Alan Dershowitz has made a career out of his contrarian rhetoric. Usually a firebrand liberal, he caused a huge controversy -- and enjoyed it -- when he suggested after 9/11 that torture may have some necessity in the fight against Islamofascist terrorists. He continued challenging conventional wisdom today in a Los Angeles Times column that called into question the status of civilians in Lebanon and the Palestinian territories:

THE NEWS IS filled these days with reports of civilian casualties, comparative civilian body counts and criticism of Israel, along with Hezbollah, for causing the deaths, injuries and "collective punishment" of civilians. But just who is a "civilian" in the age of terrorism, when militants don't wear uniforms, don't belong to regular armies and easily blend into civilian populations?

We need a new vocabulary to reflect the realities of modern warfare. A new phrase should be introduced into the reporting and analysis of current events in the Middle East: "the continuum of civilianality." Though cumbersome, this concept aptly captures the reality and nuance of warfare today and provides a more fair way to describe those who are killed, wounded and punished.

There is a vast difference — both moral and legal — between a 2-year-old who is killed by an enemy rocket and a 30-year-old civilian who has allowed his house to be used to store Katyusha rockets. Both are technically civilians, but the former is far more innocent than the latter. There is also a difference between a civilian who merely favors or even votes for a terrorist group and one who provides financial or other material support for terrorism.

Finally, there is a difference between civilians who are held hostage against their will by terrorists who use them as involuntary human shields, and civilians who voluntarily place themselves in harm's way in order to protect terrorists from enemy fire.

I suspect that Professor Dershowitz will have some problems with his usual philosophical and political allies with this argument, although he certainly makes a good point. Most wars do not have bright delineation between civilians and combatants. In Eastern Europe, partisans abounded throughout the areas dominated by the Nazis, some of whom did a lot of damage to German military personnel. Their standard response was to conduct reprisals to the civilians they claimed supported the partisans, usually on a 10-1 basis for German casualties. The nadir of this policy came in the Czechoslovakian village of Lidice after the assassination of Reinhold "Hangman" Heydrich, the original author of the Final Solution and a brutal SS leader. The Nazis killed all of the men in the village, sent most of the women into labor camps, dispersed the children, and razed the town to the dust.

However, Dershowitz is not discussing reprisals against unarmed civilians, which are rightly war crimes. He wants a distinction made between civilians killed in the course of battles as to their involvement with the engagement, especially in terms of terrorist attacks. That sounds good in theory, and one could easily apply the same concept in Iraq -- where many of those killed during battles harbored insurgents, if not actively assisted them in targeting Americans or other Iraqis. One could also apply the same thought process in Afghanistan, and pretty much any place where terrorists stage attacks that get military responses.

In practice, however, it becomes much more difficult to do. One cannot interrogate dead people, and the bombs tend to destroy most of the evidence along with the civilians. Witnesses, such as neighbors and family, tend to see their loved ones as complete victims. It would be hard to imagine a Lebanese woman telling CNN that her dead husband often helped Hezbollah move arms or ammunition and therefore his death was justified.

Dershowitz obviously understands this. What he wants is the media to recognize the "continuum of civilianality" when reporting on war in general, and the Israeli conflicts specifically. I would find it helpful if the media remembered that the reason Israel attacks residential areas is because Hezbollah hides its operations in those areas to keep Israel from attacking them. That doesn't reflect on the status of the civilians in the area; it puts the blame on the casualties on the correct party -- the ones who base their attacks and hide their command and control positions among civilians.

His point about the complicity of civilians in these attacks should be well taken, although I doubt they will get much support. The better policy would be to focus on which party of the war attempts to minimize civilian casualties, and which sidem deliberately targets them for their own political purposes. The media should report more on which side wears uniforms and acts distinctly from civilian populations, and which side wears mufti and deliberately uses civilian populations as shields against counterattacks. That way when civilian deaths get discussed, we can have some moral clarity on which side gets the blame for it.

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