13
ON KILL COURTS AND TORTURE WARRANTS
On September 30, 2011, Anwar al-Awlaki, a U.S. citizen, was killed in Yemen by “a barrage of Hellfire missiles” fired from an aerial drone pursuant to the personal approval of President Obama.1 At the White House that day, Obama announced the killing: “Earlier this morning, Anwar Awlaki … was killed in Yemen. The death of Awlaki is a major blow to Al Qaeda’s most active operational affiliate. Awlaki was the leader of external operations for Al Qaeda in the Arabian Peninsula. In that role he took the lead in planning and directing the efforts to murder innocent Americans. He directed the failed attempt to blow up an airplane on Christmas Day in 2009.”2 Whether those charges were accurate or not is hard to say; I will revisit them momentarily. More importantly, perhaps, they were issued solely by the president, with no opportunity for Awlaki to defend himself in a court of law before he was executed by the government in a covert operation with remote controlled missiles, as David Cole has observed.3
Obama’s announcement was an unprecedented demonstration of presidential disregard of the Fifth Amendment’s guarantee of due process, not to mention other U.S. law that prohibits “murder” and “assassinations.” The targeted killing of Awlaki—who, as reported by the New York Times, was included on President Obama’s “kill list” and whose killing was, in the president’s words, “an easy one” to authorize4—is presented here as a case study of how the U.S. war on terrorism is infecting the Bill of Rights with ongoing lawless executive conduct at home and abroad. And like the Faurisson affair and the Nazis in Skokie discussed in the previous chapter, the constitutionally relevant issue here is not whether we liked Anwar al-Awlaki or approved of the contents of his political speech, but whether the Bill of Rights applies to all U.S. citizens, and whether the president can pick and choose who deserves to have those rights and who doesn’t.
The constitutional and statutory law context of the killing of Anwar al-Awlaki is summarized briefly as follows: The Fifth Amendment to the U.S. Constitution specifies: “No person shall be … deprived of life, liberty, or property, without due process of law.” Black’s Law Dictionary defines “due process” as “the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.” That same reference quoted the words of Alexander Hamilton: “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice.” It also cited two U.S. Supreme Court decisions: “The words ‘due process of law’ were undoubtedly intended to convey the same meaning as the words ‘by the law of the land,’ in Magna Carta”; and: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”5 In addition, Title 18, section 1119, of the United States Code, “Foreign Murder of United States Nationals,” bans the “murder” of U.S. citizens abroad,6 while a series of executive orders issued by several of our most recent presidents prohibit “assassinations.”7 Despite the extremely serious constitutional and legal issues implicated in his order to kill the U.S. citizen Anwar al-Awlaki, President Obama referenced no part of the Constitution or any law in his announcement of the targeted killing of Awlaki.
Four months later, on February 4, 2012, veteran national security reporter Michael Isikoff issued a report for NBC News about “a confidential Justice Department memo” pertaining to the Awlaki episode. Isikoff’s piece was called “Justice Department Memo Reveals Legal Case for Drone Strikes on Americans.” The memo itself was titled “Lawfulness of a Lethal Operation Directed against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force.”
While presenting its case, the Justice Department document placed repeated emphasis on an “imminent threat” justification for killing Awlaki, including as follows (emphasis added):
• “Targeting a member of an enemy force who poses an imminent threat of violent attack to the United States is not unlawful. It is a lawful act of national self defense”;8
• “A lethal operation against a U.S. citizen who is a senior operational leader of al-Qa’ida or its associated forces” and “who himself poses an imminent threat of violent attack against the United States, would not violate the Constitution”;9
• “In these circumstances, the ‘realities’ of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.”10
At the same time, the Justice Department deployed a modified meaning of “imminent threat” that was not consistent with the customary legal meaning of the term: “Certain aspects of this legal framework require additional explication. First, the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”11
In his report for NBC News and quoting the Justice Department memo, Isikoff wrote that the Justice Department deployed a “broader concept of imminence,” and cited Jameel Jaffer, deputy legal director of the ACLU, who told Isikoff that the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”12 Black’s Law Dictionary gives the ordinary meaning of the term: An “imminent danger” is “an immediate, real threat to one’s safety that justifies the use of force in self-defense.” In short, the government cannot credibly justify a targeted killing of a U.S. citizen without due process by, at one moment, featuring an “imminent threat” justification and at the next moment allowing that the alleged threat posed by the person who had already been killed may not have been “imminent” within the obvious meaning of the word.
Isikoff also wrote that the Justice Department memorandum deployed an “expansive definition of self-defense” when it claimed legal authority for the targeted killing of Awlaki. The memo invoked “national self-defense” or “self-defense” on ten separate occasions while citing U.N. Charter Article 51 as the lone legal source of its self-defense claim.13 But as Mary Ellen O’Connell noted in a legal analysis for CNN titled “Killing Awlaki Was Illegal, Immoral, and Dangerous”: “[Obama administration] officials also assert we have a right to kill persons who pose an ‘imminent’ threat under the law of self-defense. In fact, the law of self-defense, found in the U.N. Charter, permits force in self-defense on the territory of a state if the state is responsible for a significant armed attack. Yemen is not responsible for any significant armed attacks.”14 As O’Connell suggests, the resort to the use of force by one state against another in self-defense relies on a rigorous standard of “armed attack” involving real military forces engaged in a genuinely imminent or actual assault on the territorial borders of another state, as I have already discussed (see chapter 8). This standard of self-defense by resort to military force—which is the only exception to the UN Charter’s predominate prohibition against the resort to military force—is not met by the Justice Department’s focus on a targeted individual who had no ability to engage in an “armed attack” against the United States as the term is defined under international law.
The Justice Department’s memo also asserted that “the United States is in an armed conflict with al-Qa’ida and its associated forces, and Congress has authorized the President to use all necessary and appropriate force against those entities.” The memo cited the 2001 congressional Authorization to Use Military Force (AUMF) to support this statement.15 However, Awlaki was not a proven member of Al-Qaeda and “associated forces” is not mentioned in the 2001 AUMF, which authorized President George W. Bush “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”16 More than a decade later, the Obama administration’s Justice Department claims in essence that this authorization permits war on an indefinite basis, including against persons who had nothing to do with 9/11. From there, the Justice Department also asserted that “the AUMF itself does not set forth an express geographic limitation on the use of force it authorizes,”17 thereby claiming that the 2001 congressional authorization of force recognizes neither a geographic limit nor a time limit on the U.S. use of force in response to 9/11. This interpretation of the 2001 AUMF amounts to a legal claim to wage perpetual war on a global scale.
In addition to modifying the customary legal meaning of “imminent threat,” “self-defense,” and “armed attack,” and infusing the 2001 AUMF with a multi-decadal time span, a global geographic range, and a new reach to “associated forces,” the Justice Department similarly interpreted the Title 18 U.S. domestic law prohibition against government murder of a U.S. citizen abroad and President Reagan’s Executive Order 12333 banning assassinations.
Title 18 (section 1119(b)) states: “A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.”18 With regard to Title 18 (section 1119(b)), the Justice Department memo argued:
Because the person who would be the target of the kind of operation discussed here would be a U.S. citizen, it might be suggested that section 1119(b) would prohibit such an operation [the targeted killing of Awlaki]. Section 1119, however, incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to “unlawful killing[s].”19
The Justice Department thus claimed in essence that because it has asserted that the U.S. targeted killing of Awlaki in Yemen was a “lawful” killing (under the “self-defense” against an “imminent threat” claim), the federal prohibition against murder in Title 18 does not apply to the U.S. government’s killing of Awlaki.20
While referring to the executive order banning assassination, the Justice Department fell back on its questionable assertions with regard to “imminent threat” and “self-defense” and simply claimed: “A lawful killing in self-defense is not an assassination. In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban.”21
Finally, there is in fact no executive authority in the U.S. Constitution that permits the president to authorize a targeted killing of a U.S. citizen abroad who is outside a war zone and who poses no imminent violent threat to the United States or its citizens. Perhaps for that reason, no president before Obama, as far as we know, had ever ordered a targeted killing abroad of a U.S. citizen under a similar set of circumstances in the history of the United States.
The Justice Department’s claims seeking to legally certify the targeted killing of Anwar al-Awlaki—first reported by Michael Isikoff in February 2012—were re-stated by Attorney General Eric Holder in a speech at the Northwestern University School of Law in March 2012,22 and in a letter to Senator Patrick Leahy of Vermont, who chairs the Senate Judiciary Committee, on May 22, 2013.23 In addition to that body of legal claims purporting to justify the killing of Awlaki, President Obama articulated the same set of factual justifications for killing Awlaki that he first mentioned in September 2011. Thus, in a May 23 speech, Obama asserted that Awlaki:
Responding to the charge that Awlaki was an “operational leader” of Al-Qaeda in Yemen, American journalist Jeremy Scahill, a leading expert on U.S. drone policy who has spent extensive amounts of time in Yemen, including while investigating the killing of Awlaki, wrote that the president had “bestowed upon Awlaki a label that had never been attached to him before, despite all his reported associations with al Qaeda.”25 Obama also claimed in 2011 that Awlaki “directed the failed [underwear bomber] attempt to blow up an airplane on Christmas Day in 2009.”26 About that charge, Scahill wrote: “Awlaki’s role in the ‘underwear plot’ was unclear.”27 Scahill also wrote:
While U.S. media outlets, terror ‘experts’ and prominent government officials were identifying Awlaki as a leader of AQAP [Al-Qaeda in the Arabian Peninsula], those allegations were dubious. Awlaki had entered dangerous territory in openly praising terrorist attacks on the United States and calling for Muslims in America to follow the example of Nidal Hassan [who shot and killed 13 people and injured 30 at Fort Hood, Texas, in November 2009]. But the available evidence regarding al Qaeda’s relationship with Awlaki in 2010 suggests that Awlaki was not an operational member of the group but was seeking out an alliance with like-minded individuals.28
Both Scahill, in his book Dirty Wars: The World Is a Battlefield, and Gregory Johnsen, a Near East studies scholar at Princeton University, in his book The Last Refuge: Yemen, al-Qaeda, and America’s War in Arabia, reported that prior to the attempted bombing of the airplane on Christmas Day, 2009, Awlaki met in Yemen with Farouk Abdulmutallab (the underwear bomber), and subsequently issued public statements that supported the attempted bombing. Neither Scahill nor Johnsen, however, reported evidence of an operational role played by Awlaki in the attempted bombing, and before he was killed Awlaki denied any such role.29 This is not to say that Awlaki did not do what the president had charged; however, there is informed opinion in the journalistic and scholarly literature that raises doubts about the precision of Obama’s factual allegations that served as the public justification for Awlaki’s targeted killing by the government.
There is no doubt that Awlaki’s public statements eventually supported the idea of terrorist attacks on U.S. civilians, including with regard to the attempted suicide bombing of the U.S. airplane on Christmas 2009. In that sense Awlaki crossed a line—perhaps not in terms of the constitutionality of such speech, but with the fact of his public support of the killing of U.S. civilians, which he justified as follows:
The American people live [in] a democratic system and that is why they are held responsible for their policies. The American people are the ones who have voted twice for Bush the criminal and elected Obama, who is not different from Bush as his first remark stated that he would not abandon Israel, despite the fact that there were other antiwar candidates in US elections, but they won very few votes. The American people take part in all its government’s crimes. If they oppose that, let them change their government. They pay the taxes which are spent on the army and they send their sons to the military, and that is why they bear responsibility.30
There is no enlightened law or moral principle that permits the killing of civilians as collaborators in retaliation for harm to another population by the government of those civilians, as Awlaki suggested with respect to American civilians, and as Dershowitz suggested with respect to Lebanon’s civilians during the Israel-Lebanon conflict in summer 2006, when he wrote a piece for Huffington Post titled “Lebanon is Not a Victim”: “When a nation chooses sides in a war, especially when it chooses the side of terrorism, its civilians pay a price for that choice. This has been true of every war. We must stop viewing Lebanon as a victim and begin to see it as a collaborator with terrorism.”31 If it is not morally or legally sound, which it is not, for Awlaki to assert that American civilians are fair game as targets for terrorism given the policies of their government, then the same moral and legal condemnation must apply to Dershowitz’s argument with respect to Lebanon’s civilians (see chapter 8).
Given the tenuous nature of the government’s factual case against Awlaki, it seems likely that Awlaki was targeted because of his inflammatory speech rather than for any operational role in Al-Qaeda in the Arabian Peninsula. Awlaki gave numerous abhorrent speeches, as Scahill notes: “Awlaki’s own words crossed a line during this time [late 2009], as he lent his powerful endorsement to specific acts of terrorism on U.S. targets.”32 But if Awlaki was killed for his ideas rather than his actions, then his killing likely amounted to a prohibited assassination of a U.S. citizen. In addition, if the government had probable cause to suspect that Awlaki had transitioned from mere advocacy of reprehensible ideas to a criminal conspiracy to kill Americans, then the president could have charged Awlaki with one or more crimes and requested his extradition from Yemen to stand trial in the United States.
In this light, President Obama’s claim, in his May 23 speech, that he was logistically unable to arrest Awlaki in Yemen,33 including while Awlaki was living in a small village in a remote area,34 is not credible. According to the New York Times, prior to his death Awlaki had been the subject of a “two-year manhunt” by the United States in Yemen.35 It is hardly believable that the United States lacked the law enforcement and intelligence assets, in addition to the political resources, to apprehend a U.S. citizen in Yemen over a two-year period who allegedly was an imminent violent threat to the United States and its citizens. Furthermore, there is no published evidence to my knowledge of any U.S. request to have Awlaki extradited from Yemen.
Moreover, two weeks after Anwar al-Awlaki was killed, his 16-year-old son, Abdulrahman al-Awlaki, also a U.S. citizen, was killed in Yemen by a missile fired from a drone while he and his cousins were eating food outdoors.36 Samir Khan and Jude Kenan Mohammad, both U.S. citizens, also were killed by U.S. drone strikes—Khan was killed with Anwar al-Awlaki in Yemen and Mohammad was killed in a signature drone strike in Pakistan.37 No one among these three was ever charged with a crime and the teenage son of Anwar al-Awlaki had no involvement whatsoever with Al-Qaeda. When Obama admitted on May 23 that his administration had killed these three U.S. citizens with drone strikes (in addition to Awlaki), he mentioned none of them by name and provided no additional details.38
After it had been reported that the Obama administration had targeted Anwar al-Awlaki for killing, but before he was killed, the American Civil Liberties Union and the Center for Constitutional Rights filed a lawsuit on behalf of Awlaki’s father, Nasser al-Awlaki, challenging the government’s asserted authority to carry out targeted killings of U.S. citizens located outside a war zone. The civil liberties groups charged that “the authority contemplated by the Obama administration is far broader than what the Constitution and international law allow,” that “both the Constitution and international law prohibit targeted killing except as a last resort to protect against concrete, specific, and imminent threats of death or serious physical injury,” and “an extrajudicial killing policy under which names are added to CIA and military ‘kill lists’ through a secret executive process and stay there for months at a time”—as in Awlaki’s case—“is plainly not limited to imminent threats.” The civil liberties groups also charged that “targeting individuals for execution who are suspected of terrorism but have not been convicted or even charged—without oversight, judicial process, or disclosed standards for placement on kill lists” is a violation of the due process rights of the targeted citizens. A U.S. federal court dismissed the suit in October 2011 on procedural grounds, claiming that Awlaki’s father had no judicial standing to sue the government.39
Robert Wright, a columnist for the online edition of the New York Times, also composed a relevant list of comments and questions about the targeted killing of Awlaki:
Despite significant concerns about the legality of these targeted killings, on May 23 Obama announced that he would seek an additional step to establish the practice indefinitely. As a supplement to his indifference to the Fifth Amendment’s guarantee of due process, President Obama added insult to injury by proposing what the Guardian called a “kill court” that would institutionalize, with a veneer of legality, the president’s “kill list”41 and the targeted killing of suspected terrorists that flows from it. This presumably would include U.S. citizens, given the immediate context of the targeted killings of Awlaki, Awlaki’s 16-year-old son, and the two other U.S. citizens.
In a report titled “Obama Drone Oversight Proposal Prompts Concern over ‘Kill Courts,’” the Guardian reported that “proposals to vet future US drone strikes risk creating ‘kill courts,’ according to human rights campaigners who say Barack Obama’s promise of new legal oversight does not go far enough to end what they regard as extrajudicial executions,” and the proposals “highlight how little change Obama is proposing to the underlying principle that the U.S. has a legal right to kill suspected terrorists abroad without trial.” Zeke Johnson, director of Amnesty International’s Security with Human Rights Campaign in the United States, said: “What’s needed on drones is not a ‘kill court’ but rejection of the radical redefinition of ‘imminence’ used to expand who can be killed, as well as independent investigations of alleged extrajudicial executions and remedy for victims.”42
A U.S. “kill court” to oversee U.S. targeted killings would likely operate in a fashion similar to the FISA court, which was established to oversee U.S. surveillance of phone calls “without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States.”43 In a 2013 letter to Senator Harry Reid, the Justice Department’s Office of Legislative Affairs informed the senator that in 2012 the department had submitted 1,789 requests to the FISA court to conduct electronic surveillance, and that “the FISC [FISA court] did not deny any applications in whole or in part.”44 An April 2012 DOJ letter to Congress, according to Bill Quigley, reported: “In 2011, the government asked FISA judges 1,676 times to conduct electronic surveillance for foreign intelligence services. There were zero denials.” And: “In 2010, the government asked FISA judges 1,511 times to conduct electronic surveillance for foreign intelligence purposes. There were zero denials.”45 According to David Kris, who “headed the Justice Department’s National Security Division between 2009 and 2011,” the FISA Amendments Act of 2008, which George W. Bush signed and which in December 2012 President Obama extended for another five years,46 “gives the government nearly carte blanche spying powers.” Kris observed that the Bush and Obama administrations have “interpreted the law to mean that as long as the real target is al-Qaeda, the government can wiretap purely domestic e-mails and phone calls.”47
That the secret FISA court provides a façade of oversight of the executive branch while backing the government’s violation of the Fourth Amendment ban against unreasonable searches and seizures was validated further in June 2013, when the Guardian reported:
Responding to the Guardian report, the Center for Constitutional Rights issued a statement that began: “As far as we know this order from the FISA court is the broadest surveillance order to ever have been issued: it requires no level of suspicion and applies to all Verizon subscribers anywhere in the U.S.”49 On June 19, following an interview with Noam Chomsky, the Guardian reported: “The actions of the US government in spying on its and other countries’ citizens have been sharply criticised by Noam Chomsky, the prominent political thinker, as attacks on democracy and the people.” Chomsky told the Guardian: “Governments should not have this capacity.”50 It thus could be argued that the de facto function of the FISA court overall is not to oversee the constitutionality of the government’s surveillance policies but to provide a quasi-judicial mechanism that allows the government to electronically search and seize what it wants without regard to the Fourth Amendment.
Meanwhile, in news media interviews in June 2013, Dershowitz supported the Obama administration’s NSA phone surveillance of millions of American citizens without probable cause: “Even Benjamin Franklin was wrong when he said those who would give up any privacy or rights in the name of security deserve neither. That’s nonsense. That’s hyperbole. That’s extremism. That’s the kind of thing we expect from the guy who broke the story for the Guardian, Glenn Greenwald, who never met a terrorist he didn’t like and never met an American government official he liked.”51 For the record, what Ben Franklin actually said was (emphasis added): “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”52 Given the context in which he cited Franklin and applied his words,53 Dershowitz was presumably arguing either that the Fourth Amendment ban on unreasonable searches and seizures is not an “essential liberty” or is not jeopardized by the government’s confirmed ongoing collection of the phone records of millions of Americans not suspected of a crime. Either way, once again, it is Dershowitz’s claims that are extreme.
The FISA court and the proposed “kill court”—in Obama’s words “the establishment of a special court to evaluate and authorize lethal action”54—also resemble the recommendation from Alan Dershowitz to establish a torture court in the United States to issue “torture warrants” that would authorize the president to approve requests to torture suspected terrorists in ticking-bomb scenarios, and thus regulate the practice.55 This recommendation included Dershowitz’s suggestion in his 2002 essay “The Case for Torture Warrants,” that “a sterilized needle underneath the nail might be one such approved method” of torture.56 That proposal is evocative of the Nazi legalization of torture as described by German lawyer Ingo Müller in his 1991 book Hitler’s Justice: The Courts of the Third Reich, published by Harvard University Press:
The [German] judicial system also quickly learned to live with the fact that defendants appeared in court bearing signs of torture or testified that confessions had been extracted from them by force. In the beginning, these cases caused judges acute embarrassment, and the minister of justice was unable to accept such police interference in the operations of the court. A committee of top legal advisers from the Ministry of Justice and the Gestapo found a practical solution, however: they legalized the terror, to such an extent that they even established a “standard club” to be used in beatings, so that torture would at least be regularized.57
The proposed U.S. “kill court” and “torture court,” if established, would likely enable rather than restrain unconstitutional killings and illegal torture, just as the FISA court appears to have enabled rather than restrain the electronic surveillance of millions of Americans. And once the government has “legalized” in a procedural sense otherwise illegal surveillance, targeted killings, and torture, who could say that the post–9/11 political leadership in the United States had not succeeded in overthrowing the Bill of Rights and crossing the line to authoritarianism?
Meanwhile, the “red line” that Cornell scholar Mark Selden observed, “of killing noncombatants through air power,” beginning with the U.S. firebombing and nuclear bombing of Japan and continuing “through the Korean and Indochinese wars to the Gulf, Afghanistan, and Iraq wars,” has been extended by President Obama to the killing of noncombatants in Pakistan and Yemen through his signature drone war. These drone strikes virtually guarantee an ongoing supply in those lands of advocates of retaliatory terrorism against the United States. In turn, one shouldn’t expect any let up in the opportunistic subversion of the Bill of Rights without an end to the countless U.S. wars and military actions abroad, which have yet to be rigorously subjected to moral and legal scrutiny inside the United States; that is, except, in the beginning, by Noam Chomsky in American Power and the New Mandarins (1967),58 Howard Zinn in Vietnam: The Logic of Withdrawal (1967),59 Richard Falk in Vietnam and International Law (1967),60 and that superb generation of antiwar academics, intellectuals, and activists.
In their 2005 debate at Harvard University, Alan Dershowitz derisively characterized a number of Noam Chomsky’s political claims as emanating from “Planet Chomsky,” thus dismissing Chomsky’s legitimate concerns, in this instance, with the political independence of the major U.S. news outlets and whether or not a succession of U.S. administrations genuinely supported a two-state solution in the Israel-Palestine conflict consistent with international law.61 However, if you support the Bill of Rights in the United States and human rights abroad, in addition to an enlightened American society and a peaceful world order, “Planet Chomsky” isn’t your worry, but a “Planet Dershowitz” might be.
In recent years, it’s been Chomsky who has spoken on behalf of the enlightened traditions of Anglo-American law dating back to the Magna Carta,62 not Dershowitz, and it’s been the MIT linguistics professor who has spoken most recently in support of the presumption of innocence,63 not the Harvard law professor. Meanwhile, Dershowitz has been advancing a jurisprudence of the counterterrorist “preventive state” that would date and discredit longstanding Western legal traditions as anachronistic and obsolete because they tie the hands of the United States and Israel in the conduct of their serial wars and military incursions.64 Conversely, it is Chomsky who supports the rule of law in international affairs, including as applied to the pivotal Israel-Palestine conflict, and Enlightenment traditions of law and liberty in the United States. Unfortunately for us all, it looks as if the Dershowitzian vision of the authoritarian counterterrorist “preventive state” may indeed become an American nightmare, while the Chomskyan vision of an enlightened and peaceful society remains a dream.