(I'm not famous enough to be a blogger on the Huffington Post, and this essay might violate their editorial policy anyway, so I'm going to post it here on DU. :) )
Dear Alan,
I'm writing to give you some understanding. I mean that in two ways. I can see that you're awfully sore about your words being misunderstood, so I'd like to show that at least one person is parsing them carefully and correctly. The other was is that I wish to impart to you some understanding that you seem to lack. I realize that it seems somewhat presumptuous for me to lecture you. After all, I just some guy and you're a Harvard Professor and one of the greatest legal minds of the 20th century. As far as the 21st century goes... well, not so much.
You wrote in
http://www.huffingtonpost.com/alan-dershowitz/torture-accountability-a_b_73405.html">a recent blog entry, “R.J. Eskow and Larisa Alexandrovna seem to have difficulty understanding my usage of the word normative when I say that I am normatively opposed to torture.” That may be, but I understand what you mean. I looked up “normative.”
What you are saying is that your standard, typical posture – under normal circumstances – is that you are opposed to torture. When you are watching a movie, or grocery shopping, or playing blackjack or paying your electric bill, you are opposed to torture. I understand that. What you need to understand are two problems with that statement – arguably perception issues, but issues nonetheless.
The first issue is that everyone know that there is a a “comma-but” after a declaration of a normative position. If you make the point that you are
normatively opposed to something bad, it's tantamount to admitting that there are conditions under which you aren't opposed to it. If you don't believe me, try tossing this declaration out on your next talk show appearance: “I'm normatively opposed to child rape.” See how much explaining you have to do after
that one.
So what's your “comma-but”? You claim that you don't have one; you oppose torture, but “favor accountability” when it's done. You seem to think that this puts you on the same moral ground with people who just plain oppose torture, but it doesn't. It puts you on the same moral ground with people who don't really oppose torture at all.
Consider this poor Saudi woman who is in the news for being sentenced to a vicious whipping — 200 lashes! — and a prison sentence despite having been gang raped. The Saudis certainly claim to be moral people who cherish their women. Furthermore they can accurately claim that they are normatively opposed to whipping rape victims. In this case, however, the woman was in a car with a man who was not a relative, so as you can see, their hands are tied by the law. They don't
want to have to do this, but it's an extraordinary situation; it's not “the norm” and sadly, normative attitudes do not apply.
But, don't worry your balding little head, Alan, there
is accountability! Never let it be said that you can just go around Saudi Arabia whipping rape victims! No! There was a trial and a judge decided that this penalty should be applied. So, just as you normatively oppose torture but demand accountability, the Saudis
normatively oppose whipping rape victims, and they have accountability.
Am I being unfair by comparing you to the Saudis? Maybe. So let's use
your examples, shall we? Your first example:
For those who claim you can't be against a practice and still favor accountability when it is done, recall the Vietnam War. I and many on the left opposed the war while at the same time demanding that, if there is to be a war, Congress must officially declare it.
My example was better. This conflation is misleading. The left demanded that we close the loophole which allowed LBJ and Nixon to prosecute the war in Vietnam was because it was believed that had Congress been part of the decision to go to war, it would not have been made. More importantly, how has this “accountability” worked out for us? Has it kept us out of unjust wars of choice? No. Now that we have “accountability,” are we supposed to tolerate unjust wars of choice? (The answer is “no,” in case you're having trouble with it.)
Let's try your other example.
Or consider the death penalty. I oppose it...
Awesome! Wait. Do you
normatively oppose it?
...but since it is being carried out, I want accountability and legal procedures including an execution warrant.
D'oh! I guess you do.
So how's that execution warrant thing working out? There's an interesting book that was just published called “
http://www.harpercollins.com/books/9780060574642/Chasing_Justice/index.aspx">Chasing Justice.” It's the harrowing true story of a man who spent two decades on death row for a crime he didn't commit. I assume that you are familiar with the book since you wrote a blurb for the cover: “The incredible story of this enforced visit to hell and back is a modern day version of Dante and Kafka.” Kerry Max Cook, the author who lived this “incredible story,” was subject to one of these “execution warrants.” He would be dead today — murdered by the state — were it not for the extraordinary efforts of many dedicated and underpaid attorneys, including your very own niece-in-law, Hanna Liebman Dershowitz. If you think that anyone — even death penalty supporters — should be satisfied with the “accountability” in the system, you should give Hanna a call; I'm sure you have her number.
There isn't really enough accountability in the world to allow the death penalty to be imposed; it should simply be forbidden. The death penalty is morally wrong and should be abolished, not dressed up in legal bullshit — abolished. Additionally, there isn't enough accountability in the world to allow an unjust war of aggression to be declared; such wars should simply be illegal.
Hold on, such wars
are illegal according to our treaty obligations. How's “accountability” faring now, Alan?
Finally, you seem to be making an effort to be practical. Unfortunately, almost all of your example are lifted out of Jack Bauer fan fiction. I was surprised to see you come up with a real-world example:
Recently, Israeli security officials confronted a ticking-bomb situation. Several days before Yom Kippur, they received credible information that a suicide bomber was planning to blow himself up in a crowded synagogue on the holiest day of the Jewish year. After a gun battle in which an Israeli soldier was killed, the commander of the terrorist cell in Nablus was captured. Interrogation led to the location of the suicide bomb in a Tel Aviv apartment. Israel denies that it uses torture and I am aware of no evidence that it did so to extract life-saving information in this case.
Before I respond, I'd like to point out that
http://www.opinionjournal.com/editorial/feature.html?id=110010832">this piece was published on the Wall Street Journal's opinion page, which has become — over the last half a decade — a bottomless repository of factually inaccurate and misguided editorializing. I say “misguided” because using the more accurate term “bat-shit crazy” would undoubtedly elicit some whining about “lowering the level of debate.”
In the sole real-world example you can cite, torture wasn't necessary. Let's say, for the sake of argument, that the Israeli authorities were lying — why would they do that? Because people — including you — would have opposed the use of torture, so they would have been foolish to admit it. “Torture warrants” aren't going to change that, any more than a “genocide warrant” would have gotten the Nazis off the hook at Nuremberg.
If you want people to stop calling you a torture apologist, you need to stop stressing the fact that you are
normatively against torture, and also be
abnormatively against it as well. You need to stop calling for accountability to be imposed on something that shouldn't happen in the first place — ever.
And never, ever, use the Nazis as a success story; it's rhetorical suicide.
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