I have always had a soft spot in my heart for Alan Dershowitz. He was my first year Criminal Law professor so many years ago. When I took the exam at the end of the semester, I thought I had failed. The questions were so confusing. Each hypothetical presented seemed to have a dozen issues and all of them could be decided either way. I was sure that my analysis of them was hash.
Modesty prevents my sharing the grade I actually received on the exam, but I learned that law school exams are generally constructed to throw out a lot of obvious and hidden issues that can, often, be argued either way. Sometimes, a feeling of confusion is a sign of success.
And Alan was (probably still is) a very entertaining lecturer and very approachable for students. I remember that he was like an excited little boy one Monday after a weekend during which he had met Woodie Allen in New York. I thought it ironic when he later represented Mia Farrow in her nastly legal battle with Allen.
Even when he's done things I disagree with (which is often), I have still liked Alan.
Now he's written what could be a fascinating and important book called Preemption: A Knife That Cuts Both Ways. In it he argues that the ability of small numbers of people to do apocalyptic damage may require us to rethink some of the tradeoffs that we make between personal liberty and privacy and security. Rather than just cling to old notions of what that balance should be, we need to develop a jurisprudence of preemption and prevention.
This is intriguing. One of the weaknesses of the current posture of Sentor Censure may be that he is committed to a notion of civil liberties that tries to place new circumstances into old categories. Treating the computer monitoring of electronic communications as a "search" in the same sense as entry into your home may not make sense. The idea that profiling is unfair because it may inconvenience persons based on immutable characteristics they share with suspected wrongdoers may need to be more rigorously balanced against the cost of not doing so and compromises reached.
I'm not saying - and I'd be shocked if Dersh, civil libertarian that he is - would say that this means we have to cede all authority to the state, but that we have to be prepared to think creatively, not reflexively, about how to respond to new threats.