradictory, reactions from most people. For one case alone — participating in the defense of O. J. Simpson — Dershowitz was condemned for representing a man believed by many to have murdered his wife and her friend ("Shyster Lawyer Springs Killer"), and praised for representing a man believed by many to have murdered his wife and her friend ("Lawyer Provides Pariah With Constitutionally-Mandated Defense".)

But one thing Professor Dershowitz's critics and supporters alike should agree about is that in his latest book, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press), he has written an important, accessible work that dares to raise (and mostly answer) the hard, fundamental questions about how a free society's legal system deals with a terrorist threat that places it in mortal jeopardy.

Actually, it's more accurate to say that Why Terrorism Works is two books. It begins with a comprehensive explanation of how, in the author's words, "the international community served as midwife to the birth of international terrorism, beginning in 1968, by encouraging it, providing incentives for its continuation, and refusing to take the steps necessary to curtail it."

The remainder of Why Terrorism Works — the legal parts which today concern us as citizens of a free, open, albeit threatened, society — are devoted to a thoughtful examination of "how we could easily wipe out international terrorism if we were not constrained by legal, moral, and humanitarian considerations, " and to "a series of [legal] steps that can effectively reduce the frequency and severity of international terrorist attacks by striking an appropriate balance between security and liberty."

As our leaders and institutions strike that legal balance — in the face of hysterical ranting by the anti-American Left that President Bush and Attorney General Ashcroft have, post-September 11, 2001, turned our country into a police state — those who enact and interpret our laws would be well advised to absorb Professor Dershowitz's analysis and recommendations, which stem from a realistic perspective of what our country's security needs are.

To begin building his case on the "security" side of the ledger, Professor Dershowitz provides a laundry list of what we could do to fight terrorism. Though deliberately a "straw man" argument, it is nonetheless effective: Control the media, monitor all communications, criminalize advocacy, restrict movement, impose collective punishment, employ targeted assassinations, massively retaliate, hold secret military trials, torture suspects, and more. While recognizing that these steps, and others like them, would substantially increase our security from terrorists, Dershowitz rightly recognizes that "[t]he United States would be incapable of mounting an unlimited war against terrorism because we are constrained by our Constitution, our commitment to the rule of law, and our heritage of fairness, humaneness, and proportionality." He adds, in a frank statement that probably annoyed some of his friends: "Civil libertarians who adamantly deny the possibility that repression can sometimes reduce terrorism are as agenda-driven as are those who favor repression and promise that it will end all terrorism. The reality is that repression — like terrorism itself — sometimes works, and the reason we should oppose it is that it carries too high a price tag" (emphasis added).

Thus, the next logical question is what price should we — can we — be willing to pay for the security we manifestly need. After a thoughtful chapter on the subject of torture, Professor Dershowitz provides an answer. He divides his analysis and recommendations into "macro steps" (e.g., eliminating incentives and creating disincentives for terrorism, incapacitating apocalyptic terrorists) and "micro steps" (i.e., "tightening controls over our borders, requiring national ID cards, authorizing military tribunals, infiltrating domestic groups, expanding electronic monitoring authority, permitting more exchanges of information among prosecutorial and intelligence agencies, and imposing some restrictions on freedom of speech"). It is in these "micro steps" that Professor Dershowitz lays out the legal balance between "security" and "liberty" — and how he weighs those choices will doubtless surprise both his lawyer friends and his lawyer enemies. Indeed, Professor Dershowitz characterizes what needs to be struck as "striking a new balance" (emphasis added).

First, Dershowitz posits a fundamental maxim of the field he knows so well: "It is better for ten guility criminals to go free than for even one innocent person to be wrongfully convicted." (Doubtless, belief in this principle is what enables Dershowitz, wearing his practicing-lawyer hat, to participate in the defense of a monster like O.J. Simpson). Yet, wearing his professor/author hat, Dershowitz candidly recognizes that "it does not necessarily follow from this salutary principle that it is also better for ten potential mass terrorists to go free (and perhaps recidivate on a wholesale basis) than for even one innocent person to be detained for a limited period of time, sufficient to determine that he is not a potential terrorist. (Nor does it necessarily follow that it is better for ten acts of terrorism to occur than for the home of one innocent supporter of terrorism to be destroyed)" (emphasis in original).

From this somewhat qualified support for tilting the "brief detention of an innocent" vs. "terrorists going free" balance in favor of the former, Professor Dershowitz passes to other balancing issues. In each, he provides pro and con arguments, usually with serious concern for the moral aspects which should be, but too often are not, of great concern to lawyers and politicians: border control and airport security protocols — even though such controls would impact on who enters and who leaves this country. Dershowitz is also quick to recognize that "[c]oordination and need for information sharing must trump our concern about the government having too much data."

On the hot-button reflexive subject of national ID cards, Dershowitz parts company with most of the Left, by openly admitting that when post-September 11th he considered the issue, "a foolproof national ID card had some real virtues. * * * I was hard pressed to come up with any compelling civil libertarian arguments against a simple card, which would contain only five elements: the bearer's name, address, Social Security number, and photograph, and a finger or retinal print matching a chip in the card." As an adjunct, Professor Dershowitz clearly disassociates himself from a favorite Liberal/Left position and, not afraid to risk being falsely accused of endorsing racial profiling, favors "limited use of face recognition technology in public buildings, airports, other places where identification is now required."

Immigration? "We must move toward a time when people who are in this country illegally are tracked down and detained or deported....The need for security in this age of terrorism demands that the legal status of everyone in this county be unambiguously clear."

Profiling? Dershowitz supports it — so long as it is aimed at terrorists and does not target members of a particular race, ethnicity, or religion for that reason alone."

Only in one subsection of his Chapter 5, does Professor Dershowitz allow his criminal defense background to be at odds with his otherwise hardheaded approach to the legal aspects of dealing with terrorism. While he holds, rightly, that "[a]nother important check on governmental overreaching is trial by jury and open trials," in my view he makes a mistake when he asserts that this admittedly important check "was substantially undercut by President George W. Bush's authorization of military tribunals to try noncitizens suspected of ties to terrorism." Contending that "it's one thing to subject prisoners of war who are captured on foreign battlefields to military tribunals . . . [but] quite another . . . to treat American residents, some with long ties to this country, as if they had no rights under our Constitution. There are no Supreme Court precedents justifying secret military trials of American residents who are not citizens and who are accused of domestic crimes."

I would reply to Professor Dershowitz that rarely, if ever, has the United States tried to put run-of-the mill prisoners of war before military tribunals, rather than incarcerating them for the duration, and releasing them when hostilities ended. I would also point out that President Bush's military tribunal order does not call for "secret" trials. Further, it applies only to non-citizens, wherever they reside. Apparently, Professor Dershowitz has no problem with military tribunal jurisdiction over non-citizens who do not reside in the Untied States. Those who do reside here do so by sufferance. The fact that they may "have long ties to this country," does not change that sufferance.

As to the absence of "Supreme Court precedents justifying secret military trials" of resident aliens, it is enough to note that in Ex parte Quirin the Supreme Court upheld trial by military tribunal not only of alien Nazi spies who had landed on our shores (though they were not "residents"), but, among them, at least one American citizen (Herbert Haupt). If a military tribunal can constitutionally exercise jurisdiction over a non-resident citizen, a fortiori such a body can constitutionally try a resident alien.

Given the Supreme Court's approval in Ex parte Quirin of the Commander-in-Chief's power to constitute military tribunals and to try even an American citizen in one, and given the stakes in the war on terrorism that Professor Dershowitz himself so eloquently and convincingly demonstrates, there can be little doubt that our fundamental right of trial by jury has not been "substantially undercut" by President Bush's limited, non-citizen, military tribunal order. Even if Dershowitz's accusation were true, as he himself acknowledges: "claims of national security generally trump assertions of individual rights."

We can all take comfort in knowing that, should those claims trump those rights, Professor Alan M. Dershowitz would be there to remind us — lawyers and laymen alike — that, despite the grave risks we face from terrorism, the balance has shifted too much toward security and too far from liberty.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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