Sometimes when you read a long and detailed train of thought from a Scholarly writer often the pure dazzle of the dialog can conceal elements that on first pass seem reasonable. Let me illustrate, this example attempts to defend the creation of a special class of ‘detainees’ as in the case in Guantanamo.

The law should permit the targeting of individuals who are actively engaged in terrorist planning and actions, so long as it is highly likely that the target is an actual terrorist, that the number of likely civilian deaths is proportional to the likely civilian deaths that would have been caused by the targeted terrorists, and that there is no other alternative – such as arrest – that is feasible under the circumstances.

Lost in the equation of U.S. law are elements like, “innocent until proven Guilty” and the right “to face their accusers”. More fundamental is the lack of a vital element, ‘Subject Identification’, ‘Quality and source of Intelligence’, ‘qualification of identified terrorist target.’ and more important “Who is doing the definition and interpretation of the targeted terrorist. “. These are know as ‘Evidence’ and a trial by jury based upon evidence and the rule of law.

And while the “anachronistic laws” that this article seeks to repeal are mentioned, not once is it described why such laws exist in the first place. The laws that this professor Dershowitz would have you repeal are the ones that were put in place to prevent the burning of witches at the stake. They were to qualify the identification of witches and hence terrorists as well. The reduction of anyone to be identified into special classes goes to the heart of U.S. law.

The author goes on;

Anne Fitzgerald of Amnesty recently compared the alleged terrorists being detained by the US and its allies to the “disappeared” in Argentina during the Junta. The comparison is obscene. The disappeared in Argentina were mostly political opponents of the Junta, many of whom were tortured to death and dropped into the ocean from aircraft.

But then he does not defend the fact that ‘terrorist’ is an arbitrary label, and in it’s nature IS political! Anyone can be called a terrorist. With no evidence, how is this any different to what the Argentina government did?

And again about terrorist;

They cannot be held as POWs until the end of the war, because this is a war that will never end.

The real question is one he doesn’t ask, is this a real war? Mind you it’s being advertised as one, but other countries have been targets of terrorists before, and have never classified them as wars like the U.S. has. It wasn’t a war when Timothy McVeigh blew-up the federal building in Oklahoma, it was a terrorist act, but not a war. But further he does not mention the POW in relationship with evidence of a crime, or if they really were terrorist, in his own words ” A few wore ersatz uniforms; most did not. Some were just in the wrong place at the wrong time. ” So where is the evidence! This goes to the heart of the supreme court decision on Hamdan, that they cannot be denied a trial!

if Professor Dershowitz is really “America’s leading liberal lawyer” he needs to get his credientials renewed.