Sunday, October 28, 2007

Dershowitz: Diatribe vs. Dialogue

By Jason Blau

I received two announcements that Harvard University Professor Alan Dershowitz was coming to speak at Yale Law School on Thursday, October 11th. The first was from the Yale Initiative for the Interdisciplinary Study of Anti-Semitism announcing the lecture entitled “Anti-Semitic Hate Speech: Incitement to Violence in the Absence of a Marketplace of Ideas.” The second was from a liberal Jewish email list to which I subscribe calling for protesters due to Dershowitz’s purported support of torture. The disjunction between these two subjects was an unfortunate portent of the evening.

Knowing little of Professor Dershowitz beyond reading The Case for Israel, I imagined that the lecture would be an unadventurous rehash of everything I had been taught since Hebrew School. I was as thoroughly surprised as impressed when he talked instead about his interest in preemptive laws, fighting words, and unearthing Thomas Jefferson’s views on incitement to violence (You can see a recording of the speech here). Israel was not the focus of the lecture, and I would claim that anti-Semitic hate speech was at most an interesting and relevant example of the kind of legal theory Professor Dershowitz proposed.

The question and answer session was Professor Dershowitz’s true time to bring his strongest and loudest arguments to bear. In a sad reflection of the reality of Professor Dershowitz’s public character, questioning immediately turned to two subjects: criticisms of his “torture warrant” idea and criticisms of his support for Israel. I will focus on the latter.

The questioners, in varying degrees of aggressiveness, all seemed to ask the same question: “How can you support an Israel that does (insert perceived human rights violation here)?” The accusations ranged from unfair immigration policies to poor spousal reunification laws to the more tried and true stories of Palestinian despondency. The responses were mainly along three lines. Taking a little liberty to paraphrase, they were “Why are you wasting your time on this when there are real human rights problems in other countries?” “How is what Israel is doing any worse than any other country?” and “The fault is clearly with the Palestinians.” The first two of these responses demonstrated what Professor Dershowitz maintains is a strong anti-Semitism in most of the criticism of Israel. I would by lying if I did not admit that not only did I find his argumentation compelling but it clearly laid out what seems so wrong with discourse about Israel today. To single out Israel for supposed violations is hypocritical and downright dangerous when it draws attention away from the serious problems facing the world.

But for as valid and as prescient as I find these responses, at the end of the day I think they miss the point. Professor Dershowitz was correct to take to task the smug superiority of the left that has an infinite capacity for outrage at a tiny democracy precariously positioned in a sea of its enemies while choosing to ignore everything else. Professor Dershowitz was correct to praise the Israeli Supreme Court for engaging in an incredible balancing act of human rights and security—and for the Israeli democracy that allows for critique and correction when it errs. However, none of this responds to what I believe is the most relevant question: where do we go from here?

As an American, I understand that I ought not to have as much input into the processes of Israeli policy making as an Israeli. But as a Jew, unlike the vast majority of Israel’s critics, I do have some standing to demand more from the Jewish State. Suppose that Professor Dershowitz is correct in asserting that Israel has done a far better job than any other nation could in regards to safeguarding political liberty (I am willing to believe this is true). Ought Israel not continue to strive for better things? Ought Jews worldwide not express their moral opinions to shape Israel into the most just nation it can be? Perhaps Professor Dershowitz would claim that such a process is already occurring. Perhaps. However, he does the dialogue a disservice with his often brash and arrogant speaking. I was extremely uncomfortable at various points in the lecture when audience members began applauding or cheering his more personal attacks. It was embarrassing to see fellow Jews so whipped up into a fervor that a woman behind me yelled “oh boo-hoo” and “damn anti-Semite” at a concerned questioner.

More importantly, the kind of arguing about Palestinian and worldwide anti-Semitism that concludes with “and thus Israel is right” just does not seem helpful to me. I am far less concerned with who is more racist and who committed more past harms than how to establish a lasting peace. And while I was impressed with Professor Dershowitz’s arguments for why Israel is great, I just do not care. The Professor gave a history of the conflict that places a lot of blame on Arafat, leaders of Arab nations, and the Palestinians themselves. Maybe he is 100% right. So what? Even if I were completely self interested, I would think that is better to move on than constantly wage the battles of the past. Suppose (as I believe is true), the terrible conditions of Palestinian refugees are largely the fault of Arab leaders who use them as a pawn in domestic politics. How does this absolve Israel of the moral obligation to treat them justly and aid their development as a nation? It is these questions that were avoided by responses that reverted to perhaps legitimate, although also perhaps irrelevant, claims of anti-Semitism.

Unfortunately for all of us, the lack of constructive dialogue is just as much due to Professor Dershowitz’s virulent critics for not asking the pertinent questions as the Professor himself for not offering pertinent responses. Professor Dershowitz came to the Yale Law School to give a speech on anti-Semitic hate speech and the legal issues surrounding incitement to violence. And yet the bulk of the discussion centered on his views on torture and his defenses of Israel. The anti-Israel crowd got a chance to lob cheap shots at a respected academic, the pro-Israel crowd got a chance to cheer on slogans while willfully ignoring complexities, and everyone lost out on the ability to discuss the merits of the lecture and the possibilities for constructive dialogue.


Jason said...

Today's YDN contained a three weeks delayed response to Professor Dershowitz's speech by the Public Committee Against Torture in Israel through spokesman Louis Frankenthaler, available here. Dershowitz shredded the Committee Against Torture pretty thoroughly in response to a questioner who cited them. Mr. Frankenthaler is right to take Dershowitz to task for bein too squeemish to use the term "torture" but the rest of the letter falls squarely into the kind of unproductive name calling I referred to in my post.

Professor Dershowitz tried to distinguish between the "torture" employed by the NAZIs and the Stalinists and the "extreme interrogation" used by Israel. I have to say, I think getting hot pokers driven underneath your fingernails would hurt the same whether the interrogator is wearing the uniform of the SS or the IDF. Perhaps there is a distinction insofar as "torture" can be defined to be gratuitous, whereas "extreme interrogation" has an end. However, I don't think that that matches most peoples intuitions on the meaning of the word, nor does it seem to draw a bright line. To this extent, Mr. Frankenthaler is correct: Israel tortures.

But so what? The United States tortures right and left. When we don't want to torture we send people to the arab states that will do it for us (Syria, Egypt, ...). It isn't just Iran that has the monopoly on torture. Europeans historically tortured. If you think they are more enlightened now I would issue the same challenge that Professor Dershowitz did: name a country with similar internal security threats as Israel that has protected liberty as well as Israel has.

What's worse, Mr. Frankenthaler even grants this point in his letter. He claims that Dershowitz continues to "misunderstand the 1999 Israeli Supreme Court Decision in Public Committee Against Torture v. Israel as having 'abolished' torture in Israel. Although the judgment resulted in a significant reduction of violence against the interrogated individuals it did not categorically abolish torture." Okay! So Israel has gotten rid of the vast majority of times it tortured!

The rest of the letter continues the analogy between Israel and the Gestapo. Look, this isn't getting us anywhere. While I am willing to buy the argument that there is no significant difference in method between extreme interrogation and torture, there are a plethora of differences in the circumstances under which such torture arises and how it is overseen by the state. To ignore these as Mr. Frankenthaler does is to needlessly cloud the situation by slinging mud instead of actually trying to reduce torture through greater oversight and accountability. If we suppose a world in which Mr. Frankenthaler gets everything he wants and Israel (and the US, and Syria, and the UK, and France...) actually ban torture, the result would be even more torture, and even worse torture in a completely unaccountable system whenever the threat of terrorism arises. So, if Mr. Frankenthaler wants to stop torture, he should give up the fact twisting, name calling, and scare tactics and start trying to appreciate the complexities of the issue.

Anonymous said...

I don't see how it is "anti-Semitic" to criticize Israel for its policy. Nor is it "singling-out Israel". The fact is Israel is very different from other countries that violate human rights. Unlike most other countries that violate human rights, Israel is an industrialized nation and moreover it is a democracy. Surely, Israel, with its prosperity and enlightened form of government should be held to a higher standard than industrializing countries who are run by petty dictators.

Jason said...

Ah, the blogosphere, where anyone with an opinion can toss it up as "anonymous" so that they don't actually have to substantiate any of their claims.

The author of the above comment claims that criticizing Israel is not anti-semitic (I agree). The author then says that singling Israel out is not anti-semitic because Israel is singled out not because it is the world's only Jewish state but rather because "Israel is an industrialized nation and moreover it is a democracy" with "prosperity and [an] enlightened form of government."
This claim is simply preposterous.

Let's start with the least favorable case for Israel and say that its security situation in no way justifies it doing anything out of the ordinary and should be held to the same standards as other nations. Very well. The most prosperous nation in the world, the US, tortures. The "enlightened" nations of Europe torture. The democratic nation of Turkey works hard to ensure that Kurds will never achieve a homeland of their own and remain second class citizens. Israel is the only wealthy nation with a less than ideal human rights record? Please. Spare me the excuses.

But then let's really turn it up a notch. What other country on this earth faces the kinds of existential security threats that Israel does? None. Period. So, I reiterate from my first comment: name a country with similar internal security threats as Israel that has protected liberty as well as Israel has. Is terrorism a blank check for human rights violations? Absolutely not. But Israel has done a damn good job of doing a very delicate balancing act, something the US has repeatedly failed to do. Until anonymous can answer that question, all of these gestures towards Israel being a democratic nation are just feel-good excuses for anti-semitism.