Abraham Wagner.

• Author: Wagner, Abraham
• Position: Conference to honor Professor Dershowitz

MR. WAGNER: Thank you. I am deeply honored to address this distinguished group of Professor Dershowitz's students and friends, and to be back with so many that have been my own friends and colleagues for many years. Today I would like to honor Alan Dershowitz, his scholarship and work is to relate some current concerns in the area of counter-terrorism to his unwavering devotion to both civil rights and the Constitution. And even though some of us, who are on the conservative side of the aisle, do appreciate the Constitution, although some who are currently serving in the administration do not fully appreciate the Constitution.

Rather than go over again many of the things Alan has written, I wanted to make a few comments here about what has been termed the "Global War on Terrorism" and some of the issues I see in terms of the challenge to the Constitution that I find deeply disturbing. As Paul Finkelman said, we've been friends for something like forty years now, and I've always kidded him as being slightly to the left of Lenin. He's always been describing me as being slightly to the right of Louis XIV; and possibly that we have both come a little closer toward the center. Indeed, during the past two presidential elections I did in fact work for the democratic candidates, largely because I had limited faith in those that occupied the White House and some very significant concerns about what those he appointed had been doing with respect to national security and intelligence.

As Prof. Finkelman has said, I have spent much of the past three decades, in several administrations at either the National Security Council staff or elsewhere in the defense and intelligence agencies. I have been fortunate to have earned both my law degree as well as a doctorate in International Relations, which gives me some insight into several sides of the problems we face. Frequently I am asked to speak at meetings where there are a number of government speakers as well, and they always start out by saying that they're an official of the government, and what they're saying doesn't represent and official government position and so forth. I normally begin by saying, I'm not in the government anymore; I teach at a university so nobody really cares what I say; and, I'm also a lawyer so nobody believes what I say.

There are two subtitles to my talk, which describe everything I have to say in a few short words. The first subtitle is, with respect to this war on terrorism, "Relax Chicken Little: The Sky Isn't Falling." I will speak more about this area and why this concern over terrorism is not quite what President Bush would have us think it is. And the other subtitle reflects the way the Bush administration has been approaching the law, and that is "The Constitution; It's Not an Option."

I would like to begin with a few of words about what has been termed the "Global War on Terrorism." The concern about terrorism has occupied a very substantial part of everything President Bush has said for the last seven years, but really a war on terrorism at all. There is no enemy we can identify as "terrorism," and this presents an enormous problem. It is, rather, a set of techniques used by some states and more commonly non-state actors for lack of better techniques, and, quite effectively in some cases. But it really is not in reality a war against any given state, and ultimately like the other waves of terrorism the world has seen over the last century will likely subside and ultimately burn itself out.

One of the analyses of this trend comes from historian David Rapoport, who considers modern terrorism in terms of four waves, beginning with the "Anarchist" wave in Russia in the 1890s, and looks at the current "Religious" wave having begun in 1979 with the Iranian Revolution and the Soviet invasion of Afghanistan. This current wave has a number of manifestations, but most are manifestations of Islamic fundamentalism and an effort to bring about profound change in the nations of the Middle East as well ass the West that would amount to a Second Caliphate.

It may be worth pointing out that in September of 1901 a terrorist came to the United States with the objective of killing the president, and he succeeded. That was September of 1901, and it was President William McKinley. President Theodore Roosevelt, who followed McKinley, immediately declared a worldwide war against terrorism. It is now more than a century later, and terrorism hasn't quite abated, although it has come and gone over the years. We are now seeing more balance in the discussion, with even some neo-conservatives such as Richard Haas at the Council on Foreign Relations and others, in saying that the threat from terrorist activities is not entirely the most serious problem facing Western Civilization that President Bush would have us think.

In the study of international and military affairs, which our students often refer to as the "death business" it is important to focus on the events and actual numbers involved. Here it is worth pointing out that since 1814, the United States has only suffered 3,000 deaths total from foreign invaders of all kinds. Before anyone corrects me with the case of Pearl Harbor, let me remind you that in 1944 Hawaii was not yet one of the United States. In any event, the number of domestic casualties is not large. Compare this problem with the annual death toll from smoking. The United States suffers approximately 457,000 dead a year from tobacco. If we need to address a real threat, quite possibly it's Phillip Morris, and not Osama Bin Laden.

There was some discussion yesterday about the State of Israel, which occupies a great deal of my attention, and Alan's as well. There are probably far greater threats in Israel from terrorists and bombers than we have in the United States, but the numbers tell a similar story there. In the seven years since the start of the Second Intifada, Israel has suffered approximately 1,800 deaths from Arab suicide bombers and terrorists...