Desch v. Dershowitz in The American Conservative.

January 4, 2006

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Editor’s note: Finkelstein comments at the bottom.

Desch’s review |
Dershowitz letter |
Desch’s reply |
Finkelstein’s comment

Dershowitz v.Desch
The American Conservative | January 16, 2006 | Forum section
Printable PDF of article

In our Dec. 5 issue, The American Conservative
published a review of Norman
Finkelstein’s Beyond Chuzpah by contributing
editor Michael Desch. Alan
Dershowitz, whose scholarship was
critiqued by Finkelstein’s book, objected
at length, attacking both the author and
our reviewer. His complaint, along
with Desch’s reply, follows.

Dershowitz writes:

When a far right-wing magazine embraces
an avowed communist, the topic under
consideration must be Jews and Israel.
It is not surprising, then, that The American
has found a kindred
spirit in Norman Finkelstein. Both have
declared war against “American Jewish
elites,” and both spout wild conspiracy
theories about Jewish influence on
American’s media, culture, government,
and economy.

I am referring to Michael Desch’s purported
review of Finkelstein’s book,
Beyond Chutzpah. It is only a “purported”
review because as the headline
suggests (“The Chutzpah of Alan Dershowitz”)
the majority of the article is
devoted to attacking me. Desch makes
four accusations against me, all of
which are not only false, but so sloppy
and implausible that it would have taken
only a few minutes of fact-checking to
refute them.

(1) Desch parrots Finkelstein’s claim
that I have turned my back on a career
as a civil libertarian by “present[ing] a
brief for torture.” Had he read my book,
Why Terrorism Works, instead of relying
on Finkelstein’s mischaracterization
of my position, Desch would know that
I am a stalwart opponent of torture, that
I have fought hard against torture in
both America and Israel, and that my
proposals are designed to minimize and
hopefully prevent torture.

As I have written: “I am against torture
torture as a normative matter, and I would
like to see its use minimized. I believe
that at least moderate forms of nonlethal
torture are in fact being used by
the United States and some of its allies
today. I think that if we ever confronted
an actual case of imminent mass terrorism
that could be prevented by the infliction
of torture, we would use torture
(even lethal torture) and the public
would favor its use…

“I pose the issue as follows. If torture
is, in fact, being used and/or would, in
fact, be used in an actual ticking bomb
terrorist case, would it be normatively
better or worse to have such torture regulated
by some kind of warrant, with
accountability, recordkeeping, standards
and limitations? This is an important
debate, and a different one from the
old, abstract Benthamite debate over
whether torture can ever be justified. It
is not so much about the substantive
issue of torture as it is about accountability,
visibility, and candor in a democracy
that is confronting a choice of

(2) Desch accuses me of a “partial
reading or misreading” of Benny Morris,
whom I cite several times in The Case
for Israel. Desch concludes that “Finkelstein
documents these charges in
exhaustive detail in Appendix II of his
book and the preponderance of evidence
he provides is conclusive.”

Finkelstein’s “evidence” consists of
empty conclusory statements. Finkelstein
writes that I “significantly [misrepresent]
what Morris writes in Righteous
Victims.” These are easily falsifiable
charges. All one has to do is to ask
Morris himself what he thinks of my
characterization of his scholarship and
findings. Martin Solomon, a professor at
Florida Atlantic University, wrote to
Morris, asking him what are “his feelings
concerning the manner in which Alan
Dershowitz uses citations from ‘Righteous
Righteous Victims‘ in his ‘The Case for Israel‘”
and whether Morris “still hold[s] the
views that Dershowitz attributes to
[him]….” Morris replied that Dershowitz
was “right about [his] views,” even
adding that one could “read [Morris’s
books] and arrive at the same conclusions,
bypassing Dershowitz.”

(3) Desch writes that Finkelstein
proves that I violated “the spirit, if not
the exact letter” of Harvard’s plagiarism
prohibition. Finkelstein first claimed
that I did not write The Case for Israel.
As he had with other Jewish writers,
Finkelstein suggested that the Mossad
or AIPAC had written my book for me.
When I revealed the handwritten manuscript–
I do not type or use a computer–Finkelstein changed his story to
plagiarism. Finkelstein’s accusation
boils down to a claim that I “lifted” quotations
from Joan Peters. Yet I cite
Peters eight times, as anyone perusing
my book can easily see. I even stated
that “I do not in any way rely on her
demographic conclusions or demographic

I immediately asked Harvard to investigate
Finkelstein’s phony charge, and
Harvard conducted an independent
investigation by former president Derek
Bok. Finkelstein acknowledges that
“former Harvard president Derek Bok,
‘a scholar of unquestioned integrity,’ had
looked into the charges against Dershowitz
and ‘found that no plagiarism
had occurred.’ The matter was ‘closed.'”
In addition to being fully exonerated by
Harvard University, I have been cleared
by James Freedman, former president
of the American Academy of Arts and
Sciences, The New York Times, and
numerous professors and librarians.

Desch relies on Finkelstein’s accusation
that I “direct [my] research assistant
to go to certain pages and notes in
Peters’s book and place them in [my]
footnotes directly.” As Finkelstein
wrote, “[I]n the [galley] proofs [of The
Case for Israel], it … says: Copy from
Joan Peters. It does. … There was no
question about it.” He thus alleges that I
instructed a research assistant to “copy”
from another author without citations.
But he simply makes up the word
“copy.” The note says precisely the
opposite: “cite sources on pp. 160, 485,
486, footnotes 141–145.” The instruction
is to be certain that the material is properly
cited, as it was to the original
source. This is not proof of plagiarism;
it is proof of scholarship.

Yet Finkelstein persists in making this
charge since it is part of his long pattern
of leveling personal attacks against
those who support Israel or justice for
Holocaust survivors, rather than engaging
them on the merits of their views. I
fully document this pattern in Chapter 16
of my book, The Case for Peace. Desch
goes even further, suggesting a Jewish
conspiracy involving Harvard’s president
Lawrence Summers, The New York Times,
and other pro-Israel advocates.

(4) Finally, Desch says that I
“launched an extraordinary campaign to
prevent [Finkelstein’s] book’s publication.”
But as I wrote to the University of
California Press:

“I have no interest in censoring any
publication. But I do insist that a book,
‘a large part of which is devoted to Alan
Dershowitz’ has been checked for accuracy
and that all appropriate measures
have been taken to assure that its biased
and defamatory author does not include
within it maliciously false information.”

Among Finkelstein’s defamations are
his allegations that I “almost certainly
didn’t write” The Case for Israel, “and
perhaps [he] didn’t even read it prior to
publication.” Finkelstein even suggests
that all of my books are written for me
by the Israeli Mossad: “[I]t’s sort of like a
Hallmark line for Nazis….[T]hey churn
them out so fast that he has now
reached a point where he doesn’t even
read them.”

Finkelstein has attempted to frame
Beyond Chutzpah’s publication as a triumph
for academic freedom. This dispute,
though, has never been about academic
freedom. Nobody ever tried to
prevent Finkelstein from publishing his
bigoted falsehoods. The dispute has
always been about academic standards.
In order to deflect attention away from
their lack of academic standards and
hard-left anti-Israel bias, Finkelstein and
his publisher have lied about the issue of
academic freedom.

Nobody has ever tried to censor
Finkelstein’s drivel. He can always publish
it with presses that acknowledge
their anti-Israel bias. The issue is, and
has always been, one of academic standards:
how could the University of California
Press publish a work so lacking in
standards, so filled with misquotations,
falsifications, and faked data by a failed
academic with a well-deserved reputation
for the “pure invention” of his
sources? No objective university press
would have published this sequel to a
book The New York Times called a “variation
on the anti-Semitic forgery, ‘The
Protocols of the Elders of Zion.'”

The most telling sentence in Desch’s
article comes near the end, when he
concludes: “Even if Finkelstein’s most
serious charges are not true, it is
nonetheless a scandal that Dershowitz’s
sloppy book was widely and favorably
reviewed in many prominent places,
including The New York Times, and
became a national bestseller.”

The sentence construction is typical
of both extremist left-wing (Finkelstein)
and right-wing (The American Conservative)
anti-Israel hatemongers. Even if
the facts aren’t true, Desch believes,
naked animus toward Israel is sufficient
to sustain his arguments. His bigotry is

—Alan Dershowitz

Desch replies:

Alan Dershowitz calls Norman Finkelstein’s
new book Beyond Chutzpah
“drivel.” But that is hardly a fair assessment.
The book was published by the
University of California Press—one of
The Nation‘s leading academic publishers—
after an exceedingly thorough and
scrupulous review process. The manuscript
was sent to six external reviewers
(most academic presses solicit advice
from just one or two), vetted by lawyers
in both the United States and Britain
(highly unusual for a scholarly book),
and then subjected to rigorous factchecking
during the production phase
(also atypical). The reason Dershowitz
is so hostile is that Beyond Chutzpah
argues that in The Case for Israel he misappropriated
and misconstrued other scholars’ work.

On the former charge, Finkelstein
identifies at least 20 instances of nearly
identical quotes and citations in Dershowtiz’s
The Case for Israel and Joan
Peters’s widely discredited From Time
Immemorial that were not properly
attributed (e.g., he directly cited Mark
Twain when he should have indicated
that he was using Twain as quoted in
Peters). In essence, Finkelstein deals
Dershowitz a double blow: for inappropriately
using another scholar’s work
and for doing so from this debunked

Dershowitz’s response is first to build
a straw man, claiming that Finkelstein
contends that he did not write the book.
This charge is not made in Beyond
Chutzpah, but tellingly, Dershowitz
nonetheless devotes much effort to
knocking the stuffing out of it. He then
invokes testimonials to his scholarly
integrity from his ex-boss, former Harvard
president and law school dean
Derek Bok, and his friend, former Dartmouth
president James Freedman,
when it would be more convincing if
they had provided detailed responses to
Finkelstein’s specific charges.

Dershowitz also misconstrues the
work of Israeli historian Benny Morris.
It is irrelevant that the post-al Aksa
Intifada Benny Morris, who has publicly
broken with his former comrades in the
peace camp and now endorses ethnic
cleansing, has come around to agree
with Dershowitz’s position on the
Israel-Palestine conflict. Rather, the question is
whether Dershowitz can base his
defense of Israel on Morris’s earlier scholarly work.

Let me offer one telling example of the
incompatibility of their overarching
arguments. In The Case for Israel, Dershowitz
argues that it is “impossible to
understand the conflict in the Middle
East without accepting the reality that
from the very beginning the strategy of
the Arab leadership has been to eliminate
the existence of the Jewish state,
and indeed any substantial Jewish population.”
In contrast, in his fine book
Righteous Victims, Morris quotes with
approval David Ben-Gurion’s 1938
admission, “When we say that the Arabs
are the aggressors and we defend ourselves—
that is only half the truth. … the
fighting is only one aspect of the conflict,
which is in its essence a political one.
And politically we are the aggressors and
they defend themselves.” Dershowitz
can only rely on Morris the neo-Likudnik
by twisting the evidence and interpretations
of Morris the “new historian” to fit
Dershowitz’s own political agenda of
defending Israel against all critics, as
Finkelstein amply documents.

Unable to win the case against Finkelstein
on its intellectual merits, Dershowitz
apparently tried to block publication
of Beyond Chutzpah. Although
Dershowitz denies this, he so far has not
provided more than selective excerpts
from his pre-publication letters to the
New Press, the University of California
Press, and the governor of California,
and those from the New York law firm
Cravath, Swaine & Moore acting on his
behalf, to buttress his claims that his
extensive letter-writing campaign merely
sought to ensure that Beyond Chutzpah
did “not include maliciously false information.”
Since he has not released the
full texts, the best we can do is judge
these letters by how they were understood
by their recipients.

UC Press Director Lynne Withey, in an
interview with Inside Higher Ed, characterized
them as an effort to “stop publication
of the book.” In an account of
the affair in The Chronicle of Higher
, Finkelstein’s editor concluded,
“the [legal] threat to the press
was real.” The Los Angeles Times quoted
Gov. Arnold Schwarzenegger’s legal
adviser’s reply to one of Dershowtiz’s
letters soliciting “the Governor’s assistance
in preventing publication of this
book.” If Dershowitz really wants to
clear the air, he should release the full
text of these letters and let the rest of us
ascertain his intent.

Having failed to prevent publication
of Beyond Chutzpah, Dershowitz is now
fighting a desperate, rear-guard action to
discourage people from reading it. His
strategy appears to be to twist the arguments
and impugn the motives of
anyone who endorses the book.

One example of such twisting is his
insinuation that I have not read his book
Why Terrorism Works. Had I done so,
he claims, I would recognize that he is
actually an opponent of torture. In fact,
I have read it carefully but remain
unconvinced that legalizing torture
through judicial warrants will reduce its
frequency and severity. Even with judicial
sanction, any justification for torture
still presents a slippery slope, as
the famous “ticking bomb” rationale has
proven in Israel and the United States in
recent years. I also had trouble taking
seriously his opposition to torture after
reading of his preferred method—sterile
needles under fingernails—and his
cavalier conclusion that “pain is overrated.”

Not satisfied simply to twist my arguments,
Dershowitz then impugns my
character and motives for favorably
reviewing Finkelstein’s book. It is
absurd, on the face of it, to attribute anti-Semitism
to a gentile who favors the
scholarship of one Jew over that of
another. But this is par for the course
with Dershowitz. In The Case for Israel,
he equates most criticisms of the Jewish
state with anti-Semitism. Now he suggests
that criticism of his work is tantamount
to anti-Semitism. The fact that
Dershowitz must fall back on name calling
to defend himself suggests that he
knows full well that he cannot win the
debate in the scholarly marketplace of

—Michael Desch

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Finkelstein comments:

I would want briefly
to supplement some of Professor Desch’s comments.

Point (1) in Dershowitz’s letter.
Although it might seem that the quote Dershowitz cites in his
letter comes from Why Terrorism Works, it does not. Dershowitz keeps two sets of books. Whenever he gets called on one of his more outrageous statements, Dershowitz rushes into print with
a contrary opinion, and then cites the revisionist account as
the unique and authoritative one. So, after receiving harsh
criticism for what he said in Why Terrorism Works and attendant interviews, Dershowitz wrote an essay for a book edited by
University of Texas Law School professor Sanford Levinson,
from which the cited quote in his letter comes (Alan Dershowitz,
“Tortured Reasoning,” in Sanford Levinson, ed., Torture:
A Collection
(New York: Oxford University Press, 2004), p. 266).
Apart from what Desch rightly quotes from Why Terrorism Works, compare what Dershowitz was saying at the time Why Terrorism Works came out:

Any reason why you use needles under the fingernails as your torture method of choice?

A reviewer criticized me for that. I purposely wanted to do that. I don’t want to be vague. I wanted to come up with a tactic that can’t possibly cause permanent physical harm but is excruciatingly painful. I agree with the reviewer; he’s right when he said, “different strokes for different folks.” For different people, different kinds of nonlethal torture might be more effective. Obviously, to the experts, having seen the movie “Marathon Man,” drilling the tooth might be better than some. But the point I wanted to make is that torture is not being used as a way of producing death. It’s been used as a way of simply causing excruciating pain.

Aren’t there other forms of torture that would be less painful than that, that you might have considered?

But I want more painful. I want maximal pain, minimum lethality. You don’t want it to be permanent, you don’t want someone to be walking with a limp, but you want to cause the most excruciating, intense, immediate pain. Now, I didn’t want to write about testicles, but that’s what a lot of people use. I also wanted to be explicit because I didn’t want to be squeamish about it. People have asked me whether I would do the torturing and my answer is, yes, I would if I thought it could save a city from being blown up.


Point (2) in Dershowitz’s letter. To figure out who’s telling the truth,
it is a simple exercise to compare Dershowitz’s rendering of Morris with
what Morris actually wrote. Dershowitz never points to a single instance where I have misrepresented this juxtaposition in my appendices. Rather, he gestures to an alleged email correspondence between a FAU professor and Morris. Several weeks ago I requested from this FAU professor a copy of his alleged email correspondence to verify that Dershowitz accurately rendered it. The professor never responded. You will notice that, in Dershowitz’s rendering, two questions were allegedly put to Morris: on the use of citations and on representation of Morris’s current opinions. The alleged reply from Morris (as rendered by Dershowitz), however, seems only to bear on the representation of his views, not on the matter of citation. It is also peculiar that Dershowitz didn’t himself write Morris soliciting a letter of support. (Or did he but didn’t get one?) Before assuming that Morris has confirmed Dershowitz’s scholarship, I would want to see the actual email correspondence. This is an elementary precaution when dealing with Dershowitz. Finally, it is noteworthy that nowhere on his website did Dershowitz post this vindication from Morris, although he had plenty to say about me. Is this because he worried that someone might check up on it?

Point (3) in Dershowitz’s letter. Everyone who has actually examined the evidence that I assemble in Appendix I of Beyond Chutzpah concurs that I make a compelling case. (See, e.g., Jon Wiener in The Nation, Amy Wilentz in the Los Angeles Times, and Neve Gordon in The National Catholic Reporter.)
I am not aware of anyone who still supports Dershowitz in his denials since publication of my book. It is unclear what evidence Bok actually examined, since he never requested from me a copy of the advance proofs, while it is also worth bearing in mind that, scandalously, Bok acquitted Laurence Tribe of plagiarism charges, although the evidence was (again) overwhelming. The testimony of James Freedman is rather underwhelming, given that he and Dershowitz are – by their own mutual reckoning – best friends.

Point (4) in Dershowitz’s letter. The adage, “Where there’s smoke, there’s
fire,” would seem to apply in Dershowitz’s case. Consider what an avowed
admirer of Dershowitz (in particular, his views on Israel) recently wrote
in the Claremont Review of Booksregarding another opus to which Dershowitz’s
name is affixed as author:

The Rights and Wrongs of Alan Dershowitz
By Hadley Arkes

The Claremont Institute | November 4, 2005

A review of Rights From Wrongs: A Secular Theory of the Origin of Rights, by Alan M. Dershowitz

There he goes again: Alan Dershowitz has turned out another book. I know, I know, but look: over the years he has occasionally said sensible and even compelling things on the matter of Israel; and he has been a model of sobriety on dealing with terrorism and detention when compared with other, rather untethered, people on the Left. In fact, back in 1970, he wrote a piece for Commentary on preventive detention in Israel. Without quite intending it, he virtually replicated and amplified Abraham Lincoln’s case for the suspension of habeas corpus, and did it in terms that resonated with our own time.

How could Dershowitz have been so wrong on every aspect of these matters? The charitable answer is that this is not his usual field. He was operating out of the area of his main strength. Of course, with the recent experience of Professor Dershowitz’s colleagues at the Harvard Law School, other explanations suddenly arise: Professors Tribe and Ogletree explained some egregious lapses into plagiarism by reporting that certain books of theirs were written in part by their student aides, with only a cursory review. A mischievous hypothetical: could it be that parts of Dershowitz’s book are in conflict with one another because they were written by different hands? In a curious, telling passage, he refers to the author of the Dred Scott opinion as “Justice Roger Tawney,” and to the author of the Brown v. Board of Education decision as “Justice Earl Warren.” No one familiar with these cases, or the law, would have misspelled the name of Roger Taney; and he would have quickly corrected the text to read, in either instance, Chief Justice Taney and Chief Justice Warren. All of us need proofreaders, but there is a strong temptation to think that these pages were never read by anyone who had more than a passing acquaintance with the subject. The publisher, Basic Books, surely owed their author, and their audience, a better performance than this.

Hadley Arkes is the Ney Professor of Jurisprudence and American Institutions at Amherst College, and a fellow of the Claremont Institute.