PART I
INTRODUCTION(S)

1

METAPHORS

In December 2005, the Kennedy School of Government at Harvard University hosted a debate between Noam Chomsky and Alan Dershowitz. The event began with a collegial opening statement from Dershowitz:

It’s a great honor for me to be participating in a debate with a man who has been called the world’s top public intellectual. My connections to Noam Chomsky go back a long time. In the 1940s, I was a camper and he a counselor in a Hebrew-speaking Zionist camp in the Pocono Mountains called Camp Massad. In the 1960s we both worked against the Vietnam War. In the 1970s we had the first of our many debates about the Arab-Israeli conflict. I advocated ending the Israeli occupation in exchange for peace and recognition of Israel; he advocated a one-state solution, modeled on Lebanon and Yugoslavia. We debated again in the 1980s and the 1990s. I have the text. I hope that our once-a-decade encounter will continue for many decades to come, though I doubt we will agree with each other.

Dershowitz went on to advocate an Israel-Palestine final-status peace agreement based on a mutual compromise of Israeli and Palestinian rights:

The time has come for compromise. My friend Amos Oz, the great novelist and leader of the Israeli peace movement, has said there are two possible resolutions to a conflict of this kind: the Shakespearian and the Chekhovian. In a Shakespearian drama, every right is wronged, every act is revenged, every injustice is made right, and perfect justice prevails, but at the end of the play, everybody lies dead on the stage. In a Chekhov play, everybody is disillusioned, embittered, heart-broken, disappointed, but they remain alive. We need a Chekhovian resolution for the Arab-Israeli tragedy. This will require the elevation of pragmatism over ideology. It will require that both sides give up rights. Rights! Giving up rights is a hard thing to do. It will require that each side recognizes and acknowledges the pain and the suffering of the other. And it will require an end to the hateful attitudes and speech that some on each side direct against the other.¹

In a similar fashion, near the beginning of his 1983 book Fateful Triangle: The United States, Israel, and the Palestinians, Chomsky described “certain assumptions” that would inform his analysis in that book and beyond:

The first of these is the principle that Israeli Jews and Palestinian Arabs are human beings with human rights, equal rights; more specifically, they have essentially equal rights within the territory of the former Palestine. Each group has a valid right to national self-determination in this territory. Furthermore, I will assume that the state of Israel within its pre-1967 borders had, and retains, whatever one regards as the valid rights of any state within the existing international system. One may formulate these principles in various ways, but let us take them to be clear enough to serve as a point of departure.²

Similarly, in a recent book, Knowing Too Much: Why the American Jewish Romance with Israel Is Coming to an End, Norman Finkelstein—a Dershowitz adversary and a Chomsky ally—wrote: “If Israel does, or appears to, confront an existential crisis when its physical existence is literally at stake, American Jewry will almost certainly rally, and should rally, to its defense. The physical destruction of any society is a criminal act and sane people will contemplate such a prospect with horror” (emphasis in original). Finkelstein then wrote that “the choice between Israel’s survival and Palestinian rights is a false one.”³

All of this is to emphasize that this volume is aligned with the broad goals and principles that are advocated in each of the statements above from Dershowitz, Chomsky, and Finkelstein with respect to the Israel-Palestine conflict; however, it questions the fidelity of Dershowitz’s scholarship and public commentary to his own articulated principles, as he listed them at Harvard in 2005. For example, to avoid a Shakespearean ending and to achieve a Chekhovian one, Dershowitz stressed that both the Israeli and Palestinian sides must give up rights. But I have read little in Dershowitz’s work that proposes a compromise of any Israeli rights and much that supports the abandonment of Palestinian rights.

And which Israeli rights, exactly, would be implicated in an Israel-Palestine peace agreement, given Israel’s core policies toward the Palestinians? These policies feature six decades of belligerent occupation of the Palestinian West Bank, extensive settlement of parts of Israel’s population into the West Bank, the construction of a separation wall on West Bank territory, and a total economic embargo of the 1.5 million inhabitants of the Gaza Strip. Given these practices, which are grounded in no recognized rights of Israel, it isn’t clear to which rights of Israel Dershowitz referred when he advocated a mutual compromise of Israeli and Palestinian rights as the best path to a permanent peace agreement.

In his debate with Chomsky, Dershowitz also observed that Israel “should end its occupation of all Palestinian cities and population centers on the West Bank.”⁴ A passing glance at those words might convince many readers of Dershowitz’s moderation. But there is more to the West Bank than its cities and population centers, including its agricultural lands, water aquifers, air space, transportation system, and so on. The odd specificity of Dershowitz’s appeal to end the occupation “of Palestinian cities”—as opposed to West Bank territory—seems to imply that he supports a continuation of the Israeli occupation in other areas of the West Bank, including an extension of official permanent status to the major Israeli settlements that encircle Jerusalem to the east and that were built in the West Bank across the Green Line from Tel Aviv.

Indeed, in his 2005 book The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved, and years later, Dershowitz sketched ways for solving the conflict, including an assertion of an implied Israeli right to annex sizeable portions of Palestinian territory on which major Israeli settlements are located.⁵ But there are no such rights of settlement and territorial annexation. There may be compelling grounds from a “pragmatic” standpoint to negotiate “relatively small” border adjustments during final-status negotiations, as Dershowitz also wrote.⁶ But this is a different thing altogether from an assertion of an Israeli right to annex Palestinian territory on which Israeli settlements were built in violation of the Fourth Geneva Convention.

Finally, and consistent with Dershowitz’s announced standard of Israeli-Palestinian mutuality, any Palestinian concessions on settlements and West Bank territory should be reciprocated on a one-to-one basis—that is, an exchange of roughly equal amounts of roughly comparable land—as the unofficial but credible Geneva Accord on Israel-Palestine stipulated: “In accordance with UNSC Resolution 242 and 338, the border between the states of Palestine and Israel shall be based on the June 4th 1967 lines with reciprocal modifications on a 1:1 basis.”⁷ But Dershowitz makes no such one-to-one stipulation, while rejecting what he refers to as “the indefensible 1967 lines”⁸—even though the 1967 lines legally allot 78 percent of historic Palestine to Israel and leave only 22 percent to the Palestinians (assuming that the Palestinians are able to hold onto all of the West Bank at the conclusion of a peace agreement).

This catalog of nonexistent Israeli rights does not invalidate Israel’s recognized and legitimate rights. As a UN member state, Israel has the same rights and obligations under the United Nations Charter and other sources of public international law as any other state. Israel thus has a right to its internationally recognized borders (the June 4, 1967 borders) which do not incorporate East Jerusalem or any part of the West Bank—a legal fact that has been affirmed repeatedly by the UN Security Council, the UN General Assembly, the International Court of Justice, and the major human rights organizations.

Israel has a legitimate right to self-defense against an armed attack under Article 51 of the United Nations Charter. However, Israel has regularly violated the UN Charter’s prohibition against the threat and use of force by states—Article 2(4), regarded as the cardinal rule of international law—by mis-casting its serial aerial bombardments, ground invasions, and armed reprisals in the region as “self-defense.” Dershowitz consistently supports Israel’s illegal military actions by improperly citing the self-defense exception to the cardinal rule that prohibits force, while persistently neglecting to mention the overarching rule itself.

As a UN member state, Israel also enjoys a legitimate expectation of recognition by other UN member states, including by the governing authorities of Arab and Muslim countries. Although the human rights records of several such states—Saudi Arabia, Iran, and Azerbaijan, for example, which refuse to recognize the state of Israel—are far worse than Israel’s with respect to how those countries treat their domestic populations, the six decades of Israel’s settler/annexationist occupation of the West Bank is unique to the contemporary world, and explains why Israel has been deprived of broader recognition internationally by Arab and Muslim states. Overall, with respect to his stated peace formula of the mutual compromise of rights, Dershowitz is a mostly uncompromising advocate of Israel’s rights who detracts from Palestinian rights.

On the other side of the rights ledger, while the Palestinians possess a right of self-determination within the territorial borders of the West Bank and Gaza Strip, they possess no legal right today to territory within Israel’s internationally recognized 1967 borders. Thus, the claim by some Palestinians to territory “from the (Jordan) river to the (Mediterranean) sea” has no basis in contemporary law. The Palestinians also possess no right to kill or injure Israeli civilians by resorting to terrorist acts or the indiscriminate firing of rockets into Israel. The major human rights organizations—Amnesty International, Human Rights Watch, and B’Tselem—have correctly and consistently deplored such acts. For his part, while Dershowitz deplores Palestinian terrorism, he writes and speaks in support of a much larger scale of Israeli state violence against the Palestinians. In short, when Dershowitz gave his support to a Chekhovian-style solution to the Israel-Palestine conflict—the formula for which is the mutual compromise of rights—he neglected to identify what those rights are, and thus to give some substance to his road map for peace.

And despite calling for “an end to the hateful attitudes and speech” in the debate over Israel-Palestine, Dershowitz paradoxically has identified scholarly critics of Israel’s policies that violate Palestinian rights as “enemies” of Israel, including in his 2008 book The Case against Israel’s Enemies: Jimmy Carter and Others Who Stand in the Way of Peace. In that volume, Dershowitz cited former President Carter, Noam Chomsky, Richard Falk, Richard Goldstone, Norman Finkelstein, the Presbyterian Church, and the pope, among others, as enemies of Israel. Yet, unlike Dershowitz with respect to Palestinian rights, none of these critics support the violation of Israel’s rights, and they recognize the state of Israel within the June 4, 1967 borders. It is, therefore, simply false to claim that liberal or left scholarly critics of Israel support the destruction of the state of Israel, as Dershowitz suggested on the occasion of the death of former New York City mayor Ed Koch.⁹

Contrary to Dershowitz, who in his high-profile defense of Israel’s illegal policies seems to have compromised an apparent earlier commitment to international law (when he signed published petitions opposing the war in Vietnam), human rights (when he supported Soviet dissidents), and civil liberties (when he opposed the Nixon administration’s assault on the Bill of Rights), Chomsky’s commitment to those sources of law and civilized conduct has never faded. From the outset, for example, and perhaps most prominently, Chomsky has challenged the right of any nation-state, including the United States and Israel, to resort to the threat and use of force in violation of UN Charter Article 2(4), or to intervene unilaterally in the internal affairs of other countries. In the introduction to his first book about U.S. foreign policy, published in 1969, Chomsky challenged the U.S. right to wage war in Vietnam: “The primary reason for opposition to the war is its costs to us. A second cause is the feeling that the cost to its victims is too great. At first glance, this reaction seems to be at a higher moral level than the first, but this is questionable. The principle that we should retract our claws when the victim bleeds too much is hardly an elevated one. What about opposition to the war on the grounds that we have no right to stabilize or restructure Vietnamese society?”¹⁰ In the same volume American Power and the New Mandarins, which introduced a new critical paradigm of U.S. foreign policy by challenging the right to threaten and wage illegal war, Chomsky observed that “what is striking is the implicit assumption that we have a right to continue our efforts to restructure the South Vietnamese government in the interests of what we determine to be Vietnamese nationalism.”¹¹ And in the same book: “Notice how perverse is the entire discussion of the ‘conceptual framework’ for [U.S.] counterinsurgency [in South Vietnam]. The idea that we must choose between the method of ‘winning hearts and minds’ and the method of shaping behavior presumes that we have the right to choose at all. This is to grant us a right that we would surely accord to no other world power.”¹² Also:

A striking feature of the recent debate on Southeast Asian policy has been the distinction that is commonly drawn between “responsible criticism,” on the one hand, and “sentimental” or “emotional” or “hysterical” criticism, on the other. There is much to be learned from a careful study of the terms in which this distinction is drawn. The “hysterical critics” are to be identified, apparently, by their irrational refusal to accept one fundamental political axiom, namely, that the United States has the right to extend its power and control without limit, insofar as is feasible. Responsible criticism does not challenge this assumption, but argues, rather, that we probably can’t “get away with it” at this particular time and place.¹³

That Chomsky has never retreated from this principled approach to U.S. foreign policy is not debatable. Citing the July 1955 worldwide appeal from Bertrand Russell and Albert Einstein to “renounce war,” Chomsky wrote in his 2006 book Failed States: “The world has not renounced war. Quite the contrary. By now, the world’s hegemonic power accords itself the right to wage war at will, under a doctrine of ‘anticipatory self-defense’ with unstated bounds. International law, treaties and rules of world order are sternly imposed on others with much self-righteous posturing, but dismissed as irrelevant for the United States—a long-standing practice, driven to new depths by the Reagan and Bush II administrations.”¹⁴

Chomsky has applied the same principled, rights-based criticism to Israeli policy. Writing in 1983 in the first pages of Fateful Triangle, Chomsky wrote that “these remarks will be critical of Israel’s policies: its consistent rejection of any political settlement that accommodates the national rights of the indigenous population,” that is, the Palestinian inhabitants of the West Bank and Gaza Strip.¹⁵ Chomsky similarly defended the rights of the indigenous populations in Latin America: “One of the most exciting developments of the past few decades is the revival of indigenous cultures and languages, and the struggles for community and political rights. Throughout the hemisphere and elsewhere there are indigenous movements seeking to gain land rights and other civil and human rights that have been denied them by repressive and often murderous states.”¹⁶

In summary, there is an evident tension between Chomsky’s approach to rights, whereby Chomsky and his allies apply rights universally, including to the United States and Israel, and Dershowitz’s approach, where he and his allies apply rights selectively to shield Israel’s U.S.-backed policies from criticism in the United States.

A major theme of this book is that U.S. and U.S.-supported violations of international law and human rights abroad has led to an erosion of civil liberties at home—one of “the costs and consequences of American empire,” as Chalmers Johnson wrote in his 2000 book Blowback.¹⁷ Among the costs and consequences here are the devastating loss of public wealth in the United States to excessive national-security spending (more than the rest of the world combined), an increased threat of terrorism to the United States, and the post–9/11 increase in intrusive security measures and electronic surveillance by the executive branch.

Jonathan Turley, a professor of law at the George Washington School of Law, wrote in the Washington Post in 2012 that the post–9/11 assertions of executive-branch security powers—which he listed as assassination of U.S. citizens, indefinite detention, arbitrary justice, warrantless searches, secret evidence, the secret and unaccountable FISA court, immunity from judicial review, continual monitoring of citizens, war crimes, and extraordinary renditions—“form a mosaic of powers under which our country could be considered, at least in part, authoritarian.” Turley commented further: “Americans often proclaim our nation as a symbol of freedom to the world while dismissing nations such as Cuba and China as categorically unfree. Yet, objectively, we may be only half right. Those countries do lack basic individual rights such as due process, placing them outside any reasonable definition of ‘free.’ But the United States now has much more in common with such regimes than anyone may like to admit” and “the list of powers acquired by the U.S. government since 9/11 puts us in rather troubling company.”¹⁸ How did the post–World War II United States, a country that made incredible progress in civil rights and liberties, transition to a post–9/11 quasi-authoritarian state—with no evident path on which to walk back the ubiquitous focus on security and the accumulation of unchecked executive power?

One answer is that postwar U.S. foreign policy, which has cast aside human life and human rights and the rights of other nations, ultimately has boomeranged back into our own country with an increased threat of terrorism and a corresponding disregard for the basic constitutional rights of Americans.

One remedy—the one advanced in this volume—is relatively simple: respect international law and human rights abroad, and the security mandate to trim civil liberties at home will ease. Within this framework, then, the survival of civil liberties in the United States depends to a great extent on the observance of international law and human rights in the conduct of U.S. foreign policy.

I have chosen to illustrate the problems and remedies cited above and throughout this book through the metaphors of the work of Harvard professor Alan Dershowitz (who poses as the problem) and MIT professor Noam Chomsky (who represents the remedy). Whereas Dershowitz arguably once supported human rights abroad and civil liberties at home, since at least 9/11 he has appealed for a review of the traditional meaning of both areas of law. In contrast, Noam Chomsky has consistently supported human rights abroad and civil liberties at home. Thus, the Dershowitz metaphor in effect tracks the modern rise and fall of civil liberties in the United States, while the Chomsky metaphor is presented as the antidote, and the road, so to speak, not taken. One outcome, ironically, is that while American leaders have long proclaimed our nation as a shining beacon of the Chomskyan paradigm of human rights and civil liberties (if not labeled as such), what the American people are getting instead is the Dershowitzian model of a civil libertarianism turned to authoritarianism.