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. In an article several years later, I urged the Nobel committee to use Elie Wiesel as its model for selecting future Nobel Prize winners. This is part of what I wrote: Many of the Nobel Peace Prize winners were recognized by the Nobel Committee for their work on behalf of their own people: Most recent winners - Rigoberto Menchu of Guatemala, Aung San Suu Kyi of Burma, the Dalai Lama of Tibet, Bishop Desmond Tutu of South Africa, Lech Walesa of Poland - were honored primarily for helping their own people, and they have continued to try to help their people. Elie Wiesel's work is far more universal. For example, those who have suffered most in the former Yugoslavia have been the Croats and the Muslims. It was they who Elie Wiesel risked his life to protect. Yet during the Holocaust, which took the lives of 6 million of Wiesel's people, the Croats were among the most barbarous hands-on perpetrators of genocide against Jewish babies, women and men. The Islamic world has been in conflict with Elie Wiesel's people over Israel, and many innocent Jews have been murdered by Islamic co-religionists of Muslims who have been terrorized in Sarajevo. Yet, 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. To be sure, Elie Wiesel speaks up on behalf of his people as well, with a voice of unparalleled eloquence. … A great Jewish sage once wrote, "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?" Elie Wiesel lives by that tripartite philosophy. He is the voice of the Jewish people - their international moral spokesman. But he speaks not for Jews alone; instead, he can be counted to combat hatred and bigotry regardless of who the victims may be. And for Elie Wiesel, tomorrow is never an excuse for not acting today. Over the years, we 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. I have sought his advice on many occasions, and it has always been wise and useful. 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 1930's and 1940's, the history of European Jewry might have been different.” Although I have always believed that these words were highly 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 of me. I recall his words every time I think of slowing down or doing less to protect the victims of human rights abuses. In 19__, 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.” 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. Elie Wiesel is truly one of the great men of the 21st 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. 1 Justice John Paul Stevens 2 [quote] 3 Quote Steve Pinker 4 FN on Mark Hauser “Moral Minds.” Drew Weston, George Lakoff. 5 Kafka once quipped that “the meaning of life is that we die,” and when God told Adam and Eve that if they eat from the tree of knowledge, they will die, he meant they will obtain the knowledge of mortality—which elevated humans above other species. 6 This is not to deny the likely influence genetics and biology may have on a predisposition toward homosexuality or other orientations. Nor is it to deny that biological predisposition may influence ideology through the prism of experience. See [cite] [expand] 7 Perhaps, of course, had my forbearers remained in Poland, my father might not have met my mother (although their families lived in neighboring shtetls). Accident, timing and luck determine virtually everything relating to birth. 8 An old Yiddish expression says: “Man plans, God laughs.” 9 My dear friend and teaching colleague Steven Pinker believes that parental influence may be overvalued [CITE]. I’m certain that it varies among individuals and families. 10 Now there really are “permanent records.” They’re called Facebook, Twitter and the Internet. 11 Finding Jefferson 12 For a fuller account of this episode, see The Best Defense at ff __ 13 The classic Jewish joke reflecting this xenophelia is about Moishe who says to his wife, “It’s too hard to be a Jew. I’m converting to Christianity.” He goes to church, converts and goes home to sleep. Next morning his wife wakes up and sees Moishe wearing his Talit (Jewish prayer shawl) while davening (praying in Hebrew). “What are you doing Moishe,” she asks, “You’re a Christian.” Moishe replies, “I forgot! Goyisher Kup.” 14 Salesmen at the nostalgia shops tell me that men in their 40's and 50's experience the need to ''collect'' their adolescence more than women do. ''When I see a guy with a goofy looking grin dragging a couple of teen-age kids through my door on a weekend, I know my summer vacation will be paid for,'' one shop owner told me. ''But if he's got his wife with him, he'll probably buy just one sensible memento for his office.'' 15 See Reasonable Doubts, Best Defense 16 Miller v. US (June 14, 1963) 17 Centuries early, the Jewish scholar Maimonides had provided a more nuanced psychological insight. [quote] 18 The new instructions were to follow these principles: “When evidence of flight has been introduced into a case, in my opinion the trial court should, if requested, explain to the jury, in appropriate language, that flight does not necessarily reflect feelings of guilt, and that feelings of guilt, which are present in many innocent people, do not necessarily reflect actual guilt. This explanation may help the jury to understand and follow the instruction which should then be given, that they are not to presume guilt from flight; that they may, but need not, consider flight as one circumstance tending to show feelings of guilt; and that they may, but need not, consider feelings of guilt as evidence tending to show actual guilt.” 19 When he was finally appointed to the Supreme Court, he invited me to come to his swearing in at the White House, after which there was a little party, where wonderful White House cookies were being served. My daughter was then in elementary school and I thought it would be nice to bring to her class a bunch of White House cookies for their next snack period. I took a paper napkin with White House markings and I started to put as many cookies as I could in it and then into my pocket. Suddenly there was a tap on my shoulder, “Stealing cookies from the White House, huh?” It was Hillary. She told me I didn’t have to do that. She would be happy to give me a large box to take home. The kids in my daughter’s class loved the cookies and the story. But the truth is they weren’t quite as good as my mother’s. 20 Harvard Law Record, October 22, 1964, p. 3 21 New York Times Magazine, September 11, 1966, Victor S. Nevasky, The Yales vs. The Harvards 22 See Alan Dershowitz, Finding Jefferson (Hoboken, NJ: John Wiley & Sons, 2008). 23 See Alan Dershowitz, “Preventive Disbarment: The Numbers Are Against It,” American Bar Association Journal 58 (Aug. 1972): 815. 24 As I wrote in Why Terrorism Works: In my debates with two prominent civil libertarians, Floyd Abrams and Harvey Silverglate, both have acknowledged that they would want nonlethal torture to be used if it could prevent thousands of deaths, but they did not want torture to be officially recognized by our legal system. As Abrams put it: “In a democracy sometimes it is necessary to do things off the books and below the radar screen.” Alan Dershowitz, Why Terrorism Works (New Haven: Yale University Press, 2002): 151. See also Richard Posner, Quoted pp _____ infra. 25 Congress originally voted to submit 12 Amendments to be ratified by the States. The First and Second—which dealt with the size of Congress and the compensation of Senators and Congressmen—were not ratified and the Third Amendment became the First. 26 The rarely invoked 10th Amendment makes this clear: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 27 Interestingly, it is the National Congress, rather than the states, that should have the power to protect the national security interests of our nation, but many of the exceptions to an absolute right of speech, that were recognized at the time the First Amendment was ratified, were matters of state concern, such as defamation laws, obscenity laws and blasphemy laws. 28 An additional, quite controversial, mechanism involves the financing of political campaigns. See Citizen’s United Case [cite]. I have not yet litigated cases in this area. 29 The core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible to analogize one set of words to another—as he could not have done if he had begun with the self-evidence proposition that setting off an alarm bell is not free speech. 30 Outside court the analogies become even more absurdly stretched. A spokesperson for the New Jersey Sports and Exposition Authority complained that newspaper reports to the effect that a large number of football players had contracted cancer after playing in the Meadowlands— a stadium atop a landfill — were the “journalistic equivalent of shouting fire in a crowded theater.” An insect researcher acknowledged that his prediction that a certain amusement park might become roach infested “may be tantamount to shouting fire in a crowded theater.” The philosopher Sidney Hook, in a letter to the New York Times bemoaning a Supreme Court decision that required a plaintiff in a defamation action to prove that the offending statement was actually false, argued that the First Amendment does not give the press carte blanche to accuse innocent persons “any more than the First Amendment protects the right of someone falsely to shout fire in a crowded theater.” 31 At common law, truth was not a defense to defamation because a “truthful defamation was deemed more harmful than a false one.” See Alan Dershowitz, Finding Jefferson (Wiley 2008 pages 104-05). 32 The exposure of such material raises separate issues but the Supreme Court has ruled that the potential exposure of children does not by itself justify censoring adults. See _______. 33 See Dershowitz, The Best Defense, Chapter 5. In any event, the issue of pornography illustrates at least two distinct types of harm that have the alleged basis for prohibiting expression. A related harm grows out of the expectation that certain people who are offended by certain kind of speech will react violently to the offending person. Thus, if a white person confronts a black person and calls him by the “N word,” the black person may well respond by striking the offender. Similarly if a Jewish, Muslim, Italian, Irish, Polish or gay person is confronted with a word or name deeply offensive to him or his group, he might respond by striking back. Hence, such provocatively offensive expressions have been called “fighting words” and have been denied First Amendment protection by some courts over the years. This concept has assumed center stage recently, as some Muslim groups, individuals and even nations have threatened violence in response to the publication of “offensive” books, cartoons and other media critiques of Islam and its prophet. The stakes have also risen. Instead of merely fighting words, some radical Muslims regard insults to the prophet as killing and bombing words. 34 The issue is somewhat complicated, because it may be true that certain kinds of violent pornography (as well as violent non-pornography) may be contributing factors in certain people’s decision or propensity to rape, just as alcohol or other drugs may be contributing factors. What is undeniably clear is that only a miniscule fraction of men who view pornography go on to rape or commit violence, and that a great many rapists do not view pornography. See Alan Dershowitz, Why Pornography? in Shouting Fire (Little Brown, 2002) pp. 1630-1675. 35 Griswold v. Conn 36 See The Best Defense pages 174-78. 37 I was also involved—either as a defense lawyer, consultant or commentator—in the defense of several magazines and books. See e.g. Dershowitz, Shouting Fire, pages _____. 38 During a preview of a film off Broadway about the Deep Throat controversy I saw some soft core excerpts. They were God awful. 39 I relate the other legal theories on which we might have won the case in The Best Defense pages 155-174. 40 Even if there were evidence that it harmed the viewer, that would not be a good enough reason for banning it, so long as there is no evidence it harms others. See Dershowitz, Shouting Fire, Why Pornography? pages ____ 41 See Dershowitz, Stretch Points of Liberty 42 Washington Post, February 15, 1989. Page A.25 43 See Gabriel Shoenfeld, Necessary Secrets (_____ 2010) 44 See Dershowitz [column] 45 The checks don’t always work, as evidenced by the Murdock scandals. 46 See Finding Jefferson at pp. __ __. 47 I can only disclose material that is in the public record that he has given me permission to disclose. 48 The Supreme Court has recognized, in the context of the First Amendment, that a law purporting to regulate speech or press, in order to survive the “strict scrutiny” standard of review required by the First Amendment, must not be overinclusive or underinclusive. See Brown v. Entertainment Merchants Assn.: “Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint…And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assistant parents” that restriction of First Amendment rights requires…California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993) As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.” 49 http://www.baitcal.com/UCIMuslimStudentUnion.html 50 For example, Faurisson relies on an entry, dated October 18, 1942, from the diary of SS doctor Johann-Paul Kremer written during the three months he spent at Auschwitz in 1942. An eminent scholar checked Faurisson’s use of the entry, and demonstrated that Faurisson’s “research” was fraudulent. The diary entry read: “This Sunday morning in cold and humid weather I was present at the 11th special action (Dutch). Atrocious scenes with three women who begged us to let them live.” Faurisson concludes that this passage proves (I) that a “special action” was nothing more than the sorting out by doctors of the sick from the healthy during a typhus epidemic; (2) that the “atrocious scenes” were “executions of persons who had been condemned to death, executions for which the doctor was obliged to be present”; (3) that “among the condemned were three women who had come in a convoy since the women were shot and not gassed (emphasis added). Faurisson, who said he had researched the trial, knew that his own source, Dr. Kremer, had testified that the gas chambers did exist. Yet he deliberately omitted that crucial item from his book, while including the fact that the women were shot. Faurisson also knew that the three women were “in good health.” Yet he led his readers to believe that Dr. Kremer had said they were selected on medical grounds during an epidemic. Finally, Faurisson states that those who were shot had been “condemned to death.” Yet he knew they were shot by the SS for refusing to enter the gas chambers. A French scholar named George Wellers analyzed this diary entry and the surrounding documentation for Le Monde. He did actual historical research, checking the Auschwitz record for October 18, 1942. His research disclosed that 1,710 Dutch Jews arrived that day. Of these, 1,594 were sent immediately to the gas chambers. The remaining 116 people, all women, were brought into the camp; the three women who were the subject of the Kremer diary must have been among them. The three women were, in fact, shot—as Faurisson concludes. But that fact appears nowhere in Kremer’s diary. How then did Faurisson learn it? Professor Wellers was able to find the answer with some simple research. He checked Dr. Kremer’s testimony at a Polish war crimes trial. This is what Kremer said at the trial: “Three Dutch women did not want to go into the gas chamber and begged to have their lives spared. They were young women, in good health, but in spite of that their prayer was not granted and the SS who were participating in the action shot them on the spot.” (emphasis added). That is not “extensive historical research.” It is not research at all. It is the fraudulent manufacturing of false antihistory. It is the kind of deception for which professors are rightly fired: not because their views are controversial, but because they are violating the most basic canons of historical scholarship. It is typical of Faurisson in particular, and of Holocaust denial “research” in general. Yet Chomsky was prepared to lend his academic legitimacy to Faurisson’s “extensive historical research.” 51 Kevin P. Convey, Actress Redgrave defends her views, but lawyer Dershowitz steals the show. Boston Herald. Dershowitz: Redgrave Views on Censorship Hypocritical. 52 http://www.haaretz.com/full-text-of-alan-dershowitz-s-tel-aviv-speech-1.289841 53 Mr. Finkelstein is supported by hard-leftists like Noam Chomsky and Alexander Cockburn. They regard him as a scholar in a class with Ward Churchill. He’s the Colorado professor who called the 9/11 victims “little Eichmanns” comparing Finkelstein to Churchill is a characterization with which I would not quarrel. Mr. Finkelstein does not do “scholarship” in any meaningful sense. Although his writings center on Israel (which he compares to Nazi Germany) and the Holocaust, he has never visited Israel and cannot read or speak German — precluding the possibility of original scholarship. Prof. Bartov characterized his work as an irrational Jewish “conspiracy theory.” The conspirators include Steven Spielberg, NBC and Leon Uris. The film “Schindler’s List,” Mr. Finkelstein argues, was designed to divert attention from our Mideast policy. “Give me a better reason! . . . Who profits? Basically, there are two beneficiaries from the dogmas [of Schindler's List]: American Jews and American administration.” NBC, he says, broadcast “Holocaust” to strengthen Israel’s position: “In 1978, NBC produced the series Holocaust. Do you believe, it was a coincidence, 1978? Just at this time, when peace negotiations between Israel and Egypt took place in Camp David?” He argues that Leon Uris, the author of “Exodus,” named his character “Ari” in order to promote Israel’s “Nazi” ideology: “[B]ecause Ari is the diminutive for Aryan. It is the whole admiration for this blond haired, blue eyed type.” (Ari is a traditional Hebrew name dating back to the Bible.) He has blamed Sept. 11 on the U.S., claiming that we “deserve the problem on our hands because some things Bin Laden says are true.”) He says that most alleged Holocaust survivors — including Elie Wiesel — have fabricated their past. Like other anti-Semites, Mr. Finkelstein generalizes about “the Jews”; for example: “Just as Israelis . . . courageously put unruly Palestinians in their place, so American Jews courageously put unruly Blacks in their place.” He says “the main fomenters of anti-Semitism “are ‘American Jewish elites’ who need to be stopped.” Normally, no one would take such claims seriously, but he boasts that he “can get away with things which nobody else can” because his parents were Holocaust survivors. And then, of course, there is me. In a recent article, “Should Alan Dershowitz Target Himself for Assassination?” Mr. Finkelstein commissioned a cartoon by a man who placed second in the Iranian Holocaust-denial cartoon contest. The Hustler-type cartoon portrayed me as masturbating in joy while viewing images of dead Lebanese on a TV set labeled “Israel peep show,” with a Star of David prominently featured. Mr. Finkelstein has accused me of not having written “The Case For Israel” but when I sent his publisher my handwritten draft, they made him remove that claim. He has accused virtually every pro-Israel writer, including me, of “plagiarism.” I asked Harvard to conduct an investigation of this absurd charge. Harvard rejected it, yet he persists. 54 See Finding Jefferson 55 Justice John Paul Stevens 56 Tison brothers, Miller, Borokova, Sybers, Murphy, Claus Von Bulow, O.J. Simpson, Seigel, Connolly, Davis, MacDonald, Kennedy, Rosier. [name films of books] 57 Maybe also a honeymoon couple. 58 __________ Pinkerton 59 The court then elaborated on its reasoning: The Arizona Supreme Court did not attempt to argue that the facts of this case supported an inference of "intent" in the traditional sense. Instead, the Arizona Supreme Court attempted to reformulate "intent to kill" as a species of foreseeability. The Arizona Supreme Court wrote: "Intend [sic] to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken in accomplishing the underlying felony." This definition of intent is broader than that described by the Enmund Court. Participants in violent felonies like armed robberies can frequently "anticipat[e] that lethal force . . . might be used . . . in accomplishing the underlying felony." Enmund himself may well have so anticipated. Indeed, the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen; it is one principal reason that felons arm themselves. The Arizona Supreme Court's attempted reformulation of intent to kill amounts to little more than a restatement of the felony-murder rule itself. Petitioners do not fall within the "intent to kill" category of felony murderers for which Enmund explicitly finds the death penalty permissible under the Eighth Amendment. 60 The majority sloppily used two different formulations: “reckless disregard” and “reckless indifference.” 61 Another one of my clients, a far more sophisticated one, did convert to Judaism – on a weekly basis. He discovered that all the Jews in a particular federal prison were taken out every Friday night to have Shabbat dinner in the homes of local Jews where they were treated to wonderful home-cooked meals. He told me that since he had become a Jew, he had gotten to love “those balls made out of fish and the other balls that they put in the chicken soup.” I reminded him that he had always been a very religious Catholic, and he said, “Oh I’m still a religious catholic. My priest has given me permission to be a Jew on Friday night as long as I go back to being a Catholic for Sunday morning.” 62 Whether he knew it or not, Holmes was echoing the views of the 15th Century Jewish sage Isaac Abravanal who observed that “experience is more forceful than logic.” 63 Porgy and Bess 64 In one case a client who was acquitted of murder was subsequently convicted of an entirely different type of crime. I did not represent him the second time. He was convicted. 65 Reversal of Fortune and Reasonable Doubts. 66 Sometimes the prosecutor seeks the death penalty simply to gain a tactical advantage at the guilt or innocence phase of the trial. This advantage derives from the fact that in death penalty cases, the prosecutor is entitled to a “death qualified” jury consisting of 12 people who have no conscientious objection to capital punishment and would be willing to sentence someone to death. Such jurors, according to jury experts, tend to be pro-prosecution in general and more likely to vote guilty at the trial. Prosecutors know this and ask for the death penalty even in cases not warranting it, simply to improve the chances of securing a conviction. Once they get their pro-prosecution jury, they sometimes decline to seek the death penalty. Early in my career, I was retained by F. Lee Bailey to prepare a petition for certiorari to the Supreme Court challenging this practice in the case of Miller v. California. The Supreme Court granted my petition for review, but then after oral argument by Bailey, the justices denied the review over a strong dissent. 67 Other tactics that I have experienced include:_____ 68 The same was true with regard to the “cocktail of death” theory, since no one could know which theory formed the basis for the conviction, or if some jurors found the first, while others found the second. If either theory failed, there would have to be a new trial. 69 This is what the court ruled: “Assuming that the statement was relevant to rebut the defense theories, we conclude that the district court abused its discretion under Shults in admitting the statement without an appropriate limiting instruction. The prejudicial impact was great:  the statement strongly implied Murphy killed Binion. Moreover, the relevance of the statement was equivocal, even though there was little other evidence of Binion's state of mind before his death.  But if the statement was relevant to show Binion's state of mind at the time he made the statement, the exception still does not allow the statement to be used as evidence of the intent or conduct of anyone else-in this case, Murphy.  The district court did not give a limiting instruction advising the jury that the statement was only admissible for the limited purpose of showing Binion's state of mind.” 70 There is a third category that combines mercy killings with mercy suicides. In another one of my cases, a mother engaged in the combined act of trying to kill her autistic and sexually abused son and trying to kill herself. She succeeded in the former and failed in the latter. She reasonably believed that the child’s biological father was repeatedly abusing the 8 year old autistic boy and that her former husband was planning to kill her, which would leave the child in the hands of his father. This phenomenon too has a name: altruistic filicide-suicide. At bottom it is a genre of mercy killing, although one with possible legal defenses of necessity (choice of evils) and justification (killing to protect her son). That case is pending as I write these words. 71 A strange analogy for Buchanan who has expressed admiration for Hitler and doubt that the Nazis gassed Jews during the Holocaust. 72 In another situation, a television ad by the organization J Street showed a video of my lips moving and a voice—not mine—saying words that I didn’t say. 73 I am comfortable describing this “defense,” since it was made public by him and his family. 74 In 2009, I challenged Justice Scalia, who has written that he would have to leave the Supreme Court if his constitutional views conflicted with his obligation to the Catholic Church, to debate this issue: I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings. He has done so, for example, with the great Rabbi Adin Steinsaltz, and with others as well. He also has debated me at the Harvard Law School. Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share. I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court. Scalia did not take up my challenge. 75 This is what the Court of Appeals had said in the Jeffrey MacDonald case: [W]e acknowledge that MacDonald has a daunting burden ahead in seeking to establish that he is eligible for habeas corpus relief solely because of his "actual innocence." The Supreme Court has only "assume[d], for the sake of argument . . ., that in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional." Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). The Court has yet to come across any prisoner who could make the "extraordinarily high" threshold showing for such an assumed right. Id.; see Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2321, 174 L. Ed. 2d 38 (2009) ("Whether [a federal constitutional right to be released upon proof of 'actual innocence'] exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet."). 76 One court put it this way: “if the carnal knowledge was with the consent of the woman, no matter how tardily given, or how much force had therefore been employed, it is no rape.” Reynolds v. Nebraska, 27 Neb. 90 (1889). 77 [get sources] 78 [Andrew Dworkin] 79 The dramatic reduction in rapes coincided with an equally dramatic increase in the easy availability of pornography, thus disproving the causation claim made by some radical feminists: that pornography causes rape. 80 In recent years numerous inmates serving time for rape based on eye witness identification have been exonerated by DNA. In these cases, the rapes occurred but the victim misidentified the rapist. Many of these cases involved black defendants misidentified by white victims. 81 I have never seen the entire film (see pages __ supra), but during the preview of a documentary about the film, I saw excerpts from it. 82 See Larry David’s “Buckner” episode on Curb Your Enthusiasm, where a psychiatrist tells Larry about his celebrity patients, without disclosing the names, while identifying them by unique characteristics: e.g., a well known film director who directed Star Wars. 83 This conversation suggests an important distinction between different types of celebrities and their relationship to the legal process. The first type consists of individuals who were already very famous before they got into trouble or before they needed my legal advice. Among my clients who fit this category are OJ Simpson, who was among the most famous football players in the country before he was accused of murdering his wife and her friend; Mike Tyson, who was even more famous around the world, because boxing is an international sport; Mia Farrow, the actress who had been married to Frank Sinatra and Andre Previn, and was involved in a bitter custody dispute with her long time lover Woody Allen; Marlon Brando, Robert Downey, Jr.; Ben and Casey Affleck, Brook Shields; Martha Sterwart; David Merrick, Frank Sinatra, David Crosby, John Lennon and several other actors, athletes and entertainers. Also included in this category would be President Bill Clinton, Israeli Prime Minister Benjamin Netanyahu, Israeli President Katzav, Senator Mike Gravell of Alaska, and Senator Alan Cranston of California. A second category of celebrities that I have represented are those who were not well known to the public but whose alleged crimes made them famous. Claus Von Bulow is a prime example of this phenomenon, as he made clear in his conversation with me. Also included in that category, at least to some degree, are Michael Milken, the financier; Conrad Black, the newspaper mogul; and Julian Assange of Wikileaks. A third category would include people who were somewhat well known, but whose trial brought them considerably more fame and/or infamy. Included in this category are Leona Helmsley, Abby Hoffman, Doctor Benjamin Spock, William Kuntsler and F. Lee Bailey. A final category includes very famous celebrities who have hired me to keep their name and alleged wrongs out of the media. I have had several such cases, and for obvious reasons, I cannot disclose the names of these celebrity clients. Nor can I disclose the names of clients who have successfully used their celebrity to avoid the consequences of their actions. 84 See Maureen Dowd, Maladroit Du Siegneur, N.Y.Times, 9/30/98, p.A23. (“He would be laughed out of any locker room in the country.”) 85 Prior to the Lewinsky matter becoming public, there were widespread reports that the President limited his extra-marital sex to oral gratification since he believed that it did not constitute Biblical adultery and it gave him verbal deniability regarding sexual relations. This history actually strengthens his legal claim that he did not commit perjury when he denied having what he regarded as sexual relations with Lewinsky. A 28 year old waitress was quoted by Newsweek as saying that as Clinton continuing to define sex more and more narrowly, she begins to think of herself as a virgin! 86 Paula Jones’ lawyer have subsequently revealed that the Jones lawsuit could have been settled at one point for no money with just a simple apology from President Clinton which made it clear that Paula Jones did not do anything wrong in the hotel room. 87 DeFunis v. Odegaard, 416 U.S. 312 (1974). 88 The current dean of admissions at Harvard College genuinely seeks diversity and has worked hard to recruit inner city Blacks. But at the time of the Bakke decision this was not nearly as true. 89 Most of the words were borrowed by Washington from the letter written to him by the Rabbi of the Truro Synagogue. 90 Nor would the composer of the original pledge who was an early socialist. 91 The irony is that the wall was essentially a contribution made by Baptists to America, is now being attacked by many Baptists. 92 Cite Jefferson 93 In at least one, a justice said—in passing—that “we are a Christian people.” But he then quickly added in the same sentence that we are a people who accord “to one another the equal right of religious freedom” (emphasis added). United States v. MacIntosh, 283 U.S. 605, 625. Justice Holmes, Brandeis Stone, and Hughes dissented. Justice O’Connor failed to mention this case. 94 Whether the same is true of the debate over capital punishment is a more complex issue, because of the unfairness and inequality in administering the death penalty. 95 Joseph P. Lash, Calendar Reform Tops Formosa Issue in Letter to U.N., N.Y. Post, April 21, 1955, p. 34, quoting a U.S. note to Secretary General Dag Hammarskjold. 96 Sunday New York Times, February 18, 1968. 97 Harvard Law School Bulletin, Summer 1978 98 [cite Best Defense, Chutzpah, articles] 99 An old Soviet dissident joke went this way: The leader of Czechoslovakia asked his Soviet masters for money for a Department of the Navy. The Soviet replied, “But you’re a landlocked country and don’t need a department of the Navy.” The Czech leader replied: “Well you have a Department of Justice.” 100 [get cite] 101 [get quotes] 102 As an early supporter of Human Rights Watch and an admirer of its founder, I have taken upon myself the responsibility of monitoring its actions very carefully—of guarding the guardians. I was particularly critical of its reporting on Israel’s war against Hezbollah in 20__, after Hezbollah fired thousands of rockets at civilian targets in the north of Israel. I focused on the highly publicized “conclusion” reached by Human Rights Watch allegedly after extensive “investigations” on the ground: “Human Rights Watch found no cases in which Hezbollah deliberately used civilians as shields to protect them from retaliatory IDF attack.” (emphasis added) After investigating a handful of cases, Human Rights Watch found that in “none of the cases of civilian deaths documented in this report [Qana, Srifa, Tyre, and southern Beirut] is there evidence to suggest that Hezbollah forces or weapons were in or near the area that the IDF targeted during or just prior to the attack.” No cases! None! Not one! That’s what Human Rights watch reported to the world. But anyone who watched even a smattering of TV during the war saw with their own eyes direct evidence of rockets being launched from civilian areas. Not Human Rights Watch. “Who are you going to believe, me or your lying eyes?” That’s not Chico Marx. It’s Human Rights Watch. Their lying eyes belonged to the pro-Hezbollah witnesses its investigators chose to interview—and claimed to believe. But their mendacious pens belonged to Kenneth Roth, HRW’s Executive Director, and his minions in New York, who know how to be skeptical when it serves their interests not to believe certain witnesses. How could an organization, which claims to be objective, have been so demonstrably wrong about so central a point in so important a war? Could it have been an honest mistake? I don’t think so. Despite its boast that “Human Rights Watch has interviewed victims and witness of attacks in on-on-one settings, conducted on-site inspections … and collected information for hospitals, humanitarian groups, and government agencies,” it didn’t find one instance in which Hezbollah failed to segregate its fighters from civilians. In arriving at this counter-factual conclusion, Human Rights Watch willfully ignored credible news sources, such as The New York Times, The New Yorker and other sources. After I exposed the double standard practiced by Human Rights Watch, its founder, Robert Bernstein, wrote the following in the New York Times. As the founder of Human Rights Watch, its active chairman for 20 years and now founding chairman emeritus, I must do something that I never anticipated: I must publicly join the group’s critics. Human Rights Watch had as its original mission to pry open closed societies, advocate basic freedoms and support dissenters. But recently it has been issuing reports on the Israeli-Arab conflict that are helping those who wish to turn Israel into a pariah state. Israel, with a population of 7.4 million, is home to at least 80 human rights organizations, a vibrant free press, a democratically elected government, a judiciary that frequently rules against the government, a politically active academia, multiple political parties and, judging by the amount of news coverage, probably more journalists per capita than any other country in the world — many of whom are there expressly to cover the Israeli-Palestinian conflict. Meanwhile, the Arab and Iranian regimes rule over some 350 million people, and most remain brutal, closed and autocratic, permitting little or no internal dissent. The plight of their citizens who would most benefit from the kind of attention a large and well-financed international human rights organization can provide is being ignored as Human Rights Watch’s Middle East division prepares report after report on Israel. Human Rights Watch has lost critical perspective on a conflict in which Israel has been repeatedly attacked by Hamas and Hezbollah, organizations that go after Israeli citizens and use their own people as human shields. These groups are supported by the government of Iran, which has openly declared its intention not just to destroy Israel but to murder Jews everywhere. This incitement to genocide is a violation of the Convention on the Prevention and Punishment of the Crime of Genocide.” Only by returning to its founding mission and the spirit of humility that animated it can Human Rights Watch resurrect itself as a moral force in the Middle East and throughout the world. If it fails to do that, its credibility will be seriously undermined and its important role in the world significantly diminished. 103 Amnesty International, which began as an organization dedicated to the freeing of political prisoners from repressive regimes and won the Nobel Peace Prize for its noble efforts, has now turned into a hard-left political lobby that elevates its ideology above its commitment to neutral advocacy for the victims of repression. Consider its 2005 report on rapes and honor killings perpetrated against Palestinian women by Palestinian men in the West Bank and Gaza. Such violence is a serious problem, especially in the Arab and Muslim world, because so few leaders within these groups are prepared to condemn it and so many even justify it as a necessary means of maintaining family honor and male dominance. The AI report documented honor killings of women who had been raped. In one such case a 17 year old girl was murdered by her own mother after she was “repeatedly raped by two of her brothers.” In another case, a 21 year old “was forced to drink poison by her father” when she was found to be pregnant. The AI report places substantial blame for these and other killings on Israel! Here is AI’s conclusion, listing the causes of the violence directed against Palestinian women, presumably in the order of their importance: “Palestinian women in the West Bank and Gaza Strip are victims of multiple violations as a result of the escalation of the conflict, Israel’s policies, and a system of norms, traditions and laws which treat women as unequal members of society.” The “escalation of the conflict” (which AI blames primarily on Israel) and “Israel’s policies” rank higher than the “norms, traditions and laws which treat women as unequal.” The report asserts that violence against women has “increased” dramatically during the Israeli occupation and has reached “an unprecedented level” as a result of the “increased militarization of the Israeli-Palestinian confrontation.” This is a deliberately false conclusion. In fact the number of such killings has gone down dramatically since the Israeli occupation. But if one were to believe the Amnesty International Report, it would be as if the West Bank and Gaza Strip had been violence free for Palestinian women until the Israeli Occupation. Following the publications of the Amnesty International report, I spoke with Donatella Rovera, who is AI’s researcher on Israel and the Occupied Territories and asked her to provide the data on which she had based her conclusion that violence against women had escalated to an “unprecedented level” during the occupation, and especially during its most militarized phase. I also asked her whether AI had compared violence against women in the occupied West Bank and Gaza with violence against women in unoccupied Arab-Muslim areas that have comparable populations, such as Jordan. Rovera acknowledged that AI could provide no such comparative data and confirmed that the report was based on anecdotal information, primarily from Palestinian NGOs. “We talk to anyone who would talk to us,” she said. When I asked her for a list of the NGO’s that were the sources of the information, she refused to provide them because “there are things we can simply not provide to outsiders.” I assured her that I was not interested in names or identifying features, but only in statistical data regarding the alleged trends cited in the report, but she still refused to provide anything more than a recommendation that we Google “pretty much all the NGOs” in the region. It is impossible under these circumstances for any outside researcher to replicate AI’s study and to confirm or disconfirm its conclusions. The NGO Monitor, an organization based in Jerusalem which analyzes reports made by other NGOs, blasted the AI report on the ground that “Palestinian men are condescendingly excused from taking responsibility for their actions.” This is true, as a careful reading of the AI report shows. Listen to the excuses AI provides: "Restrictions on movement and curfews which confine people to their homes for prolonged periods, and increased unemployment, poverty and insecurity, which have forced men to spend more time at home, as well as the increase in crowded conditions in the home, have contributed to the increase in violence against women, including sexual abuse, within the family.". By providing these “abuse excuses,” AI places its own political biases ahead of the interests of the female victims. The NGO Monitor correctly characterized the amnesty report as based on “biased sources” and lacking in “credibility.” It is also categorically false, as a simple matter of fact. But that doesn’t matter to Amnesty International, because the counter-factual “increase” in honor killings after the Israeli occupation fits its ideological and political agenda better than the truth. 104 The record of the UN Commission on Human Rights (UNCHR) on the matter is much the same. In March 1978 the United Kingdom petitioned the UNCHR to appoint a special rappourteur for human rights in Cambodia. Syria, the Soviet Union, and Yugoslavia blocked the move. Instead of appointing a rappourteur, the commission invited comment by the Khmer Rouge, referred the matter to a sub-committee, and (despite the ongoing genocide) delayed consideration of the matter until 1979. By the 1979 meeting of the commission, Vietnam had already invaded Cambodia and effectively ended the killings. Yet again, however, the commission delayed consideration of the Cambodia matter. 105 Quote Exodus and Esther 106 Eye on the UN, http://www.eyeontheun.org/browse-un.asp?ya=1&sa=1&ua=1&s=0&tp=1&tpn=Resolution. 107 American Jewish Committee, A Diminished Body: An Overview of the UN and Israel 5, http://www.ajc.org/atf/cf/%7B42D75369-D582-4380-8395-D25925B85EAF%7D/DIMINISHEWORLDBODYOVERVIEWUNISRAEL_2006.PDF. 108 UN Watch, UN, Israel & Anti-Semitism, http://www.unwatch.org/site/c.bdKKISNqEmG/b.1359197/k.6748/UN_Israel__AntiSemitism.htm. 109 Yiddish corruption of the Hebrew for “evil eye.” 110 [CITE] 111 More typical of spring than fall, when I teach. 112 Because of the draft, men and women were ranked separately. 4.2.12 WC: 191694 1