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What Alan Dershowitz and Osama bin Laden agree on

January 27, 2010

Yesterday I read two apparently unrelated things: a report that Osama bin Laden has claimed responsibility for the attempted bombing of a U.S. airliner this past Christmas, and an editorial by Alan Dershowitz about Israel’s medical aid to Haiti titled “For Bigots, Israel Can Do No Right”.

There are some very interesting things going on in Mr. Dershowitz’s piece. It begins:

As most objective observers throughout the world marvel at Israel’s efficiency and generosity in leading the medical aid efforts in Haiti, some bigots insist on using these efforts as an occasion to continue their attack on the Jewish state. Both the neo-Nazi hard right and the neo-Stalinist hard left cannot help but to demonize Israel, regardless of what Israel does.

[operative words emphasized]

The problem for Dershowitz is that some people have noticed and commented on the impressive irony that Israel is going out of its way to provide medical assistance to Haitians while denying it to Palestinians in Gaza (see, for example, this Ha’aretz article from Jan. 18th titled “Israel’s compassion in Haiti can’t hide our ugly face in Gaza”). In his mind, perhaps such criticism can be dismissed as the work of “bigots” from the “neo-Nazi hard right” or the “neo-Stalinist hard left” who “cannot help” but “demonize” the “Jewish state”.

In reality, though, “most objective observers” can see that something is quite amiss when Israel is proudly shipping medical relief halfway around the world, all the while:

The health of 1.4 million people is being put at risk by the ongoing Israeli and Egyptian blockade of Gaza, a report by more than 80 humanitarian organisations warned today.

The aid groups, including the World Health Organisation and UN agencies, said more than one-fifth of sick Palestinians who needed to leave the territory for treatment in Israel had either been refused or had their applications delayed. The groups called on Israel and Egypt to open the border crossings with Gaza.

Max Gaylard, the UN humanitarian co-ordinator for the Palestinian territories, said the blockade undermined the local healthcare system and put lives at risk.

“It is causing ongoing deterioration in the social, economic and environmental determinants of health,” he said.

“It is hampering the provision of medical supplies and the training of health staff, and it is preventing patients with serious medical conditions from getting timely specialised treatment.”

(from Gaza blockade threatens health of 1.4 million, aid agencies warn in the Guardian; also see Amnesty International’s new report Suffocating: The Gaza Strip under Israeli Blockade, the joint report Failing Gaza: no rebuilding, no recovery, no more excuses by over 15 organizations including Amnesty International & Oxfam International, and Gaza Health Fact Sheet by the World Health Organization)

Mahmoud, 4, is held by his mother at Al Nasser Hospital in the Rimal area of Gaza City. The room is cold due to the fuel blockade. Mahmoud is receiving oxygen at the hospital for an immune disorder, but his health is deteriorating, as the sanctions have prevented his getting essential medicines and milk. (from UNICEF)

* * *

In the remainder of his article, Dershowitz explains to us why Haitians deserve sympathy and Gazans do not. Here is the crux of his argument:

Even the New York Times, in an otherwise thoughtful analysis of the controversiality of the aid among some Israelis, failed to note the difference between Israel sending its limited resources to faraway Haiti and to nearby Gaza. Haiti is not at war with Israel. Haiti has not pledged itself to Israel’s destruction. Haiti has not fired 8,000 rockets at Israeli civilians. Gaza, on the other hand, has a popularly elected government that has done and continues to do all of the above. Moreover, there is no comparison between the tens of thousands of Haitians who have died from a natural disaster, and the people of Gaza who suffer far less from what is, essentially, a self-inflicted wound.

Isn’t it at least possible that the millennia-long Jewish tradition of tzadakah — that is, charity based on justice — is at least part of the explanation for Israel’s generosity?

The fact that so many Israelis are advocating medical and other assistance to Gaza certainly supports this latter theory. Has any other country in the history of the world ever provided medical and other assistance to a people with whom it is at war — to people who continue to support rocket attacks and other forms of terrorism against its own civilians? Again, a double standard. The reality is that Israel will be extremely generous to the people of Gaza if and when they stop supporting attacks on Israeli civilians, stop making martyrs of their suicide murderers, and stop encouraging their children to don suicide vests.

It was when I read this that I knew there was something remarkably uncanny about Dershowitz’s rhetoric. But what was it?

Later I noticed this quote from the news report about bin Laden:

… bin Laden added: “America will never dream of security unless we will have it in reality in Palestine.”

And then it hit me: Alan Dershowitz and al-Qaeda are using the same talking points.

Let me explain what I mean by this.

A "self-inflicted wound". Look - these Palestinians are firing white phosphorus munitions at themselves.

* * *

Supporting Infrastructure: “This is a plan. And it has been approved.”

In his editorial, Dershowitz echoes a certain line of Israeli military thinking that has crystallized in the past few years, especially since the 2006 war with Lebanon. I call it the Supporting Infrastructure doctrine.

The 2009 UN report detailing the results of a fact-finding mission to Gaza led by Judge Richard Goldstone in the wake of Israel’s Dec. ’08/Jan. ’09 assault on the Gaza Strip describes this well and is worth quoting at length.

During Israel’s 2006 war with Lebanon, Israeli military tactics began to take on a different character. The Goldstone report explains (pp. 253-4):

1194. In its operations in southern Lebanon in 2006, there emerged from Israeli military thinking a concept known as the Dahiya doctrine, as a result of the approach taken to the Beirut neighbourhood of that name. Major General Gadi Eisenkot, the Israeli Northern Command chief, expressed the premise of the doctrine:

1195. “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. […] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. […] This is not a recommendation. This is a plan. And it has been approved.”

On page 257, the report begins to explore the emerging concept of “supporting infrastructure” and what implications it has for Palestinians:

1203. The issue that is of special concern to the Mission is the conceptualization of the “supporting infrastructure”. The notion is indicated quite clearly in General Eisenkot’s statements in 2006 and reinforced by the reflections cited by non-serving but well-informed military thinkers.

1208. The concept of what constituted the supporting infrastructure has to be understood not only in the context of the military operations of December and January, but in the tightening of the restrictions of access to goods and people into and out of Gaza, especially since Hamas took power. The Mission does not accept that these restrictions can be characterized as primarily an attempt to limit the flow of materials to armed groups. The expected impact, and the Mission believes primary purpose, was to bring about a situation in which the civilian population would find life so intolerable that they would leave (if that were possible) or turn Hamas out of office, as well as to collectively punish the civilian population.

[emphasis added]

The report continues (p. 258):

1209. The Israeli Government has stated:

“While Hamas operates ministries and is in charge of a variety of administrative and traditionally governmental functions in the Gaza Strip, it still remains a terrorist organization. Many of the ostensibly civilian elements of its regime are in reality active components of its terrorist and military efforts. Indeed, Hamas does not separate its civilian and military activities in the manner in which a legitimate government might. Instead, Hamas uses apparatuses under its control, including quasi-governmental institutions, to promote its terrorist activity.”

The statement above apparently legitimizes attacks on “apparatuses under [Hamas’] control” (because they are used “to promote its terrorist activity”) but never defines what these “apparatuses” are. This is world-class obfuscation. It would seem the targeted “apparatuses” could be anything in Gaza, considering Hamas governs the strip.

Below, the extreme vagueness of Israeli military rhetoric is taken to its logical conclusion (p. 258):

1210. The framing of the military objectives Israel sought to strike is thus very wide indeed. There is, in particular, a lack of clarity about the concept of promoting “terrorist activity”: since Israel claims there is no real division between civilian and military activities and it considers Hamas to be a terrorist organization, it would appear that anyone who supports Hamas in any way may be considered as promoting its terrorist activity. Hamas was the clear winner of the latest elections in Gaza. It is not far-fetched for the Mission to consider that Israel regards very large sections of the Gazan civilian population as part of the “supporting infrastructure.

The Goldstone report notes here that regardless of how open-ended and indeterminate the vocabulary of Israeli officials has been, the imposition of a harsh, indiscriminate and collective blockade on the Gaza Strip shows clearly what and who Israel considers to be the “supporting infrastructure” of Hamas (p. 258):

1211. The indiscriminate and disproportionate impact of the restrictions on the movement of goods and people indicates that, from as early as some point in 2007, Israel had already determined its view about what constitutes attacking the supporting infrastructure, and it appears to encompass effectively the population of Gaza.

[emphasis added]

Dershowitz’s writing must be understood in this context. Not only does Israeli military rhetoric color the backdrop to his commentary; it shapes his writing in a fundamental way.

Notice that he is careful, after listing grievances against Hamas, to remind us that it is a “popularly elected government”. Twice he pegs the entire Gazan population as – literally – ‘supporters’ of terrorism: in one place they are described as “people who continue to support rocket attacks and other forms of terrorism” [emphasis added], and in another Dershowitz calls on “the people of Gaza” to “stop supporting attacks on Israeli civilians” [emphasis added].

As the Goldstone report demonstrates, this is very much in line with the latest phase of Israeli military strategy.

A father and three of his children sit in the window of their destroyed home in the southern city of Rafah. They would like to return permanently and rebuild their former home, but under the current restrictions, no building materials are allowed into the territory. (from UNICEF)

The overall effect of Dershowitz’s polemic is to portray most or all of Gaza’s population as an element (or potential element) of Hamas’ “supporting infrastructure”. Once this connection is made, Gaza’s civilians can be re-framed as legitimate targets for Israeli violence and a people fully deserving of the crushing blockade imposed on them. As if things were still not clear enough, Dershowitz calls Gazans “a people with whom [Israel] is at war” [emphasis added].

I remind you that these words are from a world-class lawyer.

* * *

The “supporting trunk”: whether in deed, word, mind or any other form of assistance

This brings us to Osama bin Laden and al-Qaeda. But just what is the connection here?

Well, in a rather spectacular irony, the very same ideas used by Dershowitz and Israel’s military make up an essential part of al-Qaeda’s doctrine of violence.

I would like to draw attention to a 2002 al-Qaeda edict titled “A statement from qaidat al-jihad regarding the mandates of the heroes and the legality of the operations in New York and Washington“. This fatwa was issued in direct response to claims that the September 11th attacks are indefensible due to the civilian deaths. In 2003, Quintan Wiktorowicz and John Kalter analyzed the fatwa in an article for the Middle East Policy Council journal called “Killing in the Name of Islam: Al-Qaeda’s Justification for September 11“.

The loss of civilian life on 9/11 alienated many of al-Qaeda's supporters.

Struggling to rally support for its increasingly unpopular cause, al-Qaeda issued the fatwa, listing what it claims are Islamic justifications for the attacks. However, when faced with the task of reconciling the murder of civilians with a tradition (Islam) that explicitly forbids the practice, the fatwa falls back onto classic “supporting infrastructure” rhetoric:

How can one permit the killing of the branch and not permit the killing of the supporting trunk?

Later on, the fatwa cites a Prophetic tradition (hadith) about an elderly man who was killed while advising an enemy army on the battlefield. In order to make the far-fetched equivocation between a normal civilian and someone actively providing military expertise to the enemy on the battlefield, al-Qaeda distorts the meaning of the hadith:

… [A]l-Qaeda’s use of this story creates an expanded understanding of combat assistance that includes not only direct support through physical participation or advice to war planners, but less direct support as well. (Wiktorowicz and Kaltner 2003)

This effectively “broadens the definition of active participation to include roles that indirectly assist the enemy” (ibid.). The fatwa claims:

It is allowed for Muslims to kill protected ones among unbelievers on the condition that the protected ones have assisted in combat, whether in deed, word, mind or any other form of assistance, according to the prophetic command.

[emphasis added]

Subscribing to the same logic, Dershowitz writes that when “the people of Gaza” “stop supporting attacks on Israeli civilians, stop making martyrs of their suicide murderers, and stop encouraging their children to don suicide vests”, Israel will be “extremely generous” to them. What’s more – he describes the cause of their suffering (which includes the massive destruction from Israel’s 2008/09 war, the blockade as well as various other sanctions, abuses and daily humiliations) as “essentially, a self-inflicted wound”.

In other words: the physical and structural violence dealt to the people of Gaza by the Israeli government is unfortunate, but perfectly fair (“self-inflicted”). (Now pay very close attention here.) Dershowitz’s justifications for this argument fit perfectly into the framework of al-Qaeda’s 2002 fatwa (quoted in bold text below): we are told that the people of Gaza are getting what they deserve because they have assisted in combat, in deed (“supporting attacks on Israeli civilians”), word (“encouraging their children to don suicide vests”), mind (“making martyrs of their suicide murderers”) or any other form of assistance (“popularly elected government”). The level of congruence is breathtaking.

More self-inflicted wounds.

Like Alan Dershowitz and the Israeli government, al-Qaeda subscribes to the principle of collective responsibility (and thus collective punishment) whereby citizens may be made to suffer indiscriminately for the actions of their elected governments. In the words of the 2002 fatwa:

[W]e should know that whatever decision the non-Muslim state, America, takes – especially critical decisions which involve war – it is taken based on opinion polls and/or voting within the House of Representatives and Senate, which represent directly, the exact opinion of the people they represent – the people of America – through their representatives in the Parliament [Congress]. Based on this, any American who voted for war is like a fighter, or at least a supporter.

[emphasis added]

This is the same logic Dershowitz uses in his editorial to differentiate the people of Haiti from the people of Gaza. Remember, he writes:

Haiti is not at war with Israel. Haiti has not pledged itself to Israel’s destruction. Haiti has not fired 8,000 rockets at Israeli civilians. Gaza, on the other hand, has a popularly elected government that has done and continues to do all of the above.

[emphasis added]

The implication is that “Gaza” (i.e., its entire population) does not deserve the world’s sympathy because of the actions of its “popularly elected government”. Textbook al-Qaeda.

Analyzing the 2002 fatwa, Wiktorowicz and Kaltner conclude:

The sheer breadth of these conditions leaves ample theological justification for killing civilians in almost any imaginable situation. The notion that civilians become legitimate targets because of “deed, word, mind or any other form of assistance” (condition three) is so broad that it encompasses virtually every American.

In a similar fashion, the concept of “supporting infrastructure” developed in recent years by the Israeli government – and propagated through the rhetoric of commentators like Alan Dershowitz – helps transform almost anything or anybody in Gaza into a candidate for crippling sanctions and/or Israeli strikes.

* * *

There are, of course, major differences in the discourses of al-Qaeda and those reproduced by Dershowitz and the Israeli military – as is obvious. The larger point, however, is that both parties share a surprising amount in common in their rhetorical strategies – particularly regarding the approval (explicit or implicit) of collective punishment and their redefinition of civilians as elements of “supporting infrastructure”.

When a Jewish Harvard law professor is writing columns defending the collective, disproportionate, and indiscriminate punishment of an entire society for the actions of a few – and on top of that, casting the victims as the cause of their own suffering – I suppose it may be appropriate to take a well-worn cliché out of retirement: the terrorists have already won.

(Oh, and if I get to choose which kind of “bigot” I am, I guess I’ll have to go with “neo-Stalinist hard left”.)

* * *

And finally, some poetic justice


* * * UPDATE * * *

Norman Finkelstein has accused Alan Dershowitz of plagiarizing al-Qaeda.

5 Comments leave one →
  1. January 28, 2010 6:06 am

    Great post. Do you have a cite for the update re Finkelstein accusing Dershowitz of plagiarizing al-Qaeda?

    • January 28, 2010 6:18 am

      Thanks. the “update” part at the end was just a joke, although man.. I really wish it were true!

  2. Isaac permalink
    January 28, 2010 1:02 pm

    Dershowitz is a strange guy, a law professor with a side celebrity criminal defense practice. And, of course, uniquely over-the-top hasbara that makes Jeffrey Goldberg sound like Ali Abunimah. There’s certainly something particularly foul about his rhetoric–his book about Cast Lead is titled “The Case For Moral Clarity,” which really is “beyond chutzpah.” Anyway, watch your back, he might try to sue you.

    • January 28, 2010 2:34 pm

      That book was bout Cast Lead????? WOW.

      Make sure you watch the embedded videos at the bottom.. too goofy. I think the funniest thing I’ve seen about Dershowitz & Finkelstein is Noam Chomsky calling Dershowitz’s campaign against Finkelstein a “jihad”.

  3. Imad permalink
    January 29, 2010 9:19 am

    Reminds me of a joke krusty made in that Halloween special about golems: “just like Dershowitz, except with a conscience!”

    He annoys me in that all of his debates turn into shouting matches. It seems that no one advised him to win arguments critical reasoning instead of with hollering. And that’s without going into his atrocious defense of torture and collective punishment by the IDF.

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