An Interview with Alan Dershowitz

This month, his newest book, The Preventive State: The Challenge of Preventing Serious Harms While Preserving Essential Liberties, has been published. I had the opportunity to talk with Mr. Dershowitz about his book and the current events his book addresses.

The text has been edited for clarity and brevity.

Your new book, The Preventive State, has been described as your Magnum Opus. What do you think?

I’ve been teaching the subject at Harvard Law School and other places for sixty years, I think it’s my most creative and important book. It’s all about how governments are changing their approach from waiting for harm to occur to anticipating it in advance. It’s based on the Torah principle of Rodef Din: you don’t wait until somebody kills. You chase them first. I can also cite it to another provision in the Torah, my Bar Mitzvah sedra: Tzedek, Tzedek, Tirdof. It doesn’t just say “Tzedek” once, that after the fact you seek Justice — if you can, prevent an injustice from occurring before it occurs.

For example, the Torah talks about “a recalcitrant son” (Ben Sorer U’moreh, Deuteronomy 21:18-21), and the Torah also has a lot of preventive measures in it, such as preventing the spread of disease by putting people with leprosy outside the camp. Esther and Mordechai engaged in preventive warfare. They rose up and killed Haman’s supporters before they were able to kill the Jews. So the issue of prevention goes back a long, long time to the Torah.

But it’s become manifest now in civil society in recent years with deportations, denial of bail, preventive war, like a potential attack on the Iranian nuclear reactor. If we could have prevented October 7th by killing 10 Hamas leaders on October 6th, we would have done it and should have done it. So, what we need is a jurisprudence for prevention. What I’ve tried to do in The Preventative State is construct to create a jurisprudence, which is why this is my most important book, my Magnum Opus, the one that required me to become an “Elder” of Zion to write.

But at the same time, you also mention in the book the problem of overreach. One can try to anticipate, but there are limitations. Now, one of the ways you deal with that is the cost-benefit analysis that you do. You talk about it throughout the entire book, but can you briefly describe how it works?

Every time the State does something to prevent a harmful act. It denies somebody their freedom. So the question is: how many people would we be willing to deny what kind of freedom to prevent what kind of horrible act?

I’ll give you an example: Israel recently attacked a hospital, and in the process, according to recent reports, may have killed between seven and ten of Hamas’s major leaders who were using the hospital illegally, to hide themselves among civilians. So, the Israeli military had to do a cost-benefit analysis. By killing the leaders of Hamas, they prevented the killings of many, many people, but at the cost of killing some. That’s the kind of course benefit analysis that I think we have.

It starts again in the Torah, with Abraham arguing with G_d about the destruction of Sodom. What if there are 50 innocent, 40 innocent? Then they have an analysis and a bargain, and ultimately, they stop at 10. The lesson is that it’s not okay to kill thirty or forty innocent people to punish the guilty, but it may be necessary to punish seven, eight, or nine innocent people. There’s no free lunch; it’s always going to be a trade-off. And I think that trade-off is well reflected in the story of Avraham and Sodom.

Alan Dershowitz (screen cap)

In your book, you mention that this story is the basis for that kind of cause analysis.

William Blackstone’s ratio, “It is better that ten guilty persons escape than that one innocent suffer,” comes directly from the story, because the number ten is used. When people like Blackstone and others, who are very familiar with the Torah, constructed modern Anglo-American jurisprudence, they looked to Biblical sources.

You mentioned Hamas and the issue of terrorism. Currently, in international law, one of the most pressing issues is applying the law in the war against terrorism. How do you think International law should address terrorism in order to be able to be both effective and just?

Well, it can’t do it for this reason: if it applies the law, it only applies to democracies. It never applies to the terrorists. Hamas doesn’t even pretend to comply with international law. They applauded the killing of a pregnant woman who was about to give birth. Nobody, under international law, would justify that. But Hamas doesn’t care, so the application of international law only ties the hands of democracies, and it’s being done today in a very, very unfair way.

I would say the major function of international law today is to attack Israel, and the major function of human rights is to attack Israel. You don’t see international law or human rights law applied against the Syrians when they were killing, or against what’s going on in the Sudan, or against what the Chinese are doing to the Uyghurs. International human rights are only used against Israel. They’ve become weaponized tools in the war against Israel and Zionism.

You have the original letter that Thomas Jefferson wrote, where he writes, “We have nothing to fear from the demoralizing reasoning of some, if others are left free to demonstrate their errors, and especially the law stands ready to punish the first criminal act produced by false reasoning.” But what happens when campus protesters prevent pro-Israel speakers from speaking on campus, and the police are either unwilling or prevented from punishing that first criminal act? What would Jefferson say today?

Well, Jefferson was wrong, even back then, and I wrote a book about it called Finding Jefferson, in which I criticized that particular statement in the letter hanging on my wall. We have plenty to lose, plenty of harm, but you’re right, the marketplace of ideas is not helping. An example: In the 11 years since I retired from Harvard, I have not been allowed to speak once about Israel on the Harvard Campus. I’ve rarely been invited on any campus to speak about Israel. But any anti-Israel speaker is welcome with open arms, and their First Amendment rights are protected, and protected even by me. But my First Amendment right to speak on college campuses and the First Amendment rights of pro-Israel students to hear me make my points are not protected on campus. That is why I decided to write this little pamphlet, and we made a million copies of it available free to college students all over the country, indeed all over the world: The 10 Big Anti-Israel Lies, and How to Refute Them With Truth. We’re giving them out because I can’t speak on these campuses, but I can speak through my books. They can’t stop me or stop pro-Israel groups on campus and Chabad from giving out my pamphlet. At least some of my ideas make their way into the marketplace of ideas on at least some college campuses.

One of the tools for applying international law justly, we assume, are the international courts, the ICC, the ICJ, and the European Courts. What do you think of the job they’re currently doing?

They’re worse than nothing, much worse than nothing. If it was nothing, at least you could say, well, every country has to decide for itself what International law is. The International Court of Justice isn’t international, it isn’t a court, and it does not understand justice. It’s not international because it excludes many countries from serving on it. It’s not a court because the judges are picked by the countries, and it has never shown any interest in justice. The same thing has now become much truer of the International Criminal Court and the European Court. They’re all biased. They’re all left-leaning. They’re all anti-Israel, anti-American, anti-Christian, and anti-Western values, and they are a disgrace. It would be better if all of them were abolished. I would now be in favor of abolishing the International Criminal Court and the International Court of Justice. I would also be in favor of abolishing the United Nations. When you have organizations that do more harm than good, that help promote distorted values and help promote a double standard, it’s much better to have no institutions than to have bad institutions.

So you would rather eliminate them outright rather than replace them with something else.

I would abolish them outright. I don’t think that there is a possibility of creating a fair international court that would judge Israel, the United States, and the Western democracies fairly. I think it’s beyond our capacity today to have fair judgment. I would leave it up to the domestic courts to enforce international law. Countries like the United States, Israel, and England would have their courts enforce international law. Of course, countries like China and Iran would not, but that’s the way it is today, too, because those countries ignore the United Nations.

According to your book, and I’m quoting now, “Nearly all aggressive military attacks can be justified by the benign language of prevention.” What about the flip side? Today, we see the “benign language” of resistance–resistance as an excuse for what Hamas did on October 7th, resistance used as justification for numerous terrorist attacks. Is there such a thing as a right to resistance?

There is no right to resist by killing innocent people. First of all, resistance is in the mind of the beholder. The Palestinians could have had a state in 1937, 1938, 1947, 1948, 1967, 2000, 2001, 2005, and 2007. They turned it down every time. They had an opportunity by the law and by negotiation to have a state. They said no, and instead they used violence. That is not a right under any moral, legal, or practical system of law. The Palestinians have waived their right to resistance or a state by turning down peaceful offers of statehood.

Listen to Bill Clinton, when he says in 2000-2001, he personally, along with Ehud Barak, offered the Palestinians 96% of the West Bank, 4% of what is now Israel, a capital in Jerusalem, all of Gaza, and a right of return for some. Arafat not only turned it down, but he also started an intifada in which 4,000 people were killed. There is no right of resistance when a country has turned down the ability to get what they claim they want. The reason the Palestinians don’t accept any peace processes is that they don’t care about a state; they only care about there not being a Jewish state. We talk about the two-state solution, which the Palestinians have rejected. The Palestinians would accept the no-state solution: no Palestinian State–as long as there is no Israeli State. So, as Bill Clinton said in his comments, the Palestinians don’t want a state. They just want to kill Jews–that’s their leadership, I’m not talking about the average Palestinian. So, no, there is no right of resistance, either morally or legally.

You also write, “It is also relevant that Israel wouldn’t retaliate for the nuclear destruction of Tel Aviv by destroying Tehran.” Now that implies certain limits exist in retaliation. So, how about Israel’s retaliation against Hamas and Gaza? Do you think that there are limits to Israel’s right to retaliation, and if so, has Israel successfully stayed within those limits?

I’ll answer the second question first. Israel has stayed well within those limits. Israel has killed fewer civilians than any country in modern warfare, in comparison to the number of combatants that were killed. What Israel is doing is preventive, not retaliatory; it’s designed to prevent Hamas from keeping its promise. Hamas promised more October 7ths, and until it gives up its tunnels and gives up its murderous actions. Israel is entitled to try to kill its leaders and its members. And if its leaders and its members are hiding amongst civilians, Israel’s entitled to try to kill those leaders, even if it means a proportional number of civilian casualties. Israel is operating not only within International law, but is doing a better job in reducing civilian casualties than any country in modern history, faced with comparable threats.

People have accused Israel of genocide, claiming that the number of casualties proves intent or is sufficient even without intent.

There has to be more than intent; there has to be genocide. There is no genocide. If Israel wanted to kill every Palestinian in Gaza, it could easily do it. The population of Gaza and the population of Palestinians in Israel in the West Bank have grown dramatically. So, as somebody put it, if Israel were trying to engage in genocide, they’re the worst genocidal people in the history of the world. They have failed miserably because they have increased the number of people who are Palestinians throughout the Middle East. So, of course, there’s no even remotely plausible claim of Genocide. So you don’t even get to intent. It doesn’t even matter what the intent is; there has been no act that constitutes anything close to Genocide. If Hamas had succeeded on October 7th and had overrun Tel Aviv and gone into Beersheba and other cities, there would have been a genocide, but that didn’t happen. Israel has never intended to kill innocent civilians. The innocent civilians died because they were used as human shields by Hamas.

In your book, you describe what you call a continuum of civilianity. How does that work, and how does it apply to what is going on in Gaza now?

That works perfectly in terms of Gaza. You have real civilians, babies, very old people, and people who are opposed to Hamas. They are real civilians. Then you have the real Hamas. You know, Sinwar, the leaders and the terrorists, the people who are throwing bombs. In the middle, you have a whole bunch of people. For example, on October 7th, not only did Hamas people cross over the border and kill and rape and behead, but Hamas civilians participated in that. They lose their status as civilians once they participate in the killing of other civilians, and then you get people who allow their homes to be used to store weapons or to fire rockets, and to use their homes to hold hostages. These are all people who are on the continuum of criminality and terrorism. It’s not an absolute, clear black and white line between who’s a terrorist and who’s a civilian. Many people who claim to be civilians are so deeply involved in the terrorist activities of Hamas that they belong on this continuum closer to the terrorist line than the civilian line.

In your book, you criticize Oliver Wendell Holmes and address the famous case of yelling fire in a crowded theater, which doesn’t even fall into the category of speech, free or otherwise. You write, “The message fire is directed not to the mind and the conscience of the listener, but rather to his adrenaline and his feet. It is not an invitation to discuss, argue, or disagree. It is a stimulus to immediate action and not thoughtful reflection.” What about today on the campuses and the streets when the protesters chant, insult, and make it clear they are not inviting people to discuss or argue, but rather creating a stimulus to immediate action, intimidation, and harassment? Where does that fit in free speech?

When you take people on college campuses who are calling, “Death to the Jews,” who are calling to prevent Jews from going to class, who are calling for immediate attacks and harassment of Jews–that’s not protected speech. On the other hand, if you make an abstract talk and say, well, it would be good if there were no Israel–that hate speech is protected speech. The line between protected speech and unprotected speech shouldn’t fall on shouting fire in the theater. That is a very foolish analogy, one of the dumbest, most misleading things Oliver Wendell Holmes ever said. But there is a line between direct incitement and a more abstract argument. Abstract arguments, even if they are hateful, are permitted under our Constitution. But direct incitements to kill or harm other people or block their access or deny them the opportunity to go to class–those are not protected by the First Amendment.

We’re still waiting for the universities to catch up to that fact.

We’re still waiting, and I think it’s good that there’s some pressure from the federal government. I think universities themselves are not willing to move and alienate their radical faculty and their radical students, unless they have no choice. I think the Trump Administration has done the right thing in applying pressure. I don’t think that we should ever withdraw funding from medical and scientific research, but withdrawing funding from advocacy organizations, on campus, such as Intersectionality and DEI and Black Lives Matter, and Critical Race Studies–that’s all a good thing.

You mention hate speech, which is protected. But to be clear, it is protected only when it is in the abstract.

When it’s abstract, when it is part of a discussion. But nobody wants to debate. I offered to debate the most hateful anti-Israel speakers, but they won’t debate me. They know they couldn’t possibly prevail in the debate because their side is so weak. The history is so much against them. How do you explain the fact that they turn down statehood all those times, and now they’re willing to kill?

By the way, there’s not a single demonstrator on a single college campus anywhere in the world, not a single demonstrator–I challenge anybody to contradict me–who was ever called for a two-state solution. No, they don’t want a two-state solution. They’re perfectly happy with a one-state solution. Only Palestine, no Israel, or even a no-state solution. But they’re not satisfied and would never accept a solution that involves and includes the right of Israel to exist as the nation state of the Jewish people.

You criticize what you call the labeling game, distinguishing between preventive and punitive sanctions. How about Trump’s suggestion about deporting Gazans? Would deportations be more legal if they were presented as preventive instead of being purely punitive?

No, but I think it would be more legal if it were voluntary, if the administration offered Palestinians who live under Hamas in Gaza, under miserable conditions. If they were given a choice to move to Libya or another Arab State, given finances, given a Marshall Plan to build a community somewhere else, or leave temporarily and have Gaza rebuilt with only people allowed back in who are not in favor of Hamas. That might be a reasonable approach. I applaud Trump for coming up with some suggestions and ideas. The status quo in Gaza is unacceptable, but I think one can be critical of any of the particular proposals, and one has to be careful to make sure that they will comport with morality and the correct application of legal principles.

What about Israel’s embargo of Gaza, which is preventive as opposed to punitive?

Let’s start with the lie. Nobody’s starving in Gaza. We’ve been hearing that the Gazans have been starving since October 8th. It’s just a lie. Nobody is starving, and nobody has starved. Remember that the Gazans were open to get food for months, uh, and they stocked up. A lot of the food went to Hamas. A lot of the medical care went to Hamas.

No country is obligated to send food or medicine to people who are trying to kill them. Ultimately, if Hamas wants to get more food, let them release the hostages. But right now, the hostages aren’t getting meals. They’re getting a piece of bread, and we know that many of them have been killed, many of them have died. It takes an enormous amount of chutzpah for those who are killing innocent hostages to complain that maybe they aren’t being fed enough food. There are pictures of open markets, open stalls, selling fresh vegetables and fruit, and there’s plenty of opportunity for the Gazans to grow their own food. There’s even permission to fish in certain areas. I think the lie of Gaza being subject to hunger and starvation has to be exposed by the media. It’s just a lie that’s been perpetrated now for almost two years.

Any last thoughts?

I think the question that should be asked all the time is ‘Why the Jews?’ Why is it that the world, particularly the left, has turned so ferociously against the Jews? You can’t blame Israel because it happened before Israel. It’s going to happen again. There is a double standard to it. People ask me all the time. What’s your definition of antisemitism? It’s so simple: applying a double standard against things Jewish–the Jewish state, the Jewish people, and Jewish organizations. Anything that applies a double standard that’s negative to Jews or the Jewish state is antisemitism. It’s as simple as that, but it’s as important as that. And that’s what’s going on at university campuses. You can’t say a negative word about certain favored groups, African-Americans, women, and gays. The reason Claudia Gay was fired from Harvard is not because she said it was a matter of context when calling for the genocide of Jews. That wasn’t the reason. She had previously said it’s not a matter of context. You can never say anything negative about women, gays, or blacks, and it’s the double standard that she applied, which got her fired very appropriately.