Taking the Stand

by Alan Dershowitz

  THE SECOND SIX MILLION

  The sad reality is that the inversion of the human rights agenda, especially at the UN, has needlessly cost many innocent lives. Since the time the world promised “never again” at the end of World War II and built a structure and jurisprudence designed to fulfill that important promise, another six million innocent victims of preventable genocides have been slaughtered while the world once again stood silent.

  Cambodia, Rwanda, and Darfur are just the beginning of the story. The UN has also failed to help desperate civilians in Burundi, the former Yugoslavia, Syria, and other countries. While ignoring the gruesome killings by the member states in its midst, the United Nations has focused its time and attention on a single country—Israel. Its constituent bodies—especially the General Assembly and the Human Rights Council—have condemned Israel more frequently and more harshly than all the other nations of the world combined.

  The UN’s obsession with Israel is not necessarily the only cause of its inaction on genocide, but it is certainly a contributing factor. Like all institutions, the United Nations has limited resources. When it dedicates so many of those resources to criticizing Israel, it decreases its ability to respond effectively to genocide. It is important to realize that the sheer amount of time the UN spends chastising Israel in one-sided and repetitive resolutions is also time not spent on preventing or at least condemning genocide.59

  What might have been if, during the Cambodian genocide, the General Assembly had passed a single resolution on the atrocities instead of wasting time debating whether Zionism was racism? How would the situation in Darfur have changed if during its 2006–2007 sessions, the General Assembly had once condemned the genocide in Sudan instead of passing nearly two dozen resolutions condemning Israel?

  One might dismiss the UN’s obsession with Israel, if the body’s failure to stop suffering was not so serious. The UN could have intervened more quickly and vigorously and saved millions of lives during ongoing genocides. It is a broken institution. Until it ends its obsession with Israel, the UN cannot be fixed. Even some of its top officials recognize this reality, but their hands are tied, because anti-Israel (and anti-American) countries constitute a majority of the UN membership, thus giving anti-Israel resolutions an automatic majority.

  The UN will remain a key facilitator—through its actions and inactions—of the tragic inversion of human rights that has characterized its work over the past forty years.

  The real victims of this inversion have not been Israel and other Western democracies that have been the specific focus of the UN condemnations. The real victims have been those willfully ignored by the UN, which has used its focus on Israel and other democracies as an excuse—a cover—for its malignant inaction against horrible human wrongs committed by the tyrannical regimes that control much of the UN agenda and give themselves exculpatory immunity from any UN condemnations or intervention. “Never again” has been turned into “Again and again and again.” The label of “human rights” has been used to promote human wrongs. Our heroes—Eleanor Roosevelt, René Cassin, Albert Schweitzer—should be turning over in their graves, as the shields they constructed to protect the helpless from oppression and genocide have been beaten into swords to be used to facilitate these human wrongs.

  Tragically, many, if not most, organizations that currently claim the mantle of “human rights” are part of the problem, not part of the solution. I refuse to allow these human rights pretenders to hijack and invert the honorable agenda of neutral and universal human rights. I will keep struggling until my dying day to return human rights to its proper place in the international community.

  CONCLUSION

  Closing Argument

  As I begin my second half century of law practice and teaching, I look back with nostalgia and a heavy dose of surprise at my life and career, even as I look forward to my remaining years. I try to prepare my students to be lawyers over their entire careers. And since the career of a lawyer now extends to a full half century, I must always think ahead to what our legal system will look like when my current students end their careers, around the year 2065, when they will reach the age I am at now. Some of my former students are now in the prime of their careers, and have many more productive years ahead. One example is Elena Kagan, who may still be serving as a justice of the Supreme Court close to the middle of the twenty-first century.

  I could not have asked for better from my first half century. I have accomplished far more than I could ever have anticipated, and I have had a more interesting life than I could ever have imagined, growing up as I did in an insular working-class neighborhood of Brooklyn. Like many children and grandchildren of hardworking immigrants, I have lived the American dream and experienced the passion of my times. I’ve been very lucky, at least so far. (I don’t want to give myself a kneina hura.)1 Like the fictional Zelig in Woody Allen’s great film of that name,2 I was privileged to have been present at many of the most important legal and political events that transpired during my adult life. For some I volunteered, for others I was solicited. Sometimes I was a direct participant, other times an active observer and reporter. I will try to summarize my role in the important legal and political developments in which I participated, and speculate about what the future may hold for our system of laws and justice.

  Oliver Wendell Holmes, Jr., viewed the role of the lawyer as a predictor of future legal decisions and trends.3 But the Talmud cautioned that prophecy ended with the destruction of the second temple and that he who tries to prophesy the future is either a fool or a knave.4 Or as a contemporary sage, Yogi Berra, put it: “Prediction is very hard, especially about the future.”5 I agree that prognosticating the future is a daunting challenge, but lawyers and law professors must confront it, because one of the most important jobs we have is to identify trends and to anticipate significant developments. I will try, therefore, with these cautions in mind, to extrapolate from the past what a lawyer writing fifty years from now might look back on.

  MY CURRENT LIFE

  Before I summarize my past and speculate about the future, let me say a word about my present life. I remain extremely active in every phase of my career. Here is a summary of the week during which I first wrote these words:

  On Sunday morning I was picked up by a limo and taken to the Bedford airport, where I boarded a private 747 jet owned by Sheldon Adelson, reputed to be one of the richest Jews in history and among the handful of wealthiest Americans. Although we could not be further apart politically—he is a conservative Republican who contributed tens of millions of dollars to the campaigns of Newt Gingrich and Mitt Ronney, while I am a liberal Democrat who campaigned for Barack Obama—we share a common interest regarding many Jewish matters, especially education. The son of a Boston cabdriver, Adelson has accumulated billions of dollars by building and running casinos in Las Vegas, Macao, and Singapore and has contributed much of his wealth to worthy charities. His jet, which was once owned by the sultan of Brunei, is a flying mansion, equipped with a bedroom, sitting rooms, a chef, and other appurtenances of wealth and glamour. I spent much of the trip conferring with Sheldon and his wife, Dr. Miriam Adelson, who is an expert in addiction and the psychological problems associated with drug dependency. As we were about to land, I was invited into the cockpit, where I saw the Hoover Dam and other sights on the approach to Las Vegas. Upon arriving I was taken to the Dr. Miriam and Sheldon G. Adelson Educational Campus and shown around. Then I was picked up by Larry Ruvo, who wanted me to see the brain institute that architect Frank Gehry had built in his father’s memory. Ruvo credits me with helping to get this project done, after the local university ran out of money and broke its agreement with him. I wrote a strong letter on his behalf, and the result was an arrangement with the Cleveland Clinic, one of the great medical institutions in the world. After touring the facility, I went to the Venetian Hotel, where I spoke on behalf of the Adelson Day School and was honored with a beautiful plaque made from Jerusalem stone. The s
tudents of the school presented me with a book of drawings that they had done in my honor, representing their views of justice. (Later that week, I passed the book around to the college students in my seminar on morality.) At 10 P.M., I was taken to the airport, where a smaller jet—a Gulfstream—was waiting to fly me back to New York, where I arrived at 5:30 A.M.

  Following a few hours of sleep in my New York apartment, I was picked up by a paralegal and driven to the women’s jail on Rikers Island, where I spent the morning conferring with my client Gigi Jordan, who is accused of murder. She killed her autistic son and tried to kill herself after learning that her child had been repeatedly abused, both sexually and physically, by his biological father, and after unsuccessfully seeking help from numerous government and social service agencies.

  After returning from Rikers Island, I was driven to Brooklyn College, where my legal and personal papers—more than a million of them in sixteen hundred boxes—were being opened for public viewing. I am contributing all of my papers to my alma mater. I made a talk about the papers and my experiences at Brooklyn College to a crowd that included my wife and sons, old friends, classmates, current and former faculty members, and current students. It was a thrilling experience for me to go back more than half a century to the college that meant so much to me and to express my appreciation to people who so influenced my life.

  On Tuesday I appeared in New York State Supreme Court on behalf of my client Gigi Jordan and made arguments in preparation for her trial. Following that court appearance, I boarded the Acela train and went home for a good long night’s sleep.

  On Wednesday morning I met with the chief prosecutor of the International Criminal Court, Luis Moreno Ocampo, for breakfast. He had invited me to discuss with him the then-pending application of the Palestinian Authority to be recognized as a state by the International Criminal Court, in order to bring charges against Israel for the war in Gaza and for building settlements in the West Bank. We had a long and fruitful discussion.

  I then went back to the law school, where I prepared for my first class of the day—a Legal Ethics course from 1 to 3 P.M. Before class I had a short lunch in the faculty dining room, where I sat with an old friend, Michael Boudin, who is a judge on the U.S. Court of Appeals for the First Circuit and an adjunct member of our faculty. The first half of the Legal Ethics class was devoted to discussing the difficult problem of what a lawyer should do when a client gives him physical evidence the possession of which itself might be a crime. Such evidence might include videos of child pornography, stolen goods, or other contraband. We considered a case where a legal aid lawyer had been told where his client buried the body of a college student he had murdered, and the murder was not known to her parents or to the police. We also discussed the Joe Paterno case, which was then in the news and which raised questions regarding obligations to report serious misconduct.6 During the second hour, Prosecutor Ocampo made a brief appearance in the classroom to discuss ethical problems faced by international prosecutors. The class ended with a discussion about the scope of confidentiality and what a lawyer should do if his client claims innocence and would like to testify as to his innocence, but the lawyer firmly believes that he is guilty.

  Following that class I spent an hour preparing for my next seminar, which was for a class of freshmen at Harvard College. The subject was “Where Does Your Morality Come From?” and we discussed the moral limits on spying and other forms of subterfuge directed against enemy countries.

  Straight from class I went to the Huntington Theater, where I had been asked to comment on a play about the capture of Adolf Eichmann.7 I spent about an hour on the stage speaking and responding to questions from the director and the audience about the legal issues growing out of the capture and trial by Israel.

  Thursday was essentially my day of rest. I spent the day writing several short articles and doing research and writing on several pending projects, including this book. Thursday night was my only night of the week at home with my wife, and we spent it watching a silly but entertaining movie called Crazy, Stupid, Love.8

  Friday began with my annual checkup at my doctor’s office, followed by lunch with Peter Norton, developer of the Norton antivirus software. I met him and his wife, Gwen, for lunch at the Harvest, where we discussed, among other things, the use of computer viruses against the Iranian nuclear threat. After lunch, I received an e-mail from a lawyer representing Seif Qaddafi, who had just been apprehended by the Libyans. He wanted me to represent Qaddafi in the International Criminal Court and to negotiate for him to be tried in The Hague rather than in Tripoli. I asked for more information before making a decision. I spent the rest of the afternoon working on writing projects and then went back to the law school at 6:30 P.M. for a Shabbos dinner sponsored by Chabad and the Jewish Law Students Association. I am faculty advisor to both of those organizations, and I gave a brief talk at the beginning of the dinner. My wife and I then attended a concert at Sanders Theater.

  The next morning, I flew to Washington, D.C., to be a keynote speaker at an event sponsored by Iranian dissidents. The other speakers included former secretary of homeland security Tom Ridge, former chairman of the Democratic National Committee Howard Dean, former congressman Patrick Kennedy, and several other former and current government officials. I then took the train back to New York, where I was hoping to attend the Metropolitan Opera. But I was too tired, and I went back to my apartment and ended the week by falling asleep at about 10 P.M. My wife was proud of me for acknowledging my limitations, saying that five years earlier, I never would have been willing to miss anything because of being tired. A friend, who is a psychoanalyst, has labeled my affliction “FOMS”—“fear of missing something.” I plead guilty to that diagnosis.

  Nor was this event-filled week unusual. Two weeks later, my wife and I were off to Israel, where I received the Begin Prize for my “contributions to the Jewish people” and gave several lectures in Jerusalem and Tel Aviv. During my visit to Israel, I flew to Paris for a talk and to The Hague on a human rights matter. Then I went back to Israel for a conference and meetings with the prime minister and other government officials. I spoke at an economic conference, and was followed by Netanyahu, who began his speech with the following words: “First off, I would like to congratulate the Globes Conference for its foresight in inviting Alan Dershowitz, and I would like to say to Alan: Israel has no greater champion and the truth has no greater defender than Alan Dershowitz.” Shortly after those words were broadcast on Israeli television, President Obama called me on my cell phone, and we had a substantive discussion regarding Iran’s efforts to develop nuclear weapons. He invited me to continue our discussion at the White House, which I did several weeks later.

  Following my visit to Israel, my granddaughter joined us in Vienna for a few days of opera and strudel, followed by a visit to Prague as guests of the U.S. ambassador, a speech at a Czech university, a tearful visit to the church in which the body of Václav Havel, who had just died, was lying in state, and the lighting of Chanukah candles at the U.S. embassy.

  I don’t know how long I will be able to keep up this pace. I am now teaching only in the fall semester at Harvard Law School, though I generally squeeze four or five separate courses into that one semester. During the semester in which I am writing these words, I am teaching a large course, Professional Responsibility: Tactics and Ethics in Criminal Cases; a seminar with Dr. Alan Stone on “Justice and Morality in the Tragedies of Shakespeare”; a seminar with Larry Lucchino on “The Law of Baseball”; a freshman seminar at Harvard College on “Where Does Your Morality Come From?”; and a reading group on “Writing for the General Public About Legal Issues.” At the end of the fall semester in December, we move to South Beach, where I write, lecture, and consult on cases. I am trying to accept fewer commitments, but I find it hard to say no to interesting offers (FOMS?). I also cannot remain passive in the face of injustice and bigotry, which appear to be on the increase. I still love a tough challenge and we
lcome a good fight. I hate to lose and I never give up.

  If past is prologue,9 my approach to life—living the passion of the times—will not change. But nature has its claim, and physical energy inevitably abates and requires choices and priorities. My priorities will continue to be determined by the seriousness of the wrongs that need to be challenged by rights.

  Since the theme of this book is change—change in the freedom of expression, change in the way homicides and rapes are prosecuted and defended, change in the nature of media coverage of high-profile cases, change in attitudes toward race, change in the relationship between religion and government, change in the uses and misuses of “human rights,” and change in the way law is taught and learned—it is appropriate to end with changes I have experienced in my own personal and professional life over the years and changes I expect to experience in the years to come.

  MY EVER-CHANGING LIFE

  The questions I am most often asked by others—and sometimes by myself—are about significant changes in my life and why they occurred. Going back to my teen years, why did I change, within a few short months, from a C and D student in high school to an A+ student in college and law school? The change was dramatic and sudden—literally over the summer of 1955, between high school and college, between the ages of sixteen and a half and seventeen. What happened in those few months to change me from being last, or close to last, in a class of 50, to being at the top of a highly competitive college class of 2,000, and then first in a class of 170 even more competitive students at Yale Law School? Was it me who changed, or was it the schools?

  It was both. I think I had begun to change during my last year in high school, but my reputation among the faculty was so firmly established and so negative that teachers simply couldn’t see past it. Even when I got A grades on the statewide Regents exams, the teachers gave me Cs and Ds as semester grades. My occasionally intelligent classroom comments were taken as “wiseass” remarks. Some of my teachers even thought I must have cheated whenever I got a good grade on a test. So I doubt it was possible for me ever to shine in a high school where my favorite teacher insisted that I was “a 75 student” and would always be “a 75 student.” (I didn’t quite live up to his expectations, graduating with an average below 75.)