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Contemplating a dangerous paradigm shift
Posted by: McQ on Monday, February 27, 2006

Last week a lot of people were remarking on the fact that Bill Bennett and Alan Deshowitz were agreeing on something. That something had to do with the belief held by both that the press was failing us in both its duties and responsibilities. I can’t say I disagree, having made that point recently myself.

But to me that agreement took a back seat to the article by Tony Blankley in which he agreed with Alan Dershowitz.

I know, a well known place is freezing over.
Next week a vastly important book will be published: "Preemption, A Knife That Cuts Both Ways" by Alan Dershowitz. Yes, that Alan Dershowitz: the very liberal civil libertarian, anti-capital punishment Harvard Law School professor. And but for my lack of his legal scholarship, there is nary a sentence in the book that I — a very conservative editor of the Washington Times, and former press secretary to Newt Gingrich — couldn't have written.

The premise of his book is that in this age of terror, there is a potential need for such devices as profiling, preventive detention, anticipatory mass inoculation, prior restraint of dangerous speech, targeted extrajudicial executions of terrorists and preemptive military action including full-scale preventive war.
Soak that in. Conservative Blankley and liberal Dershowitz are agreeing to a potential need for profiling, preventive detention, anticipatory mass inoculation, prior restraint of dangerous speech, targeted extrajudicial executions of terrorists and preemptive military action including full-scale preventive war.

Got that? If that doesn’t send chills down your spine, nothing will. Let me explain. While we, each of us, understand the need for some degree of some of those things being necessary, the question is who decides what is sufficient?

Obviously most of us agree that if we determine our greatest threat comes from male purple people who worship doorknobs, then perhaps it makes more sense to focus extra attention on male purple doorknob worshipers than some grandmother from Boise Idaho when she goes on her annual trip to see the grandkids in Detroit.

But one has to ask, given the history of governments in general, will government only apply such profiling in the proper areas and for the proper reasons? We know the need, but do we want to officially sanction it as a matter of law and policy?

How about prior restraint of dangerous speech? Who gets to decide what constitutes “dangerous speech”? Is that, given our history of free speech, a power you want to give government? After all there was a reason our founders insisted on a 1st Amendment, wasn’t there?

I can certainly see the assassination of confirmed terrorists as something I could agree with (given they’ve participated in terror campaigns against us) and would consider such action to be consistent with fighting a war. I can also agree as well that we may need to do something such as we did in Iraq, and launch a preemptive war. But not until there has been considerable and proper debate.
What, then, is the issue that causes a Dershowitz and Blankley to consider what most civil libertarians would consider extreme measures?

Quite simply the combination of weapons of mass destruction (WMD) and a suicidal enemy. What Dershowitz poses and Blankley seconds to counter that threat is a paradigm shift in jurisprudence. Consider this paragraph from the introduction of Dershowitz’s book:
"The shift from responding to past events to preventing future harms is part of one of the most significant but unnoticed trends in the world today. It challenges our traditional reliance on a model of human behavior that presupposes a rational person capable of being deterred by the threat of punishment. The classic theory of deterrence postulates a calculating evildoer who can evaluate the cost-benefits of proposed actions and will act — and forbear from acting — on the basis of these calculations. It also presupposes society's ability (and willingness) to withstand the blows we seek to deter and to use the visible punishment of those blows as threats capable of deterring future harms. These assumptions are now being widely questioned as the threat of weapons of mass destruction in the hands of suicide terrorists becomes more realistic and as our ability to deter such harms by classic rational cost-benefit threats and promises becomes less realistic."
Dershowitz postulates that WMDs force us to reassess our “classic theory of deterrence”. Can we afford, in the era of cheap, easy to make and easy to acquire WMDs and suicide bombers, the luxury of assuming the rational actor model will work anymore? And if not, what are we left with in terms of protecting ourselves.
Yet, such policies conflict with traditional concepts of civil liberties, human rights, criminal justice, national security, foreign policy and international law He shrewdly observes that historically, nations — including democracies — have resorted to such deviations from law and custom out of necessity. But that it has all been ad hoc, secret or deceptive. Prof. Dershowitz argues that now, rather, we need to begin to develop an honest jurisprudence of prevention to legally regulate such mechanisms. It is better, he argues, to democratically decide now, before the next disaster, this new jurisprudence — the rules by which we will take these necessary actions.
They don’t just “conflict with” traditional concepts of civil liberties, justice, law and human rights, in many cases they would destroy them. What Dershowitz and Blankley are proposing is dangerous since it conceptually sounds good to those who are afraid of terrorists and WMDs and willing to trade liberty for security. And Dershowitz and Blankley certainly make it sound appealing to consider dramatic changes in traditional Anglo-American jurisprudence to accommodate the building fear that WMD capable suicide bombers instill in a population.
To see the difference between traditional Anglo-American criminal jurisprudence and his proposed jurisprudence of prevention, he raises the great maxim of criminal law: better that ten guilty go free, than one innocent be wrongly convicted. That principle led our law to require proof beyond a reasonable doubt before conviction in criminal trials. Most of us agree with that standard.

But then Prof. Dershowitz updates the maxim thusly: "Is it better for ten possibly preventable terrorist attacks to occur than for one possibly innocent suspect to be preventively detained?" I would hunch that most people would not be willing to accept ten September 11th attacks (30,000 dead) in order to protect one innocent suspect from being locked up and questioned for a while.
If only it were that simple. If only it were a matter of just inconveniencing that one innocent suspect for while. If only we could be sure that loosening the traditional standards in place for generations would be limited to such matters of inconvenience. But governments, by their very nature, have a tendency to push limits, sometimes rather hard. And at other times they simply ignore them, especially when those limits exist in legal gray areas. Any latitude assumed is latitude which will be taken.

We’re witnessing any number of those sorts of fights today. The NSA wiretap argument is a perfect example, as well as the debate on torture and the detainees at Guantanamo.

On the other hand, Dershowitz has a point when he makes the case that being so restrained by our present system that we can’t effectively protect our people in an era of mass casualty threats. It is a real and pressing dilemma, and one that we’re having trouble addressing at the moment.
Is it possible to go beyond such gut instincts and ad hoc decision making during a crises, and begin to develop a thoughtful set of standards for conduct in this dangerous new world? I don't know.

As Prof. Dershowitz observes, a jurisprudence develops slowly in response to generations and centuries of adjudicated events. But to the extent we recognize the need for it and start thinking systematically, to that extent we won't be completely hostage to the whim and discretion of a few men at moments of extreme stress.

At the minimum, an early effort at a jurisprudence of prevention would at least help in defining events. Consider the long and fruitless recent debate about the imminence of the danger from Saddam Hussein's Iraq, or the current debate on Iran's possible nuclear weapons. Under traditional international law standards they are both classic non-imminent threat situations: "early stage acquisition of weapons of mass destruction by a state presumed to be hostile."

But as Dershowitz points out, while the threat itself is not imminent, "the opportunity to prevent the threat will soon pass." Once they have the weapons it is too late.
The threat they both point too is very real, and certainly, WMDs do change the traditional equation, especially when the possibility exists for them to be in the hands of enemies of this country who have no regard for their own or ours. It is a combination which is further hampered by the very traditions of jurisprudence which has guarded our freedom and liberty our founding.

Can we indeed find it in ourselves to consider trading liberty for security as that is surely the trade off any paradigm shift of this sort would demand. How else does one explain loosening the legal restraints to accommodate standards of jurisprudence which would allow deliberate profiling, suppression of “dangerous speech” and preventive detention..

Blankley’s key quote on the matter:
The new realities of unacceptable risk require new — and lower— standards of certainty before defensive action is permitted.
And here’s the dilemma. If we were to consider doing what Dershowitz suggests and Blankely condones, who will decide what constitutes an “unacceptable risk”? How would we define it? Who would decide how low the standards may be?

Why your government, of course.

No matter how carefully defined, legislated and monitored, the room for abuse is staggering. The very fabric of our liberty would be forever frayed and in danger of being destroyed. Experience, as well as history, has told us that once government is given a power as a matter of course, it very rarely gives it up and usually works diligently, instead, to expand it. These powers being contemplated are not powers liberty loving Americans want to grant any government with a monopoly on the use of force.
As we develop a jurisprudence of prevention, we increase the chance of justice and rationality being a bigger part of such crisis decisions that our presidents will be facing for the foreseeable future.

Dershowitz's sound, practical scholarship is commendable. But what I find heartening is the political fact that a prominent scholar of the left has finally entered into a constructive conversation about how to manage our inevitably dangerous WMD/terrorist infested future.
While that’s commendable and heartwarming (and I mean that facetiously) it is as dangerous as any WMD in my opinion. The points both Dershowitz and Blankley make are good and important points. No one can argue that the threat isn’t a completely different threat than we’ve ever faced. We’ve faced enemies with WMDs, but they fell under the ‘rational actor’ model of enemy. And we’ve faced suicidal enemies in the past, but none with WMDs. The potential here is to face both and that must indeed cause us to consider new methods of countering that very potent threat.

But a permanent loss of liberty in trade for slightly enhanced security? No thanks. Giving up a little liberty now will see it gone for ever, and, also risk even more being taken in the future. And there is no assurance it will stop the threat to our safety.

Should we consider taking temporary steps in certain areas which don’t threaten our liberty but would enhance our security. By all means. If, for instance, we’re not profiling middle eastern men as potential attackers, then we’re simply not doing what we should do, given the origins of the vast majority of our attackers. But do we want to go as far as sanctioning preventive detention or the suppression of “dangerous speech?

No. At least I don’t. Let’s free our law enforcement and military to build the proper cases necessary to lawfully detain those we deem a threat. Give them the latitude they need, build the system so it is fast and responsive to those needs. But to just let them round up people on the arbitrary suspicion they may be a threat? I can’t condone that.

While the ideas Dershowitz and Blankley toss out there may be appealing to our security needs, they should offend our sense of liberty. September 11th changed the world for all of us and we’ve not felt safe since. But that’s because we’ve fallen into the trap of using our feelings as a gauge for reality. We had no fear of such things on Sept. 10th and felt massive fear on Sept. 12th. But, in reality, nothing much had changed between the 10th and the 12th in terms of the level or existence of the threat. The threat that existed on the 10th still existed on the 12th. The difference was, we were now aware of it.

The question then is do we, out of fear, abandon our liberty and our tradition of Anglo-American jurisprudence in hope of stemming the threat, or in the face of that fear, should we reaffirm our allegiance to our heritage of liberty and Anglo-American jurisprudence because that is who we are?
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Previous Comments to this Post 

Maybe if we spent a little more effort keeping our borders secure, we can continue to cut internal slack.
Written By: Mark A. Flacy
URL: http://
I don’t know that this is a new phenomenom or not. I think the liberal "proactive vs reactive" concept began during the 70’s in response to the get tough on crime movement. Of course the liberals meant to go into the inner cities with pockets full of taxpayer cash and remedy the root causes of crime. The tough on crime advocates meant to go into the inner cities and take out the evil doers. That we have, as Americans, been subject to this concept for quite awhile has conditioned us to apply it to the world rather than cities. I think you still see the same arguments in place today. The liberal arguement being part of "why do they (the Islamists) hate us" and the root causes of their dissatisfaction. Dershowitz was part of that coalition. Now that the criminals are shooting larger guns he may be shifting to the tough on crime side. The fact that this has been happening in the U.S. for so long only makes the transition easier as not really a new concept. Well, anyway something like that.
Written By: tom scott
URL: http://
Whatever the policy, as long as Congress has a hand in crafting it, I’ll be OK with it.

This topic evokes a strange double-standard from the progressive press. The transnationalist media’s reporting of this issue has taken on decidedly nationalistic overtones.

We have been issuing executive death-sentences on terrorists in foreign lands without domestic judicial review or "due-process" for the last four years. But it was really when progressives sensed there might be a domestic dimension to executive "spying abuses" that they took to the towers.

I think the Lefty press is finally waking up to the fact that the liberal practice of their craft requires the protections that the robust nation-state provides.
Written By: Steve
URL: http://
Mr. Dershowitz seriously suggested that warrants for torture become part of our legal procedures for the war on terror. He didn’t mean coerced naked pile-ons or panties over the head either, he was referring to blowtorches and pliers. He already has no credibility with me, and what credibility this new paradigm may have, it deserves to earn it with his torture warrant idea hung around his and its neck like an albatross. He already wants to go too far, much farther than the Bush administration has, and he wants it to be a permamnent change in our society.

The other issue I have is that there will be no restricting this "evolution" of our civil law enforcment practices to fighting terrorism. Attempts to expand the essentially war powers related Patriot Act to drug enforcement have barely been fought off already.

It is not conservative to continue to do what doesn’t work, as the Democrats essentially wish us to do WRT GWOT. It is also not conservative to take such a leap towards what is known to be lamentable—what cannot have the effect intended as well—as Blankely has proposed.

It is possible that if maximally successful, the GWOT will prevent all but a handful of western cities from having their hearts torn out by nuclear fire. Nothing can prevent it happening to some, it inevitable that some cities will burn.

What the GWOT is intended to do is make Islamic societies and nations unlikely to be wombs for the sort os events seen the day of 9/11, as opposed to how they are, if they could pull off one 9/11 a day, they would do it.

That we lose 1% of our GDP every ten to twenty years or so to terrorism in acceptable to me if we keep our traditional peacetime freedoms.

Yours, TDP, ml, msl, & pfpp
Written By: Tom Perkins
URL: http://
Is there any doubt that any enhancement of government power will be abused? Eminent domain, "no knock" warrants, RICO, civil asset forfeiture, etc. All these "limited" increases in government power have been and continue to be abused, in spite of the promises of those who promoted them. Did they solve the problems they were designed to? No.
Perhaps we should examine the results of a jurisprudence of prevention in countries that already have it.
Written By: timactual
URL: http://
Perhaps we should examine the results of a jurisprudence of prevention in countries that already have it. Written By: timactual

Just re-examine life in the American colonies pre-1776. They wrote the Bill of Rights from real experience.
Written By: root
URL: http://

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