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Thursday, May 05, 2011

Brilliantly stupid legal reasoning, or stupidly brilliant legal reasoning?

Harvard Law Professor Alan Dershowitz, in the Wall Street Journal:

When a Muslim or a Jew is the victim of a homicide in the United States, religious considerations do not trump civil requirements. Their bodies are generally sent to the medical examiner for thorough examination. Notwithstanding religious prohibitions, autopsies are performed and organs removed for testing. No special exception should have been made for bin Laden's body.

But bin Laden was not "the victim of a homicide in the United States." There's no need to discuss the right or wrong of making "exceptions" to a set of "civil requirements" that emphatically do not apply.

So I'm going with "brilliantly stupid" — lucidly and articulately argued in simple, clear language, but entirely based on a premise which is indisputably and unmistakably false. I won't quibble, however, with anyone pithier than me who concludes that Prof. Dershowitz' argument is just stupid.

This is the kind of nonsense that comes from civilian lawyers uncritically (i.e., stupidly) applying rules from the domestic U.S. criminal justice system to the transnational war against radical Islamic terrorists. This is also the kind of nonsense that comes from people who take the movie/mass media versions of themselves way too seriously.

The main point of Prof. Dershowitz' op-ed is to argue that the Obama Administration ought to release photographs of OBL's corpse. Typically for Prof. Dershowtiz, he makes some good points, most of which were already obvious, but he fails to even acknowledge that there are competing concerns that are also entitled to weight in that decision. I don't have a firm opinion on whether the corpse photos ought to be released because I have not seen them myself. (Indeed, it seems impossible to me that anyone could make a thoughtful decision about the photographs' likely effects unless one has actually seen them.) But whichever way one comes out on the merits, it's only fair and honest to concede that there are good policy arguments to support either outcome, yet problems with both. My point is that an advocate who refuses even to address contrary arguments cannot possibly do a good job advocating his position about their relative weightiness. So again, color me unimpressed, overall, with Prof. Dershowitz. Your mileage may vary.

Today's winner in the "I am not a lawyer but I watch lots of cop shows" category: William Saletan in Slate, who's breathlessly cross-examining third-hand, unsourced wire service stories as to whether the OBL raid would have been a case of police brutality if judged by the standards of domestic U.S. police officers conducting an arrest. Mr. Saletan is still missing the really key factual issue, however: Was bin Laden permitted a reasonable opportunity to inquire about his Miranda rights?

(That's me being sarcastic. But some people, possibly including Mr. Saletan, may think that's a serious question. They should enroll at Harvard Law School and take lots of classes from Alan Dershowitz.)

Posted by Beldar at 06:17 PM in Global War on Terror, Law (2011) | Permalink

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Comments

(1) Joshua R. Poulson made the following comment | May 5, 2011 6:40:13 PM | Permalink

I posted my comment to the WSJ, starting with "Objection! Irrelevant" :)

(2) Gregory Koster made the following comment | May 6, 2011 12:31:13 AM | Permalink

Dear Mr. Dyer: OK, what are the good reasons for NOT releasing the photos:

a) might compromise some form of mission security
b) "inflammation"

a) I would bow to. But as for b) apply some "aspirin" i.e. tell the Arab Street to go soak its head. My own take is that it's generally better for the citizenry to know what's going on instead of being kept in the dark. I can't give you a principle that would make this decision for you. But secrecy suppresses any form of correction if something wrong has happened. Am I missing any arguments for suppressing the evidence?

Call me cynical, but I think OBL was a dead man no matter what. The One didn't want to kill him, heaven knows, but if he didn't, he could be blackmailed by anyone who knew OBL had been in range and let slip. So why not capture him? Sure, that would have been possible. Then what? Try him? After the fiasco of KSM's attempted civilian trial in New York? Hahahahaha! No, Holder has had his nose rubbed in the limits of law. OBL was a dead man, unless you subscribe to the conspiracy theory that OBL was captured alive, and was only reported dead so the rubber hoses, waterboards, castor oil, and thumbscrews could get him to sing until he's a squeezed orange, fit to be heaved overboard. I consign this theory to Brother Trump who know self promotion better than anyone else alive and is welcome to it.

Meanwhile, The One's shameless credit-grabbing, and never mind what he said before being elected, seems to be showing him in characteristic fumble mode. This is the mastermind who is in charge of the government. Each day brings us closer to election day, 2012, but it sure doesn't seem any closer.

Sincerely yours,
Gregory Koster

(3) Beldar made the following comment | May 6, 2011 4:59:46 PM | Permalink

Mr. Koster, you trivialize the potential inflammatory effects of the photographs because you don't like the people whose sentiments would be inflamed. I don't like them either.

But among those opposing the photos' release -- and among those who've actually seen the photographs, unlike you and me -- are our theater military commanders. They're who'd have to write the letters home to grieving families. I'm inclined to give their opinion a lot of deference, and therefore to put entirely to the side my own selfish desire to rub some noses in the fact that this monster is now fish food.

I could find plenty to criticize with the White House's handling of the public relations on this matter. Many in the blogosphere are doing exactly that, as is their right. I choose not to, however — or rather, I choose to focus my fire instead on the many other important things which I believe this administration is getting spectacularly wrong.

In the end we're all food for worms or fish or microbes or flames. Life is a terminal condition, for you and me as for Osama bin Laden. I'm very gratified that bin Ladin's end came sooner, however, and via the muzzle of a U.S. Navy SEAL. If you and I don't get to see the full-color glossies of the result, I can live with that just fine until my time comes to be worm-food.

(4) Neo made the following comment | May 7, 2011 3:15:30 PM | Permalink

I originally thought the photos should be released, but now that enough time has past, their release would only be greeted with cries of "fake." Their best effect would have been to release them immediately. With the statements coming from others present at the time of the raid (specifically the family members) and al Qaeda's own statements that bin Laden is dead, their beneficial effect is now moot.
As for the "sensitivities," killing him was even more insensitive to the folks who would be swayed by a few photos.

(5) davod made the following comment | May 7, 2011 11:01:03 PM | Permalink

"But among those opposing the photos' release -- and among those who've actually seen the photographs, unlike you and me -- are our theater military commanders. They're who'd have to write the letters home to grieving families. I'm inclined to give their opinion a lot of deference, and therefore to put entirely to the side my own selfish desire to rub some noses in the fact that this monster is now fish food."


We will never know how many lives could have been saved as a result of Muslims striking out against the ratbags because they saw the photo showing a dead Bin laden.

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