PREEMPTION

One person’s ounce of prevention is another’s war crime: That’s the slippery slope on which renowned legal scholar and commentator Dershowitz (Why Terrorism Works, 2002, etc.) develops his latest treatise.

Proof of intent was once an evidentiary requirement, or at least desideratum, before jailing someone who might do wrong or attacking a country that might harbor terrorists. No more, not since 9/11. Writes Dershowitz, “The shift from responding to past events to preventing future harms is one of the most significant but unnoticed trends in the world today.” That trend works against a long tradition of deterrence, and, Dershowitz argues, prevention cannot be supported “as a general principle because so much properly depends on the values at stake.” If the U.S. could invade Iraq because its ruler was presumed to be developing weapons of mass destruction, could not Saddam Hussein bomb an American city with an eye to killing exiled enemies of his regime? The two positions are not so far apart. Yet, Dershowitz allows, there can be just cause to strike first: If England had attacked Germany in the mid-1930s in order to prevent rearmament and thus WWII, we might not really know what evil had been prevented, but we would remember that Britain had acted as an unprovoked aggressor. In this light, Dershowitz examines Israel’s conduct in conflicts with its Arab neighbors, some of which he regards as lawful inasmuch as they meet international criteria of self-defense, others not. He then turns to the prospects of taking preventive measures against terrorism, which seems an uncertain enterprise at best and one likely to harm democratic values. “There is a desperate need in the world for a coherent and widely accepted jurisprudence of preemption and prevention” that would allow both self-defense and the defense of others, he writes—adding that those who advocate such prevention must be prepared to bear a heavy burden.

Provocative, if unlikely to sway the present administration.