Jurisprudence of Prevention? YOU BET!!!

[j2k4]

This struck me as a bit of seismic event, considering the source of Blankley's subject...Alan Dershowitz is considered one of this country's foremost civil-rights scholars, defenders and activists.

I have to say I join Blankley in seconding Dershowitz's thoughts completely.

That he of all people could have written this gives me hope. ;)

Feb 22, 2006
by Tony Blankley

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.

In his own words, from his Introduction: "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."

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.

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.

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, 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.

Or, a low price in innocent casualties might soon pass. For instance, in 1981 when Israel bombed Iraq's nuclear site at Osirak, if they had waited much longer the site would have been "radioactively hot" and massive innocent civilian casualties would have been incurred from radioactive releases. It is simply not enough anymore to say a country violates the norm by acting in its ultimate, but not imminent, self-defense. We need new standards for a new age.

The new realities of unacceptable risk require new -- and lower-- standards of certainty before defensive action is permitted.

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.

If such as Dershowitz and I can find common ground, there should be space there for a multitude. And from that common ground can grow a common plan for a common victory.

[j2k4]

I had assumed this would raise some hackles.

Or maybe you're all too lazy to read? :)

[Busyman]

I had assumed this would raise some hackles.

Or maybe you're all too lazy to read? :)
The last.

Perhaps if a summary was given......

I might read that and want the 5 minutes of my life back, cut-and-paste guy.

Don't worry someone will come along, read all o dat, retort, and then I'll be able to glean what the article is about and post if interested.

:)

[ilw]

Basic summary:

The threat of terrorism is the greatest threat america has ever faced so we must scrap all the niceties like civil liberties and launch preemptive strikes on anyone who looks at us funny.
Signed
Some harvard dude whose trousers get moist every time a car backfires.

[Busyman]

Basic summary:

The threat of terrorism is the greatest threat america has ever faced so we must scrap all the niceties like civil liberties and launch preemptive strikes on anyone who looks at us funny.
Signed
Some harvard dude whose trousers get moist every time a car backfires.
Saved me the 5 minutes. Thanks.:happy:

[JPaul]

Basic summary:

The threat of terrorism is the greatest threat america has ever faced so we must scrap all the niceties like civil liberties and launch preemptive strikes on anyone who looks at us funny.
Signed
Some harvard dude whose trousers get moist every time a car backfires.
So, do exactly what the terrorists want, you say.

[Tempestv]

Basic summary:

The threat of terrorism is the greatest threat america has ever faced so we must scrap all the niceties like civil liberties and launch preemptive strikes on anyone who looks at us funny.
Signed
Some harvard dude whose trousers get moist every time a car backfires.

in addition, he is an ultra liberal, which means that this bullshit is coming from the opposite side of the fence from where it usually comes from

[ilw]

Basic summary:

The threat of terrorism is the greatest threat america has ever faced so we must scrap all the niceties like civil liberties and launch preemptive strikes on anyone who looks at us funny.
Signed
Some harvard dude whose trousers get moist every time a car backfires.
So, do exactly what the terrorists want, you say.
I wouldn't go quite that far, i'd say its more like giving them some very encouraging feedback.

[j2k4]

...he is an ultra liberal, which means that this bullshit is coming from the opposite side of the fence from where it usually comes from

Tres significant.

Anyone who's ever had an earful of Dershowitz should also have raised eyebrows.

This warrants more than mere "gleaning", I think, unless you would choose to dismiss him as merely a Jewish lawyer, stricken with fear.

Do you think it is "bullshit", Tempestv?

[Biggles]

It seems a bit of an over-reaction to me. The terrorists from terrorland are a pain but they have neither the numbers nor the means to de-rail even a small Western country let alone our civilisation as we know it. Even if they could lay their hands on a nuclear warhead and manage to explode it in a city it would change nothing and the loss of life would simply harden our position even more.

The West is not at war, despite the rhetoric - we are nothing like on a war footing. Both the UK and the US are in the process of triming military size and reducing base numbers, not gearing up for war as we did in 39 (or 41). What we do have is increasingly authoritarian Governments and commentators trying to chip away at our own civil liberities in the guise of trying to protect us.

I think in the name of freedom we need to tell them to Feck Off!

[j2k4]

Even if they could lay their hands on a nuclear warhead and manage to explode it in a city it would change nothing and the loss of life would simply harden our position even more.

Why should we lose even one more life, Les?

Apart from that, witness the effect of the cartoon fiasco and tell me again about resolve...is not the press a main repository of freedom of speech?

They're shaking in their boots.

[Biggles]

The media and in pacticular the tabloid variety are bullies and their reaction is not particularly surprising. A lot of European media, in particular political magazines and the like, carried the cartoons and the good old Beeb showed them briefly when covering the story.

I agree, why lose one life but the means to protect life has to be sane. If we become so paranoid that joy goes from life then what is the point? The true victory over extremism is to live the lifes we want to lead with the absolute minimum of interference. Not impacting on our lives says more to them than battening down the hatches ever will.

[j2k4]

"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 certainly don't mind devoting some thought to this end, nor do I see a re-formulated and comprehensively preventive legal framework as coercive or oppressive.

I guess I see the point as a refinement of the current system, which is rendered rather slap-dash by events of the past few years.

[Biggles]

I have no problem with the legal minds tweaking the system to plug obvious gaps and loopholes.

I was just a bit less enthusiatic about some of the more Draconian measures. At the end of the day, gun boat diplomacy and assassinations are just that and they open the door to a free for all. To suggest that we might somehow dress up such actions in some legal finery seemed perverse to me.

[ilw]

"dangerous new world"
i think thats the crux of this, we have fundamentally different views of the world. Imo nothing has really changed and I feel perfectly safe.

[Biggles]

"dangerous new world"
i think thats the crux of this, we have fundamentally different views of the world. Imo nothing has really changed and I feel perfectly safe.

To be fair, neither do I.

I am much more concerned about whether the late winter has damaged any plants in my garden, which were fooled into thinking spring had arrived a couple of weeks ago.

I am far more likely to be run over by car (again :ermm: ) than blown up.

[JPaul]

One sometimes suspects that the great and the good love these opportunities to diminish the rights and freedoms of the hoi polloi.

Great and Good - "People, you might be killed to death by bad men who aren't like us. We need new powers to stop that happening. Unfortunately that may mean you have less freedom and less privacy, but that's a small price to pay."

Hoi Polloi - "Fair point, I want my children to be safe and clever people can do that for me. Anyone who disagrees is a commie."

Terrorists - "Result"

[ilw]

I sincerely hope the libs get a decent wedge of the seats next time round. Theres an awful lot of legislation thats been bundled through (prevention of terrorism act tops my list) that needs serious rework and i have zero faith in cameron or brown.

[Biggles]

I sincerely hope the libs get a decent wedge of the seats next time round. Theres an awful lot of legislation thats been bundled through (prevention of terrorism act tops my list) that needs serious rework and i have zero faith in cameron or brown.

I find Cameron confusing. The only plus point is so do many Conservatives.

A quote from Gorgeous George, who strangely was on Radio 2 the day after Archer, "Brown and Blair are two cheeks of the same arse" :) Although, I think Brown might be the fairer of the two cheeks (albeit limited competition)

The best we can hope for is a minority Government, with Ming the Merciless holding the balance.

The US go to the polls this year at some time. It will be interesting to see what happens.

[j2k4]

[QUOTE=ilw]
The US go to the polls this year at some time. It will be interesting to see what happens.

Yes-yes it will. :huh:

[Tempestv]

...he is an ultra liberal, which means that this bullshit is coming from the opposite side of the fence from where it usually comes from

Tres significant.

Anyone who's ever had an earful of Dershowitz should also have raised eyebrows.

This warrants more than mere "gleaning", I think, unless you would choose to dismiss him as merely a Jewish lawyer, stricken with fear.

Do you think it is "bullshit", Tempestv?

Yes-
1: there is no real way to compleatly stop a determined terrorist movement. Even if we went to marshal law, a determined terrorist movement could still do great damage. look at France in WWII. despight being ruled by german marshal law, the french resistance was still very successfull.
2: Does anyone else see what is so ironic about killing civil libertys in the name of freedom?

[Busyman]

Well many things are ass backwards in the administration anyway. They'll focus on bullshit that takes away civil liberties but ignore obvious fixes.

1. Water facilities should have stepped up security.

2. Nuclear reactors...stepped up security.

3. Airports- stepped up security....profiling accepted. Stop frisking old white grandmas.

4. Ports - since they are run by companies, have government oversight always. Scutinize who runs the motherfuckers and step up checking the containers even though all of them can't be checked. Pay money for more drive-thru scanners.

5. Mexican & Canadian borders - step up security. Fuck that running through shit (mostly Mexico). These could be potential terrorists. Start shooting folks with rubber bullets. Aim low. Do not attempt rescue of folks going the desert.

6. Trains - more security. Make it mirror airports.

7. Telephone - again, government oversight. I won't talk much about our vulnerabilites but they are there.

8. Student visas - if someone overstays, issue an arrest warrant and ship them TFO

9. Federal money to the states - fuck the days when the states spend the money on WTF they want as it relates to security. I've read states spending on dumb shit JUST BECAUSE THE MONEY WAS THERE. Get someone with some common sense to approve purchases before money is given.

Alaska got money to build a bridge that goes nowhere. The congresswoman for the state danced around the questions about it and basically said they deserved the money 'cause it was there to be had from the gubment.

Some shit got ta change.

There is some other stuff like welfare reform I'd like to see which would help eliminate this long standing semi-slave labor usage of hispanics.....which in turn has even pro-border security folks using hispanics as cheap labor.

[j2k4]

Well many things are ass backwards in the administration anyway. They'll focus on bullshit that takes away civil liberties but ignore obvious fixes.

1. Water facilities should have stepped up security.

2. Nuclear reactors...stepped up security.

3. Airports- stepped up security....profiling accepted. Stop frisking old white grandmas.

4. Ports - since they are run by companies, have government oversight always. Scutinize who runs the motherfuckers and step up checking the containers even though all of them can't be checked. Pay money for more drive-thru scanners.

5. Mexican & Canadian borders - step up security. Fuck that running through shit (mostly Mexico). These could be potential terrorists. Start shooting folks with rubber bullets. Aim low. Do not attempt rescue of folks going the desert.

6. Trains - more security. Make it mirror airports.

7. Telephone - again, government oversight. I won't talk much about our vulnerabilites but they are there.

8. Student visas - if someone overstays, issue an arrest warrant and ship them TFO

9. Federal money to the states - fuck the days when the states spend the money on WTF they want as it relates to security. I've read states spending on dumb shit JUST BECAUSE THE MONEY WAS THERE. Get someone with some common sense to approve purchases before money is given.

Alaska got money to build a bridge that goes nowhere. The congresswoman for the state danced around the questions about it and basically said they deserved the money 'cause it was there to be had from the gubment.

Some shit got ta change.

There is some other stuff like welfare reform I'd like to see which would help eliminate this long standing semi-slave labor usage of hispanics.....which in turn has even pro-border security folks using hispanics as cheap labor.

Agreed to all.

Why couldn't such measures be part of a re-thought regimen?

I think that's the point.

[j2k4]

1: there is no real way to compleatly stop a determined terrorist movement. Even if we went to marshal law, a determined terrorist movement could still do great damage. look at France in WWII. despight being ruled by german marshal law, the french resistance was still very successfull.
2: Does anyone else see what is so ironic about killing civil libertys in the name of freedom?

Your first is a given, however, you'll never know how man incidents shy of "completely" you are unless you try.

You don't think we'd be better off with a system comprehensively formulated to terrorist activity, rather than flailing about with clumsy "tools" like the Patriot Act?

As to your last, please describe for us the "lost" civil liberties you miss the most...

[Tempestv]

the patirot act is garbage, hiowever, in the artical, he talks about compleatly changing how we deal with justice in such a way as to put security ahead of freedom. if we devalue freedom, then what are we fighting for? what is the point of fighting for our freedom if we are going to make laws to take it away? as for civil libertys that have been removed, at many events, it is no longer leigal to protest outside of free speach zones that are often far away or well hidden from the actual event. just an example of the goverment trashing the bill of rights. I'm not saying that these freedoms we are losing will really make much differece to the average american right now, but over time, I beleve that we will notice the changes. however, the worse we allow it to get, the harder it will be to change when it gets really bad.

[ilw]

Why couldn't such measures be part of a re-thought regimen?

I think that's the point.
Its unnecessary atm. If a real war breaks out then I accept you'll have to weigh up civil liberties against security and make some hard decisions. However, i believe a key point is that these measures should only last for the duration of the conflict.
A war on terrorism doesn't have an end.

[Busyman]

Well many things are ass backwards in the administration anyway. They'll focus on bullshit that takes away civil liberties but ignore obvious fixes.

1. Water facilities should have stepped up security.

2. Nuclear reactors...stepped up security.

3. Airports- stepped up security....profiling accepted. Stop frisking old white grandmas.

4. Ports - since they are run by companies, have government oversight always. Scutinize who runs the motherfuckers and step up checking the containers even though all of them can't be checked. Pay money for more drive-thru scanners.

5. Mexican & Canadian borders - step up security. Fuck that running through shit (mostly Mexico). These could be potential terrorists. Start shooting folks with rubber bullets. Aim low. Do not attempt rescue of folks going the desert.

6. Trains - more security. Make it mirror airports.

7. Telephone - again, government oversight. I won't talk much about our vulnerabilites but they are there.

8. Student visas - if someone overstays, issue an arrest warrant and ship them TFO

9. Federal money to the states - fuck the days when the states spend the money on WTF they want as it relates to security. I've read states spending on dumb shit JUST BECAUSE THE MONEY WAS THERE. Get someone with some common sense to approve purchases before money is given.

Alaska got money to build a bridge that goes nowhere. The congresswoman for the state danced around the questions about it and basically said they deserved the money 'cause it was there to be had from the gubment.

Some shit got ta change.

There is some other stuff like welfare reform I'd like to see which would help eliminate this long standing semi-slave labor usage of hispanics.....which in turn has even pro-border security folks using hispanics as cheap labor.

Agreed to all.

Why couldn't such measures be part of a re-thought regimen?

I think that's the point.
Notice none have shit all to do with civil liberties (besides the travel) and notice none have been addressed properly.

[Busyman]

1: there is no real way to compleatly stop a determined terrorist movement. Even if we went to marshal law, a determined terrorist movement could still do great damage. look at France in WWII. despight being ruled by german marshal law, the french resistance was still very successfull.
2: Does anyone else see what is so ironic about killing civil libertys in the name of freedom?

Your first is a given, however, you'll never know how man incidents shy of "completely" you are unless you try.

You don't think we'd be better off with a system comprehensively formulated to terrorist activity, rather than flailing about with clumsy "tools" like the Patriot Act?

As to your last, please describe for us the "lost" civil liberties you miss the most...
....hurry up and wait.

[j2k4]

the patirot act is garbage, hiowever, in the artical, he talks about compleatly changing how we deal with justice in such a way as to put security ahead of freedom. if we devalue freedom, then what are we fighting for? what is the point of fighting for our freedom if we are going to make laws to take it away? as for civil libertys that have been removed, at many events, it is no longer leigal to protest outside of free speach zones that are often far away or well hidden from the actual event. just an example of the goverment trashing the bill of rights. I'm not saying that these freedoms we are losing will really make much differece to the average american right now, but over time, I beleve that we will notice the changes. however, the worse we allow it to get, the harder it will be to change when it gets really bad.

I don't draw the same conclusions you do, but I'll probably buy the book and see for myself.

Dershowitz hasn't changed his allegiance to civil rights, BTW; he's saying he thinks both ends can be accomplished.

Say what you want about him, he knows that subject cold.

[vidcc]

Airports- stepped up security....profiling accepted. Stop frisking old white grandmas.I strongly agree with the first, America should have done this after lockerbie but it didn't. Civil liberties had nothing to do with it, money had everything to do with it. Europe got their act together especially with unaccompanied baggage, the USA ignored this, especially domestic flights.
But to the "old white grandmas". As unlikely as it may sound they could be a threat. Drug smugglers use mules and once profiling is accepted as being well managed any potential hijacker could use grandma to get their "stuff" through security.
911 was planned. Imagine if a grandchild or other loved one was kidnapped and the ransom was to get stuff onto a plane. If we want to be secure we need to think outside the box as well as inside.
So profiling is essential but to stop the random searches of unlikely targets could be a mistake.

[Busyman]

Airports- stepped up security....profiling accepted. Stop frisking old white grandmas.I strongly agree with the first, America should have done this after lockerbie but it didn't. Civil liberties had nothing to do with it, money had everything to do with it. Europe got their act together especially with unaccompanied baggage, the USA ignored this, especially domestic flights.
But to the "old white grandmas". As unlikely as it may sound they could be a threat. Drug smugglers use mules and once profiling is accepted as being well managed any potential hijacker could use grandma to get their "stuff" through security.
911 was planned. Imagine if a grandchild or other loved one was kidnapped and the ransom was to get stuff onto a plane. If we want to be secure we need to think outside the box as well as inside.
So profiling is essential but to stop the random searches of unlikely targets could be a mistake.
I should have elaborated.

There is an attempt to show unbias with random searches. This may include ignoring an Arab and frisking an old white grandma in an effort to say, "Hey we frisk everybody."

It's based on show rather than suspicion. This is not to say that the only folk we have to worry are Arabs as un terroriste.

People sometimes forget that before 9/11, the worst terrorist strike on US soil was committed by white men.

[JPaul]

Airports- stepped up security....profiling accepted. Stop frisking old white grandmas.I strongly agree with the first, America should have done this after lockerbie but it didn't. Civil liberties had nothing to do with it, money had everything to do with it. Europe got their act together especially with unaccompanied baggage, the USA ignored this, especially domestic flights.
But to the "old white grandmas". As unlikely as it may sound they could be a threat. Drug smugglers use mules and once profiling is accepted as being well managed any potential hijacker could use grandma to get their "stuff" through security.
911 was planned. Imagine if a grandchild or other loved one was kidnapped and the ransom was to get stuff onto a plane. If we want to be secure we need to think outside the box as well as inside.
So profiling is essential but to stop the random searches of unlikely targets could be a mistake.


Re the rub down search issue, prior to the most recent changes security staff had to have a reason to give someone a rub down. e.g. a positive on the metal detector. Now they can carry one out as they see fit. I am regularly given the treatment and have no problem with it, it's to save my life and is a mino inconvenience.

I don't see that as a civil liberties problem, as I don't see the right to fly as being a fundamental human right.

[Barbarossa]

I usually opt to go through airport security dressed in a leotard now, in an attempt to avoid the excessive fondling, but it seems I'm getting fondled more often now than before!

It doesn't make sense. :no: