Alan Dershowitz Provides Yet Another Example of Why You Should Never Take Legal Advice from a Law Professor

That old expression that "those who can't do, teach" also applies to law professors. That's at odds with what law professors would like you to believe, that they are experts in law. But if you want good legal advice, go to a lawyer with relevant experience. Law professors too often base their advice on their own ideas of legal theory, which may have no relation to real world experience.

Harvard Law Professor Alan Dershowitz gives us the latest demonstration of this principle in Thursday's Wall Street Journal (5/5/2011). First Dershowitz establishes his credentials as a Bin Laden deather:

"Although there should be no doubt that bin Laden is actually dead, there are grave doubts as to the circumstances surrounding his death. Was he shot in cold blood? Was he shot in the back or in the front? Were his hands raised in surrender? Was he actively resisting?"

Is Alan Dershowitz trying, just a week after Easter, to plant the subliminal idea that Bin Laden was shot through the palms of his open hands? Shame on Dershowitz for even obliquely suggesting such a blood libel.

Dershowitz then suggests that Bin Laden's death should be investigated as a homicide case:

"Many of these doubts could have been resolved if bin Laden's body had been subjected to the usual investigatory techniques routinely employed in homicide cases. His body should have been subjected to an autopsy, to forensic testing by an experienced medical examiner, to extensive photographing of entrance and exit wounds, to paraffin testing for gun-powder residue, and to other such forensic examination."

From homicide, Dershowitz goes on to insinuate destruction of evidence:

"Burying his body at sea constituted the willful destruction of relevant evidence, which naturally gives rise to suspicions that there was something to hide. ... But many reasonable people around the world will wonder whether the decision may also have been based on a desire to suppress the whole truth."

Dershowitz offers all of this a reason to see the photos taken of Bin Laden's body. Many reasonable people around the United States feel they have right to see those photos without the need to gin up a phony crime. Dershowitz continues his innuendo that a crime needs to be investigated:

"When a Muslim or a Jew is the victim of a homicide in the United States, religious considerations do not trump civil requirements. Their bodies are generally sent to the medical examiner for thorough examination. Notwithstanding religious prohibitions, autopsies are performed and organs removed for testing. No special exception should have been made for bin Laden's body."

That wanders quite bit off the field of the facts in this case as Osama Bin Laden was not the victim of a homicide in the United States. Deaths of combatants in war do not routinely get autopsied and no special exception was made for Bin Laden’s body. Dershowitz rests his case with an old, familiar bromide:

"The great Supreme Court Justice Louis Brandeis taught us nearly a century ago that 'sunlight is the best disinfectant.' The remaining evidence of how bin Laden was killed — the photographs and the results of any forensic tests that may have been hastily performed — should be exposed to the sunlight of publication."

You might be interested to know that Brandeis wrote this in 1913 and didn't become a Supreme Court Justice until 1916. Brandeis was writing in favor of legislation to compel investment bankers issuing securities to disclose all participants in the underwriting and the commissions or profits to be received by each. A real lawyer might build his case on an actual court decision on a relevant topic.

Lest you think Dershowitz wrote this in haste and repents in leisure, a longer version of the Wall Street Journal piece appeared in the Huffington Post.

Now I think the pictures will and should be released, but I also think that President Obama may be using the uncertainty about what may have happened to lock the other side into a story. The generals in Pakistan who may have hidden Bin Laden away in their old college town and retirement village of Abbottobad have to sweat out the possibility that Bin Laden is not dead, but alive somewhere spilling the beans to U.S. interrogators.

Pakistan's involvements with Bin Laden, Al Qaeda, and his allies in the Taliban are where the sunlight is needed to disinfect. The rest is just deflection.