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They call us "self-hating" Jews when we raise criticisms of Israeli policies. Yet most of those Jews who risk this calumny as the
cost of getting involved actually feel a special resonance with the
history and culture of the Jews--because this is a people who have
proclaimed a message of love, justice and peace; they feel a special
pride in being part of a people who have insisted on the possibility of
tikkun, a Hebrew word expressing a belief that the world can be
fundamentally healed and transformed. A Los Angeles Times poll in 1988
found that some 50 percent of Jews polled identified "a commitment to
social equality" as the characteristic most important to their Jewish
identity. Only 17 percent cited a commitment to Israel. No wonder, then,
that social-justice-oriented American Jews today feel betrayed by
Israeli policies that seem transparently immoral and self-destructive.

Social justice Jews are not apologists for Palestinian violence. We are
outraged by the immoral acts of Palestinian terrorists who blow up
Israelis at Seder tables, or while they shop, or sit in cafes, or ride
in buses. We know that these acts of murder cannot be excused. But many
of us also understand that Israeli treatment of Palestinians has been
immoral and outrageous. Hundreds of thousands of Palestinians fled their
homes in 1948, and recent research by Israeli historians has shown most
fled not because they were responding to the appeal of Arab leaders but
because they feared acts of violence by right-wing Israeli terrorists or
were forced from their homes by the Israeli army. Palestinian refugees
and their families now number more than 3 million, and many live in
horrifying conditions in refugee camps under Israeli military rule.

Despite its oral promises at Oslo to end its occupation of the
Palestinian territories by 1998, Israel actually increased the number of
West Bank settlers from about 120,000 in 1993 to 200,000 by the time
Prime Minister Ehud Barak met with Yasir Arafat at Camp David. And
although the Israeli and US media bought the myth that what was offered
to Palestinians there was "the best they could ever expect," and that
their rejection of the offer was proof that they wanted nothing less
than the full destruction of Israel, the facts show quite a different
story. Not only did Barak offer Arafat less than had been promised in
1993 but he refused to provide anything in the way of reparations or
compensation for the refugees. Instead, he insisted that Arafat sign a
statement saying that the terms being offered by Barak would end all
claims by the Palestinian people against Israel and would represent a
resolution of all outstanding issues. No Palestinian leader could have
signed that agreement and abandoned the needs of those refugees.

Though it is popularly thought that negotiations broke off there, they
continued at Taba until Ariel Sharon's election ended the process,
which, according to then-Justice Minister Yossi Beilin, was very close
to arriving at a full agreement between the two peoples. Sharon did not
want that agreement because he has always opposed any deal that would
involve abandoning the West Bank settlements, which he had helped expand
in the 1980s--precisely to insure that Israel would never give up the
occupied territories. Using the excuse of responding to acts of terror
by some Palestinians, Sharon recently set out to destroy the
institutions of Palestinian society and has done so with murderous
brutality, with little regard for human rights and with great harm to
many civilians.

No wonder, then, that social-justice-oriented Jews are upset by Israeli
policies. They see that the policies are leading to a frightening
upsurge in anti-Semitism. And far from providing security for Israel,
they are creating new generations of terrorists and convincing the world
that Israel has lost its moral compass.

Still, many Jews and non-Jews have been intimidated by the intense

campaign being waged by the American Israel Public Affairs Committee
(AIPAC) and by other Jewish organizations. These groups label those
critical of Israel "self-hating" if they are Jewish or anti-Semitic if
they are not and mobilize large amounts of money to defeat candidates
deemed insufficiently pro-Israel. Ethically sensitive non-Jews are
vulnerable to the manipulation of guilt about the long and bloody
history of anti-Semitism in Christian Europe and Islamic north Africa,
plus the US refusal of entry to Jews seeking asylum from the Nazis in
the 1940s. There is ample reason for the non-Jewish world to atone for
its past oppression of Jews. But non-Jews are doing no favors to the
Jewish people when by their silence they help the most destructive
elements of the Jewish world pursue immoral policies that almost
certainly will generate more hatred of Jews.

It is time for the United States to sponsor a multinational force to
physically separate and protect Israel and Palestine from each other,
and then to convene an international conference to impose a final
settlement. This would include an end to the occupation, evacuation of
the settlements, reparations for Palestinian refugees (and also for Jews
who fled Arab lands), recognition of Israel by surrounding Arab states
and cessation of all acts of terror and violence. Imposing that kind of
a settlement, by force if necessary, would provide real security to both
sides and open up psychic space for the healing that must happen. What
is called for is a new spirit of generosity, open-heartedness,
repentance and reconciliation between two peoples who share equally the
blame for the current mess and who both have legitimate grievances that
must now be left behind for the sake of lasting peace....

This is a goal of thousands of American Jews and our non-Jewish allies
who have recently formed the Tikkun Community, a progressive, pro-Israel
alternative to AIPAC. Israel/Palestine peace is not only a Jewish issue;
our non-Jewish allies will be essential to our campaign to educate the
media, opinion shapers and elected officials. The nonviolent civil
disobedience sponsored by the Tikkun Community at the State Department
in April, at which Cornel West and I were arrested, is only one part of
a campaign that will include lobbying, teach-ins, fasting, sending
volunteers to be part of an international presence on the West Bank,
collecting funds to rebuild Palestinian cities (and Israeli sites
destroyed by Palestinian terror attacks) and demands on Jewish and Arab
institutions to adopt a path of nonviolence. We are also creating a
national student conference in October. Many students face an impossible
choice between pro-Israel groups that support Sharon's current policies
in lockstep or pro-Palestinian groups that claim the Palestinians are
facing Nazi-like genocide at the hands of the Jewish people (an
exaggeration that allows right-wing Jews to yell "anti-Semitism" because
there is no attempt to systematically murder Palestinians, thereby
letting Israel off the hook).

Our goal, both on campuses and in the larger society, is to forge a
middle path of "tough love" for Israel--recognizing that the best way to
protect Israel and the Jewish people is to use the power of the
international community to impose a settlement and end the occupation.
That's the path for true self-affirming Jews and non-Jews who care
enough about their Jewish brothers and sisters to get involved.

The twentieth century was arguably the bloodiest in modern history,
earning from one commentator the moniker of the Age of Barbarism. From
the Nazi genocide, to the killing fields of Cambodia and Rwanda, to the
"ethnically cleansed" areas of the former Yugoslavia, the twentieth
century was one of unprecedented horror for many.

Mass slaughter of civilians is, of course, much older than these
horrors. The modern world brought about by European expansionism, the
famed Pakistani intellectual Eqbal Ahmad once observed, is a time of
extraordinary unrecorded holocausts. How many of us, for instance, are
familiar with the deaths of upward of 10 million in the
Belgian-controlled Congo in the latter nineteenth and early twentieth
centuries? Or how about Australia's extermination of the indigenous
population of Tasmania? The decimation of inferior races in settler
colonies, brought about by Western imperialism and the associated
legitimizing ideologies, in fact, contends Sven Lindqvist in his
brilliant Exterminate All the Brutes, ostensibly laid the
groundwork for Hitler's crimes by creating particular habits of thought
and political precedents.

What was unique to the twentieth century--and thus the subtitle of
Samantha Power's very impressive "A Problem From Hell": America and
the Age of Genocide--
was the invention of the very word "genocide"
and its establishment as a legal construct outlawing one of the most
egregious forms of state terror. That represents a great advancement in
the construction of international law and associated political and
juridical mechanisms, but the fact that genocide continues to occur and
to go unpunished speaks to the difficulties of giving life to a legal
regime.

While the parties most responsible for this shortcoming are those that
perpetrate genocide, Power focuses much of her opprobrium on the party
that is in her estimation best positioned to put an end to or at least
significantly curb such horror: the US government. "No US President has
ever made genocide prevention a priority," she writes, "and no US
President has ever suffered politically for his indifference to its
occurrence. It is thus no coincidence that genocide rages on."

The myriad horror stories of this age of genocide have many ugly
characters, several of whom Power profiles in her well written and
extensively documented book. But there are also many heroes, namely
those within and without the US government who have spoken the
proverbial truth to power with the goal of making Washington appreciate
or acknowledge--and thus take appropriate action--that genocide was
taking place in the various case studies that Power carefully details.

Perhaps the biggest hero in Power's book is Raphael Lemkin. A Polish Jew
who as a young boy had a fascination with the history of mass
slaughters, Lemkin became a lawyer and international legal scholar. He
set out to ban the destruction of ethnic, national or religious groups,
to end the national sovereignty-granted impunity of state actors
who perpetrate such atrocities and to insure universal jurisdiction for
their prosecution.

Forced to flee his homeland when the Nazi army invaded in 1939, Lemkin
ended up in the United States soon thereafter. He worked indefatigably
to bring attention to and to record Hitler's extermination of Jews,
while urging Americans to do everything they could to put a stop to it.
At the same time, he endeavored to invent a word to characterize such
slaughters, one that, in Power's words, "would connote a practice so
horrid and so irreparable that the very utterance of the word would
galvanize all who heard it." When he coined the term "genocide" in 1944,
Western governments and political pundits quickly embraced it. This led
Lemkin to assume that actions to codify the term and fight the practices
comprehended in it would quickly follow. He soon learned that he had a
long fight on his hands--one that he waged incessantly until he died,
penniless, in 1959.

Before his demise, however, Lemkin saw the United Nations General
Assembly pass the genocide convention on December 9, 1948, the body's
first passage of a human rights treaty. And less than two years later,
the necessary twenty countries had ratified the convention, making it
international law. But he did not live to see the United States ratify
it, a necessary step, Lemkin thought, to insure its enforcement, given
American power. Indeed, it would not be until 1988 that the Senate did
so, but not before attaching a set of reservations, understandings and
declarations that insured that the United States itself could never be
charged with the crime, thus rendering American approval largely
symbolic.

The architects of the convention understood the danger of making
Hitler's crimes the standard by which to determine future genocides.
States must be able to identify as genocide acts aimed at destroying "in
whole or in part, a national, ethnic, racial or religious group"--the
legal definition of the crime--well before they have the chance to reach
such a scale in order to trigger appropriate actions. (The convention
enjoins its signatories to take measures to prevent and punish the
crime.) Despite such intentions, the link between genocide and Hitler's
so-called Final Solution "would cause endless confusion for
policy-makers and ordinary people who assumed that genocide occurred
only where the perpetrator of atrocity could be shown, like Hitler, to
possess an intent to exterminate every last member of an ethnic,
national or religious group."

While the Hitler-standard problem did help to undermine effective
responses by American officials and opinion-makers to various
post-World War II genocides, there were other dilemmas as well,
including the difficulty of believing reports of horrific slaughter.
Even in the face of extensive and graphic media coverage, Power writes,
"American policymakers, journalists and citizens are extremely slow to
muster the imagination needed to reckon with evil." In addition, there
is a tendency to assume, before the fact, that the would-be perpetrators
of genocide are rational actors who will not engage in horrific terror;
that traditional diplomacy can resolve the crisis; and that civilians
who keep a low profile during the conflict will survive. At the same
time, cold geopolitical calculations underlie official reactions, and
they often spin the violence as two-sided, a result of age-old hatreds
and thus inevitable, while arguing that any type of serious intervention
would be futile and even counterproductive. Thus, not only does
Washington abstain from sending troops but it also takes very few steps
along a continuum of potential interventions to deter genocide.

This nonresponse, Power demonstrates, is not something unique to the
presidencies of George Bush Sr. and Bill Clinton, who emerge looking
especially bad. It manifested itself to varying degrees in all the cases
she examines, beginning with the Ottoman Turks' slaughter of almost a
million Armenians in 1915. The United States under Woodrow
Wilson--despite being well informed of Turkey's crimes--did not support
the Allies' condemnation of Turkey's crimes against humanity, lest such
support undermine American neutrality. Disregarding the pleas of
Washington's ambassador, Henry Morgenthau, the Wilson Administration
refused even to issue a direct government-to-government appeal to cease
the killings or to pressure the Turkish authorities to allow
humanitarian aid deliveries to Armenians driven from their homes and on
the brink of starvation. For Power, Wilson's nonresponse "established
patterns that would be repeated."

But as Power illustrates, it was not simply that the United States did
nothing. Often Washington indirectly and directly aided the
genocidaires. In Cambodia, for example, the US bombing that
preceded Pol Pot's seizure of power "killed tens of thousands of
civilians." While horrific in its own right, "it also indirectly helped
give rise to a monstrous regime" responsible for the deaths of upwards
of an estimated 2 million Cambodians. And in the case of Iraq's
slaughter of the Kurds, the Reagan White House dismissed reports of
Saddam Hussein's gassings and other atrocities while maintaining aid to
his regime, preferring to maintain its unholy alliance with Iraq in its
war with Iran. The year after Saddam's forces decimated several thousand
Iraqi Kurdish villages and killed close to 100,000 Kurdish civilians
(1987-88), Washington, now under Bush Sr., actually doubled the
amount of agricultural credit it had been providing to Saddam's regime,
increasing it to more than $1 billion.

In other cases, the United States helped to undermine effective
international responses to genocide. Perhaps the most shameful case was
that involving the Clinton Administration during the 1994 slaughter in
Rwanda, which involved the killing of approximately 800,000 Tutsis and
moderate Hutus in the span of 100 days, making it the fastest, most
efficient killing spree of the twentieth century. Clinton, whom Power
inexplicably refers to as "a committed multilateralist," one with "faith
in the United Nations," did everything he could to avoid doing something
constructive. Throughout, and similar to their conduct through much of
the Serb-perpetrated atrocities in Bosnia, Administration officials
feigned ignorance of what was going on. US intelligence reports had
warned Washington of the likelihood of mass killings in Rwanda.
Nevertheless, Clinton refused Belgium's request to reinforce the small
UN peacekeeping mission to the country. And once the killing started,
the Administration denied almost until the end that genocide was taking
place, despite full knowledge to the contrary. To do otherwise would
have required that Washington take appropriate action. Instead, the
Administration insisted that UN peacekeepers withdraw from Rwanda and
then refused to authorize the deployment of a stronger UN force. It was
not until the Rwandan Patriotic Front had driven most of the
perpetrators out of the country and seized power in the capital that
Clinton ordered the closing of the Rwandan Embassy in Washington and the
seizure of its assets.

In her investigation, Power justifies her choice of case studies by two
key criteria: that each meets the terms of the 1948 genocide convention;
and that it presented the United States with the options for meaningful
diplomatic, economic, legal or military intervention. But as we shall
see, it is questionable whether all her cases satisfy the criteria.

In terms of the first, to suggest that what took place in Kosovo was a
genocide, or would have been had NATO not intervened, is a highly
contentious issue in the international legal and human rights community.
As for the Khmer Rouge, while they were guilty of killing large
percentages of the country's Muslim Chams, Vietnamese and Buddhist
monks, the bulk of their human targets were alleged political enemies.
In this regard, these killings would not form part of a genocide, at
least through the narrow criteria of the 1948 convention.

As Power explains, the architects of the genocide convention made the
explicit decision to exclude political groups--a move actively supported
by Lemkin. They did so in order to insure the support of many countries,
largely those of the Soviet bloc and some from Latin America as well,
that feared the inclusion of political groups would inhibit the ability
of states to suppress armed rebellions within their boundaries. It
appears that Lemkin was sympathetic to neither the underlying
assumptions nor the implications of such an argument but supported it
for pragmatic reasons--a position that Power seems to share. This might
explain why she has no problem including the horrors inflicted by the
Khmer Rouge under the general rubric of genocide. But given this more
flexible notion of what constitutes genocide, it begs the question of
why Power chose the cases she did in laying out her argument and ignored
other possible instances.

This question also relates to the second criterion for her choices,
namely that the United States had a variety of options available for
meaningful intervention. Here, Power is treading on even weaker ground
in some instances.

On Rwanda and Bosnia, Power makes her most convincing case that there
were concrete steps the United States could have taken that would have
had significant effects in lessening the bloodletting. In other
instances she examines, however, such as those of the Nazi and Khmer
Rouge holocausts, she is less convincing. Regarding Cambodia, for
example, she contends that the Khmer Rouge were less immune to outside
criticism than was claimed by American authorities. In this regard, she
argues that "bilateral denunciations by the United States may well have
had little effect on the Khmer Rouge's internal practices.
Unfortunately, because so few US officials spoke out publicly against
the genocide, we cannot know." In terms of the Nazis, Power appeals to
conventional wisdom and suggests that Washington could have done things
to prevent Hitler's crimes, but makes no serious effort to persuade the
reader or to engage the literature that has called such arguments into
question. As Peter Novick argues in his much-acclaimed The Holocaust
in American Life
, the various ex post facto proposals for rescuing
Jews from Nazi clutches ignore what were very real constraints at the
time and often would have been of little practical use. Substantial
rescue efforts, Novick contends, would have had a marginal effect at
best. (Nevertheless, he asserts, it would have been worthwhile to carry
out the proposed actions; but they would have saved 1, or perhaps 2
percent at most, of those who died.)

Power applauds US action loudly in the case of Kosovo. Indeed, she
argues that hundreds of thousands of lives would have been lost had the
United States and its NATO allies not engaged in the bombing campaign
against the Serbs. She offers no substantiation for this claim. And, of
course, how could she? Perhaps the greatest weakness of the Kosovo
chapter, however, is that she does not engage any of the critiques put
forth by the likes of Noam Chomsky and other commentators--many writing
in this magazine--that there were alternatives to the NATO action, ones
that would have been consistent with international law and might have
actually lessened the killings and expulsions that increased
dramatically after the start of the bombing, to say nothing about its
effects on Serb civilians. At the very least, Power should have
presented and grappled with such arguments. Hardly anyone contends that
Milosevic & Co. were not capable and guilty of enormous brutality.
Indeed, Power graphically shows how Serb forces put this capacity to
horrific and massive use in Bosnia and the fatal consequences of the
failure of the West to acknowledge the bloodshed and respond
appropriately. In this regard, mass killings in Kosovo were arguably a
distinct possibility. But the question remains, Were there courses of
action other than that taken up by Washington and its NATO allies?

Power understandably feels outrage at international and, more
specifically, American inaction in the face of mass killing. With an
American audience in mind, she challenges the reader to do
something--whatever is in her power--to suppress and/or bring to justice
those responsible for the slaughter of innocents. She makes a compelling
case for a collective moral, as well as an international legal,
obligation for the US government to do so. But this also raises what is
perhaps the biggest problem with "A Problem From Hell": Even
though she acknowledges that the United States sometimes directly and
indirectly aids genocidal regimes, the overall effect of her examples
and the manner in which she frames the book is to situate Washington as
an outsider to such horrors. In the book's final pages, for example, she
asks, "Why does the United States stand so idly by?" In this sense,
Power's choice of cases is quite safe. Had she looked beyond the
parameters of the conventional and examined instances in which the
American role in mass slaughter has been less that of a bystander and
more that of a partner-in-crime perpetrator, her call for greater levels
of US intervention would seem at best unpersuasive and at worst
hypocritical and potentially dangerous. Three cases--those of Indonesia,
East Timor and Guatemala--illustrate this point.

Led by General Suharto, the Indonesian military and the civilian militia
that it armed and directed engaged in one of the worst bloodlettings of
the postwar era. Over the course of several months in 1965-66, they
slaughtered members of the Indonesian Communist Party (PKI) along with
members of loosely affiliated organizations (women's groups, labor
unions, etc.). While Indonesia's holocaust does not meet the strict
guidelines of the genocide convention, the scale and nature of the
killing spree were undoubtedly genocide-like, similar to the bulk of the
Khmer Rouge's crimes in Cambodia. Amnesty International estimated "many
more than 1 million killed." The head of the Indonesian state security
system approximated the toll at half a million, with another 750,000
jailed or sent to concentration camps. The American political
establishment welcomed the slaughter and the emergence of Suharto's New
Order, with Time hailing it as "the West's best news for years in
Asia."

The United States had effectively helped to lay the groundwork for the
military's seizure of power through its interference in Indonesian
affairs and support for the military over the years. Washington had also
long urged the military to move against the PKI. Accordingly, it
supplied weaponry and telecommunications equipment, as well as food and
other forms of aid, to the Indonesian Army in the early weeks of the
slaughter. The American embassy also provided the military with the
names of thousands of PKI cadres who were subsequently killed.

About ten years later, the Indonesian Frankenstein that Washington had
helped to create decided to invade Indonesia's tiny neighbor of East
Timor. Rather than just looking away, as Power incorrectly reports in
her one reference to East Timor, Washington aided and abetted an
international crime of aggression. While this has long been alleged, the
recent release of formerly classified documents by the Washington-based
National Security Archive now proves that then-President Gerald Ford and
Henry Kissinger, his foreign policy czar, gave Suharto the green light
for the December 7, 1975, invasion while meeting with him the previous
day. Over the following quarter-century, various US administrations
provided billions of dollars in weaponry, military training and economic
assistance to Jakarta during its more than two decades of occupation.
And in the early years of the slaughter, a time described by an
Australian government body as "indiscriminate killing on a scale
unprecedented in post-World War II history," Washington took
concerted steps to insure that the UN did not take effective action to
end Indonesia's annexation. The result was the death of well over
200,000 East Timorese, about one-third of the preinvasion population.

And, finally, Guatemala. There, more than 200,000, most of them
indigenous Mayans, lost their lives in the context of a brutal conflict
between a US-backed military oligarchy and a guerrilla force during the
1970s and '80s. The 1999 report of the internationally supported
Guatemalan Commission for Historical Clarification concluded that the
state was responsible for over 90 percent of the deaths and had
committed "acts of genocide." The commission also found that American
training of members of Guatemala's intelligence apparatus and officer
corps in counterinsurgency "had significant bearing on human rights
violations."

Because Samantha Power excludes cases like these from her analysis, she
seems to have little problem endorsing American global dominance and, on
the basis of such, calling for the United States to take the lead in
battling genocide. At the very end of an excellent chapter on the grisly
slaughter by Bosnian Serbs at Srebrenica, for example, Power lets
Senator Bob Dole explain why the United States finally became involved
in helping to end the terror in Bosnia. "Because we happen to be the
leader of the world," Dole stated.

Clearly there is a problem with Washington taking the lead in fighting
something it has helped to perpetrate on numerous occasions, and for
which it has never atoned, apart from a halfhearted admission of
wrongdoing (but not an apology, by Clinton in the case of Guatemala).

Simply because the United States has been complicit in gross atrocities
in the past does not mean, of course, that it is therefore incapable of
doing good, if even for the wrong reasons. But it does mean that we
should remain extremely skeptical of American leadership on the global
stage. As the current Palestinian-Israeli conflict painfully
demonstrates, what Washington calls American leadership is, as often as
not, unilateralist, bullying, obstructionist. All of these manifest
themselves in Washington's acceptance of Israel's flouting of
international law regarding its ongoing occupation and dispossession of
the Palestinian people. The United States has long been a principal
obstacle to an internationally acceptable solution, and it has done what
it can to prevent a multilateral approach to resolving the conflict.
Such antipathy toward international law and political institutions means
that "genocide prevention" could turn out to be just another instrument
in Washington's empire-maintenance tool kit.

If one of the main objectives of Power's book is to get the United
States to take a more active role in ending mass slaughter, surely it
would seem to be more efficacious--as well as principled--to begin by
scrutinizing cases in which the United States has been directly
involved. In this regard, her appeal to the American political
establishment on the basis of morality and enlightened self-interest
(genocide, she argues, causes regional and international instability,
something bad for the United States) is ill conceived. Ending
Washington's role in the slaughter of innocents requires struggling
against American militarism and unilateralism, as well as against
Washington's refusal to submit to international security and legal
mechanisms that would have even a remote possibility of holding US
officials accountable. The US refusal to sign on to the recently
established International Criminal Court and to cooperate with efforts
by a number of countries to question Henry Kissinger regarding various
international crimes is merely the latest manifestation of such
obstructionism.

This is not to suggest that if we could get the American house in order,
the world would be fine. As Power's book shows, there are plenty of
"evildoers" to go around. Something must be done to stop them, yes, but
it should be a truly international project. The best place to start is
at home, but not by first and foremost asking Washington to intercede
abroad. Demanding a US foreign policy consistent with international law
and human rights standards, as well as international accountability for
American officials who may have engaged in war crimes and crimes against
humanity, is the first step. Doing so will also increase the likelihood
of international cooperation in cases championed by Washington.

Finally, it is not obvious why mass killing that falls under the rubric
of genocide should be paramount in terms of international prevention and
adjudication. Power does not claim this explicitly, but it is a fair
conclusion to draw given that she does not discuss other terrible crimes
against humanity that result in massive loss of life. Why, for example,
should Serbian crimes in Bosnia be more worthy of scrutiny and demands
for accountability than, say, the US war against Vietnam, which caused
the deaths of 2-3 million civilians? In this regard, we must be
careful that the need to suppress and seek justice for genocide does not
prevent us from seeing all mass killings of civilians, no matter who
commits them, as unacceptable, and from acting accordingly.

Since this is going to be a story about sex and children, let's start
with a bit of groping in the priests' chamber.

I must have been 12. My confederates and I, all suited out in our little
Scout uniforms--demure blouse, ribbon tie, sash of merit badges across
the chest, jaunty tam-o'-shanter--were mustered in the rectory of St. John
Gualbert's, there to be investigated on our knowledge of and devotion to
the Blessed Virgin. This was the last step toward our achieving a
Catholic girl's honor called the Marian Award. I remember the word
"investigated." I remember, too, sitting on the long bench, looking at
the heavy draperies, the carved legs of the vast dining table, waiting
my turn in the half-dark, feeling the gaze of the stripped and suffering
painted Jesus behind me while, at the head of the table, our resolutely
unmortified investigator began asking first one girl then another such
questions as "Where do babies come from?" "What do you have between your
legs?" "What do you have here?" laying hand on breast, and so on like
that. Hmm, I thought, these were nothing like the sample questions in
the manual I'd been reviewing for days. And what was he doing
easing my friend up across his tumid belly and onto his lap? I'd never
liked this priest. He was florid and coarse, with piggy eyes, a bald
head and thick fingers that he'd run along the inside of the chalice
after Communion, smacking his lips on the last drops of the blood of
Christ. My mother didn't teach me about sex--I don't count the
menstruation talk--but, without quite saying so, she taught me to regard
authority figures as persons who had to earn respect. Obedience was
rarely free, never blind. Time has stolen what this priest asked me,
where, if anyplace, he touched me; I remember him stinking of drink is
all, and myself standing schoolmarm straight and reciting, with the
high-minded air I affected for such occasions, the statement I'd been
preparing: "Father, I fail to see what that question has to do with the
Marian Award. Girls, let's go." We escaped in a whirl of gasps and
secretive giggles, rushing to telephone our Scout leader. I had no
inclination to tell my mother, but most of the other girls told theirs,
and soon the priest was relieved of child-related duties. We got our
Marian medals without further investigation, and before too long the
priest dropped dead in the street of a heart attack. Even now, as
middle-aged men weep about the lifelong trauma inflicted by an uninvited
cleric's hand to their childish buttocks, I consider my own too-close
brush with the cloth as just another scene from Catholic school.

There were very different scenes, many more in fact, that I could just
as easily conjure forward now under the heading "sex and childhood,"
though at the time I no more thought they had anything to do with sex
than our encounter with the priest or, for that matter, my mother's
subtle lessons in self-possession. They contained, rather, the bits and
pieces of a sensual education that would be fit together in some
recognizable pattern only later. And because, at least in my school at
that time, official silence about sex meant we were also spared lectures
against abortion and homosexuality, onanism and promiscuity ("Thou shalt
not commit adultery"? who knew?), what was left to us was indulgence in
the high-blown romance of the church: Gregorian chants and incantatory
Polish litanies; the telling and retelling of the ecstasies of the
saints; the intoxicating aroma of incense, of hyacinths at Easter and
heaped peonies in June; the dazzling brocades of the priests' vestments
and the Infant of Prague's extravagant dresses, which we girls would paw
through when cleaning the church on Saturday; the stories of hellfire
and martyrdom; and the dark, spare aesthetic of the nuns.

There is a parallel in my ordering of childish memories here and the
public reaction to Judith Levine's Harmful to Minors. Levine
spends a large portion of the book advocating for candid, comprehensive
sex education in schools, something I and many of my generation never
had. But the spirit that animates the book is a less programmatic,
polymorphous appreciation of the sights and smells, the sounds and
language and tactile delights that make a person--adult or child--feel
alive in her skin. Levine's central preoccupation, running like a golden
thread throughout the book, is the pursuit of happiness, the idea that
kids have a right not just to safety and knowledge but to pleasure too.
And "pleasure" here is more than the sweet shudder of a kiss, the happy
exhaustion of climax; it is the panoply of large and small things that
figure under the heading joie de vivre, including the
satisfaction, quite apart from sex, of relating deeply with others in
the world. "Knowledge" is more than facts and technical skill; it is the
ability to understand the prompts of body and mind--to recognize "when
you can't not have it," as one woman quoted by Levine replied to her
daughter's "How do I know?" question--and the wherewithal to decide when
it's time to get out of the rectory.

In another age and country this might be called reasonable, everyday
stuff. Levine spends hardly any time talking about pedophiles, none on
priests. In dissecting the various sexual panics of the past couple of
decades, she marshals a catalogue of what, in the scheme of things,
should be reassuring studies and statistics to show that satanic ritual
abuse is a myth; child abduction, molestation and murder by strangers
(as opposed to family members) is rare and not rising; pedophilia (an
erotic preference of maybe 1 percent of the population) typically
expresses itself in such "hands-off" forms as voyeurism and
exhibitionism; child sex offenders have among the lowest rates of
recidivism; child porn, whether on the Net or the streets, is almost
nonexistent and then (less reassuring) its chief reproducers and
distributors are cops; sexual solicitations aimed at children over the
Net, while creepy, have not resulted in actual assaults; and "willing"
encounters between adults and minors do not ruin minors. Although Levine
has noted in interviews that, as a teenager, she had a sexual
relationship with an older man, she never mentions it in the book, nor
does she delve too far into this last taboo. She relegates to a footnote
the fascinating, difficult story of Mary Kay Letourneau, the 35-year-old
Seattle area teacher jailed for her affair with a 13-year-old student
who impregnated her twice and insisted to the press, "I'm fine."
Levine's most detailed discussion of age-of-consent laws involves the
more easily comprehended story of a precocious 13-year-old, who also
asserted her free will, and an emotionally immature 21-year-old,
currently locked up for statutory rape. More than once Levine states,
for anyone suspicious enough to wonder, her unswerving opposition to
every form of forced, coerced or violent sex, and to sex between adults
and young children. It shouldn't be necessary for her to assert that
just because kids have a far greater chance of dying in a car accident
than at the hands of a sex offender that doesn't mean the latter isn't a
problem, but she does. Yet, for all that, her book is being blasted by
the heavy guns and light artillery of the right-wing sex police as a
child molester's manifesto.

One reason is timing. The priest scandal, one of those things that
everyone knew but kept an unbothered or guilty silence about until the
court cases and daily headlines forced a response, has raised a hysteria
against which any rationality on youthful sexuality has about as much
chance as that student facing the tank in Tiananmen Square. Even without
that, nothing seems to make the blood boil like the suggestion that it's
possible for minors to emerge unscathed or even enriched from consensual
sexual relations with adults. I have had such conversations with
leftists who angrily reject the whole notion, even as I ask, What about
X, who says it was like an answered prayer when his parents'
30-something friend initiated him sexually at 13, when for months
afterward at the end of the school day he would politely kiss his
same-age girlfriend (now his wife of twenty-five years) and then rush to
this experienced woman's bed? What about Y, who seduced her married
teacher when she was 17 and he 45, and who, thirty years later, has with
this same man one of the most loving unions I have ever seen? What about
Z, who as a youth regularly sought out the company of older men because,
apart from a sexual education, they offered him a safe place for
expression, a cultural home, a real home? The priest scandal, which
forecloses any attempt to separate vicious crime from pervy nuisance
from consenting encounter, has further limited the possibilities for
thoughtful discussion on the real things people do and feel, the causes
and effects and complex power exchanges of a human activity that does
not, and will never, operate according to the precepts of a textbook or
lawbook.

Another reason is that Levine's most bombastic critics had not read
Harmful to Minors before damning it. Dr. Laura, who called
on the University of Minnesota Press to stop the book's release, took
her cues from Judith Reisman, who declared Levine an "academic
pedophile." A longtime zealot in the trenches of the antipornography
cause, Reisman told the New York Times, "It doesn't take a great
deal to understand the position of the writer. I didn't read Mein
Kampf
for many years, but I knew the position of the author." Tim
Pawlenty, the Minnesota House majority leader and a Republican hopeful
for governor, also admitted to not having read the book before equating
the press's role in its publication with "state-sanctioned support for
illegal, indecent, harmful activity such as molesting children." Robert
Knight, a spokesman for Concerned Women for America who urged the
university regents to fire those responsible for publishing this "evil
tome," says he "thumbed through it." Knight, whose organization is
dedicated to bringing "Biblical principles into all levels of public
policy," might consider what, at a practical level, that might mean,
starting with Moses' commands to his warriors in the Book of Numbers:
"Kill every woman that hath known man by lying with him. But all the
women children, that have not known a man by lying with him, keep alive
for yourselves."

Still, I think Levine would be pilloried by Dr. Laura and her ilk even
without the priest scandal and even if she had ignored the subject of
sex across the age divide. For the pleasure principle she enunciates
challenges the twenty-five-year-old organizing strategy of the right.
Ever since Anita Bryant first demonstrated that a power base could be
built by attacking homosexuals, the right has exploited real anxieties
about sex, love and family to constrain the liberatory spirit, whether
expressed by sexual preference, divorce, abortion, contraception,
women's freedom or teen sex. This has not managed to send queers back to
the closet, lower divorce rates or "protect the children." American
teenagers have about four times the pregnancy rate of teens in Western
Europe. Those in a program of "abstinence only" education still have sex
and are about half as likely to protect themselves than kids who've
received broad sex information. Even with abortion rights severely
curtailed, US teenagers have abortions at about the rate they did just
after Roe v. Wade. One in four has had a sexually transmitted
disease; one an hour is infected with HIV; and, not incidentally, among
American children one in six is poor. That notwithstanding, the sex
panic strategy has succeeded in the only way it had to: creating a
movement, with all the institutions, political power, lawmaking
capability, grassroots presence and funding that implies, to advance an
agenda for everything from global dominance to bedroom snooping.
Levine's critics are all part of that project, and since she butts
against it almost from the opening pages of her book, they are striking
back.

What is more telling is who isn't rushing to the defense. While a group
of free-speechers, pro-sex feminists and radical gay activists have
generated press releases, opinion pieces, e-mail alerts and letters of
support to Levine's publisher, there has been silence from mainstream
feminist organizations and the liberal sex-education and child-health
establishments. That may be partly because they, too, have felt the
sting of Levine's criticism. Rather than build a countermovement to
insist on sexual freedom, she writes, such heavyweights as Planned
Parenthood, the National Campaign to Prevent Teen Pregnancy, ETR
Associates (the largest US mainstream sex-ed publisher), the National
Education Association, the Health Information Network and a host of
progressive sex educators tried to appropriate the "family values"
rhetoric of the right, joining in "a contest to be best at preventing
teen sex."

"The Right won," she writes, but the mainstream let it. Comprehensive
sex educators had the upper hand in the 1970s, and starting in the
1980s, they allowed their enemies to seize more and more territory,
until the Right controlled the law, the language, and the cultural
consensus.... Commenting on its failure to defend explicit sexuality
education during an avalanche of new HIV infection among teenagers,
Sharon Thompson [author of the engrossing book on sex and love among
teenage girls, Going All the Way] said, "We will look back at
this time and indict the sex-education community as criminal. It's like
being in a nuclear power plant that has a leak, and not telling
anybody."

Throughout the Clinton era those forces largely stood by as the most
sexually reckless President in memory signed a sheaf of repressive
legislation, acts with names like Defense of Marriage, Abstinence Only,
Personal Responsibility and Child Pornography Protection. The last on
that list, capping a legal trend that, as Levine says, "defined as
pornography pictures in which the subject is neither naked, nor doing
anything sexual, nor...is even an actual child," was recently struck
down by the Supreme Court. The second to last, also known as the welfare
bill, is up for reauthorization this year, along with its enhancements
of penalties for statutory rape and its policing of teen sex, motherhood
and marriage. As part of that bill the Clintonites fanned the notion
that minors were too young to consent to sex with an adult, while in
criminal law they eased the way for prosecuting children as adults and
jailing them as adults, in which circumstance consent usually isn't an
issue. To grasp the effect of liberal silence about Levine, it is
perhaps enough to recall one name: Dr. Joycelyn Elders, sacked by
Clinton as Surgeon General in 1994 for saying that masturbation is part
of childhood and it doesn't hurt to talk about it. Elders has written an
eloquent and sensible foreword to Harmful to Minors. Back when
Elders was twisting in the wind ABC's Cokie Roberts called her "a sort
of off-to-the-left, out-of-the-mainstream, embarrassing person"; now
the Washington Times insinuates she's soft on molestation. From
self-abuse to child abuse in eight years, one absurd charge prepares the
ground for the other.

That said, it's too easy to read the reception of Levine's book as
simply more evidence of right-wing lunacy and liberal retreat. What the
brouhaha also signals in its small way is a failure of the left. In
organizing around issues of sex, love and family, the right has surely
been cynical but at least it speaks to the deepest questions of intimate
life. Its answers are necessarily simplistic and straitened. The family
is falling apart? It's the homos. Marriage seems impossible? It's the
libbers. Sex brings suffering? Just say No. Love seems distant? Await
the Rapture. Except for a small group of queer radicals and pro-sex
feminists, to the extent that such questions are even entertained on the
left, the answers tend toward a mixture of social engineering and
denial: There's nothing wrong with the family that an equitable economy,
divorce or gay marriage won't fix. Marriage is possible; equality is the
key. If sex ed was better and condoms were free, teens wouldn't get
pregnant and wouldn't get AIDS. If abortion is painful, you've been
propagandized. If sex is painful, you're doing it wrong. If love is
painful, find a new lover.

Levine is too sensitive to the mysteries and complexities of human
relations to be characterized as advocating anything so pat as
happiness-through-policy in the area of childhood sexuality. But if her
putting children and sex together in the same sentence can be read by
the right as a call to licentiousness, her heavy emphasis on the
pleasure-enhancing possibilities of sex education may encourage readers
on the left to believe that kids can be protected from bad sex, mediocre
sex, regret, risk, danger, pain. And they can't, any more than adults
can. They can't because in matters of sex, desire is a trickster. What
you see isn't always what you get, much less what you want, though it
may be what you need. In matters of the heart, intimacy means
vulnerability means daring to bet against pain. As with all bets,
sometimes, often, you lose.

Levine actually makes this point but she so wants kids to have better
information, better experiences--and she argues so well and hard for
these--that somehow it gets lost. Citing a study showing that 72 percent
of teenage girls who'd had sex wished they had waited, Levine wonders
whether this regret isn't perhaps really about romantic disappointment
and asks, "Might real pleasure, in a sex-positive atmosphere, balance or
even outweigh regret over the loss of love?" Can we know pleasure
without pain? one might ask in return. Can regret over lost love, at any
age, be so easily balanced? Even sidestepping those twisting lines of
inquiry, isn't the promise of "real pleasure" as much a romantic ideal,
as much an invitation to disappointment, as the promise of true love,
especially for the young? However wished, it's not so easy to
disentangle sex from the hope for love, to revel in pure, transporting
sensuality without letting expectations, not to mention fumbling
technique, get in the way. It doesn't have to, and it doesn't always,
but sex can change everything between two people. We are weak,
after all, and life's little joke is that in that weakness lies the
potential for our ecstasy and our despair.

This isn't to discount the lifesaving value of open education about sex,
condoms, desire, freedom. (And because discussions like this always
force one to state the obvious, I'll also note that nothing in the
foregoing should suggest that I oppose equality, economic
redistribution, abortion rights, child safety, sexual liberation, the
search for love or, so long as heterosexuals insist on having the state
sanction their unions via the marriage contract, divorce and gay
marriage.) But rather than promise kids a world of good sex--like
promising a world of happy marriages, monogamous fulfillment,
self-sustaining nuclear families--maybe it's more helpful to explain sex
as the sea of clear water, giddy currents, riptides, sounding depths and
rocky shoals that it is. You navigate, find wonder in the journey,
scrape yourself up, press on anyway and survive. And sometimes,
sometimes, you experience a bliss beyond expression. The political job
is to expand the possibilities for such experience, to free people to
navigate, help them survive the hurt or not hurt so bad. Maybe if we
could be honest about sex, we could be honest about marriage and
monogamy and family. Maybe if so much didn't hinge on an outsized faith
in pleasure and fidelity and romantic love--if for people in couples or
families, everything didn't depend on the thin reed of love, and for
people alone, coupledom wasn't held out as the apex of happiness--all
the talk we hear about community might actually mean something. The
greatest virtue in Levine's book is its hope that children might learn
to find joy in the realm of the senses, the world of ideas and souls, so
that when sex disappoints and love fails, as they will, a teenager, a
grown-up, still has herself, and a universe of small delights and strong
hearts to fall back on.

Anyone looking for evidence that the death penalty should be
abolished need only look at the case of Zacarias Moussaoui, the
so-called twentieth hijacker, now on trial for his life for allegedly
b

The Jenin refugee camp's jagged concrete hillside of
homes-turned-into-graves has yet to yield all its secrets.

While it might appear to be sweet revenge for the Inquisition, it is
best to resist the impulse to burn some Catholic priests--and the
cardinals who covered up their criminal activities--at the

Some prestigious Wall Street firms may have been involved in a Ponzi scheme.

A long time ago I dated a 28-year-old man who told me the first time we
went out that he wanted to have seven children. Subsequently, I was
involved for many years with an already middle-aged man who also claimed
to be eager for fatherhood. How many children have these now-gray
gentlemen produced in a lifetime of strenuous heterosexuality? None. But
because they are men, nobody's writing books about how they blew their
lives, missed the brass ring, find life a downward spiral of serial
girlfriends and work that's lost its savor. We understand, when we think
about men, that people often say they want one thing while making
choices that over time show they care more about something else, that
circumstances get in the way of many of our wishes and that for many
"have kids" occupies a place on the to-do list between "learn Italian"
and "exercise."

Change the sexes, though, and the same story gets a different slant.
According to Sylvia Ann Hewlett, today's 50-something women
professionals are in deep mourning because, as the old cartoon had it,
they forgot to have children--until it was too late, and too late was a
whole lot earlier than they thought. In her new book, Creating a
Life: Professional Women and the Quest for Children
, Hewlett claims
she set out to record the triumphant, fulfilled lives of women in
mid-career only to find that success had come at the cost of family: Of
"ultra-achieving" women (defined as earning $100,000-plus a year), only
57 percent were married, versus 83 percent of comparable men, and only
51 percent had kids at 40, versus 81 percent among the men. Among
"high-achieving" women (at least $65,000 or $55,000 a year, depending on
age), 33 percent are childless at 40 versus 25 percent of men.

Why don't more professional women have kids? Hewlett's book nods to the
"brutal demands of ambitious careers," which are still structured
according to the life patterns of men with stay-at-home wives, and to
the distaste of many men for equal relationships with women their own
age. I doubt there's a woman over 35 who'd quarrel with that. But what's
gotten Hewlett a cover story in Time ("Babies vs. Careers: Which
Should Come First for Women Who Want Both?") and instant celebrity is
not her modest laundry list of family-friendly proposals--paid leave,
reduced hours, career breaks. It's her advice to young women: Be
"intentional" about children--spend your twenties snagging a husband,
put career on the back burner and have a baby ASAP. Otherwise, you could
end up like world-famous playwright and much-beloved woman-about-town
Wendy Wasserstein, who we are told spent some $130,000 to bear a child
as a single 48-year-old. (You could also end up like, oh I don't know,
me, who married and had a baby nature's way at 37, or like my many
successful-working-women friends who adopted as single, married or
lesbian mothers and who are doing just fine, thank you very much.)

Danielle Crittenden, move over! Hewlett calls herself a feminist, but
Creating a Life belongs on the backlash bookshelf with What
Our Mothers Didn't Tell Us
, The Rules, The Surrendered
Wife
, The Surrendered Single (!) and all those books warning
women that feminism--too much confidence, too much optimism, too many
choices, too much "pickiness" about men--leads to lonely nights and
empty bassinets. But are working women's chances of domestic bliss
really so bleak? If 49 percent of ultra-achieving women don't have kids,
51 percent do--what about them? Hewlett seems determined to put the
worst possible construction on working women's lives, even citing the
long-discredited 1986 Harvard-Yale study that warned that women's
chances of marrying after 40 were less than that of being killed by a
terrorist. As a mother of four who went through high-tech hell to
produce last-minute baby Emma at age 51, she sees women's lives through
the distorting lens of her own obsessive maternalism, in which nothing,
but nothing, can equal looking at the ducks with a toddler, and if you
have one child, you'll be crying at the gym because you don't have two.
For Hewlett, childlessness is always a tragic blunder, even when her
interviewees give more equivocal responses. Thus she quotes academic
Judith Friedlander calling childlessness a "creeping non-choice,"
without hearing the ambivalence expressed in that careful phrasing. Not
choosing--procrastinating, not insisting, not focusing--is often a way
of choosing, isn't it? There's no room in Hewlett's view for modest
regret, moving on or simple acceptance of childlessness, much less
indifference, relief or looking on the bright side--the feelings she
advises women to cultivate with regard to their downsized hopes for
careers or equal marriages. But Hewlett's evidence that today's
childless "high achievers" neglected their true desire is based on a
single statistic, that only 14 percent say they knew in college that
they didn't want kids--as if people don't change their minds after 20.

This is not to deny that many women are caught in a time trap. They
spend their twenties and thirties establishing themselves
professionally, often without the spousal support their male
counterparts enjoy, perhaps instead being supportive themselves, like
the surgeon Hewlett cites approvingly who graces her fiancé's
business dinners after thirty-six-hour hospital shifts. By the time they
can afford to think of kids, they may indeed have trouble conceiving.
But are these problems that "intentionality" can solve? Sure, a woman
can spend her twenties looking for love--and show me one who doesn't!
But will having a baby compensate her for blinkered ambitions and a
marriage made with one eye on the clock? Isn't that what the mothers of
today's 50-somethings did, going to college to get their Mrs. degree and
taking poorly paid jobs below their capacities because they "combined"
well with wifely duties? What makes Hewlett think that disastrous recipe
will work out better this time around?

More equality and support, not lowered expectations, is what women need,
at work and at home. It's going to be a long struggle. If women allow
motherhood to relegate them to secondary status in both places, as
Hewlett advises, we'll never get there. Meanwhile, a world with fewer
female surgeons, playwrights and professors strikes me as an infinitely
inferior place to live.

Alan Dershowitz prides himself on his credentials as a civil
libertarian, and to judge by most of the essays in his latest book,
Shouting Fire: Civil Liberties in a Turbulent Age, he has good
reason to do so. The Harvard law professor has built a considerable
reputation on his defense of free speech, due process and the separation
of church and state, to say nothing of his propensity for controversial
clients and clamorous talk shows. Shouting Fire is a pastiche of
fifty-four essays, some of them new, most of them not, the earliest
dating from 1963. The impetus for the collection appears to be at least
in part a desire to reassert the importance of civil liberties, even in
the face of such national security threats as those posed by the events
of September 11 and their aftermath. Moreover, Dershowitz admirably
offers what rights advocates rarely do: a philosophical grounding for
civil and political rights beyond the mere positivist assertion that
"that's the law."

If this were all Dershowitz had done in Shouting Fire, the book
might have received its share of kind reviews and headed off to
Remainderland. But in less than two of the book's 550 pages, he manages
to guarantee the collection a longer shelf life. For in an addendum to a
1989 article in the Israel Law Review, Alan Dershowitz, civil
libertarian, champion of progressive causes, counsel to human-rights
hero Anatoly Shcharansky, makes a case for torture or, more exactly, for
the creation of a new legal device that he dubs a "torture warrant." And
then, through a deft combination of newspaper editorials, public
appearances and an extended interview on 60 Minutes, Dershowitz
has expanded upon that proposition in a way designed to make talk of
torture routine and, not incidentally, banter about his book robust.

Dershowitz's proposal, therefore, deserves careful scrutiny, not only
because it comes from a respected voice but also because sources in the
FBI have floated the possibility that torture will be applied against
prisoners or detainees who refuse to tell what they know about
terrorists. Last October 45 percent of Americans approved of that.
Today, thanks to Dershowitz and others having lent the idea the patina
of respectability--Jonathan Alter writing in Newsweek, Bruce
Hoffman in The Atlantic--the number may be higher.

Dershowitz starts with the familiar scenario from every freshman
philosophy class, the case of the ticking bomb. Suppose the authorities
are holding a suspect who knows where a ticking bomb is located, a bomb
that will kill hundreds of people if it explodes. Would they be
justified in torturing the suspect to procure the information and
thereby save innocent lives?

Dershowitz contends that whether we like it or not, the officials would
inevitably resort to torture and, what's more, the vast majority of us
would want them to. But because any officer who did so might be subject
to prosecution, despite the availability of the common law defense that
a crime may be justified if it is necessary to prevent a greater evil,
the onus of responsibility should not be left on the individual
official. Instead the authorities should apply to a court for a "torture
warrant," similar to a search warrant, so that the courts must bear the
burden of authorizing torture or the consequences of failing to do so.
In another context Dershowitz has offered the reassurances that "the
suspect would be given immunity from prosecution based on information
elicited by torture" and that "the warrant would limit the torture to
nonlethal means, such as sterile needles being inserted beneath the
nails to cause excruciating pain without endangering life."

Despite these precautions, however, Dershowitz's proposal has not met
with universal acclaim, and in recent weeks he has appeared to be
distancing himself from it. In a February 17 letter to The New York
Times Book Review
responding to a critical review of Shouting
Fire
, Dershowitz claims that "the only compromises [with civil
liberties] I suggest we should consider, and not necessarily
adopt
, relate directly to protecting civilians against imminent
terrorist attacks [emphasis added]." But there is no hint on the two
relevant pages of Shouting Fire that Dershowitz's "torture
warrant" proposal is merely hypothetical. Indeed, in commenting on the
decision by the Supreme Court of Israel that prompted the idea in the
first place, he chastises the court for leaving interrogating officers
vulnerable to prosecution if they use torture and says, "The Supreme
Court of Israel...or the legislature should take the...step of requiring
the judiciary to assume responsibility [for torture] in individual
cases." Dershowitz is stuck with his "torture warrants" just as surely
as Arthur Andersen is stuck with its Enron audits.

So what, after all, is wrong with that--other than the fact that torture
violates both the Convention Against Torture, which the United States
ratified in 1994, and the Constitution? The first thing that is wrong is
that the act of torture, unlike that of searching for something, is in
itself both universally condemned and inherently abhorrent. Under
international law, torturers are considered hostis humani
generis
, enemies of all humanity, and that is why all countries have
jurisdiction to prosecute them, regardless of where the torture took
place. The fact that a US court or legislature might offer its approval
of the act does not abrogate that internationally recognized standard
any more than a court in Singapore that authorizes the jailing of a
dissident journalist makes Singapore any less guilty of violating the
rights of a free press. Tyrannical governments often try to cloak their
human rights violations in national statute. It is interesting, however,
that no country has ever legalized torture except, arguably, Israel,
until the Israeli Supreme Court struck down the provision for the use of
"moderate physical pressure," and even while that provision was on the
books, the Israeli government argued vehemently that such pressure was
not the equivalent of torture.

To see more clearly the shoals upon which the "torture warrant"
flounders, consider this. There is no doubt that despite official
efforts to eradicate it, police brutality is practiced in many US
jurisdictions and probably always will be. Some police officers will
claim, in their more candid moments, that the use of excessive force is
often the only way to protect the lives of officers and the general
public. Why ought the police not be able, therefore, to apply for
"brutality warrants" in specialized cases? Why ought police officers who
believe that a little shaving of the truth on the witness stand is worth
sending a bunch of drug pushers to prison, thus protecting hundreds of
youngsters from a life of drugs and crime, not be able to seek
"'testilying' warrants"? Why ought correctional officers who argue that
allowing dominant male prisoners to rape other prisoners helps preserve
order among thugs and thus protects the lives of guards not be allowed
to seek "warrants to tolerate prisoner rape" in particularly dangerous
situations? The answer in all cases is the same: because the act itself
(brutalizing citizens; committing perjury; facilitating rape) is itself
abhorrent and illegal. Dershowitz's analogy to search warrants fails
because, while a particular search may itself be illegal, the act of
searching is not ipso facto unethical or a crime. For a society
to start providing its imprimatur to criminal acts because they are
common or may appear to provide a shortcut to admirable ends is an
invitation to chaos.

But even if torture were a licit activity under some circumstances,
there are very good pragmatic reasons to reject its use. If the ticking
bomb scenario were designed only to establish the abstract moral
calculus that the death of X number of people constitutes a greater evil
than the torture of one, it would certainly be possible to make a
plausible utilitarian argument for torture. The problem is, however,
that the proponents of the ticking bomb scenario want it to serve as the
basis of public policy, and unfortunately reality rarely conforms to
scenarios and life doesn't stop where the scripts do. How strange that
though the ticking bomb scenario has been used for decades to justify
torture, its defenders are unable to cite the details of even one
verifiable case from real life that mirrors its conditions.

Perhaps, upon reflection, that is not so strange. For what the ticking
bomb case asks us to believe is that the authorities know that a bomb
has been planted somewhere; know it is about to go off; know that the
suspect in their custody has the information they need to stop it; know
that the suspect will yield that information accurately in a matter of
minutes if subjected to torture; and know that there is no other way to
obtain it. The scenario asks us to believe, in other words, that the
authorities have all the information that authorities dealing with a
crisis never have.

Even aficionados of ticking bomb torture agree that its use can only be
justified as a last resort applicable to those we know to a moral
certainty are guilty and possess the information we seek. That 45
percent of Americans who reported last October that they approved of
torture were approving of the "torture of known terrorists if they know
details about future terrorist attacks." But how do we know all that?
The reason torture is such a risky proposition is exactly because it is
so difficult to tell ahead of time who is a terrorist and who is not;
who has the information and who does not; who will give the information
accurately and who will deceive; who will respond to torture and who
will endure it as a religious discipline. The fact is that many people
suspected of being terrorists turn out not to be, as our experience
since September 11 has proven so well; that, historically, many of those
subjected to torture are genuinely ignorant of the details the
authorities seek; that the information protracted with torture is
notoriously unreliable; and that torture almost always takes a long
time--days and weeks, not hours and minutes--to produce results. Torture
is of course extraordinarily common. Almost three-fourths of the world's
countries practice it. But not to find ticking bombs. To punish
political opponents. To intimidate their allies. To cow a citizenry. The
ticking bomb scenario in its purest form is a fantasy of "moral" torture
all too easily appropriated by tyrants as an excuse to justify the more
mundane variety.

And if the ticking bomb scenario is a fantasy, the Dershowitzian
addition of a "torture warrant" makes it into a chimera. Here is a
situation Dershowitz envisions for the warrant's use:

Had law enforcement officials arrested terrorists boarding one of the
[September 11] airplanes and learned that other planes, then airborne,
were headed toward unknown occupied buildings, there would have been an
understandable incentive to torture those terrorists in order to learn
the identity of the buildings and evacuate them.

This assumes that those law enforcement officials would have had time in
the hour and a half or so between the boarding of the planes and the
impact on their targets to (1) take the suspects into custody; (2)
ascertain with enough certainty to warrant torture that the suspects
were (a) terrorists who (b) had the needed information in their
possession; (3) apply to a judge for a torture warrant and make the case
for one; (4) inflict torture sufficient to retrieve the necessary facts;
(5) evaluate the validity of those facts in order to be assured that no
innocent plane would be identified and blown out of the sky; and (6)
take the steps required to stop or mitigate the terrorist act. Perhaps
after John Ashcroft has been Attorney General another three years, law
enforcement will have learned to cut enough corners of the legal
niceties to accomplish this feat. But at the moment, given the INS, Tom
Ridge, bureaucratic infighting and all, it seems unlikely.

Which leads to the question of whether, if the United States were to
become the first country in the world to adopt "torture warrants," they
would make us safer. That, after all, is presumably the only ultimate
rationale for their use. But here is another place where the traditional
ticking bomb case explodes in the face of reality. For it assumes that
there are no further detrimental consequences once the victims of the
bombing are saved--no retaliatory strikes, for example, by the torture
victim's comrades to pay back the inhumanity done to their brother. It
doesn't take much imagination to see how quickly officially authorized
torture would diminish the credibility of a struggle against terrorism
that is being fought in the name of defending American values and the
rule of law. How many people would need to be tortured before our allies
threw up their hands in disgust and our adversaries started celebrating
their moral victory? How many innocent people would have to be
brutalized before their resentment and that of their friends and family
would spill over into violence? In his book No Equal Justice law
professor David Cole has shown how mistreatment of the innocent by US
police can alienate entire communities and result in increases in crime.
Torture, similarly, is a sure-fire way to manufacture an embittered
opponent of the United States where there was none before. And make no
mistake that innocent people would be tortured, warrant or no, for,
after all, if close to 100 innocent people have been convicted of
capital crimes and sentenced to death in this country despite all the
protection our legal system offers, how much more likely is it that
miscarriages of justice will flow from the pen of a single judge?
Whatever leadership the United States can claim in the world is
intimately linked to our practice of values universally regarded as
fundamental to a civilized people.

So how could a distinguished human rights advocate like Alan Dershowitz
have strayed so far from the mark? Part of it may have to do with the
philosophical basis for rights that he sketches in the beginning of his
book. Wisely rejecting the notions that rights are derived from deity or
natural law and yet unconvinced that positivism alone provides
sufficient heft for rights claims, Dershowitz adopts what he calls the
"experiential-advocacy approach." In effect, he says, we should look to
history to identify prototypical instances of injustice (slavery, for
example) and then, based upon that human experience, construct a set of
rights--free speech, due process--that are most likely to bring about
the type of society in which we would want to live. So far, so good.
Human rights are assuredly derived from human experience.

But what if you disagree with my vision of the good society? The best we
can do, Dershowitz insists, is to try to argue you out of your myopia:
"That is all I can do," he says. "Defend my preference for [certain]
rights.... But I make no claim for these rights beyond my ability to
persuade you to agree with me that history--especially the history of
wrongs--has shown these rights to be important enough to be given a
special status in the hierarchy of preferences. It may surprise you to
learn that for me there is no sharp line...separating rights from
strongly held preferences." It is here that Dershowitz stumbles.

For while rights are, in a sense, preferences, they are also more than
that: They are norms, behavioral norms necessary to create and sustain a
good society. And they become norms not through argument alone but
through its conclusions, through an articulated consensus of the
international community. One of the most astonishing lacunas in the
philosophical section of Shouting Fire is the absence of even one
mention, if the index and my reading are to be believed, of the
Universal Declaration of Human Rights. For while the UDHR did not set
out to be a legally binding treaty (the State Department called it in
1948 "a hortatory statement of aspiration") and hence avoids the limits
of positivism, it does reflect--imperfectly, to be sure, but as well as
possible within the current limits of human endeavor--what St. Augustine
called our "overlapping loves," our common measures of a decent world.
To those who disagree with its vision of that world, we can offer much
more than a shouting contest, much more than any one person's reading of
history or any one nation's perception of its needs. We can offer the
collective wisdom of the human community as hammered out, written down
and, more and more frequently, enforced. And part of that wisdom is that
torture is wrong. Everywhere. In all circumstances. With or without
warrants.

Alan Dershowitz may not like that. And he is certainly entitled to go on
arguing about it. He is a persuasive fellow and eventually he may even
succeed in helping erode the international prohibitions on torture. That
will be a sad day, no doubt, but how comforting it will be to know at
that point that, thanks to the professor, the needles will be
sterile.

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