A lawyer cannot be trusted to present the facts of a client’s case objectively. That’s the nature of being a lawyer: You’re not supposed to examine the facts as neutrally as you can, and present them in the fairest possible light. You’re supposed to spin them in the way that most helps the individual you work for. If we are trying to get to the truth of what happened in a case, we certainly do not just ask the defendant’s lawyer. A lawyer and a scholar have different motives. The lawyer is biased. They are on a quest to win rather than a quest for truth. They may make the opposing case look much weaker than it is. You shouldn’t trust what they say until you’ve verified it independently.
It is helpful that Alan Dershowitz has called his newest book Defending Israel: The Story of My Relationship With My Most Challenging Client. Dershowitz is up front about seeing his relationship with Israel as that of lawyer and client. He says that he considers himself “Israel’s ambassador to the Jews of America,” a position Benjamin Netanyahu asked him to assume for himself. The book is not uncritical of Israel, but any lawyer knows that criticizing your client can be a way of creating the appearance of independence while burying crucial truths. (In fact, Dershowitz frequently emphasizes how critical he is of some aspect of Israeli conduct even while minimizing how bad the conduct was, as when he says he is critical of Israel for its “failure to prevent” the Sabra and Shatila massacre while declining to present the facts of what failure consisted of. In this way, he makes his audience think he is being—if anything—excessively critical of Israel, because criticizing them for failing to prevent someone else’s massacre seems so harsh. Dershowitz’s stance as a “critic” of Israel—e.g., making a big deal of opposing the settlements while not actually discussing the facts on the ground that make the settlements so objectionable, is a major part of what makes his writing dishonest.)
Alan Dershowitz is one of the world’s most famous lawyers. He is also probably one of the best. If you’re a billionaire accused of serially raping minors, he’s the guy who can get you a non-prosecution agreement and 13 months of “work release” in your own office. Dershowitz is uncommonly talented as an advocate, which is why famous scumbags so often turn to him for help. If I was accused of a hideous crime, and I was told I could have Alan Dershowitz as my lawyer, I would thank my lucky stars.
Dershowitz is as impressive a lawyer for Israel as he is for wealthy men with illicit sexual habits. Defending Israel is a forceful personal story of many decades spent sticking up for a land and people he loves, and fighting an uphill battle against the forces of bigotry and hatred that have poisoned public opinion. He is outraged by the unjust criticism directed against this great nation: “Despite its lawful birth certificate, and its unparalleled contributions to humankind since its birth, and its successful efforts to defend itself within the rule of law, it is the only nation in the world whose legitimacy as a nation is questioned—by other nations, by academicians, by international organizations and even some ‘religious’ leaders.” He concludes with a rousing plea to fellow Jewish people: “We must determine our destiny, write our future history, and assure the survival of the Jewish people and its nation-state forever.”
Dershowitz is effective at appearing both moderate and scholarly. His 2003 book The Case For Israel responds point by point to 32 accusations made against the country (e.g., “Was the Israeli occupation without justification?” and “Has Israel denied the Palestinians statehood?”), and is loaded with quotations and endnotes. The Jerusalem Post said the evidence presented was “overwhelming… a must read for American Jews, particularly those on college campuses who have no inkling of how to counter the massive verbal assault on Israel… A profound contribution to a country now in dire straits.” If Defending Israel and The Case For Israel were the only material one had read about the Israel-Palestine conflict, and one didn’t scrutinize the arguments carefully, one could come away firmly convinced that Israel’s critics were making spurious charges and unfairly targeting the country.
Because Dershowitz is so effective, I think it’s crucial to show clearly and convincingly that nothing he says about Israel can be trusted. Much of what he says is simply untrue. By constructing a distorted picture of the Israel-Palestine conflict, and spreading this propaganda widely in bestselling books, Dershowitz has done terrible damage to the cause of international human rights.
* * * *
Since “Alan Dershowitz should never be listened to again on the subject of Israel as his opinions are very likely to be nonsense/lies” is a strong allegation, let me first present a few very clear-cut cases: torture and the indiscriminate killing of civilians.
In The Case For Israel, one section addresses the question “Does Israel Torture Palestinians?” The accusation he will be responding to, he says, is: “Israeli law authorizes the torture of Palestinian detainees, and Israeli authorities persistently engage in torture.” We can already note a bit of goalpost-shifting here, because of that word “persistently” and the introduction of the far less relevant question of whether torture is “authorized” explicitly by law. We need to keep in mind that the original question was: Does Israel torture Palestinians?
Here are the points Dershowitz makes in rebuttal:
- In 1999, the Israeli Supreme Court ruled that “not only is torture absolutely prohibited but even the types of physical pressure currently being used by the United States… are prohibited by law, even in cases in which the pressure is used not to elicit a confession but [to prevent an imminent terrorist attack.]”
- Torture of this prohibited kind is common in “Egypt, Jordan, Morocco, Saudi Arabia, the Philippines, and other Muslim countries” as well as being practiced by the U.S. The bulk of Dershowitz’s argument consists of contrasts between the Israeli Supreme Court’s anti-torture decision and the jurisprudence of the United States on the subject, in order to show that Israel is a far greater respecter of the rights of detained suspects. He writes of the U.S. practice: “A Western intelligence official described [U.S. tactics like forcing detainees to stand naked in the cold] as ‘not quite torture but about as close as you can get. There have been at least two deaths and seventeen suicide attempts attributed to these interrogation tactics. When Israel has employed similar although somewhat less extreme tactics, they were universally characterized as torture without even noting that they were nonlethal and did not involve the infliction of sustained pain… Whether the procedures previously used by Israel and currently used by the United States constitute torture, the Supreme Court of Israel has now outlawed them.”
I am sure you have noticed that none of this is responsive to the original question “Does Israel torture Palestinians?” It deflects our attention away from that question, to focus on the Bush-era United States. (If you’re defending your interrogation tactics by putting them against those of the Bush administration, buddy, you’ve got a problem.) In fact, Dershowitz leaves open the question of whether Israel has in fact tortured many Palestinians (“Whether the procedures previously used by Israel…”), not even addressing it. He just says: Well, now it’s illegal.
If we are to try and answer the original question, we have to deal with the voluminous evidence showing that Israel tortures Palestinians. B’Tselem, the Israel Information Center for Human Rights in the Occupied Territories, says that the Israel Security Agency “routinely used methods that constituted ill-treatment and even torture until the late 1990s.” Then came the ruling Dershowitz cites, which did indeed make torture illegal… in theory. However, it also contained an exception, and “held that ISA agents who exceed their authority and use ‘physical pressure’ may not necessarily bear criminal responsibility for their actions, if they are later found to have used these methods in a ‘ticking bomb’ case, based on the ‘necessity defense.’” Of course, that creates one of those Loopholes You Could Drive A Truck Through, and B’Tselem says that while reports of torture did decrease after the ruling, “ISA agents continued to use interrogation methods that constitute abuse and even torture” and “these methods were not limited to exceptional cases and quickly became standard interrogation policy.”
Or take it from this 2011 report, issued by Physicians for Human Rights—Israel and the Public Committee Against Torture in Israel. Up until the Supreme Court’s ruling in 1999, Israel “routinely employ[ed] methods which amount to torture and ill-treatment.” After the Court’s ruling, torture still occurred and was still sanctioned by law:
[A]longside the absolute nature of the prohibition on torture as presented above, the Court ruled that ISA interrogators who employed physical means of interrogation in order to save human life could, if brought to criminal trial, avail themselves of the ‘necessity defense’… The Court went further, adding that the Attorney General was authorized to set the guidelines with regards to the circumstances under which interrogators who ostensibly acted out of necessity would not be brought to trial… [T]he Attorney General has interpreted this authority broadly, and prepared a document essentially granting a priori permission for these same interrogation methods. This document became one of the central tools upon which the approval of torture in Israel is based… [A]longside the very proclamation of an absolute prohibition against torture we see the creation of structures enabling the retroactive authorization of torture by means of the law enforcement system…[Indeed, testimonies reveal] the systematic use of interrogation methods which amount to torture or ill-treatment… [N]ot only do torture and ill-treatment continue to be implemented in interrogations, they also continue to receive the full institutional backing of the state.
Oh, and by the way, the Court has even begun sliding away from the supposedly absolute prohibition on torture. As one Israeli legal scholar concluded, “It is as if the court is telling us that it is cute that we thought there was a firm prohibition on torture, but that we should have known: that was never the case.”
In fact, we have first-person testimonies available from Palestinians subjected to Israeli interrogations. Here’s one:
All four interrogators in the room slapped my face every time I denied the suspicions against me… The Major told me that he was going to go out of the room for ten minutes, and if I didn’t talk when he came back, he would beat me. He came back after ten minutes, and when he realized that I didn’t want to talk, he released my handcuffs from the ring behind the chair, but kept my hands cuffed behind my back. Then he lifted me out of the chair, threw me on the table, and beat me with his fists and palms while I was lying with my back on the table. Then he lifted me off the table and kicked all over my body.
At first, the interrogation only included cursing, insults, and threats to arrest my mother and wife. Then they started to slap the back of my neck. One of the interrogators told me that I hadn’t seen anything yet. I told him that my back was hurting because of the beating I got from the soldiers who arrested me. He asked me precisely where it hurt, and I told him it hurt on the left-hand side of my waist. Then he kicked me right on that spot. I screamed in pain.
Of course, Dershowitz would probably discount Palestinian testimonies, since Palestinians are depicted in his books as violent, manipulative, and untrustworthy. Here, then, is an article in the Israeli newspaper Haaretz in which one of the interrogators themselves describes the use of physical abuse where the “goal is to hurt sensitive organs like the nose, ears, brow and lips.” Israel just no longer uses the extreme methods that were deployed on Palestinians for decades before the Court ruling (e.g., “a sudden, violent shaking of the subject’s upper body, causing the subject’s brain to strike the inside of his skull”).
That’s progress, of course, from a very shameful starting point. But the answer to the original question, “Does Israel torture Palestinians?” is: Yes. Israel tortured Palestinian detainees for many years before 1999. In 1999, the Supreme Court prohibited torture, but carved out an exception, and torture continued. Since then, many more Palestinians have been tortured. Israel tortures Palestinians to this day. The only way Dershowitz can avoid this conclusion is to avoid the question and answer a different one. We ask if Israel tortures, he replies that the Supreme Court prohibits torture. Already here I think you have definitive proof: Alan Dershowitz, because he sees himself as Israel’s lawyer, will not present the facts honestly.
Next, let’s look at Dershowitz on the question of civilian deaths. It is an uncontroversial fact that many more Palestinians than Israelis have died in the Israel-Palestine conflict (for every 15 people killed in the conflict, 13 are Palestinian and 2 Israeli.) In order to make the case for Israel, it is necessary to explain away many Palestinian deaths. Dershowitz does this by repeatedly emphasizing that while Palestinians kill deliberately, Israelis kill inadvertently and there is a “fundamental difference between deliberately targeting civilians and accidentally killing civilians” and so “two dead civilians are not morally equivalent if one was targeted for murder, and the death of the other was the unfortunate consequence of best efforts, including risks to one’s own soldiers, to prevent the murder of civilians.”
Let’s look at one example of Dershowitz explaining away the killing of hundreds of civilians: the nearly 200 deaths and 28,000 injuries in Gaza resulting from Israel’s use of live ammunition on protesters. Here is how the events are described in Defending Israel:
In 2018 and 2019, Hamas sent thousands of civilians, including young children and mothers carrying babies, to the fence adjoining Israeli population centers. Their goal was to break down the fence and attack Israeli civilians. Inevitably, some Palestinian children were killed and injured. The media responded precisely as Hamas intended. I tried to warn the world—in my book and media appearances—that unless Hamas’s dead baby strategy is denounced and stopped by the international community, the media, the academy and good people of all religions, ethnicities and nationalities, it will be “coming soon to a theater near you.” Hamas repeatedly employs this despicable and unlawful strategy because it works.
This is remarkable. Dershowitz provides no support for the claim that the protesters were trying to “attack Israeli civilians.” Read the reports on the shootings by B’Tselem and the U.N. Human Rights Council, which offer evidence and testimony and conclude that many of the people shot were unarmed demonstrators, plus bystanders including journalists and paramedics. This did not occur in the midst of some battle. They were shot by Israeli snipers from afar. In fact, Israel admits that it was willing to shoot unarmed demonstrators. Here’s B’Tselem:
Even after details of what took place on the first protest day emerged – mostly video footage of live fire at civilians endangering no one and standing far from the fence or moving away from it – and despite growing international criticism of the military’s open-fire policy, officials stated that the orders would not be altered. The IDF Spokesperson declared that “anyone taking part in the violent demonstrations is putting himself at risk”. In a similar vein, Defense Minister Avigdor Lieberman said that “We have defined the rules of the game clearly, and we do not intend to change them. Anyone trying to approach the fence is putting their lives at risk.”… Israel’s position that it may use live and potentially lethal fire against unarmed demonstrators who are endangering no one undermines every moral principle, contradicts the provisions of international law and is unlawful.
Dershowitz says that these deaths were “inevitable.” They were only inevitable because Israel has a policy of sniping unarmed Palestinians who get too near the Gaza fence—and in practice sometimes shoots people who are quite far away from it. (I have previously gone through and explained why defenses of these killings fail and presented some of the horrifying facts of what actually happened.) Dershowitz’s portrayal of the events is disgusting: ignoring all the evidence that Israel used excessive force, and citing nothing, he asserts that the demonstrators were all sent by Hamas, that they were intent on murder, that their deaths were inevitable, and that Palestinians were happy to have their children die because of their “dead baby strategy,” and media coverage of these deaths enables terrorists. There is barely even an argument here. It’s just pure propaganda, ignoring all of the accounts of journalists and human rights organizations that covered the events. Dershowitz’s assertion that Israel kills civilians inadvertently rather than deliberately is wrong: They killed Gaza protesters on purpose, because it was more convenient and less risky than apprehending them and very little value is placed on Palestinian lives.
You cannot trust a word Alan Dershowitz says. I want to shout that over and over. I am not an expert on Israel-Palestine, but you don’t need to be in order to understand this: All you need to do is check his endnotes, look up his sources, and be appalled by how he misrepresents what they say. Consider this passage from The Case for Israel:
“In 1937, the Peel Commission recommended a partition plan by which to resolve what it characterized as an ‘irrepressible conflict… between two national communities within the narrow bounds of one small country.’ Because of the general hostility and hatred of the Jews by the Muslims, ‘national assimilation between Arabs and Jews is… ruled out.’”
Now, look up the part of the Peel Commission report from which Dershowitz draws the quote:
“Arabs and Jews might possibly learn to live and work together in Palestine if they would make a genuine effort to reconcile and combine their national ideals and so build up in time a joint or dual nationality. But this they cannot do. The War and its sequel have inspired all Arabs with the hope of reviving in a free and united Arab world the traditions of the Arab golden age. The Jews similarly are inspired by their historic past. They mean to show what the Jewish national can achieve when restored to the land of its birth. National assimilation between Arabs and Jews is thus ruled out.” (370-371)
The report’s conclusion was not that Arabs were just too full of anti-Semitic hatred to coexist with Jews, but that each side had nationalistic aspirations and couldn’t accept the presence of the other. This is typical. Every time you check his endnotes, you find that there’s much more to the story than Dershowitz presents. Witness, for example, Dershowitz’s recounting of the infamous Deir Yassin massacre of 1948:
Now, we can look at the account of the massacre provided by Israeli historian Benny Morris, on whom Dershowitz extensively relies. Morris’s portrayal is quite different:
Dershowitz says that when “the fighting was over,” 100 to 110 Arabs were dead, and portrays it mostly as a heat of battle situation. He even has the audacity to blame the killing of the women on Arabs, suggesting it was just self-defense because soldiers impersonated women. Morris makes clear that this was, in fact, a massacre, with people being murdered after being taken prisoner.
I could go on for page after page after page with examples of ways in which Dershowitz spins every piece of evidence, misrepresenting even the mainstream scholarship of Israeli historians, to portray Arabs as bloodthirsty and aggressive, and Israelis as pure-hearted victims acting only in self-defense. (Particularly ugly is his suggestion that Arabs just hated Jews and wanted to deny them a state out of spite, without noting that Arabs quite correctly feared the ultimate plan was to expel the Arab population and seize all of historic Palestine.)
I could go on, but fortunately I do not have to go on, because Norman Finkelstein has done it for me already.
* * * *
Alan Dershowitz’s books contain a great many denunciations of one Dr. Norman G. Finkelstein. (The Case Against Israel’s Enemies mentions him on pages 13, 44-45, 54, 57, 60, 73, 97, 99, 112-113, 111-116, 187, and 194). It has been more than 15 years since they had a notorious public clash—in which Finkelstein accused Dershowitz of being a plagiarist, and Dershowitz tried to get Arnold Schwarzenegger to stop the publication of Finkelstein’s next book. But in Defending Israel, Dershowitz returns to the conflict to set the record straight. He has a lot to say about Norman Finkelstein over the six pages he devotes to him, making the following arguments and assertions:
- Norman Finkelstein falsely accused him of plagiarism.
- Norman Finkelstein claimed Dershowitz hadn’t written his own book.
- Norman Finkelstein has compared Israel with Nazi Germany and Saddam Hussein’s Iraq.
- Norman Finkelstein supports Hezbollah, Gaddafi, and Osama bin Laden.
- Norman Finkelstein demeans Holocaust survivors.
- Norman Finkelstein’s books are trash and fabricate quotes.
- Norman Finkelstein’s “entire literary catalogue is one preposterous and discredited ad hominem attack after another.”
- Norman Finkelstein suspects his own Holocaust survivor mother of having being a Nazi collaborator.
- Norman Finkelstein’s work is relied on by neo-Nazis.
- Norman Finkelstein is a self-hating Jew.
- Norman Finkelstein once “collaborated with an artist to create a pornographic cartoon of me, masturbating in ecstasy as I watched Israeli soldiers murder Palestinian children.”
Personally, I think all of this should make you very curious to find out more about this Norman Finkelstein, and why Dershowitz is so intent on discrediting him.
In 2003, Dershowitz and Finkelstein had a debate on Democracy Now! about The Case For Israel. The whole thing was a disaster. Personally, I didn’t think Finkelstein did very well. Instead of focusing on the merits of Dershowitz’s “case,” he began by accusing Dershowitz of plagiarism and research misconduct, suggesting that Dershowitz had lifted a number of his endnotes from a different book. There was a lot of back-and-forth over whether Dershowitz had used proper citation formats. Then, when Dershowitz challenged Finkelstein to point out historical errors in the book, the two spent a long time tussling over a single erroneous statistic that Dershowitz argued was a mere typo. It was a frustrating exchange, and I don’t think anybody would come away thinking The Case for Israel is actually a “fraud,” as Finkelstein alleged.
But after that debate, Norman Finkelstein went off and wrote a book called Beyond Chutzpah: On The Misuse of Anti-Semitism and the Abuse of History. It’s the book whose publication Dershowitz desperately tried to stop. And I don’t see how anyone who reads it from beginning to end could think Alan Dershowitz should ever be taken seriously again. It combs through The Case for Israel page by page, showing every unsourced claim, every shoddy argument, every omission of a critical fact, every distortion of a historical document. Finkelstein cites dozens of reports from human rights organizations to show that Israel engages in illegal human rights abuses against Palestinians, and catalogs the many atrocious acts committed by the Israeli government that Dershowitz either overlooks or rationalizes. Beyond Chutzpah is an obsessive, exhaustive book, and anyone who thinks Dershowitz’s assertion that his critics couldn’t catch him getting “a single historical fact” wrong needs to go through the Finkelstein book, which shows that there are dozens of facts wrong. Israeli sociologist Baruch Kimmerling called the book “the most comprehensive, systematic, and well-documented work of its kind” and “one of the harshest—rational and nonemotional—texts about the daily practices of the occupation and colonization of the Palestinian territories by Israel.”
It should tell us something, then, that in Dershowitz’s new book, he spends so much time on Finkelstein, without actually dealing with the strongest arguments that Finkelstein presented. Out of all the various allegations about Norman Finkelstein listed above, only one (quote fabrication) has any relevance to the central question: are Norman Finkelstein’s arguments in Beyond Chutzpah correct? The charge of quote fabrication is carefully dealt with and dismissed by Frank Menetrez in an essay analyzing the relative merit of Finkelstein and Dershowitz’s claims. Which leaves us to conclude: Dershowitz has nothing beyond “one ad hominem attack after another.” If every claim he makes about Finkelstein is true (he loves Osama bin Laden, Nazis read and enjoy him), it still doesn’t defeat Finkelstein’s argument that Israel has systematically and illegally violated the human rights of Palestinians, dispossessing them, brutalizing them, restricting their freedom, and killing them indiscriminately. Dershowitz consistently dwells far more on the question of whether “double standard” is applied to Israel than whether the charges made by human rights organizations like B’Tselem are true. (As this magazine has documented previously, he not only thinks Amnesty International, Human Rights Watch, and the U.N. are out to get Israel, but has accused of bigotry everyone from Stephen Hawking to Black Lives Matter to the president of Harvard to Doctors Without Borders to the Duchess of York.)
Norman Finkelstein is prone to intemperate, occasionally outrageous, remarks. Some of them are difficult to defend. (I don’t know why he suggested Dershowitz didn’t write the book.) But he has also produced a thorough body of work that should be devastating to those who accept Dershowitz’s “case for Israel.” Defending Israel doesn’t respond to that work, and at this point one has to conclude that Dershowitz opts for the ad hominem because he can’t address the arguments.
* * * *
A word about being a good lawyer: You don’t always have to be a particularly logical thinker, you just have to be able to talk quickly and bamboozle the jury. Throw a giant binder on the desk labeled “Evidence” and tell them you have a mountain of evidence proving your case. It does not matter what is in the binder. If someone accuses you of Atrocity X or War Crime Y, say: Why are you accusing me of committing War Crime Y and not focusing on the many other countries who do it? Or say: What possible motivation would I have for committing Atrocity X? (Dershowitz: “There is absolutely no incentive for the United States or Israel or for any other democracy ever willfully to kill an innocent civilian.” This is wrong, by the way. If killing civilians makes them cause fewer problems, there is an incentive.)
You do not necessarily need to be especially logical, as long as you can write clear sentences and be prolific. Consider this passage from Dershowitz:
“In a subsequent debate between Peter Beinart, the former editor of the New Republic and a vocal critic of Israel, and myself, Beinart began by saying how much he admired me for the work I had done to help Soviet Jews immigrate to Israel. Then, in the same breath, he condemned me for supporting Israel as it moved to the right. I pointed out the obvious contradiction in his two statements. It is the very fact that a million Soviet Jews immigrated to Israel that moved Israeli politics to the right. I asked him whether he would want to deport or disenfranchise the million Soviet Jews so that Israel could move back to its traditional left-wing orientation. He laughed, but he failed to respond to my deeper point: that Israel is a democracy in which the majority view prevails.”
As you can see, it’s not clear Dershowitz actually knows what a “contradiction” is. “I believe in admitting refugees” and “I am critical of the political beliefs many of them hold and believe those beliefs should not be supported” are not contradictory statements. It’s possible to support democracy and oppose particular decisions that democracy is making, and Beinart was laughing because Dershowitz was absurdly suggesting that you either had to be okay with Israel’s right-wing turn or believe in mass deportation.
We can see, in Dershowitz’s body of work, a little of what people hate about lawyers. They will “make a case” rather than looking for the truth. They will try to get you to look at something else when the weight of the evidence is against them. (“When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on you side, pound the table.”) In doing so, they might look smart, and they might win people over. But if you take the time to look closely, to dissect what they’re saying and see if it holds up under close scrutiny, you’ll realize you’re being tricked by someone who sees their job as “advocating for their client” rather than being fair or just or accurate.
Today, Alan Dershowitz is not well-liked in many circles. He has even alienated his friends at the general store in Martha’s Vineyard. He has become a strong defender of Donald Trump against suggestions that Trump has committed criminal wrongdoing worthy of impeachment, and has been made toxic by his long association with Jeffrey Epstein. (Epstein was one of the few friends Dershowitz trusted to read his book manuscripts.) I doubt Defending Israel will find much of an audience. But to anyone who does read it, I would recommend remembering “burdens of proof.” Check every assertion to see if there’s a source. If there isn’t, don’t believe it. If there is, check the source. There is nobody you should trust less about Israel than the man who considers himself its lawyer.
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