Muslim Legal Defense Fund files complaint against Dershowitz

[lweinberg]

Nov. 24, 2002
Dear Eugene,
         You raise an interesting issue.  I am delighted that the Muslim
group is using good legal channels to vent their views, instead of issuing
fatwas and throwing bricks through windows.  In seeking such avenues to
vent their disagreement with Dershowitz, surely they are to be commended,
even if you detect some condescension among those of us who are proud of
them for it.
         I agree with you, of course, that advocacy is protected by the
First Amendment.  Moreover, although the conduct advocated might constitute
war crimes when engaged in by an aggressor, I am not clear that any or all
of it would necessarily constitute war crimes when used to deter, or in
defense against, actual crimes of terror and murder.  Moreover, some of
Dershowitz's suggestions would fall far short of any reasonable definition
of a war crime.  The government of Israel could publish a list of
Palestinian villages slated for destruction should there be a future act of
Palestinian terror against the lives of the innocent, for
example.  Although such a list might constitute a true threat, it might
also constitute a humane warning to the innocent; and in either case seems
to fall short of conduct that might constitute a war crime.  Finally,
actual destruction of a village may be a permissible option to a nation
under attack by an invisible and implacably murderous enemy bent on  its
destruction.
         Of course, it is only recently, since the new intifada and 9/11,
that the peace party in Israel and this country have begun to realize that
the Palestinian militants have become and may have been Islamic
fundamentalists at least since the advent of Yassir Arafat.  We find it
hard to shake off our old conviction that the Palestinians "long for a
state of their own," even though they seem always to become violent when
offered one.  Also, after Viet Nam, Americans especially are disturbed by
even the threat of destruction of a village as a war strategy.
         On the issue of torture, wrongly or rightly I cannot go along with
Dershowitz; I have a perhaps irrational reaction against it and I believe
he hurt his case by considering it.   But, again, you are right, of course,
that advocacy is protected speech.
All best,
Louise


At 09:23 PM 11/23/02, Volokh, Eugene wrote:

>         Here's their press release,
> <http://www.mldef.org/Release112102.html>http://www.mldef.org/Release112102.html;
> their actual complaint is at
> <http://www.mldef.org/Dershowitz_letter.pdf>http://www.mldef.org/Dershowitz_letter.pdf
>MUSLIMS FILE DISCIPLINARY COMPLAINT AGAINST ALAN DERSHOWITZ
>
>Harvard Professor Advocates War Crimes Says Muslim Legal Group
>
>(WASHINGTON D.C., 11/21/02) - An American Muslim legal group today
>announced the filing of <http://www.mldef.org/Dershowitz_letter.pdf>a
>complaint with the Massachusetts Board of Bar Overseers demanding
>disciplinary action against Harvard Law Professor Alan Dershowitz. The
>Muslim Legal Defense and Education Fund (MLDEF) says Dershowitz violated
>rules of professional conduct when he advocated the commission of war
>crimes and the use of torture.
>
>MLDEF will hold a conference call today at 11 a.m. (EST) to discuss its
>complaint. Media professionals may call 510-220-1414 to receive the phone
>number and password.
>
>In an article published in the Jerusalem Post and the New York Daily News
>on March 11, 2002, Dershowitz advised the Israeli government to establish
>a "waiting list" of Palestinian villages scheduled for destruction as a
>means of deterring future suicide bombers. In so doing, he has violated
>Rule 8.4 (d) of the "Rules of Professional Conduct" which states: "It is
>professional misconduct for a lawyer [in Mass.] to engage in conduct that
>is prejudicial to the administration of justice."
>
>As an officer of the legal system Prof. Dershowitz has sworn an oath to
>uphold the laws of the State of Massachusetts and of the United States.
>The latter includes international treaties and conventions to which the
>United States is a signatory.
>
>The destruction of villages is a Nuremberg War Crime and is contrary to
>Article 33 of the Fourth Geneva Convention which states: "No protected
>person may be punished for an offense he or she has not personally
>committed," and "collective penalties and likewise all measures of
>intimidation or of terrorism are prohibited."
>
>The Geneva Convention is a ratified treaty and is therefore a valid
>Federal law of the United States.
>
>"Traditionally the international community has only had the capacity to
>deal with ethnic cleansing and genocide, through humanitarian assistance
>for the victims or through war crimes tribunals, after it has occurred,"
>said MLDEF Chair Al-Hajj Talib Karim Esq. "A much more effective approach
>would be to censure those who are in the midst of laying the pseudo-legal
>foundation for war crimes in the hope that the momentum towards such acts
>is slowed or stopped," said Karim.
>
>He added, "Surely the Board of Bar Overseers would have reprimanded a
>Massachusetts lawyer who advocated in a Nazi-era newspaper for the
>destruction of the Warsaw Ghetto. Such behavior is prima fasciae
>unbecoming of a lawyer, and those who advocate such things ought to be
>disciplined."
>It seems to me quite clear that Dershowitz's speech is perfectly protected
>by the First Amendment -- anything I'm missing here?
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