Taking the Stand

by Alan Dershowitz

  Several years later, we were able to arrange for him and his wife to be out of the country at the same time. Both were attending academic conferences. I arranged for them to obtain political asylum at the American embassies in the countries they were visiting. They both defected at the same moment. But they had to leave their two children and Michael’s elderly mother behind. We worked tirelessly to get them out, petitioning members of Congress, the State Department, and the White House. Finally after a year of being left alone in Bucharest, the rest of the family was permitted to leave. Senator Ted Kennedy played a key role in their release. The daughter, then of college age, moved in with my family, and I helped her to be admitted to Brandeis University. She is now a medical doctor. We have all remained close friends since that time.

  Another close friend who started out as a client is Natan Sharansky, now a prominent Israeli public figure. I have already recounted the story of my representation of him, but it is interesting to note, especially in light of Sharansky’s high position in the Israeli government, that when Sharansky was first arrested, the Israeli government wanted to have nothing to do with his case, since they regarded him as a human rights dissident rather than as a Prisoner of Zion. He was, of course, both. When he was finally released, some of the very same people who had fought hardest against Israel doing anything on his behalf were among the first to claim credit for his release.

  I will never forget how I watched my client walk—really bounce—across the Glienicke Bridge and into the safety of the West. I knew he was well even while watching him on television. Shortly thereafter I met him in person for the first time. He threw his arms around me and whispered in my ear, “Baruch matir asurim,” which means, “Blessed be those who help free the imprisoned.” Several years later I was being interviewed on a television show and the host asked me what my biggest fee had been. He thought I would mention the Michael Milken or Leona Helmsley cases, but instead I said it was in the Sharansky case. He expressed surprise, saying that he didn’t know Sharansky had any money. I said he did not, but that when he put his arms around me and gave me that hug and whispered those words, that was the biggest fee I ever earned.

  Another “payment” for my work was the opportunity to speak in Carnegie Hall on behalf of Václav Havel and other dissident artists in 1991.19 Several Americans who had fought for the human rights of censored artists were invited to read from and discuss works banned by repressive regimes. I had been part of a team of lawyers assembled to help Havel and other Czech dissidents get out of prison in the 1970s. The readers included Garrison Keillor, Marvin Hamlisch, Peter Ustinov, William Warfield, Martin Garbus, and Maurice Sendak. I was honored to be included among them. My mother loved showing her friends the Carnegie Hall program, with my name listed as a “performer.” She would tell them a variation of the old joke: A man asks a musician carrying a violin case, “How do you get to Carnegie Hall?” My mother’s answer: “Practice, practice, practice law, like my son.”

  The next time I saw Havel was in Jerusalem during the celebration of Israel’s sixtieth birthday.20 Havel, Sharansky, and I were on a panel together discussing human rights. When it was over, we got onto the same elevator with Mikhail Gorbachev. (It sounds like the beginning of a bad joke: “Havel, Sharansky, Gorbachev, and Dershowitz get into an elevator …”) Gorbachev turned to me and said, “You’re the big shot lawyer who tried to get these people out of prison. You did a good job, but I did a better job. I’m the one who got them out.” We all laughed. Then Havel turned to Gorbachev and asked, “Why didn’t you get us out sooner?” Gorbachev replied, “I’m not that good.”

  THE STRUGGLE AGAINST REAL APARTHEID

  My interest in South Africa apartheid began while I was editor in chief of the Yale Law Journal in 1961. An article was submitted on the legal structure of the apartheid system.21 At that time little was known about the legal aspects of this highly regulated practice, and this lengthy draft laid it out. It was my job to edit it so as to make it comprehensible to an American audience. It was shocking to me that only a few decades after the Nuremburg Laws in Nazi Germany, a “civilized” country, with a British and Dutch heritage, could construct a system of laws based on overt discrimination, under which a small white minority controlled a nation with a large black majority, and under which racial classifications determined who could vote, hold office, live in certain areas, be treated in good hospitals, attend public events, and enroll in schools. I was determined to help dismantle this system, and I actively joined in the campaign against it. But I was not willing to support the “blacklisting” of artists who had performed in South Africa. To me, this constituted reverse McCarthyism, even if it was in the interest of a just cause.

  As I wrote in a 1985 article:

  “The Register of Entertainers” to be shunned is officially published by the United Nations [and lists] the names of entertainers and actors who have performed in South Africa since 1981. Anyone whose name appears on the list is prohibited from performing at any function sponsored by the United Nations. Other organizations also use the U.N. blacklist to screen politically unacceptable artists.…

  Among those … on the blacklist are Ray Charles, Linda Ronstadt, Frank Sinatra, the Beach Boys, Cher, Goldie Hawn, Sha Na Na, Ernest Borgnine, and the British rock group Queen.

  Among those volunteering to perform [at a concert for African famine relief] was the rock group Chicago. But Chicago was on the blacklist. And because of the absolute prohibition against using blacklisted artists at U.N.-sponsored events, plans for the concert had to be postponed. It is ironic that some black African children may die of hunger because of the U.N. blacklist.22

  Woody Allen on Blacklisting

  I sent a copy of my article to Woody Allen, with whom I was then on friendly terms. He was a strong opponent of both apartheid and blacklisting.23 He wrote back, saying that

  on the face of it the issue certainly seems to me like blacklisting. I’m sure they make good arguments for it on the basis that a legitimate tactic of the United Nations is boycotting, but still I’m sure that if I examined it as closely as you have, I would find there would be no excuse for it. Thanks for keeping me informed. Best, Woody

  During the apartheid regime, I was invited to speak at the University of the Witwatersrand in Johannesburg. Many in that university had been on the forefront of opposing apartheid, and I was anxious to lend support to these efforts by delivering a strong human rights message. When I appeared at the South African consulate in Boston to receive my visa, the consul general had the Yale Law Journal article I had edited. He wanted to see a copy of my proposed speech. I refused, and my visa was denied. My first visit to South Africa came after the end of apartheid.

  I had hoped to try to get to Robben Island to meet with the imprisoned Nelson Mandela. I was working with Professor Irwin Cotler, with whom I had taught human rights at Harvard Law School, on a complicated legal plan to free Mandela.

  Our plan began following the arrest of an East German professor in Boston on charges of spying. I received a call from an East German lawyer asking if I could represent him. The East German lawyer—who was a well-known and trusted “spy swapper”—told me that he might be willing to arrange a “spy swap” for my client Anatoly Sharanksy. I told him that my client wasn’t a spy, so a “spy swap” was off the table. He then proposed a possible “prisoner exchange, including prisoners who were accused of spying but were innocent.”

  I called Irwin Cotler, who was working on both the Sharansky and the Mandela case. He suggested that we inquire whether there were any South African spies in Soviet bloc prisons, and whether South Africa might be willing to release Mandela as part of a prisoner exchange.

  In the end, Anatoly Sharansky was exchanged for an East German professor (who was represented by other lawyers), but we learned from the African National Congress lawyers that Mandela refused to participate in any prisoner exchange. He wanted to be released on his own terms, even though his decision would require h
im to remain imprisoned until his own terms were accepted by the South Africa government (which they finally were in 1990).

  My negotiations with the East German lawyer were shrouded in secrecy and included elements right out of a John Le Carré novel. We used code words over the phone and met in out-of-the-way places at unusal times. He was a man of his word and could always be counted on to honor his commitments. After the fall of the Berlin Wall, he was indicted on an assortment of concocted charges, and he sought my help, which I was pleased to give. Eventually, he was cleared of all charges.

  HUMAN RIGHTS IN ISRAEL

  A human rights case that tested my commitment to universal rights involved an Israeli Arab who was accused by Israel of assisting terrorism. He was being held in administrative detention, instead of being formally charged with a crime. I was in Israel at the time writing a long article on administrative detention24 (or as the United States government calls it, “preventive detention”). I was critical of the practice, though I understood why some Israelis believed it was necessary to combat terrorism. After meeting the Israeli Arab in the detention center and reviewing his case, I concluded that his detention was unjustified. I met with Israeli officials and urged them to reconsider his case. They did, and they released him. He moved to Lebanon, where he became an active member of the more moderate wing of the Palestine Liberation Organization. To my knowledge, he has never engaged in any acts of terrorism.

  I helped several other Palestinian prisoners and detainees as well. I also wrote critically of and litigated against several Israeli policies, including the use of unacceptable interrogation methods, the overuse of wiretaps, religious discrimination against women, and de facto discrimination against Israeli Arabs. Since the early 1970s, I have been a vocal and persistent opponent of Israeli settlements in the West Bank and Gaza.25 And after the war in Lebanon, I protested the overuse of cluster bombs that, though lawful, unduly endanger the lives of civilians.26 I have never believed that my strong, general support of Israel is in any way inconsistent with my opposition to, and criticism of, specific Israeli policies that violate neutral principles of human rights.

  Netanyahu’s Question

  Among the public figures I have counseled is Israel’s prime minister Benjamin Netanyahu. I had met Bibi when he was an MIT student in Cambridge in the early 1970s. We got to know each other when he served in New York as Israel’s representative to the United Nations. He has been to our home for dinner, and we have been at his. Over the years, he has sought my advice on legal and governmental matters, but not on Israeli domestic politics, which he knows I stay out of.

  Shortly after he first became prime minister, he invited me to his office on a Friday afternoon. My wife, our daughter, and I stood outside of the King David Hotel trying to hail a cab, but all the cabdrivers were heading home for the weekend. It looked like we might be late for our appointment with the prime minister. Suddenly a car pulled up. It was the mayor of Jerusalem, Ehud Olmert, saying, “Alan, you’ll never get a cab on a Friday afternoon. Where do you need to go?” I told him, and he agreed to drive us there. As I got into his car, a cabdriver pulled over, shouting, “I don’t try to run Jerusalem, why are you trying to be a cabdriver? Stop taking business from me.”

  When I got to the prime minister’s office, Bibi invited me to his secure private office. “There’s been something I have been waiting to ask you,” he said. I expected him to ask my advice on some critical security issue. He put his arm around me and whispered in my ear, “So, did O.J. do it?” I was taken aback, but I quickly responded, “So, Mr. Prime Minister, does Israel have nuclear weapons?” Bibi looked at me sternly and said, “You know I can’t answer that question.” I looked back at him and said, “Aha!” Bibi understood and we both laughed.

  HUMAN RIGHTS IN CHINA

  In 1979, Senator Edward Kennedy asked me to travel to China and report to him on the condition of human rights. The Cultural Revolution was just ending, and the first sparks of freedom were being ignited at a place in Beijing called “Democracy Wall,” where dissidents gathered and posted anonymous notes. I was to be one of the first human rights advocates allowed into what had long been a closed society. Senator Kennedy, with whom I worked on numerous human rights issues, was the key to why I was invited, not only to visit prisoners and courtrooms, but also to lecture on criminal law in several of China’s most important universities. Although I was invited to lecture exclusively on technical aspects of criminal law, in order to help China develop a modern penal code, I managed to smuggle some discussion of human rights into my lectures.

  During my visit to several prisons, I learned about a practice that seemed unique to China. When the sentence of death was imposed for certain types of crimes, the condemned prisoner was sent to a particular institution to await execution. After about a year, half of the condemned would actually be executed, while the other half would be spared. All the condemned were competing against one another in a zero-sum game, in which the stakes were life and death. The “winners” were selected not only on the basis of good behavior—needless to say, everyone in this high-stakes game was on his best behavior—but also on their commitment to Maoism and their “worthiness” to live.

  I’ve been to many prisons and on numerous death rows, but I’ve never experienced so grim a place as this “life-or-death row,” where every inmate saw every other inmate as a competitor in the quest to remain alive.

  The warden invited me to play basketball with the inmates. No one fouled me, trash-talked me, or in any way misbehaved, as the warden watched, notepad in hand. I was conscious that anything a player did or didn’t do could become part of his score of death—or life. I tried hard to make everyone look good in the eyes of the warden.

  When I returned to the United States, I tried to find out which inmates I’d met had been executed and which spared. I could learn nothing. I reported my findings to Senator Kennedy, and he made inquiries about the life-or-death-row prisons. He too hit a brick wall. The Chinese government has clamped down about its policies regarding the death penalty, especially in light of subsequent charges that they harvested organs from executed prisoners.

  When I returned to China on a lecture tour many years later, I asked to revisit the life-or-death-row prison. My hosts denied the existence of any such institution and assured me that the organs of executed prisoners were not being harvested.

  THE CHANGING CONSENSUS REGARDING HUMAN RIGHTS

  By the mid-1970s, the consensus regarding human rights was beginning to change—at least for many on the extreme left. Although the Soviet Union had long used the language of “human rights” (as well as the language of “civil rights”) as a club against Western democracies, few serious people gave this hypocritical ploy any credence when Soviet diplomats at the United Nations postured against the imperfections of the United States, even as their Communist masters locked up dissidents, made a mockery of justice,27 and kept entire nations in subjugation behind an iron curtain.

  But Soviet criticisms were beginning to be expropriated by the extreme left in the United States and Europe. Radical professors such as Professors Noam Chomsky of MIT and Richard Falk of Princeton claimed that the United States was the worst human rights violator in the world.28 (Falk later joined with conspiracy nuts who blamed 9/11 and the Boston Marathon bombing on the United States and Israel.) Extreme left lawyers such as William Kunstler refused to say anything critical of the human rights records of the Soviet Union, China, Cuba, or other “socialist” countries, while railing against the human rights violations of the United States and its allies.

  Abbie Hoffman on “Jew Lawyers”!

  I was part of the legal team in the Chicago Seven case, which grew out of demonstrations during the Democratic National Convention of 1968. My client Abbie Hoffman, who was one of the defendants, had allegedly made some crude remarks about how his “Jew lawyers” cared more about Israel than America. When I called him out on his comments, he responded with an angry handwrit
ten two-page letter that included the following:

  I never made a remark about my “Jewish Lawyers.” I might have spoken more positively about the PLO but I would never make an anti-Semitic juxtaposition such as you think you heard. If you read my current autobiography you will see I flaunt my “Jewishness” at every turn of the road.

  At the time Hoffman penned these words, the PLO was a terrorist organization that was hijacking airplanes, murdering civilians, and blowing up synagogues. Israel had not yet established any settlements in occupied areas.

  Father Daniel Berrigan, a Catholic priest who had become the darling of the extreme left as the result of his anti–Vietnam War activities, began to call both the United States and Israel “criminal” entities.29 Chomsky defended the ruthless Cambodian dictator Pol Pot against charges of genocide, insisting that Western media reports of millions of dead Cambodians were exaggerations falsely attributed to Communist regimes.30 The National Lawyers Guild dismissed accusations against Communist regimes as “red baiting.” They also became the legal arm of anti-Israel extremists, including terrorists. They did not support these clients on grounds of human rights principles, but rather because they agreed with their politics. By the late 1970s, I broke with the National Lawyers Guild, with which I had worked closely when it had been a neutral human rights organization. In a widely read article in The American Lawyer,31 I told the sad story of the transformation of the National Lawyers Guild from a genuine human rights organization into an advocate for some of the worst human wrongs on the planet.