Pre-emption: Preventive, coercive, or both?

In the wake of 9/11, how to defend the country in a new age of terrorism has sparked an ongoing, often divisive debate. Some consider tactics like pre-emption, the right to use force to respond to an imminent threat, and preventive war, the use of force to prevent a serious threat from worsening over time, acceptable, even if it means occasionally turning a blind eye to the law to preserve national security. Others argue such methods are never warranted and violate the basic tenets of a free, democratic society.

Elements of the same debate were discussed Sept. 27 at the Ropes Gray Room in Harvard Law School’s (HLS) Pound Hall. Legal scholars Alan Dershowitz, Harvard’s Felix Frankfurter Professor of Law, and David Cole, professor of law at Georgetown University, took on the question of pre-emption and preventive war. Both have authored books on the subject. Cole’s “Less Safe, Less Free” (co-written with Jules Lobel) criticizes the tactics of the Bush administration’s war on terror and suggests that much of what has been done in the name of security has actually made the country less safe.

Dershowitz’s book “Preemption: A Knife That Cuts Both Ways,” addresses the importance of creating a set of legal guidelines to regulate pre-emptive measures.

While some may have been hoping for a fiery exchange, the advice of the two authors is not dissimilar.

Cole said he is not completely against preventive measures to fight terrorism and that he considers some strategies and techniques sensible and noncontroversial. But he drew the line at the harshest coercive measures that he claimed have been used by the Bush administration, such as preventive detention, coercive interrogation, and torture. Those tactics, he argued, have deepened anti-American sentiments around the world and jeopardized national safety.

Cole said, “If al-Qaeda had gone out and hired the best minds on Madison Avenue and said, ‘Come up with an advertising campaign for us,’ they never would have come up with anything as good as Abu Ghraib. We gave it to them, in the name of prevention.”

Dershowitz often agreed with Cole’s positions.

“I am against almost everything that David’s against,” said Dershowitz. “I am against the war in Iraq, I am against the use of unregulated surveillance, I am against the use of ethnic profiling.”

It was on torture, an issue Dershowitz has written about often, that the two disagreed.

While Cole considers torture unacceptable, Dershowitz takes a different tack. His stance is a complicated, nuanced one, made even trickier by his admission that he is, personally, adamantly opposed to torture.

To explain his case, he offered the example of the death penalty. Though he doesn’t believe in it, he said he realized he must accept that it is sanctioned in some areas of the country. The next best solution, he claimed, is to create an exacting legal framework, a set of standards that subjects it to strict rules and accountability. He applied that argument to his support of a torture jurisprudence.

“I want to make sure that if my government ever does this horrible, terrible, extraordinary thing, that somebody takes responsibility for it and that it be out there in the open and subject to accountability,” said Dershowitz. “Though I understand the danger of legitimating something that should not be legitimated, on balance in a democracy, I prefer accountability.”

But Cole stayed firm.

“The fact that [torture] goes on even though we prohibit it doesn’t mean that the response is to regularize and it and legitimate it through the creation of a legal mechanism that would authorize it in advance,” he said.

As for preventive wars, the two diverged as well. Cole said he is skeptical of the strategy and wants countries to receive approval from the United Nations Security Council as a means of limiting and regulating the use of preventive wars. Throughout history, he asserted, preventive wars have led to mass carnage. He argued they could have been avoided by diplomacy and other means.

There are certain cases when a country, whose security is on the line, will go to war without approval from the United Nations, said Cole. “The question is whether you want to create a general rule that encourages that or discourages that. I think the general rule that international law has accepted discourages that.”

Dershowitz said he fundamentally disagreed that a nation should allow the life of its citizens and its future to depend on a security council that is subject to vetoes and subject to debate. History has also shown that some preventive wars can be effective, he said, citing the case of Israel’s attack on a nuclear reactor in Osirak, Iraq, in 1981 to prevent Iraq from possibly creating nuclear weapons to use against Israel.

Still, he urged caution and restraint.

“I would never make preventive war the paradigm,” said Dershowitz, “I would make it an extraordinary, extraordinary exception subject to all kinds of rules.”

After the debate, Jonathan Shepard, a student at HLS, acknowledged the complexities of the discussion. “I came in confused,” he said, “and I left more confused with a lot more information.”

HLS student Hans Perl-Matanzo said he welcomed a debate on such a controversial set of topics.

“I think it’s dangerous not to discuss these issues,” he said. “Dershowitz is calling for them to be discussed more honestly.”

colleen_walsh@harvard.edu