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Preemption by Alan M. Dershowitz

- Abstract

In the aftermath of the 9/11 attacks, American officials were like a reeling prizefighter, fending off a barrage of blows with little thought of the rounds ahead. At issue was not just recovering from the devastation at the World Trade Center and the Pentagon; like the public at large, many in the military and in law-enforcement agencies feared a second wave of strikes. Sparse intelligence made an expeditious sorting of terrorists from innocents a practical impossibility. Could we afford to investigate the events of 9/11 under the ordinary procedures of the criminal-justice system? With thousands of lives hanging in the balance, could we leave potential al-Qaeda operatives at liberty until probable cause for issuing arrest warrants could be established?

These dire questions were answered on the wing, resulting in the mixed bag of outcomes one would expect in the face of so unprecedented a crisis. Alan Dershowitz believes that, even now, we have yet to think through the measures demanded by this dangerous new world, much less how they fit into our legal and political traditions. In Preemption: A Knife that Cuts Both Ways, the prolific Harvard law professor has applied himself to filling the need, calling for a jurisprudence that would permit and, at the same time, control government actions to forestall today’s most dire threats.

About the Author

Andrew C. McCarthy directs the center for law and counterterrorism at the Foundation for Defense of Democracies. In somewhat different form, this article will appear in his book, Willful Blindness: A Memoir of the Jihad, soon to be released by Encounter Books. Copyright 2008 by Andrew C. McCarthy.