CORRECTION APPENDED

Two Harvard Law professors have stepped into the contentious debate about targeted killings in a pair of recent Boston Globe op-eds that appeared less than a week apart.

The first, by Frankfurter Professor of Law Alan M. Dershowitz, was prompted by the release of Steven Spielberg’s film “Munich,” which portrays Israel’s efforts to avenge the murders of 11 Israeli athletes at the 1972 Olympic Games by the terrorist group Black September.

The other piece, by Smith Professor of Law Martha L. Minow and Amos N. Guiora of Case Western University, was written as a reaction to a failed attempt by the U.S. military to kill Ayman al-Zawahri, Osama bin Laden’s top deputy, in Pakistan earlier this month.

In his Jan. 16 op-ed, Dershowitz attacked Spielberg’s film for what he saw as its confusion about the causes of terrorism. Dershowitz wrote that Spielberg attempts to link the Israelis who tracked and killed the Black September terrorists and future terror attacks against Western nations, and that Spielberg was mistaken in his suggestion that the “counterterrorism only incites more terrorism.”

“The trouble with this ‘cycle of violence’ perspective is that it confuses cause and effect,” Dershowitz wrote in the op-ed. “The period immediately preceding Munich was plagued by airline terrorism [and]...this long pattern of high-publicity, low-risk hijackings is what encouraged Black September to up the ante by infiltrating the Olympic Village in Munich.”

Dershowitz continued that “terrorism works because it is successful, and success begets repetition.” This idea forms the basis of his 2002 book “Why Terrorism Works,” a book that drew fire from many civil libertarians because it advocated torture of terror suspects in certain instances.* [SEE CORRECTION BELOW.] 

Though Dershowitz never actually called for targeted killings, he devoted much of his article to defending Israel’s assassination of the Black September attackers and arguing that attempting to arrest them would not have been successful. He pointed out that several nations had freed hijackers—instead of extraditing them to Israel or the U.S.—in the years before the attacks, and that Germany released the surviving Black September terrorists less than two months after Munich.

“It was the German decision to free these killers to kill again that strengthened [former Israeli Prime Minister] Golda Meir’s resolve to take steps necessary to protect her citizens,” Dershowitz wrote.

The day before his piece appeared in the Globe, Dershowitz wrote a similar op-ed in The Baltimore Sun in which he made the same arguments regarding “the cycle of violence” and why having European countries arrest and extradite the terrorists would not have been successful. In the Sun piece, however, Dershowitz also attacked what he saw as the film’s “one-sided political view” and insinuated that the film’s screenwriter opposes Israel’s existence.

Though Minow and Guiora do not state whether they agree with Dershowitz’s view that states can legitimately engage in targeted killings, they argue the U.S. has utilized the strategy in a clumsy and uncoordinated manner.

The professors began by stating that the attack in Pakistan—which did not kill al-Zawahri but killed several al Qaeda operatives and at least 13 civilians—could damage the U.S.’s reputation and its interests in the region.

“The short-term and long-term harm to the U.S. military is clear,” they wrote. “The seemingly botched job, with five children among those killed, increases the risk of revenge to U.S. soldiers should they be captured.”

The professors then outlined a five-point system that they wrote should be employed if the U.S. were to adopt a policy of engaging in targeted killings. Their proposal included using comprehensive intelligence gathering, employing the “highest technical skill” to minimize collateral damage, relying on “rigorous and independent” legal counsel, creating realistic analyses of the impact of targeted killings on U.S. foreign policy as a whole, and integrating of all of the above approaches into a unified policy.

The professors concluded that the U.S. needs to have a debate to determine whether it supports a policy of targeted killings, and that if it does, it should adopt a system with stringent safeguards and full coordination.

“Unlike Israel—which has clearly approved targeted killings based on a sophisticated, integrative process,” the professors concluded, “America is still struggling with whether to approve this kind of strategy.”

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.

CORRECTION

The January 23 news article "HLS Profs Weigh in on Targeted Killings" stated that a 2002 book by Frankfurter Professor of Law Alan M. Dershowitz "drew fire from many civil libertarians because it advocated torture of terror suspects in certain instances." While critics of Dershowitz have made those claims, the article should have noted that Dershowitz' book, "Why Terrorism Works," does not recommend torture. And Dershowitz has stated publicly, including in The Scottsman newspaper in May 2004, that he is "personally opposed to torture."

This issue is sufficiently nuanced as to require further clarification. In the 2002 book, Dershowitz considers a scenario in which a democratic government captures a terrorist who "knows or probably knows the location of a number of bombs...set to go off within the next twenty-four hours." Dershowitz wrote that the government could "forgo any use of torture and simply allow the preventable terrorist act to occur." But he acknowledged that such an approach would provoke "a great outcry in any democracy," and that in such a scenario, the United States probably would find a way to facilitate the torture of the suspect. He writes: "The real issue, therefore, is not whether some torture would or would not be used in the ticking bomb case -- it would. The question is whether it would be done openly, pursuant to a previously established legal procedure, or whether it would be done secretly, in violation of existing law."