Taking the Stand

by Alan Dershowitz

  We were thrilled that our campaign—involving not quite the “large numbers” reported—had succeeded. We regarded it as a victory for religious freedom. It persuaded me that even small efforts could have an impact on large organizations—a lesson that has stayed with me over my career. And it enhanced my admiration for the UN, which had shown sensitivity to religious minorities.

  During my high school years, my class made several visits to the UN, where we watched the General Assembly in action. We debated whether “Red China should be admitted to the UN.” (I took the affirmative side.) Several of us joined the “United Nations Association,” and we participated in “model UN” sessions, each playing the role of a representative from a particular country. No one could have predicted, in those days, how the UN would soon become an organization that stood idly by and even facilitated genocide, terrorism, and other human wrongs by so many of its own member states.

  WHAT ARE HUMAN RIGHTS?

  During my college and law school years, most of my focus was on domestic civil rights.

  After I became a teacher and a lawyer, my involvement in the human rights movement broadened, both academically and politically. I taught courses at Harvard Law School on human rights with Professors Telford Taylor and Irwin Cotler and wrote numerous articles on various aspects of the subject.

  In my academic work, I began to explore the meaning of the term “human rights,” as contrasted with “civil rights,” “civil liberties,” and “political rights.”6 To be an advocate of human rights meant to me going beyond one’s particular group. A Jew who fights only against anti-Semitism is an advocate for particular rights, as is an African-American who struggles only against racism, a woman who only opposes sexism, a gay person who fights only homophobia, or a person of the left who supports only left-wing causes. These are commendable activities, but they do not qualify as advocacy of human rights.7 Just as joining the “First Amendment Club” requires the active defense of expression one deplores,8 so too, joining the “Human Rights Club” requires an active commitment to the universal rights of all people, even those you disagree with or despise. The membership roles of both “clubs” are, tragically, quite small under these criteria, though many claim their honorific mantles.

  Being a member of the Human Rights Club does not require abstaining from advocacy for one’s own group (however defined). But it does require more universal advocacy as well. The motto for the club might well be the famous dictum of the Jewish sage Hillel: “If I am not for myself, who will be for me, but if I am for myself alone, what am I? And if not now, when?”9 I have tried hard to live by these words—which hang on the wall in my office—and to maintain my membership in the Human Rights Club, although my priorities have changed with shifting threats to particular groups over time.

  As a young lawyer, I witnessed little threat to the Jewish community in America, despite lingering anti-Semitism in law firms, social clubs, and some universities and neighborhoods. I fought against these remnants of bigotry, but it was clear that the trend was in the right direction: top-down anti-Semitism and elite discrimination against Jews were on the way out. Jews, I felt, did not need my help. Certainly not as much as other groups.

  THE VIETNAM WAR

  During the height of the conflict over the Vietnam War, I represented numerous defendants, protestors, and civil disobedients. I also advised lawyers who were suing the government in an effort to stop what they believed was an illegal war. The faculty of Harvard Law School was divided over the morality, legality, and effectiveness of the war, and there were interesting discussions in the faculty lunchroom involving such luminaries as Archibald Cox, Erwin Griswold, Abram Chayes, and Paul Freund. I decided that these discussions should be shared with our students, and so I organized the first law school course on the Vietnam War. I felt the debate over the war was a teaching moment and we had to take advantage of it. I prepared a set of legal materials and invited professors with different views to share their perspectives with the students. The course was a remarkable success. Students attended in droves, and the media covered the lectures. The New York Times story was headlined 400 ENROLL IN A HARVARD COURSE ON “LAW AND THE LAWYER” IN THE VIETNAM WAR:

  More than a dozen professors have volunteered as teachers, including Prof. Derek C. Bok, the dean-designate of the law school.

  Professor Dershowitz said that the participating professors “reflect every view.”… The course would be the first of its kind offered in any law school in the United States. “It is our hope,” he said, “that this will be a pilot and a model for other law schools throughout the country.” …

  He said the course would not be “biased or political,” but would “look at these issues in a detached, lawyer-like, scholarly way.”10

  Time magazine also ran a story:

  Harvard Professor Alan Dershowitz had just finished giving the first class in a brand-new, ten-week Harvard course entitled “The Role of the Law and the Lawyer in the Viet Nam Conflict.” It has no exam or grades, offers no credit, and involves a good deal of reading over and above the students’ already heavy regular work load. But it has a record enrollment of more than 400—one-quarter of the student body—and is one of the most popular courses in the 150-year history of the school.11

  Lawyers who were contemplating legal action against the war sat in on the class, as well as several faculty members. I received dozens of requests for copies of the materials from professors at other schools who wanted to offer the course to their students. For me, it was the beginning of a practice that I have followed throughout my teaching career: offering courses about highly relevant contemporaneous issues that respond to interesting teaching moments. Over the half century of my teaching at Harvard Law School, I have offered a new course just about every year, many of them dealing with pressing issues of human rights generated by the conflicts of the day.

  In addition to teaching courses, I wrote articles on human rights and brought lawsuits challenging human rights abuses. And I participated in political campaigns to end apartheid, the war in Vietnam, and other human wrongs. My early work on human rights won me a coveted Guggenheim Fellowship and other honors. It also earned me the media title “Global Watchdog.”12 In an article by that name, a reporter interviewed me about the core concept of human rights. I said:

  Everyone should be free to express opinions and views, to read what one chooses, to have some influence in the process of government, to leave one’s country. One should be free from arbitrary arrest and trial, torture and execution.13

  I told the reporter that

  I try hard to balance my attack, right and left—for every attack on … a right-wing repressive government, there should be an attack on a left-wing repressive government.14

  I also explained that

  in practice you can do a lot to implement human rights in this generation but in teaching you can both help this generation and help plant the seeds for progress later on.15

  Despite my deep involvement in human rights work, I wondered whether I was really having a discernible impact on the problems of the world. Unlike litigation in American courts, where the results are immediately evident, the impact on foreign countries of petitions, op-ed articles, congressional resolutions, and other conventional human rights activities tends to be less visible or immediate.

  I will never forget one encounter that made it all seem worth the apparently unrewarded efforts. I attended a concert by the great Russian cellist Mstislav Rostropovich, several years after he left the Soviet Union. Since he had been a sometimes threatened advocate of human rights in Moscow, I wanted to meet him. So I stood in line waiting to shake his hand after the performance. When I introduced myself, he grabbed me in a long bear hug. “You gave us hope,” he told me. “We knew you were out there fighting for our rights, even though we couldn’t contact you. You made us feel safer.”

  I had no idea that Rostropovich, or any of the other artists or dissidents whose rights we advocated, had eve
r heard of us, or had any idea of what we were doing on their behalf. Rostropovich’s hug, and what he said, was more than enough compensation for all the pro bono work we had done on behalf of dissidents and artists around the world.

  BEING MENTORED BY ELIE WIESEL

  I had become interested in the defense of Soviet dissidents after reading Elie Wiesel’s book The Jews of Silence,16 which first alerted me to the plight of Soviet Jewish and non-Jewish dissidents. It was an eye-opening book that contributed to changing the direction of my life, both professionally and personally, in several different ways. It bought home to me the need to reprioritize my human rights focus. It made me feel guilty for largely ignoring the plight of my own coreligionists in a distant land that continued to repress them. Wiesel made me realize that, perhaps in an overreaction to my Jewish background, I was following Hillel’s second admonition (“If I am for myself alone what am I?”) more than his first (“If I am not for myself who will be for me?”). I decided that I had to become involved in what was then an emerging human rights struggle. (I was influenced as well by my representation of Sheldon Siegel in the Jewish Defense League murder case, discussed earlier.)

  Reading Wiesel’s slim volume also provided the incentive for me to try to meet the world’s most influential Holocaust survivor. I had read his accounts of life during and after his confinement at Auschwitz-Birkenau, but I could not personally identify with that dark period of his tragic life. Now he was writing about a current crisis that my generation of Jews could do something about. A mutual friend—Bernard Fishman, a great New York lawyer—arranged a meeting, and since that time Elie has served as a guide, mentor, and friend. I have sought his advice on many issues, and he has sought mine. We have worked together, commiserated about the state of human rights, and have tried, along with others, to repair the world.

  As a professor of Public Law, I get to nominate candidates for the Nobel Peace Prize. In 1986, I nominated Elie Wiesel. In my letter of nomination, I wrote the following:

  No one in the world today deserves the Nobel Peace Prize more than Elie Wiesel.

  To understand Professor Wiesel’s unique and immeasurable contribution to peace, one must only imagine how it might have been without a Wiesel.

  There are many excellent reasons for recognizing Professor Wiesel. But none is more important than for his role in teaching survivors and their children how to respond in constructive peace and justice to a worldwide conspiracy of genocide, whose complicitous components included mass killing, mass silence, and mass indifference. Professor Wiesel has devoted his life to teaching the survivors of a conspiracy which excluded so few, to reenter and adjust in peace to an alien world that deserved little forgiveness. He has also taught the rest of the world the injustice of silence in the face of genocide. Wiesel’s life work merits the highest degree of recognition—especially from representatives of the world that stood silently by.

  Many others wrote on his behalf as well, and Wiesel was awarded the prize.

  Several years later, I urged the Nobel committee to use Elie Wiesel as its model for selecting future Nobel Prize winners because

  many of the Nobel Peace Prize winners [worked only] on behalf of their own people, but Elie Wiesel’s work is far more universal.… Wiesel makes no distinctions based on religion, race, creed or even enmity against his own people. He will bear witness, even at the risk of his life, to the suffering of any human beings, so long as they are not the aggressors. And for Elie Wiesel, tomorrow is never an excuse for not acting today.17

  Over the years, Elie and I have worked closely together on issues relating to Soviet dissidents, the Armenian genocide, the massacres in Rwanda and Darfur, efforts to delegitimate Israel, and other human rights concerns.

  Mitterand’s Joke

  Elie and his wife, Marianne, invited me to their home in New York for an intimate dinner with French president François Mitterrand. Elie and his wife speak fluent French, but I do not, and neither did the two other couples at the dinner. Mitterrand spoke passable English, but he insisted on conducting the entire conversation in French, with a British translator at his side. At one point, Mitterrand told a joke in French. None of the French-speaking people at the table laughed. His translator then repeated it in English, and everyone laughed hysterically. I asked Elie whether the joke was funnier in English than in French, and he replied, “No, but Mitterrand doesn’t know how to tell a joke; his translator does.”

  In 1982, Elie was asked to present me with the William O. Douglas Award by the Anti-Defamation League. In presenting the award, he paid me the highest compliment: “If there had been a few people like Alan Dershowitz during the 1930s and 1940s, the history of European Jewry might have been different.” Although I have always believed that these words were exaggerated—no one could have stopped Hitler’s maniacal determination to kill the Jews of Europe—I have tried to hold myself up to his expectations. I recall his words every time I think of slowing down or doing less to protect the victims of human rights abuses.

  Recently, Elie had quintuple bypass surgery. I had lunch with him shortly thereafter, and all he could talk about was the future and how important it was to keep up the struggle for human rights. We also discussed teaching a joint seminar with my Harvard and his Boston University students. Elie Wiesel is truly one of the great men of the twenty-first century. When I think of how close he came to not surviving, and when I think of how many other Elie Wiesels were lost in the flames of Auschwitz, I begin to understand the full horrors of the Holocaust.

  How Many of You Have Suffered from the Holocaust?

  During a talk to the lawyers of Hamburg, I asked audience members, “How many of you have suffered from the Holocaust?” A few hands of elderly lawyers were raised. I then asked, “How many of you or your family members have had cancer, coronary problems, diabetes, or a stroke?” Nearly every hand went up. I paused and then asked, “How can you be sure that the cures for those diseases did not go up in the smoke at Auschwitz or Treblinka?” There was a stunned silence. Following my talk, dozens of the German lawyers came up to me and said, “We too have suffered from the Holocaust.”

  In 1973, Elie urged me to travel to the Soviet Union to provide legal services to Jewish refuseniks and others who faced imprisonment for their advocacy of human rights. I went there on several occasions during the 1970s and ’80s and filed briefs on behalf of dissidents refuseniks and others. I have written extensively about this aspect of my human rights work elsewhere18 and will not repeat it here. Suffice it to say that my unwillingness to limit my advocacy only to Jewish refuseniks in the Soviet bloc—I also worked on behalf of non-Jewish dissidents, such as Andrei Sakharov and Václav Havel—caused a rift with some Jewish and Israeli organizations, but I insisted that human rights must extend to all who are oppressed.

  One of my Soviet clients was Sylva Zalmanson, who after several years of confinement was released from the Soviet Gulag. When she finally came to America, I, along with her other American lawyers, arranged to meet her over lunch at Lou Siegel’s, a kosher restaurant in Manhattan. It would be our first “reunion”—hopefully the first of many—with the clients we had never met. Our encounter was emotional. Knowing of Sylva’s love for all things Jewish, we decided to order a real old-fashioned Jewish meal for our Friday lunch. The first dish was cholent, a delicious concoction of beans, potatoes, barley, and a small amount of beef, cooked for hours in a savory sauce. When the cholent came, I turned to Sylva and explained that it was a traditional dish served in Jewish homes on the Sabbath. She took one taste of it, and her face turned sad—and then she burst out laughing as she exclaimed, “Traditional Jewish food? This is Russian prison food! I’ve just been through eating food like this for four years!” Only then did we realize that the old-fashioned food, which was such a treat for us, was peasant food, designed to use the least amount of meat possible. The same economics that dictated the diets of our peasant forebears now determined the menus prepared by the prison authorities. We
all had a good laugh, and I ordered a slice of rare roast beef for our guest.

  During one of my trips to Moscow, I met a young man who had been a dissident and refusenik but who had been drafted into the army because of his activities. He wanted to smuggle a message out in his own voice, using his broken English, to seek support from human rights organizations throughout the world. Tape recorders were not permitted in the Soviet Union at that time, and it was illegal to smuggle out tapes. But he had managed to get his hand on a primitive cassette recorder and he brought me a copy of a Tchaikovsky tape that was being sold in the Soviet Union. In order to prevent rerecording over the tape, certain changes had been made in the cassette. My Soviet client knew how to override those changes, and he managed to record his statement in lieu of the third movement of Tchaikovsky’s Fifth. He told me that it was always wise to have the recorded statement in the middle of the music, because Soviet authorities tend to listen to the beginning and end of any music tape to ensure that it does not contain forbidden material. I managed to get his statement back to the United States. Shortly thereafter he was released and came to live in my home while he was trying to get into school here.

  Although my interest in the Soviet Jewry movement was stimulated by Elie Wiesel’s book, a more personal encounter got me interested in a case involving one particular Romanian family. In 1971, during my fellowship at the Center for Advanced Study in the Behavioral Sciences on the Stanford campus in Palo Alto, California, I met a fellow who had been invited from Communist Romania, Michael Cernea. He was chairman of the Department of Sociology and Anthropology at the University of Bucharest and an active member of the Romanian Communist Party. On the day before Rosh Hashanah, he invited me to take a walk with him through the woods. When we were away from any possibility of surveillance, he told me that his original name was Moishe Catz, that he was a committed Jew, and that he desperately wanted to defect along with his family from Communist Romania and move either to the United States or Israel. He swore me to secrecy and asked if I would become his pro bono lawyer in what would surely be a long-term activity, since his family was being held hostage in Romania. I immediately agreed and invited him for dinner that night at my home, where we stayed up until dawn, listening to Jewish cantorial music, which he had not heard since his youth some thirty years earlier. Tears flowed freely from his eyes.