It's hard to forget that post-Sept. 11 Osama bin Laden video, the one where he and his comrades sit slouched around a room, beaming, almost giggling over their masterpiece terror act. It's as if even they couldn't believe they pulled it off. To them, Sept. 11 was a wild success.
But was it? What makes a terrorist act "successful"? The number of people killed? The grievances aired? The underlying goals achieved? In "Why Terrorism Works," celebrated defense attorney and controversial author Alan Dershowitz argues that the European community, the United Nations and the Vatican have rendered terrorism successful by rewarding terrorist leaders -- especially Palestinian terrorists. Dershowitz, a fervent supporter of Israel who this year argued in the Jerusalem Post that Israel should formally announce that it will destroy Palestinian villages in response to terror attacks, cites the fact that in 1974, PLO leader Yasser Arafat was invited to speak at the United Nations General Assembly shortly after a string of deadly Palestinian attacks on airlines and Israeli civilians, including children.
More significantly, Dershowitz suggests that without the achievements of Palestinian terrorism, Osama bin Laden might not have been so inspired to mastermind Sept. 11: "Global terrorism is thus a phenomenon largely of our own making." Dershowitz spoke to Salon from his summer home on Martha's Vineyard about how we reward terrorism, how we can stop it and why torture might be necessary to prevent further violence.
What do we refuse to recognize about terrorism?
There are two kinds of terrorism. Rational terrorism such as Palestinian terrorism and apocalyptic terrorism like Sept. 11. You have to distinguish between the two.
The first thing that we fail to recognize is that neither is caused by frustration, disenfranchisement or poverty. That is the big lie of terrorism. That may help explain how terrorist leaders can recruit people to blow themselves up, but it doesn't explain why the terrorist leaders who are wealthy, well-educated and calculating opt for the tactic of terrorism. And the reason they opt for the tactic of terrorism is because it has a proven track record of success, particularly certain kinds of terrorism, and particularly [because of the reaction of] the European community, the United Nations, the Vatican and some liberal churches.
And your main example of this "success" is Palestinian terrorism?
Well, that's the one that's worked. You can't think about terrorism without thinking about Palestinian terrorism. Palestinians began international terrorism. It started with them in 1968. They used it as the first resort, not the last resort. They invented it, they perfected it, they benefited from it and they taught the world how to use it and that it would be successful.
But how has it actually been successful? What have the Palestinians really gained? They don't have a state.
I'll give you an example. I gave a speech the other night in front of 500 people. I asked the people how many of them favored a Palestinian state living side by side with Israel. I think every person in the audience raised their hand. Then I asked how many people favor a Kurdish state. People looked at me like I was crazy. Then I asked how many people favored an Armenian state inside of Turkey. Same thing. Then I asked how many people favor an independent Tibet? A few hands went up. How many people favor an independent Basque state? How many people favor a Chechen state? People didn't know what I was talking about. Everybody knows of the plight of the Palestinian people. And yet when you put the Palestinian situation in comparison to, say, the Kurds, the Tibetans and the Armenians, those claims are certainly no greater. In fact, they're probably considerably lower; the Tibetans have been under occupation for a far longer time period, there are many, many more of them, and they've never been offered a state. The Palestinians were offered a state in 1948 and they turned it down. They could have had a state between 1948 and 1967 and they turned it down. They were offered a state at Camp David and they turned it down.
So when you do any kind of a moral comparison, you ask yourself, why has the Palestinian cause leapfrogged over all other causes? Why has the pope met with Arafat seven times and never met with a Kurdish leader or an Armenian leader? It's a reflection of the success of Palestinian terrorism. Now, that doesn't mean that it's the only way of achieving success; my own personal view is that the Palestinians would have actually achieved a state had they engaged in civil disobedience, Martin Luther King-like. But they opted for the tactic of terrorism and for them it has worked. In the book, I quote Palestinian leaders who say that they were surprised at how well it worked.
Is any kind of violence used by the Palestinians morally acceptable in your view?
Not against civilians, no. It's never acceptable to target civilians. It violates the Geneva Accords, it violates the international law of war and it violates all principles of morality. The idea of blowing up an American student at a cafeteria or an Israeli child in a day school is morally unacceptable. That's why we have soldiers. If they want to attack soldiers, that's a war.
So there is a difference between Palestinians attacking civilians and attacking soldiers?
Yes, I don't think they're justified in attacking soldiers either. But they are certainly not justified under any circumstance in attacking civilians.
In that case, do you think that terrorism can be viewed as "asymmetrical warfare"?
It's not asymmetrical warfare. Asymmetrical warfare is a euphemism for terrorism, just like collateral damage is a euphemism for killing innocent civilians. There's no such thing as asymmetrical warfare when you're targeting civilians. It's never justified and that's what we have to teach the world. Otherwise, anybody can talk about asymmetrical warfare. Let me put it this way: If Palestinian terrorism against civilians is justified, so is al-Qaida terrorism against the World Trade Center. There is no difference.
So can violence used by any colonized or oppressed group against its oppressors be justified?
No, we wouldn't justify African-Americans using violence against us in the 1950s. There are a hundred groups in the world that think they're colonized. Why do the Palestinians think that they're the only group that has the right to use terrorism? And remember: The Palestinians were offered a state in 1948 and they turned it down and engaged in terrorism. They slaughtered bunches of doctors and nurses on the way to Hadassah hospital instead of accepting a state which would have been twice as large as Israel. They had a state anytime they wanted between 1948 and 1967. They were offered a state in 2000. It's nonsense to think that they're a colonized country. They're a country that has used terrorism simply as an alternative to diplomacy. The Tibetans are a colonized people, the Kurds are a colonized people, the Armenians are a colonized people. If you had to rank the Palestinian case for statehood, it ranks 30th or 40th. It's a three on a scale of 10.
Is terror used by the Kurds justified? Or the terrorism used by the African National Congress [ANC]?
No, not against civilians. The terrorism used by the ANC was counterterrorism. The government of South Africa was using terrorism against innocent civilians and the ANC was using counterterrorism. But it was still wrong. Menachem Begin was wrong to use terrorism. [Before becoming Israel's prime minister in 1977, Begin led the Revisionist Movement and its terrorist-military wing, the IZL, and masterminded the most famous act of Jewish terrorism against the British, the bombing of the King David Hotel, which killed 91 people, including Jews and Arabs as well as British, in April 1946.] You can't justify killing civilians. Begin was killing adult English civil servants. That's still wrong.
Right, many people and historians consider Begin a terrorist. But how is he more respectable than Arafat?
There's no comparison between Begin and Arafat. Begin limited himself to killing British civil service people, whereas Arafat has killed babies and children. On a scale of 10, Arafat's an 11 and Begin's a three or four. Mandela's a three or four. The Irish Revolutionary Army is maybe a six.
But Arafat and the Palestinians are the worst. There's never been a group in the world as bad as Palestinian or Islamic terrorists, ever. There's never been a group that has a lower moral claim to doing what they're doing. One of the ironies, of course, is that because they've killed so many people, people have elevated their claim. People think they must have a more important claim than the Kurds and the Armenians because the Palestinians use global terrorism and the Kurds and the Armenians don't.
So you believe that all terror absolutely should be condemned?
Right, and it should never be rewarded. No government or government organization like the U.N. or the Vatican should ever embrace terrorists.
But you ranked those terrorists before, implying that some are worse than others. So are you saying they all should be punished, but punished according to how bad they are?
Yes, but according to how bad they are, not according to how just their cause is. Terrorists who kill innocent children, who indiscriminately kill ... for example, the PLO has killed Jews at prayer in Ankara, Turkey. Most of them weren't even Zionists. To me, the PLO is indistinguishable from the Ku Klux Klan in that they have both targeted children at prayer, and synagogues and churches. Yet everybody condemns the Klan as a terrorist organization, even though they were fighting for preservation of their way of life much the way that al-Qaida is fighting for preservation of its way of life. Mainstream African-Americans never used terrorism and we condemned those who did -- the Black Panthers and others.
Should counterterrorism be punished as well?
It's wrong but it's less wrong. Remember that the Jews, the French resistance, the Polish resistance, did not slaughter German children in response to the Holocaust. They had a higher moral standard.
It's a hazier argument -- what is counterterrorism and what isn't? Many groups could argue that another group is using terror against them.
Of course, and al-Qaida thinks that Americans are terrorists. You can always call your enemy a terrorist.
How should the international community have reacted to Palestinian terrorism? Should they never have negotiated with the Palestinians, despite their suffering and despite legitimate claims?
Start in the beginning. It's very simple how they should have reacted. The cause should have been set back, not pushed forward. They should have been kept out of the United Nations, the way the Kurds and the other groups were kept out. Look what happened just the other day. The Basque Party was kicked out of the Parliament in Spain as punishment because the Parliament believes that the Basque Party uses terrorism to further their ends. That is a very effective tactic: You use terrorism, you are not part of the political system.
You never, ever push their cause forward, and that's what we've done. The message that seems to have been sent after, particularly, Munich is "My God, they're willing to kill so many innocent people, they must have one hell of a cause." And that's a complete non sequitur. The Jews who were subject to the Holocaust didn't try to terrorize German babies or children; the French underground was very careful in who they directed their attacks at. There's a famous story about Russian revolutionaries who refused to throw a bomb because a child was in the car. But Palestinian terrorism has been promiscuous, going after the softest targets. Instead of saying that this is a cause that shows us that they deserve to be set back for using terrorism, we push them forward.
A lot of people would argue that, especially recently, Israel does retaliate. Israel punishes the Palestinians for their terrorist acts -- they demolish someone's home, they target specific terrorists, they shut down cities. But it hasn't stopped the violence at all. In fact, it's gotten worse.
I agree with that. That's not a particularly effective way of dealing with it.
So what are they doing wrong?
Israel doesn't have a lot of options. It's not the international community. Palestinian terrorism has to be stopped by the European community but because the European community hasn't done that, Israel is forced into a position where it has to retaliate. Israel always overreacts. Every democracy overreacts to terrorism. That's part of the ploy of terrorism.
Think about what happened after the Camp David accords failed. The Palestinians had been offered 93 percent or something of what they wanted and they turned it down and they were actually looked at very negatively by the European community. So they decided to play the terrorist card again. What happened? You blow up a couple of Israeli children and Israel's going to overreact. As soon as Israel overreacts, the European community hates Israel and begins to love the Palestinians. They're able to change the dynamic very quickly by using a tactic -- terrorism -- which they know will cause a democracy to overreact. The United States overreacts, Israel overreacts, Britain overreacts, Canada overreacted in 1970 -- you can always count on a democracy overreacting to terrorism and thereby getting the moral low ground in the world community because the world community then says it's a "cycle of violence." And they create this metaphor of moral equivalence.
I have to tell you the worst offender of moral equivalence has been the Vatican, which simply fails to understand the difference between democracies that fight back against terrorism and terrorists who target babies and children. I just can't imagine the pope, who met seven times with Arafat, being willing to meet seven times with other killers. It's sent a message: You can kill, you can blow up airplanes and you will still be greeted by the man who's supposed to represent the greatest international morality in the world.
It seems that the moral equivalence stems from the fact that Israel does kill civilians. Israel has an army, the Palestinians do not. More Palestinians have died.
Inevitably, but look. Compare what Jordan did: In one month, it murdered 20,000 Palestinians. Israel, in 55 years of fighting the Palestinians, has killed a tiny fraction of that 20,000, much of it in warfare, many of them guilty. The number of civilians killed by Israel is probably the smallest of any country in the modern world. Compare the number of civilians that Israel killed with the number of civilians the United States killed in Vietnam. Compare it to the number the United States killed in Hiroshima and Nagasaki. Compare it with the number that the British killed in the firebombing in Dresden. No country has ever fought a war, certainly in modern times, where fewer civilians have been killed. Israel has never, for example, bombed a city. It always sends in its troops to do it retail, like in Jenin, where 23 Israeli soldiers were killed, along with 50 or 60 Palestinians. When the police fight criminals, you certainly don't expect equivalence. You don't expect one policeman to be killed for every criminal. You expect that there would be a much, much higher rate of death among the criminals than there is among the policeman.
Now, I'm not defending Israel in everything it's done, obviously. It has overreacted. I was very much against sending that bomb to kill the terrorist in Gaza, which resulted in 14 innocent people being killed. It should never have been done. The first to say that was the Israeli government, which condemned the activity and had an investigation. It's terrible when a young child is killed in a crossfire. But when that happened, everybody in Israel, and most Americans, were crying. When a kid is deliberately killed in Israel, Palestinians cheer. That's a big difference morally. You can't have a moral equivalence there, and I think that's what causes terrorism. The moral success of Palestinian terrorism is what led Osama bin Laden to calculate that he will get tremendous support around the world for Sept. 11.
It's still hard to think that the Palestinians have been rewarded for terrorism. You don't think that Palestinian violence has ultimately hurt their cause for statehood by pushing legitimate political demands to the side?
No, I think it's brought them closer to it. Probably they miscalculated in the end. Had they accepted the Camp David accords, they would have used terrorism effectively to get themselves a state. They may now have overreacted. Remember that Arafat was Sharon's campaign manager; he got him elected. And so the terrorism resulted in a very tough regime being installed in Israel. So it may have backfired.
Do you believe in Palestinian statehood?
I do. I believe in Kurdish statehood. I believe in Tibetan statehood. I don't think that Palestinian statehood comes first.
Is there really a continuum from Palestinian terrorism to Sept. 11? Do you distinguish between Palestinian and Islamist terrorism? You do say that Palestinian terrorism is secular and limited to Israel, whereas --
It's changing now, of course, it's not all secular. Hamas is not secular and Hezbollah is not secular, but most of it is and it has a particular goal. They can turn it on and turn it off. It's rational in a perverse way.
Whereas Sept. 11 was apocalyptic terrorism. But why do you believe that Palestinian terrorism was the precedent for Sept. 11? You write that Sept. 11 was inevitable.
I have no question about that. I don't think anybody would have imagined doing Sept. 11 without the history of Palestinian terrorism behind them. Of course, Osama bin Laden invokes the Palestinians. We know who the people were who did Sept. 11 -- they were fairly well-educated, fairly well-off, mostly Saudis, few Egyptians, and they were apocalyptic and religious.
It's much harder to control that [than Palestinian terrorism] because you can't deter and disincentivize that. You can't say I'm setting back the cause; their cause is an otherworldly one. You can't persuade them that their reading of the Quran is wrong. We can't, anyway. The only thing we can do to prevent the occurrence of al-Qaida terrorism is to not try to give in to their demands or understand them, but to try to prevent them and disrupt them. There we have to use only military tactics.
Now that Palestinian terrorism has been going on for 35 years, and in your view, successfully, is it too late to implement this strategy and send the message that terrorism will no longer be rewarded?
No. This is how I think it should be done. It should be done by announcing that there will be a Palestinian state within, say, two or three years, and then say that timetable and the amount of land that they get will be a function of whether or not terrorism stops. You have to reward the ending of terrorism, rather than terrorism itself. That's what's going on in Northern Ireland. Gerry Adams has now said that they've ended terrorism. He's being rewarded for that. That's what happened in South Africa; Mandela ended terrorism. The Palestinian state has to be created as a reward for the end of terrorism. The United States, Israel and the European community should announce a Palestinian state in the year 2005 but [on the condition that] there has to be two consecutive years of no Palestinian Authority-sanctioned or sponsored terrorism.
Because you are more concerned with disabling the leaders, rather than the actual bombers.
Yes. If there is an act of terrorism, and it can be blamed on Arafat or the leadership, then the cause gets set back. I don't think it's too late at all.
Could you give an example of how Arafat was rewarded in the past? I think a lot of people might forget about how much terrorism was going on in the 1970s and 1980s, and how the world reacted.
Following horrible acts of terrorism, say, the Munich massacres, more countries began to recognize the Palestinians. By a certain point in time, the Palestinians after using terrorism had more countries recognizing them than Israel had recognizing them. It was working, it was an adjunct to their diplomatic efforts. The more violent their terrorism got, the more they were recognized. It's almost as if they frightened us into recognition. It was the European community, the United Nations -- which gave it observer status, unique to any other group seeking statehood -- the Vatican, other churches and even the Jewish community. Even Jews began to take Arafat very seriously as the result of the terrorism.
I'm not suggesting that you don't negotiate or that you don't make peace with your enemies. You make peace with the Mafia, too. The difference is that it's inconceivable that criminal groups would be welcomed around the world or given honorary degrees at universities. European intellectuals have shown adoring acceptance to Arafat, who we have on tape ordering the murder of American diplomats in the Sudan. We now know through Romanian intelligence that he signed off on the Munich massacre. We now know that he is the one who signed off on getting the boatload of arms that were intercepted from Iran just a year ago. And yet he continues to be adored, and that's the moral failing of the world today.
Obviously it's tremendously complicated. But I think one problem is that people feel that they have no other option. He's their leader. Who else are they going to negotiate with? The alternative would be worse.
That may be true. The point is not Arafat vs. anybody else. It's terrorism. The alternatives are terrible and that's because they set the rules of the game and made the alternatives terrible. But I think the alternative that has to be negotiated now is a Palestinian state in exchange for the end of terrorism.
The thing that many Israelis ask today is: What if? What if Israel were to do everything that the left and the European community and the Vatican and everybody else wants them to do -- give back all of the land captured in 1967, Jerusalem becomes their capitol -- what if after all that happens, terrorism gets worse? What would the world community expect Israel to do at that point? That's the question that the international community hasn't yet answered. We never will get peace until it is.
Are targeted assassinations a form of terrorism?
A targeted assassination is exactly the opposite of terrorism. Terrorism is untargeted assassination -- you just throw a bomb in a cafeteria and you get everybody. Targeted assassination is designed to be very precise and very specific. If you look at what happened in Gaza, obviously it can produce a disaster.
But "the Engineer" [Yahyah Ayash] is a perfect example. He was helping the Palestinians make bombs. He was the only one at the time who knew that tactic. He was using a cellphone, Israelis got to the cell phone company that was repairing his cellphone, put a bomb in the cell phone and the first time he picked it up, they blew his head off. Nobody was hurt but him.
But look, how can anybody like a system in which the killer is the judge, jury and executioner? The question is: compared to what? I favor targeted assassinations if four conditions are met. One: If you have somebody who beyond any doubt is a proven terrorist. Two: If beyond any doubt, that person is engaging in ongoing future terrorist acts. In other words, I'd never use it to punish for the past, the way Israel did after Munich. Three: There is no other conceivable way of getting at him. You can't arrest him. Four: Do it, only if you can do it with minimal collateral damage to other civilians. Then it's better than bombing. We're not talking about good, better, best. We're talking about bad, worse, worser, worst. On a scale of that, this is less than worst.
So has the United States rewarded terrorism in any way since Sept. 11?
No, after Sept. 11 we've gotten tough. Sept. 11 was a major wake-up call. But our mistake has been to say that we're gonna devote all of our attention to only certain terrorist groups, as if you can make the kinds of distinctions between international and more regional forms of terrorism. What the United States has to do, and I think we're moving toward it, is to say that terrorism as a tactic is simply unacceptable. We will never use terrorism or never, ever support a group that does.
We may come into conflict with that if we go into Iraq. One way or another we may be tempted to use Kurdish terrorism against Iraq and we have to say no to that. We have to say no to having alliances with any country that uses terrorism, and we have to be tougher on Saudi Arabia. We have to be tougher on Iran. The three governments that sponsor terrorism more than any other are Iran, Syria and Saudi Arabia. We're an ally of Saudi Arabia, we're trying to create alliances with Syria and we're trying to create alliances with Iran. Iraq is probably fourth on the list.
Probably the most controversial chapter in your book is about torture. A lot of people will be surprised to learn that in certain situations you believe that nonlethal torture might be necessary.
It might be necessary. I hope it isn't necessary. But if we ever had the ticking bomb case -- somebody who we believed had plans with others who were out free to blow up a major city or plant a nuclear bomb -- there's no question that the Americans would do everything they have to do to prevent it.
The question that I pose is: If you're going to have torture, is it worse to do it secretly without any accountability, or any subsequent knowledge -- the way the Filipinos, the Jordanians and the Egyptians do it? Or is it worse to have a degree of accountability and control over it, whether it be congressional and judicial? I'm ambivalent about it. I wrote that chapter to raise the question. But in the end, I had to come down to a solution, and I moderately disfavor doing it off the books and under the radar screen.
Well, first of all, are you assuming that this is going on anyway? You write that we know that the CIA uses torture.
Yes, we know the three countries that they use: Egypt, Jordan and the Philippines. We subcontract torture to them and they're very good at it. It's interesting that we think so highly of the Jordanian government under King Hussein, and that's where it was perfected. When Carlos the Jackal wouldn't turn, they got his mother and threatened to torture her. We would never do that, I don't think, but we're complicit.
Any reason why you use needles under the fingernails as your torture method of choice?
A reviewer criticized me for that. I purposely wanted to do that. I don't want to be vague. I wanted to come up with a tactic that can't possibly cause permanent physical harm but is excruciatingly painful. I agree with the reviewer; he's right when he said, "different strokes for different folks." For different people, different kinds of nonlethal torture might be more effective. Obviously, to the experts, having seen the movie "Marathon Man," drilling the tooth might be better than some. But the point I wanted to make is that torture is not being used as a way of producing death. It's been used as a way of simply causing excruciating pain.
Aren't there other forms of torture that would be less painful than that, that you might have considered?
But I want more painful. I want maximal pain, minimum lethality. You don't want it to be permanent, you don't want someone to be walking with a limp, but you want to cause the most excruciating, intense, immediate pain. Now, I didn't want to write about testicles, but that's what a lot of people use. I also wanted to be explicit because I didn't want to be squeamish about it. People have asked me whether I would do the torturing and my answer is, yes, I would if I thought it could save a city from being blown up.
But you believe in torture only for the ticking bomb terrorist scenario?
Only for the ticking bomb terrorist -- if the threat is immediate, clear and mega.
And you're advocating that we have warrants for this?
Some accountability. It needn't be a warrant. It can be judicial or legislative. Something that brings it up and makes sure that the American public sees how it works. It's not just done beneath the radar screen.
Regardless, there's a serious slippery slope here.
The slippery slope is that you're making a statement that there's no absolute right not to be tortured. My whole life has been devoted to trying to prove to my civil libertarian absolutist friends that there is no such thing as absolute rights, at all, period. I don't believe that there's any right that's absolute. Torture has always been used hypothetically as the example to prove it; [the legal theorist] Jeremy Bentham was the first to make that argument in the late 18th century, arguing that if you need to use torture to stop torture, it would be permissible.
Did your feelings about torture change after Sept. 11? Is it the sense that we have a new threat on our hands that's made you consider this?
It came home after Sept. 11. I wrote an article about it in 1988 in Israel in which I urged that the Israelis not use torture unless the chief justice of the Israeli supreme court is willing to sign off on it. After Sept. 11, that came home to me. So did national ID cards. I never thought about national ID cards but after Sept. 11, when it became clear that more than half of the hijackers had it made it through security because of false identification, I began to think hard about a national ID card of a very limited nature.
One thing you repeat in "Why Terrorism Works" is that despite the concessions we may have to make we must maintain a "feel of freedom." Can you explain what you mean by that? Because if President Bush started tossing around that phrase I'd be very skeptical. It sounds like a euphemism for "we're taking away your rights, but slowly."
It's very hard to define. I think it reflects mostly our willingness and our ability to criticize, our ability to walk free without accounting for ourselves. I think we still have that. As Potter Stewart once said about pornography, "I can't define it but I know it when I see it." I've been all over the world. I was in Czechoslovakia in the 1980s. It didn't have a feel of freedom. Then I crossed the border to Poland and it had it a little bit more. And then you go to Scandinavia and it has the complete feel of freedom. Israel has the feel of freedom but probably not if you're a Palestinian living there. Italy and Germany today have it and years ago they didn't. It's a sense of being able to go out on the street and know that somebody's not going to knock on your door in the middle of the night and say, "Your papers, please."
Do you think that feeling has been endangered at all since Sept. 11?
I felt a danger to the feel of freedom when Ashcroft proposed Operation TIPS. The notion that every time an electrician or a postman comes to my house -- and I live a very open life -- that someone [might be] snooping for the government gave me a very eerie idea about the feel of freedom.
But there are certain liberties that we will have to part with in some way.
Anonymity is the big one. We can't walk around with a bag over our heads.
Then how did you react to when the U.S. rounded up the 1,000 Muslim men?
I was pleased that it happened immediately for several reasons. One: We didn't round up 110,000 Arab-Americans and put them in concentration camps like we did to the Japanese after Pearl Harbor. Two: It seemed to me that we needed to freeze the situation for a few days to find out what these people knew and who they were. Then I began to get distressed after a week or two or three. And now I'm outraged that it's lasted so long without judicial review.
I have no problem with short-term detention based on probable cause. The things that outrage me are the secrecy, the numbers and the length. It's a matter of degree. But as I say in the book, the idea that "better that 10 guilty go free than one innocent be wrongly confined" is appropriate in the criminal justice system. It may not be appropriate in preventing acts of terrorism. It may be that it's better for 10 innocent people to be confined than for one terrorist to blow up a city.
How will this transform ideas and policy about racial and ethnic profiling?
My friend Larry David, the comedian who writes "Curb Your Enthusiasm," said to me, "What if they prove that a bald, Jewish guy blew up the World Trade Center?" He's bald and Jewish. He said, "I'd be willing to show them anything! Anything!" A lot of people feel that if you have nothing to hide, you shouldn't have anything to hide. I don't think that's right. Racial profiling is an evil in and of itself because it makes a general statement that all people who belong to a particular ethnic group are suspect.
But if you know that the only people who engage in suicide bombing are men, of a certain age and from a certain ethnic background, but you bother just for propriety's sake to also search the 80-year-old grandmother from Maine who's getting on the plane with her grandchildren, that's a waste. The one thing we know is that we don't have any experience of anybody blowing up an airplane with their grandchildren with them on the plane. Common sense can permit us not to have such a fetish, treating everybody exactly identically. It doesn't mean that everybody carrying a Quran should be subject to profiling.
One of the reasons that I think that a national ID card is better than ethnic profiling is because if you have a national ID card, you can avoid this stereotype. You have the card, you've gone through the process of getting it and you're not likely to be a hijacker if you have that card and it matches your retinal print.
And everyone, regardless of color and background, has one too.
And therefore everybody has a little bit of their anonymity diminished. I'd always rather have "we-we" compromises than "we-they" compromises. I worry about "we-they" compromises very much because there's no constituency to fight against it. This administration was willing to detain 1,000 people but they weren't willing to looking into their gun-purchase records for fear that the NRA would be upset. The administration sent a message that it's a greater violation of privacy to have your gun-purchase records looked into than to be detained in a prison. That's just crazy!
Is there anything else that particularly worries you about the Bush administration, things that have changed in the last year?
What worries me, of course, is the "wag the dog" scenario. As somebody said in Israel, Yasser Arafat has been Sharon's campaign manager. He never would have gotten elected without the terrorism. And the fear is that Osama bin Laden may become Bush's campaign manager for his reelection campaign because if not for Sept. 11 most political pollsters would tell you that his approval ratings, if the economy were as bad as it is, would be very low today. The fear is that Sept. 11 has become too important to the political fortunes of the current administration and there is a potential that they could abuse that. I haven't seen that happening yet, but the Iraqi scenario worries.
Just out of curiosity, you mention that you've defended terrorists. Who, and what was that like?
I defended the Jewish Defense League when they were a terrorist group in the 1970s. My first big case that I write about in "The Best Defense" was the defense of a man named Sheldon Seigel who was accused of making the bombs that were planted in Sol Hurok's office that ended up killing a young Jewish woman who worked there. I got to meet and see all the people in that terrorist organization and they're a bunch of zealots who believed their cause was above everything else. They did try to focus their terrorism on Soviet diplomats and people who traded with Soviet diplomats, but look, the only person they succeed in killing was a 20-something-year-old Jew, a woman who was just going to work. It instilled in me a tremendous hatred even when I was defending terrorists.
And then I was twice myself threatened by terrorists. Once when I was a professor, two North African students planned to assassinate me after I wrote an Op-Ed piece about Yasser Arafat. And then I was told I was on a list of prominent Jews who were targeted for assassination. After Sept. 11, we hired a security firm to check out everything around our house.