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Author Biography: Alan M. Dershowitz, professor of law at Harvard Law School and America's most renowned criminal defense and civil liberties attorney, is the best-selling author of Supreme Injustice, Chutzpah, Reversal of Fortune, Reasonable Doubts, and many other books.
"[Terrorists] need to know that these
crimes only hurt their cause."
-President George W. Bush,
after learning that Islamic terrorists
had murdered reporter Daniel Pearl
"The first several hijackings
[accomplished more for the Palestinian cause]
than twenty years of pleading
at the United Nations."
-Palestine Liberation Organization's
chief observer at the United Nations
Although state-sponsored global terrorism is a relatively new phenomenon, and is in some ways quite different from other evils previously confronted, it is still subject to the basic rules of human nature and experience that teach us how to reduce the frequency and severity of harmful conduct. This chapter sets out some fundamental rules of deterring crime in general and then shows how these rules relate to terrorism in particular. The next chapter shows how the international community, and especially the United Nations and our European allies, have refused to follow these obvious rules since at least 1968, and in fact have deliberately violated them, thereby encouraging increased resort to terrorism, both in frequency and in severity.
How to Stop Harmful Conduct
For thousands of years, human societies have sought to reduce the frequency and severity of such harms as murder, robbery, and rape. Various techniques for dealing with such crimes have evolved over time. Broadly defined, these techniques have had much in common across societies and over time. They may be outlined in the following familiar terms.
The first technique is to ensure that the potential criminal understands that he has far more to lose than to gain from committing the crime. This serves to disincentivize the act, or deter the actor, by sending a clear and unequivocal message: not only will you not benefit from the act, but if you are caught doing it you will be severely disadvantaged. (A disincentive seeks to eliminate the benefit seen as an incentive by the offenders. A deterrent seeks to impose a negative cost on them and their cause.) A useful example of this mechanism is the treble or punitive damage remedy, which disgorges all gains from the person who secured them improperly and imposes a punitive fine.
The second technique is to incapacitate those who would carry out the actions by imprisoning them, killing them, keeping them away from the places they wish to target, or otherwise making it impossible for them to be in a position to undertake the undesirable actions. A useful metaphor for incapacitation is the zoo, where wild animals are kept behind bars. We are not seeking to change the animal's propensities but are simply erecting an impermeable barrier between it and us.
A third technique is to persuade the actor not to undertake the action, by rehabilitating, reeducating, or shaming him, convincing him that the action is wrong. A good example of this mechanism is requiring drunken drivers to attend classes or enter programs designed to influence behavior.
Another traditional technique is proactive prevention. The word "prevention" carries broad implications, including eliminating or reducing the causes of crime, such as poverty. I am using "prevention" in the more specific sense of gathering intelligence about plans or impending crimes. Secret service agencies throughout the world plant spies in terrorist organizations to gather such information. They also bribe or extort actual members of these organizations to serve as double agents. Sometimes they engage in scams or stings calculated to get the criminals to commit the crimes under controlled situations (such as selling drugs to an undercover agent, or hiring a hit man who turns out to be a government agent). Intelligence agencies also gather information by means of high technology, such as satellite photography, electronic intercepts, and the like. A useful metaphor for this mechanism is building a trap for a wolf that is eating a farmer's sheep and baiting it with a dead animal.
There are clearly overlaps among these methods. The death penalty, for example, incapacitates and punishes the specific offender (this is called "specific deterrence") while also, it is hoped, deterring other potential offenders (this is called "general deterrence"). The age-old rule disallowing a murderer to inherit money from his victim disincentivizes killing for those who would do it in order to inherit more quickly. Imprisonment incapacitates (at least during the period of confinement, and at least against those on the other side of the bars) while also deterring both the offender and others. Even the mandatory class or program deters as well as rehabilitates (and may even incapacitate at least during time the person is in the program). Sometimes these mechanisms conflict with one another. Although imprisonment incapacitates during the period of confinement, it may increase the likelihood of recidivism among some inmates by exposing them to a criminal culture, even as it decreases that likelihood among others by demonstrating the horrors of prison. Paying double agents may help prevent some crime, but it may also promote others at the same time.
The goal of removing all positive incentives (disincentivizing) while also imposing negative consequences (deterring) is to send the following powerful message to any person or group contemplating the commission of a harmful act: you, your group, your family, and everything you hold dear will be considerably worse off if you commit the prohibited act than if you forbear from committing it. That was the intent of the following statement made by President Bush on April 4, 2002: "I call on the Palestinian people, the Palestinian Authority and our friends in the Arab world to join us in delivering a clear message to terrorists. Blowing yourself up does not help the Palestinian cause. To the contrary, suicide bombing missions could well blow up the best and only hope for a Palestinian state." Anything that mutes this message, or undercuts it, diminishes the impact of this age-old technique for reducing the frequency and severity of harmful conduct. For example, if a bank robber's family (or the cause he was robbing for) were allowed to keep the proceeds of the robbery, the deterrent message would be decidedly mixed, even if the robber himself is caught and imprisoned.
The major difference between the disincentive-deterrent approach, on the one hand, and the incapacitation approach on the other is that deterrence relies on a rational calculus-a cost-benefit analysis-by those contemplating the harmful act. Incapacitation relies exclusively on the physical impossibility of certain acts being carried out by people who are confined, exiled, or killed. Again, think of a zoo as incapacitating the wild animals, and think of an animal trainer who threatens the whip and promises the food as more akin to the disincentive-deterrent model. Or think of the hospital for the criminally insane as incapacitating a dangerous person who cannot be deterred by the threat of future punishment, while at the same time trying to reduce his propensity toward violence by treating his aggressive mental condition.
In addition to these techniques of harm reduction, all of which focus directly on the behavior in question, there are also some "softer" approaches that tend to be oriented more toward the longer term and have a more subtle impact on the harmful conduct. This kind of approach includes such efforts as education, positive reinforcement, negative reinforcement, religious indoctrination, and so on.
In the next chapter I will focus on how the international community not only failed to disincentivize terrorism but went so far as to incentivize it, by rewarding it rather than punishing it. In subsequent chapters, I will discuss the other techniques.
Can Terrorism Be Deterred?
The theory of deterrence-reducing the frequency of an undesirable action by threatening and inflicting pain on those contemplating the action-operates along a continuum. At one end of the continuum is the calculating state. The conventional theory of nuclear deterrence, for example, hypothesizes a state, whose actions are rationally determined by self-interest, acting so as to maximize this self-interest and to minimize negative consequences. The theory depends largely upon actors making calculations and counter-calculations based on each other's contemplated actions and reactions. Near the other end of the continuum are largely futile attempts to deter impulsive actions by irrational actors. These actions may be caused by such factors as passion, impulse, and mental illness. For the most part even the most passionate, impulsive, and mentally ill actors are capable of being deterred from taking some actions, under some circumstances, at some points in time, but the impact of long-delayed punishment is likely to be minimal. At a point even farther along this continuum are suicidal actors, although whether they can ever be deterred is a question that is rarely considered in deterrence theory. We shall return to this complex matter later.
Between the extremes of this continuum lies a wide range of actors and actions that are more or less subject to deterrence, based on a wide variety of factors. In the context of the kind of terrorism I am focusing on in this book, there is also a long continuum whose terminal points parallel those on the more conventional continuum. Some terrorists are exquisite calculators and will engage in terrorism only if the benefits (as defined by them) outweigh the costs (also as defined by them). As George Habash, the leader of the Popular Front for the Liberation of Palestine, told a reporter:
The main point is to select targets where success is
100% assured. To harass, to upset, to work on the
nerves through unexpected small damages.... This is a
thinking man's game. Especially when one is as poor as
the Popular Front is. It would be silly for us to even
think of waging a regular war; imperialism is too powerful
and Israel is too strong. The only way to destroy
them is to give a little blow here, a little blow there; to
advance step by step, inch by inch, for years, for
decades, with determination, doggedness, patience. And
we will continue our present strategy. It's a smart one,
To the extent that terrorism is "an entirely rational choice" and "a calculated move in a political game"-as some have concluded-it should be subject to the usual rules of deterrence theory. As I will show later, however, not all terrorism is the same, and some may be subject to somewhat different calculations. The benefits contemplated by some terrorists may vary, both in kind and in degree, from those contemplated by the more conventional criminal or by other terrorists. Moreover, the costs may also be defined and calibrated differently. The 1972 terrorist attacks against the Israeli Olympic team in Munich, for example, might be considered an absolute failure according to conventional standards of success. The demands of the terrorists were rejected, and nearly all of the terrorists were killed, either on the spot or thereafter. In the short term, world opinion quickly turned against the terrorists and those who sponsored them. But, as I will show, in the intermediate and long term, the world's reaction to the Munich massacre served the interests of the terrorists to such an extraordinary degree that it encouraged many future acts of terrorism, both by Palestinians and by other aggrieved groups incentivized by the success of this apparent "failure."
Terrorism Is Different-But Not That Different
The kind of terrorism we are talking about is different in many respects from other crimes such as murder, rape, and robbery. The difference is that terrorism is generally more calculated, more premeditated, and more goal-oriented than impulsive crimes or crimes of passion. Criminal justice expert Philip Heymann has observed:
As a crime, terrorism is different. Most crimes are the product of greed, anger, jealousy, or the desire for domination, respect, or position in a group, and not of any desire to "improve" the state of the world or of a particular nation. Most crimes do not involve-as part of the plan for accomplishing their objectives-trying to change the occupants of government positions, their actions, or the basic structures and ideology of a nation. Some would argue that violence carried out for political purposes is more altruistic; others would vigorously deny that. But all would agree that political violence is different from ordinary crime, in that it is planned to force changes in government actions, people, structure, or even ideology as a means to whatever ends the perpetrators are seeking with whatever motivations drive them towards those ends. It is in that sense that the U.S. State Department definition says that the violence is usually "perpetrated for political reasons."
Terrorism-at least of the kind described by Heymann-is thus more, not less, subject to disincentive and deterrence techniques than most ordinary crimes. To be sure, some acts of terrorism are revenge-driven and impulsive, but most are carefully calculated to achieve a goal. Sometimes the goal will be specific and immediate, while other times it may be more general, long term, and apocalyptic. But whatever the object, if it becomes clear that it will be disserved by terrorism-that the cause will be worse off-then it will be only a matter of time until co-supporters of the cause turn against those who resort to terrorism. Without widespread support from within the cause they are seeking to promote, terrorists cannot long thrive. Certainly if there is widespread opposition to terrorism within the cause, it will soon dry up.
When we look at terrorism simply as a technique whose frequency and ferocity we seek to diminish-without necessarily making any moral judgments about particular terrorists or causes-certain conclusions seem beyond dispute. The first is that those who employ terrorism should always be worse off-by their own criteria-for having employed it than if they had not employed it. President Bush's rhetoric, that terrorist crimes "only hurt their cause," must become reality.
Not only must terrorism never be rewarded, the cause of those who employ it must be made-and must be seen to be made-worse off as a result of the terrorism than it would have been without it.
Excerpted from Why Terrorism Works by Alan M. Dershowitz Copyright © 2003 by Alan M. Dershowitz. Excerpted by permission.
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Posted June 5, 2008
The American civil rights lawyer Alan Dershowitz is a liberal who is also a defender of the US and Israeli states. This tension between rights and force puts him into contradictory postures. So, as a defender of the US and Israeli states, he writes of terrorism, ¿We must commit ourselves never to try to understand or eliminate its alleged root causes.¿ This is to assume that `our¿ cause and governments are perfectly just. But whether US and Israeli policies have helped to cause terrorism is a question of fact, and the evidence is that US policy towards the Middle East has helped to cause terrorism. It has also been unjust, which of course does not excuse the terrorists. To identify a policy as unjust does not entail support for righting the injustice through terrorism. So we can agree with him that ¿no cause ¿ no end ¿ justifies resort to the unacceptable means of terrorism.¿ He discusses torture mainly in his chapter 4, what we should do in the ticking bomb scenario, not in chapter 3, on what he imagines an amoral state would do, in which he gives just one page to discussing torture. Throughout chapter 4 he puts the case for allowing torture. He has a 7-page section on the case for, but no section on the case against. He writes of `numerous instances in which torture has produced self-proving, truthful information that was necessary to prevent harm to civilians¿. What on earth does `self-proving¿ mean? But when he tries to prove this crucial point of his argument, he cites just one case where, he writes, torture elicited `information that may have foiled plots ¿¿ So his best, his supposedly clinching, case rests on a mere `may have¿ - hardly conclusive proof. In the real world, there have been no examples of the `ticking bomb¿ scenario. If there had been, he would surely have cited them. He writes, ¿In Israel, the use of torture to prevent terrorism was not hypothetical it was very real and recurring. ¿ the extraordinarily rare situation of the hypothetical ticking bomb terrorist was serving as a moral, intellectual, and legal justification for a pervasive system of coercive interrogation.¿ This undermines his whole rationale for allowing limited, legalised torture ¿ it never stays limited. Yet despite recognising that Israel¿s illegal occupation of territories acquired by war has led to widespread and systematic torture, he persists in supporting the occupation and even calls for further collective punishments of the Palestinian people. He not only defends Israeli state terrorism but US state terrorism too, backing 'as do both John McCain and Barack Obama' the illegal US sanctions against Cuba, the main victim of US state terrorism. Cuba has suffered more than 40 years of terrorist attacks launched unchecked from Miami. Clearly, present Israeli policies are not working, but Dershowitz¿s solution is to urge Israel to be even harsher. But the more violence the Israeli government has used, the more violence its civilians have suffered. More Israelis were killed when Sharon was Prime Minister, 2001-6, than in the 1967 War. When 'not if' Dershowitz¿s policy does not work, will he admit its failure and accept what most of the rest of the world accepts ¿ a two-state solution? Or will he say that the repression should be even harsher? His proposals have no limits ¿ they promise only endless occupation, more wars and worse oppression. Similarly, attacking Iraq has made us all less secure and strengthened the radical Islamic terrorist movement. The US state¿s bellicose response to the 9/11 atrocity was not only dishonourable and unethical, given the cruel suffering it has inflicted on thousands of innocents, but also imprudent in the extreme because it was bound to produce as much hatred as fear, as much burning desire for reprisal as quaking docility. Dershowitz advocates some sensible policies to counter terrorism - effective border control systems, deportation of illegal immigrants and use of face recogWas this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.
Posted April 16, 2005
Dershowitz offers a unique perspective on terrorism. As the debate between national security and civil liberties takes place across the U.S., Dershowitz takes an in depth look at the history of terrorism. How historically we have reacted to it has contributed much to the current popularity of political violence. Whether or not you agree with all aspects of the book, it will make you think about terrorism in a new light, and force you to question and/or solidify your prior beliefs. For all interested in the politics of terrorism, this is a must read.Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.
Posted March 3, 2004
Mr. Dershowitz argument that torture is the lesser of two evils in the case of a captured suspected terrorist who has planted a ticking bomb to go off somewhere sounds theoretically plausible but in practice is a case where 'two wrongs don't make a right.' Torture is a world wide epidemic with as many as 12 million torture survivors from over 150 countries. There are approximately 400,000 torture survivors and possibly 30,000 suspected torturers living in the United States. The loss of innocent lives at the hand of terrorists is a tragic evil but does not justify use of torture under any circumstances.Was this review helpful? Yes NoThank you for your feedback. Report this reviewThank you, this review has been flagged.