Chomsky and Dershowitz

The thesis of this volume is that major violations of international law¹ by the United States and Israel against the Muslim world engender Muslim terrorism targeted at the United States and Israel, and that U.S. efforts to counter terrorism without ending its own violations of international law threaten to transform the United States into an authoritarian state. This idea can be expressed more economically as follows: Aggressive Warfare² → Terrorism → Counterterrorism → Authoritarianism. While Chomsky has asserted that violations of the human rights of Muslims engender terrorism targeted at the United States, Dershowitz has advanced a different theory of the Muslim terrorist, where such terrorists act in ahistorical spaces outside the realm of human reason and thus beyond the reach of the deterrence-based law-enforcement institutions of the Western world. Dershowitz has equated this notion to a “wild lion” theory of Muslim terrorism.³

To prevent Muslim terrorism, then, Dershowitz supports a prevention-based system of law enforcement—a “jurisprudence of prevention”⁴—which he has drawn for the most part from the Israeli model of counterterrorism and recommends for adoption by the United States. This highlights the obvious clash between Dershowitz’s post–9/11 jurisprudence and the traditional view of civil liberties in the United States, as this volume will show.

While assigning virtually no relevance to the historical or personal experiences of Muslim communities, Dershowitz’s ideological orientation is similar to that which exists in Israel, as described by Ha’aretz reporter Amira Hass: “For us, the Israelis, history always begins when the Palestinians hurt us, and then the pain is completely decontextualized.”⁵ Chomsky issued a similar assessment of the ideological orientation within the United States in his book 9-11,⁶ which was issued shortly after the terrorist attacks in New York and Washington on September 11, 2001. With respect to both U.S. and Israeli policy, Chomsky has examined numerous “contextual” (historical) events relevant to the Muslim point of view: Israel’s annexation of East Jerusalem in 1967 and its military occupation of the West Bank and Gaza Strip since then;⁷ the U.S. bombing of Iraq in 1991;⁸ the U.S.-led economic sanctions against Iraq in the 1990s;⁹ the 2001 U.S. invasion and occupation of Afghanistan;¹⁰ the 2003 U.S. invasion and occupation of Iraq;¹¹ the numerous U.S.-supported Israeli uses of armed force in the Mideast region, including the various invasions, bombardments, and military occupations of Lebanon (in 1978, 1982, and 2006), the bombardment of Gaza in 2006 and the air-land invasion of Gaza of 2008–09;¹² the long-term “administrative detentions” of hundreds of Palestinians inside Israel; the U.S.-supported Israeli embargo of the Gaza Strip; the long-term indefinite detentions of suspected Muslim terrorists at Guantanamo Bay;¹³ and the missile attacks with aerial drones on individuals in Afghanistan, Pakistan, and Yemen.¹⁴ All of these U.S. or U.S.-supported actions have targeted Muslim populations and include the “excess deaths” of 500,000 Muslim children five years of age and younger due to the U.S.-led UN embargo of Iraq throughout the 1990s.¹⁵ While Chomsky properly has not invoked these events to justify any acts of terrorism against American and Israeli civilians, it is disingenuous to imply, as Dershowitz does, that these actions by the United States and Israel would leave Muslims unaffected, with no motivation for violent retaliation and revenge.

Avram Noam Chomsky was born in Philadelphia in 1928, where he earned a PhD in linguistics from the University of Pennsylvania in 1955. As his MIT biography notes, Chomsky was a Junior Fellow of the Harvard University Society of Fellows (1951–1955) when he completed his doctoral dissertation in 1955, with “the major theoretical viewpoints” of it “appearing in the monograph Syntactic Structures, which was published in 1957,” and which “formed part of a more extensive work, The Logical Structure of Linguistic Theory, circulated in mimeograph in 1955 and published in 1975.”¹⁶ In 1959, the journal Language, issued by the Linguistic Society of America, published Chomsky’s “A Review of B. F. Skinner’s Verbal Behavior.”¹⁷ About Syntactic Structures and Chomsky’s critique of Skinner, The Oxford Companion to Philosophy observed: “Noam Chomsky, American linguist and philosopher whose pioneering work on language, Syntactic Structures (1957), and devastating ‘Review of B. F. Skinner’s Verbal Behavior’ (1959), led to the cognitive revolution, and the demise of behaviorism, in psychology.”¹⁸

As Chomsky’s MIT biography also notes, he joined the faculty of the Massachusetts Institute of Technology in 1955, and in 1961 was appointed full professor in the Department of Modern Languages and Linguistics (now the Department of Linguistics and Philosophy). From 1966 to 1976 he held the Ferrari P. Ward Professorship of Modern Languages and Linguistics. In 1976 he was appointed Institute Professor—the highest honor that MIT awards to a member of its faculty.

From 1958 to 1959 Chomsky was in residence at the Institute for Advanced Study in Princeton, New Jersey. Chomsky delivered the John Locke Lectures at Oxford in 1969, the Bertrand Russell Memorial Lecture at Cambridge University in 1970, the Nehru Memorial Lecture in New Delhi in 1972, and the Huizinga Lecture in Leiden in 1977. Chomsky also has received honorary degrees from Harvard University, Columbia University, the University of Chicago, the University of Pennsylvania, Georgetown University, the University of Massachusetts, the University of Connecticut, Loyola University of Chicago, Amherst College, Swarthmore College, Bard College, McGill University, the University of Toronto, the University of Western Ontario, Cambridge University, the University of London, Delhi University, the University of Calcutta, the University of Buenos Aires, Universidad Nacional De Colombia, Universitat Rovira I Virgili, Tarragona (Spain), and Scuola Normale Superiore, Pisa (Italy). He is a Fellow of the American Academy of Arts and Sciences and the National Academy of Science, a recipient of the Distinguished Scientific Contribution Award of the American Psychological Association, the Kyoto Prize in Basic Sciences, the Helmholtz Medal, the Dorothy Eldridge Peacemaker Award, and the Ben Franklin Medal in Computer and Cognitive Science. Chomsky also has written and lectured widely on linguistics, philosophy, intellectual history, contemporary issues, international affairs, and U.S. foreign policy.¹⁹ Concerning his publications in academic journals on linguistics alone, MIT lists 196 articles authored or coauthored by Chomsky.²⁰ Under the heading “Linguistic Books by Noam Chomsky,” MIT lists thirty-three books.²¹ Overall, Chomsky has authored and coauthored over one hundred books.²²

In 1992, in an article titled “Chomsky Is Citation Champ,” MIT News reported that scholarly references to Chomsky’s work in the Arts and Humanities Citation Index between 1980 and 1992 “make him the most cited living person in that period and the eighth most cited person overall,” just behind the Austrian psychoanalyst Sigmund Freud and just ahead of the German philosopher G.W.F. Hegel, with “the top ten cited sources during that period [being] Marx, Lenin, Shakespeare, Aristotle, the Bible, Plato, Freud, Chomsky, Hegel and Cicero.” MIT News also reported that “from 1972 to 1992, Chomsky was cited 7,449 times in the Social Science Citation Index—likely the greatest number of times for a living person there as well,” and that from 1974 to 1992 “he was cited 1,619 times in the Science Citation Index.”²³

Alan Morton Dershowitz was born in Brooklyn in 1938, where he graduated from Brooklyn College in 1959. Three years later, Dershowitz graduated first in his class from Yale Law School, where he was editor of the Yale Law Journal. After clerking for David Bazelon, chief judge of the United States Court of Appeals for the District of Columbia, and U.S. Supreme Court Justice Arthur Goldberg, Dershowitz was hired as an assistant professor by Harvard Law School in 1964, thereafter becoming full professor in 1967 at the age of twenty-eight, the youngest full professor in the history of the law school. He has held the Felix Frankfurter chair at Harvard since 1993.²⁴

According to Dershowitz’s Web site, he has taught courses in criminal law, psychiatry and law, constitutional litigation, civil liberties and violence, comparative criminal law, legal ethics, human rights, the Bible and justice, great trials, and neurobiology and the law. Dershowitz also has been awarded honorary degrees and medals from Yeshiva University, Syracuse University, Hebrew Union College, the University of Haifa, Monmouth College, Fitchburg College, and Brooklyn College. The Anti-Defamation League of B’nai B’rith presented him with the William O. Douglas First Amendment Award for his “compassionate eloquent leadership and persistent advocacy in the struggle for civil and human rights.” The New York Criminal Bar Association honored Dershowitz for his “outstanding contribution as a scholar and dedicated defender of human rights.” And the Lawyers’ Club of San Francisco has honored him as a “Legend of the Law.” Dershowitz also “has lectured throughout the country and around the world to more than a million people—from Carnegie Hall to the Kremlin.” In 1979 he was awarded a Guggenheim Fellowship for his work in human rights. In 1981 he was invited to China to lecture and consult on their criminal code. He returned to China in 2001 to lecture to lawyers and law students. In 1987 he was named the John F. Kennedy-Fulbright Lecturer and toured New Zealand lecturing about the U.S. Bill of Rights. In 1988 he served as Visiting Professor of Law at the Hebrew University in Jerusalem and lectured in Israel on civil liberties during times of crisis. In 1990 he was invited to Moscow to lecture on human rights.²⁵

Dershowitz has authored twenty-four nonfiction and three fiction books.²⁶ He also has authored or coauthored more than one hundred articles in magazines and journals,²⁷ including eleven in law journals.²⁸ He has written over one thousand opinion articles,²⁹ including these post–9/11 pieces: “Targeted Killing Vindicated” (about the killing of Osama bin Laden, 2011), “The Hypocrisy of ‘Universal Jurisdiction’” (2009), “Targeted Killing Is Working, So Why Is the Press Not Reporting It” (2008), “The Geneva Conventions: Enabling Terror Through Rules of War” (2004), “Killing Terrorist Chieftains Is Legal” (2004), “Stop Winking at Torture and Codify It” (2004), “Rules of War Enable Terror” (2004), “The Straw Man Argument against Extra-Judicial Killings of Terrorist Leaders” (2004), “The Laws of War Weren’t Written for This War” (2004), “Edward Said: The Palestinian Meir Kahane” (2003), “UN Sends Message That Terrorism Is OK” (2003), “Chomsky’s Immoral Petition” (2002), “Is Torture of Terror Suspects Ever Justified?” (2001), “Is There a Torturous Road to Justice?” (2001), “The Parallels between U.S. and Israel on Terror” (2001), and “Big Brother Where Art Thou? Rethinking Liberty in the Age of Terrorism” (2001).

By his own account, Dershowitz would like to see the United States transformed into a “preventive state”³⁰ with a reinvented jurisprudence that would facilitate counterterrorist methods that have been traditionally viewed as unconstitutional in the domestic context and violations of international law in the foreign policy setting. Although, obviously, the United States government needs to protect its citizens, cities, and infrastructure from terrorist attacks, Dershowitz’s “preventive state” would likely increase the threat of terrorism while undermining the Bill of Rights. In a 2008 interview, Dershowitz spoke at length about his jurisprudence of the preventive state:

My current life work has been to try to find the jurisprudence that constrains what I call the “preventive state.” The state now is moving much more from reacting to violence—deterring people from committing violence by punishing those who’ve already done it—to a proactive, preemptive, preventive mode. Moving in. Stopping people from doing it. Preventive detention such as that which exists in Guantanamo and many other places around the world today. Preventive intelligence gathering. The use of cyberspace and picking up of conversations in space. The use of preventive interrogation, including torture. All of these things are part of one of the most important and yet unwritten about phenomena in the world. The preventive state. The state moving in early. Trying to anticipate. The state moving in against sexual predators. The state moving in against potential terrorists. And what I’ve been trying to do is construct a jurisprudence for that phenomenon.³¹

Although Dershowitz asserts here that his mission is to “constrain” what he depicts as the ineluctable momentum in the United States toward a preventive state, further reading demonstrates that Dershowitz in fact supports such a change, and that his intention “to construct a jurisprudence for” and to “regulate”³² the preventive state are aspects of his overall efforts to see it formally legalized.

At the moment, Dershowitz recognizes that the contemporary frontiers of the preventive state—including preventive surveillance, preventive detention, preventive interrogations, preventive assassinations, and preventive wars, all of which are now employed or advocated by the United States (and Israel) to one degree or another—violate traditional American law; yet, Dershowitz is remarkably tolerant of these innately unconstitutional practices and writes about them mostly as an advocate of their legalization and regulation. This is evident in the same interview, where he continued at length:

My large project, which I have been working on for probably—since 9/11 in the short term but almost all of my professional life in the long term—is this notion of the preventive state. That the Constitution, and our legal system, was built on the premise that we wait until people commit crimes, then we indict them, and prosecute them, give them all the due process safeguards, apply a standard of “better ten guilty go free than one innocent be wrongly convicted.” We’ve worked on that jurisprudence for thousands of years. The Bible was based on that jurisprudence; Christian legal systems and theology [are] based on that system; Islamic and Anglo-American and Western [law], in general.

But we’re seeing a paradigm shift. We are now not able, it is thought, to wait until the crime is committed, particularly if the crime is a nuclear attack, a terrorist attack with biological weapons, with chemical weapons; sexual predators running rampant, drunken drivers killing people on the streets. All these potential dangers and harms have moved us ever closer so subtly, but very, very discernibly, toward the preventive state, where the state is empowered to move in before you’ve done any of these terrible things, and to try to stop you from doing them in advance.

“An ounce of prevention is a worth a pound of cure.” “A stitch in time saves nine.” We all know the clichés. But how do you turn those clichés into a jurisprudence? Is it better for ten potential nuclear terrorists to go free than for one potential suspect to be detained for six months while we check out and see whether in fact he is a terrorist? The mantra of “better ten” doesn’t really work.

Can we hold people? And for how long can we hold them? And under what circumstances can we hold them because we strongly suspect that they are planning to do something terrible? If we can hold them, what can we do to them? Can we punish them? Can we coerce them? Can we make them provide information, real-time information, to help us prevent these terrible acts? If so, by what means? . . . Can we create profiles, whether they be based on ethnicity, race, and religion, or a combination of factors which include but aren’t limited to these kinds of crude predictors? How good are we at predicting? How do we test the accuracy of our predictions? . . .

The courts are going to have to come to grips with these issues, and they don’t have a clue as to how to begin, because there is no on-the-ground jurisprudence that can deal with this developing phenomenon.

Our legal system traditionally has been based on a theory of deterrence. You threaten punishment and if somebody does a criminal act you punish them. You do something to them that they don’t want to have happen to them. You put them in prison. You execute them, in extreme cases. The new paradigm of suicide terrorism makes our system of deterrence very hard to operate, especially coupled with individual guilt and individual responsibility. You could deter terrorism if you punish the families of the terrorist, but we can’t do that because we believe in individual guilt. So the combination of the use of deterrence and the requirement of individual guilt makes it impossible for us to use the traditional legal methods and legal threats against suicide terrorists. That’s why we need to move in preemptively. That’s why we have to stop it from happening before it happens. . . .

So that’s the problem. We haven’t figured out a solution to that because our usual approach to the rule of law doesn’t work. We need to create a new rule of law to govern the use of suicide terrorism.³³

Although, by his own words, the preventive state clashes with enlightened Western legal traditions, Dershowitz gradually drops his nominally descriptive narrative of the preventive state and observes in his own right that “our usual approach to the rule of law doesn’t work” with respect to suicide terrorism, and that “we need to create a new rule of law to govern the use of suicide terrorism.”

In addition to the U.S. domestic setting, there is a substantial international dimension to Dershowitz’s preventive state. Thus, in the same interview, and with respect to the suicide terrorist around whom he would like to construct a new jurisprudence of prevention for the United States, Dershowitz said:

Without trying to analogize humans to animals in any moral sense, when you have a person who will not fear death and will not stop from doing anything because of the threat of punishment, you really have to treat that person the way you would treat a wild tiger, or a wild lion. You don’t reason with a lion. You don’t try to deter a lion. You stop the lion by either building a cage between you and the lion or by disabling the lion or killing the lion. And that method has been adapted to the use against suicide terrorism.³⁴

Dershowitz here is addressing the challenge of deterring a would-be suicide terrorist who is not deterrable by the deterrence-based jurisprudence of Western law, given that a suicide terrorist by definition would not survive to face any trial or punishment. The remedy, for Dershowitz—which he asserts has already “been adapted to the use against suicide terrorism,” is to “cage” or “disable” or “kill” the suspected terrorist prior to the terrorist act—resembles Israel’s policy toward the occupied Palestinian territories, including the Gaza Strip, where the human inhabitants are literally “caged” by a fence around the entire perimeter of the strip,³⁵ “disabled” by a brutal economic embargo,³⁶ and “killed” via Israel’s policy of extrajudicial killings and repeated military invasions and incursions.³⁷ Dershowitz defends such measures by writing commentary such as “Terrorism Causes Occupation, Not Vice Versa”³⁸ and “The Palestinian Leadership Is Responsible for the Continuing Israeli Occupation of the West Bank.”³⁹

These views, like much of Dershowitz’s commentary, are at odds with a nearly unanimous international consensus about the causes of anti-American and anti-Israel terrorism, including as presented in a 1987 UN General Assembly Resolution on “measures to prevent international terrorism,” approved by a vote of 153 to 2 (the United States and Israel cast the two votes in dissent). The resolution asserted that “the underlying causes” of terrorism “lie in misery, frustration, grievance and despair and which cause some people to sacrifice human lives, including their own, in an attempt to effect radical changes.”⁴⁰ Chomsky, in contrast to Dershowitz, supported the resolution and its findings, and rebuked the United States and Israel for opposing it.⁴¹ The issue, then, of the causes of terrorism targeting the United States and Israel, and the policy remedies to prevent such terrorism, is a major source of disagreement between Chomsky and Dershowitz.