Jurisprudence of Prevention

Some good common sense from Alan Dershowitz.

In an column about Dershowitz’s new book, Tony Blankley writes:

To see the difference between traditional Anglo-American criminal jurisprudence and [Dershowitz’s] proposed jurisprudence of prevention, he raises the great maxim of criminal law: better that ten 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.

Prof. Dershowitz updates the maxim thusly: “Is it better for ten possibly preventable terrorist attacks to occur than for one possibly innocent suspect to be preventively detained?” I would hunch that most people would not be willing to accept ten September 11th attacks (30,000 dead) in order to protect one innocent suspect from being locked up and questioned for a while.

Is it possible to go beyond such gut instincts and ad hoc decision making during a crises, and begin to develop a thoughtful set of standards for conduct in this dangerous new world? I don’t know.

As Prof. Dershowitz observes, a jurisprudence develops slowly in response to generations, centuries of adjudicated events. But to the extent we recognize the need for it and start thinking systematically, to that extent we won’t be completely hostage to the whim and discretion of a few men at moments of extreme stress.

At the minimum, an early effort at a jurisprudence of prevention would at least help in defining events. Consider the long and fruitless recent debate about the imminence of the danger from Saddam Hussein’s Iraq, or the current debate on Iran’s possible nuclear weapons. Under traditional international law standards they are both classic non-imminent threat situations: “early stage acquisition of weapons of mass destruction by a state presumed to be hostile.”

But as Dershowitz points out, while the threat itself is not imminent, “the opportunity to prevent the threat will soon pass.” Once they have the weapons it is too late [my emphasis].

Or, a low price in innocent casualties might soon pass. For instance, in 1981 when Israel bombed Iraq’s nuclear site at Osirak, if they had waited much longer the site would have been “radioactively hot” and massive innocent civilian casualties would have been incurred from radioactive releases. It is simply not enough anymore to say a country violates the norm by acting in its ultimate, but not imminent, self-defense. We need new standards for a new age.

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