Wednesday, May 28, 2025
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The famed legal scholar discusses his magnum opus, The Preventive State, why he wrote it now, and why it may never reach the audience it deserves.
Alan Dershowitz calls The
Preventive State his magnum opus—and for someone as prolific as he is,
that’s saying something. Often referred to as “the world’s best-known lawyer,”
Dershowitz has authored more than 50 books and over a thousand articles. But
it’s clear why this latest work stands apart. In The Preventive State,
he proposes a visionary jurisprudence designed not just to respond to harm, but
to anticipate and avert it—be it something on the scale of World War II or the
October 7 massacre.
At the heart of the book is an elegant and accessible framework: a four-quadrant matrix of true and false positives and negatives. With this structure, Dershowitz gives readers—experts and laypeople alike—a practical vocabulary for assessing risk and reimagining how the law might operate proactively rather than reactively. It’s a slim volume, yet it delivers a substantial punch, opening the door to a future where justice is not only fair but also preventative.
“You cannot prevent harm if you cannot predict it.” —Alan Dershowitz
Of course, any system
that emphasizes prevention carries the risk of overreach—of stifling freedoms
in the name of safety. The Preventive State doesn’t shy away from that
danger. Instead, it makes the case for a jurisprudence that allows people to be
both secure and free. But here’s the catch: the very person who authored this
powerful and timely work has, to a large extent, been canceled.
As Dershowitz explains in
the interview below, he doesn’t expect The Preventive State—his most
important book to date—to receive a review in The New York Times. Why?
Because the Times severed ties with him after he served on President Donald
Trump’s legal team during the first impeachment trial in 2020. Since then, the
once-reliable platform has ceased interviewing him and no longer covers his
books.
“The New York Times will not review my most important book—because I defended Donald Trump.”
It’s a bitter irony: a
book devoted to safeguarding democracy and civil liberties may be denied the
public attention it deserves because its author remains unapologetically
committed to due process—and to being, in his own words, an “outspoken Jewish
Zionist.” That, perhaps more than anything, ensures his exclusion from today’s
mainstream platforms.
More’s the pity.
***
Varda Epstein: Your book is titled The Preventive
State, which to some might sound authoritarian. How do you define it—and how
would you distinguish it from totalitarian systems?
Alan Dershowitz: Well,
prevention is good and authoritarianism is bad, and there’s the risk that
trying to prevent will create authoritarianism. There's no way of the state
engaging in preventive actions without diminishing certain liberties. Benjamin
Franklin said those who would give up essential liberties for a little security
deserved neither. But every government has always given up some liberties to
assure great security. If any of us could have prevented 9/11, or October 7th,
by arresting some people, even if we made some mistakes, we would have done it.
You know, we went much too far after the Second World War began when President
Roosevelt confined 110,000 Americans in detention centers in order to prevent
one or two acts of treason, and none of them occurred. So, it’s the question of
balancing, but if the balance is struck improperly, there is the potential for
authoritarianism, of course. That’s why I worry about the preventive state. On
the other hand, we’re always going to try to prevent. We’re never going to wait
until cataclysmic harm occurs. Every country has to confront those issues.
Israel’s confronting it right now with Iran. Should Israel go and prevent, as
they did Iraq and Syria, from developing weapons? And the United States
probably has a different view on that. So these are always the kind of
balancing decisions that we have to make.
Varda Epstein: You described Abraham as the first
lawyer. He pleaded with God to spare the innocent. Why would he choose to plead
for the innocent over eradicating evil?
Alan Dershowitz: Because
I think he understood that God could easily have come back and said, look,
Abraham, I’m God. I know who’s guilty and who’s innocent. I’ll kill only the
guilty and not the innocent. But God said he was going to kill everybody
because there were so many guilty people, and Abraham was the first one to
challenge authority by saying, no, you can’t overdo it. If you can’t separate
the innocent from the guilty, you have to spare everybody. And then God comes
back and basically says, yeah, but it depends how many innocent there are. And
then that’s when the negotiation begins—50, 40, 30, 20, 10, stops at 10. And that’s
been the number that we focus on in Anglo-American jurisprudence also, better ten
guilty go free than one innocent be wrongly confined. So, you know, there are
various concepts in the Bible that are instrumental in the preventive state.
Obviously, Abraham’s argument with God; the idea of punishing recalcitrant
children to make sure they don’t become dangerous adults; taking people who
have contagious diseases and putting them in isolation; the concept of exile
goes back thousands of years, and that’s what we’re doing now with deportation.
Deportation is simply a form of exile.
Varda Epstein: I’d argue that it’s just following the
law. I mean, if people are somewhere illegally, shouldn’t they be deported?
Alan Dershowitz: No, not
necessarily. Some of my relatives came into this country to escape Nazism, and
had false affidavits in order to get in because they couldn’t get in lawfully.
So sometimes you have to understand, it depends on the circumstances. If you’re
escaping from absolute brutality, the way they were escaping from Castro, you
have a different rule than if they’re trying to just get some economic
benefits. So, you know, the Torah has said, “Tzedek tzedek tirdof,” “Justice,
justice” and why two justices? Well, you know, one is justice with compassion,
and you have to have a little bit of compassion. But there’s a big difference
between people who sneak in in order to commit crimes or in order to evade
justice and people who come to save their lives.
Varda Epstein: You spoke in your book about how Great
Britain and France could have prevented World War II had they enforced the
Versailles Treaty early on, but you posited that perhaps they feared being seen
as warmongers. Do you think that’s the main reason they didn’t act?
Alan Dershowitz: Yeah. I
think they . . . first, I’m not sure they believed that Hitler would actually
do these things. So this was an example of a false negative where there was
evidence and information; they didn’t believe it, and they made a horrible
mistake. They could have saved 50 million lives. And, you know, we may be
making the same mistake now with Iran. If we believe that Iran is trying to develop
nuclear weapons . . .
Varda Epstein: Do you think democratic leaders today
still face this dilemma of being seen as warmongers, facing backlash for acting,
so they hesitate, and they hesitate too long?
Alan Dershowitz: Well, I
think some, it depends. You know, Israel would like to move preventively, as it
has. Much of my book, The Preventive State, is based on what I call, or
what has been called, the Begin Doctrine, that sometimes you just can’t wait to
be attacked. You have to take preemptive and preventive action. Israel’s been a
leader in that because it’s a tiny country; it’s very vulnerable; and it won’t
kill innocent civilians needlessly; whereas other countries are less protective
in their approach. So, I think there is the fear that the world would condemn
them. There’s this idiotic International Criminal Court that selectively
condemns only democracies, and I don’t think anybody should take seriously the
International Criminal Court. I think it should be ignored and ended, but there
are countries that, you know, England and France and others care about that.
Varda Epstein: At first after 9/11, Americans were
pretty accepting of the extreme security measures that were taken, such as in airports
with the creation of the TSA. You talked about society turning preventive to prevent
terror, right? Then, as time goes on, the fear slips away, people forget, go
back to normal, and no longer want these measures, resulting in pushback. Do
you think October 7th produced a similar kind of shift among the Israeli left, rendering
preventive measures more acceptable?
Alan Dershowitz: For a
while, but many, many in the Israeli left have “BDS,” Bibi Derangement
Syndrome. So, if Bibi’s doing it, it must be wrong, and many in the Israeli
left are making terrible mistakes about how they deal with this issue. So, you
know, the same thing is true in the United States with Trump Derangement
Syndrome, and so there’s too much of personal issues involved, both in Israel
and in the United States. Both have very controversial leaders, and the left
can’t believe that they would do anything for positive reasons.
Varda Epstein: Yeah. I always think that the fact that American
Jews voted for Kamala shows they hate Donald
Trump more than they love Israel. That’s how I felt about that.
Alan Dershowitz: I would
feel differently about that. I think they want to be more liberal than they
want to be Jewish, and they’re willing to vote, not their Jewish values or
their Jewish defense, but they want their friends to like them, and they want
to be seen as progressive and liberal. And they vote against their own
interests.
“They were killed because of Harvard. Because of Columbia.
Because of the way antisemitism is taught.”
Varda Epstein: Let’s talk about the couple that was
murdered last week, targeted because the attacker assumed they were Jewish.
That’s antisemitic no matter their religion, right?
Alan Dershowitz: So, one
was Jewish, the other was not. But it doesn’t matter. They were killed because,
whether they were Jews or not, they were killed because they were Jews. And
they were killed because of Harvard, and they were killed because of Columbia,
and they were killed because of the way in which the Ivy League schools and
many schools have been teaching, not just tolerating, but teaching
antisemitism. When you teach intersectionality, when you teach DEI, when you
teach critical race theory, you’re teaching antisemitism. And when you
encourage people, the way Kamala Harris and Walz, the vice presidential
candidate, encourage people to call for “Palestine will be free” and
“globalize the intifada,” you’re inciting murder. And so there’s a lot of blood
on the hands of university administrators and politicians.
“I’m an outspoken Jewish Zionist, and that will never
change.”
Varda Epstein: When should we limit speech? How far do
we allow it to go? Do we allow them to say “from the river to the sea”? Do we
punish it? Because maybe it would have prevented this?
Alan Dershowitz: No, in
my book The Preventive State, I have a whole chapter on free speech and
when it should be limited. I think the limitation has to be incitement towards
speech. And when you stand in front of a large crowd and you yell, “Globalize
the intifada,” that could be incitement. When you, however, just talk
abstractly about Israel not existing, that’s hate speech, but it’s free speech.
Hate speech is protected by the Constitution today. That may change. We may
experience over the next years with this current Supreme Court, a cutting back
a little bit of incitement and advocacy of violence. As we see more and more
violence, look, I predicted in my writings, I predicted what happened in D.C. I
predicted that, based on my experience in representing radical violent
protesters back in the 1960s and 70s, and some of them went on to become
terrorists. Kathy Boudin, who I helped represent, became a murderer and spent
many years in prison. The Weathermen became murderers. They also became friends
of Barack Obama. But these are people who Barack Obama befriended. These were
people who were regarded as legitimate. But they turned into terrorists. And I
think that’s going to happen here, too. I think supporters of Hamas, people who
support Hamas and who advocate the end of Israel, which is what “from the river
to the sea” and “globalize the intifada” means, there’s a risk that they may
start killing Americans. You know, Jews are always the first, they’re the
canary in the mine shaft, but as we see, it’s not always Jews that get killed,
but there’s going to be more of that. I’ve had to redouble my own personal
security.
Varda Epstein: Yeah. I saw you on Hannity.
Alan Dershowitz: It’s
true. I’ve always had some threats on my life, so I’ve been concerned about
security. But when I spoke just the other day at a college in Florida, I got an
honorary doctorate, and they had to have armed guards around me. They had to
have a whole process in place for what happens if somebody tried to attack me.
They gave me instructions of how do I leave, and will there be bulletproof
glass in front of me, and all of that. So, as a result of what happened in this
group at Columbia, I’ve had to redouble my own personal security because I’m an
outspoken Jewish Zionist, and that will never change.
Varda Epstein: I wanted to talk about the false positive
that was your swatting incident that happened to you and your wife. It was a
horrible thing, obviously traumatic, but you said it was the right thing. They
made the right move.
Alan Dershowitz: Oh, of
course. They got a call. They said that there was violence going on in my
house. It was, you know, middle of the night, banging on the door, “If you
don’t open the door, we’ll break it down.” And they came in with their guns
drawn, and they could have easily shot somebody if I had made the wrong move. I
was half asleep, I was getting up, and it was a very, very dangerous situation.
It was quite deliberate, and we’re going to see more of that. We’re going to
see much, much more violence. That, of course, is illegal, but you have to
catch the person. And in my case, they haven’t caught the person who did this
because it’s very easy to place an anonymous 911 call, and thankfully, the
police respond to all these calls. Soon they’ll stop, because they’ll say
they’re false alarms, and that will hurt the people who are really in trouble.
I have a friend, a policeman who was killed in a domestic violence shootout,
because he wouldn’t take the first shot to kill the person who was holding the
woman hostage, because he was afraid he would kill her. And then he was shot
and was killed. These kinds of situations, swats and everything, are very, very
dangerous and have to be taken much more seriously than they’ve been taken.
Varda Epstein: And we need to make some kind of protocol
according to your book. Okay, so on the other side of that, then, would be a
false negative and preventable harm. So, what’s an example of one that stands
out to you as a devastating false negative, what should have been caught?
Alan Dershowitz: The
worst, of course, was World War II, the greatest example in history of a false
negative. I would say after that, probably 9/11, October 7th, they could have
been caught. October 7th was a disaster because Israel had a lot of the
information that should have led them to take preventive actions. And because
some of the information was provided to them by these women who were serving in
the front line, some of them with emotional issues, the men who were in charge
didn’t take these women seriously, and I think this was a situation where
sexism contributed to this disaster.
Varda Epstein: Absolutely, absolutely, I’m with you on
that.
Alan Dershowitz: By the
way, let me add something. I met these women. I went there before this
happened, and I sat with them, and they were absolutely incredible. They would
be sitting with their television screens, and if they saw a rabbit, they would
notice it, if they saw anything, they would notice it. And these were our front
line defenses against terrorism, and the men in charge of the very macho
Israeli army didn’t take them seriously, and that was kind of a disaster.
Varda Epstein: How do you see the role of AI playing in
predicting or preventing harm, especially in legal or national security
contexts?
Alan Dershowitz: It’s a
double-edged sword. It can help prevent crime because it has this incredible
predictive ability based on putting together enormous amounts of information to
anticipate what might happen. But AI is itself a potential danger. It can
intrude on people’s privacy, it can create its own problems. So I think, on
balance, AI is helpful in preventing, but one has to constrain and control
every scientific development, including AI.
Varda Epstein: You say that you’ve been thinking about
prevention since the 1960s? So, why did you write The Preventive State,
now?
Alan Dershowitz: Well,
you know, I’ve written articles about it, and I never had, in my own mind, the
answers. I had the questions, but I didn’t have the answers, and it took me a
long time to think through how to create a jurisprudence. And finally, you
know, at age 86, with the benefit of a lot of experience and a little bit of
chutzpah, I decided to set out my answers, and so here it is, my magnum opus,
my 57th book, for those of us old enough to remember Heinz 57 flavors. So,
finally, I was ready, and I think this is my most important book, but of
course, the New York Times will not review it because once I defended Donald
Trump, they stopped reviewing my books, and they stopped interviewing me
mostly. And then they tried to cancel me because they don’t like who my clients
are, and so I hope people will read the book on Amazon and learn from it. Even
though you can disagree with some of its conclusions, I think you can’t argue
with the fact that we live in an increasingly preventive state, and so we have
to deal with those issues in a moral and calculated and balanced way.
Varda Epstein: You have an appendix. But it’s the end of
your book. Why did you end with a critique of rabbinic law?
Alan Dershowitz: Well
it’s not a critique. It’s that rabbinic law goes too far, and so did much
classic law, much of which was based on rabbinic law. Went too far, but it asks
the right questions. I’m a big fan of rabbinic law, because almost every issue
that I taught in my 50 years of teaching at Harvard, the questions had been
raised by rabbis and by those who wrote the Torah. But they didn’t always get
the answers right. And so I just thought it would be interesting to put in the
book ancient sources that gave rise to some of the modern approaches. And I,
you know, when I taught at Harvard, I would always introduce rabbinic law and
Torah law into my classes, because almost every issue was addressed, which is
amazing because they weren’t really in control of an active society. They were
writing more in the abstract or for their own community, because, you know,
until 1948, there was no country to which to apply Jewish law, that was just a
community, but they did a remarkable job in raising these unbelievably complex
problems and resolving them.
Varda Epstein: You own a letter from George Washington
about urging smallpox inoculation. So, what drew you to that artifact?
Alan Dershowitz: Two
things. One, I was writing about this issue, and I wanted to own a piece of
history in which Washington not only urges everybody to get inoculated, but as
commander-in-chief of the Revolutionary Armed Forces, he commands that, he says,
basically, you have to do it, you have to do it quickly, otherwise we can lose
the war based on smallpox. Second, the letter is fascinating because it’s signed
by George Washington and dictated by George Washington, but the three pages are
written by Alexander Hamilton, his secretary. So it has the three things in it.
I love the writings of Alexander Hamilton, I’m a great admirer of George
Washington, and the concept of prevention is in there, so it worked perfectly.
Varda Epstein: What’s next for Alan Dershowitz? Do you
have any other momentous topics to write about?
Alan Dershowitz: Of
course, I always do, you know, on the way to being buried, I will probably try
to be dictating a final op-ed. I write every single day. I’m writing a book now
tentatively entitled Trump to Harvard, Go Fund Yourself. It’s a cute
title, and it tries to strike the appropriate balance. I don’t think that the
government should be cutting off research funds or funds from scientific,
medical, but they should be cutting off funds from the Divinity School, Public
Health School, the Carr Center for Human Rights, all of which are incubators
for antisemitism. So I want to see targeted defunding and targeted denial of
visas. For example, in the 1930s, Harvard loved Nazis, the president of
Harvard, Conant, was a Nazi lover, he loved Germany. He brought professors from
Nazi Germany and students, and of course the United States said, no, we’re
cutting off the visas. Many, many liberals would have applauded that, but they
don’t applaud it now, and it’s too broad. We shouldn’t be cutting back on all
the visas for all students, but only for the ones that are fomenting dangerous
activities on campus and contributing to an atmosphere that led to the death of
these two young, wonderful people.
***
📚 Book Information
Dershowitz, Alan. The Preventive State: Preempting Cataclysmic Harm while Preserving Fundamental Liberties. New York: Encounter Books, 2024. ISBN: 9781641774401.
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"He's an Anti-Zionist Too!" cartoon book (December 2024) PROTOCOLS: Exposing Modern Antisemitism (February 2022) |
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