Byline: Tony Blankley, THE WASHINGTON TIMES
Next week a vastly important book will be published: "Preemption, A Knife That Cuts Both Ways" by Alan Dershowitz. Yes, that Alan Dershowitz: the very liberal civil libertarian, anti-capital punishment Harvard Law School professor. And but for my lack of his legal scholarship, there is nary a sentence in the book that I - a very conservative editor of The Washington Times and former press secretary to Newt Gingrich - couldn't have written.
The premise of his book is that in this age of terror, there is a potential need for such devices as profiling, preventive detention, anticipatory mass inoculation, prior restraint of dangerous speech, targeted extrajudicial executions of terrorists and preemptive military action, including full-scale preventive war.
In his own words, from his introduction: "The shift from responding to past events to preventing future harms is part of one of the most significant but unnoticed trends in the world today. It challenges our traditional reliance on a model of human behavior that presupposes a rational person capable of being deterred by the threat of punishment. The classic theory of deterrence postulates a calculating evildoer who can evaluate the cost-benefits of proposed actions and will act - and forbear from acting - on the basis of these calculations. It also presupposes society's ability (and willingness) to withstand the blows we seek to deter and to use the visible punishment of those blows as threats capable of deterring future harms. These assumptions are now being widely questioned as the threat of weapons of mass destruction in the hands of suicide terrorists becomes more realistic and as our ability to deter such harms by classic rational cost-benefit threats and promises becomes less realistic."
Yet, such policies conflict with traditional concepts of civil liberties, human rights, criminal justice, national security, foreign policy and international law. He shrewdly observes that historically, nations - including democracies - have resorted to such deviations from law and custom out of necessity, but that it has all been ad hoc, secret or deceptive.
Mr. Dershowitz argues that now, rather, we need to begin to develop an honest jurisprudence of prevention to legally regulate such mechanisms. It is better, he argues, to democratically decide now, before the next disaster, this new jurisprudence - the rules by which we will take these necessary actions.
To see the difference between traditional Anglo-American criminal jurisprudence and his proposed jurisprudence of prevention, he raises the great maxim of criminal law: better that 10 guilty go free, than one innocent be wrongly convicted. That principle led our law to require proof beyond a reasonable doubt before conviction in criminal trials. Most of us agree with that standard.
But then Mr. Dershowitz updates …