Muslim Legal Defense Fund files complaint against Dershowitz

[Allan Ides]

I was the Locke/Hobbes guy.

Is that correct that "most of the P.A. populace supports and encourages suicide
bombings?"  I'm not disputing your point, but just curious as to your source.

As to your theoretical position, assuming it's true that there is no legal
recourse for Society 1, then I agree that we should expect that Society 1 would
take action appropriate for its survival -- the Hobbesian rule.  This is the
consequence of the absence of the rule of law.  But the same holds true for
Society 2.  What if your Society 2 found itself in the same position, i.e.,
having no legal recourse against what it perceived as the trespasses of Society
1?  Would you permit Society 2 to engage in self help, say in the form of
suicide bombings?  And isn't this the problem presented by having no available
rule of law regardless of which Society's view of the matter you happen to
favor?

allan ides

"Scarberry, Mark" wrote:

> While I mostly agree with Bryan, I do have to ask what a society (Society 1)
> is to do if civilian members of an adjoining society (Society 2) insist upon
> carrying out suicide bombings of Society 1 civilian targets. Someone earlier
> in this discussion suggested that we follow Locke domestically but seem to
> follow Hobbes internationally, meaning that, in international matters, we
> resort quickly to unregulated violence. But note that, at least if I recall
> my Locke correctly, Locke thought that a society like Society 1 had the
> right for its own safety to destroy or enslave the members of another
> society like Society 2 that refused to live with it in peace.
>
> It seems we have gotten beyond Locke, but again I ask what Society 1 is to
> do? In the case of Israel and the Palestinian Arabs(P.A.), it seems that
> most of the P.A. populace supports and encourages suicide bombings. Does
> international law allow no effective means to be used in such a case? We are
> all familiar with the notion that a constitution is not a suicide pact--is
> international law?
>
> Mark Scarberry
> Pepperdine
>
> -----Original Message-----
> From: Bryan Wildenthal
> To: CONLAWPROF at listserv.ucla.edu
> Sent: 11/25/2002 5:24 PM
> Subject: Re: Muslim Legal Defense Fund files complaint against Dershowitz
>
> I would just like to note for the record that, while I essentially agree
> with Eugene on the First Amendment issue, I do not agree that the
> "proper role of collective punishment and torture as tools to prevent
> mass murder, and as tools to fight the gravest of threats to a nation,
> is a complex and unresolved question."  It frightens me to think that
> many well-intentioned and obviously intelligent people apparently view
> it as a difficult and "unresolved" question.  I find it a very simple
> question actually, and do not lose much sleep over my answer, which is:
> No, collective punishment and torture are never morally acceptable
> responses, even to the most heinous atrocities and provocations by
> others.  Two wrongs don't make a right.  And while I am not an
> international law expert, it appears from what Prof. Martin and others
> have posted that international law is in fact quite clear and
> categorical in prohibiting both of these types of human rights
> violations under all circumstances, and I happen to think that is a good
> thing.
>
> But I believe the First Amendment nevertheless protects the right to
> advocate, as Prof. Dershowitz has done (very wrongheadedly in my view)
> even actions clearly illegal under international law, and equally
> clearly immoral in my view, subject to the very narrow imminent
> incitement rule describe by Eugene.  And I happen to also think that is
> a good thing.  It is only by openly debating such issues that either
> ambiguity and difficulty can be recognized, or that clear and simple
> moral insights can be arrived at, defended, and maintained.
>
> I.e., I think the open-debate/search-for-truth rationale for free speech
> properly cited here by Eugene applies regardless of how "complex" or
> "difficult" or "close" a given issue is.  I have not the slightest
> hesitancy in defending this principle even as to the most extreme cases,
> such as advocating (or denying the historical reality of) things like
> the Holocaust.  I think laws restricting speech on certain extreme
> subjects deemed sacrosanct (like the anti-Holocaust-denial laws in many
> European countries) only numb intellectual and moral sensibilities in
> the long run, and clothe extremely evil views with the superficial
> glamor of "forbiddenness."  They amount to secular blasphemy laws.
> Intellectual and moral recognitions of evil must (and can only be, in my
> view) refreshed by constant open debate, and cannot be legislated by
> governmentally enforced orthodoxies.  Think about how many people's
> knowledge of, and outrage about, the Holocaust has been refreshed by
> non-governmental reactions to and refutations of, the occasional
> Holocaust-denial cranks.  I truly think it would have been worse had the
> government been able to effectively muzzle such cranks without us ever
> hearing much more from them.
>
> I know my own personal sense of the intolerability of torture under any
> circumstances has been greatly refreshed by my emotional and
> intellectual reactions to the many thoughtful arguments which
> well-meaning people have put forth since 9/11 seeking to justify
> governmental torture in certain extreme cases.  That, and a trip to the
> Museum of Torture in Balboa Park here in San Diego, which I think
> everyone should visit and ponder (or some equivalent to it) before
> speaking above a whisper on the subject of whether any society should
> EVER again open the door, even a nanometer, to the legal acceptability
> of torture under ANY circumstances.  And I would say that the familiar
> arguments about ticking nuclear bombs (inherently weak and far-fetched
> anyway, in my view) are irresponsible without also recognizing and
> accepting the reality that any governmental tool, once accepted under
> any such extreme hypothetical, then "lies about like a loaded weapon,"
> in Justice Jackson's timeless phrase, for other more obviously
> unjustifiable uses.  There are many ways to combat the threat of nuclear
> (and other forms of) terrorism, and if all those methods fail and we
> have only torture of some lone suspect in custody to save us, well, we
> are doomed anyway in the long run then.  I would really rather take the
> very small added risk of dying in a nuclear explosion than live in a
> society which has (re)opened the door to legal torture.
>
> Bryan Wildenthal
> Thomas Jefferson School of Law
>
>  -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Monday, November 25, 2002 3:10 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Muslim Legal Defense Fund files complaint against
> Dershowitz
>  1)  Bryan Wildenthal has cogently explained why an American government
> agency may not punish Americans for their speech abroad (assuming that
> the speech doesn't fit within the standard exceptions).  I should just
> add that the few courts that have considered the matter have to my
> knowledge all agreed with Bryan's position, even in situations where
> they are simply asked to enforce a foreign judgment based on speech
> overseas.  See Matusevitch v. Telnikoff, 877 F Supp 1 (DDC 1995), aff'd
> on other grounds by the DC Cir; Bachchan v. India Abroad Pubs., 585
> N.Y.S.2d 661 (Sup. Ct. 1992); Abdullah v. Sheridan Square Press, 1994 WL
> 419847 (SDNY).
>
>     2)  Of course the First Amendment does protect "incitement," unless
> the speech is intended to and is likely to cause imminent unlawful
> action.  I can't imagine that Dershowitz's op-ed, either in a New York
> paper or an Israeli paper, is likely to cause any action (op-eds by
> lawprofs aren't that effective!), and certainly not *imminent* unlawful
> action.  Cf., e.g., Hess v. Indiana, showing the limits of this very
> narrow category.  Say that Prof. Martin wrote an op-ed in the Boston
> Globe urging that Dershowitz be disbarred, and a court later found that
> such disbarment would be unconstitutional (violative of the First
> Amendment) and therefore unlawful.  Would Prof. Martin be potentially
> punishable for "inciting" a violation of the First Amendment?  Certainly
> not.  Likewise with Prof. Dershowitz.
>
>     3)  I too share Prof. Martin's desire to prevent atrocities; and yet
> consider what we're discussing in this very case:  Prof. Martin is
> taking the view that under international law -- which I believe he would
> much like to see adopted as the domestic law of the U.S. -- Alan
> Dershowitz could be *criminally punished* for dissenting from what Prof.
> Martin sees as the international law consensus.  As I've mentioned
> before, the proper role of collective punishment and torture as tools to
> prevent mass murder, and as tools to fight the gravest of threats to a
> nation, is a complex and unresolved question.  The issue is:  Are
> citizens of democracies going to debate this question freely (in a
> debate that, if freely conducted, might lead some people to be
> persuaded, rather than just legally bludgeoned into submission)?  Or
> will one side be gagged not just with the risk of loss of livelihood,
> but of prison time for expressing a view on what a government ought to
> do?
>
>     Eugene