From O.J. Case to Gaza War, Alan Dershowitz Confronts Moral Complexities at Straus Center Event

As Israel grappled yet again with the complex strategic and moral challenges of self-defense, Alan M. Dershowitz delved into a nuanced analysis of the obligations, merits and dangers of human justice in a conversation presented by Yeshiva University’s Zahava and Moshael Straus Center for Torah and Western Thought on November 20.

Alan Dershowitz and Rabbi Meir Soloveichik at the November 20 Straus Center event

Rabbi Dr. Meir Soloveichik, director of the Straus Center, drew on many recent publications by Dershowitz, a world-renowned lawyer and political commentator and the Felix Frankfurter Professor of Law at Harvard Law School, in juxtaposition with the biblical travails of Abraham to frame the discussion, which addressed topics as far-reaching as capital punishment, post-Holocaust Germany and Dershowitz’s own part in the defense of O.J. Simpson against murder charges.

“We live in a society where the vast majority of people charged for a crime are guilty,” said Dershowitz, noting that of the more than 36 clients he had defended for murder charges in court, most probably had done the deed. “Thank G-d for that—would anybody want to live in a society where most people accused of a crime were innocent?” Pointing to Abraham’s prayer to G-d on behalf of the sinners of Sodom, Dershowitz called him “the original criminal defense lawyer.”

“The role of the defense attorney is to keep the system just by fighting as hard as you can for every single client, whether innocent or guilty,” said Dershowitz. “After all, I may know statistically that most of my clients are guilty, but I don’t know which ones.”

Touching briefly on the Simpson case, Dershowitz explained how a misguided – and illegal – intervention by police made it impossible for a jury to convict. “Their chief piece of evidence was a sock they claimed they had found by the foot of his bed which had on it both the blood of Simpson and the blood of his victims,” he said. “You couldn’t manufacture a better piece of evidence, and that’s exactly what they did.”

After demonstrating how he and the defense team had figured out the trick through a combination of contradictory video footage, lab testing and common sense, Dershowitz noted the moral complexities of framing a guilty person: “The prosecution believed Simpson had done it and that he would get away with it because the blood on his glove would be suppressed as an illegal search, so they tried to create this new piece of evidence,” he said. “As a result, most jurors said they could not vote to convict a person if they believed the police had planted evidence against him—even if they also believed he was guilty. In that case, the process of justice demanded one result, and perhaps the ends demanded another.”

In Genesis, Abraham’s plea to spare the entire city of Sodom on the merits of the innocent is refused by G-d, which raised an additional question for Soloveichik about the story’s implications: Is it ever permissible or even necessary to destroy an enemy, even if it will entail the loss of innocent lives?

“This is all being acted out in Gaza as we speak, the same way the United States had to confront it in World War II, although they made a different choice,” said Dershowitz. “The Israeli army, which has been called the most moral army in the history of warfare by Richard Kemp, the former commander of British troops in Afghanistan, tries desperately to avoid even a single innocent casualty, but it can’t. It knows that in order to save possibly hundreds of Israeli civilians it may have to kill several innocent Palestinians after warning them, after giving them an opportunity to leave, after distributing leaflets, after denying Palestinians the right to use innocent children as human shields.”

He contrasted that approach with the two atomic bombs dropped by the U.S. on Hiroshima and Nagasaki in 1945. “The argument was made that if we had to invade the whole island of Japan, we would have lost hundreds of thousands of American troops in the process, and it was better to take the lives of a hundred thousand civilians in Japan, with whom we were at war, than to take those of young Americans who are your children, my children, 18-year-old kids,” Dershowitz said. “That argument was mostly accepted by international law and public opinion at the time.”

But it would never be accepted by the people of Israel today, according to Dershowitz. He referred to a recent strategic strike against a Palestinian terrorist by the Israeli air force, which led to the accidental deaths of 14 innocent people in an adjoining building. “The reaction in Israel by Israeli citizens was outrage,” said Dershowitz. “‘Don’t do that!’ The Israeli people demand proportionality even more than the court of public opinion. I think Israel has to do the right thing, but satisfy its own people, acting in the tradition of Judaism and not care as much as it does about public opinion, because somehow when the world thinks about Israel, a double standard is applied. Things that are never asked of other countries are suddenly demanded of us, and we can simply never satisfy them. We have to satisfy ourselves.”

For Dershowitz personally, that will mean remaining within the Democratic Party to make his case as a liberal supporter of Israel. “Many people think I must be a conservative now, even though my whole life has been a life of liberalism on the left, because of my beliefs about Israel,” he said. “They think I must be a neocon, a supporter of the extreme right-wing. I want to make people understand that I support Israel, not despite being a liberal, but because I’m a liberal and because I support the values that Israel demonstrates. Not only in the way it governs, but also in the way it fights wars.”

He added: “I’m proud of Israel and I’m proud of my morals.”

Jill Joshowitz, a senior at Stern College for Women majoring in art history and Judaic studies, found Dershowitz’s articulation of his position as a liberal and supporter of Israel both intriguing and affirming. “He’s an expert on the subject of Israel and an expert on just and ethical societies,” she said. “To be able to hear someone of his caliber discuss morality and what’s happening in Israel now here at YU is a privilege.”