My current life work has been to try to find the jurisprudence that constrains what I call the “preventive state”. The state now is moving much more from reacting to violence – deterring people from committing violence by punishing those who’ve already done it – to a proactive, preemptive, preventive mode. Moving in. Stopping people from doing it. Preventive detention such as that which exists in Guantanamo and many other places around the world today. Preventive intelligence gathering. The use of cyberspace and picking up of conversations in space. The use of preventive interrogation, including torture. All of these things are part of one of the most important and yet unwritten about phenomena in the world. The preventive state. The state moving in early. Trying to anticipate. The state moving in against sexual predators. The state moving in against potential terrorists. And what I’ve been trying to do is construct a jurisprudence for that phenomenon.

My large project – which I’ve now been working on for probably . . . since 9/11 in the short term, but almost all of my professional life in the long term – is this notion of the preventive state; that the Constitution and our legal system was built on the premise that we wait until people commit crimes. Then we indict them and prosecute them, give them all the due process safeguards. Apply a standard of better 10 guilty, go free, and then one innocent be wrongly applied . . . be wrongly convicted. We’ve worked on that jurisprudence for thousands of years. The Bible is based on that jurisprudence. Christian legal systems and theology is based on that system . . . Islamic and Anglo-American and western in general. But we’re seeing a paradigm shift. We are now not able, it is thought, to wait until the crime is committed. Particularly if the crime is a nuclear attack, a terrorist attack with biological weapons, with chemical weapons. Sexual predators running rampant. Drunken drivers killing people on our streets. All these potential dangers and harms have moved us ever so subtly, but very, very, discernibly toward the preventive state, where the state is empowered to move in before you’ve done any of these terrible things, and to try to stop you from doing them in advance. An ounce of prevention is worth a pound of cure. A stitch in time saves nine. We all know those clichés, but how do you turn those clichés into jurisprudence? Is it better for 10 potential nuclear terrorists to go free, than for one potential suspect to be detained for six months while we check it out and see whether in fact he is a terrorist? The mantra of better 10 doesn’t really work.

Our legal system traditionally has been based on a theory of deterrents. You threaten punishment, and if somebody does a criminal act you punish them. You do something to them that they don’t want to have happen to them. You put them in prison. You execute them in extreme cases. The new paradigm of suicide terrorism makes our system of deterrents very hard to operate, especially when coupled with individual guilt and individual response. You could deter terrorism if you punish the families of the terrorists; but we can’t do that because we believe in individual guilt. So the combination of the use of deterrents and the requirement of individual guilt make it impossible for us to use the traditional legal methods and legal threats against suicide terrorists. That’s why we need to move in preemptively. That’s why we have to stop it from happening before it happens without trying to analogize humans to animals in any moral sense. When you have a person who will not fear death, and will not stop from doing anything because of the threat of punishment, you really have to treat that person the way you would treat a wild tiger or a wild lion. You don’t reason with a lion. You don’t try to deter a lion. You stop the lion by either building a cage between you and the lion, or by disabling the lion or killing the lion. And that method has been adapted to use against suicide terrorism. So that’s the problem. We haven’t figured out a solution to that because our usual approach to the rule of law doesn’t work. We need to create a new rule of law to govern the use of suicide terrorism. My optimism grows out of the fact that there are people in the world today who are trying to level the playing field and give everybody a chance to be successful, and give them a stake at peace in life. The greatest dangers we face today are people who have such miserable lives, and such false promises of great depths, that they prefer the illusion of paradise to the reality and poverty of the present time. And I think we have to shift that. We have to shift that by making life on earth much better; and by exposing the myth of the hereafter, one of the worst myths that human beings ever created in the service of religion . . . particularly rules that promise reward for murder in a world to come. Very hard to talk people out of that if they honestly believe in the depths of their heart that if they kill civilians, they will be rewarded by sexual fantasies, by food fantasies, by all the great things that they are deprived of in this world. It’s perverse, it’s bizarre, but it’s a reality in many people’s lives.

Recorded On: 6/12/07

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There are so many people that I’d love to interview living and dead. I’ll limit myself to a living one and one fairly close by. I would wanna ask Howard Gardner – who is a very innovative psychologist who has come up with concepts of multiple intelligences – how we can use the fact that people are smart in so many different ways to increase the productivity of people who aren’t smart in the traditional way that we think of smarts. Academically smart. Smart in school. I would combine it with the insights of another friend of mine, Michael Porter, and ask how the human mind, in its very different forms, can be used to create competitive advantages to populations in the world today which seem to be competitively disadvantaged. The idea of exploring the wide range of human intelligence that today we don’t explore. I think of it again biographically. I’m sure my great grandparents were smarter than I was; and yet, you know, they had no opportunity. Nobody was able to exploit their great brilliance and their intelligence. It took opportunity. It took education to be able to mold a generation. What do they say about the Jewish immigration experience? First generation, ladies’ garment workers union. Second generation, American Psychiatrist Association and the American Bar Association. Third generation, you know, President of Harvard, Yale ________ and many other places in America. It only takes a few generations, and there’s nothing unique about Jews. Any group can have that experience if they are given the right opportunities. The idea of Muslims and Arabs who used to have one of the greatest cultures in the world, and clearly have the innate ability to make enormous contributions to the world, to give them an opportunity to achieve a competitive and intellectual advantage by encouraging that kind of generational leap would do so much good in the world today.

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We’re getting democracy by sound bite, democracy by charm.  And the likelihood of great leaders emerging from this form of popular democracy is, I think, diminishing.  But we have a responsibility.  We can do something.  The people in the vast majority of the world with no input in the activities of their governments have a much harder, much harder role.  I think they have to focus on their own children, their own families . . . on focusing on their own lives, on improving their own lives, and are rejecting false promises of religious claims.

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This is a transitional age. We don’t know whether or not we’ll be able to survive these new threats of mega terrorism by people who don’t care whether they live or die. I suspect we will see some acts of massive terrorism. And the question is can we strike the appropriate balance? Can we do whatever we can do to stop terrorism – it won’t be perfect and there will be terrorism; don’t expect 100 percent – while at the same time not diminishing civil liberties? There will be some diminishing in civil liberties. There’ll be some terrorism. But how to strike that appropriate balance?

Recorded On: 6/12/07

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Right now, the world suffers from an incredible lack of creative leadership. I’m not talking only about the United States. I’m talking about Israel. I’m talking about the Palestinians. I’m talking about much of Western Europe. I’m talking about many religious leaders. This is not a time of great leadership. One does not see the Churchills and the Roosevelts and the great leaders emerging. I think one sees bureaucrats and charming people. It’s the price one pays for democracy gone amuck, with the media creating candidates and demanding of candidates that they be intelligenic. I don’t know how Winston Churchill would do in an election today. He didn’t do so well in his own election after the Second World War. We need great leadership. I think we’re seeing great leadership today in the business world. Innovations are just phenomenal. People like Bill Gates who are out there helping solve the world’s problems, and at the same time innovating. I wish we would see better leadership in the political world. I think today the most innovative people do not go into politics, and that’s a tragedy. I wish people with big ideas would go into politics.

Recorded On: 6/12/07

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I think there’s a sharp dichotomy between Republicans and Democrats on several issues. One is secularism versus fundamentalism. When you have many of the Republican candidates raising their hand when asked if they don’t believe in evolution and all the Democratic candidates saying they do believe in evolution. When you have many Republicans wanting to lower the wall of separation between church and state, and Democrats many pandering as well to religious constituencies, but at least saying the right words about separation of church and state. When you get the religious groups misapplying Jesus’ message and trying to recreate Jesus in their own image . . . If you look at the Republican conception of Jesus, he’s a gun toting, tax-cutting person who hates the poor. I mean nothing can be further from the truth. Jesus was a man of peace who loved the poor and didn’t have such nice views about the rich. Something about the camel going through a needle. And it’s bizarre. Now the religious right is trying to recreate Thomas Jefferson, and John Adams, and James Madison, and George Washington in their own image by pretending that these were deeply religious Christians who wanted to create a Christian society in America. So I think on the issues of secularism versus religion, on the issues of environmentalism, there are clear differences between Democrats and Republicans on the issues of minimum wage and trying to help the poor; on the issues of immigration . . . perhaps not as sharply; but there are big differences. I think none of the candidates today wants to discuss the big, big, big issues. They’re not good political fodder. They don’t make good bumper stickers. And it’s hard to campaign on anything other than slogans today.

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We probably went through a longer period of time as homo sapiens without law than with law. Law probably is a development of four or five thousand years, maybe earlier. We only have written records that go back to ___________, the earliest versions of the Bible. Law is a very important way of controlling rage, passion, revenge, jealously, and law must reflect all of these emotions as well. The law historically develops from experience. I wrote a book called “The Genesis of Justice” which dealt with the origins of biblical law. And the point I made is the book of Genesis doesn’t have law. There’s no law in Genesis. The law begins in Exodus . . . Mount Sinai, the rules of law. And Genesis shows us how a world operates without law, and it’s a terrible world in which people do awful things to each other. The god character in the Book Genesis has to destroy the whole world by the flood, and man has to try and recreate it from scratch. We see human beings operating on the basis of instinct. Some good, some bad. The dysfunctional families of the Bible killing their enemies, sometime even preemptively. And then we move toward the development of some kind of a common law, some understanding toward the end of the book of Genesis of what’s right and what’s wrong. And then eventually to codification in the book of Exodus with the Ten Commandments, and then the rules that follow in the Ten Commandments. So law is essential to civilized society. Every tyrant understands that. What tyrants want are laws that they can impose on others but are not restrictive of themselves. We in western culture say no one’s above the law, and everybody must be subject to the rule of law. It’s also a part of democratic accountability. The law has to be published, and visible, and accessible to all, and subject to challenge and change. And that’s what the rule of law is. And probably there’s no more important contribution to civilization and progress than the rule of law.

Recorded On: 6/12/07

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I think fundamentalism born of poverty is one of the great challenges that the United States faces. Look. The United States has its own problem of fundamentalism. We are the most religious western nation in the world. More Americans believe that there are angels hovering above them than believe in evolution. The difference is our fundamentalists generally are happy with their lives. And our fundamentalism also eschews and makes a sin out of suicide. So we don’t have a lot of suicide bombers in the United States growing out of fundamentalist movements. But if you combine a life of misery and poverty – often inflicted by their religious leaders themselves with a promise of paradise and a claim that suicide is in the interest of religion – then you’ve gotten a combination that awfully hard for western society to combat.

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One clearly sees a new paradigm of asymmetrical warfare going on. Terrorists hide behind civilians; merge with civilians; operate out of civilian population centers and use those areas to attack the civilians of the democracies that are opposed to . . . Hamaas fires rockets into downtown and ________. Or Hezbollah fires rockets into ________. Or Iraqi terrorists fire rockets at American soldiers or in Afghanistan. It’s going to spread all over the world, and the democracy has two choices. Either not to respond or to respond. And if they respond they will inevitably kill civilians on the other side. That’s part of the goal of the terrorists. They want the democracies to kill civilians. Even if it’s their own civilians because that creates a terrible world impression against them, which is part of the reason why Israel has been subject to so much criticism as the United States has been. We need a new jurisprudence to deal with that phenomenon. The old jurisprudence doesn’t work. The old jurisprudence simply said you’re either a civilian or a combatant. If you’re wearing a funny hat with an insignia and a uniform you’re a combatant. If not, you’re a civilian. That dichotomy doesn’t work with terrorism. So I’ve had to construct what I call a “Continuum of Civilianality”, which ranks people along a line . . . obviously babies and old people, and others who have no influence on the aspect of terrorism. They’re totally civilians. People who allow their houses to be used to store weapons . . . people who allow themselves to be used as shields are closer on a Continuum of Civilianality to combatants. It has to be made a war crime to use civilians as shields, and to fire rockets from behind civilians. And there has to be a rule of proportionality that allows democracy to respond even if inevitably is gonna risk the lives of some civilians to save the lives of other civilians. We right now don’t have a jurisprudence for that. We don’t have a jurisprudence for preemptive attack against a nuclear power threatening to attack others. Not eminently, but in a year or so. I’m not suggesting that it should be permitted. I’m suggesting that we need a jurisprudence. Article 15 and 51 of the UN Charter doesn’t deal with that. It says only that a country can respond to an armed attack with an armed attack. But if you’re waiting to have a chemical, biological, a nuclear weapon directed at your civilians, nobody reasonably can be expected to wait. And so we need a jurisprudence to fill that black hole. And my life work is to try to find, construct, create at least the beginning of a jurisprudence so that nothing is outside of the rule of law. That’s my goal. Nothing under the radar screen. Nothing left to discretion. Everything we do subject to the rule of law. That probably created the greatest controversy in my academic life.

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I looked around and I said, “We’re torturing people.” We use torture. I think that’s wrong. I’m personally opposed to torture, but we’re using it. So I said, “If we’re gonna use it, we need a jurisprudence of torture.” “Oh my god! A jurisprudence of torture? How can you say that? You’re a monster. You’re Torquemada.” No. I’m trying to stop torture. And the way to stop torture is to ________ it; to say, “Alright. If you think you have to use moderate forms of physical pressure in the extraordinary case of a ticking bomb terrorist who knows where a nuclear bomb is in the city of New York, alright. Create an exception for that. But _________ it. Limit it. Indicate.” And people say, “No, no, no. We don’t want that.” We’d rather have the President, or the Vice President, or some people on the ground do it on their own. Just don’t ask, don’t tell. A wink and a nod. That’s not my way. My way is always to have the rule of law govern everything that we do, whether it be torture; whether it be execution; whether it be race-based affirmative action; whether it be censorship on the Internet. Things that I oppose, I still wanna have a jurisprudence. I oppose the death penalty, but can you image having a death penalty without a jurisprudence to constrain it? Or take the problem of an airplane flying toward a building with lots of people in it. And we’re pretty sure the airplane has been high jacked but we’re not positive. Somebody has to make a decision to shoot down that airplane and kill the 300 people on it who might not be crashing it, who might be crashing it. We can’t just leave that to the person on the ground. We have to have an advanced jurisprudence to figure out when we can shoot that airplane down and when we can’t. Everything needs a jurisprudence. That’s my mantra. And if there’s ever been a contribution that I’ve made, it’s the contribution of creating a rule of law, creating a jurisprudence for everything we do, no exceptions.

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Can we hold people? And for how long can we hold them? And under what circumstances can we hold them because we strongly suspect that they are planning to do something terrible? If we can hold them, what can we do to them? Can we punish them? Can we coerce them? Can we make them provide information – real-time information – to help us prevent these terrible acts? If so by what means? What other means can we use to intrude and interfere with plans to do terrible things? Can we have psychological testing of people who are sexual predators? Can we create profiles, whether they be based on ethnicity, race and religion, or a combination of factors, which include but aren’t limited to these kind of crude predictors? How good are we at predicting? How do we test the accuracy of our predictions? These cases are coming up every day. As we sit and do this interview, just yesterday the United State Court of Appeals ruled that residences of the United States could not be held indefinitely based on suspension and prediction that he might be an al-Qaida operative. The courts are gonna have to come to grips with these issues. And they don’t have a clue as to how to begin, because there is no on-the-ground jurisprudence that can deal with this developing phenomenon.

Recorded On: 6/12/07

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I’m not part of any school. And I don’t like the current conversation that’s going on in academia. It’s voguish. It’s often just part of today’s convention. And I like to start with first principles and see where they take me based on my own personal observations.

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My speaking up on behalf of what I think is a kind of worldwide bigotry against the Jewish state; not that it shouldn’t be subjected to criticism, but by subjecting it to a double standard. For example, the British boycott which lets Iran, and Cuba, and the Sudan, and China off the hook and only focuses on Israel, where Arab academics have greater academic freedom in Israel than they do in any Muslim or Arab state. So I’ve been spending a lot of time, again, trying to subject this criticism of Israel to a single standard, which is part of the whole jurisprudential framework. Everybody should have a single standard.

Transcript:

We probably went through a longer period of time as homo sapiens without law than with law. Law probably is a development of four or five thousand years, maybe earlier. We only have written records that go back to ___________, the earliest versions of the Bible. Law is a very important way of controlling rage, passion, revenge, jealously, and law must reflect all of these emotions as well. The law historically develops from experience. I wrote a book called “The Genesis of Justice” which dealt with the origins of biblical law. And the point I made is the book of Genesis doesn’t have law. There’s no law in Genesis. The law begins in Exodus . . . Mount Sinai, the rules of law. And Genesis shows us how a world operates without law, and it’s a terrible world in which people do awful things to each other. The god character in the Book Genesis has to destroy the whole world by the flood, and man has to try and recreate it from scratch. We see human beings operating on the basis of instinct. Some good, some bad. The dysfunctional families of the Bible killing their enemies, sometime even preemptively. And then we move toward the development of some kind of a common law, some understanding toward the end of the book of Genesis of what’s right and what’s wrong. And then eventually to codification in the book of Exodus with the Ten Commandments, and then the rules that follow in the Ten Commandments. So law is essential to civilized society. Every tyrant understands that. What tyrants want are laws that they can impose on others but are not restrictive of themselves. We in western culture say no one’s above the law, and everybody must be subject to the rule of law. It’s also a part of democratic accountability. The law has to be published, and visible, and accessible to all, and subject to challenge and change. And that’s what the rule of law is. And probably there’s no more important contribution to civilization and progress than the rule of law.

I grew up in a frightened community. I was born on the eve of the Holocaust in 1938. My mother . . . when my brother was born my mother kept saying she didn’t know whether she would have him in some bunker or in the basement somewhere. We were all terrified of war, and we were all terrified of what was happening to the Jewish community. It was a powerless community at the time. Hard to imagine today, but no influence in Congress. No influence really in any aspect of politics. It was a community that really felt that they were guests in somebody else’s country. They were second-class citizens. They were tolerated at best and they’d better behave. And it was a community of people who were very patriotic, quite conservative in their outlook toward many things. People sometimes stereotype the Jewish community as being a very radical community, and there aren’t many secular Jews who were radical during that period of time . . . some Communist, some Socialist; but in the Orthodox community that I grew up in, quite conservative, quite patriotic, and frightened is the word I think I would use more than any other. The message I constantly got from my parents and grandparents was, “Shush. Still. Be quiet. Be quiet. Don’t rock the boat. Don’t do anything. Don’t make your hosts – the real Americans – mad at you. Whatever you do, do quietly.” Obviously it didn’t take with me and I reacted, I think, to that.

Recorded On: 6/12/07

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We should be imposing a marshal plan on the world. We should be trying to give poor people the means to better their lives through better healthcare, through better economic opportunities. What we need to do is create a situation where there’s less disparity between the very, very wealthy and we’re getting wealthier, and wealthier, and wealthier, and the very poor. That disparity is a prescription for disaster. And when you throw into the mix the growth of fundamentalist religion and the appeal of fundamentalist religion, particularly to poor and desperate people who don’t enjoy their lives, they have now and see no future for their children. And when they see their reward for living this terrible life – some heavenly reward which they’re told could be achieved through violence and through hatred – the mix is a terrible one. And we have to confront that. We can confront it economically. We can confront it politically. The basic point is to give more people more of a stake in the success of our global economy and healthcare. And if we can do that, probably we can avoid a catastrophe. Several catastrophes we face. Environmental catastrophe, terrorist catastrophes. Catastrophe in which democracy that is voting brings about repression. Parts of the world face the Vimar German problem that, through democracy, they may bring about tyranny. Algeria, potentially Egypt, potentially many other parts of the world, where if they had to vote today, they might vote for tyranny rather than for what we call not only structural democracy but functional democracy.

I think it depends on whether you’re talking about individuals in a democracy or individuals outside of a democracy. Individuals in a democracy can do much more to encourage a creative leadership, bold leadership, great leadership, with a leadership that is prepared to take risks when the risks are outweighed by the benefits to be incurred. We don’t have democracies that do that in most of the western world today, and it’s getting worse. We’re getting democracy by sound bite, democracy by charm. And the likelihood of great leaders emerging from this form of popular democracy is, I think, diminishing. But we have a responsibility. We can do something. The people in the vast majority of the world with no input in the activities of their governments have a much harder, much harder role. I think they have to focus on their own children, their own families . . . on focusing on their own lives, on improving their own lives, and are rejecting false promises of religious claims.

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You’ve made me think deeply about that question.  It’s a very, very hard one to ask what people should be thinking about.  I think people should be asked to take a moratorium for a brief period of time in their lives on reading the conventional literature that’s available to them; and to observe the world in as perceptive a way, and ask themselves, “What are the questions we’re not asking?  What are the issues we’re not addressing?  Are there things that we should be thinking about which will have an impact 50 or 60 years from now?”  I start my class in Criminal Law every year by asking that kind of question.  I say, “Look.  We’re now in the first decade of the 21st Century.  You’re 21, 22 years old.  I’m getting close to 70.  I want to think about what you will be thinking about when you’re my age now.  So I want you to jump ahead 50 years.  And I want you to ask yourselves what are gonna be the major issues that elite, innovative, brilliant lawyers like you, the students, are going to be confronting 50 years from now.  I don’t wanna teach you how to practice law in 2009, 2010, 2011.  I wanna teach you how to be leaders of the law, and leaders of our country in 2050 and 2060.”  I think those are the kinds of questions.  I think we should be thinking like science fiction writers.  And I like the analogy of the legal fiction writers – people who can think ahead, people who can stretch the bounds of the imagination.  We can’t do it very well.  If I was asked that question when I was in law school between 1959 and 1962,  I never could have imagined the cyber world in which we live.  I wouldn’t have imagined the threats of terrorism that we confront, the opportunities that we have, the environmental disasters that are surrounding us.  So it may be an impossible question to ask people to think 50 years ahead, but I think it’s a useful one.

Recorded On: 6/12/07

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I’m moderately optimistic because I think we have the ability to confront these issues.  Right now, the world suffers from an incredible lack of creative leadership.  I’m not talking only about the United States.  I’m talking about Israel.  I’m talking about the Palestinians.  I’m talking about much of Western Europe.  I’m talking about many religious leaders.  This is not a time of great leadership. One does not see the Churchills and the Roosevelts and the great leaders emerging.  I think one sees bureaucrats and charming people.  It’s the price one pays for democracy gone amuck, with the media creating candidates and demanding of candidates that they be intelligenic.  I don’t know how Winston Churchill would do in an election today. He didn’t do so well in his own election after the Second World War.  We need great leadership.  I think we’re seeing great leadership today in the business world.  Innovations are just phenomenal.  People like Bill Gates who are out there helping solve the world’s problems, and at the same time innovating.  I wish we would see better leadership in the political world.  I think today the most innovative people do not go into politics, and that’s a tragedy.  I wish people with big ideas would go into politics.

Transcript:

Our legal system traditionally has been based on a theory of deterrents. You threaten punishment, and if somebody does a criminal act you punish them. You do something to them that they don’t want to have happen to them. You put them in prison. You execute them in extreme cases. The new paradigm of suicide terrorism makes our system of deterrents very hard to operate, especially when coupled with individual guilt and individual response. You could deter terrorism if you punish the families of the terrorists; but we can’t do that because we believe in individual guilt. So the combination of the use of deterrents and the requirement of individual guilt make it impossible for us to use the traditional legal methods and legal threats against suicide terrorists. That’s why we need to move in preemptively. That’s why we have to stop it from happening before it happens without trying to analogize humans to animals in any moral sense. When you have a person who will not fear death, and will not stop from doing anything because of the threat of punishment, you really have to treat that person the way you would treat a wild tiger or a wild lion. You don’t reason with a lion. You don’t try to deter a lion. You stop the lion by either building a cage between you and the lion, or by disabling the lion or killing the lion. And that method has been adapted to use against suicide terrorism. So that’s the problem. We haven’t figured out a solution to that because our usual approach to the rule of law doesn’t work. We need to create a new rule of law to govern the use of suicide terrorism. My optimism grows out of the fact that there are people in the world today who are trying to level the playing field and give everybody a chance to be successful, and give them a stake at peace in life. The greatest dangers we face today are people who have such miserable lives, and such false promises of great depths, that they prefer the illusion of paradise to the reality and poverty of the present time. And I think we have to shift that. We have to shift that by making life on earth much better; and by exposing the myth of the hereafter, one of the worst myths that human beings ever created in the service of religion . . . particularly rules that promise reward for murder in a world to come. Very hard to talk people out of that if they honestly believe in the depths of their heart that if they kill civilians, they will be rewarded by sexual fantasies, by food fantasies, by all the great things that they are deprived of in this world. It’s perverse, it’s bizarre, but it’s a reality in many people’s lives.

Transcript:

I think if I had to summarize my worldview, I would say there are a lot of terrible injustices out there. Some of them are currently and voguishly the subject of all kinds of arguments and protests. But there are many out there that people just aren’t aware of. And it’s my job to try to find injustices or areas of life and power – black holes which are not subject to the rule of law, and the rule of morality, and the rule of philosophy – and try to subject them to legal constraints. Let me give you a contemporary example which is very, very, controversial. So simply observing what’s going on in the Middle East, in Israel, in Palestine, in Iraq and Afghanistan, one clearly sees a new paradigm of asymmetrical warfare going on. Terrorists hide behind civilians; merge with civilians; operate out of civilian population centers and use those areas to attack the civilians of the democracies that are opposed to . . . Hamaas fires rockets into downtown and ________. Or Hezbollah fires rockets into ________. Or Iraqi terrorists fire rockets at American soldiers or in Afghanistan. It’s going to spread all over the world, and the democracy has two choices. Either not to respond or to respond. And if they respond they will inevitably kill civilians on the other side. That’s part of the goal of the terrorists. They want the democracies to kill civilians. Even if it’s their own civilians because that creates a terrible world impression against them, which is part of the reason why Israel has been subject to so much criticism as the United States has been. We need a new jurisprudence to deal with that phenomenon. The old jurisprudence doesn’t work. The old jurisprudence simply said you’re either a civilian or a combatant. If you’re wearing a funny hat with an insignia and a uniform you’re a combatant. If not, you’re a civilian. That dichotomy doesn’t work with terrorism. So I’ve had to construct what I call a “Continuum of Civilianality”, which ranks people along a line . . . obviously babies and old people, and others who have no influence on the aspect of terrorism. They’re totally civilians. People who allow their houses to be used to store weapons . . . people who allow themselves to be used as shields are closer on a Continuum of Civilianality to combatants. It has to be made a war crime to use civilians as shields, and to fire rockets from behind civilians. And there has to be a rule of proportionality that allows democracy to respond even if inevitably is gonna risk the lives of some civilians to save the lives of other civilians. We right now don’t have a jurisprudence for that. We don’t have a jurisprudence for preemptive attack against a nuclear power threatening to attack others. Not eminently, but in a year or so. I’m not suggesting that it should be permitted. I’m suggesting that we need a jurisprudence. Article 15 and 51 of the UN Charter doesn’t deal with that. It says only that a country can respond to an armed attack with an armed attack. But if you’re waiting to have a chemical, biological, a nuclear weapon directed at your civilians, nobody reasonably can be expected to wait. And so we need a jurisprudence to fill that black hole. And my life work is to try to find, construct, create at least the beginning of a jurisprudence so that nothing is outside of the rule of law. That’s my goal. Nothing under the radar screen. Nothing left to discretion. Everything we do subject to the rule of law. That probably created the greatest controversy in my academic life. I looked around and I said, “We’re torturing people.” We use torture. I think that’s wrong. I’m personally opposed to torture, but we’re using it. So I said, “If we’re gonna use it, we need a jurisprudence of torture.”

Recorded On: 6/12/07