New book examines legal questions of preemptive war
By Jason Szep
BOSTON (Reuters) - If U.S. officials overhear talk of a planned murder or rape while eavesdropping on a telephone call under President George W. Bush's domestic spying program, what can they do -- within the law -- to stop it?
"We don't know," said Harvard law professor and celebrated defense lawyer Alan M. Dershowitz. "Plainly we would not want them to ignore it" but no laws have been written to govern how the information can be used in court, he said.
"We wouldn't even know where to look to find the law because there is no law," Dershowitz, one of the nation's best-known defenders of civil rights, told Reuters in an interview.
In his new book, "Preemption: A Knife That Cuts Both Ways"
, Dershowitz supports preventive counter-terrorism measures -- from wiretapping to profiling, mass inoculation, targeted extrajudicial killings and preemptive military action -- to head off attacks by suicide bomber and other terrorists.But he says the Bush administration is bending the rules by failing to draw legal boundaries around those measures. Never shy of controversy, Dershowitz is sending each U.S. Senator and Congressman a copy of his book
to spur debate on the issue."I want to make sure we play by the rules," said Dershowitz, who has successfully defended some of America's most unpopular defendants including O.J. Simpson in his 1994 murder trial.
"The first thing you have to do is get an acceptable jurisprudence indicating when it is appropriate to do these things and when it's appropriate not to do these things.
"We also have to demand accountability, to require the government to keep records of every single call, e-mail and fax that they monitor -- how many innocent people's conversations are being overheard and how many acts of terrorism have in fact been prevented," he said.
"We just have no idea what the answers are to those questions at this point in time," said Dershowitz, 67, who joined Harvard University's faculty at age 25 and became the school's youngest full law professor at age 28.
PREEMPTIVE DETENTION, FREE SPEECH
Democrats and some Republicans have also questioned the legality of the Bush administration spying program that has intercepted international e-mails and phone calls of U.S. residents in recent years without court warrants, and whether it violates the constitutional right to privacy.
The White House and its Republican allies in Congress contend Bush had authority to order the program under the Constitution and a 2001 congressional authorization to use military force against Osama bin Laden's al Qaeda.
Dershowitz agrees with the use of preemption against threats like al Qaeda, including detention, preemptive restraint of free speech and even preemptive war with Iran if it appears to be arming itself with nuclear weapons.
"Obviously it is not unreasonable to act preemptively because you can't use a deterrent theory against suicide bombers. You can't tell them if we catch you, we are going to kill you. They welcome death. So you have to act preemptively, that is not unreasonable," he said.
"But it is unreasonable to monitor hundreds of thousands of conversations. It might not be unreasonable to monitor hundreds of conversations. It's a matter of degree. That's what a civilized society always does: it creates matters of degree, it draws lines and that is what we have been failing to do."
Dershowitz, who opposed the war in Iraq which he considers less dangerous than Iran, is already working on his next book: a look at whether the United States has abused the U.S. Constitutions's Fifth Amendment right to not incriminate oneself in an investigation during its war on terrorism.
"We are changing the Fifth Amendment in a very dangerous way in the war on terrorism. We are now saying that it doesn't prevent us from coercing information it only prevents us from using that information in criminal trials. So it fits in very neatly to what I have done before," said Dershowitz, who has written nearly a book a year since he began teaching.