Friday on the RealClearPolitics podcast, Carl Cannon spoke with Harvard Law professor emeritus Alan Dershowitz about his new book, “The Preventative State,” which discusses how to balance the increasing capacity of new technology to predict and prevent crimes with the preservation of civil liberty. “When I started teaching, there were more people in jails and prisons based on predictions of what they would do in the future than based on proof of what they had done in the past,” Dershowitz said. “We’ve always had prevention. We called it exile. If we thought somebody was dangerous but couldn’t really prove it, that person would be exiled-often to the United States, to places like Georgia or Australia.” “I talk about 1935, how 50 million lives could have been saved if Britain and France had engaged in a preventive war after Nazi Germany, in violation of the Versailles Treaty, started to build up its army. But they didn’t. I call that a false negative: failing to take an act that could have prevented many innocent people from being killed,” he said. “Then we’ve had false positives-we went into Iraq on the basis of a mistaken assumption that they had nuclear weapons.” “So the purpose of my book is to try to create a jurisprudence-to suggest a framework for how we analyze predictive decisions, because we’re making more of them. Especially with artificial intelligence, we’re going to be making lots and lots of predictions about how to stop people from doing terrible things. And we’re going to make mistakes,” he said. “What kind of mistakes do we prefer? A mistake that allows the bad thing to happen, but does not violate the human rights of the people who would otherwise be arrested? Or a mistake that results in innocent people being arrested, but perhaps prevents the bad act?” “We know when it comes to people who have committed past crimes, ‘better ten guilty go free than one be wrongly confined.’ That 10-to-1 ratio comes right out of the Bible, Abraham’s argument with God over the sinners of Sodom. But how many 9/11s would we be willing to tolerate? And how many people would we be willing to falsely arrest-not torture, just arrest, deport, confine-in order to prevent how many 9/11s?” “We’ve rejected torture in this country, in theory. But in practice, after 9/11, we sent people to black sites. We know that Khalid Sheikh Mohammed was waterboarded 80 times. That’s torture. So in theory we don’t do it, but in practice we do.” “A jurisprudence starts from the bottom up,” he explained. “You begin with cases. We have what’s called the case method-the common law method. In Europe, they use statutes. They start with statutes. We don’t. We start with the common law.” “Just like the Bible, the Book of Genesis starts with pragmatic, non-statutory law. Only in Exodus do we get the Ten Commandments.” “Now we’re seeing executive actions that circumvent both the judicial and legislative branches-and introduce a new lawmaking capacity by the president. But it’s all part of a jurisprudence.”
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