In defence of the indefensible

Brendan O'Leary refutes a US law don who contemplates torturing terrorists.

The acknowledgements section at the close of this exploitation of the first anniversary of the massacres of September 11 concludes:

"Finally, my unbounded admiration for the victims of terrorism who have never even considered resorting to this brutal and inhuman tactic in revenge." This sentence will strike alert readers as highly illogical because it jars with the entire tenor of Alan Dershowitz's book. The proffered sentiment is also a misleading guide to his views: he appears to admire deeply many who have considered and implemented counter-terrorism.

This is a defence lawyer who toys with the merits of non-lethal torture for the greater good, ie to prevent massive terrorism - a needle inside the finger nails is discussed - while presenting himself as a doughty civil libertarian. Dershowitz is a cheerleader of Israeli policy-making in response to Palestinian political violence. His pre-publication endorsers include Benjamin Netanyahu and Shimon Peres - whom we are supposed to take as experts in the science of successful counter-terrorism. The dust-jacket has the blood-speckled title Why Terrorism Works separating photographs of a cheerily grinning Yasser Arafat and an enigmatically smiling Osama bin Laden. The marketing is not subtle. The target audience is American, Jewish and Israeli. Ed Koch, former New York mayor, urges "the CIA, FBI, the Mossad in Israel, and the targets - all of us - to read this book".

Those who do Koch's bidding will neither learn much about why terrorism works, nor gain a good policy manual. They will appreciate the prejudices of a significant phenomenon, the intellectual neo-conservative who is a double super-patriot of the US and Israel. As such, Dershowitz is representative of a significant stratum. He acts as their barrister, rather as the US often acts as Israel's attorney, ie with bias aforethought.

Presumably terrorism works when terrorists achieve both their declared short-run and long-run goals, but we must infer this deduction. Dershowitz tells us briefly for whom it has worked: "For Jews in British-controlled Palestine" - a refreshing moment of ethnic honesty on his part; "to some degree, for the Irish in British-controlled Northern Ireland"; and "for the Palestinians in the West Bank and Gaza". By contrast, he declares it has not worked for the Armenians, the Kurds, "and some other groups".

That Jewish terrorism in Palestine helped to establish the state of Israel occasions no remorse, but his cursory foray into success and failure stories is revealingly confused. Perhaps the Jewish terrorists who helped create Israel have had unambiguous successes (so far) in obtaining their declared objectives. But, by contrast, Irish republicans have not achieved a reunified Ireland despite 30 years of organised paramilitarism. And Palestinian militants have achieved neither statehood nor a reversal of "the catastrophe" of 1947-48. Dershowitz's named failures are not convincing either, because evaluation depends partly on the chosen time frame. Armenians have achieved statehood; the Kurds have achieved a highly restricted autonomy in north Iraq.

The difficulty of labelling these complex histories as successes or failures is obvious to anyone with a knowledge of comparative politics. All these cases constitute ethnic and national conflicts involving political violence both by state-holders and would-be state-makers over a contested homeland. In none of them is it easy to say, unequivocally, that terrorism worked or failed as intended - even Jewish terrorists may yet lose greater or Eretz Israel. Understanding terrorism in ethno-national conflicts requires seeing it as one of an array of coercive methods used by states and their challengers. It also requires appreciating that such conflicts are currently the most salient producers of domestic political violence - though they occasionally lead to violence with "global reach"; that they may be amenable to negotiation despite the tactical use of violence for positional advantage by one or more parties, and despite violence by spoilers; and that the use of terrorism, by both states and their challengers, waxes and wanes more to local than geo-political rhythms. International policy alone, contra Dershowitz, will not explain variations in the use or the success of terrorism.

And, as he sometimes recalls between bouts of amnesia, not all terrorism is of the same species. He barely considers state terrorism, nor how his injunctions might be taken advantage of by authoritarian regimes.

Terrorism in ethno-national conflicts may be rationally motivated, and its exponents may negotiate terms short of outright surrender to their demands. The concerns of groups engaged in such conflict are earthy: the homeland, national borders, citizenship, freedom from domination. The same is not true of the apocalyptic and ideological terrorists, such as al-Qaida. Significantly, Dershowitz spends little time on such "other groups", the motley array of ultra-leftists, anarchists, rightwing racists and religious fanatics who have failed to remould the world - the Baader-Meinhof Gang, the Red Brigades, the Weathermen, the US militiamen. Their defeat has owed much to police work and (flexible) policy, but most to these groups'

inherent weaknesses: their incapacity to galvanise wider constituencies because of their deranged utopianism, religious or otherwise. To be durable, let alone victorious, terrorists need meaningful causes, feasible remedies and support in their constituencies. That is far more likely in conditions of ethnic and national conflict. Policy should be sensitive to this distinction.

Dershowitz thinks this reasoning should not even be heard. He insists that terrorism should be comprehensively deterred; it should 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 terrorism than it would have been without it." There follows a discussion of repressive options, in which he makes outrageous suggestions, from which he withdraws after he thinks he has stretched the limits of the reasonable. Total control of the media, monitoring all communications, criminalising advocacy, restricting freedom of movement, collective punishment, targeted assassinations, pre-emptive attacks, massive retaliation, secret military trials and torturing suspects (an entire chapter), are considered seriatim .

In the jurisprudential equivalent of titillation, he advances a constitutional case for non-lethal torture in the US - reasoning that a detainee granted immunity from self-incrimination could be tortured under judicial warrant in the public interest, inter alia because the prohibition in the Bill of Rights on "cruel and unusual punishment" should apply solely to punishment after conviction.

Dershowitz does not spend much time spelling out the foreign-policy implications of his prescriptions. On his premises there should be no Palestinian state until long after the last platoon of Palestinian militants has met Allah. Equally, black South Africans should not have been given the vote and Nelson Mandela kept in jail until some time after Umkhonto we Sizwe had fully decommissioned its weapons.

Dershowitz exhorts us to "commit ourselves never to try to understand or eliminate (terrorism's) alleged root causes, but rather to place it beyond the pale of dialogue and negotiation". If the Bush administration were to follow this policy rigorously, it would counsel the governments of the Great Lakes of Africa, the Sudan, Sri Lanka and Macedonia, to abandon their respectively budding peace processes to uphold an abstract principle with no proven track record of success. The Bush administration's generalised war on terrorism already confronts the problem that the war gives a blank cheque to governments - the greatest killers of the 20th century - to define and crush all ethnic and nationalist dissent as terrorist, as in Russia and China.

But policy-makers listening to Dershowitz would soon be at sea because he contradicts himself. He declares that "the reality is that the 'root causes' of terrorism are as varied as human nature", and that "every single 'root cause' associated with terrorism has existed for centuries" (even though he tells us that the formation of Israel and the expulsion of Palestinians happened only in the past century). He tells us that "the 'root cause' of terrorism that must be eliminated is its success", and then adds, bizarrely given his just-mentioned chief policy recommendation, that terrorism does "of course, have substantive root causes". We just should not redress such causes because to do so might set bad precedents.

There is some coherence in this position: we are told that being effectively tough on terrorism requires tough-minded people to ignore both its causes and discussion of its causes. That does not mean that it is sound advice. Dershowitz would benefit from the counsel of a smarter UK lawyer: be tough on terrorism and the causes of terrorism. This would be an intelligent position for a neo-conservative. But a policy of not distinguishing between the violence of self-determination movements, repressive states, rogue states, and that of ideological and religious fanatics will serve the US, and all of us, ill.

Scandalously, Dershowitz titles a chapter, "The internationalization of terrorism: how our European allies made September 11 inevitable". Europe, by which he means France, Germany and Italy, has allegedly been soft on terrorism, especially Palestinian terrorism - and has therefore "incentivized" al-Qaida. This is a gross collective calumny, and no better than head-butting as a style of argument. Germany and Italy were tough on their local terrorists, especially the ultra-left. The French have hardly been less rigorous with Islamists. None of them has any causal responsibility for Palestinian terrorism - which cannot be said of the two states for which Dershowitz speaks. And it was not European, but US foreign policy, especially in Afghanistan, Pakistan and Saudi Arabia, that facilitated the rise of the truly wild mujahideen . The CIA has termed as "blowback" the repercussions of US foreign policy-making disasters, and honest US policy-makers, of whom there are very many, are aware that the complex aetiology of September 11 had some domestic provenance.

Fear and misunderstanding may be enhanced among gullible readers of this book. It is regrettable that a Harvard Law School teacher wants to circumvent constitutional prohibitions on torture, and that Yale University Press has given its imprimatur to this repetitive and shallow text. For the sake of life, liberty and the pursuit of happiness, it is imperative that Dershowitz's counsel wins no more converts than Bin Laden's advocacy of the restoration of the Caliphate.

Brendan O'Leary directs the Solomon Asch Center for the Study of Ethnopolitical Conflict, University of Pennsylvania, US, which recently co-organised a conference on countering terrorism with the behavioural science unit at the FBI National Academy, Quantico, Virginia.