The View From 1776
Friday, February 24, 2006
Instead of more mush from wimpy Peanut Carter, another left-wing icon offers a solid proposal to chew on.
After a nauseating diet of ‘sensitivity’ from Senators Kerry and Kennedy, sprinkled with Peanut Carter’s encomiums for every left-wing terrorist from Castro and Hugo Chavez to Yasser Arafat and Hamas, Harvard Law School’s Alan Dershowitz advances a constructive proposal for new jurisprudence underlying our foreign policy. In the past a radical leftist, Professor Dershowitz appears to be edging away from Utopia and toward the clear-eyed understanding of human nature that informed the writers of our Constitution.
Carnegie-Mellon professor Tom Emerson alerted me to Tony Blankley’s editorial piece on soon-to-be-published “Preemption, A Knife That Cuts Both Ways” by Alan Dershowitz. Mr. Blankley writes:
“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 [Dershowitz’s] 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.”
Mr. Blankley continues: “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 10 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 Mr. 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 11 attacks (30,000 dead) in order to protect one innocent suspect from being locked up and questioned for a while.”
As I interpret Mr. Blankley, Professor Dershowitsz’s conclusion is that, because this new imperative of preemption and its related devices conflict with our traditional views about the Bill of Rights and moral conduct, we must develop new procedures of judicial due process that both permit preemptive action and preserve individual rights. We must get beyond the knee-jerk reactions of the ACLU that are aimed, not at preserving the rights of individuals against majority greed, but at promoting hedonistic license in the interests of liberal socialism. We must put aside jockeying for political advantage and focus on national survival.
Reality must be confronted before the next 9/11 and before Iran has nuclear weapons. That requires extensive and detailed debate in Congress and in the media that will give the public more than sound bites, slogans, and mud-slinging personal attacks against public officials and nominees.
People must come to understand that there is no way to survive by ignoring the threat of Islam’s savagery; they must understand that no amount of reason or materialistic foreign aid will deter people whose religion orders them to kill, pillage, and enslave all non-Muslims, people whose religion glorifies suicidal killing of defenseless women and children. Americans must face the inescapable reality that, if jihadists are not killed preemptively, they will kill us. There is no middle ground. Months of UN resolutions and weapons inspections merely grant more time for jihadists to prepare another 9/11.
Rather than looking to foreign countries’ laws to apply the maxims of socialistic class collectivism, as some Federal judges have advocated, we must develop our own, realistic ways to do what must be done to survive, yet protect the rights of individuals.
The key, I believe, lies in understanding the most fundamental purpose of government, and the purpose for which men enter political societies. As John Locke stated it in 1689 and Samuel Adams and others restated it in 1776, the essential purpose of government is to protect the private property rights of individuals from arbitrary confiscation by the sovereign state. Individuals who can control their own property can thereby control the purse-strings of government and ultimately resist any tyranny.
To that end, we must reverse the New Deal jurisprudence that subjugated Fifth Amendment rights to those of the First Amendment. We must again see, as the founders did, that political liberty cannot survive where the masses can take from the few, merely to satisfy envy and greed.
This high-wire act requires balancing, on the one hand, tax cuts to protect people’s property from the depredations of welfare-state entitlements and, on the other hand, the military costs of defending ourselves, with inflation waiting in the wings to devour us as it did under the Johnson and Nixon administrations.
If Republicans and Democrats foolishly ignore the real dangers already confronting us and continue to conceive the purpose of government to be the pork-barrel welfare-state, there is no hope for survival against Islamic jihad over the coming century of conflict.