Wednesday, February 22, 2006

Preemption: A Knife That Cuts Both Ways

New book by Al Dershowitz. From Tony Blankley's review:

The premise of his book is that in this age of terror, there is a potential need for such devices as profiling, preventive detention, anticipatory mass inoculation, prior restraint of dangerous speech, targeted extrajudicial executions of terrorists and preemptive military action including full-scale preventive war.


Profiling, preventive detentions, yeah, kinda, OK.

Prior restraint of "dangerous speech"? Well, that's interesting. Look for some opposition...

"Targeted extrajuridical executions?" "Pre-emptive war?" This is a bit more of a problem.

According to Blankley, Dershowitz utilizes the criminal code theory of law to arrive at his conclusions.

To see the difference between traditional Anglo-American criminal jurisprudence and his proposed jurisprudence of prevention, he raises the great maxim of criminal law: better that ten guilty go free, than one innocent be wrongly convicted. That principle led our law to require proof beyond a reasonable doubt before conviction in criminal trials. Most of us agree with that standard.

But then Prof. Dershowitz updates the maxim thusly: "Is it better for ten possibly preventable terrorist attacks to occur than for one possibly innocent suspect to be preventively detained?" I would hunch that most people would not be willing to accept ten September 11th attacks (30,000 dead) in order to protect one innocent suspect from being locked up and questioned for a while


The new realities of unacceptable risk require new — and lower — standards of certainty before defensive action is permitted.

As we develop a jurisprudence of prevention, we increase the chance of justice and rationality being a bigger part of such crisis decisions that our presidents will be facing for the foreseeable future.

Dershowitz grounds his argument in a VERY slippery supposition:

The classic theory of deterrence postulates a calculating evildoer who can evaluate the cost-benefits of proposed actions and will act — and forbear from acting — on the basis of these calculations. It also presupposes society's ability (and willingness) to withstand the blows we seek to deter and to use the visible punishment of those blows as threats capable of deterring future harms. These assumptions are now being widely questioned as the threat of weapons of mass destruction in the hands of suicide terrorists becomes more realistic and as our ability to deter such harms by classic rational cost-benefit threats and promises becomes less realistic."

This presume that we can spot irrational people, with moral certainty, in advance.

I don't think so, Al. This smacks of legal positivism on steroids.

Blankley professes amazement that he, a Certified Right-Winger, can agree with Dershowitz. Blankley should have trusted his instincts. "I shoot you before you shoot me--in fact, before you even have a weapon, or before you overtly threaten me"--is not an easy moral case to build.

1 comment:

Anonymous said...

Dershowitz raises a number of questions. Like you, I'm not happy with his argument - but in an age in which the President has adopted a pre-emptive strike as a national strategy, someone has to raise the questions of the just war criteria of last resort and competent authority. I've taken a stab at this on my blog. The church needs to come to grips with the fact that warfare is declining in severity and changing in nature. Dershowitz, at least, is calling for a disccusion. Lets wait and see what his book says.