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The 'Preventive Constitution' in the Age of NSA Surveillance

On Dershowitz’s ‘Heartland of Criminality’

On June 5 of this year, the Guardian reported “the National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecom providers, under a top secret court order issued in April. The order, a copy of which has been obtained by the Guardian, requires Verizon on an ‘ongoing, daily basis’ to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries. The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk—regardless of whether they are suspected of any wrongdoing.” The Guardian also reported that the NSA had been given “unlimited authority” by the secret Foreign Intelligence Surveillance Court to collect the phone-call records.

The constitutional significance of this story is that the NSA was engaged in a massive, prima facie violation of the Fourth Amendment, and that this unconstitutional conduct was “ordered” by a secret court that was established by Congress.  

Two days later, on June 7, Harvard law professor Alan Dershowitz gave an interviewto the Internet-based Newsmax, in which he attacked the journalist who reported the story for the Guardian:

Even Benjamin Franklin was wrong when he said those who would give up any privacy or rights in the name of security deserved neither. That’s nonsense. That’s hyperbole. That’s extremism. That’s the kind of thing we expect from the guy who wrote the story for the Guardian, Glenn Greenwald, who, you know, never met a terrorist he didn’t like and never met an American government official he liked. We need nuance in the discussion. We need to have some compromises. We've made compromises over the years…. But I don’t want these extreme radicals who hate America and love terrorism to be dominating the debate, and that’s what’s been happening…. Do not believe anything you read from Glenn Greenwald. And anything you read in the Guardian take with a grain of salt. 

About two weeks later, on June 24, Dershowitz argued on CNNthat Greenwald had committed a felony by revealing the contents of the NSA documents that had been leaked by Edward Snowden. In response to a suggestion by CNN’s Piers Morgan that Greenwald’s NSA-related reporting “borders on criminality,” Dershowitz said:

Well, it doesn’t border on criminality—it’s right in the heartland of criminality. The statute itself does punish the publication of classified material, if you know that it’s classified. And so, Greenwald, in my view, clearly has committed a felony. And for [Greenwald] to take umbrage at the question—now, he’s right though that the government doesn’t usually go after the publishers. They don’t go after the New York Times, the Washington Post, in the Pentagon Papers case, though they could have! They don’t go after other newspapers—in the Wikileaks case—though they could have! They’ve made a discretionary decision to go after the leaker but not the publisher. Look, Greenwald’s a total phony. He is anti-American, he loves tyrannical regimes, and he did this because he hates America.

These comments—from both the June 7 and June 24 interviews—are disturbing for reasons that go beyond, by now, the banality of Dershowitz’s compulsive insults.

Here’s why. Dershowitz is an advocate, if not an intellectual architect, of the counterterrorist “preventive state,” which, to boil it down, seeks to reinterpret U.S. law (and international law) to permit traditionally unconstitutional and criminal conduct by the government in the name of preventing terrorism.


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Thus, for Dershowitz, it’s not the government’s secret collection of phone data of the American citizenry that lies “in the heartland of criminality,” it’s the press exposé of the secret government program. Dershowitz thereby kills two amendments in the Bill of Rights—the Fourth and the First—with one stone. These kinds of attacks on the Bill of Rights lie in the heartland of Dershowitz’s preventive state, which from his own perspective is his legacy achievement.    

In October of this year, the lead story, so to speak, on the Harvard University web site,,reported that “after five decades as one of the most visible and vocal presences at Harvard Law School, Alan M. Dershowitz is in his final semester of teaching and will relinquish his chair at the end of the academic year.”

The same piece quoted Dershowitz as follows: “I’ve written important articles on prevention, on the concept of the preventive state, how the law is moving much more in an area of trying to prevent wrongs than trying to deal with them after they occur. That will be my academic/intellectual legacy.”

Likewise, in his just-published autobiography, Taking the Stand: My Life in the Law(Oct. 15), Dershowitz writes:

Since the time I wrote these words [excerpts from his law review articles on the preventive state], “the preventive state” has expanded in scope, especially with regard to the prevention of terrorism. Many constitutionally and morally dubious measures—from Guantanamo, to waterboarding, to massive electronic snooping—have been justified in the name of preventing terrorist attacks. Yet we still have not come up with a satisfactory jurisprudence that appropriately balances the legitimate concerns of the government in preventing terrorism against the compelling need to preserve the rule of law.

At first glance, this may sound fine—that is, the call to “balance” law with terrorism prevention. However, as one reads elsewhere in Dershowitz, including the statements above to Newsmax and CNN, in Dershowitz’s 2006 manifesto of the counterterrorist preventive state, Preemption: A Knife that Cuts Both Ways, and in his post - 9/11 commentary, which includes “Big Brother Where Art Thou? Rethinking Liberty in the Age of Terrorism” (2001), there is far less temperance in Dershowitz’s Brave New Jurisprudence than one might be led to believe by reading his new autobiography.

The jurisprudential formula for Dershowitz’s preventive state for the most part is rather simple: if it’s deemed to prevent terrorism, it’s prima facie legal. Thus, the government’s secret surveillance program in violation of the Fourth Amendment is preventive surveillance, and thus permissible; the press exposé of NSA surveillance lies in the heartland of criminality; torture, against which there is an absolute ban under the Convention against Torture, is preventive interrogation; preventive detention, anathema under traditional American law, is passed by the Congress and signed into law by the president as part of the FY 2012 National Defense Authorization Act; killing foreigners and American citizens overseas with aerial drones armed with missiles, without a scintilla of due process, is preventive targeted killing.  

In other words, take the Constitution, place the word “preventive” in front of it—“Preventive Constitution.” That was easy. But there goes the real Constitution. There goes the Bill of Rights. And, if allowed to continue, there goes the United States.

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