Behind every act by the government there lies a guiding principle that
grounds the deed in either some ideological or moral setting.
And so, it serves as no surprise that behind President George
W. Bush’s decision to invade Iraq—the act which, above all, will linger
in people’s memories and determine his legacy—is an endorsement of the
ideology of preemption and preemptive warfare.
However, preemption differs from other ideological
underpinnings because it doesn’t as neatly cut across the partisan
divide—John Kerry did originally support the invasion, and Democrats
generally support humanitarian preemption.
Among many Democrats, the stock argument is that Bush made
his decision capriciously, and they remain unconvinced that he did his
due diligence when deciding that preemption was right in Iraq’s case.
But deciding when preemption is right or wrong is tricky
business and creating a universal formula is nearly impossible—at least
that’s what Frankfurter Professor of Law Alan M. Dershowitz argues in
his latest book, “Preemption: A Knife That Cuts Both Ways.”
While wisely refraining from offering a calculus for preemption, Dershowitz deftly attacks the issue.
He teams his characteristically deep historical understanding
with his reliable legal acumen to produce a forward-looking proposal
for the jurisprudence of preemption.
After looking at conflicts in Iraq, Israel, and Iran in light
of preventive foreign policy, Dershowitz finally offers a plan,
shifting the question from whether preemption is appropriate in the
first place to how we judge the results of preemptive policy in
hindsight.
And this is really what we need him for.
Dershowitz, considered one of the nation’s top legal minds, is
capable of applying legal precedent and practical application to
contextualize these international conflicts, far beyond our own
interpretations of news and speechs on foreign policy.
The real challenge for Dershowitz’s text is to distinguish
itself from his more than 20 other intellectual treatises and
publications.
Unfortunately, his legal analysis does not provide enough novel insight to make “Preemption” stand out.
The last section, and the book on the whole, is solid but not
extraordinary. Dershowitz crafted the book to be agreeable but not
risky, and as a result, “Preemption” fails to make any really lasting
statements.
Dershowitz is conscious of how fickle people are about preemption and how slippery the concept is itself.
He prefaces many of his substantive points by writing that a
categorical opinion or response to preemption is impossible and
foolhardy, and he constantly reminds us that there is no one right
answer.
With warnings against treating preemption as a “yes or no,
black or white, legal or illegal” and repeated assertions that a
jurisprudence cannot be created flawlessly in one try, Dershowitz is
resigned to treating this work not as a landmark treatise on preemption
but as a first building block.
In the end, the progressive tone to “Preemption” and its
recognition that it is part of an evolving literature on the issue
proves an asset. Dershowitz appropriately situates himself as a guide,
not an authority.
The book’s lucid and plain language matches its fundamental
nature as a guidebook and allows Dershowitz to walk the reader through
his own thoughts on preemptive policy in a methodical, unpretentious
way.
He knows that the concept is tough to grapple with and before
he can pontificate—which he rarely does here—he must first explain and
explore.
Dershowitz does suggest a baseline for deciding when
preemption is right. His sketch for a formula pits the seriousness of
an incident and its likeliness without preemption against the harm
caused by preemption and its likelihood of success.
This basic comparison allows governments to decide whether the harm itself outweighs the harms inherent to preemption.
But, “Preemption,” for its intentional caution and recognition
that it is not the final word on its titular topic, seems to be stuck
in purgatory.
Though Dershowitz needs to avoid sounding authoritative and
values discussion over definitive statement, “Preemption” seems doomed
to be forgotten.
While Dershowitz does roughly outline a plan and a
jurisprudential system, he himself calls it only “suggestive,” a rather
weak endorsement of one’s own work.
Rather than being a groundbreaking first work on the topic,
Dershowitz settles for just the “first work” part, serving up a dulled
analysis of what might have been a sharper knife.
—Staff writer Benjamin L. Weintraub can be reached at bweintr@fas.harvard.edu.
Preemption: A Knife That Cuts Both Ways
By Alan M. Dershowitz
W.W. Norton
Out Now
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