Alan M. Dershowitz - Why Terrorism Works: Understanding the Threat, Responding to the Challenge

This book could not have been written without the help of Luke Bullock, who gracefully oversaw the production of the manuscript and provided invaluable assistance with the research. Thanks also to my student research assistants Owen Alterman, Daniel Volchok, and Mara Zusman, who are masters of Internet research and who were always available to answer my questions and provide me with the needed citation and support. Thanks as well to my colleagues Philip Heymann and Ariel Merari for their willingness to share with me their vast experience and brilliant insights. And a word of appreciation to Jane Wagner, my assistant who kept everything together while maintaining the hectic publishing schedule, always with a smile.

My thanks to my agent Helen Rees for encouraging me to write this book. Thanks also to Robert Flynn for inviting me to write it for Yale University Press and to Phillip King for his masterful editing job.

As usual, my appreciation and love goes to my family, who know how to balance just the right amount of encouragement, criticism, and love.

Finally, my unbounded admiration for the victims of terrorism who have never even considered resorting to this brutal and inhuman tactic in revenge.

[Terrorists] need to know that these
crimes only hurt their cause.
President George W. Bush,
after learning that Islamic terrorists
had murdered reporter Daniel Pearl

The first several hijackings
[accomplished more for the Palestinian cause]
than twenty years of pleading
at the United Nations.
Palestine Liberation Organizations
chief observer at the United Nations

Although state-sponsored global terrorism is a relatively new phenomenon, and is in some ways quite different from other evils previously confronted, it is still subject to the basic rules of human nature and experience that teach us how to reduce the frequency and severity of harmful conduct. This chapter sets out some fundamental rules of deterring crime in general and then shows how these rules relate to terrorism in particular. The next chapter shows how the international community, and especially the United Nations and our European allies, have refused to follow these obvious rules since at least 1968, and in fact have deliberately violated them, thereby encouraging increased resort to terrorism, both in frequency and in severity.

For thousands of years, human societies have sought to reduce the frequency and severity of such harms as murder, robbery, and rape. Various techniques for dealing with such crimes have evolved over time. Broadly defined, these techniques have had much in common across societies and over time. They may be outlined in the following familiar terms.

The first technique is to ensure that the potential criminal understands that he has far more to lose than to gain from committing the crime. This serves to disincentivize the act, or deter the actor, by sending a clear and unequivocal message: not only will you not benefit from the act, but if you are caught doing it you will be severely disadvantaged. (A disincentive seeks to eliminate the benefit seen as an incentive by the offenders. A deterrent seeks to impose a negative cost on them and their cause.) A useful example of this mechanism is the treble or punitive damage remedy, which disgorges all gains from the person who secured them improperly and imposes a punitive fine.

A third technique is to persuade the actor not to undertake the action, by rehabilitating, reeducating, or shaming him, convincing him that the action is wrong. A good example of this mechanism is requiring drunken drivers to attend classes or enter programs designed to influence behavior.

Another traditional technique is proactive prevention. The word prevention carries broad implications, including eliminating or reducing the causes of crime, such as poverty. I am using prevention in the more specific sense of gathering intelligence about plans or impending crimes. Secret service agencies throughout the world plant spies in terrorist organizations to gather such information. They also bribe or extort actual members of these organizations to serve as double agents. Sometimes they engage in scams or stings calculated to get the criminals to commit the crimes under controlled situations (such as selling drugs to an undercover agent, or hiring a hit man who turns out to be a government agent). Intelligence agencies also gather information by means of high technology, such as satellite photography, electronic intercepts, and the like. A useful metaphor for this mechanism is building a trap for a wolf that is eating a farmers sheep and baiting it with a dead animal.

There are clearly overlaps among these methods. The death penalty, for example, incapacitates and punishes the specific offender (this is called specific deterrence) while also, it is hoped, deterring other potential offenders (this is called general deterrence). The age-old rule disallowing a murderer to inherit

The goal of removing all positive incentives (disincentivizing) while also imposing negative consequences (deterring) is to send the following powerful message to any person or group contemplating the commission of a harmful act: you, your group, your family, and everything you hold dear will be considerably worse off if you commit the prohibited act than if you forbear from committing it. That was the intent of the following statement made by President Bush on April 4, 2002: I call on the Palestinian people, the Palestinian Authority and our friends in the Arab world to join us in delivering a clear message to terrorists. Blowing yourself up does not help the Palestinian cause. To the contrary, suicide bombing missions could well blow up the best and only hope for a Palestinian state. Anything that mutes this message, or undercuts it, diminishes the impact of this age-old technique for reducing the frequency and severity of harmful conduct. For example, if a bank robbers family (or the cause he was robbing for) were allowed to keep the proceeds of the robbery, the deterrent message would be decidedly mixed, even if the robber himself is caught and imprisoned.

Again, think of a zoo as incapacitating the wild animals, and think of an animal trainer who threatens the whip and promises the food as more akin to the disincentive-deterrent model. Or think of the hospital for the criminally insane as incapacitating a dangerous person who cannot be deterred by the threat of future punishment, while at the same time trying to reduce his propensity toward violence by treating his aggressive mental condition.

In addition to these techniques of harm reduction, all of which focus directly on the behavior in question, there are also some softer approaches that tend to be oriented more toward the longer term and have a more subtle impact on the harmful conduct. This kind of approach includes such efforts as education, positive reinforcement, negative reinforcement, religious indoctrination, and so on.

In the next chapter I will focus on how the international community not only failed to disincentivize terrorism but went so far as to incentivize it, by rewarding it rather than punishing it. In subsequent chapters, I will discuss the other techniques.

The theory of deterrencereducing the frequency of an undesirable action by threatening and inflicting pain on those contemplating the actionoperates along a continuum. At one end of the continuum is the calculating state. The conventional theory of nuclear deterrence, for example, hypothesizes a state, whose actions The theory depends largely upon actors making calculations and counter-calculations based on each others contemplated actions and reactions. Near the other end of the continuum are largely futile attempts to deter impulsive actions by irrational actors. These actions may be caused by such factors as passion, impulse, and mental illness. For the most part even the most passionate, impulsive, and mentally ill actors are capable of being deterred from taking