INTRODUCTION
1. Curt Anderson, “Aschroft Cites ‘Monumental Progress’ in U.S. War on Terrorism,” Associated Press, February 13, 2003.
2. Ibid.
3. Transcript of Senate Judiciary Committee confirmation hearing; accessible at http://www.nytimes.com/2005/01/06/politics/06TEXT-GONZALES.html.
4. Deuteronomy 21:18.
5. Lombroso believed that criminality was inherited and that someone could be born a criminal—that criminals possessed physical defects characteristic of primitive animals. As a result, one could identify a criminal from physical traits like the size of his jaw or the shape of his nose.
6. Sheldon and Eleanor Glueck, my former colleagues at Harvard and pioneers in the prediction of juvenile delinquency, maintained that they could spot potential criminals at an early age by observing aspects of their family life, and some biologists now assert, on the basis of rather flimsy evidence, that they could identify potential criminals by examining the chromosomal structure of their cells. Alan M. Dershowitz, Shouting Fire: Civil Liberties in a Turbulent Age (New York: Little Brown, 2002), p. 235.
7. Edward Rothstein, “Museum Review: The Tainted Science of Nazi Atrocities,” New York Times, January 8, 2005, p. B7.
8. Ibid. Even one of Hitler’s own relatives, a forty-nine-year-old woman identified as Aloisia V., was gassed as an “idiotic progeny” on December 6, 1940. She apparently suffered from schizophrenia and other illnesses. Susanna Loof, “Hitler Relative Was Gassed in Nazi Program to Kill Mentally Ill People, Historians Say,” Associated Press, January 18, 2005.
9. Rothstein, op. cit.
10. The problem with this approach is that even if 90 percent of certain types of criminals have a particular genetic marker, it may also be true that only 1 percent of people with that marker will become criminals. See Alan M. Dershowitz, “Karyotype, Predictability and Culpability,” in Genetics and the Law, ed. Aubrey Milunsky and George J. Annas (New York: Plenum Press, 1976), pp. 63–71. See Appendix B, p. 268.
11. Cass R. Sunstein, Laws of Fear: Beyond the Precautionary Principle (New York: Cambridge University Press, 2005), p. 15.
12. Ibid., p. 13.
13. “The Year in Ideas: A to Z,” New York Times Magazine, December 9, 2001, p. 92.
14. Sunstein, op. cit., p. 4 (notes omitted).
15. Ibid., p. 14.
16. Lewis Carroll, The Annotated Alice (New York: Norton, 2000), pp. 196–98.
17. Everett v. Ribbands, 2 Q.B. 198 (1952), p. 206.
18. There are morally unacceptable tactics, such as the killings of innocent relatives of suicide bombers that could deter some such suicide terrorists, but no democracy should employ such tactics.
19. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769), vol. 4, p. 25; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch2.htm.
20. See p. 175 for a discussion of the statement made by Hashem Rafsanjani, the former president of Iran, suggesting that it might be worth it to drop a nuclear bomb on Israel, killing five million Jews, even if Israel’s retaliation would kill fifteen million Iranian Muslims.
21. “In Defense of Deterrence,” New York Times, September 10, 2002, p. A24.
22. Ibid. International law probably prohibits retaliation against civilians for an attack on civilians. See p. 74. Thus the entire theory of tit-for-tat deterrence may well be technically illegal.
23. Ibid.
24. Ibid.
25. Ibid.
26. To be sure, Germany was in violation of its treaty obligations, but as the international reaction to the American invasion of Iraq shows, mere violation of treaties is not always seen as a justification for military action.
27. See pp. 146–47 for a discussion of the decision of the International Criminal Tribunal for Rwanda.
28. “Some Prior Restraints Squeaked by in Past Year, Says PLI Panel,” Media Law Reporter, vol. 30, no. 46 (November 26, 2002); accessible at http://ipcenter.bna.com/pic2/ip.nsf/id/BNAP-5G5L3N?OpenDocument.
29. For an analysis of variations on this maxim, see Alexander Volokh, “n Guilty Men,” University of Pennsylvania Law Review, vol. 146 (1997), pp. 173–216.
30. Constructing a jurisprudence requires complexification, quantification, qualification, and simplification. See p. 244.
31. The nature of the harm includes both its qualitative and quantitative aspects. Each can be placed on continua. For example, death would be at one end, with inconvenience at the other end. Multiple deaths are an obviously serious harm, warranting considerable costs and inconveniences. But if inconvenience for millions is weighed against one death, reasonable people might disagree about how to strike the balance. For example, a decision to raise the speed limit from 55 mph to 65 mph may be seen as weighing the convenience of many more heavily than the potential loss of some lives.
32. This oversimplifies reality. In the real world, there will often be a range of intermediate steps between doing nothing and taking strong preemptive measures that could be taken and that might reduce, but not eliminate, the feared harm.
33. These costs could include various categories of human life, such as enemy soldiers, one’s own soldiers, enemy civilians, etc. It could also include financial costs, political costs, and other such factors. Some costs will be short-term, others longer-term. Some will be easily calculable, others less so. Sometimes the criteria for determining “success” will be obvious. Other times it will not be.
34. Seriousness of the harm is a product of its nature (e.g., death), degree (e.g., how many deaths), irrevocability (death is more irrevocable than minor physical injury or temporary economic consequences), and other such factors.
35. United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). This effort at constructing a formula for balancing relevant factors in the free speech context followed by three years a similar effort to quantify a complex problem in the context of maritime torts:
[T]here is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) the probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at times.
United States v. Carroll Towing Co., Inc., 159 F.2d 169, 173 (2d Cir. 1969). This decision, like United States v. Dennis, was written by Judge Learned Hand.
36. See Sunstein, op. cit. See also Brandenburg v. Ohio, 395 U.S. 444 (1969).
37. Vargas-Figueroa v. Saldana, 826 F.2d 160, 162 (1st Cir. 1987). Justice Breyer wrote this opinion when he was on the Court of Appeals. A common formulation is the following: “(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.” Women’s Community Health Center, Inc. v. Cohen, 477 F. Supp. 542, 544 (D. Me. 1979).
38. This decision might cover a range of different attacks, from wholesale nuclear to retail terrorist killings.
39. As we shall see in Chapter 5, there may be important differences between wars that are preemptive and those that are preventive.
40. This decision may cover steps as diverse as committing sexual psychopaths to institutions and the targeted killing of unarrestable ticking bomb terrorists.
41. There are of course many past reconstructions that can be confirmed by incontrovertible and self-proving evidence, but there are many that cannot.
42. There are interesting epistemological issues about what is meant by there being a 90 percent likelihood that a given event, which either occurred (100 percent) or did not occur (0 percent), may have occurred. What I mean is that if thousands of decisions were made on the basis of this quality and quantity of evidence they would turn out be correct (to the extent that can be known) 90 percent of the time. I am not aware of any good, double-blind experiments that ask subjects to make predictive and retrospective decisions (will or did a given event occur?) based on comparable information, complexity, temporal proximity, and likelihood. For example, subjects could be given a detailed history of a somewhat psychopathic person. Half could then be asked to determine, on the basis of this information, whether he had committed a specific crime (say, rape, robbery, or murder) within the past year. The other half could be asked to predict whether he would commit such a crime within the next year. To add complexity to this issue, any “good” predictor of crime would want to know whether the person had committed recent past crimes, since the past is the best predictor of the future, at least when it comes to certain kinds of crimes. The contrary is probably also true: If a person will commit certain types of crime in the future, it is more likely that he has committed other crimes in the past. For certain types of unique crime—e.g., passion killing of a particular love-hate object and highly situational crimes—neither of these relationships will necessarily hold true. Since most conclusions that a person did, in fact, commit a past crime are themselves probabilistic, this adds a further complexity to any predictive decision based on past conduct. This is prevalent in literature on predicting pretrial violence in the context of setting bail. See, for example, Thomas Bak, “Pretrial Release Behavior of Defendants Whom the U.S. Attorney Wished to Detain,” American Journal of Criminal Law, vol. 30 (2002–03), pp. 45–74. I predict that such experiments would show—or if any have been conducted, I postdict they have shown—little difference in actual outcomes, though the subjects might be more confident in their retrospective than in their predictive judgments. There are numerous experiments that purport to compare predictive and postdictive decisions but not quite in this way. See Paul E. Meehl, Clinical versus Statistical Prediction: A Theoretical Analysis and a Review of the Evidence (Minneapolis: University of Minnesota Press, 1954).
43. See United States v. Booker, 125 S.Ct. 738 (2005).
44. See Chapter 7.
45. Mishnah Peah 1:1.
46. Genesis 18:23–27, 29–33.
47. Maimonides articulated a similar principle hundreds of years before Blackstone: “If we do not punish on very strong probabilities, nothing can happen other than that a sinner be freed; but if punishment be done on probability and opinion it is possible that one day we might kill an innocent man—and it is better and more desirable to free a thousand sinners, than ever to kill one innocent.” Maimonides, Sefer HaMitzvot, Negative Commandments no. 290, quoted in Nachum L. Rabinovitch, “Probability and Statistical Inference in Ancient and Medieval Jewish Literature,” diss., University of Toronto, 1971, p. 157.
48. As we shall see, preventive and preemptive wars are distinguished largely by the temporal proximity of the feared attack. See p. 59.
49. Exodus 22:2.
50. Talmud Sanhedrin 72a.
51. Haim Cohen, Dangerous Halakhah, p. 42; accessible at http://www.come-and-hear.com/supplement/free-judaism-cohen.rtf.
52. Ibid.
53. Ibid., p. 31.
54. Shlomo Shamir, “Had It Been Mitzna, They Would Have Gone Nuts,” Ha’aretz, May 18, 2005; accessible at http://www.jpef.net/may05/Had%20it%20been.pdf.
55. See, for example, Alan M. Dershowitz, “Preventive Confinement: A Suggested Framework for Constitutional Analysis,” Texas Law Review, vol. 51 (1973), pp. 1277–1324; Alan Dershowitz, “The Origins of Preventive Confinement in Anglo-American Law,” University of Cincinnati Law Review, vol. 43 (1974), pp. 1–60, and 781–846; Alan M. Dershowitz, “Indeterminate Confinement: Letting the Therapy Fit the Harm,” University of Pennsylvania Law Review, vol. 123 (1974), pp. 297–339; and Alan M. Dershowitz, “Psychiatry in the Legal Process: A Knife That Cuts Both Ways,” Trial (February–March 1968), pp. 29–33.
56. See, for example, Dershowitz, Shouting Fire, loc. cit., pp. 233–45; and Dershowitz, “Preventive Confinement,” loc. cit.
57. See, for example, Dershowitz, Shouting Fire, loc. cit., pp. 431–56 (originally published in 1971); Ibid., pp. 416–30 (originally published in the Nation [March 15, 1971]).
58. See, for example, Dershowitz, “Karyotype, Predictability and Culpability,” loc. cit.; and Dershowitz, “Preventive Disbarment: The Numbers Are against It,” American Bar Association Journal, vol. 58 (August 1972), pp. 815–19. (See the appendices to this book.)
59. See, for example, Dershowitz, “Psychiatry in the Legal Process,” loc. cit.; Dershowitz, “Imprisonment by Judicial Hunch: Case against Pretrial Preventive Detention,” Prison Journal, vol. 50 (1970), pp. 12–22; and Dershowitz, “Preventive Detention: Social Threat,” Trial (December–January 1969–1970), pp. 22–26.
60. See, for example, Dershowitz, “The Origins of Preventive Confinement in Anglo-American Law,” loc. cit.
CHAPTER 1.
A BRIEF HISTORY OF PREEMPTION, PREVENTION, AND PREDICTION IN THE CONTEXT OF INDIVIDUAL CRIME
1. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769), vol. 4, p. 248; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm.
2. Maung Hla Gyan v. Commissioner, Burma Law Reps. 764 (1948), p. 766.
3. A slew of nations have borrowed from the Anglo-American legal system. Kenya, Switzerland, South Africa, the Czech Republic, and the Marshall Islands are but a few examples. Iraq’s constitution will also reflect Anglo-American legal principles because the United States played an important role in overseeing it. See Neil Mac-Donald, “Iraq Constitution Will Draw Heavily From Transitional Law, Says Zoellick,” Financial Times, May 20, 2005, p. 9.
4. Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown, 1881), pp. 46, 43.
5. Blackstone, op. cit., vol. 4, p. 249; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm.
6. Jerome Hall, a leading theoretician, echoed Wharton in asserting that ours is a “legal order which does not recognize prevention as a sufficient ground of punishment. . . .” Jerome Hall, General Principles of Criminal Law (Indianapolis: Bobbs-Merrill, 1960), p. 219. Francis Wharton, Treatise on Criminal Law (Rochester: Lawyers Co-operative Publishing Company, 1932), p. 2.
7. Caesar Bonesana, Marquis Beccaria, An Essay on Crimes and Punishments (Philadelphia: Nicklin, 1819), pp. 148, 47.
8. Immanuel Kant, Metaphysical Elements of Justice (Indianapolis: Hackett, 1999), p. 138. To allay all doubts that this principle was indeed a “categorical imperative,” Kant constructed his oft-quoted hypothetical: “Even if a civil society were to dissolve itself by common agreement of all its members (for example, if the people inhabiting an island decided to separate and disperse themselves around the world), the last murderer remaining in prison must first be executed. . . .” Ibid., p. 140.
9. Indeed, Holmes espoused, in rather categorical terms, an “external” theory that abjured prying into motives and tendencies and focused almost single-mindedly on inducing “external conformity to rule.” Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown, 1881), p. 49.
10. Ibid., p. 46.
11. Blackstone, op. cit., p. 249.
12. Even Wharton, who proposed an “absolute” theory of punishment, under which “crime as crime must be punished,” acknowledged that all theories of guilt must ultimately “rest more or less on the danger of crime to society” and that “one of the objects of penal discipline” is to place the offender “in a condition in which he cannot be guilty of future mischief.” Francis Wharton, Wharton’s Criminal Law (Rochester: Lawyers Co-operative Publishing Company, 1932), vol. 2, p. 12. Professor Hall, who insists on the commission of past “harm” as a condition to imposing criminal punishment, would also consider future “dangerousness” as relevant in some contexts. Hall, p. 222.
13. Frederick Pollock and Frederic William Maitland, The History of English Law (Cambridge: Cambridge University Press 1898), vol. 2, p. 475.
14. Code of Hammurabi, sections 116, 209–10, and 229–30; accessible at http://www.wsu.edu/~dee/MESO/CODE.HTM.
15. Payment of this bot could, under certain circumstances and for “emendable” crimes, satisfy the victims and the state. It was also somewhat preventive, insofar as any painful response is preventive, in that it made crime expensive and thus presumably reduced its frequency.
16. Pollock and Maitland, op. cit., vol. 2, p. 478. This practice was described as follows:
Though we must not speculate about a time in which there was no law, the evidence which comes to us from England and elsewhere invites us to think of a time when law was weak, and its weakness was displayed by a ready recourse to outlawry. It could not measure its blows; he who defied it was outside its sphere; he was outlaw. He who breaks the law has gone to war with the community; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a “friendless man,” he is a wolf. Even in the thirteenth century, when outlawry had lost its exterminating character and had become an engine for compelling the contumacious to abide the judgment of the courts, this old state of things was not forgotten; Caput great lupinum—in these words the courts decreed outlawry.
Ibid., vol. 2, p. 449.
17. This argument has been repeatedly offered against efforts to construct a jurisprudence of torture. See, for example, Richard H. Weisberg, “Loose Professionalism, or Why Lawyers Take the Lead on Torture,” in Torture: A Collection, ed., Sanford Levin-son,(Oxford: Oxford University Press, 2004), pp. 299–305.
18. Roscoe Pound, Introduction to Raymond Saleilles, The Individualization of Punishment (Boston: Little, Brown 1911), p. XI.
19. “Dispose” is a particularly apt word because for generations dangerous people were simply disposed of outside the formal legal system, without much concern for the niceties of the formal legal system. See pp. 39–40.
20. Williamson v. United States, 184 F.2d 280 (2d Cir. 1950), p. 280. See also Albin Eser, “The Principle of Harm in the Concept of Crime,” 4 Duquesne Law Review, 345 (1965–66), p. 436.
21. Pollock and Maitland, op. cit., vol. 2, p. 507.
22. Ibid., vol. 2, p. 508, n. 4. If the authors meant to include the period after the Norman Conquest, then they were plainly in error, as is demonstrated in J. G. Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge: Cambridge University Press, 1970). Bellamy gives numerous early illustrations of a very broad construction of both “high treason” and “petty treason.” See, for example, J. G. Bellamy, The Law of Treason in England in the Later Middle Ages, 1st paperback ed. (Cambridge: Cambridge University Press, 2004), pp. 61, 130, 132, 133, 135.
23. Attributed to C.J. Brian at “the end of the middle ages,” quoted in Dershowitz, “Preventive Confinement,” op. cit., p.10.
24. Jerome Hall, “Criminal Attempt—A Study of Foundation of Criminal Liability,” Yale Law Journal, vol. 49 (1940), p. 791. Hall cites Henry de Bracton for the proposition that harm was caused before the criminal liability could be imposed: “For what harm did the attempt cause, since the injury took no effect.” Sir Travers Twiss, ed., Henrici de Bracton de Legibus et Consuetudinibus Angliae (London: Longman & Co., 1879), vol. 2, p. 337. He then summarized the thirteenth-century compiler’s views as follows: “Bracton plainly reveals a strong bias against penalizing any conduct short of action which resulted in actual injury, and ‘injury’ had crude, physical denotation set by the then-proscribed felonies.” Hall, op. cit., p. 791.
25. Such an act would of course have been recognized as an assault at a certain stage in the development of the law.
26. Deuteronomy 17:6. The Bible does provide for the execution of a “stubborn and rebellious” child: “And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton and a drunkard. And all the men of his city shall stone him with stones, that he die. . . .” Deuteronomy 21:20–21. The Talmud suggests that rebellious sons were not actually executed. Rabbi Jonathan said “he had once seen such a one and sat on his grave” (Sanhedrin 71a). The Talmud itself made it virtually impossible to execute a rebellious son, since he had to be thirteen years of age to bear criminal responsibility but still young enough to be a “son” and not a man. Professor Menachem Elon views the biblical rule as “intended to limit the powers of the paterfamilias: the head of the household could no longer punish the defiant son himself, according to his own whim, but had to bring him before the elders (i.e., judges) for punishment. In earlier laws (e.g., Hammurabi Code nos. 168, 169) only the father had to be defied; in biblical law, it must be both father and mother.” See generally Menachem Elon, The Principles of Jewish Law (Jerusalem: Encyclopaedia Judaica, 1974), p. 491.
27. Talmud Sanhedrin 81b.
28. The Bible also prescribes “cities of refuge” designed to prevent blood avengers from taking revenge against innocent people who had accidentally killed. See Numbers 35:9–34. Recent research suggests that the urge for revenge may well have a genetic component. See Benedict Carey, “Payback Time: Why Revenge Tastes So Sweet,” New York Times, July 27, 2004, p. F1. Even if this is true, it does not follow that law should not try to channel it in morally proper directions, as it sought to do with regard to the biblical cities of refuge.
29. This has been true in modern times with regard to bail. When it was relatively easy to deny pretrial release to dangerous defendants, we did not need an explicit system of preventive detention. As the law made it more difficult to use bail in this way, the need for preventive detention increased. See William F. Duker, “The Right to Bail: A Historical Inquiry,” Albany Law Review, vol. 42 (1977), pp. 33–120.
30. Williamson v. United States, 184 F.2d 280, 282 (2d Cir. 1950). See also 18 USC § 3043 (1970).
31. Pollock and Maitland suggest that during the Anglo-Saxon period, “great difficulty was found both in obtaining specific evidence of offenses, and in compelling accused and suspected persons to submit themselves to justice. . . .” Pollock and Maitland, op. cit., vol. 1, p. 49. This may help explain a provision, apparently originating during that period, against persons described as “frequently accused.” Ibid., vol. 1, p. 50. Such a person could be arrested “and treated as an outlaw if he failed to give security. . . .” Ibid. The “oldest dooms” provided penalties for “plotting” against the king, even though the act of plotting did not in itself produce any harm. Charles Austin Beard, The Office of Justice of the Peace in England: in Its Origin and Development (New York: Columbia University Press, 1904), pp. 13–14. Under the later Saxon kings and certainly by the time of the Norman Conquest, preventive laws were enacted whereby “all men were bound to combine themselves in associations of ten, each of whom was security for the good behavior of the rest. . . .” James Stephen, A History of the Criminal Law of England (London: Macmillan, 1883), vol. 1, p. 65.
In early times the tithing group was an effective way of both preventing crime and apprehending criminals, particularly in small villages. An early writer describes the tithing groups as follows: “In the Saxon times, every hundred was divided into ten districts or tithings, each tithing made up of ten Friborgs, each Friborg of ten families, and within every such tithing, there were tithing-men to examine and determine all lesser causes between villages and neighbors, but to refer all greater matters to the Superior Courts.” Thomas Blount, Glossographia Anglicana Nova: or a Dictionary Interpreting Such Hard Words of Whatever Language as Are Presently Used in the English Tongue with Their Etymologies, Definition, etc. (London: D. Brown, 1707), quoted in Dershowitz, “Origins of Preventive Confinement in Anglo-American Law,” loc. cit., p. 13, n. 40. The tithing group was held as surety for its members. If a member of the tithing group was accused of a crime, the entire group was responsible for producing the suspect under penalty of a rather heavy amercement, or fine. As Pollock and Mait-land write, “The strict enforcement of these rules is abundantly proved by the rolls of the itinerant justices. When an accused person is not produced, his township is amerced if he was not in a tithing . . . , and, if he was in a tithing, then that tithing is amerced.” Pollock and Maitland, op. cit., vol. 1, pp. 568–69.
A similar, though later, device—watch and ward—was developed in the thirteenth century. This system, consolidated in 1285 by the Statute of Winchester, put the town or village on watch, especially during times of political unrest. The villagers were to watch for any suspicious-looking persons, and any stranger who could not give a good account of himself was to be pursued with “hue and cry.” For a good account of the uses of watch and ward, extending back to times before the statutory enactment, see F. M. Powicke, King Henry III and the Lord Edward: The Community of the Realm in the Thirteenth Century (Oxford: Clarendon Press, 1947).
32. Pollock and Maitland, op. cit., vol. 1, p. 154.
33. The degree to which the Great Charter spoke to rights, especially the right of trial by jury (“by peers”) is unclear. The charter did seek to guarantee the continuance of the king’s writs, such as novel disseisin, mort d’ancestor, simply because royal justice was more efficient than either local justice or self-help. See Doris M. Stenton, English Justice between the Norman Conquest and the Great Charter, 1066–1215 (Philadelphia: American Philosophical Society, 1964). Indeed, the main thrust of the Great Charter was probably to maintain these writs and to end the abuse by the king of the traditional feudal incidents, especially wardship and relief. It is manifest that the rights to which the charter spoke were limited in application to a small proportion of the population. As Professor Samuel Thorne has written, “For a formula of politics, some theory of the state, we search it [the Great Charter] in vain. What we find instead— speaking generally, for its miscellaneous provisions cannot be summed up in a phrase—is a series of clauses regulating the relations between the king and the men of his realm. These latter are in general the tenants-in-chief, those who hold their great fiefs directly of the king, but the interests of others less exalted are not disregarded.” Samuel E. Thorne, “What Magna Carta Was,” in The Great Charter, ed. Samuel E. Thorne et al. (New York: Pantheon, 1965), p. 3.
The chapter of the charter usually cited as the guarantor of rights, at least in criminal prosecutions, is Chapter 39, which reads: “No freeman shall be taken or [and] imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by lawful judgment of his peers or [and] by the law of the land.” Quoted in Thorne et al., op. cit., p. 132. This was clearly an exclusive right, and it seems at first to be limited to “peers”—that is, tenants in chief. The development into a general right appears to have been quite slow. Professor Faith Thompson writes:
Taking the fourteenth century as a whole, the sources examined reveal more references to chapter 29 [39] than to any other one provision of the charter. Moreover, it becomes apparent that this famous provision had its reputation pretty well established in these years and that there was less of novelty in later interpretations than is commonly supposed. In this period the per judicium parium was still appealed to as a guarantee “[t]hat execution should be preceded by a judgment.” It was believed to confer trial as well as judgment by peers, and trial in which lawful procedure must be observed. In this period the liber homo lost whatever aristocratic connotation it had ever had and was construed as equivalent to “any freeman” or even “anyone, whoever it may be.”
Faith Thompson, Magna Carta: Its Role in the Making of the English Constitution, 1300–1629 (Minneapolis: University of Minnesota Press, 1948), p. 69.
The Magna Carta, however, was not without the bigotry of its times. For example, Chapters 10 and 11 provide: “If one who has borrowed from the Jews any sum, great or small, die before that loan be repaid, the debt shall not bear interest. . . . And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt. . . .” Quoted in Thorne et al., op. cit., p. 119.
34. Pollock and Maitland expressed the belief that during this era crimes of violence were common and “the criminal law was exceedingly inefficient.” Pollock and Maitland, op. cit., vol. 1, p. 557 (citing figures for the years 1221, 1256, and 1279), quoted in Dershowitz, “Preventive Confinement,” op. cit., p. 15.
35. This language comes from Michael Dalton, The Countrey Justice (London: printed for the Societie of Stationers, 1661), describing the traditional function of the conservator of the peace.
36. By the time the Assize of Clarendon was issued (1166), it certainly could no longer be said, if ever it could, that the criminal law was exclusively or even predominantly retrospective in focus. Henry II’s assize directed, “for the keeping of the peace and the maintenance of justice, that enquiry be made in every county . . . whether any man . . . is suspected or rumoured to be a robber or murderer or a receiver of robbers or murderers. . . . And let the justices enquire into this, and the Sheriffs also.” Translated and reprinted in A. K. R. Kiralfy, A Source Book of English Law 1 (London: Sweet & Matwell, 1957). This and other twelfth-century enactments do not reflect an entirely retrospective system of justice based exclusively on revenge for completed harms, as some commentators would have it. A retrospective system would of course provide for the punishment of murderers, robbers, and arsonists, but it would not necessarily “insure enquiry” or search out all persons “suspected or rumoured” to have committed these crimes in the distant past. Enquiry and searching out, as well as “exile” and “pledges,” are forward-looking, preventive techniques designed to reduce the frequency of future crimes; they are not backward-looking techniques designed exclusively to expiate past harms.
Ten years later, in the Assize of Northampton, the list of crimes to be searched out was expanded to include larceny, forgery, and arson; the punishments were made more severe as well (including loss of hand and foot if the suspect passed the ordeal, and death if he failed it). The 1176 edict also provided for “pledges” if the defendant “came clean through”; if, however, he was “suspected of murder or other foul felony by the general opinion of the county,” even if he “came clean,” then “he must go into exile within forty days. . . .”
37. Beard, op. cit., p. 17. Legal historian John Bellamy wrote: “The forerunner of these justices was the keeper of the peace, who first emerged in the guise of a local military lieutenant during the civil war of 1263–5. Edward I on two occasions appointed keepers of the peace in each county to assist the sheriff, but it was his son who first issued regular commissions to them. Until 1329 the keepers had power only to record breaches of the peace, but in that year and then intermittently until 1389 when the duty was made permanent, the keepers and their successors, the justices of the peace, were empowered to determine felonies and trespasses.” John Bellamy, Crime and Public Order in England in the Later Middle Ages (London: Routledge & Kegan Paul 1973), pp. 94–95.
38. Beard, op. cit., p. 18.
39. Ibid., p. 21. These conservators were also authorized to arrest and commit to the nearest “gaol” all “disturbers of the peace,” a catchall phrase that was apparently intended to include dangerous individuals who could not be convicted of specific past offenses. In the Commission of 1313, specific reference was made to persons “who were suspected notoriously”; these persons were to “be kept in custody.” By the end of Edward II’s reign the conservators were authorized to disperse “seditious assemblies” and to punish, according to their discretion, all “malefactors” and “all those who were disobedient or contrary.” Ibid., pp. 27–28. Preventive sanctions took a variety of forms. Although large-scale imprisonment did not begin until many centuries later, confinement in jails and dungeons was employed against dangerous persons.
40. Ibid., p. 41.
41. Ibid., p. 41. The justices were “duly to punish” those who could not comply. The express purpose of this statute was to prevent people from being put in the peril of rioters, rebels, and other blemishers of the peace.
42. As with many other markers throughout history, it may well have been true that a large proportion of criminals had these markers, but it was probably also true that only a small proportion of people with these markers became serious criminals. See below.
43. Ibid., pp. 86–87. All first offenders were to be whipped; second offenders were “to be whipped, set in pillory and lose an ear”; and third offenders were to be whipped, set in pillory, “and lose the other ear.”
44. Ibid., p. 88.
45. Ibid., pp. 91–92.
46. That they have been used in a preventive way by modern-day police has been recognized by court decisions. For example, in Papachristou v. Jacksonville, 405 U.S. 156, 169 (1972), the Supreme Court acknowledged: “Future criminality . . . is the common justification for . . . vagrancy statutes.” Such statutes are deemed necessary “to deter vagabondage and prevent crimes.” See also Johnson v. State, 202 So. 2d 852 (Fla. 1967); Smith v. State, 239 So. 2d 250, 251 (Fla. 1970); Ricks v. District of Columbia, 414 F.2d 1097 (D.C. Cir. 1968).
47. Alan Macfarlane, Witchcraft in Tudor and Stuart England: A Regional and Comparative study (New York: Harper, 1970), p. 158 (citations omitted). Witchcraft prosecutions apparently constituted a significant proportion of the trials at certain times. Macfarlane has found that over the period 1560–1680, a rather large span of time, witchcraft indictments constituted 5 percent of all the criminal proceedings at the Essex Assizes. The trial of witchcraft was second only to the trial of thieves in the number of frequency at the Essex court. As Macfarlane wrote, “It was no peripheral, abnormal crime, but of central importance. As has been demonstrated, there were few years when indictments did not occur.” Ibid., p. 30. For similar ideas on the relationship between witchcraft prosecutions and other criminality, see George F. Black, Calendar of Cases of Witchcraft in Scotland 1510 to 1727 (New York: New York Public Library, 1938).
48. Michael Dalton (d. 1648) was the author of two legal works of high repute in the seventeenth century, including The Countrey Justice. The available evidence suggests that Dalton was never a barrister-at-law, was not a member of Lincoln’s Inn (although he dedicates The Countrey Justice to the masters of that society) or a master of Chancery, as is sometimes supposed. Dictionary of National Biography, ed. L. Stephen and S. Lee (1917), vol. 5, pp. 435–36. It is quite likely that Dalton’s work is a precise and accurate portrayal of the duties of a justice of the peace during the time in which he lived, though it must be noted that The Countrey Justice was written at a time (1618) of both centralization and political uncertainty. Another source, A. Fitzherbert, L’Office et Auctoryte des Justyces de Peas (1538), is more historical, though less detailed. See W. Lambarde, Eirenarcha: Or, of the Office of the Justice of Peace (1581).
49. Dalton, op. cit., p. 7.
50. Ibid.
51. Ibid., p. 2, quoted in Dershowitz, “The Origins of Preventive Confinement in Anglo-American Law,” loc. cit., p. 20 (emphasis added).
52. Ibid., p. 4 (emphasis added).
53. Ibid., p. 171 (emphasis added).
54. Ibid., p. 189 (emphasis added).
55. Ibid., p. 158 (emphasis added).
56. Ibid., p. 161.
57. Ibid., p. 192. The authority to bind on to “good behaviour” or to keep the peace was an important tool that seems to have been employed frequently by the justices of the peace (though Dalton never explicitly gave figures). The mechanism was simple: Any individual (with some special and limited exceptions) could come before a justice of the peace and demand that another named individual (also with some exceptions) be required to “find sureties for the peace”; the complainant had to swear that he or she was “afraid of” harm from the person complained of; this fear might derive from hostile or threatening acts, such as an “offer” or “threat” to strike, the bearing of weapons, or “an unusual number of servants or attendants. . . .” Further, the fear might derive from circumstances or reputation—for example, “if one hath received a wound,” the justice of peace might require a surety “until the wound be cured and the malice be over.” If the justice of peace found the fear to be reasonable, he “may by word command the same party to find sureties for the peace.” Ibid., pp. 158, 161, 163–65, in Dershowitz, “Origins,” loc. cit., p. 21.
58. Ibid., p. 165. These old laws were the predecessors to current orders of protection, injunctions against threatening persons, and stalking laws. Dalton did not make clear how long a person might be confined to jail “for default of sureties.” He did, however, specify certain circumstances under which release should be ordered: “after he that demanded the peace against him happen to die, or shall release the peace . . . for after such death or release, there seemeth no cause to continue the other in prison.” Ibid., p. 167. But the implication seems to be that absent an occurrence that eliminated, or reduced, the fear that prompted the demand for sureties, there would be no release so long as the danger continued. In practice, there may well have been informal, or even formal, limits on the duration of the confinement. If satisfactory sureties were found, the person complained against was released on recognizance. However, recognizance was forfeited by the commission of any actual breach of the peace or even any threat of or “menacing” breach. Ibid. p. 177, in Dershowitz, “Origins,” loc. cit., p. 22.
59. Ibid., pp. 362–63.
60. Much has been written, especially in recent years, about the jurisdiction of the justices of the peace over vagrants, rogues, and vagabonds. The crime prevention aspects of these laws have only recently come back into focus; previously, attention centered on their economic—poor law—aspects. See, for example, Ricks v. District of Columbia, 414 F.2d 1097 (D.C. Cir. 1968). The two aspects were obviously related.
61. Dalton, op. cit., p. 35 in Dershowitz, “Origins,” loc. cit., p. 23.
62. Ibid., pp. 36, 158.
63. Ibid., p. 65.
64. Ibid.
65. Ibid., p. 216, in Dershowitz, “Origins,” loc. cit., pp. 23–24 (emphasis added).
66. Ibid., p. 217, in Dershowitz, “Origins,” loc. cit., p. 24. An overt act was apparently required to convert an unlawful assembly into a “Rout”: “If after their first meeting, they shall ride, go, or move forward toward the execution of any such act (whether they put their intended purpose in execution, or not) this is a Rout.” The progression from inchoate to substantive crime is nicely illustrated by the next sentence: “And if they execute any such thing indeed, then it is a Riot.”
67. Ibid., p. 110. It is significant that the justice of the peace could not punish them by “fine, without an enquiry, which enquiry must be by a jury, and before two Justices of the Peace,” but a single justice was empowered to take “preventive action,” even if that preventive action took the form of imprisonment or forfeiture of expensive weapons and armor. Ibid., p. 111.
68. Ibid., p. 339. The “fighting words” doctrine excluded words inherently likely to provoke a violent reaction, those likely to cause a fight, from the protection of the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S. (1942), p. 568.
69. Ibid., pp. 371–72, in Dershowitz, “Origins,” loc. cit., p. 25. In addition to these characterological items of evidence, which are as probative of future dangerousness as of past guilt, there were some items that specifically related to the past offense of which the defendant was suspected. Among these were:
If he hath any blood about him
. . . or that his weapon be bloody. . . .
. . . [he] is blushing, looking downwards, silence, trembling.
The bleeding of the dead body in his presence [an “old wives’ tale” current in early times]
If he fled . . .
If he were the first that found the party Murdered.
70. The punishments for conviction of most past felonies was execution. It is not surprising therefore that the procedural and evidentiary requirements were more demanding.
71. Dalton, op. cit., p. 331, in Dershowitz, “Origins,” loc. cit., p. 26 (emphasis added).
72. W. Blackstone, op. cit., vol. 4, p. 352; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm. Blackstone was paraphrasing earlier formulations of this principle.
73. Ibid., p.253; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm.
74. Ibid., p. 249; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm. Though Blackstone reiterated Dalton’s view that no past crime was required before a person could be made to give sureties, he departed from Dalton in suggesting that a crime—or at least an act—was probably required before a recognizance would be deemed forfeited: “But not by barely giving fresh cause of suspicion of that which perhaps may never actually happen: for, though it is just to compel suspected persons to give security to the public against misbehavior that is apprehended; yet it would be hard, upon such suspicion, without the proof of any actual crime, to punish them by a forfeiture of their recognizance.” Ibid., p. 254; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm. Blackstone did not discuss the hardship of the person who was imprisoned, though merely suspected of future wrongdoing, because of his inability to produce sureties.
75. Ibid., vol. 4, p. 248 (emphasis added); accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm. Blackstone was wrong in suggesting that preventive justice was unique to English law. All legal systems have had analogous provisions. For example, the Carolina, a German ordinance promulgated in 1532, included at least two preventive provisions: Section 176 dealt with “detention of persons of whom crime and evil must, upon manifest ground, be anticipated,” and Section 195 provided for sureties upon “sufficient indication of bad intention regarding future criminal harm.” See John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge: Harvard University Press, 1974).
76. Blackstone, op. cit., vol. 4, p. 249; accessible at http://www.yale.edu/lawweb/avalon/blackstone/bk4ch18.htm. Even this division is too sharp, at least as a factual matter, since it is likely that in a great many instances the “probable suspicion” about a future crime was in fact based upon a suspicion’s falling short of the proof required for conviction of a “crime actually committed by the party” in the past. For an elaboration of this point, see Dershowitz, “Preventive Confinement,” loc. cit., pp. 1288–93.
77. Dalton, op. cit., p. 331.
78. “Howard recounts many examples of prison doctors and, of course, prison personnel and their relatives who had died of prison fever. Its consequences were so widely known and feared that they would deter even the most faithful wife, the fondest father from prison visits, according to Howard, who added that in the beginning he always changed his clothes and bathed after every prison inspection. In Taunton, in 1730, according to Howard, a handful of prisoners infected the judges, the prosecutor, the sheriff and several hundred townspeople; all died. And in 1750 the Lord Mayor of London caught the disease and succumbed to it.” Torsten Eriksson, The Reformers: An Historical Survey of Pioneer Experiments in the Treatment of Criminals (New York: Elsevier, 1976), pp. 34–35.
79. Conductor Generalis, or the Office, Duty and Authority of Justices of the Peace (revised and adapted to the United States of America, 1794), p. 346. Hereinafter cited as Conductor Generalis.
80. Ibid., p. 336. In describing the powers of the JPs in Kentucky, an 1804 treatise suggests that preventive confinement could not be employed unless the dangerous person had committed some act, such as “threatened to do . . . injury, or lain in wait” or “contend . . . with hot words, or shall go about with unusual weapons. . . .”
81. By the middle of the nineteenth century several eastern cities had well-paid, well-developed police departments charged with taking direct preventive measures. When announcing changes in the organization of the municipal police force in 1837, Boston Mayor Samuel Eliot said that the new men “would not be expected to pay for themselves through fees and other concessions but would be given regular wages, at the rate of two dollars a day. Unlike the watch, they would work in the daytime, full time. And most important, although less clear, they would be a ‘preventive force.’ ” Roger Lane, Policing the City: Boston 1822–1885 (Cambridge: Harvard University Press, 1967), p. 35.
At the same time in the settled but still rural areas of the Midwest, the justice of the peace was the principal crime prevention officer, but by this time he usually took action only after a complaint, and his authority was limited by long-established court systems. See Merle Curti, The Making of an American Community: A Case Study of Democracy in a Frontier County (Stanford: Stanford University Press, 1959), pp. 305–06. On the edge of the frontier local sheriffs had relatively complete autonomy to take any action, whether it be preventive confinement or preventive execution. A historian of the western frontier wrote:
If a man does wrong, you chastise him. Chastisement can take any form that you think is necessary to hold him in line. One of the acceptable forms is murder. . . .
Of course, one reason that this simplistic attitude toward settlement of problems prevailed on the frontier was a physical one of lack of jails. Where do you put a man when you possibly have no place to put yourself? To be neat and economical, you must put him away. This may mean tying him to a tree and leaving him to starve or be stung to death; if he has been real mean, you might like to wrap him in rawhide and then let the sun shrink the rawhide slowly around him until he is gradually strangled. . . .
What do you do with a man whose crime may not really warrant execution? Either you execute him anyway, stifling your doubts, or you let him go.
Joe B. Frantz, “The Frontier Tradition: An Invitation to Violence,” in Violence in America: Historical and Comparative Perspectives, ed. Hugh Graham and Ted Gurr (New York: Bantam, 1969), p. 130.
82. Like first offenders in noncapital crimes, the mentally ill were divided into two general categories, those who were strangers and those who belonged. The strangers were excluded, while those who belonged were cared for within their communities. To the colonial townsman, “insanity was really no different from any other disability; its victim, unable to support himself, took his place as one more among the needy.” David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (New York: Walter de Gruyter, 2002), p. 4. Thus, although “some assemblies passed laws for a special group like the insane,” most of the colonies grouped the insane among other “diverse vagrant and indigent persons.” Ibid., pp. 4, 23. The cause of their dependency—whether it be mental illness, physical disease, or poverty—made little difference; dependency, whatever its cause, made one either an undesirable stranger, to be excluded if possible, or an expensive burden to be borne.
A number of colonies enacted early laws providing that “when and so often as it shall happen any person to be naturally wanting of understanding, so as to be uncapable to provide for him or herself,” and in the absence of relatives and property, the town “was to provide for his relief.” Ibid., p. 4. The “relief” sometimes took the form of paying for the erection of an improvised asylum, as illustrated by what may be the first recorded case dealing with the mentally ill in Pennsylvania. That case, decided in 1676, provided: “Jan Vorelissen, of Amesland, Complayning to ye Court that his son Erik is bereft of his naturall Senses and is turned quyt madd and yt, he being a poore man is not able to maintaine him; Ordered: yt three or four persons bee hired to build a little block-house at Amesland for to put in the said madman.” Albert Deutsch, The Mentally Ill in America: A History of Their Care and Treatment from Colonial Times (New York: Columbia University Press, 1962), p. 42. In other instances, the relief was merely an order that the town marshal be paid a weekly sum by the church workers “for to Subsist” the dangerous “Madman in Prison” until “he shall Recover his senses.” Ibid., p. 42.
Despite some charitable instincts reflected in the early records, there can be little doubt that the primary purpose behind confinement of the mentally ill in the colonies was neither treatment nor the prospect of cure; it was to preserve peace.
The preventive nature of confining the dangerous mentally ill, and its relationship to other preventive measures, are strongly suggested by the New York statute of February 9, 1788, probably the earliest systematic legislative effort to regulate the community’s response to mental illness, poverty, and minor criminal behavior. Laws of New York 1778–1792, chapter 31 § 6 (2 Greenleaf), pp. 52–54. The statute began by describing a class not of acts but of persons who “shall be deemed and adjudged disorderly persons.” Its preventive focus is illustrated by the group first mentioned: “all persons who threatened to run away and leave their wives and children to the town or city.” The second category included “all persons who shall unlawfully return to the city or town from whence they shall respectively have been legally removed,” an implementation of the settlement, banishment, and warning-out laws, which were also preventive in nature. The remaining categories included those people typically the subject of vagrancy and disorderly person (or conduct) statutes: the “idle”; those who “go about from door to door”; “all jugglers” and persons “pretending to tell fortunes”; prostitutes; and finally, “all persons wandering abroad . . . and not giving a good account of themselves.” The next section of the statute specified the places to which such persons might be confined (the “gaol,” “bridewell,” or “house of correction”), the duration of their confinement (“not exceeding six months”), and the punishments that could be administered to recalcitrant prisoners in order to “correct” their misbehavior (“whipping”).
The sixth section of the act, which dealt with the “furiously mad,” stated:
And whereas there are sometimes persons, who by lunacy or otherwise, are furiously mad, or are so far disordered in their senses that they may be dangerous to be permitted to go abroad; Therefore, be it further acted . . . That it shall and may be lawful for any two or more justices of the peace, where such lunatic or mad person shall be found, by warrant under their hands and seals, directed to the constables and overseers of the poor of the city or town, or some of them, to cause such person to be apprehended and kept safely locked up in some secure place within such city, . . . and, if such justices shall find it necessary, to be there chained, . . . and if the last legal place of settlement of such person shall not be in such city or county, then such person shall be sent to the place of his or her last settlement, in the manner directed in and by the laws relating to the poor, and shall be locked up or chained, . . . this act . . . shall not . . . restrain or abridge the power of authority of the chancellor . . . touching or concerning such lunatics; or to refrain or prevent any friend or relation of such lunatic, from taking them under their own care and protection.
Laws of New York 1778–1792, chapter 31 § 6 (2 Greenleaf), pp. 52–54.
That section also briefly encapsulated the history of the treatment of the dangerously mentally ill from colonial times to the turn of the nineteenth century. The focus was on the “furiously mad” who “may be dangerous to be permitted to go abroad.” These concepts were regarded as self-defining, not requiring further legislative specification. The justices of the peace, who had a wide preventive jurisdiction over disturbers of the peace, were empowered to “lock up” the dangerously insane in “some secure place,” though no specific buildings were allocated for this purpose. They were also empowered to order the inmate to be “chained.” If he was a stranger, he was to be “sent to the place of his or her last settlement,” just as if he were subject to the poor laws. Finally, the alternative methods of treating the mentally ill—having the chancellor appoint a guardian or having the family care for its unfortunate member—were specifically reaffirmed by the act. Ibid.
In its origins, therefore, the locking up of the mentally ill was a paradigmatic case of preventive confinement. Its function was to prevent the occurrence of anticipated conduct of a dangerous or disturbing nature. Nothing positive was expected of the confinement; it was simply regarded as a necessary and convenient way of removing— of isolating—persons whose presence in the community was deemed intolerable or dangerous. It was a kind of inward banishment; its intent was simply to build a wall, a total separation, between those who were “normal” and those who were disturbingly disturbed.
Similar walls were erected to exclude other disturbers of the peace, the poor, the minor criminal, the vagrant, the vagabond, and the contagiously ill. In each of these cases, whatever meager efforts were made to treat the underlying causes of the disability were incidental to the primary aim of prevention through isolation. The fact of the disability, not the special circumstances that caused it, led the community to isolate the unfortunate person. Likewise, the function of his custodian was simply to provide custody—nothing more and nothing less.
What is often forgotten in current discussions of confinement of the mentally ill is that its historical origins, both in Britain and in this country, had little to do with treatment or cure. Confinement of the insane preceded the development of modern psychiatry. The mental asylum came before the mental doctor. Indeed, the pre-Jacksonian statutes authorizing the incarceration of the insane generally make no mention of doctors, either as expert witnesses or as custodians of the asylums, and contemporaneous records establish that doctors were not, in fact, relied upon for either purpose. Nor were they regularly used in insanity defense cases. The mentally ill, like the poor, the vagabond, and the minor criminal, were not confined because of the illness they had but rather because of what they did and what it was expected (“predicted” is the word of a later generation) they would do. It did not require a doctor or any other kind of expert—or so it was thought—to tell the community which people needed to be confined.
Laws regulating the confinement of the insane, like other preventive laws, were relatively unstructured and informal until the middle of the nineteenth century. The forms of the law that were regarded as important in the formal system of criminal justice— trial by jury, rigorous rules of evidence, specific charges, carefully defined criteria—were replaced by virtually untrammeled discretion lodged in the justices of the peace. Operative phrases such as “if they think convenient” and “if such justices shall find it necessary” were employed in the statutes. Still, the threat to liberty created by the existence of such unregulated discretion was not as great as it might seem since the jurisdiction of the justice of the peace in most cases was limited by the amount of the fine and the duration of the confinement that could be imposed without formal trial.
With regard to the mentally ill, however, there were no express statutory limits placed on the duration of their confinements.
83. The confinement of defendants acquitted by reason of insanity is also a way of holding past criminals who cannot be convicted. (In the modern context, it is clear that sexual psychopathy and defective delinquency statutes are often used against “known” criminals who cannot be convicted because of evidenciary inadequacies or the like.)
84. But this balloon phenomenon does not operate in isolation from other social dynamics. For example, it is well recognized that available spaces in custodial institutions will generally be filled even if the actual need for confinement has decreased. Thus, after the large asylums and jails were built in nineteenth-century America, they remained filled even after their exaggerated promises had been exposed as hollow. There are of course exceptions to both rules.
85. One example of a judicial effort to address these issues is found in Judge Bazelon’s opinion in Cross v. Harris, 418 F.2d 1095 (D.C. Cir. 1969). See also Park v. Municipal Judge, 427 P.2d 642, 645 (Nev. 1967).
86. Introduction to Saleilles, op. cit., p. xi.
87. To follow through on these metaphors, we have not addressed the questions of whether a pound of prevention (measured in human confinement or other invasions of liberty) is worth an ounce (or a pound, or a ton) of cure (measured in human life). Or whether it pays to use nine stitches to save one.
CHAPTER 2.
PREEMPTIVE MILITARY ACTION:
FROM SURGICAL STRIKE TO ALL-OUT WAR
1. Gareth Evans, “When Is It Right to Fight?” Survival, vol. 46, no. 3 (summer 2004), p. 65; accessible at http://www.cfr.org/pdf/59–1.pdf.
2. For a discussion of this biblical episode, see Alan M. Dershowitz, The Genesis of Justice: Ten Stories of Biblical Injustice That Led to the Ten Commandments and Modern Law (New York: Warner, 2000), pp. 147–64.
3. Even the domestic law of self-defense, which generally disallows the preemptive use of deadly force, does not require an individual to wait until his attacker actually strikes his first blow. It authorizes the use of proportional force to prevent an imminent deadly assault. See the Model Penal Code: “[T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” Model Penal Code § 3.04(1).
4. Other preventive attacks include, at least according to some commentators, the massacre of the clan of Shechem by Jacob’s sons Shimon and Levi. Although this text of Genesis (Chapter 34) describes the killings as revenge for the rape of Jacob’s daughter, some commentators, ever eager to defend the actions of biblical heroes, argue that the clan of Shechem was thought to be planning an attack on the family of Jacob. Another more enlightened example of preventive action from the Bible is the command to build cities of refuge into which the accidental killer might go to prevent an avenger from killing him. See Numbers 35:9–34.
5. The decision to kill the Jews can also be seen as preventive since Haman warned the king that the Jews did not obey his laws and therefore might be seen as dangerous to him.
6. In the citadel of Susa, “the Jews killed and destroyed five hundred men,” including the ten sons of Haman. In all, the Jews killed more than “seventy-five thousand of them but did not lay their hands on the plunder.” For this reason, the Jews celebrate the holiday of Purim “as the time when the Jews got relief from their enemies.” Mordechai was to be remembered throughout history “because he worked for the good of his people and spoke up for the welfare of the Jews.” Esther 3:8, 3:13, 8:8, 8:11, 9:1, 9:2, 9:4, 9:5.
7. They were not praised by God because God is not mentioned in this account. Indeed, this is the only book of the Jewish Bible in which God is never mentioned. But its inclusion in the Bible has been interpreted as bestowing acceptance on the actions of its heroes, Mordechai and Esther. Because of the absence of God in the narrative, the Book of Esther has become the “bible” of some secular Jewish nationalists and advocates of Jewish self-defense.
8. Edward Gibbon, The Decline and Fall of the Roman Empire (New York: Modern Library, 2005), pp. 587–88.
9. Machiavelli well understood the paradox of early intervention: The earlier the intervention, the higher the likelihood of false positives; the later the intervention, the higher the likelihood of false negatives. Niccolo Machiavelli, The Prince, ed. and tr. David Woottan (Indianapolis/Cambridge: Hacket Publishing Co., 1995).
10. Ibid., p. 11.
11. Quoted by Ken Adelman, “Six Degrees of Preemption,” Washington Post, September 29, 2002, p. B2.
12. John Dryden, Absalom and Achitopel (London: J.T. & W. Davis, 1682), quoted in William C. Bradford, “‘The Duty to Defend Them’: A Natural Law Justification for the Bush Doctrine of Preventive War,” Notre Dame Law Review, vol. 79 (2004), p. 1372. I wish to acknowledge Professor Bradford’s article in which I found several quotations that I have used in this book. Although I do not subscribe to his natural law approach, I find his analysis and research useful and insightful.
13. John Locke, Two Treatises of Government (Cambridge: Cambridge University Press, 1988), p. 274, quoted in Bradford, op. cit., p. 1431.
14. Hugo Grotius, De Jure Belli ac Pacis Libri Tres, tr. Francis W. Kelsey, vol. 2, The Classics of International Law, ed. James Brown Scott (Oxford: Oxford University Press, 1925), p. 176, quoted in Bradford, op. cit., p. 1433.
15. Samuel von Pufendorf, De officio hominis et civis juxta legem naturalem libri duo, tr. Frank Gardner (Oxford: Oxford University Press, 1927), p. 32, quoted in Bradford, op. cit., pp. 1433–34.
16. Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002), pp. 155–57.
17. See Thomas Hobbes, Leviathan, ch. XXI.
18. John Curtis Perry, The Flight of the Romanovs (New York: Basic Books, 1999), p. 21.
19. A similar account appears in Sophocles’s Oedipus Rex, in which Oedipus’s father has been told by the oracle that his son will kill him.
20. Quoted by Ruth Wedgwood, “Six Degrees of Preemption,” Washington Post, September 29, 2002, p. B2.
21. See Winston Churchill, The Gathering Storm (Boston: Houghton Mifflin, 1948), pp. 15–16, 244–49. See also William L. Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (New York: Touchstone, 1990), pp. 297–300.
22. Quoted in Paul Johnson, Modern Times: The World from the Twenties to the Eighties (New York: Perennial, 1983), p. 341.
23. See Shirer, op. cit., pp. 299–300:
Though they were alarmed, Britain and France had not lifted a finger to prevent Hitler from violating the peace treaty by rearming Germany and by reoccupying the Rhineland; they had been unable to stop Mussolini in Abyssinia. And now, as the year 1937 began, they were cutting a sorry figure by their futile gestures to prevent Germany and Italy from determining the outcome of the Spanish Civil War. Everyone knew what Italy and Germany were doing in Spain to assure Franco’s victory. Yet the governments of London and Paris continued for years to engage in empty diplomatic negotiations with Berlin and Rome to assure “nonintervention” in Spain. It was a sport which seems to have amused the German dictator and which certainly increased his contempt for the stumbling political leaders of France and Britain—“little worms,” he would shortly call them on a historic occasion when he again humbled the two Western democracies with the greatest of ease.
Neither Great Britain and France, their governments and their peoples, nor the majority of the German people seemed to realize as 1937 began that almost all that Hitler had done in his first four years was a preparation for war.
24. Historian Charles A. Beard believed that Roosevelt conducted foreign affairs (before declaring war against Japan and Germany) “as a maneuver to a foreign country into firing the shot that brought on war.” Quoted in Leonard Baker, Roosevelt and Pearl Harbor (New York: Macmillan, 1970), p. vii.
25. See Robert Stinnett, Day of Deceit: The Truth about FDR and Pearl Harbor (New York: Touchstone, 2000).
26. David Alan Rosenberg, a specialist in the American national security establishment in the twentieth century and a professorial lecturer with Temple University’s history department, made comments about such a preventive attack in an interview with PBS:
The Soviet Union explodes an atomic bomb in August of 1949. It’s disclosed to the world in September. In the spring and summer of 1950, the Joint Chiefs of Staff do some consideration of an additional targeting category. And in August of 1950, the Joint Chiefs lay on the Strategic Air Command the requirement to in fact also to begin targeting Soviet capability to deliver nuclear weapons against the United States and its allies. And this is one of the great drivers of any kind of nuclear competition between the United States and the Soviet Union, at least on the America side. And that is the requirement to be able, under the right circumstances, to launch a disarming first strike against the Soviet Union. A preemptive strike, not a preventive war but a preemptive strike against Soviet nuclear capability.
“Race for the Superbomb,” transcript of interview with David Alan Rosenberg; available at http://www.pbs.org/wgbh/amex/bomb/filmmore/reference/interview/rosenberg02.html.
In The Evolution of Nuclear Strategy, Lawrence Freedman also discusses the debates surrounding a preventive attack:
In 1954, the feasibility of an attack upon Soviet nuclear installations was even reported to have been discussed at the level of the National Security Council. Public advocacy of preventive war was not encouraged amongst serving officers though the sentiment could, now and again, be detected. It was a minority opinion. Though it was generally felt that the Soviet Union would have few qualms about suddenly launching an unprovoked attack if the moment was considered right, it was equally generally thought that it would be quite out of character, given the prevailing morality and constitutional provisions, for the US ever to do such a thing. . . . The other alternative was taken more seriously. This was pre-emptive war. . . . Preventive war advocacy was based on a concern over an historical shift in the military balance. Any moment before that shift had been completed would be favourable for a strike; any moment after completion would be unfavourable. Pre-emptive war was, on the other hand, tied to a specific situation, most likely to arise after the completion of the historical shift, when there were strong grounds for believing that a Soviet strike was imminent. The second difference followed from the first. Preventive war would be based upon straightforward strategic superiority. Pre-emptive war would be launched in all probability against an enemy of equivalent strength if slower in movement.
Lawrence Freedman, The Evolution of Nuclear Strategy (Hampshire, U.K.: Palgrove Macmillan 2003), pp. 119–20.
A preemptive attack on nascent Chinese military nuclear facilities had also been considered:
In 1963, Gen. Maxwell Taylor, then chairman of the Joint Chiefs of Staff, planned Unconventional Warfare Program BRAVO. It called for the United States to prevent the People’s Republic from building a nuclear weapon by launching a secret attack against a weapons plant in north central China. The attack was to be carried out by a nonnuclear bombing mission or a 100-man sabotage team made up of Chinese Nationalists.
The plan was vetoed on the urging of the State Department. China went forward with its nuclear weapons program, exploding its first device . . . at its Lop Nor test site on Oct. 16, 1964.
Jim Wilson, “Greatest Secrets of the Cold War,” Popular Mechanics (April 1, 1998); accessible at http://www.popularmechanics.com/science/defense/1281171.html.
27. Franklin Delano Roosevelt, Fireside Chat (September 11, 1941), quoted in Robert Debs Heinl, Jr., ed., Dictionary of Military and Naval Quotations (Annapolis: United States Naval Institute Press, 1966), p. 247, quoted in Bradford, op. cit., p. 1440.
28. See John Lewis Gaddis, We Now Know: Rethinking Cold War History (Oxford: Oxford University Press, 1997), pp. 98, 103.
29. As a child I was certainly led to believe a nuclear attack was possible. We participated in duck and cover drills. Some people built shelters.
30. See Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis (New York: Norton, 1999), pp. 82–83; and Max Frankel, High Noon in the Cold War: Kennedy, Khrushchev, and the Cuban Missile Crisis (New York: Presidio, 2004), pp. 133–38. Some argue that the United States did, in fact and in law, wage a preemptive attack since a naval blockade is deemed to be an act of aggression. See Max Boot, “The Bush Doctrine Lives,” Weekly Standard, February 16, 2004. The U.S. invasions of the Dominican Republic in 1965 and of Granada in 1983 were sought to be justified as preventive in nature, as was the death of Salvador Allende in 1973. See Charles Mohr, “President Sends Marines to Rescue Citizens of U.S. from Dominican Fighting,” New York Times, April 29, 1965, p. 1; Michael Powell, “How America Picks Its Fights,” Washington Post, March 25, 2003, p. C1; and Neil A. Lewis, “Delight over Coup Is Evident in Transcripts,” New York Times, May 28, 2004, p. A17.
31. Christopher Torchia, “S. Korean: U.S. Weighed Attack on North,” Associated Press, January 18, 2003.
32. See Jacqueline Cabasso and John Burroughs, “Lessons of Hiroshima: A Response to Kristof,” Lawyer’s Committee on Nuclear Policy, August 8, 2003; accessible at http://www.lcnp.org/wcourt/lessonsofHiroshima.htm.
33. “Legality of the Threat or Use of Nuclear Weapons: Advisory Opinion of July 8, 1996,” ICJ Reports 1996, General List No. 95, paragraph 67; accessible at http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm.
34. Ibid., paragraph 97.
35. Ibid., § (2)(D).
36. See International Committee of the Red Cross, “Basic Rules of the Geneva Conventions and Their Additional Protocols,” summary, 1988; accessible at http://www.icrc.org/WEB/ENG/siteeng0.nsf/htmlall/p0365?OpenDocument&style=Custo_Final .4&View=defaultBody2.
37. The seven judges in favor were from Algeria, Germany, Hungary, Madagascar, China, Russia, and Italy. The seven judges opposed were from Sierra Leone, United Kingdom, United States, Japan, France, Guyana, and Sri Lanka. See “The Judges of the I.C.J. (1996–2000),” World Court Digest; accessible at http://www.virtual-institute .de/en/wcd.cfm?judges03.cfm.
38. “Legality of the Threat or Use of Nuclear Weapons,” loc. cit., § (2)(E).
39. “Legality of the Threat or Use of Nuclear Weapons: Advisory Opinion of July 8, 1996, Dissenting Opinion of Vice-President Schwebel”; accessible at http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm.
40. Ibid.
41. Ibid.
42. A “belligerent reprisal” is defined as “an enforcement measure under the law of armed conflict consisting of an act which would otherwise be unlawful but which is justified as a response to the unlawful acts of an enemy. The sole purpose of a reprisal is to induce the enemy to cease its illegal activity and to comply with the law of armed conflict. Reprisals may be taken against enemy armed forces, enemy civilians other than those in occupied territory, and enemy property.” U.S. Navy, The Commander’s Handbook on the Law of Naval Operations (Norfolk: Department of the Navy, 1995), § 6.2.3; accessible at http://www.nwc.navy.mil/ILD/NWP%201-14M%20(3%20of%205).pdf. As the definition itself states, the allowance of using force against enemy civilians as part of a belligerent reprisal would otherwise be illegal and conflicts with the general prohibition against targeting civilians.
CHAPTER 3.
PREEMPTION AND NONPREEMPTION IN THE ARAB-ISRAELI CONFLICT—ITS RELEVANCE TO U.S. POLICY
1. See Chapter 5.
2. See Michael Walzer, Just and Unjust Wars (New York: Basic Books, 2000).
3. I have studied Israel’s approach to preemption since 1970, when I spent several weeks at Hebrew University researching and writing about administrative (or preventive) detention of suspected terrorists. More recently I researched targeted killings of terrorist leaders, during visits in December 2003, January 2004, and June 2005.
4. For some of Israel’s enemies, a military defeat can constitute a political victory. See Abraham Rabinovich, The Yom Kippur War: The Epic Encounter that Transformed the Middle East (New York: Schocken, 2004), p. 507.
5. See Alan Dershowitz, The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved (Hoboken: Wiley, 2005), pp. 91, 115–16, 143–48.
6. William C. Bradford, “The Duty to Defend Them’: A Natural Law Justification for the Bush Doctrine of Preventive War,” Notre Dame Law Review, vol. 79 (2004), p. 1469.
7. “Remarks by the Honorable Dean Acheson,” American Society of International Law Proceedings, vol. 57 (1963), pp. 13, 14, quoted ibid., p. 1470.
8. Dershowitz, op. cit., pp. 102–04.
9. Quoted in Alan Dershowitz, The Case for Israel (Hoboken: Wiley, 2003), p. 187.
10. Israel often uses retaliation as a cover for preemptive actions. After the September 1972 killings of nine Israeli Olympic athletes, Prime Minister Golda Meir approved of the assassinations of leaders of Black September, the group that carried out the massacre at the Olympics. These assassinations were “wholesale vengeance,” but they also served “as a deterrent.” Ian Black and Benny Morris, Israel’s Secret Wars: A History of Israel’s Intelligence Services (New York: Grove, 1991), p. 272. It is likely that many of those who were assassinated would otherwise have lived to plan and execute more attacks on Israelis.
11. Ahron Bregman, Israel’s Wars, 2nd ed. (London and New York: Routledge, 2002), p. 35.
12. Black and Morris, op. cit., p. 128.
13. Ibid.
14. Ibid., p. 56.
15. “The fedayeen raids against Israel and the cycle of counter-raids they precipitated were the main cause of the IDF [Israel Defense Forces] invasion of the Sinai peninsula on 29 October 1956, the eastern flank of the Anglo-French-Israeli attack on Egypt known as the Suez Campaign. The immediate trigger for the Israeli offensive was the fear of Egypt’s military capability, which, it was believed, would shortly be vastly increased as a result of the Egyptian-Czech arms deal of 1955. The IDF commanders feared that the dozens of modern, Soviet-made fighter aircraft, bombers, tanks and guns that began to pour into Egypt would dramatically tip the military scales against Israel within months, and that a preemptive strike was necessary for survival.” Black and Morris, op. cit., p. 126.
16. Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict (New York: Vintage, 2001), pp. 297–98.
17. Bregman, op. cit., p. 75.
18. See pp. 82–83, 85.
19. Quoted in Dershowitz, The Case for Israel, loc. cit., p. 92.
20. Michael B. Oren, Six Days of War: June 1967 and the Making of the Modern Middle East (Oxford: Oxford University Press, 2002), pp. 186–87.
21. Samir A. Mutawi, Jordan in the 1967 War (Cambridge: Cambridge University Press, 1987), p. 124.
22. See Oren, op. cit., pp. 305–06.
23. Warner D. Farr, “The Third Temple’s Holy of Holies: Israel’s Nuclear Weapons,” Counterproliferation Papers, Future Warfare Series No. 2; accessible at http://www.au.af.mil/au/awc/awcgate/cpc-pubs/farr.htm.
24. Michael Karpin, The Bomb in the Basement (New York: Simon & Schuster, 2006), p. 276 (of uncorrected proofs).
25. Oren, op. cit., p. 82. Some have argued, with the benefit of hindsight, that it is possible that absent Israel’s first strike, there would have been no 1967 war. Even if that were true, and it is impossible to be certain that it is, Israel’s actions must be judged on the basis of what it knew and reasonably believed at the time. As prime minister of Israel Menachem Begin spoke about the uncertainty Israel faced and its motives in launching its preemptive strike: “In June 1967, we again had a choice. The Egyptian Army concentrations in the Sinai approaches do not prove that Nasser was really about to attack us. We must be honest with ourselves. We decided to attack him. This was a war of self-defense in the noblest sense of the term. The Government of National Unity then established decided unanimously: we will take the initiative and attack the enemy, drive him back, and thus assure the security of Israel and the future of the nation.” “Excerpts from Begin Speech at National Defense College,” New York Times, August 21, 1982, p. 6.
26. See Oren, op. cit., p. 306: “Casualty rates . . . among civilians was remarkably low [because] much of the fighting took place far from major population centers.”
27. Ibid., pp. 162–64.
28. Michael Walzer, Just and Unjust Wars (New York: Basic Books, 2000), pp. 83–86.
29. Ibid.
30. Ibid., p. 84.
31. See also Eric Hammel, Six Days in June: How Israel Won the 1967 Arab-Israeli War (Pacifica, Calif.: Pacifica Press, 2001), p. 29: “[T]he bluff . . . Nasser commenced on May 13, 1967 ensured that the inevitable war would commence sooner rather than later.”
32. See, for example, Washington v. Hazlett, 113 N.W. (1907), pp. 371, 380–81; and Washington v. Wanrow, 88 Wash. 2d 221, 559 P.2d (1977), p. 548.
33. Steven J. Rosen and Martin Indyk, “The Temptation to Pre-empt in a Fifth Arab-Israeli War,” Orbis (Summer 1976), p. 270.
34. Rabinovich, op. cit., p. 87.
35. Rosen and Indyk, op. cit., p. 272.
36. Ibid., p. 273. Even in the planning stages for a possible war, preemption was essentially taken off the table:
In the wake of the 1967 victory new elements were introduced into Israel’s calculus. The capture of Sinai, the West Bank and the Golan Heights for the first time provided her with strategic depth and with what her leaders regarded as defensible borders. Thus it was believed that pre-emption was no longer a military necessity. Moreover, the political costs of pre-emption had risen considerably, as America sought stability in the region as a precondition for a negotiated settlement. Accordingly, Defense Minister Dayan ordered the IDF to rely primarily on a non-pre-emptive strategy. Instead, the Israeli forces depended on early warning of any Arab intention to attack to allow time for mobilization.
Ibid., p. 270.
37. Rabinovich, op. cit. p. 89.
38. Ibid., p. 454. Some have questioned this assessment. See p. 304, n. 50.
39. There were times during the Yom Kippur War when Moshe Dayan and others feared for the survival of Israel. Abraham Rabinovich wrote: “What [Dayan] sensed now was Israel’s mortality and it shook him. He was gripped, he would later write, by an anxiety he had never before known.” Ibid., p. 218.
40. Ibid., p. 491.
41. To put the losses into comparative perspective, Israel “lost almost three times as many men per capita in nineteen days as did the United States in Vietnam in close to a decade.” Ibid., p. 498.
42. Many of the Israeli casualties of the 1967 war occurred on the Jordanian front, and they might have been avoided or reduced had Israel taken preemptive action against Jordan.
43. “Arab casualties as given by a western analyst were 8,528 dead and 19,450 wounded. Israel estimated Arab casualties to be almost twice those figures—15,000 dead . . . and 35,000 wounded. . . .” Rabinovich, op. cit., p. 497.
44. Oren, op. cit., p. 305
45. Rosen and Indyk, op. cit., p. 272
46. It might also have prevented the subsequent peace treaty between Egypt and Israel— or perhaps facilitated it. No one can know for certain. The contingencies of history, especially military history, always leave much to speculation.
47. Rabinovich, op. cit., p. 55.
48. Ibid., p. 507. At least in the short term. He was assassinated several years later by Islamic fundamentalists.
49. This issue is complicated by the fact that Israel did not even call up all its reserve soldiers in the days leading up to the Yom Kippur attack, as it did in 1967. General Elazar estimated that “if we had mobilized, the war would have lasted three, four, six days.” Ibid., p. 489. Mobilization, especially by Israel, which relies on reserves, can itself be viewed as a preemptive tactic—or at least as a combination of preemption and deterrence.
50. It turned out, ironically, that “[a]t the initial meeting of the policy makers [in Washington at the beginning of the war], most participants presumed that Israel had started the war”—probably because of its preemptive actions in 1967. Ibid., p. 322. This and other factors have led some experts to conclude that Meir was wrong to refuse preemption because of fear of American reaction. “Two influential exponents of this line of reasoning, Edward Luttwak and Walter Laqueur, have denigrated the political costs of pre-emption in arguing: ‘. . . the moral issue of who fired first did not after all make any difference. Rather the reverse. Most governments blandly accused the Israelis of being aggressors. Clearly only the United States mattered, and it remains an open question whether an Israeli air strike against Arab forces whose offensive had entered the operational phase would have made much of a difference to American opinion.’” Rosen and Indyk, op. cit., p. 275.
51. Shimon Peres, From These Men: Seven Founders of the State of Israel (New York: Wynd-ham, 1979), p. 55, quoted in Bradford, op. cit., p. 1457.
52. For an interesting analysis of how an “abundance of information” may have led Israel “to intelligence hubris,” see Efraim Halevy, “In Defense of the Intelligence Services,” Economist, July 29, 2004.
53. Walzer sought to revise the preexisting paradigm in light of his conclusion justifying Israeli preemption in the Six-Day War:
To say that [Israel’s preemption was justified], however, is to suggest a major revision of the legalist paradigm. For it means that aggression can be made out not only in the absence of a military attack or invasion but in the (probable) absence of any immediate intention to launch such an attack or invasion. The general formula must go something like this: states may use military force in the threats of war, whenever the failure to do so would seriously risk their territorial integrity or political independence. Under such circumstances it can fairly be said that they have been forced to fight and that they are the victims of aggression. Since there are no police upon whom they can call, the moment at which states are forced to fight probably comes sooner than it would for individuals in a settled domestic society. But if we imagine an unstable society, like the “wild-west” of American fiction, the analogy can be restated: a state under threat is like an individual hunted by an enemy who has announced his intention of killing or injuring him. Surely such a person may surprise his hunter, if he is able to do so. The formula is permissive, but it implies restrictions that can usefully be unpacked only with reference to particular cases. It is obvious, for example, that measures short of war are preferable to war itself whenever they hold out the hope of similar or nearly similar effectiveness. But what those measures might be, or how long they must be tried, cannot be a matter of a priori stipulation. In the case of the Six Day war, the “asymmetry in the structure of forces” set a time limit on diplomatic efforts that would have no relevance to conflicts involving other sorts of states and armies. A general rule containing words like “seriously” opens a broad path for human judgment—which it is, no doubt, the purpose of the legalist paradigm to narrow or block altogether. But it is a fact of our moral life that political leaders make such judgments, and that once they are made the rest of us do not uniformly condemn them. Rather, we weigh and evaluate their actions on the basis of criteria like those I have tried to describe. When we do that we are acknowledging that there are threats with which no nation can be expected to live. And that acknowledgment is an important part of our understanding of aggression.
Walzer, op. cit., p. 85.
54. UN Secretary-General Kurt Waldheim called Israel’s rescue of the hostages a “serious violation of Uganda’s national sovereignty.” Kathleen Teltsch, “U.S. Wants U.N. to Debate Hijacking as Well as Israeli Raid,” New York Times, July 8, 1976, p. 4.
55. A successful rescue was expected to result in twenty Israeli fatalities. See Zeev Maoz, “The Decision to Raid Entebbe: Decision Analysis Applied to Crisis Behavior,” Journal of Conflict Resolution, vol. 25, no. 4 (December 1981), p. 698.
56. The Israeli soldier who was killed was the older brother of Israel’s future prime minister Benjamin Netanyahu. Yehonatan Netanyahu, the leader of the raiding party, was shot by a sniper as the mission was being completed.
57. It is quite informative to read the actual text of the resolution, especially recalling that the president of Uganda, Idi Amin, was actively complicit with the hijackers and personally ordered the murder of an elderly Jewish woman who had been taken to a hospital following the hijacking:
The Assembly of Heads of State and Government of the Organization of African Unity, meeting in its Thirteenth Ordinary Session at Port Louis, Mauritius, from 2nd to 6th July 1976,
Having heard the statement of the Minister of Foreign Affairs of the Republic of Uganda;
Deeply alarmed about the Israeli aggression on Uganda which constitutes a threat to international peace and security;
Considering that an aggression against one OAU Member State, is aggression against all Member States requiring collective measure to repel it;
Believing that such aggression results from the policy of cooperation between Israel and South Africa which aims at threatening the independence and territorial integrity of all African and Arab States and to undermine the aim of Africa to liberate the territories which are still under colonialism and racist domination in the Southern part of Africa.
1. Strongly condemns the Israeli aggression against the sovereignty and territorial integrity of Uganda; the deliberate killing and injuring of people and wanton destruction of property; and for having thwarted the humanitarian efforts by the President of Uganda to have the hostages released;
2. Calls for an immediate meeting of the United Nations Security Council with a view to taking all appropriate measures against Israel, including measures under Chapter 7 of the United Nations Charter;
3. Expresses its full support to Uganda and its appreciation to its president for the humanitarian role he has played;
4. Decides to send a message of solidarity, support and condolence to the President and people of Uganda; and
5. Calls upon all African States to intensify their efforts in order to isolate Israel and compel her to change her aggressive policy;
6. Calls upon Member States of the OAU to assist Uganda to retrieve much of what she has lost;
7. Mandates the Current Chairman of the Council of Ministers and Guinea and Egypt to assist Uganda in putting the case before the Security Council.
AHG/Res.83 (XII), Resolution on Israel Aggression Against Uganda; accessible at http://www.iss.co.za.AF/RegOrg/unity_to_union/pdfs/oau/hog/mHoGAssembly1976.pdf
58. Maoz, op. cit.
59. This act of separating the hostages along primarily religious lines reminded many of the notorious “selections” that led many to their deaths at Auschwitz. It generated emotional reaction in Israel and may have contributed to the decision to take military action. Ibid., p. 688
60. Ibid., p. 689.
61. Maoz wrote:
The evidence suggests that complex outcomes were decomposed into distinct elements, that conditions of dependence and interdependence among elements were determined and processed accordingly, and that the combination of those elements into an overall estimate intuitively approximated optimal methods such as Bayesian analysis. . . . Base rates were not ignored; on the contrary, they were clearly incorporated into the estimation process. This is best illustrated by the use of background evidence regarding previous operations of Hadad’s organization in combination with current evidence regarding the behavior of the hijackers toward the hostages. This combination allowed the decision makers to assess the credibility of the hijackers’ threats. Moreover, there is no evidence to suggest that unequal weights were assigned to data supporting favorable outcomes relative to data supporting unfavorable outcomes. The decision makers were equally receptive to “bad news”—for instance Amin’s refusal to cooperate with Israel— as they were with respect to “good news.”
Given the enormous time pressure the decision makers experienced, and given the overwhelming quantity of information they were required to process, the quality of the revision process was remarkably high.
Ibid., pp. 695–96.
62. Ibid., p. 695.
63. Ibid., p. 704.
64. Michael Reisman, “Assessing Claims to Revise the Laws of War,” American Journal of International Law, vol. 97, no. 1 (2003), pp. 82–90.
65. Quoted in Shlomo Nakdimon, First Strike: The Exclusive Story of How Israel Foiled Iraq’s Attempt to Get the Bomb (New York: Summit, 1987), p. 156.
66. Shlomo Nakdimon, First Strike (New York: Summit, 1987), p. 156.
67. See, generally, Michael Karpin, The Bomb in the Basement (New York: Simon & Schuster, 2006).
68. See statement of Arthur Goldberg, pp. 98–99.
69. See Richard Posner, Catastrophe (Oxford: Oxford University Press, 2004) for an interesting analysis of decision making in the face of unlikely but potentially catastrophic threats.
70. Nakdimon, op. cit., pp. 239–40.
71. Ibid., p. 232.
72. Ibid., p. 317.
73. Ibid., pp. 274–75 and 276. Thus, even if mutually assured destruction is lawful (but see the International Court of Justice opinion, pp. 71–72), moral leaders might be hesitant to retaliate against civilian population centers.
74. Michael Walzer, Arguing about War (New Haven: Yale University Press, 2004), p. 147.
75. “Six Degrees of Preemption,” Washington Post, September 29, 2002, p. B2.
76. Ibid.
77. One possible reason for this attitude was the fact that the United States was supporting Iraq at the time in its war against Iran.
78. Margaret Thatcher, “Don’t Go Wobbly,” Wall Street Journal, June 17, 2002.
79. After the war began, the “Iron Lady” changed her mind again, calling the war a mistake and criticizing Tony Blair for involving Great Britain in a “mission without end for years.” Chris Mclaughlin, “Maggie’s Mauling for Blair,” Sunday Mirror, September 21, 2003; accessible at http://www.sundaymirror.co. uk/news/news/page.cfm?objectid=13431916&method=full&siteid=106694.
80. Nakdimon, op. cit., p. 269 (emphasis added).
81. Ibid. pp. 257–58.
82. Ibid., pp. 256–57.
83. This argument was made by Walter Sullivan, among others. Walter Sullivan, “U.S. Expert Disputes Israelis on Reactor,” New York Times, June 25, 1981, p. A9. Another New York Times article soon after the bombing reported that it would have been much more hazardous to bomb a reactor that had already gone critical. Walter Sullivan, “Hazard from Debris Considered Limited,” New York Times, June 9, 1981, p. A9. See also Richard Wilson, “Israel Stopped No Iraqi A-Bomb Production,” New York Times, June 14, 1984, p. A22.
84. Nakdimon, op. cit., p. 262.
85. Israel did bomb the outskirts of Beirut in an effort to destroy terrorist enclaves, and early in its history it took retaliatory action against enemy villages. Lee Hockstader, “Israeli Bombs Hit Targets near Beirut,” Washington Post, June 25, 1999, p. A21; and Benny Morris, Righteous Victims: A History of the Zionist-Arab Conflict (New York: Vintage, 2001), pp. 276–77. But it did not bomb Cairo, Amman, Baghdad, or Damascus in retaliation for bombs dropped on its cities.
86. It is of course uncertain what Israel would actually do in the event of a nuclear attack on one of its cities. This uncertainty itself provides some deterrent impact.
87. See Machiavelli, pp. 63–64.
88. Bregman, op. cit., pp. 159–60.
89. Ibid., p. 175.
90. Ibid., pp. 176–78.
CHAPTER 4.
PREVENTIVE MEASURES AGAINST TERRORISM
1. It is of course possible that a leader of a nation may be willing to die and to take many of his citizens with him. See statement of Hashemi Rafsanjani, p. 175.
2. Defence of the Realm Consolidation Act, November 27, 1914; accessible at http://www.nationalarchives.gov.uk/pathways/firstworldwar/transcripts/first_world_war/defence_ofthe-realm.htm.
3. See generally Stephen J. Schulhofer, “Checks and Balances in Wartime: American, British and Israeli Experiences,” Michigan Law Review, vol. 102 (2004), pp. 1906–58.
4. A(FC) v Home Secretary [2004] UKHL 56; accessible at http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/16_12_04_detainees.pdf.
5. Mark Oliver and Sarah Left, “Law Lords Back Terror Detainees,” Guardian, December 16, 2004; accessible at http://www.guardian.co.uk/terrorism/story/0,12780,1374967,00.html.
6. “UK Court Rejects Terror Detentions,” CNN, December 16, 2004; accessible at http://edition.cnn.com/2004/WORLD/europe/12/16/britain.detention/.
7. John Deane, “Blair Defends Terror Suspects Crackdown,” Press Association, September 16, 2005.
8. Ibid.
9. Ibid.
10. “Blair unveils new anti-terrorism plans,” Xinhua News Agency, August 5, 2005. After concern was expressed that terror suspects would face “torture and inhuman treatment” by the countries to which they are deported, the British Home Office reportedly signed a treaty with Jordan, declaring that those deported by Britain will not be sentenced to death or mistreated. Ibid.
11. Ibid.
12. Alan Cowell, “Britain Considers Lengthening Time for Holding Terror Suspects,” New York Times, August 10, 2005, p. 8.
13. Ibid.
14. Ibid.
15. Human Rights Watch, “UK: Detention Plan Amounts to Punishment Without Trial. Draft Antiterrorism Law Raises Serious Human Rights Concerns,” London, September 16, 2005, accessible at http://www.hrw.org/english/docs/2005/09/16/uk11751.htm.
16. Raymond Bonner, “Australia to Present Strict Antiterrorism Statute,” New York Times, November 3, 2005, p. 6.
17. Shortly after Lincoln issued his “incarceration proclamation,” an obscure Marylander named John Merryman, whose loyalties were apparently with the South, was roused from his bed at two in the morning, taken to Fort McHenry, and imprisoned there under military guard. A writ of habeas corpus was sought from the chief justice of the United States, Roger B. Taney, a Lincoln antagonist and author of the infamous Dred Scott decision. Taney’s opinion gave Lincoln a failing grade in constitutional law. “I had supposed it to be one of those points in constitutional law upon which there was no difference of opinion,” he commented sarcastically, “that the privilege of the writ could not be suspended, except by act of Congress.” But though the chief justice ordered Merryman released, he remained confined. The general in charge of the fort simply denied the marshal permission to serve the necessary papers, and Lincoln took no official notice of the opinion (which was personally transmitted to him by order of the Court).
18. Congress enacted a statute giving President Lincoln even more authority to suspend constitutional safeguards than he had requested. And so when Lambdin Milligan was arrested in Indiana on October 5, 1864, there was little doubt that the privilege of the writ of habeas corpus had been properly suspended. Not content to detain him, the military authorities decided to try Milligan, a civilian, before a military commission, which promptly sentenced him to hang. By the time the case worked its way up to the Supreme Court, the war was over, and in the words of Justice David Davis, “now that the public safety is assured, this question . . . can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.”
19. Ex parte Milligan, 71 U.S. (4 Wall.) (1866), p. 2.
20. Moyer v. Peabody, 212 U.S. 78, 84 (1909). Although Justice Holmes intimated that the Court might not sustain a detention of undue duration, his uncritical legitimation of the governor’s exercise of extraordinary power was a clear invitation to abuse. And abuse was not long in coming. Numerous governors invoked the magic phrase “martial law” as a kind of “household remedy” to accomplish such diverse and illegitimate ends as closing a racetrack, manipulating a primary election, keeping a neighborhood segregated, and—most often—settling labor strikes to the advantage of management. It was inevitable that the Supreme Court could not long tolerate such bogus declarations of martial law. The case that finally wore the Court’s patience arose in the East Texas oil fields during the early years of the Depression. The governor declared martial law and ordered restrictions on the production of oil in an effort to raise its price. There were no riots or violence, nor were any troops employed. Martial law was invoked simply to accomplish economic ends. The Supreme Court enjoined the governor’s action, reasoning that unless it did so, “the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land.” Alan M. Dershowitz, Shouting Fire (New York: Little, Brown, 2002), p. 422.
21. The civilian governor handed the reins of government over to the military only after receiving assurances that civilian control would be restored as soon as the immediate emergency was over—within days or, at most, weeks. Relative calm returned quickly to the islands as the threat of renewed attack dissipated. Places of amusement and saloons were permitted to open in February 1942, and life returned to near normality after the U.S. victory at Midway removed any realistic threat of invasion. But the military still insisted that the civil courts remain closed and the writ of habeas corpus remain suspended. Over the next years a considerable battle ensued between the ousted civilian officials and the governing generals. It culminated in a contempt citation issued by a federal judge against the commanding general followed by an order issued by the general threatening to court-martial the judge if he persisted in issuing writs of habeas corpus.
22. Duncan v. Kahanamoku, 327 U.S. 304, 316–17 (1946).
23. Virtually all of them born here, since residents who emigrated from Japan were ineligible for American citizenship under the racial prohibitions then on the statute books.
24. This is the claim of the Japanese American Citizens League, and I know of no allegations to the contrary.
25. Quoted in Bill Hosokawa, Nisei: The Quiet Americans (New York: Norton, 1969), pp. 287–88.
26. Ibid., p. 260.
27. Virtually no exceptions were made; those detained included veterans of World War I, future soldiers who were to die fighting in the famous 442nd Regimental Combat Team (the Nisei Brigade), and lifelong members of the American Legion (whose monthly publication advocated “putting American Japanese on some Pacific island”).
28. Professor Mark Tushnet has defended Korematsu on experiential grounds, writing “that Korematsu was part of a process of social learning that both diminishes contemporary threats to civil liberties in our present situation and reproduces a framework of constitutionalism that ensures that such threats will be a permanent part of the constitutional landscape. . . . I have tried to explain how decision-makers faced with what they understood to be a threat to the nation might engage in actions that in retrospective seem quite unjustified.” Mark Tushnet, “Defending Korematsu?: Reflections on Civil Liberties in Wartime,” Wisconsin Law Review (2003), p. 274.
29. Quoted in Dershowitz, op. cit., pp. 420–23, 440–42.
30. I have argued elsewhere that Justice Robert Jackson was wrong when he made the following observations:
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a juridical opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.
Korematsu v. United States, 323 U.S. 214 (1944), pp. 245–46 (note omitted). This is what I have argued in response:
Experience has not necessarily proved Jackson’s fear . . . to be well founded. The very fact that the Supreme Court expressly validated the detentions contributed to its condemnation by the verdict of history. Today the Supreme Court’s decision in Korematsu stands alongside decisions such as Dred Scott, Plessy v. Ferguson, and Buck v. Bell in the High Court’s Hall of Infamy. Though never formally overruled, and even occasionally cited, Korematsu serves as a negative precedent-mistaken ruling not ever to be repeated in future cases. Had the Supreme Court merely allowed the executive decision to stand without judicial review, a far more dangerous precedent might have been established: namely, that executive decisions during times of emergency will escape review by the Supreme Court. That far broader and more dangerous precedent would then lie about “like a loaded weapon” ready to be used by a dictator without fear of judicial review. That comes close to the current situation, in which the administration denies it is acting unlawfully, while aggressively resisting any judicial review of its actions with regard to terrorism.
Alan Dershowitz, “Tortured Reasoning,” in Torture: A Collection, ed. Sanford Levin-son (Oxford: Oxford University Press, 2004), pp. 268–69.
31. In Rasul v. Bush, 124 S.Ct. 2686 (2004), the Supreme Court ruled that foreign-born detainees at Guantánamo Bay can challenge their captivity in the U.S. judicial system.
32. According to the Israel Defense Forces, there were 135 successful terrorist attacks in Israel between October 2000 and November 2004, while 431 potential terrorist attacks were thwarted during that period. See “Suicide Bomber Attacks Carried-Out vs. Attacks Prevented” link at http://www1.idf.il/dover/site/mainpage.asp?sl=EN&id=22&docid=16703.EN&unit=10.
33. Following the Oslo Accords, Israel vacated the West Bank population centers to a large degree but reoccupied most of them following the renewal of terrorism in 2001.
34. Emergency Powers (Detention) Law, 5739–1979.
35. There exists, under U.S. law, a statutory framework for dealing with some such issues. See 18 U.S.C. 4001. But it does not cover all such issues. See Philip B. Heymann and Juliette N. Kayyem, Protecting Liberty in an Age of Terror (Cambridge, Mass.: MIT Press, 2005), pp. 41–52.
36. The references were to a case then under consideration.
37. See Dershowitz, Shouting Fire, loc. cit., pp. 431–56.
38. See Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004).
39. Laura King, “Israel to Delay Pullout from Gaza,” Los Angeles Times, May 10, 2005, p. A4.
40. Williamson v. United States, 184 F.2d 280, 282 (2d Cir. 1950). See also Albin Eser, “The Principle of ‘Harm’ in the Concept of Crime: A Comparative Analysis of the Criminally Protected Legal Interests,” Duquesne University Law Review (1965–1966), 345–417.
41. 18 U.S.C. § 4001 (a). In 1970 Congress also repealed the McCarran Act, which had been on the books for twenty years. The statute authorized during periods of internal security emergency the preventive confinement of persons who there was “reasonable ground to believe . . . probably will commit or conspire with other to commit espionage or sabotage. . . .” The statute cataloged “evidentiary matters” that should be considered in making this decision. Not surprisingly, the matters consisted primarily of suspected past actions, such as (1) whether “such person has knowledge of or has received or given instruction or assignment in the espionage, counterespionage, or sabotage service,” (2) “any past . . . acts of espionage or sabotage,” or (3) “activity in the espionage or sabotage operations of, or the holding at any time after January 1, 1949, of membership in, the Communist Party of the United States. . . .” Acts within the first category would of course constitute serious crimes if they could be proved. The McCarran Act thus employed “preventive” detention in this category of cases to dispense with the rigorous requirements of proving past criminality. Acts in the second category would also be crimes, unless they had already been punished or the statute of limitation had run. Preventive detention was thus being employed to circumvent the double jeopardy and ex post facto prohibitions of the Constitution. Acts in the third category, if not covered by the first two, would consist of membership in an organization that a statute of doubtful constitutionality had made criminal. The act thus used preventive detention to avoid a possible judicial decision that membership could not be criminalized.
The McCarran Act differed in fundamental respects from the preventive action taken against the Japanese-Americans. The former attempted primarily to confine individuals whose past suspected acts of espionage, sabotage, or membership in hostile organizations made them dangerous; the latter to confine an entire group without regard to individual past acts. Inclusion in the former category required a voluntary act; inclusion in the latter required merely an involuntary and unchangeable “birth status.”
42. Professor Martha Minow has written: “The actual number of detainees held by the United States since September 11 is difficult to verify because the government has treated this matter as too sensitive for disclosure. One estimate made indicates 2200 detainees within the United States, 800 at Guantanamo Bay, and 50,000 in Iraq and Afghanistan.” Martha Minow, “What Is the Greatest Evil? Book Review of The Lesser Evil, by Michael Ignatieff,” Harvard Law Review, vol. 118, no. 7 (May 2005), pp. 2134–35, n. 2.
43. These “witnesses” would of course have a Fifth Amendment privilege against self-incrimination with regard to their own crimes that could be trumped only by a grant of derivative use immunity. See Kastigar v. United States, 406 U.S. 441 (1972).
44. Alan Dershowitz, “‘Stretch Points’ of Liberty,” Nation, March 15, 1971, pp. 329–34.
45. Landau Commission, “The Report of the Commission of Inquiry Concerning Methods of Investigation by the General Security Service of Hostile Terrorist Activity,” October 1987.
46. Or a waiver by the person being questioned.
47. See Chavez v. Martinez, 538 U.S. 760 (2003).
48. This mechanism brings up the extraordinarily controversial, and emotional, issue of what is euphemistically called highly coercive interrogation techniques and what has been colloquially labeled “torture lite.” The scandal at Abu Ghraib prison in Iraq focused the attention of the world on this problem.
In December 2004 a report entitled “Long-term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism” was issued by Harvard’s Kennedy School of Government. Among the subjects the report covered was the preventive detention of suspected terrorists who could not be brought to trial without endangering national security. The distinguished group responsible for the report recommended an approach to preventive detention not very different from that employed by Great Britain and Israel. “On an ex parte showing to a court that, despite the Classified Information Procedure Act, a trial would currently be impossible without a severe loss of National Security secrets, and evidence that cannot be revealed in public demonstrating that release of the detainee would significantly endanger the lives of others,” the judge can order the preventive detention of the suspect “for a period of up to two years.” (The detention can be authorized for only ninety days and can be renewed for up to two years.)
Beyond some general language regarding burdens of proof, the report provided few specifics on the nature of the evidence required—would hearsay suffice?—or about the number of false positives the process should be willing to tolerate in order to prevent possible acts of terrorism of what magnitude. (Double false positives are likely under any such procedure; the suspect may be innocent of the past crimes of which he is suspected and may not commit the future crimes that he is predicted to commit.) Even more disappointing was the report’s refusal to face up to the issue of precisely what sorts of extraordinary interrogation measures, short of outright torture, it was willing to accept. For example, it has been widely reported that “water boarding” has been used by American intelligence officials against some high-value sources. This technique places the subject on a board and lowers his head into water until he experiences the sensation of nearly drowning. It is repeated until the subject indicates a willingness to cooperate. Is this an acceptable tactic in extraordinary cases? Does it constitute torture? Is it “better” or “worse” than the nonlethal infliction of excruciating pain? Is it permissible under our law and treaty obligations? Instead of answering these currently pressing and very real questions, the report left them to the political process, which is supposed to determine which specific measures are acceptable under what circumstances. Heymann and Kayyem, op. cit., pp. 23–32. These difficult and controversial issues would justify an entire book of their own.
49. In December 2004 Britain’s high court ruled in an 8–1 decision that indefinite detention of terror suspects was a human rights violation and therefore impermissible. A v. Secretary of State for the Home Department (2004) UKHL 56; accessible at http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-l.htm.
50. Ian Black and Benny Harris, Israel’s Secret Wars: A History of Israel’s Intelligence Services (New York: Grove, 1991), pp. 194–96.
51. For a more critical assessment of this operation, see Michael Karpin, The Bomb in the Basement (New York: Simon & Schuster, 2006).
52. Gordon Thomas, Gideon’s Spies (New York: St. Martin’s, 1999), pp. 123–24.
53. Ibid., p. 123.
54. For an account of this decision, see Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002), pp. 41–50.
55. Black and Morris, op. cit., p. 272.
56. They are combatants because they are part of a paramilitary insurgency, but they are not POWs because they themselves do not follow the laws of war in their targeting of civilians. Professor Rotunda contends that not all detainees should be considered prisoners of war. The basic rights afforded to POWs under the Geneva Convention are applicable only to “lawful combatants.” As such, he has written “unlawful combatants,” such as terrorists who do not abide by the international rules of engagement, should not be considered POWs, unless “they file a declaration with the Swiss government accepting the obligations of the [Geneva Convention].” Ronald D. Rotunda, “No POWs,” National Review Online, January 29, 2002; accessible at http://www.nationalreview.com/comment/comment-rotunda012902.shtml.
57. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), p. 29.
58. According to B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, between September 29, 2000, and September 30, 2005, 300 Palestinians were killed during the course of an assassination. Of that total, 191 were assassination targets. See http://www.btselem.org/English/Statistics/Casualties.asp. As I wrote in The Case for Peace: “In June 2005, I interviewed the commander of the Israeli Air Force, General Elyezer Shkedy, about targeted killings and civilian casualties. He told me that until the beginning of 2004, the ratio of terrorists to civilians killed by targeted bombings was approximately 1:1. But as a result of sophisticated technological improvements, that ratio changed dramatically between early 2004 and 2005 to twelve terrorists killed for every civilian killed.” Alan Dershowitz, The Case for Peace (Hoboken: Wiley, 2005), p. 78.
59. A common variation on this paradigm involves an armed terrorist about to enter a Jewish settlement in Gaza. This variation no longer exists now that Israel has abandoned its settlements in Gaza.
60. See Alan Dershowitz, “Should This Man Be Assassinated? Israel Is Perfectly within Its Rights to Execute Its Terrorist Enemies,” Toronto Globe & Mail, September 16, 2003.
61. John Howard, Australia’s prime minister, “repeatedly has said his government would attack militants overseas if they were planning to strike Australian interests and the host country refused to act. . . . Mr. Howard instituted the policy after a bomb attack in Bali two years ago killed dozens of Australian tourists, and other attacks and threats from Islamic militants based in Indonesia.” Phil Mercer, “Tensions Rise over Australia’s Pre-Emptive Strike Policy ahead of ASEAN Summit,” Voice of America, November 26, 2004; accessible at http://128.11.143.114/english/2004-11-26-voa13.cfm.
62. Ibraham Bani Odeh, a bomb maker for Hamas, was killed in November 2000, when the car he was driving exploded. Nobody else was reported hurt in the blast. Although some Israeli officials denied responsibility for the death, Israel had issued a warning earlier in the week that it would hunt down terrorists. Jamie Tarabay, “Palestinians Blame Israel on Death,” Associated Press, November 25, 2000. Palestinians executed Bani Odeh’s relative after finding him guilty of assisting Israel in the bombing. “Palestinians Executed for Israel Links,” CNN, January 13, 2001; accessible at http://archives.cnn.com/2001/WORLD/meast/01/13/palestinian.executions/. In August 2001 undercover soldiers shot and killed Emad Abu Sneineh, a Fatah militant. No injuries were reported. Greg Myre, “Israeli Troops Kill Militia Leader,” Associated Press, August 15, 2001. A member of Al Aqsa Martyrs Brigade was killed in June 2001 when the public telephone he was using exploded. Two bystanders “were lightly wounded by flying debris.” Jamie Tarabay, “Palestinian Activist Killed in Explosion,” Associated Press, June 24, 2001.
63. Margot Dudkevitch, “Shehadeh Was ‘Ticking Bomb,’” Jerusalem Post, July 24, 2002, p. 3.
64. Ibid.
65. John Ward Anderson and Molly Moore, “Palestinians Vow Revenge after Gaza Missile Strike; Militants Said to Be Poised for Truce before Hamas Figure, 14 Others Died,” Washington Post, July 24, 2002, p. A13.
66. Ibid.
67. Janine Zacharia and Gil Hoffman, “US Condemns ‘Heavy-handed’ Action,” Jerusalem Post, July 24, 2002, p. 1.
68. Dudkevitch, op. cit.
69. Anderson and Moore, op. cit.
70. Ibid.
71. “Global Condemnation for Strike: U.S.: It was ‘heavy-handed,’” Ha’aretz, July 23, 2002.
72. President Clinton authorized the targeted killing of Osama bin Laden in 1998, following “the bombing of two U.S. embassies in East Africa which Bin Laden was suspected of masterminding.” “Clinton Ordered Bin Laden Killing,” BBC News, September 23, 2001; accessible at http://news.bbc.co.uk/17hi/world/americas/1558918.stm.
73. Alan M. Dershowitz, “Killing Terrorist Chieftains Is Legal,” Jerusalem Post, April 22, 2004; accessible at http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull+cid=1082606033932.
74. See HCJ 5100/94, Public Committee against Torture in Israel v. Government of Israel.
75. See Christopher Shea, “Countless,” Boston Globe, November 7, 2004, p. D4.
76. Heymann and Kayyem, op. cit., pp. 63–64.
77. Ibid., p. 60 (internal quotation marks omitted).
78. For the details of the criteria, see ibid., p. 66.
79. The criteria proposed in the Heymann-Kayyem report are certainly an improvement over the current rules for covert actions, which, according to the report, include the following:
If a targeted killing were to be carried out in the form of a covert action by an intelligence agency, the President would have to comply with specific procedures under federal statutes. In order to authorize a covert action, the President must make a finding that (1) the action is necessary to support identifiable foreign policy objectives of the United States and (2) is important to the national security of the United States. . . . These findings must be sent to the congressional intelligence committees, but, in extraordinary circumstances, they may be sent only to the congressional leadership.
Ibid., pp. 60–61. This was precisely the sort of vague and open-ended criteria—“necessary to support identifiable foreign policy objectives of the United States” and “important to the national security of the United States”—that was used by some to justify our ignoble role in the death of the Western Hemisphere’s first elected Marxist leader Salvadore Allende. See Diana Jean Schemo, “U.S. Victims of Chile’s Coup: The Uncensored File,” New York Times, February 13, 2000, p. 1. It would be difficult to imagine an assassination that could not be rationalized by reference to foreign policy objectives and national security interests. The only acceptable criteria for a preemptive targeted killing must relate to relatively certain terrorist threats involving mass casualties, multiple attacks, the acquisition of weapons of mass destruction, and the like.
80. Mark Lavie, “Israel Resumes Diplomatic Contacts with Palestinians, Halts Targeted Killings of Militants,” Associated Press, January 26, 2005.
81. Ori Nir, “CIA-linked Study Warns of Bio-terrorist Attacks during the Next 15 Years,” Forward, January 21, 2005, p. 1.
82. Ibid.
83. The health care apparatus in New Orleans did not fare well during the hurricane and its aftermath. One doctor wrote: “Hurricane Katrina struck a devastating blow to health care in New Orleans and the Gulf Coast, crippling most hospitals, destroying virtually all nursing homes, shutting down two medical schools and wiping out thousands of physicians’ practices.” Dr. Carmen A. Puliafito, “How to Hurricane-Proof Health Care,” Palm Beach Post October 2, 2005; accessible at http://www.palmbeachpost.com/opinion/content/opinion/epaper/2005/10/02/ale_puliafito_1002.html.
84. There may, however, be psychological costs attached even to the construction of detox facilities. The large shower rooms remind some of the gas chambers at Auschwitz and other death camps, even though their purpose is to save life.
85. Ian Urbina, “Antiterror Test to Follow Winds and Determine Airborne Paths,” New York Times, February 11, 2005, p. B1.
86. Ian Urbina, “City Weighs Plans to Deliver Medicine to Public after Attack,” New York Times, February 7, 2005, p. B1.
87. “No one was reported killed by the seven Scud missiles that struck Israel, but Israel Radio reported that a 3-year-old Arab girl suffocated in a gas mask, that at least four elderly people died of heart attacks or suffocation while wearing gas masks, and that 12 people were injured.” Michael Kranish, “Israel Weighing Response; US Hits Scud Sites after Iraqi Attack,” Boston Globe, January 18, 1991, p. 1.
88. See, for example, David Shook, “Smallpox: ‘We Eradicated It Before . . . ,’” Business Week (October 25, 2001); accessible at http://www.businessweek.com/bwdaily/dnflash/oct2001/nf20011025_6673.htm.
89. Nicholas Wade, “A DNA Success Raises Bioterror Concerns,” New York Times, January 12, 2005, p. A15.
90. According to the Web site for the Centers for Disease Control and Prevention, “In the past, about 1,000 people for every 1 million people vaccinated for the first time experienced reactions that, while not life-threatening, were serious,” and “Rarely, people have had very bad reactions to the vaccine. In the past, between 14 and 52 people per 1 million people vaccinated for the first time experienced potentially life-threatening reactions.” Centers for Disease Control and Prevention, “Smallpox Fact Sheet: Side Effects of Smallpox Vaccination”; accessible at http://www.bt.cdc.gov/agent/smallpox/vaccination/reactions-vacc-public.asp.
91. Alex R. Kemper et al., “Expected Adverse Events in a Mass Smallpox Vaccination Campaign,” Effective Clinical Practice (March–April 2002); accessible at http://www.acponline.org/journals/ecp/marapr02/kemper.htm.
92. From the Web site for the Boston Public Health Commission:
What is ring vaccination?
This is a strategy that will be used for containing a smallpox outbreak. Vaccinating and monitoring a “ring” of persons around each smallpox case and his/her contacts will help protect those at greatest risk for developing disease and provide a buffer of immune persons to prevent the spread of disease within the community. Focused “ring” vaccination campaigns along with isolation of cases, intensive surveillance, and contact tracing will be the cornerstones for disease prevention and control.
Accessible at http://www.bphc.org/bphc/smallpoxvac_clin.asp.
93. This hypothetical may lack a basis for all its particulars. For example, the virus may not be contagious in the immediate aftermath of exposure. But there are several bio-events that would fit this hypothetical.
94. The original is “Martial law is to law as martial music is to music,” but I like some martial music.
95. Wendy E. Parmet, “AIDS and Quarantine: The Revival of an Archaic Doctrine,” Hofstra Law Review vol. 14 (1985), pp. 53–90.
96. See Dershowitz, Shouting Fire, loc. cit., pp. 163–75.
97. Ibid., pp. 163–75.
98. “Incitement to massacre the civilian Tutsi population over the radio air-waves of RTLM and Radio Rwanda can be directly imputed to Éliezer Niyitegeka for his failure to control the programming of the radio broadcasts or to curtail the anti-Tutsi programming, or to sanction or punish those that used radio broadcasts in a campaign of genocide.” The Prosecutor v. Éliezer Niyitegeka, ICTR-96-14-T (May 16, 2003).
99. See these defendants’ cases at http://www.ictr.org/ENGLISH/cases/completed.htm.
100. Jon Silverman, “Rwanda’s ‘Hate Media’ on Trial,” BBC News, June 29, 2002; accessible at http://news.bbc.co.uk/27hi/africa/2075183.stm.
101. The First Amendment provides that Congress “shall make no law . . . abridging the freedom of speech. . . .”
102. New York Times Co. v. United States, 403 U.S. 713 (1971), p. 733.
103. See “Some Prior Restraints Squeaked By in Past Year, Says PLI Panel,” Media Law Reporter, vol. 30, no. 46 (November 26, 2002); accessible at http://ipcenter.bna.com/pic2/ip.nsf/id/BNAP-5G5L3N?OpenDocument.
104. Adam Cohen, “The Latest Rumbling in the Blogosphere: Questions about Ethics,” New York Times, May 8, 2005.
105. See Thomas L. Friedman, “If It’s a Muslim Problem, It Needs a Muslim Solution,” New York Times, July 8, 2005, p. A23.
106. See Dominic Casciani, “Q&A: Religious Hatred Law,” BBC News, June 9, 2005; accessible at http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/1/hi/uk/3873323.stm.
107. See “France ‘to Expel Radical Imams,’” BBC News, July 15, 2005; accessible at http://newsvote.bbc.co.uk/mpapps/pagetools/print/news.bbc.co.uk/2/hi/europe/4688111.stm; Samantha Maiden, “Costello Tells Firebrand Clerics to Get Out of Australia,” Australian, August 23, 2005; and Philip Johnston, “Imams Who Praise Terrorism to Face Deportation,” London Telegraph, July 21, 2005; accessible at http://www.opinion.telegraph.co.uk/news/main.jhtml?xml=/news/2005/07/21/nimam21.xml.
108. Law and morality must keep up with the ever-advancing technology and the constantly active human imagination. See Dershowitz, Shouting Fire, loc. cit., pp. 487–92.
CHAPTER 5.
BUSH DOCTRINE ON PREEMPTION, THE U.S. ATTACK AGAINST IRAQ
1. The irony is that this sort of deterrent approach is almost certainly repugnant to international law, which forbids retaliatory attacks on civilian population centers. Because the United States had demonstrated its willingness to drop nuclear bombs on Japanese civilian population centers, our threat was credible, despite the prohibition on attacking civilian population centers that was made explicit by international law following Hiroshima and Nagasaki. The White House, “The National Security Strategy of the United States of America,” September 2002; accessible at http://www.whitehouse.gov/nsc/nss.pdf.
2. By 1996 Libya had constructed “the world’s largest underground chemical weapons plant” in the region of Tarhunah, and Clinton administration officials threatened to attack the installation unless weapons manufacturing ceased. Lenny Capello et al., “The Preemptive Use of Force: Analysis and Decision Making,” National Security Program Discussion Paper Series, Harvard University John F. Kennedy School of Government 1997, pp. 57–59. Clinton ordered missiles to be fired at targets in Sudan and Afghanistan in August 1998. James Bennet, “U.S. Cruise Missiles Strike Sudan and Afghan Targets Tied to Terrorist Network,” New York Times, August 21, 1998, p. A1. Clinton also considered an attack in 1994 on North Korea’s nuclear reactor. Toby Sterling, “Clinton Says He Had a Plan to Attack North Korean Reactor in 1994,” Associated Press, December 15, 2002.
3. The difference between acting preemptively without having announced a preemptive policy and announcing such a policy will be considered later.
4. There is considerable debate in the scholarly literature over whether earlier anticipatory actions constitute preemptions, reactions, or something in between. See generally Laura Secor, “Grand Old Policy,” Boston Globe, February 8, 2004, pp. H1, for a discussion of the work of Yale Professor John Lewis Gaddis, who argues that “Bush’s doctrine of preemption has deep roots in American history.”
5. Robert A. Pape, “Soft Balancing: How States Will Respond to America’s Preventive War Strategy,” TISS Conference paper, Duke University, January 17, 2003. Mark Dayton, writing in the Washington Post, characterized the proposed attack on Iraq as “something no president has done before.” In support of that claim, he cited “researches at the Library of Congress” to the effect that “the United States has never in its 213 year history launched a preemptive attack against another country.” Mark Dayton, “Go Slow on Iraq,” Washington Post, September 28, 2002, p. A23.
6. United States Conference of Catholic Bishops, statement on Iraq, November 13, 2002.
7. See Mark Aarons and John Loftus, Unholy Trinity: The Vatican, the Nazis, and the Swiss Banks (New York: St. Martin’s, 1998). The U.S. Conference of Catholic Bishops has generally been more “liberal” and more antiwar than some in the Vatican.
8. Richard Falk, “The New Bush Doctrine,” Nation (July 15, 2002), p. 9.
9. Other scholars agreed with Professor Falk in distinguishing between unacceptable preventive wars and acceptable preemptive attacks.
Preventive war is almost always a bad choice, strategically as well as morally. Preemption is another matter—legitimate in principle and sometimes advisable in practice. . . . Thus it is better to face the music sooner, when chances of military success are greater.
Preemption is unobjectionable in principle, since it is only an act of anticipatory self-defense in a war effectively initiated by the enemy. If the term is used accurately, rather than in the sloppy or disingenuous manner in which the Bush administration has used it to justify preventive war against Iraq, preemption assumes detection of enemy mobilization of forces to attack, which represents the start of the war. Beating the enemy to the draw by striking before he launches his attack is reactive, even if it involves firing the first shot.
Richard K. Betts, “Striking First: A History of Thankfully Lost Opportunities,” Carnegie Council on Ethics and International Affairs March 2, 2003; accessible at http://www.cceia.org/viewMedia.php/prmTemplateID/8/prmID/866.
So long as the word “always” is modified by “almost,” it is difficult to quarrel with this formulation. But if the danger is great enough and its likelihood sufficiently probable, the case for preventive—as distinguished from preemptive—war becomes more compelling.
10. Joachim C. Fest, The Face of the Third Reich: Portraits of the Nazi Leadership (New York: Pantheon, 1970), p. 48.
11. Although the chemical plant at Tarhunah, with its potential for producing weapons of mass destruction, was the immediate precipitating factor in generating the debate over preemption, the threat of “nuclear leakage,” especially to terrorist groups, “was also a concern. Preemption was a policy option to address our nuclear leakage and terrorist problems.” Capello et al., op. cit., p. v.
12. Ibid.
13. Ibid., p. vi.
14. Ibid., pp. 75–76.
15. There were certainly many factors that contributed to the Libyan decision, including preventive measures, such as the interception by the United States of a freighter carrying “centrifuge parts made in Malaysia, along with other products of Dr. Khan’s network, all bound for Libya. Confronted with the evidence, Libya finally agreed to surrender all of its nuclear program.” William J. Broad and David E. Sanger, “As Nuclear Secrets Emerge, More Are Suspected,” New York Times, December 26, 2004, p. 1.
16. In April 1986 U.S. planes bombed Tripoli and Benghazi, killing more than a hundred people. President Reagan justified the attack by blaming Libya for terrorist attacks. He cited a bombing ten days prior at a West Berlin nightclub that was frequented by U.S. service members. Ronald Reagan, “Address to the Nation on the United States Air Strike against Libya,” April 14, 1986; accessible at http://www.reagan.utexas.edu/archives/speeches/1986/41486g.htm. A couple of days later, according to the BBC, “The extremist group Arab Revolutionary Cells said it murdered two British and one American hostage in Lebanon on 17 April 1986, in retaliation for the US attack.” “On This Day: 15 April 1986,” BBC News; accessible at http://news.bbc.co.uk/onthisday/hi/dates/stories/april/15/newsid_3975000/3975455.stm.
17. Clinton has said that he would have supported military action, but much more slowly. See Larry King Weekend, CNN, February 9, 2003.
18. Capello et al., op. cit., p. 75.
19. “Russia Warns of Strikes on Terror Camps, Posts Bounty for Chechen Leaders,” Channel NewsAsia, September 8, 2004; accessible at http://www.channelnewsasia.com/stories/afp_world/view/105633/1/.html.
20. “Putin Tightens Grip on Russian Regions after Deadly Attacks,” Agence France Presse, September 13, 2004. Previously Russia and its predecessor, the Soviet Union, had condemned preemptive and preventive attacks. Jing-dong Yuan, “A Promising Partnership Is Tested: Russia and China,” International Herald Tribune, November 30, 2002, p. 4.
21. Charles Krauthammer, “Axis of Evil, Part Two,” Washington Post, July 23, 2004, p. A29; and Douglas Davis, “A Syrian Bomb?,” Jerusalem Post, September 10, 2004, p. 14.
22. Iran has already done this with regard to Israel, though it does not yet have the capacity to carry out its threat.
23. Jerome R. Corsi, Atomic Iran: How the Terrorist Regime Bought the Bomb and American Politicians (Nashville: WND Books, 2005), p. 39.
24. Some Israeli authorities believed that Egypt was preparing a first strike on its air force or its nuclear facility.
25. See p. 315, n. 61, supra. Recently, Prime Minister Howard advocated new antiter-rorism laws. According to these measures, it would be made easier for the police to search, monitor, and detain terror suspects. The New York Times observed that “[t]he antiterrorism bill, which even some backers have described as draconian, contains the most sweeping changes to security apparatus since World War II.” Raymond Bonner, “Australia to Present Strict Antiterrorism Statute,” New York Times, November 3, 2005, p. 6A. The BBC reported that Australia is divided about these new terrorism laws. While some critics fear that Australia might to turn into a “police state,” others support the new laws but think that the government must convince the country for its need. The BBC report quotes a terrorism analyst as follows: “One of the dilemmas the government is facing [is that] the police have proven that they can actually disrupt and foil alleged terrorist attacks with the existing legislation slightly amended, so the onus will be on them to prove why they need the wider laws.” Phil Mercer, “Australia Split on New Terror Laws,” BBC News (Sydney), November 9, 2005; accessible at http://news.bbc.co.uk/2/hi/asia-pacific/4420558.stm.
26. Philip Stephens, “For All Bush’s Bravado, the Preemption Doctrine Is Dead,” Financial Times, July 16, 2004, p. 17.
27. James M. Lindsay and Ivo H. Daalder, “Shooting First: The Preemptive War Doctrine Has met an Early Death in Iraq,” Los Angeles Times, May 30, 2004; accessible at http://www.cfr.org/pub7066/james_m_Lindsay_ivo_h_daalder/shooting_first_the_preemptivewar_doctrine_has_met_an_early_death_in_iraq.php.
28. “Preventive War: A Failed Doctrine,” New York Times, September 12, 2004, p. 12.
29. Michael Walzer has also distinguished between preventive war and preemptive attack. In an essay written in September 2002, he observed:
The war that is being discussed is preventative, not preemptive—it is designed to respond to a more distant threat. The general argument for preventive war is very old; in its classic form it has to do with the balance of power . . . Whether or not war is properly the last resort, there seems no sufficient reason for making it the first.
But the old argument for preventive war did not take into accounts weapons of mass destruction or delivery systems that allow no time for arguments about how to respond. Perhaps the gulf between preemption and prevention has now narrowed so that there is little strategic (and therefore moral) difference between them. The Israeli attack on the Iraqi nuclear reactor in 1981 is sometimes invoked as an example of a justified preventive attack that was also, in a sense, preemptive: The Iraqi threat was not imminent, but an immediate attack was the only reasonable action against it.
Michael Walzer, Arguing about War (New Haven: Yale University Press, 2004), pp. 146–47.
30. The editorial concluded by criticizing Vice President Cheney’s conception of preventive war: “Instead, he promises more preventive, offensive wars against hypothetical dangers like Iraq. Besides estranging America from its main European and Asian allies, and leaving Washington looking like an aggressor to much of the Arab and Muslim world, these policies kill American soldiers and civilians in the countries attacked, and they threaten to tie down the Army and Marine divisions America needs to have available for responding to real threats in the dangerous decades ahead.”
31. Gary Schmitt, “Shooting First: Going after Perceived Threats Will Remain Part of the U.S. Arsenal,” Los Angeles Times, May 30, 2004; accessible at http://www.newamericancentury.org/defense-20040601.htm.
32. Ruth Wedgwood, “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense,” American Journal of International Law, vol. 97, no. 3 (July 2003), pp. 576–85. This raises the broad jurisprudential question of whether a single abstract standard can ever govern the justifications of preventive war or it will always depend, at least to some degree, on the nature and history of the actors. Two countries, each building identical nuclear weapons, will pose entirely different threats depending on the likely use to which the weapons will be put.
33. Miriam Sapiro, “Iraq: The Shifting Sands of Preemptive Self-Defense,” American Journal of International Law, vol. 97, no. 3 (July 2003), pp. 599–607.
CHAPTER 6.
WOULD PREEMPTIVE ACTION AGAINST THE IRANIAN NUCLEAR PROGRAM BE JUSTIFIED?
1. To make matters even more complex, a former prime minister of Israel has said that Israel would not drop a nuclear bomb on an enemy population center, even in retaliation for a nuclear attack on Tel Aviv. See p. 96. It would rely on preemption against the military threats rather than deterrence by unlawful mutually assured destruction.
2. Suzanne Fields, “Confronting the New Anti-Semitism,” Washington Times, July 25, 2004; accessible at http://washtimes.com/books/20040724-105243-9684r.htm.
3. Jerome R. Corsi, Atomic Iran: How the Terrorist Regime Bought the Bomb and American Politicians (Nashville: WND Books, 2005), p. 42.
4. Ibid., p. 19.
5. Craig S. Smith, “Iran Moves toward Enriching Uranium,” New York Times, September 22, 2004, p. A12.
6. Ali Akbar Dareini, “Iranian Lawmakers, Shouting ‘Death to America,’Vote Unanimously for Resuming Uranium Enrichment,” Associated Press, October 31, 2004.
7. Ali Akbar Dareini, “Iran Confirms Converting 37 Tons of Raw Uranium into Gas,” Associated Press, May 9, 2005.
8. Tom Hundley, “Pressure Builds on Iran; Blair Says UN Security Council Is Next Stop If Nuclear Work Resumes,” Chicago Tribune, May 13, 2005.
9. “Iran angry at nuclear resolution,” CNN, September 25, 2005; accessible at http://www.cnn.com/2005/WORLD/meast/09/25/iran.iaea/; and “UN adopts motion on nuclear Iran,” BBC, September 24, 2005; accessible at http://news.bbc.co.uk/1/hi/world/middle_east/4277054.stm. In late November 2005, the Iranian parliament voted to block UN inspections of the nuclear facilities if Iran is referred to the Security Council.
10. “Crowd Attacks British Embassy,” Independent, September 29, 2005, p. 29.
11. Nazila Fathi, “Iran’s New President Says Israel ‘Must Be Wiped Off the Map,’ ” New York Times, October 27, 2005, p. 8.
12. Ibid.
13. Steven R. Weisman, “Western Leaders Condemn the Iranian President’s Threat to Israel,” New York Times, October 28, 2005, p. 9.
14. Ibid.
15. Michael Slackman, “Many in Jordan See Old Enemy in Attack: Israel,” New York Times, November 12, 2005, p. 1.
16. Ibid.
17. Joseph Nasr, “Egyptian Magazine: Israel-US Caused Tsunamis,” Jerusalem Post, January 7, 2005, p. 4.
18. Seymour M. Hersh, “The Coming Wars,” New Yorker (January 24 and 31, 2005); accessible at http://www.newyorker.com/fact/content/?050124fa_fact.
19. David E. Sanger, “Rice Says Iran Must Not Be Allowed to Develop Nuclear Arms,” New York Times, August 9, 2004, p. A3.
20. Anton La Guardia, “Israel Challenges Iran’s Nuclear Ambitions,” Daily Telegraph, September 22, 2004; accessible at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/09/22/wnuke22.xml&sSheet=/portal/2004/09/22/ixportaltop.html.
21. Corsi, op. cit., p. 32.
22. Quoted in Hersh, op. cit., p. 44.
23. Quoted in H. D. S. Greenway, “Onward to Iran?,” Boston Globe, February 4, 2005, p. A15.
24. “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, Part IV, Section I, Chapter I, Article 48.
25. Federal law states that “whoever . . . seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained . . . shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.” 18 U.S.C. 1203 (emphasis added). The law does not specify who must have caused the death; if someone dies, the hostage taker is responsible.
26. Menachem Begin said, in explaining the timing of the Osirak attack: “[I]f the reactor had become . . . hot, we couldn’t do anything further. Because if . . . we would open it . . . a horrifying wave of radioactivity would come out from the reactor and cover the sky over Baghdad. . . . Hundreds of thousands of innocent citizens—residents, men, women and children—would have been hurt.” Shlomo Nakdimon, First Strike: The Exclusive Story of How Israel Foiled Iraq’s Attempt to Get the Bomb (New York: Summit, 1987), p. 239.
27. Corsi, op. cit., p. 32.
28. Ibid., p. 219.
29. Hersh, “The Coming Wars,” loc. cit.
30. Ibid.
31. John Daniszewski, “Iran’s Victor Urges Unity in Wake of Vote,” Los Angeles Times, June 26, 2005, p. A10.
32. See Michael Slackman, “Victory Is Seen for Hard-Liner in Iranian Vote,” New York Times, June 25, 2005, p. A1; and Charles A. Radin, “Hard-liner Wins Iran Presidency,” Boston Globe, June 25, 2005, p. A4.
33. Hersh, “The Coming Wars,” loc. cit.
34. Shirin Ebadi and Hadi Ghaemi, “The Human Rights Case against Attacking Iran,” New York Times, February 8, 2005, p. A25.
35. The New York Times reported that the discovery of blueprints for an atomic bomb in the files of the Libyan weapons program “gave the experts a new appreciation of the audacity of the rogue nuclear network led by A. Q. Khan, a chief architect of Pakistan’s bomb. Intelligence officials had watched Dr. Khan for years and suspected that he was trafficking in machinery for enriching uranium to make fuel for warheads. But the detailed design represented a new level of danger, particularly since the Libyans said he had thrown it in as a deal-sweetener when he sold them $100 million in nuclear gear.” The report quotes “one American expert”: “This was the first time we had ever seen a loose copy of a bomb design that clearly worked, and the question was: Who else had it? The Iranians? The Syrians? Al Qaeda?” William J. Broad and David E. Sanger, “As Nuclear Secrets Emerge, More Are Suspected,” New York Times, December 26, 2004, p. 21.
36. Matthew Continetti, “International Men of Mystery,” Weekly Standard, October 21, 2004.
37. Gareth Evans, President and Chief Executive of the International Crisis Group, and his committee might well favor military intervention as a last resort, but only following a vote by the Security Council, where a Chinese (and perhaps Russian and French) veto is likely. Professors Lee Feinstein and Ann-Marie Slaughter might favor military intervention by a regional organization such as NATO or—as an absolutely last resort—“unilateral action of coalitions of the willing.” Others would never consider any military option in the absence of an imminent attack, regardless of how likely and catastrophic the threat.
CHAPTER 7.
TOWARD A JURISPRUDENCE OF PREVENTION AND PREEMPTION
1. Oliver Wendell Holmes, Jr., The Common Law (New York: Dover, 1991), p. 1.
2. Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review, vol. 10, no. 8 (1897), p. 457.
3. George Santayana, The Life of Reason: Reason in Common Sense (New York: Dover, 1980), p. 284. As some wag once put it: “Anyone who has ever heard Santayana’s bon mot is condemned to repeat it.”
4. Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (New York: Basic Books, 2004), p. 8.
5. Alan M. Dershowitz, The Genesis of Justice: Ten Stories of Biblical Injustice That Led to the Ten Commandments and Modern Law (New York: Warner, 2000).
6. Roscoe Pound, quoted in Christian Science Monitor, April 24, 1963, quoted in Michael R. Stahlman et al., “New Developments in Search and Seizure: More than Just a Matter of Semantics,” Army Lawyer (May 2002); accessible at http://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/ARMYLAWYER.NSF/0/68866d468a3cf4fe85256e5b0054d0f4/$FILE/ATTHVHZB/Article%204.pdf.
7. There is a wonderful legend recounted in the Talmud: The great Rabbi Eliezer was engaged in an acrimonious dispute with the other sages about an arcane point of law. Eliezer was certain that his interpretation of the Torah was the correct one, and he “brought forward every imaginable argument, but they did not accept them.” Finally, in desperation, he invoked the original intent of the author of the Torah, God himself. Eliezer implored, “If the halachah [the authoritative meaning of the law] agrees with me, let it be proved from Heaven!”, whereupon a heavenly voice cried out to the others: “Why do ye dispute with R[abbi] Eliezer, seeing that . . . the halachah agrees with him!” But another of the rabbis rose up and rebuked God for interfering in this very human dispute. “Thou hast long since written the Torah,” and “we pay no attention to a Heavenly Voice.” The message was clear: God’s children were telling their Father, “It is our job, as the rabbis, to give meaning to the Torah that you gave us. You gave us a document to interpret, and a methodology for interpreting it. Now leave us to do our job.” God agreed, laughing with joy. “My . . . [children] have defeated Me in argument.” Babylonian Talmud, Baba Mezi’a 59b, quoted in Alan M. Dershowitz, Shouting Fire (New York: Little, Brown, 2002), pp. 391–92.
8. Midrash Genesis Rabba.
9. Thomas Hobbes, Leviathan (1651), ch. 18.
10. Richard P. Feynman, What Do You Care What Other People Think? (New York: Norton, 1988), p. 245.
11. Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1979), p. 47.
12. Talmud, Berakhot, quoted in Elizabeth Frost-Knappman and David S. Shrager, The Quotable Lawyer (New York: New England Publishing, 1998), p. 255.
13. Brown v. United States, 256 U.S. 335, 343 (1921).
14. Jacqui Goddard, “Florida Boosts Gun Rights, Igniting a Debate,” Christian Science Monitor, May 10, 2005.
15. Steve Bousquet, “Bill Would Relax Rules on Self-defense,” St. Petersburg Times, February 24, 2005; accessible at http://www.sptimes.com/2005/02/24/State/Bill_would_relax_rule.shtml.
16. Myres S. McDougal, “The Soviet-Cuban Quarantine and Self-Defense,” American Journal of International Law, vol. 57 (1963), pp. 600–01, quoted in William C. Bradford, “ ‘The Duty to Defend Them’: A Natural Law Justification for the Bush Doctrine of Preventive War,” Notre Dame Law Review, vol. 79 (2004), p. 1390, n. 87.
17. One reason why Israel may have become the laboratory for preemption is that it believes it cannot count on UN support or assistance to prevent any attack, as evidenced by the UN’s hasty accession to Nasser’s demand that its peacekeepers immediately leave the Sinai in 1967. See Michael B. Oren, Six Days of War: June 1967 and the Making of the Modern Middle East (Oxford: Oxford University Press, 2002), p. 67.
18. See Alan M. Dershowitz, The Abuse Excuse: And Other Cop-outs, Sob Stories, and Evasions of Responsibility (Boston: Little, Brown, 1994).
19. The UN did call for an immediate cease-fire, which was not implemented until several days later.
20. Letter from U.S. Secretary of State Daniel Webster to British Plenipotentiary Lord Ashburton, August 6, 1842, quoted in Bradford, op. cit., p. 1381.
21. United Nations High-level Panel on Threats, Challenges and Change, “A More Secure World: Our Shared Responsibility” (2004), p. 63; accessible at http://www.un.org./secureworld/.
22. Gareth Evans, “When Is It Right to Fight” Survival (Autumn 2004), pp. 59, 64–65; accessible at http://www.cfr.pdf./59-2.pdf. There were many nations at the UN that did “seriously suggest” that Israel acted unlawfully when it did not “wait to be fired upon” in 1967.
23. Ibid., p. 65.
24. “Excerpts: Annan interview,” BBC News, September 16, 2004; accessible at http://news.bbc.co.uk/1/hi/world/middle_east/3661640.stm.
25. Jeffrey Goldberg, “The Great Terror,” New Yorker, March 25, 2002; accessible at http://www.newyorker.com/fact/content/?020325fa_FACT1.
26. United Nations High-level Panel on Threats, Challenges and Change, op. cit., p. 63.
27. Ibid.
28. Ibid.
29. Evans, op. cit., p. 65.
30. Ibid., pp. 65–66.
31. Giordano Bruno, De Monade, numero et figura (1591), quoted in Frost-Knappman and Shrager, op. cit., p. 188.
32. Talmud Shabbath, 31a.
33. United Nations High-level Panel on Threats, Challenges and Change, op. cit., p. 67.
34. Michael J. Glennon, Limits of Law, Prerogatives of Power (New York: Palgrave, 2001), p. 2.
35. For example, Bush v. Gore, 531 U.S. (2000), p. 98. See Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford University Press, 2001).
36. Until recently Israel was ineligible to sit on the Security Council, which requires membership in a regional group. While Israel geographically would be part of the Asian Group, several countries in that bloc, including Iran, Libya, and Syria, disqualified Israel for years. A consensus must exist among all the group’s members in order to admit a new nation into a group. In 2000, Israel joined the Western European and Others Group (WEOG), which is the only group with membership that is not exclusively geographic. The United States, Australia, Canada, and Turkey are among its members. The admission of Israel was initially on a temporary basis, with a requirement that the country reapply every four years. Israel’s membership in WEOG was extended in 2004.
It is now theoretically possible for Israel to sit on the Security Council. (See Permanent Mission of Israel to the United Nations, “Israel’s Membership in WEOG”; accessible at http://www.israel-un.org/israel_un/weog.htm.) But to date Israel has never been permitted to sit on this important body.
37. Russia’s and China’s veto power has often resulted in stalemates in votes relating to Israel.
38. Bob Burton, “Howard unmoved by ‘preemption’ furor,” Asia Times, December 3, 2002; accessible at http://www.atimes.com/atimes/Southeast_Asia/DL03Ae02.html.
39. To be sure, there are some ideological anti-interventionists who oppose both anticipatory self-defense (at least when the threat is not immediate) and anticipatory protection of others. For an example of this isolationist viewpoint, see Patrick J. Buchanan, A Republic, Not an Empire: Reclaiming America’s Destiny (Washington, D.C.: Regnery, 2002).
40. Samantha Power, A Problem from Hell: America and the Age of Genocide (New York: Basic Books, 2002), pp. 503, 504, 508.
41. For a brilliant discussion of these issues, see Ibid.
42. Anne Geran, “Powell: Tsunami Aid May Help Fight Terror,” Associated Press, January 4, 2005.
43. Lee Feinstein and Ann-Marie Slaughter, “A Duty to Prevent,” Foreign Affairs (January–February 2004), pp. 136–37.
44. Ibid., p. 137.
45. Ibid., pp. 141–42.
46. Ibid., p. 148.
47. Ibid., pp. 148–149.
48. Ibid., p. 149.
49. See also statement of Kenneth Adelman, quoted on p. 97.
50. See Alan Dershowitz, “Tortured Reasoning,” in Torture: A Collection, ed. Sanford Levinson (New York: Oxford University Press, 2004); and Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven: Yale University Press, 2002), pp. 131–63.
51. Alan Dershowitz, The Case for Israel (Hoboken: Wiley, 2003), p. 184.
52. Nathan Lewin, “Deterring Suicide Killers,” Sh’ma (May 2002); accessible at http://www.shma.com/may02/nathan.htm.
53. Ami Eden, “Top Lawyer Urges Death for Families of Bombers,” Forward, June 7, 2002; accessible at http://www.forward.com/issues/2002/02.06.07/news1.html.
54. Alan Dershowitz, “Death to the Bombers’ Kin: Sacrilegious, or by the Book?,” letter to the editor, Forward, June 21, 2002; accessible at http://www.forward.com/issues/2002/02.06.21/letters.html.
55. Fyodor Dostoevsky, The Brothers Karamazov (New York: Farrar, Straus & Giroux, 2002), p. 245.
56. Even before the most minimal and least intrusive military options are employed, there might be a range of nonmilitary options, including such coercive ones as sanctions and boycotts.
57. Israel did, however, threaten to destroy any new reactor capable of providing Iraq with nuclear weapons.
58. See Richard A. Posner, Catastrophe: Risk and Response (Oxford: Oxford University Press, 2004).
59. Whitney v. California, 274 U.S. 357 (1927). Just twelve years prior to the Whitney decision, Justice Oliver Wendell Holmes upheld the conviction of a newspaper editor who had published an article advocating nude swimming in isolated areas. This is what the great Holmes wrote:
The printed matter in question . . . an article entitled, “The Nude and the Prudes,” . . . predicts and encourages the boycott of those who thus interfere with the freedom of Home, concluding: “The boycott will be pushed until these invaders will come to see the brutal mistake of their action and so inform the people.” Thus by indirection, but unmistakably, the article encourages and incites a persistence in what we must assume would be a breach of the state laws against indecent exposure. . . . [T]he argument that this act is both an unjustifiable restriction of liberty and too vague for a criminal law must fail. It does not appear and is not likely that the statute will be construed to prevent publications merely because they tend to produce unfavorable opinions of a particular statute or of law in general. In this present case the disrespect for law that was encouraged was disregard of it, an overt breach and technically criminal act.
Fox v. Washington, 236 U.S. 273 (1915), pp. 276–77.
60. Or even true positives, if the harm is remediable.
61. See Entebbe analysis, pp. 89–93.
62. See Dershowitz, Genesis of Justice, loc. cit., ch. 4, on God arguing with Abraham over sinners of Sodom.
63. See Patrick J. McDonnell and Jonathan Peterson, “Tightening Immigration Raises Civil Liberties Flag,” Los Angeles Times, September 23, 2001.
64. See Appendix A, p. 251.
65. See Michael J. Glennon, Limits of Law, Prerogatives of Power (New York: Palgrave, 2001), p. 208.
66. For an explanation of the justness of this type of arrangement, see John Rawls, A Theory of Justice (Cambridge: Belknap, 1999).
67. Eric A. Posner, “All Justice, Too, Is Local,” New York Times, December 30, 2004, p. 23.
68. See, for example, Karen J. Alter, “The European Union’s Legal System and Domestic Policy: Spillover or Backlash?” in Legalization and World Politics, ed. Judith Goldstein et al. (Cambridge: MIT Press, 2001).
69. Louis Rene Beres, “On Assassination as Anticipatory Self-Defense: The Case of Israel,” Hofstra Law Review, vol. 20 (1991), p. 323, quoted in Bradford, op. cit., p. 1394, n. 99.
70. “Legality of the Threat or Use of Nuclear Weapons,” 1996 I.C.J. 226, p. 263, quoted in ibid., p. 1390.
71. “Remarks by the Honorable Dean Acheson,” American Society of International Law Proceedings, vol. 57 (1963), pp. 13, 14, ibid., p. 1470.
72. Concluding that a particular military option should be available as a matter of law or morality does not mean that it should always be employed as a matter of tactics or prudence.
73. See Alan M. Dershowitz, “Preventive Confinement: A Suggested Framework for Constitutional Analysis,” Texas Law Review, vol. 51 (1973), p. 1295.
74. Some of that history is parallel to that outlined in Chapter 1 of this book, in which a distinction was drawn between the formal system of criminal justice and far less formal mechanisms of crime control:
75. Dershowitz, “Preventive Confinement, loc. cit., pp. 1295–96.
76. United States v. Salerno, 481 U.S. 739 (1987), pp. 747–48.
77. Taken to its logical conclusion, this “reasoning” could lead to an absurd ruling that therapeutic execution of the kind carried out in Nazi Germany was not “punishment” because the legislative purpose was eugenic and preventive.
78. “The Case of the Speluncean Explorers: A Fiftieth Anniversary Symposium,” Harvard Law Review, vol. 112 (1999), pp. 1899–1913.
79. Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York: Basic Books, 2002).
Some of the world’s most intractable problems grow out of the clash of absolute moral positions; many, but not all of them, religiously based. I have written elsewhere against the existence of moral absolutes. See Alan Dershowitz, Rights from Wrongs: A Secular Theory of the Origin of Rights (New York: Basic Books, 2005). I am now working on a project that asks whether many arguments that purport to be moral are not really based on hidden empirical assumptions. My soft claim—with which few will disagree—is that many complex arguments that purport to be moral contain significant empirical underpinnings. For example, the argument that capital punishment is morally wrong is often based on empirical assumptions about the deterrent effect of capital punishment, its racially and economically selective application, its deleterious impact on how life is valued, the possibility that innocent people may be executed, and other similar issues of fact (or at least mixed issues of fact and morality). Many current opponents of capital punishment would concede that if it could be proven beyond any doubt that the killing of a small number of indisputably guilty and culpable murderers—selected fairly and without racial, economic, or other invidious factors—would deter (and/or prevent) the killing of a much larger number (how much larger may be open to disagreement) of potential murder victims, while at the same time enhancing the value of life, that it would be morally permissible (some would say morally required) for the state to practice capital punishment. Some would argue that the deliberate taking of any life, as punishment, is immoral, but when their arguments are carefully deconstructed, it may well turn out that at least some of them are empirical, at least in part.
Even if I am correct about capital punishment, that does not prove my general assertion—even in its soft version—that many other moral arguments are, in reality, factual disputes dressed up as moral arguments. So long as I merely claim that “many” other moral arguments fit into this category, I can demonstrate that I am correct. Were I to assert the harder version of this claim—that all moral arguments are always only empirical claims in disguise—I would have a much more daunting burden to satisfy. First, I can never address all moral arguments, since there will always be some I have not considered. Second, it will be asserted that there are surely some moral claims that have no empirical underpinnings—that are purely normative. Kant comes to mind. His adamant rejection of all consequential considerations seems inconsistent with any empirical underpinnings, but I plan to show that a close reading even of Kant often reveals some hidden empirical assumptions.
In a more contemporary setting, let us consider the arguments for and against abortion. Advocates of a woman’s right to choose abortion focus on several factors: equality, autonomy, health hazards to the woman, the status of the fetus as a non-human being; the risks of bringing unwanted children into this world, the effect on population control, and other considerations. Opponents of abortion argue that the fetus is an innocent human life; that allowing a fetus to be killed diminishes the value of all life; that abortion encourages promiscuous sex; that the Bible prohibits abortion. This later argument raises the broader issue of faith-based “empirical” assumptions not subject to null hypothesis. For example, if God gave the Ten Commandments to Moses, it might follow that its rules are morally compelled, but if the Ten Commandments (and the Bible in general) were written by mere mortals, then they are simply part of the marketplace of morality. Why should we expect absolutes based on this human invention, when no other inventions are perfect?
This sort of deconstruction of moral arguments, particularly those that lead to moral absolutes, is the subject of one of my current projects that I hope to publish in the near future.
APPENDIX A.
PREVENTIVE DISBARMENT: THE NUMBERS ARE AGAINST IT
1. Michael A. Bishop and J. D. Trout, “50 Years of Successful Predictive Modeling Should Be Enough: Lessons for Philosophy of Science,” Philosophy of Science, vol. 69, p. S198, accessible at http://www.niu.edu/phil~bishop/50%20years%20of%20successful%20predictive%20modeling%20should%20be%20enough%20Lessons%20for%20philosophy%20of%20science.pdf.
APPENDIX B.
KARYOTYPE, PREDICTABILITY AND CULPABILITY
1. Lewis Carroll, Through the Looking-Glass and What Alice Found There (New York: William Morrow, 1993), p. 97.
2. A. Sandberg, G. F. Koepf, T. Ishihara, et al., “XYY Human Male,” Lancet (1961), p. 488.
3. P. A. Jacobs, M. Brunton, M. M. Melville, et al., “Aggressive Behavior, Mental Sub-normality and the XYY Male,” Nature 208 (1965), p. 1351.
4. D. R. Owen, “The 47 XYY Male: A Review,” Psychology Bulletin 78 (1972), p. 209.
5. Walzer eventually ended the screening, after facing intense public criticism. See Philip Weiss, “Ending the Test for Extra Chromosomes,” Harvard Crimson, September 15, 1975.
6. A. M. Dershowitz, “Preventive Disbarment: The Numbers Are Against It,” American Bar Association Journal 58 (1972), p. 815.
7. W. Blackstone, Blackstone Commentaries on the Laws of England, vol. 4 (London: J. Murray, 1857), p. 25.